16 1 2 3 to section 603 of this Act, that fact shall not in itself constitute a reason to doubt the invalidity of such portion of such right-of-way. 4 "(d) APPEALS.--(1) Any elaimed right-of-way or portion 5 6 thereof with respect to which it is found, pursuant to subsection (e), that there is reason to doubt the validity, shall not be deemed to be invalid unless, within 30 days after 8 such finding the party claiming the right-of-way has filed with the Secretary of the Interior an appeal of such find10 ing, and the Secretary thereafter determines the right-of11 way to be valid. (2) Any party other than the party claiming 12 the right-of-way, may intervene in any appeal filed under 13 this paragraph in support of the finding of invalidity by 14 filing with the Secretary a notice of such intervention 15 within the period allowed for filing of the appeal. 16 "(1) (2) Any finding by the investigating officer with re17 gard to the validity or invalidity of a claimed right-of-way 18 or portion thereof valid shall become final unless within 19 30 days after such finding a notice of appeal of such finding 20 is filed with the Secretary of the Interior. 21 "(2) Any party other than the party claiming the right 22 of-way, may intervene in any appeal filed under this paragraph 23 in support of the finding of invalidity by filing with the 24 Secretary a notice of such intervention. within the period 25 allowed for filing of the appeal. 26 "(3) 2 Any decision by the Secretary with regard to an 17 1 appeal under this subsection shall be made after the party 2 claiming or contesting a right-of-way has been provided with 3 4 5 6 the evidence upon which the investigating officer's finding regarding its validity or invalidity was based and has been given an opportunity to respond, including an adjudicatory hearing on the record with respect to any disputed issues 7 of fact. 8 "(4) (A) Pending a final determination of validity with 9 respect to a claimed right-of-way that is subject to an ap10 peal under this subsection, the Federal land covered by 11 such claimed right-of-way shall be managed in accordance with 12 applicable law (including this Act) and management plans 13 as if such right-of-way did not exist, except that such 14 lands may continue to be used for lawful transportation, 15 access, and related purposes of the same nature, and to the 16 same extent as was properly permitted by the Secretary on 17 the date of enactment of this section. Any such continued 18 uses shall be subject to appropriate regulations to protect 19 the resources and values of the affected lands. 20 "(B) Upon a final administrative determination of invalidity 21 with respect to a claimed right-of-way subject to an appeal 22 under paragraph (3), Federal lands covered by such claimed 23 right-of-way shall be managed in accordance with applica24 ble law and management plans. 25 "(C) A determination by an investigating officer as 18 1 2 to the validity or invalidity of a claimed right-of-way may be appealed to the Secretary by any person, provided such 3 appeal is made no later than 30 days after the determination 4 of the investigating officer. Any person filing such an 5 appeal shall be afforded an adjudicatory hearing on the 6 7 record with regard to any disputed issue of fact. Any deci sion of the Secretary regarding such an appeal shall be 8 subject to judicial review. 9 "(5) Any decision by the Secretary pursuant to this 10 subsection shall be subject to judicial review under appli11 cable provisions of law, but nothing in this subsection shall 12 be construed as affording any right to seek or participate 13 in any judicial proceeding by any party not otherwise enti14 tled to seek or participate in such proceeding. 15 "(e) CHANGE IN USE.--Any change in the scope, 16 alignment, or character of use of a valid right-of-way es 17 tablished pursuant to Revised Statutes section 2477 shall 18 be subject to terms and conditions required by section 505 19 of this Act or other applicable law. 20 : (1) SAVINGS CLAUSE--Nothing in this section shall be 21 construed as increasing or diminishing the requirements of 22 any applicable law with respect to establishment, construction, 23 or maintenance of a highway for purposes of obtaining a valid 24 right-of-way pursuant to Revised Statutes section 2477 prior LEGISLATURE OF THE STATE OF IDAHO Fifty-second Legislature First Regular Session -- 1993 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 388 BY STATE AFFAIRS COMMITTEE AN ACT RELATING TO HIGHWAYS AND FEDERAL LAND RIGHTS OF WAY; EXPRESSING LEGISLATIVE Be It Enacted by the Legislature of the State of Idaho: SECTION 1. STATEMENT OF LEGISLATIVE INTENT. The State of Idaho recognizes that existing federal land rights of way are extremely important to all of Idaho's citizens. Two-thirds of Idaho's land is under control of the federal government and access to such federal lands is integral to public use. The Idaho State Legislature recognizes the necessity for establishing a procedure for identifying and confirming the existence of previously established federal rights of way, to protect those rights previously granted to and vested in, the citizens of Idaho. SECTION 2. same That Section 40-107, Idaho Code, be, and the amended to read as follows: 40-107. DEFINITIONS -- F. is hereby (1) "Facilities" mean tracks, pipes, mains, conduits, cables, wires, towers, poles, equipment and appliances. (2) "Family" means two (2) or more persons living together in the same dwelling unit who are related to each other by blood, marriage, adoption or legal guardianship. (3) "Farm operation" means any activity conducted primarily for the production of agricultural products or commodities, including timber, for sale and home use, and producing agricultural products or commodities in sufficient quantity to contribute materially to the operator's support. (4) "Feeder highway" means any highway which, in the opinion of the transportation board, is needed to create or facilitate access to a turnpike project upon which a toll is charged for transit. (5) "Federal land rights of way" mean rights of way on federal land within the context of Revised Statute 2477, codified as 43 United States Code 932, and other federal access grants and shall be considered to be any road, trail, access or way upon which construction has been carried out to the standard in which public rights of way were built within historic context. These rights of way may include, but not be limited to, horse paths, cattle trails, irrigation canals, waterways, ditches, pipelines or other means of water transmission and their attendant access for maintenance, wagon roads, Jeep trails, logging roads, homestead roads, mine to market roads and all other Ways. Exhibit #2 2 SECTION 3. That Chapter 2, Title 40, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 40-204A, Idaho Code, and to read as follows: 40-204A. FEDERAL LAND RIGHTS OF WAY. (1) The state recognizes that the act of construction and first use constitute the acceptance of the grant given the public for federal land rights of way, and that once acceptance of the grant has been established, the grant shall be for the perpetual term granted by the congress of the United States. to (2) The only method for the abandonment of these rights of way shall be that of eminent domain proceedings in which the taking of the public's right to access shall be justly compensated. Neither the mere passage of time nor the frequency of use shall be considered a justification for considering these rights of way to have been abandoned. (3) All of the said rights of way shall be shown by some form of documentation to have existed prior to the withdrawal of the federal grant in 1976 or to predate the removal of land through which they transit from the public domain for other public purposes. Documentation shall take the form of at least a map, and an affidavit. Surveys, books and other historic information may also be included. (4) These rights of way shall not require maintenance for the passage of vehicular traffic, nor shall any liability be incurred for injury or damage through a failure to maintain the access or to maintain any highway sign. These rights of way shall be traveled at the risk of the user and may be maintained by the public through usage by the public. (5) Any member of the public, the state of Idaho and any of its political subdivisions, and any agency of the federal government may choose to seek validation of its rights under law to use granted rights of way either through process set forth by the state of Idaho, through processes set forth by any federal agency or by proclamation of user rights granted under the provisions of the original act, Revised Statute 2477. These rights of way shall not be required to possess centerline surveys typical of publicly maintained roads, but shall be surveyed prior to being accepted into the maintained public highway system. Neither the granting of the original right of way nor any provision in this or any other state act shall be construed as a relinquishment of either federal ownership or management of the surface estate of the property over which the right of way passes. (6) Persons seeking acknowledgement of federal land rights of way shall file with the county recorder the request for acknowledgement and for any supporting documentation. The county recorder shall place the acknowledgement on the official county road system map. SECTION 4. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval. |