                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3466
                                  ___________

Louis Winston; Angela Winston, a    *
minor, by Louis Winston, her father *
and next friend,                    *
                                    * Appeal from the United States
           Appellants,              * District Court for the
                                    * Northern District of Iowa.
      v.                            *
                                    *      [UNPUBLISHED]
Jackson County Conservation Board, *
                                    *
           Appellee.                *
                               ___________

                            Submitted: May 17, 2002
                                Filed: June 14, 2002
                                 ___________

Before BOWMAN, MAGILL, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       Angela Winston and Louis Winston, Angela's father (collectively "the
Winstons"), appeal the district court's1 adverse grant of summary judgment in favor
of the Jackson County Conservation Board (the "Board") on the Winstons' claim of
negligence by the Board in failing to adequately supervise and maintain a public

      1
       The Honorable Michael J. Melloy, then United States District Judge for the
Northern District of Iowa, now United States Circuit Judge for the United States
Court of Appeals for the Eighth Circuit.
swimming area under the Board's control. This case arises out of a boating accident
in which Angela was struck and seriously injured by an intoxicated boat operator
while swimming in a lake adjacent to a park operated by the Board. The district court
held that the Board was immune from liability based on discretionary function
immunity pursuant to Iowa Code § 670.4(3) (1998). The Winstons timely appealed.
We affirm.

      We review a grant of summary judgment de novo. C.R.S. v. United States, 11
F.3d 791, 795 (8th Cir. 1993). Having considered the parties' arguments on appeal
and reviewed the applicable law, we are satisfied the district court correctly applied
the controlling state law and that the record supports the district court's ruling.

       First, contrary to the Winstons' assertion, the district court correctly found that
Iowa Code § 670.4(3) is applicable to this case and immunizes acts of discretion in
the performance of governmental functions or duties, whether or not the discretion
is abused and whether or not negligence is alleged to have occurred. See Iowa Code
§ 670.4(3); Goodman v. City of Le Claire, Iowa, 587 N.W.2d 232, 235 (Iowa 1998).
The Winstons argue, however, that § 670.4(3) is inapplicable to this case because the
Board was aware of the hazards to which park users were exposed when swimming
in the lake, and therefore did not have a choice in whether to take any remedial
measures with respect to the intermingling of boaters and swimmers. We find the
Winstons' argument to be a misunderstanding of the scope of the discretionary
function exception and an improper entanglement of issues of negligence with the
determination of whether the discretionary function exception applies.

      Second, Iowa has adopted the Berkovitz two-step analysis in determining
whether a challenged action falls within the discretionary function exception. See
Goodman, 587 N.W.2d at 238 (citing Berkovitz v. United States, 486 U.S. 531
(1988)). Third, the Winstons are unable to identify any specific and clear policy
statement issued by the Board addressing the nature of the challenged conduct, i.e.,

                                           -2-
the adequacy of the safety precautions. Therefore, the conduct at issue is
discretionary. See Chantal v. United States, 104 F.3d 207, 210 (8th Cir. 1997) (step
one of the Berkovitz test). Finally, the element of judgment involved in the conduct
at issue in this case is clearly susceptible to policy analysis. See C.R.S., 11 F.3d at
796 (step two of the Berkovitz test). The Winstons contend, however, that the burden
of proof is on the Board to demonstrate that its decision was grounded in policy.
Even assuming, however, that the record fails to show that the Board in fact
considered public policy factors, the relevant inquiry is merely whether the conduct
at issue is susceptible to policy analysis. Id. Here, the issue of whether to purchase
and place speed restriction buoys along the shoreline is clearly susceptible to policy
analysis. The Board could have considered a wide range of policy factors in making
its decision; whether it actually did so is immaterial. Id. at 798.

       In sum, the challenged conduct at issue in this case is discretionary and
susceptible to policy analysis. Thus, summary judgment was properly granted in
favor of the Board based on discretionary function immunity. Accordingly, we affirm
on the basis of the well-reasoned opinion of the district court. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -3-
