United States Department of the Interior OFFICE OF HEARINGS AND APPEALS

Interior Board of Land Appeals N . Quincy Street, Suite 300

Arlington, Virginia 22203

703-235-3750 703-235-8349 (fax)

April 6, 2010

2010-78 CACA-26400

KENNETH D. SHAYNE Linear Rental

Decision Affirmed; Petition for Stay Denied as Moot

ORDER

Kenneth D. Shayne has appealed from and petitioned for a stay of the effect of a December 22, 2009, decision, styled as "Bill for Collection" (No. 2010017418), of the Palm Springs/South Coast (California) Field Office, Bureau of Land Management (BLM), requiring payment of annual rental for calendar year 2010 in the amount of $925.95 for linear right-of-way (ROW) CACA-26400.

The record shows that BLM properly calculated the 2010 rental for the ROW. For that reason, we affirm BLM's decision and deny the petition for stay as moot.

BLM granted the ROW at issue to Shayne on December 21, 1992, effective January 1, 1993, for a term of 30 years, subject to renewal, pursuant to Title V of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 §§ 1761-1771 (2006), and its implementing regulations, 43 C.F.R. Part 2800. The ROW consists of two segments, one 6,000 feet long and 40 feet wide and the other 900 feet long and 20 feet wide, covering a total of 5.9 acres of public land in the sec. 24, T. 3 S., R. 6 E., San Bernardino Meridian, Riverside County, California. The ROW provides road and utility access to Shayne's 40-acre private land parcel in the

sec. 23 of the township.

Section 3 of the ROW Grant stated that fair market value rental as determined by BLM would be calculated "[p]er 43 CFR 2803.1-2(c)(l)(i), 1991 Edition, Per Acre Rental Fee Zone Value Schedule." For linear FLPMA ROWs, BLM provided for computation of annual rental in accordance with a per acre rental fee schedule, in lieu of an individual appraisal. See 43 C.F.R. § 2803.1-2(c)(l) (1993). Such rental was to be calculated by multiplying the rental per acre taken from the current schedule by the number of acres embraced in the grant, rounded to the nearest whole dollar. 43 C.F.R. § 2803.1-2(c)(l)(iv) (1993); Mr. Mrs. H. Murray,

Background

2010-78

IBLA (1990). The rental per acre for an ROW was determined on the basis of the "zone" in which the ROW was located, and the schedule providing the appropriate per acre rental fee for the zone, depending on the type of ROW.

BLM amended its Part 2800 regulations effective December 1, 2008, adopting a new per acre rental fee schedule for the determination of rent for linear ROWs. See 43 C.F.R. §§ 2806.20 and 2806.23(a); 73 Fed. Reg. 65040, 65042 (Oct. 31,

Under those regulations, BLM assigned counties (or other geographical areas) to a "County Zone Number and Per Acre Zone Value" based on 80 percent of their average per acre land and building value published in the 2002 Census of Agriculture prepared by the National Agricultural Statistics Service (NASS), U.S. Department of Agriculture.2 43 C.F.R. § 2806.21. Rental was to be calculated by multiplying the rent per acre for the appropriate county zone, taken from the updated rental fee schedule, by the number of acres in the right-of-way area. 43 C.F.R. § 2806.23(a).

In accordance with the original schedule, BLM established an annual rental rate of $74 for the ROW, charging Shayne a total of $370 for the five years of his ROW term, pursuant to 43 C.F.R. § 2803.1-2(a) (1993). Shayne continued to pay rental according to the applicable schedule through December 31, 2007.3

Inexplicably, BLM appears not to have billed Shayne for any rent for calendar year 2008 or calendar year 2009. The case record does not contain any evidence of a

In its 2008 rulemaking, BLM noted that the amendment was in furtherance of section 367 of the Energy Policy Act Pub. L. No. Stat. 594, 726, which directed the Secretary "to: (1) Update 43 CFR 2806.20, which contains the per acre rent schedule for linear rights-of-way; and (2) Revise the per acre rental fee zone value schedule by state, county, and type of linear right-of-way uses to reflect current values of land in each zone." 73 Fed. Reg. at 65040. It further noted that the zone values established in 1987 were never updated, even though "land values increased significantly in most areas from 1987 to the present." Id.

The 80 percent values were set out in the 2008 rulemaking in the "Adjusted 2002 Per Acre Land and Building Value and Rent Schedule Zone" (Rent Schedule Zone which provided the 80 percent value and respective rent schedule zone by state and county. 73 Fed. Reg. at 65075 through see 43 C.F.R. § 2806.20(a).

BLM issued a June 2004, Bill for Collection for rent for the second period from Jan. 1, 1998, to Dec. 31, 2002, and for the third 5-year period from Jan. 1, 2003, to Dec. 31, 2007, in the total amount of $747.55. Shayne paid that amount on Sept. 23, 2004.

2

IBLA 2010-78

bill being sent to Shayne for calendar year 2008. For calendar year the record contains a November 3, 2008, Bill for Collection. However, the Bill contains a handwritten notation stating: "Cancelled 1/15/08 [clearly 1/15/09] not due until 1/1/2010." There is no evidence in the record that Shayne paid any rental for the ROW for either calendar year 2008 or calendar year 2009.4

On December 22, 2009, BLM issued the decision in question requiring the payment of annual rental in the amount of $925.95 for calendar year 2010. BLM based the decision on the fact that the ROW was located in County Zone 7, which required a per acre rental value for calendar year 2010 of $156.94.5 See 73 Fed. Reg. at 65051 (Table 6-2008-2015 Per Acre Rental Schedules). Since the consisted of 5.9 acres, this translated into a total rental value for the ROW of (rounded to $925.95).

Shayne appealed and petitioned for a stay of the imposition of the rental. In his one-page notice of appeal/petition for stay, Shayne objects to BLM's decision to increase his annual rental on the basis that BLM has put him in "the wrong zone," since he is "an Individual and not a Business and my Right-of-Way is in the middle of nowhere." He asserts that his lands are completely surrounded by "BLM property"; that the ROW is his only means of access to his private lands; and that under State law he would be to an easement by necessity at no cost.6

Discussion

BLM is mandated by section 504(g) of FLPMA, and its implementing regulations, to require the holder of a FLPMA ROW to pay annually, in advance, its "fair market value," as determined by BLM. 43 § 1764(g) (2006). BLM computed annual rental for Shayne's ROW for calendar year 2010 based on the per acre rental value for County Zone 7 lands, taken from the current rental fee schedule. Shayne objects to BLM's determination to place his ROW in County Zone 7, which

The 2008 regulations stated that BLM would phase-in use of the new schedule "by reducing the 2009 per acre rental by 25 percent." 43 C.F.R. § 2806.23(b).

In its 2008 rulemaking, BLM placed all of Riverside County, California, in County Zone 7, based on the fact that in 2002 80 percent of the average per acre land and building value in the county, as determined by the NASS, was $3,864. See 73 Fed. Reg. at 65049, 65078.

In a separate decision dated Feb. 23, 2010, BLM considered Shayne's request for a waiver or reduction of his annual rental, pursuant to 43 C.F.R. § 2806.15(c), based on his claim of hardship. Shayne has appealed that decision to the Board. It is docketed as IBLA 2010-97.

IBLA 2010-78

means that the per acre rental value is $156.94, for calendar year 2010, rather than the former $13.12, which was used by BLM to calculate rent for the 5-year period ending December 31, 2007. While he argues that BLM selected the "wrong zone" because he is an individual and not a business, he offers no evidence to support such a distinction. His ROW is located in Riverside County, California, and the Rent Schedule Zone Table shows that county in County Zone 7.

Even if the Rent Schedule Zone Table, which appeared in the 2008 rulemaking, were not considered a "regulation" because it is not published in the Code of Federal Regulations, the rulemaking was signed by the Assistant Secretary, Land and Minerals Management. See 73 Fed. Reg. at 65071. Therefore, BLM's designation of Riverside County as County Zone 7 is not reviewable by this Board. See, e.g., Blue Star, Inc., 41 IBLA 333, 335 (1979).

Shayne's argument concerning an easement by necessity is misplaced for a number of reasons. An easement by necessity arises when one conveys to another land entirely surrounded by his, the grantor's, land, or which is accessible only across either the grantor's land or the land of a Francis M. 145 IBLA 105, 107 (1998), quoting from 3 Tiffany, Real Property § 793, at 284-86 (3d ed. 1939) . In this case, there is no evidence of who the grantor of Shayne's 40-acre parcel was. Nor does the record support Shayne's assertion that his private land parcel is completely surrounded by lands administered by BLM. See Coachella Valley Association of Governments Map, dated July 23, 2008. Rather, BLM land lies only to the east of his parcel. Moreover, this is not a situation where BLM is denying Shayne access to his private land. In fact, he has access and has had access since the granting of the ROW, effective January 1, 1993. Having granted Shayne a FLPMA ROW, BLM is obligated to collect fair market rental for its use.

BLM properly required payment of annual rental for Shayne's ROW for calendar year 2010 in accordance with the current rental fee schedule.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the decision appealed from is affirmed, and Shayne's petition for a stay is denied as moot.

IBLA 2010-78

I concur:

5