Mountain goats and government discretion

Chadd v. U.S. Nat’l Parks Serv., No. 12-36023 (9th Cir. July 27, 2015).

 A mountain goat in the Olympic National Park. These are not cute domesticated goats. These are linebackers with horns. (Credit: Sean Coffelt / flickr.)

A mountain goat in the Olympic National Park. These are not cute domesticated goats. These are linebackers with horns. (Credit: Sean Coffelt / flickr.)

Park rangers had named him “Klahhane Billy.” He was a 370-pound mountain goat in the Olympic National Park who had grown increasingly aggressive. He would block trails and paw the ground menacingly. Once he chased a park ranger for two miles. Another time, he charged a whole family and only retreated under a hail of rocks. Finally, in 2010, he gored a hiker in the femoral artery. He then stood over the wounded hiker, preventing his companions from reaching him. The hiker bled to death. Shortly thereafter, park rangers located Klahhane Billy—still with blood on his horns—and killed him.

The hiker’s estate sued the federal government under the Federal Tort Claims Act, alleging that the Park Service was negligent in failing to kill the goat in the years leading up to the hiker’s death. The federal government, however, is immune from claims arising from a “discretionary function.” To put boundaries on this discretionary-function exception, the Supreme Court has set up a two-part test. The first question is whether the government’s action or inaction involved “an element of judgment or choice.” The second is whether the government’s action or inaction was based on considerations of public policy. If the answers to both questions are “yes,” then the government is immune from liability. If the answer to either question is “no,” then the discretionary-function exception doesn’t apply.

The majority of this Ninth Circuit panel holds that the discretionary-function exception applies here. There’s no statute or regulation requiring park officials to have killed the goat, so the answer to the first question—did the Park Service’s inaction involve an element of judgment or choice?—is in the affirmative. The answer to the second question, says the panel, is also in the affirmative, because the Park Service had to weigh “multiple policy considerations” in deciding how to respond to the goat. The panel, however, cites only one policy consideration other than public safety: Mountain goats, while not native to the Olympics, had become an attraction to visitors. And Ninth Circuit precedent holds that even if the Park Service didn’t actually weigh this policy consideration in deciding not to kill Klahhane Billy, all that matters is that it could have.

Judge Kleinfeld dissents. He reads Ninth Circuit precedent differently from the majority. He would hold that the discretionary-function exception doesn’t apply because, as a matter of fact, the Park Service didn’t consider competing public policies when it failed to kill the goat. It simply failed to kill it. 

Judge Berzon concurs because, in her view, Ninth Circuit precedent requires the result that the panel majority reaches. But she urges the full court to reconsider that precedent.