function exemption to the tort claims act really analyzed it as a failure of design and analyze the case in terms of the design of the liberty when campground we maintain and i think that the correct analysis is there is really a safety case which involves the failure to maintain a use path that is a path that was not designed by the army corps of engineers differ from for example i think they are eight where the forest service the way the government built the road and then fail to maintain it so here you've got a used path which wasn't built by the government and it just grew so it's a little different in the thing that makes it it strikes me as being very difficult here is the extent to yeah and there was a roge and on that on that side of the road that's what they fail to maintain and that's similar to what happened here well no it isn't because the government and the government it may be that you're correct ultimately but here i'm just trying to focus  the but they did have an obligation which certainly didn't involve any social political economic judgment to maintain the safety of the visitors to a class a campground it's likely not discretionary in your view to say dangerous it's not no it's not discretionary and even if it is your discretionary you are i think an argument can be made there certainly has been one made in this case that it was a discretionary act but then the second issue bec discretionary act which furthers or has some record based basis in a social political or economic policy the obligation to do  or that the fact that the government did nothing about this problem which was a let's call it an attractive nuisance because it and walking down that path in the dark  and seeing campgrounds across the way there was no warning whatsoever and if there was a thirty foot ravine at the end of that path the the best our government have to  coming into the campground they could have a fence they could have signed i don't know that they had to maintain it in the dark that that's how they solved the problem it was up to the government and we're not quarreling with that but the critical fact in this case is that the government did absolutely nothing when it regulation or the proviso that you mentioned talks about marked fences so i take it that they've already made the decision as to how critical in terms of the analysis now in terms of the decision of the district court is the fact that here the government did absolutely nothing and in doing absolutely nothing they were furthering any social policy or political or economic policy it's like if it's unlike the situation where two dancer judges rumors earlier question going hiking up in the back country and then falling off a waterfall s such as happened in the blackburn case that's that's completely different because they're the government had built a trail that the kid that fell off had strayed off the off the trail and was injured in this case you have something that developed later such as the mold in the wires and case which developed later such as the the lighthouse flight that went out later in the indian towing case  question of what is the problem the plaintiff talks about how this path is a problem how it's an attractive nuisance how it's a maintenance issue but this isn't the case where you have a path like the road in a r e leader that has crumbled away over has become by itself dangerous there is a judgment here about whether this even is dangerous is that a maintenance problem this path remember exists because people want to be there people want to be at this part of the park because it's it's a pretty area time it becomes clear that people using that site to which they have been given access are using that approach sheer drop  off the safety plan that the park is managed and contemplate that there will in fact be such kind of hazard and specifically identifies drop off as just such a hazard and not only that goes on to say what you do about it which is you market or you fence it now are you arguing that this does the government has no maintenance responsibility under those conditions no the argument is that there is that a judgement implicit in getting to that decision to mark or sign something which is that it's dangerous the judgment has been made the judgment has been made by the safety plan as i was reading the plain language that operating the park on the ground that there is an obligation to identify hazardous conditions it has made the judgement the drop offs are hazardous because that's given as one of the examples  i think it's pretty hard to say that a drop off onto a one to thirty foot gone wrong isn't the answer i i think that does require the judgement you honor i think that the specific language that rule which is presented as as a guideline not a hard and fast rule is that dangerous conditions will be identified then it throws out as an example drop off maintain a park in a safe there's a balance between where the public should be allowed access and of and where the public should be prevented access whether it be to provide to protect nature to protect the safety of the public there's a tension that it's explicit and these are the policies in the regulations between allowing the public as much access as possible and protecting natural resources you don't want people for example trampolining endangered plants or causing erosion or causing some kind of environmental damage and protecting safety so safety is clearly part of the calculus but what makes it a policy decision is that there is this tension that the corps contemplates that will go into these decisions it's it's frankly the same language that was in  where the issue is identical to this one where the plaintiff says that the government constructed trailer and did absolutely nothing at the end of it to warn that people weren't supposed to go climbing off the cliff the t specifically with the idea that people are going to use it because it's a beautiful place and they want to maximize public access to all parts that that camp or watch the path in relation to the campground  nine and one ten that sort of shows that the campground is a broad flat area cleared of trees at the edge of the western edge of the campground large field at the double side campground the path certainly did not lead to the center of the campground arguable whether it's you know it's if it leads into that flat area yeah definitely takes up right from the campground well i think it i think it would be a different calculus because  the fact that this path leads from the campground shows that it's a pact that the where the public wants it's an area of the public wants access to it so the calculus really has to do with access you allow the public access to that  enjoyment of nature well if you got a big drop off like at the end of a path it's hard for me to see how that policy applies well your honor that judgment has to be made whether that is dangerous and whether the path really would fool people into walking off a very obvious law court that in valdez quoting now from page eleven eighty about opinion a degree of judgement is required in order to determine which has require an explicit warning and which hazard speak from theirs for themselves that's the judgment that needs to be made and the path i'm sorry is that the end of the past the drop off well i think it would be misleading to say that the path leads to the drop off the path leads next to a drop off that it's a little bit like  didn't have noticed that would go on that continued on the path to other parks or they would your honor there's a there's a hillside on the other area on the other side and frankly i couldn't say i don't know i can't predict how she would treat that situation but i think it's noteworthy that there's never been an accident there before or since with the exception of this one which i have happened to occur in the middle of the night to make a difference there was a knife i think it does and i think it's ironic given the oberstein case which is you know both of the parties have discussed which has to do with the speed limits for a snowmobile common sense in how they deal with that with the wooded areas at night and i think that's frankly that that judgment that that has to be made here and it makes it a balancing of policy factors i see my time i and they literally go off the edge it was not a matter of making the wrong turn or or somehow you know missing something on their own they were led off the edge of a cliff wilson and i think she said that she had gone out there meditator or she had you know gone out to enjoy the scenery which which is certainly something that one would expect a ranger to do but it really wasn't her decision it was just the decision really was there her but they certainly didn't make a decision to do anything about it it's like if a log of foreign off the back of a truck into the road in the night off or ranger truck they would have turned around and they would have pulled that log out of the road because it created a