Senate language on municipal 'legal trails' raises litigation and takings questions

The conference committee reviewed a Senate amendment that would, depending on statutory interpretation, clarify or grant municipalities the authority to maintain so-called legal trailspublic rights of way owned by municipalities rather than rights granted by private easement.

Damian Leonard told members the change has prompted lengthy committee discussion and that litigation over the issue is already pending at the superior-court level. He said one landowner involved in the litigation has expressed concern that if the Legislature changes the statute, the court may dismiss the pending case as moot, forcing the parties to start new litigation over whether the statute itself effected a taking requiring compensation.

"If the answer is no, municipalities do not have the right to maintenance, then we would need to take legislative action to grant that right, but we would also, as part of that legislative action, have to consider and adopt some form of an eminent domain condemnation process," Leonard said. He added that statutes exist stating ongoing lawsuits are not affected by changes in legislation except to procedural matters, but that courts may nonetheless dismiss a declaratory-judgment action when the law changes.

Committee members acknowledged contrasting viewpoints: municipalities and municipal officials have argued for clear authority to maintain public trails, while some landowners maintain a contrary legal view and have ongoing suits. The conference committee did not resolve the question and left the Senate language on the table for further conference negotiation; members noted they expect a superior-court decision in the coming year that could affect legislative options.

The committee paused discussion at the end of its meeting time without taking final action on the trails provision.