## Facts

- Daniel Reed attended the Burning Man Festival on federally owned land in Nevada managed by the Bureau of Land Management (BLM).
- Reed camped in an area where vehicles were allowed to travel at night.
- A vehicle ran over Reed’s tent while he was sleeping, causing severe injuries.
- BLM had issued a permit authorizing the event under its public-lands management authority.
- Reed sued the United States under the Federal Tort Claims Act (FTCA), alleging BLM negligently:
  - failed to warn (or require warnings) about camping in a nighttime vehicle-travel area;
  - approved a site plan that did not physically separate tents from vehicles;
  - failed to monitor the event as required by regulation and agency guidance;
  - failed to suspend the permit when public safety was allegedly jeopardized.
- The district court granted summary judgment for the government for lack of subject-matter jurisdiction, holding the FTCA discretionary function exception applied.

## Issues

1. Whether BLM’s decisions about warnings to participants (or requiring organizer warnings) were discretionary, policy-based acts barred by the FTCA discretionary function exception.
2. Whether BLM’s approval of the event site plan, including the lack of physical separation between camping and vehicle travel, was a protected discretionary function.
3. Whether alleged deficiencies in event monitoring, including the extent and timing of on-site monitoring, were governed by mandatory directives or instead involved protected discretion.
4. Whether BLM’s decision not to suspend the event permit involved protected discretion, including any required predicate finding of a health-or-safety-affecting violation.

## Decision

- The Ninth Circuit affirmed summary judgment for the United States.
- The court held all challenged conduct fell within the FTCA discretionary function exception, leaving the federal courts without subject-matter jurisdiction.
- The court concluded:
  - warning decisions were discretionary and susceptible to policy analysis;
  - site-plan approval involved balancing considerations tied to public-land multiple-use management;
  - monitoring directives did not mandate specific staffing, hours, or methods, leaving discretionary choices tied to resource allocation and risk assessment;
  - permit suspension required evaluative judgments about whether violations affecting health or safety had occurred and what response was appropriate.

## Legal Principles

- The FTCA discretionary function exception preserves sovereign immunity for claims based on discretionary governmental acts, even if discretion is allegedly abused.
- Under the Berkovitz/Gaubert framework:
  - the exception applies if the challenged conduct involves judgment or choice (not compelled by a mandatory directive); and
  - the judgment is of the type susceptible to social, economic, or political policy analysis.
- General regulatory or manual instructions to “monitor” do not eliminate discretion where they do not prescribe specific operational requirements (such as precise times, staffing levels, or monitoring methods).
- Decisions concerning public-land event permitting and oversight can qualify as policy-based discretionary functions when they require balancing public access, safety, enforcement limits, and agency priorities.

## Conclusion

The Ninth Circuit held that BLM’s permitting and oversight decisions for the festival—including warnings, site layout approval, monitoring practices, and the decision not to suspend the permit—were discretionary, policy-based judgments shielded by the FTCA discretionary function exception, barring the plaintiff’s tort claims for lack of jurisdiction.


Reed ex rel. Allen v. U.S. Dep’t of the Interior, 231 F.3d 501 (9th Cir. 2000)