                                            Filed:   November 29, 2001

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 01-1163
                            (CA-97-70-2)



United States of America,

                                                Plaintiff - Appellee,

          versus


Tommy A. Srnsky, et al.,

                                             Defendants - Appellants.



                             O R D E R



     The court further amends its opinion filed November 14 and

amended November 20, 2001, as follows:

     On page 9, second indented quotation, line 6 -- the two

section symbols added in the earlier amending order are deleted.

     On page 12, third full paragraph, line 2 -- the words “Organic

Act, FLPMA, and ANILCA” are corrected to read “Organic Act, FLPMA,

or ANILCA.”

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
                                             Filed:   November 20, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 01-1163
                             (CA-97-70-2)



United States of America,

                                                 Plaintiff - Appellee,

           versus


Tommy A. Srnsky, et al.,

                                              Defendants - Appellants.



                              O R D E R



     The court amends its opinion filed November 14, 2001, as

follows:

     On page 9, second indented quotation, line 6 -- two section

symbols are added before “1701-82.”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 01-1163
TOMMY A. SRNSKY; DAVID M.
SRNSKY,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CA-97-70-2)

Argued: September 26, 2001

Decided: November 14, 2001

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Williams and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Roger J. Marzulla, MARZULLA & MARZULLA, Wash-
ington, D.C., for Appellants. David Jack Lazerwitz, Environment &
Natural Resources Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nancie G.
Marzulla, MARZULLA & MARZULLA, Washington, D.C., for
Appellants. John C. Cruden, Acting Assistant Attorney General, Sean
H. Donahue, Environment & Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Patrick
M. Flatley, United States Attorney, Wheeling, West Virginia; James
B. Snow, Office of General Counsel, UNITED STATES DEPART-
MENT OF AGRICULTURE, Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Tommy and David Srnsky appeal a district court order requiring
them to apply for a Forest Service special use permit in order to use
a 2.6-mile road through the Monongahela National Forest, which pro-
vides the sole access to their home. The district court held that the
Srnskys have neither an express nor an implied easement to use the
road. In reaching that conclusion, however, the district court failed to
consider whether West Virginia common law implied a reservation of
such an easement from the facts of the conveyance by which the
United States took title to the surrounding land. For this reason, and
because we conclude that, contrary to the government's arguments,
federal law does not preempt such implied reservations, we vacate the
district court's judgment and remand for further proceedings.

I.

In 1935, the Wilmoth family conveyed approximately 742.5 acres
of land to the United States, expressly reserving to itself a 6.8-acre
interior tract (the "inholding"). J.A. 195. The deed does not expressly
reserve a right of access over what has become a national forest. The
parties disagree on whether the Forest Service road, which today
serves as the sole means of ingress and egress to the inholding,
existed at the time of the conveyance. Compare J.A. 182-85 (declara-
tions of Don Phares and David Srnsky), with Appellee's Br. at 15 n.5
(claiming appellants' expert acknowledges the road was built in 1962,
J.A. 92).

By 1996, the Srnskys (the current owners of the inholding) com-
pleted construction of a home on the inholding. Apparently concerned

                  2
with the Srnskys' use of the road and the effects such use may have
on the surrounding forest and on the buffalo clover, an endangered
plant species, the Forest Service demanded that the Srnskys apply for
a special use permit in order to continue using the road. When the
Srnskys failed to comply with this demand, the Forest Service filed
a complaint in district court, seeking to compel the Srnskys to apply
for the permit. The government subsequently moved for and was
granted summary judgment. J.A. 201-07. The district court rejected
the Srnskys' claim that they have an implied easement but, in doing
so, addressed only prescriptive easements and easements by necessity.

II.

Pivotal to this case is the sometimes elusive distinction between
implied easements by way of necessity and implied easements from
prior use (sometimes referred to as easements by implication). At
times, courts loosely refer to both as implied reservations or implied
easements. Here the distinction proves critical, because easements by
implication, in contrast to easements by way of necessity, are not "ex-
tinguished merely because the reasonable necessity ceases to exist."
Norken Corp. v. McGahan, 823 P.2d 622, 631 (Alaska 1991). For
easements by implication, necessity must be established only at the
time of conveyance.

Although West Virginia courts have sometimes used inconsistent
terminology, see, e.g., Canei v. Culley, 374 S.E.2d 523, 524 (W. Va.
1988) ("A way of necessity is an easement founded on an implied
grant or implied reservation.") (citation omitted), by focusing on the
elements needed to establish each type of easement, we conclude that
West Virginia recognizes both doctrines. In Berkeley Dev. Corp. v.
Hutlzer, 229 S.E.2d 732 (W. Va. 1976), the court discussed easements
by necessity. The court emphasized the necessity requirement and
stated that once created, such an easement "cannot be extinguished so
long as the necessity continues to exist." Id. at 851 (emphasis added).

In Stuart v. Lake Washington Realty Corp., 92 S.E.2d 891 (W. Va.
1956), the court dealt with easements by implication. The court
described the three elements required for the creation of such ease-
ments: separation of title; "necessity that, before the separation takes
place, the use which gives rise to the easement shall have been so

                  3
long continued and obvious or manifest as to show that it was meant
to be permanent"; and "necessity that the easement be essential to the
beneficial enjoyment of the land granted or retained." Id. at 898-99
(quoting 17 Am. Jur., Easements, § 34); see Miller v. Skaggs, 91 S.E.
536, 537-38 (W. Va. 1917); see also 7 Thompson, Real Property
§ 60.03(b)(4)(i), at 426 (1994). The court stressed that "there is no
implied reservation of an easement . . . unless the burden upon the
land conveyed is apparent, continuous and necessary for the enjoy-
ment of the land retained." Stuart, 92 S.E.2d at 898 (emphasis added).

Unlike easements by necessity, these rights by implication "could
be lost only by adverse possession by the owner of the servient land."
Id. at 901 (quoting Bennett v. Booth, 73 S.E. 909, 910 (W. Va. 1912)).
That is, continuing necessity is not required. See also Bennett, 73 S.E.
at 909 (holding that such easements pass "with the dominant estate,
as appurtenant thereto").

The Supreme Court of Appeals of West Virginia recently con-
firmed the continuing vitality of easements by implication. See Rob-
ertson v. B A Mullican Lumber & Mfg. Co., 537 S.E.2d 317 (W. Va.
2000). "The general rule is that there is no implied reservation of an
easement . . . unless the burden upon the land conveyed is apparent,
continuous, and necessary for the enjoyment of the land." Id. at 319
(quoting Myers v. Stickley, 375 S.E.2d 595 (1988)). Because ease-
ments by necessity do not require an apparent or continuous burden,
the court could have referred only to an easement by implication.1 1

The Srnskys view their claim as a textbook example of an ease-
ment by implication. They contend that the Forest Service road is the
same road that the Wilmoths had always used to access what became
the inholding. They claim that the Wilmoths' use of the road was
open, apparent, and necessary before the conveyance. The district
court determined, however, that the Srnskys could not demonstrate
necessity at the time of the conveyance, because 16 U.S.C. § 478, part
_________________________________________________________________

1 Other jurisdictions also recognize a distinction between easements by
necessity and easements by implication. See, e.g., Davis v. Peacock, 991
P.2d 362, 367-68 (Idaho 1999); Griffith v. Eid, 573 N.W.2d 829, 831,
833-34 (N.D. 1998); Norken Corp. v. McGahan, 823 P.2d 622, 631
(Alaska 1991).

                   4
of the National Forest Service Organic Act of 1897 ( "Organic Act"),
16 U.S.C. §§ 473-82, 551, provided the Wilmoths a federal right of
access. The plain language of the Organic Act, however, forecloses
this conclusion.

Section 478 states:

        Nothing [in the Organic Act] shall be construed as prohibit-
        ing the egress or ingress of actual settlers residing within
        the boundaries of national forests, or from crossing the same
        to and from their property or homes; and such wagon roads
        and other improvements may be constructed thereon as may
        be necessary to reach their homes and to utilize their prop-
        erty under such rules and regulations as may be prescribed
        . . ..

16 U.S.C. § 478 (emphasis added). First, the statute does not appear
to create rights of ingress or egress at all. Second, "actual settlers" has
a well-established technical definition. See, e.g., United States v. New
Orleans Pac. Ry. Co., 248 U.S. 507, 516 (1918) (describing an actual
settler as someone who "had the qualifications named in the home-
stead law, was expecting to acquire the title under that law, [and] had
placed on the land a habitable dwelling in which he and his family
were living") (emphasis added). The Wilmoths, far from being "actual
settlers," sold the surrounding land to the government.

Finally, with limited exceptions,2 2 the Organic Act applies only to
forests reserved from public land. As enacted, section 478 referred
not to national forests but to "such reservations[from public land]."
30 Stat. 36 (1897). See also 16 U.S.C. § 475 (discussing "[a]ll public
lands designated and reserved" under the Act). The United States pur-
chased this land directly from a private party (the Wilmoths) under
the Weeks Act, 36 Stat. 961 (1911), codified at 16 U.S.C. §§ 480,
500, 513-19, 521, 552, 563. J.A. 57-58. At the time of conveyance,
_________________________________________________________________

2 Section 480, which provides for state jurisdiction over persons within
national forests, and section 551, a general grant of regulatory authority
to the Secretary of Agriculture, apply to the land in question. Neither sec-
tion has anything to do with this case, but because this is not completely
obvious for section 551, we discuss it below.

                  5
the land surrounding the inholding was not public land. The Organic
Act, we believe, simply has nothing to do with this case. See also 42
U.S. Op. Atty. Gen. 127, 127 n.1 (1962) (concluding that the Organic
Act does not apply to land acquired under the Weeks Act).

The district court therefore disposed of the Srnskys' claim too
quickly. Because the Organic Act does not apply, further factual
development is required, unless, of course, federal law preempts
existing easements.

III.

On appeal, the government does not seriously defend the district
court's application of West Virginia law. Rather, it contends that
whatever common law access rights the Srnskys may otherwise pos-
sess, the Organic Act; the Federal Land Policy and Management Act
of 1976 (FLPMA), 43 U.S.C. §§ 1701-1784; and the Alaska National
Interest Lands Conservation Act of 1980 (ANILCA), 16 U.S.C.
§§ 3101-3233, preempt those rights. The government argues that

       [t]he fundamental point that the Srnskys fail to recognize,
       however, is that regardless of whatever state common law
       arguments they could assert to gain access to neighboring
       land, the neighboring land in this case is in a National Forest
       and access across that land is regulated as a matter of federal
       law by Congress pursuant to its authority under the Property
       Clause.

Appellee's Br. at 24. We need not decide, however, the extent of Con-
gress' authority to abridge common law property rights, because we
find that none of the statutes relied on by the government speaks to
the issue.

As discussed above, the Organic Act, with the possible exception
of section 551, does not apply. FLPMA also has no application to
existing common law easements. Section 1761(a), selectively quoted
by the government, authorizes the Secretary "to grant, issue, or renew
rights of way," but does not authorize regulation of existing ease-
ments. Likewise, section 1764(c) states: "Rights-of-way shall be

                  6
granted, issued, or renewed pursuant to this subchapter under . . . reg-
ulations or stipulations . . . ." Nowhere does FLPMA address existing
state law easements. Section 551 and ANILCA present slightly more
complicated issues, and we address them in turn.

A.

Section 551, enacted in 1897 as part of the Organic Act, provides:

        The Secretary of Agriculture shall make provisions for the
        protection against destruction by fire and depredations upon
        the public forests and national forests which may have been
        set aside or which may be hereafter set aside under the pro-
        visions of section 471 of this title, and which may be contin-
        ued; and he may make such rules and regulations and
        establish such service as will insure the objects of such res-
        ervations, namely, to regulate their occupancy and use and
        to preserve the forests thereon from destruction . ...

16 U.S.C. § 551 (emphasis added). Section 471 allowed the President
to reserve public land into the national forest system. And while the
land surrounding the inholding entered the national forest system by
operation of the Weeks Act, part of the Weeks Act, 16 U.S.C. § 521,
arguably requires treating such land as if it had been reserved under
section 471.

But even if we assume that section 551 applies to land acquired
under the Weeks Act and that the general language of section 551
could be read to allow the Secretary to regulate state common law
easements, we conclude that a provision of the Weeks Act, 16 U.S.C.
§ 518, precludes regulation of such easements under section 551. That
section of the Weeks Act states, in relevant part:

        Such rights of way, easements, and reservations retained by
        the owner from whom the United States receives title, shall
        be subject to the rules and regulations prescribed by the Sec-
        retary of Agriculture for their occupation, use, operation,
        protection, and administration, and such rules and regula-
        tions shall be expressed in and made part of the written

                  7
        instrument conveying title to the lands to the United States;
        and the use, occupation, and operation of such rights of way,
        easements, and reservations shall be under, subject to, and
        in obedience with the rules and regulations so expressed.

16 U.S.C. § 518 (emphasis added).

Interestingly, the section does not foreclose implied reservations.
But with unmistakable clarity, it does require that any rules or regula-
tions that the Secretary wishes to apply to easements reserved by the
grantor must be "expressed in and made part of" the instrument of
conveyance. To the extent, if any, that section 551, enacted in 1897,
could be read to allow regulation of such easements, the more recent
and specific statute, section 518, enacted in 1911 and amended in
1913, must prevail. Because no such regulations appear in the deed
by which the United States took title, J.A. 48-51, section 551 does not
apply to this case.

B.

As to ANILCA, there is a threshold question of whether the statute
even applies to any land outside of Alaska. Even if the statute does
apply in West Virginia, however, we find that it does not regulate
common law easements such as the Srnskys claim. Finally, we find
that the regulations promulgated under the statute do not, by their own
terms, purport to regulate such easements.

1.

The government asserts (and the Srnskys tacitly concede) that
ANILCA applies outside of Alaska. The government's entire treat-
ment of this issue is contained within a footnote, which cites Montana
Wilderness Ass'n v. United States Forest Service, 655 F.2d 951 (9th
Cir. 1981). See Appellee's Br. at 7 n.1.

In isolation, subsection 1323(a), on which the government relies,
appears to apply to all national forests (though, it is the only part of
the entire statute that could plausibly apply outside of Alaska). It
states:

                   8
       Notwithstanding any other provision of law, and subject to
       such terms and conditions as the Secretary of Agriculture
       may prescribe, the Secretary shall provide access to non-
       federally owned land within the boundaries of the National
       Forest System as the Secretary deems adequate to secure the
       owner the reasonable use and enjoyment thereof: Provided,
       That such owner comply with the rules and regulations
       applicable to ingress and egress to or from the National For-
       est System.

16 U.S.C. § 3210(a) (emphasis added). This subsection, however,
must be read in pari materia with the next subsection. Subsection
1323(b) provides:

       Notwithstanding any other provision of law, and subject to
       such terms and conditions as the Secretary of the Interior
       may prescribe, the Secretary shall provide such access to
       nonfederally owned land surrounded by public lands man-
       aged by the Secretary under the Federal Land Policy and
       Management Act of 1976 (43 U.S.C. 1701-82) as the Secre-
       tary deems adequate to secure to the owner the reasonable
       use and enjoyment thereof: Provided, That such owner com-
       ply with rules and regulations applicable to access across
       public lands.

16 U.S.C. § 3210(b) (emphasis added). While the statute does not
define the term "National Forest System," it does define "public
lands" as certain public lands "situated in Alaska." 16 U.S.C.
§ 3102(3). This gives rise to a strong presumption that the nearly
identical language in the immediately preceding subsection also
applies only to land in Alaska. See Montana Wilderness, 655 F.2d at
953-55. And although the Ninth Circuit ultimately reached the oppo-
site result, it did so only after consulting post-enactment legislative
history. See id. at 957 (discussing as decisive legislative history for
the Colorado Wilderness Act). But we need not decide the geographic
scope of ANILCA today, however, because, as we discuss below,
even if we accepted the contention that ANILCA applies outside of
Alaska, we would still hold that it does not apply to the Srnskys'
claimed easement.

                  9
2.

Section 1323(a) merely authorizes the Secretary to provide access
to inholders (who may otherwise lack access); it does not purport to
affect existing rights, and it does not mention state law. To say the
very least, the statute lacks a clear statement of intent to preempt state
law. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).

Undeterred, the government argues that under Silkwood v. Kerr-
McGee Corp., 464 U.S. 238, 248 (1984), state law is preempted to the
extent it actually conflicts with federal law. The government attempts
to demonstrate a conflict by asserting that "Congress made clear in
section 1323(a) of ANILCA that inholders shall be provided access
across National Forest System lands, `Provided, That such owner
comply with the rules and regulations applicable to ingress and egress
to or from the National Forest System.'" Appellee's Br. at 31-32.

The only entities required to comply with the Secretary's rules and
regulations, however, are those to whom the Secretary provides
access. See 16 U.S.C. § 3210(a) ("[T]he Secretary shall provide
access to nonfederally owned land . . . to secure the owner the reason-
able use [of his land]: Provided, That such owner comply with the
rules and regulations . . . .") (emphasis added). The government's
interpretation reads "such" out of the statute. Because ANILCA
applies only to those who lack rights of access under state law, we
cannot say that, in this case, "it is impossible to comply with both
state and federal law." Silkwood, 464 U.S. at 248. Nor does it appear
that "state law stands as an obstacle to the accomplishment of the full
purposes and objectives," id., of section 1323 of ANILCA, which
appear to be ensuring access rights to inholders. There is no conflict
between state and federal law, and, therefore, there is no preemption.
See National Home Equity Mortgage Assoc. v. Face, 239 F.3d 633,
637 (4th Cir. 2001).

The government incorrectly believes that United States v. Jenks, 22
F.3d 1513 (10th Cir. 1994) (Jenks I), and Adams v. United States, 3
F.3d 1254 (9th Cir. 1993), support its preemption analysis. Jenks' pre-
decessor in interest took title under the Homestead Act, see Jenks I,
22 F.3d at 1516; that is, he was an actual settler for purposes of the
Organic Act. And while the court claimed to "hold that, regardless of

                  10
[Jenks'] patent or common law rights, he must apply for" a permit,
id. at 1518, the facts do not support such a broad holding. The Tenth
Circuit subsequently clarified its position in United States v. Jenks,
129 F.3d 1348 (10th Cir. 1997) (Jenks II), explaining the common
law rights to which it had referred. Jenks had claimed that the land
patents granted to his predecessor in interest contained certain implied
easements. Id. at 1354. The court found that although a right of access
had passed by implication, that right was not "a property interest
known as an implied easement." Id. The court looked to the Home-
stead Act and found that Congress did not "intend to abrogate its right
to regulate access." Id.3
                        3

The Srnskys' predecessors in interest, by contrast, did not take pur-
suant to a federal statute; rather they deeded part of their land to the
federal government. We have only the deed to look to in determining
the rights of the parties, and, absent federal legislation purporting to
control interpretation of the deed, we are left with state law. See
United States v. Polino, 131 F. Supp. 772, 774 (N.D.W. Va. 1955);
see also North Dakota v. United States, 460 U.S. 300, 317-19 (1983)
(assuming that state law generally governs federal land acquisitions,
unless state law is "aberrant or hostile") (quoting United States v. Lit-
tle Lake Misere Land Co., 412 U.S. 580, 596 (1973) (refusing to
apply discriminatory and retroactive state law, but leaving open the
possibility of applying that law if it served legitimate and important
state interests)).

Moreover, the government's position has no logical stopping point.
Nothing in the government's argument limits itself to implied ease-
ments. The statutory scheme, on the government's view, would wipe
the National Forest System clean of any and all easements, implied
or express. We would be reluctant to read such a result into an ambig-
uous statute. See, e.g., United States v. Security Indus. Bank, 459 U.S.
70, 82 (1982) (declining to construe a statute "`in a manner that could
in turn call upon the Court to resolve difficult and sensitive questions
_________________________________________________________________

3 Adams offers the government no help for essentially the same reason.
Like Jenks, the landowners in that case claimed that "an easement by
implication or necessity was created when the United States granted the
land to their predecessors." 3 F.3d at 1259. The court found that
ANILCA and FLPMA applied to the right in question, preempting it. Id.

                  11
arising out of the guarantees of the' takings clause ") (quoting NLRB
v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979)); cf.
Medtronic, 518 U.S. at 485 (discussing presumption against preemp-
tion). And we decline to read that result into ANILCA.

3.

Even if we were willing to read the statute as the government asks,
the regulations themselves do not apply under the circumstances of
this case. Section 251.110(b) specifically states that "[t]he regulations
of this subpart do not affect . . . the rights reserved in conveyances
to the United States." 36 C.F.R. § 251.110(b) (emphasis added). The
government asks us to read "conveyances" to mean "instruments of
conveyance," thereby arguably excluding rights reserved by implica-
tion. The more natural reading of "conveyances," however, suggests
that it refers to acts, not documents. See Black's Law Dictionary (7th
ed. 1999) (defining conveyance first as the "voluntary transfer of a
right or of property," and fourth as the instrument "by which such a
transfer occurs"). Under this reading, an implied reservation, such as
the Srnskys claim, is a right reserved in a conveyance (though not
expressed in the instrument of conveyance).

Section 251.114(f), which requires that applicants "demonstrate[ ]
a lack of any existing rights or routes of access available by deed or
under State or common law," strengthens our conclusion. 36 C.F.R.
§ 251.114(f) (emphasis added). First, the use of the word "deed" bol-
sters our reading of "conveyances" in section 251.110(b). The Secre-
tary appreciates the distinction between a conveyance and the
instrument of a conveyance. Second, the regulations clearly contem-
plate exemptions for individuals with preexisting access rights.

We therefore conclude that the district court cannot be affirmed on
the grounds that the Organic Act, FLPMA, or ANILCA preempt
whatever common law easement the Srnskys may have.

CONCLUSION

The judgment of the district court is vacated and the case is
remanded for further proceedings consistent with this opinion.

VACATED AND REMANDED

                   12
