Burns v. United States of America

MOTION for Summary Judgment Re. Discretionary Function Exception

D. Ariz.April 17, 2017

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH A. STRANGE Acting United States Attorney District of Arizona LAURENCE G. TINSLEY, JR. Arizona State Bar No. 012581 Assistant United States Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 laurence.tinsley@usdoj.gov Attorneys for Defendant United States of America IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Seth Burns, Plaintiff, vs. United States of America, Defendant. Case No: 3:16-cv-08033-NVW MOTION FOR SUMMARY JUDGMENT RE. DISCRETIONARY FUNCTION EXCEPTION Defendant moves for summary judgment. Plaintiff alleges he was injured in the Coconino National Forest when he and his coworkers attempted to move a boulder off a road that blocked their access to a job site. Though he had no specialized training or equipment (S.O.F. # 50), Plaintiff claims he was attempting to hook a strap to the boulder when another rock slide occurred above him, causing another boulder to tumble on to him and injure him. S.O.F. #s 50-54. Plaintiff brings this action against the United States alleging it was negligent for failing to remediate the boulder or close the road. However, the United States Forest Service (USFS) exercised its discretion when it evaluated conditions at the road described in an email received several weeks before which pointed out a boulder sitting on the road and stated that other boulders might potentially roll down after a rainstorm.1 S.O.F. # 60. 1 Despite Plaintiff’s various characterizations, the email, written by Ron Strohmeyer, former President of the Mount Elden Users Association (MEUA), does not warn of Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 1 of 18 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Discretionary Function Exception, 28 U.S.C. § 2680(a), to the Federal Tort Claims Act bars Plaintiff’s claims. The Discretionary Function Exception precludes tort liability when federal employees exercise discretion grounded in social, economic and political policy. See 28 U.S.C. § 2680(a). The undisputed facts demonstrate that the United States’ decisions regarding maintenance of the forest road and removal of the boulders were discretionary and grounded in policy judgments. Accordingly, Summary Judgment should be entered in favor of the United States. I. Standard of review. A court should grant summary judgment if the evidence shows no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.2000). A material fact is one that might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). II. Introduction to the Discretionary Function Exception. The United States cannot bear liability under the Discretionary Function Exception (DFE), which immunizes the United States for any claim based on the exercise a discretionary function or duty – or failure to exercise a function or duty – by a federal employee. 28 U.S.C. § 2680(a). Whether or not the United States was negligent, this is not the proper measuring stick under a discretionary function analysis. “Negligence is simply irrelevant to the discretionary function inquiry.” Kennewick Irrigation District v. U.S., 880 F.2d 1018, 1029 (9th Cir.1989). Thus Plaintiff’s negligence claims are inapposite. The district court thus does not have subject matter jurisdiction over a FTCA case if the alleged negligence comes within the DFE. See GATX/Airlog Co. v. U.S., 286 F.3d 1168, 1173 (9th Cir.2002). Under the exception, the FTCA shall not apply to: “danger” or characterize the boulders on the hillside as an “unreasonably dangerous condition.” S.O.F. # 61. His email simply opines that more boulders may fall in the next rain or two, without identifying which ones. Id. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 2 of 18 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Any claim...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 Supreme Court has established a two-step process for evaluating whether a claim falls within the DFE. First, a court examines whether the government’s actions are “discretionary in nature, acts that involv[e] an element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991). In making this examination, it is “the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984). “If there is…a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee has no rightful option but to adhere to the directive.” Terbush v. U.S., 516 F.3d 1125, 1129 (9th Cir. 2008). Second, “even assuming the challenged conduct involves an element of judgment, it remains to be decided whether that judgment is of the kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322–23. “The exception protects only government actions and decisions based on social, economic, and political policy.” Miller v. U.S., 163 F.3d 591, 593 (9th Cir.1998). However, the exception “is not confined to the policy or planning level” and extends to “the actions of Government agents.” Gaubert, 499 U.S. at 323, 325. When a statute or regulation allows the government to act with discretion, “it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Id. at 324. Significantly, the DFE applies regardless of whether the government agent was negligent in his duties, so long as those duties were discretionary. See Kennewick, supra. Plaintiff claims that the United States was negligent for not addressing boulders on the hillside above Road 557, which he claims created an unreasonably dangerous condition. Based on the principles under the DFE, Plaintiff’s claim fails. The evidence shows that the USFS’s conduct was both discretionary and grounded in policy Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 3 of 18 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 considerations: the USFS does not automatically move boulders off a hillside or close down a road based on a citizen complaint about what might happen. S.O.F. #s 67, 89. Rather, when a complaint such as Strohmeyer’s comes in, the USFS reviews it, considers the USFS’s limited resources to maintain and address road and forest conditions, and evaluates both the social ramifications (impact to users, and potential archaeological and environment issues), and economic ramifications (impact on businesses maintaining cell phone towers on Mt. Elden, and their users). S.O.F. #s 4, 79, 97, 98. Here, the USFS applied all these factors in evaluating Strohmeyer’s email, in light of its prior experience with rock falls in other more densely populated camping areas in the National Forest. S.O.F. #s 109, 112-117. III. The Discretionary Function Exception bars Plaintiff’s claim that the USFS negligently failed to remediate the boulders and/or close the road. The essence of Plaintiff’s claim is that the United States failed to address and remove boulders, or close the road down despite notice of an alleged danger. Plaintiff’s argument fails. This is a pure negligence argument. There are no statutes, regulations or policies mandating the removal of boulders, the closure of USFS roads, or providing warnings. Rather, these decisions are left to the discretion of USFS Officials. There are no established safety policies or plans for forest roads such as Road 557. Road 557 is a part of a global USFS travel management plan – which inventoried all roads in the Coconino National Forest, and set priorities for road management. S.O.F. #s 17-20. The plan did not establish a safety plan for the forest roads and did not evaluate potentially dangerous conditions or hazards. S.O.F. #s 22-25. Rather, the purpose of the plan was to inventory issues regarding erosion, hydrology, cultural heritage and access to recreation. S.O.F. # 21. Thus Plaintiff cannot show that the USFS developed an established safety plan from which it deviated. Further, the Forest Service Manual (FSM) and the Forest Service Handbook (FSH), under which the USFS operates, merely state a broad overarching policy that the Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 4 of 18 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 USFS operate and maintain forest roads in a manner that meets road management objectives and that provide for: 1. Safe and efficient travel; 2. Access for the administration, utilization, and protection of NFS lands; and 3. Protection of the environment, adjacent rescues and public investment. See 7730.2 – Objectives, Forest Service Manual, 7700 – Travel Management, Chap. 7730 – Road Operation and Management. S.O.F. # 23. The FSM states the broad goals that USFS officials must implement, including public safety for road management: 4. Identify the benefits of public access to NFS lands and the environmental costs of road-associated effects, taking into account public safety, affordability, and management efficiency. * * * 6. Use travel analysis… to ensure that road management decisions are based on consideration of environmental, social, and economic impacts. See 7703.12, Road Management, Travel Management, Forest Service Manual, Chap. 7700 – Zero Code (emphasis added). S.O.F. #24. See also S.O.F. #s 25-28, 31. While the FSM seeks to balance access to public lands with public safety, taking into account risks and benefits, because the FSM contains no mandate on how this occurs, the DFE protects the implementation of these broad public safety mandate by USFS officials. Id. The Ninth Circuit specifically holds that the implementation of broad safety mandates, in the absence of an established safety plan, is protected by the DFE.2 In 2 The Ninth Circuit will only decline to apply the DFE where the government fails to follow an established safety plan. See e.g., Navarette v. U.S., 500 F.3d 914, 918-19 (9th Cir.2007) (no application of the DFE because the challenged action by the Army Corps involved safety considerations under an established policy rather than the balancing of competing public policy considerations); Terbush v. U.S., 516 F.3d 1125 (9th Cir.2008) Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 5 of 18 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blackburn v. U.S., 100 F.3d 1426 (9th Cir.1996), the plaintiff was injured when he dove off a bridge in a national park. The Ninth Circuit found that the DFE barred his claims that the Park Service violated its duty to warn the public about potential hazards: Although the 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. Id. at 1431. (Emphasis added). Likewise, in this case, the DFE protects the implementation of broad public safety mandate found in the FSM since no regulations dictate what action must be taken or how – such as removing boulders, closing roads, or placing warning signs. That is left to the discretion of USFS Officials, who also have the discretion to implement safety management systems. S.O.F. #s 28, 31, 66. The relevant inquiry is whether controlling statutes, regulations and administrative policies mandate that the USFS maintain its roads in any specific manner. Rosebush v. U.S., 119 F.3d 438, 442 (6th Cir.1997). They do not. No regulations require that boulders be removed from hillsides or that gates be closed upon reports of potential hazards. S.O.F. #s 65, 88. While the FSM may broadly balance public safety with other factors such as access and availability of funds, the FSM provides discretion on how officials implement these plans. S.O.F. #s 25-28, 31; see Blackburn, supra; Autery v. U.S., 992 F.2d 1523, 1529, 1531 (11th Cir.1993) (knowledge of danger from falling trees and unwritten inspection plan for their removal did not mandate that plan be performed in a specific way despite a broad policy to protect human safety in a national park; even in (the challenged action involved the balancing of competing public policies and was not controlled by safety considerations under an established policy); ARA Leisure Services v. U.S., 831 F.2d 193 (9th Cir. 1987) (while Park Service’s decision to design and construct a road without guardrails was grounded in social and political policy, the failure to maintain the road in a safe condition was not protected since it involved “safety considerations under an established policy – specifically, a Park Service standard regarding maintenance of graded park roads.) This is not our case since, as shown, no established safety plan exists. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 6 of 18 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the face of a broad safety mandate, Park Service employees have protected discretion to evaluate potentially dangerous trees along roadways pursuant to the inspection plan.). A. Decisions on whether to remove boulders are based on policy considerations. When a complaint such as Strohmeyer’s comes in, USFS employees look at the costs and benefits of remediating the potential risk – in this case, the cost or benefits of removing additional boulders from a hillside above a road. S.O.F. #s 68-71, 80-81. This includes the impact on and conservation of wildlife, and the impact on and preservation of potential archeological sites. S.O.F. #s 75-79. Officials also evaluate the availability of or lack of resources in making decisions regarding roads, which is protected discretion. Childers v. U.S., 40 F.3d 973 (9th Cir.1994) (DFE applies where “decisions are policy- based requiring [park service officials] to balance access with safety, and take into account conservation and resources in designing area plans and making individual trail determinations.”) The USFS does not automatically remove boulders, but evaluates both economic and social interests that would be impacted if removal or a road closure occurred. S.O.F. #s 65, 67. Even if the USFS gets its evaluation wrong, delays addressing the putative condition, or is otherwise arguably negligent, that is legally insignificant – as long as the action taken or the omission occurring is susceptible of policy analysis. Ed Monin, Assistant Forest Road Engineer/Road Manager, testified that he saw Strohmeyer’s email (S.O.F. # 105) and assessed whether an engineering remediation of the hillside could occur (S.O.F. #s 71-74, 106), i.e., whether removal of boulders could cause more damage or engender a more severe landslide. Further, he looked at impact of closing the road on the cell towers on Mt. Elden, the businesses running them, and their tens of thousands of customers (S.O.F. #s 96, 98; see also S.O.F. #s 33-34), as well as its impact on the public, such as campers, bird watchers, hunters, etc. S.O.F. # 99. He also looked at the likelihood of future rock falls in this remote area. S.O.F. #s 82-84. From a historical perspective, only a single boulder had come down one time Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 7 of 18 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 before at this site on Road 557, in July 2013. S.O.F. # 82. Monin specifically testified that when he looked at this issue before he found that the issue of rock falls was widespread (S.O.F. #s 110-111); there are 8000+ miles of roads in the Coconino and Kaibab National Forests (S.O.F. #s 13-14) for which the one USFS road crew was responsible – illustrating the limited resources the USFS had to deal with an arbitrarily occurring problem. S.O.F. # 15. Monin testified about his experience in reviewing rock falls at two other more populous outdoor sites. S.O.F. #s 108-109, 112-113. This taught him that the cost to conduct a preliminary study on whether solutions could be engineered to address falling rock risks at those sites was itself cost prohibitive. S.O.F. # 114. In light of this history and those costs, he determined that the USFS’s limited resources could not remediate the potential rock fall issue raised in the Strohmeyer email. S.O.F. # 116. Monin’s testimony illustrates the USFS’s overall internal and intrinsic process of balancing resources in deciding whether to remove an alleged hazard or close a road. Further, besides Monin’s consideration of whether removal of the boulders could cause further damage, John O’Brien, the Forest Engineer, also testified that in evaluating conditions like this the USFS considers the impact on potential archaeological sites and on wildlife, since disturbance of their environment could occur by additional rock slides during remediation. S.O.F. #s 70, 72, 75. Monin testified that he specifically considered these factors in his review of Strohmeyer’s email. See e.g., S.O.F. #s 106-107. Thus the USFS weighed social and economic policy and exercised its discretion in reviewing Strohmeyer’s email, decisions that Plaintiff now claims were negligent. Plaintiff claims no actual weighing occurred, presumably because O’Brien testified he did not recall that Strohmeyer’s email referenced two sites: a site near the top of Mt. Elden, and the site that became the accident scene months later. S.O.F. # 102. O’Brien focused only on the boulder on Road 557 at the higher up site. Id. Setting aside that Monin specifically testified that prior to the accident he saw that the email referred to both sites (Id.), and that Bathen looked at both sites either before or Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 8 of 18 - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 after the Strohmeyer email came in (S.O.F. # 103), O’Brien’s testimony does not create a disputed material fact. 28 U.S.C. § 2680(a) expressly applies the DFE to both acts and omissions (“the exercise or performance or the failure to exercise or perform a discretionary function or duty”) (emphasis added). In re Consolidated U.S. Atmospheric Testing Litigation, 820 F.2d 982, 998 (9th Cir.1987) (Consolidated): [Appellants] argue that the discretionary function exception cannot apply in the absence of a “conscious decision.” The statute is not so limited; it exempts “[a]ny claim based upon...the failure to exercise or perform a discretionary function...” 28 U.S.C. § 2680(a). The language is directed at the nature of the conduct, and does not require an analysis of the decision-making process. Cf. General Public Utilities Corp. v. United States, 745 F.2d 239, 245 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985) (the exemption is based on the nature of the conduct, “not whether there is an option to choose”). When enacting § 2680, “Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions.” Dalehite [v. U.S.], 346 U.S. [15] at 32, 73 S.Ct. at 966 [(1953)](emphasis added). Thus, even if O’Brien did not consciously appreciate that a portion of Strohmeyer’s email and attached photos referenced the future accident site, the discretion allotted to USFS for its determinations about Road 557’s condition is susceptible of social and economic policy analysis and is protected. See Autery, supra at 1531 (where a tree fell onto a road and killed plaintiff’s decedent, “it is unimportant whether the government actually balanced economic, social, and political concerns in reaching its decision.”); Baum v. U.S., 986 F.2d 716, 721 (4th Cir.1993) (“we find largely irrelevant the presence or absence of evidence that involved government agents which did or did not engage in a deliberative process before exercising their judgment.”); Rosebush, supra, at 443 (“the proper inquiry is whether the challenged actions are ‘susceptible to policy analysis,’ not whether they were the result of policy analysis.”). O’Brien and Monin provided testimony establishing the foundation for the social and economic policy that the USFS brings to these types of issues. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 9 of 18 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, the case law demonstrates that discretion exercised by USFS in this case is not lessened even if the USFS had prior knowledge of the alleged danger presented by boulders. Rosebush at 442. Plaintiff cannot collapse the question of whether DFE applies into a negligence issue. Autery, supra, at 1528. No controlling regulation or policy mandated that the USFS remove boulders from the hillside. Rather, “decisions concerning the proper response to hazards are protected from tort liability by the discretionary function exception.” Rosebush, at 443. “Decisions whether and how to make federal lands safe for visitors require making policy judgments protected by the DFE.” Id. This is dispositive; these decisions fall under the DFE. B. Decisions on whether to close roads are based on policy considerations. Plaintiff also alleges that “the Forest Service left the Road open despite the danger posed by the falling boulders.” See S.O.F. # 87; Joint Rule 26(f) Proposed Discovery Plan, Dkt. 12 at 2. Though it is not entirely clear at what point Plaintiff believes a road closure should have occurred – whether in response to Strohmeyer’s email in July, or upon immediate receipt of the Carlson “inspection” email that arrived after business hours at 10:25 p.m. the night before the 7 a.m. September 10, 2013 accident – Plaintiff has argued that the road should have been closed, as part of the broad USFS policy to protect the public. As with boulder remediations, there is no specific provision in the FSM, or rule or regulation on mandatory road closures. S.O.F. # 88. Rather, the applicable Federal regulations expressly give discretion to USFS Officials; as with the FSM, there is no mandate to close forest service roads under any of the conditions alleged in this case. See 36 C.F.R. § 261.50, Orders: (a) The Chief, each Regional Forester … and each Forest Supervisor may issue orders which close or restrict the use of described areas within the area over which he has jurisdiction. An order may close an area to entry or may restrict the use of an area by applying any or all of the prohibitions authorized in this subpart or any portion thereof. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 10 of 18 - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) The Chief, each Regional Forester… and each Forest Supervisor may issue orders which close or restrict the use of any National Forest System road or trail within the area over which he has jurisdiction. The discretionary language stated in this regulation creates a presumption that the DFE applies. See Terbush v. U.S., 516 F.3d 1125, 1130 (9th Cir.2008) (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). Further, similar to the evaluation of boulder remediations, O’Brien testified that he and USFS officials evaluate whether a prospective road closure would have a social or economic impact on the community, and weigh the forest service resources and manpower. S.O.F. #s 90-91. This process occurs on a case by case basis, and includes looking at the site and determining whether an issue exists there that can and should be fixed immediately, considering the impact on businesses and public. S.O.F. #s 91, 93, 94. If a decision for closure is called for, officials would provide that recommendation to the Forest Ranger. S.O.F. # 101. This determination is often an informal and intrinsic process (S.O.F. # 106), and done without a checklist or documentation. S.O.F. # 122. As Monin testified, road management is more of an art, performed as an intrinsic part of his job. S.O.F. # 122. Cf., Autery, supra at 1531 (unwritten inspection program for assessing potentially hazardous trees bordering a national park roadway falls within ambit of DFE). The Court should not second-guess that approach by USFS officials. See ARA Leisure Services v. U.S., 831 F.2d 193, 195 (9th Cir.1987) (“the purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions ground in social [sic] economic, and political policy through the medium of an action in tort.”) (internal quotations omitted). Thus, like hazard remediation, closures of forest service roads are subject to a discretionary process – even when a citizen reports a potentially hazardous condition. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 11 of 18 - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The USFS must evaluate the issue, and assess whether it will take action. The Court should not second-guess this process, despite Plaintiff’s argument. Plaintiff has argued that no such process occurred when the gate to Road 557 was actually closed – after the accident. See S.O.F. # 123; Joint Rule 26(f) Proposed Discovery Plan, Dkt. 12, at 4 (“Defendant claims it could not do what it actually did— albeit too late—close down the subject Road once it was clearly unsafe.”). Plaintiff is mixing apples and oranges. This gate closure is an inadmissible fact since it constitutes a subsequent remedial measure. See Rule 407; Shansky v. U.S., 164 F.3d 688, 698 (1st Cir.1999) (the court rejected learned counsel’s argument that a subsequent remedial measure undermined the government’s claim that social policy prevented it from addressing an alleged trip hazard before the accident, finding that subsequent remedial measures are inadmissible for purposes of rebutting the policy reasons for the DFE). District Engineering Technician Mike Bathen testified he closed the gate after the accident pursuant to the broad mandate to protect the public (S.O.F. #126) (which, as discussed in Section III above, officials implement through discretion) and to preserve evidence at an accident investigation scene. Bathen testified that he exercised discretion when he closed the gate. S.O.F. # 125. See Autery, supra, at 1529 (whether or not Park Service has broad safety policy to protect human life, employees have discretion to evaluate forest conditions before taking action); further, “it is unimportant whether the government actually balanced economic, social, and political concerns in reaching its decision.”). Id. at 1531. Finally, Plaintiff’s argument that the Carlson email should have prompted immediate closure of the road is immaterial. Plaintiff argues that this was “notice” of a hazard (though the subject line of the email says nothing about “danger,” is entitled “USFS Inspection will start with ME-0,” and merely describes the need to clear the road before inspections begin the following week. S.O.F. #s 38-39. This is a pure negligence argument. Whether or not this constitutes actual notice, negligence is not the proper Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 12 of 18 - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 measure in applying the DFE. Kennewick Irrigation District v. U.S., 880 F.2d 1018, 1029 (9th Cir.1989); Autery, supra at 1528 (the district court’s analysis improperly “collapse[s] the question of whether the Park Service was negligent into the discretionary function inquiry.”) IV. Plaintiff’s claim regarding a warning system is barred by the DFE. Plaintiff also alleges that “Defendant failed to enact a reasonable safety response plan to discover and respond to dangers.” S.O.F. # 140. Plaintiff, for instance, has argued that there was no one point of contact for a citizen like Carlson to report a dangerous condition in the national forest. Plaintiff apparently considers an overnight delay – from the time Carlson hit the “send” button to deliver his email to the time Bathen read it the next morning when his work day started (about nine hours later) – to be unreasonable. This additional claim also implicates policy judgments protected by the DFE. The relevant inquiry is whether any controlling statutes, regulations, mandated that USFS have a safety response plan. Rosebush at 442. But no mandatory regulation exists to establish an unspecified and undefined “response plan.” S.O.F. # 142. Setting aside whether Carlson’s email warned about an unreasonably dangerous condition (S.O.F. #s 38-39) – given that the boulders sat immutable until Plaintiff approached and manipulated them and caused another rockslide – Plaintiff can point to no regulation, policy, or established plan mandating creation of a warning system. Nor is there any evidence that the USFS ever considered one. S.O.F. # 143. That should be dispositive. A brief review of Plaintiff’s argument shows that this alleged omission is also susceptible to public policy analysis. To require a “safety response plan” would impact the economic interests and limited resources of the USFS. Id. For instance, Plaintiff has not described what a response system would look like or what its duties would be. Plaintiff has not specified whether this would be implemented on a national, regional, or forest level. Plaintiff has not specified which federal agency would be required to create Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 13 of 18 - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 it – whether the USFS, Bureau of Land Management, or some other agency. Plaintiff has not specified how the response plan would be funded, or which agency budget would fund it – or whether it would require the USFS or other agency to create a new sub-agency with a new subset of employees, or whether it would use existing employees with newly budgeted duties who would staff a central intake or warning system to deal with customer complaints. Nor has Plaintiff described how a team would respond, whether it would be via a 24-hour central phone system, an email system, a texting system, or twitter account. Plaintiff has not described the criteria the response team would use to evaluate the danger before responding. Plaintiff has not specified how many employees would respond to complaints and how quickly – whether it would be a 24 hour/7 day a week operator system with first emergency responders to address boulders. Plaintiff has not specified what training or certifications responders would need to address unspecified dangers. All these factors would have to be included in the unspecified agency’s budget and would have to be funded, to meet Plaintiff’s demands. S.O.F. #s 144-145. All these factors show that the alleged “omission” Plaintiff complains of is susceptible of economic policy analysis. The courts have held that decisions concerning the proper response to hazards are protected from tort liability by the DFE. In Consolidated, supra, plaintiffs alleged they had been exposed to radiation from the Hiroshima bombing and atmospheric testing of nuclear weapons, and argued that the United States was negligent because its operations plan failed to account for the resulting hazards. Similar to this case, plaintiffs argued that government officials were responsible for developing and carrying out safety plans and agency level directives – to conduct detonations without jeopardizing their safety. Id. at 994. Likewise, in this case, Plaintiff argues that USFS officials failed to account for the alleged danger about which Strohmeyer allegedly notified them, and failed to respond the Carlson email warning about boulders on Road 557. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 14 of 18 - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court in Consolidated noted that Congress drafted the DFE “to protect the government from claims, however negligently caused, that affected the governmental functions.” Id. at 993 (internal quotation marks omitted). The court reviewed an “Operation Plan” adopted by the Atomic Energy Commission, noting that safety decisions were first made by those charged with preparing it – similar to the broad mandates for public safety in the FSM and FSH, testified about by Monin, Apodaca, and Bathen. S.O.F. #s 23-24, 26, 63, 126. The plaintiffs in Consolidated made an argument similar to Plaintiff’s argument here: that the United States did not have an adequate warning plan. However, the court held that any attempt at judicial second-guessing would be “likely to interfere with important governmental activities.” Id. at 998. The court specifically held that the “conclusion is inescapable that every aspect of a warning program is a matter that falls within the discretionary function exception.” Id. It held that “if the decision to issue or not to issue a ‘warning’ is within the discretionary function exception, then logically the failure to consider whether to issue one is necessarily within the exception as well.” Id. at 998-999 (emphasis added). The court thus rejected the same argument Plaintiff makes in this case. V. Any claim regarding the use of warning signs is barred by the DFE. To the extent Plaintiff claims the United States bears fault for an alleged failure to erect warning signs for falling rocks on Road 557, this too is protected by the DFE. As with the issues of removing hazards or closing roads, no mandatory USFS policy exists for erecting warning signs. This too is discretionary within the USFS regulations. O’Brien testified that there are no mandatory USFS policies to put up warning signs. S.O.F. # 129. The regulations only create guidelines. S.O.F. # 130. He testified that Officials must apply engineering judgment when they decide whether to put up warning signs. Id. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 15 of 18 - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, the FSM manual itself states that “Forest Service signs and posters should be planned, designed, and installed according to the guidance in the Engineering Management (EM) series administrative document, EM-7100-15, ‘Standards for Forest Service Signs and Posters.’” S.O.F. # 131. (See FSM 7100 – Engineering Operations, Chapter – Zero Code, Policy 7103.1 signs and posters). Policy 7108.11 of the FSM specifically states that “these FS administrative documents have been developed for “guidance” of the USFS, contractors and federal and state agencies. S.O.F. # 133. The very use of the term “guidelines” in the title to the Engineering Management administrative document, EM-7100-15, “Sign and Poster Guideline for the Forest Service” shows that it creates discretion. As O’Brien testified, it also specifically states that engineering judgment guides the installation of warning signs on national forest land. See e.g., Chapter 3, 3.1: Consider traffic patterns, road design, and use of traffic control devices when planning and designing administrative and developed recreation sites. Site plans that are completed without careful consideration of both vehicular and pedestrian circulation patterns often result in site layouts that are overly complicated to sign and confusing for users. S.O.F. # 134. Further, “the decision to use a particular traffic control device at a specific location should be made on the basis of either an engineering study or the application of engineering judgment.” S.O.F. # 135. This demonstrates that the USFS uses its discretion in placing warning signs. Decisions to place signs also implicates economic policy. O’Brien testified that there are costs associated with placing signs in specific areas. S.O.F. # 136. These costs in turn create the need for additional costs of annual inspections and sign replacement to ensure that the signs stay in good condition, in the face of exposure to the elements and vandalism. S.O.F. # 137. The global costs to place, inspect, and replace signs for just one area is approximately $10,000 on an annual basis. S.O.F. # 138. Monin too testified about an economic burden of having to put up warning signs, particularly in an area where a rock might or might not fall sometime at unspecified time in the future. S.O.F. # 139. Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 16 of 18 - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Since there are no mandatory policies that prescribe placement of signs, the DFE governs this issue as well. See Childers, supra, at 976 (“decisions as to the precise manner in which NPS would warn the public as to trails which are left open, but unmaintained in the winter, clearly fall within the discretionary function exception.”) Conclusion Plaintiff seeks to improperly blur the distinction between his negligence claim, the Discretionary Function Exception, and a subsequent remedial measure that a USFS employee took right after the accident, when he closed the road pending an investigation. Plaintiff wishes to have the Court second-guess the United States’ exercise of discretion. However, the exception immunizes the United States when its employees exercise discretion grounded in social, economic and political policy. Plaintiff can point to no mandatory regulation, statute or regulation that requires that the USFS remediate a potential boulder hazard, close a road, place a warning sign, or create an “adequate” (albeit undefined) warning response system. All of these matters are within the discretion of USFS Officials and are thus protected by the discretionary function exception to the FTCA. The evidence shows that their acts and alleged omissions are susceptible of social and economic policy analysis and the United States is thus immune from liability. Since the evidence demonstrates that the USFS officials exercised their discretion regarding the road conditions on Road 557 about which Plaintiff complains, the Court should grant summary judgment. Respectfully submitted this 17th day of April, 2017. ELIZABETH A. STRANGE Acting United States Attorney District of Arizona s/ Laurence G. Tinsley, Jr.____ Laurence G. Tinsley, Jr. Assistant United States Attorney Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 17 of 18 - 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on April 17, 2017, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Kyle A. Israel ISRAEL & GERITY, PLLC 202 East Earll Drive, Suite 440 Phoenix, Arizona 85012 Attorney for Plaintiffs s/Irene Millsaps United States Attorney’s Office Case 3:16-cv-08033-NVW Document 28 Filed 04/17/17 Page 18 of 18