McDougal v. U.S. Forest Service

• Decision Date: 15 April 2002
• Docket Number: Civil No. 99-1038-JO.
• Citation: 195 F.Supp.2d 1229
• Parties: Marvin McDOUGAL, Plaintiff, v. U.S. FOREST SERVICE, Defendant.
• Court: U.S. District Court — District of Oregon

195 F.Supp.2d 1229

Marvin McDOUGAL, Plaintiff, v. U.S. FOREST SERVICE, Defendant.

Civil No. 99-1038-JO.

United States District Court, D. Oregon.

April 15, 2002.

Gary M. Bullock, Wade V. Regier, Bullock & Regier, Portland, OR, for Plaintiff.

James L. Sutherland, Assistant United States Attorney, District of Oregon, United States Attorney's Office, Eugene, OR, for Defendant.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

Plaintiff Marvin McDougal brings this action against defendant United States Forest Service, through the United States, alleging, as relevant, a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq, for damages incurred in relation to a fire in the Strawberry Mountain Wilderness Area in 1996.

On July 31, 2001, I granted in part defendant's motion to dismiss or, alternatively, for summary judgment on certain of plaintiff's damages claims (# 61). On September 17, 2001, I issued a second opinion granting defendant's motion for summary judgment on plaintiff's claim for timber loss (# 65). I deferred ruling on defendant's motion with respect to liability to permit the parties to engage in settlement negotiations.

The parties' settlement efforts failed. As a result, I now return to the issue that I have held in abeyance since July 2001: Whether defendant is immune from liability under the discretionary function exception to FTCA, 28 U.S.C. 2680(a), for its actions with respect to the fire. Having considered the parties' submissions and the arguments made during the hearing on May 21, 2001, I conclude that defendant's actions fall within the discretionary function exception to the FTCA. Defendant's motion for summary judgment on the issue of liability is, therefore, granted and the alternative motion to dismiss is moot.

FACTUAL BACKGROUND

The fire that gave rise to this action, known as the "Wildcat fire," first started as a lightening strike on July 26, 1996, on a ridge in the center of the Strawberry Mountain Wilderness area at the approximate elevation of 7100 feet. In keeping with various governing laws and documents, and as explained more fully below, the Forest Service decided to manage the fire, which was less than 1/10 acre in size at that time, as a "prescribed natural fire" ("PNF"). Over the next several days, additional lightening strikes ignited additional fires within the parameters of the Wildcat PNF. Everything proceeded as planned until August 9, 1996, when the fire "blew up" and was declared a "wildfire." Defendant then undertook to control the fire, but by the time the fire was brought under control, the fire had burned approximately 216 acres of an adjacent ranch, known as the "Oxbow Ranch." At the time of the fire, plaintiff Marvin McDougal was a lessee and an optionee of the Oxbow Ranch.

STANDARD

Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir.1989).

The substantive law governing a claim determines whether a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party. T.W. Elec. Service, 809 F.2d at 631. Inferences drawn from facts are viewed in the light most favorable to the non-moving party. Id. at 630-31.

DISCUSSION

A. Legal Standards

The United States can be sued only to the extent that it has waived its sovereign immunity. Reed ex rel. Allen v. U.S. Dept. of Interior, 231 F.3d 501, 504 (9th Cir.2000). The FTCA, however, provides a waiver of the government's sovereign immunity "for the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employee." 28 U.S.C. § 1346(b)(Supp. IV 1998); see Kelly v. U.S., 241 F.3d 755, 759 (9th Cir.2001). This waiver of immunity is limited, however, by the "discretionary function" exception; that is, the government is not liable for claims

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 be abused.

28 U.S.C. § 2680(a). Where this exception applies, "`the court lacks subject matter jurisdiction.'" Kelly, 241 F.3d at 760 (quoting GATX/Airlog Co. v. United States, 234 F.3d 1089, 1094 (9th Cir.2000)).

In United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813-14, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the Supreme Court established a two-part test for use in determining whether the discretionary function exception applies. First, the court must determine whether the challenged action involves an element of choice or judgment. Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755. If it does, then the court must decide "`whether that judgment is of the kind that the discretionary function exception was designed to shield * * *.'" Reed, 231 F.3d at 504 (quoting Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)); see also Kelly, 241 F.3d at 760. The government bears the burden of proving both prongs. Kelly, 241 F.3d at 760.

The first prong is whether the challenged conduct is discretionary: "discretion is the benchmark of this self-referential prong of the discretionary function test." Kelly, 241 F.3d at 760 (citation omitted). The existence of some mandatory language is not enough to eliminate discretion. Id. at 761. If alleged conduct violates a "specific"¹ and "mandatory directive, whether by statute, regulation or policy," then it is not discretionary, because there is no choice or judgment involved.

The second prong—policy analysis—"is grounded in the notion that the discretionary function exception is designed to `prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy.'" Kelly, 241 F.3d at 760 (quoting United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). The decision must be susceptible to a policy analysis grounded in social, economic, or political concerns, such as employee and public safety, the agency's goals and duties, the agency's relationship with the public, etc. See Kelly, 241 F.3d at 762; Miller v. U.S., 163 F.3d 591, 595 (9th Cir.1998)(Forest Service's decision regarding how to attack a fire involved competing policy considerations including cost, public safety, firefighter safety, and resource damage).

Significantly, "negligence is simply irrelevant" to discretionary function analysis. Kennewick Irr. Dist. v. U.S., 880 F.2d 1018, 1029 (9th Cir.1989); see 28 U.S.C. § 2680(a). As the court in Kennewick explained, "if the presence of negligence were allowed to defeat the discretionary function exception, the exception would provide a meager shield indeed against tort liability." Id.; see also Pope & Talbot, Inc. v. Dept. of Agriculture, 782 F.Supp. 1460, 1463 (D.Or.1991)(Jones, J.)("[e]ven if particular actions are negligent, those actions are protected if the actions fall within the discretionary function exception"); Reed, 231 F.3d at 504-505 ("[e]ven if the exercise of that governmental discretion was ill-advised, it does not make the discretionary function exception inapplicable").

In this case, plaintiff does not contend that any of defendant's decisions fail to satisfy the second prong, policy analysis. Consequently, this opinion addresses only the first prong, the nature of defendant's decisions.

B. The Governing Statutes, Regulations, and Policies

A pyramid of legislation, regulation, policies, plans, and implementing documents underlie and set the stage for defendant's initial decision to designate the Wildcat fire as a "prescribed natural fire," as well as all of the decisions and various actions that followed. In hierarchical order, these are:

1. In 1964, Congress enacted the Wilderness Act, 16 U.S.C. § 1131 et seq. The Strawberry Mountain Wilderness in the Malheur National Forest was added in 1984. The wilderness area consists of approximately 68,700 acres and is administered by the Prairie City Ranger District and Bear Valley Ranger District.

2. Statutory and regulatory direction for management of wilderness areas is found at 16 U.S.C. § 551 (protection of national forests); 16 U.S.C. § 1131 et seq (National Wilderness Preservation System); and 36 C.F.R. part 293 (Wilderness Primitive area).

3. Forest Service direction for management of wilderness areas and the use of fires in wilderness areas is found in:

a. GAO Report, Federal Fire Management: Limited Progress in Restarting the Prescribed Fire Program (dated December 1990)(Defendant's Exhibit ("Def's Exh.") 101).

b. Forest Service Manual ("FSM"), Title 5100, Fire Management with supplements (effective December 1991)(Def's Exh. 102).

c. FSM, Title 2300 and Region 6 Supplement 2320 (effective August 8, 1996)(Def's Exh. 103).

d. Environmental Assessment for Wilderness Prescribed Natural Fire Program, Malheur National Forest, Baker and Grant Counties, Oregon (Def's Exh. 104).

e. Decision Notice and Finding of No Significant Impact and Forest Plan Amendment No. 31 (June 2, 1995)(Def's Exh. 105).

f. Strawberry Mountain—Monument Rock Fire Management Areas, Prescribed Natural Fire...