Michelle Schurg v. United States ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE SCHURG; DANIEL No. 22-35193
SCHURG; CHAD MILLER;
BECCIE MILLER; JACKIE D.C. Nos.
LOWE; LARRY A. ERNST; 9:20-cv-00061-DWM
MAUREEN A. ERNST; RONNIE 9:20-cv-00062-DWM
HARVIE; JOLEEN HARVIE; 9:20-cv-00063-DWM
MARK STERMITZ; MICHELLE 9:20-cv-00064-DWM
STERMITZ; BRIAN O’GRADY, 9:20-cv-00065-DWM
Plaintiffs-Appellants, 9:20-cv-00066-DWM
9:20-cv-00067-DWM
v. 9:20-cv-00090-DWM
UNITED STATES OF AMERICA,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted December 5, 2022
Seattle, Washington
Filed March 28, 2023
Before: M. Margaret McKeown, Eric D. Miller, and Holly
A. Thomas, Circuit Judges.
2 SCHURG V. UNITED STATES
Opinion by Judge McKeown
SUMMARY *
Federal Tort Claims Act
The panel affirmed the district court’s summary
judgment in favor of the United States in an action brought
by landowners alleging that the U.S. Forest Service is liable
under the Federal Tort Claims Act (“FTCA”) for failing to
comply with its duty to consult with them about fire-
suppression activities on or near their properties.
The FTCA’s discretionary function exception preserves
sovereign immunity as to claims regarding a government
employee’s “act or omission . . . 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.” 28 U.S.C. § 2680(a).
The panel applied the requisite two-step test to determine
whether the discretionary function exception applied. First,
the panel examined whether there was a federal statute,
regulation, or policy that prescribed the Forest Service’s
course of action regarding the agency’s communications
with the landowners during the Lolo Peak fire in the
Bitterroot Mountains in Montana in July 2017. The
published incident decision in place for the Lolo Peak fire
contained an instruction, included in the “objectives” section
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SCHURG V. UNITED STATES 3
of the incident decision, directing the Forest Service to
“[c]onsult with private landowners and local fire district
authorities if suppression activities have a high probability
of occurring on private lands.” The objective did not dictate
when or how the Forest Service was to consult with private
landowners and did not require the Forest Service to consult
with landowners individually. The panel held that the Forest
Service’s specific communications with the landowners
exceeded the incident decision’s instruction and involved an
element of judgment or choice sufficient to satisfy the first
step of the discretionary function exception.
Second, the panel examined whether the Forest Service’s
decisions related to consulting with landowners about fire-
suppression activities on and near their land were based on
social, economic, and political policy. The panel held that
the Forest Service’s decisions about notifying the
landowners about fire-suppression activities likely to occur
on and near their properties were susceptible to a policy
analysis. The panel concluded that determining how to
consult with private landowners while the Lolo Peak fire
raged was precisely the type of decision the discretionary
function exception was designed to shield, and the
landowners’ claims were thus barred by the discretionary
function exception. Accordingly, the district court properly
granted summary judgment for the Forest Service on all of
the landowners’ claims.
4 SCHURG V. UNITED STATES
COUNSEL
Kris A. McLean (argued), Tyson A. McLean, and Jordan A.
Pallesi, Kris A. McLean Law Firm PLLC, Missoula,
Montana, for Plaintiffs-Appellants.
John M. Newman (argued), Mark S. Smith, and Randy J.
Tanner, Assistant United States Attorneys; Jesse A.
Laslovich, United States Attorney; Office of the United
States Attorney, Missoula, Montana; for Defendant-
Appellee.
OPINION
McKEOWN, Circuit Judge:
The Lolo Peak fire tore through western Montana in the
summer of 2017. From July to September, the fire destroyed
multiple homes and buildings and required over 750
households to evacuate. The United States Forest Service,
together with the Montana Department of Natural Resources
and Conservation, managed the rapidly changing fire
conditions and actively communicated with the public about
the fire. After the fire, various affected landowners sued the
federal government. They claim that the Forest Service is
liable under the Federal Tort Claims Act (“FTCA”) for
failing to comply with its duty to consult with them about
fire-suppression activities on and near their properties.
Specifically, they argue that the Forest Service was required
to consult with landowners through individualized—rather
than public—communication channels.
SCHURG V. UNITED STATES 5
This case calls on us to consider the bounds of the
discretionary function exception to the FTCA. The district
court granted summary judgment for the Forest Service,
holding that it lacked subject matter jurisdiction because the
property owners’ claims were barred by the discretionary
function exception. We affirm.
I. BACKGROUND
In July 2017, a lightning strike in the Bitterroot
Mountains near Lolo, Montana ignited the Lolo Peak fire.
Hot, dry weather in western Montana throughout the
summer created dangerous fire conditions, posing an
extreme risk to firefighters and residents. The fire, fueled
initially by steep, heavily timbered terrain that prevented
firefighters from engaging safely, burned for nearly three
months. Appellants are landowners with homes in the
Macintosh Manor subdivision plus one individual, Brian
O’Grady, who owns undeveloped land, collectively “the
landowners.” Their property was damaged during the Lolo
Peak fire.
Shortly after the fire started, the Lolo National Forest
Supervisor requested the help of a fire team capable of
handling Type 1 incidents. Type 1 incidents are highly
complex, difficult to stabilize, consume significant
resources, pose a danger to neighboring populations, and
demand a high level of public communication. The Forest
Service and Montana Department of Natural Resources and
Conservation delegated the Type 1 incident management
team “full authority and responsibility for fire management
activities.” The primary duty of the team was to manage and
direct resources for “safe, efficient and effective
management of the fire,” with additional responsibility to
communicate internally and with the public about the fire.
6 SCHURG V. UNITED STATES
The team used the Wildland Fire Decision Support
System—an online program that allows fire teams to
monitor weather, model possible fire behavior, access fire-
related information technology, view applicable fire-
management plans, and more—to make strategic and tactical
fire-related decisions. The team prepared and published
incident decision reports on the Wildland Fire Decision
Support System platform. The first incident decision was
published in late July 2017 and updated in early August 2017
after the fire spread significantly. The decision included
contingencies to help the team act quickly if the fire reached
certain geographic locations and provided general guidelines
for public communication. In particular, the updated
decision stated that the team was required to “[c]onsult with
private landowners and local fire district authorities if
suppression activities have a high probability of occurring
on private lands.”
As part of its public-information function, the team
developed a multi-faceted communication strategy for the
fire designed to reach as many members of the public as
possible. For example, the team held in-person meetings at
local schools and churches and visited high-traffic areas such
as supermarkets, gas stations, and post offices daily to
disseminate print information and answer questions. On a
Facebook page developed specifically for the Lolo Peak fire,
the team posted updates and livestreamed public meetings.
The team posted daily about the fire on InciWeb, a public,
online platform for sharing incident-related information.
Community members could receive fire updates by visiting
the team’s information trailer, sending questions to a fire-
specific email account, and following the daily press releases
the team provided to print, television, and radio outlets. The
team decided to favor technology-based communication
SCHURG V. UNITED STATES 7
methods over slower, more individualized methods given
the number of residents in proximity to the fire, the
community’s sophistication, and the “widespread
availability of internet access.”
By early August, the fire had spread substantially and
spanned over 5,000 acres. Daily posts on InciWeb, as well
as other communication methods, informed the public about
the direction of fire growth and about the fire retardant,
aerial ignition, and fire-control lines the team was using for
mitigation and containment. Despite the team’s numerous
efforts, the fire reached O’Grady’s undeveloped, forested
land in mid-August. Based on the fire’s rampant spread and
strong wind conditions, the team decided to conduct firing
operations, which involved burning fuels to stop the fire’s
growth and “limit impacts to fire severity to vegetation,” on
O’Grady’s property on August 14. On InciWeb, the team
explained that firefighters were executing firing operations
and “carefully introducing fire in unburned areas,” or
“fighting fire with fire[] to slow the advance of the fire
front.” O’Grady learned that the fire had reached his
property by checking InciWeb, which he did “most days.”
In the days that followed, low humidity and strong winds
increased the fire’s intensity as it spread rapidly toward the
Macintosh Manor subdivision, where the remainder of the
landowners owned homes. On August 16, the fire burned
4,000 acres and crossed a geographic location listed in the
published incident decision, triggering evacuation orders
and signaling danger to Macintosh Manor. The team
determined that conducting firing operations to slow the
spread of the fire, although hazardous to residents in the area,
presented the best opportunity for containment. During the
morning of August 17, the team updated InciWeb to report
the raging fire conditions, explain that the team dropped
8 SCHURG V. UNITED STATES
retardant from aircraft to slow the fire’s spread, and notify
the public of the team’s plan to conduct firing operations by
the afternoon. The team also held a public meeting on
August 17, staffed an information trailer in the community,
and used other technology-based communication methods to
disseminate information. The burnout operations began that
day, but the fire nonetheless reached Macintosh Manor that
evening. Despite the team’s mitigation attempts, the fire
destroyed two homes and several accessory structures.
In the aftermath, O’Grady and several Macintosh Manor
residents brought negligence and intentional tort claims
against the Department of Agriculture and the Forest
Service. They argued that, based on the published incident
decision, the Forest Service was required to consult them
personally about the fire-suppression activities that occurred
on their properties but that it failed to do so. They further
claimed that the Forest Service intended the suppression
activities to cause fire damage on their properties. The
district court held that the discretionary function exception
to the FTCA barred the claims and granted summary
judgment for the Forest Service.
II. ANALYSIS
Under the FTCA, district courts have jurisdiction over
claims against the United States for money damages “for
injury or loss of property, or personal injury or death caused
by the negligent or wrongful act or omission” of any
government employee “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). The United
States has waived its sovereign immunity for certain tort
SCHURG V. UNITED STATES 9
claims under the FTCA, and parties can sue the government
only where sovereign immunity is waived. Esquivel v.
United States, 21 F.4th 565, 572–73 (9th Cir. 2021). We
review de novo the district court’s determination that it lacks
subject matter jurisdiction under the FTCA. Id. at 572.
The FTCA’s discretionary function exception preserves
sovereign immunity as to claims regarding a government
employee’s “act or omission . . . 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 government employee. Id. at 573 (quoting 28
U.S.C. § 2680(a)). The Supreme Court has crafted a “two-
step test to determine whether the discretionary function
exception” applies. Id. Courts must determine whether (1)
“the challenged actions involve an ‘element of judgment or
choice’” and, if so, whether (2) the “judgment is of the kind
that the discretionary function exception was designed to
shield.” Id. at 573–74 (first quoting United States v.
Gaubert, 499 U.S. 315, 322 (1991); and then quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)). The
federal government is immune from suit if the challenged
action satisfies both steps. Id. at 574. If so, “federal courts
lack subject matter jurisdiction” over the dispute, “even if
the court thinks the government abused its discretion.” Id.At the first step, we must “determine whether a federal
statute, regulation, or policy mandated a specific course of
action, or whether the government actor retained an element
of judgment or choice with respect to carrying out the
challenged action.” Green v. United States, 630 F.3d 1245,
1249 (9th Cir. 2011). We focus on the “nature of the
conduct, rather than the status of the actor,” and a
government employee’s action is nondiscretionary where it
is specifically prescribed by “a federal statute, regulation, or
10 SCHURG V. UNITED STATES
policy.” Esquivel, 21 F.4th at 573 (quoting Berkovitz, 486
U.S. at 536). If there is an “element of judgment or choice,”
we proceed to the second step and ask whether the
government actor’s action or inaction was “based on
considerations of public policy,” which are “the kind that the
discretionary function exception was designed to shield.”
Green, 630 F.3d at 1249 (quoting Terbush v. United States,
516 F.3d 1125, 1129 (9th Cir. 2008)). The landowners bear
the “burden of showing there are genuine issues of material
fact as to whether the exception should apply, but the
government bears the ultimate burden of establishing that the
exception applies.” Esquivel, 21 F.4th at 574 (quoting
Green, 630 F.3d at 1248–49).
This is not the first time we have addressed the
discretionary function exception in the context of forest
fires. Most recently, in Esquivel v. United States, we held
that the Forest Service’s actions fell within the discretionary
function exception when a wildfire threatened private
property and a fire crew obtained a resident’s verbal consent
before starting suppression activities, but the crew’s fire-
suppression activities damaged the property. Id. at 570–72.
At the first step, the Forest Service’s communication with
the landowners involved an element of choice because no
statute, regulation, or policy contained mandatory language
regarding landowner communication, and the governing
Forest Service manual provided that “reasonable discretion
in decision-making may be required” because of the
“dynamic, chaotic, and unpredictable” nature of wildfire. Id.at 574–75. At the second step, the landowner
communication was part of the Forest Service’s choice of
“how to organize and conduct fire suppression operations,
which undisputedly requires the exercise of judgment
SCHURG V. UNITED STATES 11
grounded in social, economic, or political policy.” Id. at
577.
We reached a similar conclusion in Miller v. United
States, holding that the presence of mandatory language in
Forest Service documentation, such as a directive to “apply
aggressive suppression action to wildfires that threaten
assets,” did not “eliminate discretion” because it did not tell
the Forest Service “how to fight the fire.” 163 F.3d 591,
594–95 (9th Cir. 1998). Additionally, the Forest Service’s
decision-making related to managing multiple fires was
susceptible to a policy analysis because it required the
agency to “balance competing concerns” such as public
safety, environmental protection, and resource management.
Id. at 596.
After Miller but before Esquivel, in Green v. United
States, we held that the discretionary function exception did
not apply in one circumstance where the Forest Service
performed fire-suppression activities near landowners’
property, “did not take any action to protect” the property,
and did not inform the landowners about its suppression
efforts. See 630 F.3d at 1247–48. Although the applicable
Forest Service manual directed the agency to ensure the
public was informed about fire-suppression efforts, the
Forest Service’s communication decision—or lack
thereof—involved an element of choice because the manual
did not “prescribe a mandatory course of action.” Id. at
1250. The Forest Service’s actions were not susceptible to a
policy analysis, however, because there was no evidence that
the agency had to determine how to allocate resources
between firefighting and public communications. See
Green, 630 F.3d at 1250–52. We explained that without
evidence that the Forest Service had to make a policy
decision about landowner communication “during
12 SCHURG V. UNITED STATES
firefighting operations,” such as a choice between
community distribution methods and “direct contact with
private citizens,” the Forest Service could not meet the
second step of the discretionary function exception. Id. at
1252.
As in Esquivel and Green, the landowners here challenge
the Forest Service’s communications with them regarding its
fire-suppression activities. Because the Forest Service’s
communication involved an element of judgment or choice
and was susceptible to a policy analysis, the discretionary
function exception to the FTCA applies and bars their
claims.
A. Element of Judgment or Choice
The first step of the discretionary function exception test
asks “whether there was a federal statute, regulation, or
policy in place that specifically prescribed a particular
course of action by the Forest Service” regarding the
agency’s communication with the landowners during the
Lolo Peak fire. See Miller, 163 F.3d at 594. “An agency
must exercise judgment or choice where no statute or agency
policy dictates the precise manner in which the agency is to
complete the challenged task.” Green, 630 F.3d at 1250. If
a statute or policy directs “mandatory and specific action,”
however, there can be no element of choice. Terbush, 516
F.3d at 1129.
The published incident decision in place for the Lolo
Peak fire directed the Forest Service to “[c]onsult with
private landowners and local fire district authorities if
suppression activities have a high probability of occurring
on private lands.” The instruction to consult with private
landowners appeared in the “objectives” section of the
incident decision alongside directives to avoid using aerial
SCHURG V. UNITED STATES 13
fire retardant in areas with endangered species and to ensure
“media messages are accurate.” Additionally, a letter from
the team leadership specified that the team could not deviate
from the published incident decision without issuing a new
decision.
Neither the objective to consult with private landowners
nor the team letter is a “federal statute, regulation, or policy
in place that specifically prescribed a particular course of
action by the Forest Service.” See Miller, 163 F.3d at 594.
The objective did not dictate when or how the Forest Service
was to consult with private landowners and did not require
the Forest Service to consult with landowners individually.
See Green, 630 F.3d at 1251 (holding that a plan requiring
the Forest Service to develop a map of private land and
record landowners’ contact information was a mere
“objective” involving an element of choice because it did not
“dictate[] the precise manner in which the agency [was] to
complete the challenged task”). In the absence of such
directives, the Forest Service necessarily had to choose the
best way to publicize information about the fire. Its decision
to do so mainly through technology-based methods like
InciWeb posts was central to its responsibility to manage the
fire and ensure public safety. That the incident decision does
not define “suppression activities” or “high probability,”
allowing the Forest Service discretion to determine when the
likelihood of fire-suppression activities on private land
warranted landowner consultation, further supports that the
“consult with private landowners” instruction involved an
element of judgment or choice. See Miller, 163 F.3d at 594–
95.
The Forest Service’s actions more than rose to the level
of consulting with private landowners. The Forest Service’s
numerous communications with the public included
14 SCHURG V. UNITED STATES
InciWeb and Facebook posts, in-person and broadcast
community meetings, daily press releases to media outlets,
information distribution in high-traffic areas, and more. The
specific communication with the landowners, including
InciWeb posts regarding fire-suppression activities on and
near Macintosh Manor and O’Grady’s undeveloped land,
exceeded the incident decision’s instruction and involved an
element of judgment or choice sufficient to satisfy the first
step of the discretionary function exception.
B. Considerations of Public Policy
The pertinent question at the second step of the
discretionary function exception test is whether the Forest
Service’s decisions related to consulting with landowners
about fire-suppression activities on and near their land were
based on “social, economic, and political policy.” See
Esquivel, 21 F.4th at 574 (citing Berkovitz, 486 U.S. at 537).
“The challenged decision need not be actually grounded in
policy considerations, but must be, by its nature, susceptible
to a policy analysis.” Green, 630 F.3d at 1251 (quoting
Miller, 163 F.3d at 593).
The Forest Service’s decisions about notifying the
landowners about fire-suppression activities likely to occur
on and near their properties are susceptible to a policy
analysis. To begin, the choice to post on InciWeb about fire-
suppression activities on and near Macintosh Manor and
O’Grady’s undeveloped land instead of talking directly with
the landowners “involved a balancing of considerations.”
Miller, 163 F.3d at 595. The Forest Service had to balance
the team’s safety during a time of worsening fire conditions
in mid-August 2017 with the time-intensive nature of
reaching members of the public on a personalized basis. Its
decision was informed by “the widespread availability of
SCHURG V. UNITED STATES 15
internet access and the public’s sophistication” in the areas
surrounding the fire. As we have previously held, “[t]hese
considerations reflect the type of economic, social and
political concerns that the discretionary function exception
is designed to protect.” Id.
The Forest Service’s communications about its fire-
suppression activities “were part of the decision to set, and
the subsequent conduct of, the burnout—which is
undisputedly a policy-based decision covered by the
discretionary function exception.” See Esquivel, 21 F.4th at
576. We explained in Esquivel that “communication
between fire crews and property owners is . . . covered by
the discretionary function exception” where the
communication is “based upon the performance of fire
suppression operations.” Id. The in-person conversation
between the fire crew and the resident in Esquivel was
susceptible to a policy analysis because the conversation
“concerned how to organize and conduct suppression
operations.” Id. The same reasoning applies here. For
example, the Forest Service’s decision to post on InciWeb
and use other technology-based methods to notify
landowners about the fire-suppression activities on and near
their properties instead of talking with them directly was
related to its decision about “whether, where, and how to set
and manage” the fire-suppression activities. See id. The
team decided to conduct firing operations, used technology
to communicate with the landowners about the firing
operations, and focused its resources on engaging the fire.
As in Esquivel, the communication about the fire-
suppression activities was not “separate and apart” from the
fire-suppression activities themselves. Id. at 577.
The landowners’ efforts to invoke Green to argue that
the Forest Service’s communication was not susceptible to a
16 SCHURG V. UNITED STATES
policy analysis fall short. There, we found no evidence that
the Forest Service had to choose how to allocate resources
between fire management and public communication.
Green, 630 F.3d at 1252. We explained that an example of
the kind of resource allocation susceptible to a policy
analysis—deciding “between community-wide distribution
(such as newspapers and radio stations) and direct contact
with private citizens (such as phone calls or door-to-door
contacts)”—was absent. Id. Here, in contrast, the Forest
Service made policy and resource choices based on the
sophisticated nature of the community and the need to focus
resources on fire management. Regrettably, the Forest
Service in Green made no effort to communicate with
landowners about its fire-suppression activities. See id. at
1248. The policy decisions missing in Green are present
here.
The Forest Service’s communication with the
landowners about fire-suppression activity that had a high
probability of occurring on or near their land satisfies both
steps of the discretionary function exception. Determining
how to consult with private landowners while the Lolo Peak
fire raged is precisely the type of decision the discretionary
function exception was designed to shield, and the
landowners’ claims are thus barred. Accordingly, the district
court properly granted summary judgment for the Forest
Service on all of the landowners’ claims.
AFFIRMED.