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Thus Saith the Court

Published: Friday, March 22, 2013 12:33 p.m. CST

As bills continue to move through both the House and Senate chambers, there is one issue that seems to have come out of nowhere, but has a significant impact on Iowa landowners’ liability. The issue stems from a recent Iowa Supreme Court decision, Sallee v. Stewart, where the court essentially invalidated the Iowa recreational use statute in its present form.

To be more specific, this decision has the real potential of ending recreational use of privately owned land, such as hunting, fishing, swimming, boating, camping, hiking, school field trips, et cetera. I probably had most everyone’s attention at “hunting and fishing.”

The nearly 50-year-old recreational use statute in Iowa Code has provided liability protection primarily for farmers and other rural landowners who allow public access to their lands for recreational purposes. With the court’s Salle decision, those protections seem to have been dismantled via judicial interpretation.

Iowa State University’s Center for Agricultural Law and Taxation has issued a bulletin which is an excellent resource in explaining the background and legal ramifications of the 75-page Salle decision. The authors of this bulletin, Erika Eckley and Roger McEowen, conclude:

“Landowners should take steps to protect themselves by preventing entry by any persons upon their property, within their structures, or upon their farms. The promised liability protection for opening agricultural land to others for recreational purposes no longer exists. The risks of continuing the practice are great with limited opportunities to guard against liability.”

To remedy this situation, a bill has been drafted and is working its way through the House of Representatives, House File 605. This bill essentially replaces all the original intent of the recreational use statute that was stripped out by the Salle decision.

House File 605 first originated in the House Agriculture Committee, but has since been referred to the House Judiciary Committee. As a member of the Judiciary Committee, I have been assigned the chair of the bill’s subcommittee. I will be working with my fellow subcommittee members to assure its passage in the House so that it can move on to the Senate as quickly as possible.

Those who oppose House File 605 argue that the reaction to the Salle decision is overstated and therefore the bill is unnecessary or at the very least should be amended to remove the language that explicitly defines the intent. Question: If we removed the explicit intent of the bill, what would be the point of passing it?

Here’s the reality of the situation: If nothing more is done (or nothing of substance is done) private landowners will no longer allow anyone onto their land for any reason, period. No more hunting in Farmer Brown’s timber. No more fishing at Uncle Gary’s pond. No more school field trips to show city kids how an Iowa farm operates. None of that. Thanks to Salle no private property owner would dare take the risk.

This is not a partisan issue. This is not even an urban vs. rural issue (especially since most city dwellers that enjoy outdoor recreational activities, like hunting and fishing, rely on access to rural, privately-owned land). This is an issue that strikes at the heart of a long-standing way of life here in Iowa. If we are to preserve that way of life, then the Legislature must pass House File 605 and get it to the Governor’s desk.

This Salle decision also presents another great teachable moment in our republican form of government: Judges do not make law. The Legislature does.

For far too long, our society has been hoodwinked into believing that the Judicial Branch is the final arbiter of what constitutes law. I have news for you: It’s not. Actually, the branch of government which is closest to the people, the Legislature, has the responsibility to make law.

The situation with Salle is a case in point. Just because we have been accustomed to capitulation every time the words are thundered “Thus saith the Court..” doesn’t mean that it’s “game over” for the issue. On the contrary, the Legislature has the constitutional role (and in many cases, duty) to respond and correct any overreach of Judicial authority.

We are doing it in the Salle case. We need to find the courage to address many other cases like it.

As always, I appreciated and welcome your comments and feedback. Please feel free to contact me with your issues or concerns as they arise either by phone (515-281-3221), e-mail (greg.heartsill@legis.iowa.gov), or in person when visiting the Capitol or a town hall forum.

I consider it an honor to be your representative in the Iowa Legislature. Until next time, God bless!

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