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H0268.........................................by TRANSPORTATION AND DEFENSE
PUBLIC RIGHTS-OF-WAY - Amends and adds to existing law to revise procedures
relating to abandonment of and restriction of access on roads and highways
under the jurisdiction of county and highway districts.
02/15 House intro - 1st rdg - to printing
02/16 Rpt prt - to Transp
02/21 Rpt out - rec d/p - to 2nd rdg
02/22 2nd rdg - to 3rd rdg
02/23 3rd rdg - PASSED - 58-2-10
AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
Bradford, Bruneel, Callister, Campbell, Clark, Collins, Crow, Cuddy,
Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20),
Gagner, Hadley, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Kellogg,
Kunz, Lake, Langford, Loertscher, Mader, Marley, McKague, Meyer,
Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy, Raybould, Roberts,
Schaefer, Sellman, Shepherd, Smylie, Stevenson, Stone, Swan, Trail,
Wheeler, Wood, Young
NAYS -- Robison, Sali
Absent and excused -- Chase, Gould, Hammond, Jones, Kendell,
Montgomery, Ridinger, Smith, Tilman, Mr. Speaker
Floor Sponsor -- Wood
Title apvd - to Senate
02/26 Senate intro - 1st rdg - to Transp
03/14 Rpt out - rec d/p - to 2nd rdg
03/15 2nd rdg - to 3rd rdg
03/21 Ret'd to Transp
03/28 Rpt out - rec d/p - to 2nd rdg
Rls susp - 3rd rdg
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature First Regular Session - 2001
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 268
BY TRANSPORTATION AND DEFENSE COMMITTEE
1 AN ACT
2 RELATING TO ROADS; PROVIDING LEGISLATIVE INTENT; AMENDING SECTION 40-117,
3 IDAHO CODE, TO REVISE THE DEFINITION OF "PERSON" AND TO REVISE THE DEFINI-
4 TION OF "PUBLIC RIGHT-OF-WAY"; AMENDING SECTION 40-202, IDAHO CODE, TO
5 PROVIDE ADDITIONAL DUTIES OF BOARDS OF COUNTY AND HIGHWAY DISTRICT COMMIS-
6 SIONERS REGARDING MAPPING RESPONSIBILITIES AND OBTAINING INFORMATION ON
7 FEDERAL LAND RIGHTS-OF-WAY WITHIN THE COMMISSION'S JURISDICTION; AMENDING
8 CHAPTER 2, TITLE 40, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 40-202A,
9 IDAHO CODE, TO PROVIDE FOR ACCESS RESTRICTIONS IN THE PUBLIC INTEREST;
10 AMENDING SECTION 40-203, IDAHO CODE, TO PROVIDE THAT A BOARD OF COUNTY OR
11 HIGHWAY DISTRICT COMMISSIONERS SHALL EXCLUSIVELY USE A STATUTORY PROCE-
12 DURE, TO PROVIDE REFERENCE TO FEDERAL LAND RIGHTS-OF-WAY, TO CLARIFY WHEN
13 A COURT MAY DECLARE A ROAD ABANDONED, TO CLARIFY THAT A CHARGE PAYABLE TO
14 THE COUNTY OR HIGHWAY DISTRICT MAY BE STIPULATED TO BETWEEN THE COMMIS-
15 SIONERS AND THE ADJACENT LANDOWNER TO WHOM OWNERSHIP OF THE HIGHWAY OR
16 PUBLIC RIGHT-OF-WAY WILL REVERT, TO CLARIFY THAT SUCH CHARGE SHALL NOT
17 EXCEED THE FAIR MARKET VALUE OF THE PARCEL AND TO MAKE TECHNICAL CORREC-
18 TIONS; AMENDING SECTION 40-204A, IDAHO CODE, TO PROVIDE A STATEMENT OF
19 PUBLIC POLICY REGARDING PRINCIPLES OF IDAHO SUBSTANTIVE REAL PROPERTY LAW
20 RELATING TO FEDERAL GRANTS OF PUBLIC LAND RIGHTS-OF-WAY, TO PROVIDE FOR
21 THE EXCLUSIVE METHOD FOR RECOGNIZING THE ABANDONMENT, VACATING OR OTHER
22 RESTRICTION OR LOSS OF PUBLIC USE OF FEDERAL LAND RIGHTS-OF-WAY, TO PRO-
23 VIDE THAT CERTAIN ALTERATIONS, RELOCATIONS AND DETOURS SHALL NOT CONSTI-
24 TUTE ABANDONMENT OR VACATION OF FEDERAL LAND RIGHTS-OF-WAY, TO PROVIDE
25 THAT PRIVATELY HELD FEDERAL LAND RIGHTS-OF-WAY ARE NOT SUBJECT TO CERTAIN
26 PROVISIONS OF TITLE 40, IDAHO CODE, TO PROVIDE THAT PRIVATELY HELD FEDERAL
27 LAND RIGHTS-OF-WAY MAY BE TAKEN OR LOST ONLY PURSUANT TO SPECIFIED REAL
28 PROPERTY LAW AND TO PROVIDE THAT THE PROVISIONS OF TITLE 40, IDAHO CODE,
29 SHALL BE CONSTRUED BROADLY TO MAINTAIN PUBLIC ACCESS TO FEDERAL LAND
30 RIGHTS-OF-WAY; AMENDING SECTION 40-2319, IDAHO CODE, TO PROVIDE A CRIMINAL
31 PENALTY FOR FAILURE TO REMOVE ENCROACHMENTS AND TO PROVIDE FOR INITIATION
32 OF PROCEEDINGS TO REMOVE AN ENCROACHMENT; PROVIDING FOR SEVERABILITY; AND
33 DECLARING AN EMERGENCY.
34 Be It Enacted by the Legislature of the State of Idaho:
35 SECTION 1. LEGISLATIVE INTENT. (1) The Legislature of the State of Idaho
36 finds:
37 (a) That existing federal land rights-of-way are extremely important to
38 all of Idaho's citizens;
39 (b) That two-thirds of Idaho's land is public land controlled by the fed-
40 eral government of the United States;
41 (c) That access to such federal public land and other public lands is
42 integral to public use;
43 (d) That the federal, state and local governments that control such pub-
44 lic lands hold title to such lands as trustee for the public;
2
1 (e) That the public policy of the state of Idaho is and long has been
2 that the public lands and rights-of-way shall remain open to the public;
3 (f) That Idaho substantive real property law has always recognized two
4 methods by which a valid dedication of a road, route, trail or way over
5 public lands to the public may occur: statutory dedication and common law
6 dedication;
7 (g) That statutory dedication, including prescriptive use of a road by
8 the public for five years and maintenance at public expense, has never
9 been necessary to the statutory dedication or grant under R.S. 2477, for-
10 merly 43 U.S.C. section 932, with its common law acceptance of the said
11 dedication or grant;
12 (h) That the essential elements of a common law dedication of a road,
13 route, trail or way are an offer by the owner, clearly and unequivocally
14 indicated by his words or acts evidencing his intention to dedicate the
15 land to a public use, and an acceptance of the offer by the public.
16 (Worley Highway Dist. v. Yacht Club, 116 Idaho 219, 775 P.2d 111 (1989)
17 and Thiessen v. City of Lewiston, 26 Idaho 505, 144 Pac. 548 (1914));
18 (i) That the enactment of the enabling legislation for the federal land
19 rights-of-way grants, in and of itself, constituted an offer by the fed-
20 eral government evidencing an intention to dedicate by statute the roads,
21 routes, trails or ways to a public use; and
22 (j) That agencies of the federal government themselves have previously
23 acknowledged the longstanding common law means by which the offer of fed-
24 eral land rights-of-way may be accepted by construction and use consisting
25 of "the physical act of readying the highway for use by the public accord-
26 ing to the available or intended mode of transportation -- foot, horse or
27 vehicle. Removing high vegetation, moving large rocks out of the way or
28 filling low spots may be sufficient as construction for a particular case.
29 Road maintenance or the passage of vehicles by users over time may equal
30 construction." BLM Manual, Rel. 2-263 Section 2801.48.B.1 (March 8, 1989).
31 (2) Therefore, it is hereby declared that the purposes of this act are:
32 (a) To establish as part of the substantive real property law of the
33 state of Idaho a procedure for identifying and confirming the existence of
34 previously established federal rights-of-way to protect those rights pre-
35 viously granted to, and vested in, the citizens of Idaho;
36 (b) To enact as part of the substantive real property law of the state of
37 Idaho standards of proof, burdens of proof, and presumptions that stem
38 from the title to trustee nature of the federal, state and local title to
39 public lands and federal rights-of-way; and
40 (c) To codify, confirm and clarify longstanding legal precedent regarding
41 the substantive real property law of the state of Idaho and federal land
42 rights-of-way.
43 SECTION 2. That Section 40-117, Idaho Code, be, and the same is hereby
44 amended to read as follows:
45 40-117. DEFINITIONS -- P. (1) "Person" includes every natural person,
46 firm, fiduciary, copartnership, association, corporation, any entity or agency
47 of state or federal government or any political subdivision thereof, trustee,
48 receiver or assignee for the benefit of creditors.
49 (2) "Place." (See "Maintain," section 40-114, Idaho Code)
50 (3) "Primary system" or "primary highway" means any portion of the high-
51 ways of the state, as officially designated, or as may hereafter be so desig-
52 nated, by the Idaho transportation board, and approved by the secretary of
53 transportation, pursuant to the provisions of title 23, U.S. Code, "Highways."
3
1 (4) "Public highway agency" means the state transportation department,
2 any city, county, highway district or other political subdivision of the state
3 with jurisdiction over public highway systems and public rights-of-way.
4 (5) "Public highways" means all highways open to public use in the state,
5 whether maintained by the state or by any county, highway district, city, or
6 other political subdivision. (Also see "Highways," section 40-109, Idaho Code)
7 (6) "Public right-of-way" means either a federal land right-of-way owned
8 by the state of Idaho or any political subdivision thereof, or any other
9 right-of-way which is open to the public and under the jurisdiction of a pub-
10 lic highway agency, where, in either case, the public highway agency has shall
11 have no obligation to construct or maintain, but may expend funds for the
12 maintenance of, said public right-of-way or post traffic signs for vehicular
13 traffic on said public right-of-way. In addition, a public right-of-way
14 includes a right-of-way which was originally intended for development as a
15 highway and was accepted on behalf of the public by deed of purchase, fee sim-
16 ple title, authorized easement, eminent domain, by plat, prescriptive use, or
17 abandonment of a highway pursuant to section 40-203, Idaho Code, but shall not
18 include federal land rights-of-way, as provided in section 40-204A, Idaho
19 Code, that resulted from the creation of a facility for the transmission of
20 water. Public rights-of-way shall not be considered improved highways for the
21 apportionment of funds from the highway distribution account.
22 (7) "Public transportation services" means, but is not limited to, fixed
23 transit routes, scheduled or unscheduled transit services provided by motor
24 vehicle, bus, rail, van, aerial tramway and other modes of public conveyance;
25 paratransit service for the elderly and disabled; shuttle and commuter service
26 between cities, counties, health care facilities, employment centers, educa-
27 tional institutions or park-and-ride locations; subscription van and car pool-
28 ing services; transportation services unique to social service programs; and
29 the management and administration thereof.
30 SECTION 3. That Section 40-202, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 40-202. DESIGNATION OF HIGHWAYS AND PUBLIC RIGHTS-OF-WAY. (1) The initial
33 selection of the county highway system and highway district system may be
34 accomplished in the following manner:
35 (a) The board of county or highway district commissioners shall cause a
36 map to be prepared showing the general location of each highway and public
37 right-of-way in their jurisdiction, and the commissioners shall cause
38 notice to be given of intention to adopt the map as the official map of
39 that system, and shall specify the time and place at which all interested
40 persons may be heard.
41 (b) After the hearing, the commissioners shall adopt the map, with any
42 changes or revisions considered by them to be advisable in the public
43 interest, as the official map of the respective highway system.
44 (2) If a county or highway district acquires an interest in real property
45 for highway or public right-of-way purposes, the respective commissioners
46 shall:
47 (a) Cause any order or resolution enacted, and deed or other document
48 establishing an interest in the property for their highway system purposes
49 to be recorded in the county records; or
50 (b) Cause the official map of the county or highway district system to be
51 amended as affected by the acceptance of the highway or public right-of-
52 way.
53 Provided, however, a county with highway jurisdiction or highway district may
4
1 hold title to an interest in real property for public right-of-way purposes
2 without incurring an obligation to construct or maintain a highway within the
3 right-of-way until the county or highway district determines that the necessi-
4 ties of public travel justify opening a highway within the right-of-way. The
5 lack of an opening shall not constitute an abandonment, and mere use by the
6 public shall not constitute an opening of the public right-of-way.
7 (3) Highways laid out, recorded and opened as described in subsection (2)
8 of this section, by order of a board of commissioners, and all highways used
9 for a period of five (5) years, provided they shall have been worked and kept
10 up at the expense of the public, or located and recorded by order of a board
11 of commissioners, are highways. If a highway created in accordance with the
12 provisions of this subsection is not opened as described in subsection (2) of
13 this section, there shall be no duty to maintain that highway, nor shall there
14 be any liability for any injury or damage for failure to maintain it or any
15 highway signs, until the highway is designated as a part of the county or
16 highway district system and opened to public travel as a highway.
17 (4) When a public right-of-way is created in accordance with the provi-
18 sions of subsection (2) of this section, or section 40-203 or 40-203A, Idaho
19 Code, there shall be no duty to maintain that public right-of-way, nor shall
20 there be any liability for any injury or damage for failure to maintain it or
21 any highway signs.
22 (5) Nothing in this section shall limit the power of any board of commis-
23 sioners to subsequently include or exclude any highway or public right-of-way
24 from the county or highway district system.
25 (6) By July 1, 2005, and every five (5) years thereafter, the board of
26 county or highway district commissioners shall have published in map form and
27 made readily available a map showing the general location of all public
28 rights-of-way under its jurisdiction. Any board of county or highway district
29 commissioners may be granted an extension of time with approval of the legis-
30 lature by adoption of a concurrent resolution. In aid of this responsibility,
31 each highway district or county commission shall communicate and coordinate
32 with all federal and state agencies administering land within the commission's
33 jurisdiction. The commission shall seek from the federal or state agencies all
34 available information respecting the current status of all federal land
35 rights-of-way within the commission's jurisdiction, including any information
36 regarding authorized or unauthorized restrictions or physical limitations on
37 access and public use thereof. All such information made available to the com-
38 mission, whether obtained from federal agencies or otherwise, shall be deemed
39 a part of the public record and made available pursuant to applicable law gov-
40 erning public records.
41 (7) Nothing in this section or in any designation of the general location
42 of a highway or public right-of-way shall authorize the public highway agency
43 to assert or claim rights superior to or in conflict with any rights-of-way
44 that resulted from the creation of a facility for the transmission of water
45 which existed before the designation of the location of a highway or public
46 right-of-way.
47 SECTION 4. That Chapter 2, Title 40, Idaho Code, be, and the same is
48 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
49 ignated as Section 40-202A, Idaho Code, and to read as follows:
50 40-202A. ACCESS RESTRICTIONS IN THE PUBLIC INTEREST. (1) The county or
51 highway district commissioners (hereinafter referred to as commissioners) have
52 the authority to protect the public interest by restricting access on or
53 imposing conditions for the use of a public highway or public right-of-way
5
1 under their jurisdiction.
2 (2) Such restrictions or conditions may be implemented through temporary
3 agreements with adjacent landowners. In the absence of such agreement, any
4 restriction of access to or use of any public highway or public right-of-way
5 shall be deemed a violation of section 40-2319, Idaho Code, and shall be pun-
6 ishable as provided thereunder.
7 (3) Such restrictions or conditions shall not be deemed an abandonment,
8 forfeiture or vacation of the public highway or public right-of-way. Nor shall
9 such restrictions or conditions disqualify a highway or right-of-way from the
10 definition of public highway or public right-of-way.
11 (4) The commissioners shall set a reasonable duration, not to exceed two
12 (2) years, for the restrictions and conditions.
13 (5) No new restriction or condition shall be imposed or agreed to without
14 first conducting a public hearing on the matter with at least thirty (30)
15 days' advance notice and opportunity for public comment. Notice shall include
16 a general description of the location of the public highway or public right-
17 of-way; identification of the petitioner and nature of the petition, if any; a
18 description of any other proposed action; and a statement that the commission-
19 ers will accept written and oral testimony and evidence. At the time of publi-
20 cation, notice shall also be mailed to any person who has requested notifica-
21 tion of hearings under this section.
22 (6) Once established, the duration of such restrictions and conditions
23 may be extended by the commissioners upon thirty (30) days' advance notice to
24 the public and to the affected landowners and requesting parties, if any. The
25 commissioners may act on a proposed extension without public hearing if no
26 comment or petition is received by the time set for decision.
27 (7) Proceedings to impose, extend, modify or revoke such restrictions or
28 conditions may be initiated at any time by any person through a petition to
29 the county commission or highway district commission or by either commission's
30 own action. Said commissioners shall respond to any such petition within four
31 (4) weeks, by scheduling a hearing or taking other appropriate action. Unless
32 otherwise requested or agreed to by the petitioner, the commissioners shall
33 make every reasonable effort to conduct a hearing on the petition in conjunc-
34 tion with the next regularly scheduled public meeting of the commissioners.
35 (8) Judicial review of the commissioners' final action shall be available
36 in the same manner as provided in section 40-208, Idaho Code, for review of
37 abandonment, vacation or validation proceedings. Failure of the commissioners
38 to act within four (4) weeks of any hearing initiated by petition under this
39 section shall be deemed denial of the petition and shall constitute final
40 action subject to judicial review.
41 SECTION 5. That Section 40-203, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43 40-203. ABANDONMENT AND VACATION OF COUNTY AND HIGHWAY DISTRICT SYSTEM
44 HIGHWAYS OR PUBLIC RIGHTS-OF-WAY. (1) A board of county or highway district
45 commissioners, whichever shall have jurisdiction of the highway system, shall
46 use the following procedure exclusively, in all cases, regardless of when an
47 abandonment allegedly may have occurred, to abandon and vacate any highway or
48 public right-of-way in the county or highway district system and including
49 those which furnish public access to state and all federal public lands and
50 waters: land rights-of-way as described in section 40-204A, Idaho Code. No
51 court has authority to declare any public right-of-way, including a federal
52 land right-of-way, abandoned or vacated, regardless of when the abandonment or
53 vacation is alleged to have occurred, except pursuant to a proper appeal of a
6
1 determination of an abandonment and vacation pursuant to this section.
2 (a) The commissioners may by resolution declare its their intention to
3 abandon and vacate any highway or public right-of-way considered no longer
4 to be in the public interest.
5 (b) Any resident, or property holder, within a county or highway district
6 system including the state of Idaho, any of its subdivisions, or any
7 agency of the federal government may petition the respective commissioners
8 for abandonment and vacation of any highway or public right-of-way within
9 their highway system. The petitioner shall pay a reasonable fee as deter-
10 mined by the commissioners to cover the cost of the proceedings.
11 (c) The commissioners shall establish a hearing date or dates on the pro-
12 posed abandonment and vacation.
13 (d) The commissioners shall prepare a public notice stating their inten-
14 tion to hold a public hearing to consider the proposed abandonment and
15 vacation of a highway or public right-of-way which shall be made available
16 to the public not later than thirty (30) days prior to any hearing and
17 mailed to any person requesting a copy not more than three (3) working
18 days after any such request.
19 (e) At least thirty (30) days prior to any hearing scheduled by the com-
20 missioners to consider abandonment and vacation of any highway or public
21 right-of-way, the commissioners shall mail notice by United States mail to
22 known owners and operators of an underground facility, as defined in sec-
23 tion 55-2202, Idaho Code, that lies within the highway or public right-of-
24 way.
25 (f) At least thirty (30) days prior to any hearing scheduled by the com-
26 missioners to consider abandonment and vacation of any highway or public
27 right-of-way, the commissioners shall mail notice to owners of record of
28 land abutting the portion of the highway or public right-of-way proposed
29 to be abandoned and vacated at their addresses as shown on the county
30 assessor's tax rolls and shall publish notice of the hearing at least two
31 (2) times if in a weekly newspaper or three (3) times if in a daily news-
32 paper, the last notice to be published at least five (5) days and not more
33 than twenty-one (21) days before the hearing.
34 (g) At the hearing, the commissioners shall accept all information relat-
35 ing to the proceedings. Any person, including the state of Idaho or any
36 of its subdivisions, or any agency of the federal government, may appear
37 and give testimony for or against abandonment.
38 (h) After completion of the proceedings and consideration of all related
39 information, the commissioners shall decide whether the abandonment and
40 vacation of the highway or public right-of-way is in the public interest
41 of the highway jurisdiction affected by the abandonment or vacation. The
42 decision whether or not to abandon and vacate the highway or public right-
43 of-way shall be written and shall be supported by findings of fact and
44 conclusions of law.
45 (i) If the commissioners determine that a highway or public right-of-way
46 parcel to be abandoned and vacated in accordance with the provisions of
47 this section has a fair market value of twenty- two thousand five hundred
48 dollars ($2,500) or more, a charge payable to the county or highway dis-
49 trict may be imposed upon agreed to between the commissioners and the
50 acquiring entity, meaning the adjacent landowner to whom ownership of the
51 highway or public right-of-way will revert, provided that such charge
52 shall not in excess of exceed the fair market value of the parcel, as a
53 condition of the abandonment and vacation; provided, however, no such
54 charge shall be imposed on the landowner who originally dedicated such
55 parcel to the public for use as a highway or public right-of-way; and pro-
7
1 vided further, that if the highway or public right-of-way was originally a
2 federal land right-of-way, said highway or public right-of-way shall
3 revert to a federal land right-of-way.
4 (j) The commissioners shall cause any order or resolution to be recorded
5 in the county records and the official map of the highway system to be
6 amended as affected by the abandonment and vacation.
7 (k) From any such decision, a resident or property holder within the
8 county or highway district system, including the state of Idaho or any of
9 its subdivisions or any agency of the federal government, may appeal to
10 the district court of the county in which the highway or public right-of-
11 way is located pursuant to section 40-208, Idaho Code.
12 (2) No highway or public right-of-way or parts thereof shall be abandoned
13 and vacated so as to leave any real property adjoining the highway or public
14 right-of-way without access to an established highway or public right-of-way.
15 (3) In the event of abandonment and vacation, rights-of-way or easements
16 may be reserved for the continued use of existing sewer, gas, water, or simi-
17 lar pipelines and appurtenances, or other underground facilities as defined in
18 section 55-2202, Idaho Code, for ditches or canals and appurtenances, and for
19 electric, telephone and similar lines and appurtenances.
20 (4) A highway abandoned and vacated under the provisions of this section
21 may be reclassified as a public right-of-way.
22 (5) Until abandonment is authorized by the commissioners, public use of
23 the highway or public right-of-way may not be restricted or impeded by
24 encroachment or installation of any obstruction restricting public use, or by
25 the installation of signs or notices that might tend to restrict or prohibit
26 public use. Any person violating the provisions of this subsection shall be
27 guilty of a misdemeanor.
28 (6) When a county or highway district desires the abandonment or vacation
29 of any highway, public street or public right-of-way which was accepted as
30 part of a platted subdivision said abandonment or vacation shall be accom-
31 plished pursuant to the provisions of chapter 13, title 50, Idaho Code.
32 SECTION 6. That Section 40-204A, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 40-204A. FEDERAL LAND RIGHTS-OF-WAY. (1) The state of Idaho recognizes,
35 that confirms and reaffirms the following principles of Idaho substantive real
36 property law which have existed at all times since the federal grant of public
37 land rights-of-way in 1866 or earlier:
38 (a) Federal land rights-of-way grants are self-executing offers to dedi-
39 cate. The acts of construction and first use constitute the a common law
40 acceptance of the statutory dedication or grant given to the public for
41 federal land rights-of-way., and that oOnce acceptance of the grant has
42 been established, the grant of vested property rights shall be for the
43 perpetual term granted by the congress of the United States, unless and
44 until affirmatively declared abandoned or vacated pursuant to section
45 40-203, Idaho Code. The abandonment rules in former section 40-104, Idaho
46 Code (repealed in 1985), applied only to roads created by prescription and
47 did not apply at any time to highways or rights-of-way created by dedica-
48 tion, whether formal or common law.
49 (b) Acceptance of a federal land right-of-way may be accomplished by
50 either: (i) satisfaction of formal statutory dedication requirements then
51 in effect; or (ii) common law acceptance. Idaho's common law consistently
52 has held that construction and use are among the sufficient means of
53 acceptance of an offer of dedication. Such construction requires only the
8
1 physical act of readying the right-of-way for use by the public according
2 to the available or intended mode of transportation, whether by foot, ani-
3 mal or vehicle. Other principles of common law dedication, such as sub-
4 stantial compliance with platting requirements, provide additional satis-
5 factory means of acceptance. The legislature hereby adopts and reaffirms
6 the principles of common law dedication in the context of federal land
7 rights-of-way. When a federal land right-of-way is accepted through common
8 law dedication, there is no need to meet the statutory requirements for
9 formal dedication or prescription.
10 (2) The only method for recognizing the abandonment, vacating, or any
11 restriction or other loss of public use of these federal land rights-of-way
12 shall be that of eminent domain proceedings in which the taking of the
13 public's right to access shall be justly compensated. Neither in accordance
14 with section 40-202A or 40-203, Idaho Code; provided however, that neither the
15 mere passage of time nor the frequency of use shall be considered a justifica-
16 tion for considering these rights-of-way to have been abandoned. An alteration
17 or relocation of the path of the federal land right-of-way, or detour around
18 an obstacle, whether temporary or permanent, does not constitute abandonment
19 or vacation of the right-of-way so long as the right-of-way continues to serve
20 the same general travel corridor.
21 (3) All of the said rights-of-way shall be shown by some form of documen-
22 tation to have existed prior to the withdrawal of the federal grant in 1976 or
23 to predate the removal of land through which they transit from the public
24 domain for other public purposes. Documentation may take the form of a map, an
25 affidavit, surveys, books or other historic information.
26 (4) These rights-of-way shall not require maintenance for the passage of
27 vehicular traffic, nor shall any liability be incurred for injury or damage
28 through a failure to maintain the access or to maintain any highway sign.
29 These rights-of-way shall be traveled at the risk of the user and may be main-
30 tained by the public through usage by the public.
31 (5) Any member of the public, the state of Idaho and any of its political
32 subdivisions, and any agency of the federal government may choose to seek val-
33 idation of its rights under law to use granted rights-of-way either through a
34 process set forth by the state of Idaho, through processes set forth by any
35 federal agency or by proclamation of user rights granted under the provisions
36 of the original act, Revised Statute 2477.
37 Persons seeking to have a federal land right-of-way, including those which
38 furnish public access to state and federal public lands and waters, validated
39 as a highway or public right-of-way as part of a county or highway official
40 highway system, shall follow the procedure outlined in section 40-203A, Idaho
41 Code.
42 Neither the granting of the original right-of-way nor any provision in
43 this or any other state act shall be construed as a relinquishment of either
44 federal ownership or management of the surface estate of the property over
45 which the right-of-way passes.
46 (6) Persons seeking acknowledgement of federal land rights-of-way shall
47 file with the county recorder the request for acknowledgement and for any sup-
48 porting documentation. The county recorder shall record acknowledgements,
49 including supporting documentation, and maintain an appropriate index of same.
50 (7) In some instances, a federal land rights-of-way grant may have been
51 accepted directly by private parties. Such privately held federal land rights-
52 of-way are in every respect private property and are not subject to those pro-
53 visions of this title applicable to publicly held highways and rights-of-way.
54 Specifically, such privately held federal land rights-of-way are not subject
55 to the vacation or abandonment proceedings set forth in section 40-203, Idaho
9
1 Code. In addition, such privately held federal land rights-of-way may be taken
2 or lost only pursuant to eminent domain, prescription or other applicable real
3 property law.
4 (8) The state of Idaho holds an interest on behalf of the people of Idaho
5 in all federal land rights-of-way, other than those held by private parties as
6 described in subsection (7) of this section, regardless of whether such fed-
7 eral land rights-of-way are under the jurisdiction of a county or highway dis-
8 trict. This interest is sufficient to confer standing on the state of Idaho to
9 defend the state's interest in such property.
10 (9) Other sections of this title shall be read and construed in order to
11 most broadly effectuate the goal of maintaining public access to federal land
12 rights-of-way as provided in this section.
13 SECTION 7. That Section 40-2319, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 40-2319. ENCROACHMENTS -- REMOVAL -- NOTICE -- PENALTY FOR FAILURE TO
16 REMOVE -- REMOVAL BY COUNTY OR HIGHWAY DISTRICT -- ABATEMENT. (1) If any high-
17 way or public right-of-way under the jurisdiction of a county or highway dis-
18 trict is encroached upon by gates, fences, buildings, or otherwise, the appro-
19 priate county or highway district may require the encroachment to be removed.
20 If the encroachment is of a nature as to effectually obstruct and prevent the
21 use of the highway or public right-of-way for vehicles, the county or highway
22 district shall immediately cause the encroachment to be removed.
23 (2) Notice shall be given to the occupant or owner of the land, or person
24 causing or owning the encroachment, or left at his place of residence if he
25 resides in the highway jurisdiction. If not, it shall be posted on the
26 encroachment, specifying the place and extent of the encroachment, and requir-
27 ing him to remove the encroachment within ten (10) days.
28 (3) If the encroachment is not removed, or commenced to be removed, prior
29 to the expiration of ten (10) days from the service or posting the notice, the
30 person who caused, owns or controls the encroachment shall forfeit up to one
31 hundred fifty dollars ($150) for each day the encroachment continues
32 unremoved.
33 (4) If the encroachment is denied, and the owner, occupant, or person
34 controlling the encroachment, refuses either to remove it or to permit its
35 removal, the county or highway district shall commence in the proper court an
36 action to abate the encroachment as a nuisance. If the county or highway dis-
37 trict recovers judgment, it may, in addition to having the encroachment
38 abated, recover up to one hundred fifty dollars ($150) for every day the nui-
39 sance remained after notice, as well as costs of the legal action and removal.
40 (5) If the encroachment is not denied, but is not removed within five (5)
41 days after the notice is complete, the county or highway district may remove
42 it at the expense of the owner, occupant, or person controlling the encroach-
43 ment, and the county or highway district may recover costs and expenses, as
44 well as the sum of up to one hundred fifty dollars ($150) for each day the
45 encroachment remained after notice was complete.
46 (6) In addition to or in lieu of the civil penalties provided in this
47 section, any person described in subsection (3), (4) or (5) of this section is
48 guilty of a misdemeanor and subject to prosecution as provided in section
49 40-207, Idaho Code, and no such remedies as provided shall be exclusive.
50 (7) Any person may initiate a proceeding to remove an encroachment under
51 this section by filing a petition with the county or highway district commis-
52 sioners with jurisdiction over the affected public highway or public right-of-
53 way. The commission shall act on such petition within thirty (30) days.
10
1 SECTION 8. SEVERABILITY. The provisions of this act are hereby declared
2 to be severable and if any provision of this act or the application of such
3 provision to any person or circumstance is declared invalid for any reason,
4 such declaration shall not affect the validity of the remaining portions of
5 this act.
6 SECTION 9. An emergency existing therefor, which emergency is hereby
7 declared to exist, this act shall be in full force and effect on and after its
8 passage and approval.
STATEMENT OF PURPOSE
RS 10825C2
Relating to Rights of--Way: Idaho Code Revision of Federal 2477
statute, to provide for duties of Boards of County Commissioners
and Highway District Commissioners. The exclusive method for
recognizing the abandonment, vacating, or other restrictions. To
provide that the provisions of Title Forty(40), Idaho Code shall
be construed broadly to maintain public access to federal Rights-
of-Ways.
FISCAL IMPACT
None to the State. Some cost to the counties and highway
districts for the notice and hearings costs required by this
bill.
Contact
Name: Rep. JoAn Wood
Phone:
322 1000
STATEMENT OF PURPOSE/FISCAL NOTE H 26