dissenting.
The legislature has declared that it is the public policy of the State of Oregon “to encourage owners of land to make their land available to the public for recreational purposes * * ORS 105.676. To that end, the legislature has provided that such landowners are “not liable * * * for any personal injury, death or property damage that arises out of the use of the land for recreational purposes * * *.” ORS 105.682(1). That immunity is available, however, only if “[t]he owner makes no charge for permission to use the land.” ORS 105.688(2)(a). In this case, the majority holds that, if a landowner charges a fee for the use of one part of its land, the landowner may not assert recreational use immunity as to a user who pays the fee, even for injuries that occur on other land that is open for recreational use without any charge. In my view, that interpretation is not supported by the statutory wording and will significantly limit the immunity that *105the legislature intended to confer on landowners who make their land available to the public for recreational purposes. As a result, the legislature’s policy choice will be thwarted. For those reasons, I respectfully dissent.
Although certain facts in this case are disputed, others are not, and — based on my analysis of the legal issues— the facts that are undisputed support the trial court’s entry of summary judgment for the state. It is undisputed that plaintiffs and their friends visited Tugman State Park, that they intended to camp at one of the designated campsites at the campground there, and that plaintiffs (or their friends) paid the fee that is required to secure a campsite and were assigned campsite C22 in the campground. It also is undisputed that, although the state charges a fee for a campsite, the state charges no fee to enter the park or to use the park trails for hiking or biking. It is undisputed that, after arriving at Tugman State Park and drinking beer, plaintiff Bradley Coleman and a friend (as the complaint alleges) “decided to explore the amenities of the State Park on their mountain bikes.” They “rode down a nice wood chip trial [sic] along the lake that was open without restriction.” Along the trail, Coleman and his friend “came to a small wooden bridge that did not have a ramp on the end from which [they were] approaching.” They “lifted their bikes onto the bridge and rode across” to the trail on the other side. After proceeding up the trail on the other side “about 1/4 mile” beyond the bridge, Coleman and his friend turned around, “descended back down the trail toward the bridge,” and recrossed the bridge. Coleman rode his bike back across the bridge, but fell at the end, causing himself serious injury.
Coleman and his wife sued the state, alleging that its negligence was the cause of his injuries. In its answer, the state asserted several affirmative defenses, including the so-called “recreational use” immunity at issue on review. As noted, ORS 105.682(1) provides that “an owner of land is not liable” for injuries that “arise[ ] out of the use of the land for recreational purposes * * However, that immunity is available only if “[t]he owner makes no charge for permission to use the land.” ORS 105.688(2)(a). The majority concludes that, because “[t]he state charged a fee to camp at Tugman Park,” recreational use immunity does not apply. 347 Or at *106103. However, that conclusion is at odds with the text of the recreational use immunity statute and would produce inconsistent and anomalous results in many cases.
The majority first rejects the argument that the state relied on below and that the Court of Appeals accepted. That argument is that, because the charge that plaintiffs (or their friends) paid was not a charge to “enter or go upon the owner’s land,” see ORS 105.672(l)(a) (defining “charge” for purposes of ORS 105.672 to 105.696) (emphasis added), but rather was a charge to engage in the particular recreational use of “camping,” the fact that the state charged the fee did not preclude it from asserting recreational immunity. I agree with the majority that, as used in this statute, the word “charge” includes both “fees to enter land and fees to use land as long as that use entails moving over or on the land for a recreational purpose.” 347 Or at 101-02.
However, the majority also rejects the argument that the state makes in this court: that, because the state’s charge was for permission to use a campsite at the park, and the state does not charge a fee to enter or use the park or to hike or bike on the trails in the park, the state did not charge for permission to use “the land” where Coleman’s injury occurred. For that reason, the state argues, it may assert recreational immunity. To me, that argument is persuasive.
The relevant statute provides immunity from liability for an injury “that arises out of the use of the land for recreational purposes, * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes * * ORS 105.682(1) (emphasis added). That immunity applies only if “[t]he owner makes no charge for permission to use the land.” ORS 105.688(2)(a) (emphasis added). As I read the statute, if a landowner imposes a charge for permission to use one part of its land, the immunity does not apply to an injury that arises from the recreational use of that land. However, if the landowner does not impose a charge for the recreational use of “the land” on which a user’s injury arose, the landowner may assert recreational use immunity.
*107Plaintiffs’ position is that if a landowner charges a fee to use any part of the owner’s land, then the landowner may not assert recreational use immunity as to injuries that may have occurred anywhere on the landowner’s land. However, that reading ignores the references in the statutes to “the land” — “the land” that the landowner permits any person to use for recreational purposes, ORS 105.682(1); “the land” that is being used principally for such purposes when an injury arises, id.; “the land” that the landowner permits any person to use without a charge. ORS 105.688(2)(a). The legislature’s use of the definite article “the” suggests that the legislature did not intend the immunity (or lack of immunity) to apply to all land that may be owned by a landowner, but rather to some specific part of the landowner’s land — and immunity (or lack of immunity) will depend on whether the landowner charges a fee for the use of that specific land. The most sensible reading of the statute is that it confers immunity on a landowner for injuries that occur on the particular land that the landowner has permitted the public to use for recreational purposes, but that immunity is not available if the landowner charges a fee for the use of that particular land.
The majority cites the statutory definition of “land,” for purposes of recreational immunity, ORS 105.672(3), which provides that “ ‘[l]and’ includes all real property, whether publicly or privately owned.” That definition provides no assistance in this case. The definition makes clear that the statute applies to both public and private land and to what Oregon law includes within the term “real property”— including, for example, structures that come within the definition of real property. Here, however, no one argues that the statute does not apply because the accident occurred on property owned by the state or because it occurred on a constructed bridge, rather than on a trail. The statutory definition of “land” thus does not support the majoritys position.
The majority concedes that, if the state “had divided Tugman Park into two separate pieces of land with distinct, identifiable boundaries, one of which could be used only by persons who paid a charge and one of which was open to the public for free,” 347 Or at 104, then the state might be able to *108assert recreational immunity as to injuries that occur on the “free” land.1 The majority concludes, however, that the state did not divide “the land” in a way that would permit it to assert immunity for Coleman’s injury, which occurred on a bike trail that anyone could use for free, when it had charged him (or his friends) for the use of a campsite.
The majority’s conclusion seems to rest upon one of two premises, neither of which is persuasive. First, the majority states that “[a]s campers, plaintiffs were entitled to use all of Tugman Park, including its bike trails,” 347 Or at 103, and concludes that recreational use immunity does not extend to a bike trail that those who pay camping fees are permitted to use. The majority’s position ignores the fact that, although, as campers, plaintiffs were entitled to use the entire park, including the bike trails, they would have been entitled to use the bike trails (and all the rest of the park except the campsites and the separately rented yurts and gazebo) even if they had not been campers and even without paying any fee — like all other members of the public. Thus, under the majority’s reasoning, if a person decides to rent a campsite (or to rent the gazebo), the state may not assert recreational immunity as to injuries suffered by that person while riding on a bike trail, but the state may assert such immunity as to a person who does not rent a campsite and who incurs an identical injury in an identical place on the land. For example, under the majority’s theory, if a friend of Coleman’s making a day visit to Tugman Park, for which there is no charge, had joined Coleman on his bike ride, and both had been injured on the same bridge, the state could assert recreational immunity as to Coleman, but not as to the friend. That anomalous result is inconsistent with the immunity statute and with the public policy underlying it.
Alternatively, the majority opinion could be read to suggest that if the state had posted notices or otherwise clearly delineated “the land” for which a charge was imposed for recreational uses from “the land” for which no charge was *109imposed, then the state might be able to assert recreational immunity as to injuries that arose from recreational activities on the latter. The statute, of course, makes no reference to notices, signs, or fences. It simply states that, if there is no charge for recreational use of “the land,” the immunity may be asserted as to injuries that occur on “the land.” As I read the summary judgment record, Coleman’s injury occurred when he was using “the land” for which the state makes no charge — that is, the bicycle trail in Tugman State Park that is described in the complaint. As noted, it is undisputed that the state makes no charge for the day use of the park or the use of the trails. It charges for campsites, extra vehicles at overnight campsites, and rental of yurts or the gazebo. Maps that are part of the summary judgment record show that the campsite where plaintiffs stayed is in a distinct location from the trail over Clear Creek where the accident occurred. Plaintiffs’ campsite was in the “campground,” a separate area with a registration booth at the entry point, showers, and restrooms. The complaint itself, quoted above, describes Coleman’s ride away from the campground — down a wood chip trail along the lake, and across a bridge.
The summary judgment record demonstrates that Coleman’s accident did not occur at the campsite for which he or his friends were charged a fee — or at the campground where the campsite was located. It did not occur on “the land” for which the state charges a fee for those who want to engage in recreational activities there. Rather, the accident occurred on a trail some distance away from the campsite. It occurred on “the land” that the state permits the public to use for recreational purposes without a fee. For that reason, the state may assert the recreational immunity defense available under ORS 105.682(1). I dissent from the majority’s contrary conclusion.
Kistler and Linder, JJ., join in this opinion.Arguably, the state did just that. A person who fails to pay the fee for a campsite may not stay at the campground. As discussed in the text, the maps in the summary judgment record and the allegations in the complaint make clear that the campground is separate from the bike trail where Coleman was injured.