Autery v. U.S.
| Decision Date | 12 September 2005 |
| Docket Number | No. 04-35105.,04-35105. |
| Citation | 424 F.3d 944 |
| Parties | Daniel R. AUTERY, husband and the marital community composed thereof; Rita Ann Autery, wife and the marital community composed thereof; Susan Autery, A Single Woman; Joseph Balmelli, husband and the marital community composed thereof; Donna Balmelli, wife and the marital community composed thereof; Victor Belousov, husband and the marital community composed thereof; Galina Belousov, wife and the marital community composed thereof; Daniel Belousov, their minor children; Dennie Belousov, their minor children; Benton County, a political subdivision of Washington State; Benton County Pud, a municipal corporation; Thomas M. Brun, husband and the marital community composed thereof; Karen M. Brun, wife and the marital community composed thereof; Charlotte Burrus, a single woman; Kelvin Church, husband and the marital community composed thereof; Teresa Bevan-Church, wife and the marital community composed thereof, as Personal Representative for the Estate of Abigail Kimberly Grace Bevan-Church; Alexandrew Bevan-Church, their minor children; Alexandrea Bevan-Church, their minor children; Samuel Bevan-Church, their minor children; George Bevan-Church, their minor children; Susan Bevan-Church, their minor children; Kimberly Bevan-Church, their minor children; Abigail Kimberly Grace Bevan-Church, the Estate of, their minor child; Thad Coleman, a single man; Carl W. Crawford, husband and the marital community composed thereof; Myrtle F. Crawford, wife and the marital community composed thereof; Eloise M. Devine, a single woman; Sarah Durbin, a single woman; Kenneth Elliott, husband and the marital community composed thereof; Catherine Elliott, wife and the marital community composed thereof; Charles Evans, husband and the marital community composed thereof; Maxine Evans, wife and the marital community composed thereof; Cassandra Evans, a single woman; Jared Evans, a single man; John Evans, a single man; Randle Felts, a single man; Phillip Harper, husband and the marital community composed thereof; Floy Harper, wife and the marital community composed thereof; Richard Howard, husband and the marital community composed thereof; Virginia Howard, wife and the marital community composed thereof; Shannon Howard, a single woman; Mark Huntsman, husband and the marital community composed thereof; Michele Huntsman, wife and the marital community composed thereof; Michael Huntsman, their minor child; Carrie Huntsman, a single woman; William Isley, husband and the marital community composed thereof; Connie Isley, wife and the marital community composed thereof; Joey Isley, their minor son; Marla Shaffer, a single woman; Donald W. Kruger, husband and the marital community composed thereof; Lenore L. Kruger, wife and the marital community composed thereof; Timothy Lacy, husband and the marital community composed thereof; Martha Lacy, wife and the marital community composed thereof; Joshua Lacy, their minor children; Laura Lacy, their minor children; John D. Leonard, husband and the marital community composed thereof; Judy Leonard, wife and the marital community composed thereof; Kevin Leonard, a single man; Ole Leonard, husband and the marital community composed thereof; Pat Leonard, wife and the marital community composed thereof; Eric A. Mcelroy, husband and marital community composed thereof; Nancy McElroy, wife and the marital community composed thereof; Christopher McElroy, their minor children; Erin McElroy, their minor children; Brendan McElroy, a single man; Edward Neasham, a single man; Irene Neasham, a married woman aka Irene Peck; Irene Peck, a married woman; Earl Norman, husband and the marital community composed thereof; Gaylynn Norman, wife and the marital community composed thereof; Corinna Norman, their minor children; Krista Norman, their minor children; Jilllyn Norman, their minor children; Hannah Norman, their minor children; Cody Norman, their minor children; Kristin Peck, a single woman; Marty Allen Peck, a single man; Brad Roach, husband and the marital community composed thereof; Carla Roach, wife and the marital community composed thereof; Alyx Burnham, husband and the marital community composed thereof; Rachel Burnham-Roach, wife and the marital community composed thereof; Jerry Rose, husband and the marital community composed thereof; Patricia Rose, wife and the marital community composed thereof; Jack Rose, a single man; Nichole Rose, a single woman; Richard Rose, a single man; William A. Smith, a single man; Dustin Smith, his minor children; Jeremy Smith, his minor children; Charles Smith, his minor children; Victoria Smith, his minor children; Michael P. Storm, husband and the marital community composed thereof; Kathryn Storm, wife and the marital community composed thereof; Matthew Storm, their minor child; Sean Storm, a single man; Raymond Weaver, Jr., husband and the marital community composed thereof; Donzel Weaver, wife and the marital community composed thereof; John M. Zachara, a single man; Peter D. Zachara, his minor child; Amy O. Zachara, a single woman; Heather R. Zachara, a single woman; Dillon M. Zachara, a single man; State Farm Insurance Company, as subrogee for its insureds; Elmer Ainsworth; Mildred Ainsworth; W.W. Bradham; Dolores P. Bradham; Linda R. Clemensen; William T. Roberts; Mutual of Enumclaw Insurance Company, as subrogee for its insureds; John G. Cooke; P. Antoinette Cooke; Foremost Insurance Company, as subrogee for its insured; D. Davis; Ricky Huckfldt; Cathy L. Huckfeldt; Pemco Insurance Company, as subrogee for its insureds; Walter Lais; Beverly Lais; John Novak; Margaret Novak; Clifford Pendell; Marie Pendell; Jimmie Ross; Roxie Ross; Teresa Smith; Ernest Floyd; Richard E. Welch; Neil D. Zimmerman; Jane Thomas; Sanda Pierce, individually and as Personal Representative of the Estate of Robert Pierce; the estate of Robert Pierce; Robert Ranch, a Washington partnership; Brad Howard, a single man; Kevin Long, a single man; Lloyds of London, Interested Underwriters at, as subrogee for its insured; Metropolitan Mortgage, and all other persons similarly situated as a pendent class suffering damage and/or injuries; State of Washington, by and through Daniel R. Autrey, et ux., et al., as private attorney generals, and all other persons similarly situated as a pendent class suffering damage and/or insuries; Demina Klavdiya; Lyudmila Belousova, Plaintiffs-Appellants, v. UNITED STATES of America; Department of Energy; Department of the Interior; State of Washington, by and through Daniel R. Autrey, et ux., et al., as private attorney generals, and all other persons similarly situated as a pendent class suffering damages and/or injuries, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert A. Dunn, Spokane, Washington; Thomas A. Wolfe, Seattle, Washington; and William J. Flynn, Jr., Kennewick, WA, for the plaintiffs-appellants.
Rolf H. Tangvald, Assistant United States Attorney, Spokane, WA, for the defendants-appellees.
Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding. D.C. No. CV 02-05113-EFS.
Before: B. FLETCHER, GOULD, Circuit Judges, and KING, District Judge.*
Numerous individual and corporate victims of a large wildfire in southeastern Washington State appeal the district court's dismissal for lack of subject matter jurisdiction of their suit brought under the Federal Tort Claims Act (FTCA) 28 U.S.C. §§ 1346(b), 2671-80. The suit sought substantial damages, alleging, among other things, negligence against the United States in not maintaining firebreaks. The district court dismissed based upon the FTCA's independent-contractor and discretionary-function exceptions.
We agree with the district court that relevant decisions regarding fire prevention were encompassed in the government's contracts with Fluor Daniel Hanford, Inc., a.k.a. Fluor Hanford, Inc., (Fluor) and Fluor's corresponding subcontract with DynCorp Tri-Cities Services, Inc. (DynCorp). The action is therefore barred by the independent-contractor exception to the FTCA. See 28 U.S.C. § 2671 (). Because we affirm on that ground, we do not reach whether the suit is also barred by the discretionary-function exception in 28 U.S.C. § 2680(a).
The suit arises from the 24 Command Wildland Fire (a.k.a. the 24 Command Fire), which burned from June 27 to July 1, 2000. The wildfire was triggered by an automobile crash on Washington State Route 24 (SR-24). SR-24 is located on an easement over federal property granted by the United States to the State of Washington. The wildfire eventually charred some 164,000 acres of public and private lands on and near the United States Department of Energy's (DOE's) Hanford Site. The Hanford Site encompasses over 560 square miles of government property in the southeastern part of Washington in Benton County near Richland.
The Hanford Site includes within it the 120-square-mile Fitzner-Eberhardt Arid Lands Ecology Reserve (ALE Reserve or ALE). The ALE Reserve is an ecologically sensitive area with significant natural and cultural resources. The DOE transferred, or began transferring, management of the ALE to the United States Fish and Wildlife Service (FWS) in June of 1997. The terms of the transfer are set forth in a June 20, 1997, Permit and Memorandum of Understanding (MOU) between the DOE and FWS.
Specific control of the ALE is important here because the fire started on the ALE — or, more particularly, on SR-24 — and quickly spread to the ALE. Plaintiffs' primary FTCA claim is that the United States (either the DOE or the FWS) negligently maintained firebreaks near SR-24 along the ALE and such negligence caused fire to spread from SR-24 onto...
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