The state laws that govern motorized roads on federal lands

37-931. Claims of right-of-way under revised statute 2477

A. This state, on behalf of itself and its political subdivisions, asserts and claims rights-of-way across public lands under section 8 of the mining act of 1866, reenacted and recodified as Revised Statute 2477; 43 United States Code section 932, acquired from and after its effective date through October 21, 1976, the date of its repeal, by authority of the department of the interior and related agencies appropriations act, 1997, section 108, enacted by the omnibus consolidated appropriations act, 1997 (P.L. 104-208; 110 Stat. 3009). These rights-of-way across public lands may have been acquired in any manner authorized by the law of the United States, the Territory of Arizona or this state, including:

1. The use by this state or a political subdivision of this state with the intention of establishing a public highway over public lands.

2. The construction or maintenance of a public highway over public lands.

3. The inclusion of a legally described right-of-way across public lands in a state, county or municipal plat or map of public roads.

4. The expenditure of public monies on the highway.

5. The execution of a memorandum of understanding or other agreement with any agency of the United States government that recognizes the right or obligation of this state or a county, city or town of this state to widen or maintain a highway or a portion of a highway.

6. Any other affirmative act by this state or a county, city or town of this state, consistent with federal, territorial or state law, indicating acceptance of a right-of-way across public lands.

7. The use by the public for a period required by law.

B. This state does not recognize or consent, and has not consented, to the exchange, waiver or abandonment of any Revised Statute 2477 right-of-way across public lands unless by formal, written official action that was taken by the state, county or municipal agency or instrumentality that held the right-of-way across public lands and that was recorded in the office of the county recorder of the county in which the public lands are located. No officer, employee or agent of this state or a county, city or town of this state has or had authority to exchange, waive or abandon a Revised Statute 2477 right-of-way across public lands in violation of this subsection, and any such purported action was void when taken unless later ratified by official action in compliance with this subsection.

C. The failure to conduct mechanical maintenance of a Revised Statute 2477 right-of-way across public lands does not affect the status of the right-of-way across public lands as a highway for any purpose of Revised Statute 2477.

D. The omission of a Revised Statute 2477 right-of-way across public lands from any plat, description or map of public roads does not waive or constitute a failure to acquire a right-of-way across public lands under Revised Statute 2477.

E. For the purposes of this section:

1. The extent of a Revised Statute 2477 right-of-way across public lands is the dimension that is reasonable under the circumstance.

2. A Revised Statute 2477 right-of-way across public lands includes the right to:

(a) Widen the highway as necessary to accommodate increased public travel and traffic associated with all accepted uses.

(b) Change or modify the horizontal alignment or vertical profiles as required for public safety and contemporary design standards.

3. The public has the right to use a Revised Statute 2477 right-of-way across public lands to access public lands.

4. If privately owned land is completely surrounded by or adjacent to public lands, the landowner has the right to use a Revised Statute 2477 right-of-way across public lands to access that land.

5. A Revised Statute 2477 right-of-way across public lands shall be closed only by order of a court of competent jurisdiction or the proper completion of an administrative process established for the abandonment, maintenance, construction or vacation of a public right-of-way otherwise allowed by law.

F. This section does not affect the inclusion or exclusion of, or the obligation of maintaining, any highway, road, street or route in any system of state, county or municipal streets, roads or highways. The inclusion of any highway, road, street or route in the state, county or municipal system shall be solely in accordance with other law.

G. This section does not:

1. Apply to any Revised Statute 2477 right-of-way across private property.

2. Impair, modify or otherwise affect any private property rights in effect on July 3, 2015. Any claim, determination or identification of a right-of-way across public lands pursuant to this section does not establish prior rights for determining financial or legal responsibility for taking any private property rights, in whole or in part. All presumptions and interpretations of fact and law relating to a claim, determination or identification of a right-of-way across public lands pursuant to this section shall be in favor of preserving private property rights.

28-6701. Establishing, altering or abandoning local highway

A. The board of supervisors may establish, alter or abandon a highway in the county and other legal subdivisions and acquire real property for these purposes by purchase, donation, dedication, condemnation or other lawful means.

B. A highway in the county or any other legal subdivision may be established or altered by the county engineer’s recommendation or by presentation of a petition that is signed by ten or more resident taxpayers of the county to the board of supervisors or to the board of supervisors by the governing body of a legal subdivision, that requests that a highway be established or altered and that gives the highway’s beginning, end, general course and direction. The board of supervisors may either reject the recommendation or petition or act on the recommendation or petition as prescribed by this article.

C. The board of supervisors may abandon or vacate these highways by resolution as provided in chapter 20, article 8 of this title, except that, notwithstanding section 28-7211, at least sixty days before the resolution is effective pursuant to section 28-7213, the board of supervisors shall give written notice by certified mail to the owners of the land abutting the highway or portion of the highway to be abandoned or vacated. The board of supervisors shall not resolve to abandon or vacate a highway unless a majority of the owners of the land abutting the highway or portion of the highway approve of the action to abandon or vacate the highway.

D. The county engineer’s recommendation process to establish or alter a highway as described in subsection B of this section does not apply to the abandonment of a road that was granted under Revised Statute 2477 (43 United States Code section 932) that was enacted by the United States Congress in 1866.

11-251.16. Federal patent easements; county abandonment; exception

A. A county, at the request of a property owner, may abandon a federal patent easement established by the small tract act of 1938 that the county determines, after notifying and obtaining the consent of all affected utilities, is not being used by the public or is no longer necessary.

B. At least sixty days before the consideration of an abandonment resolution, the board of supervisors shall give written notice of the abandonment proposal and the date and time of its consideration by certified mail at the address shown in the records of the county assessor to the owners of the land abutting the easement to be abandoned. The notice shall inform recipients of the opportunity and deadline to object in writing or in person on the date of the board’s scheduled consideration of the abandonment proposal. The board of supervisors shall not resolve to abandon an easement unless a majority of the owners of the land abutting the easement approves the action. An owner who does not object in writing to the abandonment proposal on or before the date of the board’s scheduled consideration of the proposal or in person on the date of the board’s scheduled consideration of the proposal shall be deemed to have consented to the abandonment proposal. The board shall post a copy of the notice at or in the immediate vicinity of the proposed abandonment.

C. This section does not apply to the abandonment of a roadway that was granted under Revised Statute 2477 (43 United States Code section 932) that was enacted by the United States Congress in 1866.