Ninth Circuit Vacates Dismissal of Alaska FTCA Environmental Claim

Last week, the Ninth Circuit breathed new life into a Federal Tort Claims Act (FTCA) lawsuit brought against the United States by an Alaskan, who claimed toxic chemicals released from a nearby military base contaminated her property. Previously, the lower court granted the defendant’s motion to dismiss for lack of subject matter jurisdiction, finding that “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,” barred the plaintiff’s claims.

The factual allegations date back to the Cold War era when the United States Air Force built a radio relay station close to plaintiff Emily Nanouk’s 160-acre Alaska Native property, approximately 400 miles northwest of Anchorage. Nanouk has used the property “for traditional subsistence activities such as hunting, fishing, and berry-picking” since the 1960s.

The military facility was used until 1978 when it became obsolete. Thereafter, it was permanently closed, but was revisited to address and remediate environmental contamination borne from military activities conducted there.

In 2003, the plaintiff complained of a strong chemical odor on her property. The Air Force investigated and determined that soil was contaminated with “exceptionally high concentrations of PCBs (polychlorinated biphenyls)… far in excess of levels considered safe.” The investigation showed that the contamination was spread along the trail from a “hot spot” at the relay station to the front door of Nanouk’s cabin.

By 2005, environmental reclamation efforts on the plaintiff’s property had been completed, reducing the PCB contamination to a level considered safe, even for high-occupancy areas. Nanouk sued the federal government in 2015 seeking an award of monetary damages, claiming that she “no longer (felt) comfortable using her allotment for traditional subsistence activities,” and that serious health problems in her family were at least partly attributable to PCB exposure.

The panel reviewed the plaintiff’s FTCA claims de novo. She cited three specific instances where the government failed to uphold its duty under the law. The government countered that the discretionary function exception applied. According to the opinion, 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.’”

The appellate panel agreed with the lower court that the exception applied to two out of the three actions, first that during the relay station’s operation, “the Air Force failed to prevent PCBs, which are found in used transformer oil, from being dumped on the ground,” and second that, “after the station closed, the Air Force and the Army Corps essentially abandoned the site, leaving behind barrels containing PCBs and allowing their contents to leak into the soil.”

The panel concluded otherwise as to the plaintiff’s third accusation, that “once the Air Force and the Army Corps redirected their remediation efforts toward the North River Station in 1990, they failed to discover and clean up the hot spot in a timely manner.” The court found that the government failed to “identif(y) any competing policy considerations underlying the 13-year delay in discovering the hot spot and commencing removal of PCBs from the affected area.”

The court concluded that “(a)s the record stands now, it appears that once the government reached that decision in 1990, its failure to conduct the clean-up in a timely manner thereafter was ‘not the result of a policy choice,’ but ‘simply a failure to effectuate policy choices already made.’” The Ninth Circuit remanded the case for further proceedings consistent with its findings.

The plaintiff is represented by Fortier & Mikko P.C., and the defendant by the U.S. Department of Justice.