Emily Nanouk v. United States ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILY NANOUK, No. 19-35116
Plaintiff-Appellant,
D.C. No.
v. 3:15-cv-00221-RRB
UNITED STATES OF AMERICA,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted June 4, 2020
Anchorage, Alaska
Filed September 4, 2020
Before: Morgan Christen, Paul J. Watford, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Watford
2 NANOUK V. UNITED STATES
SUMMARY *
Federal Tort Claims Act
The panel vacated the district court’s dismissal of a
Federal Tort Claims Act (“FTCA”) action brought against
the United States by a plaintiff who alleged that her property
was contaminated by hazardous chemicals negligently
released from the site of a nearby military facility.
The district court dismissed for lack of subject matter
jurisdiction after determining that the claims were 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.
The panel agreed with the district court that the
discretionary exception barred plaintiff’s claims to the extent
they were predicated on two of the three acts she challenged
as negligent. The panel held further, however, that the
government had not established that the exception barred
plaintiff’s claims in their entirety.
Specifically, the panel held that the discretionary
function exception protected the government’s alleged
failure to supervise contractors during the military facility’s
operation, as well as its abandonment of the property
between the facility’s closure in 1978 and 1990. Based on
the current record, the panel could not conclude that the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NANOUK V. UNITED STATES 3
discretionary function also applied to the government’s
failure to identify and remediate the hot spot in a timely
manner after 1990. The panel remanded for further
proceedings.
COUNSEL
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.
OPINION
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
4 NANOUK V. UNITED STATES
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
NANOUK V. UNITED STATES 5
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
6 NANOUK V. UNITED STATES
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
NANOUK V. UNITED STATES 7
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
1
In its motion to dismiss, the government invoked what it
characterized as three FTCA jurisdictional provisions: the discretionary
function exception, the FTCA’s “exclusion” of liability for the acts of
independent contractors, and the Act’s “exclusion” of liability on the
basis of strict liability. On appeal, the government argues that the district
court relied on all three provisions. But Nanouk’s claims were not
predicated upon vicarious liability for the acts of independent
contractors, nor were they based on strict liability. Thus we do not read
the district court’s order as referring to these theories.
8 NANOUK V. UNITED STATES
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 (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 (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 (1991).
NANOUK V. UNITED STATES 9
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
briefs, governmental “failures”—that she alleges created the
hot spot and led to the contamination of her property. First,
she contends that during the period of the North River
Station’s operation (1957–1978), the Air Force failed to
prevent PCBs, which are found in used transformer oil, from
being dumped on the ground. Second, she asserts 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. Third, she argues 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.
As explained below, we agree with the district court that
the discretionary function exception bars liability predicated
on the first two actions. But at this stage of the proceedings,
the government has not established that the exception bars
liability predicated on the last of the challenged actions.
A. Disposal of PCBs During the Station’s Operation
We begin with Nanouk’s contention that the Air Force
negligently permitted used transformer oil containing PCBs
to be dumped on the ground. One threshold problem with
this theory of liability is that the employees who dumped
PCBs on the ground were not employees of the government.
The Air Force hired private contractors to operate and
maintain the North River Station and delegated to them
10 NANOUK V. UNITED STATES
responsibility for disposing of hazardous wastes such as
PCBs. Nanouk does not allege that the contractors’
employees can be considered employees of the government
under the FTCA, so she cannot predicate her claims on the
contractors’ alleged negligence in dumping PCBs on the
ground. See Logue v. United States, 412 U.S. 521, 527–28
(1973). Nanouk instead bases her claims, as she must, on
the alleged negligence of Air Force personnel in supervising
the contractors—in particular, on their failure to detect and
stop the contractors’ environmentally harmful disposal
practices.
At the first step of the analysis, we conclude that the
challenged conduct was discretionary in nature. The
Supreme Court has held that discretion is absent “when a
federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow.” Berkovitz,
486 U.S. at 536. Put differently, to be classified as non-
discretionary, the employee’s conduct must be governed by
a statute, regulation, or policy “directing mandatory and
specific action,” Terbush v. United States, 516 F.3d 1125,
1129 (9th Cir. 2008), which leaves the employee “no rightful
option but to adhere to the directive,” Berkovitz, 486 U.S.
at 536. In this case, no controlling statute, regulation, or
policy specifically prescribed how Air Force personnel were
to supervise a contractor’s waste disposal practices, much
less required Air Force personnel to halt a contractor’s
dumping of PCBs on the ground. The absence of a
mandatory and specific directive of that sort precludes
Nanouk from prevailing at step one in the context of a
negligent supervision claim. See Alinsky v. United States,
415 F.3d 639, 647 (7th Cir. 2005); Bibeau v. Pacific
Northwest Research Foundation, Inc., 339 F.3d 942, 945–46
(9th Cir. 2003) (per curiam); Kirchmann v. United States,
8 F.3d 1273, 1276 (8th Cir. 1993).
NANOUK V. UNITED STATES 11
Nanouk’s best support for the existence of a mandatory
and specific directive is Air Force Regulation 19-1, but that
regulation merely established general policies and programs
relating to environmental protection. It did not require the
Air Force to prohibit independent contractors from dumping
PCBs on the ground. As relevant here, the most specific of
the regulation’s directives required the Air Force to “[m]ake
all practical efforts” to “[d]ispose of or discharge pollutants
in a manner that will not . . . expose people to concentrations
of any agent (chemical, physical, or biological) hazardous to
health.”
There are two reasons why this provision did not
mandate that Air Force personnel stop contractors from
dumping PCBs on the ground. First, during the period of the
North River Station’s operation, there were no regulations
governing the use and disposal of PCBs; such regulations did
not take effect until after the station closed. See 43 Fed. Reg.
7150 (Feb. 17, 1978); 44 Fed. Reg. 31514 (May 31, 1979).
Second, even if dumping PCBs on the ground had been
known to pose health hazards, the provision at issue here
required only that Air Force personnel “[m]ake all practical
efforts” to avoid exposing people to chemicals that could be
hazardous to health. That qualifier necessarily left Air Force
personnel with discretion to decide whether complying with
the directive was feasible under the circumstances at hand.
See Aragon v. United States, 146 F.3d 819, 824 (10th Cir.
1998) (the phrase “as may be practicable” conferred
discretion at step one); Cope v. Scott, 45 F.3d 445, 450 (D.C.
Cir. 1995) (same for the phrase “to the extent practicable”);
see also Gonzalez, 814 F.3d at 1030 (the phrase “whenever
feasible” conferred discretion at step one).
Turning to the second step of the analysis, we conclude
that deciding how closely Air Force personnel would
12 NANOUK V. UNITED STATES
supervise the contractors’ waste disposal practices “involved
the kind of policy judgment that the discretionary function
exception was designed to shield.” Gaubert, 499 U.S.
at 332. Nanouk faults the Air Force for failing to conduct
more rigorous inspections of the contractors’ operations, but
any attempt to find the Air Force negligent based on the level
of oversight it exercised would require a court to second
guess judgments that are “susceptible to policy analysis.” Id.
at 325. The Air Force decided from the outset that, given
manpower constraints, it could not operate the White Alice
system itself, so it hired contractors to maintain and operate
all 70 sites “with the minimum governmental support.” That
judgment obviously influenced how closely Air Force
personnel could monitor the contractors’ waste disposal
practices. The Air Force decided to rely on the contractors’
presumed competence in operating the radio relay stations,
subject to limited oversight that did not include policing the
manner in which contractors disposed of PCBs. Courts have
held that similar policy judgments concerning the level of
oversight to be exercised over government contractors are
protected by the discretionary function exception. See, e.g.,
Varig Airlines, 467 U.S. at 815–16, 819–20; Kirchmann,
8 F.3d at 1277–78. 2
2
This case differs from Camozzi v. Roland/Miller & Hope
Consulting Group, 866 F.2d 287 (9th Cir. 1989), on which Nanouk
relies. There the government retained responsibility for overseeing the
contractor’s compliance with safety precautions, including responsibility
for conducting daily inspections of any floor openings at the work site
(the hazard that caused the plaintiffs’ injuries). Id. at 288–89. “Failure
to inspect floors for uncovered and unguarded openings,” we held, “was
not the result of a policy choice by the particular employees or agents
involved. It was simply a failure to effectuate policy choices already
made and incorporated in the contracts.” Id. at 290.
NANOUK V. UNITED STATES 13
B. Abandonment of the North River Station
We consider next the government’s alleged negligence
between 1978, when the North River Station closed, and
1990, when the Air Force and the Army Corps focused their
remediation efforts on the station. Nanouk alleges that after
the station’s closure, the Air Force essentially abandoned the
property, leaving barrels containing PCBs exposed to
vandalism and the elements, which allowed the barrels’
contents to leak into the soil in the area that later became the
hot spot. Although the Air Force and the Army Corps
conducted some remediation efforts in the 1980s, Nanouk
faults the government for not moving more quickly to secure
the barrels, remove them from the site, and clean up the
contamination they left behind.
At the first step of the analysis, we again find no
mandatory and specific directive governing the
government’s actions. As the source of such a directive,
Nanouk cites a provision of the Federal Property
Management Regulations addressing the management of
surplus real property held by federal agencies. 3 The
provision in effect in the 1980s stated in relevant part: “The
holding agency shall retain custody and accountability for
excess and surplus real property including related personal
property and shall perform the physical care, handling,
protection, maintenance, and repairs of such property
pending its transfer to another Federal agency or its
3
For the first time in her reply brief, Nanouk also cites in passing
§ 6(e)(2)(A) of the Toxic Substances Control Act of 1976, which
addresses the regulation of PCBs. See 15 U.S.C. § 2605(e)(2)(A).
However, she fails to develop any argument explaining why that
provision qualifies as a mandatory and specific directive relevant here.
We therefore deem any such argument forfeited and express no view on
the issue.
14 NANOUK V. UNITED STATES
disposal.” 41 C.F.R. § 101-47.402-1 (1980). This provision
appeared in a set of regulations designed to protect the
government’s interest in real property that was no longer
needed for its original use, with the aim of ensuring that the
government could transfer the property to another federal
agency for use, donate the property to a state or local agency,
or sell the property and realize its value. See generally
Utilization and Disposal of Real Property, 41 C.F.R. Part
101-47 (1980). The provision Nanouk cites did not require
the Air Force or the Army Corps to prevent barrels
containing PCBs from leaking, remove the barrels from the
North River Station, or clean up contamination caused by the
barrels within a specified timeframe.
At the second step of the analysis, we think the
government is entitled to prevail as well. Nanouk faults the
Air Force and the Army Corps for their delay in addressing
what turned out to be serious environmental contamination
at the North River Station. But the decisions she challenges
as negligent were “based on considerations of public
policy.” Berkovitz, 486 U.S. at 537.
When the Air Force decided to shut down the White
Alice Communications System in the 1970s, it had to deal
with the closure of dozens of other radio relay stations during
the same time period. Faced with limited resources to
address environmental contamination at each of those sites,
the Air Force decided to conduct remediation on a “worst
first” basis, with sites posing graver risks of imminent harm
given a higher priority than those posing less serious risks.
That decision was dictated by a military-wide policy adopted
by the Department of Defense, described as follows:
“Because of the large number of sites DoD-wide and
extensive investigations and planning that precede cleanup,
it is not technically or economically feasible to undertake
NANOUK V. UNITED STATES 15
remedial actions at all sites simultaneously. . . . DoD policy
is to remediate those sites which pose the greatest potential
for damage first.” 54 Fed. Reg. 43104 (Oct. 20, 1989).
Established in 1983, this policy was known as the Defense
Environmental Restoration Program (DERP).
In essence, the military adopted a triage system for
addressing a large number of simultaneous demands on
finite resources, a policy judgment that necessarily involved
the weighing of competing social, economic, and political
considerations. As part of this complex calculus, the
military had to decide which individuals or communities
would be left at risk of environmental harm that could have
been avoided in order to avert greater harm elsewhere. That
is the kind of policy judgment protected by the discretionary
function exception. See Cope, 45 F.3d at 450; Baum v.
United States, 986 F.2d 716, 722 (4th Cir. 1993).
Records are poor for the period during which the
government allegedly abandoned the property, but they are
consistent with the government’s efforts to prioritize clean-
up at the various former White Alice sites. Between 1978
and 1982, the government sent a caretaker to inspect the
North River site on a weekly basis. Between 1983 and 1985,
the Air Force undertook an initial clean-up of the site and
removed 500 gallons of PCB-containing transformer oil and
PCB-contaminated electrical transformers. While there is
little evidence of any activity between 1985 and 1990, the
site was surveyed in 1987, and in 1989 the government hired
a contractor to visit the site and inspect the soil. This work
revealed that 6,700 cubic yards of contaminated soil
remained. When the government turned its attention back to
the site in 1990, the site received a “low priority” ranking in
the DERP program. This record suggests that the
government’s failure to act more quickly to remediate
16 NANOUK V. UNITED STATES
environmental contamination at the North River Station was
attributable to the military’s policy judgment to direct its
limited resources to sites posing more urgent demands for
remediation.
The cases on which Nanouk relies are distinguishable.
In each of them, we held that the government could not
invoke the discretionary function exception by citing
budgetary constraints as the sole reason for its failure to
perform routine maintenance or to take routine safety
precautions. See, e.g., Bolt v. United States, 509 F.3d 1028,
1034 (9th Cir. 2007) (failure to remove snow and ice in a
parking lot, on which plaintiff slipped and fell); Whisnant v.
United States, 400 F.3d 1177, 1183–84 (9th Cir. 2005)
(failure to remove toxic mold from the commissary in which
plaintiff worked); O’Toole v. United States, 295 F.3d 1029,
1036–37 (9th Cir. 2002) (failure to conduct routine
maintenance of irrigation ditch, resulting in flooding of
plaintiffs’ land). As we stated in O’Toole, “inadequate
funding alone” cannot be sufficient to trigger the
discretionary function exception, 295 F.3d at 1037, for
otherwise the government could always insulate itself from
liability for run-of-the-mill negligence simply by asserting
that it chose “to spend its limited funds in other ways,” id.
at 1036.
The key factor in identifying judgments that are
protected by the discretionary function exception is the
presence of “competing policy considerations” that must be
weighed. Morales v. United States, 895 F.3d 708, 715 (9th
Cir. 2018); Bibeau, 339 F.3d at 946; Miller v. United States,
163 F.3d 591, 596 (9th Cir. 1998). Thus, particularly when
the government is charged with acting or failing to act in a
way that jeopardizes safety, there must be a legitimate policy
consideration on the other side of the balance before the
NANOUK V. UNITED STATES 17
discretionary function exception can be held to apply. In
each of the cases on which Nanouk relies, no such competing
policy consideration was present. For example, as we
observed in Chadd, “[w]hat distinguished the mold situation
in Whisnant is that there was no legitimate reason for the
commissary not to eliminate the toxic mold.” 794 F.3d
at 1112. Here, by contrast, there was a legitimate, competing
policy consideration underlying the government’s failure to
address safety concerns at the North River Station more
promptly—namely, the need to address simultaneous and
more urgent safety concerns presented by environmental
contamination at sites assigned a higher priority ranking. 4
Because the government’s decision to prioritize more
dangerous sites for remediation ahead of the North River
Station involved the weighing of competing policy
considerations, it is protected by the discretionary function
exception.
C. Delay in Remediating the Hot Spot
Finally, we address Nanouk’s allegation that, once the
government turned its attention to the North River Station in
1990, it negligently failed to discover and clean up the hot
spot in a timely manner. As noted earlier, the contractor that
the Army Corps initially hired to conduct remediation efforts
at the station went out of business before completing the
clean-up, as did the replacement contractor. Although a
4
We are mindful that, in the district court and on appeal, the
government erroneously relied on a report pertaining to an entirely
different location called “North River Recreation.” The North River
Recreation site is a spot by a river that service members used to fish and
recreate. It had little debris and no reported PCB contamination; no
PCBs were stored there. The North River Recreation report is not
factored into our analysis.
18 NANOUK V. UNITED STATES
third contractor eventually resumed the clean-up, the
government did not discover the hot spot until 2003–13
years after the government first directed its remediation
efforts toward the North River Station. Nanouk faults the
government for failing to identify the hot spot sooner, on the
theory that such failure caused, or at least contributed to, the
contamination of her property.
With respect to the first step of the analysis, we conclude
that the government had discretion to decide when and how
to conduct the remediation, as no mandatory and specific
directive required the government to complete the process
within a specific timeframe. Nanouk does not contend
otherwise.
At the second step of the analysis, however, we are
unable to determine whether the government’s decisions
were “grounded in social, economic, and political policy.”
Varig Airlines, 467 U.S. at 814. The government insists that
the discretionary function exception applies, but it has not
identified any competing policy considerations underlying
the 13-year delay in discovering the hot spot and
commencing removal of PCBs from the affected area.
Instead, the government makes a general appeal to limited
resources, and focuses on its decision in the 1980s to
prioritize sites posing graver risks of environmental harm.
While such policy considerations warrant application of the
discretionary function exception to Nanouk’s second theory
of liability, they do not automatically shield the government
from liability for subsequent delays. By 1990, the Air Force
and the Army Corps had decided to direct remediation
efforts toward the North River Station, presumably after
having addressed sites with more pressing environmental
safety concerns. As the record stands now, it appears that
once the government reached that decision in 1990, its
NANOUK V. UNITED STATES 19
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.” Camozzi,
866 F.2d at 290.
Of course, the government may have been conducting
environmental remediation at higher priority sites
throughout the 13-year period of delay, thus preventing it
from directing sufficient resources to the North River
Station. If so, the discretionary function exception might
protect the government’s weighing of competing policy
considerations for the reasons explained above. But the
government has not made any factual showing along those
lines, and the record does not disclose whether the delay in
pursuing remediation at the North River Station involved
decisions “susceptible to policy analysis.” Gaubert,
499 U.S. at 325. Accordingly, at this stage of the
proceedings, the government has failed to demonstrate that
the discretionary function exception applies to Nanouk’s
third theory of liability. See Chadd, 794 F.3d at 1108.
* * *
The discretionary function exception protects the
government’s alleged failure to supervise contractors during
the North River Station’s operation, as well as its
abandonment of the property between the station’s closure
in 1978 and 1990. However, based on the current record, we
cannot conclude that the discretionary function exception
also applies to the government’s failure to identify and
remediate the hot spot in a timely manner after 1990. For
that reason, we vacate the district court’s judgment
dismissing Nanouk’s action for lack of subject matter
jurisdiction and remand the case for further proceedings.
20 NANOUK V. UNITED STATES
Nanouk’s motion to strike the government’s
Supplemental Excerpts of Record (Dkt. No. 19) is DENIED.
VACATED and REMANDED.
The parties shall bear their own costs.