United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States District Court
the Court is the United States' Motion to Dismiss
Plaintiffs' Amended Complaint. See Dkt. 42. For
the reasons explained below, the Court will deny the motion
to dismiss plaintiffs' tort claims. The Court will also
deny the motion to dismiss plaintiffs' quiet title claim,
though it will order plaintiffs to either: (1) join the State
of Idaho as a required party under Federal Rule of Civil
Procedure 19(a); or (2) make a showing as to why the quiet
title claim should proceed in the State's absence.
lawsuit concerns Grays Lake, which is a 22, 000-acre marsh in
Eastern Idaho, northeast of Soda Springs. Orestes S. John
first surveyed the lake in 1877, describing it as “a
shallow lake of uncertain or variable extent . . . margined
by fields of tule, and treacherous bog.” See
Sibbett Dec. ¶¶ 2, 3 & Ex. 1. The marsh
was historically used by ranchers and homesteaders for haying
time, tensions arose between the ranchers and the United
States government. Both sides claimed ownership to the
property. The government wished to use the marsh as a water
storage facility for the Shoshone Bannock Tribes and for a
wildlife refuge, while the ranchers wished to continue using
the marsh for haying and grazing.
1965, to clarify uses and ameliorate tensions, various
ranchers (including the plaintiffs here) and the government
entered into identical 99-year Refuge Use and Cooperative
Use Agreements. See Dkt. 23-3. The Cooperative
Use Agreements provide that the government will use the
middle of the lakebed - which the parties varyingly describe
as a donut hole, the inner ring, or the Exempt Area - for a
wildlife refuge and for water storage. As for the remaining,
one-half-mile wide outer ring, the ranchers would continue to
use that area for haying and grazing. Id.
government also planned to build a perimeter dike enclosing
the donut hole. See Dkt. 23-3, at 2 (fifth and ninth
unnumbered “whereas” clauses); id.
¶ (2). The basic idea was that the water within the
dike would be used for the Tribes and for waterfowl, while
the dried area outside the dike would be used for continued
haying and grazing.
discussed further below, the agreements between the ranchers
and the government do not obligate the government to build
the perimeter dike. Instead, these agreements simply grant
the government the exclusive right to construct a dike. But a
few months before the ranchers entered into the Cooperative
Use Agreements with the government, the Bureau of Indian
Affairs (BIA) and the Department of Sport Fisheries and
Wildlife (“Fish & Wildlife”), entered into a
separate Memorandum of Understanding with each other
regarding the Grays Lake wildlife refuge. See 1964
Memorandum of Understanding between BIA and Fish &
Wildlife, Dkt. 23-4; Bloomfield Dec. ¶ 7.
That agreement states that “the Bureau of Sport
Fisheries and Wildlife will, as funds become available,
construct dikes, roads, canals, control structures, fences,
and operational headquarters; . . . .” 1964
Memorandum of Understanding, Dkt. 23-4, ¶ 2. This
agreement also states that water levels could be manipulated
at certain times, in certain pools, “PROVIDED, HOWEVER,
that the . . . perimeter diking system is to be
impervious.” Id. ¶ 3.
documents prepared in the spring or early summer of 1965 also
refer to the planned perimeter dike, including this statement
in a June 16, 1965 Department of Interior news release:
“Development of the Grays Lake National Wildlife Refuge
will include construction of a periphery dike, water control
structures, and pumping facilities.” Ex. D to Bloom
Dec., Dkt. 23-5. See also Ex. K to Smith Dec., May
14, 1965 Memo (estimating costs for construction of
dikes and other facilities).
government began construction of the perimeter dike but never
completed it. According to plaintiffs, the small section of
the dike that was completed failed to impound the water
inside the dike and also failed to dry up the area outside
the dike. See Sibbett Dec., Dkt. 8, ¶ 8.
Regardless, the government left the partially constructed
dike in place, rather than removing it. Plaintiffs say the
partially constructed dike continually exacerbates spring
flooding on their properties.
ranchers filed this action in December 2012. Shortly
afterward, the Court granted the parties' motion to stay
the proceedings while they attempted to settle their
differences. Mar. 13, 2013 Stay Order, Dkt. 10.
Several co-plaintiffs resolved their disputes, which included
selling their lakebed properties to the government. The
remaining two plaintiffs - Beavertail, Inc. and Grays Lake
Land & Cattle, Inc. - have not settled. In November 2015,
the Court lifted the stay, and in September 2016, the Court
granted the government's motion to dismiss the complaint,
with leave to amend. See Sept. 29, 2017 Order, Dkt.
38. Plaintiffs have now filed their amended complaint, and
the government again moves to dismiss. See Dkts. 39,
allege four claims. The first three, for negligence,
negligence per se, and trespass, are brought under the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§
2671-2680. The fourth is a quiet title claim, brought under
the Quiet Title Act, 28 U.S.C. § 2409a(d). See Am.
Compl. Dkt. 39.
government contends that plaintiffs' tort claims are
barred by the discretionary function exception to the FTCA.
Alternatively, the government argues that the tort claims are
barred by the FTCA's two-year statute of limitations and
because the government has the right to possess the inner
ring of the lakebed. The Court will address each argument in
turn, beginning with arguments related to the FTCA's
discretionary function exception.
The Governments' 12(b)(1) Motion to Dismiss
Plaintiffs' Tort Claims
The Governing Legal Standard
government raises the discretionary function exception within
its Rule 12(b)(1) motion. A Rule 12(b)(1) jurisdictional
attack may be facial or factual. Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In
a facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction. By contrast, in a factual
attack, the challenger disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction. The government's attack is factual, as it
relies on extrinsic evidence and does not assert lack of
subject-matter jurisdiction based solely on the pleadings.
resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary
judgment. Savage v. Glendale Union High Sch., 343
F.3d 1036, 1039 n. 2 (9th Cir. 2003) (citing White,
227 F.3d at 1242). The court need not presume the
truthfulness of the plaintiff's allegations.
White, 227 F.3d at 1242. Safe Air for
Everyone, 373 F.3d at 1039.
“[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.
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). One of the principal purposes
of the summary judgment “is to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). It is
“not a disfavored procedural shortcut, ” but is
instead the “principal tool[ ] by which factually
insufficient claims or defenses [can] be isolated and
prevented from going to trial with the attendant unwarranted
consumption of public and private resources.”
Id. at 327.
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Material facts are those that may affect the outcome of the
case. See Id. at 248.
moving party is entitled to summary judgment if that party
shows that each issue of material fact is not or cannot be
disputed. To show the material facts are not in dispute, a
party may cite to particular parts of materials in the
record, or show that the materials cited do not establish the
presence of a genuine dispute, or that the adverse party is
unable to produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1)(A) & (B); see T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626,
630 (9th Cir. 1987) (citing Celotex, 477 U.S. at
322). The Court must consider “the cited materials,
” but it may also consider “other materials in
the record.” Fed.R.Civ.P. 56(c) (3).
used to support or dispute a fact must be “presented in
a form that would be admissible in evidence.”
Fed.R.Civ.P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion “must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” R.
Court does not determine the credibility of affiants or weigh
the evidence set forth by the non-moving party. All
inferences which can be drawn from the evidence must be drawn
in a light most favorable to the nonmoving party. T.W.
Elec. Serv., 809 F.2d at 630-31 (internal citation
56(e)(3) authorizes the Court to grant summary judgment for
the moving party “if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it.” The existence of a
scintilla of evidence in support of the non-moving
party's position is insufficient. Rather, “there
must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson v. Liberty
Lobby, 477 U.S. at 252.
Overview of the Federal Tort Claims Act & The
Discretionary Function Exception
FTCA waives sovereign immunity, allowing tort claims to be
brought against the United States arising out of the
negligent conduct of government agents acting within the
scope of their discretion. 28 U.S.C. § 2671-80;
Miller v. United States, 163 F.3d 591 593
(9th Cir. 1998). Thus, the United States may be
held liable “to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 2674.
has carved out several exceptions to the FTCA's waiver of
immunity, however. See 28 U.S.C. § 2680. One of
those exceptions is the discretionary function exception,
which provides that the FTCA's waiver of sovereign
immunity does not extend to:
Any claim based upon an act or omission of an employee of the
Government . . . 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).
discretionary function exception is meant to avoid judicial
second-guessing of governmental decisions. It is not,
however, intended to create inconsistent liabilities between
private and government employees performing identical acts.
Thus, ‘in cases where the government is alleged to have
committed negligence in the performance of a function such as
that performed by a private citizen, rather than in the
fulfillment of a broad policy-making duty, the government is
subject to suit.'” Bear Medicine v. United
States, 241 F.3d 1208, 1214 (9th Cir. 2001)
(quoting Faber v. United States, 56 F.3d 1122, 1124
(9th Cir. 1995)).
applicability of the discretionary function exception is
determined by a two-part test, sometimes referred to as the
Berkovitz analysis. See generally Berkovitz v.
United States, 486 U.S. 531, 536 (1995). First, the
exception covers acts that are discretionary, so the
challenged action must be “a matter of choice for the
acting employee.” Id. The choice requirement
is not satisfied where a “federal statute, regulation,
or policy specifically prescribes a course of action for an