ISA Got it Wrong?

[Fredmo]

Just got the new Bulletin and as always, read it cover to cover. I was a little surprised to see the Conservation Report take the Supreme Court to task and tie them to ITLA, the Illinois Trial Lawyers Association. In an effort at full disclosure, I admit to having been an ITLA member in years past. But that was because my law firm did defense work and we wanted to know what the other side was up to. I have been a member of IDC, Illinois Association of Defense Trial Counsel, for a big part of my professional life,, and was a director for 9 years.

Disclosure aside, I take exception to Mike Clifford's characterization of the Supreme Court's decision in Hall v. Henn, the case that told us that when a statute applies to use of land open to the public, it means it applies to land that is open to the public, not private clubs or close personal friends. And Robert Thomas, the former Chicago Bear, and later lawyer and Judge, wrote the opinion, not ITLA. There was an amicus brief written by ITLA, but they write lots of amicus briefs, and sometimes the cases are decided in accord with the ITLA position, and sometimes they are not. I'm not at all sure how Mike got the idea the Court and ITLA "teamed up" on this one. I read the decision when it came out, and it made sense to me that when the law said liability protection was afforded to lands open to public use, it didn't mean the same protection was afforded lands only available to invited guests. This was not a "technical reason", but a plain reading of fairly common language, and not difficult to understand.

I'm also not sure what Mike meant in saying that ITLA has not benefited in a single instance since the change was made. I don't think ITLA members are particularly more active in outdoor recreational activities than other attorneys or ISA members. They're a bunch of attorneys who represent injured parties, for the most part.

All this aside, I agree we need to do what we can to encourage the legislature to make our lakes, rivers, streams, trails and other recreational space available to the greatest extent possible. It may be that HB6072 is something we want to support and encourage. I haven't read the bill yet, but if it helps open land to use by the public, without being discriminatory, we sure want to support it.

I think my reaction to Mike's article was partly because I wouldn't give ITLA the credit Mike did. Instead, I think our legislators didn't draft a particularly good bill, and the Court pointed it out. Let's help them get it right the next time.

[jim bielecki]

House Bill 6072 has not passed yet. If I am correct in reading this HB 6072 limits the liabilities of landowners if their land is accessed by others. HB6072 also allows public passage on private property to gain access to a public park or waterway. http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=76&GA=96&DocTypeId=HB&DocNum=6072&GAID=10&LegID=51980&SpecSess=&Session=

 

"Recreational or conservation purpose" means: ....

(2) "entry by the general public onto the land of

14 "nother for any activity undertaken for conservation,

15 resource management, education, hiking, climbing, cycling,

16 picnicking, swimming, fishing, horseback riding, bird

17 watching, sight-seeing, skiing, ice skating, sledding, use

18 of non-motorized watercraft, and the use of an easement to

19 permit public passage across such land for access to a

20 public park, historic site, trail, water area, or other

21 public recreational area. "

 

Although this bill would permit access to public areas, it does not specifically state what areas are considered public...that would be great if it stated all waterways, regardless of depth or size!!!!

 

Does this mean that if I am walking through someone's yard to get access to the river (which I know is a public waterway), the land owner cannot charge me with tresspassing?

[Fredmo]

I haven't read the proposed bill, but I doubt seriously that the legislature could allow you to cross someone's land without their permission, or contrary to their express prohibition, and avoid trespass charges (civil or criminal). What I think we want to do is say that if a landowner allows you to cross over their land for recreational purposes and you are injured, the landowner will not be liable to you for your injury.

[Mike Clifford]

My article was in regard to the fact wording was removed from the Recreational Use of Land and Water Areas Act, not the original Act as decided in Hall vs. Henn.

That's a huge distinction, and I'll stick to the 2 sentences I wrote regarding this in my article.

 

http://www.ilga.gov/...ater+Areas+Act.

 

 

In 2005, however, the law was changed, affording protection to landowners who open their property for hunting and shooting ONLY—safeguards relating to all other activities disappeared.

 

The previous wording that was removed is expected to be re-instated (and more, as Jim writes above) in a new version of the act.

When I attended Conservation Congress in October, here is what I stood and asked during discussion on this topic:

"I understand that the ITLA played a major part in getting the initial wording removed, but what initially facilitated the need to do so?".

I've been told that ITLA was a major factor several times by several people over recent years that were there at the time. Perhaps I should have researched it further before writing that one sentence, but the sources were beyond solid....they were part of the process that changed the Act by stripping the provisions.

A former President of the ITLA pulled me aside and we agreed to discuss the matter during break, which we did.

I was informed that anglers and conservationists didn't have a strong voice (nowhere near that of the hunting/shooting community) and were left high and dry.

This was corroborated later through further discussions with Open Lands, the group leading the charge on the new Bill.

Much of the rest of the article is directly from theirs and Prairie Rivers Network's latest action alerts towards support for the new Bill.

[Fredmo]

Thanks for clarifying some of that for me. I may have misunderstood what you were referencing. You are talking about things I gather that occurred after the Supreme Court decision. I still don't get any connection then between ITLA and the Supreme Court. The Court didn't modify the statute later, did they? That's not how I understand later modification of a statute would occur.

[Mike Clifford]

Thanks for clarifying some of that for me. I may have misunderstood what you were referencing. You are talking about things I gather that occurred after the Supreme Court decision. I still don't get any connection then between ITLA and the Supreme Court. The Court didn't modify the statute later, did they? That's not how I understand later modification of a statute would occur.

That's an interesting question to ponder.

It has me thinking about the SWANCC case several years ago whereby the Supreme Court removed Federal protection of isolated wetlands.

 

What did the U.S. Supreme Court decide in the SWANCC decision?

 

http://www.aswm.org/propub/8_swancc_6_26_06.pdf

[rprice]

Wow! Mike's link to the law itself was very instructive. The problem I see is Section 2 part ©

 

© "Recreational or conservation purpose" means entry onto the land of another to conduct hunting or recreational shooting or a combination thereof or any activity solely related to the aforesaid hunting or recreational shooting.

 

which defines Recreational or Conservation "purposes" as hunting and shooting as though it's the only form of recreation in IL. Clearly this redrafted law was drawn-up at the behest of a wealthy contributor to a political party/candidate OR possibly a powerful ITLA member who hunts a great deal and had been denied access to prime property because the owner feared the potential for a law-suit (I couldn't get that crap done-- could you?). The unintended consequence was that landowners are no longer protected from liability should any non-hunting related activities result in personal injury on a private property. So the IL Farm Bureau (a WA guess) starts advising its members to cease permitting friends and strangers alike to use their property to go fishing, ice skating, rafting, tree climbing, and even bird watching I suppose (you never know when someone might trip and fall while trying to get a better glimpse of the red-breasted whippoorwill).

 

Mike implies that the ITLA may have expected to benefit from a series of land use law suits but I'm far more cynical. I think this is a law written so one powerful dude could hunt where he wanted to hunt cause he couldn't buy what he wanted to buy (the land itself). That's my theory- nothing else makes sense.

 

What the former president of ITLA was apparently trying to say was that they'd have gladly inserted fishing and canoeing into the language if they had bothered to think of that as recreation at the time. It just never occurred to them.

 

There were cracker commercials a while back that had the catch phrase "Get Your Own Box!" I think that's about it.