31 ELR 20501 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Marlys Bear Medicine v. United States

No. 99-35665 (241 F.3d 1028) (9th Cir. March 7, 2001)

ELR Digest

The court reverses a district court decision that descendants of a Native American who was fatally injured on a logging site on a Native American reservation in Montana failed to state a cause of action under state law against the United States and that the Federal Tort Claims Act's (FTCA's) discretionary exception barred their suit. The Bureau of Indian Affairs (BIA) has responsibility for the reservation's forest management, and it authorized the timber contract at issue. After the individual died, his descendants sued the BIA for negligence in authorizing the contract, failing to inspect and manage the site, failing to ensure proper safety measures, and failing to ensure that the logging company provided workers' compensation insurance. The court first holds that the BIA's decision to authorize the contract was protected from civil liability by the FTCA's discretionary function exception. The BIA's decision was an exercise of mandated discretion and involved policy considerations regarding reservation logging. The court, however, next holds that the discretionary function exception does not bar the descendants' claims of negligence for failure to inspect and ensure proper safety measures at the site. In the timber contract, the BIA required the company to comply with prescribed safety practices, and it retained the right to suspend the contract if the conditions were not met. Once the government undertakes the responsibility for a project's safety, the execution of that responsibility is not subject to the discretionary function exception. The court then holds that the Federal Acquisition Regulation requiring adequate workers' compensation insurance does not apply because the BIA neither purchased nor received services from or for the use of the federal government.

The court next holds that the company's use of an untrained employee in a logging operation in a high wind area was an inherently dangerous activity that, under state law, imposed a nondelegable duty on the BIA to ensure adequate safety measures at the site. The court also holds that state law recognizes a fiduciary duty between the BIA and the reservation, and this duty requires that the BIA act in the best interests of the reservation and its members. Here, the BIA, with its pervasive and comprehensive control over the reservation's timber operations, had a duty to ensure that basic safety practices were communicated and used at the site. Therefore, the descendants had two state-law causes of action against the United States.

The full text of this decision is available from ELR (13 pp., ELR Order No. L-345).

Counsel for Plaintiffs
Monte D. Beck
Beck & Richardson
1700 W. Koch St., Bozeman MT 59715
(406) 586-8700

Counsel for Defendant
Mark B. Stern
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[31 ELR 20501]


31 ELR 20501 | Environmental Law Reporter | copyright © 2001 | All rights reserved