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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
|||| 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 to42 access shall be justly compensated. Neitherset 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