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Miller v. United States

 

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Plaintiffs brought suit against the federal government under the Federal Tort Claims Act (FTCA)[1] for damages to their cattle ranch caused by a forest fire that originated in a national forest and spread to their property. The district court granted summary judgment for the government, holding that the FTCA’s discretionary function exception[2] immunized the government from suit. The Ninth Circuit affirmed.

On August 6, 1990, several lightning-ignited forest fires raged through the Snow Mountain Ranger District of the Ochoco National Forest. At approximately 7:00 p.m., a forest service employee first spotted the fire that damaged the plaintiffs’ property. Employees of the United States Forest Service promptly ordered fire suppression equipment, all of which had been committed to other fires. On-the-ground fire suppression efforts did not begin for the fire in question until seventeen to twenty-three hours after the fire was first sighted. The fire joined two other fires and crossed onto the plaintiffs’ property on the afternoon of August 9, 1990, damaging plaintiffs’ cattle ranch.

The FTCA waives sovereign immunity for tort actions against the federal government arising out of the negligent conduct of federal employees acting within the scope of their employment.[3] However, the statute contains an exception that preserves sovereign immunity when the claim is based on a discretionary act or omission.[4] The court applied a two-part discretionary function test[5] and concluded that the statute’s exception barred the plaintiffs’ claim.

The first prong of the two-part test required the court to determine whether the actions of the Forest Service employees necessarily involved an element of choice. The court cited as precedent two district court opinions for the proposition that discretionary immunity applies to lightning-induced multiple fire situations.[6] No federal statute, regulation, or policy specifically prescribed a particular course of action for the Forest Service in combating this fire. On the contrary, the Forest Service’s Mobilization Guide explicitly allows for discretion in multiple fire situations by stating that “‘initial attack response may vary depending on availability of resources.'”[7] The standards and procedures proffered by the appellants “outline[d] certain requirements for fire suppression, [but] they [did] not eliminate discretion because they [did] not tell firefighters how to fight the fire.”[8]

The second prong of the two-step analysis required the court to consider whether the Forest Service’s actions were susceptible to a policy analysis grounded in social, economic, or political concerns. The court again referred to the two earlier district court opinions, this time for the proposition that decisions regarding the allocation of fire suppression resources are grounded in public policy.[9] The policies and objectives that govern these decisions involve a balancing of considerations such as cost, public safety, firefighter safety, and resource damage. These considerations reflect the type of social, economic, and political concerns that the FTCA’s discretionary function exception is designed to protect.

Finally, the Ninth Circuit addressed the appellants’ heavy reliance on Rayonier, Inc. v. United States.[10] In that case, heavy winds revived a fire put out by the Forest Service more than a month prior, resulting in destruction of private property. The United States Supreme Court in that case held that the FTCA did not immunize the Forest Service from suit.[11] Rayonier did not include a discussion of the discretionary function exception. At the time it issued the Rayonier opinion, the Court had not yet formulated the two-step analysis approach to discretionary immunity. For these reasons, Rayonier did not control the case at bar, and the court rejected the appellants’ reliance on it.


[1] 28 U.S.C. §§ 2671-2680 (1994).

[2] Id. § 2680.

[3] Id.

[4] Id.

[5] See United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 813-14 (1984).

[6] Parsons v. United States, 811 F. Supp. 1411, 1421 (E.D. Cal. 1992); Defrees v. United States, 738 F. Supp. 380, 384 (D. Or. 1990).

[7] Miller v. United States, 163 F.3d 591, 594-95 (9th Cir. 1998) (quoting the Forest Service’s Mobilitzation Guide).

[8] Id. at 595.

[9] Id. at 596 (citing Parsons, 811 F. Supp. at 1420, and Defrees, 738 F. Supp. at 385).

[10] 352 U.S. 315 (1957).

[11] Id. at 317-18.

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