PROVO Last summer's fatal mauling of 11-year-old Samuel Ives by a black bear was a tragedy, but Utah officials believe the blame lies with the boy's parents and the federal government, not with the state.
"It's not the state's fault," assistant Utah attorney general Reed Stringham told the Deseret News. "I hope that's the message that's been conveyed throughout this. It's a tragedy, but that doesn't mean the state is responsible."
Samuel Ives was camping with his mother, Rebecca Ives, stepfather, Tim Mulvey, and stepbrother, Jack Mulvey, in American Fork Canyon last Father's Day weekend when a black bear ripped a hole in their tent and dragged him out, fatally mauling him.
Rebecca Ives and Samuel's natural father, Kevan Francis, filed lawsuits in 4th District Court and U.S. District Court in March, arguing that the state and federal governments failed to warn campers that a bear had harassed campers in the same area a day before. Had they known that, they never would have camped there and their son would still be alive, they say.
The state recently filed a response to the complaint in 4th District Court, stating that because of the Utah Governmental Immunity Act, the state is protected against this prosecution.
The state argues that blame should be pinned on the United States of America and the USDA Forest Service, plus Ives and Mulvey who both "negligently brought bear attractants, including food, soda and beer to the incident area and allowed attractants to remain in the area," according to the answer. "Their negligent acts attracted the bear to the area and caused the incident that is the subject of this lawsuit."
Allen K. Young, who represents the parties, said they are upset by this passing of the blame.
"The fact of the matter is, we're outraged," Young said. "First of all, it's my belief that probably 90 percent of people probably wouldn't realize that you ought to put your coolers away if you're camping in a national forest. These people had put away their coolers. The state throws everything at the wall and hopes something will stick."
The Ives/Mulvey family has been up the canyon dozens, if not hundreds, of times, and said they consider themselves experienced campers. They know they must put their food away at night.
"If there wasn't an attack the night before, we wouldn't be here arguing it," Francis said at a press conference in March. "We know bears exist, but if there's a shark attack at a beach, they close the beach."
Young also disagrees with the state's defense that the bear was a "natural condition on publicly owned or controlled lands" a factor that would allow governmental immunity.
"It's our position that they have policies and procedures dealing with bears," Young said. "Once they're advised (the bear is) a nuisance and a problem, then they have duties. It's different if it had randomly come into the camp that night."
Along with an answer, Stringham also filed a motion for partial dismissal, explaining that governmental functions are protected under the Governmental Immunity Act of Utah.
Both action and inaction are considered governmental functions by the Legislature and are thus protected, Stringham said.
The government is not protected when it acts negligently, however; but the claim of "mental anguish" as a result of those negligent acts is not a provable claim, based on state code.
Young clarified that the "mental anguish" claim was only asserted on behalf of Jack Mulvey, Ives' stepbrother, who witnessed part of the tragic event.
However, because state code doesn't define 7-year-old Jack Mulvey as an official "heir," he's excluded from the complaint and that particular claim becomes moot. Tim Mulvey was only included in the lawsuit as Jack's legal guardian.
Attorneys say it's possible the motion will be settled without a judge's involvement based on the clear code. But even with a partial dismissal, Ives' mother and father still have claim against the agencies for a wrongful death with the argument of negligence, Stringham said."They denied they did something wrong," Young said of the state. "They said the federal government did something wrong. I expect the federal (government) would say the same thing (about the state)."