White v. United States Department of Agriculture Forest Service

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

DANIEL LEE WHITE,

Plaintiff, No. 3:20-cv-02259-MO

v. OPINION AND ORDER

UNITED STATES OF AMERICA

Defendant.

MOSMAN, J.,

This matter comes before me on Defendant’s Motion to Dismiss [ECF 8]. For the reasons

below, I GRANT Defendant’s Motion and DISMISS the case with prejudice.

BACKGROUND

In August 2014, Plaintiff Daniel Lee White operated an All-Terrain Vehicle (“ATV”) in

Mt. Hood National Forest. First Am. Compl. [ECF 7] ⁋ 7. To operate an ATV on trails in Mt.

Hood National Forest, a license must be purchased from the State of Oregon. Id. ⁋ 6. Oregon

uses funds from these licenses to provide grants that support ATV use on publicly and privately

held land, which includes granting funds to the United States Forest Service. Pl.’s Resp. [ECF 9]

Ex. 4, at 6, 8–9; id. Ex. 5; id. Ex. 6; id. Ex. 7. Oregon created and operates the ATV program. Id.

Ex. 4, at 6. The parties agree that the U.S. Forest Service itself does not collect ATV license fees.

Mr. White purchased his ATV license through Apex Motor Sports in Oregon City,

Oregon. First Am. Compl. [ECF 7] ⁋ 8. While driving in Mt. Hood National Forest, Mr. White’s

ATV dropped into a hidden ditch, causing him several injuries. Id. ⁋ 7. Mr. White brings a

negligence claim against the United States Forest Service for failure to warn or guard against

foreseeable hazards on the ATV trail. Id. ⁋ ⁋ 5, 11.

The United States moves to dismiss with prejudice all of Mr. White’s claims. It argues

that Mr. White failed to state a claim upon which relief may be granted because the claim is

barred by Oregon’s recreational immunity statute. Def.’s Mot. Dismiss [ECF 8] at 1, 5.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). The plausibility standard “asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. Additionally, “the assertion of an affirmative defense may

be considered properly on a motion to dismiss where the ‘allegations in the complaint suffice to

establish’ the defense.” Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013) (quoting Jones

v. Bock, 549 U.S. 199, 215 (2007)).

DISCUSSION

I. Federal Tort Claims Act

The Federal Tort Claims Act “waives the sovereign immunity of the United States for

claims based on the negligent or wrongful acts of United States employees.” Yanez v. United

States, 63 F.3d 870, 872 (9th Cir. 1995); 28 U.S.C. § 1346. The United States is liable “in the

same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C.

§ 2674. Because Mr. White’s accident occurred in Oregon, this action is governed by Oregon

law. 28 U.S.C. § 1346(b); Yanez, 63 F.3d at 872.

II. Recreational Immunity

Under Or. Rev. Stat. § 105.682, “an 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 . . . when the owner of land either directly or indirectly permits any person to use the

land for recreational purposes.” However, this immunity does not apply “if the owner makes any

charge for permission to use the land for recreational purposes.” Or. Rev. Stat. § 105.688(3).

Mr. White asserts that the ATV license fee paid to the State of Oregon is a charge and

therefore recreational immunity does not shield the United States from negligence liability. Pl.’s

Resp. [ECF 9] at 7. Mt. Hood National Forest is open to the public for ATV use, thus the U.S.

Forest Service permits use of the land for recreational purposes. First Am. Compl. [ECF 7] ⁋ 1.

Because the U.S. Forest Service receives grant funding from Oregon ATV license fees, Mr.

White argues the United States collected a charge and thus recreational immunity is waived. Pl.’s

Resp. [ECF 9] at 6–8.

The United States contends that the State of Oregon made the charge for the ATV license

fees, not the United States as owner of Mt. Hood National Forest. Def.’s Reply [ECF 10] at 3.

Additionally, the United States asserts that the funding the U.S. Forest Service received from

Oregon ATV licenses does not qualify as a charge under Oregon’s recreational immunity statute

because it is not a fee requested in return for permission to go on or use the land. Id. at 3–4.

Thus, the United States argues that recreational immunity applies and the complaint should be

dismissed with prejudice. Id. at 5.

“Charge” is defined in Or. Rev. Stat § 105.672(1) as “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.” Or. Rev. Stat. § 105.672(1)(b) also states that a charge “[d]oes not mean

any amount received from a public body in return for granting permission for the public to enter

or go upon the owner’s land.” The Supreme Court of Oregon further clarified that the word

charge “encompasses both fees to enter land and fees to use land as long as that use entails

moving over or on the land for a recreational purpose.” Coleman v. Oregon Parks and

Recreation Dep’t ex rel. State, 217 P.3d 651, 655–56 (Or. 2009) (finding that a state park

camping fee constituted a charge that barred recreational immunity for the camper’s bike injury

in the same park).

In a case with very similar facts to this one, this court said that if a fee is not asked by the

owner, it is not a charge. Ellwood v. United States, Civ. No. 07–6225–TC, 2009 WL 3125480, at

*3 (D. Or. Sept. 25, 2009). The court found that recreational immunity barred the plaintiff’s

negligence claim against the United States because the ATV permit fees were paid to the State of

Oregon. Id. Thus, the United States did not charge for permission to enter or go upon the land.

Id.

I find that the ATV license fee that Mr. White paid to the State of Oregon is not a charge.

The United States, as owner of Mt. Hood National Forest, did not request or expect a charge in

return for granting permission to enter or use the land. Rather, as in Ellwood, the State of Oregon

collected the license fee. Although some of the ATV license funds are granted to the U.S. Forest

Service, Or. Rev. Stat. § 105.672(1)(b) provides that any amount a landowner receives from a

public body in return for granting the public permission to enter their land is not a charge.

Accordingly, the funding that the U.S. Forest Service received from Oregon ATV licenses does

not meet the definition of charge in Or. Rev. Stat. § 105.672(1), because the U.S. Forest Service

received the funds from Oregon in return for granting the public permission to enter U.S. Forest

Service land. The U.S. Forest Service did not request or expect these fees for opening Mt. Hood

National Forest to the public. Thus, this case is distinguishable from Coleman, where the fee was

collected by the owner. Here, since the owner of the land did not make the charge, the exception

to recreational immunity under Or. Rev. Stat. § 105.688(3) does not apply.

Because the ATV permit is not a charge, recreational immunity applies and IGRANT

Defendant’s motion.

Ill. Whether to Dismiss with Prejudice

Finally, Mr. White requests leave to amend his complaint under FRCP 15(a)(2) to better

allege the facts showing that recreational immunity was waived. Because recreational immunity

clearly applies, I find any amendment would be futile. Thus, I DISMISS this case with prejudice.

CONCLUSION

For the reasons stated above, I GRANT Defendant’s Motion to Dismiss [ECF 8] and

DISMISS Plaintiffs First Amended Complaint [ECF 7] with prejudice.

IT IS SO ORDERED.

DATED this_1___ day of July, 2021.

Wachasl UU) Wleaman

MICHAEL W. MOSMAN

United States District Judge

5 — OPINION AND ORDER