finding that “[t]he extent and type of the Forest Service’s flight training is a matter left to the agency’s discretion and is susceptible to policy analysis”
How later courts described this case
- finding that “[t]he extent and type of the Forest Service’s flight training is a matter left to the agency’s discretion and is susceptible to policy analysis”
- holding that a general regulation or policy does not remove discretion unless it “specifically prescribes a course of conduct”
- stating that discretion existed when safety policy did not mention, let alone prescribe a specific course of conduct
- discretionary function exception did not apply where a member of the Blackfeet Tribe was fatally injured by a falling tree due to the government’s “failure to effectuate policy choices already made”
Written by the judges who cited it.
The opinion
FERGUSON, Circuit Judge,
concurring:
I concur in Judge McKeown’s opinion. I write to emphasize the facts surrounding the airplane crash.
On the final run of the day when they taxied out for takeoff, the pilots made mistakes, including failing to enter read back instructions from the central tower or communicate the read back to each other and crossing an active runway without permission from the traffic controller. However, they were extremely well-qualified and experienced pilots. Both of them had received some formal crew resource management (“CRM”) training and both pilots consistently demonstrated proficiency in crew coordination.
When Kelly and Lynn arrived at the fire, they entered a circular holding pattern and contacted ground firefighters for instructions. After receiving the requested drop pattern, the tanker left its orbit and began descending. At that point, something went wrong. The district court, adopting the findings of the government’s reconstruction expert, found that when the crew attempted to activate the tanker’s auxiliary jet engines in preparation for the run, the engines “flamed out,” probably because the crew had failed to transfer fuel from the plane’s main tanks to the outboard tanks while en route to the fire. The crew then attempted to re-start the engines by descending in order to gain airspeed, which would allow them to “air start” the jets without having to use the mechanical starter. In the process, however, both Kelly and Lynn became focused on trying to re-start the engines, and both lost “situational awareness” — meaning that neither one was paying attention to the surrounding terrain. During this time, the plane entered a narrow drainage at a dangerously low altitude. By the time the crew regained situational awareness and became aware of the danger, it was too late to turn around or climb out of the drainage. After jettisoning part of its retardant load, presumably a last-ditch effort to shed weight, the plane crash landed in thick timber at the upper end of the drainage. Both Kelly and Lynn survived the crash essentially uninjured, but were engulfed by flames while trying to escape the burning aircraft. Both men died of burns at the scene.
The cause of pilot error was 1) a captain who was worn out and fatigued and 2) a *765 loss of situational awareness that led to the entry into a blind canyon from which the plane could not escape. In plain language the pilots were not watching where they were going.
If there ,is one thing that all of us learn from the time that we begin to walk, ride a tricycle, rollerskate, drive a car, pilot an airplane, it is to understand an absolute, imperative, simple basic rule — watch where you are going. Here, the pilots did not. The government cannot be faulted. The Federal Tort Claims Act does not make the Government an insurer.