courts have held that the government's decisions not to mark certain hazards are insulated by the discretionary function exception. See, e.g., Shansky v. United States, 164 F.3d 688 (finding failure to install handrail and to post warning signs in Hubbell Trading Post, a national historic site managed by the NPS, fell within the discretionary function exception); Valdez v. United States, 56 F.3d 1177, 1180 (9th Cir. 1995) (holding that NPS decisions as to visitor safety "necessarily involve[] an exercise of discretion"); Childers v. United States, 40 F.3d 973, 976 (9th Cir. 1994) (finding exercise of discretion in decision not to mark certain trail hazards),cert. denied, 514 U.S. 1095 (1995); Brotman v. United States, 111 F. Supp. 2d 418 (finding NPS decision not to post a warning sign at the Statue of Liberty to fall within the discretionary function exception). Indeed, in Manns v. United States, the Coast Guard's decision as to whether to mark sandbars was found to be discretionary. 945 F. Supp. 1349, 1351 (D. Ore. 1996) (holding that the Coast Guard has "substantial discretion" in marking sandbars). In this case, the government presented the testimony of Barry Sullivan, Superintendent of Gateway National Recreation Area, who testified that the NPS Management Policies were not intended to impose park-specific safety prescriptions but left decisions regarding public safety in the discretion of the decision makers at the park level.

Accordingly, both the Supreme Court and the Ninth Circuit have held that these cases are not controlling in this context. See Manns v. United States, 945 F.Supp. 1349, 1352 (D.Or.1996) (citing United States v. Varig Airlines, 467 U.S. 797, 812, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); and Kennewick, 880 F.2d at 1023);Gaubert, 499 U.S. at 326, 111 S.Ct. 1267;Miller, 163 F.3d at 596–97. More importantly, plaintiffs' assertion that the challenged decisions were not susceptible to a policy analysis is belied by the language of the guidelines underlying this case and defendant's sworn statements. For instance, the Forest Service Manual states that the response to a WFU fire will be based on ecological, social, and legal consequences, firefighter and public safety, and natural and cultural resources.

rosion, were protected by discretionary function exception); Canadian Pacific (Bermuda) Limited v. United States, 534 F.2d 1165 (5th Cir. 1976) (finding "no duty imposed on the Corps . . . to survey or dredge the channel of the St. Johns River at any particular time or placet; t]o require such a duty would . . . make the Government the guarantor or insurer of the navigability at all times of the river, despite its ever-changing bed affected by tide, currents, erosion . . ."); Kommanvittselskapet Harwi (Rolf Wigand) v. United States, 305 F.Supp. 882, 890 (E.D.Pa. 1969) (government was not obliged to survey and dredge the Delaware River on a regular basis), aff'd, 467 F.2d 456 (3rd Cir. 1972); In re Lloyd's Leasing, Ltd., 764 F.Supp. 1114, 1137 (S.D.Tex. 1990) ("Determinations that the Corps made regarding frequency and location of maintenance dredging and surveying in the Bar Channel are, similarly, decisions based on policy considerations properly left to the direction of the Corps"); Manns v. United States, 945 F.Supp. 1349 (D.Or. 1996) (the discretionary function exception barred claims challenging the United States' decisions regarding dredging and inspection of the Columbia River); Northlight Harbor LLC v. United States, 561 F.Supp.2d 517, 527 (D.N.J. 2008) (holding Corps' decisions in dredging that changed current in channel was protected by discretionary function exception). As to repair and maintenance of the MRGO, the government points out that Judge Duval ruled favorably on this issue for some but not all plaintiffs; the court granted judgment for the plaintiffs located in the St. Bernard Polder, but denied recovery to the Robinsons, located in the New Orleans East Polder. The government contends that Southern Scrap's facility is located next to the New Orleans Polder and the St. Bernard Polder, on the Industrial Canal and outside any flood control structures.