United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-1928

___________________________

Swan B. Moss, III, Individually and as Co-Administrator of the Estate of G.Y.M.,

Deceased and On Behalf of Wrongful Death Beneficiaries of G.Y.M. Estate of

G.Y.M.; Gay Cunningham Moss, Individually and as Co-Administrator of the

Estate of G.Y.M., Deceased and On Behalf of Wrongful Death Beneficiaries of

G.Y.M. Estate of G.Y.M.; Kerri Basinger, Individually and as Administratrix on

behalf of Shane Edward Basinger Estate on behalf of Jadyn Rhea Basinger Estate

on behalf of Kinsley Ann Basinger Estate; Anthony Lynn Shumake, Administrator

of the Estates of Robert Shumake, deceased, Wilene Shumake, deceased, and N.S.,

deceased, and on Behalf of Wrongful Death Beneficiaries of Robert Shumake,

deceased, Wilene Shumake, deceased, and N.S., deceased Estate of Robert

Shumake Estateof Wilene Shumake Estate of N.S; Tara Roeder, Administratrix of

the Estate of Deborah Busby Roeder, and on behalf of the wrongful death

beneficiaries of Deborah Busby Roeder Estate of Deborah Busby Roeder; Natisha

L. Rachal, on behalf of T.A.; Jerry Don McMaster, Individually and On Behalf of

the Estate of Debra Wynne McMaster and His Minor Children, A.C.M. and

E.C.M. Estate of Debra Wynne McMaster on behalf of A.C.M. on behalf of

E.C.M.; Christy Pugh Basinger, on behalf of K S B; Benjamin L. Pate, on behalf

of B.L.; Aaron Sultz, Individually and as Special Administrator of the Estate of

Eric Wayne Sultz, on behalf of The Estate of Eric Wayne Sultz, Deceased, and

Statutory Wrongful Death Beneficiaries of Eric Wayne Sultz Estate of Eric Wayne

Sultz; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder,

and on behalf of the wrongful death beneficiaries of Bruce Wayne Roeder Estate

of Bruce Wayne Roeder; Amanda Baker Willis, Individually and as Administrator

of the Estates of K.S., deceased, and Julie Freeman, deceased, and on behalf of the

wrongful death beneficiaries of K.S. and Julie Freeman Estate of K.S. Estate of

Julie Freeman; Judith N. Pate, on behalf of B.L.; Adam Jez, Individually &as

Administrator of the Est of Leslie Jez, Decd, obo Est of & Wrongful Death

Beneficiaries of Leslie Jez, &Adam Jez, Individually &as Administrator of the Est

of KJ, Decd, obo Est & Wrongful Death Beneficiaries of KJ Estate of KJ Estate of

Leslie Jez; Susan Johnson, Administrator of the Estate of Sheri Wade, Deceased,

on behalf of the Estate of Sheri Wade, and on behalf of the Wrongful Death
Beneficiaries of Sheri Wade Estate of Sheri Wade; Candace Smith, individually

and as Administratrix on behalf of Anthony Keith Smith Estate on behalf of

Joseph Paul Smith Estate on behalf of Katelynn Nicole Smith Estate; Theresa

Roeder, as the Administratrix of the Estate of Esther Kay Roeder, deceased, and

on behalf of the wrongful death beneficiaries of Esther Kay Roeder Estate of

Esther Kay Roeder

Plaintiffs - Appellants

v.

United States of America; United States of America, Acting By and Through the

Department of Agriculture, U.S. Forest Service, also known as Department of

Agriculture, also known as U.S. Forest Service

Defendants - Appellees

____________

Appeal from United States District Court 

for the Western District of Arkansas - Texarkana

____________

Submitted: February 13, 2018

Filed: July 20, 2018 

____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

____________

ERICKSON, Circuit Judge.

This case arises from the tragic flooding of the Little Missouri River in the

Albert Pike Recreation Area (“Albert Pike”) which islocated in the Arkansas portion

of Ouchita National Forest. Albert Pike is an outdoor camping and recreation site

covering over two hundred acres of land, including portions of the Little Missouri

River. On the night of June 11, 2010, an intense storm system caused rapid and

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serious flooding of the river. The rising water submerged several campsites within

Albert Pike, resulting in the death of twenty campers. 

This appeal stems from eleven consolidated lawsuits alleging negligence and

malicious conduct by the United States related to the development and maintenance

of Albert Pike. The district court granted the United States’s motion to dismiss for

1

lack of subject matter jurisdiction under the Federal Tort Claims Act (“FTCA”). 

After a careful review of the record, we affirm.

I. Background

Albert Pike is a large outdoor camping and recreation site. Winding through

the site is the Little Missouri River, which gives visitors the opportunity to engage

in popular recreational activities including fishing, canoeing, and swimming. The site

also contains fifty-four campsites placed over four loops, marked as Loops A, B, C,

and D. In 2010 it cost prospective campers $10 to secure a campsite overnight in

Loops A, B, and C, and $16 to secure a site in Loop D. Loop D’s higher cost was in

part due to its developed campsites, which included electrical and water hookups for

RVs. 

The Loop D campsites were constructed as part of a renovation and expansion

project for Albert Pike launched by Congress in 2001. The project allocated over

$600,000 to renovate sites in Loop C and to build Loop D campsites. The

redevelopment project was headed by District Ranger James Watson. The National

Environmental Policy Act of 1969, 42 U.S.C. § 4321, required Watson to prepare an

environmental assessment of the project. See 36 C.F.R. § 218.2. As part of that

The Honorable Susan O. Hickey, United States DistrictJudge for the Western 1

District of Arkansas.

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assessment, Watson put together a team including two “watershed specialists”: Ken

Luckow, a soil scientist, and Alan Clingenpeel, a hydrologist.

Luckow and Clingenpeel were each consulted for their opinion as to whether

any of the proposed campsitesin Loop D would fall within a floodplain. Luckow, the

soil scientist, prepared an initial report that concluded that “most of the area where

the new campsites are proposed . . . should be considered as being within the 100-

year floodplain.” As a result, he recommended that any campsite in Loop D should

be primitive. He explicitly recommended that any campsite should lack electrical and

water hookups. He also recommended placing signs to warn campers of potential

flooding.

Ranger Watson wanted to build developed campsites within Loop D, in part

due to a desire to put the appropriated funds to good use and in part to meet public

expectations surrounding the project. Presented with Luckow’s position, Watson

sought a second opinion. Watson took Clingenpeel – the hydrologist – in person to

the planned site for Loop D. Watson then asked him if he believed the proposed

campsite would fall within the 100-year floodplain. Clingenpeel visually estimated

the floodplain using the “double bankfull” method (which Clingenpeel himself

describes as only a “quick estimate” of the floodplain). Relying on that estimate,

Clingenpeel told Watson it was unlikely there would be flooding issues if all

renovations took place above the sighted floodplain.

Watson prepared a draft environmental assessment to submit for the project. 

The draft environmental assessment was circulated to various Forest Service offices,

as well as Luckow and Clingenpeel. The environmental assessment partially included

Luckow’s floodplain analysis, but ultimately contradicted Luckow by stating that the

proposed Loop D campsites would not fall within the 100-year floodplain. Despite

the environmental assessment’s final conclusion that the campsite would not fall

within a floodplain, the environmental assessment still recommended posting signs

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to warn of flash floods. Clingenpeel offered no edits to the draft, while Luckow made

only minor changes. The final environmental assessment wassubmitted. The Forest

Service then filed a decision notice (signed by Ranger Watson) approving the project,

including the creation of developed campsites within Loop D. The decision notice

made no reference to the floodplain or the need to place signs. No signs were ever

posted. Loop D opened for campers in 2004.

Occasionally the Little Missouri River would rise, prompting minor flooding

concerns for different campsites. Ranger Watson moved campersin Loop C on three

different occasions in 2006-07 due to light flooding. An incident report from 2008

suggests that campers upstream from Loop D once requested assistance after rising

waters washed their camping supplies downstream. Of ten documented flooding

eventsin Albert Pike between 1940 and 2010, none inflicted any reported injuries and

only one occurred near Loop D.

* * *

On the night of June 11, 2010, a strong storm system moved slowly toward

Albert Pike. The stormcreated flash flood conditions within the Little Missouri River

channel. By the time signs of flooding were readily apparent, many campers were

asleep at their campsites. Many of those who were awake decided to hunker down

in their vehicles. As the water continued to rise, some campers began to realize that

their vehicles might be at risk from the flood and attempted to move to higher 

ground. Several families sought refuge in nearby trees. 

Over the course of the next several hours, catastrophic flooding claimed the

lives of twenty campers. Some of the campers who attempted to take refuge in the

trees were wrested away by the rising tide of the floodwaters. Other families, some

of which included three generations, attempted to make it through the storm in their

vehicles, but perished when the flood swept the vehicles away. Seventeen of the

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campers who lost their lives were camping in Loop D, with the other three just

upstream. A U.S. Geological Survey expert described the flood’s intensity as

exceeding a “500-year flood event.”

The plaintiffs in this case filed claims under the FTCA related to the

development and maintenance of the Loop D campsites. The United States moved

to dismiss, claiming they were entitled to immunity under the Arkansas Recreational

Use Statute (“ARUS”) and so the FTCA deprived the district court of jurisdiction. 

See, e.g., Wilson v. United States, 989 F.2d 953, 955-56 (8th Cir. 1993) (explaining

that “the United States is entitled to the benefit of state recreational use statutes, if

applicable, when it is sued under the Federal Tort Claims Act”). The district court

asked the Arkansas Supreme Court to accept certification of this question: “Whether

‘malicious’ conduct[] under [theArkansas Recreational Use Statute] includes conduct

in reckless disregard of the consequences from which malice may be inferred.” The

Arkansas Supreme Court accepted certification and answered in the affirmative. 

Roeder v. United States, 432 S.W.3d 627 (Ark. 2014).

Once the certified question was answered, the district court consolidated the

cases. The United States renewed its motion to dismiss for lack of jurisdiction. The

district court allowed limited discovery related to jurisdictional issues. After

discovery was complete, plaintiffs filed their opposition to the motion to dismiss. 

TheUnited Statesreplied including testimonial declarationsfromthreewitnesses who

had not been deposed. Plaintiffs moved to strike the declarations, or in the

alternative, to be allowed to depose the three witnesses.

On March 28, 2017, the district court granted the United States’s motion to

dismiss for lack ofjurisdiction and denied plaintiffs’ motion to strike the declarations. 

The district court held that the United States was entitled to immunity under the

ARUS. As a result, the district court held that it lacked subject matter jurisdiction

under the FTCA. Plaintiffs appeal.

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II. Discussion

A. Standard of Review

Plaintiffs appeal the district court’s grant of the United States’s motion to

dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). Motions under

12(b)(1) may assert either a “facial” or “factual” attack on jurisdiction. Where, as

here, a party brings a factual attack, a district court may look outside the pleadings

to affidavits or other documents. See Harris v. P.A.M. Transport, Inc., 339 F.3d 635,

637, 637 n.4 (8th Cir. 2003). “This does not . . . convert the 12(b)(1) motion to one

for summary judgment.” Id. at 637 n.4. Instead, the party invoking federal

jurisdiction must prove jurisdictional facts by a preponderance of the evidence. 

OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 347 (8th Cir. 2007). Those

factual findings are reviewed for clear error. Osborn v. United States, 918 F.2d 724,

730 (8th Cir. 1990) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

“Thus, the Rule 12(b)(1) procedure enables the court to resolve a threshold

jurisdictional issue without the need for trial, unlessthe issue is‘so bound up with the

meritsthat a full trial on the merits may be necessary to resolve the issue.’” Disability

Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543, 547 (8th Cir. 2018)

(quoting Crawford v. United States, 796 F.2d 924, 929 (7th Cir. 1986)). If the

jurisdictional issue is “bound up” with the meritsit remains within the district court’s

discretion to decide whether to evaluate the evidence under the summary judgment

standard. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 203 n.19 (1974)

(explaining that when there is “an identity between the jurisdictional issues and

certain issues on the merits” a district court may apply the summary judgment de novo

standard) (internal quotation marks omitted). 

The FTCA conferssubjectmatter jurisdiction for suits against the United States

in “circumstances where the United States, if a private person, would be liable to the

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claimant in accordance with the law of the place where the act or omission occurred.” 

FDIC v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. § 1346(b)). The

“private analogue” requirement is echoed in the section of the statute explaining the

federal government’s liability. See 28 U.S.C. § 2674 (“The United States shall be

liable . . . in the same manner and to the same extent as a private individual under like

circumstances . . .”). 

The district court made several findings of fact by a preponderance of the

evidence. Plaintiffs assert that because jurisdiction under the FTCA is “intertwined

with” the merits question of the applicability of the ARUS to the plaintiffs’ claims,

the district court abused its discretion by failing to apply a summary judgment

standard when considering the evidence. The United States responds by saying that

plaintiffs’ argument is immaterial, as dismissal was appropriate under either

standard. We need not decide whether the district court applied the correct standard,

2

asjurisdiction islacking even when the facts are viewed under the summary judgment

standard. 

B. Immunity under the ARUS

Because the FTCA removes immunity from the United States only in those

circumstancesin which a private landowner would be liable, we must decide whether

an individual landowner would receive immunity from plaintiffs’ claims under the

ARUS. See 28 U.S.C. § 1346(b). “The purpose of [the ARUS] is to encourage

The United States also suggests that plaintiffs did not clearly object in the

2

district court to the proposed standard of review, thereby waiving any argument over

the correct standard. We doubt that plaintiffs’ argument was waived. Individual

plaintiffs repeatedly identified the proposed standard in their briefs before

consolidation of the cases. Those arguments were then incorporated in their joint

response. Because we affirm the district court, however, we decline to reach this

issue.

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owners of land to make land and water areas available to the public for recreational

purposes by limiting their liability toward persons entering thereon for such

purposes.” Ark. Code. Ann. § 18-11-301 (2016). “Generally, the ARUS provides

immunity from liability to landowners who make their property available for the

recreational use of others.” Roeder, 432 S.W.3d at 630. There are two main

exceptions: 1) when “the landowner charges the person entering the land for

recreational use,” and 2) “when the landowner maliciously fails to guard or warn

against an ultrahazardous condition, structure, use, or activity actually known to the

landowner to be dangerous.” Id. (citing Ark. Code Ann. § 18-11-307 (2016)). We

consider each exception in turn.

1. The “Charge” Exception

The ARUS generally does not provide immunity “[f]or injury suffered in any

case in which the owner of land charges the person or persons who enter or go on the

land for the recreation use thereof . . .” Ark. Code Ann. § 18-11-307(2) (2016). The

statute defines a “charge” as an “admission fee for permission to go upon or use the

land.” Ark. Code Ann. § 18-11-302(2) (2016). The parties dispute whether the $16

fee to secure a campsite in Loop D is an “admission fee” that “charged” the plaintiffs

for their recreational use of Loop D. 

The United States suggests that previous decisions involving similar statutes

enacted in other states compel an interpretation of the statute that excludes campsite

rental fees from qualifying as “admission” fees. See, e.g., Wilson v. United States,

989 F.2d 953, 957 (8th Cir. 1993) (holding that a $2 fee to stay in a building on a

military base did not remove immunity under the Missouri recreational use statute);

see also Garreans v. City of Omaha, 345 N.W.2d 309, 313 (Neb. 1984) (holding

campsite rental fees were not admissions fees under Nebraska’s recreational use

statute), overruled on other grounds by Bronsen v. Dawes Cty., 722 N.W.2d 17 (Neb.

2006). We are mindful that “[t]he interpretation of the various recreational use

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statutes is controlled by the precise language of each statute.” Wilson, 989 F.2d at

956. We also acknowledge that we are bound by authoritative constructions of state

law by a state’s highest court – constructions that might differ from state to state,

even when different statutesinclude similar language. See Eichenwald v. Small, 321

F.3d 733, 736 (8th Cir. 2003), as corrected (May 21, 2003) (“When deciding matters

of state law, we are bound by the decisions of the state’s highest court, and, to the

extent that a precise issue has not been addressed by that court, we must determine

its probable decision on the issue by reference to its analogous case law, relevant

decisions of the state’s lower courts, and other potentially elucidating state law

materials.”). Finally, the Arkansas Supreme Court’s decision in Roeder suggeststhat

the ARUS should be construed strictly to avoid an overbroad grant of immunity. 432

S.W.3d at 634.

Even construing the ARUS strictly, however, the Loop D campsite fee does not

qualify as an “admission fee” under the statute. Plaintiffs focus on the fact they were

injured while camping – the exact activity for which they paid the use fee. But the

ARUS, by its plain terms, removes immunity only when a fee is charged to enter a

particular area. See, e.g., OXFORD ENGLISH DICTIONARY (3d ed. 2004 & online

version 2011) (“admission”: “[t]he process or fact of entering or being allowed to

enter a place . . .”), http://www.oed.com/view/Entry/2584; WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 28 (1971) (“admission”: “permission or right to enter

. . .”; “price of entrance; fee paid at or for entering”). Fees subsequent to entry, such

as charges to access services such as water or electrical hookups, do not alter the

initial grant of immunity. Those fees are not required for “entrance” to the relevant

parcel of land. The United States represents (and the record supports) that the $16

overnight campsite fee was solely for access to particular campsite services and that

campers who didn’t pay the fee could still access Loop D. See Oral Argument at

20:49, http://media-oa.ca8.uscourts.gov/OAaudio/2018/2/171928.MP3 (“Even with

respect to Loop D . . . people who haven’t paid a campsite fee can go into Loop D

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[and] they can use the bathhouse”). Under the plain language of the statute, the 

charge exception does not apply to the Loop D fees.

3

2. The “Failure to Guard or Warn” Exception

The ARUS’s other exception denies immunity “for malicious, but not mere

negligent, failure to guard or warn against an ultra-hazardous condition, structure,

personal property, use, or activity actually known to the owner to be dangerous.” 

Ark. Code Ann. § 18-11-307(1) (2016). An activity is ultra-hazardous if it 1)

“necessarily involves a risk of serious harm to the person or chattels of others that

cannot be eliminated by the exercise of the utmost care” and 2) “is not a matter of

common usage.” Mangrum v. Pigue, 198 S.W.3d 496, 499-500 (2004) (citing Zero

Wholesale Gas Co. v. Stroud, 571 S.W.2d 74 (1978)); see Carr v. Nance, 370 S.W.3d

826, 838 (2010) (affirming where jury instructions stated that “a condition is

ultra-hazardous if it (1) cannot be performed without a risk of serious harm to the

person or another, regardless of any precautions taken; and (2) does not normally

occur in that community”).

To determine whether an activity is ultra-hazardous, we must define the

specific activity at issue. The key to this task is defining the activity at the right level

of generality. On the one hand, describing an activity at a high level of generality –

such as describing the activity in this case as merely “camping” – would tend to make

the activity a “matter of common usage” but would not take into account relevant

distinguishing characteristics. On the other hand, describing an activity at a minute

level of generality – such as “camping on June 11, 2010, at a particular time and

As such, we need not reach the question whether the collected fees were used 3

merely to “reduce or offset costs and eliminate losses from recreational use.” See

Ark. Code Ann. § 18-11-302(2)(B) (2016). 

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location in Ouchita National Forest” – would make any activity “uncommon” simply

because it is not precisely the same as its close relatives. Arkansas law indicates that

the appropriate level of generality takes into account some particularizing factors,

such as distinct and appreciable risks that might arise from engaging in an activity in

a specific area. Cf. Carr, 370 S.W.3d at 839 (holding, in a case involving cables

strung across trails frequented by four-wheelers, that “[i]t was not the hanging of a

cable per se that constituted the ultra-hazardous activity, but the hanging of an

unmarked cable at a dangerous height in an area in which the landowner knows there

are people traveling on four-wheelers”). We conclude that the activity at issue in this

case is “camping in a 100-year floodplain.” This description appropriately pegs the

definition to the knowledge that plaintiffs suggest the United States had or should

have had regarding the nature of the danger posed by a 100-year floodplain, without

including non-salient attributes of the tragedy. Cf. id. at 839 (including in the

definition of the activity that the cable was hung in an area in “which the landowner

kn[ew] there [we]re people traveling on four-wheelers”). 

So defined, the activity is a common recreational activity. The record indicates

that camping within a 100-year floodplain is not an uncommon recreational activity

in Arkansas. Camping near a water source poses some risks, but campers, fishermen,

4

and other outdoorsmen frequently visit rivers and streams to access the unique

recreational activity opportunities they provide, even when doing so places them

within distance of the 100-year floodplain. Because this activity is a “matter of

common usage,” ARUS’s immunity would extend to a private landowner facing this

We disagree with plaintiffs’ contention that this argument was improperly

4

raised in a reply brief in the district court. Cf. United States v. Castellanos, 608 F.3d

1010, 1017 (8th Cir. 2010) (“Not every new argument, or shift in approach,

constitutes the raising of a new issue.”).

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claim. And because a private landowner would be immune under the ARUS, there 5

is no jurisdiction under the FTCA for plaintiffs’ claims against the United States.6

III. Conclusion

The flooding of the Little Missouri River was a devastating tragedy. We must

resolve the claims arising from that tragedy by determining the extent of federal

immunity under the Federal Tort Claims Act and the Arkansas Recreational Use

Statute. Because we conclude that under Arkansas law a private landowner would

be immune from plaintiffs’ claims, we affirm the district court’s dismissal for lack of

subject matter jurisdiction. 

______________________________

Plaintiffs argue against this conclusion by pressing other, more particularized 5

definitions: either “camping in an RV in a flash flood zone, with no warnings posted,

during a flash flood watch (and later warning),” or “locating the campsites in a

floodplain, in a narrow valley between steep mountains, without posting any signs or

providing any warnings even during a flash flood warning.” As explained above, we

believe these definitions import features of the specific event in question, rather than

the general nature of the activity. Even if we were to accept plaintiffs’ definition,

however, ARUS would still grant immunity, because the plaintiffs would be unable

to show actual knowledge of the particularized risk inherent to their more specific

definitions. See Roeder, 432 S.W.3d at 632 n.5 (explaining that the “activity must be

actually known to the owner to be dangerous”). Plaintiffs’ claims are based on a “500

year” flood event that went far beyond the scope of the flood risk of which plaintiffs

allege the United States either was or should have been aware. The limited evidence

of knowledge of minor flooding events within a 100-year floodplain is insufficient

to show actual knowledge of the danger to human life posed by a more serious flood

event.

We therefore need not discuss other issues related to this exception, such as 6

whether the United States acted maliciously.

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