Ohlsen v. United States

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 3, 2021

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

GERALD OHLSEN; JANET
YOUNGBERG; JAMES FARRINGTON;
THOMAS (TONY) DEROCHIE; CARYN
DEROCHIE; WILLIAM MCCLELLAN;
DONNA MCCLELLAN; NANCY
HIGGINS; VERNON COBB; BINDA
COBB; CHRISTINE WOOD; MARK
THOMPSON; DONALD GILES;
BONNIE LONG; THOMAS BRAGG;
DIANE BRAGG; ERNEST VIGIL;
FRIEDA VIGIL; BRAD WOSICK; Nos. 19-2124, 19-2129,
JOHNNY LUNA; DEANNE LUNA; 19-2130, 19-2163
MARLENE BARBER; MICHAEL
MCDANIEL; PAULA WILTGEN;
MARTIN VALENCIA; VESTED
INTEREST, LLC; JANICE
FARRINGTON; KEN KUGLER; DEBBIE
KUGLER; DAVID LEE; DIANE LEE;
JOSEPH LEE; ALICA LEE; ED
MORTENSEN; KATHERINE
MORTENSEN; DAVID COULTER;
MATT URBAN; MARIE URBAN;
OLYMPIA SALAS; MARY ANN SOLIS;
RENA SHEPHERD; BRETT MYRICK;
KAREN HERRERA; MICHAEL
MEDWIN; MICHAEL CHAVEZ;
MICHELLE CHAVEZ; RONALD
DOUGLASS; MANUEL URBAN, JR.;
ANTHONY FARRINGTON,

Plaintiffs - Appellants,

and

CATHERINE C. DE BACA; DAVID
LLOYD SAIS; LUCILLE SAIS; TOMAS
 APODACA; CHRISTINE APODACA;
JEFF SORROCHE,

Plaintiffs - Appellants,

and

STATE FARM FIRE & CASUALTY
COMPANY; SAFECO INSURANCE
COMPANY OF AMERICA; ALLSTATE
INSURANCE COMPANY,

Plaintiffs - Appellants,

and

ERNEST R. GREENE,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA; DOES
1-10,

Defendants - Appellees.
_________________________________

Appeals from the United States District Court
for the District of New Mexico
(D.C. Nos. 1:18-CV-00096-JB-KK, 1:17-CV-01161-JB-KK,
1:18-CV-00367-JB-KK, 1:19-CV-00237-JB-KK, 1:18-CV-00496-JB-KK)
_________________________________

Tom Tosdal of Tosdal Law Firm, Solana Beach, California (Jane B. Yohalem of Law
Office of Jane B. Yohalem, Santa Fe, New Mexico, on the briefs), for Plaintiffs-
Appellants.

Joshua Y. Dos Santos, Assistant United States Attorney (Joseph H. Hunt, Assistant
Attorney General; John C. Anderson, United States Attorney; Roberto D. Ortega,
Assistant United States Attorney; Ruth F. Keegan, Assistant United States Attorney;
Cassandra C. Currie, Assistant United States Attorney; Christopher F. Jeu, Assistant
United States Attorney; Mark B. Stern, Attorney, Appellate Staff Civil Division; Joshua

2
Revesz, Attorney, Appellate Staff Civil Division, on the brief), Washington, D.C., for
Defendants-Appellees.
_________________________________

Before PHILLIPS, Circuit Judge, LUCERO, Senior Circuit Judge, and CARSON,
Circuit Judge.
_________________________________

PHILLIPS, Circuit Judge.
_________________________________

In the summer of 2016, a large fire, later known as the Dog Head Fire,

engulfed Isleta Pueblo and United States Forest Service land in the Manzano

Mountains of New Mexico. By the time it was extinguished, the fire had burned

several thousand acres of land. The fire resulted from forest-thinning work performed

by Pueblo crewmembers under an agreement with the Forest Service. The partnership

to thin the forest arose after numerous fires had beset the surrounding areas.

Insurance companies and several owners of destroyed property (collectively,

“Appellants”) sued the government, alleging negligence under the Federal Tort

Claims Act (“FTCA”). Their negligence claims fell into two categories: the

government’s own negligence arising from acts of Forest Service employees, and the

government’s negligence arising from acts of the Pueblo crewmembers. The

government moved to dismiss, arguing that the court lacked jurisdiction and,

alternatively, for summary judgment on that same basis. The district court granted the

government summary judgment. First, the court concluded that the Pueblo

crewmembers had acted as independent contractors of the government, and thus, the

government wasn’t subject to FTCA liability based on the Pueblo crewmembers’

3
negligence. Additionally, the court barred these claims under the FTCA’s

administrative-exhaustion requirement. Second, the court barred Appellants’ claims

premised on the Forest Service employees’ own negligence, under the FTCA’s

discretionary-function exception.

On appeal, Appellants contend that the district court erred in ruling that the

FTCA jurisdictionally barred their claims. We disagree. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

BACKGROUND

I. Factual Background

A. The Agreement

In 2014, the United States Forest Service entered into a cooperative agreement

(the “Participating Agreement” or “Agreement”) with the Isleta Pueblo, a federally

recognized Indian tribe in New Mexico. The Agreement arose under the authority of

the Cooperative Funds and Deposits Act (“CFDA”), 16 U.S.C. § 565a-1 (1975). The

Agreement sought to accomplish the objectives of the Isleta Tribal Forest Protection

Act Project, namely, to “improve forest health, restore the area to more natural

conditions, and improve wildlife habitat” by “cutting and masticating trees.”

Appellants’ App. vol. 3 at 542. After discussing treatment plans for the area, the

parties entered into a contract, which included documents prescribing the

requirements for thinning and masticating the forest.

The Agreement covered land in the Manzano Mountains of New Mexico—an

area adjacent to Forest Service land that had recently suffered from several large-

4
scale fires. The land was divided into three geographic regions, with each region

being broken down into different treatment units.

Under the Agreement, the Pueblo had several responsibilities relating to on-

the-ground thinning operations. For example, the Pueblo was required to

“[c]ontribute personnel” and “manage the employees so that work [was] completed as

mutually agreed upon.” Id. at 543. The Pueblo was also responsible for

“establish[ing] and maintain[ing] a complete Quality Control Plan,” id. at 562, and

for “perform[ing] work to the Quality Assurance Requirements,” id. at 561. Further,

the Pueblo was responsible for training Pueblo employees, volunteers, and other

program participants in safety and the use of equipment. Of particular relevance here,

the Agreement established that no Pueblo “employees, volunteers, [or] program

participants” were to be deemed Federal employees “for any purposes,” including the

FTCA. Id. at 546. Rather, the Pueblo “agree[d] to assume [those] responsibilities.”

Id.

In turn, the Forest Service agreed to “reimburse the Pueblo for the U.S. Forest

Service’s share of actual expenses incurred”; “[d]esignate work areas and provide

cutting guidelines for achieving desired condition[s]”; and “[i]nspect the work to

provide feedback on how goals [were] being accomplished.” Id. at 543–44.

The Agreement also detailed the way that thinning and mastication would

occur. For instance, the Forest Service set completion deadlines for the Pueblo to

finish each project. From this, the Pueblo could schedule its start and end dates for

each project, so long as the crew started work within ten days of receiving notice

5
from the Forest Service to proceed. The Forest Service also managed the Pueblo

crewmembers’ schedule through its required daily quotas for thinning, slashing, and

masticating.

In regard to cutting the trees, Forest Service employees flagged or painted the

boundary areas of each treatment site so that the crewmembers would know where to

work, sometimes even marking individual trees for the Pueblo to remove. Though the

Pueblo had discretion in selecting which other trees to cut, the crew was required to

follow the Forest Service’s detailed directives. These included leaving

“approximately 75-80 trees per acre in a randomly distributed pattern,” keeping all

trees with a trunk diameter at breast height greater than sixteen inches, and

maintaining the same composite percentage of the tree varieties. Id. at 551–52. After

cutting the trees, the crews were to “lop and scatter” the limbs and the tops of the

fallen trees—creating what is known in the industry as “slash.” Id. at 551.1 Because

significant amounts of slash can create a fire hazard, the Agreement prohibited the

Pueblo from allowing the slash to pile higher than eighteen inches. Ultimately, the

Pueblo was responsible for “monitor[ing] the performance of the agreement activities

to ensure that performance goals [were] being achieved.” Id. vol. 1 at 124.

1
Slash refers to the discarded vegetation left over from the thinning and
mastication process. See Appellants’ App. vol. 3 at 688 (describing slash as
“vegetative material including . . . cull logs, blasted or pushed-out stumps, chunks,
broken tops, limbs, branches, rotten wood, [or] damaged brush . . . which is created
or disturbed as a result of Partner’s operations, including construction of temporary
roads and landings, or other improvements under this agreement”).
6
 Typically, the Forest Service’s Project Administrator, Aaron Johnson, met

twice weekly with the Pueblo’s Project Contact, Frank Jiron, to discuss where in the

forest to work as well as the progress and quality of the work. Johnson or the Forest

Service’s independent inspector—Francisco Lueras—would sometimes deem the

Pueblo crewmembers’ work as unacceptable. In these cases, the Pueblo crew would

rework the units.

Johnson stated that he was responsible for “ensur[ing] that the specifications in

the partnership agreement were met by the on-site cooperators.” Id. vol. 2 at 333. As

the Pueblo Contact, Jiron was on-site about seventy-five percent of the time,

markedly more than Johnson, whom Pueblo crewmembers “[r]arely” saw. Id. vol. 3

at 723. Johnson did state that he visited the units “many” times, but he primarily

communicated with Jiron, who then communicated with the rest of the Pueblo crew.

Id. vol. 1 at 156.

Regarding safety, the Pueblo was to “prepare and submit a safety plan to

provide for worker and public safety.” Id. vol. 3 at 562. The Pueblo was responsible

for supplying the crews with emergency equipment, including fire extinguishers and

water-filled tanks. In the event of a fire, the Pueblo was to close areas of the forest

and restrict thinning operations as required by the Agreement’s Fire Precaution

Schedule. And under the Agreement, the Pueblo acknowledged that it “may be held

liable for all damages and for all costs incurred by the Government for labor,

subsistence, equipment, supplies, and transportation deemed necessary to control or

7
suppress a fire set or caused by the [Pueblo] or the [Pueblo]’s agents or employees.”

Id. at 703.

B. Unit 4 and the Fire

The Agreement was in effect in the summer of 2016 when the Dog Head Fire

began. The fire started in Unit 4 of the project, an area considered a “high priority

treatment area” because it created an important firebreak2 between Forest Service and

Pueblo lands. Id. vol. 1 at 198. Accordingly, there was a sense of urgency in

completing the treatment there. Originally, the Agreement instructed the Pueblo

crewmembers to leave the Unit 4 slash on the ground for the public to collect as

firewood. But by 2015, the public hadn’t gathered the slash at the expected rate. So

the Forest Service had to consider alternatives to address it. After ruling out two

options—(1) burning the material or (2) letting it naturally decay—as harmful to

wildlife and vegetation, the Forest Service settled on masticating it.

By masticating the material, the Forest Service “redistribute[d] the slash into

variable sizes to decrease the risk of wildfire.” Id. at 199. In 2014, during Johnson’s

last inspection of Unit 4 before the fire, he noted that the unit complied with the

eighteen-inch maximum slash limit. Yet by 2016, when the fire started, the slash had

accumulated beyond the 2014 and 2015 levels. By 2016, the slash in Unit 4 was

“waist high,” id. vol. 2 at 353, and had become “very dry” because it had “cured for a

long time,” id. at 510.

2
A firebreak is a gap in debris or vegetation that creates a barrier to slow or
stop the spread of wildfire.
8
 June 14, 2016 was a hot summer day. The weather presented a “high potential

for fire growth.” Id. vol. 5 at 1272. Still, when Pueblo crewmembers went to

masticate Unit 4 that day, there were no fire restrictions in place, and the water trucks

were parked at the ranger station about an hour from the site. While one crewmember

worked with the masticator, two other crewmembers stood about 600 yards away

near their service truck. The truck contained a shovel and an axe, but no water. No

Forest Service employees were in Unit 4 at that time.

The fire started after the masticator struck a rock, caused a spark, and ignited

the surrounding brush.3 When the masticator operator first noticed the fire, it was

within a four-foot square, but he thought he couldn’t safely extinguish it. So he

instead radioed his supervisor for help. The fire raged for about three months,

burning 17,912 acres and destroying twelve residences and forty-four other

structures.

II. Procedural Background

In accordance with the FTCA, 28 U.S.C. §§ 1346, 2671–2680, Appellants filed

administrative claims with the United States Department of Agriculture, alleging that

the government had acted negligently in its conduct leading up to the Dog Head

3
Forest Service employees later investigated the fire’s cause and saw that
several of the metal teeth on the masticator—necessary to grind the trees and the
slash—were chipped.

9
Fire.4 See id. § 2675(a). After the Agency rejected their administrative claims,

Appellants sued the government in the United States District Court of New Mexico.

In their Complaints, Appellants alleged two categories of government negligence.

First, they alleged that the government was liable based on the Forest Service

employees’ negligence in failing to properly supervise the Pueblo crewmembers and

in making other decisions that worsened the fire. For instance, they alleged that the

Forest Service had negligently allowed slash to accumulate and that it had failed to

require fire equipment near the mastication site or to implement fire restrictions.

Second, Appellants asserted government liability based on the Pueblo crewmembers’

negligence in failing to maintain the proper slash depth, failing to have fire

equipment near the masticator, and failing to implement a fire-safety plan. Notably,

Appellants didn’t sue the Pueblo directly.5

4
Several individual plaintiffs to this suit filed administrative claims, three of
which alleged as follows: “As a result of negligent operation of equipment, and/or
negligence in commencing fire suppression activity, the Dog[] Head Fire commenced
and spread.” E.g., Appellants’ App. vol. 2 at 287. They also attached a government
report and a media report to their administrative claims, which outlined a high-level
overview of the events in question. Another plaintiff provided a more in-depth
administrative claim, but only generally referred to negligence arising from a failure
to supervise.
5
Bringing suit against the Pueblo presents challenges of its own because the
Pueblo is a sovereign nation. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S.
751, 754 (1998) (“As a matter of federal law, an Indian tribe is subject to suit only
where Congress has authorized the suit or the tribe has waived its immunity.”
(citations omitted)).

10
 The government filed a motion to dismiss and for summary judgment on

grounds that the FTCA provided no jurisdiction for the claims. It argued that two

FTCA exceptions barred the claims against the government based on the Pueblo

crewmembers’ negligence: (1) the independent-contractor exception, and (2) the

administrative-exhaustion requirement. Similarly, the government argued that the

FTCA’s discretionary-function exception barred the claims against the government

based on the Forest Service’s own negligence. Therefore, it argued that the district

court lacked subject-matter jurisdiction under the FTCA to hear the Complaints’

claims.

In a comprehensive order, the district court agreed.6 The court noted that the

FTCA applies only to the negligence of federal employees—not of independent

contractors. On that point, the court concluded that the Pueblo crewmembers had

acted as independent contractors of the Forest Service. To start, the court ruled that

the CFDA, by itself, didn’t transform the Pueblo crew into federal employees for

purposes of governmental tort liability. With that in mind, the court applied the

factors in Lilly v. Fieldstone, 876 F.2d 857 (10th Cir. 1989), to evaluate whether the

Pueblo crewmembers had acted as government employees or independent

contractors. The court focused on the first factor, the parties’ intent. There, the court

examined the parties’ highly detailed Agreement and their conduct under that

6
The district court converted the government’s claims relating to the
independent-contractor exception and the discretionary-function exception from a
motion to dismiss to a motion for summary judgment. The parties don’t dispute this
conversion so we consider our analysis under the framework of summary judgment.
11
Agreement, including the Forest Service’s lack of daily supervision. After doing so,

the court concluded that the Pueblo crewmembers had acted as independent

contractors. In the alternative, the court concluded that Appellants’ claims based on

the Pueblo crewmembers’ negligence would have been administratively barred for

failing to meet the FTCA’s notice requirement. See 28 U.S.C. § 2675(a).

Finally, the court concluded that the discretionary-function exception to the

FTCA barred the claims against the government based on the Forest Service

employees’ own negligence in allegedly failing to supervise the Pueblo and in failing

to make proper fire-suppression decisions. The court determined that because the

Forest Service had discretion in deciding whether to “delegate the responsibility of

complying with the maximum slash depth” and whether to prevent and suppress fires,

the government couldn’t be held liable. Appellants’ App. vol. 7 at 1764. It also

determined that the FTCA excepted liability for all of the Complaints’ claims and

granted the government’s motion.

DISCUSSION

Appellants argue that the district court mistakenly concluded that it lacked

jurisdiction under the FTCA and erred in three of its conclusions: (1) that the Pueblo

crewmembers were independent contractors; (2) that the discretionary-function

exception barred the claims in the Complaint based on the Forest Service employees’

own alleged negligence; and (3) that Appellants failed to administratively exhaust

their claims against the government relating to the Pueblo’s negligence.

12
 We review de novo the district court’s grant of summary judgment, applying

the same standard as the district court. Gross v. Hale-Halsell Co., 554 F.3d 870, 875

(10th Cir. 2009) (citation omitted). In doing so, “we examine the record and all

reasonable inferences that might be drawn from it in the light most favorable to the

non-moving party.” Id. (citation and brackets omitted). To prevail on summary

judgment, a movant must show that “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Our duty is “not [] to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Birch v. Polaris Indus., Inc.,

812 F.3d 1238, 1251 (10th Cir. 2015) (alteration in original) (citation omitted).

I. FTCA Standard

Under the FTCA, Congress granted a “limited waiver of sovereign immunity”

by “making the Federal Government liable to the same extent as a private party for

certain torts of federal employees.” United States v. Orleans, 425 U.S. 807, 813

(1976). Liability may arise for injuries

caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

But the FTCA carves out several important exceptions. And “[w]hen an

exception applies, sovereign immunity remains, and federal courts lack jurisdiction.”

Garling v. U.S. Env’t Prot. Agency, 849 F.3d 1289, 1294 (10th Cir. 2017) (citations

13
omitted). First, the FTCA imposes liability only when a federal employee is

negligent. 28 U.S.C. § 1346(b)(1). A federal employee includes “officers or

employees of any federal agency” but excludes “any contractor with the United

States.” Id. § 2671. Put another way, the government can’t be liable under the FTCA

for the negligence of its independent contractors. See id. § 1346(b)(1). Second, the

FTCA is inapplicable to discretionary acts. Id. § 2680(a). Under this exception, the

government avoids liability for “[a]ny claim based upon . . . the exercise or

performance or the failure to exercise or perform a discretionary function or duty on

the part of a federal agency or an employee of the Government, whether or not the

discretion involved be abused.” Id. Third, the FTCA’s exhaustion requirement

mandates that a claimant must “first present[] the claim to the appropriate Federal

agency” before bringing an action in court. Id. § 2675(a).

Before beginning our analysis, we note three guiding principles: (1) that a

“waiver of sovereign immunity must be strictly construed, in terms of its scope, in

favor of the sovereign,” Sossamon v. Texas, 563 U.S. 277, 292 (2011) (internal

quotation marks and citation omitted); (2) that “[e]xceptions to the FTCA are to be

narrowly construed,” Miller v. United States, 710 F.2d 656, 662 (10th Cir. 1983)

(citations omitted); and (3) that the party suing the government bears the burden to

prove a waiver of sovereign immunity, James v. United States, 970 F.2d 750, 753

(10th Cir. 1992) (citation omitted).

Appellants urge us to conclude that the FTCA exceptions don’t apply to their

claims and that the government has waived its sovereign immunity. We cannot do so.

14
II. Administrative Exhaustion

Before suing, Appellants filed administrative claims with the United States

Department of Agriculture. See 28 U.S.C. § 2675(a). To sue under the FTCA, an

administrative claim must first “be denied by the agency either in writing or by

failure to make a final disposition within six months of filing.” Lurch v. United

States, 719 F.2d 333, 335 n.3 (10th Cir. 1983) (citation omitted). Here, the Agency

effectively denied Appellants’ administrative claims by failing to make a final

disposition within six months.

After the Agency rejected their administrative claims, Appellants filed suit in

federal district court. The court disallowed all the Complaints’ claims against the

government based on the Pueblo’s negligence, concluding that Appellants had failed

to properly exhaust their administrative remedies. See 28 U.S.C. § 2675(a).

Notwithstanding Appellants’ assertion of their administrative claims with the

Agency, the district court determined that they had nonetheless failed to adequately

notify the government that their claims hinged on the Pueblo’s negligence. See id.

Appellants’ challenge this conclusion on appeal.

Though we note that courts interpret the administrative requirement flexibly,

see Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 853 (10th Cir.

2005) (citation omitted), we needn’t reach this issue because we conclude that the

FTCA’s independent-contractor exception otherwise bars those claims against the

government premised on the Pueblo crewmembers’ negligence.

15
III. The Independent-Contractor Exception

Because “the FTCA does not authorize suits based on the acts of independent

contractors or their employees,” Tsosie v. United States, 452 F.3d 1161, 1163 (10th

Cir. 2006) (citation omitted), we must determine whether the Pueblo crewmembers

acted as independent contractors for the Forest Service, or instead as federal

employees. We conclude that they acted as independent contractors for three reasons.

First, we reject Appellants’ position that the CFDA itself establishes that the Pueblo

crewmembers are federal employees for purposes of the FTCA. Second, despite

Appellants’ contrary argument that the CFDA changes our traditional analysis, we

apply our circuit’s Lilly test to resolve this question. Third, after applying the Lilly

factors, we agree with the district court that the Pueblo crewmembers were

independent contractors. Accordingly, we conclude that the FTCA’s independent-

contractor exception bars Appellants’ claims against the government based on the

Pueblo crewmembers’ alleged negligence.

A. Employment Status Under the CFDA

Appellants argue that an agreement under the CFDA allowing the Forest

Service to supervise the work of a cooperator (here, the Pueblo) necessarily requires

a finding that the cooperator’s employees are federal employees for purposes of the

FTCA’s waiver of immunity. As mentioned, the district court rejected Appellants’

interpretation of the CFDA. Instead, in applying the Lilly factors and considering the

Agreement and the parties’ conduct under the Agreement, the court concluded that

16
the Pueblo crewmembers had acted as the Forest Service’s independent contractors.

We agree.

We begin by recognizing that the CFDA allows the Secretary of Agriculture to

enter into cooperative agreements with “public or private agencies, organizations,

institutions, or persons.” 16 U.S.C. § 565a-1. This statute further allows the Forest

Service to contract with cooperators to “perform forestry protection, including fire

protection, timber stand improvement, debris removal, and thinning of trees.” Id.

Notably, the CFDA provides that “cooperators and their employees may perform

cooperative work under supervision of the Forest Service in emergencies or

otherwise as mutually agreed to, but shall not be deemed to be Federal employees

other than for the purposes of [the FTCA] and [the Federal Employees Compensation

Act].” Id. § 565a-2.

Appellants interpret this language to require that cooperators supervised by the

Forest Service be considered federal employees under the FTCA. In their words,

“when the parties agree that the cooperative work will be done ‘under the supervision

of the Forest Service,’ the cooperator and its employees will be deemed to be federal

employees for purposes of coverage under the FTCA.” Appellants’ Opening Br. at 25

(emphasis added). We disagree.

In interpreting a statute, we seek to “ascertain the congressional intent and

give effect to the legislative will.” Ribas v. Mukasey, 545 F.3d 922, 929 (10th Cir.

2008) (citation omitted). In doing so, we use “traditional tools of statutory

construction.” United States v. Manning, 526 F.3d 611, 614 (10th Cir. 2008) (citation

17
omitted). We begin with the statute’s plain language, In re Taylor, 899 F.3d 1126,

1129 (10th Cir. 2018) (citation omitted), because “[i]t is a well established law of

statutory construction that, absent ambiguity or irrational result, the literal language

of a statute controls,” Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986)

(citation omitted).

Here, we encounter an issue of first impression. The parties have cited no

cases, and we have found none, analyzing what effect the CFDA has on the question

whether cooperators are federal employees under the FTCA. We conclude that the

CFDA simply permits the government and cooperators to agree that the cooperators’

employees shall be deemed federal employees under the FTCA, but it doesn’t

mandate it. In other words, though the CFDA excludes cooperators from ever being

deemed federal employees outside of the FTCA and the Federal Employees

Compensation Act, it doesn’t automatically include cooperators as federal employees

in either instance. The district court put it this way: “Although the CFDA

contemplates cooperative agreements that provide for Forest Service

supervision, . . . [this] does not shed light on the Forest Service’s and Isleta Pueblo’s

intents.” Appellants’ App. vol. 7 at 1707–08 (internal citation omitted).

We conclude that Congress didn’t intend to displace the traditional analysis for

distinguishing employees from independent contractors in the realm of cooperative

agreements. Indeed, the “Tort Claims Act was never intended, and has not been

construed by this Court, to reach employees or agents of all federally funded

programs that confer benefits on people.” Orleans, 425 U.S. at 813. We read the

18
statute’s plain language as saying that parties to Agreements under the CFDA can

negotiate independent-contractor status. See Manning, 526 F.3d at 614 (“If the

statutory language is clear, our analysis ordinarily ends.” (citations omitted)).

B. The Traditional Lilly Test Applies

Thus, we turn our attention to whether the parties agreed that the Pueblo crews

were federal employees for purposes of the FTCA. The parties dispute what test

governs this issue. Appellants contend that the Pueblo’s status as a cooperator under

the CFDA bears on the analysis. They argue that the standard from Logue v. United

States, 412 U.S. 521 (1973) controls, disassociating it from Lilly and its seven

factors. Appellants point out that Logue’s supervision or control test was in force in

1975 when the CFDA was enacted. In deciding the employee-versus-independent-

contractor question, Logue relied on the common-law rule, which considers whether

the employer has the right to control the details of the other’s work. Logue, 412 U.S.

at 531 (“[W]e are not persuaded that employees of a contractor with the Government,

whose physical performance is not subject to governmental supervision, are to be

treated as [federal employees].”) Appellants argue that this test is more in line with

the “supervision” language in the CFDA than is Lilly’s seven-factor test.

On the other hand, the government argues that the Pueblo’s status as a

cooperator under the CFDA makes no difference because, either way, the traditional

employment test applies. The government contends that the Lilly test expounds on the

Logue test and applies here.

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 In Lilly, our court was fully aware of Logue and its concern for who

“control[s] the detailed physical performance of the contractor.” Lilly, 876 F.2d at

858 (quoting Logue, 412 U.S. at 528). Addressing that concern, Lilly outlines seven

factors to use in that determination. Id. at 859 (citation omitted). Two important

factors now at issue are (1) the parties’ intent and (2) whether the government

controls the end result only, or whether it also controls the “manner and method of

reaching the result.” Id. (citation omitted).

We apply Lilly, which in turn implements Logue.7 We reject Appellants’ view

that the two cases present rival tests—one in Logue for determining the employment

status of cooperators under the CFDA and one in Lilly for determining employment

status in other circumstances. See Appellants’ Opening Br. at 26 (“Replacing the

clear language of the CFDA, which refers solely to supervision by the Forest Service,

with the list of seven Lilly factors is inconsistent with the plain language of the

statute and with Congressional intent.”). Lilly enforces Logue. See Lilly, 876 F.2d at

858 (citing Logue favorably). Indeed, this court has noted that “[w]e have searched

without success among the numerous state and federal cases . . . to find interpretive

authority more helpful than Lurch and [Lilly] in the light of Orleans and Logue.”

Bird v. United States, 949 F.2d 1079, 1084 (10th Cir. 1991).

7
To the extent that Appellants ask us to overrule Lilly as having misapplied
Logue, their argument must fail at this stage of review. “We are bound by the
precedent of prior panels absent en banc reconsideration or a superseding contrary
decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per
curiam) (citations omitted).
20
 C. The Lilly Factors

In distinguishing between employees and independent contractors, we consider

the government’s ability “to control the detailed physical performance of the

contractor.” Logue, 412 U.S. at 528 (citations omitted). The key inquiry is “whether

the Government supervises the day-to-day operations of the individual.” Lilly, 876

F.2d at 858 (quoting Lurch, 719 F.2d at 337).8 We consider seven factors:

(1) [T]he intent of the parties; (2) whether the United States controls only
the end result or may also control the manner and method of reaching the
result; (3) whether the person uses her own equipment or that of the
United States; (4) who provides liability insurance; (5) who pays social
security tax; (6) whether federal regulations prohibit federal employees
from performing such contracts; and (7) whether the individual has
authority to subcontract to others.

Id. at 859 (citation omitted).

1. The Parties’ Intent

First, we consider the parties’ intent. An agreement and the parties’

performance under that agreement ordinarily manifest the parties’ intent. We have

previously found that parties intended an independent-contractor relationship when

their contract “expressly stipulated” that certain medical personnel “shall not be

considered . . . employees for any purpose.” Lurch, 719 F.2d at 338 (citation

8
See 1 Civil Actions Against the United States, Its Agencies, Officers and
Employees § 2:18 (2021) (“The key inquiry under this test is whether the government
supervises the day-to-day operations of the individual worker. When a supervisory
authority has no detailed control, on the other hand, the worker is considered to be an
independent contractor.” (footnotes omitted)).
21
omitted). “Because of that contract . . . and the working arrangement under it,” we

concluded that the independent contractor exception applied. Id.

Here, the language of the Agreement is equally clear: “The Pueblo agree(s)

that any of their employees, volunteers, and program participants shall not be deemed

to be Federal employees for any purposes including Chapter 171 of Title 28, United

States Code (Federal Torts Claim Act).” Appellants’ App. vol. 3 at 546 (emphasis

added). And we have ruled that “[w]here there is a contract between the government

and the [plaintiff], clear language regarding government control or ‘federal

employee’ status can often prevail over facts that might otherwise support a finding

of ‘day-to-day control.’” Woodruff v. Covington, 389 F.3d 1117, 1127 (10th Cir.

2004). The provision here evinces a strong intent that the Pueblo crewmembers acted

as independent contractors. See Tsosie, 452 F.3d at 1164 (determining the parties’

intent based in part on their agreement that a doctor render his services “in his

capacity as an independent contractor”).

Other provisions in the Agreement are consistent with the parties’ expressed

intent. For example, the Agreement required the Pueblo to manage and train its

crews, and it required that the Forest Service inspect the results of that work. In

addition, the Agreement describes the Pueblo as a contractor. See, e.g., Appellants’

App. vol. 1 at 142 (stating that if the crew’s performance failed to meet the agreed

upon standards, the area would be “[r]ework[ed] at contractor’s expense” (emphasis

22
added)).9 Thus, the district court had ample basis to conclude that the parties intended

an independent-contractor relationship. Therefore, we conclude that the first Lilly

factor indicates an independent-contractor relationship.

2. The Government’s Control

The second Lilly factor also supports the Pueblo crewmembers’ status as

independent contractors. Under this factor, we consider whether the government

controls the end result only, or whether it controls “the manner and method of

reaching the result.” Lilly, 876 F.2d at 859 (citation omitted). Primarily, we consider

“whether the Government supervise[d] the day-to-day operations” of the Pueblo.

Lurch, 719 F.2d at 337 (citation omitted). The record establishes that it did not.

Appellants contend that the detailed Agreement establishes the government’s

right to control the details of the Pueblo crewmembers’ work, in turn establishing an

employer-employee relationship. Yet “detailed regulations and inspections are not in

and of themselves evidence of an employer-employee relationship.” Curry, 97 F.3d at

415 (citation omitted); see also 1 Civil Actions Against the United States, Its

Agencies, Officers and Employees § 2:18 (2021) (“The government may exercise

control over factors assuring contract compliance or safety without exercising the

day-to-day supervision which would make the contractor a government

9
Though the Agreement also refers to “employees,” we read it as referring to
the Pueblo’s employees, not the Forest Service’s. See, e.g., Appellants’ App. vol. 1 at
125 (stating that an executive order banned texting and driving among “Federal
employees,” but that “cooperators, their employees, volunteers, and contractors”
were encouraged to adopt this policy as well).
23
employee . . . . Thus, the federal government may reserve the right to inspect an

independent contractor’s work without assuming control of day-to-day operations.”

(footnotes omitted)). Indeed, in some instances, a detailed contract points the other

way. See Norton v. Murphy, 661 F.2d 882, 884 (10th Cir. 1981) (“[T]he very length

and detail of the contract . . . suggests, to us, an independent contractor relationship

between the parties. To us it is doubtful that a master-servant relationship, where the

master tells the servant what to do and when to do it, would require a contract of the

type here involved.”).

Previously, we have concluded that an individual was an independent

contractor for the Forest Service despite a “detailed contract” describing “exactly

what the job entailed” and precise specifications outlining the requirements for

performance. Curry, 97 F.3d at 413. In Curry, for example, we concluded that the

Forest Service had acted only as a “general supervisory authority” by monitoring his

job performance without telling him “how or when to do his work” or “whom to hire

or how to operate his equipment.” Id. at 414.

So too here. Surely the government exercised control over the results of the

Pueblo’s thinning work by requiring the Pueblo to meet daily quotas, establishing

starting and ending times for the Pueblo’s work, specifying the size and types of trees

to be cut, and marking specific trees for removal. But even taken together, this

control doesn’t result in an employer-employee relationship, particularly when

balanced against the control retained by the Pueblo to “manage,” “supervise,” and

“direct the work of its employees, volunteers, and [other program] participants,”

24
Appellants’ App. vol. 3 at 543, 546, as well as its duty to “establish and maintain a

complete Quality Control Plan . . . to ensure the requirements of the agreement

[were] provided as specified,” id. at 562.

We acknowledge that Johnson, the Forest Service’s main point of contact, met

bi-weekly with Jiron, the Pueblo’s main point of contact, to discuss the progress and

quality of work. But Johnson typically issued orders through Jiron, not directly to the

Pueblo crewmembers. In fact, Pueblo crewmembers testified that they “[r]arely” saw

Johnson on-site, yet Jiron was on-site about seventy-five percent of the time. Id. at

723. And Johnson didn’t tell the Pueblo crewmembers “when and where to go and

what to do.” Curry, 97 F.3d at 415 (quoting United States v. Becker, 378 F.2d 319,

322–323 (9th Cir. 1967)). Instead, the Forest Service controlled the Pueblo only to

the “extent necessary to ensure that the desired results were achieved.” Id.; see also

Duplan v. Harper, 188 F.3d 1195, 1201 (10th Cir. 1999) (“[T]he government’s

ability to require that [contractors] meet minimum qualifications and to conduct

reviews of the [contractors’] performance amounts to nothing more than a standard

quality assurance [provision] by which the government reserves the right to

determine whether it is satisfied with the services it is purchasing under the contract.”

(fourth alteration in original) (internal quotation marks and citations omitted)).

Nor are we persuaded by Appellants’ argument comparing this case to

Patterson & Wilder Construction Co. v. United States, 226 F.3d 1269 (11th Cir.

2000). There, our sister circuit determined that a group of pilots qualified as federal

employees for FTCA purposes when “the Government decided, and instructed the

25
pilots on, virtually every important aspect of the aircraft’s intended use,” as well as

“actively supervised and dictated many if not most of the significant day-to-day

activities.” Id. at 1275. The same cannot equally be said here, where the district court

noted that the “evidence is not such that it shows Johnson managing the day-to-day

thinning operations—when they begin[], when they end, [and] how the thinning crew

masticates.” Appellants’ App. vol. 7 at 1731. Rather, as in Curry, the evidence shows

that the Forest Service “supervisors came to the thinning site and directed the

thinning crew how to achieve the project’s goals.” Id. (citing Curry, 97 F.3d at 415)

(footnote omitted). Thus, the second Lilly factor also supports an independent-

contractor relationship.

3. Other Lilly Factors

We needn’t address the remaining Lilly factors. Appellants don’t argue them,

and they acknowledge that the Pueblo crewmembers are independent contractors if

we apply the Lilly test.10 Because Appellants present no argument as to the remaining

five factors, we conclude that the first two Lilly factors are dispositive. See Curry, 97

F.3d at 415 (relying primarily on the parties’ contract and the government’s control

in concluding that an independent-contractor relationship existed). Accordingly, we

10
At oral argument, in response to a panel member’s questioning whether “it is
appropriate for us to look at the traditional benefits and coverage of the respective
governmental programs for employees, such as health insurance, eligibility for
federal retirement benefits, or for other benefits that traditional employees of the
Forest Service might have,” Appellants’ counsel responded, “I think not.” Oral
Argument at 0:55–1:28. Responding to the panel member’s further questioning about
whether Appellants would “utterly fail on that type of a test,” Appellants’ counsel
answered affirmatively: “[We] would, Your Honor . . . .” Id. at 1:45–1:52.
26
determine that “the contractual arrangement itself and its application placed [the

Pueblo] outside the parameters of an employer-employee relationship with the

Government.” See Lurch, 719 F.2d at 338 (citation omitted). Therefore, the

government can’t be liable under the FTCA for the negligence of the Pueblo

crewmembers. See 28 U.S.C. § 1346(b)(1).

IV. The Discretionary-Function Exception

Appellants also pursue FTCA claims against the government based on the

Forest Service employees’ own alleged negligence in failing to supervise the Pueblo

crewmembers’ work. They argue that the discretionary-function exception doesn’t

extend to two categories of Forest Service decisions: (1) its decision to allow slash to

accumulate beyond the eighteen-inch limit, and (2) its decisions regarding fire

suppression, namely, not to post a fire guard or truck at the mastication site and not

to impose fire restrictions on the day of the fire. The district court concluded that all

claims against the Forest Service relevant to this appeal were barred under the

discretionary-function exception because Appellants had “identified no mandatory

requirements governing the Forest Service’s actions.” Appellants’ App. vol. 7 at

1755. We agree.

The discretionary-function exception to the FTCA excludes the government

from liability for “[a]ny claim . . . based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not the discretion involved be

abused.” 28 U.S.C. § 2680(a). Put simply, “if a government official in performing his

27
statutory duties must act without reliance upon a fixed or readily ascertainable

standard, the decision he makes is discretionary and within the [discretionary-

function exception]. Conversely if there is a standard by which his action is

measured, it is not within the exception.” Miller, 710 F.2d at 663 (alteration in

original) (citation omitted). The Supreme Court has explained that this exception

“marks the boundary between Congress’ willingness to impose tort liability upon the

United States and its desire to protect certain governmental activities from exposure

to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). “This ‘discretionary function

exception poses a jurisdictional prerequisite to suit, which the plaintiff must

ultimately meet as part of his overall burden to establish subject matter jurisdiction.’”

Garcia v. U.S. Air Force, 533 F.3d 1170, 1175 (10th Cir. 2008) (citation omitted).

To avoid application of this exception, Appellants must satisfy the two-prong

test outlined in Berkovitz v. United States, 486 U.S. 531 (1988). First, we consider

“whether the action is a matter of choice for the acting employee.” Id. at 536. “The

requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or

policy specifically prescribes a course of action for an employee to follow,’ because

‘the employee has no rightful option but to adhere to the directive.’” United States v.

Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz, 486 U.S. at 536).

Second, if we determine that there is a matter of choice or judgment, we must

determine “whether that judgment is of the kind that the discretionary function

exception was designed to shield.” Berkovitz, 486 U.S. at 536. This “prevent[s]

28
judicial second-guessing of legislative and administrative decisions grounded in

social, economic, and political policy.” Gaubert, 499 U.S. at 323 (internal quotation

marks and citation omitted); see also Harrell v. United States, 443 F.3d 1231, 1235–

36 (10th Cir. 2006) (“[T]he court must consider whether the nature of the actions

taken implicate public policy concerns, or are susceptible to policy analysis.”

(internal quotation marks and citation omitted)). That is, “we do not inquire into the

intent of the government supervisor when making a specific personnel decision, and

neither do we ask whether policy analysis is the actual reason for the decision in

question.” Sydnes v. United States, 523 F.3d 1179, 1185 (10th Cir. 2008) (internal

quotation marks and citations omitted). Both prongs must be met for the exception to

apply. Id. at 1183. Because Appellants have met neither prong, they have failed to

meet their burden.

A. Slash

Appellants contend that the government had a nondiscretionary obligation to

enforce the agreed-on eighteen-inch slash depth limit in Unit 4. They argue that the

Forest Service eliminated any discretion concerning a slash-height limit by adopting

this policy in the Agreement. After that, Appellants contend that the government

couldn’t disregard the slash-height limit as a discretionary function, because “a

policy choice [was] already made.” Appellants’ Opening Br. at 47. Once the Forest

Service imposed the slash-height limit, Appellants argue, it was committed to inspect

the work for compliance.

29
 At the outset, we note that the Agreement imposed a slash limit on the

Pueblo—not on the Forest Service. The Agreement states: the “[Pueblo] WILL be

required to lop and scatter the limbs and tops up to 3 [inch] Diameter tops of felled

trees. Maximum slash depth will be 18 [inches].” Appellants’ App. vol. 3 at 556

(emphasis added). What’s more, the Agreement required the Pueblo to “manage the

employees so that work [was] completed as mutually agreed upon to the

specifications,” id. at 543, and to “establish and maintain a complete Quality Control

Plan . . . to ensure the requirements of the agreement [were] provided as specified,”

id. at 562. Because of this, any negligence claims arising from the slash height were

attributable to the Pueblo—not the Forest Service. And even if the slash height was

attributable instead to the Forest Service, the claims would still fail under the

FTCA’s discretionary-function exception.

Under the first Berkovitz prong, the Forest Service’s decisions about ensuring

compliance with the slash depth was “a matter of choice for the acting employee.”

Berkovitz, 486 U.S. at 536. True, Johnson had inspected Unit 4 for compliance, and

the Agreement states that the Forest Service was to “[i]nspect the work to provide

feedback on how goals [were] being accomplished.” Appellants’ App. vol. 3 at 544.

But the directive to “inspect” the Pueblo’s work was “too general to remove the

discretion” from the government’s conduct in determining how or when to inspect the

Pueblo’s work. Tippett v. United States, 108 F.3d 1194, 1197 (10th Cir. 1997).

Because “[n]o statute, regulation, or policy specifically prescribe[d] a course of

action” for the Forest Service to follow in inspecting the Pueblo’s work, these

30
decisions were “truly the product of the [Forest] Service’s independent judgment.”

Johnson v. U.S. Dep’t of Interior, 949 F.2d 332, 337 (10th Cir. 1991); see also Varig

Airlines, 467 U.S. at 804, 811 (noting that the government can both impose

regulations concerning inspections and simultaneously prescribe “the manner in

which such inspections should be made” according to its own judgment (citations

omitted)). Thus, the Forest Service’s “refusal to regulate more closely the daily

operations” of the Pueblo “was entirely in its discretion.” Estate of Harshman v.

Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1166 (10th Cir. 2004).

Under the second Berkovitz prong, decisions about “the amount of government

oversight over the daily operations” of an independent contractor’s work are a

“matter of public policy” because they require “balancing use of federal lands with

the appropriate degree of governmental interference in that use.” Id. (citation

omitted). And questioning the government’s implementation of an inspection

program in the absence of specific directives has been held to unfairly “require the

courts to ‘second-guess’ the political, social, and economic judgments of an agency

exercising its regulatory function,” which is “precisely [the] sort of judicial

intervention in policymaking that the discretionary function exception was designed

to prevent.” Varig Airlines, 467 U.S. at 820. We accordingly determine that the

district court rightfully granted summary judgment on the claims asserting the Forest

Service’s negligence in addressing the slash.

31
 B. Fire Suppression

Appellants also contend that the discretionary-function exception doesn’t

apply to the government’s decisions regarding fire suppression. First, Appellants

argue that despite mandatory requirements, the government failed to post a fire guard

and a water truck at or near the Unit 4 mastication site on the day of the fire.

Appellants point to a provision in the Agreement requiring that a fire guard be posted

when the Energy Release Component (ERC) level reached eighty-five percent or

higher. Yet on the day that the Dog Head Fire began, when Appellants allege that the

ERC level was at ninety percent, no guard was posted. Second, they contend that the

Forest Service failed to observe its “mandatory obligation to impose fire restrictions

when the ERC reaches 90.” Appellants’ Opening Br. at 48 (citations omitted).

Because these claims are rooted in the same operative facts concerning the fire, we

consider them together.

Again, we begin by noting that the Agreement imposes a duty on the Pueblo—

not the Forest Service—to provide a fire guard. Appellants’ App. vol. 3 at 708 (“[The

Pueblo] will provide [a] fire guard.”). And it was the Pueblo that restricted operations

according to the fire precaution schedule in the Agreement. Id. at 566 (“[The Pueblo]

will restrict operations in accordance with the attached Emergency Fire Precaution

Schedule.”). Even so, we determine that the discretionary-function exception

independently bars the Forest Service’s liability.

Under the first Berkovitz prong, Appellants can’t point to any “specific and

mandatory” provisions directing where and when the Forest Service was to park the

32
trucks or post the guards. See Franklin Sav. Corp. v. United States, 180 F.3d 1124,

1131 (10th Cir. 1999). Rather, the Forest Service’s fire-safety specialist, Anthony

Martinez, testified that the decision of whether to have a fire truck at a mastication

site would be left to the “discretion of the operator,” “based on life and property and

the [associated] risk.” Appellants’ App. vol. 4 at 880. And even though Appellants

suggest the Forest Service was to post a fire guard near a masticator, the Agreement

didn’t say as much.

Similarly, Appellants rely on Martinez’s testimony to assert that there was a

mandatory condition to impose fire restrictions when the ERC level hit ninety

percent. Id. at 884 (stating in deposition testimony that when the ERC level reaches

ninety percent, Martinez would “definitely go into [fire] restrictions”). But Martinez

didn’t state that the ERC alone imposed a mandatory fire restriction; rather, he

testified that the decision to impose fire restrictions required considering additional

factors such as the “weather[,] . . . the severity of the fire season, fire occurrence,

[and] drought.” Id. at 883; see also id. vol. 7 at 1767–68 (district court noting that in

considering whether to impose fire restrictions, the Forest Service looks to the

temperature, wind speed, ERC, humidity, resources, events, staffing, and impact of

closing the forest on others).

The decisions regarding fire safety also satisfy the second Berkovitz prong.

Decisions about whether and when to distribute limited resources—namely a fire

guard or water truck—are informed by policy considerations such as public and

firefighter safety, suppression costs, environmental risks, and the availability of

33
resources. See Varig Airlines, 467 U.S. at 820 (noting that an agency’s decision

involved policy considerations when it required balancing goals of safety and “the

reality of finite agency resources”); Marlys Bear Med. v. U.S. ex rel. Sec’y of Dep’t

of Interior, 241 F.3d 1208, 1217 (9th Cir. 2001) (“[T]he distribution of limited

resources [is] a function that we have long held to be protected under the

discretionary function exception.” (citations omitted)).

Likewise, by its very nature, deciding whether to impose fire restrictions

involves balancing practical considerations of funding and safety as well as concerns

of a fire’s impact on wildlife, vegetation, and human life. See Hardscrabble Ranch,

L.L.C. v. United States, 840 F.3d 1216, 1222–23 (10th Cir. 2016) (“The nature of the

[Forest Service’s] actions in fighting the . . . [f]ire are susceptible to a policy analysis

grounded in social, economic, or political concerns.” (citation omitted)); Green v.

United States, 630 F.3d 1245, 1251 (9th Cir. 2011) (acknowledging that decisions

about how to fight a fire, attack a fire, and allocate fire suppression resources are

decisions grounded in public policy).11

Indeed, we needn’t find evidence in the record that in this very instance the

Forest Service “considered each of the identified policy factors.” Johnson, 949 F.2d

11
For the first time on appeal, Appellants argue that the Forest Service had
already decided to impose fire restrictions even before the fire started, but that it
failed to communicate this information quickly enough. This argument is based on
Martinez’s deposition testimony that the Forest Service had begun gathering
information and moving into restrictions before the fire started. Because “[w]e
generally do not consider issues raised for the first time on appeal,” United States v.
Mora, 293 F.3d 1213, 1218 (10th Cir. 2002), and we find no compelling reason here
to do otherwise, we decline to consider this issue.
34
at 339. Rather, the “discretionary function exception may apply in the absence of a

conscious decision,” so long as there was room for the Forest Service to make

“independent policy judgments.” Id.; see also Kiehn v. United States, 984 F.2d 1100,

1105 (10th Cir. 1993) (“[W]e will not assume a nonpolicy decision unless the record

shows something to the contrary.” (citations omitted)). We conclude that the

Complaints’ claims against the government based on the Forest Service’s negligence

are barred under the discretionary-function exception.

CONCLUSION

Because we determine that all of Appellants’ claims are jurisdictionally barred

under the FTCA, we AFFIRM the district court’s grant of summary judgment.

35