Lesoeur v. U.S., 92-16948

Decision Date15 March 1994
Docket NumberNo. 92-16948,92-16948
Citation21 F.3d 965
PartiesDaniel LESOEUR, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Alan M. Kyman and John Friedeman, Phoenix, AZ, for plaintiffs-appellants.

Paul F. Figley, Heidi E. Weckwert, U.S. Dept. of Justice, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: CHOY, REINHARDT and LEAVY, Circuit Judges.

Opinion by Judge REINHARDT.

REINHARDT, Circuit Judge:

The Lesoeurs appeal the district court's dismissal of their tort action against the United States for lack of subject matter jurisdiction under the Federal Tort Claims Act ("FTCA"). The district court dismissed the action after finding that it was barred by the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a). Lesoeur first contends that the discretionary function exception does not apply because the National Park Service ("NPS") failed to comply with federal regulations. Lesoeur also contends that the NPS's negligent failure to warn is not protected by the discretionary function exception.

We affirm the district court's dismissal of the case. The regulation that was allegedly violated does not apply to the facts of the Lesoeurs' action. Additionally, the NPS's failure to warn is protected because political policy considerations were clearly implicated in the decision. Accordingly, the discretionary function exception applies and dismissal was proper.


In 1988, the Lesoeur family was vacationing in the United States. Their vacation included a trip to Grand Canyon National Park ("Park"), owned by the United States. To enter the Park and use its facilities, the Lesoeurs paid an admission fee to the United States.

While in the Park, the Lesoeurs decided to take a whitewater rafting trip on the Colorado River. The attendant at the tour information desk at the Bright Angel Lodge told the Lesoeurs that there were no openings. The attendant suggested that the Lesoeurs look for other tour companies in the yellow pages. After contacting several tour companies that had no space available, the Lesoeurs made a reservation with the Hualapai Indian Tribe ("Tribe") for a two-day rafting tour operated by the Tribe. The tour began the next day.

On August 13, 1988, the Lesoeurs paid the Tribe for the tour and were bused with other tour members to the river's edge. There were no posted warning signs at or near the point where the group entered the water. Therefore, the Lesoeurs were not aware that the Tribe's tours were unregulated by the National Park Service ("NPS"). On the first day of the rafting trip, Mr. Lesoeur fell from the raft as it was abruptly turned in smooth water. He was severely injured when he was run over by the raft's propeller.

The Tribe's rafting tours had been totally unregulated by the NPS since a 12-month permit issued to the Tribe in 1973 had expired. Both parties agree that the NPS made a decision in 1976 not to regulate the Tribe's tours. This decision is reflected in the 1977 revision to 36 C.F.R. Sec. 7.4. 1 It is also undisputed that the decision to exempt the Tribe's tours from regulation was linked to a boundary dispute between the Tribe and the United States. 2 The NPS maintains that it decided to refrain from asserting regulatory authority over the Tribe's tours due to the Tribe's claims of sovereignty.

Lesoeur filed thus action after the administrative claim he filed with the Grand Canyon National Park was denied. The United States filed a Motion to Dismiss for lack of subject matter jurisdiction on the ground that the action was barred by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a). Lesoeur filed a Cross-Motion for Partial Summary Judgment. After a hearing, the district court granted the Motion to Dismiss, treating it as a motion for summary judgment.


The Federal Tort Claims Act, 28 U.S.C. Sec. 1346 ("FTCA"), waives the sovereign immunity of the United States for certain torts committed by government employees where a claim would exist under state law if the government were a private person. However, this waiver of sovereign immunity is limited by the discretionary function exception, 28 U.S.C. Sec. 2680(a), which provides that the waiver shall not apply to "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Therefore, federal courts do not have subject matter jurisdiction over tort actions based on federal defendants' performance of discretionary functions. See Garcia v. U.S., 826 F.2d 806, 809.

In Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Cir.1989), the court followed a two-part inquiry to determine if the discretionary function exception applied:

We must "first consider whether the action is a matter of choice for the acting employee.... [T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz [v. United States, 108 S.Ct. 1954, 1958 (1988) ]. If the challenged conduct does involve an element of judgment, our second step is to "determine whether that judgment is of the kind that the discretionary function exception was intended to shield." Id. [at 536, 108 S.Ct.] at 1959. To be shielded, the judgment must be "grounded in social, economic, or political policy." Id., quoting [United States v.] Varig [Airlines], 467 U.S. [797, 814[, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660] (1984) ].

If the decisions are the type grounded in social, economic, or political policy judgments, the government is not required to "prove that it considered these factors and made a conscious decision on the basis of them." Kennewick, 880 F.2d at 1028. The discretionary function exception reflects Congress's "wish[ ] to prevent judicial 'second-guessing' of legislative and administrative decisions ... through the medium of an action in tort." Id. at 1021-22 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764). The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on "the nature of the actions taken and on whether they are susceptible to policy analysis." United States v. Gaubert, 499 U.S. 315, 323-24, 111 S.Ct. 1267, 1274-75, 113 L.Ed.2d 335 (1991).

In this case, the Secretary of the Interior is granted discretion in promulgating regulations. The National Park Service ("NPS") enabling legislation states: "The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks ... under the jurisdiction of the National Park Service." 16 U.S.C. Sec. 3. Additionally, 16 U.S.C. Sec. 1a-2 states:

"In order to facilitate the administration of the national park system, the Secretary of the Interior is authorized, under such terms and conditions as he may deem advisable, to carry out the following activities: ... (h) promulgate and enforce regulations concerning boating and other activities on or relating to waters located within areas of the National Park System...."

(emphasis added).

Using this statutory authority, the Secretary promulgates regulations to govern the operation of the national parks. The regulation that governs business operations within all of the national parks, 36 C.F.R. Sec. 5.3, states that "[e]ngaging in or soliciting any business in park areas, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, except as such may be specifically authorized under special regulations applicable to a park area, is prohibited." However, regulations in Part 7 of Chapter 36 are special regulations for specific park areas and "may amend, modify relax or make more stringent" the regulations in Parts 1 through 5 of the chapter. 36 C.F.R. Sec. 1.2(c). Part 7 includes 36 C.F.R. Sec. 7.4(b), the special regulation governing Colorado whitewater boat trips within Grand Canyon National Park. This regulation applies to "all persons using the waters of, or Federally owned land administered by the National Park Service, along the Colorado River within Grand Canyon National Park, upstream from Diamond Creek at approximately river mile 226...." 36 C.F.R. Sec. 7.4(b).

Lesoeur alleges that the NPS failed to adequately supervise the Tribe with regard to the Tribe's whitewater rafting operations. He argues that the NPS failed to comply with 36 C.F.R. Sec. 5.3, the general provision requiring all vendors in national parks to operate according to a written agreement with the NPS. As a result, Lesoeur asserts, the discretionary function exception does not apply under Berkovitz. In support of his claim, Lesoeur points to Law Enforcement Policy and Guideline NPS-9 ("NPS-9") which provides that "[t]he National Park Service will maintain law and order, protect persons and their property and protect park resources through the enforcement of all applicable laws and regulations." He argues that NPS-9 requires the NPS to prohibit the Tribe from engaging in business in the Park without a written agreement pursuant to 36 C.F.R. Sec. 5.3.

This argument fails because Sec. 5.3 does not apply to the Tribe's river tours: the regulation governing Colorado whitewater boat trips, 36 C.F.R. Sec. 7.4(b), was amended to exempt the Tribe's river tours from NPS regulation. First, it is clear that the Secretary has a great deal of discretion in promulgating and enforcing regulations for use of the national parks under 16 U.S.C. Sec. 3. More specifically, the Secretary has discretion in promulgating and enforcing regulations concerning...

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