Donna Young, et al v. USA

Filing

FILED OPINION (ARTHUR L. ALARCON, A. WALLACE TASHIMA and MARY H. MURGUIA) REVERSED AND REMANDED. Judge: MHM Authoring. FILED AND ENTERED JUDGMENT. [9280171]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DONNA YOUNG; GERALD YOUNG,
husband and wife, and as guardians
for minor child J.Y.,
Plaintiffs-Appellants,

No. 13-35287
D.C. No.
3:11-cv-06043BHS

v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
July 11, 2014—Seattle, Washington
Filed October 17, 2014
Before: Arthur L. Alarcón, A. Wallace Tashima,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia

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YOUNG V. UNITED STATES
SUMMARY*

Federal Tort Claims Act
The panel reversed the district court’s dismissal for lack
of subject matter jurisdiction of a Federal Tort Claims Act
action brought against the United States for negligently
failing to warn visitors at Mount Rainier National Park of a
known hazard.
Donna Young sustained severe injuries when she fell into
a twelve-foot-deep hole that had formed underneath the snow
near a buried transformer in an area near the Park’s main
visitor center, and she sued the United States for damages
relating to the injuries. The district court dismissed Young’s
complaint as barred by the discretionary function exception
to the Federal Tort Claims Act (“FTCA”).
The panel held that the National Park Service’s decision
not to warn of the known hazard was not susceptible to policy
considerations, and therefore it was not protected under the
discretionary function exception to the FTCA. The panel
held that the district court erred in determining, at least at this
stage, that it lacked jurisdiction over the case. The panel
remanded for further proceedings.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Wayne Mitchell, Anderson & Mitchell PLLC, Seattle,
Washington, for Plaintiffs-Appellants.
Priscilla To-Yin Chan (argued), Assistant United States
Attorney; Jenny A. Durkan, United States Attorney, Seattle,
Washington, for Defendant-Appellee.

OPINION
MURGUIA, Circuit Judge:
Plaintiffs Donna and Gerald Young and their minor
daughter J.Y. appeal the district court’s order dismissing their
complaint against the United States for negligently failing to
warn visitors at Mount Rainier National Park of a hazard that
the National Park Service both knew of and created. Donna
sustained severe injuries when she fell into a twelve-footdeep hole that had formed underneath the snow in an area
near the Park’s main visitor center. The Youngs sued the
United States for damages relating to Donna’s injuries, but
the district court dismissed their complaint for lack of subject
matter jurisdiction, finding the action barred by the
discretionary function exception to the Federal Tort Claims
Act. See 28 U.S.C. § 2680(a). On appeal, the United States
maintains that the Park Service’s decision not to warn of the
hazard was policy-driven—that is, guided by policies relating
to access, historic and natural resource preservation, and
conservation—and is therefore protected under the
discretionary function exception. We conclude that the Park
Service’s decision not to warn of the known hazard was not
susceptible to those policy considerations and therefore is not

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protected under the exception. Accordingly, we reverse the
district court’s judgment and remand this case for further
proceedings.
I. Facts and Procedural History
Mount Rainier National Park (“the Park”) was established
in 1899 as the fifth national park in the United States. Over
97 percent of the Park’s 235,000 acres is dedicated wilderness
area, while the remaining three percent includes developed
areas such as roadways and visitor centers. In 1997, the
entire park was designated as a National Historic Landmark
District.
Each year, the Park receives about 1.5 to 2 million
visitors, many of whom have little or no experience with
alpine environments. Most of those visitors stop at the
Jackson Visitor Center (JVC), the Park’s most popular visitor
area, at some point during their stay. The JVC is located in
an area of the Park known as “Paradise,” which is situated on
the southern slope of Mount Rainier and receives an average
annual snowfall of 641 inches. In recent years, Paradise has
been called “one of the snowiest places on the planet.”
When the JVC was constructed in 2008, the National Park
Service (NPS or “the Park Service”) installed a transformer
nearby to power the visitor center building. The NPS
installed the transformer approximately 150 feet away from
the visitor center building in a snowfield across a two-lane
road that services the area. According to NPS staff, the area
in which the transformer is located is “accessible but it’s not
attractive,”; “[i]t’s not one of the areas that [the NPS]
develop[s] and maintain[s] to get people out of the parking lot
and onto the snow.” The transformer operates year-round,

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releasing heat as it transfers electricity from nearby power
lines to the JVC building.
The snowfield in which the transformer is located often
accumulates more snow than other areas of the Park, because
the NPS’s road-plowing operations deposit snow there during
in the winter. As a result, the field generally is covered in
snow between November and mid-July. At one point, the
area surrounding the transformer was marked with stakes so
that the Park’s snowplow operator would know where the
transformer was located; the Park’s staff was afraid that “the
weight of the [snowplow], which is considerable, could
collapse onto the transformer” underneath the snow. At the
time of the incident giving rise to this appeal, there were no
warning signs at or near the transformer’s location.
Plaintiffs Donna and Gerald Young and their minor
daughter J.Y. live in Santa Clara, California. In June 2010,
they decided to “explore the Northwest” and travel to
Washington. While in Washington they visited Mount
Rainier National Park, where they hoped to “look around a
little bit” and get their National Park Passport Books stamped
at the JVC. They arrived at the Park in the early evening, just
before the JVC was scheduled to close.
After the Youngs had parked their car, Donna and J.Y.
went into the visitor center, looked around, got their passport
books stamped, and then left the JVC to look for Gerald
outside. They found Gerald standing in the snowfield across
the road, where he was taking pictures of the mountain views.
J.Y. walked away from her parents to explore snowfield.
While she was exploring, she found a small hole, about two
or three inches in diameter, in the snow. She asked Donna to
come look at it.

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When Donna approached the hole, the snow beneath her
collapsed, and she fell approximately twelve feet, landing on
a concrete pad on the ground underneath the transformer.
According to the NPS Case Incident Record documenting
Donna’s fall, the transformer’s heat had caused the snow
above it to “mel[t] out,” creating a large cavity beneath a
“snow ceiling [that] was thin directly overtop of the
transformer.” Donna suffered severe injuries as a result of the
fall.
Plaintiffs sued the United States under the Federal Tort
Claims Act (FTCA), which permits individuals to sue the
government for money damages to compensate for injuries
arising out of the negligent acts of government employees.
See 28 U.S.C. § 1346(b)(1). In their complaint, Plaintiffs
alleged that the NPS negligently failed to warn Plaintiffs of
a known, latent hazard (the transformer) the agency had
created in the area of the JVC. Plaintiffs sought damages for
physical injuries, medical costs, economic losses, pain and
suffering, and loss of consortium.
The government moved to dismiss Plaintiffs’ complaint
for lack of subject matter jurisdiction, see Fed. R. Civ. P.
12(b)(1), arguing that Plaintiffs’ claim was barred by the
discretionary function exception to the FTCA, see 28 U.S.C.
§ 2680(a) (excepting from the FTCA’s waiver of immunity
“[a]ny 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”). According to the government, the NPS’s decision
not to place warning signs in the area of the transformer was
a discretionary, policy-driven decision involving

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consideration of “NPS’s policies and practices with respect to
the discovery, warning and elimination of hazards.”
The district court, applying the two-step test established
in Berkovitz v. United States, 486 U.S. 531, 536–37 (1988),
for determining whether the discretionary function exception
protected the agency’s actions, granted the government’s
motion to dismiss. The court concluded that the NPS’s
decisions regarding “maintenance of the Park, decisions to
identify and warn visitors from hazards, and the protection of
visitors from hazards” were policy-driven decisions protected
under the exception. Plaintiffs timely appealed the district
court’s order.
II. Standard of Review
We review de novo the district court’s order dismissing
Plaintiffs’ complaint for lack of subject matter jurisdiction.
Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir.
2008). In doing so, we generally accept as true the factual
allegations of Plaintiffs’ complaint and ask “whether the
allegations state a claim sufficient to survive a motion to
dismiss.” United States v. Gaubert, 499 U.S. 315, 327 (1991)
(citing Berkovitz, 486 U.S. at 540). Allegations of
jurisdictional facts, however, are not afforded presumptive
truthfulness; on a motion to dismiss for lack of subject matter
jurisdiction, the court may hear evidence of those facts and
“resolv[e] factual disputes where necessary.” Robinson v.
United States, 586 F.3d 683, 685 (9th Cir. 2009) (internal
quotation marks omitted) (alteration in original); see also
Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.
1983). We ordinarily review those factual findings for clear
error. Robinson, 586 F.3d at 685.

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When the jurisdictional motion “involv[es] factual issues
which also go to the merits,” a court should employ the
standard applicable to a motion for summary judgment
because “resolution of [those] jurisdictional facts is akin to a
decision on the merits.” Augustine v. United States, 704 F.2d
1074, 1077 (9th Cir. 1983). In that posture, the moving party
“should prevail only if the material jurisdictional facts are not
in dispute and the moving party is entitled to prevail as a
matter of law.” Id. Although Plaintiffs bear the initial burden
to establish subject matter jurisdiction under the FTCA, it is
the government’s burden to establish that the discretionary
function exception applies. Oberson v. U.S. Dep’t of Agric.,
514 F.3d 989, 997 (9th Cir. 2008).
In this case, the question whether the Park Service knew
or should have known of the hazard created by the
transformer is a disputed issue of jurisdictional fact that is “so
intertwined” with the substantive dispute that resolution of
the former depends, at least in part, on resolution of the latter.
See Augustine, 704 F.2d at 1077 (“[W]here the jurisdictional
issue and the substantive issue are so intertwined that the
question of jurisdiction is dependent on factual issues going
to the merits, the jurisdictional determination should await a
determination of the relevant facts on either a motion going
to the merits or at trial.”). Thus, if the fact of the Park
Service’s knowledge of the hazard changes our analysis as to
whether the discretionary function exception applies, then
Plaintiffs’ complaint should not have been dismissed at this
stage, and the question of jurisdiction instead should have
awaited a determination on the merits.

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III. Analysis
FTCA waives the government’s immunity from suits
arising out of certain negligent acts of federal employees. See
28 U.S.C. § 1346(b)(1).1 The government’s immunity is
restored, however, under what is known as the “discretionary
function exception,” with respect to claims arising out of
certain discretionary duties of federal agencies and
employees. See 28 U.S.C. § 2680(a). The exception excludes
from the FTCA’s waiver of immunity
[a]ny 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.
Id.
To determine whether a particular claim is barred by the
FTCA’s discretionary function exception, we must conduct
1
Specifically, the FTCA waives the government’s immunity with
respect to claims for money damages for

injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of
any employee of the Government while acting within
the scope of his office or employment, 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).

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a two-step inquiry. See Berkovitz, 486 U.S. at 536–37. At
the first step, we must consider whether the agency’s
allegedly negligent conduct is discretionary—that is,
“whether the action is a matter of choice for the acting
employee.” Id. at 536. Conduct is not discretionary unless it
“involves an element of judgment or choice.” Id. Thus, the
exception will not apply “when a federal statute, regulation,
or policy specifically prescribes a course of action for an
employee to follow” but the employee fails to follow it. Id.
At the second step, we must determine whether the particular
exercise of discretion was “of the kind that the discretionary
function exception was designed to shield.” Id. The decision
must be one that is “grounded in social, economic, and
political policy.” Id.
“Whether a challenged action falls within the
discretionary function exception requires a particularized
analysis of the specific agency action challenged.”
GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th
Cir. 2002). Thus, before turning to Berkovitz’s two-step
inquiry, we must first identify Plaintiffs’ “specific allegations
of agency wrongdoing.” 486 U.S. at 540. To identify the
particular agency conduct with which Plaintiffs take issue, we
look to the allegations of Plaintiffs’ complaint. See Whisnant
v. United States, 400 F.3d 1177, 1184–85 (9th Cir. 2005).
In their complaint, Plaintiffs alleged that the Park Service
employees were negligent “when they failed to protect Donna
Young from falling into the sinkhole caused by the
transformer, failed to warn Donna Young of the presence of
the latent, dangerous sinkhole, and failed to make the area
safe for visitors.” Plaintiffs further alleged that Park Service
employees knew or should have known that the transformer
would emit heat, that it would thereby create a large cavern

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in the snow, and that park visitors would walk on the snow in
the area of the hazard. In other words, Plaintiffs alleged that
the Park Service was negligent in failing to warn of a hazard
that it both knew of and created.
The district court framed Plaintiffs’ allegations more
broadly, however. It concluded that “the conduct at issue is
the NPS’s maintenance of the Park, decisions to identify and
warn visitors from hazards, and the protection of visitors
from hazards.” Framed in that way, the district court assessed
whether NPS’s decisions about whether to warn the public of
“hazards of a general nature within the park, whether known
or unknown” and however created, were policy driven.
Plaintiffs take issue with that characterization, contending
that it fails to account for their allegations that the agency
knew of the hazard and created it. We agree.
Our cases make clear that when determining whether the
discretionary function exception applies in a particular case,
“the question of how the government is alleged to have been
negligent is critical.” Whisnant, 400 F.3d at 1185. Had
Plaintiffs actually alleged, for example, that the NPS was
negligent in failing to warn of any danger, whether known or
unknown and however created, their claim would likely be
barred, just as the district court concluded. See, e.g., Terbush,
516 F.3d at 1137; Blackburn v. United States, 100 F.3d 1426.
1434 (9th Cir. 1996); Valdez v. United States, 56 F.3d 1177,
1178 (9th Cir. 1995); Childers v. United States, 40 F.3d 973,
975 (9th Cir. 1994). But that is not what Plaintiffs alleged.
Instead, they alleged that the government was negligent in
failing to warn of a particular danger that it knew of and
created—allegations that, in our view, are meaningfully
different because they encompass conduct that may not be
shielded by the Park Service’s broad discretion. The

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distinction is therefore important, and the district court erred
in mischaracterizing Plaintiffs’ allegations.
Nonetheless, the government urges us to adopt the district
court’s broad characterization, lest the analysis
“impermissibly collaps[e] the discretionary-function inquiry
into a question of whether the government was negligent.”
But the government misses the point. We recognize, as we
have before, that “the question of whether the government
was negligent is irrelevant to the applicability of the
discretionary function exception.” Whisnant, 400 F.3d at
1185. By contrast, the question of how the government was
negligent remains “critical” to the discretionary function
exception inquiry—indeed, determining the precise action the
government took or failed to take (that is, how it is alleged to
have been negligent) is a necessary predicate to determining
whether the government had discretion to take that action.
See generally id.
In our view, the “specific allegatio[n] of agency
wrongdoing” that we must use in determining whether the
discretionary function exception applies in this case is
Plaintiffs’ allegation that NPS staff failed to warn of a known,
latent hazard that the agency itself created. With that
allegation of wrongdoing in mind, we turn to the Berkovitz
two-step inquiry.
A.
In this case, the analysis at Berkovitz’s first step—whether
the decision at issue “involve[d] an element of judgment or
choice”—is relatively straightforward. The parties agree that
the Park’s decision not to place warnings signs at or near the
transformer was a discretionary decision. Neither party

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identifies any statute, regulation, or policy prescribing any
specific course of conduct for warning against hazards the
agency created. The conduct was therefore a matter of choice
for the Park Service staff and was discretionary under
Berkovitz.
B.
The parties’ dispute lies in the analysis at Berkovitz’s
second step—whether the decision was policy-driven. See
486 U.S. at 536–37. The discretionary function exception
protects against “judicial ‘second-guessing’ of legislative and
administrative decisions” only in certain circumstances. Id.
(quoting United States v. Varig Airlines, 467 U.S. 799, 814
(1984)). Such instances generally involve decisions that are
“based on considerations of public policy”—specifically,
“social, economic, and political policy.” Id. at 537.
Our court has acknowledged the “weaving lines of
precedent regarding what decisions are susceptible to social,
economic, or political policy analysis,” particularly in cases
in which the allegation of agency wrongdoing involves a
failure to warn. Whisnant, 400 F.3d at 1181. We have noted
that “Government actions can be classified along a spectrum,
ranging from those ‘totally divorced from the sphere of policy
analysis,’ such as driving a car, to those ‘fully grounded in
regulatory policy,’ such as the regulation and oversight of a
bank.” Id. (quoting O’Toole v. United States, 295 F.3d 1029,
1035 (9th Cir. 2002)).
We begin by reviewing the specific policies that the
government contends formed the basis of the agency’s
decision. The government first points to the Organic Act,

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16 U.S.C. §§ 1–4, the statute through which the National Park
Service was created. The Organic Act provides,
The service thus established shall promote and
regulate the use of the Federal areas known as
national parks, monuments, and reservations
hereinafter specified, . . . by such means and
measures as conform to the fundamental
purpose of the said parks, monuments, and
reservations, 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. We have recognized that the Organic Act
“sets forth the broad policy considerations that govern NPS’s
management of national parks” and that, under the Organic
Act, “[m]uch of the NPS’s work is ‘grounded’ in [a] broad
mandate to balance conservation and access.” Terbush,
516 F.3d at 1130.
The government also relies on more specific policies, all
of which were established pursuant to the NPS’s authority
under the Organic Act, to justify its decision not to warn of
the hazard created by the transformer. Specifically, it points
to the NPS’s 2006 Management Policies and the NPS’s
Director’s Order #50C as additional bases for its conduct.
The NPS’s 2006 Management Policies apply nationwide
and, like the Organic Act, also require the NPS, in providing
for visitor safety, to balance its safety measures against
considerations of conservation and access:

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The saving of human life will take precedence
over all other management actions as the Park
Service strives to protect human life and
provide for injury-free visits. The Service
will do this within the constraints of the 1916
Organic Act.
The primary—and very
substantial—constraint imposed by the
Organic Act is that discretionary management
activities may be undertaken only to the
extent that they will not impair park resources
and values.
The policies go on to state that, at the park-specific level,
“[t]he means by which public safety concerns are to be
addressed is left to the discretion of superintendents and other
decision-makers . . . who must work within the limits of
funding and staffing.” “Examples include decisions about
whether to install warnings signs . . . .” Similarly, under
Director’s Order #50C, park superintendents must “use their
discretion to determine the level of program resources and the
types of programs needed to manage visitor risk within their
park.” “Superintendents should strive to minimize the
frequency and severity of visitor incidents by developing a
range of appropriate prevention strategies . . . includ[ing] . . .
where appropriate, feasible, and consistent with the park
mission, providing warnings about dangerous conditions
(e.g., weather, construction areas) that may cause risk to
visitors.”
Director’s Order #50C specifies that
superintendents should exercise that discretion in light of
“NPS policies relating to public safety, health, and the
environment.”
Against the backdrop of those and other related agency
policies, our cases have identified important distinctions

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between protected and unprotected agency actions. The
NPS’s decisions with respect to the design and construction
of roadways and trails, for example, are discretionary
decisions that are “clear[ly] link[ed]” to social and political
policies relating to access and resource preservation. ARA
Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir.
1987); see also Terbush, 516 F.3d at 1137 (holding that the
NPS’s decision not to warn of a rockfall hazard involved a
“process of identifying and responding to hazards in the wild”
and “implicate[d] the NPS’s broader policy mandates to
balance access with conservation and safety”); Childers,
40 F.3d at 975 (concluding that the NPS’s decision not to
warn of unmaintained trails was “inextricably linked to
central policy questions” relating to access and preservation).
Such decisions are therefore protected under the discretionary
function exception.
NPS decisions not to provide warnings at other natural
features within the national parks, even where the NPS has
provided access to those features, may likewise be protected.
In Valdez v. United States, the plaintiffs sued the United
States alleging a failure to erect barriers at the top of certain
waterfalls in Kings Canyon National Park and a failure to
warn of the dangers the waterfalls posed to the public.
56 F.3d at 1178. Relying on Childers, we held that the NPS’s
decision not to warn of natural, obvious risks “clearly
implicates a choice between the competing policy
considerations of maximizing access to and preservation of
natural resources versus the need to minimize potential safety
hazards.” Id. at 1180. A year later, we held that the NPS’s
decision not to warn of the dangers of diving off Stoneman
Bridge at Yosemite National Park was protected by the
discretionary function exception because the decision was
“based on considerations of visitor enjoyment, preservation

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of the historical features of the bridge, the need to avoid a
proliferation of man-made intrusions, and protection of
wildlife and the general riparian environment.” Blackburn,
100 F.3d at 1434.
Those cases suggest that, when the NPS decides whether
to warn of dangers that exist naturally in its national parks,
those decisions generally are guided by considerations of
policy. The NPS must balance, for example, its purpose to
provide visitor access to park resources against its need to
protect the public from harm. It must also consider its
obligation to preserve the natural environment “for the
enjoyment of future generations.” See 16 U.S.C. § 1. And,
at times, it must consider how best to protect wildlife and
park ecosystems and to preserve historical features of the
lands it maintains.
But those policies, while crucial to the NPS’s operations,
cannot shield every decision the Park Service makes. For that
reason, we have declined to “quickly accept that every minute
aspect of the NPS’s work is touched by the policy concerns
of the Organic Act.” Terbush, 516 F.3d at 1130. Because
“[i]t is not sufficient for the government merely to [wave] the
flag of policy as a cover for anything and everything it does
that is discretionary,” we have demanded “some support in
the record” that the particular decision the NPS made was
actually susceptible to analysis under the policies the
government identified. Id. at 1134. Cases in which the
government cannot provide such support delimit the scope of
the discretionary function exception’s reach.
Summers v. United States was such a case. In Summers,
the plaintiffs alleged that the government had failed to warn
visitors at Rodeo Beach of the hazards of stepping on hot

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coals at the beach’s fire pits. 905 F.2d 1212, 1214 (9th Cir.
1990). The government, in response, offered “no evidence
. . . that NPS’s failure to post warnings of the sort that would
have prevented [the plaintiff’s] injury was the result of a
decision reflecting the competing considerations of the
Service’s sign policy.” Id. at 1215. Finding “nothing in the
record to indicate that the failure to provide signs resulted
from a decision grounded in economic, social, or political
policy,” we concluded that the government’s failure to warn
was not protected by the discretionary function exception. Id.
at 1215–16. We reached a similar conclusion in Oberson v.
United States Department of Agriculture, 514 F.3d at 997–98,
noting that the government offered “no evidence to show that
its failure to post a warning [at the location of a known
hazard] was the result of a policy decision.”
Our decision in Sutton v. Earles, 26 F.3d 903, 910 (9th
Cir. 1994), also dealt with a circumstance in which the
agency’s decision was not susceptible to policy analysis. In
Sutton, we held that the Navy’s failure to post speed limit
signs after it placed buoys in navigable waterways was not
protected by the discretionary function exception. Faced with
a circumstance where, as here, the hazard at issue was both
known to and created by the agency, we concluded that the
agency’s decision not to warn of that hazard was not policybased. Specifically, we held that “[a] decision not to warn of
a specific, known hazard for which the acting agency is
responsible is not the kind of broader social, economic or
political policy decision that the discretionary function
exception is intended to protect.” Id.
*

*

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Relying on those cases to guide our analysis, we must
decide where this case falls along the spectrum of
government conduct we have described. We conclude that
the NPS’s decision not to warn of the latent dangers
associated with the transformer near the JVC was a decision
“totally divorced” from the policies that the government has
identified as the basis for its decision. See Whisnant,
400 F.3d at 1181. In so doing, we reject the government’s
argument that its decision required it to “balance safety,
access, and preservation” in making judgments about
(1) managing snow, (2) prioritizing inspections,
(3) prioritizing and responding to hazards once identified, and
(4) deciding “what signs, poles, fences or other barriers
would best educate, deter and prevent the public from
accessing places where hazards may be found.”
We have little doubt that NPS staff members make
discretionary decisions every day about managing snow,
prioritizing inspections, and responding to hazards. But those
decisions are not at issue in this case, so we reject the
government’s efforts to make this case about them. Relying,
as we must, on the facts alleged in Plaintiffs’ complaint, this
case is about the NPS’s decision not to place a warning sign
at the location of the buried transformer, even though the
NPS knew that the transformer emitted heat, knew that it was
buried under twelve feet of snow, and knew that it was
located right across the road from the Park’s most popular
visitor area. The NPS’s decision in that respect is not
susceptible to considerations of any social, economic, or
political policy that the government has identified.
As noted, the government argues that its decision was
driven by policy considerations relating to access, historic
and natural resource preservation, and conservation. It

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contends that this case is just like Childers, Blackburn, and
Valdez—cases in which the agency had failed to warn in
circumstances that we found to implicate considerations of
access, resource preservation, and conservation. See
Childers, 40 F.3d at 975–76 (unmaintained trails relate to
access and resource preservation); Blackburn, 100 F.3d at
1434 (historic bridge relates to access, preservation, and the
environment); Valdez, 56 F.3d at 1180 (barriers atop
waterfalls relate to access and resource preservation). But
here, those considerations are irrelevant.
The snowfield in which the transformer is located is
approximately 150 feet from the visitor center building.
While the snowfield is accessible—and, indeed, often
accessed—NPS staff members claim that it is “not attractive.”
While the NPS was aware that visitors can access the area,
the area is “not one of the areas that [the NPS] develop[s] and
maintain[s] to get people out of the parking lot onto the
snow.” In other words, although visitors access the area of
the transformer, the NPS does not seek to provide access to it.
Thus, this is not a case in which the government is faced with
policy considerations related to providing access to visitors in
the face of known dangers.
This is also not a decision susceptible to policy matters
such as historic or natural resource preservation. NPS staff
members suggest that their decisions about where to place
warning signs throughout the Park are often affected by their
responsibility to protect the “look and feel of [the] historic
district” and the “natural environment [and] the ecosystem.”
They note that “[t]he superintendent has the discretion to act
upon hazards that would help prevent serious injury or
fatality based on a number of things, and that includes the
mission of what our legal mandate is, which is to protect –

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protect the park resources and the values that are in the park,
and to ensure that they’re going to be there for future
generations.” But their decision not to warn about the
dangers associated with the transformer—infrastructure that
itself takes away from the “look and feel of the historic
district”—cannot reasonably be “linked” to those policies.
Where, as here, the hazard is not located “in the wild,” see
Terbush, 516 F.3d at 1137, has no connection to visitor
enjoyment or “protection of wildlife and the general alpine
environment,” see Blackburn, 100 F.3d at 1434, and was
created by the agency itself, the Park Service’s decision not
to warn can only be considered “totally divorced” from the
policies on which it purports to rely, see O’Toole, 295 F.3d at
1035.
IV. Conclusion
The Organic Act and the regulations promulgated
pursuant to its directive afford the National Park Service
substantial discretion in making decisions related to the
operation of our national parks. In making those decisions,
NPS staff must consider policies concerning access; visitor
enjoyment; historical, wildlife, and natural resource
preservation; and conservation. 16 U.S.C. § 1. Above all,
however, the Park Service must “striv[e] to protect human life
and provide for injury-free visits.” Where, as here, warning
against a hazard known to and created by the NPS would not
implicate concerns for access, visitor enjoyment, or
environmental preservation, the only policy the NPS must
consider is one it appears to have ignored: visitor safety.

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In a similar case, we stated that
a failure to warn involves considerations of
safety, not public policy. It would be wrong
to apply the discretionary function exception
in a case where a low-level government
employee made a judgment not to post a
warning sign, or to erect a guardrail, or to
make a safer path. Such a judgment would be
no different than a judgment made by a
private individual not to take certain measures
to ensure the safety of visitors. To interpret
such a judgment as discretionary would be too
expansive an interpretation of [Congress’s]
intent in creating the discretionary function
exception.

Faber v. United States, 56 F.3d 1122, 1125 (9th Cir. 1995).
Here, there is no apparent connection between the agency’s
decision and the policies it identifies as the basis for that
decision. The only rationale for protecting the decision
therefore “falls away.” See ARA Leisure Servs., 831 F.2d at
195. For that reason, we conclude that the NPS’s decision
not to warn of a hazard that it knew of and created—and that
it placed near a visitor center serving 1 million visitors
annually—cannot be shielded by the FTCA’s discretionary
function exception.2 Because that is so, the district court
erred in determining, at least at this stage, that it lacked
jurisdiction over this case. We therefore reverse the district

2

Construing the facts in the light most favorable to the Plaintiffs, as we
are required to do under Augustine, 704 F.2d at 1077, we assume that the
Park Service knew of the hazard created by the transformer.

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court’s judgment and remand the case for further
proceedings.
REVERSED AND REMANDED.