The federal government cannot be liable for its failure to post warning signs near an abandoned mine shaft that killed a motorist, the U.S. Court of Appeals for the 10th Circuit ruled on Friday. The court implied that such safety precautions in national forest land would negatively affect the “beauty.”

“[P]osting the number of warning signs that would evidently be required could not help but detract from the scenic beauty of the Forest, making it a far less attractive place to try to ‘get away from it all,'” wrote Judge Harris L. Hartz for the three-member panel. He added in his opinion that the “good sense” of motorists not to crash was a sufficient remedy.

The National Forest System’s Region 2 encompasses parts of five states, and includes Arapaho and Roosevelt National Forests and Pawnee National Grassland. The region contains 11,500 elements of abandoned mines. In the early morning hours of June 12, 2016, Sarah Ball drove off of U.S. Forest Service Road 456.1A west of Gold Hill and fell into one of the abandoned mine shafts a short distance away. Ball died from the crash.

Road 456.1A was at “Maintenance Level 2,” meaning that, according to the Forest Service Handbook, “Motorists should have no expectations of being alerted to potential hazards while driving these roads.” A visitor map the agency produced also warned that off-highway vehicle use carried an elevated possibility of injury and death.

Between 2013 and 2017, the Forest Service could only maintain on average 122 of the nearly 2,000 miles of road within the forests. Road 456.1A was not slated for any repairs at all. While Congress in 1998 began to assign funding to mitigate safety hazards of abandoned mines, such projects are among the many priorities of the Forest Service. An environmental review must also take place before work begins. Between 2008 and 2016, only 85 of the Region 2 mines underwent hazard mitigation – 0.7% of the total.

Ball’s parents and estate sued the U.S. government, but a federal district court judge dismissed the matter, finding that the government had sovereign immunity. The law allows individuals to bring legal action against the government for negligence resulting in wrongful injury or death; however, there is an exception to the liability. If there was a discretionary action on the part of the government that involved public policy considerations, the government has immunity in civil court.

The plaintiffs alleged that the fork in the road near where Ball died should have had warning signs or barriers to prevent vehicles from driving into the open shaft. The three-member appeals panel explored whether there was any law, regulation or policy that compelled the Forest Service to do anything about the danger. They decided in the negative.

Plaintiffs further argued that the government “failed to provide evidence showing that the Forest Service’s decision not to warn or otherwise protect against the hazard posed by the Mine Shaft and Road 456.1A was grounded in policy considerations,” wrote Hartz. “But this contention is misguided in at least two respects.”

He explained that there need not have been proof the government thought through whether to erect signage to prove a “policy consideration.” The inclusion or exclusion of warning signs is “susceptible to the types of policy analysis protected by the discretionary-function exception – even if not spelled out,” Hartz wrote.

The appellate judges justified the Forest Service’s inaction by deeming it financially unrealistic for the agency to protect motorists from similar mine shafts along all 1,987 miles of road in the region.

“The impact on the Forest Service budget would be significant, requiring reordering of priorities from other activities,” Hartz added. Instead, “the Forest Service could decide that adequate protection is afforded by the warnings provided by the Motor Vehicle Use Map, its existing road-maintenance and mine-closure policies and projects, and the good sense of motorists in the Forest.”

The panel concluded that to assign liability to the government for remediating this one mine shaft would create an obligation to fix scores of other hazards. The judges declined to engage in “judicial second-guessing” and dismissed the lawsuit.

The 10th Circuit panel was not the only one to grant governmental immunity for a death on public land. A 1993 decision out of the 11th Circuit based in Atlanta shielded the government for a tree that fell onto a car and killed the driver in Great Smoky Mountains National Park. The court in that case found that “the decisions made by GSMNP personnel in designing and implementing its unwritten tree inspection program fall within the ambit of the discretionary function exception.”

Randall M. Weiner, the attorney for the plaintiffs in the Ball case, said on Monday that the issue of governmental immunity “is an important one for society.” He added that he and his clients are discussing other possible legal avenues, including an appeal of the decision to the entire 10th Circuit.

The case is Logan Ball et al. v. United States of America.