morning i'd like to reserve two minutes of time possible for the time to keep your voice up i'd like to reserve two minutes of time possible for rebuttal argument of my name's eric rosman i'm an attorney in boise idaho and i represent the appellant in this case in the armstrong versus united states case this case is on appeal to the ninth circuit court of appeals following the granting of a motion to dismiss under federal civil procedure twelve b one for lack of subject matter jurisdiction the central issue is the application of the discretionary function exception to the plaintiff claims into the federal addressing the application of the discretionary function exception to the federal tort claims act this court held in young versus united states that whether a challenge action falls within the exception requires a particular ised analysis of the specific of how the government is alleged to have been negligent is critical the specific issue in this case is whether the identification and the taking of some action relating to the hazard tree in the in this case in the campground in this case was required under what was called the third pope project in two thousand and five if not if it was not mandatory was the any discretion associated with those decisions the kind that was intended to be protected by the exception itself is standard every review is obviously to know on a dismissal and the plaintiff although the plaintiff and the appellant bears the burden of proving subject matter jurisdiction i would emphasize that if the burden is on that the government to prove the application of the exception itself because the f t c is intended to compensate individuals its provisions should be construed liberally and exceptions construed narrowly and that was decided by this court requires this action by the government so i would submit that there are two steps first was whether or not the requirement whether or not the inspection of this particular campsite was required under the third p obligation to inspect for human safety concerns and specifically for hazard trees required the identification of hazard trees in the inspection report is the record tell us what happened in instances where hazard trees were identified it does not and you didn't find anything one way or the other i didn't find any i mean i did not find anything one way or the other your honor and i would also emphasize that a hazard tree is a fairly general description has a tree can range from something that has some potential likelihood of failure to something that has imminent risk of failure within a year which is what was considered with the which is what undisputedly this tree was considered in this particular case but after the fact after the fact however each of the individuals with the expertise that testified in this case plan of sexpert dr de niro from the government as and also mr guy on from the government the al admit that as of two thousand and ten that tree more likely than not had been standing dead for over ten years you know although you know a lot of you know a lot of snags the stand for twenty thirty forty years back that had been there for ten years doesn't tell me much but there might have been other things about that particular tree of course that would have made it very likely to fail and of course i am right and if in the record with dr jan adams testimony and also mr guy owns testimony and also plants experts testimony a standing dead tree is in fact identified per se as a tree with imminent risk of failure is it and isn't isn't the real problem here the policy doesn't specifically require remediation of hazard trees it just seems to require identification that's that's the distinction i guess between this case and the ferguson case where there was both the mandate that you remove the trees i would submit to the court to the government has placed no policy consideration whatsoever into the record under these particular eyes facts that would have justified doing nothing under the second prong of berkowitz analysis specifically if we look at the particular action in this case and that is a standing dead tree that's been dead for at least five years at the time of the inspection imminent risk of failure any campsite that is known to the government in their own documentation to have regular camping in fact as reference in the government's own record that there's camping at that site every week virtually every weekend of the summer so you've got a tree with imminent risk of failure hazard within feet of people camping every weekend and it's not an obvious known risk as the courts addressed in the black burn case it's a risk that only the the united states for service is obligated to identify and in this particular case i was going to but once again i'm obligated by work the third ball project if you look at that im campsites and inspect them and it has all the items that they're obligated to inspect for one of those items is human safety concerns and one of the specific human safety concerns that they were obligated to inspect for were has are trees and there's no evidence in the record to dispute that linda linda bryant who actually did the inspection testified that she was expected to inspect for hazard trues and when she inspects for hazard trees at  or thirty six pages thirty five twenty three through thirty six nine she testified about all the details steps that she was expected to go through her boss t j clifford testified that she was expected to use reasonable care in inspecting these campsites b individual the ranger that actually adopted this policy ranger erickson testified in his deposition at page eighty three the reasonable care was expected of these individuals when inspecting these  campsites so she had the odd cation to inspect the campsite for has a tree and she's admitted and as well as the other deponents in the record have admitted that when you inspect the campsite you have to use reasonable care to identify hazard trees and when you're identifying a hazard thirty five twenty three through thirty six nine she goes through the steps that she goes through and inspecting a particular site for has drones is what she does i'm just trying to figure out where it is  required to go so where it says she's required to do it is in the inspection form or it says she's obligated to identify hazards for words or it's fortunate i don't have the site to the inspection can identify that and bring it to the court's attention on rebuttal certainly was this a developed campsite or something more rugged and less less developed well it was a developed can't it was not a developed campsite as identified by the government however it was a camp site that the government knew was frequently visited virtually every week and is in a firing their apar there was a firing there there was a firing there and they knew that people were congregating in that area along that stream virtually every weekend of the summer so theory difference for purposes of the policy to identify hazard trees whether the campsite is a developed one or not i think there would be if but for the third pole project your honor without the third cool project all that is required by the four service manual is the inspection of developed campsites but the third pole project took it out of the manual and said we are going to inspect dispersed camps at these specific dispersed camp sites which included the one in this case is is there any development in the policy of the reasons for identifying hazard trees or is it just obvious to everybody i would submit that is more to the latter more obvious to everybody if you look through it wasn't the primary purpose of the third pole project but it was a purpose of the point of the third pole project and that was a seaman safety consideration watershed quality in the wilderness the general forest area of the in the boise national forests converted the forest service policies about recreation in the general forest area in a way that that it hasn't if you turn to poole project in fact required what opposing counsel says it does would you agree that that is no longer a discretionary decision that point doesn't quite say that so and i do want to look at what it says but let's say it has such a requirement would you agree i'm not trying to put the words of a man who just live in the same position would you agree that that is no longer a discussion i function issue the third pole project required the government to inspect camp sites and prescribe the specific types of conduct to inspect and then i think that the part that would be missing there still is that one fifty six and one fifty seven and then you can see the compilation of results at one at one fifty eight and one fifty nine where you can see that the purpose of this was part of a precursor to a need to study about how to improve th certain areas in the forests the watershed quality and the bowl trout the ecology for the bowl trout population so here the government the inventory sheet requires linda bryant in this case the forest service employee who went out to catalog various characteristics of how humans are using the general forest areas that might impact the water quality one of which is you know the taste of cover what the existence of a user created firing and to catalog how humans are using this one of which is this item thirty one is described as human safety and it describes it requires her to cat categorize according to a category whether there are no human safety hazards whether there are any hazard trees at all and then you'll see in the following page she's just required to identify according to a category one two or three whether there are any human hazard human safety characteristics that are noted or not so in some instances she noted the existence of hazard trees in other instances including this campsite five years prior to the accident she no hypno has trouble understanding  hazard tree is relevant to the stated purpose of the project and your honor that that goes i think to the the the the purpose of the project was to assess human impact on the forest area and there's the impact of forest area on humans that certainly how it is described that human safety might be one way of reading it but if you read the testimony of linda bryant and her supervisors it was clear that the purpose of the project the instructions on your three seventeen on those who were conducting the project were to measure the direct effects of human activities  but she could be wrong well if she's wrong about that then maybe the government would be liable so you're telling us that she thinks she doesn't have to do this doesn't think to answer just such as question  apparently is to assess the impact of human behavior upon us water quality your your honor the record is unclear why it would be labeled human safety characteristics that the record is very clear on the precise purpose of the project and i'm directing you not to her understanding but to the instructions from the forest service to those conducting the surveys which were to address and evaluate activities and impact that direct effects on recurrence this things said it doesn't say it quite so explicit about states actually well we'll look at the purpose of the project and human safety is not his live with it so we don't take into account we'd be entitled to say that all right we could look at it and say well actually has something in here that says look out for has just a campus and the forest service looks and says well it can't you know we don't agree that's why we read it to mean something else right did not adopt that ok we'd be entitled to look at this and say no they're wrong and this we can read this as a as a actual requirement on the phone to a claims act right the fact that the forest service doesn't see it that way doesn't bind us so i ok so you remember what the question is yes your honor ok so just answer that question can you read this to adopt a policy no you're not hearing the question let's say we do or did that your honor we are entitled to second guess and say the forest service is wrong about how it treats us but that's precisely the point at the discretionary function exception your honor if we view this is mandatory yes your honor if we read those mandatory yes that's a question of law yes your honor and then we can tell the forest service it's mandatory it's not discretionary your honor is no there's no chevron there france we know anything of that so this well your honor if you were to read these two words in a thirty item inventory to radically change the forest service its policy with respect to how it manages the forests and record you would still not have a mandatory duty not have been able to identify in these two words a mandatory duty t remediate the tree in any specific way and there your honor despite how you read a duty to inspector inventory and related survey of an area in the forest that is used by this is an inventory that was developed for the purposes of related study we're we're not we're not seeking any sort of unusual we're not asking the court to make any unusual leaps about the meaning of this inventory study it's the plaintiffs who have have done so here in trying to bootstrap two lines in this thirty person thirty item inventory into a radical change in the forest service as policy because bryant did not identify this hazard when she surveyed the campsite if she had with that made a difference in this case your honor five years if she had identified this is a hazard tree five years beforehand no your honor i don't think so because there's no there would have been no mandatory duty at that time much less five years later to take any particular action i do know that are there other projects in which clearly  hazard must be identified and remediated with the language is clear or not in the third pole project in any other project in the forest service so that i could speak universally to i'm just i'm just wondering whether there are other projects that specifically say hazards must be remediated because this policy doesn't say that you're right your honor this policy does not and there are there's examples and in this court case law where a government agency has adopted a specific safety plan or undertaken i think that was a softball question and you should be answering there develop him science for which the forest service is radically different standards for remediation of safety hazards yes your honor there are there are there are those policies and develop camp warming to answer your question directly there is evidence in the district court record not in the excerpts of record here about the types of warnings that are given in maps the high full declaration that is in the excerpts of record before this court explains the type of safety warnings per person to person mornings when there encountered general safety warnings on the website or on maps that would be available to those  i think those are along the lines a don't have them in front of me but know before you go that trees can create safety safety issues and to be to be aware of your surroundings at all times but th we don't inspect those camps science for human has your honor at the reason that they don't is because these are i'm just like a statement i was actually asking a question there's nothing in the record saying that the government wants people have been permitted to go into the general forest areas and have maybe repeatedly return to but they're not campsites within the meaning of developed camp sites that the forest service maintains and and monitors recreational uses so this is you know a ken to going out into the general forest area and pitching a tent that this happens to be at the edge of the forest where users have gone before but there is there is no sort of general warning about an absence of a duty to inspect all two point no there's no obligation to inspect the rest of the force but there was an obligation to inspect this particular campsite to their bull project that obligation included human safety inspection including has a tree inspection t j clifford when the bryants supervisor testified in his deposition that he expected that the two thousand and five survey misprint would assess trees to determine whether they were in imminent risk of falling and that is it a year one sixteen page one on line twenty one to twenty four she was expected itself has developed then there are these dispersed camp sites of which this is an example where users do it themselves and the firing here was not put down by the forest service would been by somebody else  how how was it determined what camp sides of this disperse nature would be inspected it was a well known of the forest service that there were one hundred of these and these would all be inspected were they just wandering through the forest thinking well people come here sometimes i mean how is that determination made the third pole project was determined by the ranger erik's and he decided that there would be specific dispersed campsites all resting along this i think it's a three mile  area so there was a limited number of dispersed camp sites of which this camp site was and they were along the water which ties to the project of impact upon the water and someone made the determination that if you're inspecting these campsites we want to look at for human safety issues especially this campsite where we know people congregate every weekend of the year why isn't it possible to look at this maybe even likely to look at this will as long as you're inspecting them for various purposes having to do with human impact why don't we just do a general well why shouldn't we read the record that way because it is a motion to dismiss in fact should be construed in favor of moving parties there is a factual dispute on that particular issue as to what their the scope of their obligation was in inspecting these and in fact some of their own testimony supports a plan his position on this particular case and if you look at the particular action which the court young kay said you need to really look at deciding this exception the particular action is if she'd uses reasonable care identifies this as an imminent risk a tree of twenty seven inch diameter sitting in the middle of a campsite of heavy regular use doing nothing the government has identified no policy consideration that was support doing nothing under the second berkowitz analysis thank you