Nebraska Legislature Update
By Dan Nitzel
Nebraska’s 100th Legislature convened at 10:00 a.m. on Wednesday, Jan. 3, 2007. Three bills were introduced that directly effect all terrain vehicles.
LB-70 was introduced by Senator Deb Fischer of Valentine. LB 70 authorizes municipal employees to operate an all-terrain vehicle (ATV) while in the scope of their employment. Current statutes state that an ATV shall not be operated on any highway of this state. There are currently three exceptions in the existing statute. It allows for authorized parades, allows for agricultural purposes, and electric utility personnel within the course of their employment. The bill proposes to amend existing statutes by adding a fourth exception to allow operation of an ATV on a highway inside the corporate limits of any municipality by employees of such municipality within the scope of their employment. As of this writing the bill is indefinitely postponed meaning that it’s dead for the year.
LB-288 was introduced by Senator Leroy Louden of Ellsworth. The proposed bill if passed will allow the use of an all terrain vehicle on any road, street or highway in Nebraska by anyone. The bill does not call for ATVs to be licensed or insured. Operators must have a class “O” license or learners permit. ATVs will be required to have a flag, must operate only during daylight hours and must not travel more than 30 mph at any time. As of this writing the bill is still in committee, passage is unlikely.
LB-307 was introduced by Senator Arnie Stuthman of Platte Center. LB-307 proposes to add to the existing state ATV use statutes by adding two additional items. The first item involves people who use ATVs on roads must have liability insurance. Additionally, the law will allow villages and cities to regulate the use of ATVs within their jurisdiction. Currently, farmers and ranchers can travel across a city or village to access a farm or ranch for agricultural purposes. Some cities want to stop this travel. Whit this revision to existing statutes, cities and villages will be able to stop agricultural traffic across their jurisdiction. There are some concerns about this bill as it may allow cities to prohibit the use of ATVs in cities with snow blades and for landscaping, however I believe that it will have little impact. Some cities such as Lincoln are already stopping the use of ATVs for snow removal and landscaping. LB-307 still limits the riding of ATVs on roads and streets strictly for agricultural use or by use by a utility department. Riding an ATV on streets, roads or highways for any use other than agriculture or utility work will remain illegal in Nebraska. This bill has been passed by the legislature and has been be signed by the Governor and made law.
NOHVA has not taken a position on any of the before mentioned bills. In the past, we have supported legislation that encourages safe recreational use of ATVs and dirtbikes. It can be assumed that allowing ATVs on the street for recreational use would increase the number of fatalities in Nebraska. However, we support the concept of finding new places for our members to ride. With these main points in mind, I have made the following suggestions to State Senators concerning any changes to ATV statutes in Nebraska:
·
Allow the use of ATVs only on
roads and highways or sections of roads and highways that are first approved
by the local government subdivision that controls the particular road or
highway. The approved road or highway will then be marked with an consistently
designed “ATV Permitted” sign indicating that the road is open to ATV use and
alerting drivers in larger vehicles that the slower ATVs are sharing the road or
road system. Local government subdivisions should be allowed to post a road or
street, or designate an area as closed to ATV travel, or place restrictions on
ATV use such as can be used only for agricultural, park and utility use and for
parades. The speed limit for ATVs should be much higher than the suggested 30
mph. Many ATVs are capable of traveling over 70 mph. The speed limit should
not be so low that an ATV impedes traffic. I can say with a great deal of
confidence that very few people will follow the 30 mph speed limit on a rural
road or highway.
·
Require that any ATV used on a
road or street be licensed unless used exclusively on private property or on
public trails. This would make it much easier for law enforcement to identify
machines. It would also solve the problem that Nebraska currently has with low
participation of owners titling their ATVs. All riders must have a current
drivers license. The owner must have insurance. The rider should wear a
helmet.
·
Require those who use ATVs on
public trails to have a trail registration. The machine must have a title prior
to being registered. The registration fee would be deposited into a state
motorized trail fund and those who own or maintain the trails can apply for
funds. A trail registration would require those who use public trails to help
pay for the maintenance of the trail, and help pay for security and land owner
liability insurance. A drivers license would not be required and all riders
under the age of 16 must be under the direct supervision of an adult at all
times. The owner should have insurance.
·
All ATVs on roads, streets, public
trails and private property must have a muffler that meet noise limits and must
have a U.S. Forest Service Approved spark arrestor. The national noise limit is
96 dB(A) as recommended
by Motorcycle Industry Council and by the Specialty Vehicle Institute of
America, using the “SAE
J1287 Jul98 Stationary Sound Test Procedure”. Noise limits should be allowed to
be set by local ordinance
or
agency rule.
·
Double riding on roads, streets or
public trails should not be allowed unless the machine is specifically designed
by the manufacturer to carry two riders.
·
Those who fail to license their
ATV, fail to register their ATV for trail use, or are caught trespassing on
public or private property can face a fine for the first and second offense, and
confiscation of the unit until the case goes to court and the fines are paid on
the third offense.
· Alcohol use is common among ATV riders. DUI regulations should be the same as for those in regular motor vehicles.
Bills Introduced to Address Liability
By Dan Nitzel
Three bills were introduced during Nebraska’s 100th Legislature that address liability issues that may effect places where ATV ride in Nebraska. Only LB-564 made it past committee and as of this writing is in select file, meaning that it is waiting for one final vote by the legislature. It is not known if the Governor will sign it.
LB-564 was introduced by Senator Mike Friend of Omaha. The purpose of this legislation is to return the Nebraska Recreational Liability Act back to the status as it was previously understood, after a recent Supreme Court ruling, and restore the limited immunity standard for publicly-owned lands made available for recreational purposes. The definition of “owner” under the new Recreational Liability Act would be amended to include the State of Nebraska, a state agency, and any political subdivision of the state, and would clearly define these government subdivisions as being covered from liability under the terms of the Act. As of this writing the bill is still in committee and the future status is not known.
LB-566 was introduced by Senator Leroy Louden of Ellsworth. This bill is very similar to LB-564 except that it specifically mentions the University of Nebraska and other state colleges as being immune to liability. As of this writing the bill is still in committee and the future status is not known.
LB-567 was introduced by Senator Leroy Louden of Ellsworth. This bill is very similar to LB-564 except that it specifically states that private land owners that charge a fee to enter land for recreation would be covered by the Nebraska Recreational Liability Act. Also covered would be any government subdivision in Nebraska. As of this writing the bill is still in committee and the future status is not known. NOHVA supports this bill as it may help encourage private land owners to open and develop land for recreational riding.
All of this concern about liability came about because of a court case that arose from the Fur Trade Days in Chadron in 2002, when a woman stepped in a hole on the Dawes County Courthouse lawn and broke her ankle. Several surgeries later, she sued the county.
Dawes County argued before the courts that they are not responsible for the damages as they are covered under Nebraska’s Recreational Liability Act. Lower courts said the state Recreation Liability Act and Supreme Court rulings dating to 1981 required her to show "willful or malicious failure to act" in order to validate a claim.
On Sept. 29, Chief Justice of the Nebraska Supreme Court John Hendry said the state law, passed in 1965, protected private individuals who opened their property for recreation. That statute said nothing about public landowners, which lost protection under a 1969 law, he wrote. In the ruling, the court said that governments can more easily be held liable for recreational accidents on their land. The decision reversed 25 years of previous high court rulings. And it has government leaders wondering if they can risk permitting any kind recreational activity on their land.
With this opinion issued by the Nebraska Supreme Court, initially skate board parks in North Platte, Fremont and Hastings were closed. Now, many skate board parks in Nebraska cities have closed. Public parks where sledding was once allowed have been closed in Omaha. Some cities are considering closing parks, trails and swimming pools unless a new bill is passed. Insurance companies have informed city governments and other government land management agencies that the skate board parks and other recreational activities, such as hunting, are no longer covered, or that the insurance cost covering the parks has substantially increased. In the case of the increased insurance costs, some cities decided that they cannot afford the increased insurance rates.
Because of the ruling, other government lands have been closed as well. The University of Nebraska has recently decided to close all of the lands they mange that were formally open to the public for hunting.
Why should we be concerned about this? The Headworks OHV Park near Genoa, the Flat Rock Riders OHV Park near Sutherland and the Alliance MX track near Alliance are all owned by government agencies. These government agencies operated these parks under the assumption that they were shielded from liability because of the Nebraska Recreational Liability Act.
This same act can be used to protect NOHVA. Our insurance costs are based on the assumption that the Nebraska Recreational Liability Act would be the first road block to protect us. In the worst case scenario, if our insurance company determines that they cannot continue our insurance policy because of the recent Supreme Court ruling, the Flat Rock Riders park and the Alliance track will close. Additionally, our organization would no longer be protected from liability at the Headworks OHV Park.
So what is going to be done to change the Nebraska Recreational Liability Act so that government agencies are covered? Let’s HOPE that LB-564 is passed SOON.
What you can do to help is contact your state legislator and ask for their help. Ask them to support LB-564. Tell them about your concern that the Supreme Court ruling last year may close the public places in Nebraska that your ride. They need to be told that the ruling may cause premiums for the areas you ride to increase dramatically and it may not be economically feasible for the areas to remain open. Tell them that government land owners need protections from liability. Also mention that our sport, off-highway recreation including ATVs and off-road motorcycles need to be exclusively mentioned in the revised act in the same manner as equestrian sports (horse back riding).
Questions or discussion? Call me at home 308-381-2143. Thanks for your help!
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