ORDER AND JUDGMENT
Gregory A. Phillips, Circuit Judge
In these consolidated cases, the Plaintiffs seek damages against the United States under the Federal Tort Claims Act (FTCA) for serious injuries sustained while sledding at the Capulín Snow Play Area, a recreational area managed by the United States Forest Service within the Cibola National Forest. The Plaintiffs allege that the Forest Service’s negligence caused their injuries. Concluding that the FTCA’s discretionary-function exception applied, the district court granted the United States’ motion to dismiss their complaints for lack of subject-matter jurisdiction. The Plaintiffs appeal, and we affirm.
BACKGROUND
The district court made the following pertinent factual findings:
The Capulín Snow Play Area was constructed in direct response to numerous snow play and traffic injuries that had occurred along the highways [in the Ci-bola National Forest], where members
of the public found unofficial and unsafe sites to engage in snow play activities. The purpose of the area was to provide a safer alternative for snow play and to reduce extensive use of roadsides for snowplay activities, which is extremely dangerous and many serious accidents had occurred in the past. The slope of the Capulín Snow Play Area followéd the natural slope of the hill. The Forest Service decided to operate Capulín without supervision, due to limited funding, and it continued to be operated without supervision at all relevant times. Improvements made to the area in 1989 and the early 1990’s did not alter the snow play slopes. Neither the slope of the snow play area nor the run out had been altered at the time of the events in question.
At all material times, the Forest Service posted at the entrance/pay station and made flyers available to the public notifying visitors that the area was operated with minimal supervision—to participate at [their] own discretion and risk. Additionally, signs and flyers advised the public of safety rules, specifically directing the public to be aware of the elements of risk in snow play activities, observe signs and warnings, look around before starting down the hill, and maintain control in order to avoid people and objects. Signs also informed the public that it was the individual sledder’s responsibility to avoid collisions.
The Forest Service visited the Capulín Snow Play Area on a daily basis when the facility was scheduled to be open to assess the amenities and observe the conditions of the slope. During the daily visit, the Forest Service cleared trash, removed or mitigated large human-made jumps and natural moguls, checked general snow conditions, and determined whether to open the area to the public for that day.
In October 2007, an Environmental Assessment was undertaken at Capulín. The Assessment states that the sliding areas at Capulín were too steep allowing too much speed and created unsafe and hazardous conditions for the public. Although the Forest Service began planning to renovate Capulín as early as 2005, due to competing demands' on For
est Service resources, renovation did not begin until May 2010.
On January 31, 2010, Plaintiff Peter Clark sustained serious injuries to his back, and ankle while sledding with his son at the Capulín Snow Play Area. Additionally, on December 27, 2009, Noah Silver, the 12 year-old child of Plaintiffs Aileen O’Catherine and Steven Silver, sustained spinal cord injuries resulting in partial paralysis, a need for multiple surgeries, and other serious life changing injuries while sledding at the Capulín Snow Play Area. As a result of his injuries, Plaintiff Clark filed, under the Federal Tort Claims Act (“FTCA”), a Complaint for Personal Injury on November 12, 2012, alleging a negligence claim against the United States. Similarly, as a result of Noah’s injuries, Plaintiffs O’Catherine and Silver filed, under the FTCA, a Complaint for Personal Injury and Loss of Consortium on November 16, 2012, alleging both a negligence claim and a claim for loss of consortium against the United States.
In their Complaints, Plaintiffs allege that the Forest Service breached its duty to exercise ordinary care such that the Capulín Snow Play Area was reasonably safe for public use and its duty to warn the public of hidden dangers. In support of those allegations, Plaintiffs specifically allege that the Capulín Snow Play Area was operated without supervision; the man-made pitch to the sled area allowed sleds to travel at an unsafe speed and contained insufficient “run out” to allow sleds to safely slow down and stop; and Forest Service employees knew that the public was violating the rules for use and occupancy of the area.
Aplt. App., Vol. 2 at 201-03 (brackets, ellipses, and internal quotation marks omitted).
The United States filed a motion to dismiss the complaints or for summary judgment on the merits of the Plaintiffs’ claims. Alternatively, it moved under Fed. R, Civ. P. 12(b)(1) to dismiss the complaints for lack of subject-matter jurisdiction. The district court denied the government’s merits motion but granted the motion to dismiss for lack of subject-matter jurisdiction. The Plaintiffs then moved for reconsideration, which the district court also denied.
DISCUSSION
1. Appellate Jurisdiction
On September 25, 2014, the district court entered its final judgment of dismissal. On October 15, 2014, the Plaintiffs filed a timely “Motion for Clarification and Motion for Reconsideration of Order Granting Summary Judgment, For Relief From Judgment, or to Alter or Amend the Judgment” (Motion for Reconsideration), seeking relief under Fed. R. Civ. P. 59 and 60. On June 29, 2015, the district court denied the Motion for Reconsideration, which it treated as a motion filed under Fed. R. Civ. P. 59(e). The Plaintiffs had 60 days from that date to appeal from either the denial of their Motion for Reconsideration, the district court’s underlying judgment, or both.
See
Fed. R. App. P. 4(a)(1)(B); 4(a)(4)(A)(v), (vi).
On July 30, 2015, the Plaintiffs timely filed their notices of appeal, within the 60-day time limit. But these notices designated only the district court’s order of June 29, 2015, Thus, the notices did not preserve an appeal from the district court’s underlying judgment of September 25, 2014.
See
Fed. R. App. P. 3(c)(1)(B) (stating notice of appeal must “designate the judgment, order, or part thereof being appealed”).
But on August 13, 2015, still within the 60-day appellate window from the district
court’s order of June 29, 2015, the Plaintiffs filed docketing statements in this court, giving notice under Fed. R. App. P. 3 that they intended to appeal from the September 25 judgment. We will treat the docketing statements as the functional equivalent of an amended notice of appeal.
See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp.,
531 F.3d 1282, 1296 (10th Cir. 2008) (treating amended docketing statement as functional equivalent of second notice of appeal);
see also Ayala v. United States,
980 F.2d 1342, 1344 (10th Cir. 1992) (“We have recognized that a docketing statement ... filed within the period allotted for filing a notice of appeal may cure defects in the notice of appeal.”). Thus, we conclude that we have jurisdiction to review both the district court’s underlying judgment and the denial of the Plaintiffs’ motion for reconsideration.
2, Standards of Review
“We review the district court’s dismissal for lack of subject matter jurisdiction
de novo,
and its findings of jurisdictional facts, if any, for clear error.”
Esposito v. United States,
368 F.3d 1271, 1273 (10th Cir. 2004). “Rule 12(b)(1) motions can take the form of either a facial or a factual attack on the court’s subject matter jurisdiction.” Ing
ram v. Faruque,
728 F.3d 1239, 1242 (10th Cir. 2013) (internal quotation marks omitted). ‘Where the party challenging subject-matter jurisdiction mounts a facial attack, the district court must accept the allegations in the complaint as true.”
Id.
(internal quotation marks omitted). “But if the challenging party brings a factual attack by going beyond allegations contained in the complaint ..., the court has wide discretion to [consider materials outside the complaint] to resolve disputed jurisdictional facts.”
Id.
(brackets, ellipsis, and internal quotation marks omitted). Here, in reaching its decision, the district court considered materials outside the pleadings, including affidavits and documents attached to the government’s motion.
We have considered these materials as well in exercising our review.
We review a court’s decision regarding a Rule 59(e) motion to reconsider for an abuse of discretion.
Phelps v. Hamilton,
122 F.3d 1309, 1324 (10th Cir. 1997).
3. The Discretionary Function Exception
The FTCA authorizes suits against the United States for damages that arise out of
injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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).
“Excluded from this waiver of immunity are claims based on the performance of ‘a discretionary function or duty on the part of a federal agency or an employee of the Government.’”
Garcia v. United States Air Force,
533 F.3d 1170, 1175 (10th Cir. 2008) (quoting 28 U.S.C. § 2680(a)). “This discretionary function exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.”
Id.
(internal quotation marks omitted).
“To determine whether conduct falls within the discretionary function exception, we apply the two-part test set forth by the Supreme Court in
Berkovitz [ex rel. Berkovitz] v. United States,
486 U.S. 531, 536 [108 S.Ct. 1954, 100 L.Ed.2d 531] (1988).”
Id.
at 1176. The discretionary function exception applies only if both elements of the test are met.
See id.
First, we ascertain the precise governmental conduct at issue and consider whether that conduct was discretionary, meaning whether it was a matter of judgment or choice for the acting employee. Conduct is not discretionary if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.
If the first element of the
Berkovitz
test is satisfied, we then consider the second element—whether the decision in question is one requiring the exercise of judgment based on considerations of public policy. In- so doing, we do not consider the employee’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.
(internal quotation marks omitted).
A. First Part of
Berkovitz
Test
Concerning the first part of the test, the Plaintiffs cite a number of sections of the Forest Service Manual (FSM) which they contend created mandatory duties to address the known hazardous conditions (i) by correcting the conditions, (ii) closing the affected areas, or (iii) adequately warning about the hazards.
The
district court determined that none of these guidelines created a mandatory duty because none of them required that a snow play area be maintained in any particular way.
The Plaintiffs complain that in reaching this conclusion, the district court ignored their argument that FSM 1110.3 and 1110.8 govern the interpretation of the FSM and clarify that it prescribes mandatory duties. These sections read as follows:
When a directive is issued ... it is the use of the helping verbs “must,” “shall,” “ought,” “should,” or “may,” or the use of the imperative mood (where “you” is understood) that determines the force and effect of the direction.... Refer to FSM 1110.8 for guidance on the degree of compliance and restriction imposed by helping verbs and imperative mood.
FSM 1110.3(3), Aplt. App., Vol. 2 at 151.
Directive authors must choose verbs carefully to ensure that the degree of compliance is consistent with principles and guidelines for direction at FSM 1111.1 and 1112.1.
Exhibit 01 explains the degree of compliance as conveyed by various “helping verbs” as well as by use of the imperative mood.
FSM 1110.8, Aplt. App., Vol. 2 at 152.
Exhibit 01, referred to in FSM 1110.8, describes the mandatory or permissive effect of various helping verbs used in the FSM, including “must, shall,” “should, ought,” “may not,” “may only,” “may,” “will,” and “can.”
Id.
at 153, Additionally, it provides the following guidance concerning the use of imperative verb forms:
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Id.
These rules for the use of helping verbs and the imperative verb form are not dis-positive in determining whether the cited FSM sections specifically prescribe a course of action for Forest Service employees to follow. This becomes clear when we consider the example provided above in FSM 1110.8: to
“/ejnsure
cost-efficient delivery of services.”
Id.
at 153 (emphasis added). Though the imperative form of the verb “to ensure” is deemed “mandatory” under section 1110.8, the phrase used actually describes a
discretionary
duty under the FTCA. This is because the language does not prescribe a specific course of action for employees to follow. Instead, it requires the use of discretion to determine how to deliver services in a cost-efficient manner.
Certainly, the Plaintiffs need to point to regulatory language that mandates a course of action to avoid the first part of the discretionary-function exception. But the mere use of verb forms that indicate mandatory action is insufficient as a matter of law for us to infer a non-disere-tionary function. Where the regulatory language “mandates” the consideration of alternatives, the weighing of factors, or the application of policy priorities bounded by practical concerns, the language
leaves to the decisionmaker^ discretion how best to fulfill such “mandatory” priorities. A regulatory requirement’s mere use of the imperative form of a verb does not take it outside the exception.
Analyzing the particular sections of the FSM relied upon by the Plaintiffs, we conclude, for the reasons stated by the district court,
see
Aplt. App., Vol. 2 at 214-22, that the record reveals no regulation or policy that prescribes the Forest Service to follow a specific course of action in maintaining and supervising the Capulín snow play area. This is true even when we consider the use of verbs that imply mandatory action, as explained in FSM 1110.3 and 1110.8.
But we see one specific duty prescribed in the FSM that requires further specific discussion. Section 2332.1 requires that the Forest Service annually inspect of its recreational sites, and maintain a public record of the inspections. The district court analyzed this section as follows:
Section 2332.1 also directs the Forest Service to inspect annually its recreation sites, before the beginning of the “managed use season,” and to maintain a public record of those actions. Plaintiffs argue that these directives are mandatory, and that the Forest Service failed to comply with these directives. This argument, however, misses the point, as the conduct alleged to be negligent and to have caused injury to Noah and Mr. Clark is unrelated to its failure to conduct or maintain records of annual inspections. Because any failure of the Forest Service to perform its mandatory duties regarding annual inspections did not give rise to Plaintiffs’ claims, the provisions of Section 2332.1 related to annual inspections is inapplicable to the Court’s determination of the applicability of the discretionary function exception.
Aplt. App., Vol. 2 at 221.
The Plaintiffs argue that the district court’s causation analysis was inappropriate at this stage. They contend that a “focus on remoteness and foreseeability is not relevant to this Court’s analysis under the discretionary function exception.” Aplt. Opening Br. at 39. But this argument mis-perceives the district court’s point.
To circumvent the discretionary function exception, the mandatory duty alleged must be one whose breach bears a causal relationship to the Plaintiffs’ injuries, thereby giving rise to their cause of action against the government.
See, e.g., Franklin Savings Corp. v. United States,
180 F.3d 1124, 1132-33 (10th Cir. 1999) (stating FTCA complaint did not avoid discretionary function exception where, assuming directive to prepare case memoranda weighing alternatives created mandatory duty, complaint failed to “attribute any harm to the breach of a specific mandate to draft memoranda, as opposed to a failure to perform the discretionary function of weighing options”);
cf. Berkovitz,
486 U.S. at 537, 108 S.Ct. 1954 (“[T]he discretionary function exception insulates the Government from liability
if the action challenged in the case
involves the permissible exercise of policy judgment.” (emphasis added)).
The Plaintiffs have not demonstrated that the Forest Service’s failure to annually inspect or to maintain public records of those inspections caused their injuries. Even if the inspections might have revealed dangerous conditions, as the district court explained the Plaintiffs have identified only a
discretionary
duty or function to determine specifically how to remediate those specific conditions and thereby potentially avert their injuries. The district court therefore properly concluded that
the duty to perform and document annual inspections did not give rise to a viable FTCA claim.
B. Second Part of
Berkovitz
Test
The existence of a regulation that allows a government employee discretion “creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.”
United States v. Gaubert,
499 U.S. 315, 324, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). In other words, “[w]hen established governmental policy, as 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.”
Id.
As the district court explained, the presumption arose here and has not been rebutted.
For substantially the reasons stated in its well-reasoned decision,
see
Aplt. App., Vol. 2 at 222-27, we affirm the district court’s determination that the second element of the discretionary function test has been satisfied. Only the Plaintiffs’ claim that the Forest Service had a duty to provide further warnings than it did requires further discussion.
A number of our cases have held that the government’s justification for failing to warn of known hazards in national parks, recreational areas, or wilderness areas did not satisfy the second element of the discretionary-function test.
See, e.g., Duke v. Dep’t of Agriculture,
131 F.3d 1407, 1412 (10th Cir. 1997) (“At this stage the government has not shown how failure to warn or protect from the danger of a boulder rolling down the man-made slope implicated political, social, or economic decisions of the sort that the exception was designed to protect.” (internal quotation marks omitted));
Boyd v. United States,
881 F.2d 895, 898 (10th Cir. 1989) (“An alleged failure to warn swimmers of dangerous conditions in a popular swimming area does not implicate any social, economic, or political policy judgments with which the discretionary function exception properly is concerned. The government’s alleged omission in this case simply does not involve the exercise of such judgment.” (internal quotation marks omitted));
Smith v. United States,
546 F.2d 872, 877 (10th Cir. 1976) (“A policy decision to designate certain areas as ‘undeveloped’ ones may reasonably entail the omission of boardwalks, trails or footpaths and signs marking such ways. [But] it does not follow that the Government, as a landowner, is absolved of all duty under state law to erect safety devices or signs cautioning about conditions which have been left undisturbed as a policy matter.”).
Other duty-to-warn cases, however, have found the second element satisfied.
See, e.g., Elder v. United States,
312 F.3d 1172, 1183 (10th Cir. 2002) (“The Middle Emerald Pools is not a parking lot, but a scenic attraction.... Although some warning signs may be necessary, their number, size, and even content must be measured against the very purposes of a national park, which include to conserve the scenery and provide for public enjoyment.” (internal quotation marks omitted));
Kiehn v. United States,
984 F.2d 1100, 1104-05 (10th Cir. 1993) (“[T]he decision not to plaee additional warnings at the petro-glyph site, whether explicit or implicit, was part of the overall policy objective set forth in the [Park Service] Management Policies of carefully using signs so as to minimize their intrusion upon the area’s natural and historic setting.... The decision not to post warning signs in remote areas of a national monument inherently requires a balancing of public policy objectives, such as resource allocation, visitor
safety and scenic preservation.” (brackets and internal quotation marks omitted));
Johnson v. United States,
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.... In the absence of facts indicating the failure to post additional warnings was a distinct, nonpolicy decision, we conclude that Plaintiffs failure to warn claim is barred by the discretionary function exception.”);
Zumwalt v. United States,
928 F.2d 951, 955 (10th Cir. 1991) (“[T]he absence of warning signs was part of the overall policy decision to maintain the Trail in its wilderness state. ... The Park Service, in choosing to mark the Trail and place warnings in a corresponding pamphlet, undertook a balancing of social, economic, and political policies. Therefore, the exercise of discretion in determining what safety measures to implement also is shielded from judicial review by the discretionary function exception.”).
Examining these fact-specific cases, we discern three basic principles that have guided our analysis:
• If the decision not to give a warning flows from a broader policy decision concerning design or maintenance, then the failure to warn may be viewed as a policy-based exercise of discretion,
see Johnson,
949 F.2d at 338;
Zumwalt,
928 F.2d at 955 (decision not to post warning signs on trail was a “component of an overall policy decision” to “leave the Trail in its wild state”);
Weiss v. United States,
889 F.2d 937, 940 (10th Cir. 1989) (decision not to warn aviators about tramway cable was part of discretionary policy choice not to treat objects less than 500 feet above the ground as an obstruction to aviation).
• Where the United States advances a policy of protecting the pristine quality of a wilderness area it owns or administers as a justification for failure to warn or to implement safety measures, this court will not simply assume that this represents a valid policy judgment without examining the factual context.
Compare Duke,
131 F.3d at 1412 (government failed to show how failure to provide warning concerning boulder rolling down man-made slope “implicated political, social, or economic decisions of the sort that the exception was designed to protect.” (internal quotation marks omitted))
with Elder,
312 F.3d at 1183 (“The Middle Emerald Pools is not a .parking lot, but a scenic attraction.”).
• Where the United States has provided
some
warnings, it is more appropriate to view the failure to provide additional warnings as a policy-based decision than in cases where the government has failed to provide any warning at all.
Compare, e.g., Zumwalt,
928 F.2d at 955 (“The Park Service, in choosing to mark the Trail and place warnings in a corresponding pamphlet, undertook a balancing of social, economic, and political policies.”)
with Smith,
546 F.2d at 877 (“[W]e are convinced that the Government’s decision, as a landowner, not to warn of the known dangers or to provide safeguards cannot rationally be deemed the exercise of a discretionary function.”).
The Plaintiffs focus their attention on the second consideration cited above, contending that the purpose of the Capulín area is “not to preserve the natural beauty of the area .., but ... to provide a safe recreational sledding area for the public.”
Aplt. Opening Br. at 32. The government disputes this, arguing that “Capulín is classed as moderate to high in natural beauty” and that aesthetic factors involving preservation of the environment played a part in its design. Aplee. Br. at 47. As the government also observes, many of the hazards here, while in a sense man-made, are also the sort visitors would face in an untouched natural setting if they used hillsides for sledding, such as prevailed before the Capulín area was constructed.
In our view, however, it is the third consideration that is dispositive here. The Forest Service did not entirely fail to warn the public of known hazards associated with Capulín. Instead, it chose to provide warnings through signs and flyers that notified the public that Capulín was not supervised; that the public should use the area at its own discretion and risk; and that sledders should be considerate of others and should look before starting down the hill. The decision to provide this level of warning was subject to policy-based considerations including allocation of resources and maintaining the rustic nature of the Capulín snow play area.
The Plaintiffs argue for more specific warnings of specific hazards, placed on more visible signs. They complain that
[t]he signs posted at Capulín .,. [lent] no warning as to the dangerous nature of the slope caused by the too steep grade, improper maintenance, and lack of supervision. The signs in no way alerted sledders that built-up ramps, ice, or the degree of the slope could lead to sleds losing control.
They failed to warn that sledding at Capulín could lead to serious injury or paralysis.
Aplt. Opening Br. at 26 (emphasis added).
Although it might be appropriate in certain settings to require the warnings the Plaintiffs mention, the Forest Service was required to consider its limited resources and its mission to provide recreational activities “in close harmony with the surrounding environment.” FSM 2300(4), Aplee. Supp. App. at 88. Posting large signs in unmistakable lettering enumerating specific deficiencies and hazards of the snow play area and referring to “serious injury or paralysis” could reasonably have been judged to detract from this objective. The United States has convincingly argued that the level of warnings provided involved a policy-based decision shielded by the discretionary function exception.
CONCLUSION
We affirm the district court’s judgment and its order denying reconsideration of that judgment.