# Foster Logging, Inc. v. United States

> Court of Appeals for the Eleventh Circuit · August 24, 2020 · 973 F.3d 1152

URL: https://www.frixlaw.com/law-library/cases/4558232

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 24, 2020
- **Citations:** 973 F.3d 1152
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4558232

## How later opinions describe it (automated extraction)

- holding that the first step of the discretionary function test is satisfied when no regulation mandated specific conduct in the situation
- affirming the dismissal of an FTCA claim that alleged the Forest Service was negligent in handling a controlled burn

## Opinion text

Case: 18-15033 Date Filed: 08/24/2020 Page: 1 of 132

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 18-15033
________________________

D.C. Docket No. 4:18-cv-00058-WTM-JEG

FOSTER LOGGING, INC.,
AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY,
as subrogee of Foster Logging, Inc.,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
________________________

(August 24, 2020)

Before JORDAN, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge:
Case: 18-15033 Date Filed: 08/24/2020 Page: 2 of 132

Plaintiffs–Appellants Foster Logging, Inc. and American Guarantee &

Liability Insurance Company (“American Guarantee”) appeal the district court’s

dismissal of their complaint, pursuant to Fed. R. Civ. P. 12(b)(1), for lack of

jurisdiction. Their complaint alleged negligence claims against Defendant–

Appellee the United States under the Federal Tort Claims Act (“FTCA”). In

response, the United States moved to dismiss the complaint based on the

discretionary-function exception to the FTCA’s waiver of sovereign immunity. On

appeal, Plaintiffs argue the district court (1) improperly considered facts outside

the allegations in the complaint, and (2) misapplied the discretionary-function

exception to FTCA liability. After review and with the benefit of oral argument,

we affirm.

I. PROCEDURAL BACKGROUND

A. The Complaint

In their complaint, Plaintiffs alleged that the Fort Stewart-Hunter Army

Airfield Forestry Branch (“U.S. Forestry Branch”) “negligently failed to observe,

monitor[,] and maintain” a controlled fire burn in area B-20 near Fort Stewart, a

military base in Georgia, resulting in damage to Foster Logging’s property.1 The

1
We emphasize that our review of Plaintiffs’ claims is limited to the Defendant’s alleged
negligence in failing to observe, monitor, and maintain the controlled burn. As we note below,
Plaintiffs have never challenged the Defendant’s decision to initiate the burn. And to the extent
that Plaintiffs would purport to proceed under the theory that the Defendant negligently failed to
warn them that it was initiating the burn, that argument is not properly before us. While at oral

2
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complaint alleged that Plaintiff Foster Logging entered into a wood service

contract with S.A. Allen, Inc., to cut and convert wood on the Fort Stewart

Reservation near the Luzon Range in area B-19.5. Plaintiff American Guarantee

provided insurance coverage for multiple items on Foster Logging’s Schedule of

equipment. On April 20, 2017, the U.S. Forestry Branch initiated a controlled fire

burn in area B-20 adjacent to the area where Foster Logging was harvesting

timber.

The following day, a Friday, Foster Logging parked its equipment and left

area B-19.5 around 2:30 p.m. According to the complaint, the U.S. Forestry

Branch “negligently failed to observe, monitor[,] and maintain said burn, allowing

fire to escape area B-20 and to enter the land and pine trees on which [Foster

Logging] was logging.” As the fire entered area B-19.5, certain equipment and

property of Foster Logging were burned and destroyed, causing loss of equipment,

fuel, and harvested timber, among other things.

As a result of the damage to the property, Plaintiff Foster Logging was

unable to harvest timber for three days and was required to rent equipment to

continue harvesting timber in area B-19.5. Plaintiff American Guarantee, as Foster

argument Plaintiffs’ counsel briefly discussed failure to warn, it was not clearly raised in the
complaint or at any point during the district court proceedings, nor was it sufficiently developed
in Plaintiffs’ brief on appeal. “Generally, [a]rguments raised for the first time on appeal are not
properly before this Court.” Waldron v. Spicher, 954 F.3d 1297, 1304 (11th Cir. 2020)
(quotation marks omitted).
3
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Logging’s insurer, ultimately paid Foster Logging a total of $247,384.12 for its

insured losses. Foster Logging also incurred $125,110.25 in out-of-pocket

damages beyond the indemnity payments.

B. District Court Proceedings

Subsequently, the Plaintiffs Foster Logging and American Guarantee

brought the instant suit. American Guarantee sought to recover $247,348.12, plus

costs, as recompense for the payments it made to Foster Logging for the damage to

its equipment, which American Guarantee alleged resulted from the U.S. Forestry

Branch’s failure to properly observe, monitor, and maintain the controlled burn.

Foster Logging sought to recover the additional $125,120.52 in out-of-pocket

spending for uncovered losses, plus costs.

The Defendant United States moved to dismiss the complaint under Fed. R.

Civ. P. 12(b)(1), arguing the district court lacked jurisdiction to consider Plaintiffs’

claims because the government retained its sovereign immunity. The Defendant

argued that the complaint failed to allege a plausible claim that fell outside the

discretionary-function exception to the FTCA’s waiver of sovereign immunity.

Citing United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267 (1991), and

applying the two-part test articulated in that decision, the Defendant argued the

challenged conduct alleged in the complaint—the observation, monitoring, and

4
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maintenance of the controlled burn—(1) involved an element of judgment or

choice; and (2) was susceptible to policy analysis.

In response, the Plaintiffs argued the Defendant United States had waived its

immunity under the FTCA because the U.S. Forestry Branch’s failure to observe,

monitor, and maintain the controlled burn in a safe manner was not a permissible

exercise of policy judgment. Importantly, Plaintiffs did not dispute that the

challenged conduct involved an element of judgment or choice. Rather, Plaintiffs

focused their analysis solely on whether the U.S. Forestry Branch officials

exercised that judgment in a permissible manner.

The district court ultimately granted the United States’ motion and dismissed

the complaint. The district court concluded that the negligence claim alleged in the

complaint fell within the FTCA’s discretionary-function exception, and thus the

court lacked jurisdiction over the complaint. The district court reasoned that the

U.S. Forestry Branch’s decisions as to how to monitor and maintain the fire (1)

involved an element of judgment or choice, and (2) implicated important policy

considerations.2 This appeal followed.

2
As an alternative to denying the Defendant’s motion to dismiss, Plaintiffs’ response to
the motion asked the district court to grant them leave to amend the complaint following a
reasonable period within which to take limited discovery related to subject matter jurisdiction.
On appeal, however, Plaintiffs do not argue that they were entitled to discovery or to amend the
complaint prior to the district court’s ruling.
They also do not argue that discovery perhaps would have led to some as-yet-unknown
internal policy or directive of the U.S. Forestry Branch that would have removed all judgment or

5
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II. STANDARD OF REVIEW

In reviewing the district court’s dismissal of Plaintiffs’ complaint, we accept

the allegations in the complaint as true, and we review de novo the district court’s

application of the discretionary-function exception to the FTCA’s waiver of

sovereign immunity. Douglas v. United States, 814 F.3d 1268, 1273–74 (11th Cir.

2016); Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir. 1998); see also JBP

Acquisitions, LP v. United States ex rel. FDIC, 224 F.3d 1260, 1263 (11th Cir.

2000) (“We review de novo the district court’s dismissal of an action for lack of

subject matter jurisdiction and its interpretation and application of statutory

provisions.”).

We first outline the discretionary-function exception to the FTCA’s waiver

of sovereign immunity and the Supreme Court’s two-part test in Gaubert.

III. DISCRETIONARY-FUNCTION EXCEPTION

Plaintiffs cannot sue the United States unless the United States

unequivocally has waived its sovereign immunity.3 See Zelaya v. United States,

781 F.3d 1315, 1321 (11th Cir. 2015) (“It is well settled that the United States, as a

sovereign entity, is immune from suit unless it consents to be sued.”). The FTCA

choice in the first instance. Indeed, Plaintiffs have never contested the first part of Gaubert’s
test. See infra n.5.
3
If sovereign immunity applies, a court lacks subject matter jurisdiction to consider a
claim. Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015).
6
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waives the United States’ sovereign immunity from suit in federal courts for its

employees’ negligence. See 28 U.S.C. § 1346(b).

Congress, however, has carved out certain exceptions to that limited waiver,

including the discretionary-function exception in 28 U.S.C. § 2680(a).4 The

discretionary-function exception provides that, notwithstanding § 1346(b), the

United States preserves its sovereign immunity as to “[a]ny claim . . . based upon

the exercise or performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or an employee of the Government,

whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a) (emphasis

added). “[T]he purpose of the exception is 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.” Gaubert, 499 U.S. at 323, 111 S.

Ct. at 1273 (quotation marks omitted).

The Supreme Court has developed a two-part test that courts must apply in

determining whether challenged conduct falls within the discretionary-function

exception to the FTCA’s waiver of sovereign immunity. See id. at 322, 111 S. Ct.

at 1273. First, a court examines the nature of the challenged conduct or act to

determine whether it is “discretionary in nature,” meaning that it involves “an

4
The exceptions found in the Act are codified in 28 U.S.C. § 2680, and “must be strictly
construed in favor of the United States.” Zelaya, 781 F.3d at 1322 (quotation marks omitted).
7
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element of judgment or choice.” Id. at 322, 111 S. Ct. at 1273 (quotation marks

omitted); see also Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997)

(quoting Gaubert). Second, if the challenged conduct involves an element of

judgment or choice, a court then determines “whether that judgment is of the kind

that the discretionary function exception was designed to shield.” Id. at 322–23,

111 S. Ct. at 1273 (quotation marks omitted).

As to the first part of the test, “if a ‘federal statute, regulation, or policy

specifically prescribes a course of action for an employee to follow,’” there is no

judgment or choice involved. Id. at 322, 111 S. Ct. at 1273 (quoting Berkovitz v.

United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958–59 (1988)); see also

Phillips v. United States, 956 F.2d 1071, 1076 (11th Cir. 1992). The inquiry

focuses on “whether the controlling statute or regulation mandates that a

government agent perform his or her function in a specific manner.” Hughes v.

United States, 110 F.3d 765, 768 (11th Cir. 1997) (quotation marks omitted).

As an initial matter, there is no contention on appeal—nor has there been at

any point in the proceedings—that the first part of the Gaubert test is not met in

this case. Plaintiffs have not identified, either in the district court, in their briefs on

appeal, or at oral argument, any “federal statute, regulation, or policy specifically

prescrib[ing] a course of action” that U.S. Forestry Branch officials were to follow

8
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after initiating a controlled burn. 5 See Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273

(quotation marks omitted). Thus, there was at least some element of judgment or

choice at play in how the U.S. Forestry Branch observed, monitored, and

maintained the controlled burn.

In this particular appeal, our analysis is therefore limited to the second part

of Gaubert’s test: whether the judgment or choice that was exercised by the U.S.

Forestry Branch is “the type of judgment that the discretionary function exception

was designed to shield.” Hughes, 110 F.3d at 768. Stated another way, the issue

here is whether “the nature of the actions taken” by U.S. Forestry Branch officials

in observing, monitoring, or maintaining the controlled burn were “susceptible to

policy analysis.” Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275. This inquiry is not

concerned with “the subjective intent of the government employee” or whether he

or she “actually weighed social, economic, and political policy considerations

before acting.” Ochran, 117 F.3d at 500.

Here, as to the second part of Gaubert’s test, the district court concluded that

the U.S. Forestry Branch’s decisions related to its monitoring and maintenance of a

controlled burn “involved an element of judgment and implicated important policy

5
Plaintiffs do not argue that the U.S. Forestry Branch officials had no room to exercise
judgment or choice (i.e., no discretion) in their decisions about how they observed, monitored,
and maintained the burn. See supra n.2. Rather, Plaintiffs have steadfastly focused their
argument on the second part of Gaubert’s test, insisting that any negligent decisions that allowed
the fire to spread to private property and destroy Plaintiffs’ private equipment would not have
been a permissible exercise of that judgment or choice.
9
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considerations.” The district court cited several policy implications the U.S.

Forestry Branch employees might reasonably need to consider, including the safety

of citizens in the area, the safety of those monitoring the fire, the management of

limited resources used to control a fire, and the protection of surrounding natural

resources, as well as unique security and military concerns due to the burn’s

proximity to the Fort Stewart Military Base.

IV. POLICY CONSIDERATIONS NOT ALLEGED IN THE COMPLAINT

As a threshold claim regarding the second part of Gaubert’s test, Plaintiffs

argue the district court’s discussion of particular social, economic, political, and

public policy considerations was improper because (1) the court should have

limited its consideration to the allegations on the face of the Plaintiff’s complaint,

(2) the complaint did not include any allegations about the policy considerations at

play, and (3) the complaint did not include any factual allegations as to what

actions the U.S. Forestry Branch took in an effort to monitor or maintain the

controlled burn. In the absence of such allegations, Plaintiffs contend it was

improper for the district court (1) to speculate as to what policy concerns might

have been at play, and (2) to adopt facts from other published court decisions

where the government presented evidence that particular policy considerations

actually were at play.

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Plaintiffs’ arguments misunderstand the pleading requirements and the

relevant inquiry underlying the discretionary-function exception. To survive

dismissal, Plaintiffs were required to “allege a plausible claim that falls outside the

discretionary function exception.” Douglas, 814 F.3d at 1276; see also Gaubert,

499 U.S. at 324–25, 111 S. Ct. at 1274–75 (“For a complaint to survive a motion to

dismiss, it 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.”). In other words, Plaintiffs’ complaint must have alleged

facts showing that a government employee engaged in conduct that, by its nature,

is not the kind of conduct that is based on or grounded in considerations of public

policy. Gaubert, 499 U.S. at 324–25, 111 S. Ct. 1274–75.

Here, the Plaintiffs’ complaint identifies the challenged conduct as the U.S.

Forestry Branch’s negligent failure to “observe, monitor[,] and maintain” the

controlled burn once the fire was started. The relevant question, then, is whether

the decisions the U.S. Forestry Branch officials made in planning how to observe,

monitor, and maintain the controlled burn, even if negligent, are the kind of

conduct “susceptible to policy analysis.” Id. at 325, 111 S. Ct. at 1275 (emphasis

added). As to the second step of Gaubert, the issue is not whether the officials or

employees actually weighed any particular policy considerations before taking (or

declining to take) any particular action. See Ochran, 117 F.3d at 500; Hughes, 110

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F.3d at 768. The inquiry here is not fact-based. See Autery v. United States, 992

F.2d 1523, 1530–31 (11th Cir. 1993). Rather, “Gaubert . . . cautions against

conducting a fact-based inquiry into the circumstances surrounding the government

actor’s exercise of a particular discretionary function, urging courts instead to look

to the nature of the challenged decision in an objective, or general sense, and ask

whether that decision is one we would expect inherently to be grounded in

considerations of policy.” Id. (quotation marks omitted).

Further, as to the second part of Gaubert we are not aware of any

precedent—and Plaintiffs cite none—indicating that at the motion-to-dismiss stage,

a federal court must limit its discretionary-function-exception analysis to policy

considerations a plaintiff’s complaint chooses to expressly allege were at play. To

the contrary, this Court previously has affirmed the dismissal of claims under the

discretionary-function exception notwithstanding the apparent absence of any

allegations or evidence concerning actual policy considerations undertaken by the

government employees. See, e.g., Mesa v. United States, 123 F.3d 1435, 1438–39

(11th Cir. 1997) (discussing at length what considerations a DEA agent might

hypothetically weigh in deciding how to locate and identify the subject of an arrest

warrant).

We recognize that the district court referenced two particular court decisions

in which the government presented evidence that certain policy considerations

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actually were at play in controlling forest fires. 6 However, this in no way tainted

the district court’s analysis. If anything, the fact that government officials in

analogous situations were found to have actually weighed public policy

considerations in exercising their discretion is relevant to whether the challenged

discretionary conduct here was “susceptible to policy analysis.” See Gaubert, 499

U.S. at 325, 111 S. Ct. at 1275.

For all of the above reasons, the district court committed no procedural error

in its facial analysis of Plaintiffs’ complaint. Before examining the substantive

application of the discretionary-function exception to the U.S. Forestry Branch’s

conduct, we step back in time to discuss the Supreme Court’s Rayonier decision in

1957.

V. RAYONIER IN 1957

While today we must apply Gaubert’s above-described two-part test,

Gaubert, 499 U.S. at 322–23, 111 S. Ct. at 1273–74, we review Rayonier Inc. v.

6
The district court, in a footnote, cited Miller v. United States, 163 F.3d 591 (9th Cir.
1998) (involving a forest fire), and Thune v. United States, 872 F. Supp. 921 (D. Wyo. 1995)
(involving a controlled burn) for the proposition that other courts have found that the government
must consider a variety of policy implications when deciding how to control a spreading fire. In
Thune, the government presented evidence of the Forest Service Manual, which covers “the
conduct of both conducting controlled fires and fighting wildfires.” See Thune, 872 F. Supp. at
924 (citing the Forest Service Manual, which “outlin[es] factors to be considered in controlled
burns,” as well as “elements to be weighed in efforts to control out of control fires”). The district
court in Thune observed that “if the presence of negligence were allowed to defeat the
discretionary function exception, the exception would prove a meager shield indeed against tort
liability.” Id. at 925 (quoting Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1029
(9th Cir. 1989)).
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United States, 352 U.S. 315, 77 S. Ct. 374 (1957), because it too involved an

FTCA claim based on the government’s negligent management of a forest fire that

spread from government land and damaged plaintiffs’ property. 352 U.S. at 315–

17, 77 S. Ct. at 375. In Rayonier, the government allowed railway trains to run

over a right of way that passed through the government land. Id. at 316, 77 S. Ct.

at 375. The government negligently allowed highly flammable dry grasses, brush,

and other materials to accumulate, and sparks from a railroad engine ignited fires

“on the right of way and adjoining land.” Id. at 316, 77 S. Ct. at 375. After the

fire was “under control” and “substantially out,” certain spots continued to burn

and smolder, but the government kept only a few men guarding the fire, despite

strong winds and the presence of a “tinder-dry” accumulation of debris and dead

logs. Id. at 316, 77 S. Ct. at 375. The winds blew sparks from the smoldering

embers, and the fire “exploded” and spread as far as 20 miles. Id. at 316, 77 S. Ct.

at 375. The forest fire destroyed the plaintiffs’ property. Id. at 316–17, 77 S. Ct. at

375.

In Rayonier, the Supreme Court held that the government could be subject to

suit under the FTCA in cases involving the negligence of government employees

in controlling forest fires. Id. at 317–18, 77 S. Ct. at 375–76. In holding the

government subject to the FTCA suit, the Supreme Court reasoned that “[t]here is

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no justification for this Court to read exemptions into the [FTCA] beyond those

provided by Congress.” Id. at 320, 77 S. Ct. at 377.

Rayonier is not controlling here for two reasons. First and foremost,

Rayonier was not a discretionary-function case. The Supreme Court did not cite or

address the discretionary-function exception in 28 U.S.C. § 2680(a). 7 The

government did not argue that the decisions of U.S. Forestry Branch officials fell

within that discretionary-function exception. Instead, the government asserted

threshold claims about the scope of the FTCA’s waiver of sovereign immunity.

The government argued that: (1) the FTCA “did not waive the United States’

immunity from liability for the negligence of its employees when they act as public

firemen”; (2) the FTCA imposes liability on the United States only where

“governmental bodies have traditionally been responsible for the misconduct of

their employees”; and (3) neither common law nor the law of the state of

Washington “imposes liability on municipal or other local governments for the

negligence of their agents acting in the ‘uniquely governmental’ capacity of public

firemen.” Id. at 318–19, 77 S. Ct. at 376. The Supreme Court’s decision in

7
Section 2680 was enacted in June 1948, almost nine years before the Supreme Court
decided Rayonier in January 1957. Act of June 25, 1948, ch. 646, § 2680(a), 62 Stat. 869, 984
(1948) (codified as amended at 28 U.S.C. § 2680). Although Congress has since amended
portions of § 2680, the current language of the discretionary-function exception—as articulated
in subsection (a)—is identical to the language Congress originally enacted. Compare id., with
28 U.S.C. § 2680(a).
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Rayonier addresses the scope of the FTCA’s waiver, not the discretionary-function

exception to that waiver.

Second, and in any event, when Rayonier was decided in 1957, immunity for

the negligence of government employees performing discretionary actions was

analyzed under a different framework than it is today. In fact, Gaubert’s now-

ubiquitous two-part test is absent from the Supreme Court’s early jurisprudence in

this area. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 68–69, 76 S.

Ct. 122, 126–27 (1955); Dalehite v. United States, 346 U.S. 15, 41–42, 73 S. Ct.

956, 971 (1953). Rather, at the time of Rayonier, federal courts applying early

discretionary-function precedent often relied on a distinction between (1) planning

or policymaking decisions—to which the discretionary-function exception

generally applied—and (2) operational conduct—where the exception’s

applicability was less clear. See, e.g., White v. United States, 317 F.2d 13, 17 (4th

Cir. 1963) (“The application of [a] policy to [an] individual case is an

administrative decision at the operational level which if negligently done will make

the Government liable . . . .”); United States v. Hunsucker, 314 F.2d 98, 103–04

(9th Cir. 1962) (“[T]he distinction referred to in Dalehite between decisions made

on the planning level as against decisions made on the operational level has been

accepted by several courts.”).

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It was not until at least 1984, well after Rayonier, that the Supreme Court

began to synthesize its prior precedent and to articulate the two-part test that

federal courts apply today. See Berkovitz, 486 U.S. at 535–37, 108 S. Ct. at 1958–

59; United States v. Varig Airlines, 467 U.S. 797, 813–14, 104 S. Ct. 2755, 2764–

65 (1984); see also Gaubert, 499 U.S. at 322–24, 111 S. Ct. at 1273–74

(summarizing Varig Airlines and Berkovitz). In doing so, the Supreme Court

rejected the existence of any bright-line dichotomy between planning or

policymaking decisions and operational decisions implied by its prior precedent.

Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 (“A discretionary act is one that

involves choice or judgment; there is nothing in that description that refers

exclusively to policymaking or planning functions. . . . Discretionary conduct is

not confined to the policy or planning level.”).

Accordingly, Rayonier’s holding does not resolve our inquiry as to whether,

under Gaubert’s two-part test, the discretionary-function exception in § 2680(a)

protects the United States from FTCA liability for its alleged negligent failure to

observe, monitor, and maintain a natural or controlled forest fire. 8 Because no

8
Our colleague’s dissent agrees Rayonier does not resolve our inquiry. Dissent at 2
(“Rayonier did not address the FTCA’s discretionary function exception, so it does not control
the precise issue before us.”). At least one of our sister circuits also has concluded that Rayonier
does not resolve whether the discretionary-function exception operates to bar suit for alleged
negligence in failing to control a forest fire. Miller, 163 F.3d at 596–97 (“Because the Supreme
Court in Rayonier did not have the question before it of whether the discretionary function

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Supreme Court precedent resolves that issue, we next examine how our own Court

has applied Gaubert’s two-part test to government conduct.

VI. ELEVENTH CIRCUIT PRECEDENT APPLYING GAUBERT

Our decision in Autery v. United States is the most instructive here because

it involved an FTCA claim alleging negligent conduct by the U.S. National Park

Service. 992 F.2d at 1524. As a result of the Park Service’s alleged negligence, a

rotten tree fell and struck a vehicle, injuring a passenger and killing the driver. Id.

at 1524. There was no mandatory statute, regulation, or policy controlling the Park

Service’s process for inspecting and maintaining trees, so the first part of Gaubert’s

test was satisfied. Id. at 1530.

In applying the second part of Gaubert’s test, our Court in Autery identified

several policy considerations that justify reliance on the discretionary-function

exception. The Park Service, we noted, likely needed to balance several competing

interests, including “the risk of harm from trees in various locations, the need for

other safety programs, the extent to which the natural state of the forest should be

preserved, and the limited financial and human resources available.” Id. at 1531.

We refused to engage in any “judicial ‘second-guessing’” of the Park Service’s

exception applied, and because it did not apply the two-step analysis now followed, Rayonier
does not control our decision.”).
The dissent also cites Anderson v. United States, 55 F.3d 1379, 1384 (9th Cir. 1995), but
that decision, although decided after Gaubert, also does not discuss at the all the discretionary-
function exception to the FTCA’s general waiver of sovereign immunity.
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balancing of those interests. Id. (quoting Varig Airlines, 467 U.S. at 814, 104 S.

Ct. at 2765). We concluded the choices involved in implementing a tree inspection

plan were “grounded in social, economic and public policy,” such that the

discretionary-function exception applied. See id. at 1530–31. We therefore upheld

the application of the exception to bar relief for the government’s allegedly

negligent failure to detect and remove hazardous, rotten trees in a national park.

Id. at 1524, 1531.

Similarly, in Hughes v. United States, our Court applied the discretionary-

function exception to bar recovery for the U.S. Postal Service’s alleged negligent

failure to provide adequate security and monitor its parking lot. 110 F.3d at 766,

768–69. Two assailants shot plaintiff Hughes who was in her car in a post office

parking lot, and she sustained serious bodily injury. Id. at 766. We found no

applicable statute, regulation, or policy that prescribed a specific course of conduct

for the U.S. Postal Service to follow and thus concluded the first part of Gaubert’s

test was satisfied. Id. at 768.

In applying the second part of Gaubert’s test, our Court in Hughes refused to

second guess the resource-allocation decisions of the U.S. Postal Service

employees, who were faced with deciding how best to “serve customers in a

prompt, reliable, and efficient manner.” Id. at 768–69. Citing to Gaubert, we

recognized that “[d]ay-to-day management . . . regularly requires judgment as to

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which of a range of permissible courses is the wisest.” Id. at 768 (alteration in

original) (quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275). Post-Gaubert, the

discretionary-function exception protects certain decisions even at the operational

or day-to-day level. Id.; see also Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275.

And as the Supreme Court has long recognized, the discretionary-function

exception’s scope extends beyond high-level policymakers and includes

government officials at any rank exercising discretion. See Varig Airlines, 467

U.S. at 813, 104 S. Ct. at 2764. “[I]t is the nature of the conduct, rather than the

status of the actor, that governs whether the discretionary function exception

applies in a given case.” Id. at 813, 104 S. Ct. at 2764.

In yet another case, Cranford v. United States, our Court applied the

discretionary-function exception to decisions of U.S. Coast Guard officials in

marking and choosing not to remove a submerged shipwreck. 466 F.3d 955, 956

(11th Cir. 2006). Importantly, the government had, years previously, deliberately

sunk the ship in question to serve as a breakwater. Id. at 957. The Coast Guard

placed a marker to signal the presence of the shipwreck, but the plaintiffs, whose

motor boat struck the submerged ship, alleged the marking was inadequate. Id. at

956–57.

In Cranford, our Court concluded the Coast Guard’s decisions related to the

manner of marking the submerged shipwreck inherently involved “elements of

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judgment or choice.” Id. at 959. We reasoned that “decisions in marking a wreck

involve social, political, and economic policy considerations, such as taking into

account the knowledge and customs of international mariners, balancing the needs

of pleasure and commercial watercraft, and evaluating agency resource

constraints.” Id. at 960. We acknowledged that financial considerations, on their

own, do not necessarily render a decision one that is “susceptible to policy

analysis,” since “budgetary constraints are almost always important to government

decisions.” Id. (quotation marks omitted) (quoting Ochran, 117 F.3d at 502). But

as we noted, there were considerations at play beyond financial ones, and even the

resource-allocation considerations were not wholly financial in nature. Id. (noting

that the relevant concerns about “resource constraints . . . include but are not

limited to financial concerns”).

In the past, our Court also has identified instances in which a government

employee’s exercise of judgment or choice is not “susceptible to policy analysis.”

The most notable case is Swafford v. United States, which involved the

government’s alleged failure to properly maintain a staircase on a campground

owned and operated by the U.S. Army Corps of Engineers. 839 F.3d 1365, 1367–

68 (11th Cir. 2016). Plaintiff Swafford walked from Campsite 23, where he was

staying on the campground, to Campsite 26. Id. at 1367. He then fell and injured

himself while descending the site’s wooden stairway. Id. The Corps had

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contracted with a third party, Anderson Construction Company, “to provide all

maintenance, repair, and operations of facilities, vehicles, and equipment” on the

campground. Id. at 1368 (quotation marks omitted). The Corps’s contract

specifically provided for Anderson’s “complete inspection, maintenance, and

repair of all campsites and stairways necessary to keep them in safe working

condition.” Id. (quotation marks omitted).

Plaintiff Swafford alleged that the Corps “negligently and carelessly caused,

allowed, and/or permitted a hazardous condition to exist and remain as to the steps

at Campsite 26.” Id. (quotation marks omitted). He further alleged that any

negligence on Anderson’s part was imputable to the Corps and that the Corps had

“ratified Anderson’s negligent failure to inspect and/or repair the steps at Campsite

26 . . . by not requiring the repair of the defective and hazardous steps.” Id.

(quotation marks omitted).

In Swafford, our Court determined that, under the first part of Gaubert’s test,

the maintenance of the stairs involved the exercise of judgment and discretion, as

there was no evidence that a federal statute, regulation, or policy specifically

required that the Corps inspect, maintain, and repair the previously built stairways

at Campsite 26. Id. at 1370. Under the second part of Gaubert’s test, however, our

Court rejected the idea that the Corps could simply choose not to maintain the

stairs in a safe condition after explicitly undertaking responsibility for doing so,

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noting that “the Corps’s decision to build and ‘operate’ a staircase on the

Campground gives rise to a[n] . . . obligation to inspect and maintain that staircase

in a safe condition.” Id. at 1371. While the Corps’s initial decision to build and

undertake responsibility for maintaining the staircase was a discretionary

judgment, the Corps’s subsequent failure to maintain the staircase in a safe

condition was not a permissible exercise of policy judgment. Id. at 1371–72.

The Swafford Court acknowledged that the Supreme Court had disavowed

any bright-line discretionary-function rule that relies on “a dichotomy between

‘discretionary functions’ and ‘operational functions.’” Id. at 1371. But plaintiff

Swafford’s argument, this Court reasoned, did not rely on any such distinction;

rather, Swafford argued that “once the Corps exercised its discretion to build and

maintain the stairs, failure to maintain them in a safe condition [was] simply not a

permissible exercise of policy judgment.” Id. at 1371–72. Agreeing with

Swafford, our Court noted that the Corps’s contract with Anderson “specifically

required Anderson to inspect, maintain, and repair the Campground’s stairways as

necessary to keep them in safe working condition.” Id. at 1372 (quotation marks

omitted). As a result, “[w]hatever range of choice the Corps may have had in

supervising Anderson, ‘choosing’ to ‘accept’ a dangerously unsafe stairway [was]

simply not a permissible exercise of discretion any more than . . . choosing to drive

carelessly on official business.” Id.

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With this background in mind, we now turn to the challenged conduct in this

case.

VII. APPLYING GAUBERT’S SECOND PART

Again, Plaintiffs do not contend that, under the first part of Gaubert’s test,

the U.S. Forestry Branch’s challenged conduct involved no “element of judgment

or choice.” See Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273 (quotation marks

omitted). Nor do they challenge the U.S. Forestry Branch’s decision to initiate the

controlled burn. Our inquiry, then, is whether, under the second part of Gaubert’s

test, the U.S. Forestry Branch employees’ choices and decisions as to how to

observe, monitor, and maintain the burn are “susceptible to policy analysis.” Id. at

325, 111 S. Ct. at 1275. In other words, are those choices and decisions made in

executing the controlled burn necessarily “grounded in social, economic, and

political policy.” Gaubert, 499 U.S. at 323, 111 S. Ct. at 1273. We conclude that

they are.

As the Defendant points out, numerous policy considerations come into play

regarding whether and to what extent a U.S. Forestry Branch employee or official

might take a particular action during the monitoring or maintaining a controlled

burn. For example, an official might need to consider and balance the following

factors in planning and during the controlled burn: (1) the safety of U.S. Forestry

Branch personnel, as well as members of the public; (2) what specific level of

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safety measures to take during the controlled burn, such as how many employees

and how much equipment to use and where to use it in monitoring the execution of

the controlled burn; (3) the allocation of financial resources for fire suppression

costs; (4) the need to encourage ecological development; (5) potential risk to

private and public property; and (6) how best to balance the need for the controlled

burn against the inherent risk to persons and property. Additionally, because the

controlled burn here took place in close proximity to a U.S. military base, Forestry

Branch employees had to weigh additional important policy considerations related

to military personnel and operations. See OSI, Inc. v. United States, 285 F.3d 947,

953 (11th Cir. 2002) (“The nature of the military’s function requires that it be free

to weigh environmental policies against security and military concerns.”).

These are precisely the sort of social, economic, political, and public policy

concerns our Court has recognized as justifying the applicability of the

discretionary-function exception. See, e.g., Cranford, 466 F.3d at 960–61

(acknowledging federal officials’ need to take into account the interests of various

private actors, along with agency resource constraints, both personal and

financial); Hughes, 110 F.3d at 768–69 (recognizing the need to balance safety

concerns with the limited resources available and noting that “[d]ay-to-day

management . . . regularly requires judgment as to which of a range of permissible

courses is the wisest” (alteration in original) (quoting Gaubert, 499 U.S. at 325,

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111 S. Ct. at 1275)); Autery, 992 F.2d at 1531 (accepting the Park Service’s need

to balance environmental and safety concerns, as well as the limited financial and

human resources available). Given these numerous and complex policy

implications, the conduct at issue here is far afield from the example used in

Swafford of an employee simply “choosing” to carelessly drive a car on official

business. See Swafford, 839 F.3d at 1372.

Notably, two of our sister circuits have applied the discretionary-function

exception to bar FTCA lawsuits arising from government officials’ response to

naturally occurring wildfires. See Hardscrabble Ranch, L.L.C. v. United States,

840 F.3d 1216, 1222–23 (10th Cir. 2016) (reasoning as to the second part of

Gaubert’s test, that a Forest Service decision to only partially suppress a wildfire

required a “balancing of the needs to protect private property, ensure firefighter

safety, reduce fuel levels, and encourage natural ecological development,” and that

“[t]he nature of the [Forest Service’s] actions in fighting the . . . [f]ire

are susceptible to a policy analysis grounded in social, economic, or political

concerns”); Miller v. United States, 163 F.3d 591, 595–96 (9th Cir. 1998)

(concluding, as to the second step in Gaubert’s test, that “the decision regarding

how to best approach the . . . fire . . . required consideration of fire suppression

costs, minimizing resource damage and environmental impacts, and protecting

private property,” as well as safety, and that “the Forest Service’s decision

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is susceptible to a policy analysis grounded in social, economic, or political

concerns”). 9

True, these two decisions involved naturally occurring fires as opposed to

controlled burns initiated by the U.S. Forestry Branch. But this distinction does

not meaningfully affect our Gaubert analysis. As Plaintiffs themselves concede,

there is no contention here that the U.S. Forestry Branch acted negligently, or

otherwise improperly, in exercising its discretion to start the fire in the first place.

And once the fire was burning, the U.S. Forestry Branch employees tasked with

controlling the fire were faced with the same competing policy interests and

considerations recognized by our sister circuits as satisfying the second step in

Gaubert’s two-part test. The origin of the fire is therefore largely irrelevant to the

precise issue before us: whether the government’s measures and conduct in

observing, monitoring, and maintaining of a forest fire are “susceptible to policy

analysis.” See Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275.

9
It is also true, as Plaintiffs point out, the district courts in these cases had before them
evidence of particular policy considerations that were at play. But as we have emphasized, under
the second part of Gaubert’s test, we are not concerned with the subjective intent of the
government employees who oversaw the burn or whether those employees actually weighed
particular policy considerations. See Ochran, 117 F.3d at 500; Autery, 992 F.2d at 1530–31
(“Gaubert . . . cautions against conducting a fact-based inquiry into the circumstances
surrounding the government actor’s exercise of a particular discretionary function . . . .”). The
inquiry is not fact-based; rather our concern is whether the nature of the challenged decision, in
an objective or general sense, is “susceptible to policy analysis.” See Hughes, 110 F.3d at 768
(quotation marks omitted).
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Plaintiffs rely heavily on our statement in Swafford that “once the Corps

exercised its discretion to build and maintain the stairs, failure to maintain them in

a safe condition [was] simply not a permissible exercise of policy judgment.”

Swafford, 839 F.3d at 1372. Plaintiffs argue that, similarly, once the U.S. Forestry

Branch “exercised its discretion to conduct [the] controlled burn and to observe,

monitor and maintain it, the [government’s negligent] failure to maintain the burn

in a safe manner, within the confines and/or perimeters as intended, is simply not a

permissible exercise of policy judgment.” They insist that “choosing not to control

a prescribed burn is not a permissible exercise of discretion.”

At bottom, Plaintiffs’ argument effectively collapses the discretionary-

function exception into a question of whether the government was negligent,

implying that the mere presence of alleged negligence can defeat the exception.

But negligence is irrelevant at this point in the Gaubert inquiry. Only after

concluding that the government has waived its sovereign immunity would a court

consider whether a particular government employee negligently executed the

controlled burn. Framing the question as the government’s negligent failure in

executing the controlled burn thus begs the question. The relevant conduct at issue

here is the U.S. Forestry Branch’s planning and policy decisions about what

measures and conduct to take during the controlled burn itself, not their ultimate

negligent acts during the controlled burn.

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Further, Plaintiffs’ analogy to Swafford is unpersuasive because it assumes

maintaining a staircase and monitoring a fire are analogous activities with similar

risks and attendant policy concerns. This is not the case. It is one thing to say that

government officials may decline to maintain an already built and static set of

stairs in a safe condition, where the alleged policy considerations essentially come

down to a determinate budget allocation and where the government has hired a

subcontractor to maintain the stairs in good working condition. Here, in contrast,

and as discussed above, myriad other factors come into play when dealing with an

ongoing and quickly evolving forest fire—whether natural or controlled—such as

those listed above and recognized by two Courts of Appeals. See Hardscrabble

Ranch, 840 F.3d at 1222–23; Miller, 163 F.3d at 596. Controlled burns are

exponentially more complicated, dangerous, and unpredictable than repairing a

fixed, static set of stairs. Controlled burns require the consideration and weighing

of significantly more factors and elements. The conduct and policy judgment in

Swafford are materially different from the conduct and judgment in this case.

Plaintiffs do not address head-on the existence or importance of the social,

economic, political, or public policy concerns identified by the Defendant. The

necessary implication of Plaintiffs’ argument is that Swafford stands for the broad

proposition that, wherever the government “exercise[s] its discretion” to

affirmatively undertake a particular task, the discretionary-function exception

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cannot apply to except the government from liability for any subsequent

negligence. But to read Swafford as broadly as Plaintiffs suggest would come

close to resurrecting the strict planning-versus-operational dichotomy rejected by

the Supreme Court. See Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275; see also

Cranford, 466 F.3d at 959 (“The [plaintiffs] would have us rule that the

discretionary function exception does not apply to the execution of a governmental

decision, but this argument merely restates the operational conduct distinction

rejected in Gaubert.”).

Moreover, that reading of Swafford does not square either with our prior

precedent applying the discretionary-function exception or with other circuits’

decisions applying the exception to the monitoring and maintenance of naturally

occurring fires. After all, even where a forest fire begins naturally, the government

can still be said to have “exercised its discretion” to undertake the task of

“observ[ing], monitor[ing,] and maintain[ing]” the fire. See Hardscrabble Ranch,

840 F.3d at 1222–23; Miller, 163 F.3d at 596. The same can be said for, say, the

government’s decision to maintain and remove rotten trees in a national park,

Autery, 992 F.2d at 1524, or to operate a post office it elected to place in a

particular area, Hughes, 110 F.3d at 766, or to mark the location of a submerged

ship it deliberately sank, Cranford, 466 F.3d at 956–57.

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We assume, as we must at this stage, that U.S. Forestry Branch officials

were negligent in their observation, monitoring, and maintenance during the

controlled burn itself as alleged in the complaint. But that alleged conduct—the

steps and measures taken to safely execute a controlled burn—by its nature,

involves an exercise of discretion and considerations of social, economic, political,

and public policy. See Hughes, 110 F.3d at 767 n.1 (“Our concern under the

discretionary function exception is not whether the allegations of negligence are

true; instead, our concern is whether the nature of the conduct involves judgment

or choice and whether that judgment is of the kind that the exception was designed

to protect.”). The government’s decisions about how to monitor and maintain a

controlled burn are shielded from judicial second-guessing by the discretionary-

function exception to the FTCA. Accordingly, we conclude that Plaintiffs failed to

“allege a plausible claim that falls outside the discretionary function exception.”

See Douglas, 814 F.3d at 1276. Because the discretionary-function exception

applies here, the United States has not unequivocally waived its sovereign

immunity, and the district court therefore lacked jurisdiction over Plaintiffs’ FTCA

claims against Defendant United States. See Fed. R. Civ. P. 12(b)(1); Zelaya, 781

F.3d at 1322.

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VIII. DISSENT

In his dissent, our colleague concludes: (1) “I do not think that we can hold,

on a facial challenge to the complaint, that the discretionary function exception

necessarily applies”; (2) “[t]he district court should have denied the government’s

facial challenge, permitted discovery, and decided the applicability of the

discretionary function exception at summary judgment”; and (3) “[t]he majority

has been too quick in pulling the trigger on the applicability of the discretionary

function exception.” 10 Dissent at 1, 10, 12.

With all due respect, the dissent ignores the actual factual and procedural

background of the appeal before us in four material ways. First, as the Majority

Opinion already notes in footnote 2, the Plaintiffs on appeal do not argue that they

were entitled to take any discovery prior to the district court’s ruling on the

Defendant’s motion to dismiss. While Plaintiffs suggested discovery in the district

court, Plaintiffs do not raise that claim on appeal. The dissent does not dispute that

fact.

Second, Plaintiffs also do not challenge the district court’s ruling on the first

part of Gaubert’s test. They do not argue, nor have they ever argued, that the U.S.

10
As discussed, supra n.8, the dissent agrees that the Supreme Court’s 1957 Rayonier
decision does not control because it did not discuss the discretionary-function exception as all.
As a result, there is no precedent from the Supreme Court or our Court that resolves the Gaubert
step-two issue before us as to forest fires or controlled burns.
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Forestry Branch officials responsible for the controlled burn had no room to

exercise “judgment or choice” in their decisions about how they observed,

monitored, and maintained the burn. Accordingly, in this particular appeal, our

analysis is limited to only the second part of Gaubert’s test: whether “the nature of

the actions taken” by the U.S. Forestry Branch officials as to the controlled burn

were “susceptible to policy analysis.” Majority Op. at 9 (quoting Gaubert, 499 U.S.

at 325, 111 S. Ct. at 1275); see also Autery, 992 F.3d at 1530–31.

Third, the Plaintiffs’ complaint, their response to the Defendant’s motion to

dismiss in the district court, and their brief on appeal nowhere cite the two

documents attached as an 84-page appendix to the dissent. Those documents are

published by the National Wildfire Coordinating Group (NWCG) and are entitled:

(1) the July 2017 “Interagency Prescribed Fire Planning and Implementation

Procedures Guide”; and (2) the March 2018 “Prescribed Fire Plan Template.” The

Plan and Guide documents describe the NWCG as follows:

The National Wildfire Coordinating Group (NWCG) provides national
leadership to enable interoperable wildland fire operations among
federal, state, tribal, territorial, and local partners. NWCG operations
standards are interagency by design; they are developed with the intent
of universal adoption by the member agencies. However, the decision
to adopt and utilize them is made independently by the individual
member agencies and communicated through their respective directives
systems.

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(emphasis added). The dissent does not indicate whether the U.S. Forestry Branch

has adopted or utilized the NWCG’s standards, in whole, in part, or not at all. The

record does not tell us as no one cited, much less discussed, the Plan or the Guide.

The dissent argues that, “[g]iven the Plan and the Guide, it is difficult to

understand how or why the majority believes that all government conduct

associated with a prescribed burn is shielded by the discretionary function

exception.” Dissent at 5–6. But again, what the dissent fails to acknowledge is

that Plaintiffs do not challenge the district court’s ruling on the first part of

Gaubert’s test. Indeed, the Plaintiffs have never pointed to any “federal statute,

regulation, or policy specifically prescribe[ing] a course of action” the Forestry

Branch officials were required to follow in conducting the controlled burn.

Majority Op. at 8 (quoting See Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273). Nor

do the Plaintiffs claim they should have been allowed discovery to find any

potentially applicable directive that specifically prescribed a course of conduct that

the U.S. Forestry Branch employees were bound to follow in observing,

monitoring, and maintaining the burn. The Plaintiffs have not done so because

they do not challenge on appeal the district court’s conclusion that the U.S.

Forestry Branch’s decisions as to how to observe, monitor, and maintain the fire

involved an element of judgment or choice.

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Fourth and finally, because the narrow appellate issue before us involves

only the second part of Gaubert’s test, our inquiry is only whether the nature of the

decisions made by the U.S. Forestry Branch—even assuming officials were

negligent in deciding how to observe, monitor, and maintain the controlled burn—

were “susceptible to policy analysis.” Majority Op. at 9 (quoting Gaubert, 499

U.S. at 325, 111 S. Ct. at 1275). The documents attached to the dissent, if

anything, confirm the Majority’s conclusion that social, economic, political, and

public policy considerations are all at play in what actions the U.S. Forestry

Branch takes in an effort to observe, monitor, and maintain a controlled burn. The

Plan and Guide address funding, safety, personnel, resources, environmental

concerns, and numerous other public policy issues.

The dissent perhaps begins to educate future plaintiffs in FTCA–controlled

burn cases about the first part of Gaubert’s test and the need to look for potential

directives that may specifically prescribe a course of conduct, to ascertain whether

such directives were adopted by a federal agency at some point relevant to the case,

and to argue that those directives removed the range of discretionary choices

available to the U.S. Forestry Branch at the first part of Gaubert’s test. However,

the dissent fails to take into account that the instant issue on appeal involves only

the second step in Gaubert’s two-part test and whether the inherent nature of the

actions taken were “susceptible to policy analysis.” Gaubert, 499 U.S. at 325, 111

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S. Ct. at 1275. Pursuant to precedent, the Majority has looked at “the nature of” the

challenged actions in an objective or general sense and concluded they are inherently

grounded in social, economic, political, and public policy concerns.

IX. CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal of

Plaintiffs’ FTCA complaint for lack of subject matter jurisdiction.

AFFIRMED.

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JORDAN, Circuit Judge, dissenting:

The government may ultimately be right that the negligence claims of Foster

Logging Inc. and American Guarantee & Liability Insurance Company will be

barred by the discretionary function exception to the Federal Torts Claims Act. See

28 U.S.C. § 2680(a). But I do not think that we can hold, on a facial challenge to

the complaint, that the discretionary function exception necessarily applies.

I

As a general principle, it is well settled that the government can be liable under

the FTCA for the negligence of its employees in fighting or controlling a fire. See

Rayonier Inc., v. United States, 352 U.S. 315, 319–20 (1957). In Rayonier, a fire

started on government-owned land and spread for 20 miles, destroying the plaintiff’s

property. See id. at 316–17. The complaint alleged that the government had been

negligent by, among other things, “not properly suppressing the spot fires” and

“failing to quench and prevent the spread of the fire when it was under control.” Id.

at 317. The district court dismissed the complaint on the ground that the government

could not be sued for the Forest Service’s negligence in combating a fire, and the

Ninth Circuit affirmed. See id. The Supreme Court reversed. See id. at 321.

Explaining that the FTCA was enacted to help share the burden of injured parties

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who are left “destitute or grievously harmed” by the government’s negligence, the

Court held that the FTCA allowed the government to be sued for its employees’

negligence in managing a fire, and vacated the dismissal of the complaint. See id.

Rayonier did not address the FTCA’s discretionary function exception, so it

does not control the precise issue before us. But it does show that there are scenarios

in which the government can be sued under the FTCA for its negligence in failing

to control a fire. That reality is confirmed by later cases like Anderson v. United

States, 55 F.3d 1379, 1384 (9th Cir. 1995) (holding that the FTCA supported a

negligence claim against the government for failing to manage a prescribed burn in

a national forest). And that reality, as explained below, matters.

II

Our pleading rules require only “a short and plain statement of the claim

showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), and the Supreme

Court has told us that “they do not countenance dismissal of a complaint for

imperfect statement of the legal theory supporting the claim asserted.” Johnson v.

City of Shelby, 574 U.S. 10, 11 (2014). To survive a motion to dismiss, therefore, a

complaint need only “plead facts sufficient to show that [the] claim has substantive

plausibility.” Id. at 12.

“[A] motion to dismiss for lack of subject matter jurisdiction pursuant to

[Rule] 12(b)(1) can be based upon either a facial or factual challenge to the

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complaint.” McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d

1244, 1251 (11th Cir. 2007). If the challenge is facial, the district court must afford

the plaintiff “safeguards similar to those retained when a Rule 12(b)(6) motion to

dismiss for failure to state a claim is raised.” Id. The court need only “look and

see if the plaintiff’s complaint has sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in [the] complaint are taken as true for the purposes

of the motion.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335–36

(11th Cir. 2013) (citation and internal quotation marks omitted).

A

The “discretionary function exception applies only to conduct that involves

the permissible exercise of policy judgment.” Berkovitz v. United States, 486 U.S.

531, 539 (1988). It is inapplicable “if a government policy specifically prescribes

an action and that policy is violated.” Hart v. United States, 894 F.2d 1539, 1546

(11th Cir. 1990). See also Douglas v. United States, 814 F.3d 1268, 1273 (11th Cir.

2016) (laying out the two-part test for the discretionary function exception).

Where, as here, the government mounts a facial challenge to the complaint

based on the discretionary function exception, the plaintiff need only “allege a

plausible claim that falls outside the . . . exception.” Douglas, 814 F.3d at 1276. But

we have also held that the government has the burden of “production of the policy

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considerations that might influence the challenged conduct.” Ochran v. United

States, 117 F.3d 495, 504 n.4 (11th Cir. 1997).

B

As noted earlier, the FTCA generally allows claims against the government

for negligence in failing to control a fire. See Rayonier, 352 U.S. at 319–20;

Anderson, 55 F.3d at 1384. The complaint here easily pled a claim covered by the

FTCA, as the plaintiffs alleged that the government had “conducted a [prescribed]

burn in area B-20” and then “negligently failed to observe, monitor, and maintain”

that burn, “allowing fire to escape area B-20” and causing damage to Foster

Logging’s equipment in area B-19.5. See D.E. 1 at 3 ¶ 12.

The Supreme Court made clear in United States v. Gaubert, 499 U.S. 315, 325

n.7 (1991), that not all discretionary acts are covered by the discretionary function

exception. “There are obviously discretionary acts performed by a Government

agent that are within the scope of his employment but not within the discretionary

function exception because these acts cannot be said to be based on the purposes that

the regulatory regime seeks to accomplish.” Id. The majority assumes that there is

no way that the government’s alleged negligence can fall outside the discretionary

function exception, and makes the incredibly broad statement that the “government’s

decisions about how to monitor and maintain a prescribed burn are shielded from

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second-guessing by the discretionary function exception to the FTCA.” Maj. Op. at

31. That statement is not only unnecessarily broad, it is demonstrably mistaken.

The majority’s assertion that all conduct relating to a prescribed burn is

shielded by the discretionary function exception is wrong. Prescribed fires are

highly regulated, and federal agencies involved with prescribed burns (including the

National Park Service, the U.S. Fish and Wildlife Service, the Bureau of Land

Management, and Bureau of Indian Affairs, and the U.S. Forest Service) must adhere

to the “minimum mandates” articulated in the Prescribed Fire Plan. See Robert H.

Palmer III, A New Era of Federal Prescribed Fire: Defining Terminology and

Properly Applying the Discretionary Function Exception, 2 Seattle J. Envtl. L. 279,

310 (2012).

The current version of the Plan, published by the National Wildfire

Coordinating Group, is the March 2018 NWCG Prescribed Fire Plan Template, PMS

484-1 (found at www.nwcg.gov/publications/484-1 [last visited July 27, 2020]).

The Plan is now a supplement to another document, the July 2017 Interagency

Prescribed Fire Planning and Implementation Guide, PMS 484 (found at

www.nwcg.gov/sites/default/files/publications/pms484.pdf [last visited July 27,

2020]). The Guide, also published by the NWCG, is a comprehensive 53-page

document which sets out, among other things, “standardized procedures” for the

“planning and implementation of prescribed fire.” Id. at 1. It describes “what is

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minimally acceptable for prescribed fire planning and implementation.” Id.

(emphasis in original). Given the Plan and the Guide, it is difficult to understand

how or why the majority believes that all government conduct associated with a

prescribed burn is shielded by the discretionary function exception. See Palmer,

Prescribed Fire, 2 Seattle J. Envtl. L. at 315 (arguing that, because a “prescribed fire

plan and implementation is not discretionary,” the “discretionary function exception

should not bar a claim for damages resulting from a prescribed fire”).1

C

On a facial challenge, we are required to view the complaint in the light most

favorable to the plaintiffs and draw all reasonable inferences in their favor. Under

this standard, the complaint should not have been dismissed.

Assume, for example, that the government decided as part of its prescribed

burn plan to dig a trench at the boundary of area B-20 in order to prevent the fire

from spreading to area B-19.5. Assume further that, once that decision was made

and communicated to the employees who were assigned the task of digging the

trench, those employees simply forgot to do the job or dug the trench in the wrong

place. In other words, they were negligent in carrying out the policy decision that

1
Copies of the Plan and the Guide are attached as Appendices A and B. We can take judicial
notice of the Plan and the Guide as agency documents or reports under Federal Rule of Evidence
201(b)(2). See Dimanche v. Brown, 783 F.3d 1204, 1213 n.1 (11th Cir. 2015); Terrebonne v.
Blackburn, 646 F.2d 997, 1000 n.4 (5th Cir. 1981).
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had been made. Although the discretionary function exception would shield the

initial decision to dig the trench as a way to contain the fire, it would not immunize

the negligence of the employees in carrying out that directive. Such negligence

would not involve an element of judgment or choice, nor would it be grounded in

considerations of public policy. 2

A district court case, Florida Department of Agriculture & Consumer Servs.

v. United States, 2010 WL 3469353, at *4 (N.D. Fla. Aug. 30, 2010), is instructive

in this regard. In that case, which likewise involved an FTCA claim based on the

government’s alleged negligence in carrying out a prescribed burn, the district court

denied the government’s motion for summary judgment. See id. at *5. As relevant

here, the court held that the discretionary function exception did not apply because

the government had admitted during discovery that it had not followed the prescribed

burn plan. See id. at *4 (explaining that the evidence showed a “clear disobedience

to mandates that are not discretionary”). And it explained that, although the

government “may have had discretion as to the analysis conducted within the Burn

Plan, [it] had no judgment or choice whether to complete a Plan and then follow it

once approved.” Id.

2
The majority proclaims that the government employees involved with the prescribed burn here
“were faced with the same competing policy interests and considerations recognized by our sister
circuits[.]” Maj. Op. at 27. But unless the majority has a crystal ball into the past, I do not see
how it can make this factual assertion.
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Florida Department of Agriculture, moreover, is not an outlier. In other

FTCA cases, our sister circuits have reversed dismissals of complaints when it was

not clear that the challenged action was covered by the discretionary function

exception. See, e.g., Rich v. United States, 811 F.3d 140, 147 (4th Cir. 2015)

(reversing the district court’s dismissal of an FTCA complaint pursuant to the

discretionary function exception because, even though prison officials had discretion

in instituting a pat-down policy, the way that the pat-downs were conducted was not

discretionary and could have been completed negligently); Palay v. United States,

349 F.3d 418, 432 (7th Cir. 2003) (reversing dismissal of FTCA complaint by a

prisoner, who alleged that he was injured in a gang fight due to the negligence of

prison employees, because without discovery it was impossible to tell whether the

discretionary function exception applied: “[T]he government presumes that the

circumstances . . . were the result of discretionary decisions by prison officials

charged with making such policy choices—for example, judgments about housing

inmates affiliated with rival gangs in the same housing unit. . . . Certainly that is

possible. But one can also imagine that negligence having nothing whatsoever to do

with discretionary judgments that enabled the fight to break out.”).

III

In Swafford v. United States, 839 F.3d 1365 (11th Cir. 2016), the plaintiff sued

the government under the FTCA for injuries he suffered when he fell down a set of

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stairs at a federally-owned campground. See id. at 1368. The district court granted

summary judgment in favor of the government on several grounds, including the

discretionary function exception. See id. We reversed that aspect of the district

court’s order. See id. at 1372. Because the plaintiff “submitted no evidence that a

federal statute, regulation, or policy specifically requires the inspection,

maintenance, and repair of the stairs” at the campground, we concluded that, on the

record before us, “deciding whether to engage in these tasks involves an element of

judgment or choice.” Id. at 1370. But we ruled that this judgment was not the sort

of discretionary choice that the discretionary function exception was meant to shield.

We explained that the government’s decision to build and operate a staircase on the

campground gave rise to an obligation to “inspect and maintain that staircase in a

safe condition.” Id. at 1371. Indeed, the government’s contract with a construction

company required the company to inspect, maintain, and repair the campground’s

stairways as needed to keep them in a safe working condition. See id. at 1372.

As I read Swafford, it supports reversal of the district court’s dismissal order.

The plaintiffs’ failure here to point to a mandatory regulation or directive in their

complaint is not fatal. As set out earlier, the NWCG’s Plan and Guide provide

minimal requirements that federal agencies must follow with respect to prescribed

burns. Moreover, under Swafford it is possible that the government’s decision to

carry out a prescribed burn in Area B-20 gave rise to an obligation to limit its spread.

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In my view, it is inappropriate to require the plaintiffs to specifically allege in

their complaint exactly what type of negligence the government committed. First,

the Supreme Court has said that this sort of detailed pleading is unnecessary. See

Johnson, 574 U.S. at 11. Second, we know that the “facial plausibility” standard “is

not akin to a ‘probability requirement[.]’” Aschcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citation omitted). Third, the government has the burden of production with

respect to the policies that might trigger the discretionary function exception. See

Ochran, 117 F.3d at 504 n.4. Fourth, as the Seventh Circuit has aptly noted, the

“government, not the plaintiff, will generally have superior access to the information

that might trigger” the discretionary function exception. See Bunch v. United States,

880 F.3d 938, 942 (7th Cir. 2018).

The district court should have denied the government’s facial challenge,

permitted discovery, and decided the applicability of the discretionary function

exception at summary judgment. Where the government’s motion to dismiss is

really based on “factual contentions that go right to the merits of the case,” the

district court should “find that jurisdiction exists and deal with the objection as a

direct attack on the merits of the plaintiff’s case.” Douglas, 814 F.3d at 1275. At

the very least, the district court should have ordered limited jurisdictional discovery

to develop the record so it could determine whether the government’s alleged

conduct falls within the discretionary function exception. As things stand, “we lack

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a developed record that would permit us to decide as a matter of law whether the

actions that allegedly resulted in [the fire escaping to area B-19.5] reflected the

exercise of discretionary policy judgments.” Palay, 349 F.3d at 432.3

IV

As I acknowledged at the beginning, it may well be that the plaintiffs’ claims

will be barred by the discretionary function exception. The government might be

correct that the conduct at issue here was “influenced by considerations such as the

promotion of military training and operations activities at Ft. Stewart, the

conservation and rehabilitation of its natural resources, and the risk of harm to

military personnel and private citizens.” Br. for Appellee at 13. But we can only

make that decision at summary judgment on a fully developed record, and not on a

facial challenge to the complaint where we must draw all reasonable inferences in

favor of the plaintiffs.

That is how things played out in Hardscrabble Ranch, LLC v. United States,

840 F.3d 1216 (10th Cir. 2016), a case involving not a prescribed burn but the Forest

Service’s alleged negligence in fighting a fire started by lightning. The Tenth Circuit

3
Our sister circuit courts have allowed discovery when it is unclear whether the discretionary
function exception applies. We should follow suit here. See Snyder & Assocs. Acquisitions LLC
v. United States, 859 F.3d 1152, 1162 (9th Cir. 2017) (reversing the district court’s dismissal of an
FTCA complaint so that the parties could conduct discovery on the applicability of the
discretionary function exception); Ignatiev v. United States, 238 F.3d 464, 466–67 (D.C. Cir.
2001) (explaining the difficulties that an FTCA plaintiff faced in drafting a complaint, and
concluding that discovery was the only tool he had to advance his claim).

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affirmed the district court’s grant of summary judgment to the government based on

the discretionary function exception because discovery revealed that (1) the Forest

Service’s “decision checklist” conferred discretion on decisionmakers as to what

factors to consider, and what steps to take, in fighting a fire, and (2) the “nature” of

the Forest Service’s actions in fighting the fire were “susceptible to a policy analysis

grounded in social, economic, or political concerns.” Id. at 1220–21, 1222–23.

Accord Miller v. United States, 163 F.3d 591, 597 (9th Cir. 1998) (affirming

summary judgment in favor of the government on FTCA claim relating to failure to

control fires started by lightning—discretionary function exception applied because

the “decision how to allocate resources in a multiple fire situation involved

discretion and the consideration of competing economic and social policies”).

The majority has been too quick in pulling the trigger on the applicability of

the discretionary function exception. With respect, I dissent.4

4
The majority says that I am educating future FTCA plaintiffs in cases involving the government’s
alleged negligence in prescribed burns. My aim is different—to hopefully persuade other courts
to avoid the mistakes the majority makes today.
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Appendix A
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A publication of the
National Wildfire
Coordinating Group
NWCG Prescribed
Fire Plan Template

PMS 484-1 MARCH 2018
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NWCG Prescribed
Fire Plan Template
March 2018
PMS 484-1

The NWCG Prescribed Fire Plan Template is supplemental to the Interagency Prescribed Fire Planning
and Implementation Guide, PMS 484. The plan is the site-specific legal implementation document that
provides the agency administrator the information needed to approve the prescribed fire plan and the
prescribed fire burn boss the information needed to implement the prescribed fire plan.
The Interagency Prescribed Fire Planning and Implementation Procedures Guide, PMS 484,
establishes national interagency standards for the planning and implementation of prescribed fire. The
guide is available at: https://www.nwcg.gov/publications/484.

The National Wildfire Coordinating Group (NWCG) provides national leadership to enable
interoperable wildland fire operations among federal, state, tribal, territorial, and local partners. NWCG
operations standards are interagency by design; they are developed with the intent of universal adoption
by the member agencies. However, the decision to adopt and utilize them is made independently by the
individual member agencies and communicated through their respective directives systems.
Prescribed Fire Name:
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Ignition Unit Name:

Element 1: Signature Page

PRESCRIBED FIRE PLAN

ADMINISTRATIVE UNIT NAME(S):

PRESCRIBED FIRE NAME:
Prescribed Fire Unit (Ignition Unit):

PREPARED BY:
Name (print): Qualification/Currency:

Signature: Date:

TECHNICAL REVIEW BY:
Name (print): Qualification/Currency:

Signature: Date:

COMPLEXITY RATING:

MINIMUM BURN BOSS QUALIFICATION:

APPROVED BY:
Name – Agency Administrator (print):

Signature – Agency Administrator: Date:

NWCG Prescribed Fire Plan Template 1 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 2A: Agency Administrator Ignition Authorization
Instructions: The Agency Administrator Ignition Authorization must be completed before a prescribed fire can be
implemented. If ignition of the prescribed fire is not initiated prior to expiration date determined by the agency
administrator, a new authorization will be required.

Prior to signature the agency administrator should discuss the following key items with the fire management officer (FMO) or
burn boss. Attach any additional instructions or discussion documentation (optional) to this document.

Key Discussion Items

A. Has anything changed since the Prescribed Fire Plan was approved or revalidated?

Such as drought or other climate indicators of increased risk, insect activity, new subdivisions/structures, smoke
requirements, Complexity Analysis Rating.
B. Have compliance requirements and pre-burn considerations been completed?

Such as preparation work, NEPA mitigation requirements, cultural, threatened and endangered species, smoke
permits, state burn permits/authorizations.
C. Can all of the elements and conditions specified in Prescribed Fire Plan be met?

Such as weather, scheduling, smoke management conditions, suitable prescription window, correct season,
staffing and organization, safety considerations, etc.
D. Are processes in place to ensure all internal and external notifications and media releases will be completed?
E. Have key agency staffs been fully briefed about the implementation of this prescribed fire?
F. Are there circumstances that could affect the successful implementation of the plan?

Such as preparedness level restrictions, resource availability, other prescribed fire or wildfire activity
G. Have you communicated your expectations to the Burn Boss and FMO regarding if and when you are to be
notified that contingency actions are being taken?
H. Have you communicated your expectations to the Burn Boss and FMO regarding decisions to declare the
prescribed fire a wildfire?

Implementation Recommended by:
FMO or Prescribed Fire Burn Boss Signature: Date:

I am authorizing ignition of this prescribed fire between the dates of and . It is my
expectation that the project will be implemented within this time frame and as discussed and documented and attached to
this plan. If the conditions we discussed change during this time frame, it is my expectation you will brief me on the
circumstances and an updated authorization will be negotiated if necessary.

Additional Instructions or Discussion Documentation attached (Optional): Yes ☐ No☐

Ignition Authorized by:
Agency Administrator Signature and Title: Date:

NWCG Prescribed Fire Plan Template 2 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 2B: Prescribed Fire Go/No-Go Checklist

Preliminary Questions Circle YES or NO
A. Have conditions in or adjacent to the ignition unit changed, (for example: drought
conditions or fuel loadings), which were not considered in the prescription
YES NO
development?
If NO proceed with the Go/NO-GO Checklist below, if YES go to item B.

B. Has the prescribed fire plan been reviewed and an amendment been approved; or
has it been determined that no amendment is necessary?
YES NO
If YES, proceed with checklist below.
If NO, STOP: Implementation is not allowed. An amendment is needed.

GO/NO-GO Checklist Circle YES or NO
Have ALL permits and clearances been obtained? YES NO

Have ALL the required notifications been made? YES NO
Have ALL the pre-burn considerations and preparation work identified in the
YES NO
prescribed fire plan been completed or addressed and checked?
Have ALL required current and projected fire weather forecast been obtained and are
YES NO
they favorable?

Are ALL prescription parameters met? YES NO

Are ALL smoke management specifications met? YES NO

Are ALL planned operations personnel and equipment on-site, available and operational? YES NO

Has the availability of contingency resources applicable to today’s implementation been
YES NO
checked and are they available?
Have ALL personnel been briefed on the project objectives, their assignment,
YES NO
safety hazards, escape routes, and safety zones?
If all the questions were answered “YES” proceed with a test fire. Document the current conditions,
location and results. If any questions were answered “NO”, DO NOT proceed with the test fire:
Implementation is not allowed.
After evaluating the test fire, in your judgment can the prescribed fire be carried out according to the
prescribed fire plan and will it meet the planned objective? Circle: YES or NO

Burn Boss Signature: Date:

NWCG Prescribed Fire Plan Template 3 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 3: Complexity Analysis Summary and Final Complexity

Replace this page with the signed:
Summary and Final Complexity Worksheet
PMS 424-1
The worksheet is a separate file that needs to be copied and pasted from Summary and Final Complexity
Worksheet, PMS 424-1. On the completed worksheet; highlight the entire worksheet area to be copied,
right click, click on ‘copy’. On this page, delete this text, right click, choose ‘picture’ as a paste option,
and resize as necessary to fit to page.

An alternate solution is to print the Summary and Final Complexity Worksheet, 424-1, and insert into the
final plan.

NWCG Prescribed Fire Plan Template 4 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Fill out Elements 4 through 21 based on the guidance provided in the Interagency Prescribed Fire Planning and
Implementation Procedures Guide, PMS 484.

Element 4: Description of Prescribed Fire Area
A. Physical Description
1. Location:

2. Size:

3. Topography:

4. Project area:

5. Ignition units:

B. Vegetation/Fuels Description:
1. On-site fuels data:

2. Adjacent fuels data:

3. Percent of vegetative type and fuels model(s):

C. Description of Unique Features, Natural Resources, Values:

D. Maps–Attach in Appendix A
1. Vicinity (Required)

2. Project/Ignition Unit(s) (Required)

3. Values (Optional): ☐ Included ☐ Not Included

4. Significant or Sensitive Features (Optional): ☐ Included ☐ Not Included

5. Fuels or Fuel Model(s)(Optional): ☐ Included ☐ Not Included

6. Smoke Impact Area (Optional): ☐ Included ☐ Not Included

NWCG Prescribed Fire Plan Template 5 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 5: Objectives
A. Resource Objectives:

B. Prescribed Fire Objectives:

Element 6: Funding
A. Cost:

B. Funding Source:

Element 7: Prescription
A. Prescription Narrative:
1. Describe how fire behavior will meet objectives

B. Prescription Parameters:
1. Environmental or fire behavior (or both)

2. Fire Modeling or empirical documentation (or both)

Element 8: Scheduling
A. Implementation Schedule:
1. Ignition Time Frames or Season(s) (or both)

B. Projected Duration:

C. Constraints:

NWCG Prescribed Fire Plan Template 6 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 9: Pre-burn Considerations and Weather
A. Considerations:
1. On-site

2. Off-site

B. Method and Frequency for Obtaining Weather and Smoke Management Forecast(s):

C. Notifications:

Element 10: Briefing
A. Briefing Checklist; including, but not limited to: (additional items may be added)

 Burn organization and assignments
 Prescribed Fire objectives and prescription
 Description of prescribed fire project area
 Expected weather and fire behavior
 Communications
 Ignition plan
 Holding plan
 Contingency plan and assignments
 Wildfire declaration
 Safety and medical plan
 Aerial ignition briefing (if aerial ignition devices will be used)

Element 11: Organization and Equipment
A. Positions:

B. Equipment:

C. Supplies:

NWCG Prescribed Fire Plan Template 7 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 12: Communication
A. Radio Frequencies:
1. Command frequency(ies):

2. Tactical frequency(ies):

3. Air operations frequency(ies):

B. Telephone Numbers:

Element 13: Public and Personnel Safety, Medical
A. Safety Hazards:

B. Mitigation: Measures Taken to Reduce the Hazards:

C. Emergency Medical Procedures:

D. Emergency Evacuation Methods:

E. Emergency Facilities:

Element 14: Test Fire
A. Planned Location:

B. Test Fire Documentation:
1. Weather conditions on-site

2. Test fire results

NWCG Prescribed Fire Plan Template 8 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 15: Ignition Plan
A. Firing Methods:
1. Techniques, sequences and patterns

B. Devices:

C. Minimum Ignition Staffing:

Element 16: Holding Plan
A. General Procedures for Holding:

B. Critical Holding Points and Actions:

C. Minimum Organization or Capabilities Needed:

Element 17: Contingency Plan
Management Action Points or Limits:
(Optional MAP Table Format)

Management Action Point– Management Action Point Narrative
Documentation Element
Designator and Description:
Condition:
Management Intent:
Recommended Action(s) to Consider:
Recommended Resources:
Time Frame:
Describe the consequences of not taking
the recommended action(s) (Optional):
Responsibility:
Date Each Action is Initiated (Optional):
(if you need to include more MAPs, copy and paste the above template)

B. Actions Needed:

C. Minimum Contingency Resources and Maximum Response Time(s):

NWCG Prescribed Fire Plan Template 9 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 18: Wildfire Declaration
A. Wildfire Declared By:

B. IC Assignment:

C. Notifications:

D. Extended Attack Actions and Opportunities to Aid in Fire Suppression (Optional):

Element 19: Smoke Management and Air Quality
A. Compliance:

B. Permits to be Obtained:

C. Smoke-Sensitive Receptors:

D. Potential Impacted Areas:

E. Mitigation Strategies and Techniques to Reduce Smoke Impacts:

NWCG Prescribed Fire Plan Template 10 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Element 20: Monitoring
A. Fuels Information Required and Procedures:

B. Weather Monitoring (Forecasted and Observed) Required and Procedures:

C. Fire Behavior Monitoring Required and Procedures:

D. Monitoring Required to Ensure that Prescribed Fire Plan Objectives are Met:

E. Smoke Dispersal Monitoring Required and Procedures:

Element 21: Post-burn Activities
A. Post-Burn Activities that must be Completed:

NWCG Prescribed Fire Plan Template 11 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Prescribed Fire Plan Appendices
Appendix A: Maps: Vicinity, Project or Ignition Units (or both), Optional: Significant or Sensitive Features, Fuels or Fuel
Model, Smoke Impact Areas

Appendix B: Technical Reviewer Checklist

Appendix C: Complexity Analysis

Appendix D: Agency-Specific Job Hazard Analysis or Risk Assessment

Appendix E: Fire Behavior Modeling Documentation or Empirical Documentation

Appendix F: Smoke Management Plan and Smoke Modeling Documentation (Optional)

NWCG Prescribed Fire Plan Template 12 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix A: Vicinity Map
Insert your vicinity maps here. Refer to Element 4D in the Interagency Prescribed Fire Planning and Implementation
Procedures Guide, PMS 484, to fill out this appendix.

NWCG Prescribed Fire Plan Template 13 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix A: Project (Ignition Units) Maps
Insert your project (ignition unit) map(s) here. Refer to Element 4D in the Interagency Prescribed Fire Planning and
Implementation Procedures Guide, PMS 484, to fill out this appendix.

NWCG Prescribed Fire Plan Template 14 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix A: Optional Maps (Fuels, Significant or Sensitive Features/Values, Smoke Receptors, etc.)
Insert your significant or sensitive values and or feature map(s) here. Refer to Element 4D in the Interagency Prescribed Fire
Planning and Implementation Procedures Guide, PMS 484, to fill out this appendix.

NWCG Prescribed Fire Plan Template 15 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix A: Fuels or Fuel Model: (Optional) Maps
Insert your fuel or fuel model map(s) here. Refer to Element 4D in the Interagency Prescribed Fire Planning and
Implementation Procedures Guide, PMS 484, to fill out this appendix.

NWCG Prescribed Fire Plan Template 16 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix A: Smoke Impact Areas: (Optional) Maps
Insert your significant or sensitive feature map(s) here. Refer to Element 4D in the Interagency Prescribed Fire Planning and
Implementation Procedures Guide, PMS 484, to fill out this appendix.

NWCG Prescribed Fire Plan Template 17 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix B: Technical Reviewer Checklist
Fill out this checklist based on the guidance provided in the Technical Review section in the Interagency Prescribed Fire Planning
and Implementation Procedures Guide, PMS 484. Rate each element in the following table with an “S” for Satisfactory or “U” for
Unsatisfactory. Use Comment field as needed to support the element rating.
PRESCRIBED FIRE PLAN ELEMENTS RATING COMMENTS
1. Signature Page
2. A. Agency Administrator Ignition Authorization
2. B. Prescribed Fire GO/NO-GO Checklist
3. Complexity Analysis Summary
4. Description of Prescribed Fire Area
5. Objectives
6. Funding
7. Prescription: Prescription Narrative and Prescription Parameters
8. Scheduling
9. Pre-Burn Considerations and Weather
10. Briefing
11. Organization and Equipment
12. Communication
13. Public and Personnel Safety, Medical
14. Test Fire
15. Ignition Plan
16. Holding Plan
17. Contingency Plan
18. Wildfire Declaration
19. Smoke Management and Air Quality
20. Monitoring
21. Post-Burn Activities
Appendix A: Maps
Appendix C: Complexity Analysis
Appendix D: Agency-Specific Job Hazard Analysis or Risk Assessment
Appendix E: Fire Behavior Modeling Documentation or Empirical
Documentation
Appendix F: Smoke Management Plan and Smoke Modeling
Documentation (Optional)
Other

☐ Approval is recommended subject to the completion of all requirements listed in the comments section, or on the Prescribed
Fire Plan.
☐ Recommendation for approval is not granted. Prescribed Fire Plan should be re-submitted for technical review subject to
the completion of all requirements listed in the comments section, or on the Prescribed Fire Plan.
Technical Reviewer Signature:

Qualification and Currency:

Date Signed:

NWCG Prescribed Fire Plan Template 18 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix C: Complexity Analysis
Please refer to Element 3: Complexity Analysis Summary in the Interagency Prescribed Fire Planning and Implementation
Procedures Guide, PMS 484, and the procedures in the Prescribed Fire Complexity Analysis Rating System Guide, PMS 424,
to fill out this appendix.

NWCG Prescribed Fire Plan Template 19 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix D: Agency-Specific Job Hazard Analysis or Risk Assessment
Please refer to your specific agency guidance to fill out this appendix.

NWCG Prescribed Fire Plan Template 20 of 23
Prescribed Fire Name:
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Ignition Unit Name:

Appendix E: Fire Behavior Modeling Documentation or Empirical Documentation
Refer to Element 7: Prescription, in the Interagency Prescribed Fire Planning and Implementation Procedures Guide, PMS
484, to fill out this appendix.

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Prescribed Fire Name:
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Ignition Unit Name:

Appendix F: Smoke Management Plan and Smoke Modeling Documentation
(OPTIONAL)
Refer to the NWCG Smoke Management Guide for Prescribed Fire, PMS 420-2, and Appendix A. Basic Smoke Management
Practices in the Interagency Prescribed Fire Planning and Implementation Procedures Guide, PMS 484, to fill out this
appendix.

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The NWCG Prescribed Fire Plan Template is developed and maintained by the Fire Use Subcommittee
(FUS), under the direction of the Fuels Management Committee (FMC), an entity of the National
Wildfire Coordinating Group (NWCG).

Previous editions: 2014.
While they may still contain current or useful information, previous editions are obsolete. The user of
this information is responsible for confirming that they have the most up-to-date version. NWCG is the
sole source for the publication.
This publication is available electronically at: https://www.nwcg.gov/publications/484-1.
Comments or questions regarding the plan should be directed to the appropriate agency representative
on the FUS. The roster is available at: https://www.nwcg.gov/committees/fire-use-subcommittee/roster.
Publications and training materials produced by NWCG are in the public domain. Use of public domain
information, including copying, is permitted. Use of NWCG information within another document is
permitted if NWCG information is accurately credited to NWCG. The NWCG logo may not be used
except on NWCG authorized information. “National Wildfire Coordinating Group,” “NWCG,” and the
NWCG logo are trademarks of NWCG.
The use of trade, firm, or corporation names or trademarks in NWCG products is solely for the
information and convenience of the reader and does not constitute endorsement by NWCG or its
member agencies or any product or service to the exclusion of others that may be suitable.

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Appendix B
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A publication of the
National Wildfire
Coordinating Group
Interagency
Prescribed Fire
Planning and
Implementation
Procedures Guide

PMS 484 JULY 2017
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Interagency Prescribed Fire Planning and
Implementation Procedures Guide
July 2017
PMS 484
The Interagency Prescribed Fire Planning and Implementation Procedures Guide establishes national
interagency standards for the planning and implementation of prescribed fire. These standards:
• Describe what is minimally acceptable for prescribed fire planning and implementation.
• Provide consistent interagency guidance, common terms and definitions, and standardized
procedures.
• Make clear that firefighter and public safety is the first priority.
• Ensure that risk management is incorporated into all prescribed fire planning and
implementation.
• Support safe, carefully planned, and cost-efficient prescribed fire operations.
• Support use of prescribed fire to reduce wildfire risk to communities, municipal watersheds and
other values, and to benefit, protect, maintain, sustain, and enhance natural and cultural
resources.
• Support use of prescribed fire to restore natural ecological processes and functions, and to
achieve land-management objectives.

The Prescribed Fire Plan, PMS 484-1, is supplemental to the Interagency Prescribed Fire Planning and
Implementation Procedures Guide, PMS 484. The plan is the site-specific legal implementation
document that provides the agency administrator the information needed to approve the prescribed fire
plan, and the prescribed fire burn boss the information needed to implement the prescribed fire plan. The
Prescribed Fire Plan, PMS 484-1, is located at: https://www.nwcg.gov/publications/484-1.

The National Wildfire Coordinating Group (NWCG) provides national leadership to enable
interoperable wildland fire operations among federal, state, tribal, and local partners. NWCG operations
standards are interagency by design; they are developed with the intent of universal adoption by the
member agencies. However, the decision to adopt and utilize them is made independently by the
individual member agencies and communicated through their respective directives systems.
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Table of Contents
Summary of Changes ................................................................................................................................ 1
Introduction ............................................................................................................................................... 1
Purpose....................................................................................................................................................... 1
Scope ....................................................................................................................................................... 2
Authorities ............................................................................................................................................... 2
Prescribed Fire Planning Documents...................................................................................................... 3
Land/Resource Management Plan........................................................................................................ 3
Fire Management Plan ......................................................................................................................... 3
Environmental Compliance required by the National Environmental Policy Act ............................... 3
Lessons Learned ........................................................................................................................................ 3
How Lessons Learned are used in the PMS 484 ..................................................................................... 4
Implementation Organization and Qualifications ................................................................................. 4
Refreshers: To Maintain Qualifications ................................................................................................. 5
Prescribed Fire Burn Boss Type 3 ........................................................................................................... 5
Responsibilities .......................................................................................................................................... 6
Agency Administrator ............................................................................................................................. 7
Fire Management Officer or Fire Program Manager or Fuels Program Manager ........................... 8
FMO, fire or fuels program manager responsibilities: ............................................................................ 8
Prescribed Fire Plan Preparer .................................................................................................................. 9
Technical Reviewer ................................................................................................................................. 9
Prescribed Fire Manager........................................................................................................................ 10
Prescribed Fire Burn Boss ..................................................................................................................... 10
Firing Boss ............................................................................................................................................. 12
Holding Function ................................................................................................................................... 12
Fire Effects Monitor .............................................................................................................................. 13
Resource Specialist ................................................................................................................................ 13
Resource Advisor .................................................................................................................................. 13
Specialized Positions ............................................................................................................................. 14
Amendments ............................................................................................................................................ 14
Safety ........................................................................................................................................................ 15
Risk Management ................................................................................................................................... 16
Prescribed Fire Plan ............................................................................................................................... 17
Element 1: Signature Page .................................................................................................................... 18
Element 2: Agency Administrator Ignition Authorization and Prescribed Fire Go/No Go Checklist . 19
Element 2A. Agency Administrator Ignition Authorization .............................................................. 19
Element 2B. Prescribed Fire Go/No-Go Checklist ............................................................................ 20
Element 3: Complexity Analysis Summary and Final Complexity ...................................................... 20
Element 4: Description of Prescribed Fire Area................................................................................... 21
A. Physical Description ..................................................................................................................... 21
B. Vegetation and Fuels Description ................................................................................................ 22
C. Description of Values ................................................................................................................... 22
D. Maps ............................................................................................................................................. 22
Element 5: Objectives ........................................................................................................................... 23
Element 6: Funding .............................................................................................................................. 23
Element 7: Prescription ........................................................................................................................ 24
Element 8: Scheduling .......................................................................................................................... 25
Element 9: Pre-burn Considerations and Weather ............................................................................... 26
A. Considerations .............................................................................................................................. 26

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B. Method and Frequency for Obtaining Weather and Smoke Management Forecast(s): ............... 26
C. Notifications ................................................................................................................................. 26
Element 10: Briefing ............................................................................................................................ 27
Element 11: Organization and Equipment............................................................................................ 28
Element 12: Communication ................................................................................................................ 29
Element 13: Public & Personnel Safety, Medical ................................................................................ 29
Safety Hazards and Mitigation ........................................................................................................... 29
Emergency Medical Procedures, Emergency Evacuation Methods, and Emergency Facilities ........ 29
Element 14: Test Fire ........................................................................................................................... 29
Element 15: Ignition Plan ..................................................................................................................... 30
Element 16: Holding Plan .................................................................................................................... 30
Element 17: Contingency Plan ............................................................................................................. 31
Element 18: Wildfire Declaration......................................................................................................... 33
Element 19: Smoke Management and Air Quality............................................................................... 34
Element 20: Monitoring ....................................................................................................................... 35
Element 21: Post-burn Activities.......................................................................................................... 35
Prescribed Fire Plan Appendices ........................................................................................................... 35
Prescribed Fire Plan Technical Review ................................................................................................ 36
Project File ............................................................................................................................................... 36
Reviews..................................................................................................................................................... 37
Outcome Reviews .................................................................................................................................. 37
Declared Wildfire Reviews ................................................................................................................... 38
Air Quality Notice of Violation Reviews .............................................................................................. 39
Additional Review Types ...................................................................................................................... 40
Before Action Review ........................................................................................................................... 40
Technical On-Site Peer Review ......................................................................................................... 41
After Action Review .......................................................................................................................... 41
Authorities ............................................................................................................................................... 42
Bibliography ............................................................................................................................................ 43
Appendix A Basic Smoke Management Practices .............................................................................. 47
Appendix B Contingency Planning Aids.............................................................................................. 47
PACE Planning ...................................................................................................................................... 47
Management Action Points ................................................................................................................... 48
Example 1 format of a MAP: ............................................................................................................. 51
Example 2 format of a MAP: ............................................................................................................. 52

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Summary of Changes
The Interagency Prescribed Fire Planning and Implementation Guide was revised to reflect
changes to the 2017 Prescribed Fire Complexity Rating System Guide, PMS 424. Significant
changes and new standards include:
• Identifies and describes how to mitigate risks to values during the prescribed fire
planning and implementation.
• Clarifies the purpose for the Complexity Analysis in Element 3: Complexity Analysis
Summary.
• Requires more robust agency administrator involvement in prescribed fire planning.
• Clarifies qualifications required for recommending and signing the final complexity and
prescribed fire plan.
• Requires that Prescribed Fire Plan amendments consider effects to prescribed fire
complexity.
• Requires that the Prescribed Fire Summary and Final Complexity Worksheet, PMS 424-1,
is signed and dated by the prescribed fire plan preparer, the technical reviewer and
agency administrator.

Introduction
Fire is an essential ecological process in many fire-dependent ecosystems. In large areas of the
country, fire exclusion from these ecosystems has led to unhealthy forest, woodland and
rangeland conditions. These areas are at risk of intense, severe wildfires that threaten
communities and cause significant damage to key ecological components.
As one component of fire management, prescribed fire is used to alter, maintain, or restore
vegetative communities; achieve desired resource conditions; and to protect life, property, and
values that would be degraded or destroyed by wildfire.

Purpose
The purpose of the PMS 484 is to provide consistent interagency guidance, promote common
terms and definitions, and provide standardized procedures, for the planning and implementation
of prescribed fire.
The PMS 484 describes what is minimally acceptable for prescribed fire planning and
implementation. Agencies may choose to provide more restrictive standards and policy direction,
but must adhere to these minimums.
The PMS 484 outlines the activities to develop single unit, multiple unit and programmatic plans
where the intent is to ignite a unit or units with active perimeter control. Single units are usually
implemented over the course of a few days. Multiple or large single units are usually
implemented over the course of many days or weeks. Programmatic plans are implemented as
single or multiple units. Large single or multiple unit and programmatic projects may span years.
Plans for long-duration, landscape-scale prescribed fires, where the intent is to ignite portions of
the unit and allow fire to move across the project area over time may require supplemental
information and analysis. This supplemental information and analysis is needed to address long-
term planning needs and implementation actions for the prescribed fire where management
actions may be dependent on fire growth and seasonal changes. Guidance for elements of the

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prescribed fire plan that may require additional attention is identified in the applicable element
section.

Scope
The PMS 484 develops common language and unified direction or guidance for federal agency
manuals, directive handbooks, and guidelines to be issued as agency policy. The PMS 484
describes what is minimally acceptable for prescribed fire planning and implementation.
Agencies may choose to provide more restrictive standards and policy direction, but must adhere
to these minimums. The PMS 484 is not intended to address interagency business rules.
Reference individual agency’s business rules for direction.
The National Wildfire Coordinating Group (NWCG) member agencies agree with the principles
identified in the PMS 484. Other federal and non-federal agencies may find it useful, but are not
required to use the PMS 484.

Authorities
Federal prescribed fire programs are guided by the principles of the 1995 Federal Wildland Fire
Management: Policy and Program Review (USDA, USDI, 1995) and the 2001 update (USDA,
USDI, et al, 2001). Federal wildland fire policy is guided by the 2009 Guidance for
Implementation of Federal Wildland Fire Management Policy (USDA, USDI, et al, 2009).
Collectively these principles establish that wildland fire programs be implemented equally,
consistently and concurrently, as a means to protect, maintain, and enhance resources. Firefighter
and public safety are emphasized as priorities in the planning and implementation of all fire
management activities.
The PMS 484 supports the 2009 Guidance for Implementation of Federal Wildland Fire
Management Policy and replaces the 2008 Interagency Prescribed Fire Planning and
Implementation Procedures Guide in its entirety. It provides unified direction and guidance for
prescribed fire planning and implementation for the U.S. Department of the Interior’s Bureau of
Indian Affairs, Bureau of Land Management, National Park Service, Fish and Wildlife Service
and the U.S. Department of Agriculture Forest Service. The National Wildfire Coordinating
Group member agencies agree with the principles identified in the PMS 484.
The PMS 484 develops common language and unified direction or guidance for federal agency
manuals, directive handbooks, and guidelines to be issued as agency policy. The PMS 484
describes what is minimally acceptable for prescribed fire planning and implementation.
Agencies may choose to provide more restrictive standards and policy direction, but must adhere
to these minimums. All use of prescribed fire will be supported by a Land/Resource
Management Plan (L/RMP) or Fire Management Plans (FMP) or by both. Prescribed fire
projects can only be implemented through an approved prescribed fire plan. Specific authorities
exist for each agency to use prescribed fire. All project decisions to use prescribed fire are
subject to the agency’s analysis, documentation, and disclosure requirements for complying with
the National Environmental Policy Act (NEPA), National Historical Preservation Act (NHPA)
and Endangered Species Act (ESA) requirements.
During prescribed fire planning and operations, all federal agencies will accept each other’s
standards for qualifications. The minimum qualifications standard is the current Wildland Fire
Qualification System Guide, PMS 310-1. State employees, local cooperators, and contractors
working on federal agency prescribed fires must meet PMS 310-1 standards unless local
agreements or contracts specify otherwise. The main reference glossary for the PMS 484 is the

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Glossary of Wildland Fire Terminology, https://www.nwcg.gov/committees/data-standards-and-
terminology-subcommittee

Prescribed Fire Planning Documents
This section describes common planning documents used to ensure quality and setting the right
objectives for prescribed fire plans.
Land/Resource Management Plan
Overall direction is provided to the wildland fire management program by Land/Resource
Management Plan (L/RMPs). These plans serve as the document to initiate, analyze, and provide
the basis for using prescribed fire to meet resource management objectives.
Fire Management Plan
All burnable acres will be covered by a fire management plan (FMP). The FMP is the
cornerstone plan for managing a wildland fire management program and should flow directly
from the L/RMP. FMPs may be developed for a fire planning unit (FPU) that crosses
jurisdictional boundaries. Where the wildland fire management program crosses jurisdictional
boundaries, the FMP will require interagency coordination.
Environmental Compliance required by the National Environmental Policy Act
Objectives for specific prescribed fire projects are evaluated and analyzed in the National
Environmental Policy Act (NEPA) analysis. The entire prescribed fire project area must be
approved under NEPA. NEPA document types that identify and analyze the effects of using or
not using prescribed fire treatment projects may include Environmental Impact Statements (EIS),
Environmental Assessments (EA), and Categorical Exclusions (CE).
Other authorities that may be used to guide analysis and determination of NEPA compliance are
Healthy Forest Restoration Act (HFRA), the Tribal Forest Protection Act (TFPA) and the
National Cohesive Wildland Fire Management Strategy (Cohesive Strategy) (USDA, USDI, et
al, 2011).
Prescribed fire planning, and related NEPA analysis, should always occur at the largest possible
spatial and temporal scales.
Project NEPA analysis and decisions should consider a risk analysis that examines the trade-offs
among various alternatives including the no-actio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4558232. Public record. Not legal advice.