Recreational immunity concerns partially cited for current MERA closure
By Garrett Christensen on Monday, January 22nd, 2024 in More Top Stories Northeastern Oregon News
UNION COUNTY – The Union County Board of Commissioners and Union County Public Works have continued to receive inquiries and concerned messages from county residents regarding the ongoing Owsley Canyon Trailhead closure at the Mount Emily Recreation Area (MERA) as part of phase II of the Red Apple Forest Improvement Project. These inquiries, as Elkhorn Media Group has been permitted to review them, range from confusion as to when and where the closure was announced to disputing the need to close portions of MERA at all.
In a response to a recent message, Union County Commissioner Paul Anderes and Union County Parks Coordinator Josh Ford noted that the ongoing legal dispute over the status of ORS 105 (Recreational Immunity) has partially led to the decision to close a portion of MERA while the Red Apple project is underway. For those unfamiliar with the situation, ORS 105, section .682 is a clause within Oregon Law that, as written, states:
“An owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes.”
Union County have cited the results of the ongoing Fields v. City of Newport case, (where in a person injured themselves on a beach access), and the Oregon Court of Appeals decision to not uphold recreational immunity as applied to access paths to beach areas. In effect, the possibility that injury could occur in a public recreational area because of county operations/infrastructure combined with the fact that, in theory, the county or contractor may not be immune to a potential lawsuit has partially influenced the decision to maintain the ongoing closure of the Owsley Canyon Trailhead for the season.
To put it in more simple terms, while the decision to close the trailhead was already based on safety concerns due to forestry activity, the Newport incident has county leadership concerned that they could possibly be open to a lawsuit should an accident occur. As such, Union County is not taking any chances. There are, of course, other factors that play into the schedule of forestry operations and the decisions to not allow partial or infrequent openings. As explained by County Parks Coordinator Josh ford in a reply to previous inquiries:
“Weather conditions are the driving factor behind when forestry operations can occur. Resolution 21-007 Mount Emily Recreation Area Programmatic Agreement (a programmatic agreement between Union County, the Oregon State Historic Preservation Office, and the Confederated Tribes of the Umatilla Reservation) stipulates under what conditions logging can occur in this area of MERA. These conditions leave us with a narrow weather-dependent window to complete the remaining work in the RAFIP.
To make the best use of our time our contractor has been working weekends and nights to get as much done as possible. With our frequently changing weather, every day counts. With that being said there are still multiple weeks of work ahead of us. If this were a summer operation with consistent weather, I could provide you with a date that the work would be completed. But for the reasons above I cannot at this time. I assure you we are doing everything we can to complete the work promptly.
Previous attempts at partial closures or intermittent closures have only confused MERA users. Despite current closures, we are still seeing the use of closed areas putting recreationists and equipment operators at great risk of injury. Even at a time when the contractor is not operating, current trail conditions are not safe for public use due to a variable trail surface, downed trees, snags, and debris. For these reasons, and in an attempt to be more consistent I have decided to keep the Owsley Trailhead closed for the remainder of the winter forestry operations.”
The full text of ORS 105.682 can be found at https://oregon.public.law/statutes/ors_105.682 Updates on MERA can be found at https://www.meetmera.org/general-8
