Reed v. U.S. Department of the Interior

The Department of the Interior’s Bureau of Land Management (BLM) (defendant) issued an event permit for the Burning Man Festival (festival) in Nevada. The BLM issued the permit based on the festival’s past record of compliance with licensing requirements and the multiple-use land-management directive of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701-84. Daniel Reed (plaintiff) attended the festival and pitched a tent in the Black Rock Desert playa, which was owned and managed by the BLM. However, BLM agents did not monitor the festival after 10:00 p.m. In the early morning, Reed was severely injured when a car ran over his tent. Reed sued the BLM in district court under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2679-80, claiming that four of the BLM’s actions fell outside of the FTCA’s discretionary-function exception (exception): (1) failure to warn, or require festival organizers to warn, of the danger of camping in an area that allowed nighttime vehicular travel; (2) approval of a site plan that did not separate cars from tents; (3) failure to monitor the event as required by 43 C.F.R. § 2920.9-2; and (4) failure to suspend the event permit after public safety was jeopardized. BLM Manual H-8372-1 (manual) required BLM agents to monitor events in a manner that considered the permittee’s past record of compliance. Section 2920.9-2 and the manual required a finding that a permit violation affected health and safety, prior to triggering the BLM’s duty to suspend a permit. The district court found in favor of the BLM, holding that the exception applied to the BLM’s actions. Reed appealed.