Nanouk v. United States

• Decision Date: 04 September 2020
• Docket Number: No. 19-35116,19-35116
• Citation: 974 F.3d 941
• Parties: Emily NANOUK, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

974 F.3d 941

Emily NANOUK, Plaintiff-Appellant,

v.UNITED STATES of America, Defendant-Appellee.

No. 19-35116

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2020 Anchorage, Alaska

Filed September 4, 2020

Samuel J. Fortier (argued) and Naomi Palosaari, Fortier & Mikko P.C., Anchorage, Alaska, for Plaintiff-Appellant.

Albert K. Lai (argued), Trial Attorney; Bridget B. Lipscomb, Assistant Director; J. Patrick Glynn, Director; Thomas G. Ward, Deputy Assistant Attorney General; Joseph H. Hunt, Assistant Attorney General; Environmental Torts, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

Before: Morgan Christen, Paul J. Watford, and Bridget S. Bade, Circuit Judges.

WATFORD, Circuit Judge:

This is a suit brought by Emily Nanouk against the United States under the Federal Tort Claims Act (FTCA). She alleges that her property has been contaminated by hazardous chemicals negligently released from the site of a nearby military facility. The district court dismissed Nanouk's suit for lack of subject matter jurisdiction after determining that her claims are barred by the FTCA's discretionary function exception, a provision that precludes jurisdiction when the plaintiff's claims are based on certain discretionary acts of government employees. We agree with the district court that the discretionary function exception bars Nanouk's claims to the extent they are predicated on two of the three acts she challenges as negligent. But on the record before us, the government has not established that the exception bars Nanouk's claims in their entirety. We therefore vacate the judgment dismissing Nanouk's case and remand for further proceedings.

I

Nanouk's property is a 160-acre Alaska Native allotment near the village of Unalakleet, a small community on Norton Sound roughly 400 miles northwest of Anchorage. Since the 1960s, Nanouk has used the property for traditional subsistence activities such as hunting, fishing, and berry-picking. In the 1980s, Nanouk built a small cabin on her property, which she and her family reached by traveling down a trail that runs from the main road through the site of a former United States Air Force facility known as the North River Radio Relay Station. The station was part of the White Alice Communications System, a network of 70 radio relay sites built during the Cold War to enable early warning of potential Soviet air attacks on the continental United States. By the 1970s, satellite technology had rendered the White Alice system obsolete, leading the Air Force to shut the network down. The North River Station closed in 1978, and the Air Force has not used the site since then.

In the first few years after the North River Station closed, the Air Force did little to monitor the condition of the unmanned site, other than receiving reports from a caretaker sent out to inspect the property on a weekly basis. In 1981, the General Accounting Office issued a report that criticized the Air Force's failure to protect and maintain a number of the shuttered White Alice sites, including the North River Station. The report noted that the sites still contained hazardous chemicals, such as highly toxic polychlorinated biphenyls (PCBs), which could result in environmental contamination or personal injury if not removed. The report prompted the Air Force, with the help of the Army Corps of Engineers, to begin the process of remediating contamination at the North River Station. In 1982, for example, the Army Corps removed 500 gallons of transformer oil containing PCBs from the North River site, and in 1984 it removed some of the PCB-contaminated soil from the site. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained at the site.

While the Air Force and the Army Corps directed most of their remediation efforts toward other radio relay sites during the 1980s, they turned their attention back to the North River Station in 1990. In 1993, an Army Corps contractor removed some contaminated soil from the station but went out of business before it could finish the remediation. A different contractor then took over in 1995, but also went out of business before completing the job. The Air Force and the Army Corps subsequently released a new action plan for environmental remediation at the North River Station in 2001, and clean-up activities resumed shortly thereafter.

No one knows exactly when, but sometime between the early 1980s and 2003, PCBs migrated from the North River Station onto Nanouk's allotment. The migration occurred because the trail that Nanouk and her family used to access her cabin ran directly through a "hot spot" of PCB-contaminated soil on the North River Station grounds. The vehicles used by Nanouk and her family picked up the PCBs and carried them from the station to Nanouk's allotment, thereby contaminating the soil around her cabin.

Nanouk did not learn about the presence of PCBs on her property until 2003. In July of that year, she informed the Air Force that an area along the trail was marked by a strong chemical odor. The Air Force investigated and found that the soil in the area contained exceptionally high concentrations of PCBs (over 40,000 parts per million), far in excess of levels considered safe. Further testing revealed that PCBs had been spread along the trail from the hot spot to the doorstep of Nanouk's cabin.

The Air Force thereafter undertook extensive environmental remediation to remove PCB-contaminated soil from both the North River Station and Nanouk's allotment. By 2005, the remediation efforts on Nanouk's allotment were complete, as they had reduced PCB contamination to less than one part per million, the level environmental authorities regard as safe even for high-occupancy areas. See 40 C.F.R. § 761.61(a)(4)(i)(A). In 2013, Nanouk requested further testing of the soil around her cabin. Those tests confirmed that PCBs, although still present, remained at levels below one part per million.

Nanouk sued the United States in 2015, alleging claims for trespass and nuisance and seeking an award of money damages. Despite assurances from federal and state authorities that her property is safe to use, Nanouk no longer feels comfortable using her allotment for traditional subsistence activities. She and several family members have experienced serious health problems over the years, and Nanouk believes those ailments are attributable at least in part to exposure to PCBs.

After the parties completed discovery, the government filed a motion to dismiss Nanouk's suit for lack of subject matter jurisdiction on the ground that the discretionary function exception bars Nanouk's claims. The district court agreed and dismissed Nanouk's action.¹

On appeal, Nanouk challenges the district court's conclusion that her claims are barred by the discretionary function exception, a ruling we review de novo . Gonzalez v. United States , 814 F.3d 1022, 1028 n.2 (9th Cir. 2016).

II

The FTCA waives the United States’ sovereign immunity for claims seeking money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) ; see also § 2674. The Act defines the term "employee of the Government" to include employees of the military departments but to exclude employees of independent contractors. § 2671.

The FTCA's broad waiver of sovereign immunity is subject to a number of exceptions, including the discretionary function exception at issue here. That exception preserves the United States’ immunity from suit as to any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." § 2680(a). The government bears the burden of establishing that the exception applies. Chadd v. United States , 794 F.3d 1104, 1108 (9th Cir. 2015).

We employ a two-step test to determine whether the discretionary function exception is applicable. Under the first step, we ask whether the act or omission on which the plaintiff's claim is based was discretionary in nature—that is, whether it "involve[d] an element of judgment or choice." Berkovitz v. United States , 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). If the act did not involve an element of judgment or choice, the analysis ends there and the plaintiff's claim may proceed. For "if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect." Id.

If the employee's conduct involved an element of judgment or choice, we turn to the second step of the analysis, which asks whether the discretionary decision challenged by the plaintiff "is of the kind that the discretionary function exception was designed to shield." Id. Congress sought to preclude courts from second guessing discretionary judgments "grounded in social, economic, and political policy." United States v. Varig Airlines , 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The government accordingly prevails at step two if it can show that the decision challenged by the plaintiff is "susceptible to policy analysis." United States v. Gaubert , 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).

III

Before we can apply the two-step test, we must identify which specific actions or omissions the plaintiff alleges were negligent or wrongful. Young v. United States , 769 F.3d 1047, 1053 (9th Cir. 2014). Nanouk predicates her claims on three distinct actions—or, as she describes them in her...