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Evert v. United States

United States District Court, D. Wyoming

October 22, 2012

Yolanda EVERT, individually and as the Qualified Wrongful Death Representative of Erwin Evert, deceased, Plaintiff,
v.
UNITED STATES of America, Defendant.

Page 1281

Mark Aronowitz, Emily Roberts Rankin, The Spence Law Firm, Jackson, WY, for Plaintiff.

C. Levi Martin, Nicholas Vassallo, U.S. Attorney's Office, Cheyenne, WY, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

NANCY D. FREUDENTHAL, Chief Judge.

This matter comes before the Court on motion to dismiss by the Government on the basis that the claim brought in the case is subject to the exception from the waiver of immunity in the Federal Tort Claims Act (FTCA) for a claim " 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

Page 1282

involved be abused." 28 U.S.C. § 2680(a). The questions before the Court are (1) whether the challenged conduct (removal of closure signs before the grizzly bear left the study site) involves an element of judgment or choice and, if so, (2) whether that judgment or choice is of the kind that the discretionary function exception was designed to shield.

BACKGROUND

From May 27, 2010 until June 17, 2010, the Interagency Grizzly Bear Study Team (IGBST) conducted grizzly bear capture operations in the Kitty Creek drainage of the North Fork of the Shoshone River, seven miles from Yellowstone National Park's East Entrance. Document (Doc.) No. 1, ¶ 30. These operations consisted of three trap sites containing road kill baits and scent lure. Id. at ¶ 32. Sometime between June 16-17, 2010, an adult male grizzly bear was captured at one of the Kitty Creek trap sites. Id. at ¶ 42. On June 17, 2010, the IGBST crew immobilized the bear, pulled the bear's tooth, tattoo-stamped its upper lip, tagged its ears, administered antibiotics, took samples and fitted the bear with a radio collar. Id. at ¶¶ 44-45. Following these activities, the crew left the bear when it was showing limited signs of recovery, in order to check another trap site. Id. at ¶ ¶ 46-47. Upon leaving, the crew removed all warning signs which had stated, " DANGER! BEAR TRAP IN THE AREA. THE AREA BEHIND THIS SIGN IS TEMPORARILY CLOSED. THE CLOSURE IS EFFECTIVE FROM 6-11-10 TO 6-20-10." Id. at ¶ 49.

Erwin Evert lived in a Forest Service permitted cabin at the bottom of the Kitty Creek drainage. Id. at ¶ 33. On June 17, 2010, shortly after the IGBST crew removed the closure signs, Evert walked into the trap site area, encountered the recovering grizzly bear and was fatally mauled.

STANDARD OF REVIEW

This Court must convert the Government's Rule 12(b)(1) motion to dismiss the FTCA claims to a summary judgment motion under Rule 12(b)(6) " ‘ [i]f the jurisdictional question is intertwined with the merits of the case.’ " Franklin Sav. Corp. v. U.S., 180 F.3d 1124, 1129 (10th Cir.1999)(citing Bell v. United States, 127 F.3d 1226, 1228 (10th Cir.1997), quoting Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987)). Whether the discretionary-function exception applies is such a question. Id. Summary judgment should be granted when " there is no genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

ANALYSIS

The FTCA created a limited waiver of sovereign immunity from suit for certain specified torts of federal employees. Dalehite v. United States, 346 U.S. 15, 17, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Several exceptions to this waiver are contained within the FTCA, including an exception for " [a]ny claim ... 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." 28 U.S.C. § 2680(a). The discretionary function exception " marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao ...


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