August 2011 - Parks & Recreation - 40

LAW REVIEW continued from page 37

Washington " Day Pass " Fee
In the case of Voss v. United States (W.D.
Wash. 1/30/2006), the federal district
court considered whether the defendant
United States was not immune from suit
under the Washington State Recreational Land Use Act based upon a required
$5.00 " Daily Fee. " The facts of the case
were as follows:
On June 15, 2002, four members of the
Young family traveled to the Gifford
Pinchot National Forest (GPNF), where
they proceeded to the Lava Canyon
recreation site for a family outing. The
family consisted of Stacey Young, Sr.,
Jennifer Voss, and their two sons, Stacey Jr. (age 5) and Elijah (age 2).
After parking the car, the family
walked from the picnic area down a
paved trail to the banks of the Muddy
River, approximately one-half mile
away. Stacey Jr. and Elijah stepped into
the river at its side, and threw rocks
while mom took pictures.
Stacey Jr. either slipped or fell into
the river and was quickly carried away
by a swift current. Stacey Sr. dove into
the water in an effort to rescue his son.
Both father and son were swept to their
deaths over a waterfall downstream
about 50-75 yards from where Stacey
Jr. fell into the river...
Prior to the tragic accident, Mr.
Young parked the family car in the
Lava Canyon parking lot and filled out
a Northwest Forest Pass " Day Pass. "
According to instructions, he placed
the permit on his vehicle dashboard.
Rather than pay the $5.00 per vehicle
fee, Young wrote on the form " Disabled Veteran 70% USMC " and signed
the form.

The lawsuit alleged that " government agencies were negligent for failure
to warn of dangerous site conditions and
improperly designing visitor walkways. "
As noted by the federal district court,
under Washington State law, " both public
and private landowners may receive immunity for unintentional injuries to people
if the landowner allows the public to use
their property for recreational purposes

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AUGUST 2011

The court found it was " far from obvious that the
collection of the fee only from motorists on a per-vehicle
basis conclusively establishes it as a parking fee. "
without charging a related fee. " On the
other hand, the court acknowledged that
Washington courts have determined that
" immunity is not favored in the law and
that statutory grants of immunity should
be strictly construed. "
The specific issue before the court
was whether the Young family was
" charged a fee of any kind for the privilege of recreating at Lava Canyon. "
The defendant United States argued
that " the fee charged was a parking fee
and not a fee for use of the land " as contemplated in the state recreational use
statute. In so doing, the government cited a number of opinions issued by state
and federal courts in other jurisdictions
to " support the view that because people
who arrive by other means are charged
nothing to recreate, a per vehicle 'parking
pass' does not constitute a recreational
use fee and the statutory immunity survives, " including the Winebrenner opinion described above.
According to the court, " the simple
logic articulated in these cases offers a
tempting resolution of the case at bar. "
One flat fee was charged for the Young
vehicle without regard to the number
of passengers and all others who arrived at the national forest by
horseback, bicycle, kayak, canoe or
foot paid nothing for access to the land.
How is it possible that the " Day
Pass " charged only to vehicles entering
the parking lot at the Lava Canyon trail
head can be anything more than a
parking fee that does not jeopardize
the landowner's immunity?

According to the court, it is " the intention of the landowner that determines the
nature of the fee " within the context of a
state recreational use statute. In so doing, the court further noted that " a landowner may charge a fee for something
other than use of the land, and still enjoy recreational use immunity. " Moreover, the court acknowledged that " a

www.NRPA .ORG

landowner can charge a fee for public
use of a portion of its recreational land
without losing immunity for public use of
the remainder. "
In this particular instance, however,
the court was " not convinced " that the
landowner intent of " the per vehicle fee
charged at Lava Canyon was a parking
fee. " Specifically, the court noted that the
" sign at the site where the fee is charged
says nothing about a parking fee. " On the
contrary, the sign simply indicated that a
$5.00 " Daily Fee " was " Required. "
Based on this language in the sign,
the court found it was " unclear whether
the fee charged is a parking fee or, as its
name suggests, is a Day Pass fee for use
of the amenities provided by the government. " Further, the court found it was " far
from obvious that the collection of the fee
only from motorists on a per-vehicle basis
conclusively establishes it as a parking
fee. " According to the court, " [t]he method of collection may merely reflect the logistical realities of collecting a use fee in
a remote area in a cost-effective manner. "
On the other hand, if the fee was indeed a
" Day Pass, " the court noted RUS " immunity would not survive. "
In light of the uncertainty " about the
proper characterization of the $5.00 per
day charge, " the federal district court
found summary judgment in favor of the
defendant based on immunity under the
state recreational use statute was " inappropriate. " The case would, therefore,
proceed to trial for a jury to determine
whether the $5.00 charge was an immune
parking fee or a non-immune daily use
fee.
James C. Kozlowski, J.D., Ph.D .,

is an associate professor in the School of
Recreation, Health, and Tourism at George
Mason University in Manassas, Virginia.
jkozlows@gmu.edu. Webpage with link to
Law Review archive: http://mason.gmu.
edu/~jkozlows

August 2011 - Parks & Recreation

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