FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE SCHURG; DANIEL 

SCHURG; CHAD MILLER; 

BECCIE MILLER; JACKIE 

LOWE; LARRY A. ERNST; 

MAUREEN A. ERNST; RONNIE 

HARVIE; JOLEEN HARVIE; 

MARK STERMITZ; MICHELLE 

STERMITZ; BRIAN O’GRADY, 

Plaintiffs-Appellants,

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellee.

No. 22-35193 

D.C. Nos.

9:20-cv-00061-DWM 

9:20-cv-00062-DWM 

9:20-cv-00063-DWM 

9:20-cv-00064-DWM 

9:20-cv-00065-DWM 

9:20-cv-00066-DWM 

9:20-cv-00067-DWM 

9:20-cv-00090-DWM 

OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted December 5, 2022

Seattle, Washington

Filed March 28, 2023

Before: M. Margaret McKeown, Eric D. Miller, and Holly 

A. Thomas, Circuit Judges.
2 SCHURG V. UNITED STATES

Opinion by Judge McKeown 

SUMMARY*

Federal Tort Claims Act

The panel affirmed the district court’s summary 

judgment in favor of the United States in an action brought 

by landowners alleging that the U.S. Forest Service is liable 

under the Federal Tort Claims Act (“FTCA”) for failing to 

comply with its duty to consult with them about firesuppression activities on or near their properties. 

The FTCA’s discretionary function exception preserves 

sovereign immunity as to claims regarding a government 

employee’s “act or omission . . . 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.” 28 U.S.C. § 2680(a). 

The panel applied the requisite two-step test to determine 

whether the discretionary function exception applied. First, 

the panel examined whether there was a federal statute, 

regulation, or policy that prescribed the Forest Service’s 

course of action regarding the agency’s communications 

with the landowners during the Lolo Peak fire in the 

Bitterroot Mountains in Montana in July 2017. The 

published incident decision in place for the Lolo Peak fire 

contained an instruction, included in the “objectives” section 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
SCHURG V. UNITED STATES 3

of the incident decision, directing the Forest Service to 

“[c]onsult with private landowners and local fire district 

authorities if suppression activities have a high probability 

of occurring on private lands.” The objective did not dictate 

when or how the Forest Service was to consult with private 

landowners and did not require the Forest Service to consult 

with landowners individually. The panel held that the Forest 

Service’s specific communications with the landowners 

exceeded the incident decision’s instruction and involved an 

element of judgment or choice sufficient to satisfy the first 

step of the discretionary function exception.

Second, the panel examined whether the Forest Service’s 

decisions related to consulting with landowners about firesuppression activities on and near their land were based on 

social, economic, and political policy. The panel held that 

the Forest Service’s decisions about notifying the 

landowners about fire-suppression activities likely to occur 

on and near their properties were susceptible to a policy 

analysis. The panel concluded that determining how to 

consult with private landowners while the Lolo Peak fire 

raged was precisely the type of decision the discretionary 

function exception was designed to shield, and the 

landowners’ claims were thus barred by the discretionary 

function exception. Accordingly, the district court properly 

granted summary judgment for the Forest Service on all of 

the landowners’ claims.
4 SCHURG V. UNITED STATES

COUNSEL

Kris A. McLean (argued), Tyson A. McLean, and Jordan A. 

Pallesi, Kris A. McLean Law Firm PLLC, Missoula, 

Montana, for Plaintiffs-Appellants. 

John M. Newman (argued), Mark S. Smith, and Randy J. 

Tanner, Assistant United States Attorneys; Jesse A. 

Laslovich, United States Attorney; Office of the United 

States Attorney, Missoula, Montana; for DefendantAppellee.

OPINION

McKEOWN, Circuit Judge: 

The Lolo Peak fire tore through western Montana in the 

summer of 2017. From July to September, the fire destroyed 

multiple homes and buildings and required over 750 

households to evacuate. The United States Forest Service, 

together with the Montana Department of Natural Resources 

and Conservation, managed the rapidly changing fire 

conditions and actively communicated with the public about 

the fire. After the fire, various affected landowners sued the 

federal government. They claim that the Forest Service is 

liable under the Federal Tort Claims Act (“FTCA”) for 

failing to comply with its duty to consult with them about 

fire-suppression activities on and near their properties. 

Specifically, they argue that the Forest Service was required 

to consult with landowners through individualized—rather 

than public—communication channels. 
SCHURG V. UNITED STATES 5

This case calls on us to consider the bounds of the 

discretionary function exception to the FTCA. The district 

court granted summary judgment for the Forest Service, 

holding that it lacked subject matter jurisdiction because the 

property owners’ claims were barred by the discretionary 

function exception. We affirm.

I. BACKGROUND

In July 2017, a lightning strike in the Bitterroot 

Mountains near Lolo, Montana ignited the Lolo Peak fire. 

Hot, dry weather in western Montana throughout the 

summer created dangerous fire conditions, posing an 

extreme risk to firefighters and residents. The fire, fueled 

initially by steep, heavily timbered terrain that prevented 

firefighters from engaging safely, burned for nearly three 

months. Appellants are landowners with homes in the 

Macintosh Manor subdivision plus one individual, Brian 

O’Grady, who owns undeveloped land, collectively “the 

landowners.” Their property was damaged during the Lolo 

Peak fire.

Shortly after the fire started, the Lolo National Forest 

Supervisor requested the help of a fire team capable of 

handling Type 1 incidents. Type 1 incidents are highly 

complex, difficult to stabilize, consume significant 

resources, pose a danger to neighboring populations, and 

demand a high level of public communication. The Forest 

Service and Montana Department of Natural Resources and 

Conservation delegated the Type 1 incident management 

team “full authority and responsibility for fire management 

activities.” The primary duty of the team was to manage and 

direct resources for “safe, efficient and effective 

management of the fire,” with additional responsibility to 

communicate internally and with the public about the fire. 
6 SCHURG V. UNITED STATES

The team used the Wildland Fire Decision Support 

System—an online program that allows fire teams to 

monitor weather, model possible fire behavior, access firerelated information technology, view applicable firemanagement plans, and more—to make strategic and tactical 

fire-related decisions. The team prepared and published 

incident decision reports on the Wildland Fire Decision 

Support System platform. The first incident decision was 

published in late July 2017 and updated in early August 2017 

after the fire spread significantly. The decision included

contingencies to help the team act quickly if the fire reached 

certain geographic locations and provided general guidelines 

for public communication. In particular, the updated 

decision stated that the team was required to “[c]onsult with 

private landowners and local fire district authorities if 

suppression activities have a high probability of occurring 

on private lands.” 

As part of its public-information function, the team 

developed a multi-faceted communication strategy for the 

fire designed to reach as many members of the public as 

possible. For example, the team held in-person meetings at 

local schools and churches and visited high-traffic areas such 

as supermarkets, gas stations, and post offices daily to 

disseminate print information and answer questions. On a 

Facebook page developed specifically for the Lolo Peak fire, 

the team posted updates and livestreamed public meetings. 

The team posted daily about the fire on InciWeb, a public, 

online platform for sharing incident-related information. 

Community members could receive fire updates by visiting 

the team’s information trailer, sending questions to a firespecific email account, and following the daily press releases 

the team provided to print, television, and radio outlets. The 

team decided to favor technology-based communication 
SCHURG V. UNITED STATES 7

methods over slower, more individualized methods given 

the number of residents in proximity to the fire, the 

community’s sophistication, and the “widespread 

availability of internet access.” 

By early August, the fire had spread substantially and 

spanned over 5,000 acres. Daily posts on InciWeb, as well 

as other communication methods, informed the public about

the direction of fire growth and about the fire retardant, 

aerial ignition, and fire-control lines the team was using for 

mitigation and containment. Despite the team’s numerous 

efforts, the fire reached O’Grady’s undeveloped, forested 

land in mid-August. Based on the fire’s rampant spread and 

strong wind conditions, the team decided to conduct firing 

operations, which involved burning fuels to stop the fire’s 

growth and “limit impacts to fire severity to vegetation,” on 

O’Grady’s property on August 14. On InciWeb, the team

explained that firefighters were executing firing operations 

and “carefully introducing fire in unburned areas,” or 

“fighting fire with fire[] to slow the advance of the fire 

front.” O’Grady learned that the fire had reached his 

property by checking InciWeb, which he did “most days.”

In the days that followed, low humidity and strong winds 

increased the fire’s intensity as it spread rapidly toward the 

Macintosh Manor subdivision, where the remainder of the 

landowners owned homes. On August 16, the fire burned 

4,000 acres and crossed a geographic location listed in the 

published incident decision, triggering evacuation orders 

and signaling danger to Macintosh Manor. The team 

determined that conducting firing operations to slow the 

spread of the fire, although hazardous to residentsin the area, 

presented the best opportunity for containment. During the 

morning of August 17, the team updated InciWeb to report 

the raging fire conditions, explain that the team dropped 
8 SCHURG V. UNITED STATES

retardant from aircraft to slow the fire’s spread, and notify 

the public of the team’s plan to conduct firing operations by 

the afternoon. The team also held a public meeting on 

August 17, staffed an information trailer in the community, 

and used other technology-based communication methods to 

disseminate information. The burnout operations began that 

day, but the fire nonetheless reached Macintosh Manor that 

evening. Despite the team’s mitigation attempts, the fire 

destroyed two homes and several accessory structures. 

In the aftermath, O’Grady and several Macintosh Manor 

residents brought negligence and intentional tort claims 

against the Department of Agriculture and the Forest 

Service. They argued that, based on the published incident 

decision, the Forest Service was required to consult them 

personally about the fire-suppression activities that occurred 

on their properties but that it failed to do so. They further 

claimed that the Forest Service intended the suppression 

activities to cause fire damage on their properties. The 

district court held that the discretionary function exception

to the FTCA barred the claims and granted summary 

judgment for the Forest Service. 

II. ANALYSIS

Under the FTCA, district courts have jurisdiction over 

claims against the United States for money damages “for 

injury or loss of property, or personal injury or death caused 

by the negligent or wrongful act or omission” of any 

government employee “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.” 28 U.S.C. § 1346(b)(1). The United 

States has waived its sovereign immunity for certain tort 
SCHURG V. UNITED STATES 9

claims under the FTCA, and parties can sue the government 

only where sovereign immunity is waived. Esquivel v. 

United States, 21 F.4th 565, 572–73 (9th Cir. 2021). We 

review de novo the district court’s determination that it lacks 

subject matter jurisdiction under the FTCA. Id. at 572.

The FTCA’s discretionary function exception preserves 

sovereign immunity as to claims regarding a government 

employee’s “act or omission . . . 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 government employee. Id. at 573 (quoting 28 

U.S.C. § 2680(a)). The Supreme Court has crafted a “twostep test to determine whether the discretionary function 

exception” applies. Id. Courts must determine whether (1) 

“the challenged actions involve an ‘element of judgment or 

choice’” and, if so, whether (2) the “judgment is of the kind 

that the discretionary function exception was designed to 

shield.” Id. at 573–74 (first quoting United States v. 

Gaubert, 499 U.S. 315, 322 (1991); and then quoting 

Berkovitz v. United States, 486 U.S. 531, 536 (1988)). The 

federal government is immune from suit if the challenged 

action satisfies both steps. Id. at 574. If so, “federal courts 

lack subject matter jurisdiction” over the dispute, “even if 

the court thinks the government abused its discretion.” Id. 

At the first step, we must “determine whether a federal 

statute, regulation, or policy mandated a specific course of

action, or whether the government actor retained an element 

of judgment or choice with respect to carrying out the 

challenged action.” Green v. United States, 630 F.3d 1245, 

1249 (9th Cir. 2011). We focus on the “nature of the 

conduct, rather than the status of the actor,” and a 

government employee’s action is nondiscretionary where it 

is specifically prescribed by “a federal statute, regulation, or 
10 SCHURG V. UNITED STATES

policy.” Esquivel, 21 F.4th at 573 (quoting Berkovitz, 486 

U.S. at 536). If there is an “element of judgment or choice,”

we proceed to the second step and ask whether the 

government actor’s action or inaction was “based on 

considerations of public policy,” which are “the kind that the 

discretionary function exception was designed to shield.” 

Green, 630 F.3d at 1249 (quoting Terbush v. United States, 

516 F.3d 1125, 1129 (9th Cir. 2008)). The landowners bear 

the “burden of showing there are genuine issues of material 

fact as to whether the exception should apply, but the 

government bears the ultimate burden of establishing that the 

exception applies.” Esquivel, 21 F.4th at 574 (quoting 

Green, 630 F.3d at 1248–49).

This is not the first time we have addressed the 

discretionary function exception in the context of forest 

fires. Most recently, in Esquivel v. United States, we held 

that the Forest Service’s actions fell within the discretionary 

function exception when a wildfire threatened private

property and a fire crew obtained a resident’s verbal consent 

before starting suppression activities, but the crew’s firesuppression activities damaged the property. Id. at 570–72. 

At the first step, the Forest Service’s communication with 

the landowners involved an element of choice because no 

statute, regulation, or policy contained mandatory language 

regarding landowner communication, and the governing 

Forest Service manual provided that “reasonable discretion 

in decision-making may be required” because of the 

“dynamic, chaotic, and unpredictable” nature of wildfire. Id.

at 574–75. At the second step, the landowner 

communication was part of the Forest Service’s choice of 

“how to organize and conduct fire suppression operations, 

which undisputedly requires the exercise of judgment 
SCHURG V. UNITED STATES 11

grounded in social, economic, or political policy.” Id. at 

577. 

We reached a similar conclusion in Miller v. United 

States, holding that the presence of mandatory language in 

Forest Service documentation, such as a directive to “apply 

aggressive suppression action to wildfires that threaten 

assets,” did not “eliminate discretion” because it did not tell 

the Forest Service “how to fight the fire.” 163 F.3d 591, 

594–95 (9th Cir. 1998). Additionally, the Forest Service’s 

decision-making related to managing multiple fires was 

susceptible to a policy analysis because it required the 

agency to “balance competing concerns” such as public 

safety, environmental protection, and resource management. 

Id. at 596.

After Miller but before Esquivel, in Green v. United 

States, we held that the discretionary function exception did 

not apply in one circumstance where the Forest Service

performed fire-suppression activities near landowners’ 

property, “did not take any action to protect” the property, 

and did not inform the landowners about its suppression 

efforts. See 630 F.3d at 1247–48. Although the applicable 

Forest Service manual directed the agency to ensure the 

public was informed about fire-suppression efforts, the 

Forest Service’s communication decision—or lack 

thereof—involved an element of choice because the manual

did not “prescribe a mandatory course of action.” Id. at 

1250. The Forest Service’s actions were not susceptible to a 

policy analysis, however, because there was no evidence that 

the agency had to determine how to allocate resources 

between firefighting and public communications. See 

Green, 630 F.3d at 1250–52. We explained that without

evidence that the Forest Service had to make a policy 

decision about landowner communication “during 
12 SCHURG V. UNITED STATES

firefighting operations,” such as a choice between 

community distribution methods and “direct contact with 

private citizens,” the Forest Service could not meet the 

second step of the discretionary function exception. Id. at 

1252. 

As in Esquivel and Green, the landowners here challenge 

the Forest Service’s communications with them regarding its 

fire-suppression activities. Because the Forest Service’s 

communication involved an element of judgment or choice 

and was susceptible to a policy analysis, the discretionary 

function exception to the FTCA applies and bars their 

claims. 

A. Element of Judgment or Choice 

The first step of the discretionary function exception test

asks “whether there was a federal statute, regulation, or 

policy in place that specifically prescribed a particular 

course of action by the Forest Service” regarding the 

agency’s communication with the landowners during the 

Lolo Peak fire. See Miller, 163 F.3d at 594. “An agency 

must exercise judgment or choice where no statute or agency 

policy dictates the precise manner in which the agency is to 

complete the challenged task.” Green, 630 F.3d at 1250. If 

a statute or policy directs “mandatory and specific action,” 

however, there can be no element of choice. Terbush, 516 

F.3d at 1129. 

The published incident decision in place for the Lolo 

Peak fire directed the Forest Service to “[c]onsult with 

private landowners and local fire district authorities if 

suppression activities have a high probability of occurring 

on private lands.” The instruction to consult with private 

landowners appeared in the “objectives” section of the 

incident decision alongside directives to avoid using aerial 
SCHURG V. UNITED STATES 13

fire retardant in areas with endangered species and to ensure 

“media messages are accurate.” Additionally, a letter from 

the team leadership specified that the team could not deviate 

from the published incident decision without issuing a new 

decision. 

Neither the objective to consult with private landowners 

nor the team letter is a “federal statute, regulation, or policy 

in place that specifically prescribed a particular course of 

action by the Forest Service.” See Miller, 163 F.3d at 594. 

The objective did not dictate when or how the Forest Service 

was to consult with private landowners and did not require 

the Forest Service to consult with landowners individually. 

See Green, 630 F.3d at 1251 (holding that a plan requiring 

the Forest Service to develop a map of private land and 

record landowners’ contact information was a mere 

“objective” involving an element of choice because it did not 

“dictate[] the precise manner in which the agency [was] to 

complete the challenged task”). In the absence of such 

directives, the Forest Service necessarily had to choose the 

best way to publicize information about the fire. Its decision

to do so mainly through technology-based methods like 

InciWeb posts was central to its responsibility to manage the

fire and ensure public safety. That the incident decision does 

not define “suppression activities” or “high probability,” 

allowing the Forest Service discretion to determine when the 

likelihood of fire-suppression activities on private land 

warranted landowner consultation, further supports that the 

“consult with private landowners” instruction involved an 

element of judgment or choice. See Miller, 163 F.3d at 594–

95.

The Forest Service’s actions more than rose to the level 

of consulting with private landowners. The Forest Service’s 

numerous communications with the public included 
14 SCHURG V. UNITED STATES

InciWeb and Facebook posts, in-person and broadcast 

community meetings, daily press releases to media outlets, 

information distribution in high-traffic areas, and more. The 

specific communication with the landowners, including 

InciWeb posts regarding fire-suppression activities on and 

near Macintosh Manor and O’Grady’s undeveloped land,

exceeded the incident decision’s instruction and involved an 

element of judgment or choice sufficient to satisfy the first 

step of the discretionary function exception.

B. Considerations of Public Policy 

The pertinent question at the second step of the 

discretionary function exception test is whether the Forest 

Service’s decisions related to consulting with landowners 

about fire-suppression activities on and near their land were

based on “social, economic, and political policy.” See 

Esquivel, 21 F.4th at 574 (citing Berkovitz, 486 U.S. at 537). 

“The challenged decision need not be actually grounded in 

policy considerations, but must be, by its nature, susceptible 

to a policy analysis.” Green, 630 F.3d at 1251 (quoting 

Miller, 163 F.3d at 593).

The Forest Service’s decisions about notifying the 

landowners about fire-suppression activities likely to occur 

on and near their properties are susceptible to a policy 

analysis. To begin, the choice to post on InciWeb about firesuppression activities on and near Macintosh Manor and 

O’Grady’s undeveloped land instead of talking directly with 

the landowners “involved a balancing of considerations.”

Miller, 163 F.3d at 595. The Forest Service had to balance

the team’s safety during a time of worsening fire conditions 

in mid-August 2017 with the time-intensive nature of 

reaching members of the public on a personalized basis. Its 

decision was informed by “the widespread availability of 
SCHURG V. UNITED STATES 15

internet access and the public’s sophistication” in the areas 

surrounding the fire. As we have previously held, “[t]hese 

considerations reflect the type of economic, social and 

political concerns that the discretionary function exception 

is designed to protect.” Id.

The Forest Service’s communications about its firesuppression activities “were part of the decision to set, and 

the subsequent conduct of, the burnout—which is 

undisputedly a policy-based decision covered by the 

discretionary function exception.” See Esquivel, 21 F.4th at 

576. We explained in Esquivel that “communication 

between fire crews and property owners is . . . covered by 

the discretionary function exception” where the 

communication is “based upon the performance of fire 

suppression operations.” Id. The in-person conversation 

between the fire crew and the resident in Esquivel was 

susceptible to a policy analysis because the conversation 

“concerned how to organize and conduct suppression 

operations.” Id. The same reasoning applies here. For 

example, the Forest Service’s decision to post on InciWeb

and use other technology-based methods to notify 

landowners about the fire-suppression activities on and near 

their properties instead of talking with them directly was

related to its decision about “whether, where, and how to set 

and manage” the fire-suppression activities. See id. The 

team decided to conduct firing operations, used technology 

to communicate with the landowners about the firing

operations, and focused its resources on engaging the fire. 

As in Esquivel, the communication about the firesuppression activities was not “separate and apart” from the 

fire-suppression activities themselves. Id. at 577. 

The landowners’ efforts to invoke Green to argue that 

the Forest Service’s communication was not susceptible to a 
16 SCHURG V. UNITED STATES

policy analysis fall short. There, we found no evidence that 

the Forest Service had to choose how to allocate resources 

between fire management and public communication. 

Green, 630 F.3d at 1252. We explained that an example of 

the kind of resource allocation susceptible to a policy 

analysis—deciding “between community-wide distribution 

(such as newspapers and radio stations) and direct contact 

with private citizens (such as phone calls or door-to-door 

contacts)”—was absent. Id. Here, in contrast, the Forest 

Service made policy and resource choices based on the

sophisticated nature of the community and the need to focus 

resources on fire management. Regrettably, the Forest 

Service in Green made no effort to communicate with 

landowners about its fire-suppression activities. See id. at 

1248. The policy decisions missing in Green are present 

here. 

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. Accordingly, the district 

court properly granted summary judgment for the Forest 

Service on all of the landowners’ claims.

AFFIRMED.