Baker

MEMORANDUM *

Plaintiffs appeal the district court’s grant of defendant’s motion to dismiss their negligence claim under the Federal Tort Claims Act (“FTCA”) for lack of sub *304 ject matter jurisdiction. The facts and proceedings are familiar to the parties.

A determination of whether the discretionary function exception to the FTCA applies is reviewed de novo. See McGraw v. United States, 281 F.3d 997, 1001 (9th Cir.2002), amended by 298 F.3d 754 (9th Cir.2002). The court’s factual findings relevant to its determination of subject matter jurisdiction are reviewed for clear error. See United States v. Peninsula Communications, Inc., 287 F.3d 832, 836 (9th Cir.2002). All uncontroverted factual assertions regarding jurisdiction are taken as true, while all contested assertions must be construed in favor of the plaintiff. See McGraw, 281 F.3d at 1001 .

To consider whether the action taken by the San Carlos Irrigation Project District — or not taken, as is the case here — is a matter of choice, the court must look to the regulations governing Native American electric power utilities, 25 C.F.R. Part 175 §§ 175.1 to 175.62 (1997). These regulations state that a utility shall…