i think we're ready to proceed please identify yourself counsel and we'll start the fifteen minutes good morning your honour's my name is randall weiner i'd like to reserve five minutes for rebuttal and i'm aware that's my responsibility to keep track of that i am your honour's i'm counsel for logan and basketball who lost their eighteen year old daughter when the vehicle she was driving and drove down what appeared to be the continuation of forest service road for fifty six point one day over an embankment and down a twenty foot deep abandoned mine shaft that the forest service was aware of in fact the magistrate found that the forest service acted in a willful fashion in failing to warn the question for the court today is whether the discretionary function exception applies to shield the forest service from potential liability under the federal tort claim act the berkovitz test is the test that's applied to determine if the discretionary function test applies to berkovitz test has two parts a part that requires that the conduct not be mandatory and the part that says that the conduct must be based on public policy considerations but not just any public policy considerations the action that's complained of in our case and non action the failure to warn must be grounded in the challenge decision the decision not to warn as i said not only implicates not only does not implicate public policy considerations but that the decision not to warn was never embedded in any of the policies that the forest service disclosed in this case their forest service disclosed a policy the situation is quite similar to the case of jukes versus the department of agriculture where the court found that there was a quote specific hazard distinct from other hazards generic to a national forest and the court went on to say if the failure to post warning signs for falling rocks this was a falling rock case and he'll national forest if the failure to post warning signs for falling rocks is sound implicate policy concerns this approach would quote of this rate the nd step of the berkovitz and galper test and would allow the exception to swallow the f t c a sweeping waiver of sovereign immunity  we've distilled the case is your honor and and we believe that there is a bright line test for what makes a specific hazard st of all our art our judge called it a specific hazard but what does that mean exactly and we believe that the only way to make sense of the disparate cases in the th circuit on sale or failure to warn for hazards on public lands is  and a specific hazard is one where that involves a popular area that too draws the public to it and three has the illusion of safety and four where there yes we raised the specific hazard in the district court and you know judge mathis and you have any questions  that the failure to warn was based on policy considerations i can meet that presumption so most of the cases in the circuit do not state that a presumption has to be overcome if there is a mandatory duty all say that the reason our case is so strong is simply because there isn't no public policy that would prevent warning signs as i was saying before vs us which involved a dangerous swimming hole and smith v us which involved a child falling into thermal pools in yellowstone national park in each of those cases th circuit decided that a warning was required and there was no public policy that would prevent the kind of warning and in fact as i said i would have this arrayed basically the nd step on the government side involved a back country climbing area where regulations were to be kept to a minimum and in those cases there was a policy to prevent that would prevent warnings due to aesthetic reasons and you know your honors in new mexico judge carson and judge hearts one rd of the land in new mexico as you're probably aware is federal land and judge mathis and you're only too aware of the fact that in utah seventy five percent of the land is public land and so there is this tension between the federal government wanting to have control and and immuni decisions that makes on its property versus private parties who want the same rights on public lands that they have on private lands and could i could i just jump in and ask you test no your honor we are proposing this price line test for the th circuit to apply because from our standpoint it's the only way to make sense of these cases where there is a specific hazard the courts have said a warning is required and where there is not a spics specific hazard the courts generally have not so no i can't point you to a specific case severe drop off on the other side of the embankment when you have the same position as far as duty to warn let's run through the analysis if we can in your situation if the  question is is it a popular area so let's assume it is on your hypothetical people drawn to the hazard yes there is a road that takes folks down as that might lead to a specific hazard are people actually is there an illusion of safety is with the public think that this road was actually going to lead to a hazard or not and and finally were there any warning signs so i think under your analysis under your hypothetical yes this would be a specific hazard and there would be a duty to warn don't you think that safety this was an area that was quite popular your honor for camping there the magistrate found that there were a number of campsites that were in use that night that the road was active that at least the alley around the road was active even if three am in the morning when this accident occurred so i know this was this was a popular area folks don't know the distinction and read the regulations about category two versus category one i think the child that fell through the pools in yellowstone ever there were warnings in yellowstone everyone knew that you get out of your car you're you're risking  a bit nonetheless there was a trail that led back to the pools in the th circuit decided that that was one place in yellowstone there that required a warning this is a similar case we have a twenty foot abandoned mine shaft in a road really of road that leads to all intents and purposes right over the embankment down into the mine shaft the other main part of the road had tree limbs that were five and four feet high and it was narrower so all intents and purposes my my client's daughter was on the right road and a simple warning sign you know when do they set a warning sign is inexpensive so the forest service has no reason not to put up an inexpensive warning sign if they know the hazard exists and in this case the forest service was well aware that this hazard exist for years i'd like to reserve the rest of my time if i could for  correctly held that the discretionary function protects the government for liability based on the contact plaintiff have alleged here and managing the national forest system the forest service must address on a ray of challenges deploying very limited resources the agency must balance a variety of competing policy considerations including the interest in providing the public with access to the forests natural features and promoting visitors safety and convenien the district court and the magistrate judge carefully applied the supreme court's well established to step test of the discretionary function exception concluding that the conduct here squarely falls within that exception now as the court recognized in questioning opposing counsel the forest service manages millions of acres of land and implicating over eleven thousand dollars mines in this particular national forest now there is emphasizing that every time the forest service goes to inspect any particular mines for mediate it additional mines are uncovered and other additional hazards plaintiffs alleged conduct here doesn't simply implicate one side for this particular mine but thousands of signs for thousands of hazards in the national forest to forest service decision whether and how to place warning signs and whether and how to remediate those hazards is squarely protected by the discretionary function exception as this court has held multiple times with that i open myself to questions from the court ok thank you this is j charts well mr weiner was focusing on specifics about this particular hazard that there were it was a well traveled area  a service knew it was well traveled far service knew this was a very dangerous place drove off the wrong direction is very hazardous and the forest service knew that what would look like the continuation of the road was not that was that was the path to disaster how do you respond to that when the forest service knows now it was undisputed in district court that the pathway that led to the mine shaft was not on the forest road that was instead a garden path if you will that led to the mine shaft claim to own you're in the back area you take the wrong turn because it actually looks like the main road maybe it wasn't officially the forest road but what about the apparent sure  see very little mean indeed the forest service determines that this particular road would be maintained a level two as just carson was noting that drivers should not have any expectation that these roads are maintained with any level of regularity i can point you to our appendix page joint appendix pages roughly one hundred and forty two to one hundred and forty five in which several pictures of examples of level two both are given and which the roads knowledge here that one driving along this level two road ordinarily think that the road to the mine shaft disasters was the continuation of the far east  service knew that the mine existed that's not to say that it's awareness of the mind required placing a warning sign as multiple declarations in this case mentioned there were multiple policy considerations that issue whether all in that case the court said and i'm just going to quote briefly the decision not to place additional warnings on the trail could not be divorced from the policy decision to maintain the area in its wilderness state that's the end of the quote my question is did the forest service here make a policy decision to maintain the area around the abandoned mine shaft in its natural  state yes that's my understanding there are part of that decision to place warning signs throughout the national forest would have been tied to maintaining the natural beauty of the surrounding area now we acknowledge  mentions that the declarations we submitted in this case do not explicitly invert to the fact that the decision to place warning signs with tied to maintaining a wild state but that's not to say that that was part of the decision making process here at you know as we mentioned that there are untold thousands of mines throughout the national forest system to place warning signs next to each of them would change the character of the national forest themselves in this particular area it was classified as what's called a dispersed recreation area which would approximate a much more wild area of the national forest for natural hazards to have warning signs next to them throughout these areas completely distort the character and quality of those places that have been maintained for the public well let me just follow up i'm still trying to understand why abating the hazard or posting warning signs itself you know it was not entirely natural but because it was abandoned for some untold number of years as had begun to revert to the natural state of the forest and even by playing to some theory it was not obvious that the mine shaft was different from the national forest such that you wouldn't have known that the house that was there so placing the warning would change the character of that site such that it would be obviously apparent that there was some manmade activity in that area  that of course did not go to say that other policy considerations underscored underlie the forest service decision making in this respect the both the economic and policy and political and social policy considerations that the forest service very carefully considered as to how to manage the forests in this area i take it that sort of underlying this is an argument that  even if the forest service made a bad policy choice or was negligent in not posting a sign given what it knew that doesn't prevent the discretionary function exception from applying it is  that is that correct is that an accurate statement that's absolutely correct your honor it is not a question of whether it was reasonable for the forest service to act in a particular way but as the supreme court has explained repeatedly most  more like a road maintenance case and that today the argument shifting more to discussing the hazardous nature of the mine shaft itself do you do you view it like that honor and the main reason that has taken place is that places have proposed evolving theories throughout this litigation and the government has responded to those theories as we are the defendant here  on the agencies decision as to how to classify particular roads and how those roads are maintained for the bulk of the evidence that we provide present in district court had to do with the road maintenance itself and when it became clear that that was a faulty theory plaintiff was there anything in the record that speaks to how excessive all the other one thousand three hundred mine shafts in the forest are i mean are presumably someone at some time had rose to these old you have any knowledge of what the record says about that no your honor i don't believe that information is in the in the record i will only correct factual premise in your question which  taking place at the mine one would expect there to be vehicle traffic that would create some sort of pathway ok and then the forest service manual if we look at the district record before the district  not located in that database we would have obviously presented that information to the district court for consideration of whether these manuals apply the sections of the manual apply to this area but also i will refer the court to the if all that's required to meet the nd prong of the berkovitz test is an after the fact reference to policies that don't addressed warnings for specific hazards no danger no matter how great would fall outside the reach of the discretionary function exception that is just not the law in this circuit this is not a wilderness area as the questioning tried to bring out the area around gold hill in the arapahoe national forest in the hills of boulder is littered with roads littered with campsite and there is no policy to keep the aesthetics the way they are like they are in the kind and the zoom walled in the johnson cases this is an area that that would not be tarnished in the slightest with a warning sign for this specific hazard and remember this is not like the s of thousands of other abandoned mine shaft the magistrate here found that the mine shaft was not just a potential hazard but presented a high probability of harm to those who use for fifty six point one day and i'll finish by saying that although we didn't point to the specific sections of the forest service manual the forest service manual in general constrains the forest service and are pointing to new sections new argument on a claim that was properly presented th