MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE.

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 thinning3 Treatment Unit 44 ("Unit 4") within the Cibola National Forest5 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 loquitur8 claim against Defendant United States of America based on allegations that the Dog Head Fire started while the thinning crew was masticating9 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 remedies10 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 exception11 divests the Court of subject-matter jurisdiction over the Ohlsen Plaintiffs' claims12; (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, Tomas 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, 2018 (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; Plaintiffs 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 slash20 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 CFDA26 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

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:

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:

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:

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:

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 goshawk45 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' § Al, 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

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 112, 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:

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 3-475).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).

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,

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 Dixon83 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 91:3-1985).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 load123 in Unit 4 following these events, about a year before the Dog Head Fire, the Forest Service had concerns about performing a prescribed burn124 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

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:

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

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

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

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:

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:

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

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:

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"):

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:

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:

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/get_dirs/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, 111 S.Ct. 1267, 113 L.Ed.2d 335 (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, 108 S.Ct. 1954, 100 L.Ed.2d 531 (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

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:

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:

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:

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.joint forestry team.org/joint-chiefs-lands cape-resto ration-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

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

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

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:

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 Marlys 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, 108 S.Ct. 1954; 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

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 F. App'x 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:

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:

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:

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":

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:

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 also submit 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:

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 amount of fuel on the forest floor and the size, the diameter[,] of the fuel because it will burn longer, hotter, and make it harder to control." March 8 A.M. Tr. at 22:18-21 (Keegan). See id. at 22:9-21 (Keegan).

The United States then grouped together several of the Forest Service's purported violations, including the failure to provide a safety plan for the thinning crew and fire engines to accompany the masticator, and argued that such actions did not cause the Dog Head Fire. See March 8 A.M. Tr. at 23:8-13 (Keegan). According to the United States, J. Jiron testified that, after he saw the fire ignite, he considered circling the fire with the masticator to reduce the fuel around the fire and slow the burning, but stated that he did not believe that he could achieve that action in time to escape the fire. See March 8 A.M. Tr. at 23:25-24:8 (Keegan). The United States explained that J. Jiron also testified that E. Jiron and Jaramillo "were not qualified to fight wildland fires." March 8 A.M. Tr. at 24:12-14 (Keegan). The United States added that J. Jiron was qualified to fight such fires and that he testified that fighting the fire would have required twenty men. See March 8 A.M. Tr. at 24:14-21 (Keegan). The United States also commented that J. Jiron's training on the masticator is irrelevant to the case, because the "evidence shows that the fire started" from a spark from the masticator and was sustained by the heavy fuel on the forest floor, March 8 A.M. Tr. at 25:4-9 (Keegan), so J. Jiron's driving did not start the fire, see March 8 A.M. Tr. at 25:9-12 (Keegan).

The United States then reiterated from the Ohlsen Motion its argument that the Forest Service had no mandatory duty dictating how it supervised Isleta Pueblo and that Fox drafted the Participating Agreement based on his discretion. See March 8 A.M. Tr. at 25:14-26:1 (Keegan). The Court asked: "But isn't the reality you're setting up a situation where the Government hides behind sovereign immunity and you've got the tribe [hiding] behind sovereign immunity[;] you're creating a situation [where] the public ... can't hold anybody [liable] for this conduct?" March 8 A.M. Tr. at 26:2-7 (Court). The United States opined that it could not speak for Isleta Pueblo. See March 8 A.M. Tr. at 26:9-10 (Keegan). The Court and the United States then had the following exchange:

Tr. at 26:12-22 (Court, Keegan). The United States replied that Isleta Pueblo proposed the restoration project to the United States, because Isleta Pueblo had done considerable restoration work on its land and wanted to create a boundary in the Cibola National Forest to further protect its land. See March 8 A.M. Tr. at 26:23-27:10 (Keegan). The United States emphasized that, in entering the contract with Isleta Pueblo, the Forest Service advanced its objectives of furthering the partnership with Isleta Pueblo, creating jobs in the local community, and assisting Isleta Pueblo in achieving its own goals. See March 8 A.M. Tr. at 31:16-32:1 (Keegan). The United States explained that the Forest Service had experience with Isleta Pueblo, which had done effective forest restoration work on its own lands, and many members of which were "red-carded" — certified to fight wildland fires.173 March 8 A.M. Tr. at 32:1-12 (Keegan).

The United States repeated its arguments about the decision to allow slash to accumulate, not to engage in a controlled burn, to masticate under unsafe conditions, not to permit early responders to fight the Dog Head Fire, and where to locate the fire engines. See March 8 A.M. Tr. at 33:21-34:25 (Keegan); id. at 33:24-25 (Keegan); id. at 35:19-23 (Keegan); id. at 36:15-37:6 (Keegan); id. at 38:6-24 (Keegan); id. at 38:25-40:13 (Keegan); id. at 46:9-20 (Keegan); id. at 47:25-48:5 (Keegan); id. at 48:16-49:14 (Keegan). Regarding the Ohlsen Plaintiffs' complaints that the Forest Service did not impose fire restrictions on Isleta Pueblo on June 14, 2016, the United States argued that the Fire Plan provides that the Forest Service should consider Stage I Restrictions when the ERC exceeds eighty-five percent, see March 8 A.M. Tr. at 40:24-41:14 (Keegan), but must also consider other factors — such as the risks that restrictions pose for communities, and natural and cultural resources, and the restrictions' limiting public access to national lands — in deciding whether to enter fire restrictions, see March 8 A.M. Tr. at 41:14-16 (Keegan); id. at 43:22-44:2 (Keegan); id. at 44:1-5 (Keegan). The United States explained that the ERC on June 14, 2016, was seventy-seven percent, so, even under the Fire Plan, the Forest Service did not need to enter fire restrictions, see March 8 A.M. Tr. at 43:12-19 (Keegan), and that the Ohlsen Plaintiffs' argument that the Forest Service did not tell Isleta Pueblo that it was entering fire restrictions on June 14, 2016, is a "nonissue, because there were no fire restrictions in place that day," March 8 A.M. Tr. at 44:25-45:1 (Keegan). Regarding the Ohlsen Plaintiffs' arguments that the Forest Service did not perform a site-specific risk assessment, the United States avers that Isleta Pueblo would have masticated on June 14, 2016, even had the Forest Service performed such an assessment, because the Forest Service determined that the risk of masticating was less than the risk of not masticating and, in reaching a determination when to masticate, the Forest Service considered the public's use of the Cibola National Forest, the Forest Service's funding, and the importance of finishing the treatment in Unit 4. See March 8 A.M. Tr. at 45:7-46:8 (Keegan).

The Ohlsen Plaintiffs began by describing that an increased fuel load substantially increases the fire risk, see March 8 A.M. Tr. at 56:21-57:5 (Dow), by explaining that Martinez made the risk assessments to determine when to masticate and when to perform a prescribed burn, see March 8 A.M. Tr. at 57:6-17 (Dow), and by repeating that, once the Forest Service undertook a known risk, like masticating in the conditions that it masticated, the Forest Service had a duty to perform the action non-negligently, see March 8 A.M. Tr. at 59:24-61:10 (Dow). The Court asked, given the Ohlsen Plaintiffs' theory, where the Ohlsen Plaintiffs would draw the line for what conduct is discretionary. See March 8 A.M. Tr. at 61:11-15 (Court). To this question, the Ohlsen Plaintiffs opined that the United States Post Office's decision to deliver mail is discretionary, but running a yellow light to deliver the mail is not discretionary. See March 8 A.M. Tr. at 61:16-18 (Dow); id. at 16-17 (Dow). The Ohlsen Plaintiffs explained that the Forest Service made a discretionary decision when it chose to masticate, but that the Forest Service's actions became non-discretionary when the agency began actions that involved others' safety. See March 8 A.M. Tr. at 61:16-62:22 (Dow). In the Ohlsen Plaintiffs' view, accordingly, the Forest Service had a duty to engage in a risk assessment once it knew that the slash depth exceeded the maximum slash depth in the Participating Agreement and that the fuel load had doubled. See March 8 A.M. Tr. at 67:23-68:1 (Dow).174

Regarding the United States' comments about the maximum slash depth, the Ohlsen Plaintiffs conceded that, at the end of the summer of 2014, Statement of Work Modification 2 raised the maximum slash depth from eighteen to twenty-four inches. See March 8 A.M. Tr. at 66:21-67:6 (Dow). The Ohlsen Plaintiffs described that, in Statement of Work Modification 3, which governed from May 2016 — the year of the Dog Head Fire — the Participating Agreement provides for no maximum slash depth. See March 8 A.M. Tr. at 67:17-23 (Dow).

The Ohlsen Plaintiffs then turned to the Forest Service's actions that the United States asks that the Court subject to the discretionary function analysis. See March 8 A.M. Tr. at 68:2 (Dow). The Ohlsen Plaintiffs conceded that the Forest Service's decision to masticate Unit 4 was a discretionary decision, see March 8 A.M. Tr. at 68:15-18 (Dow), but argued that the decision is "not subject to policy analysis," because the Forest Service had control over how Isleta Pueblo performed the task, see March 8 A.M. Tr. at 68:18-21 (Dow). In the Ohlsen Plaintiffs' view, the Forest Service failed to reasonably undertake its responsibility of supervising the thinning. See March 8 A.M. Tr. at 86:2-74:1 (Dow).

The Court asked the Ohlsen Plaintiffs why they could not sue Isleta Pueblo. See March 8 A.M. Tr. at 74:5-8 (Court). The Ohlsen Plaintiffs replied that Isleta Pueblo has sovereign immunity and that the Ohlsen Plaintiffs would have to proceed through Tribal Court. See March 8 A.M. Tr. at 74:12-15 (Court, Dow). The Court then asked the Ohlsen Plaintiffs about Isleta Pueblo's insurance policy, and the Ohlsen Plaintiffs replied that the policy has several exclusions and a five-million-dollar maximum. See March 8 A.M. Tr. at 74:20-75:2 (Court, Dow). C De Baca, Cianchetti, and the Sais Plaintiffs interjected that they agree to dismiss their claims about the Forest Service's and Isleta Pueblo's fire suppression activities. See March 8 A.M. Tr. at 75:14-76:11 (Dunn).

The United States replied to the Ohlsen Plaintiffs' arguments. See March 8 A.M. Tr. at 76:21 (Keegan). The United States described that the Ohlsen Plaintiffs make several arguments that the record does not support and asks that the Court look at the record. See March 8 A.M. Tr. at 76:21-77:7 (Keegan). The United States also described that Statement of Work Modification 3 addresses masticating Unit 4 so does not contain the slash depth requirements that a contract about trimming or other treatments contains, but noted that Statement of Work Modification 3 indicates a maximum slash depth of two to four inches for smaller and dispersed slash. See March 8 A.M. Tr. at 78:11-79:2 (Keegan). The United States indicated that some ambiguity appears in Statement of Work Modification 2, which specifies a maximum slash depth of eighteen inches on the front page and a maximum slash depth of twenty-four inches on a later page, but argued that the record does not support that Isleta Pueblo did not comply with the twenty-four inch maximum slash depth. See March 8 A.M. Tr. at 79:19-22 (Keegan); id. at 80:1-6 (Keegan). The United States, in response to the Ohlsen Plaintiffs' comments, differentiated, furthermore, fuel load and slash depth, and explained that the fuel load refers to the weight of the material and that slash depth references the material's height. See March 8 A.M. Tr. at 79:11-19 (Keegan). The United States also returned to the Ohlsen Plaintiffs' initial comments whether a decision to hire a contractor is discretionary and indicated that the United States addresses the topic in the Ohlsen Motion at page 23. See March 8 A.M. Tr. at 80:22-81:7 (Keegan).

The Court asked the United States for its thoughts on the Ohlsen Plaintiffs' interpretation of the discretionary function exception — that the Post Office's decision to deliver mail is a discretionary decision but a Post Office employee's decision to run a yellow light is negligence. See March 8 A.M. Tr. at 82:23-83:5 (Court). The United States replied that it agreed with that example. See March 8 A.M. Tr. at 83:6-8 (Keegan). According to the United States, the example does not apply here, however, because all the Forest Service's decisions involved policy considerations. See March 8 A.M. Tr. at 83:13-19 (Keegan).

The Ohlsen Plaintiffs responded that the ERC on June 14, 2016 was ninety percent, as several experts would testify. See March 8 A.M. Tr. at 84:23-85:7 (Dow). The United States insisted that Martinez testified that the ERC on June 14, 2106 was seventy-seven percent. See March 8 A.M. Tr. at 86:15-23 (Keegan). The Court concluded that it would need to review the record and that, at the time, it could not indicate its inclination on the discretionary function exception as applied to the Ohlsen Plaintiffs' claims. See March 8 A.M. Tr. at 87:21-88:5 (Court).

The United States turned to the exhaustion-of-administrative-remedies arguments, and repeated its arguments from the Ohlsen Motion and the Ohlsen Reply. See March 8 A.M. Tr. at 88:6-8 (Court, Keegan); id. at 89:2-90:24 (Keegan). The Ohlsen Plaintiffs responded that the United States knew the facts surrounding the fire and that the Ohlsen Plaintiffs did not know all those facts when they filed the Ohlsen Notice of Claim. See March 8 A.M. Tr. at 92:7-15 (Dow). The Ohlsen Plaintiffs contended that they raised concerns about the Project, which "includes all of those members, and the agency failure to supervise," and the lack of "proper operation and procedures, fire prevention, fire suppression, [and] fire suppression equipment." March 8 A.M. Tr. at 93:12-17 (Dow). To the United States' arguments, the Ohlsen Plaintiffs replied that they alleged that the Dog Head Fire resulted from the Isleta Collaborative Restoration Project, which included the Forest Service, the BIA, and other entities, but that the Ohlsen Plaintiffs did not know which crew caused the fire or Isleta Pueblo's relationship with the United States. See March 8 A.M. Tr. at 92:16-93:9 (Dow).

The Court expressed its concern about the breadth of the Ohlsen Plaintiffs' claims and whether the claims gave the United States notice of the alleged torts' narrowness. See March 8 A.M. Tr. at 93:25-94:8 (Court). The Ohlsen Plaintiffs argued that the United States desires too much detail in the notice of claim, and the Ohlsen Plaintiffs took the position that all the Ohlsen Plaintiffs have to allege to overcome the exhaustion requirement is that the Dog Head Fire occurred and that it caused damage. See March 8 A.M. Tr. at 94:9-95:2 (Dow). The United States replied that the Tenth Circuit has directed district courts to focus on the notice of claim and not on what plaintiffs did or did not know. See March 8 A.M. Tr. at 97:3-12 (Keegan). The Court indicated its initial impression that the Ohlsen Plaintiffs might not have exhausted the administrative remedies for some of their claims. See March 8 A.M. Tr. at 98:7-18 (Court).

The parties moved to the Independent Contractor Motion. See March 8 P.M. Tr. at 2:1-5 (Court, Ortega). The United States repeated its arguments from its Independent Contractor Motion. See March 8 Tr. at 2:24-9:8 (Ortega); id. at 9:19-10:24 (Ortega); id. at 12:8-15:13 (Ortega); id. at 16:6-16:24 (Ortega). The United States argued that the Plaintiffs take the CFDA out of context where they argue that the Isleta Pueblo was a United States employee, because, according to the United States, the Participating Agreement states that Isleta Pueblo and its employees are not federal employees and because no mutual agreement to Forest Service supervision exists, as the Participating Agreement gives supervisory authority to Isleta Pueblo. See March 8 P.M. Tr. at 16:25-17:17 (Ortega); id. at 17:21-18:14 (Ortega); id. at 18:16-20:25 (Ortega). The Court inquired when and why the United States extends federal employee status to contractors, and the United States replied that it extends coverage in, for instance, the context of American Indian health services "to encourage the provision of competent medical care and competent subspecialty services out in rural hospitals." March 8 P.M. Tr. at 21:19-21 (Ortega). See id. at 21:1-25 (Court, Ortega).

Turning to the Plaintiffs, the Court asked first which facts the Plaintiffs dispute. See March 8 P.M. Tr. at 25:24-26:4 (Court). The Ohlsen Plaintiffs responded that, in their view, the key fact in dispute is the Forest Service supervision. See March 8 P.M. Tr. at 26:5-11 (Tosdal). The Court asked whether the parties dispute the extent of Forest Service supervision, because the United States concedes that some Forest Service supervision existed and because an employer-employee relationship may not exist where a principal reviews a contractors' work but does not engage in close, daily supervision. See March 8 P.M. Tr. at 26:12-17 (Court); id. at 26:24-27:13 (Court). The Ohlsen Plaintiffs responded that, under the CFDA, such supervision as the Court describes shows an employer-employee relationship. See Tr. at 27:19-22 (Tosdal).

The Court indicated that although some statutes waive sovereign immunity, the Court hesitates to read a statute to perform that function. See March 8 P.M. Tr. at 28:2-16 (Court). In response, the Plaintiffs directed the Court's attention to the CFDA's legislative history, reading:

which the Plaintiffs take to mean that the CFDA waives sovereign immunity. See March 8 P.M. Tr. at 28:25-29:6 (Tosdal). The Court replied that the statute's language says nothing about waiving sovereign immunity, and that the Court reads the statute as authorizing the Forest Service to enter cooperative agreements and as providing that the FTCA, including the FTCA's exceptions, will govern sovereign immunity. See March 8 P.M. Tr. at 30:20-23 (Court); id. at 31:1-12 (Court). The Ohlsen Plaintiffs emphasized the CFDA's words "other than" in the phrase the cooperator "shall not be deemed to be federal employees other than for the purposes of the FTCA," and suggested that the statute defines who are federal employees. See March 8 P.M. Tr. at 33:8-23 (Tosdal). The Ohlsen Plaintiffs argued that, because they and the Court disagree about the statute's language, the language is ambiguous and the legislative history provides the answer to interpreting the statute. See March 8 P.M. Tr. at 33:24-34:8 (Tosdal). The Ohlsen Plaintiffs added that the Forest Service Grants and Agreements, Forest Service Handbook reflects that cooperators are federal employees when the Forest Service supervises the cooperators' work, and that neither the CFDA nor the Forest Service Grants and Agreements, Forest Service Handbook incorporate the judicially created Lilly factors. See March 8 P.M. Tr. at 34:10-35-12 (Tosdal). The Ohlsen Plaintiffs emphasize that the independent contractor tests contain factors, like who purchases equipment and who pays insurance and social security taxes, irrelevant to the CFDA. See March 8 P.M. Tr. at 36:24-37:11 (Tosdal).

The Court asked why Congress would not have written that the cooperator is a federal employee for FTCA purposes, see March 8 P.M. Tr. at 37:25-38:15 (Court), to which the Plaintiffs pointed the Court again to the legislative history, see March 8 P.M. Tr. at 38:16-39:2 (Tosdal). The Court then asked from what statutes' coverage the CFDA removes cooperators, and the Plaintiffs named employment laws and civil service laws. See March 8 P.M. Tr. at 40:23-41:13 (Court, Tosdal). The Ohlsen Plaintiffs explained that the CFDA contemplates the Forest Service retaining under cooperative agreement firefighters year-round and for non-fire-related work during non-fire seasons. See March 8 P.M. Tr. at 41:15-42:7 (Tosdal). According to the Plaintiffs, because the CFDA establishes Isleta Pueblo's federal employee status, the Participating Agreement cannot override that status. See March 8 P.M. Tr. at 31:8-14 (Tosdal). The Ohlsen Plaintiffs add that the Participating Agreement cannot defeat the CFDA, because contracts cannot violate the federal statutes' policies. See March 8 P.M. Tr. at 42:23-43:13 (citing Fomby-Denson v. Dep't of the Army, 247 F.3d 1366, 1374 (Fed. Cir. 2001)). The Ohlsen Plaintiffs asked that the Court apply the plain meaning of the word "supervision" to determine whether the Forest Service and Isleta Pueblo agreed to supervision, and opined that an employee may have more than one supervisor. See March 8 P.M. Tr. at 43:14-44:13 (Tosdal).

Regarding whether the United States and Isleta Pueblo agreed to Forest Service supervision, the Plaintiffs argued that the Project Administrators worked on the ground to supervise and direct the Project. See March 8 P.M. Tr. at 45:5-47:15 (Tosdal); id. at 47:17-52:7 (Tosdal). The Court asked how a cooperator could not have agreed to Forest Service supervision, see March 8 P.M. Tr. at 52:8-10 (Court), and the Plaintiffs described that the Participating Agreement could have given Isleta Pueblo specifications for thinning and an area to thin, and that the Forest Service could have reviewed the work when completed. See March 8 P.M. Tr. at 52:15-24 (Tosdal). The Court queried how to give the word "supervision" independent meaning when all cooperative agreements would provide for such supervision, and the Plaintiffs responded that they had not seen other cooperative agreements and that the test for mutual agreement to Forest Service supervision is fact specific. See March 8 P.M. Tr. at 52:25-53:21 (Tosdal). The Court asked how the Ohlsen Plaintiffs' proposed test differs from the Lilly factors, and the Plaintiffs explained that they proposed a narrower analysis that excluded such concerns as the equipment used and the taxes paid. See March 8 P.M. Tr. at 53:22-54:9 (Court, Tosdal). The Court asked why it should not borrow the Lilly factors to identify mutual agreement to Forest Service supervision, and the Plaintiffs replied that the Court should borrow the test somewhat but should examine only whether the Forest Service controlled Isleta Pueblo's work. See March 8 P.M. Tr. at 54:10-14 (Court, Tosdal). The Ohlsen Plaintiffs explained that they deemed the verbal instructions at the worksite of primary importance in this analysis then argued that the Participating Agreement, Statements of Work, and Silviculture Prescriptions further dictated the work. See March 8 P.M. Tr. at 56:5-58:17 (Tosdal, Court); id. at 59:8-24 (Tosdal); id. at 60:3-52:3 (Tosdal).

The Ohlsen Plaintiffs offered comments on a couple additional issues. See March 8 P.M. Tr. at 62:12-13 (Tosdal). The Ohlsen Plaintiffs averred that Fox tries to rewrite the Participating Agreement through the Third Fox Decl. and that Fox, who testifies to visiting the thinning crew four to six times a year, lacks personal knowledge to testify what occurred at the work site. See March 8 P.M. Tr. at 62:14-63:17 (Tosdal). The Ohlsen Plaintiffs also opined that a question of fact at least exists whether Isleta Pueblo was a federal employee. See March 8 P.M. Tr. at 63:23-64:6 (Tosdal).

Responding to some United States statements, the Plaintiffs first noted that the Dog Head Fire was not a fluke, because equipment frequently is fires' cause. See March 8 P.M. Tr. at 64:12-21 (Tosdal). The Ohlsen Plaintiffs also stated that a Participation Agreement remains in force until a modification is made and averred that, because Statement of Work Modification 3, but not Statement of Work Modification 2, affects Unit 4, the maximum slash depth for Unit 4 was eighteen inches. See March 8 P.M. Tr. at 69:21-70:17 (Tosdal).

The Court asked the Plaintiffs more about their independent contractor theory, and first clarified that the parties were debating the CFDA's mutually-agreed-to predicate and not the emergency predicate, to which the Plaintiffs answered that they believe that the mutually-agreed-to predicate applies. See March 8 P.M. Tr. at 73:25-74:14 (Court, Tosdal). The Court also asked the Plaintiffs if they see the word "supervise" in the Participating Agreement, and the Plaintiffs identified one location where the word appears — where the Participating Agreement provides that Isleta Pueblo will also supervise the thinning crew. See March 8 P.M. Tr. at 74:15-23 (Court, Tosdal). The Court followed this question by inquiring where the Plaintiffs see the mutual agreement in this case, and the Plaintiffs responded that the CFDA does not require that the Forest Service and the cooperator contract to mutual agreement to Forest Service supervision and that the facts in this case manifest such mutual agreement. See March 8 P.M. Tr. at 74:24-76:12 (Court, Tosdal).

Turning to the United States, the Court asked if it had found authority interpreting the CFDA and whether the United States believes that the Court must address the statute, to which the United States replied that it has not found a case on point, but that the Court does not need to interpret the CFDA, because the Participating Agreement provides that Isleta Pueblo is not a federal employee. See March 8 P.M. Tr. at 76:25-79:7 (Court, Ortega). The United States explained: "[The Participating Agreement] was brought under [§ ]565a-1. But then the Government specifically excluded any dealing of federal employees that is allowed under [§ ]565a-2." March 8 P.M. Tr. at 119:19-22 (Ortega). The Court directed the United States to the CFDA and asked if it agreed that the Participating Agreement is a CFDA contract, and the United States agreed with the Court. See March 8 P.M. Tr. at 79:12-22 (Court, Ortega). The Court pressed whether the CFDA overrides the Participating Agreement, and the United States opined that, pursuant to the Forest Service Handbook Ch. 70 § 72.21(8), at 23, the Wyden Amendment, under which authority alongside the CFDA the Forest Service and Isleta Pueblo entered the Participating Agreement, allows for the United States to exclude contractors from the FTCA. See March 8 P.M. Tr. at 79:23-80:14 (Court, Ortega). The Court asked the United States whether it agrees with the Ohlsen Plaintiffs' interpretation of the CFDA, and the United States stated its agreement. See March 8 P.M. Tr. at 66:24-68:19 (Court, Ortega). The United States opined, however, that the Wyden Amendment overrides the CFDA. See March 8 P.M. Tr. at 80:21-81:15 (Ortega). The Court pursued this line of questioning by asking when Congress enacted the Wyden Amendment, and the United States replied that the enactment occurred in 1999. See March 8 P.M. Tr. at 84:2-85:1 (Court, Ortega). The Court asked for the Wyden Amendment's language, but the United States directed the Court to the Forest Service Handbook Ch. 70 § 72.21(8), at 23, and admitted that it did not have before it the Wyden Amendment's exact language. See March 8 P.M. Tr. at 85:2-3 (Court, Ortega). The Court then inquired about the Wyden Amendment's purpose, given that no court has addressed the CFDA language at issue, and the United States replied: "I believe it was to broaden the scope of agreements that the Forest Service could enter but also to provide insulation or protection from liability to the Forest Service." March 8 P.M. Tr. at 85:11-14 (Ortega). See March 8 P.M. Tr. at 85:5-14 (Court, Ortega). The United States averred that, if the Court accepts that the Forest Service and Isleta Pueblo entered the Participating Agreement pursuant to the CFDA and the Wyden Amendment, the Court does not need to decide the CFDA issue. See March 8 P.M. Tr. at 85:16-21 (Ortega).

The Court asked whether, if it determines that the Wyden Amendment does not override the CFDA, the United States agrees that the Isleta Pueblo and its employees were federal employees. See March 8 P.M. Tr. at 85:22-86:2 (Court). The United States replied in the negative, because neither the Participating Agreement nor the performance under the Participating Agreement contemplated such an employer-employee relationship. See March 8 P.M. Tr. at 86:3-6 (Ortega). The United States admitted, however, in response to the Court's pressing, that it would have difficulty saying that the Participating Agreement overrides the CFDA. See March 8 P.M. Tr. at 86:7-13 (Court, Ortega).

Turning to the facts about Forest Service supervision, the United States averred that no mutual agreement for Forest Service supervision existed. See March 8 P.M. Tr. at 86:16-23 (Ortega). The United States argued that the Forest Service reimbursed Isleta Pueblo for the amount of the Participating Agreement, that the Participating Agreement allowed for specific cutting prescriptions, and that the Silviculture Prescriptions were an internal document. See March 8 P.M. Tr. at 87:4-20 (Ortega). According to the United States, the Forest Service also had the right to inspect the thinning crew's work, and Johnson and Lueras inspected the work irregularly. See March 8 P.M. Tr. at 87:21-88:2 (Ortega, Court). The United States emphasized that independent-contractor cases require evidence of daily supervision to show an employer-employee relationship, and, when the Court replied that no supervision occurs continuously, explained that everyone who hires someone to do yard work hires independent contractors, but still instructs the workers when they incorrectly cut branches. See March 8 P.M. Tr. at 88:7-90:2 (Ortega, Court). Responding to two comments from the Ohlsen Plaintiffs, the United States concluded by noting that the Forest Service did not approach the thinning work with a cavalier attitude, but attempted to reduce the work's dangers, that negligence did not cause Dog Head Fire, and that the Forest Service cannot face strict liability for its role in the fire. See March 8 P.M. Tr. at 92:1-93:1 (Ortega).

The Ohlsen Plaintiffs replied, regarding the Wyden Amendment, that nothing in the Wyden Amendment modifies the CFDA and that the two statutes have different purposes — respectively, forest protection, and fish and wildlife protection. See March 8 P.M. Tr. at 93:15-94:2 (Tosdal). The Court asked for the Ohlsen Plaintiffs' interpretation of the tension between the two statutes. See March 8 P.M. Tr. at 94:3-5 (Court). The Ohlsen Plaintiffs described that, in their view, the Forest Service wrote the Participating Agreement based on statutes with different provisions regarding federal employee status, but the Wyden Amendment cannot negate the CFDA. See March 8 P.M. Tr. at 94:6-15 (Tosdal). The Court queried whether the Plaintiffs agree that the Court cannot read the Participating Agreement to negate the CFDA, see March 8 P.M. Tr. at 94:16-95:4 (Court, Tosdal), and the Plaintiffs agreed with the Court's assessment, see March 8 P.M. Tr. at 95:5-14 (Tosdal). The Ohlsen Plaintiffs concluded by noting their opinion that Johnson sufficiently supervised Unit 4 to meet the CFDA's mutual agreement to Forest Service supervision predicate. See March 8 P.M. Tr. at 95:21-96:21 (Tosdal).

The United States replied by clarifying that it does not view the CFDA as a waiver of sovereign immunity, but as a provision for the option to work under Forest Service supervision, which the Forest Service and Isleta Pueblo declined to use, see March 8 P.M. Tr. at 97:9-13 (Ortega), and that

March 8 P.M. Tr. at 97:2-8 (Ortega). The Court concluded the discussion of the independent-contractor arguments by noting that it has no inclination on the statutory interpretation questions, but that it inclines toward thinking that the Lilly factors counsel deeming Isleta Pueblo an independent contractor. See March 8 P.M. Tr. at 97:16-12 (Court).

The Court turned to the First Objections, the Fox Objections, and the Motion to Strike. See March 8 P.M. Tr. at 98:13-15 (Court). The Court indicated that it would likely resolve the objections in the Memorandum Opinion and Order's footnotes. See March 8 P.M. Tr. at 98:18-25 (Court). The Ohlsen Plaintiffs argued that the Court should ignore Fox' legal conclusions and conclude that he lacks personal knowledge to opine on the matters at the thinning project site. See March 8 P.M. Tr. at 99:2-12 (Tosdal). The Ohlsen Plaintiffs expressed concern with Fox' statements about whether a masticator could spark and cause a fire, and about the slash depth not being related to fire risk. See March 8 P.M. Tr. at 100:15-101:7 (Dow). Regarding Fox' personal knowledge, the Plaintiffs opined that Fox did not have much involvement in the thinning project site, that Johnson attended the site and its operational details, and that Fox testified that the project occupied one small part of his job. See March 8 P.M. Tr. at 102:9-12 (Tosdal). The United States directed the Court to its First Objections Response for its arguments about Fox' personal knowledge, and stated that it had not yet filed its Fox Objections Response or Motion to Strike Response. See March 8 P.M. Tr. at 103:14-104:7 (Ortega). The Court proposed to grant the Plaintiffs a surreply and to give the United States the opportunity to file a surreply as well, and the parties accepted its proposal. See March 8 P.M. Tr. at 104:8-25 (Court, Dow, Ortega). The Court also granted, with the United States' concession, the Ohlsen Plaintiffs' request to file with the surreply a Fox Depo. excerpt. See March 8 P.M. Tr. at 105:4-5 (Tosdal, Court, Ortega, Keegan).

The Court turned to the C De Baca Motion. See March 8 P.M. Tr. at 106:13-19 (Court). The United States repeated its arguments from the C De Baca Motion and C De Baca Reply. See March 8 P.M. Tr. at 107:10-108:20 (Ortega). The Court stated that it believed that C De Baca had filed additional pages to the C De Baca Notice of Claim that it would need to consider in deciding exhaustion. See March 8 P.M. Tr. at 108:21-24 (Court). The United States agreed that the Court should consider claims on additional pages, but stated that it believed that, on the extra pages, C De Baca chronicled her losses and did not add claims. See March 8 P.M. Tr. at 110:4-7 (Ortega); id. at 110:9-12 (Ortega). C De Baca and Cianchetti responded that negligent operation of equipment includes negligent maintenance of equipment and that negligent fire suppression encompasses the failure to have proper fire suppression equipment. See March 8 P.M. Tr. at 111:11-112:18 (Dunn). The Court concluded the discussion by indicating that it might trim C De Baca's and Cianchetti's claims, although it would likely liberally construe the C De Baca Notice of Claim and the Cianchetti Notice of Claim. See March 8 P.M. Tr. at 113:18-114:2 (Court).

Turning to the Sais Motion, the United States explained that it resembled the C De Baca Motion and repeated its arguments from the Sais Motion. See March 8 P.M. Tr. at 114:7-115:14 (Ortega). The Sais Plaintiffs agreed that the C De Baca Response also applies to the Sais Motion. See March 8 P.M. Tr. at 115:19-24 (Dunn). The United States then indicated that it adopted all its arguments on dismissal and/or summary judgment against the State Farm Plaintiffs and Homesite Indemnity, but noted that it might file an additional motion on these parties' failures to exhaust. See March 8 P.M. Tr. at 117:1-15 (Ortega, Court). The State Farm Plaintiffs and Homesite Indemnity agreed that the United States' motions to dismiss and for summary judgment applied to them, and that they joined and adopted the other Plaintiffs' responses. See March 8 P.M. Tr. at 118:2-8 (Tosdal).

27. Supplemental Briefing Motion.

On May 8, 2019, the United States filed the Supplemental Briefing Motion. See Supplemental Briefing Motion at 3. The United States argues that whether the CFDA "provides an independent waiver of the United States sovereign immunity arose for the first time" at the March 8, 2019, hearing. Supplemental Briefing Motion at 2. According to the United States, it will argue in supplemental briefing that "that the CFDA does not provide an independent waiver of sovereign immunity and does not expand the FTCA's waiver of sovereign immunity." Supplemental Briefing Motion at 2 (citing Flute v. United States, 808 F.3d 1234, 1239 (10th Cir. 2015)). The United States adds that the Court has previously permitted supplemental briefing when new issues arises at a hearing and asks that the Court reach a similar conclusion here. See Supplemental Briefing Motion at 3 (citing Pueblo of Pojoaque v. State, 233 F.Supp.3d 1021, 1104 (D.N.M. 2017)(Browning, J.)).

28. Supplemental Briefing Response.

The Ohlsen Plaintiffs respond, see Ohlsen Plaintiffs' Response to Defendant's Motion for Leave to File Supplemental Brief at 1-2, filed May 21, 2019 (Doc. 190)("Supplemental Briefing Response"), and C De Baca, Cianchetti, and the Sais Plaintiffs join the Supplemental Briefing Response, see Plaintiffs' Motion to Join Other Plaintiffs' Responses to United States' Motion for Leave to File Supplemental Brief, filed May 21, 2019 (Doc. 191). The Ohlsen Plaintiffs, C De Baca, Cianchetti, and the Sais Plaintiffs argue that the Plaintiffs raised no new issues at the hearing, and that, throughout the case, the Plaintiffs have raised the legal issue whether the Lilly test or the CFDA provides the test whether Isleta Pueblo was an employee or an independent contractor. See Supplemental Briefing Response at 1. According to the Ohlsen Plaintiffs, C De Baca, Cianchetti, and the Sais Plaintiffs, they do not argue that the CFDA independently waives the United States' sovereign immunity, but that the CFDA "sets forth the proper test for federal employee status under the Tort Claims Act for conduct undertaken under Forest Service cooperative agreements authorized by the CFDA." Supplemental Briefing Response at 2.

29. Supplemental Briefing Reply.

The United States replies. See Defendant's Reply to Ohlsen Plaintiffs' Response to Defendant's Motion for Leave to File Supplemental Brief at 1-3, filed May 31, 2019 (Doc. 198)("Supplemental Briefing Reply"). The United States explains that, in the supplemental briefing, it will argue that the CFDA neither waives sovereign immunity nor extends the FTCA. See Supplemental Briefing Reply at 1 (citing United States v. Nordic Vill., Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); Comes Flying v. U.S. through Bureau of Indian Affairs, 830 F.Supp. 529, 530 (D.S.D. 1993)(Bogue, J.)). The United States adds that the Ohlsen Plaintiffs, C De Baca, Cianchetti, and the Sais Plaintiffs have not shown how supplemental briefing would prejudice them. See Supplemental Briefing Reply at 2.

30. The June 3, 2019, Hearing.

At the June 3, 2019, hearing, the Court explained to the parties that it had completed much of this Memorandum Opinion and Order, and described this Memorandum Opinion and Order's likely conclusions which included disposing of all the Plaintiffs' claims. See Draft Transcript of Hearing at 4:12-9:24 (Court)(taken June 3, 2019)("June 3 Tr."). The United States, nevertheless, indicated that it would "rest on the pleadings" for the supplemental briefing and repeated its request for such briefing. June 3 Tr. at 12:4-5 (Ortega). See id. at 12:5-7 (Ortega). The Court indicated that it was inclined to grant the United States' request and turned to the Plaintiffs. See June 3 Tr. at 12:8-15 (Court). The Ohlsen Plaintiffs175 reiterated their arguments from the Supplemental Briefing Response and added that, given the that the Memorandum Opinion and Order would likely dismiss their case, further briefing would impose a burden on them. See June 3 Tr. at 12:18-13:17 (Tosdal). The Court stated that it would grant the Supplemental Briefing Motion. See June 3 Tr. at 14:5-6 (Court).

31. The Independent Contractor Motion Supplemental Brief.

The United States repeats its argument that

United States' Supplemental Brief at 1, filed June 7, 2019 (Doc. 206)("Independent Contractor Motion Supplemental Brief")(emphasis in Independent Contractor Motion Supplemental Brief, and footnotes omitted). The United States avers that "16 U.S.C. § 565a-2 merely allows a cooperator to be considered a federal employee for FTCA purposes, and only if certain conditions are met, i.e., the cooperators are expressly authorized under an agreement to work under the supervision of the USFS and in fact work under that supervision." Independent Contractor Motion Supplemental Brief at 4-5 (emphasis in Independent Contractor Motion Supplemental Brief). The United States adds "that cooperators working under an agreement are automatically covered by the FTCA." Independent Contractor Motion Supplemental Brief at 5. The United States contends that, had Congress intended "to extend FTCA coverage," the CFDA would provide that cooperators are federal employees for FTCA purposes. Independent Contractor Motion Supplemental Brief at 5. According to the United States,

Independent Contractor Motion Supplemental Brief at 5. The United States asks, accordingly, that the Court apply the Lilly test. See Independent Contractor Motion Supplemental Brief at 6.

32. The Independent Contractor Supplemental Brief Response.

The Ohlsen Plaintiffs respond and repeat their arguments about § 565a-2. See Ohlsen Plaintiffs' Response to United States' Supplemental Brief at 2-6, filed June 10, 2019 (Doc. 208)("Independent Contractor Supplemental Brief Response"). According to the Ohlsen Plaintiffs, § 565a-2's language "shall not be deemed to be Federal employees other than for purposes of chapter 171 of Title 28 and chapter 81 of Title 5" means that cooperators are Federal employees for FTCA purposes. Independent Contractor Supplemental Brief Response at 2 (quoting 16 U.S.C. § 565a-2). The Ohlsen Plaintiffs emphasize that the legislative history supports this interpretation. See Independent Contractor Supplemental Brief Response at 3-4. The Ohlsen Plaintiffs also ask that the Court disregard the United States' arguments in the Independent Contractor Supplemental Brief that the Forest Service did not supervise the thinning crew, because the Court did not give the United States the opportunity to "re-hash" this contention. Independent Contractor Brief Response at 6. See Independent Contractor Brief Response at 6-7.

LAW REGARDING RULE 12(b)(1)

"Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress." Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994)(citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Tafoya v. U.S. Dep't of Justice, Law Enf't Assistance Admin., 748 F.2d 1389, 1390 (10th Cir. 1984)). A plaintiff generally bears the burden of demonstrating the court's jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)("[T]he party invoking federal jurisdiction bears the burden of establishing its existence."). "[Because] federal courts are courts of limited jurisdiction, we presume no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction." U.S. ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999). Rule 12(b)(1) allows a party to raise, by motion, the defense of the court's "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction "generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).

Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. March 11, 2009)(Browning, J.), aff'd on other grounds by 634 F.3d 1170 (10th Cir. 2011). See World Fuel Servs., Inc. v. Nambe Pueblo Dev. Corp., 362 F.Supp.3d 1021, 1086-87 (D.N.M. 2019)(Browning, J.). The United States Court of Appeals for the Fifth Circuit has stated:

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)(quoting Mortensen v. First Fed. Say. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

When making a rule 12(b)(1) motion, a party may go beyond the complaint's allegations to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). In those instances, a court's reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). Where, however, the court determines that jurisdictional issues raised in a rule 12(b)(1) motion are intertwined with the case's merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Say. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997). "When deciding whether jurisdiction is intertwined with the merits of a particular dispute, `the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.'" Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003)(quoting Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002)). "When subject-matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be intertwined." Garcia v. United States, No. CIV 08-0295 JB/WDS, 2009 WL 1300938, at *9 (D.N.M. March 30, 2009)(Browning, J.)(citing Wheeler v. Hurdman, 825 F.2d at 259; Holt v. United States, 46 F.3d at 1003).

LAW REGARDING RULE 12(b)(6)

Rule 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)(citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991)). The complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiff's favor. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))).

A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. "`At the motion-to-dismiss stage, the court does not weigh the evidence, and "is interested only in whether it has jurisdiction and whether the [p]laintiffs plead a claim to relief that is plausible on its face.'" Rivero v. Bd. of Regents of Univ. of New Mexico, No. CIV 16-0318 JB*SCY, 2019 WL 1085179, at *47 (D.N.M. March 7, 2019)(Browning, J.)(quoting Begay v. Pub. Serv. Co. of N.M., 710 F.Supp.2d 1161, 1199 (D.N.M. 2010)(Browning, J.)).

To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires "`more than a sheer possibility that a defendant has acted unlawfully.'" Nowell v. Medtronic Inc., 372 F.Supp.3d 1166, 1245 (D.N.M. 2019)(Browning, J.)(quoting Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). "A court will not construe a plaintiffs pleadings `so liberally that it becomes his advocate.'" Rivero v. Bd. of Regents of Univ. of New Mexico, 2019 WL 1085179, at *48 (quoting Bragg v. Chavez, No. CIV 07-0343 JB/WDS, 2007 WL 5232464, at *25 (D.N.M. Aug. 2, 2007)(Browning, J.)). The Tenth Circuit has stated:

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). See Gallegos v. Bernalillo Cty. Bd. of Cty. Comm'rs, 278 F.Supp.3d 1245, 1259 (D.N.M. 2017)(Browning, J.).

"When a party presents matters outside of the pleadings for consideration, as a general rule `the court must either exclude the material or treat the motion as one for summary judgment.'" Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499; (ii) "documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity," Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (iii) "matters of which a court may take judicial notice," Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499. See Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d at 1103-04 (holding that the district court did not err by reviewing a seminar recording and a television episode on a rule 12(b)(6) motion, which were "attached to or referenced in the amended complaint," central to the plaintiff's claim, and "undisputed as to their accuracy and authenticity"). "[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record." Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).

In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants "supported their motion with numerous documents, and the district court cited portions of those motions in granting the motion." 627 F.3d at 1186. The Tenth Circuit held that "[s]uch reliance was improper" and that, even if "the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee's factual assertions and effectively convert the motion to one for summary judgment." 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, "[b]ecause the district court considered facts outside of the complaint ... it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6)." Nard v. City of Okla. City, 153 F. App'x 529, 534 n.4 (10th Cir. 2005)(unpublished).176 In Douglas v. Norton, 167 F. App'x 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission — which missed deadline the Tenth Circuit analogized to a statute of limitations — and concluded that, because the requirement is not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and "because the district court considered evidentiary materials outside of Douglas' complaint, it should have treated Norton's motion as a motion for summary judgment." Douglas v. Norton, 167 F. App'x at 704-05.

The Court has previously ruled that, when a plaintiff references and summarizes defendants' statements in a complaint, the Court cannot rely on documents containing those statements that the defendants attach in their briefing. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the complaint did not incorporate the documents by reference, nor were the documents central to the plaintiff's allegations in the complaint, because the plaintiff cited the statements only to attack the defendant's reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to a motion to dismiss, which show that a plaintiff was aware of the defendant's alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.)("Crabtree"). The Court in Crabtree determined that the documents did not fall within any of the Tenth Circuit's exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23.

On the other hand, in a securities class action, the Court has ruled that a defendant's operating certification, to which plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, so the Court may consider the operating certification when ruling on the defendant's motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty. Emps.' Ret. Sys. v. Thornburg Mortg. Secs. Tr. 2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.). See, e.g., S.E.C. v. Goldstone, 952 F.Supp.2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a motion to dismiss, electronic mail transmissions referenced in the complaint as "documents referred to in the complaint," which are "central to the plaintiff's claim" and whose authenticity the plaintiff did not challenge); Mata v. Anderson, 760 F.Supp.2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint because they were "documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute").

LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

Rule 56(a) states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant bears the initial burden of `show[ing] that there is an absence of evidence to support the nonmoving party's case.'" Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(alteration in Herrera v. Santa Fe Pub. Sch.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)("Celotex").

Plustwik v. Voss of Nor. ASA, No. CIV 11-0757 DS, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial." Celotex, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis in original).177 Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)("Liberty Lobby"). Alternatively, the movant may show that the nonmoving party lacks the evidence to establish its case at trial, and the nonmovant will have the burden of showing that it can produce sufficient evidence to establish the essential elements of its case. See Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548 (providing that summary judgment is proper where a plaintiff lacks evidence on an essential element of its case); Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1272 (D.N.M. 2005)(Browning, J.)(granting summary judgment because plaintiff lacked competent evidence that defendants defectively manufactured an oil distributor); 11 James Wm. Moore et al., Moore's Federal Practice § 56.40[1][b][iv], at 56-109 to -111 (3d ed. 2018). In American Mechanical Solutions, LLC v. Northland Process Piping, Inc., 184 F.Supp.3d 1030 (D.N.M. 2016)(Browning, J.), the Court confronted such a situation in which the movant did not offer evidence disproving the nonmovant's allegations, but, rather, argued, under the second option in Celotex, that the nonmovant lacked evidence to establish an element of its claim. See 184 F. Supp. 3d at 1075. The Court granted summary judgment for the movant, because the nonmovant — the plaintiff — did not offer expert evidence supporting causation or proximate causation for its breach-of-contract or breach-of-the-implied-warranty-of-merchantability claims as New Mexico law requires to establish a prima facie case for those elements. See 184 F. Supp. 3d at 1075.

The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)("`However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.'" (quoting Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d at 1241)). Rule 56(c)(1) provides: "A party asserting that a fact ... is genuinely disputed must support the assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Liberty Lobby, 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)("[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.") (internal quotation marks omitted)(quoting Coleman v. Darden, 595 F.2d 533, 536 (10th Cir. 1979)). A party may not "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. v. Omer, No. CIV 07-2123 JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed. R. Civ. P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'" Colony Nat'l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505 (citing Vitkus v. Beatrice Co., 11 F.3d at 1539; Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 S.Ct. 867 (1871)). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted)(citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967)). Where a rational trier of fact, considering the whole record, cannot find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Liberty Lobby, 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."); Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505.

There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court of the United States concluded that summary judgment is appropriate where video evidence "quite clearly contradicted" the plaintiff's version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:

Scott v. Harris, 550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).

The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets from Thomson v. Salt Lake Cty. omitted). "The Tenth Circuit, in Rhoads v. Miller, 352 F. App'x 289 [, 291 (10th Cir. 2009)(unpublished),] ... explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.), aff'd, 499 F. App'x 771 (10th Cir. 2012)(unpublished).

LAW REGARDING THE FTCA

It is "axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)(citing United States v. Sherwood, 312 U.S. 584, 586 (1941)); 14 Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 3654, at 156-157 (1976). See Garcia v. United States, 709 F.Supp.2d 1133, 1137 (D.N.M. 2010)(Browning, J.)("The United States cannot be sued without its consent. Congressional consent — a waiver of the traditional principle of sovereign immunity — is a prerequisite for federal-court jurisdiction."). The law generally places the burden of proving federal jurisdiction on the proponent of jurisdiction, and the party suing the United States thus similarly bears the burden of proving that sovereign immunity has been waived. See James v. United States, 970 F.2d 750, 753 (10th Cir. 1992). See also Garcia v. United States, 709 F. Supp. 2d at 1138 ("The plaintiff bears the burden of proving that Congress has waived sovereign immunity for all of his claims."). The terms of the United States' consent define the federal court's jurisdiction to entertain suits against the country. See United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Ewell v. United States, 776 F.2d 246, 248 (10th Cir. 1985). Although a "waiver of immunity should be neither extended nor narrowed beyond that which Congress intended," United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); see Ewell v. United States, 776 F.2d at 248, "[w]aivers of sovereign immunity are to be read narrowly," James v. United States, 970 F.2d at 753 (citing Engel v. United States (Estate of Johnson), 836 F.2d 940, 943 (5th Cir. 1988); Schmidt v. King, 913 F.2d 837, 839 (10th Cir. 1990)). "A waiver of sovereign immunity `cannot be implied and must be unequivocally expressed.'" United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)(quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)). See United States v. Nordic Vill., Inc., 503 U.S. at 33-34, 112 S.Ct. 1011; United States v. Murdock Mach. & Eng'g Co. of Utah, 81 F.3d 922, 930 (10th Cir. 1996).

The Tenth Circuit has emphasized that all dismissals for lack of jurisdiction, including those for a failure to establish a waiver of sovereign immunity under the FTCA, should be without prejudice. See Mecca v. United States, 389 F. App'x 775, 780 (10th Cir. 2010)(unpublished). It has explained: "`A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction ... the dismissal must be without prejudice.'" Mecca v. United States, 389 F. App'x at 780 (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)). The Tenth Circuit held in Mecca v. United States that the district court improperly dismissed with prejudice the plaintiff's FTCA claims after it concluded that it lacked jurisdiction over those claims. See 389 F. App'x at 780-81 ("Here, because the district court found itself without jurisdiction over the FTCA claims, dismissal should have been entered without prejudice, even if the court deemed further amendment futile. We therefore remand with instructions to enter dismissal of these claims without prejudice.").

In 1948, Congress enacted the FTCA, which waives the United States' sovereign immunity for some tort actions against the United States seeking money damages. See 28 U.S.C. § 1346(b); Fed. Deposit Ins. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Warren v. United States, 244 F.Supp.3d 1173, 1212 (D.N.M. 2017)(Browning, J.); Romanach v. United States, 579 F.Supp. 1017, 1019 (D.P.R. 1984)(Laffitte, J.). In enacting the FTCA, Congess waived the United States' sovereign immunity as to

28 U.S.C. § 1346(b). "The FTCA's waiver of sovereign immunity is limited, however." Cortez v. EEOC, 585 F.Supp.2d 1273, 1284 (D.N.M. 2007)(Browning, J.). "If the claim does not fall within the FTCA's express provisions, or if it falls within one of its exceptions, the claim is not cognizable under the FTCA, and the court must deny relief." Cortez v. EEOC, 585 F. Supp. 2d at 1284 (citing Williams v. United States, 50 F.3d at 304-05). Moreover, the only proper party in an action under the FTCA is the United States. See 28 U.S.C. § 2679(a); Romanach v. United States, 579 F. Supp. at 1018 n.1 (holding that no suit under the FTCA may lie against any agency of the United States eo nomine); Painter v. FBI, 537 F.Supp. 232, 236 (N.D. Ga. 1982)(Forrester, J.)(holding that "[t]he FBI may not be sued eo nomine").

Even when the FTCA waives the United States' sovereign immunity, the United States is liable for FTCA claims, if at all, only "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. "The Tort Claims Act was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The FTCA leaves untouched the states' laws that might apply to the United States once Congress removes that immunity. The Supreme Court has noted:

Richards v. United States, 369 U.S. at 6-7, 82 S.Ct. 585. Accordingly, "the United States is placed in the same position as a private individual by rendering the United States liable for the tortious conduct of its employees if such conduct is actionable in the state in which the United States' action or inaction occurred." Cortez v. EEOC, 585 F. Supp. 2d at 1284. Cf. Garcia v. United States, No. CIV 08-0295 JB/WDS, 2010 WL 2977611, at *18 (D.N.M. June 15, 2010)(Browning, J.)("The law of the place where the alleged negligent conduct took place determines the scope of employment under the FTCA." (citing 28 U.S.C. § 1346(b)). See Richards v. United States, 369 U.S. at 9, 82 S.Ct. 585; Williams v. United States, 350 U.S. 857, 857, 76 S.Ct. 100, 100 S.Ct. 761 (1955); Henderson v. United States, 429 F.2d 588, 590 (10th Cir. 1970)).

The United States' liability is coextensive with that of private individuals under the respective states' law, even if comparable government actors or public entities would have additional defenses or additional obligations under that state's law. See United States v. Olson, 546 U.S. 43, 44-47, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005); In re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 288 (5th Cir. 2012)("Because the federal government could never be exactly like a private actor, a court's job in applying the standard is to find the most reasonable analogy. Inherent differences between the government and a private person cannot be allowed to disrupt this analysis." (citing LaBarge v. Cty. of Mariposa, 798 F.2d 364, 366-69 (9th Cir. 1986); United States v. Olson, 546 U.S. at 47, 126 S.Ct. 510)); DeJesus v. U.S. Dep't of Veterans Affairs, 479 F.3d 271, 283 n.9 (3d Cir. 2007)("Under the FTCA, the federal government can only be held liable for breaches of duties imposed on private, rather than state, parties."); Ewell v. United States, 776 F.2d at 248-49; Cox v. United States, 881 F.2d 893, 895 (10th Cir. 1989)(stating that "[t]his and other courts have applied the same rationale in holding that the United States may invoke the protection of a [private] recreational use statute"); Proud v. United States, 723 F.2d 705, 706 (9th Cir. 1984)("But appellants overlook the fact that in enacting the FTCA, Congress — not the Hawaii Legislature — determined the tort liability of the United States. And the FTCA specifically provides that the federal government's tort liability is co-extensive with that of a private individual under state law."). The Tenth Circuit reasoned in Ewell v. United States:

Ewell v. United States, 776 F.2d at 249.

The FTCA "does not apply where the claimed negligence arises out of the failure of the United States to carry out a [federal] statutory duty in the conduct of its own affairs." United States v. Agronics Inc., 164 F.3d 1343, 1345 (10th Cir. 1999). The Tenth Circuit has recognized that "[o]ther courts invoke the same rule by the shorthand expressions of immune `quasi-legislative' or `quasi-judicial' action." United States v. Agronics Inc., 164 F.3d at 1345. Thus, for example, courts have rejected FTCA claims premised upon such administrative/regulatory acts or omissions as: (i) the Federal Aviation Administration's failure to take enforcement action against an entity not complying with federal laws and rules; (ii) the Agriculture Department's failure to prohibit the exportation of disease-exposed cattle; and (iii) various agencies' noncompliance with proper rulemaking procedures. See United States v. Agronics Inc., 164 F.3d at 1346 (collecting cases).

The Court examined the exceptions to the FTCA's waiver of sovereign immunity in Coffey v. United States, 906 F. Supp. 2d at 1157. In that case, a plaintiff brought a wrongful death and negligence action against the BIA based on its decision to contract with a county detention center. See 906 F. Supp. 2d at 1121. The United States argued against liability on the grounds that the detention center was an independent contractor and that the United States' decision to contract with it fell within the FTCA's discretionary-function exemption. See 906 F. Supp. 2d at 1121. The Court agreed on both points. See 906 F. Supp. 2d at 1121. It explained that the BIA's decision to contract with the detention center was "a matter of the BIA's judgment and choice, which is susceptible to policy analysis," and thus protected under the discretionary function exemption. 906 F. Supp. 2d at 1157. It added that the United States "is liable under the FTCA for the actions of its employees only," thereby prohibiting liability for the detention center's actions. 906 F. Supp. 2d at 1164.

LAW REGARDING THE FTCA'S EXHAUSTION REQUIREMENT AND STATUTE OF LIMITATIONS

Two procedural steps limit plaintiffs' abilities to sue pursuant to the FTCA: (i) an administrative exhaustion requirement; and (ii) a statute of limitations. See Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015). Together the steps define the time period within which the plaintiff may bring a suit. See Barnes v. United States, 776 F.3d at 1139. A plaintiff must provide the agency notice of his, her, or its claims, see 28 U.S.C. § 2675(a), and must present the claim within a limited time after the claim accrues, see 28 U.S.C. § 2401(b).

1. Exhaustion Requirements.

The exhaustion requirement is "`jurisdictional and cannot be waived.'" Morrison v. Kache, 576 F. App'x 715, 717 (10th Cir. 2014)(unpublished)(quoting Bradley v. U.S. ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991)). Before bringing an action in federal court, a claimant must present the claim to the appropriate federal agency; the FTCA's jurisdictional statute provides:

28 U.S.C. § 2675(a). This statute "requires that claims for damages against the government be presented to the appropriate federal agency by filing (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d at 852 (quoting Bradley v. U.S. ex rel. Veterans Admin., 951 F.2d at 270).

"[A] claim should give notice of the underlying facts and circumstances `rather than the exact grounds upon which plaintiff seeks to hold the government liable.'" Staggs v. U.S. ex rel. Dep't of Health & Human Servs., 425 F.3d 881, 884 (10th Cir. 2005)(quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d at 853). The Tenth Circuit has added that "the FTCA's notice requirements should not be interpreted inflexibly." Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d at 853. Whether a plaintiff's administrative claim is sufficient to meet 28 U.S.C. § 2675(a)'s notice requirement is a question of law. See Staggs v. U.S. ex rel. Dep't of Health & Human Servs., 425 F.3d at 884; Warren v. United States, 244 F. Supp. 3d at 1213.

2. Filing Deadlines.

Once a tort claim accrues against the United States, 28 U.S.C. § 2401 gives a claimant two years to present that claim in writing to the appropriate federal agency. See 28 U.S.C. § 2401(b) (explaining that claim is "forever barred" unless presented within two years). If the agency denies the claim, the claimant has six months to file suit in federal court. See 28 U.S.C. § 2401(b). The Tenth Circuit has clarified that a party must satisfy both of § 2401's prongs: "28 U.S.C. § 2401(b) bars a tort claim against the United States `unless it is presented to the proper agency within two years of its accrual and suit is commenced within six months of notice of the claim's denial by the agency.'" Ponce v. United States, No. CIV 13-0334 JB/ACT, 2013 WL 6503535, at *14 (D.N.M. Nov. 25, 2013)(Browning, J.)(emphasis in Ponce v. United States)(quoting Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994)).

If the agency fails to make a final disposition of the claim within six months, the claimant may "deem ..." that failure a "final denial of the claim," and proceed with his or her suit under the FTCA. 28 U.S.C. § 2675(a). In the Tenth Circuit, "(at least until there has been a final denial by the relevant agency) there is no limit on when a plaintiff may file a lawsuit predicated on a deemed denial." Barnes v. United States, 776 F.3d at 1140. An agency may "trigger ... § 2401(b)'s six-month limitations period through final denial of administrative FTCA claims after a `deemed denial.'" Barnes v. United States, 776 F.3d at 1141. See Warren v. United States, 244 F. Supp. 3d at 1213.

3. Effect of Failure to Exhaust.

"[A]s a general rule, a premature `complaint cannot be cured through amendment, but instead, plaintiff must file a new suit.'" Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999)(quoting Sparrow v. U.S. Postal Serv., 825 F.Supp. 252, 255 (E.D. Cal. 1993)(Wagner, J.)). This rule exists, because "[a]llowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system." Duplan v. Harper, 188 F.3d at 1199. Courts must dismiss these claims "without regard to concern for judicial efficiency." Ruppert v. Aragon, 448 F. App'x 862, 863 (10th Cir. 2012)(unpublished). Even the filing of an amended complaint may not serve to cure a prematurely filed original complaint. See Stevens v. United States, 61 F. App'x 625, 627 (10th Cir. 2003)(unpublished).

There is at least one limited exception to the general rule. Duplan v. Harper recognizes an exception where the United States "expressly agreed" to the district court's decision to treat the amended complaint as a new action. 188 F.3d at 1199. See Mires v. United States, 466 F.3d 1208, 1211 (10th Cir. 2006)(concluding that there is a new action where plaintiff "sought permission to file — and, with the government's consent and district court's permission, did file — an amended complaint"). See also Warren v. United States, 244 F. Supp. 3d at 1214.

4. Definition of "Sufficient Notice."

Courts define "sufficient notice" based on the facts of each case before them. In Estate of Trentadue ex rel. Aguilar v. United States, the United States contended that the plaintiffs' administrative claim was insufficient for notice of intentional infliction of emotional distress, because it was based on a theory that prison officials had murdered Trentadue, the inmate, and the allegations did not discuss the specific grounds on which the district court relied in awarding damages, "namely the government's treatment of the Trentadue family in the aftermath of his death and its actions in conducting an autopsy after claiming that no autopsy would be performed without prior approval." 397 F.3d at 852. The Tenth Circuit disagreed, holding that the "plaintiffs' administrative claim provided notice that [the United States Department of Justice (`DOJ')] should investigate the prison officials' conduct." 397 F.3d at 853. The Tenth Circuit reasoned that language within the administrative claim "gave DOJ notice of the facts and circumstances surrounding plaintiffs' emotional distress claim and, moreover, is consistent with the plaintiffs' subsequent allegations in their amended complaints." 397 F.3d at 853.

The Tenth Circuit contrasted Estate of Trentadue ex rel. Aguilar v. United States with Dynamic Image Technologies, Inc. v. United States, 221 F.3d 34 (1st Cir. 2000), where the United States Court of Appeals for the First Circuit held that the plaintiff's administrative claim did not put the agency on notice that it should have investigated the potentially tortious conduct, because the plaintiffs administrative claims were for "misrepresentation, libel, slander, contractual interference, and discrimination," and the amended claims for false arrest arose out of two separate incidences. 221 F.3d at 40. The First Circuit stated: "Though prolix, that claim did not contain so much as a hint about the alleged false arrest or the incident that spawned it." 221 F.3d at 40. The First Circuit thus concluded that, "regardless of the labels employed in the amended complaint, that complaint, in substance, seeks recovery based solely on an incident that was not mentioned in the plaintiffs' administrative claim." 221 F.3d at 40 (emphasis omitted).

In Glade ex rel. Lundskow v. United States, 692 F.3d 718 (7th Cir. 2012), a man receiving mental health treatment at a Veterans Administration ("VA") facility alleged that his therapist worsened his condition by initiating a sexual relationship with him. See 692 F.3d at 720. He filed a notice of claim with the VA that "does not mention a failure of anyone to use due care besides the therapist." 692 F.3d at 722. The United States Court of Appeals for the Seventh Circuit, reviewing the notice, commented that "reading the administrative claim you would think the plaintiff was just seeking damages under a theory of respondeat superior against an employer for an employee's battery, and we know that such a theory won't fly under the Tort Claims Act." 692 F.3d at 722. The plaintiff recognized this problem before filing his complaint and thus asserted a "special relationship" theory of liability instead. 692 F.3d at 723. The Seventh Circuit affirmed the district court's decision to dismiss the suit, explaining:

Glade ex rel. Lundskow v. United States, 692 F.3d at 722-23. See Warren v. United States, 244 F. Supp. 3d at 1215.

LAW REGARDING THE DISCRETIONARY FUNCTION EXCEPTION

The FTCA contains several exceptions to its waiver of immunity. See 28 U.S.C. § 2680. The Supreme Court has characterized § 2680(a) as the "boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). These exceptions must be strictly construed in the United States' favor. See U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992)("Waivers of immunity must be `construed strictly in favor of the sovereign' and not `enlarge[d] ... beyond what the language requires.'") (alterations in U.S. Dep't of Energy v. Ohio)(first quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 S.Ct. 26 (1951); then quoting E. Transp. Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 71 S.Ct. 472 (1927)).

The discretionary function exception provides that the FTCA shall not apply to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary-function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Its application is a threshold jurisdictional issue in any FTCA case. See Johnson v. U.S. Dep't of Interior, 949 F.2d 332, 335 (10th Cir. 1991). Cf. Warren v. United States, 244 F. Supp. 3d at 1233 (noting that, at the motion-to-dismiss stage, in an FTCA case, a plaintiff "must establish more than ... abstract negligence" "and, instead, must also first establish that her claims are not based upon actions immunized from liability under the FTCA's discretionary function exception"). In Berkovitz by Berkovitz v. United States, the Supreme Court enunciated a two-prong analysis for determining when the FTCA's discretionary function exception applies. See 486 U.S. at 536, 108 S.Ct. 1954; Domme v. United States, 61 F.3d at 789-90; Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 972-73 (10th Cir. 1994); Kiehn v. United States, 984 F.2d 1100, 1102-03 (10th Cir. 1993). First, the acts or omissions must be "discretionary in nature, acts that `involve an element of judgment or choice.'" United States v. Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz by Berkovitz v. United States, 486 U.S. at 536, 108 S.Ct. 1954). Second, the conduct must be "`based on considerations of public policy.'" United States v. Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting Berkovitz by Berkovitz v. United States, 486 U.S. at 537, 108 S.Ct. 1954). See Garling v. U.S. Envtl. Prot. Agency, 849 F.3d 1289, 1294-95 (10th Cir. 2017)(unpublished).

An action is not discretionary where a statute, regulation, or policy mandates certain conduct, because the employee has "no room for choice." United States v. Gaubert, 499 U.S. 315, 324, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). See Garcia v. U.S. Air Force, 533 F.3d at 1176 ("Conduct is not discretionary if `a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.'" (quoting Berkovitz by Berkovitz v. United States, 486 U.S. at 537, 108 S.Ct. 1954)). On the other hand,

United States v. Gaubert, 499 U.S. at 323, 111 S.Ct. 1267.

Berkovitz by Berkovitz v. United States' second prong protects conduct if it was or could have been "`based on considerations of public policy.'" Kiehn v. United States, 984 F.2d at 1105 (quoting Berkovitz by Berkovitz v. United States, 486 U.S. at 537, 108 S.Ct. 1954). This principle is a result of the rule that the second prong requires that the challenged conduct must be, by its nature, "susceptible to policy analysis." United States v. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. Where agency policy allows an employee to exercise discretion, there is a "strong presumption" that the acts authorized by the policy are grounded in public policy. United States v. Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. Where a plaintiff alleges a negligent omission, it is "irrelevant whether the [omission] was a matter of `deliberate choice,' or a mere oversight," Kiehn v. United States, 984 F.2d at 1105 (quoting Allen v. United States, 816 F.2d 1417, 1422 n.5 (10th Cir. 1987)), because "[t]he failure to consider some or all critical aspects of a discretionary judgment does not make that judgment less discretionary and does not make the judgment subject to liability," Kiehn v. United States, 984 F.2d at 1105.

The two-prong test in Berkovitz by Berkovitz v. United States applies equally to all government employees, regardless of their rank or position: "[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 813, 104 S.Ct. 2755. See United States v. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267 ("Discretionary conduct is not confined to the policy or planning level."); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 811, 104 S.Ct. 2755 ("`Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.'" (quoting Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 97 S.Ct. 1427 (1953))).

In applying the Berkovitz by Berkovitz v. United States analysis, the question of negligence is irrelevant: "When the government performs a discretionary function, the exception to the FTCA applies regardless of `whether or not the discretion involved be abused.'" Redmon v. United States, 934 F.2d 1151, 1157 (10th Cir. 1991)(quoting 28 U.S.C. § 2680(a)). A court must decide first whether the discretionary function exception shields the "government's conduct" before the court addresses the government's duties under the common law. Domme v. United States, 61 F.3d at 789. The Tenth Circuit has explained:

Sydnes v. United States, 523 F.3d 1179, 1184 (10th Cir. 2008).178

LAW REGARDING THE FTCA'S INDEPENDENT CONTRACTOR EXCEPTION

Torts committed through independent contractors' acts are also excepted from the FTCA, although not pursuant to 28 U.S.C. § 2680's exceptions. See Curry v. United States, 97 F.3d at 414 (citing United States v. Orleans, 425 U.S. at 814, 96 S.Ct. 1971; Logue v. United States, 412 U.S. 521, 527, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973)). The FTCA's waiver of sovereign immunity applies to government employees acting within their employment's scope, see, e.g., Tsosie v. United States, 452 F.3d at 1163 (citing Curry v. United States, 97 F.3d at 414), and the statute defines the term "federal employees" for FTCA purposes as "officers or employees of any federal agency," and "federal agency" to include "the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States," but not to "include any contractor with the United States," 28 U.S.C. § 2671. Accordingly, government employees include "officers and employees of federal agencies," but not independent contractors and their employees. Tsosie v. United States, 452 F.3d at 1163 (citing Curry v. United States, 97 F.3d at 414).

"[T]he question whether one is an employee of the United States is to be determined by federal law." Waconda v. United States, No. CIV 06-0101 JB/ACT, 2007 WL 2219472, at *10 (D.N.M. May 23, 2007)(Browning, J.)(quoting Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983)). Under federal law, the analysis focuses on whether the alleged principal controls the contractor's physical performance of his, her, or its work. See Lurch v. United States, 719 F.2d at 337 (citing United States v. Orleans, 425 U.S. at 814, 96 S.Ct. 1971).179 If the principal controls the conduct, the contractor is an employee rather than an independent contractor. See Lurch v. United States, 719 F.2d at 337. "The key inquiry under this control test is whether the Government supervises the day-to-day operations of the individual." Lurch v. United States, 719 F.2d at 337 (citing United States v. Orleans, 425 U.S. at 815, 96 S.Ct. 1971). The Tenth Circuit has directed courts engaging in this inquiry to consider:

Curry v. United States, 97 F.3d at 414 (citing Lilly, 876 F.2d at 859).

RELEVANT LAW REGARDING THE CFDA

The CFDA provides authority under which the Forest Service may enter cooperative agreements with outside entities, including public and private agencies, and other organizations and persons. See 16 U.S.C. § 565a to a-1.180 Congress enacted the statute to resolve concerns about the extent of the Forest Service's authority to enter such agreements. See S. Rep. 94-476 at 1 (1975), reprinted in 1975 U.S.C.C.A.N. 1581, 1582, filed January 7, 2019 (Doc. 106-3) ("S. Rep. 94-476"); H.R. Rep. 94-611 at 1-2 (1975), filed January 7, 2019 (Doc. 106-2) ("H.R. Rep. 94-611"). The Senate Report contains a description of the problems before the CFDA's passage:

S. Rep. 94-476 at 2. By passing the CFDA, Congress specifically sought to address concerns about the Forest Service's and states' inabilities to maintain firefighting crews on continuous bases throughout the year such that the crews were immediately available during wildfires. See S. Rep. 94-476 at 2. The Senate Report states:

S. Rep. 94-476 at 2; H.R. Rep. 94-611 at 2. See 121 Cong. Rec. H34922-23 (daily ed. Nov. 4, 1975)(statements of Rep. AuCoin and Rep. Litton), filed January 7, 2019 (Doc. 106-4)(describing a similar outcome foreseen from the CFDA);

The CFDA's § 565a-2 defines the cooperators' relationship with the Forest Service. See 16 U.S.C. § 565a-2. The section grants the Forest Service authority to supervise the cooperators in specified situations, and provides that, in those situations, other than for the FTCA's and workers' compensation laws' purposes, the cooperators are not federal employees. See 16 U.S.C. § 565a-2. Specifically, the section states:

16 U.S.C. § 565a-2.

The Court concludes that § 565a-2 permits a sovereign immunity waiver where the Lilly factors counsel an employer-employee relationship between the Forest Service and the cooperator. "A waiver of sovereign immunity by the United States must be strictly construed and may not be extended by implication." Comes Flying v. U.S. through Bureau of Indian Affairs, 830 F. Supp. at 530 (United States v. Nordic Vill., Inc., 503 U.S. at 30, 112 S.Ct. 1011). "Waivers of the Government's sovereign immunity, to be effective, must be `unequivocally expressed.'" United States v. Nordic Vill. Inc., 503 U.S. at 33-34, 112 S.Ct. 1011 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). Section 565a-2 expressly and unambiguously permits the FTCA sovereign immunity waiver to apply where the cooperators "perform cooperative work under supervision of the Forest Service in emergencies or otherwise as mutually agreed to." 16 U.S.C. § 565a-2.181 It does not provide, however, an independent sovereign immunity waiver or extend the FTCA's waiver; its language excludes only federal employee status for most statute's purposes. See 16 U.S.C. § 565a-2. As § 565a-2 contains no language to define the breadth of its sovereign immunity waiver other than providing that the FTCA waiver may apply when cooperators work "under supervision of the Forest Service in emergencies or otherwise as mutually agreed to," 16 U.S.C. § 565a-2,182 the Court concludes that § 565a-2 applies the FTCA's sovereign immunity waiver where the supervision rises to the level such that FTCA caselaw deems the relationship an employer-employee relationship.183 Cf. S. Rep. 94-476 at 3 (stating that cooperators will be federal employees for FTCA purposes); Forest Service Handbook Ch. 70 § 72.11(8), at 18 ("Cooperators and their employees may be considered Federal employees for the purposes of tort and worker's compensation, only when the Forest Service supervises their work.").184 "Waivers of sovereign immunity are to be read narrowly," James v. United States, 970 F.2d at 753 (citing Engel v. United States (Estate of Johnson), 836 F.2d at 943; Schmidt v. King, 913 F.2d at 839), and the statute does not explicitly extend the sovereign immunity waiver beyond the waiver in the caselaw describing the supervision that establishes federal employee status, cf. United States v. Nordic Vill., Inc., 503 U.S. at 112, 112 S.Ct. 1011; United States v. Mitchell, 445 U.S. at 538, 100 S.Ct. 1349 ("A waiver of sovereign immunity `cannot be implied and must be unequivocally expressed.'") (quoting United States v. King, 395 U.S. at 4, 89 S.Ct. 1501).185

Moreover, Congress did not enact the CFDA against an empty backdrop in the realm of supervision's relation to the FTCA; Congress likely understood that Forest Service supervision might bring the cooperator into an employer-employee relationship with the Forest Service. The Supreme Court, before the CFDA's enactment, articulated "supervision" over a contractor as a central factor indicating, for the control test distinguishing federal employees from independent contractors, that an employer-employee relationship exists. See Logue v. United States, 412 U.S. at 531-32, 93 S.Ct. 2215. The phrase "work under supervision of the Forest Service ... otherwise as mutually agreed to" keys into the common-law principles of agency and of employment underlying the test, 16 U.S.C. § 565a-2; see Logue v. United States, 412 U.S. at 525-28, 93 S.Ct. 2215 (describing the control test's origins in common law); employer-employee relationships require mutual assent to agency relationships and employer control over employee daily work activities, i.e., close supervision over a contractor's work, required for employment relationships, see Restatement (Second) of Agency § 1 (1958)(describing a principal/agent relationship as depending on mutual consent for the agent to act on the principal's behalf); id. § 2, § 2 comments a-b (describing that an agent who agrees to work with the principal controlling the physical conduct of his work is a servant, or employee); id. § 220 comment h ("The relation of master and servant is indicated by the following factors: an agreement for close supervision or de facto close supervision of the servant's work."); id. § 1 ("The relation which the law calls agency does not depend upon the intent of the parties to create it, nor their belief that they have done so. To constitute the relation, there must be an agreement, but not necessarily a contract, between the parties."). Although the large body of caselaw, including the Lilly test, that has developed to expand on the ideas of control and supervision for FTCA federal employee status did not exist when Congress enacted the statute CFDA, the enactment occurred against the backdrop of Logue v. United States and the existing common law. See, e.g., Tsosie v. United States, 452 F.3d at 1163-65 (describing and applying the control test for independent contractors); Johnson v. United States, 132 F. App'x 715, 716 (9th Cir. 2005)(applying the control test for independent contractors); Hentnik v. United States, No. 02 CIV. 9498 (DC), 2003 WL 22928648, at *3 (S.D.N.Y. Dec. 10, 2003)(Chin, J.)(describing the control test for independent contractors).186 Congress chose, accordingly, to waive sovereign immunity where the FTCA's waiver applies.187

The Court concludes, accordingly, that the best approach to deciding whether such Forest Service supervision exists that the FTCA sovereign immunity waiver applies is to view the relationship through the Lilly test's lens. This test includes:

Curry v. United States, 97 F.3d at 414 (citing Lilly, 876 F.2d at 859).188

ANALYSIS

The Court grants the Independent Contractor Motion,189 the Ohlsen Motion, the C De Baca Motion,190 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. The Court concludes that the Plaintiffs show no genuine dispute of material fact whether Isleta Pueblo was an independent contractor. The Court also concludes that the Plaintiffs show no genuine dispute of material fact whether the discretionary function exception bars 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 March 8 A.M. Tr. at 13:25-14:5 (Dow). 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, see State Farm Complaint ¶¶ 35-37, at 9,191 and non-delegable duty claim, see State Farm Complaint ¶¶ 42-45, at 9-10,192 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). 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 C De Baca Response at 10; Sais Response at 2. Throughout the Factual Background and the Analysis, the Court makes individualized conclusions regarding the Ohlsen Plaintiffs' requests 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.

I. THE OHLSEN PLAINTIFFS AND THE UNITED STATES MAY FILE SURREPLIES TO ADDRESS THE THIRD FOX DECL., AND THE UNITED STATES AND THE PLAINTIFFS MAY FILE SUPPLEMENTAL BRIEFING SURREPLY TO ADDRESS THE CFDA THEORY.

The Ohlsen Plaintiffs and the United States may file surreplies to address the Third Fox Decl., and the United States and the Plaintiffs may file supplemental briefing on the issue whether the CFDA provides an independent sovereign immunity waiver or extends the FTCA's sovereign immunity waiver. Regarding supplemental briefing, the Court has previously explained:

Pueblo of Pojoaque v. State, 233 F. Supp. 3d at 1104. The Court has granted leave for supplemental briefing where the briefing would address new issues. See Pueblo of Pojoaque v. State, 233 F. Supp. 3d at 1104-05. Although the Ohlsen Plaintiffs leave ambiguous in the Motion to Strike whether they desire the Court to consider the Motion to Strike a surreply or seek leave to file a surreply, compare Motion to Strike at 1, with Motion to Strike at 6, at the March 8, 2019, hearing, the Court granted Ohlsen Plaintiffs a surreply to address the Third Fox Decl., and the United States the opportunity to file a surreply in response, the Court treats the Motion to Strike as objections, see March 8 P.M. Tr. at 104:8-25 (Court, Dow, Ortega). The Court concludes that granting the surreply is proper to allow both parties the opportunities to debate the Third Fox Decl., which the United States first includes with the Independent Contractor Reply and the Ohlsen Reply. The Court also concludes that, although the Ohlsen Plaintiffs first raised their CFDA theory in their Ohlsen Independent Contractor Response, see Ohlsen Independent Contractor Response at 24-25, and not at the March 8, 2019, hearing, the CFDA issue poses a question of first impression on which the Court will benefit the most from having the parties' views fully and clearly articulated. As the United States indicated that its supplemental briefing would approximately be less than ten pages, see June 3 Tr. at 18:20-22 (Ortega), permitting the United States to file the briefing and the Plaintiffs to respond will not unduly burden the Plaintiffs.

II. THE COURT CONVERTS THE INDEPENDENT CONTRACTOR MOTION, AND THE OHLSEN MOTION'S, THE C DE BACA MOTION'S, AND THE SAIS MOTION'S REQUESTS FOR DISMISSAL ON DISCRETIONARY FUNCTION EXCEPTION GROUNDS TO RULE 56 MOTIONS FOR SUMMARY JUDGMENT.

The Court converts the Independent Contractor Motion and the Ohlsen Motion's, the C De Baca Motion's, and the Sais Motion's motions to dismiss on grounds that the discretionary function exception divests the Court of subject-matter jurisdiction over the Ohlsen Plaintiffs', C De Baca's, Cianchetti's, and the Sais Plaintiffs' claims to rule 56 motions for summary judgment, as the parties agreed at the hearing, see March 8 A.M. Tr. at 7:10-19 (Tosdal); id. at 4:22-5:4 (Ortega), because the jurisdictional arguments are intertwined with the case's merits, see Redmon By & Through Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991)("Rule 56 governs because the determination of whether the FTCA excepts the government's actions from its waiver of sovereign immunity involves both jurisdictional and merits issues."); U.S. ex rel. Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d at 1159. The Court considers the Ohlsen Motion's, the C De Baca Motion's, and the Sais Motion's failure-to-exhaust arguments under the 12(b)(1) standard, see Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d at 852 ("`Because the FTCA constitutes a waiver of the government's sovereign immunity, the notice requirements established by the FTCA must be strictly construed. The requirements are jurisdictional and cannot be waived.'" (quoting Bradley v. U.S. ex rel. Veterans Admin., 951 F.2d at 270)); see also Mendoza v. United States, 661 F. App'x 501, 501-02 (9th Cir. 2016)(affirming a district court's dismissal of an FTCA claim for failure to exhaust on jurisdictional grounds); Caldwell v. Klinker, 646 F. App'x 842, 846 (11th Cir. 2016)("Unless and until a claimant has exhausted his administrative remedies under the FTCA, the district court lacks subject-matter jurisdiction." (citing Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008))); cf. Barnes v. United States, 776 F.3d at 1148 (treating the FTCA's statute of limitations as a jurisdictional question), because those issues are not intertwined with the case's merits. The Court may consider outside evidence on the failure-to-exhaust arguments without using the rule 56 standard. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d at 1499 (permitting district courts to consider outside evidence on rule 12(b)(1) motions without converting the motion into a motion for summary judgment); Holt v. United States, 46 F.3d at 1003 (same).

III. THE PLAINTIFFS DO NOT SHOW A GENUINE ISSUE OF MATERIAL FACT WHETHER THE FOREST SERVICE AND ISLETA PUEBLO MUTUALLY AGREED TO FOREST SERVICE SUPERVISION SUCH THAT SECTION 565a-2'S PROVISION MAKING COOPERATORS FEDERAL EMPLOYEES APPLIES.

The Court concludes that Isleta Pueblo was not a federal employee for FTCA purposes. As the Forest Service and Isleta Pueblo entered the Participating Agreement pursuant to the CFDA, see Independent Contractor Motion ¶ 5-6, at 4 (citing First Fox Decl. ¶ 4-8, at 1-2; Participating Agreement at 1); Ohlsen Independent Contractor Response ¶¶ 4-5, at 3; Ohlsen Response ¶ 3, at 3 (citing Participating Agreement at 1); Ohlsen Reply ¶ 3, at 10, the Court asks whether the Forest Service and Isleta Pueblo mutually agreed to Forest Service supervision such that Isleta Pueblo is a federal employee for FTCA purposes. See 16 U.S.C. § 565a-2. The Court first reasons that the Wyden Amendment does not override the CFDA's FTCA provisions. Then, as the Court discusses in the Relevant Law Regarding the CFDA section, the Court applies the Lilly test to determine whether the Forest Service and Isleta Pueblo mutually agreed to Forest Service supervision:

Curry v. United States, 97 F.3d at 414 (citing Lilly, 876 F.2d at 859). Based on this analysis, the Court concludes that the Plaintiffs have not shown a genuine dispute of material fact whether, taking the Forest Service and Isleta Pueblo's relationship as a whole, they agreed to Forest Service supervision. See 16 U.S.C. § 565a-2. The Court, accordingly, grants the Independent Contractor Motion.

A. THE WYDEN AMENDMENT DOES NOT OVERRIDE § 565a-2.

Preliminarily, the Court concludes that, contrary to the United States' arguments, see March 8 P.M. Tr. at 65:13-66:3 (Court, Ortega), the Wyden Amendment does not override the CFDA's FTCA provision. "`[W]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.'" Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987)(emphasis in Crawford Fitting Co. v. J. T. Gibbons, Inc.; alteration added)(quoting Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976)). The Wyden Amendment contains no provisions discussing the FTCA or the CFDA. See Pub. L. 105-277 § 323, 122 Stat 2681, as amended by Pub. L. 111-011, § 3001, 123 Stat 991 (2009). It does not discuss the Forest Service's supervisory powers or authority to enter cooperative agreements, but authorizes the Forest Service to use appropriations to enter cooperative agreements aimed at protecting resources within a watershed from natural disaster, and protecting wildlife habitats and other lands; the Wyden Amendment specifically provides:

Pub. L. 105-277 § 323, 122 Stat 2681, as amended by Pub. L. 111-011, § 3001, 123 Stat 991. The United States rests its argument about the Wyden Amendment on the Forest Service Handbook Ch. 70 § 72.21(8), at 23's statement that the amendment's "authority does not provide conveyance of Federal employee status towards cooperator's employees and, therefore, does not provide tort and worker's compensation coverage under such circumstances." Forest Service Handbook Ch. 70 § 72.21(8), at 23. See Independent Contractor Reply at 42; March 8 P.M. Tr. at 65:13-66:3 (Court, Ortega). This statement does not, however, speak to the Wyden Amendment's relation to the CFDA or offer any guidance on whether the Wyden Amendment's general provisions trump the CFDA's specific provisions. Following the interpretative canon articulated above, the Court will not read the Wyden Amendment's general provisions to override the CFDA's specific language about the FTCA. Congress chose to include in the FTCA's sovereign immunity waiver certain of the Forest Service's cooperators, and the Court will not omit these cooperators from the waiver without clear Congressional intent, which the Wyden Amendment does not provide.

B. THE CFDA, PARTICIPATING AGREEMENT, AND THE STATEMENTS OF WORK REFLECT AN INTENT TO HAVE AN INDEPENDENT CONTRACTOR RELATIONSHIP BETWEEN THE FOREST SERVICE AND ISLETA PUEBLO.

The first factor in the Lilly test — the United States' and the contractors' intents — points toward an independent contractor relationship. See Curry v. United States, 97 F.3d at 414 (citing Lilly, 876 F.2d at 859). Although statutory language may evidence parties' intents regarding their relationship, see Logue v. United States, 412 U.S. at 528-29, 93 S.Ct. 2215, neither the CFDA nor the Wyden Amendment under which the Forest Service and Isleta Pueblo entered the Participating Agreement speak to the Forest Service's and the Isleta Pueblo's intents about the Forest Service's supervision of the thinning crew, see 16 U.S.C. § 565a-2; Pub. L. 105-277 § 323, 122 Stat 2681, as amended by Pub. L. 111-011, § 3001, 123 Stat 991. Contra Independent Contractor Motion at 18. The Wyden Amendment contains language about neither the Forest Service's supervisory powers nor about the FTCA. See Pub. L. 105-277 § 323, 122 Stat 2681, as amended by Pub. L. 111-011, § 3001, 123 Stat 991. Although the CFDA contemplates cooperative agreements that provide for Forest Service supervision, see 16 U.S.C. § 565a-2, that the CFDA accounts for such agreements does not shed light on the Forest Service's and Isleta Pueblo's intents. The option to enter an agreement providing for Forest Service supervision reflects that the Forest Service and Isleta Pueblo may have but also may not have entered such an agreement.

The Participating Agreement evidences that the Forest Service and Isleta Pueblo did not intend the Forest Service to supervise the thinning crew's work. The parties generally agree to the Participating Agreement's, Statements of Work's, and Silviculture Prescriptions' contents, although they dispute the contents' implications. See, e.g., Independent Contractor Motion ¶ 6, at 4 (citing Participating Agreement ¶ V(F), at 5); Ohlsen Independent Contractor Response at 3-13.193 As, unless a contractual provision is ambiguous, the meaning of a contract's terms is a question of law, Evensen v. Pubco Petroleum Corp., 274 F.2d 866, 872 (10th Cir. 1960)("Interpretation of contractual language is a question of law, but where the meaning depends upon extrinsic evidence there may result a material conflict or possibility of more than one reasonable inference, and this presents a question of fact rather than law."), the parties' assertions about the Participating Agreement's meanings do not control the Court's decision.

Preliminarily, as the United States concedes, the Participating Agreement's statement that Isleta Pueblo is not a federal employee does not override the § 565a-2. See March 8 P.M. Tr. at 71:13-19 (Court, Ortega). Contra March 8 P.M. Tr. at 63:1-7 (Court, Ortega). That this Participating Agreement provision and the Participating Agreement, Statements of Work, and Agreement Financial Plan generally do not refer to Isleta Pueblo as an "employee" support, however, that the Forest Service and Isleta Pueblo intended an independent contractor relationship. In resolving the United States' and contractors' intents whether the contractor is an employee or independent contractor, the Tenth Circuit has weighed heavily contractual provisions identifying the contractor as an employee or as an independent contractor. See, e.g., Bethel v. United States, 456 F. App'x 771, 778-79 (10th Cir. 2012)(unpublished)("The express language of the contract identifying [University of Colorado School of Medicine] as an independent contractor coupled with the lack of evidence manifesting an intent to create an employee relationship tip the second factor in favor of independent contractor status."); Tsosie v. United States, 452 F.3d at 1164 (considering a contract's express provision that an entity is an independent contractor); Duplan v. Harper, 188 F.3d at 1200 (considering relevant evidence of an independent contractor relationship that the contract identified the physician in question as an independent contractor); Norton v. Murphy, 661 F.2d 882, 884-85 (10th Cir. 1981)(emphasizing that the contracts in question referred to the mail carrier at issue as a contractor and not an employee); Begay v. United States, 188 F.Supp.3d 1047, 1082-83 (D.N.M. 2016)(Browning, J.)(considering an independent contractor provision evidence of an independent contractor relationship). Here, the Participating Agreement states:

Participating Agreement ¶V(F), at 5. See Independent Contractor Motion ¶ 8, at 5 (quoting Participating Agreement ¶ V(F), at 5); Ohlsen Independent Contractor Response ¶ 8, at 13; Ohlsen Independent Contractor Response 6, at 7 (citing Participating Agreement ¶ V(F), at 5). The Participating Agreement and the Statements of Work likewise refer to Isleta Pueblo as "Pueblo," "Cooperator," or "Partner." Ohlsen Independent Contractor Response ¶ 1, at 21-22 (quoting Participating Agreement ¶ V(F), (L), at 5-6; Agreement Financial Plan at 1; Statement of Work Original § 1(E)-(F), at 350-51; id. at §§ 4-12, at 355-370); Statement of Work Modification 3 §§ 1(G)-(H), at 411; Ohlsen Response ¶ 4, at 3 (quoting Statement of Work Original §§ 4-12, at 355-70); Statement of Work Modification 3 §§ 4-11, at 416-430.

Although "Pueblo," "Cooperator," or "Partner" differ from "independent contractor," the Participating Agreement's, Statements of Work's, and Agreement Financial Plan's language does not mean that Isleta Pueblo is a federal employee. Participating Agreement ¶ V(F), (L), at 5-6; Agreement Financial Plan at 1; Statement of Work Original § 1(E)-(F), at 350-51; id. at §§ 4-12, at 355-370; Statement of Work Modification 3 §§ 1(G)-(H), at 411. The Participating Agreement never characterizes Isleta Pueblo as an "employee." Moreover, the CFDA provides for a cooperative agreement and not an independent contractor agreement, see 16 U.S.C. § 565a-2, so language describing Isleta Pueblo as an independent contractor would be inapt.

The Participating Agreement's division of duties between the Forest Service and Isleta Pueblo also weighs toward deeming Isleta Pueblo an independent contractor. In describing the Forest Service's and Isleta Pueblo's duties, the Participating Agreement gives to Isleta Pueblo the responsibilities of supervising and directing the thinning crew's work. See Duplan v. Harper, 188 F.3d at 1200 (considering as factors pointing to an independent contractor relationship that the contract gave the entity in question "the responsibility of selection, assignment, reassignment, transfer, supervision, management, and control of contract doctors," and of designating a doctor to act with "direct supervisory authority"). 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. See Ohlsen Motion ¶ 10, at 6 (citing Second Fox Decl. ¶ 27, at 7); Sais Motion ¶ 12, at 6 (citing Second Fox Decl. ¶ 27, at 7); Ohlsen Response ¶ 10, at 19. The Court disagrees with the Ohlsen Plaintiffs' suggestion that the "also" in this provision means that Isleta Pueblo has supervisory authority alongside Forest Service supervisory authority because the Participating Agreement does not exclude the Forest Service from supervising the thinning crew. See Ohlsen Independent Contractor Response ¶ 6, at 8. In the Court's view, the "also" here builds on duties that the Participating Agreement imposes in the preceding sentence: "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 (emphasis added). These sentences appear, moreover, in the same Participating Agreement section as the sentence classifying Isleta Pueblo as not a federal employee:

Participating Agreement ¶¶ V(F), at 5. Accordingly, the provisions are most logically read as describing the tasks that Isleta Pueblo will perform as an independent contractor.

The Participating Agreement likewise assigns the tasks of managing the thinning crew's daily operations to Isleta Pueblo. It 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. It gives Isleta Pueblo the duties of operating the thinning project and the thinning crew's daily working environment:

Participating Agreement ¶¶ III(A)-(D), at 2. See Ohlsen Motion ¶ 10, at 6 (citing Second Fox Decl. ¶ 27, at 7); Sais Motion ¶ 12, at 6 (citing Second Fox Decl. ¶ 27, at 7); Ohlsen Response ¶ 10, at 19. The Participating Agreement continues:

Participating Agreement ¶ V(J)(3), at 6. Likewise, the Participating Agreement gives Isleta Pueblo responsibility for safeguarding "Tribal employees, the public, and Forest Service personnel, property, materials, supplies and equipment," Participating Agreement ¶¶ III(D), at 2; Participating Agreement ¶ V(F)(3), at 6, and for providing fire safety and bearing liability for fire, see Participating Agreement ¶¶ III (A)-(D), at 2; id. ¶ (V)(F), at 5; Statement of Work Original §§ 3-4, 11, at 355, 364-68; Statement of Work Modification 3 §§ 3-4, 11 at 416, 427-30. See also McDaniel v. United States, 53 F. App'x 8, 11-12 (10th Cir. 2002)(unpublished)("In addition, under the terms of the contract, Brazos was responsible for complying with all applicable safety and health laws and regulations.").

The Participating Agreement does not give the Forest Service comparable supervisory authority. Although the Forest Service has inspection authority under the Participating Agreement, see Participating Agreement ¶¶ IV(B), at 2-3, and the ability to sanction Isleta Pueblo for non-compliance with the Participating Agreement and the Statements of Work, see Participating Agreement ¶¶ V(Y), at 10-11, such authorities do not create an employer-employee relationship, see Logue v. United States, 412 U.S. at 529-30, 93 S.Ct. 2215. In Logue v. United States, the Supreme Court considered persuasive toward finding an independent contractor relationship evidence that

Logue v. United States, 412 U.S. at 529-30, 93 S.Ct. 2215 (providing no citations to quotations). The Tenth Circuit has likewise stated:

McDaniel v. United States, 53 F. App'x at 11-12. Cf. Tsosie v. United States, 452 F.3d at 1164 (deeming an independent contractor relationship to exist where a contract directed the entity in question "to provide professional medical services in both inpatient and outpatient settings, including emergency room physicians on an `as needed' basis. Another Contract provision required that patient care services were to be appropriate and timely in accordance with the standards of care established by recognized medical care organizations."); Begay v. United States, 188 F. Supp. 3d at 1083 (noting that a provision for control over the quality of work does not necessarily convert a relationship into an employer-employee relationship).

The Ohlsen Plaintiffs' argument that the Participating Agreement's language indicating that "The U.S. Forest Service Shall... Inspect the work and provide feedback on how goals are being accomplished," Participating Agreement ¶¶ IV(C), at 3, means that the Forest Service could comment on the means through which and not simply whether the thinning crew was achieving its goals, see Ohlsen Independent Contractor Response ¶ 4, at 6, Ohlsen Independent Contractor Response ¶ 10, at 14, Ohlsen Independent Contractor Response ¶ 12, at 14-15, does not persuade the Court. The Ohlsen Plaintiffs cite the F. Jiron Depo. testimony that the Forest Service ensured that the thinning crew satisfied the Participating Agreement. See Ohlsen Independent Contractor Response ¶ 10, at 14 (citing F. Jiron Depo. 97-9 at 98:13-18). The United States disagrees with this interpretation of the Participating Agreement, see Independent Contractor Reply Plaintiffs' § A4, at 9-10, and the Court agrees with the United States that the Ohlsen Plaintiffs' interpretation is a stretch. The provision in the Participating Agreement gives the United States such feedback authority in the same section that it grants inspection authority. See Participating Agreement ¶¶ IV(B)-(C), at 3. This combination suggests that the two authorities go hand-in-hand, and give the United States authority to verify that Isleta Pueblo adequately achieves the conditions for which the United States, based on the authority in the Participating Agreement's preceding provision, "[d]esignate[s] work areas and provide[s] cutting guidelines for achieving desired condition." Participating Agreement ¶¶ IV(B), at 3. Moreover, F. Jiron's testimony is ambiguous whether the Forest Service supervised the thinning crew's end-result or the steps the thinning crew used to reach that result. See F. Jiron Depo. 97-9 at 98:13-18.

The Forest Service could also, consistent with an independent contractor relationship, provide specific conditions for the thinning work. The Tenth Circuit has rejected the proposition that a detailed contract necessarily shows an employer-employee relationship. See Curry v. United States, 97 F.3d at 415. In Curry v. United States, the Tenth Circuit reasoned:

97 F.3d at 415. In Curry v. United States, the Tenth Circuit upheld a district court's judgment deeming Roybal — a road grader — an independent contractor, where the Forest Service and Roybal's agreement provided

97 F.3d at 413. Here, the Statements of Work and Silviculture Prescriptions, which contain detailed prescriptions for Isleta Pueblo's work, should similarly not transform the relationship into an employer-employee relationship. See Independent Contractor Motion ¶ 31, at 9 (citing First Fox Decl. ¶ 21, at 4; Statement of Work Modification 3 §§ 1, 3-11, at 410-11, 416-430); Ohlsen Independent Contractor Response ¶ 31, at 17; Ohlsen Independent Contractor Response ¶ 3, at 5 (citing Statement of Work Original § 1(A), at 328); Ohlsen Independent Contractor Response ¶ 1, at 4 (citing Participating Agreement at 1 ("The Project has a silviculture prescription, which the crew will follow.")); Independent Contractor Reply Plaintiffs' § A1, at 7; Ohlsen Independent Contractor Response ¶ 1, at 4 (stating that the United States has produced twenty-seven pages of silviculture prescriptions (citing Dixon Depo. 97-6 at 21:13-16; id. at 36:21-37:3; id. at 43:5-11; Silviculture Prescriptions); Ohlsen Independent Contractor Response ¶ 1, at 4 (citing generally Silviculture Prescriptions; and citing Dixon Depo. 97-6 at 38:4-9; id. at 38:18-39:6). The detailed prescriptions reflect that the Forest Service directed Isleta Pueblo's work from afar. See Curry v. United States, 97 F.3d at 415. Thus, whether the Forest Service created the Silviculture Prescriptions to control the thinning crew's work is irrelevant, because the detailed contract does not transform the Forest Service and Isleta Pueblo's relationship into an employer-employee relationship. Cf. Independent Contractor Reply Plaintiffs' § A1, at 7 (citing Videotaped Deposition of Ian Fox at 98:14-25 (taken October 23, 2018), filed February 28, 2019 (Doc. 126-1)("Ian Fox Depo. 126-1"); id. at 99:1-8; F. Jiron Depo. at 74:10-25; id. at 75:1-24; Third Fox Decl. ¶¶ 29-35, at 6-7194). Likewise, that the Statements of Work describe flags and numbers designating areas in which the thinning crew will work and directing the thinning crew's work,195 and that the Forest Service performed the tasks of marking the units, does not make the relationship an employer-employee relationship. See Ohlsen Independent Contractor Response ¶ 2, at 4-5 (citing Statement of Work § 1(D)-(E), at 349-50); Statement of Work Modification 3 §§ 1(F)(G), at 411; Independent Contractor Reply Plaintiffs' § A2, at 8; Ohlsen Motion ¶ 13, at 6 (citing Second Fox Decl. ¶ 33, at 8); Sais Motion ¶ 15, at 6 (citing Second Fox Decl. ¶ 33, at 8); Ohlsen Response ¶ 13, at 19; Ohlsen Independent Contractor Response ¶ 2, at 5 (citing Unit Map, filed December 19, 2018 (Doc. 97-8)); Independent Contractor Reply Plaintiffs' § A2, at 8; Ohlsen Independent Contractor Response (F. Jiron Depo. 97-9 at 69:1-13); Independent Contractor Reply Plaintiffs' § A3; Independent Contractor Motion ¶ 18, at 6 (citing First Fox Decl. ¶ 21, at 4; F. Jiron Depo. 76-2 at 108:24-109:17); Ohlsen Independent Contractor Response ¶ 18, at 16; Ohlsen Response ¶ 11, at 4 (citing Lueras Depo. 98-6 at 30:19-31:7; Kohrman Depo. 98-9 at 101:2-104:23; Silviculture Prescriptions); Ohlsen Reply ¶ 10 and 11, at 12.196

The Court also agrees with the United States that, contrary to the Ohlsen Plaintiffs' arguments, the Statement of Work Original's provisions regarding the timing of the thinning crew's work does not amount to setting the thinning crew's daily schedule. See Ohlsen Independent Contractor Response ¶ 9, at 7; Independent Contractor Reply Plaintiffs' § A9, at 11. Although the Statement of Work Original contains a timetable scheduling what work the Forest Service expected the thinning crew to complete during particular months, see Ohlsen Independent Contractor Response ¶ 13, at 15 (citing Johnson Depo 97-1 at 36:6-14; Statement of Work Original § 12, at 18-19197); Ohlsen Independent Contractor Response ¶ 9, at 7 (citing Statement of Work Original § 12, at 18-19); Independent Contractor Reply Plaintiffs' § A9, at 11; Ohlsen Independent Contractor Response ¶ 9, at (explaining the Forest Service "scheduled Unit 4 for hand thinning to be done August through November 4" (citing Statement of Work Original § 12, at 369-70)); Independent Contractor Reply Plaintiffs' § A9, at 11; see also Statement of Work Modification 2 § 12, at 405,198 in any independent contractor relationship, a principal has a timeframe in which he, she, or it desires the contractor to complete the work. A homeowner may hire, for instance, a professional painter and expect the painter to complete the work within several days' time. Such a relationship is not necessarily an employer-employee relationship because the parties established a general timetable for the task.

Last, the parties disagree whether the Participating Agreement identifies Isleta Pueblo managers or supervisors, given that the Participating Agreement names F. Jiron and Abeita as "contacts" but also assigns to Isleta Pueblo responsibility for supervising the thinning crew's work. Ohlsen Independent Contractor Response ¶ 5, at 6 (citing Participating Agreement ¶ V(A), at 3-4); Independent Contractor Reply Plaintiffs' § A5, at 10 (citing Participating Agreement ¶ V(A), (F), at 3, 5). The Court deems this dispute irrelevant. The Court recognizes that the Participating Agreement does not use the words "manager" or "supervisor" in describing Isleta Pueblo individual's roles in the thinning project, but the Court views the balance of the Participating Agreement to designate daily supervisory authority to Isleta Pueblo. Accordingly, the Court concludes that the first Lilly factor counsels an independent contractor relationship.

C. THE THINNING CREW'S RELATIONSHIP TO THE FOREST SERVICE ALSO EVIDENCES AN INDEPENDENT CONTRACTOR RELATIONSHIP.

The second factor in the Lilly test — "whether the United States controls only the end-result or may also control the manner and method of reaching the result" — also counsels toward finding an independent contractor relationship about which the Plaintiffs have not established a genuine issue of material fact. Curry v. United States, 97 F.3d at 414 (citing Lilly, 876 F.2d at 859). A United States agency can exercise detailed direction over a contractor's end-results before the supervision amounts to an employer-employee relationship; as long as the United States does not direct the contractor's daily work, an independent contractor relationship exists. See Curry v. United States, 97 F.3d at 413-15. In Curry v. United States, the Tenth Circuit affirmed a judgment for the United States in a bench trial involving Roybal's employment operating a road grader199 pursuant to a contract with the Forest Service. See Curry v. United States, 97 F.3d at 413. While on the road grader, Roybal approached a motorcycle, causing the motorcycle to tip over, and the plaintiff to suffer injuries from the fall and from the road grader. See Curry v. United States, 97 F.3d at 413. Roybal's Forest Service supervisor — Joe Cordova — had responsibilities including

97 F.3d at 413. A Forest Service inspector — Pedro Aragon — frequently visited Robyal's work site, and "gave specific orders such as to remove certain debris or to go back and finish cleaning certain areas, making sure that Roybal complied with the contract's specifications." Curry v. United States, 97 F.3d at 413. The Tenth Circuit described:

97 F.3d at 413. The Tenth Circuit affirmed the district court's conclusion, noting: "The USFS monitored his activities to the extent necessary to ensure that the desired results were achieved, but it otherwise gave Roybal discretion in choosing how to perform the contract." 97 F.3d at 415. The Tenth Circuit emphasized: "The [Forest Service] exercised considerable control over Roybal to the extent that the contract was very detailed and specific, but it did not supervise Roybal's day-to-day operations in a way that made him an employee." 97 F.3d at 415. At the other end of the independent contractor case spectrum, in Patterson & Wilder Construction Co. v. United States, 226 F.3d 1269 (11th Cir. 2000), the Eleventh Circuit denied summary judgment and deemed a contractor a federal employee where the United States directed each step in the day of the contractor's employees:

Patterson & Wilder Constr. Co. v. United States, 226 F.3d at 1274-78. See Duplan v. Harper, 188 F.3d at 1201-02 (reversing a district court's conclusion that a doctor was a federal employee where the government required the doctor to meet minimum qualifications, reviewed his performance, and required him to follow the clinic's regulations and dress code); Bird v. United States, 949 F.2d 1079, 1086 (10th Cir. 1991)(classifying as an employee a nurse who was "under [the employee physicians'] actual control to the extent they chose to exercise it"; "was required to work with patients designated by others"; "maintained no separate office"; "could see patients in no other place nor under any other circumstance than as directed by government employees"; and "was under the control and supervision of the government surgeon at the hospital to the same extent that ... a regular employee of the government, was").

The facts of this case resemble the situation in Curry v. United States. Isleta Pueblo furnished the individuals who oversaw the thinning project's daily operations. Cf. Curry v. United States, 97 F.3d at 413 ("[Roybal] had several employees, and he was fully in charge of hiring and firing them, paying their salaries, and paying the necessary taxes."). 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 (citing F. Jiron Depo. 76-2 at 52:12-14; id. at 96:20-25). See Ohlsen Independent Contractor Response ¶ 2, at 9 (citing Johnson Depo. 97-1 at 40:16-20; id. at 72:20-73:1). He either personally instructed the thinning crew or he shared instructions with Zuni who visited F. Jiron daily, and acted as the thinning crew's daily supervisor.200 See Independent Contractor Motion ¶ 45, at 11 (citing F. Jiron Depo. 76-2 at 61:12-23; id. at 94:23-96:25); Ohlsen Independent Contractor Response ¶ 45, at 20 (citing F. Jiron Depo. 97-9 at 61:12-23); Ohlsen Independent Contractor Response ¶ 43, at 20 (citing F. Jiron Depo. 97-9 at 96:4); Independent Contractor Motion ¶ 51, at 12 (J. Jiron Depo. 76-3 at 95:3-19); Ohlsen Independent Contractor Response ¶ 51, at 21. J. Jiron, E. Jiron, and Jaramillo identify Dixon, F. Jiron, and Zuni as their supervisors. See Independent Contractor Motion ¶ 49, at 11 (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). Isleta Pueblo also determined the thinning crew's daily work schedule. See Ohlsen Motion ¶ 28, at 8-9 (citing Second Fox Decl. ¶ 55, at 12); Sais Motion ¶ 32, at 9 (citing Second Fox Decl. ¶ 55, at 12). See also Independent Contractor Motion ¶ 60, at 13 (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; Independent Contractor Motion ¶ 61, at 13 (citing F. Jiron 76-2 at 46:4-15; J. Jiron 76-3 at 51:11-52:10; E. Jiron Depo. 76-4 at 90:15-25); Ohlsen Independent Contractor Response ¶ 61, at 21.

Johnson and Lueras filled a similar role in relation to the thinning crew that the Forest Service filled in relation to Roybal.201 Johnson, like Cordova in Curry v. United States, recorded the thinning crew's progress in a "Participating Agreement Site Visit Report" — or "inspection report" or "contract daily diary report."202 Independent Contractor Motion ¶ 36, at 9-10 (citing Johnson Depo. 60-5 at 56:6-18; F. Jiron Depo. 76-2 at 18:25-24:18; id. at 96:3-11); Ohlsen Independent Contractor Response ¶ 36, at 19 (citing Johnson Depo. 97-1 at 56:6-15; id. at 67:14-21); Ohlsen Independent Contractor Response ¶ 3, at 9-10; Independent Contractor Reply Plaintiffs' § C3, at 14-15.203 Johnson visited the thinning site several times, although he did so irregularly,204 see Independent Contractor Motion ¶ 52, at 12 (citing J. Jiron Depo. 76-3 at 24:3-25:6; id. at 47:3-48:22; id. at 95:22-97:24); Ohlsen Independent Contractor Response ¶ 52, at 21; Independent Contractor Motion ¶ 57, at 12 (citing E. Jiron Depo. 76-4 at 46:14-47:4; id. at 83:24-84:21), and Lueras visited around once a week, see Ohlsen Independent Contractor Response ¶ 13, at 12 (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; Ohlsen Response ¶ 12, at 4-5; Ohlsen Reply ¶ 12, at 12-13. See also Curry v. United States, 97 F.3d at 413 (stating that Aragon visited the work site "many" times). Likewise, like Aragon in Curry v. United States, Johnson and Lueras identified and notified the thinning crew of specific problems to resolve to satisfy the Forest Service's conditions. See Curry v. United States, 97 F.3d at 413-15; Ohlsen Independent Contractor Response ¶ 12, at 12 (citing F. Jiron Depo. 97-9 at 20:8-24); Ohlsen Independent Contractor Response ¶ 4, at 10 (citing Site Visit Report at 1; and citing Johnson Depo. 97-1 at 70:4-8); Independent Contractor Reply Plaintiffs' § C4, at 15; Ohlsen Independent Contractor Response ¶ 5, at 8 (citing Contractor Daily Diary 97-18 at 1; Johnson Depo. 97-1 at 71:7-16); Independent Contractor Reply Plaintiffs' § C5, at 15; Independent Contractor Motion ¶ 6, at 10 (citing Contract Daily Diary 97-19 at 1; Johnson Depo. 60-5 at 71:19-72:4); Independent Contractor Reply Plaintiffs' § C6, at 15-16; Ohlsen Independent Contractor Response ¶ 7, at 10 (citing Johnson Depo. 97-1 at 73:4-74:23; Contract Daily Diary 97-20 at 1); Independent Contractor Reply Plaintiffs' § C7, at 16; Ohlsen Independent Contractor Response ¶ 13, at 12 (citing Lueras Depo. 97-29 at 36:3-18); Ohlsen Independent Contractor Response ¶ 13, at 12 (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; Ohlsen Response ¶ 14, at 5 (citing Lueras Depo. 98-6 at 33:2-17; id. at 35:3-20); Ohlsen Reply ¶ 13-16, at 13; Ohlsen Independent Contractor Response ¶ 13, at 12 (citing Lueras Depo. 97-29 at 35:9-36:2); Independent Contractor Reply Plaintiffs' § C13, at 18-19; Ohlsen Response ¶ 15, at 5 (citing Lueras Depo. 98-6 at 39:2-16); Ohlsen Reply ¶¶ 13-16, at 13; Ohlsen Response ¶ 16, at 5 (citing Johnson Depo. 98-3 at 65:6-66:9; id. at 123:11-124:23; id. at 128:20-24); Ohlsen Reply ¶ 13-16, at 13; Ohlsen Independent Contractor Response ¶ 3, at 6 (citing Johnson Depo. 97-1 at 37:17-38:9); Independent Contractor Reply Plaintiffs' § A3, at 9.

That Johnson sometimes communicated with the thinning crew members rather than their leads and that the crew members listened to him does not put the Forest Service in an employer relationship with Isleta Pueblo. See Ohlsen Independent Contractor Response ¶ 12, at 11-12 (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. Johnson largely communicated through F. Jiron and Zuni, see Independent Contractor Motion ¶ 54, at 12 (citing J. Jiron Depo. 76-3 at 47:1-15; id. at 95:1-97:24); Ohlsen Independent Contractor Response ¶ 54, at 21, and turned to the thinning crew members only if no higher authority were available, see Ohlsen Independent Contractor Response ¶ 12, at 11-12 (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. These communications suggest that Johnson did not daily direct the thinning crew members as the Isleta Pueblo supervisors did. Moreover, Roybal viewed Cordova as his boss, but the Tenth Circuit upheld that an independent contractor relationship existed. See Curry v. United States, 97 F.3d at 413.

The parties raise several points of contention about Johnson's and Lueras' relationships with the thinning crew. The parties argue, for instance, whether Johnson monitored the work progress and quality, and had a regular route that included reviewing the thinning site, or engaged in minor interactions to discuss specifications and progress with the thinning crew. See, e.g., Independent Contractor Motion ¶ 38, at 10 (citing Johnson Depo. 60-5 at 54:4-55:19; Johnson Depo. 76-1 at 130:12-25; F. Jiron Depo. 76-2 at 20:11-18; id. at 93:20-94:1; J. Jiron Depo. 76-3 at 24:3-25:6; id. at 27:6-28:10; id. at 47:1-48:22; id. at 96:1-99:11; E. Jiron Depo. 76-4 at 46:3-47:4; Jaramillo Depo. 76-5 at 15:8-22); Independent Contractor Motion ¶ 39, at 10 (Johnson Depo. 60-5 at 39:17-40:22; id. at 52:11-55:19; id. at 67:9-68:19; id. at 71:1-72:13; Johnson Depo. 76-1 at 130:11-131:7; F. Jiron Depo. 76-2 at 22:1-24:18, id. at 28:17-29:7; J. Jiron Depo. 76-3 at 46:2-48:22; E. Jiron Depo. 76-4 at 46:3-47:4, id. at 83:10-84:21); Ohlsen Independent Contractor Response ¶ 38, at 10; id. ¶ 39, at 19-20; id. ¶ 57, at 21 (citing E. Jiron 76-4 at 46:21-47:4), Independent Contractor Reply Def.'s UMF No. 38-Def.'s UMF No. 39, at 28-29; Independent Contractor Motion ¶ 57, at 12 (citing E. Jiron Depo. 76-4 at 46:3-47:4, id. at 83:10-84:21). The parties also dispute whether to emphasize that Johnson spoke to J. Jiron only a "little bit" or that Johnson inspected J. Jiron's work. See Independent Contractor Motion ¶ 55, at 12 (citing J. Jiron Depo. 97-3 at 48:1-22); Ohlsen Independent Contractor Response ¶ 55, at 21 (citing J. Jiron Depo. 97-3 at 24:3-25:6; id. at 48:6-22). Likewise, the parties disagree whether Johnson's telling the thinning crew which trees to hand thin or the size trees to thin, and Lueras' or Johnson's clarifying when the unit was close to finished, see Ohlsen Independent Contractor Response ¶ 11, at 11 (citing J. Jiron Depo. 97-3 at 98:3-11; id. at 98:12-25), means that the Forest Service supervised the thinning crew's day-to-day operations, see Independent Contractor Reply Plaintiffs' § C11, at 17-18. According to the Plaintiffs, F. Jiron testified that Johnson supervised the thinning project for the Forest Service. See Ohlsen Independent Contractor Response ¶ 11, at 11 (citing F. Jiron Depo. 97-9 at 34:23-25).

The Court does not think that these disputes are issues of material facts in this case.205 The terminology used to describe Johnson's actions in reviewing the thinning site does not change the facts, and the Ohlsen Plaintiffs' evidence does not portray a different story than that the Court tells in the Factual Background. "Under this `independent contractor' exception, the United States cannot be liable for a contractor's acts unless it exercises `federal authority to control and supervise the detailed physical performance and day to day operations of the contractor.'" Cabalce v. VSE Corp., 914 F.Supp.2d 1145, 1160-61 (D. Haw. 2012)(Seabright, J.)(emphasis in Cabalce v. VSE Corp.)(quoting Autery v. United States, 424 F.3d at 955). The Ohlsen Plaintiffs here do not show such close supervision as, for instance, that in Patterson & Wilder Const. Co. v. United States. The evidence is not such that it shows Johnson managing the day-to-day thinning operations — when they begins, when they end, how the thinning crew masticates. The evidence shows a situation very like that in Curry v. United States, wherein supervisors came to the thinning site and directed the thinning crew how to achieve the project's goals.206

The Ohlsen Plaintiffs and the United States also argue regarding the testimony of Elaine Kohrman, the Forest Supervisor of Cibola National Forest and National Grasslands,207 on Forest Service employees' roles working with Isleta Pueblo and regarding the definition of Project Administrator. The Delegation identifies Johnson and Hudson as the Project Administrators. See Ohlsen Independent Contractor Response ¶ 7, at 7 (citing Delegation at 1); Independent Contractor Reply Plaintiffs' § A7, at 10. According to the Plaintiffs, Kohrman testified that the Delegation defines Forest Service employees' responsibilities "for supervising the activities of the project workers." Ohlsen Independent Contractor Response ¶ 15, at 13 (citing Delegation; Kohrman Depo. 97-4 at 209:1-18). The United States responds that Kohrman explained that "the Pueblo was responsible for supervising their employees, and that the responsibilities were `outlined in the delegation of authority' in the agreement." Independent Contractor Reply Plaintiffs' § C15, at 19 (quoting Kohrman Depo. 97-4 at 209:10). Regarding the Project Administrator's role, the Plaintiffs cite the Statements of Work's description of 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 (citing Statement of Work Original § 2(A), at 351).208 They also cite Kohrman's testimony that the Project Administrators' role "was `to work on the ground with the Pueblo and the crew and manage the operational on-the-ground activities.'" Ohlsen Independent Contractor Response ¶ 7, at 7 (citing Kohrman Depo. 97-4 at 178:3-9). The United States avers that the Ohlsen Plaintiffs' citation to the Statement of Work Original and Kohrman's testimony do not show that the Forest Service supervised the thinning crew. See Independent Contractor Reply Plaintiffs' § A7, at 10-11.

The Court agrees with the United States that this evidence is not sufficient to show an issue of material fact as to the Forest Service and Isleta Pueblo's relationship. As discussed in the Analysis' preceding section, the Participating Agreement, which the Statements of Work supplement, see Statement of Work Original at 1; Statement of Work Modification 3 at 1, designates daily supervisory authority to Isleta Pueblo. Kohrman's one-line statement about the Project Administrators' job does not outweigh the facts describing Johnson's, Hudson's, and Lueras' interactions with the thinning crew. The facts show that Johnson, Hudson, and Lueras worked "on the ground" with the thinning crew as Kohrman asserts, Ohlsen Independent Contractor Response ¶ 7, at 7 (citing Kohrman Depo. 97-4 at 178:3-9), but did not perform duties rising to day-to-day supervision.209

Accordingly, the Court concludes that the second Lilly factor counsels deeming Isleta Pueblo an independent contractor. "[T]here must be substantial supervision over the day-to-day operations of the contractor in order to find that the individual was acting as a government employee," Cabalce v. VSE Corp., 914 F. Supp. 2d at 1160-61 (emphasis in Cabalce v. VSE Corp.)(quoting Autery v. United States, 424 F.3d at 957), and the Plaintiffs have not produced evidence establishing such substantial supervision. Although Johnson, Lueras, and Hudson gave detailed directions for meeting the Participating Agreement's and Statements of Work's specifications, a genuine issue of material fact does not exist whether they supervised the thinning crew's daily activity.210

D. THE LILLY FACTORS REGARDING WHO OWNED THE THINNING CREW'S EQUIPMENT AND WHO PAID THE THINNING CREW WORKERS' SOCIAL SECURITY TAXES WEIGH SLIGHTLY TOWARD AN INDEPENDENT CONTRACTOR RELATIONSHIP.

The Court addresses the remaining Lilly factors — "(3) whether the person uses h[is] 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" — in two groups and out of order, because factors three and five raise similar issues. Curry v. United States, 97 F.3d at 414 (citing Lilly, 876 F.2d at 859). The Court addresses factors three and five here. It concludes that these factors do not counsel an employer-employee relationship.

The parties dispute whether the Forest Service or Isleta Pueblo bore the costs for equipment and social security taxes. Isleta Pueblo "owned and maintained the masticator." Independent Contractor Motion ¶ 26, at 8 (citing First Fox Decl. ¶ 12, at 3; Participating Agreement ¶ III(B), V(S), at 2, 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). Isleta Pueblo first paid the Project's costs, including employee wages and social security, and the costs for equipment, but it sent the Forest Service invoices and received reimbursement for its costs. See Independent Contractor Motion ¶ 22-23, at 7 (citing Participating Agreement ¶¶ III (A)-(D), (V)(F) at 2, 5; Statement of Work Modification 3 §§ 3-4, 11 at 416, 427-30; J. Jiron Depo. 76-3 at 100:2-4; E. Jiron Depo. 76-4 at 83:10-19); Ohlsen Independent Contractor Response ¶¶ 22-23, at 16 (citing Participating Agreement ¶¶ IV(A), at 5; Dixon Depo. 97-6 at 116:6-11); id. at 128:9-25; and citing generally Request for Reimbursement (dated April 7, 2015), filed December 19, 2018 (Doc. 97-23)("Request for Reimbursement 97-23"); Request for Reimbursement (dated January 20, 2015), filed December 19, 2018(Doc. 97-24)("Request for Reimbursement 97-24"). Isleta Pueblo also supplied and purchased all equipment meeting the Participating Agreement's definition of "equipment" — material "having a fair market value of $5,000.00 or more per unit and a useful life of over one year," Independent Contractor Motion at 7 n.5 (citing Participating Agreement ¶ V(S), at 9), Independent Contractor Motion ¶¶ 24-25, at 7-8 (citing First Fox Decl. ¶ 13-14, at 3; Participating Agreement ¶¶ III (A)-(D), at 2; id. ¶ (V)(F), at 5; (V)(S), at 9; Statement of Work Modification 3 §§ 3-4, 11 at 426, 427-30; Johnson Depo. 76-1 at 112:21-113:19; F. Jiron Depo. 76-2 at 99:16-23; J. Jiron Depo. 76-3 at 99:1-11), but it used Forest Service funds from invoice payments to purchase equipment in the lay sense of the word, including "chain saws, tools, parts for the masticator, rental trucks, and other equipment," Ohlsen Independent Contractor Response ¶¶ 24-25, at 16-17 (citing F. Jiron Depo. 97-9 at 100:3-12; id. at 119:9-17; Dixon Depo. 97-6 at 118:2-121:18; Request for Advance or Reimbursement 97-3 at 1-7).

The Forest Service and Isleta Pueblo's reimbursement arrangement implies a closer connection than an independent contractor relationship where the contractor runs a separate business and bills the United States an agreed-to amount for services. Cf. Woodruff v. Covington, 389 F.3d at 1127 (indicating, in concluding that a contractor was an independent contractor, that "he billed the Army separately"); Curry v. United States, 97 F.3d at 413 ("Roybal did not receive a salary under this contract; rather, he periodically billed the USFS for the work he had completed, usually every two weeks. He had several employees, and he was fully in charge of hiring and firing them, paying their salaries, and paying the necessary taxes."); Norton v. Murphy, 661 F.2d at 884-85 ("Murphy pays self-employment Social Security tax, and there is no employee withholding tax on the monthly contract payments made by the United States to Murphy."). The Forest Service contributed 77.15 percent to financing the forestry project which included the thinning crew's work, as compared to Isleta Pueblo's 22.85 percent. See Agreement Financial Plan at 1. The Forest Service, for instance, provided $421,961.81 in cash to Isleta Pueblo for salaries and labor, while Isleta Pueblo contributed $78,000.00 to the total value for salaries and labor. See Agreement Financial Plan at 1. Likewise, the Forest Service provided Isleta Pueblo $169,999.20 for equipment, compared to Isleta Pueblo's $35,000.00 contribution to the total equipment costs, and the Forest Service provided all the funding for supplies and material — $115,200.00. See Agreement Financial Plan at 1.

Isleta Pueblo managed, however, the project's funds. The Forest Service did not calculate the thinning crew workers' social security in its accounting and did not purchase for Isleta Pueblo the equipment for the thinning project. See Independent Contractor Motion ¶ 22-23, at 7 (citing Participating Agreement ¶¶ III (A)-(D), (V)(F), at 2, 5; Statement of Work Modification 3 §§ 3-4, 11 at 416, 427-30; J. Jiron Depo. 76-3 at 100:2-4; E. Jiron Depo. 76-4 at 83:10-19); Ohlsen Independent Contractor Response ¶¶ 22-23, at 16 (citing Participating Agreement ¶¶ IV(A), at 5; Dixon Depo. 97-6 at 116:6-11; id. at 128:9-25; and citing generally Request for Reimbursement 97-23; Request for Reimbursement 97-24); Ohlsen Independent Contractor Response ¶¶ 24-25, at 16-17 (citing F. Jiron Depo. 97-9 at 100:3-12; id. at 119:9-17; Dixon Depo. 97-6 at 118:2-121:18; Request for Reimbursement 97-23 at 1-7). The Participating Agreement assigns to Isleta Pueblo the responsibilities for maintaining accounting records, see Participating Agreement ¶ V(J)(2), at 6, for "control over and accountability for" the funds, Participating Agreement ¶ V(J)(3), and for documentation to support the accounting records, see Participating Agreement ¶ V(J)(4).

The Court concludes that this arrangement does not counsel an employer-employee relationship. The Forest Service may have provided funds for the thinning project, but it did not exercise an employer's daily control over the funds. Isleta Pueblo acted in the employer's accounting and purchasing role. See Walding v. United States, 955 F. Supp. 2d at 809 (concluding that a contractors' purchasing and supplying of equipment outweighed, for purposes of the independent contractor analysis, the United States' funding of equipment). The Forest Service did not even pay Isleta Pueblo regularly for its time, but reimbursed Isleta Pueblo quarterly. See Request for Reimbursement 97-23 at 1-7; (Request for Reimbursement 97-24 at 1-8). Cf. Restatement (Third) Of Agency § 7.07, comment f (2006)(listing as a factor in the control test "whether the agent is paid by the job or by the time worked"). Accordingly, taken together with the other Lilly factors, these facts regarding social security taxes and equipment do not show a genuine issue of material fact whether the Forest Service employed Isleta Pueblo as a federal employee.

E. THAT ISLETA PUEBLO PURCHASED LIABILITY INSURANCE, THAT FEDERAL REGULATIONS DID NOT PROHIBIT FEDERAL EMPLOYEES FROM PERFORMING THE THINNING CREW'S WORK, AND THAT ISLETA PUEBLO COULD AND DID SUBCONTRACT WORK COUNSEL AN INDEPENDENT CONTRACTOR RELATIONSHIP.

The remaining Lilly factors — "(4) who provides liability insurance; . . . (6) whether federal regulations prohibit federal employees from performing such contracts; and (7) whether the individual has authority to subcontract to others," Curry v. United States, 97 F.3d at 414 (citing Lilly, 876 F.2d at 859) — also counsel an independent contractor relationship. First, the Forest Service did not provide Isleta Pueblo liability insurance. See Independent Contractor Motion ¶¶ 20-21, at 7 (citing First Fox Decl., ¶¶ 16, at 3); Ohlsen Independent Contractor Response ¶¶ 20-21, at 16. The United States produces no admissible evidence that Isleta Pueblo purchased liability insurance, see supra note 116, but Isleta Pueblo need not have purchased liability insurance for this factor to counsel an independent contractor relationship, see Curry v. United States, 97 F.3d at 413 ("Roybal understood that he was responsible for public safety, although he did not have liability insurance."); Norton v. Murphy, 661 F.2d at 884 (describing that the contractor required Murphy to purchase liability insurance). An employer purchases liability insurance with the expectation of bearing responsibility for the employee's actions; that the Forest Service did not purchase insurance suggests that the Forest Service did not imagine it would carry the risk of liability for the thinning crew's work. Whether Isleta Pueblo waived its sovereign immunity, see Ohlsen Independent Contractor Response at 31, is either irrelevant to the inquiry whether the Forest Service and Isleta Pueblo imagined an employer-employee relationship such that the Forest Service would bear liability for the thinning crews' actions or points in the direction opposite the Ohlsen Plaintiffs' contentions. The United States' and the contractor's liabilities are separate inquiries. That Isleta Pueblo did not waive its sovereign immunity might suggest, however, that Isleta Pueblo chose to insulate itself from its potential liability. Even if the Lilly factor about liability insurance is ambiguous, the ambiguity does not outweigh the other factors' weight toward an independent contractor relationship. Second, the parties do not present evidence of any federal regulations prohibiting federal employees from performing similar contracts, see Independent Contractor Motion at 22, and the Court, in its independent research, has not found any federal regulations that prohibit federal employees from performing the work. Third, 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 (citing Participating Agreement ¶ V(U), at 9; F. Jiron Depo. 76-2 at 107:10-25); Ohlsen Independent Contractor Response ¶ 27, at 17.

Accordingly, the Court concludes that the Forest Service and Isleta Pueblo did not mutually agree to Forest Service supervision such that Isleta Pueblo was a federal employee, and not an independent contractor. The Court grants, therefore, the Independent Contractor Motion, and dismisses with prejudice those portions of the Ohlsen Complaint, the C De Baca Complaint, Cianchetti Complaint, the Sais Plaintiff Complaint, the State Farm Complaint, and the Homesite Indemnity Complaint alleging Isleta Pueblo's and the thinning crew workers' — Isleta Pueblo employees' — negligence in conducting the thinning project. The Court specifically dismisses those claims that rest solely on Isleta Pueblo's and the thinning crew's actions, including the Ohlsen Plaintiffs' allegations that Isleta Pueblo negligently conducted the thinning operations such that it: (i) "failed to create and accept a mandatory (`shall' in the PA) `safety plan'"; (ii) "did not have proper training and equipment to suppress the fire given waist deep slash (slash that exceeds the limit in the PA of 18")"; and (iii) "failed to and were not in the position to suppress the fire at the time of ignition, and the USFS is complicit in that failure because of its prior knowledge of the waist deep slash." Ohlsen Plaintiffs' Claim List at 1. The Court also specifically dismisses the State Farm Plaintiffs' claim based on the Forest Service's "[n]egligently operating mastication machinery on rocky terrain at a time of elevated fire risk" and their claim based on the Forest Service's "other negligence" to the extent the claim depends on Isleta Pueblo's and the thinning crew workers' actions. State Farm Complaint¶ 30 (e)-(f), at 8. Likewise, the Court dismisses Homesite Indemnity's claims to the extent that Homesite Indemnity alleges the Forest Service's liability based on the thinning crew's

Homesite Complaint ¶ 25(a)-(m), at 5.

IV. THE DISCRETIONARY FUNCTION EXCEPTION BARS THE OHLSEN PLAINTIFFS', C DE BACA AND CIANCHETTI'S, AND THE SAIS PLAINTIFFS' CLAIMS.

The Court concludes that the discretionary function exception bars the Ohlsen Plaintiffs', C De Baca's, Cianchetti's, and the Sais Plaintiffs' claims. The Court discusses the claims in turn below. The Court divides its discussion by Plaintiff — grouping together C De Baca and Cianchetti — and by claim. The Court undertakes a two-step analysis in considering the discretionary function exception. First, for the discretionary function exception to apply, the Forest Service's acts or omissions must be "discretionary in nature, acts that `involve an element of judgment or choice.'" United States v. Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz by Berkovitz v. United States, 486 U.S. at 536, 108 S.Ct. 1954). Second, the conduct must be "`based on considerations of public policy.'" United States v. Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting Berkovitz by Berkovitz v. United States, 486 U.S. at 537, 108 S.Ct. 1954).

A. THE DISCRETIONARY FUNCTION EXCEPTION BARS THE OHLSEN PLAINTIFFS' CLAIMS.

The Court concludes that the discretionary function exception bars all the Ohlsen Plaintiffs' claims. First, the Court concludes that the discretionary function exception protects the Forest Service's decision to masticate Unit 4. See Ohlsen Plaintiffs' Claim List at 1. The Ninth Circuit has concluded that decisions to masticate are discretionary functions. See Safeco Ins. v. United States, 1999 WL 1038272, at *1 ("All claims involving whether, how, and when to masticate slash . . . are based on discretionary functions `involving the necessary element of choice and grounded in the social, economic, [and] political goals of the [relevant] statute and regulations.'" (quoting United States v. Gaubert, 499 U.S. at 323, 111 S.Ct. 1267)). The Eighth Circuit has likewise treated silviculture decisions as within the United States' discretion. See Layton v. United States, 984 F.2d at 1502 (describing the Forest Service's forest treatment decisions as discretionary).

The Court agrees with this assessment; here, the decision to masticate was discretionary in nature. No mandatory requirement bound the Forest Service's actions. The Ohlsen Plaintiffs cite no evidence of such a requirement, and the Court, in its independent research, has not found such a requirement. The Multiple Use Sustained Yield Act of 1960 gives the Forest Service discretion in forest management and directs the Forest Service to manage 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 (quoting first 16 U.S.C. § 475; then quoting 16 U.S.C. § 528; and citing 16 U.S.C. §§ 529-31). The Strategic Plan and Landscape Plan also leave the Forest Service discretion while setting forth policy considerations for forest management. See Strategic Plan at iv-v, 1, 6-7, 15-16, 18-21; Landscape Plan at 1-4. The Ohlsen Plaintiffs' argument that the Forest Service had a mandatory duty to perform a prescribed burn in Unit 4 does not convince the Court. See Ohlsen Response ¶ 20, at 5-6; Ohlsen Reply ¶ 20, at 14-15. The Decision Notice provides that the Forest Service "will include fuels reduction and restoration treatments on approximately 5,700 acres of National Forest System lands by thinning trees, creating temporary openings for regeneration, and disposing of woody debris through mechanical methods and prescribed burning." Decision Notice at 1. It specifies:

Decision Notice at 3. Although the Decision Notice describes with the future tense a plan, it does not state an absolute or a requirement. The Decision Notice contemplates prescribed burning "as needed," and "when conditions allow for safe and effective burning." Decision Notice at 3. The Decision Notice leaves room for the Forest Service to have concluded in its discretion that it could not, on or before June 14, 2016, safely conduct a prescribed burn, or to have planned a prescribed burn after June 14, 2016. See Ohlsen Reply ¶ 20, at 14-15 (citing Deposition Martinez at 32:2-33:13 (taken November 27, 2018), filed February 28, 2019 (Doc. 127-5)("Martinez Depo. 127-5")). The Court also agrees with the United States that the Kohrman Depo. 98-9 to which the Plaintiffs cite does not show a mandatory duty that the Forest Service engage in a prescribed burn. See Ohlsen Reply ¶ 20, at 15. Kohrman states only that the Forest Service performed prescribed burns on the slash from previous projects. See Kohrman Depo. 98-9 at 27:11-17.

The Court concludes that the Forest Service decided to masticate Unit 4 because of policy considerations. "When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." United States v. Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. Moreover, both the Ohlsen Plaintiffs and the United States identify factors that the Forest Service weighed to make the decision. The Ohlsen Plaintiffs identify: (i) the risk of fire, see Ohlsen Response ¶ 32, at 7 (citing Johnson Depo. 98-3 at 45:2-46:18); (ii) the costs of a prescribed burn, see Ohlsen Response ¶ 33, at 7 (citing Johnson Depo. 98-3 at 46:15-48:18; id. at 49:10-50:18); and (iii) the timing of the Forest Service's other projects, see Ohlsen Response ¶ 33, at 7 (citing Johnson Depo. 98-3 at 49:10-50:18). The United States lists as other factors:

Ohlsen Motion ¶ 23, at 9. Cf. Safeco Ins. v. United States, 1999 WL 1038272, at *1 ("`[P]ractical considerations' are part of the discretionary-function policy mix.") (citing Gager v. United States, 149 F.3d 918, 921-22 (9th Cir. 1998); Richardson v. United States, 943 F.2d 1107, 1111 (9th Cir. 1991)). The Ohlsen Plaintiffs and the United States do not dispute that the Forest Service accounted for several policy considerations in deciding how to treat Forest Service lands.

Ohlsen Motion ¶ 17, at 7 (citing Second Fox Decl. ¶ 36, at 9); Sais Motion ¶ 19, at 7 (citing Second Fox Decl. ¶ 36, at 9). "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 (citing Second Fox Decl. ¶¶ 43-44, at 10); Sais Motion ¶ 23, at 8 (citing Second Fox Decl. ¶¶ 43-44, at 10). See Ohlsen Response ¶ 19, at 20.

Given the Court's conclusion, the Ohlsen Plaintiffs and the United States' disputes about the Forest Service's specific reasoning for and mistakes in not performing a prescribed burn are immaterial. See, e.g., Ohlsen Response ¶ 22, at 6 (citing Dixon Depo. 98-2 at 7:12-20; id. at 64:12-17; id. at 65:18-66:14); Ohlsen Reply ¶ 22, at 16 (citing Dixon Depo. 98-2 at 66:4-5); Ohlsen Response ¶ 32, at 7 (Johnson Depo. 98-3 at 45:2-46:18); Ohlsen Reply ¶ 32, at 19 (citing Johnson Depo. 98-3 at 45:2-46:18); Ohlsen Response ¶ 21, at 6 (citing Martinez Depo. 98-4 at 24:10-25:16, id. at 26:12-17; id. at 27:1-4; id. at 27:12-28:9); Ohlsen Reply ¶ 21, at 15-16 (citing Martinez Depo. 98-4 at 24:10-25:16; E. Jiron Depo. 98-14 at 30:20-31:17; Videotaped Deposition of Mark Dixon at 52:12-18 (taken November 29, 2018), filed February 28, 2019 (Doc. 127-6)("Dixon Depo. 127-6"); Videotaped Deposition of Francisco Lueras at 69:15-17 (taken December 12, 2018), filed February 28, 2019 (Doc. 127-9)("Lueras Depo. 127-9"); id. at 37:23-38:5; Martinez Depo. 98-4 at 26:18-27:21; Second Martinez Decl. ¶¶ 6-7, at 2); Ohlsen Response ¶ 33, at 7 (citing Participating Agreement ¶ IV(D), at 3; Johnson Depo. 98-3 at 46:19-48:18; id. at 49:10-59:18; Videotaped Deposition of Ian Fox at 31:13-24 (taken October 23, 2018), filed December 19, 2018 (Doc. 98-11)("Fox Depo. 98-11")); Ohlsen Reply ¶ 33, at 19 (citing Johnson Depo. 98-3 at 28:5-9; Videotaped Deposition of Aaron Johnson at 49:21-25 (taken September 11, 2018), filed February 28, 2019 (Doc. 127-8)); Ohlsen Reply ¶ 39, at 21 (citing Johnson Depo. 98-3 at 16:20-17:14; id. at 91:1-24; id. at 92:19-93:6); Ohlsen Response ¶ 39, at 8 (citing Johnson Depo. 98-3 at 33:2-23; id. at 89:10-91:6; id. at 92:19-93:6); Ohlsen Motion ¶ 23, at 9 (citing Second Martinez Decl. ¶ 48, at 11); Ohlsen Reply ¶ 23, at 20 (citing Johnson Depo. 98-3 at 45:2-48:18; Dixon Depo. at 25:17-20; id. at 64:18-65:14; id. at 94:3-7); Ohlsen Response ¶ 19, at 5 (citing Johnson Depo. 98-3 at 41:21-42:11); Ohlsen Reply ¶ 19, at 5 (citing Johnson Depo. 98-3 at 42:1-11).212 The United States acted within its discretion in deciding to masticate Unit 4, and "[w]hen the government performs a discretionary function, the exception to the FTCA applies regardless of `whether or not the discretion involved be abused.'" Redmon v. United States, 934 F.2d at 1157 (quoting 28 U.S.C. § 2680(a)). A court must decide first whether the discretionary function exception shields the "government's conduct" before the court addresses the government's duties under the common law. Domme v. United States, 61 F.3d at 789. The Ohlsen Plaintiffs' arguments about the Forest Service's "negligent disregard of the policy requiring the prescribed burn in Unit 4" and decision to masticate Unit 4 in disregard of the fire risks misses the mark for the discretionary function analysis. Ohlsen Response at 32. See Ohlsen Response at 31-33, 36; Motion to Strike Reply at 4-6 (describing the United States' duty to assess the fire risk and whether Isleta Pueblo could safely masticate Unit 4). Accordingly, the Court dismisses this claim for lack of subject-matter jurisdiction.

Second, the discretionary function exception bars the Ohlsen Plaintiffs' claim based on the Forest Service's failure "to provide two 300-gallon water trucks with knowledge of the mastication being conducted in extreme conditions." Ohlsen Plaintiffs' Claim List at 1. The Ohlsen Plaintiffs cite no evidence of a mandatory requirement directing the fire engine's location, and the Court's independent research revealed none. Moreover, the Cohesive Strategy emphasizes that fire management decisions and programs should balance multiple policy concerns:

Ohlsen Motion at 19 (emphasis omitted)(quoting Cohesive Strategy at 6). The Ohlsen Plaintiffs' citation to the Martinez Depo. 98-4 does not show a mandatory requirement that the fire engines should have accompanied the masticator. See Ohlsen Response ¶ 41, at 9 (citing Martinez Depo. 98-4 at 47:19-49:19). Martinez testifies only that the fire engines patrolled areas with potential for wildfires and with a public presence. See Martinez Depo. 98-4 at 47:19-49:19. His description of the fire engines' activities does not reflect a mandate that the fire engines patrol any particular areas. The second factor in the Berkovitz by Berkovitz v. United States test for the discretionary function exception is also satisfied. The Court presumes that the Forest Service acted on policy choices, see United States v. Gaubert, 499 U.S. at 324, 111 S.Ct. 1267, and the Ohlsen Plaintiffs and the United States agree that the Forest Service must weigh policy considerations when deciding how to manage fire equipment. See Ohlsen Motion ¶ 30, at 9 (citing Second Fox Decl. ¶¶ 63-66, at 14-15); Sais Motion ¶ 37, at 10 (citing Second Fox Decl. ¶¶ 63-66, at 14-15); Ohlsen Response ¶ 29, at 22. "Decisions regarding required tools and equipment to mitigate the risk of causing wildfire involves 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 (citing Second Fox Decl. ¶¶ 63-66, at 14-15); Sais Motion ¶ 37, at 10 (citing Second Fox Decl. ¶¶ 63-66, at 14-15). See Ohlsen Response ¶ 29, at 22.

The Court concludes, therefore, that the United States acted within its discretion in deciding where to position the fire engines, and "[w]hen the government performs a discretionary function, the exception to the FTCA applies regardless of `whether or not the discretion involved be abused.'" Redmon v. United States, 934 F.2d at 1157 (quoting 28 U.S.C. § 2680(a)). The Ohlsen Plaintiffs arguments about the Forest Service's "blatant disregard for the public's wellbeing" conflate the negligence and discretionary function analyses. Ohlsen Response at 35. Accordingly, the Ohlsen Plaintiffs' arguments fail, and the Court dismisses the Ohlsen Plaintiffs' claim regarding the fire engines for lack of subject-matter jurisdiction.

Third, the discretionary function exception bars the Ohlsen Plaintiffs' claim based on the Forest Service's failure "to implement site specific fire restrictions given the extreme fire danger and fuel load conditions." Ohlsen Plaintiffs' Claim List at 1. The decision to proceed with treating Unit 4 involved judgment or choice. The Ohlsen Plaintiffs identify no specific or mandatory requirement that the Forest Service violated in not prescribing site specific fire restrictions, and the Court, with its independent research, has not discovered any such requirement. That the Forest Service in Statement of Work Modification 4 adopted site-specific fire risk assessments does not support that any mandatory duty existed to implement site-specific fire restrictions. See Ohlsen Response ¶ 74, at 15 (citing Lueras Depo. 98-6 at 28:17-30:9); Ohlsen Response ¶ 5, at 8 (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. Risk assessments differ from restrictions, and, moreover, the Ohlsen Plaintiffs have produced no evidence that the Forest Service had any policy about site-specific assessments before the Dog Head Fire, and the Court has not located such information. Further, contrary to the Ohlsen Plaintiffs' suggestion, 16 U.S.C. § 551 is not a mandatory requirement establishing the Forest Service's "duty to `protect against destruction by fire.'" March Notice of Supp. Authority at 1. The statutes states: "The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests." 16 U.S.C. § 551. The statute does not direct what provisions the Agriculture Department should enact or how the Agriculture Department should determine which provisions to enact, but leaves these matters to the Agriculture Department's discretion.

The second Berkovitz by Berkovitz v. United States factor is also satisfied here. The Cohesive Strategy reflects the Agriculture Department's understanding that fire prevention and management decisions rest in policy concerns. See Cohesive Strategy at 6. Moreover, the Ohlsen Plaintiffs and the United States agree that decisions about forest treatment and fire restrictions involve balancing several considerations:

Ohlsen Motion ¶ 17, at 7 (citing Second Fox Decl. ¶ 36, at 9); Sais Motion ¶ 19, at 7 (citing Second Fox Decl. ¶ 36, at 9). Regarding balancing forest treatment and fire restrictions,

Ohlsen Motion ¶ 29, at 10 (citing Second Fox Decl. at 53-58, at 12-13); Sais Motion ¶ 33, at 9-10 (citing Second Fox Decl. ¶¶ 53-58, at 12-13). The Ohlsen Plaintiffs focus on the Forest Service's failure to fulfill its duty to react to and warn of fire risks. See Ohlsen Response at 36; Motion to Strike Reply at 4 ("It was the USFS' duty to determine when the workers could safely burn or masticate in dangerous conditions."); id. at 5-6 (describing that the Forest Service failed to identify the extreme fire risk in Unit 4 and therefore did not enact the appropriate fire restrictions). "The exception to the FTCA applies[, however,] regardless of `whether or not the discretion involved be abused,'" Redmon v. United States, 934 F.2d at 1157 (quoting 28 U.S.C. § 2680(a)), so the Ohlsen Plaintiffs' arguments do not persuade the Court.

The United States avers that the lack of a site-specific analysis of Unit 4's fire risk did not cause the Plaintiffs' injuries, because the Forest Service would still not have imposed fire restrictions had it performed a site-specific analysis. See Ohlsen Reply at 46 (citing Second Fox Decl. ¶¶ 59-61, at 13-14). Although, because the Court determines that the decision to enter site-specific fire restrictions was discretionary, disputes about causation are irrelevant, the Court notes that no genuine dispute of fact as to causation exists. "To circumvent the discretionary function exception, the mandatory duty alleged must be one whose breach bears a causal relationship to the Plaintiffs' injuries, thereby giving rise to their cause of action against the government." Clark v. United States, 695 F. App'x 378, 387-88 (10th Cir. 2017)(unpublished)(citing Franklin Savings Corp. v. United States, 180 F.3d 1124, 1132-33 (10th Cir. 1999)). According to the United States, the Forest Service enacted no fire restrictions on June 14, 2016, and "there was some urgency to addressing the slash" in Unit 4. Second Fox Decl. ¶ 61, at 13. As the risk of the masticator sparking a fire was small, the Forest Service would have, therefore, continued the mastication even had it performed a site-specific analysis. See Second Fox Decl. ¶ 62, at 14. The Ohlsen Plaintiffs have produced no evidence contradicting the United States' assertions. The Court deems, therefore, that no genuine issue of fact exists that the lack of a site-specific analysis did not cause the Plaintiffs' injuries. The Ohlsen Plaintiffs' allegation focuses, however, on the Forest Service's failure to impose site-specific fire restrictions rather than a site-specific analysis. See Ohlsen Plaintiffs' Claim List at 1. Neither party has produced evidence regarding what restrictions the Forest Service would have imposed and those hypothetical restrictions' relation to the Plaintiffs' injuries. The Court cannot, therefore, determine whether the lack of site-specific restrictions caused the Plaintiffs' injury, but, as neither party argues or produces evidence on this question, neither party has shown that a genuine issue of fact whether the lack of site-specific fire restrictions caused the Plaintiffs' injuries. Accordingly, the Court dismisses this claim about site-specific fire restrictions for lack of subject-matter jurisdiction.

Fourth, the Court concludes that the discretionary function exception likewise bars the Ohlsen Plaintiffs' allegation that the Forest Service "[violated the] mandatory provision in the PA (standard USFS form) that provided that slash shall not exceed 18" in depth." Ohlsen Plaintiffs' Claim List at 1. The Statements of Work's prescriptions about slash depth did not apply to the Forest Service, but applied to Isleta Pueblo; the Participating Agreement provides that Isleta Pueblo will "manage the employees so that work is completed as mutually agreed upon to the specifications stated in the Statement of Work Supplement." Participating Agreement ¶¶ III(B), at 2. The Forest Service's decisions to contract with Isleta Pueblo, and to delegate responsibility to thin the project site and to adhere to the maximum slash depth are within the Forest Service's discretion. The Court has recognized that the decision to hire an independent contractor is a discretionary function. See Coffey v. United States, 906 F. Supp. 2d at 1158 (deciding that the BIA decision to enter a contract for detention beds is a discretionary decision). See also Carroll v. United States, 661 F.3d at 103-04 (describing the judgment to hire independent contractors as a discretionary function). Likewise, decisions to delegate duties and how to oversee the performance of those duties are often discretionary. See, e.g., Carroll v. United States, 661 F.3d at 100-05 (describing the decision to delegate responsibilities as permissible); Garcia v. U.S. Air Force, 533 F.3d at 1178 (deeming that no mandatory requirement existed that the Air Force monitor a contractor's work when the Air Force inspectors' guidelines did not specify any specific standards for or times for inspection); Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1167-67 (10th Cir. 2004)(concluding that the Forest Service could decide in its discretion the extent to monitor a ski resort contractor's daily operations); Andrews v. United States, 121 F.3d 1430, 1440 (11th Cir. 1997)("The discretionary function exception encompasses government decisions about how and how much to supervise the safety procedures of independent contractors."); Domme v. United States, 61 F.3d at 791 (concluding that the United States Department of Energy had discretion to decide when and how it exercised appraisals of a contractor's work); Layton v. United States, 984 F.2d at 1502-03 (describing decisions to delegate safety responsibility to contractors and to oversee the contractors' compliance with contract requirements as discretionary); Fritz v. United States, 42 F.3d 1406, 1994 WL 678495, at *1 ("We agree with the district court that the failure of the United States to monitor adequately. . . compliance with its insurance certifications falls directly within the discretionary function exception to the Federal Tort Claims Act."); Tilga v. United States, No. CIV 14-0256 JAP/SMV, 2015 WL 12661930, at *9-10 (D.N.M. June 12, 2015)(Parker, J.)("[T]he United States acted within its discretion in delegating responsibility for contract compliance and for the day-to-day supervision and management of the Albuquerque halfway house to Dismas.").

Here, the Court and the Ohlsen Plaintiffs have identified no mandatory requirements governing the Forest Service's actions. Regarding the Forest Service's role in overseeing Isleta Pueblo, the Participating Agreement states that "The U.S. Forest Service Shall . . . Designate work areas and provide[s] cutting guidelines for achieving desired condition. . . . Inspect the work and provide feedback on how goals are being accomplished." Participating Agreement ¶¶ IV(B)-(C), at 3. The Participating Agreement does not further specify the Forest Service's responsibilities in overseeing Isleta Pueblo, although it grants the Forest Service the option to suspend the Participating Agreement or otherwise sanction Isleta Pueblo for its non-compliance. See Participating Agreement ¶ V(Y), at 10-11. In Estate of Harshman v. Jackson Hole Mountain Resort Corp., the Tenth Circuit upheld a district court's decision that similar provisions did not impose a mandatory requirement on the Forest Service. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1166; Estate of Harshman v. Jackson Hole Mountain Resort Corp., 200 F.Supp.2d 1329, 1336 (D. Wyo. 2002)(Brimmer, J.)(concluding that an agreement reserving to the Forest Service the ability to inspect a contractor's operations, to oversee compliance of the contract, and to temporarily suspend the contractor's operations did not create a mandatory requirement governing the Forest Service's supervision).213

Where agency policy allows an employee to exercise discretion, there is a "strong presumption" that the acts authorized by the policy are grounded in public policy. United States v. Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. The Court presumes that the Forest Service exercised its discretion in deciding to hire and how to supervise Isleta Pueblo. Additionally, the Ohlsen Plaintiffs and the United States agree that the Forest Service exercised its judgment in weighing "multiple public policy considerations" when the Forest Service entered the Participating Agreement delegating responsibilities to Isleta Pueblo. Ohlsen Motion ¶ 6, at 4 (citing Second Fox Decl. ¶¶ 15-26, at 3-7); Sais Motion ¶ 8, at 4 (citing Second Fox Decl. ¶¶ 15-26, at 3-7). When the Forest Service decided to accept Isleta Pueblo's proposal, for instance, the Forest Service considered

Ohlsen Motion ¶ 7, at 5 (citing Second Fox Decl. ¶ 15, at 3-4); Sais Motion ¶ 9, at 4-5 (citing Second Fox Decl. ¶ 15, at 3-4). In assessing Isleta Pueblo's proposal, the Forest Service considered

Ohlsen Motion ¶ 8, at 6 (citing Second Fox Decl. ¶¶ 18-25, at 4-6); Sais Motion ¶ 10, at 5 (citing Second Fox Decl. ¶¶ 18-25, at 4-6).

The Ohlsen Plaintiffs argue that the Forest Service acted negligently in allowing the slash to accumulate. See Ohlsen Response at 30-31; Motion to Strike Reply at 6 ("Allowing the slash to accumulate to over twice the depth specified as the maximum in the Participating Agreement constituted an extreme fire danger and meant the forest should have been closed to all masticating operations."). As the Court discusses supra, the discretionary function analysis does not involve questions of the United States' negligence. Accordingly, the Ohlsen Plaintiffs' argument fails.

Disputes about the maximum slash depth applicable to Unit 4's thinning, the slash depth in Unit 4 on June 14, 2016, and the relation of slash depth to fire risk are irrelevant to the Court's discretionary function analysis, as the Court concludes that allowing the slash to accumulate was within the Forest Service's discretion. The Court addresses, nevertheless, the United States' argument that the Court should dismiss this claim, because the Ohlsen Plaintiffs cannot show that excess slash caused the Dog Head Fire damages. See Clark v. United States, 695 F. App'x at 387-88 (citing Franklin Savings Corp. v. United States, 180 F.3d at 1132-33). The Court concludes that a genuine dispute of fact exists as to this issue, although this dispute is irrelevant to the Court's conclusion. The Court cannot determine with certainty which Statement of Work modification applied to Unit 4's thinning. Statement of Work Modification 3 provides no maximum slash depth for Unit 4, as it discusses masticating Unit 4. See Statement of Work Modification 3 § 5(C), at 419. The Court cannot verify when the thinning crew began work on Unit 4, although the thinning crew finished thinning Unit 4 on August 12, 2015. See Contract Daily Diary 98-13 at 1. Statement of Work Modification 2 took effect in early June 2015, before the thinning crew finished thinning Unit 4. See Statement of Work Modification 2 at 1. If the thinning crew began work on Unit 4 before Statement of Work Modification 2 took effect, Modification 1 governs that work, and Modification 1 left in place the Statement of Work Original's eighteen-inch maximum slash depth. See Modification 1 at 1-6; Statement of Work Original § 5, at 356, filed February 28, 2019 (Doc. 125-1)("Statement of Work Original 125-1"). Otherwise, Statement of Work Modification 2 governs. Statement of Work Modification 2 is ambiguous as to the slash depth applicable to Unit 4, because it specifies a maximum slash depth of 18 inches for ninety-four acres of Treatment Type 1 units — which the Court assumes are the 94 acres of Treatment Type 1 units in goshawk dispersal post fledgling lands mentioned on page 378 — on page 378 and on page 387, see Statement of Work Modification 2 § 1(A), 5(A), at 378, 387, but also states, on page 387, under the quality standards for "Treatment Type 1 Units, Selection of Cut Trees," that "[s]lash disposal will consist of scatter and lop all slash (3" and smaller) to 24" height or less," Statement of Work Modification 2 § 5(A), at 387.214 The Court requires extrinsic evidence to determine whether the twenty-four-inch requirement represents a maximum slash depth requirement, and, if it does, which maximum slash depth the Forest Service and Isleta Pueblo intended in Statement of Work Modification 2. The Court also needs additional evidence to determine whether Statement of Work Modification 2 applies to Unit 4, because the Court cannot verify whether Unit 4 is excluded from the goshawk dispersal post fledgling lands, as the Ohlsen Plaintiffs alleged at the hearing. See March 8 P.M. Tr. at 70:7-17 (Tosdal). Regardless the provided-for maximum slash depth, the Ohlsen Plaintiffs and the United States also dispute whether the slash in Unit 4 exceeded any maximum slash depth. See Ohlsen Response ¶ 30, at 7 (describing the slash as over 36 inches deep (citing E. Jiron Depo. 98-14 at 30:20-31:17215); Ohlsen Reply ¶ 30, at 18 (describing that E. Jiron did not clarify what percentage of the slash exceeded the maximum slash depth, and that other witnesses stated the slash was not as deep as E. Jiron testified and that the slash depth complied with the Statements of Work requirements (citing E. Jiron Depo. 98-14 at 30:20-31:17; Dixon Depo. 127-6 at 52:12-18; Lueras Depo. 127-9 at 69:15-17; id. at 37:23-38:5; Third Fox Decl. ¶¶ 18-21, at 4-5216); Motion to Strike ¶ 12, at 3 (citing Videotaped Deposition of Ian Fox at 144:24-145:23 (taken October 23, 2018), filed March 5, 2019 (Doc. 135-1)("Fox Depo. 135-1")).

A dispute also exists whether the slash depth caused the Ohlsen Plaintiffs' harms, although the Court deems the dispute irrelevant to its conclusion. The Ohlsen Plaintiffs argue that the maximum slash depth provides for safer prescribed burns. See Ohlsen Response ¶ 19, at 5 (citing Johnson Depo. at 41:21-42:11). The Ohlsen Plaintiffs submit evidence from Michael Wetzel, a Certified Forester, of the scientific model for calculating ERC and of the connections between fuel load and slash depth. See Motion to Strike ¶¶ 16-17, at 4 (citing Exhibit 2A at 1, filed March 5, 2019 (Doc. 135-3)); Declaration of Michael Wetzel ¶¶ 1-5, at 1-2 (dated March 5, 2019), filed March 5, 2019 (Doc. 135-2)("Wetzel Decl."); Motion to Strike Reply at 3 (citing Forester's Report of the Dog Head Fire at 5 (dated April 12, 2019), filed April 23, 2019 (Doc. 171-3)("Wetzel Report")).217 The United States avers that slash depth does not relate to fire intensity and that the slash depth did not prevent the thinning crew from suppressing the fire. See Ohlsen Reply at 40. In its argument section, the United States relies on Martinez' testimony that the amount of fuel on the ground — measured by the fuel load and not the slash depth — feeds a fire's intensity. See Ohlsen Reply at 40 (citing Martinez Depo. 98-4 at 26:18-27:21; Second Martinez Decl. ¶¶ 6-7, at 2). In its reply to the Ohlsen Plaintiffs' proposed undisputed facts, the United States also cites Fox' testimony in the Third Fox Decl. ¶ 25, at 5, that the Statements of Work impose a maximum slash depth that aims to balance aesthetics and the cost for reducing the slash depth, and that the Forest Service pulled the number from timber contracts. See Ohlsen Reply ¶ 19, at 14 (citing Third Fox Decl. ¶ 25, at 5). The United States also references Fox' assertion that he has never heard that slash depth affects the risk of fire. See Ohlsen Reply ¶ 19, at 14 (citing Third Fox Decl. ¶ 26, at 5). The Court declines the Ohlsen Plaintiffs' invitation to strike these portions of the Third Fox Decl. ¶¶ 25-26, at 5. See Motion to Strike at 1-6. The United States argues regarding the Third Fox Decl. ¶ 25, at 5, that Fox has personal knowledge about the Statements of Work from his seventeen years as the Forest Service Natural Resource Officer, and, regarding the Third Fox Decl. ¶ 26, at 5, that Fox makes the statement based on that same experience and does not opine on the risks of fire. See Motion to Strike Response at 5-6. The Court agrees with the United States and concludes that the Ohlsen Plaintiffs attack Fox' credibility rather than the statements' admissibility, see Motion to Strike at 2-3; Motion to Strike Reply at 6, and aver, for instance, that Fox admits that he is not a "`fire guy,'" Motion to Strike ¶ 4, at 3 (quoting Fox Depo. 135-1 at 31:5), and lacks the expertise to engage in fire risk operations, see Motion to Strike ¶ 5, at 3 (citing Fox Depo. 135-1 at 146:2-11). The Ohlsen Plaintiffs add that Fox does not have personal knowledge about the Participating Agreement and Statements of Work, see Motion to Strike ¶¶ 8-9, at 2-3, and that other evidence contradicts Fox' statements, see Motion to Strike Reply at 6. The arguments about Fox' accuracy are arguments about credibility rather than admissibility, and, as Fox is the Natural Resources Staff Officer who administered those documents, the Court concludes that he has personal knowledge to explain his understanding why the Statements of Work contain the specified maximum slash depth, see Third Fox Decl. ¶ 1, at 1. The Court does not consider Fox' statements on these matters expert opinions as the Court does not read the Third Fox Decl. ¶¶ 25-26, at 5, to try to offer expert opinions; Fox describes what the maximum slash depth's inclusion in the Statements of Work means to him and that he has no information about slash depth increasing the risk of fire. See Third Fox Decl. ¶¶ 25-26, at 5. The Ohlsen Plaintiffs' arguments about Fox' credibility create, however, a question of fact regarding the slash depth's relation to the fire risk. Moreover, the Third Fox Decl. ¶¶ 25-26, at 6, does not preclude a reasonable factfinder from concluding that the slash depth is related to fire risk. As both the concepts of fuel load and slash depth relate to the amount of material on the ground and the concepts correlate to each other, as Exhibit 2A reflects, see Exhibit 2A at 1, the Court concludes that an issue of fact exists whether the slash depth is related to the risk of wildfire. As the choice to delegate the responsibility of complying with the maximum slash depth was within the Forest Service's discretion, however, and the independent contractor exception protects the United States from liability for Isleta Pueblo's actions, this issue is irrelevant, and the Court dismisses for lack of subject-matter jurisdiction the claim about the Forest Service violating the maximum slash depth.

Fifth, the Court concludes that the discretionary function exception bars the Ohlsen Plaintiffs' claim based on the Forest Service's failure to impose fire restrictions that "are automatically implemented when the ERC reaches 90." Ohlsen Plaintiffs' Claim List at 1. The Court concludes that the Plaintiffs have not shown a genuine dispute of material fact whether the Forest Service has a mandatory obligation to impose fire restrictions when the ERC reaches 90.218 The Ohlsen Plaintiffs argue that Martinez, when pressed, "admitted restrictions are not discretionary." Ohlsen Response ¶ 53, at 11-12 (citing Martinez Depo. 98-4 at 64:6-65:13). The United States argues that Kohrman decides when to enter fire restrictions and that the Forest Service considers several public policy factors in reaching the decision. See Ohlsen Reply ¶ 44, at 23 (citing Martinez Depo. 98-4 at 61:25-62:1; id. at 58:2-25; Videotaped Deposition of Elaine Kohrman at 62:15-23 (dated September 10, 2018), filed February 28, 2019 (Doc. 127-10)("Kohrman Depo. 127-10"); id. at 63:2-22; id. at 200:5-20; id. at 201:11-16; Second Martinez Decl. ¶¶ 16-19, at 4-5; Martinez Depo. 127-5 at 151:4-16; id. at 153:6-19). The Martinez Depo. 98-4 excerpt on which the Ohlsen Plaintiffs rely reflects Martinez stating, in response to the question, "what should you do . . . when [the ERC] hits 90 percent?," Martinez Depo. 98-4 at 65:6-7, "I don't like the word `should.' What I do . . . is definitely go into restrictions," Martinez Depo. 98-4 at 65:11-13. The Martinez Depo. 98-4 continues: "Q: You ... definitely go into restrictions? A: Yeah," Martinez Depo. 98-4 at 65:11-13. Martinez makes no comment about laws, regulations, or Forest Service policies mandating fire restrictions. On the other hand, Martinez, Kohrman, and Forest Service guidelines treat entering fire restrictions as a matter of judgment. See Martinez Depo. 98-4 at 61:25-62:1; id. at 58:2-25; Kohrman Depo. 127-10 at 62:15-23; id. at 63:2-22; id. at 200:5-20; id. at 201:11-16; Second Martinez Decl. ¶¶ 16-19, at 4-5; Martinez Depo. 127-5 at 151:4-16; id. at 153:6-19; Forest Service Fire Management Guidelines at 1-3, filed February 28, 2019 (Doc. 172-2)("Fire Management Guidelines"); Southwest Coordinating Group Interagency Fire Restriction and Closure Procedures at 1-2, filed February 28, 2019 (Doc. 127-3)("Fire Restriction and Closure Procedures"); Cibola National Forest and Grasslands Fire Danger Operating Plan at 1-3, filed February 28, 2019 (Doc. 127-4)("Fire Danger Operating Plan"). The Fire Management Guidelines give no mandatory requirements on fire management; they instead direct the Forest Service to consider several principles to consider in developing fire management. See Fire Management Guidelines at 3. The Fire Restriction and Closure Procedures, filed February 28, 2019 (Doc. 127-3), likewise provide no mandatory requirement, but rather state:

Fire Restriction and Closure Procedures at 2. The Fire Danger Operating Plan similarly directs the Forest Service to use its discretion when determining fire restrictions: "Fire danger will be determined by district, and forest level fire personnel. These fire program personnel will use the National Fire Danger Rating System[219] to make informed decisions about fire danger." Fire Danger Operating Plan at 2. In light of this evidence, Martinez' single Martinez Depo. 98-4 comment does not show a genuine dispute of material fact whether the Forest Service lacked the ability to make a judgment or choice in entering fire restrictions. See Ohlsen Reply ¶ 44, at 23 (citing Martinez Depo. 98-4 at 61:25-62:1; id. at 58:2-25; Kohrman Depo. 127-10 at 62:15-23; id. at 63:2-22; id. at 200:5-20; id. at 201:11-16; Second Martinez Decl. ¶¶ 16-19, at 4-5; Martinez Depo. 127-5 at 151:4-16; id. at 153:6-19).

The Ohlsen Plaintiffs and the United States agree that the Forest Service's decisions about fire restrictions weigh policy considerations:

Ohlsen Motion ¶ 29, at 10 (citing Second Fox Decl. at 53-58, at 12-13); Sais Motion ¶ 33, at 9-10 (citing Second Fox Decl. at 53-58, at 12-13). Practical considerations also amount to policy choices. See Safeco Ins. v. United States, 1999 WL 1038272, at *1 ("`[P]ractical considerations' are part of the discretionary-function policy mix.") (citing Gager v. United States, 149 F.3d at 921-22; Richardson v. United States, 943 F.2d at 1111). The Forest Service considers temperature, wind speed, relative humidity, ERC, see Martinez Depo. 127-5 at 151:4-16, the effects of closing the forest on the public, staffing descriptions, relationships with adjacent landowners, see Second Martinez Decl. ¶¶ 16-19, at 4-5, available resources, and events, such as the Fourth of July, that affect the fire risk, see Fire Restriction and Closure Procedures at 1. The Ohlsen Plaintiffs emphasize the Forest Service's negligence in failing to enter fire restrictions, see Ohlsen Response at 35-36; Independent Contractor Motion and Ohlsen Motion at 4-6, but this contention improperly conflates the discretionary function analysis and the negligence analysis, see Redmon v. United States, 934 F.2d at 1157 (citing 28 U.S.C. § 2680(a)). The Ohlsen Plaintiffs' arguments do not persuade, therefore, the Court. Accordingly, the Court concludes that the discretionary function exception bars the Ohlsen Plaintiffs' claim based on the Forest Service not enacting fire restrictions.

Sixth, the discretionary function exception bars the Ohlsen Plaintiffs' claim based on the allegation that "USFS and POI [(Isleta Pueblo)] failed to create and accept a mandatory (`shall' in the PA) `safety plan.'" Ohlsen Plaintiffs' Claim List at 1. The Ohlsen Plaintiffs have identified no mandatory requirements that apply to the Forest Service's role in Isleta Pueblo developing a safety plan, and the Court has identified none. The Statements of Work specify that the requirement to develop a safety plan applies to Isleta Pueblo. See Statement of Work Modification 3 ¶ 2, at 11 ("The Partner shall prepare and submit a safety plan to provide for worker and public safety."). As discussed supra in relation to the claim based on the maximum slash depth, the Forest Service's decisions to contract with Isleta Pueblo and to delegate it responsibilities are discretionary functions. The Ohlsen Plaintiffs' statements that "the USFS violated the Participating Agreement by negligently allowing the Pueblo to disregard safety requirements" and that, "[n]othwithstanding the independent contractor issue and the duties of the POI, the USFS is responsible for its negligent acts and omissions" ignore that the Court must not consider the Forest Service's negligence in analyzing the discretionary function exception. Ohlsen Response at 33-34. Accordingly, as the United States acted in its discretion and the independent contractor function bars the United States' liability for Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.220

Seventh, the discretionary function exception bars the Ohlsen Plaintiffs' claim based on the allegation that "USFS and POI members did not have proper training and equipment to suppress the fire given waist deep slash (slash that exceeds the limit in the PA of 18")." Ohlsen Plaintiffs' Claim List at 1. The Participating Agreement delegates to Isleta Pueblo the responsibilities of training the thinning crew and ensuring safety while working on the thinning project. See Participating Agreement ¶ III(D), V(F), at 3, 5. The Statements of Work, as discussed supra, govern Isleta Pueblo, and delegate to Isleta Pueblo the responsibility of ensuring fire safety and providing adequate equipment for fire prevention. See Statement of Work Modification 3 §§ 3-4, 11 at 416, 427-30. The Ohlsen Plaintiffs have identified no mandatory requirements for the Forest Service's decisions about training and equipment, or for the Forest Service's supervision over Isleta Pueblo's choices about training and equipment. As discussed supra in the discussion of the maximum slash depth, the United States' decisions to contract with Isleta Pueblo and to delegate it responsibilities, including safety responsibilities, are discretionary functions. See, e.g., Carroll v. United States, 661 F.3d at 103-04; Coffey v. United States, 906 F. Supp. 2d at 1158; Andrews v. United States, 121 F.3d at 1440; Andrews v. United States, 121 F.3d at 1440; Layton v. United States, 984 F.2d at 1502-03. Neither the Ohlsen Plaintiffs nor the United States produce evidence about the considerations governing the Forest Service's training decisions for its employees, and the Court has located none. The Court presumes that the Forest Service grounded its decision on policy. See Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d at 1222 ("Though not all discretionary acts fit this criteria, we presume that a government agent's discretionary actions are grounded in policy, and it is up to the challenger to allege facts showing that the actions were actually not policy-oriented." (citing United States v. Gaubert, 499 U.S. at 324-25, 111 S.Ct. 1267)). The Court and Courts of Appeals have previously concluded that decisions about training are discretionary functions, as the Forest Service must weigh the costs, time, and benefits of training. See Kelly v. United States, 241 F.3d 755, 763 (9th Cir. 2001)(describing that training decisions are generally discretionary and collecting cases); Redmon By & Through Redmon v. United States, 934 F.2d at 1156 (determining that the Federal Aviation Administration's decision not to require a practical flight test for pilots was a discretionary decision); Garcia v. United States, 709 F. Supp. 2d at 1151-52 (describing a police department's choices about training police officers as discretionary, because the department had to weigh, for instance, training's costs and the likelihood that training would produce benefits). The Ohlsen Plaintiffs and the United States agree that "[d]ecisions regarding required tools and equipment to mitigate the risk of causing wildfire involves 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 (citing Second Fox Decl. ¶¶ 63-66, at 14-15); Sais Motion ¶ 37, at 10 (citing Second Fox Decl. ¶¶ 63-66, at 14-15). As with the Ohlsen Plaintiffs' claim about Isleta Pueblo's safety plan, the Ohlsen Plaintiffs' statements that "the USFS violated the Participating Agreement by negligently allowing the Pueblo to disregard safety requirements," and that, "[n]othwithstanding the independent contractor issue and the duties of the POI, the USFS is responsible for its negligent acts and omissions," miss the discretionary function analysis' mark. Ohlsen Response at 33-34. Accordingly, as the United States acted in its discretion and the independent contractor function bars the United States' liability for Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.

Eighth and last, the discretionary function exception bars the Ohlsen Plaintiffs' claim that "USFS and POI members failed to and were not in the position to suppress the fire at the time of ignition, and the USFS is complicit in that failure because of its prior knowledge of the waist deep slash." Plaintiff's Claims at 1. The Participating Agreement delegates to Isleta Pueblo the responsibility for taking safety precautions, and the Statements of Work delegate to Isleta Pueblo the responsibility for responding to and containing fires in the area on which the thinning crew worked. See Participating Agreement ¶ V(F), at 3, 5; Statement of Work Modification 3 § 11(A), at 427. As discussed supra in the discussion of the maximum slash depth, the United States' decisions to contract with Isleta Pueblo and to delegate to Isleta Pueblo duties including safety responsibilities, such as fire suppression, are discretionary functions. See, e.g., Autery v. United States, 424 F.3d at 958-59 (concluding that the independent contractor exception bars claims against the United States when a contract delegates fire prevention to a contractor). The Ohlsen Plaintiffs cite no evidence of a mandatory requirement governing the Forest Service's fire suppression decisions, and the Court could locate none. The Tenth Circuit has concluded that decisions about fire suppression "are susceptible to a policy analysis grounded in social, economic, or political concerns." Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d at 1222. See id. at 1222-23 ("[T]he balancing of the needs to protect private property, ensure firefighter safety, reduce fuel levels, and encourage natural ecological development ... are precisely the kind of social, economic, and political concerns the discretionary function exception was designed to shield."). Moreover, the Court presumes that the Forest Service grounded its decision on policy, see Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d at 1222 ("Though not all discretionary acts fit this criteria, we presume that a government agent's discretionary actions are grounded in policy, and it is up to the challenger to allege facts showing that the actions were actually not policy-oriented." (citing United States v. Gaubert, 499 U.S. at 324-25, 111 S.Ct. 1267)), and the Ohlsen Plaintiffs have offered no specific arguments here that the Forest Service's decision did not rest on policy considerations. The Ohlsen Plaintiffs appear to rest their contentions on the arguments that "the USFS violated the Participating Agreement by negligently allowing the Pueblo to disregard safety requirements" and that, "[n]othwithstanding the independent contractor issue and the duties of the POI, the USFS is responsible for its negligent acts and omissions." Ohlsen Response at 33-34. As discussed supra, these arguments improperly conflate, however, the discretionary function exception analysis and the negligence analysis. Accordingly, as the discretionary function exception bars claims against the Forest Service based on its fire suppression choices and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.221

B. THE DISCRETIONARY FUNCTION EXCEPTION BARS C DE BACA'S AND CIANCHETTI'S CLAIMS.

The Court concludes that the discretionary function exception bars C De Baca's and Cianchetti's 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. C De Baca, Cianchetti, and the United States do not specifically argue whether the discretionary function exception bars C De Baca's and Cianchetti's 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. C De Baca and Cianchetti incorporate all other Plaintiffs' responses to the United States' motions to dismiss, and, specifically incorporate the Ohlsen Independent Contractor Response, Ohlsen Response, and Sais Response, into their C De Baca Response. See C De Baca Response at 4. See also Ohlsen Response at 1 n.1 (stating that the Ohlsen response speaks for all Plaintiffs). To the extent the contents of the Ohlsen Plaintiffs' discretionary function exception arguments are relevant to C De Baca and Cianchetti's claims, the Court considers, accordingly, those arguments in response to the C De Baca Motion.

First, the discretionary function exception bars C De Baca's and Cianchetti's 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." C De Baca Motion at 1. The Participating Agreement delegates to Isleta Pueblo the responsibility of providing equipment for the thinning crew's work and of maintaining a work environment that safeguards the thinning crew's, the public's, and the Forest Service's interests. See Participating Agreement ¶ III(B)-(D), at 3. Such provisions encompass the responsibility for ensuring that the thinning crew had proper equipment for its work in Unit 4. C De Baca and Cianchetti have identified no mandatory requirements requiring the Forest Service to oversee Isleta Pueblo's equipment choices, and the Court has identified none. As discussed supra, the Forest Service acted within its discretion in contracting with Isleta Pueblo and delegating responsibilities. As the discretionary function exception bars claims against the Forest Service based on the thinning crew's equipment, and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.

Second, the discretionary function exception applies to C De Baca's and Cianchetti's claim for the Forest Service's "failure to provide proper fire extinguishment tools." C De Baca Motion at 9. As discussed supra in relation to the Ohlsen Plaintiffs' claim that "USFS and POI members did not have proper training and equipment to suppress the fire given waist deep slash (slash that exceeds the limit in the PA of 18")," Ohlsen Plaintiffs' Claim List at 1, the Forest Service delegated responsibility for providing fire extinguishment tools to Isleta Pueblo, and had no mandatory requirement binding its decisions about overseeing Isleta Pueblo's tools or about its fire extinguishment tools. As discussed supra, the Forest Service acted within its discretion in making decisions regarding the fire extinguishment tools. As the discretionary function exception bars claims against the Forest Service based on the thinning crew's fire extinguishment tools, and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.

Third, the discretionary function exception applies to C De Baca's and Cianchetti's claim for the Forest Service's "failure to manage the undergrowth of the forest area where the fire occurred." C De Baca Motion at 1. As C De Baca, Cianchetti and the United States do not discuss this claim, the Court cannot ascertain exactly what C De Baca and Cianchetti believe the Forest Service failed to manage. As discussed supra, however, the Forest Service's silviculture decisions and decisions about the slash lay within the Forest Service's discretion. Accordingly, as the discretionary function exception bars claims against the Forest Service, and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions in managing the forest, the Court dismisses this claim for lack of subject-matter jurisdiction.

C. THE DISCRETIONARY FUNCTION EXCEPTION BARS THE SAIS PLAINTIFFS' CLAIMS.

The Court will also dismiss the Sais Plaintiffs' claims for lack of subject-matter jurisdiction. These claims include all the same claims as C De Baca and Cianchetti bring, and also 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. The United States incorporates its discretionary function arguments from the Ohlsen Motion and does not otherwise argue in the Sais Motion that the discretionary function exception bars these claims, see Sais Motion at 15, and the Sais Plaintiffs likewise incorporate the Ohlsen Response without making their own arguments, see Sais Response at 1-2. See also Ohlsen Response at 1 n.1 (stating that the Ohlsen response speaks for all Plaintiffs). As the Sais Plaintiffs' claims do not align exactly with the Ohlsen Plaintiffs' claims, the Court discusses each Sais Plaintiff claim in turn. First, for the reasons discussed supra in the Analysis' Section II(B), the Court dismisses all the claims that overlap with C De Baca's and Cianchetti's claims.

Second, the Court concludes that the discretionary function exception bars the Sais Plaintiffs' claims against the Forest Service for "leaving slash and boles produced by forest thinning operations on the ground where the fire started." Sais Motion at 11. As discussed supra in the Analysis' Section II(A), the Forest Service's decisions about the slash lay within the Forest Service's discretion. Accordingly, as the discretionary function exception bars claims against the Forest Service, and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions in, the Court dismiss this claim for lack of subject-matter jurisdiction.

Third, the Court concludes that the discretionary function exception bars the Sais Plaintiffs' claims against the Forest Service for "conducting forest thinning operations under unreasonable conditions." Sais Motion at 11. As discussed supra, the Forest Service's decisions to masticate and not to enter fire restrictions are within the Forest Service's discretion. Accordingly, as the discretionary function exception bars claims against the Forest Service and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.

Fourth, the Court concludes that the discretionary function exception bars the Sais Plaintiffs' claims against the Forest Service for "failing to employ competent individuals to perform the work." Sais Motion at 11. The Participating Agreement delegates to Isleta Pueblo the responsibility for obtaining personnel to perform the thinning work, see Participating Agreement ¶ III(B), at 2, and, as discussed supra, the Forest Service's decisions to hire an independent contractor and which contractor to hire were within its discretion. Accordingly, as the discretionary function exception bars claims against the Forest Service, and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.

Fifth, the Court concludes that the discretionary function exception bars the Sais Plaintiffs' claims against the Forest Service for "failing to train, instruct, direct, or supervise the Pueblo crews." Sais Motion at 11. The Participating Agreement delegates to Isleta Pueblo the responsibility for training, instructing, directing, and supervising the thinning crew. See Participating Agreement ¶ III(B), V(F), at 2, 5. As discussed supra, the Forest Service's decisions to hire an independent contractor and to delegate responsibilities to the contractor lay within the Forest Service's discretion. Accordingly, as the discretionary function exception bars claims against the Forest Service, and the independent contractor exception protects the United States from liability based on Isleta Pueblo's actions, the Court dismisses this claim for lack of subject-matter jurisdiction.

D. THE DISCRETIONARY FUNCTION EXCEPTION BARS HOMESITE INDEMNITY'S AND THE STATE FARM PLAINTIFFS' CLAIMS.

The Court also concludes that it lacks subject-matter jurisdiction over the State Farm Plaintiffs' and Homesite Indemnity's claims. The parties agreed at the March 8, 2019, hearing that the arguments from the Ohlsen Motion, C De Baca Motion, and the Sais Motion, and the relevant responses and replies would apply to the State Farm Plaintiffs and Homesite Indemnity. See Ohlsen Response at 1 n.1 (stating that the Ohlsen response speaks for all Plaintiffs); March 8 P.M. Tr. at 117:1-15 (Ortega, Court); March 8 P.M. Tr. at 118:2-8 (Tosdal). The Court applies, accordingly, its conclusions from the preceding sections on the discretionary function exception to the State Farm Plaintiffs and Homesite Indemnity.

The Court begins with the State Farm Plaintiffs' claims. As discussed supra, the Forest Service's silviculture decisions and fire restriction decisions are within the Forest Service's discretion. Accordingly, the discretionary function exception divests the Court of subject-matter jurisdiction over the State Farm Plaintiffs' claims of the Forest Service's

State Farm Complaint ¶¶ 30 (a)-(c), at 8. Additionally, as discussed supra, the Forest Service has discretion in hiring contractors and delegating responsibilities, and the Participating Agreement delegates to Isleta Pueblo the responsibilities for fire safety, for supervising and directing the thinning crew, see Participating Agreement ¶ V(F), at 5, for completing the thinning work, and for safeguarding Isleta Pueblo's, the public's, and the Forest Service's interests that the thinning implicates, see Participating Agreement ¶¶ II(B), (D), at 2, so the discretionary function exception bars claims based on the masticator operation by the thinning crew. See State Farm Complaint ¶ 30 (c), at 8. Likewise, as discussed supra, the Forest Service's decisions regarding hiring an independent contractor, training its and the contractor's employees, and supervising the contractor are discretionary, so the discretionary function exception bars the State Farm Plaintiffs' claims of the Forest Service

State Farm Complaint ¶¶ 30 (a)-(b), at 8.

The Court turns to Homesite Indemnity's claims. As discussed supra, the Forest Service has discretion in hiring contractors and delegating responsibilities, and the Participating Agreement and Statements of Work delegate to Isleta Pueblo responsibility for conducting the thinning operations. Accordingly, the discretionary function exception divests the Court of jurisdiction over Homesite Indemnity's claims of the Forest Service

Homesite Complaint ¶ 25(a)-(m), at 5, to the extent any of those claims rest on the Forest Service's supervision over Isleta Pueblo. Additionally, as discussed supra, the Forest Service's decisions about mastication, forest management, fire suppression, training, and hiring independent contractors are discretionary, so the discretionary function exception bars Homesite Indemnity's claims to the extent the claims are based on the decisions that led to the mastication, to the Forest Service reaction to the Dog Head Fire, and to the Forest Service's actions in hiring, training, and selecting Isleta Pueblo and the thinning crew. See Homesite Complaint ¶ 25, at 5. The Court concludes, accordingly, that it lacks subject-matter jurisdiction over the State Farm Plaintiffs' and Homesite Indemnity's claims because of the discretionary function exception.

V. THE OHLSEN PLAINTIFFS, C DE BACA, CIANCHETTI, AND THE SAIS PLAINTIFFS DID NOT PROPERLY EXHAUST ALL THEIR 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. The Court divides its discussion of the claims by Plaintiff, grouping C De Baca and Cianchetti together, and addresses each claim separately.

A. THE ADMINISTRATIVE EXHAUSTION REQUIREMENT BARS SOME OF THE OHLSEN 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 United States complains in the Ohlsen Motion that the Ohlsen Plaintiffs did not exhaust their claim based on the Forest Service's and the thinning crew's fire suppression activities. See Ohlsen Motion at 12-13. In the Ohlsen Reply, the United States adds that the Ohlsen Plaintiffs failed to exhaust their claims of the United States' liability based on the thinning crew's actions and of the Forest Service's negligence for not having a fire engine accompany the masticator. See Ohlsen Reply at 32-33. The Court takes each argument in turn and divides the claim about fire suppression activity into two claims: (i) Isleta Pueblo fire suppression activity; and (ii) the Forest Service's fire suppression activity.

First, the Court concludes that the Ohlsen Plaintiffs properly exhausted their claim based on Isleta Pueblo's fire suppression activities. "[A] claim should give notice of the underlying facts and circumstances `rather than the exact grounds upon which plaintiff seeks to hold the government liable.'" Staggs v. U.S. ex rel. Dep't of Health & Human Servs., 425 F.3d at 884 (quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d at 853). The allegations that the thinning crew "did not attempt to suppress the fire in its very small incipient state" alert the United States that the Ohlsen Plaintiffs are bringing claims about the thinning crew's actions after the fire ignited. Ohlsen Notice of Claim ¶¶ 11, at 4. This language speaks immediately to the Ohlsen Plaintiffs' claim that Isleta Pueblo was not in a position to and did not suppress the Dog Head Fire. See Ohlsen Plaintiffs' Claim List at 1. The Court concludes, accordingly, that the exhaustion requirements do not bar this claim.

Second, the Court concludes that the Ohlsen Plaintiffs have not exhausted their claim that the Forest Service failed to suppress the Dog Head Fire. See Ohlsen Plaintiffs' Claim List at 1. In their Ohlsen Response, the Ohlsen Plaintiffs indicate that they allege that "[t]he 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," and that "[t]he 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." Ohlsen Notice of Claim ¶¶ 11-12, at 4. These negligent supervision and training allegations do not alert the United States of the Ohlsen Plaintiffs' claim that the Forest Service "failed to and were not in the position to suppress the fire at the time of ignition, and the USFS is complicit in that failure because of its prior knowledge of the waist deep slash." Ohlsen Plaintiffs' Claim List at 1. Nothing indicates that the Ohlsen Plaintiffs seek to hold the United States liable for the Forest Service's direct actions responding to the Dog Head Fire. Throughout the Ohlsen Notice of Claim, the Ohlsen Plaintiffs differentiate the "Project" or "agency named in this claim" from "the contractor" and "crew." Ohlsen Notice of Claim ¶¶ 4-14, at 3-4. The Ohlsen Plaintiffs' allegations about the thinning crew's failure to suppress the fire do not, therefore, give the United States' notice of the Ohlsen Plaintiffs' claim about the Forest Service's fire suppression actions. The Court will dismiss, accordingly, this claim for lack of jurisdiction.

Third, the Court concludes that, other than the claim about Isleta Pueblo's fire suppression activities, the Ohlsen Plaintiffs did not exhaust their administrative remedies for their claims of the United States' liability for Isleta Pueblo's actions. The Ohlsen Plaintiffs make clear in the Ohlsen Notice of Claim their intent to bring claims against any actor involved in directing the project which included the thinning activities on Unit 4; they write:

Ohlsen Notice of Claim at 3. As discussed supra, throughout the Ohlsen Notice of Claim, however, the Ohlsen Plaintiffs differentiate the "Project" or "agency named in this claim" from "the contractor" and "crew." Ohlsen Notice of Claim ¶¶ 4-14, at 3-4. The Ohlsen Plaintiffs consistently use words like directed, approved, supervised, or trained to describe the Forest Service's relationship with the contractor and thinning crew. See Ohlsen Notice of Claim ¶¶ 4-14, at 3-4. Although "the FTCA's notice requirements should not be interpreted inflexibly," Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d at 853, nothing in this language alerts the United States to the Ohlsen Plaintiffs' claim of the United States' liability for the thinning crew's actions. Cf. Kikumura v. Osagie, 461 F.3d 1269, 1302 (10th Cir. 2006)(finding, in a situation the reverse of the allegations here, where an inmate filed a notice of claim alleging an employee's direct liability, the claim "fail[ed] to mention the possibility that his injuries were caused by the inadequate training and supervision" so did not exhaust the plaintiffs administrative remedies).

Fourth, the Court concludes that the Ohlsen Plaintiffs properly exhausted their administrative remedies for the claims of the Forest Service's negligence in not having a fire engine accompanying the masticator. The Ohlsen Plaintiffs allege in the Ohlsen Notice of Claim that "[t]he 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." Ohlsen Notice of Claim ¶ 12, at 4. Nothing in this statement restricts the Ohlsen Plaintiffs' claim to the fire equipment that the Forest Service required that the thinning crew have "on hand." Ohlsen Notice of Claim ¶ 12, at 4. Sufficient fire suppression equipment might include a fire engine. The Court views, accordingly, this claim as properly exhausted.

The Ohlsen Plaintiffs' arguments about their knowledge at the time they filed the Ohlsen Notice of Claim do not persuade the Court to reach a different conclusion. See March 8 A.M. Tr. at 92:7-15 (Dow); id. at 93:12-17 (Dow); id. at 92:16-93:9 (Dow). The Court agrees with the United States that the Tenth Circuit has directed district courts to disregard a plaintiff's knowledge at the notice of claim's filing. See Lopez v. United States, 823 F.3d 970, 977 (10th Cir. 2016)(explaining that a district court should not have considered in deeming the exhaustion requirement satisfied that, when filing the notice of claim, the plaintiff's counsel did not have the information to allege a claim based on a doctor's competence). The Tenth Circuit emphasizes that the exhaustion inquiry should focus on whether the plaintiff notified the United States of the claim. See Lopez v. United States, 823 F.3d at 977. Accordingly, the Court concludes that it lacks jurisdiction over the Ohlsen Plaintiffs' claim that the Forest Service "failed to and [was] not in the position to suppress the fire at the time of ignition, and ... is complicit in [Isleta Pueblo's failure to suppress the fire] because of its prior knowledge of the waist deep slash," Ohlsen Plaintiffs' Claim List at 1, and the Ohlsen Plaintiffs' claims of the United States' liability for the thinning crew's actions, because the Ohlsen Plaintiffs failed to exhaust their administrative remedies for those claims. The Court has jurisdiction over the other claims about Isleta Pueblo's fire suppression activities and about the Forest Service's failure to have a fire engine at Unit 4 during mastication.

B. C DE BACA AND CIANCHETTI ONLY PROPERLY EXHAUSTED THEIR CLAIM ABOUT THE THINNING CREW'S EQUIPMENT.

The Court concludes that C De Baca and Cianchetti properly exhausted two of the three claims that the United States challenges for failure to exhaust. The Court addresses each claim separately. First, the Court concludes that C De Baca and Cianchetti exhausted their claim that

C De Baca Motion at 1. The C De Baca Notice of Claim and the Cianchetti Notice of Claim notify the United States to investigate all aspects of the thinning crew's masticator operations on June 14, 2016; in the C De Baca Notice of Claim and the Cianchetti Notice of Claim, C De Baca and Cianchetti allege: "As a result of negligent operation of equipment, and/or negligence in commencing fire suppression activity, the Dogs Head Fire commenced and spread." C De Baca Notice of Claim at 4; Cianchetti Notice of Claim at 4. This C De Baca Notice of Claim and Cianchetti Notice of Claim statement encompasses all concerns whether, on June 14, 2016, the thinning crew was operating a masticator that it should not have operated in Unit 4, such as a masticator that masticator was sparking — either from its technical problems or from the challenging terrain — such that the thinning crew should have stopped operation.

The cases that the United States cites are inapposite. In Benally v. United States, the Tenth Circuit concluded that a plaintiff did not properly exhaust a claim where the plaintiff brought a claim based on events — post-operative care — that constituted a series of occurrences apart from the discrete event — the initial operation — alleged in the notice of claim. See 735 F. App'x at 488. Likewise, in Gallegos v. Wood, No. CIV 13-1055 JB/KBM, 2017 WL 3701866 (D.N.M. Aug. 25, 2017)(Browning, J.), the notice of claim referenced a single episode during an individual's hospitalization and did not reference events post-hospitalization. See 2017 WL 3701866, at *40. The Court concluded that this notice of claim did not properly exhaust a claim based onpost-hospitalization events. See 2017 WL 3701866, at *40. Here, on the other hand, C De Baca and Cianchetti allege actions in the C De Baca Complaint and Cianchetti Complaint that are not separate, discrete events from the C De Baca Notice of Claim' and the Cianchetti Notice of Claim' allegation. Cf. Gallegos v. Wood, 2015 WL 6393561, at *21 (D.N.M. Oct. 1, 2015) (describing cases like Benally v. United States and Gallegos v. Wood as involving attempts "to unify a series of separate incidents"). On June 14, 2016, the masticator operator should have checked that and watched that the masticator functioned properly.

In Barnes v. United States, 707 F. App'x 512, 516 (10th Cir. 2017)(unpublished), the plaintiff raised claims

Barnes v. United States, 707 F. App'x at 516. In her notice of claim, she mentioned only McFadden, so the Tenth Circuit concluded that she did not exhaust her administrative remedies for her other claims. Barnes v. United States, 707 F. App'x at 516. Here, on the other hand, the allegation of negligent operation of equipment puts the United States on notice to investigate all aspects of the masticator's operation on June 14, 2016, including whether the operation should not have occurred or should have ceased because of masticator's condition or the rocky ground. The Court determines, therefore, that C De Baca and Cianchetti exhausted this claim.

C De Baca and Cianchetti did not, however, exhaust their claims based on the Forest Service's "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. Although having the proper fire extinguishment tools relates to fire suppression, "negligence in commencing fire suppression activity" alerts the United States to investigate how the Forest Service responded to the fire's ignition, and not to inquire what equipment the Forest Service provided the thinning crew. C De Baca Motion at 1. Likewise, nothing in the C De Baca Notice of Claim and the Cianchetti Notice of Claim mention Unit 4's undergrowth or the Forest Service's silviculture decisions. The United States had no notice to investigate such concerns. The Court concludes, accordingly, that C De Baca and Cianchetti did not properly exhaust these claims.

C. THE SAIS PLAINTIFFS ONLY PROPERLY EXHAUSTED THEIR CLAIM ABOUT THE THINNING CREW'S EQUIPMENT.

The Court concludes that the Sais Plaintiffs similarly only properly exhausted their claim about the thinning crew's equipment. As the Sais Plaintiffs bring the same claims that C De Baca and Cianchetti bring, and the Sais Plaintiffs' Notice of Claim likewise is the same as the C De Baca Notice of Claim and the Cianchetti Notice of Claim, compare C De Baca Motion at 1, C De Baca Notice of Claim at 4, and Cianchetti Notice of Claim at 4, with Sais Motion at 11-12, and Sais Plaintiffs' Notice of Claim at 1, the Court reaches the same decisions regarding those claims as it discusses supra for C De Baca's and Cianchetti's claims. Regarding the Sais Plaintiffs' remaining 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, the Court concludes that the Sais Plaintiffs failed to exhaust their administrative remedies. The Sais Plaintiffs' Notice of Claim alerts the United States to investigate the operation of the masticator and the initial response to the Dog Head Fire: "As a result of negligent operation of equipment, and/or negligence in commencing fire suppression activity, the Dogs Head Fire commenced and spread." Sais Plaintiffs Notice of Claim at 1. Nothing in this claim relates to the Forest Service's silviculture decisions or to the Forest Service's hiring of, supervision of, or training of Isleta Pueblo and the thinning crew. See Kikumura v. Osagie, 461 F.3d at 1302 (concluding that, where an inmate filed a notice of claim alleging an employee's direct liability, the claim "fail[ed] to mention the possibility that his injuries were caused by the inadequate training and supervision" and did not exhaust administrative remedies). Accordingly, the Court concludes that the Sais Plaintiffs only exhausted their claim that the Forest Service did not ensure that the masticator was in good condition and the appropriate equipment for Unit 4. The Court dismisses the other claims for lack of subject-matter jurisdiction. Hence, 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.

IT IS ORDERED that: (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), is granted; (ii) all claims in the Ohlsen Plaintiffs' Second Amended Complaint, filed August 15, 2018 (Doc. 38)("Ohlsen Complaint"), Plaintiff's Amended Complaint for Negligence Arising Under the Federal Tort Claims Act, filed November 27, 2017 (Doc. 5)("C De Baca Complaint"), Cianchetti v. United States of America, No. CIV 17-1186 JB*KK, Plaintiff's Complaint for Negligence Arising Under the Federal Tort Claims Act, filed December 1, 2017 (Doc. 1)("Cianchetti Complaint"); Sais v. United States, No. CIV 18-0496 JB*JHR, Plaintiffs Amended Complaint for Negligence Arising under the Federal Tort Claims Act, filed November 6, 2018 (Doc. 16)("Sais Complaint"); Homesite Indemnity Co. v. United States, No. CIV 17-1233 JB*KK, Complaint ¶ 25, at 5, filed December 15, 2017 (Doc. 1)("Homesite Complaint"), and State Farm Fire and Casualty Co. v. United States, No. CIV 18-0367 JB*KK, Nature of Action, filed April 19, 2018 (Doc. 1)("State Farm Complaint"), based on the Pueblo of Isleta's and the thinning crew's actions are dismissed without prejudice; (iii) the United States of America's Motion to Dismiss Ohlsen Plaintiffs' Second Amended Complaint Due to Lack of Subject Matter Jurisdiction, filed November 2, 2018 (Doc. 62)("Ohlsen Motion"), is granted in part and denied in part; (iv) the Defendant United States of America's requests in the Ohlsen Motion that the Court dismiss the Ohlsen Plaintiffs'222 res ipsa loquitur and non-delegable duty claims are granted; (v) the United States' request in the Ohlsen Motion that the Court dismiss the Ohlsen Complaint's claims alleging the United States Forest Service actions because the discretionary function exception divests the Court of subject-matter jurisdiction is granted; (v) the United States' request in the Ohlsen Motion that the Court dismiss, for the Ohlsen Plaintiffs' failure to exhaust, the Ohlsen Complaint's claim based on the Forest Service's fire suppression activities is granted; (viii) the United States' requests in 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"), that the Court dismiss the Ohlsen Complaint's claims based on the United States' liability for Isleta Pueblo's actions, other than the claim about Isleta Pueblo's fire suppression activities, is granted; (ix) the United States' request in the Ohlsen Reply that the Court dismiss the Ohlsen Complaint's claim based on the Forest Service's negligence in not having a fire engine accompanying the masticator is denied; (x) the Ohlsen Complaint is dismissed without prejudice, because, with the independent contractor exception, the dismissal of the Ohlsen Plaintiffs' res ipsa loquitur and non-delegable duty claims, the discretionary function exception, and the Ohlsen Plaintiffs' failure to exhaust administrative remedies, the Court lacks subject-matter jurisdiction over any claims in the Ohlsen Complaint; (xi) 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"), is granted in part and denied in part; (xii) the United States' request in the C De Baca Motion that the Court dismiss the C De Baca Complaint's and the Cianchetti Complaint's claims based on the Forest Service's actions because the discretionary function exception divests the Court of subject-matter jurisdiction is granted; (xiii) the United States' request in the C De Baca Motion that the Court dismiss, based on Plaintiffs Catherine C De Baca's and Gary Cianchetti's failures to exhaust administrative remedies, the C De Baca Complaint's and the Cianchetti Complaint's claim that the Forest Service failed to ensure that its equipment was in good working order and was the appropriate equipment for the terrain is denied; (xiv) the United States' requests in the C De Baca Motion that the Court dismiss, for C De Baca and Cianchetti's failures to exhaust administrative remedies, the C De Baca Complaint's and the Cianchetti Complaint's claims that the Forest Service did not provide proper fire extinguishment tools and failed to manage the undergrowth in Treatment Unit 4 are granted; (xv) the C De Baca Complaint and the Cianchetti Complaint are dismissed without prejudice, because, with the independent contractor exception, the discretionary function exception, and C De Baca's and Cianchetti's failures to exhaust their administrative remedies, the Court lacks subject-matter jurisdiction over any claims in the C De Baca Complaint and the Cianchetti Complaint; (xvi) 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"), is granted in part and denied in part; (xvii) the United States' request in the Sais Motion that the Court dismiss the Sais Complaint's claims based on the Forest Service's actions because the discretionary function exception divests the Court of subject-matter jurisdiction is granted; (xviii) the United States' request in the Sais Motion that the Court dismiss, based on Plaintiffs David Sais, Lucille Sais, Tomas Apodaca, Christine Apodaca, and Jeff Sorroche (the "Sais Plaintiffs") failures to exhaust administrative remedies, the Sais Complaint's claims in that the Forest Service failed to ensure that its equipment was in good working order and was the appropriate equipment for the terrain is denied; (xix) the United States' requests in the Sais Motion that the Court dismiss, based on the Sais Plaintiffs' failures to exhaust administrative remedies, the Sais Complaint's claims that the Forest Service did not provide the proper fire extinguishment tools, failed to manage the undergrowth in the area where the Dog Head Fire ignited, and "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, are granted; (xx) the Sais Complaint is dismissed without prejudice, because, with the independent contractor exception, the discretionary function exception, and the Sais Plaintiffs' failures to exhaust their administrative remedies, the Court lacks subject-matter jurisdiction over any claims in the Sais Complaint; (xxi) the United States' request in the Ohlsen Motion as adopted 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 that the Court dismiss the State Farm Complaint's and the Homesite Complaint's claims based on the Forest Service's actions because the discretionary function exception divests the Court of subject-matter jurisdiction over those claims is granted; (xxii) the United States' requests in the Ohlsen Motion as adopted against the State Farm Plaintiffs that the Court dismiss State Farm Complaint's res ipsa loquitur and non-delegable duty claims is granted; (xxiii) the Homesite Complaint and the State Farm Complaint are dismissed without prejudice, because, with the independent contractor exception, the discretionary function exception, and the dismissal of the State Farm Complaint's res ipsa loquitur and non-delegable duty claims, the Court lacks subject-matter jurisdiction over any claims in the Homesite Complaint and the State Farm Complaint; (xxiv) the Ohlsen Plaintiffs' requests in 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"), the Ohlsen Plaintiffs' Objections to Third Declaration of Ian Fox, filed March 5, 2019 (Doc. 134)("Fox Objections"), 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"), and 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"), are sustained in part and overruled in part; (xxv) the Court makes individualized rulings on the Ohlsen Plaintiffs' evidentiary objections in the First Objections, the Fox Objections, the Motion to Strike, and the Motion to Strike Reply throughout this Memorandum Opinion and Order's Factual Background and Analysis sections; (xxvi) the Ohlsen Plaintiffs' request in the Motion to Strike to file surreply addressing the Third Declaration of Ian Fox (dated February 27, 2019), filed February 28, 2019 (Doc. 125)("Third Fox Decl."), is granted; (xxvii) the United States may file a surreply in response to the Ohlsen Plaintiffs surreply on the Third Fox Decl.; (xxviii) the Defendants' Motion for Leave to File Supplemental Brief, filed May 8, 2019 (Doc. 179), is granted; (xxix) the Defendants' Motion for Leave to File Supplemental Brief, filed May 8, 2019 (Doc. 179)("Supplemental Briefing Motion"), is granted; and (xxx) the Plaintiffs may file supplemental briefing in response to the United States' briefing filed pursuant to the grant of the Supplemental Briefing Motion.