United States District Court, D. Idaho
MELINDA and RICHARD ARMSTRONG, individually and as the natural parents and guardians of R.W.A., a minor child, Plaintiff,
UNITED STATES OF AMERICA, Defendant,
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Before the Court is the United States' Motion to Dismiss (Dkt. 17). The Court heard oral argument on November 12, 2014, and now issues its decision. For the reasons set forth below, the Court will grant the motion and dismiss the action.
On September 5, 2010, Plaintiffs and their three children were camping in the Emmett Ranger District within the Boise National Forest, in an area known as "Tamarack Flat." Highfill Dec. ¶ 13, Dkt. 17-27. On the morning of September 5, Plaintiffs' son R.W.A. was sitting by the fire ring when a tree fell and pinned him to the ground. Armstrong Depo. 81:14-20, Dkt. 18-12. The boy was transported out of the forest by helicopter and taken to Saint Al's hospital to treat severe injuries to his leg and chest. Id. at 84:2-22, 92:2-7.
In 2005 - roughly five years before R.W.A. was injured - the United States Forest Service had inventoried dispersed campsites in the Emmett Ranger District in connection with a project known as the "Third Pole Project." See Erickson Depo. 21:12-22:18, Dkt. 18-4. The purpose of the Third Pole Project was to improve watershed conditions. Id. at 93:4-5; see also Mar. 13, 2006 Letter from District Ranger John Erickson to John Robison, Dkt. 18-19, at 1. As part of this project, rangers inventoried dispersed campsites to study what impact these sites were having upon water quality and riparian function. See Erickson Depo. 86:13 to 89:5 & 92:23 to 93:14, Dkt. 18-14.
The rangers who inventoried the dispersed campsites used an inventory sheet containing various line items to document their findings for each site. The sheet included a line item for identifying hazard trees. Pl. Ex. G at 2, inventory item 31, Dkt. 18-8. For purposes of the inventory, a hazard tree was defined as "[a]ny potential tree failure due to a structural defect that may result in property damage or personal injury." Gov. Ex. NW-13 at 11, Dkt. 19-8. Significantly, however, the Third Pole Project did not contain any directives on what the forest planned to do with any hazard trees that it did identify in these campgrounds.
Ranger Linda Bryant inventoried the campsite where the Armstrong family later camped. During that 2005 inventory, Bryant did not identify the tree that fell upon R.W.A. as a "hazard tree." Bryant Depo. 30:20-21, Dkt. 18-2; Pl. Ex. P at 2-3, Dkt. 18-9. The day after R.W.A. was injured, however, Ranger Bryant again inspected the tree again and determined that the tree was dead and had a decaying root system. Bryant Depo. 95:8-20, Dkt. 18-2. Bryant indicated that had the tree still been standing, it would have been classified as the highest risk of hazard tree. Id. at 96:9-17. It is estimated that prior to falling on September 5, 2010, the tree had been standing dead for somewhere between 10 to 25 years. DeNitto Depo. 14:5-24, Dkt. 18-10; Guyon Depo. 41:9-18, Dkt. 18-11.
In April 2013, the Armstrongs sued the United States for negligence and "negligent and/or intentional infliction of emotional distress." See Compl. at 9, Dkt. 1. The government moved to dismiss on the ground that this Court lacks subject matter jurisdiction under the discretionary function exception to the Federal Tort Claims Act. See 28 U.S.C. § 2680(a).
A defendant may move to dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) in one of two ways. See Thornhill Publ'g Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). The attack may be a "facial" one where the defendant attacks the sufficiency of the allegations supporting subject matter jurisdiction. Id. On the other hand, the defendant may instead launch a "factual" attack, "attacking the existence of subject matter jurisdiction in fact." Id. A "factual" attack may be accompanied by extrinsic evidence. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); Trentacosta v. Frontier P. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733. A plaintiff must then come forward with evidence outside the pleadings to support his jurisdictional allegations. Trentacosta, 813 F.2d 1558.
However, "[t]he relatively expansive standards of a 12(b)(1) motion are not appropriate for determining jurisdiction [pursuant to a "factual attack"]... where issues of jurisdiction and substance are intertwined. A court may not resolve genuinely disputed facts where the question of jurisdiction is dependent on the resolution of factual issues going to the merits." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (internal quotations omitted).
To the extent the issues become so intertwined, the summary judgment standard comes into play. Summary judgment is appropriate where a party can show that, as to any claim or defense, "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). The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 255 (1986). Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The Federal Tort Claims Act (FTCA) waived the United States' sovereign immunity for tort claims arising out of negligent conduct of its employees acting within the scope of their employment. Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). Thus, the government can be sued "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). There are various exceptions to this immunity, including the discretionary function exception.
The discretionary function exception restores sovereign immunity to the government when the plaintiff's claim "is 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 employee of the Government, whether or not the discretion involved be abuse." 28 U.S.C. § 2680(a). "In this way, the discretionary function exception serves to insulate certain governmental decision-making from judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the median of an action in tort." Terbush, 516 F.3d at 1129 (internal quotation marks and citation omitted).
Whether the exception applies is a question of law for the Court to decide. See Kelly v. United States ., 241 F.3d 755, 759 (9th Cir. 2001). The burden of proving the exception is on the United States. See Marlys Bear Medicine v. United States Dept. of Interior, 241 F.3d 1208 (9th Cir. 2001). As a remedial statute, the FTCA "should be construed liberally, and its ...