Hantavirus in Yosemite
posted by Kyle Graham
Among the bloggers on this site, it probably falls to me to discuss the spate of hantavirus cases tied to Camp Curry in Yosemite National Park. I’m a former park ranger, I used to live on Yosemite’s eastern shoulder, and I have some personal experience with hantavirus and related diseases. (When my wife and I moved to Mono County, we found affixed to the door of our new home a flier that advised us that one of our neighbors had just died from the plague. Welcome to the neighborhood.)
For those of you who haven’t been following this story, several cases of hantavirus—a nasty, potentially lethal disease with no known cure—have been traced back to a bevy of newish tent cabins in Camp Curry, a popular campground within Yosemite National Park. Hantavirus is associated with rodents, and it is believed that the mice that represent the disease vectors here nested in the insulation found inside the cabins’ walls. As of writing, two people have died from the disease, a few others have become sick, and the Centers for Disease Control have announced that up to 10,000 park visitors may be at risk.
It’s difficult to assess the likely liability here, since we (or, at least, I) don’t know at least four important facts: (1) who, as between the park and its employees on the one hand and an independent contractor / concessionaire on the other, designed, built, and maintained the cabins; (2) what, if any, regulations and policy directives applied to the construction and maintenance of the cabins; (3) precisely what notice the park and /or contractor had regarding the threat of hantavirus in Camp Curry; and (4) what steps were taken to prevent infestation, post-construction. These facts bear upon the applicability of the Federal Tort Claims Act and its exception for discretionary functions, as well as the existence vel non of negligence.
It’s worth noting, however, that courts often interpret the discretionary-function exception quite broadly when they consider claims that allege that national-park employees mismanaged park resources, especially wildlife. Just last week, for example, a federal district court in Seattle dismissed a lawsuit arising out of a fatal mountain goat attack in Olympic National Park, on the ground that it generally lay within the sound discretion of park officials to decide how to manage the local mountain goat population. Earlier this year, the United States Court of Appeals for the Third Circuit affirmed a similar holding by a district court in a suit involving a barracuda attack in the Virgin Islands. Back in 2011, a Utah court reached a contrary decision in a case involving a fatal bear attack, but there, the bear already had attacked another park visitor, such that the plaintiffs could persuasively argue that it had to be destroyed, or other precautions taken.
I suspect that most judges feel out out of their element in second-guessing park officials’ decisions regarding human-wildlife interactions, unless stark facts exist that establish that park officials made a patently misguided decision. Garden-variety traffic accidents in the parks lie at the opposite extreme, for the most part, with judges being sufficiently familiar with these fact patterns that they accept a more searching, skeptical role. Somewhere in the middle lie signage cases, which certainly have their analogues in conventional civil practice, but which suffer from the sense that parks should remain relatively pristine, leaving more room for official discretion than would exist outside of a parks setting. This split raises some interesting questions regarding the appearance versus the reality of “expertise,” but those questions are probably best left for another time.