Steven Albert Maher and Rebecca Maher, Husband and Wife v. United States

56 F.3d 1039 63 USLW 2786 Steven Albert MAHER and Rebecca Maher, husband and wife, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 93-16398. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 16, 1994. Decided May 26, 1995. Sheldon Lazarow, Lazarow & Lazarow, Tucson, AZ, for plaintiffs-appellants. Roger L. Duncan, Asst. U.S. Atty., Tucson, AZ, for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before: SNEED, NORRIS, and HALL, Circuit Judges. Opinion by Judge SNEED; Dissent by Judge NORRIS. SNEED, Circuit Judge: 1 This appeal presents a single question of law: Is a plaintiff who enters federal land to work a mining claim an invitee or a licensee under Arizona tort law? The district court held that the plaintiff in this case was a licensee. We affirm. I. 2 In August 1989, Steven Maher was injured on federal land in the Black Hills Rockhound Area when an access road gave way underneath the backhoe he was driving, causing the vehicle to roll down an embankment. The road was among several thousand miles of dirt roads running through federal lands in the area. These roads are not…

Opinion by Judge SNEED; Dissent by Judge NORRIS.

This appeal presents a single question of law: Is a plaintiff who enters federal land to work a mining claim an invitee or a licensee under Arizona tort law? The district court held that the plaintiff in this case was a licensee. We affirm.

I.

In August 1989, Steven Maher was injured on federal land in the Black Hills Rockhound *1041 Area when an access road gave way underneath the backhoe he was driving, causing the vehicle to roll down an embankment. The road was among several thousand miles of dirt roads running through federal lands in the area. These roads are not maintained by the federal Bureau of Land Management (BLM), which has jurisdiction over the area. Maher was using the road to reach a mining site, one of several to which his family had laid claim pursuant to federal law. He was in the process of performing maintenance work on the sites in order to preserve the claims, as required by federal regulations.

Maher filed suit against the BLM under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b), which permits judgments against the United States if “a private person! ] would be liable to the claimant in accordance with…

dissenting.

This is a Federal Tort Claims Act case. As in all such cases, we are required to respect Congress’ insistence that the United States be treated like any other person under state law, even when doing so is somewhat awkward. See 28 U.S.C. § 1346 (b). In this case, we must apply the Arizona common law regarding the condition and use of land to a landowner whose vast holdings render it an atypical subject under the law. In such cases, it is tempting to simply say that the *1044 state law could not possibly be intended to apply to the United States. However, Congress has nonetheless instructed this court to apply the state law to the United States as if it were a private person. In this case, I fear that we do not give sufficient attention to that command and create what appears to be a special amendment to the Arizona common law which has the sole effect of exempting the United States from the landowner’s duty to exercise reasonable care toward those it induces to enter its undeveloped lands in Arizona.

This case requires the application of the invitee-licensee distinction under Arizona law to a person working a mining claim on federal lands pursuant to the inducements…