Chadd Ex Rel. Estate of Boardman v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN H. CHADD, as personal No. 12-36023

representative of the Estate of Robert

M. Boardman, deceased, and for D.C. No.

herself, 3:11-cv-05894-

Plaintiff-Appellant, RJB

v.

OPINION

UNITED STATES OF AMERICA,

NATIONAL PARK SERVICE,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, Senior District Judge, Presiding

Argued and Submitted

May 16, 2014—Seattle, Washington

Filed July 27, 2015

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge O’Scannlain;

Concurrence by Judge Berzon;

Dissent by Judge Kleinfeld

2 CHADD V. U.S. NAT’L PARKS SERVICE

SUMMARY*

Federal Tort Claims Act

The panel affirmed the district court’s dismissal for lack

of subject matter jurisdiction of a Federal Tort Claims Act

action brought against the United States alleging claims

arising from a fatal mountain goat attack on an Olympic

National Park visitor.

The plaintiff, the wife of the deceased Park visitor,

alleged that Park officials breached their duty of reasonable

care by failing to destroy the goat in the years leading up to

her husband’s death.

The FTCA’s discretionary function exception retains the

United States’ sovereign immunity for any claim based on

“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.”

The panel held that the discretionary function exception

applied. At step one of the discretionary function analysis,

the panel held that there was no extant statute, regulation, or

policy directive that required Park officials to destroy the goat

prior to the Park visitor’s death, and Park officials had

discretion in deciding how to manage the problematic goat.

At step two of the analysis, the panel held that the Park

officials’ decision to use non-lethal methods to manage the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CHADD V. U.S. NAT’L PARKS SERVICE 3

goat was susceptible to policy analysis, and the discretionary

function exception applied.

Judge Berzon concurred with Judge O’Scannlain’s

opinion and its application of the discretionary function

exception to the facts of the case, but she believes that Miller

v. United States, 163 F.3d 591, 593 (9th Cir. 1998) (holding

that the government decision at issue need not be actually

grounded in policy considerations, but need only be

susceptible to a policy analysis), should be reconsidered.

Judge Kleinfeld dissented because he would hold that the

negligence in this case fell outside the discretionary function

exception.

COUNSEL

Shelby R. Frost Lemmel, Masters Law Group, PLLC,

Bainbridge Island, WA, argued the cause and filed the briefs

for the plaintiff-appellant. With her on the briefs was

Kenneth W. Masters, Masters Law Group, PLLC, Bainbridge

Island, WA.

Teal Luthy Miller, Assistant United States Attorney, Seattle,

WA, argued the cause and filed the brief for the defendant-

appellee. With her on the brief were Stuart F. Delery, Acting

Assistant Attorney General, U.S. Department of Justice Civil

Division, Washington, DC; Jenny A. Durkan, United States

Attorney, Seattle, WA; and Mark B. Stern, Appellate Staff,

U.S. Department of Justice Civil Division, Washington, DC.

4 CHADD V. U.S. NAT’L PARKS SERVICE

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the United States may be sued

under the Federal Tort Claims Act for the actions of the

National Park Service relating to a mountain goat that

attacked and killed a Park visitor.

I

A

Established in 1938, Olympic National Park (“Olympic”

or the “Park”) spans 922,650 acres and hosts three million

visitors each year. Among the many species of animal

residing in Olympic is the mountain goat, which is not native

to the area, having been introduced into the Park decades ago.

Mountain goats possess dangerously sharp horns, and males

typically weigh around 242 pounds. Prior to the incident in

this case, there had been three reported, non-lethal attacks on

people by mountain goats at other national parks, none of

which were known to officials at Olympic.

Normally, mountain goats are reclusive animals, but the

goats at Olympic frequently seek out areas visited by humans

because of the salt humans leave behind. After repeated

exposure to humans, goats can become habituated to their

presence, which entails the loss of the mountain goat’s fear

response. Around 2004, when the goat population at

Olympic was near 300, officials at the Park began receiving

reports that some goats were becoming habituated; by 2006,

goats began displaying aggressive behavior, such as standing

CHADD V. U.S. NAT’L PARKS SERVICE 5

their ground, following or chasing humans, pawing the

ground, and rearing up.

Park officials decided to investigate the situation

personally. They hiked the trails and observed the mountain

goats demonstrating progressively habituated and sometimes

aggressive behavior. Officials placed collars on the goats

with Global Positioning System devices in order to track their

movements and to collect further data.

Based on these observations, the Park began warning

visitors about the goats’ behavior. Visitors were given verbal

warnings, and warning signs were posted on trails. Officials

began employing aversive conditioning techniques, such as

shooting the goats with paint balls and bean-bags, in order to

change the goats’ behavior. Officials focused their efforts on

a few areas, including Klahhane Ridge.

Nonetheless, officials continued to receive reports in 2009

and 2010 about a large male goat chasing visitors and

displaying other signs of aggression. Officials began

discussing other management options for the problematic

goat, but, as stated by Park Ranger Sanny Lustig, the solution

“was not clear-cut.” Sometime before July 30, 2010,

Olympic Superintendent Karen Gustin, Wildlife Branch Chief

Dr. Patti Happe, and Ranger Lustig met to discuss

management options for the goat. They coordinated their

reporting and hazing efforts and decided to intensify the

aversive conditioning. Dr. Happe was to investigate the

possibility of relocating the goat. On July 30, she emailed

Washington State Department of Fish and Wildlife biologist

Dr. Donny Martorello to ask whether they “had an option for

translocation.” She described the goat and stated that it was

“not responding to [their] efforts to have him keep . . . a

6 CHADD V. U.S. NAT’L PARKS SERVICE

greater distance from people.” Dr. Happe wrote that, because

the goat had been “increasingly aggressive,” Olympic wished

to “explore other management options for [the goat],

including relocation from the area.”

Over the next two months, there were continued reports

of goats pawing the ground, preventing hikers from passing,

and acting aggressively. On October 16, 2010, Robert

Boardman and his wife, Susan Chadd, were hiking on the

Switchback trail to Klahhane Ridge with a friend, Pat Willits,

when a large male goat attacked Boardman, goring his leg

with its horns and severing his femoral artery. Boardman

died of his wound. Park officials found and destroyed a 370-

pound male goat with blood on its horns within hours of the

attack.

B

Chadd, on her own behalf and as representative of

Boardman’s estate, filed suit against the United States and the

National Park Service (the “Service”) under the Federal Tort

Claims Act (FTCA), alleging that Park officials breached

their duty of reasonable care by failing to destroy the goat in

the years leading up to Boardman’s death.1 The government

moved to dismiss the case under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction,

simultaneously filing declarations and other evidence in

support of the motion. The parties proceeded with discovery.

1

Jacob Haverfield, Boardman’s stepson, was initially a plaintiff in this

case, but he later moved the district court for voluntary dismissal of his

claims. For this reason, the district court’s order dismissing Chadd’s suit

for lack of subject matter jurisdiction did not list Haverfield as a plaintiff.

He is, therefore, not a party to this appeal.

CHADD V. U.S. NAT’L PARKS SERVICE 7

On August 20, 2012, the district court granted the

government’s motion to dismiss.2 Chadd timely appealed.

II

As a sovereign, the United States is immune from suit

unless it waives such immunity. FDIC v. Meyer, 510 U.S.

471, 475 (1994). The United States has waived its sovereign

immunity with regard to tort liability under the Federal Tort

Claims Act “under circumstances where the United States, if

a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred.” 28 U.S.C. § 1346(b)(1). “The Act did

not waive the sovereign immunity of the United States in all

respects, however; Congress was careful to except from the

Act’s broad waiver of immunity several important classes of

tort claims.” United States v. S.A. Empresa de Viacao Aerea

Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).

Among these is the discretionary function exception

contained in 28 U.S.C. § 2680(a). Id.

The discretionary function exception retains the United

States’s sovereign immunity for “[a]ny claim . . . based upon

the exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part of a

federal agency or an employee of the Government, whether

or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a). This exception “marks the boundary between

Congress’ willingness to impose tort liability upon the United

2

In addition to her claim regarding the Park’s management of the goat

in the lead-up to Boardman’s death, Chadd originally claimed that the

Park’s response to the goat attack was deficient. The district court

dismissed that claim in a separate order, which Chadd has not appealed.

8 CHADD V. U.S. NAT’L PARKS SERVICE

States and its desire to protect certain governmental activities

from exposure to suit by private individuals.” Varig,

467 U.S. at 808. It is designed to “prevent judicial

‘second-guessing’ of legislative and administrative decisions

grounded in social, economic, and political policy through the

medium of an action in tort.” Id. at 814. The government

bears the burden of proving that the discretionary function

exception applies. Bailey v. United States, 623 F.3d 855, 859

(9th Cir. 2010).

The Supreme Court has established a two-step process for

evaluating whether a claim falls within the discretionary

function exception. First, a court examines whether the

government’s actions are “discretionary in nature, acts that

involv[e] an element of judgment or choice.” United States

v. Gaubert, 499 U.S. 315, 322 (1991) (internal quotation

marks omitted). In making this examination, it is “the nature

of the conduct, rather than the status of the actor, that governs

whether the discretionary function exception applies in a

given case.” Varig, 467 U.S. at 813. “If there is . . . a statute

or policy directing mandatory and specific action, the inquiry

comes to an end because there can be no element of

discretion when an employee has no rightful option but to

adhere to the directive.” Terbush v. United States, 516 F.3d

1125, 1129 (9th Cir. 2008) (internal quotation marks

omitted).

Second, “even assuming the challenged conduct involves

an element of judgment, it remains to be decided whether that

judgment is of the kind that the discretionary function

exception was designed to shield.” Gaubert, 499 U.S. at

322–23 (internal quotation marks omitted). “The exception

protects only government actions and decisions based on

social, economic, and political policy.” Miller v. United

CHADD V. U.S. NAT’L PARKS SERVICE 9

States, 163 F.3d 591, 593 (9th Cir. 1998) (internal quotation

marks omitted). However, the exception “is not confined to

the policy or planning level” and extends to “the actions of

Government agents.” Gaubert, 499 U.S. at 325, 323.

It is also important to bear in mind that the decision

giving rise to tort liability “need not be actually grounded in

policy considerations, but must be, by its nature, susceptible

to a policy analysis.” Miller, 163 F.3d at 593. Thus, “if a

regulation allows the [governmental] employee discretion,”

there is “a strong presumption that a discretionary act

authorized by the regulation involves consideration of the

same policies which led to the promulgation of the

regulations.” Gaubert, 499 U.S. at 324. In such cases, the

plaintiff “must allege facts which would support a finding

that the challenged actions are not the kind of conduct that

can be said to be grounded in the policy of the regulatory

regime.” Id. at 324–25. In any event, “[t]he focus of the

inquiry is not on the agent’s subjective intent in exercising

the discretion conferred by statute or regulation, but on the

nature of the actions taken and on whether they are

susceptible to policy analysis.” Id. at 325.3

III

A

Chadd’s tort suit alleges that the Service should have

destroyed the goat before it killed Boardman, and that the

3

Thus, the dissent’s assertion that the discretionary function should be

limited to an analysis of whether the government agent intended,

subjectively, to exercise policy-based discretion, Dissent Slip Op. at 24,

is incorrect.

10 CHADD V. U.S. NAT’L PARKS SERVICE

Service’s failure to do so constituted negligence.4 The first

issue, then, is whether “a statute or policy directing

mandatory and specific action” required the Service to

destroy the goat before it attacked Boardman. Terbush,

516 F.3d at 1129. If none did, then the Service’s

management of the goat necessarily “involv[ed] an element

of judgment or choice,” and the first prong of the

discretionary function exception is satisfied. Gaubert,

499 U.S. at 322 (internal quotation marks omitted).

The Service’s Management Policies manual (the

“manual”) is “the basic Service-wide policy document of the

National Park Service” and is “mandatory unless specifically

waived or modified by the Secretary, the Assistant Secretary,

or the Director.” The government does not dispute that this

manual governed the Service’s actions in the lead-up to

Boardman’s death. Section 8.2.5.1 of the Management

Policies manual instructs, “The saving of human life will take

precedence over all other management actions. . . .”

However, the manual qualifies this obligation in the

4

At oral argument, counsel for Chadd argued that the Park Service’s

2009 decision to begin intensive hazing of the mountain goat constituted

a mandatory directive for purposes of the discretionary function exception

and that the Service failed to implement its hazing policy properly. This

argument was entirely new, never having been raised in the district court

or in Chadd’s opening brief. It is also a highly fact-dependent argument,

which makes it difficult to evaluate without the benefit of district court

findings and full briefing. We address “only issues which are argued

specifically and distinctly in a party’s opening brief.” Greenwood v. FAA,

28 F.3d 971, 977 (9th Cir. 1994). Moreover, “[i]t is well established that

an appellate court will not reverse a district court on the basis of a theory

that was not raised below.” Alaska Airlines, Inc. v. United Airlines, Inc.,

948 F.2d 536, 546 n.15 (9th Cir. 1991). We therefore decline to consider

Chadd’s argument relating to the Service’s implementation of its decision

to haze the goat.

CHADD V. U.S. NAT’L PARKS SERVICE 11

following manner: “The Service will do this within the

constraints of the 1916 Organic Act. The primary—and very

substantial—constraint imposed by the Organic Act is that

discretionary management activities may be undertaken only

to the extent that they will not impair park resources and

values.” Moreover, the obligation to “reduce or remove

known hazards” is limited by what is “practicable and

consistent with congressionally designated purposes and

mandates.”

These statements indicate that there are many factors the

Service must consider while ensuring human safety in the

national parks, such as “park resources and values,” what is

“practicable,” and “congressionally designated purposes and

mandates.” Indeed, the manual explicitly provides, “[t]hese

management policies do not impose park-specific visitor

safety prescriptions. The means by which public safety

concerns are to be addressed is left to the discretion of

superintendents and other decision-makers at the park level

. . . .” Such discretion includes “whether to . . . eliminate

potentially dangerous animals.”

The manual also contains guidance specific to exotic (that

is, non-native) species, such as the mountain goats at

Olympic. It declares that such species “will be managed—up

to and including eradication—if (1) control is prudent and

feasible, and (2) the exotic species . . . creates a hazard to

public safety.” How exotic species are to be managed is not

specified. The manual, then, imposes no particular,

mandatory course of action for managing an exotic animal

that is threatening public safety.

Nor does Olympic’s park-specific Nuisance and

Hazardous Management Animal Plan. That document

12 CHADD V. U.S. NAT’L PARKS SERVICE

outlines various “management objectives” and “management

alternatives,” but nowhere does it require Park officials to use

a particular management technique when confronted with a

dangerous, exotic species. In fact, the plan indicates that

different species and contexts will require different

management options, as when it notes, “For some species,

such as black bears, a long history of management failures

and successes exists . . . . For other species, such as cougars,

few proven management techniques exist.” Chadd points to

Superintendent Gustin’s statement that the Service “move[s]

to the next level [of management techniques] or series of

levels” if “the problem isn’t going away or doesn’t seem to be

resolved,” but Gustin’s statement does not indicate that there

is a general policy or directive requiring such action or

prescribing the timing of it. As it is, nothing in the plan

mandates an escalation of management techniques.

Finally, Olympic’s Mountain Goat Action Plan lists three

forms of hazing as appropriate incident management

techniques, but it does not specify how or when they should

be deployed. The Mountain Goat Action Plan does not even

mention animal destruction, in contrast with the Cougar

Action Plan. There was, therefore, no extant statute,

regulation, or policy directive that required Park officials to

destroy the goat prior to Boardman’s death.

Indeed, Chadd acknowledges as much. In her reply brief,

Chadd states, “Contrary to the government’s principal

argument, Chadd does not argue that there is a mandatory

directive prescribing a specific course of conduct.” Instead,

“[r]easonable care, not a ‘mandatory directive,’ required

[Park officials] to shoot the goat.” But whether reasonable

care required such action goes to the merits of Chadd’s

negligence claim, not to the question of whether Park officials

CHADD V. U.S. NAT’L PARKS SERVICE 13

had discretion in deciding how to manage the problematic

goat. Chadd might very well be correct that Park officials

abused their discretion in a tortious manner, but, at step one

of the discretionary-function-exception analysis, all that

matters is that there was, in fact, discretion. See Gaubert,

499 U.S. at 322.

B

1

Chadd focuses her arguments almost exclusively on the

second step of the discretionary function analysis. She begins

by arguing that because the government is liable for a

“garden-variety tort, not a high-level policy decision,”

applying the discretionary tort exception would “contradict[]

the sovereign-immunity waiver at the heart of the FTCA.”

Gaubert, however, forecloses that argument. In Gaubert, the

Supreme Court made clear that the exception “is not confined

to the policy or planning level” and extends to “the actions of

Government agents.” 499 U.S. at 325, 323. It does not

matter, then, if the decision at issue was made by low-level

government officials, rather than by high-level policymakers.

“[I]t is the nature of the conduct, rather than the status of the

actor, that governs whether the discretionary function

exception applies in a given case.” Varig, 467 U.S. at 813;

see also Whisnant v. United States, 400 F.3d 1177, 1181 (9th

Cir. 2005) (stating that “the applicability of the exception

does not depend on whether the relevant decision was made

by an individual at the ‘operational’ or ‘planning’ level”).

14 CHADD V. U.S. NAT’L PARKS SERVICE

2

Chadd also contends that Park officials “had only one

choice: comply with their own policies requiring them to

prioritize human life and kill the goat.” As discussed above,

Chadd’s reply brief disclaims the argument that “there is a

mandatory directive prescribing a specific course of conduct.”

Instead, her argument that Park officials had “only one

choice” seems to be an echo of her claim that “[r]easonable

care, not a ‘mandatory directive,’ required [Park officials] to

shoot the goat.” But whether there was only one reasonable

course of action is not the relevant question for determining

subject matter jurisdiction under § 2680(a). Rather, the

question is whether the course of action chosen was

“susceptible to a policy analysis,” Miller, 163 F.3d at 593

(emphasis added), even if the action constituted an abuse of

policy discretion, see Bailey, 623 F.3d at 861 (noting that “the

discretionary function exception provides immunity even to

abuses of discretion”). With regard to the discretionary

function exception, our analysis of subject matter jurisdiction

is distinct from our analysis of the merits. Chadd’s argument

conflates these separate inquiries and must be rejected.

3

Chadd’s principal argument relies on our decision in

Whisnant, where we construed past precedent as holding that

“the design of a course of governmental action is shielded by

the discretionary function exception, whereas the

implementation of that course of action is not.” 400 F.3d at

1181 (emphasis omitted). This distinction between policy

design and implementation is only relevant at the second step

of the discretionary function analysis.

CHADD V. U.S. NAT’L PARKS SERVICE 15

In Whisnant, the plaintiff delivered seafood products to a

military commissary, causing him to come into contact with

“toxic mold the government negligently allowed to colonize

the commissary’s meat department over a period of three

years.” Id. at 1179. This Court held that, although “[n]o

statute, policy, or regulation prescribed the specific manner

in which the commissary was to be inspected or a specific

course of conduct for addressing mold,” the decision to

remove the mold was not one protected by the discretionary

function exception. Id. at 1181, 1183. As Whisnant stated,

“Cleaning up mold involves professional and scientific

judgment, not decisions of social, economic, or political

policy.” Id. at 1183. “Because removing an obvious health

hazard is a matter of safety and not policy, the government’s

alleged failure to control the accumulation of toxic mold . . .

cannot be protected under the discretionary function

exception.” Id.

Chadd believes the same is true of her case. In her view,

Olympic’s “failure to escalate up the levels of [the Nuisance

and Hazardous Management Animal Plan]” was a failure to

implement a safety measure, just as the failure to remove

mold was in Whisnant. She points to the repeated

acknowledgments by Park officials that the goat was

dangerous and aggressive; the fact that the hazing techniques

used by officials were known to have only a “temporary”

effect; Gustin’s statement that the usual practice is to “ramp

up” management techniques when one is not working; and

the history of incidents surrounding mountain goats in

Olympic. Chadd believes the goat was an “obvious health

hazard” that was “a matter of safety and not policy.”

Whisnant, 400 F.3d at 1183.

16 CHADD V. U.S. NAT’L PARKS SERVICE

Although Whisnant drew the distinction between policy

design and implementation, it also made clear that the

“implementation of a government policy is shielded where

the implementation itself implicates policy concerns, such as

where government officials must consider competing

fire-fighter safety and public safety considerations in deciding

how to fight a forest fire.” Id. at 1182 n.3 (second emphasis

added). Thus, this Court has subsequently stated that “so

long as a decision involves even two competing [policy]

interests, it is ‘susceptible’ to policy analysis and is thus

protected by the discretionary function exception.” Bailey,

623 F.3d at 863 (emphasis added). What distinguished the

mold situation in Whisnant is that there was no legitimate

reason for the commissary not to eliminate the toxic mold.5

But, at step two of the discretionary-function-exception

analysis, where there is even one policy reason why officials

may decide not to take a particular course of action to address

a safety concern, the exception applies. Id.; see also Soldano

v. United States, 453 F.3d 1140, 1150 (9th Cir. 2006)

(holding that the discretionary function exception did not

apply because there was “no reason” justifying the

government’s failure to implement a safety measure); Alfrey

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

only two competing policy considerations in holding that the

discretionary function exception applied); Miller, 163 F.3d at

595–96 (describing the competing policy considerations

involved in deciding how to address multiple forest fires).

5

The commissary cited budgetary concerns, but this Court has

repeatedly held that budgetary considerations, standing alone, cannot form

the basis for the application of the discretionary function exception.

Whisnant, 400 F.3d at 1183–84; ARA Leisure Servs. v. United States,

831 F.2d 193, 195–96 (9th Cir. 1987).

CHADD V. U.S. NAT’L PARKS SERVICE 17

As the district court noted, park officials evaluated

multiple policy considerations in deciding how to manage the

problematic goat. Although the goat, as an exotic species,

was not entitled to the same level of protection or

consideration as native species at Olympic, the public desired

to see the goats. Both Dr. Happe and Olympic Deputy

Superintendent Todd Suess submitted declarations stating,

“The mountain goat is an appealing, iconic animal within

Olympic . . . and is an attraction to park visitors. In the past,

the park has encountered significant opposition to possible

plans to remove some of the goats.” In light of the public’s

interest in preserving Olympic’s goats, Park officials

implemented several non-lethal management options, such as

hazing, and explored the possibility of relocating the goat.

Chadd counters that preservation of the goats is contrary

to their status as an exotic species and violates the Service’s

policy of prioritizing human safety over all other

considerations. But from the premise that the goats are not

entitled to special protection as a matter of policy, it does not

follow that Park officials ought to exterminate them. Native

species in the Park have a default level of protection that

mountain goats do not enjoy, but Chadd has pointed to

nothing that forbids Park officials from protecting the goats

to facilitate the public’s enjoyment of the species.6 There is

no contradiction between the goat’s status as an exotic

6

The officials’ interest in facilitating the public’s enjoyment of the

Park’s wildlife also distinguishes this case from the “routine tort case” the

dissent claims is analogous to this one—that of a homeowner and his

dangerous dog. Whereas the homeowner can claim no legitimate interest

in the public’s enjoyment of his dangerous pet, Park officials engaged in

wildlife management must consider the public’s interest in enjoying the

wildlife at the Park in its natural state.

18 CHADD V. U.S. NAT’L PARKS SERVICE

species and Olympic’s desire to implement safety measures

short of destruction.

As for the policy of prioritizing human safety, it is clear

that the means by which local officials ensure human safety

“is left to the discretion of superintendents and other

decision-makers at the park level.” See supra Part III.A.

Such discretion includes decisions about animal destruction.

Moreover, the Service’s policy manual lists several

competing objectives that Park officials had to consider in

assessing the goat situation, including “park resources and

values.”

Thus, in addition to the policy issues mentioned by Park

officials, the Service’s guidelines cite many competing

considerations that Olympic should have taken into account

when deciding how to deal with the problematic goat.

Whether Park officials actually took into consideration the

policy objectives listed in the Service’s guidelines is

irrelevant because the challenged decision “need not be

actually grounded in policy considerations, but must be, by

its nature, susceptible to a policy analysis.” Miller, 163 F.3d

at 593 (emphases added). Indeed, “if a regulation allows the

[governmental] employee discretion,” as it did here, there is

“a strong presumption that a discretionary act authorized by

the regulation involves consideration of the same policies

which led to the promulgation of the regulations.” Gaubert,

499 U.S. at 324. Park officials need only point to “some

support in the record that the decisions taken [were]

‘susceptible’ to policy analysis for the discretionary function

exception to apply,” and that standard is more than met here.

Terbush, 516 F.3d at 1134. The holding of Whisnant is thus

inapplicable, as the implementation of the safety regulation

was itself subject to competing policy concerns. Bailey,

CHADD V. U.S. NAT’L PARKS SERVICE 19

623 F.3d at 863. Because the decision to use non-lethal

methods to manage the goat was susceptible to policy

analysis, the discretionary function exception applies.

IV

The district court’s order dismissing this case for lack of

subject matter jurisdiction is AFFIRMED.

BERZON, Circuit Judge, concurring:

I concur in Judge O’Scannlain’s opinion, which I believe

correctly applies our precedents regarding the discretionary

function exception to the troubling facts of this case. I agree

with Judge Kleinfeld, however, that our jurisprudence in this

area has gone off the rails. In particular, in my view, Miller

v. United States was wrong when it concluded that the

decision at issue “need not be actually grounded in policy

considerations” but need only be, “by its nature, susceptible

to a policy analysis.” 163 F.3d 591, 593 (9th Cir. 1998); see

also GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174,

1178 (9th Cir. 2002).

Miller purported to derive that rule from United States v.

Gaubert, 499 U.S. 315 (1991). But that is not what Gaubert

says—it says the opposite, that “the exception protects only

governmental actions and decisions based on considerations

of public policy.” Id. at 323 (emphasis added, internal

quotation marks omitted).

Gaubert then went on to indicate that susceptibility to a

policy analysis, which Miller elevated to the ultimate

20 CHADD V. U.S. NAT’L PARKS SERVICE

question, was relevant insofar as it established a strong

presumption “that the agent’s acts are [in fact] grounded in

policy.” Id. at 324. But nothing in Gaubert suggests that the

presumption is not rebuttable, or switches the foundational

question from whether the decision was “based on

considerations of public policy” to whether it hypothetically

could have been.

Were I considering the issue in the first instance, I would

hold that the Gaubert presumption can be rebutted with a

clear showing that a decision was not actually based on

policy considerations, even if the decision was susceptible to

a hypothetical policy analysis. In other words, in my view

the proper rule is this: In every case, the relevant decision

does need to be “actually grounded in policy considerations,”

but, as a practical and evidentiary matter, the fact that a

decision is “susceptible to a policy analysis” creates a strong

presumption that it was actually made for policy reasons,

rebuttable only by persuasive evidence to the contrary. See

Miller, 163 F.3d at 593.

Miller is the law of our circuit, however, and contrary to

Judge Kleinfeld’s wishful thinking, has not been limited or

undermined. See GATX/Airlog Co., 286 F.3d at 1174, 1178.

While I believe Miller should be reconsidered, we are bound

to apply it. See Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir. 2003) (en banc). I therefore, with some reluctance,

concur.

KLEINFELD, Senior Circuit Judge, dissenting:

I respectfully dissent.

CHADD V. U.S. NAT’L PARKS SERVICE 21

A Supreme Court concurrence commented that the courts

have had “difficulty in applying” the rule for deciding which

government actions fall within the discretionary function

exception.1 Indeed. In this case, we have allowed the

discretionary function exception to swallow the statutory rule

that the federal government waives its sovereign immunity

for torts for which an ordinary person would be liable. Under

the Court’s opinions in United States v. Gaubert2 and

Berkovitz v. United States,3 the negligence in this case falls

outside the discretionary function exception. The majority

mistakenly expands the exception and contracts the rule, and

thereby creates tension with our recent decision in Young v.

United States4 as well as Whisnant v. United States5 and Bear

Medicine v. United States.6

The Federal Tort Claims Act says that the government

“shall be liable . . . [for torts] in the same manner and to the

same extent as a private individual under like

circumstances.”7 This broad waiver is subject to an exception

for claims “based upon the exercise or performance or the

1

United States v. Gaubert, 499 U.S. 315, 335 (1991) (Scalia, J.,

concurring in part and concurring in the judgment).

2

499 U.S. 315 (1991).

3

486 U.S. 531 (1988).

4

769 F.3d 1047 (9th Cir. 2014).

5

400 F.3d 1177 (9th Cir. 2005).

6

241 F.3d 1208 (9th Cir. 2001).

7

28 U.S.C. § 2674.

22 CHADD V. U.S. NAT’L PARKS SERVICE

failure to exercise or perform a discretionary function or duty

. . . whether or not the discretion involved be abused.”8 The

language appears clear, but the application is not.

The fundamental problem the courts have had applying

the exception is that all but strict liability torts involve the

exercise of discretion. How much slower than the speed limit

should I drive in rain and fog?9 Should I trim this tree

because a limb overhangs the sidewalk and could conceivably

fall on a pedestrian in a windstorm?10 Or shall I leave it alone

because of the aesthetic pleasure it gives to me and

passersby? Must I have my dog put down because it may bite

the child next door if he trespasses, or can I continue to enjoy

my dog?11 Shall I (a physician) get an expensive CT scan for

this patient to rule out a highly unlikely diagnosis?12 Shall we

quit manufacturing our cheap ladders and triple the price to

make ladders that do not collapse or tip even when people use

them improperly?13 Replace all the seats in our 747’s with

new, more fire-resistant seats? Shall we recall all our chain

saws, or all our cars, because of very slight risks?

8

Id. § 2680(a).

9

See Restatement (Third) of Torts: Liability for Physical and Emotional

Harm § 16 cmt. e (2010) [hereinafter Restatement (Third) of Torts].

10

See id. § 7 cmt. b, illus. 1.

11

See id. § 23 cmt. i; Restatement (Third) of Torts: Liability for Physical

and Emotional Harm § 51 cmt. l (2012).

12

See Restatement (Third) of Torts, supra note 9, § 26 cmt. n.

13

See Restatement (Third) of Torts: Products Liability § 2 cmt. d, cmt.

p, illus. 20 (1998).

CHADD V. U.S. NAT’L PARKS SERVICE 23

If those were the kinds of discretionary decisions the

statutory exception meant to cover, then the statutory “private

individual” rule would be nearly nullified, applying only to

negligence per se, where a statute or regulation left no

discretion in the matter. The Supreme Court has grappled

with this verbal difficulty and narrowed the discretionary

function exception to the kind of policy discretion that only

the government exercises. Even this limitation is hard to

apply, because the homeowner deciding whether to cut the

tree limbs herself balances the public interest in a pretty walk

down the street against the public interest in avoidance of the

risk from a falling branch. So policy choices, for the

exception to be cabined at all, have to be limited to peculiarly

governmental ones. This is difficult too, because the private

interests that private individuals have often coincide with

public interests, as in lower prices or greater aesthetic appeal,

and government undertakes many tasks generally or

previously performed privately.

The holding of the majority opinion appears to be that if

no law or regulation mandates or prohibits the government’s

action or inaction, and even one “policy” reason can be

adduced before or after to justify the government’s action or

inaction, then the exception applies. This limits the waiver of

sovereign immunity to negligence per se and conduct that in

no way can be rationalized after the fact. The majority fails

to draw the distinction that the Supreme Court has struggled

to formulate, between a “policy” reason and a mere after-the-

fact rationalization or personal preference of a government

employee or official.

There never was a park policy to leave dangerous animals

alone because “the public desired to see the goats,” the policy

reason upon which the majority relies. This was a park, not

24 CHADD V. U.S. NAT’L PARKS SERVICE

a zoo with caged animals, and the express formal park policy

was to protect the public from dangerous animals. Only after

the goat killed Mr. Boardman did the Park come up with the

rationalization for their inaction that “the public desired to see

the goats.” The park staffs shot and killed the goat

immediately after it killed Mr. Boardman. The discretionary

function exception should be construed as limited to decisions

where a government policy decision guided the exercise of

discretion, and not expanded to situations where it did not,

even when a policy judgment can subsequently be imagined

and articulated. We rejected such an after-the-fact

rationalization in Bear Medicine v. United States: “our

inquiry into the nature of a decision is not meant to open the

door to ex post rationalizations by the Government in an

attempt to invoke the discretionary function shield.”14

Letting an identified aggressive 370-pound goat threaten

park visitors and rangers for years until it killed one

amounted to a failure to implement the formally established

park policy for managing dangerous animals. Written park

policy provided a series of steps for dealing with animals

dangerous to park visitors, from frightening the animal away

to removing or killing it. The Park had used the earlier steps,

including repeatedly shooting the goat with nonlethal loads

such as beanbags, but they did not work. Yet the

superintendent left the animal free to terrorize tourists for

another summer season instead of following the next step of

the written policy, removing or killing it. This was “ordinary

garden-variety negligence,”15 like keeping a dog that has

14

241 F.3d 1208, 1216 (9th Cir. 2001).

15

ARA Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir. 1987)

(internal quotation marks omitted).

CHADD V. U.S. NAT’L PARKS SERVICE 25

already bitten a child, and subsequently bites another.

Official park policy for Olympic National Park put protection

of human life ahead of protection of animal life, and did not

protect nonindigenous animals such as this goat. Failure to

implement this policy was not another policy, just ordinary

negligence.

FACTS

Like a lot of national park visitors, the Boardmans and

their friend were aging tourists. Mr. Boardman, 63, was

killed by a horned animal bigger than an NFL lineman, that

had been the terror of the Park for four years. The 370-pound

goat spotted them as they enjoyed a picnic, and approached,

pawing the ground, and menacing them. It was too close to

throw rocks at it, so Mr. Boardman tried to hold it off with his

walking stick as they retreated. They walked away from it for

about a mile, with Mr. Boardman in the rear protecting the

ladies with his stick, but the goat would not go away. Then

the goat attacked Mr. Boardman, gored him, and stood over

him, keeping assistance away, as he bled to death. Too late

for Mr. Boardman, park rangers finally carried out park

policy for dangerous animals. A couple of hours after it had

killed Mr. Boardman, park rangers easily found the goat

about a half mile away, his horns stained with Mr.

Boardman’s blood, and shot it dead.

This was no random, unpredictable, animal attack. Park

personnel knew this particular goat and had been dealing with

its unusual, aggressive behavior toward them and toward park

visitors for four years. The park personnel had even named

it, “Klahhane Billy,” whom they well knew to be the terror of

the heavily used Switchback Trail on Klahhane Ridge. A

written report in 2006, four years before the goat killed Mr.

26 CHADD V. U.S. NAT’L PARKS SERVICE

Boardman, said that a goat aggressively followed hikers and

retreated only after being beaten with a walking stick. The

Park received four more reports of an aggressive goat the next

year, 2007. These were not just reports from visitors of

perhaps timorous temperaments. One was from a park

ranger, who said that the goat blocked the trail, chased her for

two miles, and tried to charge her.

Recognizing the danger, rangers began monitoring the

goats and placed warning signs at trail heads. Three years

before the goat killed Mr. Boardman, 2007, eleven goats were

captured and collared with GPS units. That is when

Klahhane Billy was identified as the “only . . . collared

animal in this area that was recorded to have aggressive

behavior.” Two years before it killed Mr. Boardman, in

2008, when the park officials knew which goat was the

problem, a hiker reported that the goat chased him at a

“jogging pace.” Since the park officials knew that Klahhane

Billy threatened people and did not fear them, park personnel

began using what they called “aversive conditioning

techniques.” That meant yelling and throwing rocks at

Klahhane Billy to teach it to fear and avoid people. The

“aversive conditioning” did not work. Hikers continued to

report aggressive goat incidents as the 2008 season drew to a

close.

By the next summer, 2009, park personnel knew that

Klahhane Billy was dangerous and that the “aversive

conditioning techniques” had failed. The Park

Superintendent, Karen Gustin, had been so advised. The

Park’s Wildlife Branch Chief and biologist, Dr. Patti Happe,

sent her an email in June of 2009, a year before it killed Mr.

Boardman, warning that Klahhane Billy was getting worse.

She was getting reports of risk of injury even from her

CHADD V. U.S. NAT’L PARKS SERVICE 27

predecessor, and “it may be only an [sic] matter of time until

someone is hurt”:

As you know, this goat has been a problem for

several years now . . . and is behaving in an

increasing[ly] aggressive manner. This year

I am getting reports of people feeling that

the[y] are at risk of injury (including my

predecessor in this job who has a lot of

experience working with goats).

He is definitely negatively impacting the Park

visitors ability to experience and enjoy the

area trails, and it may be only an [sic] matter

of time until someone is hurt. (Emphasis

added).

Two days after the email, Gustin directed more aversive

conditioning, and rangers began patrolling with paintball and

bean-bag guns to shoot the goat.

During the 2009 season, the escalated aversive

conditioning continued to fail. The next month, July 2009,

Billy charged a family twice. Fortunately, the father was able

to protect his wife and children by throwing rocks at it. Park

rangers then shot the goat with paintballs and bean bags, but

even having been shot with these weapons (which tourists

visiting national parks would not have), Billy returned to the

trail within fifteen minutes. Nor did the impacts from these

weapons persuade the goat to avoid people. In October 2009,

Billy chased another park visitor down the trail.

The next season, the summer of 2010, reports got worse.

Klahhane Billy butted a hiker with its head but fortunately did

28 CHADD V. U.S. NAT’L PARKS SERVICE

not gore him. On July 5, 2010, another park ranger, Sanny

Lustig, sent an email to park employees referencing multiple

aggressive attacks by this identified animal. She wrote “his

MO is to follow people to the trailhead, rear up and come in

close proximity brandishing his hooves, and the latest was an

actual report of a head butt. He’s big, he’s not wary, he

pesters, he looks mean and as if he’ll get aggressive.”

In response to this escalating aggression, Dr. Patti Happe,

the chief biologist, wrote “[i]f he has indeed made contact

with someone via head-butting, it may be time to talk about

taking the next step before someone gets hurt.” The next

steps under written policy, the Park’s Nuisance and

Hazardous Animal Management Plan, would have been

capture and release, capture and translocation, and destruction

of the animal. Two days later, another biologist reported that

the goat chased her. She said “I am skeptical that a bit of

adverse conditioning will do much for him. He sees hundreds

of harmless people every day. . . . I was shocked by how

determined he was. I caught him 4 times with rocks to no

effect. He could be really scary to many people.”

In late July 2010, two and a half months before the goat

killed Mr. Boardman, the Park, recognizing the failure of its

“aversive conditioning techniques,” finally decided to

consider other management options including relocating the

goat. Dr. Happe wrote an email to a biologist with

Washington Department of Fish and Wildlife on July 30,

2010:

As I mentioned on the phone, we have a

mature billy on the [sic] at the hurricane ridge

area of Olympic National Park that has

become very habituated and not responding to

CHADD V. U.S. NAT’L PARKS SERVICE 29

our efforts to have him keep at a greater

distance from people. Recently, he has been

becoming increasingly aggressive and park

management would like to explore other

management options for him, including

relocation from the area.

According to Dr. Happe’s subsequent email to Superintendent

Gustin and other park employees, the state’s biologist “was

very willing to help, is thinking about alternatives ranging

from relocation . . . or to captivity, and will help with the

capture.” Gustin replied, “[t]his sounds like good news.” But

despite having explored the relocation option successfully,

the Park Superintendent did not do it.

The record does not show that the Park did anything about

the goat at all in the next two and a half months. Nor does the

record show any decision or decision-making process by the

Park Superintendent, Karen Gustin, about whether to accept

the state’s offer to have the goat relocated to state land or

have the goat killed. In October, at the end of the summer

season, nothing having been done to protect park visitors,

Klahhane Billy killed Mr. Boardman.

ANALYSIS

The Federal Tort Claims Act makes the United States

liable for tort claims to the same extent “as a private

individual under like circumstances.”16 The Act intended to

compensate those harmed by government negligence. We

have held that “it should be construed liberally, and its

16

28 U.S.C. § 2674.

30 CHADD V. U.S. NAT’L PARKS SERVICE

exceptions should be read narrowly.”17 The exceptions are

voluminous, for intentional torts such as assault, battery,

malicious prosecution, libel, slander, deceit, and the like, as

well as for various government functions such as tax

collection and delivery of the mail,18 and damages are limited

to compensatory damages without interest.19 The torts for

which sovereign immunity is waived are mainly traditional

common-law negligence.

The exception at issue in this case, the “discretionary

function” exception, excludes from this broad waiver of

immunity “[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.”20 This limited exception

protects only “political, social, and economic judgments that

are the unique province of the Government.”21 It therefore

does not shield government negligence from liability merely

on the grounds that the action or inaction involved, as almost

all negligence does, some element of discretion.

17

Terbush v. United States, 516 F.3d 1125, 1135 (9th Cir. 2008)

(internal quotation marks omitted).

18

28 U.S.C. § 2680.

19

Id. § 2674.

20

Id. § 2680(a).

21

Bear Medicine v. United States, 241 F.3d 1208, 1214 (9th Cir. 2001)

(internal quotation marks omitted).

CHADD V. U.S. NAT’L PARKS SERVICE 31

In determining whether this exception applies, “the

question of whether the government was negligent is

irrelevant.”22 The question of how the government was

negligent remains “critical.”23 “[D]etermining the precise

action the government took or failed to take (that is, how it is

alleged to have been negligent) is a necessary predicate” to

determining the applicability of the discretionary function

exception.24 The majority mistakenly characterizes Chadd’s

allegation of wrongdoing as challenging only the Park’s

failure to kill the goat, omitting the available removal option.

Chadd challenges “[f]ailing to remove or destroy” the goat,

analogizing Superintendent Gustin’s non-decision and

inaction to that of a landowner who knows of and fails to

exercise reasonable care to protect invitees from an

unreasonable risk of harm that the landowner cannot

reasonably expect them to discover and protect themselves

against. The argument is that she knew aversive conditioning

(yelling and throwing rocks at the goat and even shooting it

with nonlethal weapons) had failed and the goat was getting

more aggressive, yet did nothing more to protect park visitors

from it.

Chadd concedes that there was no mandatory directive

prescribing a specific course of conduct at a certain time.

This is not a negligence-per-se case. In negligence per se,

“[a]n actor is negligent if, without excuse, the actor violates

a statute that is designed to protect against the type of

accident the actor’s conduct causes, and if the accident victim

22

Whisnant v. United States, 400 F.3d 1177, 1185 (9th Cir. 2005).

23

Young v. United States, 769 F.3d 1047, 1054 (9th Cir. 2014).

24

Id.

32 CHADD V. U.S. NAT’L PARKS SERVICE

is within the class of persons the statute is designed to

protect.”25 The kind of negligence alleged in Berkovitz v.

United States, where a federal agency issued a license to a

polio vaccines manufacturer without first receiving the

product safety information required by the regulation, was of

that sort; the violation of law amounted to negligence.26

Compliance with statutes and rules, though, does not preclude

a finding that the actor is negligent. “An actor’s compliance

with a pertinent statute, while evidence of nonnegligence,

does not preclude a finding that the actor is negligent . . . for

failing to adopt precautions in addition to those mandated by

the statute.”27 If the speed limit is 55, but in the darkness, ice

and snow prevailing at the time, a reasonable and prudent

driver would go no faster than 35 or 40, then a speed of 50,

though well within the speed limit, may be negligent.

Likewise, the federal government is not shielded from

liability because Superintendent Gustin did not violate a

specific statutory or regulatory command. Plaintiff’s case is

indeed, as appellants argue, a garden-variety negligence of a

land possessor case, controlled by the tort law of

Washington.28 The exceptions to the Federal Tort Claims Act

do not purport to limit the government waiver of sovereign

immunity to negligence-per-se cases.

The simplistic view that if no regulation prohibited or

required different conduct, then the government actor had

25

Restatement (Third) of Torts, supra note 9, § 14.

26

486 U.S. 531, 542–43 (1988).

27

Restatement (Third) of Torts, supra note 9, § 16(a).

28

See Iwai v. State, 915 P.2d 1089, 1093 (Wash. 1996).

CHADD V. U.S. NAT’L PARKS SERVICE 33

discretion, and if the government actor had discretion, then

the discretionary function exception shields the government,

is bad law, rejected by the Supreme Court. The Park’s

management of the goat “involve[d] an element of judgement

or choice.”29 That is indeed the first step of analysis for the

discretionary function exception under Berkovitz v. United

States. But just as the 55 speed limit does not immunize

someone driving at 50 on ice, an element of discretion

allowed to the government actor is only necessary and not

sufficient to invoke the discretionary function exception.

The controlling question is whether the particular exercise

of discretion was “of the kind that the discretionary function

exception was designed to shield.”30 Many attempts, none

entirely successful, have been made to provide a general

statement of what sorts of exercises of discretion are of this

kind. They are best sorted out and applied in light of the

purposes of the waiver of sovereign immunity and the

exception. The waiver is intended to make the government

responsible for garden-variety torts such as mail truck

collisions occasioned by their drivers’ negligence. As the

Supreme Court held in Indian Towing Co. v. United States,

“[t]he broad and just purpose which the statute was designed

to effect was to compensate the victims of negligence in the

conduct of governmental activities in circumstances like unto

those in which a private person would be liable and not to

leave just treatment to the caprice and legislative burden of

individual private laws.”31 The exception is intended to

29

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

30

Id.

31

350 U.S. 61, 68–69 (1955).

34 CHADD V. U.S. NAT’L PARKS SERVICE

enable government to make and act upon policy

determinations without court interference with the social

judgments made by the political branches. As the Court held

in United States v. Varig Airlines, “Congress wished to

prevent judicial ‘second-guessing’ of legislative and

administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort.”32

To understand what constitutes the exercises of discretion

“of the kind that the discretionary function exception was

designed to shield,”33 it is necessary to look at the cases that

the exception applied.34 The Supreme Court in Dalehite v.

United States held that the discretionary function exception

applied to the government’s operation of a program for

supplying fertilizer to countries at risk of famine after World

War II, when the fertilizer exploded, killed many people, and

leveled a town.35 The Dalehite rule is that the discretionary

function exception applies to “more than the initiation of

programs and activities. It also includes determinations made

by executives or administrators in establishing plans,

specifications or schedules of operations.”36 Superintendent

Gustin’s failure to do anything about the goat when nonlethal

aversive conditioning had failed falls into none of these

immunized categories.

32

467 U.S. 797, 814 (1984).

33

Berkovitz, 486 U.S. at 536.

34

See Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co. of Cal.,

153 F.3d 938, 946 (9th Cir. 1998).

35

346 U.S. 15, 42 (1953).

36

Id. at 35–36.

CHADD V. U.S. NAT’L PARKS SERVICE 35

The Court in Indian Towing Co. v. United States limited

Dalehite. A tugboat had run aground because the Coast

Guard failed for three weeks (not years, as in our case) to

discover and repair a bad connection for the light in a

lighthouse.37 The Court held that despite operation of the

lighthouse being uniquely governmental, once the

government made a policy decision to operate a light at the

location, it “was obligated to use due care” in operating and

maintaining it.38 Likewise, the government did not have to

establish Olympic National Park, but once it made the policy

decision to do so, it was obligated to exercise due care for the

safety of the tourists it invited in.

The Supreme Court decisions applying the exception

since Indian Towing have all involved high policy and

complex regulatory regimes, not garden-variety torts

committed in the course of day-to-day operations. All

involved supervision by government of the conduct of private

individuals, which this case does not. The park regulation

prohibiting visitors from carrying guns to protect themselves

from dangerous animals is a policy decision regulating the

conduct of private individuals,39 but this case did not involve

park policy regulating visitors such as Mr. Boardman, just

park execution of its own programs. United States v. Varig

Airlines shielded Federal Aviation Administration’s “type

certification” allowing Boeing to use its proposed design for

37

Indian Towing Co. v. United States, 350 U.S. 61, 62 (1955).

38

Id. at 69.

39

Cf. 36 C.F.R. § 2.4.

36 CHADD V. U.S. NAT’L PARKS SERVICE

its 707 passenger jet,40 which we relied on in GATX/Airlog

Co. v. United States, another type certification case.41 The

Court held that the discretionary function exception shields

discretionary acts “of the Government acting in its role as a

regulator of the conduct of private individuals.”42

Superintendent Gustin failing to deal with the Klahhane

Billy’s aggressiveness might be characterized as a regulator

of a goat, but not as “a regulator of the conduct of private

individuals.” The reason for the “regulator” rule is that

Congress, by means of the discretionary function exception,

“wished to prevent judicial ‘second-guessing’ of legislative

and administrative decisions grounded in social, economic,

and political policy through the medium of an action in

tort.”43

Likewise in Berkovitz v. United States, the government

conduct involved was regulatory, licensing of polio vaccine.44

The Court held that the exception shielded formulation of

policy as to how to regulate release of vaccine, and policy

judgments of officials exercising discretion in the application

of these policies, but not negligent acts of officials carrying

out those policy judgments rather than making them.45 The

Court’s most recent explanation of the discretionary function

40

467 U.S. 797, 815–16 (1984).

41

286 F.3d 1168, 1175, 1178 (9th Cir. 2002).

42

Varig Airlines, 467 U.S. at 813–14.

43

Id. at 814.

44

486 U.S. 531, 533 (1988).

45

Id. at 546–48.

CHADD V. U.S. NAT’L PARKS SERVICE 37

exception, in United States v. Gaubert, like Varig Airlines,

shields government discretion in how it regulates private

firms and individuals.46 The challenge was to how the

Federal Home Loan Bank Board exercised its discretion in

regulating the reorganization of a failed savings bank. The

Court rejected the view that the government’s liability turns

on whether the individual making the decision was of a high

enough status so that her official responsibilities included an

assessment of social, economic, or political policy. “[I]t is

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

that governs whether the exception applies.”47 And Gaubert

rejected, as Berkovitz had, the proposition that if the action

involved an element of judgment or discretion, it was

shielded. For the exception to apply, the particular exercise

of discretion must be “of the kind that the discretionary

function exception was designed to shield. . . . [W]hen

properly construed, the exception protects only governmental

actions and decisions based on considerations of public

policy.”48 Though “[w]hen established governmental policy

. . . allows a Government agent to exercise discretion, it must

be presumed that the agent’s acts are grounded in policy

when exercising that discretion,” the exception does not apply

where “the challenged actions are not the kind of conduct that

can be said to be grounded in the policy of the regulatory

regime.”49 No regulatory regime was involved in our case,

just the day-to-day business of protecting park visitors from

46

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

47

Id. at 322 (internal quotation marks omitted).

48

Id. at 322–23 (internal quotation marks omitted).

49

Id. at 324–25.

38 CHADD V. U.S. NAT’L PARKS SERVICE

unsafe conditions, like the land condition we deemed not to

be immunized in Young v. United States.50

The majority holds that if no statute or regulation

mandates a different conduct, the exception applies as long as

one “policy” reason can be articulated to justify the

government’s acts. Relying on a statement in Miller v.

United States that “[t]he decision need not be actually

grounded in policy considerations, but must be, by its nature,

susceptible to a policy analysis,”51 the majority concludes that

“[w]hether Park officials actually took into consideration the

policy objectives listed in the Service’s guidelines is

irrelevant.” That is, the majority deems it “irrelevant” that

Superintendent Gustin did not in fact decide against

relocating or shooting the goat because park visitors liked to

see the goats, or decide on a park policy to preserve all goats

for this reason. The majority “misconstrues Miller in . . .

fundamental ways.”52

We clarified in Bear Medicine v. United States that the

quoted language in Miller “was used illustratively to draw a

distinction between protected discretionary activities (e.g.,

selecting the method of supervising savings and loan

associations) and unprotected discretionary activities (e.g.,

driving a car), not to widen the scope of the discretionary

rule.”53 The language was merely “a paraphrase of a section

50

See 769 F.3d 1047, 1059 (9th Cir. 2014).

51

163 F.3d 591, 593 (9th Cir. 1998).

52

Bear Medicine v. United States, 241 F.3d 1208, 1216 (9th Cir. 2001).

53

Id. (emphasis added).

CHADD V. U.S. NAT’L PARKS SERVICE 39

of the Supreme Court’s opinion in United States v.

Gaubert.”54 Gaubert did not hold that any decision, so long

as it is made by a high-ranking official with policymaking

responsibilities, is protected if a single “policy” reason can be

adduced before or after to justify the decision. Quite the

opposite. It held that “it is the nature of the conduct, rather

than the status of the actor that governs whether the exception

applies.”55 The majority’s approach amounts to adopting the

rule that Justice Scalia suggested in his concurring opinion of

Gaubert, that the exception shields any choice “that ought to

be informed by considerations of social, economic, or

political policy and is made by an officer whose official

responsibilities include assessment of those considerations.”56

That is not the law articulated by the majority in Gaubert, nor

was dealing with this goat exercise of regulatory authority, as

Gaubert was.

To the extent we narrow the waiver of sovereign

immunity, as we do in this case, we undermine the

congressional decision that “[t]he United States shall be liable

. . . [for torts] in the same manner and to the same extent as a

private individual under like circumstances.”57 The existence

of discretion is of little value for distinguishing private

individuals’ negligence liability from governmental liability.

The basic principle of negligence is that one “acts negligently

if the person does not exercise reasonable care under all the

54

Id.

55

Gaubert, 499 U.S. at 322 (internal quotation marks omitted).

56

Id. at 335 (Scalia, J., concurring in part and concurring in the

judgment).

57

28 U.S.C. § 2674.

40 CHADD V. U.S. NAT’L PARKS SERVICE

circumstances,” considering such factors as the foreseeable

likelihood of harm, the foreseeable severity of harm that may

ensue, and the burden of precautions to eliminate or reduce

the risk.58 The exercise of discretion is the essence of most

negligence. The Federal Tort Claims Act extends to the

government liability for negligent exercise of discretion,

except for the “political, social, and economic judgments that

are the unique province of the Government,”59 generally

involving government regulation of private conduct.

Congress chose to abolish the federal government’s sovereign

immunity for garden-variety negligence, which necessarily

includes such conduct involving the exercise of discretion.

We have developed two principles relevant to the

determination whether a challenged government decision was

policy-based or susceptible to policy analysis. First, “we

have generally held that the design of a course of

governmental action is shielded by the discretionary function

exception, whereas the implementation of that course of

action is not.”60 The exception does not shield a failure to

implement a safety policy even when the policy does not

mandate a specific action at a certain time.61 This follows

Indian Towing Co. v. United States, where once the Coast

Guard decided to establish a lighthouse, failing to keep it in

58

Restatement (Third) of Torts, supra note 9, § 3.

59

Bear Medicine, 241 F.3d at 1214 (internal quotation marks omitted).

60

Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005).

61

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

1987).

CHADD V. U.S. NAT’L PARKS SERVICE 41

good working order is not immunized.62 Second, we may

protect a failure to implement a policy if the implementation

“itself implicates policy concerns.”63 To apply this complex

test, we ask whether the implementation of an established

policy requires objective determinations based on

professional and scientific judgment or a weighing of

competing public policy considerations.64

In this case, no decision was made based on competing

public policy considerations to let the goat continue

terrorizing the tourists. After the goat killed Mr. Boardman,

Dr. Happe, the Park’s chief biologist, wrote a declaration for

this lawsuit saying that the goats in the Park were “iconic”

and that visitors liked seeing them. But neither she nor any

other park personnel submitted any evidence that they had

decided, before the goat killed Mr. Boardman, to let the goat

stay in the Park for this or any other reason.

We held that the implementation of safety measures itself

implicated public policy concerns where the Forest Service in

Miller v. United States balanced competing firefighter safety

and public safety interests in deciding how to fight multiple

forest fires,65 and where the Army Corp of Engineers in

Bailey v. United States balanced its workers’ safety and the

public safety interests in deciding when to replace the

62

350 U.S. 61, 69 (1955).

63

Terbush v. United States, 516 F.3d 1125, 1133 (9th Cir. 2008)

(quoting Whisnant, 400 F.3d at 1182 n.3).

64

Soldano v. United States, 453 F.3d 1140, 1148 (9th Cir. 2006);

Whisnant, 400 F.3d at 1181.

65

163 F.3d 591, 595–96 (9th Cir. 1998).

42 CHADD V. U.S. NAT’L PARKS SERVICE

warning signs in a flooded river.66 In these cases, protecting

the general public would have entailed considerable risk to

the lives of the federal workers. And in both, a decision was

made based upon deliberation about these considerations.

They were not after-the-fact justifications for litigation

purposes, like the “policy” claim made in this case.

In Whisnant v. United States, we held that the

government’s failure to inspect a grocery store on a naval

base periodically and clean up mold was not protected.67

Whisnant, an employee of government contractor, claimed

that he became ill as a result of regular exposure to the toxic

mold in the store’s meat department.68 We held that “the

government’s duty to maintain its grocery store as a safe and

healthy environment for employees and customers is not a

policy choice of the type the discretionary function exception

shields. Cleaning up mold involves professional and

scientific judgment, not decisions of social, economic, or

political policy.”69

In ARA Leisure Services v. Unites States, while the Park

Service’s decision to design the Denali Park Road without

guardrails was protected because the Park had a policy that

roads should “lie lightly upon the land,” the Park’s failure to

maintain the road in a safe condition was not protected.70 The

66

623 F.3d 855, 861–62 (9th Cir. 2010).

67

400 F.3d 1177, 1183 (9th Cir. 2005).

68

Id. at 1179.

69

Id. at 1183.

70

831 F.2d 193, 195 (9th Cir. 1987).

CHADD V. U.S. NAT’L PARKS SERVICE 43

road at Thoroughfare Pass in Denali National Park had

eroded from an original width of twenty-eight feet to a width

of 14.6 feet and had edges so soft to cause a tour bus to go off

road and kill passengers.71 In Bear Medicine v. United States,

a member of a tribe was fatally injured when a tree cut by an

employee fell and struck him during a private logging

operation that the Bureau of Indian Affairs authorized.72 The

BIA was required to ensure that the logging operation

complied with the safety regulations, but few employees were

formally trained in basic safety procedures and none had been

trained in first aid.73 The government argued that it had a

policy of promoting independence in the operation of the

Indian Tribes and that its actions were taken due to limited

resources. We held that even if the BIA had discretion in its

monitoring of the logging operation, its actions in carrying

out its responsibilities (i.e., failure to require safety measures

or training) were not protected policy judgments.74 “[S]afety

measures, once undertaken, cannot be shortchanged in the

name of policy. Indeed, the crux of our holdings on this issue

is that a failure to adhere to accepted professional standards

is not susceptible to a policy analysis.”75 Likewise here,

failure to implement established park policy was not itself an

immunized policy judgment.

71

Id.

72

241 F.3d 1208, 1215 (9th Cir. 2001).

73

Id. at 1212.

74

Id. at 1215.

75

Id. at 1216–17 (internal quotation marks omitted).

44 CHADD V. U.S. NAT’L PARKS SERVICE

Other cases have ruled similarly. In Oberson v. United

States Department of Agriculture, the discretionary function

exception did not protect the Forest Service’s failure to post

a warning or remedy a hazard on a snowmobile trail, because

it did not involve considerations of public policy.76 In

Soldano v. United States, the exception barred a claim that the

Park Service negligently designed a road without warning

signs, but it did not immunize the Park’s negligence in setting

a speed limit for the road, because the speed limit decision

involved “objective safety criteria” in a park road plan.77 In

Summers v. United States, the exception did not protect the

Park Service’s failure to warn visitors of hot coals on a beach

where fires were permitted, because (as in the case before us)

it “resemble[d] more a departure from the safety

considerations established in Service policies” than a public

policy-based decision.78 In Bolt v. United States, the Army’s

failure to remove snow and ice from parking lot was not

protected.79 All these involved the exercise of discretion, as

almost all negligence does. But as in this case, the particular

exercise of discretion at issue did not require a weighing of

public policy considerations.

The policies actually enacted for Olympic National Park,

before the goat killed Mr. Boardman, prioritized protecting

visitors’ lives over protecting killer goats, “iconic” or not,

aesthetically pleasing to visitors or not. Under the National

76

514 F.3d 989, 998 (9th Cir. 2008).

77

453 F.3d 1140, 1147 (9th Cir. 2006).

78

905 F.2d 1212, 1216 (9th Cir. 1990).

79

509 F.3d 1028, 1034 (9th Cir. 2007).

CHADD V. U.S. NAT’L PARKS SERVICE 45

Park Service Management Policies, “[t]he saving of human

life will take precedence over all other management actions

as the Park Service strives to protect human life and provide

for injury-free visits.”80 This policy could have been

otherwise, as in ARA Leisure Services v. Unites States, a

policy to let the road “lie lightly upon the land,” effectively

prioritizing aesthetics over human safety.81 This written,

established National Park Service policy prioritizing “human

life” and “injury-free visits” “over all other management

actions,” applicable to this case, is the sort that has been

immunized as “the kind that the discretionary function

exception was designed to shield.”82 It cannot be reconciled

with Superintendent Gustin’s prioritizing of an identified

single goat, “iconic” or not, over human safety. The National

Park Service policy provides that “[t]he means by which

public safety concerns are to be addressed is left to the

discretion of superintendents and other decision-makers at the

park level,” but not whether to address them.83

In order to address this policy mandate “to protect human

life and provide for injury-free visits,” Olympic National Park

adopted a “Nuisance and Hazardous Animal Management

Plan.” Superintendent Gustin described this plan as a

“guiding document that directs [employees’] activities.” The

“Mountain Goat Action Plan” was included in the Animal

Management Plan. The goat plan does not say one way or the

80

Nat’l Park Serv., Management Policies 2006, § 8.2.5.1.

81

See 831 F.2d 193, 195 (9th Cir. 1987).

82

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

83

Nat’l Park Serv., Management Policies 2006, § 8.2.5.1.

46 CHADD V. U.S. NAT’L PARKS SERVICE

other whether to kill aggressive and dangerous goats that do

not respond to“aggressive hazing.” Since the park staffs

killed the goat within a couple of hours of when the goat had

killed Mr. Boardman, they obviously did not think the

Mountain Goat Action Plan prohibited killing dangerous

goats, though it did not say one way or the other.

Superintendent Gustin admitted that Klahhane Billy had been

managed, and was eventually killed, pursuant to the Nuisance

and Hazardous Animal Management Plan.

The Nuisance and Hazardous Animal Management Plan

states that individual animals may be controlled or removed

only for specific reasons, one of which is to protect human

health and safety. It sets forth “a sequence of escalating

management intervention and actions” for responding to

dangerous animals: (1) public education and training of

employees; (2) warnings and advisories; (3) monitoring and

observation; (4) exclusion; (5) seasonal, non-emergency

closures; (6) emergency closures; (7) aversion training;

(8) capture and release; (9) capture and translocation; and

(10) animal destruction.

The Park implemented some of the Plan but not all of it.

Under step two, rangers verbally warned hikers and placed

signs at trail heads. They also monitored the goats under step

three. Next, they implemented aversive conditioning

techniques under step seven, such as yelling and throwing

rocks. They also used paintball and bean-bag guns for

aversion training. Nothing worked. All of these techniques

failed. The goat just got more aggressive. Yet the Park did

not move on to the next steps, relocating or shooting the goat.

Superintendent Gustin testified that “[i]f the problem isn’t

going away or doesn’t seem to be resolved, then we move to

CHADD V. U.S. NAT’L PARKS SERVICE 47

the next level or series of levels.” Deputy Superintendent

Todd Suess testified that when aversive conditioning is not

working, park employees are supposed to “ramp it up and go

on to the next viable action that can be taken.” Dr. Patti

Happe said that if aversion training is unsuccessful, her

professional opinion is that the animal should be shot or

removed. Finally, Richard Olson, a retired park ranger who

drafted the Nuisance and Hazardous Animal Management

Plan, stated that once aversive conditioning failed, the only

logical next step was to shoot or relocate the problem animal.

But what everyone agreed should have happened did not

happen.

After two years and most of a third tourist season of

unsuccessful aversive conditioning, there was nothing left to

do, according to park policy, other than shoot or relocate the

goat. Indeed, at the beginning of the fatal season after

Klahhane Billy butted (but fortunately did not gore) a hiker,

Dr. Patti Happe, the Park’s chief biologist, emailed park

employees that “it may be time to talk about taking the next

step before someone gets hurt.” She emailed the state’s

biologist that the goat “has become very habituated and not

responding to our efforts to have him keep at a greater

distance from people. Recently, he has been becoming

increasingly aggressive and park management would like to

explore other management options for him, including

relocation from the area.” Dr. Happe emailed Superintendent

Gustin that the state’s biologist “was very willing to help, is

thinking about alternatives ranging from relocation . . . or to

captivity, and will help with the capture.” Gustin replied,

“[t]his sounds like good news.” There was no policy to the

contrary, and no policy decision not to kill or relocate the

goat. Nothing was done, despite the expert advice by

Superintendent Gustin’s chief biologist that something

48 CHADD V. U.S. NAT’L PARKS SERVICE

needed to be done and the state’s offer to help, for the rest of

the season, until the goat killed Mr. Boardman.

The majority notes the broad purpose of the Organic Act

to “conserve the scenery and the natural and historic objects

and the wild life therein and to provide for the enjoyment of

the same in such manner and by such means as will leave

them unimpaired for the enjoyment of future generations.”84

We held in Young v. United States that this broad purpose

does not eliminate the need for the Park Service under the

more specific policy to give precedence to “saving of human

life” and provide for “injury-free visits.”85 Following

Terbush v. United States,86 we held in Young that “it is not

sufficient for the government merely to wave the flag of

policy as a cover for anything and everything it does that is

discretionary.”87 Though we noted that some failures to post

warning signs at possible hazards were immunized policy

decisions, we held in Young that the discretionary decision

not to post a warning of a dangerous condition known to park

officials but not to tourists who might encounter it was not

immunized by the discretionary function exception.88 Our

case is not a failure-to-warn case, and warning tourists

without weapons of the aggressive 370-pound goat would not

have done them any good anyway, unless they decided to

abandon their visit to the Park. What matters is that the

84

16 U.S.C. § 1.

85

769 F.3d 1047, 1056, 1057 (9th Cir. 2014).

86

516 F.3d 1125, 1130 (9th Cir. 2008).

87

769 F.3d at 1057 (internal quotation marks omitted).

88

Id. at 1057, 1058.

CHADD V. U.S. NAT’L PARKS SERVICE 49

Organic Act states a broad purpose not inconsistent with the

more specific park policy of prioritizing the safety of human

life.

As for goats such as Klahhane Billy, the Park Service had

already decided that the Organic Act’s goal of “preserving”

had no application. The reason was that these goats were not

indigenous to the Park. Mountain goats at Olympic National

Park were classified as “exotic” species not entitled to

protection. Under the National Park Service Management

Policies, “[a]ll exotic plant and animal species that are not

maintained to meet an identified park purpose will be

managed —up to and including eradication—if (1) control is

prudent and feasible, and (2) the exotic species . . . creates a

hazard to public safety.”89 This policy, and not the broad

purpose of conservation, spoke directly to the hazard posed

by Klahhane Billy, yet this goat was not “managed up to and

including eradication.”

Applicability of the removal or eradication policy was not

in doubt. Dr. Happe, the Park’s chief biologist, testified that

the Park has “taken a position that [goats] are exotic and they

don’t belong here.” In the 1980s, the Park used helicopters

to capture and remove over 400 goats, to protect native

vegetation and degraded soils. Superintendent Gustin

testified that the Park’s goal would have been to eradicate all

of the goats, but the capture program was terminated because

of a change in the Park’s rules for using helicopters. The

government’s catch-all argument about its discretion to

conserve government resources, by which it evidently means

money and personnel time, is a bit silly, since the failed

aversive conditioning took a lot more time and money than

89

Nat’l Park Serv., Management Policies 2006, § 4.4.4.2.

50 CHADD V. U.S. NAT’L PARKS SERVICE

the couple of hours and cost of a bullet that the government

expended to kill the goat after the goat killed Mr. Boardman.

It verges on dark humor to suggest that protecting soil and

vegetation from goats was worth using a fleet of helicopters,

but protecting humans from one particular identified goat

would have degraded the Park and cost too much money.

Though the government now argues, in litigation, that the

Park weighed the public’s desire to see goats against the

safety risk from Klahhane Billy, that has no support in the

record. The record is filled with reports from concerned

visitors who had life-threatening encounters with the goat.

They certainly did not want to see it again. In June of 2009,

a year before the goat killed Mr. Boardman, Dr. Happe

emailed Superintendent Gustin that the goat “is definitely

negatively impacting the Park visitors ability to experience

and enjoy the area trails.” Another park biologist wrote that

the goat “could be really scary to many people.”

CONCLUSION

There never was a discretionary decision, so far as the

record shows, to delay or decline to relocate or remove the

goat. All we have is a few after-the-fact declarations

submitted in litigation attempting to show why such a

decision, had it been made, would have been justified by

policy. The express, promulgated, applicable policies

directed removal or destruction of the goat. Glorifying this

run-of-the-mill negligence as a government policy decision

eviscerates the waiver of sovereign immunity that is the core

of the Federal Tort Claims Act. This was not a policy

decision like managing a failed bank, preparing fertilizer for

shipment to countries ravaged by war, or approving an

aircraft design. This was like not getting around to repairing

CHADD V. U.S. NAT’L PARKS SERVICE 51

the light in the lighthouse in Indian Towing Co. v. United

States.90 This case is analogous to the routine tort case, where

a homeowner has a fierce dog that has attacked people and

bitten one, but does not get rid of the dog until after it has

torn some child’s face off.91 This was “ordinary garden-

variety negligence” that the government must compensate,92

not “decisions of social, economic, or political policy” for

which the statute preserves its immunity.93

We should reverse.

90

See 350 U.S. 61, 69 (1955).

91

See, e.g., King v. Breen, 560 So. 2d 186 (Ala. 1990).

92

See ARA Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir.

1987) (internal quotation marks omitted).

93

See Whisnant v. United States, 400 F.3d 1177, 1183 (9th Cir. 2005).