(dissenting).
I respectfully dissent. The majority misconstrues Minn.Stat. § 3.736, subd. 3(h), to shield the state from liability for losses occurring outside the outdoor recreation system. Assuming subdivision 3(h) does grant immunity to the state in this case, that grant amounts to a violation of equal protection under U.S. Const, amend. XIV, § 1, and Minn. Const, art. 1, § 2. It further violates Minn. Const, art. 1, § 8, which provides, “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character.”
1. Stressing that subdivision 3(h) shields the state from “[a]ny loss arising from the construction, operation, or maintenance of the outdoor recreation system,” the majority concludes that the statute unambiguously immunizes the state from injuries incurred by both users and non-users of the outdoor recreation system. That construction ignores the elementary canon *496that statutes must be construed as a whole. See Owens v. Federated Mutual Implement and Hardware Insurance Co., 328 N.W.2d 162, 164 (Minn.1983); Underhill v. State, 208 Minn. 498, 500, 294 N.W. 643, 644 (1940). Read as a whole, subdivision 3(h) is certainly ambiguous, and I submit that the only sensible construction would limit its application to those using the outdoor recreation system.
Despite the broad “any loss arising from” language, the legislature carved an exception whereby the state would be liable “for conduct that would entitle a trespasser to damages against a private person.” Application of the standard of care owed a trespasser necessarily implies that the injury must occur in the recreational area. A trespasser, by definition, is one who enters land of another without consent. To apply that standard of care to injuries occurring outside the recreational area, as the majority has done, is illogical. By creating the exception cited above, the legislature logically intended that the subdivision would apply only to losses incurred by those using the recreational area. Accordingly, I would conclude that the state was not immune from suit under subdivision 3(h) in the circumstances presented.
2. Assuming the majority correctly construed subdivision 3(h) to apply here, that grant of immunity would be unconstitutional. This court has long been troubled by the únjustified disparate treatment of victims injured by government tortfeasors. See Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975); Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962). In response to Spanel and Nieting, the legislature enacted the Municipal Tort Liability Act (Minn. Stat. § 466) in 1963, and then the Minnesota Tort Claims Act (Minn.Stat. § 3.736) in 1976. Those acts codified the abolition of sovereign immunity, asserting a right “where the state, if a private person, would be liable to the claimant,” with certain enumerated exceptions.
Recently, this court addressed the question of whether preferential treatment accorded government tortfeasors by those acts violates the equal protection clause in U.S. Const, amend. XIV, § 1. The equal protection clause “requires that a legislative classification apply uniformly to all those similarly situated; that the distinctions separating those who are included within the classification from those who are excluded are not arbitrary or capricious, but instead are real and substantial; and that the classification is consonant with a lawful purpose.” Kossak v. Stalling, 277 N.W.2d 30, 34 (Minn.1979). In Kossak, we struck down the one-year statute of limitations provided for in the Municipal Tort Liability Act, Minn.Stat. § 466.05, subd. 3 (1971), for denying equal protection of the laws. We held that there existed no rational basis for a one-year limit where notice also had to be given, and thus the claimants were entitled to the six-year limitations period enjoyed by victims of private tortfeasors. 277 N.W.2d at 35.
In the instant case, when applied to a loss occurring outside the outdoor recreation system, subdivision 3(h) draws a distinction between governmental and private tortfeasors and consequently distinguishes between victims of governmental and nongovernmental wrongdoers.1 In upholding subdivision 3(h) against appellants’ equal protection challenge, the majority opinion suggests two ways in which the shield afforded by that statute rationally furthers the purposes underlying the outdoor recreation act. While the majority applies the appropriate standard of review, neither of the suggested justifications is tenable.
First, the majority opinion claims that “[tjort immunity preserves the state’s freedom to manage the areas in the best interests of the state and its citizenry.” The express language of subdivision 3(h) undercuts any reliance upon that justification. *497While management of the area would be protected under the discretionary immunity exception to liability provided by subdivision 3(b), subdivision 3(h) does not shield the state from losses arising from management decisions. Rather, by its terms, it shields the state from losses “arising from the construction, operation, or maintenance of the outdoor recreation system.” (Emphasis added.) As such, although the majority’s reasoning may rationally support application of the discretionary immunity exception to liability, it bears no rational relationship to the immunity afforded by subdivision 3(h) and, therefore, fails to provide an adequate justification under the equal protection clause.2
Second, the majority contends, “It is not unreasonable for the state to limit its liabil-' ity for bodily injury to injuries caused by conduct of the kind that would permit a trespasser to sue a private person,” because “[njatural conditions are to be expected in a recreational area, and the owner should not be required to patrol the area or to make it safe for those who enter upon it.” There may be a rational basis for shielding the state from liability to those using the recreation system, due to the dangers inherent in a system open for public hunting, fishing, trapping, and other recreational activities. That justification, however, has no application where, as here, the loss occurred outside the recreational system. Therefore, while that justification may provide a basis for immunizing the state from loss incurred by a user, it does not afford a proper justification for immunizing the state from the harm inflicted on non-users.
The reasons proffered by the majority fail to justify immunizing the state from liability to non-users. The only possible reason for immunizing the state from liability to non-users would be to lessen the impact of tort liability upon the public coffers. Such reasoning resurrects the disavowed sovereign immunity doctrine. Significantly, in abolishing state tort immunity, this court denounced the sovereign immunity doctrine as being an unjustifiable “exception to the fundamental concept of tort law that liability follows tortious conduct.” Nieting, 306 Minn, at 128, 235 N.W.2d at 601. Indeed, in Kossak, we expressed doubt whether there could ever exist a proper basis for distinguishing between victims injured by a private tort-feasor and those injured by a government tortfeasor. 277 N.W.2d at 34-35 n. 6. In the instant case, I would conclude that there exists no rational basis for the classification created by applying subdivision 3(h) to the circumstances presented here.
In conclusion, if appellants are able to prove that the state was negligent in constructing, operating, or maintaining the holding ponds located within the outdoor recreation system, the state should be held liable for its negligent acts. Accordingly, I cannot join the majority’s decision which unjustifiably denies appellants a remedy for their injuries as mandated by the Minnesota Constitution.
. In contrast, if private landowners permit their land to be used, without charge, by the public for beneficial recreational purposes, they are afforded essentially the same protection as the state with respect to users of their land. See Minn.Stat. §§ 87.0221, 87.023, 87.025 (1982).
. It could be argued that the word "operation” includes management. However, recent decisions undercut such an argument. In construing the discretionary immunity exception to tort liability, we settled on the planning-operational distinction as a guide to determine whether discretionary immunity applies. See Cairl v. State, 323 N.W.2d 20, 23 n. 2 (Minn.1982); Larson v. Independent School District No. 314, 289 N.W.2d 112, 120 (Minn.1980). That definitional dichotomy precludes the word "operation” from being construed as synonymous with management. Management implies planning what to construct, how to operate or when to maintain, but does not include the implementation of those activities. Finally, the allegedly tortious conduct at issue here was operational and, therefore, the state would not be immune from suit under the discretionary immunity exception for the allegedly negligent acts committed at the operational level.