DANA LUDWIG, as Independent Administrator of the Estate of BRENT LUDWIG, deceased, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
No. 21-1205
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 26, 2021 — DECIDED DECEMBER 27, 2021
Before FLAUM, ST. EVE, and KIRSCH, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-02943 — Gary Feinerman, Judge.
KIRSCH,
I
This case arises from the August 2014 accidental death of Brent Ludwig, who drowned while hiking to Ramona Falls, a waterfall on the Sandy River in the Mount Hood Wilderness in Oregon. The Wilderness, which covers nearly 65,000 acres, is federal lаnd administered by the United States Forest Service. The Forest Service provides parking areas and trail access to the Wilderness‘s 25 trailheads, including the Ramona Falls Trailhead.
On the day of the hike, Nathan Johnson, a member of the Ludwig hiking group, purсhased two passes from the ranger station for the group‘s two vehicles. After parking, the group hiked to the falls, which took them across the Sandy River. A 20-foot-long wooden seasonal bridge, put there every spring by the Forest Service from 1995 to 2014, spanned the river. Once at the falls, the group ate lunch as it started to rain. They finished lunch and began hiking back, once again crossing the Sandy River bridge. While Johnson and Brent Ludwig—who was last in line—were crossing the bridge, a logjam 100 feet upstream ruptured, sending а five to eight foot tall wave of water and debris at the bridge. Johnson and Brent were thrown into the river, and Brent tragically drowned.
In 2016, Dana Ludwig brought a negligence and wrongful death action against the United States under the Federal Tort Claims Act (FTCA),
The Federal Lands Recreation Enhancement Act (FLREA) limits the Forest Service‘s ability to charge fees for federal recreational lands and waters.
The United States, as owner of the land in Oregon where Brent Ludwig drowned, argued that its $5 pass qualified as a parking fee under Oregon law, thereby granting the United States immunity from Dana Ludwig‘s suit. The district court agreed, concluding that the function of the pass was to give users the privilege to park on Forest Sеrvice land based on the following undisputed facts. The National Forest Recreation Pass is sold for $5 per vehicle per day. The pass tells users to “DISPLAY IN VEHICLE.” On its back, the pass states: “The Recreation Day Pass is a vehicle pass honored at day-use sites in Oregon and Washington where ‘Recreation Pass Required’ signs are posted.” And the Forest Service does not require a pass or collect fees from hikers, bikers, and horseback riders who do not park a vehicle in the parking lot.
The district court granted the United States’ motion for summary judgment, and Dana Ludwig appealed. The central question on appeal is whether the $5 pass can constitute a parking fee under Oregon law if the pass is not solely for parking but is sold оnly if other amenities are available.
II
We review de novo a district court‘s grant of summary judgment, viewing the facts in the light most favorable to the non-moving party. FKFJ, Inc. v. Vill. of Worth, 11 F.4th 574, 584 (7th Cir. 2021). Summary judgment is proper when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Id. Here, there is agreement on the material facts. The dispute is a legal one of statutory application.
The FTCA is a limited waiver of the United States’ sovereign immunity and imposes liability “under circumstances where the United Statеs, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
When applying state law, we look to the state‘s highest court to determine how it would rule. Rodas v. Seidlin, 656 F.3d 610, 626 (7th Cir. 2011). But where, as here, the highest court has not spoken
The district court correctly invoked and applied an Oregon appellate court case, McCormick v. State ex rel. Or. State Parks & Recreation Dep‘t, 308 Or. App. 220 (2020). McCormick dealt with a $5 fee under the Oregon recreational use statutory scheme, and the same issue was before that court—if the $5 fee in question was a parking fee, then immunity applied. Id. at 222–23. The Oregon Court of Appeals held that the ordinary meaning of
Ludwig argues that the National Forest Recreation Pass is not solely for parking but is bundled with other amenities such as restroom facilities and trail markers, and therefore, the Forest Service dоes not have immunity under Oregon law. Ludwig cites the FLREA to argue that the Forest Service is prohibited from charging a fee solely for parking,
Ludwig‘s conclusion depends upon the faulty premise that a fee cannot be a parking fee under Oregon law if the fee includes the availability of other amenities. We do not think a parking fee under Oregon law is so exclusive. Oregon law provides that a parking fee is a fee for the privilege of pаrking but is otherwise silent on the presence or absence of attendant amenities. The question under Oregon law is “what [was] the fee charged for, that is, what privilege [did] the fee payer obtain[] in exchange for paying the fee[?]” McCormick, 308 Or. App. at 223. Nothing suggests that thе privilege to park need be exclusive of other amenities to qualify as a parking fee under Oregon law. This understanding of Oregon law accords with reality; parking fees are accompanied by amenities all the time. Purchasing a pаss for a parking garage that provides security and restrooms grants the purchaser the privilege of parking and the privilege of accessing the garage‘s accompanying amenities. But the fee remains a parking fee. The presеnce of other amenities does not undermine the purpose of the fee.
And so here. Under Oregon law, the Forest Service‘s $5 pass was a fee for the privilege of parking. The undisputed evidence shows that anyone parking a vehicle at the Ramona Falls Trailhead lot had to purchase a pass from the ranger‘s station or online. The pass was a “vehicle pass” sold per vehicle, not per person, and was required to be displayed in the parked vehicle. Critically, hikers, bikers, and horseback riders did not need a pass—the pass was for the privilege of parking a vehicle at the trailhead. That the Forest Service also satisfied its own statutory requirements by providing all the required
In any case, we are not, as Ludwig asserts, “called upon to construe two statutes [the FLREA and the Oregon immunity statute] together.” Appellant‘s Br. at 29. Under the FTCA, we are called upon to construe and apply state law and state law limitations on tort liability. Our construal of Oregon law is not affected by our construal of the FLREA. So even if we accepted all of Ludwig‘s interpretations of FLREA, that would still not disturb the meaning or application of a parking fee under the Oregon statute. The meаning of parking fee under Oregon law remains a fee charged for the privilege of parking.
Ludwig advances other well-articulated arguments that the National Forest Recreation Pass is not a parking fee under Oregon law, but none are persuasive. Ludwig attempts to distinguish McCormick by noting that the receipts for passes in that case explicitly labeled the passes as parking fees, whereas the National Forest Recreation Pass‘s title is more ambiguous. Because the title of the pass is Recreation Pass and not simply Parking Pass, Ludwig contends, the pass must cover more than just parking. But the Oregon statute takes a functional, not a formal, approach to parking fees. That means that the label of the pass is not the disрositive element. It doesn‘t matter whether the pass is titled—pursuant to FLREA—National Forest Recreation Pass or whether it describes itself as a vehicle pass. What matters is that visitors to the Ramona Falls Trailhead were required to buy a Nationаl Forest Recreation Pass only if they parked there, i.e., for the privilege of parking. Ludwig also argues that the fee was not a parking fee because all passengers in a car are jointly liable for a fine resulting from failure to pаy the fee, see
We conclude that the Forest Service charged a parking fee under
AFFIRMED