Andy Woo
*This article reflects the personal views, analyses, or opinions of the author, and not the official position or opinion of the Attorney General or the Office of the Attorney General. It should not be construed as legal advice and does not constitute an official opinion of the State of Washington.
On September 1, 2022, the Washington State Supreme Court issued a 5-4 decision in Schwartz v. King County, 200 Wn.2d 231, 516 P.3d 360 (2022), that has significant implications for those who open their property to public outdoor recreation. This case is the latest in a line of recent Supreme Court and Court of Appeals cases reflecting a continued tension between the legislative and societal policy underlying Washington’s recreational use immunity statute, RCW 4.24.200-210—which is to encourage landowners or others to make lands and water areas available to the public for recreation—on the one hand, and the modern judicial trend towards abrogating both common law and statutory immunities for negligence liability, on the other. In this most recent effort by the Court to resolve that tension, those who open lands and water areas to public outdoor recreation [hereinafter collectively “landowners and occupiers”] now face added uncertainty as to the scope of recreational use immunity and increased potential liability.
Background
The core statutory language of Washington’s recreational use immunity statute provides:
Except as otherwise provided . . . any public or private landowners, hydroelectric project owners, or others in lawful possession and control of any lands . . . who allow members of the public to use them for the purposes of outdoor recreation . . . without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.
RCW 4.24.210(1). Accordingly, landowners and occupiers generally are not liable for the unintentional injuries suffered by recreational users of their land unless the injured party overcomes the immunity by showing one of three statutory exceptions: (1) a fee was charged for the use of the land, (2) the injury inflicted was intentional, or (3) the injury was caused by a “known dangerous artificial latent condition for which warning signs have not been conspicuously posted.” RCW 4.24.210(4)(a) (emphasis added); Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001).
Schwartz hinges entirely on that third exception—what constitutes a “known dangerous artificial latent condition.” The facts of the case, summarized from the Court’s opinion, are as follows. Mr. Carl Schwartz was bicycling the Green River Trail on a wet and overcast morning in March 2017. He collided with a bollard, a removable post designed and commonly used along bicycling or other recreational paths and trails to prevent entry by motorized vehicles. The force of the collision “sheared Schwartz’s carbon frame bicycle in two and threw Schwartz to the ground headfirst,” resulting in debilitating injuries. Schwartz, 200 Wn.2d at 235. The particular bollard at issue was placed in the middle of the trail, painted white, and had a small red reflector attached to it. At some point in the years before this crash, “POST” and other warnings had apparently been written in fluorescent paint on the pavement near the bollard, but had since faded. One expert testified by deposition that in the condition of that wet and overcast morning, “[t]he bollard hit by Mr. Schwartz was completely inconspicuous under the weather and lighting conditions that existed at the scene at the time.” Id. At issue, then, was whether this bollard, while “known” and “artificial,” and for which no warning signs had been conspicuously posted, is also “dangerous” and “latent” within the meaning of the statute.
King County Superior Court granted the County’s motion for summary judgment, concluding that the recreational immunity applies and that the bollard did not constitute a known dangerous artificial latent condition. A divided panel of Division Two of the Court of Appeals reversed on the basis that Mr. Schwartz had established a genuine issue of material fact as to whether the “known dangerous artificial latent condition” exception applied. Despite quoting the rule established in Jewels v. City of Bellingham, 183 Wn.2d 388, 400, 353 P.3d 204 (2014), that “latency is viewed objectively, and what a particular recreational user saw, believed, or thought he saw is immaterial,” the majority held that there was sufficient evidence to demonstrate a material issue of fact exists as to whether the bollard was latent “under conditions as they appeared to Schwartz.” Schwartz v. King County, 14 Wn. App. 2d 915, 940, 474 P.3d 1092 (2020). Judge Worswick concurred with the majority’s ruling that recreational immunity applied, but dissented as to that subjective latency analysis. Citing Jewels and attaching the photographs submitted by Mr. Schwartz, Judge Worswick objected that “[b]ecause the condition in question can be photographed and was easily observed, I would hold that it is obvious, not latent.” Id. at 942-44. (Worswick, J., dissenting in part).
In a closely divided opinion, issued nearly one year after hearing argument, the Supreme Court affirmed the Court of Appeals.
Was the Bollard “Dangerous”?
As to “dangerous,” the Supreme Court reaffirmed the definition stated in prior case law that a condition is dangerous if it “poses an unreasonable risk of harm.” Gaeta v. Seattle City Light, 54 Wn. App. 603, 609, 774 P.2d 1255, review denied, 113 Wn.2d 1020, 781 P.2d 1322 (1989), abrogated on other grounds by Jewels v. City of Bellingham, 183 Wn.2d 388, 353 P.3d 204 (2015). Other than noting that “dangerous” should be “defined in terms of common law negligence” and more than just “any lesser hazard,” Gaeta, 54 Wn. App. at 609, neither Gaeta nor subsequent case law has proffered a more in-depth analysis on how this definition should be applied. But Schwartz rendered perhaps one of the broadest applications possible by endorsing a somewhat circular rationale given by the court below: that “the very nature of Schwartz’s injury indicates that the bollard is dangerous.” 200 Wn.2d at 243. Furthermore, the Court gave credence to the “reasonable inference” that someone must have thought the bollard posed an unreasonable risk of harm so as to have used fluorescent paint to write “POST” on the ground near the bollard as a warning to trail users in the past.
In Gaeta, the Court of Appeals interpreted the recreational use statute in manner that recognized the underlying policy, concluding that “[t]o define ‘dangerous’ as meaning any lesser hazard would operate to increase the potential liability of the landowner. This would be contrary to the stated purpose of the statute.” 54 Wn. App. at 609. It is easy to see how the Court would not be inclined to consider the bollard at issue a “lesser hazard” given the gravity of the injury Mr. Schwartz suffered. But at the same time, many personal injury claims are brought because the plaintiff suffered a serious injury. By determining whether a condition is dangerous by the degree (or solely the existence) of the injury suffered rather than the objective unreasonableness of the hazard,1 this decision’s circular reasoning could mark the end of “dangerous” as a meaningful independent element in the “known dangerous artificial latent” analysis.
Was the Bollard “Latent”?
However, it is in the Schwartz majority’s analysis of whether the bollard was “latent” where legal advisors for landowners and occupiers across the state will notice the most significant deviation from prior case law on this issue. The Court’s majority, led by Justice Stephens, held that expert testimony that the bollard was inconspicuous under the weather and lighting conditions “that existed at the scene at the time” raised a genuine question of material fact as to whether the condition was “functionally invisible” and therefore latent within the meaning of the recreational use immunity statute. The emphasis on conditions “at the scene at the time,” as well as the concept of “functional” invisibility/latency marks a major deviation from the Court’s prior objective approach to the latency inquiry. More specifically, the majority overruled2 the test established by Jewels for the “dispositive question” of whether the condition is readily apparent to the class of general recreational users.” Jewels, 183 Wn.2dat 389 (citing Tennyson, 73 Wn. App. at 555-56).
Washington case law established that a condition is “latent” if it is “not readily apparent to the recreational user.” Van Dinter v. City of Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993). The question that logically follows is what “not readily apparent” means and from the perspective of which “recreational user.” The Court had previously articulated that a condition is not latent merely because a plaintiff did not see it or failed to appreciate its dangerousness, and that it is therefore an “objective inquiry.” Id. Building on this analysis in 2015, the Supreme Court, in another 5-4 decision,3 established in Jewels v. City of Bellingham that because “[t]he dispositive question is whether the condition is readily apparent to the general class of recreational users, not whether one user might fail to discover it,” a condition is obvious (not latent) “if an ordinary recreational user standing near the injury-causing condition could see it by observation, without the need to uncover or manipulate the surrounding area.” 183 Wn.2d at 400. The dissenting opinion strongly criticized this “standing near test,” and the objective inquiry approach in which the subjective perception of the injured individual “is ‘immaterial’ to the latency determination.” Id. at 403 (Gordon McCloud, J., dissenting)
In Schwartz, the 5-4 majority has now flipped the other way as to the “standing near test.” Although the Schwartz Court did not go as far as to make it a purely subjective inquiry—that is, whether the plaintiff actually saw or appreciated the condition—it certainly introduced various elements of subjectivity: weather, lighting condition, and the type of recreation. In a major departure from and rejection of the standard under Van Dinter and Jewels, Schwartz states in no uncertain terms that it is incumbent on the landowner or occupier to “foresee whether recreational users will be able to perceive the dangerous condition, which in turn requires the landowner to consider what recreational users are likely to be doing when they encounter the dangerous condition.” Schwartz, 200 Wn.2d at 241. Whereas Jewels stood for the proposition that the landowner or occupier need only to assess the risk of latent conditions from a uniform standard applied to all recreational users, Schwartz requires a landowner to account for the different needs and perceptual ability of different classes of recreational users, including those whose ability to observe their surroundings may be diminished when traveling at speed: bicyclists, skateboarders, skiers, runners, etc. Schwartz, 200 Wn.2d at 242. Under this standard, it is hard to see how any condition could be ever be deemed obvious (i.e., not latent) as a matter of law, as what may not be latent to someone at a given time for a given activity may be so for another.
The dissenting opinion, led by Justice Owens and joined by Justices Johnson, Madsen, and Yu,4 defends the “standing near test” as the proper legal test, noting that even the photograph proffered by the plaintiff’s own expert witness “clearly shows the bollard’s visibility” which was “clearly visible to the naked eye.” Id. at 249 (Owens, J., dissenting). The dissenting opinion subsequently notes that “[w]hether the condition can be seen in a photograph is persuasive evidence for [the standing near] test, but it is not part of the test itself.” Id at 250. In “disavow[ing]” the “standing near test,” the Schwartz majority offered no alternative, other than that the inquiry now requires consideration of the condition from the typical recreational user’s perspective while engaging in typical recreational use of that place at the time. This subjective inquiry likely means that whenever latency is at issue in a recreational use immunity case, it cannot be resolved as a matter of law and must go to the jury.
Additional Uncertainties in Light of Recent Recreational Use Immunity Decisions
The significance of Schwartz can be better appreciated when viewed and understood from the subtext of a continued tension between the Legislature’s recognition of the policy served by recreational use immunity and the trend at common law of abrogating statutory immunities. Throughout the 55 years since the statute’s passage in 1967, the Legislature enacted numerous amendments, each which have, without exception, broadened, rather than narrowed, the scope of immunity.5 On the other hand, courts have, for decades, expressly recognized that “the trend in the law is toward abrogation of many of the statutory and common law immunities for negligence.” Matthews v. Elk Pioneer Days,64 Wn. App. 433, 439, 824 P.2d 541 (1992). Some of the recent decisions by the Supreme Court and Court of Appeals, including Schwartz, reflect this trend.
The dissenting justices in Jewels, three of whom are still on the Court and now comprise the majority in Schwartz, clearly viewed the latency question as unfinished business. The majority opinion expressly stated: “our obligation is to acknowledge the problem [with Jewels] and resolve the tension or course correct.” Schwartz, 200 Wn.2d at 242. For either the legal advisors to landowners or to injured recreational users, this begs the question of what other unfinished business the courts may have in mind with respect to recreational use immunity. Below are a few tensions that either have yet to be fully resolved or may potentially be course corrected in light of Schwartz.
Does “Possession and Control” Mean “Continuing Authority to Close”?
In 2014, the Supreme Court issued a 4-3 decision (with two justices not participating) in Camicia v. Howard S. Wright Construction Co., 179 Wn.2d 684, 317 P.3d 987 (2014). The Camicia decision had two major implications: First, the Court questioned whether recreational immunity would even apply “to land that is open to the public for purposes other than recreation.” Id. at 699. Second, the Court concluded that the term “lawful possession and control” used in RCW 4.24.210 necessarily limits recreational immunity only to those with “continuing authority to close” land that is already open to the public. Id. at 696-97.
As to the first point, the Court has since course corrected by unanimous decision in Lockner v. Pierce County, 190 Wn.2d 526, 415 P.3d 246 (2018), holding that recreational immunity “is not extinguished when land is used for other public or private activities in addition to recreation.” As to the second, the Court declined to fully address that question when it came up in Lockner. Id. at 535 n.2. However, both the analysis used in Lockner and the Court’s reading of the recreational immunity statute in Schwartz demonstrate that this issue is still very much in play.
The reasoning behind Camicia’s “continuing authority to close land to the public” test is that if the land is already open to public access (of any kind), and the landowner or occupier lacks the authority to close the land to the recreating public, the statutory purpose of encouraging landowners to open lands to public recreation necessarily becomes irrelevant. Camicia, 179 Wn.2d at 696-97. The Court supported this reasoning in its Schwartz decision by reading the recreational immunity statute in the following manner: that recreational use immunity applies only to “any public or private landowners . . . in lawful possession and control of any lands.” Schwartz, 200 Wn.2d at 238 (quoting RCW 4.24.210(1)) (emphasis added); accord Camicia, 179 Wn.2d at 696 (“The recreational immunity statute applies only to those landowners with ‘lawful possession and control’ over land . . . .”).
This interpretation, evidenced by the use of ellipsis in Schwartz tying the phrase “in lawful possession and control” as a qualifier applying to “landowners,” while plausible from the punctuation (or lack thereof) of the statute as currently written, is not supported by the legislative history. The Legislature added the independent phrase “others in lawful possession and control” in 1969, two years after the original recreational immunity statute was enacted, to add a distinct category of those to whom it wanted to extend the benefit of the recreational use immunity statute. Laws of 1969, 1st Ex. Sess., ch. 24 § 2. The apparent purpose was that many recreational sites may be managed not by the landowner, but by a lessee, concessionaire, or some other form of management agreement, under which those individuals or entities have “lawful possession and control” of the property, but not ownership. By reading “lawful possession and control” as a qualifier not just for “others,” such as tenants/lessees, but for the entire list including “landowners” and “hydraulic project owners,” as Camicia did and Lockner and Schwartz seem to do,6 the Court continues to indicate a rejection of the legislative intent as demonstrated through the incremental expansion of RCW 4.24.210 .
“Conspicuous” Warning Sign
The recreational use immunity statute continues to protect landowners and occupiers from liability even for known artificial dangerous conditions so long as a warning sign has been “conspicuously posted.” RCW 4.24.210(4)(a). For landowners and occupiers who are unable to remove the risks posed by a known dangerous artificial dangerous condition for one reason or another but still wish to keep the land open to outdoor recreation, this safe harbor serves as a last resort for minimizing potential liability while providing the recreational users with notice of the risks.
In Schwartz, the Court accorded significance to the evidence presented by the plaintiff that “[t]he bollard . . . was completely inconspicuous under the weather and lighting conditions that existed at the scene at the time.” 200 Wn.2d at 245. Given the Court’s shift on the latency inquiry from an objective standard to a more subjective one, it seems inevitable that the conspicuousness of any posted warning sign can likewise always be called into question. Will the Court apply an objective inquiry to whether a sign is “conspicuously posted,” or will it, like the latency inquiry, now require consideration for how and when various types of users would encounter the sign? Is a warning sign “conspicuous” if it is not illuminated at night, for example, or not legible under every lighting condition, or difficult to see for someone speeding past on an electric bicycle?
An “Unjust Relief” for Public Landowners?
Another interesting subtext that warrants attention is the discomfort by some judges and justices with applying recreational immunity to public landowners, specifically government entities like cities and counties. In Camicia, the Court referenced this discomfort by suggesting that interpreting RCW 4.24.210 broadly risks “unjustly reliev[ing] the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel.” Camicia, 179 Wn.2d at 699. Of course, the recreational immunity statute itself draws no distinction between “any public or private landowners, hydroelectric project owners, or others in lawful possession and control,” RCW 4.24.210(1), but it is possible the courts will err on the side of interpreting the immunity more restrictively when it comes to government entities. Would the Schwartz majority have reached the same conclusion had the landowner in question been a nonprofit or private landowner, rather than King County? Unlike Camicia, Schwartz does not expressly accord any significance to the fact that King County owns and maintains the trail and bollard in question. However, it is hard to imagine the Court would have required the landowner to “foresee whether recreational users will be able to perceive the dangerous condition” and “consider what recreational users are likely to be doing when they encounter the dangerous condition,” Schwartz, 200 Wn.2d at 241, if, for example, the trail was owned or managed by a non-profit entity reliant on volunteer hours in its struggle to keep the trail in shape, or by a private landowner whose willingness to allow public recreation already borders somewhere in between neighborly and begrudging sufferance.
Conclusion
In this backdrop of shifting jurisprudence on recreational use immunity, individuals and entities who currently provide outdoor recreation without a fee (or for statutorily permitted fees) are left with uncertainties as to how to navigate a landscape in which public outdoor recreation has reached an all-time high during and following the COVID-19 pandemic7 while the protection against liability afforded by recreational use immunity continues to shift in a way that signals the courts’ reluctance to apply this immunity.
The recreational immunity statute contains a long yet expressly non-exhaustive list of outdoor recreational activities that seems to suggest landowners should feel encouraged to allow as many uses as possible: “the cutting, gathering, and removing of firewood . . . hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, aviation activities including, but not limited to, the operation of airplanes, ultra-light airplanes, hang gliders, parachutes, paragliders, rock climbing, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, kayaking, canoeing, rafting, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites.” RCW 4.24.210(1). A reality not expressly addressed by the Legislature is that the same condition at a site could be perceived and encountered very differently by those various users: a bollard may conceivably stub the toe of a walker, but could inflict serious injury to a bicyclist, as was unfortunately the case in Schwartz. Jewels sought to reconcile this discrepancy by establishing an objective standard that assumes one is standing near and observing the condition in question—which puts more of the onus on individual recreational users to beware commensurate to their activity, whether they be bicycling or flying an airplane. Schwartz now shifts the onus to the landowner and seems to suggest that if a landowner is going to invite the public to come participate in any of the above, it must be prepared to ameliorate the risks as perceived and encountered by all potential users—or else undertake the potential liability.
For some landowners, the logical response may simply be to restrict or become more selective in the types of allowed uses, or establish more rules or conditions of access (speed limits, for example). For others, it may be to forego reliance on uncertain immunity and start charging access fees8 substantial enough to defray the costs of managing recreational access and potential liability. Some may do both by limiting the number and conduct of recreational users via paid access permits coupled with liability waivers.9
Absent legislative intervention, or a “course correction” in a future case (as Lockner was for Camicia on the question of mixed use), it behooves those who currently open lands or water areas to outdoor recreation to carefully consider how Schwartz may impact their risk of liability. At the very least, Schwartz makes it much more difficult for landowners to assert recreational use immunity as an affirmative defense and prevail as a matter of law whenever the injury-causing condition is artificial and potentially, subjectively, latent. Recreational use immunity had never been an absolute immunity, but more than ever in this shifting landscape, the protection it offers to landowners and occupiers who open the their lands and water areas to free public outdoor recreation can no longer be taken for granted.
Footnotes
1 For example, and hypothetically, a less circular application of the “unreasonable risk of harm” standard could assess evidence that the bollard posed an unreasonable risk of harm by virtue of its placement “in the middle of the trail,” Schwartz, 200 Wn.2d at 235, rather than on the side of the trail or at trailheads, where they may more usually be expected.
2 The majority opinion states that it does not so much “overrule” Jewels as simply “disavow” the test established in Jewels. Schwartz, 200 Wn.2d at 242. The dissenting opinion responds that the majority “effectively overrules Jewels.” Id. at 370 (Owens, J., dissenting).
3 Justice Gordon McCloud authored the dissenting opinion in Jewels, and was joined by Justices González, Stephens, and Wiggins. Now, in Schwartz, Justices Stephens, Gordon McCloud, and González, joined by Justices Montoya-Lewis and Whitener, comprised the majority for overturning Jewels.
4 All four of whom had been among the five justices comprising the majority in Jewels.
5 Table of Legislative History of Recreational Use Immunity (This summary table excludes a 2003 amendment and a 2011 amendment enacted only for the purpose of codification updates):
| Year | Legislation | Effect |
| 1967 | ESHB 258, Laws of 1967, ch. 216 | Enacted to limit landowner liability toward persons entering property and toward persons injured or otherwise damaged by the acts or omissions of persons entering thereon (unintentional injuries only). Applies only to agriculture and forest lands |
| 1969 | EHB 128, Laws of 1969, 1st Ex. Sess., ch. 24 | (1) Expanded by extending protections to renters or lessees of land by adding the category of “others in lawful possession and control of the land.” (2) Expanded to also include water areas or channels where access is made available. (3) Expanded protection to owners or renters of forest and agricultural lands or water areas or channels and rural lands adjacent to such areas or channels. (4) Expanded by adding swimming, boating, and water sports to the list of activities. |
| 1972 | Laws of 1972, ch. 153, § 17 | (1) Expanded to include both public and private landowners and adds pleasure driving of all-terrain vehicles, snowmobiles, and “other vehicles.” |
| 1979 | HB 50, Laws of 1979, ch. 53 | (1) Expanded to include “any lands whether urban or rural.” (2) Expanded to indicate coverage is not limited to the listed activities (by adding “includes but is not limited to”), but also expressly added bicycling, the riding of horses or other animals, and clam digging. (3) Expanded to not limit to all-terrain vehicles but to include all off-road vehicles. (4) Expanded protection to landowners/possessors by providing that land usage by the public does not support any claim of adverse possession. |
| 1980 | SB 3474, Laws of 1980, ch. 111 | Expanded the illustrative list of activities by adding “the cutting, gathering, and removing of firewood by private persons for their personal use” (without purchasing the firewood from the landowner, but landowners and other lawful possessors may charge up to $10 administrative fee for those cutting, gathering, and removing firewood). |
| 1991 | SB 5015, Laws of 1991, ch. 69 | Expanded to include those who offer or allow permissive use for volunteer fish and wildlife cooperative projects, or allow access for cleanup of litter or other solid waste, shall not be liable for unintentional injuries to any volunteer or group or to any other users. |
| 1991 | SB 5630, Laws of 1991, ch. 50 | Expanded to indicate that for purposes of the Act, “fees” does not include a license or permit issued under the chapters pertaining to wildlife, fisheries, and Parks and Recreation, thus extending recreational use immunity to the resource agencies that issue these licenses and permits. |
| 1992 | SHB 2330, Laws of 1992, ch. 52, § 1 | (1) Expanded for landowners who are required to Leave Trees for Open Space land classification, that they shall not be held liable for any injuries or damages resulting from (the hazard of) leaving trees, including wildfire, erosion, and flooding. (2) And increases the administrative fee landowners can charge for cutting firewood. |
| 1997 | SSB 5254, Laws of 1997, ch. 26 | Expanded by adding to illustrative list of activities “skateboarding or other non-motorized wheel based activities, hang-gliding or paragliding.” |
| 2003 | HB 1195, Laws of 2003, ch. 16 | Expanded by adding to illustrative list of activities “rock climbing” and also expanded by indicating that a “fixed anchor” used in rock climbing and put in place by someone other than the landowner is not a known dangerous artificial latent condition and that the landowner will not be liable for unintentional injuries resulting from the condition or use of the anchor. |
| 2006 | HB 2617 | In view that local jurisdiction may allow off-road vehicle (ORV) use, RCW 4.24.210 is expanded to indicate that a daily charge of up to $20 for a person to access publicly owned ORV sports park or other public facility accessed by a highway, street, or non-highway road for purposes of ORV use is not a fee for purposes of recreational immunity. |
| 2011 | SSSB 5622, Laws of 2011, ch. 320, § 11 | Specifies that the charge for a Discovery Pass is not a fee for purposes of recreational immunity. |
| 2011 | SB 5388, Laws of 2011, ch. 53, § 1 | (1) Expanded by including hydroelectric project owners as a type of landowner entitled to recreational immunity. (2) Also expanded by adding to the illustrative list of activities “kayaking, canoeing, rafting.” (3) And also expanded by indicating that releasing water or flows and making waterways or channels available for kayaking, canoeing, and rafting, and making adjacent lands available for viewing such activities, does not create a known dangerous artificial latent condition. |
| 2012 | HB 2244, Laws of 2012, ch. 15, § 1 | Expanded by adding to the illustrative list of activities operation of airplanes, ultra-light airplanes, and parachutes. |
| 2017 | SHB 1464, Laws of 2017, ch. 245, § 1 | Expanded by excluding the following from the definition of “fees” for the purpose of the statute: “Payments to landowners for public access from state, local or nonprofit organizations established under fish and wildlife cooperative public access agreements if the landowner does not charge a fee to access the land subject to the cooperative agreement.” |
6 The Court specifically cites the recreational use immunity statute with ellipsis in the following way in its opinion: “’any public or private landowners . . . in lawful possession and control of any lands,’” Schwartz, 200 Wn.2d at 238 (quoting RCW 4.24.210(1)), signaling that it continues to interpret “in lawful possession and control” as not just a modifier for “others,” contrary to what the legislative history might suggest, but for the entire list including “any public or private landowners.”
7 See e.g., Wash. State Parks and Rec. Comm’n, Visitation Reports, https://www.parks.wa.gov/1165/Visitation-reports.
8 See e.g., The Columbian, Weyerhaeuser expanding access fee program (May 27, 2015), https://www.columbian.com/news/2015/may/28/weyerhaeuer-expanding-access-fee-program/.
9 E.g., Weyerhaeuser, Recreation Access Permit and Release of Liability, available at https://www.weyerhaeuser.com/application/files/2516/6327/4093/Contract.Permit.Non-Motorized.pdf.
WSBA ENVIRONMENTAL & LAND USE LAW SECTION 