2000 Legislation
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SENATE BILL NO. 1434 – Rights-of-way, federal lands

SENATE BILL NO. 1434

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S1434.....................................................by TRANSPORTATION
RIGHTS-OF-WAY - FEDERAL LANDS - Amends existing law to provide a statement
of public policy; to reaffirm statutory road widths; to provide that
acceptance of a grant may be shown by reasonable public use within a
reasonable time given the facts; to provide for vacating or other loss or
substantial discontinuance; to provide a Revised Statute right-of-way may
be a travel corridor; to provide that no liability shall be incurred for
environmental degradation; to provide evidence requirements for proof of
existence of certain routes; to provide application to the real property
law in Idaho; to provide that unauthorized road closings or unauthorized
closure of public highways are against the public interest and public
policy; to authorize a private individual to commence legal actions; to
increase the amount that may be recovered; and to provide additional
penalties.
                                                                        
02/16    Senate intro - 1st rdg - to printing
02/17    Rpt prt - to Transp

Bill Text


 S1434
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1434
                                                                        
                                BY TRANSPORTATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO ROADS; TO PROVIDE LEGISLATIVE  INTENT;  AMENDING  SECTION  40-203,
  3        IDAHO  CODE,  TO  PROVIDE EXCLUSIVE USE REGARDLESS OF WHEN THE ABANDONMENT
  4        OCCURRED AND TO CLARIFY WHEN A COURT MAY DECLARE A ROAD ABANDONED; REPEAL-
  5        ING SECTION 40-204A, IDAHO CODE; AMENDING CHAPTER 2, TITLE 40, IDAHO CODE,
  6        BY THE ADDITION OF A NEW SECTION 40-204A, IDAHO CODE, TO PROVIDE A  STATE-
  7        MENT  OF PUBLIC POLICY THAT THE PUBLIC LANDS REMAIN OPEN TO THE PUBLIC, TO
  8        PROVIDE LEGISLATIVE INTENT, TO PROVIDE THAT THIS SECTION BE  CONSTRUED  IN
  9        ITS  MOST  EXPANSIVE SENSE, TO PROVIDE THAT FEDERAL LANDS RIGHTS-OF-WAY BE
 10        CONSTRUED IN THE MOST FAVORABLE SENSE FOR THE PUBLIC  OR  ITS  REPRESENTA-
 11        TIVES,  TO REAFFIRM COUNCIL BILL NO. 7 OF THE FIRST IDAHO TERRITORIAL LEG-
 12        ISLATURE IN 1864, TO REAFFIRM STATUTORY ROAD WIDTHS OF THE 1881 IDAHO TER-
 13        RITORIAL LEGISLATURE, AND THAT THE WIDTHS ARE A MINIMUM NOT A MAXIMUM,  TO
 14        PROVIDE  THAT  THE  RIGHT-OF-WAY WIDTHS BE AS REASONABLY NEEDED FOR USE OF
 15        THE ROUTE UNLESS CLEARLY AND POSITIVELY SHOWN TO BE OTHERWISE, TO  PROVIDE
 16        THAT THE ROUTES UNDER COUNCIL BILL NO. 7 AND REVISED STATUTE 2477 ARE PART
 17        OF  PREHISTORIC  AND  HISTORIC  TRAVEL CORRIDORS OR LINES OF COMMUNICATION
 18        SINCE MANKIND'S FIRST USE OF THE LAND IN WHAT IS  NOW  IDAHO,  TO  PROVIDE
 19        THAT  COUNCIL  BILL  NO.  7  AND  REVISED STATUTE 2477 ARE TO BE CONSTRUED
 20        TOGETHER AND IN THE EXPANSIVE SENSE, TO PROVIDE CONSTRUCTION,  TO  PROVIDE
 21        PROSCRIPTION,  TO PROVIDE THE ACCEPTANCE OF THE GRANT MAY BE SHOWN BY REA-
 22        SONABLE PUBLIC USE WITHIN A REASONABLE TIME GIVEN THE PARTICULAR FACTS, TO
 23        PROVIDE THAT NO MANDATORY TIME SPAN APPLIES TO THE ACCEPTANCE, ONLY SUFFI-
 24        CIENT PUBLIC USE TO SHOW AN ACCEPTANCE, TO PROVIDE THAT  VACATING  OR  ANY
 25        RESTRICTION, DISCONTINUANCE, OR ANY OTHER LOSS OF PUBLIC USE SHALL ONLY BE
 26        BY EMINENT DOMAIN, TO PROVIDE THAT THE DETERMINATION OF THE EXTENT OF TAK-
 27        ING  OF  ANY PROPERTY, TANGIBLE OR INTANGIBLE, SHALL BE BY THE COUNTY COM-
 28        MISSIONERS, TO PROVIDE THAT ANY TAKING PROCEEDING INCLUDE DAMAGES  TO  THE
 29        COUNTY'S ECONOMIC WELL-BEING AND/OR THE EFFECT ON ITS GROSS DOMESTIC PROD-
 30        UCT,  WHETHER  THE TAKING IS PARTIAL OR TOTAL AND SHALL BE CONSIDERED PART
 31        OF ANY RENT DUE THE COUNTY, TO PROVIDE THAT THE FACTUAL  DETERMINATION  OF
 32        THE  EXTENT OF DAMAGES AND/OR INJURIES BE THE FINAL, EXCLUSIVE AND BINDING
 33        FACTUAL DETERMINATION IN ANY OTHER PROCEEDING WHETHER IN  FACTS,  ADMINIS-
 34        TRATIVE  LAW, EQUITY, OR OTHERWISE, TO PROVIDE THAT THE COUNTY COMMISSION-
 35        ERS SHALL MAKE WRITTEN FINDINGS OF FACT AS A MATTER OF LOCAL LAWS  AND  AS
 36        PART  OF  SUBSTANTIVE REAL PROPERTY LAW, TO AUTHORIZE OTHER DOCUMENTATION,
 37        TO PROVIDE THAT A RIGHT-OF-WAY MAY BE A TRAVEL CORRIDOR, OR LINE OF COMMU-
 38        NICATION AND MAY BE SEVERAL MILES WIDE DEPENDING ON  PREHISTORIC  OR  HIS-
 39        TORIC  USES, TO PROVIDE THAT ANY RENT, OR INTEREST ON UNPAID RENT, OWED TO
 40        THE PUBLIC SHALL ACCRUE FROM THE FIRST DATE OF  REMOVAL,  RESERVATION,  OR
 41        RESTRICTION  ON  USE  FROM  1891  AND  TO  ACCRUE  UNTIL FINAL JUDGMENT IS
 42        ENTERED, TO PROVIDE THAT NO LIABILITY SHALL BE INCURRED FOR PHYSICAL  DEG-
 43        RADATION  OR DAMAGE, TANGIBLE OR INTANGIBLE, THROUGH THE MERE EXISTENCE OF
 44        THE RIGHT-OF-WAY, ROUTE, OR ACCESS, TO PROVIDE FOR VALIDATION  OF  RIGHTS,
 45        TO  PROVIDE FOR A HIGHER STANDARD OF EVIDENCE TO DISPROVE THESE ROUTES, TO
 46        PROVIDE THAT THE RIGHTS-OF-WAY SHALL NOT BE REQUIRED TO POSSESS CENTERLINE
                                                                        
                                           2
                                                                        
  1        SURVEYS, AND TO PROVIDE THAT THIS IS A MATTER OF SUBSTANTIVE AND LOCAL LAW
  2        ALONG WITH THAT THESE RIGHTS-OF-WAY, ROUTES, TRAVEL  CORRIDORS,  LINES  OF
  3        COMMUNICATION,  OR  OTHERWISE ARE INHOLDINGS ON FEDERAL LANDS AND OWNED BY
  4        THE COUNTIES OF IDAHO OR OTHER POLITICAL  SUBDIVISIONS  OR  THE  STATE  OF
  5        IDAHO,  AS  THE SITUATION MAY REQUIRE, ON BEHALF OF THE PUBLIC, TO PROVIDE
  6        FOR FILING OF RECORD ACKNOWLEDGEMENTS AND AN INDEX, TO  PROVIDE  THAT  THE
  7        PROVISIONS  OF THIS ACT ARE PART OF THE SUBSTANTIVE REAL PROPERTY LAWS AND
  8        LOCAL LAWS OF THE STATE OF IDAHO; AMENDING SECTION 40-2319, IDAHO CODE, TO
  9        PROVIDE THAT UNAUTHORIZED ROAD CLOSINGS OR UNAUTHORIZED CLOSURE OF  PUBLIC
 10        HIGHWAYS  ARE  AGAINST  THE PUBLIC INTEREST AND PUBLIC POLICY OF IDAHO, TO
 11        INCREASE THE AMOUNT THAT SHALL BE FORFEITED, TO AUTHORIZE A PRIVATE  INDI-
 12        VIDUAL  TO  COMMENCE  LEGAL  ACTIONS,  TO  INCREASE THE AMOUNT THAT MAY BE
 13        RECOVERED, TO PROVIDE FOR SERVICE BY THE SHERIFF,  TO  PROVIDE  ADDITIONAL
 14        PENALTIES  IF A PRIVATE INDIVIDUAL INSTITUTES THE ACTION AND TO MAKE TECH-
 15        NICAL CORRECTIONS; AND TO PROVIDE SEVERABILITY.
                                                                        
 16    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 17        SECTION 1.  LEGISLATIVE INTENT. The state of Idaho recognizes that  exist-
 18    ing federal land rights-of-way are extremely important to all of Idaho's citi-
 19    zens.  Two-thirds  of  Idaho's land is under control of the federal government
 20    and access to such federal land is integral to public use.  The Legislature of
 21    the State of Idaho recognizes the necessity for establishing a  procedure  for
 22    identifying  and  confirming  the  existence of previously established federal
 23    rights-of-way to protect those rights previously granted to,  and  vested  in,
 24    the citizens of Idaho.
                                                                        
 25        SECTION  2.  That  Section  40-203, Idaho Code, be, and the same is hereby
 26    amended to read as follows:
                                                                        
 27        40-203.  ABANDONMENT AND VACATION OF COUNTY AND  HIGHWAY  DISTRICT  SYSTEM
 28    HIGHWAYS  OR  PUBLIC  RIGHTS-OF-WAY. (1) A board of county or highway district
 29    commissioners, whichever shall have jurisdiction of the highway system,  shall
 30    use  the  following procedure exclusively, in all cases, regardless of when an
 31    abandonment allegedly may have occurred, to abandon and vacate any highway  or
 32    public  right-of-way  in the county or highway district system including those
 33    which furnish public access to state and federal public lands and waters:.  No
 34    court  has  authority  to  declare  any road abandoned, regardless of when the
 35    abandonment may have allegedly occurred, except on a proper appeal of a deter-
 36    mination of abandonment and vacation pursuant to this section.
 37        (a)  The commissioners may by resolution declare its intention to  abandon
 38        and  vacate  any highway or public right-of-way considered no longer to be
 39        in the public interest.
 40        (b)  Any resident, or property holder, within a county or highway district
 41        system including the state of Idaho,  any  of  its  subdivisions,  or  any
 42        agency of the federal government may petition the respective commissioners
 43        for  abandonment and vacation of any highway or public right-of-way within
 44        their highway system. The petitioner shall pay a reasonable fee as  deter-
 45        mined by the commissioners to cover the cost of the proceedings.
 46        (c)  The commissioners shall establish a hearing date or dates on the pro-
 47        posed abandonment and vacation.
 48        (d)  The  commissioners shall prepare a public notice stating their inten-
 49        tion to hold a public hearing to consider  the  proposed  abandonment  and
 50        vacation of a highway or public right-of-way which shall be made available
 51        to  the  public  not  later than thirty (30) days prior to any hearing and
                                                                        
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  1        mailed to any person requesting a copy not more  than  three  (3)  working
  2        days after any such request.
  3        (e)  At  least thirty (30) days prior to any hearing scheduled by the com-
  4        missioner to consider abandonment and vacation of any  highway  or  public
  5        right-of-way, the commissioners shall mail notice by United States mail to
  6        owners  and  operators  of  an underground facility, as defined in section
  7        55-2202, Idaho Code, that lies within the highway or public right-of-way.
  8        (f)  At least thirty (30) days prior to any hearing scheduled by the  com-
  9        missioners  to  consider abandonment and vacation of any highway or public
 10        right-of-way, the commissioners shall mail notice to owners of land  abut-
 11        ting  the  portion  of  the  highway or public right-of-way proposed to be
 12        abandoned and vacated at their addresses as shown on the county assessor's
 13        tax rolls and shall publish notice of the hearing at least two  (2)  times
 14        if  in  a weekly newspaper or three (3) times if in a daily newspaper, the
 15        last notice to be published at least five  (5)  days  and  not  more  than
 16        twenty-one (21) days before the hearing.
 17        (g)  At the hearing, the commissioners shall accept all information relat-
 18        ing  to  the proceedings.  Any person, including the state of Idaho or any
 19        of its subdivisions, or any agency of the federal government,  may  appear
 20        and give testimony for or against abandonment.
 21        (h)  After  completion of the proceedings and consideration of all related
 22        information, the commissioners shall decide whether  the  abandonment  and
 23        vacation  of the highway or public right-of-way is in the public interest.
 24        The decision whether or not to abandon and vacate the  highway  or  public
 25        right-of-way  shall  be written and shall be supported by findings of fact
 26        and conclusions of law.
 27        (i)  If the commissioners determine that a highway or public  right-of-way
 28        parcel  to  be  abandoned and vacated in accordance with the provisions of
 29        this section has a  fair  market  value  of  twenty-five  hundred  dollars
 30        ($2,500)  or  more, a charge may be imposed upon the acquiring entity, not
 31        in excess of the fair market value of the parcel, as a  condition  of  the
 32        abandonment  and  vacation;  provided,  however,  no  such charge shall be
 33        imposed on the landowner who originally dedicated such parcel to the  pub-
 34        lic for use as a highway or public right-of-way.
 35        (j)  The  commissioners shall cause any order or resolution to be recorded
 36        in the county records and the official map of the  highway  system  to  be
 37        amended as affected by the abandonment and vacation.
 38        (k)  From  any  such  decision,  a  resident or property holder within the
 39        county or highway district system, including the state of Idaho or any  of
 40        its  subdivisions  or  any agency of the federal government, may appeal to
 41        the district court of the county in which the highway or public  right-of-
 42        way is located pursuant to section 40-208, Idaho Code.
 43        (2)  No highway or public right-of-way or parts thereof shall be abandoned
 44    and  vacated  so as to leave any real property adjoining the highway or public
 45    right-of-way without access to an established highway or public right-of-way.
 46        (3)  In the event of abandonment and vacation, rights-of-way or  easements
 47    may  be reserved for the continued use of existing sewer, gas, water, or simi-
 48    lar pipelines and appurtenances, or other underground facilities as defined in
 49    section 55-2202, Idaho Code, for ditches or canals and appurtenances, and  for
 50    electric, telephone and similar lines and appurtenances.
 51        (4)  A  highway abandoned and vacated under the provisions of this section
 52    may be reclassified as a public right-of-way.
 53        (5)  Until abandonment is authorized by the commissioners, public  use  of
 54    the  highway  or  public  right-of-way  may  not  be  restricted or impeded by
 55    encroachment or installation of any obstruction restricting public use, or  by
                                                                        
                                           4
                                                                        
  1    the  installation  of signs or notices that might tend to restrict or prohibit
  2    public use. Any person violating the provisions of this  subsection  shall  be
  3    guilty of a misdemeanor.
  4        (6)  When a county or highway district desires the abandonment or vacation
  5    of  any  highway,  public  street or public right-of-way which was accepted as
  6    part of a platted subdivision said abandonment or  vacation  shall  be  accom-
  7    plished pursuant to the provisions of chapter 13, title 50, Idaho Code.
                                                                        
  8        SECTION  3.  That  Section 40-204A, Idaho Code, be, and the same is hereby
  9    repealed.
                                                                        
 10        SECTION 4.  That Chapter 2, Title 40, Idaho Code,  be,  and  the  same  is
 11    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 12    ignated as Section 40-204A, Idaho Code, and to read as follows:
                                                                        
 13        40-204A.  FEDERAL LAND RIGHTS-OF-WAY. (1) The legislature states that pub-
 14    lic policy of the state of Idaho is and long has been that  the  public  lands
 15    shall  remain  open to the public. No change in law is intended. This legisla-
 16    tion is intended solely to codify, confirm and clarify longstanding legal pre-
 17    cedent and state legislative purpose.
 18        (2)  That this section be construed in its most expansive sense.
 19        (3)  That the existence of the federal lands rights-of-way be construed in
 20    the most favorable sense for the public or its representatives.
 21        (4)  The legislature reaffirms council bill no. 7 by the first Idaho  ter-
 22    ritorial  legislature,  enacted  January 30, 1864, that declared all roads and
 23    trails in existence before January 30, 1862, as public highways. The  legisla-
 24    ture further reaffirms the 1881 Idaho territorial legislature's statutory road
 25    widths of sixty (60) feet except in then Idaho County where it declared eighty
 26    (80)  feet wide rights-of-way, which now apply to parts of Idaho, Valley, Cus-
 27    ter, Lemhi and other counties; and that the right-of-way widths are a minimum,
 28    not a maximum. That the right-of-way widths for these routes shall be as  rea-
 29    sonably needed for use of the route, unless clearly and positively shown to be
 30    otherwise. Additionally, the routes under council bill no. 7 and Revised Stat-
 31    ute  2477  are  part of prehistoric and historic travel corridors, or lines of
 32    communication, that have been in existence since mankind's first  use  of  the
 33    land in what is now the state of Idaho. Council bill no. 7 and Revised Statute
 34    2477 are to be construed together and in the expansive sense.
 35        (5)  The  state recognizes that the following principles of Idaho law have
 36    existed at all times since the enactment of Revised Statute 2477 in 1866:
 37        (a)  That the act of construction and first use constitute the  acceptance
 38        of the grant given to the public for federal lands rights-of-way, and that
 39        once  acceptance of the grant has been established, the grant shall be for
 40        the perpetual term granted by the congress of the United States;
 41        (b)  That the acceptance of the grant may be  shown  by  construction  and
 42        public  use  within a reasonable time given the particular facts; and that
 43        no mandatory time span applies, rather only  sufficient  construction  and
 44        use to show an acceptance;
 45        (c)  That  construction and use for the purposes of accepting the grant of
 46        a federal land right-of-way has, at all relevant  times  under  applicable
 47        Idaho  law,  meant  any  physical  act resulting in the establishment of a
 48        road, trail or route, including:
 49             (i)   Clearing obstacles so as to facilitate passage; or
 50             (ii)  The establishment of a road, trail or route by the  passage  of
 51             vehicles, people, domestic animals or livestock over time; and
 52        (d)  That  although  the establishment of public roads by prescription has
                                                                        
                                           5
                                                                        
  1        by statute, since 1893 required that the road in question be used for five
  2        (5) years by the public and maintained at public expense,  an  alternative
  3        form  of acceptance of the grant of a federal land right-of-way has always
  4        been possible by common law dedication, including an accomplished  dedica-
  5        tion  and  acceptance  by  the  mere construction and first use of a road,
  6        trail or route over the unreserved public domain by the public.
  7        (6)  The only method for abandonment, vacating, or any  restriction,  dis-
  8    continuance,  or any other loss of the public use of these rights-of-way shall
  9    be that of eminent domain proceedings in which  the  taking  of  the  public's
 10    right  to access shall be justly compensated. Neither the mere passage of time
 11    nor the frequency of use shall be considered a justification  for  considering
 12    these rights-of-way to have been abandoned, vacated, discontinued or use lost.
 13        (7)  Any  determination  of  the extent of taking of property, tangible or
 14    intangible, shall be by the county commissioners at a hearing where the right-
 15    of-way, route, travel corridor or line of communication lines that  have  been
 16    taken.  Any taking proceeding shall include as part of the damages or injuries
 17    both tangible and  intangible  property  ownership  and  the  damages  to  the
 18    county's  economic well-being, and/or the effect on its gross domestic product
 19    from the taking, whether the taking is partial or total, and shall be  consid-
 20    ered part of any rent, past, present or future.
 21        The  factual determination of the extent of damages and/or injuries by the
 22    county commissioners shall be final, exclusive, and binding factual determina-
 23    tion in any other proceeding, whether in facts, administrative,  law,  equity,
 24    or otherwise.
 25        The  county  commissioners  shall  make the decision that includes written
 26    findings of fact as a matter of local laws and as part of the substantive real
 27    property law of Idaho.
 28        (8)  All of the said rights-of-way shall be shown by some form of documen-
 29    tation to have existed prior to the withdrawal of the federal grant  in  1976,
 30    or to predate the removal of the land through which they transit from the pub-
 31    lic  domain  for  other public purposes. Documentation may take the form of at
 32    least a map, and an affidavit or other documentation that may  include  aerial
 33    photographs,  ground penetrating radar, side looking radar, infrared photogra-
 34    phy, satellite imagery or any other reasonable proof of the existence  of  the
 35    rights-of-way. Any documentation or map does not have to be dated prior to any
 36    removal  or  reservation. Surveys, books, and other historical information may
 37    also be included.
 38        (9)  A right-of-way, herein, may be a travel corridor, or line of communi-
 39    cation, and may be several miles wide, depending on  prehistoric  or  historic
 40    uses. An alteration or relocation of the path of the road, or detour around an
 41    obstacle,  whether temporary or permanent, shall not constitute abandonment or
 42    vacation of the right-of-way so long as the right-of-way  continues  to  serve
 43    the same general corridor.
 44        (10) Any rent, or any interest on unpaid rent, determined owed to the pub-
 45    lic  shall accrue from the first date of removal, reservation, or any restric-
 46    tion on use, from and after 1891, and any limitation of  action  on  the  same
 47    shall  be construed so as to allow any claim from 1891 to the date of the com-
 48    mencement of the action, and said rent and  interest  to  continue  to  accrue
 49    until final judgment is entered.
 50        (11) These  rights-of-way shall not require maintenance for the passage of
 51    vehicular traffic, nor shall any liability be incurred for  physical  degrada-
 52    tion  or  damage,  tangible  or  intangible injury or damage, through the mere
 53    existence of the right-of-way, route, or access or  to  maintain  any  highway
 54    sign. These rights-of-way shall be traveled at the risk of the user and may be
 55    maintained by the public through usage by the public.
                                                                        
                                           6
                                                                        
  1        (12) Any member of the public, the state of Idaho and any of its political
  2    subdivisions, and any agency of the federal government may choose to seek val-
  3    idation  of its rights under law to use granted rights-of-way either through a
  4    process set forth by the state of Idaho, through processes set  forth  by  any
  5    federal  agency or by proclamation of user rights granted under the provisions
  6    of the original act, Revised Statute 2477.
  7        (13) Proof of the existence of these routes shall be by a  simple  prepon-
  8    derance of the evidence standard, to wit: a featherweight. Disproof, or rebut-
  9    tal,  of  the  existence  of these rights-of-way, routes, travel corridors, or
 10    lines of communication shall require proof beyond the clear and positive  evi-
 11    dence standard, and that this is a matter of substantive real property law and
 12    local laws of the state of Idaho.
 13        (14) These  rights-of-way shall not be required to possess centerline sur-
 14    veys typical of publicly maintained roads, but  shall  be  surveyed  prior  to
 15    being accepted into the maintained public highway system.
 16        (15) Neither  the  granting of the original right-of-way nor any provision
 17    in this or any other state act shall  be  construed  as  a  relinquishment  of
 18    either  federal  ownership or management of the surface estate of the property
 19    over which the right-of-way passes. However, under the substantive real  prop-
 20    erty and local laws of the state of Idaho, these rights-of-way, routes, travel
 21    corridors,  or  lines  of  communication,  or  otherwise,  shall be considered
 22    inholdings on the federal lands, said inholdings are owned by the counties  of
 23    Idaho or other political subdivisions, or the state of Idaho, as the situation
 24    may require, on behalf of the public.
 25        (16) Persons  seeking acknowledgement of federal lands rights-of-way shall
 26    file with the county recorder the request for acknowledgement or assertion and
 27    supporting documentation. The county recorder shall record acknowledgements or
 28    assertions, including documentation, and maintain an appropriate index of  the
 29    same.
 30        (17) The  provisions of this act are part of the substantive real property
 31    laws and local laws of the state of Idaho.
                                                                        
 32        SECTION 5.  That Section 40-2319, Idaho Code, be, and the same  is  hereby
 33    amended to read as follows:
                                                                        
 34        40-2319.  ENCROACHMENTS  --  REMOVAL  --  NOTICE -- PENALTY FOR FAILURE TO
 35    REMOVE -- REMOVAL BY DIRECTOR OF HIGHWAYS -- ABATEMENT.  (1)  If  any  highway
 36    laid out or erected is encroached upon by fences, buildings, or otherwise, the
 37    director  of  highways  of the district may, orally or in writing, require the
 38    encroachment to be removed from the highway.  Unauthorized  road  closings  or
 39    unauthorized  closure  of  public highways are against the public interest and
 40    public policy of this state.
 41        (2)  Notice shall be given to the occupant or owner of the land, or person
 42    causing or owning the encroachment, or left at his place of  residence  if  he
 43    resides  in the county. If not, it shall be posted on the encroachment, speci-
 44    fying the breadth of the highway, the place and extent  of  the  encroachment,
 45    and requiring him to remove the encroachment within ten (10) days.
 46        (3)  If the encroachment is not removed, or commenced to be removed, prior
 47    to  the expiration of ten (10) days from the service or posting of the notice,
 48    the person who caused, owns or controls the  encroachment  shall  forfeit  one
 49    hundred  fifty  dollars  ($150.00)  for  each  day  the encroachment continues
 50    unmoved. If the encroachment is of a nature as  to  effectually  obstruct  and
 51    prevent  the  use  of the highway for vehicles, the director of highways shall
 52    immediately remove the encroachment.
 53        (4)  If the encroachment is denied, and the  owner,  occupant,  or  person
                                                                        
                                           7
                                                                        
  1    controlling  the  encroachment,  refuses  either to remove it or to permit its
  2    removal, the director of highways shall or a private individual  may  commence
  3    in  the proper court an action to abate the encroachment as a nuisance. If the
  4    director of highways recovers judgment, he may,  in  addition  to  having  the
  5    encroachment abated, recover one hundred fifty dollars ($150.00) for every day
  6    the nuisance remained after notice, as well as costs of the legal action. If a
  7    private  individual  commences the enforcement action, a service of notice can
  8    be by the county sheriff based on the affidavit  of  the  complainant  or  the
  9    director  of  highways. In addition to the penalties provided in this section,
 10    an additional civil penalty of up  to  fifty  percent  (50%)  of  the  penalty
 11    awarded shall be awarded to a successful complainant by the court.
 12        (5)  If  the  encroachment  is not denied, but is not removed for five (5)
 13    days after the notice is complete, the director of highways may remove  it  at
 14    the  expense  of  the owner, occupant, or person controlling the encroachment,
 15    and recover his costs and expenses, as well as the sum of  one  hundred  fifty
 16    dollars ($150.00) for each day the encroachment remained after notice was com-
 17    plete.
                                                                        
 18        SECTION  6.  SEVERABILITY.  The provisions of this act are hereby declared
 19    to be severable and if any provision of this act or the  application  of  such
 20    provision  to  any  person or circumstance is declared invalid for any reason,
 21    such declaration shall not affect the validity of the  remaining  portions  of
 22    this act.

Statement of Purpose / Fiscal Impact


     
     
                STATEMENT OF PURPOSE 
                     RS 09797C2 
                           
     The purpose of this legislation is to provide citizens with a more reliable road
     system and to provide citizens with increased ability to protect federal land
     rights-of-way from seizure by government or individuals. 
     
     
     
                    FISCAL IMPACT
     
     Only a positive fiscal impact. 
     
     
     
     
     
     
     
     Contact 
     Name: Sen. Lin Whitworth
     Phone: (208)332-1351 
     
                                                  STATEMENT OF PURPOSE/FISCAL NOTE                                S1434