George

1 EASTERN DISTRICT OF WASHINGTON

Jan 05, 2026

2

SEAN F. MCAVOY, CLERK

3

4

5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF WASHINGTON

7 COLIN GEORGE, No. 2:25-CV-00047-RLP

8 Plaintiff, ORDER DENYING MOTION TO

DISMISS

9 v.

10 UNITED STATES OF AMERICA,

11 Defendant.

12 Before the Court is Defendant United States of America’s Motion to Dismiss

13 under FRCP 12(b)(1) for lack of subject matter jurisdiction. Oral Argument was

14 held on this matter on December 30, 2025. The United States was represented by

15 Assistant United States Attorneys Derek Taylor and Timothy Durkin. Braden

16 Pence appeared on behalf of Plaintiff Colin George.

17 For the reasons discussed below, the Court finds the issue of the United

18 States’ sovereign immunity under Washington’s Recreational Use Immunity

19 Statute (RUIS), RCW 4.24.210, is intertwined with the merits of Mr. George’s

20 negligence claim. In order to ensure the record is complete and accurate for the

1 Court’s review, the Court will provide the parties additional time to conduct

2 discovery into the latent condition exception to the RUIS. Therefore, the United

3 States’ motion is denied with leave to renew.

4 BACKGROUND

5 On the evening of August 29, 2021, Mr. George entered Lake Chelan from a

6 dock at Weaver Point Campground (WPC) in the Lake Chelan National Recreation

7 Area (LCNRA). ECF No. 1 at 1. Upon entering the lake, Mr. George was impaled

8 on a piece of wood, causing significant internal injuries. Id. at 12.

9 WPC is located on Lake Chelan near the mouth of the Stehekin River. ECF

10 No. 18-1, ¶19; see also ECF No. 19-2 at 244, 261. The Stehekin River carries a

11 large volume of trees, logs, branches, and other tree material into Lake Chelan.

12 ECF No. 18-1, ¶16; see also ECF No. 19-2 at 692 (2007 study estimating there are

13 110,348 cubic yards of wood in the Stehekin River at its mouth). The larger pieces

14 are referred to as “Large Wood Debris” (LWD). ECF No. 18-1, ¶17. The process

15 of LWD falling into the river and being carried downstream into the lake is natural.

16 Id., ¶16.

17 The NPS installs the dock at WPC annually, removing LWD as necessary to

18 install, remove, and maintain access to the dock. ECF No. 18-3, ¶¶5-6.

19 In 2013-14, the NPS constructed and installed bank erosion mitigation

20 landscaping approximately 70-80 feet from the WPC dock. ECF Nos. 18-3, ¶¶7-9;

1 19-2 at 6-16. The erosion project consists of LWD from the lake (specifically logs)

2 deposited onto the shoreline. ECF Nos. 18-1, ¶53; 18-3, ¶¶9-11.

3 Mr. George filed this suit on February 11, 2025, asserting a claim of

4 negligence stemming from the NPS’s breach of duty to exercise reasonable care to

5 protect invitees. ECF No. 1 at 19-22. Mr. George alleges the piece of wood he was

6 impaled on broke free from the erosion control project and drifted to the dock, and

7 that the dock, which allowed him to reach the deeper waters concealing the piece

8 of wood, lacked necessary warning signs. Id.

9 MOTION TO STRIKE

10 Mr. George moves to strike the overlength portions of the United States’

11 motion and the entirety of its Statement of Jurisdictional Facts, ECF No. 18.

12 Whether to strike all or part of an overlength pleading is at the discretion of

13 the Court. See Swanson v. U.S. Forest Service, 87 F.3d 339, 345 (9th Cir. 1996).

14 While the United States’ 21-page motion exceeds the 20-page limit set by LCivR

15 7(f)(1), the Court declines to strike the overlength portion as the extra page does

16 not seriously burden the Court’s review. However, the Court instructs the United

17 States to ensure all future filings comply with the local rules.

18 As for the United States’ Statement of Jurisdictional Facts, Mr. George

19 moves to strike the filing as it is not authorized by court rules. While Mr. George is

20 correct that no rule explicitly authorizes the filing of the Statement, no rule

1 prohibits it either. Still, the Court is sympathetic to Mr. George’s request. The

2 United States’ Statement of Jurisdictional Facts is excessively long, taking frequent

3 lengthy detours into matters irrelevant to its Motion to Dismiss. The inappropriate

4 inclusion of irrelevant facts into an already long filing burdened judicial review

5 and hampered Mr. George’s ability to respond to the motion. Nevertheless, the

6 Court will decline to strike the Statement of Jurisdictional Facts as an overly harsh

7 remedy. If the United States chooses to renew its Motion to Dismiss at a later date,

8 it is instructed to limit any similar Statement to only those facts necessary for the

9 Court to rule on the motion.

10 LEGAL STANDARD

11 “It is elementary that the United States, as sovereign, is immune from suit

12 save as it consents to be sued . . . and the terms of its consent to be sued in any

13 court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell,

14 445 U.S. 535, 538, 100 S.Ct. 1349 (1980). “Sovereign immunity is a jurisdictional

15 bar: absent an unequivocal statutory waiver of sovereign immunity, courts lack

16 jurisdiction to entertain a suit against the United States or its agencies.” Villegas v.

17 United States, 926 F. Supp. 2d 1185, 1195 (E.D. Wash. 2013). “For that reason, a

18 motion to dismiss based on sovereign immunity is essentially a motion to dismiss

19 for lack of subject matter jurisdiction.” Id. Plaintiff carries the burden to

20 demonstrate that his action “falls within an unequivocally expressed waiver of

1 sovereign immunity by Congress.” Dunn & Black, P.S. v. United States, 492 F.3d

2 1084, 1088 (9th Cir. 2007).

3 A FRCP 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is

4 a proper vehicle for invoking sovereign immunity from suit. Pistor v. Garcia, 791

5 F.3d 1104, 1111 (9th Cir. 2015).

6 A Rule 12(b)(1) jurisdictional attack may be facial or factual. In

a facial attack, the challenger asserts that the allegations contained in a

7 complaint are insufficient on their face to invoke federal jurisdiction.

By contrast, in a factual attack, the challenger disputes the truth of the

8 allegations that, by themselves, would otherwise invoke federal

jurisdiction.

9

In resolving a factual attack on jurisdiction, the district court

10 may review evidence beyond the complaint without converting the

motion to dismiss into a motion for summary judgment. The court

11 need not presume the truthfulness of the plaintiff’s allegations. Once

the moving party has converted the motion to dismiss into a factual

12 motion by presenting affidavits or other evidence properly brought

before the court, the party opposing the motion must furnish affidavits

13 or other evidence necessary to satisfy its burden of establishing

subject matter jurisdiction.

14

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal

15

citations and quotation marks omitted).

16

To assert a claim under the Federal Tort Claim Act, a plaintiff must

17

plausibly allege that the United States waived its sovereign immunity under the

18

FTCA. Brownback v. King, 592 U.S. 209, 217-18, 141 S. Ct. 740 (2021). A valid

19

FTCA claim must be:

20

[1] against the United States, [2] for money damages, . . . [3] for

1 injury or loss of property, or personal injury or death [4] caused by the

negligent or wrongful act or omission of any employee of the

2 Government [5] while acting within the scope of his office or

employment, [6] under circumstances where the United States, if a

3 private person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.

4

Id. at 212 (internal quotation marks omitted).

5

Washington’s RUIS provides:

6

any public or private landowners . . . who allow members of the

7 public to use them for the purposes of outdoor recreation . . . without

charging a fee of any kind therefor, shall not be liable for

8 unintentional injuries to such users.

9 RCW 4.24.210(1). The RUIS carves out an exception to this immunity to “a

10 landowner . . . for injuries sustained to users by reason of a known dangerous

11 artificial latent condition for which warning signs have not been conspicuously

12 posted.” RCW 4.24.210(4)(a).

13 Recreational immunity is an affirmative defense to a claim of liability,

14 meaning “the landowner bears the burden of proving entitlement to that

15 immunity.” Schwartz v. King County, 200 Wn.2d 231, 238, 516 P.3d 360 (2022). A

16 plaintiff bears the burden of proving the latent condition exception to the RUIS

17 applies. See Schwartz, 200 Wn.2d at 239.

18 DISCUSSION

19 The United States contends it has not waived sovereign immunity under the

20 FTCA, as Washington’s RUIS would immunize it from suit if it were a private

1 person. Mr. George contends the latent condition exception applies, and thus the

2 United States waived its sovereign immunity.

3 Before reaching the issue of the RUIS and the latent condition exception, the

4 Court must first determine whether this issue and the merits of Mr. George’s

5 negligence claim are intertwined.

6 “[I]f the existence of jurisdiction turns on disputed factual issues, the district

7 court may resolve those factual disputes itself” unless “the issue of subject-matter

8 jurisdiction is intertwined with an element of the merits of the plaintiff’s claim”

9 Leite v. Crane Co., 749 F.3d 1117, 1121-22, 1122 n.3 (9th Cir. 2014). The issue of

10 jurisdiction is intertwined with an element of the merits of the plaintiff’s claim

11 where a determination of jurisdictional facts requires at least a partial resolution of

12 a dispute of fact bearing on the merits of the underlying claim. See Young v. United

13 States, 769 F.3d 1047, 1052 (9th Cir. 2014).

14 If a court finds the issue of subject matter jurisdiction to be intertwined with

15 the merits of plaintiff’s claim, then the court “should employ the standard

16 applicable to a motion for summary judgment . . . [and] the moving party should

17 prevail only if the material jurisdictional facts are not in dispute and the moving

18 party is entitled to prevail as a matter of law.” Augustine v. United States, 704 F.2d

19 1074, 1077 (9th Cir. 1983). “Unless that standard is met, the jurisdictional facts

20 must be determined at trial by the trier of fact.” Id.

1 Intertwinement clearly exists here. The latent condition exception to requires

2 Mr. George to show that the injury-causing condition was known, dangerous,

3 artificial, and latent. Schwartz, 200 Wn.2d at 239. Mr. George asserts a claim of

4 negligence, requiring him to prove the NPS breached its duty to exercise

5 reasonable care to protect invitees like himself. Little v. Rosauers Supermarkets,

6 Inc., 24 Wn. App. 2d 898, 902, 521 P.3d 298 (2022).

7 Whether or not the NPS knew of the injury-causing condition, whether it

8 was artificial, i.e., created by the NPS, or natural, or whether it was dangerous all

9 have a direct bearing on the scope of the duty the NPS owed to Mr. George, and

10 whether it breached a duty it owed to him. Determining jurisdictional facts related

11 to the latent condition exception will resolve, at least in part, factual disputes going

12 to the merits of his negligence claim. See Okert v. United States, 2024 WL

13 3995304 at *4-5 (E.D. Wash. 2024). The two issues are intertwined.

14 In its motion and at oral argument, the United States contended complete

15 identity between jurisdictional facts and the elements of the underlying claim is

16 necessary to find intertwinement. The United States’ argument appears to be based

17 on an alternative standard for determining intertwinement – whether “a [single]

18 statute provides the basis for both the subject matter jurisdiction of the federal

19 court and the plaintiff’s substantive claim for relief.” Sun Valley Gasoline, Inc. v.

20 Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983) (internal quotation marks

1 omitted). This standard is inapplicable here as the basis for subject matter

2 jurisdiction, the FTCA, does not provide the basis for Mr. George’s substantive

3 negligence claim. See Anderson v. United States, 606 F. Supp. 3d 1040, 1051 (E.D.

4 Wash. 2022). As stated above, any determination of jurisdictional fact which

5 requires resolution of a dispute of fact going to the merits, even in part, results in

6 intertwinement.

7 Nevertheless, the United States contends this standard only applies to

8 removal proceedings, not a motion to dismiss. The United States cites Bowen v.

9 Energizer Holdings, Inc., 118 F.4th 1134, 1143 (9th Cir. 2024) in support of this

10 contention. The United States misinterprets Bowen. In Bowen, the Ninth Circuit

11 cited to a removal proceeding case, DeFiore v. SOC LLC, 85 F.4th 546, 553 (9th

12 Cir. 2023), as an example of the relevant standard for intertwinement – that

13 “jurisdictional issue[s] and substantive issues are deemed intertwined [when] the

14 question of jurisdiction is dependent on the resolution of factual issues going to the

15 merits”. Bowen, 118 F.4th at 1143 (internal quotation marks omitted, alterations in

16 original). The Ninth Circuit did not hold this standard only applies to removal

17 proceedings. Likewise, the DeFiore court did not hold that standard only applied in

18 the context of removal proceedings. 85 F.4th at 552-53.

19 The United States also contends the shared factual disputes standard does

20 not apply because Mr. George has no right to a jury trial under the FTCA.

1 Nevertheless, the Ninth Circuit applied the shared factual disputes standard to find

2 intertwinement on a Government Rule 12(b)(1) motion to dismiss a FTCA claim in

3 Young. 769 F.3d at 1052-53. While the United States attempts to distinguish Young

4 on the basis that the Government moved to dismiss based on the Discretionary

5 Function Exception, it is unclear why this difference matters or would require a

6 different intertwinement analysis. Accordingly, the Court declines to apply a

7 different standard here.

8 The United States also attempts to distinguish Young by reading it to require

9 complete identity of jurisdictional facts and elements of the underlying claim. This

10 ignores Young’s plain language that “the question [of] whether the Park Service

11 knew or should have known of the hazard created by the transformer is a disputed

12 issue of jurisdictional fact that is ‘so intertwined’ with the substantive dispute that

13 resolution of the former depends, at least in part, on resolution of the latter.” 769

14 F.3d at 1052 (emphasis added). Clearly, complete identity between the

15 jurisdictional facts and the elements of the underlying claim are not a requirement.

16 As the issues of jurisdiction and the merits of Mr. George’s claim are

17 intertwined, the Court must apply a summary judgment standard to the United

18 States motion. Dismissal can only be granted if there is no genuine dispute of fact

19 that an essential element of the latent condition exception is not satisfied.

20

1 Mr. George asks the Court to continue ruling on this motion to permit him to

2 conduct additional discovery into jurisdictional issues. ECF No. 20 at 21. On a

3 Rule 12(b)(1) motion to dismiss, district courts have discretion to continue ruling

4 on the motion to permit jurisdictional discovery. Boschetto v. Hansing, 539 F.3d

5 1011, 1020 (9th Cir. 2008). “Discovery may be appropriately granted where

6 pertinent facts bearing on the question of jurisdiction are controverted or where a

7 more satisfactory showing of the facts is necessary.” Id. (internal quotation marks

8 omitted).

9 The Court finds that a more complete record is necessary before it can

10 determine whether there are any genuine disputes of fact as to the latent condition

11 exception. Therefore, the Court grants Mr. George’s request for additional, limited,

12 jurisdictional discovery. The United States’ motion to dismiss is denied with leave

13 to renew.

14 IT IS ORDERED:

15 1. The United States’ Motion for Rule 12(b)(1) Dismissal for Absence of

16 Subject Matter Jurisdiction is DENIED with leave to renew.

17 2. Plaintiff Colin George’s request for jurisdictional discovery is

18 GRANTED. The parties shall conduct narrowly tailored discovery on the latent

19 condition exception – i.e., on whether the wood debris Mr. George landed on was a

20

1|| (1) known (2) dangerous (3) artificial (4) latent condition. No discovery outside the

2|| four elements of the latent condition exception shall be permitted at this time.

3 3. All jurisdictional discovery shall be completed no later than April 6,

4|| 2026. To be timely, discovery requests must be served sufficiently in advance of

5|| the deadline to allow for timely response by the cutoff date. The parties shall file

6|| no discovery except as necessary to support motions or objections.

7 4. To avoid wasted time and expense, Counsel may contact chambers to

8 || schedule a telephonic conference to obtain an expedited ruling on discovery

9|| disputes. Prior to the conference, each party may submit to the Court a one-page

10|| summary explaining the discovery dispute. The Court will endeavor to schedule a

11]| conference to occur within 2-3 days of the initial request. Absent very unusual

12]| circumstances, the parties should not contact the Court during a deposition. Instead,

during a deposition, the parties should make an appropriate record for review by the

14|| Court at a later time.

15 5. The United States shall file and serve a renewed Motion to Dismiss on

16|| or before April 17, 2026.

17|| IT IS SO ORDERED.

18 DATED January 5, 2026.

9

20 ~ REBECCAL.PENNELL

UNITED STATES DISTRICT JUDGE

ORDER NENVING MATION TOA NICATOR * 19