Melinda Armstrong v. United States , 689 F. App'x 557 ( 2017 )

FILED
NOT FOR PUBLICATION
APR 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELINDA ARMSTRONG, individually No. 15-35094
and as the natural parent and guardian
of RWA, a minor child; RICHARD D.C. No. 1:13-cv-00163-BLW
ARMSTRONG, individually and as the
natural parent and guardian of RWA, a
minor child, MEMORANDUM*
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted April 5, 2017
Seattle, Washington
Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,**
Chief District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
page 2
1. The Forest Service Handbook and Manual are irrelevant to this case
because the accident happened in a user-created, dispersed campsite. The
provisions on which plaintiffs rely apply only to trees in developed campsites that
the Forest Service actively maintains or on National Forest System roads.
2. Nor did the Third Pole Project create a mandatory duty for the Forest
Service to identify and remediate any particular dead tree in the dispersed
campsite. The Third Pole Project was “designed to improve soil, watershed and
aquatic conditions,” not to address safety issues. “Human Safety” risk was merely
one of thirty characteristics of the dispersed campsite that the Forest Service was
cataloging. The inventory sheet asked Forest Service personnel to indicate only
whether there were any human safety hazards, including hazard trees, at the
inspected campsite. It didn’t “specifically prescribe[] a course of action” for
identifying and remediating dead trees and, therefore, left that decision to the
Forest Service’s discretion. Berkovitz v. United States, 486 U.S. 531, 536 (1988).
3. The Forest Service’s decision not to identify and remediate particular
dead trees in dispersed campsites is the type of decision that “the discretionary
function exception [under the Federal Tort Claims Act] was designed to shield.”
Id. at 536. As we held in Terbush v. United States, “th[e] process of identifying
page 3
and responding to hazards in the wild implicates the [government’s] broader policy
mandates to balance access with conservation and safety.” 516 F.3d 1125, 1137
(9th Cir. 2008).
AFFIRMED.