For Dan Haag, outdoor recreation is in Oregon’s DNA.

“It’s huge,” he said. “Hiking, skiing, beachcombing — you name it. There’s 10 million things you can do in the outdoors in Oregon, on the coast and everywhere else in the state.”

But a recent court ruling could impact the future of some of those activities.

Haag is the trails, outdoor recreation and accessibility director at Tillamook Coast Visitors Association. He’s also part of a growing conversation around changes to recreational immunity — an Oregon law that limits the liability of landowners who offer their land for public recreational use.

If a hiker falls on a county trail, the county can use recreational immunity as a defense in court. The statute isn’t bulletproof — it won’t shield a jurisdiction against gross negligence, for example — but generally speaking, it’s stopped liability lawsuits at the door.

Now, that’s being challenged.

The case in question, Fields v. City of Newport, revolves around a plaintiff who slipped and fell on a wooden bridge on Newport’s Ocean to Bay Trail while headed back from the beach. The Lincoln County Circuit Court initially dismissed the plaintiff’s personal injury claim and granted summary judgment in favor of the city based on its recreational immunity defense. When brought before the Oregon Court of Appeals, however, the case was reversed and remanded.

The decision in July has stirred up discussion among many local governments, including Clatsop County, about what comes next.

CIS Oregon, which insures many of Oregon’s counties and cities, has described the ruling as “effectively ending recreational immunity for improved trails” and has issued a statement recommending local governments close certain trails to avoid lawsuits. So far, a small handful of them have.

The case highlighted two main issues: whether the plaintiff was using the trail for recreational purposes, and whether the trail itself was protected under recreational immunity.

Oregon’s recreational immunity law provides protections for all recreational land, including but not limited to land adjacent to water or the ocean shore. It also includes provisions for unimproved trails used to get to those lands. The plaintiff argued that her primary purpose for using the trail was not recreation, and that the trail she sustained injuries on was improved and thus was not protected by recreational immunity.

The appeals court agreed. Whether such a trail could be protected as land adjacent to the shore, they added, would depend on whether it was being used for recreational purposes. The ruling essentially shifts the focus onto the intent of the trail user, opening a door for more lawsuits to be reviewed on a case-by-case basis.

“I don’t think that anyone contemplated that the intent of the user would in fact rise above the intent of the landowner in providing that for recreation,” said Cindy Robert, a contract lobbyist with the Oregon Recreation & Park Association.

Robert has been leading efforts to develop a legislative amendment with state Sen. Floyd Prozanski, a Eugene Democrat, to restore elements of recreational immunity. The Association of Oregon Counties, the League of Oregon Cities and other organizations are also involved in the process.

‘Risk analysis’

Several local governments are beginning to engage in conversations about risk assessment in the wake of the court ruling and subsequent response from CIS.

Although the state hasn’t seen mass closures, some jurisdictions have chosen to close select trails. Waldport, for example, has closed the Waziyata Trail due to existing hazards and recreational immunity concerns. Rockaway Beach and Manzanita are also considering temporarily closing some trails.

In Oceanside, Tillamook County has closed the Tire and Short Beach trails.

Chris Laity, the Tillamook County public works director, said the two trails were already in need of repairs, but the recent recommendation from CIS pushed their status from “proceed with caution” to “closed.” The county has no plans to close additional trails at this point, but that could change.

“Fortunately, our commissioners, or our risk assessment — they’ve only focused on those two (trails). But future lawsuits that could arise might take that risk analysis and change it to ‘let’s close every single thing down,’” he said.

Other jurisdictions are taking a similar approach.

Chris Havel, deputy director of government relations and policy at the Oregon Parks and Recreation Department, said the state is watching to see how the Fields case plays out now that it has been remanded back to Circuit Court. Although the Parks and Recreation Department closes some trails as necessary when hazards arise, it doesn’t have any plans for closures based on recreational immunity concerns.

“We’re alert, but we’re not taking any hasty steps right now, and each jurisdiction is coming to its own conclusion on that,” Havel said.

Locally, Astoria and Clatsop County are reviewing properties that could be impacted by the ruling and assessing whether changes need to be made. County staff plan to present more information to the county Board of Commissioners at a January work session.

County Manager Don Bohn said he interprets the court ruling as being relatively narrow. Since many of the county’s improved trails exist on recreational lands, rather than as connectors to recreational lands, he anticipates they’ll remain unaffected. Nevertheless, the county is taking time to work through next steps.

“You have to look at all the specific properties and then evaluate it: is it a trail that just gets you to a recreational property? Or is it a trail on a recreational property? So we’re gonna go through that exercise,” Bohn said.

‘Extra liability’

While the Fields case has prompted some initial trail closures, it also raises a broader question about access to outdoor recreation.

Scott Winkels, a lobbyist for the League of Oregon Cities who’s involved in legislative amendment efforts, said insuring cities is a tall task. A key reason for recreational immunity is to encourage landowners to make their land available for public use — but if more trails are at risk of liability in a lawsuit, the incentive to do so declines dramatically. Even if a jurisdiction prevails in court, litigation costs pose a significant financial hurdle.

“The reality is that, in a state where we have constricted revenues on local governments and they’re having to decide on services, where would they prioritize carrying extra liability for recreation if they’re still trying to keep police and fire departments fully staffed?” Winkels said.

As conversations continue, Havel said he sees the issue as a matter of balancing risk and reward.

“We love the way people feel and the experience they have when they come to a park, and that’s why we do what we do. And we don’t want to just change that for legal reasons,” he said.

Robert, of the Oregon Recreation & Park Association, said that going into the short session in February, the focus is to pursue a technical fix, or a “Band-Aid,” for some of the concerns surrounding recreational immunity. In the longer term, those efforts could translate into broader conversations about preserving recreational immunity.

To Robert, developing a legislative amendment isn’t about expanding recreational immunity. It’s about clarifying the original intent of the law — to keep parks and trails open for public enjoyment.

“I think if we keep going back to that core reason for recreational immunity, we’ll come up with great solutions,” she said.