There are three basic types of laws that are intended to provide direction for citizens and organizations that do trail work: common law, statutory law, and agency law. All three types of law provide guidance and are responsible, to some extent, for why Michigan has been so successful in building trails. As noted above, the focus of this chapter is on Michigan’s statutory law, also referred to as the Michigan Compiled Laws (MCL).

• Common law is law made in the judicial branch (i.e., the courts) and helps interpret existing law as it applies to specific situations.
• Statutory law is law made in the legislative branch and is used to regulate behaviors and avoid harm from being caused.
• Agency law or agency rules and orders is the source of law that comes from the executive branch (e.g., regulatory agencies) and helps provide additional details and clarifications for how statutory law is applied in specific situations.

Michigan’s State Constitution prescribes that all three sources of law emanate from the citizens, and that citizens are empowered to hold these three branches or sources of law accountable for the actions they take. One of the reasons Michigan has such an effective set of laws regulating trail activity is because of citizen engagement and the important opportunities that citizens have to express their concerns and ideas to sources of lawmaking authority. Citizen input is vital to the proper planning, development, and management of trails. This is a central theme that will be further discussed throughout this course book.

Key Trail Legislation

Throughout the 1990s and into the 2000s, the Michigan legislature engaged in passing statutory laws that helped enable and grow the state’s trail network. This set the stage for trail expansion in later decades. As the popularity of trails became more apparent to the Michigan legislature during the early part of the 1990s decade, it became evident to key policy makers there was a need for a foundation of laws that would promote and regulate trail use. Key legislation was introduced to specifically support expanding the state’s trail network, to provide private property protection from exposure to recreational trespass, and to limit liability exposure for landowners, trail volunteers, and trail managers.

Embracing the importance of citizen engagement, the legislature also framed in the creation of citizen advisory councils to provide input to the Michigan Department of Natural Resources (DNR) and local governments as they worked to develop trails around the state.

Trail building and trail management activities can sometimes cause friction with adjacent landowners who have concerns about trespass onto their land. Typically, cases of trespass have been addressed in court by allowing landowners to seek remedies for intrusion onto their land. For example, they can seek compensation for damages or enjoin (i.e., prohibit) the activity. Trail managers also sometimes need protection from lawsuits arising out of the normal recreational use of land to help encourage appropriate trail management activities. For reasons such as these, the Michigan Legislature saw the need to specifically address protection for both property owners and those individuals and organizations that are working to manage and promote trails.

As pockets of early success with trail building occurred in various regions of the state, such as with the Betsie Valley Trail in northern Michigan and the Kal-Haven Trail in southwest Michigan, the legislature was prompted to address the basic question of how they could regulate trail user behavior to encourage responsible use, and at the same time build an expansive network of trails throughout the state. Passage of the Michigan Trailways Act, the Recreational Trespass Act, and the Recreational Use Act helped address these changing conditions.

Michigan Trailways Act (MTA)

Of these statutes, the MTA, sponsored by Senator Bob Geake of Northville, Senator Vern Ehlers of Grand Rapids, and Senator John Pridnia of Harrisville, was the most significant foray into trail legislation in the early 1990s. The MTA is a comprehensive package of legislation that contains key provisions to encourage responsible trail development. The act contains specific provisions that define the legislature’s intent that trails are to be regarded as a Michigan resource and are meant to serve a public purpose. The act also creates authority for the establishment of regional trail management councils, allows for the promotion and marketing of trails, the development and management of water trails, the creation a history-telling program, and provides specific rulemaking authority to the DNR.^[1]

Recreational Trespass Act (RTA)

The RTA was passed by the legislature to specifically address issues that had been occurring with trespass on private land for a host of recreational activities, including hunting, fishing, and trail use. This statute was designed to provide notice to those engaged in recreational activities that they are bound by law to respect the rights of nearby private property owners.^[2]

Violations of private property rights can subject violators to specific fines and penalties provided for in this statute. The law provides for both dollar fines and jail time and these penalties are increased for second and subsequent violations. In addition, property owners may also bring a civil cause of action for any actual property damages. The law also authorizes the county prosecutor to pursue charges and authorizes other local governments to pass similar laws to increase the potential for enforcement (MCL 324.73108 to 324.73111).

Landowners wishing to protect their property from trespass have some affirmative responsibilities that they must meet to comply with the statute, such as erecting fencing and signage, and maintaining or enclosing the property in such a manner as to exclude intruders. There are specific exemptions to trespass violations under the RTA, including activities such as fishing, wading, and the opportunity to retrieve a hunting dog that has moved onto another’s property (MCL 324.73102).

Landowner Liability/Recreational Use Act

Lawmakers also wanted to promote recreational uses of our lands and waters and provide appropriate protections for those owners and operators of trails and other land-based activities who provide for or support those activities. Landowners must still adhere to a basic standard of care in their actions and shall not engage in gross negligence or willful and wanton misconduct.^[3]

Part 733 of the Natural Resources and Environmental Protection Act (NREPA) provides that “a cause of action does not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose entering or exiting from or using a Michigan trailway… or other public trail, with or without permission, against the owner, tenant, or lessee… unless the injuries were caused by gross negligence or willful and wanton misconduct of the owner, tenant, or lessee” (MCL 324.73301[2] to 324.73301[4]).

Specific immunity from a cause of action is provided for organizations “other than those who operate for-profit” (MCL 324.73301[3]). The premise of the law is that for all those organizations that do not operate for profit, a cause of action for liability for damages is specifically exempted unless the injuries were caused by the gross negligence or willful and wanton misconduct of a person.

Since the law itself provides reference to the term “gross negligence and willful and wanton misconduct,” trail managers have attempted to frame in the specific definition of this type of conduct or activity. Throughout Michigan statutory law, the term “gross negligence and willful and wanton misconduct” is used to provide parameters for appropriate conduct such as in the State Emergency Management Act (Public Act 390 of 1976) and the Michigan Vehicle Code (Public Act 300 of 1949). The interpretation of this phrase is generally handled on a case-by-case basis in court, based on a consideration of a variety of factors.

Statutory Guidelines for Managing Specific Uses of Trails

Michigan policymakers have developed distinct categories of trails that allow for different types of uses. The state’s statutory trail law revolves around three main categories of trails: nonmotorized trails used by hikers, bicyclists, equestrians, walkers, and others; motorized trails used by snowmobile and off-road vehicle (ORV) operators; and water trails utilized by small boats such as canoes, kayaks, and paddle boards, and some motorized vessels. Each type of use is regulated by a specific set of laws.

Electric Bicycles

Of special note is the emerging use of e-bikes on trails. Current federal law defines an e-bike to be a motorized vehicle (43 CFR § 8340.0-5). Therefore, on many federal lands (e.g., those owned and operated by the United States Forest Service (USFS) and the National Park Service (NPS)), e-bikes are only permitted on trails that allow for motorized vehicles. In recent years, both the USFS and NPS issued policies that could facilitate the expansion of e-bike use on their lands (USFS n.d.; NPS 2023).

Michigan designates three classes of e-bikes (DNR n.d.a):

• Class One, where the motor provides assistance only when the rider is pedaling and ceases to provide assistance when the bike reaches 20 miles per hour (mph).
• Class Two, where the bicycle is equipped with a throttle and a motor that propels the bike, whether the rider is pedaling or not, until the bike reaches 20 mph.
• Class Three, where the motor provides assistance only when the operator is pedaling and ceases to provide assistance when the bike reaches 28 mph.

Currently, under state law, e-bikes are permitted only on improved surface linear trails and rail trails. E-bikes are not permitted on nonmotorized natural surface trails, such as those trails used for hiking, mountain biking, and equestrian trails. Exceptions to the regulations can be made on a case-by-case basis, where a local authority or agency of the state having jurisdiction over the trail may allow for the operation of an e-bike on that trail (MCL 324.72105).

E-bike use on Mackinac Island is an example of where e-bike use is carefully regulated on the local level as the authorities on the island have specifically prohibited e-bikes through local ordinance in accordance with state law. However, those individuals with a qualifying “mobility disability” are exempt in accordance with the federal Americans with Disabilities Act (ADA) and may obtain an e-bike permit from the island government to ride on the island (City of Mackinac Island 2023).

Equestrians

There are two key pieces of statutory law that specifically apply to equestrian trail use in Michigan: The MTA and the Equine Activity Liability Act.

The MTA defines where equestrian uses are permitted on public lands managed by the DNR and also prescribes a process that must be followed to restrict equine use on DNR-managed lands (see MCL 324.72115). The MTA also created the Equine Trails Subcommittee (ETS), which is a citizen advisory group to the DNR that provides guidance and recommendations on the state’s network of equestrian trails (see MCL 324.72110a).

The Equine Activity Liability Act (Public Act 351 of 1994) stipulates that an equine sponsor or equine professional is “not liable for an injury or death of a participant or property damage resulting from the inherent risk of an equine activity” (MCL 691.1663). This law helps provide liability protection for equine-related trail activities and carefully defines what is meant by the terms “equine sponsor, equine activity, and engaging in an equine activity” (MCL 691.1662). There are also important conditions under which liability is not provided primarily driven by the awareness of a “dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person in for which warning signs are not conspicuously posted” (MCL 691.1665[c]).

Off-road Vehicles

The Michigan Off-Road Vehicle Act is found in Part 811 of the NREPA.^[4] This statute provides guidelines for the operation of ORVs on state land, as well as the development and maintenance of the state’s ORV trail network. The key provisions of this act include:

• The licensing of ORVs
• The creation of the off-road vehicle account
• The requirement for a comprehensive plan for ORV use, or activity using certain areas, routes, and trails
• The requirement for an ORV safety education course
• Authorization for rules governing the operation and conduct of ORVs

An ORV must be licensed with the DNR except under the following circumstances: it is being used exclusively in a comprehensive program for training, it is being operated solely on private property, or it is being operated on a free ORV-riding day (i.e., a day when the state specifically provides for free ORV riding as a way to introduce new users to the activity). In addition, an ORV trail permit is required for operating an ORV on designated ORV trail routes, and special use ORV areas (MCL 324.81115).

The statute also creates the Off-Road Vehicle Account, which can be used for the following purposes (MCL 324.81117):

• Signage for the improvement, maintenance and construction of trails, routes, and areas
• The administration and enforcement of the statute
• The acquisition of easements, permits, or other agreements for the use of land for ORV trails, routes, or areas
• The restoration of any of the natural resources of the state on public land that are damaged due to ORV activities

The ORV Trail Improvement Fund creates a grant process to help distribute revenue for the purposes of planning, improving, constructing, signing, and maintaining ORV trails and facilities. These grants help supplement state-level funding for ORV activity by dispersing grants to public agencies and nonprofit, incorporated clubs and organizations (DNR n.d.b).

Snowmobiles

Part 821 of the NREPA provides guidelines for the operation of snowmobiles on state land as well as the development and maintenance of the state’s snowmobile trail network.^[5] Key components of this law include provisions for:

• The Michigan snowmobile advisory committee
• The certificate of registration and registration decal requirements
• The snowmobile, safety, education, and training program
• The snowmobile account and sub accounts and the uses of those accounts
• The requirement for a Michigan snowmobile trail permit
• The authorization to implement rules covering the operation and conduct of snowmobiles on state land

The Michigan Snowmobile Advisory Committee is authorized to advise the DNR regarding the development of criteria for safety education, allocation of funds, promulgation of rules, and the development of annual updates to a comprehensive plan for statewide recreation on the snowmobile trail system. The committee also works to aid in the implementation of the recommendations made by snowmobile users regarding trails. This committee is similar in function to the MTAC in that it is intended to be a body to both disseminate and take in public comment regarding the operation of snowmobiles on trails (MCL 324.82102a).

This statute also authorizes the creation of a certificate of registration and requires users to obtain a registration decal. A person who operates a snowmobile in Michigan is required to both register their snowmobile and purchase a snowmobile trail permit, which enables them to ride on state-designated trails, public roads, and public lands were authorized. In some cases, snowmobiles are exempt from the trail permit and/or registration requirements. For example, a certificate of registration or permit decal is not required for a snowmobile operated exclusively on land owned by or under control of the snowmobile operator (MCL 324.82103).

Michigan’s snowmobile program is completely funded by trail permit and registration dollars. These permit and registration revenues are deposited into the Snowmobile Account which is then split into two sub-accounts which fund trail improvement and trail easement activities, respectively. These funds support planning, constructing, maintenance, and acquisition of trails and areas for the use of snowmobiles in Michigan (DNR n.d.c).

Water Trails

The authorization for the development of a water trail system can be found within the Michigan Trailways Act. However, another significant statute that deserves to be mentioned here is Part 781 of NREPA, which created the Michigan State Waterways Commission and the State Waterways Account. The Michigan State Waterways Commission is required to act as an advisory body that makes recommendations on how to expend money from the waterways account. As such, it has the potential to play an integral role in helping fund and shape water trail development throughout the state.^[6]

The statute provides that money in the waterways account is to be used only for the following purposes (MCL 324.78110):

• Construction, operation, and maintenance of recreational boating facilities
• The acquisition of property or rights in property
• For grants to local units of government and state colleges and universities to acquire and develop harbors refuge and public boating access sites

This important funding source could conceivably help develop significant infrastructure that would complement the state’s existing water trail program.

Additional Trail Statutes

There are several other statutes that are integral to trail development and trail management in Michigan. The Michigan Natural Resources Trust Fund (MNRTF) is expressly authorized in Michigan’s Constitution, with Article IX, Section 35 establishing the fund for purposes of the development and management of the state’s natural resources. The MNRTF is a grant-based program that is administered by the DNR and the MNRTF Board and provides grants for trail development and land acquisition along with other conservation-based funding purposes (see Part 19 of NREPA; MCL 324.1901 to 324.1911).

Michigan law has also enabled efforts to authorize a local “adopt-a-trail” program that allows for volunteer groups to assist in maintaining and enhancing trails on state land. This program is similar to several other “adopt-a-resource” programs that have helped enable and encourage citizen volunteers to assume management responsibilities without concern for certain types of liability exposure (MCL 324.72105).

References

City of Mackinac Island. February 18, 2023. “Are E-bikes Allowed on Mackinac Island?” Mackinacisland.org. Accessed March 13, 2024. https://www.mackinacisland.org/blog/are-e-bikes-allowed-on-mackinac-island/

Michigan Department of Natural Resources (DNR). n.d.a. “E-bikes in Michigan.” Michigan.gov. Accessed March 13, 2024. https://www.michigan.gov/dnr/things-to-do/hike-and-bike/ebikes

———. n.d.b. “ORV Trail Improvement Fund.” Michigan.gov. Accessed March 14, 2024. https://www.michigan.gov/dnr/buy-and-apply/grants/rec/orv-trails

———. n.d.c. “Purchase permit, learn requirements.” Michigan.gov. Accessed March 14, 2024. https://www.michigan.gov/dnr/things-to-do/snowmobiling/permits-and-requirements

———. n.d.d. “Pure Michigan Trails.” Michigan.gov. Accessed March 13, 2024. https://www.michigan.gov/dnr/places/state-trails/pure-mi-trails

Michigan Legislature. March 30, 1995. “Equine Activity Liability Act: Act 351 of 1994.” Accessed March 13, 2024. http://legislature.mi.gov/doc.aspx?mcl-Act-351-of-1994

———. October 15, 2001. “State Transportation Preservation Act of 1976.” Accessed March 14, 2024. http://legislature.mi.gov/doc.aspx?mcl-act-295-of-1976

———. n.d.a. “Part 19: Natural Resources Trust Fund.” Natural Resources and Environmental Protection Act (NREPA) (Excerpt): Act 451 of 1994. Accessed March 14, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-I-19

———. n.d.b. “Part 20: Michigan Conservation and Recreation Legacy Fund.” NREPA (Excerpt): Act 451 of 1994. Accessed March 14, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-I-20

———. n.d.c. “Part 721: Michigan Trailways.” NREPA (Excerpt): Act 451 of 1994. Accessed March 13, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-III-4-1-TRAILWAYS-721

———. n.d.d. “Part 731: Recreational Trespass.” NREPA (Excerpt): Act 451 of 1994. Accessed March 13, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-III-4-1-RECREATIONAL-TRESPASS-731

———. n.d.e. “Part 733: Liability of Landowners.” NREPA (Excerpt): Act 451 of 1994. Accessed March 13, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-III-4-1-RECREATIONAL-TRESPASS-733

———. n.d.f. “Part 781: Michigan State Waterways Commission.” NREPA (Excerpt): Act 451 of 1994. Accessed March 14, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-III-4-4-GENERAL-781

———. n.d.g. “Part 811: Off-Road Recreation Vehicles.” NREPA (Excerpt): Act 451 of 1994. Accessed March 14, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-III-4-6-OFF-ROAD-RECREATION-VEHICLES-811

———. n.d.h. “Part 821: Snowmobiles.” NREPA (Excerpt): Act 451 of 1994. Accessed March 14, 2024. http://legislature.mi.gov/doc.aspx?mcl-451-1994-III-4-6-SNOWMOBILES-821

National Park Service (NPS). February 15, 2023. “What They Are Saying – National Park Service Announces Policy for Electric Bicycle Use in National Parks.” Doi.gov. Accessed May 14, 2024. https://www.doi.gov/pressreleases/what-they-are-saying-national-park-service-announces-policy-electric-bicycle-use

United States Forest Service (USFS). n.d. “Electric Bicycle Use.” Fs.usda.gov. Accessed May 14, 2024. https://www.fs.usda.gov/visit/e-bikes