McDaniel v. US

• Decision Date: 18 September 1995
• Docket Number: Civ. A. No. 9:95 CV 58.
• Citation: 899 F. Supp. 305
• Parties: B.H. McDANIEL, and Louise McDaniel Banks v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Texas

899 F. Supp. 305

B.H. McDANIEL, and Louise McDaniel Banks v. UNITED STATES of America.

Civ. A. No. 9:95 CV 58.

United States District Court, E.D. Texas, Lufkin Division.

September 18, 1995.

John C. Fleming, James R. Cornelius, Lufkin, Texas, Paul M. Seby, Mountain States Legal Foundation, Denver, CO, for plaintiffs.

Ruth Harris Yeager, U.S. Attorney's Office, Tyler, Texas, Paul F. Figley, Brenda M. Green, U.S. Dept. of Justice, Torts Division, Washington, DC, for defendant.

MEMORANDUM AND ORDER

HANNAH, District Judge.

Before the court is the Motion to Dismiss the United States pursuant to Fed.R.Civ.P., 12(b)(1), and 12(b)(6), alleging that the court lacks subject matter jurisdiction over the United States and that Plaintiffs have failed to state a claim upon which relief can be granted.¹ For the reasons given below, the court finds that the Motion is well taken and should be GRANTED.

I. BACKGROUND

Plaintiffs, B.H. McDaniel and his sister, Louise McDaniel Banks, brought suit under the Federal Tort Claims Act ("FTCA") alleging damages to their property as a result of a Southern Pine Beetle infestation which spread onto their property from the adjacent Indian Mounds Wilderness Area ("IMWA") of the National Forest in Sabine County, Texas. Plaintiffs allege that the United States, through the Department of Agriculture, United States Forest Service ("USFS") knew, or should have known, of the hazards to Plaintiffs' land posed by the Southern Pine Beetle infestation in the IMWA and negligently failed to eliminate the hazard or issue warnings to Plaintiffs. Jurisdiction is claimed pursuant to the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq.

The government moved to dismiss the suit for lack of subject matter jurisdiction on the ground that the agency actions fell within the discretionary function exception of the FTCA and that Plaintiffs have failed to allege a duty owed to them by the United States under state law, a prerequisite to suing under the FTCA.

II. FACTS

Plaintiffs are owners of approximately 100 acres of timberland in Sabine County, Texas, adjacent to the IMWA, which is owned and managed by the Department of Agriculture, USFS. During 1992 and 1993, Dendroctonus frontalis, commonly known as the Southern Pine Beetle ("SPB"), destroyed over 12,000 acres of pine forest in five East Texas wilderness areas. The SPB has the capacity to spread rapidly. Their infestations can kill every pine in their path at a rate of up to 50 feet per day. During SPB outbreaks, a significant percentage of timber losses occur in large, expanding infestations called "hot spots" which are the primary target of SPB control tactics.

Plaintiffs contend that Defendant's policy permits the buildup of explosive SPB spots within wilderness areas before an infestation reaches the quarter mile boundary adjacent to private land and that at such an intensity, these spots are impossible to control. During June and July, 1992, SPB spots were being monitored and charted by the USFS and came within the quarter mile zone relative to Plaintiffs property. Plaintiffs' private forester discovered a large infestation spreading from the IMWA onto Plaintiffs' land and began preventive control measures on Plaintiffs' property to mitigate the losses. These measures failed and the damages to Plaintiffs' land amounted to $106,956.00.

Among the specific acts of negligence which Plaintiffs allege are the following: permitting the SPB to spread in uncontrollable size and intensity within the IMWA, permitting the SPB infestations to migrate onto Plaintiffs' adjacent land, failure to carry out Defendant's own SPB control program pursuant to the Environmental Impact Statement ("EIS") and Environmental Assessment ("EA"), and failure to warn Plaintiffs.

III. DISCUSSION

The United States moves to dismiss Plaintiffs' claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. On a 12(b)(1) motion, challenging the jurisdiction of the court, the burden lies with the party invoking the court's jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942). In evaluating whether subject matter jurisdiction exits, the court accepts all uncontroverted, well-pleaded factual allegations as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court may freely consider extrinsic materials submitted by the parties to satisfy itself that jurisdiction is proper because "a court may not ... extend its jurisdiction where none exists," Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2179, 100 L.Ed.2d 811 (1988). Rule 56 summary judgment standards are inapplicable to such an inquiry. See Osborn v. United States, 918 F.2d 724 (8th Cir.1990).

The State Law Claims

Defendants assert that Plaintiffs have failed to allege a duty owed to them under the laws of Texas. The Fifth Circuit has recently affirmed that the FTCA requires a state law duty. The FTCA makes the United States liable in tort "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674 for certain damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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).

Defendants assert that because the Indian Mounds Wilderness Area is not subject to regulation by the state of Texas, the United States cannot be held liable under Texas Statutes. § 135b-6 Texas Codes Annotated, commonly known as the Texas Structural Pest Control Act, provides that each owner of forest land shall control the forest pests on land owned by him or under his direction. The United States argues that the United States Forest Service is bound by federal law which has precedence over state statutory law. The Constitution of the United States provides that "Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const., Art. IV, § 3, cl. 2. In Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 2291, 49 L.Ed.2d 34 (1976) the Court stated that Congress' complete authority over the public lands included the power to regulate and protect the wildlife living there.

Defendant may be correct that if sued directly under the Texas Pest Control Act, the United States could claim exemption due to the hierarchy of laws theory, but that analysis begs the question here. The proper question, in the court's view, is whether 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) (emphasis added). It is clear that, if a private person, the United States could be held liable under Texas statutory law which imposes a duty upon owners of forest land to control forest pests on land owned by him or under his direction. See, Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir.1995). Accordingly, the court finds that the Government's motion to dismiss for failure to state a duty is not well taken.

The Discretionary Function Exception

The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) et seq., is a limited waiver of the government's sovereign immunity which is subject to jurisdictional exceptions and exclusions. These exceptions and exclusions must be strictly construed in favor of the United States. Atorie Air. v. F.A.A., 942 F.2d 954, 958 (5th Cir.1991). The foremost exception is the "discretionary function" exception, § 2680(a) which provides that there shall be no liability under the FTCA on

any 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 is abused.

The United States claims that the acts and omissions complained of by Plaintiffs are discretionary functions which fall within the exception. Plaintiffs claim that the acts and omissions are not of the type of conduct protected because the USFS operational personnel failed to follow the USFS's own procedures in the IMWA. Plaintiffs claim that the USFS's course of conduct was specifically prescribed by established procedures and that the USFS field personnel had no discretion to deviate from the prescribed procedures.

After the Federal Tort Claim Act was passed as part of the 1946 Legislative Reorganization Act, the United States Supreme Court reviewed its first discretionary function case, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In Dalehite 8500 plaintiffs sought $200 million in damages as a result of the explosion of two ships loaded with fertilizer-grade ammonium nitrate in Texas City, Texas. The plaintiffs claimed negligence in the manufacture, bagging, shipping and storage of the ammonium nitrate, which was destined for the European recovery program, and negligent firefighting by the Coast Guard. The Court held that discretion included more than the initiation of programs. "Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable." Id. at 36, 73 S.Ct. at 968. The Court concluded that the challenged decisions were "responsibility made at a planning rather than operational level." Id. at 42, 73 S.Ct. at 971.

In United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), a case dealing with regulation of the airlines, the Court held that while it was impossible and unnecessary to define with precision "every contour" of the...