[00:00:01] Speaker 00:
My name is Michael Maxwell, and it is my pleasure to represent the plaintiff, Robert Daniel, on this matter.

[00:00:06] Speaker 00:
I trust that you have carefully reviewed the records, so I'm just going to skim over the top.

[00:00:11] Speaker 00:
And I'm going to take a moment to tell you where I really think that we are conceding some ground, and we're also asking the court to focus its attention.

[00:00:22] Speaker 00:
The Gifford Pinchot National Forest is accessed by old roads.

[00:00:26] Speaker 00:
The Forest Service does not know who built some of these roads, nor does it know who designed some of them.

[00:00:33] Speaker 00:
The Forest Service has neglected the maintenance and repair of many of these roads, and some of them have safety hazards on them in the form of eroded or missing shoulders.

[00:00:45] Speaker 00:
The Forest Service does not have the money in its budget to maintain and repair these hundreds or thousands of miles of roads.

[00:00:52] Speaker 00:
So to fund the maintenance and repair of the roads,

[00:00:56] Speaker 00:
the Forest Service offers its timber for sale to logging companies.

[00:01:01] Speaker 00:
And as part of a timber sales contract, the Forest Service will identify hazards on the roads and will designate the dangerous sections of the road as, quote, unsuitable or unsuitable for haul.

[00:01:13] Speaker 00:
And then it requires a logging company to maintain and repair the roads prior to harvesting and hauling the timber.

[00:01:22] Speaker 00:
The Forest Service published an offer to sell timber called the Willie Thin Offer.

[00:01:26] Speaker 00:
In this offer, it identified a portion of Road 47 that needed repair.

[00:01:33] Speaker 00:
That portion of the road included milepost 14.4 is unsuitable for haul, meaning hazardous.

[00:01:42] Speaker 00:
However, nobody was willing to bid on that offer, presumably because the timber companies thought they couldn't make any money off of it.

[00:01:50] Speaker 00:
Now, the Forest Service has many ways of making a timber sale more financially attractive.

[00:01:56] Speaker 00:
It can adjust the price of the timber.

[00:01:58] Speaker 00:
And it can also cut back on the scope of the required roadwork, which it did here.

[00:02:04] Speaker 00:
And it created a new offer called the Willie Thin Reoffer, in which it changed the scope of the roadwork.

[00:02:12] Speaker 00:
Witness Michael Malgarini testified that the Forest Service knew that that stretch of road that included Milepost 14.4 was hazardous.

[00:02:20] Speaker 00:
But it removed that portion of the road work from the Willie Thin Reoffer in order to make it more financially attractive.

[00:02:30] Speaker 00:
Mr. Malgarini was the successful bidder on the Willie Thin Reoffer.

[00:02:35] Speaker 00:
And after securing the bid, Mr. Malgarini met with a representative of the Forest Service to go over the bid.

[00:02:42] Speaker 00:
He showed them a portion of Road 47 at Milepost 12.2 where the shoulder was missing.

[00:02:51] Speaker 00:
And he asked for a contract modification so that the Forest Service would authorize him and pay him to repair that portion of the road.

[00:03:01] Speaker 00:
And the Forest Service agreed to the contract modification.

[00:03:05] Speaker 00:
Mr. Mogherini then went to milepost 14.4 and told the Forest Service representative that this stretch of road was even more dangerous than the other one.

[00:03:14] Speaker 00:
And records in dispute, but there's some evidence he asked for a contract modification.

[00:03:19] Speaker 00:
And the Forest Service representative told him, there's no money in the budget to pay for that.

[00:03:25] Speaker 00:
And he said something like, I can't believe that you're going to have us log on this road with this.

[00:03:29] Speaker 03:
And even without the contract modification, doesn't the testimony alone raise a genuine issue of material fact?

[00:03:38] Speaker 00:
Yes.

[00:03:40] Speaker 01:
And as to the design, we don't know who designed the road.

[00:03:44] Speaker 01:
Is that right?

[00:03:46] Speaker 00:
That's a key part.

[00:03:47] Speaker 01:
I mean to me when you sort of start with the basics because usually the government agency would be involved and there'd be specs and we don't have that.

[00:03:56] Speaker 01:
So it seems that if we don't know who designed the road, it would seem hard to connect that up then with the discretionary function, right?

[00:04:08] Speaker 00:
Precisely.

[00:04:10] Speaker 03:
You say precisely, but in this case, as I understand it, the government assumed for purposes of your argument that they did design the road and said it was still a discretionary decision to build it.

[00:04:21] Speaker 03:
And I assume what we're talking about now is the pre-elevation, the 9% elevation.

[00:04:26] Speaker 03:
The government assumed that they, for purposes of the argument, that they are the people who designed and constructed it.

[00:04:34] Speaker 03:
But that it wasn't a requirement, that there was no policy requiring that it be built at that elevation.

[00:04:40] Speaker 00:
Close.

[00:04:41] Speaker 00:
The government asked the court to assume, without preventing any evidence, that it had designed the room.

[00:04:46] Speaker 03:
What's the difference?

[00:04:47] Speaker 03:
The point is that they are not contesting the step one of the discretionary function exception analysis.

[00:04:56] Speaker 00:
No, the court is actually saying they're presumed to have made a discretionary design, a discretionary function decision in the design of the road.

[00:05:05] Speaker 01:
Because they presume the government made the design, right?

[00:05:10] Speaker 00:
Because they presume the government made the design.

[00:05:12] Speaker 00:
But the government can't show that it even designed the road, or it made the road.

[00:05:15] Speaker 00:
It could have been a rogue road, it could have been cut by somebody else before the government accessed it.

[00:05:21] Speaker 02:
Don't you need to have a better idea of what the government did before you can even get to step two or when you get to step two to evaluate the second part of that?

[00:05:31] Speaker 02:
Yes.

[00:05:32] Speaker 02:
So we need to know.

[00:05:35] Speaker 02:
Yes.

[00:05:35] Speaker 03:
Why?

[00:05:36] Speaker 03:
I need to understand why you think they need to know.

[00:05:38] Speaker 03:
If, for example, we have a two-part test for, let's just say, in a completely different context in 1983 cases, there's a two-part analysis, whether it's a constitutional violation, whether it's clearly established.

[00:05:48] Speaker 03:
We often decide, without reaching the first element or assuming that the first element has been met, that the second element has not been met.

[00:05:55] Speaker 03:
The same would be true here if we assumed that the government designed and constructed the road and we give you the first step of the analysis, why can't we just resolve this on the second step?

[00:06:09] Speaker 00:
You certainly can.

[00:06:10] Speaker 00:
There is no political, social or economic policy decision in deciding the slope of the road.

[00:06:20] Speaker 02:
Did you also have a... Go ahead.

[00:06:23] Speaker 01:
We do do this in 1983 in constitutional case and you say there's no policy decision.

[00:06:29] Speaker 01:
That kind of begs the question if you don't even know who designed the road and you just have a road out there in the forest, right?

[00:06:37] Speaker 00:
Yes, but try to make this all much simpler.

[00:06:41] Speaker 00:
We can live with the first order on summary judgment or the first order

[00:06:49] Speaker 00:
dismissing part of our case on negligent design and construction.

[00:06:52] Speaker 00:
We can actually live with that.

[00:06:53] Speaker 02:
Did the district court address negligent construction?

[00:06:57] Speaker 00:
The district court found it all to be under the design criteria.

[00:07:01] Speaker 02:
Why is that?

[00:07:01] Speaker 02:
Isn't there a difference between construction and design?

[00:07:03] Speaker 02:
You could have a perfectly designed road, but it could be negligently built.

[00:07:10] Speaker 02:
That's what we think happened.

[00:07:11] Speaker 00:
We think that this was a good design and the person who

[00:07:14] Speaker 00:
had the blade on the bulldozer when they bulldozed the road.

[00:07:19] Speaker 00:
They just tipped the blade a little too sharply and built the road in violation of design.

[00:07:23] Speaker 02:
But the district court didn't really treat the two as separate kind of collapsed construction and design together.

[00:07:29] Speaker 00:
Find any problem with that?

[00:07:31] Speaker 00:
We have a huge problem with that.

[00:07:33] Speaker 00:
We think that was an error by the court.

[00:07:37] Speaker 03:
Your claim as I read it is a design and construction claim, correct?

[00:07:42] Speaker 00:
We filed suit citing the four different causes of action under Keller versus City of Spokane, which are the four things that a government can do with the road over the course of the road's life.

[00:07:54] Speaker 00:
Design it, construct it, maintain it, and repair it.

[00:07:58] Speaker 00:
And we cited all four of them.

[00:08:00] Speaker 00:
We kind of viewed the design and or construction component as having to do with the excessive slope.

[00:08:06] Speaker 00:
We viewed the negligent repair and maintenance as the

[00:08:19] Speaker 00:
Voluminous materials, I would direct you to do that.

[00:08:23] Speaker 00:
Why was the district court wrong in the second summary judgment ruling?

[00:08:32] Speaker 00:
Wrong in three areas.

[00:08:33] Speaker 00:
First of all, they said there's no private party analog.

[00:08:38] Speaker 00:
And the private party analog is very clear.

[00:08:41] Speaker 00:
Any private landowner in the state of Washington

[00:08:44] Speaker 00:
which opens its roads to natural resource extraction has a duty to make the road safe.

[00:08:50] Speaker 00:
It actually has an ordinary care to make the safe roads reasonably safe for the business invitees.

[00:08:56] Speaker 02:
Except here they claim that the government claims that they knew all about this particular defect in the road.

[00:09:03] Speaker 00:
That's the second error.

[00:09:05] Speaker 00:
There's no duty to protect an invitee against an open and obvious condition unless one

[00:09:11] Speaker 00:
restatement of torts 343 or 343A exceptions applies.

[00:09:16] Speaker 00:
And one of those is that the private landowner should anticipate that the person will encounter the risk because they have to.

[00:09:23] Speaker 00:
And they should anticipate that the loggers out there would have to drive on this road as part of their job duties.

[00:09:29] Speaker 00:
We think that there's a genuine issue of material fact about that, and we should have been allowed to argue that with the factual testimony before the court, rather than the court finding that there was no genuine issue of material fact.

[00:09:39] Speaker 01:
Would you go back, and that's the material issue of fact on this landowner invitee and delegation, right?

[00:09:48] Speaker 00:
Yes.

[00:09:50] Speaker 01:
A second part of that has to do with the safe hall classification.

[00:09:54] Speaker 01:
And the district court, as I understand it, dismissed that theory.

[00:10:00] Speaker 01:
Would you address that?

[00:10:02] Speaker 00:
Yes.

[00:10:03] Speaker 00:
Under Rayonnier versus the United States, 1957 Supreme Court decision, it's simply, the private party analog is simply whether or not a state actor

[00:10:16] Speaker 00:
under similar circumstances would be liable.

[00:10:19] Speaker 00:
And our claim is that the state actor would be a private landowner who opens the road and says you can go and extract the natural resources.

[00:10:29] Speaker 00:
under state law, that the private lender has a duty to exercise ordinary care to make the road safe before opening it up.

[00:10:35] Speaker 03:
How do you square that with West Bay Steel, which says that there is no private party analog in a case where the government opened, allowed for the approval of sureties?

[00:10:51] Speaker 00:
You want me to pull that case up?

[00:10:52] Speaker 00:
I've got it right.

[00:10:52] Speaker 03:
I'm with you on the private party analog with respect to the maintenance.

[00:10:57] Speaker 03:
because of this testimony from the owner of the company that talks about his expectation that the shoulder would be repaired, that obviously people and Mr. Daniel in particular was going to be on the land, but I'm not quite understanding what the private party analog is with respect to the safe haul determination.

[00:11:21] Speaker 00:
This is the way I look at it.

[00:11:23] Speaker 00:
You can always refine the need for private party analog in the federal court, because the federal government does so many things that are unusual to find that there is no private party analog.

[00:11:37] Speaker 00:
But that is taking the private party analog too far.

[00:11:43] Speaker 00:
It's more of a simple analysis than the court necessarily made it.

[00:11:48] Speaker 00:
We argue that the district court made the argument more complicated than it needed to be.

[00:11:54] Speaker 01:
So I don't think we've still gotten to the bottom of the safe haul issue.

[00:12:01] Speaker 01:
What's your best authority then for saying this is a private party analog and the court should be reversed on that?

[00:12:09] Speaker 00:
Ray and Yeh versus the United States.

[00:12:12] Speaker 03:
Would you like to reserve the balance of your time for rebuttal?

[00:12:15] Speaker 00:
Yes, I would.

[00:12:16] Speaker 00:
Thank you.

[00:12:32] Speaker 04:
Good morning.

[00:12:33] Speaker 04:
May it please the court, Tanya Culbertson on behalf of the defendant.

[00:12:37] Speaker 04:
The whole back half of the court's discussion just now with my friend on the other side is doubly forfeited.

[00:12:44] Speaker 04:
So Daniel's arguments as to the district court's second order are doubly forfeited and the district court was right not to give him a second bite at the apple, let alone this court now giving him a third.

[00:12:56] Speaker 04:
On both the duty to repair and on the safe hall determination, all of the arguments that Mr. Daniel is making now are not arguments that were raised in his opposition to the second motion to dismiss.

[00:13:07] Speaker 04:
So to send this back now, indeed on appeal Daniel does not explain how the district court abused its discretion in applying local rule 7-H and refusing to reach those arguments raised for the first time on reconsideration.

[00:13:20] Speaker 04:
And then on appeal now, Mr. Daniels does not explain how that was an abuse of discretion for the district court.

[00:13:27] Speaker 04:
So that is the second level of forfeiture that I was discussing.

[00:13:30] Speaker 04:
So for this court to send this case back now regarding the second order, it would have to conclude that the district court abused its discretion in how it applied Rule 7H, and would also have to excuse Daniels' failure in his appellate briefing to even address how that was an abuse of the district court's discretion.

[00:13:49] Speaker 01:
So on the bottom line, which of the claims that he's suggesting reversal on do you think that this would cover?

[00:13:58] Speaker 04:
This would cover the duty to repair at 14.4.

[00:14:01] Speaker 04:
This would also cover the lack of the private party analog.

[00:14:06] Speaker 04:
So I'm hearing my friend on the other side to suggest that, you know, he is now conceding on the design construction discretionary function.

[00:14:15] Speaker 02:
I didn't quite understand him to say he was conceding completely.

[00:14:18] Speaker 04:
Okay, or he could live with that ruling.

[00:14:22] Speaker 02:
He said he could live, but I'm not sure.

[00:14:23] Speaker 02:
Well, finish with your answer to Judge McKeown.

[00:14:29] Speaker 02:
We'll go back to that.

[00:14:30] Speaker 04:
Sure, we can go back to that.

[00:14:31] Speaker 04:
My answer is as to the duty to repair at 14.4 and the private party analog determination.

[00:14:38] Speaker 04:
Those are both waived.

[00:14:41] Speaker 03:
For purposes of your argument today that we disagree with you on the forfeiture issue.

[00:14:45] Speaker 03:
Can you address those claims on the merits?

[00:14:48] Speaker 04:
Absolutely.

[00:14:49] Speaker 04:
So several things about the representation of what was said about the condition of the road at mile marker 14.4.

[00:15:02] Speaker 04:
First of all, it's very clear that the Forest Service duty is the duty to an invitee, right?

[00:15:07] Speaker 04:
So they do not have a duty to repair open and obvious hazards.

[00:15:10] Speaker 04:
There's no question from the record that the condition of the road at 14.4 was known and obvious.

[00:15:16] Speaker 04:
Mr. Daniel talked about it.

[00:15:17] Speaker 04:
Mr. Malgarini talked about it.

[00:15:18] Speaker 02:
Is the superelevation obvious and known?

[00:15:22] Speaker 04:
The superelevation, the fact that the road was sloped and around a curve, that was known and I don't think that there is a legal requirement for Mr. Daniel to understand exactly that the superelevation is 9%.

[00:15:34] Speaker 04:
He did say that road is steep, I know how to encounter it.

[00:15:39] Speaker 04:
Kamala, the space needle case is a good example where the court says you don't have to

[00:15:47] Speaker 04:
He doesn't have to sort of understand the full operation of the elevators to understand that the elevator shaft is dangerous.

[00:15:53] Speaker 04:
It's the same sort of analogy here.

[00:15:56] Speaker 03:
He doesn't have to know the 9%.

[00:15:58] Speaker 03:
On the maintenance and repair aspect of Milepost 14.4 and Daniel's argument that the private party analog is the duty of a private land owner to an invitee, you would agree that that satisfies the private party analog?

[00:16:13] Speaker 04:
No, I would not agree that that satisfies the private party analog.

[00:16:18] Speaker 04:
The private party analog that the district court said was not satisfied was the determination that the road is safe for haul under federal standards.

[00:16:26] Speaker 03:
So I don't want to talk about that just yet.

[00:16:27] Speaker 03:
I want to talk about this other part with respect to the open and obvious danger and the repair of the road.

[00:16:34] Speaker 03:
So tell me why that's not a sufficient private party analog.

[00:16:38] Speaker 04:
I don't think the issue there necessarily is whether that is a sufficient private party analog.

[00:16:42] Speaker 04:
The issue there is whether the Forest Service actually had the duty to repair this open and obvious hazard.

[00:16:48] Speaker 04:
So on that point, we are at the duty.

[00:16:50] Speaker 03:
Okay.

[00:16:51] Speaker 03:
So you're at the duty.

[00:16:52] Speaker 03:
We're not talking about the private party analog and we're talking about the duty and all that Daniel needs to do is raise

[00:16:58] Speaker 03:
an issue of fact to be able to get past summary judgment.

[00:17:02] Speaker 03:
Do you agree?

[00:17:03] Speaker 04:
I do agree, but I don't agree that he has done so.

[00:17:06] Speaker 03:
So tell me why based on the testimony of the company owner that sort of at least in my view raises some question of fact with respect to the maintenance and repair of that road by the government.

[00:17:19] Speaker 04:
So what the record shows is that Sarah Rockies testimony in her deposition is that mile marker 12.2 was raised to us we went out we inspected it we approve that contract change that repair was made there was no discussion of 14.4 before the accident.

[00:17:35] Speaker 04:
And then on the other side of that, you have Malgarini's testimony saying, we all knew that was a problematic portion of the road.

[00:17:42] Speaker 04:
I thought it was equally dangerous.

[00:17:44] Speaker 04:
But what he does not say is, I asked the Forest Service to allow me to repair that before the accident.

[00:17:50] Speaker 04:
And when he was asked specifically, did you ask to repair it before the accident?

[00:17:54] Speaker 04:
He says, I don't know.

[00:17:55] Speaker 04:
I don't remember.

[00:17:56] Speaker 01:
But he justified he made them aware of it.

[00:17:59] Speaker 04:
He made them aware of it, but everybody was already aware of it.

[00:18:02] Speaker 04:
It was open and obvious.

[00:18:03] Speaker 04:
That does not resolve the question of whether the Forest Service then had a duty to actually repair it.

[00:18:08] Speaker 01:
Does the Forest Service have a duty to approve any of the repairs?

[00:18:12] Speaker 01:
I mean, there's kind of this sequential... They have a duty to... I'm sorry.

[00:18:16] Speaker 04:
They, under the contract, had to approve road reconstruction.

[00:18:21] Speaker 04:
So any construction that was above and beyond regular maintenance and small repairs that...

[00:18:27] Speaker 01:
And you say everybody knows this road, whether it's dangerous or not, it needs repair.

[00:18:33] Speaker 01:
It's got hazards, right?

[00:18:36] Speaker 04:
I'm not sure he says that needs repair.

[00:18:40] Speaker 04:
I want that repaired.

[00:18:41] Speaker 01:
He says, boy.

[00:18:42] Speaker 01:
He says, well, it's got a dangerous condition.

[00:18:45] Speaker 04:
Sure.

[00:18:45] Speaker 01:
And then doesn't the Forest Service have an obligation?

[00:18:49] Speaker 04:
Not necessarily, Your Honor.

[00:18:50] Speaker 04:
The Forest Service and any landowner in a Washington law does not have a duty to deliver a piece of land or road, and I'm talking here about a private road, free of any hazard.

[00:19:02] Speaker 04:
It has to be free of latent hazards.

[00:19:04] Speaker 03:
I think in the Washington law, even if a dangerous land condition is open and obvious, a landowner is liable if he has reason to expect that the invitee will proceed to encounter the known or obvious danger.

[00:19:14] Speaker 03:
Correct.

[00:19:15] Speaker 03:
I don't understand why it matters that he didn't ask for it to be repaired if it was

[00:19:19] Speaker 03:
open and obvious.

[00:19:20] Speaker 04:
Because the Forest Service did not have reason to know that Mr. Daniel would encounter this hazard in this way.

[00:19:27] Speaker 04:
They certified the road as safe for haul, so that's highway legal vehicles that are high clearance.

[00:19:33] Speaker 04:
It is safe for haul on a level two road for logging operations.

[00:19:37] Speaker 04:
They do not understand or have reason to believe that an employee is going to take an excavator over that portion of the road over ice.

[00:19:46] Speaker 04:
And that is the piece that they would have to understand in order to, you know, for this restatement.

[00:19:51] Speaker 01:
That's pretty granular.

[00:19:52] Speaker 01:
That's like saying, well, they really didn't know that it was going to snow up there and then we would have ice and then it would be, I mean, that's kind of a requirement

[00:20:03] Speaker 01:
that you can impute some common knowledge to this service that it could be used in a lot of conditions with a lot of different vehicles.

[00:20:10] Speaker 01:
Why did they need to know this granular?

[00:20:14] Speaker 04:
Specifically?

[00:20:15] Speaker 04:
Well, so let me answer this question in a different way.

[00:20:18] Speaker 04:
This gets us to the delegation piece which the district court also examined and said this contract clearly delegates responsibility for day-to-day operations and worker safety

[00:20:29] Speaker 04:
on this contract over the stretch of road to our Sierra.

[00:20:32] Speaker 04:
So the Forest Service says we've, you know, we've considered everything.

[00:20:36] Speaker 04:
We've looked at this condition for road.

[00:20:37] Speaker 04:
It meets the federal requirements for safe haul.

[00:20:40] Speaker 04:
You know, we've delegated everything else to you.

[00:20:43] Speaker 04:
So our assumption is you will operate safely over that stretch of road.

[00:20:46] Speaker 04:
And so even, you know,

[00:20:48] Speaker 04:
Granting you that perhaps, you know, they might have been able to imagine that there was a possibility for some sort of accident here.

[00:20:56] Speaker 02:
They had delegated that safety duty to our CRO.

[00:21:06] Speaker 04:
Not to repair, no your honor, not to repair the shoulder at 14.4 and they could not.

[00:21:11] Speaker 02:
Then how do you say that there was a complete delegation of authority to the blocking curve?

[00:21:15] Speaker 04:
Complete delegation to how the operations are conducted and that they would be conducted safely.

[00:21:20] Speaker 04:
So it was our CRO's responsibility to make sure that the equipment that was being used on the road was the appropriate equipment, that the conditions, the choice to, you know, take an excavator over that road

[00:21:31] Speaker 04:
I will also, getting back quickly to the restatement point that we talked about and whether they could anticipate that this might happen.

[00:21:41] Speaker 04:
Mr. Daniel's own testimony is that he did not have to be

[00:21:46] Speaker 04:
Clearing out the snow on that particular road on that particular day, Mr. Malgarini told Daniel, get to it when you can.

[00:21:53] Speaker 04:
Logging operations were not even active over the portion of the road he was trying to clear.

[00:21:57] Speaker 04:
When he got his truck stuck and then he went back to base camp to see if he could use something to pull his truck out, he was asked in his deposition, did you have to go get the truck right now?

[00:22:08] Speaker 04:
And he said, no.

[00:22:09] Speaker 04:
Could you have waited for conditions to improve?

[00:22:12] Speaker 04:
Yes.

[00:22:12] Speaker 04:
So, you know, the record itself does not support that he had no choice but to, you know, operate in an unsafe manner in this way.

[00:22:23] Speaker 04:
And that delegation piece that I was discussing is delegation of the duty to make sure operations are conducted in a safe manner.

[00:22:29] Speaker 02:
Is it your argument that using the tractor, whatever it was called, was unsafe?

[00:22:37] Speaker 02:
The operation of that tractor was unsafe?

[00:22:40] Speaker 04:
I think that the Forest Service's duty was to certify the road as a level two road safe for highway legal vehicles that are high clearance.

[00:22:50] Speaker 04:
The excavator is neither of those things.

[00:22:52] Speaker 04:
It is not highway legal.

[00:22:53] Speaker 04:
It is not a high clearance vehicle.

[00:22:54] Speaker 04:
That is not what the Forest Service was inspecting that road for.

[00:22:59] Speaker 04:
Certainly I think common sense dictates that taking a metal track.

[00:23:03] Speaker 02:
Was the logging company then prohibited from using the excavator?

[00:23:08] Speaker 04:
It was... So there's testimony in the record Sarah Rocky explains that excavators are placed onto low boys and typically towed in and that yes the Forest Service understands that excavators are used for some portion of work done under timber sale contracts but that that is clearing of the brush on the side of the road clearing of the ditches on and off the road and so

[00:23:34] Speaker 04:
Again, all of this goes to the delegation of the safe operation.

[00:23:37] Speaker 04:
There are safe ways to use excavators on these roads.

[00:23:40] Speaker 04:
Unfortunately, what happened to Mr. Daniel was not a safe way to operate an excavator on a road with a known hazard area at 14.4.

[00:23:48] Speaker 01:
So the district court dismissed this landowner invitee in the safe hall and

[00:23:58] Speaker 01:
Your colleague says, well, wait a second, what about Rainier versus the United States?

[00:24:06] Speaker 01:
How do you respond to that argument?

[00:24:09] Speaker 04:
I respond to that in the same way that Josh decided by raising West Base Deal, that a determination that a road is safe for haul is sort of a term of art.

[00:24:18] Speaker 04:
It is something that is governed by federal requirements in the same way that certifying that the sureties that were offered in West Base Deal meet the requirements of the Miller Act, and that that is not the equivalent of a private landowner having to keep private roads over private property in a reasonably safe condition for travel.

[00:24:37] Speaker 04:
That is not a sufficiently similar comparison.

[00:24:42] Speaker 02:
Ms.

[00:24:42] Speaker 02:
Goldberg, can I ask you a little bit about the concession in district court about the government, apparently you assumed or asked the district court to assume that the government designed and constructed the road.

[00:25:02] Speaker 02:
What was that?

[00:25:03] Speaker 02:
What did you actually ask the district court to assume?

[00:25:06] Speaker 04:
So I do not read the filings in the district court to do that.

[00:25:11] Speaker 04:
The filings in the district court go through the two steps of the discretionary function analysis.

[00:25:15] Speaker 04:
And at the first step, what you look at is whether there's a statute of regulation or a policy that specifically prescribes a course of action.

[00:25:22] Speaker 04:
And so the forest service put in, you know, as evidence, here are all the policies, you know, here's the deposition about how these policies would apply and said, you know,

[00:25:32] Speaker 04:
We don't have original blueprints for when this road was constructed.

[00:25:36] Speaker 04:
We don't know if we originally constructed it.

[00:25:40] Speaker 04:
But that's not the inquiry at step one.

[00:25:41] Speaker 04:
The inquiry is

[00:25:44] Speaker 04:
You know, assuming that we constructed it, this is what we would have applied.

[00:25:48] Speaker 04:
And I pointed this out in the brief, and I'd just like to point it out again here briefly.

[00:25:53] Speaker 04:
If it is indeed true that the Forest Service did not originally construct the road, it cannot be liable for negligent construction.

[00:26:01] Speaker 04:
It might be... But that's a whole different issue.

[00:26:03] Speaker 04:
Well, it's the same, I mean, ultimately it's a liability issue.

[00:26:08] Speaker 03:
The best case scenario here is that the plaintiffs are able to establish that the government constructed the road and that it did so for a non-discretionary reason.

[00:26:19] Speaker 03:
Correct?

[00:26:20] Speaker 03:
Correct.

[00:26:20] Speaker 03:
Okay.

[00:26:21] Speaker 03:
So if you are, I don't care if you use the word concession or not, if there is an assumption that the government constructed the road, that's

[00:26:30] Speaker 03:
halfway there for the plaintiff.

[00:26:32] Speaker 03:
But they still need to be able to show that it was a non-discretionary decision.

[00:26:36] Speaker 03:
And that is the prong under which

[00:26:39] Speaker 03:
the district court found that the exception applied.

[00:26:42] Speaker 04:
Absolutely right.

[00:26:43] Speaker 04:
I think that is absolutely right.

[00:26:45] Speaker 04:
And you don't look, you know, under the discretionary function exception, you're not looking at what was the actual decision that was made.

[00:26:51] Speaker 04:
You look at what was the guidance for the way in which this decision was supposed to be made.

[00:26:55] Speaker 01:
It's like this Rubik's Cube where we don't know who designed the road.

[00:27:00] Speaker 01:
We got this road hanging out there in the forest.

[00:27:03] Speaker 01:
So how can you apply part two, a policy

[00:27:10] Speaker 01:
sort of undisconnected from this road that we don't know how it appeared.

[00:27:15] Speaker 04:
I guess the way that I would sort of present it to the court is either let's assume we built it.

[00:27:23] Speaker 04:
If we built it, we applied these standards and, you know, we fall within the discretionary function of exception.

[00:27:29] Speaker 02:
Do we know that these standards existed at the time that you built it?

[00:27:31] Speaker 01:
At the magic time that we don't know you designed it?

[00:27:35] Speaker 04:
I do not know the state of the policy handbooks at that time.

[00:27:38] Speaker 04:
But, so your other option, however, is... Let me ask you one, I have one last question.

[00:27:42] Speaker 02:
Of course.

[00:27:43] Speaker 02:
I just want to make sure you... Of course.

[00:27:45] Speaker 02:
It is the government's burden to establish the discretionary function.

[00:27:48] Speaker 02:
Function exception applies.

[00:27:49] Speaker 02:
Yeah, it's like a defense or...

[00:27:51] Speaker 04:
Yes, true, but ultimately it is the defendant's burden.

[00:27:55] Speaker 04:
If we were to move to the liability stage under Washington law, it is the defendant's burden to prove all the four elements of negligence.

[00:28:03] Speaker 04:
And so that is where ultimately under liability... The plaintiff's burden.

[00:28:07] Speaker 04:
I'm sorry, the plaintiff's burden.

[00:28:09] Speaker 04:
Yes, thank you.

[00:28:11] Speaker 04:
And ultimately, he would fail in being able to prove that the Forest Service built the road.

[00:28:16] Speaker 03:
So what's the other option that you were

[00:28:18] Speaker 04:
That is the other option, right?

[00:28:20] Speaker 04:
So either we have discretionary function exception if you assume that the Forest Service did in fact build the road, and if the Forest Service did not build the road, then it cannot be liable for negligent design and construction.

[00:28:30] Speaker 04:
It may be liable for something else.

[00:28:32] Speaker 04:
It may be liable for, you know, not reconstructing the road once it saw the condition of the road.

[00:28:36] Speaker 03:
That's all the other thing.

[00:28:38] Speaker 03:
Which is on the negligent, you know, repair and maintenance, that is a separate issue that may continue to exist.

[00:28:44] Speaker 03:
Right.

[00:28:45] Speaker 03:
Right.

[00:28:45] Speaker 04:
Which, you know, as we've briefed for all the other reasons, that separately fits.

[00:28:49] Speaker 03:
Which is why I understand your point on the other side to say it doesn't really matter whether we win on this claim or this claim.

[00:28:53] Speaker 03:
If we can win on the other, then that's perfectly fine with them.

[00:28:56] Speaker 04:
Right.

[00:28:56] Speaker 04:
Yeah.

[00:28:56] Speaker 04:
I guess my point is I don't want the court to get hung up on the design and construction claim simply because there's a lack of evidence about who built the road.

[00:29:04] Speaker 04:
Thank you very much.

[00:29:05] Speaker 03:
Thank you.

[00:29:09] Speaker 03:
Mr. Maxwell, we'll put two minutes on the clock for you.

[00:29:11] Speaker 03:
We did take your friend on the other side a little over her time.

[00:29:19] Speaker 00:
All right.

[00:29:19] Speaker 00:
On page 16 of our appellate brief, we cite Reignier.

[00:29:23] Speaker 00:
The question of whether a party-pivot analog exists is simply a question of, quote, whether a private person would be responsible for similar negligence under the laws of the state where the acts occurred.

[00:29:33] Speaker 00:
That's Reignier.

[00:29:34] Speaker 00:
That's been the law since 1957.

[00:29:36] Speaker 00:
We don't think that West Bay

[00:29:38] Speaker 00:
Refines that or even contradicts that and so we think that the private party analog under The government has a duty under minikin versus cars state court case To keep the exercise ordinary care to keep the land safe for its business invitees And maybe explain to me if I'm misunderstanding your claim

[00:30:03] Speaker 03:
I really have parsed this second issue that came up in the summary judgment motion, sort of this argument with respect to the repair and maintenance and the safe hall, to be two components of this argument.

[00:30:17] Speaker 03:
So even if we were to determine that there's no private party analog with respect to the safe hall, we can still find that there is a genuine issue of fact

[00:30:28] Speaker 03:
with respect to what I hear, the conceited private party analog on the repair and maintenance for the open and obvious danger.

[00:30:39] Speaker 00:
The whole safe hall thing, I think, simply means opening the road.

[00:30:43] Speaker 00:
Private landowner has the option of closing a road.

[00:30:45] Speaker 00:
So you don't need that.

[00:30:46] Speaker 01:
I guess my question is... What does it do for your case?

[00:30:48] Speaker 01:
Let's say it dropped out.

[00:30:52] Speaker 01:
Would it change the remedy?

[00:30:56] Speaker 03:
You continue to have a claim for the repair and maintenance and the private party analog that exists, and I hear the government conceding exists with respect to that claim.

[00:31:10] Speaker 00:
Yes, okay.

[00:31:11] Speaker 03:
Do you agree?

[00:31:12] Speaker 00:
Yes.

[00:31:12] Speaker 01:
And so would it change it if the safe call were affirmed?

[00:31:16] Speaker 01:
Would it change your remedy that you would be entitled to if you were able to proceed on the repair and maintenance?

[00:31:24] Speaker 00:
I haven't thought about that.

[00:31:27] Speaker 00:
But I think it's a good question.

[00:31:30] Speaker 00:
In the few moments that I have left, I want to talk about the other.

[00:31:32] Speaker 01:
You don't have an answer for me.

[00:31:33] Speaker 00:
I'm afraid I don't right now.

[00:31:34] Speaker 00:
I'm just not smart enough.

[00:31:36] Speaker 00:
I'm not as smart as a lobster that's standing behind me.

[00:31:42] Speaker 00:
The third area where the court

[00:31:46] Speaker 00:
granted summary judgment was on the explicit delegation.

[00:31:50] Speaker 00:
Under Washington law, a delegation to the contractor must be explicit in the contract.

[00:31:57] Speaker 00:
The government has yet to produce a clause in the contract where there's an explicit delegation.

[00:32:02] Speaker 00:
And it must cede all authority over the project to the subcontractor.

[00:32:08] Speaker 00:
Here the government with withheld for itself the authority to approve or not approve prepare Repair of the road shoulders Therefore it didn't it did not this is a genuine issue material fact as to whether or not it ceded that control to our Sierra logging and mr. Monterey Thank you counsel.

[00:32:26] Speaker 03:
Okay.

[00:32:26] Speaker 03:
Thank you both counsel for your argument.

[00:32:28] Speaker 03:
This case is now submitted.

[00:32:29] Speaker 00:
All right.

[00:32:30] Speaker 00:
Thank you.

[00:32:30] Speaker ?:
I

[00:32:34] Speaker 03:
Next, we'll hear argument in three-pack, the City of Seattle and each