McCormick v. State Parks and Recreation Dept.

452

Argued and submitted May 15, 2019, at Mt. Hood Community College,

Gresham, Oregon; decision of Court of Appeals reversed, and case remanded to

Court of Appeals for further proceedings May 21, 2020

Benjamin McCORMICK,

Respondent on Review,

v.

STATE OF OREGON,

by and through the

Oregon State Parks and Recreation Department,

Petitioner on Review.

(CC 14CV00131) (CA A159931) (SC S066206)

466 P3d 10

Plaintiff brought an action against the state for injuries he sustained while

recreating in Lake Billy Chinook. The state moved for summary judgment,

asserting that it was entitled to recreational immunity under ORS 105.682.

Plaintiff opposed the motion on the ground that that statute applies when the

landowner permits the public to recreate on its land, and the state could not

“permit” recreation at Lake Billy Chinook because it had no authority to prohibit

that use. The trial court granted that state’s motion. On appeal, the Court of

Appeals reversed. Held: For purposes of the recreational immunity statute, an

owner can “permit” public recreational use of its land, even if it cannot prohibit

that use, by, among other things, making that use possible by providing access to

and developing the land.

The decision of the Court of Appeals is reversed, and the case is remanded to

the Court of Appeals for further proceedings.

En Banc

On review from the Court of Appeals.*

Peenesh Shah, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on

review. Also on the briefs were Ellen F. Rosenblum, Attorney

General, Benjamin Gutman, Solicitor General, and Jordan

R. Silk, Assistant Attorney General.

Shenoa Payne, Richardson Wright LLP, Portland,

Oregon, argued the cause and filed the brief for respondent

on review.

______________

* Appeal from Jefferson County Circuit Court, Gary Williams, Judge. 293 Or

App 197, 427 P3d 199 (2018).

Cite as 366 Or 452 (2020) 453

Michael J. Jeter, Assistant Deputy City Attorney, City of

Portland, Portland, filed the brief for amicus curiae City of

Portland. Also on the brief was Denis M. Vannier, Senior

Deputy City Attorney.

Kathryn H. Clarke, Portland, filed the brief for amicus

curiae Oregon Trial Lawyers Association.

Cortney D. Duke-Driessen, Washington County Counsel,

Hillsboro, filed the brief for amici curiae Oregon Association

of Counties, League of Oregon Cities, & Special Districts

Association of Oregon. Also on the brief was Christopher

Gilmore, Senior Assistant County Counsel.

James A. Fraser, Bend, filed the brief for amicus curiae

Bend Park and Recreation District. Also on the brief was

Mark G. Reinecke.

DUNCAN, J.

The decision of the Court of Appeals is reversed, and

the case is remanded to the Court of Appeals for further

proceedings.

454 McCormick v. State Parks and Recreation Dept.

DUNCAN, J.

This case concerns the scope of the recreational

immunity statute, ORS 105.682. As relevant here, that stat-

ute limits an owner’s liability for injuries on its land if it

“directly or indirectly permits” the public to use the land for

recreational purposes. Plaintiff brought this action against

the state for injuries he sustained while recreating in Lake

Billy Chinook. The state moved for summary judgment,

asserting that it was entitled to recreational immunity

under ORS 105.682. In response, plaintiff contended that

the state did not “directly or indirectly permit” the public to

use the lake for recreational purposes. Specifically, he con-

tended that, under both the public trust doctrine and the

public use doctrine, the public already had a right to use

the lake for recreational purposes and, therefore, the state

did not “permit” that use. The trial court granted the state

summary judgment, but the Court of Appeals reversed.

McCormick v. State Parks and Recreation Dept., 293 Or App

197, 427 P3d 199 (2018). On review, we reverse the Court of

Appeals decision. As we explain below, for the purposes of

the recreational immunity statute, an owner can “permit”

public recreational use of its land, even if it cannot com-

pletely prohibit that use. More specifically, an owner can

“permit” public recreational use of its land if, among other

alternatives, it makes that use possible by creating access to

and developing the land for that use.

I. HISTORICAL AND PROCEDURAL FACTS

We begin with the facts, which we state in the light

most favorable to plaintiff. Jones v. General Motors Corp.,

325 Or 404, 408, 939 P2d 608 (1997) (when reviewing a trial

court’s grant of summary judgment, an appellate court views

the evidence in the light most favorable to the nonmoving

party). Plaintiff’s claims arise from his recreational use of

Lake Billy Chinook, a reservoir created by the Round Butte

Dam at the confluence of three rivers: the Crooked River, the

Deschutes River, and the Metolius River. The lake is mostly

surrounded by Cove Palisades State Park. The state has

built roads and three “day use” areas in the park. Without

the day use areas, it would be difficult to reach the lake

Cite as 366 Or 452 (2020) 455

because it is in a steep-walled canyon. According to plain-

tiff, “the only way to safely access the lake is to use one of

the three day use areas.” In the day use areas, there are

parking lots, boat ramps, piers, and swimming areas. The

public uses the lake for recreational activities, including

boating, fishing, and swimming.

Plaintiff and his family drove to a day use area,

paid a five-dollar fee, and parked their car. Plaintiff went

to the edge of the lake, ran out on a gabion pier, and dove in

the water. He hit his head on a submerged boulder and was

seriously injured.

Plaintiff later brought this personal injury action

against the state, claiming that the state’s negligence with

respect to the boulder contributed to his injuries. In his com-

plaint, plaintiff alleged that the state

“expressly or impliedly led the public to believe that the

Day Use Area was intended to be used for water sports * * *

and that such use was not only acquiesced in by [the state],

but was also in accordance with the intention or design

with which the Day Use Area was adapted and prepared.”

In addition, plaintiff alleged, the pier from which he dove

“was open to, and made available for use by, [the state’s]

invitees, including [plaintiff], as part of the Day Use Area’s

preparation and use as a water sports destination.”

The state moved for summary judgment, assert-

ing that it was entitled to recreational immunity under the

recreational immunity statutes, ORS 105.672 to 105.696.

As relevant here, the recreational immunity statute, ORS

105.682, provides:

“an owner of land is not liable in contract or tort for any

personal injury * * * 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 * * * [and] the principal purpose for

[the person’s] entry upon the land is for recreational pur-

poses * * *.”

(Emphases added.)

456 McCormick v. State Parks and Recreation Dept.

For the purposes of the recreational immunity stat-

utes, “owner” is defined broadly; it includes “the possessor

of any interest in any land, including but not limited to the

holder of any legal or equitable title, a tenant, a lessee, an

occupant, the holder of an easement, the holder of a right of

way or a person in possession of the land.” ORS 105.672(4)(a).

“Land” is also defined broadly; it means “all real property,

whether publicly or privately owned.” ORS 105.672(3). An

owner is not entitled to recreational immunity if the owner

intentionally injures a person, ORS 105.682(2), or if the

owner charges certain fees for the use of the land for rec-

reational purposes. ORS 105.688(3). A parking fee of $15 or

less per day is not such a fee. ORS 105.672(1)(c).

In its motion for summary judgment, the state

asserted that it occupied and operated the day use area that

plaintiff had used and that it charged a five-dollar parking

fee to park in the area. For the purposes of the motion, the

state assumed that either plaintiff or his family paid the fee.

The state argued that it was entitled to recreational immu-

nity because it was an “owner” of the land where plaintiff

was injured, it “permitted” the public to use the land free of

charge for recreational purposes, and plaintiff entered the

land for a recreational purpose.

Plaintiff filed a response to the state’s summary

judgment motion, making two arguments. First, he argued

that the state did not “permit” the public to use the lake,

because—under both the public trust doctrine and the pub-

lic use doctrine—the public already had “an absolute right

to use—and recreate in—the lake.”1 (Emphasis in original.)

Second, he argued that, even if the state did “permit” the

1

This court recently described those doctrines in Kramer v. City of Lake

Oswego, 365 Or 422, 430, 446 P3d 1 (2019), stating:

“In Oregon, two related doctrines create a public right to use certain

bodies of water, regardless of who owns the abutting upland. The first applies

to bodies of water that are considered navigable as a matter of federal law.

Title to the lands underlying those navigable waters passed to the state when

Oregon was admitted into the Union, to be ‘held in trust for the public uses

of navigation and fishery[.]’ Corvallis Sand & Gravel v. Land Board, 250 Or

319, 334, 439 P2d 575 (1968) (quoting Winston Bros. Co. v. State Tax Com.,

156 Or 505, 511, 62 P2d 7 (1936)) * * *; PPL Montana, LLC v. Montana, 565 US

576, 591, 132 S Ct 1215, 182 L Ed 2d 77 (2012) (explaining statehood transfer

of title to the lands underlying navigable waters). The second doctrine rec-

ognizes a public right to use other waterways, even if title to the underlying

Cite as 366 Or 452 (2020) 457

public to use the lake, there were questions of fact regarding

whether the five-dollar fee was a parking fee or a use fee

and that he should be allowed additional time for discovery

regarding that issue.

In reply, the state assumed, for the purposes of its

summary judgment motion, that the lake was subject to the

public trust doctrine, but it disputed that the lake was sub-

ject to the public use doctrine. It argued that the doctrines

do not grant the public an absolute right to recreate on nav-

igable waterways and do not negate recreational immunity.

The trial court rejected both of plaintiff’s arguments

and granted the state’s motion for summary judgment. It

held that the state “directly or indirectly permit[ted]” plain-

tiff to use the day use area for recreational purposes, noting

that the recreational immunity statute does not contain any

exceptions for waters that are subject to either the public

trust doctrine or the public use doctrine. It also held that

plaintiff (or his family) was charged a “parking fee.” Based

on those holdings, the trial court entered a general judg-

ment dismissing plaintiff’s complaint.

Plaintiff appealed. He renewed his argument that

the state did not “directly or indirectly permit” the public

to use the lake for recreational purposes because the pub-

lic already had a right to recreate in the lake pursuant to

both the public trust doctrine and the public use doctrine.

He also argued that the trial court had abused its discre-

tion by denying him additional time for discovery regard-

ing whether the five-dollar fee was a parking fee or a use

fee. The Court of Appeals reversed, McCormick, 293 Or App

at 201, relying on a case that it had issued the same day,

land is privately held, as long as the water is ‘navigable in a qualified or

limited sense.’ Luscher v. Reynolds, 153 Or 625, 631, 634, 56 P2d 1158 (1936).”

(Internal footnote omitted.) “[F]or either category of waterway, ‘the public has

the paramount right to the use of the waters.’ ” Id. at 433 (citing Luscher, 153

Or at 634-35). The public’s right to use the waters includes the right to use the

waters for recreation. Guilliams v. Beaver Lake Club, 90 Or 13, 28-29, 175 P 437

(1918). However, as this court observed in Kramer with respect to the public trust

doctrine, the public’s right to use the waters “is not absolute.” 365 Or at 446. “We

have held in the context of the public’s right to fish that the state ‘in its sovereign

capacity in trust for its people’ may regulate and even prohibit the public’s right

to fish in navigable waters of [the] state.” Id. (citing Anthony et al. v. Veacth et al.,

189 Or 462, 474, 220 P2d 493 (1950)).

458 McCormick v. State Parks and Recreation Dept.

Ortega v. Martin, 293 Or App 180, 427 P3d 1103 (2018). In

Ortega, the Court of Appeals ruled that

“a landowner must make a volitional decision to open the

land to the public for recreational use in order to ‘permit’

the recreational use of the land within the meaning of

ORS 105.682. That necessarily means that to ‘permit’ rec-

reational use within the meaning of the statute, an owner of

land must have the authority to make the required volitional

decision to allow recreational use.”

Id. at 191 (emphasis added).

Applying Ortega in this case, the Court of Appeals

held that, because the state had not demonstrated that it had

“the authority to decide whether or not to allow the public’s

recreational use of Lake Billy Chinook,” the trial court had

erred in granting the state summary judgment. McCormick,

293 Or App at 200-01. Given that holding, the Court of

Appeals did not reach plaintiff’s alternative argument that

the trial court had abused its discretion by denying plain-

tiff additional time for discovery regarding the nature of the

five-dollar fee. On the state’s petition, we allowed review.

II. ANALYSIS

Plaintiff’s argument against the state’s claim of

recreational immunity has two components. First, plain-

tiff argues that “[a] landowner cannot ‘permit’ the public

to recreate on its property if the public already has a legal

right to recreate on the land.” Second, plaintiff argues that,

under both the public trust doctrine and the public use doc-

trine, the public already had a right to recreate in Lake

Billy Chinook and, therefore, the state could not “permit”

the public to recreate in the lake. For the reasons explained

below, we reject plaintiff’s first argument. Therefore, we do

not reach his second.2

2

As mentioned, plaintiff asserts that, under the public trust doctrine (which

applies to title-navigable waters) and the public use doctrine (which applies to

navigable-in-fact waters), the public has an absolute right to recreate in Lake

Billy Chinook. For the purposes of its summary judgment motion, the state

argued that, even if the lake is subject to the doctrines and even if the doctrines

preclude it from banning recreational use of the lake, it was still entitled to rec-

reational immunity. Because we agree with that argument, we do not address

whether the lake is subject to either doctrine or whether either doctrine would

preclude it from banning recreational use of the lake.

Cite as 366 Or 452 (2020) 459

A. Statutory Interpretation

Plaintiff’s first argument requires us to inter-

pret the recreational immunity statute, ORS 105.682.

Specifically, it requires us to determine whether an owner

of land can “directly or indirectly permit” use of its land for

recreational purposes if the public already has a right to

use the land for those purposes from another source. When

interpreting a statute, our task is to discern the legislature’s

intent. ORS 174.020(1)(a). To do so, we consider the text and

context of the statute, as well as any helpful legislative

history. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042

(2009).

1. Text

We begin with the text. In full, ORS 105.682

provides:

“(1) Except as provided by subsection (2) of this sec-

tion, and subject to the provisions of ORS 105.688,[3] 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, gardening, woodcutting

or the harvest of special forest products when the owner of

land either directly or indirectly permits any person to use

the land for recreational purposes, gardening, woodcutting

or the harvest of special forest products. The limitation

on liability provided by this section applies if the prin-

cipal purpose for entry upon the land is for recreational

purposes, gardening, woodcutting or the harvest of special

forest products, and is not affected if the injury, death or

damage occurs while the person entering land is engaging

in activities other than the use of the land for recreational

purposes, gardening, woodcutting or the harvest of special

forest products.

“(2) This section does not limit the liability of an owner

of land for intentional injury or damage to a person coming

onto land for recreational purposes, gardening, woodcut-

ting or the harvest of special forest products.”

3

ORS 105.688, which is set out below, 366 Or at 462-63, describes the lands

to which recreational immunity applies and provides that recreational immunity

is not available if an owner charges for recreational use of its land.

460 McCormick v. State Parks and Recreation Dept.

(Emphases added.) Thus, ORS 105.682(1) limits an owner’s

liability, and ORS 105.682(2) provides that the limit does

not apply to liability for intentional injuries.

Under ORS 105.682, an owner is eligible for recre-

ational immunity if it “directly or indirectly permits” recre-

ational use of its land. The dictionary definition of “permit”

includes several meanings:

“per • mit * * * vt 1 : to consent to expressly or formally

: grant leave for or the privilege of : ALLOW, TOLERATE * * *

2 : to give (a person) leave : AUTHORIZE * * * 4 : to make

possible * * *”

Webster’s Third New Int’l Dictionary 1683 (unabridged

ed 2002) (uppercase and boldface in original). As defined,

“permit” can refer to active or passive behavior. It may

involve an affirmative grant, or it may involve mere tol-

erance. It may also involve making an activity or result

possible.

Plaintiff argues that, in order to “permit” recre-

ational use of land, an owner must have the authority to

prohibit that use. That is one possible understanding of the

term “permit,” but it does not necessarily follow from the

definition of “permit.” The definition includes “tolerate,”

which indicates that an owner can “permit” recreational use

of its land even when it cannot prohibit that use. “Tolerate”

is defined as follows:

“tol • er • ate * * * 2 : to permit the existence or practice of

: allow without prohibition or hindrance : make no effort to

prevent <a legitimate government—that is, one that rests

on consent—can ~ an opposition –Lindsay Rogers> 3 : to

endure with forbearance or restraint : put up with : BEAR

<recommends that we should learn to ~ one another * * *

<~ the offstage egotism and eccentricities of artists –John

Mason Brown>”

Webster’s at 2405 (uppercase and boldface in original). Thus,

it is possible that an owner can “permit” recreational use

of its land if it “make[s] no effort to prevent” the use or it

“put[s] up with” or “bears” the use. Id.

The definition of “permit” also includes “make possi-

ble,” which suggests that an owner can “permit” recreational

Cite as 366 Or 452 (2020) 461

use of its land if it makes such use possible as a practical

matter, even if the public already has a right to recreate on

the land. For example, an owner can “permit” recreational

use of its land by providing access to the land or building

or maintaining facilities on the land, if those actions make

recreational use of the land possible as a practical matter.

That the legislature used the phrase “directly or

indirectly” to modify “permit” indicates that it intended that

an owner can “permit” recreational use of its land in differ-

ent ways, any of which would support a claim of recreational

immunity. An owner can “directly permit” recreational use

if it consents expressly or formally to the use, and it can

“indirectly permit” recreational use if it tolerates the use

or makes the use possible. The fact that the legislature pro-

vided that an owner can “indirectly permit” recreational use

of its land indicates that an owner can “permit” recreational

use by tolerating it or making it possible, which, in turn,

indicates that an owner can “permit” the use even if the

public already has a right to recreate on the land. In other

words, it suggests that an owner’s ability to “permit” rec-

reational use of its land is not contingent upon whether it

can prohibit that use. Thus, the plain text of ORS 105.682(1)

points toward the conclusion that an owner can “permit” rec-

reational use of its land in a variety of ways, ranging from

express consent to mere tolerance, and that it can “permit”

that use even if the public already has a right to recreate on

the land from another source, such as an easement or the

public trust doctrine.

2. Context

The context of ORS 105.682 also supports the view

that an owner can “permit” recreational use of its land, even

if it lacks the authority to prohibit that use. The context of

a statute includes related statutes. PGE v. Bureau of Labor

and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). ORS

105.682 is one of several related statutes governing rec-

reational immunity. ORS 105.672 - 105.696. One of those

statutes, ORS 105.676, sets out the policy underlying recre-

ational immunity. It provides:

“The Legislative Assembly hereby declares it is the public

policy of the State of Oregon to encourage owners of land to

462 McCormick v. State Parks and Recreation Dept.

make their land available to the public for recreational pur-

poses, for gardening, for woodcutting and for the harvest

of special forest products by limiting their liability toward

persons entering thereon for such purposes and by protect-

ing their interests in their land from the extinguishment

of any such interest or the acquisition by the public of any

right to use or continue the use of such land for recreational

purposes, gardening, woodcutting or the harvest of special

forest products.”

(Emphasis added.) Thus, the recreational immunity stat-

utes are intended to encourage owners to “make their land

available to the public for recreational purposes.” ORS

105.676. That indicates that an owner can “permit” recre-

ational use of its land by making the land “available” for

that use. An owner can do that in a variety of ways. It can

make the land accessible for, or capable of use for, recre-

ational purposes. Webster’s at 150 (defining “available” to

mean, inter alia, “capable of use for the accomplishment of a

purpose * * * immediately utilizable” and “that is accessible

or may be obtained”). Or, because “available” is synonymous

with “open,” it can simply hold the land open to the public.

Webster’s at 1579 (defining “open” to mean, inter alia, “avail-

able to use * * * accessible, suitable, usable”) (uppercase

modified). Thus, considering the word “permit” in context

indicates that it includes actions that an owner can take to

facilitate the use of its land for recreational purposes, even

if the public already has a right to recreate on the land from

another source.

Another one of the recreational immunity stat-

utes, ORS 105.688, provides further support for that view.

It describes the circumstances in which recreational immu-

nity applies, and it indicates that the legislature intended it

to apply broadly. It provides:

“(1) Except as specifically provided in ORS 105.672 to

105.696, the immunities provided by ORS 105.682 apply to:

“(a) All land, including but not limited to land adjacent

or contiguous to any bodies of water, watercourses or the

ocean shore as defined by ORS 390.605;

“(b) All roads, bodies of water, watercourses, rights

of way, buildings, fixtures and structures on the land

described in paragraph (a) of this subsection;

Cite as 366 Or 452 (2020) 463

“(c) All paths, trails, roads, watercourses and other

rights of way while being used by a person to reach land for

recreational purposes, gardening, woodcutting or the har-

vest of special forest products, that are on land adjacent

to the land that the person intends to use for recreational

purposes, gardening, woodcutting or the harvest of special

forest products, and that have not been improved, designed

or maintained for the specific purpose of providing access

for recreational purposes, gardening, woodcutting or the

harvest of special forest products; and

“(d) All machinery or equipment on the land described

in paragraph (a) of this subsection.”

(Emphases added.) Thus, the legislature has provided that

recreational immunity applies on “all land” and all “bodies

of water” and “watercourses” on that land. The legislature’s

use of those terms indicates that it intended recreational

immunity to be broadly available, which weighs against

plaintiff’s argument that the immunity does not apply to

land that the public already has a right to use for recreation.

Under plaintiff’s argument, recreational immunity

would not apply to many lands and waters, including many

obvious and important recreational resources. Plaintiff’s

position is that an owner cannot “permit” recreational use

of its land, or the waters on it, if the owner “has no ability

to object to or exclude recreational use.” Therefore, plaintiff

contends, owners cannot “permit” recreational use of lands

and waters that are subject to either the public trust doc-

trine or the public use doctrine. That means, according to

plaintiff, that recreational immunity does not apply to any

navigable waters in the state, whether publicly or privately

owned.

Plaintiff’s argument is at odds with the broad lan-

guage of ORS 105.688. If the legislature had intended to cat-

egorically exclude all navigable waters from the protection

of the recreational immunity statute, it could have easily

done so. It could have provided that recreational immunity

applies to “non-navigable bodies of water and watercourses.”

But it did not. Instead, it provided that recreational immu-

nity applies to “[a]ll land” and “[a]ll * * * bodies of water

[and] watercourses” on that land. That broad language mil-

itates against construing “permit” in a manner that would

464 McCormick v. State Parks and Recreation Dept.

categorically exclude navigable waters from the coverage of

the recreational immunity statute.

Moreover, the effect of plaintiff’s argument would

not be limited to navigable waters. As mentioned, plaintiff’s

argument is that an owner cannot “permit” recreational use

of its land if it cannot prohibit that use. Under that argu-

ment, recreational immunity would not apply to lands along

the ocean that the public has a right to use pursuant to the

doctrine of custom, including privately owned lands. State

ex rel Thornton v. Hay, 254 Or 584, 595, 462 P2d 671 (1969)

(holding that, under the doctrine of custom, the public has

the right to recreate on the dry-sand area along the Pacific

Ocean, up to the vegetation line). In addition, it would not

apply to lands subject to dedications for public recreational

use, such as lands deeded to governments for use as parks,

nature reserves, or scenic sites.4 Finally, it would not apply

to lands, whether publicly or privately owned, that are sub-

ject to easements or prescriptions for public recreational

use. Owners of such lands could not avail themselves of rec-

reational immunity, even if they expressly invited the public

to recreate on their lands. Such significant limitations on

the applicability of recreational immunity would be incon-

sistent with the context of ORS 105.682, and, as we shall

explain, its legislative history.

3. Legislative History

The legislative history of ORS 105.682 provides fur-

ther support for the view that an owner can “permit” public

recreational use of its land, even if it cannot prohibit such

use. ORS 105.682 was enacted in 1995, as part of House

Bill (HB) 2296, which repealed and replaced the prior recre-

ational immunity statutes, which had been enacted in 1971.

Or Laws 1995, ch 456.5 As originally drafted, HB 2296

4

For the purposes of the recreational immunity statutes, “ ‘recreational pur-

poses’ includes, but is not limited to, outdoor activities such as hunting, fishing,

swimming, boating, camping, picnicking, hiking, nature study, outdoor edu-

cational activities, waterskiing, winter sports, viewing or enjoying historical,

archaeological, scenic or scientific sites or volunteering for any public purpose

project.” ORS 105.672(5).

5

As explained by one of its sponsors, Representative Kevin Mannix, HB

2296 consolidated and modified two statutory schemes, one that provided immu-

nity to owners who made their lands available to the public for recreation and

Cite as 366 Or 452 (2020) 465

did not expressly provide recreational immunity for pub-

lic lands, but it was later amended to do so in response to

concerns voiced by public landowners. John Brenneman of

Idaho Power proposed that HB 2296 be amended to provide

that recreational immunity applies to all lands, including

public lands. Tape Recording, House Committee on Natural

Resources, Subcommittee on Agriculture and Forestry,

HB 2296, Jan 30, 1995, Tape 5, Side A (statement of John

Brenneman). Brenneman testified that Idaho Power admin-

istered public lands, including land along the Snake River

where there were three dams that created reservoirs that

the public used for recreation, including fishing and boating.

Id. He explained that the river banks were steep and that

there was “inherent danger in that area from recreation.”

Id. He asked the legislators to amend HB 2296 as he had

proposed, so that recreational immunity would apply “to all

land, not just private, but public as well.” Id.

Brenneman’s amendment was supported by other

public landowners. Alan Willis of the Port of Portland testi-

fied that the port had properties that were open to the public

for recreation, including properties on the banks of Columbia

River and Government Island, which is in the Columbia

River. Tape Recording, House Committee on Natural

Resources, Subcommittee on Agriculture and Forestry, HB

2296, Jan 30, 1995, Tape 4, Side B (statement of Alan Willis).

He asked the legislators to apply recreational immunity to

ports and other public land. Id. Similarly, Ken Armstrong

of the Oregon Public Ports Association testified that “ports

own a lot of properties, much of which is undeveloped, much

of which they provide for the use of their taxpayers to access

for fishing purposes or other recreational purposes,” and he

asserted that “the public landowners ought to be treated

the same as the private landowners.” Tape Recording,

Senate Committee on Water and Land Use, HB 2296,

Apr 26, 1995, Tape 127, Side B (statement of Ken Armstrong);

another that provided immunity for owners who made their lands available

to the public for woodcutting. Tape Recording, House Committee on Natural

Resources, Subcommittee on Agriculture and Forestry, HB 2296, Feb 27, 1995,

Tape 12, Side A (statement of Rep Kevin Mannix); HB 2296, § 9 (repealing for-

mer ORS 105.655 - 105.680 (1993) (governing recreational immunity) and former

ORS 105.685 - 105.687 (1993) (governing woodcutting immunity)); Or Laws 1995,

ch 456, § 9.

466 McCormick v. State Parks and Recreation Dept.

Tape Recording, House Committee on Natural Resources,

Subcommittee on Agriculture and Forestry, HB 2296,

Feb 27, 1995, Tape 12, Side A (statement of Ken Armstrong)

(noting that, “by its nature,” much of the property owned by

ports “is waterfront property, which is of some interest from

a recreational standpoint”). The legislature approved HB

2296, amended as Brenneman had proposed to provide that

recreational immunity applies to all lands, public and pri-

vate, and all waters on those lands. Or Laws 1995, ch 456,

§ 4.

That the legislature acted in response to public

landowners’ concerns about liability arising from public rec-

reation on their properties, including water activities, indi-

cates that the legislature intended recreational immunity to

apply to such activities. It also weighs against any sugges-

tion that, when the legislature provided that recreational

immunity applies to “[a]ll land” and “[a]ll * * * bodies of

water [and] watercourses” on that land, it meant to exclude

navigable waters, like the Snake River and the Columbia

River.6

Since 1995, the legislature has amended the recre-

ational immunity statutes in ways that are consistent with

the view that an owner can “permit” recreational use of its

land, even if the owner lacks the authority to prohibit that

use. Those amendments show that that view is consistent

with a common understanding of the recreational immunity

statute and its purpose. See Halperin v. Pitts, 352 Or 482,

6

Given the testimony of Willis and Armstrong, it is likely that legislators

had navigable waters in mind. Indeed, when Willis testified, Representative

Bill Fisher told him that some of the legislators had toured the Port of Portland

and had seen the public recreating in the port’s waters. Specifically, Fisher said,

“[W]e had a chance to observe some of those public activities taking place on

the Port of Portland property and in their waterways. * * * I’m glad that I was

there and I know a little better about what you’re talking about.” Tape Recording,

House Committee on Natural Resources, Subcommittee on Agriculture and

Forestry, HB 2296, Jan 30, 1995, Tape 4, Side B (statement of Rep Bill Fisher).

Representative Mannix later confirmed that HB 2296 was intended to apply

broadly. He explained that the bill took the then-existing recreational immunity

statutory scheme and woodcutting immunity statutory scheme and “shoved them

together and took the broadest possible definition of ‘land’ and then basically

said that the owner is not liable for anything unless there’s an intentional injury

* * *.” Tape Recording, House Committee on Natural Resources, Subcommittee on

Agriculture and Forestry, HB 2296, Feb 27, 1995, Tape 12, Side A (statement of

Rep Kevin Mannix).

Cite as 366 Or 452 (2020) 467

490, 287 P3d 1069 (2012) (explaining that, although later-

enacted statutes are not context for an earlier-adopted stat-

ute, they can demonstrate consistency in word usage over

time as indirect evidence of legislative intent).

In 2007, the legislature amended the recreational

immunity statutes to ensure that landowners who partici-

pated in state programs in which they received payments for

allowing the public to use their lands for recreation would

be eligible for recreational immunity. Or Laws 2007, ch 372,

§ 1. The amendment was prompted by concerns voiced by

the Oregon Department of Fish and Wildlife (ODFW), which

administered two programs designed to improve wildlife

habitat and public hunting access on private lands through-

out the state. Testimony, House Committee on Agriculture

and Natural Resources, HB 2445, Feb 6, 2007, Ex D (state-

ment of Roy Elicker and Ron Anglin). ODFW representa-

tives testified that landowners who participated in the pro-

grams received payments “in exchange for public access” to

their lands. Id. They explained that landowners were con-

cerned that, because they received payments, they might

not be protected by the recreational immunity statutes. Id.

To address those concerns, the legislature amended ORS

105.672(1), which defines terms for the recreational immu-

nity statutes, to provide that “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 amendment shows that the legislature intended

recreational immunity to apply to lands that the public

already had a right to use as a result of the program par-

ticipants’ agreements with ODFW. In other words, it shows

that the legislature understood that the owners could “per-

mit” use of their lands for recreational purposes, even if,

under their agreements, they could no longer prohibit that

use.

In 2017, the legislature amended the definition of

“owner” to include persons, like employees of landowners,

who may lack the authority to prohibit the public from using

another’s land for recreation. Or Laws 2017, ch 449, § 1.

It did so in response to this court’s decision in Johnson v.

Gibson, 358 Or 624, 369 P3d 1151 (2016). In Johnson, the

plaintiff fell after stepping in a hole in a park and brought

468 McCormick v. State Parks and Recreation Dept.

an action against the city employee who had dug the hole.

This court held that the employee was not entitled to rec-

reational immunity because he was not an “owner” of the

land. At the relevant time, “owner” was defined as “the pos-

sessor of any interest in any land, including but not lim-

ited to possession of a fee title. ‘Owner’ includes a tenant,

lessee, occupant, or other person in possession of the land.”

ORS 105.672 (2007). Thereafter, the legislature amended

the definition of “owner” to include “[a]n officer, employee,

volunteer or agent” of the possessor of any interest in any

land. Or Laws 2017, ch 449, § 1; ORS 105.672(4)(b). Many

counties, cities, and private organizations supported the

amendment, informing the legislature that, after Johnson,

private and public landowners were closing recreational

lands and were discouraged from acquiring and developing

lands for recreational use. See generally Exhibits, House

Committee on Judiciary, SB 327, May 9, 2017. Notably, to

fix the problem the legislature amended the term “owner.”

As the amendment shows, the legislature concluded that a

person—like the employee in Johnson—who may lack the

authority to exclude the public from land, can “permit” use

of the land for the purposes of the recreational immunity

statutes.

To summarize, the legislative history of the 1995

statutes shows that the legislature made recreational immu-

nity applicable to public land and that it did so in response to

concerns voiced by public landowners, including landowners

whose lands were adjacent to navigable waters, which the

public has a right to use for recreation. That, in turn, shows

that the legislature did not intend recreational immunity

to be contingent upon an owner’s authority to prohibit pub-

lic recreational use of its land. Since 1995, the legislature

has continued to act in accordance with that intention, twice

amending the recreational immunity statute in ways that

provide immunity to persons whose ability to prohibit public

recreational use of property is limited.

In arguing against the conclusion that an owner

can “permit” public recreational use of land even if it can-

not completely prohibit that use, plaintiff relies on the 1971

recreational immunity statutes and their legislative history.

As mentioned, those statutes were repealed and replaced by

Cite as 366 Or 452 (2020) 469

the 1995 statutes; they are not the same statutes at issue

in this case. They provide some historical context for the

1995 statutes, but they do not aid plaintiff. To the contrary,

the text of the 1971 recreational immunity statute indicates

that the legislature did not intend recreational immunity

to be contingent upon an owner’s ability to prohibit public

recreational use of its land.

The 1971 statutes originated as Senate Bill (SB)

294. Section 3 of the bill provided for recreational immunity.

It stated:

“Except as otherwise provided in section 5 of this Act,

“(1) An owner of land owes no duty of care to keep the

land safe for entry or use by others for any recreational

purpose or to give any warning of a dangerous condition,

use, structure or activity on the land to persons entering

thereon for any such purpose.

“(2) An owner of land who either directly or indirectly

invites or permits any person to use the land for any recre-

ational purpose without charge does not thereby:

“(a) Extend any assurance that the land is safe for any

purpose;

“(b) Confer upon such person the legal status of an invi-

tee or licensee to whom a duty of care is owed; or

“(c) Assume responsibility for or incur liability for any

injury, death or loss to any person or property caused by an

act or omission of that person.”

SB 294, § 5 (1971) (emphases added). Thus, subsection (1)

abrogated certain common-law duties. In doing so, it pro-

vided immunity for certain claims. The immunity was not

contingent upon any conduct by the owner. It did not depend

on whether the owner permitted the recreational use or

whether the owner had the authority to prohibit such use.

Subsection (2) used the phrase “directly or indirectly per-

mits” but, in context, the purpose of that subsection was

to provide that a landowner’s conduct could not revive the

abrogated duties. Thus, nothing in the text of SB 294 indi-

cates that the immunity it granted was contingent upon an

owner’s ability to prohibit recreational use of its land.

470 McCormick v. State Parks and Recreation Dept.

Other sections of SB 294 limited the immunity it

provided. Like the 1995 statutes, the 1971 statutes included

exceptions. Section 5 provided that the immunity did not

apply if the owner charged for the recreational use of its

land or if the owner recklessly failed to warn against a

dangerous condition, use, structure, or activity on the land.

Notably, it did not include an exception for lands the public

already had a right to use for recreation.

In addition, another section of SB 294 suggests that

it actually was intended to apply to land that the public

already had a right to use. Section 7 of SB 294 provided

for the repeal of two then-existing statutes governing liabil-

ity. One had been enacted in 1963 and was a general recre-

ational immunity statute. Former ORS 30.790, repealed by

Or Laws 1971, ch 780, § 7. The other had been enacted in

1967 as part of Oregon’s Beach Bill and governed liability

of “the owner or person in control of any property subject

to a public easement declared a state recreation area [by

the Beach Bill] or any property subject to [the Beach Bill’s

requirements for permits for improvements]” on the ocean

shore. Former ORS 390.670, repealed by Or Laws 1971,

ch 780, § 7.

It is significant that SB 294 repealed both former

ORS 30.790 and former ORS 390.670. The repeal indicates

that the legislature intended SB 294 to replace those stat-

utes and provide recreational immunity, including for lands

subject to the Beach Bill’s easements for public recreational

use. See Thornton, 254 Or at 595 (holding that public’s rec-

reational easement over dry-sand area applies to private

property). That indicates that the legislature intended the

recreational immunity provided by SB 294 to apply to lands

that the public already had a right to use for recreational

purposes.

Thus, the text and context of SB 294 indicate that

the legislature did not intend recreational immunity to be

contingent upon an owner’s ability to prohibit recreational

use of its land.

In arguing otherwise, plaintiff relies on the legis-

lative history of SB 294. That history shows that the 1971

Cite as 366 Or 452 (2020) 471

statutes were prompted by the concerns of private land-

owners who believed that, unless they took steps to exclude

the public from their lands, they could be liable for injuries

sustained by persons who came onto their lands for rec-

reational purposes. As one of the bill’s sponsors, Senator

Lyndel Newbry, explained, the landowners were concerned

that, in order to protect themselves from liability, they would

have to put up signs or fences to affirmatively exclude the

public. Minutes, House Committee on Natural Resources,

Subcommittee on Natural Resources, SB 294, Apr 26, 1971

(statement of Sen Lyndel Newbry). Plaintiff relies on that

history to argue that the legislature intended recreational

immunity to “provide landowners an incentive to open lands

for recreational purposes that otherwise would be closed to

the public.” (Emphasis added.)

We agree with plaintiff that the legislature intended

recreational immunity to serve as an incentive for land-

owners to make their land available for public recreation,

but we do not agree that the legislature intended to limit the

scope of the immunity as plaintiff contends. First, as just

discussed, the text of SB 294 did not include any such lim-

itation. Second, plaintiff’s argument that “the recreational

immunity statute serves no identifiable purpose for a land-

owner who has no authority to allow or disallow recreational

use on the land” is incorrect.

Recreational immunity serves as an incentive for

owners to hold their land open for recreation, even when the

public has a right to recreate on the land. First, and perhaps

most importantly, because recreational immunity is contin-

gent upon making land available for recreational use free of

charge, it creates an incentive for owners not to charge for

recreational use of their land.

Second, it encourages owners to facilitate use of

their land by creating access and making improvements,

which can make the land available for recreational use, in

a practical sense, as is the case with Lake Billy Chinook.

There are many things an owner can do to make land avail-

able, in the sense of making it accessible. Among them,

an owner can provide information about how to reach the

land, it can build access roads, and it can construct facilities

472 McCormick v. State Parks and Recreation Dept.

that make safe use of the land possible. All of those affir-

mative actions can make the land available as a practical

matter.

Third, recreational immunity creates an incentive

for owners not to restrict the recreational use of their land

to the greatest extent possible. That the public may have

some right to use land does not mean that it has an unlim-

ited right. If recreational immunity is not available to an

owner, the owner may choose to limit its risk of liability by

providing only as much access as it is required to provide.

Plaintiff argues that recreational immunity cannot

serve as an incentive for the state to make lands and waters

available for recreation if they are subject to the public trust

doctrine. According to plaintiff, “it is not the recreational

immunity statute that provides any incentive not to regu-

late more strictly—it is the public trust doctrine that obli-

gates the state in that regard.” We disagree; recreational

immunity creates a separate, additional incentive. The pub-

lic trust doctrine does not provide the public an unfettered

right to recreate on navigable waters. First, recreation is not

the only use that that doctrine protects, so it is possible that

the public’s interest in other uses of the water, such as com-

merce, could enable the state to restrict or even prohibit rec-

reation in some waters. Second, even if the state could not

prohibit recreational use, it could restrict it. As this court

observed in Kramer v. City of Lake Oswego, 365 Or 422, 446,

446 P3d 1 (2019), the public’s right to use public trust waters

“is not absolute.”

Holding, as plaintiff argues, that an owner cannot

“permit” recreational use of its land unless the owner can

prohibit that use would undermine the purpose of the rec-

reational immunity statutes. It would cause owners to take

steps to limit their liability by reducing the availability of

their lands for public recreation. The effect would not nec-

essarily be limited to public lands with navigable waters.

It could extend to other public lands that the public might

claim a right to use for recreation, such as lands dedicated

for use as parks. Even if the owners of those lands could

not prohibit public recreation on their lands, they could take

steps to restrict or discourage the use of their lands. For

Cite as 366 Or 452 (2020) 473

example, they could limit the times or areas available for

recreation, or they could decline to build or maintain roads

or other improvements. They could also choose to charge for

the use, because recreational immunity would not be avail-

able to serve as an incentive to hold the land open free of

charge. In addition, holding that an owner cannot avail itself

of recreational immunity could cause governmental entities

to decline to accept grants of land that would be dedicated

for a public recreational purpose. All of those effects would

undermine the legislature’s goal of making land available

free of charge for public recreation.

4. Statutory Interpretation Conclusion

Based on the text, context, and legislative history

of ORS 105.682, we conclude that an owner can “directly or

indirectly permit” the use of its land for the purposes of the

recreational immunity statutes, even if the public already

has a right to use the land for that purpose. The quoted

phrase itself indicates that the permission can take different

forms, which, in turn, indicates that an owner can “permit”

recreational use of its property if, among other alternatives,

it makes the use possible. That understanding of “permit”

is supported by the context of ORS 105.682, specifically, by

ORS 105.676, which establishes that the purpose of the rec-

reational immunity statutes is to encourage owners to make

their lands “available” for public recreation, which an owner

can do by making the land accessible or usable for recre-

ation.7 It is also supported by the legislative history of the

1995 recreational immunity statutes, which were intended,

among other things, to provide recreational immunity for

public landowners on whose land and waters (including nav-

igable waters) the public recreated. In addition, it is con-

sistent with the 1971 statutes, which provided recreational

immunity that was not contingent upon any conduct by the

owner. Finally, it is consistent with the legislature’s intent

to create an incentive for owners to increase the availability

of land for recreation.

7

We need not determine the full range of conduct that can constitute “per-

mitting.” It may be that the state “permits” recreational use of the lake simply by

tolerating the use or by declining to restrict it as much as possible, but we need

not decide those issues to resolve this case.

474 McCormick v. State Parks and Recreation Dept.

B. Application

Here, it is undisputed that the state made Lake

Billy Chinook accessible for recreation. Among other things,

the state developed and maintained day use areas and

facilities for recreating in the lake, including facilities for

boating and swimming. As plaintiff himself has stated, “the

only way to safely access the lake is to use one of the three

day use areas.” Through its actions, the state “permit[ted]”

public recreational use for the purposes of ORS 105.682.

Consequently, the Court of Appeals erred in reversing

the trial court’s judgment on the ground that it did, and

we remand this case to the Court of Appeals to address

plaintiff’s alternative argument, that the trial court erred

in denying him additional time for discovery regarding

whether the five-dollar fee he paid to enter the park was a

charge that precludes application of recreational immunity.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for further

proceedings.