Senate Transportation hears legal risks if bill grants towns explicit trail-maintenance authority

Members of the Senate Transportation Committee heard legal analysis April 22 on S.4, the bill that would address municipal authority over trails previously classified as town highways and the risks of clarifying or granting towns the right to maintain them.

The committee received the briefing from Tucker Anderson and Damian (Damien) Leonard of the Office of Legislative Council, who outlined the statutory history, ongoing litigation, and drafting options. "This is not a court and that we're not rendering decisions," said Tucker Anderson, Legislative Counsel. "We're going to give you the language of the law and then key you up for your policy decisions."

The memo summarized how trail-related provisions originated in Act 121 (1921), were recodified and altered in later statutes (including a 1967 change and Act 269 of 1986), and how the statutes use differing terms — for example, "liable" and "responsible" — without an explicit grant of authority to maintain trails in every relevant provision. Anderson told the committee that recodification in 1986 left ambiguities that have produced conflicting interpretations.

Damian Leonard, Legislative Council, said litigation is already pending in superior court over whether the General Assembly intended in 1986 to remove municipalities' authority to maintain trails. "There are cross motions for summary judgment filed and finished briefing them," Leonard said. "If the court finds that…