WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Senate Bill 160
By Senators Trump, Barrett, Plymale, Maroney, Woodrum, Woelfel, Deeds, and Taylor
[Introduced January 12, 2023; referred
to the Committee on Outdoor Recreation]
A BILL to amend and reenact §5B-1A-1, §5B-1A-2, §5B-1A-3, §5B-1A-4, §5B-1A-5, §5B-1A-6, and §5B-1A-9 of the Code of West Virginia, 1931, as amended, all relating to establishing the West Virginia Rail Trails Program consisting of rail-to-trail and rail with trail programs; updating definitions to include a definition of "rail with trail"; expanding State Rail Authority to acquire railroad rights-of-way and land for both trail programs; clarifying that rail-to-trail program may not unreasonably limit ability to restore rail service on railroad rights-of-way; and expanding limitation of and exception to liability to railroad owners under certain circumstances.
Be it enacted by the Legislature of West Virginia:
The Legislature hereby declares that the long-term value to the public of retaining networks of abandoned railroad corridor lines is substantial, not only for the preservation of corridors for future rail transportation uses, but in terms of providing interim recreational use, providing public open space and linking together other community areas and recreational spaces, providing for efficient and convenient placement of underground utilities and telecommunication lines, providing environmental greenways and wildlife habitat, providing public access to other forms of recreation, and improving economic development opportunities associated with all of the above listed multiple uses.
There is continued within the State Rail Authority provided for §29-18-1 et seq. of this code the "West Virginia Rails to Rail Trails Program," the purpose of which is to acquire or assist with the acquisition of and to develop or assist with the development of, abandoned railroad rights-of-way for interim use as public nonmotorized recreational trails.
As used in this article:
(1) "Abandoned railroad rights-of-way" means land on which discontinuance of rail service has been authorized by the interstate commerce commission federal Surface Transportation Board pursuant to the Surface Transportation Board Reauthorization Act of 2015, Public Law 114-110.
(2) "Division" means the Division of Tourism and parks
(3) (2) "Nonmotorized recreational trail use" means bicycle, hiking, cross-country skiing, horseback riding, horse drawn wagon, jogging, or other similar activities.
(4) (3) "Rail bank" means the holding intact of an abandoned railroad right-of-way for future railroad service.
(5) (4) "Rail-to-trail" means an abandoned railroad right-of-way utilized in the interim as a public nonmotorized recreational trail.
(5) "Rail with trail" means a shared-use path or trail open and developed for nonmotorized recreational use by the public that is located on or adjacent to the rights-of-way of an active railroad.
The State Rail Authority is authorized to may:
(1) Enter into agreements with any person on behalf of the state to acquire an interest in any abandoned or active railroad right-of-way, to develop, maintain, or promote any rail-to-trails or rail with trails created pursuant to the provisions of this article and, with the consent of the director of the Division of Natural Resources, to transfer the maintenance and operation of rail trails created and developed to the Division of Natural Resources.
(2) Assist any political subdivision or any person in acquiring an interest in any abandoned railroad right-of-way and in developing, maintaining, or promoting rail-to-trails or rail with trails.
(3) Evaluate existing and potential abandoned railroad rights-of-way so as to identify such suitable lands as may be suitable for nonmotorized recreational trail use.
(4) Establish state rail-to-trails or rail with trails, subject to the limitations on acquisition of land for state recreational facilities, as set forth in §20-1-20 this article.
(a) The State Rail Authority shall hold fee simple title or any lesser interest in land, including easements and leaseholds, on all abandoned railroad rights-of-way acquired by the state and utilized used for interim nonmotorized recreational trail use pursuant to the provisions of this code. State Rail Authority may, at the option of a political subdivision of this state, hold fee simple title or any lesser interest in land, including easements and leaseholds, on all abandoned railroad rights-of-way acquired by such political subdivision and utilized used for interim nonmotorized recreational trail use. Any provision of article §20-1A-1 et seq. of this code to the contrary notwithstanding, the public land corporation shall not be vested with title to any abandoned railroad right-of-way which becomes vested in the state pursuant to the provisions of this article.
(b) The State Rail Authority may acquire an interest in an abandoned railroad right-of-way to be used as a rail-to-trail in accordance with the provisions of §29-18-6 of this article.
(c) The State Rail Authority shall issue a rail bank certificate for each abandoned railroad right-of-way held by the State Rail Authority for interim nonmotorized recreational purposes in accordance with the provisions of §5B-1A-6 of this article.
(a) No An abandoned railroad right-of-way acquired by the state prior to the effective date of this article and used as a rail-to-trail may not be used for any purpose that would unreasonably limit the ability to restore rail service over the right-of-way if such that service were to be required in the future.
(b) Any and all abandoned railroad rights-of-way acquired by the state prior to the effective date of this article are hereby declared held for railroad transportation purposes as of the date of acquisition, until, by executive order of the Governor, the right-of-way is declared no longer suitable for a public transportation purpose as a railroad right-of-way. Such The abandoned railroad rights-of-way shall not revert by operation of law to any other ownership while being held for future railroad use in accordance with the provisions of this travel article.
(a) General rule.— Except as specifically recognized or provided in subsection (e) of this section, an owner, railroad company, or lessee who provides the public with land for use as a trail under this article or who owns land adjoining any trail developed under this article, owes no duty of care to keep the land safe for entry or use by others for recreational purposes, or to give any warning to persons entering or going on the trail or adjoining land of a dangerous condition, use, structure, or activity thereon.
(b) Owner.— Any person, public agency, or corporation owning an interest in land utilized used for recreational trail purposes pursuant to this article shall be treated as an "owner" for purposes of this article.
(c) Specific limitations on liability.— Except as specifically recognized by or provided in subsection (e) of this section, an owner, railroad company, or lessee who provides the public with land or who owns adjoining land to the trail under this article is not, by providing that trail or land or owning land adjoining the trail:
(1) Presumed to extend any assurance that the land is safe for any purpose;
(2) Incur any duty of care toward a person who goes on that land; or
(3) Become liable Liable for any injury to persons or property caused by an act or an act of omission of a person who goes on that land.
(1) This section does not apply to the owner, railroad company, or lessee of the land used as a trail if there is any charge made or usually made for entering or using the trail or land, or any part thereof.
(2) This section does not apply to the owner of land adjoining a trail if there is any charge made or usually made by the owner of such adjoining land for using the trail or land, or any part thereof, or if any commercial or other activity relating to the use of the trail whereby profit is derived from the patronage of the general public is conducted on such adjoining land, or on any part thereof.
(3) The foregoing applies provisions of this subsection apply whether the person going on the land provided or adjoining is an invitee, licensee, trespasser, or otherwise.
(e) Application to railroad companies.— This section applies to railroad companies who own unused rail lines, and who allow a nonprofit or a local or state governing body to use that property for tourism or the public good to include, but not be limited to, the development of rail trails, camp areas, playgrounds, and mini excursions.
(e) (f) Liability.— This article does not relieve any person of liability which would otherwise exist for deliberate, willful, or malicious injury to persons or property. The provisions of this article do not create or increase the liability of any person.
NOTE: The purpose of this bill is to update and correct sections of the West Virginia Rail Trails Program. The bill provides for updated definitions to include a definition of "rail with trail." Finally, the bill addresses railroad liability and safety risk concerns proposed during the 2021 regular legislative session.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.