This week, the Court addresses the bounds of the discretionary function exception to the Federal Tort Claims Act (FTCA).

SCHURG v. UNITED STATES

The Court holds that the discretionary function exception bars claims based on the Forest Service’s decisions about how to contact landowners affected by a forest fire.

The panel: Judges McKeown, Miller, and Thomas, with Judge McKeown writing the opinion.

Key highlight:  “The Forest Service’s communication with the landowners about fire-suppression activity that had a high probability of occurring on or near their land satisfies both steps of the discretionary function exception. Determining how to consult with private landowners while the Lolo Peak fire raged is precisely the type of decision the discretionary function exception was designed to shield, and the landowners’ claims are thus barred.”

Background: The Lolo Peak fire burned in Western Montana for nearly three months during the summer of 2017. The U.S. Forest Service and the Montana Department of Natural Resources delegated an incident management team “responsibility for fire management activities,” including communicating with the public about the fire. The team’s first incident decision required it to “[c]onsult with private landowners and local fire district authorities if suppression activities have a high probability of occurring on private lands.” In order to reach as many members of the public as possible, the team held public meetings at churches and schools, visited high-traffic areas, and posted updates online and on social media. The team chose these methods over individualized outreach based on “the number of residents in proximity to the fire, the community’s sophistication, and the widespread availability of internet access.” (Internal quotation marks omitted.)

Plaintiffs are landowners whose property was the site of controlled burns lit by the incident management team in order to slow the spread of the fire. Plaintiffs sued the Forest Service, arguing that it was required to personally consult them about fire-suppression activities on their properties. The district court granted summary judgment for the Forest Service on the basis that plaintiffs’ claims were barred by the discretionary function exception to the FTCA.

Result: The Ninth Circuit affirmed.

The United States has waived its sovereign immunity for certain tort claims brought under the FTCA, which authorizes claims arising from “the negligent or wrongful act[s] or omission[s]” of government employees. But the FTCA’s discretionary function exception preserves sovereign immunity, and thus bars FTCA claims, when the government employee’s act or omission was “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” Esquivel v. United States, 21 F.4th 565, 572-73 (9th Cir. 2021). To determine whether the discretionary function exception applies, courts ask (1) whether “the challenged actions involve an ‘element of judgment or choice,” and, if so, (2) whether the “judgment is of the kind that the discretionary function exception was designed to shield.” Id. at 573-74 (internal quotation marks omitted).

The Court held that both steps of the discretionary function exception test were satisfied. As to the first step, an agency exercises judgment or choice when no statute, regulation, or agency policy “dictates the precise manner in which the agency is to complete the challenged task.” Green v. United States, 630 F.3d 1245, 1250 (9th Cir. 2011). Here, no law or policy dictated the precise manner in which the Forest Service communicated with plaintiffs. Although the team’s incident decision required it to consult with landowners “when suppression activities have a high probability of occurring on private lands,” it “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.”

As to the second step, the discretionary function exception was intended to protect agency actions that are based on “social, economic, and political policy.” Esquivel, 21 F.4th at 574. “The challenged decision need not be actually grounded in policy considerations, but must be, by its nature, susceptible to a policy analysis.” Green, 630 F.3d at 1251. The Forest Service’s decision was subject to a policy analysis because it had to balance the incident management team’s safety against the time-intensive work of individually contacting landowners and based its decision on the public’s sophistication and widespread access to the internet. The Court had previously held that communications between fire crews and landowners was covered by the discretionary function exception when, as here, that communication concerned how to conduct and organize fire suppression. The Court distinguished a previous case that held the exception inapplicable to the Forest Service’s failure to contact local landowners at all because in the prior case there was no evidence that the Forest Service had to choose between allocating resources to fire management or to public communication. It had therefore made no policy decisions like the ones that informed the agency action here. Because both steps of the discretionary function exception test were satisfied, plaintiffs’ claims were barred by sovereign immunity.

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