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.

UNITED STATES OF AMERICA, 

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. 

____________________ 

ARGUED OCTOBER 26, 2021 — DECIDED DECEMBER 27, 2021 

____________________ 

Before FLAUM, ST. EVE, and KIRSCH, Circuit Judges. 

KIRSCH, Circuit Judge. After Brent Ludwig drowned in a 

tragic accident on United States Forest Service property in Oregon, 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 negligence and wrongful death. The district court granted summary judgment for the United States on the basis that 
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 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, 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 
No. 21-1205 3 

recreational use statute applied, granting it immunity from 

Dana Ludwig’s suit. Oregon’s statutory scheme creates immunity for a landowner from tort claims for any death that 

arises out of the use of the land for recreational purposes, including swimming, camping, hiking, waterskiing, and other 

such outdoor activities. OR. REV. STAT. §§ 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 recreational 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 receptacle; an interpretive sign, exhibit, or kiosk; picnic tables; and 

security services. Id. § 6802(f)(4)(D). Exercising this prerogative, the Forest Service requires visitors to the Ramona Falls 

Trailhead to purchase a $5 pass entitled National Forest Recreation 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 
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 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 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 
No. 21-1205 5 

(7th Cir. 2013). Because Brent Ludwig’s death occurred in Oregon, 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 OR. REV. STAT. 

§ 105.672. If it is a parking fee, then the United States is immune from Ludwig’s suit.

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 OR. REV. STAT. § 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 privilege 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 privilege of parking, then the user has paid a parking fee. 
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 tables, 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 obtain[] 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 under 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 accompanying amenities. But the fee remains a parking fee. The presence of other amenities does not undermine the purpose of 

the fee. 
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 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 

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 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 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 
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 OR. REV. STAT. § 105.672(1)(c). Accordingly, the United 

States is immune from this suit under Oregon law, and summary judgment was properly granted to the United States.

AFFIRMED