NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 9 2026

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRERES TIMBER, INC., an Oregon No. 24-7736 corporation; FRERES LUMBER CO., INC., D.C. No. an Oregon corporation, 6:24-cv-00018-MC Plaintiffs - Appellants,

MEMORANDUM*

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, Chief District Judge, Presiding

Submitted February 5, 2026** Portland, Oregon

Before: BEA, CHRISTEN, and DESAI, Circuit Judges.

Freres Timber, Inc. and Freres Lumber Co., Inc. (“Freres”) appeal the district

court’s dismissal of their lawsuit asserting Federal Tort Claims Act (“FTCA”) claims

against the United States Forest Service (“Forest Service”) for its negligent handling

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of the Beachie Creek fire. Freres also appeals the district court’s denial of Freres’s

request for jurisdictional discovery. We have jurisdiction under 28 U.S.C. § 1291.

We affirm.

“We review de novo the district court’s decision to grant a motion to dismiss

for lack of subject matter jurisdiction under the discretionary function exception.”

Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). We review the district

court’s decision to permit or deny jurisdictional discovery for abuse of discretion.

Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008).

1. The discretionary function exception to the FTCA bars claims “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). If the

discretionary function exception applies, federal courts lack jurisdiction. Esquivel v.

United States, 21 F.4th 565, 574 (9th Cir. 2021).

The discretionary function exception applies if (1) the challenged actions

involve “an element of judgment or choice,” and (2) the “judgment is of the kind

that the discretionary function exception was designed to shield.” Id. (citation

modified); Schurg v. United States, 63 F.4th 826, 831 (9th Cir. 2023) (citation

modified). “[C]laims involving how the government conducts fire suppression

operations are generally barred by the discretionary function exception.” Esquivel,

2 24-7736 21 F.4th at 574.

Here, at step one, the Forest Service’s decisions regarding how to use

helicopters and how to mount an attack to fight the Beachie Creek fire were

discretionary because they involved “an element of judgment or choice.” See id. at

574 (citing United States v. Gaubert, 499 U.S. 315, 322 (1991)). The Forest Service

Manual gives broad discretion to the Forest Service to make decisions based on the

circumstances of each fire. And Freres does not point to any “federal statute,

regulation, or policy [that] specifically prescribes a course of action” that the Forest

Service must adhere to when fighting a forest fire. See id. at 573; Miller v. United

States, 163 F.3d 591, 595 (9th Cir. 1998). Therefore, determining a fire suppression

plan and utilizing available resources inherently involves discretion. See Esquivel,

21 F.4th at 574.

At step two, the Forest Service’s discretionary decisions were “grounded in

social, economic, and political policy” concerns. See Gaubert, 499 U.S. at 323. In

making firefighting decisions, the Forest Service must weigh policy considerations

like firefighter and public safety, costs, weather, the expected efficacy of potential

measures, land management priorities, and the needs of other active fires. “These

considerations reflect the type of economic, social and political concerns that the

discretionary function exception is designed to protect.” Miller, 163 F.3d at 595;

Schurg, 63 F.4th at 834 (citation modified). Thus, even accepting as true the

3 24-7736 complaint’s factual allegations, the discretionary function exception applies to the

Forest Service’s actions, and the district court lacks jurisdiction over Freres’s claims.

See Terbush, 516 F.3d at 1128.

2. A denial of jurisdictional discovery 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. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th

Cir. 2003) (citation modified). Here, Freres alleged that the evidence conflicted on

two points central to its claim: (1) whether the Forest Service improperly used the

Beachie Creek fire for natural resource purposes, and (2) whether the Forest Service

fully utilized its aerial firefighting resources. But additional discovery on these

issues would not “bear[] on the question of jurisdiction” because it would not show

that the Forest Service’s actions were nondiscretionary. See LNS Enters. LLC v.

Cont’l Motors, Inc., 22 F.4th 852, 864–65 (9th Cir. 2022). The district court thus did

not abuse its discretion. See Gonzalez v. United States, 814 F.3d 1022, 1031 (9th

Cir. 2016).

3. Freres asks this court to overrule Miller, which held that claims

involving how the Forest Service conducts fire suppression operations are generally

barred by the discretionary function exception. 163 F.3d at 597. Miller is not

irreconcilable with a higher intervening authority, and thus we lack the authority to

overrule it. See Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th

4 24-7736 Cir. 2013) (citing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc)).

And because there is no irreconcilable conflict in Ninth Circuit precedent, we do not

call this case en banc. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–

79 (9th Cir. 1987) (en banc).

AFFIRMED.

5 24-7736