MICHELLE SCHURG, ET AL V. USA, No. 22-35193 (9th Cir. 2023)
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The United States Forest Service, together with the Montana Department of Natural Resources and Conservation, managed the rapidly changing fire conditions and actively communicated with the public about the Lolo Peak Fire. After the fire, various affected landowners sued the federal government. They claim that the Forest Service is liable under the Federal Tort Claims Act (“FTCA”) for failing to comply with its duty to consult with them about fire-suppression activities on and near their properties. Specifically, they argued that the Forest Service was required to consult with landowners through individualized—rather than public—communication channels. The district court granted summary judgment for the Forest Service, holding that it lacked subject matter jurisdiction because the property owners’ claims were barred by the discretionary function exception.
The Ninth Circuit affirmed the district court’s summary judgment in favor of the United States. The panel applied the requisite two-step test to determine whether the discretionary function exception applied. First, the panel examined whether there was a federal statute, regulation, or policy that prescribed the Forest Service’s course of action regarding the agency’s communications with the landowners during the Lolo Peak fire in the Bitterroot Mountains in Montana in July 2017. The panel held that the Forest Service’s specific communications with the landowners exceeded the incident decision’s instruction and involved an element of judgment or choice sufficient to satisfy the first step of the discretionary function exception. The panel held that the Forest Service’s decisions about notifying the landowners about fire-suppression activities likely to occur on and near their properties were susceptible to a policy analysis.
Court Description: Federal Tort Claims Act. The panel affirmed the district court’s summary judgment in favor of the United States in an action brought by landowners alleging that the U.S. Forest Service is liable under the Federal Tort Claims Act (“FTCA”) for failing to comply with its duty to consult with them about fire- suppression activities on or near their properties.
The FTCA’s discretionary function exception preserves sovereign immunity as to claims regarding a government employee’s “act or omission . . . 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.” 28 U.S.C. § 2680(a).
The panel applied the requisite two-step test to determine whether the discretionary function exception applied. First, the panel examined whether there was a federal statute, regulation, or policy that prescribed the Forest Service’s course of action regarding the agency’s communications with the landowners during the Lolo Peak fire in the Bitterroot Mountains in Montana in July 2017. The published incident decision in place for the Lolo Peak fire contained an instruction, included in the “objectives” section of the incident decision, directing the Forest Service to “[c]onsult with private landowners and local fire district authorities if suppression activities have a high probability of occurring on private lands.” The objective did not dictate when or how the Forest Service was to consult with private landowners and did not require the Forest Service to consult with landowners individually. The panel held that the Forest Service’s specific communications with the landowners exceeded the incident decision’s instruction and involved an element of judgment or choice sufficient to satisfy the first step of the discretionary function exception.
Second, the panel examined whether the Forest Service’s decisions related to consulting with landowners about fire- suppression activities on and near their land were based on social, economic, and political policy. The panel held that the Forest Service’s decisions about notifying the landowners about fire-suppression activities likely to occur on and near their properties were susceptible to a policy analysis. The panel concluded that determining how to consult with private landowners while the Lolo Peak fire raged was precisely the type of decision the discretionary function exception was designed to shield, and the landowners’ claims were thus barred by the discretionary function exception. Accordingly, the district court properly granted summary judgment for the Forest Service on all of the landowners’ claims.
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