December 23, 2021 - This Week at the Ninth

This Week at the Ninth: Controlled Burns

This week, the Ninth Circuit addresses the United States’ immunity from suit for fire suppression efforts.


The Court held that the district court correctly dismissed plaintiffs’ claims against the United States arising out of the intentional burning of their property during a controlled burnout for lack of subject matter jurisdiction because the claims fell within the discretionary function and misrepresentation exceptions to the Federal Tort Claims Act’s (“FTCA”) waiver of sovereign immunity.

The panel: Judges Gould, Tallman, and Bumatay, with Judge Tallman writing the opinion.

Key highlight: “‘Of all the foes which attack the woodlands of North America no other is so terrible as fire.’ – Gifford Pinchot, First Chief of the United States Forest Service.”

Background: Plaintiffs-appellants Alfredo Esquivel and Donald Willard owned fifteen acres that was intentionally burned by a Type 2 Incident Management Team, convened by the United States Forest Service, during a controlled burnout performed as part of the fire suppression effort to combat the approximately 217,000-acre 2015 North Star Fire in northeastern Washington. Plaintiffs sued the United States under the FTCA alleging that they relied on promises by the fire crew to use certain precautionary measures while performing the burnout, and the negligent failure by the crew to employ such measures caused unnecessary additional acreage to be destroyed by the fire. The district court dismissed the complaint on the ground that the United States was immune from suit because the claims fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity, and that to the extent plaintiffs’ claims were based on the fire crew’s lies, those claims were also barred by the FTCA’s misrepresentation exception.

Result: The Ninth Circuit affirmed. The Court explained that an action can be brought by a party against the United States only to the extent that the Federal Government waives its sovereign immunity. Under the FTCA, while the United States has waived its sovereign immunity for certain tort claims, Congress was careful to except from the Act’s broad waiver of immunity several important classes of tort claims. Under the discretionary function exception to the FTCA, there is no waiver of sovereign immunity for “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.” The plaintiffs did not challenge that the discretionary function exception applied to the fire crew’s decision to perform, and the subsequent performance of, a burnout on their property. But they challenged the exception’s applicability to the fire crew’s statements regarding precautionary measures that the fire crew would take while conducting the burnout.

The Court held this communication fell within the discretionary function exception. The Court explained that the communication involved an element of judgment or choice since no statute, regulation, or policy dictates the precise manner in which fire crews are to communicate with landowners when conducting burnouts on their property. The communication also reflected the exercise of judgment grounded in social, economic, or political policy because it was based upon the exercise or performance of choosing how to organize and conduct fire suppression operations, which undisputedly requires the exercise of judgment grounded in social, economic, or political policy. The Court also agreed with the district court that, to the extent plaintiffs’ claims were grounded in allegations that the fire crew lied about precautionary measures that would be taken, the FTCA’s misrepresentation exception applied as well. Under that exception, there is no waiver of sovereign immunity for claims “arising out of . . . misrepresentation [or] deceit.” Plaintiffs’ framed their theory as one where they suffered a loss as a result of one of the plaintiff’s decision to leave the property, made in reliance on a Bureau of Land Management employee’s intentionally false statement that he would use foam to control the burnout. This is exactly the kind of scenario to which the misrepresentation exception is properly applied. The Court also held that the district court had not improperly made factual determinations, nor had it abused its discretion in refusing to allow further jurisdictional discovery.