respectfully dissenting.
Ms. Anderson’s claim should be dismissed on the basis of the liability waiver which is valid under Colorado law. I disagree with the majority opinion to the extent it construes the United States Forest Service Permit (“Forest Service Permit”) as a contract and Ms. Anderson a third-party beneficiary.
As an initial matter, it is clear from the record that Ms. Anderson did not raise a third-party beneficiary claim nor did she contemplate such a claim. Appellee did not have an opportunity to respond and I would therefore not address the issue. Even if we reach the claim, however, I do not believe Ms.. Anderson was a third-party beneficiary of the Forest Service Permit. Under the Administrative Procedure Act (APA) a Forest Service Permit is a license. The APA provides that: a “ ‘license’ includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission.” 5 U.S.C.A. § 551(8) (1977). The Forest Service Permit falls within this definition. Similarly, the Forest Service Permit fits well within the general definition of a license. Black’s Law Dictionary at 829 (5th ed. 1979) defines “license” as: “The permission by competent authority to do an act which, without such permission, would be illegal, a trespass, or a tort.” The Forest Service Permit was such a grant of permission and was therefore, and otherwise, a simple license.
In general, a license is not a contract. United States v. Smith, 39 F.2d 851, 856 (1st Cir.1930); Black’s Law Dictionary at 829 (5th ed. 1979) (“A license is not a contract between the state and the licensee, but is a mere personal permit”); cf. Alabama Power Co. v. Federal Power Comm’n, 128 F.2d 280, 288-89 (D.C.Cir.), cert. denied 317 U.S. 652, 63 S.Ct. 48, 87 L.Ed. 525 (1942) (a license is a privilege from the sovereign). This basic rule of law makes the majority’s third-party beneficiary' analysis inapplicable. Although in some context contract law aids interpretation of Forest Service Permits, see Meadow Green-Wildcat Corp. v. Hathaway, 936 F.2d 601 (1st Cir.1991) (Forest Service not given deference in interpreting terms of a Forest Service permit), I find the majority’s analysis erroneous in this case. The majority’s view is that members of the public may sue on a contract theory for the breach of Forest Service Permits. Under this view, any member of the public who has standing may sue to enforce provisions of a Forest Service Permit that are intended to protect the public. Such a broad doctrine has serious implications and for that reason is unwise.
*867I also disagree with the scope of the majority’s discussion of Colorado law. The majority holds the Forest Service Permit is not a regulation or a statute or otherwise a law. Following this reasoning, the majority concludes Colorado law would not void as contrary to public policy a contract that contradicted a clearly expressed policy in a Forest Service Permit. The majority believes that because the Forest Service Permit is not a statute or regulation,- the public policy doctrine is not applicable. This analysis is unnecessary. Colorado law voids contracts that are contrary to public policy as clearly expressed in the law. A basic prerequisite for the doctrine, therefore, is that the policy be clearly expressed. Here, the district court concluded the policy expressed in the Forest Service Permit was unclear. The public policy exception, therefore, was inapplicable. This holding by the district court is consistent with the record and should be affirmed.
As previously stated, a Forest Service Permit may have some attributes of a contract and contract law may therefore be applicable in giving effect to. the terms of the license. On the other hand, Forest Service Permits may have some characteristics of regulations; for example, some Forest Service Permits are issued only after a period of public comment. To the extent Forest Service Permits are like regulations, it may be desirable in some instances to treat Forest Service Permits as regulations. For these' reasons, this court should limit the scope of its holding by simply finding the Forest Service Permit unclear as to whether a permittee was required to insure its patrons and thus hold the public policy exception inapplicable.