Green v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY G. GREEN; VICTORIA D. 

GREEN, husband and wife; SILVER

No. 09-16180

STARR DE VARONA; JOHN ELBERT

ERVIN, husband and wife D.C. No.

Plaintiffs-Appellants,  08-311-TUC-CKJ

08-313-TUC-JMR

v.

OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee.



Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

March 9, 2010—San Francisco, California

Filed January 25, 2011

Before: Betty B. Fletcher, Richard R. Clifton and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Concurrence by Judge B. Fletcher

1561

1564 GREEN v. UNITED STATES

COUNSEL

John F. Munger, Adriane J. Parsons, Munger Chadwick,

P.L.C., Tucson, Arizona, for the plaintiff-appellant.

Dennis K. Burke, Christina M. Cabanillas, Charles A. Davis,

Tucson, Arizona, for the defendant-appellee.

GREEN v. UNITED STATES 1565

OPINION

BEA, Circuit Judge:

This case presents the question whether statutory qualified

immunity protects the U.S. Forest Service’s (“Forest Ser-

vice”) failure to notify nearby private property owners that it

intended to light a “backfire”1 to fight a wildfire and its failure

to notify property owners that the backfire had exceeded For-

est Service boundaries near their private properties. Gregory

and Victoria Green, Silver Starr De Varona, and John Elbert

Ervin (“Appellants”) appeal the district court’s dismissal for

lack of subject matter jurisdiction of their Federal Tort Claims

Act (“FTCA”), 28 U.S.C. § 1346(b), action for damages

against the United States. Appellants are neighboring land-

owners whose property was burned as a consequence of alleg-

edly negligent fire suppression activities conducted by the

Forest Service in its efforts against the “Bullock Fire,” a wild-

fire that was discovered burning in the Coronado National

Forest in Arizona on May 21, 2002, and which ultimately

burned over 30,000 acres. The district court held the United

States was immune from Appellants’ action because of the

discretionary function exception to the FTCA. We reverse the

district court because, although no statute or agency policy

dictates the precise manner in which the Forest Service must

act when it lights a backfire, there is no evidence in the record

that the Forest Service’s failure to notify the property owners

of the backfire it lighted was susceptible to a policy analysis

grounded in social, economic, or political concerns. See Ter-

bush v. United States, 516 F.3d 1125 (9th Cir. 2008).

1

A “backfire” is a fire set along the inner edge of a fireline to consume

the fuel in the path of a wildfire or change the direction of force of the

fire’s convection column. See http://www.nwcg.gov/pms/pubs/glossary/

information.htm.

1566 GREEN v. UNITED STATES

Background

On or about May 21, 2002, a wildfire was discovered burn-

ing in a remote area of the Coronado National Forest. The

fire, later named the “Bullock Fire,” ended up burning over

30,000 acres of land. At the outset of the Bullock Fire, the

Forest Service set containment boundaries for the fire in its

“Incident Objectives” that were posted for all fire fighting

employees to see. In setting the containment area, the Forest

Service intended to protect all of the private properties, busi-

nesses, and “Special Risk” areas (including radio towers,

observatories, and other facilities) located near or within the

Coronado National Forest.

Firefighters started a backfire near Appellants’ private

properties, and did not take any action to protect Appellants’

properties then or later. The Appellants’ properties were

clearly marked on maps the Forest Service had, and Appel-

lants had advised Forest Service personnel that Appellants’

properties were threatened by the fire. Despite this, Appel-

lants were not informed about the backfire or warned of the

risk the backfire posed to their properties. The backfire came

to exceed the desired containment area and burned Appel-

lants’ properties. Afterward, Forest Service employees admit-

ted that Appellants’ properties were not defended because the

firefighters had not been informed of their existence, and thus,

did not know the properties were at risk.2

2

In their pleadings, Appellants specifically allege that the Forest Service

“fail[ed] to communicate the risk [of the backfire] to the other firefighters

and the [Appellants] (as property owners).” First Amended Complaint at

¶ 10. Appellants also allege the firefighters admitted that they failed to

defend Appellants’ properties or advise the residents about the backfire

because the firefighters were not informed of the properties’ existence by

the Forest Service. Id. at ¶ 11. Appellants further alleged that if the fire-

fighters had been told by the Forest Service of the properties’ existence,

“they would have taken steps to protect [Appellants’] ranches, and warned

the [Appellants] of the risk posed to their ranches.” Id. at ¶ 16. “The negli-

gence of [the Forest Service] resulted in the total destruction of the struc-

tures, fencing, and personal property, as well as the devastation of its trees

and substantial erosion of the soils and creek bank of [Appellants’] ranch.”

Id. at ¶ 2.

GREEN v. UNITED STATES 1567

Under Arizona law, had the firefighters been private per-

sons under similar circumstances, they would have been liable

pursuant to Arizona Revised Statutes (“A.R.S.”) § 13-

1706(A) for damages realized as a direct and proximate result

of their setting a fire on one’s own property which then

burned Appellants’ properties. Pursuant to A.R.S. § 13-2404,

had the firefighters been private persons, they would face lia-

bility for refusing to help extinguish the fire or for failing to

protect Appellants’ properties.

Appellants Gregory and Victoria Green, Silver Starr De

Varona, and John Ervin filed virtually identical complaints

against the United States under the FTCA, which alleged the

Forest Service’s negligence during its efforts to suppress the

Bullock Fire damaged their properties. The cases were con-

solidated and the United States moved for their dismissal

under Fed. R. Civ. P. 12(b)(1) for lack of subject matter juris-

diction based on the discretionary function exception to the

FTCA, 28 U.S.C. § 2680(a).3 In response, Appellants moved

to amend their complaint, alleging the Forest Service set the

fire for “fuel reduction purposes and not for suppression of

the Bullock Fire, in blatant violation of policy and regula-

tions.” The district court held there was no evidence in the

record to support Appellants’ new contention, denied Appel-

lants’ motion to amend, and granted the United States’ motion

to dismiss on the ground the discretionary function exception

shielded the United States from suit. This appeal timely fol-

lowed.

Standard of Review

This court reviews de novo a district court’s determination

3

On a motion to dismiss for lack of subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1), proof of jurisdictional facts may be supplied by

affidavit, declaration, or any other evidence properly before the court, in

addition to the pleadings challenged by the motion. Corrie v. Caterpillar,

Inc., 503 F.3d 974, 980 (9th Cir. 2007).

1568 GREEN v. UNITED STATES

that it lacks subject matter jurisdiction under the FTCA and

a district court’s application of the FTCA’s discretionary

function exception. Terbush, 516 F.3d at 1125. The plaintiff

has the burden of showing there are genuine issues of material

fact as to whether the exception should apply, but the govern-

ment bears the ultimate burden of establishing that the excep-

tion applies. Miller v. United States, 163 F.3d 591, 594 (9th

Cir. 1998).4

Analysis

[1] The FTCA waives the federal government’s sovereign

immunity for tort claims arising out of the negligent conduct

of government employees and agencies in circumstances

where the United States, if a private person, would be liable

to the claimant under the law of the place where the act or

4

In Miller, this court held the implementation of a government safety

program with respect to fighting forest fires involved balancing competing

policy interests, and thus, the discretionary function exception applied.

163 F.3d at 597. Miller sued the United States under the FTCA for the

Forest Service’s alleged negligent handling of a forest fire that spread

from the Ochoco National Forest onto Miller’s property, causing damage.

Id. at 592. The district court granted the United States’s motion for sum-

mary judgment on the ground the discretionary function exception applied.

Id. We affirmed. Id. As to the first prong of the discretionary function

exception, we noted there were “no specific directives that mandate spe-

cific action in a multiple fire situation.” Id. at 595. Although there were

general firefighting guidelines, those guidelines did not tell the firefighters

specifically how to fight the fire. Id. Hence, the government had discretion

to choose the methods as to how to fight the fire. As to the second prong,

we held the Forest Service’s discretion in choosing how to fight the fire

was susceptible to public policy analysis. Id. at 595-96. The Forest Service

manual stated its policy was to “[c]onduct fire suppression in a timely,

effective, and efficient manner with a high regard for public and firefighter

safety.” Id. at 595. Accordingly, we held “[t]hese stated objectives and

policies demonstrate that the Forest Service’s decision regarding how to

attack a fire involved balancing considerations including cost, public

safety, firefighter safety, and resource damage. These considerations

reflect the type of economic, social, and political concerns that the discre-

tionary function exception is designed to protect.” Id.

GREEN v. UNITED STATES 1569

omission occurred. Terbush, 516 F.3d at 1128-29. However,

the discretionary function exception provides an exception to

the waiver of immunity from suit under the FTCA for “[a]ny

claim . . . based upon the exercise or performance or the fail-

ure to exercise or perform a discretionary function or duty on

the part of a federal agency or an employee of the Govern-

ment, whether or not the discretion involved be abused.” 28

U.S.C. § 2680(a). If the exception applies, immunity is rein-

stated.

[2] The discretionary function exception “marks the

boundary between Congress’ willingness to impose tort liabil-

ity upon the United States and its desire to protect certain

governmental activities from exposure to suit by private indi-

viduals.” Berkovitz, 486 U.S. at 536. According to the

Supreme Court, “[t]he basis for the discretionary function

exception was Congress’ desire to prevent judicial second-

guessing of legislative and administrative decisions grounded

in social, economic, and political policy through the medium

of an action in tort.” Id.

[3] As such, the Supreme Court has created a two-step test

that governs the applicability of this exception. Terbush, 516

F.3d at 1129. The first step is to determine whether a federal

statute, regulation, or policy mandated a specific course of

action, or whether the government actor retained an element

of judgment or choice with respect to carrying out the chal-

lenged action. Id. If the government action did involve choice

or judgment, the second step is to determine “whether that

judgment is of the kind that the discretionary function excep-

tion was designed to shield, namely, only governmental

actions and decisions based on considerations of public poli-

cy.” Id. (internal quotations omitted). If the challenged action

satisfies both of these two prongs, that action is immune from

suit—and federal courts lack subject matter jurisdiction—

even if the court thinks the government abused its discretion

or made the wrong choice. Id.

1570 GREEN v. UNITED STATES

1. Discretion

[4] Appellants do not challenge the Forest Service’s deci-

sion to light the backfire. Instead, they challenge “the Forest

Service’s actions surrounding that decision” (i.e., failure to

notify Appellants of the backfire, failure to inform firefighters

about and protect their properties). Appellants contend the

Forest Service’s actions relating to the backfire fall outside of

the discretionary function exception because the Forest Ser-

vice failed to adhere to requirements found in the Forest Ser-

vice Manual (“Service Manual”) and the Coronado Forest

Fire Management Plan (“Management Plan”).

An agency must exercise judgment or choice where no stat-

ute or agency policy dictates the precise manner in which the

agency is to complete the challenged task. Childers v. United

States, 40 F.3d 973, 976 (9th Cir. 1995). Although “standards

and procedures outline certain requirements for fire suppres-

sion, they do not eliminate discretion because they do not tell

firefighters how to fight the fire.” Miller, 163 F.3d at 595.

[5] Although the record before this court does not contain

the Service Manual provisions Appellants cite on appeal,5 the

language of the Service Manual that Appellants quote in their

briefing does not support Appellants’ claim that Forest Ser-

vice regulations prescribe a particular course of action once

the decision was made to light the backfire. The quotes are:

(1) a line officer is responsible for ensuring “that the public

and cooperators are informed of the selected alternatives [in

deciding on wildfire suppression efforts]”; and (2) “FIRE

5

Appellants’ Complaint and Reply to Defendant’s Motion to Dismiss

quoted a number of Service Manual provisions, but Appellants did not

attach as an exhibit the Service Manual in effect at the time of the Bullock

Fire (May 2002). The district court discovered that a number of the Ser-

vice Manual provisions that Appellants quoted were not in effect in May

2002; indeed, some provisions did not take effect until as late as 2005.

Appellants also failed to provide this court a copy of the Service Manual

in effect in May 2002.

GREEN v. UNITED STATES 1571

SUPPRESSION SAFETY. All activities shall reflect a com-

mitment to firefighter and public safety as a first priority.”

These quoted provisions do not prescribe a mandatory course

of action, and indeed, this court has previously found very

similar Forest Service fire-fighting provisions discretionary.

Miller, 163 F.3d 591.6

Appellants also contend the Forest Service breached the

following “Prevention Objective” of the Management Plan,

dated April 2002 (one month before the Bullock Fire): “Each

District will also develop and maintain annually a Wild-

land/Urban Interface map. This map will identify all private

land within and around District boundaries . . . and will list

owners of the property, telephone numbers, structures and

improvements, etc.” Appellants’ claim fails because the

development of the map is an “objective,” which contains no

certain date by which the objective must be completed and

6

The Forest Plan cited in Miller outlines various “standards” that are

mandatory requirements under the plan. The Millers specifically pointed

to language in the plan that required employees to “(1) monitor current

and recent fire reports to target specific risks; (2) apply aggressive sup-

pression action to wildfires that threaten assets, including private property,

by initial attack; (3) provide equipment outside of the fire management

organization to assist in the initial attack; and (4) meet the goal of control-

ling the fire by directly addressing the fire on the ground and preparing an

escaped fire analysis where appropriate.” Miller, 163 F.3d at 594. Further,

the Millers cited the Forest Service Mobilization Guide, which “provides

that an employee must (1) report a discovered wildfire and take appropri-

ate action until relieved; (2) not pass up an unmanned fire, even if the

employee is not rated as meeting primary firefighter fitness standards; if

the employee is the first qualified firefighter to arrive at the fire, (3)

assume Incident Commander status until formally relieved; (4) not hesitate

to use cooperator crews within the operation area; and if dispatcher, (5)

assure sufficient initial attack forces are available within established time

standards.” Id. We held the Forest Plan standards and Mobilization Guide,

which provide more guidance than the standards at issue here, did not

eliminate discretion. Id.

1572 GREEN v. UNITED STATES

does not “dictate[ ] the precise manner in which the agency is

to complete the challenged task.” Childers, 40 F.3d at 976.7

2. Policy Considerations

[6] Even though the Forest Service retained discretion in

fighting the Bullock Fire, we must consider whether that dis-

cretion involved the type of public policy judgment that the

discretionary function exception is designed to shield. Miller,

163 F.3d at 593. The discretionary function exception protects

only government actions and decisions based on social, eco-

nomic, and political policy. Id. “The challenged decision need

not be actually grounded in policy considerations, but must

be, by its nature, susceptible to a policy analysis.” Id.

In Miller, the Forest Service failed to contain the “Bald

Butte” fire due to the unavailability of requested air and

ground support when the fire was first spotted. Miller, 163

F.3d at 592. Shortly after the fire was spotted, the fire was

declared “escaped” and the fire management officer for the

local ranger district determined it was unsafe at that time to

commit resources to the fire. Id. On-the-ground fire suppres-

sion efforts did not occur until the day after the fire was spot-

ted. Id. The fire joined two other fires and crossed onto the

Millers’ property. Id.

[7] We held in Miller that the Forest Service’s choices in

how to fight a fire are “susceptible to a policy analysis

grounded in social, economic, or political concerns.” Id. at

595. Looking to the Forest Service Manual, we held the Ser-

vice Manual’s stated objectives and policies demonstrated:

7

Moreover, the lack of a Wildland/Urban Interface map is irrelevant to

Appellants’ claims because the Appellants’ alleged they made the Forest

Service aware of their properties. De Varona’s complaint states De Verona

“placed numerous telephone calls to [Forest Service] employees advising

of the location of the two privately owned ranches in the days just prior

to the lighting of the [backfire], and as it was burning.”

GREEN v. UNITED STATES 1573

[T]he Forest Service’s decision regarding how to

attack a fire involved a balancing of considerations,

including cost, public safety, firefighter safety, and

resource damage. These considerations reflect the

type of economic, social and political concerns that

the discretionary function exception is designed to

protect.

Id. (emphasis added). We referred to two lower court deci-

sions that held decisions regarding the allocation of fire sup-

pression resources are grounded in public policy because the

Forest Service is “required to balance the value of communi-

cations installations, private homes, endangered species, and

other resources.” Id. (quoting Parsons v. United States, 811 F.

Supp. 1411, 1420 (E.D. Cal. 1992)8 and Defrees v. United

States, 738 F. Supp 380, 385 (D. Or. 1990)9). In the instant

case, however, the Forest Service’s decisions regarding “how

8

In Parsons, owners of timber that was destroyed during a wildland fire

in a national forest sought damages under the FTCA, alleging the negli-

gence of various Forest Service employees during attempts to fight the fire

proximately caused destruction of their property. Parsons alleged the fol-

lowing negligent acts, among others: failure to secure adequate resources

to contain the fire; failure to implement a strategy properly to fight the

fire; and inadequate communications system during the fire. The district

court granted the government’s motion for summary judgment on the

ground the discretionary function exception applied to the fire fighters’

alleged negligent acts. Specifically, the district court held (1) Parsons

failed to cite an applicable mandatory directive, and the challenged actions

were discretionary; and (2) the Forest Service firefighters were required to

balance social and economic values to minimize damage from numerous

fires.

9

In Defrees, plaintiffs sued the Forest Service for the alleged negligence

of firefighters in combating a wildland fire that destroyed plaintiffs’ prop-

erty. The Forest Service had deployed only a three-person crew to attack

the fire at issue which, given high winds, proved inadequate. Other fires

had been assigned a higher priority than the fire at issue. The court con-

cluded that the discretionary function exception barred liability because:

In establishing priorities, assigning government personnel and

equipment, and deciding what private resources, if any should be

used, these employees were required to make social and eco-

nomic policy decisions. They were required to balance the value

of communications installations, private homes, endangered spe-

cies, and other resources.

Defrees, 811 F.Supp. at 385.

1574 GREEN v. UNITED STATES

to attack a fire” and the allocation of fire suppression

resources are not at issue.

[8] Instead, Appellants contend the Forest Service’s failure

to notify Appellants before and after the Forest Service lit the

backfire is not subject to the discretionary function exception.

We agree with Appellants because, unlike Miller, there is no

evidence in the record to support the Forest Service’s conten-

tion that the nature of its actions in this case—i.e., its deci-

sions when and whether to communicate directly with private

citizens whose properties might have been in harm’s way—

are susceptible to policy analysis. There is no evidence, for

example, that the Forest Service must determine how to allo-

cate personnel during firefighting operations between contact-

ing citizens and direct firefighting activity, or that the Forest

Service must determine during firefighting operations how to

allocate its communications resources between community-

wide distribution (such as newspapers and radio stations) and

direct contact with private citizens (such as phone calls or

door-to-door contacts). If the Appellants had been notified of

the proposed backfire, they might have been able to take mea-

sures to protect their properties, or at least ensured the Forest

Service took measures to do so. For purposes of this appeal

from a motion to dismiss, we find Appellants’ pleadings ade-

quately state such a possibility. Accordingly, and in light of

the specific record in this case, we disagree with the district

court’s application of the discretionary function exception.

Conclusion

[9] For the foregoing reasons, we reverse the district

court’s dismissal of Appellants’ claim for lack of subject mat-

ter jurisdiction and remand for further proceedings consistent

with this opinion.

REVERSED AND REMANDED.

GREEN v. UNITED STATES 1575

B. FLETCHER, Circuit Judge, specially concurring:

I concur in the result. I write separately, however, to clarify

our holding in Miller v. United States, 163 F.3d 591 (9th Cir.

1998), and to emphasize that the discretionary function excep-

tion does not apply to the government’s failure to warn of an

agency-created hazard.

I.

The majority concludes that the Forest Service’s decisions

regarding “how to attack a fire” and “the allocation of fire

suppression resources” are susceptible to a policy analysis

grounded in social, economic or political concerns, citing our

decision in Miller. Opinion at 1573-74. I disagree with the

majority’s suggestion that Miller immunizes the government

from liability for all decisions made in the course of fighting

any fire, particularly all decisions involving “the allocation of

fire suppression resources.”

Miller involved a very different factual scenario from the

one at issue here: a lightning storm in the Ochoco National

Forest lit several fires spread over a wide area. 163 F.3d at

593, 595. The Forest Service was unable to send aerial fire

retardants, smokejumpers or fire engines to fight one of the

fires (the Bald-Butte fire) because those resources were

already committed to other areas. Id. at 592. The district fire

management officer concluded that a direct ground-based

attack on the Bald-Butte fire would be ineffective, and

directed Fire Service officials to find and suppress other small

fires. Id. The Bald-Butte fire eventually joined with two other

fires and destroyed the Millers’ property. Id. at 593.

We concluded that the Forest Service’s guidelines and pre-

planned response levels, which dictated specific actions for

Forest Service personnel to take in fighting fires, did not

apply to a multiple-fire situation, where “the inevitable com-

petition for resources dictates discretion.” Id. at 595. Instead,

1576 GREEN v. UNITED STATES

we noted that the Fire Service’s Mobilization Guide specifi-

cally conferred discretion to fight a multiple-fire situation. Id.

at 594-95.

Turning to the question of whether the Forest Service’s

decision not to commit resources to fighting the Bald-Butte

Fire was susceptible to a policy analysis, we looked to three

separate objectives and policy considerations which affected

the Forest Service’s decision-making process when fighting a

fire:

5130.2-Objective. The objective of fire suppression

is to suppress wildfires at minimum cost consistent

with land and resource management objectives and

fire management direction as stated in fire manage-

ment action plans.

5130.3-Policy. Conduct fire suppression in a timely,

effective, and efficient manner with a high regard for

public and firefighter safety.

5131-Initial Action . . . 2. Initiate initial suppression

action that provides for the most reasonable proba-

bility of minimizing fire suppression costs and

resource damage, consistent with probable fire

behavior, potential resource and environmental

impacts, safety, and smoke management consider-

ations.

163 F.3d at 595. We noted that “[t]hese stated objectives and

policies demonstrate that the Forest Service’s decision regard-

ing how to attack a fire involved a balancing of consider-

ations, including cost, public safety, firefighter safety, and

resource damage.” Id. These considerations, we concluded,

“reflect the type of economic, social and political concerns

that the discretionary function exception is designed to pro-

tect.” Id.

GREEN v. UNITED STATES 1577

Contrary to the majority’s suggestion, Miller simply does

not stand for the proposition that all of the Forest Service’s

decisions regarding how to fight any fire are susceptible to a

policy analysis because, in fighting a fire, the Forest Service

must allocate fire suppression resources.1 See Opinion at

1573-74. Instead, Miller stands for the proposition that the

Forest Service’s decision not to attack one fire when faced

with multiple, simultaneous fires is susceptible to policy anal-

ysis because it requires the Forest Service to balance the allo-

cation of resources among multiple emergency situations, in

addition to considering public safety, firefighter safety,

resource damage, land management, environmental impacts,

and efficiency. See 163 F.3d at 596. The allocation of

resources was important in Miller only because in a multi-fire

situation, the “inevitable competition for resources” dictated

that the Fire Service exercise its discretion. 163 F.3d at 595.

Thus, I disagree with the majority’s suggestion that the dis-

cretionary function exception would necessarily apply if the

Forest Service had to “determine how to allocate personnel

during firefighting operations between contacting citizens and

directing firefighting activity” or “allocate its communications

resources between community-wide distribution and direct

contact with private citizens.” See Opinion at 1574.

We have repeatedly held that the discretionary function

exception does not apply to decisions based solely on the allo-

cation of scarce resources. See Terbush v. United States, 516

F.3d 1125, 1134 & n.4 (9th Cir. 2008) (our “case law frowns

upon the government relying solely on fiscal policy and bud-

getary constraints as the ‘protected’ policy considerations pro-

tected by the exception”); Whisnant v. United States, 400 F.3d

1177, 1184 (9th Cir. 2005) (“[W]e decline to permit the gov-

ernment to use the mere presence of budgetary concerns to

1

Indeed, in this case, there is no evidence in the record that the Forest

Service was unable to commit all of the necessary resources to fight the

Bullock Fire before it decided to light the backfire.

1578 GREEN v. UNITED STATES

shield allegedly negligent conduct from suit under the

FTCA”); O’Toole v. United States, 295 F.3d 1029, 1037 (9th

Cir. 2002) (stressing that the discretionary function exception

must be construed narrowly because “[e]very slip and fall,

every failure to warn, every inspection and maintenance deci-

sion can be couched in terms of policy choices based on allo-

cation of limited resources”). Even assuming that its decision

not to notify Appellants was based on the allocation of

resources, the government cannot claim that the discretionary

function exception applies to its actions in this case.

II.

My reservations about the majority’s analysis of Miller do

not detract from my agreement with the majority’s conclusion

that the failure to notify Appellants before and after the Forest

Service lit the backfire is not susceptible to a policy analysis

grounded in social, economic, or political concerns. We have

held that “[a] decision not to warn of a specific, known hazard

for which the acting agency is responsible is not the kind of

broader social, economic or political policy decision that the

discretionary function exception is intended to protect.” Sut-

ton v. Earles, 26 F.3d 903, 910 (9th Cir. 1994) (concluding

that the decision not to post speed limit due to agency-created

underwater hazard was not subject to the discretionary func-

tion exception); see also Oberson v. USDA, 514 F.3d 989, 998

(9th Cir. 2008) (holding that the agency was not protected by

the discretionary function exception when it raised the speed

limit on a snowmobile trail and then failed to warn of trail

conditions that would be hazardous at that speed); Boyd v.

United States, 881 F.2d 895, 897-98 (10th Cir. 1989) (holding

that the discretionary function exception does not apply to

failure to warn swimmers of the dangers posed by the govern-

ment’s zoning decision which permitted boats in a lake area).

Where the government creates a danger, it must warn the

public of that danger. To hold otherwise would unfairly allo-

cate “the entire burden” of government-created dangers to the

GREEN v. UNITED STATES 1579

individual, “leav[ing] him destitute or grievously harmed,”

and directly contravene the FTCA’s liberal purposes. Rayo-

nier Inc. v. United States, 352 U.S. 315, 320 (1957).

In sum, though I disagree with the majority’s apparent con-

clusion that Miller extends the discretionary function excep-

tion to all government decisions regarding how to fight a fire

because all such decisions involve the allocation of fire-

fighting resources, I agree with its holding that the govern-

ment’s decision not to warn Appellants of its decision to light

the backfire is not susceptible to a policy analysis. Thus, I

concur in the result.