FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 31, 2020
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
LOGAN BALL; ELIZABETH BALL; ESTATE OF SARAH BALL,
Plaintiffs - Appellants, No. 19-1161 v.
UNITED STATES OF AMERICA,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-01461-REB-NRN) _________________________________
Randall M. Weiner, Law Offices of Randall M. Weiner, P.C., Boulder, Colorado (Annmarie Cording, Law Offices of Randall M. Weiner, P.C., Boulder, Colorado on the briefs) on behalf of Plaintiffs-Appellants.
Casen B. Ross, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C. (Mark B. Stern, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., Joseph H. Hunt, Assistant Attorney General, and Jason R. Dunn, United States Attorney, Washington, D.C. on the briefs) on behalf of the Defendant-Appellee. _________________________________
Before HARTZ, MATHESON, and CARSON, Circuit Judges. _________________________________
HARTZ, Circuit Judge. ____________________________________ Shortly before 3:00 a.m. on June 12, 2016, Sarah Ball was killed when the car in
which she was a passenger drove off United States Forest Service Road 456.1A and over
an earthen mound before falling into an abandoned mine shaft about 20 feet off the road.
Her parents and her estate (Plaintiffs) brought suit against the United States under the
Federal Tort Claims Act (FTCA), raising several causes of action alleging negligence by
the United States Forest Service. The United States District Court for the District of
Colorado granted the government’s motion to dismiss for lack of subject-matter
jurisdiction, ruling that the government was immune from liability under the
discretionary-function exception to the FTCA. Plaintiffs appeal. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
The accident took place in the Arapaho and Roosevelt National Forests and
Pawnee National Grassland (the Forest) within Region 2 of the National Forest System,
which contains lands within five states. The area of the Forest exceeds 1.5 million acres.
In Region 2 there are an estimated 11,500 remnants of abandoned mines (commonly
referred to as abandoned-mine features), such as adits (the mine entrances), mine shafts,
quarries and pits, tailing piles, and buildings. A 1993 survey identified 1329 such
features in the Forest. There are over 2600 miles of road in the Forest, of which 1987
miles, including Forest Service Road 456.1A, are designated as Maintenance Level 2
roads.
The Forest Service Handbook describes the Level 2 designation as follows:
2 Assigned to roads open for use by high clearance vehicles. Passenger car traffic, user comfort, and user convenience are not considerations. Warning signs and traffic control devices are not provided with the exception that some signing, such as W-18-1 “No Traffic Signs,” may be posted at intersections. Motorists should have no expectations of being alerted to potential hazards while driving these roads. Traffic is normally minor, usually consisting of one or a combination of administrative, permitted, dispersed recreation, or other specialized uses. Log haul may occur at this level. Appropriate traffic management strategies are either to: a. Discourage or prohibit passenger cars, or b. Accept or discourage high clearance vehicles
Aplt. App., Vol. I at 60 (emphasis added). The Forest Service Guidelines for Road
Maintenance Levels similarly explain that Level 2 roads are “not suitable for passenger
cars” and “[d]o not always provide motorists with alerts to potential hazards.” Id. at 142.
The publicly available Motor Vehicle Use Map prepared by the Forest Service for
visitors to the Forest further states that “[m]aintenance of designated roads and trails will
depend on available resources, and many may receive little maintenance.” Id. at 61. The
map also counsels that “[m]otor vehicle use, especially off-highway vehicle use, involves
inherent risks that may cause property damage, serious injury, and possible death to
participants.” Id.
A Forest Service official submitted a sworn declaration explaining that the
selection of which road-maintenance projects get funding requires balancing several
priorities, including repairing roads with severe damage, maintaining roads where the
Forest Service anticipates an upcoming project, and maintaining roads frequently used by
the public for recreational activities. On average for the years between 2013 and 2017,
the Forest Service had funding to perform maintenance of only 122 of the 1987 miles of
3 Level 2 roads in the Forest. Road 456.1A, however, has been considered to be in
acceptable condition for its Level 2 classification and thus has not been designated for
any maintenance or repair.
Not until 1998 did Congress make funds available to address the physical-safety
hazards, as opposed to environmental concerns, posed by abandoned mines. The
inventory of abandoned mines on Forest Service land and the mitigation of their hazards
are conducted through the Environmental Compliance and Protection and Abandoned
Mine Lands (ECAP/AML) Program. The Program’s Forest-level managers request
funding for specific projects from the Region manager who allocates available funds. As
the Region 2 manager explained in his sworn declaration, “Funding for mitigating
potential physical safety hazards associated with abandoned mine sites is limited and
competes with funding for other Forest Service programs and priorities.” Id. at 49.
If funding is obtained, the Forest-level manager has discretion on how to
administer the project, including whether to partner with state or local entities or private
organizations. In Colorado the Forest Service has a Master Participating Agreement with
the Colorado Division of Reclamation, Mining, and Safety to address the abandoned
mines in the state. Before any project can begin, the Forest Service must undertake
various environmental reviews, including those required by the National Environmental
Policy Act, and ensure compliance with agency standards, such as those in the Forest’s
own 1997 Land and Resource Management Plan, which has a standard to protect bats that
use mines. In Region 2 between 2008 and 2016 the Forest Service and its partners were
4 able to mitigate only an average of 86 abandoned-mine features and associated hazards
each year, of the over 11,500 in the Region.
II. DISCUSSION
A. The FTCA
The FTCA provides a limited waiver of sovereign immunity. It allows private
parties to bring civil suits against the United States for personal injury or death caused by
the negligence or wrongful conduct of government employees within the scope of
employment. See 28 U.S.C. § 1346(b)(1); Kiehn v. United States, 984 F.2d 1100, 1102
(10th Cir. 1993). The United States can be held liable only “under circumstances where
the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
There are also several statutory exceptions to the waiver of sovereign immunity.
In particular, the discretionary-function exception precludes holding the United States
liable for an act or omission “based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a). “The basis for the discretionary function exception was Congress’
desire to prevent the judicial second-guessing of legislative and administrative decisions
grounded in social, economic, and political policy through the medium of an action in
tort.” Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (internal quotation marks
omitted). The exception “marks the boundary between Congress’ willingness to impose
5 tort liability upon the United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.” United States v. Varig Airlines,
467 U.S. 797, 808 (1984).
To determine whether this exception applies, we employ the two-part test set out
by the Supreme Court in Berkovitz. First, we “determine whether the challenged conduct
‘involves an element of judgment or choice,’ in which case it is discretionary and falls
within the language of the exception, or whether it involves ‘a federal statute, regulation,
or policy that specifically prescribes a course of action for an employee to follow,’ in
which case the exception does not apply.” Kiehn, 984 F.2d at 1102 (brackets omitted)
(quoting Berkovitz, 486 U.S. at 536).
If the conduct was discretionary, we move to the second step and ask “‘whether
that judgment is the kind that the discretionary function exception was designed to
shield.’” Id. at 1103 (quoting Berkovitz, 486 U.S. at 536). In particular, discretionary
decisions “grounded in the social, economic, or political goals of the [governing] statute
and regulations are protected.” United States v. Gaubert, 499 U.S. 315, 323 (1991). Or,
as this court has expressed the point, if the conduct “implicates the exercise of a policy
judgment of a social, economic, or political nature,” the discretionary-function exception
shields the government from liability. Duke v. Dep’t of Agric., 131 F.3d 1407, 1411
(10th Cir. 1997).
The Supreme Court has provided guidance on how courts should determine
whether this second prong is satisfied. “When established governmental policy, as
6 expressed or implied by statute, regulation, or agency guidelines, allows a Government
agent to exercise discretion, it must be presumed that the agent’s acts are grounded in
policy when exercising that discretion.” Gaubert, 499 U.S. at 324 (emphasis added); see
Kiehn, 984 F.2d at 1105 (ordinarily we “will not assume a nonpolicy decision unless the
record shows something to the contrary”). That is, the complaint must be dismissed
unless it “allege[s] facts which would support a finding that the challenged actions are not
the kind of conduct that can be said to be grounded in the policy of the regulatory
regime.” Gaubert, 499 U.S. at 324–25.
Further, “[t]he focus of the inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or regulation, but on the nature of the
actions taken and on whether they are susceptible to policy analysis.” Id. at 325. Rather
than “ask[ing] whether policy analysis is the actual reason for the decision in question,”
we ask “categorically (rather than case specifically) whether the kind of conduct at issue
can be based on policy concerns.” Sydnes v. United States, 523 F.3d 1179, 1185 (10th
Cir. 2008) (internal quotation marks omitted) (in considering wrongful-termination claim
under the FTCA, we would “not inquire into the intent of the government supervisor
when making [the] specific personnel decision” but would ask instead whether “decisions
regarding employment and termination” generally require consideration of policy factors
(brackets and internal quotation marks omitted)). Thus, “it is unnecessary for
government employees to make an actual conscious decision regarding policy factors”
for the exception to apply. Kiehn, 984 F.2d at 1105 (internal quotation marks omitted).
7 “In fact, we have found it irrelevant whether the alleged failure to warn was a matter of
deliberate choice, or a mere oversight.” Id. (internal quotation marks omitted). In light
of this approach, the absence of record evidence reflecting a policy analysis is
immaterial. See id. (upholding application of discretionary-function exception even when
government provided no evidence that National Park Service’s failure to post warnings in
remote areas of Dinosaur National Monument was a policy-based decision).
We review the applicability of the discretionary-function exception de novo. See
Duke, 131 F.3d at 1409.
B. Plaintiffs’ Theory of Negligence
Plaintiffs complain that traveling west on Road 456.1A (as was Ms. Ball) the road
appeared to divide into north and south forks near the abandoned mine shaft where the
accident occurred (the Mine Shaft). The north fork was the proper continuation of the
road, but Plaintiffs state that at the time of the accident the north fork was partially
blocked by tree limbs about 6 to 8 feet above the road. The apparent south fork, which
looked wider as one approached the intersection, was the path to the Mine Shaft.
Plaintiffs allege that the Forest Service negligently constructed, remedied, and maintained
Road 456.1A, creating dangerous conditions for drivers. In particular, they contend that
because the Forest Service knew about the Mine Shaft’s existence, it should have put up
warning signs or otherwise prevented vehicles from falling into it, such as by filling the
shaft or placing a barrier between the road and the hazard.
8 C. Application of Berkovitz Prong One
To begin, we ask whether any statute, regulation, or policy required the Forest
Service to take any of the precautions suggested by Plaintiffs. See Kiehn, 984 F.2d at
1102. If such an obligation existed, there would be no discretion for the exception (to the
waiver of sovereign immunity) to protect. See id. In claiming that the government
cannot advance past this first prong, Plaintiffs assert that § 2332.1 of the Forest Service
Manual mandated the Forest Service to warn or guard against the hazard posed by the
Mine Shaft.
Section 2332.1 requires that the agency do the following:
To the extent practicable, eliminate safety hazards from developed recreation sites. Inspect each public recreation site annually before the beginning of the managed-use season. Maintain a record of the inspections and corrective actions taken with a copy of the operation and maintenance plan. Immediately correct high-priority hazards that develop or are identified during the operating season or close the site.
Forest Service Manual § 2332.1 (emphasis added). We question whether the accident
occurred at a “developed recreation site.” Plaintiffs’ complaint alleges that Road 456.1A
is used to provide “access to dispersed camping sites,” Aplt. App., Vol. I at 16, and
their reply brief asserts that § 2332.1 applies to such camping sites. The United States,
however, contends that § 2332.1 is inapplicable because “developed recreation sites”
have amenities and facilities that are absent from the area around the Mine Shaft and
from dispersed camping sites.
9 But in any event, we need not consider Plaintiffs’ argument on the applicability of
§ 2332.1 because, as pointed out by the government, Plaintiffs failed to present it below.
In district court Plaintiffs never relied on, or even cited, § 2332.1. Because Plaintiffs
failed to preserve their argument below and have not argued for relief under plain-error
review, we consider the argument waived. See Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1130–31 (10th Cir. 2011).1
Plaintiffs offer three arguments against our finding of waiver. First, they assert
that the regulatory sources they relied on below (§§ 7730.5 and 7731 of the Forest
Service Manual and language from the Forest Service Guidelines for Road Maintenance
Levels, none of which they rely on in their briefs on appeal) were not intended to be
exclusive examples of maintenance and safety requirements applicable to Road 456.1A.
Second, they argue that because they relied on and the district court considered some
parts of the Forest Service Manual, we cannot ignore the Manual’s other provisions.
Third, they invoke the statement in United States v. Johnson, 821 F.3d 1194, 1199 (10th
Cir. 2016), that “[o]nce a federal claim is properly presented, a party can make any
argument in support of that claim; parties are not limited to the precise arguments they
made below.” Aplt. Reply Br. at 20.
We are not persuaded. All three arguments rest on a misconception of the nature
of appellate review. The proceedings in district court are not just a rehearsal, a dry run,
1 The United States argues that Plaintiffs waived any challenge to the district court’s holding on the first Berkovitz prong by failing to raise it in their opening brief. Because we reject the challenge on a narrower ground, we need not address the issue. 10 for the ultimate performance on appeal, where the parties can discard what did not work
below and introduce new scenes for a new audience. We review the case litigated below,
not the case fleshed out for the first time on appeal. In fairness to opposing parties and to
prevent further burden on overburdened courts caused by interminable litigation, we
expect parties “to give it everything they’ve got at the trial level.” Fish v. Kobach, 840
F.3d 710, 730 (10th Cir. 2016) (internal quotation marks omitted). As we said when
explaining the limitations of the language quoted above from Johnson, “Theories—as
opposed to the overarching claims or legal rubrics that provide the foundation for them—
are what matters.” Id.
Plaintiffs’ present reliance on § 2332.1 is not the addition of a mere nuance to the
Berkowitz prong-one arguments made below (which were not pursued on appeal). It is a
new theory. And adding it would be particularly unfair to the government in this case
because it has had no opportunity to make a record regarding the meaning of § 2332.1.2
D. Application of Berkovitz Prong Two
Because Plaintiffs have failed to show that a policy, statute, or regulation required
the Forest Service to take the actions suggested by Plaintiffs, we advance to the second
Berkovitz prong. At this step we ask whether the Service’s decision not to post a warning
sign or make site improvements at the Mine Shaft is the kind of judgment “that the
discretionary function exception was designed to shield,” Berkovitz, 486 U.S. at 536—
2 The United States claimed at oral argument that it has evidence establishing that the accident site is not a “developed recreation site” to which the duties in § 2332.1 apply, but that it did not offer this evidence in district court because Plaintiffs did not rely on § 2332.1 below. 11 that is, whether the decision “implicates the exercise of a policy judgment of a social,
economic, or political nature,” Duke, 131 F.3d at 1411.
Plaintiffs argue that the second prong is not satisfied because the United States
failed to provide evidence showing that the Forest Service’s decision not to warn or
otherwise protect against the hazard posed by the Mine Shaft and Road 456.1A was
grounded in policy considerations. But this contention is misguided in at least two
respects.
First, Plaintiffs misunderstand the relevant burden. As the Supreme Court said in
Gaubert, we presume that a government agency’s acts are grounded in policy when no
statute, regulation, or policy sets forth a required course of conduct; the challenger must
allege facts showing otherwise. See 499 U.S. at 324–25. Having already determined that
the first Berkowitz prong was met, we presume that the Forest Service’s decision-making
was policy-based unless Plaintiffs direct us to facts to the contrary.
Second, Plaintiffs incorrectly describe the nature and scope of the second-prong
inquiry. “Application of Berkovitz’s second prong does not require proof of the thought
processes of the pertinent decisionmakers.” Elder v. United States, 312 F.3d 1172, 1182
(10th Cir. 2002). Rather, the focus of the inquiry is more generally “on the nature of the
actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S.
at 325.
To the extent that Plaintiffs contend that our decision in Hardscrabble Ranch,
L.L.C. v. United States, 840 F.3d 1216 (10th Cir. 2016), held that evidence of the
12 agency’s thought processes is required, they misread that opinion. The plaintiffs’ FTCA
claim in that case challenged the Forest Service’s response to a fire that damaged their
property. See id. at 1217. The plaintiffs attempted to rebut the Gaubert presumption by
arguing that the Forest Service failed to follow its own “Decision Checklist,” which
guides the Service’s response to wildfires, and by criticizing other aspects of the
response. See id. at 1222. We explained, however, that the Service’s actual response to
the fire was not our focus. See id. Instead, the second Berkowitz prong was satisfied
because “the [Forest Service] actions in fighting the Sand Gulch Fire [were] susceptible
to a policy analysis grounded in social, economic, or political concerns,” namely “the
balancing of the needs to protect private property, ensure firefighter safety, reduce fuel
levels, and encourage natural ecological development.” Id. We noted that these concerns
were consistent with those raised by questions in the Decision Checklist and the Forest
Service’s formal Incident Decision regarding the fire. See id. at 1222–23. But we did not
say that the expression of policy rationales in the Decision Checklist and Incident
Decision was necessary to satisfy the second prong. Those documents simply confirmed
the relevance of the policy concerns we identified.
In sum, our inquiry here is whether the Forest Service’s decisions about warning
or guarding against the dangers posed by off-road hazards, including abandoned-mine
features, implicate protected policy judgments. It is not, as Plaintiffs argue, whether
there is evidence that the inaction specific to the Mine Shaft and Road 456.1A was
13 grounded in policy. And following Gaubert, we presume that the Forest Service’s
decision-making was policy-based.
In an effort to show that policy considerations did not underlie Forest Service
inaction with respect to warning signs or barriers, Plaintiffs point to the declarations
offered by several Forest Service officials. Plaintiffs observe that although the
declarations addressed several issues directly tied to the negligence alleged by Plaintiffs
in their complaint (such as deficient road maintenance and failure to fill in abandoned
mines), the declarations make no specific mention of warning signs or barriers. Plaintiffs
contend that this omission therefore suggests that no policy-based reasoning informed the
Forest Service’s decision not to use such safety measures.
It is not unreasonable to infer that when an agency provides policy reasons for
some decisions, its failure to identify policy reasons for other, related decisions may
suggest that none exist. Still, the failure of the declarations to mention concerns specific
to warnings signs and barriers does not negate the Gaubert presumption. See 499 U.S. at
324–25 (presumption is triggered whenever regulatory scheme allows agency or official
to exercise discretion). Further, as we explain below, the Forest Service’s decisions
whether to employ warning signs or barriers are susceptible to the types of policy
analysis protected by the discretionary-function exception—even if not spelled out in the
declarations.
Our precedents have regularly applied the discretionary-function exception to
protect a decision not to post warning signs on land managed for public recreation when
14 the decision “inherently requires a balancing of public policy objectives, such as resource
allocation, visitor safety and scenic preservation.” See Kiehn, 984 F.2d at 1105;3 see also
Johnson v. U.S. Dep’t of Interior, 949 F.2d 332, 338 (10th Cir. 1991) (“[T]he Park
Service’s decision not to place additional warnings in the Teton Range, whether explicit
or implicit, was part of the overall policy decision to limit governmental regulation of
climbing, educate climbers via the permit system, and preserve the Park in accordance
with the statutory directive. This decision cannot be divorced from the overall policy not
to engage in strict regulation of climbing activity in the Park.”); Zumwalt v. United
States, 928 F.2d 951, 955 (10th Cir. 1991) (decision not to post warnings along trail “was
part of the overall policy decision to maintain the Trail in its wilderness state”).
Other appellate courts have adopted the same approach. The Eleventh Circuit’s
decision in Autery v. United States, 992 F.2d 1523 (11th Cir. 1993) is instructive. A tree
in Great Smokey Mountain National Park had fallen on a car, killing the driver and
injuring the passenger. See id. at 1524. The surviving passenger and the administratrix
of the driver’s estate sued the United States under the FTCA, alleging that the National
Park Service was negligent in its inspection of potentially hazardous trees and its
response to discovering such hazards. See id. After determining that no policy, statute,
3 Plaintiffs suggest that prioritization of resources cannot by itself be a sufficient policy reason for failure to act. For that proposition they cite Boyd v. United States ex rel. U.S. Army, Corps of Engineers, 881 F.2d 895, 897–98 (10th Cir. 1989). But that is a misreading of that opinion. The cited passage merely states that the decision, based on protected policy judgments, to allow both boating and swimming in the same portion of a lake does not automatically establish that the decision not to post warning signs was also a policy decision. The warning-sign decision had to be examined independently. 15 or regulation obligated the Park Service to develop and implement a particular tree-
inspection protocol, see id. at 1530, the court addressed the second Berkovitz prong,
considering the problem of hazardous trees as a group, rather than focusing on the one
tree that hit the car:
To decide on a method of inspecting potentially hazardous trees, and in carrying out the plan, the Park Service likely had to determine and weigh the risk of harm from trees in various locations, the need for other safety programs, the extent to which the natural state of the forest should be preserved, and the limited financial and human resources available.
Id. at 1531. The court therefore held that the Park Service’s “choices involved in such a
development and implementation [were] grounded in social, economic and public policy”
and thus protected by the discretionary-function exception. See id. at 1530–31; see also
Gonzalez v. United States, 851 F.3d 538, 548 (5th Cir. 2017) (“Decisions about how to
maintain bicycle trails running through 382,000 acres of land with only two recreation
technicians seem to invite, if not require, safety, financial, and other feasibility concerns.
Such decisions implicate resource allocation, wilderness considerations, and public
safety; in other words, they are administrative decisions grounded in social, economic,
and political policy.” (internal quotation marks omitted)); cf. Varig Airlines, 467 U.S. at
819–20 (decision-making requiring “agency to establish priorities for the
accomplishment of its policy objectives by balancing the objectives sought to be obtained
against such practical considerations as staffing and funding” was “plainly discretionary
activity of the ‘nature and quality’ protected by § 2680(a)”).
16 The law just summarized compels rejection of Plaintiffs’ argument on the
Berkovitz second prong. If the government is liable for not posting the warning or putting
up the barrier suggested by Plaintiffs at the site of the tragic accident in this case, it could
protect itself from future liability only by regularly examining all 1329 mine features and
all 1987 miles of Level 2 roads in the Forest for possible hazards and then, at the least,
posting warning signs to alert motorists to the hazards. The impact on the Forest Service
budget would be significant, requiring reordering of priorities from other activities. And
posting the number of warning signs that would evidently be required could not help but
detract from the scenic beauty of the Forest, making it a far less attractive place to try to
“get away from it all.” Perhaps the additional protection of life and limb would be worth
those costs. But the Forest Service could decide that adequate protection is afforded by
the warnings provided by the Motor Vehicle Use Map, its existing road-maintenance and
mine-closure policies and projects, and the good sense of motorists in the Forest. In any
event, that is a policy decision protected by the discretionary-function exception.
Plaintiffs contend that the discretionary-function exception does not apply to the
failure to warn of “specific hazards,” citing in support Duke v. Department of
Agriculture, 131 F.3d 1407 (10th Cir. 1997); Boyd v. United States ex rel. U.S. Army,
Corps of Engineers, 881 F.2d 895 (10th Cir. 1989); and Smith v. United States, 546 F.2d
872 (10th Cir. 1976). But the term specific hazard, although it can be factually
descriptive, does not and, if we are to comply with Supreme Court precedent, cannot
change the analysis of when the discretionary-function exception applies. None of the
17 cited cases rejected, or could have rejected, the proposition that the discretionary-function
exception protects government decisions “grounded in social, economic, and political
policy.” Berkowitz, 486 U.S. at 536–37; see Duke, 131 F.3d at 1409 (quoting Berkowitz);
Boyd, 881 F.2d at 897 (same); Smith, 546 F.2d at 877 (predating Berkowitz but
recognizing presence of policy judgments as dispositive issue in deciding whether
exercise of discretion is protected by discretionary-function exception). They simply
held that there were no such policy judgments behind the failures in those cases. See
Duke, 131 F.3d at 1412; Boyd, 881 F.2d at 898; Smith, 546 F.2d at 877. (We should note,
however, that perhaps Smith and Boyd, which were decided before Gaubert, would have
been decided differently if they had applied the Gaubert presumption that discretionary
decisions of government officials are grounded in the requisite policy.)
The gist of Plaintiffs’ theory appears to be that the conditions at the accident site
posed a unique “specific hazard” that could have been dealt with in a way that posed no
policy issues. After all, putting up one sign takes little time, effort, or money and would
not significantly detract from the scenic virtues of the Forest. But courts are not to
examine government decisions at that individualized scale. A judicial decision with
respect to one Forest site may have implications for numerous other similar sites. We
alluded to this point in Elder, where the plaintiffs challenged the adequacy of warning
signage at an attraction in Zion National Park:
[O]ne cannot isolate a particular possible warning sign (or other safety measure, for that matter) and say whether its absence constitutes negligence. The adequacy of one safety measure depends on what other safety measures have been taken. If there is negligence, it is negligence in
18 the design of the entire safety package. Yet park management must judge the totality of the safety package in terms of its impact on other public policies besides safety.
312 F.3d at 1183–84. By disapproving of the Forest Service’s decision with respect to
the Mine Shaft off Road 456.1A, we would be setting Forest Service policy for all mine
shafts and Level 2 roads. If it was required to act at the site of this accident, it would be
required to make individualized decisions at hundreds of other locations. But the
discretionary-function exception was adopted precisely to avoid such judicial interference
in administrative policy. See Berkovitz, 486 U.S. at 536–37 (“The basis for the
discretionary function exception was Congress’ desire to prevent the judicial second-
guessing of legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.” (internal quotation marks
omitted)). The FTCA forbids courts from assuming a policy-making role through the
adjudication of tort claims.
We conclude that the Forest Service’s need to balance limited financial and human
resources, public safety, and scenic preservation in creating and executing its safety and
maintenance plan for off-road hazards, including abandoned-mine features, makes the
challenged inaction squarely the type of decision that the discretionary-function
exception aims to protect from “judicial second-guessing.” Id.
III. CONCLUSION
We AFFIRM the district court’s dismissal of Plaintiffs’ suit.