January 2020 - Parks & Recreation - 24

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

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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

January 2020 - Parks & Recreation

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