David C. Schutter, Richard A. Marshall, Honolulu, Hawaii, for plaintiffs-appellants.

Michael Schatzow, Mark J. Bennett, Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before BROWNING, WRIGHT and WALLACE, Circuit Judges.

PER CURIAM:

This is a negligence action against the United States for injuries the minor plaintiff sustained diving into a natural pool in Haleakala National Park. The district court dismissed the complaint with leave to amend within 60 days, reasoning that Hawaii's recreational land use law precluded relief for simple negligence. See Hawaii Rev.Stat. Secs. 520-2(1), -3.

The appealed order, which dismissed the complaint but not the action, is not final and appealable unless special circumstances demonstrate that the trial court found plaintiffs could not save the action by any amendment of the complaint they could reasonably be expected to make. California v. Harvier, 700 F.2d 1217, at 1218 (9th Cir.1983).

Here, plaintiffs argued below that they could state a claim for willful or malicious failure to guard or warn. See Hawaii Rev.Stat. Sec. 520-5(1). They could have saved their action by amending the complaint to make this claim explicit. It is immaterial that plaintiffs decided not to amend. The district court was not advised of that decision and no final judgment was entered.

As the exception to the rule of nonappealability was not satisfied, the order was not appealable. The appeal is dismissed.