Opdahl v. United States Department of the Interior

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 JOANNE OPDAHL, et al., CASE NO. C23-5329 BHS 8 Plaintiff, ORDER 9 v. 10 UNITED STATES OF AMERICA, 11 Defendant. 12 13 This matter is before the Court on the government’s motion for summary 14 judgment, Dkt. 38, and motion to exclude testimony of plaintiffs’ experts, Dkt. 43. This 15 case concerns plaintiffs Joanne Opdahl and Hannah Saib’s tort claims against the 16 government for injuries they suffered when a tree fell onto their car as they drove through 17 Mount Rainier National Park on State Route (SR) 123. 18 Because the discretionary function exception to the Federal Tort Claims Act 19 (FTCA) shields the government from tort liability in this case, the government’s motion 20 for summary judgment, Dkt. 38, is granted. 21 22 1 I. BACKGROUND 2 The National Park Service manages Mount Rainier National Park. The Service 3 “strive[s] to understand, maintain, restore, and protect the inherent integrity of the natural 4 resources, processes, systems, and values of parks while providing meaningful and 5 appropriate opportunities to enjoy them.” Dkt. 40-1 at 6. While visitor safety is a 6 significant goal, the Service may undertake such “discretionary management activities . . 7 . only to the extent that they will not impair park resources and values.” Id. at 7. The 8 policies direct the Service to “reduce or remove known hazards” through “actions . . . that 9 have the least impact on park resources and values.” Id. 10 A regional policy directs parks in the Pacific West Region, including Mount 11 Rainier National Park, to administer hazard tree management programs to reduce “the 12 risk of injuries, fatalities and property damage due to tree failures in developed areas.” 13 Dkt. 40-2 at 3. Park superintendents “retain discretion to administer” these programs 14 “with available park staff and financial resources in the context of other legal 15 requirements and other considerations.” Id. at 6. The policy outlines several surveys that 16 parks should implement on a periodic basis: (1) drive-by surveys, (2) monitor surveys, 17 and (3) complete surveys. Id. at 8. It defines drive-by surveys as “deliberate visual scans 18 at slow vehicle speed” and “follow-up inspection of all trees . . . noted or suspected of 19 possessing hazard characteristics.” Id. Monitor surveys involve “a walk-through” and 20 “visual scan for any highly defective trees,” followed by a complete evaluation and rating 21 of “trees initially perceived to be highly defective.” Id. Complete surveys entail a 22 thorough inspection of “each apparently defective tree.” Id. 1 Mount Rainier National Park’s Hazard Tree Management Plan aims to “maximize 2 the benefit/cost ratio of the hazard tree program, both in terms of property damage 3 prevented and money expended for inspection and implementation” and “maintain a 4 balance between mitigating hazardous trees, ecosystem preservation, and cultural 5 landscape preservation.” Dkt. 40-3 at 8. The Plan requires periodic hazard tree 6 inspections by evaluators who are “familiar with signs and symptoms of diseases that 7 cause defects,” “able to recognize anatomical features associated with failures,” and 8 “aware of local weather and environmental conditions that may contribute to tree 9 failures.” Id. at 10. 10 The Plan specifies that except for “formal pullouts established for roadside visitor 11 attractions,” roads will “never receive complete surveys” due to “extensive personnel and 12 time requirements and the low potential for striking a target.” Id. at 13, 15. Along “high- 13 use roads” such as SR 123, the Plan prescribes “annual drive-by monitoring surveys” and 14 photo-documentation every three years “to determine which segments have highly 15 defective trees.” Id. at 13. The Service then performs individual tree evaluations on a 16 case-by-case basis “in response to observations of defective trees during drive-by 17 monitoring and reports from park staff, concessioners, and visitors.” Id. Suspected 18 defective trees are ranked for failure potential on a scale of 2 to 8. Id. at 13, 15. 19 In contrast, because developed areas of the Park face a higher likelihood of “tree 20 failure causing serious injury to visitors,” campgrounds and visitor use facilities will 21 receive annual monitor surveys and complete surveys every three to five years. Id. at 8, 22 1 32. Service employees are required to rate the hazard potential of each inspected tree that 2 is perceived to be defective. Id. at 12. 3 From November 2019 to October 2020, the Service engaged the Washington 4 State Department of Transportation (WSDOT) to conduct operational and emergency 5 maintenance of SR 123, between milepost 2.5 and 16.5. Dkt. 50-1 at 1. Trained Service 6 and WSDOT personnel were to jointly identify “[a]ll Hazard trees along the roads” and 7 “assess the conditions of all hazard trees using” the Park’s Hazard Tree Management 8 Plan. Id. at 3. The work order specified that the Service was responsible for removing 9 hazardous trees located more than eight feet off the road. Id. The Park’s Supervisory 10 Facility Operations Specialist reported that as far as he is aware, “WSDOT never reported 11 to NPS any concerns 12 In July 2021, Opdahl and Saib were driving northbound through the Park on SR 13 123, near milepost 10, when a decaying tree (the “subject tree”) fell onto their car. Dkt. 1. 14 Opdahl and Saib were injured, and a third individual in the car, Sabina Saib,1 was killed. 15 Id. They sued the government for dangerous condition of public property and negligence. 16 Dkts. 1, 22. 17 The government moves for summary judgment, asserting it is shielded from tort 18 liability under the Federal Tort Claims Act’s discretionary function exception. Dkt. 38 at 19 1. It argues the Park used its discretion to decide not to inspect and remove the subject 20 tree based on various policy considerations. Id. at 8. Opdahl and Saib respond the 21 1 The parties stipulated to dismissing plaintiff Sabina Saib’s estate’s claims. Dkt. 37. In 22 this Order, “Saib” refers to plaintiff Hannah Saib. 1 discretionary function exception does not apply to Park Service’s implementation of its 2 hazard tree removal policies. Dkt. 49 at 7–8. They argue that the WSDOT work order 3 imposed a mandatory duty to remove the subject tree. Id. at 4. 4 The government also seeks to exclude Opdahl and Saib’s expert testimony on the 5 grounds that the experts rely on likely incorrect factual assumptions. Dkt. 43. 6 II. DISCUSSION 7 Summary judgment is proper if the pleadings, the discovery and disclosure 8 materials on file, and any affidavits show that there is “no genuine dispute as to any 9 material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 10 P. 56(a). In determining whether an issue of fact exists, the Court must view all evidence 11 in the light most favorable to the nonmoving party and draw all reasonable inferences in 12 that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986); 13 Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact 14 exists where there is sufficient evidence for a reasonable factfinder to find for the 15 nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence 16 presents a sufficient disagreement to require submission to a jury or whether it is so one- 17 sided that one party must prevail as a matter of law.” Id. at 251–52. The moving party 18 bears the initial burden of showing that there is no evidence that supports an element 19 essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 20 (1986). Once the movant has met this burden, the nonmoving party then must show that 21 there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails 22 1 to establish the existence of a genuine issue of material fact, “the moving party is entitled 2 to judgment as a matter of law.” Celotex, 477 U.S. at 323–24. 3 A. Discretionary Function Exception 4 The FTCA waives sovereign immunity and permits tort claims against the 5 government for the negligent or wrongful act or omission of an employee acting within 6 the scope of his or her office or employment. 28 U.S.C. § 1346(b). This waiver of 7 immunity does not apply when the government is performing a discretionary function. 8 The discretionary function exception to the FTCA precludes governmental liability for 9 any claim based upon the exercise or performance, or failure to exercise or perform, a 10 discretionary function or duty, even if the discretion involved is abused. See 28 U.S.C. § 11 2680(a). It is the government’s burden to establish that the discretionary function 12 exception applies. Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014). 13 The Court first looks to the allegations in the complaint to identify the “particular 14 agency conduct with which Plaintiffs take issue.” Young, 769 F.3d at 1053. “Determining 15 the precise action the government took or failed to take (that is, how it is alleged to have 16 been negligent) is a necessary predicate to determining whether the government had 17 discretion to take that action.” Id. at 1054. 18 The Supreme Court has established a two-part test for determining whether the 19 discretionary function exception applies to the challenged government action. Bibeau v. 20 Pac. Nw. Research Found., Inc., 339 F.3d 942, 945 (9th Cir. 2003); see also United 21 States v. Gaubert, 499 U.S. 315, 322–23 (1991); Berkovitz by Berkovitz v. United States, 22 486 U.S. 531, 536 (1988). First, the challenged conduct must “be the product of judgment 1 or choice” on the part of the acting employee. Id. at 536. “[T]he discretionary function 2 exception will not apply when a federal statute, regulation, or policy specifically 3 prescribes a course of action for the employee to follow.” Id. When an employee acts 4 under such a mandatory directive, their conduct cannot be the product of judgment or 5 choice because they have “no rightful option but to adhere to the directive.” Id. 6 Second, that judgment or choice must be based on public policy considerations. Id. 7 at 536–37. “The purpose of the [discretionary function] exception is ‘to prevent judicial 8 second-guessing of legislative and administrative decisions grounded in social, economic, 9 and political policy through the medium of an action in tort.’” ARA Leisure Servs. v. 10 United States, 831 F.2d 193, 194 (9th Cir. 1987) (quoting United States v. S.A. Empresa 11 de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). “When 12 established governmental policy, as expressed or implied by statute, regulation, or agency 13 guidelines, allows a Government agent to exercise discretion, it must be presumed that 14 the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499 15 U.S. at 324. The applicability of the discretionary function exception depends “not on the 16 agent’s subjective intent in exercising [his discretion], but on the nature of the actions 17 taken and on whether they are susceptible to policy analysis.” Id. at 325. 18 The exception restores the government’s immunity in situations where its 19 employees are carrying out governmental or regulatory duties. See Chadd v. United 20 States, 794 F.3d 1104, 1108 (9th Cir. 2015); Blackburn v. United States, 100 F.3d 1426, 21 1428 (9th Cir. 1996); Faber v. United States, 56 F.3d 1122, 1124 (9th Cir. 1995). 22 Because the waiver of sovereign immunity is jurisdictional, the court lacks subject matter 1 jurisdiction over a claim that falls within the discretionary function exception. See 2 GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir. 2002). The exception 3 applies regardless of whether the government agent was negligent in his duties, so long as 4 his duties were discretionary. Kennewick Irrigation District v. United States, 880 F.2d 5 1018, 1029 (9th Cir. 1989). 6 Trees falling and injuring visitors on federally operated land is not a new 7 phenomenon, unfortunately. Two recent Ninth Circuit cases illustrate how the 8 discretionary function exception applies in such circumstances. The government cites to 9 Lam v. United States, 979 F.3d 665, 670 (9th Cir. 2020), to argue that its Hazard Tree 10 Management Plan allows Park employees significant discretion as to whether to inspect 11 trees along SR 123. Dkt. 38 at 11–12. Opdahl and Saib refer to Kim v. United States, 940 12 F.3d 484, 486 (9th Cir. 2019), for the proposition that once the Park undertook to inspect 13 the trees along SR 123, it was obligated to remove the subject tree under the Park’s 14 Hazard Tree Management Plan. Dkt. 49 at 8–10. 15 In Kim, a tree limb fell onto a tent in a Yosemite National Park campsite, killing 16 two teenage boys. 940 F.3d at 486. The families sued, challenging the government’s 17 failure to identify and abate the danger, and provide warnings about the danger posed by 18 the tree. Id. at 486–87. Yosemite officials had adopted a “Hazard Tree Management 19 Program” that mandated using a ranking system (the “Seven-Point system”) to assign a 20 risk level to trees inspected by park officials. Id. at 488. 21 The Ninth Circuit held that park officials “had substantial discretion in choosing 22 whether to adopt the Seven-Point system instead of some other method for evaluating 1 trees,” but the implementation of the system was not discretionary. Id. at 488–89. “Once 2 they undertook to inspect trees in the campground, [p]ark officials were required to do so 3 in accordance with their established policies.” Id. at 488. Rating trees under the Seven- 4 Point system involved technical considerations, not policy considerations. Id. at 489 5 (“Even if the Seven-Point system requires officials to make difficult choices, it still does 6 not ask them to make policy choices and it does not afford them an opportunity to rate a 7 tree based on their social, economic, or political views.”). Park officials were only tasked 8 with making decisions about the risk posed by a specific tree based on the Seven-Point 9 system. Accordingly, the Ninth Circuit held that the discretionary function exception did 10 not shield the Service from tort liability. Id. at 490. 11 The Ninth Circuit reached the opposite conclusion a year later in Lam. 979 F.3d at 12 670. There, a rotting oak tree buckled and fell onto another tree that collapsed onto the 13 plaintiff’s tent at Lake Mendocino campground. Id. at 670. An employee of the Army 14 Corps of Engineering, which operates the site, had inspected the oak tree in the past and 15 “never saw any reason to believe it was dangerous.” Id. at 671. The Ninth Circuit held the 16 discretionary function exception applied, distinguishing Kim on the grounds that “nothing 17 in the Corps’ policies at Lake Mendocino even approaches the level of specificity found 18 in [Yosemite National Park’s] Directive 25 or requires or mandates abatement or 19 mitigation of certain trees.” Id. at 678. Lake Mendocino’s policies did not specify any 20 “requirement, checklist, or criteria for how to conduct [daily hazard inspections] or what 21 they should cover.” Id. at 679. The site’s hazard tree removal plan required rangers to 22 “remove dead trees, limbs, and snags before they become a public hazard,” but provided 1 “no specific criteria for identifying dangerous trees.” Id. These “general requirements” 2 meant the plan’s execution was left to “Corps employees’ judgment and discretion.” Id. 3 Kim and Lam demonstrate that where a park’s management policies prescribe a 4 specific course of action that leaves little room for an employee to make their decisions 5 based on policy, the employee has a mandatory duty to perform that action, and the 6 discretionary function exception does not apply. 7 B. Park employees’ failure to inspect the subject tree was a discretionary choice subject to policy considerations. 8 Opdahl and Saib assert the government failed to protect against the dangerous 9 conditions of the subject tree by failing to remove it. Dkt. 22 at 3, 5. Because the 10 Service’s policies require an inspection prior to tree hazard mitigation, the complaint 11 necessarily challenges the government’s failure to inspect the subject tree. Dkt. 40-2 at 7– 12 8; Dkt. 38 at 9. 13 The government contends the Park’s failure to inspect and mitigate the hazard 14 from the subject tree involves a policy judgment and thus falls under the discretionary 15 function exception. Dkt. 38 at 8. It argues the Park’s hazard tree management plan did not 16 require the Service to inspect the subject tree. Id. at 10. Referring to the plan’s objectives 17 to “balance . . . mitigating hazard trees, ecosystem preservation, and cultural landscape 18 preservation,” it argues that “managing the Park’s trees is susceptible the type of policy 19 considerations entrusted to the Park Service.” Id. at 10, 11. 20 Opdahl and Saib argue the discretionary function exception does not apply to 21 implementation of the Park’s hazard tree management policy. Dkt. 49 at 8 (citing Kim, 22 1 940 F.3d at 488–89). They concede the Service has discretion to decide “whether to 2 inspect SR-123 for hazard trees,” but argue this discretion ended once the Service 3 “explicitly undertook to inspect, evaluate, and address hazard trees” and did “in fact 4 determine that hazard tree abatement was necessary.” Id. at 9. 5 1. Mount Rainier National Park’s Hazard Tree Management Plan allows for discretion. 6 The Court agrees with the government that the Park’s Hazard Tree Management 7 Plan allows the Service the discretion to decide which trees to inspect along SR 123. The 8 Plan sets general hazard tree inspection policies that did not impose a mandatory duty to 9 inspect the subject tree. 10 The Plan’s policies on tree inspection along SR 123 are “general requirements” 11 akin to those described in Lam 979 F.3d at 679. Unlike in Kim, where the park officials 12 undertook to “inspect trees in the campground,” the Service in this case is required only 13 to perform annual drive-by surveys and photo documentation of the trees along SR 123. 14 940 F.3d at 488. Individual tree evaluations only occur on a case-by-case basis, when 15 trees are deemed potentially hazardous, based on the observations and reports of Park 16 visitors and employees. The Plan mentions no specific criteria on how to identify 17 potentially hazardous trees beyond conducting a “deliberate visual scan at slow vehicle 18 speed” during drive-by surveys.2 Dkt. 40-2 at 8. It leaves identification of potentially 19 20 2 Opdahl and Saib do not allege, and there is no evidence before the Court, that the 21 Service or WSDOT failed to perform annual drive-by surveys along SR 123. Any such evidence would nonetheless be irrelevant to the Court’s determination that the Plan leaves the inspection 22 of trees along SR 123 to Park employees’ discretion. 1 hazardous trees to the judgment and discretion of experienced evaluators who can 2 “recognize anatomical features associated with failures” from drive-by surveys and photo 3 documentation. Dkt. 40-3 at 10. See Lam, 979 F.3d at 679 (Lake Mendocino’s 4 management plan contained “no specific mandate for what constitutes a weak, damaged, 5 diseased, or undesirable tree,” leaving the identification of dangerous trees to employees’ 6 discretion). Although the WSDOT work order states “All Hazard trees . . . are to be 7 identified” along SR 123, it provides no further clarification on how WSDOT and Service 8 employees will identify hazard trees. Dkt. 50-1 at 3. In fact, it defers to the Park’s Hazard 9 Tree Management Plan on assessing hazard tree conditions. 10 The Plan’s periodic survey requirements along SR 123 stand in contrast to the 11 monitoring and complete surveys required in more developed areas of the Park, where 12 employees must thoroughly inspect and rate suspected defective trees in the area using 13 the eight-point scale. Dkt. 40-3 at 12–13. 14 The Park’s policies do not mandate individual inspections of all the trees along SR 15 123, but instead leave that decision to Park employees. The Service’s decision not to 16 inspect the subject tree was discretionary, based on the employees’ judgment and 17 discretion. 18 2. The Service’s decision not to inspect the subject tree is susceptible to policy analysis. 19 Both the Service’s overarching management policies and the Park’s Hazard Tree 20 Management Plan contemplate various policy considerations in maintaining safe and 21 meaningful opportunities to enjoy the Park’s natural resources. Dkts. 40-1, 40-3. The 22 1 Service’s management policies provide expressly that while safety is a priority, the 2 Service will take “discretionary management activities . . . only to the extent that they 3 will not impair park resources and values.” Dkt. 40-1 at 7. The Hazard Tree Management 4 Plan similarly declares that the Park strives to “maximize the benefit/cost ratio of the 5 hazard tree program, both in terms of property damage prevented and money expended 6 for inspection and implementation” and “maintain a balance between mitigating 7 hazardous trees, ecosystem preservation, and cultural landscape preservation.” Dkt. 40-3 8 at 8. Trees along roads are exempt from complete surveys because of the “extensive 9 personnel and time requirements and low potential for striking a target.” Id. at 15. 10 Whether to inspect for potentially hazardous trees along SR 123 is plainly subject 11 to policy factors such as safety, budget, staffing constraints, and ecosystem and landscape 12 preservation. See Lam, 979 F.3d at 681. Opdahl and Saib provide no evidence to defeat 13 the Gaubert presumption that the Service’s decision not to inspect the subject tree was 14 based on these policy considerations. 15 The Court acknowledges the tragedy and hardship that arose from this unfortunate 16 incident. However, the Service’s decision not to inspect and remove the subject tree 17 along the side of SR 123 in Mount Rainier National Park was a discretionary choice 18 subject to policy considerations. The discretionary function exception applies, and the 19 government’s FTCA waiver of sovereign immunity does not. 20 The government’s motion for summary judgment, Dkt. 38, is GRANTED. The 21 government’s motion to exclude the plaintiffs’ expert opinions, Dkt. 43, is DENIED as 22 moot. 1 The Clerk shall enter a JUDGMENT and close the case. 2 IT IS SO ORDERED. 3 Dated this 29th day of May, 2025. A 4 5 BENJAMIN H. SETTLE 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22