Miller v. U.S.

• Decision Date: 17 December 1998
• Docket Number: No. 97-35847,97-35847
• Citation: 163 F.3d 591
• Parties: 98 Cal. Daily Op. Serv. 9161, 98 Daily Journal D.A.R. 12,816 Donald Maxwell MILLER; Janet Miller; D.J. Miller Ranches Incorporated, an Oregon Corporation; D & J Ranches, a Partnership Consisting of Donald Maxwell Miller and Janet Claire Miller, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 591

163 F.3d 591

98 Cal. Daily Op. Serv. 9161, 98 Daily Journal

D.A.R. 12,816

Donald Maxwell MILLER; Janet Miller; D.J. Miller Ranches Incorporated, an Oregon Corporation; D & J Ranches, a Partnership Consisting of Donald Maxwell Miller and Janet Claire Miller, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 97-35847.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1998.

Decided Dec. 17, 1998.

William F. Schroeder (Argued), Carol DeHaven Skerjanec, Vale, Oregon, and W. Alan Schroeder, Boise, Idaho, for plaintiffs-appellants.

James L. Sutherland, Assistant United States Attorney, Eugene, Oregon, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Janice M. Stewart, Magistrate Judge, Presiding. D.C. No. CV-96-00255-JMS.

Before: NOONAN, THOMPSON, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Donald and Janet Miller, D.J. Miller Ranches, Inc., and D & J Ranches, a partnership consisting of Donald and Janet Miller ("the Millers") appeal the United States District Court of Oregon's grant of summary judgment for the United States. The Millers sued the United States Forest Service for damages incurred when a forest fire spread from the Ochoco National Forest onto their property. The district court granted the government's motion for summary judgment, holding that the discretionary function exception to the Federal Tort Claims Act ("FTCA") immunized the government from suit. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1993), and we affirm the district court's grant of summary judgment.

I. FACTS

When lightning strikes the dry forests of eastern Oregon in August, fire follows. After ninety days with no rain and with temperatures above normal, a thunderstorm ignited several fires on the Snow Mountain Ranger District ("SMRD") of the Ochoco National Forest on August 6, 1990. Les Holsapple, the fire management officer for the SMRD, first spotted the fire that damaged the Miller's property ("the Bald Butte fire") around 7:00 p.m. In the course of that hour, several other fires were reported on the SMRD. Within fifteen minutes, Holsapple ordered aerial fire retardants and smokejumpers for the Bald Butte fire but was informed that retardant aircraft had already been committed to a fire in the Deschutes National Forest and that smokejumpers would be unable to reach the area before dark. Fire engines and bull dozers were ordered, along with other equipment available under equipment rental agreements. The four fire engines owned by the SMRD were all committed to other fires in the district, and Holsapple directed Dick Smith, the assistant Fire Management Officer who took over the initial attack on the fires, that direct ground-based attack on the Bald Butte fire would be ineffective given its current intensity levels and that they should find and suppress any other small fires before those fires created a problem. At that time the Bald Butte fire covered approximately 700-1,000 acres.

The Bald Butte fire was soon declared "escaped," and Holsapple advised the district ranger that it was unsafe to commit resources to the fire at that time. Smith went on to lead efforts to attack another fire on the SMRD, the Buck Springs fire. Although monitoring and suppression planning efforts for the Bald Butte fire were ongoing, on-the-ground fire suppression efforts did not occur until sometime on the afternoon of August 7, 1990, seventeen to twenty-three hours after the Bald Butte fire was first sited. The Bald

Butte fire soon joined two other fires, for a total size of approximately 6,000 acres. This coalescence of fires crossed onto the Millers' property sometime on the afternoon of August 9, 1990.

II. STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). This court must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. at 852. The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir.1996). If the party moving for summary judgment meets its burden of showing that there is no genuine issue of material fact, the non-moving party may not rely on mere allegations but must set forth specific facts showing there is a genuine issue of material fact. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

III. THE DISCRETIONARY FUNCTION EXCEPTION TO THE FEDERAL TORT CLAIMS ACT

The FTCA waives sovereign immunity, allowing tort claims to be brought against the Government arising out of the negligent conduct of government agents acting within the scope of their employment. 28 U.S.C. §§ 2671-2680 (1994). The United States may be held liable "to the same extent as a private individual under like circumstances." § 2674. A limitation on the waiver of sovereign immunity exists, however, where the government is performing a "discretionary function." This exception immunizes the United States against

any claim based on an act or omission of an employee of the Government ... 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.

§ 2680(a). The discretionary function exception "marks the boundary between Congress's willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). It is designed to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort." United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755).

The applicability of the discretionary function exception is determined by a two-part test. First, the exception covers only acts that are discretionary in nature, which necessarily involve an element of choice. Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954; Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir.1996). The choice requirement is not satisfied where a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow" because "[i]n this event, the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.

Second, once the court determines that discretion is involved, there must also be a finding that the discretion involves the type of judgment that the exception is designed to shield. Id. The exception protects only government actions and decisions based on "social, economic, and political policy." Id. The decision need not be actually grounded in policy considerations, but must be, by its nature, susceptible to a policy analysis. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267; Federal Deposit Ins. Corp. v. Craft, 157 F.3d 697, 707 (9th Cir.1998). Where the government While the plaintiff bears the burden of coming forth with sufficient evidence to establish there are genuine issues of material fact regarding the applicability of the discretionary function exception, the government bears the burden of establishing that the test is met and that discretionary immunity applies. Prescott v. United States, 973 F.2d 696, 702 (9th Cir.1992).

agent is exercising discretion, "it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324, 111 S.Ct. 1267.

IV.

APPLICATION OF THE DISCRETIONARY FUNCTION TEST

A. Discretion

Applying the first prong of the two-part test, the question is whether there was a federal statute, regulation, or policy in place that specifically prescribed a particular course of action by the Forest Service regarding the Bald Butte fire. Without choice, there can be no discretion.

The Millers point to four sources of mandatory language in support of their claim that discretion did not exist: the Forest Plan, the Code of Federal Regulations (via the Mobilization Guide), the statutory and common law of Oregon, and the PrePlanned Dispatch Blocks.

The Forest Plan outlines various "standards" which are mandatory requirements under the plan. ¹ The Millers specifically point to language in the plan which requires employees to (1) monitor current and recent fire reports to target specific risks; (2) apply aggressive suppression action to wildfires that threaten assets, including private property, by initial attack; (3) provide equipment outside of the fire management organization to assist in the initial attack; and (4) meet the goal of controlling the fire by directly addressing the fire on the ground and preparing an escaped fire analysis where appropriate.

Second, the Code of Federal Regulations ("CFR") refers to the Forest Service Manual as a "directive" which requires the preparation of a Mobilization Guide. The Mobilization Guide, in turn, provides that an employee must (1) report a discovered wildfire and take appropriate action until relieved; (2) not pass up an unmanned fire, even if the employee is not rated as meeting primary firefighter fitness standards; if the employee is the first qualified firefighter to arrive at the fire, (3) assume Incident Commander status until formally relieved; (4) not hesitate to use cooperator crews within the...