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Eye on Boise: Jordan calls for Utah-style prescriptive road law; Little opposes it

In this June 28, 2018 photo, Democratic gubernatorial candidate Paulette Jordan greets attendees during the Idaho District 18 Democrats Campaign Kickoff BBQ in Boise, Idaho. (Otto Kitsinger / AP)
In this June 28, 2018 photo, Democratic gubernatorial candidate Paulette Jordan greets attendees during the Idaho District 18 Democrats Campaign Kickoff BBQ in Boise, Idaho. (Otto Kitsinger / AP)

Paulette Jordan, the Democratic candidate for governor, is calling for Idaho to enact a law similar to a longstanding one in Utah that makes any road that’s been used by the public for 10 years officially a public road – whether or not private landowners object.

Brad Little, the Republican candidate and Idaho’s current lieutenant governor, opposes such a move.

“In Idaho, there are already rules and law in place, similar to Utah’s law, which allow opportunities for public access through private property,” Little’s campaign manager, Zach Hauge, said Friday. “Utah’s law has been in place for over 100 years, and Lt. Governor Little fears that enacting this specific law in Idaho might have the unintended effect of Idahoans having less access.”

Hauge said there are “nine different ways” for a road to become public in Idaho.

Jordan made her proposal last week after news that two Texas brothers who have bought up large tracts of land in Idaho have gated off a popular forest road north of Boise, just before the start of fall hunting season.

“Since Idaho’s leadership has failed to offer any solutions, Ms. Jordan is supporting a prescriptive roads statute for Idaho,” Jordan’s campaign said in a news release. “This statute will provide that a road crossing private property becomes a public right-of-way if it has been used by the public continuously for at least 10 years. A similar statute has been on the state of Utah’s books since the 1880s.”

Jordan said, “Idahoans know what true leadership is, and right now it’s about standing up to wealthy elites who mean to close off access to our public lands.”

According to the Givens Pursley 2018 Road Law Handbook, which covers “Road Creation and Abandonment Law In Idaho,” Idaho’s first road creation statute was enacted in 1864; in 1893, Idaho enacted a law saying that roads become public if they’ve been used by the public for five years, and “worked and kept up at the expense of the public.”

Utah’s law, by contrast, has no public road-maintenance requirement.

“If for any 10-year period, a road was used by the public in Utah, the road becomes a public road,” said Brent Bateman, director of the Utah Office of the Property Rights Ombudsman, a state agency.

There have been several changes to Utah’s law since a series of state Supreme Court cases in 2008, all addressing how a landowner can “interrupt” that continuous public use, thereby undoing the public nature of the road. Those methods include installing a barricade across the road. But Bateman said that only applies during the first 10 years of public use. If the road’s already been used by the public for 10 years, “It doesn’t undo it from being a public road.”

“It is a very old law,” Bateman said, that’s been on the books in Utah in some form “since the early days of the state of Utah.”

Billionaire Texas brothers Dan and Farris Wilks put up padlocked gates and “No Trespassing” signs blocking a Forest Service road near Bogus Basin in the Boise National Forest that’s popular with hunters, ATV riders, motorcyclists and bicyclists, the AP reported last week. A forest spokeswoman said the agency has reached out to the brothers and hopes to reach an agreement on access.

Christopher Meyer, author of the Givens Pursley manual, said if Idaho were to change its law, it likely wouldn’t be retroactive – so it might not address something like the current Wilks situation.

New higher ed funding formula

Legislative budget writers last week got an overview of the new “outcomes-based funding” model that’s being developed for higher education in Idaho. Matt Freeman, head of the office of the state Board of Education, told the Joint Finance-Appropriations Committee, “Our current funding formula for higher education is 29 years old.”

It revolves around something called the Enrollment Workload Adjustment, Freeman said, which “pays for the growth in student credit hours.” That was developed originally, he said, because “we needed to increase enrollment in our institutions,” and fund the resulting new classrooms and instructors. But a weakness to that approach, he said, is, “The state is funding students’ credit hour growth regardless of whether a student ever graduates or earns a degree.”

Idaho’s state Ed Board has been working for three years on a new formula, Freeman said, based on the idea “that we should be paying for what we value”: students graduating and becoming valuable members of the state’s workforce.

“Not only are we missing the mark by paying for credit hours,” he said, but the “EWA formula … has actually been used to extract base funding from institutions.” When one Idaho college or university has less enrollment growth than another, it actually loses funding. “This suggests to me the formula is no longer working as it was intended. We need to pay for what we value.”

The state board will present lawmakers in January with a three-year plan. The first year calls for a $16 million state funding increase to be funneled through the new formula – in place of basically all other college or university budget increases or program expansions. “The board is going all-in on outcomes based funding,” Freeman said. “There are no other line items. We’re going without a net.”

The formula would provide payoffs to higher education institutions based on the number of students who graduate with degrees or certificates. It also, on a weighted basis, would provide extra boosts for students who complete studies in “high impact” and high-need fields, such as STEM fields; for at-risk students who complete degrees or certificates; and for students graduating on time, including earning a bachelor’s degree in four years. The formula would apply to all levels of higher education in Idaho: colleges and universities, community colleges, and career-technical education.

It also would phase in a program to put a portion of each institution’s funding “at risk” if it doesn’t meet outcomes-based goals, Freeman said, by rolling that portion of the institution’s funding into the formula.

Rep. Wendy Horman, R-Idaho Falls, compared the process to the complex task an interim committee that she co-chairs is involved with in revamping Idaho’s public school distribution formula. “The details will be put under a microscope,” Horman said, “but that’s good government.”

GOP bus tour planned

Idaho Republican candidates will join on a campaign bus tour of the state starting Oct. 17, the Idaho Republican Party has announced. The tour will begin with a breakfast at the Basque Center in Boise, then hit stops throughout the Treasure Valley that day, in North Idaho the next two days, then back down into southern and eastern Idaho through Oct. 27. Local and statewide candidates will join portions of the tour; the schedule is online at

Betsy Z. Russell is the Boise bureau chief and state Capitol reporter for the Idaho Press.

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