concurring.
[¶ 43] I concur in the result reached by Justice Maring, writing for the majority. Regarding the issue of recreational use immunity, there is concededly some tension between the result we reach in this case and our decision in Leet v. City of Minot, 2006 ND 191, 721 N.W.2d 398, and between the decision in this case and my dissent, joined by Justice Sandstrom, in Hovland v. City of Grand Forks, 1997 ND 95, ¶ 21, 563 N.W.2d 384.
[¶ 44] In Hovland, the issue was whether the recreational use statute shielded the City from a claim for damages resulting from the use of a bike path constructed and maintained by the City. The majority opinion in that case held the City was not immune from damages under the statute because, at the time of the injury, the statute did not apply to public lands and to apply it to all public lands used for recreational purposes might cause disparate treatment between those using the public land, the bike trail, for recreational purposes and those using it for non-recreational activities. Id. at ¶ 13. After the accident, but prior to our opinion in Hov-land, the Legislature amended the statute *730to clearly indicate that public lands were included in the definition of “land” for purposes of the recreational use statutes in Chapter 53-08, N.D.C.C. See 1997 N.D. Sess. Laws ch. 162, § 7, amending subsection 2 of N.D.C.C. § 53-08-01. That same section also amended subsection 4 of § 53-08-01 to define “Recreational purposes” to include “any activity engaged in for the purpose of exercise, relaxation, pleasure, or education.” Those definitions govern our decision in this case although they did not guide the majority’s decision in Hov-land, because they were not in effect at the time of the injury.
[¶ 45] Although I remain convinced Hovland was wrongly decided for the reasons stated in my dissent in that case, I am persuaded that even though public lands are now governed by the recreational use statute, and a section line is an unimproved “public” road, there is, as the cases cited by the majority opinion in this case indicate, a substantial and unique difference between a road whose purpose is for travel and other facilities whose primary, if not sole purpose, is for recreational use. Establishment and maintenance of public roads for the purpose of allowing the citizens to travel are among the primary responsibilities of national, state and local government. I agree the Legislature did not intend to foreclose a claim for damages by one who is using the public road for recreation or who is traveling on the road to a recreational use. Neither the primary nor incidental purpose of the ordinary public road is for recreation; rather, it is for travel and a person is entitled to travel on the road regardless of the purpose of the journey. If we are wrong in our conclusion, the Legislature presumably will amend the statute to clearly indicate its intent with regard to public roads.
[¶ 46] In Leet, we decided the City of Minot, was not shielded from liability for the injuries to a worker who was preparing the city auditorium for a Seniors event. We concluded the worker’s presence at the auditorium was for employment purposes and not for a “recreational purpose.” Under N.D.C.C. § 53-08-02 an owner of land used for recreational purposes is shielded from liability “to persons entering for such purposes” and in Leet the worker did not enter the auditorium for recreational purposes. Here the township argues that Kappenman was using the road for recreational purposes; but there is a difference between the ordinary public road and land or a facility either maintained for a recreational use or allowed to be used for recreational purposes. See Olson v. Bismarck Parks & Recreation Disk, 2002 ND 61, ¶ 6, 642 N.W.2d 864 (recognizing recreational use immunity statutes advance the important legislative goal of opening property to the public for recreational use). The ordinary road is not established for recreational use or opened for recreational use. It is a public thoroughfare upon which people travel and the purpose of their travel is immaterial. Our conclusion does not compromise the legislative goal recognized in Olson.
[¶ 47] Finally, a road established on a section line as a matter of law under N.D.C.C. § 24-07-03 is not required to be maintained. DeLair v. LaMoure County, 326 N.W.2d 55 (N.D.1982). I believe that in determining whether or not a road is in an unusually dangerous or hazardous condition it is significant that such a road which has not been maintained may, in its natural state, already be in a dangerous condition and yet imposes no duty on the township or the county.
[¶ 48] JAMES M. BEKKEN, D.J.