made it on time council good morning yours this is not a case where competing policies directed government behavior rather this is a case where government behavior after the fact we went searching for a policy to justify it i dare say that if this accident that resulted in injury here had happened on private property that we would not be here we would be on our way to trial this claim income this is a very narrow set of decisions a very short stretch of trail and the issue is whether or not the edge of that trail was negligently constructed or maintain whether whether it was at least from for my part isn't your stronger case on the maintenance issue the construction you get into the shall i say more nebulous territory but with maintenance isn't your case law back back up fairly clear well to be candid i can tell you as i stand here today whether and here's what's great about the record in this case it has and has a number of photographic representations and so we know what the trail looks like at the point where ms fluke said phelim was severely injured what i cannot tell you as i stand here today is whether it was constructed poorly in the first place or whether it had fallen into disrepair because of poor maintenance so it may be correct that i think which is mass if i may intimating if he had the discretionary function  policy right and so you know on the construction the sovereign is given a lot of leeway with regard to making decisions about their ascension and so forth were on the negligent  maintenance that may be a different issue and in looking through what you submitted with regard to the deposition as to people's eyewitness accounts as to how the acts in occurred i think it's a question of factory appears to be where she was why it happened and so forth so at this stage of the negligence if you could address your argument i can see why the court should and of course you're exactly right we're talking about twenty eight u s c twenty six eighty a whether or not the exception applies for some discretionary function of government but the cases that we've cited i can't conceive the construction point for this reason the cases that we have cited say hey the government has a lot of discretion in how it puts together a plan and how it decides to build something but if in the construction the construction doesn't conform to those plans or there's just bad decisions made based upon engineering or professional judgment which is which we submit is the case here then that improper construction still can be a basis for a claim against the government that decisions removed from  discretionary function exemption at this stage we don't have to prove either one of those so if it if it got if the trail so let me back up a little bit i think we do have sufficient facts to at least support on a rule twelve motion where the court is asked to assume that the facts as we've all alleged them are true or on a rule fifty six standard that we're entitled to every benefit of the doubt or reasonable inferences on those facts that ms fluke stead was on the trail there's a number of witnesses who talked about where she fell and actually drew circles on the pictures of where that  happened and i submit to the court that at least at this stage for rule twelve or rule fifty six purposes that the evidence and i think frankly the trial court missed this that the evidence has to be at the starting point that  was on the trail and fell from the soft shoulder or the eroding edge of that trail not the vegetation and that fall harmed her now again let's let's it certainly we would all have to agree with that's all discretionary and as a matter of law was the district judge within its rights to say you know what that's discretionary even taking this is played you can't have a cause of action that doesn't deal with the maintenance issue that's a separate point but on the other point why why would the district judge be wrong in what was done here on that point well i'm not sure i completely understand you because when you say on that point i mean on on the discretionary aspects of how the trail was designed how steep it was where it went how wide it was all that sort of thing there's a there's another significant question here it's both a factual and a somewhat legal question at the same time and that is were there any standards to which this trail was to be built that goes to i suppose the design or the plan in the first instance  i can't say we conceded that design is always a governmental discretionary act or function based on policy because there are some places where you could still really poorly design something it would probably be negligent but we really haven't argued that in our briefing your honor and so we don't we don't take issue with we're just running came out necessarily on that the design function is a discretionary function so much as when it turns to then here was the plan how did you build it according to that plan did you have different options in how to build it according to that plan we submit they did and then did you keep the trail in that condition after you built it to those standards the trail expert that that we hired and again you don't have to accept his opinions at this point but his opinions and the facts that he had should at least be considered for purposes of again will twelve will fifty six as to whether or not to create an issue of fact or  as been was very clear that this roading edge of the trail was dangerous that it was a hazard that it was not to standard that there was a problem with the trail occurring here whether it was maybe he alleges it was poorly built but he you're challenging in terms of the design construction if you we have to look at whether first whether that conduct is discretionary or not to concede it was discretionary as to how as to whether or not to take on this project then we go to the second step then right and so if it's discretionary we have to consider whether the particular exercise that discretion was of the kind that the discretionary function exception was designed to shield right with your position on that well when they come to the point where they say that you know this action was not of the type that was directed by a discretionary policy and we argue strongly that that's part of the problems of this case  if and i'm saying you could look at this either under step one or step two because the action here and a lot of the discussion is argued about is the method that was ultimately chosen to construct was it chosen based upon some discretionary function that was driven by some policy and in a lot of the discussion the argument the breach turns around the use of some sort of support for this material in the form of a foot board or other soil maintenance rather than vegetation as which which was selected as the support for the strike that's because don't they have this mandate of balancing public using conservation they do in fact in nearly all these cases that arise on federal lands out of the park service those those appear to be the competing concerns how do we give visitors access to the lovely national parks and at the same time preserve what is their right to that within the discretionary function then of this effect that policy drove the decision making that's exactly right here's the problem here we do have lots of pictures of this site and if your honour's have seen them there are foot boards in support for this trail along the entire length of this trail except for the place where how can the united states with a straight face argue that the decision not to put a foot board in this spot was somehow driven whether under prong what prong wanted prong to by the need to preserve the natural look of the of the refuge when it every other point they found it necessary to support that trial with the full bore and they didn't find that that balance was somehow interrupted or harmed by it well i mean but then that the whole point behind a discretionary function exception is that if they have the discretion to do it and that's within their mandate and you know they make a crummy decision based on you know maybe overvaluing one competing concern then the other they still get a pass on to the exception because it's part of their discretionary function but i respectfully disagree or honor it where they cannot demonstrate that it actually was the discretionary function that led them to choose not to put the footboard there again when you look at this case in hind hindsight it's just hard to argue that the decision not to put a footboard there was based upon some competing concerns the claim that what was now let's take that let's take a hypothetical let's just say that at that particular spot there was an incredible vista and they thought that having footboard out there would somehow detract from that would that be enough to get out from under the problem that you're postulating if a footboard somehow interrupted with an incredible vista absolutely wrong in their view well i would hope that you three judges as you look at this look at that and say all right i'm not buying that a footboard played any role in that fact up so your from from your perspective berkowitz and the other cases allow us to in effect second guess the discretionary function basically no i would be flying in the face of all of this court all of these courts decisions if i were to agree with that statement or what i am saying the problem with your position is that you're you know making the case of what the  government should should have done right instead of what they did not do but you see the statute and the so you're saying they made the wrong choice but to  know if they made the wrong decision doesn't matter right that still has class right around them what you're saying they made the wrong decision no i'm i'm not i mean i'm saying they could have made other decisions that would have supported this but my arguments closer to the a are eliezer case the den case where having made a decision so i think that's probably most analogous here but having made the decision to not put guardrails along that particular road what happened after that was that the park service failed to maintain that road now you'd switch to as well i've been arguing i think i've been arguing construction but i agree maintenance is an issue as well in fact i think areas most announcer's because on the one test point i don't mean to play indeed well again and judge to shame let me come back to a case that you said on recently in twenty fourteen and it came out about the time that our briefing was done here and i concede i didn't get to kill the last day preparing and it was the young case that came out of rainier national park where mrs young fell into a hole created by the electric transformer for the jackson visitor center and your honor what i understood your panel to have done in that case was to look at the stated policy reasons for why the decisions were made or not made in that case and trying to side whether it made any sense at all that the government's argument that hey we use this type of discretion was a reason for not putting warning signs around that particular transformer so the court actually got into the analysis of does the stated policy actually make sense for the action that was taken or not taken there and went in that was a warning case but but your case unlike young is not a fa you're not making such a claim i'm not you're on what i'm saying is the type of analysis that the court entered into there where it actually questioned did this decision i mean because every time the government throws out the same policy balancing considerations they say hey we balancing these policies well what what your pal did was say well come on were those but did those policies dictate how you made the decision whether or not to warn their i ask this court to consider did the policies of the ones articulate here do they have any control on how they ultimately constructed this and whether or not they could have maintained it as a question by my colleagues no thank you i think your gover good morning your honor may please the court until miller in half a united states and you begin by talking about why this case is not on the scale first of all there are two reasons the first one is i believe there isn't actually a factual dispute about where the plaintiff was when she fell and the record is clear that she was on the shoulder of the hard surface of the path rather than on the path itself at page forty eight of the excerpts of record there is her testimony that the last step she took before she fell was into quote the dirt between the har and the weeds what do you know jeffrey pearson deposition testimony ending on the soffit of the trail at page one seventy eight of the record there is a photographic image in which the page before which is a statement from jeffrey pearson makes clear that he is the person who has made a circle as to where the last step was one seventy eight of the record you can see that that circle is on the dirt shoulder and his deposition testimony at page two eighty six is that she was on the dirt surface right next to the weeds so his testimony does not give rise to a disputed fact either in their reply brief they suggested that amanda white's testimony gave rise to a disputed fact on this question that's also incorrect ms white testified that this is the sixty seven of the record becky stepped off the trail when she made that step backward and then forward she was asked a question that you stepped stepped off the trail when she made that step backward and forward she responded correct and then later at two ninety she said she was on the shoulder now there is some ambiguity in her her testimony she said she took a step back and then a step forward recessed to this council of in this case or are we at the pleading material dispute effect but that would not apply with respect to the maintenance issue with it yes it would because that's that's a that is a an argument of the discretionary function exception doesn't apply i see so so all of it is the summary judgment standard and there is no dispute a fact here on that question for the reasons i gave i can give other citations to the record other testimony all of which is consistent she was on the shoulder now the reason that's significant is because  if she was on the shoulder whether the edge of the hard surface of the trail with deteriorating or not is irrelevant because it didn't affect her fall now the second reason this isn't a maintenance case or this can't survive as a maintenance case even if you think there is some factual ambiguity is the aerial easier case and the national fire insurance case air i lease or as a counsel represented in the case about a bus that went off the side of the road at an alley national park there were two claims by the plaintiff the first was a challenge to a design decision that the parser should have put a guardrail there and failed to do so that's a design decision that's protected the court's questions the culprit here suggests that the thought applies to the design of the trail here and i think that's decision but there's a really significant factual difference from here in that case the road was designed to be twenty eight feet wide and at the time of the accident it was fourteen point six feet wide but there was a park service manual that said that the roads must conform to original grades and alignments and be firm and of uniform cross section and this court said that that that maintenance decision wasn't protected because they didn't comply with the mandatory policy to maintain the road and national and financial fire insurance actually makes this clear about a lease or i'm going to read a paragraph from national fire insurance if i may there is an element which appears to make this case more like the road with an aerial easier than it really is facts of the case there are there was a retaining wall that was supposed to be fourteen feet high and it had subsided to twelve feet and the plaintiff said this is a failure to maintain claim just like area leisure court said no it's different it was plain an area leader that the road the supposed to be twenty eight feet wide and was only fourteen feet wide and was supposed to have firm shoulders but instead house shufflers likewise in the case at far the breakwater was supposed to be fourteen feet high and was only twelve feet high that increased the force of the waves which destroyed the plant's restaurant but the legal difference is more significant than the factual similarity in area leisure the regulation required the park service employees to keep the road shoulders firm and the road to twenty eight feet in the case that bar the breakwater height was specified in its design but there was no regulation or policy requiring the corps to monitor the breakwater height and ensure that continued to conform to the design specifications so even if you believe that there are some conflict in the record about where she was and she was on the edge of the trial there would also have to be something that dissipated that that even though a year had passed since the trail had built the part of the national wildlife refuge had to go out there and make sure it still conformed to the west and the design didn't specify how wide of the hard surface of the trade how do you think there's only going to be a maintenance claim negligence claim if there's a policy to maintain it at a certain specification i think  car insurance stand for that proposition now there are some cases like with nancy where there was a routine maintenance decision that simply didn't have any policy implications and that's a separate case but here there are policy implications as to the appearance of a trail in a national wildlife refuge when the agency's function includes preserving the natural habitat and i think the hypothetical that judge smith gave of what is a vista opens up here actually applies in this case if you look at the images of the record where the footboard start where there's a dirt shoulder and vegetation that vegetation is sort of the hillside going down into the coastline and the beach and this is the spot at which the trail opens up he says i can see that  to do with the construction because you have to take all of those competing considerations into account but once you decide that the national park decides they're open up a trail if they don't come up with a certain sort of regulation or general policy about maintenance are you saying then they never have a duty to maintain i'm saying that there might be some i mean witness says there are some routine maintenance decisions where there is a duty to maintain i'm saying this isn't one because it was a tr in a natural environment where the agency had a duty to preserve the natural habitat and also as i said before i don't even think that it's a maintenance case in the first place so and that's because there was no policy to maintain a certain with and so for and that there is no factual dispute as to where she was she was on the shoulder which means it's a back door way to get out the decision to have a shoulder so say we we do conclude that there's a factual dispute ok so then we get to the second part of it and this is the part that the decision was a cause and falls within the function discretionary function an exception here though it's it's just your normal negligence claim as counsel is saying you know  on private property and you invited people in and you knew that people walked in this area so that that's where i'd like you to focus why why should we not find that it should go forward at least at this stage on that claim a couple of different reasons one because we're in a natural environment where the agency's mandate includes preserving the natural habitat and so there isn't there you would have natural occurrences like rain snow storms and eighty roads over time you're saying that there's no obligation on the part of the national park to maintain that trail i'm saying without a mandatory duty in the agency regulations and here there are no agency regulations with with regard to the construction and maintenance of trails what about your rights is governed by state law and what about in most states and in washington to you know the landowners obligation right well there are keep you know to keep the premises reasonably safe there are tort duties but of course in the in the discussion a function exception maintenance again say i think you're taking the position that the design and so on is discretionary but maintenance is also discretionary and we're asking questions on the basis that the maintenance aspect is not at least as a per se category part of the discretionary function you dispute that i gather i agree that maintenance that unlike design maintenance isn't a per se category but i think in the context of a natural environment such as a national park or forest service land or wildlife refuge like the discretionary function again and isn't judged as she may correct that where state law applies if there's not a excluding federal law then there is an ongoing obligation on any land owner to maintain the property in a certain way that safe would you agree with that yes but but i do think the discretionary function exception  except the government from that from keep it on maintenance yes in some circumstances absolutely what case would you cite for that there are a number of cases for example that there's a case  because we're talking about a trail that's built it's there it's done whatever the weather design was a good design or a bad designs a different issue we're not talking about that we're talking about whether it was maintained you know whether you believe it or not it's is you know that there's some testimony that suggests that the edge of the trail was crumbling or was you know was falling into disrepair if that's right in a normal state action the owner of the land might be liable  why is that true in this case of the government well as national inspire insurance suggest sometimes a decision not to maintain government lands to the standard at which they were originally built is protected when there's no mandatory duty requiring maintenance it's your job and you're just talking in a circle  i don't see how that fits into the discretionary function and asking you to help me with that how how does this get into the discretionary because in this context it really is an attack on the design and here's why their theory this is an attack on the design in this context it is because they are their only evidence of a lack of maintenance is that the trail was eroding because it not a foot for or not to somehow pack the trailer put a guardrail or something like that is that really the type of exercise of discretion that's protected by the exception  is it grounded in social economic and political policy seems like it's not it seems like it's an everyday you know decision you know is this safe enough for people to to walk on  is and that's because of the context in which the decision was made and the mandate of the agency which includes preserving natural habitat and it is always the case in a plaintiff can say one incremental safety additional safety department like a foot board like guardrail like mine you know i don't see how this mandate to preserve the natural habitat comes into play because the decision has already been made to disturb natural habitat by building the krill in a certain way and the problem is not the natural habitat it's with the manmade the trail crumbling well your honor because the reason one of the guiding destroyer of the natural habitat it's because plaintiffs theory as to why the edge was crumbling and if you look at page two forty eight of the record you'll see that their expert says the edge was crumbling because it wasn't supported correctly that's a design decision i see that my time is almost up and i want to make sure it's