House Transportation Committee weighs legal-trail maintenance language amid litigation risk

On May 9, 2025, the House Transportation Committee heard from legislative counsel about language in the conference version of the transportation bill that would explicitly grant towns the right to maintain so-called “legal trails,” and how that language could affect an ongoing court case over who holds maintenance rights for those trails.

The committee was briefed on three options under consideration in conference: leave the Senate language as written, remove the language entirely, or keep the language but delay its effective date (options discussed included 12, 18 or 24 months). The counsel said each choice carries legal trade-offs for the pending litigation and for municipalities that maintain trails.

“For the record, I’m Damien Leonard from the Office of Legislative Council,” said Damien Leonard, legislative counsel assigned to transportation issues. Leonard told the committee that if a landowner prevails in the current litigation, the Senate language “would be granting maintenance rights to the town. And so that would actually, in effect, be taking a property right from landowners,” which could give rise to inverse-condemnation claims seeking compensation.

Leonard explained the two-step risk: a court could find that landowners hold a maintenance-related property right; if the legislature then inserted express town maintenance rights into statute, municipalities could face lawsuits to recover compensation for those rights. He said that the current case is a declaratory-judgment action asking the court to declare what the law provided after the 1986 recodification of Title 19, and that changing the statute while the case is pending risks having the case dismissed as moot, which could force a new round of litigation and years of delay.

Tucker Anderson, municipal law specialist with Legislative Council, told the committee that the proposed statutory change is “all prospective, not retrospective,” and that adding clear intent language stating that changes are meant to clarify an ambiguity would be a prudent way to proceed. “Adding intent language that reflects that these are prospective changes intended to clarify an ambiguity in the law is likely a very good and wise idea,” Anderson said.

Both counsel emphasized that costs are unknown. Leonard said he could not estimate the value of a separate maintenance right and that potential compensation amounts, litigation costs and possible attorney-fee awards were outside his ability to quantify.

Committee members asked procedural and substantive questions about how legal trails originated and how maintenance and public-access rules apply. Leonard summarized that many legal trails trace to former town highways and generally retain the original right-of-way width (three rods, historically), but he cautioned that the litigation focuses narrowly on whether the right to maintain was unintentionally omitted during the Title 19 recodification in 1986. Representative Brent asked about posting and whether a landowner could restrict access; counsel replied that a public right of way generally cannot be posted closed and that gates may be used only with municipal authorization.

Counsel outlined practical consequences for communities: leaving the Senate language in place could give towns clearer statutory authority to maintain trails, reducing uncertainty for municipal crews and volunteer groups that perform trail upkeep; but if a court later finds that the right originally belonged to landowners, the statute could create a compensable taking. Removing the language would avoid the immediate statutory-taking risk but would leave towns and trail users with ongoing uncertainty while the declaratory-judgment case proceeds.

They also urged the committee to consider adding an express statement of legislative intent and later statutory cleanup in the eminent-domain provisions in Title 19, noting that the 1986 recodification separated legal trails from town highways but may not have fully aligned eminent-domain language with that separation.

No motion or formal vote was recorded during the briefing. Committee members were left to weigh the legal risks, the practical clarity that an express maintenance grant would provide, and the possibility that delayed effective dates or explicit intent language could balance those concerns.

The committee will continue conference work on the transportation bill; if members retain or revise the maintenance language, they must also consider whether to include an express eminent-domain or condemnation procedure and whether to add prospective-intent language. Counsel emphasized that compensation amounts and litigation timelines remain unknown and urged members to consider those uncertainties when choosing an approach.