H. v. United States ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 C.H., et al., No. 1:19-cv-00435-DAD-EPG 12 Plaintiffs, 13 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 14 UNITED STATES OF AMERICA, (Doc. No. 15) 15 Defendant. 16 17 This matter came before the court on defendant United States of America’s motion to 18 dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. 19 (Doc. No. 15.) A hearing on the motion was held on November 19, 2019.1 Attorney Kevin 20 Kalajian appeared telephonically on behalf of plaintiffs Noe Hurtado, Karla Monserrat Diaz 21 Hernandez, C.H., and F.H. Assistant United States Attorney Joseph Frueh appeared 22 telephonically on behalf of the government. Having reviewed the parties’ briefing and heard oral 23 argument, and for the reasons set forth below, the court will grant defendant’s motion to dismiss. 24 ///// 25 1 The undersigned apologizes for the excessive delay in the issuance of this order. This court’s overwhelming caseload has been well publicized and the long-standing lack of judicial resources 26 in this district has reached crisis proportion. Unfortunately, that situation sometimes results in the 27 court not being able to issue orders in submitted civil matters within an acceptable period of time. This situation is frustrating to the court, which fully realizes how incredibly frustrating it is to the 28 parties and their counsel. 1 BACKGROUND 2 Plaintiffs’ complaint alleges the following. Plaintiffs are citizens and residents of Mexico. 3 (Doc. No. 1 (“Compl.”) at ¶ 6.) Plaintiffs Hurtado and Hernandez are the parents of C.H. and 4 F.H. (Id. at ¶ 7.) On September 3, 2017, the family vacationed in the United States, visiting 5 Yosemite National Park (“Yosemite”). (Id. at ¶¶ 7, 9.) At all times, Yosemite was owned, 6 operated, managed and to be maintained by defendant United States of America through the 7 National Park Service (“NPS”). (Id. at ¶ 10.) 8 While attempting to exit the park via California State Route 120, plaintiffs had to stop 9 their car on Big Oak Flat Road because a tree branch had blocked the road. (Id. at ¶ 11.) Plaintiff 10 Hurtado exited the vehicle to move the branch. (Id.) As he was returning to the vehicle, plaintiff 11 Hurtado witnessed a tree (the “Subject Tree”) fall onto the vehicle in which the rest of the 12 plaintiffs had remained. (Id.) Plaintiffs Hernandez, C.H., and F.H. were all injured as a result. 13 (Id.) While awaiting emergency response, plaintiff Hurtado and bystanders removed C.H. from 14 the vehicle, but plaintiffs Hernandez and F.H. remained trapped inside and could not be removed 15 without moving the vehicle from under the tree. (Id. at ¶ 12.) Once bystanders moved the tree 16 and plaintiff Hernandez was removed from the vehicle, one bystander gave her rescue breath. 17 (Id.) F.H. remained pinned in the vehicle. (Id.) Eventually, plaintiff Hernandez and F.H. were 18 airlifted to the hospital for treatment. (Id.) 19 Plaintiffs allege that as a direct, legal, and proximate result of the government’s acts and 20 omissions, plaintiffs Hernandez, C.H., and F.H. suffered significant economic and non-economic 21 damages, including but not limited to ongoing medical expenses, physical pain and suffering, 22 emotional distress, disability, and lost wages. (Id. at ¶ 14.) Plaintiff Hurtado suffered emotional 23 distress; economic and non-economic damages; and loss of support, services, love, 24 companionship, affection, society, and other elements of consortium. (Id.) Plaintiffs believe and 25 allege that the Subject Tree was one of a group of many trees left “standing dead” in that area of 26 the National Park, and that immediately following this failure of the Subject Tree, NPS 27 employees removed numerous nearby trees that they had determined to be hazardous. (Id. at 28 ///// 1 ¶ 16.) According to plaintiffs, the government, through NPS, negligently maintained the park 2 premises and the Subject Tree. (Id. at ¶ 22.) 3 On April 4, 2019, plaintiffs filed this complaint alleging one cause of action: negligence 4 for premises liability pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1). 5 (Compl.) On October 1, 2019, the government filed the present motion to dismiss for lack of 6 subject matter jurisdiction. (Doc. No. 15.) On October 22, 2019, plaintiffs filed their opposition, 7 and on November 7, 2019, the government replied thereto. (Doc. Nos. 17, 19.) 8 LEGAL STANDARD 9 A party may move to dismiss a case for a lack of subject matter jurisdiction. Fed. R. Civ. 10 P. 12(b)(1). “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 11 Co. of Am., 511 U.S. 375, 377 (1994). Because of this, “[i]t is to be presumed that a cause lies 12 outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party 13 asserting jurisdiction.” Id. (internal citations omitted). 14 Challenges to jurisdiction may be either facial or factual in nature. San Luis & Delta- 15 Mendota Water Auth. v. U.S. Dep’t of the Interior, 905 F. Supp. 2d 1158, 1167 (E.D. Cal. 2012). 16 A facial attack to jurisdiction “accepts the truth of the plaintiff’s allegations but asserts that they 17 ‘are insufficient on their face to invoke federal jurisdiction.’” Leite v. Crane Co., 749 F.3d 1117, 18 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 19 2004)). On the other hand, a factual attack “contests the truth of the plaintiff’s factual allegations, 20 usually by introducing evidence outside the pleadings.” Id. In a factual challenge, the court “is 21 not restricted to the face of the pleadings, but may review any evidence, such as affidavits and 22 testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. 23 United States, 850 F.2d 558, 560 (9th Cir. 1988). 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 ANALYSIS 2 The government moves to dismiss plaintiffs’ complaint in its entirety, arguing that 3 plaintiffs’ claim falls within the discretionary function exception to the FTCA.2 “As a sovereign, 4 the United States is immune from suit unless it waives such immunity.” Chadd v. United States, 5 794 F.3d 1104, 1108 (9th Cir. 2015) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). The 6 waiver of sovereign immunity is a prerequisite to federal court jurisdiction. Tobar v. United 7 States, 639 F.3d 1191, 1195 (9th Cir. 2011); see also United States v. Mitchell, 445 U.S. 535, 538 8 (1980). The FTCA waives the government’s sovereign immunity for tort claims arising out of 9 negligent conduct of government employees acting within the scope of their employment. 10 Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008); see also United States v. 11 Sherwood, 312 U.S. 584, 586 (1941). Pursuant to the FTCA, the United States can thus be sued 12 “under circumstances where the United States, if a private person, would be liable to the claimant 13 in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. 14 § 1346(b)(1); Chadd, 494 F.3d at 1109. 15 The FTCA, however, provides various exceptions to this broad waiver of sovereign 16 immunity. One such carve-out is the discretionary function exception, which provides immunity 17 from suit for “[a]ny claim based upon the exercise or performance or the failure to exercise or 18 perform a discretionary function or duty on the part of a federal agency or an employee of the 19 Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The 20 exception is designed to “prevent judicial ‘second-guessing’ of legislative and administrative 21 decisions grounded in social, economic, and political policy through the medium of an action in 22 tort.” Chadd, 794 F.3d at 1108 (citing United States v. S.A. Empresa de Viacao Aerea Rio 23 Grandense (Varig Airlines), 467 U.S. 797 (1984)). “The government bears the burden of proving 24 that the discretionary function exception applies.” Myers v. United States, 652 F.3d 1021, 1028 25 (9th Cir. 2011). 26 2 The tragic events which took place in Yosemite giving rise to this action have obviously had a 27 devastating impact on the lives of the plaintiffs. Despite that devastating impact, however, the issue before this court is whether the United States is immune from suit in this instance, thereby 28 depriving this court of subject matter jurisdiction over the action. 1 In Berkovitz v. United States, 486 U.S. 531, 536–37 (1988), the Supreme Court 2 established a two-step test for determining the applicability of the discretionary function 3 exception. Under that test, this court must first consider whether the challenged conduct is 4 “discretionary in nature,” that is, whether the actions “involve an ‘element of judgment or 5 choice.’” Terbush, 516 F.3d at 1129 (quoting United States v. Gaubert, 499 U.S. 315, 327 6 (1991)); see also Berkovitz, 486 U.S. at 536 (noting that the focus is on the nature of the conduct 7 rather than the status of the actor). The discretionary function exception will not apply if “a 8 federal statute, regulation, or policy specifically prescribes a course of action for an employee to 9 follow,” because “there can be no element of discretion when an employee has no rightful option 10 but to adhere to the directive.” Terbush, 516 F.3d at 1129; see also Berkovitz, 486 U.S. at 536. If 11 the Berkovitz test is satisfied at step one, the analysis proceeds to the second step, at which the 12 court must determine whether the discretion left to the government “is of the kind that the 13 discretionary function exception was designed to shield,” that is, discretion rooted in 14 “considerations of public policy.” Bailey v. United States, 623 F.3d 855, 860 (9th Cir. 2010); see 15 also Myers, 652 F.3d at 1028. Ultimately, if the challenged act or omission satisfies the two steps 16 of the Berkovitz test, the government is immune from suit based on that act or omission, and 17 federal courts lack subject matter jurisdiction over the action. Bailey, 623 F.3d at 860. This 18 immunity exists even if the act or omission in question constituted an abuse of discretion or was 19 the wrong choice under the circumstances. See 28 U.S.C. § 2680(a); Terbush, 516 3d. at 1129 20 (“Even if the decision is an abuse of the discretion granted, the exception will apply.”) 21 As discussed below, applying the two-part test set out in Berkovitz, the court must 22 conclude that the discretionary function exception precludes plaintiffs’ claim for alleged negligent 23 premises maintenance against the United States. 24 A. NPS Tree Policies are Discretionary in Nature. 25 The government argues that plaintiffs’ claim is barred by the discretionary function 26 exception because NPS tree management policies are discretionary in nature. (Doc. No. 15-1 at 27 11–12.) “Whether a challenged action falls within the discretionary function exception requires a 28 particularized analysis of the specific agency action challenged.” Young v. United States, 769 1 F.3d 1047, 1053 (9th Cir. 2014) (citing GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 2 (9th Cir. 2002)). “Therefore, the Court must identify the challenged agency action before it may 3 determine whether that conduct involved ‘an element of judgment or choice.’” Kim v. United 4 States (“Kim I”), No. 1:16-cv-01656-LJO-SKO, 2017 WL 2619129, at *6 (E.D. Cal. June 16, 5 2017). 6 Here, plaintiffs’ complaint alleges that the government negligently maintained the park 7 “as to cause or permit the said area to be in a dangerous, defective, unsafe and hazardous 8 condition, thereby causing a large tree to fall into the roadway and proximately cause their 9 injuries.” (Compl. at ¶ 22.) Plaintiffs’ complaint alleges that “federal regulations specifically 10 require the NPS to inspect and maintain trees near public roadways,” (id. at ¶ 23), and plaintiffs’ 11 opposition brief specifies that in this instance the government failed to comply with Yosemite 12 National Park Directive No. 25, the Hazard Tree Management Plan (Doc. No. 17 at 4–5). 13 Plaintiffs also alleges that prior to the day of the incident, the government’s “employees had 14 knowledge of trees ‘standing dead’ within Yosemite, that dead trees pose a heightened hazard risk 15 near roadways and other targets, and that the National Park Service has no discretion with respect 16 to removing trees that are ‘standing dead.’” (Compl. at ¶ 20.) 17 Policies concerning tree hazard management in Yosemite come in three different forms: 18 federal statutes, NPS-promulgated policies, and Yosemite Annual Work plans. The authority of 19 the NPS to manage national parks is generally outlined in the Organic Act, 54 U.S.C. § 100101(a) 20 (amending and replacing 16 U.S.C. § 1 (repealed 2014)), which grants the NPS a broad mandate 21 “to conserve the scenery and the natural and historic objects and the wild life therein and to 22 provide for the enjoyment of the same in such manner and by such means as will leave them 23 unimpaired for the enjoyment of future generations.” The Act also authorizes the Secretary of the 24 Interior to “provide for the destruction of such animals and plant life as may be detrimental to the 25 use of any System unit.” Id. § 100752. However, the statute does not articulate specific methods 26 for implementing these broad mandates, but rather sets out only a general framework for national 27 park management. Pursuant to federal statutory grants of authority, the NPS “[has] discretion to 28 design and implement a policy for evaluating and removing trees.” Autery v. United States, 992 1 F.2d 1523, 1528 (11th Cir. 1993) (finding that the Organic Act gave the NPS discretion to design 2 and implement a policy for evaluating and removing trees from national parks); see also Kobi v. 3 United States, No. 1:15-cv-00478-DAD-BAM, 2016 WL 6599748, at *5 n.4 (E.D. Cal. Nov. 7, 4 2016) (reciting the facts of cases illustrating NPS’s broad discretion). 5 In its pending motion to dismiss, the government submits various NPS policies and 6 guidelines, including the NPS Management Policies, the Pacific West Region Directive PWR- 7 062, Yosemite National Park Directive No. 25, the Yosemite Vegetation Management Plan, and 8 the 1993 Guidelines for Managing Hazardous Trees. (Doc. Nos. 15-3, 15-4, 15-5, 15-6, 15-7.) 9 Attached to the government’s motion is the declaration of Brian S. Mattos, the Park Forester at 10 Yosemite during the time of the incident in question. (Doc. No. 15-2 at ¶ 1–2.) Declarant Mattos 11 contends that he coordinated the tree-hazard management program at the park and describes 12 Directive No. 25 as “a framework for a hazard tree program” that states that the “park 13 superintendent retains discretion to administer the program with available park staff and financial 14 resources in the context of other legal requirements and other considerations.” (Id. at ¶ 22.) 15 Accordingly, the government argues that plaintiffs cannot identify any mandatory and specific 16 statute or regulation requiring the removal of “standing dead trees.” (Doc. No. 15-at 11.) 17 In opposition, plaintiffs argue that “[w]hile the Pacific West Region Directive PW-062 18 vests discretion with the park superintendent to develop and administer a hazard tree management 19 program,” the government “failed with to comply with Yosemite National Park Directive #25, the 20 Hazard Tree Management Plan, it implemented.” (Doc. No. 17 at 4.) Plaintiffs point out that 21 section 6.E of Directive No. 25 emphasizes that “[w]hatever type of survey/inspection is 22 accomplished, it is imperative that written documentation of the inspection be kept,” while 23 section 6.G. advises that 24 A park hazard tree management program must include a monitoring component to perform follow-up surveillance/examination of 25 previously examined trees rated medium/moderate or above; to follow-up on abatement/mitigation actions; to review the status of 26 any park closures; and to track the numbers of trees lost per acre due to abatement/mitigation actions. 27 28 ///// 1 (Id. at 4–5; see also Doc. No. 15-5 at 8.) Plaintiffs note that the government’s exhibits comprise 2 copies of tree inspection and treatment reports from the 2016 and 2017 fiscal years, but those 3 documents only list tree inspections for dead trees that had been removed by the government at 4 the time of the inspection. (Doc. No. 17 at 5.) Plaintiffs assert that based on NPS’s tree hazard 5 rating system, the Subject Tree’s condition on the day of the incident warranted monitoring or 6 management action. (Id.) 7 In reply, the government contends that plaintiffs’ argument necessarily and erroneously 8 presumes a mandatory duty to inspect the Subject Tree. (Doc. No. 19 at 2.) The government 9 argues that NPS was neither required to inspect the Subject Tree nor required to survey the 10 relevant portion of Big Oak Flat Road. (Id. at 3.) Further, the government argues that even if 11 NPS was required to take some action at some point with respect to the Subject Tree, nothing 12 required the agency to act before September 3, 2017, or to take measures that necessarily would 13 have prevented the incident that occurred here. (Id. at 3–4.) 14 The court is persuaded by the government’s argument. The decision in Kim v. United 15 States is instructive here. There, plaintiffs were the parents of one of two teenaged boys who 16 sustained fatal injuries when struck by a limb that fell from a California black oak in Yosemite. 17 Kim I, 2017 WL 2619129, at *1. Plaintiffs brought claims for wrongful death and negligent 18 infliction of emotional distress against the United States, “alleging that Defendant was negligent 19 in maintaining the Subject Tree and the area around it, and that Defendant knew or should have 20 known of a defect in the tree.” Id. When the discretionary function exception was invoked, 21 plaintiffs “argue[d] that the statement in Directive # 25 that ‘[t]rees with a high or very high 22 hazard rating will require some type of abatement/mitigation’ establishes that some response is 23 mandatory once a sufficiently severe tree hazard is identified.” Id. at *6. In other words, 24 plaintiffs’ position was “that Defendant may not ‘ignore visible hazards that pose a risk to human 25 lives.’” Id. In finding that the government met its burden at step one if the Berkovitz test, the 26 district court noted that plaintiffs “ha[d] not offered any evidence that Defendant in fact rated or 27 should have rated the Subject Tree as a high or very high hazard.” Id. Moreover, the court 28 ///// 1 reiterated that “[a]t step one of the discretionary-function-exception analysis, all that matters is 2 that there was, in fact, discretion.” Id. (internal citation and quotation marks omitted). 3 After the government filed its motion to dismiss in this action, the Ninth Circuit decided 4 the appeal in the Kim case. See Kim v. United States, 940 F.3d 484 (9th Cir. 2019) (“Kim II”).3 5 In addressing step one of the Berkovitz test, the Ninth Circuit in Kim II declined to “decide 6 whether the government is right about the nature of its supposed discretion over which areas to 7 inspect, because any such discretion is beside the point in this case.” Id. at 488. The government 8 had admitted to inspecting the campground in each of the two years prior to the accident, 9 identifying and abating hundreds of hazard trees but not identifying the subject tree as hazardous. 10 Id. Accordingly, the Ninth Circuit left unresolved the question that is presently before this court. 11 See id. (“Regardless of whether the discretionary function exception might apply to some 12 hypothetical decision not to inspect the campground, here we must decide whether Park officials 13 are shielded from liability for their conduct in actually inspecting that area once they undertook to 14 do so.”).4 15 Here, the government argues that Kim II is inapplicable because the evidence establishes 16 that the Subject Tree was not inspected and NPS did not employ its tree hazard rating system to it. 17 (Doc. No. 19 at 4.) The court agrees. See Lam v. United States, 979 F.3d 665, 678 (9th Cir. 18 2020) (Kim II “turned on Directive 25, part of Yosemite National Park policies. And as the panel 19 explained, once the Park officials undertook to inspect the trees in the park, they had to follow the 20 established policies.”) (internal citations omitted); Garcia v. United States, No. 20-cv-00220- 21 PHX-MTL, 2021 WL 1056294, at *6 (D. Ariz. Mar. 18, 2021) (distinguishing Kim II while 22 noting that “[a]s the court in Lam recognized, when the government is balancing multiple policy- 23 24 3 After the district court dismissed the original complaint in Kim I, the plaintiffs filed an amended complaint. Kim II, 940 F.3d at 486–87. Subsequently, the district court dismissed the amended 25 complaint without leave to amend, and plaintiffs timely appealed. Id. at 487. 26 4 Notably, the plaintiffs in Kim had “separately alleged that Park officials in fact knew” of the 27 danger posed by the subject tree in that case because the subject tree “had similarly broken in the past and had begun to bow noticeably above the campsite in question.” 940 F. 3d at 490. In the 28 complaint in this case, plaintiffs have advanced no similar allegations. 1 driven factors without a specific system in place to instruct its decision-making process, the 2 government will be protected by the discretionary function exception”). 3 Most importantly in this case, plaintiffs have not alleged that the government inspected 4 the Subject Tree and failed to document or monitor it properly. Rather, in opposing the pending 5 motion to dismiss, plaintiffs merely argued that the government failed to document all of the trees 6 it inspected. (See Doc. No. 17 at 5) (“Defendant failed to document the inspections that were 7 conducted and instead only documented the trees that were removed,” and “[h]ad Defendant 8 documented the full extent of the trees inspected, it would have been aware of the dead [Subject 9 Tree].”). The government asserts that the Subject Tree was not documented because the portion 10 of Big Oak Flat Road where the Subject Tree was situated was not surveyed. (Doc. No. 19 at 2.) 11 This is corroborated by the declaration of Gene Smith, Roads and Trails Facility Manager at 12 Yosemite. (See Doc. No. 19-1 at ¶ 4) (“During 2016 and 2017, the supervisory employees 13 overseeing forestry district operations exercised their discretion to survey and treat certain 14 portions of Big Oak Flat Road, but not the area where the tree failure occurred on September 3, 15 2017.”). 16 At the hearing on the pending motion, plaintiffs conceded that their claim would be barred 17 by the discretionary function doctrine if the Subject Tree was never inspected. However, 18 plaintiffs observe that the relevant documents fail to establish that the Subject Tree was not 19 inspected. (See Doc. No. 15-13.) Plaintiffs also argue that the government had a duty to monitor 20 trees that were not being inspected, and no documentation before the court shows that the Subject 21 Tree was being monitored. Nonetheless, plaintiffs have pointed to no policy stating that trees that 22 have not been inspected must be monitored. As noted, plaintiffs assert that the government only 23 documented the trees that were removed. But they also concede that there is apparently no 24 applicable monitoring policy and also admit that they cannot confirm whether the Subject Tree 25 was inspected at some prior time or was monitored. In sum, plaintiffs have not identified a 26 “specific mandatory tree hazard management protocol which displaces the element of discretion 27 afforded to the National Park Service in Yosemite” with respect to the Subject Tree. Kim I, 2017 28 WL 2619129, at *7. 1 Accordingly, the court concludes that the government has satisfied the first step of the 2 Berkovitz test for application of the discretionary function exception. 3 B. NPS’s Tree Management is Susceptible to Policy Analysis. 4 At step two of the Berkovitz test, the key inquiry is whether the decision giving rise to tort 5 liability is “susceptible to a policy analysis.” Miller v. United States, 163 F.3d 591, 593 (9th Cir. 6 1998); see also Gaubert, 499 U.S. at 325 (emphasizing that the focus is “on the nature of the 7 actions taken” rather than on the agent’s subjective intent); Chadd, 794 F.3d at 1109 (noting that 8 the exception is not confined to the policy or planning level). If the relevant rule gives 9 government employees discretion under Berkovitz at step one of the analysis, there is “a strong 10 presumption” that the authorized conduct involves consideration of public policy under Berkovitz 11 at step two of that analysis. See Chadd, 794 F.3d at 1109. Plaintiff “‘must allege facts which 12 would support a finding that the challenged actions are not the kind of conduct that can be said to 13 be grounded in the policy of the regulatory regime.’” Id. (quoting Gaubert, 499 U.S. at 324–25).5 14 5 It has been held that the challenged government decision need not actually have been grounded 15 in policy considerations to satisfy the second step of the Berkovitz test, so long as the decision theoretically implicates policy concerns. See e.g., Miller v. United States, 163 F.3d 591, 593 (9th 16 Cir. 1998) (the challenged decision “need not be actually grounded in policy considerations”); Gibson v. United States, 809 F.3d 807, 813 (5th Cir. 2016) (the inquiry is “not whether the 17 decision maker in fact engaged in a policy analysis”); Herden v. United States, 726 F.3d 1042, 1047 (8th Cir. 2013) (“[T]he [discretionary function] exception applies ‘whether or not [a] 18 defendant in fact engaged in conscious policy-balancing.”) (en banc) (quoting C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 801 (8th Cir. 1993)); Cranford v. United States, 466 F.3d 19 955, 955 (11th Cir. 2006) (the discretionary function exception analysis does not focus “on whether the agent actually weighed policy considerations”); Smith v. Washington Metropolitan 20 Area Transit Authority, 290 F.3d 201, 214 (4th Cir. 2002) (the exception can apply “without any showing that its employees actually considered policy goals in making the decisions alleged to be 21 negligent.”). The Supreme Court, however, has never stated that the exception applies to government conduct not actually rooted in policy considerations. See generally Gaubert, 499 22 U.S. at 323 (“[T]he exception protects only government actions and decisions based on considerations of public policy.”). For this reason, the Ninth Circuit’s decision in Miller, and 23 those like it, have been subject to some criticism. See Chadd v. United States, 794 F.3d 1104, 1114 (9th Cir. 2015) (Berzon, concurring) (criticizing the holding in Miller that the challenged 24 decision need not be actually grounded in policy considerations and observing “that is not what Gaubert says—it says the opposite.”) According to Judge Berzon’s concurring opinion in Chadd, 25 “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 26 ‘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.” Chadd, 794 F.3d at 1114; see 27 also Gonzalez v. United States, 814 F.3d 1022, 1040-43 & n. 2 (9th Cir. 2015) (Berzon, dissenting). However, Miller remains the controlling Ninth Circuit precedent and is binding on 28 this court. See Chadd, 794 F.3d at 1114. 1 In applying the second step of the Berkovitz analysis, the Ninth Circuit has identified 2 certain governmental decisions that are not of the kind that the discretionary function exception 3 was designed to shield. For example, that court has observed that “actions based on technical or 4 scientific standards” are generally not protected from liability by the discretionary function 5 exception. Marlys Bear Medicine v. U.S. ex rel. Secretary of Dep’t of Interior, 241 F.3d 1208, 6 1214 (9th Cir. 2001). Likewise, actions implementing prior policy decisions have been found not 7 to be susceptible to policy analysis, absent evidence to the contrary. Whisnant v. United States, 8 400 F.3d 1177, 1183 n.3 (9th Cir. 2005); see also Summers v. United States, 905 F.2d 1212, 1216 9 (9th Cir. 1990) (“[L]iability for negligence may be imposed where, as here, the governmental 10 decision involved is found not to be grounded in economic, political, or social judgment.”); Gotha 11 v. United States, 115 F.3d 176, 181–82 (3d Cir. 1997) (observing that the discretionary function 12 exception is not meant to apply to “mundane, administrative, garden-variety housekeeping 13 problem[s]”). But cf. Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995) (cautioning against an 14 excessive focus on the distinction between implementation or execution of policy decisions, and 15 emphasizing that the critical inquiry is “[w]hether the nature of the decision involved the exercise 16 of policy judgment”). 17 Here, the government argues that resolution of the pending motion “turns on whether and 18 how often trees should be surveyed, the locations and manner in which surveys occur, as well as 19 when and how to abate or mitigate hazards, whether by removing or modifying trees, neutralizing 20 targets, or providing warnings.” (Doc. No. 15-1 at 12) (internal citations omitted). The 21 government also argues that this case “implicates whether and under what circumstances the 22 agency should prioritize other policy goals, such as resource conservation and budgeting and 23 staffing.” (Id.) Declarant Mattos points to the 1993 Guidelines (Doc. No. 15-6) as evincing 24 NPS’s “decision-making challenge” when considering tree removal: a balancing act of factors 25 such as “visitor experience and safety, . . . effects on rare and endangered species on their critical 26 habitat, impacts to visual resources or cultural landscape values, impacts to soils and hydrology, 27 significant alteration of local natural forest structure and composition, and wildlife nesting or 28 breading periods.” (Doc. No. 15-2 at ¶ 24.) Declarant Mattos also points to the NPS Policies of 1 2006 and Directive PWR-062, which this court has previously found to “reference the medley of 2 policy considerations implicated in tree hazard management decisions of the NPS.” Kobi, 2016 3 WL 6599748, at *6. Lastly, Mattos notes that Directive No. 25 “reiterates the policies set forth in 4 Directive PWR-062” and gives the park superintendent discretion to administer the program with 5 park staff and financial resources in mind. (Doc. No. 15-2 at ¶ 22.) Notably, plaintiffs’ 6 opposition brief does not address step two of the Berkovitz test. 7 The court concludes that the specific tree management decisions challenged by plaintiffs 8 in their claim are susceptible to policy analysis. The government has presented abundant 9 evidence indicating that tree management decisions in Yosemite implicate larger concerns— 10 economic considerations, employee safety concerns, cultural considerations, and environmental 11 interests. Kobi, 2016 WL 6599748, at *6. As the Smith Declaration explains, 12 Given the unprecedented tree mortality in Yosemite during 2016 and 2017, and given the finite resources allocated to forestry district 13 operations, tree surveys and treatment in Yosemite has focused on campgrounds, picnic areas, and other “high” rated targets as a 14 priority vis-à-vis “medium” or “low” rated targets, such as roads. . . . [T]he supervisory employees . . . exercised their discretion to survey 15 and treat certain portions of Big Oak Flat Road, but not the area where the tree failure occurred on September 3, 2017. 16 17 (Doc. No. 19-1 at ¶ 3.) The allocation of finite resources is a policy judgment the Ninth Circuit 18 has long held to be protected under the discretionary-function exception. See Valdez v. United 19 States, 56 F.3d 1177, 1180 (9th Cir. 1995). For these reasons, the court concludes that the 20 government has also satisfied the second step of the Berkovitz test with respect to plaintiffs’ 21 negligent maintenance claim, and that the discretionary function exception therefore applies here. 22 See Valdez, 56 F.3d at 1179–80 (concluding that NPS decisions concerning national park trail 23 maintenance “clearly implicate[] a choice between the competing policy considerations of 24 maximizing access to and preservation of natural resources versus the need to minimize potential 25 safety hazards”). 26 Accordingly, the government’s motion to dismiss plaintiffs’ negligent maintenance claim 27 for lack of subject matter jurisdiction will be granted. As noted above, plaintiffs have conceded 28 that it does not appear that there is any applicable monitoring policy if the Subject Tree was not 1 | inspected, and they have no way of confirming whether the Subject Tree was inspected at some 2 || prior time or was monitored. Indeed, it is likely that plaintiffs’ claim would also fall outside of 3 | the discretionary function exception if NPS Aad inspected the Subject Tree. See Kim IT, 940 F.3d 4 | at 490 (holding that Park officials employing Directive No. 25’s tree hazard rating system after 5 | identifying a hazardous tree requires scientific and professional judgment and therefore is not 6 | exempt from the scope of the FTCA). Nonetheless, in light of plaintiffs’ concession in this 7 | regard, there are no additional facts that plaintiffs can allege to state a claim that facially falls 8 | outside the discretionary function exception. See A.M. v. United States, No. 19-cv-1108 TWR- 9 | AGS, 2020 WL 6276021, at *4 (S.D. Cal. Oct. 23, 2020) (“To defeat a motion to dismiss, 10 | plaintiffs must advance a claim that is facially outside the discretionary function exception.”) 11 (citing Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992)). Because no amendment 12 | could change the outcome, granting leave to amend here would be futile. Plaintiffs’ complaint 13 | will therefore be dismissed without leave to amend and with prejudice. 14 CONCLUSION 15 For all of the reasons set forth above: 16 1. Defendant’s motion to dismiss (Doc. No. 15) is granted; 17 2. Plaintiffs’ complaint (Doc. No. 1) is dismissed without leave to amend and with 18 prejudice; 19 3. All previously scheduled dates in this action are vacated; and 20 4. The Clerk of the Court is directed to close this action. 21 | IT IS □□ ORDERED. me □ 22 Dated: _ March 23, 2021 al, Al 4 7 ae 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 14