[CPEO-MEF] FORMER SITES, LIABILITY: Ninth Circuit Says Air Force Liable at former Alaska base

[Lenny Siegel <lsiegel@cpeo.org>]

Ninth Circuit Says Air Force Liable for Being Too Slow

By Stanley A. Millan
National Law Review
December 9, 2020


Nanouk v. United States, 974 Fed. 3d 941 (9th Cir. 2020), involved a federal tort claim suit for government negligence in contamination from a nearby military base in Alaska onto private property.

Plaintiff used her property (160 acres) for hunting, fishing, berry-picking in the 1960s and to build a cabin in the 1980s. Access to the cabin was by a trail from a main road and through a former military facility closed in 1978.

In the 1980s, the military was informed the former base was contaminated by polychlorinated biphenyls (PCBs) and it began a slow remediation process. However, between 1980 and 2003, PCBs left on the former base migrated into plaintiff’s property via a “hot spot” on the trail. Plaintiff’s vehicles picked up PCBs and carried them to her property. In 2003, Plaintiff learned of the contamination after reporting odors to the military, who investigated the property and reported back on high levels of PCBs.

Plaintiff sued under the Federal Tort Claims Act in 2015, for trespass and negligence, 28 U.S.C. § 1346 (FTCA). The FTCA waives sovereign immunity and allows a tort suit against the United States for negligent or wrongful acts or omissions of government employees (but not for independent contractors). There are various time limits and requirements for an administrative claim as predicates for the waiver of sovereign immunity. The waiver has exceptions including for “discretionary functions.” The district court had dismissed the suit based on “discretionary functions,” but the Ninth Circuit reversed.

…

For the entire article, see
https://www.natlawreview.com/article/ninth-circuit-says-air-force-liable-being-too-slow

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Lenny Siegel
Executive Director
Center for Public Environmental Oversight
A project of the Pacific Studies Center
LSiegel@cpeo.org
P.O. Box 998, Mountain View, CA 94042
Voice/Fax: 650-961-8918
http://www.cpeo.org





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