the court. Conditions existing long after installation of the standpipe and approximately eight years after the government pulled out of the project have no bearing on the character of its decisions made in 1983, or before.
Plaintiff and Pagnotti argue that the failure to erect a warning device is not defensible as a policy decision and takes OSM's conduct outside the discretionary function exemption.
OSM argues that uncontroverted affidavits and documents establish that it delegated the installation of safety devices to Tully Drilling and that its decision to do so was a discretionary one exempt from judicial review under the FTCA.
Courts have held the decision to delegate responsibility for safety measures to be a discretionary determination exempt from review, particularly in cases in which the decision-maker balanced concern for public safety against staffing, efficiency, budgetary, operational and administrative limitations. See: United States v. S.A. Empresa de Viacao Aerea Rio Grandense, (Varig Airlines), 467 U.S. 797, 820, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984).
The decision not to install warning devices or post warning signs can be discretionary if government employees weigh competing considerations in making that determination, or if that decision is a component of a larger policy decision. In Zumwalt v. United States, 928 F.2d 951, 955 (10th Cir. 1991), for example, the Tenth Circuit held that United States Park Services' failure to post warning signs on a wilderness trail was related to a policy decision to preserve the wilderness setting in its natural state for the benefit of park visitors, and was, therefore, discretionary. Similarly, in Johnson, supra, 949 F.2d at 340, the court held that decisions made by Park Service employees in the course of conducting a search and rescue mission for plaintiff's decedent were discretionary in that they required the park rangers to balance competing policy considerations. See also: Miller v. United States, 710 F.2d 656, 665 (10th Cir.) (claim of failure to warn of hazardous highway condition barred under the discretionary function exception because highway construction process was infused with a "welter of public policy considerations"), cert. denied, 464 U.S. 939, 78 L. Ed. 2d 316, 104 S. Ct. 352 (1983). Cf. Boyd, supra, (Army Corps of Engineers decision to zone a portion of a federally controlled lake "nonswimming' was a policy decision but its decision not to post warning signs in that area was not--alleged failure to warn not shown to be part of the discretionary zoning decision--"The government's failure to warn was not connected to the policy decision which created the hazard.")
Decision to delegate
The decision to delegate responsibility for safety measures can, likewise, be discretionary if the decision-maker balanced competing considerations. See: United States v. S.A. Empresa de Viacao Aerea Rio Grandense, (Varig Airlines), supra. Here, the decision to delegate responsibility for installing signs and warning devices was a discretionary one for the same reason the decision to require installation of such devices on standpipes in private areas is of the same character.
Voluntary assumption of an obligation
Plaintiff argues that the federal government undertook an obligation to ensure the safe installation and maintenance of the Centralia project standpipes, and that it breached that obligation by failing to make certain that warning or safety devices were installed or maintained at standpipe BH-34.
The government concedes that no maintenance or repair work was performed on BH S-34 by OSM. (Record Document No. 26, exhibit 3, United States' response to plaintiff's interrogatories, question 4).
It is true that if the government undertakes a duty to inspect or warn, it is liable for the consequences if that obligation is performed negligently. See: Indian Towing Co. v. United States, 350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955) (negligent failure to maintain a lighthouse in good working order subjected government to suit under the FTCA even though the initial decision to undertake and maintain lighthouse service was a discretionary policy judgment).
Here, not only is there nothing to suggest that the government undertook such an obligation, there is evidence to the contrary. As evidence of such an undertaking, the opposing parties point to a clause in OSM's agreement with Pagnotti which states that Pagnotti will refrain from activities which will disturb the project or cause it to be disturbed, without first receiving permission from the federal government.
There is absolutely no basis for expanding a non-interference clause into an assumption of an obligation to make and keep the premises safe. There is nothing whatsoever to suggest that the inclusion of that clause was intended to signify OSM's undertaking of an obligation to inspect or maintain the premises, much less one that extended eight years after its involvement with the project ended. Agreements are not presumed to extend into perpetuity. If no term is stated, it is assumed that the parties intended the contract to remain in force for a reasonable period of time or until such time as their objectives could be accomplished.
To accept opposing parties' argument that the government had a duty to inspect or maintain, we would have to imply an obligation to inspect the premises in perpetuity for defects and safety hazards. No basis exists for imposing such an extraordinary obligation on OSM.
In addition, the terms of OSM's contract with Tully Drilling run counter to the opposing parties' assertion. The government delegated responsibility for installation of warning devices to Tully Drilling. Even if OSM had an obligation to inspect the work performed by Tully Drilling to see that it was done correctly, that obligation was fulfilled. The work performed conformed to contract specifications without the installation of a warning device on standpipe BH-34, because, as discussed above, the contract did not require installation of warning devices on standpipes located on non-public roads.
Request for additional time
As stated above, plaintiff asked for additional time to conduct discovery only if the court disposed of defendant's motion on summary judgment grounds. We disposed of the motion on jurisdictional grounds, and plaintiff did not request additional time to respond to the jurisdictional aspects of defendant's motion.
In any event, the grant of additional time for discovery would serve no useful purpose. There are no material issues of fact. It is clear as a matter of law that the discretionary function exemption applies to all conduct which arguably could be the basis for a cause of action against the United States under the FTCA. In addition, the only issue on which plaintiff focuses her discovery request in particular is the existence of an alleged mandatory duty on the part of government employees to install a warning device on standpipe BH-34. That duty depends on the existence of a statute or regulation requiring such a device, issues which are a matter of legal research, not discovery. The existence or non-existence of a legal duty can be States or access to its records on the project. Federal statutes and regulations are equally accessible to both sides.
Remaining state law claims
The claim asserted under the FTCA is the only federally based claim. In addition to that claim, plaintiff asserts state law claims for the death of Korn. Plaintiff's state law claims will be dismissed for lack of subject matter jurisdiction under United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). We decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367, since only state-based claims remain.
Plaintiff's state-law claims will be dismissed without prejudice, such that plaintiff will not be barred by any ruling of this court from pursuing either claim in state court. We make no judgment or assessment on the merit of those claims.
* * *
An order will be entered consistent with this opinion.
James F. McClure, Jr., United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 814 F. Supp. 1221.
March 3, 1993
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. The United States' motion (Record Document No. 7) to dismiss for lack of subject matter jurisdiction is granted.
2. Plaintiff's request for additional time to conduct discovery on the claim asserted against the United States is denied as moot.
3. All claims and crossclaims asserted against the United States are dismissed for lack of subject matter jurisdiction.
4. Plaintiff's state-law claims for the death of Ralph E. Korn are dismissed without prejudice for lack of subject matter jurisdiction.
5. The Clerk of Court is directed to close this file.
James F. McClure, Jr., United States District Judge