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Reed ex rel. Allen v. United States Department of Interior

 

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In a case involving recreational use of federal public lands, the Ninth Circuit affirmed the district court’s grant of the United States’s motion for summary judgment for lack of subject matter jurisdiction, after determining that the plaintiff’s suit was barred by the discretionary functions exception to the Federal Tort Claims Act (FTCA).[1] In 1996, Daniel Reed attended the Burning Man Festival in the Black Rock Desert playa in Nevada. On the last night of the festival, Reed was severely injured when a car ran over the tent in which Reed was sleeping. The Bureau of Land Management (BLM) issued a permit for the event because the agency owns and manages the federal land on which the festival was held. Reed filed suit under the FTCA against the United States for damages.

The Ninth Circuit upheld the district court’s conclusion that BLM’s actions fell within the discretionary functions exception to the FTCA.[2] The FTCA waives the federal “[g]overnment’s sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment.”[3] However, the discretionary functions exception limits the waiver of sovereign immunity. The FTCA does not apply to claims “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 be abused.”[4] The Supreme Court has established a two-part test to determine whether an action qualifies for the discretionary functions exception. If the court determines that the challenged action involves an element of choice or judgment,[5] the court must then decide “whether that judgment is of the kind that the discretionary functions exception was designed to shield.”[6] Applying the test, the Ninth Circuit rejected Reed’s contention that BLM’s actions fell outside the discretionary functions exception.

The Ninth Circuit determined that BLM exercised its discretion in conducting the challenged activities and acted within the scope of the discretionary functions exception. The fact that Reed disagreed with the manner in which BLM exercised its discretion was irrelevant for purposes of applying the discretionary functions exception. The court concluded that BLM issued one discretionary permit for the event and that the agency had discretion as to the terms of the permit and how those terms were enforced.

First, Reed argued that BLM failed to require Burning Man Festival organizers to warn of the hazard of camping in “an area subject to unrestricted night-time vehicular travel”[7] and approved a faulty site plan. The court concluded that BLM’s act of granting the permit met the discretionary functions test. BLM had discretion to grant the permit and could establish restrictions on the permit. Although the agency’s statutory authority gives it specific authority to include restrictions in a permit, no law, regulation, or policy “requires a particular course of action.”[8] The court decided that it was within BLM’s discretion to balance “competing public policy concerns, including concerns about public access, safety, resource allocation, and the environment.”[9] Therefore, issuing the permit was a discretionary act.

The record also provided evidence that BLM exercised discretion in granting the permit for the festival. After receiving the permit application, BLM began its preliminary process of review by complying with the National Environmental Policy Act (NEPA).[10] The agency prepared an environmental assessment (EA) and issued a finding of no significant impact (FONSI). Review and approval of the site plan submitted by event organizers also involved agency discretion. Furthermore, BLM took into consideration the congressional directives stated in the Federal Land Policy and Management Act of 1976 (FLPMA).[11] According to BLM, the land-use plan in place at the time directed BLM to provide “as many recreational opportunities as possible . . . without undue environmental degradation.”[12] As a result, the Ninth Circuit concluded that all the actions BLM took in approving the event permit were discretionary.

Reed next argued that even if BLM exercised its discretion in granting the permit, approval of an event like the Burning Man Festival was not the type protected by the discretionary functions exception. The court rejected this argument because Reed was disputing the manner in which BLM exercised its discretion. The Ninth Circuit stated that “this issue is the type of judgment the discretionary function exception was designed to shield.”[13]

Reed also argued that BLM’s regulations and policy required monitoring of the event and the failure to do so placed the action outside the exception. The Ninth Circuit found evidence in the record that BLM did monitor the event, and Reed was actually taking issue with the manner in which the agency chose to monitor. The court concluded that BLM’s decision to limit monitoring to set hours was entirely within the discretion of the agency because the agency’s regulations did not specify when monitoring had to occur.[14]

Finally, Reed argued that BLM had a duty to suspend the permit once the event put public safety in jeopardy. The court did not find evidence in the record which showed that BLM was aware that the public safety was in jeopardy. In addition, because the BLM handbook did not set standards for when a permit should be suspended, the decision to suspend a permit was within the agency’s discretion. The court empathized with the tragedy of the accident, but nevertheless held that the government was not liable for Reed’s injuries.


[1] 28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680 (1994 & Supp. IV 1998).

[2] See also Kelly v. United States, 241 F.3d 755 (9th Cir. 2001) (holding that the United States was immune from liability under the FTCA for the death of two pilots because the extent and type of the United States Forest Service’s flight training is a matter left to the agency’s discretion) (citing Reed ex rel. Allen v. United States Dep’t of Interior, 231 F.3d 501 (9th Cir. 2000)); Marlys Bear Medicine v. United States ex rel. Sec’y of Dep’t of Interior, 241 F.3d. 1208 (9th Cir. 2001) (holding that the Bureau of Indian Affairs was not immune under the discretionary functions exception to the FTCA because the Bureau contractually retained the right to supervise and inspect the logging operation).

[3] Reed ex rel. Allen v. United States Dep’t of Interior, 231 F.3d 501, 504 (9th Cir. 2000) (quoting Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996)).

[4] 28 U.S.C. § 2680(a) (1994).

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

[6] Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).

[7] 231 F.3d at 504.

[8] Id.

[9] Id. at 505.

[10] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (1994 & Supp. III 1997).

[11] 43 U.S.C. §§ 1701-1785 (1994 & Supp. III 1997).

[12] 231 F.3d at 505.

[13] Id.

[14] 43 C.F.R. § 2920.9-2 (2000) (stating BLM shall inspect and monitor area to assure compliance with management plan and protection of resources, the environment, and the public health, safety, and welfare).

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