FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY G. GREEN; VICTORIA D.
GREEN, husband and wife; SILVER
No. 09-16180
STARR DE VARONA; JOHN ELBERT
ERVIN, husband and wife D.C. No.
Plaintiffs-Appellants, 08-311-TUC-CKJ
08-313-TUC-JMR
v.
OPINION
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
March 9, 2010—San Francisco, California
Filed January 25, 2011
Before: Betty B. Fletcher, Richard R. Clifton and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea;
Concurrence by Judge B. Fletcher
1561
1564 GREEN v. UNITED STATES
COUNSEL
John F. Munger, Adriane J. Parsons, Munger Chadwick,
P.L.C., Tucson, Arizona, for the plaintiff-appellant.
Dennis K. Burke, Christina M. Cabanillas, Charles A. Davis,
Tucson, Arizona, for the defendant-appellee.
GREEN v. UNITED STATES 1565
OPINION
BEA, Circuit Judge:
This case presents the question whether statutory qualified
immunity protects the U.S. Forest Service’s (“Forest Ser-
vice”) failure to notify nearby private property owners that it
intended to light a “backfire”1 to fight a wildfire and its failure
to notify property owners that the backfire had exceeded For-
est Service boundaries near their private properties. Gregory
and Victoria Green, Silver Starr De Varona, and John Elbert
Ervin (“Appellants”) appeal the district court’s dismissal for
lack of subject matter jurisdiction of their Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 1346(b), action for damages
against the United States. Appellants are neighboring land-
owners whose property was burned as a consequence of alleg-
edly negligent fire suppression activities conducted by the
Forest Service in its efforts against the “Bullock Fire,” a wild-
fire that was discovered burning in the Coronado National
Forest in Arizona on May 21, 2002, and which ultimately
burned over 30,000 acres. The district court held the United
States was immune from Appellants’ action because of the
discretionary function exception to the FTCA. We reverse the
district court because, although no statute or agency policy
dictates the precise manner in which the Forest Service must
act when it lights a backfire, there is no evidence in the record
that the Forest Service’s failure to notify the property owners
of the backfire it lighted was susceptible to a policy analysis
grounded in social, economic, or political concerns. See Ter-
bush v. United States, 516 F.3d 1125 (9th Cir. 2008).
1
A “backfire” is a fire set along the inner edge of a fireline to consume
the fuel in the path of a wildfire or change the direction of force of the
fire’s convection column. See http://www.nwcg.gov/pms/pubs/glossary/
information.htm.
1566 GREEN v. UNITED STATES
Background
On or about May 21, 2002, a wildfire was discovered burn-
ing in a remote area of the Coronado National Forest. The
fire, later named the “Bullock Fire,” ended up burning over
30,000 acres of land. At the outset of the Bullock Fire, the
Forest Service set containment boundaries for the fire in its
“Incident Objectives” that were posted for all fire fighting
employees to see. In setting the containment area, the Forest
Service intended to protect all of the private properties, busi-
nesses, and “Special Risk” areas (including radio towers,
observatories, and other facilities) located near or within the
Coronado National Forest.
Firefighters started a backfire near Appellants’ private
properties, and did not take any action to protect Appellants’
properties then or later. The Appellants’ properties were
clearly marked on maps the Forest Service had, and Appel-
lants had advised Forest Service personnel that Appellants’
properties were threatened by the fire. Despite this, Appel-
lants were not informed about the backfire or warned of the
risk the backfire posed to their properties. The backfire came
to exceed the desired containment area and burned Appel-
lants’ properties. Afterward, Forest Service employees admit-
ted that Appellants’ properties were not defended because the
firefighters had not been informed of their existence, and thus,
did not know the properties were at risk.2
2
In their pleadings, Appellants specifically allege that the Forest Service
“fail[ed] to communicate the risk [of the backfire] to the other firefighters
and the [Appellants] (as property owners).” First Amended Complaint at
¶ 10. Appellants also allege the firefighters admitted that they failed to
defend Appellants’ properties or advise the residents about the backfire
because the firefighters were not informed of the properties’ existence by
the Forest Service. Id. at ¶ 11. Appellants further alleged that if the fire-
fighters had been told by the Forest Service of the properties’ existence,
“they would have taken steps to protect [Appellants’] ranches, and warned
the [Appellants] of the risk posed to their ranches.” Id. at ¶ 16. “The negli-
gence of [the Forest Service] resulted in the total destruction of the struc-
tures, fencing, and personal property, as well as the devastation of its trees
and substantial erosion of the soils and creek bank of [Appellants’] ranch.”
Id. at ¶ 2.
GREEN v. UNITED STATES 1567
Under Arizona law, had the firefighters been private per-
sons under similar circumstances, they would have been liable
pursuant to Arizona Revised Statutes (“A.R.S.”) § 13-
1706(A) for damages realized as a direct and proximate result
of their setting a fire on one’s own property which then
burned Appellants’ properties. Pursuant to A.R.S. § 13-2404,
had the firefighters been private persons, they would face lia-
bility for refusing to help extinguish the fire or for failing to
protect Appellants’ properties.
Appellants Gregory and Victoria Green, Silver Starr De
Varona, and John Ervin filed virtually identical complaints
against the United States under the FTCA, which alleged the
Forest Service’s negligence during its efforts to suppress the
Bullock Fire damaged their properties. The cases were con-
solidated and the United States moved for their dismissal
under Fed. R. Civ. P. 12(b)(1) for lack of subject matter juris-
diction based on the discretionary function exception to the
FTCA, 28 U.S.C. § 2680(a).3 In response, Appellants moved
to amend their complaint, alleging the Forest Service set the
fire for “fuel reduction purposes and not for suppression of
the Bullock Fire, in blatant violation of policy and regula-
tions.” The district court held there was no evidence in the
record to support Appellants’ new contention, denied Appel-
lants’ motion to amend, and granted the United States’ motion
to dismiss on the ground the discretionary function exception
shielded the United States from suit. This appeal timely fol-
lowed.
Standard of Review
This court reviews de novo a district court’s determination
3
On a motion to dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1), proof of jurisdictional facts may be supplied by
affidavit, declaration, or any other evidence properly before the court, in
addition to the pleadings challenged by the motion. Corrie v. Caterpillar,
Inc., 503 F.3d 974, 980 (9th Cir. 2007).
1568 GREEN v. UNITED STATES
that it lacks subject matter jurisdiction under the FTCA and
a district court’s application of the FTCA’s discretionary
function exception. Terbush, 516 F.3d at 1125. The plaintiff
has the burden of showing there are genuine issues of material
fact as to whether the exception should apply, but the govern-
ment bears the ultimate burden of establishing that the excep-
tion applies. Miller v. United States, 163 F.3d 591, 594 (9th
Cir. 1998).4
Analysis
[1] The FTCA waives the federal government’s sovereign
immunity for tort claims arising out of the negligent conduct
of government employees and agencies in circumstances
where the United States, if a private person, would be liable
to the claimant under the law of the place where the act or
4
In Miller, this court held the implementation of a government safety
program with respect to fighting forest fires involved balancing competing
policy interests, and thus, the discretionary function exception applied.
163 F.3d at 597. Miller sued the United States under the FTCA for the
Forest Service’s alleged negligent handling of a forest fire that spread
from the Ochoco National Forest onto Miller’s property, causing damage.
Id. at 592. The district court granted the United States’s motion for sum-
mary judgment on the ground the discretionary function exception applied.
Id. We affirmed. Id. As to the first prong of the discretionary function
exception, we noted there were “no specific directives that mandate spe-
cific action in a multiple fire situation.” Id. at 595. Although there were
general firefighting guidelines, those guidelines did not tell the firefighters
specifically how to fight the fire. Id. Hence, the government had discretion
to choose the methods as to how to fight the fire. As to the second prong,
we held the Forest Service’s discretion in choosing how to fight the fire
was susceptible to public policy analysis. Id. at 595-96. The Forest Service
manual stated its policy was to “[c]onduct fire suppression in a timely,
effective, and efficient manner with a high regard for public and firefighter
safety.” Id. at 595. Accordingly, we held “[t]hese stated objectives and
policies demonstrate that the Forest Service’s decision regarding how to
attack a fire involved balancing considerations including cost, public
safety, firefighter safety, and resource damage. These considerations
reflect the type of economic, social, and political concerns that the discre-
tionary function exception is designed to protect.” Id.
GREEN v. UNITED STATES 1569
omission occurred. Terbush, 516 F.3d at 1128-29. However,
the discretionary function exception provides an exception to
the waiver of immunity from suit under the FTCA for “[a]ny
claim . . . based upon the exercise or performance or the fail-
ure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Govern-
ment, whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a). If the exception applies, immunity is rein-
stated.
[2] The discretionary function exception “marks the
boundary between Congress’ willingness to impose tort liabil-
ity upon the United States and its desire to protect certain
governmental activities from exposure to suit by private indi-
viduals.” Berkovitz, 486 U.S. at 536. According to the
Supreme Court, “[t]he basis for the discretionary function
exception was Congress’ desire to prevent judicial second-
guessing of legislative and administrative decisions grounded
in social, economic, and political policy through the medium
of an action in tort.” Id.
[3] As such, the Supreme Court has created a two-step test
that governs the applicability of this exception. Terbush, 516
F.3d at 1129. The first step is to determine whether a federal
statute, regulation, or policy mandated a specific course of
action, or whether the government actor retained an element
of judgment or choice with respect to carrying out the chal-
lenged action. Id. If the government action did involve choice
or judgment, the second step is to determine “whether that
judgment is of the kind that the discretionary function excep-
tion was designed to shield, namely, only governmental
actions and decisions based on considerations of public poli-
cy.” Id. (internal quotations omitted). If the challenged action
satisfies both of these two prongs, that action is immune from
suit—and federal courts lack subject matter jurisdiction—
even if the court thinks the government abused its discretion
or made the wrong choice. Id.
1570 GREEN v. UNITED STATES
1. Discretion
[4] Appellants do not challenge the Forest Service’s deci-
sion to light the backfire. Instead, they challenge “the Forest
Service’s actions surrounding that decision” (i.e., failure to
notify Appellants of the backfire, failure to inform firefighters
about and protect their properties). Appellants contend the
Forest Service’s actions relating to the backfire fall outside of
the discretionary function exception because the Forest Ser-
vice failed to adhere to requirements found in the Forest Ser-
vice Manual (“Service Manual”) and the Coronado Forest
Fire Management Plan (“Management Plan”).
An agency must exercise judgment or choice where no stat-
ute or agency policy dictates the precise manner in which the
agency is to complete the challenged task. Childers v. United
States, 40 F.3d 973, 976 (9th Cir. 1995). Although “standards
and procedures outline certain requirements for fire suppres-
sion, they do not eliminate discretion because they do not tell
firefighters how to fight the fire.” Miller, 163 F.3d at 595.
[5] Although the record before this court does not contain
the Service Manual provisions Appellants cite on appeal,5 the
language of the Service Manual that Appellants quote in their
briefing does not support Appellants’ claim that Forest Ser-
vice regulations prescribe a particular course of action once
the decision was made to light the backfire. The quotes are:
(1) a line officer is responsible for ensuring “that the public
and cooperators are informed of the selected alternatives [in
deciding on wildfire suppression efforts]”; and (2) “FIRE
5
Appellants’ Complaint and Reply to Defendant’s Motion to Dismiss
quoted a number of Service Manual provisions, but Appellants did not
attach as an exhibit the Service Manual in effect at the time of the Bullock
Fire (May 2002). The district court discovered that a number of the Ser-
vice Manual provisions that Appellants quoted were not in effect in May
2002; indeed, some provisions did not take effect until as late as 2005.
Appellants also failed to provide this court a copy of the Service Manual
in effect in May 2002.
GREEN v. UNITED STATES 1571
SUPPRESSION SAFETY. All activities shall reflect a com-
mitment to firefighter and public safety as a first priority.”
These quoted provisions do not prescribe a mandatory course
of action, and indeed, this court has previously found very
similar Forest Service fire-fighting provisions discretionary.
Miller, 163 F.3d 591.6
Appellants also contend the Forest Service breached the
following “Prevention Objective” of the Management Plan,
dated April 2002 (one month before the Bullock Fire): “Each
District will also develop and maintain annually a Wild-
land/Urban Interface map. This map will identify all private
land within and around District boundaries . . . and will list
owners of the property, telephone numbers, structures and
improvements, etc.” Appellants’ claim fails because the
development of the map is an “objective,” which contains no
certain date by which the objective must be completed and
6
The Forest Plan cited in Miller outlines various “standards” that are
mandatory requirements under the plan. The Millers specifically pointed
to language in the plan that required employees to “(1) monitor current
and recent fire reports to target specific risks; (2) apply aggressive sup-
pression action to wildfires that threaten assets, including private property,
by initial attack; (3) provide equipment outside of the fire management
organization to assist in the initial attack; and (4) meet the goal of control-
ling the fire by directly addressing the fire on the ground and preparing an
escaped fire analysis where appropriate.” Miller, 163 F.3d at 594. Further,
the Millers cited the Forest Service Mobilization Guide, which “provides
that an employee must (1) report a discovered wildfire and take appropri-
ate action until relieved; (2) not pass up an unmanned fire, even if the
employee is not rated as meeting primary firefighter fitness standards; if
the employee is the first qualified firefighter to arrive at the fire, (3)
assume Incident Commander status until formally relieved; (4) not hesitate
to use cooperator crews within the operation area; and if dispatcher, (5)
assure sufficient initial attack forces are available within established time
standards.” Id. We held the Forest Plan standards and Mobilization Guide,
which provide more guidance than the standards at issue here, did not
eliminate discretion. Id.
1572 GREEN v. UNITED STATES
does not “dictate[ ] the precise manner in which the agency is
to complete the challenged task.” Childers, 40 F.3d at 976.7
2. Policy Considerations
[6] Even though the Forest Service retained discretion in
fighting the Bullock Fire, we must consider whether that dis-
cretion involved the type of public policy judgment that the
discretionary function exception is designed to shield. Miller,
163 F.3d at 593. The discretionary function exception protects
only government actions and decisions based on social, eco-
nomic, and political policy. Id. “The challenged decision need
not be actually grounded in policy considerations, but must
be, by its nature, susceptible to a policy analysis.” Id.
In Miller, the Forest Service failed to contain the “Bald
Butte” fire due to the unavailability of requested air and
ground support when the fire was first spotted. Miller, 163
F.3d at 592. Shortly after the fire was spotted, the fire was
declared “escaped” and the fire management officer for the
local ranger district determined it was unsafe at that time to
commit resources to the fire. Id. On-the-ground fire suppres-
sion efforts did not occur until the day after the fire was spot-
ted. Id. The fire joined two other fires and crossed onto the
Millers’ property. Id.
[7] We held in Miller that the Forest Service’s choices in
how to fight a fire are “susceptible to a policy analysis
grounded in social, economic, or political concerns.” Id. at
595. Looking to the Forest Service Manual, we held the Ser-
vice Manual’s stated objectives and policies demonstrated:
7
Moreover, the lack of a Wildland/Urban Interface map is irrelevant to
Appellants’ claims because the Appellants’ alleged they made the Forest
Service aware of their properties. De Varona’s complaint states De Verona
“placed numerous telephone calls to [Forest Service] employees advising
of the location of the two privately owned ranches in the days just prior
to the lighting of the [backfire], and as it was burning.”
GREEN v. UNITED STATES 1573
[T]he Forest Service’s decision regarding how to
attack a fire involved a balancing of considerations,
including cost, public safety, firefighter safety, and
resource damage. These considerations reflect the
type of economic, social and political concerns that
the discretionary function exception is designed to
protect.
Id. (emphasis added). We referred to two lower court deci-
sions that held decisions regarding the allocation of fire sup-
pression resources are grounded in public policy because the
Forest Service is “required to balance the value of communi-
cations installations, private homes, endangered species, and
other resources.” Id. (quoting Parsons v. United States, 811 F.
Supp. 1411, 1420 (E.D. Cal. 1992)8 and Defrees v. United
States, 738 F. Supp 380, 385 (D. Or. 1990)9). In the instant
case, however, the Forest Service’s decisions regarding “how
8
In Parsons, owners of timber that was destroyed during a wildland fire
in a national forest sought damages under the FTCA, alleging the negli-
gence of various Forest Service employees during attempts to fight the fire
proximately caused destruction of their property. Parsons alleged the fol-
lowing negligent acts, among others: failure to secure adequate resources
to contain the fire; failure to implement a strategy properly to fight the
fire; and inadequate communications system during the fire. The district
court granted the government’s motion for summary judgment on the
ground the discretionary function exception applied to the fire fighters’
alleged negligent acts. Specifically, the district court held (1) Parsons
failed to cite an applicable mandatory directive, and the challenged actions
were discretionary; and (2) the Forest Service firefighters were required to
balance social and economic values to minimize damage from numerous
fires.
9
In Defrees, plaintiffs sued the Forest Service for the alleged negligence
of firefighters in combating a wildland fire that destroyed plaintiffs’ prop-
erty. The Forest Service had deployed only a three-person crew to attack
the fire at issue which, given high winds, proved inadequate. Other fires
had been assigned a higher priority than the fire at issue. The court con-
cluded that the discretionary function exception barred liability because:
In establishing priorities, assigning government personnel and
equipment, and deciding what private resources, if any should be
used, these employees were required to make social and eco-
nomic policy decisions. They were required to balance the value
of communications installations, private homes, endangered spe-
cies, and other resources.
Defrees, 811 F.Supp. at 385.
1574 GREEN v. UNITED STATES
to attack a fire” and the allocation of fire suppression
resources are not at issue.
[8] Instead, Appellants contend the Forest Service’s failure
to notify Appellants before and after the Forest Service lit the
backfire is not subject to the discretionary function exception.
We agree with Appellants because, unlike Miller, there is no
evidence in the record to support the Forest Service’s conten-
tion that the nature of its actions in this case—i.e., its deci-
sions when and whether to communicate directly with private
citizens whose properties might have been in harm’s way—
are susceptible to policy analysis. There is no evidence, for
example, that the Forest Service must determine how to allo-
cate personnel during firefighting operations between contact-
ing citizens and direct firefighting activity, or that the Forest
Service must determine during firefighting operations how to
allocate its communications resources between community-
wide distribution (such as newspapers and radio stations) and
direct contact with private citizens (such as phone calls or
door-to-door contacts). If the Appellants had been notified of
the proposed backfire, they might have been able to take mea-
sures to protect their properties, or at least ensured the Forest
Service took measures to do so. For purposes of this appeal
from a motion to dismiss, we find Appellants’ pleadings ade-
quately state such a possibility. Accordingly, and in light of
the specific record in this case, we disagree with the district
court’s application of the discretionary function exception.
Conclusion
[9] For the foregoing reasons, we reverse the district
court’s dismissal of Appellants’ claim for lack of subject mat-
ter jurisdiction and remand for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
GREEN v. UNITED STATES 1575
B. FLETCHER, Circuit Judge, specially concurring:
I concur in the result. I write separately, however, to clarify
our holding in Miller v. United States, 163 F.3d 591 (9th Cir.
1998), and to emphasize that the discretionary function excep-
tion does not apply to the government’s failure to warn of an
agency-created hazard.
I.
The majority concludes that the Forest Service’s decisions
regarding “how to attack a fire” and “the allocation of fire
suppression resources” are susceptible to a policy analysis
grounded in social, economic or political concerns, citing our
decision in Miller. Opinion at 1573-74. I disagree with the
majority’s suggestion that Miller immunizes the government
from liability for all decisions made in the course of fighting
any fire, particularly all decisions involving “the allocation of
fire suppression resources.”
Miller involved a very different factual scenario from the
one at issue here: a lightning storm in the Ochoco National
Forest lit several fires spread over a wide area. 163 F.3d at
593, 595. The Forest Service was unable to send aerial fire
retardants, smokejumpers or fire engines to fight one of the
fires (the Bald-Butte fire) because those resources were
already committed to other areas. Id. at 592. The district fire
management officer concluded that a direct ground-based
attack on the Bald-Butte fire would be ineffective, and
directed Fire Service officials to find and suppress other small
fires. Id. The Bald-Butte fire eventually joined with two other
fires and destroyed the Millers’ property. Id. at 593.
We concluded that the Forest Service’s guidelines and pre-
planned response levels, which dictated specific actions for
Forest Service personnel to take in fighting fires, did not
apply to a multiple-fire situation, where “the inevitable com-
petition for resources dictates discretion.” Id. at 595. Instead,
1576 GREEN v. UNITED STATES
we noted that the Fire Service’s Mobilization Guide specifi-
cally conferred discretion to fight a multiple-fire situation. Id.
at 594-95.
Turning to the question of whether the Forest Service’s
decision not to commit resources to fighting the Bald-Butte
Fire was susceptible to a policy analysis, we looked to three
separate objectives and policy considerations which affected
the Forest Service’s decision-making process when fighting a
fire:
5130.2-Objective. The objective of fire suppression
is to suppress wildfires at minimum cost consistent
with land and resource management objectives and
fire management direction as stated in fire manage-
ment action plans.
5130.3-Policy. Conduct fire suppression in a timely,
effective, and efficient manner with a high regard for
public and firefighter safety.
5131-Initial Action . . . 2. Initiate initial suppression
action that provides for the most reasonable proba-
bility of minimizing fire suppression costs and
resource damage, consistent with probable fire
behavior, potential resource and environmental
impacts, safety, and smoke management consider-
ations.
163 F.3d at 595. We noted that “[t]hese stated objectives and
policies demonstrate that the Forest Service’s decision regard-
ing how to attack a fire involved a balancing of consider-
ations, including cost, public safety, firefighter safety, and
resource damage.” Id. These considerations, we concluded,
“reflect the type of economic, social and political concerns
that the discretionary function exception is designed to pro-
tect.” Id.
GREEN v. UNITED STATES 1577
Contrary to the majority’s suggestion, Miller simply does
not stand for the proposition that all of the Forest Service’s
decisions regarding how to fight any fire are susceptible to a
policy analysis because, in fighting a fire, the Forest Service
must allocate fire suppression resources.1 See Opinion at
1573-74. Instead, Miller stands for the proposition that the
Forest Service’s decision not to attack one fire when faced
with multiple, simultaneous fires is susceptible to policy anal-
ysis because it requires the Forest Service to balance the allo-
cation of resources among multiple emergency situations, in
addition to considering public safety, firefighter safety,
resource damage, land management, environmental impacts,
and efficiency. See 163 F.3d at 596. The allocation of
resources was important in Miller only because in a multi-fire
situation, the “inevitable competition for resources” dictated
that the Fire Service exercise its discretion. 163 F.3d at 595.
Thus, I disagree with the majority’s suggestion that the dis-
cretionary function exception would necessarily apply if the
Forest Service had to “determine how to allocate personnel
during firefighting operations between contacting citizens and
directing firefighting activity” or “allocate its communications
resources between community-wide distribution and direct
contact with private citizens.” See Opinion at 1574.
We have repeatedly held that the discretionary function
exception does not apply to decisions based solely on the allo-
cation of scarce resources. See Terbush v. United States, 516
F.3d 1125, 1134 & n.4 (9th Cir. 2008) (our “case law frowns
upon the government relying solely on fiscal policy and bud-
getary constraints as the ‘protected’ policy considerations pro-
tected by the exception”); Whisnant v. United States, 400 F.3d
1177, 1184 (9th Cir. 2005) (“[W]e decline to permit the gov-
ernment to use the mere presence of budgetary concerns to
1
Indeed, in this case, there is no evidence in the record that the Forest
Service was unable to commit all of the necessary resources to fight the
Bullock Fire before it decided to light the backfire.
1578 GREEN v. UNITED STATES
shield allegedly negligent conduct from suit under the
FTCA”); O’Toole v. United States, 295 F.3d 1029, 1037 (9th
Cir. 2002) (stressing that the discretionary function exception
must be construed narrowly because “[e]very slip and fall,
every failure to warn, every inspection and maintenance deci-
sion can be couched in terms of policy choices based on allo-
cation of limited resources”). Even assuming that its decision
not to notify Appellants was based on the allocation of
resources, the government cannot claim that the discretionary
function exception applies to its actions in this case.
II.
My reservations about the majority’s analysis of Miller do
not detract from my agreement with the majority’s conclusion
that the failure to notify Appellants before and after the Forest
Service lit the backfire is not susceptible to a policy analysis
grounded in social, economic, or political concerns. We have
held that “[a] decision not to warn of a specific, known hazard
for which the acting agency is responsible is not the kind of
broader social, economic or political policy decision that the
discretionary function exception is intended to protect.” Sut-
ton v. Earles, 26 F.3d 903, 910 (9th Cir. 1994) (concluding
that the decision not to post speed limit due to agency-created
underwater hazard was not subject to the discretionary func-
tion exception); see also Oberson v. USDA, 514 F.3d 989, 998
(9th Cir. 2008) (holding that the agency was not protected by
the discretionary function exception when it raised the speed
limit on a snowmobile trail and then failed to warn of trail
conditions that would be hazardous at that speed); Boyd v.
United States, 881 F.2d 895, 897-98 (10th Cir. 1989) (holding
that the discretionary function exception does not apply to
failure to warn swimmers of the dangers posed by the govern-
ment’s zoning decision which permitted boats in a lake area).
Where the government creates a danger, it must warn the
public of that danger. To hold otherwise would unfairly allo-
cate “the entire burden” of government-created dangers to the
GREEN v. UNITED STATES 1579
individual, “leav[ing] him destitute or grievously harmed,”
and directly contravene the FTCA’s liberal purposes. Rayo-
nier Inc. v. United States, 352 U.S. 315, 320 (1957).
In sum, though I disagree with the majority’s apparent con-
clusion that Miller extends the discretionary function excep-
tion to all government decisions regarding how to fight a fire
because all such decisions involve the allocation of fire-
fighting resources, I agree with its holding that the govern-
ment’s decision not to warn Appellants of its decision to light
the backfire is not susceptible to a policy analysis. Thus, I
concur in the result.