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S1520......................................................by STATE AFFAIRS
RIGHTS-OF-WAY - Amends existing law relating to federally-granted
rights-of-way to provide a procedure for a board of county commissioners to
determine the status and regulation of a federally-granted right-of-way.
03/11 Senate intro - 1st rdg - to printing
03/12 Rpt prt - to St Aff
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE SENATE
SENATE BILL NO. 1520
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO ROADS; AMENDING SECTION 40-107, IDAHO CODE, TO REVISE THE DEFINI-
3 TION OF FEDERAL LAND RIGHTS-OF-WAY AND TO MAKE TECHNICAL CORRECTIONS;
4 AMENDING SECTION 40-117, IDAHO CODE, TO PROVIDE PROPER TERMINOLOGY AND USE
5 OF THE TERM; AMENDING SECTION 40-203, IDAHO CODE, TO PROVIDE PROPER TERMI-
6 NOLOGY, TO PROVIDE FOR RECORDING ACKNOWLEDGMENTS OF FEDERALLY-GRANTED
7 RIGHTS-OF-WAY AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
8 40-203A, IDAHO CODE, TO PROVIDE THAT ANY FEDERALLY-GRANTED RIGHT-OF-WAY IS
9 EXCEPTED FROM THE PROVISIONS OF THIS SECTION UNLESS IT HAS BEEN AFFIRMA-
10 TIVELY RECOGNIZED AND MADE A PART OF A HIGHWAY SYSTEM; AMENDING SECTION
11 40-204A, IDAHO CODE, TO CLARIFY ACCEPTANCE OF THE GRANT BY RECOGNIZING THE
12 ACTIONS OF THE PUBLIC AND PUBLIC OFFICIALS INCLUDING THE COMMON LAW, TO
13 PROVIDE EXCLUSIVE JURISDICTION OF THE COUNTY WITH REGARD TO FEDERALLY-
14 GRANTED RIGHTS-OF-WAY AND TO REQUIRE THE PARTICIPATION OF AFFECTED LOCAL
15 HIGHWAY JURISDICTIONS IN A DETERMINATION PROCEEDING OF A CLAIMED
16 FEDERALLY-GRANTED RIGHT-OF-WAY, TO CLARIFY THE METHOD TO RELINQUISH SUCH
17 RIGHTS-OF-WAY AND TO PROVIDE THE EFFECT OF SUCH RELINQUISHMENT, TO PROVIDE
18 A PROCEDURE BY WHICH A BOARD OF COUNTY COMMISSIONERS SHALL DETERMINE AND
19 REGULATE A FEDERALLY-GRANTED RIGHT-OF-WAY, TO PROVIDE FOR JUDICIAL REVIEW
20 OF A DETERMINATION BY A BOARD OF COUNTY COMMISSIONERS, TO PROVIDE FOR MAN-
21 AGEMENT OF A FEDERALLY-GRANTED RIGHT-OF-WAY ON STATE ENDOWMENT LANDS, TO
22 DELETE REDUNDANT LANGUAGE, TO CLARIFY THAT FEDERAL OWNERSHIP OF THE SUR-
23 FACE ESTATE OF PROPERTY OVER WHICH A RIGHT-OF-WAY PASSES IS NOT AFFECTED
24 BY THE RIGHT-OF-WAY, TO PRECLUDE RETROACTIVE APPLICATION AND TO MAKE TECH-
25 NICAL CORRECTIONS; AMENDING SECTION 40-208, IDAHO CODE, TO PROVIDE THAT
26 THE DECISION OF A BOARD OF COUNTY COMMISSIONERS REGARDING THE DETERMINA-
27 TION OF A FEDERALLY-GRANTED RIGHT-OF-WAY PURSUANT TO SECTION 40-204A,
28 IDAHO CODE, IS SUBJECT TO JUDICIAL REVIEW AS PROVIDED THEREIN, TO REVISE
29 PROVISIONS RELATING TO JUDICIAL REVIEW AND TO MAKE TECHNICAL CORRECTIONS;
30 AND DECLARING AN EMERGENCY.
31 Be It Enacted by the Legislature of the State of Idaho:
32 SECTION 1. That Section 40-107, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 40-107. DEFINITIONS -- F. (1) "Facilities" means tracks, pipes, mains,
35 conduits, cables, wires, towers, poles, equipment and appliances.
36 (2) "Family" means two (2) or more persons living together in the same
37 dwelling unit who are related to each other by blood, marriage, adoption or
38 legal guardianship.
39 (3) "Farm operation" means any activity conducted primarily for the pro-
40 duction of agricultural products or commodities, including timber, for sale
41 and home use, and producing agricultural products or commodities in sufficient
42 quantity to contribute materially to the operator's support.
43 (4) "Feeder highway" means any highway which, in the opinion of the
2
1 transportation board, is needed to create or facilitate access to a turnpike
2 project upon which a toll is charged for transit.
3 (5) "Federally-granted land rights-of-way" means rights-of-way on fed-
4 eral land within the context of Revised Statute 2477, codified as 43 United
5 States Code 932, and other federal access grants and shall be considered to
6 be any road, trail, access or way upon which construction has been carried out
7 to the standard in which public rights-of-way were built within historic con-
8 text. These rights-of-way may include, but not be limited to, horse paths,
9 cattle trails, irrigation canals, waterways, ditches, pipelines or other means
10 of water transmission and their attendant access for maintenance, wagon roads,
11 jeep trails, logging roads, homestead roads, mine to market roads and all
12 other ways.
13 SECTION 2. That Section 40-117, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 40-117. DEFINITIONS -- P. (1) "Person" includes every natural person,
16 firm, fiduciary, copartnership, association, corporation, trustee, receiver or
17 assignee for the benefit of creditors.
18 (2) "Place." (See "Maintain," section 40-114, Idaho Code)
19 (3) "Primary system" or "primary highway" means any portion of the high-
20 ways of the state, as officially designated, or as may hereafter be so desig-
21 nated, by the Idaho transportation board, and approved by the secretary of
22 transportation, pursuant to the provisions of title 23, U.S. Code, "Highways."
23 (4) "Public highway agency" means the state transportation department,
24 any city, county, highway district or other political subdivision of the state
25 with jurisdiction over public highway systems and public rights-of-way.
26 (5) "Public highways" means all highways open to public use in the state,
27 whether maintained by the state or by any county, highway district, city, or
28 other political subdivision. (Also see "Highways," section 40-109, Idaho Code)
29 (6) "Public right-of-way" means a right-of-way open to the public and
30 under the jurisdiction of a public highway agency, where the public highway
31 agency has no obligation to construct or maintain, but may expend funds for
32 the maintenance of, said public right-of-way or post traffic signs for vehicu-
33 lar traffic on said public right-of-way. In addition, a public right-of-way
34 includes a right-of-way which was originally intended for development as a
35 highway and was accepted on behalf of the public by deed of purchase, fee sim-
36 ple title, authorized easement, eminent domain, by plat, prescriptive use, or
37 abandonment of a highway pursuant to section 40-203, Idaho Code, but shall not
38 include federally-granted land rights-of-way, as provided in section 40-204A,
39 Idaho Code, that resulted from the creation of a facility for the transmission
40 of water. Public rights-of-way shall not be considered improved highways for
41 the apportionment of funds from the highway distribution account.
42 (7) "Public transportation services" means, but is not limited to, fixed
43 transit routes, scheduled or unscheduled transit services provided by motor
44 vehicle, bus, rail, van, aerial tramway and other modes of public conveyance;
45 paratransit service for the elderly and disabled; shuttle and commuter service
46 between cities, counties, health care facilities, employment centers, educa-
47 tional institutions or park-and-ride locations; subscription van and car pool-
48 ing services; transportation services unique to social service programs; and
49 the management and administration thereof.
50 SECTION 3. That Section 40-203, Idaho Code, be, and the same is hereby
51 amended to read as follows:
3
1 40-203. ABANDONMENT AND VACATION OF COUNTY AND HIGHWAY DISTRICT SYSTEM
2 HIGHWAYS OR PUBLIC RIGHTS-OF-WAY. (1) A board of county or highway district
3 commissioners, whichever shall have jurisdiction of the highway system, shall
4 use the following procedure to abandon and vacate any highway or public right-
5 of-way in the county or highway district system including those which furnish
6 public access to state and federal public lands and waters:
7 (a) The commissioners may by resolution declare its intention to abandon
8 and vacate any highway or public right-of-way considered no longer to be
9 in the public interest.
10 (b) Any resident, or property holder, within a county or highway district
11 system including the state of Idaho, any of its subdivisions, or any
12 agency of the federal government may petition the respective commissioners
13 for abandonment and vacation of any highway or public right-of-way within
14 their highway system. The petitioner shall pay a reasonable fee as deter-
15 mined by the commissioners to cover the cost of the proceedings.
16 (c) The commissioners shall establish a hearing date or dates on the pro-
17 posed abandonment and vacation.
18 (d) The commissioners shall prepare a public notice stating their inten-
19 tion to hold a public hearing to consider the proposed abandonment and
20 vacation of a highway or public right-of-way which shall be made available
21 to the public not later than thirty (30) days prior to any hearing and
22 mailed to any person requesting a copy not more than three (3) working
23 days after any such request.
24 (e) At least thirty (30) days prior to any hearing scheduled by the com-
25 missioners to consider abandonment and vacation of any highway or public
26 right-of-way, the commissioners shall mail notice by United States mail to
27 known owners and operators of an underground facility, as defined in sec-
28 tion 55-2202, Idaho Code, that lies within the highway or public right-of-
29 way.
30 (f) At least thirty (30) days prior to any hearing scheduled by the com-
31 missioners to consider abandonment and vacation of any highway or public
32 right-of-way, the commissioners shall mail notice to owners of record of
33 land abutting the portion of the highway or public right-of-way proposed
34 to be abandoned and vacated at their addresses as shown on the county
35 assessor's tax rolls and shall publish notice of the hearing at least two
36 (2) times if in a weekly newspaper or three (3) times if in a daily news-
37 paper, the last notice to be published at least five (5) days and not more
38 than twenty-one (21) days before the hearing.
39 (g) At the hearing, the commissioners shall accept all information relat-
40 ing to the proceedings. Any person, including the state of Idaho or any
41 of its subdivisions, or any agency of the federal government, may appear
42 and give testimony for or against abandonment.
43 (h) After completion of the proceedings and consideration of all related
44 information, the commissioners shall decide whether the abandonment and
45 vacation of the highway or public right-of-way is in the public interest
46 of the highway jurisdiction affected by the abandonment or vacation. The
47 decision whether or not to abandon and vacate the highway or public right-
48 of-way shall be written and shall be supported by findings of fact and
49 conclusions of law.
50 (i) If the commissioners determine that a highway or public right-of-way
51 parcel to be abandoned and vacated in accordance with the provisions of
52 this section has a fair market value of twenty- two thousand five hundred
53 dollars ($2,500) or more, a charge may be imposed upon the acquiring
54 entity, not in excess of the fair market value of the parcel, as a condi-
55 tion of the abandonment and vacation; provided, however, no such charge
4
1 shall be imposed on the landowner who originally dedicated such parcel to
2 the public for use as a highway or public right-of-way; and provided fur-
3 ther, that if the highway or public right-of-way was originally a
4 federally-granted land right-of-way, said highway or public right-of-way
5 shall revert to a federally-granted land right-of-way.
6 (j) The commissioners shall cause any order or resolution to be recorded
7 in the county records and the official map of the highway system to be
8 amended as affected by the abandonment and vacation. The county recorder
9 shall record acknowledgments including any supporting documentation, and
10 enter a federally-granted right-of-way in the index as provided in section
11 40-204A, Idaho Code.
12 (k) From any such decision, a resident or property holder within the
13 county or highway district system, including the state of Idaho or any of
14 its subdivisions or any agency of the federal government, may appeal to
15 the district court of the county in which the highway or public right-of-
16 way is located pursuant to section 40-208, Idaho Code.
17 (2) No highway or public right-of-way or parts thereof shall be abandoned
18 and vacated so as to leave any real property adjoining the highway or public
19 right-of-way without access to an established highway or public right-of-way.
20 (3) In the event of abandonment and vacation, rights-of-way or easements
21 may be reserved for the continued use of existing sewer, gas, water, or simi-
22 lar pipelines and appurtenances, or other underground facilities as defined in
23 section 55-2202, Idaho Code, for ditches or canals and appurtenances, and for
24 electric, telephone and similar lines and appurtenances.
25 (4) A highway abandoned and vacated under the provisions of this section
26 may be reclassified as a public right-of-way.
27 (5) Until abandonment is authorized by the commissioners, public use of
28 the highway or public right-of-way may not be restricted or impeded by
29 encroachment or installation of any obstruction restricting public use, or by
30 the installation of signs or notices that might tend to restrict or prohibit
31 public use. Any person violating the provisions of this subsection shall be
32 guilty of a misdemeanor.
33 (6) When a county or highway district desires the abandonment or vacation
34 of any highway, public street or public right-of-way which was accepted as
35 part of a platted subdivision said abandonment or vacation shall be accom-
36 plished pursuant to the provisions of chapter 13, title 50, Idaho Code.
37 SECTION 4. That Section 40-203A, Idaho Code, be, and the same is hereby
38 amended to read as follows:
39 40-203A. VALIDATION OF COUNTY OR HIGHWAY DISTRICT SYSTEM HIGHWAY OR PUB-
40 LIC RIGHT-OF-WAY. (1) Any resident or property holder within a county or high-
41 way district system, including the state of Idaho or any of its subdivisions,
42 or any agency of the federal government, may petition the board of county or
43 highway district commissioners, whichever shall have jurisdiction of the high-
44 way system, to initiate public proceedings to validate a highway or public
45 right-of-way, including those which furnish public access to state and federal
46 public lands and waters, provided that the petitioner shall pay a reasonable
47 fee as determined by the commissioners to cover the cost of the proceedings,
48 or the commissioners may initiate validation proceedings on their own resolu-
49 tion, if any of the following conditions exist:
50 (a) If, through omission or defect, doubt exists as to the legal estab-
51 lishment or evidence of establishment of a highway or public right-of-way;
52 (b) If the location of the highway or public right-of-way cannot be accu-
53 rately determined due to numerous alterations of the highway or public
5
1 right-of-way, a defective survey of the highway, public right-of-way or
2 adjacent property, or loss or destruction of the original survey of the
3 highways or public rights-of-way; or
4 (c) If the highway or public right-of-way as traveled and used does not
5 generally conform to the location of a highway or public right-of-way
6 described on the official highway system map or in the public records.
7 (2) If proceedings for validation of a highway or public right-of-way are
8 initiated, the commissioners shall follow the procedure set forth in section
9 40-203, Idaho Code, and shall:
10 (a) If the commissioners determine it is necessary, cause the highway or
11 public right-of-way to be surveyed;
12 (b) Cause a report to be prepared, including consideration of any survey
13 and any other information required by the commissioners;
14 (c) Establish a hearing date on the proceedings for validation;
15 (d) Cause notice of the proceedings to be provided in the same manner as
16 for abandonment and vacation proceedings; and
17 (e) At the hearing, the commissioners shall consider all information
18 relating to the proceedings and shall accept testimony from persons having
19 an interest in the proposed validation.
20 (3) Upon completion of the proceedings, the commissioners shall determine
21 whether validation of the highway or public right-of-way is in the public
22 interest and shall enter an order validating the highway or public right-of-
23 way as public or declaring it not to be public.
24 (4) From any such decision, any resident or property holder within a
25 county or highway district system, including the state of Idaho or any of its
26 subdivisions, or any agency of the federal government, may appeal to the dis-
27 trict court of the county in which the highway or public right-of-way is
28 located pursuant to section 40-208, Idaho Code.
29 (5) When a board of commissioners validates a highway or public right-of-
30 way, it shall cause the order validating the highway or public right-of-way,
31 and if surveyed, cause the survey to be recorded in the county records and
32 shall amend the official highway system map of the respective county or high-
33 way district.
34 (6) The commissioners shall proceed to determine and provide just compen-
35 sation for the removal of any structure that, prior to creation of the highway
36 or public right-of-way, encroached upon a highway or public right-of-way that
37 is the subject of a validation proceeding, or if such is not practical, the
38 commissioners may acquire property to alter the highway or public right-of-way
39 being validated.
40 (7) This section does not apply to the validation of any highway, public
41 street or public right-of-way which is to be accepted as part of a platted
42 subdivision pursuant to chapter 13, title 50, Idaho Code, nor does it apply to
43 any federally-granted right-of-way unless it has been affirmatively recognized
44 and made a part of the highway system.
45 SECTION 5. That Section 40-204A, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 40-204A. FEDERALLY-GRANTED LAND RIGHTS-OF-WAY. (1) Acceptance of the
48 grant. The state recognizes that the act of construction and first use and
49 actions of members of the public, or public officials, or both, which are con-
50 sistent with laws or decisions of the courts of the state of Idaho constitute
51 the acceptance of the grant given to the public for federal land rights-of-
52 way, and that once acceptance of the grant has been established, the grant
53 shall be for the perpetual term granted by the congress of the United States.
6
1 (2) Exclusive jurisdiction of county commissioners. Federally-granted
2 rights-of-way whether or not formally acknowledged and indexed as provided in
3 subsection (10) of this section, fall under the exclusive jurisdiction of the
4 county in which they are located, irrespective of any highway district serving
5 the area, unless prior to the effective date of this act, they have been
6 affirmatively recognized and made a part of a highway system. The board of
7 county commissioners shall call upon the highway district commissioners in the
8 county where a federally-granted right-of-way has been claimed, to participate
9 in a determination proceeding, and further, may require the involvement of the
10 commissioners as necessary in any subsequent management of a federally-granted
11 right-of-way determined to exist within the jurisdiction of one (1) or more
12 highway districts in the county.
13 (3) Relinquishment of right. The only method for the abandonment of to
14 relinquish these rights-of-way shall be that of eminent domain proceedings in
15 which the taking of the public's right to access shall be justly compensated.
16 Neither the mere passage of time nor the frequency of use shall be considered
17 a justification for considering these rights-of-way to have been abandoned the
18 procedure as provided in this section. Once relinquished, there shall be no
19 cause for any subsequent action on or revival of the right-of-way by virtue of
20 this section.
21 (34) Procedure by county commissioners to determine status and regula-
22 tion.
23 (a) Any member of the public, the state of Idaho and any of its political
24 subdivisions, any agency of the federal government, or the board of county
25 commissioners itself may initiate proceedings to determine the status and
26 regulation of any right-of-way, or group of rights-of-way, including parts
27 thereof, within the county, claimed to be a federally-granted right-of-way
28 by requesting the board to make a determination. No board of county com-
29 missioners shall be authorized to charge a fee to the requesting party for
30 the conduct of a public hearing; provided however, a fee may be charged if
31 the board discovers the request for a determination was frivolous. Any
32 party who requests a determination by the board shall provide all informa-
33 tion available to the requester in support of the request to the board for
34 its consideration in determining the existence of a federally-granted
35 right-of-way.
36 (b) Upon receipt of a request, the board of county commissioners shall:
37 (i) Establish a hearing date or dates to make a determination
38 regarding the claimed federally-granted right-of-way;
39 (ii) Prepare a public notice stating its intention to hold a public
40 hearing to make said determination which shall be made available to
41 the public not later than thirty (30) days prior to any hearing and
42 mailed to any person requesting a copy not more than three (3) work-
43 ing days after any such request; and
44 (iii) At least thirty (30) days prior to any hearing scheduled by the
45 board, mail notice to owners of record of land abutting the claimed
46 federally-granted right-of-way at their addresses as shown on the
47 county assessor's tax rolls and shall publish notice of the hearing
48 at least two (2) times if in a weekly newspaper or three (3) times if
49 in a daily newspaper, the last notice to be published at least five
50 (5) days and not more than twenty-one (21) days before the hearing.
51 (c) At the hearing, the board shall accept all information relating to
52 the proceedings. Any person, including the state of Idaho or any of its
53 subdivisions, or any agency of the federal government, may appear and give
54 testimony.
55 (d) A transcribable record of the hearing shall be made and maintained by
7
1 the board of county commissioners.
2 (e) All of the said rights-of-way shall be shown by some form of documen-
3 tation established by substantial and competent evidence to have existed
4 been created at a time when the right-of-way crossed federal public land
5 and in any event, prior to the withdrawal of the federal grant in October
6 21, 1976, or to predate the removal of land through which they transit
7 from the public domain for other public purposes. Documentation may take
8 the form of a map, an affidavit, surveys, books or other historic and com-
9 petent information.
10 (f) Within sixty (60) days from receipt of the request which initiated
11 the proceeding, unless for good cause it is shown additional time is nec-
12 essary, the board shall make a determination whether or not the right-of-
13 way is a federally-granted right-of-way. Such determination shall be writ-
14 ten and shall be supported by findings of fact and conclusions of law.
15 (g) If the board of county commissioners determines that a right-of-way
16 is a federally-granted right-of-way, it may, in order to protect community
17 interests and the interests of private property owners affected by the
18 right-of-way, place special conditions or restrictions on public access as
19 appropriate.
20 (h) In order to accommodate both the public and private property owners
21 in the vicinity of a federally-granted right-of-way, the board of county
22 commissioners shall be authorized to relocate portions of the right-of-way
23 within the boundaries of the affected property through agreement with
24 property owners. The relocated federally-granted right-of-way shall retain
25 its status irrespective of any such relocation.
26 (i) If the board determines that a federally-granted right-of-way termi-
27 nates in private land, that segment contained entirely within private land
28 is hereby relinquished and shall be recorded as such in the index main-
29 tained by the county recorder; provided however, that such segment shall
30 not be relinquished if it provides access to publicly-owned recreational
31 areas, facilities or waters.
32 (5) Judicial review of determination by board of county
33 commissioners. The determination of a federally-granted right-of-way is sub-
34 ject to judicial review pursuant to the provisions of section 40-208, Idaho
35 Code. No reviewing court shall be allowed to review the case de novo.
36 (6) Endowment lands. Pursuant to section 8, article IX, of the constitu-
37 tion of the state of Idaho, the state board of land commissioners is given the
38 duty to provide for the location, protection, sale or rental of state endow-
39 ment lands. Any federally-granted right-of-way determined by a board of county
40 commissioners to exist on state endowment lands shall be managed by the state
41 board of land commissioners, subject to the rights declared under the
42 federally-granted right-of-way, but shall not be relinquished nor may its use
43 thereof by the public be prohibited or restricted without a hearing pursuant
44 to this section by the appropriate board of county commissioners. The state
45 board of land commissioners shall call upon the board of county commissioners
46 in the county where the federally-granted right-of-way is situated for advice
47 and recommendations regarding management of the federally-granted right-of-
48 way. Within thirty (30) days of the initiation of a determination proceeding,
49 a board of county commissioners shall give written notice to the state board
50 of land commissioners of any federally-granted right-of-way claimed to cross
51 state endowment lands and shall give the state board of land commissioners the
52 opportunity to participate in any proceedings regarding the determination of a
53 federally-granted right-of-way.
54 (47) No maintenance required. These rights-of-way shall not require main-
55 tenance for the passage of vehicular traffic, nor shall any liability be
8
1 incurred for injury or damage through a failure to maintain the access or to
2 maintain any highway sign. These rights-of-way shall be traveled at the risk
3 of the user and may be maintained by the public through usage by the public.
4 (5) Any member of the public, the state of Idaho and any of its political
5 subdivisions, and any agency of the federal government may choose to seek val-
6 idation of its rights under law to use granted rights-of-way either through a
7 process set forth by the state of Idaho, through processes set forth by any
8 federal agency or by proclamation of user rights granted under the provisions
9 of the original act, Revised Statute 2477.
10 Persons seeking to have a federal land right-of-way, including those which
11 furnish public access to state and federal public lands and waters, validated
12 as a highway or public right-of-way as part of a county or highway official
13 highway system, shall follow the procedure outlined in section 40-203A, Idaho
14 Code.
15 (8) Federal ownership status unchanged. Neither the granting of the orig-
16 inal right-of-way nor any provision in this or any other state act shall be
17 construed as a relinquishment of either federal ownership or management of the
18 surface estate of the property over which the right-of-way passes.
19 (69) Acknowledgments recorded. Persons seeking acknowledgement acknowl-
20 edgment of federally-granted land rights-of-way shall file with the county
21 recorder the request for acknowledgement acknowledgment and for any supporting
22 documentation. The county recorder shall record acknowledgements acknowledg-
23 ments, including supporting documentation, and maintain an appropriate index
24 of same.
25 (10) Nonretroactive clause. Nothing in this section shall apply retroac-
26 tively to permit revival of a federally-granted right-of-way that was lawfully
27 abandoned, nor shall this section form the basis for altering any final deci-
28 sion of any court applying Idaho law, nor shall this section form the basis
29 for altering any pending decision of any court applying Idaho law.
30 SECTION 6. That Section 40-208, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 40-208. JUDICIAL REVIEW. (1) Any resident or property holder within the
33 county or highway district system, including the state of Idaho or any of its
34 subdivisions, or any agency of the federal government, who is aggrieved by a
35 final decision of a board of county or highway district commissioners in an
36 abandonment and vacation or validation proceeding is entitled to judicial
37 review under the provisions of this section. The decision of a board of county
38 commissioners regarding the determination of a federally-granted right-of-way
39 pursuant to section 40-204A, Idaho Code, is subject to judicial review as pro-
40 vided herein.
41 (2) Proceedings for review are instituted by filing a petition in the
42 district court of the county in which the commissioners have jurisdiction over
43 the highway, or federally-granted right-of-way or public right-of-way within
44 twenty-eight (28) days after the filing of the final decision of the commis-
45 sioners or, if a rehearing is requested, within twenty-eight (28) days after
46 the decision thereon.
47 (3) The filing of the petition does not itself stay enforcement of the
48 commissioners' decision. The reviewing court may order a stay upon appropriate
49 terms.
50 (4) Within thirty (30) days after the service of the petition, or within
51 further time allowed by the court, the commissioners shall transmit to the
52 reviewing court the original, or a certified copy, of the entire record of the
53 proceeding under review. By stipulation of all parties to the review proceed-
9
1 ings, the record may be shortened. A party unreasonably refusing to stipulate
2 to limit the record may be ordered by the court to pay for additional costs.
3 The court may require subsequent corrections to the record and may also
4 require or permit additions to the record.
5 (5) If, before the date set for hearing, application is made to the court
6 for leave to present additional information, and it is shown to the satisfac-
7 tion of the court that the additional information is material and that there
8 were good reasons for failure to present it in the proceeding before the com-
9 missioners, the court may order that the additional information shall be pre-
10 sented to the commissioners upon conditions determined by the court. The com-
11 missioners may modify their findings and decisions by reason of the additional
12 information and shall file that information and any modifications, new find-
13 ings, or decisions with the reviewing court.
14 (6) The review shall be conducted by the court without a jury and shall
15 be confined to the record. In cases of alleged irregularities in procedure
16 before the commissioners, not shown in the record, proof thereon may be taken
17 in the court. The court, upon request, shall hear oral argument and receive
18 written briefs.
19 (7) The court shall not substitute its judgment for that of the commis-
20 sioners as to the weight of the information on questions of fact. The court
21 may affirm the decision of the commissioners or remand the case for further
22 proceedings. The court may reverse or modify the decision if substantial
23 rights of the appellant have been prejudiced because the commissioners' find-
24 ings, inferences, conclusions or decisions are:
25 (a) In violation of constitutional or statutory provisions;
26 (b) In excess of the statutory authority of the commissioners;
27 (c) Made upon unlawful procedure;
28 (d) Affected by other error of law;
29 (e) Clearly erroneous in view Unsupported by a preponderance of the reli-
30 able, probative and substantial information on the whole record; or
31 (f) Arbitrary or capricious or characterized by abuse of discretion or
32 clearly unwarranted exercise of discretion.
33 SECTION 7. An emergency existing therefor, which emergency is hereby
34 declared to exist, this act shall be in full force and effect on and after its
35 passage and approval.
STATEMENT OF PURPOSE
RS 12194
The overall purpose of this proposal is to allow continued public
access across public lands and to protect private property rights.
The legislation clarifies procedures for establishing public RS 2477
rights-of-way referencing applicable Idaho statutory or common law.
This legislation also provides a uniform procedure for county hearing
procedures, determination of administrative findings, and judicial
review.
FISCAL IMPACT
There is no fiscal impact to the General Fund.
Contact
Name: Public Rights-of-Way Task Force
Phone: 332-1315
STATEMENT OF PURPOSE/FISCAL NOTE S 1520