|Humboldt Resource Advisory Committee ,|
|13792 [2017–05101]||[TEXT] [PDF]|
|National Park Service|
|Alaska Region Subsistence Resource Commission Program ,|
|14029 [2017–05264]||[TEXT] [PDF]|
An appeals court recently upheld a ruling that the Forest Service was not liable for damages to private land caused by a fire that started on a National Forest. While the agency may be liable for failing to take required actions, it is protected from liability if it has to make discretionary decisions. The Forest Service chose to let the fire burn. In determining how to respond to the fire, the Forest Service was required to but did not complete a checklist which would guide its suppression efforts. The plaintiff argued that, because the agency violated this required action, it was not protected from liability. The court held that, even though the Forest Service violated a mandatory obligation to complete the checklist, the decisions to be made in completing the checklist were discretionary. The court further held that the nature of the agency’s decisions were grounded in social, economic and political concerns. Thus, its decision was the type which the law intended to protect from challenge.
The fire was started by lightning in the Pike and San Isabel National Forests. The fire could have been extinguished by the Forest Service when it first arrived on the scene, but was not. The agency set up a containment line to prevent the fire from spreading to adjacent private land but decided to allow the fire otherwise to burn based on a desire to remove built up fuels in the area as well as safety concerns if the initial fire were to unexpectedly increase in size. High winds then caused the fire to jump the containment lines and it burned 154 acres of an adjacent private ranch. Judge Gorsuch, recently nominated for the U.S. Supreme Court, was a member of the appeals court panel.
The government recently issued guidance on the impact of the current federal hiring freeze which stated that the freeze did not apply to seasonal employees who are needed to meet recurring seasonal workloads. Based on this guidance, both the National Park Service and Forest Service should be able to hire summer employees to meet the seasonal demands at National Parks and Forests. One condition which has to be met is that the agency must inform its OMB Resource Management Office in writing of its hiring plans in advance. The federal hiring freeze was implemented on January 23, 2017 by President Trump and will be in effect until OMB issues a long-term plan to reduce the size of the federal government workforce.
A court recently ruled that the government owes liquidated damages for failing to timely pay certain government employees minimum and overtime wages after the partial government shutdown in 2013. The employees had worked during the shutdown because they were deemed essential for the safety of human life or the protection of property. The government ultimately paid the employees their proper wages, but not on the first regularly scheduled payday following the shutdown as required by law. Because of this delay, the 24,000 employees filed a lawsuit seeking liquidated damages for not being paid in a timely manner under the law.
The government did not pay the employees in their first paycheck because it had determined that the Anti-Deficiency Act (ADA) prevented this additional payment until funds were appropriated by Congress. The court, however, determined that the ADA did not cancel the government’s obligation under the Fair Labor Standards Act (FLSA) to pay the employees in a timely way. While the court recognized that the ADA applied to the actions of government officials, it did not affect any party’s rights under the law. Because the employees were entitled to payment in their next paycheck under law, the failure to pay this amount was not excused by the fact that the ADA prevented any government official from authorizing the payments.
The FLSA, however, states that a party which violates it owes liquidated damages unless the party acted in good faith. The court held that the government did not act in good faith because it did not have an honest intention of determining its legal obligations under the FLSA. The government did not seek a legal opinion of its obligation, nor did it consider if making the employees work during the shutdown without timely payment would violate the FLSA. Instead, the court held, the government merely relied on its view that the ADA controlled the issue. The court also held that the executive agencies could not claim the shutdown was beyond their control because it was done by the legislative branch, finding no relevant distinction between the branches of government.
The liquidated damages are to be in an amount equal to the minimum and overtime wages that the government failed to timely pay. The court asked the plaintiff to make these calculations and present them to the court.