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S1500.....................................................by TRANSPORTATION
PUBLIC LANDS - Amends existing law to provide that a board of county or
highway district commissioners shall exclusively, in all cases, regardless
of when an abandonment occurred, use a statutory procedure and to clarify
when a court may declare a road abandoned; to provide a statement of public
policy that the public lands and rights-of-way remain open to the public;
to provide that federal lands rights-of-way be construed in the most
favorable sense for the public or its representatives; and to provide the
only method for recognizing the abandonment, vacating or any restriction or
other loss of public use.
02/21 Senate intro - 1st rdg - to printing
02/22 Rpt prt - to Transp
03/10 Rpt out - rec d/p - to 2nd rdg
03/13 2nd rdg - to 3rd rdg
03/16 3rd rdg - PASSED - 26-0-9
AYES--Andreason, Boatright, Branch, Burtenshaw, Cameron, Crow,
Danielson, Darrington, Davis, Deide, Dunklin, Hawkins, Ingram, Ipsen,
Keough, Lee, McLaughlin, Noh, Parry, Riggs, Sandy, Schroeder,
Sorensen, Wheeler, Whitworth, Williams
NAYS--None
Absent and excused--Bunderson, Frasure, Geddes, King-Barrutia,
Richardson, Risch, Stegner, Stennett, Thorne
Floor Sponsor - Whitworth
Title apvd - to House
03/17 House intro - 1st rdg - to Transp
S1500
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1500
BY TRANSPORTATION COMMITTEE
1 AN ACT
2 RELATING TO ROADS; PROVIDING LEGISLATIVE INTENT; AMENDING SECTION 40-203,
3 IDAHO CODE, TO PROVIDE THAT A BOARD OF COUNTY OR HIGHWAY DISTRICT COMMIS-
4 SIONERS SHALL EXCLUSIVELY IN ALL CASES, REGARDLESS OF WHEN AN ABANDONMENT
5 OCCURRED USE A STATUTORY PROCEDURE AND TO CLARIFY WHEN A COURT MAY DECLARE
6 A ROAD ABANDONED AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION
7 40-204A, IDAHO CODE, TO PROVIDE A STATEMENT OF PUBLIC POLICY THAT THE PUB-
8 LIC LANDS AND RIGHTS-OF-WAY REMAIN OPEN TO THE PUBLIC, TO PROVIDE THAT
9 FEDERAL LANDS RIGHTS-OF-WAY BE CONSTRUED IN THE MOST FAVORABLE SENSE FOR
10 THE PUBLIC OR ITS REPRESENTATIVES, TO PROVIDE THE ONLY METHOD FOR RECOG-
11 NIZING THE ABANDONMENT, VACATING OR ANY RESTRICTION OR OTHER LOSS OF PUB-
12 LIC USE AND TO MAKE TECHNICAL CORRECTIONS; AND PROVIDING SEVERABILITY.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. The legislature of the state of Idaho finds:
15 (a) That existing federal land rights-of-way are extremely important to
16 all of Idaho's citizens;
17 (b) That two-thirds of Idaho's land is public land controlled by the fed-
18 eral government of the United States;
19 (c) That access to such federal public land and other public lands is
20 integral to public use;
21 (d) That the federal, state and local governments that control such pub-
22 lic lands hold title to such lands as trustee for the public;
23 (e) That the public policy of the state of Idaho is and long has been
24 that the public lands and rights-of-way shall remain open to the public;
25 (f) That Idaho substantive real property law has always recognized two
26 methods by which a valid dedication of a road, route, trail or way over public
27 lands to the public may occur: statutory dedication and common law dedication;
28 (g) That statutory dedication, including prescriptive use of a road by
29 the public for five years and maintenance at public expense, has never been
30 necessary to an accomplished common law dedication of a federal land right-of-
31 way;
32 (h) That the essential elements of a common law dedication of a road,
33 route, trail or way are an offer by the owner, clearly and unequivocally indi-
34 cated by his words or acts evidencing his intention to dedicate the land to a
35 public use, and an acceptance of the offer by the public Worley Highway Dist.
36 v. Yacht Club, 116 Idaho 219, 775 P.2d 111 (1989);
37 (i) That the enactment of the enabling legislation for the federal land
38 right-of-way grants, in and of itself, constituted an offer by the federal
39 government evidencing an intention to dedicate the roads, routes, trails or
40 ways to a public use; and
41 (j) That agencies of the federal government themselves have previously
42 acknowledged the longstanding common law means by which the offer of federal
43 land rights-of-way may be accepted by construction and use consisting of "the
44 physical act of readying the highway for use by the public according to the
2
1 available or intended mode of transportation--foot, horse or vehicle. Removing
2 high vegetation, moving large rocks out of the way or filling low spots may be
3 sufficient as construction for a particular case. Road maintenance or the
4 passage of vehicles by users over time may equal construction." BLM Manual,
5 Rel. 2-263 Section 2801.48.B.1 (March 8, 1989).
6 (2) Therefore, it is hereby declared that the purposes of this act are:
7 (a) To establish as part of the substantive real property law of the
8 state of Idaho a procedure for identifying and confirming the existence of
9 previously established federal rights-of-way to protect those rights pre-
10 viously granted to, and vested in, the citizens of Idaho;
11 (b) To enact as part of the substantive real property law of the state of
12 Idaho standards of proof, burdens of proof, and presumptions that stem
13 from the title to trustee nature of the federal, state and local title to
14 public lands and federal rights-of-way; and
15 (c) To codify, confirm and clarify longstanding legal precedent regarding
16 the substantive real property law of the state of Idaho and federal land
17 rights-of-way.
18 SECTION 2. That Section 40-203, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 40-203. ABANDONMENT AND VACATION OF COUNTY AND HIGHWAY DISTRICT SYSTEM
21 HIGHWAYS OR PUBLIC RIGHTS-OF-WAY. (1) A board of county or highway district
22 commissioners, whichever shall have jurisdiction of the highway system, shall
23 use the following procedure exclusively, in all cases, regardless of when an
24 abandonment allegedly may have occurred, to abandon and vacate any highway or
25 public right-of-way in the county or highway district system including those
26 which furnish public access to state and federal public lands and waters:. No
27 court has authority to declare any public right-of-way abandoned, regardless
28 of when the abandonment may have allegedly occurred, except on a proper appeal
29 of a determination of abandonment and vacation pursuant to this section.
30 (a) The commissioners may by resolution declare its intention to abandon
31 and vacate any highway or public right-of-way considered no longer to be
32 in the public interest.
33 (b) Any resident, or property holder, within a county or highway district
34 system including the state of Idaho, any of its subdivisions, or any
35 agency of the federal government may petition the respective commissioners
36 for abandonment and vacation of any highway or public right-of-way within
37 their highway system. The petitioner shall pay a reasonable fee as deter-
38 mined by the commissioners to cover the cost of the proceedings.
39 (c) The commissioners shall establish a hearing date or dates on the pro-
40 posed abandonment and vacation.
41 (d) The commissioners shall prepare a public notice stating their inten-
42 tion to hold a public hearing to consider the proposed abandonment and
43 vacation of a highway or public right-of-way which shall be made available
44 to the public not later than thirty (30) days prior to any hearing and
45 mailed to any person requesting a copy not more than three (3) working
46 days after any such request.
47 (e) At least thirty (30) days prior to any hearing scheduled by the com-
48 missioners to consider abandonment and vacation of any highway or public
49 right-of-way, the commissioners shall mail notice by United States mail to
50 owners and operators of an underground facility, as defined in section
51 55-2202, Idaho Code, that lies within the highway or public right-of-way.
52 (f) At least thirty (30) days prior to any hearing scheduled by the com-
53 missioners to consider abandonment and vacation of any highway or public
3
1 right-of-way, the commissioners shall mail notice to owners of land abut-
2 ting the portion of the highway or public right-of-way proposed to be
3 abandoned and vacated at their addresses as shown on the county assessor's
4 tax rolls and shall publish notice of the hearing at least two (2) times
5 if in a weekly newspaper or three (3) times if in a daily newspaper, the
6 last notice to be published at least five (5) days and not more than
7 twenty-one (21) days before the hearing.
8 (g) At the hearing, the commissioners shall accept all information relat-
9 ing to the proceedings. Any person, including the state of Idaho or any
10 of its subdivisions, or any agency of the federal government, may appear
11 and give testimony for or against abandonment.
12 (h) After completion of the proceedings and consideration of all related
13 information, the commissioners shall decide whether the abandonment and
14 vacation of the highway or public right-of-way is in the public interest.
15 The decision whether or not to abandon and vacate the highway or public
16 right-of-way shall be written and shall be supported by findings of fact
17 and conclusions of law.
18 (i) If the commissioners determine that a highway or public right-of-way
19 parcel to be abandoned and vacated in accordance with the provisions of
20 this section has a fair market value of twenty-five hundred dollars
21 ($2,500) or more, a charge may be imposed upon the acquiring entity, not
22 in excess of the fair market value of the parcel, as a condition of the
23 abandonment and vacation; provided, however, no such charge shall be
24 imposed on the landowner who originally dedicated such parcel to the pub-
25 lic for use as a highway or public right-of-way.
26 (j) The commissioners shall cause any order or resolution to be recorded
27 in the county records and the official map of the highway system to be
28 amended as affected by the abandonment and vacation.
29 (k) From any such decision, a resident or property holder within the
30 county or highway district system, including the state of Idaho or any of
31 its subdivisions or any agency of the federal government, may appeal to
32 the district court of the county in which the highway or public right-of-
33 way is located pursuant to section 40-208, Idaho Code.
34 (2) No highway or public right-of-way or parts thereof shall be abandoned
35 and vacated so as to leave any real property adjoining the highway or public
36 right-of-way without access to an established highway or public right-of-way.
37 (3) In the event of abandonment and vacation, rights-of-way or easements
38 may be reserved for the continued use of existing sewer, gas, water, or simi-
39 lar pipelines and appurtenances, or other underground facilities as defined in
40 section 55-2202, Idaho Code, for ditches or canals and appurtenances, and for
41 electric, telephone and similar lines and appurtenances.
42 (4) A highway abandoned and vacated under the provisions of this section
43 may be reclassified as a public right-of-way.
44 (5) Until abandonment is authorized by the commissioners, public use of
45 the highway or public right-of-way may not be restricted or impeded by
46 encroachment or installation of any obstruction restricting public use, or by
47 the installation of signs or notices that might tend to restrict or prohibit
48 public use. Any person violating the provisions of this subsection shall be
49 guilty of a misdemeanor.
50 (6) When a county or highway district desires the abandonment or vacation
51 of any highway, public street or public right-of-way which was accepted as
52 part of a platted subdivision said abandonment or vacation shall be accom-
53 plished pursuant to the provisions of chapter 13, title 50, Idaho Code.
54 SECTION 3. That Section 40-204A, Idaho Code, be, and the same is hereby
4
1 amended to read as follows:
2 40-204A. FEDERAL LAND RIGHTS-OF-WAY. (1) The state of Idaho recognizes
3 that the following principles of Idaho substantive real property law have
4 existed at all times since 1866:
5 (a) That federal land rights-of-way grants are self-executing offers to
6 dedicate, that the act of construction and first use constitute the accep-
7 tance of the grant given to the public for federal land rights-of-way, and
8 that once acceptance of the grant has been established, the grant of
9 vested property rights shall be for the perpetual term granted by the con-
10 gress of the United States.
11 (b) That the acceptance of the grant for purposes of common law dedica-
12 tion may be shown either by:
13 (i) Existence of the road, trail, route or way at the time the
14 enabling legislation constituting the grant for that particular type
15 of federal land right-of-way grant was enacted;
16 (ii) A formal acceptance by public authorities; or
17 (iii) By construction and use.
18 (c) That construction and use for the purposes of accepting the grant of
19 a federal land right-of-way has, at all relevant times under applicable
20 Idaho law, meant any physical act of readying the highway for use by the
21 public according to the available or intended mode of transportation--
22 foot, horse, vehicle, including without limitation:
23 (i) Removing high vegetation, moving large rocks or other obstacles
24 out of the way, or filling low spots so as to facilitate passage.
25 (ii) The establishment of a defined route over time by the passage
26 of vehicles, people, domestic animals or livestock; or
27 (iii) The establishment of a defined route over time by road mainte-
28 nance by any person or entity.
29 (d) That although the statutory dedication of public roads by prescrip-
30 tion has since 1893 required that the road in question be used for five
31 (5) years by the public and maintained at public expense, alternative
32 forms of acceptance of the grant of a federal land right-of-way has always
33 been possible by common law dedication, including without limitation, the
34 enactment of R.S. 2477 constituting the offer and the acceptance being by:
35 (i) Construction and use; or by
36 (ii) Platting the property with reference to the federal land right-
37 of-way and conveying property to members of the public with reference
38 to the plat.
39 (2) The only method for recognizing the abandonment, vacating, or any
40 restriction, or other loss of public use, of these rights-of-way shall be that
41 of eminent domain proceedings in which the taking of the public's right to
42 access shall be justly compensated. Neither set forth in section 40-203, Idaho
43 Code, provided however, neither the mere passage of time nor the frequency of
44 use shall be considered a justification for considering these rights-of-way to
45 have been abandoned. An alteration or relocation of the path of the federal
46 land right-of-way, or detour around an obstacle, whether temporary or perma-
47 nent, shall not constitute abandonment or vacation of the right-of-way so long
48 as the right-of-way continues to serve the same general travel corridor.
49 (3) All of the said rights-of-way shall be shown by some form of documen-
50 tation to have existed prior to the withdrawal of the federal grant in 1976 or
51 to predate the removal of land through which they transit from the public
52 domain for other public purposes. Documentation shall take the form of at
53 least a map, and an affidavit. Surveys, books and other historic information
54 may also be included.
5
1 (4) These rights-of-way shall not require maintenance for the passage of
2 vehicular traffic, nor shall any liability be incurred for injury or damage
3 through a failure to maintain the access or to maintain any highway sign.
4 These rights-of-way shall be traveled at the risk of the user and may be main-
5 tained by the public through usage by the public.
6 (5) Any member of the public, the state of Idaho and any of its political
7 subdivisions, and any agency of the federal government may choose to seek val-
8 idation of its rights under law to use granted rights-of-way either through a
9 process set forth by the state of Idaho including, without limitation, section
10 40-203A, Idaho Code, through processes set forth by any federal agency or by
11 proclamation of user rights granted under the provisions of the original act,
12 Revised Statute 2477.
13 These rights-of-way shall not be required to possess centerline surveys
14 typical of publicly maintained roads, but shall be surveyed prior to being
15 accepted into the maintained public highway system.
16 Neither the granting of the original right-of-way nor any provision in
17 this or any other state act shall be construed as a relinquishment of either
18 federal ownership or management of the surface estate of the property over
19 which the right-of-way passes.
20 (6) Persons seeking acknowledgement of federal land rights-of-way shall
21 file with the county recorder the request for acknowledgement and for any sup-
22 porting documentation. The county recorder shall place the acknowledgement on
23 the official county road system map and shall record any such acknowledgments,
24 including documentation, and maintain an appropriate index of the same.
25 (7) This section shall be construed in its most expansive sense and the
26 existence of the federal lands rights-of-way be construed in the most favor of
27 preserving public access.
28 SECTION 4. SEVERABILITY. The provisions of this act are hereby declared
29 to be severable and if any provision of this act or the application of such
30 provision to any person or circumstance is declared invalid for any reason,
31 such declaration shall not affect the validity of the remaining portions of
32 this act.
STATEMENT OF PURPOSE
RS 10118
This Legislation is to provide for the protection of rights- of-way on roads and
highways that may, or may not, access public lands. This access is for the
protection of Idaho citizens, and their use of public lands.
FISCAL IMPACT
NONE
Contact
Name: Sen. Lin Whitworth
Phone: 332-1351
STATEMENT OF PURPOSE/FISCAL NOTE S1500