                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                             June 20, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
PETER CLARK,

      Plaintiff - Appellant,

v.                                                         No. 15-2113
                                               (D.C. No. 1:12-CV-01160-MV-KBM)
UNITED STATES OF AMERICA,                                   (D. N.M.)

      Defendant - Appellee.

–––––––––––––––––––––––––––––––––

AILEEEN O’CATHERINE; STEVEN
SILVER, individually and as parents and
next friends of Noah Silver, a minor,

      Plaintiffs - Appellants,

v.                                                         No. 15-2114
                                               (D.C. No. 1:12-CV-01176-MV-KBM)
UNITED STATES OF AMERICA,                                   (D. N.M.)

      Defendant - Appellee.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                       _________________________________

      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 Capulin 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 Capulin Snow Play Area was constructed in direct response to
      numerous snow play and traffic injuries that had occurred along the
      highways [in the Cibola 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 Capulin Snow Play Area followed the natural slope of the
      hill. The Forest Service decided to operate Capulin 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

                                            2
      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.1
             The Forest Service visited the Capulin Snow Play Area on a daily
      basis when the facility was scheduled to be open to assess the amenities and

      1
        The Plaintiffs argue that “[t]he signage in this case merely read ‘No Snow
Patrol on Duty, Play at Your Own Risk,’” Aplt. Opening Br. at 25, and that “these
signs do not even remotely warn of the hazards present at the recreational area, nor
do they comply with the [Forest Service Manual] mandates,” id. at 33. In their
response to the United States’ motion to dismiss or for summary judgment, however,
the Plaintiffs admitted that the following signs were present:

       First, there was “one sign in the parking lot adjacent to a path leading to the
sledding slopes and this sign stated, ‘No Snow Patrol on Duty. Play at your Own
Risk.’” Aplt. App., Vol. 2 at 172. The Plaintiffs claimed that at the time of Mr.
Clark’s accident, this sign was obscured by snow and jackets that had been hung on
the sign.

      Second, there were two other signs that read as follows:

                             CAPULIN SNOWPLAY AREA
                            For your safety follow these rules
             Slide on approved devices only
                     Allowed: innertubes, plastic discs & plastic sleds
                     Not allowed: Anything with metal or wood
              For your safety no trains two people max per tube or toy
             No glass containers on slopes
             No alcohol on slopes
             Do not make or use jumps
             Keep pets on leash and under control
             Be considerate of others
             Look before you slide
Id.

       In addition, it appears undisputed that “flyers were made available notifying
visitors that the area is operated with minimal supervision—to ‘participate at your
own discretion and risk.’” Id., Vol. 1 at 63.




                                            3
      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
      Capulin. The Assessment states that the sliding areas at Capulin were too
      steep allowing too much speed and created unsafe and hazardous conditions
      for the public. Although the Forest Service began planning to renovate
      Capulin as early as 2005, due to competing demands on Forest 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 Capulin 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 Capulin 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 15, 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 Capulin 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 Capulin 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


                                             4
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”).



                                           5
       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 CPA, 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.” Ingram 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

                                             6
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.2

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).

      2
         Where a court considers materials outside the complaint to resolve a
Rule 12(b)(1) motion, its reference to such evidence ordinarily does not convert the
motion to one for summary judgment under Fed. R. Civ. P. 56. But an exception
arises where resolution of the jurisdictional question is intertwined with the merits of
the case. In such cases, a court considering evidence outside the pleadings is
required to convert a Rule 12(b)(1) motion to dismiss into a summary judgment
motion. Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000).
       “We have stated, in a number of cases involving the discretionary function
exception to the FTCA, that the determination of whether the FTCA excepts the
government’s actions from its waiver of sovereign immunity involves both
jurisdictional and merits issues.” Id. (internal quotation marks omitted).
“Accordingly, [such a] case should [be] decided on summary judgment rather than as
a 12(b)(1) motion to dismiss.” Id.; see also Garcia v. United States Air Force,
533 F.3d 1170, 1176 (10th Cir. 2008) (treating motion to dismiss involving
discretionary function exception as summary judgment motion where jurisdictional
question was intertwined with merits of case).
       Here, however, neither party argues that this case should have been resolved
under a summary-judgment analysis, or that we should apply the summary-judgment
standard of review. Nor does either party point to specific disputes of material fact
involving merits issues that require resolution under a summary-judgment analysis.
Accordingly, we need not consider whether the motion to dismiss should have been
converted to a motion for summary judgment. Cf. Lopez v. United States, 376 F.3d
1055, 1061 (10th Cir. 2004) (rejecting plaintiffs’ argument that district court should
have converted Rule 12(b)(1) motion into motion to dismiss or for summary
judgment, where specific factual disputes identified by plaintiffs were immaterial to
applicability of discretionary function exception, and where, even drawing all
inferences in plaintiffs’ favor, discretionary function exception applied).


                                            7
      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 . . . (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

                                            8
      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.3 The district court

      3
             These sections include the following:

      2330.3 – Policy
      The basic recreation policies set forth at FSM 2303 and the following
      supplementary policies shall govern the development and administration of
      sites and facilities. Where it is not possible to achieve the objectives to the
      degree defined in this chapter, close sites and facilities to public use.
      1. Use recreation opportunity spectrum guidelines . . . when developing
      sites.
      2. Develop sites and facilities that will provide recreation experiences
      toward the primitive end of the spectrum. Do not provide urban class
      facilities. . . .
      3. Use the land and resource management planning process . . . to reach
      decisions to develop recreation sites.
      4. Develop sites and facilities to enhance natural resource-based activities
      normally associated with a natural environment.
                                                                                 (continued)
                                             9
       5. Seriously consider the element of cost efficiency when developing and
       operating sites and facilities.
       6. Establish priorities for the development and management of sites in the
       following order:
              a. Ensure public health and safety.
              b. Protect the natural environment of the site.
              c. Manage and maintain sites and facilities to enhance users’
              interaction with the natural resource.
              d. Provide new developments that conform to the National Forest
              System recreation role.
       ...
Aplt. App., Vol. 2 at 132-33.

       2331.1 – Regulations and Orders
       Clearly notify the public of the necessary conditions of occupancy and use
       at each individual site. Signs must be positive in tone and explain the
       reasons for the regulations.
       Initiate firm action against those who knowingly, willfully, or persistently
       violate the conditions of occupancy and use. . . . Establish prohibitions by
       orders only where there is a demonstrated need and review them on an
       annual basis.
Id. at 134.

       Section 2331.5 – Site Closures
       There are two types of site closures: permanent and temporary.
              1. Monitor sites to determine whether it is desirable to continue
       operation of the site or to close the site. As part of this monitoring,
       consider:
              a. The relationship of the site to other Forest Service sites. Are there
              other sites nearby that could satisfactorily serve the need?
                                                                                  (continued)
                                             10
                 b. The relationship of the site to other Federal, State, local, or private
                 sites. Could the private sector satisfactorily serve the need?
                 c. Other alternative recreation opportunities.
                 d. Total overall cost/benefit relationships. Although many variables
                 affect the costs of operating and maintaining sites, carefully consider
                 keeping sites open when cost per visitor-day exceeds $1.50.
             2. Make every effort to stretch funds as far as possible to keep
       needed sites and facilities open to public use. As part of this effort,
       consider:
                 a. Temporary or seasonal closures.
                 b. The use of volunteer and other human resource programs to staff
                 and maintain sites.
                 c. User cooperation in keeping areas clean and sanitary. . . .
                 d. The users’ health and safety and level of resource damage.
              3. Establish priorities under reduced funding levels by closing
       lesser-used sites and those sites that have alternative facilities nearby first.
       Also consider reducing service or closing the site during the lesser-used
       portions of the week or season before full closure of the site.
               4. When sites are closed temporarily, install signs explaining why
       the site is closed and giving directions to the nearest available facilities.
              5. Close the site or facility when conditions reach the point that
       users’ health or safety is jeopardized or unacceptable resource damage is
       occurring. . . .
Id. at 135-36.

       Section 2332.1 – Public Safety
       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 public record of the
       inspections and corrective actions taken with a copy of the operation and
       maintenance plan.
                                                                                     (continued)
                                                 11
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,

       Immediately correct high-priority hazards that develop or are identified
       during the operating season or close the site.
Id. at 137.

       Section 2333.32 – Site Capacity
       Ensure that the capacity of the site matches the desired recreation
       opportunity spectrum class and the ability of the site to withstand use.
Id. at 138.




                                            12
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:

      Mood of Verb                  Degree of Compliance or Restriction

imperative                 Direction written with a verb in the imperative mood is
                           also mandatory. For example: “Ensure cost-efficient
                           delivery of services.” In this sentence, the missing
                           subject is understood to be “you” and the direction
                           (“ensure cost-efficient delivery of services”) is a direct
                           command meaning “you shall ensure.” The verb
                           “ensure”, is in the imperative mood. Where there are
                           multiple audiences of a directive (such as line officers
                           and staff officers), use of the imperative verb is
                           appropriate only if it applies to all segments of the
                           audience.”


Id.

       These rules for the use of helping verbs and the imperative verb form are not

dispositive 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 “[e]nsure 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.




                                           13
      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-discretionary 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’s 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 Capulin 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

                                           14
      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 misperceives 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 (“[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)).



                                           15
      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 (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’



                                           16
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

                                          17
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 place additional warnings at the petroglyph 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 Plaintiff’s 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,

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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
                                          19
              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 Capulin 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 “Capulin 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 Capulin area was constructed.
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      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 Capulin. Instead, it chose to provide warnings through signs and flyers that

notified the public that Capulin 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 Capulin 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 Capulin . . . [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 Capulin 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


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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.


                                                    Entered for the Court


                                                    Gregory A. Phillips
                                                    Circuit Judge




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