F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 3 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
NANCY ELDER and JEFFREY D.
EGGERTZ,
Plaintiffs - Appellants,
v. No. 01-4120
UNITED STATES OF AMERICA,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:99-CV-241-K)
Kathryn Collard of the Law Firm of Kathryn Collard LC, Salt Lake City, Utah, for
Plaintiffs-Appellants.
Jeffrey E. Nelson, Assistant United States Attorney (Paul M. Warner,
United States Attorney, Carlie Christensen, Assistant United States Attorney,
Salt Lake City, Utah, and G. Kevin Jones, Office of the Solicitor, United States
Department of the Interior, of counsel, with him on the brief), for Defendant-
Appellee.
Before HARTZ , ALDISERT , * and PORFILIO , Circuit Judges.
HARTZ , Circuit Judge.
*
The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
Plaintiffs Nancy Elder and Jeffrey D. Eggertz appeal from the district
court’s order granting summary judgment in favor of Defendant, the United States
of America. Plaintiffs brought this action under the Federal Tort Claims Act
(FTCA), 28 U.S.C §§ 1346(b) and 2671-2680, for the wrongful death of their 12-
year-old son, Tyler Eggertz, who died when he slipped and fell over a ledge while
crossing a stream at the Middle Emerald Pools at Zion National Park (Zion).
Plaintiffs allege that Zion employees were negligent in failing to protect
visitors, by warnings or otherwise, from the danger of falling at the Middle
Emerald Pools. The district court ruled that liability was foreclosed by the
discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
The horrific accident at issue in this case occurred on March 28, 1997.
Tyler Eggertz died while attempting to cross a small stream at the Middle
Emerald Pools at Zion National Park. As he stepped into the stream, he slipped
on slick algae growing on the streambed and fell down. Unable to rise, Tyler slid
downstream approximately 15 feet, fell over a ledge, and plunged more than 100
feet onto rocks below.
The Emerald Pools is one of Zion’s most-visited attractions, drawing
approximately one-third of the park’s more than two million annual visitors. The
-2-
Emerald Pools attraction has three levels: the Lower, Middle, and Upper Emerald
Pools. The Middle Emerald Pools is a smooth, relatively flat sandstone plateau
that slopes downward toward an overhanging ledge. Two shallow, narrow
streams flow over the plateau, down the sandstone surface, and off the plateau
ledge, creating waterfalls which cascade onto rocks near the Lower Emerald
Pools, more than 100 feet below. The stream that Tyler attempted to cross was
less than four feet wide and only three to five inches deep. (A photograph of the
Middle Emerald Pools as it appeared shortly after Tyler’s death is attached as an
appendix to this opinion.)
Prior to his fall, Tyler had been hiking with his family along the Emerald
Pools trail, a popular trail leading to the three Emerald Pools. This trail begins
just across the road from the main lodge at Zion. Near the Lower Emerald Pools,
the trail splits into two branches which initially head in opposite directions. Both
branches ascend toward the Middle Emerald Pools. The trail then continues
higher to the Upper Emerald Pools.
At the Lower Emerald Pools, Tyler, his 15-year-old sister, and his 14-year-
old cousin hiked ahead of their family, and proceeded up the right branch of the
trail toward the Middle Emerald Pools. Along the trail to the Middle Emerald
Pools, there were at least 14 signs that warned of various hazards and cautioned
visitors to stay on the trail. Four signs read, “All three Emerald Pools and
-3-
connecting creeks are closed to swimming, bathing and wading.” Four other signs
warned: “Stay on trail. Caution. Near the edge footing can be dangerous.” Two
signs read “Danger - Cliff. Slippery Sandstone. Unstable Rock Edge. Wet Rock
Hazardous.” Four signs indicated the path and direction of the trail. And off the
trail, embedded in the sandstone near where Tyler tried to cross the stream, five
signs read, “Danger beyond this point,” although Plaintiffs dispute that Tyler was
close enough to the ledge to see these particular signs at the time of the accident.
No signs specifically mentioned the danger of algae in the streams. Also,
as the trail enters the sandstone plateau of the Middle Emerald Pools, no barriers
or guardrails prevented visitors from leaving the trail and walking toward the
ledge.
When the children reached the Middle Emerald Pools, they left the trail and
sat on the sandstone plateau by one of the streams, approximately 15 feet from the
ledge. It was near here that Tyler attempted to cross the stream, slipped on the
algae growing on the sandstone streambed, and fell to his death.
Tyler’s death was not the first at the Middle Emerald Pools. In 1968, 1983,
and 1984, three other individuals had fallen to their deaths from the same area
where Tyler died. A fourth person may also have died at the Middle Emerald
Pools in 1972. Tyler’s accident was nearly identical to the accidents that
-4-
occurred in 1983 and 1984; in each case an individual slipped on algae while
crossing a stream, and perished after sliding over the ledge onto the rocks below.
After each fatality at the Middle Emerald Pools, Zion’s superintendent
convened a board of inquiry to evaluate the circumstances of the accident and
recommend potential safety improvements. The 1983 inquiry led Zion employees
to add and change certain warning signs near the site of the accident. The 1984
inquiry induced discussions about a number of possible safety improvements at
the Middle Emerald Pools, including augmenting existing warning signs to
indicate that individuals had died in the area, and placing boulders along the trail
edge to better delineate the trail across the sandstone. But apparently Zion
officials did not implement any of these suggestions prior to Tyler’s death.
In 1995 the safety committee undertook an analysis of safety issues relating
to the Emerald Pools trail. The committee discussed whether signage at the
Middle Emerald Pools was adequate, and considered the feasibility of installing a
device, such as a cable “grab bar” or net, that could prevent a visitor who slipped
in the stream from falling over the ledge. In addition, the committee considered
whether “additional accident prevention work is needed” at the Emerald Pools
area and identified two “action items”: (1) “Reposition a few of the signs to more
visible areas,” and (2) “Consider natural barricades in some areas.” The record
-5-
does not reflect whether any of these suggestions was implemented prior to
Tyler’s death.
Following Tyler’s death, Zion officials modified the signage along the
Emerald Pools trail. For example, at the beginning of the Emerald Pools trail,
Zion officials added a sign reading, “Please: watch your children– there are steep
drop-offs. Swimming or wading in the pools is prohibited.” In addition, Zion
officials removed two of the “Danger beyond this point”signs that were embedded
in the sandstone plateau of the Middle Emerald Pools, and installed a rope chain
near the Middle Emerald Pools to better define the path of the trail in that area.
Although unclear from the record, it is also possible that additional signs
indicating the path and direction of the trail to the Middle Emerald Pools were
installed, and that two of the signs prohibiting “swimming, bathing, and wading”
in the Emerald Pools were moved to different locations on the trail.
II. ANALYSIS
The FTCA waives the federal government’s sovereign immunity for “the
negligent or wrongful act or omission” of a federal employee “acting within the
scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Plaintiffs allege
that the government was negligent in (1) failing to warn of the algae hazard at the
Middle Emerald Pools and (2) failing to provide adequate barriers, equipment, or
-6-
supervision to prevent visitors from falling over the ledge at the Middle Emerald
Pools.
To prevail, however, Plaintiffs must prove more than negligence. They
must also first prove that their claims are not based upon actions immunized from
liability under the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a).
See Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998) (“The
discretionary function exception poses a jurisdictional prerequisite to suit, which
the plaintiff must ultimately meet as part of his overall burden to establish subject
matter jurisdiction.”) (internal quotation marks omitted). This exception excludes
from the FTCA’s waiver of immunity those claims “based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty”
by a federal agency or government employee. 28 U.S.C. § 2680(a). The
exception “marks the boundary between Congress’ willingness to impose tort
liability upon the United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.” United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808
(1984). Because the exception applies “whether or not the discretion involved
[was] abused,” 28 U.S.C. § 2680(a), it is irrelevant whether the government
employees were negligent. Aragon, 146 F.3d at 822.
-7-
To determine whether the discretionary function exception applies to the
challenged conduct, this circuit employs the two-pronged test of Berkovitz v.
United States, 486 U.S. 531, 536 (1988). See, e.g., Aragon, 146 F.3d at 823. We
have summarized the test as follows:
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 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 Varig Airlines, 467 U.S. at 814).
Kiehn v. United States, 984 F.2d 1100, 1102-03 (10th Cir. 1993). Plaintiffs
contend that the alleged negligent conduct satisfied neither prong of the Berkovitz
test.
A. Berkovitz First Prong
To prevail on the first prong, Plaintiffs must demonstrate that the
challenged decision involved no “element of judgment or choice.” Id. at 1102.
They must show that Zion employees violated a federal statute, regulation, or
-8-
policy that is both “specific and mandatory.” Aragon, 146 F.3d at 823. Plaintiffs
point to three policies. They claim that Zion’s failure to warn specifically of the
algae hazard or to erect barriers at the Middle Emerald Pools constituted
disobedience to (1) the National Park Service’s Loss Control Management
Guidelines (NPS-50); (2) Zion’s Loss Control Management Program (Zion
Management Plan, or Plan); and (3) the Zion safety committee’s August 1995
“action plan” for dealing with hazards in the Emerald Pools area. We consider
each in turn.
1. NPS-50
Plaintiffs argue that the NPS-50 required Zion to warn specifically of the
algae hazard and otherwise protect against the danger of falling at the Middle
Emerald Pools. The NPS-50 contains mandatory safety guidelines for the
National Park Service (NPS). NPS-50, Ch. 1, at 2 (Jan. 1991). The issue before
us is whether the guidelines are sufficiently specific to remove decisionmaking
under them from the discretionary function exception.
Chapter 1 of the NPS-50 states that the objectives of the guidelines include
(1) “Reducing the frequency and severity of accidents and losses for employees
and visitors” and (2) “Providing for the safety and health of the public (visitors)
from recognized hazards in NPS operations, on NPS lands, and in NPS facilities.”
Id. at 1.
-9-
Chapter 22 specifies the “minimum program requirements” for protecting
visitors from “recognized hazards,” and states that “every effort should be made
to identify the hazards in the park/area that have caused or have the potential to
cause, injury, illness, death or property damage to park visitors.” Id., Ch. 22, at
1. “[A]ll areas will provide any special materials, signs, and programs to alert the
public of potential dangers.” Id. at 2. “Brochures specific to the area should
contain safety messages that direct attention to special hazards or attractions that
could be potentially hazardous to the visitor,” and the park safety officer “should
review the signing of the park and determine if it is appropriate for the area
signed and if it is in good repair.” Id. at 2-3. Park employees are “responsible
for identifying hazards within NPS areas that may cause injury, illness, death or
property damage to park visitors and their property,” and “[s]hould be able to
impart accurate information to [the] public about locations, activities, climate and
special environmental threats.” Id. at 5.
The appendix to the NPS-50 contains a checklist for NPS personnel to
indicate compliance with the NPS-50’s provisions. That checklist requires a
“yes” or “no” response to a number of items, including (1) “Deficiencies are
corrected or the public otherwise protected or warned”; (2) “Brochures and other
literature providing public safety information are available to all visitors;
information is clearly identifiable and specific to existing hazards”; (3) “Warning
-10-
signs carry specific safety information which are easy to read and understand;
signs are posted in the proximity of the hazard”; (4) “Inter-divisional cooperation
toward visitor safety is in evidence through information provided during
interpretive programs, at entrance stations, by maintenance personnel, etc.”; and
(5) “Accident/incident reports are reviewed to identify specific locations and
sources of visitor injury; action plans are developed to mitigate problems.” Id. at
31-32.
In our view, these provisions are not sufficiently specific to satisfy the first
prong of the Berkovitz test. The NPS-50 certainly conveys the message that
safety must be a priority, and it assists park management by focusing on a number
of elements that should be encompassed by a safety program. But it does not
dictate what actions park employees must take in response to particular problems.
Indeed, the following language in the NPS-50’s Introduction makes clear that
safety decisions must be made in the special context of a national park and that
park management retains substantial discretion:
Paradoxically, many of the natural features found in parks pose
significant safety risks to the uninformed visiting public, yet those
same features cannot be eliminated nor guarded against in the same
manner that a prudent person would expect to find in an industrial or
home setting. Therefore, NPS public safety efforts are focused on
interpreting the values of the park’s natural features and educating
the visitor concerning the proper precautions one must take to have a
safe and healthful journey at that specific park unit.
....
-11-
This guideline has been prepared to provide both field units and
office managers with sufficient information to develop a
comprehensive safety and occupational health program. However,
each area must design its own safety and occupational health effort
based on local circumstances and operations.
Id., Introduction, at iii (emphasis added).
We agree with the Ninth Circuit’s characterization of the NPS-50 in
Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996). There, the plaintiff
had gravely injured himself when he dove off a bridge in Yosemite National Park.
He claimed negligence with respect to inadequate warnings and the design and
maintenance of the bridge. The court rejected the plaintiff’s contention that the
NPS-50 mandated particular warning signs.
Although the [NPS-50 and other NPS] policy manuals outline general
policy goals regarding visitor safety, they do not set out the specific
means by which the NPS employees are to meet these general goals.
Furthermore, the policy manuals’ broad mandate to warn the public
of and protect it from special hazards involves the exercise of
discretion in identifying such hazards, in determining which hazards
require an explicit warning and in determining the precise manner in
which to warn it of those hazards.
Id. at 1431.
In short, the NPS-50 does not remove Zion employees’ choice or judgment
regarding what measures to take. It does not “specifically prescribe[] a course of
action for an employee to follow.” Berkovitz, 486 U.S. at 536. Hence, Plaintiffs
cannot rely on the NPS-50 to remove the challenged conduct from the ambit of
the discretionary function exception. Cf. Duke v. Dep’t of Agric., 131 F.3d 1407,
-12-
1410 (10th Cir. 1997) (“While these [Forest Service] 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.”);
Tippett v. United States, 108 F.3d 1194, 1197 (10th Cir. 1997) (NPS policy
providing that “[t]he saving of human life will take precedence over all other
management actions” is “too general to remove the discretion” from park
employees’ conduct); Zumwalt v. United States, 928 F.2d 951, 954 & n.4 (10th
Cir. 1991) (national park’s policy recommending improvements for “hazardous or
difficult to follow” sections of a trail conferred “substantial discretion” upon park
employees to “determine which sections of the [t]rail have proven to be hazardous
or difficult to follow[,] . . . what type of improvements to make and where the
improvements should be located . . . .”).
2. Zion Management Plan
Plaintiffs next contend that the Zion Management Plan imposed non-
discretionary duties upon Zion employees to correct immediately the hazard at the
Middle Emerald Pools. The Zion Management Plan contains guidelines intended
to complement the NPS-50 in establishing specific direction for safety at Zion; it
also sets forth procedures for investigating and reporting hazards. Under the
Plan, when a hazard is identified as being an “imminent danger”—defined as an
“immediately life threatening” condition—persons must be removed from the
-13-
scene and the danger must be “correct[ed] immediately.” App. 00092, 00097.
When a hazard is determined to be a “serious” danger–one “which may result in
serious injury or illness”– persons must be removed from the scene and the danger
must be “correct[ed] within 30 days.” App. 00092, 00097. “Non-serious”
hazards must be “correct[ed] within 45 days,” and “technical” hazards must be
“correct[ed] within 60 days.” App. 00092.
One might read the above language to mandate that Zion employees
promptly eliminate any life-threatening condition in the park, thereby divesting
those employees of discretion. But we do not think that these provisions of the
Zion Management Plan can be construed so broadly. Rather, the commands
appear to be addressing only man-made hazards, or perhaps temporary hazards
caused by natural forces (such as a rock slide). The timing requirements (such as
“correct [the hazard] immediately”) would make no sense if intended to require
elimination of the numerous permanent, natural dangers which visitors may
encounter at a national park. Is a precipice an “immediately life threatening”
condition? How could the danger be eliminated immediately, or even within 30
days? Surely, the Plan does not require an unbreachable fence around the rim of
every precipice. Cf. Valdez v. United States, 837 F. Supp. 1065, 1069 (E.D. Cal.
1993) (rejecting interpretation of NPS-50 as an “absolute directive” because such
-14-
an interpretation would require a fence or sign “at every attraction that is
conceivably hazardous”), aff’d 56 F.3d 1177 (9th Cir. 1995).
Other provisions of the Plan indicate that it does not apply to permanent,
natural hazards. For instance, the Plan’s introduction states that it is the policy of
the NPS “to furnish employees, concessioners and contractors with places and
conditions of employment that are free from recognized hazards that are causing
or are likely to cause death or serious physical harm.” App. 00081 (emphasis
added). But a national park like Zion can never be “free” from permanent, natural
hazards. In addition, the “Safety Inspection Checklist,” appended to the
Management Plan, lists examples of the types of potential hazards that Zion
employees must inspect and classify as “imminent,” “serious,” “non-serious,” or
“technical” dangers. App. 000102. The examples include such matters as
“Electrical,” “Explosion Hazards, Flammable,” “Unsafe Practices or Procedures,”
and “Roads and Trails.” None of the examples are permanent, natural hazards.
Perhaps, despite the above indications to the contrary, the Plan’s mandates
to “correct” various dangerous conditions could be interpreted to encompass
permanent, natural hazards. But such an interpretation is plausible only if
“correcting” a danger means something short of eliminating the danger. For
example, although it may be impossible to eliminate the danger posed by a
precipice, one could say that barriers or signs can “correct” the problem. If the
-15-
term “correct” is so interpreted, however, then the Plan does not remove
discretion from Zion employees. They still must determine what, if anything,
needs to be done to “correct” the hazard. The Plan fails to provide precise
direction as to what suffices for a correction. See Blackburn, 100 F.3d at 1431.
We conclude that the Zion Management Plan does not exclude the conduct
in this case from the discretionary function exception.
3. The August 1995 “Action Plan”
Finally, Plaintiffs argue that the Zion safety committee’s August 1995
“action plan” prescribed a specific, non-discretionary course of action for Zion
employees to follow with respect to the algae hazard at the Middle Emerald Pools.
We disagree.
What the Plaintiffs term an “action plan” is a provision of an August 2,
1995, safety committee memorandum. That provision reads:
Several members of the Safety Committee have hiked to the Emerald Pools
area since the last meeting to determine if additional accident prevention
work is needed. This was not in response to any pending accidents, but
only to review this area of the park.
The following action items were identified:
• Reposition a few of the signs to more visible areas.
• Consider natural barriers in some areas.
App. 000162.
-16-
After listing the suggested “action items,” the memorandum continues:
“Drawings or pictures will be developed showing these recommendations.” Id.
(emphasis added). On its face, then, this document contains “recommendations,”
not compulsory directives. Recommendations of Zion’s safety committee are not
mandatory; rather, the committee suggests a course of action to Zion’s
superintendent, who then decides whether to implement those recommendations.
The recommendations did not deprive Zion management of discretion.
In sum, the guidelines and “action plan” relied on by Plaintiffs delegate
extensive discretion to Zion managers. The managers must determine whether a
hazard exists, the severity of the hazard, and whether physical barriers or signs
are appropriate safety measures. When considering safety measures, they must
assess such factors as whether the measures may actually encourage dangerous
conduct by visitors (the existence of a barrier may cause visitors to underestimate
the residual danger, and a sign warning of an extreme danger may cause visitors
to minimize the peril identified by other signs); the size, placement, and content
of signs; whether excessive signage may “numb” visitors; and whether signs or
barriers are likely to withstand the elements (such as a flash flood). In addition,
as discussed more fully below, the park managers must weigh any safety measure
against its impact on the purposes of a national park.
-17-
Because no statute, regulation, or policy specifically prescribed a course of
action for Zion employees to follow, the challenged conduct was discretionary
under the first prong of the Berkovitz test.
B. Berkovitz Second Prong
Having concluded that decisions regarding the placement of warnings and
barriers at the Middle Emerald Pools involved discretionary judgment, we must
now determine under the second prong of the Berkovitz test “whether that
judgment is of the kind that the discretionary function exception was designed to
shield.” Berkovitz, 486 U.S. at 536.
Only decisions “susceptible to policy analysis” are protected by the
exception. United States v. Gaubert, 499 U.S. 315, 325 (1991). The pertinent
inquiry 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 it does not. In essence, they contend that the decisions regarding barriers and
signs at the Middle Emerald Pools involved no policy analysis because the park
officials’ sole relevant consideration was public safety. We disagree. For one
thing, park officials must weigh the cost of safety measures against the additional
safety that will be achieved. Even inexpensive signs may not be worth their cost.
(One FTCA plaintiff dove off a bridge lined by a granite block wall despite six
-18-
signs warning “DANGEROUS TO DIVE FROM BRIDGE.” Blackburn, 100 F.3d
at 1428. Would an additional sign have helped?)
More importantly, in a national park whose purpose is to preserve nature
and display its beauty to the public, any safety measure must be weighed against
damage to natural resources and aesthetic values. These considerations are
expressed in NPS policy. The NPS is charged under the NPS Organic Act with
promot[ing] and regulat[ing] the use of . . . national parks . . . by
such means and measures as conform to the fundamental purpose of
the said parks . . .which purpose is to conserve the scenery and the
natural and historic objects and the wild life therein and to provide
for the enjoyment of the same in such manner and by such means as
will leave them unimpaired for the enjoyment of future generations.
16 U.S.C. § 1. Park officials are thus required by statute to balance preservation
with public access.
Various NPS operating manuals reflect this policy, requiring park
management to consider the impact that any safety measure would have on a
park’s scenery and natural resources. For example, the NPS Management Policies
manual states:
Where practicable and not detrimental to NPS mandates to preserve
park resources, known hazards will be reduced or removed. Where it
would be inconsistent with congressionally designated purposes and
mandates or where otherwise not practicable to make physical
changes, efforts will be made to provide for persons’ safety and
health through other controls, including closures, guarding, signing,
or other forms of education.
-19-
NPS Management Policies, Ch. 8:5-8:6 (Dec. 1988). Under that manual, park
management must limit signs “to the minimum number, size, and wording
required to serve their intended functions, so as to minimally intrude upon the
natural or historic setting,” and place signs “where they do not interfere with park
visitors’ enjoyment and appreciation of park resources.” Id. at Ch. 9:11.
The NPS Sign Manual conforms to the Management Policies manual,
instructing park management to “bear in mind long standing NPS policy to
minimally intrude upon the natural or historic setting in National Park System
areas, and to avoid an unnecessary proliferation of signs, while striving to ensure
for the safety of park visitors.” NPS Sign Manual, at 1-1 (Jan. 1988). Reflecting
the difficulty of the choices that must be made, it adds that “[t]he decision to
utilize a particular sign at a particular location requires the professional judgment
of the park manager.” Id.
In this case, the government contends that the decision not to post
additional warning signs or erect barriers at the Middle Emerald Pools involved
the consideration of a number of factors, including (1) the practicality and
effectiveness of any change, (2) preservation of park resources and the natural
environment, (3) preservation of visitors’ enjoyment of the environment, and (4)
cost. Plaintiffs counter that “Defendant has not and cannot point to a shred of
objective, contemporaneous evidence, demonstrating that Zion National Park
-20-
officials considered the competing policy considerations” asserted as justification
for failing to warn of or correct the hazard at the Middle Emerald Pools.
Plaintiffs misconceive the nature of the inquiry. Application of Berkovitz’s
second prong does not require proof of the thought processes of the pertinent
decisionmakers. On the contrary, “courts should not inquire into the actual state
of mind or decisionmaking process of federal officials charged with performing
discretionary functions.” Franklin Sav. Corp. v. United States, 180 F.3d 1124,
1135 (10th Cir. 1999). See Kiehn, 984 F.2d at 1105 (“The lack of record
evidence describing an analysis of public policy factors in the NPS decision not to
post warnings is immaterial.”) “The 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.” Gaubert, 499 U.S. at 325. If the decisionmaker’s subjective
intent were relevant to application of the discretionary function exception,
summary judgment could be granted rarely, if ever, thereby prolonging disruptive
litigation that the exception was intended to foreclose. See Franklin Sav. Corp.,
180 F.3d at 1134-41. The approach taken by the Supreme Court relies on
objective factors:
[I]f a regulation allows the employee discretion, the very existence of
the regulation creates a strong presumption that a discretionary act
authorized by the regulation involves consideration of the same
policies which led to the promulgation of the regulations
-21-
....
When established governmental policy, as 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. Accordingly, we presume in this case that the
decisions at Zion were grounded in the NPS policies noted above.
Of course, the facts of the specific case may overcome the presumption to
which the government is entitled under Gaubert. In certain circumstances, it may
be obvious that a decision implicates none of the public policies that ordinarily
inform an agency’s decisionmaking. For example, in Duke we held that the
discretionary function exception did not exempt the government’s decision not to
warn of falling rocks at a campground in the Gila National Forest. Duke, 131
F.3d at 1412. In that case, the government acknowledged that cost was not a
factor in its decision. Id. And we could discern no public policy (such as
preserving natural beauty) that was implicated by the decision not to install a
warning sign at the campground, which was located on the side of a road that also
served as a parking lot. Id. at 1411-12. See also Boyd v. United States ex rel.
U.S. Army, Corps of Eng’rs, 881 F.2d 895, 898 (10th Cir. 1989) (government’s
“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 properly is concerned”).
-22-
That is not the situation here. The Middle Emerald Pools is not a parking
lot, but a scenic attraction. The area may not be remote from civilization (it is
near Zion’s main lodge). Yet, because of its scenic value, many of the same
interests are at stake as in cases recognizing the discretionary function exception
as a defense to claims arising out of dangers in the wilderness. See Kiehn, 984
F.2d at 1105 (“The decision not to post warning signs in remote areas of a
national monument inherently requires a balancing of public policy objectives,
such as resource allocation, visitor safety and scenic preservation.”); Johnson v.
United States Dep’t of Interior, 949 F.2d 332, 337 (10th Cir. 1991) (decisions
regarding regulation of mountain climbing in Grand Tetons “[b]y their very
nature, . . . involve balancing competing policy considerations pertaining to
visitor safety, resource availability, and the appropriate degree of governmental
interference in recreational activity”); Zumwalt, 928 F.2d at 955 (decision not to
warn of known hazards along trail through wilderness area of national monument
implicated protected policy decision to maintain trail in a wilderness state).
People visit the Middle Emerald Pools for the express purpose of seeing
natural beauty. The Middle Emerald Pools could be made perfectly safe by
installing around it a 10-foot-high chain link fence with spikes on top. But few
would want to visit such a site. Zion officials have to decide the extent of safety
precautions that can be justified in a scenic park. Physical barriers undoubtedly
-23-
spoil the view and the experience of communing with nature. Although some
warning signs may be necessary, their number, size, and even content must be
measured against the very purposes of a national park, which include to “conserve
the scenery” and provide for public enjoyment. 16 U.S.C. § 1.
Plaintiffs contend that the government has not “explain[ed] how Zion
National Park officials’ alleged negligence in failing to warn Park visitors of the
specific nature and location of the imminent death hazard posed by the sub-
surface slippery algae at the Heaps Creek stream, was the result of any political,
social or economic decisions the discretionary function exception was designed to
protect.” Appellant’s Reply Brief 17. In our view, however, it is difficult to see
how any means of warning here could fail to implicate public policy. Plaintiffs
challenge the adequacy of the signage existing at the time of the accident,
including the two signs that said, “Danger - Cliff. Slippery Sandstone. Unstable
Rock Edge. Wet Rock Hazardous.” But what would constitute an adequate
warning: Bigger signs? Signs embedded in the sandstone immediately next to
each stream? Such “solutions,” however, have an impact on park aesthetics. And
even if Plaintiffs are contending only that the wording of existing signs should
have been altered to mention algae specifically, such a change would necessitate a
chain of further decisions. Would not Zion managers then have to decide whether
it is necessary to add signs that explain how to identify algae (Tyler’s stepmother
-24-
testified that the algae blended with the rocks and was “not real noticeable,” App.
000186) or that warn of the hazards of wet rock not covered by algae, and
whether such additional signage would impair the scenery too much, as well as
numb visitors to all warnings?
In the context of the Middle Emerald Pools, one 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 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. Thus, it would be impossible to resolve Plaintiffs’
negligence claims without evaluating decisions protected by the discretionary
function exception.
We conclude that the second prong of the Berkovitz test has been satisfied
and the government is entitled to the protection of the discretionary function
exception. Accordingly, we need not consider Plaintiffs’ argument that Zion
would be liable in tort under Utah’s Limitation of Landowner Liability Act, Utah
Code Ann. § 57-14-1, et seq. When the discretionary function exception applies,
it applies regardless of whether the discretionary acts themselves constitute
actionable negligence. Kiehn, 984 F.2d at 1108; Johnson, 949 F.2d at 340.
-25-
III. CONCLUSION
We AFFIRM the judgment of the district court.
-26-