Soldano v. United States , 453 F.3d 1140 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN A. SOLDANO, an individual; 
DENISE SOLDANO, an individual,
Plaintiffs-Appellants,
v. No. 03-17391
UNITED STATES OF AMERICA; UNITED  D.C. No.
CV-01-05462-LJO
STATES DEPARTMENT OF THE
INTERIOR; NATIONAL PARK SERVICE; OPINION
SUPERINTENDANT YOSEMITE
NATIONAL PARK,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Magistrate Judge, Presiding
Argued and Submitted
April 4, 2006—San Francisco, California
Filed July 12, 2006
Before: Alfred T. Goodwin, Betty Binns Fletcher and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
7601
SOLDANO v. UNITED STATES 7605
COUNSEL
Raymond E. Brown, Law Offices of Federico C. Sayre, Santa
Ana, California, for the plaintiffs-appellants.
Kristi C. Kepetan, Assistant United States Attorney, Fresno,
California, for the defendants-appellees.
OPINION
FISHER, Circuit Judge:
John Soldano and his wife, Denise, sued the United States
under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)
(“FTCA”), for damages arising out of a serious motorcycle
accident that occurred on a major road in Yosemite National
Park. The district court granted summary judgment against
the Soldanos, finding that their claims of governmental negli-
gence failed for lack of evidence or were barred by the discre-
tionary function exception to the FTCA, 28 U.S.C. § 2680(a).
We affirm in part, but reverse the district court’s application
of the discretionary function exception to the Soldanos’ claim
that the government failed to set a safe speed limit at the acci-
dent site.
FACTS1
A. The Accident
On June 23, 1998, John Soldano was driving his new
1
The facts are undisputed.
7606 SOLDANO v. UNITED STATES
Harley-Davidson motorcycle west on the two-lane Big Oak
Flat Road in Yosemite National Park, a road familiar to Sol-
dano, who had driven it many times. Sitting behind him as his
passenger was his wife, Denise. They were cruising between
30 and 35 m.p.h., consistent with the road’s 35 m.p.h. speed
limit.
As the Soldanos came around a bend in the road approach-
ing the Cascade Creek Bridge, they were startled to find a van
stopped in their lane. The van was waiting to turn left across
the road’s double, solid yellow lines to enter the Cascade
Creek Bridge vista point adjacent to the road. John Soldano
claims he attempted to brake, but had to veer into the east-
bound lane and oncoming traffic when he realized he had
insufficient room to stop before colliding with the van. As a
result, the Soldanos crashed head-on into another van, and
John Soldano suffered severe injuries rendering him a para-
plegic. Soldano was also cited for improper crossing of dou-
ble, solid yellow lines.
In a deposition, Soldano testified that the collision occurred
about one minute after he exited the Big Oak Flat Road’s sec-
ond tunnel. He described the road as curving around a large,
solid granite mountain on his right just before the location of
the collision, and said that it was the granite mountain that
obstructed his vision of the stopped van. He did not identify
any road or hillside maintenance issues that contributed to the
accident.
In April 2001, the Soldanos sued the United States under
the FTCA. Their complaint alleged that the government,
through the U.S. Department of the Interior, National Park
Service and Superintendent of Yosemite National Park,
caused or contributed to the collision by improper design of,
and failure to maintain, the road and adjacent area. The Sol-
danos specifically alleged that the location of the collision
“constituted a dangerous condition and concealed trap or hid-
den hazard causing [the Soldanos] to be surprised by stopped
SOLDANO v. UNITED STATES 7607
traffic.” They faulted the government for the negligent place-
ment of traffic signs, among other things, and alleged that the
dangerous condition of the roadway was the proximate cause
of their injuries. They sought damages for past and future
medical expenses, lost earnings and earning capacity, emo-
tional distress and loss of consortium. After a hearing, the dis-
trict court granted the government’s motion for summary
judgment, finding that a lack of evidence or the discretionary
function exception to the FTCA barred all of the Soldanos’
claims.
B. The Road and Park Policies
The Big Oak Flat Road (“Road”) is a two-lane road with
11-foot wide lanes and a northwest to southeast orientation.
It is one of the principal routes for traffic in and out of the
park and is heavily traveled during the summer tourist season.
The segment of the Road where the accident occurred
includes three tunnels, three bridges and the Cascade Creek
Bridge vista point. Eight other pullouts punctuate the Road,
which was constructed between 1937 and 1940 and has been
neither redesigned nor reconstructed since its creation.
The Road is a part of the national park system of roads. In
1968, the National Park Service created the Park Road Stan-
dards (“Standards”) to establish policies for the design and
construction of the nation’s park roads. In 1984, it prepared
new standards to be applied “as existing roads are recon-
structed or when new roads are constructed.” The 1984 Stan-
dards state that “[i]n most parks, a road system is already in
place, having been constructed in accordance with the
National Park Service Policies.” The Standards “are intended
to be applied uniformly to both new construction and recon-
struction of park roads on a Servicewide basis to the extent
practicable, based on projections of actual, or planned and
controlled use,” and they acknowledge that “[o]n rehabilita-
tion, restoration and resurfacing (3-R) projects, the standards
applicable to new construction and reconstruction will in
7608 SOLDANO v. UNITED STATES
some instances not be attainable.” Finally, the 1984 Standards
set forth the purpose of national park roads:
[P]ark roads are designed with extreme care and sen-
sitivity with respect to the terrain and environment
through which they pass — they are laid lightly onto
the land.
Each segment of every park road should relate to the
resource it traverses in a meaningful way and should
constitute an enjoyable and informative experience
in itself while providing the visitor the utmost in
visual experience. . . . A park road should be funda-
mentally designed to maintain an overall continuing
sense of intimacy with the countryside or area
through which it passes.
The purpose of park roads remains in sharp contrast
to that of the Federal and State highway systems.
Park roads are not intended to provide fast and con-
venient transportation; they are intended to enhance
visitor experience while providing safe and efficient
accommodation of park visitors and to serve essen-
tial management access needs.
The placement and use of signs in Yosemite is similarly
governed by Park Service policies, in particular those set forth
in the National Park Service Sign Manual (“Sign Manual”).
The Sign Manual delineates a number of factors that park
managers are to consider in determining where to place signs.
Managers should weigh such potentially competing ends as
minimal intrusion, avoidance of unnecessary proliferation of
signs and the safety of visitors in deciding whether to use a
particular sign at a particular location.
The Yosemite National Park Superintendent, Michael J.
Tollefson, has averred that the Park Service’s overall road
policy decisions made pursuant to the Standards involve bal-
SOLDANO v. UNITED STATES 7609
ancing preservation of natural resources, visitor enjoyment
and safety and the Park Service’s limited financial and human
resources. The Superintendent has further stated that balanc-
ing such considerations requires the exercise of discretion,
and that decisions on the Road’s design and construction,
including the placement of scenic vistas and signs on it, are
not governed by mandatory statutes, regulations or policies,
but rather by noncompulsory policies as set forth in the 1984
Standards and the Sign Manual.
STANDARD OF REVIEW
We review the district court’s summary judgment de novo.
See Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). “We
must determine, viewing the evidence in the light most favor-
able to . . . the nonmoving party, whether there are any genu-
ine issues of material fact and whether the district court
correctly applied the substantive law.” Olson v. Idaho State
Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
DISCUSSION
This appeal turns on the resolution of two questions: (1)
whether the district court properly rejected the Soldanos’
claim that the Road was negligently maintained, as not sup-
ported by admissible evidence; and (2) whether the court
erred in determining that the discretionary function exception
shields the government from liability for the rest of the Sol-
danos’ claims.
A. Negligent Maintenance
The Soldanos claim that the government’s failure properly
to maintain the site of the accident was a proximate cause of
their injuries. More specifically, they contend that overgrowth
along the road at the site of the accident made the Road’s 35
m.p.h. speed limit too high, in violation of minimum specifi-
cations set forth in the Standards. In support of their claim,
7610 SOLDANO v. UNITED STATES
the Soldanos’ expert witness, Ronald M. Shields, a traffic
engineer, stated:
The nearly vertical upward sideslope for the westerly
road direction significantly reduces the available
sight distance . . . to 180 feet based on the CalTrans
highway design charts. Actual sight distance
observed [in 2002] at the westbound curve approach-
ing the Cascade Creek Bridge was 135 feet as a
result of vegetation blocking the line of sight. Pursu-
ant to the 1984 edition of Park Road Standards, the
reduction of sight distance caused by the vegetation
would place the maximum allowable design speed
below 25 miles per hour. . . .
If the design speed (and corresponding speed limit)
had been reduced and the vegetation had been main-
tained to increase the stopping sight distance, John
Soldano would have had sufficient time to stop
before reaching the rear of the stopped van and
would not have been required to swerve into the
oncoming lane of traffic.
[1] Shields’ report is the only evidence the Soldanos pre-
sented concerning the state of vegetation and its effect on the
Road’s safety. The report, however, does not establish that
vegetation was overgrown or even existed in 1998, because
Shields’ conclusions were based on his observations in 2002.
The district court correctly recognized, therefore, that “[t]he
Soldanos provide no evidence to describe or depict the vege-
tation at issue and how it obscured vision at the time of the
collision” and instead “merely rely on [their expert’s] general
statements of vegetation overgrowth without supporting
underlying facts.” The same deficiencies prevent Shields’
declaration from calling into question John Soldano’s own
statement that it was the “rock wall” that blocked his view.
[2] Accordingly, the district court did not err in granting
summary judgment to the government on the Soldanos’ negli-
SOLDANO v. UNITED STATES 7611
gent maintenance claim. See Fed. R. Civ. P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986).
B. Negligent Design, Placement of Signs and Speed Limit
The Soldanos also allege that the Road was negligently
designed at the site of the accident. First, they claim that the
Park Service negligently designed the Road by omitting signs
warning of the danger of vehicles stopped on a blind curve.
Second, they contend that the Road’s speed limit was negli-
gently set too high relative to its design, because the Stan-
dards permit a 35 m.p.h. speed limit only where a sight
distance meets or exceeds 225 feet. Here, the nearly vertical
“sideslope” of the Road reduces the sight distance of a vehicle
in the position of the Soldanos’ to 180 feet (according to the
Soldanos’ expert’s interpretation of California Department of
Transportation highway design charts).2
[3] Given the circumstances of the accident and their
expert’s analysis, the Soldanos have presented evidence suffi-
cient to create triable issues with respect to their claims that
the Park Service’s design of the Road required warning signs
and a lower speed limit at the accident site. We therefore turn
to consider whether the district court erred in finding that the
discretionary function exception to the FTCA bars these
claims.
1. Discretionary function exception
[4] “A party may bring an action against the United States
only to the extent that the government waives its sovereign
immunity.” Valdez v. United States, 56 F.3d 1177, 1179 (9th
Cir. 1995). The FTCA waives the government’s sovereign
2
As discussed previously, although the expert Shields opined that the
sight distance was further reduced to 135 feet due to overgrown vegeta-
tion, there was no evidence of the existence or state of vegetation as of
1998.
7612 SOLDANO v. UNITED STATES
immunity for tort claims arising out of the negligent conduct
of government employees acting within the scope of their
employment. Id. Thus, the government can be sued “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).
[5] The FTCA’s waiver of immunity is limited, however,
by the discretionary function exception, which bars claims
“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 “restores the government’s immu-
nity in situations where its employees are carrying out gov-
ernmental or ‘regulatory’ duties,” Faber v. United States, 56
F.3d 1122, 1124 (9th Cir. 1995), and it “marks the boundary
between Congress’ willingness to impose tort liability on the
United States and the desire to protect certain decision-
making from judicial second-guessing.” Conrad v. United
States, 447 F.3d 760, 764 (9th Cir. 2006) (citing Berkovitz v.
United States, 486 U.S. 531, 536-37 (1988)).
To determine whether the challenged conduct falls within
the discretionary function exception, we employ a two-step
analysis. First, we determine “whether the challenged actions
involve ‘an element of judgment or choice.’ ” Valdez, 56 F.3d
at 1179 (quoting United States v. Gaubert, 499 U.S. 315, 322
(1991)). Our inquiry looks to “the nature of the conduct,
rather than the status of the actor,” and the discretionary ele-
ment is not met where “a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow.” Berkovitz, 486 U.S. at 536 (internal quotation marks
and citation omitted). In such event, our inquiry is at an end,
and the discretionary function exception does not apply
because “the employee has no rightful option but to adhere to
the directive.” Id.SOLDANO v. UNITED STATES 7613
[6] However, if an element of choice or judgment is
involved, we move to the second step of the analysis and
determine “ ‘whether that judgment is of the kind that the dis-
cretionary function exception was designed to shield.’ ” Gau-
bert, 499 U.S. at 322-23 (quoting Berkovitz, 486 U.S. at 536).
The exception “ ‘protects only governmental actions and deci-
sions based on considerations of public policy.’ ” Id. at 323
(quoting Berkovitz, 486 U.S. at 537). In other words, only
those decisions “grounded in social, economic, and political
policy” will be protected by the discretionary function excep-
tion. Childers v. United States, 40 F.3d 973, 974 (9th Cir.
1994). The exception “will apply if the discretionary decision
made is a permissible exercise of policy judgment,” Conrad,
447 F.3d at 765, even if the decision is an abuse of the discre-
tion granted. See 28 U.S.C. § 2680(a).
We acknowledge that the distinction between protected and
unprotected decisions can be difficult to apprehend, but this
is the result of the nature of governmental actions — they fall
“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.” Whisnant v. United States, 400 F.3d
1177, 1181 (9th Cir. 2005) (citing O’Toole v. United States,
295 F.3d 1029, 1035 (9th Cir. 2002) (additional citation omit-
ted)).
[7] Notwithstanding the occasionally fine line between pro-
tected and unprotected activities, general principles exist. In
particular, we have declined to find the discretionary function
exception applicable “where the challenged governmental
activity involves safety considerations under an established
policy rather than the balancing of competing public policy
considerations.” ARA Leisure Servs. v. United States, 831
F.2d 193, 195 (9th Cir. 1987) (internal alteration omitted). In
ARA Leisure Services, the Park Service’s decision to design
the Denali Park Road in Alaska without guardrails was
grounded in social, economic and political policy, but the
7614 SOLDANO v. UNITED STATES
Park Service’s failure to maintain a pass on that road in safe
condition was not. There was “no clear link between Park
Service road policies and the condition” of the pass, so the
government’s failure to maintain the road fell “in the category
of ‘ordinary “garden-variety” negligence’ ” that the FTCA did
not immunize from suit. Id. at 195-96 (quoting Aslakson v.
United States, 790 F.2d 688, 693-94 (8th Cir. 1986)).
In Summers v. United States, 905 F.2d 1212 (9th Cir.
1990), we similarly held that the Park Service’s failure to
identify and warn of the danger of hot coals to barefoot visi-
tors to a park beach “resemble[d] more a departure from the
safety considerations established in Service policies, akin to
the situation[ in] . . . ARA, . . . than a mistaken judgment in
a matter clearly involving choices among political, economic,
and social factors.” Id. at 1216. And in Seyler v. United
States, 832 F.2d 120 (9th Cir. 1987), the discretionary func-
tion exception did not preclude a claim against the Bureau of
Indian Affairs by a motorcyclist injured on an Indian reserva-
tion road that had no posted speed limit signs. The decision
not to provide such signs was not “of the nature and quality
that Congress intended to shield from tort liability,” and noth-
ing in the record demonstrated that the failure to post any
speed limits actually resulted from a protected policy deci-
sion. Id. at 123.
Most recently, in Oberson v. U.S. Dep’t of Agriculture, 441
F.3d 703 (9th Cir. 2006), we held that the Forest Service, in
raising the speed limit on a snowmobile trail to 45 m.p.h.
without first assuring the safety of travel up to that speed, did
not make a “decision grounded in public policy or . . . com-
peting policy considerations.” Id. at 709. Although the deci-
sion to open a particular trail or to adopt a 45 m.p.h. speed
limit after warranting the safety of that speed was protected,
“the Service c[ould] not claim that its failure to warn of haz-
ardous conditions at that speed [wa]s protected by the discre-
tionary function exception.” Id. at 711 (emphasis added). This
was especially true given the absence of evidence that the
SOLDANO v. UNITED STATES 7615
agency’s failure to post a warning or to remedy a known haz-
ard was the product of a policy choice. Id. at 712.
[8] On the other hand, we have held decisions about the
implementation of safety considerations on park roads and
trails to be protected, where circumstances clearly showed
they were the result of a judgment grounded in social, eco-
nomic and political policy. In Valdez v. United States, Valdez
was rendered quadriplegic when he fell down a waterfall in
Kings Canyon National Park. Valdez argued that the regula-
tions in Park Service policy manuals were mandatory, such
that the Park Service lacked any choice over the challenged
conduct. 56 F.3d at 1179-80. We rejected his argument:
While the said policy guidelines certainly outline
general policy goals regarding visitor safety, the
means by which NPS employees meet these goals
necessarily involves an exercise of discretion. These
guidelines can be considered mandatory only in the
larger sense that they set forth broad policy goals
attainable only by the exercise of discretionary deci-
sions.
Id. at 1180. Because the challenged conduct “clearly impli-
cate[d] a choice between the competing policy considerations
of maximizing access to and preservation of natural resources
versus the need to minimize potential safety hazards,” it fell
within the discretionary function exception. Id.
Likewise, Childers v. United States involved a FTCA suit
brought by the parents of David Childers, who died in a win-
ter hiking accident in Yellowstone National Park. To deter-
mine whether the Park Service’s failure to post warning signs
on the fatal trail was protected, we considered the statutes and
regulations under which the Park Service operated and held
that the decision as to the posting of warning signs was left
in the hands of Park Service rangers. 40 F.3d at 974-76.
“Their decisions [we]re policy-based, requiring them to bal-
7616 SOLDANO v. UNITED STATES
ance access with safety, and take into account conservation
and resources in designing area plans and making individual
trail determinations.” Id. at 976.
Finally, in Blackburn v. United States, 100 F.3d 1426 (9th
Cir. 1996), we held that the discretionary function exception
barred a plaintiff’s claim that the Park Service negligently
failed to warn of the danger of diving off a bridge in Yosemite
National Park. As in Valdez and Childers, the statutes and
regulations under which the Park Service operated encom-
passed an element of discretion in deciding how and when to
warn the public of known dangers:
Although the policy manuals outline general policy
goals regarding visitor safety, they do not set out the
specific means by which the NPS employees are to
meet these general goals. Furthermore, the policy
manuals’ broad mandate to warn the public of and
protect it from special hazards involves the exercise
of discretion in identifying such hazards, in deter-
mining which hazards require an explicit warning
and in determining the precise manner in which to
warn it of those hazards. See Valdez, 56 F.3d at
1180; Childers, 40 F.3d at 976.
Id. at 1431.
[9] Here, we conclude that the discretionary function
exception bars the Soldanos’ claim that the Park Service neg-
ligently designed the Road without warning signs at the site
of the accident. The exception does not, however, bar their
claim that the Park Service negligently set the speed limit for
the Road, relative to the Road’s design. Rather, that decision
was circumscribed by objective safety criteria and was not the
result of a policy decision of the kind protected by the discre-
tionary function exception.3 We address these claims in turn.
3
To the extent this court has suggested otherwise, it has done so only
in dictum. In Oberson, 441 F.3d at 711, we suggested that the decision to
SOLDANO v. UNITED STATES 7617
a. Design and sign placement
The Sign Manual sets forth guidelines on the use of signs
along park roads:
The decision to utilize a particular sign at a particu-
lar location requires the professional judgment of the
park manager — drawing upon available guides,
resources, and traffic safety engineering expertise —
and considering a variety of other factors, such as the
appearance of the road as a whole and its relation-
ship to the natural and/or historical environment
through which it passes.
It is important in this regard, too, that such decisions
bear in mind long standing [National Park Service]
policy to minimally intrude upon the natural or his-
toric setting in National Park System areas, and to
avoid an unnecessary proliferation of signs, while
striving to ensure for the safety of park visitors.
Far from imposing mandatory requirements, the Sign Manual
states that decisions about the use and placement of signs are
made at the discretion of the park manager, who must weigh
competing ends — minimal intrusion, avoidance of unneces-
sary proliferation of signs and the safety of visitors.
[10] The Park Service’s decisions about designing the Road
with warning signs placed at particular points are not man-
dated one way or another by the Sign Manual. The Service
must balance a panoply of social, economic and political con-
siderations applicable to the distinctive nature of park roads
adopt a 45 m.p.h. speed limit on a snowmobile trail would be protected
under the discretionary function exception. This statement was not essen-
tial to the holding in Oberson, as the government itself noted during oral
argument before us, and it was not developed or otherwise explained.
7618 SOLDANO v. UNITED STATES
when determining whether to design a road with a given sign
at a particular location. Deciding whether to warn of the
potential danger of stopped traffic at the site of the accident
is therefore a judgment “of the kind that the discretionary
function exception was designed to shield.” Gaubert, 499
U.S. at 322-23 (quoting Berkovitz, 486 U.S. at 536). The dis-
trict court did not err in granting summary judgment to the
government on the Soldanos’ claim that the government neg-
ligently designed the Road with insufficient warning signs.
See Blackburn, 100 F.3d at 1431; Childers, 40 F.3d at 976.
b. Design and speed limit
[11] Setting a safe speed limit for the Road as designed,
however, is different, because doing so is essentially a matter
of scientific and professional judgment, and “matters of scien-
tific and professional judgment — particularly judgments
concerning safety — are rarely considered to be susceptible
to social, economic, or political policy.” Whisnant, 400 F.3d
at 1183.
[12] The 1984 Standards specify appropriate speed limits in
light of such empirical factors as the elevation and stopping-
sight distance of a road. Significantly, they allow a speed limit
of 35 m.p.h. only where the minimum, actual stopping-sight
distance meets or exceeds 225 feet.4 Here, the Soldanos’
expert opined, without contradiction, that the actual stopping-
4
In the Standards’ words:
Minimum stopping sight distance . . . [is] directly related to the
design speed of the road. . . . The minimum and desirable stop-
ping sight distances for roads at various design speeds are shown
in Table 6. Minimum distances assume that the vehicle is travel-
ing at less than the design speed, while the desirable distances
assume that the vehicle is traveling at the design speed.
Table 6 specifies the minimum stopping-sight distance of a road with a 35
m.p.h. speed limit as 225 feet. It further states that the desirable stopping-
sight distance for such a road is 250 feet.
SOLDANO v. UNITED STATES 7619
sight distance of the Road is no greater than 180 feet at the
location of the accident due to the upward “sideslope” of the
Road as it curves around the granite mountain. Plainly, the
Road’s 35 m.p.h. speed limit at the accident location is at
odds with the specifications in Table 6 of the Standards,
which require a speed limit of no more than 25 m.p.h. for
roads with the characteristics of the accident site.
[13] “[W]e have generally held that the design of a course
of governmental action is shielded by the discretionary func-
tion exception, whereas the implementation of that course of
action is not.” Whisnant, 400 F.3d at 1181 (original empha-
sis). The element of choice involved in the Park Service’s
decision not to implement a speed limit on the Road consis-
tent with the Standards’ safety guidelines “resembles more a
departure from the safety considerations established in Ser-
vice policies, akin to the situations we confronted in Seyler,
ARA, and with regard to the construction of the canal in
Kennewick,5 than a mistaken judgment in a matter clearly
involving choices among political, economic, and social fac-
tors . . . .” Summers, 905 F.2d at 1216. Nor does the element
of choice entail a protected, discretionary selection of the
means used to meet a general policy goal, such as was the
case in Blackburn, 100 F.3d at 1431, and Valdez, 56 F.3d at
1180.
The government acknowledges that the Road’s speed limit
is not consistent with the Standards, but contends that the
Standards are not applicable to the Road and thus that the
Road’s speed limit is not a departure from the Standards’
safety specifications. In particular, the government relies on
the Standards’ purported limitation to the “new construction
5
In Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1031-32
(9th Cir. 1989), we held that the discretionary function exception shielded
the government from liability arising from the consequences of its design
of a canal, but did not protect the government from its negligent construc-
tion of the canal.
7620 SOLDANO v. UNITED STATES
and reconstruction of park roads” and, in the context of recon-
struction, the qualification that they apply only “to the extent
practicable and feasible.” The government also draws our
attention to the Standards’ acknowledgment that they “will in
some instances not be attainable” on rehabilitation, restoration
and resurfacing projects. Because the Road predates the Stan-
dards’ inception, is not a new construction and has not been
reconstructed, the government says the Standards do not
apply. We find this argument unconvincing, both because it
seems to suggest that the Standards are entirely irrelevant to
a major access road in a major national park and because it
implies that the Standards’ objective safety specifications
have no bearing on the safe maintenance of pre-existing
roads. Moreover, this argument is inconsistent with Superin-
tendent Tollefson’s own declaration that the Standards
embody the Park Service’s “long standing policies . . . with
respect to the design and construction of roads in national
parks.”
As a fallback, the government urges that even if the Stan-
dards are applicable, they endow the Park Service with a
degree of design flexibility that militates against finding any
of the Standards’ safety specifications to be mandatory.
According to the Standards’ preface:
The standards contained herein provide flexibility in
the planning and design processes to allow for con-
sideration of variations in types and intensities of
park use, for wide differences in terrain and climatic
conditions, and for protection of natural and cultural
resources in National Park System areas.
It is important to note that the standards vary consid-
erably with the type of use to be accommodated.
Basic decisions will have to be made by park man-
agement in the application of these standards based
on careful examinations of the desired use levels to
be allowed considering impacts on visitor use and
SOLDANO v. UNITED STATES 7621
resource protection in conformance with legislative
mandates.
The criteria presented have been adapted from avail-
able design standards to meet the unique require-
ments of park roads. This will provide a framework
within which design and construction of park roads
should be conducted; however, this document is not
intended to encompass a level of detail comparable
to that normally found in design manuals.
We recognize that the Standards also vest park managers with
some discretion in designing park roads to conform with the
special purpose of such roads, which “are not intended to pro-
vide fast and convenient transportation,” but instead “to
enhance visitor experience while providing safe and efficient
accommodation of park visitors and to serve essential man-
agement access needs.”6
[14] Even granting that the government is correct that the
Standards are inapplicable to the Road’s design, it does not
follow that the Standards’ basic, scientific safety specifica-
tions may be disregarded, particularly those that do not
require redesigning or reconstructing the Road. As the Stan-
dards state, “[w]hile park roads are designed differently from
other roads, they are designed, constructed, and maintained
6
The Soldanos argue that all this is immaterial because, according to
their expert, the Park Service’s Standards adopted the specifications that
had been developed in the 1930s by the American Association of State
Highway and Transportation Officials (“AASHTO”) for stopping-sight
distance, radius and degree of curves and design speed. The Soldanos thus
urge that the Standards’ latter-day requirements were already in existence
and applicable to the Road when it was originally designed and made. The
Soldanos, however, have introduced no admissible evidence that the Park
Service adopted and made the AASHTO standards mandatory, and the
Standards themselves state that criteria drawn from “available design stan-
dards” such as AASHTO have been “adapted . . . to meet the unique
requirements of park roads.” (Emphasis added.)
7622 SOLDANO v. UNITED STATES
within the norms of sound geometric standards for safety and
structural sufficiency.” (Emphasis added.) Cf. ARA Leisure
Servs., 831 F.2d at 195 (“Park Service standards explicitly
required that park roads ‘conform to the original grades and
alignments’ and that graded roads be ‘firm, [and] of uniform
cross section.’ ”). And whatever flexibility the Standards
grant the Park Service in designing a road, they do specify
that park roads “provid[e] safe and efficient accommodation
of park visitors.” (Emphasis added.) There is no reason to
suppose that this safety requirement and the Standards’ safety
specifications do not apply to the current operation of park
roads that the Park Service itself acknowledges receive heavy
use during tourist seasons, simply because they are old.
[15] Thus, although we agree with the district court that the
discretionary function exception shields the government from
liability arising from challenges to its overall design of the
Road and the means by which the Service effected that design
— including such placement and configuration choices as the
creation of the Cascade Creek Bridge vista point at the site of
the accident — we hold that the government is not insulated
from the claim that it negligently set an unsafe speed limit for
this part of the Road, relative to its design. As in ARA Leisure,
where the Park Service’s decision to design the Denali Park
Road without guard rails was protected, but its failure to
maintain the road in a state of safe repair was not, so here the
Park Service’s decision to design the Road “to closely fol-
low[ ] . . . granite mountains” and to have a vista point in a
given location is protected, but its failure to set a speed limit
consistent with those design choices is not.7 See ARA Leisure
Servs., 831 F.2d at 195; see also Oberson, 441 F.3d at 710-11;
7
With the exception of Superintendent Tollefson’s conclusory assertion
that the “establishment of speed limits” is not governed by “mandatory
statutes, regulations or policies” but by noncompulsory policies, the gov-
ernment has introduced no evidence demonstrating that the Park Service’s
decision to set a 35 m.p.h. speed limit was the result of a decision
grounded in social, economic and political policy as opposed to profes-
sional and scientific judgment. During oral argument, the government con-
SOLDANO v. UNITED STATES 7623
Summers, 905 F.2d at 1216; Seyler, 832 F.2d at 123. Accord-
ingly, the government’s purported failure to set a safe speed
limit on the Road remains a triable issue that is not precluded
by the discretionary function exception.
[16] Because the district court erred in finding that the dis-
cretionary function exception bars the Soldanos’ claim that
the government negligently set the speed limit for the Road,
we reverse the court’s summary judgment to that extent and
remand for further proceedings. In all other respects, we
affirm the district court’s judgment.
AFFIRMED in part, REVERSED in part. The parties
shall bear their own costs on appeal.
tended that it had no obligation to adduce such evidence, but could instead
rely on hypothetical justifications indicative of a social, economic and
political judgment. The law is to the contrary. See, e.g., Oberson, 441 F.3d
at 712 (failure to warn of hazardous conditions on a snowmobile trail at
a particular speed is not protected where there is an absence of evidence
that the failure to post a warning was actually the product of a policy
choice); Seyler, 832 F.2d at 123 (noting that nothing in the record demon-
strated that the failure to post speed limits on an Indian reservation road
actually resulted from a policy decision).