School and Institutional Trust Lands, Administration

Section R850-40-250

Determination of the Status of Temporary Easements and Rights-of-Entry

Notice of Proposed Rule

(Amendment)

DAR File No.: 32931
Filed: 09/01/2009 05:39:03 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The proposed amendment clarifies that the agency may use the rule process for extinguishing the statutory easement created by Section 72-5-203, outside of the sale context.

Summary of the rule or change:

The proposed amendment clarifies that the agency may use the rule process for extinguishing the statutory easement outside of the sale context and allows any responsible party to apply to make the statutory temporary easement permanent. Alternately, the agency may self-start the process by notifying local government, etc., in accordance with the existing rule. The amendment primarily deletes three references to land sales as a basis for elimination of the statutory easement.

State statutory or constitutional authorization for this rule:

• Section 53C-1-302
• Subsection 53C-2-201(1)(a)
• Section 53C-4-203

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state as a result of this proposed amendment because the process for extinguishing statutory easements is already in place. The amendment is simply removing the limitation of the rule applying only to sale parcels.

local governments:

There are no anticipated costs or savings to local government as a result of the proposed amendment because the process for extinguishing statutory easements is already in place.

small businesses:

There are no anticipated costs or savings to small businesses as a result of the proposed amendment. Since the process for extinguishing statutory easements is already in place, the cost for a small business using the process would not increase or diminish.

persons other than small businesses, businesses, or local governmental entities:

There are no anticipated costs or savings to persons other than small businesses, businesses, or local government entities as a result of the proposed amendment. Because the process for extinguishing statutory easements is already in place, any person using the process would not encounter any additional costs or savings.

Compliance costs for affected persons:

There should not be any additional compliance costs for affected persons. The process for extinguishing statutory easements is already in place and any costs involved for participating in the process are already established and in use.

Comments by the department head on the fiscal impact the rule may have on businesses:

The intent of this rule is to broaden the applicability of the existing rule to management instances, beyond sale of land, where an entity will be notified of their opportunity to perfect an easement if they believe they satisfy a 1992 legislative grant. Since the 1992 grant already required compensation for granting an easement, the proposed modification has no fiscal impact on businesses.

Kevin S. Carter, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

School and Institutional Trust Lands
Administration
675 E 500 S
SALT LAKE CITY, UT 84102-2818

Direct questions regarding this rule to:

• John Andrews at the above address, by phone at 801-538-5180, by FAX at 801-538-5118, or by Internet E-mail at jandrews@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2009

This rule may become effective on:

10/22/2009

Authorized by:

Kevin Carter, Director

R850. School and Institutional Trust Lands, Administration.

R850-40. Easements.

R850-40-250. Determination of the Status of Temporary Easements and Rights-of-Entry.

1. In order to determine the existence and continuation of any temporary easements or rights-of-entry granted pursuant to Section 72-5-203 on a specific parcel of trust land (the subject property), the agency may undertake the notification process set forth in R850-40-250(2). This evaluation [shall]does not adjudicate the status of any highway crossing the subject property that may have been established pursuant to any federal statute, such as R.S. 2477 . Highways established in accordance with the requirements of federal law, including R.S. 2477, prior to the state taking title to the subject property are recognized as valid existing rights.

2. In order to determine the existence of a[permissive] statutory temporary easement or right-of-entry on the subject property, the agency shall give notice to responsible authorities, as defined in Subsection 72-5-202(1). This notice [will]is intended to provide information to any responsible authority wishing to assert[ing] a temporary easement or right-of-entry on the process used to file an application to make such temporary easement or right-of-entry permanent (the "application") The application must contain a description of the facts which lead the applicant to believe that a statutory temporary easement or right-of-entry exists on the subject property, and other information that may be required by the agency to verify the assertion. Notice shall be provided as follows:

(a) Certified notice shall be mailed by the agency to the Attorney General and the executive body of the county in which the subject property is located. This notice shall include the legal description of the subject property and a map showing its location. The executive body of the county shall have 90 days from the date of the notice within which to submit an application.

(b) Notice to other responsible authorities who may have an interest in the subject property shall be given through publication at least once a week for three consecutive weeks in one or more newspapers of general circulation in the county where the subject property is located. In addition to the legal description of the subject property ,[being considered for sale,] the advertisement shall put responsible authorities on notice that the agency may take action extinguishing the temporary easement or right-of-entry .[upon sale of the subject property.] Other responsible authorities shall have 90 days from the first date of publication within which to submit the application.

3. Upon the receipt of an application to convert a temporary easement or right-of-entry into a n authorized[permanent property] easement or right-of-entry, the agency shall evaluate the request pursuant to the fiduciary responsibilities of the agency. [A decision on whether or not to approve the application shall be made at least 30 days prior to a sale of the subject property. ]Prior to the agency approving or rejecting an application, if any, the agency shall review the supporting documentation submitted by the applicant. The agency shall consider material submitted by any responsible authority pursuant to the applicant's appropriate statutory authority. If no application is received after notice is given pursuant to R850-40-250(2), or if an application to make the temporary easement or right-of-entry permanent is not approved, [the ] any statutory temporary easement or right-of-entry on the subject property shall automatically be extinguished. The agency will not sell trust lands for at least 30 days after a final decision to disapprove an application to make a statutory temporary easement or right-of-entry permanent.

KEY: natural resources, management, surveys, administrative procedures

Date of Enactment or Last Substantive Amendment: [ November 21, 2007 ] October 22, 2009

Notice of Continuation: June 27, 2007

Authorizing, and Implemented or Interpreted Law: 53C-1-302; 53C-2-201(1)(a); 53C-4-203