December 2009 - Parks & Recreation - 29

someone had cut open their tent and
taken S.I who was later found deceased.
It was apparent that S.I.'s injuries were
consistent with a bear attack. The bear
believed to be responsible for the death
of S.I. was tracked and killed on June
18, 2007.

Policy Immunity?
In general, the FTCA provides that the
federal government can be held liable for negligence " like a private individual " under the law of the jurisdiction
where the incident occurred. Limited
immunity, however, has been retained
in the FTCA under the " discretionary
function exception " for conduct " 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 of the
Government. " 28 U.S.C. § 2680(a) The
exception applies regardless of whether the government agent was negligent
in his duties, so long as his duties were
discretionary.
To determine the applicability of the
discretionary function exception, federal courts employ a two-part test. First,
a court must determine whether the
challenged conduct at issue involved a
matter of judgment or choice. The discretionary function exception would not
apply if a " federal statute, regulation, or
policy specifically prescribes a course
of action for an employee to follow " and
" the employee has no rightful option but
to adhere to the directive. "
Second, if the challenged conduct involves an element of judgment, a court
must next " determine whether that judgment is of the kind that the discretionary function exception was designed to
shield. " The discretionary function exception " protects only governmental
actions and decisions based on considerations of policy. "
As described by the federal court,
Cong ress specif ica l ly enacted the
discretionary function exception " 'to
prevent judicial second-guessing of

legislative and administrative decisions
grounded in social, economic, and political policy through the medium of an
action in tort. " Accordingly, to avoid dismissal of an FTCA claim, the court found
Plaintiffs " must allege facts which would
support a finding that the challenged actions are not the kind of conduct that can
be said to be grounded in the policy of
the regulatory regime. "

No Judgment or Choice
In this particular instance, Plaintiffs argued that state and federal authorities
had failed to implement a regulatory
mandate which required campgrounds
to be restricted or closed where nuisance black bears are active until the
source of the problem (attractant) has
been removed and/or the offending
bear has been removed. The federal
court disagreed that this particular regulation necessarily mandated " a specific course of conduct " based on the use
of the word " should, " rather than " shall "
or " must. "
In the alternative, Plaintiffs argued
further that a Forest Service Manual established an independent mandatory
policy that " at a minimum, the Forest
Service was required to post warning
signs after the first bear attack at the
Campsite. " Specifically, the Forest Service Manual provided as follows:
If practicable, correct known natural hazards when a site is developed and open for public use. If
the hazards remain or new natural
hazards are identified, take steps
to protect the public from the hazards. Tailor the action taken to each
hazardous situation. Consider posting signs, installing barriers, or, if
necessary, closing the site to address concerns of public safety.

The federal court, however, refused
to conclude that " this policy sets forth a
mandatory course of action that should
have been followed in this case. " In so
doing, the court noted that there was
" no statute, regulation, or agency policy
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DECEMBER 2009

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December 2009 - Parks & Recreation

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