Stedman v. State by and through Department of Forestry
| Decision Date | 08 December 2021 |
| Docket Number | A173889 |
| Citation | 316 Or.App. 203,502 P.3d 234 |
| Parties | Clifford STEDMAN, Plaintiff-Appellant, v. STATE of Oregon, acting BY AND THROUGH DEPARTMENT OF FORESTRY, a state agency, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Melissa Hopkins argued the cause for appellant. Also on the briefs was Law Offices of Judy Snyder.
Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
Plaintiff appeals from a judgment dismissing his negligence claim for personal injuries on state land. The trial court granted the state's motion for summary judgment based on the state's claim of recreational immunity under ORS 105.682(1). Plaintiff assigns error to that ruling, arguing that immunity does not apply because plaintiff purchased an operating permit for an all-terrain vehicle (ATV), and, in his view, the fee for that permit constitutes a charge for permission to use the land for purposes of ORS 105.672(1), which renders immunity inapplicable under ORS 105.688(3). We set forth those provisions later. We conclude that the fee for an ATV operating permit is not a charge for the use of the land where plaintiff was injured but is instead in the nature of a vehicle registration fee. We affirm.
Summary judgment is permitted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. We view the facts in the light most favorable to plaintiff as the nonmoving party, and we review a decision allowing summary judgment for legal error. Towe v. Sacagawea, Inc. , 357 Or. 74, 95-96, 347 P.3d 766 (2015). We state the facts in light of that standard. Our task here is a matter of statutory construction, which we review for errors of law. State v. Hunt , 270 Or. App. 206, 210, 346 P.3d 1285 (2015).
Plaintiff bought an ATV operating permit from the Oregon Parks and Recreation Department (OPRD) for his ATV. He received an ATV-permit sticker which he affixed to the rear of his Raptor 660 ATV. He also bought an ATV permit for his mini dirt-bike; and he had bought a separate ATV permit when he had a sandrail ATV. He understood that "you have to have like ATV permits and for [sic ] any vehicle you ride."
On August 19, 2017, plaintiff entered the Beaver Dam Stockpile area of the Tillamook State Forest. He did not pay anything on that day to go into the area. The area features trails designated for recreational ATV use. A notice posted on a display board at the entrance indicated that all motorized trail users were required to have an Oregon ATV Permit. Plaintiff rode his ATV past a gravel pile, which was "coned off," and up a second gravel pile, which was not. He was unable to stop at its crest, fell 15 to 20 feet, and seriously injured his shoulder. Plaintiff filed this action alleging the state's negligence in failing to warn, "cone off," or close the area.
After a hearing on the state's motion for summary judgment, the trial court considered the nature of the charge for an ATV operating permit and plaintiff's argument that it was a "charge" within the meaning of the exception to the statute's provision for recreational immunity. The court determined "that Plaintiff's ATV operator's [sic ] permit was not a ‘charge’ to use the land for recreational purposes, but simply a permit to operate his ATV." The court concluded that recreational immunity applied and dismissed plaintiff's claim.
To allude to the statutes to be reviewed, we describe the question presented as whether a fee for a permit that allows the use of an ATV on lands open to ATVs can be characterized as a "charge" paid "in return for granting permission" to go upon "the land" where plaintiff was injured. In effect, we must determine whether an ATV operating permit is a fee paid for permission to use "the owner's land" or, instead, the permit is a form of registration of off-road vehicles for use on lands open to their use. The difference determines the viability of the state's defense of recreational immunity under ORS 105.682.
Our starting point is the legislature's policy to provide immunity to owners who allow recreational use of their land. In relevant part, ORS 105.682(1) provides:
"[A]n owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products."
The exception, on which plaintiff relies, appears in ORS 105.688(3), which provides, in relevant part:
"[T]he immunities provided by ORS 105.682 do not apply if the owner makes any charge for permission to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products."
(Emphases added.) The term "charge" is defined by ORS 105.672, which provides:
(Emphases added.) The emphasized language makes express that a "charge" is a part of a quid pro quo arrangement. It is payment of an "admission price or fee" for "permission" to go on "the owner's land." Those terms in the immunity statutes set the standard by which we determine whether an ATV operating permit is a "charge" for permission to use "the land" where plaintiff was injured.
To make that determination, we consider the statute that requires an ATV operating permit. In relevant part, ORS 390.580 provides:
(Emphases added.) As quoted, the emphasized language does not describe the particular lands where the permits apply, either by location or by the public or private nature of ownership. Nonetheless, the language is plain enough to determine that the statute does not make ATV permits applicable to state lands only, let alone to just the Tillamook State Forest or to only the Beaver Dam Stockpile area where plaintiff was injured. Rather, an ATV permit "authorizes use" of the ATV wherever an "appropriate authority" opens its land for ATV access. Although the statute does not go on to define or to limit the "appropriate authority" who may grant ATV access to a user, that term potentially encompasses any landowner.1
From the facts of this case, we know that the Oregon Department of Forestry (ODF) is among the Oregon landowners who have opened lands to ATV use. By administrative rule, ODF has provided that a person may not operate a vehicle off-road "[e]xcept on a trail designated for that purpose" and not "[w]ithout a valid ATV registration ." OAR 629-025-0070(1) (emphasis added). "Registration" is ODF's choice of words.
We recognize that the federal government is among Oregon landowners who have opened lands to ATV use. Under 36 CFR section 212.51, the "National Forest System" provides for motor vehicle use by vehicle class, and, under 36 CFR section 212.56, identifies vehicle use by maps to be available by websites.2 Federal regulation dovetails with state law on off-road vehicles. In relevant part, 36 CFR section 261.15 provides:
Accordingly, the United States Forest Service (USFS) declares that "State laws regarding motor vehicle use such as age, safety equipment, and licensing requirements, apply on National Forest System roads." USFS, OHV Use on National Forests in Washington and Oregon , available at https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprd3799973.pdf [https://perma.cc/86C9-N5CH] (accessed August 27, 2021). The USFS advises, "All-Terrain Vehicle (ATV) Oregon law considers all vehicles intended for off-highway use to be all-terrain vehicles (ATVs)." Id. The USFS states that a "Class I ATV Sticker (Operating Permit) [is] required for all ATVs riding off-road on public land ." Id . (emphasis added).
The OPRD, which issues ATV permits, tells the public that same thing about Oregon's ATV permits. OPRD advises, "The ATV Operating Permit, also known [as] ATV Sticker or Decal, is required when operating a Class I, II, III or IV ATV on lands open to the public for ATV use ." OPRD, All-Terrain Vehicles in Oregon, ATV Permits-Rules , available at https://www.oregon.gov/oprd/ATV/Pages/ATV-permits.aspx [...
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White v. United States
...of the Oregon statute. It is a fee for the use of an ATV vehicle, not for use of the land. Stedman v. State ex rel. Dep't of Forestry, 502 P.3d 234, 241 (Or. Ct. App. 2021). In addition, the immunity exception only applies when the landowner is the entity charging the fee, Or. Rev. Stat. § ......