UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

YOLANDA EVERT, individually and as the qualified wrongful death representative of Erwin Evert, deceased, Plaintiff-Appellant,

v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 12-8090 (D.C. No. 2:11-CV-00339-NDF) (D. Wyo.)

ORDER AND JUDGMENT *

Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and EBEL , Circuit Judge.
Yolanda Evert brought this action agai nst the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”), after her husband Erwin Evert was fatally mauled by a grizzl y bear in the Shoshone National Forest. The district court granted summary judgment in favor of the Unit ed States, reasoning

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 30, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - that the Wyoming Recreationa l Use Act, Wyo. Stat. §§ 34 -19-101 to 107 (“WRUA”), barred her claims. On appeal Ms. Evert contends that th e district court erred in finding that the WRUA applied under the ci rcumstances of her case. She further argues that even if the WR UA applies, the government’s conduct falls within an exception to the WRUA’s limitation of liab ility that applies wh en a land owner has engaged in a “willful or ma licious failure to guard or warn against a dangerous condition, use, structur e, or activity[.]” Id. § 34-19-105(a)(i). Because the district court correctly determined th at the WRUA applied, and because Ms. Evert has failed to demonstrate a genuine issu e of fact concerning whether the United States willfully or maliciously failed to guard or warn Mr . Evert, we affirm the grant of summary judgment. BACKGROUND The Interagency Grizzly Bear Study T eam (IGBST) is a study team composed of members from a number of state and fe deral agencies charged with monitoring grizzly bears in the Greater Yellowstone ecosystem. On May 27, 2010, IGBST researchers Chad Dickinson and Seth Thompson began grizzly-bear-trapping operations in the Kitty Creek drainage area in the Shoshone National Forest. They established three trap sites within the drainage. Thes e sites were located on or adjacent to decomm issioned spur roads formerly used for logging. Site #3, at which Mr. Evert was fatally mauled, was created on June 12, 2010.- 3 - Near the bottom of the Kitty Creek drai nage are private cabins authorized under Forest Service permit s, including the cabin owned by Mr. and Ms. Evert, who had lived there seasonally fo r 40 years. Mr. Evert was a botanist who enjoyed hiking throughout the Yellowstone ecosystem. He and his wife hiked the trails and decommissioned roads in the Kitty Creek drainage. Although most roads in the area were closed, obliterate d, and reseeded in 1999 to provide grizzly-bear habitat, the Forest Service maintains a tra il in the Kitty Creek drainage, trail #756, kn own as the “Kitty Creek Trail.” Trail #756 runs on top of a decommissioned road for approximately one te nth of a mile before it diverges from the road and then runs parallel to it. To reach trap Site #3 from the cabin area, one could take two routes: (1) travel approximately one mile on Forest Serv ice trail #756, then turn west on a decommissioned spur, walk up a steep hill, and travel for anot her half-mile; or (2) travel on the parallel decommissioned road for nine-tenths of a mile and then turn onto the same decommissioned spur. The decommissioned spur contained impediments to hiking, includi ng “dirt berms, trees growing up, and deadfall.” Aplt. App., Vol. I, tab 11 at 81. To warn the public of grizzly-bear-t rapping operations in the Kitty Creek drainage during May and June 2010, the IGBST rese archers placed signs in the vicinity of each trap site. They placed five signs near S ite #3, three of them along the decommissioned spur. These signs read: “DANGER! BEAR TRAP IN THE AREA.- 4 - THE AREA BEHIND THIS SIGN IS TE MPORARILY CLOSED. THE CLOSURE IS EFFECTIVE FROM 6-11-10 TO 6-20-10.” The IGBST researchers made no other specific effort to notify Kitty Creek resident s of the trapping operation, even though a Forest Service employee had recommended that they inform residents of their trapping activities. As of June 16, there were three snares set at Site #3. The IGBST researchers used bait to lure bears to th e trap sites. Being caught in a snare trap is a traumatic event that can cause a grizzly bear to become seve rely stressed and to react aggressively. On the morning of June 17, having fini shed their work at Kitty Creek, the IGBST researchers trav eled to the trap sites on horse back, planning to dismantle the sites before they returned hom e. As they approached S ite #3, they heard and then saw grizzly bear #646 caught in the snare tr ap. Bear #646 was la ter found to be an adult male grizzly bear wei ghing 425 pounds. As they cam e closer, the bear charged them, tried to get away, a nd bit on the snare cable. Mr. Dickinson immobilized bear #646 with three separate doses of an anaesthetic, Telazol. The last dose was administered before 10:00 a.m. The IGBST then removed a tooth from the bear, tattooe d its lips, tagged both ears, and collared the bear. The bear first s howed signs of recovery fro m the anesthetic at about 10:50 a.m. When the two re searchers left Site #3 at 12: 30 p.m., bear #646 had held its head up but had only partially recovere d from the anesthetic and was still at the- 5 - site. Before they left, th e researchers remove d the snares, cleaned up the bait, and removed signs warning hikers of the bear trap. At approximately 12:45 p.m., Mr . Evert left his cabin for a hike in Kitty Creek. He approached Site #3 and was fatally mauled by bear #646. Mr. Dickinson later found his body approximately 21 yards fro m where bear #646 had been left to recover from anesthetic. Ms. Evert subsequently fi led her complaint for wrongf ul death as the personal representative of Mr. Evert’s estate. The United States moved to dismiss Ms. Evert’s complaint under the WRUA, ar guing that Mr. Evert was present in the Shoshone National Forest for a “recrea tional purpose,” and that he had not been charged a fee to engage in hiking activities in the Fore st. In denying the mo tion to dismiss, the district court rejected Ms. Evert’s arguments that the WR UA did not apply, but ruled that she had demonstrated a sufficient issue concerning wh ether her case fell within an exception to the WRUA, based on the gove rnment’s “willful or malicious failure to guard or warn” Mr. Evert, to survive a motion to dismiss. After further discovery, the government moved for summary judgment, again arguing that the WRUA immunized it from liability and that the “willful or malicious” exception did not apply. The di strict court agreed with the government that the WRUA exception was inapplicable, a nd granted it summary judgment on this basis.- 6 - ANALYSIS We review the district court’s order of summary judgment de novo, applying the same standard that the di strict court should apply. See Helm v. Kansas , 656 F.3d 1277, 1284 (10th Cir. 2011). Summary judgment is a ppropriate “if the movant shows that there is no genuine disput e as to any material fact a nd the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In conducting the analysis, we “view[ ] all facts [a nd evidence] in the li ght most favorable to the party opposing summary judgment.” Grynberg v. Total S.A. , 538 F.3d 1336, 1346 (10th Cir. 2008). The FTCA makes the United States liable for tort claims “in the same manner and to the same extent as a private indi vidual under like circum stances.” 28 U.S.C. § 2674. Under this measure of liability, the United States is entitled, like a private landowner, to assert the protections affo rded by state recreational use statutes. See Klepper v. City of Milford , 825 F.2d 1440, 1444 & n.5 (10th Cir. 1987). 1. Applicability of WRUA The WRUA provides in pertinent part that “an owner of land owes no duty of care to keep the premises sa fe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on such premises to persons entering for recreational purposes.” Wyo. Stat. § 34-19-102. It further states that an owner of land who either directly or indirectly invites or permits without charge any person to use th e land for recreational purposes or a lessee of state lands does not thereby:- 7 - (i) Extend any assurance that th e premises are safe for any purpose; (ii) Confer upon the person using the land the legal status of an invitee or licensee to whom a duty of care is owed; (iii) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of the person using the land. Id. § 34-19-103. As noted, the district court conclude d in response to the United States’ motion to dismiss that the WRUA applied in this case. Ms. Evert contests this ruling on several bases. We addre ss her arguments in turn. A. Study Site as “Recreational Land” Section 34-19-103 requires that the “land” in question be used “for recreational purposes.” Ms. Evert argues that Site #3 did not meet this WRUA qualification, because it was a “closed scien tific research area where a grizzly bear was still recovering.” Aplt. Opening Br. at 15. She contends that the work of the IGBST and the temporary presence of bear #64 6, together with the closure order and signs, removed the study site from qualifying as what she calls “r ecreational land.” Id. at 15. But the WRUA refers not to “recrea tional land,” but simply to “land.”
See Wyo. Stat. § 34-19-101(a)(i). 1 It is the permission granted to use such land for

1 In Bingaman v. Kansas City Power & Light Co. , 1 F.3d 976, 979-80 (10th Cir. 1993), construing a similar Kansas recreational use act that referred to use of “land” for “recreational purposes,” we characterized the defenda nts’ property as “public (continued)- 8 - recreational purposes wit hout charge that immunizes the landowner. See id. §§ 34-19-102, 34-19-103(a). It cannot be questioned th at that the Kitty Creek drainage was “land” generally open to th e public for recreationa l purposes, or that Mr. Evert’s hiking was such a recreational purpose, id. § 34-19-101(a)(iii) (defining “[r]ecreational purpose” to incl ude “hiking”), a fact th at Ms. Evert admits. Ms. Evert contends, however, that the focus should neither be on Mr. Evert’s recreational activity nor on th e general use of the draina ge. Instead, she focuses on the particular suitability of the land for recreational pur poses on the day Mr. Evert was mauled. See Aplt. Opening Br. at 17 (“The G overnment conceded Site #3 was neither a suitable recreational area for the public [n]or la nd properly available for recreational purposes on June 17, 2010, while Bear #646 remained present .” (emphasis added)). For this proposition, she cites Holland v. Weyher/Livsey Constructors, Inc. , 651 F. Supp. 409 (D. Wyo. 1987). The facts of Holland differ significantly from t hose of our case. In Holland an eleven-year-old child played on “an abandoned pile of coal tailings in which subsurface fires smoldered” and was seriously burned when he broke through the surface. Id. at 411. Several of the defenda nts argued that the WRUA applied because the child had entere d the land to hike and to play on the tailings pile.

recreational land.” Ms. Evert does not argue th at use of this phras e in a prior case is somehow binding on us here.- 9 - The district court disagreed, noting that th e tailings “were locat ed in an industrial subdivision, not on r ecreational land.” Id. at 412.
In Holland , although the industrial subdivisi on met the broad definition of “land” contained in Wyo. Stat. § 34-19-101(a)(i), and was being used for a “recreational purpose,” the District of Wyoming found an additional requirement implicit in the WRUA an alysis: the land must be “recreational land,” Holland , 651 F. Supp. at 412, or as Ms. Evert puts it, “a suitable recr eational area,” Aplt. Opening Br. at 17. We have located no Wyoming case imposing this suitability requirement. But even if it can be read into the stat ute, it cannot defeat the application of the WRUA here. 2 Although Wyoming case law gi ves us little to go on concerning this point, persuasive authority is avai lable in other jurisdictions. 3 In particular, the New York courts, interpreting th eir similar statute, see N.Y. Gen. Oblig. Law § 9-103 (McKinney 1984), have extensively discus sed the parameters of a “suitability” requirement similar to that contended for by Ms. Evert. They have concluded that

2 The other case Ms. Evert cites, Yalowizer v. Husky Oil Co. , 629 P.2d 465, 469 (Wyo. 1981), which found the WRUA inapp licable to injuries suffered by a woman driving through an abandoned service station, contained no analysis on this point and cannot be read to impose a suitability requirement.
3 In Klepper , 825 F.2d at 1446, we cautioned ag ainst the use of other states’ laws to interpret the term “willful” as used in Kansas ’s recreational use statute, holding that Kansas law, not that of other states, contro lled our analysis. But given that Wyoming has not yet grafted a “suitab ility” requirement into its recreational use statute, there is no go verning Wyoming law on this topic. Resort to the law of other jurisdictions is therefore useful to us here.- 10 - temporary conditions a nd isolated hazards (like the re search closure or the presence of grizzly bear #646) do not ma ke land “unsuitable” under its recreational-use statute. We find the reasoning of the New York cour ts on this topic highly persuasive, and conclude that if the Wyomi ng courts were to adopt a su itability requirement, they would as well.
In Bragg v. Genesee County Agricultural Society , 644 N.E.2d 1013 (N.Y. 1994), for example, the plaintiff wa s riding his motorbike on an abandoned railway bed when he drove into a ten-foot-deep excava tion pit and was injured. Off-road vehicles had used the railway be d for recreational purposes for some time before the pit was excavated . The contractor, who excavated with the landowner’s permission, had erected no warning signs. The questi on was whether New York’s recreational use statute app lied to the railway bed, notwithstanding its alleged “unsuitability” for moto r-biking at the time of the acci dent. The New York Court of Appeals held that it did: The [recreational use] statute rem oves any obligation on the landowner to keep the premises safe and to give warning of any hazardous condition to persons entering for recr eational purposes. If this language is to have any force, suitability [fo r recreational use] must be judged by viewing the property as it generally ex ists, not portions of it at some given time . Any other test, which requires the owner to inspect the land, to correct temporary conditions or lo cate and warn of isolated hazards as they exist on a speci fic day, would vitiate the statute by reimposing on the owner the common-law duty of care to inspect and correct hazards on the land. Id. at 1018 (citation, internal quotation ma rks, and alterations omitted) (emphasis added). See also Morales v. Coram Materials Corp. , 853 N.Y.S.2d 611, 617- 11 - (N.Y. App. Div. 2008) (“Where property is suitable for recreational use at most times, but is temporarily unsuitable on the date of a plaintiff’s ac cident, the immunity of [the Recreational Use Statut e] applies to the landowner, as the issue of suitability is measured against how the property gene rally exists rather than upon temporary hazards that exist on a pa rticular day. . . .”); Albright v. Metz , 672 N.E.2d 584, 588 (N.Y. 1996) (same). This case is more like Bragg , in which a temporary hazard was present on premises otherwise “suita ble” for recreation, than Holland , in which the court implicitly found an industrial area never to be suitable for recreation. The Kitty Creek drainage was generally suitable for recreational purposes, including hiking. Part of it was made “unsuita ble” only by a temporary hazar d: the presence of bear #646. Assuming the Wyomi ng courts would recognize a “suitability” requirement, this temporary “unsuitability” did not re move the land in question from the WRUA. B. “Invitation or Permission” to Use Land Under § 34-19-103, a landowner must “either directly or indirectly invite[] or permit[]” use of his land to benefit from the protections of the WRUA. Ms. Evert contends this requirement was not satisf ied because the IGBST posted signs closing to the public the area containing the bear traps. These signs, however, announced only a temporary closure and had actually been removed by the time Mr. Evert was mauled.- 12 - These facts distinguish this case signifi cantly from the case Ms. Evert cites for this point, Bingaman v. Kansas C ity Power & Light Co. , 1 F.3d 976 (10th Cir. 1993).
In Bingaman we held that the plain tiff had created a genuine issue of material fact concerning whether the Kansas Recrea tional Use Statute applied, where the plaintiff’s husband drowned in a weir that the defendants had permanently excluded from recreational use by marking it off with a series of rope-buo ys, and by patrolling the area with security personnel who re moved fishermen and boaters found in the area. By contrast, the presence of tem porary signage here, which had been removed by the time of Mr. Evert’s accident, was in sufficient to create a genuine issue of material fact concerning whet her the public was invited or permitted to use the Kitty Creek drainage for re creational purposes. C. Other Arguments Ms. Evert also argues that the WRUA does not apply because the defendants “knowingly created an unnatu ral, hidden peril on the land, ” Aplt. Opening Br. at 19, in violation of their common-law duties, and that the WRUA should be strictly construed because it was enacted in der ogation of the common la w. But the purpose of the WRUA is to limit common-law liability. See Yalowizer v. Husky Oil Co. , 629 P.2d 465, 469 (Wyo. 1981) (noting WRUA’s purpose is “to encourage landowners to make land and wate r areas available to the public by limiting liability in connection therewith ” (emphasis added) (internal quotation marks omitted)). Notwithstanding her argument concerning a landowner’s common-law duty to refrain- 13 - from creating or aggravating a naturally existing condition, th e WRUA imposes only a lesser duty to avoid a “willful or malic ious failure to guard or warn against a dangerous condition, use, stru cture, or activity,” Wyo. Stat. § 34-19-105(a)(i). Ms. Evert’s proposed rule would defeat the purpose of the WRUA. 4 In sum, we affirm the district court’s conclusion that the WRUA applies under the facts of this case. 2. “Willful or Malicious Failure” Exception Alternatively, Ms. Evert argues that sh e has demonstrated a genuine issue of material fact concerning whet her the WRUA’s “willful or malicious failure to warn” exception applies here. She begins her anal ysis by arguing that the district court misconstrued Wyoming law in deve loping its test for willfulness. 5 We need not consider the specific alleged errors of state law she ra ises. It is su fficient if we ourselves correctly apply the governing Wyom ing law as part of our de novo review of the summary-judgment decision. See Salve Regina College v. Russell , 499 U.S.

4 In support of her argument, Ms. Ev ert cites this passing remark in Holland : “The legislature intended to increase access to Wyoming’s recreational areas, not to permit landowners to lay traps for the pub lic and then claim immunity under the Act.” Holland , 651 F. Supp. at 412. This remark , which added little to the court’s analysis in Holland , is not binding on us, and we dec line Ms. Evert’s invitation to use it as a basis for finding a common-law duty here.
5 We note that Ms. Evert has alleged only that the failure to guard or warn was “willful,” not “malicious”; accordingly, we confine our review to the issue of willfulness.- 14 - 225, 231 (1991) (“[A] court of appeals should review de novo a district court’s determination of state law.”). Under Wyoming law, as Ms. Ever t acknowledges, the definition of willfulness required her to show that the govern ment’s acts or omissions were such as [were] done purposely, w ith knowledge-or misconduct of such a character as to evince a reckless disregard of cons equences. . . . In order to prove that an actor has engage d in willful misconduct, one must demonstrate that he acted with a stat e of mind that approaches intent to do harm. State of mind, of cour se, may be difficult to prove. Accordingly, courts allow a party to establish that willful misconduct has occurred by demonstrating that an actor has intentionally committed an act of unreasonable character in disregard of a known or obvious risk that is so great as to make it hi ghly probable that harm will follow.
McKennan v. Newman , 902 P.2d 1285, 1286 (Wyo. 1995) (internal citations and quotation marks omitted) (emphasis added); accord Yalowizer , 629 P.2d at 470 n.6

. Ms. Evert does not contend that the rese archers intended to harm her husband. She properly relies on an objective test of willfulness. Under that test, liability is established if (intentional) action is taken when a re asonable person would know or have reason to know that there was a high probability that harm would follow. See Bertagnolli v. Louderback , 67 P.3d 627, 632 (Wyo. 2003). Having clarified the applicable law, we now consider its application to the facts of this case. The burden on Ms. Ev ert is to prove that a reasonable person possessing the knowledge of Dickinson and Th ompson at the time they left Site #3 would have known that it was “highly pr obable” that someone would be harmed because of the increased danger posed by bear #646 before it recovered from the- 15 - anesthetic. We are c oncerned with only the increase in the danger because the presence of grizzly bears in the area alwa ys created some danger and Ms. Evert has not argued that it was necessary to warn hikers of that danger. Ms. Evert emphasizes the government’s actual knowledge of the dangers associated with a griz zly bear that has been trapped, anesthetized, and released while recovering from anesthetic, wit hout a warning to the public. But the record contains insufficient evidence to support the remainder of what she must prove: that it was highly probable that this danger woul d result in harm to someone in the circumstances present here. In particul ar, one could not reasonably infer a high probability that a hiker would enter Site #3 before the bear recovered from the anesthetic. The recovery tim e was likely to be short a nd it was unlikely that anyone would enter the site, particularly when the weather was inclement. The government presented evidence that at the time the IGBST team left Site #3, bear #646 was already recovering fro m the anesthetic a nd was expected to complete a full recovery soon. Ms. Evert contests this conclu sion, noting testimony from the two researchers that it is possible that a bear may “go back to sleep . . . to recover fully from the anesthes ia,” Aplt. App., Vol. I, ta b 14 at 125, and that bear #646 had not yet showed signs that he was going to st and up when the researchers left, id. , tab 8 at 60. Nevertheless, the partie s appear to agree th at the bear would probably have recovered with in another two hours.- 16 - What, then, was the probab ility that a hiker would en ter Site #3 within that two-hour window? Ms. Evert points out that the site “was less th an three-quarters of a mile (3700 feet) in a straight-line dist ance from the recreati onal cabins and less than one-third of a mile (1700 feet) in a st raight-line distance from the Kitty Creek trail.” Aplt. Opening Br. at 46. These di stances, however, are a poor measure of the difficulty of hiking from the cabins to the s ite. In particular, as the district court noted, the hiking distance to the site from the Kitty Creek Trail was about one-half mile; was on a decommissioned spur with “ boulders, dirt berms, trees growing, and deadfall in the middle of the spur,” Aplt. App., Vol. II, tab 29 at 209, and required climbing a steep hill. Mo re importantly, the issue is not whether a hiker could have hiked to the site from the cabins, but how likely it would be for a hiker to do that. In that regard, the resear chers reported that during their three weeks in the Kitty Creek area they had not seen any hike rs other than on the Kitty Creek trail or the decommissioned trail that pa rallels it. That is, to us e the district court’s term, they saw no hikers “off-trail.” Ms. Evert raises three challenge s to this point. First, she notes that the IGBST team ha d three relevant encounters with hikers or horseback riders while conducting trappi ng operations in the Kitty Creek drainage. But these encounters did not occur “off-trail.” The grou p of riders from a nearby dude ranch met the study team on the deco mmissioned road runn ing parallel to the Kitty Creek Trail. Hikers also met th e study team twice on this decommissioned road.- 17 - Second, Ms. Evert argues that the reason the IGBST members did not encounter more hikers was because the warn ing signs kept them away. She cites no evidence to support her argument, other th an a hearsay statement that Mr. Evert himself told his wife that wh en he saw one of the signs in itially, he turned around and headed for home. In any ev ent, the team members’ obser vation that hikers were not traveling off-trail was not limited to the three sites with warning signs. Third, Ms. Evert asserts that a genui ne issue of materi al fact remains concerning the credibility of the IGBST researchers. She argues that one of the three encounters did not occur at the location cl aimed by the IGBST researchers. But any dispute about the precise location of this encounter is inconsequential, because all agree that it was not “off-trail .” She also asserts that th e testimony of other witnesses established that the public ma de significant use of the K itty Creek trails in May and June 2010, despite the IGBST team’s asser tion to the contrary. These differences, however, are also immaterial to the essential issue—that is, whether hikers frequently traveled off-trail in the area. The only reasonable conclusion is that, based on the information known to the researchers, the inacces sibility of Site #3 made it hi ghly unlikely that a hiker would enter the site during the re latively brief time before the bear recovered from the anesthetic. Moreover, the weather conditi ons at the time decr eased the likelihood still further. The temperat ure was below 42 degrees and average winds were 15 to 20 miles per hour. According to Ms. Evert’ s testimony, when her husband was leaving- 18 - he put on a coat and wool hat because it wa s snowing, he put on a scarf so he would not get cold, and he decided also to wear gloves. Of course, people who love the outdoors may decide to hike in much worse weather than was present that day. But such weather hardly increas es the population of hikers. Finally, Ms. Evert complains about the di strict court’s statements concerning Mr. Evert’s intent and argues about the motives of the res earchers in leaving Site #3 before the bear had fully re covered from the anesthetic. We need not address those matters, however, because they are irrelevant to whethe r there was a high probability of harm in removing the warning si gns before the bear recovered. Thus, Ms. Evert failed to establish fo r summary-judgment purposes that the government disregarded a known or obvious risk that made it highly probable that harm would follow. As we have explaine d, disregard of such a known or obvious risk is a requirement of willf ul misconduct under Wyoming law. CONCLUSION The judgment of the dist rict court is affirmed.

Entered for the Court

Harris L Hartz Circuit Judge