This Week At The Ninth: The FTCA's Discretionary Function Exception

• Jurisdiction: United States,Federal
• Author: Joel F. Wacks
• Law Firm: Morrison & Foerster LLP
• Published date: 14 April 2023

This week, the Court addresses the bounds of the discretionary function exception to the Federal Tort Claims Act (FTCA).

SCHURG v. UNITED STATES

The Court holds that the discretionary function exception bars claims based on the Forest Service's decisions about how to contact landowners affected by a forest fire.

The panel: Judges McKeown, Miller, and Thomas, with Judge McKeown writing the opinion.

Key highlight: "The Forest Service's communication with the landowners about fire-suppression activity that had a high probability of occurring on or near their land satisfies both steps of the discretionary function exception. Determining how to consult with private landowners while the Lolo Peak fire raged is precisely the type of decision the discretionary function exception was designed to shield, and the landowners' claims are thus barred."

Background: The Lolo Peak fire burned in Western Montana for nearly three months during the summer of 2017. The U.S. Forest Service and the Montana Department of Natural Resources delegated an incident management team "responsibility for fire management activities," including communicating with the public about the fire. The team's first incident decision required it to "[c]onsult with...