The Park Service is statutorily charged with preserving the "fundamental purpose of the park by [conserving] the scenery and historical object[s] . . . by such means as will leave them unimpaired for the enjoyment of future generations." Soni v. United States, 739 F. Supp. 485, 487 (E.D. Mo. 1990) (quoting 16 U.S.C. §(s) 1). This mandate would require the agency to balance the safety benefit of making changes to the steps with the aesthetic effect of such changes on the Memorial's overall design and its historic significance. It is well established that a decision which requires the weighing of competing interests is "susceptible to policy analysis" and typifies the kind of governmental decisions which Congress intended to shield from judicial second-guessing. Gaubert, 499 U.S. at 325; see also Bowman v. United States, 820 F.2d 1393 (4th Cir. 1987) (finding decision not to place guardrails or warning signs along embankment of scenic highway resulted from balancing factors such as "safety, aesthetics, environmental impact and available financial resources" and thus involved a policy judgment covered by the discretionary function exception); Cassagnol-Figueroa v. United States, 755 F. Supp. 514 (D. P.R. 1991) (concluding decision not to install safety features at low wall of 450-

supervise an employee or warn about his history of sexual abuse where the two-prong Berkovitz test was satisfied, without addressing negligence or due care; noting that although there might be disagreements about how the interests of safety, reputational interests, and confidentiality should be balanced, "the FTCA does not empower judges to second guess such decisions via tort action") (quotation marks omitted); Riley, 486 F.3d at 1031-34 (affirming dismissal of a claim that the USPS negligently placed, maintained, and failed to relocate mailboxes where the two-prong Berkovitz test was satisfied, without addressing due care or negligence); Lopez, 376 F.3d at 1057-60 (affirming dismissal of a claim that the USPS negligently placed, maintained, and failed to relocate mailboxes where the two-prong Berkovitz test was satisfied, without addressing due care or negligence; noting that "the question of negligence is irrelevant to the applicability of the discretionary function exception"); Soni v. United States, 739 F. Supp. 485, 488 (E.D. Mo. 1990) (granting summary judgment in favor of the United States on the plaintiff's claim that defendants designed, erected, and constructed a stair system with unsafe railings, a poor design, and inadequate warning signs; finding the two-prong Berkovitz test satisfied and not addressing whether the United States exercised due care). Finally, Plaintiff's argument that they should be allowed further discovery in order to determine whether there are other applicable policies the Government should have followed, but did not carefully do so, is without merit.

to supervise an employee or warn about his history of sexual abuse where the two-prong Berkovitz test was satisfied, without addressing negligence or due care; noting that although there might be disagreements about how the interests of safety, reputational interests, and confidentiality should be balanced, "the FTCA does not empower judges to second guess such decisions via tort action") (quotation marks omitted); Riley, 486 F.3d at 1031-34 (affirming dismissal of a claim that the USPS negligently placed, maintained, and failed to relocate mailboxes where the two-prong Berkovitz test was satisfied, without addressing due care or negligence); Lopez, 376 F.3d at 1057-60 (affirming dismissal of a claim that the USPS negligently placed, maintained, and failed to relocate mailboxes where the two-prong Berkovitz test was satisfied, without addressing due care or negligence; noting that "the question of negligence is irrelevant to the applicability of the discretionary function exception"); Soni v. United States, 739 F. Supp. 485, 488 (E.D. Mo. 1990) (granting summary judgment in favor of the United States on the plaintiff's claim that defendants designed, erected, and constructed a stair system with unsafe railings, a poor design, and inadequate warning signs; finding the two-prong Berkovitz test satisfied and not addressing whether the United States exercised due care). The Court agrees with Defendant United States that here, as in Riley and Lopez, the discretionary function exception applies to Plaintiff's claims against the United States.

In further support of its ruling, the Eighth Circuit cited "the previous ruling by Judge Filippine in an FTCA case, holding that aesthetically-premised decisions concerning the Memorial involve policy considerations protected by the discretionary function exception." Id. at 213, citing Soni v. United States, 739 F. Supp. 485 (E.D.Mo. 1990). In the Court's view, the decisions in Chantal and Soni dictate summary judgment in the government's favor on the instant facts as well, unless plaintiffs succeed in distinguishing the cases.

The court noted that the NPS is statutorily required to preserve the "fundamental purpose of the park by [conserving] the scenery and historical object[s] . . . by such means as will leave them unimpaired for the enjoyment of future generations." Chantal, 104 F.3d at 212 (citing Soni v. United States, 739 F. Supp. 485, 487 (E.D.Mo. 1990) (quoting 16 U.S.C. § 1)). The same statutory imperative applies to the Badlands National Park.