The Cart Before the Horse: Part I -- Unexpected Liability
Mar 14, 2013
All states that border the Mississippi River are working toward a reduction in the flow of nitrogen and phosphates into the watershed as requested by the EPA. Each state will be able to make their own plan at such a reduction, and some states have already jumped in with both feet. This is part one of three blogs that look at possible pitfalls for growers in new legislation. Part one reveals the dismay of landowners and growers at legislation that, in their words, 'got the cart before the horse' on another water quality related piece of legislation.
No matter what state you may live in, the following is a testament to the power of knowledge in the hands of growers. As each state begins to pitch its own version of a Nutrient Reduction Strategy -- and, indeed, any legislation with ramifications on the farm -- growers and landowners alike must know and understand exactly what is being asked of them, and must make equally certain to speak out when legislators come to town.
Some tough questions came up last week at a town-hall style meeting in Grundy Center, Iowa and your Inputs Monitor was there. Iowa Ag Secretary Bill Northey was joined by Iowa Ag Committee Chair, Republican Pat Grassley and Republican Senate Minority Leader Bill Dix from Iowa's ninth district. The three leaders introduced themselves and spoke briefly about Iowa's proposed Nutrient Reduction Strategy before questions from growers and landowners sidetracked the conversation.
The questions revolved around Designated Water Trail (DWT) legislation which, according to one attendee, got the 'cart before the horse' in Iowa. The growers on hand felt strongly that DWT, while honorable in its intent to encourage outdoor recreation in the state, increases farmers' liability and lawsuit exposure -- despite verbiage to the contrary in drafts of the bill. (Read Iowa State's 'Iowa's Recreational Use Immunity -- Now You See it, Now You Don't' for more detail.)
The Iowa State article mentioned above lays out the backstory...
"The facts of the case are straightforward. The plaintiff was a chaperone for her daughter’s kindergarten class field trip to the defendants’ dairy farm. The kindergarten teacher had been invited to bring her class to the farm on an annual basis for 25 years. During this visit, the group was guided by the defendants to different activities, such as horseback riding, calf feeding, tractor viewing, and playing in the hayloft. The plaintiff was in the hayloft with the children when the hay bale on which she was standing gave way and she fell down a chute to the floor six feet below. As a result, she broke her wrist and ankle. The plaintiff sued the defendants alleging that they breached their duty to maintain the premises in a safe manner."
While the bill associated with DWT legislation -- Iowa Code 461C -- releases land owners and farmers from liability for unaccompanied visitors to the property, the spirit of the bill changes considerably when the landowner/farmer choose to accompany guests and participate themselves in the recreational activities. If the landowner/farmer is acting as a tourguide or facilitating horseback riding or even a simple hayride, the landowner/farmer can be held liable for any injury that may result. This is where we pick up the conversation....
GROWER: We have Black Hawk Creek as a designated water trail - it doesn't always run, sometimes you can walk across it. The issue there is first of all, I don't think we should be spending the money on Black Hawk Creek. There are other areas that might get better use of that money than for only one or two kayakers -- spending money on signs, the liability of private ownership, the liability of the cows' pasture and fences, liability of getting an ambulance out to the creek, through a cornfield. The DNR used 461 and thought that would be a blanket for us poor people out here…now this code doesn't even work, they didn't even know it when he came to our meeting about overturning that. It was news to him.
If you want us, and most of us here that are involved with Farm Bureau, I've had kids out, I've had foreign visitors - you want to show people what you are doing so they understand so we have less conflict between urban and rural. Now we can't even do that unless we take a greater risk in doing it. They could have avoided all of this if they would have talked to the Farm Bureau or other Ag groups. They would have made them aware of that liability issue. Now if they had proceeded, that's fine, but they at least would have maybe avoided some problems.
LANDOWNER: Even before this got going at the meeting, the letters did go out to the landowners. When I went to the meeting to see what was going on, this is last, what October or November when the meeting was, I was handed a brochure. It was already in fancy print and ready to go. And that's when I said, 'don't you think you've got the cart before the horse?'
GRASSLEY: Was that put together by the local folks or the DNR? The reason I say that is because, again to get the grant you had to have - it was handled backwards and I agree with that…
GROWER: Its not a very good common-sense approach Pat and I'm not blaming you but I'm just saying the signs being put up intimidate people to even question 'cause then you think it's a done deal.
GRASSLEY: I agree. This is a perfect example of why people don't trust government…
GROWER: ...it's a total disregard for private property rights quite frankly…
GRASSLEY: ...and I agree with that. Again, I would just encourage you, regardless of where you stand on it to contact your supervisors. That's what I've been told to pass along to you guys here in Grundy County, so I'm passing that message along from what I was told at the state level. Senator Dix, anything to add?
DIX: Nothing other than to add I'm not aware at the moment of a bill that's working through the process in the senate. We will do what we can to shepherd whatever comes over from the house.
GROWER: The ratio here as far as how many kayakers are going to use Black Hawk Creek is questionable and maybe that money could have done more good in some other areas in Iowa's recreation and we are all for Iowa recreation, but this whole thing has gotten out of hand and now with the liability issue, I mean, when I want to invite school kids or I want to have urban visitors - we have had people from Russia, Turkey…I know people that won't do it. I'll probably still take the risk even if it doesn't get changed but there will be a lot of people that wouldn't.
GRASSLEY: Again, I don't want to say the bill as drafted will pass. I feel confident that we will work to address the issue and I know Senator Dix worked on it, what are your thoughts as to how that would be received in the senate?
DIX: I really don't know. The senate is a very different dynamic…
GRASSLEY: I shouldn't have put you on the spot…(laughs)
DIX: Ha ha -- From the position I'm in at the senate, I'm the leader of the republicans who are 24 to 26 and so the committee makeup is not favorable to us. It is something that, we do have some relationships and I don't want to overlook that, but we will do what we can and try to figure out a way to…
GROWER: I would think this would be common ground here.
DIX: ...yes, but at the same time, leaders in some of those committees, they don't always see these issues in the same way, so frankly, I haven't had these conversations with those folks, so we will just have to see where we can take it.
Part two of this report will take the conversation one step further when Iowa Secretary of Agriculture Bill Northey speaks to reassure growers that Iowa's proposed Nutrient Reduction Strategy will not get the cart before the horse in the same way. Look for it on your Inputs Monitor next Friday, March 15.