                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 24 2017
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


MELINDA ARMSTRONG, individually                  No.   15-35094
and as the natural parent and guardian
of RWA, a minor child; RICHARD                   D.C. No. 1:13-cv-00163-BLW
ARMSTRONG, individually and as the
natural parent and guardian of RWA, a
minor child,                                     MEMORANDUM*

              Plaintiffs-Appellants,

 v.

UNITED STATES OF AMERICA,

              Defendant-Appellee.


                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                        Argued and Submitted April 5, 2017
                               Seattle, Washington

Before:      KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,**
             Chief District Judge.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
                                                                                   page 2
      1. The Forest Service Handbook and Manual are irrelevant to this case

because the accident happened in a user-created, dispersed campsite. The

provisions on which plaintiffs rely apply only to trees in developed campsites that

the Forest Service actively maintains or on National Forest System roads.


      2. Nor did the Third Pole Project create a mandatory duty for the Forest

Service to identify and remediate any particular dead tree in the dispersed

campsite. The Third Pole Project was “designed to improve soil, watershed and

aquatic conditions,” not to address safety issues. “Human Safety” risk was merely

one of thirty characteristics of the dispersed campsite that the Forest Service was

cataloging. The inventory sheet asked Forest Service personnel to indicate only

whether there were any human safety hazards, including hazard trees, at the

inspected campsite. It didn’t “specifically prescribe[] a course of action” for

identifying and remediating dead trees and, therefore, left that decision to the

Forest Service’s discretion. Berkovitz v. United States, 486 U.S. 531, 536 (1988).


      3. The Forest Service’s decision not to identify and remediate particular

dead trees in dispersed campsites is the type of decision that “the discretionary

function exception [under the Federal Tort Claims Act] was designed to shield.”

Id. at 536. As we held in Terbush v. United States, “th[e] process of identifying
                                                                            page 3
and responding to hazards in the wild implicates the [government’s] broader policy

mandates to balance access with conservation and safety.” 516 F.3d 1125, 1137

(9th Cir. 2008).


      AFFIRMED.
