Opinion
No. CV-20-00220-PHX-MTL
2023-12-20
Susana Villanueva GARCIA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
Jesse Morgan Showalter, Joel B. Robbins, Lauren E. Channell, Robbins Curtin Millea & Showalter PLLC, Phoenix, AZ, Matthew P. Millea, Matthew P. Millea PLC, Phoenix, AZ, Zachary Evan Mushkatel, Mushkatel & Becker PLLC, Sun City, AZ, for Plaintiffs. Emory Thomas Hurley, U.S. Attorney's Office, Phoenix, AZ, for Defendant.
Jesse Morgan Showalter, Joel B. Robbins, Lauren E. Channell, Robbins Curtin Millea & Showalter PLLC, Phoenix, AZ, Matthew P. Millea, Matthew P. Millea PLC, Phoenix, AZ, Zachary Evan Mushkatel, Mushkatel & Becker PLLC, Sun City, AZ, for Plaintiffs.
Emory Thomas Hurley, U.S. Attorney's Office, Phoenix, AZ, for Defendant.
ORDER
Michael T. Liburdi, United States District Judge.
In June 2017, the Highline Fire burned over 7,000 acres of national forest land near Payson, Arizona. Not long after the Highline Fire was extinguished, in July 2017, members of the Garcia and Garnica families gathered at the Water Wheel, a
site along Ellison Creek in the Tonto National Forest, to celebrate a family member's birthday. At the same time at the Mogollon Rim many miles upstream, a rainstorm caused a flash flood. The loss of vegetation because of the fire accelerated the flood's severity. Tragically, in very little time, the flooding made its way into Ellison Creek. Floodwaters swept away the Garcia and Garnica families. Ten people lost their lives.
Plaintiffs are surviving family members or statutory beneficiaries. They sue the United States for gross negligence and wrongful death. They contend that the United States failed to devise an adequate flood control plan for the areas affected by the Highline Fire.
Pending before the Court is Defendant the United States's Motion for Summary Judgment (Doc. 122). The Court finds that it lacks subject matter jurisdiction, and Defendant's Motion will be granted.
I. BACKGROUND
A. The Highline Fire
In June 2017, the Highline Fire burned over 7,000 acres near Payson. (Doc. 36 ¶¶ 20-21; Doc. 52 ¶¶ 20-21.) This fire incinerated vegetation and trees on national forest land in the Mogollon Rim area. (Doc. 36 ¶ 21; Doc. 52 ¶ 21.) For two weeks, 914 firefighters battled the Highline Fire. (Doc. 36 ¶ 22; Doc. 52 ¶ 22.) The Highline Fire specifically hit the Ellison Creek watershed, which is part of the Tonto National Forest. (Doc. 36 ¶¶ 24-25; Doc. 52 ¶¶ 24-25.) Of the 27,000 acres in the Ellison Creek Watershed, 2,495 acres were within the burned area. (Doc. 20-5 ¶ 16.)
As the fire burned, the United States Forest Service ("USFS") assembled an interdisciplinary Burned Area Emergency Response ("BAER") team, "whose purpose was to assess risks to life, property, and natural and cultural resources and to recommend emergency response actions to reduce the anticipated consequences of those risks." (Doc. 36 ¶ 31; Doc. 52 ¶ 31.) The BAER team consists of technical specialists within the USFS, who include hydrologists, soil scientists, archeologists, and wildlife or other specialists. They work collectively during and after a wildfire to evaluate and assess threats to the safety of people, property, and critical natural or cultural resources within or next to the national forests. (Doc. 20-5 ¶¶ 3-4.) The BAER team works with "local resource specialists, line officers, and fire suppression personnel to identify values at risk" and safe locations within the burned area perimeter where the BAER team can begin to conduct site assessment work. (Id. ¶ 10.) BAER team members then analyze the severity of the burn and analyze post-fire effects." (Id.)
The BAER team then recommends responsive actions to manage unacceptable risks. (Id. ¶ 4.) They are not, however, tasked with providing a comprehensive evaluation of all fire or suppression damage, all post-fire damage, or to identify long-term rehabilitation and restoration needs. (Id. ¶ 5.) "In nearly all fires, only a portion of the burned land is recommended for post-fire emergency stabilization treatment or other responsive action, and in many cases, the BAER recommendation is 'no treatment.'" (Id. ¶ 6.) If the BAER team does recommend remedial efforts and responses, then it will seek funding, which must be approved by the Forest Supervisor and the USFS regional office, either of whom may modify or reject the request. (Id. ¶¶ 7-8.)
A USFS hydrologist, Grant Loomis, authored a Water Resources Specialist Report ("Water Report") on July 2, 2017. (Doc. 20-5 at 14.) The Water Report identified certain post-wildfire threats and suggested
"treatments to prevent, mitigate or reduce the severity of the threats." (Id.) After considering many factors, such as watershed conditions and pre-and post-fire peak flows, the Water Report observed that the "first few high intensity storms following the fire pose the greatest flash flood hazard to downstream areas." (Id. at 18-19.) The Water Report concluded with an "Emergency Determination," noting "[t]hreats to downstream life and property from post-fire watershed conditions" and "[t]hreats to life and safety on the Highline and Myrtle trails that pass through and below the burdened area from flash flooding." (Id. at 21.)
Shortly after the Water Report issued, on July 13, 2017, the BAER team issued and approved its initial report. (Doc. 20-5 ¶ 15; Doc. 20-5 at 25.) It made several recommendations, including removing floatable debris above private land in Ellison Creek identified as at-risk from post-fire flooding and in Bonita Creek above a potable water supply intake, closing two popular hiking trails within or near the burned area because of the flash flooding risk on the trails and in the campgrounds, and installing warning signs on two forest roads near the burn scar and were likely to be affected by flash flooding. (Id. ¶¶ 38-40). The funding requests were approved on July 13 and 20, 2017. (Id.)
B. Plaintiffs' Gross Negligence & Wrongful Death Claims
Two days after the BAER initial report was issued, on July 15, 2017, fourteen members of the Garcia and Garnica families (collectively, "Plaintiffs") went swimming at a waterhole popularly known as "Cold Springs." (Doc. 36 ¶¶ 45, 61.) Cold Springs is located on Ellison Creek, about 2,000 feet upstream from the Water Wheel picnic site and about 9 miles downstream from the Highline Fire burn perimeter. (Doc. 20-5 ¶ 31.) The United States maintains that Cold Springs is an "undeveloped site" that does not appear on USFS maps. (Doc. 20-5 ¶ 31; Doc. 132 34:25-35:6.) A USFS map identified by Plaintiffs, however, identifies Cold Springs. (Doc. 132 at 38:14-22; Doc. 127-2 at 27.)
While Plaintiffs were swimming, a heavy rain fell on the Mogollon Rim, nearly 10 miles upstream, resulting in a flash flood at Cold Springs. Ten members of the Garcia and Garnica families were swept away and died.
On July 21, 2017, the Forest Supervisor signed an order temporarily closing the East Verde Complex day-use sites and portions of the East Verde River and Ellison Creek corridors. The order included Water Wheel and Cold Springs. (Doc. 127-8 at 27-29.)
Plaintiffs filed suit against the United State of America under the Federal Tort Claims Act ("FTCA"). Plaintiffs' remaining claims are gross negligence pursuant to Arizona Revised Statutes § 33-1551 and wrongful death pursuant to Arizona Revised Statutes § 12-611. (Doc. 36.) Plaintiffs anchor their claims on Mr. Loomis' July 13, 2017, BAER initial report. They argue that Mr. Loomis, the creator of the July 13, 2017, BAER initial report, did not follow the Forest Service Manual, Interim Directive 2520-2017-1 ("Manual") and Forest Service Handbook ("Handbook") in a "technically competent manner." (Doc. 127 at 2.) Plaintiffs specifically challenge the type of hydrological model that Mr. Loomis used, that the BAER interim report did not recommend closing the Water Wheel site, and that the debris jams were not removed on Ellison Creek. (Id. at 8-19.) Plaintiffs allege that as a result, "members of the Garcia and Garnica families were killed in the flash flood." (Doc. 36 ¶ 105.) C. The Forest Service Manual & The Forest Service Handbook
The BAER team, including Mr. Loomis, were following the Manual, and the Handbook. (Doc. 127-4; Doc. 127-6). The Handbook, "provides direction on the process for determining the need for planning, implementing, and managing emergency rehabilitation work for a burned area." (Doc. 122-1 at 69) (emphasis added).
The Manual maintains a chapter on Watershed Protection and Management, which dedicates a section to "Emergency Stabilization — Burned-Area Emergency Response." (Doc. 127-4 at 17-18.) The section's objective is for the USFS to "identify imminent post-wildfire threats to human life and safety, property, and critical natural or cultural resources on National Forest System lands and take immediate actions, as appropriate to manage unacceptable risks." (Id. at 18, § 2523.02.)
The Manual's policy mandates that the USFS do the following:
1. Conduct assessments (sec. 2523.1) promptly on burned areas following wildfires larger than 500 acres to determine if a burned-area emergency... exists. Assessments may also be conducted when potential threats to human life and safety, property, or critical natural or cultural resources exist as a result of a smaller wildfire. Critical values addressed by the BAER program are limited to those listed in section 2523.1, exhibit 01.
...
3. Employ measures that provide sufficient protection at the least cost while meeting risk management objectives.
4. Ensure that approved burned-area emergency stabilization measures are expeditiously accomplished before damages or losses are likely to occur and no later than 1 year after containment of the fire.
Section 2523.1 is titled the Burned-Area Emergency Assessment, and the next paragraph further describes the section.
Section 2523.1, exhibit 01, includes a list of critical values to be considered, which will be discussed below.
(Id., § 2523.03 (emphasis added)).
The Manual provides for a Burned-Area Emergency Assessment, which,
[A]re rapid evaluations conducted to determine if critical values are at risk due to imminent post-fire threats and to develop appropriate actions to manage unacceptable risks. These assessments are not intended to provide a comprehensive evaluation of all fire or suppression damages, to evaluate post-fire damages after they occur, nor to identify long-term rehabilitation or restoration needs. See FSH 2509.13 for guidelines and procedures. The assessment process includes the following steps:
1. Critical Value Identification. Identify critical values on National Forest System lands (ex. 01). Consult with Tribes for assistance in identifying sensitive cultural resource values.
2. Threat Identification. Identify potential threats to critical values, the probability of their occurrence, and the magnitude or cost of the potential damages. Threats may be natural or human caused, but must be related to changed conditions caused by the fire.
3. Risk Evaluation and Emergency Determination. Risks are evaluated using the risk assessment matrix (ex. 02) to determine the level of risk to each critical value. Identify unacceptable risks that signify a burned-area emergency exists. Unacceptable risks are associated with risk assessment designations of very high or high. Unacceptable risks may also be associated with intermediate risks if human life or safety is threatened.
4. Response Action Prescription. When unacceptable risks are identified, prescribe actions that manage the risk either by reducing the probability of occurrence or lessening the anticipated consequences. The following anticipated levels of risk should be used to guide response action decisions: a. Very High and High Risk. Response actions should be considered. b. Intermediate Risk. Response actions may be needed if human life or safety is affected. c. Low and Very Low Risk. Response actions are rarely justified.
5. Response Action Proposals. Develop objectives that address the identified risks and design action plans that meet those objectives. Apply a cost/benefit analysis commensurate with the cost and complexity of planned actions to address whether they will likely substantially reduce risks and be cost effective. Actions should be evaluated based on their: a. Ability to be implemented in a timely manner; b. Effectiveness in reducing the risk; c. Practical and technical feasibility; and d. Cost.
6. Documentation and Funding Request. Complete form FS-2500-8, Burned-Area Report, which provides a summary of the burned area emergency assessment and documents the funding request.
FSH 2509.13 is the Burned-Area Emergency Rehabilitation Handbook.
Exhibit 2 is the BAER Risk Assessment chart, which is depicted below.
(Id. at 19-20, § 2523.1) (emphasis added).
The critical values that the BAER team should evaluate under the first assessment factor described above are "limited to those listed in section 2523.1, exhibit 01." (Id. at 18, § 2523.03.) These include human life and safety on National Forest lands, property on National Forest System lands, natural resources on National Forest System land, and cultural and heritage resources on National Forest System land. (Id. at 21, § 2523.1, Ex. 1.)
The BAER team is also directed to use the following matrix when assessing risks and the emergency determination: Image materials not available for display.
(Id. at 22, § 2523.1, Ex. 2.)
The Manual also provides a section on Emergency Response Actions. It says:
Emergency response actions are response actions necessary to control the immediate impacts of a post-wildfire emergency and are subject to the provisions in 36 CFR 220.4 b(1) regarding National Environment Policy Act requirements. Response actions may be administrative or physical stabilization actions. They are normally short-term or temporary measures that generally do not require maintenance or can be discontinued after objectives have been met. When scheduling emergency response actions, those that protect life and safety should have highest priority. When potential hazards to life or safety on NFS lands are identified, notification of hazardous or unsafe conditions should accompany any other contemplated actions. For potential flooding or other threats that may continue downstream of NFS lands, coordinate and cooperate with the appropriate response agencies.
c. 1. Emergency Response Strategy. Observe the following order in prescribing BAER action strategies:
a. Natural recovery. In situations where no burned-area emergency exists or where practical or effective measures are not feasible, rely on natural recovery. Hazard notification to National Forest users may be appropriate in conjunction with this strategy.
b. Administrative closures. In situations where a burned-area emergency exists and it is possible to restrict access to protect life and safety, or where valid uses will significantly interfere with emergency stabilization objectives or delay critical recovery, administrative closures should be the first consideration. Other measures should only be considered in these situations where administrative closures are not possible or are not effective.
c. Other measures. For other emergency situations, demonstrated effective measures should be applied to manage unacceptable risks to human life, property, and critical natural, cultural and heritage resources....
(Id. at 23, § 2523.2) (emphasis added).
The Handbook, in turn, prescribes emergency rehabilitation treatments. (Doc. 122-1 at 95.) The BAER team is to "[i]dentify site-specific needs and select rehabilitation treatments based on: 1. [t]he location and magnitude of emergency conditions created by the fire" and "2. [t]he effectiveness of specific treatments to prevent or control the emergency conditions that will contribute to surface erosion, flooding, and damages to downstream values." (Id. § 25.)
While conducting the burned-area survey, the BAER team is directed to:
Collect information that is critical for locating and determining the degree of emergency watershed conditions ... Such information includes:
1. Zones of different burn intensity.
2. Areas in which water-repellent conditions exist.
3. Erosion hazard ratings for the burned area. These ratings represent the potential for site productivity loss as well as potential for water quality effects. Identify primary sediment source areas based on the erosion hazard rating.
4. Channel conditions that will influence the ability to carry expected flood flows or will increase the potential for downstream damage or water quality deterioration.
5. Any conditions on existing roads or trails that will cause or promote local flooding, loss of water control, or water quality problems.
6. Expectations concerning the short-term, natural regrowth potential of the burned area and its effectiveness to control the identified emergency conditions.
(Id. § 25.11.)
After "collecting and organizing the information, the [BAER] survey team develops interpretations of the information related to the effects of the observed watershed conditions on the creation of emergency conditions." (Id. at 96, § 25.12.) The BAER team "must state why the conditions within the burned area pose a threat to soil productivity, water quality, or downstream life and property." (Id.) These "statements form the basis for the rehabilitation efforts and must be documented on Form FS-2500-8, Burned-Area Report." (Id.)
"Once the emergency conditions are clearly defined," the BAER team should "identify the areas that are most prone to damage and produce a map showing the flood source areas and areas where soil productivity is jeopardized." (Id. § 25.13.) The BAER team should also evaluate threats to "life and property," which includes "[a]ll of the slope and channel conditions that affect on-site erosion, flooding, or loss of water control can affect downstream values." (Id. § 25.13(3).) "To determine the degree of the threat to life and property," the BAER Team must "estimate
the magnitude of the upslope emergency and the potential for routing floods or debris downstream to vulnerable sites." (Id.)
II. SOVEREIGN IMMUNITY & THE FTCA
The United States enjoys sovereign immunity absent a waiver. See United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). In 1946, Congress enacted the FTCA as a limited waiver of sovereign immunity. "The FTCA permits private suits against the United States for damages for loss of property, injury, or death caused by a government employee's negligence." Lam v. United States, 979 F.3d 665, 672 (9th Cir. 2020). The discretionary function exception, however, exempts the United States from suit if a claim is "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." 28 U.S.C. § 2680(a).
The Supreme Court established a two-part test, the Berkovitsz/Gaubert test, "to determine the types of discretionary acts covered by the [discretionary function exception]." Lam, 979 F.3d at 673; see also Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). First, the Court "must determine whether the challenged actions involve an element of judgment or choice." Terbush v. United States, 516 F.3d 1125, 1129 (internal citation omitted). This inquiry examines the "nature of the conduct, rather than the status of the actor." Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). The exception will not apply if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," and a mandatory directive ends the inquiry because the employee "has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
Second, if the action was discretionary, the Court asks whether it is of the type Congress intended to protect from liability, meaning "whether the action involves a decision susceptible to social, economic, or political policy analysis." Whisnant v. United States, 400 F.3d 1177, 1180-81 (9th Cir. 2005) (citing O'Toole v. United States, 295 F.3d 1029, 1033-34 (9th. Cir. 2002)). If both steps are satisfied, the exception applies even if the decision reflects an abuse of discretion. Terbush, 516 F.3d at 1129 (citing 28 U.S.C. § 2680(a)). "The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Gaubert, 499 U.S. at 325, 111 S.Ct. 1267.
Courts apply the discretionary function exception while heeding the statute's purpose. "[T]he FTCA was created by Congress with the intent to compensate individuals harmed by government negligence, and as a remedial statute, it should be construed liberally, and its exceptions should be read narrowly." Terbush, 516 F.3d at 1135 (internal quotations omitted) (quoting O'Toole, 295 F.3d at 1037); see also Rayonier Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). A plaintiff bears the burden of showing the court has subject matter jurisdiction under FTCA's general waiver of immunity. Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992). The United States, however, has the burden of proving one of the FTCA's exceptions to the waiver of immunity applies. Id. at 702. III. DISCUSSION
The BAER team's initial report, issued and approved on July 13, 2017, just two days before Plaintiffs visited the Water Wheel site, made several remedial and safety recommendations. (Doc. 20-5 at 24-34.) The interim report recommended closing two hiking trails, the Highline Trail and the Myrtle Trail. (Doc. 20-5 ¶¶ 34-35, 39.) The Highline Trail "travels below the base of the Mogollon Rim for approximately 50 miles" and "crosses several channels that burned upstream of the trail crossing." (Id. ¶ 34.) The Myrtle Trail "runs from the top of the Mogollon Rim down to the Highline Trail and was almost entirely within the perimeter of the Highline Fine." (Id. ¶ 35.) The BAER report also recommended removing floatable debris in Ellison Creek above private land identified as being at risk from post-fire flooding, and in Bonita Creek above a potable water supply intake. (Id. ¶ 38.) The BAER report also recommended installing warning signs on two Forest Roads that were near the burn scar. (Id. ¶ 40.)
Several Ninth Circuit opinions explore the discretionary function exception in the context of the Forest Service and forest fires. Most recently, in Schurg v. United States, 63 F.4th 826 (9th Cir. 2023), the court held that the discretionary function exception barred plaintiffs' claims where they argued that a "published incident decision" required USFS personnel to consult them personally about wildfire-suppression activities that occurred on their properties and that they failed to do so. Id. at 831. At the first step, the court found that the USFS's communication with landowners involved an element of choice because no statute, regulation, or policy contained mandatory language regarding the landowner communication. Id. at 832. Next, the court found that the USFS's decisions about notifying the landowners regarding fire-suppression activities near or on their properties were susceptible to a policy analysis because it had to "balance the team's safety with worsening fire conditions" with the "time-intensive nature of reaching members of the public on a personalized basis." Id. at 834.
Likewise, in Esquivel v. United States, 21 F.4th 565 (9th Cir. 2021), the court held that the USFS's actions fell within the discretionary function exception when a wildfire threatened private property and a fire crew obtained a resident's verbal consent before starting suppression activities, but the crew's fire-suppression activities damaged the property. Id. at 570-72, 577. At the first step, the court reasoned that the USFS's communication with the landowners involved an element of choice because no statute, regulation, or policy mandated it. Id. at 574-75. Moreover, the Manual (the same at issue here) provided that "reasonable discretion in decision-making may be required" because of the "dynamic, chaotic, and unpredictable" nature of wildfire. Id. At the second step, the landowner communication was part of the Forest Service's choice of "how to organize and conduct fire suppression operations, which undisputedly requires the exercise of judgment grounded in social, economic, or political policy." Id. at 576.
In Miller v. United States, 163 F.3d 591 (9th Cir. 1998), the court held that the presence of mandatory language in USFS documentation, such as a directive to "apply aggressive suppression action to wildfires that threaten assets," did not "eliminate discretion" because it did not tell the USFS "how to fight the fire." Id. at 594-95. Additionally, the USFS's decision-making related to managing multiple fires simultaneously was susceptible to a policy analysis because it required the agency to "balance competing concerns" such as public
safety, environmental protection, and resource management. Id. at 596.
These cases, and others discussed below, clarify boundaries of the discretionary function as applied to government officials' response to potentially deadly conditions arising from wildfires and flash floods. The Court will now apply the Supreme Court's two-step test to each of Plaintiffs' challenges below.
A. Whether the BAER Team's Acts Were Discretionary
Plaintiffs allege three failures by USFS, each of which the government argues are exempt under the discretionary function exception. These are: (1) failing to "close the Water Wheel picnic site to the public after the BAER team identified debris jams on Ellison and Bonita Creek and determined that the first few high intensity storms after the fire would pose the greatest flash flooding risk," (2) failing to "close the Water Wheel picnic site to the public after the National Weather Service issued a flash flood alert on July 15, 2017," and (3) failing "to take reasonable steps to mitigate the danger posed by the residual effects of the Highline Fire in Ellison Creek, such as removing debris jams and floatable debris as recommended by the BAER team." (Id. ¶ 97.)
1. Failure to Administratively Close the Water Wheel Site
Plaintiffs argue that the USFS should have closed "the Water Wheel picnic site to the public after the BAER team identified debris jams on Ellison and Bonita Creek and determined that the first few high intensity storms after the fire would pose the greatest flash flooding risk." (Doc. 36 ¶ 97.)
When the BAER team conducts its assessment, it should follow six steps, but they "are not intended to provide a comprehensive evaluation of all fire of suppression damages." (Doc. 127-4 at 19, § 2523.1.) One factor includes evaluating risks using the "risk assessment matrix (ex. 02) to determine the level of risk to each critical value." (Id. § 2523.1(3).) The Manual's risk assessment matrix explains that "loss of life or injury to humans" qualifies as a "major" consequence. (Id. at 22.) When looking at the "major" consequence column, with the "probability of damage or loss" column, three of the four outcomes are "very high" or "high" risk. (Id.) Only where the probability of damage or loss is unlikely does the matrix explain that there is a "intermediate" risk. (Id.)
Then, Section 2523.1 prescribes the BAER team to use "the anticipated levels of risk ... to guide response decision actions" and for "very high and high risk[s]" response actions "should be considered." (Id. at 20, § 2523.1(4).) Intermediate risks "may" need a "response action ... if human life or safety is affected." (Id.) Plaintiffs argue that these provisions are mandatory and that an "administrative closure should be the first response action considered when a burned-area emergency exists and it is possible to restrict access to protect life and safety." (Doc. 127 at 8.)
This argument is unpersuasive for two reasons. First, the Manual allows the BAER Team to exercise its discretion when deciding whether to implement a response action, and what that response action should entail. Section 2523.1(4) of the Manual says that the BAER team should "consider" response actions whenever there is a very high or high risk, but the Manual does not require the BAER team to implement or create a response action whenever there is a very high or high risk. Next, Section 2523.2 explains that where a burned-area emergency exists, "administrative closures should be the first consideration." This means that the
BAER team should consider an administrative closure, not that the BAER must implement an administrative closure. If Section 2523.2 had required "administrative closures must go in place," or something to that effect, the policy would direct a mandatory and specific action. But that is not what the Manual says. Both provisions that Plaintiffs rely on use some form of "consider." Section 2523.1(4) says response actions should be considered" and Section 2523.2 says "administrative closures should be the first consideration," Consider means "to think about carefully" or "to take into account." Consider, MERRIAM-WEBSTER DICTIONARY (2023). Neither definition mandates an action. Because both provisions require an element of choice, the first prong of the two-part test is satisfied. Schurg, 63 F.4th at 833.
2. Failure to Close Water Wheel Site After NWS Warning
Plaintiffs also allege that the USFS, its agents, and employees "breached their duty of care" and were grossly negligent when they failed "to close the Water Wheel picnic site to the public after the National Weather Service issued a flash flood alert on July 15, 2017." (Doc. 36 ¶ 97.) The United States argues that there is no statute, regulation, or policy that required USFS to close "the Water Wheel picnic site to the public after the National Weather Service issued a flash flood alert on July 15, 2017." (Doc. 122 at 12.) Plaintiffs have not identified a statute, regulation, or policy requiring the USFS or the BAER Team to have done so and Plaintiffs did not address this point at Oral Argument. (Doc. 132.) Therefore, the first part of the test is satisfied.
3. Failure to Remove Debris Jams and Floatable Debris
Plaintiffs also object to Mr. Loomis' interim BAER Report because it failed "to take reasonable steps, such as removing debris jams and floatable debris as recommend by the BAER team, to mitigate the danger posed by the residual effects of the Highline Fire in Ellison Creek." (Doc. 36 ¶ 97.) In their response to the United States' Motion, however, they challenge the fact that "debris jams on Ellison Creek were not removed before July 15, 2017, but the downstream area nevertheless remained open to visitors." (Doc. 127 at 8.) To support their argument, Plaintiffs contend that Mr. Loomis' hydrology model, the Wildcat5, was inadequate and did not consider the Water Wheel when, according to Plaintiffs and their experts, it should have. (Id. at 9.) Plaintiffs point to Section 23.13(3) of the Handbook. They claim that "the BAER Team was required to 'identify the areas that are most prone to damage' and 'estimate the magnitude of the upslope emergency and the potential for routing floods or debris downstream to vulnerable sites' to determine the degree of the threat to life and property." (Id. at 19.)
Before examining Section 25.13(3), it is important to examine the preceding sections that allow for a more informed analysis. First, Section 25.12 states that after "collecting and organizing the information, the [BAER] survey team develops interpretations of the information related to the effects of the observed watershed conditions on the creation of emergency conditions." (Doc. 122-1 at 96, § 25.12.) The BAER team "must state why the conditions within the burned area pose a threat to soil productivity, water quality, or downstream life and property." (Id.) And these "statements form the basis for the rehabilitation efforts and must be documented on Form FS-2500-8, Burned-Area Report." (Id.) As explained above, "[o]nce the emergency conditions are clearly defined," the BAER team should, "identify the areas that are most prone to damage and produce a map showing the flood source areas
and areas where soil productivity is jeopardized." (Id. § 25.13.) The BAER team then evaluates threats to "life and property," which includes "[a]ll of the slope and channel conditions that affect on-site erosion, flooding, or loss of water control can affect downstream values." (Id. § 25.13(3).) And "[t]o determine the degree of the threat to life and property," the BAER Team should "estimate the magnitude of the upslope emergency and the potential for routing floods or debris downstream to vulnerable sites." (Id.)
Sections 25.12 and 25.13 call for the BAER team's judgment and discretion. Section 25.12 explains that the BAER survey team will develop information "related to the effects of the observed watershed conditions on the creation of emergency conditions" after they have collected and organized information. (Id. § 25.12.) Then, the BEAR team, after defining the emergency conditions, must identify the areas "most prone to damage," which calls on the BAER team's judgment in which problematic areas to prioritize and address. (Id. § 25.13.) Although Section 25.13 does require the BAER team to identify high-risk areas based on (1) soil productivity, (2) water quality, and (3) threats to life and property—the BAER Team ultimately treats a as high-risk area based off its judgment when it assesses which areas "are most prone to damage." (Id., § 25.13(3).)
B. Whether the Acts Involved Considerations of Social, Economic, or Political Policies
As for the second prong, the Court evaluates whether the challenged action—here, the BAER Interim Report and its failure to include the closure of the Water Wheel site or removing debris jams around Ellison Creek—is of the type Congress meant to protect, "i.e., whether the action involves a decision susceptible to social, economic, or political policy analysis." Whisnant, 400 F.3d at 1181 (citing O'Toole, 295 F.3d at 1033-34). As explained above, the focus of this "inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Gaubert, 499 U.S. at 325, 111 S.Ct. 1267.
Plaintiffs heavily rely on Kim v. United States, 940 F.3d 484 (9th Cir. 2019), and Whisnant, 400 F.3d at 1181, for the proposition that "to the extent that Mr. Loomis exercised technical and scientific judgment as to what sites to include in his analysis and what hydrologic model to use those decisions are not protected by the discretionary function exception." (Doc. 127 at 19.)
Plaintiffs correctly observe that the Ninth Circuit has consistently held that scientific and technical judgments fall outside the scope of social, economic, or policy judgments. And that scientific and technical judgments, particularly those affecting safety, are not exempt under the discretionary function exception. But those decisions, and others within the Circuit, are distinguishable because they critique the government's implementation of a plan, not the design of the plan. The latter is challenged here.
In Whisnant, the plaintiff alleged he became sick through regular exposure to the toxic mold that the Defense Commissary Agency "negligently allowed to colonize the commissary's meat department over a period of three years." Whisnant, 400 F.3d at 1179. The plaintiff said, "that the government ignored indications of the dangerous condition of the meat department and intentionally or recklessly ... permitted employees and customers to work and shop at the commissary in spite
of health hazards about which the government knew or should have known." Id. at 1180. The Ninth Circuit held that the discretionary function exception did not apply because plaintiff did "not allege that the government was negligent in designing its safety inspection procedures; rather, he charge[d] that the government was negligent in following through on those procedures to safeguard the health of employees and customers ...." Id. at 1183 (emphasis added).
Here, however, Plaintiffs complain that the USFS was negligent in how it created the BAER report and how it chose to focus on certain areas affected by the Highline Fire based off Mr. Loomis' hydrological report. Plaintiffs criticize Mr. Loomis' hydrological modeling and that the "where and how" was not "technically and scientifically competent." (Doc. 127 at 21.) They also contend that had "the proper [hydrological] modeling been completed, it would have shown an unacceptable risk to human life in and along Ellison Creek, and the BAER Team would have recommended closure of the Ellison Creek streambed to recreation." (Id. at 18.) These grievances question the design of the hydrological modeling, not its implementation.
Similarly, in Kim, two children were killed after a tree limb fell on their tent while camping at Yosemite National Park. Kim, 940 F.3d at 486. Park policies established a "Hazard Tree Management" program, which included a seven-point system that required documenting and quantifying hazardous trees with a rating system. Id. at 488. A government worker, following this seven-point system, failed to remove the tree that ended up killing the children. Id. at 488-89. The court noted that "[r]egardless of the policy considerations that went into the choice to adopt the system, the implementation of such system cannot be said to turn on those same considerations." Id. (emphasis in original). It found that the worker's failure to remove the tree at issue was not protected by the discretionary function exception. Id. at 492. The court reasoned that park workers inspecting trees were not making policy choices given the application of specialized knowledge and professional judgment making this decision. See id. at 489. The court concluded that "once Park officials undertook to evaluate the danger of the trees in the campground, they were required to do so according to the technical criteria set forth in the Park's official policies." Id.
Plaintiffs argue that this case is like Kim because the "Handbook did not ask Mr. Loomis to make any policy choice or allow him to assess post-fire conditions in the watershed based on his social, economic, or political views." (Doc. 127 at 21.) Plaintiffs also argue that under Section 25.13(3), the "Handbook's directive explicitly required him to identify the areas most prone to damage and determine the degree of the threat to life and property by estimating the potential for routing floods or debris downstream to vulnerable sites." (Id.) "His technical decisions as a hydrologist about where and how to complete hydrologic modeling were required to be technically and scientifically competent." (Id.)
But this case is more like Lam, in which the Ninth Circuit held that where agency guidance "contains no criteria or mandates for identifying and removing hazardous trees," the agency retains its discretion. 979 F.3d at 680. Although the Ninth Circuit held that the discretionary function exception did not apply to the removal of hazardous trees in Kim, that decision was based on the government's adoption of a "Seven-Point system" for addressing potentially dangerous trees. 940 F.3d at 488. No similar rule directed USFS's actions here. Plaintiffs, while relying on Section 25.13(3), seem to discredit the fact that Section 25.13 explains that "[o]nce the emergency conditions are clearly defined," the BAER team must "identify the areas that are most prone to damage ... [and] use the following criteria to identify high-risk areas." (Doc. 122-1 at 96, § 25.13.) The clause, "identify areas that are most prone to damage," demonstrates the discretion exercised by the BAER team, and in particular, Mr. Loomis.
Plaintiffs argue that closing sites or removing debris jams are matters of safety concern and do not involve policy-weighing decisions or actions. But in cases when that is true, there is generally no question about how to identify or mitigate the hazard at issue—just whether to do so. See, e.g., Bolt v. United States, 509 F.3d 1028, 1034 (9th Cir. 2007) (snow and ice removal); Whisnant, 400 F.3d at 1183 (mold removal); Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (maintaining the light in a lighthouse).
Here, by contrast, USFS does not simply need to decide whether to implement post-fire remedial plans; it must also decide how to design and carry out that process. That decision requires a balancing of public policy considerations like where to divert and expend resources in areas that are most vulnerable, while balancing budgetary and staffing restrictions. See Lam, 979 F.3d at 681 (referring to "policy considerations, such as safety, budget, [and] staffing"); Nanouk v. United States, 974 F.3d 941, 946-47 (9th Cir. 2020) (decisions arising from "manpower constraints" involve policy judgment). Such considerations are evident in the Manual and Handbook. The Manual explains that "specific treatments to mitigate the emergency conditions that have been identified and mapped within the fire area" should be prescribed while identifying "the minimum level of treatment that is effective in terms of cost, time to implement, and expected results." (Doc. 122-1 at 96, § 25.2.) The Handbook explains that "[t]he time constraint imposed on the [BAER] Team often does not permit to develop site specific, technically precise treatment prescriptions at the time of the initial funding request." (Doc. 122-1 at 136, § 51.1.) Plaintiffs' claims are therefore barred by the FTCA. See Chadd v. United States, 794 F.3d 1104, 1112 (9th Cir. 2015) ("At step two of the discretionary-function-exception analysis, where there is even one policy reason why officials may decide not to take a particular course of action to address a safety concern, the exception applies." (Emphasis in original)).
The Court sympathizes with these families and the survivors. But "[t]he discretionary function exception is designed to prevent the judiciary from using its power to police the decisions of the executive branch." Miller, 163 F.3d at 596. Its "task is not to determine whether the Forest Service made the correct decision in its allocation of resources ... [w]here the government is forced, as it was here, to balance competing concerns, immunity shields the decision." Id.
IV. CONCLUSION
Accordingly,
IT IS ORDERED granting Defendant's Motion for Summary Judgment with respect to the remaining discretionary function exception issue. (Doc. 122.)
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in favor of Defendant without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court must close this case.