Rodgers et al v. Mammoth Cave National Park et al

MOTION to Dismiss for Lack of Jurisdiction

W.D. Ky.November 9, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION SANDRA RODGERS, as Administratrix : of the Estate of Michelle A. Meredith; : Case 1:16-cv-00022-GNS RONALD MEREDITH, as Administrator : of the Estate of Donald R. Meredith, : : Plaintiffs, : : v. : : MAMMOTH CAVE NATIONAL PARK; : UNITED STATES OF AMERICA, : : Defendants. : : MOTION TO DIMISS BY DEFENDANTS MAMMOTH CAVE NATIONAL PARK AND THE UNITED STATES OF AMERICA On March 3, 2015, Michelle A. Meredith and Donald R. Meredith were traveling in a van that drove off the Green River Ferry and into the Green River. These two wrongful death claims arise from that unfortunate occurrence. Plaintiffs Sandra Rodgers and Ronald Meredith assert that jurisdiction exists “under 28 U.S.C. § 1333(1) (admiralty or maritime jurisdiction) because the claims against the Defendants arise from traditional maritime activities and the United States has waived its sovereign immunity for such claims under 46 U.S.C § 30903(a) and 46 U.S.C. § 31102(a).” Plaintiffs’ Complaint, ¶ 6 (Document 1). Pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure, Defendants Mammoth Cave National Park and the United States respectfully move to Case 1:16-cv-00022-GNS-HBB Document 12 Filed 11/09/16 Page 1 of 4 PageID #: 55 2 dismiss Plaintiffs’ Complaint for lack of subject-matter jurisdiction. The Green River is not, and was not on the date of the accident, a navigable waterway for the purpose of establishing admiralty jurisdiction at the site of the accident. Therefore, this Court does not have admiralty or maritime jurisdiction under 28 U.S.C. § 1333(1), and the limited waivers of sovereign immunity contained in the Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918, and Public Vessels Act, 46 U.S.C. §§ 31101-31113, do not apply to this case. Accordingly, Plaintiffs’ Complaint should be dismissed without prejudice. A Memorandum of Law and two declarations are submitted in support of this Motion. Dated: November 9, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOHN E. KUHUR, JR. United States Attorney Case 1:16-cv-00022-GNS-HBB Document 12 Filed 11/09/16 Page 2 of 4 PageID #: 56 3 /s/ James C. Wilson JAMES C. WILSON Senior Trial Counsel MALINDA R. LAWRENCE Trial Attorney U.S. Department of Justice Civil Division, Torts Branch P.O. Box 14271 Washington, DC 20044-4271 Telephone: 202-616-4107 Telephone: 202-307-0033 Facsimile: 202-616-4002 Email: james.wilson3@usdoj.gov Email: malinda.r.lawrence@usdoj.gov Attorneys for Defendants Case 1:16-cv-00022-GNS-HBB Document 12 Filed 11/09/16 Page 3 of 4 PageID #: 57 4 CERTIFICATE OF SERVICE On November 9, 2016, I electronically filed this document through the ECF system, which will send a notice of electronic filing to: Jonathan Matthews, B. Todd Thompson, Esq., Chad O. Propst, Esq., Brian Brownfield, Esq., and Scott C. Cox, Esq. s/ James C. Wilson JAMES C. WILSON Senior Trial Counsel U.S. Department of Justice Civil Division, Torts Branch P.O. Box 14271 Washington, DC 20044-4271 Telephone: 202-616-4107 Facsimile: 202-616-4002 Email: james.wilson3@usdoj.gov Case 1:16-cv-00022-GNS-HBB Document 12 Filed 11/09/16 Page 4 of 4 PageID #: 58 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION SANDRA RODGERS, as Administratrix : of the Estate of Michelle A. Meredith; : Case 1:16-cv-00022-GNS RONALD MEREDITH, as Administrator : of the Estate of Donald R. Meredith, : : Plaintiffs, : : v. : : MAMMOTH CAVE NATIONAL PARK; : UNITED STATES OF AMERICA, : : Defendants. : : MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO DIMISS BY DEFENDANTS MAMMOTH CAVE NATIONAL PARK AND THE UNITED STATES OF AMERICA INTRODUCTION On March 3, 2015, Michelle A. Meredith and Donald R. Meredith were the sole occupants of a van which drove onto, and then off of, the Green River Ferry into the Green River. The Merediths were found deceased in their vehicle upon its recovery from the Green River. On March 2, 2016, their adult children and executors of their estates, Plaintiffs Sandra Rodgers and Ronald Meredith, filed this wrongful death action against Defendants Mammoth Cave National Park and the United States. Plaintiffs’ Complaint (Document 1). They assert that admiralty or maritime jurisdiction exists under 28 U.S.C. § 1333(1) “because the claims against the Defendants arise from traditional maritime activities and the United States has waived its sovereign immunity for such claims under Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 1 of 14 PageID #: 59 2 46 U.S.C § 30903(a) and 46 U.S.C. § 31102(a).” Plaintiffs’ Complaint, ¶ 6 (Document 1). As will be shown, the Green River is not, and on the day of the accident was not, a navigable waterway for the purpose of establishing admiralty jurisdiction at the location of the accident. Therefore, there is no admiralty jurisdiction under 28 U.S.C. § 1333(1), and the limited waivers of sovereign immunity contained in the Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918, and Public Vessels Act, 46 U.S.C. §§ 31101-31113, do not apply to this case. Accordingly, the United States respectfully moves to dismiss Plaintiffs’ Complaint for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1) and 12(h)(3). STATEMENT OF JURISDICTIONAL FACTS The declarations submitted in support of this Motion establish the following jurisdictional facts. 1. The Green River is a tributary of the Ohio River. Exhibit 1, Declaration of Eugene A. Dowell (Dowell Declaration), ¶ 2. 2. The Green River originates in Lincoln County, Kentucky, and terminates in the Ohio River near Henderson, Kentucky. Exhibit 1 (Dowell Declaration), ¶ 3. 3. Green River Locks and Dams 6, 5, 4, 3, 2, and 1 are located on the Green River. Green River Locks 6, 5, 4, and 3 have not been in use for many years. Green River Locks and Dams 1 and 2 are still in use. Exhibit 1 (Dowell Declaration), ¶ 4. Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 2 of 14 PageID #: 60 3 4. Green River Locks and Dams 6, 5, 4, 3, 2, and 1 were primarily constructed to facilitate travel on the Green River by vessels engaged in commerce, including barges and towboats. When normal water conditions existed on the Green River, commercial vessels used these locks to step upstream and downstream. When Green River Locks 6, 5, 4, and 3 were operational, noncommercial vessels were also permitted to use these facilities, and noncommercial vessels are currently permitted to use Green River Locks 1 and 2. Exhibit 1 (Dowell Declaration), ¶ 6. 5. When normal water conditions existed on the Green River, commercial vessels would not pass over the top of Green River Dam 6, 5, 4, 3, 2, or 1, and that would not be a safe practice. When the water level on the Green River was too high to use Green River Lock 6, 5, 4, 3, 2 or 1, Green River Dams 6, 5, 4, 3, 2 and 1 were designed to allow commercial vessels to pass over the top of them. Exhibit 1 (Dowell Declaration), ¶¶ 7 and 8. 6. After the use of a lock on the Green River was discontinued, it was impractical for commercial vessels to use the Green River for commerce if the vessel would have been required to pass over the dam at the location of the decommissioned lock because of the limited high water conditions under which that could have occurred. Exhibit 1 (Dowell Declaration), ¶ 10. 7. The Green River Ferry is located on the Green River in Mammoth Cave National Park. Green River Lock and Dam 6 is downriver from the Green River Ferry, a short distance outside of Mammoth Cave National Park. The lock at that location has not Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 3 of 14 PageID #: 61 4 been in use for a number of years.1 Declaration of Bruce Powell Exhibit 2 (Powell Declaration), ¶¶ 2 and 3. 8. The Green River in Mammoth Cave National Park is used recreationally for kayaking, canoeing, boating, and fishing. Kayaks and canoes may be personally owned or can be rented from commercial outfitters outside the Park. When normal water conditions exist on the Green River, recreational kayaks, canoes, and boats do not pass over the top of Green River Dam 6, regardless of whether water is or is not flowing over the top of the Dam, and that would not be a safe practice. A brochure published for the National Park Service and made available to the public in 2015 and currently provides the following information on a map of Mammoth Cave National Park contained in the brochure: “Lock and Dam 6 must portage (dangerous and hazardous).” Exhibit 2 (Powell Declaration), ¶¶ 4 and 5. 9. The Green River originates in Kentucky upstream from Green River Lock and Dam 6. It is not possible, and was not possible on March 3, 2015, to travel from Kentucky into another state by traveling on the water upstream from Green River Lock and Dam 6. The Green River upstream from Green River Lock and Dam 6 does not connect to any other body of water that would permit travel on the water into another state. Also, a large lockless dam at the Green River Lake located near Campbellsville, Kentucky prevents travel on the water upstream from that location, and a large lockless 1 Green River Locks and Dams 5, 4, 3, 2, and 1 are located downriver from Green River Lock and Dam 5. See mileage information, Exhibit 2 (Powell Declaration), ¶ 4. Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 4 of 14 PageID #: 62 5 dam at the Nolin River Lake located near Bee Spring, Kentucky prevents travel on the water upstream from that location. Exhibit 2 (Powell Declaration), ¶ 6. ARGUMENT I. Standard of Review A defense asserting the lack of subject-matter jurisdiction may be made by motion. Fed. R. Civ. P. 12(b)(1). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). The Sixth Circuit Court of Appeals has adopted two standards for resolving motions to dismiss for lack of subject-matter jurisdiction under Rule12(b)(1), depending on whether the challenge to the complaint is facial or factual. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial attack on subject-matter jurisdiction questions the sufficiency of the pleadings. A trial court, in that situation, “takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.” Id. When a court reviews a complaint under a factual attack, however, “no presumptive truthfulness applies to the factual allegations.” Id. Rather, the court must weigh the conflicting evidence to determine whether subject- matter jurisdiction exists. Id. In such a case, the court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts. Id. “[W]hen jurisdictional facts are challenged, the party claiming jurisdiction bears the burden of demonstrating that the court has jurisdiction over the subject matter.” Id. at 324. See also Rogers v. Stratton Industries, Inc., 798 F.2d 913, Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 5 of 14 PageID #: 63 6 915 (6th Cir. 1986) (where subject-matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion, the court is empowered to resolve factual disputes, and the parties may supplement the record by affidavits and this supplementation does not convert the motion into a Rule 56 summary judgment motion). In this case, Defendants challenge the factual basis for subject-matter jurisdiction; that is, the navigability of the Green River at the accident site, which is essential to Plaintiffs’ assertion of admiralty jurisdiction. Therefore, this Court may properly consider facts outside the Complaint to determine whether Plaintiffs’ claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3). II. This Court Lacks Subject-Matter Jurisdiction Because the Green River Is Not a Navigable Waterway at the Location of the Accident. Federal district courts have original jurisdiction of “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333. A party invoking admiralty jurisdiction must satisfy both a location test and a connection test. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). The location test requires that the alleged tort occur on navigable water. Id. The connection test has two prongs. First, the accident must have “a potentially disruptive impact on maritime commerce.” Id. (quoting Sisson v. Ruby, 497 U.S. 358, 363 (1990)). Second, the activity giving rise to the Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 6 of 14 PageID #: 64 7 accident must bear a “substantial relationship to traditional maritime activity.” Id. (quoting Sisson, 487 U.S. at 365). In The Daniel Ball, 77 U.S. 557, 563 (1870), the Supreme Court established the following test to determine whether waters are navigable for purposes of admiralty jurisdiction: Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. Under this test, the waters must be navigable in fact, which means “they must be used or capable of being used for the ‘customary modes of trade and travel on water.’” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, § 3-3, at 126 (5th ed.). Id. at 126. To meet this requirement, “proof of present or potential commercial shipping” must be presented. Id. at 126-127 (emphasis in original). “[R]ecreational boating, fishing, and water skiing alone will not be sufficient.” Id. at 127 (emphasis in original). An interstate nexus also necessary. Id. at 125. “[T]he waterbody in question must be available as a continuous highway for commerce between ports and places in different states (or between a state and a foreign country).” Id. A body of water “that is wholly within the confines of one state and is not susceptible of being used as an interstate artery of Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 7 of 14 PageID #: 65 8 commerce, either because of a lockless dam downstream or because of natural conditions (the narrowness of feeder and outlet streams), is not navigable waters for purposes of admiralty jurisdiction.” Id. These issues were addressed in LeBlanc v. Cleveland, 198 F.3d 353 (2d Cir. 1999), where the Second Circuit analyzed admiralty tort jurisdiction under the Daniel Ball test. Plaintiffs had filed a personal injury action that arose from a collision between a kayak and a recreational motorboat on the Hudson River. Id. at 355. Admiralty jurisdiction was alleged. Id. The district court dismissed plaintiffs’ complaint, finding that, although the Hudson River ultimately permitted passage to the open sea, the river was not navigable for purposes of admiralty jurisdiction where the accident occurred because of downstream rapids, dams, and waterfalls. Id. On appeal, plaintiffs asserted that navigability under the Daniel Ball test should be determined based on a river’s historic, unimproved state, rather than its present, improved state. The Second Circuit rejected this argument, holding that “nothing in The Daniel Ball indicates that an historically navigable river remains navigable for admiralty jurisdiction purposes when it is made impassable by an artificial obstruction.” Id. at 357. In support of this holding, the court, citing United States v. Appalachian Electric Power Co., 311 U.S. 377, 407 (1940), stated that “ordinary condition” as used in The Daniel Ball did not refer to the “to the absence of human interference with the course of the river, but “‘to volume of water, the gradients and the regularity of the flow’” of the waterway. Id. Therefore, “an otherwise unnavigable river may not be rendered Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 8 of 14 PageID #: 66 9 navigable simply because, in extraordinary conditions, its waters rise high enough to support forms of transportation normally impossible.” Id. The court explained that “[t]he definition of navigable waters in one context does not necessarily apply in another.” Id. at 358.2 Regarding federal admiralty jurisdiction, a waterway “is navigable for jurisdictional purposes if it is presently used, or is presently capable of being used, as an interstate highway for commercial trade or travel in the customary modes of travel on water. Natural and artificial obstructions that effectively prohibit such commerce defeat admiralty jurisdiction.” Id. at 359. The court concluded that the Hudson River was not a navigable waterway for purposes admiralty jurisdiction where the alleged tort occurred. Id. at 360. In affirming the district court’s ruling dismissing the case, the Second Circuit noted that plaintiffs did not challenge the lower court’s findings regarding navigability, and stated that “[n]avigability requires that the body of water be capable of supporting commercial 2 The court found that plaintiffs’ reliance on The Montello, 87 U.S. 430 (1874) was misplaced because that case “defined navigable waters for the purpose of delimiting Congress’s power to regulate under the Commerce Clause.” Id. at 358. See also Alford v. Appalachian Power Co., 951 F.2d 30, 33 (4th Cir. 1991) (distinguishing Commerce Clause jurisprudence from tort jurisdiction jurisprudence); Adams v. Montana Power Co., 528 F.2d 437, 440 (9th Cir. 1975) (“The definitions of navigability may vary because, as in the present case, the purposes served by the commerce clause and admiralty jurisdiction may vary.”); 1 Schoenbaum, Admiralty and Maritime Law, § 3-3 at 128 (5th ed.) (Navigability for purposes of federal navigational servitude is a much broader concept than admiralty navigability.”). The definition of navigability varies not only as between admiralty tort jurisdiction and authority to regulate under the Commerce Clause, but also in applying statutes such as the Clean Water Act and the Rivers and Harbors Act. See, e.g., Rapanos v. United States, 547 U.S. 715, 722-24 (2006); Lykes Bros., Inc. v. U.S. Army Corps of Engineers, 64 F.3d 630, 634 (11th Cir. 1995). Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 9 of 14 PageID #: 67 10 maritime activity. It is irrelevant that the body of water is capable of supporting non- commercial maritime activity. Id. at 360 (emphasis in original).3 In Alford v. Appalachian Power Co., 951 F.2d 30, 34 (4th Cir. 1991), the Fourth Circuit held that admiralty jurisdiction did not exist in a tort action arising from boating accident which occurred on Smith Mountain Lake, a dammed, lockless lake lying wholly in one state. In support of its ruling, the court found that “[a]s a body of water by itself, it cannot act as a highway of commerce between two states or with foreign countries. Nor can it, because of its present configuration, become a part of such a highway by uniting with other waterways between the states or with foreign countries.” Id. at 33. The court also stated that admiralty jurisdiction “extends only to waterways that bear commercial shipping.” See also Chapman v. United States, 575 F.2d 147 (7th Cir. 1978); Adams v. Montana Power Co., 528 F.2d 437 (9th Cir. 1975). 3 In PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012), the Supreme Court considered the issue of navigability in the context of a dispute between power companies and the State of Montana regarding the ownership of certain riverbeds under the equal-footing doctrine. Under that doctrine, “[u]pon statehood, the State gains title within its borders to the beds of waters then navigable, . . .;” however, “[t]he United States retains any title vested in it before statehood to any land beneath waters not then navigable . . . .” Id. at 1227-28. The Montana Supreme Court held that the riverbeds in dispute were owned by the State. The Supreme Court reversed, holding: “The primary flaw in the reasoning of the Montana Supreme Court lies in its treatment of the question of river segments and overland portage. To determine title to a riverbed under the equal- footing doctrine, this Court considers the river on a segment-by-segment basis to assess whether the segment of the river, under which the riverbed in dispute lies, is navigable or not.” Id. at 1229. Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 10 of 14 PageID #: 68 11 In Finneseth v. Carter, 712 F.2d 1041 (6th Cir. 1983), plaintiff sought damages following a collision between two pleasure craft on Dale Hollow Lake which caused the death of her husband and son. The district court dismissed that portion of the complaint which asserted admiralty jurisdiction, finding “the lake to be non-navigable because it is not currently being used as an artery of commerce.” Id. at 1043. The Sixth Circuit reversed, holding that the lake could “be an interstate highway for commerce because it straddles Kentucky and Tennessee.” Id. at 1044 (emphasis in the original). The court also concluded that Dale Hollow Lake met “the requirement that it be used or capable or susceptible of being used for any trade or travel that is or may be conducted in the customary modes of trade or travel on water.” Id. at 1044-45.4 The jurisdictional facts stated above at 2 through 5, and the Declarations of Eugene A. Dowell (Exhibit 1) and Bruce Powell (Exhibit 2), establish that the Green River is not and was not on the day of the accident, a navigable waterway for purposes of assessing admiralty jurisdiction at the location of the accident. After Green River Lock 6 was decommissioned in 1951, the Green River at the accident site was no longer capable of being used in its ordinary condition as an interstate highway for commerce, over which trade and travel could or may be “conducted in the customary modes of trade and travel 4 In reversing, the Sixth Circuit also stated that “[n]o Supreme Court case imposes the requirement that navigability only exists, for purposes of admiralty jurisdiction, if the lake or river is currently or presently being used as a highway for interstate commerce.” Finneseth, 712 F.2d at 1045. Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 11 of 14 PageID #: 69 12 on water.” The Daniel Ball, 77 U.S. at 563. Therefore, federal admiralty jurisdiction does not exist in this case.5 CONCLUSION For the reasons stated, Defendants respectfully request that Plaintiffs’ Complaint be dismissed, without prejudice, for lack of subject-matter jurisdiction. Dated: November 9, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOHN E. KUHN, JR. United States Attorney 5 Subject to certain exceptions, an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), 2671-2680, cannot be maintained until claimants have exhausted their administrative remedies. McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”); Lundstrum v. Lyng, 954 F. 2d 1142, 1145 (6th Cir. 1990) (“A prerequisite to suit under the FTCA, however, is exhaustion by the plaintiff of administrative remedies. 28 U.S.C. § 2675(a).”). Plaintiffs did submit administrative claims, which were received by the agency on June 1, 2016. This action, however, must be dismissed for the reasons stated, leaving Plaintiffs the option of filing a new action after the administrative process has been completed in accordance with 28 U.S.C. § 2675. Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 12 of 14 PageID #: 70 13 s/ James C. Wilson JAMES C. WILSON Senior Trial Counsel MALINDA R. LAWRENCE Trial Attorney U.S. Department of Justice Civil Division, Torts Branch P.O. Box 14271 Washington, DC 20044-4271 Telephone: 202-616-4107 Telephone: 202-307-0033 Facsimile: 202-616-4002 Email: james.wilson3@usdoj.gov Email: malinda.r.lawrence@usdoj.gov Attorneys for Defendants Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 13 of 14 PageID #: 71 14 CERTIFICATE OF SERVICE On November 9, 2016, I electronically filed this document through the ECF system, which will send a notice of electronic filing to: B. Todd Thompson, Esq., Chad O. Propst, Esq., Jonathan H. Matthews, Esq., Brian Brownfield, Esq., and Scott C. Cox, Esq. s/ James C. Wilson JAMES C. WILSON Senior Trial Counsel U.S. Department of Justice Civil Division, Torts Branch P.O. Box 14271 Washington, DC 20044-4271 Telephone: 202-616-4107 Facsimile: 202-616-4002 Email: james.wilson3@usdoj.gov Attorney for Defendants Case 1:16-cv-00022-GNS-HBB Document 12-1 Filed 11/09/16 Page 14 of 14 PageID #: 72 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION SANDRA RODGERS, as Administratrix : of the Estate of Michelle A. Meredith; : Case 1:16-cv-00022-GNS RONALD MEREDITH, as Administrator : of the Estate of Donald R. Meredith, : : Plaintiffs, : : v. : : MAMMOTH CAVE NATIONAL PARK; : UNITED STATES OF AMERICA, : : Defendants. : : MOTION TO DIMISS BY DEFENDANTS MAMMOTH CAVE NATIONAL PARK AND THE UNITED STATES OF AMERICA EXHIBIT 1 DECLARATION OF EUGENE A. DOWELL Case 1:16-cv-00022-GNS-HBB Document 12-2 Filed 11/09/16 Page 1 of 4 PageID #: 73 Case 1:16-cv-00022-GNS-HBB Document 12-2 Filed 11/09/16 Page 2 of 4 PageID #: 74 Case 1:16-cv-00022-GNS-HBB Document 12-2 Filed 11/09/16 Page 3 of 4 PageID #: 75 Case 1:16-cv-00022-GNS-HBB Document 12-2 Filed 11/09/16 Page 4 of 4 PageID #: 76 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION SANDRA RODGERS, as Administratrix : of the Estate of Michelle A. Meredith; : Case 1:16-cv-00022-GNS RONALD MEREDITH, as Administrator : of the Estate of Donald R. Meredith, : : Plaintiffs, : : v. : : MAMMOTH CAVE NATIONAL PARK; : UNITED STATES OF AMERICA, : : Defendants. : : MOTION TO DIMISS BY DEFENDANTS MAMMOTH CAVE NATIONAL PARK AND THE UNITED STATES OF AMERICA EXHIBIT 2 DECLARATION OF BRUCE POWELL Case 1:16-cv-00022-GNS-HBB Document 12-3 Filed 11/09/16 Page 1 of 4 PageID #: 77 Case 1:16-cv-00022-GNS-HBB Document 12-3 Filed 11/09/16 Page 2 of 4 PageID #: 78 Case 1:16-cv-00022-GNS-HBB Document 12-3 Filed 11/09/16 Page 3 of 4 PageID #: 79 Case 1:16-cv-00022-GNS-HBB Document 12-3 Filed 11/09/16 Page 4 of 4 PageID #: 80 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION SANDRA RODGERS, as Administratrix : of the Estate of Michelle A. Meredith; : Case 1:16-cv-00022-GNS RONALD MEREDITH, as Administrator : of the Estate of Donald R. Meredith, : : Plaintiffs, : : v. : : MAMMOTH CAVE NATIONAL PARK; : UNITED STATES OF AMERICA, : : Defendants. : : ORDER ON MOTION TO DIMISS BY DEFENDANTS MAMMOTH CAVE NATIONAL PARK AND THE UNITED STATES OF AMERICA For the reasons set forth in Defendants’ Motion to Dismiss, the Motion is granted. Plaintiffs’ Complaint is dismissed without prejudice. SO ORDERED this _____ day of __________________, 201__. _________________________________ GREG N. STIVERS UNITED STATES DISTRICT JUDGE Copies to: Counsel of Record Case 1:16-cv-00022-GNS-HBB Document 12-4 Filed 11/09/16 Page 1 of 1 PageID #: 81