                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

DANIEL R. AUTERY, husband and        
the marital community composed
thereof; RITA ANN AUTERY, wife
and the marital community
composed thereof; SUSAN AUTERY,
A SINGLE WOMAN; JOSEPH
BALMELLI, husband and the marital
community composed thereof;
DONNA BALMELLI, wife and the
marital community composed
thereof; VICTOR BELOUSOV,
husband and the marital
community composed thereof;               No. 04-35105
GALINA BELOUSOV, wife and the
marital community composed                 D.C. No.
                                         CV 02-05113-EFS
thereof; DANIEL BELOUSOV, their
minor children; DENNIE BELOUSOV,            OPINION
their minor children; BENTON
COUNTY, a political subdivision of
Washington State; BENTON COUNTY
PUD, a municipal corporation;
THOMAS M. BRUN, husband and the
marital community composed
thereof; KAREN M. BRUN, wife and
the marital community composed
thereof; CHARLOTTE BURRUS, a
single woman; KELVIN CHURCH,
husband and the marital
community composed thereof;
                                     


                          12991
12992             AUTERY v. UNITED STATES


TERESA BEVAN-CHURCH, wife and         
the marital community composed
thereof, as Personal Representative
for the Estate of Abigail Kimberly
Grace Bevan-Church; ALEXANDREW
BEVAN-CHURCH, their minor
children; ALEXANDREA BEVAN-
CHURCH, their minor children;
SAMUEL BEVAN-CHURCH, their
minor children; GEORGE BEVAN-
CHURCH, their minor children;
SUSAN BEVAN-CHURCH, their minor
children; KIMBERLY BEVAN-
CHURCH, their minor children;
ABIGAIL KIMBERLY GRACE BEVAN-
CHURCH, the Estate of, their minor
child; THAD COLEMAN, a single         
man; CARL W. CRAWFORD, husband
and the marital community
composed thereof; MYRTLE F.
CRAWFORD, wife and the marital
community composed thereof;
ELOISE M. DEVINE, a single
woman; SARAH DURBIN, a single
woman; KENNETH ELLIOTT, husband
and the marital community
composed thereof; CATHERINE
ELLIOTT, wife and the marital
community composed thereof;
CHARLES EVANS, husband and the
marital community composed
thereof; MAXINE EVANS,
                                      
                 AUTERY v. UNITED STATES   12993


wife and the marital community      
composed thereof; CASSANDRA
EVANS, a single woman; JARED
EVANS, a single man; JOHN EVANS,
a single man; RANDLE FELTS, a
single man; PHILLIP HARPER,
husband and the marital
community composed thereof;
FLOY HARPER, wife and the marital
community composed thereof;
RICHARD HOWARD, husband and the
marital community composed
thereof; VIRGINIA HOWARD, wife
and the marital community
composed thereof; SHANNON           
HOWARD, a single woman; MARK
HUNTSMAN, husband and the
marital community composed
thereof; MICHELE HUNTSMAN, wife
and the marital community
composed thereof; MICHAEL
HUNTSMAN, their minor child;
CARRIE HUNTSMAN, a single
woman; WILLIAM ISLEY, husband
and the marital community
composed thereof; CONNIE ISLEY,
wife and the marital community
composed thereof; JOEY ISLEY,
their minor son; MARLA SHAFFER,
                                    
12994            AUTERY v. UNITED STATES


a single woman; DONALD W.           
KRUGER, husband and the marital
community composed thereof;
LENORE L. KRUGER, wife and the
marital community composed
thereof; TIMOTHY LACY, husband
and the marital community
composed thereof; MARTHA LACY,
wife and the marital community
composed thereof; JOSHUA LACY,
their minor children; LAURA LACY,
their minor children; JOHN D.
LEONARD, husband and the marital
community composed thereof;
JUDY LEONARD, wife and the
marital community composed          
thereof; KEVIN LEONARD, a single
man; OLE LEONARD, husband and
the marital community composed
thereof; PAT LEONARD, wife and
the marital community composed
thereof; ERIC A. MCELROY,
husband and marital community
composed thereof; NANCY
MCELROY, wife and the marital
community composed thereof;
CHRISTOPHER MCELROY, their minor
children; ERIN MCELROY, their
minor children; BRENDAN
MCELROY, a single man;
                                    
                  AUTERY v. UNITED STATES   12995


EDWARD NEASHAM, a single man;       
IRENE NEASHAM, a married woman
aka Irene Peck; IRENE PECK, a
married woman; EARL NORMAN,
husband and the marital
community composed thereof;
GAYLYNN NORMAN, wife and the
marital community composed
thereof; CORINNA NORMAN, their
minor children; KRISTA NORMAN,
their minor children; JILLLYN
NORMAN, their minor children;
HANNAH NORMAN, their minor
children; CODY NORMAN, their
minor children; KRISTIN PECK, a
single woman; MARTY ALLEN
PECK, a single man; BRAD ROACH,     
husband and the marital
community composed thereof;
CARLA ROACH, wife and the
marital community composed
thereof; ALYX BURNHAM, husband
and the marital community
composed thereof; RACHEL
BURNHAM-ROACH, wife and the
marital community composed
thereof; JERRY ROSE, husband and
the marital community composed
thereof; PATRICIA ROSE, wife and
the marital community composed
thereof; JACK ROSE, a single man;
NICHOLE ROSE, a single woman;
RICHARD ROSE, a single man;
                                    
12996             AUTERY v. UNITED STATES


WILLIAM A. SMITH, a single man;       
DUSTIN SMITH, his minor children;
JEREMY SMITH, his minor children;
CHARLES SMITH, his minor
children; VICTORIA SMITH, his
minor children; MICHAEL P. STORM,
husband and the marital
community composed thereof;
KATHRYN STORM, wife and the
marital community composed
thereof; MATTHEW STORM, their
minor child; SEAN STORM, a single
man; RAYMOND WEAVER, JR.,
husband and the marital
community composed thereof;
DONZEL WEAVER, wife and the
marital community composed
thereof; JOHN M. ZACHARA, a           
single man; PETER D. ZACHARA, his
minor child; AMY O. ZACHARA, a
single woman; HEATHER R.
ZACHARA, a single woman; DILLON
M. ZACHARA, a single man; STATE
FARM INSURANCE COMPANY, as
subrogee for its insureds; ELMER
AINSWORTH; MILDRED AINSWORTH;
W.W. BRADHAM; DOLORES P.
BRADHAM; LINDA R. CLEMENSEN;
WILLIAM T. ROBERTS; MUTUAL OF
ENUMCLAW INSURANCE COMPANY, as
subrogee for its insureds; JOHN G.
COOKE; P. ANTOINETTE COOKE;
FOREMOST INSURANCE COMPANY, as
subrogee for its insured; D. DAVIS;
                                      
                    AUTERY v. UNITED STATES   12997


RICKY HUCKFLDT; CATHY L.                 
HUCKFELDT; PEMCO INSURANCE
COMPANY, as subrogee for its
insureds; WALTER LAIS; BEVERLY
LAIS; JOHN NOVAK; MARGARET
NOVAK; CLIFFORD PENDELL; MARIE
PENDELL; JIMMIE ROSS; ROXIE ROSS;
TERESA SMITH; ERNEST FLOYD;
RICHARD E. WELCH; NEIL D.
ZIMMERMAN; JANE THOMAS; SANDA
PIERCE, individually and as
Personal Representative of the
Estate of Robert Pierce; the estate
of ROBERT PIERCE; ROBERT RANCH,
a Washington partnership; BRAD
HOWARD, a single man; KEVIN
LONG, a single man; LLOYDS OF
LONDON, Interested Underwriters
                                         
at, as subrogee for its insured;
METROPOLITAN MORTGAGE, and all
other persons similarly situated as
a pendent class suffering damage
and/or injuries; STATE OF
WASHINGTON, by and through
Daniel R. Autrey,
ET UX., ET AL., as private attorney
generals, and all other persons
similarly situated as a pendent
class suffering damage and/or
insuries; DEMINA KLAVDIYA;
LYUDMILA BELOUSOVA,
                Plaintiffs-Appellants,
                  v.
                                         
12998                 AUTERY v. UNITED STATES


UNITED STATES OF AMERICA;                  
DEPARTMENT OF ENERGY;
DEPARTMENT OF THE INTERIOR;
STATE OF WASHINGTON, by and
through Daniel R. Autrey, ET UX.,
ET AL., as private attorney generals,
                                           
and all other persons similarly
situated as a pendent class
suffering damages and/or injuries,
               Defendants-Appellees.
                                           
         Appeal from the United States District Court
           for the Eastern District of Washington
          Edward F. Shea, District Judge, Presiding

                   Argued and Submitted
           February 18, 2005—Seattle, Washington

                    Filed September 12, 2005

      Before: Betty Binns Fletcher, Ronald M. Gould,
    Circuit Judges, and Samuel P. King, District Judge.*

                      Opinion by Judge King




  *Honorable Samuel P. King, Senior United States District Judge for the
District of Hawaii, sitting by designation.
13000            AUTERY v. UNITED STATES


                       COUNSEL

Robert A. Dunn, Spokane, Washington; Thomas A. Wolfe,
Seattle, Washington; and William J. Flynn, Jr., Kennewick,
Washington, for the plaintiffs-appellants.
                   AUTERY v. UNITED STATES               13001
Rolf H. Tangvald, Assistant United States Attorney, Spokane,
Washington, for the defendants-appellees.


                         OPINION

KING, District Judge:

   Numerous individual and corporate victims of a large wild-
fire in southeastern Washington State appeal the district
court’s dismissal for lack of subject matter jurisdiction of
their suit brought under the Federal Tort Claims Act (FTCA)
28 U.S.C. §§ 1346(b), 2671-80. The suit sought substantial
damages, alleging, among other things, negligence against the
United States in not maintaining firebreaks. The district court
dismissed based upon the FTCA’s independent-contractor and
discretionary-function exceptions.

   We agree with the district court that relevant decisions
regarding fire prevention were encompassed in the govern-
ment’s contracts with Fluor Daniel Hanford, Inc., a.k.a. Fluor
Hanford, Inc., (Fluor) and Fluor’s corresponding subcontract
with DynCorp Tri-Cities Services, Inc. (DynCorp). The action
is therefore barred by the independent-contractor exception to
the FTCA. See 28 U.S.C. § 2671 (“As used [in the FTCA] the
term ‘Federal agency’ . . . does not include any contractor
with the United States”). Because we affirm on that ground,
we do not reach whether the suit is also barred by the
discretionary-function exception in 28 U.S.C. § 2680(a).

               I. FACTUAL BACKGROUND

   The suit arises from the 24 Command Wildland Fire (a.k.a.
the 24 Command Fire), which burned from June 27 to July 1,
2000. The wildfire was triggered by an automobile crash on
Washington State Route 24 (SR-24). SR-24 is located on an
easement over federal property granted by the United States
13002                  AUTERY v. UNITED STATES
to the State of Washington. The wildfire eventually charred
some 164,000 acres of public and private lands on and near
the United States Department of Energy’s (DOE’s) Hanford
Site. The Hanford Site encompasses over 560 square miles of
government property in the southeastern part of Washington
in Benton County near Richland.

   The Hanford Site includes within it the 120-square-mile
Fitzner-Eberhardt Arid Lands Ecology Reserve (ALE Reserve
or ALE). The ALE Reserve is an ecologically sensitive area
with significant natural and cultural resources. The DOE
transferred, or began transferring, management of the ALE to
the United States Fish and Wildlife Service (FWS) in June of
1997. The terms of the transfer are set forth in a June 20,
1997, Permit and Memorandum of Understanding (MOU)
between the DOE and FWS.

   Specific control of the ALE is important here because the
fire started on the ALE — or, more particularly, on SR-24 —
and quickly spread to the ALE. Plaintiffs’ primary FTCA
claim is that the United States (either the DOE or the FWS)
negligently maintained firebreaks near SR-24 along the ALE
and such negligence caused fire to spread from SR-24 onto
the ALE and ultimately to Plaintiffs’ properties.1

   The DOE had a large (over $2.8 billion, as of August 27,
1999) contract with Fluor for “planning, managing, integrat-
ing, operating and implementing” a wide range of activities at
the Hanford Site. In turn, Fluor subcontracted with DynCorp,
to provide certain services, including “Emergency Services.”
  1
    Plaintiffs have abandoned claims regarding negligence in the actual
fire fighting or fire suppression efforts. The district court held such claims
barred by the independent-contractor and discretionary-function exemp-
tions, and no argument was made on appeal that the decision as to fire
suppression or fire fighting was erroneous. See Nilsson, Robbins, et al. v.
Louisiana Hydrolec, 854 F.2d 1538, 1548 (9th Cir. 1988) (stating that
issues not raised in opening brief are waived). This appeal focuses on fire
prevention responsibilities.
                      AUTERY v. UNITED STATES          13003
The subcontract was effective October 1, 1996, and was mod-
ified effective March 27, 2000 (although there apparently has
been a similar contractual relationship from at least 1984).
The subcontract defines “Emergency Services” as:

      1.   Fire Protection Engineering.

      2. Fire Department Emergency Response, includ-
      ing:

           a.   Fire Suppression.

           b.   Rescue.

           c.   Emergency Medical/Ambulance.

           d.   Hazardous Material Spill Response.

           e.   Incident Command.

      3. Fire Protection System Inspection and Mainte-
      nance.

      4.   Fire Prevention.

  The Hanford Fire Department (HFD) was a subsidiary of
DynCorp during the relevant period.2 Thus, HFD is a private
entity and is the subcontractor retained to provide “Emer-
gency Services.” HFD’s fire chief at relevant times was Don
Good.

   The government argued that the plain terms of these con-
tracts established that the DOE contracted with Fluor, which
subcontracted with the HFD, to provide fire prevention and
fire protection on the Hanford Site, including the ALE.
Accordingly, the government contended (and the district court
  2
   HFD later became part of Fluor itself.
13004              AUTERY v. UNITED STATES
agreed) that the independent-contractor exception to the
FTCA immunizes the United States from the alleged negli-
gence that could have contributed to the 24 Command Fire.

        A.   The Contractual and Management Details

  The Fluor contract with the DOE provided in pertinent part:

    [Fluor] shall provide technical and administrative
    emergency management services to Hanford Emer-
    gency Preparedness. The work scope includes main-
    taining the Hanford Emergency Management Plan
    and Implementing Procedures, managing the Han-
    ford Site Emergency Exercise Program, maintaining
    the site emergency response organization and facili-
    ties, training site emergency response organization
    members. . . .

    [Fluor] shall provide an emergency response capabil-
    ity for facilities under its control that implements the
    Hanford Emergency Management Plan . . . as modi-
    fied from time to time.

   In turn, the subcontract between Fluor and HFD provided
that HFD would be responsible for “Emergency Services.” As
quoted earlier, “Emergency Services” include “Fire Protection
Engineering” and “Fire Prevention.” That is, unless the con-
tract was somehow modified later, HFD was required by con-
tract to provide fire protection and prevention to all of the
Hanford Site.

   Hence, we look to the terms and circumstances of the MOU
by which DOE transferred (or began transferring) manage-
ment of the ALE to FWS in June of 1997. The MOU did not
transfer actual title of the ALE to FWS; the ALE was still part
of Hanford and was still owned by DOE. The MOU dealt with
management responsibility. Section 4.3 of the MOU pro-
vided:
                  AUTERY v. UNITED STATES              13005
    FWS will be responsible for coordination of the law
    enforcement, fire protection, emergency prepared-
    ness, and emergency medical services programs and
    general maintenance and administration for the ALE.
    FWS will coordinate with the appropriate DOE-RL
    POC [Department of Energy Richland Point of Con-
    tact, who was Craig Christenson] as identified in
    Attachment 4 of the Permit, for fire protection and
    emergency preparedness issues and maintenance and
    administrative issues of the ALE.

Section 5.5 provided:

    Until FWS has developed its own approved manage-
    ment plan and has upgraded its own fire protection
    capabilities for the ALE, the appropriate DOE[-]RL
    POC as identified in Attachment 4 of the Permit, is
    responsible for providing FWS fire protection,
    including initial attack and incident management, for
    ALE structures and wildlands, on a cost reimburs-
    able basis from FWS. (Emphasis added).

   There was no such “approved management plan” when the
wildfire occurred in June 2000, meaning that at that time —
at least as between DOE and FWS — DOE was still “respon-
sible for providing FWS fire protection, including initial
attack and incident management, for ALE structures and wild-
lands, on a cost reimbursable basis from FWS.” The govern-
ment contends that such responsibilities were ongoing as part
of the Fluor contract, and related subcontract with HFD.

   The MOU required FWS “to manage the ALE consistent
with the existing Arid Lands Ecology (ALE) Facility Manage-
ment Plan . . . dated February 1993, prepared by Pacific
Northwest National Laboratory [a contractor a.k.a. Battelle
Memorial Institute] and approved by DOE-RL.” In turn, sec-
tion 4.2.7 of the 1993 ALE Facility Management Plan con-
tained the following language regarding “Fire Management”:
13006              AUTERY v. UNITED STATES
    Policy: Minimize the potential for human-caused
    fires on the ALE by maintaining fire breaks along
    site boundaries to limit the passage of fires onto or
    off ALE, and if fires should occur, fighting fires
    along existing fire breaks, roadways, and near build-
    ings.

    Implementation: All fire fighting is the responsibil-
    ity of the Hanford Site Fire Department. The ALE
    facility manager will periodically review the fire pre-
    vention and fire fighting plans with the Hanford Site
    fire protection personnel, ensuring that facility users
    take appropriate steps to minimize the possibility of
    causing a fire and advising facility users of actions
    that they should take if they encounter a fire while
    in the field. Procedures for establishing firebreaks
    and protecting them from wind erosion need to be
    established.

   The 1993 ALE Facility Management Plan contains a dis-
claimer indicating “the views and opinions of [Battelle]
expressed herein do not necessarily state or reflect those of
the United States Government or any agency thereof,”
although the plan was “approved” by the DOE. The document
also indicates that “[t]he DOE retains final authority over all
decisions, policies, and operations regarding ALE Site man-
agement.” It states that “[t]he ALE facility manager will use
this plan to guide decisions on managing the [ALE].”

   After the June 20, 1997, MOU was signed, the DOE noti-
fied Fluor of the management transfer and indicated that Fluor
was “to continue to provide fire protection services . . . to
ALE.” A letter dated July 17, 1997, from the DOE to Fluor
stated:

    The MOU requires fire protection services to con-
    tinue to be provided to ALE until FWS has devel-
    oped its own approved management plan, and
                   AUTERY v. UNITED STATES              13007
    upgraded its own fire protection capabilities for the
    ALE.

    Effective immediately you [Fluor] are directed to
    continue to provide fire protection services from the
    Hanford Fire Department (HFD) to ALE on a cost
    reimbursable basis to FWS, and coordinate planning
    activities directly with the FWS[.] (Emphasis added).

   On October 6, 1997, Fluor in turn officially notified Dyn-
Corp (and HFD) of the DOE’s July 17, 1997, letter. Fluor’s
letter to DynCorp provided:

    The referenced letter [of July 17, 1997] (attached)
    provides direction for the Hanford Fire Department
    to continue to provide fire protection services to the
    Arid Lands Ecology Reserve on a cost reimbursable
    basis to the U.S. Fish and Wildlife Service. You are
    requested to proceed with implementation of this
    request and to notify this office when the arrange-
    ments are completed. (Emphasis added).

  Also, in September of 1998, FWS entered into a direct
agreement with HFD regarding fire protection of the ALE. A
September 14, 1998, “Cooperative Agreement” provided:

    1.   Purpose

    The Cooperative Agreement is entered into between
    [FWS] and [HFD] to providing [sic] fire protection
    and wildfire suppression for the [FWS] managed
    lands located within the Hanford Site boundaries in
    Benton County, Washington [i.e., the ALE].

    ....

    3.   Scope
13008              AUTERY v. UNITED STATES
         A. The HFD agrees to:

           1.   Provide first response fire fighting
                personnel and equipment (units) as
                available for fires within the bounda-
                ries of [the ALE];

           2.   Provide ongoing fire fighting, medi-
                cal, and overhead team services as
                available, and at the request of
                [FWS];

           ....

           4.   Notify [FWS] as immediately when
                a fire occurs and HFD responds to a
                fire on ALE. . . .

           5.   Avoid the use of tractors, graders
                and all other ground surface
                breaking/modifying equipment with-
                out prior approval of [FWS], except
                when the use of such equipment is
                essential to protect life, private prop-
                erty, or prevent the spread of fire to
                the Hanford Site east of Highway
                240.

   As discussed later, the particular language of the “Purpose”
and “Scope” sections is important in analyzing whether the
Cooperative Agreement might have changed any of the con-
tractual responsibilities.

   In regards to HFD’s duties, HFD Fire Chief Don Good
stated in a declaration that “the HFD has the authority,
responsibility and discretion to implement HFD’s fire fighting
and fire prevention management activities on the ALE.” In his
deposition he testified in pertinent part as follows:
                   AUTERY v. UNITED STATES               13009
    Q. [Plaintiffs’ counsel]: . . . you’re referring to
    page 4.7, section 4.2.7 [of the 1993 ALE Facility
    Management Report]? . . . . And under 4.2.7, can
    you tell me where in 4.2.7 it says that HFD has the
    authority, responsibility, and discretion to implement
    firefighting and fire prevention management activi-
    ties?

    A. [Good]: Okay. It’s on page 4.7, second para-
    graph under Implementation: All firefighting is the
    responsibility of the Hanford Site Fire Department.

         ....

    Q. Well, that talks about firefighting though. Your
    statement goes on to talk about fire prevention man-
    agement activities. Where in 4.2.7 does it say that?
    [Emphasis in original.]

    A. It doesn’t say that in that statement, but that’s
    all inclusive. Firefighting, fire prevention, fire pro-
    tection is all inclusive and one’s part of the other
    one. It’s all inclusive.

         ....

    Q. . . . . As a term of art in your profession is fire
    prevention different than the term firefighting?

    A.    Yes.

    Q. Okay. And is the term in your profession fire
    prevention different than the term fire protection?

    A.    Yes.

Later, Good was asked about the scope of HFD’s agreement
for fire services:
13010                AUTERY v. UNITED STATES
    Q. Do you know whether DynCorp [HFD] has an
    agreement with FWS or DOE for reimbursement for
    fire services rendered?

         ....

    A.    Yes.

    Q.    Okay. And what’s your understanding?

    A. There’s a Cooperative Agreement that says if
    we provide firefighting for U.S. Fish and Wildlife,
    they have to reimburse costs.

         ....

    Q.    For firefighting?

    A.    Correct.

    Q.    How about fire prevention?

    A. We don’t do any fire prevention for U.S. Fish
    and Wildlife.

    Q.    Okay. And how about fire protection?

    A. We don’t do any fire protection for U.S. Fish
    and Wildlife.

         ....

    Q. . . . Does the HFD have an agreement with DOE
    for firefighting services?

    A. Through our contract we have an agreement.
    There is no agreement with HFD and DOE. We have
    an agreement with the contractor that we work for
                    AUTERY v. UNITED STATES             13011
    who has an agreement and contract with Department
    of Energy.

         ....

    Q. . . . So in 2000, as best you understand it, there
    was no contract between DOE and DynCorp for pro-
    viding fire prevention services?

    A.     That’s correct.

    Q.     Or fire protection services?

    A.     That’s correct.

    Q. Okay. And in 2000, if I understand you cor-
    rectly, HFD did no fire prevention for Fish and
    Wildlife Service?

    A.     That is correct.

    Q. And did no fire protection for Fish and Wildlife
    Service?

    A.     That is correct.

    Q. Okay. So the reimbursement that HFD would
    be receiving would be for firefighting?

    A.     And managing the fire, yes.

  B.     Maintenance of Firebreaks on the ALE near SR-24

   Hanford and the ALE had a history of wildfires. In particu-
lar, a large (200,000 acre) fire, the Hanford Range Fire,
occurred in 1984. That wildfire led to much discussion and
direction regarding establishing and maintaining firebreaks
along roadways at the Hanford Site. Since 1985, and prior to
13012               AUTERY v. UNITED STATES
the 24 Command Fire, maintenance of firebreaks along ALE
roadways (and SR-24 in particular) was complicated by a
number of factors.

  SR-24 itself is a Washington State roadway. The DOE
granted Washington an easement in 1985 for the road. The
easement provided that “The [State of Washington] shall
maintain the property in good condition and make necessary
repairs.”

   Over the years, firebreak maintenance near SR-24 on ALE
borders was done in several ways: (1) “discing,” which
involved “turning over the earth using machinery to break up
vegetation”; (2) spraying herbicide; (3) mowing vegetation;
and (4) performing controlled burns of vegetation and vagrant
tumbleweeds. Discing, however, creates dust.3 In 1994, Wash-
ington State or Benton County clean air authorities notified
HFD and the DOE that, as a matter of state law, landowners
must take reasonable precautions to prevent “fugitive dust.”
Thus, in 1995 discing on the ALE stopped. Rather, according
to a 1995 letter from HFD Fire Chief Don Good to the DOE,
firebreaks were created between the roads and ALE property
by applying herbicide on the easement:

      A plan was developed wherein site services coopera-
      tively clear the right-of-way between the highway
      fence and the road shoulder, after which the state
      will keep this additional space mowed. The existing
      firebreaks, which are now crusted over, will be left
      to develop ground cover. A fire break will then be
      created between the road and the fence which
      matches or exceeds the distance of the old fire break.
      The state will continue to spray herbicides about six
      to eight feet on each side of the hard surface roadbed
      and the short grass will keep the dust under control.
  3
   Bulldozing also was discussed before 1984, but it also apparently
creates its own set of environmental problems.
                   AUTERY v. UNITED STATES              13013
   Washington State or Benton County also regulates burning
of tumbleweeds, and thus the last “controlled burn” before the
24 Command Wildfire occurred in 1995. And so, the record
indicates that after 1995 — and before the 1997 MOU trans-
ferring management from the DOE to FWS — neither the
DOE nor FWS nor HFD actually “maintained” firebreaks (at
least by discing or by controlled burns) on the ALE near SR-
24. Such maintenance was done, if at all, by the State on its
easement. Maintenance, apparently by the State, consisted of
spraying herbicides, perhaps some controlled burning (until
2000), and mowing vegetation.

   These limitations, whether real or self-imposed, on fire-
break maintenance near state roads were apparently a source
of frustration for some in the DOE and HFD. Indeed, in an
internal email of May 2000 — only a month before the 24
Command Wildfire — Craig Christenson, the DOE’s fire pre-
vention engineer for Hanford, wrote the following prescient
comment when asked about a controlled burning policy at
Hanford:

    . . . We have not done any control burns in the past
    few years due to environmentalist concerns and
    enforcement actions given down by our Local
    [County] (Benton County) Clean Air Authority. We
    can’t even cut fire breaks anymore! All we can do is
    use [sprayed] on herbicide to kill off weeds in their
    early growth and that has a very limited effect. Since
    we have not been able to manage (do effective
    burns) the wildland fuel growth along natural and
    man-made fire breaks (like roadways), I predict we
    will ultimately have a very large wildland fire in the
    near term future similar in size to the 1984 Hanford
    Range Fire.

  The record also indicates that a moratorium was placed in
June of 2000 restricting or halting the use of “controlled
burns” on DOE lands, after such a prescribed burn led to a
13014                    AUTERY v. UNITED STATES
large uncontrolled wildfire in the southwestern United States.
The record presumably refers to an uncontrolled wildfire in
Los Alamos, New Mexico, that burned in the Spring of 2000.

                    C.    Post-Wildfire Documents

   After the 24 Command Fire, both the FWS and DOE con-
ducted internal investigations and issued detailed reports4 to
“evaluate the actions taken to manage the wildfire, present
findings, and offer constructive recommendations,” as well as
to “provid[e] information for use in improving DOE response
to fire incidents across the agency’s national complex.”

   The reports contain disclaimers regarding their use.5 They
were obviously prepared for remedial purposes. But they do
make some conclusions that Plaintiffs point to as some indica-
tion of negligence and responsibility. The FWS Report made
a general finding that “[t]here were not adequate agreements
or operating plans in place to enhance safe, effective, and effi-
cient fire protection.” It found:

       Agreements were unclear or were inadequate. Local
       fire districts appear to believe that [FWS] philosophy
       and policy restrict the use of certain tactics and that
       Federal wildland fire suppression activities would
       cease at the Federal land boundary. Both of these
       perceptions were unfounded based on review of
  4
    An “FWS Interagency Fire Team Report of September 2000” and a
“DOE Type B Accident Investigation Report of October 2000.”
  5
    The DOE Report states:
      The discussion of fact, as determined by the [Accident Investiga-
      tion] Board, and the views expressed in the report do not assume
      and are not intended to establish the existence of any duty at law
      on the part of the U.S. Government, its employees or agents, con-
      tractors, their employees or agents, or subcontractors at any tier,
      or any other party.
      This report neither determines nor implies liability.
                       AUTERY v. UNITED STATES                       13015
     existing policy, current agreements, and actions
     taken during the incident.

The FWS report thus could be alluding to the reasons for the
lack of maintenance of SR-24 firebreaks (i.e., HFD leaving
matters to the State after 1995 as a result of the creation of
“fugitive dust”).

  The DOE Report was more specific. It indicates, among
other things, that

     the Board found that the lack of maintenance of
     defensible firebreaks along state highways allowed
     the fire to spread quickly onto the ALE Reserve. The
     Board found that RL [Richland DOE office], ORP
     [DOE Office of River Protection], and the contrac-
     tors need to engage and coordinate with local clean
     air authorities, state regulators, the DOE-HQ Office
     of Environmental Health (EH), and the WSDOT
     [State Department of Transportation] to evaluate the
     most effective means of establishing defensible
     space along state right-of-way shoulders between
     State Routes 24 and 240 and the DOE fenceline.

It made the following analysis regarding fire barriers:

     While [a precut fire break between SR 24 and the
     DOE fenceline] was last time in place in 1995, it was
     not maintained along the entire lengths of SR 24, and
     vegetation reseeded enough to yield readily available
     fuel. . . . Maintenance of this barrier may have pre-
     vented the fire that started on the highway from
     igniting the natural vegetation on the ALE Reserve.6
   6
     HFD Fire Chief Good disagreed with the conclusion, indicating that it
was speculation. He testified in his deposition that “there’s no way to tell
whether that fire would have been stopped by that firebreak being main-
tained or not being maintained. . . . I’ve seen fire jump the [Columbia]
River, I’ve seen fire jump the Yakima River, I’ve seen fire jump four-lane
highways.” His observations may well be sound, but this litigation never
reached a stage to decide issues regarding causation.
13016              AUTERY v. UNITED STATES
  Plaintiffs point to these reports as indicating that the DOE
or FWS (or both) was negligent in failing to maintain fire-
breaks around SR-24.

   As a further indication of DOE control or responsibility for
firebreak maintenance around SR-24, Plaintiffs also point to
an easement granted shortly after the 24 Command Fire (in
November of 2000) by DOE to Touch America for fiber optic
cables. That easement requires Touch America to conduct
certain “fire stabilization measures:”

    [Touch America] agrees to complete the following
    fire stabilization measures along State Highway 24
    . . . 1) smooth soil surface where disturbed by the
    installation of fiber optic conduit bundle, 2) mow
    vegetation on both sides of State Highway 24 from
    fence to shoulder of road, 3) apply a one time appli-
    cation of herbicides on both sides of State Highway
    24 from fence to shoulder of road. . . . The type of
    herbicides and method of application will be deter-
    mined by DOE. [Touch America] agrees to contact
    the DOE to coordinate installation of the fiber optic
    conduit bundle and fire stabilization measures.

According to Don Good, the HFD was not involved in negoti-
ating any aspect of that easement.

   Finally, as another alleged indicator of DOE control of the
firebreaks near SR-24, Plaintiffs point to a post-wildfire inter-
nal DOE memorandum discussing fire recovery actions and
plans. The memorandum discusses firebreaks along SR-240
and SR-24, indicating that “[t]he firebreaks [on SR-240] have
been neglected since 1995 contributing (in the opinion of
some investigators) to the most recent fire spread.” It goes on
to indicate an “immediate plan” of herbicide applications. As
for SR-24, the memorandum states “the 32 miles of SR 24
represents a bigger problem at this time. Mostly unburned, but
also neglected, it accommodates a heavy fuel load in both our
                     AUTERY v. UNITED STATES               13017
[DOE] view and in the view of [FWS].” The DOE memoran-
dum recommends:

    1. . . . that the Firebreaks be maintained annually
    and in the future budgeted properly by the Landlord
    organization. . . . As long as the U.S. DOE has
    responsibility for SR 240 and SR 24, this will
    amount to about $400,000 to $500,000 per year. . . .

    2. The US DOE needs to seriously consider divest-
    ing itself of SR 240 and SR 24 while still ensuring
    that the Firebreaks are properly maintained[.]

   Plaintiffs essentially contend that the memorandum indi-
cates that DOE (not the HFD as indicated in the relevant con-
tracts) still had substantial responsibility for SR-24 firebreak
maintenance, and that such maintenance was not solely con-
tractor responsibility.

               II.   PROCEDURAL HISTORY

   Plaintiffs filed an administrative claim on June 3, 2002,
with the DOE and FWS, seeking over $100 million in dam-
ages from the wildfire. Neither agency issued a final disposi-
tion of the claim within six months. See 28 U.S.C. § 2675(a)
(“The failure of an agency to make final disposition of a claim
within six months after it is filed shall . . . be deemed a final
denial of the claim”). Accordingly, on December 23, 2002,
Plaintiffs filed suit against the United States under the FTCA.
The Plaintiffs include many individuals, some insurance com-
panies with subrogated claims, a neighboring ranch, as well
as Benton County.

   On January 15, 2004, the district court granted the United
States’ motion to dismiss under Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction, or in the alternative, for
summary judgment. The district court applied summary judg-
ment standards and found as a matter of law that the
13018              AUTERY v. UNITED STATES
independent-contractor exception barred suit. See 28 U.S.C.
§ 2671 (“As used [in the FTCA] the term ‘Federal agency’ . . .
does not include any contractor with the United States”);
United States v. Orleans, 425 U.S. 807 (1976). The court also
found, in the alternative, that the discretionary-function
exception under 28 U.S.C. § 2680(a) barred the suit.

   Given those rulings, the district court did not need to rule
on pending questions regarding whether the United States had
a duty under state law to undertake fire prevention duties. It
also did not rule on questions involving proximate causation
(presumably whether a lack of maintenance was a proximate
cause of Plaintiffs’ damages).

   Judgment was entered in favor of the United States and a
timely notice of appeal followed.

                       III.   DISCUSSION

                  A.     Standards of Review

   The court reviews de novo subject matter jurisdiction deter-
minations under the FTCA. Bramwell v. United States Bureau
of Prisons, 348 F.3d 804, 806 (9th Cir. 2003). “The district
court’s findings of fact relevant to its determination of subject
matter jurisdiction are reviewed for clear error.” Ass’n of Am.
Med. Colls. v. United States, 217 F.3d 770, 778 (9th Cir.
2000).

   With a 12(b)(1) motion, a court may weigh the evidence to
determine whether it has jurisdiction. See Roberts v. Corro-
thers, 812 F.2d 1173, 1177 (9th Cir. 1987). However, where
— as is the case here — “the jurisdictional issue and substan-
tive claims are so intertwined that resolution of the jurisdic-
tional question is dependent on factual issues going to the
merits, the district court should employ the standard applica-
ble to a motion for summary judgment.” Rosales v. United
States, 824 F.2d 799, 803 (9th Cir. 1987).
                   AUTERY v. UNITED STATES                 13019
   “This court’s review is governed by the same standard used
by the trial court under Federal Rule of Civil Procedure
56(c).” Suzuki Motor Corp. v. Consumers Union of United
States, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003) (en banc)
(citation omitted). The Court “must therefore determine,
viewing the evidence in the light most favorable to the non-
moving party, whether there are any genuine issues of mate-
rial fact and whether the district court correctly applied the
relevant substantive law.” Id. at 1131-32 (citation omitted).
“The court must not weigh the evidence or determine the truth
of the matters asserted but must only determine whether there
is a genuine issue for trial.” Summers v. A. Teichert & Son,
Inc., 127 F.3d 1150, 1152 (9th Cir. 1997).

         B.   The Independent-Contractor Exception

   [1] Under the FTCA’s limited waiver of sovereign immu-
nity, the United States is liable to the same extent as a private
party for certain torts of federal employees acting within the
scope of their employment, “in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1). See also 28 U.S.C. § 2674 (“the law of the place
where the act or omission complained of occurred”). The
FTCA includes officers and employees of “any federal agen-
cy” but expressly excludes “any contractor with the United
States.” 28 U.S.C. § 2671. “[T]he critical test for distinguish-
ing an agent from a contractor is the existence of federal
authority to control and supervise the ‘detailed physical per-
formance’ and ‘day to day operations’ of the contractor.”
Hines v. United States, 60 F.3d 1442, 1446 (9th Cir. 1995)
(citations omitted).

  Federal law determines whether an individual is a federal
employee. Billings v. United States, 57 F.3d 797, 800 (9th Cir.
1995). Common law agency principles are also instructive in
determining whether one is a contractor or an employee. E.g.,
Logue v. United States, 412 U.S. 521, 526-27 (1973); Will v.
United States, 60 F.3d 656, 659 (9th Cir. 1995). “Courts are
13020              AUTERY v. UNITED STATES
not free to ‘abrogate the [independent-contractor] exemption’
for the negligent acts of contractors regardless of whether
there is a good reason for so doing.” Hines, 60 F.3d at 1447
(quoting Logue, 412 U.S. at 528).

   [2] Contractual provisions directing detailed performance
generally do not abrogate the contractor exception. The
United States may “fix specific and precise conditions to
implement federal objectives” without becoming liable for an
independent contractor’s negligence. Orleans, 425 U.S. at
816. “Neither do standards that are designed to secure federal
safety objectives convert the agent into an employee.” Hines,
60 F.3d at 1447 (citation omitted). “[D]etailed regulations and
inspections are [not] evidence of an employee relationship.”
Letnes v. United States, 820 F.2d 1517, 1519 (9th Cir. 1987)
(citations omitted). That is, “the ability to compel compliance
with federal regulation does not change a contractor’s person-
nel into federal employees.” Id. (citations omitted). Rather,
“[t]here must be substantial supervision over the day-to-day
operations of the contractor in order to find that the individual
was acting as a government employee.” Id. (citation omitted).

   [3] Applying these standards, Plaintiffs cannot dispute that
Fluor and DynCorp and HFD are government contractors.
Moreover, all indications are that the government did not
direct the actual performance of the contract (e.g., how to
fight the fires, or how to disc the soils, or how to conduct a
controlled burn). Plaintiffs don’t argue, and the complaint
does not allege, that the government supervised or directed (or
negligently supervised or directed) day-to-day operations of
HFD as to maintaining firebreaks on the ALE near SR-24 so
as to render any HFD employee a de facto government
employee.

   Rather, Plaintiffs contend that, at least after the 1997 MOU,
there was no contractual provision at all specifically for fire
prevention or firebreak maintenance on the ALE. By its
terms, the 1997 MOU between the DOE and FWS gave
                   AUTERY v. UNITED STATES               13021
responsibility for “fire protection” to the FWS. Paragraph 4.3
of the MOU provided in part that “FWS will be responsible
for coordination of the . . . fire protection, emergency pre-
paredness, and . . . general maintenance and administration
for the ALE.” (Emphasis added). Similarly, paragraph 5.5
provided that “Until FWS has developed its own approved
management plan and has upgraded its own fire protection
capabilities for the ALE, the appropriate DOE-RL POC . . .
is responsible for providing FWS fire protection, including
initial attack and incident management, for ALE structures
and wildlands, on a cost reimbursable basis from FWS.”
(Emphasis added.) Although the transition from DOE to FWS
was not yet complete, under the MOU’s terms, the United
States still maintained responsibility.

   [4] The problem for Plaintiffs is that the DOE contract with
Fluor and Fluor’s subcontract with HFD were still in place.
The MOU between DOE and FWS, even if it changed respon-
sibility for management of the ALE, did not change those
contracts. The continuation of the contracts indicates that the
DOE had still delegated the same responsibilities to its con-
tractors, even after the management change. Plaintiffs
respond, however, by arguing that the subsequent notifica-
tions in letters to Fluor and HFD — that after the management
change Fluor and HFD should “continue to provide fire pro-
tection services . . . to the ALE on a cost reimbursable basis”
— also indicated that FWS (or the DOE) would now be
responsible for other fire prevention and maintenance.

   Plaintiffs point to language in the subsequent 1998 Cooper-
ative Agreement directly between FWS and HFD and contend
that the agreement only covers “fire fighting” and not “fire
prevention” or other maintenance such as firebreaks near the
ALE. In particular, Plaintiffs point to the agreement’s
“Scope” section and contend that there is nothing indicating
that HFD is responsible for “fire prevention” duties, in gen-
eral, nor for firebreak maintenance on the ALE or around SR-
24, in particular. On the other hand, the government points to
13022               AUTERY v. UNITED STATES
the “Purpose” section, which indicates the Cooperative
Agreement is for “fire protection and wildfire suppression.”

   To support their argument that the Cooperative Agreement
deals only with actual “firefighting,” Plaintiffs point to the
deposition testimony of Don Good, where he acknowledges
that “fire protection” and “fire prevention” are different from
“fire fighting.” They rely on his testimony where he says
“HFD doesn’t do any fire prevention” or “fire protection” for
FWS.

   Plaintiffs also point to the contractor-produced 1993 ALE
Facility Management Report. They contend that compliance
with the 1993 report was a requirement of the MOU, and was
not merely “guidance” as the document indicates. Section
4.2.7 of the 1993 report says “All fire fighting is the responsi-
bility of [HFD]” but then says “The ALE facility manager will
periodically review the fire prevention and fire fighting plans
with the [HFD], ensuring that facility users take appropriate
steps to minimize the possibility of causing a fire[.]”

   Plaintiffs’ position, however, rests upon the proposition
that, after the 1997 MOU, there no longer was a contractual
provision in place between the DOE and Fluor (and, in turn,
HFD) regarding fire prevention (or any other pre-MOU duty
besides “fire protection services”).

   Nevertheless, it is plain that “fire prevention” and “fire pro-
tection system . . . maintenance” are included within the terms
of the relevant contracts. Even assuming there was a specific
requirement or expectation that firebreaks in particular would
be maintained, such maintenance fits squarely within the con-
tractual responsibilities. Further, contrary to the Plaintiffs’
position, the MOU between the DOE and FWS did not alter
the terms and obligations of Fluor in its contract with DOE,
or of DynCorp (HFD) in its corresponding subcontract with
Fluor. The July 17, 1997, letter from DOE to Fluor (and the
similar October 6, 1997, letter from Fluor to DynCorp) are
                    AUTERY v. UNITED STATES                13023
effectively nothing more than official acknowledgments to
Fluor and DynCorp of the signing of the MOU and confirma-
tions that the MOU did not change existing contractual duties.
There is no evidence that those letters indicated any intent to
modify existing contractual agreements between the DOE and
Fluor. (Indeed, the letters confirmed that duties would con-
tinue even after the MOU.) And by the MOU’s very terms,
the management change had not yet occurred; an approved
management plan had to be approved before FWS assumed
control of the ALE. The independent-contractor exception to
the FTCA applies here.

   The testimony of Don Good that “we don’t do any fire pre-
vention for U.S. Fish and Wildlife,” even taken out of context,
does not create a material dispute of fact regarding the con-
tractual duties. At best for Plaintiffs (as indicated in the post-
wildfire reports), and construing evidence in their favor as is
required at a summary judgment stage, there was confusion
regarding the scope of duties specifically as to firebreak main-
tenance. But, even assuming so, it only indicates a potential
issue regarding contractual performance. The independent-
contractor exception to the FTCA would still apply.

   The Plaintiffs’ theory of negligence was premised upon a
failure to maintain firebreaks along SR-24. The government
argues, however, that there is no duty of a landowner as a
matter of law specifically to utilize firebreaks in all circum-
stances. We need not reach this argument because, whether or
not there was such a duty regarding firebreaks around SR-24,
the contractual provisions plainly provide that “fire preven-
tion” was delegated by the DOE (and FWS) to contractors.
The contracts necessarily encompassed decisions about fire-
breaks as well.

                     IV.   CONCLUSION

   [5] Fire protection and fire prevention were contracted by
the government to Fluor and by Fluor to the HFD. These con-
13024              AUTERY v. UNITED STATES
tracts included duties, if any, regarding fire breaks. The 1997
management transfer of the ALE from the DOE to FWS did
not modify those contracts. The independent-contractor
exception bars this FTCA suit against the United States.

  AFFIRMED.
