LAW REVIEW
In the opinion of the federal appeals court, the directive did require “some type of mitigation,” listing “a wide range of specific mitigation efforts that NPS officials may undertake.” that the families’ complaint adequately had alleged the government’s negligent “failure to discover the danger presented by the tree.” This was evident in the fact that the park officials allegedly “knew of such danger, because the tree had similarly broken in the past and had begun to bow noticeably above the campsite in question.” In response, the government
22 Parks & Recreation
argued the park officials lacked actual knowledge that the tree presented a hazard because records indicated “the tree in question was not selected for abatement during 2014 and 2015 surveys of the campground.” In dismissing the complaint, the appeals court noted that the district court had not provided the families with an opportunity to conduct pretrial discovery to determine what the park officials actually knew and whether they had “rated the subject tree as a high or very high hazard.”
No Discretion to Do Nothing Assuming park officials “knew or should have known about the danger posed by the tree,” the government argued “the families’ negligence-based claims are still barred
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because park officials had significant discretion regarding what to do in response to that danger.” “[While] park officials had discretion regarding what to do in response to the danger,” the families claimed that “applicable policies required officials to do something, including at least to warn campers.” In so doing, the families contended “the government’s failure to do anything at all to mitigate the risk was not subject to the sort of policy choices protected by the discretionary function exception.” The federal appeals court agreed that “the extent and nature of park officials’ discretion over how to address hazardous trees is defined by Yosemite Directive No. 25.” Under the park’s Seven-Point system, the families had argued “the tree should have been rated a five or a six...a ‘high’ risk, according to Directive No. 25.” Moreover, pursuant to the directive, trees rated “high risk or above require a management action,” and “will require some type of abatement/mitigation.” In the opinion of the federal appeals court, the directive did require “some type of mitigation,” listing “a wide range of specific mitigation efforts that NPS officials may undertake — from pruning or repairing the tree to removing it or closing the surrounding area.” Given the wide range of specific mitigation measures available to park officials under the required directive, the government argued that the park officials maintained significant policy-based discretion in deciding how best to handle the hazard posed by the tree. The federal appeals court agreed that the discretionary function exception might indeed bar “a claim