Amends existing law to revise provisions regarding rights-of-way.

LEGISLATURE OF THE STATE OF IDAHO Sixty-eighth Legislature Second Regular Session - 2026 IN THE SENATE SENATE BILL NO. 1287 BY TRANSPORTATION COMMITTEE AN ACT1 RELATING TO HIGHWAYS; AMENDING SECTION 40-202, IDAHO CODE, TO REVISE PRO-2 VISIONS REGARDING DESIGNATION OF HIGHWAYS AND PUBLIC RIGHTS-OF-WAY;3 AMENDING SECTION 40-203, IDAHO CODE, TO REVISE PROVISIONS REGARDING4 ABANDONMENT AND VACATION OF COUNTY AND HIGHWAY DISTRICT SYSTEM HIGH-5 WAYS OR PUBLIC RIGHTS-OF-WAY; AMENDING SECTION 40-203A, IDAHO CODE, TO6 REVISE PROVISIONS REGARDING VALIDATION OF COUNTY OR HIGHWAY DISTRICT7 SYSTEM HIGHWAY OR PUBLIC RIGHT-OF-WAY; AND DECLARING AN EMERGENCY AND8 PROVIDING AN EFFECTIVE DATE.9

Be It Enacted by the Legislature of the State of Idaho:10

SECTION 1. That Section 40-202, Idaho Code, be, and the same is hereby11 amended to read as follows:12 40-202. DESIGNATION OF HIGHWAYS AND PUBLIC RIGHTS-OF-WAY. (1) The13 initial selection of the county highway system and highway district system14 may be accomplished in the following manner:15 (a) The board of county or highway district commissioners shall cause a16 map to be prepared showing the general location of each highway and pub-17 lic right-of-way in its jurisdiction, and the commissioners shall cause18 notice to be given of intention to adopt the map as the official map of19 that system, and shall specify the time and place at which all inter-20 ested persons may be heard.21 (b) After the hearing, the commissioners shall adopt the map, with any22 changes or revisions considered by them to be advisable in the public23 interest, as the official map of the respective highway system.24 (2) If a county or highway district acquires an interest in real25 property for highway or public right-of-way purposes, the respective com-26 missioners shall:27 (a) Cause Convene a public hearing and cause any order or resolution28 enacted, and deed or other document establishing an interest in the29 property for their highway system purposes, to be recorded in the county30 records; or31 (b) Cause the official map of the county or highway district system to32 be amended as affected by the acceptance of the highway or public right-33 of-way. and record a survey including a legal description for each seg-34 ment acquired from privately owned lands; and35 (c) Demonstrate payment was made when the land acquired was from a pri-36 vately owned parcel.37 Provided, however, a county with highway jurisdiction or highway district38 may hold title to an interest in real property for public right-of-way pur-39 poses without incurring an obligation to construct or maintain a highway40 within the right-of-way until the county or highway district determines41 that the necessities of public travel justify opening a highway within the42

2 right-of-way. The lack of an opening shall not constitute an abandonment,1 and mere use by the public shall not constitute an opening of the public2 right-of-way.3 (3) Highways laid out, recorded and opened as described in subsection4 (2) of this section, by order of a board of commissioners, and all highways5 used for a period of five (5) years, provided they shall have been worked and6 kept up at the expense of the public, or located and recorded by order of a7 board of commissioners, are highways. If a highway created in accordance8 with the provisions of this subsection is not opened as described in subsec-9 tion (2) of this section, there shall be no duty to maintain that highway,10 nor shall there be any liability for any injury or damage for failure to main-11 tain it or any highway signs, until the highway is designated as a part of the12 county or highway district system and opened to public travel as a highway.13 (4) When a public right-of-way is created in accordance with the provi-14 sions of subsection (2) of this section, or section 40-203 or 40-203A, Idaho15 Code, there shall be no duty to maintain that such public right-of-way, nor16 shall there be any liability for any injury or damage for failure to maintain17 it or any highway signs.18 (5) Nothing in this section shall limit the power of any board of com-19 missioners to subsequently include or exclude any highway or public right-20 of-way from the county or highway district system.21 (6) By July 1, 2005, and at least every five (5) years thereafter, the22 board of county or highway district commissioners shall publish in map form23 and make readily available a map generated by the same entity showing the24 general location of all highways and public rights-of-way under its ju-25 risdiction. Any board of county or highway district commissioners may be26 granted an extension of time with approval of the legislature by adoption of27 a concurrent resolution.28 (7) Prior to designating a new highway or public right-of-way on the29 official map, the board of county or highway district commissioners shall30 confirm that no legal abandonment has occurred on the new highway or right-31 of-way to be added to the official map. In addition, the board of county or32 highway district commissioners shall have some basis indicating dedication,33 purchase, prescriptive use or other means for the creation of a highway and34 public right-of-way with evidentiary support.35 (8) The board of county or highway district commissioners shall give36 advance notice of hearing, by U.S. mail, to any landowner upon or within37 whose land the highway or public right-of-way is located whenever a highway38 or public right-of-way is proposed for inclusion on such map and the pub-39 lic status of such highway or public right-of-way is not already a matter40 of public record. The purpose of this official map is to put the public on41 notice of those highways and public rights-of-way that the board of county42 or highway district commissioners considers to be public. The inclusion or43 exclusion of a highway or public right-of-way from such a map does not, in it-44 self, constitute a legal determination of the public status of such highway45 or public right-of-way. Any person may challenge, at any time, the inclusion46 or exclusion of a highway or public right-of-way from such map by initiating47 proceedings as described in section 40-208(7), Idaho Code.48 (9) Nothing in this section or in any designation of the general loca-49 tion of a highway or public right-of-way shall authorize the public highway50

3 agency to assert or claim rights superior to or in conflict with any rights-1 of-way that resulted from the creation of a facility for the transmission of2 water which existed before the designation of the location of a highway or3 public right-of-way.4

SECTION 2. That Section 40-203, Idaho Code, be, and the same is hereby5 amended to read as follows:6 40-203. ABANDONMENT AND VACATION OF COUNTY AND HIGHWAY DISTRICT SYS-7 TEM HIGHWAYS OR PUBLIC RIGHTS-OF-WAY. (1) A board of county or highway dis-8 trict commissioners, whichever shall have jurisdiction of the highway sys-9 tem, shall use the following procedure to abandon and vacate any highway or10 public right-of-way in the county or highway district system including those11 which furnish public access to state and federal public lands and waters:12 (a) The commissioners may by resolution declare their intention to13 abandon and vacate any highway or public right-of-way or to reclassify a14 public highway as a public right-of-way, where doing so is in the public15 interest.16 (b) Any resident, or property holder, within a the county or highway17 district system, including the state of Idaho, any of its subdivisions,18 or any agency of the federal government, may petition the respective19 commissioners for abandonment and vacation of any highway or public20 right-of-way within their highway system. The petitioner shall pay a21 reasonable fee as determined by the commissioners to cover the cost of22 the proceedings.23 (c) The commissioners shall establish a hearing date or dates on the24 proposed abandonment and vacation.25 (d) The commissioners shall prepare a public notice stating their in-26 tention to hold a public hearing to consider the proposed abandonment27 and vacation of a highway or public right-of-way, which shall be made28 available to the public not later than thirty (30) days prior to any29 hearing and mailed to any person requesting a copy not more than three30 (3) working days after any such request.31 (e) At least thirty (30) days prior to any hearing scheduled by the com-32 missioners to consider abandonment and vacation of any highway or pub-33 lic right-of-way, the commissioners shall mail notice by United States34 mail to known owners and operators of an underground facility, as de-35 fined in section 55-2202, Idaho Code, that lies within the highway or36 public right-of-way.37 (f) At least thirty (30) days prior to any hearing scheduled by the38 commissioners to consider abandonment and vacation of any highway39 or public right-of-way, the commissioners shall mail notice to own-40 ers of record of land abutting the portion of the highway or public41 right-of-way proposed to be abandoned and vacated at their addresses42 as shown on the county assessor's tax rolls and shall publish notice of43 the hearing at least two (2) times if in a weekly newspaper or three (3)44 times if in a daily newspaper, the last notice to be published at least45 five (5) days and not more than twenty-one (21) days before the hearing.46 (g) At the hearing, the commissioners shall verify that the road was47 legally designated as set forth in section 40-202, Idaho Code, and ac-48 cept all information relating to the proceedings. Any person, includ-49

4 ing the state of Idaho or any of its subdivisions, or any agency of the1 federal government, may appear and give testimony for or against aban-2 donment.3 (h) After completion of the proceedings and consideration of all re-4 lated information, the commissioners shall decide whether the abandon-5 ment and vacation of the highway or public right-of-way is in the public6 interest of the highway jurisdiction affected by the abandonment or va-7 cation. The decision whether or not to abandon and vacate the highway or8 public right-of-way shall be written and shall be supported by findings9 of fact and conclusions of law.10 (i) If the commissioners determine that a highway or public right-of-11 way parcel to be abandoned and vacated in accordance with the provisions12 of this section has a fair market value of two thousand five hundred13 dollars ($2,500) or more, a charge may be imposed upon the acquiring14 entity, not in excess of the fair market value of the parcel, as a condi-15 tion of the abandonment and vacation; provided, however, no such charge16 shall be imposed on the landowner who originally dedicated such parcel17 to the public for use as a highway or public right-of-way; and provided18 further, that if the highway or public right-of-way was originally a19 federal land right-of-way, said highway or public right-of-way shall20 revert to a federal land right-of-way.21 (j) The commissioners shall cause any order or resolution to be22 recorded in the county records and the official map of the highway sys-23 tem to be amended as affected by the abandonment and vacation.24 (k) From any such decision, a resident or property holder within the25 county or highway district system, including the state of Idaho or any26 of its subdivisions, or any agency of the federal government, may ap-27 peal to the district court of the county in which the highway or public28 right-of-way is located pursuant to section 40-208, Idaho Code.29 (2) No highway or public right-of-way or parts thereof shall be aban-30 doned and vacated so as to leave any real property adjoining the highway31 or public right-of-way without access to an established highway or public32 right-of-way. The burden of proof shall be on the impacted property owner to33 establish this fact.34 (3) In the event of abandonment and vacation, rights-of-way or ease-35 ments shall be reserved for the continued use of existing sewer, gas, water,36 or similar pipelines and appurtenances, or other underground facilities as37 defined in section 55-2202, Idaho Code, for ditches or canals and appurte-38 nances, and for electric, telephone and similar lines and appurtenances.39 (4)(a) When a county or highway district is to consider the abandonment40 or vacation of any highway, public street or public right-of-way that41 was accepted as part of a recorded platted subdivision, such abandon-42 ment shall be accomplished pursuant to the provisions of this section.43 (b) When a county or highway district is to consider the abandonment or44 vacation of any highway, public street, or public right-of-way that was45 accepted as part of a platted subdivision that has never been improved46 or developed, such vacation or abandonment may be approved through47 the dedication of a new highway, public street, or public right-of-way48 without compensation as set forth in subsection (1)(i) of this section.49

5 (c) When a county is to consider the abandonment or vacation of any pri-1 vate right-of-way that was accepted as part of a recorded platted subdi-2 vision, said abandonment or vacation shall be accomplished pursuant to3 the provisions of chapter 13, title 50, Idaho Code.4 (5) In any proceeding under this section or section 40-203A, Idaho5 Code, or in any judicial proceeding determining the public status or width of6 a highway or public right-of-way, a highway or public right-of-way shall be7 deemed abandoned if the evidence shows:8 (a) That said highway or public right-of-way was created solely by9 a particular type of common law dedication, such as a dedication10 based upon a plat, survey, or other document that was documents not11 sufficiently recorded in the official records of an Idaho county;12 (b) That said highway or public right-of-way is not located on land13 owned by the United States or the state of Idaho nor on land entirely14 surrounded by land owned by the United States or the state of Idaho nor15 does it provide the only means of access to such public lands; and16 (c)(i) That said highway or public right-of-way has not been used17 by the public and has not been maintained at the expense of the pub-18 lic in at least three (3) years during the previous fifteen (15)19 years; or20 (ii) Said highway or right-of-way was never constructed and at21 least twenty (20) years have elapsed since the common law dedica-22 tion.23 (6) All other highways or public rights-of-way may be abandoned and va-24 cated only upon a formal determination by the commissioners pursuant to this25 section that retaining the highway or public right-of-way for use by the pub-26 lic is not in the public interest, and such other highways or public rights-27 of-way may be validated or judicially determined at any time notwithstanding28 any other provision of law. Provided that any abandonment under this section29 shall be subject to and limited by the provisions of subsections (2) and (3)30 of this section.31

SECTION 3. That Section 40-203A, Idaho Code, be, and the same is hereby32 amended to read as follows:33 40-203A. VALIDATION OF COUNTY OR HIGHWAY DISTRICT SYSTEM HIGHWAY OR34 PUBLIC RIGHT-OF-WAY. (1) Any resident or property holder within a the county35 or highway district system, including the state of Idaho or any of its subdi-36 visions, or any agency of the federal government, may petition the board of37 county or highway district commissioners, whichever shall have jurisdiction38 of the highway system, to initiate public proceedings to validate a highway39 or public right-of-way, including those which furnish public access to state40 and federal public lands and waters, provided that the petitioner shall pay41 a reasonable fee as determined by the commissioners to cover the cost of the42 proceedings, or the commissioners may initiate validation proceedings on43 their own resolution, if any of the following conditions exist:44 (a) If, through omission or defect, doubt exists as to the legal estab-45 lishment or evidence of establishment of a highway or public right-of-46 way;47 (b) If the location of the highway or public right-of-way cannot be ac-48 curately determined due to numerous alterations of the highway or pub-49

6 lic right-of-way, a defective survey of the highway, public right-of-1 way or adjacent property, or loss or destruction of the original survey2 of the highways or public rights-of-way; or3 (c) If the highway or public right-of-way as traveled and used does not4 generally conform to the location of a highway or public right-of-way5 described on the official highway system map or in the public records.6 (2) If proceedings for validation of a highway or public right-of-way7 are initiated, the commissioners shall follow the procedure set forth in8 section 40-203, Idaho Code, and shall:9 (a) If the commissioners determine it is necessary, cause the highway10 or public right-of-way to be surveyed;11 (b) Cause a report to be prepared, including verification that the12 highway or public right-of-way was legally designated as set forth in13 section 40-202, Idaho Code, and consideration of any survey and any14 other information required by the commissioners;15 (c) Establish a hearing date on the proceedings for validation;16 (d) Cause notice of the proceedings to be provided in the same manner as17 for abandonment and vacation proceedings; and18 (e) At the hearing, the commissioners shall consider all information19 relating to the proceedings and shall accept testimony from persons20 having an interest in the proposed validation.21 (3) Upon completion of the proceedings, the commissioners shall deter-22 mine with a reasonably detailed analysis supported by findings of fact and23 conclusion of law whether validation of the highway or public right-of-way24 is in the public interest and shall enter an order validating the highway or25 public right-of-way as public or declaring it not to be public.26 (4) From any such decision, any resident or property holder within a the27 county or highway district system, including the state of Idaho or, any of28 its subdivisions, or any agency of the federal government, may appeal to the29 district court of the county in which the highway or public right-of-way is30 located pursuant to section 40-208, Idaho Code.31 (5) When a board of commissioners validates a highway or public right-32 of-way, it shall cause the order validating the highway or public right-of-33 way, and if surveyed, cause the survey to be recorded in the county records34 and shall amend the official highway system map of the respective county or35 highway district.36 (6) The commissioners shall proceed to determine and provide just com-37 pensation for the removal of any structure that, prior to creation of the38 highway or public right-of-way, encroached upon a highway or public right-39 of-way that is the subject of a validation proceeding, or if such is not prac-40 tical, the commissioners may acquire property to alter the highway or public41 right-of-way being validated.42 (7) This section does not apply to the validation of any highway, public43 street or public right-of-way which is to be accepted as part of a platted44 subdivision pursuant to chapter 13, title 50, Idaho Code.45 (8) There shall be no duty to maintain or construct any highway or46 right-of-way on the part of a county or highway district for those highways47 or rights-of-way within the county or public right-of-way system. Absent48 evidence to the contrary, there shall be a presumption that the highway or49 right-of-way is valid.50

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SECTION 4. An emergency existing therefor, which emergency is hereby1 declared to exist, this act shall be in full force and effect on and after2 July 1, 2026.3