Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW MOLLOY, Chief Judge. I. INTRODUCTION On February 25, 1996, 35-year-old Brian Musselman was involved in a snowmobile accident on a snowmobile trail north of West Yellowstone, Montana, which caused him catastrophic brain injuries. Mussel-man was an expert snowmobiler who had been inducted into the Michigan Snowmobile Hall of Fame. His entire life was involved with snowmobiles. In addition to racing, he was an executive of a family-owned business that designed, developed and manufactured parts and devices for production snowmobiles as well as racing snowmobiles. He was earning nearly $350,000 a year. As a result of this devastating accident, he went from being a robust, energetic business executive and expert snowmobile racer to being a helpless human form, unable to care for himself in any manner, confined to feeble grunting and interminable days of expensive medical care and treatment. Lori Oberson, legal guardian of Brian, and Kimberlee Musselman, natural mother of Brian’s daughter Devon Musselman, brought this suit against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. alleging negligence on the part of the United States for failing to correct or warn of an allegedly dangerous trail condition on the groomed snowmobile trail where Musselman was injured. The United States filed a third-party complaint against Jamie Louis Leinberger, Patrick B. Kalahar, and Tim A. Johnson alleging that their negligence caused Musselman’s injuries. Default was taken as to Tim Johnson. Patrick Kalahar settled with the Plaintiffs prior to trial and was dismissed by this Court. A bench trial was held January 7-15, 2002. After considering the evidence and testimony submitted at trial, along with the parties’ arguments and proposed findings of fact and conclusions of law, I find the following parties negligent: Brian Musselman, 10%; Jamie Leinberger, 50%; U.S. Forest Service, 40%. I find that Brian Musselman was damaged in the amount of $11,296,800 and that Devon Musselman was damaged in the amount of $600,000. Consequently, Brian Musselman’s damages are reduced by $1,129,680, leaving damages caused by others in the amount of $10,167,120. Of that amount, the Forest Service is obligated to pay Musselman $4,518,720, while Leinberger is obligated to pay him $5,648,400. Furthermore, under Montana law the Forest Service is obligated to pay $266,666.67 of damages to Devon Musselman, and Leinberger is obligated to pay her $333,333.33. My decision is based on the following Findings of Fact and Conclusions of Law. II. FINDINGS OF FACT 1. Brian Musselman, a resident of Michigan, was born on March 13, 1961. He was married to Kimberlee Musselman (Beam) and is the father of their daughter, Devon Musselman, who was five years old at the time of the accident. Devon was born on November 7,1990. 2. Musselman was an expert snowmo-biler, and was inducted into the Michigan Snowmobile Racing Hall of Fame in 1998. Vol. IV 214:7, 217:1-5, 220:16-17. 3. Patrick Kalahar, Jamie Leinberger and Tim Johnson are also residents of Michigan, and were with Musselman at the time of the accident. All three were accomplished snowmobilers. Vol. I 42:17-24, 115:22-25. Leinberger Depo 7:6-16. 4. On Friday, February 23, 1996, Mus-selman and Kimberlee traveled with a group of friends from their home in Michigan to West Yellowstone, Montana, to snowmobile in the surrounding area. 5. On Saturday, February 24, 1996, the group rented snowmobiles from Westgate Station in West Yellowstone, Montana. Vol. I 118:1 — 4. The group then split up into smaller groups, with most members snowmobiling in Yellowstone National Park. There is no evidence that any of the group members rode the Big Sky Trail or the accident site on Saturday the 24th. 6. On Sunday, February 25, 1996, the riders again separated into small groups and rode both in the Park and in the Gallatin National Forest. Vol. IV 148:3-24; Vol. I 44:7-20, 119:24-120:20. They did not ride the Big Sky Trail during the day on February 25, 1996. Vol. I 44:7-20, 119:24-120:20,121:5-7. 7. After returning to West Yellowstone, Brian and Kim Musselman shopped for about an hour, after which they came back to the hotel and sat in the hot tub. Vol. IV 148:22-149:16. Musselman drank one or two beers, after which he returned to his room and took a nap. Vol. IV 149:17-150:1. After waking, he drank a Diet Coke. Vol. IV 150:2-6. 8. The group gathered later in the evening to travel to Eino’s, a restaurant approximately 8^ miles north of West Yellowstone. The men rode their snowmobiles to Eino’s, while the women took a shuttle. Vol. IV 150:7-12. It was dark when the snowmobilers left West Yellowstone for Eino’s. Vol. 1 122:12-22. 9. Musselman, Johnson and Kalahar rode together to Eino’s via a groomed snowmobile trail managed by the U.S. Forest Service, the Big Sky Trail. Vol. I 47:23-51:21. The trail crosses Cougar Creek just south of the accident site. This crossing forced the snowmobilers to ride their machines onto the highway shoulder at this point. Musselman, Kalahar and Johnson stayed on the shoulder of the highway for the short distance remaining to Eino’s and completely bypassed the accident site. Vol. I 48:8-18, 49:20-50:3, 51:11-52:2. Musselman, Johnson & Kalahar were riding competitively on the way to Eino’s, at speeds in the low 50s to upper 60s. Vol. I 73:1-75:15, 76:11-12, 77:7. 10. At Eino’s, the three men joined their group, which numbered about 20. They cooked steaks, drank beer, and told stories. Vol. I 53:20-54:20. 11. At about 10:00 p.m., the group left Eino’s. Musselman and Johnson were the first to leave on their machines, followed by Kalahar and Leinberger, among others. Vol. I 56:24-57:22. They left Eino’s, crossed Highway 191, entered the Big Sky Trail and proceeded southbound toward West Yellowstone, Montana. Vol. I 157:25-158:9. No one in the party had ever traveled this portion of the trail between Eino’s and Cougar Creek. 12. Leaving Eino’s, riders cross the highway, then come to a stop before climbing the highway cut to get to the trail system. They then turn and ride between a fence and the highway to where Duck Creek crosses the trail. Riders then get up on the highway, stop, cross the road culvert and drop back down. They then climb up a plowed road with another stop sign, cross the plowed road, and follow the trail, which is flat, smooth, and essentially parallel to the highway, for about a quarter of a mile until they get to the accident site. Vol. I 215:21-217:17; Vol. III(ML), 797:13-798:9; Ex. 1004. 13. According to Johnson, he and Mus-selman took off, and then Musselman “sped away,” and Johnson lost sight of him. Vol. I 131:1-5. Johnson testified that his machine accelerated more slowly than Musselman’s, and that he “backed off’ his speed initially because his visibility was reduced by the snowdust from Mus-selman’s machine. Vol. I 131:7-132:12. Johnson then resumed his speed. Vol. I 131:22-24. Although he does not recall his exact speed, he testified that the 440 Polaris he was riding was capable of going in the mid-50s. Vol. I 118:5-12. He also testified credibly that he was in control of his snowmobile. Vol. 1 139:13-20. 14. The accident occurred about 1 3/4 miles south of Eino’s. Ex. 1004(map). Johnson testified that he did not slow down as he approached the hill because he didn’t know it was there. Vol. I 139:9-12. He testified that he was “going along and all of a sudden, like I say, the bottom dropped out and I remember going through the air. I hit the ground pretty hard; it knocked the wind out of me. And I coasted up the trail through some thicket there and ended up next to the highway.” Vol. 1135:15-19. 15. Forest Service law enforcement officers were notified of the accident at 10:30 p.m. Vol. II 454:12-455:4. 16. The Big Sky Trail is a heavily trafficked snowmobile trail that is the primary route by which snowmobilers ride to West Yellowstone from the north. The hill where Musselman was injured is about eight miles north of West Yellowstone, just north of Cougar Creek. The trail runs parallel to Highway 191, just east of the road. The road is visible from the trail. 17. The West Yellowstone trail system is “very well-signed.” Vol. II 287:16. The trails are signed with stop signs, “stop ahead” signs, and speed limit signs, as well as signs warning of hazards identified by the Forest Service in its “warranting” process, junction signs informing people that the trail will be changing, and “reassurance markers” that tell nighttime riders they are still on the trail. Ex. 1004(map); Vol. II 424:20-25. If the trail goes through a gate, the gate posts are signed with “object open” markers so that snow-mobilers don’t hit a post that may be buried in the snow. Vol. II 426:8-13. 18. The hill precipitously drops 17 feet over approximately 80 feet. Vol. II 273:23. This equates to an 11.5 degree pitch, Vol. Ill 581:12, or a 25 percent slope. 19. The last quarter-mile of the trail heading south toward the accident site is primarily straight, flat and groomed, with no significant curves. Vol. I 135:11-13, 199:3-15. Kalahar described it as “pure flat, flat-running, very smooth.” Vol. I 58:24-25. The trail had just been groomed that night. Vol. II 415:11-14. 20. Musselman negotiated the hill on his snowmobile and landed safely just west of the trail at the bottom of the hill. Ex. 28. Johnson was next over the hill, and his sled crashed, although he did not fall off of his sled. Musselman got off of his sled, perhaps to assist Johnson or warn the coming riders, and began walking or running back across the trail. Vol. V 99:17-100:4, 108:17-109:10. At that instant, Kalahar and Leinberger came flying over the hill side by side. One of them hit Musselman in the head, causing catastrophic brain injuries. 21. Kalahar’s snowmobile became airborne as he crested the hill. Vol. I 61:9-11. Kalahar was going faster than Lein-berger and flew past him in the air. Vol. I 97:5-11. He clamped on the brakes, which caused his skis to tilt down, but he could not control the sled because he was not on the ground, and crashed. Vol. I 62: 7-13. He was not injured, but his sled was damaged. Vol I 62:17-63:2. 22. Kalahar admitted that he saw the 45 mph speed limit signs on the trail. Vol. I 69:10-14. He estimated that he was traveling 50-55 mph as he approached the hill. Vol. I 70:2-3. Leinberger testified that he was traveling about 55 mph at the time he reached the hill, at “full throttle,” and was being passed by Kalahar at the time of the accident. Depo. Leinberger 61:6-62:3. Kalahar was passing Leinber-ger as he crested the hill. Vol. I 60:6-8, 95:5-7; Depo. Leinberger 57:5-14, 145:16— 19. He was going faster than Leinberger, and flew past him in the air. Vol. I 97:5-11. Leinberger’s sled tumbled and crashed. Vol. VI 146:7-15,147:2-9. 23. Johnson testified that visibility going over the hill was “clear.” Vol. I 136:14-17; 152:14-153:9. Kalahar testified to the same, Vol. I 112:23-24, although Leinberger testified that his visibility was hampered by snowdust from Johnson’s machine. Depo. Leinberger 65:2-7. Kevin Breen, the government’s expert on human factors and accident reconstruction, testified that Kalahar and Leinberger were likely traveling in Johnson’s snow dust, and that their attention would have been distracted by the passing maneuver going on between them as they crested the hill. Vol. VI 114:3-11. 24. After being hit, Musselman was lying on the groomed portion of the trail between his sled and Leinberger’s sled, with his head facing south, away from the hill. Ex. 28; Depo. Leinberger 67:23-25; Vol. I 168:13-19. Kalahar, whose sled traveled farther than Musselman’s and Le-inberger’s, first went to check on Leinber-ger, and then went to Musselman. Vol. I 63:13-24. Kalahar described Musselman as having no abrasions or visible blood, but said he was struggling and gurgling. Vol. I 64:1-7. 25. Musselman’s snowmobile was located beyond the bottom of the hill immediately to the west side of the groomed portion of the trail. Ex. 28 (diagram); Vol. 467:11-473:21. Terry Smith, a Forest Service accident investigator who was one of the first responders that night, determined the path of Musselman’s machine based upon tracks in the snow leading to the machine. Yol. II 472:7-22, 453:10. The machine sustained no damage whatsoever. Vol. Ill 735:13-15, 736:6-737:15; Vol. II 525:11-19. A. Accident Investigation 26. Forest Service law enforcement officers Mark Reinking and Terry Smith arrived at the scene shortly after the accident. Reinking, a law enforcement officer for the Idaho Panhandle National Forest on two-week special detail to the Hebgen Lake District, was in charge of the initial investigation. He prepared and submitted the official Forest Service Report of Investigation which documents the investigative efforts and findings. Ex. 28. 27. Although Officers Smith and Reinking were on the scene shortly after the accident, the investigation was poorly conducted. Officer Smith took notes that night, but has since lost them. Vol. II 456:11-15. They took only two photographs of the scene that night, but no photographs of any of the individuals involved, and no measurements that night. They did not secure the area to prevent the snowmobiles from being moved. Vol. II 503:12-16. They did not interview any witnesses that night, or if they did, they have lost their notes of the interviews and. have no independent recollection of what was said. They ordered a blood sample drawn from Brian Musselman but left it in a refrigerator for three days, rendering it useless. Vol. IV 100:7-102:3. They did not order blood drawn from Kalahar, Lein-berger or Johnson. They did not return to Eino’s to interview witnesses about the party’s alcohol consumption or behavior. Vol. II 535:20-536:1. 28. In fairness to the officers involved, they had just returned from investigating an avalanche fatality when they received the call about the Musselman accident. Vol. II 509:8-13. Undoubtedly they were tired. Nonetheless, the lack of evidence from the scene of the accident has made subsequent determination of what occurred that night far more complex than it otherwise would have been. 29. In addition, Officer Reinking testified that he contacted the Forest Service claims department early on in the investigation because of comments he overheard at the accident site about the lack of signing at the hill. Vol. II 512:2-515:23. In fact, Reinking met with Forest Service claims agent Mickey McCorkle to go over his final report prior to filing it. Vol. II 517:20-518:2. In the end, the Forest Service investigation provides no answer to the question of who hit Musselman. Nonetheless, this type of “cooperative report,” reflecting the Forest Service’s awareness of the potential legal issues that might arise because of the accident and Musselman’s catastrophic injuries, affects my perception of the investigative report’s reliability. 30. Officers Smith and Reinking returned to the accident scene the morning after the accident to take photographs and measurements. Vol. II 523:12-20. Officer Smith testified that to the best of his knowledge, Musselman’s snowmobile was in the same place as it was the previous night. Vol. II 470:24-471:4. Further, he noted that the tracks leading to Mussel-man’s snowmobile indicate that his machine was not moved. Vol. II 504:8-23. He noted the possibility that Leinberger’s snowmobile was moved. Vol. II 488:5, 504:4-7. Officer Robert Morton, who visited the accident site the day after the accident with Officers Reinking, Smith, and Walker testified that the tracks in the snow indicated Leinberger’s machine had been moved about three feet west of the trail. Vol. Ill 733:13-734:25. 31. Smith measured the distance from the top of the hill to the bottom of the hill at 73 feet. Ex. 28. He measured Lein-berger’s snowmobile 162 feet from the crest of the hill, and Musselman’s snowmobile 192 feet from the crest. Yol. II 470:12-14, 471:9-12; Ex. 28, 9. He also took measurements from the top of the hill to the location of windshield parts found by the investigators, but he never matched the windshield pieces to particular machines. Vol. II 469:20-470:6, There is no measurement of where Johnson’s machine landed, as he rode his machine back to West Yellowstone after the accident. However, his testimony indicates that he landed at the bottom of the hill and coasted toward the highway, then turned around and returned to find Musselman injured. Vol. 1137:3-7. 32. Kalahar’s and Leinberger’s machines sustained major damage. Ex. 28 (photos and diagram). Leinberger’s sled was just north of Musselman’s, on the west side of the trail, and still in the groomed part of the trail. Ex. 28. Forest Service investigator Robert Morton inspected Le-inberger’s snowmobile at the scene, and later at the rental shop. He noted that it suffered extensive damage to the front end, the windshield, handlebars, tunnel area, the skis, cowling, rear bench rest and motor mounts. Vol. III(ML) 749:6-12, 754:10-758:20. Officer Morton also inspected Kalahar’s machine and testified that the “tunnel had been sprung,” the motor mounts were broken and, as a result, the motor was twisted, the windshield was damaged, and the handlebars were bent. Vol III(ML) 752:7-14, 758:24-763:22. 33. Johnson was the only rider to ride his machine back to the motel that night. No investigator looked at Johnson’s machine the night of the accident. The next morning, Johnson bought and installed a new windshield and louver. Vol. I 144:3-16. Johnson testified that he hit the windshield and damaged it. Vol. I 168:23-169:1. According to the rental agreement, the windshield and louver were damaged when Johnson rented the machine; however, Johnson testified that the windshield had a small crack in it when he rented it, and a “big chunk out of it” after the accident. Vol. I 179:17-22. Rather than pay the deductible, he decided to fix it himself. Vol. 1 180:3,184:7-9. I find his explanation credible. 34. No one was ever cited in connection with this accident. Vol. II 532:20-22. B. Injuries 35. Bonnie Gafney, a certified EMT and supervisory park ranger for Yellowstone National Park, was one of the emergency responders to arrive on the scene. Vol. V 85:17-18. Gafney is certified to provide advanced life support, and responded under a mutual aid agreement between the Park and West Yellowstone. Vol. V 85:10-13. Upon arriving, she asked who was most seriously injured, and was directed to Musselman. Vol. V 85:21-24. She testified that Musselman was unconscious and unresponsive, and “appeared to be seriously injured.” Vol. V 86:19-21. After getting Musselman into the ambulance, Gafney observed labored breathing, clenched teeth, and bruising on the forehead and under the eyes. She concluded that he had a serious closed head injury. Vol. V 88:7-15. 36. Musselman was transported by ambulance to West Yellowstone, and flown by helicopter to the Eastern Idaho Regional Medical Center in Idaho Falls, Idaho. Le-inberger suffered a severe hip injury requiring subsequent surgery. He was transported by ambulance from West Yellowstone to a relay point in Idaho, then transported to Eastern Idaho Regional Medical Center in Idaho Falls, Idaho. Ka-lahar suffered an ankle injury and was transported by ambulance with Musselman to West Yellowstone and thereafter by ambulance to the Idaho facility with Leinber-ger. Johnson suffered no injury requiring medical attention. 37. There were no eyewitnesses to the accident. However, paramedics Alan Harper and Bonnie Gafney testified that, at the scene, Kalahar stated that he had seen Musselman walking or running towards the hill. Vol. V 99:22-100:4, 108:17-109:10. Gafney also testified that Kalahar said he had seen Musselman park his sled on the side of the trail and get off, and while he was walking towards the hill, another snowmobile hit him in the head. Vol. V 94:6-9, 99:17-100:4. 38. All witnesses agree that Mussel-man was first over the hill, with Johnson following right behind, and Kalahar and Leinberger coming over essentially together a few moments later. Johnson did not think he hit Musselman because he was the only one who rode his snowmobile back to West Yellowstone, and he stated that if he had hit Musselman, “I’d have known it.” Vol. I 143:8-12, 166:7-20. Ka-lahar testified that he positively did not hit Musselman. Vol. I 100:21-24. Leinber-ger testified that he does not recall hitting Musselman because he “didn’t hit an object that was going to move.” Depo. Lein-berger 71:2-16. Rider Bill Bourdow was following Leinberger from Eino’s. He testified that he did not believe Leinberger could have hit Brian because he saw Lein-berger’s machine flipping and Brian lying flat. Depo. Bourdow 60:24-62:10. 39. Musselman’s helmet was damaged. Ex. 1013. Kevin Breen, the government’s human factors and accident reconstruction expert, testified that he found (1) black marks on the right rear part of the helmet consistent with the type and color of rubber used on snowmobile tracks; (2) a two-inch diameter crack encompassing the area of the marks; (3) similar cracking in a circular pattern on the opposite side of the shell; (4) cracking on the right side with paint missing; (5) pronounced cracking on the right side of the chin bar; and (6) similar cracking, but not as pronounced, on the left side. Vol. VI 105:20-107:1; Ex. 1013. 40. Breen’s expert opinion based upon the damage to Musselman’s helmet, his injuries, and the evidence is that (1) a snowmobile track hit Musselman’s helmet while Musselman was in the trail, not on his snowmobile; (2) the impact came from the right to left side. Vol. VI 112:1-23. He also testified that Kalahar, Leinberger, or Johnson could have struck Musselman, and that it is impossible to determine which was more likely. Vol. VI 167:9-17. 41. Breen opined that there are two possibilities why Leinberger’s snowmobile tumbled. One is that Leinberger applied his brakes before becoming airborne, which would have caused deceleration that forced the nose of his snowmobile down. Alternatively, Leinberger may have hit Musselman while airborne, which caused the nose of his snowmobile to go down and begin tumbling. Vol. VI 114:19-115:16. The evidence relating to Kalahar hitting Musselman is based on the alignment of the riders coming over the hill. If Lein-berger and Johnson were on the same line and just missed Musselman, then Kalahar would be the only person who could have hit him. Breen testified that Kalahar’s line of travel, based on where his snowmobile came to rest, is consistent with the line necessary to have contacted Mussel-man. Additionally, Kalahar’s testimony that he hit the ground and bounced a second time is consistent with him hitting Musselman in the trail and then the ground. Vol. VI 115:17-116:12. Breen also testified that if the line Leinberger and Johnson were on was the line of travel necessary to hit Musselman, then Johnson would have hit Musselman first. Based on the lack of evidence, Breen testified that he could not rule Johnson out. Vol. VI 117:9-22. 42. Based upon the testimony of Kala-har, Leinberger and Johnson, as well as expert testimony, I find it most likely that Musselman was first over the hill, and landed his snowmobile without injury to himself or damage to his machine. Johnson came over the hill next, probably going 50-55 mph, landed hard and headed away from the accident site toward the highway. Musselman then got off his machine, either to find out how Johnson was or to warn the coming riders of the steep hill, when he was hit by a snowmobile driven by either Kalahar or Leinberger. C. Alcohol 43. EMTs Gafney and Harper testified that they smelled alcohol at the scene. Vol. V 74:2-3; Vol. V 92:9-12. Gafney also testified that Musselman “smelled strongly of alcohol.” Vol. V 98:8-12. Investigator Smith also smelled alcohol, but reported that he did not see anyone who appeared intoxicated. Vol. II 481:15-18, 481:23-482:13. 44. At Officer Reinking’s request, EMT Gafney drew a blood sample from Brian Musselman at the scene of the accident. Vol. II 542:6-12. No blood was ever drawn from Kalahar or Johnson. Le-inberger’s blood was not drawn until 3 a.m., at which time his blood alcohol was .10. Vol. V 134:6-19. Musselman’s blood alcohol at 1:35 a.m. was .03. Vol. V 121:5-123:11. For reasons explained below, Musselman’s blood alcohol at the scene was never established. Furthermore, based on the events that took place and the expert opinions on the effects of alcohol, discussed infra, Musselman was not impaired at the time of the accident. 45. Gafney gave Musselman’s blood sample to Bob Pearson, a deputy with the Gallatin County Sheriffs Office. Vol. V 98:13-21. Forest Service Special Agent Duane Moe testified that he obtained the sample from Pearson three days later, on Feb. 29, 1996, and transported it to the Eastern Idaho Regional Medical Center in Idaho Falls, Idaho. Vol. IV 100:7-20. The lab technician at the hospital would not test the blood because it had separated and could not be tested. Vol. IV 101:13— 23. Moe testified that he did not refrigerate the blood. Vol. IV 101:8-10. The sample was never tested. Vol. IV 102:2-3. Consequently, the Court must look to both eyewitness and expert testimony to establish blood alcohol content of all four riders at the time of the accident. 46. Johnson testified that he consumed two beers at Eino’s. Vol. I 157:3-5. Forest Service investigator Robert Morton testified that during his interview with Johnson, Johnson told him he consumed three or four beers while at Eino’s. Vol. Ill 771:2-8, 789:22-790:9. 47. Kalahar testified that he consumed two beers at Eino’s. Vol. I 54:18. Lein-berger testified that he possibly consumed eight beers at Eino’s, and regardless of how many he consumed, he felt impaired. Depo. Leinberger 50:22-51:22. During an interview with Forest Service investigator Duane Moe, Leinberger stated that he consumed four or five beers at Eino’s. Vol. IV 104:12-14. Musselman drank a few beers at Eino’s, and a shot of schnapps just before leaving the restaurant. Vol. IV 152:15-152:25. 48. Brian Hock, a member of Mussel-man’s group, testified that Musselman’s steak caught fire at Eino’s, and Musselman dumped part of his beer on the steak to put out the fire. Depo. Hock 63:14-21. Hock sat with Musselman and Kalahar at dinner and saw them drink three or four Bud Lights. He remembered Kalahar buying the first round, Musselman buying the second, him buying a third round, and testified there might have been a fourth. Depo. Hock 28:15-29:15. He stated that he saw Musselman and Kalahar “drink three for sure.” Depo. Hock 63:9-13. 49. Investigator Reinking testified that he suspected alcohol was involved in the accident. Vol. II 549:13-15. He testified that he believed the whole group was drinking. Vol. II 556:4. However, he agreed that because Musselman safely negotiated the hill, drinking did not affect his ability to ride. Vol. II 555:22-556:8. Although Reinking agreed that interviewing employees at Eino’s would have been a good idea, he never contacted anyone at Eino’s to determine how much alcohol the members of the party had consumed. Vol. II 535:20-536:1. 50. Because the testimony about alcohol is equivocal, both parties presented expert testimony regarding Musselman’s and Leinberger’s blood alcohol. No expert testimony was given regarding Johnson’s or Kalahar’s blood alcohol content at the time of the accident; therefore, I must look solely to the testimony presented to make a finding about whether they were intoxicated and, consequently, impaired in a way that contributed to the causing the accident. 51. The government relied upon Dr. Richard Rech, a neuropsychopharmacologist, for expert opinion regarding blood alcohol content. Plaintiffs presented rebuttal evidence through Dr. Bryan Finkle, a forensic toxicologist. I found Dr. Fin-kle’s testimony to be substantially more credible than Dr. Rech’s. Dr. FinMe, the chief consulting toxicologist for the National Football League, is board certified as a forensic toxicologist and has published more than a hundred papers in peer-reviewed journals on the topic. He was the president of the International Association of Forensic Toxicologists for three years, and received the Rolla Hanger Award for outstanding lifetime achievement in forensic toxicology. Vol. IV 2:4-5:22. His credentials are impeccable, and his testimony was clear and persuasive. 52. Both experts gave an opinion as to Musselman’s probable blood alcohol content at the time of the accident based upon the blood alcohol reading of .03 at 1:35 a.m. Both experts assumed, based upon peer-reviewed literature, that a person’s blood alcohol will begin to drop at an average rate of .02 per hour after they have stopped drinking. Both experts discounted the two beers Musselman drank prior to leaving the hotel for Eino’s, because the alcohol would have been cleared from his body by the time he arrived at Eino’s. Vol. V 132:8-11; Vol. IV 12:21-13:2. 53. Dr. Rech’s error, as explained by Dr. Finkle, was to assume that the rising blood alcohol rate is the same as the falling blood alcohol rate. According to Dr. Fin-kle’s expert testimony, the falling rate can be assumed because it is a linear constant, but the rising rate cannot because it depends on the rate of drinking, the persons’s metabolism, and whether and what they were eating. Vol. IV 8:6-10:25. He also testified that intravenous fluids do not significantly change blood alcohol content over time, because the fluids migrate to the watery compartment of the body and do not stay in the blood. Vol. IV 23:26:7. I find Dr. Finkle’s testimony highly credible and persuasive. 54. Dr. Finkle opined that Mussel-man’s blood alcohol content was still rising at the time of the accident, given the evidence that he drank a shot of schnapps shortly before leaving Eino’s and the scientific fact that blood alcohol rises for 45 minutes to an hour after the last drink is consumed. Vol. IV 11:1-8. He assumed that Musselman consumed two beers at Eino’s, and a shot of schnapps just before leaving Eino’s. Vol. IV 13:3-9. 55. Dr. Finkle testified that blood alcohol rises based upon factors including the rate of drinking, the size and weight of the person, and any food recently eaten. He further testified that while the slope of the rising curve varies significantly based upon these factors, the slope of the falling curve — the rate of alcohol clearance from the blood' — is a relatively constant average of .02 percent per hour. Additionally, the maximum blood alcohol will occur within about an hour after the last drink is consumed. Vol. IV 8-10; 17:23-18:12. 56. Therefore, Dr. Finkle offered an opinion only as to Brian Musselman’s maximum blood alcohol, which he assumed occurred at about 11:15 p.m., or one hour after the last drink. Vol. IV 11:11-21. In his expert opinion, Musselman’s maximum blood alcohol, at about 11 p.m., would have been about .04. Vol. IV 13:20-25. Moreover, Dr. Finkle’s testimony conclusively established that Musselman’s blood alcohol would have been less than the maximum at the time of the accident, Vol. IV 26:3-7, although he made clear that he could not determine how much less it would be. Vol. IV 22:24-23:3. Thus, he opined that alcohol did not impair Brian Musselman that night. Vol. IV 27:21-28:8. Dr. Finkle did not offer an opinion about any possible impairment of Kalahar, Leinberger or Johnson. 57. Plaintiffs’ human factors expert Robert Kennedy also expressed his opinion that alcohol did not impair Brian Mussel-man that night. Vol. Ill 601:21-22. He based his reasoning on Finkle’s report. Vol. Ill 603:20-24. He testified that a blood alcohol of .03 to .06 would not affect a person’s ability to perceive the slope of the approaching hill. Vol. Ill 604:1-18. I find this testimony credible and persuasive. 58. Dr. Rech opined that Leinberger’s blood alcohol at the time of the accident was .215. Vol. V 135:6-22. He testified that a blood alcohol content of .09 would affect vision and judgment. Vol. V 139:1-3. 59. Dr. Finkle did not rebut Dr. Rech’s testimony about Leinberger, although his rebuttal testimony regarding the effect of IV fluids on blood alcohol content is relevant. Nonetheless, even if Dr. Rech’s overestimates Leinberger’s blood alcohol, a preponderance of the evidence establishes that Leinberger was impaired by alcohol at the time of the accident. 60. Based upon the testimony of the parties regarding alcohol consumption, I find it more likely than not that Johnson and Kalahar were also impaired by alcohol, although not to the extent that Leinberger was. 61. As for Musselman, I find Finkle’s testimony persuasive and conclude that Musselman’s blood alcohol was about .03 at the time of the accident. The evidence persuades me Musselman was not drinking as much as the others. I further conclude, based on the fact that Musselman safely negotiated the hill as well as on expert testimony, that alcohol did not significantly impair Brian Musselman that night. Whatever Musselman’s nominal blood alcohol was, his judgment was not impaired and he was fully able to operate his snowmobile. D. Speed 62. The Forest Service was aware as early as 1990 that high-speed riding — in excess of 60 mph — was taking place on the trails around West Yellowstone. Vol. I 204:24-205:22; Vol. Ill 673:11-19. In fact, that was one of the primary reasons the Forest Service created the initial warranting process. Vol. I 202:15-24, 203:15-17, 204:24-206:1. 63. The Forest Service is aware that the type of trails that encourage speed are straight, smooth, flat stretches. Vol. I 204:2-23, 214:13-215:7. The Forest Service is also aware that well-groomed trails are conducive to higher speeds. Vol. I 204:21-23. The snowmobile trail maps indicated the days and times when trails would be groomed, and a recording at the groomer shed provided the same information to callers. Vol. II 416:2-21. The Forest Service also knows that curves in a trail tend to reduce speed. Vol. II 364:2-4. 64. Both Leinberger and Kalahar admitted they were traveling in excess of the speed limit, at 50-55 mph. Vol. I 61:6— 62:3, 112:24-113:2. This is consistent with the damage done to their sleds. Rider Bill Bourdow testified that he was traveling about 35-40 mph from Eino’s to the accident site. Bourdow Depo 50:2-8. 65. The testimony about Musselman’s speed is much different. I find that he took off from Eino’s quickly, and was riding fast enough to stay in front of everyone else. However, I also find that the evidence supports a finding that he was not going more than 45 mph as he came over the hill. That speed, while shown by the trial proof to be unsafe, is the speed limit posted by the Forest Service for this trail. 66. Richard Hermanee, Plaintiffs’ accident reconstruction expert, plotted the trajectory of a snowmobile coming over the hill at various speeds. Ex. 519; Vol. II 292:10-293:9. His projections were confirmed by the distances traveled by Forest Service employees attempting to recreate the accident. Vol. II 292:25-293:5. Her-manee concluded that Musselman was probably going about 40-45 mph as he came over the hill. Vol. II 306:12-307:12. Even Defendant’s expert Breen testified that Musselman could have been traveling less than 35 mph. Vol. VI 137:18-138:16. 67. Although the evidence as to the riders’ speeds is conflicting, I find it likely that Musselman was riding within the speed limit as he crested the hill. I further find by a preponderance of the evidence that Kalahar, Leinberger, and Johnson were traveling between 50-55 mph. E. The Hill 68. The hill over which the accident took place drops 17 feet over a 75- to 80-foot distance. Vol. II 273:14-23. This equates to an 11.5 degree grade, Vol. Ill 581:12, or a 25 percent slope. Vol. VI 42:25-43:1. The Forest Service planned on reducing the grade of the hill prior to the accident. Vol. I 241:12-243:1. As of the date of trial, it had not yet done so because of this lawsuit, but intends to once the case is over. Vol. I 245:17-25. 69. The trail runs directly parallel to Highway 191. Vol. I 216:5-24, 218:11-18. About a quarter mile north of the accident site, the trail and the highway are at the same elevation. Approaching Cougar Creek, both begin to drop in elevation. The road drops over a longer distance than the trail; therefore, the grade of the trail is much steeper than the grade of the road. The trail and highway converge again at Cougar Creek. Vol. Ill 799:22-800:13. 70. At the time of the accident there was no sign warning of the upcoming hill or telling riders to slow down. The posted speed limit was 45 mph. The speed limit was implemented in January 1996, a month before Musselman’s accident. Ex. 18. It was the first time the Forest Service had ever placed a speed limit on the West Yellowstone trails. Vol. II 420:7-13. 71. Numerous witnesses established that the steepness of the hill was impossible to discern until the crest of the hill. Rider Bill Bourdow, who was following Leinberger from Eino’s at 35-40 mph, did not recognize the hill until he was on the very top of the crest. Depo. Bourdow 60:24-62:10. Kathy Russell, a member of the Musselman party, went over the hill the morning after the accident and described the sensation as a “tickle belly.” Kathy Russell Depo 36:14-19. Tim Johnson testified that nothing indicated the approaching hill. Vol. I 141:16-19. Based on over 30 years of experience, Johnson testified that drop-offs of this nature are always signed. Vol. I 142:7-12. Kalahar testified that nothing alerted him of the upcoming hill. Vol. 1113:6-9. In 30 years of snowmobiling experience, he has encountered hills with similar types of grades, but has never encountered one on a groomed trail that was not marked. Vol. I 42:20-24, 61:16-22. 72. Even Forest Service witnesses confirmed the steepness and surprise of this hill. Officer Robert Morton rode over the hill the day after the accident at varying speeds. He testified that going over the hill at 50 mph “was a rush,” and that he wouldn’t want to do it again. Vol. Ill 777:11-778:11. Officer John Walker testified that based on his experience patrolling the West Yellowstone trail system, he could not recall seeing such an abrupt hill anywhere else on the groomed portion of the trails. Vol. III(ML) 785:25-787:8. Forest Service technician Ron Naber, who has ridden the entire 130 miles of the groomed West Yellowstone trail system every year for a number of years, said he is not aware of another hill on the system with a more abrupt slope that is not posted with a warning sign. Vol. II 414:5-415:7. 73. The government presented two witnesses who testified that the hill was manageable at 45 mph. I find the testimony of these two witnesses is not persuasive because of their interest in the case as well as the totally different circumstances of their experience riding over this hill as contrasted with the circumstances of the accident. I am more persuaded by the evidence presented by the government’s videotaped reenactment, discussed next, and expert testimony interpreting that video. F. The Forest Service Video 74. A day or two after the Musselman accident, Forest Service investigator Robert Morton videotaped Officer Mark Reinking riding over the hill during the day at speeds of 35 mph, 45 mph, and 50 mph. Ex. 501; Vol. II 275:7-280:23. At 35 mph, the skis of the sled came off of the ground, but the sled remained under control. Vol. II 276:2-278:1. At 45 mph, the entire sled briefly lifted off of the ground, and the rider’s body lifted up off of the seat. Vol. II 278:10-22. The same phenomenon occurred at 50 mph. I conclude a snowmobile traveling 10 mph less than the posted speed limit would unexpectedly leave the ground. 75. Richard Hermanee, Plaintiffs’ safety and reconstruction expert, is a certified snowmobile safety instructor, a technical advisor to the New York State Department of Parks and Recreation, a member of the New York State Snowmobile Safety Coordinating Group, a diplomat of the American Board of Forensic Examiners, a fellow of the College of the American Board of Forensic Examiners, consulted on the New York State Trail Design Manual, and has conducted extensive testing of snowmobile handling factors, including coefficients of friction, deceleration properties, acceleration properties and handling characteristics. Vol. II 267:9-271:15; Ex. 126. He has worked closely with numerous private and governmental entities dealing with snowmobile safety considerations. The United States has previously retained Hermance’s services in the areas of snowmobile accident reconstruction and snowmobile safety, including the investigation of a snowmobile fatality near Yellowstone National Park. I found his testimony credible. 76. Hermanee testified that the hill is a dangerous condition. The danger is proved in part by the Forest Service video showing a snowmobile leaving the ground, the sMs starting to flail, and the rider losing control of the machine at 35 mph, 10 mph below the posted speed limit. Yol. II 277:3-14. Hermanee testified that when a snowmobile leaves the ground “you can’t steer the snowmobile, you can’t brake the snowmobile, you can’t accelerate the snowmobile, your buttocks comes off the seat and you go from having one center of mass to having two centers of mass interacting with each other, those being the snowmobile and the body.” Vol. II 276:15-20. Because the rider in the Forest Service video was aware that the hill was coming, he prepared for it and was able to maintain control of the machine. Vol. II 278:21-22. 77. Hermanee provided credible testimony that the sole factor determining whether a snowmobile will leave the ground going over a hill is the speed of the snowmobile at the crest. Vol. II 297:23-302:8. Whether the rider is accelerating or braking is irrelevant — what counts is the speed of the machine at the time it crests the hill. As shown by the government’s own video, if the speed is 45 mph or greater, the machine will lift 2-3 feet off of the ground. Vol. II 279:1-9. 78. The Forest Service riders were aware the hill was coming, and were therefore able to prepare for it. Even Her-manee testified, “I wouldn’t mind going over that at 50 miles an hour if I knew it was coming; it would probably be fun. But to get it in the middle of night, when you’re not ready for it, is a big deal.” Vol. II 328:5-11. 79. Earl Applekamp, a Forest Service employee and expert for the government, stated that after he was asked to testify in this ease, he went to the scene and rode the trail on a snowmobile. Vol. V 230:23-231:1. After driving over the accident site between 35-45 mph during day and nighttime conditions, he concluded the hill could be safely negotiated. Vol. V 227:9T22, 228:21-229:2. I find Applekamp’s testimony regarding the warranting process credible, but I find his testimony regarding negotiation of the hill to be biased, unpersuasive, and discounted by the government’s own video showing the sleds leaving the ground slightly at 35 mph, and markedly at 45 mph, and the fact that he was aware of the hill and could prepare for it. 80. I And the government’s videotape and Hermance’s explanation of it highly persuasive of the danger of this hill at speeds of 45 mph and higher, especially when ridden at night by a person unaware of its approach. The Forest Service rider was aware of the approaching hill and nonetheless became airborne. I find it wholly credible that riders unfamiliar with the terrain would similarly become airborne, but would have a much more difficult time reacting because of the shock and surprise of the event. No one in the Mus-selman party had traveled this section of the trail prior to the accident; thus, no one had notice of the hill, and no one could prepare for it. G. Expectancy and Reaction 81. “Expectancy” takes into account driver expectations in signing. Vol. II 290:18-20. The Forest Service Manual, EM-7100-15, § 11.1.2, reflects this concept: Driver expectancy and behavior on Forest Development Roads is also influenced by what was experienced on the previous section of road. Studies have shown that what a driver has just encountered is what the driver expects on the next portion of the road. This includes the road surface, width, alignment, and overall maintenance condition of the road as well as the presence or absence of signs and other traffic control devices. If the road has inconsistencies from what a prudent driver would normally expect, the use of Traffic Control Devices should be considered to reduce the “surprise element” created by the need for an unexpected change in the road. Ex. 509. Thus, riders’ expectancies on a trail system are formed by their prior experiences on the system. Vol. II 314:19-315:2. 82. Robert S. Kennedy was plaintiffs’ human factors specialist. Dr. Kennedy is a certified human factors professional who has authored or co-authored more than 400 scientific and technical publications addressing night vision, visual motion perception, response/reaction time, postural equilibrium and balance, and the effects of alcohol on human performance. Dr. Kennedy has received numerous commendations for his work in human factors, including awards and grants from the Aerospace Medical Association and the United States Navy. Dr. Kennedy’s expertise in human factors includes many years of service to the U.S. Navy and NASA working with naval aviators and astronauts involving performance testing and human factors engineering. In specific reference to the effect of alcohol on human performance, he is a committee member of the International Counsel on Alcohol, Drugs and Traffic Safety; a member of the Behavioral Toxicology Society; and has taught and been frequently published on the subject. Vol. Ill 567:1-570:17; Ex. 129. 83. I found Dr. Kennedy’s testimony regarding riders’ expectations of an approaching slope and ability to react credible and persuasive. I specifically found his testimony that the surrounding terrain, which is level, would create an expectation that the upcoming hill is going to be a gentle slope rather than the steep slope and precipitous drop it actually is. 84. Kennedy conducted tests at the accident site to determine what the riders were able to observe from the trail. Vol. Ill 570:20-571:6. He testified that a pitch of up to 4 degrees would be gentle, and expected in the absence of a sign. Vol. Ill 581:10-11. The slope herein is 11.5 degrees, which Kennedy described as “substantial.” Vol. Ill 581:11-12. According to Kennedy, a rider traveling 35 mph has a reaction time of 1.6 seconds, and therefore needs a distance of 82.2 feet to react. Vol. Ill 586:24-587:5. As he explained, “you could stand at the crest of the hill and look down the hill. But if people are operating moving vehicles, the decision to not go over that hill or in what way to go over that hill has to be made at some significant distance back from where that crest is.” Vol. Ill 581:4-8. According to Kennedy, headlights will show the crest about 150 feet before the hill, with black beyond. Vol. Ill 581:22-582:3. But importantly, what a rider sees 150 feet before the crest is the same whether the grade of the hill is 4 degrees or 11.5 degrees. Vol. Ill 582:4-9. 85. Moreover, if the rider expects a typical slope of 4 or even 6 degrees, an 11.5 degree slope becomes very steep because it is so unexpected. Vol. Ill 582:17-583:10. 86. Hermanee testified that the first sensation a rider would have as his snowmobile left the ground would be of “the bottom dropping out.” Vol. II 280:13-14. This is confirmed by various witnesses who testified that this is what they felt going over this hill. See supra. Vertical velocity is 32 feet per second squared. Vol. II 280:22-23. Thus, it would take about a second for a snowmobile to drop the 17 feet grade of this hill. Id. As explained by Hermanee, “with the time this person can even really understand what’s going on, they’re going to slam down on the ground already.” Yol. II 280:15-16. 87. Government expert Earl Applek-amp drove about 80 miles of the trails in preparation for his testimony, and rode this hill at night as well as during the day at various speeds. He testified that as he approached the hill at night, he could see that the illuminated snow turned to black. He could also see the trees and brush beyond the hill; so, as a prudent driver, he slowed down to determine the grade of the hill. Vol. VI 58:16-59:10. The difficulty I have with his testimony as well as other government testimony regarding the safety of this hill is that it overlooks the fact that a rider who knows the hill is coming can prepare for it. Applekamp’s testimony does not establish any objective facts about the expectations or reaction time of a nighttime rider unfamiliar with the terrain. It simply establishes that a rider who knows the hill is coming can safely negotiate it, which weighs more in favor of the plaintiffs’ claim that a warning sign is needed. H. Need for a Sign 88. The riders in the Musselman party had been riding the West Yellowstone and Yellowstone National Park trails for two days prior to this accident. If those systems included other hills like this one, and those hill were not signed, their expectancy would be that there could be more hills like this one. Vol. II 315:3-6. However, there were no other hills like this on the groomed portion of the trails system that were not signed. Vol. II 414:5-415:7; Vol. III(ML) 785:25-787:8. 89. This trail system is “very well-signed.” Vol. II 287:16. 90. Dr. Kennedy explained the basis for his opinion that the riders would expect a steep hill to be signed: “One had to do with the amount of regulatory materials and maps and signage that was there. The other had to do with the fact that [the trail] was freshly groomed. The other had to do with the fact that these [trails] are well-known and people had gone from a long distance to go on these trails. All of that was part of what I used to consider how expectancies would be formed.” Vol. Ill 613:19-25. As explained by reconstruction expert Hermanee, ‘You’re on a trail system that’s well-signed, it’s maintained, it’s groomed, and you’re going down a nice, flat, straight section of it; you don’t expect to run into any type of hazardous situation, whether it be a hill, sharp turn, railroad track, bridge, whatever, without having a warning sign for it.” Vol. II 291:1-6. 91. Snowmobile signing standards are established by the agency in charge of signing. Vol. II 286:20-25. There is no uniform guideline. Vol. II 322:9-24. What is most important, according to Her-manee, is consistency within the particular trail system. Vol. II 287:6-10. As he explained, “If a person rides and they see nice, groomed trails and they see signs for hazards, you have to make sure that all of the hazards are signed.” Vol. II 287:8-10. 92. In Hermance’s opinion, “if the snowmobile is going to go in the air at or near the speed limit, either the hill should be taken out or the best way to remedy it would be to put up a warning sign.” Vol. II 277:23-278:1. The proof here is that a snowmobile going 10 mph less than the posted speed limit will unexpectedly leave the ground and become airborne. 93. I find through all of these witnesses that the smooth, groomed straight trail as well as the adjacent level terrain created a reasonable expectation on the part of riders unfamiliar with the trail that the hill, although discernible, would be a gentle slope of 4 degrees rather than a steep slope of 11.5 degrees. Moreover, I find that the presence of signs throughout the trail system created a reasonable expectation that a hill of unexpected steepness would be signed. In the absence of a warning sign, the hill was a hazard. 94. By maintaining the trail as a highly groomed straightaway, the Forest Service made a hazard when it created an expectation that either the grade would not change drastically or a sign would warn users of a sudden change in grade. In fact, the straightaway encouraged riders to ride fast. The fact that Leinberger, Kala-har, and Johnson were traveling 5-10 mph faster than the posted speed limit was completely foreseeable. I. Prior Accident 95. On the night of February 9, 1996, 16 days prior to Musselman’s accident, two snowmobilers riding south toward West Yellowstone crested the same hill and were surprised by a snow grooming machine coming up the hill toward them. Ex. 23. The riders were Richard Panzer and Adam Lurie. The investigating officer reported that the snowmobilers were riding 35-40 mph, which he stated was too fast for the conditions. Vol. IV 120:9-122:19. 96. The accident report states: a. “Panzer crested a small hill and Groomer No. 4 was just coming out of the bottom and starting up the same hill that Panzer had crested. Panzer and party did not see the lights on the groomer until they crested the hill.” b. The weather was “clear,” but visibility was only “fair” because the accident occurred at night. c. Estimated speed was “35 to 40 miles per hour.” d. Alcohol was not a contributing factor. e. No citations or warnings were issued and that there was no violation or prosecution for the accident. Ex. 23. The Panzer accident report was received for the limited purpose of proving the Forest Service was on notice of a hazard at the hill. Vol. IV 117:15-118:16. Specifically, this accident provided notice to the Forest Service that 1) the steepness of the slope makes it impossible for southbound riders to see beyond the crest of the hill, and 2) the posted speed limit was too high for foreseeable nighttime use. 97. The seat of Panzer’s snowmobile was damaged, but no one was injured. Ex. 23. 98. Claude Coffin, assistant ranger of the Hebgen Lake District, testified that he and counsel for the United States attempted to recreate the Panzer accident a few years ago by arranging for a groomer to drive north on the Big Sky Trail at nighttime. Vol. Ill 652-654. The groomer is equipped with two headlights, similar to car headlights, and has a flashing light on top. Vol. Ill 656:8-23. Coffin observed the recreation, standing about 100 feet north of the crest of the hill. Vol. Ill 655:1-4. When the groomer was at the bottom of the hill, he could not see it. Vol. Ill 656:4-7, 665:13-23. He could see illumination from the groomer’s lights “at times.” Vol. Ill 665:24-25. 99. The agency’s reenactment of the Panzer accident serves as independent confirmation that the sight distances at this site were impaired by the steepness of the hill. The accident provided actual notice to the Forest Service that the hill posed a serious visibility hazard. 100. The government contends that the Panzer accident proves that a snowmobile cresting the hill at 40 mph has sufficient time to avoid a serious collision with an object in the trail. The fact is, however, that Panzer was unable to avoid colliding with the groomer. A groomer is a huge machine, about 10-12 feet tall. Vol. Ill 656:8-23. Had Panzer collided with a person in the trail rather than a machine, it is reasonable to conclude the collision would have been far more serious, and caused injury — perhaps serious — to the person. J. Forest Service Duties 101. The portion of the trail where the accident took place is a designated Forest Service snowmobile trail. Yol. 1 194: 20-22. The Forest Service had sole responsibility for identifying and correcting hazards. Vol. I 200:5-14; Vol. VI 4:19-6:17. 102. Once the Forest Service identifies a hazard on the trail system, it must eliminate it. Vol. I 199:15-200:4. It may change the trail grade, alignment, or location, separate traffic, or take other measures to eliminate the hazard. Vol. III(ML) 707:10-14. It may also choose to eliminate the hazard by placing an appropriate warning sign on the trail. Vol. I 199:21-25; Vol. III(ML) 707:8-15. 103. Plaintiffs introduced numerous sections from the Forest Service Manuals and the Manual on Uniform Traffic Control Devices to establish the Forest Service’s duty to take particular actions in regards to this hill. However, the testimony of Donna Sheehy, Civil Engineer in the Transportation Operation and Maintenance section of Engineering for the Northern Region of the Forest Service, persuades me that the duties established by these manuals are broad, and do not mandate that any particular action be taken at this hill in the absence of a hazard having been identified by the Forest Service. 104. Mrs. Sheeh/s credentials are extensive. Ex. 27, 2:18-3:19; Vol. Ill 679:16-681:20, 712:6-713:4. She was responsible for the last two rewrites of EM-7100-15 (Standards for Forest Service Signs and Posters) and is involved in the most recent revision. Vol. Ill 704:25-705:16. She testified that if Forest Service personnel determine something is a hazard, they must eliminate it by changing the trail grade, alignment or location, or installing a warning sign. Vol. Ill 706:25-707:15. She also testified that EM-7100-15 and the Manual on Uniform Traffic Control Devices (MUTCD) are mandatory only insofar as they dictate the type of sign that must be used once a decision has been made. to place a sign. Vol. Ill 705:24-706:12. 105. The Forest Service is given broad discretion in identifying hazards. One method of identifying hazards on a trail system is to “warrant” the trail by riding it. The Forest Service is not required to warrant a trail. Vol. Ill 710:21-25. The warranting process is highly recommended, but not mandatory. Vol. Ill 710:21-25. Moreover, nighttime warranting is not required by any manual. Vol. Ill 711:23-712:5. 106. I find through this testimony that the Forest Service did not have an explicit mandatory duty to take action with respect to this hill. Had it identified this hill as a hazard through the warranting process, it would have been required to take some sort of corrective action. But in the absence of such identification, the manuals imposed no duty on the agency. 107. However, the lack of an explicit mandatory duty is separate from the duty to use reasonable care imposed upon the Forest Service by Montana law, M.C.A. § 27-1-701, and is recognized by the Montana snowmobile statute. M.C.A. § 23-2-653(2). This duty is absent only if the hill herein is an “inherent risk” of snowmobiling. See discussion infra. K. Trail Warranting Process 108. The Forest Service process of identifying hazards on trails is referred to as “warranting.” Jonathan Kempff, the program manager for the Gallatin National Forest trail program, described it as “the process of identifying the hazards that our average, prudent, reasonable rider would not expect based on a spectrum of users that we had out there.” Vol. I 212:7-9. The warranting process is designed to take into account the “broad spectrum of users, all the way from beginning riders all the way to high-end riders that tend to go faster.” Vol. I 206:22-9. 109. To warrant a snowmobile trail, Forest Service employees ride the trail at 35 mph during the day and note hazards. Once a hazard is identified, the Forest Service can close the trail, correct the hazard, or warn the user. Vol. I 199:15-23. 110. The trail herein was warranted in 1993 by Forest Service employees Ron Naber and Mary Vandiver. Vol. II 422:12-18. Naber and Vandiver rode the trail north and south, during the day, at 35 mph. Vol. II 422:3, 423:10-14. They did not identify this hill as a hazard during the 1993 warranting process. 111. The Forest Service does not warrant trails at night, although it is aware that riders use these trails at night. Vol. II 422:4-7. It accounts for nighttime riders by using reflectorized signs, and by assuming that drivers will adjust their speeds to account for