Esquivel v. United States

• Decision Date: 17 December 2021
• Docket Number: No. 20-35868,20-35868
• Citation: 21 F.4th 565
• Parties: Alfredo Cruz ESQUIVEL, Plaintiff-Appellant, and Donald David Willard, Plaintiff, v. UNITED STATES of America, acting through its agent Bureau of Land Management; Armando Forseca, an individual, in both his personal and representative capacities; Tom Doe, a Bureau of Land Management Employee or Contractor, in both his personal and representative capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.4th 565

Alfredo Cruz ESQUIVEL, Plaintiff-Appellant,andDonald David Willard, Plaintiff,

v.UNITED STATES of America, acting through its agent Bureau of Land Management; Armando Forseca, an individual, in both his personal and representative capacities; Tom Doe, a Bureau of Land Management Employee or Contractor, in both his personal and representative capacities, Defendants-Appellees.

No. 20-35868

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 9, 2021 Seattle, Washington

Filed December 17, 2021

William C. Schroeder (argued), KSB Litigation, P.S., Spokane, Washington, for Plaintiff-Appellant.

Joshua Dos Santos (argued) and Mark B. Stern, Appellate Staff; Joseph H. Harrington, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

Before: Ronald M. Gould, Richard C. Tallman, and Patrick J. Bumatay, Circuit Judges.

TALLMAN, Circuit Judge

"Of all the foes which attack the woodlands of North America no other is so terrible as fire."

- Gifford Pinchot, First Chief of the United States Forest Service

Appellants Alfredo Esquivel and Donald Willard appeal the district court's dismissal for lack of subject matter jurisdiction of their claims for damages brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). Fifteen acres of Appellants' property was intentionally burned by a Type 2 Incident Management Team, convened by the United States Forest Service, during a controlled burnout performed as part of the fire suppression effort to combat the approximately 217,000-acre 2015 North Star Fire in northeastern Washington. Appellants allege they relied on promises by the fire crew to use certain precautionary measures while performing the burnout, and the negligent failure by the crew to employ such measures caused unnecessary additional acreage to be destroyed by the fire.

The district court held the United States was immune from suit because the claims fell within the discretionary function exception to the FTCA's waiver of sovereign immunity, and to the extent that Appellants' claims were based on allegations that the fire crew lied to Appellants to induce consent to perform the burnout, those claims were also barred by the FTCA's misrepresentation exception. The court subsequently denied Appellants' request for jurisdictional discovery, finding that it was unlikely that any facts existed that would make the discretionary function exception inapplicable.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court's dismissal for lack of subject matter jurisdiction and denial of additional jurisdictional discovery.

I

A

On August 12, 2015, the human-caused North Star Fire began to burn on the Colville Indian Reservation in northeastern Washington.¹ The fire eventually combined with several other naturally caused fires—including the large and complex Tunk Block Fire—to form the Okanogan Fire Complex. The Okanogan Fire Complex was then the largest wildfire in Washington State's history and burned more than 300,000 acres throughout the Colville Indian Reservation, the Colville National Forest, and Okanogan and Ferry counties.

The North Star Fire was assigned to a Type 2 Incident Management Team (IMT) by the United States Forest Service, and consisted of federal, state, local, and tribal firefighters. The firefighting operations conducted by the IMT were principally governed by Chapter 5100 of the Forest Service Manual (FSM), which is devoted to wildland fire management.² The IMT included a Structure Group, led by Division Supervisor and Structure Protection Specialist Thomas McKibbin, who was then employed by the Bureau of Land Management (BLM).

On August 22, 2015, the Structure Group was assigned by the Operations Section Chief to assess potential threats to, and protect, the ranch property of Alfredo Esquivel and Donald Willard³ —an 89.7-acre parcel near Nespelem, Washington. When he reached the scene with his crew, Division Supervisor McKibbin concluded that the advancing North Star Fire posed an extreme risk to the buildings and structures on the land. McKibbin therefore ordered fire defensive measures. Specifically, McKibbin directed his firefighters to create a fire break from a two-track dirt road that ran along the property, and to employ a burnout fire⁴ near the road to widen and reinforce the break.

Before McKibbin and his team implemented the defensive measures, McKibbin spoke with Donald Willard who was then living in a motor home on the property. According to McKibbin, Willard expressed distrust of the federal government and worried that firefighters intended to excessively burn his land to save adjacent federal lands. McKibbin responded by assuring Willard that this was not the case, and that his crew was there to protect Willard's property. According to Willard, McKibbin also responded that Willard "didn't have to worry about excessive burning because he and his crew were going to spray foam around the area so that the fire could not spread very far."

Willard later swore that McKibbin "convinced" him that the team "would protect [the] property and make sure that [the] property would not be excessively burned." Willard also declared that when he was told about the foam he thought "it would be safe for [him] to leave." McKibbin swears he does not recall any discussion of foam in his conversation with Willard. He also states in his declaration before the district court that it would be highly unusual for foam to be used during a burnout because foam is typically used only to contain the advance of a wildfire , while burnouts are performed under controlled conditions and normally do not need to be contained. McKibbin also swears that if "Willard had wanted to forego a burnout, [McKibbin] would not have done one." "That would have put the entire property at extreme risk, but it was [Willard's] prerogative to take the risk if [Willard] wanted to."

After Willard consented to the burnout, McKibbin and his team began to implement the defensive measures. McKibbin stated that the fire crew "introduced a low-intensity fire along [the] fire line, which was in a remote corner of the property, and then allowed it to burn out under close observation." The crew then "secured the fire line, ceased operations, and monitored the area until [they] were confident the line would keep the wildfire from advancing through the night." The team remained on the property until "well after dark," by which point the "vegetation along the fire line had been fully consumed." After the crew ensured that any residual fire was not a threat, they left to eat, debrief with their commanders, and sleep.

Willard left the property at 7:30 p.m., when, according to him, "the only fire in sight was about a quarter mile away and was small enough that [he] could have kept it at bay alone." Willard returned to the property the next day around 7:15 a.m. He smelled propane coming from his motorhome and found the pilot light had gone out. After he attended to this threat, Willard "noticed the snapping noise of fire coming from up the hill where [McKibbin] had set up the BLM burn camp the night before." Willard rushed to the top of the hill, where he saw "an active fire consuming [his] backyard without any restriction or inhibition" and noticed "that there was no fire watch, no foam had been sprayed anywhere, and that there were no precautions taken to prevent [the] property from being completely consumed by fire." Willard asserts that he fought the fire singlehandedly from about 8:00 a.m. to 1:00 p.m., when McKibbin and his crew returned to the property.

Shortly after the fire crew returned, according to McKibbin, Willard approached him. The nature of the ensuing conversation is disputed. McKibbin alleges that Willard confronted him, claiming that the federal government was intentionally burning his private property to protect federal lands, and became aggressive to the point that McKibbin began to fear for his safety and the safety of his crew. Willard, on the other hand, maintains that he asked McKibbin why the fire was left unattended and precautions such as foam had not been used, and that he was respectful, though frustrated and concerned. After the incident was relayed by McKibbin to IMT Operations Chief Paul Delmerico, McKibbin and his crew were instructed to leave Appellants' property in order to protect firefighter safety. Willard asserts that McKibbin left without answering his questions about why foam was not sprayed or why the burnout had been left unsupervised overnight.

According to Willard, the fire set by McKibbin and his team burned 15 acres of the property, and if McKibbin had told Willard "that he was planning to abandon a burning fire on [the] property, then [Willard] would have come back to save [his] land."

B

On May 15, 2017, Appellants filed an administrative claim with the BLM, seeking $5 million in damages stemming from the fire damage to the property. Appellants alleged that their damages resulted from BLM's negligent fighting of the North Star Fire, including the negligent performance of the burnout. On November 13, 2017, BLM denied the claims on the basis that Appellants failed to provide evidence of negligence by a BLM employee and failed to provide evidence supporting their damages claim.

After exhausting administrative remedies, Appellants filed suit in the United States District Court for the Eastern District of Washington in May 2018, bringing claims under the Federal Tort Claims Act.⁵ The government subsequently filed a motion to dismiss Appellants' FTCA claims for lack of subject matter jurisdiction.

The district court granted the government's motion on February 6, 2020. The court first concluded that it "lack[ed] jurisdiction over Plaintiffs' FTCA claims because the claims fall within the discretionary function exception to the F...