Authority Of Counties To Allow Use Of Off-Road Vehicles And Wheeled All-Terrain Vehicles

COUNTIES—MOTOR VEHICLES—HIGHWAYS—ROADS AND STREETS—Authority Of Counties To Allow Use Of Off-Road Vehicles And Wheeled All-Terrain Vehicles

RCW 46.09.360 authorizes counties to designate roads or highways to be suitable for use by off-road vehicles, but excludes wheeled all-terrain vehicles from this authority. Counties derive authority to authorize the use of wheeled all-terrain vehicles under RCW 46.09.455, which applies only to roads with speed limits of 35 miles per hour or less. County authority to authorize the use of wheeled all-terrain vehicles is therefore limited to roads with speed limits of 35 miles per hour or less.

April 17, 2015

Dear Prosecutor Barkdull:

            By letter previously acknowledged, you have requested our opinion on the following questions:

1.         Does the authority granted counties under RCW 46.09.360 to designate roads override RCW 46.09.455 allowing such use on roads having a speed limit of 35 miles per hour or less?

2.         Does the language “regulate the operation of nonhighway vehicles . . . provided such regulations are not less stringent” in RCW 46.09.360 also apply to the language in the same statute that seems to give counties the authority to designate suitable roads, if the speed limit on those roads were higher than 35 miles per hour?

3.         Does the authorized use of an off-road vehicle under RCW 46.09.450 pertain to a road authorized under RCW 46.09.360 having a speed limit greater than 35 miles per hour?

BRIEF ANSWERS

            1.         The authority granted counties under RCW 46.09.360 to designate roads or highways to be suitable for use by off-road vehicles applies only to off-road vehicle use and expressly excludes wheeled all-terrain vehicles. County authority to allow wheeled all-terrain vehicles to operate on public roadways flows independently from RCW 46.09.455(1)(c), but that

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authority can only be exercised on public roadways having a speed limit of 35 miles per hour or less.

2.         RCW 46.09.360 allows political subdivisions to regulate the operation of nonhighway vehicles so long as such regulations are not less stringent than RCW 46.09. This grant of authority is consistent with the subsequent sentence of RCW 46.09.360(1) authorizing counties to designate roads or highways suitable for use by off-road vehicles but excluding wheeled all-terrain vehicles. Counties can designate any roads or highways, regardless of their speed limit, for use of off-road vehicles, but that does not apply to wheeled all-terrain vehicles.

3.         RCW 46.09.450(1)(b) authorizes off-road vehicles to operate on roads or highways designated under RCW 46.09.360, but RCW 46.09.360 does not cover wheeled all-terrain vehicles. Neither RCW 46.09.450 nor RCW 46.09.360 restrict the designation of such roads by reference to posted speed limits.

BACKGROUND

Statutory Definitions

            The legislature has defined several relevant and related terms. “Nonhighway vehicle” is defined as “any motorized vehicle including an ORV when used for recreational purposes on nonhighway roads, trails, or a variety of other natural terrain.” RCW 46.09.310(10).

            “Off-road vehicle” or “ORV” is defined as:

[A] nonstreet registered vehicle when used for recreational purposes on nonhighway roads, trails, or a variety of other natural terrain. “Off-road vehicle” or “ORV” includes, but is not limited to, all-terrain vehicles, motorcycles, four-wheel drive vehicles, and dune buggies.

RCW 46.04.365. A nearly identical version of this definition of ORV used to be contained within RCW 46.09, but it was amended to its current form and moved in 2010 to RCW 46.04 as part of a nonsubstantive recodification of licensing statutes. See Laws of 2010, ch. 161, § 1 (indicating that the 2010 law is to streamline and make technical amendments to certain vehicle and vessel registration and title laws, and not be interpreted as having any substantive implications). The 2010 recodification left the definition of nonhighway vehicle in RCW 46.09, while moving the definition of off-road vehicle (ORV) to RCW 46.04, which chapter defines dozens of terms used throughout RCW Title 46. See RCW 46.04.010 (indicating that terms defined in this chapter apply throughout the title unless the context clearly indicates to the contrary). It is unclear why the 2010 legislature left the definition of nonhighway vehicle in RCW 46.09 while moving the definition of ORV to RCW 46.04, but there is no evidence suggesting any legal significance in the different placement. This history regarding the placement and movement of the definition of ORV, coupled with the fact that there are no provisions in RCW 46.09 clearly indicating a contrary meaning, demonstrates that the definition of ORV extends throughout RCW 46.09.

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            The definitions of nonhighway vehicle and ORV demonstrate that nonhighway vehicle is the broadest class of recreational vehicles used off public roads, and this broadest class includes ORVs as a subclass. One can infer that there could potentially be other kinds of nonhighway vehicles that may not qualify as ORVs, but it is not necessary for purposes of this opinion to determine what those may be.

            In 2013, the legislature introduced a new category called “wheeled all-terrain vehicles,” defined as

(a) any motorized nonhighway vehicle with handlebars that is fifty inches or less in width, has a seat height of at least twenty inches, weighs less than one thousand five hundred pounds, and has four tires having a diameter of thirty inches or less, or (b) a utility-type vehicle designed for and capable of travel over designated roads that travels on four or more low-pressure tires of twenty psi or less, has a maximum width less than seventy-four inches, has a maximum weight less than two thousand pounds, has a wheelbase of one hundred ten inches or less, and satisfies at least one of the following: (i) Has a minimum width of fifty inches; (ii) has a minimum weight of at least nine hundred pounds; or (iii) has a wheelbase of over sixty-one inches.

RCW 46.09.310(19) (Laws of 2013, 2d Sp. Sess., ch. 23, § 2).

            The definition of ORV (supra p. 2) expressly includes all-terrain vehicles (ATVs). While it seems logical to assume, and the legislature may have intended, that wheeled all-terrain vehicles (WATVs) constitute a subclass of all ATVs and thus a subclass of ORVs, we need not resolve that issue to answer your question. [1] Whether WATVs are a subclass of ORVs or distinct from ORVs, the 2013 legislature enacted some substantive provisions, addressed further below, that expressly treat WATVs differently than ORVs generally, and those provisions resolve your questions.

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Statutory History Of Nonhighway Vehicle Regulations

            As of 2004, RCW 46.09 addressed only nonhighway vehicles and the ORV subclass. Restrictions on the use of all nonhighway vehicles were set out in former RCW 46.09.120 and .130 (2004). The state regulated the subclass of ORVs by requiring users to purchase use permits and decals or tags. Former RCW 46.09.030, .040 (2004). Political subdivisions were allowed to regulate the operation of nonhighway vehicles, but only if such regulations were not less stringent than all provisions in RCW 46.09. Former RCW 46.09.180 (2004).

            In 2005, the legislature enacted a new law authorizing ORVs to be used on “nonhighway roads.” Laws of 2005, ch. 213, § 4 (codified at former RCW 46.09.115 (2005 Suppl.)). A county prosecutor asked our opinion about whether a county could rely upon former RCW 46.09.180 to allow ORVs to operate on public highways within their jurisdiction. We answered that counties could not rely upon former RCW 46.09.180 to authorize ORVs to drive on public highways, because such authorization would be less strict than the new 2005 law allowing ORV use only on nonhighway roads. See AGO 2005 No. 18.

            In 2006, the legislature responded by amending RCW 46.09.180 to add new sentences at the end of the law. The session law provides as follows:

            Notwithstanding any of the provisions of this chapter, any city, county, or other political subdivision of this state, or any state agency, may regulate the operation of nonhighway vehicles on public lands, waters, and other properties under its jurisdiction, and on streets, roads, or highways within its boundaries by adopting regulations or ordinances of its governing body, provided such regulations are not less stringent than the provisions of this chapter. However, the legislative body of a city with a population of less than three thousand persons may, by ordinance, designate a street or highway within its boundaries to be suitable for use by off-road vehicles. The legislative body of a county may, by ordinance, designate a road or highway within its boundaries to be suitable for use by off-road vehicles if the road or highway is a direct connection between a city with a population of less than three thousand persons and an off-road vehicle recreation facility.

Laws of 2006, ch. 212, § 4. This new language allowed small cities to designate streets or highways that could be used by ORVs, and counties containing such cities within their jurisdiction could similarly designate roads or highways that connected such cities to ORV recreation facilities. There is no explanation why this new language uses the subclass of “off-road vehicles” instead of the broader class of “nonhighway vehicles” that is referenced earlier in the same section. Other statutory provisions were amended in the same 2006 law, for

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purposes of consistency, to permit ORVs to operate on public roadways so designated by cities or counties. See Laws of 2006, ch. 212, §§ 1-3.

            In 2010, the legislature enacted a technical cleanup bill addressing numerous vehicle and vessel licensing and registration provisions. The bill had a delayed effective date of July 1, 2011. Laws of 2010, ch. 161, § 1238. Use permits required to operate ORVs within the state were re‑named “registrations.” Laws of 2010, ch. 161, § 218 (RCW 46.09.410). Many statutes in RCW 46.09 were recodified from lower numbers in the chapter to higher numbers in the chapter. Relevant to this opinion, the provision addressing the ability of political subdivisions to regulate nonhighway vehicles was moved from RCW 46.09.180 to RCW 46.09.360.

            In 2013, the legislature created a new vehicle subcategory for “wheeled all-terrain vehicles” and enacted numerous new laws governing their use and registration separate from ORVs. Laws of 2013, 2d Sp. Sess., ch. 23. The 2013 law also further amended the authority of political subdivisions:

            (1) Notwithstanding any of the provisions of this chapter, any city, town, county, or other political subdivision of this state, or any state agency, may regulate the operation of nonhighway vehicles on public lands, waters, and other properties under its jurisdiction, and on streets, roads, or highways within its boundaries by adopting regulations or ordinances of its governing body, provided such regulations are not less stringent than the provisions of this chapter. However, the legislative body of a city or town with a population of less than three thousand persons may, by ordinance, designate a street or highway within its boundaries to be suitable for use by off-road vehicles. The legislative body of a county may, by ordinance, designate a road or highway within its boundaries to be suitable for use by off-road vehicles ((if the road or highway is a direct connection between a city with a population of less than three thousand persons and an off-road vehicle recreation facility)).

            (2) For purposes of this section, “off-road vehicles” does not include wheeled all-terrain vehicles.

Laws of 2013, 2d Sp. Sess., ch. 23, § 11 (amending RCW 46.09.360). This amendment expands the authority of counties to designate roads and highways by deleting the limiting condition that such roadways connect ORV facilities to small cities. This amendment also adds the express provision that off-road vehicles does not include WATVs for purposes of the section. The legislature’s differentiating ORVs from WATVs for purposes of RCW 46.09.360 drives the answers to all of your questions.

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ANALYSIS

1.         Does the authority granted counties under RCW 46.09.360 to designate roads, override RCW 46.09.455 allowing such use on roads having a speed limit of 35 miles per hour or less?

            The authority granted counties under RCW 46.09.360 to designate roads and highways for ORV use does not override or conflict with RCW 46.09.455 because the two statutes do not overlap. The road designation language in RCW 46.09.360 applies to ORVs but expressly excludes WATVs. See RCW 46.09.360(2). RCW 46.09.455 applies to WATVs only.

            RCW 46.09.360(1) first allows political subdivisions to regulate the operation of nonhighway vehicles on public lands, waters, and other properties under its jurisdiction, and on streets, roads, or highways within its boundaries, so long as such regulations are not less stringent than the provisions in RCW 46.09. The second sentence of RCW 46.09.360(1) authorizes cities and towns to designate streets and highways suitable for ORV use, while the third sentence extends authority to counties to designate by ordinance roads and highways within their boundaries that are suitable for use by ORVs. This road and highway designation authority contains no limit with reference to the posted speed limit of those roads. The inclusion of “highways” further supports the observation that the authority is not restricted to roadways with speed limits no higher than 35 miles per hour.

            RCW 46.09.360 must be read in conjunction with RCW 46.09.450, which sets out general statutory prohibitions on the operation of ORVs. RCW 46.09.450(1)(b) allows ORV operation on streets, roads, or highways “as authorized under RCW 46.09.360.” RCW 46.09.450(2) further provides that ORVs operated on streets, roads, or highways as authorized under RCW 46.09.360 are exempt from vehicle licensing requirements in RCW 46.16A and vehicle lighting and equipment requirements in RCW 46.37. No language in RCW 46.09.450 references the posted speed limit of roads on which ORVs can operate. In conclusion, the authority of counties to designate roads or highways for ORV use is not linked to the speed limit on such roads or highways, but the rules for WATVs are different.

            The authorized uses and prohibitions for WATVs are addressed in statutes separate from those addressing ORVs generally. The controlling statute is RCW 46.09.455, which sets out the statutory requirements for the lawful operation of WATVs on public roadways and authorizes political subdivisions to restrict or permit WATV use consistent with its terms. The relevant language states:

            (1) A person may operate a wheeled all-terrain vehicle upon any public roadway of this state, not including nonhighway roads and trails, having a speed limit of thirty-five miles per hour or less subject to the following restrictions and requirements:

                        . . . .

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            (c)(i) A person may not operate a wheeled all-terrain vehicle on a public roadway within the boundaries of a county, not including nonhighway roads and trails, with a population of fifteen thousand or more unless the county by ordinance has approved the operation of wheeled all-terrain vehicles on county roadways, not including nonhighway roads and trails.

            (ii) The legislative body of a county with a population of fewer than fifteen thousand may, by ordinance, designate roadways or highways within its boundaries to be unsuitable for use by wheeled all-terrain vehicles.

            (iii) Any public roadways, not including nonhighway roads and trails, authorized by a legislative body of a county under (c)(i) of this subsection or designated as unsuitable under (c)(ii) of this subsection must be listed publicly and made accessible from the main page of the county web site.

            (iv) This subsection (1)(c) does not affect any roadway that was designated as open or closed as of January 1, 2013[.]

RCW 46.09.455(1).

As structured, this statute first sets out the overriding condition that WATVs can be operated only on public roadways having a speed limit of 35 miles per hour or less, and it then sets out additional restrictions and conditions on WATV operation. Subsection (1)(c) addresses the authority of counties to regulate WATV use on roads within their jurisdiction, differentiated by population. In counties with a population greater than 15,000 people, the use of WATVs on county roadways is prohibited unless the county designates by ordinance county roadways suitable for WATV operation. RCW 46.09.455(1)(c)(i). Counties with a population fewer than 15,000 people operate in the opposite manner—WATV use on county roadways is permitted unless the county designates by ordinance that a roadway is not suitable for WATV operation. RCW 46.09.455(1)(c)(ii). Regardless of the county population, and regardless of any position that a county legislative body may take on the issue, WATVs cannot use public roadways with speed limits greater than 35 miles per hour. This authority regarding WATVs provided in RCW 46.09.455 operates independently of the authority to designate roads and highways for ORV use found in RCW 46.09.360.

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2.         Does the language “regulate the operation of nonhighway vehicles . . . provided such regulations are not less stringent” in RCW 46.09.360 also apply to the language in the same statute that seems to give counties the authority to designate suitable roads, if the speed limit on those roads were higher than 35 miles per hour?

            As answered above, RCW 46.09.360 has no direct connection to the 35 mile per hour reference found in RCW 46.09.455. The language in the first sentence of RCW 46.09.360(1) allows political subdivisions, including counties, to regulate nonhighway vehicles so long as such regulations are not less stringent than any provision in RCW 46.09. As explained above (supra pp. 4-5), the phrase “nonhighway vehicles” includes ORVs, which includes ATVs, which arguably includes WATVs. But in any event, any county regulation regarding WATV use must abide by all other statutory provisions, including the restriction in RCW 46.09.455(1) that limits WATV operation to public roadways with speed limits of 35 miles per hour or less.

            The third sentence in RCW 46.09.360(1) more specifically addresses the ability of counties to designate suitable roads or highways for ORVs, but the next subsection excludes WATVs. RCW 46.09.360(2). As answered in response to the first question, this ability to designate roads and highways for ORV use is not limited by the speed limit on such routes.

3.         Does the authorized use of an off-road vehicle under RCW 46.09.450 pertain to a road authorized under RCW 46.09.360 having a speed limit greater than 35 miles per hour?

            The answer to the first question resolves the third question as well. The authorized use of an ORV under RCW 46.09.450 includes roads or highways designated under RCW 46.09.360, and neither statute references speed limits. These provisions govern the use of off-road vehicles, but because RCW 46.09.360 expressly excludes WATVs, they do not affect the 35 mile per hour roadway restriction imposed on WATV use under RCW 46.09.455.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

Joseph V. Panesko

Assistant Attorney General

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[1] Nothing in RCW 46.09 or RCW 46.04 defines “all-terrain vehicles.” They are, however, defined in RCW 46.10 for purposes of that chapter, which covers the regulation of snowmobiles. RCW 46.10.300(1) specifies that for purposes of RCW 46.10: “‘All terrain vehicle’ means any self-propelled vehicle other than a snowmobile, capable of cross-country travel on or immediately over land, water, snow, ice, marsh, swampland, and other natural terrain, including, but not limited to, four-wheel vehicles, amphibious vehicles, ground effect or air cushion vehicles, and any other means of land transportation deriving motive power from any source other than muscle or wind; except any vehicle designed primarily for travel on, over, or in the water, farm vehicles, or any military or law enforcement vehicles.” If the legislature intended that definition also to apply in other chapters, then this broad definition would certainly also include “wheeled all-terrain vehicles,” because they would constitute a subset of this broad class. But it is unclear whether the legislature intended this definition in RCW 46.10.300 to carry over to other chapters. Again, we need not resolve that issue here to answer your question.