                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

RICARDO ANGEL NAVARETTE,               
               Plaintiff-Appellant,
               and                           No. 05-16915
KELLY KASLAR,
                          Plaintiff,          D.C. No.
                                           CV-04-00760-JSW
                v.                            OPINION
UNITED STATES OF AMERICA,
              Defendant-Appellee.
                                       
        Appeal from the United States District Court
           for the Northern District of California
         Jeffrey S. White, District Judge, Presiding

                   Argued and Submitted
         July 13, 2007—San Francisco, California

                   Filed August 29, 2007

      Before: Procter Hug, Jr., Pamela Ann Rymer and
            Raymond C. Fisher, Circuit Judges.

                  Opinion by Judge Fisher;
                  Dissent by Judge Rymer




                            10899
10902             NAVARETTE v. UNITED STATES
                         COUNSEL

Amitai Schwartz (argued), Lisa M. Sitkin, Law Offices of
Amitai Schwartz, Emeryville, California, for the plaintiff-
appellant.

Kevin V. Ryan, United States Attorney, Joann M. Swanson,
Chief, Civil Division, Owen P. Martikan (argued), Assistant
United States Attorney, San Francisco, California, for the
defendant-appellee.


                         OPINION

FISHER, Circuit Judge:

   Ricardo Navarette was severely injured when he fell off a
cliff at a campground operated by the Army Corps of Engi-
neers (Army Corps) near Lake Sonoma in northern California.
Alleging that the campground staff had been negligent in fail-
ing to undertake safety precautions after a “use path” had
developed that led directly from his campsite to the cliff’s
edge, Navarette sued the government for damages under the
Federal Tort Claims Act (FTCA). The district court granted
summary judgment for the government, finding that the dis-
cretionary function exception barred jurisdiction under the
FTCA. We hold that the discretionary function exception does
not apply and reverse.

I.   Background

   Navarette was injured in April 1997 at the Liberty Glen
Campground, which the Army Corps owns and operates. On
the night of his accident, Navarette was camping with his
brother and a group of friends at a site numbered “C-88.”
Navarette and a friend, Kelly Kaslar, walked down an
unmarked path from site C-88 in the direction of flashlights
                  NAVARETTE v. UNITED STATES              10903
visible at another campsite. The path led directly to the edge
of a cliff. Navarette and Kaslar fell off the cliff and fell
approximately 30 feet to the rocks below. Navarette suffered
a brain injury that, according to physicians’ reports, will per-
manently affect his functioning.

   The path leading to the cliff was not part of the camp-
ground plan, but rather a “use path” that had been worn down
by animals and campers. By 1995 at the latest, well before
Navarette’s accident, rangers at Liberty Glen had noticed the
path leading from C-88 to the cliff, but the Army Corps had
done nothing to alert campers using the path to the dangerous
drop off. Indeed, during their regular safety meetings camp-
ground administrators and staff never discussed whether to
take safety precautions related to the path. Following the acci-
dent, however, the staff met to discuss the incident. Their
reaction, as one ranger put it, was “Oh my God! We can abso-
lutely see how it happened.”

   In 2004, Navarette filed a complaint seeking damages from
the United States under the FTCA, 28 U.S.C. § 1346(b)(1).
The district court granted the government’s summary judg-
ment motion, finding that Navarette’s suit was barred by the
discretionary function exception. Navarette then filed this
appeal.

II.   Discretionary Function Exception

   We review the district court’s summary judgment de novo.
See Soldano v. United States, 453 F.3d 1140, 1143 (9th Cir.
2006). “We must determine, viewing the evidence in the light
most favorable to . . . the nonmoving party, whether there are
any genuine issues of material fact and whether the district
court correctly applied the substantive law.” Id. (internal quo-
tation marks omitted) (omission in original).

   [1] The FTCA waives the government’s sovereign immu-
nity for civil actions on claims for money damages, including
10904            NAVARETTE v. UNITED STATES
claims for “personal injury . . . 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
. . . .” 28 U.S.C. § 1346(b)(1). Federal courts’ jurisdiction
over such claims is limited by an exception for:

    [a]ny claim based upon an act or omission of an
    employee of the Government . . . 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 Govern-
    ment, whether or not the discretion involved be
    abused.

28 U.S.C. § 2680(a).

   [2] The Supreme Court has created a two-pronged test for
applying this “discretionary function exception.” First, we
must consider “whether the action is a matter of choice for the
acting employee.” Berkovitz v. United States, 486 U.S. 531,
536 (1987). The exception does not apply “when a federal
statute, regulation, or policy specifically prescribes a course
of action for an employee to follow” and the government
employee deviates from this course. Id. Second, “assuming
the challenged conduct involves an element of judgment, a
court must determine whether that judgment is of the kind that
the discretionary function exception was designed to shield.”
Id. Because “[t]he basis for the discretionary function excep-
tion was Congress’ desire to prevent judicial second-guessing
of legislative and administrative decisions grounded in social,
economic, and political policy,” the exception “protects only
governmental actions and decisions based on considerations
of public policy.” Id. at 536-37 (internal quotation marks
omitted). “It is the government’s burden to demonstrate the
applicability of the discretionary function exception.” Whis-
nant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005).
                     NAVARETTE v. UNITED STATES                      10905
   Navarette argues that the Army Corps’ failure to warn
campers of the danger posed by the use path leading to the
cliff’s edge was not a discretionary choice, because the gov-
ernment had already adopted policies requiring that the camp-
ground be maintained in a safe manner and that such
dangerous terrain conditions be marked or fenced. He cites 36
C.F.R § 327.1 (1997), which requires the Army Corps to man-
age the resources entrusted to it so as to “provid[e] the public
with safe and healthful recreational opportunities while pro-
tecting and enhancing these resources,” and the Army Corps’
Engineering Manual 1110-1-400, which lists as a “Guiding
Principle” “maintaining health, safety, security and comfort of
the customers in all aspects.”1 These statements, however, are
simply general admonitions to make the campsite safe; they
are not specific enough to make governmental decisions
regarding the path and cliff at issue here nondiscretionary. See
Kennewick Irrigation Dist. v. United States, 880 F.2d 1018,
1026 (9th Cir. 1989) (holding that a “general statutory duty to
promote safety” is insufficient to show that the government
lacked discretion).

   [3] However, Navarette’s argument finds more traction in
the Army Corps’ “Lake Sonoma Safety Plan.” The Safety
Plan’s checklist includes an instruction that “[d]angerous ter-
rain conditions, such as drop-offs, etc, will be properly
marked or fenced.” (Emphasis added.) The government
argues that compliance with this instruction was discretionary
because the Safety Plan’s preface states: “The program and
checklist contained herein are not considered complete or
  1
   The Engineering Manual in effect at the time of Navarette’s accident
was dated July 1987; the Army Corps issued a new, superseding edition
in November 2004. The district court and government apparently assume
that the 2004 edition controls here. It is unclear why the 2004 Manual
would govern since Navarette’s accident occurred in 1997, or how the
2004 version might differ from the 1987 version; but on appeal, Navarette
does not contest the applicability of the later Manual. Also, with regard to
the cited portion of 36 C.F.R. § 327.1, we note it has not changed since
Navarette’s accident.
10906             NAVARETTE v. UNITED STATES
entire since programs will be added, deleted, or modified as
the need presents itself, and the checklist is presented only as
a guide in the accomplishment of responsibilities.” According
to the government’s argument, if the checklist was merely “a
guide in the accomplishment of responsibilities,” then park
employees had discretion as to whether or not to follow the
checklist’s instructions. However, in light of the preface’s
explanation that “[t]he program and checklist contained
herein are not considered complete or entire,” the “only as a
guide” language suggests that employees were not to view the
checklist as encompassing the entirety of their duties. That the
listed requirements may not have been comprehensive does
not mean that they were not mandatory.

   Moreover, prefatory language introducing flexibility into
the government’s duties does not trump the government’s
imposition of specific duties on itself. The preface here is
similar to that in the Park Service standards we addressed in
Soldano:

    The standards contained herein provide flexibility in
    the planning and design processes . . . . It is impor-
    tant to note that the standards vary considerably with
    the type of use to be accommodated. Basic decisions
    will have to be made by park management in the
    application of these standards based on careful
    examinations of the desired use levels to be allowed
    considering impacts on visitor use and resource pro-
    tection in conformance with legislative mandates.
    The criteria presented have been adapted from avail-
    able design standards to meet the unique require-
    ments of park roads. This will provide a framework
    within which design and construction of park roads
    should be conducted; however, this document is not
    intended to encompass a level of detail comparable
    to that normally found in design manuals.

453 F.3d at 1149. Despite this language, we concluded that
the “Park Service’s decision to design the Road to closely fol-
                      NAVARETTE v. UNITED STATES                      10907
low granite mountains and to have a vista point in a given
location is protected, but its failure to set a speed limit consis-
tent with those design choices [and the Park Service’s own
specified standards correlating minimum stopping distances
with maximum safe speed limits] is not.” Id. at 1150-51
(internal quotation marks and alterations omitted). The flexi-
bility that the Park Service’s standards included did not
undermine its duties where it had already decided upon a suf-
ficiently specific standard. See id. at 1150 (stating that regard-
less of whether the standards permitted the Park Service
discretion in road design choices, “it does not follow that the
Standards’ basic, scientific safety specifications may be disre-
garded, particularly those that do not require redesigning or
reconstructing the Road”).

   For similar reasons, we also reject the government’s argu-
ment that the Army Corps’ more general guidelines relating
to signs and fences in Engineering Manual 1110-1-400 make
the Safety Plan’s more specific requirements discretionary.
First, the Manual generally provides that fencing and signs be
limited to those places where necessary.2 But the Safety Plan
expressly places drop-offs and other dangerous terrain in that
“necessary” category. Second, the Army Corps certainly
  2
   Section 2.13.2 of the Manual states:
      Fencing should generally only be constructed for access control,
      traffic control, screening, and safety purposes. Care must be exer-
      cised in determining the type and location of fencing. Where
      fencing is necessary it should be of the minimum height and
      design possible to be unobtrusive and still accomplish the
      required function.
Section 2.14 provides that:
      Signs shall be provided only where needed to regulate traffic,
      warn of hazardous conditions, establish restrictions, and provide
      information. The number of signs should be kept at a minimum.
      Symbol signs shall be used whenever feasible. Detailed guidance
      on all traffic, warning and information signs and their placement
      shall conform to EP 310-1-6a and 6b, the Corps’ “Sign Standards
      Manual.”
10908                NAVARETTE v. UNITED STATES
retained discretion as to how to mark or fence drop-offs, but
that does not mean it retained discretion whether to do so. See
Childers v. United States, 40 F.3d 973, 976 (9th Cir. 1994)
(stating that “the precise manner in which NPS would warn
the public” as required by the National Park Service safety
manual “clearly [fell] within the discretionary function excep-
tion”) (emphasis in original); see also Blackburn v. United
States, 100 F.3d 1426, 1431 (9th Cir. 1996) (addressing the
government’s discretion to “determin[e] the precise manner in
which to warn” of hazards). When Navarette fell over the
cliff, however, the government had not warned campers about
the drop-off in any way.

   [4] The government nonetheless argues that the Safety Plan
left intact its discretion to determine whether the terrain at
issue here was in fact dangerous.3 We disagree. The Safety
Plan’s instruction that “[d]angerous terrain conditions, such as
drop-offs, etc, will be properly marked or fenced” is suffi-
ciently “specific and mandatory” to create “clear duties
incumbent upon the governmental actors.” Kennewick Irriga-
tion Dist., 880 F.2d at 1026. Although the Corps may have
had discretion to decide what constituted a drop-off, or to
identify other types of “dangerous terrain,” there is no dispute
here that the 30-foot drop from the path to the rocks below
was in fact a drop-off. As such, it had to be “properly marked
or fenced” according the plain terms of the Safety Plan.

   Given the Safety Plan’s specificity, cases involving govern-
ment directives to provide warning of “special hazards” are
inapposite. Cf. Valdez v. United States, 56 F.3d 1177, 1179
n.2 (9th Cir. 1995) (addressing a national park policy stating
that “[b]rochures specific to the area should contain safety
messages that direct attention to special hazards or attractions
  3
    The government wisely does not argue that the fact that this path was
not part of the campsite’s original design negates its duty to follow the
directives of the Safety Plan, which applies to the “[a]ccess area grounds”
within the Lake Sonoma “facilities,” not only to campground designs.
                      NAVARETTE v. UNITED STATES                      10909
that could be potentially hazardous to the visitor”); Black-
burn, 100 F.3d at 1431 (“[T]he policy manual’s broad man-
date to warn the public of and protect it from special hazards
involves the exercise of discretion in identifying such hazards
. . . [and] in determining which hazards require an explicit
warning.”). Where an adopted policy speaks in such general
terms, we have concluded that it is simply a “broad mandate
to warn the public of ‘special hazards’ ” that “necessarily
encompasses an element of discretion in identifying such haz-
ards.” Valdez, 56 F.3d at 1180; see also Kelly v. United States,
241 F.3d 755, 761 (9th Cir. 2001) (addressing cases in which
“broad mandates did not specify a course of conduct for the
government to follow”). However, we have refused to read
governmental discretion into policies sufficiently determinate
to identify a particular course of proper government action,
because “[w]here the challenged governmental activity
involves safety considerations under an established policy
rather than the balancing of competing public policy consider-
ations, the rationale for the exception falls away.” ARA Lei-
sure Services v. United States, 831 F.2d 193, 195 (9th Cir.
1987); see also Soldano, 453 F.3d at 1148 (stating that there
was no governmental discretion involved in the application of
standards correlating a road’s maximum safe speed limit with
the road’s minimum stopping sight distance); Berkovitz, 486
U.S. at 540-43 (holding that the government lacked discretion
to issue a license to produce a vaccine without requiring the
manufacturer to submit certain test data as required by regula-
tion).

   [5] Here, the Army Corps had already decided that drop-
offs were — in Valdez’s terminology — a “special hazard,”
or — in the Safety Plan’s words — “a dangerous terrain condi-
tion.”4 Accordingly, we hold that the Army Corps’ duty to
   4
     Even if we agreed with the dissent that the Safety Plan gave the Army
Corps some discretion to determine which drop-offs were dangerous, the
path’s termination at a cliff’s edge was clearly dangerous at nighttime and
may well have constituted dangerous terrain as a matter of law. Cf. Ter-
mini v. United States, 963 F.2d 1264, 1269 (9th Cir. 1992) (stating that
“[a] cliff at the end of a dirt road that is not visible from the beginning of
the road would certainly seem to qualify for a warning sign under . . .
guidelines” directing the government to warn of hazardous conditions).
10910             NAVARETTE v. UNITED STATES
mark or fence the path leading to the cliff was “specific and
mandatory,” and thus did not come within the discretionary
exception. Kennewick Irrigation Dist., 880 F.2d at 1026.

  Accordingly, we REVERSE and REMAND for further pro-
ceedings.

  REVERSED and REMANDED.



RYMER, Circuit Judge, dissenting:

   I read the Safety Plan’s “dangerous terrain” provision dif-
ferently from the majority, and therefore dissent. The Plan’s
“Guideline’s Relative to Visitor Safety” states with respect to
“Access area grounds” that “Dangerous terrain conditions,
such as drop-offs, etc, will be properly marked or fenced.” As
I read it, this part of the Plan’s checklist, which the Plan notes
is only a guide, refers to drop-offs as an example of the kind
of terrain condition that may be dangerous, not as a declara-
tion that all drop-offs are dangerous. So construed, applying
the Guideline involves a judgment as to whether a particular
drop-off (or other condition of like nature) is actually danger-
ous.

   I also disagree that this case is similar to Soldano v. United
States, 453 F.3d 1140 (9th Cir. 2006). There the plaintiff
claimed, among other things, that the Park Service negligently
set the speed limit for the road on which he had an accident.
Id. at 1143. The standards were quite specific: they allowed
a speed limit of 35 m.p.h. only where the minimum, actual
stopping-sight distance meets or exceeds 225 feet. Id. at 1148.
Given uncontradicted evidence that the stopping-sight dis-
tance was less than that, we held that the decision to set a
speed limit at 35 m.p.h. was “circumscribed by objective
safety criteria and was not the result of a policy decision of
the kind protected by the discretionary function exception.”
                  NAVARETTE v. UNITED STATES               10911
Id. at 1147; see also, e.g., ARA Leisure Servs. v. United
States, 831 F.2d 193, 195 (9th Cir. 1987) (holding that the
Park Service’s decision to design the Denali Park Road with-
out guardrails was grounded in policy, but the failure to main-
tain a pass on that road to “conform to the original grades and
alignments” and to be “firm, [and] of uniform cross section”
as required by Park Service standards was not).

   As a safety standard operates to remove discretion under
the first prong of the discretionary function test when the stan-
dard “is embodied in a specific and mandatory regulation or
statute which creates clear duties incumbent upon the govern-
mental actors,” Kennewick Irr. Dist. v. United States, 880
F.2d 1018, 1026 (9th Cir. 1989), I would hold as the district
court did, that discretion was not erased by the Safety Plan or
any language in the Engineering Manual.
