Complaints on the ATV use of public right of way adjacent to county roads stirred discussion at the Burleigh County Commission meeting on Monday.

Richard Barrios and Neil Fahlsing, both living along Lincoln Road, want the county to restrict all-terrain vehicles and snowmobiles from the ditches adjoining county roads. Barrios, meeting with the commission, pointed to degradation of the ditch banks, noise pollution and safety concerns as reasons for their request.

"We are aware the state allows for off-road vehicles to use the right of way along state highways," Barrios said. "But we believe counties can restrict the use along its roads."

Barrios explained that several times, as he drove along 66th Street between Lincoln and old Highway 10, snowmobiles or ATVs had crossed in front of his vehicle with no warning. He added that snowmobilers and ATV riders, using the ditch, had crossed his property destructively, even though it's posted with "No Trespassing" signs.

"I'm not anti-snowmobile or recreationist, but I do want to promote the safe use of facilities such as Burleigh has to offer," Barrios said. "Ditches were never intended for off-road vehicle use. They are acquired from the landowner for utility use, roadway maintenance and safety. Now they are being used extensively by off-road vehicles, and they're tearing up the ditches. The ruts are deep and the vegetation gone."

The degradation ends up with blowing dust and increased erosion with rain, according to Barrios. And it also involves property taxes with the county having to spend funds on repairing the ditches.

"We can't live like this. I ask you to consider adopting rules or regulations not allowing ATVs or snowmobiles to use county road right of ways," Barrios said.

Commission Chairman Marlan Haakenson said he has the understanding that you can't limit the use of the ditches since they do belong to the public.

"And if they (ATVs and snowmobiles) can't use the ditches, where do you put them?" Haakenson asked.

Barrios suggested areas in parks and recreation areas such as McDowell Dam and the fairgrounds could be used. But Barrios maintained that the state Century Code does allow counties to be more restrictive of right of way use than the state.

"I understand your frustration and problems," Commissioner Doug Schonert said. "I've gotten many complaints and seen some of the misuse and damage. I have talked to the state's attorney and sheriff, and the Century Code's 39-29 does say that local ordinances can be more restrictive."

State's Attorney Richard Riha explained that some of the things Barrios described, such as the damage to private property, trespass and careless driving, were criminal violations and law enforcement should be called.

"What the commission can do is limited. They can adopt rules, but they would be non-criminal because Burleigh does not have home rule,"Riha said. "With respect to the roadway and shoulders, there are a list of rules and if violated are a misdemeanor. It's a matter of enforcement."

In response to Commissioner Mark Armstrong's question on banning off-road vehicles from the ditches, Riha said it could be done, but the county needs to provide adequate due process by going through the notification process and holding a hearing.

Bob Gregoire, representing the local snowmobile association, while asking the commission to again allow snowmobilers to use the fairground as a place to access the trails, took the opportunity to address the issue.

"I live in Bismarck, and I am a taxpayer. I know that some of the things you've described might have been violations," Gregoire said. "But I'd like the commission to know that ATVs are one item and snowmobiles another. Don't lump them together."

Snowmobiles have a different environmental impact than ATVs, according to Gregoire. Usually when snowmobiles are used, the ground is frozen and covered with snow, so no damage is done to the land. He added that the members of his organization are dedicated and promote snowmobiling as a safe experience and most of the trails they use are along state highways with few county ditches involved.

"That's why we have the trailhead over at the fairgrounds because it has a great location close to Highway 10 and public land. We're not bothering many people," Gregoire said.

The commission took no action on the Barrios and Fahlsing request, but did unanimously approve providing the fairgrounds for use as a trailhead for snowmobilers.

(Reach reporter Gordon Weixel at 250-8255 or gordon.weixel@;bismarcktribune.com.)