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<br />" <br /> <br />G>>o.:;;:::. United Slates <br />, (fWi Depariment of <br />'~ Agriculture <br /> <br />AUG ~ 8 2000 <br /> <br />GHlce of the <br />General .. <br />Counsel <br /> <br />" .. ':, WaShington, <br />, "b,c" <br />20250-1400 <br /> <br />MEMORANDUM FOR PAUL BROUHA <br />ASSOCIATE DEPUTYUlIEF <br />NATIONAL FOREST SYSTEMS <br /> <br />FROM: Janet A. Poling ~~r <br />Associate General Counsell:? 0' 1/ -, ,1 <br />Natural Resources <br /> <br />~ <br /> <br />SUBJECT: <br /> <br />vfc/2,{1a' <br /> <br />. <br /> <br />Authority to impose conditions under the "Ditch Bill" amendments to <br />the Federal Land Policy and MaJlagement Act <br /> <br />Issue: ,You have asked for oUr opinion,on,several. issues.related,to. the i,mpositionof conditions <br />in pennanent easements issued by the Forest Service under the authority of section 501 (c) ofthe <br />Federal Land Policy and Management Act of 1976 (FLPMA), 43 U,S.c. 17Dl(c), This section <br />was added to FLPMA in 1986 by the so-called "Ditch Bill" provisions of Public Law 99-545, . <br />100 Stat. 3047, October 27,1986, We have set out your inquiries and provided our advice for <br />each question below. <br /> <br />, Issue #1 - A "Reopener" Provision in Ditch. Bill Easements <br /> <br />Question # lA: Do you concur with the opinion that the Ditch Bill easements are a type of <br />specialuse authoripltion as defined in the regulations at 36 CFR 25land are subjection to <br />the review/revision provisions of our regulation? Does the term "permanent" in P.L. 99-545 <br />supercede the provisions of other sections ofFLP:MA, and our regulations at 36 C.F.R. 251, <br />, , <br />and therefore preclude the Forest Service from including a periodic "re-ol;lener" ,clause in a <br />Ditch Bill easement? ' <br /> <br />Short Answer: We concur that a Ditch Bill easement is a type of special use authorization as <br />defined iIi the' regulations' of the Forest Service for the implementation ofFLPMA at 36 C,F ,R, <br />Pait 251. The use dthe tenn "pennanent" in Public Law. 99-545 does not conflict With the <br />requirement of36 C;F,R. S251.56(b) to revise terms and conditions of authorizations that exceed <br />30 years (which would include permanent easements) at specified intervals to reflect changing <br />times and conditions, Notwithstanding the permanent nature of the Ditch Bill easements, we find <br />that such easements are subject to the periodic reviewlrevision provisions of36 C.F,R. <br />S25L56(b). <br /> <br />Page 1 of 14 <br /> <br />. <br />