Recreational Use/Recreation Trespass Laws
In the past, private landowners have been reluctant to allow public access to their property for fear of falling victim to premises liability lawsuits. In an effort to encourage landowners to grant free public access for recreational activities like hunting and fishing, states have passed laws to protect landowners against such liability. As long as landowners comply with the Recreational Trespass statute requirements in their respective states, such as not charging for recreational access and not maliciously failing to warn of danger, courts typically will not hold them liable for injuries sustained by recreational users on their land.
In this section, the Association of Fish and Wildlife Agencies has provided a compilation of the relevant portions of each state statute. For reference purposes, each statute section is preceded by its legal citation and is written in its original legal format.
Financial Incentives for Public Access
Every state in the United States offers some type of financial incentive to landowners who agree to preserve undeveloped areas or allow public access on their properties. To promote both recreational access to private lands and conservation of undeveloped lands, states encourage private landowners to utilize a substantial variety of financial incentives available to them. These incentives can be grouped into three main categories; property tax laws, income tax credits for land donations and hunter access programs.
Property tax incentives are offered by states via property tax laws to reward landowners who keep their land undeveloped or open it to public access. Generally, states assess property tax based on the fair market value of the land. Most states have determined that certain types of land should be taxed based on how the property is currently being used as opposed to the highest price a buyer would pay for any particular use. For example, in a state with current use taxation of agricultural land, a farm would be taxed as a farm, rather than as a potential housing development. States offer current use property taxation for different types of land, including, agriculture, forestry, and open space conservation. Almost every state offers some form of current use property taxation. In addition to a general current use program, many states have taken measures to further improve public access and conservation benefits to private lands. These states often specifically identify open space lands as a priority, offer additional tax incentives for access, and require forest management plans.
Income tax credits for land donations are often provided by states to reward landowners who donate open space land to a charitable organization. Land donations can take a variety of forms. Every donation of land must be made to a qualifying charitable organization, typically a land trust. The most common type of land donation is a conservation easement. Another typical donation is a bargain sale of land, where the landowner negotiates a below-market sale of his land to a charitable organization. A donation of land with a lifetime income is yet another type of land donation that is eligible for a tax credit in most states. This type of donation is based on an agreement whereby the landowner will donate land as a gift to a charitable organization but still receive a monthly or annual cash income in the form of an annuity. Lastly, a landowner can donate land as a gift for conservation purposes.
The value of the tax credit depends on the value of the land donation. For example, a landowner that donates his entire parcel will receive a tax credit based on the fair market value of that parcel of land. Whereas a landowner that donates a conservation easement will receive a tax credit based on the value of the development rights ( i.e., the difference between the fair market of the land before and after the conservation easement). Similarly, the tax credit for a bargain sale of land would be based on the fair market value of the land, minus the cash value that the landowner received from the charitable organization.
Hunter access programs encourage recreational access to private land via a wide array of incentives to the landowner, often in the form of a financial incentive. Typically, hunter access programs allow hunters to use private lands through an arrangement developed and managed by the state wildlife management agency.
In this section, the Wildlife Management Institute has provided a compilation by the Land Use Institute at the Vermont Law School that lists each state’s financial incentive programs organized according to the above categories. Details regarding pertinent statutes and information sources are also included. The student research team used the Westlaw and LexisNexis legal databases to search every state’s legislative acts for tax related programs. Additionally, the researchers used general web searches to investigate hunter access programs. The hunter access programs identified are those walk-in hunter access programs run by the state with information readily available online. Students did not interview state officials to verify the existence of walk in hunter access programs. There are likely additional hunter access programs that were not readily available online at the time of research.
In the interest of fairness, statutes are typically written in a way that allows the courts to use some discretion in their application to specific facts and instances on a case-by-case basis. It is, therefore, prudent to scrutinize the precedents set by each case related to a specific statute in order to predict how the laws may affect future circumstances. Comparing the facts of a current situation with the facts of past cases is the best way to anticipate the outcome of a potential lawsuit. In the case of recreational use or recreational trespass laws, an examination of the mistakes or success in past cases may help landowners to preemptively avoid liability while at the same time providing state agencies with perspectives that can assist them in reinforcing their own state’s recreation trespass laws.
Collected by the Association of Fish and Wildlife Agencies, this section contains summaries of case histories that interpret recreational trespass statutes for each state.