Terbush v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STANLI MAE THROCKMORTON 
TERBUSH; JAMES W. TERBUSH, Heirs
at law and successor in interest; No. 06-15033
PETER JAMES TERBUSH, Decedent,
Plaintiffs-Appellants,  D.C. No.
CV-02-05509-SMS
v. OPINION
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding
Argued and Submitted
November 6, 2007—San Francisco, California
Filed February 21, 2008
Before: Ferdinand F. Fernandez and M. Margaret McKeown,
Circuit Judges, and David G. Trager,1 Senior Judge.
Opinion by Judge McKeown
1
The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
1535
TERBUSH v. UNITED STATES 1539
COUNSEL
John Douglas Barr, Bar & Mudford, Redding, California; and
William O. Davis, Old Station, California, for the plaintiffs-
appellants.
Peter D. Keisler, Assistant Attorney General, McGregor W.
Scott, United States Attorney, Mark B. Stern and Isaac J. Lid-
sky, Appellate Staff, Civil Division, Department of Justice,
Washington, D.C., for the defendant-appellee.
OPINION
McKEOWN, Circuit Judge:
This case illustrates the intersection of the National Park
Service’s (“NPS”) mandate to open federal park lands for rec-
reational use, the scope of NPS’s obligation to provide for
visitor safety, and the risks of mountain climbing. In 1999,
Peter Terbush was killed by a rockslide in Yosemite National
1540 TERBUSH v. UNITED STATES
Park (“Yosemite”) while climbing Glacier Point. His family
filed claims under the Federal Tort Claims Act, 28 U.S.C.
§ 2671-2680 (the “FTCA”), claiming that it was not a freak
accident and that the NPS is responsible for creating unsafe
conditions and failing to warn of the hazards it created. The
district court dismissed for lack of subject matter jurisdiction
on the ground that the NPS’s actions fell within the discre-
tionary function exception to the FTCA. We agree with the
district court’s analysis with respect to the failure to warn
claims and those regarding the design and construction of the
wastewater facilities, but the record is insufficient to rule as
a matter of law on the Terbushes’ maintenance claims, and so
we reverse and remand on this issue.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 1999, Terbush was killed while climbing with two
friends at Yosemite’s Glacier Point Apron. Three weeks ear-
lier, another rockfall led park staff to temporarily close the
Glacier Point Apron area and the nearby Curry Village camp-
ground. The closure was lifted less than three hours after
inspection, when the area was declared to be safe by a park
ranger and James B. Snyder, the Yosemite historian who,
though not a professionally trained geologist, had been docu-
menting rockfalls at Yosemite for decades. Terbush’s climb-
ing partners claim that when they went to Glacier Point Apron
three weeks later, none of them saw any warnings about the
recent rockfall.
Terbush’s parents brought suit under the FTCA, 28 U.S.C.
§ 1346(b), alleging that NPS’s negligence in its design, con-
struction, operation, and maintenance of the wastewater man-
agement system on top of Glacier Point Apron exacerbated
the natural exfoliation of the rockface, creating a dangerous
condition that led to the rockfall that killed their son. The Ter-
bushes also alleged that the NPS failed to warn of the danger-
ous condition it had created, which was an unnatural and
unseen hazard to visitors. The United States denied the allega-
TERBUSH v. UNITED STATES 1541
tions, asserted various defenses and filed a motion to dismiss
or, in the alternative, a motion for summary judgment on the
ground that the court lacked subject matter jurisdiction under
the discretionary function exception to the FTCA. Magistrate
Judge Sandra M. Snyder granted the motion to dismiss and
declared the motion for summary judgment moot.
We review de novo the district court’s decision to grant a
motion to dismiss for lack of subject matter jurisdiction under
the discretionary function exception. GATX/Airlog Co. v.
United States, 286 F.3d 1168, 1173 (9th Cir. 2002). In
reviewing the district court’s dismissal, we must accept as
true the factual allegations in the complaint. Id. (citing United
States v. Gaubert, 499 U.S. 315, 327 (1991)). The United
States bears the burden of proving the applicability of the dis-
cretionary function exception. Prescott v. United States, 973
F.2d 696, 702 (9th Cir. 1992).
II. ANALYSIS
A. THE FEDERAL TORT CLAIMS ACT FRAMEWORK
[1] The FTCA waives the government’s sovereign immu-
nity for tort claims arising out of negligent conduct of govern-
ment employees acting within the scope of their employment.
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)(1).
[2] The FTCA includes a number of exceptions to this
broad waiver of sovereign immunity, including the oft-
litigated “discretionary function exception,” which provides
immunity from suit for “[a]ny claim . . . based upon the exer-
cise or performance or the failure to exercise or perform a dis-
cretionary 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). In this way, the
1542 TERBUSH v. UNITED STATES
discretionary function exception serves to insulate certain
governmental decision-making from “judicial ‘second guess-
ing’ of legislative and administrative decisions grounded in
social, economic, and political policy through the medium of
an action in tort.” United States v. S.A. Empresa de Viacao
Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814
(1984).
The Supreme Court in Berkovitz v. United States set out a
two-step analysis to determine applicability of the exception.
See Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).
First, we must determine whether the challenged actions
involve an “element of judgment or choice.” Gaubert, 499
U.S. at 322. This inquiry looks at 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. If there is such 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.” Id.
When a specific course of action is not prescribed, how-
ever, an element of choice or judgment is likely involved in
the decision or action. We then must consider “whether that
judgment is of the kind that the discretionary function excep-
tion was designed to shield,” namely, “only governmental
actions and decisions based on considerations of public poli-
cy.” Berkovitz, 486 U.S. at 536-37. Public policy has been
understood to include decisions “grounded in social, eco-
nomic, or political policy.” Varig, 467 U.S. at 814. Even if the
decision is an abuse of the discretion granted, the exception
will apply. See 28 U.S.C. § 2680(a); Soldano v. United States,
453 F.3d 1140, 1145 (9th Cir. 2006).
The distinction between protected and unprotected actions
and decisions has proven itself to be a particularly vexing
TERBUSH v. UNITED STATES 1543
determination for district and appellate courts alike. As we
noted recently, governmental actions “can be classified along
a spectrum, ranging from those ‘totally divorced from the
sphere of policy analysis,’ such as driving a car, to those
‘fully grounded in regulatory policy,’ such as the regulation
and oversight of a bank.” Whisnant v. United States, 400 F.3d
1177, 1181 (9th Cir. 2005) (quoting O’Toole v. United States,
295 F.3d 1029, 1035 (9th Cir. 2002)). Courts have been reluc-
tant to create formulaic categories or to demarcate flashpoints
on this spectrum to illuminate which governmental decisions
fall within the discretionary function exception. See GATX/
Airlog Co., 286 F.3d at 1174 (“Whether a challenged action
falls within the discretionary function exception requires a
particularized analysis of the specific agency action chal-
lenged.”); Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995)
(noting the Supreme Court’s rejection of “analytical frame-
works” as “inappropriate means of addressing the discretion-
ary function exemption.”).
The Supreme Court underscored this point in Gaubert,
when it rejected a bright line between planning and opera-
tional functions. See Gaubert, 499 U.S. at 325 (“Discretionary
conduct is not confined to the policy or planning level. ‘[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.’ ”) (quoting Varig, 467 U.S. at 813).
In Gaubert, a shareholder of an insolvent savings and loan
association brought suit alleging negligent supervision of
directors and officers and negligent involvement in day-to-
day operations by federal regulators. Id. at 319-20. In clarify-
ing its prior treatment of the issue, the Court rejected the
plaintiff’s reliance on a misunderstanding of the law that cre-
ated convenient, but false, distinctions: The Court noted that
the Court of Appeals had “misinterpreted” Berkovitz to “per-
petuat[e] a nonexistent dichotomy between discretionary
functions and operational activities. . . .” Id. at 326.
[3] Instead of a rigid dichotomy between “planning” and
“operational” decisions and activities, the Court in Gaubert
1544 TERBUSH v. UNITED STATES
adopted a different rule: “if a regulation allows the employee
discretion, the very existence of the regulation creates a strong
presumption that a discretionary act authorized by the regula-
tion involves consideration of the same policies which led to
the promulgation of the regulations.” Id. at 324. Thus,
“[w]hen established governmental policy, as express or
implied by statute, regulation, or agency guidelines, allows a
Government agent to exercise discretion, it must be presumed
that the agent’s acts are grounded in policy when exercising
that discretion.” Id.
Under Gaubert, for a complaint to survive a motion to dis-
miss, it 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 (emphasis added). The Court clarified, “[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.
B. APPLICATION OF THE DISCRETIONARY FUNCTION
EXCEPTION TO THE TERBUSHES’ CLAIMS
[4] Before discussing the Terbushes’ specific claims, as an
initial matter we note that the authority for the NPS’s work is
grounded in the Organic Act, 16 U.S.C. § 1, which sets forth
the broad policy considerations that govern the NPS’s man-
agement of national parks. The Organic Act states the NPS’s
purpose is “to conserve the scenery and the natural and his-
toric 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 gener-
ations.” 16 U.S.C. § 1. Much of the NPS’s work is “ground-
ed” in the Organic Act’s broad mandate to balance
conservation and access. See, e.g., Childers v. United States,
40 F.3d 973, 975 (9th Cir. 1994). However, we do not quickly
accept that every minute aspect of the NPS’s work is touched
TERBUSH v. UNITED STATES 1545
by the policy concerns of the Organic Act. Cf. Gotha v.
United States, 115 F.3d 176 (3d Cir. 1997) (rejecting govern-
ment’s argument that national security concerns were impli-
cated in a decision of whether to install a staircase or bar
passage down an embankment on a naval base). Accordingly,
we must analyze each of the claims in light of the applicable
policies and the Organic Act.
The Terbushes allege a collective failure by the NPS to pro-
vide for the safety of visitors to Glacier Point. They claim that
once the NPS undertook to develop facilities atop Glacier
Point, it could not do so negligently, either in the design, con-
struction or maintenance of the facilities, or in the failure to
warn the public of hazards. Specifically, they argue that the
NPS was aware of the hidden hazard posed by the unnatural
exfoliation of Glacier Point Apron by the wastewater manage-
ment system, but failed to adequately ameliorate the problem
through appropriate maintenance or warn the public of the
hidden hazard they had effectively created. The Terbushes’
arguments amount to a “perfect storm” theory wherein the
NPS’s various failings over several decades built upon one
another, making Peter Terbush’s death inevitable and, in their
view, preventable by the NPS.
The government counters that the NPS’s decisions and
actions were discretionary ones grounded in the policy regime
established by the Organic Act. The government also contests
the Terbushes’ portrayal of the NPS policies, arguing that
they do not create mandatory and specific duties, but rather
vest the NPS with considerable discretion in their implemen-
tation. Pointing to our case law, the government claims that
these discretionary decisions are “susceptible” to policy anal-
ysis and are therefore immune from our review.
1. Design, construction, and maintenance of the
wastewater system
The Terbushes claim that the NPS’s negligent design, con-
struction and maintenance of the wastewater facilities atop
1546 TERBUSH v. UNITED STATES
Glacier Point exacerbated the natural exfoliation of Glacier
Point Apron, thereby creating an unseen hazard to climbers
like Peter Terbush. Our case law teaches, however, that
design matters involve discretionary decisions by government
actors. See, e.g., Kennewick Irrigation Dist. v. United States,
880 F.2d 1018, 1027 (9th Cir. 1989); Chaffin v. United States,
176 F.3d 1208, 1210 (9th Cir. 1999) (discretionary function
exception “renders the government immune from a negli-
gence claim for [a] design decision [in the construction of a
cabin]”). In light of this obstacle, the Terbushes counter that
they are not asserting a faulty design claim, but rather their
claim is about the NPS’s “failure to implement mandated
safety reviews” prior to the construction of the facilities atop
Glacier Point and ongoing maintenance after construction. We
agree with the district court’s detailed analysis that the vari-
ous NPS policies do not contain mandatory and specific direc-
tives to which the NPS had “no rightful option but to adhere,”
Berkovitz, 486 U.S. at 536, and that these decisions were
“grounded” in the policy regime established by the Organic
Act.
a. 1988 Management Policies—Impairment, safety
and hazard reviews
[5] We do not read the policies cited by the Terbushes to
contain mandatory and specific provisions dictating that
impairment, safety and hazard “reviews” must occur in the
manner they describe, and note that sections of the policies to
which they cite vest considerable discretion in the NPS that
is clearly grounded in the broad mandate to balance conserva-
tion with access and safety.
[6] For example, the 1988 Management Policies apply to
all national parks and guide policy that “sets the framework
and provides direction for management decisions” that are to
be made by managers and superintendents, who are to “ascer-
tain park-specific purposes and management direction.” The
Management Policies state that “[w]ide variations exist in the
TERBUSH v. UNITED STATES 1547
degree to which the laws and proclamations creating the indi-
vidual units of the national park system prohibit or mandate
specific management actions.” Although the policies “gener-
ally allow for management discretion . . . they are mandatory
where the language so indicates.”
More specifically, the so-called “impairment review”
described by the Terbushes is explicitly recognized as involv-
ing a decision by the superintendent that calls for reconciling
the “inevitabl[e] . . . tension between conservation of
resources on the one hand and public enjoyment on the
other.” This reconciliation calls for judgment on the part of
the NPS:
[w]hether an individual action is or is not an ‘impair-
ment’ is a management determination. In reaching it,
the manager should consider such factors as the spa-
tial and temporal extent of the impacts, the resources
being impacted and their ability to adjust those
impacts, the relation of the impacted resources to
other park resources, and the cumulative as well as
the individual effects.
This provision is not a mandatory and specific policy, and the
language itself implicates the NPS’s broader mandate to bal-
ance access with conservation.
[7] Nor do the 1988 Management Policies explicitly call for
safety and hazard “reviews.” While the document states that
facilities “will not be located” in areas where natural pro-
cesses, including “geologic conditions,” pose a persistent
threat “unless no practicable alternative site exists and unless
all safety and hazard probability factors have been consid-
ered,” nowhere is there an explicit call for a safety and hazard
“review.” Rather, “[w]here facilities must be located in such
areas, their design and siting will consider the nature of the
hazard and include appropriate mitigating measures to mini-
mize the risks to human life and property.” Unlike wetlands
1548 TERBUSH v. UNITED STATES
and floodplains, for which the NPS elsewhere provides fur-
ther requirements to be met prior to development, no further
requirements are provided for mitigation measures relating to
“geologic conditions.” Absent further mandatory and specific
directives, in constructing the facilities atop Glacier Point, the
NPS is left to balance its various policy mandates of access,
safety and conservation.
b. Maintenance of wastewater management system
Recognizing the absence of mandatory standards vis-a-vis
design, the Terbushes shift the focus of their claim arguing
that “[t]he gravaman of [their] reasoning goes not to facility
design and location” but to “the operation and maintenance of
the [wastewater] system,” which they claim was negligent.
The Terbushes also claim that the magistrate judge “ignored
the existence of NPS-50 [the 1991 Loss Control Management
Guidelines], OSHA standards and Park-specific policies and
failed to recognize that “maintenance is not the kind of policy
weighing decision automatically provided immunity.” The
government responds that because the Terbushes cannot point
to any mandatory or specific requirements for the repair and
maintenance of the facilities, “the first prong of the discretion-
ary function analysis is not at issue.”
[8] It is true that the magistrate judge did not analyze the
maintenance claims in the same detail as the other claims.2
Nonetheless, we agree with the government that absent a
mandatory and specific policy dictating otherwise, we are left
to assume that the maintenance of the wastewater manage-
ment system is a discretionary function. Analyzing the main-
2
In regards to maintenance, the magistrate judge simply wrote: “The
policies concerning the siting and maintenance of wastewater facilities
state broad policy objectives and refer to competing policy considerations.
There is no mandatory, specific policy that required particular action of
any NPS agent in connection with the death of decedent.” It is unclear
which policies are referenced in this finding.
TERBUSH v. UNITED STATES 1549
tenance claims under the second Berkovitz prong is, however,
a bit more complicated.
We must determine whether such maintenance work would
involve protected policy judgments. The focus of our inquiry
is “on the nature of the actions taken and on whether they are
susceptible to policy analysis.” Gaubert, 499 U.S. at 325.
Relying on a footnote in Whisnant, the government argues the
maintenance decisions clearly implicate the NPS’s policy
regime. Citing Bear Medicine, Whisnant summarized: “The
decision to adopt safety precautions may be based in policy
considerations, but the implementation of those precautions is
not. . . .” Whisnant, 400 F.3d at 1182 (quoting Bear Medicine
v. United States, 241 F.3d 1208, 1215 (9th Cir. 2001)). The
opinion goes on to state in a footnote:3
Our case law reveals one exception—not relevant
here—to the design/implementation distinction: 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 for-
est fire.
Id. at 1182 n.3.
According to the government, the maintenance of the
wastewater system is clearly within the exception in Whis-
nant. Thus, like firefighters needing to consider public safety
and their own safety in battling forest fires, see Miller v.
United States, 163 F.3d 591, 595-96 (9th Cir. 1998), prison
3
The court distinguished its new rubric from the planning/operational
distinction rejected by Gaubert by noting that “the former [design/
implementation] concerns the nature of the decision, while the latter
[planning/operational] concerns the identity of the decisionmaker.” Id. at
1181 n.1.
1550 TERBUSH v. UNITED STATES
guards who must balance prisoner safety and their own safety
in searching prisoners’ cells in response to a reported threat,
see Alfrey v. United States, 276 F.3d 557, 565 (9th Cir. 2002),
or the FAA’s efforts to oversee compliance with federal
safety regulations, see GATX/Airlog, 286 F.3d at 1175-77, the
government contends that the maintenance of the wastewater
system implicates the policy concerns of the regulatory
regime of the Organic Act and other policies.
It is a long leap from routine maintenance of a wastewater
system to fighting forest fires and guarding prisoners. The
decisions and actions in the cases highlighted by Whisnant
appear to involve far more than mere maintenance (indeed,
what unites them are safety considerations), which returns our
focus to the “nature” of the actions and decisions in question
here.
[9] Our case law directs that, by nature, matters of routine
maintenance are not protected by the discretionary function
exception because they generally do not involve policy-
weighing decisions or actions. See Bolt v. United States, 509
F.3d 1028, 1034 (9th Cir. 2007) (observing that snow removal
from a parking lot is “maintenance work,” which is “ ‘not the
kind of regulatory activity’ to which the Supreme Court envi-
sioned the discretionary function exception applying”) (quot-
ing ARA Leisure Servs. v. United States, 831 F.2d 193, 195
(9th Cir. 1987)). For example, in Whisnant, we confronted a
clear case of maintenance failure: claims against a naval com-
missary for failing to eradicate a mold problem in its meat
department. See Whisnant, 400 F.3d at 1181.
[10] Looking to other circuits, we observe that sometimes
“maintenance” is far from routine and may involve consider-
able discretion that invokes policy judgment. See, e.g., Mitch-
ell v. United States, 225 F.3d 361, 364 (3d Cir. 2000) (noting
that repairing roadside wall involved balancing several policy
considerations); Baum v. United States, 986 F.2d 716, 723-24
(4th Cir. 1993) (noting that maintenance could be accom-
TERBUSH v. UNITED STATES 1551
plished only by “outright replacement,” and was thus a deci-
sion about “how and when to replace a major element of a
substantial public facility” that implicated economic and
political policy, i.e., allocation of funds); Cope, 45 F.3d at 451
(observing that further repairs of a road required NPS to pri-
oritize among its repairs and to “establish priorities for the
accomplishment of its policy objectives against such practical
considerations as staffing and funding.”) (quoting Varig, 467
U.S. at 820).
[11] Though our own case law frowns upon the govern-
ment relying solely on fiscal policy and budgetary constraints
as the “protected” policy considerations protected by the excep-
tion,4 Cope and Baum nonetheless lend support to the govern-
ment’s arguments by substantiating the possibility that
particular maintenance activities, unlike cleaning out mold
from a store, as in Whisnant, or re-paving a road to precise
specifications, as in ARA Leisure, can involve more than ini-
tially meets the eye. If the maintenance of the wastewater
facilities turned out to involve a balancing of policy consider-
ations, more complex decisions or outright replacement, as in
Baum, these decisions would tend to implicate the broader
mandates of the NPS’s policy regime.
The difficulty here is that we cannot determine on the
record before us whether the challenged maintenance at issue
4
See, e.g., O’Toole, 295 F.3d at 1037 (“Every slip and fall, every failure
to warn, every inspection and maintenance decision can be couched in
terms of policy choices based on allocation of limited resources. . . . Were
we to view inadequate funding alone as sufficient to garner the protection
of the discretionary function exception, we would read the rule too nar-
rowly and the exception too broadly.”); Whisnant, 400 F.3d at 1184 (“we
decline to permit the government to use the mere presence of budgetary
concerns to shield allegedly negligent conduct from suit under the FTCA”)
(emphasis added). But see Nat’l Union Fire Ins. v. United States, 115 F.3d
1415, 1421-22 (9th Cir. 1997) (reconciling disparate holdings and con-
cluding that only “[w]here a statute or policy plainly requires the govern-
ment to balance expense against other desiderata, then considering the cost
of greater safety is a discretionary function.”).
1552 TERBUSH v. UNITED STATES
is maintenance that falls beyond policy judgments or whether
it tends to the other end of the spectrum, which implicates
broader mandates of NPS’s policy regime. Merely establish-
ing that the boundaries of maintenance are discretionary is not
sufficient.
Although we recognize Gaubert’s presumption of actions
taken in furtherance of a regulatory regime’s goals to be
“grounded” in the policy of the regulatory regime, and are
aware that we do not need actual evidence of policy-weighing
in any given decision, there still must be some support in the
record that the decisions taken are “susceptible” to policy
analysis for the discretionary function exception to apply. On
this point, the government bears the burden. It is not sufficient
for the government merely to waive the flag of policy as a
cover for anything and everything it does that is discretionary
in nature. “Consideration of tenets that sweep so broadly is of
little use in the application of the discretionary function
exception.” Gotha, 115 F.3d at 181 (declining to see the
Navy’s mission to “provide a defense to the Nation or to
enforce its diplomatic efforts” implicated in a decision to
install a handrail on a staircase). Indeed, if all that were
required were a bald incantation of “policy,” then such an
approach would swallow the second prong of Berkovitz.
In reviewing the extensive and varied case law in this cir-
cuit and elsewhere, we decline to adopt a rule that would evis-
cerate the original purpose of the statute by an overly-
generous reading of the policy-based prong of the exception.
As we noted in O’Toole, the FTCA was created by Congress
with the intent “to compensate individuals harmed by govern-
ment negligence,” and as a “remedial statute,” it “should be
construed liberally, and its exceptions should be read narrow-
ly.” 295 F.3d at 1037 (citing Kielwien v. United States, 540
F.2d 676, 681 (4th Cir. 1976)). Although much time has
passed, we should not forget the Supreme Court’s early obser-
vation that in adopting the FTCA, Congress sought to prevent
the unfairness of allowing “the public as a whole” to benefit
TERBUSH v. UNITED STATES 1553
“from the services performed by Government employees,”
while allocating “the entire burden” of government employee
negligence to the individual, “leav[ing] him destitute or griev-
ously harmed.” Rayonier Inc. v. United States, 352 U.S. 315,
320 (1957).
[12] Because the parties and the district court to some
degree lumped the question of maintenance together with the
other claims regarding design and construction, we cannot
determine whether the government met its burden to prove the
applicability of the exception as a matter of law. Accordingly,
we remand for further proceedings on this issue.
2. Failure to warn of hazards
The second major claim relates to a failure to warn of the
rockfall hazard. Recognizing that identification of a manda-
tory duty is a threshold requirement, the Terbushes point us
to two documents: 1) the 1991 Loss Control Management
Guidelines, NPS-50 (“NPS-50”), which, they argue, required
the “park safety officer” to conduct site inspections and write
an incident report following accidents involving the public,
and dictated that following the May 1999 rockfall, Curry Vil-
lage should have been closed and warning signs posted; and
2) the 1993 Resource Management Plans (“1993 Plans”),
which, they argue, required the creation of a geologic hazard
education program that would educate the public about known
potential dangers.
Before turning to the specifics of those documents, we
review our case law on warnings. Most of our cases in the
post-Gaubert era have held that fulfilling the NPS’s decision
to warn the public of hazards in the national parks entails the
kind of policy weighing decision protected from judicial
review by the discretionary function exception.
[13] We have interpreted the broad mandate of the Organic
Act, as well as NPS-50, to call upon the NPS to “balance
1554 TERBUSH v. UNITED STATES
access with safety, and take into account conservation and
resources in designing area plans,” in determining the safety
of particular areas, and choosing the “precise manner” in
which to warn the public of any hazards. Childers, 40 F.3d at
975-76. As noted in Childers, such decisions are “precisely
the kind the discretionary function exception was intended to
immunize from suit.” Id. at 976. See also Valdez v. United
States, 56 F.3d 1177, 1180 (9th Cir. 1995) (NPS officials
must employ their “discretion to balance, within the con-
straints of the resources available to them, a statutory mandate
to provide access with the goal of public safety”) (quoting
Childers, 40 F.3d at 926); Blackburn v. United States, 100
F.3d 1426, 1431 (9th Cir. 1996) (the “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.”) (citing Valdez, 56 F.3d at 1180); Faber v. United
States, 56 F.3d 1122, 1127 (9th Cir. 1995) (distinguishing
specific policies in Forest Service plans from the “general
operating procedures” in Childers, which required the NPS to
“weigh public access against visitor safety.”) (citing Childers,
40 F.3d at 974).
Despite the wealth of cases underscoring that safety deci-
sions by the NPS are the ultimate policy-driven discretionary
exercise, we acknowledge that our case law may not be in
complete harmony on this issue, which is perhaps the inevita-
ble result of such a policy-specific and fact-driven inquiry.
For example, the Terbushes argue that their case is like Sum-
mers v. United States, 905 F.2d 1212 (9th Cir. 1990), where
we held that a failure to warn was not protected by the discre-
tionary function exception. In Summers, a child was injured
while walking barefoot on hot coal remnants of a beach fire
that were left within a fire ring. Summers claimed the NPS
had been negligent in warning of the hazard posed by the hot
coals. The court concluded that there was “no evidence . . .
that NPS’s failure to post warnings . . . was the result of a
TERBUSH v. UNITED STATES 1555
decision reflecting the competing considerations of the Ser-
vice’s sign policy,” and held that the Park Service’s failure to
identify and warn of the danger of the hot coals “resemble[d]
more a departure from the safety considerations established in
Service policies . . . than a mistaken judgment in a matter
clearly involving choices among political, economic, and
social factors.” Id. at 1215-16.
The Terbushes overlook, however, that courts since Sum-
mers, which was decided before Gaubert, have marginalized
its importance. To begin, Summers has been distinguished on
its facts. See, e.g., Blackburn, 100 F.3d at 1432 (observing
that, unlike in Summers, the NPS did have to consider policy
issues in identifying hazards and choosing how to warn). We
also distinguished Summers in Lesouer, noting that while
Summers may have only involved “safety consideration under
an established policy, rather than the balancing of competing
policy considerations,” other cases could be more compli-
cated. Lesouer v. United States, 21 F.3d 965, 970 (9th Cir.
1994). Such a case presented itself in Faber, where we elabo-
rated upon Lesouer and limited application of the discretion-
ary function exception to situations “where the government
was required to engage in broad policy-making activities or to
consider unique social, economic, and political circumstances
in the course of making judgments related to safety.” 56 F.3d
at 1125.
[14] As in Blackburn, we also distinguish Summers from
the present case. Whereas the court in Summers stated that
there was no evidence5 that the NPS’s failure to post warnings
5
Of course, after Gaubert we do not need actual evidence that policy-
weighing was undertaken. See Gaubert, 499 U.S. at 324-25. Other courts
have also limited Summers’ impact on this very basis. See, e.g., Rosebush
v. United States, 119 F.3d 438, 443-44 (6th Cir. 1997) (noting that the
rationale in Summers was rejected the following year in Gaubert and con-
flicts with Sixth Circuit case law); see also Donald N. Zillman, Protecting
Discretion: Judicial Interpretation of the Discretionary Function Excep-
tion to the Federal Tort Claims Act, 47 ME. L. REV. 365, n.94 (1995)
(observing that this portion of Summers’ holding is “probably invalid”
after Gaubert).
1556 TERBUSH v. UNITED STATES
“was the result of a decision reflecting the competing consid-
erations of the Service’s sign policy,” here, in contrast, the
mandates of access, conservation and safety were at issue in
the NPS’s decisions in identifying the scope of the rockfall
hazard as well as the appropriate means of warning the public.
The district court correctly observed that “the more funda-
mental defect with Plaintiffs’ argument is that the decision
cannot be boiled down to a simple recognition of the exis-
tence of some hazard. The entire process, including identify-
ing hazards, determining which hazards require a warning,
and determining how and when and where the warning should
proceed, involves discretion.” As in Childers, Valdez and
Blackburn, this process of identifying and responding to haz-
ards in the wild implicates the NPS’s broader policy mandates
to balance access with conservation and safety. Summers,
then, appears out of step with our other NPS failure to warn
cases decided post-Gaubert.
a. NPS-50
[15] Turning to the specific policies that the Terbushes
claim mandated particular actions by the NPS, we observe
that NPS-50 is designated as “Management Guidelines” that
have wide application to all territory under NPS control.
Reading through the document, one is hard pressed to find
any mandatory requirements applicable here. That discovery
should be no surprise in light of the document’s intended role
as a policy guideline. The guidelines are also largely inappli-
cable to the rockfall activity at Glacier Point Apron because
the rockface is not an NPS “facility” or “operation,” nor was
the event here an “employee accident” covered by the guide-
lines.
[16] The first chapter of NPS-50 states that the program
objectives of the NPS’s Safety and Occupational Health Pro-
gram include “[p]roviding for the safety and health of the
public (visitors) from recognized hazards in NPS operations,
on NPS lands, and in NPS facilities . . . .” The Terbushes fix-
TERBUSH v. UNITED STATES 1557
ate on the phrase, “on lands,” to argue that the NPS-50
includes a natural rockface like Glacier Point, but this general
language must be read within the context of the document as
a whole, which is reasonably interpreted to apply to all facili-
ties and operations, not natural rock features.
[17] We agree with the district court’s findings that “these
provisions are not reasonably interpreted to apply to recre-
ational activities at rock faces, which are not NPS ‘facilities
or operations.’ ” It is easy to see how a definition as expan-
sive as the Terbushes posit is impractical in light of the diffi-
culties in “inspecting” and “abating” hazards in the millions
of acres of open space, wilderness and vast terrain over which
the NPS exercises authority.6 Nor do we agree with the Ter-
bushes’ interpretation of the NPS-50 as applicable to non-
employee accidents. Thus, even the provisions of Chapter 22
of the NPS-50, which explicitly relate to visitor safety, suffer
from both shortcomings: they relate to inspection of
employee-caused accidents in NPS “workplaces,” “facilities”
or “operations.”
Accordingly, the Terbushes’ assertion that the park safety
officer was required to be involved in the inspection of any
incidents of rockfall activity glosses over both the fact that the
Glacier Point Apron is not a “facility,” an “operation,” or a
“workplace,” and the fact that the May 1999 rockfall was not
an “employee accident[ ]/incident[ ]” in the language of the
guidelines.
The second deficiency of the Terbushes’ claims is that
NPS-50 vests park officials with considerable discretion in
6
For example, Chapter 5 indicates that “[e]very NPS facility, operation
and/or workplace, including employee housing, shall be formally
inspected annually. More frequent inspections will be conducted when
there is an increased risk of accidents.” It then elaborates examples of
those facilities to be inspected more frequently, such as those “used for
overnight accommodations and group gatherings.”
1558 TERBUSH v. UNITED STATES
determining the appropriate scope of investigations and warn-
ings, as is evident from the overall nature of the NPS-50 as
a broad set of guidelines and the more specific references to
inspection of hazards. The introduction to NPS-50 explicitly
states that it is a “guideline” that has been prepared to provide
“field units and office managers” with enough information “to
develop a comprehensive safety and occupational health pro-
gram,” but that “each area must design its own safety and
occupational health effort based on local circumstances and
operations.”
[18] Contrary to the Terbushes’ suggestion, the statement
in Chapter 1 that “requirements in this document are manda-
tory unless otherwise stated,” cannot alone convert otherwise
discretionary decisions into specifically mandated prescrip-
tions for action or criteria for decision making. See Sabow v.
United States, 93 F.3d 1445, 1453 (9th Cir. 1996) (“presence
of a few, isolated provisions cast in mandatory language does
not transform an otherwise suggestive set of guidelines into
binding agency regulations.”) (citing Chamberlin v. Isen, 779
F.2d 522, 525 (9th Cir. 1985)). This wide-ranging policy
manual is one of general application providing individual park
managers with broad policy guidelines that the Department of
Interior expects them to elaborate with park-specific policies.
The same can be said of the more specific “requirements”
cited by the Terbushes. The clearest statement of the duty to
inspect accidents is repeated in several places, notably in
Chapters 6 and 22, which reiterate the same language: “All
accidents should be investigated, including accidents involv-
ing property damage only. The extent of such investigations
shall reflect the seriousness of the accident or of the potential
for reoccurrence.” There can be little doubt that this provision
is discretionary on its face.
Even Chapter 22, which directs NPS policy towards the
visiting public, does not contain mandatory and specific pro-
visions that rob the NPS of discretion. This section contains
TERBUSH v. UNITED STATES 1559
the broad directive that “the NPS region and park should
establish a public safety program that minimizes the potential
for injury, illness, death and/or property damage to the public
while they are visiting NPS facilities,” and also includes a
section entitled, “Educational Materials, Signs, Programs,”
where it states that “[a]ll areas will provide any special mate-
rials, signs and programs to alert the public of potential dan-
gers.”
The broad nature of these provisions stands in sharp con-
trast to the park safety provisions in Faber, which the Ter-
bushes argue controls our decision. In Faber, Faber dove
approximately twenty feet from a rock ledge, sustaining
injury. Prior to the accident, the Forest Service had promul-
gated several “site management plans” for the Tanque Verde
Falls, one of which required it to “develop a sign plan, formu-
late an on-going media program to inform the public, and pro-
vide a presence at the Falls to verbally warn the public,
enforce the laws, and record use patterns.” 56 F.3d at 1123-
24. None of these specific steps were taken before the acci-
dent. We held that the discretionary function exception did
not apply because one of the plans “listed three specific and
mandatory measures that the Forest Service was to take in
order to increase safety at the Falls.” Id. at 1126. We added,
“[b]ecause the challenged conduct . . . was in direct contra-
vention of a specifically prescribed federal policy, the discre-
tionary exception does not apply.” Id.
[19] Our most recent failure to warn case is also instructive.
In Navarette v. United States, 500 F.3d 914 (9th Cir. 2007),
we held the Army Corps’ failure to warn campers of a danger-
ous “drop-off” to be in contravention of a mandatory and spe-
cific policy to warn visitors of such dangerous terrain
conditions. Significantly, unlike here, the policy in Navarette
explicitly listed drop-offs as a hazardous terrain condition that
required warning. Id. at 918-19. In contrast, as here, the NPS
had to exercise its discretion in determining the extent of the
rockfall hazard and the appropriate response to it. The kinds
1560 TERBUSH v. UNITED STATES
of decisions involved in making this assessment are protected
by the exception. See Alfrey, 276 F.3d at 565 (the exception
“protects agency decisions concerning the scope and manner
in which it conducts an investigation so long as the agency
does not violate a mandatory directive.”) (quoting Vickers v.
United States, 228 F.3d 944, 951 (9th Cir. 2000) (emphasis
omitted). Similarly, the NPS’s decision to close Glacier Point
and the extent to which it later chose to warn about rockfalls
at Glacier Point were discretionary judgments as well.7
[20] The Terbushes’ claim at heart is that the NPS should
have done more following the May 1999 rockfall to warn the
public, but this is precisely the kind of determination that is
protected from our review. But in the context of this case,
Childers, Valdez, and Blackburn all protect from judicial
review NPS decisions determining the scope of hazards and
the appropriate means to alert the public to the danger they
pose. Cf. Elder v. United States, 312 F.3d 1172, 1183-84
(10th Cir. 2002) (questioning what could ever “constitute an
adequate warning,” and noting that park management must
“judge the totality of the safety package in terms of its impact
on other public policies besides safety.”). Under the Gaubert
standard, the decisions made at Yosemite about warning the
7
The Terbushes argue that the rockfall hazards had been identified since
at least 1980, when the 1980 General Management Plan recommended
removal of the Curry Village cabins. They argue further that the failure to
remove the cabins was a violation of a mandatory and specific policy call-
ing for their removal. We cannot find any mandatory or specific directives
within that plan, which is a broad visionary document foreseeing develop-
ments at Curry Village and elsewhere in Yosemite over “approximately”
ten years at “estimated costs” of over $150 million. Indeed, the document
refers to itself as “propos[ing],” rather than mandating, a shift in the loca-
tion of some of the present facilities. Creating and executing a multi-
million dollar development plan not only involves an element of choice,
but it also involves the balancing of the kinds of policy considerations
exempted by the discretionary function exception. “The presence of a few,
isolated provisions cast in mandatory language does not transform an oth-
erwise suggestive set of guidelines into binding agency regulations.”
Sabow, 93 F.3d at 1453 (citing Chamberlin, 779 F.2d at 525).
TERBUSH v. UNITED STATES 1561
public were “grounded” in the NPS’s policy regime. See Gau-
bert, 499 U.S. at 325.
b. Resource Management Plan—Hazard
Education Program
The other policy cited by the Terbushes is the 1993
Resource Management Plan, which they claim mandated a
one-year period for implementing a geologic hazards educa-
tion program based on the observation that “there exist seri-
ous geologic hazards to human safety along park roads and in
Yosemite Valley in particular.” Notably, the introductory
paragraph on “Management Objectives,” states: “[t]hese man-
agement objectives are used to guide the development of the
management strategies, action plans, and project statements in
subsequent sections of the Resource Management Plan.”
(emphasis added). Thus, while a specific time-frame of one
year is mentioned in the section addressing geologic hazards,
viewed in its proper context, the one-year time frame is not
mandatory as it falls within a chapter on “objectives,” i.e.,
broad goals meant to “guide” park managers in implementing
the management plan, and thereby calling upon them to con-
tinue to exercise their discretion in implementing the plan in
the various subject areas it addresses.
[21] Even if the one-year deadline were viewed as a man-
datory and specific directive, the NPS retained discretion in
how to implement this directive, which would necessitate fur-
ther decisions and actions protected by the discretionary func-
tion exception. See, e.g., Miller, 163 F.3d at 595 (standards
and procedures did outline certain requirements for fire sup-
pression, but did “not eliminate discretion because they do not
tell firefighters how to fight the fire,” i.e., in a “specific man-
ner and within a specific period of time.”). As the court in
Miller noted, “[t]he existence of some mandatory language
does not eliminate discretion when the broader goals sought
to be achieved necessarily involve an element of discretion.”
Id. Accordingly, we do not read the provisions calling for a
1562 TERBUSH v. UNITED STATES
hazard education program to create a mandatory and specific
duty, and conclude that the discretion the NPS had in imple-
menting this program is “susceptible” to the policy consider-
ations of the regulatory regime established by the Organic
Act.
AFFIRMED IN PART; REVERSED IN PART and
REMANDED. Each party shall bear its own costs on appeal.