Hantavirus in Yosemite

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.

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6 Responses

  1. Jim Maloney says:

    Given the extreme cost and difficulty (maybe even impossibility) of preventing mice in a woodland park from nesting in cozy insulation materials conveniently placed at their disposal by humans, and given further the rarity of human deaths due to hantavirus, this scenario fairly screams for an application, in one fashion or another, of Learned Hand’s famous balancing approach from United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).

    I know it’s easy to say there’s no liability (yes, that is, in effect, what I’m saying) when you’re not the victim or a member of the victim’s family, and, truth be told, I’d rather see a lot of hantavirus-risky activity stopped. Much of its is unnecessary. Do we really need INSULATED cabins? More to the point here on Wrong Island, New York (and in other suburbs around the country), do we really need teams of underpaid “illegals” blowing pulverized rodent droppings into the air we breathe using noisy, oil-burning, portable two-stroke engines (i.e., “leafblowers”)? As I envision my neighbors who hire these “landscapers” (as for me, I use a rake) on vacation in Yosemite in their INSULATED cabins, notes from Koyaanisqatsi seem to play in my mind’s ear…

    So what’s next? Hantavirus disclaimers? (“If lawyers are lemmings…”)

  2. Jim Maloney says:

    Edits to the above:

    “Much of its is unnecessary” should be “Much of it is unnecessary.”

    “Wrong Island” probably should be “Long Island,” although I’m not sure…

    JMM

  3. Robert S says:

    I stayed at Curry Village on 8/26-8/27 in the Signature Tents.

    I’m not a legal scholar but I feel I can add some additional background to this event at Yosemite for your discussion.

    I think it’s easy to see the recent events at Yosemite as just a random act of nature – but consider the following:

    – we rented 3 cabins, 2 of the 3 had audible mice infestations where you could hear the mice making scratching noises in the walls

    – under the tents there was plentiful amounts of insulation that had been pulled out by the mice (visible evidence of infestation)

    – the exterior fabric on the tents was in various states of quality, our tents were ok but there have been plenty of pictures recently in the press showing ones that had tears large enough for mice to crawl into

    – we mentioned to the personnel there that we had mice, and I’m sure we weren’t the first

    – if you check online via yelp or tripadvisor (there may be other sites) people complain about mice infestations and feces going back to at least 2008. So this was a problem in Curry Village even BEFORE the signature tents were built in 2009.

    – multiple times over the last five years, Yosemite was warned about Hantavirus. In 2010 the California Department of Public Health outlined various actions they recommended the park to take. These included posting hantavirus warnings on EVERY rentable tent and in camping areas, and urged the control and removal of rodents in camping/sleeping areas.

    – on our arrival (Sunday 8/26, TEN days after the first announcement of the outbreak) we did NOT receive any warning on entering Yosemite, did NOT receive any warning on checking in to Curry Village, did NOT see any visible warnings posted throughout the camping village. On the day we left, we saw one small sign by the bathroom.

    And of course who knows what further communications between the key players (Yosemite park service administration, the concessioner, various public health agencies, etc.) we will uncover during discovery of what I think will be an inevitable law suit.

    So I’m sure that it should come as no surprise that those of us who were there feel there was a culture of negligence at play. We feel they had ample evidence that something was amiss. They failed their responsibility to their patrons.

    I hope justice will be served here -not just to punish the negligent parties, but to act as a deterrent to other establishments across the country.

  4. Jordan J. Paust says:

    Yes, the mice are everywhere. As a cabin owner on the east side of the Sierras (in Mono County), I suspect that those who tend to use the back country, campers, cabin owners, locals, etc. are generally on notice of the risk.

  5. Janet W says:

    I had a similar experience to Robert S. My family and I stayed in a signature cabin between Aug 23-26. We were not given any notification about hantavirus despite a conclusive link being made between these tents and the outbreak. My children were in that tent. No discussion of liability is complete without pointing the finger at the private company that owns and operates Curry Village lodging: Delaware North Company. They put profits over people and need to be held accountable.

  6. Janet W says:

    To add to my previous post: In trying to make sense of the relationship between the NPS and the concessionaires, I came across a comparative analysis of NPS, state park and international parks as they relate to several facets of contractual terms of concessionaires. One thing that I found very interesting and disturbing is that the NPS concessionaire contracts require the concessionaires to set aside a maintenance fund for repairs of buildings, etc. The state parks and the international parks also require concessionaires to set money aside for maintaining facilities. However, the NPS RETURNS the balance of the fund to the concessionaire at the end of the year giving the concessionaire NO incentive to make the necessary improvements!