                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3530
                         ___________________________

                   Greg Herden; Roger Herden; Garrett Herden

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

                              United States of America

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: April 12, 2013
                                Filed: August 9, 2013
                                   ____________

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY,
SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges,
En Banc.
                             ____________

BYE, Circuit Judge, with whom WOLLMAN, LOKEN, MURPHY, SMITH,
COLLOTON, GRUENDER, and BENTON, Circuit Judges, join, concurring.

       Greg Herden, Roger Herden, and Garrett Herden (the Herdens) sued the
United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-
80. They alleged their cattle operation suffered damage because of a seed mixture an
employee of the United States Department of Agriculture (USDA) directed them to
plant on their land. The district court1 dismissed the Herdens' claims, concluding the
federal employee's conduct fell within the FTCA's discretionary-function exception.
After a divided panel of this court reversed the district court, the en banc court
granted the government's petition for rehearing. We now affirm the district court.

                                            I

       The Herdens operate a three-generation2 cattle farm in northern Minnesota. In
May 2004, the Herdens chose to participate in the Environmental Quality Incentives
Program (EQIP). EQIP is a program run by the USDA through the Natural Resource
Conservation Service (NRCS). "The purpose of EQIP is to promote agriculture
production, forestry management, and environmental quality as compatible goals, and
to optimize environmental benefits." Megan Stubbs, Cong. Research Serv., R40197,
Environmental Quality Incentives Program (EQIP): Status and Issues 1 (2009); see
also 16 U.S.C. § 3839aa (reciting the purposes of EQIP). Through EQIP, the
government provides financial and technical assistance to farmers and ranchers. In
exchange, farmers and ranchers who choose to participate in EQIP implement
conservation measures "to address soil, water, air, and related natural resources
concerns . . . on their lands in an environmentally beneficial and cost-effective
manner." 7 C.F.R. § 1466.1 (2004). In this case, the Herdens agreed to plant a mix
of grasses and legumes on some of their pasture lands, and the government agreed to
reimburse the Herdens 90% of the costs associated with planting the seed mixture
chosen by the NRCS.




      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
      2
          Roger Herden is Greg Herden's father. Greg Herden is Garrett Herden's father.

                                           -2-
       Because environmental conditions vary widely across the United States, the
specific conservation practices approved through EQIP must be determined locally.
See 68 Fed. Reg. at 32,341 (2003) ("A basic element of EQIP implementation . . . is
the use of the locally-led process to adapt EQIP to local conditions."). As a result, the
NRCS's State Conservationist chooses local employees who will administer the
program at specific sites. See 7 C.F.R. § 1466.6 (2004). In Minnesota, William Hunt
served as the NRCS's State Conservationist. Hunt delegated seed mixture planting
decisions to his staff, including State Grazing Specialist Howard Moechnig.
Moechnig was the particular staff member who visited the Herdens' ranch to select
a seed mixture.

       Moechnig visited the Herdens' operation in the fall of 2004, including a pasture
referred to as Section 11. Moechnig observed particularly wet conditions in Section
11. Because of the saturated soil, Moechnig chose a seed mixture with a high amount
of Alsike Clover for the Herdens to plant in the pasture. Specifically, Moechnig
recommended a mixture comprised of six pounds of Alsike Clover, four pounds of
Timothy grass, and three pounds of Garrison Creeping Foxtail grass. Altogether the
seed mixture averaged 271 seeds per square foot. Moechnig explained he chose that
particular seed mixture for several reasons, including the following: (1) to establish
good ground cover; (2) to enhance soil quality; (3) to enhance ground and surface
water quality; (4) to prevent erosion; (5) to create wildlife habitat; and (6) to provide
good forage. See App. at 37. In addition, Moechnig believed the seed mixture he
chose "would continue to provide good vegetation for many years, so cost-sharing it
through EQIP was a good investment for NRCS." Id.

      Federal regulations require that "[a]ll conservation practices in the EQIP plan
of operations must be carried out in accordance with the applicable NRCS field office
technical guide." 7 C.F.R. § 1466.9 (2004). When choosing the seed mixture for the
Herdens' land, Moechnig referred to Code 512 of the Minnesota Field Office



                                          -3-
Technical Guide (FOTG).3 Under a heading entitled "Species Selection," Code 512
says seed "[m]ixtures will have a recommended seeding rate of 50-70 seeds per
square foot." Although the 271 seeds per square foot Moechnig chose for the
Herdens' land exceeded this recommended seeding rate, another provision of Code
512 (Table 2 entitled "Mixtures Recommended in Minnesota") specified that "[o]ther
mixtures may be used." In fact, Table 2 listed several mixtures that exceeded the
recommended seeding rate of 50-70 seeds per square foot.

      Similarly, Table 1 entitled "Seeding Rates" allowed for several mixtures that
exceeded the recommended seeding rate of 50-70 seeds per square foot.4 For
example, when Alsike Clover is planted alone and not in a mixture, Table 1
recommends planting 3.5 million seeds per acre, which converts to over 80 seeds per
square foot. Likewise, the "in mixture" recommendations under Table 1 for Alsike
Clover (1.4 million seeds per acre) and Timothy grass (3.69 million seeds per acre)
convert to 117 seeds per square foot without including Creeping Foxtail grass.

       After Moechnig chose the seed mixture for the pasture in Section 11, Greg
Herden said he complained to Moechnig about the high amount of Alsike Clover in
the mixture because the clover can create toxic hay for cattle. Moechnig does not
recall Herden complaining about Alsike Clover toxicity, but does remember Herden
asking for permission to plant a mix containing alfalfa. Moechnig denied permission
to plant an alfalfa mix, explaining that alfalfa is hard to establish on wet soils and
therefore would neither meet NRCS's environmental goals nor be a good investment
for the government. The Herdens chose to comply with Moechnig's seed mixture


      3
          Coincidentally, Moechnig himself authored Code 512 of the FOTG.
      4
       Table 1 lists the number of pounds of seed recommended per acre for various
grasses and legumes, as well as the number of seeds in each pound. The pounds of
seeds per acre multiplied by the amount of seeds per pound converts to seeds per
square foot by dividing the result by 43,560, the number of square feet in an acre.

                                         -4-
decision because failure to do so would have resulted in losing the federal funding
under EQIP.

       After planting the seed mixture in the Section 11 pasture, the Herdens allowed
cattle to graze the pasture. They also harvested hay from the pasture and stored it.
They later fed the stored hay to their cattle during the winter and spring of 2006-07.
The Herdens claim toxic hay began to injure their cattle in the spring of 2007.
Several calves were stillborn, and others died shortly after birth. Adult cattle also
died. The Herdens attribute the illnesses and deaths of their cattle to the Alsike
Clover in the hay harvested from the Section 11 pasture. They claim the losses to
their cattle herd have virtually destroyed their multi-generational farming operation.
The NRCS contests the Herdens' claims and instead believes mold in improperly
stored hay caused the problems with the cattle herd.

       In February 2010, the Herdens brought suit against the United States pursuant
to the FTCA. They alleged Moechnig was negligent in advising them to plant a seed
mixture with such a high amount of Alsike Clover, and his negligence caused injury
to their cattle operation and family farm. The government moved to dismiss for lack
of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The
government argued Moechnig's seed mixture selection was the type of policy-
implementing decision for which the government is immune from suit under the
FTCA's discretionary-function exception. The district court agreed Moechnig's
decision was a discretionary one. The district court further determined Moechnig's
decision involved the balancing of policy goals and considerations, making it the type
of discretionary decision Congress intended to exempt from suit. The district court
therefore granted the government's motion to dismiss. The Herdens filed a timely
appeal.




                                         -5-
                                           II

       When a district court dismisses a claim under Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction, we review the dismissal de novo,
"placing the burden of proving the existence of subject matter jurisdiction on the
plaintiff." Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir.
2005). We may look outside the pleadings to determine the threshold question of
jurisdiction. Id.

      Pursuant to the FTCA, the federal government waives sovereign immunity and
allows itself to be sued

      for injury or loss of property . . . 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). This broad waiver does not, however, apply to claims "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). This
exception is referred to as the discretionary function exception. See, e.g., Walters v.
United States, 474 F.3d 1137, 1139 (8th Cir. 2007). "If the FTCA's discretionary
function exception applies, it is a jurisdictional bar to suit." Id.

       A well-established legal framework applies to determine whether the
discretionary function exception bars a party's suit under the FTCA. The first inquiry
is whether the challenged conduct or omission is truly discretionary, that is, whether
it involves an element of judgment or choice instead of being "controlled by
mandatory statutes or regulations." United States v. Gaubert, 499 U.S. 315, 328

                                          -6-
(1991) (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If the
challenged conduct is not discretionary, the exception does not apply.

       If the challenged action is discretionary, however, the next inquiry is whether
the government employee's judgment or choice was "based on considerations of
social, economic, and political policy." Layton v. United States, 984 F.2d 1496, 1499
(8th Cir. 1993) (citing Berkovitz, 486 U.S. at 536-37). Not all discretionary decisions
are immune from suit because the Congressional purpose of the exception is "to
prevent judicial 'second-guessing' of legislative and administrative decisions
grounded in social, economic, and political policy[.]" United States v. Varig Airlines,
467 U.S. 797, 814 (1984). However, as long as a discretionary decision is
"susceptible to policy analysis," Gaubert, 499 U.S. at 325, the exception applies
"whether or not [a] defendant in fact engaged in conscious policy-balancing." C.R.S.
ex rel. D.B.S. v. United States, 11 F.3d 791, 801 (8th Cir. 1993).

                                          A

       The Herdens first contend Moechnig's selection of a seed mixture for the
Section 11 pasture was not a discretionary decision. More to the point, they argue
Moechnig violated a mandatory and specific directive of the FOTG when he selected
a seed mixture containing 271 seeds per square foot, because Code 512 says seed
"[m]ixtures will have a recommended seeding rate of 50-70 seeds per square foot."
See Burgin v. Nix, 899 F.2d 733, 735 (8th Cir. 1990) (per curiam) (recognizing the
use of the word "will" in a prison policy was mandatory in nature).

       We acknowledge a federal regulation clearly mandates that "[a]ll conservation
practices in the EQIP plan of operations must be approved by NRCS and developed
and carried out in accordance with the applicable NRCS technical guidance." 7
C.F.R. § 1466.9(a). In addition, the government does not dispute the "technical
guidance" mentioned in § 1466.9(a) refers to the Minnesota FOTG, including Code

                                         -7-
512. We ultimately reject the Herdens' contention that Moechnig violated a
mandatory and specific directive when he selected a seed mixture containing more
than 50-70 seeds per square foot, however, because Code 512 itself does not mandate
any particular seed mixtures. Rather, our reading of the FOTG indicates Code 512
set forth technical guidelines for Moechnig to follow in the exercise of his discretion.

       We reach this conclusion for two reasons. First, although Code 512 states seed
mixtures "will have" 50-70 seeds per square foot, other parts of Code 512 use
permissive language which conflicts with this purportedly mandatory directive.
Notably, the phrase "50-70 seeds per square foot" is itself modified by the word
"recommended." Code 512 also states it "may be applied as part of a resource
management system" and "[o]ther mixtures may be used." See Dykstra v. Bureau of
Prisons, 140 F.3d 791, 796 (8th Cir. 1998) (indicating "use of the term 'may' in . . .
regulations imports discretion"). Overall, Code 512 uses predominantly permissive
rather than mandatory language, a clear signal the seeding mixtures contained therein
are merely guidelines rather than mandatory requirements. See Riley v. United
States, 486 F.3d 1030, 1033 (8th Cir. 2007) (concluding a uniform state highway
standard which addressed sight angles at intersections was merely a guideline and not
mandatory, despite the standard's use of the term "must," because the standard also
used permissive terms such as "guidance" and "recommended").

       Second, as noted above, many of the seeding mixtures listed in Tables 1 and
2 of Code 512 actually exceed the purported maximum of 70 seeds per square foot.
As a result, a State Grazing Specialist such as Moechnig could not, in many instances,
comply with the seed mixtures contained in the tables as well as the recommended
seeding rate of 50-70 seeds per square foot. This supports the government's
contention that the recommended seeding rate in Code 512 did not refer to the
maximum amount of seeds to be planted per square foot, and was not intended as a
mandatory range. Consequently, we conclude Moechnig's selection of a seed mixture
for the Section 11 pasture was a discretionary decision.

                                          -8-
                                           B

       The Herdens further contend Moechnig's seed mixture selection, even if
discretionary, was not the type of discretionary decision Congress intended to shield
from suit because it is not susceptible to policy analysis. Because we have
determined Moechnig's decision was a discretionary one, "it must be presumed that
the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499
U.S. at 324. "The [Herdens] must rebut this presumption." Demery v. United States
Dep't of Interior, 357 F.3d 830, 833 (8th Cir. 2004).

       In attempting to rebut the presumption that Moechnig's decision was grounded
in policy, the Herdens argue the "decision was a mere professional judgment not
imbued with the policy making character that the discretionary function exception
was designed to shield from judicial second guessing." Appellant's Br. at 22. The
Herdens further suggest the "scale of the decision must be considered" when
determining whether a professional decision is susceptible to a policy analysis, and
that Moechnig's seed mixture decision "was a professional judgment for one farm, not
a decision of sufficient scale to be deemed a policy judgment." Id. at 21, 22.

       In Gaubert, the Supreme Court addressed a similar claim involving operational
level decisions undertaken by federal bank regulators in managing the day-to-day
activities of a savings and loan association (SLA). The plaintiff argued the regulators'
conduct fell outside the discretionary function exception because it "involved the
mere application of technical skills and business expertise" at the operational level
rather than at a policy-making level. 499 U.S. at 331. The Supreme Court rejected
this argument, stating:

      But this is just another way of saying that the considerations involving
      the day-to-day management of a business concern such as [the SLA] are
      so precisely formulated that decisions at the operational level never
      involve the exercise of discretion within the meaning of [the FTCA], a

                                          -9-
       notion that we have already rejected in disapproving the rationale of the
       Court of Appeals' decision. It may be that certain decisions resting on
       mathematical calculations, for example, involve no choice or judgment
       in carrying out the calculations, but the regulatory acts alleged here are
       not of that genre. Rather, it is plain to us that each of the challenged
       actions involved the exercise of choice and judgment.

Id.

        "Discretionary conduct is not confined to the policy or planning level." Id. at
325. The fact that Moechnig's decision involved technical or professional judgment
at the operational level is not enough to remove his decision from the protection of
the discretionary function exception. See Layton, 984 F.2d at 1500 ("[T]he Supreme
Court has repeatedly said that it is the nature of the conduct, rather than the status of
the actor, that governs whether the discretionary function exception applies in a given
case. . . . In other words, the fact that determinations are made at a relatively low level
does not prevent the applicability of the exception.") (internal quotation marks and
citation omitted). Thus, the relevant inquiry does not focus on whether Moechnig
applied professional or technical judgment to make a decision about just one seed
mixture in one pasture of one farm. Rather, the inquiry is whether the seed mixture
decision was susceptible to a policy analysis because it was "based on considerations
of social, economic, and political policy." Id. at 1499.

       To decide that question, we do not start on a clean slate. Moechnig's selection
of a seed mixture implemented the policies of the EQIP program, the purpose of
which is "to address soil, water, air, and related natural resources concerns . . . in an
environmentally beneficial and cost-effective manner." 7 C.F.R. § 1466.1 (2004).
In another case involving environmental policy, we addressed whether the
government's maintenance of an aeration system on a lake located within the Turtle
Mountain Indian Reservation fell within the discretionary function exception.
Demery, 357 F.3d at 832. We held "[t]he BIA's maintenance of the aeration system


                                           -10-
clearly lends itself to policy analysis" because the "decision concerned protecting the
environment and aquatic habitats, which are obvious issues of policy." Id. at 833.

       Similarly, in Layton we addressed "decisions regarding the culling of timber
. . . made at the local level" by Forest Service employees. 984 F.2d at 1500. One
employee of a private contractor hired by the government to cull trees from the
Ozark-St. Francis National Forest died and one employee of a second private
contractor suffered injuries in separate felling accidents. They both alleged their
injuries were caused in part by the negligence of Forest Service employees in
selecting the individual trees to be felled. We held the selection of specific trees to
be culled – a decision based on the professional judgment of federal timber markers
– fell within the discretionary function exception because the "decisions made by
Forest Service personnel were independent choices grounded in policy." Id. at 1502.
The policy we identified was the "Forest Service's policy of improving timber
quality." Id.

      The six reasons Moechnig gave for his seed mixture decision (to establish good
ground cover, to enhance soil quality, to enhance ground and surface water quality,
to prevent erosion, to create wildlife habitat, and to provide good forage) were all
based on considerations of environmental policies the EQIP program was meant to
advance.5 Consequently, we see no meaningful distinction between the decisions

      5
        The dissent contends we impermissibly focus upon Moechnig's actual and
specific decision. The dissent claims the actual decision is irrelevant because a
challenged decision need only be susceptible to policy analysis for the discretionary
function exception to apply. We disagree to being limited to an abstract consideration
of any particular decision. Although a decision maker need not actually consider
social, economic, or political policy to trigger the exception, it is nonetheless relevant
when a decision maker actually does consider policy factors before making a
decision. Indeed, the fact a decision maker actually takes policy factors into account
is one way to demonstrate a decision is susceptible to policy analysis. Furthermore,
the question whether a particular decision maker actually considered policy factors,

                                          -11-
involved in Demery and Layton and the seed mixture decision involved here. In all
three cases, federal employees exercised professional judgment at the operational
level to advance an environmental policy of the federal government.

       We have also recognized one of the earmarks of a decision susceptible to
policy analysis is one in which a federal employee must weigh or balance competing
interests. See Chantal v. United States, 104 F.3d 207, 212 (8th Cir. 1997) ("It is well
established that a decision which requires the weighing of competing interests is
'susceptible to policy analysis' and typifies the kind of governmental decisions which
Congress intended to shield from judicial second-guessing." (quoting Gaubert, 499
U.S. at 325)).

       In this case, Moechnig was charged with balancing a number of competing
interests. Code 512 required him to choose a seed mixture "as part of a resource
management system to accomplish one or more" of six listed purposes:

      •      Establish adapted and compatible species, varieties, or cultivars.
      •      Improve or maintain livestock nutrition and/or health.
      •      Extend the length of the grazing season.
      •      Provide emergency forage production.
      •      Reduce soil erosion by wind and/or water.
      •      Improve or renovate species growing on pasture or hayland.




or at least could have considered them, is a completely separate inquiry from the
question whether the decision maker ultimately abused his discretion. Thus, the
dissent's citation to 28 U.S.C. § 2680(a) (stating the United States may not be sued
based upon a discretionary function "whether or not the discretion involved be
abused") does nothing to advance the claim to the effect we cannot examine whether
Moechnig actually considered environmental policies prior to making his decision.

                                         -12-
In addition, two of the statutory purposes of EQIP are to "promote agricultural
production . . . and environmental quality as compatible goals." 16 U.S.C. § 3839aa.
As the facts of this case aptly demonstrate, the six purposes listed in Code 512 – as
well as the statutory purposes of agricultural production and environmental quality
– can sometimes be competing interests even though the NRCS is charged with the
task of making them compatible.

       On one hand, the Herdens believed a seed mixture containing alfalfa would
have better advanced the statutory goal of agricultural production, as well as one of
Code 512's stated purposes of improving or maintaining livestock nutrition and/or
health. On the other hand, Moechnig believed a seed mixture containing Alsike
Clover would better advance the statutory goal of environmental quality, and at least
one of Code 512's stated purposes of reducing soil erosion by wind and/or water. The
fact that Moechnig was required to balance those competing interests in order "to
optimize environmental benefits," 16 U.S.C. § 3839aa, clearly demonstrates the
decision he ultimately made was susceptible to policy analysis and thus the type of
decision Congress meant to shield from judicial second-guessing. A federal
employee implementing EQIP at the local, operational level must have the discretion
to balance environmental protection and cattle production in order for the program
to be worth the government's significant investment.

       Moechnig's need to balance competing interests is what primarily distinguishes
this case from others where decisions involving the exercise of professional judgment
did not fall within the protection of the discretionary function exception. See C.R.S.,
11 F.3d at 802 ("The issue . . . whether there are real and competing policy
considerations implicated is what separates" protected discretionary decisions from
unprotected ones.); Layton, 984 F.2d at 1505 (basing its distinction between protected
discretionary decisions and unprotected ones on whether a "consideration of
competing values was implicated in the government's decision").



                                         -13-
       For example, in Lather v. Beadle County, 879 F.2d 365 (8th Cir. 1989), we
addressed the provision of medical care by a government physician, more specifically,
the treatment provided by a psychologist employed by the National Health Services
Corporation in Huron, South Dakota. The basketball coach for Huron College sought
treatment from the psychologist for depression. The government psychologist, in
consultation with a psychiatrist, prescribed medication to treat the depression. The
depression worsened, however, and ultimately the coach suffered serious injuries
when he jumped from a moving vehicle while being transported by deputy sheriffs
to the Human Services Center in Yankton after voluntarily committing himself.
Following the injuries, the coach sued the government psychologist alleging he was
negligent in his evaluation of the coach's medical condition and in failing to advise
the deputy sheriffs to use restraints during the coach's transportation between Huron
and Yankton. Id. at 366-68. We held the physician's provision of medical care did
not fall within the discretionary function exception because it did not involve
"governmental discretion," which we equated with the need to balance policy
considerations. See id. at 368 (citing Georgia Cas. & Sur. Co. v. United States, 823
F.2d 260, 262 (8th Cir. 1987)).

       In Lather, the government actor was advancing a singular goal, i.e., providing
appropriate medical care to a patient. The government psychologist was not required
to balance any competing policy considerations when he prescribed depression
medication, or when he failed to instruct the deputy sheriffs to use restraints. In sharp
contrast, Moechnig's job required him to balance protecting the environment with
providing nutritious cattle forage, while at the same time being cognizant of the cost
to the Herdens and the federal government. We therefore conclude this case involves
the type of discretionary decision Congress meant to shield from judicial second-
guessing.




                                          -14-
                                          III

      We affirm the district court.

MELLOY, Circuit Judge, with whom RILEY, Chief Judge, and SHEPHERD, Circuit
Judge, join, dissenting.

       I would hold that Moechnig's decision in this case is not the type of decision
Congress intended to shield from suit. Decisions are not shielded from suit merely
because it is possible to identify policy issues behind the government program at
issue. Rather, there must be "real and competing policy considerations implicated,"
C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 802 (8th Cir. 1993), at the general
level of decisionmaking challenged in the lawsuit. This "is what separates" protected
from unprotected conduct. Id. It is our task to carefully distinguish those cases
involving meaningful policy considerations from cases like this, that bear only the
superficial trappings of such considerations.

       The majority identifies potential policy considerations that lie behind EQIP,
and concludes that government technical specialists administering EQIP—employees
such as Moechnig—generally are permitted and required to make decisions based
upon "competing policy considerations." The majority states, "A federal employee
implementing EQIP at the local, operational level must have the discretion to balance
environmental protection and cattle production in order for the program to be worth
the government's significant investment." Ante at 13. I simply disagree that such
discretion can be characterized as addressing real and competing policy
considerations in a meaningful sense. Such an employee does not enjoy the
discretion to treat these dual goals as inconsistent and champion one over the other.
Such an employee must, as a matter of technical expertise and based upon prevailing
site conditions, "promote agricultural production . . . and environmental quality as
compatible goals." 16 U.S.C. § 3839aa. I find no support for the proposition that a

                                         -15-
technical specialist such as Moechnig is empowered by statute, regulation, or Code
512 to step outside his role as a scientist, take on the mantle of policymaker, and
choose one of these goals over the other. See Berkovitz v. United States, 486 U.S.
531, 537 (1988) ("[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)).

       To the extent the majority views this case as involving a competing
dichotomy—alfalfa for cattle as allegedly proposed by the Herdens versus
Moechnig's selected seed mix (allegedly unfit for cattle)—the majority errs in three
separate ways. First, it impermissibly focuses upon Moechnig's actual and specific
decision in this case. In applying the second step of the discretionary-function
analysis, however, we are to ask only if the challenged action permitted the exercise
of discretion and whether it was the type of governmental action that is susceptible
to policy analysis. We are not to examine the actual choice that was made and infer
from that particular choice that policy questions were in play. 28 U.S.C. § 2680(a)
(stating that the United States may not be sued based upon the "exercise or
performance or the failure to exercise or perform a discretionary function . . . ,
whether or not the discretion involved be abused"); Demery v. U.S. Dep't of Interior,
357 F.3d 830, 833 (8th Cir. 2004) ("The judgment or decision need only be
susceptible to policy analysis, regardless of whether social, economic, or political
policy was ever actually taken into account, for the exception to be triggered.");
C.R.S., 11 F.3d at 798 ("Defendant could have considered a wide range of policy
factors in making its decision; whether or not it actually did so is immaterial . . . .").

         Second, to the extent it was appropriate to examine Moechnig's actual decision
at all, the majority's description of the decision is incorrect. Here, the record is clear:
Moechnig did not select his recommended seed mixture and reject the Herdens'
request for alfalfa to champion environmental concerns over forage needs. He
rejected alfalfa as a planting option for the pasture in Section 11 because he did not

                                           -16-
believe alfalfa was appropriate for the site. In his technical estimation, alfalfa was not
likely to thrive in that pasture's saturated soil. Also, in his technical estimation and
professional judgment, a high seed application rate for the other species was required
to compensate for these difficult growing conditions. Further, Moechnig's
recommended seed mixture cannot reasonably be viewed as inherently incompatible
with cattle forage needs when viewed in the appropriate context, i.e., as part of a
larger cattle operation involving several different pastures with different
characteristics and different plant species. This independent fact proves the falseness
of the dichotomy at the heart of the majority's opinion. The fighting issues in this
case, were a court to permit it to go to trial, would be issues of causation: did
Moechnig's seed selection cause the damage to the Herdens' cattle; did the Herdens
improperly harvest and store wet grasses and legumes from Section 11, thus by their
own hands independently causing the development of dangerous molds or other
toxins; did the Herdens unwisely permit their cattle to graze too long or too
exclusively on a field of alsike clover when other, less-alsike-intensive pastures were
available; or, even assuming there were no mold or other storage-related infirmities
with feed from Section 11, did the Herdens simply err by unwisely and exclusively
feeding a heavy alsike clover mixture to the cattle when the harvested products of
Section 11 could have been blended with other stored feed? These potential and
serious jury questions as to causation make clear the majority's error in examining
Moechnig's actual decision and interpreting it as based on a false dichotomy pitting
cattle needs against environmental needs.

       Third, the cases show that in almost all situations, it is possible to look at a
government actor's decisionmaking task and find some element of "social, economic,
or political policy," Demery, 357 F.3d at 833, lurking in the background. It remains
important to acknowledge this fact so as to not oversimplify our characterizations of
decisions and also to guard against interpreting the mere presence of such issues as
showing that they are real and competing in a material sense. In my view, the
majority makes this mistake.

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        In Lather v. Beadle County, 879 F.2d 365, 368 (8th Cir. 1989), cited by the
majority, we found the discretionary-function exception did not apply to decisions of
a government physician providing patient treatment. The majority describes the
government actor in Lather as "advancing a singular goal, i.e., providing appropriate
medical care to a patient." Ante at 14. In setting forth this description, the majority
fails to acknowledge the complex considerations inherent in the provision of medical
care. Behind every individual medical treatment recommendation is a technical
medical diagnosis coupled with a calculus that balances the cost-effectiveness of
tests, procedures, and medications against the individual patient's wellness goals, the
ethical strictures of the profession and society, and larger public-health concerns. For
example, the age-related use of PSA tests (with their many false positives) or the
overuse of antibiotics are matters of substantial societal concern that, in any
individual case, may have grave implications for an individual patient. Nevertheless,
the presence of social, economic, and political concerns inherent in medical decisions
are not sufficiently "real and competing" in the context of individual patient treatment
to trigger application of the discretionary-function exception under the FTCA. I
therefore disagree with the majority's attempt to distinguish the present case from
Lather by characterizing the physician as a government actor with a "singular goal."
Rather, Lather demonstrates the need for our court to openly acknowledge that few
if any decisions are made in the pursuit of a singular goal and that social, economic,
and political policy considerations can be identified behind most decisions. It
remains our task to sort the wheat from the chaff and determine, in each case, whether
any such policy issues are "real and competing" in any meaningful way.

       In reaching my conclusion that the discretionary-function exception should not
apply in this case, I recognize the rebuttable presumption that arises in favor of its
application when a court concludes that some degree of discretion exists. United
States v. Gaubert, 499 U.S. 315, 324 (1991) ("When 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

                                         -18-
grounded in policy when exercising that discretion. "). I also reject categorical
treatment, as urged by the Herdens in this case, that would draw bright lines between
"operational" and "planning" decisions, site-specific and generally applicable
decisions, cost-related and non-cost-related decisions, or even technical/professional
and layperson decisions. See Id. at 325–26 (rejecting categorical treatments such as
"operational" versus "planning" and stating, "'it is the nature of the conduct, rather
than the status of the actor' that governs whether the discretionary function exception
applies" (quoting United States v. Varig Airlines, 467 U.S. 797, 813 (1984))). Still,
our rejection of categorical treatment cannot lead us to ignore the need to distinguish
between those cases where policy concerns are substantial and important factors at
the level of decisionmaking involved in a case and those cases where such concerns
are merely background noise. Here, I am left with the firm impression that
Moechnig's limited authority did not extend to the type of discretion Congress
intended to shield from suit. Accordingly, I dissent.
                         ______________________________




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