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Moss v. United States

United States Court of Appeals, Eighth Circuit

July 20, 2018

Swan B. Moss, III, Individually and as Co-Administrator of the Estate of G.Y.M., Deceased and On Behalf of Wrongful Death Beneficiaries of G.Y.M. Estate of G.Y.M.; Gay Cunningham Moss, Individually and as Co-Administrator of the Estate of G.Y.M., Deceased and On Behalf of Wrongful Death Beneficiaries of G.Y.M. Estate of G.Y.M.; Kerri Basinger, Individually and as Administratrix on behalf of Shane Edward Basinger Estate on behalf of Jadyn Rhea Basinger Estate on behalf of Kinsley Ann Basinger Estate; Anthony Lynn Shumake, Administrator of the Estates of Robert Shumake, deceased, Wilene Shumake, deceased, and N.S., deceased, and on Behalf of Wrongful Death Beneficiaries of Robert Shumake, deceased, Wilene Shumake, deceased, and N.S., deceased Estate of Robert Shumake Estateof Wilene Shumake Estate of N.S; Tara Roeder, Administratrix of the Estate of Deborah Busby Roeder, and on behalf of the wrongful death beneficiaries of Deborah Busby Roeder Estate of Deborah Busby Roeder; Natisha L. Rachal, on behalf of T.A.; Jerry Don McMaster, Individually and On Behalf of the Estate of Debra Wynne McMaster and His Minor Children, A.C.M. and E.C.M. Estate of Debra Wynne McMaster on behalf of A.C.M. on behalf of E.C.M.; Christy Pugh Basinger, on behalf of K S B; Benjamin L. Pate, on behalf of B.L.; Aaron Sultz, Individually and as Special Administrator of the Estate of Eric Wayne Sultz, on behalf of The Estate of Eric Wayne Sultz, Deceased, and Statutory Wrongful Death Beneficiaries of Eric Wayne Sultz Estate of Eric Wayne Sultz; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on behalf of the wrongful death beneficiaries of Bruce Wayne Roeder Estate of Bruce Wayne Roeder; Amanda Baker Willis, Individually and as Administrator of the Estates of K.S., deceased, and Julie Freeman, deceased, and on behalf of the wrongful death beneficiaries of K.S. and Julie Freeman Estate of K.S. Estate of Julie Freeman; Judith N. Pate, on behalf of B.L.; Adam Jez, Individually &as Administrator of the Est of Leslie Jez, Decd, obo Est of & Wrongful Death Beneficiaries of Leslie Jez, &Adam Jez, Individually &as Administrator of the Est of KJ, Decd, obo Est & Wrongful Death Beneficiaries of KJ Estate of KJ Estate of Leslie Jez; Susan Johnson, Administrator of the Estate of Sheri Wade, Deceased, on behalf of the Estate of Sheri Wade, and on behalf of the Wrongful Death Beneficiaries of Sheri Wade Estate of Sheri Wade; Candace Smith, individually and as Administratrix on behalf of Anthony Keith Smith Estate on behalf of Joseph Paul Smith Estate on behalf of Katelynn Nicole Smith Estate; Theresa Roeder, as the Administratrix of the Estate of Esther Kay Roeder, deceased, and on behalf of the wrongful death beneficiaries of Esther Kay Roeder Estate of Esther Kay Roeder Plaintiffs - Appellants
v.
United States of America; United States of America, Acting By and Through the Department of Agriculture, U.S. Forest Service, also known as Department of Agriculture, also known as U.S. Forest Service Defendants - Appellees

          Submitted: February 13, 2018

          Appeal from United States District Court for the Western District of Arkansas - Texarkana

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          ERICKSON, Circuit Judge.

         This case arises from the tragic flooding of the Little Missouri River in the Albert Pike Recreation Area ("Albert Pike") which is located in the Arkansas portion of Ouchita National Forest. Albert Pike is an outdoor camping and recreation site covering over two hundred acres of land, including portions of the Little Missouri River. On the night of June 11, 2010, an intense storm system caused rapid and serious flooding of the river. The rising water submerged several campsites within Albert Pike, resulting in the death of twenty campers.

         This appeal stems from eleven consolidated lawsuits alleging negligence and malicious conduct by the United States related to the development and maintenance of Albert Pike. The district court[1] granted the United States's motion to dismiss for lack of subject matter jurisdiction under the Federal Tort Claims Act ("FTCA"). After a careful review of the record, we affirm.

         I. Background

         Albert Pike is a large outdoor camping and recreation site. Winding through the site is the Little Missouri River, which gives visitors the opportunity to engage in popular recreational activities including fishing, canoeing, and swimming. The site also contains fifty-four campsites placed over four loops, marked as Loops A, B, C, and D. In 2010 it cost prospective campers $10 to secure a campsite overnight in Loops A, B, and C, and $16 to secure a site in Loop D. Loop D's higher cost was in part due to its developed campsites, which included electrical and water hookups for RVs.

         The Loop D campsites were constructed as part of a renovation and expansion project for Albert Pike launched by Congress in 2001. The project allocated over $600, 000 to renovate sites in Loop C and to build Loop D campsites. The redevelopment project was headed by District Ranger James Watson. The National Environmental Policy Act of 1969, 42 U.S.C. § 4321, required Watson to prepare an environmental assessment of the project. See 36 C.F.R. § 218.2. As part of that assessment, Watson put together a team including two "watershed specialists": Ken Luckow, a soil scientist, and Alan Clingenpeel, a hydrologist.

         Luckow and Clingenpeel were each consulted for their opinion as to whether any of the proposed campsites in Loop D would fall within a floodplain. Luckow, the soil scientist, prepared an initial report that concluded that "most of the area where the new campsites are proposed . . . should be considered as being within the 100-year floodplain." As a result, he recommended that any campsite in Loop D should be primitive. He explicitly recommended that any campsite should lack electrical and water hookups. He also recommended placing signs to warn campers of potential flooding.

         Ranger Watson wanted to build developed campsites within Loop D, in part due to a desire to put the appropriated funds to good use and in part to meet public expectations surrounding the project. Presented with Luckow's position, Watson sought a second opinion. Watson took Clingenpeel - the hydrologist - in person to the planned site for Loop D. Watson then asked him if he believed the proposed campsite would fall within the 100-year floodplain. Clingenpeel visually estimated the floodplain using the "double bankfull" method (which Clingenpeel himself describes as only a "quick estimate" of the floodplain). Relying on that estimate, Clingenpeel told Watson it was unlikely there would be flooding issues if all renovations took place above the sighted floodplain.

         Watson prepared a draft environmental assessment to submit for the project. The draft environmental assessment was circulated to various Forest Service offices, as well as Luckow and Clingenpeel. The environmental assessment partially included Luckow's floodplain analysis, but ultimately contradicted Luckow by stating that the proposed Loop D campsites would not fall within the 100-year floodplain. Despite the environmental assessment's final conclusion that the campsite would not fall within a floodplain, the environmental assessment still recommended posting signs to warn of flash floods. Clingenpeel offered no edits to the draft, while Luckow made only minor changes. The final environmental assessment was submitted. The Forest Service then filed a decision notice (signed by Ranger Watson) approving the project, including the creation of developed campsites within Loop D. The decision notice made no reference to the floodplain or the need to place signs. No signs were ever posted. Loop D opened for campers in 2004.

         Occasionally the Little Missouri River would rise, prompting minor flooding concerns for different campsites. Ranger Watson moved campers in Loop C on three different occasions in 2006-07 due to light flooding. An incident report from 2008 suggests that campers upstream from Loop D once requested assistance after rising waters washed their camping supplies downstream. Of ten documented flooding events ...


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