Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

21ST CENTURY CENTENNIAL INSURANCE Case No. 6:24-cv-00089-MTK (Lead Case)

COMPANY, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants,

Case No. 6:24-cv-00092-MTK (Trailing Case)

ROBERT ADAMS, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants,

KEVIN ALLARD, et al., Case No. 6:24-cv-00203-MTK (Trailing Case)

Plaintiffs,

v.

UNITED STATES, et al.,

Defendants,

Case No. 6:24-cv-01152-MTK (Trailing case)

GIUSTINA LAND & TIMBER CO., LLC, et al.

Plaintiffs,

v.

EUGENE WATER & ELECTRIC BOARD, et

al.,

Defendants,

TRACI ENFIELD, et al., Case No. 6:25-cv-00554-MTK (Trailing case)

Plaintiffs, OPINION AND ORDER

v.

UNITED STATES, et al.,

Defendants.

KASUBHAI, United States District Judge:

Defendant United States of America moves to dismiss all claims against it for lack of

subject matter jurisdiction. ECF Nos. 84, 116; Enfield v. United States, No. 6:25-cv-00554-

MTK, ECF No. 17. For the reasons explained below, Defendant United States’ motions are

DENIED in part and GRANTED in part.

BACKGROUND

I. The Fire

On September 4, 2020, the National Weather Service forecasted strong winds with gusts

over fifty miles per hour which, combined with existing dry conditions and low humidity, led to

a fire weather watch in Lane County for the next several days. See Curtis Aff. Supp. Pls.’ Resp.

Mot. Dismiss (“Curtis Aff.”) Ex. A (“USFS Report”) 1, 1129-31, ECF No. 161-1. On September

7, 2020, two wildfires started along Oregon Highway 126. USFS Report 1. The two fires merged

to form the Holiday Farm Fire. USFS Report 1. The Holiday Farm Fire burned over 170,000

acres, destroyed over 700 structures, and killed one person. Curtis Aff. Ex. P “ODF Summary” 3,

ECF No. 161-16.

The United States Forest Service investigated and reported the cause of the fire. USFS

Report 1. The first ignition took place near McKenzie Bridge after a tree fell on a de-energized

Eugene Water and Electric Board (“EWEB”) power line and pushed it into an energized Lane

Electric Cooperative, Inc. (“LEC”) power line, energizing the entire EWEB line. USFS Report 1;

Curtis Aff. Ex. O (“Origin Report”) 135-36, ECF No. 161-15. Six miles to the west, near

milepost 41 of Oregon Highway 126, a tree fell on a Bonneville Power Administration (“BPA”)

power line, the Cougar-Holden line, pushing it into ground vegetation. USFS Report 1; Origin

Report 14, 136. Once the EWEB line was energized, it carried the electricity to the fallen BPA

line, igniting the combustible ground vegetation and causing substantial fire damage and loss of

life and property in the surrounding communities. Origin Report 136; USFS Report 30; ODF

Summary 3.

II. The Parties

Those harmed by the fire filed multiple lawsuits, now consolidated before the Court, in

four groups (collectively, Plaintiffs”). See ECF Nos. 62, 185 (consolidating cases). Three of

these groups, the “Allard Plaintiffs,” the “Adams Plaintiffs,” and the “Enfield Plaintiffs,” are

comprised directly of residents, representatives, and legal entities harmed by the fire.1 A fourth

group of plaintiffs, the “Subrogation Plaintiffs,” is made up of insurance companies that paid

policy claims to their insureds for losses resulting from the fire. Subr. FAC ¶¶ 7, 54.

Plaintiffs bring tort claims2 against three electrical utilities which do business in Oregon.

Defendant United States operates BPA as a federal agency under the Department of Energy.

Adams SAC 190-91; Allard FAC 22-30; Enfield Compl. 19-25; Subr. FAC 20-21. BPA

1 First Am. Compl. (“Allard FAC”), Allard v. United States, No. 6:24-cv-00203-MTK, ECF No.

47; Second Am. Compl. (“Adams SAC”) ECF No. 115; First Am. Compl. (“Subr. FAC”) ECF

No. 67; Compl. (“Enfield Compl.”), Enfield v. United States, No. 6:25-cv-00554-MTK, ECF No.

1.

2 The Adams Plaintiffs allege negligence, gross negligence, and trespass. Adams SAC 190-91,

194, 199-200; The Allard Plaintiffs allege negligence, negligence per se, trespass, and nuisance.

Allard FAC 22-30. The Enfield Plaintiffs allege negligence, trespass, and nuisance. Enfield

Compl. 19-25. The Subrogation Plaintiffs allege negligence. Subr. FAC 20-21.

transmits electricity to local utility providers throughout the Pacific Northwest. E.g., Subr. FAC

¶ 18; Allard FAC ¶ 13. Defendant EWEB and Defendant LEC sell electricity to local customers,

which includes electricity purchased from BPA. E.g., Subr. FAC ¶ 17; Allard FAC ¶¶ 14-15.

Defendants EWEB and LEC bring crossclaims against the United States.3

III. Claims Against the United States

Underlying the claims against the United States is at least one of two allegations central

to the instant motion: The United States, through BPA, caused the Holiday Farm Fire by failing

to (1) remove a hazardous tree adjacent to its power lines and (2) appropriately operate its power

lines.4 The United States moves to dismiss all claims against it for lack of subject matter

jurisdiction. The United States argues specifically that its conduct is protected by the

discretionary function exception to the Federal Tort Claims Act.

Following the United States’ motions, the Court allowed jurisdictional discovery. ECF

Nos. 124, 121, 93. Thereafter, the Court consolidated Enfield v. United States, No. 6:25-cv-

00554-MTK, with the leading case for purposes of pretrial motions and discovery. Order, ECF

No. 185. The Court now considers whether the United States is immune from all the claims

alleged by the Subrogation Plaintiffs, the Adams Plaintiffs, the Allard Plaintiffs, Defendant

EWEB, Defendant LEC, and the Enfield Plaintiffs (collectively, “Non-Movants”).

3 EWEB alleges contributory negligence and contribution. Def. Eugene Water and Electric

Board’s Ans., Affirmative Defenses, and Cross-cls. (“EWEB Cross-cls.”) 18-20, ECF No. 73.

LEC alleges contribution. Def. Lane Electric Cooperative, Inc.’s Ans., Affirmative Defenses, and

Cross-cl. (“LEC Cross-cl.”) 13-14, ECF No. 74.

4 E.g., Subr. FAC ¶¶ 49-55 (tree); Adams SAC ¶ 1680 (power lines and tree); Allard FAC ¶¶ 55

(power lines and tree); Enfield Compl. ¶ 57 (power lines and tree); EWEB Cross-cls. ¶109; Def.

Eugene Water and Electric Board’s Joinder Certain Non-United States Parties Resps. United

States’ Mot. Dismiss ECF No. 157 (tree); LEC Cross-Cl. 13-14 (tree).

STANDARDS

Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256

(2013) (quotation marks and citation omitted). As such, a court is to presume “that a cause lies

outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party

asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(citations omitted); see also Advanced Integrative Med. Sci. Inst., PLLC v. Garland, 24 F.4th

1249, 1256 (2022). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack

of “subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be

forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a

particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its

own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ.

P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed.

R. Civ. P. 12(h)(3); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that

when a court lacks subject-matter jurisdiction, meaning it lacks the statutory or constitutional

power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either

“facial” or “factual.” See Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). A facial

attack on subject matter jurisdiction is based on the assertion that the allegations contained in the

complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual

where the challenger disputes the truth of the allegations that, by themselves, would otherwise

invoke federal jurisdiction.” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013). A factual

attack on the plaintiff’s assertion of jurisdiction “contests the truth of the plaintiff's factual

allegations, usually by introducing evidence outside the pleadings.” NewGen, LLC v. Safe Cig,

LLC, 840 F.3d 606, 614 (9th Cir. 2016); see also Terenkian v. Republic of Iraq, 694 F.3d 1122,

1131 (9th Cir. 2012). A factual challenge “can attack the substance of a complaint’s

jurisdictional allegations despite their formal sufficiency.” Dreier v. United States, 106 F.3d 844,

847 (9th Cir. 1996) (citation and quotation marks omitted).

DISCUSSION

I. The Discretionary Function Exception

As a sovereign, the United States is immune from suit unless Congress has unequivocally

waived that immunity. Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir.

2007). The Federal Tort Claims Act (“FTCA”) waives sovereign immunity for injury “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.” 28 U.S.C. § 1346(b)(1). “[T]he FTCA was

created by Congress with the intent ‘to compensate individuals harmed by government

negligence,’ and as a ‘remedial statute,’ it ‘should be construed liberally, and its exceptions

should be read narrowly.’” Terbush v. United States, 516 F.3d 1125, 1135 (9th Cir. 2008)

(quoting O’Toole v. United States, 295 F.3d 1029, 1037 (9th Cir. 2002)).

The FTCA’s waiver does not extend, however, to “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). This limitation, known as the discretionary function 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.” Berkovitz v.

United States, 486 U.S. 531, 536 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797,

808 (1984)).

A. The Berkovitz Test

Courts use a two-part test to determine whether the exception applies. Berkovitz, 486 U.S.

at 536. The government bears the burden to show conduct falls within the exception. Chang v.

United States, 139 F.4th 1087, 1093 (9th Cir. 2025).

First, the conduct in question must “involv[e] an element of judgment or choice.”

Berkovitz, 486 U.S. at 536. In making this inquiry, the court focuses on “the nature of the

conduct, rather than the status of the actor,” meaning discretionary conduct is not limited to the

planning level. United States v. Gaubert, 499 U.S. 315, 325 (1991) (citation omitted); Chang,

139 F.4th at 1095 (explaining that implementing a government design is discretionary “when

‘[t]he implementation itself implicates policy concerns.’”) (citation omitted). The exception does

not apply “when a federal statute, regulation, or policy specifically prescribes a course of action

for an employee to follow.” Lam v. United States, 979 F.3d 665, 674 (9th Cir. 2020) (“If the

policy is mandatory, it cannot be discretionary.”).

Second, the judgment involved must be “based on considerations of public policy.”

Gaubert, 499 U.S. 323 (quoting Berkovitz, 486 U.S. at 537). Not every act involving judgment is

protected because the discretionary function exception “is not so broad that it would overtake the

very waiver of sovereign immunity from which it cuts back.” Chang, 139 F.4th at 1093. For

example, driving a vehicle may require government officials to make judgments such as how fast

to drive or how soon to brake, but those judgments are not grounded in public policy. See

Gaubert, 499 U.S. at 325 n.7. The discretionary function exception “prevent[s] judicial ‘second-

guessing’ of legislative and administrative decisions grounded in social, economic, and political

policy through the medium of an action in tort.” Gaubert, 499 U.S. at 323 (quoting Varig

Airlines, 467 U.S. at 814). For example, the discretionary function exception shielded from

liability the Federal Aviation Administration’s design and implementation of a “spot-check” plan

to inspect airplanes because the conduct was grounded in the agency’s objective to maintain air

transportation safety. Varig Airlines, 467 U.S. at 816, 819-20.

The inquiry focuses “not on the agent’s subjective intent . . . but on the nature of the

actions taken and on whether they are susceptible to policy analysis.” Lam, 979 F.3d at 674

(quoting Gaubert, 499 U.S. at 325). The conduct is presumptively grounded in public policy

where the agent acts with discretion. Id. At the motion to dismiss stage, a plaintiff “must ‘allege

facts which would support a finding that the challenged actions are not the kind of conduct that

can be said to be grounded in the policy of the regulatory regime.’” Terbush, 516 F.3d at 1130

(quoting Gaubert, 499 U.S. at 324-25).

B. Relevant Cases

Several Ninth Circuit cases analyze the discretionary function exception in the context of

the government’s failure to manage hazards associated with its land. E.g., Kim v. United States,

940 F.3d 484, 486 (9th Cir. 2019) (failure to evaluate and respond to tree hazards in Yosemite

National Park); Lam, 979 F.3d at 670 (failure to remove a tree in a Lake Mendocino recreation

area campground); Chang, 139 F.4th at 1090 (failure to maintain a lawn in a national park in the

Northern Mariana Islands). These cases inform the Court’s analysis.

The discretionary function exception does not protect technical and professional

judgments made in the absence of policy considerations. Kim, 940 F.3d at 489. In Kim, a tree

limb fell on a tent in a Yosemite campground, killing two people. Id. at 486. The plaintiffs

alleged that park officials failed to identify and mitigate the risk posed by the tree. Id. at 487. The

government argued that park officials’ decision to mitigate the risk posed by the tree was

protected by the discretionary function exception. Id. at 488, 491. Park officials used a seven-

point system to assign each tree a “‘Total Hazard Rating’ (ranging from two to seven) that

combine[d] a ‘Defect Rating’ based on the tree's potential for physical failure and a ‘Target

Rating’ based on the potential impact in the event of a failure.” Id. at 488. A tree’s “visible decay

and damage” like “dead limbs, rot, or fungus” determined its Defect Rating. Id. at 489 n.2. A

tree’s “proximity to . . . campgrounds, lodges, residences, trails, roads, and picnic areas”

determined its Target Rating. Id. A tree with a Total Hazard Rating of five or higher “require[d]

some type of abatement/mitigation.” Id. at 488. Although experts disputed the rating of the tree

in question, the discretionary function did not apply because the seven-point system only allowed

officials leeway to use technical expertise to evaluate tree risk considering “variations in [tree]

species and environmental factors” and not any public policy considerations. Id. at 489-90.

The discretionary function exception protects conduct made under a policy that requires a

government employee to weigh competing policy goals. Lam, 979 F.3d at 680-81. The Lam

plaintiff was struck by a falling tree while he slept at a campground in a Lake Mendocino

recreation area. Id. at 670. He alleged that the officials who managed the recreation area

negligently failed to remove the tree. Id. Officials were required to manage the recreation area

according to an operational management plan. Id. at 678-79. The plan, however, only provided

“guiding objectives” such as maintaining wildlife habitat and “general requirements” for tree

management like daily inspections in developed areas. Id. at 679. The plan did not contain

specific criteria for inspecting the trees. Id. at 680. The plan further identified specific policy

considerations to balance in managing the recreation area like maximizing recreational

experiences, protecting natural resources, and preserving aesthetics. Id. at 681. Because officials

had to weigh competing policy concerns, they exercised discretion grounded in public policy,

and the discretionary function exception applied. Id. at 682.

Whether government conduct implicates public policy concerns may be analyzed along a

spectrum. Chang, 139 F.4th at 1094. The discretionary function exception does not apply on one

end of the spectrum, where “decisions [are] totally divorced from the sphere of policy analysis.”

Id. (quoting O’Toole, 295 F.3d at 1035). On the other end of the spectrum, the discretionary

function exception protects decisions “fully grounded in regulatory policy.” Id. (quoting

O’Toole, 295 F.3d at 1035). In Chang, the plaintiff injured his ankle falling into a hole in a lawn

maintained by the National Park Service. Id. at 1091-92. He alleged that the park service

negligently failed to repair the hole. Id. at 1092. The discretionary function exception did not

apply because repairing the hole was a “very standard form of property maintenance” as opposed

to a decision requiring officials to weigh policy considerations like wildlife and habitat

preservation. Id. at 1097-98.

II. Application

Courts examine each “specific allegation[] of agency wrongdoing” because “determining

the precise action the government took or failed to take” is critical to the discretionary function

exception inquiry. Young v. United States, 769 F.3d 1047, 1053 (9th Cir. 2014) (citation

omitted). Non-Movants present two specific allegations relevant here: BPA failed to (1) remove

a hazardous tree at risk of falling on its lines and (2) properly operate its power lines.

A. Danger Tree

The Non-Movants allege that BPA failed to prevent a tree from falling on its power

lines.5 The United States argues that BPA has discretion to identify and remove these types of

trees.

5 The complaints and cross-claims do not all appear to identify the same tree. Compare LEC

Cross-cls. 13-14 (alleging failure to remove a Western Hemlock) with Allard Pls.’ Resp. Def.

United States’ Mot. Dismiss 26, ECF No. 159 (referring to a fir tree).

1. Identifying a Danger Tree

BPA crews must inspect lines under 120 kV, like the Cougar-Holden line, every three

years, in conjunction with BPA’s maintenance cycle, for danger trees. Curtis Aff. Ex. Y

“Sheppard Dep.” 71:9-72:7, ECF No. 161-25; Sheppard Decl. ¶ 5, ECF No. 87. Generally, a

danger tree is “[a]ny tree located outside of the [right of way] which is a present or future hazard

to the transmission line.” Sheppard Dep. 52:7-10; Sheppard Decl. Ex. B (“TLM-STD-7-2-1”) at

3, ECF No. 87-2. Danger trees can be categorized in several ways. E.g., TLM-STD-7-2-1 §§

4.3.1 (Fall-Into Danger Tree), 4.3.2 (Bend-Into Danger Tree), 4.3.3 (Swing-Into Danger Tree),

4.3.4 (Grow-Into Danger Tree). Fall-Into Danger Trees are relevant here.

BPA’s written policy, TLM-STD-7-2-1, defines a Fall-Into Danger Tree as follows:

4.3.1 Fall-Into Danger Tree (DT)

1) Characteristics: Fall-into Danger Trees are unstable, with a 50 percent

or greater probability of structural failure within five years. Structural

failure may be due to physical damage or environmental conditions.

• Physical damage includes, but are [sic] not limited to fire, fork tops,

multi-stems, declining vigor, snow damage and root rot.

• Environmental conditions include but are not limited to tree fringes

left from logging, erosion from recent storms, mass-wasting, flooded or

saturated ground and slides or evidence of unstable ground.

2) Identification: Identification of a fall-into danger trees [sic] is based on;

• Its instability characteristics.

• If it were to fall, it could violate the clearance threshold distances

for Danger Trees as identified in Table 4.1 and as shown in Figure 4.1.

. . . .

□□□

□ □□

Fay ts

“lng, ‘. \\,

ce. ov

ne L \

\ □□□

AA

NV

\/

R.O.W. Edge /

Figure 4.1 Example of Danger Tree “Fall-Into”.

TLM-STD-7-2-1 § 4.3.1.

TLM-STD-7-2-1 further establishes the clearance thresholds for danger trees which are

calculated using the Minimum Vegetation Clearance Distance (“MVCD”), defined as the

“minimum distance between conductors and vegetation to prevent flash-over between [them]”:

Table 4.1

Danger Brush, Cycle Maintenance and Danger Tree

Clearance Thresholds at all operating conditions

Voltage Imminent Danger Trees Danger Brush Cycle

Threat (DT) (DB & DTG) Maintenance

As Observed CM

200 kV & above | MVCD+5 ft. MVCD3>S5 ft. Less than 15 15-20 feet

feet

below 200 kV MVCD+Sft. MVCD3>S5 ft. Less than 10 10-15 feet

feet

Fiber optic Less than 3 feet 3-10 feet

TLM-STD-7-2-1 at 3, 11.

Page 12 — OPINION AND ORDER

The policies make clear that a Danger Tree is identified when it (1) is fifty percent or

more likely to fall within the next five years and (2) would fall within the specified minimum

distance of BPA equipment. The first determination requires BPA patrol crews to exercise their

professional judgment to evaluate the environmental conditions and physical characteristics of

the tree. Sheppard Dep. 80:2-20. The second determination is a mathematical calculation: BPA

officials or contractors determine whether a tree would fall inside “a specific distance that needs

to be maintained.” Sheppard Dep. 83:23-84:7, 86:7-21, 92:12-93:1. That distance is five feet,

plus the MVCD, on the Cougar-Holden Line. See Sheppard Decl. ¶ 5 (stating that the Cougar-

Holden Line is a 115 kV transmission line). The MVCD is a fixed value. See Sheppard Dep.

48:5-18; 59:2-3. The second determination is therefore mandatory; BPA crews do not exercise

any element of judgment in calculating the minimum threshold clearances for trees. BPA crews

do, however, exercise judgment in determining whether a tree’s characteristics and its

environment indicate whether it is fifty percent or more likely to fall within the next five years.

BPA crews must rely on their professional judgment to assess the environmental and

physical condition of the tree under TLM-7-2-1. The park officials in Kim, similarly, used their

technical expertise to assess whether a tree’s physical attributes and its environment reached the

threshold for abatement or removal under the seven-point system. But neither do the BPA crews

here, nor did the park officials in Kim, employ any public policy considerations to arrive at their

respective conclusions. See Sheppard Dep. 78:21-79:24 (BPA crews only apply the policy

language and not their own political, economic, or social views when assessing a tree’s potential

to fall).

The United States argues that the policy language in Kim is more specific than BPA’s

TLM-7-2-1 because the Kim language required officials to assign certain point ratings for certain

factors and to mitigate the danger of the tree if the points exceeded certain values. The

distinction, here, sees the forest for trees. BPA’s policy language in this case identifies the

relevant factors and supplies a threshold value for identification of a danger tree. See Sheppard

Dep. 75:8-16 (affirming that crews are required to determine whether a tree is fifty percent or

more likely to fall). Whether that threshold is expressed in points or percentage points, it does

not involve public policy judgments.

Although conduct is presumptively grounded in public policy considerations when a

government official acts with discretion, BPA crews do not consider any criteria outside of the

environmental and physical characteristics in § 4.3.1 to identify a danger tree. Sheppard Dep.

78:21-79:4. The record and the explicit terms of TLM-7-2-1 here do not support a finding that

BPA weighs any competing public policy objectives in assessing a tree’s likelihood to fall. Cf.

Lam, 979 F.3d at 681 (citing competing aims of maximizing recreation, protecting resources, and

preserving aesthetics). The identification of danger trees is not susceptible to public policy

considerations, and the discretionary function exception does not protect a failure to identify a

danger tree.

2. Removing a Danger Tree

The United States also argues that BPA officials perform a discretionary function in

removing a fall-into danger tree. The relevant policies begin with BPA’s Transmission Line

Maintenance Performance Level Guides, which designate responsibility for danger tree removal

to the Natural Resource Specialist (NRS):

3.14 Danger Tree (S)

Program all activities based on inspection during helicopter and working

patrol. Program trees for removal are based on the criteria in the TLM

Standards and Guides. TLM only responds to imminent hazard vegetation

found during working patrol. All other trees and brush shall be the

responsibility of the NRS for removal.

When new lines are to be constructed adjacent to an existing line needing

danger tree removal, this work should be scheduled to coincide with the

new clearing activities. Program for one fiscal year only i.e., the year the

removal is to be done. Do not include or estimate Real Property Services

resources costs for cruising, marking, and acquisition.

Curtis Aff. Ex. T 8-9, ECF No. 161-20; see also Sheppard Dep. 50:1-13 (defining NRS). BPA

policy further sets a timeline for removal of fall-into danger trees:

4.7.2 Removal Response Time (S)

Follow the removal response times listed below.

. . . .

3) Cycle Maintenance Reporting During All Patrols

• Cycle maintenance requires mitigation by May 31 of the following

calendar year. (Example: Discovered April 2016 will be mitigated

by May 31, 2017)

. . . .

5) For Bend Into, Fall Into, and Swing Into Danger Trees During all Patrols

the NRS shall review danger tree reports and will schedule field evaluations.

• Allow adequate time for Valuation and Forestry to research

landowner easements and agreements.

o Acquisition of cutting rights may be required before Danger

Trees can be cut.

o Where Danger Tree rights have already been acquired according

to easement documents, Danger Trees may be removed during

the current fiscal year.

• NRS compiles a Danger Tree list and submits it annually to

Valuation and Forestry.

o Valuation and Forestry notifies the NRS of the Notice of Rights

Secured (NORS).

o NRS schedules removal during the next fiscal year’s vegetation

clearing program or earlier as schedule and budget allow.

TLM-STD-7-2-1 § 4.7.2. The “(S)” mark before each policy indicates that “[it is] required. [It]

[s]hall be done.” Sheppard Dep. 117:22-25.

The United States argues that the removal policy is discretionary because it requires

officials to clear legal rights through BPA’s Valuation and Forestry department. The policy’s

terms, however, are described in mandatory language: “[C]ycle maintenance requires mitigation

by May 31 of the following year.” The policy’s language only directs officials to report the

Danger Tree to allow enough time for legal rights to be cleared to “schedule[] removal during the

next fiscal year’s vegetation clearing program.”

The United States does not dispute that the U.S. Forest Service owned land on which the

alleged danger tree stood. United States First. Am. Reply Supp. Mot. Dismiss 18, ECF No. 165.

BPA’s Memorandum of Understanding with the Forest Service shows that the Forest Service

consults with BPA as to when to cut danger trees on Forest Service land. Sheppard Dep. 52:14-

53:17; Curtis Aff. Ex. S 12, ECF No. 161-19 (“[T]he Forest Service, in consultation with [BPA],

may revise the timing during the scheduled year of routine cycle vegetation maintenance on a

case-specific basis as needed to minimize adverse environmental effects.”) (emphasis added).

The Forest Service may need to consider impacts to endangered species and sensitive habitat

prior to a danger tree’s removal and has occasionally denied a request from BPA to cut a danger

tree on forest service land. Sheppard Dep. 97:9-98:17. That fact, however, does not mean that

BPA may claim it also considers endangered species and sensitive habitat, particularly where

those factors do not appear in the language of BPA’s policies. The government may not “merely

. . . [wave] the flag of policy as a cover for anything and everything it does.” Terbush, 516 F.3d

at 1134. BPA’s danger tree removal policies also do not establish discretion grounded in public

policy by referencing budgetary limits. “In enacting § 2680, . . . Congress did not intend to

protect decision-making based on budgetary constraints.” Bolt v. United States, 509 F.3d 1028,

1034 (9th Cir. 2007).

Appropriately framed, danger tree removal, like the lawn maintenance in Chang, is more

like standard property maintenance than it is any consideration grounded in public policy. TLM-

7-2-1 and BPA’s agreements repeatedly refer to danger tree removal as routine and cyclical

maintenance. BPA’s own public statements6 underscore that the removal of danger trees is

neither discretionary nor grounded in public policy. In a July 2016 publication, BPA states

BPA also routinely surveys areas . . . to watch for “danger trees,” large trees that

may fall over on power lines . . . . When [natural resources specialists] determine

that trees in or adjacent to the right-of-way are a current or future hazard to the

transmission line, those trees will be removed.

Curtis Aff. Ex. V at 3, ECF No. 161-22 (emphasis added). A February 2011 publication similarly

states “BPA must identify and arrange to cut trees that, although outside the rights-of-way, may

threaten the transmission line because they could fall into the conductor (wires) or structures

. . . . BPA will arrange to remove these trees.” Curtis Aff. Ex. L at 2-3, ECF No. 161-12

(emphasis added). BPA confirmed that the February 2011 statements accurately describe its

policies. Sheppard Dep. 116:15-117:2.

Assuming the need to acquire legal rights or the need to consult with the Forest Service

about the timing of removal gives BPA’s crews some discretion, that discretion is grounded in

routine safety maintenance and not in public policy. Sheppard Dep. 66:19-22 (keeping rights of

way clear ensures public safety); see also Chang, 139 F.4th at 1097-98; O’Toole, 295 F.3d at

1036-37 (citing the government’s obligation to prevent its property “from causing harm to others

to the same extent that a private landowner must”); Whisnant v. United States, 400 F.3d 1177,

1182-83 (9th Cir. 2005) (listing cases).

6 Cf. Chang, 139 F.4th at 1097 (citing national park staff members’ statements describing

conduct as routine maintenance in considering whether the discretionary function exception

protected the conduct).

The identification and removal of a fall-into danger tree is not protected by the

discretionary function exception. Immunizing the United States for standard maintenance of the

sort here would run counter to the directive that courts should construe the FTCA’s waiver

broadly and its exceptions narrowly.

B. The Power Lines

The Adams Plaintiffs, Allard Plaintiffs, and Enfield Plaintiffs further allege that BPA’s

policies required the agency to take actions to manage the electricity running through power lines

on September 7, 2020. These allegations focus on inaction prior to the fire (a failure to de-

energize)7 and after vegetation fell on the power lines (preventing the re-energization of the

lines).8 The Court considers these allegations together because they implicate the same policies

and causal nexus (BPA’s failure to prevent electricity from flowing through the power lines).

Some Plaintiffs, however, also allege that BPA negligently constructed, maintained, or

inspected its power lines. Allard FAC ¶ 55; Adams SAC ¶ 1980.c; Enfield Compl. ¶ 57. The

United States does not address these allegations in its motion but aims instead at BPA’s alleged

failure to de-energize the power lines or not to reenergize them after a power failure. The United

States owes the burden to show that the exception applies to “the specific agency action

challenged.” Young, 769 F.3d at 1053; see Schurg v. United States, 63 F.4th 826, 832 (9th Cir.

7 The Adams Plaintiffs and Enfield Plaintiffs argue the de-energization theory. The Adams

Plaintiffs argue BPA failed to de-energize its own Cougar-Holden line, other lines that provided

power to EWEB and LEC, and failed to institute a public-safety power-shutdown. Adams SAC

at ¶ 1680. The Enfield Plaintiffs argue BPA was negligent in “[k]eeping breakers closed during

extremely dangerous wildfire conditions” and further keeping them in automatic reclose. Enfield

Compl. ¶ 57.

8 The Allard Plaintiffs and Enfield Plaintiffs argue the re-energization theory, each arguing BPA

was negligent in “[r]e-energizing its electric utility infrastructure after vegetation fell on its

powerlines.” Allard FAC ¶ 55; Enfield Compl. ¶ 57.

2023). The United States’ motions are denied with respect to the construction, maintenance, and

inspection of the line because it fails to address them.

BPA maintains the Open Access Transmission Tariff (“OATT”). The OATT “defines the

terms and conditions under which [BPA] sell[s] transmission service,” operating as an

overarching service agreement between BPA and other utility providers. Curtis Aff. Ex. B

(“OATT”), ECF No. 161-2; Curtis Aff. Ex. X 4, ECF No. 161-24. The OATT provides standards

for BPA-provided services “in accordance with Good Utility Practice.” OATT at 97. The OATT

defines Good Utility Practice as:

Any of the practices, methods and acts engaged in or approved by a significant

portion of the electric utility industry during the relevant time period, or any of the

practices, methods and acts which, in the exercise of reasonable judgment in light

of the facts known at the time the decision was made, could have been expected to

accomplish the desired result at a reasonable cost consistent with good business

practices, reliability, safety and expedition. Good Utility Practice is not intended to

be limited to the optimum practice, method, or act to the exclusion of all others, but

rather to be acceptable practices, methods, or acts generally accepted in the region,

including those practices required by Federal Power Act Section 215(a)(4).

OATT at 14. Good Utility Practice incorporates by reference the Federal Power Act. OATT at

14. Section 215 of the Federal Power Act creates standards in furtherance of “electric reliability.”

16 U.S.C. § 824o. The Federal Power Act, OATT, and Good Utility Practice are silent on a

public safety power shutoff (“PSPS”) (a policy which guides de-energization when safety is at

issue), and BPA did not otherwise have a PSPS plan in place at the time of the fire. Cathcart

Decl. ¶¶ 3,4 ECF No. 86.

At the first step of applying the discretionary function exception, the Court must assess

whether the policies in question allow for discretion. Lam, 979 F.3d at 678. Operational

decisions involving judgment of non-specific duties are discretionary. Gaubert, 499 U.S. at 331-

32; Navarette v. United States, 500 F.3d 914, 916 (9th Cir. 2007) (holding a “‘Guiding Principle’

[to maintain] health, safety, security and comfort” did not mandate government conduct).

Good Utility Practice, by its text, requires “the exercise of reasonable judgment” in its

goal of “accomplish[ing] the desired result at a reasonable cost consistent with good business

practices, reliability, safety and expedition.” It does not give BPA agents a specific course of

action to follow. It calls for BPA officials to exercise their judgment to pursue general goals

much like the Guiding Principle in Navarette.

Good Utility Practice also did not require BPA to have a PSPS policy in place at the time

of the fire. Good Utility Practice incorporates policies adopted “by a significant portion of the

electric utility industry” and those “generally accepted in the region.” Although at the time of the

Holiday Farm Fire, at least one utility in Oregon had adopted a PSPS and state officials had

called for PSPS plans generally,9 Good Utility Practice offers no metrics or mandatory standard

to discern if a policy has been adopted by “a significant portion of the electric utility industry” or

become “generally accepted in the region.” The policy’s text further requires that generally

accepted practices still be weighed against the competing objectives of reliability, safety, and

expedition. BPA officials therefore had an element of judgment in their conduct.

When the government acts with discretion, that discretion is presumptively grounded in

public policy. Lam, 979 F.3d at 674. Good Utility Practice requires balancing multiple interests,

including “good business practices, reliability, safety and expedition.” Reliability is a central

operational goal of BPA, with transmission operators expected to prioritize keeping the system

running. Sanford Decl. ¶ 3, ECF No. 85. BPA’s System Dispatchers’ Standing Order No. 136

gives dispatchers “the authority . . . to take whatever action is required to preserve the [system’s]

reliable operation,” including de-energizing power lines. Sanford Decl. Ex. A 1, ECF No. 85-1;

9 Levin. Aff. Supp. Allard Pls.’ Resp. Def. United States’ Mot. to Dismiss ¶¶ 14, 15, ECF No.

160.

Curtis Aff. Ex. Z (“Sanford Dep.”) 58:6-8, ECF No. 161-26. BPA operators understand that “the

entire purpose of the scheme” is to keep the power running. Sanford Dep. 67:11-15.

Dispatchers are required to weigh their directive to maintain the system’s reliability

against considerations like safety, expediency, and good business practices before de-energizing

power lines or preventing their re-energization. See Sanford Dep. 74:18-75:13 (expressing risks

to de-energizing equipment like preventing a fire department from pumping water and stating

BPA’s “core mission is to move energy”). In this way, the decision to keep energy in BPA’s

lines is like the decision to cut down the tree in Lam because both require a choice among

competing policy goals. Although BPA dispatchers may rely on professional and technical

experience to choose between the policy goals, the choice itself involves balancing competing

objectives grounded in political, social, or economic policy.

The Enfield, Allard, and Adams Plaintiffs argue the United States cannot show that

allowing the energization of BPA’s power lines implicated policy concerns. The government

need not show it actually engaged in policy-weighing. Terbush, 516 F.3d at 1137 n.5; see also

Lam, 979 F.3d at 674 (“[T]he district court must not focus on or even consider the employee’s

actual thinking about what to do or not do.”). The United States must only show its decisions are

susceptible to policy analysis to invoke the discretionary function exception. Green v. United

States, 630 F.3d 1245, 1251 (9th Cir. 2011). The OATT’s text and the record indicate that BPA’s

decision not to prevent electricity from running through its transmission lines—either by de-

energizing them or preventing their re-energization—is grounded in public policy. The

discretionary function exception bars the claims involving the de-energization or re-energization

of BPA’s power lines.

C. Causation

The United States argues that theories of causation require this Court to dismiss all claims

if it finds, as the Court has here, that the discretionary function exception protects the decision to

leave the power lines energized but not the identification or removal of the danger tree. Courts,

in analyzing the discretionary function exception, “cannot wholly ignore causation concepts

when a robust exercise of discretion intervenes between an alleged government wrongdoer and

the harm suffered by a plaintiff.” Gen. Dynamics Corp. v. United States, 139 F.3d 1280, 1285

(9th Cir. 1998); but see United Cook Inlet Drift Assoc. v. Trinidad Corp. (In re The Glacier Bay),

71 F.3d 1447, 1451 (9th Cir. 1995) (holding that issues of proximate cause went to negligence

and were therefore irrelevant to the discretionary function exception). The United States relies

primarily on General Dynamics, a case plainly distinguishable from this one. In General

Dynamics, the plaintiff sued non-immune federal employees who prepared a report to

circumvent the immunity shielding the federal prosecutors who acted on the report. Id. at 1283.

Because the harm “actually flow[ed] from the prosecutor’s exercise of discretion” and that

discretion was independent of the report, the Court rejected the plaintiff’s “attempt to

recharacterize the action as something else” than an attack on the prosecutors’ actions. Id. at

1286.

The United States contends that leaving the power lines energized is an intervening

discretionary act, cutting off liability for the danger tree claims. Unlike the plaintiff in General

Dynamics, Non-Movants here allege a separate cause-in-fact of their injuries and do not attempt

to reframe harm that actually flows from the decision to leave the power lines energized.

Moreover, courts generally allow remaining claims to proceed after finding at least one alleged

but-for cause is protected by the discretionary function exception. See, e.g., In re The Glacier

Bay, 71 F.3d at 1451 (“Each separate action must be examined to determine whether the specific

actor had discretion of a type Congress intended to shield.”); Terbush, 516 F.3d at 1128-40

(holding the design of a wastewater system was protected by the discretionary function

exception, remanding to determine the exception’s applicability to maintenance of a wastewater

system, and holding that the exception barred a failure to warn claim); Sigman v. United States,

217 F.3d 785, 793-99 (9th Cir. 2000).

The United States has not shown that the Non-Movants’ danger tree claims must be

dismissed because the discretionary function applies to their separate de-energization theory.

CONCLUSION

For the reasons discussed above, Defendant United States’ Motions to Dismiss (ECF

Nos. 84; ECF No. 116; Enfield v. United States, No. 6:25-cv-00554-MTK ECF No. 17) are

DENIED in part and GRANTED in part as follows: the motions are granted with respect to the

Non-Movants claims alleging BPA caused the Holiday Farm Fire by failing to prevent the

energization of its power lines, and those claims are dismissed with prejudice. Defendant United

States’ motions are otherwise denied.

DATED this 11th day of February 2026.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (he/him)

United States District Judge