Perank et al v. US

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
WAYNE PERANK and MONICA
NEBEKER,
Plaintiffs,
v.
UNITED STATES,
Defendant.
MEMORANDUM DECISION AND ORDER
DENYING MOTION FOR
RECONSIDERATION
Case No. 2:20-cv-00712-JNP
District Judge Jill N. Parrish
Wayne Perank and Monica Nebeker (collectively, the plaintiffs) sued the United States for
negligence, alleging that a government project to replace an open-air irrigation canal with an
underground pipe interfered with their access to water for their land. Perank also alleged that the
contractor that performed the work damaged irrigation infrastructure located on his property. The
court granted summary judgment in favor of the government. Now before the court is the plaintiffs’
motion for reconsideration. ECF No. 94. The motion is DENIED.
“Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or
prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
A motion to reconsider, however, may not be used to advance new arguments or supporting facts
that could have been raised in prior briefing. Id. The plaintiffs argue that the court should
reconsider its two principal rulings in the order granting summary judgment.
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I. 	DISCRETIONARY FUNCTION EXCEPTION
The plaintiffs first contend that the court’s ruling that the government is entitled to
immunity under the discretionary function exception is clearly erroneous. In order for this
exception to apply, two conditions must be satisfied. First, the disputed conduct must have been
discretionary in nature. Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). “[T]he
discretionary function exception will not apply when a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow.” Id. Second, the discretionary
conduct must be susceptible to policy analysis. Id. at 536–37.
In its motion for summary judgment, the government argued that the discretionary function
exception barred the main thrust of the plaintiffs’ negligence claim because (1) no federal statute
or regulation prescribed a specific course of action regarding the pipeline project and (2) the project
was susceptible to policy analysis. ECF No. 83 at 18–20. In their response brief, the plaintiffs
ignored the government’s first contention and argued that the exception did not apply because the
government’s decisions regarding the project were not grounded in policy considerations. ECF No.
87 at 14–18. In its ruling on the discretionary function exception, the court noted that the plaintiffs
had “effectively conceded” the first discretionary function requirement by failing to address the
government’s argument on this prong or point to any statute or regulation mandating a specific
course of action. ECF No. 92 at 7. The court further concluded that the government’s decisions
regarding the pipeline project were susceptible to policy analysis and, therefore, that the
discretionary function exception immunized the government from liability for harms that could be
traced to the government’s policy decisions concerning the project. Id. at 10.
In their motion for reconsideration, the plaintiffs argue that the court’s conclusion that that
they had effectively conceded the first requirement of the discretionary function exception was
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clearly erroneous. The court disagrees. The plaintiffs first point to the following reference to the
Indian Department Appropriation Act of 1906, found in their response to the motion for summary
judgment: “The 1906 Act also expressly establishes the [Uintah Indian Irrigation Project] as an
Indian trust asset, stating that title thereto until otherwise provided by law shall be in the Secretary
of the Interior in trust for the Indians . . . .” ECF No. 87 at 4–5. But this sentence is contained in a
section of the response brief titled “Response to Statement of Facts” and makes no reference to the
government’s discretionary function exception argument. Indeed, nowhere in the response brief do
the plaintiffs suggest that the Appropriation Act of 1906 is relevant to the first requirement of this
exception.
The plaintiffs also note that they referenced both 25 U.S.C. § 381 and federal regulations
contained in 25 C.F.R. Part 171 in their amended complaint. The plaintiffs assert that the following
language from § 381 constrains the government’s discretion:
In cases where the use of water for irrigation is necessary to render
the lands within any Indian reservation available for agricultural
purposes, the Secretary of the Interior is authorized to prescribe such
rules and regulations as he may deem necessary to secure a just and
equal distribution thereof among the Indians residing upon any such
reservations . . . .
The amended complaint, however, did not argue that § 381 was relevant to any potential
discretionary function exception that could be raised by the government. Nor is a passing citation
to § 381 and associated regulations in the amended complaint, which was filed more than three
years before the plaintiffs’ response brief, sufficient to challenge the government’s contention in
its motion for summary judgment that no statute, regulation, or policy required a specific course
of action regarding the pipeline project. Because the plaintiffs never addressed this issue in their
response brief or at oral argument on the motion for summary judgment, the court finds that it did
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not err in concluding that the plaintiffs had effectively conceded the first requirement by failing to
shoulder their burden of showing that they should prevail on this requirement. See Hardscrabble
Ranch, L.L.C. v. United States, 840 F.3d 1216, 1220 (10th Cir. 2016) (“Because the discretionary
function exception is jurisdictional, the burden is on [the plaintiff] to prove that it does not apply.”).
The plaintiffs may not raise new arguments concerning the first discretionary function requirement
for the first time in a motion for reconsideration. See Servants of Paraclete, 204 F.3d at 1012.
Moreover, even if it were appropriate to entertain plaintiffs’ new argument, the court would
reject it. In order to prevail on their contention that the first requirement of the discretionary
function exception has not been satisfied, the plaintiffs would have to show that the government’s
decisions regarding the implementation of the pipeline project were not discretionary in nature
because “a federal statute, regulation, or policy specifically prescribe[d] a course of action for an
employee to follow.” Berkovitz, 486 U.S. at 536. The Appropriations Act of 1906 and § 381 only
provide that the Pahcease Canal is held by “the Secretary of the Interior in trust for the Indians”
and that the Secretary may “prescribe such rules and regulations as he may deem necessary to
secure a just and equal distribution [of irrigation water] among the Indians residing upon” the
Uintah and Ouray Reservation. These broad principals governing the administration of irrigation
projects on Indian reservations do not come close to prescribing a specific course of action for
government employees to follow.
In a footnote to their motion for reconsideration, the plaintiffs also argue that the court
erroneously represented that the Ute Indian Tribe had endorsed the pipeline project by signing a
memorandum of agreement because the document merely established a protocol for dealing with
cultural and historical sites. ECF No. 94 at 5. But even if the court erred by characterizing the
Tribe’s endorsement of the memorandum as consent for the government to modify tribal land, the
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court’s ultimate conclusion remains sound. The government’s decision to delay work on the project
until the Tribe signed the memorandum was a susceptible to policy analysis, regardless of whether
the document was a tacit endorsement of the project.
In their reply brief, the plaintiffs further assert that there is nothing in the record to
substantiate the court’s finding that the completion of the project was delayed due to the Tribe’s
delay in executing the memorandum. ECF No. 96 at 4. This assertion is incorrect. The government
cited the affidavit of Kenneth Asay, who averred that the Tribe’s delay in executing the
memorandum delayed the project. ECF Nos. 83 at 9 & 83-2 at 4. The plaintiffs did not dispute this
fact.
Finally, the plaintiffs argue for the first time in their reply brief that the court clearly erred
by suggesting in its order that the interruption to their access to irrigation water was temporary.
But in their briefing on the motion for summary judgment, the plaintiff did not cite any evidence
that they experienced water shortages after the government completed the pipeline project.1 Nor
did they even mention this issue. The plaintiffs may not raise this issue for the first time in a motion
for reconsideration, much less in a reply brief filed in support of such a motion. See Servants of
Paraclete, 204 F.3d at 1012.
In sum, none of the plaintiffs’ arguments for reconsidering the court’s discretionary
function exception ruling are persuasive. The court denies the motion to reconsider this portion of
its order granting summary judgment.
1 Indeed, the plaintiffs do not cite evidence supporting this contention in the briefing on their
motion for reconsideration either. Instead, they assert that they alleged continuing shortages of
water in their amended complaint. But plaintiffs may not rely on allegations made in the complaint
to oppose summary judgment. Sanchez v. Guzman, 105 F.4th 1285, 1299 (10th Cir. 2024).
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II. 	INDEPENDENT CONTRACTOR ISSUE
Although much of the plaintiffs’ negligence claim against the government is barred by the
discretionary function exception, the government conceded that this doctrine did not apply to a
portion of this claim. The government acknowledged that this exception did not immunize the
government from liability for Perank’s claim that the government had damaged his on-farm
irrigation infrastructure during the project. The government argued instead that it was not liable
for any damage to Perank’s infrastructure because the harm was caused by the Excavation
Services, Inc., an independent contractor that it had hired to complete the project. See Logue v.
United States, 412 U.S. 521, 527–28 (1973) (holding that the government is not liable for the
negligence of independent contractors). In determining whether an individual or an entity is an
independent contractor, courts consider the seven Lilly factors, which include:
(1) the intent of the parties; (2) whether the United States controls
only the end result or may also control the manner and method of
reaching the result; (3) whether the person uses her 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.
Lilly v. Fieldstone, 876 F.2d 857, 859 (10th Cir. 1989). The court considered these factors and
found that, when resolving all material disputes of fact in favor of Perank, the evidence cited by
the parties established that Excavation Services was an independent contractor. Therefore, the
government was not liable for its actions. Perank argues that this ruling is clearly erroneous for
three reasons.
First, Perank asserts that the court should not have reached this issue because it had found
that it lacked subject matter jurisdiction due to its discretionary function exception ruling. See
Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d 1216, 1220 (10th Cir. 2016) (holding that
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the discretionary function exception is jurisdictional). But, as noted above, the court ruled that only
a portion of the plaintiffs’ negligence claim was barred by this doctrine. Thus, the court did not err
by addressing the government’s independent contractor argument.
Next, Perank argues that the court clearly erred because Excavation Services’ independent
contractor status was a disputed fact that the court improperly resolved on summary judgment. But
the ultimate question of whether Excavation Services is an independent contractor is not a question
of fact. It is a legal determination based on an evaluation of the underlying facts under the Lilly
factors. Curry v. United States, 97 F.3d 412, 414 (10th Cir. 1996). Thus, a court may apply the Lilly
factors and determine that an entity is an independent contractor on summary judgment so long as
it resolves all disputes regarding the underlying facts in favor of the nonmoving party. See
Gonzagowski v. United States, 495 F. Supp. 3d 1048, 1111 (D.N.M. 2020); Begay v. United States,
188 F. Supp. 3d 1047, 1082 (D.N.M. 2016); see also Harper v. San Luis Valley Reg’l Med. Ctr.,
848 F. Supp. 911, 914 (D. Colo. 1994) (ruling on summary judgment that a plaintiff was an
independent contractor rather than an employee within the meaning of the Fair Labor Standards
Act, reasoning that “the conclusion to be drawn from the undisputed facts may now be drawn as a
matter of law”). Here, the court resolved all disputes of fact relevant to the Lilly factors in favor of
Perank and determined that the undisputed facts established that Excavation Services was an
independent contractor. ECF No. 92 at 12–13. The court did not improperly resolve disputed facts
when making this legal determination.
Finally, Perank argues that summary judgment on the issue of damage to his on-farm
infrastructure was clearly erroneous because further findings are necessary to determine whether
the damage was attributable the government’s improper planning or design rather than Excavation
Services’ actions in executing the plan. But Perank may not merely speculate that the damage to
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his infrastructure may have been caused by the government’s negligent planning at the summary
judgment stage of the litigation. The government cited evidence that Excavation Services was
responsible for removing structures and filling in ditches that served Perank’s land. ECF 83 at 12.
The burden then shifted to Perank to “set forth specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But Perank does not point to
any citations to the record that would support a conclusion that the damage to these structures was
instead caused by negligent planning on the part of the government. Because Perank has not shown
that it cited evidence that would create a dispute of fact on this issue, it has not demonstrated that
the court clearly erred when it granted summary judgment in favor of the government on the issue
of damage to his on-farm infrastructure.
For these reasons, the court denies the plaintiffs’ motion to the extent that it seeks
reconsideration of the court’s independent contractor ruling.
CONCLUSION
The court denies the plaintiff’s motion for reconsideration.
DATED March 16, 2026.
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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