2002 Legislation
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HOUSE BILL NO. 730 – Rights-of-way, federally granted

HOUSE BILL NO. 730

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H0730.....................................................by WAYS AND MEANS
RIGHTS-OF-WAY - Amends existing law relating to federally-granted
rights-of-way to provide a procedure for a board of county commissioners to
determine the status and regulation of a federally-granted right-of-way.
                                                                        
03/06    House intro - 1st rdg - to printing
03/07    Rpt prt - to Transp
03/11    Rpt out - rec d/p - to 2nd rdg
03/12    2nd rdg - to 3rd rdg

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  Second Regular Session - 2002
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 730
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO ROADS; AMENDING SECTION 40-107, IDAHO CODE, TO REVISE THE  DEFINI-
  3        TION  OF  FEDERAL  LAND  RIGHTS-OF-WAY  AND TO MAKE TECHNICAL CORRECTIONS;
  4        AMENDING SECTION 40-117, IDAHO CODE, TO PROVIDE PROPER TERMINOLOGY AND USE
  5        OF THE TERM; AMENDING SECTION 40-203, IDAHO CODE, TO PROVIDE PROPER TERMI-
  6        NOLOGY, TO PROVIDE  FOR  RECORDING  ACKNOWLEDGMENTS  OF  FEDERALLY-GRANTED
  7        RIGHTS-OF-WAY  AND  TO  MAKE  A  TECHNICAL  CORRECTION;  AMENDING  SECTION
  8        40-203A, IDAHO CODE, TO PROVIDE THAT ANY FEDERALLY-GRANTED RIGHT-OF-WAY IS
  9        EXCEPTED  FROM  THE PROVISIONS OF THIS SECTION UNLESS IT HAS BEEN AFFIRMA-
 10        TIVELY RECOGNIZED AND MADE A PART OF A HIGHWAY  SYSTEM;  AMENDING  SECTION
 11        40-204A, IDAHO CODE, TO CLARIFY ACCEPTANCE OF THE GRANT BY RECOGNIZING THE
 12        ACTIONS  OF  THE  PUBLIC AND PUBLIC OFFICIALS INCLUDING THE COMMON LAW, TO
 13        PROVIDE EXCLUSIVE JURISDICTION OF THE COUNTY  WITH  REGARD  TO  FEDERALLY-
 14        GRANTED  RIGHTS-OF-WAY  AND TO REQUIRE THE PARTICIPATION OF AFFECTED LOCAL
 15        HIGHWAY  JURISDICTIONS  IN  A  DETERMINATION  PROCEEDING  OF   A   CLAIMED
 16        FEDERALLY-GRANTED  RIGHT-OF-WAY,  TO CLARIFY THE METHOD TO RELINQUISH SUCH
 17        RIGHTS-OF-WAY AND TO PROVIDE THE EFFECT OF SUCH RELINQUISHMENT, TO CLARIFY
 18        THAT LACK OF USE OR MAINTENANCE DOES  NOT  CONSTITUTE  RELINQUISHMENT,  TO
 19        PROVIDE  A PROCEDURE BY WHICH A BOARD OF COUNTY COMMISSIONERS SHALL DETER-
 20        MINE AND REGULATE A FEDERALLY-GRANTED RIGHT-OF-WAY, TO PROVIDE  FOR  JUDI-
 21        CIAL REVIEW OF A DETERMINATION BY A BOARD OF COUNTY COMMISSIONERS, TO PRO-
 22        VIDE FOR MANAGEMENT OF A FEDERALLY-GRANTED RIGHT-OF-WAY ON STATE ENDOWMENT
 23        LANDS,  TO DELETE REDUNDANT LANGUAGE, TO CLARIFY THAT FEDERAL OWNERSHIP OF
 24        THE SURFACE ESTATE OF PROPERTY OVER WHICH A  RIGHT-OF-WAY  PASSES  IS  NOT
 25        AFFECTED  BY  THE RIGHT-OF-WAY, TO PRECLUDE RETROACTIVE APPLICATION AND TO
 26        MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 40-208, IDAHO CODE,  TO  PRO-
 27        VIDE  THAT  THE DECISION OF  A BOARD OF COUNTY COMMISSIONERS REGARDING THE
 28        DETERMINATION OF A  FEDERALLY-GRANTED  RIGHT-OF-WAY  PURSUANT  TO  SECTION
 29        40-204A, IDAHO CODE, IS SUBJECT TO JUDICIAL REVIEW AS PROVIDED THEREIN AND
 30        TO MAKE TECHNICAL CORRECTIONS; AND DECLARING AN EMERGENCY.
                                                                        
 31    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 32        SECTION  1.  That  Section  40-107, Idaho Code, be, and the same is hereby
 33    amended to read as follows:
                                                                        
 34        40-107.  DEFINITIONS -- F. (1)  "Facilities" means tracks,  pipes,  mains,
 35    conduits, cables, wires, towers, poles, equipment and appliances.
 36        (2)  "Family"  means  two  (2) or more persons living together in the same
 37    dwelling unit who are related to each other by blood,  marriage,  adoption  or
 38    legal guardianship.
 39        (3)  "Farm  operation" means any activity conducted primarily for the pro-
 40    duction of agricultural products or commodities, including  timber,  for  sale
 41    and home use, and producing agricultural products or commodities in sufficient
 42    quantity to contribute materially to the operator's support.
 43        (4)  "Feeder  highway"  means  any  highway  which,  in the opinion of the
                                                                        
                                           2
                                                                        
  1    transportation board, is needed to create or facilitate access to  a  turnpike
  2    project upon which a toll is charged for transit.
  3        (5)  "Federally-granted  land  rights-of-way" means  rights-of-way on fed-
  4    eral land within the context of Revised Statute 2477, codified  as  43  United
  5    States Code 932, and other federal access grants and shall be considered to be
  6    any  road,  trail, access or  way upon which construction has been carried out
  7    to the standard in which public rights-of-way were built within historic  con-
  8    text.  These  rights-of-way  may  include, but not be limited to, horse paths,
  9    cattle trails, irrigation canals, waterways, ditches, pipelines or other means
 10    of water transmission and their attendant access for maintenance, wagon roads,
 11    jeep trails, logging roads, homestead roads, mine  to  market  roads  and  all
 12    other ways.
                                                                        
 13        SECTION  2.  That  Section  40-117, Idaho Code, be, and the same is hereby
 14    amended to read as follows:
                                                                        
 15        40-117.  DEFINITIONS -- P. (1) "Person"  includes  every  natural  person,
 16    firm, fiduciary, copartnership, association, corporation, trustee, receiver or
 17    assignee for the benefit of creditors.
 18        (2)  "Place." (See "Maintain," section 40-114, Idaho Code)
 19        (3)  "Primary  system" or "primary highway" means any portion of the high-
 20    ways of the state, as officially designated, or as may hereafter be so  desig-
 21    nated,  by  the  Idaho  transportation board, and approved by the secretary of
 22    transportation, pursuant to the provisions of title 23, U.S. Code, "Highways."
 23        (4)  "Public highway agency" means the  state  transportation  department,
 24    any city, county, highway district or other political subdivision of the state
 25    with jurisdiction over public highway systems and public rights-of-way.
 26        (5)  "Public highways" means all highways open to public use in the state,
 27    whether  maintained  by the state or by any county, highway district, city, or
 28    other political subdivision. (Also see "Highways," section 40-109, Idaho Code)
 29        (6)  "Public right-of-way" means a right-of-way open  to  the  public  and
 30    under  the  jurisdiction  of a public highway agency, where the public highway
 31    agency has no obligation to construct or maintain, but may  expend  funds  for
 32    the maintenance of, said public right-of-way or post traffic signs for vehicu-
 33    lar  traffic  on  said public right-of-way. In addition, a public right-of-way
 34    includes a right-of-way which was originally intended  for  development  as  a
 35    highway and was accepted on behalf of the public by deed of purchase, fee sim-
 36    ple  title, authorized easement, eminent domain, by plat, prescriptive use, or
 37    abandonment of a highway pursuant to section 40-203, Idaho Code, but shall not
 38    include federally-granted land rights-of-way, as provided in section  40-204A,
 39    Idaho Code, that resulted from the creation of a facility for the transmission
 40    of  water.  Public rights-of-way shall not be considered improved highways for
 41    the apportionment of funds from the highway distribution account.
 42        (7)  "Public transportation services" means, but is not limited to,  fixed
 43    transit  routes,  scheduled  or unscheduled transit services provided by motor
 44    vehicle, bus, rail, van, aerial tramway and other modes of public  conveyance;
 45    paratransit service for the elderly and disabled; shuttle and commuter service
 46    between  cities,  counties, health care facilities, employment centers, educa-
 47    tional institutions or park-and-ride locations; subscription van and car pool-
 48    ing services; transportation services unique to social service  programs;  and
 49    the management and administration thereof.
                                                                        
 50        SECTION  3.  That  Section  40-203, Idaho Code, be, and the same is hereby
 51    amended to read as follows:
                                                                        
                                           3
                                                                        
  1        40-203.  ABANDONMENT AND VACATION OF COUNTY AND  HIGHWAY  DISTRICT  SYSTEM
  2    HIGHWAYS  OR  PUBLIC  RIGHTS-OF-WAY. (1) A board of county or highway district
  3    commissioners, whichever shall have jurisdiction of the highway system,  shall
  4    use the following procedure to abandon and vacate any highway or public right-
  5    of-way  in the county or highway district system including those which furnish
  6    public access to state and federal public lands and waters:
  7        (a)  The commissioners may by resolution declare its intention to  abandon
  8        and  vacate  any highway or public right-of-way considered no longer to be
  9        in the public interest.
 10        (b)  Any resident, or property holder, within a county or highway district
 11        system including the state of Idaho,  any  of  its  subdivisions,  or  any
 12        agency of the federal government may petition the respective commissioners
 13        for  abandonment and vacation of any highway or public right-of-way within
 14        their highway system. The petitioner shall pay a reasonable fee as  deter-
 15        mined by the commissioners to cover the cost of the proceedings.
 16        (c)  The commissioners shall establish a hearing date or dates on the pro-
 17        posed abandonment and vacation.
 18        (d)  The  commissioners shall prepare a public notice stating their inten-
 19        tion to hold a public hearing to consider  the  proposed  abandonment  and
 20        vacation of a highway or public right-of-way which shall be made available
 21        to  the  public  not  later than thirty (30) days prior to any hearing and
 22        mailed to any person requesting a copy not more  than  three  (3)  working
 23        days after any such request.
 24        (e)  At  least thirty (30) days prior to any hearing scheduled by the com-
 25        missioners to consider abandonment and vacation of any highway  or  public
 26        right-of-way, the commissioners shall mail notice by United States mail to
 27        known  owners and operators of an underground facility, as defined in sec-
 28        tion 55-2202, Idaho Code, that lies within the highway or public right-of-
 29        way.
 30        (f)  At least thirty (30) days prior to any hearing scheduled by the  com-
 31        missioners  to  consider abandonment and vacation of any highway or public
 32        right-of-way, the commissioners shall mail notice to owners of  record  of
 33        land  abutting  the portion of the highway or public right-of-way proposed
 34        to be abandoned and vacated at their addresses  as  shown  on  the  county
 35        assessor's  tax rolls and shall publish notice of the hearing at least two
 36        (2) times if in a weekly newspaper or three (3) times if in a daily  news-
 37        paper, the last notice to be published at least five (5) days and not more
 38        than twenty-one (21) days before the hearing.
 39        (g)  At the hearing, the commissioners shall accept all information relat-
 40        ing  to  the proceedings.  Any person, including the state of Idaho or any
 41        of its subdivisions, or any agency of the federal government,  may  appear
 42        and give testimony for or against abandonment.
 43        (h)  After  completion of the proceedings and consideration of all related
 44        information, the commissioners shall decide whether  the  abandonment  and
 45        vacation  of  the highway or public right-of-way is in the public interest
 46        of the highway jurisdiction affected by the abandonment or  vacation.  The
 47        decision whether or not to abandon and vacate the highway or public right-
 48        of-way  shall  be  written  and shall be supported by findings of fact and
 49        conclusions of law.
 50        (i)  If the commissioners determine that a highway or public  right-of-way
 51        parcel  to  be  abandoned and vacated in accordance with the provisions of
 52        this section has a fair market value of twenty- two thousand five  hundred
 53        dollars  ($2,500)  or  more,  a  charge  may be imposed upon the acquiring
 54        entity, not in excess of the fair market value of  the parcel, as a condi-
 55        tion of the abandonment and vacation; provided, however,  no  such  charge
                                                                        
                                           4
                                                                        
  1        shall  be imposed on the landowner who originally dedicated such parcel to
  2        the public for use as a highway or public right-of-way; and provided  fur-
  3        ther,  that  if  the  highway  or  public  right-of-way  was  originally a
  4        federally-granted land right-of-way, said highway or  public  right-of-way
  5        shall revert to a federally-granted land right-of-way.
  6        (j)  The  commissioners shall cause any order or resolution to be recorded
  7        in the county records and the official map of the  highway  system  to  be
  8        amended  as  affected by the abandonment and vacation. The county recorder
  9        shall record acknowledgments including any supporting  documentation,  and
 10        enter a federally-granted right-of-way in the index as provided in section
 11        40-204A, Idaho Code.
 12        (k)  From  any  such  decision,  a  resident or property holder within the
 13        county or highway district system, including the state of Idaho or any  of
 14        its  subdivisions  or  any agency of the federal government, may appeal to
 15        the district court of the county in which the highway or public  right-of-
 16        way is located pursuant to section 40-208, Idaho Code.
 17        (2)  No highway or public right-of-way or parts thereof shall be abandoned
 18    and  vacated  so as to leave any real property adjoining the highway or public
 19    right-of-way without access to an established highway or public right-of-way.
 20        (3)  In the event of abandonment and vacation, rights-of-way or  easements
 21    may  be reserved for the continued use of existing sewer, gas, water, or simi-
 22    lar pipelines and appurtenances, or other underground facilities as defined in
 23    section 55-2202, Idaho Code, for ditches or canals and appurtenances, and  for
 24    electric, telephone and similar lines and appurtenances.
 25        (4)  A  highway abandoned and vacated under the provisions of this section
 26    may be reclassified as a public right-of-way.
 27        (5)  Until abandonment is authorized by the commissioners, public  use  of
 28    the  highway  or  public  right-of-way  may  not  be  restricted or impeded by
 29    encroachment or installation of any obstruction restricting public use, or  by
 30    the  installation  of signs or notices that might tend to restrict or prohibit
 31    public use. Any person violating the provisions of this  subsection  shall  be
 32    guilty of a misdemeanor.
 33        (6)  When a county or highway district desires the abandonment or vacation
 34    of  any  highway,  public  street or public right-of-way which was accepted as
 35    part of a platted subdivision said abandonment or  vacation  shall  be  accom-
 36    plished pursuant to the provisions of chapter 13, title 50, Idaho Code.
                                                                        
 37        SECTION  4.  That  Section 40-203A, Idaho Code, be, and the same is hereby
 38    amended to read as follows:
                                                                        
 39        40-203A.  VALIDATION OF COUNTY OR HIGHWAY DISTRICT SYSTEM HIGHWAY OR  PUB-
 40    LIC RIGHT-OF-WAY. (1) Any resident or property holder within a county or high-
 41    way  district system, including the state of Idaho or any of its subdivisions,
 42    or any agency of the federal government, may petition the board of  county  or
 43    highway district commissioners, whichever shall have jurisdiction of the high-
 44    way  system,  to  initiate  public proceedings to validate a highway or public
 45    right-of-way, including those which furnish public access to state and federal
 46    public lands and waters, provided that the petitioner shall pay  a  reasonable
 47    fee  as  determined by the commissioners to cover the cost of the proceedings,
 48    or the commissioners may  initiate validation proceedings on their own resolu-
 49    tion, if any of the following conditions exist:
 50        (a)  If, through omission or defect, doubt exists as to the  legal  estab-
 51        lishment or evidence of establishment of a highway or public right-of-way;
 52        (b)  If the location of the highway or public right-of-way cannot be accu-
 53        rately  determined  due  to  numerous alterations of the highway or public
                                                                        
                                           5
                                                                        
  1        right-of-way, a defective survey of the highway,  public  right-of-way  or
  2        adjacent  property,  or  loss or destruction of the original survey of the
  3        highways or public rights-of-way; or
  4        (c)  If the highway or public right-of-way as traveled and used  does  not
  5        generally  conform  to  the  location  of a highway or public right-of-way
  6        described on the official highway system map or in the public records.
  7        (2)  If proceedings for validation of a highway or public right-of-way are
  8    initiated, the commissioners shall follow the procedure set forth  in  section
  9    40-203, Idaho Code, and shall:
 10        (a)  If  the commissioners determine it is necessary, cause the highway or
 11        public right-of-way to be surveyed;
 12        (b)  Cause a report to be prepared, including consideration of any  survey
 13        and any other information required by the commissioners;
 14        (c)  Establish a hearing date on the proceedings for validation;
 15        (d)  Cause  notice of the proceedings to be provided in the same manner as
 16        for abandonment and vacation proceedings; and
 17        (e)  At the hearing, the  commissioners  shall  consider  all  information
 18        relating to the proceedings and shall accept testimony from persons having
 19        an interest in the proposed validation.
 20        (3)  Upon completion of the proceedings, the commissioners shall determine
 21    whether  validation  of  the  highway  or public right-of-way is in the public
 22    interest and shall enter an order validating the highway or  public  right-of-
 23    way as public or declaring it not to be public.
 24        (4)  From  any  such  decision,  any  resident or property holder within a
 25    county or highway district system, including the state of Idaho or any of  its
 26    subdivisions,  or any agency of the federal government, may appeal to the dis-
 27    trict court of the county in which  the  highway  or  public  right-of-way  is
 28    located pursuant to section 40-208, Idaho Code.
 29        (5)  When a board of commissioners validates a highway or public right-of-
 30    way,  it  shall cause the order validating the highway or public right-of-way,
 31    and if surveyed, cause the survey to be recorded in  the  county  records  and
 32    shall  amend the official highway system map of the respective county or high-
 33    way district.
 34        (6)  The commissioners shall proceed to determine and provide just compen-
 35    sation for the removal of any structure that, prior to creation of the highway
 36    or public right-of-way, encroached upon a highway or public right-of-way  that
 37    is  the  subject  of a validation proceeding, or if such is not practical, the
 38    commissioners may acquire property to alter the highway or public right-of-way
 39    being validated.
 40        (7)  This section does not apply to the validation of any highway,  public
 41    street  or  public  right-of-way  which is to be accepted as part of a platted
 42    subdivision pursuant to chapter 13, title 50, Idaho Code, nor does it apply to
 43    any federally-granted right-of-way unless it has been affirmatively recognized
 44    and made a part of the highway system.
                                                                        
 45        SECTION 5.  That Section 40-204A, Idaho Code, be, and the same  is  hereby
 46    amended to read as follows:
                                                                        
 47        40-204A.  FEDERALLY-GRANTED  LAND  RIGHTS-OF-WAY.  (1)  Acceptance  of the
 48    grant. The state recognizes that the act of construction  and  first  use  and
 49    actions of members of the public, or public officials, or both, which are con-
 50    sistent  with  local  customs, laws or decisions of the courts of the state of
 51    Idaho constitute the acceptance of the grant given to the public  for  federal
 52    land  rights-of-way,  and  that  once  acceptance of the grant has been estab-
 53    lished, the grant shall be for the perpetual term granted by the  congress  of
                                                                        
                                           6
                                                                        
  1    the United States.
  2        (2)  Exclusive  jurisdiction  of  county  commissioners. Federally-granted
  3    rights-of-way whether or not formally acknowledged and indexed as provided  in
  4    subsection  (10) of this section, fall under the exclusive jurisdiction of the
  5    county in which they are located, irrespective of any highway district serving
  6    the area, unless prior to the effective date  of  this  act,  they  have  been
  7    affirmatively  recognized  and  made  a part of a highway system. The board of
  8    county commissioners shall call upon the highway district commissioners in the
  9    county where a federally-granted right-of-way has been claimed, to participate
 10    in a determination proceeding, and further, may require the involvement of the
 11    commissioners as necessary in any subsequent management of a federally-granted
 12    right-of-way determined to exist within the jurisdiction of one  (1)  or  more
 13    highway districts in the county.
 14        (3)  Relinquishment  of  right.  The only method for the abandonment of to
 15    relinquish these rights-of-way shall be that of eminent domain proceedings  in
 16    which  the  taking of the public's right to access shall be justly compensated
 17    the procedure as provided in this section. Once relinquished, there  shall  be
 18    no cause for any subsequent action on or revival of the right-of-way by virtue
 19    of this section.
 20        (4)  Lack  of  use  or maintenance is not relinquishment. Neither the mere
 21    passage of time nor the frequency of use, which may include  nonuse,  nor  the
 22    extent,  or  even lack of, public maintenance shall be considered a justifica-
 23    tion for considering these rights-of-way to have been abandoned relinquished.
 24        (35)  Procedure by county commissioners to determine  status  and  regula-
 25    tion.
 26        (a)  Any member of the public, the state of Idaho and any of its political
 27        subdivisions, any agency of the federal government, or the board of county
 28        commissioners  itself may initiate proceedings to determine the status and
 29        regulation of any right-of-way, or group of rights-of-way, including parts
 30        thereof, within the county, claimed to be a federally-granted right-of-way
 31        by requesting the board to make a determination. No board of  county  com-
 32        missioners shall be authorized to charge a fee to the requesting party for
 33        the conduct of a public hearing; provided however, a fee may be charged if
 34        the  board  discovers  the  request for a determination was frivolous. Any
 35        party who requests a determination by the board shall provide all informa-
 36        tion available to the requester in support of the request to the board for
 37        its consideration in determining  the  existence  of  a  federally-granted
 38        right-of-way.
 39        (b)  Upon receipt of a request, the board of county commissioners shall:
 40             (i)   Establish  a  hearing  date  or  dates  to make a determination
 41             regarding the claimed federally-granted right-of-way;
 42             (ii)  Prepare a public notice stating its intention to hold a  public
 43             hearing  to  make said determination which shall be made available to
 44             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) work-
 46             ing days after any such request; and
 47             (iii) At least thirty (30) days prior to any hearing scheduled by the
 48             board, mail notice to owners of record of land abutting  the  claimed
 49             federally-granted  right-of-way  at  their  addresses as shown on the
 50             county assessor's tax rolls and shall publish notice of  the  hearing
 51             at least two (2) times if in a weekly newspaper or three (3) times if
 52             in  a  daily newspaper, the last notice to be published at least five
 53             (5) days and not more than twenty-one (21) days before the hearing.
 54        (c)  At the hearing, the board shall accept all  information  relating  to
 55        the  proceedings.  Any  person, including the state of Idaho or any of its
                                                                        
                                           7
                                                                        
  1        subdivisions, or any agency of the federal government, may appear and give
  2        testimony.
  3        (d)  A transcribable record of the hearing shall be made and maintained by
  4        the board of county commissioners.
  5        (e)  All of the said rights-of-way shall be shown by some form of documen-
  6        tation established by substantial and competent evidence to  have  existed
  7        been  created  at a time when the right-of-way crossed federal public land
  8        and in any event, prior to the withdrawal of the federal grant in  October
  9        21,  1976,  or  to  predate the removal of land through which they transit
 10        from the public domain for other public purposes. Documentation  may  take
 11        the form of a map, an affidavit, surveys, books or other historic and com-
 12        petent information.
 13        (f)    Within  sixty (60) days from receipt of the request which initiated
 14        the proceeding, unless for good cause it is shown additional time is  nec-
 15        essary,  the board shall make a determination whether or not the right-of-
 16        way is a federally-granted right-of-way. Such determination shall be writ-
 17        ten and shall be supported by findings of fact and conclusions of law.
 18        (g)  If the board of county commissioners determines that  a  right-of-way
 19        is a federally-granted right-of-way, it may, in order to protect community
 20        interests  and  the  interests  of private property owners affected by the
 21        right-of-way, place special conditions or restrictions on public access as
 22        appropriate.
 23        (h)  In order to accommodate both the public and private  property  owners
 24        in  the  vicinity of a federally-granted right-of-way, the board of county
 25        commissioners shall be authorized to relocate portions of the right-of-way
 26        within the boundaries of the  affected  property  through  agreement  with
 27        property owners. The relocated federally-granted right-of-way shall retain
 28        its status irrespective of any such relocation.
 29        (i)  If  the board determines that a federally-granted right-of-way termi-
 30        nates in private land, that segment contained entirely within private land
 31        is hereby relinquished and shall be recorded as such in  the  index  main-
 32        tained  by  the county recorder; provided however, that such segment shall
 33        not be relinquished if it provides access to publicly-owned lands,  recre-
 34        ational areas, facilities or waters.
 35        (6)  Judicial  review  of  determination by board of county commissioners.
 36    The determination of a federally-granted right-of-way is subject  to  judicial
 37    review  pursuant to the provisions of section 40-208, Idaho Code. No reviewing
 38    court shall be allowed to review the case de novo.
 39        (7)  Endowment lands. Pursuant to section 8, article IX, of the  constitu-
 40    tion of the state of Idaho, the state board of land commissioners is given the
 41    duty  to  provide for the location, protection, sale or rental of state endow-
 42    ment lands. Any federally-granted right-of-way determined by a board of county
 43    commissioners to exist on state endowment lands shall be managed by the  state
 44    board  of  land  commissioners,  subject  to  the  rights  declared  under the
 45    federally-granted right-of-way, but shall not be relinquished nor may its  use
 46    thereof  by  the public be prohibited or restricted without a hearing pursuant
 47    to this section by the appropriate board of county  commissioners.  The  state
 48    board  of land commissioners shall call upon the board of county commissioners
 49    in the county where the federally-granted right-of-way is situated for  advice
 50    and  recommendations  regarding  management of the federally-granted right-of-
 51    way. Within thirty (30) days of the initiation of a determination  proceeding,
 52    a  board  of county commissioners shall give written notice to the state board
 53    of land commissioners of any federally-granted right-of-way claimed  to  cross
 54    state endowment lands and shall give the state board of land commissioners the
 55    opportunity to participate in any proceedings regarding the determination of a
                                                                        
                                           8
                                                                        
  1    federally-granted right-of-way.
  2        (48)  No maintenance required. These rights-of-way shall not require main-
  3    tenance  for  the  passage  of  vehicular  traffic, nor shall any liability be
  4    incurred for injury or damage through a failure to maintain the access  or  to
  5    maintain  any  highway sign. These rights-of-way shall be traveled at the risk
  6    of the user and may be maintained by the public through usage by the public.
  7        (5)  Any member of the public, the state of Idaho and any of its political
  8    subdivisions, and any agency of the federal government may choose to seek val-
  9    idation of its rights under law to use granted rights-of-way either through  a
 10    process  set  forth  by the state of Idaho, through processes set forth by any
 11    federal agency or by proclamation of user rights granted under the  provisions
 12    of the original act, Revised Statute 2477.
 13        Persons seeking to have a federal land right-of-way, including those which
 14    furnish  public access to state and federal public lands and waters, validated
 15    as a highway or public right-of-way as part of a county  or  highway  official
 16    highway  system, shall follow the procedure outlined in section 40-203A, Idaho
 17    Code.
 18        (9)  Federal ownership status unchanged. Neither the granting of the orig-
 19    inal right-of-way nor any provision in this or any other state  act  shall  be
 20    construed as a relinquishment of either federal ownership or management of the
 21    surface estate of the property over which the right-of-way passes.
 22        (610) Acknowledgments  recorded.  Persons seeking acknowledgement acknowl-
 23    edgment of federally-granted land rights-of-way shall  file  with  the  county
 24    recorder the request for acknowledgement acknowledgment and for any supporting
 25    documentation.  The  county recorder shall record acknowledgements acknowledg-
 26    ments, including supporting documentation, and maintain an  appropriate  index
 27    of same.
 28        (11) Nonretroactive  clause.  Nothing in this section shall apply retroac-
 29    tively to permit revival of a federally-granted right-of-way that was lawfully
 30    abandoned.
                                                                        
 31        SECTION 6.  That Section 40-208, Idaho Code, be, and the  same  is  hereby
 32    amended to read as follows:
                                                                        
 33        40-208.  JUDICIAL  REVIEW.  (1) Any resident or property holder within the
 34    county or highway district system, including the state of Idaho or any of  its
 35    subdivisions,  or  any agency of the federal government, who is aggrieved by a
 36    final decision of a board of county or highway district  commissioners  in  an
 37    abandonment  and  vacation  or  validation  proceeding is entitled to judicial
 38    review under the provisions of this section. The decision of a board of county
 39    commissioners regarding the determination of a federally-granted  right-of-way
 40    pursuant to section 40-204A, Idaho Code, is subject to judicial review as pro-
 41    vided herein.
 42        (2)  Proceedings  for  review  are  instituted by filing a petition in the
 43    district  court of the county in which  the  commissioners  have  jurisdiction
 44    over  the  highway,  or  federally-granted right-of-way or public right-of-way
 45    within twenty-eight (28) days after the filing of the final  decision  of  the
 46    commissioners  or,  if a rehearing is requested, within twenty-eight (28) days
 47    after the decision thereon.
 48        (3)  The filing of the petition does not itself stay  enforcement  of  the
 49    commissioners' decision. The reviewing court may order a stay upon appropriate
 50    terms.
 51        (4)  Within  thirty (30) days after the service of the petition, or within
 52    further time allowed by the court, the commissioners  shall  transmit  to  the
 53    reviewing court the original, or a certified copy, of the entire record of the
                                                                        
                                           9
                                                                        
  1    proceeding  under review. By stipulation of all parties to the review proceed-
  2    ings, the record may be shortened. A party unreasonably refusing to  stipulate
  3    to  limit  the record may be ordered by the court to pay for additional costs.
  4    The court may require subsequent  corrections  to  the  record  and  may  also
  5    require or permit additions to the record.
  6        (5)  If, before the date set for hearing, application is made to the court
  7    for  leave to present additional information, and it is shown to the satisfac-
  8    tion of the court that the additional information is material and  that  there
  9    were  good reasons for failure to present it in the proceeding before the com-
 10    missioners, the court may order that the additional information shall be  pre-
 11    sented  to the commissioners upon conditions determined by the court. The com-
 12    missioners may modify their findings and decisions by reason of the additional
 13    information and shall file that information and any modifications,  new  find-
 14    ings, or decisions with the reviewing court.
 15        (6)  The  review  shall be conducted by the court without a jury and shall
 16    be confined to the record. In cases of  alleged  irregularities  in  procedure
 17    before  the commissioners, not shown in the record, proof thereon may be taken
 18    in the court. The court, upon request, shall hear oral  argument  and  receive
 19    written briefs.
 20        (7)  The  court  shall not substitute its judgment for that of the commis-
 21    sioners as to the weight of the information on questions of  fact.  The  court
 22    may  affirm  the  decision of the commissioners or remand the case for further
 23    proceedings. The court may reverse  or  modify  the  decision  if  substantial
 24    rights  of the appellant have been prejudiced because the commissioners' find-
 25    ings, inferences, conclusions or decisions are:
 26        (a)  In violation of constitutional or statutory provisions;
 27        (b)  In excess of the statutory authority of the commissioners;
 28        (c)  Made upon unlawful procedure;
 29        (d)  Affected by other error of law;
 30        (e)  Clearly erroneous in view of the reliable, probative and  substantial
 31        information on the whole record; or
 32        (f)  Arbitrary  or  capricious  or characterized by abuse of discretion or
 33        clearly unwarranted exercise of discretion.
                                                                        
 34        SECTION 7.  An emergency existing  therefor,  which  emergency  is  hereby
 35    declared to exist, this act shall be in full force and effect on and after its
 36    passage and approval.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                           RS 11819C3

The purpose of this bill is to establish a uniform procedure for
determining the existence and status of public rights-of-way
granted by the United States in the Mining Act of July 26, 1866. 
Such rights-of-way are commonly known as R.S. 2477 rights-of-way. 
This legislation will also provide a uniform procedure by which
such rights-of-way shall be relinquished or relocated and their
use regulated for the protection of the public's right of access
to and across public lands while protecting private property
rights.

                          FISCAL IMPACT

There is no fiscal impact to the General Fund.

Contact
Name: Rep. JoAn Wood 
Phone: (208) 332-1000




STATEMENT OF PURPOSE/FISCAL NOTE                   H 730