Changing Your State’s Recreational Use Statute To Include Private Airstrips

by Jim Hanson

Minnesota joins 15 other states in providing protection for private airstrip owners who allow other pilots to use their airstrips. Within the region served by Midwest Flyer Magazine, only South Dakota and Minnesota, and parts of Nebraska, have made the change. I would like to invite pilots from all Midwest states to likewise make the effort.

Each of the 50 states has a Recreational Use Statute (RUS). (See the sidebar from the Recreational Aviation Foundation for a full explanation.) The RUS is sometimes called the “Good Guy Law” — it could be summed up by saying that a landowner has no liability if he allows someone to use his land without charge, and doesn’t overtly create a hazard. These two limitations are important.

Most Recreational Use Statutes were created to encourage landowners to allow people to use their land…there is not enough public land to accommodate all who would like to use it. Recreational uses usually say “includes, but are not limited to the following activities…..” The statute then goes on to list types of activities. In Minnesota, RUS lists “hunting; trapping; fishing; swimming; boating; camping; picnicking; hiking; rock climbing; cave exploring; bicycling; horseback riding; firewood gathering; pleasure driving, including snowmobiling and the operation of any motorized vehicle or conveyance upon a road or upon or across land in any manner, including recreational trail use, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites……” That’s quite a lot of activities, but it DOESN’T say anything specifically about aviation. That is what we set out to change.

The Problem

Aircraft owners, pilots, and airstrip owners are gregarious sorts. The private airstrips might be Flying Farmer strips, residential airparks, Light Sport Aircraft strips, glider ports, private seaplane bases, or private heliports, or simply a private airport. Most of these airstrip owners would love to have people drop in (with permission, of course), but have been leery of the possibility of encountering a lawsuit if something went wrong. For that reason, many airstrip owners have de-listed their strips from the aeronautical charts (and GPS databases), even though they were listed as “restricted” or “private.” The actual number of prosecutions of private airstrip owners has been few, but in today’s society, nobody wants to incur the legal expenses to defend themselves from simply being a “good guy” and allowing someone to use their airstrip. How many times have you been flying along, looking down, and discovered an unlisted private strip? Now you know why.

The Solution — The Recreational Aviation Foundation

We need to give airstrip owners the same protections afforded other recreational activities. Why should aviation be any different than the other activities? I contacted the Recreational Aviation Association (RAF). RAF is a charitable, non-profit organization dedicated to the preservation and promotion of private airstrips. According to their website, the purpose of the organization is to:

• Acquire private land for the development of new airstrips,

• Assist in funding the building of new airstrips on public land,

• Develop educational materials to assist pilots in being knowledgeable advocates,

• Fund efforts to gain national recognition of backcountry recreational aviation and airstrips as a legitimate use of public lands.

• Provide educational information regarding recreational airstrips to members of Congress and their staff.

I contacted the RAF and within hours, I had a returned phone call from John McKenna, President of the RAF. I was impressed…RAF is that kind of organization – straight talk, all action – as exemplified by the rapid return on a phone call. McKenna outlined the background and mission of the organization: preservation and expansion of private and remote airstrips. The organization started in Montana, and made its mark in preserving remote airstrips in the American West. The concept caught on, and RAF has experienced explosive growth across the country. The organization has been SO successful that RAF received recognition as one of the five “Best Products of the Year” from Flying magazine. Even though it is not really a “product,” but an organization, Flying was so impressed with their mission and accomplishments that the magazine gave them the award. Similarly, RAF won the Lightspeed “Pilot’s Choice Award” as the choice of most pilots as the aviation organization most deserving of the Lightspeed $10,000 grant. Today, RAF has members in all 50 states. Even more important, RAF has a “seat at the table,” along with other aviation organizations when discussing national aviation policy.

McKenna advised me that the key to affording protection for private strip owners was to make a simple change in the State Recreational Use Statute, and that though RAF would help, this must be a local effort!

We contacted Sen. John Carlson from Bemidji, Minnesota. To introduce a companion bill in the House, we contacted Rep. David Hancock, also from Bemidji. Bemidji is in the northern part of the state, and there are a number of private and resort airstrips there. Even more important than their geographical location, though, were the legislators themselves. I have a friend that is a former legislator himself, and asked his advice on who should carry the bill. These individuals were his recommendations.

Lesson Learned #1: Find the very best legislator to carry the bill. Their heart has to be in it, and they must be tenacious to carry on when the inevitable legislative snags occur. Many bills are introduced into the legislature every year; only a small percentage actually survive. Having these two legislators carry the bill was one of the best things we could have done. When problems arose (as they inevitably do), these experienced legislators enlisted the assistance of Rep. McNamara (Chair of the Natural Resource Committee), and Rep. Beard (where it was attached in the House). Bills often take strange turns on the way to passage, and an experienced legislator that really believes in a bill makes all the difference in the world.

Lesson Learned #2: Introduce bills in both houses. The probability of passage increases greatly. If one bill runs into difficulty, the other proceeds. If there is a difference in the bills, it can be worked out in a conference committee.

Lesson Learned #3: Provide multiple copies of your position to your legislators. In the Minnesota case, I provided RUS information from the RAF, with their permission. I provided text from states that had recently amended their RUS documents to use as an example. I provided examples of those who would benefit from the change STATEWIDE, not just from their districts. Examples included Flying Farmers, airpark communities, resorts, seaplane bases, heliports, glider ports, and aeromedical evacuations. I then provided a single-page summary legislators could use. Finally, I provided them with the RAF website, and being conscientious legislators, they did use it to verify the information I had given them.

Lesson Learned #4: Have an experienced and savvy legislator that believes in your cause. Though the bill went through the House with little opposition (Rep. Hancock actually picked up co-sponsors along the way!), it had some questions in the Senate. Sen. Carlson met with a representative of the Minnesota Association for Justice (formerly Minnesota Trial Lawyers Association) to discuss their initial concerns – most of which centered on what the definition of “non-commercial aviation” was. We suggested that we simply use the definition of “commercial operation” from the Minnesota Department of Transportation, Office of Aeronautics, as what constituted a commercial operation. Afterall, if it was good enough for the regulatory agency for commercial operations, it should suffice for this bill. The Bar Association was satisfied with that.

Both Representative Hancock and Senator Carlson stayed in constant contact. Because time until adjournment was waning, Sen. Carlson attached the bill to an omnibus Game and Fish bill for a vote. He was able to do that because the RUS in Minnesota (like so many other states) originated as a Game and Fish bill when it was first introduced, making it “germane” to a Game and Fish bill. That was a smart move on his part, and another indication of why it is so important to have an experienced legislator on your side. When time came for testimony in the House-Senate Conference Committee to reconcile differences in the House and Senate on the differing bills, I addressed the committee to answer questions. There was a call from one member to add additional clarifying language. The representative from the Bar Association actually sat down next to me and said, “Mr. Hanson’s short definition of the bill hit it out of the park. We have reviewed the language from MN/DOT Aeronautics, and have no objections to it. We feel that no additional language is warranted.” Imagine that…because of Sen. Carlson’s foresight and planning, a potential problem was averted, and a potential adversary became an ally!

The bill cleared the conference committee, and the omnibus bill was passed by the legislature and signed into law by the governor in May 2012.

What Does This Mean For Minnesota Pilots & Airstrip Owners?

• It means that an airstrip owner may allow other pilots to use a private airstrip without fear of legal issues, subject to the limitations previously stated.

• Airstrip owners may want to list their airstrips for inclusion on aeronautical charts and databases.

• Resorts can advertise availability of their airport, bringing more business.

• Aviation-related businesses may now allow customers to use their airports and seaplane bases.

• These private airstrips are available for emergency flights (aeromedical flights, for example).

• Pilots can get more utility from their aircraft by landing closer to their destination if they secure permission to do so. This is also good for nearby communities.

• Safety is enhanced. If a pilot needs an airport in a hurry due to an emergency or bad weather, the number of options will be greatly increased.

All of This Is At No Cost To Taxpayers. That’s good legislation!

ACTION

1. If you would like to consider amending the Recreational Use Statutes in your state, look up the Recreational Aviation Foundation at www.theraf.org. They have an excellent website. If you look under “pilot info,” you will find their contact information (you have to like an operation that lists phone numbers and email information for every person in the organization!), or simply call 406-582-1723.

2. On viewing the website, you will want to join the Recreational Aviation Foundation. RAF is a non-profit organization that is also dedicated to having flying fun!

3. Show this article to every owner of a private airstrip that you know so that they will be aware of the benefits of changing the Recreational Use Statute in their state, and their ability to allow others to use their airstrips with permission without fear of legal issues.

EDITOR’S NOTE: Jim Hanson is the long-time manager of the Albert Lea (MN) Municipal Airport. Now in his 50th year as a pilot, Hanson has been active as a promoter of both public and private airports in the area. If you would like to become involved in saving or promoting private (or public) airports, contact the Recreational Aviation Foundation as listed above. You can also contact Jim Hanson at jimhanson@deskmedia.com or at the airport at 507-373-0608.

Sidebar: The following information is from the Recreational Aviation Foundation. Used with permission.

Recreational Use Statutes

All states in the USA have recreational use statutes that immunize landowners from liability when they allow the public to enter their land for recreational activities. Few states, however, expressly set forth airstrips and associated aircraft operations as a form of recreational activity. While the laws are similar in many respects, states differ in terms of the type of land protected, whether the land needs to be suitable for recreation, and the types of individuals and organizations that may qualify as landowners. States also vary with regard to the recreational activities covered and whether landowners need to give permission for the public to engage in those activities in order to receive protection. If landowners impose charges on the users, the laws may no longer protect the owners. Questions arise over the duty of care and whether the owner acted willfully or maliciously in endangering users. The variety of questions raised indicates that pilots and airstrip owners in the various states would benefit from a thorough review and possible revision of their recreational use statutes to ascertain if aviation activities are specifically included within the provisions of their states’ recreational use statute.

What Is A Recreational Use Statute?

“Recreational Use Statute” is a term given to legislation generally intended to promote public recreational use of privately owned land. The statute does this by granting landowners some protection from liability for personal injuries or property damage suffered by land users pursuing recreational activities on the owner’s land. The underlying policy of a Recreational Use Statute is that the public’s need for recreational land has outpaced the ability of local, state, and federal governments to provide such areas and that owners of large acreages of land should be encouraged to help meet this need. Changes in lifestyle and the environment during the last few decades further support this rationale. These changes include increases in the material wealth and leisure time of urban residents enabling them to spend more time on recreation, a decline in the amount of public recreational space available to urban residents, an increased awareness of the health and fitness benefits of recreation, a desire to provide the public with opportunities to enjoy the benefits of modern environmental control, and a response to increased private tort litigation of recreational accidents.

How Does A Recreational Use Statute Work?

Generally speaking, a Recreational Use Statute (R.U.S.) provides that a landowner owes, to one using his of her property for recreational purposes and without charge, neither a duty of care to keep the property safe for entry or use, nor a duty to give any warning of a dangerous condition, use, structure, or activity on the property. Under prior common law (law made by court rulings), the landowner had different duties of care depending on whether a person was on the land as an invitee, licensee, or a trespasser. The greatest duty of care was owed to an invitee and no duty was owed to an unknown, adult trespasser. Under an RUS, recreational users are treated in the same manner as trespassers and thus the landowner owes them no duty of care. The protection of the statute is lost, however, if the landowner charges for the use of the land or if the landowner is guilty of malicious conduct.

When Is A Landowner Protected By A Recreational Use Statute?

The principal question addressed by courts in personal injury and wrongful death litigation where a RUS is in effect, is whether the statute applied under the facts that existed at the time of injury or death. If the facts are determined to be outside of the statute, liability will be determined in accordance with principles of state common law. For instance, if the court determines that the landowner didn’t qualify as an “owner” defined by the statute (see below), the facts would be considered to be outside of the protection of the statute. Each state’s RUS was drafted with conditions specific to that state in mind. Therefore, landowner liability can vary greatly from state to state. Furthermore, judicial interpretations of the various statutes differ greatly, such that similar statutes may yield very different results when tested in court. It is therefore very important to check your state’s RUS to see how much protection it offers and how the state court has interpreted it. A Recreational Use Statute acts as a deterrent to lawsuits…not total protection against lawsuits.

Who Qualifies As A “Landowner” Under A Recreational Use Statute?

In order to be protected under a Recreational Use Statute, a person must qualify as an “owner” under the statute. Most Recreational Use Statutes broadly define owner to include the legal owner of the land, a tenant, lessee, occupant or person in control of the premises. Some statutes also consider the holder of an easement an “owner.” A very important issue is whether or not a public entity or municipality qualifies as an “owner” under the state’s Recreational Use Statute. Some statutes specifically include public entities in the definition of “owner” (e.g. Alabama, Illinois, Ohio), while others specifically exclude them (e.g. Florida, Iowa, Minnesota). Still others are silent on the issue and have left it to the courts to decide. Thus, in the states that include public entities as owners under their RUS, public land falls within the protection of the statute.

What Type of Land Falls Within The Scope of The Statute?

Most Recreational Use Statutes apply broadly to land and water areas, as well as to buildings, structures, and machinery or equipment on the land. Again, each state will vary in how broad the statute and its interpretation will go with respect to what constitutes “premises” covered by the statute. Some states will follow closely the intent of the statute and include only those lands amenable to recreational use (for example, under Louisiana’s RUS, the land must be an undeveloped, nonresidential rural or semi-rural land area in order to fall within the protection of the statute), while others will make a much broader interpretation and only consider whether a recreational activity had taken place on the land, regardless of how suitable that land was for recreational use (e.g. California, Connecticut).

What Activity, Use or Purpose Qualifies As “Recreational?”

Many Recreational Use Statutes include, in the text of the statute, a definition of “recreational use” or “recreational purpose.” These definitions usually include a list of activities such as hiking, swimming, fishing, pleasure driving, nature study, etc. The phrase “includes, but is not limited to” also appears in order to prevent a narrow interpretation of what constitutes a “recreational use.” Some courts, however, limit the definition to only those activities that can be pursued outdoors (e.g. Louisiana, Washington). Presumably, mountain bicycling would be considered a “recreational use” of land by most courts even if it is not specifically listed in the definition of “recreational use” or “recreational activity.” However, it would be advisable to not rely on the courts to determine if a particular recreational activity is covered under the RUS. Therefore, airstrips and their associated aviation activities should be enumerated in the statute.

Limitations of A Recreational Use Statute

Generally, the liability protection of a recreational use statute is lost if the landowner charges for the use of the land or if the landowner is guilty of malicious conduct, like purposely placing an obstacle on the runway.

Summary

It would behoove airstrip owners and pilots to research their respective state’s RUS to determine its current efficacy in protecting the landowner, as well as determining if the RUS would include aviation-related activities.

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