Harmon v. United States of America

MOTION to Dismiss for Lack of Jurisdiction Nicholas J Woychick appearing for Defendant United States of America. Responses due

D. IdahoApril 28, 2017

DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 1 RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY JESSICA R. GUNDER, MISSOURI STATE BAR NO. 60156 ASSISTANT UNITED STATES ATTORNEY NICHOLAS J. WOYCHICK, IDAHO STATE BAR NO. 3912 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF IDAHO WASHINGTON GROUP PLAZA IV 800 EAST PARK BOULEVARD, SUITE 600 BOISE, ID 83712-7788 TELEPHONE: (208) 334-1211 FACSIMILE: (208) 334-1414 Email: Jessica.Gunder@usdoj.gov Nick.Woychick@usdoj.gov Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO DOUGLAS G. HARMON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No. 4:15-CV-00173-BLW DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION COMES NOW the Defendant, United States of America, by and through Nicholas J. Woychick, Assistant United States Attorney for the District of Idaho, and hereby moves this Court to dismiss the above-captioned action in its entirety pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 2680(a). Case 4:15-cv-00173-BLW Document 30 Filed 04/28/17 Page 1 of 3 DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 2 The instant motion is supported by the Memorandum in Support of Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction filed contemporaneously herewith. Respectfully submitted this 28th day of April, 2017. RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY By: /s/ Nicholas J. Woychick NICHOLAS J. WOYCHICK Assistant United States Attorney Case 4:15-cv-00173-BLW Document 30 Filed 04/28/17 Page 2 of 3 DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 28, 2017, the foregoing DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION was electronically filed with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following person(s): Joel A. Beck joel@idaholaw.us /s/ Danielle Narkin Legal Administrative Specialist Case 4:15-cv-00173-BLW Document 30 Filed 04/28/17 Page 3 of 3 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 1 RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY JESSICA R. GUNDER, MISSOURI STATE BAR NO. 60156 ASSISTANT UNITED STATES ATTORNEY NICHOLAS J. WOYCHICK, IDAHO STATE BAR NO. 3912 ASSISTANT UNITED STATES ATTORNEY DISTRICT OF IDAHO WASHINGTON GROUP PLAZA IV 800 EAST PARK BOULEVARD, SUITE 600 BOISE, ID 83712-7788 TELEPHONE: (208) 334-1211 FACSIMILE: (208) 334-1414 Email: Jessica.Gunder@usdoj.gov Nick.Woychick@usdoj.gov Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO DOUGLAS G. HARMON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No. 4:15-CV-00173-BLW MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION I. INTRODUCTION Irrespective of any state common law duties that arguably arise under the genuinely disputed facts identified by this Court in its Memorandum Decision and Order (ECF No. 27), this Court lacks subject matter jurisdiction over Plaintiff’s tort claims. Accordingly, the Court must dismiss this action in its entirety pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 1 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 2 Civil Procedure and the Federal Tort Claims Act’s discretionary function exception, 28 U.S.C. § 2680(a).1 II. ARGUMENT The discretionary function exception preserves the government’s sovereign immunity in specific types of situations. According to this Court: The discretionary function exception restores sovereign immunity to the government when the plaintiff’s claim is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abuse[d]. 28 U.S.C. § 2680(a). In this way, the discretionary function exception serves to insulate certain governmental decision-making from judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the median of an action in tort. Armstrong v. United States, Case No. 1:13-CV-00163-BLW, 2014 WL 7409518, at *3 (Dec. 30, 2014) (internal quotation marks and citation omitted), aff’d Armstrong v. United States, Case No. 15-35094, ___ Fed. Appx. ___, 2017 WL 1433331 (9th Cir. Apr. 24, 2017). The discretionary function immunizes the United States from liability for alleged abuses of the government’s discretion in performing or failing to perform discretionary functions and/or duties, i.e., operating the Park Lateral and private headgates off of the Park Lateral. Because the government retained an element of judgment or choice with respect to carrying out these actions and because the challenged conduct is “susceptible to policy analysis,” the discretionary function 1 It is “well-established law that . . . jurisdictional defenses,” such as the discretionary function exception to the FTCA’s waiver of sovereign immunity, “cannot be waived by the parties and may be raised for the first time on appeal or even raised by a court sua sponte.” Prescott v. United States, 973 F.2d 696, 701 n.2 (9th Cir. 1992) (quotation omitted); see also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 n.2 (9th Cir. 2004) (lack of subject matter jurisdiction may be raised at any time pursuant to Rule 12(h)(3)); Richardson v. United States, 943 F.2d 1107, 1113 (9th Cir. 1991) (The discretionary function defense is jurisdictional and may be raised at any time). Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 2 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 3 exception shields the United States from liability. As a result, this Court lacks subject matter jurisdiction over Plaintiff’s tort claims and must dismiss this action in its entirety. A. The Existence of a State Tort Law Duty is Not Relevant in Determining Whether the Discretionary Function Exception Applies. The recognition of a state tort law duty is not relevant to the threshold jurisdictional determination presented under the Federal Tort Claims Act’s discretionary function exception. See Bailey v. United States, 623 F.3d 855, 860 n.2 (9th Cir. 2010) (“State tort law duties are not relevant to the determination of whether the discretionary function exception applies.”); Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1029 (9th Cir. 1989) (“negligence is simply irrelevant to the discretionary function inquiry”); Mitchell v. United States, 787 F.2d 466, 468 (9th Cir. 1986) (holding that negligence is irrelevant to the discretionary function issue); Webster v. United States, 823 F. Supp. 1544, 1552 (D. Mont. 1992) (“[In determining whether the discretionary function exception shields the government from liability], it is irrelevant here whether the BIA or its employees were negligent under state law.”). Additionally, considerations such as those that may arise under the Good Samaritan doctrine and/or Sections 323 and 324A of the Restatement (Second) of Torts are also irrelevant since actual negligence is not part of the court’s consideration in determining whether the discretionary function exception is available to the government. See Pennbank v. United States, 779 F.2d 175, 179 n.4 (3d Cir. 1985); Barnson v. United States, 630 F. Supp. 418, 421 (D. Utah 1985) (citations omitted) (“Because discretionary acts are immune regardless of whether they are negligent, the existence of a good samaritan [sic] duty is irrelevant to the discretionary function inquiry.”). Under this same rationale, factual disputes concerning the elements of a plaintiff’s negligence claims are also irrelevant to the discretionary function analysis. Hylin v. United Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 3 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 4 States, 755 F.2d 551, 553 (7th Cir. 1985) (factual issues concerning negligence are irrelevant to the central issue of whether the agency’s actions were discretionary). As the Ninth Circuit held in Bailey, [i]t is only after [the courts] determine as a matter of federal law that the discretionary function exception does not apply that [they] then evaluate whether the government can be held liable under the laws of the state where the act or omission took place.” Bailey, 623 F.3d at 860 n.2 (emphasis added) (citing 28 U.S.C. §§ 1346(b) and 2680(a)). As a result, questions concerning the application of the discretionary function exception must be resolved before conducting the typical negligence analysis. See also Johnson v. U.S., Dep’t of Interior, 949 F.2d 332, 335 (10th Cir. 1991) (“Application of [the discretionary function] exception is . . . a threshold issue—a jurisdictional issue which precedes any negligence analysis.”); Terbush v. United States, No. 102-CV-05509-SMS, 2010 WL 399136, at *8 (E.D. Cal. Jan. 28, 2010) (citations omitted) (“Application of the discretionary function exception is a threshold jurisdictional issue that must be resolved before the court conducts a negligence analysis.”). Thus, for purposes of the discretionary function exception and the government’s motion to dismiss, it matters not “whether BIA undertook a voluntary duty . . . to regulate water use on the FHIP.” ECF No. 27 at 24. Stated another way, although the assumption of a duty may be essential to prove negligence, it is irrelevant to the discretionary function exception analysis unless and until subject matter jurisdiction is first established. For the reasons explained more fully below, this Court lacks subject matter jurisdiction. Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 4 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 5 B. The FTCA’s Discretionary Function Exception Shields the United States from Liability for Claims Concerning the Government’s Operation and Management of the Park Lateral and Private Headgates. 1. The Government’s Operation of the Park Lateral, Including Decisions to Regulate Irrigation Flows from the Park Lateral and Decisions Concerning the Private Headgates, is Committed to Agency Discretion. Unlike the parties’ cross motions for summary judgment where this Court examined the common law elements of a state law cause of action for negligence, the Court must resolve the instant motion to dismiss under the two-step test that the Supreme Court first announced in Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). This test applies to all challenged acts or omissions, regardless of whether they are initial decisions to perform a task or subsequent decisions after the government has undertaken (or assumed the duty) to perform that particular task. See, e.g., United States v. Gaubert, 499 U.S. 315, 325-26 (1991); Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008); Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 977 (10th Cir. 1994); Andrulonis v. United States, 952 F.2d 652, 654-55 (2d Cir. 1991); see also Mellott v. United States, 808 F. Supp. 746, 750 (D. Mont. 1992) (“If a discretionary function was involved, the fact a decision was negligently made will not bring the challenged conduct outside the exception.”). The first step in the Berkovitz analysis is to determine whether a federal statute, regulation, or policy mandates a specific course of action, i.e., whether the government actor retained an element of judgment or choice with respect to carrying out the challenged action. Gaubert, 499 U.S. at 322. If the government action involved choice or judgment, the second step is to determine “whether that judgment is of the kind that the discretionary function exception was designed to shield, namely, only governmental actions and decisions based on considerations of public policy.” Terbush, 516 F.3d at 1129 (internal quotation marks omitted). Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 5 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 6 If the challenged action or omission satisfies these two prongs, the government is immune from suit based on that action or omission and federal courts lack subject matter jurisdiction. Berkovitz, 486 U.S. at 536; Arteaga-Ruiz v. United States, 164 F. Supp. 3d 1198, 1202 (D. Idaho 2016). In deciding whether the complained of conduct is shielded by the discretionary function exception, “the crucial first step is to determine exactly what conduct is at issue.” Rosebush v. United States, 119 F.3d 438, 441 (6th Cir. 1997) (citing Autery v. United States, 992 F.2d 1523, 1527-28 (11th Cir. 1993)); see also GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002) (same). In the instant case, the conduct at issue as framed by Plaintiff’s Complaint consists of the government’s alleged failures to manage and control irrigation flows from the Park Lateral and/or irrigation flows within private farms ditches. See ECF No. 1, ¶ 12 (“BIA personnel allowed [unidentified] headgates to remain open and otherwise failed to properly maintain the irrigation delivery ditch system.”); id., ¶ 18 (“[the BIA] breached its duty by failing to properly monitor water flow, padlock the headgate, and keep surface ditches maintained”).2 The Court construed the nature of the challenged conduct similarly in its recent Memorandum Decision and Order. ECF No. 27. In its Order, the Court interpreted Plaintiff’s action as one challenging the government’s alleged failure to regulate water use and shut off flows from the Park Lateral and/or as one challenging its alleged failure to adjust private headgates to restrict the flows into private farm ditches that Plaintiff claims third parties poorly maintained or managed. See ECF No. 27 at 26 (“[Harmon] sought only to have BIA . . . shut off 2 The Court disposed of any claims relating to the government’s alleged failure to “maintain” the private farm ditches in its Order, partially granting the government’s motion for summary judgment. ECF No. 27 at 28. Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 6 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 7 water to poorly maintained ditches”); see also id. at 15 (wherein the Court identified the issue as “whether BIA assumed a duty to regulate water use and shut off flows to poorly-maintained or managed ditches”); id. at 27 (wherein the Court opined that a reasonable trier of fact could find the flooding resulted from the “negligent failure to install a lock or collar on the Park Lateral headgate or otherwise restrict Ellsworth’s water use”). For purposes of the instant motion, it matters not whether the conduct relates to the government’s operation of the Park Lateral headgate or the private headgates off the Park Lateral; the government is immunized from liability for either action under the discretionary function exception. Here, Plaintiff has not pointed to any federal regulations, manuals, or guidelines that require the Fort Hall Irrigation Project (“FHIP”) to take a specific course of action concerning the regulation of water use in, or the restriction and/or recalibration of project flows from the Park Lateral into, the private farm ditches. Rather, as this Court has held, the regulations and operating guidelines leave questions concerning the regulation and control of irrigation flows in private farm ditches, the installation of locks or collars, and the control of flows from FHIP facilities to the agency’s discretion. See ECF No. 27 at 20-21 (citations omitted) (“the provisions cited by Harmon are permissive in tone, and do not appear to impose any mandatory obligations on the BIA.”)3 Where, as here, “established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it 3 Compare Weissich v. United States, 4 F.3d 810, 814 (9th Cir. 1993) (use of the term “should” in the probation guidelines “is suggestive, not mandatory”); Sabow v. United States, 93 F.3d 1445, 1452 (9th Cir. 1996) (same). Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 7 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 8 must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324. Because the cited regulations and guidelines leave the questions concerning the regulation and management of project flows and private farm ditches/headgates to the agency’s judgment and discretion, the government has satisfied the first prong of the two-part Berkovitz test. 2. The Government’s Operation of the Park Lateral, Including Decisions to Regulate or Restrict Irrigation Flows from the Park Lateral and Decisions Concerning the Operation of Private Headgates, is Susceptible to Policy Analysis. This Court must next consider whether the agency’s operation and regulation of the flows out of project facilities and into or within private farm ditches are the types of conduct that the discretionary function exception is designed to shield. In analyzing the second prong of the Berkovitz test, it is immaterial whether the agency actually balanced or considered the various policy considerations; the relevant question is whether the conduct is “susceptible to policy analysis.” Gaubert, 499 U.S. at 325 (“The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis”); GATX/Airlog Co. v. United States, 286 F.3d at 1174 (“The decision need not actually be grounded in policy considerations so long as it is, by its nature, susceptible to a policy analysis”). According to the Ninth Circuit, the government need show only that the action giving rise to the claim is of the type grounded in social, economic, or political policy; it need not “prove that it considered these factors and made a conscious decision on the basis of them.” Kennewick Irr. Dist., 880 F.2d at 1028. Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 8 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 9 If the challenged actions are susceptible to policy analysis, the government is immune from suit based on that action or omission—and federal courts lack subject matter jurisdiction— even if that action or omission constituted an abuse of discretion or was a wrong choice under the circumstances. See Sabow, 93 F.3d at 1451 (noting that if an exception applies, sovereign immunity is not waived, and the Court lacks subject matter jurisdiction); 28 U.S.C. § 2680(a). In this case, the operation of the FHIP project and private headgates involved decisions that are susceptible to consideration of many different and competing policy concerns. To regulate and control the private headgates and irrigation flows from the Park Lateral into these private farm ditches, as Plaintiff contends the FHIP should have done, the agency would have had to elevate Plaintiff’s interests above all other water users, deny other downstream water users their right to receive irrigation flows, reshuffle and/or unrealistically allocate FHIP resources, and assume the risk of causing crop losses to other farmers.4 These types of concerns are not only susceptible to policy analysis, but also presented the government with the nearly impossible task of trying to accommodate the competing interests of all farmers and water users served by the Park Lateral. Here, the government would have had to choose between: (1) continuing to make timely deliveries of irrigation water to downstream 4 See, e.g., ECF No. 16-11 (Ex. I, Bollinger Dep. at 104) (FHIP has discretion to deny access to water, but needs to take into account the needs of multiple users); ECF No. 16-8 (Ex. F, Broncho Dep. at 27, 128) (FHIP can neither regulate and monitor water usage 24 hours a day nor commit to fix issues with all private ditches); ECF No. 16-12 (Ex. J, Rodriguez Dep. at 82-84) (FHIP cannot deny access to one water user if it might cause another user’s crops to “burn up”); and ECF No. 16-15 (Ex. M, Buckskin Dep. at 59-60) (FHIP considers the needs of all water users and assists users on an ad hoc basis); ECF No. 13-6 at 19 (Bollinger Decl., Ex. 4) (“The [FHIP] includes 14 diversion dam structures, more than 50 deep wells, two major pumping plants, 107 miles of main canals, 11 miles of carriage canals, 220 miles of laterals, 25 miles of drains, 3,466 water control structures and several miles of buried pipelines.”). . Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 9 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 10 users whose ditches were properly maintained and/or whose ditches were not prone to failures; (2) exercising its discretion to close private headgates (which might unintentionally create the potential for upstream flooding and deny downstream water users of their irrigation water); (3) reducing, restricting, or shutting off deliveries from the Park Lateral on the dates in question (which might create a risk of causing crop losses to neighboring water users); and/or (4) completely closing the Park Lateral headgate (which could waste precious irrigation water and deny irrigation water to all water users off the park Lateral). Compare 25 C.F.R. § 171.210(b)(4) (which vests BIA with discretion to establish additional delivery points where doing so will not disrupt service of other customers). These types of choices are the very kind of policy-based decisions that are susceptible to discretionary function exception analysis. As such, they constitute conduct for which the United States is shielded from tort liability under 28 U.S.C. § 2680(a). Other courts have addressed agency conduct that is similar to that at issue in the instant case and have held that decisions concerning the regulation of flows and water levels are susceptible to policy analysis. In Olson v. United States, 93 F. Supp. 150 (D.N.D. 1950), a farmer brought suit, alleging that he had suffered damage to his property and livestock when his winter feeding ground was flooded after the flood gates of a dam were opened. The district court held that “[w]hen flood waters are to be released and how much water is to be released certainly calls for the exercise of judgment; in other words, the performance of a discretionary function.” Id. at 152. The Olson court explained its holding, reasoning that although releasing water when it was unnecessary and Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 10 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 11 improper may very well be an abuse of discretion, allowing a tort action to proceed based on such an abuse of discretion: would violate Congressional intent [and invite] a multitude of suits by persons who would disagree with the Government’s agents as to when and how much flood water should be released or retained . . . something the exception was intended to exclude. Id. at 153. In Spillway Marina, Inc. v. United States, 330 F. Supp. 611 (D. Kan. 1970), the owners of a marina brought suit based on the government’s decision to lower the water level at a reservoir in order to facilitate navigation on the Missouri River. Id. at 612. The court held that “[i]t would be difficult to conceive of any governmental activity more clearly discretionary than the decision of the defendant to lower [the reservoir] to aid navigation on the Missouri River.” Id. at 612. The court further stated: It is probable that persons using the Missouri River would not agree with the plaintiff as to the amount of water to be released. If the decision to raise or lower the water were not a discretionary function exempt under statute, the entire program of federal flood control and improvement of navigable waters would be hampered due to the Government’s inability to regulate the storage and flow of waters without being subjected to liability because it had an adverse effect on some individual. Id. at 613. Finally, in Sauders v. S.C., Pub. Serv. Auth., 856 F. Supp. 1066 (D.S.C. 1994), landowners brought suit against the operator of the Cooper River Rediversion Project, which in turn filed a third party action against the United States for contribution and indemnity. The landowners alleged that the operators negligently released “excessive flows” into the Santee River, exceeding its banks and causing flood events in multiple years. Id. at 1069. The district court held that the decision by the United States as to “whether or not to allow greater flows Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 11 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 12 through the Rediversionary canals” is a discretionary act that is shielded from liability by the discretionary function exception. Id. at 1071. Under the reasoning of the cases cited above, the operation and management of the FHIP project and private headgates involved conduct and decisions that are susceptible to consideration of many different and competing policy concerns. Plaintiff faults the government for not striking the right balance between the objectives of providing timely, continuous and dependable irrigation flows to downstream users; controlling or “disciplining” water users who failed to properly operate and maintain their private farm ditches or private headgates; allocating scarce project resources, and preventing the flooding of adjacent parcels. Striking the right balance between these concerns was “a decision the [agency] is uniquely qualified to make, and is protected by the discretionary function exception.” In re Ohio River Disaster Litig., 862 F.2d 1237, 1248 (6th Cir. 1988). III. CONCLUSION Under the pleadings, Court record, and the cases cited above, this Court lacks subject matter jurisdiction over Plaintiff’s tort claims. Accordingly, this action must be dismissed in its entirety pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 2680(a). Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 12 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 13 Respectfully submitted this 28th day of April, 2017. RAFAEL M. GONZALEZ, JR. ACTING UNITED STATES ATTORNEY By: /s/ Nicholas J. Woychick NICHOLAS J. WOYCHICK Assistant United States Attorney Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 13 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 28, 2017, the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION was electronically filed with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following person(s): Joel A. Beck joel@idaholaw.us /s/ Danielle Narkin Legal Administrative Specialist Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 14 of 14