Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Catherine C De Baca v. United States

United States District Court, D. New Mexico

June 13, 2019

CATHERINE C DE BACA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants. GARY CIANCHETTI, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. GERALD OHLSEN; JANET YOUNGBERG; JAMES FARRINGTON; TONY and CARYN DEROCHIE; WILLIAM and DONNA MCCLELLAN; NANCY HIGGINS; VERNON and BINDA COBB; CHRISTINE WOOD; MARK THOMPSON; DONALD GILES and BONNIE LONG; THOMAS and DIANE BRAGG; ERNEST and FRIEDA VIGIL; BRAD WOSICK; JOHNNY and DEANNE LUNA; MARLENE BARBER; MICHAEL MCDANIEL and PAULA WILTGEN, and MARTIN VALENCIA, Plaintiffs,
v.
UNITED STATES, and DOES 1-10, Defendants. STATE FARM FIRE & CASUALTY CO., and SAFECO INSURANCE COMPANY OF AMERICA, Plaintiffs,
v.
UNITED STATES, and DOES 1-10, Defendants. DAVID LLOYD SAIS; LUCILLE SAIS; TOMAS APODACA, and CHRISTINE APODACA, Plaintiffs,
v.
UNITED STATES OF AMERICA, and DOES 1-10, Defendants. HOMESITE INDEMNITY COMPANY a/s/o DON GILES and BONNIE LONG, Plaintiff,
v.
UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; NATURAL RESOURCES CONSERVATION SERVICE, and BUREAU OF INDIAN AFFAIRS, Defendants.

          A. Blair Dunn Dori Ellen Richards Western Agriculture Resource and Business Advocates, LLP Albuquerque, New Mexico Attorneys for Plaintiffs Catherine C De Baca, Gary Cianchetti, David Lloyd Sais, Lucille Sais, Thomas Apodaca, Christine Apodaca

          Thomas L. Tosdal Tosdal Law Firm Solana Beach, California -and- Mark Dow Mary Louise Boelcke Bauman Dow & Stambaugh, P.C. Albuquerque, New Mexico Attorneys for Plaintiffs Gerald Ohlsen, Janet Youngberg, James Farrington, Thomas Derochie, Caryn DeRochie, William McClellan, Donna McClellan, Nancy Higgins, Vernon Cobb, Binda Cobb, Christine Wood, Mark Thompson, Donald Giles, Bonnie Long, Thomas Bragg, Diane Bragg, Ernest Vigil, Frieda Vigil, Brad Wosick, Johnny Luna, Deanne Luna, Marlene Barber, Michael McDaniel, Paula Wilten, Martin Valencia, Vested Interest, LLC, Janice Farrington, Ken Kugler, Debbie Kugler, David Lee, Diana Lee, Joseph Lee, Alicia Lee, Ed Mortensen, Katherine Mortensen, David Coulter, Matt Urban, Marie Urban, and Olympia Salas

          Mark Grotefeld Kevin Scott Mosley Anooj Manu Thakrar Cristina Gonzalez Grotefeld Hoffmann Austin, Texas Attorneys for Plaintiffs State Farm Fire and Casualty Co., Safeco Insurance Company of America, and Allstate Insurance Company

          Vladislav Kushnir VB Kushnir, LLC Trevose, Pennsylvania Attorney for Plaintiff Homesite Indemnity Company

          John C. Anderson United States Attorney Roberto D. Ortega Ruth Fuess Keegan Christopher F. Jeu Cassandra C. Currie Assistant United States Attorneys United States Attorneys Office Albuquerque, New Mexico Attorneys for Defendants United States of America, United States Department of Agriculture, United States Forest Service, Natural Resources Conservation Service, Bureau of Indian Affairs, and FNU Does

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the United States of America's Motion to Dismiss Claims for Lack of Subject Matter Jurisdiction or in the Alternative for Partial Summary Judgment, and Memorandums in Support, filed November 2, 2018 (Doc. 60)(“Independent Contractor Motion”); (ii) the United States of America's Motion to Dismiss Ohlsen Plaintiffs'[1]

         Second Amended Complaint Due to Lack of Subject Matter Jurisdiction, filed November 2, 2018 (Doc. 62)(“Ohlsen Motion”); (iii) the Reply in Support of the United States of America's Motion to Dismiss Ohlsen Plaintiffs' Second Amended Complaint Due to Lack of Subject Matter Jurisdiction (Doc. 62)(“Ohlsen Reply”); (iv) the United States of America's Motion to Dismiss Plaintiff Catherine C De Baca's Amended Complaint and Gary Cianchetti's Complaint Due to Lack of Subject Matter Jurisdiction, filed November 5, 2018 (Doc. 64)(“C De Baca Motion”); (v) the United States of America's Motion to Dismiss Plaintiffs Sais, Apodaca and Sorroche's Amended Complaint Due to Lack of Subject Matter Jurisdiction, filed November 15, 2018 (Doc. 80)(“Sais Motion”); (vi) the Ohlsen Plaintiffs' Objections to Evidence Submitted by the United States in Support of Its Motion to Dismiss or for Summary Judgment, filed December 20, 2018 (Doc. 102)(“First Objections”); (vii) the Ohlsen Plaintiffs' Objections to Third Declaration of Ian Fox, filed March 5, 2019 (Doc. 134)(“Fox Objections”); (viii) the Ohlsen Plaintiffs' Motion to Strike Portions of Third Declaration of Ian Fox [Doc. 125] or, Alternatively, Motion for Leave to file Surreply, filed March 5, 2019 (Doc. 135)(“Motion to Strike”); (ix) the Ohlsen Plaintiffs' Reply to Defendant's Response to Plaintiffs' Motion to Strike Portions of Third Declaration of Ian Fox [Doc. 125] or, Alternatively, Motion for Leave to File Surreply, filed April 23, 2019 (Doc. 171)(“Motion to Strike Reply”); and (x) the Defendants' Motion for Leave to File Supplemental Brief, filed May 8, 2019 (Doc. 179)(“Supplemental Briefing Motion”).[2] The Court held hearings on March 8, 2018, see Clerk's Minutes at 1, filed March 8, 2019 (Doc. 146), and on June 3, 2019, see Clerk's Minutes at 1, filed June 3, 2019 (Doc. 204). The primary issues are: (i) whether the Pueblo of Isleta, in thinning[3] Treatment Unit 4[4] (“Unit 4”) within the Cibola National Forest[5] pursuant to the Participating Agreement Between Isleta Pueblo and the USDA [(United States Department of Agriculture)], Forest Service[6] Cibola National Forest and Grasslands, filed November 2, 2018 (Doc. 60-2)(“Participating Agreement”), was a federal employee for the purposes of the Federal Tort Claims Act, 28 U.S.C. §§ 1291, 1346, 1402, 2401-02, 2411-12, 2671-80 (“FTCA”);[7] (ii) whether the Ohlsen Plaintiffs can sustain a res ipsa loquitur[8]claim against Defendant United States of America based on allegations that the Dog Head Fire started while the thinning crew was masticating[9] Unit 4; (iii) whether the Ohlsen Plaintiffs can sustain a non-delegable duty claim against the United States; (iv) whether the Ohlsen Plaintiffs exhausted their administrative remedies[10] for their claim that the United States Forest Service and the thinning crew workers “failed to and were not in the position to suppress the fire at the time of ignition, ” Plaintiffs' Claims at 1 (given to the Court at the March 8, 2019, hearing), filed May 31, 2019 (Doc. 202)(“Ohlsen Plaintiffs' Claim List”), for their claims against the United States based on the thinning crew workers' actions, and for their claim that the Forest Service negligently failed to have a fire engine at the thinning site with the masticator; (v) whether the discretionary function exception[11] divests the Court of subject-matter jurisdiction over the Ohlsen Plaintiffs' claims[12]; (vi) whether Plaintiffs Catherine C De Baca and Gary Cianchetti exhausted the administrative remedies for their claims of the Forest Service's “purported failure to ensure that the equipment used in the forest thinning project was in good order and the proper equipment for the terrain; failure to provide proper fire extinguishment tools; and failure to manage the undergrowth of the forest area where the fire occurred, ” C De Baca Motion at 1; (vii) whether the discretionary function exception divests the Court of subject-matter jurisdiction over C De Baca's and Cianchetti's claims based on the Forest Service's failure “to allow first responders to put out the initial fire, ” C De Baca Motion at 9; (viii) whether Plaintiffs David Sais, Lucille Sais, Tomás Apodaca, Christine Apodaca, and Jeff Sorroche (the “Sais Plaintiffs”) exhausted their administrative remedies for the same claims as those claims listed in item (vi), and for their claims that the Forest Service “was negligent in leaving slash and boles produced by forest thinning operations on the ground where the fire started; conducting forest thinning operations under unreasonable conditions; failing to employ competent individuals to perform the work; and failing to train, instruct, direct, or supervise the Pueblo crews, ” Sais Motion at 11-12; (ix) whether the discretionary function exception divests the Court of subject-matter jurisdiction over all the Sais Plaintiffs' claims listed in item (viii) and over their claim that the Forest Service did not permit initial responders to fight the Dog Head Fire; (x) whether, as the Court applies against Plaintiffs State Farm Fire & Casualty Company, Safeco Insurance Company of America and Allstate Insurance Company (the “State Farm Plaintiffs”) and Plaintiff Homesite Indemnity Company all the United States' arguments against the other Plaintiffs and adopts for the State Farm Plaintiffs and Homesite Indemnity all other Plaintiffs' responses, see Transcript of Excerpt of Hearing at 117:1-15 (taken March 8, 2019)(Ortega, Court), filed May 31, 2019 (Doc. 199)(“March 8 P.M. Tr.”);[13] id. at 118:2-8 (Tosdal), the Court should dismiss the State Farm Plaintiffs' res ipsa loquitur claim and non-delegable duty claim, and whether the discretionary function exception divests the Court of subject-matter jurisdiction over the State Farm Plaintiffs' and Homesite Indemnity's claims; (xi) whether the Court should strike or disregard portions of the First Declaration of Ian Fox, Natural Resource Staff Officer, Cibola National Forest and National Grasslands (dated October 31, 2018), filed November 2, 2018 (Doc. 60-1)(“First Fox Decl.”), Third Declaration of Ian Fox (dated February 27, 2019), filed February 28, 2019 (Doc. 125)(“Third Fox Decl.”), and Videotaped Deposition of Everette Jaramillo (dated September 26, 2018), filed November 9, 2018 (Doc. 76-5)(“Jaramillo Depo. 76-5”), per the Ohlsen Plaintiffs' requests in the First Objections, the Fox Objections, the Motion to Strike, and the Motion to Strike Reply; (xii) whether the Court should grant the Ohlsen Plaintiffs leave to file a surreply addressing the Third Fox Decl.; and (xiii) whether the Court should grant the United States leave to file supplemental briefing on the question whether the Cooperative Funds and Deposits Act, 16 U.S.C. § 565a (“CFDA”), provides an independent waiver of the United States' sovereign immunity. The Court grants the Independent Contractor Motion, the Ohlsen Motion, the C De Baca Motion, the Sais Motion, the Motion to Strike, and the Supplemental Briefing Motion, and sustains in part and overrules in part the Ohlsen Plaintiffs' Objections in the First Objections, the Fox Objections, the Motion to Strike, and the Motion to Strike Reply.[14] The Court concludes that no genuine dispute of material fact exists whether Isleta Pueblo was an independent contractor. The Court also concludes that no genuine dispute of material fact exists whether the discretionary function exception bars all the Plaintiffs' claims. The Court concludes that the Ohlsen Plaintiffs properly exhausted their claim based on Isleta Pueblo's fire suppression activities and their claim based on the Forest Service's failure to have a fire engine accompany the masticator. The Ohlsen Plaintiffs did not, however, exhaust their claim that the Forest Service failed to suppress the Dog Head Fire or their claims, other than the claim about Isleta Pueblo's fire suppression activities, based on the United States' liability for Isleta Pueblo's actions. The Court concludes that C De Baca, Cianchetti, and the Sais Plaintiffs exhausted only their claim that the Forest Service and Isleta Pueblo failed to ensure that the equipment for thinning Unit 4 was in good working order and the proper equipment for the terrain. As the Ohlsen Plaintiffs consented to dismiss their res ipsa loquitur claim and non-delegable duty claim, the Court dismisses those claims. See Draft Transcript of Hearing at 13:25-14:5 (taken March 8, 2019)(Dow)(“March 8 A.M. Tr.”). As C De Baca, Cianchetti, and the Sais Plaintiffs consent to dismiss their claims regarding the initial suppression of the Dog Head Fire, the Court also dismisses those claims. See Response to United States of America's Motion to Dismiss Plaintiff Catherine C De Baca's Amended Complaint and Gary Cianchetti's Complaint Due to Lack of Subject Matter Jurisdiction and Adoption of the Legal Arguments Contained in All Plaintiffs' Responses to Defendant's Motions to Dismiss at 10, filed December 19, 2018 (Doc. 100)(“C De Baca Response”); Response to United States of America's Motion to Dismiss Plaintiffs Sais, Apodaca and Sorroche's Amended Complaint due to Lack of Subject Matter Jurisdiction at 2, filed December 19, 2108 (Doc. 101)(“Sais Response”). As the Court applies against the State Farm Plaintiffs the United States' arguments about the Ohlsen Plaintiffs' res ipsa loquitur claim and non-delegable duty claim and the Ohlsen Plaintiffs' responses to those arguments, see Ohlsen Response at 1 n.1; March 8 P.M. Tr. at 117:1-15 (Ortega, Court); id. at 118:2-8 (Tosdal), the Court also dismisses the State Farm Plaintiffs' res ipsa loquitur claim and non-delegable duty claim, because the Ohlsen Plaintiffs responded to the United States by stipulating to dismiss both those claims, see March 8 A.M. Tr. at 13:25-14:5 (Dow). Throughout the Factual Background and the Analysis, the Court makes individualized conclusions regarding the Ohlsen Plaintiffs' objections in the First Objections, the Fox Objections, the Motion to Strike, and the Motion to Strike Reply. The Court grants the Ohlsen Plaintiffs' and the United States' requests in the Motion to Strike and Supplemental Briefing Motion respectively to file additional briefing to enable the Ohlsen Plaintiffs and the United States to address the Third Fox Decl. and the CFDA issue.

         FACTUAL BACKGROUND

         The Court draws the factual background from the parties' undisputed material facts in: (i) the Independent Contractor Motion; (ii) the Ohlsen Plaintiffs' Response to Motion to Dismiss and for Partial Summary Judgment for Lack of Subject Matter Jurisdiction, filed December 19, 2018 (Doc. 97)(“Ohlsen Independent Contractor Response”);[15] (iii) the United States of America's Reply to Ohlsen Plaintiffs Response (Doc. 97) to United States' Motion to Dismiss (Doc. 60), filed February 28, 2019 (Doc. 126)(“Independent Contractor Reply”); (iv) the Ohlsen Motion; (v) the Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss Ohlsen Plaintiffs' Second Amended Complaint due to Lack of Subject Matter Jurisdiction, filed December 19, 2018 (Doc. 98)(“Ohlsen Response”);[16] (vi) the Ohlsen Reply; (vii) the C De Baca Motion; (viii) the C De Baca Response; (ix) the United States of America's Reply to Plaintiffs Catherine C De Baca's and Gary Cianchetti's Response to United States' Motion to Dismiss Due to Lack of Subject Matter Jurisdiction, filed February 28, 2019 (Doc. 128)(“C De Baca Reply”); (x) the Sais Response; and (xi) the United States of America's Reply in Support of Its Motion to Dismiss Plaintiffs Sais, Apodaca and Sorroche's Amended Complaint Due to Lack of Subject Matter Jurisdiction, filed February 28, 2019 (Doc. 129)(“Sais Reply”).

         On June 14, 2016, the Dog Head Fire started on the Forest Service's Treatment Unit 4, where the thinning crew was masticating a portion of the Cibola National Forest in the Mountaineer Ranger District -- which encompasses the Manzano Mountains -- pursuant to the Participating Agreement, and the Isleta Statement of Work Supplement to Participating Agreement to Implement Approved Tribal Forest Protection Act Project, as modified by Modification of Grant or Agreement (dated February 2016), filed November 2, 2018 (Doc. 60-3)(“Statement of Work Modification 3”).[17] See Independent Contractor Motion ¶ 1, at 3 (asserting this fact)(citing First Fox Decl.¶¶ 4, 8, at 1-2; Participating Agreement; Statement of Work Modification 3; Ohlsen Plaintiffs' Second Amended Complaint ¶¶ 9-12, 14, at 3-4, filed August 15, 2018 (Doc. 38)(“Ohlsen Complaint”)); Ohlsen Independent Contractor Response ¶ 1, at 3 (admitting this fact); Ohlsen Motion ¶ 4, at 4 (asserting this fact)(citing First Fox Decl. ¶¶ 4, 8, at 1-2; Participating Agreement; Statement of Work Modification 3; Ohlsen Complaint ¶¶ 9-12, 14, at 3-4; Second Declaration of Ian Fox ¶¶ 4-5, at 1-2 (taken October 31, 2018), filed November 2, 2018 (Doc. 62-1)(“Second Fox Decl.”)); Sais Motion ¶ 6, at 4 (asserting this fact)(citing First Fox Decl. ¶¶ 4, 8, at 1-2; Participating Agreement; Statement of Work Modification 3; Ohlsen Complaint ¶¶ 9-12, 14, at 3-4; Second Fox Decl. ¶¶ 4-5, at 1-2); Ohlsen Response ¶ 4, at 18 (admitting this fact). See also Ohlsen Response ¶ 1, at 3 (citing generally Participating Agreement).[18] A masticator used in the thinning operations started the fire, see Independent Contractor Motion ¶ 2, at 3 (asserting this fact)(citing First Fox Decl. ¶¶ 4, 8, at 1-2; Plaintiff's Amended Complaint for Negligence Arising Under the Federal Tort Claims Act ¶ 15, at 3, filed November 27, 2017 (Doc. 5)(“C De Baca Complaint”); Ohlsen Complaint ¶¶ 10-12, at 3-4; State Farm Fire & Cas. Co. v. United States, No. CIV 18-0367 JB\KK, Nature of Action, filed April 19, 2018 (Doc. 1)(“State Farm Complaint”)), [19] when the masticator hit a rock and ignited the slash[20] that had accumulated during the thinning project, see Ohlsen Independent Contractor Response ¶ 2, at 3 (asserting this fact)(citing Videotaped Deposition of Aaron Johnson at 16:23-17:10, filed December 19, 2018 (Doc. 97-1)(“Johnson Depo. 97-1”);[21] Videotaped Deposition of Jeremy Jiron at 29:10-23, filed December 19, 2018 (Doc. 97-2)(“J. Jiron Depo. 97-2”); Report of Investigation at 8, filed December 19, 2018 (Doc. 97-3)).[22]

         1.The Participating Agreement, the Statements of Work, and the Modifications.

         The thinning project developed after Isleta Pueblo proposed to the Forest Service “to undertake restoration projects on USFS [(Forest Service)] lands among the boundary with Pueblo lands.” Ohlsen Motion ¶ 5, at 4 (asserting this fact)(citing Second Fox Decl. ¶ 6, at 2); Sais Motion ¶ 7, at 4 (asserting this fact)(citing Second Fox Decl. ¶ 6, at 2).[23] Because the thinning project emerged from Isleta Pueblo's proposal, the Forest Service and Isleta Pueblo undertook the project in part in accordance with the Tribal Forest Protection Act, 25 U.S.C. §§ 1301, 3115a (“TFPA”).[24] See Ohlsen Motion ¶ 5, at 4 (asserting this fact)(citing Second Fox Decl. ¶ 6, at 4); Sais Motion ¶ 7, at 4 (asserting this fact)(citing Second Fox Decl. ¶ 6, at 2).[25] The Forest Service and Isleta Pueblo entered the Participating Agreement under the CFDA[26] and the Wyden Amendment, Pub. L. 105-277 § 323, 122 Stat 2681 (1998), as amended by Pub. L. 111-011, § 3001, 123 Stat 991 (2009)[27] and not under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 5321. See Independent Contractor Motion ¶¶ 5-6, at 4 (asserting this fact)(citing First Fox Decl. ¶¶ 4-8, at 1-2; Participating Agreement at 1); Ohlsen Independent Contractor Response ¶¶ 4-5, at 3 (admitting this fact); Ohlsen Response ¶ 3, at 3 (asserting this fact)(citing Participating Agreement at 1); Ohlsen Reply ¶ 3, at 10 (admitting this fact).[28]

         In deciding whether to enter a participating agreement, the Forest Service “weighs multiple public policy considerations.” Ohlsen Motion ¶ 6, at 4 (asserting this fact)(citing Second Fox Decl. ¶¶ 15-26, at 3-7); Sais Motion ¶ 8, at 4 (asserting this fact)(citing Second Fox Decl. ¶¶ 15-26, at 3-7).[29] When the Forest Service decided to accept Isleta Pueblo's proposal, for instance, the Forest Service considered whether the Pueblo Proposal, and actions taken in carrying out the Pueblo Proposal, served the public policies underlying the statutes that govern the management of USFS lands; the agency's mission, which is to sustain the health, diversity, and productivity of the Nation's forests and grasslands using the sustainable multiple-use management concept to meet the diverse needs of the people; public policies and priorities as set forth in the Cibola National Forest Land and Resource Management Plan (“Forest Plan”), the USDA Strategic Plan: FY 2010-2015 (“Strategic Plan”), the Forest Service Southwestern Region Landscape Conservation and Restoration Strategic Action Plan dated January 31, 2011 (“Region 3 Strategic Plan”), and the National Cohesive Wildland Fire Management Strategy (“Cohesive Strategy”).[30]

         Ohlsen Motion ¶ 7, at 5 (asserting this fact)(citing Second Fox Decl. ¶ 15, at 3-4); Sais Motion ¶ 9, at 4-5 (asserting this fact)(citing Second Fox Decl. ¶ 15, at 3-4).[31] In assessing Isleta Pueblo's proposal under these statutes, the Forest Service considered

whether the Isleta Restoration Project [(Isleta Pueblo's proposed project)] would reduce threats of catastrophic wildland fire, improve forest health, improve watershed health, improve wildlife habitat, provide job training and development programs, and provide mutual interests other than monetary considerations. USFS also considered the policy preference for tribally proposed projects on USFS lands, protection of Indian trust resources from fire and disease, health of the proposed project area as compared to the rest of the Forest, Pueblo's experience with similar restoration projects, additional proposed/ongoing projects, relative priority of the projects, and available funding.

         Ohlsen Motion ¶ 8, at 6 (asserting this fact)(citing Second Fox Decl. ¶¶ 18-25, at 4-6); Sais Motion ¶ 10, at 5 (asserting this fact)(citing Second Fox Decl. ¶¶ 18-25, at 4-6).[32]

         The Participating Agreement states: “The Pueblo shall also supervise and direct the work of its employees, volunteers, and participants performing under this contract.” Participating Agreement ¶ V(F), at 5.[33] See Ohlsen Motion ¶ 10, at 6 (asserting that the Participating Agreement delegated responsibility for supervising the thinning crew to Isleta Pueblo)(citing Second Fox Decl. ¶ 27, at 7)); Sais Motion ¶ 12, at 6 (same)(citing Second Fox Decl. ¶ 27, at 7); Ohlsen Response ¶ 10, at 19 (admitting that the Second Fox Decl. ¶ 27, at 7, includes the language about the Participating Agreement and the Statement of Work delegating responsibilities to Isleta Pueblo).[34] The Participating Agreement further describes Isleta Pueblo's responsibilities:

A. LEGAL AUTHORITY. The Pueblo shall have the legal authority to enter into this agreement, and the institutional, managerial, and financial capability to ensure proper planning, management, and completion of the project, which includes funds sufficient to pay the nonfederal share of project costs, when applicable.
B. Contribute personnel, provide equipment and supplies as needed, and manage the employees so that work is completed as mutually agreed upon to the specifications stated in the Statement of Work Supplement, incorporated hereunder as Exhibit A.
C. Administer agreement funds, including timekeeping payment of salaries and invoices for payment D. Provide and maintain work environments and procedures which will safeguard Tribal employees, the public, and Forest Service personnel, property, materials, supplies and equipment exposed to the operations and activities, and avoid interruptions of Government operations and delays of other projects and completion dates.

         Participating Agreement ¶¶ III(A)-(D), at 2.[35] See Ohlsen Motion ¶ 10, at 6 (asserting Isleta Pueblo's responsibilities)(citing Second Fox Decl. ¶ 27, at 7); Sais Motion ¶ 12, at 6 (same)(citing Second Fox Decl. ¶ 27, at 7); Ohlsen Response ¶ 10, at 19 (admitting that the Second Fox Decl. ¶ 27, at 7, includes the language about the Participating Agreement and the Statement of Work delegating responsibilities to Isleta Pueblo).[36] The Participating Agreement also provides:

The Pueblo agree(s) that any of their employees, volunteers, and program participants shall not be deemed to be Federal employees for any purposes including Chapter 171 of Title 23, United States Code (Federal Tort Claims Act) and Chapter 81 of Title 5, United States Code (OWCP) [(providing for workers' compensation)], as the Pueblo hereby willingly agree(s) to assume these responsibilities.
Further, the Pueblo shall provide any necessary training to ensure that such personnel are capable of performing tasks to be completed. The Pueblo shall also supervise and direct the work of its employees, volunteers, and participants performing under this agreement.

         Participating Agreement ¶ V(F), at 5. See Independent Contractor Motion ¶ 8, at 5 (asserting that the thinning crew workers are not federal employees pursuant to the Participating Agreement)(quoting Participating Agreement ¶ V(F), at 5); Ohlsen Independent Contractor Response ¶ 8, at 13 (admitting that the Participating Agreement contains the quoted language);[37]

         Ohlsen Independent Contractor Response 6, at 7 (asserting that Participating Agreement ¶ V(F), at 5 contains the last sentence in the quotation supra)(citing Participating Agreement ¶ V(F), at 5).[38] The Participating Agreement continues:

The Pueblo shall maintain effective control over and accountability for all U.S. Forest Service funds, real property, and personal property assets. The Pueblo shall keep effective internal controls to ensure that all United State Federal funds received are sparely and properly allocated to the activities described in the agreement. The Pueblo shall adequately safeguard all such property and shall ensure that it is used solely for authorized purposes.

         Participating Agreement ¶ V(J)(3), at 6, and further states: “The Pueblo shall monitor the performance of the agreement activities to ensure that performance goals are being achieved.” Participating Agreement ¶ V(O), at 8.[39] Throughout the Participating Agreement, the document refers to Isleta Pueblo as “Pueblo, ” “Cooperator, ” or “Partner.” Ohlsen Independent Contractor Response ¶ 1, at 21-22 (asserting this fact)(quoting Participating Agreement ¶¶ V(F), (L), at 5-6; Agreement Financial Plan at 1, filed December 19, 2081 (Doc. 97-5); Isleta Statement of Work Supplement to Participating Agreement to Implement Approved Tribal Forest Protection Act Project §§ 1(E)-(F), 4-12, at 350-51, 355-70 (dated February 2014), filed November 2, 2018 (Doc. 97-5)(“Statement of Work Original”)). See Ohlsen Response ¶ 4, at 3 (asserting this fact)(citing Statement of Work Original §§ 4-12, at 355-70).[40] By delegating the responsibilities for the thinning to Isleta Pueblo, the Forest Service advanced the same goals that it furthered by accepting Isleta Pueblo's proposal to begin the project, including building partnerships, developing tools for conservation and restoration, and providing jobs. See Ohlsen Motion ¶ 11, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 32, at 8); Sais Motion ¶ 13, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 32, at 8); Ohlsen Response ¶ 11, at 19 (admitting that the Second Fox Decl. ¶ 32, at 8, includes language stating this fact).[41]

         The Statements of Work provide additional instructions for the thinning crew's work, including, for Unit 4, stating:

“The Partner will CUT ponderosa pine and white fir that is greater than 5'' DBH [diameter breast height][42] and alligator juniper and pinion pine that are greater than 5'' DRC [diameter at root collar[43] that do not have orange paint on them.”
“The partner will NOT CUT any hardwoods (i.e. oak trees. etc.) or Douglas-fir trees regardless of size.”
“The Partner WILL cut all trees less than 5'' DBH/DRC and greater than 4.5' tall, unless there is evidence of orange paint on the trees bole or foliage.”
“The Partner WILL be required to lop and scatter the limbs and tops up to 3'' diameter tops of dropped trees. Maximum slash depth will be 18''.”

         Ohlsen Independent Contractor Response ¶ 3, at 5 (asserting this fact)(second, third, and fourth alterations added)(quoting Statement of Work Original § 1(A), at 1). See Independent Contractor Reply Plaintiffs' § A3, at 9 (admitting this fact).[44] The Statement of Work Original contains detailed provisions for mastication in goshawk[45] foraging and post-fledging areas. See Ohlsen Independent Contractor Response ¶ 3, at 6 (asserting this fact)(citing Statement of Work Original § 1 at 348-49); Independent Contractor Reply Plaintiffs' § A3 at 9 (admitting this fact).[46] The Statements of Work provide “detailed specifications . . . including descriptions of treatment units and work items, scope of work, tasks and subtasks, quality performance requirements, resource protections standards, and safety standards and guidelines.” Independent Contractor Motion ¶ 31, at 9 (asserting this fact)(citing First Fox Decl. ¶ 21, at 4; Statement of Work Modification 3 §§ 1, 3-11, at 410-11, 416-30). See Ohlsen Independent Contractor Response ¶ 31, at 17 (admitting this fact).

         The Participating Agreement also states: “The Project has a silviculture prescription, which the crew will follow.” Ohlsen Independent Contractor Response ¶ 1, at 4 (asserting this fact)(citing Participating Agreement at 1). See Ohlsen Independent Contractor Reply Plaintiffs' § A1, at 7 (admitting this fact). The United States has produced twenty-seven pages of silviculture prescriptions that the Forest Service developed. See Ohlsen Independent Contractor Response ¶ 1, at 4 (citing Video Deposition of Mark Dixon at 21:13-16 (taken November 29, 2018), filed December 19, 2018 (Doc. 97-6)(“Dixon Depo. 97-6”); id. at 36:21-37:3; id. at 43:5-11; Treatment Prescription and Marking Guide (dated July 6, 2013), filed December 19, 2018 (Doc. 97-7)(“Silviculture Prescriptions”)).[47] The Silviculture Prescriptions address forest management, and Ian Fox, the Forest Service Natural Resource Officer of the Cibola National Forest and National Grasslands, First Fox Decl. ¶ 1, at 1, and Aaron Johnson, a Forest Service Project Administrator for the thinning project, see Ohlsen Independent Contractor Response ¶ 7, at 7 (asserting this fact)(citing Delegation of Authority Isleta Participating Agreement at 1, filed December 19, 2018 (Doc. 97-10)(“Delegation”)); Independent Contractor Reply Plaintiffs' § A7, at 10 (admitting this fact), [48] reviewed such documents with Isleta Pueblo officials and the thinning crew, see Ohlsen Independent Contractor Response ¶ 1, at 4 (asserting this fact)(citing Johnson Depo. 97-1 at 53:20- 21; Dixon Depo. 97-6 at 16:1-8; id. at 19:11-19; id. at 21:21-22:9; id. at 23:5-10).[49] The Silviculture Prescriptions detail rules for performing work in different tree stands, including

the size, location, shape, and species of trees to leave for regeneration openings; the size, health, number of trees, stand configuration, and species to leave for areas surrounding regeneration areas; the number of snags to leave per acre; what constitutes a “desirable, ” “acceptable, ” and “undesirable” trees in terms of health, pests, and form defects, and how many desirable and acceptable quality trees to leave per acre.

         Ohlsen Independent Contractor Response ¶ 1, at 4 (asserting this fact)(quoting? Silviculture Prescriptions; and citing Dixon Depo. 97-6 at 38:4-9; id. at 38:18-39:6).[50] With the Silviculture Prescriptions, the Forest Service established treatment prescriptions for its lands. See Ohlsen Response ¶ 10, at 4 (asserting this fact)(describing that the Forest Service established treatment prescriptions regarding where to thin, what to thin, and the manner of thinning, and discussed the prescriptions with the thinning crew)(citing Silviculture Prescriptions at 20-21; Deposition of Francisco Lueras at 30:19-31:25 (taken December 12, 2018), filed December 19, 2018 (Doc. 98-6)(“Lueras Depo. 98-6”)); Ohlsen Reply ¶ 10 and 11, at 12 (admitting this fact).

         The Participating Agreement and Statements of Work delegate to Isleta Pueblo the responsibility for taking precautions in preventing and suppressing wildfires resulting from the thinning crew's work. See Ohlsen Motion ¶ 10, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 27, at 7); Sais Motion ¶ 12, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 27, at 7); Ohlsen Response ¶ 10, at 19 (admitting that the Second Fox Decl. includes the language about the Participating Agreement and the Statements of Work delegating responsibilities to Isleta Pueblo).[51]Isleta Pueblo, under the Participating Agreement, was, for instance, “responsible for complying with State and Federal fire laws, including tool and equipment guidelines and fire preparedness, abiding by emergency fire precautions, preventing Pueblo employees from setting fires, preventing the escape of fires started as a result of its operations, and extinguishing all such fires which might escape.” Ohlsen Independent Contractor Motion (asserting this fact)(citing Participating Agreement ¶¶ III (A)-(D), at 2; id. ¶ (V)(F), at 5; Statement of Work Modification 3 §§ 3-4, 11 at 416, 427-30).[52] Isleta Pueblo could also be held liable for “all damages and for all costs incurred by the Government in controlling or suppressing a fire set or caused by the Pueblo.” Independent Contractor Motion ¶ 29, at 8 (asserting this fact)(citing Participating Agreement ¶ (V)(F), at 5; Statement of Work Modification 3 § 11 at 427-30). See Ohlsen Independent Contractor Response ¶ 29, at 17 (admitting this fact).

         The Statements of Work also schedule what work the thinning crew should perform. See Ohlsen Independent Contractor Response ¶ 13, at 15 (asserting this fact)(citing Statement of Work Original § 12, at 369-70);[53] Ohlsen Independent Contractor Response ¶ 9, at 7 (asserting this fact)(citing Statement of Work § 12, at 369-70); Independent Contractor Reply Plaintiffs' § A9, at 11 (admitting this fact). The Forest Service, for instance, “scheduled Unit 4 for hand thinning to be done August through November 4.” Ohlsen Independent Contractor Response ¶ 9, at 7 (asserting this fact)(citing Statement of Work Original § 12, at 369-70); Independent Contractor Reply Plaintiffs' § A9, at 11 (admitting this fact).

         The Participating Agreement provides that the Forest Service will “[r]eimburse the Pueblo for the U.S. Forest Service's share of actual expenses incurred, not to exceed $783, 000, as shown in the Financial Plan, ” “[d]esignate work areas and provide cutting guidelines for achieving desired condition, ” “[i]nspect the work to provide feedback on how goals are being accomplished, ” and “[r]eimburse the Pueblo for completed acres at a rate of $300/acre for Treatment Type 1 (hand fell) Units, and for completed acres at a rate of $600/acre for Mastication Units.” Participating Agreement ¶¶ IV(A)-(D), at 2-3.[54] See Independent Contractor Motion ¶ 30, at 8 (asserting this fact)(citing Participating Agreement ¶¶ IV(A)-(D), at 2-3); Ohlsen Independent Contractor Response ¶ 30, at 17 (admitting this fact).[55] See also Ohlsen Independent Contractor Response ¶ 2, at 4 (asserting Participating Agreement ¶ IV(B), at 3's language about work areas)(quoting Participating Agreement ¶ IV(B), at 3);[56] Ohlsen Independent Contractor Response ¶ 3, at 5 (asserting Participating Agreement ¶ IV(B), at 3's language about cutting guidelines)(quoting Participating Agreement ¶ IV(B), at 3); Independent Contractor Reply Plaintiffs' § A3, at 9 (admitting this fact);[57] Ohlsen Independent Contractor Response ¶ 4, at 6 (asserting Participating Agreement ¶ IV(C), at 3's language)(quoting Participating Agreement ¶ IV(C), at 3); Independent Contractor Reply Plaintiffs' § A4, at 9 (admitting this fact).[58] The Participating Agreement does not contain language stating that it excludes the Forest Service from supervising the thinning crew. See Ohlsen Independent Contractor Response ¶ 6, at 7 (asserting this fact).[59]

         The Participating Agreement provides that, should Isleta Pueblo not comply with the Participating Agreement, the Forest Service can:

1. Temporarily withhold cash payments pending correction of the deficiency by the Pueblo or more severe enforcement action by the U.S. Forest Service;
2. Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance;
3. Wholly or partly suspend or terminate the current agreement for the Pueblo's program;
4. Withhold further awards for the program, or
5. Take other remedies that may be legally available, including debarment procedures under 7 CFR part 3017.

         Participating Agreement ¶ V(Y), at 10-11. See Independent Contractor Motion ¶ 32, at 9 (citing this provision); Ohlsen Independent Contractor Response ¶ 32, at 17 (summarizing and citing this provision); Independent Contractor Reply Def.'s UMF No. 32 at 25-26 (admitting this provision is in the Participating Agreement). Frank Jiron, “the designated contact for the Pueblo's thinning crew performing work under the Isleta Participating Agreement, ” Independent Contractor Motion ¶ 41, at 10 (asserting this fact)(citing Videotaped Deposition of Frank Jiron at 16:8-23 (taken September 25, 2018), filed November 9, 2018 (Doc. 76-2)(“F. Jiron Depo. 76-2”)); see Ohlsen Independent Contractor Response ¶ 41, at 20 (admitting this fact), believed that the Forest Service could stop the thinning crew's work for non-compliance with the instructions for safety and mastication, see Ohlsen Independent Contractor Response ¶ 14, at 12 (asserting this fact)(citing Videotaped Deposition of Frank Jiron at 51:14-52:5 (taken September 25, 2018), filed December 19, 2018 (Doc. 97-9)(“F. Jiron Depo. 97-9”)), [60] and the Participating Agreement gives the Forest Service such authority, see Participating Agreement ¶ V(Y)(5), at 10-11.[61]

         The Statement of Work Original has been modified four times. See Ohlsen Independent Contractor Response ¶ 1, at 7 (asserting this fact)(citing Dixon Depo. 97-6 at 57:6-8); Independent Contractor Reply Plaintiffs' § B1, at 11 (admitting this fact).[62] Modifications supplement earlier Statements of Work, and the latest modification before any event controls the work at that event's time. See Ohlsen Independent Contractor Response ¶ 2, at 8 (asserting this fact)(citing Videotaped Deposition of Elaine Kohrman at 138:10-14 (taken September 10, 2018), filed November 19, 2018 (Doc. 97-4)(“Kohrman Depo. 97-4”); id. at 133:16-21); Independent Contractor Reply Plaintiffs' § B2, at 12 (admitting this fact).[63] “Modification 1 revised the scope of work by, among other things, decreasing the number of acres to be hand thinned in Unit 4 and increased the per acre cost for doing so.” Ohlsen Independent Contractor Response ¶ 2, at 8 (asserting this fact)(citing Modification of Grant or Agreement at 1-4 (dated September 24, 2014), filed December 19, 2018 (Doc. 97-11)(“Statement of Work Modification 1”)). See Independent Contractor Reply Plaintiffs' § B2, at 12 (admitting this fact).[64] Modification 2 again revised the scope of work and included information on thinning ninety-three “acres of goshawk habitat.” Ohlsen Independent Contractor Response § B2, at 12 (asserting this fact)(citing Modification of Grant or Agreement at 1-32 (dated June 5, 2015), filed December 19, 2018 (Doc. 97-12)(“Statement of Work Modification 2”)). See Independent Contractor Reply Plaintiffs' ¶ 2, at 12 (admitting this fact).[65]The Forest Service and Isleta Pueblo signed Statement of Work Modification 3 -- which provides for masticating Unit 4 -- in May 2016, and, as the last modification before the Dog Head Fire, it controlled the thinning crew's work during that time. See Ohlsen Independent Contractor Response ¶ 3, at 8 (asserting this fact)(citing generally Statement of Work Modification 3); Independent Contractor Reply Plaintiffs' § B3, at 12 (admitting this fact).[66] Statement of Work Modification 3 provides for masticating slash in Unit 4. See Ohlsen Independent Contractor Response ¶ 3, at 8 (asserting this fact)(citing generally Statement of Work Modification 3); Independent Contractor Reply Plaintiffs' § B3, at 12 (admitting this fact).[67] Statement of Work Modification 3 contains language indicating “‘[m]asticated material should range in size from small grinded material to completely intact bole wood[68]'”; “‘the contractor will maintain an average 3-6 pieces of large wood debris (minimum of 8' long and 12'' diameter at mid-point) per acre'”; and “‘[a]verage masticated material depth should be 2'' and not exceed 4''.'” Ohlsen Independent Contractor Response ¶ 4, at 8 (asserting this fact)(alterations in Ohlsen Independent Contractor Response)(quoting Statement of Work Modification 3 ¶ 5(c), at 419-20). See Independent Contractor Reply Plaintiffs' § B4, at 8 (admitting that Modification 3 contains this language).[69] Modification 4 became effective after the Dog Head Fire, in 2017, and instituted an operational change requiring a site-by-site evaluation of fire risk rather than a district-wide evaluation. See Ohlsen Independent Contractor Response ¶ 5, at 8 (asserting this fact)(citing Kohrman Depo. 97-4 at 138:21-139:6; id. at 140:3-7; id. at 140:22-141:8; Dixon Depo. 97-6 at 83:6-10; F. Jiron Depo. 97-9 at 42:2-43:20; Project Fire Precautions Assessment, filed December 19, 2018 (Doc. 97-14)); Independent Contractor Reply Plaintiffs' § B5, at 13 (admitting this fact).[70]

         The Statements of Work define a Project Administrator as the “[i]ndividual responsible for on-site administrator for agreement implementation; designation is based on responsibilities assigned by the Project Contact.” Ohlsen Independent Contractor Response ¶ 7, at 7 (asserting this fact)(citing Statement of Work Original § 2(A), at 351). See Independent Contractor Reply Plaintiffs' § A3, at 10 (admitting this fact).[71] The Delegation identifies Johnson and Terry Hudson as the Project Administrators. See Ohlsen Independent Contractor Response ¶ 7, at 7 (asserting this fact)(citing Delegation at 1); Independent Contractor Reply Plaintiffs' § A7, at 10 (admitting this fact).[72] The Participating Agreement identifies Fox as the Forest Service “Program Manager Contact, ” and identifies Isleta Pueblo individual “Frank Jiron, Forest Supervisor” as the Cooperator Project Contact, and Isleta Pueblo individual Steve Abeita as the Cooperator Financial Contact. Ohlsen Independent Contractor Response ¶ 5, at 6 (asserting this fact)(citing Participating Agreement ¶ V(A), at 3-4); Independent Contractor Reply Plaintiffs' § A5 (admitting the first fact).[73] The Delegation further identifies Forest Service employees Karen Dyckes Y. Montano as the Administrative Contact (Grants and Agreement Specialist), Fox as the Project Contact (Forestry Program Manager), Johnson as the Project Administrator (Sandia District Forester), Hudson as the Project Administrator (Mountainair District Forester), and Keyco Lueras as the Project Inspector (Zoned Forestry Technician), see Ohlsen Response ¶ 5, at 3-4 (asserting this fact)(citing Delegation at 1), [74] and describes each individuals' approval authority, see Ohlsen Reply ¶ 5-6, at 10 (citing Third Fox Decl. ¶¶ 14-15, at 3-4[75]).[76]

         The Participating Agreement broke the total treatment area in the Cibola National Forest into units. See Ohlsen Motion ¶ 14, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 35, at 9); Sais Motion ¶ 16, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 35, at 9); Ohlsen Response ¶ 14, at 19 (admitting this fact). The Dog Head Fire began in Unit 4, within Management Unit 11. See Ohlsen Motion ¶ 15, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 38, at 9); Sais Motion ¶ 17, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 38, at 9); Ohlsen Response ¶ 15, at 19 (admitting this fact). The Forest Service “designated work areas or units and the type of treatment for those units as described in the Statement of Work.” Ohlsen Motion ¶ 16, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 35, at 9); Sais Motion ¶ 18, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 35, at 9). See Ohlsen Response ¶ 16, at 20 (admitting this fact).

Decisions regarding when and how to treat specific areas of USFS lands were guided by statutes governing management of those lands, the overall mission of the USFS, and importantly here, the Forest Plan, the Strategic Plan, and Region 3 Strategic Plan. The USFS also considered important policy considerations such as anticipated and available funding, competing projects, risk of wildfire, overall health of the forest, and relative health of different areas of the forest, population density, public interests, and other committed resources, while also taking into account the priorities of USFS's partners.

         Ohlsen Motion ¶ 17, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 36, at 9); Sais Motion ¶ 19, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 36, at 9).[77] Moreover,

[a]ligning forest-thinning work on the units with general fire restrictions involves weighing policy considerations. USFS weighs the risk of further restricting forest thinning activity on USFS lands versus the risk of a catastrophic wildfire if the work is not performed in a timely manner. The USFS also has several restoration projects happening in tandem and must take into consideration the timing of each of these projects. The USFS must also take into consideration available funding for projects and when the projects must take place to take advantage of the funding.

         Ohlsen Motion ¶ 29, at 10 (asserting this fact)(citing Second Fox Decl. ¶¶ 53-58, at 12-13); Sais Motion ¶ 33, at 9-10 (asserting this fact)(citing Second Fox Decl. ¶¶ 53-58, at 12-13).[78] “Decisions regarding required tools and equipment to mitigate the risk of causing wildfire involves [sic] policy considerations such as how best to use USFS monetary resources, the benefits of additional tools and equipment, and the risk that the work will cause a wildfire.” Ohlsen Motion ¶ 30, at 9 (asserting this fact)(citing Second Fox Decl. ¶¶ 63-66, at 14-15); Sais Motion ¶ 37, at 10 (asserting this fact)(citing Second Fox Decl. ¶¶ 63-66, at 14-15). See Ohlsen Response ¶ 29, at 22 (admitting this fact).

         2.The Forest Service and Thinning Crew Interactions.

         For the restoration project, the thinning crew consisted of a hand crew of generally eight to ten workers and a mastication crew. See Ohlsen Independent Contractor Response ¶ 2, at 5 (asserting this fact)(citing Dixon Depo. 97-6 at 22:10-23:2); Independent Contractor Reply Plaintiffs' § A2, at 8 (admitting this fact).[79] As the crew's supervisor and foreman, F. Jiron attended the thinning project site “at least once a week” and “was on site seventy-five percent (75%) of the time.” Independent Contractor Motion ¶ 42, at 10 (asserting this fact)(citing F. Jiron Depo. 76-2 at 52:12-14; id. at 96:20-25). See Ohlsen Independent Contractor Response ¶ 2, at 9 (asserting this fact)(citing Johnson Depo. 97-1 at 40:16-20; id. at 72:20-73:1).[80] Marcelini Zuni was the day-to-day supervisor at the thinning site; he was on site most days, and, on the workdays, also reported to F. Jiron in person. See Independent Contractor Motion ¶ 45, at 11 (asserting that Zuni supervised the thinning crew daily and reported to F. Jiron)(citing F. Jiron Depo. 76-2 at 61:12-23; id. at 94:23-96:25); Ohlsen Independent Contractor Response ¶ 45, at 20 (asserting Zuni was on the project “most days”)(citing F. Jiron Depo. 97-9 at 61:12-23).[81] F. Jiron would personally or through Zuni give the thinning crew orders, see Ohlsen Independent Contractor Response ¶ 43, at 20 (asserting this fact)(citing F. Jiron Depo. 97-9 at 96:4), [82] and the thinning crew met daily to receive instructions from Zuni, see Independent Contractor Motion ¶ 51, at 12 (asserting this fact)(citing Videotaped Deposition of Jeremy Jiron at 95:3-19 (taken September 25, 2018), filed November 9, 2018 (Doc. 76-3)(“J. Jiron Depo. 76-3”)); Ohlsen Independent Contractor Response ¶ 51, at 21 (admitting this fact). Mark Dixon[83] visited the thinning site about six times during the two years before the Dog Head Fire. See Ohlsen Independent Contractor Response ¶ 2, at 9 (asserting this fact)(citing Dixon Depo. 97-6 at 51:15-22).[84] Jeremy Jiron, the masticator operator, identified Dixon and F. Jiron as supervisors, and Zuni as the primary supervisor and the “direct supervisor on a day-to-day basis, ” J. Jiron Depo. 76-3 at 94:21-95:12; Eugene Jiron, a thinning crew member, testified that F. Jiron and Zuni were the thinning crew's day-to-day supervisors, see Videotaped Deposition of Eugene Jiron at 83:10-22 (taken September 26, 2018), filed November 9, 2018 (Doc. 76-4)(“E. Jiron Depo. 76-4”). See also Independent Contractor Motion ¶ 49, at 11 (asserting this fact)(citing J. Jiron Depo. 76-3 at 94:21-95:12; E. Jiron Depo. 76-4 at 83:10-22; Jaramillo Depo. 76-5 at 91:3-19[85]).[86]

         F. Jiron did not regularly meet with the Forest Service for instructions on the thinning project. See Independent Contractor Motion ¶ 44, at 11 (asserting this fact)(citing F. Jiron Depo. 76-2 at 49:14-125).[87] Over the course of the thinning project, F. Jiron met, for example, five times with Fox in the Cibola National Forest. See Ohlsen Independent Contractor Response ¶ 14, at 12 (asserting this fact)(citing F. Jiron Depo. 97-9 at 32:5-12); Independent Contractor Reply § C14, at 19 (admitting this fact).[88]

         The Forest Service monitored and ensured, however, that the thinning crew performed work according to the Participating Agreement and the Statements of Work. See Ohlsen Independent Contractor Response ¶ 10, at 14 (asserting this fact).[89] See also Ohlsen Motion ¶ 12, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 31, at 8); Sais Motion ¶ 14, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 31, at 8); Ohlsen Response ¶ 12, at 19 (admitting this fact). The Forest Service approved the thinning crew's work and told the thinning crew what to do to meet the Forest Service's prescriptions. See Ohlsen Response ¶ 13, at 5 (asserting this fact)(citing Lueras Depo. 98-6 at 33:12-35:20; id. at 39:2-16; id. at 52:8-25; Videotaped Deposition of Aaron Johnson at 65:6-9 (taken September 11, 2018), filed December 19, 2018 (Doc. 98-3)(“Johnson Depo. 98-3”); id. at 128:20-24); Ohlsen Reply ¶ 13-16, at 13 (admitting this fact). When Johnson visited the site, he inspected the work and gave the thinning crew workers suggestions for improvement. See Ohlsen Independent Contractor Response ¶ 53, at 21 (asserting this fact)(citing J. Jiron Depo. 76-3 at 24:3-25:6).[90] Johnson would sometimes create a “Participating Agreement Site Visit Report” -- or “Inspection Report” or “Contract Daily Diary Report” -- to record events such as when the thinning crew completed a unit and to note concerns with the thinning crew's work; he might provide the report and verbal directions to the thinning crew through F. Jiron or through the crew lead. See Independent Contractor Motion ¶ 36, at 9-10 (asserting this fact)(citing Videotaped Deposition of Aaron Johnson at 56:6-18 (taken September 11, 2018), filed November 2, 2018 (Doc. 60-5)(“Johnson Depo. 60-5”); F. Jiron Depo. 76-2 at 18:25-24:18; id. at 96:3-11);[91]Ohlsen Independent Contractor Response ¶ 36, at 19 (asserting this fact)(citing Johnson Depo. 97-1 at 56:6-15; id. at 67:14-21);[92] Ohlsen Independent Contractor Response ¶ 3, at 9-10 (asserting this fact); Independent Contractor Reply Plaintiffs' § C3, at 15 (admitting this fact).[93] If Johnson determined that the thinning crew's work was unacceptable, he directed the crew to redo the work. See Ohlsen Independent Contractor Response ¶ 12, at 12 (asserting this fact)(citing F. Jiron Depo. 97-9 at 20:8-24).[94] On April 4, 2014, Hudson told F. Jiron “‘to remove slash from the road, '” which was typical of the directions Johnson and Hudson gave the thinning crew. Ohlsen Independent Contractor Response ¶ 4, at 10 (asserting this fact)(quoting Participating Agreement Site Visit Report at 1 (dated April 4, 2014), filed December 19, 2018 (Doc. 97-17)(“Site Visit Report”); and citing Johnson Depo. 97-1 at 70:4-8); Independent Contractor Reply Plaintiffs' § C4, at 15 (admitting this fact).[95] On May 5, 2015, Johnson told F. Jiron and a masticator operator to start masticating Unit 2, and the three men went to Unit 2 where Johnson discussed the “unit boundary, specifications of work, and the work prescription.” Ohlsen Independent Contractor Response ¶ 5, at 8 (asserting this fact)(citing Contractor Daily Diary at 1 (dated May 5, 2015), filed December 19, 2018 (Doc. 97-18)(“Contractor Daily Diary 97-18”); Johnson Depo. 97-1 at 71:7-16); Independent Contractor Reply Plaintiffs' § C5, at 15 (admitting this fact).[96] At another time, Johnson asked F. Jiron to instruct the crew to spend less time addressing the slash and increase the pace of thinning per acre. See Independent Contractor Motion ¶ 6, at 10 (asserting this fact)(citing Contract Daily Diary at 1 (dated May 9, 2015), filed December 19, 2018 (Doc. 97-19)(“Contract Daily Diary 97-19”); Johnson Depo. 60-5 at 71:19-72:4); Independent Contractor Reply Plaintiffs' § C6, at 15-16 (admitting this fact).[97] Johnson also directed the crew lead, E. Jiron, at one point, to change the size of the mastication grindings to reduce their depth, because Johnson had the discretion as the inspector to make this request. See Ohlsen Independent Contractor Response ¶ 7, at 10 (asserting this fact)(citing Johnson Depo. 97-1 at 73:4-74:23; Contract Daily Diary at 1 (dated May 9, 2014), filed December 19, 2018 (Doc. 97-20)(“Contract Daily Diary 97-20”); Independent Contractor Reply Plaintiffs' § C7, at 16 (admitting this fact).[98] Lueras also heard Johnson “tell the thinning crew to take care getting the diameters right because they may be leaving too many big trees.” Ohlsen Independent Contractor Response ¶ 13, at 12 (asserting this fact)(citing Deposition of Francisco Lueras at 36:3-18 (taken December 12, 2018), filed December 19, 2018 (Doc. 97-29)(“Lueras Depo. 97-29”)).[99]

         Johnson largely communicated with F. Jiron and Zuni. See Independent Contractor Motion ¶ 54, at 12 (asserting this fact)(citing J. Jiron Depo. 76-3 at 47:1-15; id. at 95:1-97:24); Ohlsen Independent Contractor Response ¶ 54, at 21 (admitting this fact). Jaramillo, for instance, received instructions from people from Isleta Pueblo, see Independent Contractor Motion ¶ 58, at 12 (asserting this fact)(citing F. Jiron Depo. 76-2 at 27:25-28:10; id. at 9:18-10:7; id. at 15:8-22; id. at 91:3-93:15); Ohlsen Independent Contractor Response ¶ 58, at 12 (admitting this fact), and, although he worked with the thinning crew every other day for a couple weeks before the Dog Head Fire, he had never heard of Johnson, see Independent Contractor Motion ¶ 59, at 12 (asserting this fact)(citing Jaramillo Depo. 76-5 at 11:24-12:4; id. at 15:8-22; id. at 90:12-16); Ohlsen Independent Contractor Response ¶ 59, at 21 (admitting this fact). J. Jiron spoke “a little bit” to Johnson about the Project; Independent Contractor Motion ¶ 53, at 12 (asserting this fact)(citing J. Jiron Depo. 76-3 at 24:3-25:6), [100] but he never received written instructions from Johnson, see Independent Contractor Motion ¶ 55, at 12 (asserting this fact(citing J. Jiron Depo. 76-3 at 48:6-22).[101]

         When Johnson visited the site and F. Jiron was available, Johnson gave verbal instructions to F. Jiron, which F. Jiron followed, and when F. Jiron was not at the site, Johnson instructed the thinning crew. See Ohlsen Independent Contractor Response ¶ 12, at 11-12 (asserting this fact)(citing F. Jiron Depo. 97-9 at 20:8-24; id. at 50:1-10; id. at 23:17-20); Independent Contractor Reply Plaintiffs' § C12, at 18 (admitting this fact).[102] If Johnson raised an issue with F. Jiron, he expected F. Jiron to raise the issue with the thinning crew. See Independent Contractor Motion ¶ 6, at 10 (asserting this fact)(citing Johnson Depo. 97-1 at 71:19-72:4); Independent Contractor Reply Plaintiffs' § C6, at 15-16 (admitting this fact). F. Jiron would communicate the report to the thinning crew in person or through Zuni. See Ohlsen Independent Contractor Response ¶ 43, at 20 (asserting this fact)(citing F. Jiron Depo. 97-9 at 96:4).[103] If Johnson gave the thinning crew workers directions, they followed the directions, because Johnson occupied a position of authority. See Ohlsen Independent Contractor Response ¶ 10, at 11 (asserting this fact)(citing Videotaped Deposition of Eugene Jiron at 46:14-47:4 (taken September 26, 2018), filed December 19, 2018)(Doc. 97-15)(“E. Jiron Depo. 97-15”); id. at 79:8-14);[104] Ohlsen Independent Contractor Response ¶ 11, at 11 (asserting this fact)(citing J. Jiron Depo. 97-2 at 81:19-82:2; F. Jiron Depo. 97-9 at 49:10-50:3; id. at 98:12-25); Independent Contractor Reply Plaintiffs' § C11, at 17-18 (admitting that Johnson and Lucero inspected the project).[105]

         Lueras inspected the Project site about once a week. See Ohlsen Independent Contractor Response ¶ 13, at 12 (asserting this fact)(citing Delegation at 1; Lueras Depo. 97-29 at 33:8-23; id. at 52:20-23); Independent Contractor Reply Plaintiffs' § C13, at 18-19 (admitting this fact); Ohlsen Response ¶ 12, at 4-5 (asserting this fact); Ohlsen Reply ¶ 12, at 12-13 (admitting this fact). Lueras inspected treatment areas both before and after the thinning crew completed the work to check that the thinning crew followed the prescriptions. See Ohlsen Independent Contractor Response ¶ 13, at 12 (asserting this fact)(citing Delegation at 1; Lueras Depo. 97-29 at 33:8-23; id. at 52:20-23); Independent Contractor Reply Plaintiffs' § C13, at 18-19 (admitting this fact); Ohlsen Response ¶ 14, at 5 (asserting this fact)(citing Lueras Depo. 98-6 at 33:2-17; id. at 35:3-20); Ohlsen Reply ¶ 13-16, at 13 (admitting this fact). After the thinning crew finished a unit, Lueras inspected it to make sure the thinning crew completed the area properly and reported on the site to Johnson. See Ohlsen Independent Contractor Response ¶ 13, at 12 (asserting this fact)(citing Lueras Depo. 97-29 at 35:9-36:2); Independent Contractor Reply Plaintiffs' § C13, at 18-19 (admitting this fact);[106] Ohlsen Response ¶ 15, at 5 (asserting this fact)(citing Lueras Depo. 98-6 at 39:2-16); Ohlsen Reply ¶¶ 13-16, at 13 (admitting this fact). Johnson then “inspected the units and provided an inspection report and corrections, as necessary.” Ohlsen Response ¶ 16, at 5 (asserting this fact)(citing Johnson Depo. 98-3 at 65:6-66:9; id. at 123:11-124:23; id. at 128:20-24). See Ohlsen Reply ¶ 13-16, at 13 (admitting this fact).

         Johnson and Hudson also provided the thinning crew more detailed prescriptions for their work than those prescriptions that the Statements of Work provide and specifically gave the thinning crew additional prescriptions for Treatment Type 1 and 2 units. See Ohlsen Independent Contractor Response ¶ 3, at 6 (asserting this fact)(citing Johnson Depo. 97-1 at 37:17-38:9); Independent Contractor Reply Plaintiffs' § A3, at 9 (admitting this fact).[107] The Statements of Work contain language, for instance, about the treatment units being mapped and their boundaries being marked with orange flags, numbers, and blue flags on the ground. See Statement of Work Original §§ 1(D)-(E), at 349-50.[108] See also Ohlsen Independent Contractor Response ¶ 2, at 4-5 (asserting this fact)(citing Statement of Work § 1(D)-(E), at 349-50);[109] Independent Contractor Reply Plaintiffs' § A2, at 8 (admitting this fact); Ohlsen Motion ¶ 13, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 33, at 8); Sais Motion ¶ 15, at 6 (asserting this fact)(citing Second Fox Decl. ¶ 33, at 8); Ohlsen Response ¶ 13, at 19 (admitting this fact). The mapping designates some units for hand thinning and some units for mastication, and Hudson designated the units. See Ohlsen Independent Contractor Response ¶ 2, at 5 (asserting this fact)(citing Isleta Participating Agreement Units Funded by Modification, filed December 19, 2018 (Doc. 97-8)); Independent Contractor Reply Plaintiffs' § A2, at 8 (admitting this fact).[110] The Forest Service also designated some trees with orange paint, indicating that the thinning crew should not cut those trees. See Ohlsen Independent Contractor Response ¶ 3, at 6 (asserting this fact)(citing F. Jiron Depo. 97-9 at 69:1-13); Independent Contractor Reply Plaintiffs' § A3, at 9 (admitting this fact).[111]Forest Service employees performed the tasks of marking boundaries and trees. See Independent Contractor Motion ¶ 18, at 6 (asserting this fact)(citing First Fox Decl. ¶ 21, at 4; F. Jiron Depo. 76-2 at 108:24-109:17); Ohlsen Independent Contractor Response ¶ 18, at 16 (admitting this fact); Ohlsen Response ¶ 11, at 4 (asserting that the Forest Service designated and marked boundaries and trees to cut)(citing Lueras Depo. 98-6 at 30:19-31:7; Videotaped Deposition of Elaine Kohrman at 101:2-104:23 (taken September 10, 2018), filed December 19, 2018 (Doc. 98- 9)(“Kohrman Depo. 98-9”); Silviculture Prescriptions); Ohlsen Reply ¶ 10 and 11, at 12 (admitting this fact).

         The thinning crew knew where to work and what to do, because the Forest Service marked the boundaries with flags or paint, and because Hudson and Johnson showed the crew the unit and the boundaries on a map and in person, and described the thinning crew's work. See Ohlsen Independent Contractor Response ¶ 2, at 5 (asserting this fact)(citing Johnson Depo. 97-1 at 35:24-36:3; id. at 36:6-37:8; Dixon Depo. 97-6 at 23:8-24:7); Independent Contractor Reply Plaintiffs' § A2, at 8 (admitting this fact).[112] Johnson met with the thinning crew's “foreman and crew at the beginning of work on a unit to discuss boundaries, prescription or scope of work, and guidelines.” Independent Contractor Motion ¶ 37, at 10 (asserting this fact)(citing First Fox Decl. ¶ 22, at 4-5;[113] Johnson Depo. 60-5 at 36:6-38:3; id. at 39:17-40:22; id. at 52:11-54:25; E. Jiron Depo. 76-4 at 46:3-47:4). See Ohlsen Independent Contractor Response ¶ 37, at 19 (admitting this fact).

         The Forest Service did not, however, set the thinning crew's daily schedule; the thinning crew could decide not to work on a certain day if the thinning crew met the specifications for the thinning project. See Ohlsen Motion ¶ 28, at 8-9 (asserting this fact)(citing Second Fox Decl. ¶ 55, at 12); Sais Motion ¶ 32, at 9 (asserting this fact)(citing Second Fox Decl. ¶ 55, at 12).[114] See also Independent Contractor Motion ¶ 60, at 13 (asserting this fact)(citing E. Jiron Depo. 76-4 at 90:16-25; Jaramillo Depo. 76-5 at 92:5-12); Ohlsen Independent Contractor Response ¶ 60, at 21 (admitting this fact).[115] Isleta Pueblo stopped the thinning crew's work “when it was not feasible to work due to fire restrictions or inclement weather of for traditional activities, or during special projects within the Pueblo.” Independent Contractor Motion ¶ 61, at 13 (asserting this fact)(citing F. Jiron Depo. 76-2 at 46:4-15; J. Jiron Depo. 76-3 at 51:11-52:10; E. Jiron Depo. 76-4 at 90:15-25). See Ohlsen Independent Contractor Response ¶ 61, at 21 (admitting this fact).

         The Forest Service did not provide or purchase liability insurance for the thinning work. See Independent Contractor Motion ¶¶ 20-21, at 7 (asserting this fact)(citing First Fox Decl. ¶¶ 15-16, at 3; Participating Agreement ¶¶ III(A)-(D), at 2; Participating Agreement ¶ V(F), at 5); Ohlsen Independent Contractor Response ¶¶ 20-21, at 16 (admitting this fact).[116] Isleta Pueblo “owned and maintained the masticator” that the thinning crew operated on June 14, 2016. Independent Contractor Motion ¶ 26, at 8 (asserting this fact)(citing First Fox Decl. ¶ 12, at 3;[117] Participating Agreement ¶ III(B), at 2; id. ¶ V(S), at 9; Statement of Work Modification 3 §§ 3-4, at 416; J. Jiron Depo. 76-3 at 27:6-28:10; id. at 99:6-11). See Ohlsen Independent Contractor Response ¶ 26, at 17 (admitting this fact).

         The Forest Service also did not offer Forest Service employees to help with the thinning work, and no Forest Service employees performed thinning work -- either hand thinning or masticating. See Independent Contractor Motion ¶ 17, at 6 (asserting this fact)(citing First Fox. Decl. ¶ 19, at 4; F. Jiron Depo. 76-2 at 109:4-7; J. Jiron Depo. 76-3 at 101:21-102:4); Ohlsen Independent Contractor Response ¶ 17, at 15-16 (admitting this fact).[118] Johnson did not provide the thinning crew guidance on operating the masticator, see Independent Contractor Motion ¶ 40, at 10 (asserting this fact)(citing Videotaped Deposition of Aaron Johnson at 111:16-112:1, filed December 19, 2018 (Doc. 76-1)(“Johnson Depo. 76-1”)), [119] although the Statements of Work provide specifications for masticating -- including “maintenance of three to six pieces of large wood debris per acre and a material depth of two to four inches, ” Ohlsen Independent Contractor Response ¶ 40, at 20 (asserting this fact)(citing Statement of Work Modification 3 § 5(C) at 419).[120] Moreover, under the Participating Agreement, Isleta Pueblo had authority to subcontract and “hired a subcontractor to hand-cut trees, remove them from the field, and stack them for fuel wood.” Independent Contractor Motion ¶ 27, at 8 (asserting this fact)(citing Participating Agreement ¶ V(U), at 9; Videotaped Deposition of Frank Jiron at 107:10-25 (dated September 25, 2018), filed November 9, 2018 (Doc. 76-2)(“F. Jiron Depo. 76-2”)). See Ohlsen Independent Contractor Response ¶ 27, at 17 (admitting this fact).

         3. The Events in Unit 4.

         The Forest Service initially designated Unit 4 as a Treatment Type 1 Unit, meaning that the public could gather fuel for firewood from the slash on the ground. See Ohlsen Motion ¶ 18, at 7 (asserting this fact)(citing Second Fox Decl. ¶ 42, at 10); Sais Motion ¶ 22, at 8 (asserting this fact)(citing Second Fox Decl. ¶ 42, at 10); Ohlsen Response ¶ 18, at 20 (admitting this fact); Ohlsen Response ¶ 20, at 5 (citing Johnson Depo. 98-3 at 32:6-18).[121] “The planned treatment on Unit 4 served the objectives of the Isleta Restoration Project, including improving forest health, providing work for USFS partners, and serving the public's interest in obtaining firewood from the Forest.” Ohlsen Motion ¶ 19, at 7 (asserting this fact)(citing Second Fox Decl. ¶¶ 43-44, at 10); Sais Motion ¶ 23, at 8 (asserting this fact)(citing Second Fox Decl. ¶¶ 43-44, at 10). See Ohlsen Response ¶ 19, at 20 (admitting this fact). After the thinning crew first treated Unit 4, the Forest Service approved the thinning crew's work. See Ohlsen Response ¶ 26, at 6 (asserting this fact)(citing Contract Daily Diary (dated July 31, 2015), filed December 19, 2018 (Doc. 98-12); Contract Daily Diary at 1 (dated August 12, 2015), filed December 19, 2018 (Doc. 98-13)(“Contract Daily Diary 98-13”).[122] Following the prescriptions for Treatment Type 1 Units, the Forest Service opened the area to the public to collect firewood, but the public did not gather as much material -- slash -- as anticipated or as necessary to meet the Forest Service's goals. See Ohlsen Motion ¶¶ 20-21 (asserting this fact)(citing Second Fox Decl. ¶¶ 45-46, at 10); Sais Motion ¶¶ 24-25, at 8 (asserting this fact)(citing Second Fox Decl. ¶ 45-46, at 10); Ohlsen Response ¶ 20-21, at 20 (admitting this fact).

         Because of the heavy fuel load[123] in Unit 4 following these events, about a year before the Dog Head Fire, the Forest Service had concerns about performing a prescribed burn[124] in the treatment unit. See Ohlsen Response ¶ 21, at 6 (asserting this fact)(citing Video Deposition Martinez at 24:10-25:16 (taken November 27, 2018), filed December 19, 2018 (Doc. 98-4)(“Martinez Depo. 98-4”); id. at 26:12-17; id. at 27:1-4; id. at 27:12-28:9).[125] The Forest Service did not complete a prescribed burn in the unit. See Ohlsen Response ¶ 25, at 6 (asserting this fact)(citing Johnson Depo. 98-3 at 45:2-46:14).[126] Johnson testified that the Forest Service did not pile and burn the slash, because such an undertaking was too expensive. See Ohlsen Response ¶ 33, at 7 (asserting this fact)(citing Johnson Depo. 98-3 at 46:19-20).[127] The cost of a prescribed burn is around $75.00 to $150.00 per acre. See Ohlsen Response ¶ 33, at 7 (asserting this fact)(citing Fox Depo. at 31:13-24).[128] The Forest Service reimbursed Isleta Pueblo $600.00 per acre for mastication. See Ohlsen Response ¶ 33, at 7 (asserting this fact)(citing Participating Agreement ¶ IV(D), at 3).[129]

         The Forest Service knows that green slash, after it falls, dries, becomes harder, and is more likely to catch fire. See Ohlsen Response ¶¶ 31-32, at 7 (asserting this fact)(citing Johnson Depo. 98-3 at 19:16-20:10).[130] In March, 2016, the Forest Service prioritized masticating the fuel loads in Unit 4. See Ohlsen Response ¶ 22, at 6 (asserting this fact)(citing Videotaped Deposition of Mark Dixon at 64:6-17 (taken November 29, 2018), filed December 19, 2018 (Doc. 98-2)(“Dixon Depo. 98-2”); id. at 65:18-66:14).[131] The mastication effort was intended to reduce the risk of wildfire. See Ohlsen Motion ¶ 27, at 8 (asserting this fact)(citing Second Fox Decl. ¶ 52, at 11); Sais Motion ¶ 31, at 9 (asserting this fact)(citing Second Fox Decl. ¶ 52, at 11); Ohlsen Response ¶ 27, at 21-22 (admitting this fact).

         On June 14, 2016, no Forest Service employees were at Unit 4. See Independent Contractor Motion ¶ 47, at 11 (asserting this fact)(citing First Fox Decl. ¶ 20, at 4; J. Jiron 76-3 at 27:6-28:10; E. Jiron Depo. 76-4 at 91:1-92:2; Jaramillo Depo. 76-5 at 9:18-10:7); Ohlsen Independent Contractor Response ¶ 48, at 20 (admitting this fact). E. Jiron, J. Jiron, and Jaramillo were the only individuals at Unit 4, although, when the fire started, E. Jiron, an equipment operator, and Jaramillo were standing near the service truck, 500 to 600 feet away from the masticator. See Independent Contractor Motion ¶ 47, at 11 (asserting that E. Jiron, J. Jiron, and Jaramillo were at Unit 4)(citing First Fox Decl. ¶ 20, at 4; J. Jiron Depo. 76-3 at 27:6-28:10; E. Jiron Depo. 76-4 at 91:1-92:2; Jaramillo Depo. 76-5 at 9:18-10:7).[132] See Ohlsen Independent Contractor Response ¶ 47, at 20 (asserting that J. Jiron operated the masticator alone, and that E. Jiron and Jaramillo were near the service truck)(citing J. Jiron Depo. 97-2 at 33:21-34:3).[133] E. Jiron was the most senior member of the thinning crew on the site, see Independent Contractor Motion ¶ 56, at 12 (asserting this fact)(citing E. Jiron Depo. 76-4 at 91:1-92:2); Ohlsen Independent Contractor Response ¶ 56, at 21 (admitting this fact), but J. Jiron was driving the masticator alone, see Independent Contractor Motion ¶ 50, at 11 (asserting this fact)(citing E. Jiron 76-4 at 27:6-30:12); Ohlsen Independent Contractor Response ¶ 50, at 21 (admitting this fact). When J. Jiron first saw the fire, it was several square feet in size, and he did not believe that he could safely extinguish it. See Ohlsen Response ¶¶ 62-64, at 14 (asserting this fact)(citing J. Jiron Depo. 97-2 at 30:23-32:3; Report of Investigation at 1).[134] This fire became the Dog Head Fire that injured the Plaintiffs.

         4. Fire and Equipment Safety.

         The thinning site had a high fire risk, see Ohlsen Response ¶ 2, at 3 (asserting this fact)(citing Johnson Depo. 98-3 at 23:24-24:3); Ohlsen Reply ¶ 2, at 10 (admitting this fact). A risk of fire existed everywhere in the treatment area, including Unit 4. See Ohlsen Response ¶ 51, at 11 (asserting this fact)(citing Kohrman Depo. 98-9 at 83:22-84:1).[135] The Forest Service knew that heavy equipment, like a masticator, could start a fire. See Ohlsen Response ¶ 37, at 8 (asserting this fact)(citing Lueras Depo. 98-6 at 46:21-47:14; Johnson Depo. 98-3 at 16:20-17:14).[136]

         The operating manual for the masticator instructs that, should a fire start, the masticator operator should stop the masticator, extinguish the fire with a fire extinguisher if possible, make sure the fire does not spread, and request help. See Ohlsen Response ¶ 62, at 13 (asserting this fact)(citing Operator Manual Crawler Tractor RT400 at 36, filed December 19, 2018 (Doc. 98-29)).[137] Moreover, a person should receive special training before operating the masticator. See Ohlsen Response ¶ 67, at 14 (asserting this fact)(citing Videotaped Deposition of Eugene Jiron at 12:13-19 (September 26, 2018), filed December 19, 2018)(Doc. 98-14)(“E. Jiron Depo. 98-14”); id. at 62:17-63:8).[138] E. Jiron received the training to operate the masticator, but could not properly train someone else, and J. Jiron did not receive formal training on the masticator. See Ohlsen Response ¶ 68, at 14 (citing E. Jiron 98-14 at 12:13-19; id. at 91:19-21; J. Jiron Depo. 98-18 at 39:6-17; id. at 44:19-21).[139] When the masticator was inspected after the Dog Head Fire, several broken teeth were discovered. See Ohlsen Response ¶ 38, at 8 (asserting this fact)(citing Dixon Depo. 98-2 at 209:16-23).[140]

         Fox and Johnson had the responsibility of ensuring that Isleta Pueblo had the required fire equipment. See Ohlsen Independent Contractor Response ¶ 28, at 17 (asserting “[i]t was the job of the USFS Project Administrator to ensure the project workers had the firefighting tools on the job required by the Statement of Work Supplements”)(citing Kohrman Depo. 97-4 at 205:22-24); Independent Contractor Reply Def.'s UMF No. 28, at 25 (asserting this fact)(citing Kohrman Depo. 97-4 at 205:13-24).[141] The Statements of Work contain a “detailed plan for emergencies and fires, and Johnson would speak with the thinning crew when it began a new unit about the restrictions in effect and the equipment necessary.” Ohlsen Independent Contractor Response ¶ 8, at 7 (asserting this fact)(citing Statement of Work Original § 11, at 364-68; Johnson Depo. 97-1 at 57:20-58:1); Independent Contractor Reply Plaintiffs' § A8, at 11 (admitting this fact).[142]

         Additionally, the Statements of Work require that the thinning crew have “[o]ne shovel, one axe . . . and a fully charged fire extinguisher . . . on each truck, personnel vehicle, tractor, grader and other heavy equipment.” Statement of Work Original § 11(b), at 365. Ohlsen Response ¶ 55, at 12 (asserting this fact)(citing Statement of Work Original § 11(b), at 365).[143] The Statements of Work also recommend

that a sealed box of tools be located within the operating area at a point accessible in the event of fire. This fire tool box should at a minimum contain:
1. One 5-gallon, backpack pump-type fire extinguisher filled with water.
2. Two axes 3. Two McLeod fire tools.[144]
4. One serviceable chain saw of three and one-half or more horsepower with a cutting bar 20 inches in length or longer 5. Sufficient number of shovels so that each employee at the operation can be equipped to fight fire.
6. The Partner should make available this box of firefighting tools for use at location(s) of the work. The fire toolbox shall remain unlocked, but should be sealed to prevent use for other than emergency use only.

Statement of Work Modification 3 § 11(b), at 428; Statement of Work Original § 11(b), at 365. See Ohlsen Response ¶ 56, at 12 (asserting this fact regarding Statement of Work Modification 3)(citing Statement of Work Modification 3 § 11(B), at 428);[145] Ohlsen Response ¶ 58, at 13 (asserting this fact regarding the Statement of Work Original)(citing Statement of Work Original § 11(b), at 365).[146] Although Johnson observed firefighting tools in the thinning crew's trucks, Johnson did not inspect the equipment, including the number of each item or the items' conditions. See Ohlsen Response ¶ 59, at 13 (asserting this fact)(citing Johnson Depo. 98-3 at 135:24-138:25); Ohlsen Reply ¶ 59, at 27 (asserting this fact)(citing Johnson Depo. 98-3 at 136:15-138:3).[147]

         The Forest Service determines when to enter fire restrictions. See Ohlsen Independent Contractor Response ¶ 28, at 17 (citing Statement of Work Original § 11, at 366-68; Kohrman Depo. 97-4 at 117:15-121:6).[148] See also Ohlsen Independent Contractor Response ¶ 11, at 14 (asserting this fact)(citing Statement of Work Original § 11, at 366-68; Kohrman Depo. 97-4 at 117:15-121:6; id. at 205:22-24).[149] Before the Dog Head Fire occurred, the Forest Service Mountainair District was in the process of entering Stage I restrictions. See Ohlsen Response ¶ 46, at 10 (asserting this fact)(citing Martinez Depo. 98-4 at 58:10-25).[150] The Forest Service enters Stage I restrictions when the Energy Release Component (“ERC”)[151] is eighty-five percent or higher, and other considerations counsel toward entering restrictions, and, like Stage II restrictions, which are entered when the ERC is ninety-percent or higher, Stage I restrictions require a fire guard at the mastication site. See Ohlsen Response ¶ 47, at 10 (asserting Stage I restrictions are entered when the ERC is eighty-five percent or higher)(citing Cibola National Forest and Grasslands Fire Danger Operating Plan at 5-7, filed December 19, 2018 (Doc. 98-25)(“Fire Plan”)); Ohlsen Reply ¶ 47, at 24 (asserting Stage I restrictions are entered when the ERC is 85% or higher, and other conditions counsel toward entering restrictions)(citing Fire Plan at 6).[152] The Statements of Work outline the same rules for fire restrictions and state that Isleta Pueblo would provide the fire guard should the Forest Service enter fire restrictions. See Ohlsen Response ¶ 48, at 10 (asserting this fact)(citing Statement of Work Original § 11, at 364-68).[153]

         The Forest Service did not enter Stage I restrictions on or before June 14, 2016, but the Forest Service entered Stage II restrictions on June 15, 2016. See Ohlsen Response ¶ 49, at 10 (asserting this fact)(citing Martinez Depo. 98-4 at 61:16-18); Ohlsen Reply ¶ 49, at 25 (admitting this fact). The Southwest Interagency Fire Restrictions and Closure Master Operating Plan at 16 (dated 2014), filed December 19, 2018 (Doc. 98-26), states that “operating any internal combustion engine” is prohibited during Stage II restrictions. Ohlsen Response ¶ 50, at 11 (asserting this fact).[154]

         “The Mountainair Ranger District has two subunits: the Manzano Mountains and Gallinas, ” which both contain several ecosystems. See Ohlsen Response ¶ 70, at 15 (asserting that the Mountainair Ranger District has two subunits)(citing Lueras Depo. 98-6 at 14:5-10); Ohlsen Response ¶ 71, at 15 (asserting that the subunits contain multiple ecosystems)(citing Lueras Depo. 98-6 at 17:8-19:10).[155] Within an area, every ten miles might have different environmental conditions. See Ohlsen Response ¶ 72, at 15 (asserting this fact)(citing Lueras Depo. 98-6 at 31:21-32:4; Martinez Depo. 98-4 at 70:22-25).[156] Before the Dog Head Fire, the Forest Service had no “site-specific fuel moisture sample sheets” for Unit 4, but, after the fire, the Forest Service developed a form to monitor. See Ohlsen Response ¶ 73, at 15 (asserting this fact)(citing Martinez Depo. 98-4 at 71:8-19; id. at 116:2-18; id. at 87:1-88:3).[157]

         The Forest Service has two fire engines, with four-wheel drive, capable of carrying 300 gallons of water, staffed with five people, and capable of going off-road. See Ohlsen Response ¶ 41, at 9 (asserting this fact)(citing Martinez Depo. 98-4 at 44:8-21; id. at 48:12-13; id. at 50:12-14).[158] The fire engines patrol areas with fire risks and a public presence. See Ohlsen Response ¶ 41, at 9 (asserting this fact)(citing Martinez Depo. 98-4 at 47:19-23).[159] In determining fire suppression activities, the Forest Service considers the “safety of firefighters, suppression costs, resource loss, environmental damages, threat of wildland fire escaping onto non-Federal lands, availability of suppression resources; values of the natural resources and property at risk.” C De Baca Motion ¶¶ 4, at 3-4 (asserting this fact)(citing Declaration of Anthony Martinez ¶¶ 41-43, at 7 (dated October 30, 3018), filed November 5, 2018 (Doc. 64-1)(“Martinez Decl.”).[160]

         Additionally, before the fire, Anthony Martinez, Forest Service Fire Management Officer, see Ohlsen Response ¶ 43, at 9 (asserting this fact), [161] spoke with Dixon at annual cooperator meetings and throughout the year, generally on the telephone, about updates on the forest area, including information about fires. See Ohlsen Response ¶ 54, at 12 (asserting this fact)(citing Martinez Depo. 98-4 at 98:2-99:25).[162]

         PROCEDURAL BACKGROUND

         The Court has consolidated C De Baca v. United States of America, No. 17-1661 JB\KK; Cianchetti v. United States of America, No. CIV 17-1186 JB\KK; Ohlsen v. United States of America, No. CIV 18-0096 JB\KK; State Farm Fire and Casualty Co. v. United States, No. CIV 18-0367 JB\KK; Homesite Indemnity Co. v. United States, No. CIV 17-1233 JB\SCY; and Sais v. United States, No. CIV 18-0496 JB\JHR. See Order Granting Unopposed Motion to Consolidate at 1, filed June 5, 2018 (Doc. 20); Order Granting Motion to Consolidate at 2, filed November 5, 2018 (Doc. 69). In this Procedural Background section, the Court briefly discusses the Ohlsen Plaintiffs', C De Baca's, Cianchetti's, and the Sais Plaintiffs' notices of claims. It then addresses the claims in each case consolidated into this matter. Where the complaints raise the same claims in the same language, the Court discusses the claims together. The Court then turns to the motions that are the subject of this Memorandum Opinion and Order.

         1. C De Baca's and Cianchetti's Notices of Claim.

         C De Baca “filed a supplemental notice of claim on her behalf with the USDA on April 25, 2017.” C De Baca Motion ¶ 1, at 3 (citing Declaration of Merlina N. Valdez ¶ 3, at 1 (taken September 20, 2018), filed November 2, 2018 (Doc. 63)(“First Valdez Decl.”). See C De Baca Response ¶ 1, at 2. On May 28, 2017, Cianchetti filed his notice of claim. See C De Baca Motion ¶ 2, at 3 (citing First Valdez Decl. ¶ 4, at 1); C De Baca Response ¶ 2, at 3. The Claim for Damage, Injury, or Death (dated January 31, 2017), filed December 19, 2018 (Doc. 100-1)(“C De Baca Notice of Claim”), and the Claim for Damage, Injury, or Death (dated May 22, 2017), filed December 19, 2018 (Doc. 100-2)(“Cianchetti Notice of Claim”), state: “As a result of negligent operation of equipment, and/or negligence in commencing fire suppression activity, the Dogs Head Fire commenced and spread. Claimant suffered a loss of all real and personal property due to this fire.” C De Baca Notice of Claim at 4; Cianchetti Notice of Claim at 4. See C De Baca Motion ¶ 3, at 3; C De Baca Response ¶ 3, at 3. C De Baca attaches to the C De Baca Notice of Claim form a chart of her damages, a narrative of the harms the Dog Head Fire caused her, and a description of her home that burned in the fire. See C De Baca Notice of Claim at 6-10. Cianchetti likewise attaches to the Cianchetti Notice of Claim a chart of his damages, a narrative of the harms that he suffered, an Affidavit with Torrance County describing his damages, the U.S. Dep't of Agri., Dog Head Fire Report at 5-11, 14-18 (2016), filed December 19, 2018 (Doc. 100-2)(“Dog Head Fire Report”)[163], and two news articles on the Dog Head Fire: (i) Rich Nathanson, Brush Clearing Effort Triggered Devastating Dog Head Fire, Albuquerque Journal (July 1, 2016), filed December 19, 2018 (Doc. 100-2); and (ii) Todd G. Dickson, Dog Head Report Finds Fault with Crew, Procedures, MVTelegraph (Oct. 14, 2016), filed December 19, 2018 (Doc. 100-2). See Cianchetti Notice of Claim at 5-35.

         2. The Sais Plaintiffs' Notices of Claim.

         On October 23, 2017, the Sais' filed a notice of claim with the United States Department of Agriculture. See Ohlsen Motion ¶ 1, at 3 (citing First Valdez Decl. ¶ 6, at 2; Claim for Damage, Injury, or Death (dated October 20, 2017), filed November 2, 2018 (Doc. 63-4)(“Sais Notice of Claim”)). The Apodacas filed a notice of claim with the Agriculture Department on November 20, 2017. See Ohlsen Motion ¶ 2, at 3 (citing First Valdez Decl. ¶ 5, at 1-2; Claim for Damage, Injury, or Death (dated November 15, 2017), filed November 2, 2018 (Doc. 63-3)(“Apodaca Notice of Claim”)). Sorroche likewise filed a notice of claim with the Agriculture Department on May 25, 2018. See Ohlsen Motion ¶ 3, at 3 (citing Second Declaration of Merlinda N. Valdez ¶ 9, at 2, filed November 15, 2018 (Doc. 79)(“Second Valdez Decl.”); Claim for Damage, Injury, or Death (dated May 24, 2018), filed November 15, 2018 (Doc. 79-4)(“Sorroche Notice of Claim”)). Each notice of claim states: “As a result of negligent operation of equipment, and/or negligence in commencing fire suppression activity, the Dogs Head Fire commenced and spread. Claimant suffered a loss of real . . . property due to this fire.” Sais Notice of Claim at 1 (stating “real and personal property” instead of “real property”); Apodaca Notice of Claim at 1 (stating “real, personal and business property” instead of “real property”); Sorroche Notice of Claim at 1 (stating only “real property”)(collectively, the “Sais Plaintiffs' Notice of Claim”).

         3. The Ohlsen Notice of Claim.

         In their various notices of claims, [164] the Ohlsen Plaintiffs allege:

(1.) The Dog Head Fire started on June 14, 2016, and quickly got out of control, burning over 17, 000 acres and causing the damage alleged in this claim.
(2.) The fire started on Forest Service land in the Cibola or Mountain Air Ranger Districts, south of Albuquerque, New Mexico. The land where the Dog Head Fire was ignited was a public place and open to the public.
(3.) The fire was the result of mechanical mastication operations being conducted in a fire prone area with a nearby history of recent wildfire.
(4.) The mastication operations were being conducted by a crew of a contractor which had been contracted to perform fuel reduction work by one or more agencies or partners involved in or by a partnership known as the “Isleta Collaborative Landscape Restoration Project, ” of which the USFS, [Natural Resources Conservation Service (‘‘NRCS'[165], [Bureau of Indian Affairs (‘BIA')[166], and other groups and agencies are participants and partners. . . . The agency which is the subject of this claim directed and/or approved the conduct which caused the fire and each agency was the agent of the other partners and participants in the Project and/or of the Project itself acting within the scope of its agency.
(5.) The fuel reduction project had been ongoing several years before the fire.
(6.) At the direction and/or approval of an agent or employee of the agency named in this claim, and/or by the contract with the agency or with the Project, the crew(s) thinned trees and left for years piles of slash (woody debris) and bole (tree trunks) in the forest in the area where the fire ignited. Given the long-standing drought conditions in New Mexico and the previous fires in the area, it was both foreseeable and known to the Project and the agency named in this claim the piles of slash and bole would quickly dry and pose a major fire hazard if ignited in any manner.
(7.) At the direction and/or approval of an agent or employee of the Project and/or agency named in this claim, and/or by the contract with the agency or with the Project, the contractor and crew were directed and/or approved to masticate the piles of dry slash and bole using the subject mechanical masticator.
(8.) The mechanical masticator involved in the ignition of the fire is a piece of heavy machinery, which uses large metal teeth to grind trees, bole, and slash. It was foreseeable and known by the Project and the agency named in this claim that leaking hot fluids or sparks from the masticator's teeth striking rocks or metal are capable of starting fires. In public statements, the USFS has stated the fire was ignited by sparks from the masticator striking a rock(s).
(9.) The mastication operation causing the fire was being performed in June, which the Project and agency named in this claim knew was New Mexico's fire season, and was being performed in hot, dry, and windy conditions. Only five years before, in June 2011, the Las Conchas Fire was started by an electric line in the Jemez Mountains. The fire rapidly spread out of control, burned 245 square miles in over five weeks, and caused massive damage. This fire and others in New Mexico during the months June-September were highly publicized throughout the state.
(10.) The Project and the agency named in this claim directed, approved, knew, and/or failed to prevent the mechanical mastication of very dry piles of slash and bole during the fire season and in dry, hot and windy conditions in an area with a recent history of wildfires.
(11.) The Project and agency named in this claim did not reasonably employ a competent and careful contractor to perform the work and did not train, direct, or supervise the contractor and crew with regard to fire danger evaluation, proper operational procedures, fire prevention, and fire suppression procedures and techniques. Accordingly, the masticator was operated at an unreasonable time during fire season, in unreasonable conditions of rocky soil and very dry slash and bole, and in an unreasonable manner, resulting in the ignition of the fire. Public statements by the USFS indicate the crew did not attempt to suppress the fire in its very small incipient state, but rather they removed the masticator to safety and called in the fire department.
(12.) The fire suppression equipment required by the Project and agency named in this claim to be on hand during the mastication operation was insufficient to suppress the fire in its incipient state. The Project and agency named in this claim unreasonably did not require any equipment be on hand to put out an incipient fire in slash or wood.
(13.) The Project and agency named in this claim failed to reasonably exercise its retained control of the work being performed, resulting in the ignition of the fire.
(14.) The Project and agency named in this claim had a special relationship with the public and nearby property owners, and the work of mastication by heavy machinery during fire season of dry slash and bole was inherently dangerous, creating a peculiar risk of harm by fire to claimants and others. The Project and agency named in this claim failed to take reasonable precautions as to these contractor operations, thereby causing the fire.
By these acts, and others presently unknown to claimants, the Project and agency named in this claim negligently caused the Dog Head Fire, which caused the damages as set forth below.

Claim for Damage, Injury, or Death at 3-4 (dated January 10, 2018), filed December 19, 2018 (Doc. 98-32)(“Ohlsen Notice of Claim”).

         4. C De Baca's, Cianchetti's, and the Sais Plaintiffs' Claims.

         C De Baca, Cianchetti and the Sais Plaintiffs bring negligence claims against the United States. See C De Baca Complaint ¶¶ 36-50, at 5-7; Cianchetti v. United States of America, No. CIV 17-1186 JB\KK, Plaintiff's Complaint for Negligence Arising Under the Federal Tort Claims Act ¶¶ 30-44, at 4-6, filed December 1, 2017 (Doc. 1)(“Cianchetti Complaint”); Sais v. United States, No. CIV 18-0496 JB\JHR, Plaintiff's Amended Complaint for Negligence Arising under the Federal Tort Claims Act ¶¶ 55-69, at 7-9, filed November 6, 2018 (Doc. 16)(“Sais Complaint”). They allege that: (i) the Forest Service did not “ensure that the equipment, its employees, and agents used was in good working order, and/or was the proper equipment for the terrain, ” C De Baca Complaint ¶ 40, at 5; Cianchetti Complaint ¶ 34, at 4-5; Sais Complaint ¶ 62, at 8; (ii) the Forest Service did not “provide proper fire extinguishment tools for the 3-man crew working the masticator, ” C De Baca Complaint ¶ 41, at 5; Cianchetti Complaint ¶ 35, at 5; Sais Complaint ¶ 63, at 8; (iii) the Forest Service “declined first responders access to Department of Agriculture maintained forest property. Defendant through its employees and agents directed first responders to take no action to contain or quash the initial fire, despite the ability to put the fire out, ” C De Baca Complaint ¶ 43, at 6; Cianchetti Complaint ¶ 37, at 5; Sais Complaint ¶ 63, at 8; and (iv) the Forest Service had “not properly maintained or fulfilled forest management responsibilities, the area in which the fire occurred had a high amount of unmanaged undergrowth and low forest fuels, ” C De Baca Complaint ¶ 45, at 6; Cianchetti Complaint ¶ 39, at 5; Sais Complaint ¶ 68, at 9. The Sais Plaintiffs additionally allege that the Forest Service “produced and negligently left on the ground, for a period of years, slash and boles produced by forest thinning operation where the fire started, ” Sais Complaint ¶ 30, at 5; “[p]roduc[ed] and [left] slash and boles on the ground for several years permitt[ing] them to harden and become dry fuel for fire, ” Sais Complaint ¶ 31, at 5; “did not reasonably employ competent individuals to perform the mastication work, ” Sais Complaint ¶ 36, at 5; and “had a duty to train, instruct, direct, and/or supervise the individuals and crews performing forest thinning and mastication with regard to fire danger evaluation, proper operational procedures, fire prevention, and immediate fire suppression techniques, ” Sais Complaint ¶ 64, at 8.

         5. The Ohlsen Plaintiffs' Claims.

         The Ohlsen Plaintiffs bring three claims against the United States. See Ohlsen Complaint ¶¶ 21-39, at 6-8. The Ohlsen Plaintiffs first bring a negligence claim in which they allege that the Forest Service

failed to exercise ordinary care in the hiring of a careful and competent contractor, the training and direction of the contractor and forest thinning crew, the control each Defendant retained over the forest thinning operations, the conduct of the forest thinning operations, and the failure to suppress the fire, which caused the Dog Head Fire.

         Ohlsen Complaint ¶ 23, at 6. The Ohlsen Plaintiffs allege, among other things, the United States liability for the Forest Service's

• Employing inappropriate contractor for the forest thinning project;
• Failing to train, instruct, direct, and/or supervise the contractor;
• Leaving slash and boles produced by prior forest thinning operations on the forest floor;
• Allowing forest thinning and mastication under unsuitable conditions (rocky landscape, dry slash and bole on forest floor, and hot, dry, and windy conditions);
• Failing to use available fire suppression resources;

         Ohlsen Motion ¶ 2, at 3-4 (citing Ohlsen Complaint ¶¶ 10, 16-19, 20, 23, at 3-6). The Ohlsen Plaintiffs further allege that “it was fire season in New Mexico, and the masticator can cause sparks while it is in operation.” Ohlsen Response ¶ 2, at 18 (citing Ohlsen Complaint ¶¶ 10, 17, 18, 20, at 3, 5).

         The Ohlsen Plaintiffs next bring a non-delegable duty claim in which they argue that: (i) the Forest Service employed a contractor for forest thinning operations; (ii) the Forest Service was aware of special dangers associated with the operations; (iii) the Forest Service had a non- delegable duty to take reasonable precautions to avoid such dangers; and (iv) the Forest Service failed to take reasonable precautions against such dangers. See Ohlsen Complaint ¶¶ 28-30, at 6-7. Last, the Ohlsen Plaintiffs allege that the United States is liable under res ipsa loquitur, because

35. The harm to Plaintiffs was caused by the forest thinning operation in the Cibola National forest which was the responsibility of Defendants to manage and control.
36. The fire which caused harm to Plaintiffs was of a kind which does not ordinarily occur in the absence of negligence on the part of Defendants in control of the forest thinning operations in the Cibola National Forest.
37. The negligence of Defendants, and each of them, caused the Dog Head Fire, which harmed Plaintiffs' real and personal property.

         Ohlsen Complaint ¶¶ 35-37, at 7.

         6.The State Farm Plaintiffs' Claims.

         The State Farm Plaintiffs also bring three claims against the United States. See State Farm Complaint ¶¶ 24-49, at 7-10. The State Farm Plaintiffs bring first a claim for negligence in which they allege that the Forest Service committed several negligent acts or omissions:

a. Negligently failing to properly train, instruct, direct, and/or supervise their forestry crew with regard to fire hazards, fire prevention, and fire suppression as well as to proper heavy machinery operating procedures; and
b. Negligently employing a contractor that failed to properly train, instruct, direct, and/or supervise their forestry crew with regard to fire hazards, fire prevention, and fire suppression as well as to proper heavy machinery operating procedures;
c. Negligently allowing for accumulated slash and boles to harden, dry and transform into an abundant dead vegetative fuel load for fire;
d. Negligently conducting forest thinning and mechanical mastication during the New Mexico wildfire season;
e. Negligently operating mastication machinery on rocky terrain at a time of elevated fire risk;

and that the Forest Service was “otherwise negligent.” State Farm Complaint¶ 30 (a)-(f), at 8. The State Farm Plaintiffs next bring a claim for res ipsa loquitur and allege that:

35. The Wildfire was the type of event which does not occur in the absence of negligence.
36. The Wildfire and subsequent damage was caused by the forest thinning and mechanical mastication operations conducted as part of the Isleta Project.
37. The forest thinning and mechanical mastication operations were under the exclusive management and control of the Defendants and were not due to any voluntary action or contribution on the part of the Plaintiffs.

State Farm Complaint ¶¶ 35-37, at 9. Last, the State Farm Plaintiffs bring a non-delegable duty claim in which they allege:

42. Defendants contracted with Isleta Pueblo and/or its forestry crew to conduct forest thinning and mechanical mastication operations.
43. Defendants knew or should have known that these operations involved a peculiar risk and/or special danger of harm to others unless reasonable precautions were taken to guard against risk of wildfire.
44. Defendants had a non-delegable duty to ensure that reasonable precautions were taken with regard to fire hazards, fire prevention, fire suppression as well as employing proper heavy machinery operating procedures.
45. Defendants failed to take reasonable precautions with regard to fire hazards, fire prevention, fire suppression and/or employing proper heavy machinery operating procedures.

State Farm Complaint ¶¶ 42-45, at 9-10.

         7. Homesite Indemnity's Claims.

         Last, Homesite Indemnity brings a negligence claim against the United States in which it alleges that the Forest Service committed a series of negligent actions:

(a) carelessly and negligently operating a masticator;
(b) operating a masticator in a manner that resulted in a fire;
(c) operating a masticator when Defendants knew or should have known that there were rocks present in the area and that striking a rock can cause a fire;
(d) operating a masticator near highly-combustible materials;
(e) acting in a manner that caused a fire;
(f) failing to prevent a fire from spreading;
(g) failing to keep the necessary fire-prevention equipment and personnel at the subject work site;
(h) operating a masticator in a negligent manner;
(i) failing to pay attention to the surrounding area and conditions when operating a masticator;
(j) using a masticator when it was unsafe to do so;
(k) failing to take evasive measures to avoid striking a rock while operating a masticator;
(1) failing to hire, train, select, and supervise their employees, workers and contractors with care; and/or
(m) violating, and/or failing to comply with, applicable rules, codes, laws, regulations, and industry standards.

Homesite Indemnity Co. v. United States, No. CIV 17-1233 JB\KK, Complaint ¶ 25(a)-(m), at 5, filed December 15, 2017 (Doc. 1)(“Homesite Complaint”).

         8. The Independent Contractor Motion.

         The United States asks that the Court dismiss for lack of subject-matter jurisdiction the portions of the C De Baca Complaint, the Cianchetti Complaint, the Sais Complaint, the Ohlsen Complaint, the State Farm Complaint, and the Homesite Complaint alleging Isleta Pueblo negligence in operating the thinning operations, because the FTCA's independent contractor exception divests the Court of subject-matter jurisdiction. See Independent Contractor Motion at 2. The United States requests that, in the alternative, the Court grant the United States summary judgment on grounds that the independent contractor exception precludes the Plaintiffs' liability. See Independent Contractor Motion at 2. According to the United States, the Court should treat the United States' rule 12(b)(1) of the Federal Rules of Civil Procedure motion as a rule 12(b)(6) of the Federal Rules of Civil Procedure motion or a rule 56 of the Federal Rules of Civil Procedure motion. See Independent Contractor Motion at 13. The United States explains that it will face essentially the same burden under rule 12(b)(6) that it will face under rule 56 -- proving the Court's lack of subject-matter jurisdiction by a preponderance of the evidence. See Independent Contractor Motion at 13 n.6.

         The United States takes the position that Isleta Pueblo is an independent contractor. See Independent Contractor Motion at 17. The United States applies the factors that the United States Court of Appeals for the Tenth Circuit articulated in Lilly v. Fieldstone, 876 F.2d 857 (10th Cir. 1989)(“Lilly"):

(1) the intent of the parties; (2) whether the United States controls only the end result or may also control the manner and method of reaching the result; (3) whether the person uses her own equipment or that of the United States; (4) who provides liability insurance; (5) who pays social security tax; (6) whether federal regulations prohibit federal employees from performing such contracts; and (7) whether the individual has authority to subcontract to others.

         Independent Contractor Motion at 17 (quoting Woodruff v. Covington, 389 F.3d 1117, 1126 (10th Cir. 2004)). The United States indicates that the statutory authority under which the Forest Service and Isleta Pueblo entered the Participating Agreement indicates the Forest Service's and Isleta Pueblo's intents for Isleta Pueblo to work as an independent contractor. See Independent Contractor Motion at 17. The United States explains that the CFDA provides the authority under which the United States and Isleta Pueblo entered the Participating Agreement. See Independent Contractor Motion at 18. According to the United States, the language in the CFDA's § 565a-1 reflects that an independent contractor relationship exists unless the parties agree otherwise under § 565a-2. See Independent Contractor Motion at 18. The United States indicates that the Forest Service and Isleta Pueblo did not agree that the Forest Service would supervise the thinning crew but instead agreed that the thinning crew would work without Forest Service supervision. See Independent Contractor Motion at 18. The United States contends that, given the number of contracts that the Forest Service enters with third parties to manage the Cibola National Forest alone, Congress could not have intended to waive sovereign immunity whenever the Forest Service enters a contract under the CFDA's authority. See Independent Contractor Motion at 18. The United States directs the Court to Tsosie v. United States, 452 F.3d 1161, 1163 (10th Cir. 2006), in which the Tenth Circuit states “that a provision providing an option for FTCA coverage for practitioners recognized that there would be instances practitioners would not be covered.” Independent Contractor Motion at 18.

         The United States contends that the Participating Agreement's plain language also manifests the Forest Service's and Isleta Pueblo's intents to have an independent contractor relationship. See Independent Contractor Motion at 18. The United States avers that the Participating Agreement states that the thinning crew workers would not be federal employees and that Isleta Pueblo would supervise the thinning crew. See Independent Contractor Motion at 18. The United States contends that the Participating Agreement reveals that the Forest Service and Isleta Pueblo contemplated Isleta Pueblo directing the thinning crew, providing training and payroll, and maintaining the thinning crew's work environment. See Independent Contractor Motion at 19. According to the United States, the Participating Agreement shows that the Forest Service and Isleta Pueblo intended that the Forest Service would inspect the thinning crew's work and designate where within the Cibola National Forest the thinning crew would work. See Independent Contractor Motion at 19-20.

         The United States turns to the second Lilly factor and argues that Isleta Pueblo “controlled the manner and method of reaching the goals of the thinning projects and the United States controlled the end-result.” Independent Contractor Motion at 20. The United States directs the Court to the Participating Agreement and the Statements of Work for evidence that Isleta Pueblo controlled the thinning crew's daily operations. See Independent Contractor Motion at 20. The United States describes that Dixon administered the Participating Agreement but that Isleta Pueblo's employees F. Jiron and Zuni oversaw the thinning crew's daily work. See Independent Contractor Motion at 20. The United States describes that Isleta Pueblo had responsibility for “contributing personnel and managing employees so that the work described in the Statement of Work Supplements was completed to specifications; training, instructing, directing, and supervising those employees; providing equipment; maintaining work environments and procedures to safeguard Tribal, public, and USFS interests; timekeeping; paying salaries; and setting work schedules.” Independent Contractor Motion at 20. According to the United States, Isleta Pueblo decided when the thinning crew should stop work, and only the thinning crew was present at the thinning project site on June 14, 2016. See Independent Contractor Motion at 20. The United States explains that the Forest Service recorded the thinning crew's progress, designated work areas, provided guidelines and feedback on how the thinning crew accomplished the Participating Agreement's goals, and reimbursed Isleta Pueblo. See Independent Contractor Motion at 21. The United States explains that, in performing the Forest Service's oversight duties, Johnson “would occasionally meet with the crew to discuss boundaries, guidelines, scope of work, and prescriptions at the beginning of a unit, and visit the Pueblo's worksite to the extent necessary to ensure compliance with the specifications set forth in the Statement of Work Supplements [(Statements of Work)].” Independent Contractor Motion at 21. See id. at 21-22.

         The United States continues to the third Lilly factor and notes that Isleta Pueblo used its own equipment, and that Isleta Pueblo had the duty to ensure that the thinning crew used equipment that was in working order and that was appropriate for the terrain. See Independent Contractor Motion at 22. The United States avers that Isleta Pueblo “owned and maintained the masticator” that allegedly started the Dog Head Fire. See Independent Contractor Motion at 22. The United States argues regarding the remaining Lilly factors that Isleta Pueblo provided its own liability insurance, paid its the thinning crew's salaries and social security taxes, provided and managed the thinning crew, and “could, and did, subcontract under the Isleta Participating Agreement.” Independent Contractor Motion at 22. In the United States' view, the Forest Service's ability to inspect the thinning crew's work did not give the Forest Service sufficient control to make the relationship an employee -- rather than an independent contractor -- relationship. See Independent Contractor Motion at 23-24.

         9. The Ohlsen Independent Contractor Response.

         The Ohlsen Plaintiffs agree that the Court should analyze the Independent Contractor Motion under rule 56's standard but ask that the Court deny the Independent Contractor Motion, because the independent contractor exception does not apply. See Ohlsen Independent Contractor Response at 1. The Ohlsen Plaintiffs ask in the alternative that the Court conclude that a genuine issues of material fact exists whether Isleta Pueblo was an independent contractor. See Ohlsen Independent Contractor Response at 2. The Ohlsen Plaintiffs incorporate their response to the Ohlsen Motion into this Ohlsen Independent Contractor Response. See Ohlsen Independent Contractor Response at 2.

         The Ohlsen Plaintiffs contend that the CFDA, and not the independent contractor exception, provides the standard for determining whether Isleta Pueblo's workers were federal employees for the FTCA's purposes. See Ohlsen Independent Contractor Response at 22-23. According to the Ohlsen Plaintiffs, the CFDA gives the Forest Service authority to enter cooperative relationships with third parties. See Ohlsen Independent Contractor Response at 24. The Ohlsen Plaintiffs quote the CFDA: “To facilitate the administration of the programs and activities of the Forest Service, the Secretary is authorized to negotiate and enter into cooperative agreements with the public . . . to perform forestry protection, including fire protection.” Ohlsen Independent Contractor Response at 24 (citing 16 U.S.C. § 565a-1). According to the Ohlsen Plaintiffs, “[a] cooperative agreement contemplates substantial involvement by the government.” Ohlsen Independent Contractor Response at 24 (citing 31 U.S.C. § 6405; Forest Service Grants and Agreements, Forest Service Handbook, filed December 19, 2018 (Doc. 97-26)(“Forest Service Grants and Agreements, Forest Service Handbook”)). The Ohlsen Plaintiffs aver that the Participating Agreement reflects that such a cooperative relationship existed between the Forest Service and Isleta Pueblo, because the Participating Agreement describes Isleta Pueblo as a “Partner” or “Cooperator, ” and not as a “Contractor.” Ohlsen Independent Contractor Response at 24.

         The Ohlsen Plaintiffs aver that the FTCA does not exclude cooperators from its waiver of immunity and repeat that the CFDA mandates that cooperators are federal employees as long as the cooperator “work[s] under supervision of the Forest Service . . . as mutually agreed to.” Ohlsen Independent Contractor Response at 24 (quoting 16 U.S.C. § 565a-2). The Ohlsen Plaintiffs quote § 565a-2:

In any agreement authorized by section 565a-1 of this title, cooperators and their employees may perform cooperative work under supervision of the Forest Service in emergencies or otherwise as mutually agreed to, but shall not be deemed to be Federal employees other than for purposes of chapter 171 of Title 28 [FTCA] and chapter 81 of Title 5 [(Federal Employees' Compensation Act)].

         Ohlsen Independent Contractor Response at 24-25 (quoting 16 U.S.C. § 565a-2). The Ohlsen Plaintiffs admit that they cannot find a case “interpreting or applying 16 U.S.C. § 565a-2.” Ohlsen Independent Contractor Response at 25. The Ohlsen Plaintiffs aver, however, that, as a policy matter, reading cooperation agreements to waive FTCA immunity will not harm the United States, because the Forest Service and the cooperator must agree to Forest Service supervision and because the Forest Service may enter with prospective contractors forms of agreements other than cooperative agreements. See Ohlsen Independent Contractor Response at 25.

         The Ohlsen Plaintiffs apply their interpretation of § 565a-2 to this case and contend that the thinning crew worked under the Forest Service's supervision. See Ohlsen Independent Contractor Response at 25. The Ohlsen Plaintiffs urge that the Court give the word “supervise” its plain meaning. See Ohlsen Independent Contractor Response at 25-26. The Ohlsen Plaintiffs cite Martarano v. United States, 231 Fed. Supp. 805, 807 (D. Nev. 1964)(Thompson, J.), in which the Honorable Bruce Thompson, then-United States District Judge for the United States District Court for the District of Nevada, found that an employee whom a state agency hired under authority granted in a cooperative agreement was a federal employee, because the federal agency supervised the employee's work duties although the state agency hired and paid the employee. See Ohlsen Independent Contractor Response at 25-26. The Ohlsen Plaintiffs aver that the United States' position depends on a strained reading of § 565a-2. See Ohlsen Independent Contractor Response at 26. The Ohlsen Plaintiffs describe that the Forest Service provided the thinning crew guidelines and “work prescriptions, ” and that these guidelines and prescriptions included directions about, among other things, the “size location, shape, species of trees” that “are desirable, acceptable and undesirable.” Ohlsen Independent Contractor Response at 26. The Ohlsen Plaintiffs contend that the Project Administrators regularly visited the Project's site and directed the thinning crew. See Ohlsen Independent Contractor Response at 27. The Ohlsen Plaintiffs aver that: (i) Johnson visited the Project site around twice a week; (ii) Lueras visited the Project site once a week, and (iii) Fox often visited the site. See Ohlsen Independent Contractor Response at 27. According to the Ohlsen Plaintiffs, the Forest Service and Isleta Pueblo had frequent conversations about the Project. See Ohlsen Independent Contractor Response at 27. In the Ohlsen Plaintiffs' view, such regular oversight and communication indicate that the Forest Service was cooperating with Isleta Pueblo and do not show that the Forest Service was only monitoring Isleta Pueblo's compliance with the Participating Agreement. See Ohlsen Independent Contractor Response at 27. The Ohlsen Plaintiffs also request that the Court disregard the First Fox Decl., because the First Fox Decl. is more argument than it is testimony on facts. See Ohlsen Independent Contractor Response at 26.

         The Ohlsen Plaintiffs argue that the Forest Service and Isleta Pueblo mutually agreed that the Forest Service would supervise Isleta Pueblo. See Ohlsen Independent Contractor Response at 29. The Ohlsen Plaintiffs contend that § 565a-2 does not require that the Forest Service and the cooperator enter a written agreement that the Forest Service will supervise the cooperator, and that the Forest Service and Isleta Pueblo's actions reveal that they mutually agreed to the Forest Service's supervision of Isleta Pueblo. See Ohlsen Independent Contractor Response at 29. According to the Ohlsen Plaintiffs, the Participating Agreement is ambiguous about the Forest Service and Isleta Pueblo's relationship, because the Participating Agreement does not ban Forest Service supervision, but the Participating Agreement gives the Forest Service the power to comment on how the Project's goals are accomplished and to “supervise and direct” Isleta Pueblo's work. Ohlsen Independent Contractor Response at 29 (quoting Participating Agreement ¶ V(F), at 5). The Ohlsen Plaintiffs argue, however, that the Forest Service's and Isleta Pueblo's course of performance manifests their agreement that the Forest Service would supervise Isleta Pueblo, because the Forest Service routinely supervised the thinning crew without Isleta Pueblo complaining about the supervision. See Ohlsen Independent Contractor Response at 29.

         The Ohlsen Plaintiffs argue in the alternative that the Court should deny the Independent Contractor Motion under the independent contractor test. See Ohlsen Independent Contractor Response at 29. Regarding the first Lilly factor, the Ohlsen Plaintiffs describe that the Forest Service's and Isleta Pueblo's intentions about their relationship are not clear. See Ohlsen Independent Contractor Response at 30. According to the Ohlsen Plaintiffs, Dixon does not know whether the Forest Service and Isleta Pueblo intended that the thinning crew workers would be federal employees, but the Participating Agreement notes that the thinning crew workers are not federal employees. See Ohlsen Independent Contractor Response at 30. The Ohlsen Plaintiffs contend, regarding the second factor, that the Forest Service “controlled the manner and method of reaching the [Project's] result and did not control only the end result” for the Project. Ohlsen Independent Contractor Response at 30. Regarding the third factor, the Ohlsen Plaintiffs describe that the Forest Service funded Isleta Pueblo's purchase of equipment, including “chain saws, tools, parts for the masticator, rental trucks, and other equipment.” Ohlsen Independent Contractor Response at 30-31. Turning to the fourth factor, the Ohlsen Plaintiffs state that Isleta Pueblo provided liability insurance, but that it did not waive its sovereign immunity. See Ohlsen Independent Contractor Response at 31. Regarding the fifth factor, the Ohlsen Plaintiffs describe that Isleta Pueblo remitted social security taxes, but that Isleta Pueblo itemized its taxes for the Forest Service before Isleta Pueblo received payment from the Forest Service for the thinning crew's work. See Ohlsen Independent Contractor Response at 31. Turning to the remaining factors, the Ohlsen Plaintiffs further argue that federal regulations do not prevent federal employees from performing the thinning crew's tasks, and that Isleta Pueblo could and did subcontract with third parties for work related to the Project. See Ohlsen Independent Contractor Response at 31.

         10. The Independent Contractor Reply.

         The United States avers that any Plaintiffs who did not respond to the Independent Contractor Motion waive their arguments to that motion. See Independent Contractor Reply at 1 n.1 (citing D.N.M. LR-Civ. 7.1(b)). The United States avers that, although the Forest Service and Isleta Pueblo entered the Participating Agreement under authority from the CFDA, the CFDA does not provide a test for determining a contractor's employment status. See Independent Contractor Reply at 35. The United States argues that the Ohlsen Plaintiffs rely on the Federal Grant and Cooperative Agreement Act of 1977, 31 U.S.C. §§ 6301-08 (“FGCAA”), for the proposition that cooperative agreements necessitate substantial involvement between the executive agency and the cooperator, see Independent Contractor Reply at 36, but that the CFDA's statutory history reflects that the statute is not subject to the FGCAA, see Independent Contractor Reply at 36. The United States adds that, even if the FGCAA applies, no language in the FGCAA defines “cooperators” or “substantial involvement.” See Independent Contractor Reply at 36. The United States avers, furthermore, that courts have found parties working under cooperation agreements to be independent contractors. See Independent Contractor Reply at 36-37 (citing Walding v. United States, 955 F.Supp.2d 759, 795 (W.D. Tex. 2013)(Rodriguez, J.)). The United States adds that the Ohlsen Plaintiffs cite no caselaw for their interpretation of § 565a-2. See Independent Contractor Reply at 37.

         According to the United States, § 565a-2 provides that cooperators “‘may perform cooperative work under supervision of the USFS in emergencies or otherwise as mutually agreed to.'” Independent Contractor Reply at 37 (emphasis in Independent Contractor Reply)(quoting 16 U.S.C. § 565a-2). For the United States, the word “may” reflects that the cooperators have an option whether to work under the Forest Service's supervision. See Independent Contractor Reply at 37-38. The United States argues that, if courts deem all parties working under § 565a-1 to be supervised by the Forest Service and to be federal employees for the FTCA's purposes, § 565a-2 would serve no purpose. See Independent Contractor Reply at 38. The United States quotes the § 565a-2's legislative history:

“The authority in section 2 to permit the Forest Service to supervise the cooperator and his employees would broaden and facilitate opportunities for cooperation and clarify the relationship of the parties. . . . It is sometimes desirable as part of the agreement for cooperators or program participants to work under Forest Service supervision.”

         Independent Contractor Reply at 38 (quoting H.R. Rep. 94-611 at 4-5 (1975)[167]).

         The United States further contends that the Ohlsen Plaintiffs cannot show that either an emergency or a mutual agreement between the United States and Isleta Pueblo for United States supervision existed. See Independent Contractor Reply at 38. The United States emphasizes that the Participating Agreement § V(F), at 5, provides that the thinning crew workers are not federal employees. See Independent Contractor Reply at 39. The United States disputes whether the Participating Agreement is ambiguous, and takes the position that the Participating Agreement clearly reflects an agreement between the Forest Service and Isleta Pueblo that Isleta Pueblo “would contribute personnel, equipment and supplies and manage the employees . . . and that the Pueblo employees were not federal employees for any purpose.” Independent Contractor Reply at 40 (citing Participating Agreement ¶¶ III-V, at 2-3).

         Regarding the Ohlsen Plaintiffs' contentions about the Forest Service Grants and Agreements, Forest Service Handbook, the United States argues that the Forest Service Handbook does not provide a test for determining whether workers are federal employees. See Independent Contractor Reply at 40. The United States describes that the Forest Service and Isleta Pueblo entered the Participating Agreement pursuant to the CFDA's and the Wyden Amendment's authority. See Independent Contractor Reply at 41 (citing Chapter 70.1-79.2 Partnership Agreements, Forest Service Handbook 1509.11 § 71.1(a)-(b), at 13-14, https://www.fs.fed.us/cgi-bin/Directives/getdirs/fsh?1509.11.. (last visited May 4, 2019)(“Forest Service Handbook Ch. 70”)). According to the United States, the Forest Service Handbook Ch. 70 § 72.11(8), at 18, provides that, for agreements entered on CFDA's authority, “‘[c]ooperators and their employees may be considered Federal employees for purposes of tort and worker's compensation, only when the Forest Service supervises their work.'” Independent Contractor Reply at 41 (emphasis in Independent Contractor Reply)(quoting Forest Service Handbook Ch. 70 § 72.11(8), at 18). The United States describes that the Wyden Amendment “does not provide conveyance of Federal employee status toward cooperator's employees and therefore, does not provide tort and worker's compensation coverage under such circumstances.” Independent Contractor Reply at 42 (emphasis in Independent Contractor Reply)(citing Forest Service Handbook Ch. 70 § 72.21(8), at 23). The United States then reiterates the Lilly factors and its arguments from the Ohlsen Motion that Isleta Pueblo was an independent contractor. See Independent Contractor Reply at 42. The United States also differentiates Martarano v. United States from this case's facts, reasoning that Martarano v. United States involved an employee whom a state loaned to the United States. See Independent Contractor Reply at 44. According to the United States, Isleta Pueblo loaned no employees to the Forest Service. See Independent Contractor Reply at 44-45.

         The United States cites Autery v. United States, 424 F.3d 944, 958 (9th Cir. 2005), and Walding v. United States to support its arguments. See Independent Contractor Reply at 45. The United States argues that, in Autery v. United States, wherein wildfire victims sued the United States for negligence, the United States Court of Appeals for the Ninth Circuit held that a cooperative agreement between the Department of Energy and a private company hired to perform work on federal land created an independent contractor relationship, because the contract's textual provisions delegated to the contractor the responsibility to engage in fire protection and prevention.

         See Independent Contractor Reply at 45. According to the United States, the Ninth Circuit focused on whether the United States Department of Energy had authority to control the private company's daily operations. See Independent Contractor Reply at 45. According to the United States, in Walding v. United States, the Honorable Xavier Rodriguez, United States District Judge for the United States District Court for the Western District of Texas, concluded that an employer-employee relationship did not exist among the United States Department of Homeland Security, the Office of Refugee Resettlement, and the contractor Away From Home, Inc., where the Officer of Refugee Resettlement filled a consultant role and did not daily supervise Away From Home, Inc.'s employees. See Independent Contractor Reply at 46.

         The United States argues that the Forest Service did not exercise daily supervision over the thinning crew. See Independent Contractor Reply at 47-48. The United States avers, for instance, that Isleta Pueblo performed day-to-day supervision, including organizing the thinning crew's daily projects, see Independent Contractor Reply at 47-48, that J. Jiron saw Johnson a couple times a month and that Jaramillo never received instructions from the Forest Service, see Independent Contractor Reply at 47. The United States avers that the Tenth Circuit case Curry v. United States, 97 F.3d 412 (10th Cir. 1996), resembles this case. See Independent Contractor Reply at 48. According to the United States, in Curry v. United States, the Forest Service had authority to oversee Joe Roybal's work and even gave him instructions about the debris to clear from the road that the Forest Service hired Roybal to maintain and grade, [168] but the Tenth Circuit concluded that Roybal was an independent contractor. See Independent Contractor Reply at 48 (citing Curry v. United States, 97 F.3d at 413, 415).

         11. The State Farm Independent Contractor Motion Response.

         The State Farm Plaintiffs also filed a response. See Plaintiffs, State Farm Fire & Casualty Company, Safeco Insurance Company of America and Allstate Insurance Company's Response to United States of America's Motion to Dismiss Claims for Lack of Subject Matter Jurisdiction or in the Alternative for Partial Summary Judgment and Adoption of All Plaintiffs' Responses to Defendant's Motions to Dismiss, filed December 19, 2018 (Doc. 96)(“State Farm Independent Contractor Response”). The State Farm Plaintiffs “adopt and incorporate by reference, any and all responses to Defendant's Motions to Dismiss.” State Farm Independent Contractor Response at 1-2.

         12. The Homesite Independent Contractor Response.

         Homesite Indemnity also filed a response. See Homesite Indemnity Company's Response to Defendant United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative for Partial Summary Judgment and Adoption of All Plaintiffs' Responses to Defendant's Motions, filed December 19, 2018 (Doc. 99)(“Homesite Independent Contractor Response”). Homesite Indemnity incorporates into its Homesite Independent Contractor Response all other responses to the Independent Contractor Motion and asks that the Court deny the Independent Contractor Motion. See Homesite Independent Contractor Response ¶ 2, at 1.

         13. The State Farm Reply and the Homesite Indemnity Reply.

         The United States files identical documents in reply to the State Farm Plaintiffs and Homesite Indemnity; the United States changes only the parties' names. Compare United States of America's Reply in Support of its Motion to Dismiss Plaintiffs' Complaints Due to Lack of Subject Matter Jurisdiction at 1-2, filed February 28, 2019 (Doc. 131)(“State Farm Reply”), with United States of America's Reply in Support of its Motion to Dismiss Plaintiffs' Complaints due to Lack of Subject Matter Jurisdiction at 1-2, filed February 28, 2019 (Doc. 130)(“Homesite Indemnity Reply”). The United States “incorporates by reference all arguments made in those replies filed in support of its motions to dismiss the claims of” the State Farm Plaintiffs and Homesite Indemnity. State Farm Reply at 2; Homesite Indemnity Reply at 2.

         14.The Ohlsen Motion.

         In the Ohlsen Motion, the United States requests that the Court dismiss the Ohlsen Plaintiffs' claims, because: (i) the United States is not liable for the Ohlsen Plaintiffs' damages under res ipsa loquitur; (ii) the United States has not waived sovereign immunity “for non-delegable duty claims”; (iii) the Ohlsen Plaintiffs did not exhaust their administrative remedies for claims based on the Forest Service's “purported failure to suppress the fire”; and (iv) the FTCA's discretionary function exception bars all the Ohlsen Plaintiffs' claims. Ohlsen Motion at 2. First, the United States argues that it would not be liable under res ipsa loquitur. See Ohlsen Motion at 10. The United States argues that it did not exclusively control the forest thinning operations, but that Isleta Pueblo controlled the operations. See Ohlsen Motion at 12. The United States next argues that it has not waived sovereign immunity for non-delegable duty claims. See Ohlsen Motion at 12 (citing Rothenberger v. United States, 931 F.2d 900, 1991 WL 70719, at *2 (10th Cir. 1991)(unpublished table opinion); Flynn v. United States, 631 F.2d 678, 681-82 (10th Cir. 1980); United States v. Page, 350 F.2d 28, 33 (10th Cir. 1965)). The United States then avers that the Ohlsen Plaintiffs did not exhaust their administrative remedies, because the Ohlsen Plaintiffs did not mention in their Ohlsen Notice of Claim their concerns about how the Forest Service fought the Dog Head Fire. See Ohlsen Motion at 12-14.

         Last, the United States argues that the Court should dismiss the Ohlsen Plaintiffs' claims, because the claims fall within the FTCA's discretionary function exception. See Ohlsen Motion at 13. The United States describes the two-part test for the discretionary function exception: (i) a court should ask whether the alleged act is based on “an element of judgment or choice, ” Ohlsen Motion at 14 (quoting United States v. Gaubert, 499 U.S. 315, 321 (1991)), and (ii) whether the determination involved in the alleged act is based on policy considerations, see Ohlsen Motion at 14-15 (citing Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988)). The United States begins its argument by listing several statutes, regulations, and other authorities that govern the Forest Service. See Ohlsen Motion at 15-21. The United States describes that the Organic Administration Act of 1897, 16 U.S.C. §§ 473-79, 551, delegated to the Agriculture Department the management of United States National Forests. See Ohlsen Motion at 15 (citing 16 U.S.C. § 551). According to the United States, the Multiple Use Sustained Yield Act of 1960, 16 U.S.C. §§ 528-31, guides the Forest Service's management of the National Forests and directs the Forest Service to administer the National Forests

“to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States” and “for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.”

Ohlsen Motion at 15 (first quoting 16 U.S.C. § 475; then quoting 16 U.S.C. § 528; and citing 16 U.S.C. §§ 529-31). The United States explains that the National Environmental Policy Act, 42 U.S.C. §§ 4321, 4331-35, 4341-46, 4346a, 4346b, 4347, directs the Forest Service to consider the environmental impacts of proposed United States actions that would affect the National Forests. See Ohlsen Response at 15. The United States describes that the National Forest Management Act, 16 U.S.C. §§ 472a, 521b, 1600, 1611-14 (“NFMA”), provides a framework for managing Forest Service lands. See Ohlsen Motion at 16 (16 U.S.C. §§ 472a, 521b, 1600, 1611-14).

         Turning to Forest Service policies, the United States explains that the Forest Service adopted the Forest Service, Cibola National Forest Land and Resource Management Plan (dated July 1985)(“Forest Plan”), [169] “[p]ursuant to NFMA.” Ohlsen Motion at 16. The United States explains that the Forest Plan describes that the Forest Service's goals in managing the Cibola National Forest include “‘provid[ing] for multiple use and sustained yield of goods and services from the Forest in a way that maximizes long term net public benefits in an environmentally sound manner.'” Ohlsen Motion at 16 (quoting Forest Plan at 1). According to the United States, the Forest Plan establishes standards for forest and fire management, see Ohlsen Motion at 16 (citing Forest Plan at 33-34), including, for instance, rules for how many standing dead trees and downed logs, and how much debris, the Forest Service should leave per acre of Ponderasa Pine, see Ohlsen Motion at 17. According to the United States, the Forest Plan provides the following management goals for Management Unit 11, within which Unit 4 is located:

“Maintain the forest and watershed health, vigor, and productivity. Provide and maintain wildlife habitat diversity and old growth. Slash from harvest activities will be made available to the public for personal use firewood. Developed recreation sites will be maintained. Trail construction and new trailhead facilities will provide increased opportunities for dispersed recreation use.”

         Ohlsen Motion at 17 (quoting Forest Plan at 141). The United States also discusses the United States Department of Agriculture, Strategic Plan 2010-2015, filed November 2, 2018 (Doc. 62-5)(“Strategic Plan”), which includes the following Agriculture Department goals:

• Working cooperatively on policy matters;
• Serving [Agriculture Department]'s constituents;
• Measuring performance and making management decisions to direct resources to where they are used most effectively.

         Ohlsen Motion at 17 (quoting Strategic Plan at iv). According to the United States, the Strategic Plan lists as other goals such objectives as assisting rural communities, restoring and conserving national forests, adapting to climate change, and reducing the risks of catastrophic fires. See Ohlsen Motion at 17 (citing Strategic Plan at v). The United States describes that, based on the Strategic Plan, the Forest Service's Southwestern Region, which includes the Cibola National Forest, adopted the Forest Service Southwestern Region Landscape Conservation and Restoration Strategic Action Plan (dated January 31, 2011), filed November 2, 2018 (Doc. 62-6)(“Landscape Plan”), which prioritizes “working with partners to identify and prioritize restoration projects, while ‘creating jobs to support vibrant communities, '” and considering “the values placed on the landscape, threats to those values, the degree of collaboration and local support to restore the landscape, and economics, including job creation and support for local infrastructure.” Ohlsen Motion at 17-18 (quoting Landscape Plan at 1; and citing Landscape Plan at 3).

         The United States then discusses the authorities that govern wildfire management. See Ohlsen Motion at 18. The United States lists several relevant statutes, and then specifies that, in response to the Federal Land Assistance and Management and Enhancement Act of 2009, 43 U.S.C. §§ 1748-48b (“FLAME Act”), [170] the United States Secretary of the Interior and the United States Secretary of Agriculture (“Agriculture Department Secretary”) developed the A National Cohesive Wildland Fire Management Strategy (dated 2011)(“Cohesive Strategy”)[171] and the A National Cohesive Wildland Fire Management Strategy Phase II National Report (dated May 2012)(“Cohesive Strategy Phase II”).[172] The United States explains that the Cohesive Strategy “recognizes the need for ‘building new relationships among . . . stakeholders, '” Ohlsen Motion at 18 (quoting Cohesive Strategy at 1), and “encourages increased use of partnerships, grants, and other funding opportunities, ” Ohlsen Motion at 18 (citing Cohesive Strategy at 4). The United States lists several principles that the Cohesive Strategy requires agencies to consider in developing regional strategies:

• Reducing risk to firefighters and the public is the first priority in every fire management activity.
• Sound risk management is the foundation for all management activities.
Actively manage the land to make it more resilient to disturbance, in accordance with management objectives.
. . . .
Rigorous wildfire prevention programs are supported across all jurisdictions. . . . .
• Fire management decisions are based on the best available science, knowledge and experience, and used to evaluate risk versus gain.
Federal agencies, local, state, tribal governments support one another with wildfire response, including engagement in collaborative planning and the decision-making processes that take into account all lands and recognize the interdependence and statutory responsibilities among jurisdictions.
. . . .
Fire management programs and activities are economically viable and commensurate with values to be protected, land and resource management objectives, and social and environmental quality considerations.

         Ohlsen Motion at 19 (emphasis in Ohlsen Motion)(quoting Cohesive Strategy at 6). The United States explains that the Cohesive Strategy reflects a view of wildfire as a risk that the United States seeks to manage but “not a risk that can, or even should, be eliminated.” Ohlsen Motion at 19 (citing Cohesive Strategy at 13). The United States argues that “effective management requires taking into consideration values at risk, local and regional concerns, risk tolerance, and ‘[r]eal world constraints on funding, available resources, and administrative flexibility.'” Ohlsen Motion at 19-20 (quoting Cohesive Strategy at 13).

         The United States also describes various statutes' and policies' emphases on partnership. See Ohlsen Motion at 20. The United States argues that the TFPA directs the United States Department of the Interior and the Agriculture Department “to consider tribal partners and tribally proposed projects to protect tribal natural.” Ohlsen Motion at 21 (citing 25 U.S.C. §§ 3101, 3115a). The United States notes that the forestry project that included Unit 4's thinning “has been held out as an example of a project that ‘provide[s] fuel wood, create[s] local employment opportunities for Hispanic and Native American youth, and increase[s] the small-scale wood products industry.'” Ohlsen Motion at 20 (quoting Improving Interagency Forest Management to Strengthen Tribal Capabilities for Responding to and Preventing Wildfires before the Sen. Comm. on Indian Affairs and, S. 3014 To improve the Management of Indian forest land, and for other purposes, 114 Cong. 6-7 (2016)(statement of James Hubbard, Deputy Chief, State & Private Forestry, United States Forest Service)). The United States describes that the CFDA provides for the Forest Service to use cooperative agreements “to perform forestry protection projects, including fire protection” and authorizes the Agriculture Department Secretary to enter such agreements when the agreements benefit the public. Ohlsen Motion at 20. According to the United States, in 2014, the Forest Service and the NRCS created “the Joint Chiefs' Landscape Restoration Partnership in 2014 (‘JCLRP') with the goal of reducing wildfire threats to communities, to protect water quality and supply, and to improve wildlife habitat for at risk species.” Ohslen Motion at 21. The JCLRP funds conservation projects on private and public lands, and its goals include: “(1) reducing and mitigating wildfire threats to communities and landowners; (2) protecting water quality and supply for communities and industry; and (3) improving habitat quality or at-risk or ecosystem surrogate species.” Ohlsen Motion at 21 (citing Joint Chiefs' Landscape Restoration Partnership Proposal Solicitation for FY 2018, Joint Forestry Team, http://www.jointforestryteam.org/joint-chiefs-landscape-restoration-partnership-proposal-solicitation-fy2018/ (last visited May 2, 2019)).

         The United States then applies the discretionary function exception's two-part test to this case. See Ohlsen Motion at 21. The United States argues that the Ohlsen Plaintiffs cite no specific statute or regulation that removes the Forest Service's allegedly negligent actions from the discretionary function exception. See Ohlsen Motion at 21. The United States indicates that the Ohlsen Plaintiffs

contend that [the Forest Service] 1) contracted with an inappropriate contractor for the forest thinning project; 2) failed to train, instruct, direct, and supervise the contractor or its crew; 3) left slash produced by prior forest thinning operations on the forest floor; and 4) allowed forest thinning and mastication under unsuitable conditions.

Ohlsen Motion at 22. The United States argues that the Court should assume that the Forest Service exercised discretion, because the policies articulated above give the Forest Service discretion. See Ohlsen Motion at 22.

         The United States adds that this case's facts also show that the Forest Service exercised discretion. See Ohlsen Motion at 22. The United States avers that the Forest Service's decision to enter the Participating Agreement involved numerous public policy considerations based on the authorities that the United States previously discussed, including

actively managing USFS lands; responding to local interest; taking advantage of contributions of a diverse workforce, creating jobs; promoting job training and development programs; promoting a strong partnership with the Pueblo; promoting forest health; promoting watershed health; promoting wildlife habitat; making firewood available for the public; mitigating threats to USFS lands; supporting the Pueblo in collaborative planning and decision-making processes; taking advantage of partnership grants and funding opportunities; and demonstrating the value of the Pueblo's land and the Pueblo's cultural interests on USFS lands.

Ohlsen Motion at 22-23. The United States avers that several courts have recognized that an agency's choice of contractor is grounded on policy choices. See Ohlsen Motion at 23 (citing Carroll v. United States, 661 F.3d 87, 100 (1st Cir. 2011); Layton v. United States, 984 F.2d 1496, 1501-02 (8th Cir. 1993); Guile v. United States, 422 F.3d 221, 231 (5th Cir. 2005); Williams v. United States, 50 F.3d 299, 310 (4th Cir. 1995); Begay v. United States, No. CIV 15-0358 JB/SCY, 2016 WL 6394925, at *31 (D.N.M. Sept. 30, 2016)(Browning, J.); Coffey v. United States, 906 F.Supp.2d 1114, 1157-1159 (D.N.M. 2012)(Browning, J.)). According to the United States, although the Tenth Circuit has not directly addressed this issue, the Tenth Circuit seems to agree with the other courts. See Ohlsen Motion at 23-24 (citing Domme v. United States, 61 F.3d 787, 792 (10th Cir. 1995)).

         The United States next addresses several other Forest Service decisions that the Ohlsen Plaintiffs' claims attack. See Ohlsen Motion at 24-27. The United States argues that the Forest Service chose to allow Isleta Pueblo to supervise the thinning crew because of the same public policy concerns that underlay its decision to work with Isleta Pueblo. See Ohlsen Motion at 24. The United States contends that decisions about overseeing contractors, about training workers, and about delegating safety responsibilities are all discretionary. See Ohlsen Motion at 25. The United States likewise argues that the Forest Service's decision to leave slash on the ground “so that members of the public, by permit, could collect the wood for fuel was based on important public policy considerations, such as the public's demand for firewood and the underlying purpose of the Multiple Use Sustained Yield Act of 1960.” Ohlsen Motion at 25. The United States contends that Isleta Pueblo had the responsibility to decide under which daily conditions to masticate and that the Forest Service made a discretionary decision when it delegated this responsibility to a contractor -- Isleta Pueblo. See Ohlsen Motion at 26. The United States avers that, in determining the general timing of mastication, the Forest Service made a discretionary decision that turned on “all other scheduled [Forest Service] projects, the risk of wildfire presented by the project, the risk of a catastrophic wildfire should the project be delayed, and available funding.” Ohlsen Motion at 26 (citing Safeco Ins. v. United States, No. 98-17409, 202 F.3d 279, 1999 WL 1038272, at *1 (9th Cir. Nov. 12, 1999)(unpublished table opinion)). The United States also contends that Forest Service's choices about Unit 4's treatment were also policy decisions and explains that

because of the widely varying nature of forestlands throughout the country, the Forest Service delegates decisionmaking regarding treatment of forestlands to the local level. District-level silviculturalists, foresters, and timber markers all rely on their experience and judgment in making decisions regarding which stands of trees and which individual trees need treatment in order to further the Forest Service's policy of improving timber quality, and in deciding which treatment methods will best serve those goals.

Ohlsen Motion at 26-27 (quoting Layton v. United States, 984 F.2d at 1501-02). Last, the United States avers that the Forest Service had to decide what to do with the slash that the public had not collected for firewood. See Ohlsen Motion at 27. According to the United States, in reaching the decision to masticate the slash, the Forest Service considered policy objectives “such as forest health, improving wildlife habitat, weighing the risk of wildfire, public access to Unit 4, aesthetics, and available resources.” Ohlsen Motion at 27.

         15.The Ohlsen Response.

         The Ohlsen Plaintiffs respond. See Ohlsen Response at 1-37. The Ohlsen Plaintiffs state that the Plaintiffs agree that the Ohlsen Response applies to all Plaintiffs. See Ohlsen Response at 1 n.1. The Ohlsen Plaintiffs contend first that the test for exhaustion of administrative remedies is a “pragmatic” test. Ohlsen Response at 23 (quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 853 (10th Cir. 2005)). The Ohlsen Plaintiffs aver that, in a notice of claim, they must notify the Forest Service only of the facts that underlie their claim. See Ohlsen Response at 23. The Ohlsen Plaintiffs contend that they state in the Ohlsen Complaint the same facts about the Dog Head Fire's suppression that they state in the Ohlsen Notice of Claim. See Ohlsen Response at 24. The Ohlsen Plaintiffs describe that, in their notice of claim, they state:

(11.) The Project and agency named in this claim did not reasonably employ a competent and careful contractor to perform the work and did not train, direct, or supervise the contractor and crew with regard to fire danger evaluation, proper operational procedures, fire prevention, and fire suppression procedures and techniques. Accordingly, the masticator was operated at an unreasonable time during fire season, in unreasonable conditions of rocky soil and very dry slash and bole, and in an unreasonable manner, resulting in the ignition of the fire. Public statements by the USFS indicate the crew did not attempt to suppress the fire in its very small incipient state, but rather they removed the masticator to safety and called in the fire department.
(12.) The fire suppression equipment required by the Project and agency named in this claim to be on hand during the mastication operation was insufficient to suppress the fire in its incipient state. The Project and agency named in this claim unreasonably did not require any equipment be on hand to put out an incipient fire in slash or wood.

Ohlsen Response at 24 (emphasis in Ohlsen Response)(quoting Ohlsen Notice of Claim ¶¶ 11-12, at 4). According to the Ohlsen Plaintiffs, in their Ohlsen Complaint, they allege: “Defendants, by and through their agents and employees did not reasonably employ a competent and careful contractor to perform the work and did not train, direct, or supervise the contractor and crew with regard to fire danger evaluation, proper operational procedures, fire prevention, and fire suppression techniques.” Ohlsen Response (citing Ohlsen Complaint ¶ 19, at 5). The Ohlsen Plaintiffs contend that they make the same allegation in the Ohlsen Notice of Claim. See Ohlsen Response at 24. The Ohlsen Plaintiffs contend that the Ohlsen Complaint's allegation that the thinning “‘crew was not adequately trained or equipped to prevent or immediately suppress a fire and made no attempt to immediately suppress the fire, '” Ohlsen Response at 25 (quoting Ohlsen Complaint ¶ 19, at 5), is in the Ohlsen Notice of Claim, in which the Ohlsen Plaintiffs write “the crew did not attempt to suppress the fire in its very small incipient state, ” Ohlsen Response at 25 (quoting Ohlsen Notice of Claim at 2). According to the Ohlsen Plaintiffs, the Ohlsen Notice of Claim's allegations about the firefighting crew and equipment also “cover[s]” the Ohlsen Complaint's allegation “that the Defendants ‘declined and did not use available fire suppression resources.'” Ohlsen Response at 25 (no citation provided). The Ohlsen Plaintiffs argue that the Ohlsen Notice of Claim sufficiently alerted the United States to the Ohlsen Plaintiffs' complaints about how the Forest Service responded to the Dog Head Fire, see Ohlsen Response at 25, and that the Agriculture Department investigated these topics, see Ohlsen Response at 25 (citing Dog Head Fire Report at 5-11, 14-18).

         The Ohlsen Plaintiffs also aver that the discretionary function exception to the FTCA does not bar their claims. See Ohlsen Response at 26. The Ohlsen Plaintiffs cite Smith v. United States, 546 F.2d 872, 877 (10th Cir. 1976), and Coffey v. United States to argue that the discretionary function does not except the United States' actions after the United States has used its discretion to choose a course of action. See Ohlsen Response at 27-28. The Ohlsen Plaintiffs contend that, once the Forest Service decided to thin Cibola National Forest, the Forest Service had a duty to perform the thinning in a safe manner. See Ohlsen Response at 28-29. According to the Ohlsen Plaintiffs, the Forest Service could not abdicate this responsibility, because the Forest Service still owned the Cibola National Forest, and “controlled the depth of the slash, when to do a controlled burn, when fire restrictions were put in place, when the public could use the forest, when contractors could work there and what type of equipment they could operate.” Ohlsen Response at 28-29. The Ohlsen Plaintiffs argue, therefore, that, although the United States' decision whether and what safety procedures to adopt is discretionary, the United States' decision to follow the policies is not discretionary. See Ohlsen Response at 29 (citing Maryls Bear Med. v. U.S. ex rel. Sec'y of Dep't of Interior, 241 F.3d 1208, 1215 (9th Cir. 2000); Faber v. United States, 56 F.3d 1122, 1126 (9th Cir. 1995); Berkovitz by Berkovitz v. United States, 486 U.S. at 544; McGarry v. United States, 549 F.2d 587, 591 (9th Cir. 1976)). The Ohlsen Plaintiffs aver that, by permitting the slash to reach a depth of three feet and allowing the slash to remain at that depth over a year, the Forest Service, through Fox and Johnson, violated the Participating Agreement, which mandates a maximum slash depth of eighteen inches. See Ohlsen Response at 30. The Ohlsen Plaintiffs add that the Forest Service knew that Unit 4 had a high fire risk and was treating Unit 4 because of that risk. See Ohlsen Response at 31.

         The Ohlsen Plaintiffs then contend that the Forest Service's policies required that the thinning crew burn the accumulated slash. See Ohlsen Response at 31 (citing U.S. Dep't of Agri. Forest Serv., Decision Notice and Finding of No Significant Impact Isleta Collaborative Landscape Analysis Project at 4 (dated September 18, 2018), filed December 19, 2018 (Doc. 98-10)(“Decision Notice”)). The Ohlsen Plaintiffs argue that, after the Forest Service allowed the slash to reach three feet, it could not burn the slash and thus violated the Decision Notice, and that, because the slash's depth alone influenced the Forest Service's decision not to perform a prescribed burn, the decision did not involve economic choices. See Ohlsen Response at 31-32. The Ohlsen Plaintiffs additionally argue that

the actions cannot meet the second prong as the prescriptions for burning did not entail policy considerations. Nor would any discretion in setting the conditions be susceptible to a policy analysis. See Gaubert[, ] 499 U.S. at 324-25. Setting the prescriptions involved safety considerations mandated by state tort law and the day-to-day management of the project at the operational level. Gaubert, 499 U.S. at 325.

         Ohlsen Response at 32. The Ohlsen Plaintiffs argue that the Forest Service's failure to engage in a prescribed burn enabled the accumulated slash “to become a perfect fuel load, ” and that the “deep dry slash also resulted in a fire that quickly grew and spread.” Ohlsen Response at 32. The Ohlsen Plaintiffs add that “failure to follow the prescribed burn guidelines and instead directing Isleta Pueblo to use a masticator, which is known to cause sparks, to manage the dried slash was the proximate cause of the fire.” Ohlsen Response at 33.

         The Ohlsen Plaintiffs aver that the United States also violated the Participating Agreement by allowing Isleta Pueblo to ignore several safety requirements. See Ohlsen Response at 33. According to the Ohlsen Plaintiffs, Isleta Pueblo did not: (i) create a safety plan; (ii) carry appropriate fire safety equipment; (iii) have the proper tools for its work; (iv) have a tool box; (v) suppress the fire when the fire ignited; or (vi) properly train a masticator operator. See Ohlsen Response at 33-34. The Ohlsen Plaintiffs also argue that these actions do not involve policy considerations, see Ohlsen Response at 34, and that “case law directs that, by nature, matters of routine maintenance are not protected by the discretionary function exception because they generally do not involve policy-weighing decisions or actions, ” Ohlsen Response at 35 (emphasis in Ohlsen Response)(quoting Terbush v. United States, 516 F.3d 1125, 1133-1134 (9th Cir. 2008)). The Ohlsen Plaintiffs aver that, even if the Court concludes that the Forest Service's decisions involved policy considerations, the Forest Service cannot ignore its basic duties under tort law when performing the work that it decides to undertake. See Ohlsen Response at 35.

         The Ohlsen Plaintiffs also contend that “[t]he discretionary function does not shield the [United States] if it acts with blatant disregard for the public's wellbeing.” Ohlsen Response at 35. The Ohlsen Plaintiffs argue that the Forest Service “acted negligently by 1) implementing no proper fire restrictions knowing the fire risk was high, and failing to relay that risk to [Isleta] Pueblo, and 2) Not completing a site specific analysis of the fire risk.” Ohlsen Response at 35 (citing Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986)). The Ohlsen Plaintiffs argue that the Forest Service told Isleta Pueblo when to work and when to stop working because of fire risks. See Ohlsen Response at 35-36. According to the Ohlsen Plaintiffs, although the ERC was over ninety percent on June 14, 2016, and, “[w]henever the ERC is 90% or more, the USFS must go into mandatory forest closures, ” the Forest Service did not direct Isleta Pueblo to cease work on June 14, 2016. Ohlsen Response at 36. The Ohlsen Plaintiffs also aver that, despite the Forest Service's knowledge that masticators may spark and cause fires and that Unit 4 had deep slash that would fuel a fire, the Forest Service directed Isleta Pueblo to masticate on Unit 4's rocky ground in deep slash during the fire season and in weather conditions that threatened fire. See Ohlsen Response at 36. The Ohlsen Plaintiffs additionally contend that the Forest Service acted negligently, because the Forest Service did not perform a site-specific analysis to consider Unit 4's fire risk, and because, on June 14, 2016, the Forest Service did not have its fire engines patrolling for fires or accompanying the masticator. See Ohlsen Response at 36-37.

         16. The Ohlsen Reply.

         The United States replies. See Ohlsen Reply at 1-48. First, the United States asks that the Court dismiss the Ohlsen Plaintiffs' res ipsa loquitur claim and non-delegable duty claim, because the Ohlsen Plaintiffs do not respond to the United States' arguments about these claims. See Ohlsen Reply at 1. The United States also contends that the Ohlsen Plaintiffs concede that the United States' decisions to enter the Participating Agreement and to delegate to Isleta Pueblo the responsibility to supervise the thinning crew fall under the discretionary function exception. See Ohlsen Reply at 1. The United States argues, moreover, that the Ohlsen Plaintiffs' response to the United States' discretionary function arguments focuses on Isleta Pueblo's violations of the Participating Agreement, see Ohlsen Reply at 2, and that the Ohlsen Plaintiffs did not exhaust their administrative remedies for such theories, because the Ohlsen Plaintiffs did not notify the Forest Service in the Ohlsen Notice of Claim that the Ohlsen Plaintiffs allege the United States' liability for Isleta Pueblo's actions. See Ohlsen Reply at 2. The United States further argues that the Independent Contractor Motion shows that the United States is not liable for Isleta Pueblo's actions. See Ohlsen Reply at 2.

         The United States first addresses its arguments about the Ohlsen Plaintiffs' failure to exhaust and argues that the Ohlsen Plaintiffs did not address the United States' argument regarding the Ohlsen Plaintiffs' claim that the Forest Service “was negligent in fighting the Dog Head Fire (as opposed to USFS's alleged negligence in supervising or training Pueblo employees).” Ohlsen Reply at 31 (emphasis in Ohlsen Reply). The United States also contends that the Ohlsen Plaintiffs did not “preserve a claim that the Pueblo failed to adequately respond to the fire.” Ohlsen Reply at 31 (emphasis in Ohlsen Reply). According to the United States, in the Ohlsen Notice of Claim, the Ohlsen Plaintiffs focus on the United States' actions. See Ohlsen Reply at 31-32. The United States also argues that the Ohlsen Plaintiffs raise for the first time in the Ohlsen Response the theory that the Forest Service acted negligently by not having a fire engine at the thinning site with the masticator. See Ohlsen Reply at 32-33. The United States then argues that it finished the Dog Head Fire Report on October 13, 2016, before the Ohlsen Plaintiffs submitted the Ohlsen Notice of Claim. See Ohlsen Reply at 33. The United States argues that, even should it have foreseen the Ohlsen Plaintiffs' claims, the Ohlsen Plaintiffs cannot now bring a claim that they did not include in the Ohlsen Notice of Claim. See Ohlsen Reply at 33 (citing Benally v. United States, 735 Fed.Appx. 480, 491 n.13 (10th Cir. 2018)). The United States adds that it does not need to investigate a claim for the exhaustion requirement to apply. See Ohlsen Reply at 33 (citing 28 U.S.C. § 2675(a)).

         Turning to the FTCA's discretionary function exception, the United States enumerates several theories that the Ohlsen Plaintiffs propose for the Forest Service's negligence:

• General duty to protect the public, [Ohlsen Response] at 28
• Enforcement of obligations of the Pueblo under P.A. (such as slash depth, “allowed for improper training”) Id. at 28, 30, 33
• Failing to conduct prescribed burn on Unit 4, Id. At 28, 30
• Allowing the Pueblo to conduct mastication operations under purportedly unsafe conditions, Id. at 28, 29
• Allowing accumulation of slash, Id. at 30
• Preventing “the required response to the fire, ” Id. at 30
• Failing to implement fire restrictions, Id. at 35
• Failing to complete a site specific analysis of the fire risk, Id. At 35
• Failing to have fire engines at Unit 4 during the mastication work, Id. at 35.

         Ohlsen Reply at 35. The United States adds in a footnote that the Forest Service did not initiate the decision to thin the Cibola National Forest and that the Forest Service did not perform the work, but that the Forest Service contracted with Isleta Pueblo for the thinning. See Ohlsen Reply at 35-36 n.9. The United States also disputes the proposition that it has a special duty to ensure fire safety, see Ohlsen Reply at 35-36, and argues that the Tenth Circuit has narrowly construed Smith v. United States, on which the Ohlsen Plaintiffs rely, and that the cases from the Ninth Circuit and the United States Court of Appeals for the Eighth Circuit that the Plaintiffs cite are inapt, see Ohlsen Reply at 36-37. The United States also disagrees with the Ohlsen Plaintiffs that state tort law can override the discretionary function exception. See Ohlsen Reply at 37-38.

         The United States then replies to the Ohlsen Plaintiffs' application of the discretionary function. See Ohlsen Reply at 38. The United States contends that the Ohlsen plaintiffs do not identify a directive regarding the United States' oversight of Isleta Pueblo's work and discuss only the Participating Agreement's requirements for Isleta Pueblo. See Ohlsen Reply at 38. The United States avers that the United States had no responsibility for enforcing safety measures but that Isleta Pueblo had such responsibilities. See Ohlsen Reply at 38-39. The United States explains that the Participating Agreement provides that the United States will inspect the thinning crew's work and provide feedback, but that the Participating Agreement does not require United States supervision over the thinning crew's compliance with the Participating Agreement and the Statements of Work. See Ohlsen Reply at 39. According to the United States, the Tenth Circuit has routinely held that United States' decisions regarding the extent to supervise an independent contractor are discretionary. See Ohlsen Reply at 39 (citing Garcia v. U.S. Air Force, 533 F.3d 1170, 1178 (10th Cir. 2008); Domme v. United States, 61 F.3d at 791; Fritz v. United States, 42 F.3d 1406, 1994 WL 678495 (10th Cir. 1994)(unpublished table opinion)).

         The United States adds that, to defeat the discretionary function exception, the Ohlsen Plaintiffs must show that the United States' purported violations of its mandatory duties caused the Ohlsen Plaintiffs' injuries. See Ohlsen Reply at 40. According to the United States, no evidence shows that the slash depth, safety equipment at the worksite, or operation of the masticator contributed to the Dog Head Fire. See Ohlsen Reply at 40-41. Regarding the safety equipment, the United States argues that only J. Jiron was qualified to fight the fire and that no evidence suggests that Isleta Pueblo would have extinguished the fire. See Ohlsen Reply at 41.

         Turning to the other alleged actions and specifically the Forest Service's alleged failure to perform a prescribed burn, the United States avers that the Forest Service planned to perform such a burn after mastication. See Ohlsen Reply at 43. According to the United States, the decision when to perform a prescribed burn rests on considerations about forest resources and is a discretionary decision. See Ohlsen Reply at 43-44. Regarding the arguments about when and where mastication should have occurred, the United States argues that the Ohlsen Plaintiffs do not identify specific rules about these matters and points the Court to the United States' Ohlsen Motion. See Ohlsen Reply at 44. Regarding the Ohlsen Plaintiffs' other allegations, the United States avers that the Ohlsen Plaintiffs illustrate no mandatory requirements that the United States violated and takes the position that the decisions were discretionary. See Ohlsen Reply at 44-48. The United States specifically argues that the Ohlsen Plaintiffs' contentions about the mandatory fire restrictions are based on two incorrect factual assumptions -- that the ERC value was ninety-percent on June 14, 2016, and that, if the ERC value is ninety-percent, the Forest Service must enact restrictions. See Ohlsen Reply at 45. Regarding the decision to masticate on June 14, 2016, the United States adds that the Forest Service balanced the risk of restricting the thinning activities with the risk of a wildfire. See Ohlsen Reply at 45-46. The United States also specifically avers that Isleta Pueblo's work would have continued even if a site-specific analysis had occurred, so the lack of a site-specific analysis did not cause the Plaintiffs' injuries. See Ohlsen Reply at 46. Regarding the placement of the fire engines, the United States explains that the Mountainair Ranger District includes the Manzano Mountains and the Gallinas Mountains, and that, in directing the fire engines, the Forest Service must consider the weather, wildlife, general needs for the fire engines, and the need for firefighters to interact with the public to raise fire awareness. See Ohlsen Reply at 47-48.

         17. The C De Baca Motion.

         The United States asks that the Court dismiss C De Baca's and Cianchetti's claims, because neither plaintiff exhausted the administrative remedies for claims of the Forest Service's “purported failure to ensure that the equipment used in the forest thinning project was in good order and the proper equipment for the terrain; failure to provide proper fire extinguishment tools; and failure to manage the undergrowth of the forest area where the fire occurred.” C De Baca Motion at 1. The United States also contends that the discretionary function exception bars C De Baca's and Cianchetti's claims that the Agriculture Department “purportedly declined to allow first responders to put out the initial fire.” C De Baca Motion at 2. The United States notes that, as it argues in its Independent Contractor Motion, the independent contractor exception also bars C De Baca's and Cianchetti's claims “based on their allegation that the masticator was not in proper working condition or was not the proper equipment for the terrain and USFS purportedly failed to provide the proper ‘fire extinguishment tools.'” C De Baca Motion at 3. Regarding the failure to exhaust, the United States first contends that the C De Baca Notice of Claim and the Cianchetti Notice of Claim did not “mention maintenance of the equipment used in the forest thinning project, provision of fire extinguishing tools, nor management of undergrowth in the forest area.” C De Baca Motion at 5. The United States explains that, in the C De Baca Notice of Claim and the Cianchetti Notice of Claim, C De Baca and Cianchetti allege only that Isleta Pueblo negligently operated equipment. See C De Baca Motion at 6.

         Turning to the discretionary function argument, the United States next avers that C De Baca's and Cianchetti's claims based on the Forest Service's alleged decision not to permit first responders to extinguish immediately the Dog Head Fire falls within the FTCA's discretionary function exception. See C De Baca Motion at 9. The United States notes that C De Baca and Cianchetti cite no authority that the Forest Service violated. See C De Baca Motion at 10. The United States explains that, in making firefighting decisions, the Forest Service considers suppression costs, resource loss, and the values to be protected. See C De Baca Motion at 10-11. According to the United States, in Hardscrabble Ranch, LLC v. United States, 840 F.3d 1216 (10th Cir. 2016), the Tenth Circuit held that decisions about fighting wildfire are “‘susceptible to a policy analysis.'” C De Baca Motion at 13 quoting Hardscrabble Ranch, LLC v. United States, 840 F.3d at 1222). The United States explains that, here, the Forest Service decided that fighting the Dog Head Fire on the ground initially would endanger the firefighters, and assigned the Torrance County, New Mexico volunteer firefighters duties consistent with their skills and training when they arrived.

         18. The C De Baca Response.

         C De Baca and Cianchetti ask that the Court ignore the United States' arguments about the independent contractor exception, because the United States does not raise the argument in the C De Baca Motion or incorporate the argument from other filings. See C De Baca Response at 1-2. C De Baca and Cianchetti also ask that the Court disregard the C De Baca Motion, because the United States does not specify under which legal standard the Court should dismiss the C De Baca Complaint and the Cianchetti Complaint. See C De Baca Response at 2 (citing Fed.R.Civ.P. 7.1(a)). C De Baca and Cianchetti “adopt and incorporate by reference, any and all responses to Defendant's Motions to Dismiss.” C De Baca Response at 4. C De Baca and Cianchetti contend that, in arguing that C De Baca and Cianchetti did not exhaust their administrative remedies, the United States looks at each individual allegation, but, in C De Baca's and Cianchetti's views, the negligence claim in the C De Baca Notice of Claim and the Cianchetti Notice of Claim puts the United States on notice of all the specific allegations. See C De Baca Response at 7-8. C De Baca and Cianchetti also aver that the United States had sufficient legal notice to investigate and to possibly settle their claims. See C De Baca Response at 8. C De Baca and Cianchetti consent to dismissal of their claim regarding the Forest Service's decisions about suppressing the Dog Head Fire. See C De Baca Response at 10.

         19. C De Baca Reply.

         The United States summarizes that C De Baca and Cianchetti agreed to dismiss their “claim of negligence based on USFS's purported decision to decline to allow first responders to put out the fire falls within the discretionary function exception to the FTCA, ” C De Baca Reply at 1, and avers that the United States filed a separate motion about the independent contractor arguments and stated in the C De Baca Motion's first sentence that it seeks dismissal under 12(b)(1), see C De Baca Response at 1-2. The United States identifies as the only remaining issue whether C De Baca and Cianchetti exhausted their administrative remedies on the three additional claims in the C De Baca and the Cianchetti Complaints, see C De Baca Response at 2, and, on this point, it repeats its earlier arguments, see C De Baca Response at 5-6. The United States adds that whether it investigated the claim in the C De Baca Notice of Claim and Cianchetti Notice of Claim is irrelevant to the administrative exhaustion requirement. See C De Baca Response at 6-7.

         20. The Sais Motion.

         The United States asks that the Court dismiss the Sais Plaintiffs' claims, because the Sais Plaintiffs failed to exhaust their administrative remedies for all their claims and because the claims are within the discretionary function exception and/or the independent contractor exception. See Sais Motion at 1. The United States avers that, for the reasons provided in the C De Baca Motion, the Sais Plaintiffs failed to exhaust their claims about the Forest Service:

[(i)] purportedly failing to ensure that the equipment used in the forest thinning project was in good working order and the proper equipment for the terrain; [(ii)] purportedly failing to provide proper fire extinguishment tools; and [(iii)] purportedly failing to manage undergrowth of the forest area where the fire occurred.

         Sais Motion at 11. The United States argues that the Sais Plaintiffs' Notice of Claim gives as the claims' basis “that USFS negligently operated equipment and negligently commenced fire suppression activity.” Sais Motion at 12. According to the United States, for the reasons it set forth in the Ohlsen Motion, several of the Sais Plaintiffs' claims also fall under the discretionary function exception, including the claims about the Forest Service:

• Producing and leaving “on the ground, for a period of years, slash and boles produced by forest thinning operation where the fire started, ” thereby allowing the “slash and boles on the ground . . . to harden and become dry fuel for fire.” . . . .
• Conducting forest thinning operations under unreasonable conditions, “during a drought and in hot, dry, and winding conditions and during a period known to be a high fire season in New Mexico.” . . . .
• Failing “to employ competent individuals to perform the mastication work.” . . . .
• Failing to “train, instruct, direct, and/or supervise” the Pueblo crews “with regard to fire danger evaluation, proper operational procedures, fire prevention, and immediate fire suppression techniques.” . . . .

         Sais Motion at 15 (not providing citations for the quotations). The United States incorporates from the C De Baca Motion its arguments about the claim regarding the Forest Service's decision not to allow first responders to extinguish the Dog Head Fire, see Sais Motion at 15, and adopts against the Sais Plaintiffs its arguments from the Independent Contractor Motion, see Sais Motion at 17.

         The United States last avers that the Sais Plaintiffs' allegation that the Forest Service “failed to manage undergrowth of the forest area falls within the discretionary function exception to the FTCA.” Sais Motion at 15. According to the United States, the Sais Plaintiffs cite no authority that the Forest Service violated. See Sais Motion at 16. The United States argues that, in managing the forest, an environmental assessment must occur; a restoration project must be considered in the context of the Cibola National Forest and of other Forest Service lands; the Forest Service must balance competing projects; and the Forest Service sets priorities based on the forest health, wildlife, cultural resources, and other concerns. See Sais Motion at 17.

         21. The Sais Response.

         The Sais Plaintiffs respond, and “adopt and incorporate by reference, any and all Responses to Defendant's Motions to Dismiss.” Sais Response at 2. The Sais Plaintiffs specifically adopt C De Baca's and Cianchetti's arguments on exhaustion, see Sais Response at 2, and, like C De Baca and Cianchetti, consent to dismissal of their claim based on the Forest Service's decisions about the initial suppression of the Dog Head Fire, see Sais Response at 2. The Sais Plaintiffs also specifically incorporate the Ohlsen Independent Contractor Response. See Sais Response at 2.

         The Sais Plaintiffs additionally argue that the thinning crew workers are de facto federal employees. See Sais Response at 2. The Sais Plaintiffs contend that § 565a-2 provides that all cooperators and their employees work “under the supervision of the Forest Service.” Sais Response at 3 (quoting 16 U.S.C. § 565a-2). The Sais Plaintiffs argue that Congress has elsewhere waived immunity under the FTCA for cooperators. See Sais Response at 3-4 (citing 16 U.S.C. § 558(c); Trujillo v. United States, 313 F.Supp.2d 1146, 1150 (D.N.M. 2003)(Johnson, J.)).

         The Sais Plaintiffs posit that, “[e]ven in the absence of specific statutory authority identifying individuals as federal employees for FTCA purposes, individual [sic] performing federal functions and supervised by federal agencies are federal employees for FTCA purposes.” Sais Response at 4. The Sais Plaintiffs quote Cannady v. United States, 155 F.Supp.2d 1379, 1381-82 (M.D. Ga. 2001)(Owens, J.), which defines an “employee of the government”:

The FTCA defines “employee of the government” to include “officers or employees of any federal agency . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” 28 U.S.C.A. § 2671(1). Federal courts apply a “control test” to determine whether a person is an employee of the government for purposes of the FTCA. Means v. United States, 176 F.3d 1376, 1379 (11th Cir. 1999)(citing Logue v. United States, 412 U.S. 521 . . . (1973)). Under the control test, “a person is not an ‘employee of the government' for FTCA purposes unless the government controls and supervises the day-to-day activities of the individual.” Id. As the United States Court of Appeals for the Eleventh Circuit noted in Means, “The central jurisdictional question under the FTCA remains whether the alleged tortfeasor is an ‘employee of the government' and that determination is made by reference to the degree of physical control the government exercised.” Id. at 1380.

Sais Response at 4-5. The Sais Plaintiffs contend that, because the thinning crew performed thinning and mastication for the Forest Service, their activities meet this standard. See Sais Response at 5.

         22. The Sais Reply.

         The United States replies. See Sais Reply at 1-6. The United States contends that, because the Sais Plaintiffs do not respond to several arguments in the Sais Motion, the Sais Plaintiffs implicitly consent to dismissing their claims that:

• USFS was negligent in leaving slash and boles produced by forest thinning operations on the ground where the fire started;
• USFS was negligent in conducting forest thinning operations under unreasonable conditions;
• USFS negligently failed to employ competent individuals to perform the work;
• USFS failed to train, instruct, direct, or supervise the Pueblo crews.

Sais Reply at 2. The United States otherwise repeats its arguments from the Sais Motion. See Sais Reply at 3.

         23. The Notices of Supplemental Authority.

         The Ohlsen Plaintiffs filed two notices of supplemental authority. See Notice of Supplemental Authority, filed January 7, 2019 (Doc. 106)(“Jan. Notice of Supp. Authority”); Ohlsen Plaintiffs' Notice of Supplemental Authority, filed March 6, 2019 (Doc. 144)(“March Notice of Supp. Authority”). In the Jan. Notice of Supplemental Authority, the Ohlsen Plaintiffs direct the Court to the CFDA's legislative history as supplemental authority for their Ohlsen Independent Contractor Response and the Ohlsen Response, and, to the notice, attach that history for the Court's reference. See Jan. Notice of Supp. Authority at 1-2; Pub. L. 94-148, 89 Stat 804 (1975), filed January 7, 2019 (Doc. 106-1). The March Notice of Supplemental Authority supplements the Independent Contractor Motion and the Ohlsen Response with citation to two authorities on the Forest Service's “duty to ‘protect against destruction by fire, '” March Notice of Supp. Authority at 1: (i) 16 U.S.C. § 551, which according to the Ohlsen Plaintiffs, states: “[t]he Secretary of Agriculture shall make provisions for the protection against destruction by fire and depradations upon the public forests and national forests'”; and (ii) Rounds v. United States Forest Service, 301 F.Supp.2d 1287, 1292 (D. Wyo. 2004)(Brimmer, J.). March Notice of Supplemental Authority at 1.

         24. The Additional Evidentiary Briefings.

         The Ohlsen Plaintiffs also file several objections to the United States' evidence. See First Objections; Fox Objections; Motion to Strike. To support their Fox Objections, the Ohlsen Plaintiffs alsosubmit an excerpt from the Fox Depo. See Ohlsen Plaintiffs' Notice of Filing of Deposition Excerpt of Ian Fox at 1, filed March 11, 2019 (Doc. 145). In these documents, the Ohlsen Plaintiffs object to various portions of the United States' evidence. See First Objections at 1-2; Fox Objections at 1-4; Motion to Strike at 3-4. With the Motion to Strike, the Ohlsen Plaintiffs include additional evidence to rebut the Third Fox Decl. and ask, on page one, that, should the Court deny the Motion to Strike, the Court grant the Ohlsen Plaintiffs leave to file a surreply, see Motion to Strike at 1, and, on page six, that the Court consider the Motion to Strike a surreply, see Motion to Strike at 6. The United States responds to the various evidentiary arguments in the United States of America's Response to Ohlsen Plaintiffs' Objections to Evidence Submitted by the United States, filed February 28, 2019 (Doc. 132)(“First Objections Response”); the United States of America's Response to Ohlsen Plaintiffs' Objections to Third Declaration of Ian Fox at 1-5, filed April 2, 2019 (Doc. 156)(“Fox Objections Response”); the United States of America's Response to Ohlsen Plaintiffs' Motion to Strike Portions of Third Declaration of Ian Fox at 1-7, filed April 2, 2091 (Doc. 157)(“Motion to Strike Response”). The United States concedes that the Court may consider the Motion to Strike a surreply. See Motion to Strike Response at 7. The Ohlsen Plaintiffs reply to the United States' arguments in the Ohlsen Plaintiffs' Reply in Support of Objections to Third Declaration of Ian Fox, filed April 23, 2019 (Doc. 170), and the Motion to Strike Reply at 2-7.

         25.The Motion to Strike Reply.

         In the Motion to Strike Reply, the Ohlsen Plaintiffs clarify that they specifically claim:

1) the USFS failed to implement site-specific fire restrictions given the extreme fire danger and fuel load conditions, given the mandatory provision in the Participating Agreement (“PA”)(standard USFS form) that provided that slash shall not exceed 18” in depth; 2) Anthony Martinez, USFS Fire Management Officer, testified that fire restrictions are automatically implemented when the ERC (Energy Release Component) reaches 90; and, 3) the USFS and Pueblo members did not have proper training and equipment to suppress the fire given waistdeep slash (slash that exceeds the limit in the PA [(Participating Agreement)] ¶ 18”).

         Motion to Strike Reply at 2. The Ohlsen Plaintiffs devote the rest of the Motion to Strike Reply to evidentiary arguments as discussed in the Factual Background's and the Analysis' footnotes.

         26.The March 8, 2019, Hearing.

         The Court began the hearing by asking the parties whether they agreed that it should decide the Independent Contractor Motion, the Ohlsen Motion, the C De Baca Motion, and the Sais Motion under rule 56's standard, because the motions' jurisdictional issues are intertwined with the merits and the parties submitted considerable materials outside the pleadings to support their arguments. See March 8 A.M. Tr at 4:8-21 (Court). The United States agreed with the Court. See March 8 A.M. Tr. at 4:22-5:4 (Ortega). The Ohlsen Plaintiffs raised concerns about the Third Fox Decl. on which the United States relies for the first time in its Independent Contractor Reply and Ohlsen Reply and to which the Plaintiffs have had no opportunity to respond. See March 8 A.M. Tr. at 5:8-6:4 (Dow). The Court stated that it perceives that the situation poses two questions: (i) whether the Court should consider the Independent Contractor Motion, the Ohlsen Motion, the C De Baca Motion, and the Sais Motion as rule 56 motions; and (ii) how the Court should mitigate the harm that the Third Fox Decl. causes the Plaintiffs. See March 8 A.M. Tr. at 6:11-7:9 (Court). The Court explained that it had studied the facts and that it seemed that the parties disputed the facts' implications more than the facts themselves, so the Court thought that it could address the Ohlsen Plaintiffs' concerns about the Third Fox Decl. in the Memorandum Opinion and Order's footnotes. See March 8 A.M. Tr. at 6:11-6:9 (Court). The Ohlsen Plaintiffs responded that the Court should consider the Motions under rule 56's standard and opined that such standard provides the Court means to address their concerns about the Fox Decl. See March 8 A.M. Tr. at 7:10-19

         (Tosdal). The Court stated that it would allow the Plaintiffs to argue their concerns about the Fox Decl. at the hearing, or to file a surreply or other briefing. See March 8 A.M. Tr. at 7:20-8:4 (Court). The State Farm Plaintiffs also agreed to construe the Independent Contractor Motion, the Ohlsen Motion, the C De Baca Motion, and the Sais Motion as rule 56 motions and to the Court's proposed solutions regarding the Third Fox Decl. See March 8 A.M. Tr. at 8:7-9 (Court, Mosley). The Court then asked if the parties would consent to the Court deciding the Independent Contractor Motion, the Ohlsen Motion, the C De Baca Motion, and the Sais Motion in one Memorandum Opinion and Order. See March 8 A.M. Tr. at 8:10-9:1 (Court). The Court asked the parties whether it could put the facts from every motion into one factual background section. See March 8 A.M. Tr. at 8:10-9:1 (Court). The Plaintiffs and the United States agreed to the Court's proposal. See March 8 A.M. Tr. at 9:8-14 (Dunn, Mosley, Ortega).

         The United States began the arguments with the Ohlsen Motion's discretionary function issue. See March 8 A.M. Tr. at 10:11-14 (Keegan); id. at 10:16-18 (Keegan). The United States first explained that the Third Fox Decl. addresses unsupported facts that the Ohlsen Plaintiffs include in their Ohlsen Response. See March 8 A.M. Tr. at 12:5-15 (Keegan). The United States also indicated its assumption that the Ohlsen Plaintiffs concede their res ipsa loquitur claim and their non-delegable duty claim, see March 8 A.M. Tr. at 12:16-13:5 (Keegan), and that the Ohlsen Plaintiffs conceded that the choices to hire an independent contractor and which contractor to hire were discretionary decisions, see March 8 A.M. Tr. at 13:6-11 (Keegan).

         The Ohlsen Plaintiffs stipulated to dismissal of their res ipsa loquitur claim and their non-delegable duty claim. See March 8 A.M. Tr. at 13:25-14:5 (Dow). The Ohlsen Plaintiffs would not stipulate that hiring an independent contractor is a discretionary decision and stated that the United States did not include this argument in the Ohlsen Motion. See March 8 A.M. Tr. at 14:5-19 (Dow). C De Baca, Cianchetti, the Sais Plaintiffs, and the State Farm Plaintiffs took the same position as the Ohlsen Plaintiffs. See March 8 A.M. Tr. at 14:20-24 (Court, Dunn, Mosley). The United States contended that it includes the arguments about the choice to hire an independent contractor in the Ohlsen Motion. See March 8 A.M. Tr. at 15:3-5 (Keegan). The Court interjected to express its assumption that the Plaintiffs chose not to sue Isleta Pueblo because of concerns about Tribal Court and/or because of the Pueblo's sovereign immunity. See March 8 A.M. Tr. at 18:22-19:3 (Court). The United States confirmed the Court's assumption. See March 8 A.M. Tr. at 19:4-7 (Keegan).

         Turning to its discretionary function arguments, the United States reiterated background about the authorities under which the Forest Service operates. See March 8 A.M. Tr. at 16:1-17:16 (Keegan). The United States then repeated that, in the Ohlsen Response, the Ohlsen Plaintiffs allege that the Forest Service violated requirements governing Isleta Pueblo's actions and not the Forest Service's conduct. See March 8 A.M. Tr. at 18:15-21 (Keegan). The United States repeated its arguments from the Ohlsen Motion and Ohlsen Response. See March 8 A.M. Tr. at 19:8-20:2 (Keegan); id. at 20:3-10 (Keegan). The United States added that the Ohlsen Plaintiffs incorrectly identify the maximum slash depth as eighteen inches, see March 8 A.M. Tr. at 20:10-13 (Keegan), and explained that the Statement of Work Modification 2 changes the maximum height to twenty-four inches, see March 8 A.M. Tr. at 15-21:1 (Keegan). According to the United States, moreover, the Participating Agreement requires that the thinning crew comply ninety-five percent of the time with the maximum slash height, i.e., ninety-five percent of the slash should comply with the height. See March 8 A.M. Tr. at 21:6-9 (Keegan).

         The United States emphasized that no evidence shows that the slash depth relates to the Dog Head Fire. See March 8 A.M. Tr. at 22:22-23:3 (Keegan). The United States explained, that in the Third Fox Decl., Fox describes that he drew the Participating Agreement's maximum slash depth from Forest Service timber contracts and that the maximum slash depth balances aesthetics with the cost of keeping the slash depth lower. See March 8 A.M. Tr. at 21:10-22:1 (Keegan). The United States described that Fox states in the Third Fox Decl. that he has no knowledge of the slash depth's connection to fire risk. See March 8 A.M. Tr. at 22:2-8 (Keegan). According to the United States, Martinez also testified that he worried about performing a controlled burn in Unit 4 not because of the slash depth, but because of “the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.