Johnson et al v. United States of America

Filing 37

MEMORANDUM DECISION AND ORDER granting 22 Motion for Summary Judgment. Plaintiffs' claims are DISMISSED with prejudice. Signed by Magistrate Judge Cecilia M. Romero on 9/25/2024. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MICHAEL and SARAH JOHNSON,
v.

Plaintiffs,

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM DECISION & ORDER
GRANTING DEFENDANT’S [22]
MOTION FOR SUMMARY JUDGMENT
Case No. 2:22-cv-00523-CMR
Magistrate Judge Cecilia M. Romero

All parties in this case have consented to the undersigned conducting all proceedings,
including entry of final judgment (ECF 10). 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Before the
court is Defendant United States of America’s (Defendant or United States) Motion for Summary
Judgment (Motion (Def. Mot.), ECF 22). The court heard oral argument on the Motion at a hearing
on July 11, 2024 (ECF 33). Having carefully considered the relevant filings, case law, and oral
argument, the court GRANTS Defendant’s Motion.
I.

PROCEDURAL BACKGROUND

On August 18, 2022, Plaintiffs Michael Johnson (Mr. Johnson) and Sarah Johnson (Ms.
Johnson) (collectively, Plaintiffs) initiated this action against the United States under the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 2671–2680 (Complaint (Compl.), ECF 2). Plaintiffs’
claims arise from the destruction of their real and personal property in June 2018 during a
controlled burn by the United States Forest Service (Forest Service) in the Manti-La Sal National
Forest that escaped containment (the Trail Mountain Fire) (Compl. ¶¶ 11, 15, 19). Plaintiffs assert
the following three claims: (1) Negligence based on the Forest Service’s failure to notify Plaintiffs
of the controlled burn (id. ¶ 27); (2) Negligence per se based on the failure to notify (id. ¶ 32); and
(3) Trespass based on the spread of the Trail Mountain Fire to Plaintiffs’ property (id. ¶ 37).

On February 16, 2024, the United States filed the instant Motion seeking summary
judgment on all of Plaintiffs’ claims, arguing that the discretionary-function exception to the
FTCA bars jurisdiction (Def. Mot. at 2). Plaintiffs filed a Response arguing the discretionaryfunction exception is inapplicable to their negligence claims based on the failure to notify
(Response (Pl. Resp.), ECF 25 at 13–16). Plaintiffs did not address the trespass claim in their
Response. The United States later filed a Reply (Reply (Def. Rep.), ECF 30) and a Notice of
Supplemental Authority (ECF 34), citing to Strawberry Water Users Association v. United States,
109 F.4th 1287 (10th Cir. 2024), in further support of its Motion.
II.
A.

FACTUAL BACKGROUND 1

Regulatory Background

The National Forest Management Act, 16 U.S.C. §§ 1600–1604, requires the Forest
Service to develop, maintain, and amend land and resource management plans referred to as forest
plans. The 1986 Land and Resource Management Plan (1986 Forest Plan) was the forest plan in
effect for the Manti-La Sal National Forest at the time of the Trail Mountain Fire. The 1986 Forest
Plan authorizes prescribed burns forest-wide for fuels treatment and resource improvement. See
1986 Forest Plan at III-13, III-43.
The U.S. Secretary of Agriculture has delegated authority for administering and protecting
National Forest System lands to the Forest Service. 36 C.F.R. § 200.3. Pursuant to this authority,
the Forest Service has promulgated policies and directives, including the Forest Service Manual
(FSM). See id.§ 200.4. FSM Chapter 5140, entitled Hazardous Fuels Management and Prescribed

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The following facts are either undisputed or portrayed in the light most favorable to Plaintiffs. Unless otherwise
noted, the facts are drawn from the Motion (ECF 22) and the Response (ECF 25).

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Fire, provides policy guidance specific to using prescribed fire to achieve desired conditions and
attain management objectives. FSM 5140.2, 5140.3.
The Forest Service uses the Interagency Prescribed Fire Planning and Implementation
Procedures Reference Guide (PMS 484 Guide) to create a prescribed fire program and prepare a
prescribed fire plan. FSM 5142.3, 5142.6. The PMS 484 Guide provides the agency administrator
the information needed to evaluate the prescribed fire plan and provides the burn boss the
information needed to implement the plan. Element 9 of the PMS 484 Guide provides the standards
for how pre-burn notifications are to be handled in a fire plan:
Include a list of organizations (including news media) and individuals who are to be
notified prior to ignition, with information necessary to make the contacts. Reasonable
efforts will be made to notify adjacent landowners (or their agents) and other potentially
impacted publics. Attempts or actual notifications (or both) will be documented with date
and method and placed in the project file.
The PMS 484 Guide does not define or give guidance as to what “adjacent landowners” means.
B.

The Trail Mountain Fire Plan

The Forest Service manages the Manti-La Sal National Forest, a 1,413,111-acre forest that
extends from central Utah to southeastern Utah and into Colorado. In 2011, Plaintiffs acquired 457
acres of private land within the Manti-La Sal National Forest in Emory County, Utah (the
Property). The Property housed a custom-built cabin, outbuildings, and fencing.
In 2015, the Forest Service proposed the Trail Mountain Project to help reduce hazardous
fuels, restore wildlife habitat, and reduce the risk to life (firefighters, recreationalists, and
permittees) and property. The Trail Mountain Project area boundary was decided by a Forest
Service interdisciplinary team comprised of the District Ranger, his staff, and multiple specialists
(e.g. hydrologist, wildlife biologist, and silviculturist). The Trail Mountain Project proposed a
prescribed burn of approximately 4,345 acres within the 17,115 acres of the Trail Mountain Project

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area. In April 2018, the District Ranger signed the Decision Memo. The Trail Mountain Fire Plan
was developed by a qualified preparer, underwent a technical review, and was then signed by an
agency administrator. On May 1, 2018, the Trail Mountain Fire Plan was approved.
A press release was issued by the Forest Service prior to ignition of the Trail Mountain
Fire. Prior to ignition, flyers with information about the prescribed fire went out across the entire
community and were posted on an information board near the prescribed fire area. ETV News
published articles about the Trail Mountain Fire prior to ignition. Plaintiffs were at the Property in
the weeks before the ignition.
The notification plan of the Trail Mountain Fire Plan listed contact information for those
who were to be contacted prior to ignition. Plaintiffs were not listed on the notification plan of the
Trail Mountain Fire Plan. The Property is approximately two miles to the east of the Trail
Mountain Fire Plan perimeter. Moab Interagency Fire Center made notifications pursuant to the
Trail Mountain Fire Plan on May 11 and June 4–6, 2018. Prior to ignition of the Trail Mountain
Fire, notifications were made pursuant to the Trail Mountain Fire Plan.
C.

The Trail Mountain Fire

On June 4, 2018, the Trail Mountain Fire was ignited by the Forest Service. On June 6,
2018, the Trail Mountain Fire escaped containment and was declared a wildfire. The Forest Service
posted about the Trail Mountain Fire on Facebook on June 4, and 6–7, 2018, both before and after
it escaped containment. Information about the Trail Mountain Fire was posted on utahfireinfo.gov
on June 5, 7, and 8, 2018. Information was also posted on InciWeb, an interagency information
management system available to the public, and InciWeb also posted on Twitter on June 8 and 10,
2018. After the fire escaped, a Wildland Fire Decision Support System (WFDSS) Incident
Decision was published on June 9, 2018.

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Plaintiffs did not learn of the Trail Mountain Fire until June 10, 2018, after it had escaped
containment. On June 10, 2018, the Emery County sheriff called Mr. Johnson’s work cell phone
to let him know that there was a fire near his property. On the morning of June 11, 2018, Mr.
Johnson attended a Forest Service wildfire briefing. After this briefing, Mr. Johnson drove to the
Property and saw that the fire was actively burning on the Property. Plaintiffs’ family cabin,
heirlooms, belongings, and many acres of the Property and fencing were destroyed in the fire. The
Trail Mountain Fire grew to 18,080 acres, was declared contained on June 27, 2018, and was
declared out on July 28, 2018.
III.
A.

LEGAL STANDARDS

Summary Judgment Standard

A “court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In making this determination, courts “examine the record and all reasonable
inferences that might be drawn from it in the light most favorable to the non-moving party.”
Barber ex rel. Barber v. Colorado Dept. of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (quoting
T-Mobile Cent., LLC v. Unified Gov’t of Wyandotte Cnty., 546 F.3d 1299, 1306 (10th Cir. 2008)).
“For there to be a ‘genuine’ dispute of fact, there must be more than a mere scintilla of evidence;
to avoid summary judgment, the evidence must be such that a reasonable jury could return a verdict
for the nonmoving party.” Aubrey v. Koppes, 975 F.3d 995, 1004 (10th Cir. 2020) (quoting Rocky
Mountain Prestress, LLC v. Liberty Mut. Fire Ins. Co., 960 F.3d 1255, 1259 (10th Cir. 2020)).
Thus, “mere conclusory allegations are insufficient to establish an issue of fact under Fed. R. Civ.
P. 56.” Barber, 562 F.3d at 1228 (quoting Bruner v. Baker, 506 F.3d 1021, 1025 (10th Cir. 2007)).

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B.

Discretionary-Function Exception

As a sovereign, “[t]he United States and its officers enjoy immunity from suit except in
instances where the United States has expressly waived that protection.” Flute v. United States,
808 F.3d 1234, 1239 (10th Cir. 2015). “Unless the United States waives its sovereign immunity,
thereby consenting to be sued, the federal courts lack jurisdiction to hear claims against it.” San
Juan Cnty. v. United States, 754 F.3d 787, 792 (10th Cir. 2014). Sovereign immunity is waived
“only when Congress ‘unequivocally expresse[s]’ its intention to waive the government’s
sovereign immunity in the statutory text.” United States v. Murdock Mach. & Eng’g Co. of Utah,
81 F.3d 922, 930 (10th Cir. 1996) (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 37
(1992)).
The FTCA waives sovereign immunity for “claims against the United States, for money
damages . . . for injury . . . 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[.]” 28 U.S.C. §
1346(b)(1). This waiver is limited by a number of statutory exceptions, including the discretionaryfunction exception at issue here. See id. § 2680(a). “When an exception applies, sovereign
immunity remains, and federal courts lack jurisdiction.” Garling v. EPA, 849 F.3d 1289, 1294
(10th Cir. 2017). “Because the discretionary function exception is jurisdictional, the burden is on
[the plaintiff] to prove that it does not apply.” Hardscrabble Ranch, LLC v. United States, 840
F.3d 1216, 1220 (10th Cir. 2016). If the plaintiff fails to meet his burden, “[t]he [discretionary
function] exception applies even if the governmental employees were negligent.” Aragon v. United
States, 146 F.3d 819, 822 (10th Cir. 1998).
The discretionary-function exception provides that the United States may not be held liable
for claims “based upon the exercise or performance or the failure to exercise or perform a

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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 applicability of this
exception “depends on the nature of the agency’s conduct” as evaluated under a two-part test
referred to as the Berkowitz test. Garling, 849 F.3d at 1295 (citing Berkovitz v. United States, 486
U.S. 531, 536 (1988)). When both parts of the test are met, “the governmental conduct is protected
as a discretionary function, and sovereign immunity bars a claim that involves such conduct.” Id.
First, the court determines whether the conduct at issue “was ‘discretionary’, meaning
whether it was ‘a matter of judgment or choice for the acting employee.’” Garcia v. U.S. Air Force,
533 F.3d 1170, 1176 (10th Cir. 2008) (quoting Berkovitz, 486 U.S. at 536). The discretionaryfunction exception will bar claims unless the plaintiff can identify a “federal statute, regulation, or
policy [that] specifically prescribe[d] a course of action for [the agency] to follow,” such that “the
[agency] ha[d] no rightful option but to adhere to the directive.” See United States v. Gaubert, 499
U.S. 315, 322 (1991) (quoting Berkovitz, 486 U.S. at 536). Second, the court determines whether
the challenged conduct “required the ‘exercise of judgment based on considerations of public
policy.’” Garling, 849 F.3d at 1295 (quoting Garcia, 533 F.3d at 1176); Berkovitz, 486 U.S. at
536–37. In making this determination, the court considers “whether the plaintiffs challenge
‘legislative and administrative decisions grounded in social, economic, and political policy.’”
Knezovich v. United States, 82 F.4th 931, 937 (10th Cir. 2023) (quoting Kiehn v. United States,
984 F.2d 1100, 1103 (10th Cir. 1993)). The court will address the parties’ arguments regarding the
applicability of the discretionary-function exception in turn.

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IV.
A.

DISCUSSION

Negligence Claims

Plaintiffs’ negligence claims are based on the Forest Service’s failure to notify Plaintiffs
of the plan to conduct a controlled burn (Compl. ¶¶ 27, 32). Defendant seeks summary judgment
on Plaintiffs’ negligence claims based on the discretionary-function exception (Def. Mot. at 12).
Defendants argue Plaintiffs have failed to meet their burden under both prongs of the Berkovitz
test because Plaintiffs fail to identify a specific policy the Forest Service failed to follow in
notifying landowners, and the Forest Service’s decision about who to notify was connected to
policy considerations (id. at 12–14). Plaintiffs respond that the discretionary-function exception is
inapplicable because the Forest Service’s decision of whether to notify Plaintiffs of the prescribed
burn was not a matter of discretion, and notification procedures prior to ignition of a prescribed
burn do not implicate policy considerations (Pl. Resp. at 14–16). In the Reply, Defendant argues
that Plaintiffs’ arguments are unsupported by the PMS 484 Guide and controlling law from the
Tenth Circuit (Def. Rep. at 2, 5).
As to the first prong, Plaintiffs argue the PMS Guide 484 mandates the prescribed fire burn
boss to “[c]oordinate with adjacent landowners, cooperators, and permit holders as designated in
the prescribed fire plan, “[e]nsure adjacent landowners and other notifications are made and are
documented, prior to ignition as designated in the prescribed fire plan,” and that “[r]easonable
efforts will be made to notify adjacent landowners (or their agents) and other potentially impacted
publics” prior to the burn (Pl. Resp. at 14 (quoting PMS 484 Guide, Element 9)). It is undisputed
that the PMS 484 Guide does not define or give guidance on the meaning of the term “adjacent
landowners.” Defendant points to deposition testimony indicating the Forest Service interpreted
“adjacent landowner” as a property owner whose land shared a common boundary with the project

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area (Def. Ex. F, ECF 22-7 at 57:19–22, 93:6–10). Plaintiff disputes this by pointing to the Forest
Service’s Values at Risk (VAR) map showing that property owners who did not share a common
boundary with the Trail Mountain project area were nonetheless included in the notification list
(Pl. Ex. A, ECF 25-2 at 175). Plaintiff notes this is consistent with the dictionary definition of
“adjacent” as “not distant” or “nearby,” which is broader than sharing a property boundary (Pl.
Resp. at 14–15). Defendant responds that this evidence is irrelevant to the discretionary-function
analysis because even if the Forest Service negligently decided whose property was “adjacent” to
the burn area, this decision remains discretionary (Def. Rep. at 3).
The court agrees with Defendant that Plaintiffs have failed to meet their burden to identify
a federal statute, regulation, or policy prescribing a specific course of action for the Forest Service
to follow in deciding who to notify of the burn. As conceded by Plaintiffs, the term “adjacent
landowners” is not defined by the PMS 484 Guide. Although notification is mandatory, the
decision of which landowners are adjacent is thus discretionary. Even if the Forest Service was
negligent in deciding which landowners to notify of the prescribed burn, the discretionary-function
exception nonetheless protects this discretionary conduct. See Elder v. United States, 312 F.3d
1172, 1176 (10th Cir. 2002) (“Because the exception applies ‘whether or not the discretion
involved [was] abused,’ 28 U.S.C. § 2680(a), it is irrelevant whether the government employees
were negligent.” (quoting Aragon, 146 F.3d at 822)). Evidence that Plaintiffs were not notified of
the prescribed burn or that landowners who did not share a boundary with the burn area were
notified is not material and insufficient to create a dispute of fact. The first prong of the Berkovitz
test for the discretionary-function exception is met as a matter of law. See Berkovitz, 486 U.S. at
536.

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Turning to the second prong, Plaintiffs rely on a case that is not controlling in this circuit,
Green v. United States, 630 F.3d 1245 (9th Cir. 2011), to support their argument that the Forest
Service’s decisions relating to the notification of landowners prior to ignition of the burn do not
implicate policy considerations (Pl. Resp. at 15–16). In Green, the Ninth Circuit held that while
the Forest Service’s decision to light a “backfire” in response to a naturally caused wildfire was
discretionary, the failure to notify neighboring landowners of the backfire was not a policy-based
choice because there was no evidence to suggest that the failure to warn resulted from any
resource-allocation consideration. 630 F.3d at 1251–53. Defendant responds that the holding in
Green is inconsistent both with Supreme Court and Tenth Circuit precedent (Def. Rep. at 4–5).
The court agrees that Plaintiffs have failed to meet their burden to show that the Forest
Service’s decision of who to notify of the burn is not subject to policy considerations. Both the
Supreme Court and the Tenth Circuit have consistently held that there is a presumption that agency
conduct is subject to policy considerations where there is no required course of conduct. See, e.g.,
Gaubert, 499 U.S. at 324–25 (explaining that when applicable statutes, regulations, or agency
guidance allow an agency employee to exercise discretion, “it must be presumed that the agent’s
acts are grounded in policy when exercising that discretion”); Knezovich, 82 F.4th at 942 (“We
presume that a government agency’s acts are grounded in policy [where] . . . no statute, regulation,
or policy sets forth a required course of conduct.” (quoting Ball v. United States, 967 F.3d 1072,
1079 (10th Cir. 2020))). In 4Sees v. United States, 2:16-cv-00695-JNP-CMR, 2020 WL 5495183
(D. Utah Sept. 9, 2020), this court rejected the plaintiffs’ argument that firefighters’ failure to warn
them prior to conducting burnouts near their property was not policy based, holding that
“communication with private property owners in the course of fighting a wildfire implicates the
same policy considerations relevant to other wildfire management decisions.” Id. at *9. These

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holdings make clear that the Forest Service’s notification of adjacent landowners of the prescribed
burn in this case was subject to policy considerations, and the second prong of the discretionaryfunction exception is therefore met. See Berkovitz, 486 U.S. at 536–37. Based on the foregoing,
the court concludes that the discretionary-function exception is applicable to Plaintiffs’ negligence
claims, and Defendant is entitled to judgment as a matter of law on these claims.
B.

Trespass Claim

The court next addresses Plaintiffs’ claim for trespass against the United States based on
the Trail Mountain Fire spreading to the Property (Compl. ¶ 37). Defendant moves for summary
judgment on Plaintiffs’ trespass claim under the discretionary-function exception arguing that
Plaintiffs cannot meet their burden on either prong of the Berkovitz test (Def. Mot. at 16). As to
the first prong, Defendant argues that because there is no statute, regulation, or policy directive
prescribed a specific course of action that the Forest Service was required to follow in managing
the Trail Mountain Fire, Plaintiffs cannot show that the Forest Service’s decisions regarding how
to manage the fire were not discretionary (id. at 16–17). Defendant further agues Plaintiffs cannot
meet the second prong because the Forest Service’s actions are presumed to have been grounded
in considerations of public policy where agency policies and guidelines leave fire management
decisions to the discretion of the Forest Service (id. at 17). As noted above, although Plaintiffs
filed a timely Response to the Motion, Plaintiffs failed to respond to these arguments or otherwise
address or support their trespass claim in their Response. When a party fails to timely respond to
a summary judgment motion, “the court may grant the motion without further notice if the moving
party has established that it is entitled to judgment as a matter of law.” DUCivR 56-1(f). For the
reasons below, the court concludes that Defendant has established it is entitled to judgment as a
matter of law on Plaintiffs’ trespass claim.

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First, the court agrees that the Forest Service’s conduct in managing the Trail Mountain
Fire was discretionary. Courts have consistently held that the discretionary-function exception
applies to how the federal government manages and suppresses fires on federal land. 2 The recent
Tenth Circuit decision, Strawberry Water Users Ass’n v. United States, 109 F.4th 1287 (10th Cir.
2024), which Defendant provided as supplemental authority, is particularly instructive on this
point. See id. at 1297 (holding that the discretionary-function exception applies to claims alleging
the Forest Service failed to adequately suppress two wildfires). In Strawberry Water Users, the
court reasoned that where “[t]he relevant course of action . . . is fighting a fire” and the applicable
statute “does not require the Forest Service to ‘suppress the fire in a specific manner and within a
specific period of time,’” this conduct “cannot form the basis for concluding that the agency failed
to follow a mandatory course of action.” See id. at 1296–97 (quoting Hardscrabble Ranch, 840
F.3d at 1222). Here, Plaintiffs also failed to meet their burden to identify a federal statute,
regulation, or policy prescribing a specific course of action for the Forest Service to follow in
preventing the spread of the Trail Mountain Fire to the Property, which is the conduct that forms
the basis of Plaintiffs’ trespass claim. Like in Strawberry Water Users, the Forest Service’s
conduct in managing the Trail Mountain Fire was therefore discretionary, and the first prong of
the Berkovitz test for the discretionary-function exception is met. See Berkovitz, 486 U.S. at 536.
The court also agrees that the Forest Service’s management of the Trail Mountain Fire was
based on considerations of public policy. Fire management is inherently policy-based because “the
balancing of the needs to protect private property, ensure firefighter safety, reduce fuel levels, and

See, e.g., Hardscrabble Ranch, LLC v. United States, 840 F.3d 1216, 1222–23 (10th Cir. 2016) (holding that the
discretionary-function exception applies to claims alleging the Forest Service mismanaged a fire on its land);
Knezovich v. United States, 82 F.4th 931, 942 –943 (10th Cir. 2023) (applying the exception because the decision to
delay suppression efforts was discretionary and involved an exercise of policy judgment); 4Sees v. United States, 2:16cv-00695-JNP-CMR, 2020 WL 5495183, at *10 (D. Utah Sept. 9, 2020) (holding that the exception applies to claims
alleging the Bureau of Land Management mismanaged fires on its lands).
2

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encourage natural ecological development . . . are precisely the kind of social, economic, and
political concerns the discretionary function exception was designed to shield from ‘judicial
second guessing.’” Hardscrabble Ranch, 840 F.3d at 1222–23 (quoting Berkovitz, 486 U.S. at
536–37). The second prong of the Berkovitz test is therefore also met. See Berkovitz, 486 U.S. at
536–37. For these reasons, the court concludes that the discretionary-function exception bars
Plaintiffs’ trespass claim, and Defendant is entitled to summary judgment on this claim.
V.

ORDER

For the foregoing reasons, Defendant’s Motion for Summary Judgement (ECF 22) is
GRANTED, and Plaintiffs’ claims are DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this 25 September 2024.

Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah

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