ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 490
(By Senators Tomblin, Mr. President, Bailey, Chafin,
Fanning, Jackson, Plymale, Redd, Wooton,
Caldwell and Anderson)
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[Originating in the Committee on Judiciary;
reported April 3, 2001.]
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A BILL to amend and reenact section five, article twenty-five,
chapter nineteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections one, two, five and six, article fourteen, chapter
twenty of said code; to further amend said article by adding
thereto two new sections, designated sections nine and ten;
and to amend and reenact section six, article seven, chapter
sixty-one of said code, all relating to limiting liability
exposure for landowners who allow easements, leases or other
access to their property for the Hatfield-McCoy recreation
area or trail; defining terms; allowing rangers on duty on the
Hatfield-McCoy recreation area or trail to carry firearms;
permitting the use of the Hatfield-McCoy trail for
equestrians; allowing the Hatfield-McCoy recreation area
authority to promulgate emergency rules under certain circumstances; requiring certain insurance policies to be read
as containing a waiver of defenses; and allowing the authority
to set user fees for the Hatfield-McCoy recreation area and
trail at its discretion.
Be it enacted by the Legislature of West Virginia:
That section five, article twenty-five, chapter nineteen of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that sections one, two, five and
six, article fourteen, chapter twenty of said code be amended and
reenacted; that said article be further amended by adding thereto
two new sections, designated sections nine and ten; and that
section six, article seven, chapter sixty-one of said code be
amended and reenacted, all to read as follows:
CHAPTER 19. AGRICULTURE.
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.
§19-25-5. Definitions.
Unless the context used clearly requires a different meaning,
as used in this article:
(1) "Charge" means:
(A) For purposes of limiting liability for recreational or
wildlife propagation purposes set forth in section two of this
article, the amount of money asked in return for an invitation to
enter or go upon the land, including a one-time fee for a
particular event, amusement, occurrence, adventure, incident,
experience or occasion which may not exceed fifty dollars a year
per recreational participant:
Provided, That the monetary cap on charges imposed pursuant to this article does not apply to the
provisions of article fourteen, chapter twenty of this code
pertaining to the Hatfield-McCoy regional recreational authority or
activities sponsored on the Hatfield-McCoy recreation area;
(B) For purposes of limiting liability for military training
set forth in section six of this article, the amount of money asked
in return for an invitation to enter or go upon the land;
(2) "Land" includes, but shall not be limited to, roads,
water, watercourses, private ways and buildings, structures and
machinery or equipment thereon when attached to the realty;
(3) "Noncommercial recreational activity" shall not include
any activity for which there is any charge which exceeds fifty
dollars per year per participant;
(4) "Owner" includes, but shall not be limited to, tenant,
lessee, occupant or person in control of the premises;
(5) "Recreational purposes" includes, but shall not be limited
to, any one or any combination of the following noncommercial
recreational activities: Hunting, fishing, swimming, boating,
camping, picnicking, hiking, pleasure driving, motorcycle or
all-terrain vehicle riding, bicycling, horseback riding, nature
study, water skiing, winter sports and visiting, viewing or
enjoying historical, archaeological, scenic or scientific sites or
otherwise using land for purposes of the user;
(6) "Wildlife propagation purposes" applies to and includes
all ponds, sediment control structures, permanent water
impoundments or any other similar or like structure created or constructed as a result of or in connection with surface mining
activities as governed by article three, chapter twenty-two of this
code or from the use of surface in the conduct of underground coal
mining as governed by said article and rules promulgated
thereunder, which ponds, structures or impoundments are hereafter
designated and certified in writing by the director of the division
of environmental protection and the owner to be necessary and vital
to the growth and propagation of wildlife, animals, birds and fish
or other forms of aquatic life and finds and determines that the
premises have the potential of being actually used by the wildlife
for those purposes and that the premises are no longer used or
necessary for mining reclamation purposes. The certification shall
be in form satisfactory to the director and shall provide that the
designated ponds, structures or impoundments shall not be removed
without the joint consent of the director and the owner; and
(7) "Military training" includes, but is not limited to,
training, encampments, instruction, overflight by military
aircraft, parachute drops of personnel or equipment or other use of
land by a member of the army national guard or air national guard,
a member of a reserve unit of the armed forces of the United States
or a person on active duty in the armed forces of the United
States, acting in that capacity.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 14. HATFIELD-MCCOY REGIONAL RECREATION AUTHORITY.
§20-14-1. Legislative findings.
The West Virginia Legislature finds that there is a significant need within the state and throughout the eastern United
States for well-managed facilities for trail-oriented recreation
for off-highway vehicle enthusiasts, mountain bicyclists,
equestrians and others. The Legislature further finds that under
an appropriate contractual and management scheme, well-managed,
trail-oriented, recreation facilities could exist on private
property without diminishing the landowner's interest, control or
profitability in the land
and without increasing the landowner's
exposure to liability.
The Legislature further finds that, with the cooperation of
private landowners,
who hold large tracts of land there is an
opportunity to provide trail-oriented recreation facilities
primarily on private property in the mountainous terrain of
southern West Virginia and that the facilities will provide
significant
economic and recreational benefits benefit to the state
and to the communities in southern West Virginia through increased
tourism in the same manner as whitewater rafting and snow skiing
benefit the state and communities surrounding those activities.
The Legislature further finds that the creation and empowering
of a statutory corporation to work with the landowners, county
officials and community leaders, state and federal government
agencies, recreational user groups and other interested parties to
enable and facilitate the implementation of the facilities will
greatly assist in the realization of these potential benefits.
The Legislature further finds that it is in the best interests
of the state to encourage private landowners to make available for public use through the Hatfield-McCoy regional recreation authority
land for these recreational purposes by limiting their liability
for injury to persons entering thereon, by limiting their liability
for injury to the property of persons entering thereon and by
limiting their liability to persons who may be injured or otherwise
damaged by the acts or omissions of persons entering thereon.
§20-14-2. Definitions.
Unless the context clearly requires a different meaning, the
terms used in this section have the following meanings:
(a) "Authority" means the Hatfield-McCoy regional recreational
authority;
(b) "Board" means the board of the Hatfield-McCoy regional
recreation authority;
(c) "Charge" means, for purposes of limiting liability for
recreational purposes set forth in this article, the amount of
money asked in return for an invitation to enter or go upon the
land, including a one-time fee for a particular event, amusement,
occurrence, adventure, incident, experience or occasion as set by
the authority: Provided, That the authority may set charges in
differing amounts for different categories of participants,
including, but not limited to, in-state and out-of-state
participants, as the authority sees fit;
(c) (d) "Hatfield-McCoy recreation area" means a system of
recreational trails and appurtenant facilities, including trail
head centers, parking areas, camping facilities, picnic areas,
recreational areas, historic or cultural interpretive sites and other facilities that are a part of the system; and
(e) "Land" includes, but is not limited to, roads, water,
watercourses, private ways and buildings, structures and machinery
or equipment thereon when attached to the realty;
(f) "Owner" includes, but is not limited to, tenant, lessee,
occupant or person in control of the premises;
(g) "Recreational purposes" includes, but is not limited to,
any one or any combination of the following noncommercial
recreational activities: Hunting, fishing, swimming, boating,
camping, picnicking, hiking, pleasure driving, motorcycle or
all-terrain vehicle riding, bicycling, horseback riding, nature
study, water skiing, winter sports and visiting, viewing or
enjoying historical, archaeological, scenic or scientific sites or
otherwise using land for purposes of the user;
(d) (h) "Participating county" means the counties of Boone,
Lincoln, Logan, McDowell, Mingo, Wayne and Wyoming and, with the
approval of the board, any other county or counties where trails
and other recreational facilities relating to the Hatfield-McCoy
recreation area are developed in the future with the cooperation of
the county commission.
§20-14-5. Powers of authority.
The authority, as a public corporation and governmental
instrumentality exercising public powers of the state, may exercise
all powers necessary or appropriate to carry out the purposes of
this article, including, but not limited to, the power:
(1) To acquire, own, hold and dispose of property, real and personal, tangible and intangible;
(2) To lease property, whether as lessee or lessor, and to
acquire or grant through easement, license or other appropriate
legal form, the right to develop and use property and open it to
the use of the public;
(3) To mortgage or otherwise grant security interests in its
property;
(4) To procure insurance against any losses in connection with
its property, license or easements, contracts, including hold-
harmless agreements, operations or assets in such amounts and from
such insurers as the authority considers desirable;
(5) To maintain such sinking funds and reserves as the board
determines appropriate for the purposes of meeting future monetary
obligations and needs of the authority;
(6) To sue and be sued, implead and be impleaded and complain
and defend in any court;
(7) To contract for the provision of legal services by private
counsel and, notwithstanding the provisions of article three,
chapter five of this code, the counsel may, in addition to the
provisions of other legal services, represent the authority in
court, negotiate contracts and other agreements on behalf of the
authority, render advice to the authority on any matter relating to
the authority, prepare contracts and other agreements and provide
such other legal services as may be requested by the authority;
(8) To adopt, use and alter at will a corporate seal;
(9) To make, amend, repeal and adopt bylaws for the management and regulation of its affairs;
(10) To appoint officers, agents and employees and to contract
for and engage the services of consultants;
(11) To make contracts of every kind and nature and to execute
all instruments necessary or convenient for carrying on its
business, including contracts with any other governmental agency of
this state or of the federal government or with any person,
individual, partnership or corporation to effect any or all of the
purposes of this article;
(12) Without in any way limiting any other subdivision of this
section, to accept grants and loans from and enter into contracts
and other transactions with any federal agency;
(13) To maintain an office at such places within the state as
it may designate;
(14) To borrow money and to issue its bonds, security
interests or notes and to provide for and secure the payment of the
bonds, security interests or notes and to provide for the rights of
the holders of the bonds, security interests or notes and to
purchase, hold and dispose of any of its bonds, security interests
or notes;
(15) To sell, at public or private sale, any bond or other
negotiable instrument, security interest or obligation of the
authority in such manner and upon such terms as the authority
considers would best serve the purposes of this article;
(16) To issue its bonds, security interests and notes payable
solely from the revenues or other funds available to the authority, and the authority may issue its bonds, security interests or notes
in such principal amounts as it considers necessary to provide
funds for any purpose under this article, including:
(A) The payment, funding or refunding of the principal of,
interest on or redemption premiums on, any bonds, security
interests or notes issued by it whether the bonds, security
interests, notes or interest to be funded or refunded have or have
not become due;
(B) The establishment or increase of reserves to secure or to
pay bonds, security interests, notes or the interest on the bonds,
security interest or notes and all other costs or expenses of the
authority incident to and necessary or convenient to carry out its
corporate purposes and powers. Any bonds, security interests or
notes may be additionally secured by a pledge of any revenues,
funds, assets or moneys of the authority from any source
whatsoever;
(17) To issue renewal notes or security interests, to issue
bonds to pay notes or security interests and, whenever it considers
refunding expedient, to refund any bonds by the issuance of new
bonds, whether the bonds to be refunded have or have not matured
except that no renewal notes may be issued to mature more than ten
years from the date of issuance of the notes renewed and no
refunding bonds may be issued to mature more than twenty-five years
from the date of issuance;
(18) To apply the proceeds from the sale of renewal notes,
security interests of refunding bonds to the purchase, redemption or payment of the notes, security interests or bonds to be
refunded;
(19) To accept gifts or grants of property, funds, security
interests, money, materials, labor, supplies or services from the
federal government or from any governmental unit or any person,
firm or corporation and to carry out the terms or provisions of or
make agreements with respect to or pledge any gifts or grants and
to do any and all things necessary, useful, desirable or convenient
in connection with the procuring, acceptance or disposition of
gifts or grants;
(20) To the extent permitted under its contracts with the
holders of bonds, security interests or notes of the authority, to
consent to any modification of the rate of interest, time of
payment of any installment of principal or interest, security or
any other term of any bond, security interest, note, contract or
agreement of any kind to which the authority is a party;
(21) To sell security interests in the loan portfolio of the
authority. The security interests shall be evidenced by
instruments issued by the authority. Proceeds from the sale of
security interests may be issued in the same manner and for the
same purposes as bond and note venues;
(22) To promulgate legislative rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code as
necessary to implement and make effective the powers, duties and
responsibilities invested in the authority by the provisions of
this article and otherwise by law, including regulation of the conduct of persons using the Hatfield-McCoy recreation area.
Notwithstanding any other provisions of this code to the contrary,
until the Legislature has authorized the rules, the authority may
promulgate emergency rules for those purposes pursuant to section
fifteen, article three, chapter twenty-nine-a of this code;
(23) To construct, reconstruct, improve, maintain, repair,
operate and manage the Hatfield-McCoy recreation area at the
locations within the state as may be determined by the authority;
(24) To exercise all power and authority provided in this
article necessary and convenient to plan, finance, construct,
renovate, maintain and operate or oversee the operation of the
Hatfield-McCoy recreation area at such locations within the state
as may be determined by the authority;
(25) To exercise such other and additional powers as may be
necessary or appropriate for the exercise of the powers conferred
in this section;
(26) To exercise all of the powers which a corporation may
lawfully exercise under the laws of this state;
(27) To provide for law enforcement within the Hatfield-McCoy
recreational area by appointing rangers as provided in section six
of this article;
(28) To develop, maintain and operate or to contract for the
development, maintenance and operation of the Hatfield-McCoy
recreation area;
(29) To enter into contract with landowners and other persons
holding an interest in the land being used for its recreational facilities to hold those landowners and other persons harmless with
respect to any claim in tort growing out of the use of the land for
public recreation or growing out of the recreational activities
operated or managed by the authority from any claim except a claim
for damages proximately caused by the willful or malicious conduct
of the landowner or other person or any of his or her agents or
employees;
(30) To assess and collect a reasonable fee from those persons
who use the trails, parking facilities, visitor centers or other
facilities which are part of the Hatfield-McCoy recreation area and
to retain and utilize that revenue for any purposes consistent with
this article;
(31) To cooperate with the states of Kentucky and Virginia and
appropriate state and local officials and community leaders in
those states to connect the trails of the West Virginia portion of
the Hatfield-McCoy recreation area with similar recreation
facilities in those states;
(32) To enter into contracts or other appropriate legal
arrangements with landowners under which their land is made
available for use as part of the Hatfield-McCoy recreation area;
and
(33) To directly operate and manage recreation activities and
facilities within the Hatfield-McCoy recreation area.
§20-14-6. Hatfield-McCoy recreation area rangers.
The board is hereby authorized to appoint bona fide residents
of this state to act as Hatfield-McCoy recreation area rangers upon any premises which are part of the Hatfield-McCoy recreation area,
subject to the conditions and restrictions imposed by this section.
Before performing the duties of ranger, each appointed person shall
qualify for the position of ranger in the same manner as is
required of county officers by the taking and filing of an oath of
office as required by section one, article one, chapter six of this
code and by posting an official bond as required by section one,
article two, chapter six of this code.
No To facilitate the
performance of the duties of a ranger, a ranger may carry a
gun
firearm or other dangerous weapon
while the ranger is on duty.
It is the duty of any person appointed and qualified to
preserve law and order on any premises which are part of the
Hatfield-McCoy recreation area, the immediately adjacent property
of landowners who are making land available for public use under
agreement with the authority and on streets, highways or other
public lands utilized by the trails, parking areas or related
recreational facilities and other immediately adjacent public
lands. For this purpose, the ranger shall be considered to be a
law-enforcement officer in accordance with the provisions of
section one, article twenty-nine, chapter thirty of this code and,
as to offenses committed within those areas, have and may exercise
all the powers and authority and are subject to all the
requirements and responsibilities of a law-enforcement officer.
The assignment of rangers to the duties authorized by this section
may not supersede in any way the authority or duty of other peace
officers to preserve law and order on those premises.
The salary of all rangers shall be paid by the board. The
board shall furnish each ranger with an official uniform to be worn
while on duty and shall furnish and require each ranger while on
duty to wear a shield with an appropriate inscription and to carry
credentials certifying the person's identity and authority as a
ranger.
The board may at its pleasure revoke the authority of any
ranger. The executive director shall report the termination of
employment of a ranger by filing a notice to that effect in the
office of the clerk of each county in which the ranger's oath of
office was filed and in the case of a ranger licensed to carry a
gun or other dangerous weapon, by notifying the clerk of the
circuit court of the county in which the license for the gun or
other dangerous weapon was granted.
§20-14-9. Limiting liability.
(a) Notwithstanding the provisions of section three, article
twenty-five, chapter nineteen, an owner of land used by or for the
stated purposes of the Hatfield-McCoy regional recreation
authority, whether with or without charge, owes no duty of care to
keep the premises safe for entry or use by others for recreational
purposes or to give any warning of a dangerous or hazardous
condition, use, structure or activity on the premises to persons
entering for those purposes.
(b) Notwithstanding the provisions of section three, article
twenty-five, chapter nineteen of this code, the landowner or lessor
of the property for recreational purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose; or
(b) confer upon such persons the legal status of an invitee or
licensee to whom a duty of care is owed; or (c) assume
responsibility for or incur liability for any injury to person or
property caused by an act or omission of these persons.
(c) Unless otherwise agreed in writing, an owner who grants a
lease, easement or license of land to the authority for
recreational purposes owes no duty of care to keep that land safe
for entry or use by others or to give warning to persons entering
or going upon the land of any dangerous or hazardous conditions,
uses, structures or activities thereon. An owner who grants a
lease, easement or license of land to the authority for
recreational purposes does not by giving a lease, easement or
license: (1) Extend any assurance to any person using the land
that the premises are safe for any purpose; (2) confer upon those
persons the legal status of an invitee or licensee to whom a duty
of care is owed; or (3) assume responsibility for or incur
liability for any injury to person or property caused by an act or
omission of a person who enters upon the leased land. The
provisions of this section apply whether the person entering upon
the land is an invitee, licensee, trespasser or otherwise.
(d) Nothing herein limits in any way any liability which
otherwise exists for deliberate, willful or malicious infliction of
injury to persons or property:
Provided, That nothing herein
limits in any way the obligation of a person entering upon or using
the land of another for recreational purposes to exercise due care in his or her use of the land and in his or her activities thereon,
so as to prevent the creation of hazards or the commission of waste
by himself or herself:
Provided, however, That equestrians who are
using the land upon which the Hatfield-McCoy recreation area is
located but who are not engaged in a commercial profit-making
venture are exempt from the provisions of subsection (d), section
five, article four, chapter twenty of this code.
§20-14-10. Insurance policies.
Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any owner of lands covered under the provisions of this article
shall be read so as to contain a provision or endorsement whereby
the company issuing such policy waives or agrees not to assert as
a defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
use of such insured's land for recreational purposes, unless such
provision or endorsement is rejected in writing by the named
insured.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-6. Exceptions as to prohibitions against carrying concealed
deadly weapons.
The licensure provisions set forth in this article do not
apply to:
(1) Any person carrying a deadly weapon upon his or her own premises; nor shall anything herein prevent a person from carrying
any firearm, unloaded, from the place of purchase to his or her
home, residence or place of business or to a place of repair and
back to his or her home, residence or place of business, nor shall
anything herein prohibit a person from possessing a firearm while
hunting in a lawful manner or while traveling from his or her home,
residence or place of business to a hunting site and returning to
his or her home, residence or place of business;
(2) Any person who is a member of a properly organized
target-shooting club authorized by law to obtain firearms by
purchase or requisition from this state, or from the United States
for the purpose of target practice, from carrying any pistol, as
defined in this article, unloaded, from his or her home, residence
or place of business to a place of target practice and from any
place of target practice back to his or her home, residence or
place of business, for using any such weapon at a place of target
practice in training and improving his or her skill in the use of
the weapons;
(3) Any law-enforcement officer or law-enforcement official as
defined in section one, article twenty-nine, chapter thirty of this
code;
(4) Any employee of the West Virginia division of corrections
duly appointed pursuant to the provisions of section five, article
five, chapter twenty-eight of this code while the employee is on
duty;
(5) Any member of the armed forces of the United States or the militia of this state while the member is on duty;
(6) Any circuit judge, including any retired circuit judge
designated senior status by the supreme court of appeals of West
Virginia, prosecuting attorney, assistant prosecuting attorney or
a duly appointed investigator employed by a prosecuting attorney;
(7) Any probation officer appointed under the provisions of
section five, article twelve, chapter sixty-two of this code;
(8) Any resident of another state who has been issued a
license to carry a concealed weapon by a state or a political
subdivision which has entered into a reciprocity agreement with
this state shall be exempt from the licensing requirements of
section four of this article. The governor may execute reciprocity
agreements on behalf of the state of West Virginia with states or
political subdivisions which have similar gun permitting laws and
which recognize and honor West Virginia licenses issued pursuant to
section four of this article;
(9) Any Hatfield-McCoy regional recreation authority ranger
while the ranger is on duty.
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