By Amanda Bronstad, originally published in The National Law Journal on 8/24/15.

Inherent Risk of Going Wild

August 24, 2015

Summer vacations have turned tragic this year at national parks, with visitors killed by grizzly bears and falling tree limbs, and campers sickened by an outbreak of the plague.

This year’s misfortunes follow last year’s total of 164 deaths at national parks, most occurring while visitors were hiking, swimming or from suicide, according to the National Park Service. In fact, the number of deaths excluding suicides at national parks rose to 185 in 2013 from 121 in 2007. By comparison, however, the national parks host more than 275 million visitors each year.

As the law would have it, the government can be held liable under the Federal Tort Claims Act for deaths and injuries at national parks and forests, but often those lawsuits fail, and visitors have only themselves — or nature’s forces — to blame when their adventures go wrong.

Capturing much attention are attacks by wild animals. During the five years from 2007 to 2013, six people died from animal attacks — four from grizzly bears, one from a snake and one from a mountain goat. The mountain goat case was at the heart of a U.S. Court of Appeals for the Ninth Circuit decision last month holding that the government was not responsible for the death of hiker Robert Boardman, who was gored by the wild animal at Olympic National Park.

“It’s a horrible thing to be attacked by an animal,” said Paul Figley, who served as deputy director in the torts branch of the U.S. Justice Department’s civil division in Washington from 1991 to 2006. “But if the government was going to be liable for these types of cases, when they’re doing everything they intended to do and got their program and followed it, then there’d be a lot of pressure to get rid of the animals. You could have Yellowstone without the bears, but you would have a different experience. There’s no way to have bears without the risk.”

So far, no lawsuits have resulted from this summer’s deaths of a hiker by a grizzly bear at Yellowstone and of two young campers by a falling tree limb at Yosemite.

In his years at the Justice Department, Figley, now associate director of the legal rhetoric program at the American University Washington College of Law, came across incidents of attacks from bears, mountain lions, moose, buffalo and alligators. Other cases involved falling rocks, chuckholes or hot springs. But the most common, he said, involved people who fell — usually from cliffs or waterfalls — or dove into water that was too shallow.

There are a host of legal defenses for the government, such as comparative or contributory negligence — basically that the victim bore some responsibility for the accident.

Figley said he once got a case dismissed involving a bear that bit the arm of a father who was driving through the park with his kids. “If you’re around bears, you shouldn’t have your arm out the window,” he said.

The Federal Tort Claims Act makes the government liable under the same circumstances that a private defendant would be. Plaintiffs can bring claims against both national parks, which are administered by the National Park Service within the U.S. Department of the Interior, and national forests, run by the Department of Agriculture’s U.S. Forest Service.

But the act carves out several limitations, most prominently the discretionary function exception, which is a “very challenging statute to get by,” said Wayne Mitchell of Anderson & Mitchell in Seattle, who sued the government on behalf of a woman who was injured from a fall at Mount Rainier National Park in Washington state. “That’s where most of the cases run aground.”

The discretionary function exception immunizes the government when its actions or inactions are found to be discretionary — and not based on a rule, statute or regulation — and grounded in “social, economic or political policy.”

“The NPS has to balance visitor access and safety with wildlife conservation and environmental protection,” said Jennifer Shah, a partner at Buffalo’s Phillips Lytle who was a trial attorney in the DOJ’s torts branch from 2000 to 2004.

That leaves courts to make judgment calls. In the July 27 Ninth Circuit decision involving the 370-pound goat, the court upheld dismissal of the case brought by Susan Chadd, Boardman’s wife. The suit alleged park officials were negligent in failing to kill the goat, which had become a known nuisance for years.

Writing for the majority, Judge Diarmuid O’Scannlain concluded that the public’s interest in seeing the goats outweighed the need to kill the animals. Though concurring, Judge Marsha Berzon agreed with dissenting Judge Andrew Kleinfeld that the law in this area had “gone off the rails.”

“There never was a park policy to leave dangerous animals alone because ‘the public desired to see the goats,’ the policy reason upon which the majority relies,” Kleinfeld wrote, noting that park officials killed the goat hours after Boardman’s death. “This case is analogous to the routine tort case, where a homeowner has a fierce dog that has attacked people and bitten one, but does not get rid of the dog until after it has torn some child’s face off.”

Mitchell agreed. “The courts have, unfortunately, in my mind, really broadened in this policy idea to basically say if we can come up with any conceivable policy consideration that would be involved in this incident then the discretionary function exception applies.”

In the case Mitchell filed, the Ninth Circuit reinstated the claims of his client, Donna Young, who suffered broken bones after falling through a 12-foot-deep hole, landing on a transformer that had melted the snow under her feet. The Ninth Circuit found that the exception shouldn’t shield the government from being held liable for a particular hazard that park officials not only failed to warn about but actually created.

The case, which was set for trial on Sept. 8, settled last month for an undisclosed amount.

In cases brought on behalf of 20 people who died in 2010 from a flash flood at Ouachita National Forest, the Forest Service has cited the Arkansas Recreational Use Statute in arguing for dismissal. Recreational use statutes protect landowners, both public and private, who let the public use their property free of charge for recreational purposes.

But the Arkansas statute doesn’t protect a landowner for “malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition.” Plaintiffs lawyers claim the Forest Service failed to follow its own regulations when building a campsite on a 100-year floodplain near the Little Missouri River. The government said park officials believed the campsite was outside the floodplain at the time they created it and that, furthermore, a floodplain wasn’t “ultra-hazardous.” The government also insisted the area had no history of injuries caused from floods.

Plaintiff Theresa Roeder had been going to the same Ouachita campground every year since she was a child. But that morning, while on a family trip, she awoke under her tarp to find herself knee-deep in water. Roeder, then 50, managed to escape by climbing up a mountain in pouring rain. Her mother and her step-brother and his wife died when their RV was swept down river.

“When you have to think about a happy place, this was all our family’s happy place,” Roeder said. “We never had a sense of flooding and never a sense you’d be trapped or washed away in any way.”