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Evans v. United States

United States Court of Appeals, First Circuit

December 4, 2017

GEORGE EVANS, Plaintiff, Appellant,
UNITED STATES OF AMERICA, Defendant, Appellee, CRYSTAL FRANCIOSI, an Employee of the Department of Agriculture, sued in her Individual Capacity; UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants.


          Michael J. O'Neill and McGregor & Legere, P.C. on brief for appellant.

          William D. Weinreb, Acting United States Attorney, and Shelbey D. Wright, Assistant United States Attorney, on brief for appellee.

          Before Lynch and Selya, Circuit Judges, and Levy, District Judge. [*]


         In this case, a small bug incited a lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. The district court, acting through a magistrate judge, ruled that the FTCA's discretionary function exception barred the maintenance of the action. See Evans v. United States, No. 14-cv-40042, 2016 WL 5844473, at *8 (D. Mass. Sept. 30, 2016) (citing 28 U.S.C. § 2680(a)). After careful consideration, we affirm.

         THE BEETLES

         We first rehearse the background of the case dividing our account into four movements.

         Norwegian Wood

         The Asian Longhorned Beetle (ALB) is an invasive pest that arrived in the United States from Asia, concealed in wooden shipping crates and pallets. According to the United States Department of Agriculture (USDA), the ALB has the grim potential to be "one of the most destructive and costly invasive species ever to enter the United States." It bores into (and reproduces within) deciduous hardwood trees, such as maple, elm, ash, birch, poplar, and willow trees. These trees, collectively called "host trees, " are especially vulnerable to ALB infestation, which generally proves fatal to them. Consequently, ALB infestation poses a severe threat not only to all host-tree species (ranging from shade trees to forest resources worth billions of dollars) but also to a multitude of industries that depend on the availability of hardwood. As a result, the USDA has declared ALB infestation an emergency and has begun working with state and local governments to eradicate this pest before it causes lasting economic damage.

         In 2008, ALB infestations were first detected in Massachusetts. That August, the Massachusetts Department of Conservation and Recreation (DCR) issued a quarantine order under its authority, see Mass. Gen. Laws ch. 132, §§ 8, 11, 12; Mass. Gen. Laws ch. 132A, § 1F, to suppress and control nuisance conditions and regulated articles (including living, dead, cut, or fallen host trees). The state quarantine area included much of the City of Worcester, and the state quarantine order authorized DCR to use all lawful means to suppress, control, and eradicate ALB infestation (including the removal of all trees that could become infested). The state quarantine order also authorized DCR to enter upon lands as might be necessary either to implement the order or to conduct activities thereunder. Finally, the quarantine order authorized DCR to invest a federal agency, the Animal and Plant Health Inspection Service (APHIS), with the same array of powers.[1]

         The following month (September of 2008), the USDA issued an order to include portions of Massachusetts within the sweep of preexisting federal ALB quarantine regulations. See 7 C.F.R. § 301.51-1-9. These regulations impose strict requirements on the interstate movement of any trees or wood products susceptible to ALB infestation. In January of 2009, this federal quarantine was expanded to include the Worcester area. See id. § 301.51-3.

         Come Together

         Toward the end of 2008, DCR entered into a cooperative agreement (the Agreement) with APHIS to jointly combat the ALB infestation. The Agreement created the ALB Cooperative Eradication Project (the Project), a partnership marshaling federal, state, and local resources and aimed at eradicating the ALB through, inter alia, host-tree removal. The stated goal of the Agreement was that "[a]ll infested and certain high risk host trees will be removed and destroyed in order to eradicate the ALB from Massachusetts." In furtherance of this goal, APHIS agreed to develop and deliver "an effective public relations program, " to provide funds to DCR for host-tree removal contracts, and to furnish support personnel, equipment, and facilities.

         With the Agreement in place, the Project began to tackle ALB infestation one tree at a time. Typically, Project staff would visually survey trees to determine if they were infested with ALB. Infested trees were marked with red paint, indicating that their removal was obligatory. Uninfested trees that belonged to a host species were marked with blue paint, indicating that their removal was encouraged (though not required).

         DCR proceeded to write to property owners within the quarantine areas to inform them that, in consultation with APHIS, it had determined that it was necessary to take steps to eradicate ALB. Its letter explained that "the hardwood trees that have previously been marked with red paint . . . are to be cut, removed, and destroyed, " while "[a]dditional hardwood trees marked with blue paint . . . may need to be removed and destroyed." The letter further advised property owners that if trees in this latter category were going to be cut down, "notice will be provided in advance." Along with each letter, DCR mailed a form, which gave property owners an option: "the undersigned ___ DOES/ ___ DOES NOT request and authorize host trees to be cut and removed from the premises and destroyed." The form also requested a property owner's signature to authorize DCR's contractors to cut, remove, or destroy any trees. The property owner was advised that, even if he did not consent, "failure to permit authorized contractors to perform the removal actions at the premises . . . will result in DCR seeking enforcement of this Order in Superior Court."

         The Project maintained maps and charts indicating which property owners had authorized all host-tree removal, which had authorized only the removal of infested trees, and which had not yet signed and returned the form. Ordinarily, an APHIS representative would go into the field with the tree-removal contractors hired by DCR and point out which trees they should cut. Standard practice was that the APHIS representative would not instruct a ...

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