While one judge has found federal wildlife officials can be held liable for a fatal bear attack on an 11-year-old boy at a Utah campground, another judge has dismissed an identical case against their state counterparts.

Samuel Ives

The black bear that mauled Samuel Ives to death in American Fork Canyon had attacked another camper at the same location earlier the same day. In separate actions, Ives' parents sued U.S. Forest Service and Utah Division of Wildlife Resources (DWR) officials for failing to close the campground or post warning signs after the first attack.

The defendants in both cases invoked governmental immunities. But whereas U.S. District Judge Dale A. Kimball found the “discretionary function” exception to the Federal Tort Claims Act does not protect Forest Service rangers, a state court judge in Provo, Utah, used a broad reading of an immunity under state law to shield the DWR officers from liability.

Utah Code section 63G-7-301(5)(c) provides immunity if an injury “arises out of, in connection with or results from ... the issuance, denial, suspension, or revocation of, or by the failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar authorization.”

In granting the state's motion to dismiss, Utah County District Court Judge Gary D. Stott found the state officials were immune from liability for Ives' injury because it arose, at least in part, out of their failure to revoke the plaintiffs' authorization to use the campground in American Fork Canyon.

Ives' parents argued that the law applies only to deliberative, regulatory acts by state officials — and not to the response to an emergency in the wilderness. The DWR rangers did not follow a state regulation which requires them to request the closure or restricted use of campgrounds where nuisance black bears are active.

But while sympathizing with the plaintiffs' “heartbreaking situation,” Stott said in a Jan. 29 ruling that “it is not within the authority of this Court to craft exceptions to exceptions on which the Legislature has spoken plainly and [which] the Utah Supreme Court has interpreted broadly.”

“The Legislature probably did not foresee that section 63G-7-301(5)(c) would one day be applied  in a bizarre case involving a tragic bear attack,” he continued. “Nevertheless, this Court is 'constrained by the plain language of the Act.'”

In the federal case, Judge Kimball ruled that the discretionary function exception does not extend to the Forest Service's failure to protect the campers from the “immediate, known risk, specific in time and location” of the bear. “No policy judgment was involved, nor was there an exercise of political, social, or economic judgment,” he said in a Jan. 30 decision.

He also suggested that applying the exception to any “decisions –- or nondecisions –- that involve choice and any hint of policy concerns ... 'would allow the exception to swallow the FTCA’s sweeping waiver of sovereign immunity.'”

The troubling logic of Judge Stott's decision in the state case is that it leaves campers in Utah essentially with no remedy against negligent state officials for a wild animal attack. No matter how many times a nuisance bear attacked campers, officials would not be liable for any injuries arising from a failure to close the campground.

Stott has, in effect, allowed the exception to swallow Utah's waiver of immunity for governmental negligence.

By Matthew Heller
2/8/09