FRERES TIMBER INC FRERES LUMBER CO INC v. THE UNITED STATES (2024)

ORDER AND OPINION

This action arises from Plaintiffs’ Federal Tort Claims Act (“FTCA”) action against the United States. Before the Court is Plaintiffs’ Motion to Allow Jurisdictional Discovery, filed in response to Defendant's Motion to Dismiss for Lack of Jurisdiction. Pls.’ Mot., ECF No. 22; ECF No. 8. After carefully considering the parties’ pleadings, declarations, and attached exhibits, the Court concludes that the requested additional discovery would have little to no bearing on the resolution of Defendant's Motion to Dismiss. Accordingly, Plaintiffs’ Motion is DENIED.

BACKGROUND

When the U.S. Forest Service first observed the Beachie Creek Fire on August 16, 2020, the fire was a modest 3.5 acres in size. Compl. ¶¶ 1–2, ECF No. 1. By the time it was extinguished several months later, the fire had burned nearly 200,000 acres of the Willamette National Forest in Central Oregon. Id. ¶ 1.

Plaintiffs are two sister companies involved in the wood products industry who were impacted by the Beachie Creek Fire. Id. ¶¶ 3–4. Plaintiff Freres Lumber Co., Inc. owns approximately 17,000 acres of timber in the Willamette National Forest and supplies Plaintiff Freres Timber, Inc. with sawlogs for its veneer and plywood manufacturing operations. Id. The destruction from the Beachie Creek Fire destroyed a significant volume of Plaintiffs’ timber and resulted in lost profits and costs associated with their upcoming timber harvests. Id. ¶¶ 69–70.

Plaintiffs filed suit against the United States under the FTCA, alleging that Forest Service was negligent in its suppression of the Beachie Creek Fire. Id. ¶ 1, ECF No. 1. Defendant moved to dismiss this action for lack of subject matter jurisdiction, arguing that the Forest Service's challenged decisions are protected by the FTCA's discretionary function exception. Def.’s Mot. 7; ECF No. 8. Plaintiffs filed this Motion to Allow Jurisdictional Discovery, and the Court agreed to stay Defendant's Motion to Dismiss pending resolution of Plaintiffs’ Motion. Order, ECF No. 21.

STANDARDS

A motion to dismiss under Fed. R. Civ. P. 12(b)(1) challenges the subject matter jurisdiction of a federal court.¹ In a Rule 12(b)(1) jurisdictional factual attack, “the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

Under Fed. R. Civ. P. 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”² To obtain relief under Rule 56(d), the party moving for jurisdictional discovery must show that “(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Family Home and Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.2008).

“Discovery may be appropriately granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary.” Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). However, “a refusal to grant discovery to establish jurisdiction is not an abuse of discretion when it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction[.]” Laub v. Dep't of Interior, 345 F. 3d 1080, 1093 (9th Cir. 2003) (citations and quotations omitted).

DISCUSSION

Defendant cites the discretionary function exception as the basis for dismissal of Plaintiffs’ UTCA claims. Plaintiffs argue that they are entitled to jurisdictional discovery to determine the applicability of, and ultimately defeat, Defendant's affirmative defense.

A party can bring an action against the United States “only to the extent that the Federal Government waives its sovereign immunity.” Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996). 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.” Schurg v. United States, 63 F.4th 826, 831 (9th Cir. 2023) (quoting 28 U.S.C. § 1346(b)(1)).

The FTCA's waiver of sovereign immunity is not absolute, as “Congress was careful to except from the Act's broad waiver of immunity several important classes of tort claims.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). 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 [employee], whether or not the discretion involved be abused.” Esquivel v. United States, 21 F.4th 565, 573 (9th Cir. 2021) (quoting 28 U.S.C. § 2680(a)).

Courts employ a “two-step test to determine whether the discretionary function” applies. Id. at 573. “Courts must determine whether (1) the challenged actions involved an element of judgment or choice and, if so, whether (2) the judgment is of the kind that the discretionary function was designed to shield.” Schurg, 63 F.4th at 831 (citations and quotations omitted) (cleaned-up). If the challenged action satisfies both steps, then the federal government is immune from suit and federal courts lack subject matter jurisdiction over the dispute. Id. (quotation and citations omitted).

To determine if “the challenged actions involved an element of judgment or choice[,]” the Court determines “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.” Id.; Green v. United States, 630 F.3d 1245, 1249 (9th Cir. 2011). The analysis focuses on the “nature of the conduct, rather than the status of the actor[.]” Berkovitz v. United States, 486 U.S. 531, 536 (1988). If there is an element of judgment or choice, the Court proceeds to the second step and asks 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. Schurg, 63 F.4th at 831.

Plaintiffs theorize that the Forest Service may have violated its mandatory full suppression policy directive that the agency adopted for the Beachie Creek Fire by using it for natural resource management purpose. Pls.’ Mot. 6. Through extended discovery, Plaintiffs believe they will find “documents and communications about the decisions and justifications for not attacking the fire more aggressively.” Id. at 7. But such documents and communications, if they exist, are not relevant to the Court's application of the discretionary function exception.

Plaintiffs first argue that “Incident Objectives” registered in the Forest Service's Wildland Fire Decision Support System are binding “internal guidelines” which govern the Forest Service's actions. Pls.’ Mot. 12 (quoting United States v. Gaubert, 499 U.S. 315, 324 (1991)). But the Incident Decisions which include the Incident Objectives clearly leave room for future evaluation and decision-making:

1.10. Rationale

1. What alternatives (objectives, strategies, and tactics) are being considered?

Due to the time of year and projected fire spread probability, direct and indirect suppression, utilizing natural features when available, is the chosen course of action.

***

5. What are the critical thresholds that will trigger reconsideration of the proposed alternative and how will they be monitored?

This decision identifies incident objectives and requirements and a course of action that supports the strategy selected and articulates the leader's intent. Management Action Points have been established within this decision document in conjunction with the current PACE plan to identify critical thresholds that will trigger re-evaluation of current strategy. Consultation and review of these documents will help drive any alternatives. The Incident Management Team along with the Line Officer will review and analyze the alternatives when Management Action Points have been activated to ensure actions protect values at risk, provide for public and firefighter safety and keep stakeholders are informed or involved as necessary.

Coville Decl. Ex. 1, at 24, ECF No. 10 (emphasis added). There is a stark contrast between guidelines that mandate procedure and guidelines that outline policy considerations. The Incident Objectives fall into the latter group. As Defendant correctly articulates, the Incident Decisions only “outline certain requirements for fire suppression, but they do not eliminate discretion because they do not tell firefighters how to fight the fire.” Def.’s Resp. 8 (citing Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998) (cleaned-up).

Plaintiffs’ second argument seeking to assert whether the Forest Service used the Beachie Creek Fire as a natural resource tool is similarly futile. See Pls.’ Mot. 13. Assuming without deciding that “the government abused its discretion or made the wrong choice[,]” the discretionary function exception “protect[s] negligent conduct.” Esquivel, 21 F.4th at 574, 578. As the Incident Objectives failed to prescribe a mandatory procedure, Plaintiffs’ proposed inquiry would only highlight the Forest Service's policy analysis. Such an inquiry “fail[s] to raise any factual disputes that bear on the question of jurisdiction.” Atwater v. United States, No. 2:23-cv-01147 WBS AC2024 WL 266721, at *5 (E.D. Cal. Jan. 24, 2024); see also Gonzalez v. United States, 814 F.3d at 1033 (government “not required to prove ․ that any decision actually involved the weighing of policy considerations”); Lam v. United States, 979 F.3d 665, 674 (9th Cir. 2020) (courts “must not focus on or even consider the employee's actual thinking about what to do or not do, or the status of the employee, or the ‘routine or frequent nature’ of the discretionary act.”) (citing Gaubert, 499 U.S. at 334).

CONCLUSION

Because the requested additional discovery would have little to no bearing on the resolution of Defendant's Motion to Dismiss, Plaintiff's Motion to Allow Jurisdictional Discovery (ECF No. 22) is DENIED.

IT IS SO ORDERED.

DATED this 9th day of July, 2024.

FOOTNOTES

1.   The Court notes that a jurisdictional finding resolving genuinely disputed facts “is inappropriate when the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.” Safe Air for Everyone, 373 F.3d at 344 (citation and quotations omitted). Because the Court agreed to stay Defendant's Motion to Dismiss, the Court will not, at this time, decide whether to convert Defendant's Motion to Dismiss into a summary judgment motion sua sponte.

2.   Motions for jurisdictional discovery filed to oppose a motion to dismiss are analyzed under the same standard as those filed to oppose a motion for summary judgment. See Gonzalez v. United States, No. CV 12-00375-TUC-JGZ, 2013 WL 308762, at *8 (D. Ariz. Jan. 25, 2013), aff'd, 814 F.3d 1022 (9th Cir. 2016) (applying Rule 56(d) standard to jurisdictional discovery motion responding to motion to dismiss for lack of subject matter jurisdiction).

Michael McShane United States District Judge