Defendant Randolph Jenks owns three ranches in Catron County, New Mexico— Centerfire Bog Ranch, Double J. Ranch, and Patruff Ranch. All three ranches are “in-holdings” in that they are encompassed within the Apache National Forest and Gila River Forest Reserve. Consequently, Jenks must cross federal lands to reach each of his three ranches. Jenks may reach Centerfire Bog Ranch by Centerfire Bog Road, as well as by a northеrn access road in good weather. His access to Double J. Ranch and Patruff Ranch, however, is limited via Double J. Road and Patruff Road, respectively.
I.
Problems arose over a decade ago when the government told Defendant that he had to apply for and obtain “special use permits” or “private road easements” granting him access over the Centerfire Bog, Double J., and Patruff Roads, pursuant to the Alaska National Interest Lands Conservations Act of 1980 (ANILCA), 16 U.S.C. §§ 3101-3233. Section 3210(a) of ANILCA provides:
Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System.
16 U.S.C. § 3210(a). Jenks, however, refused to comply with the government’s demands. The government then instituted this lawsuit to (1) quiet title in the three roads, (2) enjoin Defendant’s use of the access roads without proper authorization, and (3) compel Defendant’s compliance with ANILCA. Defendant сounterclaimed to quiet title in himself, alleging preexisting patent and common law rights of access to his ranches via the roads. That was in the spring of 1990.
On cross motions for summary judgment, Fed.R.Civ.P. 56, and the parties’ joint stipulation of facts, the district court held that even assuming Defendant had some preexisting legal right of access over the roads, the government could still impose reasonable rules and regulations upon that acсess pursuant to ANILCA and the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1784.
United States v. Jenks,
The district court reasoned that “Recording to the legislative history of ANILCA, Congress intended that ... [inholders] ‘had the right of access to their lands subject to
*1351
reasonable regulation by the Secretary of Agriculture in the case of national forests under the [FLPMA].’ ”
Jenks,
Rights-of-way shall be granted, issued, or renewed pursuant to this subchapter under such regulations or stipulations, consistent with the provisions of this subehap-ter or any other applicable law, and shall also be subject to the terms and conditions as the Secretary concerned may prescribe regarding extent, duration, survey, location, construction, maintenance, transfer or assignment, and termination.
Id. § 1764(c). Accordingly, the district court entered summary judgment in favor of the government and enjoined Defendant’s use of the access roads without proper authorization. Defendant appealed.
In
United States v. Jenks,
While we agreed with the district court that Defendant must apply for special use permits, we concluded that the court failed to give Defendant’s patent and common law claims proper consideration. In reaching this conclusion, we relied on 36 C.F.R. § 251.114(f)(1), which requires the officer authorizing a special use permit to ensure that the inholder “has demonstrated a lack of any existing rights ... of access available by deed or under State or common law.” Thus, the permit process expressly required a determination of Defendant’s patent and common law rights of access.
Because under § 251.114(f)(1), the government might not legitimately be able to require special use permits if Defendant could demonstrate preexisting rights of access, we also concluded that the district court’s order enjoining Defendant’s use of the roads until he obtained use permits wаs improper. We therefore modified the district court’s injunction and enjoined Defendant’s use of the access roads only until he applied for special use permits as required by 36 C.F.R. § 251.112(a).
Finally, we concluded in
Jenks I
that the district court’s finding that the terms of the special use permits were reasonable was rendered moot by the government’s change of position on appeal. The government’s position before the district court was that thе conditions for issuance of the permits to Defendant were non-negotiable. On appeal, however, the government informed us that the special use permit presented to Defendant “was merely a proposal and was subject to negotiation and that there was no indication that this permit, unamended, was going to be the permit for Defendant.”
Jenks,
Following
Jenks I,
Defendant applied for special use permits over the Centerfire Bog, Double J., and Patruff Roads. The government, however, offered Defendant special use permits only under the terms of its original proposal, thus again changing its position as to the negotiability of the permits’ conditions. The Deputy Regional Forester upheld the government’s position. The parties again filed cross motions for summary judgment in the district court, and the government again prevailed. The district court rejected Defen
*1352
dant’s claim to preexisting patent and common law rights of access to his ranches, again held that the conditions contained in the proposed special use permits were reasonable, and again enjoined Defendant’s use of the access roads. Defendant again appealed. Our jurisdiction arises under 28 U.S.C. § 1291. We review a grant of summary-judgment de novo.
Mesa Oil, Inc. v. Insurance Co. of North America,
II.
Before addressing the merits of Defendant’s appeal, we initially note our agreement with the district court’s statement on remand that “[t]he United States’ flip-flopping of its position relating to the negotiability of the permit terms has resulted in an enormous waste of judicial resources.” United States v. Jenks, No. Civ-90-480, unpublished оrder at 3 (D.N.M., filed Feb. 12, 1996). The government’s waffling caused the district court to rule a second time on a question which we would have resolved in Jenks I absent the government’s misrepresentations. Moreover, the government’s inability to take a firm but fair stand in dealing with Defendant for whatever reason tends only to erode confidence in its decision-making process, and undermine the perceived legitimacy of its ultimate decision.
Seemingly unaffected by the district court’s displeasure or this court’s growing impatience, the government now tells us not only that the district court’s finding that the terms of the special use permits were reasonable is moot, but also that the government’s entire complaint regarding Defendant’s use of the access roads is moot. Thus, the government asks us to (1) again vacate that portion of the district court’s order on remand addressing the reasonableness of the proposed permits’ conditions, (2) dissolve the district court’s injunction prohibiting Defendant’s use of the access roads, and (3) order the government’s complaint dismissed without prejudice. This all comes about because the government granted thirty-year public road easements to Catron County, New Mexico, for use of the three access roads on the same day Defendant filed his notice of apрeal from the district court’s order on remand. Thus, Defendant may for the time being use the three roads to access his ranches free of any conditions or fees whatsoever.
Defendant agrees that the government’s claims are moot, and we are constrained to agree as well. When claims become moot while an appeal is pending through circumstances attributable to one of the parties, in this case the government, it is our duty to determine whether vacatur is appropriate based on the particular circumstances.
McClendon v. City of Albuquerque,
III.
But the controversy does not there end. Both parties agree that Defendant’s *1353 counterclaim against the government remains viable, and we are of a like opinion. Defendant seeks to quiet title to the access roads pursuant to 28 U.S.C. § 2409a(a), which provides in relevant part: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest-” Defendant’s action under § 2409a(a), however, is subject to the twelve year statute of limitations contained in subsection (g):
Any civil action under this section ... shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessors in interest knew or should have known of the claim of the United States.
Id. § 2409a(g). Defendant’s claims of preexisting patent аnd common law rights of access over the roads are ripe for decision under § 2409a(a) because both Defendant and the government plainly claim an interest in those roads. See H.R. 92-1559 (1972), reprinted in 1972 U.S.C.C.A.N. 4547, 4552 (indicating that Congress intended easements to be included in real property rights adjudicated in a quiet title action under § 2409a). If we were to wait until the public road easements to Catron County lapsed or otherwise terminated before addressing Defendant’s claims, those claims might then be time-barred under § 2409a(g). Accordingly, we proceed to the merits of Defendant’s claims.
Defendant claims a right of access over the Centerfire Bog, Double J., and Patruff Roads free from government interference under three theories: (1) easement by necessity, (2) easement by implication, and (3) easement by express grant. The district court rejected each of Defendant’s thrеe theories. The court first ruled that because ANILCA and the FLPMA gave Defendant statutory rights of access over the roads, the “necessity” required to create easements by necessity did not exist. The court next ruled that those same statutory rights of access indicated that the government did not intend to grant Defendant’s predecessors in title easements by implication for use of the access roads. Finally, the court ruled thаt the patents which the government granted to Defendant’s predecessors in title “with the appurtenances thereof’ did not convey access easements over the roads. We consider each of the district court’s three rulings in turn.
A.
Where a landowner conveys to another an inner portion of land and retains the rest, the common law presumes that the grantee has a right to pass over the retained prоperty if such passage is necessary to reach the granted property.
See Leo Sheep Co. v. United States,
Defendant simply does not need an easement by necessity to access his ranches. Presently, the public road easements which the government granted to Catron County in the Centerfire Bog, Double J., and Patruff Roads give Defendant an unconditional right of access to his ranches. If and after those easements lapse or terminаte, Defendant in all likelihood will still have a statutory right of access under ANILCA and FLPMA, or some other federal statutory scheme, albeit *1354 subject to reasonable government regulation. For instance, ANILCA presently states that “[n]otwithsta,nding any other provision of law ... the Secretary shall provide ... access to nonfederally owned land within the boundaries of the National Forest System -” 16 U.S.C. § 3210(a) (emphasis added). If both the public road easements and statutory rights of access cease to exist, however, Defendant might successfully claim easements by necessity See 4 Powell, supra, § 34.07 at 34-76 (better view is that public policy favoring land utilization applies where the original unity of ownership was in the government, as well as where such ownership was in a private individual); but see Rights-of-Way Across Nat’l Forests, 43 Op. Att’y Gen. 243, 255 (1980) (common law doctrine of easement by necessity does not apply to fеderal lands). But we need not now decide that hypothetical and unlikely situation. 3
B.
Defendant also asserts that the land patents the government granted his predecessors in title contained implied easements for use of the access roads. According to Defendant, the language of the Homestead Act of 1862, which granted 160 acres of land to individuals who agreed to live on and make improvements to the land for five years, “supports the conclusion that Congress intended to grant an implied easement for access to lands patented thereunder.” See Act of May 20, 1862, ch. 75, 12 Stat. 392 (codified at 43 U.S.C. §§ 161-284) (repealed 1976). We disagree.
To be sure, throughout our nation’s western expansion, a right of access across government lands was implied if necessary to effectuate the purpose for which an inholding was granted. But it does not follow that thе right of access accompanying the grant of an inholding was necessarily a property interest known as an implied easement. We implicitly rejected such a proposition in
Jenks I
when we stated: “Although the Homestead Act made no provision for access to and from granted land over the retained lands of the United States, it was presumed that ‘an implied license’ to use public lands would provide settlers with unimpeded access to their property.”
Jenks,
Under the Constitution, Congress has the authority and responsibility to manage federal lands. U.S. Const, art. IV, § 3 (“Congress shall have power to ... make all needful Rules and Regulations respecting ... Property belonging to the United States....”). Nothing in the Hоmestead Act of 1862 suggests that Congress intended to abrogate its right to regulate access over roads located on federal lands. Moreover, our conclusion that Congress maintained the right as holder of the servient tenement to impose reasonable rules and regulations upon the use of access roads, as it has done through the enactment of ANILCA and the FLPMA, is consistent with the principle that “[i]n a public grant nothing passes by implication, and unless the grant is explicit with regard to the property conveyed, a construction will be adopted which favors the sovereign.”
Albrecht v. United States,
*1355 C.
Finally, Defendant argues that the patents of his predecessors in title expressly grant him easements in the access roads because they grant “said tract of Land with the appurtenances thereof.” Defendant states the general rule that when land is granted with “appurtenances,” the grantee receives that which is necessary for the use and enjoyment of the land, see Restatement of Property § 453 (1944), and asks what could be more important for the use and enjoyment of land than an easement for access.
Although difficult to discern from the parties’ convoluted joint stipulation of facts, the Patruff Road may have existed at the time Defendant’s predecessors took title to the Patruff Ranch from the government. The Centerfire Bog and Double J. Roads, however, do not appear to have existed, at least in their present form, at the time Defendant’s predecessors took title from the government. We fail to see how Defendant’s predecessors in title received express access easements over roads which did not exist at the time of the government’s conveyance.
Nevertheless, even assuming all three access roads existed at the time of the government’s patents, we do not believe the language “with the appurtenances thereof’ sufficient to grant Defendant and his predecessors in title express easements over the access roads as against the government. We have already noted that unless a public grant exрlicitly conveys property, we will construe the grant in favor of the government.
Albrecht,
Accordingly, the district court’s injunction prohibiting Defendant’s use of the access roads is DISSOLVED. The district court’s judgment is AFFIRMED IN PART and VACATED IN PART. The cause is hereby REMANDED to the district court for further proceedings consistent with this opinion.
Notes
. The history leading to the enactment of ANIL-CA and the FLPMA is set forth in
United States v. Jenks,
. To avoid confusion, we expressly note that our decision in
Jenks I,
. The district court also found that Defеndant did not have an easement by necessity in the Center-fire Bog Road because he could access the Cen-terfire Bog Ranch, albeit with difficulty, via a northern access road with a four-wheel drive vehicle. Because Defendant presently has a right to access the Centerfire Bog Ranch via the Centerfire Bog Road, we need not decide whether absent that right the northern access road might be sufficient to overcome Defendant's claim to an easement by necessity in the Center-fire Bog Road'.