Moss v. United States, 895 F.3d 1091

Albert Pike Recreation Area (Ouachita National Forest) contains Loop D, a developed campsite area opened in 2004 after a Forest Service renovation; Loop D sites charged $16 for overnight sites with water/electric hookups.
Preproject environmental assessment involved a soil scientist (Luckow) who concluded much of Loop D lay in the 100-year floodplain and recommended primitive sites and signage, and a hydrologist (Clingenpeel) who gave a quick on-site estimate that minimized flood concerns.
The Forest Service approved developed campsites in Loop D; no flood warning signs were posted. Limited prior minor flooding incidents had occurred but no serious injuries before 2010.
On June 11, 2010 a catastrophic flash flood (described as exceeding a 500-year event) struck Albert Pike, killing 20 campers (17 in Loop D). Plaintiffs sued the United States under the FTCA alleging negligent/malicious development and failure to warn.
The United States moved to dismiss for lack of subject-matter jurisdiction, asserting it was entitled to immunity under the Arkansas Recreational Use Statute (ARUS); district court sought and obtained Arkansas Supreme Court certification on the meaning of "malicious" under ARUS.
The district court granted dismissal after limited discovery; the Eighth Circuit affirmed, holding a private landowner would be immune under ARUS and so FTCA jurisdiction is lacking.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether campsite fee ($16) is an ARUS "admission" charge that removes immunity	Fee for campsite use is the charge for the recreational activity, so ARUS immunity should not apply	Fee is for campsite services post-entry (water/electric); admission means fee to enter the land, not service/use fees	Held: Fee is not an "admission"; ARUS immunity not displaced by Loop D fees
Whether plaintiffs' claims fall within ARUS exception for "malicious failure to guard or warn" regarding an ultra-hazardous activity	The placement and development of Loop D in a floodplain with no warnings/support was malicious or reckless and falls within the exception	The relevant activity is common recreational camping in a 100-year floodplain, which is "matter of common usage," so ARUS immunity applies unless owner actually knew of an ultra-hazardous danger	Held: Defined activity as "camping in a 100-year floodplain"; this is common usage, not ultra-hazardous; ARUS immunity applies (no FTCA jurisdiction)
Standard of review for factual jurisdictional attack under Rule 12(b)(1)	Plaintiffs: district court should have applied summary-judgment standard because jurisdiction intertwines with merits	United States: dismissal appropriate under either factual or summary-judgment standard	Held: Court did not decide which standard was required because dismissal is correct even under summary-judgment review

FDIC v. Meyer, 510 U.S. 471 (federal FTCA jurisdiction requires that U.S. liability mirror that of a private person)
Wilson v. United States, 989 F.2d 953 (8th Cir. 1993) (recreational-use statute interpretation and when fees affect immunity)
Roeder v. United States, 432 S.W.3d 627 (Ark. 2014) (Arkansas Supreme Court construction of "malicious" under ARUS)
Mangrum v. Pigue, 198 S.W.3d 496 (Ark. 2004) (definition and elements of "ultra-hazardous" activity under Arkansas law)
Carr v. Nance, 370 S.W.3d 826 (Ark. 2010) (clarifying level of generality for defining ultra-hazardous activities under state law)