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Flugstad v. United States

United States District Court, Ninth Circuit

December 31, 2013



ROBERT J. BRYAN, District Judge.

This matter comes before the Court on the United States' Motion to Dismiss. Dkt. 20. The Court has considered the pleadings filed in support of and in opposition to the motion, and the file herein.

On March 14, 2013, Plaintiff filed this case asserting a negligence claim against the United States and others stemming from an injury Mrs. Flugstad suffered when she was startled by a horse and fell from a trial in the Dungeness National Wildlife Refuge ("Dungeness" or "the refuge"). Dkt. 1. Now ripe is the United States' Motion to Dismiss, where it asserts that this Court lacks subject matter jurisdiction over Plaintiffs' claim against it because of the discretionary function exception to Federal Tort Claims Act ("FTCA") liability, found at 28 U.S.C. § 2680(a). Dkt. 20. For the reasons set forth below, the discretionary function exception applies and the Plaintiffs' negligence claim against the United States should be dismissed.



Dungeness was established by Woodrow Wilson in an Executive Order in 1915, for the purpose of creating "... a refuge, preserve, and breeding ground for native birds..." Dkt. 20-3, at 14. It is situated on the northern coast of Washington's Olympic Peninsula along the Strait of Juan de Fuca. Dkt. 20-3. Dungeness encompasses 773 acres and contains Dungeness spit, the longest natural sand spit in the United States, as well as tidelands and upland forest habitat. Dkt. 20-4, at 1. It has diverse ecosystems, and is home to thousands of bird, animal, and plant species. Id.

Dungeness is managed by the United States Fish and Wildlife Service and is a part of the National Wildlife Refuge System. Dkt. 20-3. The mission of the National Wildlife Refuge System "is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." 16 U.S.C. § 668dd(a)(2). In administering the System, the Secretary of the Interior is instructed, in part, to "ensure that the mission of the System... and the purposes of each refuge are carried out;""plan and direct the continued growth of the System in a manner that is best designed to accomplish the mission of the System;" and to "recognize compatible wildlife dependant recreational uses as the priority general public uses of the System through which the American public can develop an appreciation for fish and wildlife." Id. at § 668dd(a)(4)(A), (C) and (H). The Secretary of the Interior is authorized to prescribe regulations to "permit the use of any area within the System, for any purpose, including but not limited to hunting, fishing, public recreation, and accommodation and access whenever he determines that such uses are compatible with the major purposes for which such areas were established." Id. at § 668dd(d)(1)(A).

Some of the recreational uses that are permitted in Dungeness are hiking and horseback riding. Dkt. 20-3. To that end, there are two trails that cross some 74 acres of forested uplands in the refuge. Dkt. 22, at 1. The main trail starts at the parking lot, leads visitors to a lookout point, and then onto the beach where visitors can hike the Dungeness Spit to the lighthouse. Dkt. 22, at 1-2. The upper portion of the main trail is between 8 to 10 feet wide to the lookout point, and is wheelchair accessible. Id. The primitive trail is an unpaved dirt trial around 3 to 4 feet wide. Id. It loosely parallels the main trial and joins the main trail at the lookout point. Id. From there (the last 500 feet or so) of the joined trails to the beach is about ten feet wide but is rather steep, and is not wheelchair accessible. Id. On this lower portion of the trail, there are wooden erosion control walls in some areas on the upslope side of the trial, and some retaining sections on the downslope side. Id. Hikers and horseback riders share the lower portion of the trail. Id.


In 2010, an improvement project was initiated by the Fish and Wildlife Service for Dungeness, which included the Visitor Enhancement and Trailhead Project, for the construction of a 3, 000 square foot visitor information area, and a Trail Reconstruction Project. Dkt. 30, at 2. Both projects were part of the same contract. Id.

As a result, in 2011, the trails in Dungeness were reconstructed by a private contractor, P.F. Pepiot, based on a design by another private contractor, Walker Macy. Dkt. 21, at 1. Fish and Wildlife Service Landscape Architect, Elizabeth Ludvigsen, was the contracting officer's representative, and was responsible for administering the contract with the private entities. Dkt. 21, at 1. There were two objectives in the Trail Reconstruction Project. Dkt. 21, at 2. The first was to make the upper portion of the trail handicap accessible. Id. The second objective related to the lower portion of the trial and was to 1) repair erosion damage, 2) clean drainage ditch and pipes, 3) rehabilitate the trail surface, and 4) install new and reconstruct existing retaining walls on the inslope. Id. Project specifications call for the contractor to build a "firm durable, permeable tread surface for the trailhead and the trail." Dkt. 27, at 37. In some areas of the lower trail, vegetation was used to maintain the integrity of the trial. Dkt. 27, at 40. In other areas, particularly where it is very steep and there was little vegetation to stop erosion, the trail contained "footboards" on the edge. Dkt. 27, at 40. These footboards existed prior to the rehabilitation of the trail. Dkt. 30, at 4. No new footboards were included in the contract for the trail. Id.


On May 6, 2012, Plaintiffs Mr. and Mrs. Flugstad were hiking up the lower portion of the refuge's trial from the beach. Dkt. 27, at 9. Three horseback riders were dismounted and leading their horses up the trial behind the Flugstads. Dkt. 27, at 11-12. Mrs. Flugstad testified that as the horses overtook them on the trail, she noticed that the lead horse appeared anxious. Id., at 16. Defendant Lael Swanson was leading this horse. Dkt. 1. Mrs. Flugstad became fearful of the horse, and so stepped off the trial onto the soft downslope edge. Id., at 17. A witness on the beach, Jeffrey Pearson, testified that he was watching and when Mrs. Flugstad stepped off the trail, saw her ankle roll and then she fell. Dkt. 27, at 24. One of the horseback riders, Amanda White, testified that she saw Mrs. Flugstad, who was "very close to the edge, " take a step back, stumble, grab a branch, and then the ground gave way beneath her. Dkt. 27, at 28-29. In any event, Ms. Flugstad fell about 20 feet. Dkt. 1, at 4. She landed on a log, fractured her C6 vertebra and seriously injured her spine. Dkt. 1, at 4. There was no footboard along the edge of the trail where Ms. Flugstad fell, but there was significant vegetation. Dkt. 27, at 29 and 40.


Plaintiffs filed this case against the United States and Lael Swanson on March 14, 2013. Dkt. 1. In it, Plaintiffs contend that the United States was negligent in failing to protect the safety of visitors, "including taking reasonable steps to protect the safety of pedestrians in the vicinity of horses, " and failing to design, construct, and maintain the refugee's trail in a safe manner. Dkt. 1, at 5. Plaintiffs also make a negligence claim against Ms. Swanson for failing to exercise ordinary care while "operating a horse." Id., at 5. Plaintiffs seek damages against both Defendants. Id.


The United States now moves to dismiss Plaintiffs' negligence claim, arguing that it is immune from suit under the discretionary function exception to the FTCA. Dkts. 20, and 29. The United States here argues that there was no federal statute, regulation, or administrative policy that mandated 1) what uses (including horseback riding) be allowed in Dungeness, 2) which safety hazards are to be identified and mitigated on the trials in Dungeness, or 3) or how to achieve all the objectives of the trail reconstruction, and so the challenged actions involved exercise of judgment. Id. It further argues that the decisions related to actions were susceptible to, and were based on, social, economic, and political policy considerations. Id. The United States argues, accordingly, that all these decisions were discretionary, and so Plaintiffs' claim against it should be dismissed. Id.

Plaintiffs oppose the motion, but acknowledge that they are not now challenging the "well settled issues" of appropriate use determinations (like allowing horseback riding), safety hazard analysis of the trial, or project design considerations. Dkt. 26, at 8.

Accordingly, to the extent the Complaint makes claims based on those theories, the discretionary function exception applies and Plaintiff's negligence claim against the United States on those issues should be dismissed.

Plaintiff argues, instead, that it is the government's negligent implementation of the trail rehabilitation project and failure to maintain improvements on federal land that ...

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