Garcia v. United States

• Citation: 526 F.Supp.3d 576
• Decision Date: 18 March 2021
• Docket Number: No. CV-20-00220-PHX-MTL,CV-20-00220-PHX-MTL
• Parties: Susana Villanueva GARCIA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Arizona

526 F.Supp.3d 576

Susana Villanueva GARCIA, et al., Plaintiffs,

v.UNITED STATES of America, Defendant.

No. CV-20-00220-PHX-MTL

United States District Court, D. Arizona.

Signed March 18, 2021

Jesse Morgan Showalter, Joel B. Robbins, Lauren E. Channell, Robbins & Curtin PLLC, Phoenix, AZ, Zachary Evan Mushkatel, Mushkatel & Becker PLLC, Sun City, AZ, for Plaintiffs.

Elizabeth Kay Sichi, US Attorneys Office, Phoenix, AZ, for Defendant.

ORDER

Michael T. Liburdi, United States District Judge Before the Court is Defendant United States of America's ("United States") Motion to Dismiss for Lack of Subject Matter Jurisdiction (the "Motion") (Doc. 20). This Motion was discussed at oral argument. The Court resolves the Motion as follows.

I. BACKGROUND

This case involves tragic facts. In June 2017, the Highline Fire burned over 7,000 acres of land near Payson, Arizona. (Doc. 17 ¶¶ 20–21.) This fire incinerated vegetation and trees on national forest land in the Mongollon Rim area. (Id. ¶ 21.) More than 900 firefighters battled the Highline Fire. (Id. ¶ 22.) The Highline Fire specifically hit the Ellison Creek watershed, which is part of the Tonto National Forest. (Id. ¶¶ 24–25.) Many adjoining waterways that were impacted by the fire fed into Ellison Creek, which in turn would then flow downstream "into the public recreation areas along it." (Id. ¶ 26.) "One such public recreation area is the Water Wheel area, a popular and easily-accessed hiking and swimming area with waterfalls, a swimming hole, large boulders, and sheer canyon walls." (Id. ¶ 27.)

As the fire raged, the United States Forest Service (the "Forest Service") assembled an interdisciplinary Burned Area Emergency Response ("BAER") team, "whose purpose was to assess risks to life, property, and natural and cultural resources and to recommend emergency response actions to reduce the anticipated consequences of those risks." (Id. ¶ 31.) The Forest Service issued an order closing the Highline Trail from Dry Dude Creek to Ellison Creek on June 23, 2017. (Doc. 23-7 at 2.) The purpose of this order was, in part, to protect the public's health and safety from flash flooding. (Id. ) A Forest Service hydrologist released a Water Resources Specialist Report (the "Water Report") on July 2, 2017. (Doc. 20-5 at 15.) The Water Report sought to identify certain post-wildfire threats and to suggest "treatments to prevent, mitigate or reduce the severity of the threats." (Id. ) After considering many factors, such as watershed conditions and pre- and post-fire peak flows, the Water Report observed that the "first few high intensity storms following the fire pose the greatest flash flood hazard to downstream areas." (Id. at 18–19.) The Water Report concluded with an "Emergency Determination," which noted "[t]hreats to downstream life and property from post-fire watershed conditions" and "[t]hreats to life and safety on the Highline and Myrtle trails that pass through and below the burdened area from flash flooding." (Id. at 21.)

After the fire was contained, on July 6, 2017, the BAER team completed its initial and interim reports (collectively, the "BAER Report"). (Id. at 25–45.) The BAER Report outlined many things, including critical threats, emergency treatment objectives, and probabilities of treatment success. (Id. ) This assessment noted two debris jams on Ellison Creek toward the Highline Trail and three to four other debris jams in another creek. (Id. at 5.) The BAER Report requested funding "for estimated emergency stabilization funds." (Id. at 25.) This included funding for two additional flash flood warning signs for a road approximately seven miles from Cold Springs. (Id. at 3, 7–8.) This assessment did not recommend closing national forest lands that included the Water Wheel site or Cold Springs. (Doc. 15-2 ¶ 26.)

On July 15, 2017, the Garcia and Garnica families decided to celebrate a birthday by swimming near the Water Wheel recreational site at the Cold Springs. (Doc. 17 ¶ 40.) Several members of those families arrived at the Water Wheel parking lot in three separate vehicles. (Id. ¶¶ 41–42.) The Forest Service charged $9.00 per vehicle for visitors to use the Water Wheel recreation area. (Id. ¶ 43.) Somebody in the group paid a total of $27.00 by depositing that amount "in a designated drop box." (Id. ¶¶ 44–46.)

There were no specific flash flood warning signs at the Water Wheel site.¹ (Id. ¶¶ 49, 51.) There were signs at a kiosk which contained warnings to swim "AT YOUR OWN RISK" and to "[b]e aware of changing weather conditions." (Id. ¶ 50; Doc. 20-6 at 7, 9.) All the family members hiked to, and swam at, the Cold Springs swimming hole. (Doc. 17 ¶ 52.) Everyone was unaware of the heavy rains that began to fall eight miles upstream. (Id. )

At 1:45 PM, the National Weather Service ("NWS") dispatched a flash flood warning for the region that includes the Cold Springs swimming hole. (Id. ¶ 53.) "Many people, including the Garcia family, remained in the Water Wheel area, apparently unaware" of the flash flood alert. (Id. ¶ 55.) Then, "[w]ithout warning, a black wall of water, logs, rocks, mud, and debris descended on the Water Wheel area, moving far too fast for those in its path to escape." (Id. ¶ 56.) Although a few people "were able to grab onto trees or rocks and make their way to safety," a total of ten people "were swept away by the wall of debris and died in the flood." (Id. ¶¶ 57–59.) The Forest Service closed this area after the flood. (Id. ¶ 61.)

Plaintiffs Susana Villanueva Garcia and her brother, Julio Cesar Garcia, (collectively, the "Garcias" or "Plaintiffs") brought this action against the United States. (Doc. 17.) Ms. Villanueva Garcia also brings this action on behalf of all statutory beneficiaries of Selia Garcia Castaneda, her mother, and J.L.V., her daughter. (Id. )

II. LEGAL STANDARD

This case involves tort claims against the federal government. Accordingly, the Federal Tort Claims Act ("FTCA") governs the issues presented. Motions to dismiss based on an exception to the FTCA's waiver of sovereign immunity are treated as motions to dismiss for lack of subject matter jurisdiction and reviewed under Rule 12(b)(1) of the Federal Rules of Civil Procedure. McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988) ("The question whether the United States has waived its sovereign immunity against suits for damages is, in the first instance, a question of subject matter jurisdiction."). While the plaintiff has the burden of showing that it has alleged facts within the FTCA's waiver of immunity, the United States bears the burden of proving the applicability of an exception to the waiver of immunity under the FTCA. Bailey v. United States , 623 F.3d 855, 859 (9th Cir. 2010) ; Prescott v. United States , 973 F.2d 696, 701–02 (9th Cir. 1992).

III. DISCUSSION

The Garcias assert two causes of action under the FTCA: (1) negligence/gross negligence and (2) wrongful death. (Doc. 17 ¶¶ 68–85.) The Garcias allege that the United States is liable under four separate negligence theories: (1) "[f]ailing to warn individuals in the Water Wheel area of the potential for flash floods, including by posting appropriate signs at the Water Wheel parking lot and/or the adjacent trailhead;" (2) "[f]ailing to warn individuals in the Water Wheel area of the NWS flood alert that was issued on July 15, 2017;" (3) "[f]ailing to close the Water Wheel area to the public after the NWS flood alert was issued on July 15, 2017;"² and (4) "[f]ailing to take reasonable steps, such as removing floatable debris, to mitigate the danger posed by the residual effects of the Highline Fire in Ellison Creek." (Id. ¶ 74.) The United States argues that the FTCA's discretionary function exception bars the Garcias’ first negligence theory, failing to place appropriate flash floods signs. (Doc. 20 at 3–8.) The United States also contends that all of the Garcias’ negligence theories fail under the FTCA's private party analogue requirement because their simple and gross negligence claims are barred by Arizona's recreational use statute. (Id. at 8–17.)

The United States enjoys sovereign immunity; it cannot be sued without its consent and such consent is a prerequisite for jurisdiction. Conrad v. United States , 447 F.3d 760, 764 (9th Cir. 2006). The FTCA "constitutes a limited waiver of that immunity." LaBarge v. Mariposa Cnty. , 798 F.2d 364, 366 (9th Cir. 1986). In one instance, the FTCA waives sovereign immunity "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) ; see also 28 U.S.C. § 2674 ("The United States shall be liable ... relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ...."). "The FTCA's broad waiver of sovereign immunity is subject to a number of exceptions, including the discretionary function exception." Nanouk v. United States , 974 F.3d 941, 944 (9th Cir. 2020). This statutory exception preserves the United States’ sovereign immunity for any claim based on a discretionary function. See 28 U.S.C. § 2680(a). The United States argues that both the existence of a discretionary function and a private party analogue that shields it from liability and amounts to two jurisdictional hurdles that the Garcias cannot overcome. The Court will address each argument in turn.

A. Discretionary Function Exception

Courts follow a two-step test to determine whether the discretionary function exception applies. First, courts ask whether the challenged act or omission was a discretionary one—that is, whether it "involve[d] an element of judgment or choice." Berkovitz v. United States , 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The discretionary function exception does not apply when an applicable "statute, regulation, or policy specifically prescribes a course of action." Id. "If the...