IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

FRERES TIMBER, INC., and Case No. 6:24-cv-00018-MC

FRERES LUMBER CO., INC.,
OPINION AND ORDER
Plaintiffs,

v.

THE UNITED STATES,

Defendant.

MCSHANE, Judge:

Plaintiffs Freres Timber and Freres Lumber, sister lumber companies, filed this action

against the United States Forest Service, seeking over $30 million in damages under the Federal

Tort Claims Act (“FTCA”) for lumber and profits lost in the Beachie Creek fire.

The Forest Service now moves to dismiss Plaintiffs’ claims, arguing that the challenged

decisions fell within the discretionary function exception to the FTCA.1 Def.’s Mot., ECF No. 8.

Because the challenged decisions fall within the discretionary function exception, this

Court lacks jurisdiction, and Plaintiffs’ FTCA claims must be dismissed. The Forest Service’s

Motion is GRANTED.

1
The Forest Service also moves to dismiss Plaintiffs’ claims related to two timber-sale contracts, arguing that the
Tucker Act and the Contract Disputes Act preclude this Court from exercising jurisdiction over those claims. See
Def.’s Mot. 33–34, ECF No. 8. Because the Court finds independent and sufficient grounds to dismiss Plaintiffs’
case, it does not reach the contract arguments and therefore declines to address them.

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 LEGAL STANDARD

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges

a federal court’s subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Ordinarily, where a

jurisdictional issue is separable from the merits of a case, the court may determine jurisdiction by

the standards of a Rule 12(b)(1) motion.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.

1987). In that circumstance, allegations of jurisdictional fact are not afforded presumptive

truthfulness and the court may review evidence beyond the complaint without converting the

motion into one for summary judgment. E.g., Young v. U.S., 769 F.3d 1047, 1052 (9th Cir. 2014).

However, where a “jurisdictional motion involv[es] factual issues which also go to the

merits, the trial court should employ the standard applicable to a motion for summary judgment,

as a resolution of the jurisdictional facts is akin to a decision on the merits.” Augustine v. U.S.,

704 F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594

F.2d 730, 733–43 (9th Cir. 1979)). “[T]he moving party should prevail only if the material

jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of

law.” Id.

“Although Plaintiffs bear the initial burden to establish subject matter jurisdiction under

the FTCA, it is the government’s burden to establish that the discretionary function exception

applies.” Young v. U.S., 769 F.3d 1047, 1052 (9th Cir. 2014) (original citation omitted).

BACKGROUND

I. The Beachie Creek Fire

One of the most devasting fires in Oregon’s history, the Beachie Creek fire claimed five

lives and consumed more than 193,000 acres of public and private land. See generally Haglund

Decl. Ex. 1, ECF No. 42. The timeline of its destruction is as follows.

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 On August 16, 2020, the Forest Service detected the onset of the Beachie Creek fire.

Haglund Decl. Ex. 7, at 1. The footprint was approximately 10 acres in the Opal Creek

Wilderness, around six miles north of Detroit, Oregon. Gladney Decl. ¶ 4, ECF No. 9. The

affected area was comprised of steep, rugged terrain and presented multiple hazards, such as off-

road operations, potential rolling material, and risk of fatigue from the extended hike required to

access the fire. Id.; see also Gladney Decl. Ex. A, at 4. The Forest Service’s initial priority was

determining if a direct, on-the-ground attack was feasible. Gladney Decl. ¶ 5. Incident

Commander Jonah Gladney testified that this style of “ground suppression” is necessary “to dig

out fire hotspots that may be sheltered from aerial attack,” particularly “on the west side of the

Cascades, where water can roll off steep slopes, fires can smolder deep inside layers of duff, and

where water dumps without ground supervision or recon can push embers and other burning

fuels away from the existing fire.” Id. at ¶ 11; see also Warnack Decl. ¶ 8, ECF No. 11. Despite

this, the remote location of the fire ultimately required the Forest Service to mount “an initial

response comprised solely of aerial resources.” Gladney Decl. Ex. A, at 5. Three helicopters

delivered over 35,000 gallons of water on the fire, one aircraft surveyed the size of the fire, and

another was used to dispatch a crew of smokejumpers, although conditions precluded them from

finding a safe jump point.2 Id.; Warnack Decl. Ex. E, at 1. More aircrafts and air attacks were

ordered, but due to availability and weather, those efforts were cut short. Warnack Decl. Ex. E, at

1.

2
Smokejumpers are specialist firefighters who parachute from aircraft to remote country to fight fires. Gladney
Decl. ¶ 6.

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 On August 17, the Forest Service ordered rappelers to access the fire by helicopter, but

again, a safe entry point was inaccessible. 3 Gladney Decl. Ex. B, at 1. The following day, the

ZigZag Interagency Hot Shot Crew managed to access the fire by foot, and they concluded that

due to steep slopes, heavy fuel loading, and chance of roll out, a direct ground suppression would

not be feasible.4 Gladney Decl. ¶ 5. Helicopters continued throughout the two-day period,

delivering over 243,000 gallons of water on the fire. Warnack Decl. Ex. E, at 1.

On August 19, the Forest Service published an Incident Decision through its Wildland

Fire Decisions Support System (“WFDSS”). Haglund Decl. Ex. 21. It concluded that there were

no benefits to the fire and directed “full suppression” as the Service’s course of action. Id. at 13,

20. Helicopters continued delivering water on the fire through the next day, despite both

helicopters being temporarily down for unscheduled maintenance and one aircraft being

reassigned to another fire. Warnack Decl. Ex. E, at 1–2.

By August 20, the fire had maintained its 10-acre footprint. Haglund Decl. Ex. 8, at 1.

Incident Commander Gladney reported that “[f]ire growth ha[d] slowed due to effective use of

aircraft and moderating weather conditions.” Id. The second Incident Decision continued to

direct “full suppression” and use of aviation resources, but it noted the strategy’s vulnerability to

resource availability and critical weather events, “east winds for example.” Haglund Decl. Ex.

22, at 23, 27. The second Decision also identified that “[f]ire disturbance to the Opal Creek

Wilderness could benefit forest health and wilderness values if the fire behavior remains at a low

or moderate intensity. However, given complexities associated with expected duration and the

3
Rappelers are specialist firefighters who rappel from helicopters to fight wildland fire on the ground. Gladney
Decl. ¶ 7.
4
The Hot Shot Crew is a highly trained wildland fire hand crew that specializes in fire suppression across
challenging settings. Gladney Decl. ¶ 5.

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potential for dynamic fire growth during critical fire weather events, and potential impacts to

adjacent values at risk, benefits are not commensurate with risk.” Id. at 13.

From August 21 to August 30, the Forest Service suspended aerial water drops due to

limited visibility, reallocation of resources, and minimal fire activity.5 Warnack Decl., Ex. E at 2–

3. They resumed on August 31, delivering over 91,000 gallons of water by the end of September

3. Id. at 3. That day, the Forest Service published its third Incident Decision. Haglund Decl. Ex.

23. The fire had grown to 150 acres; the response remained full suppression. Id. at 3, 28.

By September 6, the fire had grown to 469 acres. Haglund Decl. Ex. 18, at 1. Aerial drops

and indirect-suppression efforts continued, delivering over 119,000 gallons in two days. Warnack

Decl., Ex. E, at 4. The Service ordered two specialized aircrafts that could quickly refill their

water supply without returning to base, but smoke and poor visibility prevented their

deployment. Gales Decl. ¶ 7, ECF No. 13.

By 3:00 p.m. on September 7, all aerial resources were grounded for safety due to an

increase in east winds. Id. at ¶¶ 7–8. Prior Incident Decisions had assessed weather forecasts and

predicted several days of dry east winds, but the modeling failed to anticipate the severity and

swiftness of impact. See Haglund Decl. Ex. 23, at 41; Coville Decl. Ex. E, ECF No. 10. Strong

gusts caused numerous powerlines to crash along the Highway 22 corridor, resulting in a string

of small fires. Gales Decl. Ex. A, at 2. At the Incident Command Post, firefighters and

neighboring civilians were forced to evacuate before most of the camp burned down. Gales Decl.

¶ 8. The Beachie Creek fire subsequently swallowed the smaller fires and later joined the

Lionhead fire, before aggressively spreading down the Santiam Canyon. Gales Decl. Ex. A, at 2.

By the next day, the fire had swelled to 132,450 acres. Haglund Decl. Ex. 20, at 1.

5
With the exception of August 24, when the Forest Service delivered 5,400 gallons on the fire. Haglund Decl. Ex.
24, at 2.

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 II. Plaintiffs

Plaintiffs are timber companies that own approximately 17,000 acres of timber in and

around Little North Santiam Canyon. Compl. ¶ 69, ECF No. 1. Approximately 7,000 of those

acres were heavily damaged or destroyed by the Beachie Creek fire, estimated by Plaintiffs to

total nearly $30 million in lost value. Id. Plaintiffs also purchase timber from lands managed by

the Forest Service that were damaged. From the Mansfield and Collawash Timber Sales

Contracts, Plaintiffs estimate they lost $3 million in profits and approximately $300,000 in

preparation costs. Id. at ¶ 70.

Plaintiffs filed this action on January 3, 2024, asserting two negligence claims against the

Forest Service under the FTCA. Plaintiffs allege the Forest Service was negligent in responding

to the Beachie Creek fire because it “fail[ed] to utilize available helicopter resources to

aggressively attack the Beachie Creek Fire during the 14 days when the fire was extremely small

. . . despite knowing that the risks of a catastrophic wildfire were increasing and that helicopter

resources, if properly deployed, had an extremely high likelihood of success.” Id. at ¶¶ 73, 78.

ISSUE

The Forest Service now moves to dismiss this action for lack of subject-matter

jurisdiction, arguing that the challenged decisions are immune under the FTCA’s discretionary

function exception.

On both claims, the Forest Service’s Motion is correct.

DISCUSSION

The FTCA waives the United States’ sovereign immunity for tort claims arising out of the

negligent conduct of government agents acting within the scope of their employment. 28 U.S.C.

§ 1346(b)(1). Operationally, Act grants federal courts subject-matter jurisdiction over specific

6 – Opinion and Order

tort claims, allowing the government to be held liable for negligence “in the same manner and to

the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

This waiver of sovereign immunity excludes, however, “any claim . . . based upon the

exercise or performance or the failure to exercise or perform a discretionary function.” 28 U.S.C.

§ 2680(a). The discretionary function exception “marks the boundary between Congress’s

willingness to impose tort liability upon the United States and its desire to protect certain

governmental activities from exposure to suit by private individuals.’” U.S. v. S.A. Empresa de

Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).

Whether the discretionary function exception precludes a court from exercising

jurisdiction is determined by a two-pronged test. See GATX/Airlog Co. v. U.S., 286 F.3d 1168,

1173 (9th Cir. 2002).

First, the court inquires whether the challenged actions were discretionary, meaning they

“involv[ed] an element of judgment or choice.” E.g., U.S. v. Gaubert, 499 U.S. 315, 322 (1991)

(cleaned up). If the actions were controlled by mandatory policy, there was no discretion, and the

exception does not apply. Id.

If an element of judgment is involved, then the court assesses “whether that judgement is

of the kind that the discretionary function exception was designed to shield.” Id. at 322–23.

“Because the purpose of the exception is to prevent judicial ‘second-guessing’ of legislative and

administrative decisions grounded in social, economic, and political policy through the medium

of an action in tort, when properly construed, the exception protects only governmental actions

and decisions based on considerations of public policy.” Id. at 323 (cleaned up) (quoting

Berkovitz v. U.S., 486 U.S. 531, 536–37 (1988)). Where “a regulation allows the employee

discretion, the very existence of the regulation creates a strong presumption that a discretionary

7 – Opinion and Order

act authorized by the regulation involves consideration of the same policies which led to the

promulgation of the regulations.” Id. at 324.

“If the challenged action satisfies both of these two prongs, that action is immune from

suit—and federal courts lack subject matter jurisdiction—even if the court thinks the government

abused its discretion or made the wrong choice.” E.g., Esquivel v. U.S., 21 F.4th 565, 574 (9th

Cir. 2021) (original citations omitted).

I. Discretion

Applying the first prong, the Court asks whether there was a federal statute, regulation, or

policy in place that specifically prescribed a course of action for the Forest Service regarding the

Beachie Creek fire. See Miller v. U.S., 163 F.3d 591, 594 (9th Cir. 1998). Plaintiffs point to two,

arguing that the WFDSS Decisions and wildfire management policy eliminated the Service’s

discretion in this circumstance. Those arguments fail for multiple reasons.

First, Plaintiffs’ reliance on WFDSS Decisions is misplaced. Plaintiffs contend that

because those Decisions directed “full suppression,” the Forest Service had no discretion to

“allow[] firefighting resources to stand idle.” Pls.’ Resp. 17–18, ECF No. 40. According to

Plaintiffs, “full suppression” directs the firefighters “how to fight the fire” because it tells “the

agency to ‘put the fire out’” and “establishes a timeline for those firefighting actions.” Id. Not

only is Plaintiffs’ characterization of the Decisions plainly wrong, but their insinuation that the

Forest Service was “idle” is dramatically unfair. The WFDSS Decisions establish only that “full

suppression” is the chosen course of action. Specific choices regarding the implementation of

that directive are left to the firefighters. No language in the Decision prescribes a specific method

of suppression, imposes a specific time constraint in which to accomplish full suppression, or,

more pointedly, compels the Forest Service to make a specific number of drops with a specified

8 – Opinion and Order

number of helicopters. Those judgement calls are left to the discretion of the firefighters. See

Miller, 163 F.3d at 595 (“while the above standards and procedures outline certain requirements

for fire suppression, they do not eliminate discretion because they do not tell firefighters how to

fight the fire”). In fact, with respect to aviation operations, the Forest Service is specifically

directed that “[a]viation use must be prioritized based on management objectives and probability

of success.” Robertson Decl. Ex. B, at 323, ECF No. 12. “Risk management is a necessary

requirement for the use of any aviation resource” and “must include risk to ground resources, and

the risk of not performing the mission, as well as the risk to the aircrew.” Id. In other words,

firefighters are expected to choose when to deploy air resources dependent on individual risk

management assessments. That is discretion, and it is telling that Plaintiffs did not present any

policy commanding the Service to conduct water drops at a defined pace or quantity.

Moreover, the existence of some mandatory language “does not eliminate discretion

when the broader goals sought to be achieved necessarily involve an element of discretion.”

Miller, 163 F.3d at 595. In this setting, the consequences of Plaintiff’s argument reveal its

senselessness. If Plaintiffs were correct, anytime the Forest Service elected “full suppression” as

the best course of action, they would be compelled to conduct constant water drops from all

available helicopters—regardless of visibility or inclement weather, irrespective of landscape,

absent considerations of safety, and completely untethered to changes in resource scarcity. These

circumstances inherently dictate discretion, and Plaintiffs’ proffered Decisions fail to eliminate

that. See id. at 595.

Plaintiffs’ second theory comes closer, but still fails. Section 5130.3 of the Forest Service

Manual (“FSM”) restricts the use of wildfire as a natural resource management tool to

circumstances where “initial and long-term risk is within acceptable limits as described in the

9 – Opinion and Order

risk assessment.” Hanglund Decl. Ex. 26, at 3. Because the Forest Service determined any

benefit of the Beachie Creek fire was not commensurate with the risk, the FSM precluded the

Service from “deci[ding] to use the Beachie Creek fire for natural resource management

purposes,” according to Plaintiffs. Pls.’ Resp. 18. Fatal to their argument, however, is the lack of

any proof that the Forest Service was improperly “letting the Beachie Creek Fire burn for natural

resource purposes.” Each Incident Decision directed full suppression and clarified that there was

no actionable benefit to the fire. Plaintiffs list of past occasions wherein the Forest Service used

wildfire as a resource management tool does not prove that, on this occasion, that is what the

Service was doing, particularly where the reports and firefighter testimony conclusively indicate

otherwise. The testimony of retired Forest Service worker Frank Carroll, who reviewed the

record and derived the “opinion that, more likely than not, the Beachie Creek Fire was not

extinguished because the Forest Service chose to use it as a natural resource management tool,”

similarly fails to meet Plaintiffs’ burden. Lastly, even if Plaintiffs could somehow demonstrate

that the Forest Service allowed Beach Creek to burn, the Court hesitates to construe that decision

as non-discretionary given that section 5130.3 of the FSM requires risk assessments by the

Forest Service which inherently implicate an element of judgment.

As a final matter, the Court notes that finding discretion in this context is consistent with

other courts in this Circuit. On multiple occasions, past courts have addressed the first prong and

concluded that Forest Service decisions regarding the allocation of fire suppression resources are

discretionary. See, e.g., Defrees v. U.S., 738 F. Supp. 380, 385 (D. Or. 1990) (dismissing

plaintiffs’ FTCA claim for negligence against the Forest Service because the court found the

Service “had considerable discretion in deciding how to allocate suppression resources”);

Parsons v. U.S., 811 F. Supp. 1411, 1417 (E.D. Cal. 1992) (dismissing plaintiffs’ FTCA claims

10 – Opinion and Order

for negligence against the Forest Service because the court found “that the challenged actions

involved judgment or choice and were, in fact, discretionary acts”); Miller, 163 F.3d at 595

(affirming the dismissal of plaintiffs’ FTCA claim because the Ninth Circuit agreed “that the

Forest Service retained ‘considerable discretion in deciding how to allocate suppression

resources’”); Esquivel, 21 F.4th at 574–75 (affirming the dismissal of plaintiffs’ FTCA claims

against the Forest Service after concluding that the Forest Service Manual “exude[s] discretion

by the Forest Service when determining how best to fight wildland fires”). As notably stated by

the Ninth Circuit: “our precedent already establishes that claims involving how the government

conducts fire suppression operations are generally barred by the discretionary function

exception.” Esquivel, 21 F.4th at 574.

For the same reasons, this Court concludes that the Forest Service’s actions with respect

to the Beachie Creek fire were discretionary. In their Motion, the Forest Service highlights

multiple provisions in the FSM echoed in past decisions that entitle firefighters to use their

judgment in exercising responsive decision-making:

Employees are expected and empowered to be creative and

decisive, to exercise initiative and accept responsibility, and to use
their training, experience, and judgment to implement the agency’s
mission.

Doctrinal approach goes beyond strict compliance with procedural

rules, and promotes risk-based application of wildland fire
management principles to improve decision making and firefighter
safety.

The Forest Service recognizes that the nature of the wildland fire
environment is often dynamic, chaotic, and unpredictable. In such
an environment, reasonable discretion in decision-making may be
required. Thus, the body of procedures, best practices, concepts,
and principles described in the listed publications should be
considered the best guidance available for the majority of
circumstances. Forest Service employees must use their best

11 – Opinion and Order

 judgment in applying the guidance contained in these references to
real-life situations.

Robertson Decl. Ex. A, at 7, 8, 14, ECF No. 12; see also 7–8; see also Esquivel, 21 F.4th at 575.

Because numerous provisions of the FSM are saturated with discretion, and finding Plaintiffs

have failed to present any contrary policy, the Court concludes that the first prong is met.

II. Policy Considerations

As to the second question—whether the Forest Service’s choices were susceptible to a

policy analysis grounded in social, economic, or political concerned—the Court likewise finds in

the affirmative.

In Esquivel, the Ninth Circuit provided the following:

Our decision in Miller makes clear that decisions regarding how to

perform fire suppression operations are policy-based decisions
covered by the discretionary function exception. . . . Since Miller
establishes that decisions regarding whether and how to perform
fire suppression operations are discretionary functions rooted in
policy, the discretionary function exception extends to all other
conduct “based upon the exercise or performance” of these
operations.

Esquivel, 21 F.4th at 575–76 (emphasis added). The Court finds no reason in this matter to

depart from that holding.

It appears that the thrust of Plaintiffs’ claims is not that the Forest Service’s response to

the Beachie Creek fire violated some mandatory policy; it is that the Forest Service’s response to

the Beach Creek fire conflicted with Plaintiffs’ vision of the best course of action. Instead of

pointing to a definitive policy violation, Plaintiffs’ brief dedicates pages to explaining how, from

their perspective, the Forest Service missed an opportunity to put out the fire in its early stages.

Plaintiffs may be right. But lacking the insight and expertise of the Forest Service, Plaintiffs are

ill-positioned to make that judgment call. Which is precisely the purpose of the discretionary

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function exception: to protect the policy-based decisions of agencies best positioned to make

them. Because the challenged decisions fall within the discretionary function exception, this

court lacks jurisdiction and Plaintiffs’ FTCA claims must be dismissed.

CONCLUSION

Defendant’s Motion to Dismiss, ECF No. 8, is GRANTED. This matter is dismissed with

prejudice and without leave to amend. Plaintiffs’ Motion to Consolidate, filed at ECF No. 32 and

stayed at ECF No. 35, is accordingly DENIED as moot.

IT IS SO ORDERED.

DATED this 6th day of December, 2024.

_______s/Michael J. McShane_________
Michael J. McShane
United States District Judge

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