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LAW REVIEW continued from page 27

mandating the precise manner in which
the United States should have managed
this situation. " As a result, under the circumstances of this particular case, the
court concluded that there was no mandatory policy which would preclude the
applicability of the FTCA discretionary
function exception.
On the other hand, the federal court
acknowledged that Plaintiffs could " still
establish that the United States' actions
are not protected by the discretionary function exception " under the second prong of the test. To do so, Plaintiffs
would have to " demonstrate that the
challenged conduct was not the type of
conduct that the discretionary function
exception was designed to shield, " i.e.,
conduct " grounded in the policy of the
regulatory regime. "

Policy Judgment?
In the absence of a mandatory policy on
point, the United States had contended
that the federal agents in this particular instance were exercising discretion,
raising the presumption that their acts
were grounded in policy. The federal court rejected this argument. In the
opinion of the court, it was " difficult to
conceive of what policy considerations
could have been at play in failing to keep
campers away from that Campsite while
the bear was being tracked-or failing
to at least warn campers about the situation. " Furthermore, the court noted
that " the bear that had earlier attacked
campers at that very Campsite presented a specific hazard, distinct from the
multitude of hazards that might exist in
a wilderness. "

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DECEMBER 2009

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Here, there was known danger-
specific in time and location. No policy judgment was involved, nor was
there an exercise of political, social,
or economic judgment. There might
have been a different outcome to this
motion had the earlier bear attack
happened several miles away or several days or weeks before, but such
a scenario is not before the court.
In this case, United States officials knew that an aggressive bear
had been present at the Campsite
earlier that day-and those officials
had decided that the bear was dangerous enough that it need to be
tracked and euthanized. When the
bear was not found that afternoon, no
other action was taken-and there
is no evidence of any discussion
about what might have been done.

In the opinion of the court, such evidence demonstrated " tragically " that
" no decision was ever actually made
about how to handle this threat to public safety. " On the contrary, the court
found " [t]he government official with
the authority to close the Campsite stated that he was never given the opportunity to make that call. " As a result, the
court agreed with Plaintiffs that " this was
a simple and tragic failure to act, which
does not fall under the discretionary
function exception to the FTCA. "
Accordingly, the federal court found
that " the United States' failure to take
any precautionary measures regarding the Level III bear, which was still on
the loose, does not fall under the discretionary function exception to the FTCA. "
The federal court, therefore, held that
the United States was not immune from
suit and denied the government's motion
to dismiss plaintiffs' claims. Plaintiff's
would, therefore, have an opportunity at
trial to demonstrate that the United States
should be held liable " like a private individual " for negligence under Utah state
law for the failure of the Forest Service to
close the campsite or provide some type
of warning about a known bear threat in
the immediate area.

December 2009 - Parks & Recreation

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