DNE
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
November 2, 2011 OAG—3—11
ReStartCorporation Counsel
Trempealeau County
Post Office Box 67
Whitehall, WI 54773-0067 BodyStart¶ 1. Your predecessor advised that a fifty-member private All Terrain Vehicle (“ATV”) Club operating within Trempealeau County has requested the county board to designate three short sections of county trunk highways as ATV routes. Your predecessor was concerned that such designations would violate the public purpose doctrine. BACKGROUND
¶ 2. The club has developed a number of trails on privately-owned land. Such trails can only be used by club members or their invitees. Other persons must pay the club a fee to use the club’s trails.
¶ 3. The club has persuaded at least two towns to designate certain sections of town roads as ATV routes and has also persuaded at least one city to designate certain sections of city streets as ATV routes. In each such case, the club indicated that the reason for requesting the municipal designations was that it had been unable to secure the permission of private landowners to connect the club’s off-road trails. The municipally-designated, publicly-owned ATV routes connect the club’s private off-road trails.
¶ 4. The club has made a similar request to the county to designate three short sections of county roads as ATV routes. The longest of these sections is 1.3 miles. The designated portions of the county roads would be open to the public as ATV routes. In response to a request for further information, you indicate that it is very unlikely that persons who are not members or invitees of the club would trailer their ATVs to the county highway segments for which designations have been sought and use their ATV’s on those segments because they are so short.
¶ 5. In response to the request for further information, you have also advised that insofar as you have been able to ascertain no county funds or resources would be expended in designating the trails or in maintaining the trails after they are designated. All signage and road approaches would be paid for and maintained by the club at its sole expense. The county highway commissioner has advised you that ATV traffic on the county highway segments would not result in additional wear and tear upon the road segments such that additional county expenditures for maintenance or repair would be required.
¶ 6. A proposed county ordinance would permit the county board to grant the designations requested by the private club. Relevant sections of the proposed county ordinance provide as follows:
SECTION 1 . . . .
. . . .
B. Following due consideration of the recreational and economic value to connect trail opportunities and weighted against protecting the safety of motorists by maintaining the road edge, surface and integrity of the rightofway, public safety, liability aspects, terrain involved, traffic density and history of automobile traffic, this ordinance has been created pursuant to County Board authority under Wis. Statutes 59.02, 23.33(11)(a) and (am), and 23.33(8).
. . . .
D. Private trails. In addition to establishing ATV routes to connect ATV trails as defined in Section 23.33(1)(d), the County Highway Department may also establish routes for the purpose of connecting off-road trails established by private entities for the exclusive use of their members, their invitees or other persons paying a fee for use of the trail. However, the use of the route along the roadway may not be limited to those persons approved by or paying a fee to the private entity. . . . .
SECTION 4 . . . .
. . . .
C. The permittee shall furnish all materials, do all work, and pay all costs in connection with the construction or maintenance of the approach or crossing and its appurtenances within the right-o[f]-way. The County shall not give, sell, or otherwise provide any equipment, labor or materials for the project.
D. Maintenance of approaches or crossings is the responsibility of the organization and/or the person signing the permit application. The Highway Department will monitor the approaches/crossings on a periodic basis. The results of these reviews may indicate a periodic need for maintenance. In such case the Highway Department will notify the person signing the application of those needs and the permittee will have 10 days to complete the maintenance or the route/crossing may be closed until such time as the maintenance is done and approved by the Department.
