morning my name's kyle israel wall from of israel and garrity in phoenix arizona may please the court this is a case about an exception to the federal tort claims act that the government has brought the discretionary function exception doesn't apply for two reasons number one there's a mandatory law that provides that action should be taken in a certain circumstance which takes it out of the realm of discretion are you talking about the regulation thirty six  correct that's correct you tell me why that mandates it as opposed to discretion because as i read it is says if the responsibility of a responsible official determines whether you can use it is your position that that determination was made that the motor vehicle is directly causing or will directly cause considerable adverse effects yes your honor that is the one portion that allows for discretion the discretion is with respect to the dangerousness and months weeks before this occurred the forest service was notified in text and with photographs of boulders rolling down on to mt elden and the th official who received that testified in this case that there was no clear indication of an imminent danger of more boulders rolling down whether in the record there's a finding our determination by the responsible official i'm not sure who that is the responsible official that motor vehicle use will directly cause considerable adverse effects so what what finding are you relying on i'm relying on his testimony that preceded that which was on cross which is on the examiner by his counsel st of all that of the warning which i just spoke of nd of all of his indication that if that is the case that is an imminent danger of his you're saying his answer to a hypothetical question which despite the fact that he said there was no imminent danger based on his own review isn't enough is that your position yes i'm saying he contradicted himself effectively because he had right in front of him the exact situation that he said is an imminent danger and later testified upon my examination that in a case of an imminent danger even not even talking about the danger to individuals in their use of the road on the one hand and the benefits for recreation or for commerce of letting people  traverse your honor with respect to the statute the statute does not provide for that balancing the statute says if considerable i mean regulation or his or statute that we're now looking at sorry thirty six doesn't that involve some bouncing i mean there's always going to be some risk any time your next storm out well if we want it you can have rock falls sure and in this case there was a heavy rain and there it was boulders that had rolled down and they were told there would be only so what you can you can you could probably go drive down a forest service road almost anywhere and see boulders on the side of the road if it's in a mountainous area this was a specifically noted acute danger in this area where the users who provided photographic levitt and said the next rainfall this is going to happen again which it did but i'll get back to your original question which was does the regulation allow for the balancing of the discretionary function level policy analyses that we see in the cases which are political social and economic this the regulation itself states considerable adverse conditions you shall close the road it does not say after reviewing other policies or other protocols and you have the just me or the right of mike my question was whether the balance comes in in designing what's considerable yes i would think so and so both both sides have used the term imminent danger as a kind of a better explanation of what considerable adverse effect is and we have a forest official saying boulders in the road is in imminent danger of more rolling down in that area so we have someone admitting that situation which we had here is an imminent danger of a given that he said even he went on to say he didn't see any imminent danger on road five hundred and fifty seven in this particular situation and given that we're not allowed to nd guess the determination of federal agents even when they're wrong i guess i still am asking where there's a specific requirement that he should have he had he was  make are required to make a different finding st of all i don't think he should be allowed to contradict his own testimony when he's already stated that it was in this never he never said that it was an imminent danger in that particular road and in fact has he said before when he looked at the photographic evidence and after when he actually does it in the road so he was completely consistent about his assessment of whether there was considerable adverse effect on that particular road based on the evidence before him well i understand that's what he said afterwards but i'll go ahead and move on it by the way the rest of this the regulation says you shall immediately close the road so the question is whether or not that with that regulation was triggered and i understand the questions and i appreciate those and i'll move on to the nd reason why that unless there's more quel i just just to close the loop on this st one or i think it's still the st one is so we get some e mails and e mail photo the night before he says i'll go check it out tomorrow is my understanding of the record right that's actually not true ok a month or more before he gets a multi page e mail with multiple photos i understand that i mean we that's what we've been discussing now but as i understand it there was another one specific to this incident where he got he received photos the night before he says i'll go check it out in the morning is when your client got injured then the forest service shows up and they immediately closed the road after the injury all that's correct except for the photos part they didn't receive photos i see they just received the e mail that the right on the th that's ok ok so is it your position that there was any deterrent you made the argument for why you think there was a determination made earlier a month prior and by the way if there was a determination made a month prior wouldn't the intervening months of change that or and or is your position no the determination was made and that negligence still stands the regulation requires that you immediately close the road until the danger is mitigated and prevented from happening again they could have my our position is that when he was asked whether there is any clear whether he was given a notice of the situation obviously he agreed to receive the notice and that and the photos and then he was asked if there was any better example of an imminent danger to more boulders rolling down the road into the road than the fact that there are already boulders in the road he indicated yes that was the best indication excerpt a record for thirty two there was a month prior so is different circumstance and that's what i'm troubled with his the weight of your argument is that any time the forest service receives a complaint about something being potentially harmful the binds them for the forseeable future so how do you how do you navigate that know if they figure if they determine that this is a situation that provides or risks further adverse effects or imminent danger which is a situation that mr mone admitted is this type of situation then the regulation says close the road and you know you've taken care of it and stop it from happening again that's a negligence question whether or not they did that or not the question of whether they had the right to act or not act whether this required them to act is the question before us and so finally with five seconds to go but maybe we'll indulge you with a little bit tense to my question or i guess maybe you want to reserve but in any event  ask the question which is again even if the determination was made a month prior and they had cleared that danger don't we have would we have still even if we were to credit that would we still have to find some causation to the boulders that fell down month earlier which included the boulders that were uphill and ultimately rolled down and caused the injury we wouldn't be here today i'm not talking about the night before you use your time we'll see if the panel has any questions after hearing from opposing  there is no way of social or economic policy when the record proves otherwise testimony from three forest service officials demonstrates that they weighed social and economic policy when they were notified of an issue in july which was actually two months before the september accident do you do you think they are they have to show that they actually weighed these issues i thought it our decision in the morales we said that the actions just have to be susceptible to policy analysis yes your honor susceptibility of policy analysis is part of the test under the discretionary function exception but the record in this case clearly indicates that  all three forest service officials who looked at this issue determined that there would be a social impact on recreational users bikers campers hunters and also an economic impact on the cellphone tower businesses at the top of melton who service tens of thousands of cellphone users so those determinations were made whether or not you get to the issue whether it's the sceptical of policy analysis to that one seems to specifically incorporate these other calculations and findings and i guess going back to judge gould's initial question would you think that those findings are found similarly found in risk is me the factors are found in the regulation twenty two point five two or does that just are those factors inherent in the discretionary function tast they are inherent within the function so regardless of what the regulation says even if the regulation doesn't give you any specific right to consider these other factors the discretionary function task which requires that the court take consideration of them not only is part of the discretionary function test whether social economic and political considerations are considered but in this case we have policies and procedures the regulations to the forest service manual that specifically tell them to weigh social environmental and economic impacts but the regulations as that if the responsible of official makes a specify determination th to close that road he would have the discretion judge making that determination right i said if a determination were made so so the responsible officials are not sure who that is makes a determination and  lower level employees would be required to immediately close that road right that that would include a way well your honor we believe that the c f r that is cited doesn't actually apply to th circumstance because what it is saying is if the responsible for a service official makes a determination that motor vehicle use is causing a considerable adverse effect that is when motor vehicle use you don't just decide that in a vacuum if you've got bad road conditions i guess the problem i have with your argument is say you've got bowlers that are ready to fall everybody goes out and says oh my gosh this is really dangerous and then you go back and say what jesus memorial day weekend we're going to make people so upset if we don't keep these roads open and then they fall and they hurt somebody wouldn't you then be liable for not closing the road because you or would you come into court and say hey it was it was a really high use period we could make people unhappy we needed to keep it open for other factors and i appreciate your honor's hypothetical but the applicable question here is whether there are facts that establish that the decision was not based on social economic or political policy but under my hypothetical it would be based on social policies when it seems to me that's more of a negligence issue  they exercise reasonable care and that goes well that's what they're arguing here bernie that's what burns is arguing here is that you were negligent in not in not closing the road we understand that is the argument the argument being negligence but we don't reach that issue because we are here considering the discretionary function exception and whether there are facts that suggest that social and economic and political policy were not considered and in this case they certainly were considered i'm looking at the chad case usa dealing with a problematic goat that unfortunately killed someone and in that matter the whole issue of what actions should have been taken go more to the issue of negligence as opposed to the issue before the court at that time whether there was a lack of evidence of social and economic considerations which occurred both in the cha case and in this matter the the issue we believe is that there was also no imminent danger presented by the boulders on the side of the road in july because that seems to be i mean no one was injured so i would support your conclusion with that it does support our conclusion and not only that judge the boulders were removed in july and so there was no notice for a two month period of any imminent danger and then when the subsequent rockfall occurred in september the forest service did not have notice of the that until seventy and the next business day and so there is no evaluation that occurred by mike or other forest service officials until around the time that the accident occurred by that time  when notice was finally given to the forest service the accident had already happened and it happened by the way because of the manipulation of those boulders by the appellant and his work crew thus seemingly triggering the nd ball i was struck by that that that he he sort of tried to get into some self help by gas and and i wonder what role that played is that unusual for a crew to go out there and try and rip private party to try and do that on their own we believe it's unusual and inappropriate they had no special training they had no special equipment what they try to do is hook a rope to the bumper of one of their vehicles and try to move the boulder out of the way and we believe that possibly triggered the rd rock fall of the record was never developed on that point because we were dealing with this issue what if you'd received the e mail and this had happened and we would say that under the discretionary function exception if it is sceptical of policy analysis social and economic and environmental impacts then it would still not bear liability be immunised can you give me an example of a decision that the forest service would make that isn't susceptible to those considerations i suppose one issue could be once an accident occurs as occurred in this matter when they have to preserve evidence or preserve the scene that is when it is appropriate to close the road for that sort of protection but that's a changed circumstances but you're so you're basically asking for as you know there has to be one injury before  point in the forest and they are asked to evaluate it there's no more basic function for the forest service officials to do than to that he weighed it and weigh the interests weigh whether it's going to impact campers recreational users and the businesses at the top of the cliff in an emergency situation such as occurred afterwards when they want to preserve evidence that might be an indication that might be a time where they can take action immediately but in this matter your honor and i you see that i'm virtually out of time if not out of time that was a change circumstance and under the case law the chance the case that i'm quite familiar with and then the case from the  th circuit district court you don't ignore the prior weighing of social and economic factors once you make a change to the condition ok you're over time thank you very much ok we have any questions for the government says they weighed all of these policies look at mr mones deposition which we've cited in the record he said st under my questions they did none of that in july they didn't weigh anything that in look at anything in terms of policy computing policies he later on leading questions said yes we did this we did this we did this another contradiction of his they said the bowlders we removed in july those were removed off the road not the ones up hill that were warned of pending falling on the next rain is what they were told those were not removed that's what rolled over on supper and they say mr burns caused the boulder to roll i've heard this multiple times there's nothing in the record or in the evidence that says that nothing when stated in multiple levels with no citation to the record look at the duke versus department of agriculture case camper was brain injured by rolling boulder where they were agriculture department agriculture was specifically warned of this happening in the future they argue general policies for service manual without an acute danger analysis and the court said no that doesn't rise to the level of the discretionary function exception policy analysis there was no good reason