Keller Special Trust et al v. United States of America

Filing 46

MEMORANDUM OPINION AND ORDER denying 27 Motion for Summary Judgment. Signed by U.S. District Judge Lawrence L. Piersol on 10/20/17. (DJP)

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FILED OCT 20 2017 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION CLERK ***************************************************************************** * KELLER SPECIAL TRUST: WOOD * RANCH LIMITED PARTNERSHIP, OONAGH WOOD,GENERAL PARTNER; * PERSONAL REPRESENTATIVE OF THE * ESTATE OF LEANOARD J. WOOD, DECEASED; OONAGH WOOD,TRUSTEE * OF THE FAMILY TRUST UNDER THE * MEMORANDUM OPEvilON AND WILL OF LEONARD J. WOOD,Dated December 10, 2003; PAUL AND PHYLLIS * ORDER ON DEFENDANT'S * MOTION FOR SUMMARY GREGG;PHIL LAMPERT: ANNA MARIE * JUDGMENT,DOC.27 CIV 16-5014 * * EVANS; EVANS RANCH NO. 1, L.L.C., * And FREDRIC STEPHAN, * * Plaintiffs, * * * V. * UNITED STATES OF AMERICA, * * Defendant. * * ****************************************,|c,|c:(c,|c***!jt****,|c:jc**********,|c***:|s***,|c***,|c* Pending before the Court is the Defendant's Motion for Summary Judgment, Doe. 27. In its motion. Defendant asserts Plaintiffs' allegations of negligence are barred by the discretionary function exception to the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA). The Court finds that, contrary to Defendant's claims. Plaintiffs are not challenging the decision to implement Stage II fire restrictions. Therefore, as the Court has considered all filings, for the following reasons. Defendant's motion is denied. FACTUAL BACKGROUND Plaintiffs are all owners of private property in Custer County, South Dakota that was destroyed in the "Myrtle Fire," which ignited on July 19, 2012 in the Hell Canyon Ranger District of the Black Hills National Forest near Custer, South Dakota. The fire was sparked when a road grader operated by a United States Forest Service (USFS) employee struck a rock while blading a dirt road—Forest Service Road(FSD)324.ID.

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