Stedman v. Dept. of Forestry

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.