Grand River Coop. Grazing Ass'n v. United States, CIV. 15-5087-JLV
| Decision Date | 30 June 2020 |
| Docket Number | CIV. 15-5087-JLV |
| Parties | GRAND RIVER COOPERATIVE GRAZING ASSOCIATION, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Grand River Cooperative Grazing Association is the last remaining plaintiff in this Federal Tort Claims Act case. Plaintiff brought this action alleging the United States Forest Service negligently allowed a prescribed burn on the Grand River National Grassland to become a wildfire, which consumed its privately owned lands. (Docket 1). Defendant, the United States, moved for summary judgment on the basis of an exculpatory clause in the grazing agreement between the parties. (Dockets 80 & 81). Plaintiff disputes the enforceability and applicability of the exculpatory clause. (Docket 94). Applying the plain, although broad, language of the clause, the court grants summary judgment to defendant.
The facts of the underlying dispute are summarized in the court's order resolving defendant's motion to dismiss. (Docket 46 at pp. 2-6). The court here limits itself to the facts necessary to resolve the pending summary judgment order. The court views these facts in the light most favorable to plaintiff, the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
On February 26, 2013, the parties entered into a grazing agreement allowing plaintiff's members to graze cattle on portions of the Grand River National Grassland located in South Dakota's Perkins and Corson Counties. (Docket 83-1). The agreement went into effect on March 1. Id. at p. 1. The agreement includes the following exculpatory clause:
The Association shall hold the United States harmless from all loss, expense, liability, or other obligation of any nature arising out of any accident or occurrence causing injury to persons or property and due directly or indirectly to the use and management of the National Forest System lands and improvements.
Daniel Anderson, plaintiff's current president, participated in the negotiation of the agreement as the chairman of plaintiff's Records and Files Committee. (Docket 107 at ¶¶ 1-4). He alleges the Forest Service considered the exculpatory clause "not up for negotiation . . . for legal reasons[.]" Id. at ¶ 5. Dennis Neitzke, then-Supervisor of the Dakota Prairie Grassland (which encompasses the Grand River National Grassland), also participated in the negotiations. (Docket 103 at ¶¶ 1-2). Mr. Neitzke does not recall any dispute over the exculpatory clause and notes the same clause was included in the prior grazing agreement. Id. at ¶¶ 14-15.
On April 3, 2013, the Forest Service ignited a prescribed burn on grassland in Perkins County. (Docket 95 at ¶ 6). The Forest Service only intended to burn 203 acres. Id. at ¶ 7. However, the burn escaped the Forest Service's control and became a wildfire, later dubbed the Pautre Fire. Id.; see also Docket 96-5 (Forest Service report on Pautre Fire). The Pautre Fire eventually burned 10,679 acres.1 (Docket 96-5 at pp. 5-6). At least 500 acres of plaintiff's privately-owned land burned.2 (Docket 95 at ¶ 8).
Under Federal Rule of Civil Procedure 56(a), a movant is entitled to summary judgment if the movant can "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuineissue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts which might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at 248. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, "there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88 (1986). The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Plaintiff offers three reasons why the grazing agreement's exculpatory clause does not control this case. It asserts:
The court concludes the clause is enforceable and governs this case.
"To determine the extent of the government's liability under the FTCA, [a court] look[s] to state law[.]" White v. United States, 959 F.3d 328, 332 (8th Cir. 2020). The parties agree South Dakota law governs the construction of the exculpatory clause. (Dockets 94 at p. 8 & 100 at p. 2). In Graham v. CIOX Health, LLC, 952 F.3d 972, 974 (8th Cir. 2020). A release of liability "is a contract" and is interpreted accordingly. Schaefer v. Sioux Spine & Sport, Prof. LLC, 906 N.W.2d 427, 431 (S.D. 2018). "When the language of a contract is plain and unambiguous, it is [the court's] duty to interpret it and enforce it as written." Edgar v. Mills, 892 N.W.2d 223, 231 (S.D. 2017) (internal citation omitted).
Contracts "contrary to an express provision of law or to the policy of express law . . . or otherwise contrary to good morals" are unlawful in South Dakota. SDCL § 53-9-1. "Public policy is found in the letter or purpose of a constitutional or statutory provision or scheme, or in a judicial decision." Law Capital, Inc. v. Kettering, 836 N.W.2d 642, 645 (S.D. 2013) (internal quotation omitted). The South Dakota Supreme Court "has cautioned ever since territorial days that the power of courts to declare a contract void for being in contravention of sound public policy, is a very delicate and undefined power; and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt." Domson, Inc. v. Kadrmas Lee & Jackson, Inc., 918 N.W.2d 396, 403 (S.D. 2018) (internal quotations and alterations omitted).
South Dakota has no general public policy against exculpatory clauses which immunize a party from liability for future negligence. See Wimmer v. Top Gun Guide Service, Inc., 421 F. Supp. 3d 849, 855 (D.S.D. 2019) (); Johnson v. Rapid City Softball Ass'n., 514 N.W.2d 693, 701 (S.D. 1994) () (internal quotation omitted) (Wuest, J., concurring). Domson, a recent decision by the South Dakota Supreme Court, evinces the lack of South Dakota authority for the proposition that exculpatory clauses are per se void. There, a contract between an engineer and a contractor contained an exculpatory clause immunizing the engineer from future liability for actions taken in good faith. Domson, 918N.W.2d at 399-400. The court refused to hold the clause violated South Dakota public policy, "in light of [the contractor's] failure to identify a statutory provision or scheme or judicial decision . . . to support its argument that [the exculpatory clause] is unlawful." Id. at 402-03. It declined to establish a rule either against or in favor of exculpatory clauses. Id. at 403.
The court can find no post-Domson authority establishing a South Dakota public policy against exculpatory clauses. Plaintiff points to three cases as well as secondary authority, but none of these sources are binding or persuasive.
Plaintiff first relies on Justice Wuest's concurrence in Johnson. (Docket 94 at pp. 9-11). There, a softball player signed a team roster which purported to release the municipal ballfield owner of liability for injuries incurred during play. 514 N.W.2d at 695, 99. The South Dakota Supreme Court, implicitly presuming the release was valid, reversed a grant of summary judgment for lack of evidence that the plaintiff consented to the release. Id. at 697-98. Two justices joined fully in the majority opinion. Justice Wuest concurred in the majority opinion but, writing only for himself, felt public policy concerns "militate[d] against validating anticipatory exculpatory agreements[,]" especially where the release was part of a "take-it-or-leave-it" agreement. Id. at 702-03. He would have applied a...
To continue reading
Request your trial