Ball v. United States

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 31, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

LOGAN BALL; ELIZABETH BALL;
ESTATE OF SARAH BALL,

Plaintiffs - Appellants,
No. 19-1161
v.

UNITED STATES OF AMERICA,

Defendant - Appellee.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-01461-REB-NRN)
_________________________________

Randall M. Weiner, Law Offices of Randall M. Weiner, P.C., Boulder, Colorado
(Annmarie Cording, Law Offices of Randall M. Weiner, P.C., Boulder, Colorado on the
briefs) on behalf of Plaintiffs-Appellants.

Casen B. Ross, Appellate Staff, Civil Division, United States Department of Justice,
Washington, D.C. (Mark B. Stern, Appellate Staff, Civil Division, United States
Department of Justice, Washington, D.C., Joseph H. Hunt, Assistant Attorney General,
and Jason R. Dunn, United States Attorney, Washington, D.C. on the briefs) on behalf of
the Defendant-Appellee.
_________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.
_________________________________

HARTZ, Circuit Judge.
____________________________________
 Shortly before 3:00 a.m. on June 12, 2016, Sarah Ball was killed when the car in

which she was a passenger drove off United States Forest Service Road 456.1A and over

an earthen mound before falling into an abandoned mine shaft about 20 feet off the road.

Her parents and her estate (Plaintiffs) brought suit against the United States under the

Federal Tort Claims Act (FTCA), raising several causes of action alleging negligence by

the United States Forest Service. The United States District Court for the District of

Colorado granted the government’s motion to dismiss for lack of subject-matter

jurisdiction, ruling that the government was immune from liability under the

discretionary-function exception to the FTCA. Plaintiffs appeal. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

The accident took place in the Arapaho and Roosevelt National Forests and

Pawnee National Grassland (the Forest) within Region 2 of the National Forest System,

which contains lands within five states. The area of the Forest exceeds 1.5 million acres.

In Region 2 there are an estimated 11,500 remnants of abandoned mines (commonly

referred to as abandoned-mine features), such as adits (the mine entrances), mine shafts,

quarries and pits, tailing piles, and buildings. A 1993 survey identified 1329 such

features in the Forest. There are over 2600 miles of road in the Forest, of which 1987

miles, including Forest Service Road 456.1A, are designated as Maintenance Level 2

roads.

The Forest Service Handbook describes the Level 2 designation as follows:

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 Assigned to roads open for use by high clearance vehicles. Passenger car
traffic, user comfort, and user convenience are not considerations. Warning
signs and traffic control devices are not provided with the exception that
some signing, such as W-18-1 “No Traffic Signs,” may be posted at
intersections. Motorists should have no expectations of being alerted to
potential hazards while driving these roads. Traffic is normally minor,
usually consisting of one or a combination of administrative, permitted,
dispersed recreation, or other specialized uses. Log haul may occur at this
level. Appropriate traffic management strategies are either to:
a. Discourage or prohibit passenger cars, or
b. Accept or discourage high clearance vehicles

Aplt. App., Vol. I at 60 (emphasis added). The Forest Service Guidelines for Road

Maintenance Levels similarly explain that Level 2 roads are “not suitable for passenger

cars” and “[d]o not always provide motorists with alerts to potential hazards.” Id. at 142.

The publicly available Motor Vehicle Use Map prepared by the Forest Service for

visitors to the Forest further states that “[m]aintenance of designated roads and trails will

depend on available resources, and many may receive little maintenance.” Id. at 61. The

map also counsels that “[m]otor vehicle use, especially off-highway vehicle use, involves

inherent risks that may cause property damage, serious injury, and possible death to

participants.” Id.

A Forest Service official submitted a sworn declaration explaining that the

selection of which road-maintenance projects get funding requires balancing several

priorities, including repairing roads with severe damage, maintaining roads where the

Forest Service anticipates an upcoming project, and maintaining roads frequently used by

the public for recreational activities. On average for the years between 2013 and 2017,

the Forest Service had funding to perform maintenance of only 122 of the 1987 miles of

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Level 2 roads in the Forest. Road 456.1A, however, has been considered to be in

acceptable condition for its Level 2 classification and thus has not been designated for

any maintenance or repair.

Not until 1998 did Congress make funds available to address the physical-safety

hazards, as opposed to environmental concerns, posed by abandoned mines. The

inventory of abandoned mines on Forest Service land and the mitigation of their hazards

are conducted through the Environmental Compliance and Protection and Abandoned

Mine Lands (ECAP/AML) Program. The Program’s Forest-level managers request

funding for specific projects from the Region manager who allocates available funds. As

the Region 2 manager explained in his sworn declaration, “Funding for mitigating

potential physical safety hazards associated with abandoned mine sites is limited and

competes with funding for other Forest Service programs and priorities.” Id. at 49.

If funding is obtained, the Forest-level manager has discretion on how to

administer the project, including whether to partner with state or local entities or private

organizations. In Colorado the Forest Service has a Master Participating Agreement with

the Colorado Division of Reclamation, Mining, and Safety to address the abandoned

mines in the state. Before any project can begin, the Forest Service must undertake

various environmental reviews, including those required by the National Environmental

Policy Act, and ensure compliance with agency standards, such as those in the Forest’s

own 1997 Land and Resource Management Plan, which has a standard to protect bats that

use mines. In Region 2 between 2008 and 2016 the Forest Service and its partners were

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able to mitigate only an average of 86 abandoned-mine features and associated hazards

each year, of the over 11,500 in the Region.

II. DISCUSSION

A. The FTCA

The FTCA provides a limited waiver of sovereign immunity. It allows private

parties to bring civil suits against the United States for personal injury or death caused by

the negligence or wrongful conduct of government employees within the scope of

employment. See 28 U.S.C. § 1346(b)(1); Kiehn v. United States, 984 F.2d 1100, 1102

(10th Cir. 1993). The United States can be held liable only “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).

There are also several statutory exceptions to the waiver of sovereign immunity.

In particular, the discretionary-function exception precludes holding the United States

liable for an act or omission “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). “The basis for the discretionary function exception was Congress’

desire to prevent the judicial second-guessing of legislative and administrative decisions

grounded in social, economic, and political policy through the medium of an action in

tort.” Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (internal quotation marks

omitted). The exception “marks the boundary between Congress’ willingness to impose

5
tort liability upon the United States and its desire to protect certain governmental

activities from exposure to suit by private individuals.” United States v. Varig Airlines,

467 U.S. 797, 808 (1984).

To determine whether this exception applies, we employ the two-part test set out

by the Supreme Court in Berkovitz. First, we “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.” Kiehn, 984 F.2d at 1102 (brackets omitted)

(quoting Berkovitz, 486 U.S. at 536).

If the conduct was discretionary, we move to the second step and ask “‘whether

that judgment is the kind that the discretionary function exception was designed to

shield.’” Id. at 1103 (quoting Berkovitz, 486 U.S. at 536). In particular, discretionary

decisions “grounded in the social, economic, or political goals of the [governing] statute

and regulations are protected.” United States v. Gaubert, 499 U.S. 315, 323 (1991). Or,

as this court has expressed the point, if the conduct “implicates the exercise of a policy

judgment of a social, economic, or political nature,” the discretionary-function exception

shields the government from liability. Duke v. Dep’t of Agric., 131 F.3d 1407, 1411

(10th Cir. 1997).

The Supreme Court has provided guidance on how courts should determine

whether this second prong is satisfied. “When established governmental policy, as

6
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.” Gaubert, 499 U.S. at 324 (emphasis added); see

Kiehn, 984 F.2d at 1105 (ordinarily we “will not assume a nonpolicy decision unless the

record shows something to the contrary”). That is, the complaint must be dismissed

unless it “allege[s] 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.

Further, “[t]he focus of the inquiry is not on the agent’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. at 325. Rather

than “ask[ing] whether policy analysis is the actual reason for the decision in question,”

we ask “categorically (rather than case specifically) whether the kind of conduct at issue

can be based on policy concerns.” Sydnes v. United States, 523 F.3d 1179, 1185 (10th

Cir. 2008) (internal quotation marks omitted) (in considering wrongful-termination claim

under the FTCA, we would “not inquire into the intent of the government supervisor

when making [the] specific personnel decision” but would ask instead whether “decisions

regarding employment and termination” generally require consideration of policy factors

(brackets and internal quotation marks omitted)). Thus, “it is unnecessary for

government employees to make an actual conscious decision regarding policy factors”

for the exception to apply. Kiehn, 984 F.2d at 1105 (internal quotation marks omitted).

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“In fact, we have found it irrelevant whether the alleged failure to warn was a matter of

deliberate choice, or a mere oversight.” Id. (internal quotation marks omitted). In light

of this approach, the absence of record evidence reflecting a policy analysis is

immaterial. See id. (upholding application of discretionary-function exception even when

government provided no evidence that National Park Service’s failure to post warnings in

remote areas of Dinosaur National Monument was a policy-based decision).

We review the applicability of the discretionary-function exception de novo. See

Duke, 131 F.3d at 1409.

B. Plaintiffs’ Theory of Negligence

Plaintiffs complain that traveling west on Road 456.1A (as was Ms. Ball) the road

appeared to divide into north and south forks near the abandoned mine shaft where the

accident occurred (the Mine Shaft). The north fork was the proper continuation of the

road, but Plaintiffs state that at the time of the accident the north fork was partially

blocked by tree limbs about 6 to 8 feet above the road. The apparent south fork, which

looked wider as one approached the intersection, was the path to the Mine Shaft.

Plaintiffs allege that the Forest Service negligently constructed, remedied, and maintained

Road 456.1A, creating dangerous conditions for drivers. In particular, they contend that

because the Forest Service knew about the Mine Shaft’s existence, it should have put up

warning signs or otherwise prevented vehicles from falling into it, such as by filling the

shaft or placing a barrier between the road and the hazard.

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 C. Application of Berkovitz Prong One

To begin, we ask whether any statute, regulation, or policy required the Forest

Service to take any of the precautions suggested by Plaintiffs. See Kiehn, 984 F.2d at

1102. If such an obligation existed, there would be no discretion for the exception (to the

waiver of sovereign immunity) to protect. See id. In claiming that the government

cannot advance past this first prong, Plaintiffs assert that § 2332.1 of the Forest Service

Manual mandated the Forest Service to warn or guard against the hazard posed by the

Mine Shaft.

Section 2332.1 requires that the agency do the following:

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 record of the inspections
and corrective actions taken with a copy of the operation and maintenance
plan.
Immediately correct high-priority hazards that develop or are
identified during the operating season or close the site.

Forest Service Manual § 2332.1 (emphasis added). We question whether the accident

occurred at a “developed recreation site.” Plaintiffs’ complaint alleges that Road 456.1A

is used to provide “access to dispersed camping sites,” Aplt. App., Vol. I at 16, and

their reply brief asserts that § 2332.1 applies to such camping sites. The United States,

however, contends that § 2332.1 is inapplicable because “developed recreation sites”

have amenities and facilities that are absent from the area around the Mine Shaft and

from dispersed camping sites.

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 But in any event, we need not consider Plaintiffs’ argument on the applicability of

§ 2332.1 because, as pointed out by the government, Plaintiffs failed to present it below.

In district court Plaintiffs never relied on, or even cited, § 2332.1. Because Plaintiffs

failed to preserve their argument below and have not argued for relief under plain-error

review, we consider the argument waived. See Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1130–31 (10th Cir. 2011).1

Plaintiffs offer three arguments against our finding of waiver. First, they assert

that the regulatory sources they relied on below (§§ 7730.5 and 7731 of the Forest

Service Manual and language from the Forest Service Guidelines for Road Maintenance

Levels, none of which they rely on in their briefs on appeal) were not intended to be

exclusive examples of maintenance and safety requirements applicable to Road 456.1A.

Second, they argue that because they relied on and the district court considered some

parts of the Forest Service Manual, we cannot ignore the Manual’s other provisions.

Third, they invoke the statement in United States v. Johnson, 821 F.3d 1194, 1199 (10th

Cir. 2016), that “[o]nce a federal claim is properly presented, a party can make any

argument in support of that claim; parties are not limited to the precise arguments they

made below.” Aplt. Reply Br. at 20.

We are not persuaded. All three arguments rest on a misconception of the nature

of appellate review. The proceedings in district court are not just a rehearsal, a dry run,

1
The United States argues that Plaintiffs waived any challenge to the district court’s
holding on the first Berkovitz prong by failing to raise it in their opening brief. Because
we reject the challenge on a narrower ground, we need not address the issue.
10
for the ultimate performance on appeal, where the parties can discard what did not work

below and introduce new scenes for a new audience. We review the case litigated below,

not the case fleshed out for the first time on appeal. In fairness to opposing parties and to

prevent further burden on overburdened courts caused by interminable litigation, we

expect parties “to give it everything they’ve got at the trial level.” Fish v. Kobach, 840

F.3d 710, 730 (10th Cir. 2016) (internal quotation marks omitted). As we said when

explaining the limitations of the language quoted above from Johnson, “Theories—as

opposed to the overarching claims or legal rubrics that provide the foundation for them—

are what matters.” Id.

Plaintiffs’ present reliance on § 2332.1 is not the addition of a mere nuance to the

Berkowitz prong-one arguments made below (which were not pursued on appeal). It is a

new theory. And adding it would be particularly unfair to the government in this case

because it has had no opportunity to make a record regarding the meaning of § 2332.1.2

D. Application of Berkovitz Prong Two

Because Plaintiffs have failed to show that a policy, statute, or regulation required

the Forest Service to take the actions suggested by Plaintiffs, we advance to the second

Berkovitz prong. At this step we ask whether the Service’s decision not to post a warning

sign or make site improvements at the Mine Shaft is the kind of judgment “that the

discretionary function exception was designed to shield,” Berkovitz, 486 U.S. at 536—

2
The United States claimed at oral argument that it has evidence establishing that the
accident site is not a “developed recreation site” to which the duties in § 2332.1 apply,
but that it did not offer this evidence in district court because Plaintiffs did not rely on
§ 2332.1 below.
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that is, whether the decision “implicates the exercise of a policy judgment of a social,

economic, or political nature,” Duke, 131 F.3d at 1411.

Plaintiffs argue that the second prong is not satisfied because the United States

failed to provide evidence showing that the Forest Service’s decision not to warn or

otherwise protect against the hazard posed by the Mine Shaft and Road 456.1A was

grounded in policy considerations. But this contention is misguided in at least two

respects.

First, Plaintiffs misunderstand the relevant burden. As the Supreme Court said in

Gaubert, we presume that a government agency’s acts are grounded in policy when no

statute, regulation, or policy sets forth a required course of conduct; the challenger must

allege facts showing otherwise. See 499 U.S. at 324–25. Having already determined that

the first Berkowitz prong was met, we presume that the Forest Service’s decision-making

was policy-based unless Plaintiffs direct us to facts to the contrary.

Second, Plaintiffs incorrectly describe the nature and scope of the second-prong

inquiry. “Application of Berkovitz’s second prong does not require proof of the thought

processes of the pertinent decisionmakers.” Elder v. United States, 312 F.3d 1172, 1182

(10th Cir. 2002). Rather, the focus of the inquiry is more generally “on the nature of the

actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S.

at 325.

To the extent that Plaintiffs contend that our decision in Hardscrabble Ranch,

L.L.C. v. United States, 840 F.3d 1216 (10th Cir. 2016), held that evidence of the

12
agency’s thought processes is required, they misread that opinion. The plaintiffs’ FTCA

claim in that case challenged the Forest Service’s response to a fire that damaged their

property. See id. at 1217. The plaintiffs attempted to rebut the Gaubert presumption by

arguing that the Forest Service failed to follow its own “Decision Checklist,” which

guides the Service’s response to wildfires, and by criticizing other aspects of the

response. See id. at 1222. We explained, however, that the Service’s actual response to

the fire was not our focus. See id. Instead, the second Berkowitz prong was satisfied

because “the [Forest Service] actions in fighting the Sand Gulch Fire [were] susceptible

to a policy analysis grounded in social, economic, or political concerns,” namely “the

balancing of the needs to protect private property, ensure firefighter safety, reduce fuel

levels, and encourage natural ecological development.” Id. We noted that these concerns

were consistent with those raised by questions in the Decision Checklist and the Forest

Service’s formal Incident Decision regarding the fire. See id. at 1222–23. But we did not

say that the expression of policy rationales in the Decision Checklist and Incident

Decision was necessary to satisfy the second prong. Those documents simply confirmed

the relevance of the policy concerns we identified.

In sum, our inquiry here is whether the Forest Service’s decisions about warning

or guarding against the dangers posed by off-road hazards, including abandoned-mine

features, implicate protected policy judgments. It is not, as Plaintiffs argue, whether

there is evidence that the inaction specific to the Mine Shaft and Road 456.1A was

13
grounded in policy. And following Gaubert, we presume that the Forest Service’s

decision-making was policy-based.

In an effort to show that policy considerations did not underlie Forest Service

inaction with respect to warning signs or barriers, Plaintiffs point to the declarations

offered by several Forest Service officials. Plaintiffs observe that although the

declarations addressed several issues directly tied to the negligence alleged by Plaintiffs

in their complaint (such as deficient road maintenance and failure to fill in abandoned

mines), the declarations make no specific mention of warning signs or barriers. Plaintiffs

contend that this omission therefore suggests that no policy-based reasoning informed the

Forest Service’s decision not to use such safety measures.

It is not unreasonable to infer that when an agency provides policy reasons for

some decisions, its failure to identify policy reasons for other, related decisions may

suggest that none exist. Still, the failure of the declarations to mention concerns specific

to warnings signs and barriers does not negate the Gaubert presumption. See 499 U.S. at

324–25 (presumption is triggered whenever regulatory scheme allows agency or official

to exercise discretion). Further, as we explain below, the Forest Service’s decisions

whether to employ warning signs or barriers are susceptible to the types of policy

analysis protected by the discretionary-function exception—even if not spelled out in the

declarations.

Our precedents have regularly applied the discretionary-function exception to

protect a decision not to post warning signs on land managed for public recreation when

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the decision “inherently requires a balancing of public policy objectives, such as resource

allocation, visitor safety and scenic preservation.” See Kiehn, 984 F.2d at 1105;3 see also

Johnson v. U.S. Dep’t of Interior, 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. This decision cannot be divorced from the overall policy not

to engage in strict regulation of climbing activity in the Park.”); Zumwalt v. United

States, 928 F.2d 951, 955 (10th Cir. 1991) (decision not to post warnings along trail “was

part of the overall policy decision to maintain the Trail in its wilderness state”).

Other appellate courts have adopted the same approach. The Eleventh Circuit’s

decision in Autery v. United States, 992 F.2d 1523 (11th Cir. 1993) is instructive. A tree

in Great Smokey Mountain National Park had fallen on a car, killing the driver and

injuring the passenger. See id. at 1524. The surviving passenger and the administratrix

of the driver’s estate sued the United States under the FTCA, alleging that the National

Park Service was negligent in its inspection of potentially hazardous trees and its

response to discovering such hazards. See id. After determining that no policy, statute,

3
Plaintiffs suggest that prioritization of resources cannot by itself be a sufficient policy
reason for failure to act. For that proposition they cite Boyd v. United States ex rel. U.S.
Army, Corps of Engineers, 881 F.2d 895, 897–98 (10th Cir. 1989). But that is a
misreading of that opinion. The cited passage merely states that the decision, based on
protected policy judgments, to allow both boating and swimming in the same portion of a
lake does not automatically establish that the decision not to post warning signs was also
a policy decision. The warning-sign decision had to be examined independently.
15
or regulation obligated the Park Service to develop and implement a particular tree-

inspection protocol, see id. at 1530, the court addressed the second Berkovitz prong,

considering the problem of hazardous trees as a group, rather than focusing on the one

tree that hit the car:

To decide on a method of inspecting potentially hazardous trees, and in
carrying out the plan, the Park Service likely had to determine and weigh
the risk of harm from trees in various locations, the need for other safety
programs, the extent to which the natural state of the forest should be
preserved, and the limited financial and human resources available.

Id. at 1531. The court therefore held that the Park Service’s “choices involved in such a

development and implementation [were] grounded in social, economic and public policy”

and thus protected by the discretionary-function exception. See id. at 1530–31; see also

Gonzalez v. United States, 851 F.3d 538, 548 (5th Cir. 2017) (“Decisions about how to

maintain bicycle trails running through 382,000 acres of land with only two recreation

technicians seem to invite, if not require, safety, financial, and other feasibility concerns.

Such decisions implicate resource allocation, wilderness considerations, and public

safety; in other words, they are administrative decisions grounded in social, economic,

and political policy.” (internal quotation marks omitted)); cf. Varig Airlines, 467 U.S. at

819–20 (decision-making requiring “agency to establish priorities for the

accomplishment of its policy objectives by balancing the objectives sought to be obtained

against such practical considerations as staffing and funding” was “plainly discretionary

activity of the ‘nature and quality’ protected by § 2680(a)”).

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 The law just summarized compels rejection of Plaintiffs’ argument on the

Berkovitz second prong. If the government is liable for not posting the warning or putting

up the barrier suggested by Plaintiffs at the site of the tragic accident in this case, it could

protect itself from future liability only by regularly examining all 1329 mine features and

all 1987 miles of Level 2 roads in the Forest for possible hazards and then, at the least,

posting warning signs to alert motorists to the hazards. The impact on the Forest Service

budget would be significant, requiring reordering of priorities from other activities. And

posting the number of warning signs that would evidently be required could not help but

detract from the scenic beauty of the Forest, making it a far less attractive place to try to

“get away from it all.” Perhaps the additional protection of life and limb would be worth

those costs. But the Forest Service could decide that adequate protection is afforded by

the warnings provided by the Motor Vehicle Use Map, its existing road-maintenance and

mine-closure policies and projects, and the good sense of motorists in the Forest. In any

event, that is a policy decision protected by the discretionary-function exception.

Plaintiffs contend that the discretionary-function exception does not apply to the

failure to warn of “specific hazards,” citing in support Duke v. Department of

Agriculture, 131 F.3d 1407 (10th Cir. 1997); Boyd v. United States ex rel. U.S. Army,

Corps of Engineers, 881 F.2d 895 (10th Cir. 1989); and Smith v. United States, 546 F.2d

872 (10th Cir. 1976). But the term specific hazard, although it can be factually

descriptive, does not and, if we are to comply with Supreme Court precedent, cannot

change the analysis of when the discretionary-function exception applies. None of the

17
cited cases rejected, or could have rejected, the proposition that the discretionary-function

exception protects government decisions “grounded in social, economic, and political

policy.” Berkowitz, 486 U.S. at 536–37; see Duke, 131 F.3d at 1409 (quoting Berkowitz);

Boyd, 881 F.2d at 897 (same); Smith, 546 F.2d at 877 (predating Berkowitz but

recognizing presence of policy judgments as dispositive issue in deciding whether

exercise of discretion is protected by discretionary-function exception). They simply

held that there were no such policy judgments behind the failures in those cases. See

Duke, 131 F.3d at 1412; Boyd, 881 F.2d at 898; Smith, 546 F.2d at 877. (We should note,

however, that perhaps Smith and Boyd, which were decided before Gaubert, would have

been decided differently if they had applied the Gaubert presumption that discretionary

decisions of government officials are grounded in the requisite policy.)

The gist of Plaintiffs’ theory appears to be that the conditions at the accident site

posed a unique “specific hazard” that could have been dealt with in a way that posed no

policy issues. After all, putting up one sign takes little time, effort, or money and would

not significantly detract from the scenic virtues of the Forest. But courts are not to

examine government decisions at that individualized scale. A judicial decision with

respect to one Forest site may have implications for numerous other similar sites. We

alluded to this point in Elder, where the plaintiffs challenged the adequacy of warning

signage at an attraction in Zion National Park:

[O]ne cannot isolate a particular possible warning sign (or other safety
measure, for that matter) and say whether its absence constitutes
negligence. The adequacy of one safety measure depends on what other
safety measures have been taken. If there is negligence, it is negligence in

18
 the design of the entire safety package. Yet park management must judge
the totality of the safety package in terms of its impact on other public
policies besides safety.

312 F.3d at 1183–84. By disapproving of the Forest Service’s decision with respect to

the Mine Shaft off Road 456.1A, we would be setting Forest Service policy for all mine

shafts and Level 2 roads. If it was required to act at the site of this accident, it would be

required to make individualized decisions at hundreds of other locations. But the

discretionary-function exception was adopted precisely to avoid such judicial interference

in administrative policy. See Berkovitz, 486 U.S. at 536–37 (“The basis for the

discretionary function exception was Congress’ desire to prevent the judicial second-

guessing of legislative and administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort.” (internal quotation marks

omitted)). The FTCA forbids courts from assuming a policy-making role through the

adjudication of tort claims.

We conclude that the Forest Service’s need to balance limited financial and human

resources, public safety, and scenic preservation in creating and executing its safety and

maintenance plan for off-road hazards, including abandoned-mine features, makes the

challenged inaction squarely the type of decision that the discretionary-function

exception aims to protect from “judicial second-guessing.” Id.

III. CONCLUSION

We AFFIRM the district court’s dismissal of Plaintiffs’ suit.

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