GRAND FORKS, N.D. - One development I have seen in my law practice is the need for legal services based upon the desire of "city slickers" to have a "rural experience." This may mean forming a business entity for an "agritourism" operation, like a pumpkin patch, a corn maze or a bed and breakfast. It could mean drafting leases that include the right to hunt and fish on otherwise private property. There are many different forms a "rural experience" or a "wilderness experience" can take.
"Recreational use statutes" gained relevance in the 1990's, and they are still growing in terms of scope and impact in the legal world. Recreational use of agricultural land is one way farmers can diversify revenue opportunities in their operations, and it also fills a basic "supply and demand" need of outdoorsmen and outdoorswomen. Additionally, local rural economies benefit greatly from the dollars that are brought into the rural community from outside populations.
What's more, in the past ten years one of the awful side effects of high commodity prices has been the unfortunate destruction of tree groves and tree shelterbelts in order to gain a few more tillable acres. This in turn destroys habitat for deer and other wildlife. Consequently, this enhances the value of the habitat that remains, both economically and ecologically. One of my favorite writers - Agweek's own Jonathan Knutson - has expounded on this topic recently. One recent column can be found here.
North Dakota's present legislative session notwithstanding, Chapter 53-08 of the North Dakota Century Code encompasses North Dakota's recreational use statutes. In general, these statutes operate as a shield for landowners against civil liability based upon use of the land for recreational purposes. NDCC 53-08-02(1) states "[s]ubject to the provisions of section 53-08-05, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, regardless of the location and nature of the recreational purposes and whether the entry or use by others is for their own recreational purposes or is directly derived from the recreational purposes of other persons, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes."
In other words, landowners generally are not subject to civil liability if people use their land for recreational purposes. Hunters are permitted to hunt, but at their own risk. Four wheelers can be driven on the land, but if there is an accident it is generally not at the peril of the landowner.
However, this rule does not apply to "[a] person that enters land to provide goods or services at the request of, and at the direction or under the control of, an owner." In other words, someone who is invited onto the land to conduct some kind of business may be civilly liable.
And this rule also does not apply to "[a]n owner engaged in a for-profit business venture that directly or indirectly invites members of the public onto the premises for commercial purposes or during normal periods of commercial activity in which members of the public are invited." In other words, an agritourism business or commercial hunting venture will generally not enjoy the protection from civil liability that a mere landowner enjoys.
The provisions of NDCC 53-08-05 expand upon this law. That section of the code states "[t]his chapter does not limit in any way any liability that otherwise exists for ... willful and malicious failure to guard or warn against a dangerous condition, use, structure or activity." In other words, if a landowner has any concerns about their property containing an "attractive nuisance," it is a good idea to post warning signs for those who enter the land, even those who are trespassers.
Landowners should seek legal counsel if they have any questions about the duty of care owed to those who use their land.
Editor's note: Welte is an attorney with the Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in Grand Forks County.