Author: Jesse Richardson

Landowners often wonder what steps need to be taken to prevent injuries to people that come onto their property. In legal terms, this area of law is referred to as premises liability. Landowners owe persons on their property a duty based on the status of the visitor. Visitors can generally be divided into the categories of invitee, licensee, and trespasser. This article focuses on a special, and controversial category of visitors, the child trespasser. While this article lays out a general description of the law, the details may differ by state.

Our civil law system is built upon a system of duties owed by people and companies to others. For a successful civil lawsuit, an injured party (the plaintiff) must show that the defendant had a duty to the plaintiff, that the defendant breached that duty, and that the breach of the duty caused injury to the plaintiff.

For trespassers generally, a landowner owes the trespasser a duty to not willfully or wantonly injure the trespasser. Invitees and licensees are owed higher duties. For example, a landowner who sets up a spring gun at their storage shed, which fires when someone attempts to enter the building, would be liable to injuries to a trespasser attempting to break into the building. Booby traps, even when aimed at criminals on the property, subject the landowner to liability.

But what about a child that trespasses onto your property? A child may not appreciate certain hazards. Where the landowner has no reason to believe that a child would be on the property, the duty generally remains the same – no willful or wanton injury. However, if a landowner knows or should know that a child may come onto the property, the landowner has a duty to take reasonable care to avoid injury to the child and to warn the child of dangers known by the landowner.

In addition, if a dangerous instrumentality is on the property, the landowner has a duty to barricade the property or warn of the danger. A farm pond is not necessarily a dangerous instrumentality, but may become so if unique circumstances exist, such as a steep side slope or sudden drop off. A rope swing is not necessarily a dangerous instrumentality. Note that if a local ordinance requires, for example, a fence around a pool, the pool may be a dangerous instrumentality if no fence exists.

Finally, most states recognize the doctrine of attractive nuisance. The attractive nuisance doctrine states that where the landowner maintains a condition on their property that attracts children, the child is no longer a trespasser but is an invitee. Consequently, the landowner owes a higher duty to take ordinary care to keep the condition in a reasonably safe condition to protect the child. Natural conditions on the property cannot qualify as attractive nuisances.

For the farm owner or operator, the related so-called “unguarded dangerous conditions” present the biggest threat. For example, the landowner leaves the key in the tractor and the tractor is left outside. The farm is located in a suburban area, with families living nearby. If a child trespasses onto the property, starts the tractor, and is injured, a court may find the farm owner liable for injuries. Similarly, although a swing rope or farm pond with a dock does not necessarily qualify as a dangerous instrumentality, those types of conditions may qualify as attractive nuisances or unguarded dangerous conditions.

The lesson from these often-confusing legal doctrines is that the farm owner or operator should use an abundance of caution to be safe rather than sorry. Take keys out of tractors and store them in a safe area. Lock barns and sheds. Barricade areas that you do not wish the public to access. Inspect the property regularly and think about what areas may be dangerous to a child trespasser, then take steps to make the area off-limits or safe for trespassers. Finally, maintain adequate liability insurance.

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Richardson, Jesse, and Paul Goeringer. “Duty to Child Trespassers.” Southern Ag Today 5(3.5). January 17, 2025. Permalink

On June 21, 2024, the United States Supreme Court issued an opinion in the long-running dispute between Texas and New Mexico over the 1938 Rio Grande Compact. The Court, in a 5-4 decision, held that the federal government could block an agreement between Texas and New Mexico to resolve their dispute. Although the compact relates to the river, the dispute centers on groundwater pumping. 

Texas filed suit against New Mexico in 2013, alleging that excessive groundwater pumping in New Mexico deprived Texas of its fair share of Rio Grande water under the compact.  Note that lawsuits between states originate in the United States Supreme Court. The Court appoints a Special Master to hold hearings and make recommendations to the Court, which ultimately decides the issues.

Unlike most compacts, the Rio Grande Compact requires New Mexico to deliver water not to the New Mexico/Texas border, but to Elephant Butte Reservoir, a federal project about 100 miles north of the border. Texas alleged that groundwater pumping along the river between the Elephant Butte Reservoir and the state line took water from the river that rightfully belonged to Texas.  

The federal government filed a motion to intervene in the litigation in 2014, alleging that its interest in the federal project at Elephant Butte allowed intervention to protect the government’s rights and obligations. The federal government, through Downstream Contracts, was required to deliver water to an irrigation district in New Mexico, and one in Texas. The Court allowed the federal government to intervene, a relatively rare occurrence, because of the unique circumstances of the case and the fact that its interests aligned with those of Texas.

Texas’ lawsuit focused on increased groundwater pumping between the Elephant Butte Reservoir and the state line. While the federal government had operated the reservoir based on data from 1951 to 1978 (“D2 data”), a time period where groundwater pumping increased significantly in New Mexico, Texas asked for allocations to be based on 1938 data, when there was much less groundwater pumping in New Mexico. The United States, which had operated based on the later for decades, did not request a change.

After 10 years of hearings and litigation, Texas and New Mexico agreed on a consent decree, settling the issues between the states. The agreement continued water allocations based on the D2 period, which favors New Mexico, but measured the water delivery at El Paso, which favors Texas. Complex accounting measures in the agreement ensured that Texas would receive the state’s fair share of water. 

However, the federal government objected to the agreement, claiming that its interests in administering the water project were threatened. In addition, for the first time, the federal government claimed that the water allocation should be based on 1938 levels of groundwater withdrawals. New Mexico estimates that a forced reduction in groundwater withdrawals to 1938 levels would mean a loss of 50,000 jobs and 10% of the state’s gross domestic product.

Justice Jackson, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh wrote the majority opinion. The majority found that the federal government had independent claims that would be resolved by the agreement. Given that the government was now a party, the agreement could not resolve the government’s interests without its consent. Since the government’s interests were aligned with those of Texas, and Texas had requested a 1938 baseline, the government was deemed to make a similar request. Given the close connection between the compact, the federal project and the irrigation contracts, the government must agree to any resolution of the case.

Justice Gorsuch, who also authored the Court’s 2018 unanimous opinion allowing the United States to intervene, wrote the dissenting opinion, and was joined by Justices Thomas, Alito, and Barrett. The dissenters summarized their position as follows:

The Court’s decision … defies 100 years of this Court’s water law jurisprudence. And it represents a serious assault on the power of States to govern, as they always have, the water rights of users in their jurisdictions. The Special Master issued a detailed 115-page report laying all this out. His views were wise, his recommendations sound, and, respectfully, we should have done as he suggested.

The dissenters opine that the Court denied the entry of the consent decree “[b]ecause the federal government demands as much.” In addition, the federal government could not assert these claims alone in the Court but would have to file a lawsuit in the lower court.

Given the number of federal water projects in the United States, and increasing disputes between surface water and groundwater users, this decision could allow the federal government to take control of groundwater allocations in a large number of situations. Groundwater users generally lose these disputes because groundwater withdrawals generally began after surface water withdrawals. Since the surface water users have seniority, surface water withdrawals receive priority. The decision may cause large cuts in groundwater withdrawals in New Mexico, as well as put groundwater users in jeopardy wherever federal water projects exist. As in this case, the competing uses will likely include large agricultural users. New Mexico and Texas will now have to start back at square one.

In November 2022, Texas, New Mexico, and Colorado reached an agreement to resolve the long-standing dispute between the states over whether New Mexico delivers appropriate amounts of water to Texas under the Rio Grande Compact. However, the United States objects to the agreement and asserts that the federal government must agree before any agreement is implemented. The Special Master recommended that the United States Supreme Court approve the agreement over the objections of the federal government. The Court recently agreed to hear oral arguments on the issue on March 20. The decision raises important questions about the role of the federal government in water allocation agreements between states, which have traditionally held absolute authority with respect to water rights. 

The decision will be important to agriculture since agricultural water withdrawals generally constitute the leading use of water. Agricultural withdrawals also form the focus of many interstate water disputes. Several producer groups and agricultural irrigation organizations have filed friend-of-court briefs supporting approval of the agreement.

Texas filed a complaint in 2013, alleging that New Mexico was not delivering the amount of water to Texas required under the Rio Grande Compact. In 2014, the Court allowed the federal government to intervene in the case, and the federal government filed its own complaint, noting that the United States has an obligation to deliver water from the Rio Grande to Mexico under a treaty between the nations, and the federal government manages a large water project on the river. In 2018 the Court denied New Mexico’s motion to dismiss both complaints. 

After years of negotiation, the states reached an agreement that bases water allocations on a hydrologic formula and provides penalties against New Mexico for annual or cumulative departures from that allocation that exceed certain amounts. The penalties are in the form of allocated water transfers from New Mexico to Texas.

The agreement is unique and may provide a model for future agreements. A decision by the Court that allows the federal government to exert control over agreements between the states on water allocation would interject even more uncertainty. The federal government could conceivably regulate the use of surface water and groundwater for agricultural production within the states, a role that states jealously guard. Twenty-three states have filed a friend-of-court brief urging the Court to approve the agreement.

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Richards, Jesse, and Tiffany Lashmet. “United States Supreme Court to Hear Oral Arguments in Texas v. New Mexico Water Dispute.” Southern Ag Today 4(6.5). February 9, 2024. Permalink

Whether your operation emphasizes the agricultural aspect or the tourism aspect of agritourism matters in several legal issues. This article briefly describes some of the pitfalls of having the tourism aspects dominate the agricultural aspects. However, except for federal income taxation, these issues differ from state to state. In addition, this article cannot begin to explore the nuance of these issues. Therefore, this article intends to alert the reader to these issues. You should consult with your attorney and tax advisor for advice.

Agritourism Generally

One definition of agritourism defines the term as “a form of commercial enterprise that links agricultural production and/or processing with tourism to attract visitors to a farm, ranch, or other agricultural business for purposes of entertaining and/or educating visitors and generating income for the farm, ranch, or business owner.”^[1] Like most definitions of agritourism, this definition connects the tourism activity to a farm, ranch or agricultural business. This connection proves particularly important in zoning

Zoning

In general, local governments are free to define agritourism in zoning ordinances differently than any state definitions. Theoretically, every local government could define agritourism differently from any other local government for zoning purposes. However, most zoning definitions share some common elements.

In zoning terminology, the connection between tourism and agriculture makes agritourism activity an accessory use on the land. The agricultural use is the property’s principal use, or primary use. Accessory uses are uses that are subordinate and customarily incidental to the principal use. 

A use is subordinate where the use does not dominate the parcel. Courts look at how much land area is encompassed by each use, how many employees are engaged in each use, and revenue generated by each use. The agricultural (or principal use in this case) should dominate the parcel of land.

Customarily incidental means that the accessory use is an activity that one would consider a normal part of or related to the primary use. For example, a pick-your-own operation is customarily incidental to an apple orchard. A corn maze may be customarily incidental to an operation that grows hay. A bouncy house does not appear to be customarily incidental to any farming operation. 

Exemptions from Zoning

Some states exempt agritourism from zoning regulations. To qualify, the activity must meet similar requirements to the accessory use definition. For example, a North Carolina court^[2] identified three main factors to determine whether an activity is agritourism and, therefore, exempt under North Carolina law. First, the agritourism activity derives some value from or requires the farm or natural setting. Second, the legal risk factor should align with that of the farm use, and third, the agritourism use does not require much in the way of artificial structures or alterations to the land.

Agritourism Liability Acts

Many Agritourism Liability Acts similarly define agritourism as “an activity carried out on a farm or ranch.”^[3] Without the principal use of the farm or ranch, the liability protection may be lost.

Use Value Assessment for Real Property Tax Purposes

Use value assessment for real property tax purposes also depends upon the agricultural use of the land. When income from non-agricultural uses exceeds income from agricultural uses, use value assessment may be denied.^[4]

Federal Income Tax

Persons engaged in “farming” report farm income on the Schedule F for federal income tax purposes. Farm income is treated differently in many ways than other business income to the benefit of the farmer. However, most “agritourism” income does not likely qualify as “farm income.” If the agritourism income is more than “incidental” (which is difficult to define), the agritourism income should be segregated and reported separately on Schedule C.^[5]

Conclusions

Agritourism provides producers with the opportunity to generate additional income to supplement income from production activities. However, with additional income and success with agritourism activities come the potential for loss of the preferential treatment of agricultural in several legal settings. Operators should be careful to consider these consequences when planning agritourism activities.  

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^[1] National Agricultural Law Center, Agritourism, https://nationalaglawcenter.org/research-by-topic/agritourism-2/

^[2] Jeffries et al v. Harnett County, 259 N.C. App. 473 (2018), cert. denied 826 S.E.2d 710 (2019). See https://canons.sog.unc.edu/2022/07/what-the-heck-is-agritourism/ for a more in depth discussion of the case.

^[3] See, e.g., Virginia Code § 3.2-6400.

^[4] See, e.g., Settimi v. Irby, 2022 WL 292317 (Supr. Ct. of W.Va.).

^[5] Email correspondence with Kristine A. Tidgren, Iowa State University, February 5, 2023. For more information on farm income generally, see https://www.calt.iastate.edu/article/reporting-farm-income-overview

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Richardson, Jesse J. “Is Your Operation AGRItourism or AgriTOURISM?” Southern Ag Today 3(31.5). August 4, 2023. Permalink

On January 18, 2023, the United States District Court for the Northern District of Oklahoma ruled on a lawsuit filed by the State of Oklahoma against 11 poultry producers. The lawsuit alleged that the poultry producers polluted and continue to pollute the Illinois River with phosphorus and bacteria from poultry litter applied to lands in the Illinois River watershed.

The original lawsuit included 11 causes of action. The court dismissed six causes of action before trial: cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); natural resource damages under CERCLA; a Solid Waste Disposal Act (SWDA) citizen suit; unjust enrichment/restitution/disgorgement; and two claims under Oklahoma state statutes and regulations. A trial was held on the following five causes of action:  violation of Resource Conservation and Recovery Act (RCRA) 42 U.S.C. § 6972; state law public nuisance and state law nuisance per se;  federal common law nuisance; trespass; and two claims under Oklahoma state law.

The court granted two posttrial motions, dismissing the RCRA claim, the per se nuisance claim, and one of the state law claims because poultry litter can have a beneficial use and was not being disposed of on the fields. On the merits, the court found that the poultry growers were liable for state law nuisance, federal common law nuisance, trespass, and one state law claim.

Oklahoma proved that each poultry grower contributed significantly to the phosphorus loading of the river and that the state need not trace the exact contribution of each. State-approved permits to apply poultry litter needed to be more specific to immunize the poultry growers from liability. In addition, Oklahoma statute prohibits the creation of an environmental or public health hazard or contamination of waterways from poultry waste handling.

Since activities in Arkansas caused damages in Oklahoma, the interstate nature of the activities implicates federal nuisance law. The court found that the Clean Water Act did not displace federal nuisance law in this instance. Further, the court found that the poultry growers have unreasonably interfered with the public’s use of the Illinois River in Oklahoma and are liable under state nuisance law and federal nuisance law.

As to trespass, the activities of the poultry growers resulted in runoff containing phosphorus entering the waters of the Illinois River, constituting a physical invasion. But, again, the state-issued permits did not immunize the poultry growers against the trespass claim. Likening the alleged violation of state law prohibiting waterway pollution to trespass, the court also found the poultry growers liable on those grounds.

The court ordered the parties to attempt to reach an agreement on the remedies and present the agreement to the court for approval on March 17, 2023. If no agreement is reached, the court will rule on the remedies.

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Richardson, Jesse. “Oklahoma Prevails in Lawsuit Against Poultry Growers for Pollution of Illinois River.” Southern Ag Today 3(7.5). February 17, 2023. Permalink

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