Bear Medicine v. USA., 99-35665

Citation241 F.3d 1208
Decision Date07 March 2001
Docket NumberNo. 99-35665,99-35665
Parties(9th Cir. 2001) MARLYS BEAR MEDICINE, as co-personal representative of the estate of Leland Kicking Woman; DELORES IRON SHIRT, as co-personal representative of the estate of Leland Kicking Woman; GEORGE KICKING WOMAN; MOLLY KICKING WOMAN; MARLYS BEAR MEDICINE, individually and as guardian of Tanielle Kicking Woman and George Lee Kicking Woman, II; DANA MURRAY, as guardian of Brandi Kicking Woman, Susan Kicking Woman, Lissa Kicking Woman, and Leland Kicking Woman, Jr., Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, acting by and through the Secretary of the Department of Interior, Bureau of Indian Affairs, Defendant-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Monte D. Beck, Beck & Richardson, Bozeman, Montanta; Joe Bottomly, Bottomly Law Offices, Kalispell, Montana, for the plaintiffs-appellants.

David W. Odgen, Acting Assistant Attorney General, Washington, D.C.; Sherry S. Matteucci, U.S. Attorney, Washington, D.C.; Mark B. Stern and Steven I. Frank, United States Department of Justice, Washington, D.C., for the defendant appellee.

Appeal from the United States District Court for the District of Montana Paul G. Hatfield, District Judge, Presiding. D.C. No.CV-95-00100-PGH

Before: Arthur L. Alarcon, Warren J. Ferguson, and M. Margaret McKeown, Circuit Judges.

FERGUSON, Circuit Judge:

Leland Kicking Woman, a male member of the Blackfeet Indian Tribe (the "Tribe"), was fatally injured when a tree fell on him at a logging site on the Blackfeet Indian Reservation in Montana. Kicking Woman's descendants and executors filed an action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. SS 2671-2680, against the United States. In granting the Government's motion for summary judgment, the district court held that Plaintiffs failed to state a cause of action under Montana law and, even if a cause of action were stated, the discretionary function exception to the FTCA barred the suit. We hold that Plaintiffs have stated a cause of action under Montana law and that the discretionary function exception does not apply. We reverse the district court.


Federal statutes and regulations give the Department of the Interior, acting through the Bureau of Indian Affairs (the "BIA"), responsibility for the management and preservation of the forests located on the Blackfeet Indian Reservation. 25 U.S.C. SS 406-407; 25 C.F.R. S 163. 1 No logging activities may take place on the reservation without the authorization of the BIA, which furnishes contracts for the transaction, approves the sale, and reserves for itself the power to super-vise, warn, fine, or suspend operations not complying with contractual terms.

In 1993 the BIA authorized a contract between the Blackfeet Tribe and Bailey Peterson, d/b/a Lone Bear Logging ("Lone Bear"), for a timber operation on the Blackfeet Reservation. The contract contained a safety provision and reserved for the BIA the right to inspect and suspend Lone Bear's operation should it fail to comply with the contract.2 A BIA forestry technician inspected the logging site regularly.

On October 6, 1993, plaintiff Leland Kicking Woman, a member of the Blackfeet Tribe, came to the Lone Bear logging site to "try out" to replace a worker who been injured. No safety training was ever given during the "try out," which consisted of the injured employee watching Kicking Woman cut down trees.

Afterwards, Kicking Woman and the injured employee walked over to the foreman, Quinton New Robe, who was cutting down a tree. New Robe directed the two men away from him, in the opposite direction of where he intended the tree to fall. The logging operation was in an area noted for its high winds, which makes it particularly difficult to predict where a tree will fall. Neither the BIA nor Lone Bear had a formal "wind closure" policy, and although winds had already blown other trees off course on the same day, the Lone Bear crew had continued cutting. A gust of wind caught the branches of the tree felled by New Robe, sending it towards the two men. Kicking Woman saw the tree falling towards them and pushed his companion out of the way, but was himself struck by the upper branches of the tree.

Few, if any, members of the Lone Bear crew had been formally trained in basic safety procedures and none had been trained in first aid. Kicking Woman was driven to the hospital where he was diagnosed with a spinal cord injury that left him virtually immobile. He remained in the hospital for over nine months, eventually dying from complications from his injuries.

Plaintiffs, who include the personal representatives of Kicking Woman's estate, the guardians of his minor children, and his parents, filed this action in United States District Court against the United States, as represented through the BIA. They asserted a claim under the FTCA for the BIA's alleged negligence in (1) authorizing the Lone Bear contract, (2) failing to adequately inspect and manage the logging site, (3) failing to ensure that appropriate safety measures weretaken, and (4) failing to ensure, under the Contract Service Act and Federal Acquisitions Act, that Lone Bear provided his employees with workers' compensation insurance.

The United States joined Lone Bear in the litigation. Lone Bear subsequently reached a settlement with Plaintiffs. Plaintiffs and the Government filed cross-motions for summary judgment. The district court granted the Government's motion and held that it did not have jurisdiction over Plaintiffs' claims because the actions of the BIA were protected under the discretionary function exception to the FTCA. It further held that neither the doctrine of inherently dangerous activity nor the United States' fiduciary relationship with the Tribe created a cause of action for Plaintiffs under Montana law. Plaintiffs filed this appeal.

For reasons discussed below, this court reverses.


We review a grant of summary judgment de novo . Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999). A district court's determination that it lacks subject matter jurisdiction under the FTCA and a district court's application of the discretionary function exception are also reviewed de novo . Foster v. United States, 923 F.2d 765, 767 (9th Cir. 1991); Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1021 (9th Cir. 1989). Finally, we review de novo a summary judgment determination of whether an activity is inherently dangerous. Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994).


The FTCA provides a limited waiver of the United States' sovereign immunity for torts committed by government employees acting within the scope of their employment "under circumstances where the United States, if a private person, would be liable to the claimant" under applicable law. 28 U.S.C. S 1346(b). The Act serves to enhance government accountability, eliminate the need for private bills seeking individual relief, and allocate loss across the federal taxpaying public. United States v. Muniz, 374 U.S. 150, 154 (1963); Platis v. United States, 288 F. Supp. 254, 274 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).

The FTCA's waiver of immunity is limited by a number of exceptions. 28 U.S.C. S 2680. One of these is the discretionary function exception, which was held by the trial court to bar all claims against the Government in this case. This provision exempts from liability

[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C.S. S 2680(a). The discretionary function exception is meant to avoid judicial second-guessing of governmental decisions. It is not, however, intended to create inconsistent liabilities between private and government employees performing identical acts. Thus, "in cases where the government is alleged to have committed negligence in the performance of a function such as that performed by a private citizen, rather than in the fulfillment of a broad policy-making duty, the government is subject to suit." Faber v. United States, 56 F.3d 1122, 1124 (9th Cir. 1995). See also United States v. S.A. Empresa de Viacao Aereo Rio (Varig Airlines), 467 U.S. 797, 813 (1984) ("it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case"). The burden of proving the applicability of the discretionary function exception is on the United States. Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992).

The test for determining whether the discretionary function exception applies was set out by the Supreme Court in Berkovitz v. United States, 486 U.S. 531, 536, 539 (1988). First, this Court must "consider whether the action is a matter of choice for the acting [government] employee." Id. at 536. An action specifically prescribed by a "federal statute, regulation, or policy" is not within an agent's discretion and therefore not subject to the exception. Id. Discretion may be either affirmatively conferred or tacitly implied. United States v. Gaubert, 499 U.S. 315, 324-25 (1991). In the present case, we must ask whether applicable federal standards either explicitly or implicitly gave the BIA discretion regarding its authorization and management of the Blackfeet timber contracts.

The second prong of the Berkovitz test asks whether the challenged action involved a policy judgment. The exception is meant to protect "political, social, and economic judgments" that are the unique province of the Government, notall decisions involving some discretion. Berkovitz, 486 U.S. at 539 (quoting Varig Airlines, 467 U.S. at 820). We have held, for example, that actions based on...

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