to say from the photographs i believe that the defendant had it in their declaration the tree is a dangerous thing what it calls the tree is a dangerous thing specially if it we'll all assume trees are dangerous and that this one was particularly dangerous since if out my question is this week we've got at least three cases in this circuit to deal with falling trees from federal property maybe there's more but kim in armstrong and fernandez so i don't two of them remember this but if you would would you try to place this case in the spectrum of those three and  ask the question a little differently let's assume that the government doesn't really matter which agency had no policy at all about inspecting trees  i don't know what the seven step plan with case was that in the whaling case there was a similar situation of ratings what have you see three hundred requires ratings as well here thousands of pounds and trunks and what have you so it is health and safety issue it is something that i think we look to the kim case as being important in this regard i don't think there is case specify exactly how the how the policies are to be written but when you deal with the army corps of engineers with a good engineering standards the  section thirty one section thirty one rather clearly seems to say to me one should look for these hazards including dangerous trees and remove them when they pose a danger it doesn't have standards by which one judges when they're dangerous assuming that it does no incorporation here so my question is if you does that get you past a discretionary policy discretionary function exception or do you need more it should have into the cases that your honour's brought up regarding the tree law on the th circuit to show how this case the discretionary function exception apply the case of ken didn't change any discretionary function law the th circuit reaffirmed the standard that has been not by the supreme court but made it clear that the key inquiry is looking at the qualities that are in place at any particular federal site kids there were very detailed houser tree policies in place there was a system that was mandated in yosemite plan that required examination of trees for hazards and effects as a rating system from one dollar to two thousand and if the trees were rated above a certain level they would have to be slated for some sort of path or tree abatement none of that is the case those policies in place whether there's a part of a drought in place here i'm sorry there's a policy in place here nobody downstairs a policy question is what does it provide a policy seems to say tell me where i'm wrong will inspect for hazards including produce that might become hazards or fall down and when they're identified we should remove that it doesn't have the standards by which the park ranger or somebody else will determine that it is that a fair statement of what the policies yes your honor the own p state general call a c s that address a number of  considerations that are in place to park a static environmental cost does it or safety workers say state and all of those must be considered the security of our air position your i have the discretion then to say well i'm not going to do anything about it because i'm not getting about your honor that discretionary function exception clearly states that if it apply wise whether or not the discretion involved is abused that clear the statute and that particular situation unless there was a policy in place that stated that leaning trees were required to be  it's a policy was in this place there was no mandatory specific set out in the own p that required anybody at lake mendocino to remove a tree that had a leaning branch and also yes you all saw some kind supposed to analyze whether the trees presented a hazard there were no writing requirements there was no record keeping her acquirements and here the workers at lake mendocino testified in their declaration that they never kept a written record based on their factions of the camp site so that hazard tree removal goal was in place but it didn't set a policy that was mandatory or specific that would have had that that i think that you're asking me a few cases can be reconciled and i think that they can because as i stated before the can court did not state that there was a new discretionary function standard it analyzes specific policy in place there are cases that you're honest mentioned armstrong and fernandez and armstrong which took place for service the court held that the discretionary function exception did apply  fernanda the discretionary function exception did not apply again because of six facts and not particular case in that case the tree in question had been identified as hazardous and there was a policy in place that stated once a tree was identified as hazardous it had to be removed within a specific time and this court found that where there was a mandatory duty then the agency was required to comply with that was that you were thinking about where she was now as is the case involving the illness that somebody got from being exposed to toxic mold and there was no statute policy or regulation but we nonetheless sa d keeping somebody said from the toxic load didn't fall within discretionary function exception the same thing was t the creation of a system and there is case law that states where there's a created hazard for example the case that involves the transformer that was you know where there's a created hazard the discretionary function doesn't apply  that difference from the situation here because it wasn't a created hazard it was a natural tree that had been there prior to the to the campground being established so that's  how tool would be distinguished and witness i think that that may have been the case that took place inside the prison and my recollection is that there had been a duty that had been adopted to two regarding the safety of the enemy and that was a duty that couldn't be abrogated or not taken in place but that's different than natural forest birds that might be enough in trees the fact that mature trees if they are clue moves will take many years to replace and all of those sorts of policies are different from the kind of scientific is banned or where the tree fell and they were logging trees and the tree fell into somebody's d yard this is also cases relied on my plea that they are the only issue was scientific or technical whether or not the tree was cut down it was all a certain way how tall it was and whether or not it was the neighbor's backyard it was no sort of coliseum that could have been a clay there that would have hearing to safety guidelines that were in place and i think that those are fundamentally different when you're talking about cases on open land where the government has been involved in creating the hazard in any way it clear to say that cleaning up mold involves only professional or signed judgment and wasn't subject to any sort of policy consideration there can be no environmental resource allocation or a static policy is that are in place here that impact whether or not rules should be clean the health and safety manual which is the health and safety not just for employees but health and safety of the campsite for whatever project involves it is has been adopted