Frank Moscato named Portland, Oregon Lawyer of the Year for 2011 in Professional Malpractice Law by Best Lawyers®

Best Lawyers®, the oldest and most respected peer-review publication in the legal profession, has named Frank A. Moscato as the “Portland, Oregon Best Lawyers Professional Malpractice Lawyer of the Year for 2011.”

The lawyers being honored as “Lawyers of the Year” received particularly high ratings in Best Lawyers® surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity. Only a single lawyer in each specialty in each community was honored as the “Lawyer of the Year.”

Best Lawyers® compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 17th edition of The Best Lawyers in America© (2011) is based on more than 3.1 million detailed evaluations of lawyers by other lawyers.

Steven Naifeh, President of Best Lawyers, says, “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Frank A. Moscato on being selected as the ‘Portland, OR Best Lawyers® Professional Malpractice Lawyer of the Year’ for 2011.”

2010 Small Business Jobs Act for Closely Held Businesses

The recently enacted Small Business Jobs Act of 2010 is a mixed-bag, but there are likely to be some changes which impact you now. The act was signed into law on Monday, September 27, 2010.

The act is an assorted collection of various miscellaneous tax deductions, small business loan changes, offset tax increases, and other provisions intended to benefit closely held businesses of a variety of sizes. Some of the provisions are retrospective for the 2010 tax year.

Rather than summarize the full act, this newsletter focuses on those provisions which are more likely to affect a typical closely held businesses. To categorize the medley of the act’s provisions, this newsletter is organized by the type of impacted business activity: (1) financing, (2) equipment and start-up purchasing, (3) selling assets or stock, (4) benefit planning, and (5) owning and operating real estate.


Changes to SBA Loans. SBA guaranteed loans are more attractive to lenders and businesses. The act increases the loan limits for 7(a) loans, the most common and basic loans guaranteed by the Small Business administration. SBA 504 guaranteed loan limits, for fixed asset loans, are increased to $5.5 million, and microloans are increased to $50,000. Through December 31, 2010, the amount guaranteed for 7(a) and 504 loans is increased to 90%, and borrower fees are eliminated. This may pave the way for a business or project to obtain previously unavailable financing.

Funding to Regional Banks. The Department of Treasury is authorized to purchase preferred stock and other debt instruments from certain depositories, banks, savings and loan, and community development loan funds with less than $10 billion in assets. The cost of funds to the financial institution is reduced to as low as 1% if small business lending by the financial institution is increased. It remains to be seen how many banks will harness this program.

Equipment and Start-up Costs

Increased Bonus Depreciation for Equipment Purchases. The effective cost of certain depreciable property, such as new equipment, is reduced for tax year 2010 and 2011, encouraging equipment and software upgrades. “Bonus” depreciation of 50% of the cost of certain depreciable property is reinstated for tax year 2010 and is extended to some long-term contracts. Bonus depreciation had previously expired and is set to expire after tax year 2010.

Increased Section 179 Expensing. Businesses can elect to expense the costs of certain machinery, equipment, and software. The limit on expenses subject to deduction is increased from $250,000 to $500,000, and the reduction in that limit occurs when the investment exceeds $2,000,000, instead of $800,000 under prior law. Like with bonus depreciation, this provision reduces the cost of acquiring certain new property and applies only to tax year 2010 (except for some computer software for tax year 2011).

Increased Start-Up Cost Deductions. Qualified start-up expenses may be deducted. The amount that can be deducted for tax year 2010 is increased to $10,000, reduced according to a phase-out schedule when start-up costs exceed $60,000, decreasing the cost of starting-up a new business in tax year 2010. The former deductible amount was $5,000, phased out at $50,000. The more favorable structure is currently available only for tax year 2010. Cell Phone Deductions. Cellular phones are “delisted” so that the cost can be deducted and depreciated like other business property without the recordkeeping requirements associated with listed business property.

Stock and Assets

Incentive to Purchase Stock in Certain C Corporations. The amount of capital gain subject to tax is reduced for some stock sales, providing an incentive to purchase stock in a qualifying business. Specifically, 75% of the gain from the sale of stock is excluded, if the stock is purchased after February 17, 2009 and before January 1, 2011, is held for five years, and is of a subchapter C corporation under the Internal Revenue Code whose assets do not exceed $50 million and that meets other active business requirements. The amount of excluded gain from a sale of such stock under the new act is increased to 100%. Because this applies only to C corporations, the incentive is not available to a wide range of other business entities. Incentive to Transfer Assets out of Converted C-to-S Corporation. The holding period required to be exempted from the 35% built-in gains tax is reduced, encouraging the immediate transfer of assets out of corporations that were previously converted from a C corporation to an S corporation. Previously, gain on certain assets held in a converted corporation had to be held for 10 years to avoid the built-in gains tax. This time period had already been reduced for tax years 2009 and 2010 to 7 years, if the 7th year of the holding period was before tax year 2009 or 2010, respectively. The act further reduces this to 5 years.

Benefit Planning

Health Insurance Costs Deductible for Owner-Employees. The act permits the cost of health insurance to be deducted for the purposes of calculating self-employment taxes for tax year 2010. This deduction was previously not permitted and effectively reduces taxes for most self-employed business operators.

Ability to Convert to Roth Accounts. Retirement plans can be amended to permit rollovers from 401(k), 403(b), and government 457(b) accounts into Roth accounts; governmental 457(b) plans can now also include Roth accounts. This can be attractive for individuals who anticipate being in a higher tax bracket in the future, as distributions from Roth accounts are generally tax-free in the future, with the trade-off of having to make contributions now on an after-tax basis and having to pay tax on the rollover amount. For rollovers made in 2010, an election can be made to pay the tax in 2011 and 2012.

Real Estate

Increased Tax Deductions for Capital Improvements. More capital expenditure costs can be written off immediately, providing an incentive to make tenant improvements and improvements to restaurant and retail properties. For 2010 and 2011, up to $250,000 in capital expenditures can be deducted instead of depreciated, phased-out once the capital expenditures exceed $800,000. The former amount subject to deduction was $25,000, phased out at $200,000. This encourages the acceleration of these kinds of projects.

Increased Burden of Tax Reporting for Rental Property Expenses. To offset tax benefits in the act, landlords are now required to file information returns with the IRS and service providers for certain rental property expenses in excess of $600. The penalties for failing to file information tax returns are increased, but some landlords can be exempted from this requirement. This provision increases the reporting and recordkeeping costs for owners of rental properties.

Required Tax Disclaimer And Additional Tax And Professional Advice

Because of the variables associated with each of these new laws, you should consult with advisors to determine whether you can capitalize on these opportunities. Indeed, Internal Revenue Code Circular 230 requires us to disclose that this is not a reliance opinion. This is not intended or written by us to be used, and it cannot be used by you, for the purpose of avoiding penalties that may be imposed on you or another taxpayer, and you should consult directly with your tax and accounting professionals.

Our attorneys have experience in all of these areas. If you have questions about the 2010 Small Business Jobs Act or how it may apply to your circumstances, please do not hesitate to contact our closely held business attorneys John T. Witherspoon, Randall L. Duncan, David D. Denecke, or Jonathan D. Mishkin, and we would be pleased to help.

John T. Witherspoon
Portland Office: (503) 242-0000
Direct Line: (503) 417-6014
[email protected]


1001 SW Fifth Avenue
16th Floor
Portland, OR 97204-1116
Phone: (503) 242-0000
(800) 315-4172
Fax: (503) 241-1458

360 E 10th Avenue
Suite 300
Eugene, OR 97401-3273
Phone: (541) 485-0220
(800) 315-4172
Fax: (541) 686-6564

333 High Street, NE
Suite 200
Salem, OR 97301-3632
Phone: (503) 371-3330
(800) 315-4172
Fax: (503) 371-5336

Nothing in this communication creates or is intended to create an
attorney-client relationship with you, constitutes the provision of
legal advice, or creates any legal duty to you. If you are seeking
legal advice, you should first contact a member of the Closely Held
Business Team with the understanding that any attorney-client
relationship would be subsequently established by a specific written
agreement with Harrang Long Gary Rudnick P.C. To maintain
confidentiality, you should not forward any unsolicited information
you deem to be confidential until after an attorney-client relationship
has been established.

HLGR ranked among Best Law Firms in Four Areas

We are proud to announce that, in a joint survey by U.S. News & World Report and Best Lawyers of America©, published in September 2010, HLGR received a first tier ranking as a Best Law Firm in the specialty areas of Administrative/Regulatory Law, Employment Law (Management), Labor Law (Management), and Professional Malpractice Defense.

This joint survey ranked law firms both nationally and by metropolitan area based on information collected from 1,859 law firms, 9,514 clients (including all Fortune 100 companies and 587 of the Fortune 1000 companies), and over 39,000 individual leading attorneys. In this, its inaugural year, the survey did not rank law firms in Appellate Law, an area in which four HLGR attorneys have been individually recognized for the past two consecutive years as Best Lawyers in America© — the most individually recognized attorneys of any Northwest law firm in this specialty area.

HLGR Labor & Employment Law team to attend National Human Resource Management Association (NHRMA) Conference and Tradeshow

Attorneys from Harrang Long’s Labor & Employment Group will have an exhibition booth at the National Human Resource Management Association (NHRMA) Conference and Tradeshow on September 29 and 30 at Sun River Resort, Sunriver, Oregon, Make sure you stop by and visit, pick up some free literature on employment law updates, and learn more about the firm and the broad range of labor and employment related legal services we can provide. We hope to see you there! For more information on the NHRMA Conference and Tradeshow, go to their website at

Sharon Rudnick, Mark Amberg and Kate Watkinson to Lead Panel Discussion at a Conference of the Oregon Chapter of the Public Risk Management Association (PRIMA)

On October 8, 2010 from 10:30 am – 11:45 am, Sharon Rudnick, Mark Amberg and Kate Watkinson will lead a panel presentation and discussion of recent labor- and employment-related decisions of the Oregon and United States Supreme Court.  The PRIMA conference will be held at the Eugene, Oregon Hilton Hotel on October 6-8, 2010.  Download a summary of the federal and state court decisions that will be discussed during this panel presentation

Public Records Law / Trade Secrets

Public Records Law/ Trade Secrets
Working with government agencies can be a lot like selling your parrot to the town gossip. Once you’ve shared a trade secret with the government, you can’t be sure who will end up hearing about it.

That’s one of the challenges when laws mandating “transparent” government intersect with a business’s need to protect trade secrets from its competitors. And, as a result of changes in the interpretation of the Oregon Public Records Law and proposals for tightening the exceptions to that law, the conflict between open government and business imperatives is bound to sharpen. If you are a government contractor or are required to submit information to a government regulator or licensing agency, you need to be aware of recent trends in the law. We also provide a few tips for survival in an increasingly “transparent” public/private environment.

“Transparency” & “Trade Secrets”
Governments routinely collect sensitive information from businesses and individuals. Trade secrets. License examination test results. The amount of goods and services your business produces. Bank account numbers you provide the government to facilitate transfer of funds. Every document that a government uses is defined by the Oregon’s Public Records Law to be a “public record.”

The Oregon Legislature has enacted hundreds of exceptions overriding for specific documents the general rule requiring public disclosure of public records. The Oregon Attorney General shares with District Attorneys and the courts the duty of interpreting and applying these exceptions. Until earlier this year, Attorneys General had ruled “trade secrets” submitted by businesses to governments unconditionally protected from public disclosure. Now, according to an interpretation issued by Attorney General John Kroger’s office in April, 2010, governments must publicly disclose information defined to be “trade secrets” by the Uniform Trade Secrets Act whenever “the public interest requires disclosure.” The big change: businesses can’t be as sure as they might have been in the past that their confidential business information will be protected by government agencies.

Look Forward to Increased Transparency
The new ruling is consistent with calls by the Attorney General and several newspapers to limit
exceptions to the Public Records Law. Proposals to narrow or repeal exemptions to the Public
Record’s Law certainly will be advanced in January, 2011 when the next session of the Oregon
Legislature convenes.

Specific proposals to force public disclosure of more public records have not yet been publicly
released by the Attorney General or by legislators. The Government Law Department of Harrang
Long Gary Rudnick will continue to monitor these developments. In the meantime, businesses can
take some action to protect trade secrets from public dislcosure.

Tips & Suggestions

• Even if you don’t approve of the trend in the law, consider whether you can turn the Public
Records Law to your advantage. Perhaps you’d like to inspect information a competitor has
submitted to the government?

• Minimize the volume of trade secrets you submit to the government. Sometimes governments
seek more information from businesses than the agency needs to carry out its mission.

• Consider segregating and prominently labeling trade secrets you submit to a government.
That puts the recipient on notice of your concern and may help the agency justify rejecting a
public records request for your trade secrets.

• Recent and impending changes in the Public Records Law should cause regulated businesses
and private partners of governments to consult attorneys to help craft individualized

Our attorneys know government and closely held businesses. If you have any questions about
the Public Records Law and its effect on trade secrets, please contact Randall L. Duncan or David
Denecke of our closely held business group, or Pete Shepherd of our Governmental Law Department.
We’d be pleased to help.

Randall L. Duncan
Portland Office: (503) 242-0000
Direct Line: (503) 417-6010
[email protected]

Peter D. Shepherd
Salem Office: 503-371-3330
Direct Line: 503-371-8004
[email protected]

David R. Denecke
Portland Office: (503) 242-0000
Direct Line: 503-417-6002
[email protected]


1001 SW Fifth Avenue
16th Floor
Portland, OR 97204-1116
Phone: (503) 242-0000
(800) 315-4172
Fax: (503) 241-1458

360 E. 10th Avenue, Suite 300
Eugene, OR 97401-3273
Phone: (541) 485-0220
(800) 315-4172
Fax: (541) 686-6564

333 High Street, N.E.
Suite 200
Salem, OR 97301-3632
Phone: (503) 371-3330
(800) 315-4172
Fax: (503) 371-5336

Nothing in this communication creates or is intended to create an attorney-client relationship with you, constitutes the provision of legal advice, or creates any legal duty to you. If you are seeking legal advice, you should first contact a member of the Closely Held Business Team with the understanding that any attorney-client relationship would be subsequently established by a specific written agreement with Harrang Long Gary Rudnick P.C. To maintain confidentiality, you should not forward any unsolicited information you deem to be confidential until after an attorney-client relationship has been established.

Randy Duncan on Panel of Experts at Business Succession Planning Summit

On Wednesday, September 22nd, from 7:30am – 9:00am, Randy Duncan will serve on a panel of experts that will discuss why succession planning is important to your business and how to utilize succession planning to create new opportunities. The Summit will be held at George Fox University – Portland Campus. Download the Business Succession Planning Summit Flyer for more information.

The Best Lawyers in America© 2011

HLGR is pleased to announce that Bill Gary, Susan Marmaduke, Jim Mountain, Sharon Rudnick, Jens Schmidt and Frank Moscato have been named in several categories in the 2011 edition of The Best Lawyers in America©.

Bill Gary: Administrative Law, Appellate Law, Commercial Litigation

Susan Marmaduke: Appellate Law

Jim Mountain: Appellate Law

Sharon Rudnick: Appellate Law, Labor and Employment Law

Jens Schmidt: Eminent Domain and Condemnation Law

Frank Moscato: Professional Malpractice Law

For 28 years, Best Lawyers® has come to be regarded – by both the legal profession and the public – as the definitive guide to legal excellence in the U.S. The new 2011 Best Lawyers®, their 17th edition, is based on a rigorous national survey involving more than 3.1 million detailed evaluations of lawyers by other lawyers.

Gary, Marmaduke and Moscato honored by the U.S. District Court of Oregon Historical Society

Bill Gary, Susan Marmaduke and Frank Moscato have been named by the U.S. District Court of Oregon Historical Society as among the most distinguished trial lawyers in Oregon. Each year the Society honors a group of people who have contributed to the rich history of the Oregon Courts. This year’s recognition is in honor of distinguished trial lawyers in Oregon. Those selected have been identified as individuals who consistently exhibit a high level of trial advocacy and skill, as well as professionalism and integrity.

The Capitol Mall Dispatch

Volume 1, Second Quarter, 2010


Employees’ personal use of on-line social networking, text messaging and email is a fact of life in many workplaces. Two recent cases illustrate the importance of having policies clearly addressing permissible and non-permissible use of employers’ electronic systems. City of Ontario v. Quon, 560 U.S. ____ (2010). On June 17, 2010, the U.S. Supreme Court ruled that a city police department’s audit of inappropriate text messages sent by its officers on department issued pagers was reasonable and did not violate the Fourth Amendment. The Court rejected the Ninth Circuit’s ruling that the employees had a reasonable expectation of privacy regarding the text messages and that the messages could not be viewed without the employees’ consent. The search was motivated by a legitimate work-related purpose and was reasonable in scope. The Court declined to make a broad holding concerning employees’ privacy expectations while using employers’ electronic systems, noting that such a ruling “might have implications for future cases that cannot be predicted.”

Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 990 A.2d 650 (2010). On March 30, 2010, the New Jersey Supreme Court ruled that an employee had a reasonable expectation of privacy in email communications she had with her attorney through her personal, password-protected, web-based email account using her employer’s computer. The ambiguous language of the employer’s personnel policy regarding electronic communications was insufficient to put the employee on notice that she did not have a reasonable expectation of privacy in the emails.

Readers should consult with their legal counsel before implementing an electronic communications policy.


Oregon’s statewide land use planning system has been in a constant state of change since its inception in 1973. Measures to repeal or curtail governments’ authority reached the ballot in 1976, 1982 and 1998. In 2000, Measure 7 was passed, requiring compensation be paid when a land use regulation restricted the use of property and decreased its value.

Measure 7 was declared unconstitutional, but it spawned Measure 37 (2004). Measure 37 allowed government to avoid paying compensation by “waiving” the offending regulation. Claims flooded in but few yielded on-the-ground development.

In 2007 voters approved Measure 49, substantially replacing Measure 37 and limiting the scope of development for retroactive claims to residential uses. Measure 49 did much to restore stability to the land use planning program. It permits Measure 37 claimants to elect to construct a limited number of residences on the claim property. DLCD received 4,652 Measure 49 “elections” in the initial round, almost all of which sought three or fewer homesite approvals. Less than one percent of claim decisions have been appealed.

Measure 49 resolved many of the issues that Measures 37 exposed, but challenges and changes will continue. In February 2010, the legislature enacted SB 1049 to grant limited development rights for about 800 Measure 37 claimants who had filed claims only with a county, and another 85 or so who had tried but failed to gain approval for up to 10 homesites under Measure 49. SB 1049 also clarified the relief available to about 700 claimants who acquired their property after adoption of the statewide land use goals in 1975, but before their county’s comprehensive plan had been acknowledged.

Whether it be transfer of development rights, urban reserves and rural preserves, or climate change, practitioners and policy makers need to stay engaged in the always-evolving issues around land use planning in Oregon.


The United States Supreme Court issued orders framing important cases for consideration next Term, including:

1. U.S. Chamber of Commerce v. Candelaria (09-115). Are Arizona statutes imposing immigration-related burdens on employers preempted by federal law?

2. Janus Capital Group v. First Derivative Traders (09-525). Can a person who drafts a false prospectus be civilly liable under federal law even though the person did not issue the security?

3. CIGNA Corp. v. Amara, et al. (09-804). Showing required to entitle ERISA beneficiaries to recover benefits for alleged variance between plan and description of plan.


State agencies usually have the power to enact administrative rules. Some are required to engage in rulemaking. Except in emergencies, agencies must conduct a public hearing and set a final date for public comment before enforcing a proposed rule. For further information about any of the following, please contact Jane Leonhardt ([email protected]). The public comment period recently closed for all of the following:

Adopt-A-Highway/Noxious Weeds. Implements HB 2424 (2009), expanding the Adopt-A-Highway program described in ORS 366.158 to include removal of noxious weeds. Oregon Department of Transportation.
Conforming State Health Insurance Continuation To Federal Subsidy Qualifications. Implements HB 2433 (2009), extending the period of eligibility for state health insurance continuation coverage from six to nine months. Department of Consumer and Business Services. Federal economic stimulus funds provide subsidies for up to nine months of coverage. These proceedings established permanent rules in place of a series of temporary and previously-existing rules.

Biometric Data Collection. Improves reliability of facial recognition software. Department of Transportation. Under ORS 807.024 and ORS 801.163, DMV uses facial recognition technology to determine if an applicant for renewal of a license is the same person previously licensed under that identity and if the person has ever been issued a license under another identity. The system requires a clear view of the iris and pupil of each eye. The new rules require applicants to remove their glasses when photographed for a driver license, driver permit or identification card. The proposed rule also requires the applicant to remove any clothing or similar material covering the person’s face, and any head covering, unless the head covering is being worn for medical or religious reasons.

Hospice Licensing. Implements SB 161 (2009), establishing licensing and operational standards for hospice programs. Department of Human Services, Public Health Division. The rules define the Public Health Division’s procedures for licensing, handling complaints, investigations of complaints, surveys, and discipline for hospice programs by assessing a civil penalty.

DCBS Public Records Requests. Amends procedures and fees for public records requests. Department of Consumer and Business Services. Public bodies may “establish fees reasonably calculated to reimburse the public body for the public body’s actual cost of making public records available . . . .” ORS 192.440(4)(a).


In 2008, the United States Supreme Court struck down a District of Columbia law banning the possession of handguns in the home. District of Columbia v. Heller, 554 U.S. __ (2008). On June 28, 2010, the Court extended its ruling to the states and local political subdivisions. McDonald v. Chicago, 561 U.S. __ (2010). The majority of a divided court held that the Second Amendment limits state legislatures and municipalities with the same force it applies to Congress. Although the Court’s opinion will trigger litigation nationwide, previously established law likely will mute McDonald’s impact in Oregon.

In relevant part, the Second Amendment provides “the right of the people to keep and bear Arms, shall not be infringed.” Two cities in Illinois (Chicago and Oak Park) effectively banned handgun possession by local ordinance. The plaintiffs alleged that they had a federal constitutional right to “possess a functional, personal firearm, including a handgun, within the home.” They argued that Chicago and Oak Park had infringed their right to keep and bear arms in violation of the Second Amendment.

Although the Court agreed with the plaintiffs, it did so on terms that leave the door open for continued regulation of firearms. For example, it wrote that the Second Amendment “limits (but by no means eliminates) [the States’] ability to devise solutions to social problems that suit local needs and values.” The Court placed the term “limits” in italics.

The clearest implications of the Court’s opinion are consistent with Oregon law. The Court clearly ruled out of bounds state laws or local ordinances purporting to ban the possession of handguns “in the home.” Twenty-eight years ago the Oregon Supreme Court construed Oregon’s constitutional “right to bear arms for the defence (sic) of themselves, and the State” (Article I, Section 27) to similarly bar a “total proscription of the mere possession of certain weapons.” At the other end of the spectrum, the Court ruled clearly in bounds prohibitions on the possession of firearms by felons and the mentally ill, in “sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms.” Likewise, the Oregon courts have upheld against state constitutional attacks numerous regulations on the possession of firearms.

For McDonald to have effect in Oregon, the challenged regulation would have to be consistent with the Oregon Constitution but inconsistent with the Second Amendment as construed in McDonald. For this reason, McDonald is unlikely to provide the rule of law in most Oregon cases.


Selected highlights from Governor Kulongoski’s “Reset Cabinet.”

Crime and Public Safety:

• Modify sentencing guideline system.

• Adopt the federal earned time system.

• Adjust Ballot Measure 11 mandatory minimum sentences.

K – 12 Education:

• Create shared services models for school districts for functions such as technology and business services.

• Reorganize Education Service Districts.

• Expand online learning options.

Post-secondary Education:

• Improve retention and graduation rates.

• Expand need-based aid.

Labor Costs:

• Create statewide collective bargaining for schools.

• Reduce employer contributions to employee IAPs.

• Increase state and local employee contributions to the cost of their health insurance.
Revenue Stability:

• Create an emergency reserve fund, funded by modifications to Oregon’s “kicker law.”
The full report may be viewed at:



Recent changes to Oregon law modify the result of a 2009 Oregon Supreme Court opinion to allow landowners to charge a fee for recreational use of a portion of their land, while retaining immunity for the remainder of their land if they comply with certain requirements.

Before the change, ORS 105.682(1) appeared to immunize landowners from certain civil liabilities when they permitted recreational users to enter their land. That immunity was available only if the owner “makes no charge for permission to use the land[.]” ORS 105.688(2)(a).

On September 24, 2009 the Oregon Supreme Court decided Coleman v. Oregon Parks and Recreation Department, which held that under ORS 105.688 and related statutes, the state lost immunity from suit by a plaintiff who was injured while riding a bicycle at Tugman State Park. Because the plaintiff had paid a fee to camp on a portion of the park, the Court found that the state had lost immunity for all other recreational use on all of the land.

The Legislature passed HB 3673 in response. The bill amended ORS 105.688 in three significant ways. HB 3673 became effective on March 10, 2010.

First, landowners may charge a fee for certain recreational activities on part of their property, without waiving immunity for the remainder, provided they comply with certain notice requirements. Landowners are required to give notice either by posting, or as part of a receipt, of the portion of land that is subject to a charge, and the immunities provided for the remainder of the land. ORS 105.688(4) and (8)(b).

Second, a landowner may also charge for a limited recreational use of the land, and still retain immunity for all other recreational uses of the land, if the landowner provides the required notice. ORS 105.688(4) and (8)(a).

Finally, a landowner may charge a parking fee of $15 or less per day without losing recreational immunity. ORS 105.672(c).

Thus, the changes to Oregon’s recreational immunity statutes provide a way for landowners to charge for certain uses, charge for use of certain lands, or charge a small parking fee, without waiving immunity from other civil liabilities.

Pete Shepherd, Editor Shareholder

Harrang Long Gary Rudnick P.C.
[email protected]

Harrang Long Gary Rudnick is pleased to publish this edition of the firm’s Capitol Mall Dispatch. We hope you enjoy learning about developments at the intersection of law and public policy.

This issue includes articles from Harrang Long Gary Rudnick attorneys Ben Miller (recreational immunity), Andrea Nagles (labor law) and Aaron Landau, who contributed to our article on the Second Amendment.