Ariz. Admin. Code § 12-5-801

Current through Register Vol. 30, No. 45, November 8, 2024

Section R12-5-801 - Linear Right-of-Way

A. Rights of surface and subsurface lessees or permittees

1. The Department may grant a right-of-way without the consent of a surface or subsurface lessee.

2. When the applicant for a right-of-way and any existing right holder do not agree on the appraised value of damages to the right holder, the applicant for right-of-way may apply to the Department to appraise the value of any improvements that may be injured or damaged. The cost of any such appraisal shall be paid by the right-of-way applicant.

3. In cases where it is necessary to cut a fence belonging to a surface lessee or permittee or otherwise enter through a fence, the Department may require the installation of a standard cattle guard or other facilities by the right-of-way grantee as a condition to the granting of the right-of-way.

B. Termination of use; abandonment

1. When a right-of-way holder is no longer used by the grantee for which the right-of-way was granted, the right-of-way shall be terminated.

2. The Department may determine that a right-of-way has been abandoned or used for the purpose granted. In such case, the Department shall give the right-of-way grantee 30 days to show why a right-of-way should not be cancelled. I within 30 days the right-of-way grantee fails to respond, the Department may issue an order of cancellation.

C. Right-of-way provisions.

1. Term of right-of-way. The term of the right-of-way shall be determined by the Department and shall be set forth on the right-of-way contract.

2. Right-of-way subject to public auction. A right-of-way for exclusive use, perpetual in nature, or for a term exceeding 50 years (except a right-of-way for transportation purposes granted to governmental agencies of the state or political subdivisions and municipal corporations thereof) shall be sold at public auction as provided under the laws for sale of State Trust Land.

3. Possession and right of use of right-of-way area. The right is granted for the use of the area described in the right-of-way contract subject to any existing prior rights and subject to any rights the Department shall grant thereafter.

4. Provisions of the right-of-way. Every contract shall provide for:

a. Payment to the Department of the rental amount.

b. The right to install and construct necessary equipment and facilities with the right to remove the same within 90 days after expiration or termination of the right-of-way.

c. The obligation of the grantee to install and maintain fencing, gates, cattleguards, and other protective measures deemed necessary by the Department.

d. The obligation of the grantee to restore the surface of the land within the right-of-way to a reasonable condition as required by the Department.

e. The obligation of the grantee to indemnify, hold and save grantor harmless against all loss, damage, liability, expenses, costs and charges incident to or resulting in any way from the use, condition or occupation of the land.

f. A use provision.

g. The right of the grantee to assign the right-of-way.

h. The right of the grantee to terminate the right-of-way at any time during its term by giving the Department 30 days' notice of termination in writing, if the grantee is not delinquent in payments and has complied with all conditions on the date of termination.

5. A sub-grant of the right-of-way contract is prohibited.

6. Right-of-way renewal. Upon application to the Department, not less than 30 days, nor more than 1 year prior to the expiration of the right-of-way contract, the grantee of a right-of-way contract, shall have a preferred right to renew the right-of-way contract if the grantee is not delinquent in the payment of rental or of monies due the Department on the date of expiration of the contract. The renewal right-of-way contract shall commence on the day following the expiration of the former contract.

7. Bonds.

a. The Department may require the grantee to furnish bond, in a reasonable amount, to be fixed by the Commissioner, guaranteeing that the grantee will restore the surface of the land described in the contract to a reasonable condition, upon the termination of the right-of-way contract.

b. The Department may require the grantee to file with the Department a surety bond in such form, approved by, and for such amount determined by, the Department, which shall be conditioned upon prompt payment to the lessee of the surface, subsurface or otherwise of the State Trust Land covered by the right-of-way. A surety bond required under this subsection shall cover any loss to a lessee from damage or destruction to grasses, forage, crops, and improvements upon such lands which is caused by the construction or use of the right-of-way.

c. Assignment of any or all of the right-of-way contract will not relieve the assignor of his obligation as principal under the bond. Release of the assignor's obligation under bond may be affected through the posting of a replacement bond by the assignee and subsequent, approval by the Department and notification of the release by the Department in writing to the principal and surety.

d. The Department, in its discretion, may reduce or increase the principal amount of the bond.

e. Immediately after determination by the Department that full discharge of the conditions of the obligations under any bond has been affected, it will notify in writing the principal and surety held by the bond so that it may be formally terminated.

f. Surety on the bond shall have the right to cancel the bond and be relieved of further liability after the period of notice, by giving 30 days' notice to the Department of its desire to cancel.

g. Upon receipt of such notification, the Department will notify the grantee by certified mail within 14 days of the impending action by surety.

h. Failure by the grantee to post a replacement bond before the expiration of the 30 days mentioned above, shall constitute a default by the grantee and cause for cancellation of the right-of-way.

8. Reports of completed facilities and construction. A right-of-way grantee shall report any completed facilities and construction to the Department.

Ariz. Admin. Code § R12-5-801

Original rule, Art. VIII, Subchapter B, Ch. II (Supp. 76-4). Section R12-5-801 renumbered from Section R12-5-165 (Supp. 93-3). Amended by final rulemaking at 30 A.A.R. 2360, effective 8/19/2024.