for the appellant please the court although this case has a lot of issues in it i'd like to limit my argument this morning to just three key points the first is this court's decision was you're close enough the key distinction that the district court made in common he was that in that case and the other ninth circuit cases there had been a hidden peril but there was no hidden peril in this case well let me ask you about that to detail for the court as well as we do in our brief i'm not going to try not to repeat my brief but to highlight for the court those undisputed factual matters which show we would say beyond any that it had to be a good martyr or should be your expert testimony i'm sorry on the key part would be your experts testimony i sent well that's certainly part of that because he did testify not only that this was a hidden condition but that the approach itself was part of the of the hidden peril but there's a ton of other evidence here on or from which we can conclude that the as the only logical conclusion the problem i have is factual in that regard i mean clearly if you have a road coming to an end of a sheer drop off like that's one circumstance but here we have a undisputed that almost the right half of the roadway which had been hardbacks most traveled portion of the roadway becomes suddenly and i rode it portion of the roadway and so he's going now over very rough terrain suddenly at night unexpectedly and then he's pointed as with a cleft in the direction of a gaping washout yes and then i read the expert testimony and it seems that your experts  inevitable that anyone coming over that hill at twenty five miles an hour is going to be in trouble and yet now we get into the issue of no prior accidents assuming that they aren't conclusive he said that what was the hidden danger his it was also the perception his testimony was mainly the usual perception reaction time data and he said that with this when he could first see that when his first headlights first went down that at least somebody else going along that road would have done the same if you you know it's absolutely true you couldn't see it and if you were driving otherwise you know sensibly coming over there you couldn't see  any indication of how many people travel that road for this accident and how many and i know your honor i don't think the record has a it may have a count but again your honor this this is permanent and that was the argument that this court rejected and i believe in the last case too you'll find that there were a number of years that went by without any accidents and the court didn't even even similar accident we find that that is a part of what for come on let's let's let's hear both judge fischer and i don't take what we're saying is being or our point of view but the point is both of us have been very careful to say that the prior accident issue is not dispositive so you're absolutely correct there is no prior thora saying that the absence of prior accidents is the end of the ball game i'm just suggesting that the fact that other people didn't encounter the same problem as some tendency to call his opinion into question because otherwise position here is that the whole totality of factual circumstances that when you come up and around that corner at night and point down and suddenly half of the road becomes eroded and this before they hit it and why why wouldn't this be whatever else may be true and i realize it's your job to ask questions not mine but as a rhetorical question why wouldn't this be a hidden peril at night under all of these circumstances but apart from the fact that an accident happened about probable versus possible isn't it reasonable for them to factor in that if you drive the road normally an accident is not a problem if you drive the road says when you are making the decision of whether a danger is probable rather than merely possible you have to take into consideration human error or mechanical failure you can't just say well if he does it right then there's not going to be a problem and of course the negligence of the plaintiffs in this case can certainly be contributory negligence but the question is regardless of what this plaintiff did here should before th accident ever happen should the b l m have seen have foreseen that this was a dangerous condition as far as the mark on the track goes your honor the mark on the diagram there's absolutely no substantial evidence to support any conclusion the mark on the diagram is unsupported by the testimony that was given concerning the diagram and it's unsupported by the diagram itself the conditions under which it was made the foundation there was no foundation laid for the diagram the diagram is inconsistent with other objective evidence such as the photos showing a curve the diagram shows a straight a curved road the diagram shows the ct widening if anything at this spot all the testimony in the photo show the road knowing you have this diagram made at night in thirty minutes after exactly so when he comes up and over the first thing at night he starts to go down he unexpectedly hits this road area the defendants like to call the shoulder and then again in the pictures you'll see an e ground it's inconsistent with other objective evidence and if you look at the testimony itself piers didn't testify i said well i'm basing everything i say on the diagram and the track marks in the photos but there is no track mark in the photo trainer's testimony about the diagram is pure speculation so neither the diagram nor the testimony concerning it can constitute substantial evidence to support the court's finding court my name is claire parr me and i'm an assistant united states attorney representing the united states of america in this case i want to respond to a few things that counsel mentioned or that the court raised with regard to the road i don't have a particular site to tell you but i believe it's described as a single lane dirt road while one could perhaps do that somebody might say a little more right than the left i didn't describe as a single i don't road people do come both shoulder not the travel portion of the roadway and if you look at the photograph you see a lot of vegetation right near the edge right near the area of the erosion such as in exhibit four five and twenty nine which also show the red cone which is the end of that twenty foot real mark if you look at those photographs one can certainly understand the testimony of ranger are from twenty two years twelve i don't know the precise dimensions i would agree that if you look at if you consider the road to be traveled roadway and the shoulder then yes the road did narrow to some extent we don't have the exact amount it may be something that was there testimony that there may have been your honor i don't recall for certain but it's something in that in that range in any event judge asked about what the effect of the tracks my track marks are and again i would refer the court to exhibits four five and twenty nine which show the red cone officer trying or discussed in his testimony that it was commonplace for officers to work together the reason it was probable they would be an accident here i mean obviously the track marks would be germane if there's a reversal here the trial goes forward and again i would refer the court to exhibits four  five and twenty nine those are excerpts of record page sixty four sixty five and seventy two and if you look at those you can see that if i study compare that to exhibit one the diagram which is page sixty one of the excerpts of record the magistrate judge discussed the conflicting evidence regarding the precise location of the washout whether it was on the traveled roadway or the shoulder he noted the evidence that mr neavitt was traveling at an excessive speed and had been drinking you noted that there and when you look at that evidence put together it certainly is sufficient for one to conclude that the b l m did not know or should have known that a accident without injury was probable as opposed to possible and the what there the why at the wheel track is relevant to that because if you would have been heading off the road regardless of whether the erosion was there then even this accident doesn't go to show that an accident was probable versus possible because this accident could have happened regardless of whether the erosional whereas there might have rolled down the ravine in a slightly different fashion because once he was heading off the road and  the area of the car i think behave differently than it would have if it was just on straight into the trees down the ravine but the accident itself would have happened regardless and that's because of what mr neavitt was doing that night applying your judgement wasn't there cleary or because of the court can look at the totality of the evidence before the district cour believe that the district court needed to make specific factual findings as to each person each element for example a very precise finding regarding the hidden peril or a very precise fight finding regarding whether or not the  that couldn't be seen or met a boy well it could be seen if somebody had been driving at a slower rate of speed it could be seen more easily during the day it was not in the travel portion of the roadway and therefore again that goes to how much of a peril it is so i don't see that there is a clear error in that particular finding by the court but even if there were that particular issue you can can look at the totality of the circumstances again one of the issues that was raised by the court was the lack of prior accidents and again as i agree with you that there is no case that says a court can't consider twenty thousand people entering this area a year now not all of those are going to travel this precise portion of the road but i think one can easily assume that thousands of people are traveling it mr need to travel any after the war was we don't know it because of environmental issues there is free there is naturally occurring as best in the area and so there's concerns about whether water and soil and things wash so given that this is been there for several years thousands of people travel in this area every year the plaintiffs appellant traveled in this area no not necessarily on this particular piece of road but maybe he did he was going there this night several times a year mr murphy traveled there several times a year he was mr he was traveling companion the evening of the accident this indicates that a lot of people can get past this area not just ranger schwartz who knows the roads so well but a lot of people can get past this area without having any problem with a road area off of the side of the shoulder if they're driving in a responsible manner now yes it was night and that doesn't parents one's ability to see over hills and around cliffs and that sort of thing question that we're concerned but it does go as to whether an accident is probable park people can assume that people will act responsibly now yes when you're designing a road you should take into account that some people may have slight miscalculations or their reactions may not be as quick as other people but you don't shouldn't have to assume that you have to allow for somebody driving at an excessive rate of speed to the point where his traveling companion is begging him to slow down after drinking a pint of vodka that's not what a reasonable person should have to consider in designing a road and that's what they should be considering whether an accident on that road is probable now if the court agrees with the those issues because of the recreational use immunity issue however if for any reason the court finds that there was clear error by that straight judge on the recreational use immunity issue then the court still can affirm based on the lack of of the b l m here or the discretionary function exception with regards to the duty issue the district court incorrectly found that the b l m had a duty to maintain this road this was a county wro the county retained its eastment you've been on this road even though the county had gone through the statutory process which the california legislature has allowed to disclaim its maintenance responsibilities so the county didn't have to maintain it as long as a post of the signs which they funds on maintenance of non b l m roads the b l m entered into various agreements where when they could get money from an outside source sometimes with the counties assistance such as the way vehicle funds from the state or fema funds after the el nino events when they could get those funds they would almost act as a contractor for the county in fact i think there were invoices that they could give to the county in some instances to do the maintenance but that did not mean that they had undertaken a general responsibility for it they were doing the work when they could get the funding from an outside source they had not they did not undertake the star george  that the reimbursements would come through actually testified that he never said that there was not any work done that did not get reimbursed through one of those sources what was the what do we make of the memorandum of understanding  specific way to the funds that the county had available to it at that time that had expired but there was an understanding that it could be extended and so b l m was going to assume those maintenance responsibility use through that grant program it was not assuming general a general duty to keep up this road forever i think the district court was somewhat uncomfortable with the idea that there could be a road out there  the public is allowed to go on that no one has responsibility for maintaining but that is precisely what the california legislature has allowed have had this been a county road on county land and the county has gone through the process that did to disclaim its maintenance responsibilities i think there would be no question but that the county would still not be liable even though no one would have any responsibility for maintenance of the of the road here the fact that the underlying land is b l m land shouldn't change that  basis that the local people had to work within and the dallas high case says that when a decision is made the lower level people implementing it are also protected if that original decision is a protective discretionary decision here there was a decision made not to spend b l m funds on this case i mean on b l m roads this case is also not not like they are a leisure decision where this court stated that there was quote no clear link between the park service road policies and the condition of the road in that case here there is a very clear link between the b l m policy made on a nationwide basis and then implemented by the local people and the condition of the road prevented from spending their money because of the nationwide decision made on how the b l m would would you would carry out its mission it so here is that the decision by the district court as to the recreational use immunity should be dispositive and the court doesn't need to get into the other two issues of judea versus discretionary function however you i have four points that i'd like to make quickly i'd better make them quickly of the first is that respond to your honor's questions it was twenty feet it did narrow to about  five ninety eight which is in the excerpts of record decker's testimony at six seventy four and six seventy five trainers testimony one thousand and one twenty two that support secondly the use of the word shoulder all the time as if something on the shoulder makes it less of a hidden danger just makes sense no sense at all under these circumstances where the shoulder so called is just the eroded area of the road which makes things more dangerous and which comes up very quickly thirdly so you're not supposed to drive well if you come up and over the hill your honor and  traveled road and all of a sudden you find eroded road no you're not supposed to but it certainly makes for a dangerous condition on the last and as far as they have no ability to maintain these roads with non b l m funds the site as a p r ninety nine is interesting it says you can't spend funds on non b l m owned or controlled roads and if there's one thing clear from this record  is controlled this road and for that very reason under the case in under three twenty four a of the restatement regardless of what the documents said they were had a duty under california law  is that there's talk about shorts being worried about invent fire mental concerns but the court believed what the neither said that schwartz told them that total four months before the accident he had told is a period of the danger because he said it looks like