he can from the united states department of the interior who in an attempt to cooperate between the environmental community and the logging industry needs to comply with b oh and see it lands act which is a historical act that provides for logging in southwestern oregon northern european has and for some of your aware gave an opportunity for economic development in the southwestern area where again in this case by virtue of the fact that too many jobs were being lost logging jobs and on the other hand environmentalist's were concerned about preserving spotted owls fauna flora and other land bearing animals so there's a very special project that was drawn up by a couple of university professors in conjunction with members of be a lamb and eventually prospectuses were were done and a bidding process was set out the bidding process required that timber companies for example in this case defendant appellee of boise cascade look at these things and determine what kind of sale is this or this is a scale sale partial cut sale which meant that only some trees could be taken and in fact by contract reserved from taking were all hardwood trees including the drowned trees which is the pertinent type of tree in this case that didn't work so well because in this instance in the area in which we were trees other hardwood trees grew in and among soft wood trees such as douglas firs and pine trees that made it very difficult for t take the trees down council given obviously argue the case however you want but for my purposes we've read the briefs both of us all three of us have read the briefs and are familiar with what you just told us ok but maybe you can help me b indicating specifically what duty of care was breached in this case and by whom i'm sorry what duty of care was breached in this case and by whom ok here's the situation i think that the district court erred in its order by making interment determination that the plaintiffs had presented no facts that would i want wait a minute you're going on a different maybe i'm here you are wrong w you're going to different way before we get to the procedural aspect of it i want to know this i feel very sorry for your client by the way i think anybody on the court would but the reality is in order to have establish liability you have to show that a duty care was owed to your client my specific question to you is what duty of care was breached and by whom i'm sorry i didn't hear the word duty sorry ok i guess what i'm looking for so i'm looking for i apologize duty is is set forth by the oregon employers liability law which provides that every owner and employer must not may not may be with how the district court looked at the case because basically what he said was that it's on the timber cutter to figure out what to do it's what this one wasn't wasn't he basing that though on what the record showed that people were making such distinctions they would see hardwood tree in a soft wood tree and if they thought it was dangerous they would pass i thought there was evidence in depositions that that was the case and my mistake and now reading of it says there was no discussion that he recalled about whether you could cut trees for safety the fact of the matter is ed hanscom instructed him on the first day reserve trees are out and it only came after the cutters went into the woods that they saw that there were hard woods in the corridors that cutters went back on and said hey we can't we can't make a harvest out of this we can't get all these trees down the reserve and so b l m came out and said well testimony address whether they had discretion to cut a tree outside the army corps or i'm sorry your honor i missed that do you any of the witnesses in their deposition testimony address whether they had to describe discretion to cut a tree outside of this yard in court or was sure i think that you would find that a lot of the tree cutters and certainly mr han anybody who's on the other end of this lawsuit is going to say well they had discretion to cut if it was of safety issue but in terms of what as a general rule the rule was no you may not i noticed your client seemed to emphasize the size and the location of the tree some in his testimony what can you tell me why he was doing that there's a reason for that at hanscom testified and also produces a writing and it's that e r nineteen zero eight which says preserve the large legacy trees large hardwoods and did the only thing the he knew how to do which was to cut take tree or the harvest tree which was sitting smack dab in the middle of the corridor and which for practical purposes had to be taken down since there was at least a weeks of lot of slang down hill that needed to be ordered up the hill he would you were talking about something a little bit ago and i want to follow up so are all of the theories of liability premised on a violation of a regulation or safety code provision now those are just some of the things and basically what i was trying to do for the court was to lay out something that it done completely ignored which is there forestry regulations an regulations of the same sort and so in that i pointed those out for the court saying look every day somebody with a superintendent's mind that is experience has to be onsite to determine is there a hazard to these workers and if there is that tree or hazard has to be removed i think it can you tell me about the role that discretion has in the l because it appears that the you know had it all come down to discretion and ways mr mccann sees discretion assuming he had any relevant to that claim at all right th the district court i think got flipped upside down on this one and that he put everything on mr mckenzie's discretion because there was a crew of people who was doing whatever they wanted but that's like saying bunch of jaywalkers if you see he then it must be ok to cross on the red light because everybody else is breaking the rule i don't think there was any discretion given to mr mckenzie because if you look at it not only the contracts but the your colleagues across the aisle here yes so why in your view did the district court focus so heavily on discretion without addressing the other theories over a lot of my building that is a mystery to me but it's the way that the defendants couched their motions for summary judgment it was all mr mckenzie's fault and in fact if you look at the jury instructions on the employer liability oh i can say is it looks like what the district court was made a determination it sure seems like maybe there's an affirmative defense here of some sort that might cut into mr mcke twenty and so on i'm thrilled zation had to be obtained pursuant to the b l m contract that is an authorized officer of the bureau of land management had to come out to the scene and say ok i see what you're now now there were certain trees that were designated to be cut those were soft wood trees and then there were others that were marked as reserve trees and then there were some that weren't marked but were reserved by virtue of the nature of their and so for example your honor in this case madrone tree which is a hardwood tree with a large canopy that provides cover to animals and fauna those were out of them as from cutting and so even though people were saying well i had the discretion to do this it's nowhere in the contract and in fact the b l m officers inspection field notes from january two thousand and twelve indicate that even ed hanscom came to him and asked for permission to cut three big oaks because he knew as well as anybody else that the hardwoods were out of bounds the fact that other timber cutters did not follow their prescriptions is not the issue here they should not be leading this quarter around to make the determination that mr mackenzie had a discretion he did not possess counsel you so you want to save some time we got your mitts on the nothing here i'll tell you what we'll give you a minute to good morning counsel and good morning your honour's may please the court james cox appearing on behalf of the united states of america i've conferred with counsel for the other to finish your honor and counsel of being gracious enough to allow me to take the bulk of the time for the defendants probably ten minutes to discuss the district court's findings of facts with respect to the summary judgment decision with respect to all defendants leaving a few minutes left for the othe r counsel to address some legal arguments about indirect employer liability under the your honor this is a tort case in which the plaintiff bears the burden of identifying some basis of fault by the defendants that caused his accident it is not a strict liability case regardless of whether the claims are viewed under the organ e l l the statutory claim or common law negligence the plaintiff has to identify something that the defendants did or did not do that cause the injury and as well identify specific facts that identify that this action was not done mr cox help me understand what would happen  here the district court said that mr mckenzie's discretion is at the heart of the case but didn't really explain that comment at all it so i wanted to ask you and i don't know if it's you or your colleagues over there is discretion at the heart of this case or i guess more importantly is it a defense to liability under the l o l and if so how can that be if mr mackenzie has advanced what appears to be multiple theories of liability in the single e l l claim judgment you what the district court identified the discretion that timber's feller's had is  the heart of this case and the reason for that is that is the one specific thing that plaintiff identified in his complaint that the defendants did not do give him discretion that could have avoided the accident and even now at this point in time there's nothing else that plaintiff is saying that should have been done the plaintiff is saying you didn't give me any choice and judge clark identified based on the record that know that discretion really did exist and that the rest of the one claim of fault that the diff that the plaintiff identified in his complaint mr mckenzie i believe testified that he did not feel he had the discretion to cut down the reserve tree for safety reasons and that was outside of this yarding corridor or why why isn't that enough to defeat summary judgment and i'm just concerned that the district court may have weighed credibility here the dish recorded in your honor and the reason is because mr mckenzie cannot raise a disputed material fact based on what his subjective belief in his head but when it's cornered on discretion of the employer how is that the case when your honor i think it would be good to identify hypotheticals or other situations in which a dispute of fact really would exist and the best example i can think of is if mr mckenzie had backed away from that tree and said i don't think it's safe to cut this tree down that other trees in the way and if i don't think i have discretion i want i want to be sure i don't do anything safe and if the defense had been said no you have to do that that would be clear factual evidence based on the defendant's action that the policy is not what they claim well let me ask you is there anywhere in the record work  testify that they cut unmarked hardwoods outside of one of the designated corridors there is your honor and i think boise's brief really laid out in detail that the testimony regarding all of  the all of the individuals who uniformly said in their deposition that they had that discretion and it wasn't just the representatives it seems like the majority of the testimony these from my review suggest that discretion was only exercise within the that's what mr mckenzie was focused on his testimony the testimony your honor is from all five of the other fellers and their testimony was that there is no environmental prescription there are certain trick trees that we have to are supposed to cut certain trees that were not as part of the sale but safety comes first and if there's a hardware that needs to be cut back in order to to safely cut down trees in we have the discretion to do that or on the other hand if if the seller prefers it not cut the harvest tree and so that safety is achieved that way either one of those two options were options that were exist there's there's no evidence that its did anything that suggests that the policy is not what the defendants are claiming there was no temper fellers that were disciplined there were no timber fillers that were scolded is there any anywhere in the record where the  cutters testified that the exercise their discretion to cut large rather than small hardwoods there's just this seems to be a distinction made by the b l m with regard to the large hard woods reasons than it can in the timber fellers mr holt houser mr freeman mr berg they testify that they have that discretion and i would bring the court back to the point that there is no evidence that  policy was anything but what the defendants are claiming now even the contract documents that that mr peterson has has brought up here those documents also make clear that trees can be cut for safety reasons that even in the contract you have a procedure by which that done may not be laid out specifically in the contract or may not emphasize that mr brown from b l m did what he did which is said if you need to do it you have that discretion but all of the representatives from boise to temper temper purchaser said that b l m gate in that discretion i guess the other question i have and we'd discussed a little bit here earlier why did why i guess i want to understand your the earlier your understanding why the district court did not take it upon himself to grapple with the safety rules and regulations that were argued in the plaintiff's response to the motion for summary judgment and is the or is it your position that they weren't relevant this is not our position judge mcgee our position is that judge clark supposed to do based on these rules that would have avoided the accident well but don't safety rules and regulations assuming they apply which they would apply to your clients correct correct  to the statutory duty of care it does your honor and the quick if the defendants are in direct employers but even there the question is what under those rules were the defendant supposed to do and to his credit plaintiff identified in his complaint the one thing that he claims that defendants did not do that would have avoided this action and that is give him discretion to take certain actions either cutting a hardwood reserve tree or permission discretion not to cut the harvest free that would have avoided the accident all of these citations to safety rules don't include any other actions that plaintiff claims that the defendant should have taken and so that's why judge clark essentially said that's what this case was down to it's about whether mr mckenzie sitting there had the discretion the ability to avoid this accident if he felt it was unsafe for him to do so and he did and based on the undisputed facts and that discretion and i think it's important counsel me just interrupt for this one question you say that he had that discretion what's the best evidence that you have that he was clearly told that he had discretion to cut the reserve tree in this instance here i would say that he's removed himself as a witness by saying he doesn't recall i get that i get the conflict the statement but what what external evidence from the documents from the testimony from anything in the record indicates that he was expressed told that he had discretion to no cut our other to do to cut the reserve tree in this case and your honor i would point to mr haskins testimony where he passed out written instructions to this effect that testified that safety that indicated that recall what discussions were had there about safety cutting and this gets to play us reply brief right where play if he does can he does admit he was at the meeting where this written documentation was passed i just remember correct he was at that meeting i guess wrong i believe there's i think there's some question as to whether everyone's referring to the same meeting but he was at a meeting before the operation started where he was told what the overlyin prescription was here were cutting softwoods conifers hardwoods are not part of the sale however here's kind of the extra layer and this is where plaintiff kind of dissects the questions at deposition with respect to the counsel's question of well what were the discussions there about safety and those instructions were passed out before the plaintiff even started working correct correct so not quite sure how that relates to this plaintiff in this case but you know i'm still struggling with that the plaintive here advance six theories in his complaint and not only discretion and the only one that the district court dealt with and in a rather perfunctory order of sixteen pages the light of all of that was presented here and the thousands of pages in the record  i'm just a little perplexed as to why the other theories were not addressed in general yeah i believe that's because the other theories in some ways well that's not really stated in the sixteen page order to agree oh i agree here on how come but here i think it goes back to the point that judge clark identified what is this case is what is this case about what is the plaintiff claiming the defendants  were at fault for the accident in other words what did defendants do or not do and what are the facts that support the statement and the discretion there is the only even now is the only item that the plaintiff is saying that well how did those discretion relate to the other six theories well i think there are the because if you tell me that's going to be the first time i'm hearing i mean i understand what you're saying that the that the district court that think the district court was probably well intentioned but it's not clear in the in the in the order how that discretion specifically relates to the other theories of liability presented and you're doing i  think you know good job of that but it's still not clear to me based on what you're on i think the first terry was a timber sale should have occurred here the lands just too dangerous too steep the prescription made it too tough the b l m should have authorized the timber sale that's the first claim and under bear medicine that claim just cannot be brought against the government based on the discretionary function exception to to the liability that that there's just a host of policy based indications which mr peterson began his argument pointing out and and liability copy brought on that basis but i would also point out that plaintiff never argued these other theories  in the complaint at summary judgment so the even though the defendants explain why liability could not be based on those theories the plaintiff essentially abandon those and turn to theories that weren't even pled in the  want to highlight is going all the way back to where we started this morning judge smith with your question what's the source of the duty here and you'll see boise's brief devote some considerable attention to the fact that neither the e l nor common law negligence apply to boise which was not the indirect employer of this plaintiff did not have a common law duty because the plaintiff had to stash allies knowledge and expertise to perform this job that boise a milliner and not a logging company did not have i mean it's a follow up on that there's a an organ case of boothby versus d r johnson i'm sure you're well familiar with it yes under that case what boise's best argument that it is not an indirect employer boise's best argument course the judge here said that this was a common enterprise between boys the and well i'm not even sure who apparently between rogers contract cutting which boise didn't know was even on the site but to have a common enterprise you have to have employee employees intermingled duties and responsibilities performing the risk creating activity you know ironically the theory here is that boy these employees weren't even on the site they weren't participating yet somehow they have intermingled duties and responsibilities well they plainly didn't boise hired hanscom who hired rogers contract cutting who hired the plaintiffs boise's several steps removed had nothing to do with this operation thanks questions of my colleagues have these folks on the other side all right contractor he was an employer he's basically working for the company and did the district court agree with you on that so it didn't address it it i think what basically it disagreed with your prior colleague regarding that a legal question or a question of fact that ought to be determined by a trier of fact your honor it's in my experience with yellow cases it's typically is a matter of law and these that's typically where you where you get out of of l l cases is that where it's an indirect employer the reason it's always an indirect employer because the worker's comp they don't go after their own player and so typically that's that's the that's the main door out there you know i just want to just want to emphasize again that  mr hanscom whatever happens with everybody else mr hanscom has no personal liability in this case and needs to be and i'm serious you're not throwing them out of the bus i'm sure you know absolutely no of course not thank you ok we'll have a you know i've just given you ok you got a minute counsel go for it thank you for the opportunity to appear before you today with respect to the conflicting evidence of mr mckenzie and smiting to the court that if you look at every statement he is made that is in the record it has been consistent that he had no discretion to cut hardwood trees except those that had been authorized by b l m and in fact two weeks before his accident b o i my office craig brown told them after mackenzie informed him that he had cut some small hardwoods inside the corridor for the clear cut purpose and mr brown said stay out of the hard woods don't cut them that's of disputed fact in this case and summary judgment was improper with respect to the written instructions so called that mr hanscom apparently counsel of forgive me but over your time issue only a comparative fault issue that reached the court on this case in all instances we argued that it was the safety of the fall or that was a risk and if you look at each element of the pleaded negligence and he'll lay that's what that is about mr mckenzie was handcuffed between that harvest tree and that reserve tree and he shouldn't be held question what you say you should have been told that circumstance i think what he should have been told is what this is a race what he should have been told was that it's ok we have a supervisor standing by whom you can reach by this radio which we're giving you or we have a super stent supervisor standing by to come down and help you because that's exactly what the oregon administrative rules on forestry mandate that there be a supervisor in a knowledgeable person present to work out this particular problem when there was an intractable issues that are tree cut not determine on his own he was supposed to have a supervisor there and either the owner whether it's be a lamb or boise as the owner or hanscom as boise's representative had any about my colleagues watching all guards have told them which they have told them about safety what they should have told them your honor again is that we're going to comply with the oregon forestry rules and if you have a problem with this find a supervisor but in this instance you have to understand something this timbers sale contained a miles and miles of forested area with just  forestry roads going every which way and in fact b l m and boise and mr hanscom didn't have representatives out on the site every day so there was no one there really to advise him of safety if they had been they would have complied with the regulations and mr mckenzie never would have been hurt yes i'm on site every day is required by oregon forestry regulations and as in to subpoenaed by the bureau of land management mr luce testified to that he was one of the well i think it would have led to other questions which is ok who's going to be around to help us in case we have an even more difficult problem but the fact of the matter is that document is not really authenticated because mr hanscom dumped is entire file and nobody seems to really know where that document came from it just popped up in deposition and was identified by mr hanscom as being the one that he thinks  created and but if you will note he created one a month later saying well actually don't cut the big hard words you can only cut the little ones so his statements written or otherwise are certainly ambiguous except to the extent that they have he told mr mckenzie stay out of the hardwoods there reserve from this cut other question from colleagues thank you  not more time gentle and i know it's always hard when there are more than one lawyer so you know that so thank you all for your argument that we appreciate it very much and we will decide the case in due course of the case just argued is