Cleveland v. United States (546 F. Supp. 2d 732, 2008)

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

PHYLLIS J. HAMILTON, District Judge.

On November 28, 2007, the court heard argument in defendant’s motion to dismiss the above-entitled action for lack of subject matter jurisdiction and alternative motion for summary judgment, and plaintiffs’ motion for partial summary judgment. Plaintiffs appeared by their counsel Michael S. Henderson, and defendant appeared by its counsel Katherine B. Dowling. Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant’s motion to dismiss; GRANTS defendant’s alternative motion for summary judgment; and DENIES plaintiffs’ motion.

INTRODUCTION

This is a case brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., alleging willful failure to guard or warn against a dangerous condition or structure. Plaintiffs are Sheila Cleveland, the widow of Dale Cleveland, and Chelsea Cleveland and Tyson Cleveland, the children of Dale Cleveland.

Dale Cleveland died from injuries he received in October 2003 when he drove his vehicle up and over an embankment and into the Union-Zaar mine shaft. The Union-Zaar mine shaft is an unmarked, abandoned vertical mine shaft located in the Smith River National Recreation Area (“SRNRA”), which is part of the Six Rivers National Forest in Del Norte County, California. The Six Rivers National Forest falls under the jurisdiction of the United States Department of Agriculture (USDA) Forest Service (“the Forest Service”).

The United States seeks an order dismissing the case for lack of subject matter jurisdiction, based on the “discretionary function” exception to the FTCA. In the alternative, the United States seeks summary judgment on its third and eighth affirmative defenses, asserting that the doctrine of assumption of the risk precludes plaintiffs from establishing negligence, and that any failure to warn was not willful.

Plaintiffs seek summary judgment on the United States’ ninth affirmative defense, asserting the discretionary function exception to the FTCA, on the ground that the exception does not apply in this case.

BACKGROUND

A. Factual Background

On October 11, 2003, Dale Cleveland was “off-roading” (also referred to as “four-wheeling”) with his adult son Tyson Cleveland and a group of friends in the SRNRA. Dale Cleveland was driving his 1970 Toyota Landcruiser, and Tyson Cleveland was riding in the passenger seat. The remaining members of the group were distributed among three other vehicles.

Late in the afternoon, the vehicles were traveling on Del Norte County Road 305, in the Altaville area of the SRNRA. Dale Cleveland’s vehicle was in the lead. At one location, where County Road 305 passes across privately-owned land, two primitive dirt and gravel trails lead off County Road 305 — one extending to the west, referred to by the parties herein as the “upper access route,” and one (a little further south) extending to the southwest, referred to as the “lower access route.” The upper and lower access routes do not appear on the Forest Service’s SRNRA map. Slightly north of the upper access route, and extending southeast off County Road 305, is another dirt and gravel trail, which is designated on the SRNRA map as an “OHV” (off-highway vehicle) route.

The vehicles turned off County Road 305 onto the dirt and gravel lower access route. The lower access route is approximately 8.5 feet wide, with a surface consisting of rocks and boulders of varying sizes and shapes. Approximately 1/2 mile down the lower access route is a fork in the road. To the right, the trail inclines up a hill, where, in approximately 1/4 mile, it joins up with the upper access route, in effect making a loop that goes back to County Road 305.

When Dale Cleveland’s vehicle reached the fork, he stopped to wait for the rest of the group to catch up. In a declaration filed in support of plaintiffs’ motion, Tyson Cleveland states, “After waiting a couple of minutes, we decided it would be fun to drive up the right fork of the road a little way to see where it went.” Dale Cleveland drove up about 100 feet, and then stopped.

According to Tyson Cleveland, Dale Cleveland then started to back up, having decided there was no good place to turn around. At that point, the rest of the vehicles pulled up behind Dale Cleveland’s vehicle. Dale Cleveland then resumed driving forward to look for a place to turn around. He drove up the trail, to the place where it joined the upper access route.

At the point where the two trails joined, the Clevelands saw what Tyson Cleveland describes as “looking] like a turn out, leading up a short embankment to a plateau above the roadway.” Tyson Cleveland “thought this would be a good place to turn around,” and also “thought it would be fun to drive up the embankment in the Land Cruiser.”

Thus, rather than turning to the left along the' relatively level intersecting upper access route, Dale Cleveland made a 90-degree turn to the left, crossed the upper access route at a perpendicular angle, and drove his vehicle straight up the steep embankment, which extends upward at approximately a 48-degree angle. The embankment is approximately 10-12 feet wide, with two large rocks embedded roughly in the center. The vertical rise from the trail to the top of the embankment is approximately 8 feet.

According to Tyson Cleveland, his father drove up “with the engine idling” — a maneuver known as “crawling,” in which the driver puts the vehicle in low gear and lets the engine pull the vehicle along. The vehicle’s tires were “aired down,” to “[pjrobably like 5 pounds pressure in each tire, so basically flat, to where they’re just wrapping around everything, just grabbing on.”

Dale Cleveland’s friend Jerry Bachman was following the Cleveland vehicle, and testified that Dale and Tyson Cleveland were looking back behind them and smiling as they climbed up the embankment. Tyson Cleveland testified that as the Land Cruiser climbed the embankment, they could not see what was in front of them, and that neither he nor his father stopped the vehicle to get out to see what was up at the top of the embankment.

At the top of the embankment, approximately 20 feet from its base at the side of the trail, Dale Cleveland drove forward, whereupon the Land Cruiser plummeted straight down into the Union-Zaar mine shaft. The opening of the mine shaft is approximately 3-4 feet in from the top of the embankment, and is approximately 12 feet in diameter. The shaft itself is approximately 70 feet deep. At the time of the accident, the mine shaft was not fenced off or enclosed, or signed or marked in any visible way. Dale Cleveland was killed in the crash, and Tyler Cleveland was seriously injured.

Tyson Cleveland testified in his deposition that Dale Cleveland had been drinking alcohol the day of the accident. Tyson Cleveland stated that he saw his father drink “a beer” while they were waiting at the fork for the other vehicles to catch up. He claimed that Dale Cleveland was not drinking alcohol at any time while he was driving. He did not know whether his father had more than the one beer.

A subsequent blood test indicated that Dale Cleveland had a .10 blood alcohol level, although plaintiffs dispute the validity of the blood test. Numerous beer cans and some marijuana were recovered from the vehicle after the accident. California Highway Patrol Officer Rick Barry, who conducted the accident investigation, concluded that the cause of the accident was that Cleveland was under the influence of alcohol, in violation of California Vehicle Code § 23152(a).

Members of the party, including Tyson Cleveland, were aware that numerous abandoned mines were located in the area where they were four-wheeling, and they were headed to see some double-decker abandoned mine shafts the day of the accident. However, Tyson Cleveland had never investigated the area where the October 11, 2003 accident occurred for possible hazards before riding there, and he did not believe his father had ever driven in that area.

Tyson Cleveland also testified that he had not consulted the SRNRA visitor map, which shows the designated Forest Service roads in the SRNRA, including the designated OHV routes, and did not believe his father had. In fact, Tyson Cleveland had never looked at the SRNRA map prior to the accident. He states in his declaration that he believed that “we were allowed to 4-wheel on any road in the NRA that was not blocked off, gated or had a sign stating that the road was not to be used.”

He testified that “[w]e never carried a map with us” because “the adventure of four-wheeling was just to go out and be on an adventure, not to look at the map and tell us exactly where we are going. We wanted to go out there and find new stuff.” He testified that it was more fun off-roading on challenging terrain, and that “[sjometimes it’s scary ... [Y]ou don’t know if you want to do that, but — you might roll or you — anything could happen, so you’ve just got to be aware.”

Tyson Cleveland admitted that going up the steep embankment would be considered “hill climbing” or “rock crawling,” and testified that he goes “hill climbing” every time he goes OHV riding. He testified that he and his father did not discuss whether to climb the embankment, and that the decision to do so was his father’s alone (although he also states in his declaration that he thought the top of the embankment would be a good place to turn around).

B. The National Forest System

The National Forest System (“NFS”) “consists of units of federally owned forest, range, and related lands throughout the United States and its territories, united into a nationally significant system dedicated to the long-term benefit for present and future generations.” 16 U.S.C. § 1609(a). The National Forests were established and are administered “for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528.

Congress has directed the Forest Service to balance a wide variety of competing policy objectives in its administration of public lands. The Forest Service administers and manages the NFS lands in accordance with the Multiple-Use Sustained-Yield Act of June 12, 1960, 16 U.S.C. §§ 528-81; the Forest and Rangeland Renewable Resources Planning Act of August 17, 1974, 16 U.S.C. §§ 1600-14; and the National Forest Management Act of October 22, 1976, 16 U.S.C. §§ 472a, 476, 500, 513-16, 521b, 576b, 1600-02, 1604, 1606, 1608-14. See 36 C.F.R. § 200.3(b)(2).

Under the Multiple-Use Sustained Yield Act, the Forest Service is required to consider the “best and most judicious means” of implementing its policy priorities, including reforestation, fire prevention, preventing soil erosion, and preserving wildlife. 16 U.S.C. §§ 531, 551, 581j, 583. The Forest and Rangeland Renewable Resources Act and the National Forest Management Act provide additional direction to the Forest Service in the management of federal lands, and specifically require the Forest Service to consider the economic and environmental impacts of actions. Id. § 1600, et seq.

C. Roads in the National Forest System and the Smith River National Recreation Area

The NFS has a nationwide forest transportation system. The forest transportation system was created in accordance with a mandate from Congress, which declared that

the construction and maintenance of an adequate system of roads and trails within and near the national forests and other lands administered by the Forest Service is essential if increasing demands for timber, recreation, and other uses of such lands are to be met ... and that such a system is essential to enable the Secretary of Agriculture ... to provide for intensive use, protection, development, and management of these lands under principles of multiple use and sustained yields of products and services.

16 U.S.C. § 532.

Through the NFS forest transportation system, the Forest Service manages the roads under its authority and control. These “Forest System roads” are also called “system roads.” In addition, there are “Forest System trails” or “system trails” that are also part of the forest transportation system. The “system roads” and “system trails” are also referred to as “Forest System routes” or “system routes.”

Congress provides funds for road maintenance on NFS roads. Construction appropriations are generally used to maintain system roads and routes, in accordance with the Forest Service Handbooks, including the Service-Wide Appropriation Use Handbook, FSM 6509.11g.

Numerous other routes, roads, and remnants of roads on NFS lands are not managed by the Forest Service as part of its transportation system. These are referred to as “non-system roads” or “non-system routes.” There is no requirement that non-system roads be gated or signed, and maintenance and signing of non-system roads is not an authorized use of the funds appropriated for road maintenance in the NFS.

The Six Rivers National Forest includes the SRNRA, and the Orleans, Lower Trinity, and Mad River Ranger Districts, and encompasses more than 957,000 National Forest acres and 133,000 acres of other ownership. The SRNRA — approximately 305,000 acres, or 450 square miles, of the

Smith River watershed in the Six Rivers National Forest — was created in 1990 by Congressional enactment of the Smith River National Recreation Act, P.L. 101-612, 104 Stat. 3209 (Nov. 16,1990).

The stated purpose of the Smith River National Recreation Act is to “ensur[e] the preservation, protection, enhancement, and interpretation for present and future generations of the Smith River watershed’s outstanding wild and scenic rivers, ecological diversity, and recreation opportunities while providing for the wise use and sustained productivity of its natural Resources.” 16 U.S.C. § 460bbb-2(a).

The Land and Resource Management Plan for the Six Rivers National Forest (1995) states that the primary management goals in the SRNRA are “to emphasize, protect, and enhance the unique biological diversity; anadromous fisheries; and the wild, scenic, and recreational potential of the Smith River while providing sustained yields of forest products.”

The Smith River National Recreation Act directs the Secretary of Agriculture to “[p]ermit the use of off-road vehicles only on designated routes.” Id. § 460bbb-3(a)(4); see also H.R. Rep. 101-707 (Sep. 17, 1990). Similarly, the Land and Resource Management Plan provides that “OHV use is restricted to designated routes.” As of October 2003, Forest Service regulations provided that “[r]oads, or segments thereof, may be restricted to use by certain classes of vehicles or types of traffic,” and “may be closed to all vehicle use” as provided in 36 C.F.R. part 261 (“Prohibitions”). 36 C.F.R. § 212.5(a) (2003).

In the SRNRA, the Forest Service informs the public which system roads or routes are open to vehicular traffic, rather than indicating which non-system roads are dosed to vehicular traffic. This is done primarily (though not solely) through the SRNRA visitor map, which the public can obtain from the Six Rivers National Forest, at the Gasquet Ranger District Office in Gasquet, California and at the Six Rivers National Forest Supervisor’s Office in Eureka, California.

The SRNRA visitor map, which is dated 1994, contains a legend that identifies the highways and Forest System roads and trails in the SRNRA. By consulting the SRNRA map, a member of the public can readily determine the quality of a particular route, and whether a route is available for vehicular use. There are 13 different types of system routes identified in the SRNRA map legend — primary and secondary highways, scenic byways, improved roads (paved, gravel, and dirt), unimproved roads (general and fourwheel-drive-only recommended), designated OHV routes (general and motorcycle), and three types of trails (including maintained and unmaintained).

The terms “designated routes” and “unimproved roads” are depicted in the map legend. Because both “designated routes” and “unimproved roads” appear on the map, they are “system roads” and are therefore within the authority and control of the Forest Service. The term “unimproved roads” has a specific symbol on the map and a meaning specific to the Forest Service.

The back side of the SRNRA map includes a section entitled “Off-Highway Vehicle Travel.” This section advises the reader,

You can explore remote areas using your sport utility/four-wheel drive vehicle, trailbike, or all-terrain vehicle (ATV) on designated routes. All unimproved roads are open to use unless otherwise signed or gated. The key to responsible us[e] is remaining on designated roads and trails. Do not cut switchbacks, take shortcuts, or travel cross-country.

As noted above, the terms “designated routes” and “unimproved roads” used in this section are identified in the legend on the front side of the map, and the OHV trails are clearly marked. Thus, the map shows an OHV rider where hq/she or she is allowed to use his/her vehicle.

The Six Rivers National Forest also publishes a pamphlet entitled “OHV Information.” The pamphlet states, “Forest policy states that the use of OHVs will be restricted to designated routes (roads and trails) only. There are no open areas in the Forest.” The pamphlet states in addition that if, in the opinion of the Six Rivers National Forest, it becomes necessary to temporarily close some of the designated routes, those routes will be either gated or marked with signs.

There are no designated OHV routes, unimproved roads, or other system routes shown on the SRNRA map that provide access to the Union-Zaar mine shaft. Neither the lower access route nor the upper access route is a designated road or route, and thus, neither appears on the SRNRA map.

D. The Forest Service Environmental Compliance and Protection and Abandoned Land Mines Program

The Forest Service is divided into three levels — National, Regional, and Forest. See 36 C.F.R. §§ 200.1, 200.2. Nationwide policies and governance originate at the National Level in Washington D.C. (“the Washington Office”), and are transmitted through the nine Regional Levels to the Forests.

Thomas Buchta (“Buchta”) has been a Forest Service employee for 29 years, and since May of 2004 has served as the Abandoned Mine Land (“AML”) and Reclamation Program Leader in the Washington Office. Prior to assuming that position, Buchta was the Locatable Mineral Program Leader in the Regional Office of the Intermountain Region, headquartered in Ogden, Utah, for 12 years. Buchta is responsible for national AML program development, for providing policy and program direction to the Regional Levels of the Forest Service, and for the national AML budget.

In a declaration filed in support of the United States’ motion, Buchta explains that the Forest Service Environmental Compliance and Protection and Abandoned Land Mines Program (“ECAP/AML”) is the program through which the Forest Service manages the inventory and cleanup of mine sites located on NFS lands.

Through this program, the Forest Service ensures that mine sites are in compliance with federal environmental laws, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq. (“CERCLA”), and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901, et seq. (“RCRA”). Through ECAP/AML, the Forest Service also identifies and remediates mine sites that pose a potential risk to public health and safety, including physical health and safety.

Buchta states that the Forest Service originally focused on CERCLA/RCRA projects for which Congress had earmarked funding. In the course of performing the environmental inventory and cleanup, the Forest Service also identified physical hazards at the mine sites. The Washington Office gave the Forest Service Regions and local Forests discretion to determine how to conduct these inventories.

Janine Clayton (“Clayton”) has been a Forest Service employee for 24 years. She currently serves as the Assistant Director of Minerals and Geology Management in the Washington Office, and previously served from December 1997 to January 2006 as the Regional AML Program Manager in the Pacific Southwest Region (“Region 5”) in Vallejo, California. As Regional AML Program Manager, Clayton was responsible for regional program development, providing technical direction to the Forests, and the regional AML budget.

In a declaration filed in support of the United States’ motion, Clayton states that the Forest Service began receiving CERCLA/RCRA funds from Congress in the late 1980s, and that from 1985 to 1998, the Forest Service’s use of the available CERCLA/RCRA funds was limited to addressing environmental concerns such as hazardous wastes and hazardous substances. It was only after 1998 that any funds were available for physical safety hazard remediation programs.

Clayton explains that funds allocated to the Forest Service through the environmental remediation programs, and, in later years, through physical safety hazard remediation programs, were funneled through the Washington Office. The staff of the Washington Office, in conjunction with representatives from the various Regions, determined how to allocate the funds among the Regions, which in turn allocated funds to the Forests for specific projects.

According to Buchta, in 1985, the USDA directed all agencies within the Department to conduct surveys to determine the extent of contaminated sites, including mine sites, needing corrective actions to comply with CERCLA/RCRA. CERCLA was subsequently amended by the Superfund Amendments and Reauthorization Act of 1986, P.L. No. 99-499, 100 Stat. 1613 (1986), which expanded CERCLA requirements and required federal agencies to assess and clean up contaminated federal facilities. Because the emphasis was on environmental concerns, identification of physical safety hazards was not an element of these surveys.

In 1988, the USDA established a hazardous material management fund (“Hazmat Fund”) to identify sites needing cleanup in order to comply with CERCLA/RCRA. Although the Hazmat Fund could not be used to mitigate physical safety hazards, because the monies were earmarked for CERCLA purposes, it could be used to inventory abandoned mines in addition to cleaning up hazardous sites. In 1992, the Forest Service initiated an agency-wide inventory of abandoned mines using the Hazmat Fund.

Clayton explains that between 1991 and 1998, Region 5 Forests completed an AML inventory on a Forest-by-Forest basis. Because the inventory was completed using CERCLA/RCRA funds, the primary focus was identifying hazardous-waste mine sites. To the extent the surveyors observed any physical safety hazards, those hazards were noted in the inventory. Clayton states that Region 5 did not issue specific mandatory guidance or instructions regarding how to complete the inventories, and there was no uniform Region-wide process. The Forests exercised discretion in how they carried out the work.

Buchta states that Congress allocated funds to the Forest Service to be used for non-CERCLA cleanups and the mitigation of safety hazards for the first time in 1998. In fiscal year 1998, the Forest Service began, for the first time, to receive approximately $5.0 million a year nationwide under the AML Initiative. The funds from the AML Initiative were available to address physical safety hazards and were not limited to environmental cleanup projects.

Both Buchta and Clayton state that at the Washington Office’s direction, most of this AML Initiative funding went to support the “pilot” watershed efforts in Regions 1 and 2 (Montana and Colorado). However, Region 5 received $50,000 to begin program and partnership development in fiscal year 1998.

Clayton explains that while there was no nationwide policy regarding the allocation of those funds, a process was developed whereby projects were funded in order of priority, subject to the availability of funds. The initial step was prioritizing projects in all nine Regions, with a subsequent prioritization at the National Level. As AML Manager in Region 5, Clayton had the discretion to award funds for physical safety hazard projects in the manner she determined represented the best use of funds based on her analysis.

In anticipation of funds becoming available in Region 5, Clayton asked the Forests to submit proposals for projects they deemed important. She states that this process typically involved a two-year funding cycle, in which the Forests would submit requests in January for funds coming two years later.

Apart from statutory limitations on the use of funds, and the requirement that Clayton’s proposed allocations be approved by the Washington Office and her supervisor in Region 5, she had authority to allocate funds to proposed projects. ■ Thus, she had the discretion to allocate the $50,000 received by Region 5 in fiscal year 1908.

According to Clayton, she exercised her discretion by using those funds to help create a statewide intergovernmental AML taskforce, which in turn began to create a California state AML database. This database included data on abandoned mines on federal, state, and private lands throughout California. According to Clayton, there was no requirement that Region 5 participate in the statewide AML task-force, or perform a regional AML prioritization. Region 5 participated in these efforts under Clayton’s direction.

Clayton determined that the first step in the AML prioritization should be to review all field inventory data submitted by the Forests and identify sites that had mine workings, facilities, and excavations. In December 1998, Region 5 produced an inventory entitled “Prioritized Abandoned and Inactive Mine Sites.” The priority sites were categorized as either “high” or “moderate” for potential CERCLA issues, hazardous mine openings, and Clean Water Act issues. The rest of the sites were considered, by default, low priority.

Factors affecting the ranking of the sites included proximity to water (naturally occurring or developed for human use); chemicals used in mine workings {e.g., mercury or cyanide); initial water quality tests that included pH and conductivity; proximity to human exposure such as trails, recreation areas, towns, and residences; and the presence or absence of mine features (openings, waste piles, high walls, or structures). Seventy-one hazardous mine openings in Region 5 were identified as “high” or “moderate” priority.

Clayton states that the Union-Zaar mine site was identified in the 1998 prioritization list as a/‘moderate” priority in the CERCLA and Hazardous Mine Opening category. The Union-Zaar site was included because of water contamination as well as other potential hazards. According to Clayton, no shafts were located at the Union-Zaar mine site during the 1998 inventory process.

Buchta states that from 1998 to 2005, a significant portion of the AML Program funding was allocated to CERCLA and non-CERCLA cleanups. Only in 2005 did the priority shift to AML safety mitigation. From 2005 to the present, the majority of the AML Program budget of $5.0 million has been allocated to AML safety mitigation work.

According to Buchta, the Washington Office works with the nine Regions to help determine which projects at the local Forests should be given the highest priority for receiving funds from the AML program. In determining which local projects should be funded first (given the limited resources available) the Forest Service generally focuses on policy factors such as considerations of the severity of the hazard, the exposure and access of the public, the safety of personnel, the feasibility of the project, and participation by other partners.

Safety mitigation projects are selected, prioritized, and submitted by the nine Regions to the Washington Office for funding. Buchta asserts that there is no mandate that the Forests submit any requests, and there is no required process for doing so. Nor are there any required national criteria or methodology that must be followed by the Regions in selecting projects for submission to be funded. In any given year, the availability of funding limits the number of Regional priority projects that can be funded for that year.

E. The Identification of the Hazard at the Union-Zaar Mine

Curtis Cross (“Cross”) is a Forest Service employee who currently serves as a Supervisory Civil Engineer in the Six Rivers National Forest, and is responsible for management of the road system, facilities, drinking water systems, wastewater systems, and other infrastructure in the Forest. In addition to his other duties, Cross has served as the Abandoned Mines Coordinator for the Six Rivers National Forest, and was assigned that duty shortly after he joined the Forest Service in 2001.

In a declaration filed in support of the United States’ motion, Cross states that as Abandoned Mines Coordinator, he had the authority and discretion to shape the focus of the AML program in the Six Rivers National Forest. At the time he joined the Forest Service in January 2001, the AML program was still primarily focused on environmental concerns. However, through the CERCLA remediation work, it had become clear that there were also physical safety hazards at abandoned mines in the Six Rivers National Forest.

In early 2001, Cross began familiarizing himself with the mine sites located within the Six Rivers National Forest. As part of this process, he reviewed two earlier surveys prepared by the Forest Service— “Site Investigation of Abandoned Mines— Smith River National Recreation Area— November 1991” (“1991 survey”) and “Abandoned Mine Land Inventory — Six Rivers National Forest — Fall 1998” (“1998 survey”).

The 1991 survey was performed in order to identify environmental hazards. The survey reported eight abandoned mine sites, including the “Union Mine” (UnionZaar mine), located on the banks of Copper Creek in the SRNRA.

According to Cross, a mine “site” can cover a large area of land and may comprise numerous mine “features,” including “adits” (horizontal openings) and “shafts” (vertical openings). The 1991 survey indicated that the Union-Zaar mine “covers a disturbed area of approximately 20 acres and is characterized by haul roads, adits, and associated takings piles,” having “5 adits located along the banks of the stream and 3 midslope adits located 100 to 300 feet above the stream channel.” Although the Union-Zaar mine shaft is a feature of the Union-Zaar mine, it was not identified in the 1991 survey.

The 1998 survey was also performed primarily to identify environmental hazards, although it addressed physical safety hazards as well. The report identified 16 mine sites as having medium to high priority for human safety hazards. One of these was the UnionZaar mine, which was listed as having “[a]t least 5 adits near stream and 3 adits upslope” — “[tjhree open adits and one caved adit near stream, and four other adits reported at stream level and mid-slope.” Again, however, the Union-Zaar mine shaft was not identified in the survey.

The report recommended further inspection of “adits for unsafe structures, bat habitat, etc.” and possible installation of “bat gates or other portal closures.” The report also indicated that the “[o]pen adits are accessible and of uncertain length — could present a significant physical hazard.” The area was described as “reasonably accessible to public use,” and was consequently given a physical hazard priority of “high.”

In February 2001, Cross contacted the Region 5 Office in Vallejo, California, to inquire generally about funding mechanisms and processes that were available to deal with the physical safety hazards identified in the surveys. He learned that funding for AML programs is largely obtained at the National Level, and that the funding cycle is approximately a two-year process. Region 5 informed Cross that the funding cycle process for 2001 (for fiscal year 2003 funding) was already complete, and that the next possible year to obtain funding was in the 2002 funding cycle (for fiscal year 2004 funding).

In April 2001, Cross decided to visit some of the abandoned mine sites that were listed on the 1998 survey, including the Union-Zaar mine site. During the course of that visit, Cross located the mine shaft that is the subject of this litigation. He took a photograph, which shows the opening of a vertical shaft with an old wooden plank or log resting across it.

In December 2001, Six Rivers National Forest received the 2002 annual call letter from Region 5 for AML project proposals for fiscal year 2004. The due date for the proposals was January 24, 2002. On January 7, 2002, Cross e-mailed Clayton at the Region 5 Office with questions regarding funding. In his request, he indicated that the Six Rivers National Forest was interested in closing some shafts and adits at the Union-Zaar mine site.

Cross stated that the Union-Zaar shaft “poses the highest safety risk of all structures observed during the investigation since it is not fenced, marked, or filled with water.” He added that “[t]he shaft is located next to a popular off-highway vehicle trail and is not readily visible.” He also identified some environmental concerns, and proposed “gating 2 adits, screening 2 adits and removing waste rock from the creek to be dumped down the nearest shaft.” He asked Clayton whether he should submit a proposal for a review under the National Environmental Policy Act (NEPA) before requesting funds to do the construction work, and asked her opinion regarding how to proceed and whether the project had any chance of getting funded.

Clayton asserts that Region 5 was not aware of the Union-Zaar mine shaft that is the subject of this litigation at the time the 1991 and 1998 inventories were completed. She contends that the first notice that the Region 5 Office received of the existence of the Union-Zaar shaft was in Cross’ January 2002 e-mail, which preceded his project proposal and request for funding for fiscal year 2004.

Cross testified in his deposition that he had located some indications in Forest Service records that the Union-Zaar mine shaft may have been discovered in the 1970s. He stated that he had obtained a document from that earlier period in 2005 or 2006. The document had been sent from a company — possibly the California Nickel Corporation (“Cal Nickel”) — that previously owned mine claims in the area, and it indicated that a Forest Service employee had instructed the company to put a fence around a shaft at the Union-Zaar site. By the time that Cross came across the Union-Zaar mine shaft thirty years later, however, there was no intact fencing.

On January 22, 2002, Cross submitted a formal proposal to Region 5, seeking funding for fiscal year 2004, to address potential CERCLA remedial activities and safety issues associated with the Union-Zaar mine site, including the Union-Zaar mine shaft. He stated that the Union-Zaar mine shaft “is located along abandoned roads that are currently used by OHV recreators.”

-Cross requested funding to close the adits and mine shaft, cautioning that “Forest liabilities associated with the open shafts and adits will continue to be high” if the project is delayed. He estimated that approximately 30 people per year visited the site, “using the trails for OHV use,” and described the major recreational activity there as “driving/viewing scenery.”

Cross rated the “Unit Priority” for the Union-Zaar mine as “1,” and explained in his deposition that “Unit Priority” referred to the local, or Forest priority — i.e., the priority placed on the project by Six Rivers National Forest. Cross stated further in the proposal,

Open shafts and adits present a hazard to OHV recreational activities in the area. Tourists using the county road near the site could stop to investigate the open shaft with an easy view of the road and inadvertently fall in. The [Union-Zaar] shaft on the unofficial OHV trail is not easily seen from the main trail. The shaft is on a rise that appears to be a road pullout. If the rise were used as a pullout, the ATV and rider could easily fall into the open shaft. There is currently no fencing, cover, of [sic] signing at the shaft openings.

The proposal requested $100,000 in funding, and explained the anticipated phases of the closure and remediation project.

Cross states that he determined, after reviewing the 1991 and 1998 surveys and visiting the site, that it was appropriate and beneficial to request funding for permanent closure. He concluded that while the mine shaft was located in a remote area which is not part of the designated OHV trail system in the Six Rivers National Forest, it was possible that some vehicles or pedestrians might attempt to access the site. However, he did not anticipate that a larger vehicle such as a Jeep, a Land Cruiser, or a truck would be able to reach the mine shaft, given its location at the top of a steep embankment.

In addition to applying for funds from the Washington Office for permanent closure of mine shafts, Six Rivers National Forest also had the discretion to use its local level appropriated funds to address a potential safety hazard such as the UnionZaar mine shaft. However, according to Cross, larger projects such as permanent closure require National funds because this level of funding is not available at the local level.

In February 2002, according to Clayton, Region 5 completed gathering all the funding proposals received from the Forests in the Region, and prioritized the proposed projects in an effort to determine which should be funded for fiscal year 2004. Clayton performed the prioritization in conjunction with the Regional Environmental Engineer and his assistant. Clayton considered physical safety hazard concerns as well as environmental concerns.

On February 25, 2002, based on Cross’ project proposal, Clayton selected the Union-Zaar mine shaft closure work for funding in fiscal year 2004. Region 5 submitted a General Project Information document concerning the Union-Zaar mine site to the Washington Office. This document contained language taken from Cross’ proposal, regarding the risk to human health and safety posed by the shafts and adits. The Union-Zaar proposal was rated 10th in priority by Region 5, based on the CERCLA component.

In June 2002, Cross contacted his supervisor Edward Zangger (“Zangger”), who was the Forest Engineer Staff Officer for the Six Rivers National Forest, and also contacted Forest Service Assistant District Fire Management Officer Synthia Heidt Zerr. Cross advised them that the Six Rivers National Forest had located some mine shafts in close proximity to some roads. He requested the assistance of fire personnel to provide labor to build temporary fences around the mine shafts.

Cross states that in October 2002, after the fire season was over, Six Rivers National Forest fire personnel fenced and signed the Union-Zaar mine shaft, as well as another mine shaft located near County Road 305. Constructing what is referred to as a “gabion” fencing structure, the fire personnel placed heavy gauge wire baskets around the mine shafts and filled them with rock. Smooth wire was strung between the baskets to encircle the shafts. An “Abandoned Mine” land warning sign was placed on the wire to warn of the presence of the shafts, and bright pink ribbon was wrapped between the rows of smooth wire in order to increase visibility.

Cross states that he made the decision to put up the gabion fencing around the Union-Zaar mine shaft as an interim measure until the funding, investigation, and assessment process for permanent closure could be completed. He determined that gabion fencing was the best means of fencing the mine shaft at that point, because it would be more visible to the public and more easily constructed.

As the ground around the mine shaft was primarily bedrock and cobbles, Cross did not believe that fence posts could be easily pounded into the ground at that location. He testified in his deposition that he “wasn’t real confident that we would get the posts into the hole,” and was concerned that “it could create a hazard that someone could lean against it, thinking it was more stable than it actually was and thereby create more of a hazard.”

In addition, Cross determined there would be less impact on wildlife, less noise, and less disturbance of the ground using this method. He testified that “the intent was really to have something to hold up and warn the public, hold up the signs, something to put the signs on, and the gabions were more visible than the narrow fence post.” In addition, the Forest Service could more easily re-use the materials once a substantial permanent enclosure had been constructed.

Other factors Cross considered were the cost of the project, the feasibility of closure, the speed of completion, and the difficulty of getting construction equipment to the site. He evaluated various fencing options, and presented those options to Zangger, the Forest Engineer, who had the discretion to determine what method was used. Cross states that he was not aware of any regulations mandating that a particular type of fencing be used to enclose a mine shaft.

In February or March of 2003, Officer Steven White, who had heard about the Union-Zaar mine shaft from a local resident, went looking for it, out of curiosity. He testified in his deposition that when he located the shaft, there were no gabion structures or fencing, and no warning signs at the site. He was unaware that the Forest Service considered the site to be a public safety hazard, and in fact, believed at the time that the mine shaft was on private land. He testified that if he had known that the mine shaft was on NFS land, and if he had known that the Forest Service had previously erected the gabion fencing, he probably would have reported the lack of fencing and signage to the Six Rivers National Forest.

However, Officer White added that while he believed that “structured shafts ... associated with old mining sites are in general terms hazardous,” he did not feel that the Union-Zaar mine shaft “was particularly more noteworthy than any number of other places that are perhaps not man-made, but that exist out in the national forest.” He stated that he had never heard a single report of anyone having been hurt in a mining structure in Del Norte County.

Moreover, it did not seem to him that a reasonable person would encounter a problem at the Union-Zaar mine shaft. He stated, “I did not foresee, not in my wildest dreams, that someone would try to take a Jeep-type vehicle up there where you cannot see anything in front of you but your hood pointed way up in the air. I did not foresee, couldn’t imagine that somebody would do that without getting out first and looking to see where they are going to drive.”

During the rescue and recovery at the mine shaft following the October 2003 accident, Officer White noticed evidence of remnants of wire used to encircle the shaft at some earlier period of time, prior to the time the gabion fencing was constructed, and observed signs that the wire had been cut. He also noted that it appeared that three of the gabions had been vandalized and pushed into the open mine shaft.

Cross states that he was not aware of any requirement that the Six Rivers National Forest regularly check or monitor the fencing at the mine shaft. He asserts that the Six Rivers National Forest has limited personnel and resources to devote to the AML program, and that he felt that rather than spend resources on constant monitoring of the fencing at the UnionZaar mine shaft, AML program resources should be directed toward conducting additional review of other mine sites and developing priorities for upcoming funding requests.

Cross notes that the 1998 survey had identified 189 mine sites in the Six Rivers National Forest, and that he had not inspected all of them. He states that as the highest density of identified mine sites is in the general area where the Union-Zaar mine site is located, he anticipated returning to the area at some time in the future to check the site. Based on this plan, based on the fact that funding had been requested for permanent closure, and also based on the fact that the mine was located in a remote location where there had been no prior mine accidents, Cross did not feel the need to request additional personnel to check on the gabion structures at the Union-Zaar mine shaft.

Zangger testified that, based on the presence of the plank stretched across the opening of the Union-Zaar mine shaft, his main concern was that people had been repelling down the inside of the shaft. He stated that “[t]he fence was prioritized on my part to try to keep people from going up there, walking up that 40-whatever-8 degree slope or whatever it was to go up there.” He added that “there [were] no vehicle tire marks up there, but the idea was to keep people on foot and warn them on foot when they walked up there to keep away from the edge and not to be repelling into this shaft.”

Once the funding had been appropriated for the interim fencing, Zangger verified that the project had been completed, but did not see any subsequent need to direct that the fencing and signage be monitored. He stated that there had not previously been any issues or problems associated with the Union-Zaar mine shaft, and “I did not see that there was a risk identified because these things had existed since I don’t know how long, and we were doing this as a precautionary measure subsequent to their discovery.”

In January 2003, the Six Rivers National Forest received the annual call letter for AML safety closure projects to be funded in fiscal year 2005. In February 2003, Cross submitted proposals for safety closure work at the Union-Zaar mine site and for shafts/pits along Hurdy Gurdy Creek. The 2003 submittal process was different from the process the previous year in that safety closure project proposals were to be submitted separately from proposals for clean-up of environmental hazards. According to Cross, this change reflected the increased emphasis on physical safety hazards across Region 5 and at the Washington Level.

Cross anticipated that different criteria were going to be used to rank safety closure projects through this new process. In addition, the Six Rivers National Forest had not yet received verification that the safety issues identified in the 2002 proposal (for fiscal year 2004) had been approved. Thus, in order to maximize the chance that the project would be funded, Cross resubmitted the proposed safety closure work for the Union-Zaar mine shaft.

In this 2003 proposal, however, Cross prioritized the Union-Zaar mine shaft project as second in importance, after the Hurdy Gurdy Creek project. He did this because he had been informed by district personnel that they had received complaints from members of the public about the potential hazards near the Hurdy Gurdy area (which was located within one mile of a campground). Increased recreational development was also planned for the Hurdy Gurdy area. By contrast, the UnionZaar mine shaft was located in a remote area where motor vehicle use was not permitted, and the Six Rivers National Forest had no record of having received any public complaints about the Union-Zaar mine shaft. Having determined that the proximity to recreation areas and access opportunities represented a higher risk to the public, Cross therefore identified the Hurdy Gurdy project as having a higher priority-

On July 30, 2003, Cross received an email from Clayton, confirming that Six Rivers National Forest would receive $30,000 in fiscal year 2004 for AML safety closures, and a total of $125,000 in fiscal year 2005 for AML safety closures (including $70,000 for Hurdy Gurdy and $55,000 for Union-Zaar).

F. Events Occurring Eight Months Prior to the October 2003 Accident

On February 2, 2003, Officer Steven White stopped a group of four OHVs, which he had observed stopped at the intersection of a primitive, non-system vehicle route and U.S. Forest System route 17N49/Gasquet Mt. Road, approximately three miles from the site where the October 11, 2003, accident would later occur. Dale Cleveland and Tyson Cleveland were among the OHV riders in this group, which also included Sheila Cleveland, Jerry Bachman, Tana Bachman, and Curtis Johnson.

Officer White determined that all four vehicles had exited the non-system route; that some had driven around a two-foot-tall rock barrier device placed across the primitive trail; and the vehicle driven by Dale Cleveland had been driven over the rock barricade rather than around it. Officer White warned the group that they were in violation of Forest Service regulations by driving on a route not designated for motor vehicles. His contact with the group lasted approximately 45 minutes. He spoke directly to Dale Cleveland and Jerry Bachman about where they were and were not permitted to operate their vehicles.

Jerry Bachman testified in his deposition that he and Dale Cleveland told Officer White that they had grown up in the area and had for many years been driving on the old roads in the Six Rivers National Forest. Bachman stated that in his opinion, all the roads, trails, and paths in the SRNRA should be open access for OHV or four-wheel driving, and that it was “not right” for the Forest Service to shut so many roads “by putting gates on them,” because “[fit’s our land, and we should be able to go anywhere we want on it.”

Officer White asserts that he advised that Dale Cleveland would be cited in the future for “hill climbs” or attempts to climb steep slopes, and that he provided Jerry Bachman and Dale Cleveland with handouts on OHV operations. The handouts stated that OHV use was restricted to designated routes only. Officer White states that he informed Jerry Bachman and Dale Cleveland that they should consult the SRNRA map, which shows the designated OHV roads and trails, and that they could also ask at the Gasquet Ranger Station.

Jerry Bachman, who had been drinking the day of the incident, testified that he did not recall receiving any OHV handouts or being told that he should consult the SRNRA map. Tyler Cleveland, who overheard at least part of the discussion between Officer White, Dale Cleveland, and Jerry Bachman, also claims not to recall seeing Officer White give anyone an OHV handout.

Sheila Cleveland, Dale Cleveland’s wife, states in a declaration filed in opposition to the United States’ motion that she did not see Officer White give anyone the OHV pamphlets, and that Officer White did not tell them they were supposed to drive only on roads that showed on the SRNRA map. She also claims that Officer White told them only that they were not to drive on areas that were clearly not existing roads or four-wheel-drive trails, or on roads or trails that had been blocked off or had signs indicating that driving was prohibited.

DISCUSSION

A. The FTCA and the Discretionary Function Exception

The United States “can be sued only to the extent that it has waived its immunity.” United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). “[T]he terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citation and quotation omitted). The FTCA waives the sovereign immunity of the United States for certain torts committed by federal government employees where a claim would exist under state law if the government were a private party. 28 U.S.C. § 1346(b).

This waiver of sovereign immunity is limited by certain statutory exceptions. One such exception, the “discretionary function” exception, provides that no liability shall lie for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

This exception “restores the government’s immunity in situations where its employees are carrying out governmental or regulatory duties.” Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir.1996) (citations and quotation omitted). The purpose of the exception is to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.” United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (citation and quotation omitted).

To determine whether the challenged conduct falls within the discretionary function exception, courts employ a two-step analysis. Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, the court must first ask whether the challenged action “is a matter of choice for the acting employee.” Id. at 536, 108 S.Ct. 1954; see also Whisnant v. United States, 400 F.3d 1177, 1180-81 (9th Cir.2005). “The exception does not apply ‘when a federal statute, regulation, or policy specifically prescribes a course of action for the employee to follow’ and the government employee deviates from this course.” Navarette v. United States, 500 F.3d 914, 916 (9th Cir.2007) (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954).

Second, if the court finds that the challenged conduct involves an element of judgment, it must determine whether that judgment is of the type that Congress intended to protect—that is, whether the action or decision is susceptible to social, economic, or political policy analysis. Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954; Whisnant, 400 F.3d at 1181. If the challenged action is both discretionary and policy-driven, the discretionary function exception bars the FTCA claims. Oberson v. United States Department of Agriculture, Forest Service, 441 F.3d 703, 710 (9th Cir.2006).

In considering whether the discretionary function exception applies, the court must consider the allegations of the complaint. Because the FTCA premises liability on the “law of the place where the action or omission occurred,” 28 U.S.C. § 1346(b), California tort law governs plaintiffs’ claims. See Yanez v. United States, 63 F.3d 870, 872 (9th Cir.1995). In the present complaint, plaintiffs allege a single cause of action—a claim of willful or malicious failure to guard or warn against a dangerous condition or structure, under California Civil Code § 846.

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A motion to dismiss on the basis of the discretionary function exception to the FTCA is treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). The burden of establishing subject matter jurisdiction ordinarily rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In an FTCA case, however, the United States bears the burden of demonstrating that the discretionary function exception applies. Whisnant, 400 F.3d at 1181.

The United States contends that the determination of how to identify and warn of the potential hazard posed by the Union-Zaar mine shaft, and whether and how to warn of the hazard, was a discretionary act and a policy judgment. Plaintiffs argue that it was neither discretionary, nor a judgment of the kind that the discretionary function exception was designed to shield.

1. The Element of Discretion

The court must first determine whether the Forest Service’s decisions regarding how to identify and warn of the potential hazards of the Union-Zaar mine shaft were a matter of judgment or choice. Because the Forest Service did not mandate specific safety actions that Forest Service employees could or could not take, the decision whether to erect fencing around the Union-Zaar mine shaft and decision whether to post warning signs was discretionary, as was Cross’ decision to submit a funding request in January 2002 for closure of the mine shaft.

In Berkovitz, the Supreme Court held that the discretionary function exception does not apply “when a federal statute, regulation, or policy specifically prescribes a course of action for the employee to follow” because in that event, “the employee has no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. The plaintiff in Berkovitz had contracted polio after taking an oral polio vaccine, and sued the United States for approving production and distribution of the vaccine.

The court held that the decision by the National Institutes of Health’s Division of Biologic Standards to license the vaccine without first receiving the required safety data from the manufacturer was not protected by the discretionary function exception, because federal statutes and regulations mandated that licenses for vaccines could be issued only upon a showing that the vaccines met specific safety standards. Id. at 540-42, 108 S.Ct. 1954. Thus, the United States had no discretion to issue the license without first receiving the required test data. Id. at 542-43, 108 S.Ct. 1954.

Here, by contrast, there is no evidence of any statutory or regulatory mandate that required the Six Rivers National Forest to make a search of Forest Service lands to identify all possible hazards, to engage in the process of identifying and seeking funding for permanent closure of possible safety hazards, or to install fencing around mine features slated for permanent closure.

Plaintiffs appear to concede that the above-described actions were not governed by any statutory or regulatory mandate, and that some discretion existed at the Regional or Forest Level with regard to determining which abandoned mine features posed a hazard to the public. They contend, however, that having determined that the Union-Zaar mine shaft was potentially hazardous to the public, the Forest Service was obligated by certain “policies” to erect and maintain warning signs, and to erect a gate or sign across the trails that led to the mine shaft.

First, plaintiffs assert that because the Forest Service, acting through Cross, had identified the Union-Zaar mine shaft in the January 2002 project proposal for fiscal year 2004 as its “number one priority” in the Six Rivers National Forest, the Forest Service had no discretion in deciding whether to erect and maintain mine hazard warning signs at the Union-Zaar mine shaft.

Second, plaintiffs contend that the Forest Service Health and Safety Code Handbook includes policy background applicable to the question of abandoned mines, and that § 22.81d(9) of the Forest Service Health and Safety Code specifically mandates that warning signs be placed on abandoned mines.

Third, plaintiffs argue that the Forest Service was obligated to erect gates across the upper and lower access routes leading to the Union-Zaar mine shaft, or to place signs on those trails because the Forest Service had established a “plan and policy” by stating in the SRNRA map that “all unimproved roads are open to use unless otherwise signed or gated.” Plaintiffs contend that in publishing this statement, the Forest Service committed to gate off or sign off any unimproved road in the SRNRA that was not open to OHV use.

The court finds that none of these “policies” imposed a general mandatory duty on the Forest Service with regard to warning of the hazards of the Union-Zaar mine shaft. With regard to Cross’ determination that the Union-Zaar mine shaft was potentially hazardous and his recommendatio