City of Lincoln v. United States
| Citation | 283 F.Supp.3d 891 |
| Decision Date | 25 September 2017 |
| Docket Number | No. 2:16–cv–1164–KJM–AC,2:16–cv–1164–KJM–AC |
| Court | U.S. District Court — Eastern District of California |
| Parties | CITY OF LINCOLN, Plaintiff, v. UNITED STATES of America; United States Department of the Air Force; United States General Services Administration ; and Does 1 Through 100, Inclusive, Defendants. |
Bruce C. Cline, City of Lincoln, Lincoln, CA, Jeffrey Thomas Orrell, William D. Brown, Brown & Winters, Cardiff By the Sea, CA, Leslie Zoena Walker, Kronick Moskovitz Tiedemann and Girard, Sacramento, CA, for Plaintiff.
Henry Thomas Miller, U.S. Dept. of Justice, Civil Division, Torts Branch, Keri Lane Berman, U.S. Department of Justice, Civil Division, Thomas J. Alford, U.S. Department of Justice, Washington DC, Mark Albert Rigau, Govt, United States Department of Justice Department of Justice, San Francisco, CA, for Defendants.
In the early 1960s, the United States Air Force constructed and operated an intercontinental ballistic missile launch facility whose refuse was taken to a nearby landfill in the City of Lincoln. The City, alleging hazardous material within the refuse contaminates underground water today, sues for costs related to this ongoing contamination. The United States now moves to dismiss the City's Federal Tort Claims Act claims for lack of subject matter jurisdiction, which the City opposes. For the reasons discussed below, the court GRANTS the motion.
Although the court finds below the dispositive issue is not intertwined with the merits, the recitation of facts here implicates substantive issues for which the court need not resolve factual disputes. See Autery v. United States , 424 F.3d 944, 956 (9th Cir. 2005) (quoting Rosales , 824 F.2d at 803 ) (where jurisdictional issues and substantive claims "intertwined," district court should employ summary judgment standard). Accordingly, the following facts are undisputed unless otherwise noted.
Since 1952, the City of Lincoln has owned, operated and maintained a six-acre landfill ("Dump") in Placer County, California. Defs.' Statement of Undisputed Facts ("SUF") 1–4, ECF No. 22–2. From in or about 1961 to 1966, the Dump operated five days per week and received mixed refuse from local businesses and approximately 1,200 residences. SUF 11, 16–18. The Dump reduced its operations starting in 1971, ceased operations in 1976 and was enclosed with a low permeability cover in 1993. SUF 22–23, 25, 32; see also Pl.'s Statement of Disputed Facts ("SDF") 91, ECF No. 25–1.
In January 1960, the Army Corps of Engineers contracted with Peter Kiewit & Sons Co. ("Kiewit") to construct three Titan I Intercontinental Ballistic Missile ("ICBM") launch facilities near Beale Air Force Base and in the cities of Lincoln, Sutter and Chico. SUF 38; Defs.' Ex. 12 (CEBMCO Historical Summary) at 13, 17, 19, ECF No. 22–15. Around this time, the United States acquired the property on which it would locate the Lincoln facility (hereinafter, "the Facility"). See SDF 3; Pl.'s Ex. 7, ECF No. 25–13 (); Pl.'s Ex. 3, ECF No. 25–9 ().
Kiewit subcontracted much of the construction to other companies, including Superior Electric Construction Co., Inc. ("Superior"), which installed electrical systems. SUF 41, 43. After completing construction in early 1962, Kiewit transferred possession and control of the facilities to Martin Company ("Martin"), which was then responsible for activating the launch facilities before delivering them to the Air Force. SUF 39, 45, 46; CEBMCO Historical Summary at 19, 34. On September 20, 1962, the Air Force accepted and took over the missile launch facilities from Martin. SUF 50.
The parties agree Superior disposed of refuse at the Lincoln City Dump, SUF 52, but dispute whether any other contractor also disposed of refuse at the Dump during this pre-operational period from January 1960 to September 1962. See id. The parties also dispute whether defendants' employees, including Army Corps of Engineer's Resident Office employees, Lincoln facility site inspectors and other Air Force personnel, disposed of refuse. See SDF 94.
Once the Air Force took over the Facility in September 1962, the Air Force issued a plan for the Facility's routine daily maintenance. SUF 59; Defs.' Ex. 23 (Maintenance Plan), ECF No. 22–26. The Maintenance Plan gave Base Deputy Commander for Civil Engineering ("Base Deputy") responsibility for collecting and disposing of refuse from the Facility. SUF 61; Maintenance Plan at 42 ¶ 2(i). The Plan also established guidelines for collecting and disposing refuse. Maintenance Plan at 57 (Refuse Collection and Disposal Plan) ¶¶ (a)–(f).
Starting in September 1962, the City began collecting thirty-three-gallon cans of refuse from the Facility three times per week. SUF 65–67. The parties dispute the contents of this refuse and whether the contents were hazardous. See SUF 70–71; SDF 105–07; Pl.'s Objs. 2–4; Pasilla Dep. at 150:21–23. The City continued to collect the facility's refuse until at least January 1965, when the Air Force began deactivating the missiles and shutting down the Facility. SUF 73–76. As part of that process, Beale Air Force Base took over the Facility in Spring 1965, the Department of Defense sold the Facility's equipment and materials to the Hudson Company ("Hudson") in February 1966, and the United States transferred the property to Placer County in August 1968. SUF 76–90.
In 1991 and 2003, respectively, the California Regional Water Quality Control Board ("the RWQCB") issued a Waste Discharge Requirements ("WDR") order and then a revised order for the Dump. SUF 31; Defs.' Ex. 11 (RWQCB Order No. R5–2003–0142) at 1 ¶ 4, ECF No. 22–14. The revised order required the City to maintain five feet of separation between groundwater and the bottom of the landfill, and to define how much of the groundwater contained total dissolved solids ("TDS") and volatile organic compounds ("VOC"). SUF 34. In 2013, the RWQCB found the City had violated the revised order, that release from the Dump affected nearby groundwater quality, and that the City Dump failed to ensure the required five foot separation. SUF 35; Defs.' Ex. 5 (RWQCB Order R5–2014–0703) at 2–4, ECF No. 22–8. The RWQCB required the City to develop a Corrective Action Plan ("CAP") to maintain the minimum five foot separation, remediate groundwater impacts and maintain the landfill cover. SUF 37; RWQCB Order R5–2014–0703 at 7 ¶¶ 31–33.
On May 26, 2016, the City sued the United States, the United States Air Force and the United States General Services Administration for (1) Continuing Nuisance; (2) Continuing Trespass; (3) Equitable Indemnity / Contribution; (4) Cost Recovery under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a) ; (5) Contribution under CERCLA, 42 U.S.C. § 9613 ; and (6) Declaratory Relief. Compl., ECF No. 1. The City's first two claims proceed only on a theory of continuing trespass and nuisance, not permanent trespass or nuisance. See ECF Nos. 18, 11 ().
On May 22, 2017, the United States filed the instant motion to dismiss the Federal Tort Claims Act claims, claims 1 to 3, for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Notice of Mot., ECF No. 22; Mem. P. & A., ECF No. 22–1. The City opposed. Opp'n, ECF No. 25. The United States filed a reply. Reply, ECF No. 29. The court held a hearing on August 25, 2017, at which Keri Berman and Mark Rigau appeared for the United States and Jeff Orrell appeared for the City. ECF No. 30. With the court's permission, the United States filed a supplemental brief regarding the discretionary function exception discussed below, Sur–Reply, ECF No. 32, and the City responded, Response, ECF No. 35.
A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). Here, defendants' attack is factual because they rely on extrinsic evidence to challenge the complaint's allegations, including the City's allegation that defendants released hazardous substances into the Dump. See Edison v. United States , 822 F.3d 510, 517 (9th Cir. 2016) (); Morrison v. Amway Corp. , 323 F.3d 920, 924 n.5 (11th Cir. 2003) (cited in Safe Air for Everyone , 373 F.3d at 1039 ) (jurisdictional challenge was a factual attack where it "relied on extrinsic evidence and did not assert lack of subject matter jurisdiction solely on the basis of the pleadings").
How a court reviews a factual attack depends on whether the jurisdictional and merits issues intertwine. "Ordinarily, where a jurisdictional issue is separable from the merits of a case, the court may determine jurisdiction by the standards of a Rule 12(b)(1) motion to dismiss for lack of jurisdiction." Roberts v. Corrothers , 812 F.2d 1173, 1177 (9th Cir. 1987). In such circumstances, a court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony,...
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