Oregon Recreational Use Statute

Oregon Statutes

Title 10. PROPERTY RIGHTS AND TRANSACTIONS

Chapter 105. Property Rights

PUBLIC USE OF LANDS

Current through 2015 Regular Session, Acts 2 through 49, 51 through 187, 189 through 204, 206 through 217, 222, and 228 through 241

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way. 1

§ 105.672. Definitions for ORS 105.672 to 105.696. 3

§ 105.676. Public policy. 3

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products. 4

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights. 4

§ 105.699. Rules applicable to state lands. 5

§ 105.700. Prohibiting public access to private land; notice requirements; damages. 5

 

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way

(1)       As used in this section:

(a)             “Structures” means improvements in a trail, including, but not limited to, stairs and bridges, that are accessible by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.

(b)             “Unimproved right of way” means a platted or dedicated public right of way over which a street, road or highway has not been constructed to the standards and specifications of the city with jurisdiction over the public right of way and for which the city has not expressly accepted responsibility for maintenance.

(2)       A personal injury or property damage resulting from use of a trail that is in a public easement or in an unimproved right of way, or from use of structures in the public easement or unimproved right of way, by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance does not give rise to a private claim or right of action based on negligence against:

(a)             A city with a population of 500,000 or more;

(b)             The officers, employees or agents of a city with a population of 500,000 or more to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in a city with a population of 500,000 or more; or

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in a city with a population of 500,000 or more.

(3)       Notwithstanding the limit in subsection (2) of this section to a city with a population of 500,000 or more, by adoption of an ordinance or resolution, a city or county to which subsection (2) of this section does not apply may opt to limit liability in the manner established by subsection (2) of this section for:

(a)             The city or county that opts in by ordinance or resolution;

(b)             The officers, employees or agents of the city or county that opts in to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in the city or county that opts in by ordinance or resolution; and

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in the city or county that opts in.

(4)       The immunity granted by this section from a private claim or right of action based on negligence does not grant immunity from liability:

(a)             Except as provided in subsection (2)(b) or (3)(b) of this section, to a person that receives compensation for providing assistance, services or advice in relation to conduct that leads to a personal injury or property damage.

(b)             For personal injury or property damage resulting from gross negligence or from reckless, wanton or intentional misconduct.

(c) For an activity for which a person is strictly liable without regard to fault.

§ 105.672. Definitions for ORS 105.672 to 105.696

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.

(b)             Does 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.

(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.

(2)       “Harvest” has that meaning given in ORS 164.813.

(3)       “Land” includes all real property, whether publicly or privately owned.

(4)       “Owner” means the possessor of any interest in any land, such as the holder of a fee 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.

(5)       “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.

(6)       “Special forest products” has that meaning given in ORS 164.813.

(7)       “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.

Cite as ORS 105.672

History. 1995 c.456 §1; 2007 c. 372, §1; 2009 c. 532, §1; 2010 c. 52, § 1

§ 105.676. Public policy

The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, 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 protecting 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.

Cite as ORS 105.676

History. 1995 c.456 §2; 2009 c. 532, §3

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products

(1)       Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, 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 principal 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, woodcutting or the harvest of special forest products.

Cite as ORS 105.682

History. 1995 c.456 §3; 2009 c. 532, §4

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights

(1)       An owner of land who either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.

(2)       The fact that an owner of land allows the public to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products without posting, fencing or otherwise restricting use of the land does not raise a presumption that the landowner intended to dedicate or otherwise give over to the public the right to continued use of the land.

(3)       Nothing in this section shall be construed to diminish or divert any public right to use land for recreational purposes acquired by dedication, prescription, grant, custom or otherwise existing before October 5, 1973.

(4)       Nothing in this section shall be construed to diminish or divert any public right to use land for woodcutting acquired by dedication, prescription, grant, custom or otherwise existing before October 3, 1979.

Cite as ORS 105.692

History. 1995 c.456 §5; 2009 c. 532, §5

§ 105.699. Rules applicable to state lands

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

Cite as ORS 105.699

History. 1979 c.434 §8; 1995 c.456 §7

§ 105.700. Prohibiting public access to private land; notice requirements; damages

(1)             In addition to and not in lieu of any other damages that may be claimed, a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:

(a)             The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and

(b)             The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.

(2)       A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:

(a)             For land through which the public has no right of way, the landowner or agent must place a notice at each outer gate and normal point of access to the land, including both sides of a body of water that crosses the land wherever the body of water intersects an outer boundary line. The notice must be placed on a post, structure or natural object in the form of a sign or a blaze of paint. If a blaze of paint is used, it must consist of at least 50 square inches of fluorescent orange paint, except that when metal fence posts are used, approximately the top six inches of the fence post must be painted. If a sign is used, the sign:

(A)       Must be no smaller than eight inches in height and 11 inches in width;

(B)       Must contain the words “Closed to Entry” or words to that effect in letters no less than one inch in height; and

(C)       Must display the name, business address and phone number, if any, of the landowner or agent of the landowner.

(b)             For land through which or along which the public has an unfenced right of way by means of a public road, the landowner or agent must place:

(A)       A conspicuous sign no closer than 30 feet from the center line of the roadway where it enters the land, containing words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____ MILES”; or

(B)       A sign or blaze of paint, as described in paragraph (a) of this subsection, no closer than 30 feet from the center line of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders the land, except that a blaze of paint may not be placed on posts where the public road enters the land.

(3)       Nothing contained in this section prevents emergency or law enforcement vehicles from entering upon the posted land.

(4)       An award of liquidated damages under this section is not subject to ORS 31.725, 31.730 or 31.735.

(5)       Nothing in this section affects any other remedy, civil or criminal, that may be available for a trespass described in this section.

Cite as ORS 105.700

History. 1999 c.933 §1

 

 


Colorado Roadless Area rules are Open for Comment. Please Review, Read, Understand and Comment.

You are receiving this message because you are subscribed to the mailing list for the Colorado Roadless Area.Dear Interested Party:

The U.S. Department of Agriculture Forest Service (USDA FS) is initiating scoping for a Supplemental Draft Environmental Impact Statement (SDEIS) to reinstate the North Fork Coal Mining Area exception of the Colorado Roadless Rule. This specific exception allows for temporary road construction for coal exploration and/or coal-related surface activities in a 19,100-acre area defined as the North Fork Coal Mining Area. The FS will use the SDEIS to address specific deficiencies that were identified by the District Court of Colorado.

We invite your comments on the reinstatement of the exception within the North Fork Coal Mining Area. The scoping period closes 45 days after issuance of the notice of intent in the Federal Register. Comments should be limited to issues related to the proposed action, which is limited only to reinstating the North Fork Coal Mining Area exception of the Colorado Roadless Rule. The Forest Service is not seeking comments on the other portions of the Colorado Roadless Rule, roadless area boundary modifications, or other roadless areas in Colorado.

Due to the extensive public participation process that occurred with the development of the Colorado Roadless Rule, no public meetings are planned for this 45 day scoping effort. However, public meetings may be held in Denver and Paonia, Colorado after the release of the SDEIS and proposed rule.

Background

On July 3, 2012 (77 FR 39576), the USDA promulgated the Colorado Roadless Rule, a state-specific regulation for management of Colorado Roadless Areas. This Rule addressed State-specific concerns while conserving roadless area characteristics. One State-specific concern was continuing exploration and development of coal resources on the Grand Mesa, Uncompahgre, and Gunnison (GMUG) National Forests. The Colorado Roadless Rule addressed this by defining a 19,100-acre area as the North Fork Coal Mining Area, and developing an exception that allows temporary road construction for coal-related activities on within in that defined area.

In July 2013, High Country Conservation Advocates, WildEarth Guardians, and Sierra Club challenged the FS’s decision to consent to the Bureau of Land Management (BLM) modifying two existing coal leases, the BLM’s companion decision to modify the leases, BLM’s authorization of an exploration plan in the lease modification areas, and the North Fork Coal Mining Area exception of the Colorado Roadless Rule.

In June 2014, the District Court of Colorado found the environmental documents supporting the four decisions to be in violation of the National Environmental Policy Act (NEPA) due to analysis deficiencies. In September 2014, the District Court of Colorado vacated the lease modifications, the exploration plan, and the North Fork Coal Mining Area exception of the Colorado Roadless Rule (36 CFR 294.43(c)(1)(ix)).

Purpose and Need

The purpose and need for this SDEIS and is to provide management direction for conserving roadless characteristics within the area while addressing the State interest in facilitating exploration and development of the coal resources in the North Fork Coal Mining Area.

Proposed Action

The proposed action for the SDEIS is to reinstate the North Fork Coal Mining Area exception as written in (36 CFR 294.43(c)(1)(ix)). In addition, the Forest Service is proposing to administratively correct the North Fork Coal Mining Area boundary to remedy clerical errors.

Alternative to the Proposed Action

The other alternative being considered is the no-action alternative, which is the continuation of current management following the District Court ruling to vacate the North Fork Coal Mining Area exception. The Colorado Roadless Rule contains a severability clause (36 CFR 294.48(f)), which allows the rest of the Rule to remain in effect. Therefore, the District Court of Colorado’s ruling only changed management of Colorado Roadless Areas in the North Fork Coal Mining Area. Currently, the North Fork Coal Mining Area is being managed the same as other non-upper tier Colorado Roadless Areas. Valid existing coal leases would operate according the terms of their lease.

Decision to be Made

The Responsible Official will determine whether to reinstate the North Fork Coal Mining Area exception, or continue to manage the area without the exception. In addition, the Forest Service will determine if corrections to the North Fork Coal Mining Area boundary should be remedied to adjust for clerical errors.

How to Submit a Formal Comment

In order for a scoping comment to be considered and become part of the record for the SDEIS, it must be submitted and received within 45 days of the publication of the notice of intent in the Federal Register.

It would be helpful if comments:

· State each concern, criticism and/or suggestion as clearly and specifically as possible.

· Focus on the issue of reinstating the North Fork Coal Mining Area exception of the Colorado Roadless Rule. Please remember, this supplemental NEPA process will only address the Colorado Roadless Rule. The lease modifications and exploration plan authorization will be addressed in future analysis efforts if needed.

Scoping comments can be submitted electronically through:

1. Web: https://cara.ecosystem-management.org/Public/CommentInput?Project=46470

2. Mail: Colorado Roadless Rule

740 Simms Street,

Golden, CO 80401

3. Fax: 303-275-5134

All comments, including names and addresses, are placed in the record and are available for public inspection and copying.

We anticipate completing and publishing a final rule and SDEIS in Spring 2016.

Thank you for your interest in the management of your national forests.

Public Scoping LTR.pdf

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Public+Scoping+LTR.pdf


Saving yourself while sacrificing the rest of an industry. Is anyone going to buy you a drink for winning when you just made it easier to sue them?

In the US Forest Service response to the lawsuit to open snowboarding at Alta, allegations were made by the USFS that are going to come back and haunt all other ski areas in states with weak skier safety statutes.

Alta is one of three ski areas that do not allow snowboarding. Deer Valley and Mad River Glen are the other two. Alta and the US Forest Service were sued last year by a group of snowboarders wanting to open Alta to snowboarding. The lawsuit was based on Federal constitutional law, and the legal arguments have little relevance here. Except the USFS defense to the lawsuit placed into the record some statements that can create havoc in lawsuits against other ski areas.

A ski area operating on USFS land must file an Operation Plan. If the resort is open year round the plan may have two plans, a Winter Operation Plan and a Summer Operation Plan. The USFS in referencing the Alta’s Winter Operation plan quotes it stating:

Additionally, the Operating Plan provides that Alta reserves the right to exclude those whose “skiing device” is deemed to create an “unnecessary risk,” causes “undue damage to the quality of the snow,” and “is not consistent with [Alta’s] business management decisions.”

In another section of the USFS motion they quote the plan as:

Alta Ski Area reserves the right to exclude any type of skiing device that they deem creates an unnecessary risk to other skiers and/or the user of the device, or any device that they deem causes undue damages to the quality of the snow, or is not consistent with their business management decisions.

So snowboards have been labeled by a ski area and the USFS as an “unnecessary risk.” That risk in the second paragraph applies to other skiers on the mountain and the user. Another issue I find almost comical is the argument that snowboarders have a blind spot.

First, snowboarders go down the mountain facing sideways, whereas skiers go down the mountain facing forward and directly downhill. ECF No. 2, ¶ 87. A snowboarder’s side-ways orientation creates a blind-spot that they must turn into; skiers do not turn into their blind spot.

But so do skiers, and walkers, and people on an inner tube going down the hill. The blind spot is directly behind your head (your eyes) were you can’t see. That blind spot is not based on what is on your feet, but is based on your orientation to the other people.  A snowboarder going downhill has an identical blind spot to a skier crossing the hill. Neither can see behind them.

The issue is where a ski area can be sued for injuries of a skier; any injuries the skier alleges were caused by the snowboarder are going to be buttressed by the USFS motion and Alta’s Winter Operation Plan. Maybe even if injuries they do to themselves?

Are these issues critical to other ski areas? Hopefully not. However, they may be thrown up in other cases and can provide testimony that can influence a jury.

What do you think? Leave a comment.

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OK, this one just sent me over the edge. The USFS ticketed a rescuer for not getting out of the way. The rescuer had rappelled down and stabilized an injured climber on a ledge.

News Report and Video of the Rescue

Watch the video or read the transcript then go make a comment! I would also suggest you contact your congressman and let them know the actions of the USFS are way out of line.

Read the transcript at the website Climber involved in rescue issued citation

On top of that, the Good Samaritan rescuer could have been liable to the injured climber if he had followed the instructions and abandoned the injured climber. As many of you know, once you start a rescue or first aid you must continue until relieved by a higher medical authority.

Besides, how is this going to be portrayed with the next rescuer? Will people be willing to help if they may face a ticket?

The biggest wake up should be to the US Forest Service. Most rescue plans for federal lands, USFS, BLM or NPS are dependent upon Good Samaritans. In many plans, the plans would not be possible without the involvement of persons standing by.

The National Forests in North Carolina contact info can be located here and is:         Supervisor’s Office

160 Zillicoa St. Suite A

Asheville, NC 28801

828-257-4200828-257-4200

You can email them here. Tell them you only know what you say on the newscast but their actions can have chilling effect on future rescues. Also, their actions might have put the victim at risk and subject the rescuer to liability.

What do you think? Leave a comment.

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What is the basis for the snowboarder’s lawsuit against ALTA & the USFS? Number 1 question I’ve been asked the last 2 weeks, so I asked

I met the attorney representing the four snowboarders and two of the plaintiff’s in their suit to open ALTA to snowboarding. They are committed and not just 20 something losers in Colorado to check out the lawns…..

Here was the statement on how and why I got from their attorney Jonathan R. Schofield.

Although Alta was one of the first resorts to allow snowboarding, Alta began banning snowboarders from its public land in the 1980s with the approval of the U.S. Forest Service.  Meanwhile, Alta invites “skiers” of all ages and ability levels on this same land regardless of, among other things, the size, shape, or type of “ski” actually used.  For instance, a variety of skis, mono-skis, and even tele-boards are all allowed at Alta, even though they are nearly identical to snowboards in many respects.  On its face, Alta’s no-snowboarding policy treats snowboarders differently than skiers by excluding snowboarders from equal access to public land.

The Constitution guarantees fairness of the laws, and the Equal Protection Clause of the Fourteenth Amendment guarantees that similarly-situated persons will be treated alike unless governmental discrimination is, at a minimum, rationally related to a legitimate interest.  Because Alta operates under a government permit on public land and the Forest Service approves Alta’s actions, Alta and the Forest Service are government actors and their conduct must be lawful under the Equal Protection Clause.  Arguably, Alta has a legitimate interest in safely and effectively operating a ski resort under its permit.  However, as alleged in the lawsuit, there is no rational relationship between Alta’s snowboarding ban and Alta’s interest in operating its resort.  The lawsuit further alleges that the reasons offered to justify the snowboarding ban are mere pretext for animus (dislike) of the type of people believed to be “snowboarders.”  Animus is inherently irrational and can never justify governmental discrimination.

The lawsuit is available in its entirety by clicking here.

If you want to stay on top of the suit, the group has a non-profit called Wasatch Equality, with a website here.

I don’t know if they are going to win, but I bought a t-shirt. J

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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Rocky Mountain Field Institute is the recipient of TWO Forest Service Chief Awards

Congratulations RMFI!

US Forest Service

Not one, but TWO Forest Service Chief Awards

RMFI is the recipient of TWO US Forest Service Chief Awards this year, the highest award recognition within the US Forest Service. WOW! One is in the Promoting Recreation category recognizing our decades-long effort to create a sustainable recreation framework on 14ers in the Sangre Cristo Mountain Range, including Crestone Needle, Crestone Peak, Humboldt Peak, and Blanca Peak.

The second category is for “Meeting America’s Needs” and recognizes the Rocky Mountain Watershed Protection Partnership and its work restoring the Hayman Burn. This partnership includes myriad partners including Forest Service, National Forest Foundation, Coalition for the Upper South Platte, RMFI, Denver Water, Aurora Water, Vail Associates, Mile High Youth Corps, and others.

RMFI executive director Rebecca Jewett will be traveling to Washington DC in December to accept the awards and promote the importance of land conservation and volunteer stewardship.

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Fines issued after fatality for failing to have proper permits on USFS land

The Aspen Daily News is reporting that three people have been cited in conjunction with the death of Wallace Westfeldt. The citations are for filming on US Forest Service land without the proper film permits. The Story, Three cited in fatal film shootstates the fines will be $500 each.

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The citations came after the investigation into the death of Westfeldt. Westfeldt died while filming in Tonar Bowl outside of Aspen Highlands ski area. Tonar died after jumping off a cliff for a film shoot for the Aspen Ski Company. See Snowboarder killed in Highlands backcountry.

Two stories in the Aspen Daily News hinted that the Aspen Ski Company knew they had violated the law. See: SkiCo vows to ‘more carefully scrutinize permit compliance’ and Fatal Tonar shoot may have broke law.

All commercials activities that occur on US Forest Service lands (as well as NPS and BLM lands) must be done with a commercial permit. The permits are issued to make sure the land is not destroyed, the visitor experience is not altered and that no risk is posed for a visitor. The USFS also receives income from issuing the permits.

Information about Special Use Permits can be found at the US Forest Special Use website. Information on filming on Forest Service lands can be found at http://www.fs.fed.us/specialuses/special_film.shtml.

There is a difference between taking a photograph or movie for your personal use or to bore your friends and neighbors after you get home. If you are going to use the photographs or video for commercial purposes, to promote a commercial venture or business you must have a permit from all federal land management agencies.

The three men can either pay the fine or within thirty days contest the charges in Federal Court. The charges are a Class B Misdemeanor.

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