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Senate Bill 1258 — Public rights-of-way

Senate Bill 1258 — Public rights-of-way

Parrish Miller
February 1, 2024

Bill Description: Senate Bill 1258 would generally require a county or highway district to maintain public access to public lands and waters when the county or highway district legally abandons a road or other public right-of-way.

Rating: +1

NOTE: Senate Bill 1258 is similar to Senate Bill 1217, introduced earlier this session, but this iteration adds language regarding the validation procedures contained in section 40-203A, Idaho Code.

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

Senate Bill 1258 would amend Section 40-203, Idaho Code, which lays out the legal process by which a county or highway district may legally "abandon and vacate" a road or public right-of-way. The bill would require that the relevant commissioners "accept the presentation of evidence that the highway or public right-of-way being considered for vacation furnishes public access to state or federal public lands or waters."

The bill says, "If the existence of such access has not been previously legally adjudicated, the commissioners shall follow the validation procedures pursuant to section 40-203A, Idaho Code, before adjudicating that public access exists in any particular location."

The bill would also prohibit a county or highway district from abandoning a road or public right-of-way "that has been legally determined … to furnish public access to state or federal public lands or waters … unless an equivalent or better highway or public right-of-way is furnished as a replacement."

It goes on to say that the replacement shall be "a substantially similar highway or public right-of-way" and "provide for the same scope of use as the vacated right-of-way."

Finally, it says, "Such replacement right-of-way may be privately maintained but shall contain a perpetual public access to the state or federal public lands or waters." The bill also clarifies that "a replacement right-of-way shall not be secured through eminent domain or condemnation."

There is also a clarification that the provisions of this law "shall not be interpreted as creating public access where none otherwise exists on private property."

Cutting off public access to public lands by closing roads is a tactic embraced and encouraged by certain groups that would prefer to see public lands inaccessible and unused. Such behavior, however, runs contrary to Idaho's history and even our state constitution, which recognizes "the rights to hunt, fish and trap." The Idaho Constitution says these rights "shall forever be preserved for the people and managed through the laws, rules and proclamations that preserve the future of hunting, fishing and trapping."

Senate Bill 1258 embraces this principle and takes steps to preserve Idahoans’ access to their public lands. 


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