sell at public auction for not less than the appraised fair market value any tract of public lands not exceeding 120 acres which on or before September 26, 1968, was affected by unintentional trespass by the owner or user of contiguous lands and which he finds is not needed for public purposes and contains some land that has been or can be put to cultivation.

(b) The Secretary of the Interior has full discretion to determine whether land should be ordered into market under the regulations of this part. Factors that will be taken into consideration in making these determinations are described in Subpart 2410 of this chapter. Lands which are valuable for minerals will not be sold unless the minerals can be reserved to the United States under existing law. (See 30 U.S.C. section 21.)

(c) Only tracts of public land that are classified by the authorized officer under the criteria and procedures in Part 2410 of this chapter can be sold pursuant to the regulations in this section.

§ 2785.1 Procedures.

The provisions of Subpart 2710 apply to sales under this section except that the owner of contiguous lands who wishes to assert his preference right must offer to purchase the lands at the highest bid received. A credit, determined by the authorized officer, will be given to a preference right purchaser for any value added to the land by him or his predecessors in interest during any period of unintentional trespass.

§ 2785.2 Trespass charges.

Purchase of lands in accordance with the act and these regulations shall not relieve any person from liability for unauthorized use of the lands while title was in the United States.

Group 2800-Use, Rights-of-Way

AUTHORITY: The provisions of this Subpart 2800 issued under R.S. 161, 453, 2478; 5 U.S.C. 301, 43 U.S.C. 2, 1201, unless otherwise noted.

SOURCE: The provisions of this Subpart 2800 appear at 35 F.R. 9633, June 13, 1970; 35 F.R. 10661, July 1, 1970, unless otherwise noted.

§ 2800.0-1

Purpose.

(a) This part applies to all rights-ofway covered by §§ 2800.0-1 and 2800.0-5, subparts 2801 and 2802, §§ 2810.0-3, 2810.0-5, subparts 2811, 2821, 2881, 2882, and parts 2850, 2860, 2870, and 2890.

(b) This does not apply to the obtaining of rights-of-way by Federal agencies over unreserved, or withdrawn, or reserved public domain lands. Such rights-of-way may be appropriated under the principles of the instructions of January 13, 1916 (44 L.D. 513), with

the consent of the agency having jurisdiction or control over the land.

(c) All general right-of-way laws, and the regulations thereunder contained in this subpart, are applicable to Alaska. (See sec. 3 of the act of August 24, 1912 (37 Stat. 512; 48 U.S.C. 23), and 30 Op. Atty. Gen. 387 (1915.)

§ 2800.0-5 Definitions.

(a) "Secretary" means the Secretary of Transportation.

(b) "Director" means the Director, Bureau of Land Management.

(c) "State Director" means State Director of the Bureau of Land Management, or his authorized representative.

(d) "Manager" means manager of the land office for the district in which the lands applied for are situated (see § 1821.2-1 of this chapter).

(e) "Project" means the physical structures in connection with which the right-of-way is approved.

(f) "Construction work" means any and all work, whether of a temporary or permanent nature, done in the construction of the project.

(g) "Superintendent in charge" means the officer of the United States having supervision of the land under authority of the agency having jurisdiction and control over the land involved.

(h) "Reservation lands" includes national parks and monuments, or any other reservations of the United States for the use of or administration by the National Park Service, the Fish and Wildlife Service, the Bureau of Reclamation, or any agency outside the Department of Transportation.

(i) "Right-of-way" includes license, permit, or easement, as the case may be, and, where applicable, includes "site". Subpart 2801-Nature of Interest

SOURCE: The provisions of this Subpart 2801 appear at 35 F.R. 9634, June 13, 1970, unless otherwise noted.

§ 2801.1 Nature of interest granted; settlement on right-of-way; rights of ingress and egress.

§ 2801.1-1 In form of easement, license, or permit.

No interest granted by the regulations in this part shall give the holder thereof any estate of any kind in fee in the lands. The interest granted shall consist of an easement, license, or permit in accordance with the terms of the ap

plicable statute; no interest shall be greater than a permit revocable at the discretion of the authorized officer unless the applicable statute provides otherwise. Unless a specific statute or regulation provides otherwise, no interest granted shall give the grantee any right whatever to take from the public lands or reservations any material, earth, or stone for construction or other purpose, but stone and earth necessarily removed from the right-of-way in the construction of a project may be used elsewhere along the same right-of-way in the construction of the same project.

§ 2801.1-2 Disposals subject to right-of

way.

All persons entering or otherwise appropriating a tract of public land, to part of which a right-of-way has attached under the regulations in this part, take the land subject to such right-of-way and without deduction of the area included in the right-of-way.

§ 2801.1-3 Right of ingress and egress to a primary right-of-way.

In order to facilitate the use of a right-of-way granted or applied for under the regulations of this part, the authorized officer may grant to the holder of or applicant for such right-ofway an additional right-of-way for ingress and egress to the primary right-ofway, including the right to construct, operate, and maintain such facilities as may be necessary for ingress and egress. The holder or applicant may obtain such additional right-of-way only over lands for which the authorized officer has authority to grant a right-of-way of the type represented by the primary rightof-way held or requested by the applicant. He must comply with the same provisions of the regulations applicable to his primary right-of-way with respect to the form of and place of filing his application for an additional right-of-way, the filing of maps and other information, and the payment of rental charges for the use of the additional right-of-way. He must also present satisfactory evidence that the additional right-of-way is reasonably necessary for the use, operation, or maintenance of the primary right-of-way.

and through lands under the jurisdiction of the Department of the Interior or of its agencies and to use and occupy such lands in advance of the approval of a right-of-way may be granted by the manager upon a satisfactory showing of the necessity for such action and upon a determination, after the request for permission has been cleared by all interested agencies of the Department, that such action is compatible with the public interest. Requests for such advance authority need not meet the formal requirements of § 2802.1 to § 2802.1-4 and may be filed with the agency having supervision of the land involved, in which case a duplicate request must be filed in the office specified in § 2802.1.

(2) Any grant of advance permission is solely for the convenience of the applicant and is not a commitment by the Department that a right-of-way will be approved. The Department's authority in acting on a right-of-way application is not restricted in any way by the grant of advance permission or any requirements laid down in such grant of permission and the Department may impose additional or different requirements, within the scope of the applicable statute and lawful regulations thereunder, as conditions precedent to the approval of the right-of-way. A grant of advance permission is revocable at will, and the grantee assumes all the risk of operating under such permission.

L (b) Unauthorized occupancy. Any occupancy or use of the lands of the United States without authority will subject the person occupying or using the land to prosecution and liability for trespass. § 2801.1-5

Terms and conditions.

An applicant, by accepting a right-ofway, agrees and consents to comply with and be bound by the following terms and conditions, excepting those which the Secretary may waive in a particular

case:

(a) To comply with State and Federal laws applicable to the project for which the right-of-way is approved, and to the lands which are included in the rightof-way, and lawful existing regulations thereunder.

(b) To clear and keep clear the lands within the right-of-way to the extent and in the manner directed by the superintendent in charge; and to dispose of all vegetative and other material cut, uprooted, or otherwise accumulated during the construction and maintenance of the

project in such manner as to decrease the fire hazard and also in accordance with such instructions as the superintendent in charge may specify.

(c) To take such soil and resource conservation and protection measures, including weed control, on the land covered by the right-of-way as the superintendent in charge of such lands may request.

(d) To do everything reasonably within his power, both independently and on request of any duly authorized representative of the United States, to prevent and suppress fires on or near the lands to be occupied under the right-ofway, including making available such construction and maintenance forces as may be reasonably obtainable for the suppression of such fires.

(e) To build and repair such roads, fences, and trails as may be destroyed or injured by construction work and to build and maintain necessary and suitable crossings for all roads and trails that intersect the works constructed, maintained, or operated under the right-ofway.

(f) To pay the United States the full value for all damages to the lands or other property of the United States caused by him or by his employees, contractors, or employees of the contractors, and to indemnify the United States against any liability for damages to life, person or property arising from the occupancy or use of the lands under the right-of-way, except that where a rightof-way is granted hereunder to a State or other governmental agency which has no legal power to assume such a liability with respect to damages caused by it to lands or property, such agency in lieu thereof agrees to repair all such damages. (g) To notify promptly the superintendent in charge of the amount of merchantable timber, if any, which will be cut, removed, or destroyed in the construction and maintenance of the project, and to pay the United States through such superintendent in advance of construction such sum of money as such superintendent may determine to be the full stumpage value of the timber to be so cut, removed, or destroyed.

(h) To comply with such other specified conditions, within the scope of the applicable statute and lawful regulations thereunder, with respect to the occupancy and use of the lands as may be found by the agency having supervision of the lands to be necessary as a con

dition to the approval of the right-ofway in order to render its use compatible with the public interest.

(i) That upon revocation or termination of the right-of-way, unless the requirement is waived in writing, he shall, so far as it is reasonably possible to do so, restore the land to its original condition to the entire satisfaction of the superintendent in charge.

(j) That he shall at all times keep the manager informed of his address, and, in case of corporations, of the address of its principal place of business and of the names and addresses of its principal officers.

(k) That in the construction, operation, and maintenance of the project, he shall not discriminate against any employee or applicant for employment because of race, creed, color, or national origin and shall require an identical provision to be included in all subcontracts.

(1) That the allowance of the rightof-way shall be subject to the express condition that the exercise thereof will not unduly interfere with the management, administration, or disposal by the United States of the lands affected thereby, and that he agrees and consents to the occupancy and use by the United States, its grantees, permittees, or lessees of any part of the right-ofway not actually occupied or required by the project, or the full and safe utilization thereof, for necessary operations incident to such management, administration, or disposal.

(m) That the right-of-way herein granted shall be subject to the express covenant that it will be modified, adapted, or discontinued if found by the Secretary to be necessary, without liability or expense to the United States, so as not to conflict with the use and occupancy of the land for any authorized works which may be hereafter constructed thereon under the authority of the United States.

§ 2801.1-6 Proposed or existing national forest.

Whenever a right-of-way is sought through or in national forest lands, or any area withdrawn for inclusion within a national forest, the applicant must enter into such stipulations and execute such bond as the Forest Service may require for the protection of such existing or proposed national forest.

(a) The act of March 3, 1921 (41 Stat. 1353; 16 U.S.C. 797), provides that no right-of-way for dams, conduits, reservoirs, power houses, transmission lines, or other works for storage or carriage of water, or for the development, transmission, or utilization of power within the limits as then constituted of any national park or monument, shall be approved without specific authority of Congress.

(b) Pursuant to any statute, including those listed in this subpart, applicable to reservation lands administered by the National Park Service, rights-of-way over or through such lands will be issued by the Director of the National Park Service, or his delegate, under the regulations of this subpart.

§ 2801.1-8 Oregon and California Railroad and Coos Bay Wagon Road grant lands.

(a) All applications for rights-of-way for the construction and operation of any project over Oregon and California Railroad lands, title to which was revested in the United States by the act of June 9, 1916 (39 Stat. 218), and reconveyed Coos Bay Wagon Road lands, act of February 26, 1919 (40 Stat. 1179), must also be accompanied by a statement showing the amount of merchantable timber, if any, to be cut, removed, or destroyed in the construction of the project works, and agreeing to deposit with the Bureau, in advance of construction, such sum of money as may be determined to be the full stumpage value of the timber to be so cut, removed, or destroyed, and an affirmative showing that favorable action on the application will not adversely affect or impair watershed protection, streamflow regulation, and other conservation features enumerated in the act of August 28, 1937 (50 Stat. 874).

(b) The general right-of-way statutes were extended to these lands by sec. 2 of the act of June 9, 1916 (39 Stat. 218), and sec. 3 of the act of February 26, 1919 (40 Stat. 1179).

§ 2801.1-9 Areas administered by Fish and Wildlife Service.

Pursuant to any statute, including those listed in this subpart, applicable to reservation lands administered by the Fish and Wildlife Service, rights-of-way

over or through such lands will be issued by the Director of the Bureau of Sport Fisheries and Wildlife, or his delegate, under the regulations in 50 CFR Part 29. [35 F.R. 9634, June 13, 1970; 35 F.R. 10660, July 1, 1970]

Subpart 2802-Procedures

SOURCE: The provisions of this Subpart 2802 appear at 35 F.R. 9635, June 13, 1970, unless otherwise noted.

§ 2802.1 Application.

§ 2802.1-1 Form.

(a) Application. (1) The application shall be prepared and submitted in accordance with the requirements of this section. It should be in typewritten form or legible handwriting. It must specify that it is made pursuant to the regulations in this part and that the applicant agrees that the right-of-way if approved, will be subject to the terms and conditions of the applicable regulations contained in this part. It should also cite the act to be invoked and state the primary purpose for which the right-of-way is to be used. Applications shall be filed in accordance with the provisions of § 1821.2 of this chapter, except that applications for rights-of-way over or through reservation lands administered by the National Park Service shall be filed with the Director of the National Park Service, Washington, D.C. 20240, and applications for rights-of-way over and through reservation lands administered by the Fish and Wildlife Service shall be filed with the appropriate Regional Director of the Bureau of Sport Fisheries and Wildlife in accordance with 50 CFR 29.21-2. If the right-of-way has been utilized without authority prior to the time the application is made, the application Lust state the date such utilization commenced and by whom, and the date the applicant alleges he obtained control of the improvements. [35 F.R. 9635, June 13, 1970; 35 F.R. 10660, July 1, 1970]

§ 2802.1-2 Service fees.

All applications filed pursuant to this part in the name of individuals, corporations or associations must be accompanied by an application service fee of $10 except where the right of way will authorize use and occupancy of the lands exclusively for the purposes stated in § 2802.1-6(c). The service fee will not be returnable. No application service fee will be required of States or

(c) When a corporation is operating in a State other than that in which it was incorporated, it must submit a certificate of the Secretary of State or other proper official of the State that it has complied with the laws of that State governing foreign corporations to the extent required to entitle the company to operate in such State.

(d) A copy of the resolution or bylaws of the corporation authorizing the filing of the application must also be filed.

(e) If the corporation shall have previously filed with the Bureau the papers required by this section, the requirements shall be held to be met if, in making subsequent applications, specific reference is made to such previous filing by date, place, and case number. § 2802.1-4 Showing as to citizenship required.

(a) Individuals. An individual applicant applying for a right-of-way under any right-of-way act, except the act of March 3, 1891 (26 Stat. 1101; 43 U.S.C. 946 et seq.), and the act of January 13, 1897 (29 Stat. 484; 43 U.S.C. 952-955), as amended, must state whether he is native born or naturalized, and, if naturalized, the date of naturalization, the court in which naturalized, and the number of the certificate, if known. If citizenship is claimed by virtue of naturalization of the father, evidence of his naturalization, and that the applicant resided in the United States thereafter while a minor, should be furnished. Where the husband and the wife are native born and a statement to that effect is made, additional information as to the marital status is not required. In other cases, a married woman or widow must show the date of her marriage; a widow must show, in addition, the date of the death of her husband.