are the government's actions in fighting a forest fire subject to the same level of judicial scrutiny as the government's actions of letting a fire burn this court has never held that these two dramatically different actions are subject to the  don't think there's a generic reuther way well the point here is that the district court found that the miller decision governed the situation here and that's a firefighting case governed in what sense it govern as to whether there was just a question right because where we were dealing with a very specific set of regulations here that deal with this particular decision correct but the court basically found that any time the forest service is obliged to force to fight a fire then essentially all actions of follow that are discretionary even if there is some mandatory language to the contrary but here you're correct your honor that there are different factual circumstances that come to bear and we've identified two particular areas where the government failed to follow its mandatory duties the first is that they failed to use a qualified fire use management team and in this the mandatory procedures that govern fire management allow the forest service to bring in a fire use management team once the fire has extended to the highest difficulty levels and that happened here the force the agency administrator in consultation with his fire manager on the forest fire use management team the use means allow the fire to burn it's doesn't have to do a suppression and as far as i'm aware there is no specific requirements with respect to individuals who suppress a fire not an issue in this case but the fire use management team has specified positions one of which is the operations sections chief and everyone on the fire use management team has to be type two qualified and that means that they have extensive training experience to reach that level and to be on the team and those qualifications are at yar one seventy one on the record here the operations section chief that reported to manage this fire was not so qualified in fact only trainees were in that position who by definition are not type two qualified there's really no dispute as to that fact here the argument i understand the government to be making is that even though an unqualified far used and human team came on to the fire that doesn't necessarily mean that the fire should be suppressed that too was incorrect in each day in the setting whether the fire can can continue to be managed the agency administrator of the individual in charge of the fire has to determine and ask him self five questions one of those questions is whether there are whether there's a lack of available local personnel and individuals to fill special skill positions for the fire that's if you are one twenty nine if if you find that there are a lack of adequate resources and skill mixes then management should take a suppression response dear that's exactly what happened but in answering those questions the agency administrator determined or checked yes the fire manage somewhat unconnected to the actual decision joan fight the fire and i fight fire well in deciding whether or not to fight the fire the agency administrator has to go through five separate questions one of those questions deals specifically with whether there are adequate skilled personnel available to fight that fire and i think and that i and that's a good that's a separate issue whether he made a mistake about that but whether it signed the piece of paper or not a matter is that if he doesn't sign the piece of paper that means he's supposed to suppress the fire because he didn't sign a piece of paper right i don't understand it could there are two separate issues there's one of our arguments and we haven't gotten to this one yet is that the agency administrator failed to assess whether conditions allowed fire management to continue each day he claims in a declaration submitted he said he did but there are also there are also documents in the record that show other individuals signed the very same paper that he was supposed to sign and only he is in charge of doing that said the it couldn't be more man to tarry under the safety procedures there is no way that management can continue absent the approval of the agency administrator each day and this is a this is the management of a highly hazardous force of nature and the safety procedures in place great emphasis great emphasis on the agency administrator each day determining that management can continue and here we have a genuine issue of material fact as to whether the only evidence in the record that this occurred was a declaration submitted by the person who was supposed to sign it three years later that she remembers doing it every day  and again we have contemporary documentary well that's your honor we have documentary evidence in the record that other individuals not qualified to sign it signed it we also have a signature by this individual on one of the days on a different sheet of paper and she also say aside from my scientist that i made the decision are not the important question is whether she made the decision every day not whether she signed it every day well your  the safety procedures are very clear on this point yes after the after the fact the agency administrator claimed to have signed the paper  there miller may be pretty close if i don't know i mean this is self evident to me that the technical decision whether to deal with the fire of this fire that way is a social economic or political subject just social economic or political policy yes i'm on the gross level i e or maybe i'm talking about the implementation policy distinction because it's certainly the question of whether it's you know out policy lever we're going to let some fires burn is a policy decision whether we're going to stated the high level discretionary issue here is whether or not wild land fire use is permissible in the first instance the test though is an assessment of the particular actions that the government took in implementing those broad based policy decisions and again here we've identified two instances where the government  not have any policy based determination for taking for allowing the fire to continue to burn the first being in one we haven't talked about yet is from day one in attempting to determine whether or not to allow this fire to burn they were supposed to do what's known as a size up which basically entails going out into the forest again eventually i mean that even eventually with her before there was a problem they  what your honor in initially assessing the fire they simply didn't have the information and this is somewhat going back to prague one but we're on the it's really the implementation and the implementation here was done incorrectly because they have to size up the fire as specified in the in the safety procedures that didn't happen  manage wildfire at the implementation level you're talking about the specific actions of the government took in attempting to implement that high level  here and in looking at that very specific area where they did not comply there's no and they haven't identified a specific policy basis that was undertaken at the time for example in calling in the fire use management team they have never alleged that that was based on a policy determination they just the government says at this high level we have the ability to manage for fire and therefore anything that we do underneath that i think they refer to it as micro decisions is subsumed is discretionary within the larger  policy decision the review the decision to undertake wildland fire use so that one there's simply there's nothing in the record that suggests that  allowing for bringing in an unqualified fire use management team and then allowing that team to continue on the fire is something that is so object to the policy based analysis act and what i'd like to do is just emphasize to the court that this wild land fire use management is is far beyond merely mandatory safety procedures as the parents have attempted to characterize management strategy not only the forest service manuals your honour's but the actual evidence from the fire experts in the fire managers on this particular fire establish that this management was was based on a variety of considerations in the first place first of all you had twenty five lighting fires ignite on the same day in the middle of the fire season in august i believe four of them were wilderness fires and  pardon me well i don't hear that were fires in wilderness that the forest service decided to manage for ecosystem benefits and keep in mind to your honor's at the national forests is a vast area these fires occurred over  hundred forty two thousand acre national forest that said he are one forty four keep in mind also that the bridge creek fire the fire at issue here remained at less than one acre in size for more than one week and even mid afternoon on aug sixteenth as we know with the fire blew up at eleven o'clock that night the fire was still moving predictably in the forest service is monitoring judgment that's at e r eighty five w the record shows us is that the forest service managers are honors actually considered the ecological and environmental benefits to this management strategy first of all the national policy the forest service says that  for wilderness fires that as much as you can ensuring the natural role of fire in the ecosystem is the number one priority that's in the forest service manual your honor here the record shows on this fire that the forest service was concerned about suppression as a strategy because that could involve flame retardant and the forest service to specifically concerned about avoiding ground disturbing activities and applying retardant to stream courses because that could affect downhill downstream the city of mitchell's water supply and that's that this that consideration is given and asked question i mean this is sort of off point but it's just been bothering me but what if i  understand that this was you know judgments were made but the net result was that a couple thousand acres of private timber burned john right yes or no i mean so  federal the fact remains that the net result of all this was that you know when one looks at it as a wise decision or not a wise decision and let's assume it was even purposeful they said well if we do this two thousand acres of private hamper will burn out but that's for the greater good and if there's no remedy on the private people who who are essentially financing the public good at that point well if they have insurance coverage i would think that whenever there's an entire government can just do  well it certainly depends on the situation of taking part of me i want to be a take it well that you know i really couldn't speak to that i mean i suppose it could be your honor depending on the circumstances as far as the old what ultimately happened here right and given the fact that of miller and the fact that you have had here a multiple fire situation and you have a strategy while that far use that the forest service recognizes it is equal to suppression in terms of it being complicated management strategy and an emergency management scenario that we look to miller and miller doesn't control as precedent per se but as i think the district judges below the magistrate the district judge recognize that there really isn't a meaningful difference between the type of fire management issue and miller and the similar emergency multi fire management by the forest service and i mentioned that the forest service equates the two strategies staffing is that right yes yes and that's right by fourteen hundred hours on august sixteenth which was about approximately eight hours before the  fire blew the perimeter the fully trained operations section chief had or had arrived at the incident command post that's and that's in the record before this court so the presumably this requirement exists for a reason and the fact that it wasn't followed you know we don't know when they're influencing thing or not but it does i mean obviously i suppose they want to eventually have to be able to to make a few points about that your honor is that the first is that i think it's notable that in the complaint which is in the supplemental excerpts of record the complaint this whole case that the plaintiffs made some very specific allegations about where the forest service was negligent and what the problem was and that the forest service had to start suppression and basically from the very beginning of this fire but nowhere in the complaint is there any specification identification about the staffing of the fire use management team or allegation that when you have one line member of a sixteen member team with a commander that's reporting up to the agency administrator mr walter mr queen that you know having one trainee out of sixteen as a line member that that is going to rewrite the entire strategy i think it's also really important your honor to keep in mind that the wildland fire use interagency procedures established that the forest service had discretion about whether to even order the fire use management team e r one thirty seven establishes that the forest service quote can order a formal management team you know as it did here so the forest service would have been well within its discretion to simply go ahead and man is this fire without even ordering a team in at all so it would certainly seems unfair to punish the forest service and to say something is non discretionary all when in fact ordering the team or not is discretionary in the first place the whole strategy has to be dropped and that that's another major problem in this whole argument and refer your honor to consider kind of with decision from this court which which points out that a requirement must be specific and mandatory so here is simply no management requirement or wildland fire you strategy requirement that if a single line member of an outside team comes and as a trainee that the strategy has to be shifted to suppression so it would be helpful to i understand that this is a point time which miller may in fact be proposing but it would be helpful to me for you to explain on the second prong why these sort of natural and management issues are social political or economic policy i understand their policy but why the social political era konami policy well seen that miller relied on those sort of national level at the supreme court presumably meant meant to separate out certain kinds of policy decisions from others and it would seem to me that have you fight a fire you know how you suppress a fire is the captain call the scientific thing but i don't know why it's a policy question but it's very unpredictable judge and there's there's it's unpredictable fire is you know fighting fire checkable but it's not unpredictable and aside in a social political or economic fashion well it certainly it is in a way your honor because there's you know there's certainly limited resources there's a vast areas there's expertise here well similarly if the question is you know at projection as to whether or not this fire is going to jump the boundary that seems like a professional matter right right well that there's more than just that i think you're on a what would what i think the  evidence the decorations from the various members of the fire team here mr walter mr queen mr last mr reedy those are all higher level fire experts and managers who met and discuss this fire every day burn and less it's going to endanger something is that not basically what they've been told well it's i think it's a little more than that judge i think it's let it let the fire burn naturally because that decision of you know not is not a we know in general that fires burn is supposed to suppress them but is there a danger here if we let it burn certainly the forest service recognize there was a danger but what it did in some of those charts you day judge the decision to proceed with the wildland for you i understand that but what were they thinking about were they thinking about the overall fact that it's a good thing to let fires burn for our were they thinking is this fire  going to cause a problem if we let it burn and on the ground scientific professional decision i think it was it was a combination of all that judges certainly the forest service was very concerned about the  conditions of this wilderness that it had been suppressed for so many decades that it was overloaded and was concerned about of the forest service yes but the people on the ground what was their job well their their job and i think the decorations show your honor is that they believe that given the slope aspect given the elevation given the prevailing winds given the specific fire scar from a previous play all of those are scientific questions they are not policy questions about the social political or economic domination that's what's bothering me well there's certainly scientific opinions based on ground knowledge but those aren't those don't drive the analysis those factors and i think those characteristics of this fire your honor established that the risk of this fire burning more than a mile in the opposite direction of where it was expected to be to burn status what they believe was a low risk of economic damage that might not the point i'm trying to make is those were the kinds of considerations that were being made at that time in that place by those people not the larger policy decision whether until general let fires burn or are even at that point where the live this fire burning and originally the question is if we keep letting it burn is there going to be a risk and why is that a policy decision of the kind that is within the discretionary function that's  because it's not i don't think it's a preordained decision your honor i think the forest service looked at the values at risk looked at the extent of the risk to those values private property culture resources and force  so i think i think that's that's a that's certainly part of it there are those five questions in this wild land fire use management scheme and you know in each day the fire manager went through each of those elements right and made a determination this it meet this value and i believe the fifth factor your honor is basically sort of a catch all the fifth factor in the decision criteria is whether there are other factors a catch all of it in the first four factors that should be considered as a matter of discretion you know by the by the fire manager mr walter and mr queen here so it's it's the strategy really sort of bridge breeze discretion at every pore and certainly i think fire management involves safety as well i think the magistrate's opinion here pointed out that at least on the sixteenth it would not have been safe perhaps to even attempt to suppress that fire once it started blowing up although it was still within the wild land f parameter so you know it wasn't simply expert decision about where it is in the low value of risk on the economic values on the on the on the private landowners there's also safety considerations and national policy considerations if you look at s c r one fifty nine your honor that's the of the decision criteria checklist that was our example signed in this particular iteration by mr walter on the eighth which talks about makes a decision and this is mr walter after discussing with his his team is there a threat to life property or resources that cannot be mitigated to our potential effects on cultural or natural resources outside the range of acceptable effects three or relative risk indicators and our risk assessment results unacceptable to the appropriate agency administrator a judgment call on acceptable to the administrator for is there other proximate fire activity that limits or preclude successful management of this fire and that i'm you know that's an analysis of whether fire activity establishes to the agency administrator satisfaction that the staffing is adequate or not to continue with that strategy so there's this almost like a human resources element to the fourth decision criteria here is do we have the staffing in light of where the fire is and what the activity is to keep managing this fire effectively for a while and far use and then the fifth criterion is are there other agency administrator issues that preclude wild land fire use and that's that catch all check because on that i was mentioning a few minutes ago just other factors that are on the radar of the of the of mr walter who with his team oversaw this entire fire strategy that he believed had bearing about whether it was wise use of discretion or not to continue with that overall strategy so if there's a residual catch all that may well be but that doesn't mean that mr walters shouldn't have stopped the fire given the lack of a qualified fired use management team  the court also noted that you know the discretionary function exception is essentially swallowing the federal tort claims that the point of the act is to hold the government liable to the same extent as a private party in the same circumstances and here private land managers undertake fire use management all the time to take care of brush and undergrowth if that escapes they're liable under oregon law and in fact the federal government is extremely aggressive in going after private parties when fire escapes from private land onto national forest so there's a real double standard here we talked a bit about about miller  the specifically relevant case here is bear medicine and that's a case that involved the government's oversight of a dangerous logging operation on the forest and the court found that the failure of the government to provide proper oversight of safety procedures at visit inherently dangerous site was not a policy decision directly analogous to what happened here although they may have discretion at the broad level in implementing the fire just as implementing the law going to say the logging situation the government was obligated to make sure that the safety procedures were followed they didn't do it in either case miller's much different in that the court found where there's where the agency is forced to manage multiple fires under with limited resources that discretion applies that's not what we have here we have very specific mandatory safety procedures that we'll ledge if you focus on the very actions we allege were not followed and resulted in harm to the appellants in fact if the plants not followed suppression is mandatory the only way they can operate and manage fires  pursuant to a plan and that's demonstrated in this case by the fact that the national forest for thirteen years prior to their attempt to manage this fire had no authority to manage a fire because they didn't have a plan in place every fire on the force was suppressed for thirteen years only once the plan was put in place two weeks before they tried to manage this fire did they have the authority to go forward so absent compliance with the plan suppression is the only other option there's two options suppress it or manage it and here they attempted to manage it but you can only do that pursuant to the plan otherwise you have no authority which is what happened for thirteen years i think i think your honor has hit something right on point with respect to the use of scientific or professional judgment these are not policy considerations  of the type that a national lever level should we have fire management or not policy decision should we use of should we use a qualified fire use management team or not or suppress not a policy decision well i understand his point it was optional to call in the team but once the fire activity reached the highest level they could call in the team and the responsible for supervisor and his fire chief on the on the forest both determined that it was necessary to have a fire use management team so they called in the team but once they do that the specifications for the team are very very specific and again the reason for that is you've got a fire that is at the highest difficulty level they call in a team because they can't handle it anymore but then to put it in the hands of a team lacks qualified personnel and in fact has trainees in the key position in the operations section chief is not just any position this individual's responsible for designing and implementing fire management procedures and again that's exactly the problem that we had here there was there's evidence in the record that there were concerns that the fire was going to blow up by the fourteenth yet they allowed this team to manage it during those intervening critical two days mister martin suggested that a qualified individual did eventually show up on the scene last question what might ultimately does your complaint what wasn't at this well i understand aside the question before us but it seems i mean in the end it doesn't seem you're going to be able to prove negligence case based on the fact that you had a trainee person i mean presumably you have to identify some actual on the ground negligence here well your honor is correct and that is not the issue before the court and i believe that any of the mets been allegations your complain well and in fighting or in trying to fight the fire with an unqualified management team they lost control of it they shouldn't have done that that that was a negligent decision you know when i was in negligence isn't the issue at this point to be a matter of state law i believe the proximate causation just is not is not the discretionary function exception is a jurisdictional question it's not the ultimate decision of whether or not the actions alleged caused harm it's whether or not the actions alleged provide jurisdiction or not ok thank you very much they can run the case on board were struck by versus united states is that we thank you both for your arguments which were helpful and we are in recess