Hardscrabble Ranch, L.L.C. v. United States
2016 U.S. App. LEXIS 20038
| 10th Cir. | 2016Background
- Lightning ignited the Sand Gulch Fire on April 26, 2011, in a remote part of the Pike and San Isabel National Forests (PSICC); initial size small but could have been extinguished.
- The U.S. Forest Service (USFS) adopted a partial suppression strategy to allow ecological fire benefits while trying to protect private land about 0.5 miles east; reasons included firefighter safety, existing control features, predicted snow, and accumulated fuels.
- High winds caused the fire to cross containment lines on April 29–30; USFS switched to full suppression on April 30; total burn was 496 acres, including 154 acres of Hardscrabble Ranch.
- Hardscrabble Ranch sued under the Federal Tort Claims Act (FTCA), alleging USFS violated mandatory policies (e.g., LRMP amendment EA Decision Checklist, Fire Management Plan, daily monitoring) and thus had no discretion; district court granted summary judgment for the government under the FTCA discretionary-function exception.
- The Tenth Circuit reviewed de novo, framed plaintiff’s burden under the two-part Berkovitz/Gaubert test: (1) whether a regulation specifically prescribes conduct (no discretion), and (2) whether the challenged conduct is grounded in policy considerations (protected).
- Court found the Decision Checklist and other documents did not strip the USFS of discretion; the Incident Decision and monitoring showed discretionary balancing of firefighter safety, private-property protection, fuel reduction, and ecological objectives, so the discretionary-function exception barred liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USFS had non-discretionary duties that removed FTCA exception | USFS failed to follow mandatory Decision Checklist, Fire Management Plan conditions, and daily monitoring, so no discretion existed | Policies did not specifically prescribe an employee’s actions; Incident Decision and practice show discretion in applying checklist and conditions | Held for Defendant: documents did not mandate a specific course; USFS retained discretion |
| Whether any alleged failure was protected policy judgment under FTCA | Even if discretionary, conduct was not policy-based because formal decision publication lagged and checklist wasn’t used | Decisions balanced safety, property, resource, and ecological policies — classic policy judgments | Held for Defendant: actions susceptible to policy analysis and therefore protected |
| Whether abuse of discretion forecloses FTCA protection | Abuse of discretion (e.g., answering checklist incorrectly) removes protection | Abuse is encompassed by §2680(a); abuse does not eliminate the discretionary-function exception | Held for Defendant: abuse-of-discretion argument insufficient to defeat the exception |
| Whether absence of updated Fire Management Plan precluded use-of-fire decisions | Fire-management use required pre-approved conditions in plan; absence means no authorized areas, so USFS had no discretion to allow fire use | LRMP designated Wet Mountains as predetermined area; EA did not mandate creation of specific conditions, so specifying conditions is discretionary | Held for Defendant: designation and lack of mandatory directive left identification of conditions to discretion |
Key Cases Cited
- United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (establishes discretionary-function exception context)
- Berkovitz v. United States, 486 U.S. 531 (sets two-part test for discretionary-function exception)
- Gaubert v. United States, 499 U.S. 315 (presumption that discretionary acts are grounded in policy; focus on whether actions are susceptible to policy analysis)
- Elder v. United States, 312 F.3d 1172 (10th Cir.) (plaintiff bears burden to show exception does not apply)
- Fowler v. United States, 647 F.3d 1232 (10th Cir.) (standard of review for summary judgment)
- Weiss v. United States, 787 F.2d 518 (10th Cir.) (if duty is not mandatory or clearly specified, it is discretionary)
- Miller v. United States, 163 F.3d 591 (9th Cir.) (existence of some mandatory language does not eliminate discretion)