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H0844.....................................................by WAYS AND MEANS
FEDERALLY-GRANTED RIGHTS-OF-WAY - Adds to existing law relating to roads
and rights-of-way to grant ordinance authority to a board of county
commissioners to establish a process and conditions for the purpose of
determining the status, regulation and location of federally-granted
rights-of-way asserted to exist within the jurisdiction of the county; to
provide exclusive jurisdiction of county commissioners with an exception;
to provide a procedure; to provide for recording a determination; to
provide for judicial review; to provide for duties and procedures regarding
physical barriers and blocked access; to authorize the state board of land
commissioners to make an independent determination of the existence of a
federally-granted right-of-way on state endowment lands; to provide for
criminal and civil trespass; to define "federally-granted right-of-way"; to
provide for reporting to the Legislature; and to provide funding.
03/19 House intro - 1st rdg - to printing
Rpt prt - to Loc Gov
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 844
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO ROADS AND RIGHTS-OF-WAY; AMENDING CHAPTER 2, TITLE 40, IDAHO CODE,
3 BY THE ADDITION OF A NEW SECTION 40-204B, IDAHO CODE, TO GRANT ORDINANCE
4 AUTHORITY TO A BOARD OF COUNTY COMMISSIONERS TO ESTABLISH A PROCESS AND
5 CONDITIONS FOR THE PURPOSE OF DETERMINING THE STATUS, REGULATION AND LOCA-
6 TION OF FEDERALLY-GRANTED RIGHTS-OF-WAY ASSERTED TO EXIST WITHIN THE
7 JURISDICTION OF THE COUNTY, TO PROVIDE EXCLUSIVE JURISDICTION OF COUNTY
8 COMMISSIONERS WITH AN EXCEPTION, TO PROVIDE A PROCEDURE, TO PROVIDE FOR
9 RECORDING A DETERMINATION, TO PROVIDE FOR JUDICIAL REVIEW, TO PROVIDE
10 DUTIES AND PROCEDURES REGARDING PHYSICAL BARRIERS AND BLOCKED ACCESS, TO
11 AUTHORIZE THE STATE BOARD OF LAND COMMISSIONERS TO MAKE AN INDEPENDENT
12 DETERMINATION OF THE EXISTENCE OF A FEDERALLY-GRANTED RIGHT-OF-WAY ON
13 STATE ENDOWMENT LANDS, TO PROVIDE FOR CRIMINAL AND CIVIL TRESPASS, TO
14 DEFINE "FEDERALLY-GRANTED RIGHT-OF-WAY," TO PROVIDE FOR REPORTING TO THE
15 LEGISLATURE AND TO PROVIDE FUNDING; PROVIDING A SUNSET CLAUSE AND PROVID-
16 ING FOR EFFECT OF AN ORDINANCE ADOPTED UNDER THE PROVISIONS OF THIS SEC-
17 TION; AND DECLARING AN EMERGENCY.
18 Be It Enacted by the Legislature of the State of Idaho:
19 SECTION 1. That Chapter 2, Title 40, Idaho Code, be, and the same is
20 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
21 ignated as Section 40-204B, Idaho Code, and to read as follows:
22 40-204B. ORDINANCE AUTHORITY GRANTED TO BOARD OF COUNTY COMMISSIONERS --
23 PROCESS AND CONDITIONS ESTABLISHED -- REPORTING REQUIRED -- FUNDING. The pres-
24 ervation of public access to public lands and inholdings as granted under fed-
25 eral law being declared a necessary public duty, the legislature of the state
26 of Idaho hereby declares that the board of county commissioners of any county
27 with a population of eight thousand (8,000) or less as determined by the 2000
28 census, may adopt an ordinance as provided herein, for the purpose of deter-
29 mining the status, regulation and location of federally-granted rights-of-way
30 asserted to exist within the jurisdiction of the county. Any ordinance adopted
31 as authorized herein shall adhere to the process and conditions established as
32 follows:
33 (1) Exclusive jurisdiction of county commissioners. Except as provided in
34 subsection (6) of this section, federally-granted rights-of-way, whether or
35 not formally acknowledged and indexed as provided in subsection (3) of this
36 section, fall under the exclusive jurisdiction of the county in which they are
37 located, irrespective of any highway district serving the area, unless prior
38 to the effective date of this act, they have been affirmatively recognized and
39 made a part of a highway system. The board of county commissioners shall call
40 upon the highway district commissioners in the county where a federally-
41 granted right-of-way has been asserted, to participate in a determination pro-
42 ceeding, and further, may require the involvement of the commissioners as nec-
43 essary in any subsequent management of a federally-granted right-of-way deter-
2
1 mined to exist within the jurisdiction of one (1) or more highway districts in
2 the county.
3 (2) Procedure by county commissioners to determine status, regulation and
4 location.
5 (a) Any member of the public, the state of Idaho and any of its political
6 subdivisions, any agency of the federal government, or the board of county
7 commissioners itself may initiate proceedings to determine the status,
8 regulation and location of any right-of-way, or group of rights-of-way,
9 including parts thereof, within the county, asserted to be a federally-
10 granted right-of-way by requesting the board to make a determination of
11 the existence of a federally-granted right-of-way. No board of county com-
12 missioners shall be authorized to charge a fee to the requesting party for
13 the conduct of a public hearing; provided however, a fee may be charged if
14 the board discovers the request for a determination was frivolous. Any
15 party who requests a determination by the board shall provide all informa-
16 tion available to the requester in support of the request to the board for
17 its consideration in determining the existence of a federally-granted
18 right-of-way.
19 (b) Upon receipt of a request, the board of county commissioners shall:
20 (i) Establish a hearing date or dates to make a determination
21 regarding the asserted federally-granted right-of-way;
22 (ii) Prepare a public notice stating its intention to hold a public
23 hearing to make said determination which shall be made available to
24 the public not later than thirty (30) days prior to any hearing and
25 mailed to any person requesting a copy not more than three (3) work-
26 ing days after any such request; and
27 (iii) At least thirty (30) days prior to any hearing scheduled by the
28 board, mail notice to owners of record of land abutting the asserted
29 federally-granted right-of-way at their addresses as shown on the
30 county assessor's tax rolls and shall publish notice of the hearing
31 at least two (2) times if in a weekly newspaper or three (3) times if
32 in a daily newspaper, the last notice to be published at least five
33 (5) days and not more than twenty-one (21) days before the hearing.
34 (c) At the hearing, the board shall accept all information bearing on the
35 establishment, pursuant to subsection (2)(e) of this section, of the
36 federally-granted right-of-way. Any person, including the state of Idaho
37 or any of its subdivisions, or any agency of the federal government, may
38 appear and give testimony.
39 (d) A transcribable record of the hearing shall be made and maintained by
40 the board of county commissioners.
41 (e) All of the said rights-of-way shall be shown to have been created at
42 a time when the right-of-way crossed federal public land and in any event,
43 prior to October 21, 1976, or to predate the removal of land through which
44 they transit from the public domain for other public purposes. Documenta-
45 tion may take the form of a map, an affidavit, surveys, books or other
46 historic and competent information. The state recognizes that the first
47 use and actions of members of the public, or public officials, or both,
48 which are consistent with local customs, laws or decisions of the courts
49 of the state of Idaho constitute the acceptance of the grant given to the
50 public for federally-granted rights-of-way, and that once acceptance of
51 the grant has been established, the grant shall be for the perpetual term
52 granted by the congress of the United States. The provisions of section
53 40-203, Idaho Code, and its predecessors do not apply to federally-granted
54 rights-of-way. Neither the mere passage of time nor the frequency of use,
55 which may include nonuse, nor the extent, or even lack of, public mainte-
3
1 nance shall be considered a justification for considering these rights-of-
2 way to have been relinquished.
3 (f) Within ninety (90) days from receipt of the request which initiated
4 the proceeding, unless the board finds, for good cause, that additional
5 time is necessary, the board shall make a determination as to whether a
6 federally-granted right-of-way exists within the meaning of the definition
7 of a federally-granted right-of-way as provided in subsection (8) of this
8 section. Such determination shall be written and shall be supported by
9 findings of fact and conclusions of law.
10 (g) Except as otherwise provided in subsection (6) of this section, if
11 the board of county commissioners determines that a right-of-way is a
12 federally-granted right-of-way, it may, in order to protect community
13 interests and the interests of private property owners affected by the
14 right-of-way, place special conditions or restrictions on public access as
15 appropriate.
16 (h) In order to accommodate both the public and private property owners
17 in the vicinity of a federally-granted right-of-way, the board of county
18 commissioners shall be authorized to relocate portions of the right-of-way
19 within the boundaries of the affected property through agreement with
20 property owners. Provided however, if a county road is located within a
21 reasonable distance to the portion of the federally-granted right-of-way
22 which lies within the boundaries of the affected private property, and the
23 county road provides reasonable alternative access to or through the same
24 lands as does the federally-granted right-of-way and the owner of the
25 affected private property so requests, the county commissioners may relo-
26 cate such portion of the federally-granted right-of-way which lies within
27 the boundaries of the affected private property to the county road. Such
28 relocation shall not be made without the written and recorded consent of
29 the owner or owners of the properties through which the relocated portion
30 of the right-of-way must pass to connect to the county road. The county
31 commissioners shall cause such action to be recorded with legal descrip-
32 tion in the index maintained by the county recorder. The relocated
33 federally-granted right-of-way shall retain its status irrespective of any
34 such relocation.
35 (i) If the board determines that a federally-granted right-of-way termi-
36 nates in private land, that segment contained entirely within private land
37 is hereby relinquished and shall be recorded as such in the index main-
38 tained by the county recorder.
39 (3) Determination recorded. If the board determines a federally-granted
40 right-of-way exists, the board shall cause such determination to be recorded
41 in the county records and the official map of the highway system to be amended
42 as affected by the determination. The county recorder shall record acknowledg-
43 ments including any supporting documentation, and enter a federally-granted
44 right-of-way in the index as provided in section 40-204A, Idaho Code.
45 (4) Judicial review. The decision of the state board of land commission-
46 ers or a board of county commissioners regarding the determination of a
47 federally-granted right-of-way pursuant to the provisions of this section is
48 subject to judicial review as provided in section 40-208, Idaho Code.
49 (5) Physical barriers and blocked access. There shall be no placement of
50 a physical barrier by a public agency or private landowner that blocks access
51 to or through public lands or a private inholding such that it creates a lack
52 of use or denies use, until a determination has been made by the county com-
53 missioners as provided in this section. If any barrier exists on the effective
54 date of the enactment of a county ordinance as authorized by the provisions of
55 this section, the county commissioners shall conduct a hearing as provided
4
1 herein, to determine if a federally-granted right-of-way is involved. No phys-
2 ical barrier shall be deemed to be a relinquishment of a federally-granted
3 right-of-way. The failure of the county commissioners to conduct such a hear-
4 ing where such a barrier exists as of the effective date of the enactment of a
5 county ordinance as authorized by the provisions of this section, shall not
6 be deemed a relinquishment of any federally-granted right-of-way which may
7 exist and such failure may be rectified at any time by the holding of a hear-
8 ing at the request of any person or on the commissioners' own initiative.
9 (6) Endowment lands. Pursuant to section 8, article IX, of the constitu-
10 tion of the state of Idaho, the state board of land commissioners is given the
11 duty to provide for the location, protection, sale or rental of state endow-
12 ment lands.
13 (a) With respect to any assertion of a federally-granted right-of-way on
14 state endowment lands, a board of county commissioners may initiate pro-
15 ceedings to determine whether such right-of-way exists. If a county board
16 determines that a federally-granted right-of-way exists on state endowment
17 land, the county board shall, within thirty (30) days, forward to the
18 state board of land commissioners all information that the county board
19 relied upon in making its determination, as well as the precise delinea-
20 tion of such right-of-way. The state board of land commissioners shall
21 then conduct an investigation as to whether such right-of-way exists, make
22 its own independent determination of the existence of such right-of-way,
23 and within ninety (90) days, report the results of its determination,
24 along with all information relied upon by it in making its determination,
25 as well as the precise delineation of such right-of-way, to the board of
26 county commissioners.
27 (b) The state board of land commissioners shall make the final determina-
28 tion following a public hearing in the affected county as to the existence
29 of such right-of-way on endowment land. The county board or other party
30 aggrieved may seek judicial review of the determination of the state board
31 of land commissioners under this subsection in accordance with section
32 40-208, Idaho Code.
33 (c) The state board of land commissioners shall call upon the board of
34 county commissioners in the county where the federally-granted right-of-
35 way is situated for advice and recommendations regarding management of the
36 federally-granted right-of-way.
37 (7) Trespass. Any person or entity who interferes with the right to use a
38 federally-granted right-of-way, or any person who leaves a right-of-way and
39 enters onto the private property through which a right-of-way passes, or acts
40 in a manner inconsistent with the purpose of a right-of-way which passes
41 through private property, may be subject to either or both a criminal or civil
42 trespass action pursuant to the provisions of chapter 70, title 18, Idaho
43 Code, or chapter 2, title 6, Idaho Code. Provided however, that an owner, fam-
44 ily member, agent of the owner, or any person authorized by the owner of pri-
45 vate land over which a federally-granted right-of-way may exist, which has not
46 been determined to exist under the provisions of this section or as otherwise
47 provided by law, who interferes with the right to pass shall not be subject to
48 civil or criminal action if, as soon as is reasonable and practicable after
49 blocking an apparent road or right-of-way, such person or the owner of private
50 property brings the matter to the attention of the commissioners of the county
51 in which the private land is located and requests a determination under this
52 section. If such determination is sought, until a determination is made that
53 such a right-of-way exists, the owner of the property and his agent, family or
54 other person authorized by the owner, may continue to prevent or prohibit use
55 of the alleged right-of-way without being subject to legal action.
5
1 (8) Definition. For the purposes of this section, "federally-granted
2 rights-of-way" means rights-of-way on federal land within the context of
3 Revised Statute 2477, codified as 43 United States Code 932, and shall be con-
4 sidered to be any road, trail, access or way upon which construction has been
5 carried out to the standard in which public rights-of-way were built within
6 historic context. These rights-of-way may include, but are not limited to,
7 horse paths, cattle trails, wagon roads, jeep trails, logging roads, homestead
8 roads, mine to market roads and all other ways. Nothing shall in any way
9 affect the use or existence of rights-of-way granted under other provisions of
10 federal law, including rights-of-way granted for irrigation canals, laterals,
11 ditches, pipelines or other means of water transmission and their attendant
12 access for maintenance.
13 (9) Reporting requirements. The legislature hereby directs any county
14 which adopts an ordinance under the provisions of this section to submit a
15 report to the president pro tempore of the senate and to the speaker of the
16 house of representatives not less than once in every twelve (12) month period
17 after the effective date of adoption of such county ordinance. The report
18 shall include:
19 (a) An enumeration of the number of assertions submitted to the county
20 for a determination;
21 (b) The classifications of persons or entities requesting a determination
22 and the purpose for which it was requested;
23 (c) The number of assertions recorded in the county records as a result
24 of the process;
25 (d) A description of special conditions that were placed on the regula-
26 tion or location of successful assertions;
27 (e) The number and results of assertions that were referred to the state
28 board of land commissioners pursuant to subsection (6) of this section;
29 (f) Any known criminal or civil trespass actions occurring subsequent to
30 a successful assertion of a federally-granted right-of-way under the pro-
31 visions of this section;
32 (g) An analysis of the strengths and weaknesses regarding implementation
33 of the process and conditions required by the provisions of this section;
34 and
35 (h) Any other information deemed pertinent by the board of county commis-
36 sioners.
37 (10) Funding. There is hereby appropriated to the Idaho transportation
38 department one hundred fifty thousand dollars ($150,000) from the constitu-
39 tional defense council fund to provide financial assistance to those counties
40 which adopt an ordinance pursuant to this section and incur additional
41 expenses in implementing the provisions of the ordinance. The Idaho transpor-
42 tation department is hereby authorized to receive moneys from the constitu-
43 tional defense council fund and to allocate the moneys to those eligible
44 boards of county commissioners who request financial assistance.
45 SECTION 2. (1) The provisions of Section 1 of this act shall be null,
46 void and of no force and effect on and after July 1, 2007.
47 (2) Any ordinance adopted by a board of county commissioners under the
48 provisions of this act from the effective date of this act through June 30,
49 2007, shall continue in effect until such time as the board of county commis-
50 sioners repeals such ordinance.
51 SECTION 3. An emergency existing therefor, which emergency is hereby
52 declared to exist, this act shall be in full force and effect on and after its
53 passage and approval.
STATEMENT OF PURPOSE
RS 14287
This legislation provides for a 2477 pilot project allowing
counties under 8000 populations to pass an ordinance instituting
a procedure for decision and documentation on Federally granted
2477 rights-of-way within their counties.
FISCAL IMPACT
No fiscal impact.
Contact
Name: Rep. JoAn Wood
Phone: (208) 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H 844