Unpublished Disposition, 898 F.2d 156 (9th Cir. 1987)

MEMORANDUM^* 

Appellants appeal from the district court's order granting the government's motion for dismissal for lack of subject matter jurisdiction. Appellants contend that the discretionary function exemption to the Federal Tort Claim Act ("FTCA"), 28 U.S.C. § 2671 et seq., is inapplicable in the context of this case.

We affirm.

FACTS AND PROCEEDINGS

This is an action for wrongful death. On July 26, 1981, a flash flood swept through the Tanque Verde Falls area of the Coronado National Forest. Eight people were killed in the flood and several more were injured. The deceased included: Michele Balser, age 18; Kevin Clark, age 19; Michael P. Waid, age 11; Paul Waid, age 33; Ralph Chatham, age 27; and Darla Heredia, age 18. Steven Waid, age 8, was severely injured.

The appellants are the relatives of the deceased: Joseph W. Balser, Jr. and Madonna H. Balser, parents of Michele Balser; Frederick R. and Margaret M. Clark, parents of Kevin Clark; Paula Waid, parent of Michael Waid and personal representative for the Estate of Paul Waid; Marge Chatham, parent of Ralph Chatham; and Delores Roberson, parent of Darla Heredia.

The deceased were recreational users of the Tanque Verde Falls area of the Coronado National Forest. This National Forest is managed by the United States Forest Service.

Procedures governing the administration of National Forests are contained in the Forest Service Manual ("FSM"), issued by the Forest Service central office in Washington, D.C. See 36 C.F.R. Sec. 200.4. Safety and health directives are found in Title 6700 of the FSM. FSM Sec. 6703 provides, in part:

The policy of the Forest Service is: ...

2. To reduce the number of injuries, illnesses, and property damage incidents in situations under Forest Service jurisdiction by: ...

d. Providing safe and healthful facilities and pertinent safety and health information to visitors.

With regard to flood warnings, FSM Sec. 2512.3 provides:

Flood Warning and Preventive Action Planning. Flood probabilities and forecasting have been developed primarily to meet the needs of downstream communities and are of limited use for many National Forest System headwater conditions. Flood stages are not adequately defined for headwater streams. The streams may crest long before crest stage is reached at key forecasting stations.

Line officers are responsible for initiating, planning, and arranging for obtaining quantitative precipitation forecasts and assisting National Forests with timely flood or high water warnings to expedite damage control activities. Each forest should ultimately develop its own flood and high water warning system. (emphasis added).

Pursuant to these directives, in 1976, the Coronado National Forest created its Public Safety Action Plan. The plan was submitted by the District Ranger, the "line officer" for the Santa Catalina Ranger District, and included action for the Tanque Verde Falls area. The plan identified safety hazards within the district and directed actions to minimize risk to visitors. The plan included placing signs at the Tanque Verde area to warn of the primary hazards, diving into shallow pools and slipping from steep slopes. The District Ranger eventually discarded the idea of warning signs due to the multitude of access trails into the Tanque Verde Falls area. This area is not a permanent recreational facility, but rather a rugged, wild river area flowing down a steep canyon in the Santa Catalina mountains, near Pima, Arizona. Usage of this area is heaviest in March and April, followed closely by July and August.

At the time of formulating the action plan, the District Ranger did not identify flash floods as a safety hazard. Prior to the flood of July 26, 1981, there had been no injuries or fatalities attributable to flash flooding in the Santa Catalina Ranger District. The Ranger was aware that there was always potential for flash floods in any of the canyons in the Santa Catalina mountains during the summer rainy season. However, the Tanque Verde Falls area was no more at risk than any of the other canyons within the area. Two previous flash floods had occurred in the Sabino Canyon area, but with damage only to property.

The Forest Service does not have an articulated policy regarding the identification of all natural hazards. Emphasis has been on man-made hazards in connection with developed areas, such as trails and campgrounds. The Tanque Verde Falls area is completely undeveloped, reachable only by a dirt road and a half mile hike.

The U.S. Geological Survey had a stream gauge located one and a half miles downstream from the Tanque Verde Falls area. It registered a flash flood on July 25, 1981. It also registered the flash flood of this action and a much larger flash flood four days later. The flood of July 26, 1981 had a recurrence interval of once every two years; the later flood had a recurrence interval of approximately once every fifty years.

On July 26, 1981, there were no warning signs posted alerting to the dangers of flash floods, nor was access to the Tanque Verde Falls area restricted. The only posted sign requested that visitors pack out their trash. The weather was clear and sunny on that date.

After the accident, the plaintiffs filed timely administrative claims, pursuant to 28 U.S.C. § 2671 et seq. These claims were denied by the United States on April 25, 1985. Plaintiffs then filed this action in the United States District Court for the District of Arizona under the FTCA on July 12, 1985. The district court had jurisdiction under 28 U.S.C. § 1346(b). On January 22, 1986, the district court consolidated the complaints for future proceedings.

The complaints alleged that the United States had been negligent in: (1) failing to warn the public of the danger of flash floods as a result of conditions that the United States knew or should have known existed during July, 1981; (2) failing to monitor upstream conditions which the United States knew or should have known would result in flash flooding; and (3) failing to take measures to protect the public who were recreational users of the Tanque Verde Falls.

On May 15, 1987, the United States moved to dismiss the consolidated complaints for lack of subject matter jurisdiction contending that they were barred under the discretionary function exception of the FTCA. After a hearing, the court entered an order granting the government's motion to dismiss. Judgment was entered for the United States on August 10, 1987. This appeal was timely filed on September 24, 1987.

ISSUE

Whether the district court erred in finding that the discretionary function exemption of the FTCA precluded review of this case.

DISCUSSION

We review de novo the district court's determination that the discretionary function exception of the FTCA applies. West v. FAA, 830 F.2d 1044, 1046 (9th Cir. 1987), cert. denied, 485 U.S. 1007 (1988).

The United States enjoys immunity from all suits except to the extent that it consents to be sued. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). When the government does waive its sovereign immunity, "limitations and conditions upon which the government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman, 453 U.S. at 161 (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)).

The Tort Claims Act, 28 U.S.C. § 2674, provides, in relevant part:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

The discretionary function exemption, found in 28 U.S.C. § 2680(a), removes from district court jurisdiction, "any claim ... based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee whether or not the discretion involved be abused."

The Supreme Court has articulated the boundaries of the discretionary function exception in Dalehite v. United States, 346 U.S. 15 (1953), and in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984).

In Dalehite, an explosion of stored fertilizer in Texas resulted in hundreds of casualties. The decision to store the fertilizer was made by the United States War Department in an attempt to alleviate hunger in Germany, Japan and Korea following World War II. The Supreme Court held that the claims were barred by 28 U.S.C. § 2680(a). The Court, in discussing the rationale behind the discretionary function exception, explained that "it was not intended that the constitutionality of legislation, the legality of regulations, or the propriety of a discretionary administrative act, should be tested through the medium of a damage suit for tort." Dalehite, 346 U.S. at 27. The type of discretionary act to be exempted from suit is that "of the executive or the administrator to act according to one's judgment of the best course". Id. at 34. "Where there is room for policy judgment and decision there is discretion." Id. at 36. The Court concluded that the decisions to store the fertilizer were not subject to suit because they were "responsibly made at a planning rather than operational level". Id. at 42.

In Varig Airlines, the United States was sued by the insurer of a damaged aircraft and the owner of another aircraft who claimed that the Federal Aviation Administration ("FAA") had negligently inspected and improperly certified the two aircraft. The deficiencies in inspection led to in-flight fires in the two aircraft, with resulting crashes.

The Supreme Court refined the parameters of the type of act which qualifies as a discretionary function. Rather than examining the level of decision-making, "the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee--whatever his or her rank--are of the nature and quality that Congress intended to shield from tort liability." Varig Airlines, 467 U.S. at 813. The Court further held that the exception "plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals." Id. at 813-14. The underlying basis for the exception was that "Congress wished to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 814.

The Court held that " [w]hen an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary authority of the most basic kind." Varig Airlines, 467 U.S. at 819-20. Moreover, decisions of enforcement or supervision require the agency to balance its policy objectives "against such practical considerations as staffing and funding." Id. at 820. Thus, the discretionary function exception was born of necessity in order to avoid 'second guessing' of such policy-making decisions.

In the present case, appellants contend that the common law duty of a landowner to protect invitees from harm on one's property was violated and that the violation somehow places the tort outside the scope of the exception. The appellants suggest that because the Forest Service has "clear potential liability", the exception should not apply. This argument fails to recognize that negligence is simply not at issue. Unlike a landowner, the government can foreclose suit against itself by withdrawing the district court's jurisdiction. If discretion is involved, it does not matter whether or not the conduct would otherwise constitute a tort. "Negligence, however, is irrelevant to the discretionary function issue. The FTCA itself exempts discretionary functions 'whether or not the discretion involved was abused.' 28 U.S.C. § 2680(a)." Mitchell v. United States, 787 F.2d 466, 468 (9th Cir. 1986), cert. denied, 484 U.S. 856 (1987). The only inquiry is whether or not the act in question was discretionary.

Appellants claim that the district ranger had no discretion, but was mandated by the national and local policies to identify the Tanque Verde Falls area hazards to "the greatest degree possible." To support this proposition, Appellants rely on ARA Leisure Services v. United States, 831 F.2d 193 (9th Cir. 1987) for the proposition that negligent failure to perform express non-discretionary duties falls outside the exception. In ARA, a tour bus crashed off the road in Denali National Park. The road had been badly eroded and was not equipped with guardrails. We concluded that the decision to build the road without guardrails was not actionable because it was a discretionary decision based upon a Park Service policy to design "aesthetically pleasing" roads that "lie ... lightly upon the land utilizing natural support wherever possible." ARA, 831 F.2d at 195 (citation omitted).

However, we held actionable the failure to maintain the road in reasonably safe condition for the safety of the public in tour buses which were encouraged to travel the road. Specifically, we said that if the duty was non-discretionary and negligently performed, the exception does not apply. Quoting the Eighth Circuit in Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986), we stated that " [w]here the challenged governmental activity involves safety considerations under an established policy rather than the balancing of competing public policy considerations, the rationale for the exception falls away and the United States will be held responsible for the negligence of its employees." ARA, 831 F.2d at 195. That is the holding of ARA; a different situation obtains here.

In the case before us, the District Ranger did have discretion to determine flood warning procedure. FSM 2512.3 specifically invests in the line officer discretion to develop flood warning systems. While the overall policy of the Santa Catalina Ranger District was to identify and warn the public of hazards "to the greatest degree possible," that language refers to hazards identified within the action plan. The author of the plan, District Ranger Vernon Zarlingo, stated in his deposition that, in his judgment, he did not consider flash flooding as a hazard. As a result, flash floods were not identified as a hazard within the action plan.

The difficulty with the appellants' argument lies in their assumption that the rather vague policy statements of warning the public "to the greatest degree possible" constitute a guarantee of public protection, the failure to provide which constitutes actionable negligence. Were this so, there would be an end to the discretionary function exception. The policy statement is not a specific directive to place a warning sign at Tanque Verde Falls. Rather, it is a suggestion of intent to make the National Forest as safe as possible with the available resources. As this court noted in Martin v. United States, 546 F.2d 1355, 1360 (9th Cir. 1976), cert. denied, 432 U.S. 906 (1977), it was not the intention of Congress, in enacting the FTCA, to make the United States an insurer of the safety of all National Park visitors. In Martin, a visitor to Yellowstone National Park was attacked by a bear. The victim disregarded warnings which he had received. This court held, in reversing the district court, that the discretionary function exception precluded any cause of action because the Park Service had discretion regarding bear handling procedures within the park. The court stated that "to hold that failure to warn such individuals is actionable negligence is for Congress and not the courts." Id. at 1361.

In Schieler v. United States, 642 F. Supp. 1310 (E.D. Cal. 1986), the plaintiff was struck by lightning while standing on a rock in the Sequoia National Park. The plaintiff raised an argument similar to that of the appellants here contending that the failure to warn of the dangers of lightning strikes was outside the discretionary function exception and the United States had a duty as a landowner under California law to protect invitees.

The district court found those contentions to be without merit. In discussing whether the failure to warn was within the discretionary function exception, the district court, quoting Begay v. United States, 768 F.2d 1059, 1062 (9th Cir. 1985), stated that the exception applies to cases not involving strictly "regulatory action of an agency." Schieler, 642 F. Supp. at 1312. The court found that the National Park Service had received discretion from Congress as to the regulation, care and maintenance of National Parks and explained that " [w]hile posting of warning of lightning strikes is but one manner of warning, it clearly demonstrates that any type of warning would require the exercise of judgment and discretion by the park service personnel, which requires considerations impacting the social and economic policy of the agency." Id. at 1313. The court held the discretionary function exception was intended to protect against judicial scrutiny of the decision to place or failure to place warnings of safety hazards. Id.

The court rejected the argument that landowner duties would be outside the exception and held that "if the act complained of falls within the discretionary function exception, plaintiff's action is barred, and it is irrelevant that the government was negligent." Id.

CONCLUSION

The Schieler case is precisely the case before this court. If discretion was vested in the District Ranger, then the decision-making process involving the posting of warning signs at Tanque Verde Falls is outside the purview of the courts under the discretionary function exception. While this is undeniably a tragic incident, the FSM clearly grants discretion as to flood warnings in the National Forest areas to the "line officers." See FSM Sec. 2512.3. Because the decision not to post the flood warning falls within the discretionary function exception, the government is not subject to suit under the FTCA and the judgment of the district court must be AFFIRMED.