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The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2705

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Estate of Delores Walters; *

Tanya Ward; Paddy Aungie; *

Melanie Traversie; Dion Hall; *

Brady Hall, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

United States of America, *

acting through the Bureau of *

Indian Affairs, Department of Safety, *

*

Appellee. *

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Submitted: December 13, 2006

Filed: January 29, 2007

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Before BYE, COLLOTON, and BENTON, Circuit Judges.

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BYE, Circuit Judge.

Several parties who suffered injuries on the Cheyenne River Sioux Indian

Reservation in South Dakota challenge the district court's1

 determination that their

claims against the Bureau of Indian Affairs (BIA) were barred by the discretionary
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function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346,

2671-2680. We affirm.

I

 Three separate car accidents occurred between January 14 and May 6, 2004,

on a 14.6 mile stretch of gravel road designated as BIA Route #3 within the exterior

boundaries of the Cheyenne River Sioux Indian Reservation. Several people

(hereinafter Walters) were injured in the accidents. They joined together to bring

claims against the United States (acting through the BIA) under the FTCA alleging

the washboard condition of the gravel road contributed to their accidents, and the

BIA's lack of regular maintenance was the cause of the washboard condition.

The United States filed a motion to dismiss contending the discretionary

function exception barred the suit because, under the circumstances of this case,

maintenance of the road was a discretionary function. See 28 U.S.C. § 2680(a)

(precluding claims "based upon the exercise or performance or the failure to exercise

or perform a discretionary function or duty on the part of a federal agency or an

employee of the Government, whether or not the discretion involved be abused").

After converting the motion to dismiss into a motion for summary judgment, the

district court granted summary judgment and dismissed the suit on two grounds. First,

the district court agreed the discretionary function exception applied. Second, the

district court sua sponte raised the issue whether a private party could be held liable

for negligent failure to maintain a road, and concluded the FTCA's private analogue

requirement, see 28 U.S.C. § 1346(b)(1) (authorizing claims only "under

circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred"),

barred the suit under the facts and circumstances of this case. Walters filed a timely

appeal challenging both of the district court's determinations.
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II

We review the district court's grant of summary judgment de novo, viewing the

record in the light most favorable to the nonmoving party. Tillery v. Hoffman

Enclosures, Inc., 280 F.3d 1192, 1196 (8th Cir. 2002). If the FTCA's discretionary

function exception applies, it is a jurisdictional bar to suit. Dykstra v. U. S. Bureau

of Prisons, 140 F.3d 791, 795 (8th Cir. 1998). We also review de novo the district

court's determination that it lacks jurisdiction. Simes v. Huckabee, 354 F.3d 823, 827

(8th Cir. 2004).

Walters contends the district court erred in determining the discretionary

function exception barred this suit because road maintenance is generally not

considered a discretionary function, but rather a ministerial act performed at the

operational level. See ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th

Cir. 1987) (concluding the discretionary function exception did not shield the Park

Service from suit for its alleged failure to maintain a road in compliance with Park

Service standards that required park roads to "conform to the original grades and

alignments" and to be "firm, [and] of uniform cross section"). Walters likens ARA

Leisure to this case because the applicable regulation here defined maintenance as

"the act of preserving the entire roadway, including surface, shoulders, roadsides,

structures, and the necessary traffic control devices as nearly as possible in the as-built

condition and to provide services for the satisfactory and safe use of such roads." 25

C.F.R. § 170.2(h) (2004). Walters reasons the "as-built condition" of BIA Route #3

did not include washboard, meaning the BIA did not maintain the road in compliance

with the applicable standard, and thus this suit should be allowed for the same reason

suit was allowed in ARA Leisure.

If § 170.2(h) were the extent of the applicable regulations, we would agree this

case is the same as ARA Leisure and the discretionary function exception does not

apply. The government, however, cites another applicable regulation which
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specifically requires the BIA to take into account the availability of funds when

deciding the extent to which to maintain roads. See 25 C.F.R. § 170.6 (2004)

("Subject to the availability of funds, the Commissioner shall maintain, or cause to be

maintained, those approved roads on the Federal-Aid Indian Road System.").

Where the applicable statutes, regulations, or policies allow the government to

take budgetary considerations into account, the discretionary function exception

applies. In National Union Fire Insurance v. United States, the Ninth Circuit

explained this distinction:

A word also needs to be said about cost. In ARA Leisure, we said that

the agency could not invoke the discretionary function exception based

on budgetary considerations, but in Kennewick [Irrigation District v.

United States, 880 F.2d 1018 (9th Cir. 1989)] we said that it could. In

this case we also say that it could. These cases can be reconciled;

whether the government can take cost into account depends on the

applicable statutes, regulations, and policies. In ARA Leisure, the

regulation required the Park Service to maintain the road width and

firmness, not to balance that goal against what it would cost. In the case

at bar, the statute expressly requires the Corps to consider the "relation

of the ultimate cost of such work" to the other factors in deciding

whether to do the work. 33 U.S.C. § 541. Where a statute or policy

requires a particular government action, it has no discretionary function

immunity based on its choice to spend its money doing something else

instead. But where a statute or policy plainly requires the government

to balance expense against other desiderata, then considering the cost of

greater safety is a discretionary function.

115 F.3d 1415, 1421-22 (9th Cir. 1997).

Walters gives us no reason to create a circuit split with the Ninth Circuit on this

issue, other than to urge us to consider the unfairness of shielding the BIA from suit

for the serious injuries suffered by the parties in light of allegedly strong evidence the
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Having concluded the district court lacked jurisdiction over this suit because

the discretionary function exception applied, we have no reason to consider the district

court's alternative holding that the suit was barred by the FTCA's private analogue

requirement.

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road was poorly maintained by the BIA. Unfortunately, the discretionary function

exception is not about fairness:

Application of the exception is often troubling, because it may be a

shield for carelessness and poor judgment. . . . Private actors generally

must pay for the harm they do by carelessness. The government's power

to tax enables it, better than any private actor, to perform its conduct

with reasonable care for the safety of persons and property, and to spread

the cost over all the beneficiaries if its conduct negligently causes harm.

Fairness might seem to suggest that the government should be liable

more broadly than private actors. But at its root, the discretionary

function exception is about power, not fairness. The sovereign has, by

the exercise of its authority, reserved to itself the right to act without

liability for misjudgment and carelessness in the formulation of policy.

Id. at 1422.

Because the applicable regulations expressly required the BIA to consider the

availability of funds in deciding whether to perform maintenance on its roads, we

conclude the district court correctly held the discretionary function exception shields

the government from suit in this case.2

III

We affirm the district court's order of dismissal.
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COLLOTON, Circuit Judge, concurring in the judgment.

I am not as confident as my colleagues that we can uphold the district court’s

conclusion that this action is barred by the discretionary function exception of the

Federal Tort Claims Act, 28 U.S.C. § 2680(a). The discretionary function exception

precludes liability for acts of government officials that “involve an element of

judgment or choice,” where the judgment or choice is “based on considerations of

public policy.” United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (internal

quotations omitted). Unlike National Union Fire Insurance v. United States, 115 F.3d

1415 (9th Cir. 1997), where the applicable statute “expressly require[d]” the

government “to consider the relation of the ultimate cost of [the] work to other factors

in deciding whether to do the work,” id. at 1422 (internal quotation omitted), the

regulation in this case says merely that the government “shall maintain, or cause to be

maintained” the roads, “subject to the availability of funds.” 25 C.F.R. § 170.6

(2004). Everything the government does is subject to the availability of funds. This

case thus seems closer to ARA Leisure Services v. United States, 831 F.2d 193 (9th

Cir. 1987), where the government argued that road maintenance decisions required

consideration of “funding constraints,” id. at 195, and the court rejected the argument

because “[b]udgetary constraints underlie virtually all governmental activity.” Id. at

196. Cf. Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986) (“Where the

challenged governmental activity involves safety considerations under an established

policy rather than the balancing of competing public policy considerations, the

rationale for the exception falls away and the United States will be held responsible

for the negligence of its employees.”). I am doubtful that the people who determined

not to repair the road in this case were charged with making a policy decision about

the allocation or availability of government funds.

I concur in the judgment, however, because I believe the district court correctly

dismissed this action pursuant to the “private analogue requirement” of the FTCA.

The FTCA extends jurisdiction to the district courts over claims against the United
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States for wrongful acts or omissions of government employees only in circumstances

“where the United States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission occurred.” 28 U.S.C.

§ 1346 (b)(1) (emphasis added). The Act requires the court “to look to the state-law

liability of private entities, not to that of public entities, when assessing the

Government’s liability under the FCTA ‘in the performance of activities which private

persons do not perform.’” United States v. Olson, 126 S. Ct. 510, 512 (2005) (quoting

Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955)). 

In this case, therefore, the dispositive question is whether a private entity would

be liable to the plaintiffs if a private party negligently had failed to eliminate

“washboard” conditions in the gravel road traveled by the plaintiffs. The Supreme

Court of South Dakota provided guidance on this question in Estate of Shuck v.

Perkins County, 577 N.W.2d 584 (S.D. 1998). There, a driver of an automobile lost

control of his vehicle due to loose gravel on a road, and the court held that the

defendant county was not liable for negligence in maintaining the road by allowing

loose gravel to remain on the road. The court reasoned that “there can be no duty or

negligent breach thereof concerning a condition which is inherent to that subject

matter,” and observed that the plaintiffs cited no authority that “loose gravel, by itself,

is not an inherent part of a gravel road.” Id. at 589. In explaining what it meant by

an “inherent” condition, the court stated that “[w]hile gravel when initially placed may

be compacted by machinery, the passing of time, traffic, weather and the elements can

result in that compacted gravel becoming loose.” Id. (emphasis added).

The holding of Shuck demonstrates that negligent maintenance resulting in

loose gravel cannot give rise to an action under the FTCA, because a private party

(like a county) has no duty in South Dakota to prevent the development of such an

“inherent” condition. For the same reason, the failure to prevent washboard

conditions in a gravel road would not give rise to tort liability for a private party in

South Dakota. There is no dispute that “washboard conditions” are an inherent
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condition of gravel roads in the same sense that Shuck defined loose gravel as an

inherent condition – that is, while gravel roads initially may be rendered flat by

machinery, the passing of time, traffic, weather, and the elements can result in the

development of washboard conditions. The district court remarked that “washboard

conditions on gravel roads are so obvious that any person driving on a gravel road is

expected to be aware of such conditions and take precautions when driving on gravel

roads.” The court took judicial notice that washboard conditions “are an inherent part

of almost all gravel roads in South Dakota,” and appellants conceded this fact at oral

argument. Accordingly, because a private party would not be liable in South Dakota

for failing to maintain a gravel road without washboard conditions, the United States

has not waived sovereign immunity under the FTCA for such an act or omission by

a government employee.

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