Green v. United States
2011 U.S. App. LEXIS 1466
9th Cir.2011Background
- Bullock Fire discovered in Coronado National Forest on May 21, 2002, burning over 30,000 acres.
- Forest Service set containment boundaries aimed at protecting private properties and other assets; appellants’ properties were identified on maps and flagged as at risk.
- Forest Service lit a backfire near appellants’ properties but did not inform or warn the appellants about it or its risks.
- Backfire exceeded containment, burning appellants’ ranches; firefighters testified they were unaware of appellants’ properties due to lack of notice from the Forest Service.
- Appellants filed FTCA claims alleging negligence; district court dismissed under the discretionary function exception to the FTCA.
- Court reviews whether discretionary function exception applied, considering whether the failure to warn is susceptible to policy analysis and whether jurisdiction exists to hear the FTCA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discretionary function exception bars FTCA claims for failure to warn. | Green et al. contend failure to warn is not policy-based. | United States argues discretion shielded conduct under the exception. | Not barred; failure to warn not susceptible to policy analysis. |
| Whether the district court properly applied Terbush and Miller regarding discretion in fire suppression decisions. | Appellants assert discretion applies only to broad fire suppression choices, not notification duties. | US argues Miller and related cases support immunity for discretionary decisions in firefighting. | Discretion not applicable to the failure to notify appellants about the backfire. |
| Whether the Forest Service’s failure to notify or warn constitutes a non-discretionary duty creating FTCA liability. | Notice and warning duties are created by statute/regulation and must be followed. | Discretionary function exception applies to actions grounded in policy choices, including suppression strategies. | Failure to warn is not inherently a discretionary policy decision; FTCA claim survives to the extent plead. |
Key Cases Cited
- Terbush v. United States, 516 F.3d 1125 (9th Cir. 2008) (two-step test for discretionary function exception)
- Miller v. United States, 163 F.3d 591 (9th Cir. 1998) (balancing of policy considerations in fire suppression; discretion over how to attack a fire)
- Sutton v. Earles, 26 F.3d 903 (9th Cir. 1994) (not to warn of a known agency-created hazard not protected by discretion)
- Oberson v. USDA, 514 F.3d 989 (9th Cir. 2008) (not protected when agency-created hazard warning is neglected)
- Parsons v. United States, 811 F. Supp. 1411 (E.D. Cal. 1992) (allocation of resources and failure to communicate can be discretionary)
- Defrees v. United States, 738 F. Supp. 380 (D. Or. 1990) (balancing social and economic values in firefighting decisions can fall within policy)
- Berkovitz v. United States, 486 U.S. 531 (1988) (basis for discretionary function exception; protects policy-based judgments)
- Rayonier Inc. v. United States, 352 U.S. 315 (1957) (government-created dangers require warning of hazards)