Chadd Ex Rel. Estate of Boardman v. United States , 794 F.3d 1104 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN H. CHADD, as personal No. 12-36023
representative of the Estate of Robert
M. Boardman, deceased, and for D.C. No.
herself, 3:11-cv-05894-
Plaintiff-Appellant, RJB
v.
OPINION
UNITED STATES OF AMERICA,
NATIONAL PARK SERVICE,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
May 16, 2014—Seattle, Washington
Filed July 27, 2015
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge O’Scannlain;
Concurrence by Judge Berzon;
Dissent by Judge Kleinfeld
2 CHADD V. U.S. NAT’L PARKS SERVICE
SUMMARY*
Federal Tort Claims Act
The panel affirmed the district court’s dismissal for lack
of subject matter jurisdiction of a Federal Tort Claims Act
action brought against the United States alleging claims
arising from a fatal mountain goat attack on an Olympic
National Park visitor.
The plaintiff, the wife of the deceased Park visitor,
alleged that Park officials breached their duty of reasonable
care by failing to destroy the goat in the years leading up to
her husband’s death.
The FTCA’s discretionary function exception retains the
United States’ sovereign immunity for any claim based on
“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.”
The panel held that the discretionary function exception
applied. At step one of the discretionary function analysis,
the panel held that there was no extant statute, regulation, or
policy directive that required Park officials to destroy the goat
prior to the Park visitor’s death, and Park officials had
discretion in deciding how to manage the problematic goat.
At step two of the analysis, the panel held that the Park
officials’ decision to use non-lethal methods to manage the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHADD V. U.S. NAT’L PARKS SERVICE 3
goat was susceptible to policy analysis, and the discretionary
function exception applied.
Judge Berzon concurred with Judge O’Scannlain’s
opinion and its application of the discretionary function
exception to the facts of the case, but she believes that Miller
v. United States, 163 F.3d 591, 593 (9th Cir. 1998) (holding
that the government decision at issue need not be actually
grounded in policy considerations, but need only be
susceptible to a policy analysis), should be reconsidered.
Judge Kleinfeld dissented because he would hold that the
negligence in this case fell outside the discretionary function
exception.
COUNSEL
Shelby R. Frost Lemmel, Masters Law Group, PLLC,
Bainbridge Island, WA, argued the cause and filed the briefs
for the plaintiff-appellant. With her on the briefs was
Kenneth W. Masters, Masters Law Group, PLLC, Bainbridge
Island, WA.
Teal Luthy Miller, Assistant United States Attorney, Seattle,
WA, argued the cause and filed the brief for the defendant-
appellee. With her on the brief were Stuart F. Delery, Acting
Assistant Attorney General, U.S. Department of Justice Civil
Division, Washington, DC; Jenny A. Durkan, United States
Attorney, Seattle, WA; and Mark B. Stern, Appellate Staff,
U.S. Department of Justice Civil Division, Washington, DC.
4 CHADD V. U.S. NAT’L PARKS SERVICE
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the United States may be sued
under the Federal Tort Claims Act for the actions of the
National Park Service relating to a mountain goat that
attacked and killed a Park visitor.
I
A
Established in 1938, Olympic National Park (“Olympic”
or the “Park”) spans 922,650 acres and hosts three million
visitors each year. Among the many species of animal
residing in Olympic is the mountain goat, which is not native
to the area, having been introduced into the Park decades ago.
Mountain goats possess dangerously sharp horns, and males
typically weigh around 242 pounds. Prior to the incident in
this case, there had been three reported, non-lethal attacks on
people by mountain goats at other national parks, none of
which were known to officials at Olympic.
Normally, mountain goats are reclusive animals, but the
goats at Olympic frequently seek out areas visited by humans
because of the salt humans leave behind. After repeated
exposure to humans, goats can become habituated to their
presence, which entails the loss of the mountain goat’s fear
response. Around 2004, when the goat population at
Olympic was near 300, officials at the Park began receiving
reports that some goats were becoming habituated; by 2006,
goats began displaying aggressive behavior, such as standing
CHADD V. U.S. NAT’L PARKS SERVICE 5
their ground, following or chasing humans, pawing the
ground, and rearing up.
Park officials decided to investigate the situation
personally. They hiked the trails and observed the mountain
goats demonstrating progressively habituated and sometimes
aggressive behavior. Officials placed collars on the goats
with Global Positioning System devices in order to track their
movements and to collect further data.
Based on these observations, the Park began warning
visitors about the goats’ behavior. Visitors were given verbal
warnings, and warning signs were posted on trails. Officials
began employing aversive conditioning techniques, such as
shooting the goats with paint balls and bean-bags, in order to
change the goats’ behavior. Officials focused their efforts on
a few areas, including Klahhane Ridge.
Nonetheless, officials continued to receive reports in 2009
and 2010 about a large male goat chasing visitors and
displaying other signs of aggression. Officials began
discussing other management options for the problematic
goat, but, as stated by Park Ranger Sanny Lustig, the solution
“was not clear-cut.” Sometime before July 30, 2010,
Olympic Superintendent Karen Gustin, Wildlife Branch Chief
Dr. Patti Happe, and Ranger Lustig met to discuss
management options for the goat. They coordinated their
reporting and hazing efforts and decided to intensify the
aversive conditioning. Dr. Happe was to investigate the
possibility of relocating the goat. On July 30, she emailed
Washington State Department of Fish and Wildlife biologist
Dr. Donny Martorello to ask whether they “had an option for
translocation.” She described the goat and stated that it was
“not responding to [their] efforts to have him keep . . . a
6 CHADD V. U.S. NAT’L PARKS SERVICE
greater distance from people.” Dr. Happe wrote that, because
the goat had been “increasingly aggressive,” Olympic wished
to “explore other management options for [the goat],
including relocation from the area.”
Over the next two months, there were continued reports
of goats pawing the ground, preventing hikers from passing,
and acting aggressively. On October 16, 2010, Robert
Boardman and his wife, Susan Chadd, were hiking on the
Switchback trail to Klahhane Ridge with a friend, Pat Willits,
when a large male goat attacked Boardman, goring his leg
with its horns and severing his femoral artery. Boardman
died of his wound. Park officials found and destroyed a 370-
pound male goat with blood on its horns within hours of the
attack.
B
Chadd, on her own behalf and as representative of
Boardman’s estate, filed suit against the United States and the
National Park Service (the “Service”) under the Federal Tort
Claims Act (FTCA), alleging that Park officials breached
their duty of reasonable care by failing to destroy the goat in
the years leading up to Boardman’s death.1 The government
moved to dismiss the case under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction,
simultaneously filing declarations and other evidence in
support of the motion. The parties proceeded with discovery.
1
Jacob Haverfield, Boardman’s stepson, was initially a plaintiff in this
case, but he later moved the district court for voluntary dismissal of his
claims. For this reason, the district court’s order dismissing Chadd’s suit
for lack of subject matter jurisdiction did not list Haverfield as a plaintiff.
He is, therefore, not a party to this appeal.
CHADD V. U.S. NAT’L PARKS SERVICE 7
On August 20, 2012, the district court granted the
government’s motion to dismiss.2 Chadd timely appealed.
II
As a sovereign, the United States is immune from suit
unless it waives such immunity. FDIC v. Meyer, 510 U.S.
471, 475 (1994). The United States has waived its sovereign
immunity with regard to tort liability under the Federal Tort
Claims Act “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). “The Act did
not waive the sovereign immunity of the United States in all
respects, however; Congress was careful to except from the
Act’s broad waiver of immunity several important classes of
tort claims.” United States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).
Among these is the discretionary function exception
contained in 28 U.S.C. § 2680(a). Id.
The discretionary function exception retains the United
States’s sovereign immunity for “[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.” 28 U.S.C.
§ 2680(a). This exception “marks the boundary between
Congress’ willingness to impose tort liability upon the United
2
In addition to her claim regarding the Park’s management of the goat
in the lead-up to Boardman’s death, Chadd originally claimed that the
Park’s response to the goat attack was deficient. The district court
dismissed that claim in a separate order, which Chadd has not appealed.
8 CHADD V. U.S. NAT’L PARKS SERVICE
States and its desire to protect certain governmental activities
from exposure to suit by private individuals.” Varig,
467 U.S. at 808. It is designed 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 814. The government
bears the burden of proving that the discretionary function
exception applies. Bailey v. United States, 623 F.3d 855, 859
(9th Cir. 2010).
The Supreme Court has established a two-step process for
evaluating whether a claim falls within the discretionary
function exception. 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) (internal quotation
marks omitted). 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.” Varig, 467 U.S. at 813. “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. United States, 516 F.3d
1125, 1129 (9th Cir. 2008) (internal quotation marks
omitted).
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 (internal quotation marks omitted). “The exception
protects only government actions and decisions based on
social, economic, and political policy.” Miller v. United
CHADD V. U.S. NAT’L PARKS SERVICE 9
States, 163 F.3d 591, 593 (9th Cir. 1998) (internal quotation
marks omitted). 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 325, 323.
It is also important to bear in mind that the decision
giving rise to tort liability “need not be actually grounded in
policy considerations, but must be, by its nature, susceptible
to a policy analysis.” Miller, 163 F.3d at 593. Thus, “if a
regulation allows the [governmental] employee discretion,”
there is “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.” Gaubert, 499 U.S. at 324. In such cases, the
plaintiff “must allege facts which would support a finding
that the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory
regime.” Id. at 324–25. In any event, “[t]he focus of the
inquiry is not on the agent’s subjective intent in exercising
the discretion conferred by statute or regulation, but on the
nature of the actions taken and on whether they are
susceptible to policy analysis.” Id. at 325.3
III
A
Chadd’s tort suit alleges that the Service should have
destroyed the goat before it killed Boardman, and that the
3
Thus, the dissent’s assertion that the discretionary function should be
limited to an analysis of whether the government agent intended,
subjectively, to exercise policy-based discretion, Dissent Slip Op. at 24,
is incorrect.
10 CHADD V. U.S. NAT’L PARKS SERVICE
Service’s failure to do so constituted negligence.4 The first
issue, then, is whether “a statute or policy directing
mandatory and specific action” required the Service to
destroy the goat before it attacked Boardman. Terbush,
516 F.3d at 1129. If none did, then the Service’s
management of the goat necessarily “involv[ed] an element
of judgment or choice,” and the first prong of the
discretionary function exception is satisfied. Gaubert,
499 U.S. at 322 (internal quotation marks omitted).
The Service’s Management Policies manual (the
“manual”) is “the basic Service-wide policy document of the
National Park Service” and is “mandatory unless specifically
waived or modified by the Secretary, the Assistant Secretary,
or the Director.” The government does not dispute that this
manual governed the Service’s actions in the lead-up to
Boardman’s death. Section 8.2.5.1 of the Management
Policies manual instructs, “The saving of human life will take
precedence over all other management actions. . . .”
However, the manual qualifies this obligation in the
4
At oral argument, counsel for Chadd argued that the Park Service’s
2009 decision to begin intensive hazing of the mountain goat constituted
a mandatory directive for purposes of the discretionary function exception
and that the Service failed to implement its hazing policy properly. This
argument was entirely new, never having been raised in the district court
or in Chadd’s opening brief. It is also a highly fact-dependent argument,
which makes it difficult to evaluate without the benefit of district court
findings and full briefing. We address “only issues which are argued
specifically and distinctly in a party’s opening brief.” Greenwood v. FAA,
28 F.3d 971, 977 (9th Cir. 1994). Moreover, “[i]t is well established that
an appellate court will not reverse a district court on the basis of a theory
that was not raised below.” Alaska Airlines, Inc. v. United Airlines, Inc.,
948 F.2d 536, 546 n.15 (9th Cir. 1991). We therefore decline to consider
Chadd’s argument relating to the Service’s implementation of its decision
to haze the goat.
CHADD V. U.S. NAT’L PARKS SERVICE 11
following manner: “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.” Moreover, the obligation to “reduce or remove
known hazards” is limited by what is “practicable and
consistent with congressionally designated purposes and
mandates.”
These statements indicate that there are many factors the
Service must consider while ensuring human safety in the
national parks, such as “park resources and values,” what is
“practicable,” and “congressionally designated purposes and
mandates.” Indeed, the manual explicitly provides, “[t]hese
management policies do not impose park-specific visitor
safety prescriptions. The means by which public safety
concerns are to be addressed is left to the discretion of
superintendents and other decision-makers at the park level
. . . .” Such discretion includes “whether to . . . eliminate
potentially dangerous animals.”
The manual also contains guidance specific to exotic (that
is, non-native) species, such as the mountain goats at
Olympic. It declares that such species “will be managed—up
to and including eradication—if (1) control is prudent and
feasible, and (2) the exotic species . . . creates a hazard to
public safety.” How exotic species are to be managed is not
specified. The manual, then, imposes no particular,
mandatory course of action for managing an exotic animal
that is threatening public safety.
Nor does Olympic’s park-specific Nuisance and
Hazardous Management Animal Plan. That document
12 CHADD V. U.S. NAT’L PARKS SERVICE
outlines various “management objectives” and “management
alternatives,” but nowhere does it require Park officials to use
a particular management technique when confronted with a
dangerous, exotic species. In fact, the plan indicates that
different species and contexts will require different
management options, as when it notes, “For some species,
such as black bears, a long history of management failures
and successes exists . . . . For other species, such as cougars,
few proven management techniques exist.” Chadd points to
Superintendent Gustin’s statement that the Service “move[s]
to the next level [of management techniques] or series of
levels” if “the problem isn’t going away or doesn’t seem to be
resolved,” but Gustin’s statement does not indicate that there
is a general policy or directive requiring such action or
prescribing the timing of it. As it is, nothing in the plan
mandates an escalation of management techniques.
Finally, Olympic’s Mountain Goat Action Plan lists three
forms of hazing as appropriate incident management
techniques, but it does not specify how or when they should
be deployed. The Mountain Goat Action Plan does not even
mention animal destruction, in contrast with the Cougar
Action Plan. There was, therefore, no extant statute,
regulation, or policy directive that required Park officials to
destroy the goat prior to Boardman’s death.
Indeed, Chadd acknowledges as much. In her reply brief,
Chadd states, “Contrary to the government’s principal
argument, Chadd does not argue that there is a mandatory
directive prescribing a specific course of conduct.” Instead,
“[r]easonable care, not a ‘mandatory directive,’ required
[Park officials] to shoot the goat.” But whether reasonable
care required such action goes to the merits of Chadd’s
negligence claim, not to the question of whether Park officials
CHADD V. U.S. NAT’L PARKS SERVICE 13
had discretion in deciding how to manage the problematic
goat. Chadd might very well be correct that Park officials
abused their discretion in a tortious manner, but, at step one
of the discretionary-function-exception analysis, all that
matters is that there was, in fact, discretion. See Gaubert,
499 U.S. at 322.
B
1
Chadd focuses her arguments almost exclusively on the
second step of the discretionary function analysis. She begins
by arguing that because the government is liable for a
“garden-variety tort, not a high-level policy decision,”
applying the discretionary tort exception would “contradict[]
the sovereign-immunity waiver at the heart of the FTCA.”
Gaubert, however, forecloses that argument. In Gaubert, the
Supreme Court made clear that the exception “is not confined
to the policy or planning level” and extends to “the actions of
Government agents.” 499 U.S. at 325, 323. It does not
matter, then, if the decision at issue was made by low-level
government officials, rather than by high-level policymakers.
“[I]t 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.” Varig, 467 U.S. at 813;
see also Whisnant v. United States, 400 F.3d 1177, 1181 (9th
Cir. 2005) (stating that “the applicability of the exception
does not depend on whether the relevant decision was made
by an individual at the ‘operational’ or ‘planning’ level”).
14 CHADD V. U.S. NAT’L PARKS SERVICE
2
Chadd also contends that Park officials “had only one
choice: comply with their own policies requiring them to
prioritize human life and kill the goat.” As discussed above,
Chadd’s reply brief disclaims the argument that “there is a
mandatory directive prescribing a specific course of conduct.”
Instead, her argument that Park officials had “only one
choice” seems to be an echo of her claim that “[r]easonable
care, not a ‘mandatory directive,’ required [Park officials] to
shoot the goat.” But whether there was only one reasonable
course of action is not the relevant question for determining
subject matter jurisdiction under § 2680(a). Rather, the
question is whether the course of action chosen was
“susceptible to a policy analysis,” Miller, 163 F.3d at 593
(emphasis added), even if the action constituted an abuse of
policy discretion, see Bailey, 623 F.3d at 861 (noting that “the
discretionary function exception provides immunity even to
abuses of discretion”). With regard to the discretionary
function exception, our analysis of subject matter jurisdiction
is distinct from our analysis of the merits. Chadd’s argument
conflates these separate inquiries and must be rejected.
3
Chadd’s principal argument relies on our decision in
Whisnant, where we construed past precedent as holding that
“the design of a course of governmental action is shielded by
the discretionary function exception, whereas the
implementation of that course of action is not.” 400 F.3d at
1181 (emphasis omitted). This distinction between policy
design and implementation is only relevant at the second step
of the discretionary function analysis.
CHADD V. U.S. NAT’L PARKS SERVICE 15
In Whisnant, the plaintiff delivered seafood products to a
military commissary, causing him to come into contact with
“toxic mold the government negligently allowed to colonize
the commissary’s meat department over a period of three
years.” Id. at 1179. This Court held that, although “[n]o
statute, policy, or regulation prescribed the specific manner
in which the commissary was to be inspected or a specific
course of conduct for addressing mold,” the decision to
remove the mold was not one protected by the discretionary
function exception. Id. at 1181, 1183. As Whisnant stated,
“Cleaning up mold involves professional and scientific
judgment, not decisions of social, economic, or political
policy.” Id. at 1183. “Because removing an obvious health
hazard is a matter of safety and not policy, the government’s
alleged failure to control the accumulation of toxic mold . . .
cannot be protected under the discretionary function
exception.” Id.
Chadd believes the same is true of her case. In her view,
Olympic’s “failure to escalate up the levels of [the Nuisance
and Hazardous Management Animal Plan]” was a failure to
implement a safety measure, just as the failure to remove
mold was in Whisnant. She points to the repeated
acknowledgments by Park officials that the goat was
dangerous and aggressive; the fact that the hazing techniques
used by officials were known to have only a “temporary”
effect; Gustin’s statement that the usual practice is to “ramp
up” management techniques when one is not working; and
the history of incidents surrounding mountain goats in
Olympic. Chadd believes the goat was an “obvious health
hazard” that was “a matter of safety and not policy.”
Whisnant, 400 F.3d at 1183.
16 CHADD V. U.S. NAT’L PARKS SERVICE
Although Whisnant drew the distinction between policy
design and implementation, it also made clear that the
“implementation of a government policy is shielded where
the implementation itself implicates policy concerns, such as
where government officials must consider competing
fire-fighter safety and public safety considerations in deciding
how to fight a forest fire.” Id. at 1182 n.3 (second emphasis
added). Thus, this Court has subsequently stated that “so
long as a decision involves even two competing [policy]
interests, it is ‘susceptible’ to policy analysis and is thus
protected by the discretionary function exception.” Bailey,
623 F.3d at 863 (emphasis added). What distinguished the
mold situation in Whisnant is that there was no legitimate
reason for the commissary not to eliminate the toxic mold.5
But, at step two of the discretionary-function-exception
analysis, where there is even one policy reason why officials
may decide not to take a particular course of action to address
a safety concern, the exception applies. Id.; see also Soldano
v. United States, 453 F.3d 1140, 1150 (9th Cir. 2006)
(holding that the discretionary function exception did not
apply because there was “no reason” justifying the
government’s failure to implement a safety measure); Alfrey
v. United States, 276 F.3d 557, 565 (9th Cir. 2002) (citing
only two competing policy considerations in holding that the
discretionary function exception applied); Miller, 163 F.3d at
595–96 (describing the competing policy considerations
involved in deciding how to address multiple forest fires).
5
The commissary cited budgetary concerns, but this Court has
repeatedly held that budgetary considerations, standing alone, cannot form
the basis for the application of the discretionary function exception.
Whisnant, 400 F.3d at 1183–84; ARA Leisure Servs. v. United States,
831 F.2d 193, 195–96 (9th Cir. 1987).
CHADD V. U.S. NAT’L PARKS SERVICE 17
As the district court noted, park officials evaluated
multiple policy considerations in deciding how to manage the
problematic goat. Although the goat, as an exotic species,
was not entitled to the same level of protection or
consideration as native species at Olympic, the public desired
to see the goats. Both Dr. Happe and Olympic Deputy
Superintendent Todd Suess submitted declarations stating,
“The mountain goat is an appealing, iconic animal within
Olympic . . . and is an attraction to park visitors. In the past,
the park has encountered significant opposition to possible
plans to remove some of the goats.” In light of the public’s
interest in preserving Olympic’s goats, Park officials
implemented several non-lethal management options, such as
hazing, and explored the possibility of relocating the goat.
Chadd counters that preservation of the goats is contrary
to their status as an exotic species and violates the Service’s
policy of prioritizing human safety over all other
considerations. But from the premise that the goats are not
entitled to special protection as a matter of policy, it does not
follow that Park officials ought to exterminate them. Native
species in the Park have a default level of protection that
mountain goats do not enjoy, but Chadd has pointed to
nothing that forbids Park officials from protecting the goats
to facilitate the public’s enjoyment of the species.6 There is
no contradiction between the goat’s status as an exotic
6
The officials’ interest in facilitating the public’s enjoyment of the
Park’s wildlife also distinguishes this case from the “routine tort case” the
dissent claims is analogous to this one—that of a homeowner and his
dangerous dog. Whereas the homeowner can claim no legitimate interest
in the public’s enjoyment of his dangerous pet, Park officials engaged in
wildlife management must consider the public’s interest in enjoying the
wildlife at the Park in its natural state.
18 CHADD V. U.S. NAT’L PARKS SERVICE
species and Olympic’s desire to implement safety measures
short of destruction.
As for the policy of prioritizing human safety, it is clear
that the means by which local officials ensure human safety
“is left to the discretion of superintendents and other
decision-makers at the park level.” See supra Part III.A.
Such discretion includes decisions about animal destruction.
Moreover, the Service’s policy manual lists several
competing objectives that Park officials had to consider in
assessing the goat situation, including “park resources and
values.”
Thus, in addition to the policy issues mentioned by Park
officials, the Service’s guidelines cite many competing
considerations that Olympic should have taken into account
when deciding how to deal with the problematic goat.
Whether Park officials actually took into consideration the
policy objectives listed in the Service’s guidelines is
irrelevant because the challenged decision “need not be
actually grounded in policy considerations, but must be, by
its nature, susceptible to a policy analysis.” Miller, 163 F.3d
at 593 (emphases added). Indeed, “if a regulation allows the
[governmental] employee discretion,” as it did here, there is
“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.” Gaubert,
499 U.S. at 324. Park officials need only point to “some
support in the record that the decisions taken [were]
‘susceptible’ to policy analysis for the discretionary function
exception to apply,” and that standard is more than met here.
Terbush, 516 F.3d at 1134. The holding of Whisnant is thus
inapplicable, as the implementation of the safety regulation
was itself subject to competing policy concerns. Bailey,
CHADD V. U.S. NAT’L PARKS SERVICE 19
623 F.3d at 863. Because the decision to use non-lethal
methods to manage the goat was susceptible to policy
analysis, the discretionary function exception applies.
IV
The district court’s order dismissing this case for lack of
subject matter jurisdiction is AFFIRMED.
BERZON, Circuit Judge, concurring:
I concur in Judge O’Scannlain’s opinion, which I believe
correctly applies our precedents regarding the discretionary
function exception to the troubling facts of this case. I agree
with Judge Kleinfeld, however, that our jurisprudence in this
area has gone off the rails. In particular, in my view, Miller
v. United States was wrong when it concluded that the
decision at issue “need not be actually grounded in policy
considerations” but need only be, “by its nature, susceptible
to a policy analysis.” 163 F.3d 591, 593 (9th Cir. 1998); see
also GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174,
1178 (9th Cir. 2002).
Miller purported to derive that rule from United States v.
Gaubert, 499 U.S. 315 (1991). But that is not what Gaubert
says—it says the opposite, that “the exception protects only
governmental actions and decisions based on considerations
of public policy.” Id. at 323 (emphasis added, internal
quotation marks omitted).
Gaubert then went on to indicate that susceptibility to a
policy analysis, which Miller elevated to the ultimate
20 CHADD V. U.S. NAT’L PARKS SERVICE
question, was relevant insofar as it established a strong
presumption “that the agent’s acts are [in fact] grounded in
policy.” Id. at 324. But nothing in Gaubert suggests that the
presumption is not rebuttable, or switches the foundational
question from whether the decision was “based on
considerations of public policy” to whether it hypothetically
could have been.
Were I considering the issue in the first instance, I would
hold that the Gaubert presumption can be rebutted with a
clear showing that a decision was not actually based on
policy considerations, even if the decision was susceptible to
a hypothetical policy analysis. In other words, in my view
the proper rule is this: In every case, the relevant decision
does need to be “actually grounded in policy considerations,”
but, as a practical and evidentiary matter, the fact that a
decision is “susceptible to a policy analysis” creates a strong
presumption that it was actually made for policy reasons,
rebuttable only by persuasive evidence to the contrary. See
Miller, 163 F.3d at 593.
Miller is the law of our circuit, however, and contrary to
Judge Kleinfeld’s wishful thinking, has not been limited or
undermined. See GATX/Airlog Co., 286 F.3d at 1174, 1178.
While I believe Miller should be reconsidered, we are bound
to apply it. See Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc). I therefore, with some reluctance,
concur.
KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent.
CHADD V. U.S. NAT’L PARKS SERVICE 21
A Supreme Court concurrence commented that the courts
have had “difficulty in applying” the rule for deciding which
government actions fall within the discretionary function
exception.1 Indeed. In this case, we have allowed the
discretionary function exception to swallow the statutory rule
that the federal government waives its sovereign immunity
for torts for which an ordinary person would be liable. Under
the Court’s opinions in United States v. Gaubert2 and
Berkovitz v. United States,3 the negligence in this case falls
outside the discretionary function exception. The majority
mistakenly expands the exception and contracts the rule, and
thereby creates tension with our recent decision in Young v.
United States4 as well as Whisnant v. United States5 and Bear
Medicine v. United States.6
The Federal Tort Claims Act says that the government
“shall be liable . . . [for torts] in the same manner and to the
same extent as a private individual under like
circumstances.”7 This broad waiver is subject to an exception
for claims “based upon the exercise or performance or the
1
United States v. Gaubert, 499 U.S. 315, 335 (1991) (Scalia, J.,
concurring in part and concurring in the judgment).
2
499 U.S. 315 (1991).
3
486 U.S. 531 (1988).
4
769 F.3d 1047 (9th Cir. 2014).
5
400 F.3d 1177 (9th Cir. 2005).
6
241 F.3d 1208 (9th Cir. 2001).
7
28 U.S.C. § 2674.
22 CHADD V. U.S. NAT’L PARKS SERVICE
failure to exercise or perform a discretionary function or duty
. . . whether or not the discretion involved be abused.”8 The
language appears clear, but the application is not.
The fundamental problem the courts have had applying
the exception is that all but strict liability torts involve the
exercise of discretion. How much slower than the speed limit
should I drive in rain and fog?9 Should I trim this tree
because a limb overhangs the sidewalk and could conceivably
fall on a pedestrian in a windstorm?10 Or shall I leave it alone
because of the aesthetic pleasure it gives to me and
passersby? Must I have my dog put down because it may bite
the child next door if he trespasses, or can I continue to enjoy
my dog?11 Shall I (a physician) get an expensive CT scan for
this patient to rule out a highly unlikely diagnosis?12 Shall we
quit manufacturing our cheap ladders and triple the price to
make ladders that do not collapse or tip even when people use
them improperly?13 Replace all the seats in our 747’s with
new, more fire-resistant seats? Shall we recall all our chain
saws, or all our cars, because of very slight risks?
8
Id. § 2680(a).
9
See Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 16 cmt. e (2010) [hereinafter Restatement (Third) of Torts].
10
See id. § 7 cmt. b, illus. 1.
11
See id. § 23 cmt. i; Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 51 cmt. l (2012).
12
See Restatement (Third) of Torts, supra note 9, § 26 cmt. n.
13
See Restatement (Third) of Torts: Products Liability § 2 cmt. d, cmt.
p, illus. 20 (1998).
CHADD V. U.S. NAT’L PARKS SERVICE 23
If those were the kinds of discretionary decisions the
statutory exception meant to cover, then the statutory “private
individual” rule would be nearly nullified, applying only to
negligence per se, where a statute or regulation left no
discretion in the matter. The Supreme Court has grappled
with this verbal difficulty and narrowed the discretionary
function exception to the kind of policy discretion that only
the government exercises. Even this limitation is hard to
apply, because the homeowner deciding whether to cut the
tree limbs herself balances the public interest in a pretty walk
down the street against the public interest in avoidance of the
risk from a falling branch. So policy choices, for the
exception to be cabined at all, have to be limited to peculiarly
governmental ones. This is difficult too, because the private
interests that private individuals have often coincide with
public interests, as in lower prices or greater aesthetic appeal,
and government undertakes many tasks generally or
previously performed privately.
The holding of the majority opinion appears to be that if
no law or regulation mandates or prohibits the government’s
action or inaction, and even one “policy” reason can be
adduced before or after to justify the government’s action or
inaction, then the exception applies. This limits the waiver of
sovereign immunity to negligence per se and conduct that in
no way can be rationalized after the fact. The majority fails
to draw the distinction that the Supreme Court has struggled
to formulate, between a “policy” reason and a mere after-the-
fact rationalization or personal preference of a government
employee or official.
There never was a park policy to leave dangerous animals
alone because “the public desired to see the goats,” the policy
reason upon which the majority relies. This was a park, not
24 CHADD V. U.S. NAT’L PARKS SERVICE
a zoo with caged animals, and the express formal park policy
was to protect the public from dangerous animals. Only after
the goat killed Mr. Boardman did the Park come up with the
rationalization for their inaction that “the public desired to see
the goats.” The park staffs shot and killed the goat
immediately after it killed Mr. Boardman. The discretionary
function exception should be construed as limited to decisions
where a government policy decision guided the exercise of
discretion, and not expanded to situations where it did not,
even when a policy judgment can subsequently be imagined
and articulated. We rejected such an after-the-fact
rationalization in Bear Medicine v. United States: “our
inquiry into the nature of a decision is not meant to open the
door to ex post rationalizations by the Government in an
attempt to invoke the discretionary function shield.”14
Letting an identified aggressive 370-pound goat threaten
park visitors and rangers for years until it killed one
amounted to a failure to implement the formally established
park policy for managing dangerous animals. Written park
policy provided a series of steps for dealing with animals
dangerous to park visitors, from frightening the animal away
to removing or killing it. The Park had used the earlier steps,
including repeatedly shooting the goat with nonlethal loads
such as beanbags, but they did not work. Yet the
superintendent left the animal free to terrorize tourists for
another summer season instead of following the next step of
the written policy, removing or killing it. This was “ordinary
garden-variety negligence,”15 like keeping a dog that has
14
241 F.3d 1208, 1216 (9th Cir. 2001).
15
ARA Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir. 1987)
(internal quotation marks omitted).
CHADD V. U.S. NAT’L PARKS SERVICE 25
already bitten a child, and subsequently bites another.
Official park policy for Olympic National Park put protection
of human life ahead of protection of animal life, and did not
protect nonindigenous animals such as this goat. Failure to
implement this policy was not another policy, just ordinary
negligence.
FACTS
Like a lot of national park visitors, the Boardmans and
their friend were aging tourists. Mr. Boardman, 63, was
killed by a horned animal bigger than an NFL lineman, that
had been the terror of the Park for four years. The 370-pound
goat spotted them as they enjoyed a picnic, and approached,
pawing the ground, and menacing them. It was too close to
throw rocks at it, so Mr. Boardman tried to hold it off with his
walking stick as they retreated. They walked away from it for
about a mile, with Mr. Boardman in the rear protecting the
ladies with his stick, but the goat would not go away. Then
the goat attacked Mr. Boardman, gored him, and stood over
him, keeping assistance away, as he bled to death. Too late
for Mr. Boardman, park rangers finally carried out park
policy for dangerous animals. A couple of hours after it had
killed Mr. Boardman, park rangers easily found the goat
about a half mile away, his horns stained with Mr.
Boardman’s blood, and shot it dead.
This was no random, unpredictable, animal attack. Park
personnel knew this particular goat and had been dealing with
its unusual, aggressive behavior toward them and toward park
visitors for four years. The park personnel had even named
it, “Klahhane Billy,” whom they well knew to be the terror of
the heavily used Switchback Trail on Klahhane Ridge. A
written report in 2006, four years before the goat killed Mr.
26 CHADD V. U.S. NAT’L PARKS SERVICE
Boardman, said that a goat aggressively followed hikers and
retreated only after being beaten with a walking stick. The
Park received four more reports of an aggressive goat the next
year, 2007. These were not just reports from visitors of
perhaps timorous temperaments. One was from a park
ranger, who said that the goat blocked the trail, chased her for
two miles, and tried to charge her.
Recognizing the danger, rangers began monitoring the
goats and placed warning signs at trail heads. Three years
before the goat killed Mr. Boardman, 2007, eleven goats were
captured and collared with GPS units. That is when
Klahhane Billy was identified as the “only . . . collared
animal in this area that was recorded to have aggressive
behavior.” Two years before it killed Mr. Boardman, in
2008, when the park officials knew which goat was the
problem, a hiker reported that the goat chased him at a
“jogging pace.” Since the park officials knew that Klahhane
Billy threatened people and did not fear them, park personnel
began using what they called “aversive conditioning
techniques.” That meant yelling and throwing rocks at
Klahhane Billy to teach it to fear and avoid people. The
“aversive conditioning” did not work. Hikers continued to
report aggressive goat incidents as the 2008 season drew to a
close.
By the next summer, 2009, park personnel knew that
Klahhane Billy was dangerous and that the “aversive
conditioning techniques” had failed. The Park
Superintendent, Karen Gustin, had been so advised. The
Park’s Wildlife Branch Chief and biologist, Dr. Patti Happe,
sent her an email in June of 2009, a year before it killed Mr.
Boardman, warning that Klahhane Billy was getting worse.
She was getting reports of risk of injury even from her
CHADD V. U.S. NAT’L PARKS SERVICE 27
predecessor, and “it may be only an [sic] matter of time until
someone is hurt”:
As you know, this goat has been a problem for
several years now . . . and is behaving in an
increasing[ly] aggressive manner. This year
I am getting reports of people feeling that
the[y] are at risk of injury (including my
predecessor in this job who has a lot of
experience working with goats).
He is definitely negatively impacting the Park
visitors ability to experience and enjoy the
area trails, and it may be only an [sic] matter
of time until someone is hurt. (Emphasis
added).
Two days after the email, Gustin directed more aversive
conditioning, and rangers began patrolling with paintball and
bean-bag guns to shoot the goat.
During the 2009 season, the escalated aversive
conditioning continued to fail. The next month, July 2009,
Billy charged a family twice. Fortunately, the father was able
to protect his wife and children by throwing rocks at it. Park
rangers then shot the goat with paintballs and bean bags, but
even having been shot with these weapons (which tourists
visiting national parks would not have), Billy returned to the
trail within fifteen minutes. Nor did the impacts from these
weapons persuade the goat to avoid people. In October 2009,
Billy chased another park visitor down the trail.
The next season, the summer of 2010, reports got worse.
Klahhane Billy butted a hiker with its head but fortunately did
28 CHADD V. U.S. NAT’L PARKS SERVICE
not gore him. On July 5, 2010, another park ranger, Sanny
Lustig, sent an email to park employees referencing multiple
aggressive attacks by this identified animal. She wrote “his
MO is to follow people to the trailhead, rear up and come in
close proximity brandishing his hooves, and the latest was an
actual report of a head butt. He’s big, he’s not wary, he
pesters, he looks mean and as if he’ll get aggressive.”
In response to this escalating aggression, Dr. Patti Happe,
the chief biologist, wrote “[i]f he has indeed made contact
with someone via head-butting, it may be time to talk about
taking the next step before someone gets hurt.” The next
steps under written policy, the Park’s Nuisance and
Hazardous Animal Management Plan, would have been
capture and release, capture and translocation, and destruction
of the animal. Two days later, another biologist reported that
the goat chased her. She said “I am skeptical that a bit of
adverse conditioning will do much for him. He sees hundreds
of harmless people every day. . . . I was shocked by how
determined he was. I caught him 4 times with rocks to no
effect. He could be really scary to many people.”
In late July 2010, two and a half months before the goat
killed Mr. Boardman, the Park, recognizing the failure of its
“aversive conditioning techniques,” finally decided to
consider other management options including relocating the
goat. Dr. Happe wrote an email to a biologist with
Washington Department of Fish and Wildlife on July 30,
2010:
As I mentioned on the phone, we have a
mature billy on the [sic] at the hurricane ridge
area of Olympic National Park that has
become very habituated and not responding to
CHADD V. U.S. NAT’L PARKS SERVICE 29
our efforts to have him keep at a greater
distance from people. Recently, he has been
becoming increasingly aggressive and park
management would like to explore other
management options for him, including
relocation from the area.
According to Dr. Happe’s subsequent email to Superintendent
Gustin and other park employees, the state’s biologist “was
very willing to help, is thinking about alternatives ranging
from relocation . . . or to captivity, and will help with the
capture.” Gustin replied, “[t]his sounds like good news.” But
despite having explored the relocation option successfully,
the Park Superintendent did not do it.
The record does not show that the Park did anything about
the goat at all in the next two and a half months. Nor does the
record show any decision or decision-making process by the
Park Superintendent, Karen Gustin, about whether to accept
the state’s offer to have the goat relocated to state land or
have the goat killed. In October, at the end of the summer
season, nothing having been done to protect park visitors,
Klahhane Billy killed Mr. Boardman.
ANALYSIS
The Federal Tort Claims Act makes the United States
liable for tort claims to the same extent “as a private
individual under like circumstances.”16 The Act intended to
compensate those harmed by government negligence. We
have held that “it should be construed liberally, and its
16
28 U.S.C. § 2674.
30 CHADD V. U.S. NAT’L PARKS SERVICE
exceptions should be read narrowly.”17 The exceptions are
voluminous, for intentional torts such as assault, battery,
malicious prosecution, libel, slander, deceit, and the like, as
well as for various government functions such as tax
collection and delivery of the mail,18 and damages are limited
to compensatory damages without interest.19 The torts for
which sovereign immunity is waived are mainly traditional
common-law negligence.
The exception at issue in this case, the “discretionary
function” exception, excludes from this broad 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.”20 This limited exception
protects only “political, social, and economic judgments that
are the unique province of the Government.”21 It therefore
does not shield government negligence from liability merely
on the grounds that the action or inaction involved, as almost
all negligence does, some element of discretion.
17
Terbush v. United States, 516 F.3d 1125, 1135 (9th Cir. 2008)
(internal quotation marks omitted).
18
28 U.S.C. § 2680.
19
Id. § 2674.
20
Id. § 2680(a).
21
Bear Medicine v. United States, 241 F.3d 1208, 1214 (9th Cir. 2001)
(internal quotation marks omitted).
CHADD V. U.S. NAT’L PARKS SERVICE 31
In determining whether this exception applies, “the
question of whether the government was negligent is
irrelevant.”22 The question of how the government was
negligent remains “critical.”23 “[D]etermining 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 the applicability of the discretionary function
exception.24 The majority mistakenly characterizes Chadd’s
allegation of wrongdoing as challenging only the Park’s
failure to kill the goat, omitting the available removal option.
Chadd challenges “[f]ailing to remove or destroy” the goat,
analogizing Superintendent Gustin’s non-decision and
inaction to that of a landowner who knows of and fails to
exercise reasonable care to protect invitees from an
unreasonable risk of harm that the landowner cannot
reasonably expect them to discover and protect themselves
against. The argument is that she knew aversive conditioning
(yelling and throwing rocks at the goat and even shooting it
with nonlethal weapons) had failed and the goat was getting
more aggressive, yet did nothing more to protect park visitors
from it.
Chadd concedes that there was no mandatory directive
prescribing a specific course of conduct at a certain time.
This is not a negligence-per-se case. In negligence per se,
“[a]n actor is negligent if, without excuse, the actor violates
a statute that is designed to protect against the type of
accident the actor’s conduct causes, and if the accident victim
22
Whisnant v. United States, 400 F.3d 1177, 1185 (9th Cir. 2005).
23
Young v. United States, 769 F.3d 1047, 1054 (9th Cir. 2014).
24
Id.
32 CHADD V. U.S. NAT’L PARKS SERVICE
is within the class of persons the statute is designed to
protect.”25 The kind of negligence alleged in Berkovitz v.
United States, where a federal agency issued a license to a
polio vaccines manufacturer without first receiving the
product safety information required by the regulation, was of
that sort; the violation of law amounted to negligence.26
Compliance with statutes and rules, though, does not preclude
a finding that the actor is negligent. “An actor’s compliance
with a pertinent statute, while evidence of nonnegligence,
does not preclude a finding that the actor is negligent . . . for
failing to adopt precautions in addition to those mandated by
the statute.”27 If the speed limit is 55, but in the darkness, ice
and snow prevailing at the time, a reasonable and prudent
driver would go no faster than 35 or 40, then a speed of 50,
though well within the speed limit, may be negligent.
Likewise, the federal government is not shielded from
liability because Superintendent Gustin did not violate a
specific statutory or regulatory command. Plaintiff’s case is
indeed, as appellants argue, a garden-variety negligence of a
land possessor case, controlled by the tort law of
Washington.28 The exceptions to the Federal Tort Claims Act
do not purport to limit the government waiver of sovereign
immunity to negligence-per-se cases.
The simplistic view that if no regulation prohibited or
required different conduct, then the government actor had
25
Restatement (Third) of Torts, supra note 9, § 14.
26
486 U.S. 531, 542–43 (1988).
27
Restatement (Third) of Torts, supra note 9, § 16(a).
28
See Iwai v. State, 915 P.2d 1089, 1093 (Wash. 1996).
CHADD V. U.S. NAT’L PARKS SERVICE 33
discretion, and if the government actor had discretion, then
the discretionary function exception shields the government,
is bad law, rejected by the Supreme Court. The Park’s
management of the goat “involve[d] an element of judgement
or choice.”29 That is indeed the first step of analysis for the
discretionary function exception under Berkovitz v. United
States. But just as the 55 speed limit does not immunize
someone driving at 50 on ice, an element of discretion
allowed to the government actor is only necessary and not
sufficient to invoke the discretionary function exception.
The controlling question is whether the particular exercise
of discretion was “of the kind that the discretionary function
exception was designed to shield.”30 Many attempts, none
entirely successful, have been made to provide a general
statement of what sorts of exercises of discretion are of this
kind. They are best sorted out and applied in light of the
purposes of the waiver of sovereign immunity and the
exception. The waiver is intended to make the government
responsible for garden-variety torts such as mail truck
collisions occasioned by their drivers’ negligence. As the
Supreme Court held in Indian Towing Co. v. United States,
“[t]he broad and just purpose which the statute was designed
to effect was to compensate the victims of negligence in the
conduct of governmental activities in circumstances like unto
those in which a private person would be liable and not to
leave just treatment to the caprice and legislative burden of
individual private laws.”31 The exception is intended to
29
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
30
Id.
31
350 U.S. 61, 68–69 (1955).
34 CHADD V. U.S. NAT’L PARKS SERVICE
enable government to make and act upon policy
determinations without court interference with the social
judgments made by the political branches. As the Court held
in United States v. Varig Airlines, “Congress wished 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.”32
To understand what constitutes the exercises of discretion
“of the kind that the discretionary function exception was
designed to shield,”33 it is necessary to look at the cases that
the exception applied.34 The Supreme Court in Dalehite v.
United States held that the discretionary function exception
applied to the government’s operation of a program for
supplying fertilizer to countries at risk of famine after World
War II, when the fertilizer exploded, killed many people, and
leveled a town.35 The Dalehite rule is that the discretionary
function exception applies to “more than the initiation of
programs and activities. It also includes determinations made
by executives or administrators in establishing plans,
specifications or schedules of operations.”36 Superintendent
Gustin’s failure to do anything about the goat when nonlethal
aversive conditioning had failed falls into none of these
immunized categories.
32
467 U.S. 797, 814 (1984).
33
Berkovitz, 486 U.S. at 536.
34
See Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co. of Cal.,
153 F.3d 938, 946 (9th Cir. 1998).
35
346 U.S. 15, 42 (1953).
36
Id. at 35–36.
 CHADD V. U.S. NAT’L PARKS SERVICE 35
The Court in Indian Towing Co. v. United States limited
Dalehite. A tugboat had run aground because the Coast
Guard failed for three weeks (not years, as in our case) to
discover and repair a bad connection for the light in a
lighthouse.37 The Court held that despite operation of the
lighthouse being uniquely governmental, once the
government made a policy decision to operate a light at the
location, it “was obligated to use due care” in operating and
maintaining it.38 Likewise, the government did not have to
establish Olympic National Park, but once it made the policy
decision to do so, it was obligated to exercise due care for the
safety of the tourists it invited in.
The Supreme Court decisions applying the exception
since Indian Towing have all involved high policy and
complex regulatory regimes, not garden-variety torts
committed in the course of day-to-day operations. All
involved supervision by government of the conduct of private
individuals, which this case does not. The park regulation
prohibiting visitors from carrying guns to protect themselves
from dangerous animals is a policy decision regulating the
conduct of private individuals,39 but this case did not involve
park policy regulating visitors such as Mr. Boardman, just
park execution of its own programs. United States v. Varig
Airlines shielded Federal Aviation Administration’s “type
certification” allowing Boeing to use its proposed design for
37
Indian Towing Co. v. United States, 350 U.S. 61, 62 (1955).
38
Id. at 69.
39
Cf. 36 C.F.R. § 2.4.
36 CHADD V. U.S. NAT’L PARKS SERVICE
its 707 passenger jet,40 which we relied on in GATX/Airlog
Co. v. United States, another type certification case.41 The
Court held that the discretionary function exception shields
discretionary acts “of the Government acting in its role as a
regulator of the conduct of private individuals.”42
Superintendent Gustin failing to deal with the Klahhane
Billy’s aggressiveness might be characterized as a regulator
of a goat, but not as “a regulator of the conduct of private
individuals.” The reason for the “regulator” rule is that
Congress, by means of the discretionary function exception,
“wished 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.”43
Likewise in Berkovitz v. United States, the government
conduct involved was regulatory, licensing of polio vaccine.44
The Court held that the exception shielded formulation of
policy as to how to regulate release of vaccine, and policy
judgments of officials exercising discretion in the application
of these policies, but not negligent acts of officials carrying
out those policy judgments rather than making them.45 The
Court’s most recent explanation of the discretionary function
40
467 U.S. 797, 815–16 (1984).
41
286 F.3d 1168, 1175, 1178 (9th Cir. 2002).
42
Varig Airlines, 467 U.S. at 813–14.
43
Id. at 814.
44
486 U.S. 531, 533 (1988).
45
Id. at 546–48.
 CHADD V. U.S. NAT’L PARKS SERVICE 37
exception, in United States v. Gaubert, like Varig Airlines,
shields government discretion in how it regulates private
firms and individuals.46 The challenge was to how the
Federal Home Loan Bank Board exercised its discretion in
regulating the reorganization of a failed savings bank. The
Court rejected the view that the government’s liability turns
on whether the individual making the decision was of a high
enough status so that her official responsibilities included an
assessment of social, economic, or political policy. “[I]t is
the nature of the conduct, rather than the status of the actor
that governs whether the exception applies.”47 And Gaubert
rejected, as Berkovitz had, the proposition that if the action
involved an element of judgment or discretion, it was
shielded. For the exception to apply, the particular exercise
of discretion must be “of the kind that the discretionary
function exception was designed to shield. . . . [W]hen
properly construed, the exception protects only governmental
actions and decisions based on considerations of public
policy.”48 Though “[w]hen established governmental policy
. . . allows a Government agent to exercise discretion, it must
be presumed that the agent’s acts are grounded in policy
when exercising that discretion,” the exception does not apply
where “the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory
regime.”49 No regulatory regime was involved in our case,
just the day-to-day business of protecting park visitors from
46
United States v. Gaubert, 499 U.S. 315 (1991).
47
Id. at 322 (internal quotation marks omitted).
48
Id. at 322–23 (internal quotation marks omitted).
49
Id. at 324–25.
38 CHADD V. U.S. NAT’L PARKS SERVICE
unsafe conditions, like the land condition we deemed not to
be immunized in Young v. United States.50
The majority holds that if no statute or regulation
mandates a different conduct, the exception applies as long as
one “policy” reason can be articulated to justify the
government’s acts. Relying on a statement in Miller v.
United States that “[t]he decision need not be actually
grounded in policy considerations, but must be, by its nature,
susceptible to a policy analysis,”51 the majority concludes that
“[w]hether Park officials actually took into consideration the
policy objectives listed in the Service’s guidelines is
irrelevant.” That is, the majority deems it “irrelevant” that
Superintendent Gustin did not in fact decide against
relocating or shooting the goat because park visitors liked to
see the goats, or decide on a park policy to preserve all goats
for this reason. The majority “misconstrues Miller in . . .
fundamental ways.”52
We clarified in Bear Medicine v. United States that the
quoted language in Miller “was used illustratively to draw a
distinction between protected discretionary activities (e.g.,
selecting the method of supervising savings and loan
associations) and unprotected discretionary activities (e.g.,
driving a car), not to widen the scope of the discretionary
rule.”53 The language was merely “a paraphrase of a section
50
See 769 F.3d 1047, 1059 (9th Cir. 2014).
51
163 F.3d 591, 593 (9th Cir. 1998).
52
Bear Medicine v. United States, 241 F.3d 1208, 1216 (9th Cir. 2001).
53
Id. (emphasis added).
 CHADD V. U.S. NAT’L PARKS SERVICE 39
of the Supreme Court’s opinion in United States v.
Gaubert.”54 Gaubert did not hold that any decision, so long
as it is made by a high-ranking official with policymaking
responsibilities, is protected if a single “policy” reason can be
adduced before or after to justify the decision. Quite the
opposite. It held that “it is the nature of the conduct, rather
than the status of the actor that governs whether the exception
applies.”55 The majority’s approach amounts to adopting the
rule that Justice Scalia suggested in his concurring opinion of
Gaubert, that the exception shields any choice “that ought to
be informed by considerations of social, economic, or
political policy and is made by an officer whose official
responsibilities include assessment of those considerations.”56
That is not the law articulated by the majority in Gaubert, nor
was dealing with this goat exercise of regulatory authority, as
Gaubert was.
To the extent we narrow the waiver of sovereign
immunity, as we do in this case, we undermine the
congressional decision that “[t]he United States shall be liable
. . . [for torts] in the same manner and to the same extent as a
private individual under like circumstances.”57 The existence
of discretion is of little value for distinguishing private
individuals’ negligence liability from governmental liability.
The basic principle of negligence is that one “acts negligently
if the person does not exercise reasonable care under all the
54
Id.
55
Gaubert, 499 U.S. at 322 (internal quotation marks omitted).
56
Id. at 335 (Scalia, J., concurring in part and concurring in the
judgment).
57
28 U.S.C. § 2674.
40 CHADD V. U.S. NAT’L PARKS SERVICE
circumstances,” considering such factors as the foreseeable
likelihood of harm, the foreseeable severity of harm that may
ensue, and the burden of precautions to eliminate or reduce
the risk.58 The exercise of discretion is the essence of most
negligence. The Federal Tort Claims Act extends to the
government liability for negligent exercise of discretion,
except for the “political, social, and economic judgments that
are the unique province of the Government,”59 generally
involving government regulation of private conduct.
Congress chose to abolish the federal government’s sovereign
immunity for garden-variety negligence, which necessarily
includes such conduct involving the exercise of discretion.
We have developed two principles relevant to the
determination whether a challenged government decision was
policy-based or susceptible to policy analysis. First, “we
have generally held that the design of a course of
governmental action is shielded by the discretionary function
exception, whereas the implementation of that course of
action is not.”60 The exception does not shield a failure to
implement a safety policy even when the policy does not
mandate a specific action at a certain time.61 This follows
Indian Towing Co. v. United States, where once the Coast
Guard decided to establish a lighthouse, failing to keep it in
58
Restatement (Third) of Torts, supra note 9, § 3.
59
Bear Medicine, 241 F.3d at 1214 (internal quotation marks omitted).
60
Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005).
61
ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir.
1987).
CHADD V. U.S. NAT’L PARKS SERVICE 41
good working order is not immunized.62 Second, we may
protect a failure to implement a policy if the implementation
“itself implicates policy concerns.”63 To apply this complex
test, we ask whether the implementation of an established
policy requires objective determinations based on
professional and scientific judgment or a weighing of
competing public policy considerations.64
In this case, no decision was made based on competing
public policy considerations to let the goat continue
terrorizing the tourists. After the goat killed Mr. Boardman,
Dr. Happe, the Park’s chief biologist, wrote a declaration for
this lawsuit saying that the goats in the Park were “iconic”
and that visitors liked seeing them. But neither she nor any
other park personnel submitted any evidence that they had
decided, before the goat killed Mr. Boardman, to let the goat
stay in the Park for this or any other reason.
We held that the implementation of safety measures itself
implicated public policy concerns where the Forest Service in
Miller v. United States balanced competing firefighter safety
and public safety interests in deciding how to fight multiple
forest fires,65 and where the Army Corp of Engineers in
Bailey v. United States balanced its workers’ safety and the
public safety interests in deciding when to replace the
62
350 U.S. 61, 69 (1955).
63
Terbush v. United States, 516 F.3d 1125, 1133 (9th Cir. 2008)
(quoting Whisnant, 400 F.3d at 1182 n.3).
64
Soldano v. United States, 453 F.3d 1140, 1148 (9th Cir. 2006);
Whisnant, 400 F.3d at 1181.
65
163 F.3d 591, 595–96 (9th Cir. 1998).
42 CHADD V. U.S. NAT’L PARKS SERVICE
warning signs in a flooded river.66 In these cases, protecting
the general public would have entailed considerable risk to
the lives of the federal workers. And in both, a decision was
made based upon deliberation about these considerations.
They were not after-the-fact justifications for litigation
purposes, like the “policy” claim made in this case.
In Whisnant v. United States, we held that the
government’s failure to inspect a grocery store on a naval
base periodically and clean up mold was not protected.67
Whisnant, an employee of government contractor, claimed
that he became ill as a result of regular exposure to the toxic
mold in the store’s meat department.68 We held that “the
government’s duty to maintain its grocery store as a safe and
healthy environment for employees and customers is not a
policy choice of the type the discretionary function exception
shields. Cleaning up mold involves professional and
scientific judgment, not decisions of social, economic, or
political policy.”69
In ARA Leisure Services v. Unites States, while the Park
Service’s decision to design the Denali Park Road without
guardrails was protected because the Park had a policy that
roads should “lie lightly upon the land,” the Park’s failure to
maintain the road in a safe condition was not protected.70 The
66
623 F.3d 855, 861–62 (9th Cir. 2010).
67
400 F.3d 1177, 1183 (9th Cir. 2005).
68
Id. at 1179.
69
Id. at 1183.
70
831 F.2d 193, 195 (9th Cir. 1987).
CHADD V. U.S. NAT’L PARKS SERVICE 43
road at Thoroughfare Pass in Denali National Park had
eroded from an original width of twenty-eight feet to a width
of 14.6 feet and had edges so soft to cause a tour bus to go off
road and kill passengers.71 In Bear Medicine v. United States,
a member of a tribe was fatally injured when a tree cut by an
employee fell and struck him during a private logging
operation that the Bureau of Indian Affairs authorized.72 The
BIA was required to ensure that the logging operation
complied with the safety regulations, but few employees were
formally trained in basic safety procedures and none had been
trained in first aid.73 The government argued that it had a
policy of promoting independence in the operation of the
Indian Tribes and that its actions were taken due to limited
resources. We held that even if the BIA had discretion in its
monitoring of the logging operation, its actions in carrying
out its responsibilities (i.e., failure to require safety measures
or training) were not protected policy judgments.74 “[S]afety
measures, once undertaken, cannot be shortchanged in the
name of policy. Indeed, the crux of our holdings on this issue
is that a failure to adhere to accepted professional standards
is not susceptible to a policy analysis.”75 Likewise here,
failure to implement established park policy was not itself an
immunized policy judgment.
71
Id.
72
241 F.3d 1208, 1215 (9th Cir. 2001).
73
Id. at 1212.
74
Id. at 1215.
75
Id. at 1216–17 (internal quotation marks omitted).
44 CHADD V. U.S. NAT’L PARKS SERVICE
Other cases have ruled similarly. In Oberson v. United
States Department of Agriculture, the discretionary function
exception did not protect the Forest Service’s failure to post
a warning or remedy a hazard on a snowmobile trail, because
it did not involve considerations of public policy.76 In
Soldano v. United States, the exception barred a claim that the
Park Service negligently designed a road without warning
signs, but it did not immunize the Park’s negligence in setting
a speed limit for the road, because the speed limit decision
involved “objective safety criteria” in a park road plan.77 In
Summers v. United States, the exception did not protect the
Park Service’s failure to warn visitors of hot coals on a beach
where fires were permitted, because (as in the case before us)
it “resemble[d] more a departure from the safety
considerations established in Service policies” than a public
policy-based decision.78 In Bolt v. United States, the Army’s
failure to remove snow and ice from parking lot was not
protected.79 All these involved the exercise of discretion, as
almost all negligence does. But as in this case, the particular
exercise of discretion at issue did not require a weighing of
public policy considerations.
The policies actually enacted for Olympic National Park,
before the goat killed Mr. Boardman, prioritized protecting
visitors’ lives over protecting killer goats, “iconic” or not,
aesthetically pleasing to visitors or not. Under the National
76
514 F.3d 989, 998 (9th Cir. 2008).
77
453 F.3d 1140, 1147 (9th Cir. 2006).
78
905 F.2d 1212, 1216 (9th Cir. 1990).
79
509 F.3d 1028, 1034 (9th Cir. 2007).
CHADD V. U.S. NAT’L PARKS SERVICE 45
Park Service Management Policies, “[t]he 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.”80 This policy could have been
otherwise, as in ARA Leisure Services v. Unites States, a
policy to let the road “lie lightly upon the land,” effectively
prioritizing aesthetics over human safety.81 This written,
established National Park Service policy prioritizing “human
life” and “injury-free visits” “over all other management
actions,” applicable to this case, is the sort that has been
immunized as “the kind that the discretionary function
exception was designed to shield.”82 It cannot be reconciled
with Superintendent Gustin’s prioritizing of an identified
single goat, “iconic” or not, over human safety. The National
Park Service policy provides that “[t]he means by which
public safety concerns are to be addressed is left to the
discretion of superintendents and other decision-makers at the
park level,” but not whether to address them.83
In order to address this policy mandate “to protect human
life and provide for injury-free visits,” Olympic National Park
adopted a “Nuisance and Hazardous Animal Management
Plan.” Superintendent Gustin described this plan as a
“guiding document that directs [employees’] activities.” The
“Mountain Goat Action Plan” was included in the Animal
Management Plan. The goat plan does not say one way or the
80
Nat’l Park Serv., Management Policies 2006, § 8.2.5.1.
81
See 831 F.2d 193, 195 (9th Cir. 1987).
82
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
83
Nat’l Park Serv., Management Policies 2006, § 8.2.5.1.
46 CHADD V. U.S. NAT’L PARKS SERVICE
other whether to kill aggressive and dangerous goats that do
not respond to“aggressive hazing.” Since the park staffs
killed the goat within a couple of hours of when the goat had
killed Mr. Boardman, they obviously did not think the
Mountain Goat Action Plan prohibited killing dangerous
goats, though it did not say one way or the other.
Superintendent Gustin admitted that Klahhane Billy had been
managed, and was eventually killed, pursuant to the Nuisance
and Hazardous Animal Management Plan.
The Nuisance and Hazardous Animal Management Plan
states that individual animals may be controlled or removed
only for specific reasons, one of which is to protect human
health and safety. It sets forth “a sequence of escalating
management intervention and actions” for responding to
dangerous animals: (1) public education and training of
employees; (2) warnings and advisories; (3) monitoring and
observation; (4) exclusion; (5) seasonal, non-emergency
closures; (6) emergency closures; (7) aversion training;
(8) capture and release; (9) capture and translocation; and
(10) animal destruction.
The Park implemented some of the Plan but not all of it.
Under step two, rangers verbally warned hikers and placed
signs at trail heads. They also monitored the goats under step
three. Next, they implemented aversive conditioning
techniques under step seven, such as yelling and throwing
rocks. They also used paintball and bean-bag guns for
aversion training. Nothing worked. All of these techniques
failed. The goat just got more aggressive. Yet the Park did
not move on to the next steps, relocating or shooting the goat.
Superintendent Gustin testified that “[i]f the problem isn’t
going away or doesn’t seem to be resolved, then we move to
CHADD V. U.S. NAT’L PARKS SERVICE 47
the next level or series of levels.” Deputy Superintendent
Todd Suess testified that when aversive conditioning is not
working, park employees are supposed to “ramp it up and go
on to the next viable action that can be taken.” Dr. Patti
Happe said that if aversion training is unsuccessful, her
professional opinion is that the animal should be shot or
removed. Finally, Richard Olson, a retired park ranger who
drafted the Nuisance and Hazardous Animal Management
Plan, stated that once aversive conditioning failed, the only
logical next step was to shoot or relocate the problem animal.
But what everyone agreed should have happened did not
happen.
After two years and most of a third tourist season of
unsuccessful aversive conditioning, there was nothing left to
do, according to park policy, other than shoot or relocate the
goat. Indeed, at the beginning of the fatal season after
Klahhane Billy butted (but fortunately did not gore) a hiker,
Dr. Patti Happe, the Park’s chief biologist, emailed park
employees that “it may be time to talk about taking the next
step before someone gets hurt.” She emailed the state’s
biologist that the goat “has become very habituated and not
responding to our efforts to have him keep at a greater
distance from people. Recently, he has been becoming
increasingly aggressive and park management would like to
explore other management options for him, including
relocation from the area.” Dr. Happe emailed Superintendent
Gustin that the state’s biologist “was very willing to help, is
thinking about alternatives ranging from relocation . . . or to
captivity, and will help with the capture.” Gustin replied,
“[t]his sounds like good news.” There was no policy to the
contrary, and no policy decision not to kill or relocate the
goat. Nothing was done, despite the expert advice by
Superintendent Gustin’s chief biologist that something
48 CHADD V. U.S. NAT’L PARKS SERVICE
needed to be done and the state’s offer to help, for the rest of
the season, until the goat killed Mr. Boardman.
The majority notes the broad purpose of the Organic Act
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.”84
We held in Young v. United States that this broad purpose
does not eliminate the need for the Park Service under the
more specific policy to give precedence to “saving of human
life” and provide for “injury-free visits.”85 Following
Terbush v. United States,86 we held in Young that “it 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.”87 Though we noted that some failures to post
warning signs at possible hazards were immunized policy
decisions, we held in Young that the discretionary decision
not to post a warning of a dangerous condition known to park
officials but not to tourists who might encounter it was not
immunized by the discretionary function exception.88 Our
case is not a failure-to-warn case, and warning tourists
without weapons of the aggressive 370-pound goat would not
have done them any good anyway, unless they decided to
abandon their visit to the Park. What matters is that the
84
16 U.S.C. § 1.
85
769 F.3d 1047, 1056, 1057 (9th Cir. 2014).
86
516 F.3d 1125, 1130 (9th Cir. 2008).
87
769 F.3d at 1057 (internal quotation marks omitted).
88
Id. at 1057, 1058.
CHADD V. U.S. NAT’L PARKS SERVICE 49
Organic Act states a broad purpose not inconsistent with the
more specific park policy of prioritizing the safety of human
life.
As for goats such as Klahhane Billy, the Park Service had
already decided that the Organic Act’s goal of “preserving”
had no application. The reason was that these goats were not
indigenous to the Park. Mountain goats at Olympic National
Park were classified as “exotic” species not entitled to
protection. Under the National Park Service Management
Policies, “[a]ll exotic plant and animal species that are not
maintained to meet an identified park purpose will be
managed —up to and including eradication—if (1) control is
prudent and feasible, and (2) the exotic species . . . creates a
hazard to public safety.”89 This policy, and not the broad
purpose of conservation, spoke directly to the hazard posed
by Klahhane Billy, yet this goat was not “managed up to and
including eradication.”
Applicability of the removal or eradication policy was not
in doubt. Dr. Happe, the Park’s chief biologist, testified that
the Park has “taken a position that [goats] are exotic and they
don’t belong here.” In the 1980s, the Park used helicopters
to capture and remove over 400 goats, to protect native
vegetation and degraded soils. Superintendent Gustin
testified that the Park’s goal would have been to eradicate all
of the goats, but the capture program was terminated because
of a change in the Park’s rules for using helicopters. The
government’s catch-all argument about its discretion to
conserve government resources, by which it evidently means
money and personnel time, is a bit silly, since the failed
aversive conditioning took a lot more time and money than
89
Nat’l Park Serv., Management Policies 2006, § 4.4.4.2.
50 CHADD V. U.S. NAT’L PARKS SERVICE
the couple of hours and cost of a bullet that the government
expended to kill the goat after the goat killed Mr. Boardman.
It verges on dark humor to suggest that protecting soil and
vegetation from goats was worth using a fleet of helicopters,
but protecting humans from one particular identified goat
would have degraded the Park and cost too much money.
Though the government now argues, in litigation, that the
Park weighed the public’s desire to see goats against the
safety risk from Klahhane Billy, that has no support in the
record. The record is filled with reports from concerned
visitors who had life-threatening encounters with the goat.
They certainly did not want to see it again. In June of 2009,
a year before the goat killed Mr. Boardman, Dr. Happe
emailed Superintendent Gustin that the goat “is definitely
negatively impacting the Park visitors ability to experience
and enjoy the area trails.” Another park biologist wrote that
the goat “could be really scary to many people.”
CONCLUSION
There never was a discretionary decision, so far as the
record shows, to delay or decline to relocate or remove the
goat. All we have is a few after-the-fact declarations
submitted in litigation attempting to show why such a
decision, had it been made, would have been justified by
policy. The express, promulgated, applicable policies
directed removal or destruction of the goat. Glorifying this
run-of-the-mill negligence as a government policy decision
eviscerates the waiver of sovereign immunity that is the core
of the Federal Tort Claims Act. This was not a policy
decision like managing a failed bank, preparing fertilizer for
shipment to countries ravaged by war, or approving an
aircraft design. This was like not getting around to repairing
CHADD V. U.S. NAT’L PARKS SERVICE 51
the light in the lighthouse in Indian Towing Co. v. United
States.90 This case is analogous to the routine tort case, where
a homeowner has a fierce dog that has attacked people and
bitten one, but does not get rid of the dog until after it has
torn some child’s face off.91 This was “ordinary garden-
variety negligence” that the government must compensate,92
not “decisions of social, economic, or political policy” for
which the statute preserves its immunity.93
We should reverse.
90
See 350 U.S. 61, 69 (1955).
91
See, e.g., King v. Breen, 560 So. 2d 186 (Ala. 1990).
92
See ARA Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir.
1987) (internal quotation marks omitted).
93
See Whisnant v. United States, 400 F.3d 1177, 1183 (9th Cir. 2005).