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Recreational Use And Immunity

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCES HOWARD,
Plaintiff-Appellant,
                                                     No. 97-15857
v.
                                                     D.C. No.
UNITED STATES OF AMERICA; US
                                                     CV-95-00642-DAE
SAILING ASSOCIATION, INC.; WAIKIKI
YACHT CLUB, a Hawaii                                  OPINION
corporation; GUY S. FLEMING,
Defendants-Appellees.


Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding


Argued and Submitted
November 2, 1998--Honolulu, Hawaii
Submission Deferred April 27, 1999
Resubmitted May 21, 1999


Filed June 22, 1999

Before: Alfred T. Goodwin, Robert R. Beezer, and
Thomas G. Nelson, Circuit Judges.


Opinion by Judge Nelson


_________________________________________________________________


COUNSEL

Paul Cronin and Patrick McTernan, Cronin, Fried, Sekiya,
Kekina & Fairbanks, Honolulu, Hawaii, for the plaintiff-
appellant.


Brian M. Judge, United States Department of Justice, San
Francisco, California, for defendant-appellee United States of
America.


Calvin E. Young, Gail M. Kang, Steven L. Goto, Ayabe,
Chong, Nishimoto, Sia and Nakamura, Honolulu, Hawaii, for
defendants-appellees U.S. Sailing Association, Inc., and Guy
S. Fleming.


                               6660


OPINION

T.G. NELSON, Circuit Judge:

Frances Howard appeals the district court's judgment, after
a bench trial, that the United States Government was immune
from negligence liability for personal injuries suffered by
Howard while she was using a military recreational facility.
We have jurisdiction under 28 U.S.C. S 1291. We affirm.


I.

The Government operates, controls and maintains Hickam
Air Force Base ("Base") on the Island of Oahu, Hawaii. The
Morale, Welfare and Recreation Program ("MWR") at the
Base has an Outdoor Recreation Department which is respon-
sible for maintaining and supervising the parks, beaches and
boating facilities located on the Base. One of these facilities
is the Hickam Harbor Recreational Facility ("Hickam Harbor"
or the "Harbor").


Hickam Harbor is available to military personnel, their
families and guests for a number of recreational pursuits,
including boating, using private or rented boats; windsurfing,
using private or rented windsurf boards; picnicking; and
swimming. The Harbor contains two floating docks, both
owned by the Government--the Rhodes Dock and the Holder
Dock. Howard was injured on the Holder Dock on June 4,
1993.


Howard, the wife of an active duty military officer, had just
completed the afternoon sailing portion of the first day of a
four-day sailing instructor course offered by US Sailing Asso-
ciation, Inc., a private organization that conducts sailing train-
ing courses. On that day, the wind and sea conditions were
rough, and there was a swell coming into the harbor. Howard
began to leave the dock to return to the classroom when she


                               6661


noticed a loose sail covering the end of the gangway 1 to shore.
As she stopped to gather the sail, an incoming swell caused
the floating dock to abruptly move shoreward and the gang-
way rolled onto her foot. Her resulting injuries are the subject
of this lawsuit.


Howard filed suit against the Government claiming that her
injuries were caused by the Government's negligence. 2 After
a bench trial, the district court granted judgment in favor of
the Government on Howard's claims, concluding that the
Government was immune from negligence liability under the
Hawaii Recreational Use Statute ("HRUS"), Haw. Rev. Stat.
SS 520-1 to 520-8 (1993).3 Howard timely appeals.


II.

We review the district court's interpretation of both federal
and state law de novo. See Tierney v. Kupers, 128 F.3d 1310,
1311 (9th Cir. 1997) (federal law); Palmer v. United States,
945 F.2d 1134, 1135 (9th Cir. 1991) (state law). The district
court's factual findings after a bench trial are reviewed for
clear error. See Magnuson v. Video Yesteryear , 85 F.3d 1424,
1427 (9th Cir. 1996).
_________________________________________________________________
1 The gangway connects the floating dock to the shore, with one end of
the gangway permanently connected to the shore and the other end resting
on a roller on the floating dock.
2 Howard later amended her complaint to add US Sailing, the Waikiki
Yacht Club and Guy S. Fleming as additional defendants. The district
court dismissed Howard's claims against these additional defendants
because the statute of limitations had expired. Howard has not appealed
the dismissal of these defendants.
3 The HRUS has been amended since the accident at issue in this case.
All references to the HRUS are to the version in effect at the time of the

accident in 1993.

                               6662


III.

Under the HRUS, a landowner who either directly or indi-
rectly invites or permits, "without charge," another to use his
or her property "for recreational purposes" is immune from
negligence liability. See Haw. Rev. Stat.S 520-4. Howard
argues that the HRUS does not apply to her case because (a)
the Government imposed a "charge" for use of the facility; (b)
the dock on which she was hurt was not "open to the public";
(c) she was a "business invitee" and the HRUS does not apply
to "business invitees"; and (d) she was not engaged in a
"recreational activity" when she was injured. We will address
each of these arguments in turn.


A. "Without Charge"

The first prerequisite to applicability of the HRUS is that
the landowner must not "charge" those entering onto his or
her land for recreational use. See Haw. Rev. Stat. S 520-5(2).
The HRUS defines "charge" as "the admission price or fee
asked in return for invitation or permission to enter or go
upon the land." See Haw. Rev. Stat. S 520-2(4).


[1] It is undisputed that the Government did not charge
Howard or US Sailing a fee to enter upon or use the Harbor.
It is also undisputed that the $175 fee that Howard paid to
take the four-day sailing course was charged by, and paid
exclusively to, US Sailing.4 The Government did not receive
any portion of this fee. Based on these undisputed facts, we
hold that Howard was not "charged" an "admission price or
fee . . . in return for . . . permission to enter or go upon the
[Government's] land." Haw. Rev. Stat. SS 520-2, 520-4, 520-
5(2).
_________________________________________________________________
4 Howard had just recently been hired by the MWR as a part-time sailing
instructor at the Harbor. It is undisputed that the MWR encouraged How-
ard to take this sailing course but that the course was not required for her
employment. It is also undisputed that Howard paid her own fee to take
the course.


                               6663


Our holding is consistent with those cases that have inter-
preted the HRUS. For example, in Viess v. Sea Enter., 634 F.
Supp. 226, 226 (D. Haw. 1986), the plaintiff was injured
while boogie-boarding off Wailea Beach. The plaintiff and his
companions had stopped at a hotel for lunch and decided to
go swimming before lunch. Id. at 227. They rented a boogie
board from a concessionaire on the beach and took turns using
the board while swimming. Id. The plaintiff went into the
water with the board and "while facing the shore, was struck
from behind by a large wave which lifted him up and threw
him on his head. The impact fractured his neck and rendered
him quadriplegic." Id.


The plaintiff sued, among others, Wailea Development
("Wailea"), the owner of the shoreline property above the
mean high-tide mark where the accident occurred. Id. The dis-
trict court granted Wailea's motion for summary judgment on
the basis of immunity under the HRUS. See id.  at 229-32.


In response to the plaintiff's argument that "Wailea has
received economic benefit from allowing people to use the
beach fronting its land,"5 the court stated:


      [The "charge"] exception is much narrower than
      the general provision found in other recreational use
      statutes, which states that an owner may not escape
      liability where he receives consideration as a result
      of entry to his property. Such phrasing might permit
      the finding of liability where the defendant obtains
      some less obvious benefit from plaintiff's use of his
      land.
_________________________________________________________________
5 There was apparently an interrelationship between Wailea, the hotel
and the concessionaire. Wailea and the hotel were both owned by common
parent corporations. The hotel, in turn, leased the beach concession to the
concessionaire that rented the boogie board to the plaintiff and his com-
panions. See 634 F. Supp. at 229.


                               6664


      The Hawaii statute, in contrast, speaks only to the
      explicit quid pro quo arrangement whereby a land-
      owner conditions admission to the land upon pay-
      ment of a fee. In the instant case . . . from the time
      plaintiffs arrived at the hotel grounds to the time of
      the accident, the only fee solicited was from defen-
      dant [concessionaire] for the rental of the boogie
      board. That fee was in no way a prerequisite by
      Wailea for use of the public beach. Plaintiffs admit
      that defendant Wailea made no direct charge upon
      plaintiffs in return for access to the beach. The court,
      therefore, finds that the "charge" exception to
      [HRUS] immunity does not apply to defendant
      Wailea.


Id. at 229.

In Budde v. United States, 797 F. Supp. 731, 733 (N.D.
Iowa 1991), the plaintiff was injured while sunbathing and
swimming at the officer's club swimming pool at the Naval
Air Station, Barbers Point, Hawaii. The plaintiff sued the
Government to recover for the injuries she suffered. The dis-
trict court granted summary judgment in favor of the Govern-
ment, finding the Government immune from liability under
the HRUS. Id. at 738.


The plaintiff argued that the Government was not immune
under the HRUS because it had received a charge or fee. First,
the plaintiff argued that the $6 per person per night charge to
stay at the Bachelor Officers' Quarters was a "charge" under
the HRUS. Id. at 736. The court rejected this argument, stat-
ing:


      This $6 fee was not a direct quid pro quo for the use
      of the swimming pool. In fact, [the plaintiff ] was
      allowed the use of the pool because of her status as
      the dependent of an officer and not because she was
      paying to stay in her husband's quarters. She was eli-


                               6665


      gible to use the pool regardless of where she was
      temporarily residing.


Id.

The district court similarly rejected plaintiff's second argu-
ment, that the "sales of food and drink at the Officer's Club
bar and restaurant constitutes an indirect charge for the use of
the swimming pool." Id. at 737.


[2] In the present case, as in both Viess and Budde, the
Government did not "charge" Howard for the use of its prop-
erty. The "charge" exception to HRUS immunity does not,
therefore, apply. See Budde, 797 F. Supp. at 736-37; Viess,
634 F. Supp. at 229; see also Covington v. United States, 916
F. Supp. 1511, 1521 n.2 (D. Haw. 1996), aff'd , 119 F.3d 5
(9th Cir. 1997) ("[A]lthough the Warrens paid to use the pic-
nic area behind the beach, this fee does not trigger the charge
exception because it was not a prerequisite to Joshua's entry
onto the beach.").


Howard argues, however, that the Government imposed a
"charge" within the meaning of the HRUS because she had to
pay US Sailing $175 to take the course, and the Government
"received a direct financial benefit" because US Sailing
allowed two Government employees to take the course at a
50% discount. In so arguing, Howard misses the distinction
between the two different types of recreational use statutes
that have been passed in the various states: (1)"charge" or
"fee" statutes and (2) "consideration " statutes.


1. "Charge" or "Fee" Statutes

[3] Most states that have passed recreational use statutes
have provided that the grant of immunity will not apply if the
permission to enter the land for the recreational purpose was
granted for a "charge" or "fee." See, e.g., Ark. Code Ann.
SS 18-11-305, 18-11-307; Colo. Rev. Stat.SS 33-41-103, 33-


                               6666


41-104; Conn. Gen. Stat. SS 52-557g, 52-557h; Del. Code.
Ann. tit. 7, SS 5904, 5906; Fla. Stat. Ann.S 375.251(2)(b); Pa.
Stat. Ann. tit. 68, S 477-4; Wash. Rev. CodeS 4.24.210.


[4] Under these "charge" or "fee" statutes, most courts have
declined to apply the exception to immunity unless an actual
fee has been charged by the landowner for entry onto the land.
For example, in Jones v. United States, 693 F.2d 1299, 1300
(9th Cir. 1982), the plaintiff was injured in Olympic National
Park while snow-sliding on an inner tube she had rented from
a concessionaire. The concessionaire, located in the park on
Government property, paid the Government a fixed rental fee
and a percentage of its gross receipts. Id. at 1303.


In holding that no fee had been charged which would deny
the Government its immunity under Washington's recre-
ational use statute, this court noted that members of the public
were not charged a fee to enter onto the land or to use the
land, and that the plaintiff could have used the slope or any
other area of the park free of charge if she had brought her
own tube. Id. at 1303-04. The fee that the plaintiff had paid
was simply a fee for use of the tube, not for use of the Gov-
ernment's land. Id. at 1303. The Government was therefore
immune from liability. See id. at 1303-04.


In Flohr v. Pennsylvania Power & Light Co., 821 F. Supp.
301, 302 (E.D. Pa. 1993), the plaintiffs were fishing on the
banks of a creek in a recreational area owned by the defendant
when a tree fell and struck them. The fishing spot where the
plaintiffs were injured was within the perimeter of the defen-
dant's campground at which the plaintiffs were staying. Id. at
305. The court found that the defendant was entitled to immu-
nity under Pennsylvania's recreational use statute despite the
fact that the plaintiffs had paid a fee to use the campground.
See id. at 305-06.


The court stated that its holding did "not hinge upon what
the fee paid by the [plaintiffs] covered or did not cover." Id.
at 305.


                               6667


      Rather the . . . holding was based on the fact that the
      camping fee paid by plaintiffs was not a quid pro
      quo in exchange for permission to enter Otter Creek
      at the time plaintiffs were fishing. If plaintiffs had
      only come to Otter Creek for the day, it is undis-
      puted that they could have used the recreational
      facilities and fished at the accident site free of
      charge.


Id.

In Zuk v. United States, 698 F. Supp. 1577, 1577 (S.D. Fla.
1988), the plaintiff was injured while visiting Fort Jefferson
National Monument, a unit of the National Park System
located in Florida. No fees were charged for entrance or
admission to Fort Jefferson. Id. at 1578. The Government did
charge a $50 biannual special use permit fee for chartered sea-
planes and fishing and dive boats. Id. The Government did
not, however, charge fees to boats bringing passengers to the
Fort. Id.


The court held that the Government was immune from lia-
bility under Florida's recreational use statute. As to the plain-
tiff's argument that a "charge" was made because the air taxi
service to the Fort charged $99 for a round trip, and the air
taxi service (as well as twenty-five other boat and seaplane
charterers) had to pay the Government a $50 biannual fee, the
court stated:


      [T]his argument ignores the explicit language of the
      ["charge" exception]. There is no dispute that the
      [National Park Service], which operates Fort Jeffer-
      son, does not charge a fee for entry into the Park.
      The fact that licensing fees are charged to boat and
      seaplane charter operators or that fees are charged by
      private taxi services for transportation purposes does
      not change the fact that no charge is made for enter-
      ing or using the park area.


                               6668


Id. at 1582; see also Carlton v. Cleburne County, 93 F.3d 505,
510 (8th Cir. 1996) ("Because there was no entrance fee, or
any other fee of any kind, paid in the instant case, we con-
clude the `charge' exception to [Arkansas's recreational use
statute] does not apply."); Wilson v. United States, 989 F.2d
953, 957 (8th Cir. 1993) (holding that $2 per person/per night
fee paid by Boy Scout troop to spend the night at Army mili-
tary post was not a "charge" to enter onto the land or for use
of the land and therefore did not fall within the "charge"
exception); Kirkland v. United States, 930 F. Supp. 1443,
1446 (D. Colo. 1996) ("The [charge] definition suggests a
quid pro quo arrangement whereby the owner conditions entry
on the land upon payment of a fee.").


2. "Consideration" Statutes

Other states have passed recreational use statutes that do
not extend immunity to landowners where the permission to
enter the land for the recreational purpose was granted for a
"consideration." See, e.g., Cal. Civ. Code S 846; N.H. Rev.
Stat. Ann. S 212:34(III)(c); N.J. Stat. Ann.S 2A:42A-4(b);
Nev. Rev. Stat. S 41.510(3)(a)(2). The use of the term
"consideration" in these statutes suggests that the legislatures
intended a broad reading of the exception to immunity. See
Ducey v. United States, 713 F.2d 504, 510 (9th Cir. 1983).
Under the consideration statutes, almost any form of benefit
to the landowner will act to trigger the immunity exception.


For example, in Ducey, we held that the Government's
receipt of 1-3/4% of a concessionaire's gross annual receipts
from sales at a cafe-store and from boat slip and trailer space
rentals located in a national recreational area owned by the
Government were sufficient to be "consideration " under the
Nevada recreational use statute immunity exception. See id. at
507, 514. This was true even though the plaintiffs had not
paid a fee or charge to enter the recreational area. See id. at
507; see also Collins v. Martella, 17 F.3d 1, 5 (1st Cir. 1994)
(interpreting New Hampshire's recreational use statute immu-


                               6669


nity exception as requiring the defendant to somehow benefit
from the consideration); Hallacker v. National Bank & Trust
Co., 806 F.2d 488, 489-492 (3d Cir. 1986) (interpreting New
Jersey's recreational use statute immunity exception as apply-
ing and thus not immunizing a landowner that was paid con-
sideration by a friend of the plaintiff); Casas v. United States,
19 F. Supp. 2d 1104, 1105-08 (C.D. Cal. 1998) (interpreting
California's recreational use statute to immunize the Govern-
ment where the plaintiff, who had entered onto the Marine
Corps Air Station to participate in a 5K race that was open to
the public, did not have to pay consideration to enter onto the
base and had not yet paid the $20 entry fee for the race at the
time of her injury).


3. The HRUS

[5] The HRUS clearly falls within the "charge" or "fee"
category of recreational use statutes. As stated previously, the
HRUS extends immunity to landowners who allow others to
use their land without "charge." See Haw. Rev. Stat. SS 520-
4, 520-5(2). The HRUS defines "charge" as "the admission
price or fee asked in return for invitation or permission to
enter or go upon the land." Haw. Rev. Stat. S 520-2(4). This
is the same definition that is used by several other states in
their "charge" statutes. See, e.g., Conn. Gen. Stat. S 52-
557f(1) (" `Charge' means the admission price or fee asked in
return for invitation or permission to enter or go upon the
land."); Del. Code. Ann. tit. 7, S 5902(4) (same); Pa. Stat.
Ann. tit. 68, S 477-2(4) (same); see also  Colo. Rev. Stat. S 33-
41-102(1) (" `Charge' means a consideration paid for entry
upon or use of the land or any facilities thereon or adjacent
thereto.").


Howard's reliance on cases interpreting "consideration"
statutes in support of her argument that she was charged a
"fee" is misplaced. As we have previously recognized, the
"consideration" exception is much broader than the "charge"
or "fee" exception:


                               6670


      [T]he language of the consideration exception itself
      suggests a broad reading. . . . The exception is
      worded not in narrow terms of "fee" or "charge," but
      rather in the far more encompassing terms, "for a
      consideration." "Consideration" is a term of art, a
      word with a well-understood meaning in the law,
      embracing any "right, interest, profit or benefit."
      Used in a statute, it should be accorded that mean-
      ing. The statutory exception, then, is itself literally
      applicable to situations well beyond those involving
      a strict charging of a "fee" for "permission" to recre-
      ate.


Ducey, 713 F.2d at 510 (citations and footnote omitted).

"The interpretation of the various recreational use statutes
is controlled by the precise language of each statute." Wilson,
989 F.2d at 956. Thus, the only cases that will be applicable
in analyzing the "charge" exception to the HRUS are cases
interpreting statutes with the same language, i.e., the "charge"
statutes. We therefore look only to those cases interpreting
"charge" statutes in determining whether the Government is
entitled to immunity under the HRUS and reject Howard's
arguments that rely on cases interpreting "consideration" stat-
utes.


In summary, we agree with the district court:

      It is not enough [under the HRUS] for a landowner
      to have received a benefit in return for a third-party's
      privilege to charge people.


      [ ] Here, MWR did not charge the Plaintiff or US
      Sailing for entry onto the land. Although MWR did
      receive a reduced fee for two of its employees, Plain-
      tiff was paying for a service provided by US Sailing,
      similar to the services provided by the surf board


                               6671


      concessionaires in Viess, or the inner tube renters in
      Jones.


      [ ] The statute's purpose prevents a private land-
      owner who allows the public onto its land from actu-
      ally running a business or other venture for
      commercial profit, injuring someone and then dis-
      claiming liability. It is clear that even on the day in
      question, the Government itself did not charge any-
      one for the use of its facility, and in fact, could have
      made money if it had charged US Sailing.


[6] Because the Government did not impose a "charge" or
"fee" for Howard to enter upon and use Hickam Harbor,
Howard's use of the Government's property was "without
charge" under the HRUS.


B. "Open to the Public"

Howard argues that the dock on which Howard was injured
was closed to the nonpaying public and that the Government
is therefore not immune from suit under the HRUS.


[7] The HRUS provides immunity to landowners who
allow "any person" to use their property for recreational pur-
poses "without charge." Haw. Rev. Stat. S 520-4. The HRUS
lists three exceptions to this grant of immunity: (1) where
injury is caused by the landowner's willful or malicious
action or inaction; (2) where the landowner has charged "the
person or persons" for the use of the land; and (3) where the
injury is suffered by a "house guest" while on the owner's
land. Haw. Rev. Stat. S 520-5. The HRUS does not contain a
requirement that a landowner allow each and every individual
of the general public access and use of the land; to the con-
trary, under the plain language of the statute, unless the land-
owner charges a fee or acts maliciously or willfully, the
landowner is immunized for injury to "any person " using his


                               6672


or her land for recreational purposes unless that "person" is a
"house guest." See id.


[8] Hickam Harbor and the dock on which Howard was
injured is open to military personnel, their families and their
guests. Even if it is closed to the "general" public, the fact that
it is open to the military public without charge is sufficient to
qualify for immunity under the HRUS. See Mansion v. United
States, 945 F.2d 1115, 1117-18 (9th Cir. 1991) (rejecting
plaintiff's contention "that only land owners who allow any-
one and everyone free access to their property may claim rec-
reational immunity"); Budde, 797 F. Supp. at 735 (rejecting
argument that pool did not fall within the HRUS requirements
because it was not open to the general public); Stout v. United
States, 696 F. Supp. 538, 539 (D. Haw. 1987) (stating that the
"statute appears to apply even if the military base was closed
to the general public").


[9] The fact that Holder Dock was closed to everyone
except the instructors and students of the sailing course on the
day of Howard's injury does not strip the Government of its
HRUS immunity. The Government limited access to the dock
on that day to prevent injury to novice sailors and/or because
of the rough weather conditions. The Government can exer-
cise such control and discretion over who uses its land for rec-
reational purposes without forfeiting the immunity that the
HRUS provides. See Stout, 696 F. Supp. at 539 (recognizing
that "a landowner can control who uses his land for recre-
ational purposes," and that "[s]uch discretion should not result
in the forfeiture of the immunity that [the HRUS ] provides").


C. Applicability of HRUS Immunity to Business Invitees

Howard admits that there is no express exception in the
HRUS for business invitees; she argues, however, that the
legislative history indicates that the HRUS was not intended
to immunize businesses from liability to their business
invitees.


                               6673


[10] The language of the HRUS is unambiguous and
clearly extends immunity to any landowner who allows "any
person" to enter onto his or her land "without charge" for
"recreational purposes." Haw. Rev. Stat. S 520-4. The only
exceptions to this grant of immunity are also stated in unam-
biguous terms: (1) where injury is caused by the landowner's
willful or malicious acts or omissions; (2) where the land-
owner "charges" the person to enter or go on the land; and
(3) where the injured party is a "house guest. " Haw. Rev. Stat.
S 520-5. There is, therefore, no need to resort to the legislative
history of the HRUS in search of an exception that is clearly
not included. See United States v. Gonzales, 117 S. Ct. 1032,
1035 (1997).


D. "Recreational Purpose"

The HRUS defines "recreational purpose" as including
"hunting, fishing, swimming, boating, camping, picnicking,
hiking, pleasure driving, nature study, water skiing, winter
sports, and viewing or enjoying historical, archaeological,
scenic, or scientific sites." Haw. Rev. Stat.S 520-2(3). How-
ard was engaged in the activity of boating, an activity explic-
itly included in the definition of "recreational purpose."


Howard argues, however, that she was not engaging in a
"recreational activity" while taking the sailing course. She
claims that the sailing course was "a professional-level course
for persons who either were, or wished to become, profes-
sional sailing instructors"; that she did not interpret the course
as "recreation" because she interpreted MWR's "encourage-
ment" of her attendance "as an actual requirement that she do
so"; and that she "hoped to use this training professionally in
the future." In other words, Howard wants us to examine her
subjective intent in taking the course and engaging in the
activity of "boating" to determine whether it was "recre-
ational." Her authority for this approach is an unpublished
order of the U.S. District Court for the District of Hawaii,
Chadwick v. United States, No. 91-00138 (D. Haw. Oct. 19,


                               6674


1993) (order denying Government's motion for summary
judgment).


In Chadwick, the plaintiff was injured while taking a short-
cut across Government property on the way to a concert. The
property where the concert was being held was adjacent to the
Government's property. The court held that although attend-
ing the concert was recreational, the plaintiff's route across
Government property to get to the concert was not. Id. at 10-
11. Therefore, the court held, the Government was not
immune under the HRUS. Id. at 11. Howard relies on a single
line from Chadwick to support her argument:"[T]he relevant
focus in determining if the statute is applicable is on the intent
of the user, rather than of the landowner." Id. at 10.


Howard's reliance on Chadwick is misplaced. First,
Chadwick is inapplicable. The issue in Chadwick was ingress
and egress, where a person is injured not on the property
where the recreational activity has or will take place, but trav-
eling to or from this property. See id. The HRUS's application
to ingress or egress is not before us. Howard was actually
engaged in recreational activity at the time of her injury.


[11] Second, at least where ingress and egress are not at
issue, to determine whether a landowner will be immune from
liability under a recreational use statute, the proper focus is on
the landowner's intent. For example, in Gaeta v. Seattle City
Light, 774 P.2d 1255, 1258 (Wash. Ct. App. 1989), the plain-
tiff was injured while crossing a roadway on a dam. He
argued that his use was commercial and not recreational
because he crossed the dam to reach a resort where he could
purchase gasoline for his motorcycle. Id. The court stated:


      We find the proper approach in deciding whether
      or not the recreational use act applies is to view it
      from the standpoint of the landowner or occupier. If
      [the landowner] has brought himself within the
      terms of the statute, then it is not significant that a


                               6675


      person coming onto the property may have some
      commercial purpose in mind. By opening up the
      lands for recreational use without a fee, [the land-
      owner] has brought itself under the protection of the
      immunity statute, and it therefore is immaterial that
      [the plaintiff] may have driven across the dam in
      search of gasoline at the resort.


      Accordingly, we find that the recreational use act
      applies to the [landowner's] properties involved in
      this accident.


Id. (emphasis added).

[12] Similarly, in the present case, the Government has
opened up its property at Hickam Harbor for recreational use
without a fee. The activity of "boating" that Howard was
undisputedly involved in falls within the HRUS's definition
of "recreational activity." That Howard may have had a
"professional" motive in enrolling in the sailing course is not
relevant to the inquiry. See id.; see also Palmer, 945 F.2d at
1136-37 (rejecting plaintiff's argument that "he was engaged
in the nonrecreational activity of supervising his grand-
children" while they were swimming and that the recreational
statute did not apply because he "was not permitted to use the
swimming pool"); Silingo v. Village of Mukwonago, 458
N.W.2d 379, 382 (Wis. Ct. App.) (rejecting a subjective test
for determining whether an activity is "recreational" because
it would not serve the goal of the recreational use statute); but
see Casas, 19 F. Supp. 2d at 1107 ("Because[the recreational
use statute] applies when the person using the land has a rec-

reational purpose, and not when the landowner has such a
purpose, it applies in this case where the plaintiff came onto
defendant's land for the recreational purpose of running in a
race.").


[13] Holding that it is the landowner's intent that controls
whether the recreational use statute applies in this situation


                               6676


furthers the purpose of the HRUS of encouraging landowners
to make land and water areas available to the public for recre-
ational purposes. See Haw. Rev. Stat. S 520-1. As the Govern-
ment points out: "If land owners were required to screen each
individual entering their property to ensure that each and
every person had a proper recreational purpose so that the
HRUS applied, then landowners would not open their prop-
erty at all, defeating the purpose of the statute."


In summary, although Howard may have had professional
as well as personal reasons for taking the course, 6 her alleged
"professional" motivation does not convert her into a
"nonrecreational" user. Her subjective intent is, in this situa-
tion, immaterial.


IV.

The district court's holding that the Government is immune
from negligence liability under the HRUS is AFFIRMED.7


_________________________________________________________________
6 Howard's application form for this sailing course indicates that she was
taking the course for personal as well as professional reasons. In response
to the question of why she was taking the course, Howard listed: "Improve
instructional methods, increase sailing knowledge, skills and techniques in
dinghy boats, become competent in non-familiar boats, gain basic coach-
ing techniques, become qualified to instruct under USSA standards."
7 Because we affirm the district court's holding that the Government is
immune under the HRUS, we need not address the other issues raised by
the parties on appeal.
                               6677


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