Ludwig v. United States

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DANA LUDWIG, as Independent Administrator of the )

Estate of Brent Ludwig, deceased, )

) 17 C 2943

Plaintiff, )

) Judge Gary Feinerman

vs. )

)

UNITED STATES, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Dana Ludwig brings suit for negligence and wrongful death under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., on behalf of the estate of her deceased husband,

Brent Ludwig, who died in a tragic hiking accident in the Mount Hood Wilderness. Doc. 1. The

United States moves for summary judgment, Doc. 72, and Dana moves to strike two declarations

submitted by the United States to support its summary judgment motion, Docs. 87-88. Dana’s

motions to strike are denied in part and denied as moot in part, and the United States’ summary

judgment motion is granted.

Background

The court recites the facts as favorably to Dana as the record and Local Rule 56.1 permit.

See Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). At this

juncture, the court must assume the truth of those facts, but does not vouch for them. See Gates

v. Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).

Brent died in a hiking accident in the Mount Hood Wilderness in Oregon on August 12,

2014. Doc. 86 at ¶¶ 1, 3. The Wilderness covers nearly 65,000 acres of land designated under

the Wilderness Act of 1964. Id. at ¶¶ 6, 31. Motor vehicles are not allowed within the

Wilderness. Id. at ¶ 34. The Wilderness lies within the larger Mount Hood National Forest. Id.

at ¶ 31. Both are administered by the United States Forest Service. Id. at ¶ 8.

In August 2014, Dana, Brent, his brother James Ludwig, and James’s wife Ellen Ludwig

traveled to Oregon from their homes in Illinois for a vacation. Doc. 86 at ¶ 3; Doc. 75-14 at

38:9-39:18. They rented a house near Mount Hood. Doc. 75-14 at 38:15-18. On the morning of

August 12, Nathan Johnson, a childhood friend of Brent and James, came to meet the Ludwigs

from his home nearby. Doc. 75-15 at 5:16-17, 6:24-25, 17:1-12. Johnson planned to take the

group on a hike to Ramona Falls, a waterfall on the Sandy River in the Mount Hood Wilderness.

Id. at 16:5-7; Doc. 86-25 at 1.

There is a maintained hiking trail to Ramona Falls that starts at the Ramona Falls

Trailhead, which is within the Mount Hood National Forest a quarter mile outside the boundary

of the Wilderness. Doc. 86 at ¶¶ 39-40. About one mile into the hike, within the Wilderness, the

trail crosses the Sandy River downstream from the falls. Id. at ¶ 3; Doc. 86-25 at 1. On August

12, 2014, a “seasonal bridge” was in place at the crossing. Doc. 86 at ¶ 11. From 1995 to 2014,

a Forest Service employee placed the bridge at the crossing every Spring and then removed it

every Fall. Id. at ¶¶ 9, 11; Doc. 94 at ¶ 57. The bridge was not affixed to the streambed in any

way. Doc. 94 at ¶ 57. Photographs of the bridge show that it was a rudimentary 20-foot-long

wooden plank with no handrails. Doc. 86 at ¶¶ 11, 13; Docs. 75-8, 75-9.

Johnson knew that to drive to the Ramona Falls Trailhead, the hiking party needed to

purchase “day-use” passes for both their vehicles, Johnson’s car and the Ludwigs’ rental car.

Doc. 75-15 at 18:4-19:6; Doc. 75-16 at 23:13-24:25. Johnson drove alone to a ranger station and

purchased two $5 daily passes, one for each vehicle. Doc. 86 at ¶¶ 43, 48, 50-51. The pass is

designed to hang from a car’s rearview mirror. Doc. 75-7. Both sides of the pass state,

“National Forest Recreation Pass” and “DISPLAY IN VEHICLE.” Id. at 1-2. The date

“8/12/14” is handwritten in marker on the front side of the pass. Id. at 1. On the back side, the

pass states: “The Recreation Day Pass is a vehicle pass honored at day-use sites in Oregon and

Washington where ‘Recreation Pass Required’ signs are posted.” Id. at 2.

After Johnson bought the passes, he and the four Ludwigs made the 15-minute drive from

their rental house to the Ramona Falls Trailhead. Doc. 75-14 at 45:8-14; Doc. 75-15 at 20:25-

21:6; Doc. 75-16 at 24:13-25:10. The weather was sunny and warm on the hike to Ramona

Falls. Doc. 75-14 at 58:12-14; Doc. 75-15 at 40:3-5; Doc. 75-16 at 31:2-12. The hiking party

crossed the Sandy River seasonal bridge without incident and arrived at the falls. Doc. 75-14 at

59:17-60:7. It began to rain as they ate lunch, and the rain continued as they hiked back toward

the trailhead. Id. at 60:8-23; Doc. 75-15 at 40:6-16; Doc. 75-16 at 34:15-35:2. By the time they

again reached the bridge, it had stopped raining or was barely drizzling. Doc. 94 at ¶ 63.

Brent was the last of the hiking party to start across the bridge. Doc. 86 at ¶ 5. As he

was walking across, a log jam 100 feet upstream burst and sent a wave of water and debris 5 to 8

feet high rushing toward the bridge. Ibid.; Doc. 94 at ¶ 64. Johnson, who was almost across the

bridge, saw “a wave of water and larger debris” and “felt the bridge lift and turn.” Doc. 75-15 at

42:25-43:2. Johnson and Brent were thrown into the water. Id. at 43:4-12; Doc. 75-14 at

103:14-20. Brent drowned as he was swept downstream. Doc. 86 at ¶ 5. The Forest Service has

not replaced the bridge since its destruction that day. Doc. 94 at ¶ 91.

In 2016, Dana presented a negligence and wrongful death claim to the Forest Service.

Doc. 12 at ¶ 2. Six months passed without final disposition of her claim, and Dana deemed that

delay a denial pursuant to 28 U.S.C. § 2675(a). Id. at ¶ 4. She then filed this suit, bringing the

same claim. Doc. 1 at ¶¶ 24-26, 29.

Discussion

The United States moves for summary judgment based on two affirmative defenses.

Docs. 72, 81. First, the United States argues that the suit is barred by the FTCA’s discretionary

function exception. Doc. 81 at 17-24; see 28 U.S.C. § 2680(a) (barring “[a]ny claim … based

upon the exercise or performance or the failure to exercise or perform a discretionary function or

duty … whether or not the discretion involved be abused”). Second, the United States argues

that it has immunity under the Oregon recreational use statute. Doc. 81 at 24-28; see Or. Rev.

Stat. §§ 105.672-.696. Because summary judgment is warranted based on the Oregon statute,

there is no need to address the discretionary function exception.

I. Dana’s Motions to Strike

Before addressing the Oregon recreational use statute, the court considers Dana’s motions

to strike two declarations that the United States submits to support its summary judgment

motion. Docs. 87, 88. The first declaration is from John Kattell, the national bridge engineer for

the Forest Service. Doc. 75-4 at ¶ 1. Kattell’s declaration describes the Forest Service’s bridge

construction policies, a topic relevant only to the United States’ discretionary function exception

defense. Because the court’s summary judgment ruling does not rely on that exception, Dana’s

motion to strike Katrell’s declaration is denied as moot.

The second declaration is from Jennifer Watts, the Business Public Services Staff Officer

for the Mount Hood National Forest. Doc. 75-5 at ¶ 1. Dana argues that Watts’s declaration

should be stricken as a “sham affidavit” because its averments are “inconsistent with [her]

deposition testimony and the documentation provided by the Forest Service.” Doc. 88 at 2.

In certain circumstances, a district court may refuse to consider a “sham affidavit”

submitted at summary judgment. Specifically, “[a] ‘sham affidavit’ is an affidavit that is

inadmissible because it contradicts the affiant’s previous testimony … unless the earlier

testimony was ambiguous, confusing, or the result of a memory lapse.” Cook v. O’Neill, 803

F.3d 296, 298 (7th Cir. 2015). It is unlikely that the sham affidavit rule can be invoked against

the moving party. As the Seventh Circuit recently explained, Civil Rule 56 “requires a judge to

scrutinize the substance of an affidavit offered in response to a summary-judgment motion to

determine whether a reasonable jury could rely on the factual statements it contains.” James v.

Hale, 959 F.3d 307, 315 (7th Cir. 2020) (emphasis added). The sham affidavit rule ensures that

“a genuine issue of material fact cannot be conjured [by the non-movant] out of nothing.” Id. at

316. But when a movant submits contradictory evidence, summary judgment is denied in the

ordinary course based on the fact dispute inherent in that evidence, without resort to the sham

affidavit rule. See Allen v. Chi. Transit Auth., 317 F.3d 696, 699-700 (7th Cir. 2003) (“When a

witness repeatedly contradicts himself under oath on material matters … the witness’s credibility

becomes an issue for the jury; it cannot be resolved in a summary judgment proceeding.”).

Although the Seventh Circuit has not squarely addressed the question, the Sixth Circuit has held

that “the logic and purpose of the [sham affidavit] doctrine do not apply when a party moving for

summary judgment submits an allegedly contradictory affidavit with its summary judgment

motion.” Reed v. City of Memphis, 735 F. App’x 192, 198 (6th Cir. 2018).

Assuming for the sake of argument that the sham affidavit rule can apply against a

moving party, Watts’s declaration is not a sham affidavit. The pertinent question under the rule

is whether Watts’s declaration contradicts her own prior deposition testimony. See Cook, 803

F.3d at 298. Much of Dana’s argument, however, charges that Watts’s declaration is factually

inconsistent with other parts of the record. Doc. 88 at 5-6, 8-14. Such an argument does not fall

within the writ of the sham affidavit rule. If an averment in a summary judgment movant’s

declaration is contradicted by parts of the record other than the witness’s deposition testimony,

then there is a factual dispute, period, with no need to invoke the rule.

Dana’s motion to strike does briefly maintain that there are inconsistencies between

Watts’s declaration and three passages from her deposition testimony. In the first, Watts testified

that a “valid recreation pass” is required for the Ramona Falls Trailhead. Doc. 88 at 4. In the

second, Watts testified that the fee charged for the recreation pass is an authorized “standard

amenity recreation fee” under the Federal Lands Recreation Enhancement Act (“FLREA”). Id.

at 6; see 16 U.S.C. § 6802(f). In the third, Watts explained that, under the FLREA, the Forest

Service can charge such a fee only if it provides certain amenities in addition to parking, such as

picnic tables and a permanent toilet. Doc. 88 at 7-8. The court will address in detail the

substance of these matters in the Discussion section below. For now, it suffices to say that Watts

attests to the same facts in her declaration. Doc. 75-5 at ¶¶ 26-27 (explaining the recreation pass

requirement); id. at ¶ 29 (noting that the charge for the pass is called a “recreation fee”); id. at

¶ 31 (referring to “amenities at the trailhead other than the parking lot”). Because there are no

inconsistencies in these respects between Watts’s deposition testimony and her declaration,

Dana’s motion to strike the declaration’s averments regarding the recreation pass and associated

fee is denied.

Dana also argues that Watts’s declaration makes statements regarding the Sandy River

seasonal bridge that either are inconsistent with her deposition testimony or comprise

inadmissible expert testimony. Doc. 88 at 10-15. Like Kattell’s declaration, those parts of

Watts’s declaration are not relevant to the United States’ defense under the Oregon recreational

use statute, so that portion of Dana’s motion is denied as moot.

II. The United States’ Summary Judgment Motion

The FTCA “waives the federal government’s sovereign immunity only insofar as the

defendant, were it not the government, would be liable to the plaintiff under the law of the state

in which the conduct that is alleged to be tortious occurred.” Matheny v. United States, 469 F.3d

1093, 1094 (7th Cir. 2006) (citing 28 U.S.C. §§ 1346(b)(1), 2674); see 28 U.S.C. § 1346(b)(1)

(waiving sovereign immunity and conferring jurisdiction on the federal courts in “circumstances

where the United States, if a private person, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred”); id. § 2674 (“The United States shall be

liable … in the same manner and to the same extent as a private individual under like

circumstances … .”). The United States may assert any “substantive limitation” on liability

under state law that a private person could assert in like circumstances. Augutis v. United States,

732 F.3d 749, 754 (7th Cir. 2013).

As noted, the United States argues that Dana’s claims are barred by the Oregon

recreational use statute, Or. Rev. Stat. §§ 105.672-.696. Doc. 81 at 24-28. Under that statute,

“[a] landowner is immune from suit for injuries that arise out of the recreational use of its land

when the owner ‘permits any person to use the land for recreational purposes[.]’” Coleman v.

Or. Parks & Recreation Dep’t ex rel. State, 217 P.3d 651, 652 (Or. 2009) (quoting Or. Rev. Stat.

§ 105.682(1)). The statute defines “land” as “all real property, whether publicly or privately

owned,” Or. Rev. Stat. § 105.672(3), and thus applies to federal land like the Mount Hood

Wilderness. See Kelly v. Hochberg, 243 P.3d 62, 67 (Or. 2010) (holding that the Bureau of Land

Management could assert immunity under the statute); O’Neal v. United States, 814 F.2d 1285,

1287 (9th Cir. 1987) (same); see also Matheny, 469 F.3d at 1096 (holding that an analogous

Indiana statute applied to an FTCA suit brought against the United States based on an occurrence

at the Indiana Dunes National Lakeshore, reasoning that the FTCA “requires that the federal

government be treated no worse in a tort suit than if it were a private entity”). And there is no

dispute that Brent was using the Mount Hood Wilderness for “recreational purposes,” a term that

the statute defines to include “hiking.” Or. Rev. Stat. § 105.672(5).

In seeking to defeat the United States’ invocation of the recreational use statute, Dana

relies on an exemption in the statute that lifts immunity “if the owner makes any charge for

permission to use the land for recreational purposes.” Id. § 105.688(3). It is undisputed that

Johnson purchased two $5 passes on the morning in question. Doc. 86 at ¶¶ 45, 50. To support

her argument that the statutory exemption applies, Dana points to Coleman, where the Oregon

Supreme Court held in a suit involving an accident at a state park that the exemption stripped the

State of immunity because it charged camping fees at the park. 217 P.3d at 655. After the

Coleman decision, however, the Oregon legislature amended the recreational use statute to allow

landowners to assess certain charges without forfeiting their immunity. See 2010 Or. Laws Sp.

Sess. Ch. 52, §§ 1-2. Pertinent here, the amendment revised the definition of the term “charge”

to exclude any “parking fee of $15 or less per day.” Or. Rev. Stat. § 105.672(1)(c).

Accordingly, the United States remains immune under the recreational use statute if the

$5 fee that Johnson paid for each pass qualifies as a “parking fee” under Or. Rev. Stat.

§ 105.672(1)(c). The statute does not define the term “parking fee.” In arguing that the fee

Johnson paid was not a “parking fee,” Dana relies primarily on the fee’s name, noting that the

FLREA calls it a “standard amenity recreation fee,” 16 U.S.C. § 6802(f)—not a parking fee—as

does the Forest Service manual, Doc. 86-27 at 12. Doc. 85 at 30-31. In arguing that the fee

Johnson paid was a “parking fee,” the United States presses a more functional definition, arguing

that only visitors who parked had to pay the fee and that the fee was assessed per vehicle, not per

person. Doc. 81 at 26-27.

Resolution of the parties’ debate turns on whether form or substance controls

interpretation of the term “parking fee” under Oregon law. Although the Oregon Supreme Court

has not interpreted that precise term, it has had occasion to categorize various government levies

as either a “tax,” an “assessment,” or an “excise,” and its interpretive methodology is instructive

here. In determining whether one Oregon levy was an unlawful “tax” or, rather, a lawful

“assessment,” the Court explained that “[t]he distinction … is one of function, not

nomenclature.” Dennehy v. Dep’t of Revenue, 756 P.2d 13, 17 (Or. 1988). Likewise, in

Automobile Club of Oregon v. State, 840 P.2d 674 (Or. 1992), the Court held that “the character

of a levy is determined by its function, not by the label the legislature attaches to it.” Id. at 682.

And in Keller v. Department of Revenue, 872 P.2d 414 (Or. 1994), which asked whether a

certain Washington tax could offset Oregon income taxes, the Court held that it must “examin[e]

the substance and practical effect of that tax, not only its label under Washington law.” Id. at

415. Under the methodological approach consistently taken by the Oregon Supreme Court, then,

the label that Congress and the Forest Service gave the $5 recreation pass matters little, if at all.

Rather, it is the function the pass served that is dispositive in determining whether it qualifies as

a “parking fee” within the meaning of the recreational use statute.

Consistent with the state supreme court’s functional approach, an Oregon trial court ruled

that the question whether a levy qualifies as a “parking fee” under the recreational use statute

turns on the levy’s function, not its label. See McCormick v. State ex rel. Or. State Parks &

Recreation Dep’t, 466 P.3d 10, 13 (Or. 2020) (noting the trial court’s ruling, which was not at

issue on appeal). Like Dana here, the plaintiff in McCormick argued that a $5 fee charged at a

state park was not a “parking fee” because the park brochure called it a “day-use fee.” See

Plaintiff’s Response to Motion for Summary Judgment at 12-13, McCormick v. State, No.

14CV00131 (Or. Cir. Ct. June 9, 2015). The trial court rejected that argument, holding that the

plaintiff had not been “charged a fee to enter or use the Day Use Area,” but had only been

“charged a $5.00 parking fee.” McCormick v. State, No. 14CV00131, slip op. at 2 (Or. Cir. Ct.

June 9, 2015). Although the trial court’s decision is not controlling here, it provides further

support for the proposition that an Oregon court charged with deciding whether the $5 levy

Johnson paid for each of the two passes he purchased was a “parking fee” within the meaning of

the recreational use statute would look beyond its name and focus on its function. See Indep. Tr.

Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 936 (7th Cir. 2012) (“Where a state’s supreme

court has not yet passed on an issue, we examine decisions of the lower state courts to help

formulate an answer.”) (quotation omitted).

Given the foregoing, the court interprets the term “parking fee” in a functional manner to

mean: a fee that a recreational user must pay only if the user parks a vehicle at the recreational

site. This definition has two essential components: (1) if a user parks at the recreational site, she

must pay the fee; and (2) if a user does not park at the recreational site, she need not pay the fee.

Summary judgment for the United States is required unless a reasonable juror could find that one

of these statements is false at the Ramona Falls Trailhead as to the $5 fee that Johnson paid.

There is no debate as to the first component of the definition. Dana admits that everyone

who parks at the Ramona Falls Trailhead “must purchase and display a valid pass in their

vehicle.” Doc. 86 at ¶ 47. There are multiple ways to pay a fee, not only the $5 daily pass, but

also an annual pass—the “Northwest Forest Pass,” which is valid for national forests in Oregon

and Washington, and the “Interagency Pass,” which is valid for federal lands across the country.

Doc. 94 at ¶¶ 104-107. But it is undisputed that one of those various passes and their associated

fees is required to park at the Ramona Falls Trailhead.

The second component of the definition is more hotly contested, but in the end is subject

to no genuine dispute on the summary judgment record. Dana first makes a purely legal

argument, which proceeds as follows. Under the FLREA, the Forest Service may not charge a

visitor “[s]olely for parking … along roads or trailsides.” 16 U.S.C. § 6802(d)(1)(A). Rather,

the Forest Service “may charge a standard amenity recreation fee” at an “area” only if the area

has certain “amenities” beyond parking—a toilet, a trash can, an interpretive sign, picnic tables,

and security services, id. § 6802(f)(4)(D)—and only if the area “provides significant

opportunities for outdoor recreation,” id. § 6802(f)(4)(A). The Forest Service manual reiterates

these requirements. Doc. 86-27 at 12, § 32.2. According to Dana, these requirements

necessarily imply that “the fee at issue was not solely for parking” and hence that it cannot

qualify as a “parking fee” under Oregon law. Doc. 85 at 31, 33-34.

Dana’s argument does not persuade. True, the FLREA provides that the Forest Service

may charge a fee for parking only when it bundles parking with other amenities. But the FLREA

does not require the Forest Service to charge anyone fees, let alone direct the Forest Service to

charge pedestrians or bicyclists who use a recreation area’s amenities. See 16 U.S.C. § 6802(f)

(providing that the Forest service “may charge a standard amenity recreation fee”) (emphasis

added). That is significant because the pertinent question under the second component of the

court’s interpretation of term “parking fee” is whether the Forest Service in fact implements the

FLREA by charging people without cars who use the Ramona Falls Trailhead.

The FLREA does not speak to that question, and the record indisputably shows that the

answer is no: only those who park a vehicle must obtain the $5 pass that Johnson purchased. As

an initial matter, it is undisputed that the $5 fee is charged per vehicle, not per person. Doc. 86 at

¶ 48. The FLREA assumes that the Forest Service will charge the fee per vehicle, not per

person, as it imposes joint liability on all occupants of “a vehicle charged with a nonpayment

violation.” 16 U.S.C. § 6811(c). The actual pass that Johnson received is also tied to a vehicle.

True enough, the pass is labeled a “Recreation Pass.” Doc. 86 at ¶ 106; see Doc. 75-7 at 1. But

the pass on both its front and back sides directs the user to “DISPLAY IN VEHICLE,” Doc. 75-7

at 1-2, and states on the back side that “[t]he Recreation Day Pass is a vehicle pass honored at

day-use sites in Oregon and Washington where ‘Recreation Pass Required’ signs are posted,” id.

at 2 (emphasis added). The fact that the fee and the pass attach to a vehicle, not a person,

necessarily implies that those who arrive without a car need not pay.

Deposition testimony confirms that only visitors who park must pay the fee and obtain a

pass. Watts testified that “the pass is for parking at the trailhead,” that the pass is “tied to a

vehicle,” and that “to park at the trailhead, you must display valid recreation pass.” Doc. 86-15

at 55 (214:14, 214:16-18). Even more explicitly, Watts testified that, “if you don’t come in a

vehicle or if you’re dropped off, you can still participate in recreation on the site. But if you park

there, then you’re required to display a pass. … So it’s a vehicle pass, not a pass for individuals.”

Id. at 55 (216:7-13). And Watts unambiguously testified that the Forest Service does not “collect

fees from people that are hiking through, biking through, horseback riding through.” Id. at 55

(217:2-4). In sum, Watts concluded, “you have to park there and have a vehicle to be required to

pay a fee.” Id. at 56 (219:25-220:2).

Dana and James also understood that the passes purchased by Johnson each corresponded

to a single vehicle. Dana testified that Johnson went to a ranger station and “came back with the

paper that you had to put in your car,” Doc. 75-14 at 48:5-9, and offered her understanding that

“in order to park at the trailhead you had to have a slip of paper on your dashboard,” id. at 48:12-

13. James testified that Johnson “had gotten parking passes for both his car and our car.”

Doc. 75-16 at 23:16-17. Johnson himself was less clear on the exact purpose of the passes. He

understood that it was a “use pass for sites that require” a “day-use” pass. Doc. 75-15 at 18:23-

24. He knew that “it’s designed to hang in the car,” but did not “know what it’s for or what they

would call it.” Id. at 19:2-5.

With the foregoing evidence, the United States has shown that visitors to the Ramona

Falls Trailhead must purchase a recreation pass only if they park there. To avoid summary

judgment, Dana must adduce contrary evidence showing that the Forest Service charges non-

parkers to use the trailhead. See Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015) (“If the

moving party has properly supported [its] motion, the burden shifts to the non-moving party to

come forward with specific facts showing that there is a genuine issue for trial.”). Dana argues

that the Forest Service’s communications to the public through its website, signage at the

trailhead, and a trail description flyer comprise such contrary evidence. Doc. 85 at 31-32. The

court considers those materials in turn.

As for the Forest Service’s website, Dana observes, correctly, that the website does not

explicitly state that only those who park must pay the fee. Id. at 32; Doc. 86 at ¶¶ 104-105, 113;

Doc. 86-25. But neither does the website state, explicitly or implicitly, that non-parkers must

pay. Several pages of the website explain that “[r]ecreation passes and permits” cover the “day

use fee” for certain “recreation sites,” including the Ramona Falls Trailhead, but those pages do

not specify who must acquire such passes or permits. Doc. 86-25 at 6, 8-11. A page titled

“Ramona Falls Trailhead,” however, explicitly ties the recreation pass requirement to a vehicle,

explaining that the trailhead has a “[l]arge parking area” and that there is a fee of

“$5/vehicle/day.” Id. at 1. In sum, the website nowhere suggests that non-parkers must purchase

a recreation pass to use a trailhead amenity; if anything, it conveys the contrary.

As for the signage at the Ramona Falls Trailhead, Dana highlights a sign that announces,

“RECREATION FEE REQUIRED.” Doc. 85 at 17; Doc. 86 at ¶¶ 107, 113; see Doc. 75-12.

Again, it is immaterial under Oregon law that the fee is called a “recreation fee”—the pertinent

question, rather, is whether non-parkers must pay it. This particular sign does not speak to that

question, but a different version of the same sign makes explicit that visitors must “display [a]

valid pass when parked at this site.” Doc. 86 at ¶ 111; Doc. 86-28 at 29 (emphasis added).

Another sign at the trailhead plainly calls the recreation pass a “parking permit,” stating: “All

Trail Users must attain a Wilderness Permit. This is different than your parking permit and is

free but required for Wilderness entry.” Doc. 75-12. Like the Forest Service website, the

trailhead signage does not indicate that those arriving at the Ramona Falls Trailhead on foot or

by bicycle must pay a fee; if anything, the signage conveys that only those obtaining a “parking

permit” must pay.

The same holds for the trail description of the Ramona Falls Trail published by the Forest

Service, which is reproduced here:

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Recreation Opportunity Guide NORTHWEST te ae a's

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□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 3-0 Miles (one way) NILDERSESS ©

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 2500-3500 feet ee (oe)

SNOW Free □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ May to October More Difficutt = | 2

LADURING

Trail Highlights: This trail enters the Mount Hood Wilderness Area, part of the National

Wilderness Preservation System. Ramona Falls is a jewel drawing visitors to the area. The Sandy

River, a designated Wild and Scenic River, is a dramatic example of the forces that a glacial fed river can

bring forth to change the landscape. Physical signs of a volcanic debris flow from over 200 years ago are

evident where the trail is near the Sandy River.

Please note: Glacial river crossings on the flanks of the Mt. Hood Wilderness do not have foot bridges.

Hikers should be prepared for dangerous river conditions, Please follow the River Crossing Safety

Guidelines.

Trail Description: Most visitors access this trail from Ramona Falls Trailhead. The distance

round trip for this point 7 miles, From this trailhead, visitors take the Sandy River Trail one mile

eastward to where it crosses the Sandy River. River crossings can be very dangerous without

preparation, patience and planning. Please be sure you have chosen the safest time, safest place and

best method to cross. Hikers should be prepared to turn back or wait for a more suitable time to cross if it

appears to be too dangerous. Approximately % mile after the crossing, visitors will come to the Ramona

Falls “loop” itself, (The Pacific Crest National Scenic Trail #2000 overlaps with Ramona Falls for a

couple miles in this area.) Equestrians going to Ramona Falls will stay on the southern side of the loop

that goes along above the Sandy River. Hikers can choose which way to do the loop. It is about the

same distance either way. Overall the route is a gentle climb gaining 1000’ over the 3.5 miles to the

falls.

Regulations & Leave No Trace Information:

>» Wilderness Permits are required between May 15 and Oct 15.

® Group size is limited to 12. Stock are counted in the group size. For example, 3 people riding

their own horse plus a spare horse in the group for packing would make a group of 7.

Leave No Trace

> Stay off around the falls.

» Plan Ahead and Prepare: Prepare for extreme weather, hazards and emergencies.

> Travel and Camp on Durable Surfaces: Use established trails and campsites.

> Dispose of Waste Properly; Pack out all trash, leftover food and litter.

® Leave What You Find: Avoid introducing or transporting non-native species.

>» Minimize Campfire Impacts: Use established fire rings & keep fires small.

> Respect Wildlife: Control pets at all times.

» Be Considerate of Other Visitors: Avoid loud voices and noises.

For information on Leave No Trace, go to www LN /.org or call 1-800-332-4100

For current trail conditions and more recreation information go to:

http: /www_fs.usda.gov/mthood

Map and driving directions on next page

Mt. Hood National Forest Zigzag Ranger District

16400 Champion Way 70220 E. Highway 26

Sandy, OR 97055 Zigzag, Oregon 97049

503-668-1700 503-622-3191

The USDA is an equal opportunity provider and employer.

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Pit. 25

15

Directions to Trailhead: From Portland, follow US Highway 26 to Zigzag. Turn north on E. Lolo

Pass Road (Forest Road 18). Follow it four miles. Turn east (right) onto Forest Road 1825 and continue 0.6

miles, turn right across a bridge and then continue 1.7 miles to a road junction. Bear left at the junction onto

Forest Road 1825-100 and drive 0.3 mile. Take a left onto Forest Road 1825-024 to a large open parking lot

0.2 mile).

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Doc. 86 at ¶ 103; Doc. 86-26 at 1-2.

Dana correctly notes that, at the top of the first page, the trail description states,

“Northwest Forest Pass Required May 15-Oct 1.” Doc. 86-26 at 1. Viewed in isolation, this

might be read to obliquely suggest that everyone hiking to Ramona Falls must purchase a pass,

regardless of whether they park a vehicle. But other parts of the trail description reveal an

assumption that its readers will arrive by vehicle and park at the trailhead. The first page states

that “[m]ost visitors access this trail from Ramona Falls Trailhead” and directs the reader to a

“[m]ap and driving directions on [the] next page.” Ibid. The second page gives driving

directions to the “large open parking lot” at the trailhead. Id. at 2. Thus, in the context of the

entire trail description, the initial statement “Northwest Forest Pass Required” cannot

reasonably be construed as a mandate that pedestrians hiking or bicyclists riding to the Ramona

Falls Trail must purchase a pass. And in the context of “the record taken as a whole,”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), that initial

statement does not put into reasonable dispute the proposition that pedestrians and bicyclists

need not pay the fee. See Madison v. Frazier, 539 F.3d 646, 652 (7th Cir. 2008) (“The existence

of merely a scintilla of evidence in support of the non-moving party’s position is insufficient [to

forestall summary judgment]; there must be evidence on which the jury could reasonably find for

the non-moving party.”).

Accordingly, even setting aside Watts’s declaration, the record indisputably shows that

that non-parkers need not pay any fee at the Ramona Falls Trailhead. And although no

confirmation is necessary, Watts’s declaration confirms this conclusion. Watts avers that people

travel to the Mount Hood Wilderness “not only by car but also by foot and by bicycle,” Doc. 75-

5 at ¶ 15, and that “[h]iking, camping, skiing, and other recreational uses are all permitted

without any charge,” id. at ¶ 16. She further avers that “[v]isitors who park a vehicle in the

Ramona Falls trailhead parking lot are required to pay a nominal fee,” id. at ¶ 26, but that “[n]o

charge is imposed upon a visitor who hikes in the forest or who uses the amenities offered at the

trailhead as long as the visitor does not park a vehicle in the parking lot,” id. at ¶ 33. Dana

adduces no evidence, including Watts’s deposition testimony, that contradicts her averments.

In sum, the record indisputably shows that visitors to the Ramona Falls Trailhead were

required to buy a Forest Service recreation pass only if they parked a car at the trailhead. It

follows under the court’s interpretation of the Oregon recreational use statute’s “parking fee”

provision that a reasonable jury would have to find that the $5 fees that Johnson paid were

“parking fee[s] of $15 or less per day.” Or. Rev. Stat. § 105.672(1)(c). The United States

therefore did not “make[] any charge for permission to use the land,” id. § 105.688(3), and

accordingly is immune from this suit under Oregon law.

Conclusion

Along with Brent’s other family members and friends, Dana suffered an unimaginable

loss on August 12, 2014. She surely was entitled to seek redress against the United States under

the FTCA. Once she did, the FTCA entitled the United States to assert defenses established by

Oregon law, including a defense that turns on the esoteric question whether the $5 fees paid by

Johnson qualify as “parking fees” under the Oregon recreational use statute. The court takes no

pleasure in granting summary judgment to the United States, particularly based on that defense,

but that is the correct result under the facts and law. As noted, Dana’s motion to strike Watts’s

declaration is denied in part and denied as moot in part, and her motion to strike Kattell’s

declaration is denied as moot. Judgment will be entered in favor of the United States.

January 5, 2021

United States District Judge

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