Orberson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORI OBERSON, Legal Guardian for  Brian Musselman, an incapacitated person; KIMBERLEE MUSSELMAN, individually and as the Natural Mother of Devon Musselman, a minor, Plaintiffs-Appellees, v.

UNITED STATES DEPARTMENT OF

AGRICULTURE, FOREST SERVICE, Nos. 04-35268 Defendant-Third-Party Plaintiff- 04-35315 Appellant, and  D.C. No.

CV-99-00048-DWM

STATE OF MONTANA, by and AMENDED through the Department of Fish, OPINION* Wildlife and Parks; WEST

YELLOWSTONE CHAMBER OF

COMMERCE,

Defendants-Third- Party Plaintiffs, v.

JAMIE LOUIS LEINBERGER; PATRICK

B. KALAHAR; TIM A. JOHNSON,

Third-Party Defendants.  Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

*This amended opinion supersedes our previous opinion in this matter reported at 441 F.3d 703 (9th Cir. 2006)

1469 1470 OBERSON v. USDA Argued and Submitted December 7, 2005—Seattle, Washington

Filed January 30, 2008

Before: Ronald M. Gould and Marsha S.…