AGO 97048.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97048. DATE: September 16, 1997SUBJECT: Legality of Leasing State Right of Way Space Above Interstate 80 for Development of an Archway REQUESTED BY: Allan L. Abbott State Engineer/Director of Department of RoadsWRITTEN BY: Don Stenberg, Attorney General Steve Grasz, Deputy Attorney General You have requested an Attorney General's Opinion "as to the legality of the State of Nebraska Department of Roads permitting . . . [an] archway to be constructed in the airspace above Interstate 80." Background The Great Platte River Road Memorial Foundation has requested that the State of Nebraska Department of Roads permit construction of an archway in the airspace above the Interstate 80 right-of-way near Kearney. In 1973, an opinion from former Attorney General Clarence Meyer concluded the legality of a similar proposed project over Interstate 80 was "very doubtful" and that "the State may not lease or permit for use a part of the highway right-of-way for the construction of the Pioneer Monument, as proposed." 1973-74 Rep. Att'y Gen. 8, 11 (Jan. 22, 1973). This opinion will examine current Nebraska statutes governing state right-of-way, and will reexamine the constitutional issue addressed in the 1973 opinion. Analysis Nebraska law prohibits physical encroachments and structures within the state's right-of-way, except by written consent: "The rights-of-way acquired by the department shall be held inviolate for state highway and departmental purposes and no physical or functional encroachments, structures, or uses shall be permitted within such right-of-way limits, except by written consent of the department." Neb. Rev. Stat. Ann. § 39-1359 (Michie 1995). Nebraska law also authorizes the Department of Roads to lease, rent, or permit for use any area or land acquired for highway purposes: The Department of Roads, subject to the approval of the Governor, and the United States Department of Transportation if such department has a financial interest, is authorized to lease, rent, or permit for use, any area, or land and the buildings thereon, which area or land was acquired for highway purposes. The Director-State Engineer, for the department, and in the name of the State of Nebraska, may execute all leases, permits, and other instruments necessary to accomplish the foregoing. Such instruments may contain...