April 2016 - Parks & Recreation - 40

L AW R E V I E W

is not working, " in particular, given
" the history of incidents surrounding mountain goats in Olympic. "
The federal appeals court rejected
Chadd's argument.
Competing Policy Interests
According to the federal appeals
court, " so long as a decision involves
even two competing policy interests, it is
'susceptible' to policy analysis and
is thus protected by the discretionary function exception. " (Emphasis
of court)
In this particular instance, the court
found two such policy considerations
existed - one involved visitor safety
and the other addressed the public's
desire " to see the goats. "
Both Dr. Happe and Olympic Deputy
Superintendent Todd Suess submitted
declarations stating, " The mountain goat
is an appealing, iconic animal within
Olympic . . . and is an attraction to park
visitors. In the past, the park has encountered significant opposition to possible
plans to remove some of the goats. " In
light of the public's interest in preserving
Olympic's goats, park officials implemented several non-lethal management
options, such as hazing, and explored the
possibility of relocating the goat.
Accordingly, in the opinion of the
federal appeals court, " the [National Park] Service's policy of prioritizing human safety over all other
considerations, " did not necessarily
create a directive that park officials
exterminate problematic mountain
goats. Contrary to Chadd's public
safety assertions, the court found
" nothing that forbids park officials
from protecting the goats to facilitate
the public's enjoyment of the species. " According to the court, there
was " no contradiction between the
goat's status as an exotic species and
Olympic's desire to implement safe38 Parks & Recreation

ty measures short of destruction. "
Moreover, in implementing " the
policy of prioritizing human safety, "
the federal appeals court found " the
means by which local officials ensure
human safety is left to the discretion
of superintendents and other decision-makers at the park level. "

Accordingly, in this
particular situation,
the court found " park
officials need only point
to some support in the
record that the decisions
taken were 'susceptible'
to policy analysis... "
Such discretion includes decisions
about animal destruction. Moreover,
the [National Park] Service's policy
manual lists several competing objectives that park officials had to consider in assessing the goat situation, including " park resources and values. "
Thus, in addition to the policy issues mentioned by park officials, the
[National Park] Service's guidelines
cite many competing considerations
that Olympic should have taken into
account when deciding how to deal
with the problematic goat. Whether
park officials actually took into consideration the policy objectives listed
in the... guidelines is irrelevant because the challenged decision " need
not be actually grounded in policy
considerations, but must be, by its
nature, susceptible to a policy analysis. " (Emphasis of court)

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Further, as noted by the court, " if
a regulation allows the governmental
employee discretion, as it did here,
there is a strong presumption that a
discretionary act authorized by the
regulation involves consideration of
the same policies which led to the
promulgation of the regulations. " Accordingly, in this particular situation,
the court found " park officials need
only point to some support in the
record that the decisions taken were
'susceptible' to policy analysis for the
discretionary function exception to
apply. " Specifically, in the opinion of
the court, " the implementation of the
safety regulation was itself subject to
competing policy concerns. "
Conclusion
As a result, since " the decision to use
non-lethal methods to manage the
goat was susceptible to policy analysis, " the federal appeals court held
" the discretionary function exception
applies, " barring federal liability in this
case. The federal appeals court, therefore, affirmed the order of the federal district court dismissing Chadd's
claims against the United States.
[Ed. Note: In contrast, the federal district court in Francis v. United States
denied discretionary function immunity
for a similar fatal wild animal attack in a
national forest. See: " Fatal Bear Attacks
Test Immunity Laws, " Law Review,
Parks & Recreation magazine, Dec.
2009 Vol. 44, Issue 12 http://cehdclass.
gmu.edu/jkozlows/lawarts/12DEC09.
pdf]

James C. Kozlowski, J.D., Ph.D., is an
attorney and Associate Professor in the
School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to law review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

April 2016 - Parks & Recreation

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