Strawberry Water Users Ass'n v. United States

Docket Number2:22-cv-00002-JNP-DAO
Decision Date24 March 2023
CourtU.S. District Court — District of Utah

Daphne A. Oberg Magistrate Judge


Jill N. Parrish United States District Court Judge

This case arises from the Strawberry Water Users Association's (SWUA) negligence and trespass action against the United States of America (United States) under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. §§ 2671-2680. SWUA alleges that the United States, acting through the United States Department of Agriculture Forest Service (“Forest Service”) failed to adequately suppress two wildfires in 2018, the Bald Mountain Fire and the Pole Creek Fire, causing significant damage to SWUA's personal and real property interests.

Before the court is the United States' motion to dismiss for lack of jurisdiction. ECF No. 14. The United States contends that the court lacks jurisdiction due to the FTCA's discretionary function exception. The court held an in-person hearing regarding this motion on March 22, 2023. At the conclusion of the hearing, it took the motion under advisement. After considering the parties' written submissions and oral arguments, the court GRANTS the United States' motion to dismiss for lack of jurisdiction.


In 1976, Congress enacted the National Forest Management Act (“NFMA”), which required the Forest Service to develop, maintain, and amend land and resource management plans (“Forest Plans”) for each National Forest Land Unit (“Forest Unit”).[1] 16 U.S.C §§ 1600, et seq.; ECF No. 14-2 at ¶ 8. Forest Plans guide land and resource management decisions in each Forest Unit and provide the framework upon which fire management objectives and programs are developed and implemented. ECF No. 14-2 at ¶ 8. In 2003, Forest Service leadership approved Forest Plans for the Wasatch-Cache and Uinta National Forests.[2] Id. at ¶ 9. Each Forest's plan was developed and approved in compliance with the National Environmental Policy Act (“NEPA”), which requires federal agencies to analyze the environmental impact of major federal actions. Id. at ¶ 9; 42 U.S.C. § 4331, et seq. The NFMA requires the Forest Service to monitor conditions within each Forest Unit to determine if it needs to amend a Unit's Forest Plan. ECF No. 14-2 at ¶ 14. In its 2017 Biennial Monitoring Reporting, leadership of the Uinta-Wasatch-Cache (“UWC”) National Forest determined that no amendment to the 2003 Uinta National Forest Plan was needed, and it has made none since 2003. Id.; ECF No. 14-5 at 1.

As of 2018, the Uinta Forest Plan, which provides a framework for the management of the Mount Nebo area of the UWC National Forest, included the following guidelines for wildland fire use[3] in Wilderness Areas[4]:

Guideline: Wildland fire use is allowed to reduce unnatural fuel accumulations and restore fire to its natural role when the following conditions exist:
a. Reduction of available fuels and other conditions will promote attainment of a healthy wilderness ecosystem.
b. Fire location does not constitute an unacceptable risk to resources or property outside the wilderness area.

ECF No. 14-2 at ¶ 21. The Plan also provides the following guidelines for wildland fire use in non Wilderness Areas:

Fire-3 Guideline: Wildland fire use is authorized forest-wide, except in high-use travel corridors, where there are susceptible known cultural resources, and where direction for certain management areas and management prescriptions provides otherwise. The appropriate response is suppression in high-use travel corridors or where there are susceptible known cultural resources. In areas authorized for wildland fire use, the full range of appropriate management responses, from full suppression to monitoring, may be used.

Id. at ¶ 21. The Uinta Forest Plan contains no provision for wildland fire use outside of the UWC National Forest.

In the spring of 2018, the UWC National Forest drafted and adopted a “Default Initial Fire

Response Map,” also known as “the Red/Green Map.” ECF No. 14-13 at 6. The purpose of Red/Green Maps is to annually communicate to local stakeholders, including nearby communities and property owners, which “fire starts might be considered as a means to meet Forest Plan objectives” Id. Each Forest in the Intermountain Region is required to produce such a map “as a consistent means to communicate intent and opportunity.” Id. These maps are produced pursuant to the guidelines in the relevant Forest Plan and reflect the changing circumstances of the natural environment from year to year. Id. “An area marked in red indicates where fire is likely unwanted due to adjacent values. A green area might be evaluated for an approach that would lead to a larger fire footprint.” Id. Updated Red/Green Maps are shared at spring meetings prior to the start of each fire season and can be amended based on input from local stakeholders. Id.

In addition to the fire management guidelines included in Forest Plans, the managers of Forest Units also rely upon the fire management guidelines laid out in national policy statements. In 2014, the Secretary of Agriculture and Secretary of the Interior jointly developed the National Cohesive Wildland Fire Management Strategy (“the National Strategy”) to provide a consistent fire management regime for federal agencies operating across the country. ECF No. 19 at 41. The two secretaries drafted the National Strategy under a mandate from the Federal Land Assistance, Management, and Enhancement Act of 2009 (the “FLAME Act). Pub. L. No. 111-88, 123 Stat. 2904, tit. V, § 501; 43 U.S.C. § 1748b(b)(1)-(7). The National Strategy was produced in recognition of the “rapid escalation of extreme wildfire behavior, accompanied by significant increases in risk to responders and citizens, home and property losses, costs, and threats to communities and landscapes” over the proceeding two decades and its vision, upon implementation, was to [s]afely and effectively extinguish fires when needed; use fire where allowable; manage our national resources; and as a nation, to live with wildland fire.” National Cohesive Wildland Fire Management Strategy at 1. To pursue its vision, the National Strategy included “a set of guidelines intended to provide basic direction when planning activities.” Id. These guidelines were premised on four priorities:

Safe and effective response to wildfires is the highest priority of the National Strategy, and includes enhancing wildfire response preparedness with an emphasis on both structural protection and wildfire prevention to maximize the effectiveness of initial response. The second priority is vegetation and fuels management, and is perhaps the most challenging issue. General guidance in this area includes designing and prioritizing fuel treatments; strategically placing fuel treatments; increasing use of wildland fire for meeting resource objectives; and continuing and expanding the use of all methods to improve the resiliency of our forests and rangelands. The third priority involves engaging homeowners and communities in taking proactive action prior to wildfires. The fourth priority includes emphasizing programs and activities, tailored to meet identified local needs, which seek to prevent human-caused ignitions.


In 2015, the Forest Service adopted a five-year plan to effectuate the Secretaries' National Strategy: The USDA Forest Service Strategic Plan: FY 2015-2020 (the “National Plan”). ECF No. 19 at 42. The National Plan laid out the three components of the Forest Service's long-term fire management strategy: (1) restoring fire-adapted ecosystems, (2) helping communities become safer when threatened by wildfire, and (3) responding appropriately to wildfire.” USDA Forest Service Strategic Plan: FY 2015-2020 at 12. In order to implement the components of the National Plan, the Forest Service would work “with landowners and other partners” to “restore the natural role of fire while helping at-risk communities adapt to wildfire hazards.” Id. It would do so by promoting the idea of “shared responsibility for reducing fire risk to communities.” Id. at 13.


On August 24, 2018, lightning struck the steep and rugged terrain of the Mount Nebo Wilderness Area in the UWC National Forest, igniting the Bald Mountain Fire. The point of origination was well within a “green area” on the Red/Green Map, indicating that ignition took place in an area where an unplanned fire could “reduce fuel accumulations and contribute to landscape sustainability . when conditions [were] right to do so with little risk.” ECF No. 14-13 at 6, 7. Initially, the fire grew slowly and the response from Forest Service fire managers matched its low intensity. After considering several factors, including firefighter safety, lack of values at risk, the composition of surrounding vegetation, the remote location of the fire, and weather, the Forest Service published an Incident Decision on August 27, 2018. ECF No. 14-11. This report explained that managers planned to allow the Bald Mountain Fire to burn into unpopulated areas to the north, northeast, and east of its ignition point in order to “reduce unnatural fuel accumulations and restore fire to its natural role.” ECF No. 12-11 at 13. The Forest Service's decision to put the fire “into monitor status,” ECF No. 14-13 at 8, was, in part, a result of managers' belief that the “fire season and weather patterns indicate[d] favorable conditions for this incident to achieve resource benefits.” Id. at 7. But resource management was not the only reason for allowing...

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