## Facts

- Frank Tippett and Judy Rand joined a guided snowmobile tour in Yellowstone National Park in February 1993.
- The tour encountered a moose standing in the roadway on the route toward Old Faithful.
- Earlier, other snowmobilers attempted to pass the moose; the moose charged a snowmobile and knocked two passengers to the ground.
- Park Ranger Dave Phillips learned of the moose, monitored it during the day, and observed multiple groups successfully passing it southbound.
- As Tippett’s group exited the park, Phillips directed the group to pass the moose on the right in line with other snowmobilers.
- While attempting to pass, the moose charged Tippett’s snowmobile, kicked through the windscreen, struck his helmet, and knocked him off.
- Tippett suffered a broken neck and later recovered; the moose was injured and destroyed.
- Tippett and Rand sued the United States under the Federal Tort Claims Act (FTCA) for negligence and loss of consortium, alleging failure to protect visitors, failure to close or restrict the road, and negligent instruction to pass the moose.
- The district court dismissed for lack of subject-matter jurisdiction under the FTCA discretionary function exception; plaintiffs appealed.

## Issues

1. Whether the FTCA discretionary function exception barred claims based on a park ranger’s decisions about managing a dangerous wild animal and directing visitor traffic.
2. Whether National Park Service regulations or policies imposed specific, mandatory duties (such as road closure or fixed separation distances) that removed discretion.

## Decision

- The Tenth Circuit affirmed the dismissal for lack of subject-matter jurisdiction.
- The court held the ranger’s actions and omissions involved judgment or choice because no statute, regulation, or policy prescribed a specific required response to the moose.
- The court held the judgment was the type protected by the discretionary function exception because it involved balancing visitor safety, public access, and wildlife conservation.
- The court concluded the exception applies even if the discretion was abused, so alleged negligence did not defeat jurisdictional immunity.

## Legal Principles

- The FTCA waives sovereign immunity for certain torts but retains immunity for claims based on discretionary functions or duties, even if discretion is abused. 28 U.S.C. § 2680(a).
- Under the Berkovitz test, courts ask (1) whether the conduct involved judgment or choice, and (2) whether the judgment is of the kind the discretionary function exception protects (i.e., grounded in policy considerations).
- General safety and management directives that require employees to protect human life while also preserving wildlife and public access typically do not eliminate discretion unless they prescribe a specific, mandatory course of action.
- On-the-ground park management decisions concerning wildlife and visitor access can qualify as protected policy-based judgments when they reflect delegated authority to balance competing objectives.

## Conclusion

The court held that the ranger’s decisions to monitor the moose, allow continued use of the roadway, and direct snowmobilers on how to pass reflected discretionary, policy-based judgment within the FTCA discretionary function exception, barring the negligence and loss-of-consortium claims for lack of subject-matter jurisdiction.


Tippett v. United States, 108 F.3d 1194 (10th Cir. 1997)