Staton v. United States
| Decision Date | 13 June 1983 |
| Docket Number | Civ. A. No. 80-0013-C. |
| Citation | 566 F. Supp. 174 |
| Parties | Ralph W. STATON, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Paul Reiber, McLean, Va., for plaintiff.
John Perry Alderman, U.S. Atty., Roanoke, Va., for defendant.
On November 28, 1977, United States Park Ranger Douglas M. Bowen shot and killed three dogs, owned by plaintiff, in the Shenandoah National Park. Plaintiff thereafter sued the United States for damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA). After a non-jury trial, this court entered judgment for the defendant, ruling that the acts complained of were "discretionary," and therefore not actionable. 28 U.S.C. § 2680(a). The Court of Appeals reversed, holding that the shootings were not discretionary. Staton v. United States, 685 F.2d 117 (4th Cir.1982). The case was remanded with instructions that this court make additional findings as to the issues of Bowen's due care, 685 F.2d at 121, and plaintiff's contributory negligence. 685 F.2d at 121 n. 4. After considering proposed findings of fact and conclusions of law submitted by the parties, the court is prepared to render its verdict.
1. Shenandoah National Park ("Park") is a federally owned wildlife refuge located in the Blue Ridge Mountains of Virginia. In north central Virginia, adjacent to the common border of Madison and Greene Counties, a portion of the National Park juts out toward the east (see map, attached as appendix no. 1). Between Fork Mountain to the north and Jones Mountain to the south, where the shooting of the plaintiff's dogs occurred, the Park is about a mile wide. State owned land, designated as "Virginia Wildlife Area," borders the Park, at that point, both to the north and to the south. The land south and east of the Park, and east of the State land, is privately owned.
2. The first day of the bear hunting season in 1977 was November 28. On that day, individuals could lawfully hunt bear, on private land, with the assistance of dogs, and on State land, but without dogs. Bear hunting in the Park, with or without dogs, was prohibited.
3. Prior to 1977, Park officials had experienced difficulty with poachers in the previously described area. (Tr. 390-91). Because the Park is relatively narrow there, hunting dogs could be employed to run wildlife through onto nonfederal land into the guns of waiting hunters. In 1977, the federal authorities decided to concentrate their enforcement efforts around that place.
4. Pursuant to this resolve, the Park officials distributed a press release, pointing out the problem, and indicating that Park regulations would be "vigorously enforced." (Gov't Exh. 10). The release was distributed to some 200 individuals, organizations, and media sources. (Gov't Exh. 11). The authorities also closed off Fork Mountain Road where it entered the Park from the Rapidan Area northeast of where the shootings occurred; a gate was placed across the road.
5. To further inform hunters of their intentions, Park authorities prepared a handout, which they distributed to hunters on opening day. (Pl.Exh. 1). The handout set forth 36 C.F.R. § 2.8(a) and (d) which provides:
Also printed on the handout was a "Note" which said:
6. The handout, including the "Note," was drafted by Ranger Personnel in the Big Meadows district of the Park. Douglas M. Bowen, who was then District Ranger over the southern half of the Park, from Big Meadows to Afton Mountain, probably did not personally draft the handout, but he accepted responsibility for its contents. (Tr. 359). Larry Hakel, the Park's Chief Ranger, saw the handout prior to its distribution, and did not object to it. (Tr. 416). It was also probably reviewed by Robert R. Jacobsen, the Park Superintendent. (Tr. 362-63).
7. At least one member of plaintiff's hunting group received a copy of the handout from Park Rangers on November 28, 1977. (Tr. 42). Plaintiff, however, did not see the handout until after the shootings. (Tr. 248).
8. No dogs had been killed by Park personnel in recent memory, save a deranged animal which was a threat to humans. Otherwise, the usual, informal policy regarding domesticated dogs found on Park lands was to capture and impound them and notify the owners, who would pick them up. Sometimes they would be fined, but not invariably; this was left to the discretion of the Ranger involved. No evidence was presented at trial which would indicate whether dogs captured in the past had, when caught, been actively engaged in chasing or otherwise molesting wildlife. In his memorandum filed April 22, 1983, however, plaintiff makes reference to a letter, not a part of the record of this case, written by Superintendent Jacobsen. In it he indicates that two dogs were once captured by hand after driving some deer into the freezing water of a stream and holding them at bay there. Such an occurrence, though, does not alter the basic conclusion that some circumstances would justify departure from the informally established policy. Apparently, in that case, the ranger involved decided that adherence to the policy was feasible. The record does not support plaintiff's contention that the Park Service had an affirmative, long standing policy of not shooting dogs.
9. Douglas M. Bowen, then District Ranger over the Park's southern half, was responsible for the supervision of lower level supervisors. His ordinary responsibilities included "management, budget, some field operations, encroachments, resource management, ..." and the like. (Tr. 308).
10. On November 28, 1977, Bowen drove from his home in Big Meadows, through the Rapidan area, into the Park, on Fork Mountain Road. Arriving around dawn, he traversed the gate closing that entrance to the Park, and stationed himself, in a Park Service pickup truck, within sight of the gate. His intention was to advise hunters and address inquiries. (Tr. 317).
11. As he waited, Bowen monitored channel 13 on his citizen's band radio. Hunters' voices flooded the frequency. They described chases, exchanged information, and revealed locations. They also warned of the presence of Park Rangers, or "Park Devils" (Tr. 323), and one man said " " (Tr. 323). Other transmissions led him to believe that dogs were present at Camp Hoover, which is in the Park. (Tr. 325). See generally Tr. 320-26. The traffic that Bowen intercepted bothered him. (Tr. 376).
12. Plaintiff's party communicated on citizen's band channel 7. No evidence was presented to suggest that those hunters deliberately tried to run bear through the park.
13. Attempting to locate the chases described over the radio, Bowen drove the truck up and down Fork Mountain Road, between the gate and "the Sag," located west of the gate, where the narrow patch of Park land at issue here connects to the main body of the Park. While at the gate, he heard dogs from the south, and thought that they were moving up toward the Park. So he drove west again, toward "the Sag." When he got there, he could still hear the dogs baying. The dogs were "excited" and, based on his experience, he thought that they were in "full baying pursuit" of something. (Tr. 332).
14. As Bowen had gone about preparing for his official duties, plaintiff and his companions had prepared for the hunt. They numbered about twenty. Plaintiff accompanied them but did not participate in the shooting; he brought along nine dogs to assist the hunters. Spec, Blue and Gyp were among these. At about 8:00 or 8:30 a.m., the dogs were released between Graves Mill and Bluff Mountain, approximately one mile from both State and federal land. This was on private property, for which plaintiff and his party had obtained leases or licenses to hunt.
15. The hunters stationed sentries along the Park boundary. Their duty was to divert dogs from forbidden territory. (Tr. 186, 201-02). Other hunters followed the dogs.
16. A group of dogs got onto the scent of a bear around "McKinzie Hollow," also known as "Bear Church Ridge." This is marked as "Jones Mountain Trail" on the attached map; it is close to the point where federal, State, and private lands meet, between Bluff Mountain and Jones Mountain. The dogs chased the bear onto State lands, and they circumvented Bluff Mountain. The hunters followed the chase as far as Jones Mountain Trail, where they stopped, about twenty yards from the Park boundary.
17. The dogs, however, after circling Bluff Mountain, continued north onto Park lands. This was the chase, apparently, that Bowen heard coming from where he sat on Fork Mountain Road.
18. Bowen saw a small black bear — neither a cub nor an adult — skitter down a hill, across Fork Mountain Road, and into a "draw" (which is, presumably, a gully or ravine). (Tr. 333). It crossed the road 100 to 150 feet from Bowen. (Tr. 379).
19. Bowen was armed with a six shot Wesson revolver, issued by the Park Service, and his personal double barrel, twelve gauge shotgun.
20. Bowen had recently been certified to operate a tranquilizer gun, which requires special training. (Tr. 328-29). He was not equipped with one, however, when the incident occurred. Only four such guns were assigned to the Park, one in each...
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