FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STANLI MAE THROCKMORTON 

TERBUSH; JAMES W. TERBUSH, Heirs

at law and successor in interest; No. 06-15033

PETER JAMES TERBUSH, Decedent, D.C. No.

Plaintiffs-Appellants,  CV-02-05509-SMS

v. OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Sandra M. Snyder, Magistrate Judge, Presiding

Argued and Submitted

November 6, 2007—San Francisco, California

Filed February 21, 2008

Before: Ferdinand F. Fernandez and M. Margaret McKeown,

Circuit Judges, and David G. Trager,1 Senior Judge.

Opinion by Judge McKeown

1The Honorable David G. Trager, Senior United States District Judge

for the Eastern District of New York, sitting by designation. 

1535
COUNSEL

John Douglas Barr, Bar & Mudford, Redding, California; and

William O. Davis, Old Station, California, for the plaintiffsappellants. 

Peter D. Keisler, Assistant Attorney General, McGregor W.

Scott, United States Attorney, Mark B. Stern and Isaac J. Lidsky, Appellate Staff, Civil Division, Department of Justice,

Washington, D.C., for the defendant-appellee. 

OPINION

McKEOWN, Circuit Judge: 

This case illustrates the intersection of the National Park

Service’s (“NPS”) mandate to open federal park lands for recreational use, the scope of NPS’s obligation to provide for

visitor safety, and the risks of mountain climbing. In 1999,

Peter Terbush was killed by a rockslide in Yosemite National

TERBUSH v. UNITED STATES 1539
Park (“Yosemite”) while climbing Glacier Point. His family

filed claims under the Federal Tort Claims Act, 28 U.S.C.

§ 2671-2680 (the “FTCA”), claiming that it was not a freak

accident and that the NPS is responsible for creating unsafe

conditions and failing to warn of the hazards it created. The

district court dismissed for lack of subject matter jurisdiction

on the ground that the NPS’s actions fell within the discretionary function exception to the FTCA. We agree with the

district court’s analysis with respect to the failure to warn

claims and those regarding the design and construction of the

wastewater facilities, but the record is insufficient to rule as

a matter of law on the Terbushes’ maintenance claims, and so

we reverse and remand on this issue. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 1999, Terbush was killed while climbing with two

friends at Yosemite’s Glacier Point Apron. Three weeks earlier, another rockfall led park staff to temporarily close the

Glacier Point Apron area and the nearby Curry Village campground. The closure was lifted less than three hours after

inspection, when the area was declared to be safe by a park

ranger and James B. Snyder, the Yosemite historian who,

though not a professionally trained geologist, had been documenting rockfalls at Yosemite for decades. Terbush’s climbing partners claim that when they went to Glacier Point Apron

three weeks later, none of them saw any warnings about the

recent rockfall. 

Terbush’s parents brought suit under the FTCA, 28 U.S.C.

§ 1346(b), alleging that NPS’s negligence in its design, construction, operation, and maintenance of the wastewater management system on top of Glacier Point Apron exacerbated

the natural exfoliation of the rockface, creating a dangerous

condition that led to the rockfall that killed their son. The Terbushes also alleged that the NPS failed to warn of the dangerous condition it had created, which was an unnatural and

unseen hazard to visitors. The United States denied the allega1540 TERBUSH v. UNITED STATES
tions, asserted various defenses and filed a motion to dismiss

or, in the alternative, a motion for summary judgment on the

ground that the court lacked subject matter jurisdiction under

the discretionary function exception to the FTCA. Magistrate

Judge Sandra M. Snyder granted the motion to dismiss and

declared the motion for summary judgment moot. 

We review de novo the district court’s decision to grant a

motion to dismiss for lack of subject matter jurisdiction under

the discretionary function exception. GATX/Airlog Co. v.

United States, 286 F.3d 1168, 1173 (9th Cir. 2002). In

reviewing the district court’s dismissal, we must accept as

true the factual allegations in the complaint. Id. (citing United

States v. Gaubert, 499 U.S. 315, 327 (1991)). The United

States bears the burden of proving the applicability of the discretionary function exception. Prescott v. United States, 973

F.2d 696, 702 (9th Cir. 1992). 

II. ANALYSIS

A. THE FEDERAL TORT CLAIMS ACT FRAMEWORK

[1] The FTCA waives the government’s sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of their employment.

The government can be sued “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.” 28 U.S.C. § 1346(b)(1). 

[2] The FTCA includes a number of exceptions to this

broad waiver of sovereign immunity, including the oftlitigated “discretionary function exception,” which provides

immunity from suit for “[a]ny claim . . . 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.” 28 U.S.C. § 2680(a). In this way, the

TERBUSH v. UNITED STATES 1541
discretionary function exception serves to insulate certain

governmental decision-making from “judicial ‘second guessing’ of legislative and administrative decisions grounded in

social, economic, and political policy through the medium of

an action in tort.” United States v. S.A. Empresa de Viacao

Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814

(1984). 

The Supreme Court in Berkovitz v. United States set out a

two-step analysis to determine applicability of the exception.

See Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).

First, we must determine whether the challenged actions

involve an “element of judgment or choice.” Gaubert, 499

U.S. at 322. This inquiry looks at the “nature of the conduct,

rather than the status of the actor” and the discretionary element is not met where “a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow.” Berkovitz, 486 U.S. at 536. If there is such a statute

or policy directing mandatory and specific action, the inquiry

comes to an end because there can be no element of discretion

when an employee “has no rightful option but to adhere to the

directive.” Id.

When a specific course of action is not prescribed, however, an element of choice or judgment is likely involved in

the decision or action. We then must consider “whether that

judgment is of the kind that the discretionary function exception was designed to shield,” namely, “only governmental

actions and decisions based on considerations of public policy.” Berkovitz, 486 U.S. at 536-37. Public policy has been

understood to include decisions “grounded in social, economic, or political policy.” Varig, 467 U.S. at 814. Even if the

decision is an abuse of the discretion granted, the exception

will apply. See 28 U.S.C. § 2680(a); Soldano v. United States,

453 F.3d 1140, 1145 (9th Cir. 2006). 

The distinction between protected and unprotected actions

and decisions has proven itself to be a particularly vexing

1542 TERBUSH v. UNITED STATES
determination for district and appellate courts alike. As we

noted recently, governmental actions “can be classified along

a spectrum, ranging from those ‘totally divorced from the

sphere of policy analysis,’ such as driving a car, to those

‘fully grounded in regulatory policy,’ such as the regulation

and oversight of a bank.” Whisnant v. United States, 400 F.3d

1177, 1181 (9th Cir. 2005) (quoting O’Toole v. United States,

295 F.3d 1029, 1035 (9th Cir. 2002)). Courts have been reluctant to create formulaic categories or to demarcate flashpoints

on this spectrum to illuminate which governmental decisions

fall within the discretionary function exception. See GATX/

Airlog Co., 286 F.3d at 1174 (“Whether a challenged action

falls within the discretionary function exception requires a

particularized analysis of the specific agency action challenged.”); Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995)

(noting the Supreme Court’s rejection of “analytical frameworks” as “inappropriate means of addressing the discretionary function exemption.”). 

The Supreme Court underscored this point in Gaubert,

when it rejected a bright line between planning and operational functions. See Gaubert, 499 U.S. at 325 (“Discretionary

conduct is not confined to the policy or planning level. ‘[I]t

is the nature of the conduct, rather than the status of the actor,

that governs whether the discretionary function exception

applies in a given case.’ ”) (quoting Varig, 467 U.S. at 813).

In Gaubert, a shareholder of an insolvent savings and loan

association brought suit alleging negligent supervision of

directors and officers and negligent involvement in day-today operations by federal regulators. Id. at 319-20. In clarifying its prior treatment of the issue, the Court rejected the

plaintiff’s reliance on a misunderstanding of the law that created convenient, but false, distinctions: The Court noted that

the Court of Appeals had “misinterpreted” Berkovitz to “perpetuat[e] a nonexistent dichotomy between discretionary

functions and operational activities. . . .” Id. at 326. 

[3] Instead of a rigid dichotomy between “planning” and

“operational” decisions and activities, the Court in Gaubert

TERBUSH v. UNITED STATES 1543
adopted a different rule: “if a regulation allows the employee

discretion, the very existence of the regulation creates a strong

presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to

the promulgation of the regulations.” Id. at 324. Thus,

“[w]hen established governmental policy, as express or

implied by statute, regulation, or agency guidelines, allows a

Government agent to exercise discretion, it must be presumed

that the agent’s acts are grounded in policy when exercising

that discretion.” Id.

Under Gaubert, for a complaint to survive a motion to dismiss, it must “allege facts which would support a finding that

the challenged actions are not the kind of conduct that can be

said to be grounded in the policy of the regulatory regime.”

Id. at 324-25 (emphasis added). The Court clarified, “[t]he

focus of the inquiry is not on the agent’s subjective intent in

exercising the discretion conferred by statute or regulation,

but on the nature of the actions taken and on whether they are

susceptible to policy analysis.” Id. at 325. 

B. APPLICATION OF THE DISCRETIONARY FUNCTION

EXCEPTION TO THE TERBUSHES’ CLAIMS

[4] Before discussing the Terbushes’ specific claims, as an

initial matter we note that the authority for the NPS’s work is

grounded in the Organic Act, 16 U.S.C. § 1, which sets forth

the broad policy considerations that govern the NPS’s management of national parks. The Organic Act states the NPS’s

purpose is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the

enjoyment of the same in such manner and by such means as

will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C. § 1. Much of the NPS’s work is “grounded” in the Organic Act’s broad mandate to balance

conservation and access. See, e.g., Childers v. United States,

40 F.3d 973, 975 (9th Cir. 1994). However, we do not quickly

accept that every minute aspect of the NPS’s work is touched

1544 TERBUSH v. UNITED STATES
by the policy concerns of the Organic Act. Cf. Gotha v.

United States, 115 F.3d 176 (3d Cir. 1997) (rejecting government’s argument that national security concerns were implicated in a decision of whether to install a staircase or bar

passage down an embankment on a naval base). Accordingly,

we must analyze each of the claims in light of the applicable

policies and the Organic Act. 

The Terbushes allege a collective failure by the NPS to provide for the safety of visitors to Glacier Point. They claim that

once the NPS undertook to develop facilities atop Glacier

Point, it could not do so negligently, either in the design, construction or maintenance of the facilities, or in the failure to

warn the public of hazards. Specifically, they argue that the

NPS was aware of the hidden hazard posed by the unnatural

exfoliation of Glacier Point Apron by the wastewater management system, but failed to adequately ameliorate the problem

through appropriate maintenance or warn the public of the

hidden hazard they had effectively created. The Terbushes’

arguments amount to a “perfect storm” theory wherein the

NPS’s various failings over several decades built upon one

another, making Peter Terbush’s death inevitable and, in their

view, preventable by the NPS. 

The government counters that the NPS’s decisions and

actions were discretionary ones grounded in the policy regime

established by the Organic Act. The government also contests

the Terbushes’ portrayal of the NPS policies, arguing that

they do not create mandatory and specific duties, but rather

vest the NPS with considerable discretion in their implementation. Pointing to our case law, the government claims that

these discretionary decisions are “susceptible” to policy analysis and are therefore immune from our review. 

1. Design, construction, and maintenance of the

wastewater system 

The Terbushes claim that the NPS’s negligent design, construction and maintenance of the wastewater facilities atop

TERBUSH v. UNITED STATES 1545
Glacier Point exacerbated the natural exfoliation of Glacier

Point Apron, thereby creating an unseen hazard to climbers

like Peter Terbush. Our case law teaches, however, that

design matters involve discretionary decisions by government

actors. See, e.g., Kennewick Irrigation Dist. v. United States,

880 F.2d 1018, 1027 (9th Cir. 1989); Chaffin v. United States,

176 F.3d 1208, 1210 (9th Cir. 1999) (discretionary function

exception “renders the government immune from a negligence claim for [a] design decision [in the construction of a

cabin]”). In light of this obstacle, the Terbushes counter that

they are not asserting a faulty design claim, but rather their

claim is about the NPS’s “failure to implement mandated

safety reviews” prior to the construction of the facilities atop

Glacier Point and ongoing maintenance after construction. We

agree with the district court’s detailed analysis that the various NPS policies do not contain mandatory and specific directives to which the NPS had “no rightful option but to adhere,”

Berkovitz, 486 U.S. at 536, and that these decisions were

“grounded” in the policy regime established by the Organic

Act.

a. 1988 Management Policies—Impairment, safety

and hazard reviews 

[5] We do not read the policies cited by the Terbushes to

contain mandatory and specific provisions dictating that

impairment, safety and hazard “reviews” must occur in the

manner they describe, and note that sections of the policies to

which they cite vest considerable discretion in the NPS that

is clearly grounded in the broad mandate to balance conservation with access and safety. 

[6] For example, the 1988 Management Policies apply to

all national parks and guide policy that “sets the framework

and provides direction for management decisions” that are to

be made by managers and superintendents, who are to “ascertain park-specific purposes and management direction.” The

Management Policies state that “[w]ide variations exist in the

1546 TERBUSH v. UNITED STATES
degree to which the laws and proclamations creating the individual units of the national park system prohibit or mandate

specific management actions.” Although the policies “generally allow for management discretion . . . they are mandatory

where the language so indicates.” 

More specifically, the so-called “impairment review”

described by the Terbushes is explicitly recognized as involving a decision by the superintendent that calls for reconciling

the “inevitabl[e] . . . tension between conservation of

resources on the one hand and public enjoyment on the

other.” This reconciliation calls for judgment on the part of

the NPS: 

[w]hether an individual action is or is not an ‘impairment’ is a management determination. In reaching it,

the manager should consider such factors as the spatial and temporal extent of the impacts, the resources

being impacted and their ability to adjust those

impacts, the relation of the impacted resources to

other park resources, and the cumulative as well as

the individual effects. 

This provision is not a mandatory and specific policy, and the

language itself implicates the NPS’s broader mandate to balance access with conservation. 

[7] Nor do the 1988 Management Policies explicitly call for

safety and hazard “reviews.” While the document states that

facilities “will not be located” in areas where natural processes, including “geologic conditions,” pose a persistent

threat “unless no practicable alternative site exists and unless

all safety and hazard probability factors have been considered,” nowhere is there an explicit call for a safety and hazard

“review.” Rather, “[w]here facilities must be located in such

areas, their design and siting will consider the nature of the

hazard and include appropriate mitigating measures to minimize the risks to human life and property.” Unlike wetlands

TERBUSH v. UNITED STATES 1547
and floodplains, for which the NPS elsewhere provides further requirements to be met prior to development, no further

requirements are provided for mitigation measures relating to

“geologic conditions.” Absent further mandatory and specific

directives, in constructing the facilities atop Glacier Point, the

NPS is left to balance its various policy mandates of access,

safety and conservation. 

b. Maintenance of wastewater management system 

Recognizing the absence of mandatory standards vis-a-vis

design, the Terbushes shift the focus of their claim arguing

that “[t]he gravaman of [their] reasoning goes not to facility

design and location” but to “the operation and maintenance of

the [wastewater] system,” which they claim was negligent.

The Terbushes also claim that the magistrate judge “ignored

the existence of NPS-50 [the 1991 Loss Control Management

Guidelines], OSHA standards and Park-specific policies and

failed to recognize that “maintenance is not the kind of policy

weighing decision automatically provided immunity.” The

government responds that because the Terbushes cannot point

to any mandatory or specific requirements for the repair and

maintenance of the facilities, “the first prong of the discretionary function analysis is not at issue.” 

[8] It is true that the magistrate judge did not analyze the

maintenance claims in the same detail as the other claims.2

Nonetheless, we agree with the government that absent a

mandatory and specific policy dictating otherwise, we are left

to assume that the maintenance of the wastewater management system is a discretionary function. Analyzing the main2

In regards to maintenance, the magistrate judge simply wrote: “The

policies concerning the siting and maintenance of wastewater facilities

state broad policy objectives and refer to competing policy considerations.

There is no mandatory, specific policy that required particular action of

any NPS agent in connection with the death of decedent.” It is unclear

which policies are referenced in this finding. 

1548 TERBUSH v. UNITED STATES
tenance claims under the second Berkovitz prong is, however,

a bit more complicated. 

We must determine whether such maintenance work would

involve protected policy judgments. The focus of our inquiry

is “on the nature of the actions taken and on whether they are

susceptible to policy analysis.” Gaubert, 499 U.S. at 325.

Relying on a footnote in Whisnant, the government argues the

maintenance decisions clearly implicate the NPS’s policy

regime. Citing Bear Medicine, Whisnant summarized: “The

decision to adopt safety precautions may be based in policy

considerations, but the implementation of those precautions is

not. . . .” Whisnant, 400 F.3d at 1182 (quoting Bear Medicine

v. United States, 241 F.3d 1208, 1215 (9th Cir. 2001)). The

opinion goes on to state in a footnote:3

Our case law reveals one exception—not relevant

here—to the design/implementation distinction: The

implementation of a government policy is shielded

where the implementation itself implicates policy

concerns, such as where government officials must

consider competing fire-fighter safety and public

safety considerations in deciding how to fight a forest fire. 

Id. at 1182 n.3. 

According to the government, the maintenance of the

wastewater system is clearly within the exception in Whisnant. Thus, like firefighters needing to consider public safety

and their own safety in battling forest fires, see Miller v.

United States, 163 F.3d 591, 595-96 (9th Cir. 1998), prison

3The court distinguished its new rubric from the planning/operational

distinction rejected by Gaubert by noting that “the former [design/

implementation] concerns the nature of the decision, while the latter

[planning/operational] concerns the identity of the decisionmaker.” Id. at

1181 n.1. 

TERBUSH v. UNITED STATES 1549
guards who must balance prisoner safety and their own safety

in searching prisoners’ cells in response to a reported threat,

see Alfrey v. United States, 276 F.3d 557, 565 (9th Cir. 2002),

or the FAA’s efforts to oversee compliance with federal

safety regulations, see GATX/Airlog, 286 F.3d at 1175-77, the

government contends that the maintenance of the wastewater

system implicates the policy concerns of the regulatory

regime of the Organic Act and other policies. 

It is a long leap from routine maintenance of a wastewater

system to fighting forest fires and guarding prisoners. The

decisions and actions in the cases highlighted by Whisnant

appear to involve far more than mere maintenance (indeed,

what unites them are safety considerations), which returns our

focus to the “nature” of the actions and decisions in question

here. 

[9] Our case law directs that, by nature, matters of routine

maintenance are not protected by the discretionary function

exception because they generally do not involve policyweighing decisions or actions. See Bolt v. United States, 509

F.3d 1028, 1034 (9th Cir. 2007) (observing that snow removal

from a parking lot is “maintenance work,” which is “ ‘not the

kind of regulatory activity’ to which the Supreme Court envisioned the discretionary function exception applying”) (quoting ARA Leisure Servs. v. United States, 831 F.2d 193, 195

(9th Cir. 1987)). For example, in Whisnant, we confronted a

clear case of maintenance failure: claims against a naval commissary for failing to eradicate a mold problem in its meat

department. See Whisnant, 400 F.3d at 1181. 

[10] Looking to other circuits, we observe that sometimes

“maintenance” is far from routine and may involve considerable discretion that invokes policy judgment. See, e.g., Mitchell v. United States, 225 F.3d 361, 364 (3d Cir. 2000) (noting

that repairing roadside wall involved balancing several policy

considerations); Baum v. United States, 986 F.2d 716, 723-24

(4th Cir. 1993) (noting that maintenance could be accom1550 TERBUSH v. UNITED STATES
plished only by “outright replacement,” and was thus a decision about “how and when to replace a major element of a

substantial public facility” that implicated economic and

political policy, i.e., allocation of funds); Cope, 45 F.3d at 451

(observing that further repairs of a road required NPS to prioritize among its repairs and to “establish priorities for the

accomplishment of its policy objectives against such practical

considerations as staffing and funding.”) (quoting Varig, 467

U.S. at 820). 

[11] Though our own case law frowns upon the government relying solely on fiscal policy and budgetary constraints

as the “protected” policy considerations protected by the exception,4 Cope and Baum nonetheless lend support to the government’s arguments by substantiating the possibility that

particular maintenance activities, unlike cleaning out mold

from a store, as in Whisnant, or re-paving a road to precise

specifications, as in ARA Leisure, can involve more than initially meets the eye. If the maintenance of the wastewater

facilities turned out to involve a balancing of policy considerations, more complex decisions or outright replacement, as in

Baum, these decisions would tend to implicate the broader

mandates of the NPS’s policy regime. 

The difficulty here is that we cannot determine on the

record before us whether the challenged maintenance at issue

4

See, e.g., O’Toole, 295 F.3d at 1037 (“Every slip and fall, every failure

to warn, every inspection and maintenance decision can be couched in

terms of policy choices based on allocation of limited resources. . . . Were

we to view inadequate funding alone as sufficient to garner the protection

of the discretionary function exception, we would read the rule too narrowly and the exception too broadly.”); Whisnant, 400 F.3d at 1184 (“we

decline to permit the government to use the mere presence of budgetary

concerns to shield allegedly negligent conduct from suit under the FTCA”)

(emphasis added). But see Nat’l Union Fire Ins. v. United States, 115 F.3d

1415, 1421-22 (9th Cir. 1997) (reconciling disparate holdings and concluding that only “[w]here 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.”). 

TERBUSH v. UNITED STATES 1551
is maintenance that falls beyond policy judgments or whether

it tends to the other end of the spectrum, which implicates

broader mandates of NPS’s policy regime. Merely establishing that the boundaries of maintenance are discretionary is not

sufficient. 

Although we recognize Gaubert’s presumption of actions

taken in furtherance of a regulatory regime’s goals to be

“grounded” in the policy of the regulatory regime, and are

aware that we do not need actual evidence of policy-weighing

in any given decision, there still must be some support in the

record that the decisions taken are “susceptible” to policy

analysis for the discretionary function exception to apply. On

this point, the government bears the burden. It is not sufficient

for the government merely to waive the flag of policy as a

cover for anything and everything it does that is discretionary

in nature. “Consideration of tenets that sweep so broadly is of

little use in the application of the discretionary function

exception.” Gotha, 115 F.3d at 181 (declining to see the

Navy’s mission to “provide a defense to the Nation or to

enforce its diplomatic efforts” implicated in a decision to

install a handrail on a staircase). Indeed, if all that were

required were a bald incantation of “policy,” then such an

approach would swallow the second prong of Berkovitz. 

In reviewing the extensive and varied case law in this circuit and elsewhere, we decline to adopt a rule that would eviscerate the original purpose of the statute by an overlygenerous reading of the policy-based prong of the exception.

As we noted in O’Toole, the FTCA was created by Congress

with the intent “to compensate individuals harmed by government negligence,” and as a “remedial statute,” it “should be

construed liberally, and its exceptions should be read narrowly.” 295 F.3d at 1037 (citing Kielwien v. United States, 540

F.2d 676, 681 (4th Cir. 1976)). Although much time has

passed, we should not forget the Supreme Court’s early observation that in adopting the FTCA, Congress sought to prevent

the unfairness of allowing “the public as a whole” to benefit

1552 TERBUSH v. UNITED STATES
“from the services performed by Government employees,”

while allocating “the entire burden” of government employee

negligence to the individual, “leav[ing] him destitute or grievously harmed.” Rayonier Inc. v. United States, 352 U.S. 315,

320 (1957). 

[12] Because the parties and the district court to some

degree lumped the question of maintenance together with the

other claims regarding design and construction, we cannot

determine whether the government met its burden to prove the

applicability of the exception as a matter of law. Accordingly,

we remand for further proceedings on this issue. 

2. Failure to warn of hazards

The second major claim relates to a failure to warn of the

rockfall hazard. Recognizing that identification of a mandatory duty is a threshold requirement, the Terbushes point us

to two documents: 1) the 1991 Loss Control Management

Guidelines, NPS-50 (“NPS-50”), which, they argue, required

the “park safety officer” to conduct site inspections and write

an incident report following accidents involving the public,

and dictated that following the May 1999 rockfall, Curry Village should have been closed and warning signs posted; and

2) the 1993 Resource Management Plans (“1993 Plans”),

which, they argue, required the creation of a geologic hazard

education program that would educate the public about known

potential dangers. 

Before turning to the specifics of those documents, we

review our case law on warnings. Most of our cases in the

post-Gaubert era have held that fulfilling the NPS’s decision

to warn the public of hazards in the national parks entails the

kind of policy weighing decision protected from judicial

review by the discretionary function exception. 

[13] We have interpreted the broad mandate of the Organic

Act, as well as NPS-50, to call upon the NPS to “balance

TERBUSH v. UNITED STATES 1553
access with safety, and take into account conservation and

resources in designing area plans,” in determining the safety

of particular areas, and choosing the “precise manner” in

which to warn the public of any hazards. Childers, 40 F.3d at

975-76. As noted in Childers, such decisions are “precisely

the kind the discretionary function exception was intended to

immunize from suit.” Id. at 976. See also Valdez v. United

States, 56 F.3d 1177, 1180 (9th Cir. 1995) (NPS officials

must employ their “discretion to balance, within the constraints of the resources available to them, a statutory mandate

to provide access with the goal of public safety”) (quoting

Childers, 40 F.3d at 926); Blackburn v. United States, 100

F.3d 1426, 1431 (9th Cir. 1996) (the “broad mandate to warn

the public of and protect it from special hazards involves the

exercise of discretion in identifying such hazards, in determining which hazards require an explicit warning and in

determining the precise manner in which to warn it of those

hazards.”) (citing Valdez, 56 F.3d at 1180); Faber v. United

States, 56 F.3d 1122, 1127 (9th Cir. 1995) (distinguishing

specific policies in Forest Service plans from the “general

operating procedures” in Childers, which required the NPS to

“weigh public access against visitor safety.”) (citing Childers,

40 F.3d at 974). 

Despite the wealth of cases underscoring that safety decisions by the NPS are the ultimate policy-driven discretionary

exercise, we acknowledge that our case law may not be in

complete harmony on this issue, which is perhaps the inevitable result of such a policy-specific and fact-driven inquiry.

For example, the Terbushes argue that their case is like Summers v. United States, 905 F.2d 1212 (9th Cir. 1990), where

we held that a failure to warn was not protected by the discretionary function exception. In Summers, a child was injured

while walking barefoot on hot coal remnants of a beach fire

that were left within a fire ring. Summers claimed the NPS

had been negligent in warning of the hazard posed by the hot

coals. The court concluded that there was “no evidence . . .

that NPS’s failure to post warnings . . . was the result of a

1554 TERBUSH v. UNITED STATES
decision reflecting the competing considerations of the Service’s sign policy,” and held that the Park Service’s failure to

identify and warn of the danger of the hot coals “resemble[d]

more a departure from the safety considerations established in

Service policies . . . than a mistaken judgment in a matter

clearly involving choices among political, economic, and

social factors.” Id. at 1215-16. 

The Terbushes overlook, however, that courts since Summers, which was decided before Gaubert, have marginalized

its importance. To begin, Summers has been distinguished on

its facts. See, e.g., Blackburn, 100 F.3d at 1432 (observing

that, unlike in Summers, the NPS did have to consider policy

issues in identifying hazards and choosing how to warn). We

also distinguished Summers in Lesouer, noting that while

Summers may have only involved “safety consideration under

an established policy, rather than the balancing of competing

policy considerations,” other cases could be more complicated. Lesouer v. United States, 21 F.3d 965, 970 (9th Cir.

1994). Such a case presented itself in Faber, where we elaborated upon Lesouer and limited application of the discretionary function exception to situations “where the government

was required to engage in broad policy-making activities or to

consider unique social, economic, and political circumstances

in the course of making judgments related to safety.” 56 F.3d

at 1125. 

[14] As in Blackburn, we also distinguish Summers from

the present case. Whereas the court in Summers stated that

there was no evidence5 that the NPS’s failure to post warnings

5Of course, after Gaubert we do not need actual evidence that policyweighing was undertaken. See Gaubert, 499 U.S. at 324-25. Other courts

have also limited Summers’ impact on this very basis. See, e.g., Rosebush

v. United States, 119 F.3d 438, 443-44 (6th Cir. 1997) (noting that the

rationale in Summers was rejected the following year in Gaubert and conflicts with Sixth Circuit case law); see also Donald N. Zillman, Protecting

Discretion: Judicial Interpretation of the Discretionary Function Exception to the Federal Tort Claims Act, 47 ME. L. REV. 365, n.94 (1995)

(observing that this portion of Summers’ holding is “probably invalid”

after Gaubert). 

TERBUSH v. UNITED STATES 1555
“was the result of a decision reflecting the competing considerations of the Service’s sign policy,” here, in contrast, the

mandates of access, conservation and safety were at issue in

the NPS’s decisions in identifying the scope of the rockfall

hazard as well as the appropriate means of warning the public.

The district court correctly observed that “the more fundamental defect with Plaintiffs’ argument is that the decision

cannot be boiled down to a simple recognition of the existence of some hazard. The entire process, including identifying hazards, determining which hazards require a warning,

and determining how and when and where the warning should

proceed, involves discretion.” As in Childers, Valdez and

Blackburn, this process of identifying and responding to hazards in the wild implicates the NPS’s broader policy mandates

to balance access with conservation and safety. Summers,

then, appears out of step with our other NPS failure to warn

cases decided post-Gaubert. 

a. NPS-50 

[15] Turning to the specific policies that the Terbushes

claim mandated particular actions by the NPS, we observe

that NPS-50 is designated as “Management Guidelines” that

have wide application to all territory under NPS control.

Reading through the document, one is hard pressed to find

any mandatory requirements applicable here. That discovery

should be no surprise in light of the document’s intended role

as a policy guideline. The guidelines are also largely inapplicable to the rockfall activity at Glacier Point Apron because

the rockface is not an NPS “facility” or “operation,” nor was

the event here an “employee accident” covered by the guidelines. 

[16] The first chapter of NPS-50 states that the program

objectives of the NPS’s Safety and Occupational Health Program include “[p]roviding for the safety and health of the

public (visitors) from recognized hazards in NPS operations,

on NPS lands, and in NPS facilities . . . .” The Terbushes fix1556 TERBUSH v. UNITED STATES
ate on the phrase, “on lands,” to argue that the NPS-50

includes a natural rockface like Glacier Point, but this general

language must be read within the context of the document as

a whole, which is reasonably interpreted to apply to all facilities and operations, not natural rock features. 

[17] We agree with the district court’s findings that “these

provisions are not reasonably interpreted to apply to recreational activities at rock faces, which are not NPS ‘facilities

or operations.’ ” It is easy to see how a definition as expansive as the Terbushes posit is impractical in light of the difficulties in “inspecting” and “abating” hazards in the millions

of acres of open space, wilderness and vast terrain over which

the NPS exercises authority.6 Nor do we agree with the Terbushes’ interpretation of the NPS-50 as applicable to nonemployee accidents. Thus, even the provisions of Chapter 22

of the NPS-50, which explicitly relate to visitor safety, suffer

from both shortcomings: they relate to inspection of

employee-caused accidents in NPS “workplaces,” “facilities”

or “operations.” 

Accordingly, the Terbushes’ assertion that the park safety

officer was required to be involved in the inspection of any

incidents of rockfall activity glosses over both the fact that the

Glacier Point Apron is not a “facility,” an “operation,” or a

“workplace,” and the fact that the May 1999 rockfall was not

an “employee accident[ ]/incident[ ]” in the language of the

guidelines. 

The second deficiency of the Terbushes’ claims is that

NPS-50 vests park officials with considerable discretion in

6For example, Chapter 5 indicates that “[e]very NPS facility, operation

and/or workplace, including employee housing, shall be formally

inspected annually. More frequent inspections will be conducted when

there is an increased risk of accidents.” It then elaborates examples of

those facilities to be inspected more frequently, such as those “used for

overnight accommodations and group gatherings.” 

TERBUSH v. UNITED STATES 1557
determining the appropriate scope of investigations and warnings, as is evident from the overall nature of the NPS-50 as

a broad set of guidelines and the more specific references to

inspection of hazards. The introduction to NPS-50 explicitly

states that it is a “guideline” that has been prepared to provide

“field units and office managers” with enough information “to

develop a comprehensive safety and occupational health program,” but that “each area must design its own safety and

occupational health effort based on local circumstances and

operations.” 

[18] Contrary to the Terbushes’ suggestion, the statement

in Chapter 1 that “requirements in this document are mandatory unless otherwise stated,” cannot alone convert otherwise

discretionary decisions into specifically mandated prescriptions for action or criteria for decision making. See Sabow v.

United States, 93 F.3d 1445, 1453 (9th Cir. 1996) (“presence

of a few, isolated provisions cast in mandatory language does

not transform an otherwise suggestive set of guidelines into

binding agency regulations.”) (citing Chamberlin v. Isen, 779

F.2d 522, 525 (9th Cir. 1985)). This wide-ranging policy

manual is one of general application providing individual park

managers with broad policy guidelines that the Department of

Interior expects them to elaborate with park-specific policies.

The same can be said of the more specific “requirements”

cited by the Terbushes. The clearest statement of the duty to

inspect accidents is repeated in several places, notably in

Chapters 6 and 22, which reiterate the same language: “All

accidents should be investigated, including accidents involving property damage only. The extent of such investigations

shall reflect the seriousness of the accident or of the potential

for reoccurrence.” There can be little doubt that this provision

is discretionary on its face. 

Even Chapter 22, which directs NPS policy towards the

visiting public, does not contain mandatory and specific provisions that rob the NPS of discretion. This section contains

1558 TERBUSH v. UNITED STATES
the broad directive that “the NPS region and park should

establish a public safety program that minimizes the potential

for injury, illness, death and/or property damage to the public

while they are visiting NPS facilities,” and also includes a

section entitled, “Educational Materials, Signs, Programs,”

where it states that “[a]ll areas will provide any special materials, signs and programs to alert the public of potential dangers.” 

The broad nature of these provisions stands in sharp contrast to the park safety provisions in Faber, which the Terbushes argue controls our decision. In Faber, Faber dove

approximately twenty feet from a rock ledge, sustaining

injury. Prior to the accident, the Forest Service had promulgated several “site management plans” for the Tanque Verde

Falls, one of which required it to “develop a sign plan, formulate an on-going media program to inform the public, and provide a presence at the Falls to verbally warn the public,

enforce the laws, and record use patterns.” 56 F.3d at 1123-

24. None of these specific steps were taken before the accident. We held that the discretionary function exception did

not apply because one of the plans “listed three specific and

mandatory measures that the Forest Service was to take in

order to increase safety at the Falls.” Id. at 1126. We added,

“[b]ecause the challenged conduct . . . was in direct contravention of a specifically prescribed federal policy, the discretionary exception does not apply.” Id.

[19] Our most recent failure to warn case is also instructive.

In Navarette v. United States, 500 F.3d 914 (9th Cir. 2007),

we held the Army Corps’ failure to warn campers of a dangerous “drop-off” to be in contravention of a mandatory and specific policy to warn visitors of such dangerous terrain

conditions. Significantly, unlike here, the policy in Navarette

explicitly listed drop-offs as a hazardous terrain condition that

required warning. Id. at 918-19. In contrast, as here, the NPS

had to exercise its discretion in determining the extent of the

rockfall hazard and the appropriate response to it. The kinds

TERBUSH v. UNITED STATES 1559
of decisions involved in making this assessment are protected

by the exception. See Alfrey, 276 F.3d at 565 (the exception

“protects agency decisions concerning the scope and manner

in which it conducts an investigation so long as the agency

does not violate a mandatory directive.”) (quoting Vickers v.

United States, 228 F.3d 944, 951 (9th Cir. 2000) (emphasis

omitted). Similarly, the NPS’s decision to close Glacier Point

and the extent to which it later chose to warn about rockfalls

at Glacier Point were discretionary judgments as well.7

[20] The Terbushes’ claim at heart is that the NPS should

have done more following the May 1999 rockfall to warn the

public, but this is precisely the kind of determination that is

protected from our review. But in the context of this case,

Childers, Valdez, and Blackburn all protect from judicial

review NPS decisions determining the scope of hazards and

the appropriate means to alert the public to the danger they

pose. Cf. Elder v. United States, 312 F.3d 1172, 1183-84

(10th Cir. 2002) (questioning what could ever “constitute an

adequate warning,” and noting that park management must

“judge the totality of the safety package in terms of its impact

on other public policies besides safety.”). Under the Gaubert

standard, the decisions made at Yosemite about warning the

7The Terbushes argue that the rockfall hazards had been identified since

at least 1980, when the 1980 General Management Plan recommended

removal of the Curry Village cabins. They argue further that the failure to

remove the cabins was a violation of a mandatory and specific policy calling for their removal. We cannot find any mandatory or specific directives

within that plan, which is a broad visionary document foreseeing developments at Curry Village and elsewhere in Yosemite over “approximately”

ten years at “estimated costs” of over $150 million. Indeed, the document

refers to itself as “propos[ing],” rather than mandating, a shift in the location of some of the present facilities. Creating and executing a multimillion dollar development plan not only involves an element of choice,

but it also involves the balancing of the kinds of policy considerations

exempted by the discretionary function exception. “The presence of a few,

isolated provisions cast in mandatory language does not transform an otherwise suggestive set of guidelines into binding agency regulations.”

Sabow, 93 F.3d at 1453 (citing Chamberlin, 779 F.2d at 525). 

1560 TERBUSH v. UNITED STATES
public were “grounded” in the NPS’s policy regime. See Gaubert, 499 U.S. at 325.

b. Resource Management Plan—Hazard

Education Program

The other policy cited by the Terbushes is the 1993

Resource Management Plan, which they claim mandated a

one-year period for implementing a geologic hazards education program based on the observation that “there exist serious geologic hazards to human safety along park roads and in

Yosemite Valley in particular.” Notably, the introductory

paragraph on “Management Objectives,” states: “[t]hese management objectives are used to guide the development of the

management strategies, action plans, and project statements in

subsequent sections of the Resource Management Plan.”

(emphasis added). Thus, while a specific time-frame of one

year is mentioned in the section addressing geologic hazards,

viewed in its proper context, the one-year time frame is not

mandatory as it falls within a chapter on “objectives,” i.e.,

broad goals meant to “guide” park managers in implementing

the management plan, and thereby calling upon them to continue to exercise their discretion in implementing the plan in

the various subject areas it addresses. 

[21] Even if the one-year deadline were viewed as a mandatory and specific directive, the NPS retained discretion in

how to implement this directive, which would necessitate further decisions and actions protected by the discretionary function exception. See, e.g., Miller, 163 F.3d at 595 (standards

and procedures did outline certain requirements for fire suppression, but did “not eliminate discretion because they do not

tell firefighters how to fight the fire,” i.e., in a “specific manner and within a specific period of time.”). As the court in

Miller noted, “[t]he existence of some mandatory language

does not eliminate discretion when the broader goals sought

to be achieved necessarily involve an element of discretion.”

Id. Accordingly, we do not read the provisions calling for a

TERBUSH v. UNITED STATES 1561
hazard education program to create a mandatory and specific

duty, and conclude that the discretion the NPS had in implementing this program is “susceptible” to the policy considerations of the regulatory regime established by the Organic

Act. 

AFFIRMED IN PART; REVERSED IN PART and

REMANDED. Each party shall bear its own costs on appeal.

1562 TERBUSH v. UNITED STATES