Estate of Kenda K. Gould et al v. United States of America, U.S. Forest Service
OPINION and ORDER denying 3 Motion to Dismiss for Failure to State a Claim. Signed by Judge Donald W. Molloy on 6/3/2021. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ESTATE OF KENDA K. GOULD and
CHARLES PATRICK GOULD,
UNITED STATES OF AMERICA,
UNITED STATES FOREST
In May 2019, a charred tree fell on an all-terrain vehicle (“ATV”) occupied
by Kenda and Patrick Gould while they were driving on the West Fork Fish Creek
Road #7750 (“Road #7750”) near their cabin in the Lolo National Forest. (Doc. 1
at ¶¶ 14–15, 21, 22–23; see Doc. 1-7 (photos).) Kenda was killed and Patrick was
seriously injured. (Doc. 1 at ¶¶ 22, 27; Doc. 1-4 (death certificate).) Patrick sued
the United States under the Federal Tort Claims Act (“FTCA”) on behalf of
himself and as the personal representative of Kenda’s estate (collectively
“Plaintiffs”), alleging that the United States Forest Service (“Forest Service”)
failed to properly survey or maintain the road as to evaluate and prioritize hazards,
including trees that were badly burned during the August 2015 forest fires. (Doc. 1
at ¶¶ 16, 19, 33, 47–48, 50, 52, 62.) The United States seeks to dismiss the
complaint on the grounds that Plaintiffs’ claims are precluded as a matter of law by
either Montana’s off-highway vehicle statute, Mont. Code Ann. § 23–2–822, or
Montana’s recreational use statute, § 70–16–302. (Doc. 3.) The motion is denied.
To survive a motion to dismiss under Rule 12(b)(6), a claim must allege
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Dismissal under Rule 12(b)(6) is appropriate, however, “where there is no
cognizable legal theory or an absence of sufficient facts alleged to support a
cognizable legal theory.” L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th
Cir. 2017) (internal quotation marks omitted). At this stage of the proceedings, the
factual allegations in the complaint are taken as true and the pleadings are
construed in the light most favorable to Plaintiffs. Benavidez v. Cty. of San Diego,
993 F.3d 1134, 1144 (9th Cir. 2021).1
While the determination of a Rule 12(b)(6) motion is generally limited to the
pleadings, see Fed. R. Civ. P. 12(d), “[a] court may . . . consider certain
materials—documents attached to the complaint, documents incorporated by
reference in the complaint, or matters of judicial notice—without converting the
motion to dismiss into a motion for summary judgment,” United States v. Ritchie,
The United States seeks to dismiss the Complaint on the ground that
Plaintiffs’ claims are barred by either Montana’s off-highway vehicle statute or
Montana’s recreational use statute. Neither argument is persuasive.
Off-Highway Vehicle Statute
The United States first argues that because Plaintiffs were operating an off-
highway vehicle—a registered side-by-side 2014 Arctic Cat ATV, Cat Prowler 700
HDX, (see Doc. 1 at ¶¶ 15, 24)—at the time of the accident, Plaintiffs are solely
responsible for any resulting injury. Under Montana law, “[a]n off-highway
vehicle operator shall accept all legal responsibility for injury or damage of any
kind to the extent that the injury or damage results from risks inherent in the sport
of off-highway vehicle use . . ..” § 23–2–822(1). For the purposes of this statute,
“‘off-highway vehicle’ means a self-propelled vehicle for recreation or crosscountry travel on public lands, trails, easements, lakes, rivers, or streams. The term
includes but is not limited to motorcycles, quadricycles, dune buggies . . . and any
other means of land transportation deriving motive power from any source other
than muscle or wind.” § 23–2–801(1).
342 F.3d 903, 908 (9th Cir. 2003); see also Marder v. Lopez, 450 F.3d 445, 448
(9th Cir. 2006). Here, Plaintiffs have attached eight documents to the Complaint,
(Docs. 1-1 through 1-8), and a judicially noticeable map to their brief in
opposition, (Doc. 5-1). Those documents are considered under Ritchie.
In response, Plaintiffs do not dispute that they were operating an offhighway vehicle under the above description. However, specifically excepted
from this definition are “vehicles . . . issued a certificate of title and registered
under the laws of the state, unless the vehicle is used for off-road recreation on
public lands.” § 23–2–801(2)(c). Because the ATV at issue here was (1) licensed
and (2) traveling on a public road at the time of the accident, Plaintiffs insist that
§ 23–2–822 does not apply. Because there is no dispute that the ATV was licensed
and registered, (see Doc. 1 at ¶ 24), the present defugalty centers on the meaning of
“is used for off-road recreation on public lands.”
The United States insists that because Plaintiffs “predominantly” used this
ATV for recreational purposes, it qualifies as a vehicle “used for off-road
recreation on public lands” at the time of the accident regardless of its function in
that moment. On the other hand, Plaintiffs argue that the “use” enshrined in § 23–
2–801(2)(c) is context specific; i.e., was the vehicle acting as an “off-highway
vehicle” at the relevant time? Here, Plaintiffs were driving the ATV on an
established road from a friend’s barbeque back to their own cabin at the time the
tree fell. (Doc. 1 at ¶ 14.) They therefore argue that the ATV was not an offhighway vehicle. Plaintiffs have the better argument.
“In the construction of a statute, the office of the judge is simply to ascertain
and declare what is in terms or in substance contained therein, not to insert what
has been omitted or to omit what has been inserted.” § 1–2–101. Statutory
interpretation begins with a statute’s plain language and, if the language is clear
and unambiguous, no further interpretation is required. Mont. Sports Shooting
Ass’n, Inc. v. Mont. Dep’t of Fish, Wildlife & Parks, 185 P.3d 1003, 1006 (Mont.
2008). If the text is ambiguous, however, the next step is to determine the intent of
the legislature. Id.; see also § 1–2–102.
Here, the United States first attempts to insert the word “predominantly” into
the statute to modify “use.” However, nothing in the language of § 23–2–801(2)(c)
suggests that “use” is qualified in this way, and “[c]ourts should not insert
language into a statute that the legislature has omitted.” Winslow v. Mont. Rail
Link, Inc., 16 P.3d 992, 995 (Mont. 2000). Nor is it clear how the law would
assess “primary” or “predominant” use in this context.2 The United States then
states that an ATV “does not morph from an off-road vehicle to a standard
passenger car or truck based” on its specific operation in a particular instance.
(Doc. 6 at 4.) But because that is exactly what happens under the statute,
Plaintiffs’ interpretation is the only reasonable one.
First, if the second half of § 23–2–801(2)(c) merely required that a vehicle
be used off-road or capable of off-road use, it would apply to all off-road vehicles,
Even if the United States’ interpretation was reasonable—it is not—it is unclear if
Plaintiffs’ use of the ATV was “predominantly” off-road given its use here.
titled or not. The statutory exception for “street legal” ATVs would therefore be
meaningless, and the Court must “operate under the presumption that the
Legislature does not pass meaningless legislation.” State v. Johnson, 277 P.3d
1232, 1236 (Mont. 2012). Second, courts must “interpret related statutes to
harmonize and give effect to each and to avoid absurd results.” Gregg v. Whitefish
City Council, 99 P.3d 151, 152 (Mont. 2004). Here, Montana’s statutory scheme
consistently distinguishes between vehicles operating on highways and public
roads from those operating “off-road.” But that distinction is situational, not
absolute. For example, the definition of “off-highway vehicle” in § 61–1–101
excludes “motor vehicles designed to transport persons or property on highways
unless the vehicle is used for off-road recreation on public lands.” § 61–1–
101(51)(b)(iii) (emphasis added). This means that even a registered truck or jeep
is considered an “off-highway vehicle” in certain circumstances yet there is no
question that such vehicles qualify as “motor vehicles” while operating on a road.
Street-legal ATVs are the other side of the same coin. The definition of “motor
vehicle” includes “a quadricycle . . . equipped for use on the highways.” § 61–1–
101(47)(a)(ii). Vehicle classification under this regime is functional: if an ATV is
titled and registered like a car, it is treated like a car for liability purposes so long
as it is operated as a car. Reading the statute differently leads to absurd results.
Here, Plaintiffs were driving the ATV between a friend’s house and their
cabin on an established road, something the United States recognizes they could
have done in a car. (Doc. 6 at 4.) The ATV was not an “off-highway vehicle” at
the time the tree fell as to trigger § 23–2–822.3
Recreational Use Liability Statute
Alternatively, the United States argues that its liability is foreclosed by
Montana’s recreational use statutes. Under Montana law,
[a] person who uses property, including property owned or leased by a
public entity, for recreational purposes, with or without permission,
does so without any assurance from the landowner that the property is
safe for any purpose if the person does not give a valuable consideration
to the landowner in exchange for the recreational use of the property.
The landowner owes the person no duty of care with respect to the
condition of the property, except that the landowner is liable to the
person for any injury to person or property for an act or omission that
constitutes willful or wanton misconduct.
§ 70–16–302(1). In response, Plaintiffs argue that they were not recreating at the
time of the accident but, even if they were, they can prove “willful and wanton
misconduct.” Neither issue can be resolved as a matter of law.
Under Montana law, “recreational purposes” includes “pleasure driving . . .
touring or viewing cultural and historic sites and monuments, . . . or other pleasure
In a footnote the United States distinguishes between “forest development
road[s]” and “highways.” (Doc. 6 at 4 n.1.) Although ominous sounding, the
United States does not explain how this distinction is legally significant here.
expeditions.” § 70–16–301. According to Plaintiffs, their commute from a
friend’s house to their cabin was a purely technical means to get from Point A to
Point B and was therefore not “recreational” in the general sense of the word. See
Dobrocke v. City of Columbia Falls, 8 P.3d 71, 83 (Mont. 2000) overruled on
other grounds by Roberts v. Nickey, 43 P.3d 263 (Mont. 2002) (“We cannot
conclude that the general public would regard as reasonable that simply walking to
and from one’s home is one of the purposes contemplated by the recreational use
statute.”). Construing the facts in Plaintiffs’ favor, as is required at this stage of
the proceeding, their use may fall outside of what is considered “recreational.”
Dismissal is therefore not appropriate on these grounds.
Nevertheless, a finding that Plaintiffs’ use was categorically not for
“recreational purposes” is not appropriate either. The United States persuasively
argues that this situation is not necessarily an ordinary commute in that Plaintiffs
were driving an ATV through a national forest to go to their cabin; these facts
sound in recreation. The nature of Plaintiffs’ use is therefore a fact question. See
Cristler v. United States, 2008 WL 11348476, at *2 (D. Mont. Nov. 17, 2008).
“Willful or Wanton Misconduct”
If Plaintiffs entered the Forest Service’s land for “recreational purposes”
then the applicable standard of care is “willful or wanton misconduct.” See id.;
compare § 70–16–302 with § 27–1–701. As discussed above, it is not clear that
this standard applies here. However, the parties dispute whether the Complaint
alleges willful or wanton misconduct should such a showing be required. Under
Montana law, “willful” means an intentional act or omission, while “wanton” has
been synonymized with “reckless.” Jobe v. City of Polson, 94 P.3d 743, 746
(Mont. 2004). Here, Plaintiffs allege that the Forest Service undertook to remove
burned trees following the August 2015 fires, (Doc. 1 at ¶ 18), and failed to
remove any along Road #7750 despite the fact that trees had fallen across the road
and were removed, possibly by the Forest Service itself, (id. at ¶ 20). Plaintiffs
further allege that the Forest Service knew or should have known of the trees and
the risk they posed, (id. at ¶¶ 30–32), but failed to take any action, (id. at ¶¶ 46–
70). Construing these allegations in Plaintiffs’ favor, they have adequately pled
“willful or wanton misconduct.”
IT IS ORDERED that the motion to dismiss (Doc. 3) is DENIED.
DATED this 3rd day of June, 2021.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?