Wood Ranch Ltd. v. United States, CIV 16-5014

KELLER SPECIAL TRUST: WOOD RANCH LIMITED PARTNERSHIP,OONAGH WOOD, GENERAL PARTNER;PERSONAL REPRESENTATIVE OF THE ESTATE OF LEANOARD J. WOOD,DECEASED; OONAGH WOOD,TRUSTEE OF THE FAMILY TRUST UNDER THE WILL OF LEONARD J. WOOD,Dated December 10, 2003; PAUL AND PHYLLIS GREGG;PHIL LAMPERT: ANNA MARIE EVANS; EVANS RANCH NO. 1, L.L.C.,And FREDRIC STEPHAN, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

CIV 16-5014

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

October 20, 2017

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DOC. 27

Pending before the Court is the Defendant's Motion for Summary Judgment, Doc. 27. In its motion, Defendant asserts Plaintiffs' allegations of negligence are barred by the discretionary function exception to the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA). The Court finds that, contrary to Defendant's claims, Plaintiffs are not challenging the decision to implement Stage II fire restrictions. Therefore, as the Court has considered all filings, for the following reasons, Defendant's motion is denied.

FACTUAL BACKGROUND

Plaintiffs are all owners of private property in Custer County, South Dakota that was destroyed in the "Myrtle Fire," which ignited on July 19, 2012 in the Hell Canyon Ranger District of the Black Hills National Forest near Custer, South Dakota. The fire was sparked when a road grader operated by a United States Forest Service (USFS) employee struck a rock while blading a dirt road—Forest Service Road (FSD) 324.1D. "It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. Congress has delegated its authority to protect the national forests of the United States to the Secretary of Agriculture, authorizing and directing the Secretary "to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom." Id. at § 529. Further, in 16 U.S.C. § 551, Congress provided:

The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside . . . and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.

Specifically, the management and protection of the national forests falls upon the USFS. The USFS is organized into a four-tier hierarchy composed of the national headquarters in Washington, D.C.; nine regional offices across the country; 123 forest offices within those regions; and district offices within each forest. The National Forest Management Act establishes the framework for the management of the National Forest System and requires the USFS to develop and maintain a forest plan for each unit of the National Forest System. See Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953, 957 n. 1 (9th Cir. 2005). Then the USFS implements each forest plan by approving or disapproving site-specific actions, all of which must be consistent with the overall forest plan. See id. Further, administrative policy guidance to USFS employees is issued as directives, or through correspondence, by the office of the Chief of the Forest Service and by field officers. 36 C.F.R. § 200.4(b). These directives are issued through the Forest Service Directive System, which is comprised of the Forest Service Manual and the Forest Service Handbooks. Id. at § 200.4(b)(1).

In conformance with federal law and policy, the Black Hills National Forest developed and maintains a Forest Plan, which serves as a guide for resource management activities in the Black Hills National Forest. Part of that Plan was the Black Hills Forest 2012 Fire Management Plan. "The Fire Management Plan was developed to help fire personnel and decision makers determine the management response to an unplanned fire ignition." Bobzien Dec. at para. 9. "[It] identifies and integrates all Forest Service wildland fire management guidance, direction, andinformation required to implement national fire policy and fire management direction in a single document, where it may be easily accessed by fire and resource personnel." Id.

Craig Bobzien was employed with the USFS as the Forest Supervisor of the Black Hills National Forest in 2012. As Forest Supervisor, Bobzien develops and maintains relationships with representatives from several different fire prevention agencies who play a role in the prevention and suppression of forest fires. The Forest Supervisor authorizes restrictions or closures, communicates those restrictions to affected agencies and ensures their review by law enforcement and legal counsel, as well as monitors enacted restrictions for compliance.

Bobzien referred to that year as "one of the big fire years," noting a number of other fires in 2012 and that it would have been likely that the fire danger rating in the Hell Canyon Ranger District area would have varied daily around the high, very high, and extreme ratings. The dryness and heat was cognizable early in the year, leading Bobzien to seek additional funding—known as Fire Severity Funds—from the Regional Forester on March 21, 2012 so that additional fire resources would be available for the upcoming season. Citing average temperatures in the lower elevations of the forest at 4 to 8 degrees above normal and precipitation as low as 25% of normal in the previous 30 days, fire potential for the month of April as above average, the occurrence and size of fires in the early spring as presenting a challenge, and expected weather conditions setting new highs at the five stations in the forest, Bobzien requested funds to support additional weekend and extended staffing due to "severe fire weather conditions."

Generally, weekly meetings are held between the Black Hills National Forests' Fire Management Officer and Assistant Fire Management Officer and other fire prevention agencies charged with prevention and suppression of fire responsibilities. One objective of these meetings is to monitor the technical aspects of any fire risk in the Black Hills National Forest, including the 10 hour, 100 hour, and 1,000-hour life fuel moisture levels, the energy release component, the National Fire Danger Rating System, the current and predicted fire weather forecasts, the current fire level and resistance to suppression, new starts, and fire acres burned, among other indicators. Bobzien implemented Stage 2 Fire and Smoking Restrictions for the Black Hills National Forest on June 29, 2012, following a meeting held that day. Bobzien considered the technical information presented, the benefits of aligning with the cooperating governmental entities, and other variables in making the decision to implement the restrictions.

Essentially, Bobzien weighed the risk of wildland fire against the risk of restricting use of the forest to the general public for recreation and to the work/profitability of any contractors working in the forest, as well as potentially placing any unduly burdensome restrictions on the ability of the public, some of whom maintain private residences within the Black Hills National Forest, to gain access to and from their lands via potentially restricted areas.

Doc. 39 at para. 13.

Fire restrictions are defined in three stages—Stage I, II, and III—and become more prohibitive with each stage. According to the Fire Prevention Program: Strategic Plan, a National Forest System Regional Handbook, "restrictions should be considered only after all reasonable prevention measures have been taken." Doc. 33-5 at 23. Under Stage II restrictions, individuals are prohibited from 1) building, maintaining, attending, or using a fire, campfire, or stove fire; 2) smoking, except within an enclosed vehicle or building; 3) using an explosive; 4) operating a chainsaw or other equipment powered by an internal combustion engine between 1:00 p.m. to 1:00 a.m.; and 5) welding, or operating acetylene or other torch with open flame. Id. Notably, operating a road grader is not prohibited under Stage II restrictions. Further, the next step in restrictions, Stage III, requires complete closure of the area. Id.

In addition to facilitating fire prevention and suppression, the Forest Supervisor is also charged with managing the forest's road system, including the maintenance of the forest's roads and trials. Forest Service Manual 7730-Road Operation and Maintenance states as its objective the operation and maintenance of National Forest System roads in a manner that meets road management objectives and provides for 1) safe and efficient travel; 2) access for the administration, utilization, and protection of National Forest System lands; and 3) protection of the environment, adjacent resources, and public investment. As part of the Forest Management Plan, and in accordance with federal policy requiring development of an annual maintenance plans, the Black Hills National Forest developed the Black Hills Forest 2012 Road Maintenance Plan, which includes a grid system whereby roads were inspected and maintained on a rotating basis.

FSR 324.1D is a level 2 maintenance category road located in the Hell Canyon Ranger District. Forest Service Handbook 7709.59 provides that a level 2 maintenance designation is

[a]ssigned to roads open for use by high clearance vehicles. Passenger car traffic, user comfort, and user convenience are not considerations. Warning signs and traffic control devices are not provided with the exception that some signing, such as W-18-1 'No Traffic Signs,' may be posted at some intersections. Motoristsshould have no expectation of being alerted to potential

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