Senate committee weighs moving ahead on S.4 to clarify trail maintenance amid pending takings litigation

The Senate Transportation Committee debated whether to advance S.4, a bill that would clarify municipal authority to maintain public trails, with legislative counsel warning the measure could both reassure towns and expose them to takings claims depending on how pending litigation is resolved.

Damien Leonard, counsel for the Office of Legislative Council, told the panel that advancing S.4 now would “signal continued support” for municipalities and could provide them “more certainty concerning future maintenance.” He also warned that the same language could create “a false sense of reassurance” if a court later finds municipalities did not previously hold that maintenance right, exposing towns and the state to potential liability for compensation and litigation costs.

The bill’s supporters, including Sen. White, pushed back that delaying the bill would leave towns in active uncertainty and could lead municipalities to reduce or stop maintenance this spring and summer. Sen. White said constituents — including cyclists, walkers and towns — have urged lawmakers to preserve access to trails and argued that clarifying the law now would reduce the practical risk that trails become unusable this season.

Leonard outlined three practical outcomes the committee should consider: passing S.4 now and accepting the legal risk; waiting until a court issues a decision and then tailoring statutory language to that ruling; or leaving the bill dormant. He noted an intermediate statutory option exists should the court rule for landowners: the existing statutory condemnation process could be used to grant municipalities the right to maintain trails while ensuring landowners receive compensation. Leonard cautioned that courts often treat post-enactment language as a substantive change unless the legislature explicitly states an intent merely to clarify the preexisting law.

Committee members asked several clarifying questions about duplicated language in the draft bill, the definition of “legal trails,” and which statutory subsections would be renumbered by S.4. Leonard confirmed the draft reorders subsections and that some language on towns’ authority to “regulate the uses” already appears in the current statute and is not contested by the parties in the pending case.

No motion or vote was taken in the session transcript. The discussion closed with senators agreeing the options carry trade-offs: moving now could provide immediate reassurance to communities that want maintenance to continue, while waiting could reduce the risk of creating new litigation or unexpected compensation obligations depending on how the pending takings litigation resolves.

The committee paused for a brief recess after the discussion.