Dana Ludwig, as Independent Administrator of the Estate of BRENT LUDWIG, deceased v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1205
DANA LUDWIG, as Independent Administrator of the Estate of
BRENT LUDWIG, deceased,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-02943 — Gary Feinerman, Judge.
____________________
A RGUED O CTOBER 26, 2021 — DECIDED D ECEMBER 27, 2021
____________________
Before F LAUM , S T. EVE, and K IRSCH , Circuit Judges.
K IRSCH , Circuit Judge. After Brent Ludwig drowned in a
tragic accident on United States Forest Service property in Or-
egon, Dana Ludwig, his wife and administrator of his estate,
brought an action against the United States under the Federal
Tort Claims Act. Dana Ludwig sought damages for both neg-
ligence and wrongful death. The district court granted sum-
mary judgment for the United States on the basis that

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2 No. 21-1205
Oregon’s recreational use statute protected the government
from suit. Dana Ludwig argues on appeal that the district
court’s application of Oregon law was erroneous. We agree
with the district court and affirm.
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 land administered by the United States Forest Ser-
vice. The Forest Service provides parking areas and trail ac-
cess 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, purchased 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 a 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), 28 U.S.C. § 2671 et seq. The United States
moved for summary judgment, arguing that Oregon’s

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No. 21-1205 3
recreational use statute applied, granting it immunity from
Dana Ludwig’s suit. Oregon’s statutory scheme creates im-
munity for a landowner from tort claims for any death that
arises out of the use of the land for recreational purposes, in-
cluding swimming, camping, hiking, waterskiing, and other
such outdoor activities. O R . R EV. S TAT. §§ 105.672(5), 105.682.
That immunity doesn’t apply, however, to any owner who
charges for recreational use of the land. Id. § 105.688. But that
exception is subject to its own exception; the tort immunity
kicks back in if the owner charges only a “parking fee of $15
or less per day.” Id. § 105.672(1)(c). The result of this statutory
scheme is that a property owner is immune from tort liability
if it charges a parking fee of less than $15 for use of its land.
The Federal Lands Recreation Enhancement Act (FLREA)
limits the Forest Service’s ability to charge fees for federal rec-
reational lands and waters. 16 U.S.C. § 6802. As relevant here,
the statute authorizes the Forest Service to charge a standard
amenity recreation fee for an area that, among other things,
contains all the following amenities: designated developed
parking; a permanent toilet facility; a permanent trash recep-
tacle; an interpretive sign, exhibit, or kiosk; picnic tables; and
security services. Id. § 6802(f)(4)(D). Exercising this preroga-
tive, the Forest Service requires visitors to the Ramona Falls
Trailhead to purchase a $5 pass entitled National Forest Rec-
reation Pass to park in the Ramona Falls parking area.
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 Service land based on the

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4 No. 21-1205
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 only 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 enti-
tled to judgment as a matter of law. Id. Here, there is agree-
ment on the material facts. The dispute is a legal one of statu-
tory application.
The FTCA is a limited waiver of the United States’ sover-
eign immunity and imposes liability “under circumstances
where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where
the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The
United States can assert any substantive limitation on liability
under that state’s law that a private person could assert in the
same circumstances. Augutis v. United States, 732 F.3d 749, 754

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No. 21-1205 5
(7th Cir. 2013). Because Brent Ludwig’s death occurred in Or-
egon, Oregon law and its limitations on liability apply. See id.
We review de novo a district court’s determination of state
law in an FTCA case. Clanton v. United States, 943 F.3d 319, 323
(7th Cir. 2019).
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 on an issue, we look to state appellate courts
absent any persuasive indication that the state supreme court
would decide differently. Id. It’s undisputed that the Forest
Service’s pass cost $5, so the only pertinent question of law is
whether the pass was a parking fee under O R . R EV. S TAT.
§ 105.672. If it is a parking fee, then the United States is im-
mune from Ludwig’s suit.
The district court correctly invoked and applied an Ore-
gon 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 statu-
tory 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 or-
dinary meaning of O R . R EV. S TAT. § 105.672(1)(c)’s “parking
fee” is a “fee charged for the privilege of parking.” Id. at 223.
The district court rightly concluded that the Oregon court
took a function-over-form approach. In other words, a charge
is a parking fee if the charge actually grants someone the priv-
ilege to park, not simply if it has the form or title of a parking
fee. So, under the Oregon statute, if a recreational user who
parks at the recreational site needs to pay a fee for the privi-
lege of parking, then the user has paid a parking fee.

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6 No. 21-1205
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 does 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, 16 U.S.C. §
6802(d)(1)(A), but rather is authorized to charge a fee if the
Forest Service provides designated developed parking along
with other amenities (a permanent toilet facility, a permanent
trash receptacle, interpretive sign, exhibit, or kiosk, picnic ta-
bles, and security services), id. § 6802(f)(4)(D).
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 parking
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 ob-
tain[] in exchange for paying the fee[?]” McCormick, 308 Or.
App. at 223. Nothing suggests that the privilege to park need
be exclusive of other amenities to qualify as a parking fee un-
der Oregon law. This understanding of Oregon law accords
with reality; parking fees are accompanied by amenities all
the time. Purchasing a pass for a parking garage that provides
security and restrooms grants the purchaser the privilege of
parking and the privilege of accessing the garage’s accompa-
nying amenities. But the fee remains a parking fee. The pres-
ence of other amenities does not undermine the purpose of
the fee.

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No. 21-1205 7
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 vehi-
cle, 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
amenities listed in § 6802(f)(4)(D) does not preclude the pass
from qualifying as a parking pass under Oregon law. In other
words, it doesn’t matter that the Forest Service included those
five amenities alongside its parking privileges, because the
charge was, ultimately, for the privilege of parking.
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 ac-
cepted 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 meaning 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

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8 No. 21-1205
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 dispositive 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
National 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 pay the fee, see
16 U.S.C. § 6811(c), and because of the possibility that the
Forest Service charged for parking and not per person out of
efficiency concerns. Both arguments fail for the same reason—
the charge remains for the privilege of parking. The fine is a
penalty for failure to appropriately pay for the vehicle
occupants’ privilege to park, no matter who pays it. And the
Forest Service has decided to charge visitors for the privilege
to park, no matter the reason—efficiency or otherwise. That
decision does not violate the FLREA (at least) because the
required amenities listed in § 6802(f)(4)(D) are present at the
Ramona Falls Trailhead.
We conclude that the Forest Service charged a parking fee
under O R . R EV. S TAT. § 105.672(1)(c). Accordingly, the United
States is immune from this suit under Oregon law, and sum-
mary judgment was properly granted to the United States.
A FFIRMED

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