                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                       PUBLISH
                                                                              DEC 17 1997
                       UNITED STATES COURT OF APPEALS
                                                                           PATRICK FISHER
                                                                                   Clerk
                                   TENTH CIRCUIT




 JOEL RAY DUKE, by his father and next
 friend Danny Duke; DANNY DUKE,

              Plaintiffs-Appellants,
                                                             No. 95-2281
        v.

 DEPARTMENT OF AGRICULTURE,
 Forest Service, USA; STATE OF NEW
 MEXICO, Department of Game and Fish
 and State Highway Department,

              Defendants-Appellees.




             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW MEXICO
                          (D.C. No. CIV-94-150-JP)


Colleen M. Clear of Clear & Clear, Albuquerque, New Mexico, for Plaintiffs-Appellants.

Marilyn S. Hutton, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with
her on the brief), Albuquerque, New Mexico, for Defendant-Appellee United States of
America.

John M. Wells, Albuquerque, New Mexico, for Defendant-Appellee State of New
Mexico.



Before HENRY, LOGAN, and BRISCOE, Circuit Judges.
LOGAN, Circuit Judge.



       Plaintiff Danny Duke, individually and as next friend of plaintiff Joel Ray Duke,

appeals the district court’s grant of summary judgment in favor of defendants, United

States and the State of New Mexico. Plaintiffs asserted that six-year-old Joel Duke

suffered serious brain injury when a boulder rolled down a hillside and smashed into his

tent while he was camping with his family in the Gila National Forest. Plaintiffs’ claim

for damages against the United States was founded on the Federal Tort Claims Act

(FTCA). The district court found that it lacked subject matter jurisdiction under the

discretionary function exception to the FTCA. The central issue in this appeal is whether

the discretionary function exception furnishes immunity for the United States. Plaintiffs

also appeal the district court’s dismissal of their claims against the State of New Mexico

as barred from federal court by the Eleventh Amendment.1




       1
         Plaintiffs also argue that the district court applied an improper legal standard,
abused its discretion in finding plaintiffs were trespassers under the New Mexico
Recreational Use Statute, 17-4-7 N.M.S.A. 1978 (1988 Repl. Pamp.), and made findings
of fact on disputed factual issues including placement of a sign directing campers. We
express no opinion concerning application of the New Mexico Recreational Use Statute,
but leave that to the district court on remand. Plaintiffs also argued the district court
abused its discretion in finding that a sign had been placed telling people where to camp.
That question of fact, if relevant, remains for determination on remand.

                                            -2-
                                              I

       We first address plaintiffs’ argument that the district court erred in dismissing their

claims against the State of New Mexico.2 Unless a state expressly waives Eleventh

Amendment immunity it cannot be sued for damages in federal court. See Edelman v.

Jordan, 415 U.S. 651, 673 (1974). Plaintiffs’ assertion that the state waived Eleventh

Amendment immunity by engaging in activities and entering contracts subject to federal

regulation is incorrect. See, e.g., Faust v. South Carolina State Highway Dep’t, 721 F.2d

934, 940-41 (4th Cir. 1983) (acknowledging overruling of Chesapeake Bay Bridge &

Tunnel Dist. v. Lauritzen, 404 F.2d 1001, 1003 (4th Cir. 1968), relied on by plaintiffs),

cert. denied, 467 U.S. 1226 (1984); see also Seminole Tribe of Florida v. Florida, 116

S. Ct. 1114, 1125 (1996) (Congress had no power to unilaterally abrogate state’s Eleventh

Amendment sovereign immunity when the act in question was not “passed pursuant to a

constitutional provision granting Congress the power to abrogate”). Plaintiffs’ claims

against the State of New Mexico are barred by the Eleventh Amendment.




       2
          The district court also determined plaintiffs failed to “make allegations sufficient
to assert a claim against the State defendants under the New Mexico Tort Claims Act and
that there is no basis on which plaintiffs can assert a claim against the State defendants
under the Federal Tort Claims Act.” Appellants’ App. 441-42. Because the Eleventh
Amendment bars plaintiffs’ claims in federal court against the State of New Mexico, we
need not reach the other bases for that dismissal.

                                             -3-
                                             II

       We next turn to plaintiffs’ FTCA claim against the United States. The FTCA

provides a broad waiver of sovereign immunity for “the negligent or wrongful act or

omission” of any government employee acting in the scope of his or her employment to

the extent that a private person would be liable in similar circumstances under state law.

See 28 U.S.C. § 1346(b). This waiver of immunity is limited, however, because the

government is not liable for

       [a]ny claim based upon an act or omission of an employee of the
       Government, exercising due care, in the execution of a statute or regulation,
       whether or not such statute or regulation be valid, or 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.

Id. § 2680(a). The second clause of the statute contains the “discretionary function

exception” at issue here.

       The Supreme Court in Berkovitz v. United States, 486 U.S. 531 (1988), set out a

two-step test to determine when the discretionary function exception applies.

       The first step of the Berkovitz test requires this court to determine whether
       the challenged conduct “involves an element of judgment or choice,” in
       which case it is discretionary and falls within the language of the exception,
       or whether it involves “a federal statute, regulation, or policy [that]
       specifically prescribes a course of action for an employee to follow,” in
       which case the exception does not apply. Berkovitz, 486 U.S. at 536.

              If the conduct involves discretionary judgment under the first step of
       Berkovitz, then we must apply the second step, which requires this court to
       “determine whether that judgment is the kind that the discretionary function
       exception was designed to shield.” Id. The exception protects only those

                                            -4-
       discretionary actions or decisions which are “based on considerations of
       public policy.” Id. at 537. The purpose is to “prevent judicial ‘second-
       guessing’ of legislative and administrative decisions grounded in social,
       economic, and political policy through the medium of an action in tort.” Id.
       at 536-37 (quoting [United States v.] Varig Airlines, 467 U.S. [797] at 814
       [1984]).

Kiehn v. United States, 984 F.2d 1100, 1102-03 (10th Cir. 1993) (parallel citations

omitted).

       We review the district court’s determination of the applicability of the

discretionary function de novo, and in doing so consider not only the allegations in the

complaint but the affidavits, depositions, and other evidence in the record. Gotha v.

United States, 115 F.3d 176, 179 (3d Cir. 1997). Because there was no trial--the district

court having entered summary judgment--we determine only whether the district court has

jurisdiction; we make no judgment on the merits of the case.

       The first step of the Berkovitz test requires us to determine whether there was a

discretionary decision. Plaintiffs camped on the Quemado Lake Dam emergency spillway

in Gila National Forest, administered by the United States Forest Service, Department of

Agriculture. The State of New Mexico constructed the dam and spillway under an

agreement with the Forest Service. Construction entailed cutting out a part of a

mountain; a state road was then built on an easement through the spillway. On one side

of the road were designated parking spots for vehicles; plaintiffs camped on the other side

of the road at the bottom of the cut-away slope. The Forest Service admitted that it

allowed camping in that area although no sign designated it as a camping area. In fact,

                                            -5-
plaintiffs, who came to camp with two other families, set up camp there around an

existing fire ring.

       Plaintiffs alleged that the Forest Service and State of New Mexico, which jointly

operated the Quemado Lake area, knew that large rocks falling from the mountain

presented a danger to people camping there. Plaintiffs presented affidavits and deposition

testimony that maintenance crews removed rocks from the area, Appellants’ App. 133,

135, 137-38, 176, 222, 421, and thus defendants had notice of the danger, see also id. at

397-98. Plaintiffs asserted that the Forest Service had a duty to put up a sign warning of

the danger of falling rocks, install a protective fence, or prohibit camping in the area.

       The parties agree, as do we, that under the first step of the Berkovitz test there was

no “federal statute, regulation, or policy [that] specifically prescribe[d] a course of action”

for the Forest Service employees to follow.3 See United States v. Gaubert, 499 U.S. 315,

322 (1991) (quoting Berkovitz, 486 U.S. at 536). The relevant Forest Service Manual

(FSM) states that the policy was to “provide safe and healthful facilities for visitors,”




       3
         The Quemado Dam was in a national forest, established for “outdoor recreation,
range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528. The Forest
Service has broad discretion to administer the forests to preserve natural resources for
present and future generations. See 16 U.S.C. § 1600(6). “The Forest Supervisor is
responsible for the long range sign programs on the Forest.” Forest Service Manual
(FSM) § 7160.43 (Appellants’ App. 343); see also FSM § 7160.42b (Appellants’ App.
342). The Gila Supplement provided that signs “will be allowed at appropriate
locations.” Appellants’ App. 348.

                                             -6-
§ 6703(3) (Appellants’ App. 336). The Gila Supplement to the Forest Service Manual

provides:

       The Gila National Forest signing objectives shall be to safely guide,
       regulate, warn or advise the public and to provide uniformity and continuity
       in signing procedures throughout the Forest including signs and posters
       erected by individuals or organizations under Special Use Permits.

FSM, Gila Supp. § 7160.2 (Appellants’ App. 343) (emphasis added); see also FSM

§ 7160.2 (Appellants’ App. 340) (objectives of sign and poster program are to provide

information for “the safety, enjoyment, and convenience” of forest users).

       While these manuals emphasize safety and appropriate warnings they are not

specific enough to eliminate the Forest Service employees’ choice regarding how to act in

particular circumstances. As the District of Columbia Circuit noted, “[d]espite the

pervasiveness of regulation, government policies will almost always leave some room for

individual choice . . . . But not all actions that require choice--actions that are, in one

sense, ‘discretionary’--are protected as ‘discretionary functions’ under the FTCA.” Cope

v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995).

       That brings us to the second step of the Berkovitz test, which requires the court to

“determine whether that judgment is of the kind that the discretionary function exemption

was designed to shield.” Berkovitz, 486 U.S. at 536. “Decisions that require choice are

exempt from suit under the FTCA only if they are ‘susceptible to policy judgment’ and

involve an exercise of ‘political, social, [or] economic judgment.” Cope, 45 F.3d at 448



                                              -7-
(quoting Gaubert, 499 U.S. at 325). Justice Scalia, concurring in Gaubert, noted that the

courts have had difficulty applying this “policy” aspect of the test. See 499 U.S. at 335.

       One of the problems, as Cope recognized, is that nearly every governmental action

is, to some extent, subject to policy analysis--to some argument that it was influenced by

economics or the like. An added difficulty is that a failure to act can be a policy decision;

and a failure to think about acting may still be “susceptible to policy analysis” as

contemplated by Gaubert. 499 U.S. at 324-25. Further, in applying the discretionary

function exception we do not consider whether the decision or nondecision was negligent

or wrong. See 28 U.S.C. § 2680(a) (exception applies “whether or not the discretion

involved be abused”).

       This permits the government to argue, as it appears to do here, that decisions--or

nondecisions--that involve choice and any hint of policy concerns are discretionary and

within the exception. We agree with the D.C. Circuit that “[t]his approach . . . would not

only eviscerate the second step of the analysis set out in Berkovitz and Gaubert, but it

would allow the exception to swallow the FTCA’s sweeping waiver of sovereign

immunity.” Cope, 45 F.3d at 449. We must ask if the decision or nondecision implicates

the exercise of a policy judgment of a social, economic or political nature. See Gotha,

115 F.3d at 180 (disavowal of “decision in fact” not determinative; test is whether nature

of action taken or not taken is type susceptible to policy analysis). The Gaubert court

recognized that


                                             -8-
       [t]here are obviously discretionary acts performed by a Government agent
       that are within the scope of his employment but not within the discretionary
       function exception because these acts cannot be said to be based on the
       purposes that the regulatory regime seeks to accomplish. If one of the
       officials involved in this case drove an automobile on a mission connected
       with his official duties and negligently collided with another car, the
       exception would not apply. Although driving requires the constant exercise
       of discretion, the official’s decisions in exercising that discretion can hardly
       be said to be grounded in regulatory policy.

499 U.S. at 325 n.7.

       The bulk of the cases holding that the discretionary function exception applied

involved readily identifiable public policy decisions. See, e.g., Daigle v. Shell Oil Co.,

972 F.2d 1527, 1537-38 (10th Cir. 1992) (decision on how to contain environmental

contaminants while protecting public health involved essence of policy choices protected

by discretionary function exception). In a national forest, wilderness area, or national

park, there are situations in which both known and unknown hazards exist and in which a

deliberate decision is made not to warn against or eliminate the hazard. See, e.g., Kiehn

v. United States, 984 F.2d 1100, 1105 (decision not to place warning signs on unstable

rock formations at petroglyph site was part of policy to protect natural scenery); Johnson

v. United States Dep’t of Interior, 949 F.2d 332, 338 (10th Cir. 1991) (Park Service

decision not to post warnings concerning dangers of mountain climbing in Grand Tetons

was based on policy of leaving experience as wilderness); Zumwalt v. United States, 928

F.2d 951, 953 (10th Cir. 1991) (decision to warn of danger of caves in Pinnacles National

Monument in pamphlet but not to erect warning signs was part of policy to maintain trail


                                             -9-
in wilderness state). In these situations the decision not to erect signs or eliminate a

hazardous condition is justified by the policy of preserving the area in its pristine

condition to protect the wilderness experience of the visitors.

       This court and other circuits, however, have held decisions or nondecisions

involving choice were not within the discretionary function exemption. See, e.g., Boyd v.

United States, 881 F.2d 895, 898 (10th Cir. 1989 ) (Army Corp of Engineers’ “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 is properly concerned”); Smith v. United States, 546 F.2d 872, 876-77 (10th

Cir. 1976) (failure to warn of the hazards of thermal pool in national park); Gotha, 115

F.3d at 181-82 (failure to provide safeguards on a footpath on a Navy underwater tracking

range); Cope, 45 F.3d at 451-52 (failure to post adequate warning signs on road

maintained by the National Park Service). In each of these cases the court could not

perceive in the record before it any significant social, economic or political policy in the

action or inaction that allegedly contributed to the injury giving rise to the lawsuit. In

these cases a specific hazard existed, distinct from the multitude of hazards that might

exist in, for example, a wilderness trail through a national park or forest, where warnings

might detract from the area’s character or safety structures might be costly.

       At oral argument we inquired whether the government defended its inaction in the

instant case on the basis of economics--a budgetary crunch or the like. The response was


                                            - 10 -
that no economic factors influenced the decision or nondecision. Cf. Domme v. United

States, 61 F.3d 787, 793 (10th Cir. 1995) (Henry, J., concurring) (“insufficient

government resources alone do not a discretionary function make”). Based on the record

before us, here there was a specific hazard distinct from other hazards generic to a

national forest. A cut was made through a mountainside resulting in a slope from which

boulders rolled down from time to time. The boulders landed near the road that had been

made through the cut for the specific purpose of providing ingress to and egress from a

nearby lake. The Forest Service encouraged vehicles to park along this road by providing

marked parking lines, see Appellants’ App. 175, and various improvements, Appellees’

Supp. App. 19. It did not discourage individuals from selecting the area plaintiffs chose

for camping, and, indeed, campers had used the area for many years. No literature or

signs warned against the hazard of the rolling boulders.

       A warning sign or a sign prohibiting camping at the site because of the danger

would cost little. A protective fence might be costly, but the government does not defend

the case based on an economic decision. The district court found that the decision not to

warn was a policy decision that furthered the Forest Service objective of “resource

allocation, forest management, and preserving a natural state of appearance of the Gila

National Forest.” Appellants’ App. 442. But our review of the record reveals no evidence

by the government of any social or political justification. It simply relies on the

presumption that there was some policy reason for the failure to do anything at the site.


                                            - 11 -
In Gotha, the Third Circuit stated that the routine safeguard on a footpath at issue there

was

       a mundane, administrative, garden-variety, housekeeping problem that is
       about as far removed from the policies applicable to the Navy’s mission as
       it is possible to get . . . . It is difficult to conceive of a case more likely to
       have been within the contemplation of Congress when it abrogated
       sovereign immunity than the one before us.

115 F.3d at 181-82. In Cope, the D.C. Circuit rejected claims of “engineering judgment”

and “aesthetic considerations,” holding that having “chosen to manage the road [through

a park] in a manner more amenable to commuting through nature than communing with it

. . . and having taken steps to warn users of dangers inherent in that use, the Park Service

cannot argue that its failure to ensure that those steps are effective involves protected

‘discretionary’ decisions.” 45 F.3d at 452.

       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.” Id. Thus, we

REVERSE the district court’s dismissal of plaintiffs’ claims against the federal

government. We AFFIRM its dismissal of plaintiffs’ claims against the State of New

Mexico. We REMAND for further proceedings in accordance with this opinion.




                                              - 12 -
No. 95-2281, Duke v. Department of Agriculture

Briscoe, Circuit Judge, concurring and dissenting:

      I concur in part and dissent in part. I agree that plaintiffs’ claims against

the State of New Mexico are barred by the Eleventh Amendment. However,

contrary to the majority, I would affirm the district court’s dismissal of the claim

against the United States under the discretionary function exception to the Federal

Tort Claims Act, 28 U.S.C. § 2680(a).

      The facts of this case are tragic. Six-year-old Joel Ray Duke was severely

injured when a boulder rolled down an embankment and crushed his skull while

he was camping with his family in the emergency spillway for Quemado Lake

Dam during a heavy rainstorm. As the majority notes, it would have cost little to

erect a warning sign or a sign prohibiting camping. However, application of the

discretionary function exception does not depend on the magnitude of the injury

or the ease with which it could have been prevented. When the exception applies,

it applies without regard to whether the discretion involved is abused. 28 U.S.C.

§ 2680(a).

      We use the two-prong analysis of Berkovitz v. United States, 486 U.S. 531

(1988), to determine whether the discretionary function exception applies to cases

brought pursuant to the FTCA. We first determine “whether the action at issue

was one of choice for the government employee” or agency. Tippett v. United

States, 108 F.3d 1194, 1196 (10th Cir. 1997). I agree with the majority that this
first step is satisfied in this case. The second prong of the Berkovitz test requires

an inquiry into whether the judgment at issue is of the type the exception is

designed to shield. Id. The focus of our analysis is the nature of the action taken

and whether it is subject to policy analysis. Only decisions susceptible to policy

analysis are protected by the discretionary function exception. Id. at 1197-98.

      Where the record shows policy considerations implicitly or explicitly weigh

in the decision not to erect warnings, the discretionary function exception applies

without regard to whether the specific danger involved was known. See Zumwalt

v. United States, 928 F. 2d 951, 955-56 (10th Cir. 1991); see also Kiehn v. United

States, 984 F.2d 1100, 1104 (10th Cir. 1993). Thus, where the decision not to

place warning signs is part of some “overall policy,” the discretionary function

exception applies. E.g., Kiehn, 984 F.2d at 1104; Zumwalt, 928 F.2d at 955; see

Childers v. United States, 40 F.3d 973, 975 (9th Cir. 1995) (failure to place signs

part of overall park service plan; discretionary function exception applies).

      The majority rejects the government’s argument that the second prong of

the Berkovitz test is satisfied, finding “[a]t this stage the government has not

shown how failure to warn or protect from 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.’” Majority op. at 12. Thus, the

majority places the burden of establishing the second prong of the discretionary


                                          -2-
function exception on the government. The majority also looks to whether the

particular injury involved actually implicated policy concerns. I respectfully

disagree with the majority’s approach in both instances. First, when the

challenged government action passes the first prong of the Berkovitz test--when

the government agent is permitted to exercise discretion--“it must be presumed

that the agent’s acts are grounded in policy when exercising that discretion. For a

complaint to survive a motion to dismiss, it must allege facts which would

support a finding that the challenged actions are not the kind of conduct that can

be said to be grounded in the policy of the regulatory regime.” Gaubert, 499 U.S.

at 324-25. In relying on the government’s failure to present proof, the majority

ignores the presumption to which the government is entitled under Gaubert. In

addition, by concentrating on whether the failure to warn of a particular danger

was actually based on policy reasons, the majority ignores that our inquiry is

whether the type of action in question is “susceptible to policy analysis,” and not

whether policy analysis is the actual reason for the decision in question. “The

focus of the inquiry is not on the agent’s subjective intent in exercising the

discretion . . . but on the nature of the actions taken and on whether they are

susceptible to policy analysis. Id. at 325. Consequently, “[t]he lack of record

evidence describing an analysis of public policy factors in the . . . decision not to




                                          -3-
post warnings,” which the majority relies on, “is immaterial.” Kiehn, 984 F.2d at

1105.

        The government asserts broadly that its discretionary decision regarding

“warning signs, fences, or other closures require[s] consideration of public policy

factors.” Appellees’ br. at 17. Cf. Childers v. United States, 841 F. Supp. 1001,

1016 (D. Mont. 1993), aff’d 40 F.3d 973 (9th Cir. 1995) (decisions “inherently

require” balancing of public policy). The government offers no policy-specific

considerations involved in the challenged decisions of the forest service. Rather,

the government rests on the presumption of policy-based reasoning as described

in Gaubert and applied by this court in Kiehn and Daigle v. Shell Oil Co., 972

F.2d 1527, 1542 (10th Cir. 1992). Plaintiffs do not argue they have presented

evidence sufficient to overcome this presumption.

        Two particular cases in this circuit stand out as arguably inconsistent with

giving the government the benefit of a presumption of policy-based reasoning in

failing to erect warning signs. In Smith v. United States, 546 F.2d 872, 874 (10th

Cir. 1976), plaintiff fell into a super-heated thermal pool at Yellowstone National

Park. He filed a FTCA claim, alleging the park service failed to provide adequate

warnings and failed to erect guardrails and other precautions. Despite the

government’s contention that the decision not to provide warning signs

implemented a policy to conserve the scenery and leave the area undeveloped, this


                                          -4-
court held the discretionary function exception did not apply. Id. at 876-77.

Although our current jurisprudential approach to the discretionary function

exception would not follow the same reasoning, we have not overruled or

criticized Smith, but instead have said it stands for the limited proposition that

failure to warn resulting only from failure to recognize a potentially dangerous

condition does not implicate a policy analysis and does not invoke the

discretionary function exception. See, e.g., Zumwalt, 928 F.2d at 955 n.5; see

also Summers v. United States, 905 F.2d 1212 (9th Cir. 1990) (failure to warn

based on failure to consider danger, rather than direct choice not to erect sign for

policy reasons not protected as discretionary function). The present case does not

come within the rule we extract from Smith, a rule which we have yet to apply.

See Weiss v. United States, 889 F.2d 937, 939 n.2 (10th Cir. 1989) (fact that

failure to warn was result of failure to consider issue was of no moment where

policy-based decision implicitly precluded warning). Plaintiffs’ case here is

premised on the allegation that the government had knowledge of the dangerous

condition of the area in which plaintiffs camped but negligently failed to act.

They do not maintain, as the Smith rule would require, that the government

simply failed to detect the danger without regard to policy considerations. In

ruling on the government’s initial motion for summary judgment, the district court

ruled the evidence established the government knew of the dangerous condition.


                                          -5-
      In Boyd v. United States, 881 F.2d 895 (10th Cir. 1989), a swimmer was

injured by a boat and claimed the government had a duty to warn of the danger

since the government permitted boating in known swimming areas. This court

rejected the government’s argument that a decision whether to warn was a policy

decision linked to the decision of what activities would be allowed in the area.

This court found the decision regarding warnings was independent of the decision

regarding permissible activities. In Boyd, the government apparently identified

no policy directly related to a failure to warn swimmers of known dangers. Like

Smith, we have consistently distinguished Boyd in subsequent cases, while

simultaneously finding it good law on the proposition that when no policy

considerations could be identified in connection with a failure to warn, the

discretionary function exception is inapplicable. See, e.g., Zumwalt, 928 F.2d at

955 n.6. However, Boyd and the rule now extracted from Boyd do not integrate

the presumption of policy-based reasoning subsequently explained by the Supreme

Court in Gaubert and applied by this court in Kiehn.

      Resolution of this case turns on whether we are willing, as I am, to permit a

presumption that the government’s inaction was based in policy as required by the

Supreme Court in Gaubert, or whether we are willing instead, as the majority is,

to hold absence of affirmative evidence of policy reasoning in the record defeats

the discretionary function exception as in this court’s earlier case of Boyd. Even


                                         -6-
if Boyd remains good law, after Gaubert it can be readily distinguished from this

case. In Boyd, the government did not proffer and the court could not find that

policy-based reasoning could be involved in the decision not to erect the warning

sign at issue. Here, the government does not proffer a specific policy-based

reason for the decision at issue but rather relies on the general statutes and

regulations concerning forest management to argue its decisions regarding

signage and safety are within the realm of discretion bounded by these statutes

and regulations.

      Guided by the language in Gaubert, 499 U.S. at 324-25, that “[f]or a

complaint to survive a motion to dismiss, it must allege facts which would

support a finding that the challenged actions are not the kind of conduct that can

be said to be grounded” in policy, I would affirm. Plaintiffs’ theory of liability is

premised on the government’s knowledge of the danger. We cannot say decisions

concerning how various dangers on public lands are ameliorated are the type of

actions that cannot be said to be grounded in social, economic, or political policy.

It is enough that forest service policies on signage and safety are sufficiently

broad to permit the forest service to take public policy goals into account. See

Gaubert, 499 U.S. at 324-25; Childers, 40 F.3d at 974 n.1 (citing Gaubert for

proposition that “[a]ll that is required is that the applicable statute or regulation

gave the government agent discretion to take policy goals into account”). In


                                           -7-
applying the second prong of the Berkovitz test, it is critical to keep in mind its

purpose to “prevent judicial ‘second guessing’ of legislative and administrative

decisions grounded in social, economic, and political policy through the medium

of an action in tort.” 486 U.S. at 536-37. Considering the manifold potential

dangers in public lands, whether arising by natural processes or, as here, by a

combination of natural processes and human intervention, there is an element of

judicial second-guessing of an administrative decision in a judicial determination

concerning which dangers limited resources should be used to addressed.

      I would affirm the district court’s dismissal of this case.




                                          -8-
