The National Park Service Can Deny Motorized Access To Privately Owned Land Within A National Park

In McFarland v. Kempthorne, (— F.3d —, 2008 WL 4426628, C.A.9 (Mont.), Oct. 2, 2008), the United States Court of Appeals considered a challenge to a National Park Service (“NPS”) regulation that denied a property owner motorized access through the park, to property he owned within a national park’s boundaries. The court ruled that because the property owner could not claim a common law easement over federal land, and because the regulation was neither arbitrary nor capricious, the NPS could deny the property owner motorized access through the park to his property.


John McFarland owns a 2.75-acre parcel of land within the boundaries of Glacier National Park (“Park”) in Montana. The NPS bans motorized travel on roads in the park during the winter, but until 1999, it did allow owners of property within the park motorized access to their properties via park roads. In December 1999, the NPS notified McFarland that it had changed its policy, and would no longer allow property owners motorized access once the roads had been closed to the general public for the winter. The NPS cited wildlife protection and enhanced recreational opportunities for the general public as its reasons for the change.

McFarland appealed to the NPS for a special permit for motorized access through the park to his property, and the NPS denied his request. He filed an administrative appeal, which was also denied. McFarland then filed suit in federal district court against NPS, Secretary of the Interior Dirk Kempthorne, and other federal officials, claiming easement rights and that the denial of his permit request was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). The district court granted summary judgment for NPS, and McFarland appealed.


Citing Fitzgerald Living Trust v. United States, 460 F.3d 1266 (9th Cir. 2006), the court stated that an easement exists if at the time a property is severed, an easement is necessary for the owner of the severed parcel to use his property. However, an easement of necessity does not exist if the claimant has another mode of access to his property, no matter how inconvenient, the court added. McFarland retained his right of access to his property through the park, just not by motorized means. Although the park ban on motorized vehicles made his access less convenient, it did not deny him other means of access and therefore no easement by necessity existed, the court concluded.

The APA allows federal courts to set aside agency decisions if it finds them “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” the court said. However, the court found that was not the case when NPS denied McFarland’s request for a special permit. In fact, NPS clearly explained its reasons for closing the road in winter and declining to make an exception for McFarland, and its concerns for wildlife and public recreation in the park justified its decision. Its denial of McFarland’s request was therefore not arbitrary, capricious, nor in violation of the law, the court concluded. Since McFarland was not entitled to an easement, and the NPS decision denying his permit was proper, the district court was correct to grant summary judgment for NPS. The judgment was affirmed.