2003 Legislation
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HOUSE BILL NO. 375 – Federally-granted rights-of-way

HOUSE BILL NO. 375

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H0375........................................................by WAYS AND MEANS
FEDERALLY-GRANTED RIGHTS-OF-WAY - Amends existing law to provide a procedure
for a board of county commissioners to determine the status and location of a
federally-granted right-of-way.
                                                                        
03/19    House intro - 1st rdg - to printing
03/20    Rpt prt - to 2nd rdg
03/21    2nd rdg - to 3rd rdg
03/26    Ref'd to Transp

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 375
                                                                        
                                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  WITH AN EXCEPTION AND TO REQUIRE THE PARTICIPATION
 15        OF AFFECTED LOCAL HIGHWAY JURISDICTIONS IN A DETERMINATION PROCEEDING OF A
 16        CLAIMED FEDERALLY-GRANTED RIGHT-OF-WAY, TO DELETE REFERENCE TO ABANDONMENT
 17        OF SUCH RIGHTS-OF-WAY, TO CLARIFY LACK OF USE OR MAINTENANCE WITH  RESPECT
 18        TO  TAX-SUPPORTED  HIGHWAYS,  TO  PROVIDE  A PROCEDURE BY WHICH A BOARD OF
 19        COUNTY COMMISSIONERS SHALL DETERMINE THE STATUS, REGULATION  AND  LOCATION
 20        OF  A FEDERALLY-GRANTED RIGHT-OF-WAY, TO AUTHORIZE THE STATE BOARD OF LAND
 21        COMMISSIONERS TO MAKE AN INDEPENDENT DETERMINATION OF THE EXISTENCE  OF  A
 22        FEDERALLY-GRANTED  RIGHT-OF-WAY,  TO  PROVIDE  FOR JUDICIAL REVIEW, AND TO
 23        PROVIDE FOR MANAGEMENT OF A FEDERALLY-GRANTED RIGHT-OF-WAY ON STATE ENDOW-
 24        MENT LANDS, TO DELETE REDUNDANT LANGUAGE, TO CLARIFY THAT  FEDERAL  OWNER-
 25        SHIP OF THE SURFACE ESTATE OF PROPERTY OVER WHICH A RIGHT-OF-WAY PASSES IS
 26        NOT  AFFECTED  BY  THE  RIGHT-OF-WAY,  AND  TO MAKE TECHNICAL CORRECTIONS;
 27        AMENDING SECTION 40-208, IDAHO CODE, TO PROVIDE THAT THE DECISION  OF  THE
 28        STATE  BOARD  OF  LAND  COMMISSIONERS  OR  A BOARD OF COUNTY COMMISSIONERS
 29        REGARDING THE DETERMINATION OF A FEDERALLY-GRANTED  RIGHT-OF-WAY  PURSUANT
 30        TO  SECTION 40-204A, IDAHO CODE, IS SUBJECT TO JUDICIAL REVIEW AS PROVIDED
 31        THEREIN AND TO MAKE TECHNICAL CORRECTIONS; AND DECLARING AN EMERGENCY.
                                                                        
 32    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 33        SECTION 1.  That Section 40-107, Idaho Code, be, and the  same  is  hereby
 34    amended to read as follows:
                                                                        
 35        40-107.  DEFINITIONS  --  F. (1)  "Facilities" means tracks, pipes, mains,
 36    conduits, cables, wires, towers, poles, equipment and appliances.
 37        (2)  "Family" means two (2) or more persons living together  in  the  same
 38    dwelling  unit  who  are related to each other by blood, marriage, adoption or
 39    legal guardianship.
 40        (3)  "Farm operation" means any activity conducted primarily for the  pro-
 41    duction  of  agricultural  products or commodities, including timber, for sale
 42    and home use, and producing agricultural products or commodities in sufficient
 43    quantity to contribute materially to the operator's support.
                                                                        
                                           2
                                                                        
  1        (4)  "Feeder highway" means any highway  which,  in  the  opinion  of  the
  2    transportation  board,  is needed to create or facilitate access to a turnpike
  3    project upon which a toll is charged for transit.
  4        (5)  "Federally-granted land rights-of-way" means  rights-of-way  on  fed-
  5    eral  land  within  the context of Revised Statute 2477, codified as 43 United
  6    States Code 932, and other federal access grants and shall be considered to be
  7    any road, trail, access or way upon which construction has been carried out to
  8    the standard in which public rights-of-way were built within historic context.
  9    These rights-of-way may include, but not be limited to,  horse  paths,  cattle
 10    trails,  irrigation  canals,  waterways,  ditches, pipelines or other means of
 11    water transmission and their attendant access for  maintenance,  wagon  roads,
 12    jeep  trails,  logging  roads,  homestead  roads, mine to market roads and all
 13    other ways.
                                                                        
 14        SECTION 2.  That Section 40-117, Idaho Code, be, and the  same  is  hereby
 15    amended to read as follows:
                                                                        
 16        40-117.  DEFINITIONS  --  P.  (1)  "Person" includes every natural person,
 17    firm, fiduciary, copartnership, association, corporation, trustee, receiver or
 18    assignee for the benefit of creditors.
 19        (2)  "Place." (See "Maintain," section 40-114, Idaho Code)
 20        (3)  "Primary system" or "primary highway" means any portion of the  high-
 21    ways  of the state, as officially designated, or as may hereafter be so desig-
 22    nated, by the Idaho transportation board, and approved  by  the  secretary  of
 23    transportation, pursuant to the provisions of title 23, U.S. Code, "Highways."
 24        (4)  "Public  highway  agency"  means the state transportation department,
 25    any city, county, highway district or other political subdivision of the state
 26    with jurisdiction over public highway systems and public rights-of-way.
 27        (5)  "Public highways" means all highways open to public use in the state,
 28    whether maintained by the state or by any county, highway district,  city,  or
 29    other political subdivision. (Also see "Highways," section 40-109, Idaho Code)
 30        (6)  "Public  right-of-way"  means  a  right-of-way open to the public and
 31    under the jurisdiction of a public highway agency, where  the  public  highway
 32    agency  has  no  obligation to construct or maintain, but may expend funds for
 33    the maintenance of, said public right-of-way or post traffic signs for vehicu-
 34    lar traffic on said public right-of-way. In addition,  a  public  right-of-way
 35    includes  a  right-of-way  which  was originally intended for development as a
 36    highway and was accepted on behalf of the public by deed of purchase, fee sim-
 37    ple title, authorized easement, eminent domain, by plat, prescriptive use,  or
 38    abandonment of a highway pursuant to section 40-203, Idaho Code, but shall not
 39    include  federally-granted land rights-of-way, as provided in section 40-204A,
 40    Idaho Code, that resulted from the creation of a facility for the transmission
 41    of water. Public rights-of-way shall not be considered improved  highways  for
 42    the apportionment of funds from the highway distribution account.
 43        (7)  "Public  transportation services" means, but is not limited to, fixed
 44    transit routes, scheduled or unscheduled transit services  provided  by  motor
 45    vehicle,  bus, rail, van, aerial tramway and other modes of public conveyance;
 46    paratransit service for the elderly and disabled; shuttle and commuter service
 47    between cities, counties, health care facilities, employment  centers,  educa-
 48    tional institutions or park-and-ride locations; subscription van and car pool-
 49    ing  services;  transportation services unique to social service programs; and
 50    the management and administration thereof.
                                                                        
 51        SECTION 3.  That Section 40-203, Idaho Code, be, and the  same  is  hereby
 52    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
 52    federally-granted land rights-of-way, and that once acceptance  of  the  grant
 53    has been established, the grant shall be for the perpetual term granted by the
                                                                        
                                           6
                                                                        
  1    congress of the United States.
  2        (2)  The  only  method for the abandonment of these rights-of-way shall be
  3    that of eminent domain proceedings in which the taking of the  public's  right
  4    to access shall be justly compensated Exclusive jurisdiction of county commis-
  5    sioners.  Except  as  provided  in  subsection (5) of this section, federally-
  6    granted rights-of-way, whether or not formally  acknowledged  and  indexed  as
  7    provided in subsection (8) of this section, fall under the exclusive jurisdic-
  8    tion of the county in which they are located, irrespective of any highway dis-
  9    trict  serving  the area, unless prior to the effective date of this act, they
 10    have been affirmatively recognized and made a part of a  highway  system.  The
 11    board of county commissioners shall call upon the highway district commission-
 12    ers  in the county where a federally-granted right-of-way has been claimed, to
 13    participate in a  determination  proceeding,  and  further,  may  require  the
 14    involvement  of the commissioners as necessary in any subsequent management of
 15    a federally-granted right-of-way determined to exist within  the  jurisdiction
 16    of one (1) or more highway districts in the county.
 17        (3)  Lack  of  use or maintenance. The provisions of section 40-203, Idaho
 18    Code, and its predecessors do not apply  to  federally-granted  rights-of-way.
 19    Neither  the  mere passage of time nor the frequency of use, which may include
 20    nonuse, nor the extent, or even lack of, public maintenance shall  be  consid-
 21    ered  a  justification  for considering these rights-of-way to have been aban-
 22    doned relinquished.
 23        (34)  Procedure by county commissioners to  determine  status,  regulation
 24    and location.
 25        (a)  Any member of the public, the state of Idaho and any of its political
 26        subdivisions, any agency of the federal government, or the board of county
 27        commissioners  itself  may  initiate  proceedings to determine the status,
 28        regulation and location of any right-of-way, or  group  of  rights-of-way,
 29        including  parts  thereof,  within  the county, claimed to be a federally-
 30        granted right-of-way by requesting the board to make  a  determination  of
 31        the existence of a federally-granted right-of-way. 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 bearing on the
 55        establishment, pursuant to subsections (1) and (3) of this section, of the
                                                                        
                                           7
                                                                        
  1        federally-granted right-of-way. Any person, including the state  of  Idaho
  2        or  any  of its subdivisions, or any agency of the federal government, may
  3        appear and give testimony.
  4        (d)  A transcribable record of the hearing shall be made and maintained by
  5        the board of county commissioners.
  6        (e)  All of the said rights-of-way shall be shown by some form of documen-
  7        tation to have existed been created at a time when the right-of-way  cros-
  8        sed  federal  public land and in any event, prior to the withdrawal of the
  9        federal grant in October 21, 1976, or  to  predate  the  removal  of  land
 10        through  which  they  transit from the public domain for other public pur-
 11        poses. Documentation may take the form of a map,  an  affidavit,  surveys,
 12        books or other historic and competent information.
 13        (f)  Within  ninety  (90) 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)  Except as otherwise provided in subsection (5) of  this  section,  if
 19        the  board  of  county  commissioners  determines that a right-of-way is a
 20        federally-granted right-of-way, it may,  in  order  to  protect  community
 21        interests  and  the  interests  of private property owners affected by the
 22        right-of-way, place special conditions or restrictions on public access as
 23        appropriate.
 24        (h)  In order to accommodate both the public and private  property  owners
 25        in  the  vicinity of a federally-granted right-of-way, the board of county
 26        commissioners shall be authorized to relocate portions of the right-of-way
 27        within the boundaries of the  affected  property  through  agreement  with
 28        property  owners. Provided however, if a county road is located within one
 29        (1) mile parallel to the portion  of  the  federally-granted  right-of-way
 30        which  lies  within the boundaries of the private property, and the county
 31        road provides alternate access  to  the  same  public  land  as  does  the
 32        federally-granted  right-of-way within the boundaries of the private prop-
 33        erty, the county commissioners may relocate such portion of the federally-
 34        granted right-of-way that lies within the boundaries of the affected  pri-
 35        vate  property  to  the  county road. The county commissioners shall cause
 36        such action to be recorded with legal description in the index  maintained
 37        by the county recorder. The relocated federally-granted right-of-way shall
 38        retain its status irrespective of any such relocation.
 39        (i)  If  the board determines that a federally-granted right-of-way termi-
 40        nates in private land, that segment contained entirely within private land
 41        is hereby relinquished and shall be recorded as such in  the  index  main-
 42        tained by the county recorder.
 43        (5)  Endowment  lands. Pursuant to section 8, article IX, of the constitu-
 44    tion of the state of Idaho, the state board of land commissioners is given the
 45    duty to provide for the location, protection, sale or rental of  state  endow-
 46    ment lands.
 47        (a)  With  respect  to  any  claim  of a federally-granted right-of-way on
 48        state endowment lands, a board of county commissioners may  initiate  pro-
 49        ceedings  to determine whether such right-of-way exists. If a county board
 50        determines that a federally-granted right-of-way exists on state endowment
 51        land, the county board shall, within thirty  (30)  days,  forward  to  the
 52        state  board  of  land commissioners all information that the county board
 53        relied upon in making its determination, as well as the  precise  delinea-
 54        tion  of  such  right-of-way.  The state board of land commissioners shall
 55        then conduct an investigation as to whether such right-of-way exists, make
                                                                        
                                           8
                                                                        
  1        its own independent determination of the existence of  such  right-of-way,
  2        and  within  ninety  (90)  days,  report the results of its determination,
  3        along with all information relied upon by it in making its  determination,
  4        as  well  as  the  precise delineation of such right-of-way, to the county
  5        board.
  6        (b)  The state board of land commissioners shall make the final determina-
  7        tion following a public hearing in the affected county as to the existence
  8        of such right-of-way on endowment land. The county board  or  other  party
  9        aggrieved may seek judicial review of the determination of the state board
 10        of  land  commissioners  under  this subsection in accordance with section
 11        40-208, Idaho Code.
 12        (c)  The state board of land commissioners shall call upon  the  board  of
 13        county  commissioners  in the county where the federally-granted right-of-
 14        way is situated for advice and recommendations regarding management of the
 15        federally-granted right-of-way.
 16        (46)  No maintenance required. These federally-granted rights-of-way shall
 17    not require maintenance for the passage of vehicular traffic,  nor  shall  any
 18    liability  be  incurred for injury or damage through a failure to maintain the
 19    access or to maintain any highway right-of-way sign. These rights-of-way shall
 20    be traveled at the risk of the user  and  may  be  maintained  by  the  public
 21    through usage by the public.
 22        (5)  Any member of the public, the state of Idaho and any of its political
 23    subdivisions, and any agency of the federal government may choose to seek val-
 24    idation  of its rights under law to use granted rights-of-way either through a
 25    process set forth by the state of Idaho, through processes set  forth  by  any
 26    federal  agency or by proclamation of user rights granted under the provisions
 27    of the original act, Revised Statute 2477.
 28        Persons seeking to have a federal land right-of-way, including those which
 29    furnish public access to state and federal public lands and waters,  validated
 30    as  a  highway  or public right-of-way as part of a county or highway official
 31    highway system, shall follow the procedure outlined in section 40-203A,  Idaho
 32    Code.
 33        (7)  Federal ownership status unchanged. Neither the granting of the orig-
 34    inal  right-of-way  nor  any provision in this or any other state act shall be
 35    construed as a relinquishment of either federal ownership or management of the
 36    surface estate of the property over which the right-of-way passes.
 37        (68)  Acknowledgments recorded. Persons seeking  acknowledgement  acknowl-
 38    edgment  of  federally-granted  land  rights-of-way shall file with the county
 39    recorder the request for acknowledgement acknowledgment and for any supporting
 40    documentation. The county recorder shall record  acknowledgements  acknowledg-
 41    ments,  including  supporting documentation, and maintain an appropriate index
 42    of same.
                                                                        
 43        SECTION 6.  That Section 40-208, Idaho Code, be, and the  same  is  hereby
 44    amended to read as follows:
                                                                        
 45        40-208.  JUDICIAL  REVIEW.  (1) Any resident or property holder within the
 46    county or highway district system, including the state of Idaho or any of  its
 47    subdivisions,  or  any agency of the federal government, who is aggrieved by a
 48    final decision of a board of county or highway district  commissioners  in  an
 49    abandonment  and  vacation  or  validation  proceeding is entitled to judicial
 50    review under the provisions of this section. The decision of the  state  board
 51    of  land commissioners or a board of county commissioners regarding the deter-
 52    mination of a federally-granted  right-of-way  pursuant  to  section  40-204A,
 53    Idaho Code, is subject to judicial review as provided herein.
                                                                        
                                           9
                                                                        
  1        (2)  Proceedings  for  review  are  instituted by filing a petition in the
  2    district court of the county in which the commissioners have jurisdiction over
  3    the highway, or federally-granted right-of-way or public  right-of-way  within
  4    twenty-eight  (28)  days after the filing of the final decision of the commis-
  5    sioners or, if a rehearing is requested, within twenty-eight (28)  days  after
  6    the decision thereon.
  7        (3)  The  filing  of  the petition does not itself stay enforcement of the
  8    commissioners' decision. The reviewing court may order a stay upon appropriate
  9    terms.
 10        (4)  Within thirty (30) days after the service of the petition, or  within
 11    further  time  allowed  by  the court, the commissioners shall transmit to the
 12    reviewing court the original, or a certified copy, of the entire record of the
 13    proceeding under review. By stipulation of all parties to the review  proceed-
 14    ings,  the record may be shortened. A party unreasonably refusing to stipulate
 15    to limit the record may be ordered by the court to pay for  additional  costs.
 16    The  court  may  require  subsequent  corrections  to  the record and may also
 17    require or permit additions to the record.
 18        (5)  If, before the date set for hearing, application is made to the court
 19    for leave to present additional information, and it is shown to the  satisfac-
 20    tion  of  the court that the additional information is material and that there
 21    were good reasons for failure to present it in the proceeding before the  com-
 22    missioners,  the court may order that the additional information shall be pre-
 23    sented to the commissioners upon conditions determined by the court. The  com-
 24    missioners may modify their findings and decisions by reason of the additional
 25    information  and  shall file that information and any modifications, new find-
 26    ings, or decisions with the reviewing court.
 27        (6)  The review shall be conducted by the court without a jury  and  shall
 28    be  confined  to  the  record. In cases of alleged irregularities in procedure
 29    before the commissioners, not shown in the record, proof thereon may be  taken
 30    in  the  court.  The court, upon request, shall hear oral argument and receive
 31    written briefs.
 32        (7)  The court shall not substitute its judgment for that of  the  commis-
 33    sioners  as  to  the weight of the information on questions of fact. The court
 34    may affirm the decision  of the commissioners or remand the case  for  further
 35    proceedings.  The  court  may  reverse  or  modify the decision if substantial
 36    rights of the appellant have been prejudiced because the commissioners'  find-
 37    ings, inferences, conclusions or decisions are:
 38        (a)  In violation of constitutional or statutory provisions;
 39        (b)  In excess of the statutory authority of the commissioners;
 40        (c)  Made upon unlawful procedure;
 41        (d)  Affected by other error of law;
 42        (e)  Clearly  erroneous in view of the reliable, probative and substantial
 43        information on the whole record; or
 44        (f)  Arbitrary or capricious or characterized by abuse  of  discretion  or
 45        clearly unwarranted exercise of discretion.
                                                                        
 46        SECTION  7.  An  emergency  existing  therefor,  which emergency is hereby
 47    declared to exist, this act shall be in full force and effect on and after its
 48    passage and approval.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                            RS 13146C2
The U.S. Mining Act of July 26, 1866, granted federal rights-of-way to and
across public lands where there existed historic roads, trails, livestock
paths, irrigation canals, waterways, ditches, wagon roads, jeep trails,
logging roads, homestead roads, mine-to-market roads, pipelines or other means
of water transmission, and other forms of access.  Protecting public use of
those routes was a valid goal and the grant of 2477 rights-of-way was given to
the states for management.

Conflicts between public access property rights and private property rights
are not new, and they occur in a wide variety of circumstances.  One of the
most complex forms of this private/public debate focuses on the "R.S. 2477
right-of-way" issue, which has been a source of strife and contention for many
decades and has escalated in states burdened with large tracts of public lands
and an increasing population.  

Over the past 125 years dramatic changes in land ownership have occurred,
including transfer of much once-public land into private ownership.  The
change in ownership patterns in some cases created controversy between
public's federally guaranteed right to use these old roads, paths and trails
to gain access to public lands often necessitating travel across what now is
private property and adversely affects the rights of the owner of that private
property.  This bill offers management tools for county commissioners to use
in negotiating fairness to both private property and public access.

Given a century of change since the R.S. 2477 language was adopted, a new
structure now is needed to address both the public's right to continue using
certain of these informal avenues of transportation, and the rights of the
private property owner to protect his property against damage and abuse.

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.

This bill is intended to address these concerns in a way that protects both
private and public rights, thus ending more than a century of rancor and
controversy over the R.S. 2477/federal rights-of-way issue.
                                 
                                 
                          FISCAL IMPACT
There is no fiscal impact.


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




STATEMENT OF PURPOSE/FISCAL NOTE                    H 375