Kobi et al v. United States of America, No. 1:2015cv00478 - Document 30 (E.D. Cal. 2016)

Court Description: ORDER Granting Defendant's 22 Motion to Dismiss for Lack of Jurisdiction signed by District Judge Dale A. Drozd on 11/04/2016. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLAUDINE YVETTE KOBI, et al., 12 13 14 15 No. 1:15-cv-00478-DAD-BAM Plaintiffs, v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS UNITED STATES OF AMERICA, (Doc. No. 22.) Defendant. 16 17 This matter came before the court on October 18, 2016, for hearing of defendant’s motion 18 to dismiss pursuant to Federal Civil Procedure Rule 12(b)(1) for lack of subject matter 19 jurisdiction. (Doc. No. 22.) Attorney Justin Chou appeared on behalf of plaintiffs Claudine 20 Yvette Kobi and Alexandre Robert Kobi. Assistant United States Attorney Joseph Frueh 21 appeared on behalf of defendant United States. Having considered the parties’ briefs and oral 22 arguments, for the reasons stated below, defendant’s motion will be granted and plaintiffs’ 23 complaint will be dismissed. 24 25 FACTUAL BACKGROUND On March 26, 2015, plaintiffs Claudine Yvette Kobi and Alexandre Robert Kobi 26 commenced this action against defendant United States of America. (Doc. No. 1.) Plaintiffs 27 bring suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, alleging: 28 (i) negligent failure to maintain picnic tables at Yosemite National Park, (ii) negligent failure to 1 1 maintain trees in the national park, and (iii) loss of consortium. (Id. at 6–9, ¶¶ 21–38.) 2 In their complaint, plaintiffs allege the following. Claudine Kobi and Alexandre Kobi are 3 married and are citizens of Switzerland. (Doc. No. 1 at 2, ¶ 5.) On May 1, 2013, plaintiff 4 Claudine Kobi visited the Swinging Bridge Picnic Area in Yosemite National Park. (Id. at 1, ¶ 5 1.) The picnic area is a developed space within the national park that has a number of 6 improvements and additions, including fences and picnic tables. (Id. at 3, ¶ 10.) It is maintained 7 by the National Park Service (“NPS”), a federal agency. (Id. at 3, 6, ¶¶ 10, 22.) Upon arriving to 8 the Swinging Bridge Picnic Area, plaintiff Claudine Kobi sat approximately one hundred feet 9 from the area’s perimeter, at a table that had been moved away from its standard location. (Id. at 10 ¶ 12.) At 1:15 p.m., a large tree branch measuring about eighty four feet long broke from a 11 California Black Oak tree and fell on plaintiff Claudine Kobi. (Id. at 3–4, ¶ 13.) Plaintiff 12 Claudine Kobi ’s right leg and pelvis were crushed. (Id. at 1, ¶ 1.) She suffered severe fractures 13 as a result of the impact, and subsequently underwent multiple surgeries, experienced life- 14 threatening complications, and suffered other economic and non-economic damages. (Id. at 1, 4– 15 5, ¶¶ 1, 15–18.) Claudine Kobi continues to suffer disability and chronic pain. (Id. at 1, ¶ 1.) 16 Plaintiff Alexandre Kobi consequently has suffered loss of support, services, love, 17 companionship, affection, society, and other elements of consortium. (Id. at 5, ¶ 20.) 18 On September 6, 2016, defendant United States filed the motion to dismiss plaintiffs’ 19 complaint now pending before the court. (Doc. No. 22.) Plaintiffs filed their opposition on 20 September 22, 2016. (Doc. No. 26.) On October 11, 2016, defendant filed a reply. (Doc. No. 21 27.) 22 23 24 25 26 LEGAL STANDARDS I. Federal Civil Procedure Rule 12(b)(1) Defendant moves to dismiss plaintiffs’ complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(1). Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 27 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 28 claims alleged in the action. Federal district courts generally have subject matter jurisdiction over 2 1 civil cases through diversity jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28 2 U.S.C. § 1331. See Peralta v. Hispanic Bus., Inc., 419 F.3d 1068 (9th Cir. 2005). In a motion to 3 dismiss for lack of subject jurisdiction, a defendant may either attack the allegations of the 4 complaint or the existence of subject matter jurisdiction in fact. Thornhill Publ’g Co. v. Gen. Tel. 5 & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). 6 When a party brings a factual attack on subject matter jurisdiction, no presumption of 7 truthfulness attaches to the plaintiff’s allegations. See Thornhill Publ’g Co., 594 F.2d at 733. In 8 such instances, plaintiff thus has the burden of establishing that such jurisdiction does in fact 9 exist. Id. “[T]he district court is not restricted to the face of the pleadings, but may review any 10 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 11 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). 12 ANALYSIS 13 As indicated, defendant moves to dismiss plaintiffs’ complaint in its entirety, arguing that 14 their three claims fall within the discretionary function exception to the FTCA, 22 U.S.C. 15 §§1346(b), 2671–80. (Doc. No. 22 at 2.)1 The court analyzes defendant’s arguments below. 16 I. The FTCA and the Discretionary Function Exception “As a sovereign, the United States is immune from suit unless it waives such immunity.” 17 18 Chadd v. United States, 794 F.3d 1104, 1108 (9th Cir. 2015) (citing FDIC v. Meyer, 510 U.S. 19 471, 475 (1994)). The waiver of sovereign immunity is a prerequisite to federal court 20 jurisdiction. Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011); see also United States 21 v. Mitchell, 445 U.S. 535, 538 (1980). 22 The FTCA waives the government’s sovereign immunity for tort claims arising out of 23 negligent conduct of government employees acting within the scope of their employment. 24 Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008); see also United States v. 25 Sherwood, 312 U.S. 584, 586 (1941). Pursuant to the FTCA, the United States can thus be sued 26 1 27 28 The tragic events which took place in Yosemite National Park giving rise to this action have obviously had a 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 depriving this court of subject matter jurisdiction over the action. 3 1 “under circumstances where the United States, if a private person, would be liable to the claimant 2 in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. 3 § 1346(b)(1); Chadd, 494 F.3d at 1109. 4 The FTCA provides various exceptions to this broad waiver of sovereign immunity. One 5 such carve-out is the discretionary function exception, which provides immunity from suit for 6 “[a]ny claim based upon the exercise or performance or the failure to exercise or perform a 7 discretionary function or duty on the part of a federal agency or an employee of the Government, 8 whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The exception is 9 designed to “prevent judicial ‘second-guessing’ of legislative and administrative decisions 10 grounded in social, economic, and political policy through the medium of an action in tort.” 11 Chadd, 794 F.3d at 1108 (citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense 12 (Varig Airlines), 467 U.S. 797 (1984)). “The government bears the burden of proving that the 13 discretionary function exception applies.” Myers v. United States, 652 F.3d 1021, 1028 (9th Cir. 14 2011). 15 In Berkovitz v. United States, 486 U.S. 531, 536–37 (1988), the Supreme Court 16 established a two-step test for determining the applicability of the discretionary function 17 exception. Under that test, this court must first consider whether the challenged conduct is 18 “discretionary in nature,” that is, whether the actions “involve an ‘element of judgment or 19 choice.’” Terbush, 516 F.3d at 1129 (quoting United States v. Gaubert, 499 U.S. 315, 327 20 (1991)); see also Berkovitz, 486 U.S. at 536 (noting that the focus is on the nature of the conduct 21 rather than the status of the actor). The discretionary function exception will not apply if “a 22 federal statute, regulation, or policy specifically prescribes a course of action for an employee to 23 follow,” because “there can be no element of discretion when an employee has no rightful option 24 but to adhere to the directive.” Terbush, 516 F.3d at 1129; see also Berkovitz, 486 U.S. at 536. If 25 the Berkovitz test is satisfied at step one, the analysis proceeds to the second step. 26 The second step of the test requires the court to determine whether the discretion left to 27 the government “is of the kind that the discretionary function exception was designed to shield,” 28 that is, discretion rooted in “considerations of public policy.” Bailey v. United States, 623 F.3d 4 1 855, 860 (9th Cir. 2010); see also Myers, 652 F.3d at 1028. The key inquiry is whether the 2 decision giving rise to tort liability is “susceptible to a policy analysis.” Miller v. United States, 3 163 F.3d 591, 593 (9th Cir. 1998); see also Gaubert, 499 U.S. at 325 (emphasizing that the focus 4 is “on the nature of the actions taken” rather than on the agent’s subjective intent); Chadd, 794 5 F.3d at 1109 (noting that the exception is not confined to the policy or planning level). If the 6 relevant rule gives government employees discretion under Berkovitz at step one of the analysis, 7 there is “a strong presumption” that the authorized conduct involves consideration of public 8 policy under Berkovitz at step two of that analysis. See Chadd, 794 F.3d at 1109. A plaintiff can 9 nonetheless overcome this presumption by alleging facts supporting a finding that the challenged 10 conduct is not of the type that “can be said to be grounded in the policy of the regulatory regime.” 11 Gaubert, 499 U.S. at 324–25.2 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 It has been held that the challenged government decision need not actually have been grounded 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 Cir. 1998) (the challenged decision “need not be actually grounded in policy considerations”); see also Gibson v. United States, 809 F.3d 807, 813 (5th Cir. 2016) (the inquiry is “not whether the 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] 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 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 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 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 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 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 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 well-reasoned concurring opinion in Chadd, “the proper rule is this: In every case, the relevant decision does need to be ‘actually grounded in policy considerations,’ but, as a practical and evidentiary matter, the fact that a decision is ‘susceptible to a policy analysis’ creates a strong presumption that it was actually made for policy reasons, rebuttable only by persuasive evidence to the contrary.” Chadd, 794 F.3d at 1114; see 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 binding on this court. See Chadd, 794 F.3d at 1114. 5 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, the 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) (“those actions do not involve a weighing of policy considerations”). 7 Likewise, actions implementing prior policy decisions have been found to be not susceptible to 8 policy analysis, absent evidence to the contrary. Whisnant v. United States, 400 F.3d 1177, 1183 9 n.3 (9th Cir. 2005); Summers v. United States, 905 F.2d 1212, 1216 (9th Cir. 1990) (“[L]iability 10 for negligence may be imposed where, as here, the governmental decision involved is found not 11 to be grounded in economic, political, or social judgment.”); see also Gotha v. United States, 115 12 F.3d 176, 181–82 (3d Cir. 1997) (observing that the discretionary function exception is not meant 13 to apply to “mundane, administrative, garden-variety housekeeping problem[s]”); but cf. Cope v. 14 Scott, 45 F.3d 445, 449 (D.C. Cir. 1995) (cautioning against excessive focus on the distinction 15 between implementation or execution of policy decisions, and emphasizing that the critical 16 inquiry is “[w]hether the nature of the decision involved the exercise of policy judgment”). 17 Ultimately, if the challenged act or omission satisfies the two steps of the Berkovitz test, 18 the government is immune from suit based on that act or omission, and federal courts lack subject 19 matter jurisdiction over the action. Bailey, 623 F.3d at 860. This immunity exists even if the act 20 or omission in question constituted an abuse of discretion or was a wrong choice under the 21 circumstances. See 28 U.S.C. § 2680(a); Terbush, 516 3d. at 1129 (“Even if the decision is an 22 abuse of the discretion granted, the exception will apply.”) 23 II. Application of the Discretionary Function Exception to Plaintiffs’ Claims 24 a. Picnic Table Maintenance Claim 25 In moving to dismiss plaintiffs’ complaint, defendant United States argues that plaintiffs’ 26 negligence claim concerning maintenance of picnic tables in Yosemite National Park is barred by 27 the discretionary function exception. (Doc. No. 22-1 at 21.) Plaintiffs do not oppose defendant’s 28 motion to dismiss to the extent it is directed at their picnic table maintenance claim. (Doc. No. 26 6 1 at 7, n.1.) Accordingly the court grants defendant’s motion to dismiss this claim of plaintiffs. 2 b. Tree Maintenance Claim 3 Defendant United States argues that plaintiff’s negligence claim related to tree 4 maintenance in Yosemite Park is also barred by the discretionary function exception, and that this 5 court therefore lacks subject matter jurisdiction over this action. (Doc. No. 22-1 at 17.) 6 Defendant’s argument tracks the two-part test set out in Berkovitz. First, defendant argues that 7 tree management in national parks is a discretionary activity since the policies of the NPS with 8 respect to tree maintenance do not constitute specific, mandatory regulations. (Id.) Defendant 9 emphasizes that there was no rule in place requiring the NPS to inspect the tree that ultimately 10 injured plaintiff Claudine Kobi in order to determine whether that tree posed a particular level of 11 public danger, nor was there any rule requiring the NPS to mitigate any danger posed by that tree. 12 (Doc. No. 27 at 5.) Defendant United States also contends that NPS management of trees is 13 susceptible to policy analysis in that it implicates policy goals related to environmental 14 conservation, park visitor enjoyment and safety, and budgetary considerations. (Doc. No. 22-1 at 15 18–20.) In support of these arguments, defendant United States points to the NPS’s enabling 16 statute, the Organic Act, 39 Stat. 535 (Aug. 25, 1916), as well as to various NPS-issued policies, 17 such as the 2006 NPS Management Policies, the NPS Directive for the Pacific West Region, 18 PWR-062, and the 1993 NPS Guidelines for Managing Hazardous Trees. (Doc. Nos. 22-3 at 2– 19 13; 22-4 at 2–3; 22-5 at 2–12). The United States also cites to the following evidence: (i) the 20 declaration of Brian S. Mattos, the Park Forester at Yosemite National Park who coordinated the 21 tree-hazard management program at the park and who describes it as a flexible framework 22 granting the NPS discretion, (Doc. No. 22-2 at 2,22, 28, 33, 49, ¶¶ 1, 3); (ii) the deposition of 23 Mattos, (Doc. No. 22-16); and (iii) the deposition of Larry Castro, a NPS forestry supervisor, who 24 describes NPS tree hazard mitigation policies as requiring employees to rely on “knowledge and 25 experience,” (Doc. No. 22-17 at 10–14, 17–20). 26 Plaintiffs counter that the discretionary function exception does not bar their claim based 27 upon alleged negligent tree management. (Doc. No. 26 at 19–21.) First, plaintiffs argue that their 28 claim does not fail under the first step of the Berkovitz test because it does not challenge the NPS 7 1 hazard mitigation policies, but instead challenges the failure to implement existing tree 2 management policies. (Id. at 20–21.)3 Secondly, plaintiffs argue that even if the defendant’s 3 decisions concerning tree hazard management in the Swinging Bridge Picnic Area were 4 discretionary, these decisions were based on technical and scientific considerations, and were 5 therefore not susceptible to policy analysis under Berkovitz’s second step. (Id. at 21–23.) “Whether a challenged action falls within the discretionary function exception requires a 6 7 particularized analysis of the specific agency action challenged.” Young v. United States, 769 8 F.3d 1047, 1053 (9th Cir. 2014) (citing GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 9 (9th Cir. 2002)). Here, plaintiffs challenge the NPS’s inspection and management of the black 10 oak that injured plaintiff Claudine Kobi. (Doc. No. 1 at 6, ¶ 23.) In particular, plaintiffs argue 11 that the NPS assessment and response to risks created by that tree were unreasonable. (Id.) 12 Based on the two-part test set out in Berkovitz, however, the court must conclude that the 13 discretionary function exception precludes plaintiff’s claim for alleged negligent tree hazard 14 management. 15 First, the conduct challenged by plaintiffs in this action involved a matter of choice or 16 judgment by the NPS. In this regard, policies concerning tree hazard management in Yosemite 17 National Park come in three different forms: federal statutes, NPS-promulgated policies, and 18 Yosemite Annual Work plans. The authority of the NPS to manage national parks is generally 19 outlined in the Organic Act, 54 U.S.C. § 100101(a) (amending and replacing 16 U.S.C. § 1 20 (repealed 2014)), which grants the NPS a broad mandate “to conserve the scenery and the natural 21 and historic objects and the wild life therein and to provide for the enjoyment of the same in such 22 manner and by such means as will leave them unimpaired for the enjoyment of future 23 generations.” The act also authorizes the Secretary of the Interior to “provide for the destruction 24 of such animals and plant life as may be detrimental to the use of any System unit.” 54 U.S.C. § 25 100752. However, the statute does not articulate specific methods for implementing these broad 26 mandates but rather sets out only a general framework for national park management. Pursuant to 27 28 3 Plaintiffs’ counsel conceded at oral argument on the pending motion that the NPS was not subject to mandatory policies requiring any particular form of tree hazard management. 8 1 federal statutory grants of authority, the NPS thus “[has] discretion to design and implement a 2 policy for evaluating and removing trees.” Autery v. United States, 992 F.2d 1523, 1528 (11th 3 Cir. 1993) (finding that the Organic Act gave the NPS discretion to design and implement a 4 policy for evaluating and removing trees from national parks); see Chadd, 794 F.3d at 1110 5 (concluding that the Organic Act provided the NPS with discretion in deciding how to manage 6 public safety hazards presented by non-native animal species living in national parks); Young, 7 769 F.3d at 1054–55 (finding that the Organic Act gives the NPS discretion with respect to design 8 and construction of trail areas in national parks); see also Zumwalt v. United States, 928 F.2d 951, 9 954 (10th Cir. 1991) (finding that no federal or park-specific guidelines required any particular 10 protocol for managing hazards on park trails, and that hazard management was a discretionary 11 function as defined under Berkovitz).4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The facts of these cases are illuminating. In Chadd the surviving wife of a hiker killed in Olympic National Park by a mountain goat sued under the FTCA based on the actions or inaction of the NPS. 794 F.3d at 1107. Park officials learned as early as 2006 that the goat population within the park was displaying aggressive behavior toward humans. Id. Park officials had investigated this behavior, causing them to take actions including use of tracking collars, giving park visitors verbal and written warnings, and shooting paint balls and bean bags at the goats. Id. When reports of aggressive behavior by goats toward hikers continued to be received in 2009–10, officials considered other courses of action including possibly relocation of the animals. However, park officials had taken no further action by October 16, 2010, when a 370-pound male goat attacked and killed plaintiff’s husband. Id. at 1108. Against this factual background, the Ninth Circuit concluded that “[b]ecause the decision to use non-lethal methods to manage the goat was susceptible to policy analysis, the discretionary function exception applies.” Id. at 1114. Similarly in Autery the plaintiffs filed an FTCA suit to recover damages for injuries and a death suffered when a tree fell on a car in the Great Smokey Mountain National Park, claiming that park officials had failed to devise an appropriate tree hazard management plan and to properly inspect, identify and remove the hazardous trees which inflicted those injuries. 992 F.2d at 1524– 25. Nonetheless, after analyzing the applicable statutes, regulations and policies, the Eleventh Circuit concluded the decisions of park personnel fell within the discretionary function exception and that the federal courts lacked jurisdictions over the plaintiffs’ claims. Id. at 1531. In Zumwalt the Tenth Circuit addressed an FTCA claim that the NPS had failed to properly inspect and maintain a National Monument resulting in plaintiff’s injuries and came to the same conclusion—that the permissible exercise of policy judgment insulated the United States from liability under the discretionary function exception. 928 F.2d at 951–52, 956; see also Hatcher v. United States, 855 F. Supp. 2d 728, 732–33 (E.D. Tenn. 2012) (dismissing under the discretionary function exception where the plaintiff alleged that park personnel were negligent in connection with the maintenance of a tree that fell and struck him in the picnic area of a national park). 9 1 The NPS has promulgated various policies for tree management in national parks. NPS 2 Management Policies broadly set out the responsibilities of the agency and observe that plant 3 management may be necessary “to maintain human safety.” (Doc. No. 22-3 at 8.) However, 4 those policies do not specify a method for carrying out such management, stating only that 5 “discretionary management activities may be undertaken only to the extent that they will not 6 impair park resources and values.” (Id. at 11.) Directive PWR-062 also addresses management 7 of hazardous trees in the Pacific West Region, an area which includes Yosemite National Park. 8 (Doc. No. 22-4.) This directive states that “[s]urveys/inspections of tree hazards should be made 9 on a regular periodic basis,” and sets out various potential methods that the NPS may employ to 10 mitigate tree hazards. (Doc. No. 22-4 at 2–13.) PWR-062 does not, however, require that any 11 specific methodology be employed, providing only that “[t]he Park Superintendent retains 12 discretion to administer the [tree management] program with available park staff and financial 13 resources in the context of other legal requirements and other considerations.” (Id. at 5.) The 14 NPS’s 1993 Guidelines for Managing Hazardous Trees provide further guidance on managing 15 dangerous tree conditions. But those guidelines specifically describe hazard reduction as a 16 “discretionary function for the park Superintendent,” and do not establish any concrete 17 requirements for NPS officials to follow. (Doc. No. 22-5 at 2–12.) 18 Altogether, these NPS policies and guidelines task the NPS with inspecting trees and 19 mitigating public safety hazards, but do not establish any rules about when to carry out such 20 inspections, what methodology must be employed, or what kinds of mitigation tactics are to be 21 deployed. Finally, NPS tree management policies have been found to grant discretion in 22 identifying and removing hazardous trees. See Valdez v. United States, 56 F.3d 1177, 1179–80 23 (9th Cir. 1995) (finding that NPS management guidelines “can be considered mandatory only in 24 the larger sense that they set forth broad policy goals attainable only by the exercise of 25 discretionary decisions”); see also Childers v. United States, 40 F.3d 973, 975–76 (9th Cir. 1994) 26 (finding, in the context of an action involving the death of an eleven-year-old boy as the result of 27 a winter hiking accident in Yellowstone National Park, that both federal law and NPS regulations 28 and guidelines leave decisions concerning national park trail maintenance “either explicitly or 10 1 2 implicitly, in the hands of NPS rangers”). The Yosemite Annual Work Plans set out specific tasks for the NPS to accomplish 3 throughout the course of each year within the national park, detailing a schedule for identifying 4 and removing tree hazards in particular locations. (Doc. No. 22-7.) While the 2013 Annual 5 Work Plan indicated that the NPS would carry out annual tree hazard mitigation in Valley Picnic 6 Areas during February of that year, it provided no further information as to the form those 7 mitigation efforts should or would take. (Doc. No. 22-7 at 6.) The Yosemite Work Plan therefore 8 fails to impose any mandatory requirements on the NPS as to management of tree hazards. 9 Having found no specific tree hazard management protocol mandated by federal statute, NPS 10 policy, or Yosemite National Park policy, the court must conclude that the government has 11 satisfied the first step of the Berkovitz test for application of the discretionary function exception. 12 Moving to the second step of the test, the court concludes that the specific tree 13 management decisions challenged by plaintiffs in their claim are also susceptible to policy 14 analysis. Because the court has concluded that the NPS decisions concerning tree hazard 15 management are discretionary, there is “a strong presumption” that the specific conduct 16 challenged by plaintiffs involved a weighing of public policy considerations. See Chadd, 794 17 F.3d at 1109. Defendant has also provided abundant evidence indicating that decisions about 18 where, when, and how to manage dangers posed by trees within Yosemite National Park 19 implicated larger concerns—economic considerations, employee safety concerns, cultural 20 considerations, and environmental interests. The NPS Policies of 2006, Directive PWR-062, and 21 the statements and depositions of NPS employees all reference the medley of policy 22 considerations implicated in tree hazard management decisions of the NPS. 23 Plaintiffs have not offered evidence rebutting the presumption that the NPS exercised the 24 discretion granted to them under the relevant federal statutes and NPS guidelines. See Chadd, 25 794 F.3d at 1109. In arguing that defendant’s actions did not implicate policy judgments because 26 they merely involved implementation of existing policy decisions, plaintiffs ignore the recognized 27 principle that “implementation of a government policy is shielded where the implementation itself 28 implicates policy concerns.” Whisnant, 400 F.3d at 1183 n.3; see also Chadd, 794 F.3d at 1112; 11 1 Camozzi v. Roland/Miller and Hope Consulting Group, 866 F.2d 287, 292 (9th Cir. 1989) 2 (“policy judgments made by officials in implementing the agency’s policies and programs” are 3 subject to the discretionary function exception) (citing McMichael v. United States, 751 F.2d 303 4 (8th Cir. 1985)); cf. Soldano v. United States, 453 F.3d 1140, 1150 (9th Cir. 2006) (concluding 5 that the discretionary function exception did not apply because there was “no reason” justifying 6 the government’s failure to implement a safety measure). 7 Plaintiffs have presented no evidence suggesting that the failure to address the alleged 8 hazard occurred after the NPS decided to inspect the particular tree that harmed plaintiff, or after 9 the NPS decided to mitigate any specific hazard posed by the tree. Thus, this case is 10 distinguishable from actions where the evidence before the court affirmatively demonstrates that 11 government actors did not consider policy objectives when implementing policy decisions. See 12 Whisnant, 400 F.3d at 1183 (finding that failure to control the accumulation of toxic mold on a 13 naval base commissary was not a decision susceptible to policy analysis because the government 14 had failed to implement safety decisions after being warned of the specific unsafe conditions 15 challenged by plaintiff); ARA Leisure Services v. United States, 832 F.2d 193, 195 (9th Cir. 1987) 16 (finding that the NPS’s failure to carry out road maintenance work was not susceptible to policy 17 analysis given that the NPS had already made policy decisions specifically requiring park roads to 18 “be firm, and of uniform cross section”); Madison v. United States, 679 F.2d 736, 741 (8th Cir. 19 1982) (finding that once the government made the discretionary decision to carry out certain 20 safety protocols related to explosives manufacturing, the “simple failure to fulfill those 21 obligations was not within the [discretionary function] exception”); cf. Varig, 467 U.S. at 820 22 (finding that Federal Aviation Administration agents’ decision to not inspect a particular aircraft 23 for safety issues was susceptible to policy analysis because the conduct was “within the range of 24 choice accorded by federal policy and law”); Childers, 40 F.3d at 976 (finding that NPS decisions 25 concerning maintenance of park trails required them “to balance access with safety, and take into 26 account conservation and resources in designing area plans and making individual trail 27 determinations). 28 ///// 12 1 There is also no evidence before the court suggesting that the challenged government 2 decisions were based on objective, scientific standards which would make them not susceptible to 3 policy analysis. Plaintiffs here challenge NPS actions concerning identification and mitigation of 4 tree hazards, conduct reliant on judgment and consideration of NPS agents. This is not a case 5 where the government conduct was rooted in application of a precise scientific formula, such that 6 only one course of action was appropriate under the circumstances. See In re Glacier Bay, 71 7 F.3d 1447, 1453 (9th Cir. 1995) (citation omitted) (finding that the discretionary function 8 exception did not apply because plaintiff’s claims challenged “[d]ecisions involving the 9 application of objective scientific standards”); Kennewick Irrigation Dist., 880 F.2d at 1030 10 (“[D]ecisions involving ‘the application of objective scientific standards’—such as how much 11 dynamite to use to produce a refraction—are not insulated by the discretionary function 12 exception.”). Although plaintiffs argue that identifying defects and weaknesses in trees requires 13 technical judgment, “[t]he fact that [defendant’s] decision involved technical or professional 14 judgment at the operational level is not enough to remove his [or her] decision from the 15 protection of the discretionary function exception.” Herden v. United States, 729 F.3d 1042, 16 1048 (8th Cir. 2013). 17 For these reasons the court concludes that the government has also satisfied the second 18 part of the Berkovitz test with respect to plaintiffs’ negligent tree maintenance claim, and that the 19 discretionary function exception therefore applies. See Valdez, 56 F.3d at 1179–80 (concluding 20 that NPS decisions concerning national park trail maintenance “clearly implicate[] a choice 21 between the competing policy considerations of maximizing access to and preservation of natural 22 resources versus the need to minimize potential safety hazards”). 23 24 Defendant’s motion to dismiss plaintiffs’ negligent tree maintenance claim for lack of subject matter jurisdiction will therefore be granted. 25 c. Loss of Consortium Claim 26 Having concluded that plaintiffs cannot maintain the underlying negligence claims against 27 defendant, plaintiffs’ claim for loss of consortium is thereby also subject to dismissal. See 28 Calatayud v. California, 18 Cal. 4th 1057, 1060 n.4 (1998) (concluding that a loss of consortium 13 1 is a derivative claim and necessarily fails upon dismissal of the underlying claim); see also 2 Ferrari v. Natural Partners, Inc., No. 15-CV-04787-LHK, 2016 WL 4440242, at *7 (N.D. Cal. 3 Aug. 23, 2016) (same). 4 5 CONCLUSION For all of the reasons set forth above: 6 1. Defendant’s motion to dismiss (Doc. No. 22) is granted; 7 2. This action is dismissed; 8 3. All previously scheduled dates in this action are vacated; and 9 4. The Clerk of the Court is directed to close this action. 10 11 12 IT IS SO ORDERED. Dated: November 4, 2016 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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