Rulemaking for Colorado Roadless Areas SEIS Comment Period Extended

You are subscribed to Rulemaking for Colorado Roadless Areas Supplemental Environmental Impact Statement. This information has recently been updated, and is now available.

USDA granted an 11-day extension of the comment period in response for adequate time to review documents and provide input on the proposed rule and the supplemental draft EIS over the holiday season. Notice will be published in the Federal Register.

Your comments are requested by 1/15/2016.

Comments on the SDEIS can be submitted electronically through:

  1. Web: go.usa.gov/3JQwJ
  2. Mail:

Colorado Roadless Rule

740 Simms Street

Golden, CO 80401

  1. Fax: 303-275-5134

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20151221+CRR_Exten_NR.pdf


Outreach Notice – Humboldt-Toiyabe National Forest

Outreach Notice – Humboldt-Toiyabe National Forest

Natural Resource Specialist (Recreation/Wilderness)

GS-0401/0101–09/11
This is a permanent position with a duty station of Ely, Nevada

Duties:

The Ely District Recreation Specialist provides expertise and advice in the administration of recreation program and projects, including developed and dispersed recreation, wilderness and recreation special uses. The Recreation Specialist is responsible for managing and maintaining recreation facilities; compiling and developing information for the recreation management database; providing expertise and advice on current recreation use, type and standards; and participating as a specialist in planning and implementation of projects on the District. The position reviews proposals for new recreation facilities or activities and recommends action; advises on recreation management plans; and coordinates activities between units and among other specialists to ensure consistency in program emphasis, development and between resource units.

The Recreation Specialist also provides input into the Forest-wide recreation budget and manages the District recreation budget. The position develops proposed natural resource management activities and coordinates and/or implements these approved management activities. The Recreation Specialist is responsible for environmental analysis reviews, reports, evaluation and preparation of environmental impact statements. The incumbent also seeks and establishes mutual working relationships with outside entities, such as Federal, State, Tribal and local agencies who partner with the Forest Service, as well as non-profit entities and recreation interest groups.

This position is zoned with two other ranger districts on the Forest, and the incumbent will have responsibility for the recreation program over nearly 3.2 million acres, including 12 wilderness areas, numerous campgrounds and picnic sites, and many miles of motorized and non-motorized trails. Duties of the position include 20% or less time supervising.

The Humboldt-Toiyabe (H-T) National Forest:

At over 6.3 million acres, the H-T is the largest National Forest in the contiguous United States. The Forest spans the entire state of Nevada, with an additional one million acres of land in the eastern part of California, along the Eastern Sierra Front.

Ely Ranger District:

The Ely Ranger District is one of the original National Forests in Nevada, before being incorporated as a Ranger District. The District covers about 1 million acres with elevations ranging from valley floors around 5000 feet to above tree line, over 12,000 feet. The District has about 20 permanent employees and about 15 seasonal employees. The District hosts a multitude of treasures to explore related to outdoor activities.

For additional information about the forest: http://www.fs.usda.gov/htnf/

Contact Information:

For more information about the position, the community, or assistance working through the application process please contact:

Martina Barnes
Acting District Ranger
Ely Ranger District
(775) 289-5100
(801) 757-7757 (cell)
martinabarnes

If interested, please request an outreach interest form and email with your resume to Martina Barnes by August 14, 2015.

Once a vacancy announcement has been created, a notification will be sent to those that expressed interest as well as be posted in the outreach database.

The vacancy announcement for this position will be posted on the U.S. Government’s official website for employment opportunities, www.usajobs.gov


Oregon Recreational Use Statute used by US Forest Service to stop claim by injured snowmobiler

Case does an excellent job of explaining the requirements that must be met to support a motion to dismiss.

Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

State: Oregon, United States District Court for the District of Oregon

Plaintiff: Daniel T. Stringer

Defendant: US Forest Service, United States Department of Agriculture,

Plaintiff Claims:

Defendant Defenses: Recreational Use Statute

Holding: For the Defendant

Year: 2014

The plaintiff was with a group of people who rented snowmobiles and then drove them to the Deschutes National Forest. The plaintiff started to go snowmobiling with a group. On their way there the plaintiff took off across a field that was not with the other members of the group.

The plaintiff’s snowmobile went over a 15’ embankment where he suffered injuries.

The plaintiff sued the defendant US Forest Service for his injuries. This is the motion to dismiss the plaintiff’s complaint because of the Oregon Recreational Use Statute.

Analysis: making sense of the law based on these facts.

The court started by explaining in detail the steps necessary to dismiss a complaint on a Rule 12(b)(6) Motion to Dismiss.

To begin with a “complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” A claim is plausible when “the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct.” The factual allegations must present more than the “the mere possibility of misconduct.”

While considering a motion to dismiss, the Court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.”

Consequently the court can dismiss a claim when the court finds the facts, even if pleading more than simple claim of injury do not support the necessary steps to prove the plaintiff’s claim. The plaintiff’s complaint requires more than mere allegations.

The first issue was whether the United States could use a state statute as a defense to a claim.

The liability of the United States is determined “in the same manner and to the same extent as a private individual in like circumstances.” Because plaintiff’s accident occurred in Oregon, this action is governed by Oregon law.

The court then looked at the Oregon Recreational Use Statute, ORS § 105.682. Like most recreational use statutes, a landowner is not liable for injuries if they do not charge for the use of their land.

The plaintiff argued that because the defendant charged for use of the land at other locations in the Deschutes Forest the defendant, Forest Service could not rely on the recreational use statute. Here the US Forest Service charged to use the land to ski and to camp. However, the plaintiff was not camping or skiing, nor whether they are engaging in an activity at the location where fees are charged to ski or camp.

A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.

There must be some relationship between the fee charged and the activity which the plaintiff engaged in which caused his injury.

So Now What?

This case lays out an easy analysis to understand the requirements to win a motion to dismiss. Motions to dismiss are usually filed prior to the answer of the defendant being filed and are done so when the plaintiff’s claim fails in all respects to present any evidence which the court can find to support the claims of the plaintiff.

If the motion to dismiss is not granted the defendant is instructed to file their answer and discovery begins. After or during discovery, one or more of the parties can file a motion for summary judgment. A motion for summary judgment is normally how a case is dismissed prior to trial. Motions to dismiss are rarely granted.

In this case, the next motion would have probably been based on the fact the plaintiff assumed the risk by taking off, off the trail when he crashed.

This is also instructional in showing the defendant United States through any of its land-management agencies, Bureau of Land Management, National Park Service, US Forest Service, Bureau of Reclamation or US Fish & Wildlife Service.

What do you think? Leave a comment.

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,  Recreational Use Statute, Recreational Use, Snowmobiling, Deschutes, Deschutes National Forest, US Forest Service, USFS, Motion to Dismiss,

 


Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

Daniel T. Stringer, Plaintiff, v. United States Department of Agriculture (Forest Service), Defendant.

Civ. No. 6:13-cv-1902-MC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

2014 U.S. Dist. LEXIS 150168

October 21, 2014, Decided

October 21, 2014, Filed

COUNSEL: [*1] For Daniel T Stringer, Plaintiff: J. Randolph Pickett, LEAD ATTORNEY, Pickett Dummigan Rhodes, LLP, Portland, OR; Matthew D. Kaplan, Matthew D. Kaplan, LLC, Portland, OR; R. Brendan Dummigan, Pickett Dummigan Rhodes, LLP, Portland, OR; Kristen C. West, Pickett Dummigan, LLC, Portland, OR.

For United States Department of Agriculture Forest Service, Defendant: James E. Cox, Jr., LEAD ATTORNEY, U.S. Attorney’s Office, Portland, OR.

JUDGES: Michael J. McShane, United States District Judge.

OPINION BY: Michael J. McShane

OPINION

OPINION AND ORDER

MCSHANE, Judge:

Plaintiff Daniel Stringer was injured while snowmobiling in the Deschutes National Forest. The United States Forest Service (Forest Service), which manages the Deschutes National Forest, allows members of the public to snowmobile on approximately 600 miles of trail within the forest free of charge.

The Court is asked to consider whether the Forest Service waived sovereign immunity under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. Because Stringer neither paid a “charge” nor engaged or intended to engage in an activity subject to a “charge,” this Court finds that the Forest Service did not waive its immunity. Thus, defendant’s motion to dismiss, ECF No. 10, is GRANTED. [*2]

PROCEDURAL AND FACTUAL BACKGROUND

This action arises out of a snowmobile accident occurring in the Deschutes National Forest. On March 24, 2012, Stringer, along with five companions, rented five snowmobiles at a rental facility in Bend, Oregon. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1. After receiving a 15-minute training tutorial, the group traveled to Wanoga Sno-Park. Decl. of James E. Cox, Jr. 2, ECF No. 13-3. Wanoga Sno-Park, a snowmobiling park located within the Deschutes National Forest between Bend and Mount Bachelor, is open to the public free of charge.1 See Decl. of Kevin W. Larkin 2-3, 5 ECF No. 11.

1 The state of Oregon does charge a $5 vehicle parking fee to park in the Wanoga Sno-Park parking lot. See Compl. 2-3, ECF No. 1; OREGON DEP’T OF TRANSP.,OREGON.GOV: SNO-PARK PARKING PERMITS, http://www.oregon.gov/ODOT/DMV/pages/vehicle/sno_park_permits.aspx(last visited Oct. 20, 2014).

At approximately 10 a.m., Stringer and his group departed on snowmobile trail #5 heading west toward Elk Lake Resort. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer operated a two person sled accompanied by his fiancee, Danielle McBurnett. Compl. 3, ECF No. 1. Between 11:30 a.m. and 11:45 a.m., the group arrived at Elk Lake Resort. Decl. of [*3] James E. Cox, Jr. 5, ECF No. 13-1. After a brief break, the group decided to postpone lunch and return to Wanoga Sno-Park on snowmobile trail #5 heading east. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1.

At approximately 12:50 p.m., the group approached a bridge at Falls Creek. See Decl. of James E. Cox, Jr. 1, ECF No. 13-1. Stringer, accompanied by McBurnett, sped up and pulled away from the group. Id. at 5. As he pulled away, Stringer left the trail and cut across an open meadow. Compl. 3, ECF No. 1. Realizing that the meadow led to an embankment of Falls Creek, Jessi Davis, a member of the snowmobiling group, sped up in an unsuccessful attempt to warn Stringer. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer’s snowmobile launched over the creek and crashed into the far embankment head-on. Compl. 3, ECF No. 1. Stringer and McBurnett fell approximately 15 feet to the bottom of the ravine; resulting in extensive injuries. Id. at 3, 5. Stringer now seeks damages under the FTCA. Id. at 6.

STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim is plausible on its face when [*4] the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.

While considering a motion to dismiss, the Court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations and internal quotation marks omitted).

DISCUSSION

Plaintiff, in reliance on Coleman v. Oregon Parks & Recreation Dep’t, 347 Or. 94, 217 P.3d 651 (2009), contends that defendant waived sovereign immunity under the FTCA by making a “charge” under ORS §§ 105.672(1)(a), 105.688(3). In response, defendant contests plaintiff’s interpretation of Coleman and argues that a charge was not made, and even if made, Wanoga Sno-Park is specific, separate, and distinct from any land that made such a charge.

The FTCA waives the sovereign immunity of the United States for claims based on the negligence of United States employees. 28 U.S.C. § 1346(b)(1); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995). The liability of the United [*5] States is determined “in the same manner and to the same extent as a private individual in like circumstances.” 28 U.S.C. § 2674. Because plaintiff’s accident occurred in Oregon, this action is governed by Oregon law. 28 U.S.C. § 1346(b)(1); Yanez, 63 F.3d at 872.

As stated in ORS § 105.676, “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 . . . by limiting their liability toward persons entering thereon for such purposes . . . .” ORS § 105.6822 advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.” Coleman, 347 Or. at 97.

2 ORS § 105.682 provides:

(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 [*6] 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.

ORS § 105.688, however, limits the immunity provided in ORS § 105.682. ORS § 105.688 provides, in relevant part:

(3) Except as provided in subsection[] (4) . . . of this section, the immunities provided . . . do not apply if the owner makes any charge3 for permission to use the land for recreational purposes . . . .

(4) If the owner charges for permission to use the owner’s land for one or more specific recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section,4 the immunities . . .apply to any use of the land other than the activities for which the charge is imposed. If the owner charges for permission to use a specified part of the owner’s land for recreational [*7] purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities . . . apply to the remainder of the owner’s land.

3 ORS § 105.672(1)(a) defines “Charge” as “the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.” This definition excludes “the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.” ORS § 105.672(1)(c).

4 ORS § 105.688(8) provides:

(8) Notices . . . may be given by posting, as part of a receipt, or by such other means as may be reasonably calculated to apprise a person of:

(a) The limited uses of the land for which the charge is made, and the immunities provided under ORS 105.682 for other uses of the land; or

(b) The portion of the land the use of which is subject to the charge, and the immunities provided under ORS 105.682 for the remainder of the land.

Plaintiff contends that, under Coleman, defendant waived immunity by charging “a fee for any use of the land.” P1.’s Resp. to Def.’s Mot. to Dismiss 5, ECF No. 15 (emphasis in original). Specifically, plaintiff argues that because defendant charged third-parties5 a camping fee or a ski-lift fee within the Deschutes National Forest, defendant [*8] waived recreational immunity as to plaintiff’s injury occurring in that same forest. Id. at 5-8. This Court looks to Coleman.

5 Neither plaintiff nor any member of his snowmobiling group paid a camping fee or purchased a ski-lift ticket.

In Coleman, plaintiffs Bradley and Bonnie Coleman arrived at William M. Tugman State Park (Tugman Park) intending to camp overnight. 347 Or. at 96; Coleman v. Oregon Parks & Recreation Dep’t (Coleman App. Ct.), 221 Or. App. 484, 486, 190 P.3d 487 (2008), rev’d, 347 Or. 94, 217 P.3d 651 (2009). At that time, Tugman Park charged a fee for campsite and gazebo rental, but was otherwise open to the public free of charge. Coleman, 347 Or. at 96. Bradley, having arrived at the campsite, decided to explore the park with a friend on their mountain bikes. Coleman, 347 Or. at 96; Coleman App. Ct., 221 Or. App. at 486. While on a designated trail, Bradley rode his bike off a connected bridge, which lacked a ramp on one side. Coleman App. Ct., 221 Or. App. at 486.

The Supreme Court, in a four-to-three decision, denied defendant’s motion for summary judgment and concluded that defendant “did not establish that it made ‘no charge for permission to use’ Tugman Park.” Coleman, 347 Or. at 104. The Court further provided:

To be entitled to immunity, the landowner must make no charge for permission to use the land. If the landowner makes a charge for permission to use the its land, immunity does not apply, even if the injured person is not engaged in the use that was [*9] the basis for the charge at the time of injury. So, as in this case, if the landowner makes a charge to use a park for camping, the landowner forfeits its immunity, even if a camper is injured while biking.

Id. at 102-103 (emphasis in original). Plaintiff, in reliance on an excerpt from this quoted material, seeks to extend Coleman to the current action. This Court declines to do so.

The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. Decl. of Kevin W. Larkin 2, ECF No. 11. A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.6 See Hannon v. United States, 801 F. Supp. 323, 327 (E.D. Cal. 1992) (“The fact that somewhere else in the Inyo National Forest someone other than the plaintiff is charged for services does not negate the immunity defense throughout the Forest.”). As articulated in Coleman, there must be some requisite relationship between the fee charged and the injured plaintiff. 347 Or. at 103-104 (“As campers, plaintiffs were entitled to use all of Tugman Park, including its bike trials . . . . The state also did not establish that [*10] as a camper, plaintiffs’ use was limited to the piece of land associated with the charge.”) (emphasis added); see also Colin v. United States, No. C-99-5045 EDL, 2001 WL 776998, at *12 (N.D. Cal. May 17, 2001) (awarding summary judgment to defendant where “Plaintiff and his companions paid no fee to obtain access to the lake, either directly or indirectly”).7

6 The Coleman Court was presented with an analogous hypothetical:

Why, queries the state, would the legislature preclude recreational immunity for the owner of a 100-acre property that charged to use an equestrian riding center located on 10 acres of that land, but made 90 acres available to the public for free, when the plaintiff was injured hiking on the separate and distinct 90 acres?

347 Or. at 103. The Court declined to address the hypothetical, but indicated that “the land” as used in ORS § 105.688(2)(a) (amended 2009 and 2010), “may refer to a specific, separate, and distinct piece of real property.” Id.

7 In Colin, plaintiff was injured while diving into Lake Sonoma. 2001 WL 776998, at *1. At that time, the United States charged fees for overnight camping and boat launching. Id. at *11. Plaintiff, however, only engaged in activities that were free of charge: “day use of the swimming and picnic facilities.” [*11] Id.

Stringer, unlike the Colemans, lacked this requisite relationship. Stringer was neither a camper nor a skier;8, he was a snowmobiler. As a snowmobiler, Stringer engaged in an activity not subject to a “charge” under ORS § 105.672(1)(a). This conclusion is further supported by Justice Balmer’s dissenting opinion. In that opinion, Justice Balmer explained:

[U]nder the majority’s reasoning, if a person decided to rent a campsite (or to rent the gazebo), the state may not assert recreational immunity as to injuries suffered by that person while riding on a bike trial, but the state may assert such immunity as to a person who does not rent a campsite and who incurs an identical injury in an identical place on the land.

Coleman, 347 Or. at 109 (Balmer, J., dissenting). Stringer, like the dissent’s hypothetical non-camping bicyclist, is subject to recreational immunity. Had Stringer been either a camper or a skier, the state may have waived recreational immunity under ORS § 105.688. However, that factual scenario is not before this Court.

8 This Court reserves judgment as to whether either the camping fee or ski-lift fee qualify as “charges” under ORS § 105.672(1)(a).

CONCLUSION

For these reasons, defendant’s motion to dismiss, ECF No. 10, is GRANTED.

IT IS SO ORDERED.

DATED [*12] this 21st day of October, 2014.

/s/ Michael J. McShane

Michael J. McShane

United States District Judge


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

 

 


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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If a tree falls in the woods, is there someone around to start a lawsuit?

It’s the woods, where do you think, you are?

English: Kalmiopsis Wilderness in the Rogue Ri...

English: Kalmiopsis Wilderness in the Rogue River-Siskiyou National Forest of southwest Oregon. (Photo credit: Wikipedia)

Another person has filed a lawsuit claiming injuries from a tree that fell on them. In this case, the person was driving through the Rogue River National Forest when a tree fell and hit his truck.

He is suing the US Forest Service and a lumber company that was supposed to cut the tree down. By failing to cut the tree down, the USFS and lumber company are allegedly liable.

Trees fall over. If you don’t want to get hit by a tree, stay out of the woods.

Jack London wrote about trees falling in the woods, and I suspect that trees have been falling a lot longer than that, and they will continue to fall in the future. When a tall thing no longer has support, it falls over. If you don’t believe this, go to any bar where tall people drink excessively.

Please fight this one and do not settle. Unless the US Forest service and the lumber company fight this lawsuit, eventually the woods will be closed or woods will be a field. The government does not like paying out money, and it will be easy to close anyplace that has any commercial activity in it rather than deal with idiots who claim the government should have made the place safe.

See Oregon man sues over tree that fell and hurt him.

Fallen Tree

Fallen Tree (Photo credit: cliff1066™)

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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