By Gene Johnson
The Associated Press
SEATTLE — A federal appeals court panel has rejected a woman’s lawsuit over her husband’s fatal goring by a mountain goat that had been threatening visitors for years in Olympic National Park.
However, two of the three judges on the panel suggested that plaintiff Susan Chadd of Port Angeles should be allowed to pursue her claims.
Chadd sued the federal government after her husband, 63-year-old Robert Boardman, was gored in the leg by the 370-pound animal in 2010 as he tried to fend it off with a walking stick.
Chadd argued that park officials were negligent in failing to kill or relocate the animal before the attack.
After the goring, the animal stood over Boardman, refusing to allow anyone to get close enough to render aid as he bled to death.
U.S. District Court Judge Robert Bryan in Tacoma previously dismissed Chadd’s case, saying the federal government is immune from lawsuit when officials are exercising discretion in matters of policy.
The 9th Circuit Court of Appeals panel agreed in a 2-1 ruling Monday that coincided with an unusual spate of bison attacks on tourists at Yellowstone National Park. A Mississippi woman suffered minor injuries recently when a bison flipped her after she turned her back to pose for a selfie with the beast.
In the lead opinion Monday, Judge Diarmuid O’Scannlain reasoned that park officials had discretion in deciding how to handle the problem goat.
But the other judge in the majority, Marsha Berzon, wrote that while she was bound by 9th Circuit precedent, she agreed with dissenting Judge Andrew Kleinfeld that “our jurisprudence in this area has gone off the rails” and needs to be reconsidered.
In his dissent, Kleinfeld said the case wasn’t a matter of discretion — just ordinary negligence.
“Letting an identified aggressive 370-pound goat threaten park visitors and rangers for years until it killed one amounted to a failure to implement the formally established park policy for managing dangerous animals,” Kleinfeld wrote. “Written park policy provided a series of steps for dealing with animals dangerous to park visitors, from frightening the animal away to removing or killing it.”
Some legal scholars have long criticized the notion that the federal government is immune from lawsuits when officials exercise discretion, saying that virtually any action or inaction by a government official can be rationalized that way.
One of Chadd’s attorneys, James McCormick said Tuesday that he considered Berzon’s concurring opinion an invitation to ask the 9th Circuit to rehear the case with a larger panel of jurists — and to perhaps clarify the law.
“The intention of the law was to protect high level discretion of policy makers, not the day-to-day actions of people on the ground,” McCormick said. “This is a case that deserves to get tried on the merits.”
