Atwater v. United States

• Court: District Court, E.D. California
• Decided: January 24, 2024
• Docket: 2:23-cv-01147
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 TYRONE R. ATWATER, GLORIA M. No. 2:23-cv-01147 WBS AC ATWATER, STEVEN C. CRABTREE, 13 KIMBERLY A. CRABTREE, SCOTT FARTHING, CHANDA FARTHING, 14 CHARLES HAMEL, JOHN M. HOLDEN, ORDER KELLY A. HOLDEN, ALEJANDRO 15 GARCIA JASSO, PATRICIA CARRILLO JASSO, MATTHEW JOHANSEN, 16 BRITTANY JOHANSEN (f/k/a BRITTANY ADDEO), CASEY SEBAHAR, 17 HAILEY SEBAHAR, KRISTINE SWIGART, JERRY VANDENBERG, and 18 NANCY VANDENBERG, 19 Plaintiffs, 20 v. 21 THE UNITED STATES OF AMERICA, 22 Defendant. 23 24 ----oo0oo---- 25 Plaintiffs, eighteen property owners from Douglas 26 County, Nevada, assert claims against the United States for 27 negligence (Claim 1), negligence per se (Claim 2), trespass 28 (Claim 3), and failure to warn (Claim 4) based on the United 1 States Forest Service’s (“Forest Service”) handling of a 2021 2 wildfire. The United States moves to dismiss for lack of 3 subject-matter jurisdiction. (Mot. (Docket No. 16).) 4 I. Factual Background 5 On July 4, 2021, a hiker on the Pacific Crest Trail 6 notified the Carson Ranger District of smoke that he saw rising 7 north of Tamarack Lake, in an area within the Humboldt-Toiyabe 8 National Forest in California. (Compl. (Docket No. 1) ¶¶ 22-23.) 9 The Forest Service sent a helicopter to monitor the fire a few 10 hours later. (Id.) 11 The next day, on July 5, the Forest Service published 12 the Tamarack Incident Decision, which set forth its initial 13 assessment of and monitoring plan for the Tamarack Fire. (Id. ¶ 14 27 & Ex. 2 (“Incident Decision”).) The Incident Decision 15 explained the Forest Service’s choice to monitor the fire, 16 instead of actively suppressing it, as the course of action that 17 best balanced firefighter safety, expenditure of resources, and 18 risk of a bigger fire. (Incident Decision at 20.) Over the next 19 eleven days, the Forest Service monitored the Tamarack Fire via 20 in-person visits, cameras, and aircraft. (Mot. at 5; Stansfield 21 Decl. (Docket No. 16-2) at 4-5.) 22 On July 10, the Carson Ranger District posted a video 23 of the Tamarack Fire on the Forest’s Facebook page, informing the 24 public of the Forest Service’s decision to monitor the fire and 25 that the fire posed no present threat to the public. (Hupp Decl. 26 (Docket No. 16-11) ¶ 4 & Facebook Post (Docket No. 16-12).) 27 On July 16, the Tamarack Fire had grown to the point 28 that the Forest Service began committing air and ground resources 1 to suppress it. (Compl. ¶ 35; Stansfield Decl. ¶ 17.) However, 2 the fire quickly grew out of control, growing from 100 acres to 3 more than 10,000 acres within a day. (Compl. ¶¶ 35-36; 4 Stansfield Decl. 21.) The fire burned for months and at its peak 5 consumed more than 60,000 acres of land. (Compl. ¶ 40.) It also 6 destroyed more than 20 houses and structures, including the real 7 property of the plaintiffs. (Compl. ¶¶ 11-20, 40.) 8 II. Legal Standard 9 Parties may move to dismiss claims against them for 10 lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 11 An attack on subject matter jurisdiction may be facial or 12 factual. “In a facial attack, the challenger asserts that the 13 allegations contained in a complaint are insufficient on their 14 face to invoke federal jurisdiction. By contrast, in a factual 15 attack, the challenger disputes the trust of the allegations 16 that, by themselves, would otherwise invoke federal 17 jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 18 1039 (9th Cir. 2004). 19 Where, as here, the defendant has mounted a factual 20 attack, “the district court may review evidence beyond the 21 complaint without converting the motion to dismiss into a motion 22 for summary judgment.” Id. (citing Savage v. Glendale Union High 23 Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). Disputed facts 24 must be resolved in favor of the plaintiff. Id. 25 III. Discussion 26 The government moves to dismiss plaintiffs’ complaint 27 on grounds of sovereign immunity. “The United States, as 28 sovereign, is immune from suit save as it consents to be sued, 1 and the terms of its consent to be sued in any court define that 2 court’s jurisdiction to entertain the suit.” United States v. 3 Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). Lawsuits 4 against the United States thus must be dismissed for lack of 5 subject matter jurisdiction unless the plaintiff can show that 6 the United States has waived sovereign immunity. United States 7 v. Mitchell, 445 U.S. 535, 538 (1980). 8 The United States has waived its sovereign immunity 9 against most tort claims pursuant to the Federal Tort Claims Act 10 (“FTCA”). 28 U.S.C. §§ 2671 et seq.; United States v. Orleans, 11 425 U.S. 807, 813 (1976). However, there are exceptions. 12 Because the government “can be sued only to the extent that it 13 has waived its immunity, due regard must be given to the [FTCA’s] 14 exceptions” to the United States’s waiver of immunity. Id. at 15 814. 16 A. Discretionary Function Exception 17 One such exception is the discretionary function 18 exception, which provides that the United States remains immune 19 from suit under the FTCA when the plaintiff’s claim is “based 20 upon the exercise or performance or the failure to exercise or 21 perform a discretionary function or duty on the part of a federal 22 agency or an employee of the Government, whether or not the 23 discretion involved be abused.” 28 U.S.C. § 2680(a). 24 The Supreme Court has set forth a two-part test to 25 determine whether the discretionary function exception is 26 applicable. Berkovitz v. United States, 486 U.S. 531, 536 27 (1988); United States v. Gaubert, 499 U.S. 315, 322–23 (1991). 28 Courts must first determine whether the challenged actions 1 involve an “element of judgment or choice.” Gaubert, 499 U.S. at 2 322. If so, courts must then determine “whether that judgment is 3 of the kind that the discretionary function exception was 4 designed to shield,” Berkovitz, 486 U.S. at 536. These are 5 judgments that implicate social, economic, and political policy 6 considerations. Miller v. United States, 163 F.3d 591, 593 (9th 7 Cir. 1998). “The challenged decision need not be actually 8 grounded in policy considerations, but must be, by its nature, 9 susceptible to a policy analysis.” Id. 10 The parties do not dispute that the Forest Service’s 11 actions satisfy the first step. (See Opp’n (Docket No. 19) at 12 10.) Instead, they dispute whether the second step applies here 13 to the Forest Service’s (1) fire management, and (2) its alleged 14 failure to warn the public about the Tamarack Fire. 15 1. Monitoring vs. Firefighting (Claims 1-3) 16 Plaintiffs’ first three claims challenge the Forest 17 Service’s initial decision to monitor the fire instead of 18 attacking it right away. However, the Forest Service’s 19 deliberations and ultimate choice to monitor involves the kind of 20 exercise of judgment protected by the discretionary function 21 exception. 22 The Ninth Circuit has held repeatedly that decisions on 23 how and whether to fight fires involve the exercise of 24 discretionary judgment if they require balancing competing policy 25 interests and allocating limited resources between competing 26 goals. See, e.g., Esquivel v. United States, 21 F.4th 565, 576 27 (9th Cir. 2021) (“[D]ecisions regarding whether and how to 28 perform fire suppression operations are discretionary functions 1 rooted in policy . . . .”) (emphasis added); Miller, 163 F.3d at 2 596 (decision “regarding how to best approach” ongoing fire 3 required balancing safety, cost, damage to resources, 4 environmental impacts, and protection of private property; 5 “[w]here the government is forced, as it was here, to balance 6 competing concerns, immunity shields the decision”); Green v. 7 United States, 630 F.3d 1245, 1251 (9th Cir. 2011) (“[T]he Forest 8 Service’s choices in how to fight a fire are ‘susceptible to a 9 policy analysis grounded in social, economic, or political 10 concerns.’”) (citing Miller, 163 F.3d at 595) (emphasis 11 original). See also Knezovich v. United States, 82 F.4th 931, 12 938 (10th Cir. 2023) (“The Incident Decision lays out the myriad 13 considerations that led to [the decision to monitor the fire], 14 including safety, terrain, weather, and risk. Other factors 15 included the difficult terrain where the fire started, and the 16 competing draw of firefighting resources to other nearby fires. 17 Those considerations are quintessentially discretionary.”); Evans 18 v. United States, 598 F. Supp. 3d 907, 919–20 (E.D. Cal. 2022) 19 (Thurston, J.) (“[A]ny conduct based on the performance of fire 20 suppression activities and decisions about allocation of these 21 resources implicate policy concerns that courts should not second 22 guess.”) 23 Here, the Forest Service clearly faced similar policy 24 considerations before deciding on its strategy to monitor the 25 Tamarack Fire. While plaintiffs portray the Forest Service’s 26 response as complete inaction borne of inertia that ought to be 27 subject to liability (see Opp’n (Docket No. 19) at 11 (“It goes 28 without say [sic] that a decision to do nothing is not the type 1 of conduct the discretionary function was intend [sic] to 2 protect.”)), the Tamarack Incident Decision, published a day 3 after the fire was initially spotted, explains that “Full 4 suppression with direct tactics was considered but ruled out due 5 to the lack of values1 at risk when compared to the exposure to 6 firefighting resources. The lack of escape routes and safety 7 zones coupled with unreliable radio communications supported this 8 tactical approach. [. . .] The monitor strategy is the 9 alternative with the best balance [between the desired outcome 10 and exposure to responders].” (Incident Decision at 20.) 11 The decision to adopt the monitoring strategy exudes 12 policy deliberations that are “quintessentially discretionary,” 13 Knezovich, 82 F.4th at 938, and therefore beyond the scrutiny of 14 this court.2 15 Accordingly, the court will dismiss plaintiffs’ 16 negligence, negligence per se, and trespass claims. 17 1 “Fire fighters and public safety are our top values.” 18 (Incident Decision at 20.) 19 2 Plaintiffs also invoke the “design-implementation” distinction, which provides that “the design of a course of 20 governmental action is shielded by the discretionary function exception, whereas the implementation of that course of action is 21 not.” Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 22 2005) (emphasis original). However, as plaintiffs themselves acknowledge, the Ninth Circuit recognizes one exception to the 23 design-implementation distinction: “The implementation of a government policy is shielded where the implementation itself 24 implicates policy concerns, such as where government officials must consider competing fire-fighter safety and public safety 25 considerations in deciding how to fight a forest fire . . . .” 26 Id. at 1181 n.3 (citing Miller, 163 F.3d at 595-96) (emphasis original). And, as explained above, the Forest Service’s 27 considered decision to monitor the Tamarack Fire instead of pursuing alternative tactics squarely implicates policy concerns. 28 1 2. Failure to Warn (Claim 4) 2 Plaintiffs’ failure to warn claim contends that the 3 government “failed to timely and clearly advise Plaintiffs” about 4 the threat posed to them by the Tamarack Fire and consequently 5 deprived them of enough time to take mitigating steps to save 6 their properties. (See Compl. ¶¶ 74-79.) The court now 7 considers whether the Forest Service’s communications decisions 8 involved judgment of the kind that the discretionary function 9 exception intends to protect. 10 While plaintiffs’ claim is styled as a failure to warn 11 claim, it appears in fact to take issue with the sufficiency of 12 the Forest Service’s communications with the public. Plaintiffs 13 allege that, between July 5 and 15, “the Forest Service never 14 informed the public about its decision to monitor the fire and to 15 not engage in suppression efforts, and of the fact it was 16 receiving information that the fire was burning uncontrollably on 17 its property and threatening to invade private property.”3 18 (Opp’n at 16-17.) However, the Forest Service did notify the 19 public about the Tamarack Fire on July 10, 2021, via a post on 20 the Humboldt-Toiyabe National Forest’s Facebook page. (See Hupp 21 Decl. (Docket No. 16-11) ¶ 4 and Ex. 9; Opp’n at 7, 17.) The 22 Facebook post included a video of the fire, explained that a 23 lightning strike started it, and concluded with the Forest 24 Service’s assessment that the fire “poses no threat to the 25 public, infrastructure or resource values.” (Hupp Decl. Ex. 9.) 26 3 Plaintiffs do not appear to challenge the Forest 27 Service’s communications decisions outside of the July 5 to July 15 timeframe. 28 1 That the Forest Service made a public post alone 2 distinguishes this case from Green v. United States, which 3 plaintiffs argue ought to control. In Green, a Ninth Circuit 4 panel held that the Forest Service’s failure to alert private 5 landowners before or after lighting a backfire4 on their property 6 was not susceptible to policy considerations. The panel so held 7 because no evidence showed that the failure to warn resulted from 8 any resource allocation considerations. See Green, 630 F.3d at 9 1251-52. Here, in contrast, the Forest Service did make a public 10 communication in the form of the information and video posted on 11 its Facebook page. It is not for the court to second-guess the 12 adequacy of that communication. In this case, the Forest Service 13 therefore has no need to justify any inaction on the basis of 14 resource allocation pursuant to Green.5 15 Further, Green is the only binding case of which the 16 court is aware that found government liability for failure to 17 warn about a wildfire. The two other binding cases addressing 18 failure to warn about wildfires found that challenges to the

19 4 A “backfire” is a fire set along the inner edge of a fireline to consume the fuel in the path of a wildfire or change 20 the direction of force of the fire’s convection column. See 21 https://ask.usda.gov/s/article/What-is-a-backfire-wildfire- suppression-technique. 22 5 Kim v. United States, 940 F.3d 484 (9th Cir. 2019) is 23 also distinguishable on the same grounds. (See Opp’n at 18.) In Kim, plaintiffs asserted, in relevant part, a failure to warn 24 claim after a tree limb fell and killed two boys camping on Yosemite National Park campgrounds. The Ninth Circuit panel 25 found that “fulfilling the Park’s duty to inform visitors somehow 26 about that risk does not involve considerations of public policy,” id. at 492 (emphasis original), and therefore the 27 failure to warn was not protected by the discretionary function exception. 28 1 Forest Service’s method of alerting the public were barred by the 2 discretionary function exception. In Esquivel v. United States, 3 the Ninth Circuit distinguished Green, holding that the Forest 4 Service’s in-person conversation with a landowner about starting 5 a defensive fire on their land was covered by the discretionary 6 function exception because it was “based upon the exercise or 7 performance of choosing how to organize and conduct fire 8 suppression operations, which undisputedly requires the exercise 9 of judgment grounded in social, economic, or political policy.” 10 Esquivel, 21 F.4th at 577 (cleaned up). 11 The Ninth Circuit again distinguished Green in Schurg 12 v. United States, on the ground that the Forest Service’s 13 decision to post about a wildfire on a public, online platform 14 and use other technology-based methods to notify landowners about 15 nearby fire-suppression activities instead of reaching out to 16 them directly “was related to its decision about ‘whether, where, 17 and how to set and manage’ the fire-suppression activities.” 18 Schurg, 63 F.4th at 834 (citing Esquivel, 21 F.4th at 576). 19 The Ninth Circuit has also held in other contexts that 20 how to warn the public about potential dangers is a discretionary 21 call best left to the government. See, e.g., Childers v. United 22 States, 40 F.3d 973, 976 (9th Cir. 1994) (“[D]ecisions as to the 23 precise manner in which NPS would warn the public as to trails 24 which are left open, but unmaintained in the winter, clearly fall 25 within the discretionary function exception.”) (emphasis 26 original); Blackburn v. United States, 100 F.3d 1426, 1434 (9th 27 Cir. 1996) (“[T]he NPS in the present case balanced competing 28 policy considerations in determining how to warn the public of 1 the hazard. The NPS determined that the best alternative was to 2 place signs stating “DANGEROUS TO DIVE FROM BRIDGE” on and around 3 the bridge. This decision is ‘precisely the kind the 4 discretionary function exception was intended to immunize from 5 suit.’” (citing Childers, 40 F.3d at 976)); see also Ruffino v. 6 United States, 374 F. Supp. 3d 961, 975 (E.D. Cal. 2019) 7 (Thurston, J.) (even failure to warn of known or knowable hazards 8 shielded if decision was actually susceptible to policy analysis 9 (citing Morales v. United States, 895 F.3d 708, 716 (9th Cir. 10 2018))). 11 Even at face, the Forest Service’s decisions regarding 12 the mode, frequency, and content of its notification to the 13 public about the Tamarack Fire are plainly susceptible to policy 14 considerations, as they implicate, among other things, questions 15 about the speed and accuracy of information to be published. 16 (Mot. at 19-20.) Its decision to make one Facebook post between 17 July 5 and July 15 instead of conducting more proactive outreach 18 by posting more, posting on other public platforms, or contacting 19 vicinity property owners directly about a potential fire threat 20 was also proportionate to its initial, discretionary assessment 21 that “[c]ritical values [i.e., public safety] have a low 22 probability of being impacted . . . . Consequences may include 23 limited impact to infrastructure . . . .” (Incident Decision at 24 20.) 25 Accordingly, the court will dismiss plaintiffs’ failure 26 to warn claim on this basis.6 27 6 The government also argues that Claim 4 is 28 independently barred by the misrepresentation exception to the 1 B. Jurisdictional Discovery 2 Plaintiffs seek leave to depose the declarants whose 3 declarations accompany the government’s motion to dismiss “to 4 determine whether their decision-making was truly guided by 5 discretionary, policy-driven considerations, or whether their 6 jurisdictional motion is in fact supported by nothing more than 7 post hoc rationalizations with no actual evidentiary support.” 8 (Reply at 19-20.) 9 However, plaintiffs fail to reckon with a crucial word: 10 “susceptible.” See Miller, 163 F.3d at 593 (“The challenged 11 decision need not be actually grounded in policy considerations, 12 but must be, by its nature, susceptible to a policy analysis.”) 13 See also Gonzalez v. United States, 814 F.3d 1022, 1033 (9th Cir. 14 2016) (government “not required to prove . . . that any decision 15 actually involved the weighing of policy considerations”); Lam v. 16 United States, 979 F.3d 665, 674 (9th Cir. 2020) (courts “must 17 not focus on or even consider the employee’s actual thinking 18 about what to do or not do, or the status of the employee, or the 19 ‘routine or frequent nature’ of the discretionary act.”) (citing 20 Gaubert, 499 U.S. at 334). 21 More generally, plaintiffs fail to raise any factual 22 disputes that bear on the question of jurisdiction. Accordingly, 23 any jurisdictional discovery would be futile. 24 C. No Leave to Amend 25

26 FTCA’s waiver of sovereign immunity. (See Mot. at 20-21.) Because the court dismisses this claim under the discretionary 27 function exception, it need not consider the applicability of the misrepresentation exception. 28 ene nme en OO EE OSE I EI ED eee eee

1 Courts commonly consider four factors when deciding 2 whether to grant leave to amend a complaint under Rule 15(a}): bad 3 faith, undue delay, prejudice, and futility of amendment. Roth 4 v. Marquez, 942 F.2d 617, 628 (9th Cir. 1991). Because Rule 5 16(b)’s “good cause” inguiry essentially incorporates the first 6 three factors, if a court finds that good cause exists, it should 7 then deny leave to amend only if such amendment would be futile. 8 Here, the court concludes that amendment would be 9 futile. All of the Forest Service’s alleged acts of commission 10 and omission are firmly rooted in contexts where its decisions 11 are at least susceptible to policy considerations. The court 12 cannot imagine any plausible additional allegations which might 13 | disturb the court’s analysis. Accordingly, plaintiffs will not 14 be given leave to amend. 15 IT IS THEREFORE ORDERED that the United States’s motion 16 to dismiss (Docket No. 16) be, and the same hereby is, GRANTED. 17 Dismissal shall be with prejudice. 18 | Dated: January 23, 2024 dete, . ak 2 19 WILLIAM B. SHUBB 50 UNITED STATES DISTRICT JUDGE

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