Stedman v. Dept. of Forestry ( 2021 )

203
Argued and submitted February 23, affirmed December 8, 2021
Clifford STEDMAN,
Plaintiff-Appellant,
v.
STATE OF OREGON,
acting by and through
Department of Forestry, a state agency,
Defendant-Respondent.
Tillamook County Circuit Court
19CV21735; A173889
502 P3d 234
Plaintiff appeals from a judgment dismissing his negligence claim for
personal injuries on state land, which he sustained in an accident on his all-
terrain vehicle (ATV). 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 an exception to
the recreational immunity doctrine applies because his purchase of an ATV oper-
ating permit was a charge, as defined in ORS 105.672(1), for permission to use the
land for recreational purposes under ORS 105.688(3). Held: The fee for an ATV
operating permit is not a charge for use of the land where plaintiff was injured
but is instead in the nature of a vehicle registration fee. The trial court did not err
in concluding that the state was entitled to recreational immunity or by granting
summary judgment on that basis.
Affirmed.
Mari Garric Trevino, Judge.
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.
DeVORE, P. J.
Affirmed.
204 Stedman v. Dept. of Forestry
DeVORE, P. J.
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 judg-
ment based on the state’s claim of recreational immunity
under ORS 105.682(1). Plaintiff assigns error to that rul-
ing, arguing that immunity does not apply because plain-
tiff 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 non-
moving party, and we review a decision allowing summary
judgment for legal error. Towe v. Sacagawea, Inc., 357 Or 74,
95-96, 347 P3d 766 (2015). We state the facts in light of that
standard. Our task here is a matter of statutory construc-
tion, which we review for errors of law. State v. Hunt, 270 Or
App 206, 210, 346 P3d 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
Cite as 316 Or App 203 (2021) 205
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 seri-
ously 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 plain-
tiff’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 char-
acterized as a “charge” paid “in return for granting permis-
sion” to go upon “the land” where plaintiff was injured. In
effect, we must determine whether an ATV operating per-
mit 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 pro-
vide 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, garden-
ing, 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:
206 Stedman v. Dept. of Forestry
“[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:
“As used in ORS 105.672 to 105.696:
“(1) ‘Charge’:
“(a) Means the admission price or fee requested or
expected by an owner in return for granting permission for
a person to enter or go upon the owner’s land.”
(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 stat-
ute that requires an ATV operating permit. In relevant part,
ORS 390.580 provides:
“(1)(a) An all-terrain vehicle off-road operating permit
issued under this section is a decal that authorizes use of
the all-terrain vehicle for which it is issued on trails and in
areas designated for such use by the appropriate authority.
“(b) An all-terrain vehicle decal issued under this sec-
tion must be permanently affixed to the vehicle and dis-
played in a clearly visible manner. The State Parks and
Recreation Department shall prescribe by rule the manner
in which the decal shall be displayed.
“* * * * *
“(4) Application for an all-terrain vehicle off-road
operating permit for a Class I, Class II, Class III or Class
IV all-terrain vehicle shall be in a form furnished by the
department. The application shall include:
“(a) The name and address of the owner of the all-ter-
rain vehicle; and
“(b) The make and body style of the all-terrain vehicle
for which application is made.
Cite as 316 Or App 203 (2021) 207
“(5) The department shall establish by rule a fee for a
permit issued or renewed under this section. The fee shall
be designed to cover the costs to the department for issuing
or renewing permits under this section but shall not exceed
$10.
“(6) Permits issued under this section are valid for two
years.”
(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 encom-
passes 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 adminis-
trative rule, ODF has provided that a person may not oper-
ate 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
1
An ATV operating permit (a vehicle sticker) is to be distinguished from an
ATV operator permit (a person’s card). Akin to a motor-vehicle driver license,
ORS 390.570(1) provides that OPRD shall issue an ATV operator permit to per-
sons who take an ATV safety education course or who are at least age 16 with five
years’ experience who pass an equivalency test. The operator permit is known
as an ATV Safety Education Card and is required for ATV use “on public lands.”
OAR 736-004-0085(1).
208 Stedman v. Dept. of Forestry
available by websites.2 Federal regulation dovetails with
state law on off-road vehicles. In relevant part, 36 CFR sec-
tion 261.15 provides:
“It is prohibited to operate any vehicle off National
Forest System, State or County roads:
“(a) [w]ithout a valid license as required by State law
[or]
“* * * * *
“(i) [i]n violation of State law established for vehicles
used off roads.”
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,
2
In relevant part, 36 CFR section 212.51(a) provides:
“Motor vehicle use on National Forest System roads, on National Forest
System trails, and in areas on National Forest System lands shall be desig-
nated by vehicle class and, if appropriate, by time of year by the responsible
official on administrative units or Ranger Districts of the National Forest
System * * *.”
And, in relevant part, 36 CFR section 212.56, provides:
“Designated roads, trails, and areas shall be identified on a motor vehicle
use map. Motor vehicle use maps shall be made available to the public at the
headquarters of corresponding administrative units and Ranger Districts
of the National Forest System and, as soon as practicable, on the website of
corresponding administrative units and Ranger Districts. The motor vehicle
use maps shall specify the classes of vehicles and, if appropriate, the times of
year for which use is designated.”
Cite as 316 Or App 203 (2021) 209
All-Terrain Vehicles in Oregon, ATV Permits-Rules, avail-
able at https://www.oregon.gov/oprd/ATV/Pages/ATV-permits.
aspx [https://perma.cc/GF4B-VZRP] (accessed August 27,
2021) (emphasis added). OPRD adds that “[t]he U.S.
Forest Service is currently designating trails, roads, and
open areas for ATV riding.” OPRD, Where to Ride, Know
Before You Go, available at http://www.rideatvoregon.org/
wheretoride/view/dsp_wtr.cfm [https://perma.cc/U752-H5NJ]
(accessed August 27, 2021).
Similar to the Oregon Driver Manual,3 the OPRD
publishes and posts a “2020 Oregon OHV Guide” that is
offered as a “handbook” with an “explanation of laws and
rules” along with a list of designated ATV sites provided by
various landowners around the state. OPRD, 2020 Oregon
OHV Guide, 4 (2020), available at https://www.oregon.gov/
oprd/ATV/Documents/ATV-2020-Oregon-OHV-Guide-web.
pdf [https://perma.cc/JBP7-D82Y] (accessed August 27,
2021); see also Towe, 357 Or at 91 n 6 (taking judicial notice
of the Oregon Driver Manual). The Oregon OHV Guide
boasts,
“Oregon OHV opportunities are diverse. The state has over
54 designated trails systems and thousands of miles of dis-
persed trails and natural surface roads. You can ride sand
dunes, open desert and wooded mountain trails. More than
60% of Oregon is public lands, meaning most designated
riding areas are on public property.”
2020 Oregon OHV Guide at 4. The guide describes the 54
designated ATV areas, listing one state park, three ODF
areas, 10 county areas, two areas provided by private orga-
nizations, 10 areas provided by the U.S. Bureau of Land
Management, and 28 areas provided by the USFS. Id. at
21-52. The listed 38 federal ATV areas greatly outnumber
the four state ATV areas. See id.
It is no wonder that the number of federal ATV
areas dwarf the number of state ATV areas. Taking judi-
cial notice of almanac-type facts, we recognize that federal
agencies own over 32 million acres of Oregon’s 61.5 million
3
Driver and Motor Vehicle Services, Oregon Department of Transportation,
2020-21 Oregon Driver Manual, available at https://www.oregon.gov/odot/forms/
dmv/37.pdf [https://perma.cc/3XQZ-8WRW] (accessed August 28, 2021).
210 Stedman v. Dept. of Forestry
acres. That is nearly 53 percent of all Oregon lands.4 In
contrast, the State of Oregon—principally, its ODF, OPRD,
Department of Fish and Wildlife, and Department of State
Lands—own almost 1.8 million acres. That is 2.8 percent
of all Oregon lands.5 To take judicial notice of those facts
is a sensible reality-check when we ponder the meaning of
an ATV permit “issued on trails and in areas designated
for such use by the appropriate authority.” ORS 390.580(1)(a)
(emphasis added).6
Plaintiff argues that the fee for an ATV operat-
ing permit was a charge for permission to use the land,
because ODF received grant funds from an OPRD ATV
account. We know from ORS 390.580(5) that the $10 permit
fee is designed to cover the costs to OPRD for issuing and
renewing permits. We recognize that ORS 390.555 estab-
lishes an All-Terrain Vehicle Account as a separate account
with OPRD, and there is an ATV Grant Subcommittee,
created under ORS 390.565(5). ATV monies are granted
to publicly and privately owned land managers and ATV
clubs and organizations, support administration of the
ATV operating permit, and implement safety and educa-
tion requirements for ATV operation. See OAR 736-004-
0005 (policy). In allocation of those moneys, the term “public
lands” is defined by rule to include “publicly and privately-
owned land that is open to the general public for the use
of all-terrain vehicles.” OAR 736-004-0015(42) (emphasis
added).
4
Congressional Research Services, Federal Land Ownership: Overview and
Data, Updated February 21, 2020, 8, available at https://sgp.fas.org.crs.misc/
R42347.pdf [https://perma.cc/ZQ9K-SC4L] (accessed August 25, 2021).
5
Oregon Department of State Lands, State of Oregon State Land Inven-
tory System Report, available at https://www.oregon.gov/dsl/Land/Documents/
1SLIOwnership‌Statewide.pdf [https://perma.cc/C44F-FJKG] (accessed August 25,
2021).
6
Judicial notice is permissible with regard to facts not reasonably in dis-
pute that are either generally known within the territorial jurisdiction of the
court or capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. OEC 201(b); see Bowden v. Davis
et al, 205 Or 421, 430-31, 289 P2d 1100 (1955) (taking judicial notice of the
physical and geographic arid conditions in southeast Oregon); Volny v. City of
Bend, 168 Or App 516, 519 n 2, 4 P3d 768 (2000) (taking judicial notice of the
population of Bend); Utterback v. Dept. of Rev., 17 OTR 276, 280 (2003) (taking
judicial notice that most people who live in Oregon live on land once in federal
ownership).
Cite as 316 Or App 203 (2021) 211
The monies are not restricted so as to return ATV
permit fees only to the state agencies that grant ATV
access. Instead, federal agencies, tribal governments, pri-
vate landowners, and nonprofit clubs may be recipients
too. OAR 736-004-0025(1). In short, the ATV fee serves a
set of statewide purposes that is demonstrably larger than
an “admission price or fee” paid “in return” for a particular
landowner’s “permission” to “go upon the owner’s land.” See
ORS 105.672(1) (defining “charge”).
Comparison is a useful exercise. The fees from ATV
permits resemble the various fees paid for ordinary motor-
vehicle registration, which are required to be dedicated to
the State Highway Fund. See Or Const, Art IX, § 3a (requir-
ing, among others, fees generated from “the ownership,
operation or use of motor vehicles” to “be used exclusively
for the construction, reconstruction, improvement, repair,
maintenance, operation and use of public highways, roads,
streets and roadside rest areas” within the state); see Oregon
Trucking Assns. v. Dept. of Transportation, 288 Or App 822,
825, 407 P3d 849 (2017), aff’d, 364 Or 210, 432 P3d 1080
(2019) (reciting trust fund purpose). Those registration fees
are required to be paid for vehicles operated on the high-
ways of this state. See ORS 803.300 (offense of failure to
register vehicle); ORS 803.315 (failure to pay appropriate
registration fee); ORS 803.305(4) (exemption, among others,
for a vehicle that “is not operated on the highways of this
state”).
Although payment of money is involved, we would
not characterize a motor-vehicle registration fee as an
“admission price or fee” paid “in return for the permission” of
the highways’ owners to go upon “the owner’s land.” See ORS
105.672(1) (defining “charge” for purpose of the exception to
recreational immunity); see also ORS 801.050 (“Subject to
compliance with the motor vehicle law of this state, owners
and operators of motor vehicles are granted the privilege of
using the highways of this state.”). That is because motor
vehicle registration does not involve “permission” in the
ordinary sense with regard to particular lands by a particu-
lar landowner and because public highways are owned by or
subject to various federal, state, and county authorities. See,
e.g., 23 USC § 103 (interstate highway system); ORS 366.220
212 Stedman v. Dept. of Forestry
(state highway system); ORS 368.016 (county authority over
roads).
The same registration scheme exists for small boats
that are noncommercial watercraft and are required to be
registered for use “on the waters of this state.” See ORS
830.770 (required certificate of number); ORS 830.775 (small
watercraft registration). Fees are charged. See ORS 830.790
(biennial fees for registration and certification). The Oregon
State Marine Board (Marine Board) oversees and distributes
the Boating Safety, Law Enforcement, and Facility Account.
See ORS 830.140 (describing the account and the board’s
authority). As with ATV fees, boating registration fees are
distributed to entities in addition to the state agency over-
seeing state waters. ORS 830.150.7 Here, again, we would
not ordinarily consider such fees generated for registration
of boats as an “admission price or fee” paid to the Board “in
return for the permission” to use the waters subject to the
control of various local, state, or federal authorities.
Those parallel statutes—governing boat and motor-
vehicle registration—provide a statutory context for the
question whether an ATV operating permit is a user fee or
merely is another kind of registration fee. Those statutes
are context because they are statutes in pari materia—
statutes that demonstrate how ordinary registration works.
See generally State v. Klein, 352 Or 302, 309, 283 P3d 350
(2012) (a statute’s context includes “related statutes”);
Weems/Roberts v. Board of Parole, 347 Or 586, 595, 227 P3d
671 (2010) (reliance on other, related statutes). Those par-
allel statutes intimate that the ATV operating permit is a
kind of registration for off-road vehicles.
With that perspective, we return to our start-
ing point to determine whether an ATV permit is a user
fee paid in exchange for permission to use the property on
which plaintiff was injured or is instead a form of vehicle
7
Like ATV permit fees, ORS 830.150(1) instructs the Marine Board that:
“Amounts remaining in the Boating Safety, Law Enforcement and Facility
Account in excess of funds obligated under ORS 830.140 (2) shall be distrib-
uted, upon application, to a federal agency, the state, a city, county, water
improvement district, park and recreation district or a port. Distribution
shall be made on the basis of need for a facility as that need appears to the
State Marine Board.”
Cite as 316 Or App 203 (2021) 213
registration authorizing use of an ATV wherever ATV use
is permitted on public properties or other permissive prop-
erties. The answer follows from construing these terms:
Recreational immunity does not apply “if the owner makes
any charge for permission to use the land.” ORS 105.688(3)
(emphasis added). And, a charge “means the admission price
or fee requested or expected by an owner in return for grant-
ing permission for a person to enter or go upon the owner’s
land.” ORS 105.672(1)(a) (emphases added).
Given those terms, we conclude that the exception
to recreational immunity does not apply to the fee for an
ATV permit. That is because, with an ATV permit, there is
no quid pro quo, and there is no particular land involved.
The state, or its ODF, does not “request or expect” from “a
person” an “admission price or fee,” which is “in return” for
“permission” to use “the land.” See ORS 105.682(1) (“per-
son”); ORS 105.688(3) (other terms); ORS 105.672(1) (other
terms) (emphases added). Plaintiff was not charged a user
fee specific to the Tillamook State Forest or its Beaver Dam
Stockpile area. Even if all state lands were seen as one
parcel, plaintiff was not charged a user fee for the use of
state lands. The permit involves more than just state lands.
Plaintiff was charged a fee for an ATV permit as an ATV
owner for the potential that whoever operates it may use it
anywhere where that ATV is permitted to be used by any
“appropriate authority.” See ORS 390.580(1)(a) (requiring
ATV operating permit for use “in areas designated for such
use by the appropriate authority”). An ATV operating permit
is a form of a “registration” for an ATV—the term that ODF
uses in its own rule. See OAR 629-025-0070(1)(d) (referring
to ATV “registration”). Consequently, the exception to recre-
ational immunity in ORS 105.688(3) does not apply here.
That conclusion is not precluded by the decision of
the Oregon Supreme Court in Coleman v. Oregon Parks and
Recreation Dept., 347 Or 94, 217 P3d 651 (2009), the decision
on which plaintiff relies. That case involved a charge paid in
exchange for permission for a particular recreational use at
a specific property. The plaintiff had paid a camping fee for
a part of Tugman State Park and was injured while riding
a bicycle on a park trail. Id. at 99-100. The court concluded
that immunity did not apply because the plaintiff had paid a
214 Stedman v. Dept. of Forestry
charge for a recreational use at the park where the plaintiff
was injured. Id. at 103-04. That said, nothing in Coleman
suggests that the exception to recreational immunity con-
cerns a fee that is not tied to particular state lands or,
indeed, that is not tied to state lands at all. See id. (concern-
ing the term “the land” in ORS 105.688(2)(a)). Coleman is
inapt.
The difficulty with plaintiff’s view is it dispenses
with the quid pro quo character of an exchange for per-
mission to use the particular land on which plaintiff was
injured. As the state argues, plaintiff’s theory would make
a fishing license seem to be a “charge” eliminating recre-
ational immunity on state lands and waters. Candidly,
plaintiff agrees. To suggest that plaintiff’s view may be
broad is not to criticize plaintiff who would prefer that his
case be decided by a jury who can assess comparative fault
according to the facts of the case. Here, however, the legisla-
ture set public policy when it created recreational immunity
for the purpose of encouraging wider use of lands for recre-
ational purposes. The legislature’s preference controls.
Having created recreational immunity, the legis-
lature made an exception for the situation in which a per-
son pays a charge in return for permission to use the land
at issue. See ORS 105.688(3) (exception); ORS 105.672(1)
(charge). But that exception does not apply here. The fee
for ATV registration is not a “charge” paid “in return” for
use of “the land” where this plaintiff was injured. See ORS
105.688(3) (exception); ORS 105.672(1) (charge defined). The
trial court did not err in reaching that conclusion and grant-
ing summary judgment.
Affirmed.