junction at cedar creek falls in the cleveland national forest and ultimately fell off a cliff and died when the district court granted summary judgment on the issue of a discretionary function exception he did not analyze a key mandatory duty regarding the placement of not at a junction but there was a sign at the junction but he didn't get to the junction is in your claim that you have to that the mandatory duty is the police assigned not only at or before the junction but at or before user created trail no you're on our claim is that section five point three of the four service sign poster guidelines requires the placement signs at or in advance of a junction our claim is not is there any doubt there was a sign at the junction there was a sign at the junction but the rule doesn't have to satisfy the requirement it doesn't because the rule requires that the junction that the junctions evident and well if you're at the junction you see the sign it's evident because put his finger on the problem you're not really concerned about the signs at the junction you're concerned about the lack of a sign that i'm on junction will rule that rule five point three requires the sign to be either at or in advance such junction planned and at the junction the sign is there there's no dispute about that and at the junction the junction is evident the sign is evident everybody knows when you get to the junction your problem is that that in advance of the junction and i've done a lot of hiking i've been lost sometimes it's hard to tell exactly which one is the trail but the regulation doesn't require that all potential junctions be identified that this is the real thing or this is not th created trail that they veered left on was about fifteen feet away from the junction and there were trees blocking at the junction we have two witnesses who testified in this case under oath that they couldn't identify the junction so i think that's a fact but they couldn't defy the junction where were they when they said they couldn't identify the junction they were approaching the clearing where so it's not a question of being able to find the junction at the junction where you can't get to the junction because of the trees blocking the signs so we have two witnesses who made that  point basically they couldn't even identify the junction because the signs were behind trees and so the governments they can position that they had the option they could replace the signs at or an advance they placed him at which satisfies the rule but there's a case that's very instructive on that issue which is myers versus united states one of the policies miers was similar to the one at issue here had an order it said certain plans had to be reviewed by a certified professional or equivalent based on training experience the government said see we had discretion we could place the science sorry we could the plans could be reviewed either by survivor fresh or a equivalent the court said no that's not discretion it's professional judgment and and that same thing applies here there's professional judgement involved in deciding where to place the signs that's not discretion and i think the question of whether the junction was at all but but i'm still a draft because none of this says that the regulation wasn't complied with well you're reading into the regulations something that i haven't seen there i think it's a and that's something that seems to be does demonstrate an application of judgment that is where do you need to put a sign that says this isn't a junction no only that don't you have a little problem about when you when you look at the facts of this situation and you know the point at which you feel there's just no dispute about where he was when he failed is  for purposes of the appeal which so what good would the sun have done the sign would have allowed him to continue on the main trail to the bottom of the falls where he was intending to go and i think that that's a causation issue which isn't really folk addressed in this appeal but the your honor the issue of where to place the signs i think the state of whether that sign was evidence is really inherently a factual question the government had a duty to place also the regulation doesn't say that  every place along the trail the next junction has to be evident i mean sometimes the junctions a mile away so is a supposed to mean make sure that every place you are in the trailer needs to be something visible telling you where the next junction is this was a area  within feet of the of the junction so but i'm not sure how that changes anything you are arguing for a position that says the non junctions that is the user created trail more than the natural drainage or whatever else that causes and there's cases like for example sailor sutton versus earls and garcia all of those cases involve the government's failure to post speed limit signs and pursuant to specific direct directives and this court held that those cases those decisions are policy the sign was apparently ineffective there's no question but the sign posted here i mean not disputing the sign posted here was visible improperly marked the junction your complaint is it couldn't be seen in advance of the junction so your honor i think a key thing to remember question is what's the requirement how expansive is it is there a requirement that you post something and advance of the junction to make sure that the proper junction is done a fight is being in the distance so that the place you're at now isn't the junction even though you may have discern i don't think the court can can say you know definitively whether it was complied with because it's a factual issue whether the sign was evidence is a factual question they had a mandatory duty to place of just being a factual issue doesn't end the question i mean you're not disputing there was a sign at the junction and so we can say ok it's mandatory the evidence says it satisfied i would argue that they've they didn't comply because they had a duty to make sure the junction was evidence we have witnesses saying it wasn't and again on the question of whether it was grounded in policy we're not talking about deciding whether a post warning signs in the absence of a specific director surely are you're asking for a sign on some trails every fifteen feet you weren't far from the junction here you want far from a sign it was actually there but your argument is it was invisible and the problem is on some train also as they curve around you can't see very far in the distance so you're asking for a sign all the way like the old burma shave science and that's not a trail it was the key junction on this trail your underwear where basically if you go to the left you're heading to the top of the ghost was your t was it it was a manmade well this first prong of the discretionary function exception test is satisfied where the challenge conduct involves an element of judgment or choice and the challenge conduct in this case involves both the section five point three of the sign and poster guidelines itself embodies an element of choice in providing options for where a sign can be located and also invokes the agency's judgment in the language indicating that junction should be evident there is judgment that goes into the forest service is determination of how to make a junction evident and this is made in this regulation or policy applies to all national forests and each junction is different and each forest must balance varying considerations in determining how to make a junction of it and the forest service could certainly put up lighted bright neon signs in advance of each junction in order to make it evident but they have to balance competing policy in this case i don't think is that the situation it may not have it may not have to do with the argument you're young and i was going to help you just don't want to thank your honor i understood the i want to address the myers case which did involve pure professional judgment as to who should make a safety or if you a judgment as to where to place a sign that provides information to users of the national forest is a very different type of judgement and i'm getting into the second prong of the analysis is a very different type of judgment than i decision whether or not for example to post a speed limit sign which is a purely safety based determination to sign a like this a sign like this is to provide information to the users of the national forest to provide any guide him on the real trouble keep them on either the real trail or the trail that they intended to be on there's multiple trails two trails meet here at this junction and problem here is that that the deceased wound up on something that wasn't supposed to be a trail and that happened at some point removed from the point the junction that we're discussing now the rule seems written for the situation of somebody that comes to a junction doesn't realise this is the junction and keeps going in a direction the problem here's a slightly different one which is that somebody comes to what appears to be a junction but it's not marked and you have to figure out which way you're supposed to go and i confess i've been in that situation because sometimes i just the nature of of wilderness or forest and if the rule is intended to let people know what the real trail is is not a problem if you come to a place that looks like the trail goes off this way because users of made a path that direction but there's no sign you can't be sure i've looked at this photograph it's in the record it's your isn't the government supposed to be responsible for showing which where they're supposed to go i don't know that the government has that duty to specifically direct each user precisely where that user wishes to go it's a goal that's embodied in the sign and poster guidelines but there's discretion for the purposes that are addressed in john friedlander his reply declaration that sign it there are many many of these user created trails and to place a sign on each one of them would overburden the forest service is resources and would create an over political and absurd over proliferation of warnings when there are many users in this land who are creating these pass on a day to day basis it's certainly a goal to provide information to users where where they would like to go in to help them reach their destination but it's not mandatory and it's because of the nature of the national forests that this type of conduct is protected by the discretionary function exception that the childers case is quite instructive here on both problems of the analysis the forest service in that case there was some mandatory conduct we're talking about n n maintained trail in yellowstone in the winter time and the forest service there was required to either close the trail or adequately warn the public and the court found that the forest service did not have discretion to do nothing because there wasn't on trail however what it chose to do when it decided not to close that trail was within it's just a question the term adequately warn require the agency to make its own judgment as to how to how to effect that goal and that's similar to the type of provision that's at issue here so i section five point three of the sign and post your guidelines require something there doesn't need to be a sign in association in conjunction with a trail junction and there is no dispute that there were signs at the trail junction but the goal of making the junction evident requires the agency to exercise its judgment and to balance the goal of providing information against the competing goals of avoiding first and over  and ineffectiveness that comes with that as well as preserving the aesthetic nature of the national forest in particular this area which is a fairly remote area and removed from civilization and that type of balancing is recognized again and again in cases like childers like valdez blackburn and turbo that this isn't a strict professional judgment or safety judgment that this is competing policies that have to be balanced against each other  a pretty good case in this area as involves several other accidents before this unfortunate accident is that a consideration which should be taken now by the forest service people the as to first of all yes it's correct that there were other accidents in this area and believe the question is whether the forest service should take that into consideration in placing directional  forest service didn't have any reason to believe that directional signage played a role in the prior accidents with which to fax the jury it wouldn't be relevant to the discretionary function analysis which looks at the nature of the content the nature of the conduct and whether it's whether there's on the one hand you don't want to have too many sides because it spoils the view on the other hand you have some accidents occurring perhaps because people don't know where they're going so is it your position that it's discretionary function of the forest service to weigh environmental views versus the danger of death yes that is the forest service is position as set forth in the history of cases in this court that look at conduct within the both the national park service and the national forest yes if the court has any questions about the recreational use immunity fence i will  s those as well the the way that issues have been narrowed on appeal the recreational use immunity defense is susceptible to being decided by this court the  against a dangerous condition the only allegation of wrongful conduct in this case is the decision where to place a directional sign and there's much information in the record not only about the challenges associated with this area but also the great lengths that the forest service was going to to address all of the known risks and in the context of that background the decision where to place a directional sign at most could constitute negligence and not willful conduct falling in line with this court's decisions in cases like spiers and ts where it was found that a failure to take even additional steps would not be willfulness but would be mere negligence therefore invok recreational use immunity defense and less the court has any other questions i will conclude and ask that the judgment be affirmed thank you thank you very much it's a briefly summarize on the on the discretionary function exception again we're dealing with a mandatory duty the question of whether a sign is evident doesn't involve balancing social and political interests it's an objective standard and i don't think of think she was posing that is the policy question she was posing the question of whether it's a wilderness or you have a sign of her fifteen feet why isn't that a policy question or the rule requires the signs only at junctions everything feet i'm not saying that the s should be user created passed we're saying that junctions i don't even know of another junction out you don't just mean there was a sign at the junction your can dispute is that the sign couldn't be seen in advance of that place that a user created path no we're our argument is they didn't comply with their rule to make sure that junction was evident and so i just want to briefly address recreational use immunity thank you for your time has expired there was little discussion of that before so we we have your brief that will be sufficient