Lhotka v. U.S.

• Citation: 114 F.3d 751
• Decision Date: 30 May 1997
• Docket Number: No. 96-3299,96-3299
• Parties: 27 Envtl. L. Rep. 21,327 Myron D. LHOTKA, Darlene Lhotka, and Elroy Hanson, Receiver for the Myron Lhotka and Darlene Lhotka Receivership, Appellants, v. UNITED STATES of America and United States Fish and Wildlife Service, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 751

114 F.3d 751

27 Envtl. L. Rep. 21,327

Myron D. LHOTKA, Darlene Lhotka, and Elroy Hanson, Receiver

for the Myron Lhotka and Darlene Lhotka

Receivership, Appellants, v. UNITED STATES of America and United States Fish and Wildlife

Service, Appellees.

No. 96-3299.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1997.

Decided May 30, 1997.

Zenas Baer, Hawley, Minnesota, argued, (James M. Clay, Minneapolis, Minnesota, on the brief), for appellant.

Lonnie Bryan, United States Attorney, Minneapolis, Minnesota, argued, for appellee.

Before MAGILL, ¹ MURPHY, Circuit Judges, and GOLDBERG, ² Judge.

GOLDBERG, Judge.

Appellants Myron Lhotka, Darlene Lhotka, and Elroy Hanson ³ ("Lhotkas") appeal the district court's grant of summary judgment in favor of the United States Fish and Wildlife Service, dismissing their state law tort claims of trespass and nuisance. The district court granted summary judgment because it determined (1) that the Lhotkas' claims were time-barred under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401(b) (1988), and (2) that the Lhotkas' claims failed to state a prima facie case of either trespass or nuisance under Minnesota state law.

Because we find that the issue of when the Lhotkas' claims accrued involves factual questions beyond the scope of summary judgment, and that the Lhotkas' claims state a prima facie case of trespass and nuisance, we respectfully reverse and remand the districts court's order.

I.

We review the district court's grant of summary judgment de novo. Kiemele v. Soo Line Railroad Co., 93 F.3d 472, 474 (8th Cir.1996). A movant is entitled to summary judgment only upon a showing that there is no genuine issue of material fact, and that the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In applying this standard, we view all facts in the light most favorable to the nonmoving party, and draw all inferences in the nonmoving party's favor. Kiemele, 93 F.3d at 474.

II.

In 1964, the Lhotkas sold a perpetual easement on their farm in Mahnomen County, Minnesota to the United States for $2700. The easement grants the Fish and Wildlife Service a right of access to maintain the wetlands on the Lhotkas' farm as they existed on June 1, 1964. It also allows the Lhotkas to continue farming the wetlands when they are dry due to natural causes. Since it's creation, the easement has been the source of both tension and litigation between the Lhotkas and the Fish and Wildlife Service, including the present case.

This case arises out of a 1990 district court order obtained by the Fish and Wildlife Service compelling the Lhotkas to restore the wetlands to their 1964 conditions. After the Lhotkas failed to comply with the order, the Fish and Wildlife Service responded by restoring the wetlands itself by constructing a series of six-inch dikes on the Lhotkas' farm. This work was completed between October 5 and October 14, 1992.

On September 30, 1995, the Lhotkas filed the instant action in the United States District Court of Minnesota. They argue that the Fish and Wildlife Service exceeded the scope of the easement when it constructed the dikes because the dikes caused rain water to remain impounded on their property for a longer period of time than it had in previous years, giving rise to an injury for both trespass and nuisance. The Fish and Wildlife Service moved for summary judgment. For purposes of summary judgment only, the Fish and Wildlife Service have stipulated that the dikes exceed the 1964 conditions of the Lhotkas' farm. Tr. Oral Arg., June 21, 1996, at 6.

The district court granted the Fish and Wildlife Service's motion for summary judgment on two independent grounds. First, it held that the Lhotkas' claims were time-barred under 28 U.S.C. § 2401(b) because the Lhotkas failed to bring suit within two years after the Fish and Wildlife Service completed their construction of the dikes. Second, and in the alternative, the district court held that the Lhotkas failed to state a prima facie case of trespass and nuisance under Minnesota state law because the Fish and Wildlife Service constructed the dikes pursuant to a court order. Hence, its entry was lawful. Tr. Oral Arg., June 21, 1996, at 18-19.

The Lhotkas appeal. They argue that the statute of limitations period began to run not when the Fish and Wildlife Service completed the dikes in October 1992, but when the dikes caused abnormal levels of flooding in October 1993. They further argue that the district court misapprehended the nature of their trespass and nuisance claims. The Lhotkas contend that whether the Fish and Wildlife Service lawfully entered their property is irrelevant because it was not the entry, but the flooding in excess of 1964 levels that constituted trespass and nuisance. For the following reasons, we respectfully reverse and remand the decision of the district court.

III.

Under the FTCA, a state law tort claim against the United States is time-barred unless it is filed within two years "after such claim accrues." 28 U.S.C. § 2401(b). In United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979), the Supreme Court held that under the FTCA, a claim accrues when the plaintiff discovers both the injury and its cause. We have interpreted this to mean that the claim accrues when the plaintiff "knows or reasonably should know both the existence and cause of the injury." Slaaten v. United States, 990 F.2d 1038, 1041 (8th Cir.1993). Thus, in the present case, the Lhotkas had two years to file a claim from the time that they actually knew, or should have reasonably known, (1) that a trespass and nuisance occurred and (2) that the Fish and Wildlife Service's restoration work caused them. We examine each element in turn.

With respect to the first element, the Fish and Wildlife Service contends that the Lhotkas should have reasonably known of the injury when the restoration project was completed. Yet, the Fish and Wildlife Service ignores two crucial facts. First, under the theory of trespass and nuisance asserted by the Lhotkas, outward signs of any tort remained hidden until the rainy season began, and water remained impounded on the property beyond the period of time in which it normally would have dissipated. It is undisputed that the Lhotkas' property was dry when the Fish and Wildlife Service completed its work on October 14, 1992, and that there was insubstantial rainfall until the spring and summer of 1993. As a result, the Lhotkas could not have had actual knowledge of these claims until after the summer of 1993.

Second, the Lhotkas could not have assessed the latent water damage because they lacked the technical expertise to evaluate the work completed by the Fish and Wildlife Service and how it would affect the duration of seasonal flooding. The Lhotkas are neither engineers nor hydrologists. Therefore, for purposes of summary judgment, the district court could not legally determine that the Lhotkas knew, or...