Petition for Writ of Certiorari — Jade Mound, et al., Petitioners v. United States
Supreme Court briefAug 30, 2023
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APPENDIX TABLE OF CONTENTS
Page
United States Court of Appeals for the Eighth
Circuit, Opinion, June 9, 2023 ......................... App. 1
United States Court of Appeals for the Eighth
Circuit, Judgment, June 9, 2023...................... App. 7
United States District Court for the District of
North Dakota, Order Granting Defendant’s
Motion to Dismiss, March 15, 2022 ................. App. 9
28 U.S.C. § 1346. United States as defendant ....App. 46
28 U.S.C. § 2680. Exceptions ............................. App. 49
App. 1
United States Court of Appeals
For the Eighth Circuit
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No. 22-1721
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Jade Mound, and on behalf of the heirs at law
Personal Representative Trudy Peterson estate of
Trudy Peterson; Ron Vander Wal, and on behalf of
the heirs at law Personal Representative
James Vander Wal estate of James Vander Wal;
Evan Thompson; Steven Willard; Sonja Willard
Plaintiffs - Appellants
v.
United States of America
Defendant - Appellee
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: December 14, 2022
Filed: June 9, 2023
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Before LOKEN, MELLOY, and KOBES, Circuit Judges.
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App. 2
KOBES, Circuit Judge.
Plaintiffs-Appellants sued the United States under the Federal Tort Claims Act (FTCA), alleging that
the Standing Rock Sioux Tribe failed to warn motorists
of unsafe road conditions. The district court1 held that
it lacked subject matter jurisdiction, and we affirm.
I.
The Bureau of Indian Affairs is responsible for
maintaining Indian reservation roads, but eligible
tribes can take over this duty in exchange for federal
funding. The Standing Rock Sioux Tribe contracted
with the BIA to maintain the roads within the Standing Rock Reservation. The contract provided that the
Tribe would “preserve, upkeep and restore” roads
“within available funding.” The “frequency and type
of maintenance” would “be at the discretion of the
[Tribe], taking into consideration traffic requirements,
weather conditions and the availability of funds.”
Other parts of the contract had similar language.2
In 2014, the Tribe identified a culvert—a structure
that channels water under a road—as a potential
maintenance project. In 2018, based on an engineering
1
The Honorable Daniel L. Hovland, United States District
Judge for the District of North Dakota.
2
For example, the contract provided that the Tribe would
“ensure . . . the safety” of “roads and bridges” in accordance with
the Tribe’s chosen maintenance standard, but that the Tribe
would do so “[s]ubject to the availability of funding” and “to the
greatest extent feasible given the limitations of contract funding.”
App. 3
assessment, the Tribe decided to replace the culvert.
Because its existing contract did not authorize funding
for the project, the Tribe sought a new contract with
the BIA. Before the new contract was finalized, heavy
rains collapsed the culvert, leaving a large gap in the
road. Four cars drove into the gap and plunged into the
water. Trudy Peterson and James Vander Wal were
swept downstream and died. Evan Thompson and
Steven Willard suffered serious injuries.
The Plaintiffs are the estates and heirs of Peterson
and Vander Wal, along with Thompson, Willard, and
Willard’s wife. Together, they brought an FTCA claim,
alleging that the Tribe negligently failed to warn them
of unsafe road conditions. Specifically, they alleged
that the Tribe knew the culvert was at risk of collapse
and should have posted a sign reading: “Culvert washout potential ahead. Proceed with caution in rainstorm.”
The United States moved to dismiss. See Hinsley
v. Standing Rock Child Protective Servs., 516 F.3d 668,
672 (8th Cir. 2008) (explaining that under the FTCA,
“[t]ort claims against [contracting] tribes . . . are considered claims against the United States”). The district
court granted the motion, holding that it lacked subject
matter jurisdiction under the FTCA’s discretionary
function exception.
App. 4
II.
We review a district court’s dismissal for lack of
subject matter jurisdiction de novo. Herden v. United
States, 726 F.3d 1042, 1046 (8th Cir. 2013).
As a sovereign, the United States is immune from
suit. Peterson v. United States, 428 F.2d 368, 369 (8th
Cir. 1970). It has waived immunity in some FTCA
cases, see 28 U.S.C. § 1346(b)(1), but expressly retains
immunity in cases involving “a discretionary function
or duty.” Id. § 2680(a). If the discretionary function exception applies, “it is a jurisdictional bar to suit.”
Herden, 726 F.3d at 1046 (citation omitted).
To determine whether this case involves “a discretionary function or duty,” we apply a two-step test. See
United States v. Gaubert, 499 U.S. 315, 322–23 (1991).
The Plaintiffs do not appear to contest that the first
step of the test—that the conduct at issue “involve[d]
an element of judgment or choice”—is satisfied.3 Id. at
322 (cleaned up). So, we only need to consider step two:
whether the Tribe’s decision about whether to warn
motorists of unsafe road conditions is “of the kind that
the discretionary function exception was designed to
3
Even if we were to consider the first step of Gaubert, we
agree with the district court that it is satisfied. If a “federal statute, regulation, or policy specifically prescribes a course of action
for an employee to follow,” then the discretionary function exception does not apply because the decision does not involve judgment or choice. Gaubert, 499 U.S. at 322 (citation omitted). Here,
there was no federal statute, regulation, or policy requiring the
Tribe to erect warning warns. The Tribe had discretion over how
to maintain roads located within the Standing Rock Reservation,
including whether to warn motorists of unsafe road conditions.
App. 5
shield.” Id. at 322–23 (citation omitted). Because the
exception is meant to “prevent judicial second-guessing of . . . decisions grounded in social, economic, and
political policy,” id. at 323 (cleaned up), we ask whether
the conduct at issue was “susceptible to policy analysis,” id. at 325.
In Demery v. U.S. Department of Interior, we found
that a similar failure-towarn challenge failed because
it was “susceptible to policy analysis.” 357 F.3d 830,
834 (8th Cir. 2004). There, a woman drowned after
driving her snowmobile into a lake. Id. at 832. At the
time, the BIA was aerating the lake to prevent it from
freezing. Id. The plaintiff alleged that the BIA failed to
mark the open water properly and to warn the public
of its dangers. Id. Considering step two of the Gaubert
test, we held that the decision about whether to warn
was “susceptible to a policy analysis that weighs the
benefits of the warning (e.g., increased safety) with its
costs (e.g., the cost of erecting the warnings).” Id. at
834. Here, the Tribe’s decision about whether to erect
warning signs also required a balance of safety versus
cost. The Plaintiffs emphasize that there is no evidence
that the BIA ever performed this weighing. But the
BIA did not need to make a “conscious decision regarding policy factors so long as the decision [about
whether to warn] was susceptible to a balancing of
public policy objectives.” Metter v. United States, 785
F.3d 1227, 1233 (8th Cir. 2015) (citation omitted).
The Plaintiffs further emphasize that the Tribe’s
only policy interest is funding, yet the cost of a warning
sign would have been de minimis. They argue that our
App. 6
holding today will nullify the United States’ waiver of
sovereign immunity because every contract with a
“subject to available funding” clause would invoke
the discretionary function exception. But we have considered this argument before and rejected it. In Walters
v. United States, we held that the discretionary function exception shielded the government from suit
“[b]ecause the applicable regulations expressly required the BIA to consider the availability of funds
in deciding whether to perform maintenance on its
roads.” 474 F.3d 1137, 1140 (8th Cir. 2007). We see no
reason to depart from our precedent, especially where
the United States has “reserved to itself the right to
act without liability for misjudgment and carelessness
in the formulation of policy.” Id. (citation omitted).
Plaintiffs “have failed to rebut the presumption that
the [Tribe’s] decision not to post warning signs was
grounded in policy.” Metter, 785 F.3d at 1232 (citing
Gaubert, 499 U.S. at 323–24).
III.
Because we lack subject matter jurisdiction under
the FTCA’s discretionary function exception, we affirm.
App. 7
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
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No: 22-1721
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Jade Mound, and on behalf of the heirs at law
Personal Representative Trudy Peterson estate of
Trudy Peterson; Ron Vander Wal, and on behalf of
the heirs at law Personal Representative
James Vander Wal estate of James Vander Wal;
Evan Thompson; Steven Willard; Sonja Willard
Plaintiffs - Appellants
v.
United States of America
Defendant - Appellee
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Appeal from U.S. District Court for the
District of North Dakota—Western
(1:21-cv-00081-DLH)
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JUDGMENT
(Filed Jun. 9, 2023)
Before LOKEN, MELLOY and KOBES, Circuit Judges.
This appeal from the United States District Court
was submitted on the record of the district court, briefs
of the parties and was argued by counsel.
App. 8
After consideration, it is hereby ordered and adjudged that the judgment of the district court in this
cause is affirmed in accordance with the opinion of this
Court.
June 09, 2023
Order Entered in Accordance with Opinion:
Clerk, U.S. Court of Appeals, Eighth Circuit.
/s/ Michael E. Gans
App. 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Mound et al.,
Plaintiffs,
vs.
The United States
of America,
Defendant.
)
) ORDER GRANTING
) DEFENDANT’S
) MOTION TO DISMISS
)
) (Filed Mar. 15, 2022)
) Case No. 1:21-cv-081
)
Before the Court is the United States’ “Motion to
Dismiss Complaint or in the alternative Dismiss Jurisdictionally Deficient Claims,” filed on August 13, 2021.
See Doc. No. 8. The Plaintiffs filed a response in opposition to the motion on October 8, 2021. See Doc. No.
19. The United States filed a reply on October 22, 2021.
See Doc. No. 23. On October 27, 2021, the Plaintiffs
filed a motion for a hearing. See Doc. No. 24. The
United States filed a response in opposition to the
Plaintiffs’ motion on October 28, 2021. See Doc. No. 25.
On November 15, 2021, the Court granted the motion
for a hearing. See Doc. No. 27. On January 19, 2022,
the Court held a hearing on the motion. See Doc. No.
30. The parties submitted post-hearing memorandums
on January 26, 2022. See Doc. Nos. 32 and 33. The motions are now fully briefed and ripe for consideration.
App. 10
I.
BACKGROUND
This action arises from two fatal accidents and
personal injuries that occurred on the Standing Rock
Indian Reservation in North Dakota. On July 9, 2019,
heavy rains caused flooding and washed out the Kenel
Road culvert located along Bureau of Indian Affairs
(“BIA”) Route 3 on the Standing Rock Indian Reservation near Fort Yates, North Dakota. See Doc. No. 1. The
washout created a deep crevice in the road that was
undetectable in the early morning hours. Trudy Peterson (“Peterson”), James Vander Wal (“Vander Wal”),
Steven Willard (“Willard”), and Evan Thompson (“Thompson”) each mistakenly drove into the deep gap caused
by the washout. Peterson and Vander Wal were swept
away downstream and died. Willard and Thompson
suffered serious injuries but were rescued from the
deep gaping chasm depicted below:
App. 11
On April 8, 2021, Jade Mound, as Personal Representative of Trudy Peterson’s estate and on behalf of
the heirs at law; Ron Vander Wal as Personal Representative of James Vander Wal’s estate and on behalf
of the heirs at law; Evan Thompson, Steve Willard, and
Sonja Willard (“Plaintiffs”), filed a complaint against
the United States of America. See Doc. No. 1. The
Plaintiffs brought their action against the United
States under the Federal Tort Claims Act (“FTCA”) 28
U.S.C. §§ 1346(b), 2671-1680. Id.
The complaint alleges claims of negligence and
survival actions. See Doc. No. 1, p. 12-17. Specifically,
Count I of the complaint alleges the United States was
negligent in maintaining the safety of the Kenel Road
and culvert which resulted in the wrongful death of
Trudy Peterson; Count II alleges Trudy Peterson’s survival action; Count III alleges the United States was
negligent in maintaining the safety of the Kenel Road
and this resulted in the wrongful death of James
Vander Wal; Count IV alleges James Vander Wal’s survival action; Count V alleges the United States was
negligent in maintaining the safety of the Kenel Road
which resulted in the injury of Steven Willard and
Sonja Willard; and Count VI alleges the United States
was negligent in maintaining the safety of the Kenel
Road which resulted in the injury of Evan Thompson.
In their prayer for relief, the Plaintiffs seek prejudgment and post judgment interest and damages against
the United States in an amount to be determined at
trial. See Doc. No. 1, p. 18.
App. 12
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) governs
motions to dismiss for lack of subject matter jurisdiction. “Subject matter jurisdiction defines the court’s
authority to hear a given type of case.” Carlsbad Tech.,
Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). Jurisdictional issues are a matter for the court to resolve prior
to trial. Osborn v. United States, 918 F.2d 724, 729 (8th
Cir. 1990). The Plaintiff bears the burden to prove subject matter jurisdiction exists. Herden v. United States,
726 F.3d 1042, 1046 (8th Cir. 2013).
“A court deciding a motion under Rule 12(b)(1)
must distinguish between a ‘facial attack’ and a ‘factual attack’ on jurisdiction.” Osborn, 918 F.2d at 729
n.6. In a facial attack, “the court restricts itself to the
face of the pleadings, and the non-moving party receives the same protections as it would defending
against a motion brought under Rule 12(b)(6).” Id. (internal citations omitted). “In a factual attack, the court
considers matters outside the pleadings, and the nonmoving party does not have the benefit of 12(b)(6) safeguards.” Id. (internal citation omitted). If a defendant
wishes to make a factual attack on “the jurisdictional
allegations of the complaint, the court may receive
competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual
dispute. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.
1993).
In this case, the United States asserts a factual
attack on jurisdiction by raising the discretionary
App. 13
function exception. The Court may consider matters
outside the pleadings. See Buckler v. United States,
919 F.3d 1038, 1044 (8th Cir. 2019); Harris v. P.A.M.
Transp., Inc., 339 F.3d 635, 637 n. 4 (8th Cir. 2003).
III. LEGAL ANALYSIS
The United States requests the Court dismiss the
Plaintiffs’ complaint because the discretionary function exception to the FTCA applies and immunizes the
United States from suit. In the alternative, the United
States seeks to dismiss the jurisdictionally deficient
survival action claims, as well as Sonja Willard’s negligence claim. The Plaintiffs contend the Court has
subject matter jurisdiction because the discretionary
function exception does not apply, and the Plaintiffs
have satisfied the FTCA’s presentment requirement
for the survival action claims and loss of consortium
claims. The United States maintains the Court does
not have jurisdiction because the Standing Rock Sioux
Indian Tribe (“the Tribe”) had discretion, subject to
policy considerations, including available funding, in
deciding which road maintenance projects to undertake. The United States argues the discretionary
function exception protects that judgment, choice, or
conduct under the Indian Self-Determination and
Education Assistance Act (“ISDEAA”), the Road Maintenance Project (“RMP”), and the relevant Tribal Transportation Program (“TTP”) Contracts.
It is well-settled that the United States, as sovereign, is immune from suit unless it has consented to be
App. 14
sued. Peterson v. United States, 428 F.2d 368, 369 (8th
Cir. 1970). In 1946, Congress passed the FTCA, a limited waiver of the United States’ sovereign immunity,
to permit persons injured by government employees to
sue the United States for damages in federal district
court. Mader v. United States, 654 F.3d 794, 797 (8th
Cir. 2011). The Act allows suits against the United
States for “personal injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his
office or employment, under circumstances where the
United States, if a private person, would be liable to
the claimant.” 28 U.S.C. § 1346(b)(1). However, Congress integrated several statutory exceptions to the limited waiver of the United States sovereign immunity
including the discretionary function exception, which
provides, “[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). “If a case falls within this statutory exception to the Federal Tort Claims Act, the Court lacks
subject matter jurisdiction.” See Demery v. U.S. Dept
of Interior, 246 F. Supp. 2d 1060, 1063 (D.N.D. 2003),
aff’d, 357 F.3d 830 (8th Cir. 2004).
“Though discretionary function is a difficult concept to specifically define, the Supreme Court has
stated that it includes initiation of programs and activities as well as determinations made by executives
or administrators in establishing plans, specifications
App. 15
or schedules of operations.” Id. (citing E. Ritter & Co. v.
Department of Army, Corps of Engineers, 874 F.2d
1236, 1240 (8th Cir. 1989)). Under 28 U.S.C. § 2680(a),
claims against the United States are prohibited under
the discretionary function exception that are “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.” Id. The discretionary function exception
“marks the boundary between Congress’ willingness to
impose tort liability upon the United States and its
desire to protect certain governmental activities from
exposure to suit by private individuals.” Dykstra v.
U.S. Bureau of Prisons, 140 F.3d 791, 795 (8th Cir.
1998). The purpose of the discretionary function exception is to prevent the “judicial second-guessing of legislative and administrative decisions grounded in
social, economic, and policy through the medium of an
action in tort.” United States v. Gaubert, 499 U.S. 315,
323 (1991). The application of the discretionary function exception is a jurisdictional issue, which precedes
any negligence analysis. See Johnson, 949 F.2d at 335.
Whether the discretionary function exception applies is “governed by the nature of the conduct at issue,
rather than the status of the actor.” Berkovitz v. U.S.,
486 U.S. 531, 536 (1988). In determining whether the
discretionary function exception applies, the Court
must consider whether the Government employee’s
action involved an element of judgment or choice. Id.
If the challenged conduct involves an element of
App. 16
judgment or choice, the Court must then determine
whether the judgment “is of the kind that the discretionary function exception was designed to shield.” Id.
A. MAINTENANCE OF BIA ROUTE 3 –
THE KENEL ROAD
The BIA, as a “public authority” under 23 U.SC.
§ 101(a)(21), is responsible for maintaining roads identified as “BIA System Roads” on the National Tribal
Transportation Facility Inventory (“NTTFI”). See Doc.
No. 11 at ¶ 4; 23 U.S.C. § 202(a)(8)(B)(i) (“BIA shall retain primary responsibility, including annual funding
request responsibility, for [BIA] road maintenance programs on Indian reservations.”). BIA Route 3, locally
known as the Kenel Road, is listed on the NTTFI. See
Doc. No. 11 at ¶ 10.
The BIA’s principal mechanism for maintaining
its roads is the BIA’s Road Maintenance Program
(“RMP”), which describes maintenance activities
funded by appropriations from the Department of the
Interior and authorized by 25 U.S.C. §318a. See Doc.
No. 11 at ¶ 5. The Secretary of Interior, on behalf of the
BIA, makes an annual funding request to Congress for
the RMP, as required by 23 U.S.C. § 202(a)(8)(B)(i).
See Doc. No. 11 at ¶ 6. The RMP is not a statutorily
defined program like the TTP, nor is it governed by any
specific rules or regulations. It is a source of funds used
to maintain roads on Indian reservations.
The Tribal Transportation Program (“TIP”) is
authorized by 23 U.S.C. § 202 with implementing
App. 17
regulations at 25 C.F.R. Pt. 170, and funded by appropriations from the U.S. Department of Transportation
(“US-DOT”). The program allows tribes to direct certain of their TTP funds towards the maintenance of
any roads on the NTTFI, including roads owned by
BIA. See Doc. No. 11 at ¶ 5.
The BIA does not have to perform road maintenance activities but it can assume road maintenance
responsibilities. See Doc. No. 11 at ¶ 7. In the Indian
Self-Determination and Education Assistance Act, P.L.
93-638 (“ISDEAA”), as amended, 25 U.S.C. §§ 5321, et
seq., Congress said, “The Secretary [of the Interior] is
directed, upon the request of any Indian tribe by tribal
resolution, to enter into a self-determination contract
or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof, including construction programs[.]” 25 U.SC. § 5321(a).
Such a contract is known as a “638 contract” or “selfdetermination contract.” “Under a self-determination
contract, the federal government supplies funding to a
tribal organization, allowing the tribal organization to
plan, conduct, and administer a program or service
that the federal government otherwise would have provided directly.” FGS Constructors. Inc. v. Carlow Enters., 64 F.3d 1230, 1234 (8th Cir. 1995). The Standing
Rock Sioux Tribe was responsible for carrying out TTP
and RMP road maintenance activities on the Standing
Rock Indian Reservation.
Even though the Tribe took on road maintenance
activities, under the ISDEAA and the FTCA the
United States is the proper party in the present case.
App. 18
Congress extended the FTCA’s limited waiver of sovereign immunity to include civil actions or proceeding
involving claims arising from the performance of functions under a self-determination contract. Further,
“any civil action or proceeding involving such claims
brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee” based upon
the performance of self-determination contracts “shall
be deemed to be an action against the United States”
and “be afforded the full protection and coverage of the
Federal Tort Claims Act.” Pub. L. 101-512, Title III,
§ 314, as amended Pub. L. 103-138, Title III, § 308 (codified at 25 U.S.C. §5321 and Notes).
The Tribal Transportation Program (“TTP”) is explicitly subject to the ISDEAA. 23 U.S.C. § 202(b)(6)(A):
Notwithstanding any other provision of law or
any interagency agreement, program guideline, manual, or policy directive, all funds
made available through the Secretary of the
Interior under this chapter and section 125(e)
for tribal transportation facilities to pay for
the costs of programs, services, functions, and
activities, or portions of programs, services,
functions, or activities, that are specifically or
functionally related to the cost of planning, research, engineering, and construction of any
tribal transportation facility shall be made
available, upon request of the Indian tribal
government, to the Indian tribal government
for contracts and agreements for such planning, research, engineering, and construction
in accordance with [ISDEAA].
App. 19
It is undisputed that the maintenance of roads on the
NTTFI is an authorized use of TTP funds. 25 C.F.R. Pt.
170, Subpart G, Maintenance. Any maintenance activities under the BIA’s Road Maintenance Program
(“RMP”) also fall within the broad parameters of the
ISDEAA and are routinely the subject of self-determination contracts. See Doc. No. 11 at ¶ 8.
The Standing Rock Sioux Tribe undertook TTP
and RMP road maintenance activities under two
self-determination contracts. The contracts covered
maintenance activities on roads owned by the Tribe
and the BIA on the Standing Rock Indian Reservation,
including BIA Route 3 (Kenel Road). See Doc. No. 12 at
¶3. For purposes of administering road maintenance
activities the Tribe stands in the shoes of the United
States. The Tribe’s actions and decisions are under the
same authority and carry the same protections – including jurisdictional limitations and applicable defenses afforded under the FTCA – the United States
would have if the BIA was providing road maintenance
by direct services.
1. STANDING ROCK SIOUX TRIBE’S ROAD
MAINTENANCE SELF-DETERMINATION
CONTRACTS
On May 3, 2016, the Tribe passed Tribal Resolution No. 204-16 approving the Tribe’s renewal of a prior
self-determination contract to allow the Tribe to administer road maintenance under the BIA’s RMP and
TTP:
App. 20
WHEREAS, the Tribal Council finds that
transportation infrastructure is vital to the
future economic prosperity and safety of Tribal
members living on and near the Standing
Rock Reservation; and
WHEREAS, the Tribe has assumed, under contracts and agreements with the Bureau of Indian Affairs [BIA] within the U.S. Department
or the Interior and the Federal Highway Administration [FHWA] within the U.S. Department
of Transportation, the duties of the United
States for Indian Reservation Roads [IRR]
Program and the BIA Road Maintenance Program [RMP] serving the Standing Rock Reservation, thereby consolidating transportation
planning, design, construction engineering,
maintenance and al related and contractible
duties under the auspices of the Standing
Rock Sioux Tribe . . . [.]
Tribal Resolution No. 204-16 is found at Attachment 1 of
the self-determination contract designated A17AV00461
(“RMP Contract”). See Doc. No. 12 at 4. The Tribe
maintains nearly 200 miles of road on the Standing
Rock Indian Reservation using TTP and RMP funding.
Id. at ¶ 3.
a) Road Maintenance Program SelfDetermination Contract A17AV00461
Pursuant to the ISDEAA, and as a result of the
BIA’s RMP Contract, the Tribe took responsibility
for road maintenance and related duties, including
the operation of both RMP and TTP funded road
App. 21
maintenance activities. The RMP is administered by
the BIA with appropriations arising under the Department of Interior’s BIA-services budget. RMP funds
may be used only for the maintenance of existing BIAowned roads identified on the NTTFI. See Doc. No. 11
at ¶ 8. Nationally, total RMP appropriations average
around $32 million annually. However, there are over
29,000 miles of BIA-owned roads on the NTTFI. Winter maintenance activities involving snow and ice removal often deplete RMP funds available to tribes in
the northern or mountainous regions of the country,
meaning less funding is available for other maintenance activities. See Doc. No. 11 at ¶ 8.
The BIA awarded the Tribe the RMP Contract to
transfer the funding and related functions, services,
activities, and programs “from the Federal Government to the Tribe for the daily administration and operation of the BIA Road Maintenance Program serving
the Standing Rock Sioux Tribe.” See Doc. Nos. 12 at ¶ 4
and 12-1 at Sec. (a)(2). The RMP Contract period ran
from October 1, 2016, to September 30, 2019. It was
one of two self-determination road maintenance contracts in effect at the time of the washout. See Doc. No.
12 at ¶ 4. The RMP Contract described the Tribe’s intention to take on as much road maintenance responsibility as possible:
The Tribe seeks to contract all road maintenance and related function required to preserve, upkeep and restore eligible Indian
Reservation Roads, including but not limited
to the BIA Road system and Tribal Road
App. 22
system located on the Reservation, rights-ofway and structures, as nearly possible or practicable to their original condition within available funding, . . . .
RMP Contract, Sec. (a)(2).
b) Tribal Transportation Program SelfDetermination Contract A18AV01079
The second road maintenance self-determination
contract addressed TTP funds. TTP funds may be used
for transportation planning, research, maintenance,
engineering, rehabilitation, restoration, construction,
and reconstruction of tribal transportation facilities.
23 U.S.C. § 202(a)(1). Congressionally allocated TTP
funds are divided among Indian tribes based on a formula set out in 23 U.S.C. § 202(b)(3). Pursuant to 23
U.S.C. § 202(b)(2), the TTP is governed by the Department of Interior regulations published at 25 C.F.R.
Part 170. The TTP is a separate program from BIA’s
RMP; however, in a self-determination contract context, both can be administered by a tribe’s Tribal transportation department. See Doc. No. 11 ¶ 9; C.F.R.
§ 170.930.
Although the TTP is primarily focused on planning, design, construction and improvement, tribes
may use the greater of $500,000 or 25% of their annual
“tribal share” funds (“25% Tribal Transportation Program” or “25% TTP Funds”) for “maintenance.” 23
U.S.C. § 202(a)(8)(A). Federal law defines “maintenance” as “the preservation of the entire highway,
App. 23
including surface, shoulders, roadsides, structures, and
such traffic-control devices as are necessary for safe
and efficient utilization of the highway.” 23 U.S.C.
§ 101(a)(13).
On May 9, 2017, the Tribe adopted Tribal Resolution No. 209-17 to take on the administration of its 25%
TTP Funds. Tribal Resolution No. 209-17 is found at
Attachment 1 of the self-determination contract designated A18AV01079 (“TTP Contract”). See Doc. Nos. 12
at ¶ 5 and 12-2. The resolution said, inter alia:
WHEREAS, the Standing Rock Sioux Tribe
can allow the BIA to administer the funds
through direct service, or the Tribe can assume the duties of the BIA under an Indian
Self-determination Act, Public Law 93-638
contract; and
WHEREAS, the Standing Rock Sioux Tribe
has by Resolution No. 306-14 created a new
road construction priorities list from 20142019, known as a Tribal Transportation Improvement Plan (“TTIP”), which includes, but
not limited to Administration/Management,
25% Road Maintenance allocation, Pavement
improvement, Kenel Road (BIA 3) culvert replacement, INFINCE-loan repayment, Planning; and
...
NOW THEREOFRE BE IT RESOLVED, that
the Standing Rock Sioux Tribal [sic] will pursuant to the Public law 93-638 assume the duties of the BIA to plan, design, pre-construct
App. 24
and construct eligible roads and bridges on
the Standing Rock Sioux Indian Reservation
for all the projects listed on the TTIP in Resolution No. 306-14 and this resolution[.]
The Tribal Transportation Improvement Program
(“TTIP”), referenced in the TTP Contract, is a publicly
available, Federal Highway Administration-approved
planning document identifying the TTP-eligible projects the Tribe proposes to undertake over the next five
fiscal years, using its discretion as a public authority
to prioritize those projects on the basis of social, economic, or political goals and taking into consideration
such things as utility to the Tribe, safety, availability
of funding, competing Tribal interests, and other policy
objectives a sovereign entity may have. See Doc. No. 11
at ¶ 11.
The BIA and the Tribe entered into the TTP Contract, effective August 20, 2018, for a three-year term
and the TTP Contract was in effect at the time of the
washout. See Doc. No. 12 at ¶ 5. The purpose of the TTP
Contract was “to transfer the funding and following related functions, services, activities, and programs . . .
from the Federal Government to the Tribe for the daily
administration and operation of the 25% Tribal Transportation Program serving the Standing Rock Sioux
Tribe.” See Doc. No. 12-2, TTP Contract, Sec. (a)(2).
App. 25
B. WHETHER THE ACTION IS A MATTER
OF JUDGMENT OR CHOICE FOR THE
ACTING EMPLOYEE
The United States contends the Tribe’s road
maintenance activities involve elements of judgment,
choice, or discretion, subject to policy considerations
including the availability of funding, to determine
what road maintenance to undertake. The United
States also contends the road maintenance decisions
are not reviewable under the FTCA. The Plaintiffs argue that road maintenance judgments or decisions are
not discretionary and do not contain a matter of judgment or choice for the Tribe.
The United States Supreme Court has established
a two-step test to determine whether a claim falls under the discretionary function exception to the waiver
of sovereign immunity. See United States v. Gaubert,
499 U.S. 315 (1991); Berkovitz v. United States, 486
U.S. 531 (1988). “The first inquiry is whether the challenged conduct or omission is truly discretionary, that
is, whether it involves an element of judgment or
choice instead of being controlled by mandatory statutes or regulations. Herden v. United States, 726 F.3d
1042, 1046 (8th Cir. 2013). “Where there is room for
policy judgment and decision there is discretion.”
United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (“Varig Airlines”), 467 U.S. 797, 811 (1984).
“When established government policy . . . allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy
when exercising that discretion.” Demery, 357 F.3d at
App. 26
833. Discretion does not exist only when a “federal
statute, regulation, or policy specifically prescribes a
course of action for an employee to follow[.]” Gaubert,
499 U.S. at 322.
If the challenged act or omission violated a mandatory, rule, regulation, or policy that allowed no
judgment or choice, the discretionary function exception will not apply because “there was no element of
judgment or choice in the conduct at issue.” Gaubert,
499 U.S. at 322. Even if a government policy may contain a mandatory provision, the action may remain discretionary if it involved an “element of judgment or
choice.” Comparts Boar Store, Inc. v. United States, 829
F.3d 600, 605 (8th Cir. 2016). The language of the discretionary function exception mandates whether an
action is a matter of judgment or choice. Berkovitz.,
486 U.S.at 536. “[C]onduct cannot be discretionary unless it involves an element of judgment or choice.” Id.
Therefore, when a federal statute, rule, policy, or regulation specifically prescribes a course of action for an
employee to follow, the exception will not apply. Id.
Conversely, when no federal mandate is found, the employee’s conduct is considered to be the product of judgment or choice and the Court’s first step inquiry is
satisfied. See Demery, 246 F.Supp.2d at 1065.
The government action at issue here is the BIA
and the Tribe’s prioritization of road maintenance activities, including the Kenel Road repairs along BIA
Route 3. The Court must turn to the contracts and regulations to determine whether the BIA and the Tribe’s
actions were a matter of judgment or choice. The BIA’s
App. 27
Road Maintenance Project (“RMP”) sets out what
maintenance activities the Department of the Interior
(“DOI”) will fund under 28 U.S.C. § 318a. See Doc. No.
12-1. The Tribal Transportation Program (“TTP”), codified at 23 U.S.C. § 202, with implementing regulations
at 25 C.F.R. Pt. 170, is funded by the U.S. Department
of Transportation (“DOT”) and jointly administered
with the DOI. The TTP allows tribes to appropriate
funds towards the maintenance of any roads on the
roads found on the National Tribal Transportation Facility Inventory (“NTTFI”). As previously noted, the
BIA Route 3 is listed on the NTTFI.
The Court notes there are no specific statutes,
rules, regulations, policies, or mandates in the RMP
that require the BIA and Tribe to perform road maintenance in a certain way. Section (a)(2) (Doc. No. 12-1) of
the RMP states:
The Tribe seeks to contract all road maintenance and related function required to preserve, upkeep and restore eligible Indian
Reservation Roads, including but not limited
to the BIA Road system and Tribal Road system located on the Reservation, rights-of-way
and structures, as nearly as possible or practicable to their original condition within available funding,
...
The degree or extent of maintenance to be
performed shall be in accordance with Tribal
standards and specifications contained in
this Contract. The frequency and type of
App. 28
maintenance shall be at the discretion of the
authorities charged thereof, taking into consideration traffic requirements, weather conditions and the availability of funds. (emphasis
added).
Section (b)(4)(C) and (D) (Doc. No. 12-1) of the
RMP states:
Subject to the availability of funding, the
Tribe shall administer the Road Maintenance
program, functions, services and activities
contracted herein to ensure – to the greatest
extent feasible given the limitations of contract funding – the safety of Indian Reservation Road (IRR) Program [now known as TTP]
road sand bridges. Until such time as Tribal
Road Maintenance standards are developed
by the Tribe that meet or exceed applicable
federal standards, and until the Secretary,
with the input of the IRR Program Coordinating Committee, develops the IRR Transportation Facilities Maintenance Management
System (TFMMS), the Secretary must accept
as interim standards any Tribal maintenance
standards that meet or exceed applicable Federal standards. Interim standards include:
...
(c) Other applicable Federal, State or local
government maintenance standards as may
be negotiated in an ISDEAA road maintenance self determination contract.
(D) The Tribe elects to adopt, as Tribal Road
Maintenance Standards, the most current
App. 29
Road Maintenance Standards of the State of
North Dakota Department of Transportation,
and South Dakota Department of Transportation, as appropriate, to carry out the activities
authorized under this Contract. (emphasis
added).
Subpart G of 25 C.F.R. § 170.800 provides guidance as to how tribes may utilize TTP funds for road
maintenance. See 25 C.F.R. § 170.800. Tribes may use
the greater of $500,000 or 25% of their annual tribal
share funds for maintenance. See 23 U.S.C. § 202(a)(8)(A)
and 25 C.F.R. § 170.800. 25 C.F.R. § 170.803 states,
“Subject to the availability of funding, Tribal transportation facilities must be maintained either . . . (b)
another Tribal, Federal, State, or local government
maintenance standard negotiated in an ISDEAA
road maintenance self-determination contract or selfgovernance agreement.” 25 C.F.R. § 170.803(b).
The crux of the Plaintiffs argument is that the
United States’ conduct was not a policy decision because the decision was made at the operational level –
the BIA and the Tribe failed to follow bridge inspection
procedures and failed to post warning signs. However,
this argument was rejected by the United States Supreme Court in Gaubert and is expressly noted by the
Eighth Circuit Court of Appeals in Walters v. United
States (See 499 U.S. 315, 326 (1991) and Walters v.
United States, 474 F.3d 1137 (8th Cir. 2007)). In
Gaubert, the United States Supreme Court said:
Likewise in Berkovitz, although holding that
some acts on the operational level were not
App. 30
discretionary and therefore were without exception, we recognized that other acts, if held
to be discretionary on remand, would be protected. 486 U.S., at 545, 108 S.Ct., at 1963. The
Court’s first use of the term “operational” in
connection with the discretionary function exception occurred in Dalehite, where the Court
noted that “[t]he decisions held culpable were
all responsibly made at a planning rather
than operational level and involved considerations more or less important to the practicability of the Government’s fertilizer program.”
346 U.S., at 42, 73 S.Ct., at 971. Gaubert relies
upon this statement as support for his argument that the Court of Appeals applied the
appropriate analysis to the allegations of the
amended complaint, but the distinction in
Dalehite was merely description of the level at
which the challenged conduct occurred. There
was no suggestion that decisions made an operational level could not also be based on policy.
499 U.S. at 326. The Supreme Court further said, “The
Court of Appeals misinterpreted Berkovitz’s reference
to Indian Towing as perpetuating a nonexistent dichotomy between discretionary functions and operational
activities.” Id. In Estate of Walters, the Eighth Circuit
Court of Appeals affirmed that taking into account the
availability of funds for road maintenance is not a ministerial act performed at the operational level. Walters
v. U.S., 474 F.3d at 1139. The Eighth Circuit held,
The government, however, cites another applicable regulation which specifically requires
App. 31
the BIA to take into account the availability
of funds when deciding the extent to which
maintain roads. See 25 C.F.R. § 170.6 (2004)
(“Subject to the availability of funds, the Commissioner shall maintain, or cause to be maintained, those approved roads on the FederalAid Indian Road System.”).” Where the applicable statues, regulations, or policies allow the
government to take budgetary considerations
into account, the discretionary function exception applies. Id.
Id.
The Tribe has elected to follow the NDDOT road
maintenance standards for road maintenance activities on the Standing Rock Reservation located in
North Dakota. The United States contends the
NDDOT Maintenance Operations Manual and the
NDDOT Snow and Ice Control Manual provide the
only standards by which the BIA and the Tribe had to
adhere to with respect to road maintenance. See Doc.
Nos. 12-3, 12-4, and 12-5. The Plaintiffs argue the
North Dakota Bridge Inspections Procedures are also
included in the NDDOT road maintenance standards.
See Doc. No. 20-1.
1) ND-DOT Road Maintenance Standards
Do Not Include the Coding Guide
The RMP contract reveals that the Tribe and BIA
agreed to follow “the most current Road Maintenance
Standards of the State of North Dakota Department of
Transportation.” See Doc. No. 9, p. 19. The ND-DOT
App. 32
Road Maintenance Standards in effect in July 2019
when this accident occurred were (1) Maintenance
Operations Manual 2017; and (2) NDDOT Snow and
Ice Control Manual 2018-2019. See Doc. Nos. 12 at ¶ 7,
12-3, 12-4, and 12-5. The Plaintiffs argue the “North
Dakota Bridge Inspection Procedures Recording and
Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges and Pontis Bridge Inspection Manual” (“Coding Guide”) (Doc. No. 20-1) is
part of the ND-DOT “Road Maintenance Standards”
adopted by the Tribe through the RMP Contract. See
Doc. No. 19, pp. 13, 21. The Court disagrees.
The Coding Guide addresses how data is supposed
to be coded and entered into the Pontis Bridge Management System database by states. Suffice it to say
there is nothing in the TTP or RMP contracts requiring
the Tribe to use Pontis. The Tribe agreed to undertake
road maintenance, not data-entry into a software program for the management of bridge systems. The software is designed to assist state highway agencies in
organizing bridge data in order to make sound decisions about maintaining, improving, and replacing
bridge structures. It is a tool to provide guidance in
evaluating bridge data. It is not a mandate on how to
conduct bridge or culvert inspections or maintenance
of the roads.
Even assuming for the sake of argument the Coding Guide is included among the ND-DOT Road
Maintenance Standards, there is considerable discretion for the Tribe in addressing these standards. The
Coding Guide does not in any manner contain any
App. 33
rules, regulations, statutes, or policies which mandate
what the Tribe must perform without exercising “judgment or choice.” See Doc. No. 9, pp. 15-16. “Under
Berkovitz [by Berkovitz v. United States, 486 U.S. 531,
536 (1988)], an agency policy strips government employees of discretion when it ‘specifically prescribes a
course of action for an employee to follow.’ . . . [T]o remove discretion, the policy must constitute a “specific
mandatory directive.” C.R.S. by D.B.S. v. United States,
11 F.3d 791, 799 (8th Cir. 1993); see also Buckler v.
United States, 919 F.3d 1038, 1048 (8th Cir. 2019)
(“These various provisions simply lack the required
specificity and mandatory language.”). If the relevant
authority is intended to serve as a guideline or advisory document, or implicates the exercise of judgment,
then it does not constitute a specific, mandatory directive. See Aragon v. United States, 146 F.3d 819, 82425 (10th Cir. 1998) (manual was “intended for guidance” and provided “Air Force personnel discretion in
their decisions.”). The use of predominantly permissive
terms such as “guidance” and “recommended,” rather
than any mandatory language, is a “clear signal” the
text is intended to be a guideline rather than mandatory. See Herden v. United States, 726 F.3d 1042, 1047
(8th Cir. 2013); Riley v. United States, 486 F.3d 1030
(8th Cir. 2007).
The bridge “inspection requirement” language
cited by Plaintiffs in the Coding Guide does not create
the kind of mandatory, specific obligation or directive
that deprives the Tribe of all judgment or choice,
stripping it of the discretionary function exception
App. 34
protections. The Coding Guide does not describe any
specific techniques or steps that must be taken to conduct an inspection, or how frequently such inspections
must occur. In other words, the actual Coding Guide
language does not in any manner require or mandate
certain conduct by the Tribe. The Coding Guide does
not contain any specific mandatory directive.
The Court has carefully reviewed the North Dakota Bridge Inspection Procedures Manual and the
manual is simply a Coding Guide to be used for bridge
rating purposes. It is not a road maintenance standard
manual that specifically dictates how, when, where, or
why bridge maintenance should be undertaken. As a
Coding Guide, it provides how data is to be coded and
entered into the Pontis database, the bridge management software system. There is nothing in the North
Dakota Bridge Inspection Procedures Manual that
specifically mandates, dictates, or directs how the BR
or the Tribe is to conduct road or bridge maintenance.
It is also important to note that the NDDOT Road
Maintenance Standards do not contain any mandatory
directives for the BIA and the Tribe to follow. In other
words, there are no mandates, rules, regulations, policies, or procedures imposed in the NDDOT Road
Maintenance Standards. Thus, the BIA and the Tribe
have considerable discretion as to how, when, and
where to perform road maintenance.
The Court expressly finds the language in the
RMP and TTP does not create a mandatory directive
for the BIA or the Tribe. Under the above cited provisions of the RMP and the TTP regulations, the Tribe
App. 35
has considerable discretion to take into consideration
budgetary and policy concerns in deciding what road
maintenance activities to undertake. See 25 C.F.R.
§ 170.803; Walters v. U.S., 474 F.3d 1137, 1139 (8th Cir.
2007) (“Where the applicable statutes, regulations, or
policies allow the government to take budgetary considerations into account, the discretionary function
exception applies.”). The language in the controlling
regulations and contracts does not rise to the level of
a mandatory directive that relieves the Tribe and BIA
of all choice or judgment in determining what road
maintenance activities to undertake. Thus, it is clear
the first step of the Gaubert test is satisfied because
there was an element of judgment or choice in how the
BIA and the Tribe maintained the roads located within
the Standing Rock Reservation. The Court must next
turn to the second step of the Gaubert test to determine
whether the conduct of the BIA and the Tribe is the
type of conduct the discretionary function exception
was designed to shield.
C. WHETHER THE CONDUCT IS OF THE
KIND THAT THE DISCRETIONARY FUNCTION EXCEPTION WAS DESIGNED TO
SHIELD
As previously noted, because the Tribe’s challenged conduct clearly involved an element of judgment or choice, the Court must next determine whether
the judgment is “of the kind that the discretionary
function exception was designed to shield.” See Berkovitz,
486 U.S. at 536. The United States contends the Tribe’s
App. 36
conduct was susceptible to social, economic, and political policy analysis because Congress ceded decision-making authority to the Tribe under the ISDEAA
and is fundamentally a policy grounded decision. The
Plaintiffs argue that the Tribe failed to inspect, maintain, and erect warning signs for culverts along the
road in the Standing Rock Reservation.
If the challenged conduct is determined to be discretionary, the second step requires a determination
of whether the conduct is “of the kind that the discretionary function exception was designed to shield.”
Gaubert, 499 U.S. at 322-23. The second step inquires
into whether the government actor’s judgment or
choice was “based on considerations of social, economic,
and political policy. Layton v. United States, 984 F.2d
1496, 1499 (8th Cir. 1993) (citing Berkovitz, 486 U.S. at
536-37). “The focus of the inquiry is not on the agent’s
subjective intent in exercising the discretion conferred
by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325. As a result, the
Court must determine whether the adjudication of the
Plaintiffs’ claims would require it to second guess a
governmental policy decision.
As discussed in Demery, there are two ends of a
spectrum to determine whether conduct is protected by
the discretionary function exception. “At one end of the
spectrum are agency decisions which exist outside of
sphere of policy analysis.” Demery, 246 F. Supp.2d at
1066. On the other end of the spectrum are agency decisions “where the exercise of judgment or choice is
App. 37
directly related to the furtherance of the agency’s policy goals.” Id. “When established governmental policy .
. . allows a government agent to exercise discretion, it
must be presumed that the agent’s acts are grounded
in policy when exercising that discretion.” Demery, 357
F.3d at 833. The burden rests with the plaintiff to rebut
this presumption. Id. (citing Dykstra, 140 F.3d at 796).
If the plaintiff does not rebut the presumption, the
court will “presume the decision was based on public
policy considerations.” Id. “Where the applicable statutes, regulations, or policies allow the government to
take budgetary considerations into account, the discretionary function exception applies. Walters, 471 F.3d at
1139. The United States Supreme Court has said that
when “established governmental policy, as expressed
or implied by statute, regulation, or agency guidelines,
allows a Government agent to exercise discretion, it
must be presumed that the agent’s acts are grounded
in policy when exercising that discretion.” Gaubert,
499 U.S. at 324-25.
The Court concludes as a matter of law that the
actions taken by the BIA and the Tribe concerning
road maintenance activities on BIA Route 3 (Kenel
Road) are susceptible to social, economic, and political
policy analysis. It is clear the BIA and the Tribe have
considerable discretion to allocate funding for road
maintenance projects as they saw fit pursuant to the
ISDEAA, TTP, and the RMP. The record reveals the
Tribe had considered replacement of the Kenel Road
culvert along BIA Route 3, for at least five years before
the washout occurred. See Doc. No. 12-6, p.2. The fact
App. 38
that virtually nothing was done is troublesome at best,
particularly in light of this tragic accident. However,
“[t]he decision of how and when to replace a major element of a substantial public facility is, like the decisions involving design and construction, at bottom a
question of how best to allocate resources.” Metter v.
U.S. Army Corps of Eng’rs, 9 F. Supp.3d 1090, 1099 (D.
N.E. Mar. 25, 2014), aff ’d sub nom, Metter v. United
States, 785 F.3d 1227 (8th Cir. 2015). “Such a decision
is inherently bound up in considerations of economic
and political policy, and accordingly is precisely the
type of governmental decision that Congress intended
to insulate from judicial second guessing through tort
actions for damages.” Id.
The record reveals the BIA and the Tribe had entered into design and construction contracts to replace
the Kenel Road culvert. See Doc. Nos. 12-7 and 12-8.
But it is also clear the BIA and the Tribe are required
to exercise discretion when maintaining their roads
“subject to the availability of funds.” See Estate of Walters, 2006 WL 8453000 *3 (D.S.D. Mar. 29, 2006) (the
discretion that goes into maintaining roads, which includes allocating money and personnel, as well as
maintenance are the types of conduct and judgment
calls the discretionary function exception protects.).
In Walters, three separate car accidents occurred
between January 14, 2004, and May 6, 2004, on a 14.6
mile stretch of gravel road designated as BIA Route #3
within the exterior boundaries of the Cheyenne River
Sioux Indian Reservation in South Dakota. Several
people were seriously injured in the accidents. Walters
App. 39
v. United States, 474 F.3d 1137, 1139 (8th Cir. 2007).
They joined together to bring claims against the
United States (acting through the BIA) under the
FTCA alleging the washboard condition of the gravel
road contributed to the accidents, and the BIA’s lack of
regular maintenance was the cause of the washboard
condition. Id.
The United States filed a motion to dismiss contending the discretionary function exception barred
the lawsuit because maintenance of the road was a
discretionary function. Id. See 28 U.S.C. § 2680(a)
(precluding claims “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”). Id. The district court
granted summary judgment and dismissed the case
primarily based on the discretionary function exception to the Federal Tort Claims Act.
On appeal the Eighth Circuit Court of Appeals affirmed and held as follows:
Where the applicable statutes, regulations,
or policies allow the government to take
budgetary considerations into account, the
discretionary function exception applies. In
National Union Fire Insurance v. United
States, the Ninth Circuit explained this distinction:
A word also needs to be said about cost. In ARA
Leisure, we said that the agency could not
invoke the discretionary function exception
App. 40
based on budgetary considerations, but in
Kennewick [Irrigation District v. United States,
880 F.2d 1018 (9th Cir. 1989)] we said that it
could. In this case we also say that it could.
These cases can be reconciled; whether the
government can take cost into account depends on the applicable statutes, regulations,
and policies. In ARA Leisure, the regulation
required the Park Service to maintain the
road width and firmness, not to balance that
goal against what it would cost. In the case at
bar, the statute expressly requires the Corps
to consider the “relation of the ultimate cost
of such work” to the other factors in deciding whether to do the work. 33 U.S.C. § 541.
Where a statute or policy requires a particular government action, it has no discretionary function immunity based on its choice to
spend its money doing something else instead.
But where a statute or policy plainly requires
the government to balance expense against
other desiderata, then considering the cost of
greater safety is a discretionary function.
...
Application of the exception is often troubling,
because it may be a shield for carelessness
and poor judgment. . . . Private actors generally must pay for the harm they do by carelessness. The government’s power to tax
enables it, better than any private actor, to
perform its conduct with reasonable care for
the safety of persons and property, and to
spread the cost over all the beneficiaries if its
conduct negligently causes harm. Fairness
App. 41
might seem to suggest that the government
should be liable more broadly than private actors. But at its root, the discretionary function
exception is about power, not fairness. The
sovereign has, by the exercise of its authority,
reserved to itself the right to act without liability for misjudgment and carelessness in the
formulation of policy.
Because the applicable regulations expressly
required the BIA to consider the availability
of funds in deciding whether to perform
maintenance on its roads, we conclude the district court correctly held the discretionary
function exception shields the government
from suit in this case.
Walters v. United States, 474 F.3d 1137, 1139-40 (8th
Cir. 2007) citing the Ninth Circuit Court of Appeals in
National Union Fire Insurance v. United States, 115
F.3d 1415, 1421-22 (9th Cir. 1997).
The Plaintiffs contend the United States was negligent in the maintenance of BIA Route 3 and the
Kenel Road and also failed to post any warning signs.
This Court in Demery, 246 F.Supp.2d 1060 (D.N.D. Feb.
20, 2003), affirmed by the Eighth Circuit Court of Appeals, found that the issue of whether to post warning
signs is clearly a discretionary function protected by
the discretionary function exception. The Eighth Circuit in Demery affirmed and held as follows:
Beyond the commonsense reason that Mr.
Demery’s argument must fail, our case law requires it. The BIA’s first decision (whether to
App. 42
warn or not) is susceptible to a policy analysis
that weighs the benefits of warning (e.g., increased safety) with its costs (e.g., the cost of
erecting warnings). That decision satisfies
Berkovitz because these are issues of social,
political, and economic policy. See C.R.S.,
11F.3d at 801-02; Layton v. United States, 984
F.2d 1496, 1504 (8th Cir. 1993), cert denied,
510 U.S. 877, 114 S.Ct. 213, 126 L.Ed.2d 170
(1993). Mr. Demery concedes this point. The
BIA’s second decision (the manner and
method used to warn) is also susceptible to
policy analysis, however. See Layton, 984 F.2d
at 1504-05; Buffington v. United States, 820
F.Supp. 333, 335-36 (W.D. Mich. 1992). As the
sophistication of warning mechanisms increases, so does the monetary cost and the
aesthetic displeasure associated with the
warnings. Cf. Chantal, 104 F.3d at 212. The
BIA could have weighed these policy factors
when determining what kind of warning system to deploy. Mr. Demery has presented no
evidence that rebuts the presumption that the
BIA employee’s two decisions were grounded
in policy. The decisions are thus protected by
the discretionary-function exception.
See Demery, 357 F.3d at 834 (8th Cir. 2004); Estate of
Walters, 2006 WL 8453000 at *5 (D.S.D. Mar. 29, 2006).
The Plaintiffs cite to Aslakson v. United States and
Mandel v. United States for the contention the Plaintiffs’ claims in the instant case are analogous to those
asserted by the plaintiffs in Aslakson and Mandel. In
Aslakson, the Eighth Circuit Court of Appeals held
App. 43
that a governmental agency could be held responsible
for compliance with its own safety policies without undermining its governmental function. 790 F.2d 688,
691 (8th Cir. 1986). In Aslakson, the Eighth Circuit
held the Western Area Power Administration (“WAPA”)
had violated the prescribed standards of the national
Electric Safety Code as well as WAPA’s own internal
policies. Id. In Mandel, the Eighth Circuit affirmed a
district court decision holding that the discretionary
function exception did not apply to the National Park
Service’s failure to warn of the hazards of swimming
at a swimming hole adjacent to a national park, where
a patron dove into the water and hit his head on a submerged rock. 793 F.2d 964 (1986). However, the Plaintiffs’ reliance on these two cases is misplaced. In both
Aslakson and Mandel the United States had failed to
comply with specific, mandatory standards and policies, which is not the case here. In this case there are
no specific or mandatory statutes, rules, regulations,
policies, or procedures which dictate how, when, or
where the BIA and the Tribe are to perform road
maintenance on reservation roads. It is clear from a
careful review of the ISDEAA, TTP, and RMP that the
BL& and Tribe have discretion to determine when,
where, and how to perform road maintenance and, as
such, that conduct is shielded by the discretionary
function exception.
The Court concludes as a matter of law the BIA
and the Tribe’s conduct in this case is the type of conduct that the discretionary function exception was designed to protect. To conclude otherwise would be to
App. 44
engage in the type of judicial second-guessing the discretionary function exception was designed to avoid.
Therefore, the United States’ motion to dismiss the
complaint is granted.
The undersigned is troubled by this outcome, and
very sympathetic to the personal tragedies that occurred as a result of the washout on the Kenel Road on
July 9, 2019. The application of the discretionary function exception in this case is extremely unfair. This exception to federal tort liability is a concept that needs
to be eroded and is in dire need of a correction.
In a broad sense, virtually all human activity involves the exercise of judgment, choice or discretion. So
why are highway activities and the maintenance of
roads and culverts on reservation highways afforded
such immunity from negligence or carelessness? The
doctrine shields any negligence, carelessness, or poor
judgment on the part of the Standing Rock Sioux Tribe
concerning maintenance of the Kenel Road, and the
need and importance of replacing the underlying culvert. Issues of negligence and causation should be left
for a jury to resolve rather than have the discretionary
function exception immunize such conduct. Unfortunately, the law in the Eighth Circuit Court of Appeals
is clear that the decisions of the Tribe to maintain, repair, or replace the Kenel Road, and/or erect warning
signs on the Kenel Road, are protected by the discretionary function exception under the Federal Tort
Claims Act. Common sense, fairness, and justice are
absent in the application of the exception in this case.
App. 45
Hopefully, Congress will see fit to address this law because a legislative change is needed.
IV. CONCLUSION
The Court has carefully reviewed the entire record, the parties’ briefs, and relevant case law. For the
reasons set forth above, the United States’ motion to
dismiss (Doc. No. 8) is GRANTED. Accordingly, the
complaint against the United States is dismissed for
lack of subject matter jurisdiction.
IT IS SO ORDERED.
Dated this 15th day of March, 2022.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
App. 46
28 U.S.C. § 1346.
United States as defendant
(a) The district courts shall have original jurisdiction, concurrent with the United States Court of
Federal Claims, of:
(1) Any civil action against the United
States for the recovery of any internal-revenue tax
alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have
been collected without authority or any sum alleged to have been excessive or in any manner
wrongfully collected under the internal-revenue
laws;
(2) Any other civil action or claim against
the United States, not exceeding $10,000 in
amount, founded either upon the Constitution, or
any Act of Congress, or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated
or unliquidated damages in cases not sounding in
tort, except that the district courts shall not have
jurisdiction of any civil action or claim against the
United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not
sounding in tort which are subject to sections
7104(b)(1) and 7107(a)(1) of title 41. For the purpose of this paragraph, an express or implied
contract with the Army and Air Force Exchange
Service, Navy Exchanges, Marine Corps Exchanges,
Coast Guard Exchanges, or Exchange Councils of
the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
App. 47
(b)(1) Subject to the provisions of chapter 171 of
this title, the district courts, together with the United
States District Court for the District of the Canal Zone
and the District Court of the Virgin Islands, shall have
exclusive jurisdiction of civil actions on claims against
the United States, for money damages, accruing on and
after January 1, 1945, for injury or loss of property, or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of his office or
employment, under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a
sentence may bring a civil action against the United
States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.
(c) The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other
claim or demand whatever on the part of the United
States against any plaintiff commencing an action under this section.
(d) The district courts shall not have jurisdiction
under this section of any civil action or claim for a pension.
(e) The district courts shall have original jurisdiction of any civil action against the United States
App. 48
provided in section 6226, 6228(a), 7426, or 7428 (in the
case of the United States district court for the District
of Columbia) or section 7429 of the Internal Revenue
Code of 1986.
(f) The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to
quiet title to an estate or interest in real property in
which an interest is claimed by the United States.
(g) Subject to the provisions of chapter 179, the
district courts of the United States shall have exclusive
jurisdiction over any civil action commenced under section 453(2) of title 3, by a covered employee under
chapter 5 of such title.
App. 49
28 U.S.C. § 2680.
Exceptions
The provisions of this chapter and section 1346(b)
of this title shall not apply to—
(a) Any claim based upon an act or omission of
an employee of the Government, exercising due care,
in the execution of a statute or regulation, whether or
not such statute or regulation be valid, or 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.
(b) Any claim arising out of the loss, miscarriage,
or negligent transmission of letters or postal matter.
(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the
detention of any goods, merchandise, or other property
by any officer of customs or excise or any other law enforcement officer, except that the provisions of this
chapter and section 1346(b) of this title apply to any
claim based on injury or loss of goods, merchandise, or
other property, while in the possession of any officer of
customs or excise or any other law enforcement officer,
if—
(1) the property was seized for the purpose
of forfeiture under any provision of Federal law
providing for the forfeiture of property other than
as a sentence imposed upon conviction of a criminal offense;
App. 50
(2)
feited;
the interest of the claimant was not for-
(3) the interest of the claimant was not remitted or mitigated (if the property was subject to
forfeiture); and
(4) the claimant was not convicted of a crime
for which the interest of the claimant in the property was subject to forfeiture under a Federal
criminal forfeiture law..1
(d) Any claim for which a remedy is provided by
chapter 309 or 311 of title 46 relating to claims or suits
in admiralty against the United States.
(e) Any claim arising out of an act or omission of
any employee of the Government in administering the
provisions of sections 1–31 of Title 50, Appendix.2
(f ) Any claim for damages caused by the imposition or establishment of a quarantine by the United
States.
[(g) Repealed. Sept. 26, 1950, ch. 1049, §13(5), 64
Stat. 1043.]
(h) Any claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights: Provided,
That, with regard to acts or omissions of investigative or law enforcement officers of the United States
1
2
So in original.
See References in Text note below.
App. 51
Government, the provisions of this chapter and section
1346(b) of this title shall apply to any claim arising, on
or after the date of the enactment of this proviso, out
of assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States
who is empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal
law.
(i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the
monetary system.
(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard,
during time of war.
(k)
Any claim arising in a foreign country.
(l) Any claim arising from the activities of the
Tennessee Valley Authority.
(m) Any claim arising from the activities of the
Panama Canal Company.
(n) Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or
a bank for cooperatives.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.