runway a rural one way and it's the united states bar service and it's their obligation to maintain that airport but the purposes of this you know we're focusing on the discretionary function exception which we think or wrong is whether or not the idaho recreational use actually whether or not it applies here whether or prevents the united states government or the forest service from being sued by allowing their place to land runway up in the mountains the issue here and for the purpose of this argument there are two prongs of a discretionary function test and we're going to focus on the st one forest service specifically set forth in their guidelines a pristine jury that they had to follow a decision made by the united states forest service was number one in the record  and seven where we outlined the forest service policy and procedure manual where they specifically say as the airport operations there are three controlling issues of why it is and this is section number two this is the important element close air fields in the bar's transportation system when a hazard to air perhaps exists unless the passenger is corrected immediately so by adopting one fix it under section two hundred and seventy seven three thousand five hundred and twenty one or shut the airport down there was no other options or there was no options to do a study there was no options to consider of operation in the case that is necessary that's nine hundred and sixty five quite some time ago so when they're designing the airport they identify a group of trees that are the end of the runway right where every pilot is going to have to  eighty under the regulation there is a presumed hazard and there is an actual known hazard identified by the n t s b once again the forest service does not exercise it's one of two choices that had to do it had to either shut the airport or cut the tree they did not either in one thousand and ninety five then what happens in two thousand and eleven again the forest service has a report this is this is in the record at the supplemental record at page one hundred and twenty seven and we  additional obstructions at both ends of the runways those are the very trees there's no question in this record at the obstructions are the same are not the same trees that were seen in sixty five and poised to crash into nin you're coming in from one direction or i mean in the other direction the trees are they are and again this is a government report this is the united states department of transportation the  our it was our this is a case where and certainly there are policy decisions that could be considered on any function of the government but this is not a policy decision this was the united states honor we have to look we have to look at what is this banter that the forest service running is it is running these airports there is a special relationship between rd option that they could even consider here just sitting back and say let's have another plane crash is not an alternative here and i i think for the purposes of what we're dealing with the air and the or arises exists unless the hazard is corrected immediately there is absolutely no record in this there's no evidence in this record of our service either shut down the airport or remove all the air fields in the forest service system we know that you would define a presumed hazard hazard or presume once they've been identified but you remove it it's presumed hazard you may hear the government argue here that there was a an inspection done at some point which they are now after the fact saying they considered to be the basis for  exists unless the hazard is correct immediately our position i want to just record agreed with is that the forest service manual critically doesn't define the term hazard as a result of this course law that question is presumption that it does mean the same thing then you won't could have said for example we accept all the definitions in the f a a rex it doesn't say that either so what you're left with is discretion and that's that's just the section three would be basically meaningless because under places you know there's no debt there's no need to report because the forest service has to close the airfield or move the trees immediately don't have any response of that whatsoever and i think nd of all the district court pointed out that these regulations have to be in red light of the context that's involved here what we have is the context involves back country course it's undisputed in the record that the forest service relied on the idaho department of transportation to inspect these air strips and it's also undisputed that the department did inspect these  strips every three years and the inspector specifically testified that he didn't think that just sort of trees plaintiffs are talking about was a hazard at all and the reason is this is i would like to point the court dollars of the regulations as objects that are considered obstructions under the injured are presumed hazards to aviation air navigational less oeuvre the study shows otherwise more importantly  the only study we know of that was just prior to the crash was the one counsel just talked about in the court in look at supplemental record one hundred and twenty seven dollars last line where their own inspection says  there are numerous additional obstructions a both ends of the of the runways in two thousand and eleven they identified the last point i'd like to make before i finish the morale is case which pounce will identify points out as is not around us is very clear if wires were over two hundred you had to mark them there was no discretion that was a crash under two hundred and under the regulations you had