Reed et al v. United States of America (TWP2)
Filing
41
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas W Phillips on 12/9/19. (ABF)
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
MICHAEL B. REED, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
BRITTANY N. HYRE ANCULLE, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
BRITTANY ADKINS, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
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No. 3:18-CV-201
No. 3:18-CV-308
No. 3:18-CV-310
MEMORANDUM OPINION
This civil action is before the Court for consideration of Defendant’s motion to
dismiss for lack of jurisdiction [Case No. 3:18-cv-201 (“Reed case”), doc. 23; Case No.
3:18-cv-308 (“Anculle case”), doc. 19; Case No. 3:18-cv-310 (“Adkins case”), doc. 19].
Plaintiffs have responded [Reed case, doc. 29; Anculle case, doc. 21; Adkins case, doc.
21], and Defendant has replied [Reed case, doc. 34; Anculle case, doc. 28; Adkins case,
doc. 28]. On July 22, 2019, the Court heard oral argument on this motion. This matter is
now ripe for the Court’s determination. For the reasons that follow, Defendant’s motion
to dismiss for lack of jurisdiction [Reed case, doc. 23; Anculle case, doc. 19; Adkins case,
doc. 19] will be denied.
I.
BACKGROUND
This case stems from the Chimney Tops 2 fire that began in the Great Smoky
Mountains National Park, and ravaged the City of Gatlinburg, in November 2016.
Plaintiffs have now sued the United States under the Federal Tort Claims Act (“FTCA”),
seeking redress for their losses, which include property losses and losses of life. [Doc. 1
at 7, 20-21]. 1 Plaintiffs allege that the National Park Service (“NPS”) was negligent in
several respects relating to their response to the wildfire, which burned within the Park for
several days before spreading to Gatlinburg. Specifically, Plaintiffs allege that the NPS
was negligent in failing to monitor the wildfire overnight, failing to comply with command
structure requirements, failing to adhere to mandatory fire management policies and
requirements, and failing to warn Park neighbors. [Id. at 114-146]. Plaintiff Reed has also
raised claims of wrongful death and loss of society and consortium relating to the deaths
1
Each of these three cases contain the same substantive allegations with nearly identical
language. For ease, the Court will refer to the documents in lead case, 3:18-cv-201. All citations
to the record not otherwise specified refer to documents in the Reed case.
2
of his wife, Constance Reed, and two young daughters, Chloe and Lily Reed. [Id. at
145-146].
The government has filed a motion to dismiss for lack of subject matter jurisdiction,
asserting that the claims all fall within the discretionary function exception to the
government’s waiver of sovereign immunity under the FTCA. [Doc. 23]. Plaintiffs
respond, contesting the applicability of the discretionary function exception as to each
claim. The government replies, reiterating many of its original arguments. [Doc. 34].
II.
STANDARD OF REVIEW
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). In other words, federal courts “have only the power
that is authorized by Article III of the Constitution and the statutes enacted by Congress
pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). As
such, subject matter jurisdiction is a threshold issue that the Court must address and resolve
prior to reaching the merits of the case. Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 94-95 (1998); see also Fed. R. Civ. P. 12(h)(3) (providing that, “[i]f the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action”). Unlike a motion to dismiss for failure to state a claim under Rule 12(b)(6), “where
subject matter jurisdiction is challenged under Rule 12(b)(1)[,] . . . the plaintiff has the
burden of proving jurisdiction in order to survive the motion.” RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting Rogers v. Stratton
Indus., 798 F.2d 913, 915 (6th Cir. 1986)).
3
Rule 12(b)(1) motions fall into two categories: “facial attacks and factual attacks.”
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “A facial attack is a challenge
to the sufficiency of the pleading itself.” Id. In considering whether jurisdiction has been
established on the face of the pleading, “the court must take the material allegations of the
[pleading] as true and construed in the light most favorable to the nonmoving party.” Id.
(citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)). “A factual attack, on the other
hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to
the factual existence of subject matter jurisdiction.” Id. In considering whether jurisdiction
has been proved as a matter of fact, “a trial court has wide discretion to allow affidavits,
documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts.”
Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). “Moreover,
on the question of subject matter jurisdiction the court is not limited to jurisdictional
allegations of the complaint but may properly consider whatever evidence is submitted for
the limited purpose of ascertaining whether subject matter jurisdiction exists.” Pryor Oil
Co., Inc. v. United States, 299 F. Supp. 2d 804, 807–08 (E.D. Tenn. 2003) (citing Rogers,
798 F.2d at 915-16 (other citations omitted)).
III.
DISCUSSION
A. Abandoned Claims
As an initial matter, although the parties briefed the issue of the application of the
discretionary function exception to each of the claims raised in the complaint, at a hearing
on this matter, Plaintiffs limited their arguments to the failure to warn claim. Specifically,
Plaintiffs stated “make no mistake, we’re not challenging how they fought the fire. We are
4
challenging the warning decision, not how they fought the fire. They have the right to
decide to let it burn. They have the right to decide to put it out.” [Doc. 40 at 15]. Defendant
responded that this statement carved out 90 percent of the case. [Id. at 35]. The Court then
specifically asked counsel for Plaintiffs to respond to this assertion, that the only claim left
in this case is the failure to warn claim. [Id. at 41]. Counsel for Plaintiffs stated
unequivocally, “I agree.” The Court again asked whether the failure to warn was the only
issue that it needed to address, and counsel responded:
I think you could find under the first part of the Gaubert test that the safety
policy that we set out was mandatory. I think you could find that, because
the language, it says, it will be done. Now, with that said, I will admit that
90 percent of the cases are not won by the plaintiff on the first part of the
Gaubert test. So – but the real – the real crux of this case is the failure to
warn case.
[Id.].
In light of counsel’s statements, the Court must conclude that Plaintiffs have
abandoned their claims of negligence that are not premised on the failure to warn. In their
complaint, Plaintiffs faulted the NPS for the following acts of negligence: (1) failing to
monitor the wildfire overnight; (2) failing to comply with command structure requirements,
by allowing Fire Management Officer Greg Salansky to serve in multiple overlapping
roles; (3) failing to utilize a “Step-Up Plan” to determine when the fire danger had
increased; (4) failing to perform a required complexity analysis of the fire danger;
(5) negligently implementing a 410-acre containment box; (6) failing to adopt contingency
plans in case the fire escaped the containment box; (7) disregarding fire-behavior modeling
and weather forecast; (8) failing to utilize available air operations to suppress the fire;
5
(9) failing to implement a universal communications system to permit inter-agency
communications; (10) failing to use the Wildland Fire Decision Support System; and
(11) failing to provide timely and accurate notice and warning to park neighbors, local
government officials, and others about the status and imminent danger of the fire. [Doc.
1 at 114-146]. The vast majority of these claims directly attack how the NPS decided to
fight the fire—including the decision to “let it burn”—which Plaintiffs now state is not at
issue. Moreover, the “safety policy” referenced by Plaintiffs’ counsel, when asked whether
failure to warn was the only remaining issue in this case, appears to be a reference to part
of counsel’s argument relating to the directives that Plaintiffs assert mandate that the NPS
warn of wildfire danger. Accordingly, based on counsel’s statements at the hearing on this
matter, the Court concludes that Plaintiffs have abandoned all claims of negligence except
their allegation that the NPS negligently failed to warn of the danger posed by the Chimney
Tops 2 fire. In light of this, Defendant’s motion to dismiss [doc. 23] will be denied as moot
as to Plaintiffs’ abandoned claims.
B. Failure to Warn
In the Sixth Circuit, a plaintiff can invoke jurisdiction under the FTCA “only if the
complaint is facially outside the exceptions [set forth in the FTCA].” Carlyle v. Dept. of
the Army, 674 F.2d 554, 556 (6th Cir. 1982). The burden is on Plaintiff to plead sufficiently
to demonstrate that the discretionary function exception does not apply. Hatcher v. United
States, 855 F. Supp. 2d 728, 731-32 (E.D. Tenn. 2012).
It is well established that the United States, as a sovereign, may not be sued without
its specific consent. United States v. Sherwood, 312 U.S. 584, 586 (1941); Lundstrum v.
6
Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991); Garrett v. United States, 640 F.2d 24, 26 (6th
Cir. 1981). Plaintiffs allege jurisdiction over the United States pursuant to the FTCA. The
FTCA provides a limited waiver of sovereign immunity, that is, a waiver that only applies
to certain tort claims for:
injury or loss of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). This limited waiver of the government's sovereign immunity is
further narrowed by certain enumerated exceptions. See 28 U.S.C. 2680. Among these is
the discretionary function exception, which excludes from the waiver of sovereign
immunity the following:
[a]ny claim . . . based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion
involved be abused.
28 U.S.C. § 2680(a). “The exception covers only acts that are discretionary in nature, acts
that ‘involv[e] an element or judgment or choice.’” United States v. Gaubert, 499 U.S.
315, 322 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). The
purpose of this exception is “to prevent judicial ‘second-guessing’ of legislative and
administrative decisions.” Myers v. United States, 17 F.3d 890, 894 (6th Cir. 1994)
(quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 814 (1984)). The existence of negligence is irrelevant when determining
whether the discretionary function exception applies. Rosebush v. United States, 119 F.3d
7
438, 442 (6th Cir. 1997). If the discretionary function exception applies, and there is no
other waiver of the government's sovereign immunity, then the court lacks subject matter
jurisdiction over Plaintiffs’ FTCA claims. Sharp ex rel. Estate of Sharp v. United States,
401 F.3d 440, 443 (6th Cir. 2005).
The Supreme Court has established a two-prong test for evaluating whether the
discretionary function exception to the waiver of sovereign immunity in the FTCA applies.
See Gaubert, 499 U.S. at 328-32. First, the Court must determine “whether the challenged
actions were discretionary, or whether they were instead controlled by mandatory statutes
or regulations.” Id. at 328. Second, the Court must determine whether the “actions in
question involved the kind of policy judgment that the discretionary function exception
was designed to shield.” Id. at 332. There is a strong presumption that the second part of
the Gaubert test is satisfied if a court concludes, in the first step, that the agency was
exercising discretion. A.O. Smith Corp. v. United States, 774 F.3d 359, 365 (6th Cir. 2014).
The crucial first step in the discretionary function analysis is to determine precisely what
conduct is at issue. Rosebush, 119 F.3d at 441.
In determining whether the NPS’s failure to warn of the fire danger falls within the
discretionary function exception, the critical first step is to determine precisely the conduct
at issue. Plaintiffs define the conduct at issue as the NPS “neglecting to provide timely and
accurate notice and warning to Park neighbors, local government officials, local fire
departments, local residents, and visitors about the status of and imminent danger presented
by the Chimney Tops 2 Fire[.]” [Doc. 1 at 139]. Defendant does not provide any alternate
8
definition of the conduct at issue. [See doc. 23-1]. Accordingly, for purposes of the
Gaubert analysis, the Court will accept Plaintiffs’ statement of the conduct at issue.
Under the first prong of the Gaubert test, the relevant inquiry is whether the
controlling statutes, regulations, and administrative policies mandate that the governmental
entity conduct a certain activity in a specific manner. Rosebush, 119 F.3d at 442. In such
an event, “the employee has no rightful option but to adhere to the directive.” Bultema v.
United States, 359 F.3d 379, 384 (6th Cir. 2004) (quoting Berkovitz, 486 U.S. at 536). If
the regulation does not mandate the specific manner that the governmental entity must
conduct certain activity, then a decision as to the precise manner in which to conduct the
activity falls within the discretionary function exception. Rosebush, 119 F.3d at 442.
However, the Sixth Circuit has held that, while regulations may fail to specify how and
when they are to be implemented, they may nonetheless be non-discretionary as to whether
they are to be implemented. A.O. Smith, 774 F.3d at 361, 367. The Sixth Circuit has also
held that decisions about warning of potential dangers do not categorically satisfy the
discretionary function exception, and instead, Courts must look at the specific facts in each
case and apply the Gaubert test to determine whether a decision to warn falls within the
exception. Id. at 369.
In their complaint, Plaintiffs cite several sections of the Fire Management Plan
(“FMP”) and Director’s Order #18 (“DO 18”), which they argue constitute mandatory
directives regarding their failure to warn claim. [Doc. 1 at 138-39]. Specifically, Plaintiffs
cite Section 3.3.2 of the FMP, which states that:
9
Park neighbors, Park visitors and local residents will be notified of all
planned and unplanned fire management activities that have the potential to
impact them.
[Doc. 1 at 138; FMP § 3.3.2 at p. 28]. Plaintiffs also cite to Section 4.4.2 of the FMP,
which requires the Park Service to “protect values at risk and to ensure the safety of park
staff and visitors as well as the neighboring public.” [Doc. 1 at 138; FMP § 4.4.2 at p. 54].
That same section of the FMP continues on to list actions that the Park Service should take
with regard to “Park neighbors,” including:
• Post current fire information on websites as available
• Inform park neighbors of wildland fires, and
• Suppress those fires or parts there of [sic] that threaten to burn off of park
property or that adversely impact public health and safety.
[Doc. 1 at 138-39; FMP § 4.4.2 at p. 55].
Plaintiffs also cite to a section in both the FMP and DO 18, which states
“[f]irefighter and public safety is the first priority in all fire management activities.” [Doc.
1 at 139; FMP § 3.3.2 at p. 28; DO 18 ¶ 6.1]. Plaintiff’s further cite to paragraph 5.1 of
DO 18, which states that “[f]irefighter and public safety is the first priority. All Fire
Management Plans and activities must reflect this commitment.” [Doc. 1 at 139; DO 18
¶ 5.1]. Finally, Plaintiffs cite to more language from DO 18, paragraph 5.1, which states:
the protection of human life is the single, overriding suppression priority.
Setting priorities to protect human communities and community
infrastructure, other property and improvements, and natural and cultural
resources will be done based on human health and safety, the values to be
protected, and the costs of protection.
[Doc. 1 at 139; DO 18 ¶ 5.1].
10
In their motion, as to the first prong of Gaubert, Defendant argues that neither the
FMP nor DO 18 are mandatory, and, even if they were mandatory, the cited provisions are
not specific enough to defeat the discretionary function exception. [Doc. 23-1 at 22-23,
40-41]. First, Defendant contends that DO 18 is not mandatory because the introduction
states: “This Director’s Order states the basic principles and strategic guidelines governing
the management of wildland fire by the National Park Service.” [Id. at 22 (citing Doc. 2-1
at 1]. Defendant asserts that principles and guidelines are not mandatory directives. [Id.].
Further, Defendant notes that DO 18 states that it
is intended to improve the internal management of the NPS and is not
intended to, and does not create any right or benefit, substantive or
procedural, enforceable by law, or equity, by a party against the United
States, its departments, agencies, instrumentalities or entities, its officers or
employees, or any other person.
[Id. at 23 (citing Doc. 2-1 at 3)]. As to the FMP, Defendant contends that the introduction
to this document makes plain that it is intended to express goals and provide guidance. [Id.
at 24]. Defendant points to Section 4 of the FMP, which is labeled “Wildland Fire
Operational Guidance,” and states:
Beginning with the initial action to any wildfire, decisions will reflect the
goal of using available firefighting resources to manage the fire in the safest,
most effective, and most efficient means available while meeting identified
fire management unit goals and objectives.
[Id. at 24-25]. Defendant thus contends that neither of these sources supplies mandatory
directives, and thus, fail to remove Plaintiffs’ claims from the scope of the discretionary
function exception. [Id. at 26].
11
Defendant then argues that, even if the FMP is mandatory and binding on the NPS,
§ 3.3.2 affords discretion to Park officials to determine whether and when fire management
activities have the potential to affect the listed parties. [Id. at 40]. Thus, Defendant
contends that this section is not sufficiently specific to defeat the discretionary function
exception. [Id. at 40-41]. Defendant also states that § 4.4 of the FMP, containing the
section on mitigation, refers to the Park’s fire prevention program “objectives,” and thus is
not a mandatory directive, but is also insufficiently specific since it does not prescribe when
or how the NPS must notify. [Id. at 41].
Plaintiffs respond that the policies they cited restrict discretion and mandate certain
conduct. [Doc. 29 at 27]. Plaintiffs contend that the government bears the burden of
proving that a statement is a guideline, rather than a mandate, and the government has not
met that burden here. [Id. at 28]. Plaintiffs further note that the NPS’s own experts relied
on these documents as the source of wildland fire policy. [Id.]. Plaintiffs further contend
that the policy provisions are sufficiently specific, noting that, FMP § 3.3.2, for example,
specifically requires fire managers to inform Park neighbors of all planned and unplanned
fire management activities. [Id. at 28, 34-35].
Defendant replies that, because both DO 18 and the FMP state that they provide
guidance, the management of a given wildfire is left to the discretion of Park Service
professionals. [Doc. 34 at 3]. Defendant contends that Plaintiffs have not rebutted its
showing that the FMP cannot be a source of any mandatory directive, because it was
intended to express goals and provide guidance, rather than prescribe mandatory directives.
[Id. at 13]. Defendant further argues that Plaintiffs have not disputed that FMP § 3.3.2
12
affords discretion to determine whether and when fire management activities have the
potential to affect Park neighbors or when or how Park officials must alert them. [Id.].
The Court agrees with Defendant that DO 18 does not contain any mandatory
directives regarding Plaintiffs’ failure to warn claim. DO 18 states that it sets forth “the
basic principles and strategic guidelines governing the management of wildland fire by the
[NPS].” [Doc. 2-1 at 1]. DO 18 further states that its purpose is to, inter alia, “[e]stablish
a framework by which the NPS will institutionalize and implement principle, policies,
organizational and operational relationships, and changes in law and reporting
requirements.”
[Id. § 1.2(B), p. 2].
Although DO 18 repeatedly emphasizes that
“[f]irefighter and public safety is the first priority in all fire management activities[,]” [see
id. at § 5.1(A), p. 4; § 6.1(A), p. 7], DO 18 also indicates that “[t]he circumstances under
which a fire occurs, and the likely consequences on firefighter and public safety and
welfare, natural and cultural resources, and values to be protected, dictate the appropriate
response to the fire.” [Id. at § 5.1(C), p. 5].
It is clear to the Court that, in the full context, the language cited by Plaintiffs from
DO 18 does not contain any mandatory directive. The language of DO 18 clearly indicates
that various factors are to be considered in determining the appropriate response to wildfire
danger. This requirement, that the NPS consider multiple factors in deciding how to
proceed, is precisely the type of discretionary decision that the discretionary function
exception was designed to protect. While DO 18 repeatedly emphasizes that the protection
of human life is the overriding concern in any firefighting activity, this alone is insufficient
to show any mandatory directive with regard to the NPS’s decision to warn of the imminent
13
danger of the Chimney Tops 2 fire. The Court agrees with many of the Circuit courts
around the country that have held that “guidelines” generally cannot be mandatory
directives. See Riley v. United States, 486 F.3d 1030, 1033 (8th Cir. 2007) (provisions of
publication were “guidelines and not mandatory” because the publication stated that it was
intended as “guidance” and a “reference manual”); K.W. Thompson Tool Co. v. United
States, 836 F.2d 721, 729 (1st Cir. 1988) (agency manual was “intended to act as general
guidelines, not specific, inflexible and mandatory rules”). By its definition, a guideline is
“an indication or outline of future policy or conduct[.]” Merriam-Webster Unabridged
Dictionary, “Guideline,” http://unabridged.merriam-webster.com (November 20, 2019).
Thus, by its very definition, a guideline cannot be a mandatory directive specifying exactly
how a government agency should proceed.
Accordingly, if the Plaintiffs claim of
jurisdiction rested solely on DO 18, the Court would conclude that the discretionary
function exception applied.
However, the Court is not convinced that the FMP, on which Plaintiffs also rely,
merely contains guidelines for the NPS, at least as it relates to the failure to warn claim. In
its introduction, the FMP states that it “provides long-term direction for achieving park
goals related to human safety and ecosystem management.”
[Doc. 1-7 at 5].
The
introduction further states that the FMP “outlines those actions that will be taken by Great
Smoky Mountains National Park in meeting the fire management goals for the park
including [requirements contained in DO 18].” [Id. (emphasis added)]. The FMP sets forth
several goals, including to “[p]rotect human life,” and states that the “goals described above
will be achieved through” the programs discussed in later chapters of the FMP. [Id. at 6].
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The Court finds that this language is insufficient to label the entirety of the FMP as mere
“guidelines,” that cannot provide any mandatory directives. The Court has carefully
reviewed the entirety of both DO 18 and the FMP, and, although the Court concludes that
DO 18 merely contains guidelines for the NPS, the Court concludes that the FMP appears
to set forth more specific requirements, to implement the goals and guidelines set forth in
DO 18. Accordingly, the Court cannot conclude, based on the language in the introduction
to the FMP, that everything contained therein is merely a guideline.
Section 3.3.2(C) of the FMP states that “[f]irefighter and public safety is the first
priority in all fire management activities[,]” and specifies that “Park neighbors, Park
visitors and local residents will be notified of all planned and unplanned fire management
activities that have the potential to impact them.”
[Id. at 28 (emphasis added)].
Additionally, Section 4.4.2 of the FMP addresses the issue of public safety, and subsection
(F) “outline[s] mitigation actions required to protect values at risk and to ensure the safety
of park staff and visitors as well as the neighboring public.” [Id. at 54-55 (emphasis
added)]. Table 13, titled “Mitigations for Public Safety Issues,” then addresses various
actions to be taken to protect various groups and resources. [Id. at 55]. Specifically, Table
13 sets forth as follows:
Table 13. Mitigations for Public Safety Issues
Public Safety Issues
Transportation Corridors
Mitigation
•
•
•
•
•
Smoke Screening Tools
Post Warning Signs/Notify visitors at park entrances
Implement appropriate level of traffic control or request
assistance
Monitor smoke dispersal
Mop-up smoldering fuels
15
Urban Interface and Park
Infrastructure
•
•
•
•
•
•
•
Visitor Use
•
•
•
•
•
Park Operations
•
•
•
•
•
•
Park Neighbors
•
•
•
•
•
•
Prescribed burns to reduce hazard fuel accumulation
Notify and update residents and employees of proposed
and/or ongoing operations
Relocate at-risk residents or park staff
Respond to fires in the Mutual Response Zone
Pre-attack plans
Monitor urban expansion to identify new communities at
risk
Suppress those fires or portions there of [sic] that
threaten infrastructure
Post current fire information on websites as available
Time prescribed burns to minimize impacts to visitors
Provide and post fire information at backcountry permit
stations, at visitor access points, and visitor centers
Close areas to the public during fire operations
Contact backcountry permit stations and ascertain if
permits are issued for a fire area
Visually survey fires to ensure that no visitors are present
Suppress fires that threaten visitor use areas
Post current fire information on websites as available
Send email notifications to park staff regarding current fire
information
Close areas to administrative use during fire operations
and/or limit access
Time prescribed burns to minimize impacts to park
operations
Temporarily relocate at-risk park staff
Use Smoke Screening Tools
Post current fire information on websites as available
Inform park neighbors of wildland fires
Use information officer and/or park public affairs to
disseminate information
Suppress those fires or parts there of that threaten to burn
off of park property or that adversely impact public health
and safety
[Id. (emphasis added)].
The Court acknowledges that language requiring an agency to “protect” or
“safekeep” is too general to constitute a mandatory directive for purposes of the
discretionary function exception. A.O. Smith, 774 F.3d at 365 (citing Montez ex rel. Estate
of Hearlson v. United States, 359 F.3d 392 (6th Cir. 2004)). Accordingly, any statements
in the FMP indicating that the protection of life and public safety must be the primary goals
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in any fire management activity are insufficiently specific to constitute mandatory
directives for purpose of the discretionary function exception.
Nonetheless, the Court still must determine whether the following sections of the
FMP constitute mandatory directives:
(1) Section 3.3.2’s statement that “Park neighbors, Park visitors and local residents will
be notified of all planned and unplanned fire management activities that have the
potential to impact them[,]” and
(2) Table 13’s statements regarding mitigating efforts for protecting Park neighbors.
The Court concludes that each of these portions of the FMP constitute mandatory directives
for purposes of the discretionary function exception.
In so concluding, the Court finds it appropriate to compare the language in the FMP
to language that the Sixth Circuit has concluded does not constitute a mandatory directive,
particularly in the failure to warn context. In Myers, the regulation at issue stated, inter
alia, “if, during mandatory quarterly inspections, a safety violation is discovered, then
inspectors must issue a citation and, if the violation poses an ‘imminent danger,’ a
withdrawal order[.]” Myers, 17 F.3d at 895. The Court concluded that the “if/then” logical
structure of the duties contained in the regulation presents the official with a choice as to
whether the condition precedent exists, which was sufficient to satisfy the first prong of
Gaubert. Id. at 895-96. However, unlike the language in Myers, neither the language in
§ 3.3.2 nor Table 13 contains the “if/then” language. Section 3.3.2 specifically states that
Park neighbors will be notified of all planned and unplanned fire management activities
that have the potential to impact them. This section specifies who is to be notified (Park
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neighbors), and what activities they are to be notified of (planned and unplanned fire
management activities that may affect them). Moreover, none of the activities listed in
Table 13 relating to warning park neighbors (i.e., posting current fire information on
websites, informing Park neighbors of wildland fires, and using information officers and/or
park public affairs to disseminate information) are phrased in an “if/then” manner. Rather,
the FMP states that these activities are required. Further, the actions listed in Table 13 are
specific as to when and how warnings should occur, namely, Park neighbors should be
informed in the event of a wildland fire, using various means, including the internet and
information officers.
In A.O. Smith, in addressing whether a mandatory directive required the Army Corps
of Engineers to warn of potential flood danger, based on its management of a dam and
reservoir,
Plaintiffs relied
on
regulations
that
“recommend[ed]”
a
“detailed
communications plan” and “recommend[ed]” procedures related to the “[d]issemination of
warnings by the Corps directly to the general public in the immediate vicinity of the dam
and reservoir.” A.O. Smith, 774 F.3d at 370. Regulations also stated that “release to
interested parties of factual information . . . is permissible[,]” and “District offices are
encouraged to provide assistance to communities and individuals regarding the impact of
forecasted floods.” Id. (emphasis added). The Sixth Circuit held that, with the language
regarding releases of information being “permissible” and disclosures being “encouraged,”
even if the regulation contained information on how to promulgate warnings, the regulation
only encouraged or recommended their promulgation, and thus, the first prong of Gaubert
was satisfied. Id. Here, none of the directives at issue contain any language about
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recommended, encouraged, or permissible action. To the contrary, the relevant portions of
§ 3.3.2 and Table 13 are all phrased as requirements to act and notify Park neighbors of
wildfire dangers.
In Rosebush, Plaintiffs sued the United States Forest Service for failure to warn of
the dangers of a fire pit, after their child was severely burned. Rosebush, 119 F.3d at 440.
Plaintiffs relied on, inter alia, language from the United States Forest Service Manual
regarding public safety, which stated:
To the extent practicable, eliminate safety hazards from recreation sites. To
accomplish this, inspect each public recreation site annually before the
beginning of the managed-use season. Maintain a record of the inspections
and corrective actions taken with a copy of the operation and maintenance
plan.
Immediately correct high-priority hazards that develop or are identified
during the season or close the site.
Id. at 441 (emphasis added). The Sixth Circuit concluded that the determination of what
is “practicable” requires the exercise of discretion, and thus, the first prong of Gaubert was
satisfied. Id. at 442. In comparison, here, there is a specific regulation about the duty to
notify, unlike the language discussed in Rosebush. Moreover, the language in the FMP
does not reference what is “practicable.” Rather, as discussed above, the directives in
§ 3.3.2 and Table 13 are phrased as requirements to notify.
After thorough examination, the Court concludes that, because § 3.3.2 and Table 13
of the FMP require the NPS to take specific actions, these sections contain mandatory
directives relating to Plaintiffs’ failure to warn claim, and the first prong of the Gaubert
test has not been satisfied. Because the Court concludes that the first prong of Gaubert has
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not been established, the Court need not address the second prong. Accordingly, because
Plaintiffs have cited mandatory directives to support jurisdiction over their claims based
on the failure to warn about the Chimney Tops 2 fire, the Court finds that it has jurisdiction
over this matter, and Defendant’s motion to dismiss for lack of jurisdiction [Reed case,
doc. 23; Anculle case, doc. 19; Adkins case, doc. 19] will be denied.
IV.
CONCLUSION
Accordingly, for the reasons stated herein, Defendant’s motion to dismiss for lack
of jurisdiction [Reed case, doc. 23; Anculle case, doc. 19; Adkins case, doc. 19] will be
denied. An order consistent with this opinion will be entered.
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE
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