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Attorneys for both sides debate: parking fee or usage fee?

NEWS-TIMES FILE PHOTO - Michael Garcia-Ixtacua, 13, and his nephew Jeremy Scholl, 3, drowned at Hagg Lake in August 2014, along with Jeremys mother, Gabriela Ixtacua-Castano, 25, and grandmother, Jova Garcia-Ixtcua, 42. Mark Bocci spent nearly a year and a half preparing to sue Washington County for the August 2014 drownings of four family members in Hagg Lake, which is operated by the county.

The wrongful death complaint involved big questions about moral and legal responsibility. Should the county have specifically warned visitors about dangerous dropoffs at the Sain Creek Picnic Area, one of the most popular spots to swim and wade?

Should the doomed family members have been more careful in the water, knowing they couldn't swim — or done more to educate themselves about the geology of the lakebed when they visited the park?

But the question that has apparently convinced Washington County Circuit Court Judge Andrew Erwin to dismiss the case is smaller and more technical: Was the fee the victims paid when they entered the park a usage fee or a parking fee?

If it was simply a parking fee, the county might have "recreational immunity" from any liability, based on a state law that protects landowners who offer use of their land to the public free of charge for recreational purposes.

If it was a recreational usage fee, the county could potentially be found negligent if a jury decided county officials failed to appropriately warn visitors of the danger.

Erwin hasn't yet issued his formal order of dismissal but Bocci is already planning to appeal the ruling, a process he estimates will take a year-and-a-half to two years.

He noted that the state's recreational-immunity statute has never been clearly defined or challenged so there is very little case law in Oregon to suggest how it should be interpreted. The appellate court will likely break new ground as it considers and rules on this case, he said.

"There's very honest disagreement about whether this is a use pass or a parking pass," he said.

Bocci said his argument on that issue fell apart when Erwin decided the rules related to evidence prohibited Bocci from submitting about 80 percent of the evidence he'd collected to prove the Washington County Parks 2014 admission sticker on Gabriela Garcia's car on the day of her fatal visit was a user fee, not a parking fee.

"We wanted to put on evidence all the way back to 1973 that Reclamation (the federal agency which leases the land to the county) called it a use fee, including in the 2004 management plan by the county, where it's a 'use entrance' fee," Bocci said.

After the near-drowning — and dramatic, widely publicized rescue — of eight children, all non-swimmers who stepped over that same dropoff in 2012, Bocci said, county officials changed the description and began calling the entrance fee a "parking pass" in 2013. Bocci contends the county did so in order to claim immunity in case of any future accidents.

According to Washington County spokesman Philip Bransford, "the history of charging a parking fee at Scoggins Valley Park has always been to require a payment for individuals seeking to park a vehicle in the parking lot. The fee is charged regardless of how many passengers may be in the vehicle. That has not changed."

In addition, those who hike or jog or ride a bike to the park are not charged a fee and never have been, Bransford said.

Bocci notes the park is "eight miles from anywhere" and that few cyclists or joggers get to the park that way.

Bocci also argued that if it's a parking fee, the money collected (an average of $446,000 per year from 2014 to 2016) should be spent on parking lots. But Erwin ruled there is no legal requirement for how funds collected from parking fees must spent, said Bransford, noting that money reflects less than half the park department's overall revenue needed for operations.

"The judge, in good faith, saw it differently," Bocci said.

That was a different outcome than back on Nov. 29, when the two sides brought the same arguments before Washington County Circuit Court Judge Eric Butterfield, who ruled the fee question was for the jury to decide.

"Working up a case like that takes a tremendous amount of stress and time and money," said Bocci, who now looks forward to the Appeals Court providing greater clarity on the recreational immunity issue.

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