UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ AMERICAN RELIABLE INSURANCE COMPANY, et al., │ Plaintiffs-Appellants/Cross-Appellees, │ > Nos. 22-6014/23-5439 │ v. │ │ UNITED STATES OF AMERICA, │ Defendant-Appellee/Cross-Appellant. │ ┘ Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. Nos. 19-cv-469; 19-cv-470; 19-cv-472; 19-cv-474; 19-cv-478—J. Ronnie Greer, District Judge.

Argued: January 31, 2024

Decided and Filed: June 28, 2024

Before: BOGGS, GILMAN, and NALBANDIAN, Circuit Judges.

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COUNSEL ARGUED: Jonathan J. Tofilon, GROTEFELD HOFFMANN LLP, Geneva, Illinois, for Appellants/Cross-Appellees. Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee/Cross-Appellant. ON BRIEF: Jonathan J. Tofilon, GROTEFELD HOFFMANN LLP, Geneva, Illinois, Mark S. Grotefeld, GROTEFELD HOFFMANN LLP, Austin, Texas, Matthew J. Evans, Daniel C. Headrick, KAY GRIFFIN, PLLC, Knoxville, Tennessee, Stephen J. Zralek, SPENCER FANE BONE MCALLESTER, Nashville, Tennessee, Evan B. Stephenson, SPENCER FANE LLP, Denver, Colorado, for Appellants/Cross-Appellees. Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee/Cross-Appellant.

BOGGS, J., delivered the opinion of the court in which GILMAN and NALBANDIAN, JJ., joined in different parts. GILMAN, J. (pp. 25–28), delivered a separate opinion concurring in part and dissenting in part. NALBANDIAN, J. (pp. 29–37), also delivered a separate opinion concurring in part and dissenting in part. Nos. 22-6014/23-5439 Am. Reliable Ins. Co., et al. v. United States Page 2

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OPINION _________________

BOGGS, Circuit Judge. This case arises from a 2016 catastrophic wildfire in the Great Smoky Mountains National Park in Eastern Tennessee that spread into the City of Gatlinburg and Sevier County, Tennessee, resulting in the destruction of over 2,500 structures and the death of 14 people. Appellant insurance companies paid claims to policy holders and then filed claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), against the National Park Service (NPS), alleging negligence for failure to follow multiple mandatory fire-management protocols in three major respects and for the failure to issue mandatory warnings to the public.

The government filed a motion, under Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss for lack of subject-matter jurisdiction, on grounds that it was immune from suit under the discretionary-function exception to the FTCA. 28 U.S.C. § 2680(a). The district court granted the motion on all three claims relating to fire-management protocols, but denied the motion on claims relating to the duty to warn. The insurance companies appealed, and the government cross-appealed.

I. Factual Background

2016 was a year of unusual drought in the Great Smoky Mountains National Park (the Park). On Wednesday, the day before Thanksgiving, a small vegetation fire (the Fire)1 was spotted com