Public Access Incentives and Trespass Laws

Select a state below to view compendiums of recreational use/recreational trespass laws, financial incentives for landowners who allow public access, or case law for that state.

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Alabama

Recreational Use/Recreational Trespass Laws

Ala.Code 35-15-1 through 35-15-6

§ 35-15-1. No duty owed except as provided in Section 35-15-3

An owner, lessee or occupant of premises owes no duty of care to keep such premises safe for entry and use by others for hunting, fishing, trapping, camping, water sports, hiking, boating, sight-seeing, caving, climbing, rappelling or other recreational purposes or to give any warning of hazardous conditions, use of structures or activities on such premises to persons entering for the above-stated purposes, except as provided in section 35-15-3.

§ 35-15-2. Effect of permission to use premises

An owner, lessee or occupant of premises who gives permission to another to hunt, fish, trap, camp, hike, sight-see, cave, climb, rappel or engage in other sporting or recreational activities upon such premises does not thereby extend any assurance that the premises are safe for such purpose nor constitute the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed or assume responsibility for or incur liability for any injury to person or property caused by an act of such person to whom permission has been granted, except as provided in section 35-15-4.

§ 35-15-3. Otherwise existing liability not limited

This article does not limit the liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or for injury suffered in any case where permission to hunt, fish, trap, camp, hike, cave, climb, rappel or sight-see was granted for commercial enterprise for profit; or for injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike or sight-see was granted to third persons as to whom the person granting permission, or the owner, lessee or occupant of the premises owned a duty to keep the premises safe or to warn of danger.

§ 35-15-4. General duty of care or ground of liability not created

Nothing in this article creates a duty of care or ground of liability for injury to person or property.

Financial Incentives for Public Access

Property Tax Incentives:
Current Use Programs: 

Alabama does have a current use statute for timber acres and agricultural property.

Statute: Public Ala. Code 1975 § 40-7-25.2

Method of Assessment: Current use formula is based on soil productivity for agriculture and forestry.

Application: Application Requirement

http://www.revenue.alabama.gov/advalorem/other/classes.htm
http://www.revenue.alabama.gov/advalorem/other/caltax.html

Current Use Taxation for open-space land: 

Alabama has no current use taxation to promote open space or recreation.

Tax incentive specifically for providing access: 

Alabama has no tax incentives to provide hunter access.

Tax Incentive when land is subject to Conservation Easement: 

Alabama has no tax incentives for land subject to conservation easements.

Alabama does purchase certain lands and waters to be set aside, managed and preserved for use as state parks, nature preserves, recreation areas, and wildlife management areas through its Alabama Forever Wild Land Trust. Ala.Const. Art. XI, § 219.07

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Income Tax: 

Alabama has no tax credits or incentives for the donation of land or conservation easements.

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Hunter Access Program: 

No programs classified as “state administrated walk-in hunter access programs” were identified in this state via general internet search. However, for more accurate information regarding this state’s hunter access programs or efforts, please view the Hunting Heritage Action Plan Hunter Access Program Assessment Survey Report.

Case Law

Clark v. Tennessee Valley Authority, 606 F. Supp. 130 (N.D.Ala.1985)

-Sections 35-15-20 through 35-15-28 apply to noncommercial public recreational landowners and provide them with even tighter limitations than §§ 35-15-1 through 35-15-5 as to their exposure to liability to recreational users; §§ 35-15-20 through 35-15-28 recognize a public policy in Alabama to encourage public owners to allow the opening up and promotion of their facilities without exposing themselves to law suits.

Russell By and Through Russell v. TVA, 564 F.Supp. 1043 (N.D.Ala.1983)

-This section was enacted to insure that landowners were not to be held to a standard of due care toward persons upon their land with permission for hunting, fishing and recreational purposes.
-Licensee's entrance on the land carries with it no right to expect the land to be made safe for his reception, but he must assume the risk of whatever may be encountered. Once he is there, the law only requires the landowner to refrain from wantonly, maliciously or intentionally injuring him; in other words, the landowner is not liable unless he does some act which goes beyond mere negligence.

Poole v. City of Gadsden 541 So.2d 510 (Ala.1989)

-City and construction company which built boardwalk along banks of river in city park, were shielded from prosecution for the wrongful death of a swimmer who drowned after hitting his head on a submerged object while diving off the boardwalk.

George v. U.S., 735 F.Supp. 1524 (M.D.Ala.1990)

-In action for loss of consortium where alligator attacked swimmer in swimming area of national park, where park officials had actual knowledge of the alligator and the fact that he was large and had lost his natural fear of humans and was, therefore, dangerous, and where swimmer had no such knowledge, defendant's defense predicated on recreational use statute failed.

Ex parte City of Geneva, 707 So.2d 626 (Ala.1997), on remand 707 So.2d 631

-In order to achieve express purpose of recreational use statutes, those who permit public upon their lands for noncommercial recreational purposes must not be exposed to greater potential liability under recreational use statutory scheme than they would have faced at common law.

Alaska

Recreational Use/Recreational Trespass Laws

Ala. Code 1975 35.15.21 through 35-15-28; also 9.65.200

§ 35-15-21. Definitions

Unless the context thereof clearly indicates to the contrary, as used in this article the following terms shall have the following meanings:

(1) OWNER. Any public or private organization of any character, including a partnership, corporation, association, any individual, or any federal, State or local political subdivision or any agency of any of the foregoing having a legal right of possession of outdoor recreational land. For the purpose of this article, an employee or agent of the owner, but not an independent contractor while conducting activities upon the outdoor recreational land, is deemed to be an owner.

(2) OUTDOOR RECREATIONAL LAND. Land and water, as well as buildings, structures, machinery and other such appurtenances used for or susceptible of recreational use.

(3) RECREATIONAL USE or RECREATIONAL PURPOSE. Participation in or viewing of activities including, but not limited to, hunting, fishing, water sports, aerial sports, hiking, camping, picnicking, winter sports, animal or vehicular riding, or visiting, viewing or enjoying historical, archeological, scenic or scientific sites, and any related activity.

(4) PERSON. Any individual, regardless of age, maturity, or experience.

(5) COMMERCIAL RECREATIONAL USE. Any use of land for the purpose of receiving consideration for opening such land to recreational use where such use or activity is profit-motivated. Consideration does not include any benefits provided by law in accordance with this article, any other state or federal law, or in the form of good will for permitting recreational use as stated in this article; nor does consideration include a charge by the landowner for maintenance fees where the primary use of the land is for other than public recreational purposes.

§ 35-15-22. Inspection and warning not required

Except as specifically recognized by or provided in this article, an owner of outdoor recreational land who permits non-commercial public recreational use of such land owes no duty of care to inspect or keep such land safe for entry or use by any person for any recreational purpose, or to give warning of a dangerous condition, use, structure, or activity on such land to persons entering for such purposes.

§ 35-15-23. Limitations on legal liability of owner

Except as expressly provided in this article, an owner of outdoor recreational land who either invites or permits non-commercial public recreational use of such land does not by invitation or permission thereby:

(1) Extend any assurance that the outdoor recreational land is safe for any purpose;
(2) Assume responsibility for or incur legal liability for any injury to the person or property owned or controlled by a person as a result of the entry on or use of such land by such person for any recreational purpose; or
(3) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

§ 35-15-24. Otherwise existing liability not limited

(a) Nothing in this article limits in any way legal liability which otherwise might exist when such owner has actual knowledge:
(1) That the outdoor recreational land is being used for non-commercial recreational purposes;
(2) That a condition, use, structure, or activity exists which involves an unreasonable risk of death or serious bodily harm;
(3) That the condition, use, structure or activity is not apparent to the person or persons using the outdoor recreational land; and
(4) That having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.

(b) The test set forth in subsection (a) of this section shall exclude constructive knowledge by the owner as a basis of liability and does not create a duty to inspect the outdoor recreational land.

(c) Nothing in this article shall be construed to create or expand any duty or ground of liability or cause of action for injury to persons on property.

§ 35-15-25. Duty of care by persons using outdoor recreational land

Nothing in this article shall be construed to relieve any person using outdoor recreational land open for non-commercial public recreational use from any obligation which such person may have in the absence of this article to exercise care in the use of such land and in the activities thereon, or from legal consequences of failure to employ such care.

§ 35-15-26. Provisions not applicable to commercial recreational enterprise

The liability limitation provisions of this article shall not apply in any cause of action arising from acts or omissions occurring on or connected with land upon which any commercial recreational enterprise is conducted.

§ 35-15-28. Owner must establish public use

(a) The liability limitation protection of this article may be asserted only by an owner who can reasonably establish that the outdoor recreational land was open for non-commercial use to the general public at the time of the injury to a person using such land for any public recreational purpose. Any owner may create a rebuttable presumption of having opened land for non-commercial public recreational use by:
(1) Posting signs around the boundaries and at the entrance(s) of such land; or
(2) Publishing a notice in a newspaper of general circulation in the locality in which the outdoor recreational land is situated, and describing such land; or
(3) Recording a notice in the public records of any county in which any part of the outdoor recreational land is situated, and describing such land; or
(4) Any act similar to subdivisions (1), (2), or (3) of subsection (a), which is designed to put the public on notice that such outdoor recreational land is open to non-commercial public recreational use.

(b) The assertion of any of the provisions of the article by an owner shall not be construed to be (1) expressed or implied dedication; (2) granting of an easement; or (3) granting of an irrevocable license, to any person or the public to use such outdoor recreational land.

(c) Any person who enters non-commercial outdoor recreational land for any recreational purpose either with or without an invitation or permission from the owner, and either with or without knowledge that the land is held open for non-commercial public recreational use is subject to the provisions of this article.

(d) The availability of outdoor recreational land for non-commercial public use may be conditioned upon reasonable restrictions on the time, place and manner of public use as the owner shall establish.

§ 09.65.200. Tort immunity for personal injuries or death occurring on unimproved land

(a) An owner of unimproved land is not liable in tort, except for an act or omission that constitutes gross negligence or reckless or intentional misconduct, for damages for the injury to or death of a person who enters onto or remains on the unimproved portion of land if
(1) the injury or death resulted from a natural condition of the unimproved portion of the land or the person entered onto the land for recreation; and
(2) the person had no responsibility to compensate the owner for the person's use or occupancy of the land.

(b) This section does not enhance or diminish rights granted under former 43 U.S.C. 932 (R.S. 2477).

(c) In this section, "unimproved land" includes land that contains
(1) a trail;
(2) an abandoned aircraft landing area; or
(3) a road built to provide access for natural resource extraction, but which is no longer maintained or used.

Financial Incentives for Public Access

Property Tax Incentives:
Current Use Programs: 

Only 25 municipalities in Alaska levy a property tax. For the municipalities that levy tax, Alaska does have current use taxation for agricultural land.

Statute: Stat. § 29.45.060 (2008)

Method of Assessment: Full and true value for farm use http://www.commerce.state.ak.us/dca/LOGON/tax/tax-prop.htm

Application: Application required Stat. § 29.45.060 (b)

Penalty: Alaska will penalize landowners who change the current use of their land by an amount equal to the tax that would have been owed if the land wasn’t assessed as agricultural plus 8% for the preceding 7 years. Stat. § 29.45.060(a) (2008)

Current Use Taxation for open-space land: 

Alaska has no current use taxation to promote open space or recreation.

Tax incentive specifically for providing access: 

Alaska has no tax incentives to provide hunter access.

Tax Incentive when land is subject to Conservation Easement: 

Alaska does provide a tax incentive for land subject to conservation easements.

Statute: AS § 29.45.062

Valuation: Land that is subject to a conservation easement shall be assessed on the basis of full and true value for use subject to the conservation easement and may not be assessed as though it was not subject to the conservation easement. The assessor shall maintain records valuing the land for both full and true value and value subject to the conservation easement.

Penalty: The municipality may, by ordinance, require that if the land is sold, leased, or otherwise disposed of for uses incompatible with the conservation easement or if the conservation easement is conveyed to the owner of the property, the owner shall pay to the municipality an amount equal to the additional tax at the current mill levy together with eight percent interest for the preceding 10 years, as though the land had not been assessed subject to the conservation easement.

Process: To secure the assessment under this section, an owner of land subject to a conservation easement shall apply to the assessor before May 15 of each year in which the assessment is desired. The application must be made upon forms prescribed by the assessor and must include information that may reasonably be required to determine the entitlement of the applicant.

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Income Tax: 

Alaska has no tax credits or incentives for the donation of land or conservation easements.

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Hunter Access Program: 

No programs classified as “state administrated walk-in hunter access programs” were identified in this state via general internet search. However, for more accurate information regarding this state’s hunter access programs or efforts, please view the Hunting Heritage Action Plan Hunter Access Program Assessment Survey Report.

Case Law

There are no available case laws for the recreational use/recreational trespass laws of this particular state.

Arizona

Recreational Use/Recreational Trespass Laws

A.R.S. 33-1551

§ 33-1551. Duty of owner, lessee or occupant of premises to recreational or educational users; liability; definitions

(a) A public or private owner, easement holder, lessee or occupant of premises is not liable to a recreational or educational user except upon a showing that the owner, easement holder, lessee or occupant was guilty of wilful, malicious or grossly negligent conduct which was a direct cause of the injury to the recreational or educational user.

(b) This section does not limit the liability which otherwise exists for maintaining an attractive nuisance, except with respect to dams, channels, canals and lateral ditches used for flood control, agricultural, industrial, metallurgical or municipal purposes.

(c) As used in this section:
(1) "Educational user" means a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to enter upon premises to participate in an educational program, including but not limited to, the viewing of historical, natural, archaeological or scientific sights. A nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an admission fee or any other consideration as prescribed by this section.
(2) "Grossly negligent" means a knowing or reckless indifference to the health and safety of others.
(3) "Premises" means agricultural, range, open space, park, flood control, mining, forest or railroad lands, and any other similar lands, wherever located, which are available to a recreational or educational user, including, but not limited to, paved or unpaved multi-use trails and special purpose roads or trails not open to automotive use by the public and any building, improvement, fixture, water conveyance system, body of water, channel, canal or lateral, road, trail or structure on such lands.
(4) "Recreational user" means a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to travel across or to enter upon premises to hunt, fish, trap, camp, hike, ride, exercise, swim or engage in similar pursuits. The purchase of a state hunting, trapping or fishing license is not the payment of an admission fee or any other consideration as provided in this section. A nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an admission fee or any other consideration as prescribed by this section.

Financial Incentives for Public Access

Property Tax Incentives:
Current Use Programs: 

Arizona does use current use taxation for agriculture based on an income approach.

Statute: ARIZ.REV.STAT. ANN §§ 42-13402

Method of Assessment: Income Approach for agriculture
http://www.revenue.state.az.us/property/propertymenu.htm

Application: Automatic enrollment

Current Use Taxation for open-space land: 

Arizona has no current use taxation to promote open space or recreation.

Tax incentive specifically for providing access: 

Arizona does not provide a tax incentive that specifically addresses access.

Other

Statute: ARIZ.REV.STAT. ANN §§ 42-11114

Method of Assessment: Property held by a charitable organization to be used as parkland is exempt from taxation if the charitable organization does not receive rent.

Tax Incentive when land is subject to Conservation Easement: 

Arizona has no tax incentives for land subject to conservation easements. However the Arizona Department of Revenue does have guidance on how to value conservation easements.
http://www.azdor.gov/Portals/0/Brochure/conesmt.pdf

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Income Tax: 

Arizona has no income tax credits.

View all states with no tax incentives for donation of land or conservation easement Hide all states with no tax incentives for donation of land or conservation easement
Hunter Access Program: 

Number of Acres: 200,000 land walk-in/open fields program (a mixture of public and private land.)

Access Program provides funds to perform various projects with private landowners in exchange for short-term or perpetual access agreements. However, this program does not evaluate conservation benefits.

For additional information regarding this state’s hunter access programs or efforts, please view the Hunting Heritage Action Plan Hunter Access Program Assessment Survey Report.

Case Law

Newman v. Sun Valley Crushing Co. 787 P.2d 623

There is no further information regarding this case.

Smith v. Arizona Board of Regents 195 Ariz. 214

-Carnival-type apparatus temporarily placed on university property, combining a trampoline and bungee cord, did not constitute “premises,” nor was a student injured on the apparatus a “recreational user,” within the meaning of the recreational use statute, and thus, the statute did not apply to shield the university or related entities from liability; the legislature did not intend to immunize a landowner for injuries on such a transient apparatus, and the student was not engaged in the type of recreational activity contemplated by the statute.