Keith Wilson, As Conservator for Crystal Wilson a Minor,plaintiff-appellant, v. United States of America, Defendant-appellee, 133 F.3d 931 (9th Cir. 1998)

MEMORANDUM^* 

A grant of summary judgment is reviewed de novo. Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court applied the relevant substantive law. Id.

Oregon's Recreational Use of Private Lands Act provides: "Except as otherwise provided in O.R.S. 105.675: An owner of land owes no duty to keep the land safe for entry or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering thereon for any such purpose." O.R.S. 105.665 (1992).

Oregon's Recreational Use Act applies to land defined as "forestland, and lands adjacent or contiguous to any bodies of water." O.R.S. 105.655(2). The South Twin Lake recreational area, located within the Deschutes National Forest, falls within this definition. Therefore, the Forest Service is not liable for negligence under Oregon's Recreational Use Act.

The alternative discretionary function exception from liability under the Federal Tort Claims Act (FTCA) considered by the district court is inapposite. See 28 U.S.C. § 2680(a) (1994). Liability of the federal government and its agents is determined "in accordance with the law of the place where the [allegedly tortious] act or omission occurred." 28 U.S.C. § 1346(b) (1994); Rhoden v. United States, 55 F.3d 428, 430 (9th Cir. 1995). Therefore, Oregon law controls and the Forest Service owed no duty of care to keep the land safe or to give any warning of a dangerous condition.

AFFIRMED.