Backfire 2000 v. United States

MEMORANDUM *

The United States Forest Service exercised discretion as contemplated by the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2671-2680, when it set backfires to fight the Bitterroot wildfires of 2000.

No statute, regulation, or policy mandates specific conduct in the setting of backfires during the course of firefighting operations. See Conrad v. United States, 447 F.3d 760, 765 (9th Cir.2006). Plaintiffs point only to general regulations and policies; such general regulations, however, do not remove discretion unless they specifically prescribe a course of conduct. Kelly v. United States, 241 F.3d 755, 761 (9th Cir.2001). Although there is mandatory language in some of the regulations on which Plaintiffs rely, those requirements do not eliminate discretion because they do not “tell firefighters how to fight the fire.” Miller v. United States, 163 F.3d 591, 595 (9th Cir.1998).

The Forest Service’s decision to set backfires was a policy judgment in that it “involved a balancing of considerations, including cost, public safety, firefighter safety, and resource damage,” and “[tjhese considerations reflect the type of…