may please the court good morning now also good morning my name is mel orchard from the spence law firm in jackson wyoming and i'm here on behalf of the families who are the appellant's in this cause of action this morning the issue in this case is the district court used the wrong standard to decide this case the court decided this case on the merits and instead should have used the summary judgment standard analyze this case the reason is when you have facts intertwined dealing with jurisdiction amps and subject matter the court must use a summary judgment standard and when it is largely for the court discretion under our all's mournin johnson case yes well it's it the court has discretion to use three levels i don't think the court has discretion when the facts are intertwined like this  early yeah right and save and save the actually all parties the litigation expense if you can and you recognize that in the in the district court the plaintiffs did by engaging in jurisdictional discovery for what six months it wasn't well five depositions all right whatever so it was it usually doesn't take five to get to get at the issue well we agree i mean it usually doesn't take eight years to get to the past some seventy years keep your honor eight years ago this june these families all died so but to your point when you look at the johnson decision this court said in that decision that looking at whether or not the scope of employment was several is something that the court could decide on undisputed facts here on a limited record five depositions where the court dictated how we were going to operate even though we had clearly preserve this argument by say your honor don't decide this case without going all the way to the merits because the facts are so intertwined and so instead the court decides to give us five depositions so on that limited amount of discovery there was no way it was a fully developed record and that's the problem that deprives not just the litigants but it deprives the district court of the opportunity to no what was what kind of what kind of a motion practice was there on five depos is not enough to be removed well the court dictated our schedule we asked the court to make a for a facial analysis of whether or not we bled subject matter jurisdiction right and then when the government for the first time attached a bunch of google maps i'm not being facetious google maps in support of the record and three new how should the court have proceeded and then did it did it do it right well right we didn't know what standard the court was going to use until we read the order where the court decided the whole case on the merits on a truncated basis so how are we supposed to go well we mean you didn't read as porn oh yeah that's exactly what i mean that's exactly what we what we have taken great pains to point out but the and johnson well then i don't understand why the court didn't follow was more well i don't understand why you didn't bring that up on say you're just saying there should have been summary judgment standard well you don't go down the twelve b one path and then apply to all the six or fifty six standards well we didn't play any of those  if the court if the court goes down the wrong path you pointed out the court we did have from when he asked ok but you didn't appeal those rulings you're just up here saying well it is a matter of hindsight when all was said and done in the dust cleared we don't like that we don't like the standard the court applied well it's true are saying when the dust cleared we don't like this standard that quickly oh now you want to do you want to go back and start over we know well yes we want to have our chance at an opportunity to be heard and notice of a standard that's going to be applied appropriately for sure and to develop it rather in that we're in the record on appeal will i speak at all i see the additional discovery itemized that would that would be required  to do a proper summary judgment exercise i don't think it's in the appeal record but what i can tell you what we would do if we were going to go on this is just this is just i think i this is this is not an appellate issue the court used the wrong standard it is absolutely an appellate issue it's for this court to cure this decision is right now being used in appropriate thank me a circuit court from anywhere that did a twelve b one exercise and then said whoops i've got  well be sixty anderson since i'm looking at extra evidence this is a summary judgment and i've got to start over well the interesting thing is i can't do that because all these cases are real fifty six when you look back at the cases in even  circuit even the tenth circuit ninth circuit the third circuit they're usually dealing with rule fifty six so we have a fully vetted record and this case i can't imagine anything more crucial than when twenty people die and we have the same statute that confers jurisdiction and substantive law that we don't have a fully developed record and we request a fully developed record that was denied the court said and the court by the way said i'm just going to take a little look at jurisdiction i'm just going to take a small look and and this you know after months it wasn't that tell me how here's the real larking big issue in this case how do we tell when the jurisdiction america are so intertwined that you get fifty six or six or something else besides be one hours more jobs well so the eighth circuit hasn't developed an actual test on that osborne talks about it it was talked a lot about talked a little bit about in johnson but there are three separate tests that the district court of if the circuit courts have used one is if the same statute provides jurisdiction and the merits like here then it is considered to be the jurisdictional question relies on a resolution of an element of the substantive claim we meet that test too because in the arkansas recreational use statute whether there was a malicious failure to guard or warn of an alter has this condition or they were paying fees to camp for the use for the used recreational area we when that is the that are those are the same questions that go to a summary judgment standard right so the third test is where there might be overlapping questions of fact between jurisdictional issues and substantive issues and that's where it should be an issue to be determined on summary judgment taking the facts of the non movement as true then by the way the standard that should have been applied the government doesn't contest that should've been applied so the standard rule fifty six is the standard and this court must articulate this case because this case and the underlyin district court is a published decision being used as we speak right now for the proposition that a court on a limited basis even when you go to the ultimate issue of fact can decide jurisdiction which is especially in these kinds of cases is a total miscarriage of justice these folks deserve their day in court to prove these cases so let me move on to the actual arkansas recreational use statute that statute provides for two exceptions to immunity one is that they pay a fee and in this particular case the use of the recreational a is very very consequential when you compare it to the other cases our folks paid to camp in this improved campground the feel was raised from ten dollars to sixteen dollars in the environmental assessment so that they wouldn't undercut a private operation by their own admission this money was used to improve the campground that distinguishes it from greg from greens from all the other cases that are out there f how do we know the private campground wasn't also subject to this exception like the the the fee was not was not didn't fall into this exception under the two right i said well they raised the fee from ten to sixteen dollars so that they wouldn't unfairly compete with private parties my only point is how do we know those private parties also were not within the sub two exception but i think that whether the statute says itself says you're not immune if you use that like a business and you're making money on it and this is what the government was doing they were using this money to make improvements that that takes them out of the exception right away i mean they are that makes them fall within the exception that confers liability so in that by their own statements for using it for improvements of this property and that distinguishes it from the case law the eighth circuit where if it's used specifically for costs like dry court was undisputed use for costs and it doesn't fall within that particular exception you have any arkansas i know sit down and reserve these yes thank you that issue and the first one and maybe the most important one is that even under a summary judgment standard the plaintiffs would not be able to show that any of that either of these exceptions apply and it's notable that pin ups have not identified a single disputed material opposing counsel says a we race we raised it in i think i got my case right we raised it in the in the preconceived all day sion right and is and then in our in our joint response to your  otherwise very thorough and careful opinion in the party you know should pile in motion for reconsideration to do something to bring it to the disregards attention the second point and then i'd really would like to move back to the actual merits of the case but even in the pre discovery are actually arguing a different issue your honor what they were arguing was under kern's that this court had to assume jurisdiction they didn't argue the standard to apply in deciding jurisdiction they didn't cite any of the decisions that they've cited here and so i think it's understandable what the district court didn't address this issue but that all said even under the summary doesn't it if you're looked on the face and said you don't get full discovery counsel well  he issue before it which is whether the arkansas record usually not you know poz like you are and that's the same issue from this court and the plaintiffs didn't preserve any argument on appeal that they didn't get sufficient discovery on that issue and that issue is possible now on the two exception first exception requires that the landowner maliciously fail to guard a warning on some known cultural hazardous condition and here are the facts demonstrated that the government had no basis to know that this area was subject to dangerous flash flood plainness focus a lot of their argument on whether or not this was a one hundred year flood plan and i can explain why the government reasonably concluded that it wasn't but regardless when it's don't argue that a one hundred year flood now you're now you're harassing the argument that  think it is a key to the case the language the statutory language that's key to the case your honor is the arkansas statute that defines a charge as an admission fee and what is or is the enter or go all and i'm reading it it says when charges you enter or go on admissions in the three zero two that therefore the way i think about it go on is out of the language you you forget about the word go on in three zero seven right well it says to go up on i mean that is dispositive for this case so you know whether it's go upon or enter i really don't think it matters what matters is whether an admission fee was paid and what this court said and wilson is that you know a charge to stay in a bunk rental that is not required to otherwise use the recreational area does not satisfy an admission fee under the definition of this exception and that's been uniform case law case that case that has addressed in any way here assertion that there is no meaningful distinction between maintenance and improvements there is not but let me and let me address why there isn't a distinction between the two at least in this case but first let me say that you don't even get to that question if you agree that the campsite charge is not an admission fee in other words there are two different ways in which this exception doesn't apply for the government the first is if the fee that's at issue is not an emission fee  hate to do this because i'm going right back where you started out but i mean if you talk about admission fee and you're going to say that it doesn't make any difference if it's enter or go upon well an entrance fee is an admission fee a fee to use  n facilities might be a fee to go upon the property that might be something different and arkansas supreme court just told us that we should interpret this act as broadly as possible to provide the fullest extent of coverage possible so that they're somehow a distinction between this statute and all of the other statutes the courts of uniformly interpreted to not be triggered by a campsite fee i just it's it's hard for me to understand exactly what our discussion is supposed to seize upon is go upon or enter somehow triggered differently by a campsite the i don't i honestly i'm confused by what sort of distinction plaintiffs are trying to draw there the issue is the plaintiffs paid for a service to use a campsite pad where there's an electrical hook a water hookup they didn't have to pay that to use the recreation or in any respect and even with respect to loop de those particular camps that people who haven't paid a campsite fee can go into loop the they can use the bath house so the idea that that is somehow an admission fee or garbus of whether you put emphasis somehow on enter or go up on a just it is contrary to the plain meaning of the language consistent with what every other court has that so it just i guess if there are further questions on that i'm happy to answer them but i just don't understand how it can be an admission fee and then of course even if it were an admission then the question would be ok to the government use this for some other purpose because they were using campsite fees to improve the firing or increase queens of the area that just is not that's completely at odds with the purpose of the statute it's not as if you know planners would have it that the recreational use landowner must preserve the land in precisely the same condition otherwise they lose this protection and that's just can't be the case so either way you look at it whether you're looking at it as whether or not it's an emission fee or the use of that of  guess it or a service can send a check to the treasury or it can build a new or better part but that seems to me not to be and not to be simply covering your costs i think if there were if the forest service i mean there isn't there isn't the government doesn't make a profit it sure bends the money on something sure an argument is not that of the forest service for sending some surplus money to the treasury department but that would fall outside of the exception certainly that would be a different case here on the facts are the spending surplus money you had to deliver to have a better national park system which we all want them to do what the undisputed facts show your honor is that eighty five percent of the money is spent and one in three were were i can find this in the record i believe it's also it's seven thirty two thirty seven thirty three although i may be wrong  but what they show is that the forest service spent eighty five percent on maintenance and improving of these various can't camp sites did you just i mean use mumbled an improvement in there sure but the improvement was well your honor the whole issue is whether improvements are are simply covering cost your honor as i discussed earlier the improvements that they're talking about are new firings tables lantern poles additional kinds of the bath houses the idea that that somehow falls outside of a point of cleaning would be improved right that's what but i understand but that's what the government official was saying this is what i mean by improvements and here's a question and when i when i read that i was concerned about whether or not he was really talking  old firings with new firings but regardless the point oh well but but that's def that's a big difference to me because if you just replacing things that are already there that sounds me more like made that it does improvements improvements sounds like if you're putting up new structures and you know and and you know i guess the way they describe it is just was when i read it it was hard for me to figure exactly whether they were what they were talking about well what to think just on the improvement point specifically i think even if they were using the fees to construct a new campsite that's a little b yeah exactly it cost six hundred thousand to do lou and now we are now are charging enough so that well that will be in before too long we can do a loop says they were wrong and are they should have paid they should have given more deference to sovereign immunity here well first of all their results from gore was addressing a very different question which is whether i'd question right there were the that same logic a political to this question well it still requires a first of all i don't think they intended the court to read say well any permissible reading must be the interpretation of as you know the most possible i think it still has to be a you know ordinary understanding of the statute but regardless to point there this is not a permissible reading of the statute to say that a recreational land use on or can't you know create a new campsite with the fields that's exactly what the statute is intended for and then just to back up i just want to remind the court you only get to this issue if you disagree with every other court to address the issue that a campsite fee is not an admission fee if you you have to say that a campsite fee is an admission fee then you've got to whether or not this you know the use of the fees here somehow fell out of the statute thank you thank you oh just so that's so it's very clear the other exception to the arkansas recreational use statute the malicious failure to guard or warren is it page twenty eight of our brief it is also at issue least talked about that let me go to the cases that were cited by the government talking about this fee the wilson case involved the boy scouts that were outside of the building and they were they were playing w they stood up and electrocuted him they were her help killed sadly outside of the area they were using judge benton to your question about go upon or use and same with judge erickson the seminal language is to use in arkansas and that distinguishes this case from the other cases where it talks about just an admissions fee for instance in the great case  undisputed that the costs that they were of the actual use were the fuel was being used to offset the costs undisputed factually that in that case the person was her walking off a bluff that was unrelated to the use these folks paid sixteen dollars a night to camp this happened at three in the morning while they were sleeping according to the record you get a fifty dollar fine if you don't pay the but we use the money for doing prove the fencing around there and we've improved the fence all the way around by just using the money for improvements i'm certainly increasing the value that's a business operation to say that on their own testimony in their own environmental assessment before they had a late filed on their reply brief explanation they said this is going to be used for improvements end of story period not oh it's just for firing are but at least at the very least disputed we'd sure like to chance to inquire into that your honour's respectfully we would ask that your amount remember man this case the district court for trial decide this on a summer judge a motion that there is genuine issues of material fact on the issues that we have played in recent preserved thank you so much for your time this morning thank you council make a significant case it's been well briefed and argued take it under advisement