Deadly Goat Goring at Federal Preserve: No Government Liability, Based on “Discretion”

The Takeaway:

A visitor to a national park died as a result of an attack by a mountain goat.  Plaintiff alleged that park officials breached their duty of reasonable care by failing to destroy an aggressive mountain goat years earlier.

The government was immune from liability, however.  The Appellate Court affirmed the district court’s dismissal for lack of subject matter jurisdiction.  The government’s failure to destroy the goat before the deceased’s visit fell within the “discretionary function” exception to liability.  The federal government was entitled to sovereign immunity under the Federal Tort Claims Act’s discretionary function exception.

The Facts:

Park officials knew about aggressive mountain goats in the Park as early as 2006, and they warned visitors of the danger. By 2010, visitors were reporting an aggressive goat.  Park personnel tried aversion conditioning and considered moving the goat.

Plaintiff and her now-deceased husband were attacked; officials destroyed a 370-pound goat with bloody horns. Plaintiff sued the U.S. government and the National Park Service under the Federal Tort Claims Act (FTCA) alleging a breach of duty by failing to timely destroy the goat.

The district court dismissed under F.R.Civ.P. 12(b)(1) lack of federal subject-matter jurisdiction; the Appellate Court affirmed.

The Analysis:

The Appellate Court considered immunity under the FTCA’s “discretionary function” exception; the Court explored whether there existed a statute or policy that required the Service to destroy the goat before the attack.  The Service’s “Management Policies” manual was mandatory; pursuant to the manual, saving human life was the priority.  But this was subject to the sometimes conflicting requirements of the Organic Act of 1916, requiring that discretionary management activities be undertaken only to the extent that they do not impair park resources.

The government’s freedom to address hazards is restricted by what is “practicable and consistent with congressionally designated purposes and mandates,” so numerous factors must be considered, while also ensuring human safety.  The manual included guidance regarding non-native species (including mountain goats), but did not require action concerning an exotic animal that was threatening public safety.  The Park’s Nuisance and Hazardous Management Animal Plan did not require action and the Park’s Mountain Goat Action Plan did not specify incident management techniques. As a result, no statute, regulation, or policy required Park officials to destroy the goat prior to the death, resulting in discretion.

The Court considered whether the judgment employed by Park officials was the type the discretionary function exception was designed to shield – namely, government actions flowing from social, economic, and political policy.  The Park argued that the public valued the mountain goats, which supported implementation of solely non-lethal management, and while human safety is a priority, the means to achieve this was within the government’s discretion.

The Court found that the decision to use non-lethal methods to manage the aggressive goat was susceptible to policy analysis, and the discretionary function exception applied.

Cite: Chadd v. U.S. National Park Service (9th Cir., filed July 27, 2015)  12-36023


The Marcin Law Firm, LLP, argues immunity issues on behalf of individuals and businesses in state and federal courts.  The Firm engages in detailed, updated research and aggressively litigates these governmental claims of immunity.  

To learn more about the Firm, its lawyers, or their law practices, call (818) 305-2800, email, or visit

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Posted in discretion, federal government, immunity, wild goat, wildlife management | Tagged , , , | Leave a comment

No Privacy Claims Against Netflix for Subscriber-Centric Disclosures

The Takeaway:

Disclosures by Netflix about subscribers’ viewing history do not violate the federal Video Privacy Protection Act (Act) or California Civil Code Sec. 1799.3 where the disclosures are made to subscribers themselves.  The fact that a subscriber may permit third parties to access an account, thereby allowing third parties to view Netflix’s disclosures, does not alter the legal status of those disclosures.  Plaintiff’s state law claim also failed, because Civil Code Sec. 1799.3 excluded disclosures to subscribers themselves.

The Facts:

Netflix’s user interface displays a subscriber’s “queue” and “recommendation list” on display devices connected to the subscriber’s account.  As a result, if a group is viewing a display that accesses one of the subscriber’s Netflix accounts, all of the assembled are able to view the account-holder’s queue and recommendation list.  These lists are visible to any Netflix subscriber’s associates when they use a subscriber’s account or are with the subscriber when the subscriber accesses the account.

Plaintiffs sued Netflix under the Video Privacy Protection Act.  Plaintiffs contended this violated the Act’s prohibition on disclosure of “personally identifiable information concerning any customer” to “any person.”  Plaintiffs posited that Netflix should allow more subscriber control over how information displays, or should take other actions to prevent inadvertent disclosures to third parties.

The Court rejected these arguments however, finding that the Act does not require particular technical specifications for disclosure.  The district court dismissed; the 9th Circuit affirmed.

The Analysis:

The Act excludes certain disclosures, including disclosures to the consumer.  The Court found that the disclosure by Netflix falls within this exclusion category, ruling that the fact that a subscriber allows others to access her account, thereby allowing third parties to view Netflix’s disclosures, does not alter the legal status of the disclosures.

No matter the particular circumstances at a subscriber’s residence, Netflix’s actions remain the same: it transmits information automatically to the device that a subscriber connected to a Netflix account.  The lawfulness of this disclosure cannot depend on circumstances outside of Netflix’s control.

Cite:  Mollett v. Netflix, Inc., No. 12-17045 (9th Cir. July 31, 2015)

The Marcin Law Firm, LLP, is at the forefront of digital issues, including streaming technology and privacy.  The Firm’s counsel often speak and write on this and related topics to business and legal audiences throughout California. 

For more information about the Firm, its lawyers, or their practices, call (818) 305-2800, e-mail, or visit

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Posted in Privacy, statute, streaming, video | Tagged , | Leave a comment

Shark Fin Fishing Limits Wholly Constitutional: No Pre-Emption, or Anything Else

The Takeaway:

The 9th Circuit held that California’s Shark Fin Law is not preempted by the federal Magnuson-Stevens Act regarding management of shark fishing in the ocean off the California coast. The Association did not allege that the Shark Fin Law discriminated against interstate commerce, and it failed to establish a significant burden on interstate commerce.

The Shark Fin Law is valid under the dormant Commerce Clause; it does not burden interstate commerce. Because the Association could not show that the law excessively interfered with local benefits, the Court affirmed the district court’s dismissal.  Chinatown Neighborhood Association v. Harris (9th Cir. July 27, 2015) 14-15781.

The Facts:

The Chinatown Neighborhood Association and Asian Americans for Political Advancement (Association) filed suit in federal district court to challenge California’s “Shark Fin Law” (Fish & Game Code §2021(b)).  The Shark Fin Law criminalizes possessing, selling, trading, or distributing shark fins in California.

The Association comprised individuals who had engaged in cultural practices and commerce involving shark fins. The Association argued that the law violated the federal Constitution’s Supremacy Clause because it interfered with the federal government’s authority to manage ocean fishing off the California coast, and also the dormant Commerce Clause, by interfering with interstate commerce in shark fins.

The Association asserted that the Shark Fin Law interfered with the federal government’s authority (Magnuson-Stevens Fishery Conservation and Management Act (MSA)) to manage shark fishing in the “exclusive economic zone” (extending 200 miles from the US coastline).  The Association argued that the law was per se invalid under the Commerce Clause because it regulated extraterritorially by inhibiting shark fin commerce between California and out-of-state destinations.

The district court dismissed the amended complaint, and the 9th Circuit affirmed.

The 9th Circuit Analysis:

Regarding the Supremacy Clause, the MSA did not include an “express preemption” provision, so the Association needed to show “field preemption.”  But the Association failed to establish actual conflict (even considering the provisions of the Shark Fin Law, it remained legal to use the balance of a shark, so the effect was just a minor infringement to federal interests).  This was insufficient to overcome the presumption against federal preemption.

The Association failed to establish a complete conflict in the manners that the MSA and the Shark Fin Law implemented their statutory goals: they both focus on conservation.  The Court rejected the Association’s position that Congress’ failure in the MSA to address on-land activities related to finning was insufficient to establish preemption.  Rather, the federal scheme preserved the state’s ability to regulate fishing-related activities within its borders.

The Association conceded that no part of federal law affirmatively guaranteed the right to use or sell shark fins onshore, and commercially viable uses for sharks existed (aside from their fins), so the preemption issue was resolved (the 9th Circuit held that the district court did not err in refusing its request to amend its complaint to plead new facts).

The Commerce Clause argument also fell flat; nothing flowing from the Shark Fin Law’s extraterritorial reach made it per se invalid.  The Commerce Clause does not preclude state laws regulating commercial relationships among in-state parties, nor does it prohibit a state law with significant extraterritorial effects (where they result from the regulation of in-state conduct).

Cite:  Chinatown Neighborhood Association v. Harris
(9th Cir. July 27, 2015) 14-15781


The Marcin Law Firm, LLP, represents businesses and associations across many industry sectors, including hospitality.  The Firm’s lawyers frequently argue state and federal constitutional issues for business and individual clients.  

For more information about the Firm, its lawyers, or its law practice, call (818) 305-2800, e-mail, or visit 

The Firm welcomes your inquiries. 


Posted in commerce clause, Constitutional law, federal law, fishing, pre-emption, sharks, state law | Tagged , , , , , , , , | Leave a comment