SEATTLE — A federal appeals court panel has rejected Port Angeles resident Susan Chadd’s lawsuit over her husband’s fatal goring by a mountain goat that had been threatening visitors for years in Olympic National Park.
However, in their ruling, two of the three 9th Circuit Court of Appeals judges suggested that Chadd should be allowed to pursue her claims.
“Because it’s not over yet, I’m not going to comment on a pending appeal,” one of Chadd’s lawyers, personal injury lawyer Stephen Bulzomi of Tacoma, told Peninsula Daily News on Tuesday.
“When the final decision in the case is made, I’ll have comment.”
Chadd sued the federal government after her husband, 63-year-old Robert Boardman, was gored in the leg Oct. 16, 2010, by the 370-pound animal nicknamed by park personnel as “Klahhane Billy.”
Boardman, a diabetes nurse and local musician, had tried to fend off the mountain goat with a walking stick while hiking with Chadd and friend Pat Willits on Switchback Trail on Klahhane Ridge in the park south of Port Angeles.
Negligence claim
Chadd argued that park officials were negligent in failing to kill or relocate the animal, which park officials knew was highly aggressive, before the fatal attack.
After the goring, the animal stood over Boardman, refusing to allow anyone to get close enough to render aid as the man bled to death from an injury to the femoral artery.
Park officials destroyed the mountain goat within hours.
U.S. District Court Judge Robert Bryan in Tacoma previously dismissed Chadd’s case, saying the federal government is immune from lawsuits when officials are exercising discretion in matters of policy.
The appeals court on Monday in Seattle agreed with Bryan in its 2-1 ruling that coincided with an unusual spate of bison attacks on tourists at Yellowstone National Park.
A Mississippi woman suffered minor injuries recently when a bison flipped her after she turned her back to pose for a self-photograph with the beast.
Judge’s decision
In the lead opinion in the Olympic National Park case, Judge Diarmuid O’Scannlain reasoned that park officials had discretion in deciding how to handle the problem goat.
But the other judge in the majority, Marsha Berzon, wrote that while she was bound by 9th Circuit precedent, she agreed with dissenting Judge Andrew Kleinfeld that “our jurisprudence in this area has gone off the rails” and needs to be reconsidered.
In his dissent, Kleinfeld said the case wasn’t a matter of discretion — just ordinary negligence.
“Letting an identified aggressive 370-pound goat threaten park visitors and rangers for years until it killed one amounted to a failure to implement the formally established park policy for managing dangerous animals,” Kleinfeld wrote.
“Written park policy provided a series of steps for dealing with animals dangerous to park visitors, from frightening the animal away to removing or killing it.”
In a late July email to state wildlife officials 10 weeks before Boardman’s death, park Chief Biologist Patti Happe noted that Klahhane Billy was not responding to attempts to stay away from humans, and Happe suggested more serious options such as relocation.
“The record does not show that the park did anything about the goat at all in the next 2½ months,” Kleinfeld said.
Boardman, Kleinfeld said, “was killed by a horned animal bigger than an NFL lineman, that had been the terror of the park for four years.”
Some legal scholars have long criticized the notion that the federal government is immune from lawsuits when officials exercise discretion, saying that virtually any action or inaction by a government official can be rationalized that way.
Another hearing
One of Chadd’s attorneys, James McCormick, said Tuesday he considered Berzon’s concurring opinion an invitation to ask the 9th Circuit to rehear the case with a larger panel of jurists — and to perhaps clarify the law.
“The intention of the law was to protect high level discretion of policy makers, not the day-to-day actions of people on the ground,” McCormick said.
“This is a case that deserves to get tried on the merits.”
Court spokesman David Madden said Chadd has 45 days from Monday’s decision to seek a rehearing.
Park spokeswoman Barb Maynes said Tuesday that park officials had not yet reviewed the ruling.
“We’re just going to be reading through it and monitoring it and awaiting the next word,” she said.
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Senior staff writer Paul Gottlieb of The Peninsula Daily News and Associated Press writer Gene Johnson contributed to this report.
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