FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. David H. Hennessy, U.S. Magistrate Judge]
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
Lynch and Selya, Circuit Judges, and Levy, District Judge.
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.
first rehearse the background of the case dividing our
account into four movements.
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.
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.
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.
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.
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
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
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 ...