dissenting.
Our Court’s decision in this case means that the discretionary function exception has swallowed, digested and excreted the liability-creating sections of the Federal Tort Claims Act. It decimates the Act.
The Supreme Court has developed a two-prong test to govern the application of the discretionary function exception. First, the court must determine whether the conduct violated a mandatory regulation or policy that allowed no judgment or choice, a relatively easy standard to apply. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (citing Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988)). If there is no mandatory regulation governing the conduct and the conduct involved an exercise of judgment, then the court must determine “whether that judgment is the kind that the discretionary function exception was designed to shield.” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958). The second part of this test presents an ambiguous standard that is difficult *445to apply and that has produced a large number of inconsistent holdings in the circuit and district courts. The Congress and the Supreme Court have left it up to the lower courts to define this vague standard over time by applying it to fact patterns as they arise.
I agree with the majority that the applicable regulations did not mandate the Forest Service to maintain its campsites and fire pits in any specific manner. I do not agree that the Forest Service’s decision regarding whether to place a grating, a railing, or a warning near a campfire pit is the kind of judgment that the discretionary function exception was designed to shield. In Gaubert, the Supreme Court explained that the discretionary function exception protects only governmental actions and decisions “grounded in the policy of the regulatory regime.” Gaubert, at 325, 111 S.Ct. at 1275 (emphasis added). The reasoning behind the exception was 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.” Gaubert, at 323, 111 S.Ct. at 1273 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984)). Although I agree with the majority that safety precautions involve some judgment, I do not agree that the decision of the United States Forest Service in this ease is grounded in the “policy of the regulatory regime.” I fail to see a social, economic, or political policy behind a decision regarding whether to place gratings or railings or signs near a fire pit to make it safer for the public.
If we are not careful in our application of the second prong of the test, the discretionary function exception to the Tort Claims Act could potentially swallow the entire Act. As a result of the Gaubert decision, courts have given considerable deference to government assertions of policy discretion. Donald N. Zillman, Protecting Discretion: Judicial Interpretation of the Discretionary Function Exception to the Federal Tort Claims Act, 47 Me. L.Rev. 365, 382 (1995). “The Court ought not to use one phrase in one subsection of the FTCA [Federal Tort Claims Act] to emasculate the rest of the statute.” William P. Kratzke, The Supreme Court’s Recent Overhaul of the Discretionary Function Exception to The Federal Tort Claims Act, 7 Admin. L.J. Am. U. 1, 31 (1993). In fact, the Supreme Court did not intend for the Gaubert decision to free the government from all liability under the Federal Tort Claims Act. As part of its discussion, the Court specifically stated that there are discretionary acts that are within the scope of a government agent’s 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.” Gaubert, at 325, n. 7, 111 S.Ct. at 1275 n. 7.
Several other courts have agreed that there are limits to the actions which the discretionary function exception was designed to shield. As the Second Circuit explained, the Supreme Court’s “rejection [in Gaubert ] of any simplistic reliance on the dichotomy between planning-level actions and operation-level actions” did not abolish the requirement that policy considerations “remain the touchstone for determining whether the discretionary function exception applies.” Andrulonis v. United States, 952 F.2d 652, 654 (2nd Cir.1991) (held that the negligent omission of a warning of unsafe laboratory conditions unnecessarily placing the lives of workers at risk could not have been grounded in a policy scheme), cert. denied, 505 U.S. 1204, 112 S.Ct. 2992, 120 L.Ed.2d 869 (1992). Similarly, in Cope v. Scott, 45 F.3d 445 (D.C.Cir.1995), the D.C. Circuit held that even though the discretion regarding “where and what type of signs to post” for safety reasons involves judgments of engineering and aesthetics, those judgments are not sufficiently matters of public policy. See also Myers v. United States, 17 F.3d 890 (6th Cir.1994) (held that the discretionary function did not shield the Mine Safety and Health Administration from an action by survivors of a mine explosion because the safety inspectors were not authorized to conduct their inspections on the basis of social, economic or political policy); Routh v. United States, 941 F.2d 853 (9th Cir.1991) (failure to require specific safety equipment was not subject to discretionary function exception). *446As in these other cases, the government in this case has failed to articulate how its decision to protect the public from allegedly hazardous fire pits involved a judgment grounded in regulatory policy.
Plaintiff relies heavily on Summers v. United States, 905 F.2d 1212 (9th Cir.1990), in which the Ninth Circuit held that the discretionary function exception did not protect the National Park Service’s decision not to warn beachgoers of the dangers posed by fire rings placed on the beach. The majority argues that the basis of the decision in Summers was the Ninth Circuit’s conclusion that the Park Service provided no evidence to show that its decision reflected competing considerations. The majority concludes that Summers has been rejected because in Gaubert the Supreme Court held that the courts should focus on whether the decision was susceptible to policy analysis and not on whether such an analysis was actually conducted. The majority has read Summers too narrowly. The Ninth Circuit’s holding in Summers was based on the conclusion that “the NSP’s [Park Service’s] failure to identify and warn of the danger to barefoot visitors of hot coals on park beaches resembles more a departure from the safety considerations established in Service policies ... than a mistaken judgment in a matter clearly involving choices among political, economic and social factors.” Summers, 905 F.2d at 1216. This reasoning is still a fundamental part of the analysis of the discretionary function exception even after the Gaubert decision, and it is particularly applicable in this case.
The majority also argues that Summers is in conflict with the law in our Circuit. All of the cases cited by the majority are distinguishable because the government in those cases articulated to the Court how its conduct was based on social, economic, or political policy. In the case before us, as in Summers, the government completely failed to articulate how its decision was based on policy. In Myslakowski v. United States, 806 F.2d 94 (6th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987), our Court applied the discretionary function exception to the government’s decision to sell vehicles “as is.” The Court explained that the government was faced with an important judgment as to whether it should sell the vehicles “as is” in order to relieve itself of the need to issue warnings and warranties or sell the vehicles with warnings and create potential liability. In Graves v. United States, 872 F.2d 133 (6th Cir.1989), our Court held that the discretionary function exception bars suit for failure to warn boaters of a dam on the Kentucky River. The Court explained that the government had made the judgment to close the area of the dam and “intimately connected with the decision” was the policy decision regarding the type of warnings which were effective and cost-justified in a closed area. In Lockett v. United States, 938 F.2d 630 (6th Cir.1991), we applied the discretionary function exception to the Environmental Protection Agency’s decision that it lacked sufficient evidence of a violation of regulations at a hazardous waste site. The Court explained that judgments which determine the priorities of threats to public health and allocation of limited resources to protect the public were the types of decisions the discretionary function exception was intended to shield. Id. These cases involved policy judgments regarding appropriate methods for selling government vehicles, whether (and what type of) warnings are necessary for closed areas, and sufficiency of evidence to create a violation of environmental regulations. In contrast, in our case, the government has failed to explain how its decision was grounded in policy.
The majority did not address our decision in Myers v. United States, 17 F.3d 890 (6th Cir.1994), in which this Court held that the discretionary function exception did not shield the Mine Safety and Health Administration from an action by survivors of a mine explosion because the safety inspectors were not authorized to conduct their inspections on the basis of social, economic or political policy. The Court explained that the balancing of the interests of the miners and mine owners and effective use of limited resources was already done by the Congress and the Secretary of the Department of Labor. The inspectors were not to reweigh these interest but to determine compliance with safety. Their decisions were not based on policy *447decisions but rather on their “own observations, informed by professional judgment and knowledge of the industry.” Id. at 898. Similarly, in the case currently before our Court, the decision of the Forest Service to handle the placing of a grate, railing or warning near a fire pit involves measures of prudent safety based on the knowledge and experience of the members of the Forest Service.
In other cases cited by the majority, the decisions were said to be based on a reasonable desire to protect the experience of the visitors in the park. Bowman v. United States, 820 F.2d 1393 (4th Cir.1987) (failing to place guardrail on Blue Ridge Parkway implicated consideration of protecting scenic vista); Zumwalt v. United States, 928 F.2d 951 (10th Cir.1991) (failure to post sign in a wilderness area implicated decision to protect wilderness experience); Autery v. United States, 992 F.2d 1523 (11th Cir.1993) (decision as to how to implement plan to remove hazardous trees implicated decision to preserve the natural state of the forest), cert. denied, 511 U.S. 1081, 114 S.Ct. 1829, 128 L.Ed.2d 458 (1994); Wright v. United States, 82 F.3d 419, 1996 WL 172119 (6th Cir. April 11, 1996) (unpublished) (decision regarding which trees should be cut implicated explicit decision to preserve wilderness); Childers v. United States, 40 F.3d 973 (9th Cir.1994) (manner and types of warnings to be placed on hiking trails in Yellowstone National Park implicate policy of preserving natural state of the park), cert. denied, 514 U.S. 1095, 115 S.Ct. 1821, 131 L.Ed.2d 744 (1995); Kiehn v. United States, 984 F.2d 1100 (10th Cir.1993). But in the instant case, the government has failed to make a persuasive argument that it refused to place a grating, railing or warning near the campfire pit in order to protect the experience of the camper.
I do not think that the discretionary function exception applies to this case. Therefore, I would remand this case to the district court for determination under the substantive state law of Michigan. 28 U.S.C. § 1346(b).