No determination on who is responsible for right-of-way maintenance

If a tree grows in the right of way, along a township road, and needs trimmed or removed, who is responsible for tree trimming? Holt County Supervisors listened to public comment on the topic, Thursday, during a public hearing held in the supervisors' room at the Holt County Courthouse in O'Neill.

While the hearing focused on written notices, sent by the county attorney's office, to landowners in Rock Falls Township,the question of responsibility first sprouted earlier this year, when the Emmett Township board presented a list of roads which were infringed on by rogue trees.

Supervisor chairman Bill Tielke said Emmett Township board members presented the list and certified letters were to be mailed to affected landowners, who would have an opportunity to speak in a public hearing.

When the list was presented, Holt County Attorney Brent Kelly recused himself, due to a conflict.

When complaints from Emmett Township were filed, Kelly told supervisors he and/or his family had ownership or farmed a property on the list.

At that point, Antelope County Attorney Joe Abler was brought on as special counsel and asked to render an opinion.

In his findings, presented in August, Abler determined "small voluntary trees are growing within the county road ditch that should or could have been mowed by an ordinary farm mower."

In the meantime, Rock Falls Township board members submitted a list of landowners violating the law and, per state statute 39-1813, Kelly sent certified letters regarding a hearing.

Tielke said a Sept. 30, 1949, Nebraska Attorney General ruling determined "it is the duty of the county to clear the road, shoulders and ditches."

However, the chairman said for years, it has been the board's belief that responsibility falls on landowners to clear weeds and undergrowth, which includes trees.

Prior to hearing public comment, Tielke told approximately 40 patrons the purpose of the public hearing was to gather information.

"The board does not have to make a decision today," Tielke said.

Kelly cautioned the board a decision should be made, at least, on property owned by the Nebraska Board of Educational Lands and Funds, since they received a letter of complaint and were represented at the hearing.

"The issue you might wander into is what I call a due process issue," Kelly said.

He suggested handling that portion in a trial-like format, so evidence may be presented.

Supervisor Doug Frahm asked Kelly who he represented.

Tielke told Kelly, "The statute says you are to appear on behalf of the county board. You don't know the opinion of the county board, so you are not ... until you know how we ... and we're here to gather information so we can form an opinion on whether we're going to follow through with it or not ... I've never seen this happen before, where the board appeared to a supposed hearing and never had the county attorney on our side. We're here with no representation as a county board."

Kelly said his interpretation of the law mirrors the attorney general's interpretation.

"I don't blame anybody for not agreeing on this. You have had five or six attorneys weigh in on this. It really is your decision. You know where I stand, but you make whatever ruling you want."

Tielke reiterated the board does not have representation

"So you're not on our side, per se. You're going to explain the law, these people can talk and say why they interpret it one way or another, but we don't have anybody representing on our behalf."

Frahm reiterated the supervisors were not being represented in the hearing.

"If the statute says I represent you, I'm telling you, I represent you," Kelly replied.

"We have to make the final decision. We've been following this process, and it's a new process. I mean we haven't been on it for long, so it's a discovery process. It's not a court of law," Frahm said.

Supervisor Don Butterfield asked Frahm what happens if Kelly doesn't represent the board.

"Let this go through and they can give us an opinion when it's over with," Butterfield said.

Kelly Sudbeck, chief executive officer and executive secretary of the Nebraska Board of Educational Lands and Funds, said if the request is asking for complete removal from the township's right of way, the wrong statute is being "relied on."

"Statute 39-1812 applies to trees grown outside of the right of way," Sudbeck said. "The attorney general's opinion you already have agrees with this position. It's a different statute number, but it's the same statute."

Sudbeck, a practicing Nebraska attorney, said the statute also does not require complete removal, only trimming.

Statute 39-309 does allow for removal of a hedge fence, trees or undergrowth from a right of way.

"There's no companion statute with 39-309 that allows the county to bill the neighboring landowner when it removes trees pursuant to 309. The statutes do not give county the authority or provide a mechanism to demand reimbursement pursuant to 39-309," he said.

Sudbeck shared statute 39-2003, which provides for maintenance of county roads at the county's expense.

"Public roads are a shared benefit of the public," Sudbeck said.

The road adjacent to the educational fund's ground, near 883 Road and 491 Avenue, "has become a two-track trail," Sudbeck said.

A 1951 aerial photo of the road looks the same.

"It appears this road has had no county or township maintenance for probably 70 years or more. Is it equitable to demand that a neighboring landowner maintain the right of way, next to a roadway, the county and township, themselves, have failed to maintain?" Sudbeck asked.

He asked the board to follow the attorney general's opinion.

Tielke said 39-309 specially uses the word "plant."

"Planting is planted. A row of corn is planted, it is not volunteer. This is something that was planted to border so they have to keep them trimmed."

"One guy's weed is not another guy's weed. We try not to use general terms like that," Sudbeck said.

Former Holt County Supervisor Steve Boshart asked Sudbeck how many attorney generals have been in office since 1949.

"Do you suppose all have the same opinion," Boshart asked?

"It hasn't been contradicted or revoked," Sudbeck replied.

Boshart asked if Kelly had been directed to seek an opinion from the attorney general, instead of relying on the 1949 recommendation.

Kelly asked county board members if he should certify the question through the AG's office.

"No," Frahm said. "We're not there yet."

Following public comment, Kelly told supervisors if they agree with the attorney general's opinion, and not declare trees a nuisance, then nothing else needs to happen.

"If you find there is a nuisance, then you want to apply 1812 and 1813 statutes ... that's when you're holding the landowners feet to the fire."

Kelly said he recommends the board follow the AG's opinion and told the board that, at some point, they need to make a determination.

"It is your decision, as always, to ignore. Lots of people do ... It's my obligation to inform you to the best of my ability, what I believe, based on my training, my education, my experience and my research, what I think the law is. I've done that to the best of my ability," Kelly said.

Supervisors agreed to discuss the issue at an upcoming meeting.