MEMORANDUM AND ORDER
The plaintiff, Raphael Demery, brought this action against the United States Department ofthe Interior [hereinafter referred to as DOI] pursuant to the Federal Tort Claims Act, 28 U.S.C. §1346(b) for the wrongful death of his wife, Linda Demery. He seeks to recover damages from theDOI, attributing his wife’s death to the negligence of Bureau of Indian Affairs [hereinafter referredto as BIA]. For the purposes of this action, the Department of the Interior and the Bureau of IndianAffairs are one-in-the-same. The DOI filed a motion for dismissal pursuant to Rule 56 of theFederal Rules of Civil Procedure, asserting that it is immune from suit under the discretionaryfunction exception to the Federal Tort Claims Act. For reasons outlined below, the Court grants themotion.
I. BACKGROUND OF THE CASE
The BIA operated an aeration system on Belcourt Lake during the winter months of 1998and 1999 that kept a portion of the lake from freezing over. It erected signs at two entrances to thelake that warned “Danger, open water.” It built a berm of snow around the open water. It alsomarked the open water with lath, red flags, and reflector tape. The flags, which were approximately10 inches square and stapled to lath approximately 3 ½ to 4 feet in length, were placed between 30and 50 feet apart. The actual number of flags that were placed on the lake is unclear.
A snowmobile trail was constructed in 1999 that crossed a portion of Belcourt Lake. Estimates placed the trail approximately 100 feet west of the lake’s open water. BIA personnel wereaware of the trail’s existence but were not responsible for its maintenance.
On March 7, 1999, Linda Demery drowned after a snowmobile on which she was a passengerdrove into the open water on Belcourt Lake. Linda’s husband, Raphael Demery [hereinafter referredto as Demery], filed a wrongful death claim pursuant to the Federal Tort Claims Act [hereinafterreferred to as FTCA] with the BIA on March 5, 2001. His claim was subsequently referred to theDOI, which, in a letter-opinion dated October 17, 2001, denied the claim on the grounds that Demeryhad failed to establish a cognizable claim under the FTCA.
On November 21, 2001, Demery filed an FTCA claim with this Court, alleging Linda’saccident was caused by the BIA’s failure to properly mark and warn the public of the dangers posedby open water on Belcourt Lake. The DOI filed a motion for dismissal on November 8, 2002,asserting that it is immune from suit under the discretionary function exception to the FTCA. In hisresponse dated December 23, 2002, Demery claims that the DOI’s motion is untimely under theCourt’s Scheduling Order of March 22, 2002, and that the discretionary function exception isinapplicable to the facts of this case. The DOI filed a reply in support of its motion on January 9,2003.
II. STANDARD OF REVIEW
The Court will grant a motion for summary judgment if there is no genuine issue as to anymaterial fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986) (explaining that the Court mustresolve all ambiguities and draw all reasonable inferences in the non-movant’s favor). If thedefendant can show that there is no issue as to any material fact, then the plaintiff must “set forthspecific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see also CelotexCorp., 477 U.S. at 324. A mere trace of evidence supporting the plaintiff’s position isinsufficient—the facts must generate evidence from which a jury could reasonably find for theplaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III. LEGAL DISCUSSION
It is apparent from the record that Demery has exhausted his administrative remedies, aprerequisite to filing an FTCA claim in federal court. See 28 U.S.C. §2825(a). Before determiningwhether the discretionary function exception is applicable, the Court must first address Demery’scontention that the DOI’s motion is untimely.
A) TIMELINESS OF THE DOI’S MOTION
The Court’s Scheduling Order instructed the parties to file threshold motions by October 1,2002. Demery asserts that the DOI’s motion should be denied because it raises a threshold issue andwas filed after October 1. The DOI acknowledges that its motion challenges jurisdiction, a thresholdissue, but maintains that it should not be precluded from making such a challenge. The Court agrees.
It is axiomatic that the parties cannot confer jurisdiction on a federal court that has not beenvested in that court by the Constitution and Congress.1
“This means that the parties cannot waivelack of jurisdiction by express consent, or by conduct, or even by estoppel; the subject matterjurisdiction of the federal courts is too basic a concern to the judicial system to be left to the whimsand tactical concerns of the litigants.” 13 Wright, Miller & Cooper, Federal Practice and Procedure:Jurisdiction 2d § 3522, at 68-69 (1984); see e.g., Sosna v. Iowa, 419 U.S. 393, 398 (1975) (may notby stipulation invoke the judicial power of the United States in litigation which does not present anactual case or controversy); Williams v. Rogers, 449 F.2d 513, 518 (8th Cir. 1971) (parties cannotwaive lack of subject matter jurisdiction whether by express consent or by conduct); Macdiarmid v.Lawbar Petroleum, 456 F.Supp. 503, 504 (W.D. Tex. 1978) (a party will not be estopped fromchallenging the existence of federal jurisdiction).
The DOI’s compliance with the Scheduling Order or lack thereof is not dispositive in thisinstance. Although it is preferred that the parties, in the interests of judicial economy, addressjurisdictional issues early in the proceedings, they are not necessarily precluded from challengingthe existence of federal jurisdiction later in the proceedings by virtue of the Scheduling Order. Thediscretionary function exception raised by the DOI in its summary judgment motion is ajurisdictional defense. See Johnson v. U.S., Dept. of Interior, 949 F.2d 332, 335 (10th Cir. 1991). As the Court cannot proceed unless it has jurisdiction, it must review the DOI’s motion on its merits.
B) DISCRETIONARY FUNCTION EXCEPTION
It is well-established that Congress has waived the sovereign immunity of the United Statesby giving district courts jurisdiction over certain tort actions. 28 U.S.C. § 1346(b). However,Congress has excepted from this limited waiver “[a]ny claim... based upon the exercise orperformance or the failure to exercise or perform a discretionary function or duty on the part of afederal agency or an employee of the Government, whether or not the discretion involved beabused.” 28 U.S.C. § 2680(a). If a case falls within this statutory exception to the Federal TortClaims Act, the Court lacks subject matter jurisdiction. See Feyers v. United States, 749 F.2d 1222,1225 (6th Cir. 1984) cert denied, 471 U.S. 1121, 1125 (1985).
“Though discretionary function is a difficult concept to specifically define, the SupremeCourt has stated that it includes initiation of programs and activities as well as determinations madeby executives or administrators in establishing plans, specifications or schedules of operations.” E.Ritter & Co. v. Department of Army, Corps of Engineers, 874 F.2d 1236, 1240 (8th Cir. 1989). Thediscretionary function exception prohibits any claim against the United States that is based upon theexercise or performance or the failure to exercise or perform a discretionary function or duty on thepart of a federal agency or an employee of the Government, whether or not the discretion involvedbe abused. 28 U.S.C. § 2680(a)). It “marks the boundary between Congress’ willingness to imposetort liability upon the United States and its desire to protect certain governmental activities fromexposure to suit by private individuals.” Dykstra v. U.S Bureau of Prisons, 140 F.3d 791, 795 (8thCir. 1998). Its purpose is to prevent “judicial second-guessing of legislative and administrativedecisions grounded in social, economic, and policy through the medium of an action in tort.” UnitedStates v. Gaubert, 499 U.S. 315, 323 (1991). When properly construed, it “protects onlygovernmental actions and decisions based on considerations of public policy.” Id. See Kane v.U.S.,15 F.3d 87, 89 (8th Cir. 1994) (day- to-day decisions, made in furtherance of the policy, may beprotected under the exception). Its application is, therefore, a jurisdictional issue which precedes anynegligence analysis. Johnson v. U.S., Dept. of Interior, 949 F.2d 332, 335
The applicability of the discretionary function exception is governed by the nature of theconduct at issue, rather than the status of the actor. Berkovitz v. U.S., 486 U.S. 531, 536 (1988). When examining the nature of the challenged conduct, the Court must first inquire as to whether theaction is a matter of choice for the acting Government employee. Assuming that the challengedconduct does involve an element of judgment or choice, the Court must then determine whether thatjudgment “is of the kind that the discretionary function exception was designed to shield.” Id.
1) WHETHER THE ACTION IS A MATTER OF JUDGMENT ORCHOICE FOR THE ACTING EMPLOYEE.
The United States Supreme Court has articulated a two-part test to be applied in determiningwhether a particular claim falls under the discretionary function exception to the waiver of sovereignimmunity. See United States v. Gaubert, 499 U.S. 315 (1991); Berkovitz by Berkovitz v. UnitedStates, 486 U.S. 531 (1988). The first part of the test requires a determination of whether thechallenged act or omission violated a mandatory regulation or policy that allowed no judgment orchoice. If so, the discretionary function exception does not apply because there was no element ofjudgment or choice in the conduct at issue. United States v. Gaubert, 499 U.S. 315, 322. TheSupreme Court has recognized that the requirement of judgment or choice is not satisfied if there isa statute, rule, regulation or administrative policy that specifically prescribes a course of action foran employee to follow.
However, if the challenged conduct is determined to be discretionary, the second part of theGaubert test is to determine whether the conduct is “of the kind that the discretionary functionexception was designed to shield.” Gaubert, 499 U.S. 315, 322-323. As previously noted, whenCongress enacted the Federal Tort Claims Act, its desire was to prevent judicial “second-guessing”of legislative and administrative decisions grounded in social, economic, and political policy. Inother words, where there is room for policy judgment and decision, there is discretion of the sortprotected by the Federal Tort Claims Act.
The Court’s initial inquiry concerning whether the action is a matter of judgment or choicefor the acting Government employee is mandated by the language of the discretionary functionexception. Berkowitz v. U.S., 486 U.S. 531, 536 (1988). “[C]onduct cannot be discretionary unlessit involves an element of judgment or choice.” Id. Thus, when a federal statute, rule, regulation, orpolicy specifically prescribes a course of action for an employee to follow, the exception will notapply. Id. Conversely, when no federal mandate is found, the employee’s conduct is considered tobe the product of judgment or choice and the Court’s initial inquiry is satisfied.
The Government action at issue here is the BIA’s operation of an aeration system on BelcourtLake and the BIA’s alleged failure to adequately mark and warn the public of open water created bythe aeration system. It is undisputed that there is no federal mandate with respect to the BIA’soperation of the aeration system on Belcourt Lake. There are no statutes, rules, regulations, oradministrative policies requiring the BIA to aerate the lake or which specify in any manner when,where, how, or why the lake is to be aerated. There are no statutes, rules, regulations, or policiesrequiring the BIA to warn the public of the open waters created by the aeration system. The recordalso reveals that there were no established policies to guide BIA personnel responsible for markingthe open water on Belcourt Lake or to dictate whether any warning signs were needed or the typesof warnings required. The relevant inquiry is whether there are any statutes, rules, regulations, oradministrative policies which address the BIA’s operation of an aeration system or which requiredwarnings in any specific manner. If not, the BIA’s decision to aerate the lake, and whether toprovide warnings to the public, would fall within the discretionary function exemption to thegovernment’s tort liability. See Childers v. United States, 40 F.3d 973, 976 (9th Cir.1994).
More important, Demery has acknowledged in his response that the BIA’s decision to aeratethe and maintain lake, as well as the marking and warning system employed, are discretionarydecisions under the first part of the Gaubert analysis. See Plaintiff’s Brief in Opposition SummaryJudgment, p.5-6. In summary, the allegedly tortious conduct of the BIA in this case clearly involveda discretionary function or action for which there is no dispute between the parties. The first partof the Gaubert test clearly shows that the challenged conduct was discretionary because there wasan element of judgment or choice. Therefore, the Court must next turn to the second part of theGaubert test to determine whether the conduct of the BIA – including the decision to warn anddecisions as to the type of warnings to be conveyed to the public – is the sort of conduct which thediscretionary function exception was designed to shield.
2) WHETHER THE CONDUCT “IS OF THE KIND THAT THEDISCRETIONARY FUNCTION EXCEPTION WAS DESIGNED TOSHIELD.”
As previously noted, because the BIA’s challenged conduct clearly involved an element ofjudgment or choice, the Court must next ascertain whether that judgment “is of the kind that thediscretionary function exception was designed to shield.” Berkovitz v. U.S., 486 U.S. 531, 536. Theonly types of judgments that the discretionary function exception was designed to shield are“governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S.315, 323 (1991); see Rosebush v. U.S., 119 F.3d 438, 444 (8th Cir. 1997) (explaining that the requirement for a policy nexus is an objective not a subjective one). The Court must determinewhether the adjudication of Demery’s claim would require it to second-guess a governmental policydecision. Id.
At one end of the spectrum are those agency decisions outside the sphere of policy analysiswhere the discretionary function exception provides no defense to liability. For example, theexception would not apply in instances where a government official causes an accident due to hisnegligent driving. Gaubert v. U.S., 499 U.S. 315, n. 7. “Although driving requires the constantexercise of discretion, the official’s decision in exercising that discretion can hardly be said to begrounded in regulatory policy.” Id. In other words, the discretion exercised by a government officialwho was driving in a negligent manner is not the type of judgment that the discretionary exceptionfunction is intended to protect.
At the other end of the spectrum are those agency decisions where the exercise of judgmentor choice is directly related to the furtherance of the agency’s policy goals. Examples of such anexercise of judgment include the regulation of S & L’s by the Federal Home Loan Bank Board,Gaubert v. U.S., 499 U.S. 315, 332 (1991), and the release of vaccine lots by the Food and DrugAdministration, Berkovitz v. U.S., 486 U.S. 531, 454-58. These are the types of decisions thatCongress empowered agencies to make and to which the discretionary function exception shieldsfrom liability.
It is well-established that decisions concerning the proper response to hazards are decisionsprotected from tort liability by the discretionary function exception. Lockett v. United States, 938F.2d 630, 639 (6th Cir. 1991)(proper response to the discovery of PCB’s in a residential area,including not making any response at all, is within the discretionary function exception);Myslakowski v. United States, 806 F.2d 94, 97 (6th Cir. 1986)(decision how or whether to warn thepublic that government Jeeps for sale to the public might be susceptible to rollover is a discretionaryfunction). Decisions on whether and how to make federal land safe for visitors also require makingpolicy judgments which are protected by the discretionary function exception. See Autery v. UnitedStates, 992 F.2d 1523 (11th Cir. 1993); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987). More important, courts have recognized that the decision whether to warn of a potentialdanger is a protected discretionary function. See Graves v. United States, 872 F.2d 133, 137 (6th Cir.1989)(failure to warn of dangers on a dam over which a motor boat plunged was within thediscretionary function exception); Childers v. United States, 40 F.3d 973, 976 (9th Cir.1994)(decisions concerning the manner and types of warnings to be placed on hiking trails inYellowstone National Park were discretionary decisions barring suit by a family of an 11-year oldboy who slipped on the ice and fell to his death); Kiehn v. United States, 984 F.2d 1100, 1106 (10thCir. 1993)(decision on whether to warn of dangers of rock climbing a discretionary function); Laytonv. United States, 984 F.2d 1496, 1502 (8th Cir. 1993)(Forest Service’s failure to warn a tree cuttingcontractor concerning the hazards in cutting trees was protected by the discretionary functionexception).
In this case, the question is where the case falls along the spectrum. According to the DOI,the BIA’s decisions on how best to warn the public of the open waters on Belcourt Lake are the typeof decisions the discretionary function exception was designed to shield. Demery contends that theBIA had a duty to use due care to properly warn people of the open water on Belcourt Lake and thatthe manner in which the BIA chose to perform this duty is not the type of policy decision that thediscretionary function exception was intended to protect. In support of this position, Demery reliesupon the holdings in Indian Towing Co. v. United States, 350 U.S. 61 (1955), and Aslakson v.United States, 790 F.2d 688, 694 (8th Cir. 1986).
In Indian Towing Co. v. United States the plaintiff filed an FTCA claim against theGovernment alleging that the Coast Guard was negligent in its maintenance of a lighthouse. 350U.S. 61, 62 (1955). The Supreme Court held that the Coast Guard, by exercising its discretion tooperate the lighthouse and thereby engendering reliance on the light it produced, was obligated touse due care to keep the lighthouse in good working order or give warning when it was notfunctioning. 350 U.S. 61, 69. The Court concluded that the Government would be liable under theFTCA if the Coast Guard failed in its duty and damage was caused to the plaintiff.
In Aslakson v. United States the plaintiff filed an FTCA claim against the Governmentalleging that his son had died as a result of the Western Area Power Administration’s (WAPA)failure to elevate its power lines for safety reasons. The Government, invoking the discretionaryfunction exception to the FTCA, asserted that it was immune from suit. The Eighth Circuitdisagreed and held that a governmental agency could be held responsible for compliance with itsown safety policies without undermining its governmental function. 790 F.2d 688, 691. InAslakson, the court found that WAPA had violated prescribed standards of the National ElectricSafety Code as well as WAPA’s own internal policies.
This case is distinguishable from both Indian Towing and Aslakson. In Indian Towing, thediscretionary function exception was not at issue because the Government had conceded that theexception did not apply. In Aslakson, the defendant (WAPA) had violated both National ElectricSafety Code standards and its own policies which required WAPA to elevate its power lines. In thiscase, there are simply no statutes, rules, regulations, or policies of any sort that prescribe any specificconduct or actions on the BIA.
The Court concludes as a matter of law that the manner in which the BIA marked the open-water on Belcourt Lake is susceptible to policy analysis and public policy considerations. Suchdecisions implicate competing concerns of safety, cost, and the furtherance of the underlying agencyobjectives. The types of markings, their size, and their placement and location on the lake areobviously subject to discretionary decisions and implicate public policy considerations. SeeBuffington v. U.S., 820 F.Supp. 333, 335-36 (W.D. Mich. 1992) (concluding that considerations ofpublic policy were involved in the Corps of Engineers’ design, construction and maintenance ofbreakwater and warning signs) . The United States Supreme Court has made it clear that the focusof the inquiry is whether the challenged actions are “susceptible to policy analysis” and not whetherthey were, in fact, the result of a policy analysis. Gaubert, 499 U.S. 315, 324-325. See Hughes v.United States, 110 F.3d 765 (11th Cir. 1997). The Supreme Court has also recognized that whenestablished governmental policy, as expressed or implied by statute, regulation, or agency guidelines,allows a Government agent to exercise discretion, it must be presumed that the agent’s acts aregrounded in policy when exercising that discretion. See U.S. v. Gaubert, 499 U.S. 315, 325 (1991);Chantal v. U.S., 104 F.3d 207, 212 (8th Cir. 1997); Appley Bros. v. U.S., 7 F.3d 720, 726 (8th Cir.1993).
The Eighth Circuit’s analysis in Jurzec v. American Motors Corp., 856 F.2d 1116 (8th Cir.1988), is instructive. In Jurzec the plaintiff filed an FTCA claim against the Government challengingthe adequacy of warnings given to purchasers of used jeeps formerly owned by the United StatesPostal Service. The warnings at issue consisted of statements in the contract, the operator’s manual,and a label on the dash informing purchasers of the jeeps’ propensity to rollover. The Eighth Circuitconcluded that the Government was entitled to summary judgment because its conduct fell withinthe discretionary function exception. It explained as follows:
The appellant mistakenly assumes that the Postal Service could have only consideredpublic safety. The Postal Service may have also considered other economic andpolitical public policy considerations. Secondly, assuming but not deciding, that theappellant is correct in that the Postal Service was directed to account for public safetywhen it determined the nature and content of the warning, the instant warningsufficiently operated to serve that purpose. If the warning operated to serve publicsafety, all that remains are matters of particular language, color, and the size of thewarning. All these matters are clearly within the discretion of the Postal Service. 856 F.2d 1116, 1119.
It went on to distinguish the facts presently before it from the facts inAsklason v. United States.
WAPA’s policy clearly required it to elevate its power lines if safety considerationscompelled such action. Because of this requirement, WAPA officials had noopportunity to consider competing public policy considerations. In the instant case,the appellant, on the other hand, provides no evidence that the Postal Service officialswere directed by the decision to warn to take specific action regarding the nature andcontent of the warning. Id.
The Sixth Circuit’s analysis in Rosebush v. U.S., 119 F.3d 438, 442 (6th Cir. 1997), is alsoinstructive. In Rosebush the plaintiffs filed an FTCA claim against United States Forest Service inan effort to recover damages for injuries suffered by their sixteen-month old daughter when she fellinto a fire pit at a Government campground. The plaintiffs alleged that the Forest Service wasnegligent in that it failed to make the fire pit safe for unsupervised toddlers, and failed to warn of thedangers of the fire pit. The Sixth Circuit held that the Government decisions regarding themaintenance of the fire pits and whether to warn of their dangers fell within the discretionaryfunction exception to the FTCA's waiver of sovereign immunity. Rosebush v. U.S., 119 F.3d 438,444. The Sixth Circuit held that, “Decisions concerning the proper response to hazards are protectedfrom tort liability by the discretionary function exception.” 119 F.3d 438, 443. It also stated thatthe “decision whether to warn of potential danger is a protected discretionary function.” Id.
Based on the above reasoning, the Court concludes as a matter of law that the BIA’schallenged conduct in this case is the type of conduct that the discretionary function was designedto protect. It is not the total lack of any warning signs or markers on the lake that is at issue in thiscase, but instead the sufficiency of such markings and warnings. Demery has challenged thediscretionary decisions and choices made by BIA personnel. While the Court does not necessarilyendorse the decisions made by the BIA, it concludes that such decisions are the type that Congressintended to immunize from suit. The fact that BIA officials may not have properly evaluated someor all of the dangers associated with the open water on Belcourt Lake, or given little thought to theneed for warnings or the type of warning signs that should be placed near the open waters to warnthe public, is not to say the considerations unaddressed are outside the ambit of the discretionaryjudgment exception and provide a basis for establishing tort liability. Even the negligent failure toconsider all relevant aspects of the subject matter under consideration, or an abuse of discretion bya government employee, does not vitiate the discretionary character of the decisions made. Toconclude otherwise would be to engage in the type of “judicial second-guessing” that thediscretionary function exemption was designed to avoid.
The management and operational decisions of the BIA relative to the aeration system onBelcourt Lake, including the decision to aerate the lake, the design of the aeration system, whetherto warn of the dangers of open water on the lake attributable to the aeration system, and the typesof markings and warnings as well as the effectiveness of various types of warnings, are within thediscretionary function exception to the Federal Tort Claims Act’s waiver of sovereign immunity.
The motion for summary judgment of dismissal (Docket No. 18) is GRANTED and Demery’s complaint is DISMISSED for lack of subject matter jurisdiction.
Dated this 20th day of February, 2003.
1. There is an exception to this rule in instances where a state has consented to suit in federal court and has waived protection afforded to it by the Eleventh Amendment.