This commentary is by John Echeverria of Strafford. He is a professor at the Vermont Law and Graduate School.
In a commentary in VTDigger on Feb. 5, Tommy O’Connor, an advocate for outdoor recreation, argued for recognizing “the critical importance of supporting private landowners who generously allow publicly accessible recreational trails on their properties.” Given Mr. O’Connor’s position, he should reconsider his support for S.4, a bill pending in the Vermont Senate that attacks the rights of landowners who allow public recreation on their property.
Mr. O’Connor is correct about the importance of supporting private landowners in order for outdoor recreation to flourish in Vermont. There are approximately 8,000 miles of recreational trails in Vermont. Around 75% of these miles of trail are located on private property which the owners have made available for many forms of outdoor recreation.
Mr. O’Connor emphasized that public access to these private lands is dependent “on the goodwill of private landowners.” He correctly observed that private landowners deserve “recognition” as well as “gratitude” for their generosity.
And he went further to recognize that supporting property owners is a practical “necessity.” Without continued “cooperation” from landowners, he wrote, many of the recreational trails in Vermont “would cease to exist.”
In light of these arguments for supporting landowners, Mr. O’Connor’s testimony a few weeks later before the Senate Transportation Committee in support of S. 4 comes as a shock. S.4 undermines rather than supports private landowners because it would strip property owners of their existing property rights to determine whether and how to maintain “legal trails” crossing their land.
A “legal trail” is a unique type of right-of-way under Vermont law (not part of the town highway systems) existing mostly in short segments totaling about 500 miles scattered across two-thirds of the State’s municipalities. 500 miles is a lot but only a small fraction of the 8,000 miles of recreational trails in Vermont.
Legal trails are governed by longstanding legal rules. State statute gives towns authority to regulate the activities that can occur on legal trails. But the property owners hold title to the land which legal trails cross, and state law denies municipalities the authority to determine whether and how to maintain legal trails, leaving that authority with the property owners.
At least that is our reading of Vermont law and why my wife and I commenced a now well-publicized lawsuit against the town of Tunbridge to obtain a definitive judicial ruling regarding the scope of our legal rights relating to two legal trails crossing our property there.
Many legal trails are currently used for public recreation and landowners often maintain these trails or enlist help from the public in doing so. But some segments of legal trail are not actively maintained, and some landowners highly value their legal right to keep legal trails in a primitive condition to discourage intensive recreation.
In one case I am familiar with, owners of a forested home in the center of the state welcome hikers on the unmaintained legal trail passing within 25 feet of their house, but want to avoid mechanical recreation on the trail. On our land in Tunbridge, part of one legal trail bisects a cow pasture that a succession of owners of the property have opted not to maintain over many decades, because intensive recreation on the trail would destroy the ability to keep cows in the pasture.
S 4 would change Vermont law by handing over to municipal governments landowners’ existing authority to determine whether and how to maintain legal trails crossing their land. This radical change in the law would harm landowners who have reasonably relied on the law in making decisions about purchasing, developing and managing their lands. And because S.4 would authorize a new, unwanted, physical intrusion by government onto private property it would effect a taking of property rights in violation of the U.S. and Vermont Constitutions.
It is perhaps understandable that Mr. O’Conner would be tempted to support S.4’s aim to eliminate landowners’ limited property rights in legal trails with the goal of promoting more outdoor recreation. The rub is that many, perhaps most of the owners of lands subject to legal trails are, at the same time, generously opening other parts of their private land for public recreation, including on recreational trails.
In fact, in Tunbridge there are four legal trails and the owners of land covered by all of these trails voluntarily allow other parts of their private lands to be included in the VAST snowmachine trail system. These landowners also allow the public access to their private lands for many other types of public recreation, including hunting. The same pattern plays out across Vermont.
When one hand extends public recognition and gratitude to landowners for supporting public recreation, but the other hand works to strip the same landowners of valuable property rights which recreation advocates perceive as an obstacle, the effect is upsetting and bewildering. The feeling is very far from that of being supported.
S.4 threatens to undermine the landowner goodwill which O’Connor correctly identifies as the foundation of private lands-based recreation in Vermont. Why would landowners wish to continue to be generous if they feel they and their property rights are being attacked? S.4 suggests that recreation advocates are ready and willing to work against landowner interests whenever they perceive a short-term advantage in doing so.
Furthermore, if recreation advocates are willing to attack private property rights related to legal trails today, some Vermont landowners might sensibly wonder how far this agenda will go and whether it will spread to other recreational trails. And they might begin to quietly withdraw their permission for the public to use their private lands to make their lands less visible to the public and their property rights less vulnerable to government encroachment.
Mr. O’Connor might want to take a step back and consider whether S.4 is contrary to the best interests of all Vermonters, including those who seek to protect and promote public access to private lands for recreational activities.
