Can a New York county let ATV riders use county reforested lands and give an ATV club exclusive use of trails the club builds there?

Plain-English summary

Allegany County wanted to authorize ATV use on county-owned reforested lands, let a private ATV organization construct a trail system there, and grant the organization exclusive use of that trail system. The AG split the questions.

On ATV use and trail construction, the AG concluded the County had authority. County Law § 219(1) lets a county board acquire and maintain reforested lands "for purposes of watershed protection, development of oil and gas retrieval, the production of timber and forest products and for recreation and kindred purposes." Recreation is an enumerated permissible use. The statute does not define "recreation" or limit its scope, so the AG read it to include ATV use. VTL § 2405(2) lets a municipality designate "any appropriate public lands . . . as a place open for travel by ATVs," subject to restrictions on hours, designated trails, and similar safety regulation. Reading the two statutes together, the AG found reforested land was "appropriate public lands" for ATV travel.

Trail construction was authorized within limits. County Law § 219(1) contemplates land use for timber, oil/gas, and recreation; brush cutting and incidental landscaping to prepare a trail were consistent with those uses. But the AG was emphatic about consistency with forest, wildlife conservation, and watershed protection (the statute's controlling clause). The AG cited Op. Atty. Gen. No. 90-F1 (interpreting N.Y. Const. Art. XIV § 3(1) and ECL § 9-0501(1)) and reminded the County to comply with applicable state and federal environmental laws, including ECL Article 11 (endangered species), Article 24 (wetlands), Article 17 (water quality), and Article 15 (stream disturbances). The County also had to ensure that ATV use did not interfere with other public uses such as skiing and biking.

On exclusive use, the AG concluded no. Under Lake George Steamboat Co. v. Blais (1972), a municipality cannot divert property acquired or held for public use to "a possession or use exclusively private" without specific legislative sanction. The Court of Appeals had applied that rule to forbid a village from leasing a public dock to a private sight-seeing company. County Law § 219(1) authorized leases of reforested lands only for oil and gas exploration, not for any other purpose. Granting an ATV club exclusive use of a trail system on public lands had no statutory basis and would divert public lands to private purposes. The County could build and operate trails for general public ATV use, but it could not lock other users out in favor of one private organization.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the county contract with the club for trail maintenance?

The opinion blocked exclusive use, not contractual cooperation. The AG did not address whether the county could contract with a private organization to maintain trails that remain open to the general public. That is a separate question; many counties use volunteer organizations for trail maintenance, with the public retaining the right to use the trails.

What does "appropriate public lands" mean under VTL § 2405(2)?

The statute provides no general definition; suitability is fact-specific. Reforested lands designated for recreation under County Law § 219(1) qualified here because the statute's recreation purpose dovetailed with ATV use. Active timber-cutting operations or environmentally sensitive parcels would require separate analysis.

Does the watershed/conservation clause have teeth?

Yes. County Law § 219(1) requires that reforested-lands use remain consistent with forest and wildlife conservation and watershed protection. The AG specifically directed that trail preparation must be "limited in scope and carefully planned" and that the County must comply with environmental statutes. A trail system whose construction degraded watershed function would exceed the statutory authority.

What about Article 14, § 3(1) of the N.Y. Constitution?

That constitutional provision protects certain forest lands. The AG mentioned it via Op. Atty. Gen. No. 90-F1, primarily as a reminder of the broader conservation principle that operates alongside § 219(1). The specific reforested lands at issue may or may not be Article 14 protected; the County's environmental review should determine that.

Can the county charge an ATV user fee?

The AG did not analyze fees in this opinion. VTL § 2405(2) does say a municipality "may charge a fee for use of ATVs on such public lands" (distinct from the snowmobile rule analyzed in Op. Atty. Gen. No. 2000-16, where Parks Law § 25.09 forbids access fees). Counties planning to charge ATV fees should confirm authority under § 2405(2) and any applicable local-law procedures.

Background and statutory framework

County Law § 219(1) authorizes counties to purchase, acquire, or accept by gift lands for reforestation, with the land devoted to watershed protection, oil and gas retrieval, timber production, "and for recreation and kindred purposes." The statute expressly limits the uses to those enumerated.

Vehicle and Traffic Law § 2405(2) lets a governmental agency or municipality designate "appropriate public lands, waters and properties other than highways" as open to ATV travel, and lets the agency impose restrictions and conditions, including travel on designated trails, hours of operation, and other safety regulations. The agency may not require the ATV operator to hold a motor vehicle operator's license. The provision also lets a municipality charge a fee for ATV use of those public lands.

N.Y. Const. Art. XIV § 3(1) addresses State-owned forest lands. ECL § 9-0501(1) addresses State forest reservation. The AG cited both as part of the broader conservation principle.

Environmental laws applicable to trail construction include ECL Article 11 (fish and wildlife/endangered species), Article 24 (freshwater wetlands), Article 17 (water pollution), and Article 15 (use and protection of waters).

Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48 (1972), is the controlling Court of Appeals case on private use of municipal public property. A municipality cannot divert public-use property to wholly or partially exclusive private use without specific legislative authorization, and the legislative sanction "must be clear and certain."

Citations

• County Law § 219(1) (county authority over reforested lands; recreation; oil/gas leases).
• Vehicle and Traffic Law § 2405 (general ATV regulation).
• Vehicle and Traffic Law § 2405(2) (municipal authority to designate ATV lands and impose conditions).
• N.Y. Const. Art. XIV § 3(1) (state forest land protection).
• Environmental Conservation Law § 9-0501(1) (State forest reservation).
• Environmental Conservation Law Article 11 (endangered species).
• Environmental Conservation Law Article 15 (stream disturbances).
• Environmental Conservation Law Article 17 (water quality).
• Environmental Conservation Law Article 24 (wetlands).
• Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48 (1972) (municipal property held for public use cannot be diverted to exclusively private use without specific legislative sanction).
• Op. Atty. Gen. No. 90-F1 (forest land conservation principles under Art. XIV § 3(1) and ECL § 9-0501(1)).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2002-1_pw.pdf

Original opinion text

N.Y. CONST., ART. XIV, § 3(1); COUNTY LAW § 219(1); ENVIRONMENTAL CONSERVATION LAW § 9-0501(1); VEHICLE AND TRAFFIC LAW § 2405. A county may authorize the use of all-terrain vehicles on County-owned reforested lands held for public use and may authorize construction of a trail system on such lands, provided that such use is consistent with forest and wildlife conservation and watershed protection, but may not grant a private organization of all-terrain vehicle owners exclusive use of the trail system.

January 7, 2002

Daniel J. Guiney, Esq.
County Attorney
County of Allegany
County Office Building, Rm. 213
7 Court Street
Belmont, New York 14813

Informal Opinion
No. 2002-1

Dear Mr. Guiney:
You have asked whether the County of Allegany ("the County") may authorize the use of all-terrain vehicles ("ATVs") on County-owned reforested lands. Assuming the County may do so, you also ask whether the County may allow a private organization of ATV owners to construct a trail system on such lands and grant the private organization exclusive use of the trail system. You explain in your letter that the construction of a trail system would involve some brush cutting and changes in the landscape of the reforested lands. Pursuant to County Law § 219(1), the board of supervisors of a county has the power to "purchase, acquire or accept by gift lands for purposes of reforestation and/or lease for the purpose of aiding in discovering and removing oil and/or gas from such reforested land and adequately plant, fence and otherwise maintain said lands for purposes of watershed protection, development of oil and gas retrieval, the production of timber and forest products and for recreation and kindred purposes. The title of the lands so acquired shall be vested in the county and such lands shall be forever devoted for the purposes aforesaid and no other." County Law § 219(1) does not define the phrase "recreation and kindred purposes" or otherwise limit the scope of that term. Vehicle and Traffic Law § 2405(2) states that: A governmental agency other than a municipality, by regulation or order, and a municipality, by ordinance or local law, may designate any appropriate public lands, waters and properties other than highways under its jurisdiction as a place open for travel by ATVs upon written request for such designation by any person, and may impose restrictions and conditions for the regulation and safe operation of ATVs on such public property, such as travel on designated trails and hours of operation. In addition thereto, such agency or municipality may not require the operator of an ATV to possess a motor vehicle operator's license. A municipality may charge a fee for use of ATVs on such public lands. (Emphasis supplied.) We conclude that when read together, County Law § 219(1) and Vehicle and Traffic Law § 2405(2) authorize the County of Allegany to designate county-owned reforested lands as open for ATV travel. The use of ATVs for recreation purposes is consistent with the authorized uses of reforested land set out in County Law § 219(1). Reforested lands would therefore appear to be "appropriate public lands" for ATV travel as required by Vehicle and Traffic Law § 2405(2). Your letter indicates that a trail system would be constructed on the reforested lands and that some brush cutting and changes in the landscape may be required. County Law
§ 219(1) authorizes the use of reforested land for production of timber and forest products, oil and gas exploration and recreation. Removal of a limited amount of brush and incidental landscaping in connection with construction of an ATV trail on reforested land would appear to be consistent with the preparation of the land for the above uses, and, therefore, consistent with the statute. We emphasize, however, that this use must be consistent with forest and wildlife conservation and watershed protection. County Law § 219(1). Therefore, the preparation of trails must be limited in scope and carefully planned to ensure compatibility with watershed protection and reforestation purposes. See Op. Atty. Gen. No. 90-F1, attached (discussing N.Y. Const., Art. XIV,
§ 3(1) and Environmental Conservation Law § 9-0501(1)). Also, in developing and maintaining trails, the county must comply with all applicable state and federal environmental laws, for example, Environmental Conservation Law, Articles 11 (endangered species), 24 (wetlands), 17 (water quality), 15 (stream disturbances). In addition, the municipality must ensure that ATV use does not interfere with availability of the trails for other public uses, such as skiing and biking. Regulation of ATVs may be necessary to ensure that trails are available to the general public for other uses. Finally, you ask whether the County could grant a private organization of ATV owners exclusive use of a trail system constructed on reforested lands. As discussed below, we conclude that such a grant would be unlawful. It is well established that a municipality may not permit property acquired or held by it for public use to be wholly or partially diverted to a possession or use exclusively private, without specific legislative sanction. See Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48 (1972). In the Lake George Steamboat case, the Village of Lake George agreed to lease to a private corporation a dock and related facilities on Village-owned land on the shore of Lake George. The corporation planned to operate sight-seeing boats from the dock. The instruments conveying the land at issue from the State to the Village clearly stated that the use of the land was restricted to "public park purposes" and for the erection of a dock "for the benefit of the Village." The Court of Appeals held that based on the language in the instrument of conveyance, it was clear that the Village received the lands for public use and held the dock in a public capacity. The lease to the private corporation diverted those lands and dock to exclusively private purposes without specific legislative sanction, and was therefore forbidden. There is no such specific legislative authority. County Law
§ 219(1) authorizes the County board of supervisors to lease reforested lands to private organizations for oil and gas exploration and removal purposes. The statute does not grant the County authority to lease the land for any other purpose. The Court of Appeals stated in the Lake George Steamboat case that the legislative sanction "must be clear and certain to permit a municipality to lease public property for private purposes" (30 N.Y.2d at 52). There does not appear to be any question that the reforested lands at issue here are held by the County of Allegany for public use. Thus, diversion of even a portion of those lands for exclusive use by a private organization of ATV owners for recreational purposes would be prohibited. We therefore conclude that the County may not grant a private organization of ATV owners exclusive use of a trail system constructed on County-owned reforested lands. The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours, JAMES D. COLE Assistant Solicitor General In Charge of Opinions By:_________ JULIE M. SHERIDAN Assistant Solicitor General