Vermont Legislature SmartTranscripts:

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[Sen. Andrew Perchlik (Acting Chair)]: So this is Senate Transportation and it is Friday And the twenty fourth of we are here to talk about S261. A It's little unusual because we don't have the bill here, but there's a little cross relationship. I thought we would start with a statement from the sponsor of Phil, who is a member of this committee. And then we will go into, we have a number of people to testify and multitrified.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Yes.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Thank you, Chair. So yes, am one of the sponsors and Senator was in this committee and she presented the bill and I wanted to let you know why we sponsored this bill. We individually had constituents who requested legislation that would allow the ability to have more trails, pedestrians can buy trails with railroads if at all possible because that has been done in other places. And that's purpose of the bill is to increase access and other states, my constituents heard from folks in Massachusetts, her constituents are Vermonters who have worked in Burlington and other parts of the state on trails. So that is the purpose of this language, We'll see where we get to, but I'm glad we're having the conversation. It'd be great if we could work, finish it now, I don't know if that's possible, but at least we can tee it up for the future because this is something that many of our constituents are wanting and as you already know, trails are a great economic development driver.

[David Mickenberg (on behalf of Vermont Association for Justice)]: So thank you.

[Sen. Andrew Perchlik (Acting Chair)]: At this point, I did get a request from Dylan to go reverse, so if no one minds, Dylan.

[Dylan Zwicky (Leonine Public Affairs)]: Thank you, mister chair, for committee members. For the record, Dylan Swickey with Leon and Philip Affairs. I'm not here today on have any one particular client, but I do work with a number of entities that are are in the utility and telecommunications space and, appreciate the sort of intent behind the bill. The more we think about this, I mean, it's it's kind of an interesting question. Typically, the and property owners are are not always on the same side

[Sen. Andrew Perchlik (Acting Chair)]: of

[Dylan Zwicky (Leonine Public Affairs)]: liability questions. Often, we're we're sort of arguing for less liability. But I think on this one, so you'll hear from, mister Bickenburg, we we may be aligned on this. The more we think about this bill, the more questions are raised. And I think there are five or six kind of key areas where there are open questions and areas concerned. The first is, you know, I think that the immunity is a little bit illusory. It doesn't actually solve the liability challenge that it's purporting to to address. There is a a will for will for a wanton misconduct exemption in the statute. I I do think that there is a difference between, for example, a a gas line or a charge power line and a hole in a field in terms of kind of the danger that we're we're talking about. And just because the limitation there's a limitation on liability does not necessarily mean that entities in the utility corridor are gonna be exempt from being a subject of a complaint. You would still need to litigate that complaint. It may be under a different standard. That is gonna come with a cost. And that cost, especially for entities that are regulated and the system flow through to consumers. So think about your electric or gas bill, that's gonna be an an upward pressure. The second piece on the liability question is that it would not, in my reading at least, not prevent preempt federal claims. So many of these entities in the utility space, in addition to our state regulators have federal regulatory partners. So National Energy Regulatory Commission, the Federal Energy Regulatory Commission, there's a similar kind of clarification board for ICON safety. So all of those look at some of the facilities that might be in these utility corridors. And I'm not sure whether that would sort of solve the liability question on that front. The second is, as I mentioned earlier, the distinction between a kind of a hole in a farm field or a gate across class a four road, for example, is different than, what is essentially an industrial activity. We're talking we're not talking about farmland or or wood lots of ponds. We're really talking about high voltage, inductors, ferry pipelines, pad now transformers, communication sites. So to put them under the definition of land, is I think confusing two fundamentally different, risk profiles. Third, I think that the definitions are somewhat loose, when you think about utility corridor. As far as I can able to tell, there's no realistic definition of utility corridor in Vermont statutes. And so you could think of sort of the right away along the the roadside or or along a, an existing walking path, that might be an easement or right away. There's also larger might larger transmission corridors. Those are two kind of fundamentally different questions. And I think just with warrant, really fine tuning discussion about what we're talking about here. Adding to that complication is utilities don't always own the corridor. They might have easement. They might have some other arrangement. And so that further complicates the liability question. As I touched on earlier, the the insurance and repair consequences and commercial generally general liability policies are generally priced on disclosed exposure. Recreational public access across miles of corridor is I think materially different exposure than it flows kind of industrial right away. So I would anticipate seeing premium increases. I mean, those are gonna flow through to regulated entities customers. Many utilities carry large self insured retentions, and statutory immunity doesn't reduce the self insured retention exposure. It just means that the claims are litigated under a different legal theory. So all of this was through to the rate payer. And I think you would really wanna hear from some of the insurers that might provide this type of coverage, how they would look at this and assess the risk and how that would translate into the policy coverage and rates. Another consideration that we think about when we think about other kind of recreational activities in in the utility space is, utilities are always performing routine vegetation maintenance to make sure that trees aren't falling on power lines. That means, interaction between our employees and whether it's bikers or hikers that might be in this path that creates, complications. There's storm recovery. We're going to go in after a major storm event and and clean up. And so it is just generally simpler to make sure that that the utility quarters aren't being used for those express purposes. And liability is just one question there in addition to a host of other questions about access and timing and how those competing uses, are are going to interact. And and the last thing is I think liabilities is just one piece of the puzzle. Right? It's all well and good to to limit liability or to relieve liability. But if there is an instance where an individual is harmed, you know, we're still gonna have potential legal challenge there that's gonna have to be litigated. And then there's just the pure kind of public perception of entities, for example, that I work with that, really don't it's a real challenge. Right? Some someone's walking through a utility corridor and and is hurt, then the perception that the company is somehow not liable for that, it's just a very it's fraud. It can can be a really serious harm. And so I think there's just so many open questions about the impact that this would have, on regulated entities in Vermont. Appreciate the intent, but I think it's a very significant question. So I'll just leave it there. I'm happy to make sure. I think both of you have my contact information, but whenever you want to talk about issues pertaining to utilities always happy to chat and think through what this might look like in the future. Go ahead.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Thank you. That was very comprehensive. Are you able to provide just a statement so that when we work on this more we'll understand better and obviously you'll need to be part of the process?

[Dylan Zwicky (Leonine Public Affairs)]: Sure, yeah I can provide kind of those areas that we'd want

[Sen. Andrew Perchlik (Acting Chair)]: to think about. Thank you. Thank you. I know you give us just the very high outline of the bill. Sure. And then we'll go into the rest of it.

[Damian Leonard (Office of Legislative Counsel)]: Morning from the record. I'm Damian Leonard from the office of legislative council. So the bill in front of you is s two sixty one. And what it proposes to do is it proposes to amend the definition of land in our recreational use statute. Recreational use statutes are a subset of statutes that were adopted to provide landowners who opened up their land to public use for recreational purposes with limited liability if they did so for no charge. So they're adopted in a number of states. And currently in Vermont's statute, land includes open and undeveloped land, including paths and trails, water, including springs, streams, rivers, ponds, lakes, and other water courses, fences, and structures and fixtures used to enter or go upon the land, including bridges and walkways. It does not include areas developed for commercial recreational uses, equipment, machinery, or personal property, or structures and fixtures that are not otherwise described. The statute then goes on to provide that an owner shall not be liable for property damage or personal injury sustained by a person who without consideration enters or goes upon the owner's land for recreational use unless the damage or injury is the result of the willful or wanton misconduct of the owner. In other words, unless the owner intentionally engages in misconduct intended to harm the user. The statute does also provide additional protection for equipment, fixtures, machinery, or personal property, meaning that unless the damage or injury is again the result of a willful or wanting misconduct of the owner, an owner shall not be liable for property damage or personal injury sustained by a person who without consideration and without actual permission of the owner enters or goes upon the owner's land for recreational use and proceeds to enter upon or use equipment machinery or personal property or structures or fixtures that are included within the definition. So it essentially is insulating landowners both for if they open up their undeveloped lands or the paths and bridges, fences upon their lands for people to pass through and cross into the land. And it also protects them if without their permission, someone then moves off the path and enters a building or goes onto a tractor or something like that. The bill in front of US two sixty one would add to the definition of land, railroad property, railroad rights of way and utility corridors, which public access is permitted. And so this was based on chapter 21, section 17 c of Massachusetts laws, which includes provides that a person having interest in land, structures, buildings, and equipment, including railroad and utility corridors, easements, rights of way, wetlands, etcetera, who lawfully permits the public use for recreational conservation, scientific, etcetera, without imposing a charge or who leases the land for such purpose to the state or a political subdivision of the state shall not be liable for personal injuries or property damage in the absence of willful, wanting, or reckless conduct by the owner. So, in Vermont, there's some cases on this. In general, they've found that, if the object that caused injury wasn't placed there with the intent of harming the individual, that the landowner is freed from liability. So examples are a fence in a cemetery that an individual climbed a tree and then fell on the fence. The fence was not there for a as part of walking misconduct. It was there to create a boundary around the cemetery. An individual who was riding their ATV down a farm trail that was actually not open to the public and hit a chain that was across the trail to and then flagged to keep people out. The farmer wasn't liable. And then the third instance was a homeowners association. They they have a road to the beach that was open only to members of the homeowners association, and they were found not liable because it wasn't open to the public. Or if they were found not to be under the cover of the statute, excuse me, they were potentially liable. They were found not to be protected by the statute because it wasn't open in public. So you can kinda see the difference there. Private use, not covered by this. Public use per charge. So going to, like, Kingdom Trails or Bolton Valley, not covered by this. But public use for no charge. So a trail network's in your town where the landowner has provided an easement and doesn't charge for use of the trail with the cover. And this would add railroad and utility rights of way to that. So I think I've run my five minutes unless you have questions.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Yeah. I will have questions at some point.

[Sen. Andrew Perchlik (Acting Chair)]: Yep. At some point. I wanted to get a little outline. Yeah. You. David? Good

[David Mickenberg (on behalf of Vermont Association for Justice)]: morning. David McEmere Berg here on behalf of Vermont Association for Justice. Just to be clear at the outset, we do have serious concerns with S-two 61 and we'll propose it this time. So just a little background on, we're really focused on the, when we talk about access, the access to civil justice for people who are innocently injured by the negligence of others. When somebody is is by the dangerous or responsible actor, dangerous or responsible actor, they face damages in the form of medical bills, lost wages, pain and suffering. And the question we have here is not whether those costs are going to be borne by something, but instead who they will be borne by. So oftentimes when we're talking about these liability issues, think that sort of, oh, we'll just reduce somebody's liability, somebody gets injured, and somehow magically they're suffering and their bills are going to go away. That is not the case. The real question is, is it going to be borne by the entity that caused the harm, the negligence or will be borne by the taxpayers in the form of Medicaid and our social safety net. So we take issues around limiting liability very seriously, and this bill is pretty extreme version of limitations on people's access to court. So the companies that we're talking about today specifically as opposed to landowners and that you are considering this bill immunizing from responsibility are corporations that can and should be expected to undo have insurance in place to take care of people who are hurt by their actions. In this case, S two sixty one says that a matter of law, it would be okay for railroad or utility to act with extreme disregard for safety, sort of the willful and wanted standard that Damian was just addressing, which could cause an innocent person injuries. And their insurance in most cases would be off the hook entirely. This is a really bill about access to justice. If we're concerned in terms of accessing rail trails about frivolous claims or the impetus for this bill is about frivolous claims, Vermont already has a pretty tight civil, very tight civil justice system in which frivolous claims are often dismissed. So for instance, we have in Vermont, like many places, Rule 11, civil procedure, which allows judges to sanction attorneys that file baseless claims. Again, Vermont is somewhat unique in addition in protecting personal injury defendants because Vermont is one of the few states in the country that has very high standards for jury verdict. So to reveal, a plaintiff must convince all 12 jurors that they've proven their case. All but a few other states allow non unanimous civil verdicts or have a much smaller number of jurors to convince. This means a real voter or utilities, defendant's insurance only need to get one out of 12 votes to prevail. The results in Vermont is that we have one of the least litigious states in the country. So one of some of the questions that I think you might want to consider before taking up this bill further is questions about how many claims have been paid to insolently hurt individuals on the lands of utilities or railroads. What types of due care are they taking in terms of protecting individuals that may be accessing Rhode What's the cost of the insurance? How much, sorry, what are the safety practices that are in place to ensure that no one will get hurt on the lands? How do the utilities and the railroads handle what's known as an active an attractive nuisance on their land? So, attractive nuisance is something that a child or somebody would be attracted to and want to go toward and potentially injure themselves. What would the cost shift, and I think this is one of the most important issues is what would the cost shift look like? How much would Medicaid, Medicare, other health insurers, our social safety net have to take if somebody was seriously injured on the property of a utility or a railroad and did not have access to the civil justice system because of this extremely high standard. And so I think before moving forward with this bill, there should be the answers to those questions. And generally, we just oppose creating barriers to people having their cases heard in court. And we don't think that while well intended to access, you know, for recreation purposes, we don't think limiting liability is the avenue to do that. And when you do that, do that, when when the liability is limited, there are serious consequences for injured waters. And understanding what those consequences are and who will ultimately be responsible for them, I think is critical in this conversation. Go ahead.

[Sen. Rebecca “Becca” White (Vice Chair)]: And I apologize for coming in late. So maybe it was someone's already given this, but can you give me an example? I guess I'm I'm confused. So, like, I've heard an example of someone has an unmanned or unsecured fence for their railroad and then someone, a child, worst case scenario, walks through and gets hit by a train or gets injured by the train, would they still have line would the railroad companies still have to compensate or cover with this or are you like, what's an example you're talking about?

[David Mickenberg (on behalf of Vermont Association for Justice)]: Well, the unless the railroads or the utilities behavior is essentially intentional, then they would be barred from recovery.

[Sen. Rebecca “Becca” White (Vice Chair)]: Okay, so like unless they said we are purposefully not putting up a fence or we have purposely decided to let

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: this fence go to whatever?

[David Mickenberg (on behalf of Vermont Association for Justice)]: Well the example, well I think a better example is what if they were unintended, there was a hole that they were working on Okay. And it wasn't intended to harm somebody. Yeah. Somebody is recreating in the in the property, they fall in the hole, they hurt themselves. But the hole what they were negligent in the hole. There wasn't signage put up. There wasn't, they were doing work and it wasn't. So the standard of care was breached for negligence. Under this scenario, under this legislation, the injured individual would not be able to recover because it wasn't willful in one behavior. So yeah. So this is this this goes to the most extreme level of liability protection inoculates somebody from from negligence, which is the basic standard that we expect all people to behave the standard of care under the circumstances. We would want somebody to exercise due care to prevent harm. And so this, under the scenario somebody would not be able to recover.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Interesting, thank you. So, I presume that you're fine with or maybe you're not the existing way that we identify property owners. That was good. Believe it's just regular property owners.

[David Mickenberg (on behalf of Vermont Association for Justice)]: Yeah, I mean somewhat I think it's somewhat different because those are individuals not corporations that have insurance to cover and also the nature of the property here. We're talking about railroads

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Right, and that's what I'm thinking. It's why you don't want that to be in this list. You know if, I mean some of the, we have a lot of trailers right, so are there instances where people are having accidents and not getting compensated for it? Is someone tracking that?

[David Mickenberg (on behalf of Vermont Association for Justice)]: Yeah, we don't, I could check with some of the attorneys that we work with.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: That would be helpful to know.

[David Mickenberg (on behalf of Vermont Association for Justice)]: There were a few cases that that Legis Council just mentioned where people were denied as under the underlying statute, none of it Yeah. Were denied recovery as a result of this statute. And I know I wasn't here for it, but I know that this issue around limiting liability for access to land for private landowners was a huge issue and law for debate. Oh yeah.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: No, was likely. No, this

[David Mickenberg (on behalf of Vermont Association for Justice)]: is what we're talking. I'm talking like thirty years ago.

[Sen. Rebecca “Becca” White (Vice Chair)]: I assume you're referring to public transit.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: That's what I thought. Yeah, we talked about that a lot. So let me just The

[Damian Leonard (Office of Legislative Counsel)]: underlying statute was enacted. Thirty something. But yeah, the public trails discussion last year

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: touched on supplier issues. So just one other question, would you feel more comfortable if the liability was somewhere between what's proposed here and what doesn't exist now, basically?

[David Mickenberg (on behalf of Vermont Association for Justice)]: I mean, general rule is that we think that people should act within the standard of care, is negligence, you know, which is a basic level of, you know, a reasonable standard of care. Okay. And I haven't heard, and, you know, I was in Senate Judiciary when this bill came up, I haven't heard that the sort of reason why we need to limit people's access to the civil justice system to have trails. The part And of it, you so I think what what, you know, insurance is a great tool and if people want to get insured to insure themselves against claims, then that's a good thing. Can work that within that system. I don't think we need to limit people's to the courts to do that.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Alright, that's good to know. If you can stay for the whole testimony that would

[Dylan Zwicky (Leonine Public Affairs)]: be great.

[David Mickenberg (on behalf of Vermont Association for Justice)]: To hear more. Thank you. Thank you. Thanks so much. The chairman, members of the city,

[Peter Young (General Counsel, Vermont Rail System)]: for the record, Peter Young, general counsel for Vermont Rail. I appreciate you allowing us the opportunity to testify on s two sixty one off the railroad's perspective here. We do not come and see this as an issue about liability legal liability. We see this as presenting a real safety concern for the railroads, likely with utilities for the same reason identified earlier. This is not language that we've looked for. We don't see the language in this bill as necessary or appropriate. And in fact, we see this as presenting a real safety concern if it in any way encourages members of the public to look at railroad tracks, bridges, rights of ways as a place where they should be allowed to recreate for any reason. From the railroads perspective, you know, we have trains in some of these railroad tracks, Amtrak, moving at relatively high speeds. Freight trains move faster and quieter than many members of the public or folks out in the area expect. And we spend a lot of time, effort, and work closely with, for instance, Operation Lifesaver and others to promote safety in and around trains. You mentioned children in your example. Operation Lifesaver spends a lot of time and effort in the schools teaching children about safety and staying away from the tracks and the danger presented. Exactly for some of the reasons you mentioned. The children, adults also, are very intrigued by the trains. They like to get up close. They like to see what's going on. That's a danger. We see that as a very high risk activity. And it's not just for the risks of the members of the public who are out, but it also has a significant impact on training crew. As you all know, locomotive engineers can't turn the train to avoid a hazard, whether it's on the track, whether it's a person. And very often, there's no such thing as a quick stop. And most likely, there's going to be a collision, an impact, and the likelihood of salinity is very high. And that's not just because of the trains, which run on the freight lines, not always with a consistent schedule, but there is also railroad maintenance equipment, high rails, but also vegetation equipment that's out there with cutting and maintaining the right of way. We have other equipment out there at all times. We, speaking for Vermont Rail, we operate year round in all weather, all times of day, and it's why when Operation LifeSaver is out of the community, the message to the members of the public are, see trash, think train. We do not see anything that would encourage the public to consider railroad tracks or a railroad bridge or a right of way to be a safe place or an appropriate place to spend any time. We work closely with contractors, municipalities to make sure that whenever there's any construction work anywhere nearby, whether that crossing or a culvert or track work, that we have appropriately trained contractors with insurance, that our dispatch is aware, that we are able to notify train crews. There are signs that are allowing people to call in case of emergencies. We have people on the tracks providing flagging services. All of this goes to focus on keeping people safe. So it's not just about whether or not somebody is killed, whether the railroad will have to make a payment. That's not really a purpose. Having people out on the right of way puts them at risk. Anything that would encourage them to be out there, except in very structured limited circumstances, we think is not consistent with safe operation of the railroads. Going even beyond that, something that most members of public aren't thinking about, is it's not just the area directly on the premise. Railroads move wide lobes. Railroads often have a wider impact along the right of way when a crane goes by. So it is not simply okay to step back eight feet from the edge of the track so you can get a nice, close rush when the crane goes by. Those, that's a threat. That's a real threat to the public, whether it's children or adults, or somebody who's out wearing earphones on the track. Nationwide, there are far too many fatalities on a very regular basis from people who do not treat the cracks as the threat they should. So from our perspective, to minimize fatalities, minimize the impact on the train crew and the operations, and minimize the risk of derailments that come from efforts to have a sudden stop at the company along those lines. We do not favor anything that's going to encourage public access in the right of way. We are always happy to have conversations all the time with folks who are interested in having access, crossing agreements, things like that, and would gladly be part of any conversations. But we would not like to see February move forward. Yeah. Just had discretion with that.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Go ahead. Thank you, mister.

[Sen. Rebecca “Becca” White (Vice Chair)]: So, I appreciate that and if I'm understanding the purpose of the bill correctly, it's to help create and allow for park at least two different locations or recreation areas to be filled. So if it's not the removal of liability that's holding back these projects, what is?

[Peter Young (General Counsel, Vermont Rail System)]: I'm not aware of specific projects that

[Dylan Zwicky (Leonine Public Affairs)]: are

[Peter Young (General Counsel, Vermont Rail System)]: involved. As I said, there are certain opportunities where there's a structure there's a structure in place for responsibility, for public, for access, egress, that there's ways to do that.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Okay.

[Peter Young (General Counsel, Vermont Rail System)]: What we don't wanna do is give people encouragement that, you know, oh, this says railroad structures are okay to use. Well, there's a lot of bridges over waterways. We already have, fishing season, people will look at bridges as a way to access a favorite fishing spot as a shortcut. That is not safe, and we do not wanna see it, and and, you know, the movie Stand By Me notwithstanding, that's done more damage, probably to the idea of what a great way to shortcut through the woods than anything else. So disrespect to the movie greatness. But we really wanna emphasize, it's for the public and for those who are out there, that seeing tracks is not an invitation for a shortcut or a hiking trail or a fishing access, that it really is a place to stay away from. So in this context, anything that would encourage recreational use or people to believe they had recreational use is our concern. It's a safety issue from our point of view and not really the issue

[Sen. Andrew Perchlik (Acting Chair)]: of the liability behind those children. Yes,

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: well and this committee has been talking about safety all year and we're gonna keep talking about safety. So just a couple of things. Folks, there are places where rails and trails do work together. It's not easy to do and so this we will be having more conversations, but it does happen, it can happen. There are situations in some cases it's better to have something be used properly and intentionally rather than have people on the right of way, Randall,

[Sen. Andrew Perchlik (Acting Chair)]: right, or

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: without controls. Mean, has happened.

[Peter Young (General Counsel, Vermont Rail System)]: We don't disagree. With a structure in place with the appropriate parties involved, it is possible, not always, but it is possible in some locations to have that kind of context and put that in place. And there are places. Yes.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Right. But it has to be deliberate and it has to be you know, it's a process. It's it's not easy, but it is possible.

[Peter Young (General Counsel, Vermont Rail System)]: Yes. And it is very particular to the land available. Sure. If, you know, then it depends on the width of the right of way, which historically varies in a lot of different places. And that's why we're always looking we're always able to pick up the phone, call, or answer a call, and discuss when people have particular questions or concerns about activities near the railroads. Right. But our our we start we we start a conversation always about safety

[Sen. Rebecca “Becca” White (Vice Chair)]: Of course.

[Peter Young (General Counsel, Vermont Rail System)]: For the public, for the train crew, and for the community.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: And we do too. I have just, there's something I've been wanting to talk to the railroads about that I just real You know those little blue signs? Yes. People don't know what those are. I talked to Which

[Peter Young (General Counsel, Vermont Rail System)]: blue sign?

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Okay. So at a railroad crossing there's a blue sign that has information on where if there's a problem like if there's a train stuck or car stuck on the track, that's yeah, they're about this big and people don't know what they are. So a project maybe could be to have larger signs so that and that's safe. If there's a problem, and I'm sure it's a federal regulation, it's probably already said it that sized, but from my experience, it's not as safe as it could be.

[Peter Young (General Counsel, Vermont Rail System)]: It's one of the things that, if you'll allow me a moment more, Mr. Chairman. It's one of the things that I know that comes up in driver education training classes that the state supports about safe operations near railroad tracks, operation lights, different things about that. They have a different official name. We call them blue signs. Yeah.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: I that's my note. Blue sign.

[Peter Young (General Counsel, Vermont Rail System)]: The FRA requires every crossing to have a very specific sign. Yep. And yes, size, type It's

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: about this big.

[Peter Young (General Counsel, Vermont Rail System)]: This big, every crossing, and it's gonna have a specific number to identify the crossing. Right. And a specific number that goes straight to dispatch at the train. Yep. So if you were at the at a at a crossing and there's a blue sign and you have an issue, you pick it up and you say, car is still coming across. And it goes straight to dispatch, dispatch radios, train crew in the area, and we know stop the train. Right. It doesn't happen in a heartbeat, but that train, that call goes twenty four hours a day to a monitored dispatcher, and that's there. And we do think that that's part of the messaging for the public, and it happens, and it happens plenty of times. People make those calls.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Make the signs bigger, please.

[Peter Young (General Counsel, Vermont Rail System)]: I would like to say yes, but I think the federal government is very particular on what is allowed.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: It might be at least this that might be so

[Peter Young (General Counsel, Vermont Rail System)]: We'll look into it for sure. But yes, that's on every nationwide

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: I know. Every process. Know. I I tell people about it. And generally, the people don't already know.

[Peter Young (General Counsel, Vermont Rail System)]: And I know it's in the in the driver education course because one of my kids came home and was like, hey. I'm good. Looking at the railroad, probably.

[Damian Leonard (Office of Legislative Counsel)]: That's right.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: He's alert to virus. Okay. So I'll I stop think we'll get the sign. Yeah. Yeah.

[Sen. Andrew Perchlik (Acting Chair)]: Other question? Thank you.

[Peter Young (General Counsel, Vermont Rail System)]: Thank you.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: And if you can stay to hear the others that

[Peter Young (General Counsel, Vermont Rail System)]: I will I I will let them.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Or or you

[Peter Young (General Counsel, Vermont Rail System)]: can I will try?

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Yes. Or you can look at the

[Sen. Andrew Perchlik (Acting Chair)]: record. Recording.

[Dylan Zwicky (Leonine Public Affairs)]: Yes. Go ahead.

[Sen. Andrew Perchlik (Acting Chair)]: You need know your name and from who you're representing and you're on.

[Rick Sharp (Friends of the Connecticut River Valley Trail)]: Okay. My name is Rick Sharp. I've been involved with a number of people in Southern Vermont, mainly from Bells Falls, Brattleboro about forming a group that we're calling Friends of the Connecticut River Valley Trail. And that is the idea to create a pedestrian pathway, pedestrian bike path from the mass border to Canada, along the Connecticut River up through there. So there was a study done by V Trans 2024, in which they surveyed all the towns along Route 5 corridor between the Mass border and Canada, and found that every town without exception along the way there is in favor of a pedestrian bicycle path along that corridor. So we are forming in order to try to move that along. There was a recommendation at the time that they form a steering committee to create that pathway. That steering committee has not been created to date. So we have formed Friends of the Connecticut River Valley Trail instead to try to move it along until the steering committee is put into place and we can get some progress on creating a trail. It is my opinion that we've we've looked along the mostly along the Connecticut River between Bell Falls and the Bass Border. And it's very obvious that a trail running through that area would have to work with Route 5 and the railroad as well. And in a lot of places that trail would run right alongside the railroad. And I heard the testimony of the gentleman from the railroad there earlier today. Certainly, we want a safe pathway, one in which people are not going to be wandering onto the tracks and getting hurt. So we certainly, you know, that's the number one thing is to have a safe pathway, but it will be necessary to be very close to the railroad at some points and very close to Route 5 as we figure out where exactly this goes. So we are in favor of the rails to trails, rails with trails legislation to allow that kind of trail to be created. And my bet is that without it, cannot be created. Although it's interesting to hear today that the railroad doesn't seem to want legislation. Maybe we talked to Craig Dellapenna about his experience in Massachusetts and why this type of legislation is necessary. Our legislation here really is modeled after the MAS legislation and the Maine legislation, both of which have passed enactments like this in order to get the railroads to allow trails right alongside the railroad. I'd also point out that there are a number of places here right now where icicle pass run right next to railroad tracks. Burlington is a perfect example of that. There's a chain link fence in between the railroad and the bike path for most of that distance but there are areas where you can a pedestrian can walk across the tracks down at Lakeside for instance. There's no control on it but there's a an opening in the fence that will allow you to go across the existing track. So, this has been done. We already have these situations going on. I'm not aware of any injuries that have occurred and I would suggest that before you make a final decision on this legislation, find out if there are problems with having individuals near railroad tracks, what have been the experience so far? Because my bet is that there are very few instances of that. In my opinion, this kind of legislation would be necessary to create the Connecticut River Trail that we're talking about and I'm hoping that you'll find a way to satisfy all the various different parties. We would certainly work closely with the railroad to do something like this, but I think it's time to to agree with the River Valley Trail. Thank you.

[Sen. Andrew Perchlik (Acting Chair)]: Thank you. Senator White.

[Sen. Rebecca “Becca” White (Vice Chair)]: Thank you, Andrew. Rick, it's lovely to see you on Zoom. Thank you for coming. I'm obviously a big supporter of rail trails and especially a Connecticut River Base Rail Trail. But I'm feeling like I'm having a bit of like disconnection between this bill resolving conflicts with the creation of that trail. So I look forward to hearing from mister. I'm wondering if the bill also includes utility companies is my understanding. I think we're hearing later from the utilities as well. Maybe I'm wrong.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: I heard earlier.

[Sen. Rebecca “Becca” White (Vice Chair)]: Oh, you did? Oh, sorry. So I'm wondering, can you we're talking a lot about rail, but there's also like gonna be power lines and everything. So are utilities also on this trail or kind of

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: why include them?

[Rick Sharp (Friends of the Connecticut River Valley Trail)]: I think there are utility lines running on near a lot of railroads and that stretch is almost 100 miles long from Mass to the Canadian border. So there are going be various different spots that you're going be near this railroad or that railroad or a utility. But what I would suggest that if you're very concerned about those kinds of things, what has been the experience to date? How many lawsuits have there been? How many negligence situations have there been with utilities or with railroads that have created injury to individuals? My benefit is extremely small. There isn't a lot of it. I have a hard time even imagining how the utility ends up being in a spot of negligence other than if they're trimming brush along the way or something and somebody gets into their equipment or something like that. That'd be the only thing that would say might result in some type of negligence.

[Sen. Rebecca “Becca” White (Vice Chair)]: So there are utilities and everything.

[Sen. Andrew Perchlik (Acting Chair)]: Questions? Thank you, Mr. Sheriff.

[Rick Sharp (Friends of the Connecticut River Valley Trail)]: Thank you.

[Sen. Andrew Perchlik (Acting Chair)]: Thank you very much. Craig, we're ready for you.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Think you're still muted. There you go. Alright.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Can you hear me okay?

[Sen. Andrew Perchlik (Acting Chair)]: We can.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Okay. Can I share my screen?

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Yes. Yes.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Okay. You've seen the the big rail yard there, the lumber yard. My name is Craig Dellapenna. For thirty years, I've been involved in the rail to trail projects throughout the Northeast United States. I used to market rail freight, plan to start up, and manage the operations of seven large scale transloading operations. The picture you see there is actually in Connecticut. It was the largest single wholesaler lumber reload terminal in the Northeast United States. The mainline track there next to it is the old Central Vermont Railroad from St. Albans, actually into Canada, St. Albans and all the way into London, Connecticut. This was along the way. I was invited, I actually also worked for Pinsley Railroad Company, the last real railroad that ran the St. John's Bray and Lamoille County line up until the 70s, and I was invited to write a series of books about rail trails, a real serious bent towards the history, and then I got involved with the politics of how they did or did not get built, and I was actually hired as a lobbyist organizer in six states by Rails to Trails Conservancy, and I would parachute into all the to dos about shall we build the trail or not. So I'm sort of battle hardened on the annoying rain man of rail trails, but I'm also like Forrest Gump, passing through iconic events we never knew were iconic at the time. Including, I was on the first, the team that created the first report for the Federal Railroad Administration and the Federal Highway Administration who partnered together to do a report about rail with trail over twenty years ago. At that time, the Federal Railroad Administration was very concerned because there was about 60 of these places there. And they wanted to streamline how they got built or didn't. They wanted to understand why they were needed and what was going on with that. Later, Rails to Trails Conservancy has done several more reports on this subject. And in fact, I was hired by Rails to Trails Conservancy part time in 1997 while working for railroad distribution services doing my big transload operations, and they brought on board Charlie Marshall. Charlie Marshall was the founder of the Genesee and Wyoming Railroad Company, a salt mine railroad company in Upstate New York, that he expanded and became became the world's largest aggregator of short line railroads. Over a 120 railroads now, if I'm not mistaken. Charlie is on the board of Rails to Trails Conservancy, and this thing I have on the screen here, the, the senate committee has this and can send it to you all as a link. And I'm gonna scroll through it here. That's Charlie Marshall. Several of the railroads he owns or ran, he was the president, I should say. He actually was involved in rail to trail development where they made sense to ensure they made sense, not frivolous, lightly designed and frivolous, scary, unsafe places know Charlie Marshall was very detail oriented, and he was on the board for many years. He just got off the board a couple of years ago. This little snippet on Rails to Trails Conservancy's website honors Charlie and his work. You can see that. Now, one of the railroads that the Genesee and Wyoming Railroad now owns, is the Old Central Vermont, more recently known as New England Central Railroad, the one that comes off the Connecticut River Valley. They don't allow railroad trail, because the state of Vermont has not changed the rules yet. Now I'm gonna take you to another site here. This is one of my websites, and and it and the senate team has this here as well.

[Charlotte (committee staff; screen-share assistance)]: I don't

[Sen. Rebecca “Becca” White (Vice Chair)]: think We can't see out here We

[Sen. Andrew Perchlik (Acting Chair)]: can't see your

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: I'm sorry. Say it again.

[Sen. Andrew Perchlik (Acting Chair)]: We can't see your what it's not up.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: This is not showing?

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: We're not

[Sen. Rebecca “Becca” White (Vice Chair)]: seeing your screen.

[Charlotte (committee staff; screen-share assistance)]: You're not sure?

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Yeah.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Did you see this one? Neither.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: No. It's it's it's even the same, but you can also send us things. And we'll

[Peter Young (General Counsel, Vermont Rail System)]: I did

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: send this to you.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Oh, great. Charlotte, you see it?

[Charlotte (committee staff; screen-share assistance)]: Yeah. We're right here on your side. Let go

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: on to Zoom here.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Maybe Okay. Wait.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Have to do it this way.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: We can actually look at it on our laptops. Okay. Oh, yeah.

[Sen. Andrew Perchlik (Acting Chair)]: I see the website.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Share screen. Share screen. Let's see. Can you see it now? No. Oh, let me press share.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Oh, yes. Now it's happening.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Yes. This is the There you go. This is this is the screen about Charlie Marshall and his work as the for several years he was on the board of directors and the president of the board of directors of Rails to Trails Conservancy to ensure that rail with trail projects got built safely, insanely. There's over 400 now, and I'm going to switch to this screen now. Can you see this screen?

[Sen. Andrew Perchlik (Acting Chair)]: Yes. Yes.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Okay. This is this is one of my websites. I have a number of things here. Let me see if I can make that small. Yes. This is one of my websites, and you have that link as what I presented to the senate committee here last night. This one here, that click on that. This is Genesee and Wyoming railroads with setbacks, specifications, locations nearby in the Northeast where they have rail with trail projects. Just scrolling down, you're going to see numerous rail with trail projects. I've got three lectures coming up on Cape Cod. This has been in the ground for forty years. They don't even have a fence on it there, but these are the full spectrum of what trails there are.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Oh, there's the Northampton. Can you stop on the Northampton one?

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: That's it right there. I'm actually about a mile from that. My wife and I own a house, a civil war era house, that sits eight feet from one of the earliest municipally built rail trails in The United States. And we operate a bed and breakfast here. And I'm a realtor in my day job now. I'm the first realtor in The United States specializing in sale of houses near rail trails. And let me get back to the main screen here. Go back to this. Here is the workup. The blue the little light blue item here is the module for the Massachusetts legislature in 2008 that created and passed the rec use statutes, which you're modeling. This was modeled after what happened in Maine. In Maine, what happened was the vice president, senior vice president of Guilford as they were becoming Pan Am Railways met with the lobbyists for the Maine Railroad Association in his house in Portland or South Portland with attorneys and principal people with the Eastern Trail Alliance. This was in 2005, and they hammered out these specs on how the rec use statutes could change in May.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: You're back.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Is it okay now?

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: Yep.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Yeah. In Maine, they they did the first updated rec use statutes in New England because the leadership of the executive vice president at Guilford Rail, who, by the way, are you all sitting down? He's been elevated once when CSX bought Pan Am. He now has a new job. He's the head of the Federal Railroad Administration. That is to say, the guy who was in the background getting the Maine rec use statutes to allow rail with trail, and in Massachusetts, which they partnered with National Grid, who owns 200 miles of dead railroads converted to utility corridors. Together, they created the Massachusetts Improved Rec Use Statutes, and that was in 2009. Now this fellow is the head of the Federal Railroad Administration, and just had a big event with the Short Line Railroad Association about how the feds are going to be using AI driven protocols to inspect tracks. They'll be a little cheaper. We won't have to use so much manpower to do that, but he is still involved with cutting edge stuff. This isn't easy, I know that, but it's not for frivolous little crazy purposes. These are very important because the densest network of dead steam railroad corridor, I'm not talking about trolley lines, but I'm only talking about dead corridors here, but the densest network is within 150 miles where I'm sitting right now. And we need to make these places more robust by rebuilding these old lines into linear parks. There will be gaps in some of these linear parks that need to be filled by rail with trail. They're not to be frivolous, not thought about frivolously. They have to be done carefully and thoughtfully, and you have to provide the railroads with the legislation to make them at least feel tangentially comfortable. And this is important, because I've commissioned in the last three years two major reports that have never been asked before in New England. What the hell is this stuff worth? For fifty years we've been pouring in relatively small grants, and sometimes large grants, to reassemble these corridors into linear parks. There are gaps. In Vermont, talking about what attorney Sharp just mentioning down in the Brattleboro area, the old 36 miles of trouble, the West River Railroad coming north out of Brattleboro, alongside the Central Vermont line going all the way up into the Londonderry area. That is built out in Londonderry. There's a gap, A gap in Downtown Brattleboro to the Fort Hill branch of the B and M Railroad. That gap needs to be filled with a rail with rail. There are scores of trespassers there every day. I would like to see the Vermont improve the rec use statutes to to allow for this in a thoughtful, careful way. Nobody's asking you to go in all hands on deck. Do a demonstrator project. Do it slowly, carefully, and it's happening all over the country. These are, they're thoughtfully done, they're not frivolous. I'm very excited to hear you today. Here's things about Pinsley Railroad Company. Pinsley, they just they just went out of business. They were picked up by CSX, a couple of executives inside CSX. Now have the Pinsley Railroad Company branding, logo, everything. And here's other examples on this site also of other states' recreational use statutes. You can see Connecticut here. I've got to update this. I think they've updated theirs. Vermont is not contemporary standards. And you see this here. New Hampshire has contemporary standards compared to Vermont. Well, that's a problem. And, so there's things to do here. So thank you. I'd be happy to answer some questions if you had any.

[Sen. Andrew Perchlik (Acting Chair)]: Questions. Go

[Sen. Rebecca “Becca” White (Vice Chair)]: ahead. So I guess I'm still confused because and thank you, Mr. Della Pena, I'm appreciative of you bringing up in memorial your friend, it sounds like. But I'm confused. It seems like we also do have rail trails. Massachusetts has rail trails. I guess I'm confused about like why these specific, why this law needs to be passed based on the fact that we've heard from the rail folks and others that they don't want it or need it here? Like what is the actual barrier then to these being built? I guess that's my confusion.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: Well, the confusion is because when governmental entities, and there's been a couple of instances just on the old Central Vermont now, the New England Central Railroad, which is part of the siloed 120 railroads under the flag of Genesee and Wyoming. The railroad officials who are local say, oh, we don't allow that because I never heard of such a thing, and we allow that. But in reality, they do. And so it has to be sort of like telling the railroads from the top down position that we want to do this, and we want to work together. And it's important to fill the gaps because, and I didn't really flesh this out, the reports we produce show that when trails become long, the experience in New England is always numerous, they're everywhere. These rail to trail projects are numerous and everywhere, but they're not long, because the gaps are expensive to fill, or they're complicated as in rail with trail. Having trails that are long presents opportunities for long distance overnight journeys that is transformative for the economic impact. Here Massachusetts, the third largest industry is tourism. They're just putting their toes into the water of long distance bike tourism. We will have the longest rail to trail project in New England is not the Memorial Valley Rail Trail, by the way, which I wrote a 2,000 word piece to your Hardwick, Vermont newspaper twenty years ago, that tipped the scales that got Agency of Transportation to green light the creation of that as a trail, and not try to keep it running as a pretend railroad. It doesn't work. I know how to make railroads work, other people do too. Places that don't need to become trails. Once they become long, multi day journeys, they're going to be worth on the order of $2,000,000 per mile per year, that will go into communities that are frail and forlorn in some cases, that will cause a renaissance into places. And that's what it's all about, really, is the economic impact. We all know the health impacts of having outdoor recreational, the benefits there, but the real insightful things for state agencies is, well, what the hell is it all worth? And it's very compelling stuff. In fact, I'd love to come up sometime and do a proper presentation. These are even the utilities. You someone mentioned earlier, one of your earlier speakers mentioned just tangentially gas pipelines. The Unitil utility in Maine has a 700 PSI gas pipeline in the trail, that they loved the idea of having refuse statutes there, so other trails could connect to this, to have more eyes on the trail. They wanted more eyes with regular people that would prevent any bad things happening to their pipeline. That's part of the equation here too. In Massachusetts, there's one utility, National Grid, that owns over 200 miles of former railroad corridor, that is becoming trails. And the bill signing ceremony that they were in the background with, with Pan Am Railways years ago, that at the bill signing ceremony in Boston with Governor Patrick in 2009, the entire real estate department of National Grid was there. And wherever there's a ribbon cutting for even a short few 100 yard section of a trail of a utility corridor they own, that used to be a railroad, their real estate department is there. This is very impactful. This is important for Vermont too. You have several places in Vermont, as Attorney Sharp just mentioned, the possibility of bits and pieces of corridor that would have to be rail with trail to fill gaps where it's not possible to be having a trail along the road for whatever reason. And so, you know, I'm just thrilled that you're doing this now. This is very inspiring.

[Sen. Andrew Perchlik (Acting Chair)]: I would

[Sen. Rebecca “Becca” White (Vice Chair)]: just say, I appreciate your point, and I think I'm still struggling to follow along a little bit, so I apologize. But is your point that, like, the gas companies want people to be walking on their pipeline corridor and that their preference is to have that because the more people who are viewing it, the more likely they are to notice leaks? Like, I guess that seems a little illogical to me because then if we were to move the liability and then someone got hurt, who noticed a leak or was injured by something, they wouldn't be able to have any kind of protection is my understanding from this law. So I don't think it's worthwhile to have citizens be asked to be sleuths for utility problems when they have a liability. So

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: All all these all these things on this page are they go to links to fill in the gaps in your knowledge. I can't do this just on a few minutes here. This page will illustrate everything for you. This is exactly true. Unitil, the 700 PSI gas pipeline in Southern Maine were involved to get the trail built. They wanted the trail Case closed, this is true, this will all explain it here.

[Sen. Rebecca “Becca” White (Vice Chair)]: This is Sure. No. No. No. I guess I I can agree. I really appreciate that you have your website and you've made stuff, and I'll I'll definitely review that. And thank you, senator Harrison, for bringing this forward. But I think that is phenomenal that they're so excited. And what I've heard from, I think of our utilities in the rail already, is that they are supportive of rail trails, but they don't necessarily see the need to remove their own liability to achieve that. And I worry that the argument you're making is that folks should be viewing and looking at utilities when they're on these rail trails. That's a benefit to these companies. But then my concern is with this bill, we're removing all their ability if something went wrong. Like, if they did identify a falling wire and got electrocuted, they have no ability to get any remittance with this. Well, yeah.

[Sen. Wendy Harrison (Clerk; co-sponsor of S.261)]: I mean, this is longer conversation. Part of it is that when you have more peep more eyes on the ground in any situation, not just this, you you and people, they're not trying to act, you know, have the people act for them. Okay. But it's a safer situation for everyone. Like, you know, we're talking about kids on the rails, if there's a whole family there with kids they'll make sure the kids don't go on the rails which is much better than having the teenagers going out on their own and being the only ones around. Okay. So that's that's, and we can talk more about the liability obviously, and we will, but having spaces be public and visible is generally safer than hideaway spots.

[Craig Della Penna (Rails-to-Trails advocate/consultant)]: I'll just close with my point, my part here, and say that I'll be available for you to research and answer questions, and I will feed your committee lots of information as I come upon it and be a resource for you.

[Sen. Andrew Perchlik (Acting Chair)]: Thank you. Well, thank you very much, and this has been helpful for us to learn about this issue. I think we have a ways to go, but thanks for getting us started on this path. Thank you all, and with that, Megan,