[00:00:00] Speaker 03:
We'll turn to 23-4068, Strawberry Water Users Association versus the United States.

[00:00:09] Speaker 03:
Council.

[00:00:13] Speaker 04:
Judge Hertz, thank you.

[00:00:15] Speaker 04:
Quinton Rhodes on behalf of the appellant, Strawberry Water Users Association.

[00:00:20] Speaker 04:
In this case, we think that there are three principal reasons why the district court fell into error in ruling that it didn't have jurisdiction, subject matter, jurisdiction over the matter.

[00:00:30] Speaker 04:
The first reason is the US Supreme Court's ruling in Rainier.

[00:00:35] Speaker 04:
The second reason is that the wild land urban interface is private property, at least the urban portion of that.

[00:00:48] Speaker 04:
And so the Forest Service assertion of jurisdiction and management of that private property is not authorized by Congress.

[00:00:56] Speaker 04:
The third reason we think that the discretionary function

[00:01:00] Speaker 04:
doesn't apply in this case is that the Forest Service decided to proceed without consultation with NEPA.

[00:01:08] Speaker 04:
In other words, it didn't apply NEPA, misapply it, and abuse its discretion.

[00:01:15] Speaker 04:
It just pretended or acted as if NEPA didn't exist.

[00:01:20] Speaker 04:
We don't think it has discretion to do that.

[00:01:22] Speaker 00:
So on your first issue, do we need to consider the Rainier argument?

[00:01:26] Speaker 00:
And we resolved that exact argument in Knyzovich, which you argued.

[00:01:31] Speaker 04:
Your Honor, I don't believe so.

[00:01:33] Speaker 04:
In Knyazovich, there's some pretty important factual distinctions between Raynier and Knyazovich.

[00:01:39] Speaker 04:
For example, in Knyazovich, there's a shortage of resources.

[00:01:43] Speaker 04:
There wasn't an effort to control the fire.

[00:01:47] Speaker 04:
In Raynier, once the fire was controlled, they dispersed the resources and kept on a skeleton crew.

[00:01:56] Speaker 04:
And then after a few days or weeks, they had an unexpected wind event, and the fire exploded.

[00:02:02] Speaker 04:
That's almost exactly what happened.

[00:02:04] Speaker 03:
Yeah, but the whole point of Konecevich was Rainier didn't talk about discretionary function exception.

[00:02:11] Speaker 04:
Well, the facts are different in the sense that the The facts are irrelevant.

[00:02:18] Speaker 03:
If the Supreme Court doesn't address the legal issue, you're relying on that decision.

[00:02:24] Speaker 04:
The way we read it, it did, in the sense that it says that none of the exceptions apply.

[00:02:32] Speaker 04:
It says that none of them are relevant here.

[00:02:35] Speaker 04:
And the legal argument was that federal firefighters can't be held liable under the Federal Tort Claims Act.

[00:02:45] Speaker 04:
And the court says specifically, none of these exceptions are relevant here.

[00:02:50] Speaker 04:
That's the court's word.

[00:02:52] Speaker 03:
None of these exceptions?

[00:02:54] Speaker 04:
I'll quote from it, Your Honor.

[00:02:56] Speaker 04:
Thank you.

[00:02:58] Speaker 04:
It said, the Tort Claims Act, and this is on page 318.

[00:03:02] Speaker 04:
The Tort Claims Act makes the United States liable, parent with certain exceptions which are not relevant here, closed parent, for the negligence of its employees.

[00:03:12] Speaker 04:
And so one of those exceptions is the discretionary function exception.

[00:03:18] Speaker 04:
And so that's how it addressed it.

[00:03:21] Speaker 04:
And the policy issue is the same.

[00:03:24] Speaker 04:
in the sense, as it is in this case, in the sense that, well, we need to give the discretion to federal firefighters.

[00:03:31] Speaker 04:
And if they make a mistake, we shouldn't hold them liable.

[00:03:33] Speaker 04:
But Justice Black and Rainier put his finger on the fairness of allowing for those mistakes to fall on a few people.

[00:03:44] Speaker 04:
And he discusses at page 320 of the US report that the Congress made the determination that the nation as a whole benefits from

[00:03:53] Speaker 04:
the work of federal firefighters, generally speaking.

[00:03:56] Speaker 04:
And if they make a mistake, tortiously harm someone, then the nation as a whole should bear that cost.

[00:04:05] Speaker 04:
And it shouldn't fall on one or a small number of people who are either made destitute or horribly injured to bear the cost of that mistake.

[00:04:14] Speaker 03:
And so- What was the mistake here?

[00:04:16] Speaker 03:
What do you say the Forest Service should have done once the fire started?

[00:04:23] Speaker 04:
two of these small fires that they had the resources and the capability and the opportunity to just put them out.

[00:04:30] Speaker 04:
And instead, they decided we're going to use these fires for resource benefits in the wildland-urban interface.

[00:04:37] Speaker 04:
And so they're making a decision to use this fire, wildfire use, to reduce hazardous fuels on their property and on the urban aspect of the interface.

[00:04:49] Speaker 02:
So the challenged action

[00:04:51] Speaker 02:
for purposes of the discretionary functioning section, is the decision in how to handle these two particular fires.

[00:05:00] Speaker 02:
Is that right?

[00:05:02] Speaker 04:
Yes.

[00:05:02] Speaker 04:
And making that decision that it's going to use these for these resource benefits.

[00:05:07] Speaker 02:
Why is the national plan and the national strategy even relevant then?

[00:05:12] Speaker 04:
It informs the decision making of the local decision makers.

[00:05:18] Speaker 02:
I don't understand that.

[00:05:20] Speaker 02:
The challenged action is either a discretionary decision that violates the federal statute or it doesn't.

[00:05:31] Speaker 02:
How does the national plan and the national strategy inform our inquiry of whether the challenged action under Konezovich violates the federal statute or not?

[00:05:46] Speaker 04:
It's the expression of the leader's intent.

[00:05:49] Speaker 04:
So you have the strategy and then the plan.

[00:05:52] Speaker 04:
Then you have the Forest Service chief's expression of how we're going to execute this strategy and plan.

[00:05:57] Speaker 04:
And then you have the local folks with the red-green map implementing that plan and then executing it when they make the decision not to fight these fires.

[00:06:06] Speaker 04:
So that's how it flows.

[00:06:07] Speaker 02:
So if I'll ask this and then I'll shut up.

[00:06:12] Speaker 02:
If we decide that the decision on how to handle these two particular fires

[00:06:19] Speaker 02:
was driven by a desire to prevent these fires from interfering with private or non-federal property.

[00:06:28] Speaker 02:
And we agree with your argument about the national plan and the national strategy.

[00:06:35] Speaker 02:
Aren't we obligated then to find that the discretionary function exception does insulate the government from liability because the challenged action fell within the Forest Services discretion?

[00:06:50] Speaker 04:
If the challenge action were simply the local wildland management, if the urban part of it wasn't in there.

[00:07:00] Speaker 04:
So the national strategy on federal lands, the plan to implement that strategy on federal lands, the local green-red map for federal lands, that's all within the Forest Service's purview and authority from Congress.

[00:07:17] Speaker 04:
But when you add in that part about the urban aspect of it and how we're going to reduce fuels on other people's property as well, that's where you need some agreement from the locals.

[00:07:29] Speaker 04:
We see in the answer brief from the government, they talk about the Flame Act.

[00:07:34] Speaker 04:
Well, the Flame Act is very specific.

[00:07:36] Speaker 04:
It says that the federal authorities are given power to enter into cost sharing agreements with state

[00:07:47] Speaker 04:
local officials and to encourage the state and local communities to follow what they've determined to be the best practice.

[00:07:55] Speaker 04:
So it doesn't give them, it doesn't give the federal authorities the right to come in and implement what they've determined to be the best practice, but it gives them these opportunities or authorities to enter into agreements with them, to try to persuade them to execute the same strategy.

[00:08:12] Speaker 04:
That's not what happened here.

[00:08:13] Speaker 04:
There's no evidence of that ever occurring.

[00:08:16] Speaker 04:
Well, let me put it this way.

[00:08:19] Speaker 03:
When these fires occurred, there's been a lot of discussion about how to manage fires on public lands and private lands too.

[00:08:27] Speaker 03:
Because some fires have gotten much worse than in the past because there hadn't been, because there had been strict fire control before then.

[00:08:38] Speaker 03:
And so you accumulated a lot of combustible material that led to very serious problems.

[00:08:45] Speaker 03:
So there is concern that maybe we need to let these fires progress a little more, maybe significantly more, to remove the combustible material.

[00:08:56] Speaker 03:
In deciding exactly how to weigh that against the need to put out a fire so it won't spread into an urban area or private land, isn't that exactly what discretionary function exception is?

[00:09:12] Speaker 03:
designed to protect a decision of that sort.

[00:09:15] Speaker 03:
And was that not the sort of decision making going on here?

[00:09:19] Speaker 04:
Well, that was the sort of decision making going on in Knizovic.

[00:09:22] Speaker 04:
Remember, that case just involved federal land and the reintroduction of fire as part of the ecology.

[00:09:28] Speaker 04:
This case involves both federal and private land.

[00:09:33] Speaker 03:
And so that's going to be true whenever something happens on federal land that spreads.

[00:09:38] Speaker 03:
If it goes far enough, it's going to hit private land.

[00:09:41] Speaker 03:
Wasn't there concern about how to deal with public land?

[00:09:47] Speaker 03:
And in this case, the decision didn't work out well, and it spread far and injured private property.

[00:09:56] Speaker 04:
And I think that that's where the Rainier case comes in.

[00:10:01] Speaker 04:
These big fires that occur under a let burn policy wind up destroying private land.

[00:10:09] Speaker 04:
And the Congress has said, hey,

[00:10:11] Speaker 04:
The way Justice Black described it is like, well, maybe that's a good thing for the United States to have those big fires on private and public land.

[00:10:20] Speaker 04:
It's better off in the long run for all of us.

[00:10:23] Speaker 04:
Well, if that's the case, when there's a mistake and some individual or small group of individuals gets hurt because of it, is it fair to put the cost of these benefits for all the rest of us on this small group?

[00:10:36] Speaker 03:
And that's a very compelling argument, except

[00:10:40] Speaker 03:
that the discretionary function exception has decided how those issues have to be resolved.

[00:10:48] Speaker 03:
And it's at the expense of the private property owners and the other people who are harmed by the exercise of discretion.

[00:10:55] Speaker 03:
Isn't that the choice that was made?

[00:11:00] Speaker 04:
Well, we don't believe that's the outcome.

[00:11:03] Speaker 04:
of Rainier.

[00:11:04] Speaker 04:
We believe the outcome of Rainier is what she control here is that fair public policy analysis that was adopted by the court that says that ought to happen here.

[00:11:14] Speaker 00:
And if you look at Berkowitz- Did you make that argument in the district court?

[00:11:18] Speaker 00:
Excuse me?

[00:11:18] Speaker 00:
Did you make that argument in the district court?

[00:11:20] Speaker 00:
this argument about Rainier, sort of the, what you're saying Knizovitch didn't resolve about Rainier, was that argument presented to the district court?

[00:11:28] Speaker 04:
I don't think we had an argument about whether Knizovitch applies.

[00:11:32] Speaker 00:
Well, not Knizovitch, but did you make a first principles argument about Rainier and is it the same argument you're making now?

[00:11:39] Speaker 04:
We made the argument that Rainier applies to the case and should control.

[00:11:43] Speaker 00:
Okay.

[00:11:44] Speaker 04:
And these other arguments that we've made in this case as well is even if it doesn't, then the discretionary function doesn't apply because there's no discretion to manage private land.

[00:11:57] Speaker 04:
And ultimately, there's no discretion to avoid NEPA analysis.

[00:12:01] Speaker 00:
Can I ask you a question about something that I found sort of curious?

[00:12:06] Speaker 00:
In the district court's order, there's a footnote where the district court said that you essentially conceded that

[00:12:13] Speaker 00:
If you couldn't prove that it was the United States' intention to burn non-federally owned land, then dismissal was appropriate.

[00:12:21] Speaker 00:
And I'm trying to understand how to understand that kind of concession here on appeal.

[00:12:28] Speaker 00:
In other words, what are we to look at to discern whether the United States, in this case, on this record, whether there's an intent to even burn non-federally owned land?

[00:12:39] Speaker 00:
Is it just this urban aspect of the interface?

[00:12:42] Speaker 04:
Well, they clearly intended to burn a federal land.

[00:12:45] Speaker 04:
That's where the fires were.

[00:12:47] Speaker 00:
Non-federally owned land.

[00:12:49] Speaker 04:
With respect to that, they had the red-green map.

[00:12:52] Speaker 04:
And these places that burned were within the red-green map.

[00:12:55] Speaker 00:
But the United States intended that was the intent of the action.

[00:12:58] Speaker 04:
Well, not in the sense that they intended to go out and burn other people's property, but yes, in the sense that they wanted to reduce what they call the hazardous fuel load on everyone's property.

[00:13:10] Speaker 02:
And that's where you're

[00:13:12] Speaker 02:
I think I now get your answer to my earlier question.

[00:13:17] Speaker 02:
So it's not the interim decision that you base the Forest Services intent.

[00:13:24] Speaker 02:
You're basing it on the Forest Services plan and strategy and assuming that the people that executed the red-green map on this particular occasion were

[00:13:40] Speaker 02:
following some strategy and the plan and the strategy to let fire burn onto non-federal property.

[00:13:52] Speaker 02:
Am I right?

[00:13:53] Speaker 04:
The strategy is to reduce hazardous fuels in the wildland-urban interface.

[00:13:59] Speaker 04:
And they use mechanical means, they use prescribed fire means, and then they use wildland fire to do it.

[00:14:06] Speaker 04:
And if their plan is to reduce

[00:14:10] Speaker 04:
those hazardous fuels in that interface, then it has to involve private land because the urban part of it is always private.

[00:14:16] Speaker 02:
What if the plan and the strategy allowed that, but the people that were executing this plan with regard to these two particular fires decided not to allow the fire to spread on a non-federal property?

[00:14:29] Speaker 04:
Well, that would be an issue for Discovery to depose them and see what it is that they were

[00:14:34] Speaker 02:
Well, more than that, wouldn't the discretionary function exception apply?

[00:14:39] Speaker 02:
Because the administrators of the challenged decision did have discretion to do what they did, right?

[00:14:49] Speaker 04:
If they were concerned only with federal land and not the urban aspect of the interface.

[00:14:54] Speaker 04:
So we would urge that the district court be reversed and that subject managers be found.

[00:15:00] Speaker 04:
Thank you.

[00:15:02] Speaker 01:
Good morning.

[00:15:03] Speaker 01:
Amanda Berndt on behalf of the United States.

[00:15:05] Speaker 01:
May it please the court.

[00:15:07] Speaker 01:
Appellants challenge two decisions by the Forest Service to delay full suppression of the Bald Mountain and Pole Creek wildfires.

[00:15:14] Speaker 01:
Both fires were ignited by lightning.

[00:15:16] Speaker 01:
Both occurred in remote areas of the Uinta-Wasatch-Cache National Forest.

[00:15:21] Speaker 01:
In responding to these fires, the fire managers considered a variety of factors as indicated in the relevant decisions.

[00:15:29] Speaker 01:
These include the current and predicted

[00:15:31] Speaker 01:
weather conditions, available resources, public and firefighter safety, risks to private land, and the potential that these fires could be utilized to achieve forest plan objectives.

[00:15:44] Speaker 01:
These decisions were squarely within the Forest Service's mandate to manage and protect forest system lands and were authorized by the Controlling Forest Plan.

[00:15:55] Speaker 01:
In granting the United States motion, the District Court faithfully applied

[00:15:59] Speaker 01:
the familiar two-pronged test from Berkovitz in holding that no statute, regulation, or policy specified the precise manner in which the Forest Service was required to respond to these wildfires or restricted what factors the Forest Service could or could not consider.

[00:16:17] Speaker 03:
Let me ask you two questions.

[00:16:23] Speaker 03:
The opposing counsel quoted some language from Rainier that he says shows that it was rejecting the discretionary function exception because the Supreme Court said there are exceptions, but they don't apply here.

[00:16:40] Speaker 03:
How do you read that language in Rainier?

[00:16:42] Speaker 03:
We may be bound by whatever our case name was interpreting Rainier, but assuming we can look at Rainier with fresh eyes,

[00:16:53] Speaker 03:
Why?

[00:16:54] Speaker 03:
What was wrong with that argument?

[00:16:56] Speaker 01:
Appellant's reading of Raynier is just a misreading of that case.

[00:16:59] Speaker 01:
That case, as two other circuits in addition to this circuit have held, Raynier is not a discretionary function case.

[00:17:06] Speaker 01:
And I think that's a point you raised earlier.

[00:17:07] Speaker 01:
The United States did not raise discretionary function as a defense in Raynier, either below or at the Supreme Court.

[00:17:16] Speaker 01:
The issue in Raynier was the scope of the waiver of the sovereign immunity.

[00:17:22] Speaker 03:
What did the court mean when it said no other exceptions apply?

[00:17:28] Speaker 01:
I believe all that means is that no party had raised other exceptions to the FTCA, so they weren't before the court properly.

[00:17:36] Speaker 01:
And so Raynier just simply doesn't apply here.

[00:17:40] Speaker 01:
I also think, as you raised, Judge Rossman, this wasn't squarely raised in the district court below.

[00:17:45] Speaker 01:
Appellant certainly cited a long segment of Raynier.

[00:17:51] Speaker 01:
But he never squarely raised that issue with the district court to suggest that it controls.

[00:17:58] Speaker 03:
The other question I had is, in terms of whether this decision-making was within its authority, opposing counsel's position seems to be that there was no authority

[00:18:11] Speaker 03:
for the Forest Service to consider the effects outside of federal land, and when they included private land in the red-green map, that that was outside the Forest Service authority.

[00:18:31] Speaker 03:
How do you respond to that?

[00:18:33] Speaker 01:
The red-green map, I want to be clear, doesn't suggest or even include

[00:18:39] Speaker 01:
areas where the Forest Service was considering using naturally occurring fires on private land.

[00:18:46] Speaker 01:
Those are areas within the national forest where wildfires could be considered.

[00:18:54] Speaker 03:
Well, he said the red green areas encompass some private land.

[00:18:57] Speaker 03:
Did they not?

[00:18:58] Speaker 01:
No, they do not.

[00:18:59] Speaker 01:
The map is certainly the wildland urban interface includes both private and Forest Service land, but the red green map and that

[00:19:08] Speaker 01:
You can see a depiction of that in the record at, I think it's 6-12.

[00:19:15] Speaker 01:
It is areas in the national, in the Uinta-Wasatch-Castle National Forest where wildfires would be considered for resource benefits or would be primarily suppressed.

[00:19:27] Speaker 01:
And the red areas are areas where they would likely

[00:19:30] Speaker 01:
need full suppression.

[00:19:32] Speaker 01:
If you look at that map and with an understanding of the Wasatch Front, the red areas are actually all of the areas along the Wasatch Front where that wildland urban interface exists.

[00:19:45] Speaker 01:
Where these fires occurred is well within the green areas of the map in the Mount Nebo wilderness.

[00:19:51] Speaker 01:
It's a very remote area far from the sort of wildland urban interface that council's discussing now.

[00:20:00] Speaker 02:
What impact do we give to Franklin Carroll's expert testimony since we are applying the summary judgment standard?

[00:20:11] Speaker 01:
I think there's no reason to credit Mr. Carroll's testimony to the extent it conflicts with the plain language of the policies.

[00:20:19] Speaker 01:
And then with regard to his argument on NEPA, as well as Mr. Redden's testimony on NEPA, that's plainly a question of law that the district court is empowered

[00:20:30] Speaker 01:
look at and need not rely on expert testimony for that.

[00:20:35] Speaker 01:
So we just don't think there's a genuine issue of fact here as to whether or not the Forest Service intended to burn private land.

[00:20:44] Speaker 01:
And particularly with regard to these fires, as the district court found, the fire managers were concerned with their reaching private land.

[00:20:57] Speaker 01:
They initially

[00:20:59] Speaker 01:
devised a response that would allow it to burn within a confined area, these fires to burn within confined areas of the forest service land, but to engage in suppression responses when it would potentially threaten private land.

[00:21:14] Speaker 01:
And then as the fires blew up and the managers lost control, the first and immediate response was to protect private land.

[00:21:24] Speaker 01:
and to protect public infrastructure.

[00:21:27] Speaker 01:
So the district court was correct in finding there was no evidence that they were intending to burn private land.

[00:21:33] Speaker 00:
Isn't that the dispositive thing in this case, that finding?

[00:21:36] Speaker 01:
Yes, we believe it is.

[00:21:38] Speaker 00:
I mean, it seems like there are several questions being presented, sort of various species of how to understand the discretionary function exception and whether

[00:21:45] Speaker 00:
the agency exceeded its statutory authority.

[00:21:47] Speaker 00:
Interesting question.

[00:21:48] Speaker 00:
Do you think we need to reach that question here if there is no evidence that the Forest Service intended to permit burns on private land?

[00:21:57] Speaker 01:
No, we don't think you need to reach that question.

[00:21:59] Speaker 01:
And that's exactly what the district court did, found that it did not need to reach that question because there is no evidence.

[00:22:05] Speaker 01:
The forest was, the fire managers here were clearly concerned with protecting private land to the extent they could and the fact that it

[00:22:13] Speaker 01:
the fire escaped our control was not their intent.

[00:22:18] Speaker 01:
So I think because as appellant concedes, these are policy judgments and well within the forest's discretion, we think the district court correctly found that the appellant's claims were barred by the discretionary function to the FTCA.

[00:22:36] Speaker 01:
I also think it's important that this court recognize

[00:22:41] Speaker 01:
the parallels here between its prior decision and hardscrabble.

[00:22:44] Speaker 01:
Certainly, the district court didn't have the benefit of the Knizhevich decision, but it did have hardscrabble.

[00:22:52] Speaker 01:
And in hardscrabble, this court found that even a failure to follow a mandatory procedure, i.e.

[00:22:58] Speaker 01:
the decision checklist in that case and here, the argument appellant is making is a failure to comply with NEPA, is at most an abuse of discretion.

[00:23:08] Speaker 00:
Is the Federal Tort Claims Act an appropriate vehicle for bringing any NEPA allegations?

[00:23:15] Speaker 00:
No, it is not.

[00:23:16] Speaker 00:
How does the government understand, if that's true and that's just law, that's just black letter law, obvious that it would be an APA claim, what is your understanding of the appellant's NEPA thesis here?

[00:23:34] Speaker 01:
There's two potential

[00:23:37] Speaker 01:
ways to interpret the argument.

[00:23:39] Speaker 01:
The first is, as they have argued more in this court, that just the simple failure to comply with NEPA removed all discretion from the Forest Service in responding with anything, I believe, other than full suppression.

[00:23:54] Speaker 01:
The other argument or the other way to interpret that is that the argument is that the failure to comply with NEPA was itself negligent.

[00:24:00] Speaker 01:
And as the district court found and as we've argued,

[00:24:03] Speaker 01:
That latter argument or interpretation would clearly be barred by agronics and the private party analog exception to the scope of the FTCA waiver.

[00:24:12] Speaker 01:
Thank you.

[00:24:15] Speaker 01:
If there are no further questions.

[00:24:16] Speaker 03:
I have a question.

[00:24:22] Speaker 03:
The underlying concern is private property owners suffer greatly

[00:24:28] Speaker 03:
as a result of a fire on government land.

[00:24:33] Speaker 03:
And those of us from New Mexico are very aware of that because of the terrible damage done by some probable negligence in northeast New Mexico.

[00:24:45] Speaker 03:
They are being compensated.

[00:24:46] Speaker 03:
I assume that's because of special congressional action, not because of any FTCA claims.

[00:24:53] Speaker 03:
Is that correct?

[00:24:54] Speaker 03:
I believe that's correct, Your Honor, because again, I... So there's nothing preventing seeking congressional action to compensate private owners.

[00:25:08] Speaker 03:
But that's generally the way we deal with the sort of destruction that occurred here.

[00:25:15] Speaker 03:
Am I correct about that?

[00:25:17] Speaker 03:
Or are there any successful FTCA claims in these fire cases?

[00:25:25] Speaker 01:
I'm not aware of any successful claims under the FTCA in challenging the Forest Service's response to naturally occurring fires, particularly in this circuit, but also in the Ninth Circuit and the Eleventh Circuit has also now considered this issue.

[00:25:40] Speaker 01:
And that's correct.

[00:25:43] Speaker 01:
There's nothing that would prohibit plaintiffs that are harmed by these actions from going to Congress.

[00:25:50] Speaker 01:
It's just that the FTCA isn't the proper vehicle.

[00:25:54] Speaker 03:
Well, the fire in New Mexico actually wasn't actually occurring.

[00:25:56] Speaker 03:
That was an intentionally started fire to take care of debris, and it got out of hand.

[00:26:02] Speaker 01:
Right.

[00:26:03] Speaker 01:
And the framework for prescribed burns is a very different process.

[00:26:10] Speaker 01:
And there actually can be some mandates that the Forest Service is required to follow.

[00:26:16] Speaker 01:
And I think there's a case in Florida that has looked at that and a couple cases in the Ninth Circuit.

[00:26:22] Speaker 01:
But even in the controlled burn context, if the Forest Service complies with their mandate and their procedures, their very specific procedures and mandatory directives, the courts have found that discretionary function will protect the United States from liability in those cases.

[00:26:42] Speaker 03:
Thank you, counsel.

[00:26:43] Speaker 01:
Again, if there's no further questions, we would ask that you affirm the district court in this case.

[00:26:48] Speaker 03:
Your time has expired, but I'm going to give you one minute, not one second more.

[00:26:53] Speaker 03:
If you have anything you want to respond to, you don't have to take the minute.

[00:26:57] Speaker 03:
But I'm trying to understand your claim, and maybe that minute can help.

[00:27:01] Speaker 04:
Thank you, Judge Hartz.

[00:27:03] Speaker 04:
In taking that minute, a couple of things I would point to you.

[00:27:06] Speaker 04:
One is, with respect to Carol and Redden's analyses of what happened, they go beyond the four corners of the documentation.

[00:27:16] Speaker 04:
They also look at what the Forest Service was doing.

[00:27:20] Speaker 04:
And the Forest Service is saying, you know, we let these fires burn and they got big, and we tried to keep them off your property, but we had no idea that they would get on your property if we let them burn.

[00:27:31] Speaker 04:
And so what the analysts looked at is not only the red-green map and how close this wildland-urban interface that the forests identify that is trying to reduce

[00:27:45] Speaker 04:
hazardous fuels in was to those red-green interpretations.

[00:27:51] Speaker 04:
But they also looked at what the firefighters said, what they did, and how you would interpret that whole package.

[00:27:57] Speaker 04:
So they're going beyond just issues of law and onto issues of fact.

[00:28:02] Speaker 03:
Thank you.

[00:28:03] Speaker 04:
Thank you.

[00:28:05] Speaker 03:
Thank you, counsel.

[00:28:05] Speaker 03:
Case is submitted.

[00:28:07] Speaker 03:
Counselor excused.