hb4270 intr

H. B. 4270

(By Delegates Fleischauer, Manchin, Caputo,
Williams, Houston, Beach and Shaver)
[Introduced February 3, 2004 ; referred to the
Committee on Government Organization then Finance.]

A BILL to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated article §20-15-1, §20-15-2, §20-15-3, §20-15-4, §20-15-5, §20-15-6, §20-15-7, §20-15-8, §20-15-9 and §20-15-10, all relating to creating the north central West Virginia regional trails and recreation authority; setting forth legislative findings; defining certain terms; creating and appointing the north central West Virginia regional trails and recreation authority board; setting forth the powers and duties of the board; providing for the appointment of rangers; providing bonding authority; establishing criminal penalties; l imiting liability exposure for landowners who allow easements, leases or other access to their property for the north central West Virginia regional trails and recreation authority recreation area or trail; allowing rangers on duty on the north central West Virginia regional trails and recreation authority recreation area or trail to carry firearms; allowing the north central West Virginia regional trails and recreation authority to promulgate emergency rules under certain circumstances; and allowing the authority to set user fees for the north central West Virginia regional trails and recreation authority recreation area and trail at its discretion.

Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §20-15-1, §20-15-2, §20-15-3, §20-15-4, §20-15-5, §20-15-6, §20-15-7, §20-15-8, §20-15-9 and §20-15-10, all to read as follows:
ARTICLE 15. North central West Virginia regional trails and recreation authority.

§20-15-1. 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, walkers, joggers, off-highway vehicle enthusiasts, 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, there is an opportunity to provide trail-oriented recreation facilities primarily on private property in north central West Virginia and that the facilities will provide significant economic and recreational benefits to the state and to the communities in north central West Virginia through increased tourism in the same manner as white-water 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 north central West Virginia regional trails and 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.
§20-15-2. Definitions.
Unless the context clearly requires a different meaning, the terms used in this section have the following meanings:
(a) "Authority" means the north central West Virginia regional trails and recreation authority;
(b) "Board" means the board of the north central West Virginia regional trails and 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;
(d) "North Central West Virginia Regional Trails and 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;
(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;
(h) "Participating agency" means any unit of federal, state or local government in the north central part of this state and, with the approval of the board, any other unit of federal, state or local government where trails and other recreational facilities relating to the north central West Virginia recreation area are developed in the future.
§20-15-3. Creation; appointment of board; terms.
(a) There is hereby created the "North Central West Virginia Regional Trails and Recreation Authority" which is a public corporation and a government instrumentality existing for the purpose of enabling and facilitating the development and operation of a system of trail-oriented recreation facilities for use by walkers, joggers, off-highway vehicle enthusiasts, bicyclists, equestrians and others. This recreational trail system shall be located in north central West Virginia with significant portions of the recreational trail system being located on private property made available for use through lease, license, easement or other appropriate legal form by a willing landowner.
(b) The authority shall be governed by a board of at least seventeen members who shall be representative of the various interests involved in the north central West Virginia regional trails and recreation authority recreation area project in the north central region of the state and who shall be appointed as follows:
(1) The county commission of each participating county, as defined in section two of this article, shall appoint two members of the board as follows:
(A) One member who represents and is associated with a corporation or individual landowner whose land is being used or is expected to be used in the future as part of the north central West Virginia regional trails and recreation authority recreation area project. This member shall be appointed to a four-year term.
(B) One member who represents and is associated with travel and tourism or economic development efforts within the county. The initial appointment shall be for a two-year term, but all subsequent appointments shall be for a four-year term.
(2) Each municipality participating in the north central West Virginia regional trails and recreation authority project shall appoint two board members, at least one of whom represents and is associated with recreational users of the north central West Virginia regional trails and recreation authority area project. These members shall serve three-year terms.
(3) The following three persons shall serve as nonvoting members representing the state: The director of the division of travel and tourism, the director of the division of natural resources, and the director of the division of forestry, or their respective designees.
Any appointed member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any appointed member is eligible for reappointment. Members of the board are not entitled to compensation for services performed as members but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.
(c) Before the authority issues any revenue bonds or revenue refunding bonds under the authority of this article, each appointed voting member of the board shall execute a surety bond in the penal sum of twenty-five thousand dollars and the officers and executive director of the board shall each execute a surety bond in the penal sum of fifty thousand dollars. Each surety bond shall be conditioned upon the faithful performance of the duties of the member, officer or director, shall be executed by a surety company authorized to transact business in this state as surety and shall be approved by the governor and filed in the office of the secretary of state. The authority shall pay premiums on the surety bonds from funds accruing to the authority.
§20-15-4. Board; quorum; executive director; expenses.
The board is the governing body of the authority and the board shall exercise all the powers given the authority in this article.
The board shall meet quarterly, unless a special meeting is called by its chairman: Provided, That on the second Monday of July of each even-numbered year, or as soon thereafter as feasible, the board shall meet to elect a chairman, secretary and treasurer from among its own members.
A majority of the members of the board constitutes a quorum, and a quorum shall be present for the board to conduct business. Unless the bylaws require a larger number, action may be taken by majority vote of the members present.
The board shall prescribe, amend, and repeal bylaws and rules governing the manner in which the business of the authority is conducted and shall review and approve an annual budget.
The board shall appoint an executive director to act as its chief executive officer, to serve at the will and pleasure of the board. The board, acting through its executive director, may employ any other personnel considered necessary and may appoint counsel and legal staff for the authority and retain such temporary engineering, financial and other consultants or technicians as may be required for any special study or survey consistent with the provisions of this article. The executive director shall carry out plans to implement the provisions of this article and to exercise those powers enumerated in the bylaws. The executive director shall prepare annually a budget to be submitted to the board for its review and approval.
All costs incidental to the administration of the authority, including office expenses, personal services expense and current expense, shall be paid in accordance with guidelines issued by the board from funds accruing to the authority.
All expenses incurred in carrying out the provisions of this article shall be payable solely from funds provided under the authority of this article and no liability or obligation may be incurred by the authority under this article beyond the extent to which moneys have been provided under the authority of this article.
§20-15-5. 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 north central West Virginia regional trails and recreation authority 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 north central West Virginia regional trails and recreation authority 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 north central West Virginia regional trails and recreation authority 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 north central West Virginia regional trails and recreation authority 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 north central West Virginia regional trails and recreation authority 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 north central West Virginia regional trails and recreation authority 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 north central West Virginia regional trails and recreation authority 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 north central West Virginia regional trails and recreation authority recreation area; and
(33) To directly operate and manage recreation activities and facilities within the north central West Virginia regional trails and recreation authority recreation area.

§20-15-6. North central West Virginia regional trails and recreation authority recreation area rangers.

The board is hereby authorized to appoint bona fide residents of this state to act as north central West Virginia regional trails and recreation authority recreation area rangers upon any premises which are part of the north central West Virginia regional trails and recreation authority 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. To facilitate the performance of the duties of a ranger, a ranger may carry a 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 north central West Virginia regional trails and recreation authority 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.
§20-15-7. Bonds not a debt of the state.
Revenue bonds and revenue refunding bonds of the north central West Virginia regional trails and recreation authority issued under the provisions of this article do not constitute a debt of the state or of any political subdivision of the state or a pledge of the faith and credit of the state or of any political subdivision, but the bonds shall be payable solely from the funds provided in this article from revenues resulting from the issuance of bonds. All bonds shall contain on the face of the bond a statement to the effect that neither the state nor any political subdivision of the state is obligated to pay the bond or the interest on the bond except from revenues of the recreational project or projects for which they are issued and that neither the faith or credit nor the taxing power of the state or any political subdivision of the state is pledged to the payment of the principal or the interest on the bonds.
§20-15-8. Criminal penalties.
Any person who violates any of the rules promulgated by the board under authority of this article is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not more than five hundred dollars.
§20-15-9. 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 north central West Virginia regional trails and 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: (1) Extend any assurance that the premises are safe for any purpose; or (2) confer upon such 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 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 north central West Virginia regional trails and recreation authority 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.
§20-15-10. 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.

NOTE: The purpose of this bill is to create the North Central West Virginia Regional Trails and Recreation Authority to provide trail-oriented recreation facilities and programs primarily on private property in north central West Virginia and to appoint a North Central West Virginia Regional Trails and Recreation Authority board as a public corporation. The bill sets forth the powers and duties of the board including providing for the appointment of rangers and it gives the board bonding authority. Criminal penalties are established and participating landowners are protected from liability under the bill. The bill is patterned after the Hatfield-McCoy Regional Recreation Authority legislation and includes the same powers and authorities as are given the Hatfield-McCoy Regional Recreation Authority board.

This article is new; therefore, strike-throughs and underscoring have been omitted.