Johnson v. United States

• Court: U.S. District Court — District of Utah
• Writing for the Court: Cecilia M. Romero Magistrate Judge, United States District Court
• Docket Number: 2:22-cv-00523-CMR
• Decision Date: 25 September 2024
• Citation: Johnson v. United States, 2:22-cv-00523-CMR (D. Utah Sep 25, 2024)
• Parties: MICHAEL and SARAH JOHNSON, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• topic: Administrative Law,Environmental Law,Civil Procedure

1

MICHAEL and SARAH JOHNSON, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

No. 2:22-cv-00523-CMR

United States District Court, D. Utah, Central Division

September 25, 2024

MEMORANDUM DECISION & ORDER GRANTING DEFENDANT'S [22] MOTION FOR SUMMARY JUDGMENT

Cecilia M. Romero Magistrate Judge, United States District Court

All parties in this case have consented to the undersigned conducting all proceedings, including entry of final judgment (ECF 10). 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Before the court is Defendant United States of America's (Defendant or United States) Motion for Summary Judgment (Motion (Def. Mot.), ECF 22). The court heard oral argument on the Motion at a hearing on July 11, 2024 (ECF 33). Having carefully considered the relevant filings, case law, and oral argument, the court GRANTS Defendant's Motion.

I. PROCEDURAL BACKGROUND

On August 18, 2022, Plaintiffs Michael Johnson (Mr. Johnson) and Sarah Johnson (Ms. Johnson) (collectively, Plaintiffs) initiated this action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680 (Complaint (Compl.), ECF 2). Plaintiffs' claims arise from the destruction of their real and personal property in June 2018 during a controlled burn by the United States Forest Service (Forest Service) in the Manti-La Sal National Forest that escaped containment (the Trail Mountain Fire) (Compl. ¶¶ 11, 15, 19). Plaintiffs assert the following three claims: (1) Negligence based on the Forest Service's failure to notify Plaintiffs of the controlled burn (id. ¶ 27); (2) Negligence per se based on the failure to notify (id. ¶ 32); and (3) Trespass based on the spread of the Trail Mountain Fire to Plaintiffs' property (id. ¶ 37).

On February 16, 2024, the United States filed the instant Motion seeking summary judgment on all of Plaintiffs' claims, arguing that the discretionary-function exception to the FTCA bars jurisdiction (Def. Mot. at 2). Plaintiffs filed a Response arguing the discretionary-function exception is inapplicable to their negligence claims based on the failure to notify (Response (Pl. Resp.), ECF 25 at 13-16). Plaintiffs did not address the trespass claim in their Response. The United States later filed a Reply (Reply (Def. Rep.), ECF 30) and a Notice of Supplemental Authority (ECF 34), citing to Strawberry Water Users Association v. United States, 109 F.4th 1287 (10th Cir. 2024), in further support of its Motion.

II. FACTUAL BACKGROUND^[1]

A. Regulatory Background

The National Forest Management Act, 16 U.S.C. §§ 1600-1604, requires the Forest Service to develop, maintain, and amend land and resource management plans referred to as forest plans. The 1986 Land and Resource Management Plan (1986 Forest Plan) was the forest plan in effect for the Manti-La Sal National Forest at the time of the Trail Mountain Fire. The 1986 Forest Plan authorizes prescribed burns forest-wide for fuels treatment and resource improvement. See 1986 Forest Plan at III-13, III-43.

The U.S. Secretary of Agriculture has delegated authority for administering and protecting National Forest System lands to the Forest Service. 36 C.F.R. § 200.3. Pursuant to this authority, the Forest Service has promulgated policies and directives, including the Forest Service Manual (FSM). See id.§ 200.4. FSM Chapter 5140, entitled Hazardous Fuels Management and Prescribed Fire, provides policy guidance specific to using prescribed fire to achieve desired conditions and attain management objectives. FSM 5140.2, 5140.3.

The Forest Service uses the Interagency Prescribed Fire Planning and Implementation Procedures Reference Guide (PMS 484 Guide) to create a prescribed fire program and prepare a prescribed fire plan. FSM 5142.3, 5142.6. The PMS 484 Guide provides the agency administrator the information needed to evaluate the prescribed fire plan and provides the burn boss the information needed to implement the plan. Element 9 of the PMS 484 Guide provides the standards for how pre-burn notifications are to be handled in a fire plan:

Include a list of organizations (including news media) and individuals who are to be notified prior to ignition, with information necessary to make the contacts. Reasonable efforts will be made to notify adjacent landowners (or their agents) and other potentially impacted publics. Attempts or actual notifications (or both) will be documented with date and method and placed in the project file.

The PMS 484 Guide does not define or give guidance as to what “adjacent landowners” means.

B. The Trail Mountain Fire Plan

The Forest Service manages the Manti-La Sal National Forest, a 1,413,111-acre forest that extends from central Utah to southeastern Utah and into Colorado. In 2011, Plaintiffs acquired 457 acres of private land within the Manti-La Sal National Forest in Emory County, Utah (the Property). The Property housed a custom-built cabin, outbuildings, and fencing.

In 2015, the Forest Service proposed the Trail Mountain Project to help reduce hazardous fuels, restore wildlife habitat, and reduce the risk to life (firefighters, recreationalists, and permittees) and property. The Trail Mountain Project area boundary was decided by a Forest Service interdisciplinary team comprised of the District Ranger, his staff, and multiple specialists (e.g. hydrologist, wildlife biologist, and silviculturist). The Trail Mountain Project proposed a prescribed burn of approximately 4,345 acres within the 17,115 acres of the Trail Mountain Project area. In April 2018, the District Ranger signed the Decision Memo. The Trail Mountain Fire Plan was developed by a qualified preparer, underwent a technical review, and was then signed by an agency administrator. On May 1, 2018, the Trail Mountain Fire Plan was approved.

A press release was issued by the Forest Service prior to ignition of the Trail Mountain Fire. Prior to ignition, flyers with information about the prescribed fire went out across the entire community and were posted on an information board near the prescribed fire area. ETV News published articles about the Trail Mountain Fire prior to ignition. Plaintiffs were at the Property in the weeks before the ignition.

The notification plan of the Trail Mountain Fire Plan listed contact information for those who were to be contacted prior to ignition. Plaintiffs were not listed on the notification plan of the Trail Mountain Fire Plan. The Property is approximately two miles to the east of the Trail Mountain Fire Plan perimeter. Moab Interagency Fire Center made notifications pursuant to the Trail Mountain Fire Plan on May 11 and June 4-6, 2018. Prior to ignition of the Trail Mountain Fire, notifications were made pursuant to the Trail Mountain Fire Plan.

C. The Trail Mountain Fire

On June 4, 2018, the Trail Mountain Fire was ignited by the Forest Service. On June 6, 2018, the Trail Mountain Fire escaped containment and was declared a wildfire. The Forest Service posted about the Trail Mountain Fire on Facebook on June 4, and 6-7, 2018, both before and after it escaped containment. Information about the Trail Mountain Fire was posted on utahfireinfo.gov on June 5, 7, and 8, 2018. Information was also posted on InciWeb, an interagency information management system available to the public, and InciWeb also posted on Twitter on June 8 and 10, 2018. After the fire escaped, a Wildland Fire Decision Support System (WFDSS) Incident Decision was published on June 9, 2018.

Plaintiffs did not learn of the Trail Mountain Fire until June 10, 2018, after it had escaped containment. On June 10, 2018, the Emery County sheriff called Mr. Johnson's work cell phone to let him know that there was a fire near his property. On the morning of June 11, 2018, Mr. Johnson attended a Forest Service wildfire briefing. After this briefing, Mr. Johnson drove to the Property and saw that the fire was actively burning on the Property. Plaintiffs' family cabin, heirlooms, belongings, and many acres of the Property and fencing were destroyed in the fire. The Trail Mountain Fire grew to 18,080 acres, was declared contained on June 27, 2018, and was declared out on July 28, 2018.

III. LEGAL STANDARDS

A. Summary Judgment Standard

A “court shall grant summary judgment if the movant shows 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). In making this determination, courts “examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party.” Barber ex rel. Barber v. Colorado Dept. of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (quoting T-Mobile Cent., LLC v. Unified Gov't of Wyandotte Cnty., 546 F.3d 1299, 1306 (10th Cir. 2008)). “For there to be a ‘genuine' dispute of fact, there must be more than a mere scintilla of evidence; to avoid summary judgment, the evidence must be such that a reasonable jury could return a verdict for the nonmoving party.” Aubrey v. Koppes, 975 F.3d 995, 1004 (10th Cir. 2020) (quoting Rocky Mountain Prestress, LLC v. Liberty Mut. Fire Ins. Co., 960 F.3d 1255, 1259 (10th Cir. 2020)). Thus, “mere conclusory allegations are insufficient to establish an issue of fact under Fed.R.Civ.P. 56.” Barber, 562 F.3d at 1228 (quoting Bruner v. Baker, 506 F.3d 1021, 1025 (10th Cir. 2007)).

B. Discretionary-Function Exception

As a sovereign, “[t]he United States and its officers enjoy immunity from suit except in instances where the United States has expressly waived that protection.” Flute v. United States, 808 F.3d 1234, 1239 (10th Cir. 2015). “Unless the United States waives its sovereign immunity, thereby consenting to be sued, the federal courts lack jurisdiction to hear claims against it.” San Juan Cnty. v....