House Votes ATVs Off Land Designated for “Low Impact” Use

Concord — March 31, 2007 — A bill that could have affected the town property in Freedom has passed the house and will move to the senate to be voted on soon. Although it will not affect the town’s property, it may affect any future properties with state-owned easements in the future.

Specifically, the bill says it “prohibits the use of certain motorized vehicles on property held by the state of New Hampshire under an easement specifying low impact use only…No off highway recreational vehicles as defined in RSA 215-A:1, VI shall be allowed” on land specifying low-impact recreational use only.

The bill was sponsored by Reps. Judith Spang (D-Durham), Robert Foose (D-New London), and Richard Drisko (R-Hollis), and Sen. Harold Janeway (D-Webster). It passed the House 223-120.

Rep. Harry Merrow (R-Ossipee), a member of the Resources, Recreation and Development Committee, said he amended it to make it not retroactive, limiting it only to future easements, not existing easements. His amendment also made it possible for landowners and easement holders to use OHRVs for emergency or management purposes on that land.

Merrow said he did not vote in favor of the bill because it would restrict people from driving their cars, trucks or ATVs for enjoyment along logging roads or other trails on their own land. He also said he felt it is being fast-tracked.

[Among other local elected officials, Rep. Virginia Heard (D-Center Sandwich) voted in favor of the bill and Rep. Howard Cunningham (D-Center Sandwich) voted against it).

Spang said Tuesday that she wrote the bill in response to what she heard happened at a public hearing in Freedom when an ATV club applied to use the land.

On that property, “there is an easement held by DRED that specified low-impact only,” Spang said. “I called DRED to tell them to call Freedom and tell them they did not need to have the public hearing because the easement specified low-impact only.”

She said DRED then told her that they considered ATV use as low-impact use. “I was really appalled.” Conservation groups would never have considered investing in that land if they thought ATVs were considered low-impact, she added.

Ann Davis, of Wilmot, also provided written testimony to the committee. She said she thinks the state Bureau of Trails is trying to redefine ATVs as low-impact, which would affect state lands, including the John F. Gile Memorial State Forest in Wilmot and Springfield.

“In December, I attended the SCORP meeting…relating to the state’s outdoor recreation plan. During that session, Chris Gamache of Bureau of Trails twice stated that the use of all-terrain vehicles was not necessarily a high-impact use. He said use was connected to frequency and number of riders. He further stated that even too many hikers walking in an inappropriate spot could cause damage,” Davis wrote.

With regards to hearing how she heard about the public hearing, Spang said she had forgotten how she heard about it, although “being the chair of the committee dealing with ATV issues, I tend to hear about these things.”

She said she heard that The Nature Conservancy was going to testify at Freedom’s public hearing that they were concerned about ATVs coming onto their abutting property, that a public agency (LCHIP) helped to pay for the land, and that the Trust for Public Lands brokered the deal. They all thought non-motorized uses would be prohibited, Spang said.

At the house committee hearing, Philip Bryce, of the Department of Resources and Economic Development testified on the bill. He did not give an opinion, but brought up points on how it would affect the state.

On Wednesday, he said that the impact to the state in the future would depend on the wording of any future easements. The bill controls motorized vehicle use on easements that require low-impact only. If there are multiple uses allowed, then motorized vehicles may be allowed, he said.

“[The bill] addresses a communication issue,” he said, of expectations versus requirements put together by a state or private agency that holds an easement. Land use is up to the landowner.

Bryce also said that currently with easement terms of low-impact use, there is a clause allowing the possibility of use of motorized recreational vehicles “upon written mutual agreement by the Fee Owner and Easement Holder.”

“This is a decision of the landowner but must be approved by the state in the context of the conservation purposes and goals of the easement,” he further wrote.

Before it had been amended, Bryce expressed concerns over existing easements being affected and the bill limiting the use of motorized vehicles for land management and easement stewardship purposes.

Although Merrow amended the bill to say the bill would take effect 60 days after it is passed, Spang said it was not originally intended to be retroactive. “No statutes are retroactive,” she said.

Easements are agreements a landowner makes with a non-profit organization or municipality to protect his or her land in perpetuity. In addition to easement holders such as the state and the town, The Nature Conservancy, Audubon Society, and the Society for the Protection of New Hampshire Forests are other easement holders, all of whom may have different requirements or focus on different issues to protect.

Theresa Swanick, of Freedom, also testified at the hearing on Feb. 7. She wrote that the town has created a town forest on which there is an easement with the state through the Land and Community Heritage Investment Program. That land has a low-impact use clause on it. LCHIP’s statement of “the program does prohibit any activities that degrade the purposes for which the property was protected.”

She then mentioned that an ATV club had applied to use the land, and although it had withdrawn its application, she said they indicated they would resubmit their application later.

“HB 392 would go a long way toward supporting conservation land, the citizens of Freedom, and all the hundreds of friends of the Trout Pond Freedom Town Forest…”

Swanick said later that she did not think it would affect the Freedom town forest, just that she is “pro-predictability. I think landowners should have the predictability of knowing what language to write into easements to carry out their intentions, whether they be to allow or prohibit low impact recreation.”

Spang said, “This bill does not do what everyone thinks it will do. It is not retroactive…it’s not going to tie the hands of people in Freedom. It does not affect private transactions. It just makes the state define ‘low-impact.'”

The bill would prevent the use of any motorized use, including ATVs and snowmobiles, under the definition of low-impact, she said. There is still space for land owners and land trusts to negotiate the terms. Because of the amendment to allow motorized use for property maintenance and for emergencies, easements that include farming and forestry can still use ATVs to maintain the property.

Spang acknowledged that ATV clubs can monitor their trails for damage and violators, but she said she wondered about their consistency.

“I know [the clubs] are wrestling with the people who are giving them a bad reputation,” she said, but it is hard to tell where they are from a long distance away, and then “the next day you find out they’ve been all over the place.”

And a club’s officers change from year to year. Maybe one year, a president works hard to monitor the trails, and the next year the president has a full-time job and cannot be out there as much, she said.

In Freedom, there was public money invested, she said. This money needs to be used a certain way, and there needs to be assurances. This bill will provide those assurances.

And the effect on the state? Spang said she thinks there will be a positive effect for the state. “People are becoming reluctant to give land to the state because of the way it’s twisting things,” she said. “I’m hearing that they’re becoming skittish. [The bill] will help people trust the state.”

“I especially want more of the public to know that the new IRS tax incentives allow donors of easements substantially increased deductions, from 30 to 50 percent of adjusted gross income, and extends the carry-over period from 5 to 15 years,” Swanick said.

“For landowners, sportsmen and conservationists dedicated to open space and working lands, this is a welcome opportunity to maximize the private benefit of conserving your land. President Bush has asked in his 2008 budget for these incentives to be made permanent, but as yet they are set to expire in 2007.”

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