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S1448......................................................by STATE AFFAIRS
PUBLIC RIGHTS-OF-WAY - Amends existing law to authorize the board of county
commissioners to relocate rights-of-way within the boundaries of the
affected property through agreements with property owners; to provide for
relocation if the right-of-way is found to exist within the boundaries of
private land; to provide for recognition to RS2477 offer applied to
rights-of-way; to delete language stating the only method for abandonment
for these rights-of-way shall be that of eminent domain; and to revise
judicial review procedures.
03/19 Senate intro - 1st rdg - to printing
03/20 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE SENATE
SENATE BILL NO. 1448
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO PUBLIC RIGHTS-OF-WAY; AMENDING SECTION 40-203A, IDAHO CODE, TO
3 AUTHORIZE THE BOARD OF COUNTY COMMISSIONERS TO RELOCATE RIGHTS-OF-WAY
4 WITHIN THE BOUNDARIES OF THE AFFECTED PROPERTY THROUGH AGREEMENTS WITH
5 PROPERTY OWNERS AND TO PROVIDE FOR RELOCATION IF THE RIGHT-OF-WAY IS FOUND
6 TO EXIST WITHIN THE BOUNDARIES OF PRIVATE LAND; AMENDING SECTION 40-204A,
7 IDAHO CODE, TO PROVIDE RECOGNITION TO REVISED STATUTE 2477 OFFER APPLIED
8 TO RIGHTS-OF-WAY AND TO DELETE LANGUAGE STATING THE ONLY METHOD FOR ABAN-
9 DONMENT OF THESE RIGHTS-OF-WAY SHALL BE THAT OF EMINENT DOMAIN; AND AMEND-
10 ING SECTION 40-208, IDAHO CODE, TO REVISE JUDICIAL REVIEW PROCEDURES AND
11 TO MAKE A TECHNICAL CORRECTION.
12 Be It Enacted by the Legislature of the State of Idaho:
13 SECTION 1. That Section 40-203A, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 40-203A. VALIDATION OF COUNTY OR HIGHWAY DISTRICT SYSTEM HIGHWAY OR PUB-
16 LIC RIGHT-OF-WAY. (1) Any resident or property holder within a county or high-
17 way district system, including the state of Idaho or any of its subdivisions,
18 or any agency of the federal government, may petition the board of county or
19 highway district commissioners, whichever shall have jurisdiction of the high-
20 way system, to initiate public proceedings to validate a highway or public
21 right-of-way, including those which furnish public access to state and federal
22 public lands and waters, provided that the petitioner shall pay a reasonable
23 fee as determined by the commissioners to cover the cost of the proceedings,
24 or the commissioners may initiate validation proceedings on their own resolu-
25 tion, if any of the following conditions exist:
26 (a) If, through omission or defect, doubt exists as to the legal estab-
27 lishment or evidence of establishment of a highway or public right-of-way;
28 (b) If the location of the highway or public right-of-way cannot be accu-
29 rately determined due to numerous alterations of the highway or public
30 right-of-way, a defective survey of the highway, public right-of-way or
31 adjacent property, or loss or destruction of the original survey of the
32 highways or public rights-of-way; or
33 (c) If the highway or public right-of-way as traveled and used does not
34 generally conform to the location of a highway or public right-of-way
35 described on the official highway system map or in the public records.
36 (2) If proceedings for validation of a highway or public right-of-way are
37 initiated, the commissioners shall follow the procedure set forth in section
38 40-203, Idaho Code, and shall:
39 (a) If the commissioners determine it is necessary, cause the highway or
40 public right-of-way to be surveyed;
41 (b) Cause a report to be prepared, including consideration of any survey
42 and any other information required by the commissioners;
43 (c) Establish a hearing date on the proceedings for validation;
2
1 (d) Cause notice of the proceedings to be provided in the same manner as
2 for abandonment and vacation proceedings; and
3 (e) At the hearing, the commissioners shall consider all information
4 relating to the proceedings and shall accept testimony from persons having
5 an interest in the proposed validation.
6 (3) Upon completion of the proceedings, the commissioners shall determine
7 whether validation of the highway or public right-of-way is in the public
8 interest and shall enter an order validating the highway or public right-of-
9 way as public or declaring it not to be public. In order to accommodate both
10 the public and private property owners in the vicinity of a public right-of-
11 way, the board of county commissioners shall be authorized to relocate all or
12 portions of the right-of-way within the boundaries of the affected property
13 through agreement with property owners. Provided however, if a right-of-way is
14 found to exist within the boundaries of private land it shall be relocated to
15 any alternative road if more than one (1) road exists for access to the same
16 public land if within a reasonable distance, or relocated to the nearest
17 established county road in the respective county, or cause to be constructed
18 at county expense a new road on a property line or section line, whichever is
19 the least intrusive and disruptive to the landowner, yet still providing
20 access to the public land.
21 (4) From any such decision, any resident or property holder within a
22 county or highway district system, including the state of Idaho or any of its
23 subdivisions, or any agency of the federal government, may appeal to the dis-
24 trict court of the county in which the highway or public right-of-way is
25 located pursuant to section 40-208, Idaho Code.
26 (5) When a board of commissioners validates a highway or public right-of-
27 way, it shall cause the order validating the highway or public right-of-way,
28 and if surveyed, cause the survey to be recorded in the county records and
29 shall amend the official highway system map of the respective county or high-
30 way district.
31 (6) The commissioners shall proceed to determine and provide just compen-
32 sation for the removal of any structure that, prior to creation of the highway
33 or public right-of-way, encroached upon a highway or public right-of-way that
34 is the subject of a validation proceeding, or if such is not practical, the
35 commissioners may acquire property to alter the highway or public right-of-way
36 being validated.
37 (7) This section does not apply to the validation of any highway, public
38 street or public right-of-way which is to be accepted as part of a platted
39 subdivision pursuant to chapter 13, title 50, Idaho Code.
40 SECTION 2. That Section 40-204A, Idaho Code, be, and the same is hereby
41 amended to read as follows:
42 40-204A. FEDERAL LAND RIGHTS-OF-WAY. (1) The state of Idaho recognizes
43 that the act of construction and first use constitute the acceptance of the
44 grant given to the public for federal land rights-of-way, and that once accep-
45 tance of the grant has been established, the grant shall be for the perpetual
46 term granted by the congress of the United States Revised Statute 2477 offer
47 applied to rights-of-way which, prior to 1976, existed across unreserved fed-
48 eral lands, and that the offer could be accepted either by affirmative conduct
49 by the board of county commissioners or the board of highway district commis-
50 sioners evidencing an intent to accept the offer, or by compliance with any
51 territorial or state statute or state common law regarding the establishment
52 of highways or public rights-of-way which was in effect at the time of the
53 claimed public right-of-way.
3
1 (2) The only method for the abandonment of these rights-of-way shall be
2 that of eminent domain proceedings in which the taking of the public's right
3 to access shall be justly compensated. Neither the mere passage of time nor
4 the frequency of use shall be considered a justification for considering these
5 rights-of-way to have been abandoned.
6 (3) All of the said rights-of-way shall be shown by some form of documen-
7 tation to have existed prior to the withdrawal of the federal grant in 1976 or
8 to predate the removal of land through which they transit from the public
9 domain for other public purposes. Documentation may take the form of a map, an
10 affidavit, surveys, books or other historic information.
11 (43) These rights-of-way shall not require maintenance for the passage of
12 vehicular traffic, nor shall any liability be incurred for injury or damage
13 through a failure to maintain the access or to maintain any highway sign.
14 These rights-of-way shall be traveled at the risk of the user and may be main-
15 tained by the public through usage by the public.
16 (54) Any member of the public, the state of Idaho and any of its politi-
17 cal subdivisions, and any agency of the federal government may choose to seek
18 validation of its rights under law to use granted rights-of-way either through
19 a process set forth by the state of Idaho, through processes set forth by any
20 federal agency or by proclamation of user rights granted under the provisions
21 of the original act, Revised Statute 2477.
22 Persons seeking to have a federal land right-of-way, including those which
23 furnish public access to state and federal public lands and waters, validated
24 as a highway or public right-of-way as part of a county or highway official
25 highway system, shall follow the procedure outlined in section 40-203A, Idaho
26 Code.
27 Neither the granting of the original right-of-way nor any provision in
28 this or any other state act shall be construed as a relinquishment of either
29 federal ownership or management of the surface estate of the property over
30 which the right-of-way passes.
31 (65) Persons seeking acknowledgement of federal land rights-of-way shall
32 file with the county recorder the request for acknowledgement and for any sup-
33 porting documentation. The county recorder shall record acknowledgements,
34 including supporting documentation, and maintain an appropriate index of same.
35 SECTION 3. That Section 40-208, Idaho Code, be, and the same is hereby
36 amended to read as follows:
37 40-208. JUDICIAL REVIEW. (1) Any resident or property holder within the
38 county or highway district system, including the state of Idaho or any of its
39 subdivisions, or any agency of the federal government, who is aggrieved by a
40 final decision of a board of county or highway district commissioners in an
41 abandonment and vacation or validation proceeding is entitled to judicial
42 review under the provisions of this section.
43 (2) Proceedings for review are instituted by filing a petition in the
44 district court of the county in which the commissioners have jurisdiction over
45 the highway or public right-of-way within twenty-eight (28) days after the
46 filing of the final decision of the commissioners or, if a rehearing is
47 requested, within twenty-eight (28) days 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
4
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 Not supported by clear and convincing evidence contained in
32 the whole record; or
33 (f) Arbitrary or capricious or characterized by abuse of discretion or
34 clearly unwarranted exercise of discretion.
STATEMENT OF PURPOSE
RS 14131
The purpose of this proposal is to allow continued public
access across public lands while protecting private
property rights. The legislation clarifies procedures for
establishing and abandoning a public R.S. 2477 rights-of-
way referencing applicable Idaho statutory or common law,
it provides a definition of RS 2477 roads, and it sets
forth a standard of judicial review required in a district
court proceeding regarding any alleged RS 2477 road.
FISCAL IMPACT
No fiscal impact to the general fund.
Contact
Name: Senator Brad Little
Phone: (208) 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE S 1448