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Burns v. United States

United States District Court, D. Arizona

December 4, 2017

Seth Burns, Plaintiff,
United States of America, Defendant.


          Neil V. Wake, Senior United States District Judge.

         Before the Court is Defendant's Motion for Summary Judgment Re: Discretionary Function Exception (Doc. 28).

         I. BACKGROUND

         In the early morning of September 10, 2013, Plaintiff and other employees of a cell phone tower/radio maintenance company encountered boulders on Road 557, which provides access to cell tower sites on Mount Elden in the Coconino National Forest. Although the boulders in the road blocked vehicle access to the cell towers, they did not present any danger. While the group was attempting to move a large boulder blocking the road, another boulder rolled down the hill, severely injuring Plaintiff.

         Plaintiff seeks damages against the United States under the Federal Tort Claims Act (“FTCA”), which waives the government's sovereign immunity for tort claims arising out of negligent acts or omissions of federal employees acting within the scope of their employment, with certain limitations and exceptions. The Complaint alleges that before September 10, 2013, significant rain fell on Mount Elden, resulting in boulders rolling down the mountain and onto Road 557. It further alleges that before September 10, 2013, “Defendants were aware of [or] should have been aware of the issue with boulders endangering persons using the Road” and “knew or should have known of the dangers to users of the Road” and “that the condition of the Road was unreasonably dangerous.” It also alleges that “Defendant failed to address the dangers posed by the conditions, thereby breaching their [sic] duties to Plaintiff and the public.” The Complaint does not identify a specific federal employee or employees who allegedly committed the tort for which the United States should be held liable. Nor does it expressly allege a specific act or omission that caused Plaintiff's injuries.

         In his response to the motion for summary judgment, Plaintiff contends that the gate on Road 557 should have been closed before he arrived at the scene of the rockslide. He does not state when he believes the gate should have been closed, and he does not identify any individual responsible for deciding whether to close the gate. Plaintiff contends the decision whether to close the gate was not discretionary and could have been performed by any Forest Service field employee because the conditions at the time of the accident presented imminent danger. Plaintiff does not contend that he was injured by any of the boulders or rocks that had already fallen onto Road 557 before he arrived. In essence, Plaintiff reasons that the Forest Service should have closed Road 557 in anticipation of the rockslide that injured him.

         Defendant contends that Plaintiff's claim is barred by the discretionary function exception to the FTCA because the claim is based on 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. See 28 U.S.C. § 2680(a). Although Defendant has pled additional defenses, it sought and received leave to pursue focused discovery and summary judgment based solely on the discretionary function exception. It contends that no statute, regulation, or policy directed any federal employee to take any specific action under the conditions that occurred in September 2013, including closing Road 557 or removing or securing loose boulders from the hillside above Road 557. For the purpose of the pending summary judgment motion, therefore, the Court does not consider whether the Complaint sufficiently states a claim under the FTCA or under Arizona negligence law.


         Summary judgment is proper if the evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial burden of identifying the basis for its motion and those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat a motion for summary judgment, the nonmoving party must show that there are genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact is one that might affect the outcome of the suit under the governing law. Id. at 248. A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         “A court must view the evidence ‘in the light most favorable to the [non-moving] party.'” Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Id. (quoting Anderson, 477 U.S. at 249). But it is not the Court's task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The evidence presented by the parties must be admissible. LRCiv 56.1(a), (b); see Fed. R. Civ. P. 56(e). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. 56(e)(2).


         A. The National Forest System and Road 557

         Plaintiff's injuries occurred on Road 557 in the Coconino National Forest. The National Forest System consists of “units of federally owned forest, range, and related lands throughout the United States and its territories, united into a nationally significant system dedicated to the long-term benefit for present and future generations.” 16 U.S.C. § 1609(a). The National Forest Service manages the roads under its authority and control through a nationwide forest transportation system. Congress found:

[T]he construction and maintenance of an adequate system of roads and trails within and near the national forests and other lands administered by the Forest Service is essential if increasing demands for timber, recreation, and other uses of such lands are to be met; that the existence of such a system would have the effect, among other things, of increasing the value of timber and other resources tributary to such roads; and that such a system is essential to enable the Secretary of Agriculture (hereinafter called the Secretary) to provide for intensive use, protection, development, and management of these lands under principles of multiple use and sustained yield of products and services.

16 U.S.C. § 532. Congress declared that a system of transportation to service that National Forest System be installed “to meet anticipated needs on an economical and environmentally sound basis.” 16 U.S.C. § 1608(a). “Roads constructed on National Forest System lands shall be designed to standards appropriate for the intended uses, considering safety, cost of transportation, and impacts on land and resources.” 16 U.S.C. § 1608(c). Congress provides funds for the National Forest System roads, and appropriations generally are used to construct and maintain forest service roads and routes.

         Chapter 7730 of the Forest Service Manual (“FSM”) addresses road operation and maintenance. FSM 7730.2 requires the Forest Service to operate and maintain National Forest System roads in a manner that meets road management objectives and provides for safe and efficient travel; access for the administration, utilization, and protection of National Forest System lands; and protection of the environment, adjacent resources, and public investment. FSM 7733.04c(2) states that it is the responsibility of forest supervisors to provide for “identification of design and operational aspects of [National Forest System] roads that are potential high hazards, including railroad crossings, bridges with limited load carrying capacity, and cattle guards with restricted width.” It does not mention naturally occurring hazards, such as rockslides, or maintaining hillsides. It requires forest supervisors to provide for “development of an action plan that establishes priorities for corrective measures based on traffic volume, traffic mix, and severity of the hazard.” FSM 7733.04c(3) states, “To the extent permitted by funding levels, systematically provide for elimination of identified hazards.” There are no regulations that require the Forest Service to take immediate and specific actions to remove or address alleged roadside or roadway hazards. FSM 7733.04c does not address or refer to road closures, much less direct forest supervisors to close roads under certain circumstances.

         Under National Forest Service regulations,

(a) The Chief, each Regional Forester, each Experiment Station Director, the Administrator of the Lake Tahoe Basin Management Unit, and each Forest Supervisor may issue orders which close or restrict the use of described areas within the area over which he has jurisdiction. An order may close an area to entry or may restrict the use of an area by applying any or all of the prohibitions authorized in this subpart or any portion thereof.
(b) The Chief, each Regional Forester, each Experiment Station Director, the Administrator of the Lake Tahoe Basin Management Unit, and each Forest Supervisor may issue orders which close or restrict the use of any National Forest System road or trail within the area over which he has jurisdiction.

36 C.F.R. § 261.50. Although Forest Service regulations require public involvement in decisions regarding designation of National Forest System roads, public involvement is not required for the responsible official to implement temporary, emergency closures pursuant to 36 C.F.R. § 261.50 to provide short-term resource protection or to protect public health and safety. 36 C.F.R. § 212.52(b)(1). If the responsible official determines that motor vehicle use on a National Forest System road “is directly causing or will directly cause considerable adverse effects on public safety . . . the responsible official shall immediately close that road, trail or area to motor vehicle use until the official determines that such adverse effects have been mitigated or eliminated and that measures have been implemented to prevent future recurrence.” 36 C.F.R. § 212.52(b)(2). As soon as practicable after the closure, the responsible official shall provide public notice of the closure, including reasons for the closure and the estimated duration of the closure. Id.

         The Coconino National Forest has approximately 5000 miles of forest roads, many of which are mountainous and surrounded by hills, rocks, and boulders. The Kaibab National Forest has approximately 3000 miles of forest roads. One road crew of six to eight Forest Service employees maintains the roads in both the Coconino National Forest and the Kaibab National Forest.

         Road 557 is a Level 2 road in the Coconino National Forest and is not managed as a public road. Forest Service officials are given discretion to implement safety management systems for roads not managed as public roads, such as Level 2 roads. The Forest Service Manual states that Level 2 is the classification for roads open for use by high clearance vehicles for which passenger car traffic, user comfort, and user convenience are not considerations. It ...

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