SUSAN H. CHADD, as personal representative of the Estate of Robert M. Boardman, deceased, and for herself, Plaintiff-Appellant,
UNITED STATES OF AMERICA, NATIONAL PARK SERVICE, Defendant-Appellee
Argued and Submitted May 16, 2014, Seattle, Washington
Appeal from the United States District Court for the Western District of Washington. D.C. No. 3:11-cv-05894-RJB. Robert J. Bryan, Senior District Judge, Presiding.
Federal Tort Claims Act
The panel affirmed the district court's dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act action brought against the United States alleging claims arising from a fatal mountain goat attack on an Olympic National Park visitor.
The plaintiff, the wife of the deceased Park visitor, alleged that Park officials breached their duty of reasonable care by failing to destroy the goat in the years leading up to her husband's death.
The FTCA's discretionary function exception retains the United States' sovereign immunity for any claim based on " 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."
The panel held that the discretionary function exception applied. At step one of the discretionary function analysis, the panel held that there was no extant statute, regulation, or policy directive that required Park officials to destroy the goat prior to the Park visitor's death, and Park officials had discretion in deciding how to manage the problematic goat. At step two of the analysis, the panel held that the Park officials' decision to use non-lethal methods to manage the goat was susceptible to policy analysis, and the discretionary function exception applied.
Judge Berzon concurred with Judge O'Scannlain's opinion and its application of the discretionary function exception to the facts of the case, but she believes that Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998) (holding that the government decision at issue need not be actually grounded in policy considerations, but need only be susceptible to a policy analysis), should be reconsidered.
Judge Kleinfeld dissented because he would hold that the negligence in this case fell outside the discretionary function exception.
Shelby R. Frost Lemmel, Masters Law Group, PLLC, Bainbridge Island, WA, argued the cause and filed the briefs for the plaintiff-appellant. With her on the briefs was Kenneth W. Masters, Masters Law Group, PLLC, Bainbridge Island, WA.
Teal Luthy Miller, Assistant United States Attorney, Seattle, WA, argued the cause and filed the brief for the defendant-appellee. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, U.S. Department of Justice Civil Division, Washington, DC; Jenny A. Durkan, United States Attorney, Seattle, WA; and Mark B. Stern, Appellate Staff, U.S. Department of Justice Civil Division, Washington, DC.
Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges.
Diarmuid F. O'SCANNLAIN, Circuit Judge:
We must decide whether the United States may be sued under the Federal
Tort Claims Act for the actions of the National Park Service relating to a mountain goat that attacked and killed a Park visitor.
Established in 1938, Olympic National Park (" Olympic" or the " Park" ) spans 922,650 acres and hosts three million visitors each year. Among the many species of animal residing in Olympic is the mountain goat, which is not native to the area, having been introduced into the Park decades ago. Mountain goats possess dangerously sharp horns, and males typically weigh around 242 pounds. Prior to the incident in this case, there had been three reported, non-lethal attacks on people by mountain goats at other national parks, none of which were known to officials at Olympic.
Normally, mountain goats are reclusive animals, but the goats at Olympic frequently seek out areas visited by humans because of the salt humans leave behind. After repeated exposure to humans, goats can become habituated to their presence, which entails the loss of the mountain goat's fear response. Around 2004, when the goat population at Olympic was near 300, officials at the Park began receiving reports that some goats were becoming habituated; by 2006, goats began displaying aggressive behavior, such as standing their ground, following or chasing humans, pawing the ground, and rearing up.
Park officials decided to investigate the situation personally. They hiked the trails and observed the mountain goats demonstrating progressively habituated and sometimes aggressive behavior. Officials placed collars on the goats with Global Positioning System devices in order to track their movements and to collect further data.
Based on these observations, the Park began warning visitors about the goats' behavior. Visitors were given verbal warnings, and warning signs were posted on trails. Officials began employing aversive conditioning techniques, such as shooting the goats with paint balls and bean-bags, in order to change the goats' behavior. Officials focused their efforts on a few areas, including Klahhane Ridge.
Nonetheless, officials continued to receive reports in 2009 and 2010 about a large male goat chasing visitors and displaying other signs of aggression. Officials began discussing other management options for the problematic goat, but, as stated by Park Ranger Sanny Lustig, the solution " was not clear-cut." Sometime before July 30, 2010, Olympic Superintendent Karen Gustin, Wildlife Branch Chief Dr. Patti Happe, and Ranger Lustig met to discuss management options for the goat. They coordinated their reporting and hazing efforts and decided to intensify the aversive conditioning. Dr. Happe was to investigate the possibility of relocating the goat. On July 30, she emailed Washington State Department of Fish and Wildlife biologist Dr. Donny Martorello to ask whether they " had an option for translocation." She described the goat and stated that it was " not responding to [their] efforts to have him keep . . . a greater distance from people." Dr. Happe wrote that, because the goat had been " increasingly aggressive," Olympic wished to " explore other management options for [the goat], including relocation from the area."
Over the next two months, there were continued reports of goats pawing the ground, preventing hikers from passing, and acting aggressively. On October 16, 2010, Robert Boardman and his wife, Susan Chadd, were hiking on the Switchback trail to Klahhane Ridge with a friend, Pat
Willits, when a large male goat attacked Boardman, goring his leg with its horns and severing his femoral artery. Boardman died of his wound. Park officials found and destroyed a 370-pound male goat with blood on its horns within hours of the attack.
Chadd, on her own behalf and as representative of Boardman's estate, filed suit against the United States and the National Park Service (the " Service" ) under the Federal Tort Claims Act (FTCA), alleging that Park officials breached their duty of reasonable care by failing to destroy the goat in the years leading up to Boardman's death. The government moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, simultaneously filing declarations and other evidence in support of the motion. The parties proceeded with discovery.
On August 20, 2012, the district court granted the government's motion to dismiss. Chadd timely appealed.
As a sovereign, the United States is immune from suit unless it waives such immunity. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The United States has waived its sovereign immunity with regard to tort liability under the Federal Tort Claims Act " 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). " The Act did not waive the sovereign immunity of the United States in all respects, however; Congress was careful to except from the Act's broad waiver of immunity several important classes of tort claims." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Among these is the discretionary function exception contained in 28 U.S.C. § 2680(a). Id.
The discretionary function exception retains the United States's sovereign immunity for " [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). This exception " marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Varig, 467 U.S. at 808. It is designed to " prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 814. The government bears the burden of proving that the discretionary function exception applies. Bailey v. United States, 623 F.3d 855, 859 (9th Cir. 2010).
The Supreme Court has established a two-step process for evaluating
whether a claim falls within the discretionary function exception. First, a court examines whether the government's actions are " discretionary in nature, acts that involv[e] an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (internal quotation marks omitted). In making this examination, it is " the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Varig, 467 U.S. at 813. " If there is . . . a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee has no rightful option but to adhere to the directive." Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (internal quotation marks omitted).
Second, " even assuming the challenged conduct involves an element of judgment, it remains to be decided whether that judgment is of the kind that the discretionary function exception was designed to shield." Gaubert, 499 U.S. at 322-23 (internal quotation marks omitted). " The exception protects only government actions and decisions based on social, economic, and political policy." Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998) (internal quotation marks omitted). However, the exception " is not confined to the policy or planning level" and extends to " the actions of Government agents." Gaubert, 499 U.S. at 325, 323.
It is also important to bear in mind that the decision giving rise to tort liability " need not be actually grounded in policy considerations, but must be, by its nature, susceptible to a policy analysis." Miller, 163 F.3d at 593. Thus, " if a regulation allows the [governmental] employee discretion," there is " a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations." Gaubert, 499 U.S. at 324. In such cases, the plaintiff " must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Id. at 324-25. In any event, " [t]he focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325.
Chadd's tort suit alleges that the Service should have destroyed the goat before it killed Boardman, and that the Service's failure to do so constituted negligence. The first issue, then, is whether
" a statute or policy directing mandatory and specific action" required the Service to destroy the goat before it attacked Boardman. Terbush, 516 F.3d at 1129. If none did, then the Service's management of the goat necessarily " involv[ed] an element of judgment or choice," and the first prong of the discretionary function exception is satisfied. Gaubert, 499 U.S. at 322 (internal quotation marks omitted).
The Service's Management Policies manual (the " manual" ) is " the basic Service-wide policy document of the National Park Service" and is " mandatory unless specifically waived or modified by the Secretary, the Assistant Secretary, or the Director." The government does not dispute that this manual governed the Service's actions in the lead-up to Boardman's death. Section 188.8.131.52 of the Management Policies manual instructs, " The saving of human life will take precedence over all other management actions. . . ." However, the manual qualifies this obligation in the following manner: " The Service will do this within the constraints of the 1916 Organic Act. The primary--and very substantial--constraint imposed by the Organic Act is that discretionary management activities may be undertaken only to the extent that they will not impair park resources and values." Moreover, the obligation to " reduce or remove known hazards" is limited by what is " practicable and consistent with congressionally designated purposes and mandates."
These statements indicate that there are many factors the Service must consider while ensuring human safety in the national parks, such as " park resources and values," what is " practicable," and " congressionally designated purposes and mandates." Indeed, the manual explicitly provides, " [t]hese management policies do not impose park-specific visitor safety prescriptions. The means by which public safety concerns are to be addressed is left to the discretion of superintendents and other decision-makers at the park level . . . ." Such discretion includes " whether to . . . eliminate potentially dangerous animals."
The manual also contains guidance specific to exotic (that is, non-native) species, such as the mountain goats at Olympic. It declares that such species " will be managed--up to and including eradication--if (1) control is prudent and feasible, and (2) the exotic species . . . creates a hazard to public safety." How exotic species are to be managed is not specified. The manual, then, imposes no particular, mandatory course of action for managing an exotic animal that is threatening public safety.
Nor does Olympic's park-specific Nuisance and Hazardous Management Animal Plan. That document outlines various " management objectives" and " management alternatives," but nowhere does it require Park officials to use a particular management technique when confronted with a dangerous, exotic species. In fact, the plan indicates that different species and contexts will require different management options, as when it notes, " For some species, such as black bears, a long history of management failures and successes exists . . . . For other species, such as cougars, few proven management techniques exist." Chadd points to Superintendent Gustin's statement that the Service " move[s] to the next level [of management techniques] or series of levels" if " the problem ...