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Prairie Spirit Rail Trail Legal Issues

To address concerns of adjacent landowners, farmers, and counties, state legislation in Kansas proposed maintenance and fencing provisions, weed control, and trail use conditions.

By Amelia J. McIntyre, J. D.

Map of Kansas

Introduction

The legislative atmosphere surrounding the creation and development of the Prairie Spirit Trail, operated by the Kansas Department of Wildlife and Parks in Southeast Kansas, has been charged with an electricity of tension between some opponents to any trail use and supporters of a viable public recreational use of the railroad corridor until such time that rail operations are recommenced. As legal counsel to the Kansas Department of Wildlife and Parks from June 1995 to February 1998, I represented such agency's interests during the evolution of legislative efforts to control trail development.

"Failure to adequately maintain railbanked corridors by various non-governmental entities gave opponents to trails the tools to construct the stage for further legislative efforts."

Early legislative appropriations for the construction of the Prairie Spirit Trail contained basic conditions that were conceptually similar to what later became embodied in K.S.A. 58-3212 and 58-3212. Such appropriation conditions were in place prior to my representation of the agency. There were specific conditions in the appropriations paralleling existing state law maintenance requirements that would otherwise be applicable to railroads or other property owners. The conditions related to fencing, weed control, and maintenance of the corridor in a manner that would not create a fire hazard.

These appropriation conditions were the initial safeguards negotiated in the legislature to reduce the concerns from adjoining property owners. Concerns were substantiated by the failure of non-governmental entities to adequately maintain previously railbanked corridors. One examples is the American Trails Association, Inc., a scrap dealer masquerading as a trail entity and NOT related to American Trails, the trail advocacy organization. A second example is the T and P Railway corridor between Topeka and Parnell, crossing Shawnee, Jefferson and Atchison counties.

Failure to adequately maintain railbanked corridors by various non-governmental entities gave opponents to trails the tools to construct the stage for further legislative efforts. The appropriation maintenance conditions reflected the consensus of the legislature, and the Kansas Department of Wildlife and Parks (KDWP), as the operator of the Prairie Spirit Trail, had to factor such consensus into any approach to subsequent legislation.

House Bill 2711 introduced by House Environment Committee during the 1996 Legislative Session arose in such atmosphere. House Bill 2711 of the 1996 Kansas Legislature was signed into law on May 11, 1996 by Governor Bill Graves and reflected hours of negotiations on the provisions among key legislators from the House Environment Committee, and interested parties, including KDWP, the Kansas Farm Bureau (KFB), the Kansas Livestock Association (KLA), the Kansas Horseman Foundation (KHF) and utility companies.

Legal and Practical Issues Arising from K.S.A. 58-3212 and 3213.

No legislation is without weaknesses, and there has been contention about the meaning of various provisions of those statutes. Governmental entities trying to establish a trail in the McPherson area have requested and received opinions of the Kansas Attorney General on the proper application of the statutes, particularly related to the fencing and bonding requirements. Depending on your perspective on the desirability of preserving rail corridors for future use, through interim trail use, either the legislation is too burdensome or has not gone far enough.

There is an old adage that if everyone is pleased with the legislation, that it does nothing. In the case of this legislation, reflecting a compromise, it did something, but by the very nature of the compromise on which it was structured, left some ground for interpretation. The misuse of the provisions is documented in the kinds of examples cited in the requests for the Attorney General opinions. By way of example, a key concept in the legislation negotiations was that if property owners did not have fences on the other sides of their property not adjoining the corridor, that they should pay one-half of the cost of the fence they requested along the trail.

Having the property owner bear one-half of the cost was perceived as a safeguard to the trail operator, because the negotiators of the legislation believed that property owners would be more reasonable in their fence requests if they were paying their share. Some opponents to the trail concept seized on this provision, as linked to the bond or escrow requirement, to request bonds to be in substantially higher amounts than reasonably anticipated by requesting fences of a very expensive nature, for the purposes of calculating the bond amount, but not pursuing construction of such expensive fences, in essence nullifying the safeguard to the trail operator.

K.S.A. 58-3213 has various safeguards respectful of local governmental interests. Such statutory section applies to those recreational trails for which approval to enter into negotiations for interim trail use is received from the appropriate federal agency after the effective date of the legislation, which was July 1, 1996. In particular, K.S.A.58-3213 requires the submission to cities and counties along the proposed trail of a project plan by the responsible party, and subsequent status reports. Subsection K.S.A. 58-3213 (b) (3) and (4) were carefully drafted to permit input by cities and counties along the trail, and to impose on the responsible party a duty to consider the recommendations of such local government units. However, the local entities were not given the right to deny the development of the trail.

Such balance of interests was carefully weighed during the evolution of the state statute so that no one city or county could thwart the interests of other local governments or entities in having a viable trail developed. Even these provisions were conceptually in place as early as the appropriation conditions that preceded the legislation. The appropriation conditions required the consent of counties through which the Prairie Spirit Trail crossed prior to construction in that county. The obstruction by one of three county commissioners in one county (repeatedly failing to attend meetings of the commissioners at which approval of the trail was on the agenda) thwarted development.

The opposition was from the county, notwithstanding cities within the county aggressively sought to have the trail developed. However, the action by this obstructive approach of a particular county commissioner prompted even the KFB, KLA, and others urging restrictions to understand the abuses of some of their initial efforts in the appropriation conditions. In that context, a consensus arose that is reflected in K.S.A. 58-3212 and 3213. The statutory language allowed development on the second phase of the trail, and was less restrictive than the former appropriation conditions. A copy of the House Bill as signed by Governor Graves is attached for your reference.

Subsequent Legislative Efforts

During the 1997 Legislative Session bills were introduced to add the Prairie Spirit Trail to the State Park system, and from a very different perspective to impose a moratorium on any further development of the same trail (which would have included phases two and three). Each of these bills were dealt with a Senate Committee which ultimately recommended for passage a substantially revised package that would have appointed a task force to study resolutions of some the lingering concerns of trail development and to address the impact of the federal law (including case law) developments, and to impose a moratorium only on the third phase of the trail (for which there was no funding) until the report of the task force was delivered to the next legislative session.

The revised package was passed by the Senate, but languished before the House Committee. Prior to the 1998 Legislative Session (which was also an election year in which early positioning from a very conservative chairman of the Kansas Republican Party indicated that he would challenge the moderate Republican Governor Graves), Governor Graves requested KDWP not to push legislation to add the Prairie Spirit Trail to the State Park system due specifically to the "politically charged" nature of the issue. However, the Governor was supportive of a less focused approach of including language in the appropriation authorization to allow park resources to maintain the trail, which was had been developed in the 1997 Legislative Session when the former bill stalled in the House Committee.

In the 1999 Legislative Session a bill was introduced by the KFB and the League of Kansas Municipalities that would have substantially tightened restrictions on development, perhaps to the point of effectively terminating prospects of any future trails. The proposed maintenance and fencing provisions were more restrictive than those placed on railroads. The bill did not pass this session, but could be resurrected the 2000 Legislative Session.

A key element to the long term viability of a trail and a legislative atmosphere in which they must operate is steadfast commitment of community volunteers that are willing to be advocates for the benefits of the trail to their communities. Each trail needs to develop that support. A state agency as the operator of a trail is vulnerable to pressures other than trail needs, and can not always be the advocate of the recreational interests, even if it is charged by statute to protect those interests.

July 2000

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