an accurate and unsubstantiated and supported finding of fact by the trial court and it is one that was arrived at by applying an incorrect sort of law first of all the court took a look at this twelve b one motion for lack of subject matter jurisdiction and rather than treating it as one that involves the substance of the case or the merits of the case which it did it took a look at it instead as a  facial or technical matter and if at minimum a hearing an evidentiary hearing should have been although it is the pounds position that there were sufficient facts in the record to establish exactly very to what the court as national park service did in fact have plenty of knowledge the barracudas and admitted that barracudas were a hazard to people at the show in addition to that the court sort of put on its head the burden of pute proof in this typically a plaintive does have the burden of proof of a stablish ing subject matter jurisdiction but in a case where we're where the defense from the united states is discretionary function and quite honestly we don't feel that it wasn't here in the first place that is because the case law as established oh time and time again that when there is a known risk and there was a known in two thousand and one i believe it was the national monument was created and there was a mandate that the no fishing that they implemented that mandate starting in a ring of rocks that was used hot coals used to form a ring of fire and no one had ever stepped on those before either but because there was a risk of serious bodily injury that was known to the national park service botha and they did so what is it that should have happened they should have had more specific warnings rather than just the general warning that was the the brochure that they had first of all only warn generally of a that you may encounter and it was directed that warning was directed to snorkelers there was nothing within the brochure that even gave anybody the slightest idea if you were walking on the beach or sitting on the beach and certainly there is nothing to indicate here that this boy or any member of the public in general would expect that while they're sitting on the beach with their feet in the serve that they would be attacked by a bear isn't there a point where too many warnings could lead people not to pay attention to them and isn't that part of what the discretionary function about i don't think so your honor and certainly not that wouldn't apply here because  and isn't that what he was referring to i think if you look at the record that's what she was referring to but later in her testimony your honor she also testified that she was well aware that you could as a human encounter shallows and reef near shore this is the only place in the entire page that shout the arrow of shallows and reefs near shore are addressed the finishing of that sentences contain sharp fire worms and barbed it would have been very easy extraordinarily easy for the national park service to add to that barracudas all they have to do to make this  he was a sand beach sitting in this and by the way that's the area of the beach that the national park service directs people to go to there's certain areas of the island of the monument that their people aren't allowed to go  and what they encourage is that you go to this area so here they are drawing people to that area wanting them to part your partake in the monument there where this if there is a risk that they know about but has turned the so i see my time is up if i can you know as to please answer the question i think the court has turned the question on its head the district court said the discretionary function and not applied because there was not a known hazard because if there is a known hat it's no longer discretion and we have shown there was an other therefore it was not discretionary it was mandated and it could have been easily accommodated simply by changing the wording of the brochure itself that would have