The failure of wildlife officials in Utah to warn campers of the “known risk” of a specific bear makes them liable for the fatal mauling of an 11-year-old boy, the parents of Samuel Ives argue in court papers.

Cases involving wildlife management rarely succeed because of the broad immunity that government officials enjoy for the exercise of a “discretionary function.” The U.S. Forest Service has invoked that immunity in a motion to dismiss the wrongful-death suit brought by Ives' parents.

“[B]ecause the decision whether and how to warn of potential danger involves the balancing of many public policy objectives, it is a protected discretionary function ...,” government attorneys say.

The bear that killed Ives at a campground in American Canyon on June 17, 2007 had attacked a camper in the same location earlier that day. Officials searched for the bear after the attack on Jake Francom but did not post a sign warning campers about it or close the campground.

U.S. District Judge Dale A. Kimball is scheduled to hear the government's motion Nov. 19. And plaintiffs Kevan Francis and Rebecca Ives are saying he should distinguish between “a specific known risk and the generalized risks of recreation in wilderness areas.”

“The actions at issue here have nothing to do with ... what kinds of generalized warning signs should be posted to warn campers about the risks associated with bears,” they say in a brief opposing dismissal. “Rather, the action being challenged here is how the government dealt with a specific bear that was threatening a specific campsite.”

Attorney Sarah H. Young, who wrote the brief, presents the hypothetical case of government officials knowing “a canyon with several known campsites is about to be flooded due to a burst dam” but failing to warn campers, who perish as a result.

“[A]t a certain point, a life-threatening danger becomes so concrete that it is impossible to credibly assert that the failure to warn of that danger involved a decision that presented competing public policy concerns,” Young says, and

[The] danger involved in the case at bar was only slightly less dramatic than the flood hypothetical. The risk to anyone using the campsite in question, while the bear was still at large, was enormous, and the ability to warn campers, or close the campsite, required almost no effort.

In 1997, another Utah judge found no duty to warn campers before a bear attack in a U.S. Forest Service campground. But Young notes that in Gadd v. U.S., 971 F. Supp. 502, “[T]here had been no prior attacks in the area, nor was there any reason to suspect such an attack, apart from the generalized risks that bears present.”

Samuel Ives’ death is the only recorded fatality caused by a black bear in Utah history. His parents are seeking at least $2.1 million in damages from the Forest Service and the Utah Division of Wildlife Resources, which they have sued separately.

By Matthew Heller
11/17/08