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FILED MISSOULA, MT
2006 SEP 5 PM 4 13
IN THE UNITED STATES DISTRICT COURT
B. Parties' arguments.
Plaintiffs allege that in the Spade Fire firing operations of August 6, 2000, Government employees' actions (1) were not properly authorized; (2) were unsafe given the extreme conditions; (3) were executed when employees did not know who or what would be endangered, and without adequate warning to those who were in its path; and (4) were unnecessary because the main Spade Fire would have spared Plaintiffs' properties. These acts and omissions are alleged to constitute negligence under Montana law.
Plaintiffs claim that these negligent acts and omissions are not protected by the discretionary function exception to the Federal Tort Claims Act because, alternatively: (1) Government employees did not possess discretion to violate various Government policies and directives, such as those requiring firefighters to consider safety above all other considerations, and to properly warn other firefighters and inhabitants before lighting a backfire; or (2) even if the Government employees had discretion to make the decisions that resulted in Plaintiffs' damages, those decisions are not of the sort the Federal Tort Claims Act was designed to protect.
The Government claims that its employees' firefighting actions of August 6, 2000 were discretionary, and the decisions and actions alleged to have caused Plaintiffs' damages are grounded in social policy. The Government argues that these decisions and actions are therefore shielded by the discretionary function exception to the Federal Tort Claims Act, and this Court lacks subject matter jurisdiction over Plaintiffs' case.
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