Soldano v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN A. SOLDANO, an individual; 

DENISE SOLDANO, an individual,

Plaintiffs-Appellants,

v. No. 03-17391

UNITED STATES OF AMERICA; UNITED  D.C. No.

CV-01-05462-LJO

STATES DEPARTMENT OF THE

INTERIOR; NATIONAL PARK SERVICE; OPINION

SUPERINTENDANT YOSEMITE

NATIONAL PARK,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, Magistrate Judge, Presiding

Argued and Submitted

April 4, 2006—San Francisco, California

Filed July 12, 2006

Before: Alfred T. Goodwin, Betty Binns Fletcher and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

7601

SOLDANO v. UNITED STATES 7605

COUNSEL

Raymond E. Brown, Law Offices of Federico C. Sayre, Santa

Ana, California, for the plaintiffs-appellants.

Kristi C. Kepetan, Assistant United States Attorney, Fresno,

California, for the defendants-appellees.

OPINION

FISHER, Circuit Judge:

John Soldano and his wife, Denise, sued the United States

under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)

(“FTCA”), for damages arising out of a serious motorcycle

accident that occurred on a major road in Yosemite National

Park. The district court granted summary judgment against

the Soldanos, finding that their claims of governmental negli-

gence failed for lack of evidence or were barred by the discre-

tionary function exception to the FTCA, 28 U.S.C. § 2680(a).

We affirm in part, but reverse the district court’s application

of the discretionary function exception to the Soldanos’ claim

that the government failed to set a safe speed limit at the acci-

dent site.

FACTS1

A. The Accident

On June 23, 1998, John Soldano was driving his new

1

The facts are undisputed.

7606 SOLDANO v. UNITED STATES

Harley-Davidson motorcycle west on the two-lane Big Oak

Flat Road in Yosemite National Park, a road familiar to Sol-

dano, who had driven it many times. Sitting behind him as his

passenger was his wife, Denise. They were cruising between

30 and 35 m.p.h., consistent with the road’s 35 m.p.h. speed

limit.

As the Soldanos came around a bend in the road approach-

ing the Cascade Creek Bridge, they were startled to find a van

stopped in their lane. The van was waiting to turn left across

the road’s double, solid yellow lines to enter the Cascade

Creek Bridge vista point adjacent to the road. John Soldano

claims he attempted to brake, but had to veer into the east-

bound lane and oncoming traffic when he realized he had

insufficient room to stop before colliding with the van. As a

result, the Soldanos crashed head-on into another van, and

John Soldano suffered severe injuries rendering him a para-

plegic. Soldano was also cited for improper crossing of dou-

ble, solid yellow lines.

In a deposition, Soldano testified that the collision occurred

about one minute after he exited the Big Oak Flat Road’s sec-

ond tunnel. He described the road as curving around a large,

solid granite mountain on his right just before the location of

the collision, and said that it was the granite mountain that

obstructed his vision of the stopped van. He did not identify

any road or hillside maintenance issues that contributed to the

accident.

In April 2001, the Soldanos sued the United States under

the FTCA. Their complaint alleged that the government,

through the U.S. Department of the Interior, National Park

Service and Superintendent of Yosemite National Park,

caused or contributed to the collision by improper design of,

and failure to maintain, the road and adjacent area. The Sol-

danos specifically alleged that the location of the collision

“constituted a dangerous condition and concealed trap or hid-

den hazard causing [the Soldanos] to be surprised by stopped

SOLDANO v. UNITED STATES 7607

traffic.” They faulted the government for the negligent place-

ment of traffic signs, among other things, and alleged that the

dangerous condition of the roadway was the proximate cause

of their injuries. They sought damages for past and future

medical expenses, lost earnings and earning capacity, emo-

tional distress and loss of consortium. After a hearing, the dis-

trict court granted the government’s motion for summary

judgment, finding that a lack of evidence or the discretionary

function exception to the FTCA barred all of the Soldanos’

claims.

B. The Road and Park Policies

The Big Oak Flat Road (“Road”) is a two-lane road with

11-foot wide lanes and a northwest to southeast orientation.

It is one of the principal routes for traffic in and out of the

park and is heavily traveled during the summer tourist season.

The segment of the Road where the accident occurred

includes three tunnels, three bridges and the Cascade Creek

Bridge vista point. Eight other pullouts punctuate the Road,

which was constructed between 1937 and 1940 and has been

neither redesigned nor reconstructed since its creation.

The Road is a part of the national park system of roads. In

1968, the National Park Service created the Park Road Stan-

dards (“Standards”) to establish policies for the design and

construction of the nation’s park roads. In 1984, it prepared

new standards to be applied “as existing roads are recon-

structed or when new roads are constructed.” The 1984 Stan-

dards state that “[i]n most parks, a road system is already in

place, having been constructed in accordance with the

National Park Service Policies.” The Standards “are intended

to be applied uniformly to both new construction and recon-

struction of park roads on a Servicewide basis to the extent

practicable, based on projections of actual, or planned and

controlled use,” and they acknowledge that “[o]n rehabilita-

tion, restoration and resurfacing (3-R) projects, the standards

applicable to new construction and reconstruction will in

7608 SOLDANO v. UNITED STATES

some instances not be attainable.” Finally, the 1984 Standards

set forth the purpose of national park roads:

[P]ark roads are designed with extreme care and sen-

sitivity with respect to the terrain and environment

through which they pass — they are laid lightly onto

the land.

Each segment of every park road should relate to the

resource it traverses in a meaningful way and should

constitute an enjoyable and informative experience

in itself while providing the visitor the utmost in

visual experience. . . . A park road should be funda-

mentally designed to maintain an overall continuing

sense of intimacy with the countryside or area

through which it passes.

The purpose of park roads remains in sharp contrast

to that of the Federal and State highway systems.

Park roads are not intended to provide fast and con-

venient transportation; they are intended to enhance

visitor experience while providing safe and efficient

accommodation of park visitors and to serve essen-

tial management access needs.

The placement and use of signs in Yosemite is similarly

governed by Park Service policies, in particular those set forth

in the National Park Service Sign Manual (“Sign Manual”).

The Sign Manual delineates a number of factors that park

managers are to consider in determining where to place signs.

Managers should weigh such potentially competing ends as

minimal intrusion, avoidance of unnecessary proliferation of

signs and the safety of visitors in deciding whether to use a

particular sign at a particular location.

The Yosemite National Park Superintendent, Michael J.

Tollefson, has averred that the Park Service’s overall road

policy decisions made pursuant to the Standards involve bal-

SOLDANO v. UNITED STATES 7609

ancing preservation of natural resources, visitor enjoyment

and safety and the Park Service’s limited financial and human

resources. The Superintendent has further stated that balanc-

ing such considerations requires the exercise of discretion,

and that decisions on the Road’s design and construction,

including the placement of scenic vistas and signs on it, are

not governed by mandatory statutes, regulations or policies,

but rather by noncompulsory policies as set forth in the 1984

Standards and the Sign Manual.

STANDARD OF REVIEW

We review the district court’s summary judgment de novo.

See Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). “We

must determine, viewing the evidence in the light most favor-

able to . . . the nonmoving party, whether there are any genu-

ine issues of material fact and whether the district court

correctly applied the substantive law.” Olson v. Idaho State

Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

DISCUSSION

This appeal turns on the resolution of two questions: (1)

whether the district court properly rejected the Soldanos’

claim that the Road was negligently maintained, as not sup-

ported by admissible evidence; and (2) whether the court

erred in determining that the discretionary function exception

shields the government from liability for the rest of the Sol-

danos’ claims.

A. Negligent Maintenance

The Soldanos claim that the government’s failure properly

to maintain the site of the accident was a proximate cause of

their injuries. More specifically, they contend that overgrowth

along the road at the site of the accident made the Road’s 35

m.p.h. speed limit too high, in violation of minimum specifi-

cations set forth in the Standards. In support of their claim,

7610 SOLDANO v. UNITED STATES

the Soldanos’ expert witness, Ronald M. Shields, a traffic

engineer, stated:

The nearly vertical upward sideslope for the westerly

road direction significantly reduces the available

sight distance . . . to 180 feet based on the CalTrans

highway design charts. Actual sight distance

observed [in 2002] at the westbound curve approach-

ing the Cascade Creek Bridge was 135 feet as a

result of vegetation blocking the line of sight. Pursu-

ant to the 1984 edition of Park Road Standards, the

reduction of sight distance caused by the vegetation

would place the maximum allowable design speed

below 25 miles per hour. . . .

If the design speed (and corresponding speed limit)

had been reduced and the vegetation had been main-

tained to increase the stopping sight distance, John

Soldano would have had sufficient time to stop

before reaching the rear of the stopped van and

would not have been required to swerve into the

oncoming lane of traffic.

[1] Shields’ report is the only evidence the Soldanos pre-

sented concerning the state of vegetation and its effect on the

Road’s safety. The report, however, does not establish that

vegetation was overgrown or even existed in 1998, because

Shields’ conclusions were based on his observations in 2002.

The district court correctly recognized, therefore, that “[t]he

Soldanos provide no evidence to describe or depict the vege-

tation at issue and how it obscured vision at the time of the

collision” and instead “merely rely on [their expert’s] general

statements of vegetation overgrowth without supporting

underlying facts.” The same deficiencies prevent Shields’

declaration from calling into question John Soldano’s own

statement that it was the “rock wall” that blocked his view.

[2] Accordingly, the district court did not err in granting

summary judgment to the government on the Soldanos’ negli-

SOLDANO v. UNITED STATES 7611

gent maintenance claim. See Fed. R. Civ. P. 56(c); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986).

B. Negligent Design, Placement of Signs and Speed Limit

The Soldanos also allege that the Road was negligently

designed at the site of the accident. First, they claim that the

Park Service negligently designed the Road by omitting signs

warning of the danger of vehicles stopped on a blind curve.

Second, they contend that the Road’s speed limit was negli-

gently set too high relative to its design, because the Stan-

dards permit a 35 m.p.h. speed limit only where a sight

distance meets or exceeds 225 feet. Here, the nearly vertical

“sideslope” of the Road reduces the sight distance of a vehicle

in the position of the Soldanos’ to 180 feet (according to the

Soldanos’ expert’s interpretation of California Department of

Transportation highway design charts).2

[3] Given the circumstances of the accident and their

expert’s analysis, the Soldanos have presented evidence suffi-

cient to create triable issues with respect to their claims that

the Park Service’s design of the Road required warning signs

and a lower speed limit at the accident site. We therefore turn

to consider whether the district court erred in finding that the

discretionary function exception to the FTCA bars these

claims.

1. Discretionary function exception

[4] “A party may bring an action against the United States

only to the extent that the government waives its sovereign

immunity.” Valdez v. United States, 56 F.3d 1177, 1179 (9th

Cir. 1995). The FTCA waives the government’s sovereign

2

As discussed previously, although the expert Shields opined that the

sight distance was further reduced to 135 feet due to overgrown vegeta-

tion, there was no evidence of the existence or state of vegetation as of

1998.

7612 SOLDANO v. UNITED STATES

immunity for tort claims arising out of the negligent conduct

of government employees acting within the scope of their

employment. Id. Thus, the government can be sued “under

circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law of

the place where the act or omission occurred.” 28 U.S.C.

§ 1346(b).

[5] The FTCA’s waiver of immunity is limited, however,

by the discretionary function exception, which bars claims

“based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Government,

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

§ 2680(a). This exception “restores the government’s immu-

nity in situations where its employees are carrying out gov-

ernmental or ‘regulatory’ duties,” Faber v. United States, 56

F.3d 1122, 1124 (9th Cir. 1995), and it “marks the boundary

between Congress’ willingness to impose tort liability on the

United States and the desire to protect certain decision-

making from judicial second-guessing.” Conrad v. United

States, 447 F.3d 760, 764 (9th Cir. 2006) (citing Berkovitz v.

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

To determine whether the challenged conduct falls within

the discretionary function exception, we employ a two-step

analysis. First, we determine “whether the challenged actions

involve ‘an element of judgment or choice.’ ” Valdez, 56 F.3d

at 1179 (quoting United States v. Gaubert, 499 U.S. 315, 322

(1991)). Our inquiry looks to “the nature of the conduct,

rather than the status of the actor,” and the discretionary ele-

ment is not met where “a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow.” Berkovitz, 486 U.S. at 536 (internal quotation marks

and citation omitted). In such event, our inquiry is at an end,

and the discretionary function exception does not apply

because “the employee has no rightful option but to adhere to

the directive.” Id.

SOLDANO v. UNITED STATES 7613

[6] However, if an element of choice or judgment is

involved, we move to the second step of the analysis and

determine “ ‘whether that judgment is of the kind that the dis-

cretionary function exception was designed to shield.’ ” Gau-

bert, 499 U.S. at 322-23 (quoting Berkovitz, 486 U.S. at 536).

The exception “ ‘protects only governmental actions and deci-

sions based on considerations of public policy.’ ” Id. at 323

(quoting Berkovitz, 486 U.S. at 537). In other words, only

those decisions “grounded in social, economic, and political

policy” will be protected by the discretionary function excep-

tion. Childers v. United States, 40 F.3d 973, 974 (9th Cir.

1994). The exception “will apply if the discretionary decision

made is a permissible exercise of policy judgment,” Conrad,

447 F.3d at 765, even if the decision is an abuse of the discre-

tion granted. See 28 U.S.C. § 2680(a).

We acknowledge that the distinction between protected and

unprotected decisions can be difficult to apprehend, but this

is the result of the nature of governmental actions — they fall

“along a spectrum, ranging from those ‘totally divorced from

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

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

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

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

295 F.3d 1029, 1035 (9th Cir. 2002) (additional citation omit-

ted)).

[7] Notwithstanding the occasionally fine line between pro-

tected and unprotected activities, general principles exist. In

particular, we have declined to find the discretionary function

exception applicable “where the challenged governmental

activity involves safety considerations under an established

policy rather than the balancing of competing public policy

considerations.” ARA Leisure Servs. v. United States, 831

F.2d 193, 195 (9th Cir. 1987) (internal alteration omitted). In

ARA Leisure Services, the Park Service’s decision to design

the Denali Park Road in Alaska without guardrails was

grounded in social, economic and political policy, but the

7614 SOLDANO v. UNITED STATES

Park Service’s failure to maintain a pass on that road in safe

condition was not. There was “no clear link between Park

Service road policies and the condition” of the pass, so the

government’s failure to maintain the road fell “in the category

of ‘ordinary “garden-variety” negligence’ ” that the FTCA did

not immunize from suit. Id. at 195-96 (quoting Aslakson v.

United States, 790 F.2d 688, 693-94 (8th Cir. 1986)).

In Summers v. United States, 905 F.2d 1212 (9th Cir.

1990), we similarly held that the Park Service’s failure to

identify and warn of the danger of hot coals to barefoot visi-

tors to a park beach “resemble[d] more a departure from the

safety considerations established in Service policies, akin to

the situation[ in] . . . ARA, . . . than a mistaken judgment in

a matter clearly involving choices among political, economic,

and social factors.” Id. at 1216. And in Seyler v. United

States, 832 F.2d 120 (9th Cir. 1987), the discretionary func-

tion exception did not preclude a claim against the Bureau of

Indian Affairs by a motorcyclist injured on an Indian reserva-

tion road that had no posted speed limit signs. The decision

not to provide such signs was not “of the nature and quality

that Congress intended to shield from tort liability,” and noth-

ing in the record demonstrated that the failure to post any

speed limits actually resulted from a protected policy deci-

sion. Id. at 123.

Most recently, in Oberson v. U.S. Dep’t of Agriculture, 441

F.3d 703 (9th Cir. 2006), we held that the Forest Service, in

raising the speed limit on a snowmobile trail to 45 m.p.h.

without first assuring the safety of travel up to that speed, did

not make a “decision grounded in public policy or . . . com-

peting policy considerations.” Id. at 709. Although the deci-

sion to open a particular trail or to adopt a 45 m.p.h. speed

limit after warranting the safety of that speed was protected,

“the Service c[ould] not claim that its failure to warn of haz-

ardous conditions at that speed [wa]s protected by the discre-

tionary function exception.” Id. at 711 (emphasis added). This

was especially true given the absence of evidence that the

SOLDANO v. UNITED STATES 7615

agency’s failure to post a warning or to remedy a known haz-

ard was the product of a policy choice. Id. at 712.

[8] On the other hand, we have held decisions about the

implementation of safety considerations on park roads and

trails to be protected, where circumstances clearly showed

they were the result of a judgment grounded in social, eco-

nomic and political policy. In Valdez v. United States, Valdez

was rendered quadriplegic when he fell down a waterfall in

Kings Canyon National Park. Valdez argued that the regula-

tions in Park Service policy manuals were mandatory, such

that the Park Service lacked any choice over the challenged

conduct. 56 F.3d at 1179-80. We rejected his argument:

While the said policy guidelines certainly outline

general policy goals regarding visitor safety, the

means by which NPS employees meet these goals

necessarily involves an exercise of discretion. These

guidelines can be considered mandatory only in the

larger sense that they set forth broad policy goals

attainable only by the exercise of discretionary deci-

sions.

Id. at 1180. Because the challenged conduct “clearly impli-

cate[d] a choice between the competing policy considerations

of maximizing access to and preservation of natural resources

versus the need to minimize potential safety hazards,” it fell

within the discretionary function exception. Id.

Likewise, Childers v. United States involved a FTCA suit

brought by the parents of David Childers, who died in a win-

ter hiking accident in Yellowstone National Park. To deter-

mine whether the Park Service’s failure to post warning signs

on the fatal trail was protected, we considered the statutes and

regulations under which the Park Service operated and held

that the decision as to the posting of warning signs was left

in the hands of Park Service rangers. 40 F.3d at 974-76.

“Their decisions [we]re policy-based, requiring them to bal-

7616 SOLDANO v. UNITED STATES

ance access with safety, and take into account conservation

and resources in designing area plans and making individual

trail determinations.” Id. at 976.

Finally, in Blackburn v. United States, 100 F.3d 1426 (9th

Cir. 1996), we held that the discretionary function exception

barred a plaintiff’s claim that the Park Service negligently

failed to warn of the danger of diving off a bridge in Yosemite

National Park. As in Valdez and Childers, the statutes and

regulations under which the Park Service operated encom-

passed an element of discretion in deciding how and when to

warn the public of known dangers:

Although the policy manuals outline general policy

goals regarding visitor safety, they do not set out the

specific means by which the NPS employees are to

meet these general goals. Furthermore, the policy

manuals’ broad mandate to warn the public of and

protect it from special hazards involves the exercise

of discretion in identifying such hazards, in deter-

mining which hazards require an explicit warning

and in determining the precise manner in which to

warn it of those hazards. See Valdez, 56 F.3d at

1180; Childers, 40 F.3d at 976.

Id. at 1431.

[9] Here, we conclude that the discretionary function

exception bars the Soldanos’ claim that the Park Service neg-

ligently designed the Road without warning signs at the site

of the accident. The exception does not, however, bar their

claim that the Park Service negligently set the speed limit for

the Road, relative to the Road’s design. Rather, that decision

was circumscribed by objective safety criteria and was not the

result of a policy decision of the kind protected by the discre-

tionary function exception.3 We address these claims in turn.

3

To the extent this court has suggested otherwise, it has done so only

in dictum. In Oberson, 441 F.3d at 711, we suggested that the decision to

SOLDANO v. UNITED STATES 7617

a. Design and sign placement

The Sign Manual sets forth guidelines on the use of signs

along park roads:

The decision to utilize a particular sign at a particu-

lar location requires the professional judgment of the

park manager — drawing upon available guides,

resources, and traffic safety engineering expertise —

and considering a variety of other factors, such as the

appearance of the road as a whole and its relation-

ship to the natural and/or historical environment

through which it passes.

It is important in this regard, too, that such decisions

bear in mind long standing [National Park Service]

policy to minimally intrude upon the natural or his-

toric setting in National Park System areas, and to

avoid an unnecessary proliferation of signs, while

striving to ensure for the safety of park visitors.

Far from imposing mandatory requirements, the Sign Manual

states that decisions about the use and placement of signs are

made at the discretion of the park manager, who must weigh

competing ends — minimal intrusion, avoidance of unneces-

sary proliferation of signs and the safety of visitors.

[10] The Park Service’s decisions about designing the Road

with warning signs placed at particular points are not man-

dated one way or another by the Sign Manual. The Service

must balance a panoply of social, economic and political con-

siderations applicable to the distinctive nature of park roads

adopt a 45 m.p.h. speed limit on a snowmobile trail would be protected

under the discretionary function exception. This statement was not essen-

tial to the holding in Oberson, as the government itself noted during oral

argument before us, and it was not developed or otherwise explained.

7618 SOLDANO v. UNITED STATES

when determining whether to design a road with a given sign

at a particular location. Deciding whether to warn of the

potential danger of stopped traffic at the site of the accident

is therefore a judgment “of the kind that the discretionary

function exception was designed to shield.” Gaubert, 499

U.S. at 322-23 (quoting Berkovitz, 486 U.S. at 536). The dis-

trict court did not err in granting summary judgment to the

government on the Soldanos’ claim that the government neg-

ligently designed the Road with insufficient warning signs.

See Blackburn, 100 F.3d at 1431; Childers, 40 F.3d at 976.

b. Design and speed limit

[11] Setting a safe speed limit for the Road as designed,

however, is different, because doing so is essentially a matter

of scientific and professional judgment, and “matters of scien-

tific and professional judgment — particularly judgments

concerning safety — are rarely considered to be susceptible

to social, economic, or political policy.” Whisnant, 400 F.3d

at 1183.

[12] The 1984 Standards specify appropriate speed limits in

light of such empirical factors as the elevation and stopping-

sight distance of a road. Significantly, they allow a speed limit

of 35 m.p.h. only where the minimum, actual stopping-sight

distance meets or exceeds 225 feet.4 Here, the Soldanos’

expert opined, without contradiction, that the actual stopping-

4

In the Standards’ words:

Minimum stopping sight distance . . . [is] directly related to the

design speed of the road. . . . The minimum and desirable stop-

ping sight distances for roads at various design speeds are shown

in Table 6. Minimum distances assume that the vehicle is travel-

ing at less than the design speed, while the desirable distances

assume that the vehicle is traveling at the design speed.

Table 6 specifies the minimum stopping-sight distance of a road with a 35

m.p.h. speed limit as 225 feet. It further states that the desirable stopping-

sight distance for such a road is 250 feet.

SOLDANO v. UNITED STATES 7619

sight distance of the Road is no greater than 180 feet at the

location of the accident due to the upward “sideslope” of the

Road as it curves around the granite mountain. Plainly, the

Road’s 35 m.p.h. speed limit at the accident location is at

odds with the specifications in Table 6 of the Standards,

which require a speed limit of no more than 25 m.p.h. for

roads with the characteristics of the accident site.

[13] “[W]e have generally held that the design of a course

of governmental action is shielded by the discretionary func-

tion exception, whereas the implementation of that course of

action is not.” Whisnant, 400 F.3d at 1181 (original empha-

sis). The element of choice involved in the Park Service’s

decision not to implement a speed limit on the Road consis-

tent with the Standards’ safety guidelines “resembles more a

departure from the safety considerations established in Ser-

vice policies, akin to the situations we confronted in Seyler,

ARA, and with regard to the construction of the canal in

Kennewick,5 than a mistaken judgment in a matter clearly

involving choices among political, economic, and social fac-

tors . . . .” Summers, 905 F.2d at 1216. Nor does the element

of choice entail a protected, discretionary selection of the

means used to meet a general policy goal, such as was the

case in Blackburn, 100 F.3d at 1431, and Valdez, 56 F.3d at

1180.

The government acknowledges that the Road’s speed limit

is not consistent with the Standards, but contends that the

Standards are not applicable to the Road and thus that the

Road’s speed limit is not a departure from the Standards’

safety specifications. In particular, the government relies on

the Standards’ purported limitation to the “new construction

5

In Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1031-32

(9th Cir. 1989), we held that the discretionary function exception shielded

the government from liability arising from the consequences of its design

of a canal, but did not protect the government from its negligent construc-

tion of the canal.

7620 SOLDANO v. UNITED STATES

and reconstruction of park roads” and, in the context of recon-

struction, the qualification that they apply only “to the extent

practicable and feasible.” The government also draws our

attention to the Standards’ acknowledgment that they “will in

some instances not be attainable” on rehabilitation, restoration

and resurfacing projects. Because the Road predates the Stan-

dards’ inception, is not a new construction and has not been

reconstructed, the government says the Standards do not

apply. We find this argument unconvincing, both because it

seems to suggest that the Standards are entirely irrelevant to

a major access road in a major national park and because it

implies that the Standards’ objective safety specifications

have no bearing on the safe maintenance of pre-existing

roads. Moreover, this argument is inconsistent with Superin-

tendent Tollefson’s own declaration that the Standards

embody the Park Service’s “long standing policies . . . with

respect to the design and construction of roads in national

parks.”

As a fallback, the government urges that even if the Stan-

dards are applicable, they endow the Park Service with a

degree of design flexibility that militates against finding any

of the Standards’ safety specifications to be mandatory.

According to the Standards’ preface:

The standards contained herein provide flexibility in

the planning and design processes to allow for con-

sideration of variations in types and intensities of

park use, for wide differences in terrain and climatic

conditions, and for protection of natural and cultural

resources in National Park System areas.

It is important to note that the standards vary consid-

erably with the type of use to be accommodated.

Basic decisions will have to be made by park man-

agement in the application of these standards based

on careful examinations of the desired use levels to

be allowed considering impacts on visitor use and

SOLDANO v. UNITED STATES 7621

resource protection in conformance with legislative

mandates.

The criteria presented have been adapted from avail-

able design standards to meet the unique require-

ments of park roads. This will provide a framework

within which design and construction of park roads

should be conducted; however, this document is not

intended to encompass a level of detail comparable

to that normally found in design manuals.

We recognize that the Standards also vest park managers with

some discretion in designing park roads to conform with the

special purpose of such roads, which “are not intended to pro-

vide fast and convenient transportation,” but instead “to

enhance visitor experience while providing safe and efficient

accommodation of park visitors and to serve essential man-

agement access needs.”6

[14] Even granting that the government is correct that the

Standards are inapplicable to the Road’s design, it does not

follow that the Standards’ basic, scientific safety specifica-

tions may be disregarded, particularly those that do not

require redesigning or reconstructing the Road. As the Stan-

dards state, “[w]hile park roads are designed differently from

other roads, they are designed, constructed, and maintained

6

The Soldanos argue that all this is immaterial because, according to

their expert, the Park Service’s Standards adopted the specifications that

had been developed in the 1930s by the American Association of State

Highway and Transportation Officials (“AASHTO”) for stopping-sight

distance, radius and degree of curves and design speed. The Soldanos thus

urge that the Standards’ latter-day requirements were already in existence

and applicable to the Road when it was originally designed and made. The

Soldanos, however, have introduced no admissible evidence that the Park

Service adopted and made the AASHTO standards mandatory, and the

Standards themselves state that criteria drawn from “available design stan-

dards” such as AASHTO have been “adapted . . . to meet the unique

requirements of park roads.” (Emphasis added.)

7622 SOLDANO v. UNITED STATES

within the norms of sound geometric standards for safety and

structural sufficiency.” (Emphasis added.) Cf. ARA Leisure

Servs., 831 F.2d at 195 (“Park Service standards explicitly

required that park roads ‘conform to the original grades and

alignments’ and that graded roads be ‘firm, [and] of uniform

cross section.’ ”). And whatever flexibility the Standards

grant the Park Service in designing a road, they do specify

that park roads “provid[e] safe and efficient accommodation

of park visitors.” (Emphasis added.) There is no reason to

suppose that this safety requirement and the Standards’ safety

specifications do not apply to the current operation of park

roads that the Park Service itself acknowledges receive heavy

use during tourist seasons, simply because they are old.

[15] Thus, although we agree with the district court that the

discretionary function exception shields the government from

liability arising from challenges to its overall design of the

Road and the means by which the Service effected that design

— including such placement and configuration choices as the

creation of the Cascade Creek Bridge vista point at the site of

the accident — we hold that the government is not insulated

from the claim that it negligently set an unsafe speed limit for

this part of the Road, relative to its design. As in ARA Leisure,

where the Park Service’s decision to design the Denali Park

Road without guard rails was protected, but its failure to

maintain the road in a state of safe repair was not, so here the

Park Service’s decision to design the Road “to closely fol-

low[ ] . . . granite mountains” and to have a vista point in a

given location is protected, but its failure to set a speed limit

consistent with those design choices is not.7 See ARA Leisure

Servs., 831 F.2d at 195; see also Oberson, 441 F.3d at 710-11;

7

With the exception of Superintendent Tollefson’s conclusory assertion

that the “establishment of speed limits” is not governed by “mandatory

statutes, regulations or policies” but by noncompulsory policies, the gov-

ernment has introduced no evidence demonstrating that the Park Service’s

decision to set a 35 m.p.h. speed limit was the result of a decision

grounded in social, economic and political policy as opposed to profes-

sional and scientific judgment. During oral argument, the government con-

SOLDANO v. UNITED STATES 7623

Summers, 905 F.2d at 1216; Seyler, 832 F.2d at 123. Accord-

ingly, the government’s purported failure to set a safe speed

limit on the Road remains a triable issue that is not precluded

by the discretionary function exception.

[16] Because the district court erred in finding that the dis-

cretionary function exception bars the Soldanos’ claim that

the government negligently set the speed limit for the Road,

we reverse the court’s summary judgment to that extent and

remand for further proceedings. In all other respects, we

affirm the district court’s judgment.

AFFIRMED in part, REVERSED in part. The parties

shall bear their own costs on appeal.

tended that it had no obligation to adduce such evidence, but could instead

rely on hypothetical justifications indicative of a social, economic and

political judgment. The law is to the contrary. See, e.g., Oberson, 441 F.3d

at 712 (failure to warn of hazardous conditions on a snowmobile trail at

a particular speed is not protected where there is an absence of evidence

that the failure to post a warning was actually the product of a policy

choice); Seyler, 832 F.2d at 123 (noting that nothing in the record demon-

strated that the failure to post speed limits on an Indian reservation road

actually resulted from a policy decision).