F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 11 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
M. LOUISE CANNON and ALLAN
ROBERT CANNON, Individuals,
Plaintiffs-Appellees/Cross-
Appellants,
v. Nos. 02-4059, 02-4066
UNITED STATES OF AMERICA,
Defendant-Appellant/Cross-
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 98-CV-882-J)
Ryan M. Harris (Anthony L. Rampton with him on the briefs), of Jones, Waldo,
Holbrook & McDonough, Salt Lake City, Utah, for Plaintiffs-Appellees/Cross-
Appellants.
Gay Elizabeth Kang, Trial Attorney, Torts Branch, Civil Division (Paul M. Warner,
United States Attorney, Daniel D. Price, Assistant United States Attorney, Robert D.
McCallum, Jr., Assistant Attorney General, J. Patrick Glynn, Director, Torts Branch,
Civil Division, Joann J. Bordeaux, Deputy Director, Torts Branch, Civil Division,
and David S. Fishback, Assistant Director, Torts Branch, Civil Division, with
her on the brief), United States Department of Justice, Washington D.C., for
Defendant-Appellant/Cross-Appellee.
Before LUCERO, BALDOCK, and O’BRIEN, Circuit Judges.
BALDOCK, Circuit Judge.
The Federal Tort Claims Act (FTCA) waives the sovereign immunity of the
United States for certain tort claims “accruing on or after January 1, 1945 . . . 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 . . . occurred.” 28 U.S.C. § 1346(b).
Under the FTCA’s limited waiver of sovereign immunity, “[a] tort claim against the
United States shall be forever barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues . . . .” Id. § 2401(b). This
Government appeal presents the question of whether § 2401(b) bars Plaintiffs’ FTCA
claim against the United States for damages to mining property caused by World War II
weapons testing. While not condoning the Government’s abysmal failure over the past
half-century to clean up the test site, we hold § 2401(b) bars Plaintiffs’ FTCA claim for
money damages. Accordingly, the district court erred in entering judgment for Plaintiffs.
We reverse and remand with directions to dismiss the complaint for lack of subject
matter jurisdiction.
I.
In 1945 near the end of World War II, the United States Army conducted
conventional high explosive, chemical, and incendiary weapons testing on Jesse F.
Cannon’s property located in the remote Dugway Mining District of Tooele County,
2
Utah. The property is a part of the “Yellow Jacket Area,” and sits adjacent to the
Army’s Dugway Proving Ground (DPG). The property consists of over 1,416 acres
encompassing 86.5 patented mining claims. The purpose of the Army’s testing
was to explore means of battling Japanese forces entrenched in caves in the Pacific
Islands. Prior to testing, Cannon secured a written agreement from the Army in
which Cannon agreed to the Army’s use of his property in exchange for the Army’s
promise to “leave the property of the owner in as good condition as it is on the date
of the government’s entry.”1
The Army failed to keep its promise to clean up Cannon’s property. In September
1945, Cannon reentered his property and found the testing had damaged his mines.2
That same month, Cannon successfully filed an administrative claim against the
Government to compensate him for cessation of mining operations “due to the use
of toxic chemical agents and explosive munitions.” The Government paid Cannon
1
During the testing known as “Project Sphinx,” the Army, according to
the record in this case, dropped over 3,000 rounds of ammunition containing either
chemical or incendiary weapons. Over twenty-three tons of chemical weapons were
dropped. The incendiary weapons tested included butane, gasoline, and napalm.
The chemical weapons tested included the choking agent phosgene, the blood agent
hydrogen cyanide, and the blistering agent mustard. The Army also dropped
conventional type bombs filled with high explosive materials.
2
Cannon walked the property with the Army Post Engineer and an Army Claims
Officer. The site visit report states the purpose of the walk was “to observe damage that
may have resulted from CWS [Chemical Warfare Services] operations in the area.” The
report further states the “entire area is liberally covered with shell, rocket, and bomb
fragments,” and notes that “[j]ust outside [a] cabin are 10 Butane filled dud bombs.”
3
$755.48 on his first claim. In October 1945, Cannon filed a second successful
administrative claim for destruction of mine shaft timbering due to “the use of
toxic chemical agents, incendiaries, and explosive munitions.” The Government
paid Cannon $2,064 on his second claim. Nearly five years later in July 1950, Cannon
submitted a third claim against the Government. To support his third claim, Cannon
submitted a statement which read in part:
I realize that when I accepted this $2064 payment from the Government
it constituted full satisfaction for the claim against the Government for
damages done to the Yellow Jacket Mine. However, I did not believe at
that time that the chemical agents used by the Army would remain in the
workings and make it impossible for me to ever operate the mine again
without some sort of decontamination of the underground workings. . . .
It is now five years since the Army dropped their poison gas bombs on the
mine and I am certain that there is still a concentration of poison gas present
in the mine that would preclude its operation by anybody without some sort
of decontamination. I do not know if the gas is present in dangerous
quantities or even if the odorous material present is a poison gas but I do
know that the miners who have looked at the property with a view of taking
a lease have shied away when they learned of the Army’s use of the mine.
. . . I believe[] that it would require about $5000 to put the mine in
condition to be worked again.
In 1951, the Government denied Cannon’s third claim without further complaint.
Jesse F. Cannon’s son, Dr. J. Floyd Cannon, acquired the property in 1954
with knowledge of ordnance contamination on the property. Around 1957, Dr. Cannon
conveyed a 75% interest in the property to his four children, retaining a 25% interest.
Over the next few years, Dr. Cannon made numerous trips onto the property and each
time found exploded and unexploded surface bombs and weapon fragments. Dr. Cannon
4
reportedly requested the DPG to clean up the property on multiple occasions, but never
filed any claim or grievance against the Government.
In the late 1970s, the Government conducted a comprehensive study of
contaminated lands at the DPG. In 1979, the Government issued a detailed report
of its study. United States Army Toxic and Hazardous Materials Agency, Report
No. 140, Installation Assessment of Dugway Proving Ground (1979). The report noted
testing had occurred in the Yellow Jacket Area adjacent to DPG: “The Yellow Jacket
Area . . . was used in the 1940’s . . . to test munitions containing chemical agents,
incendiaries, and high explosives. Complete documentation is lacking in this area.”
The report recommended that (1) “DPG better define the hazards and problems of
UXO [unexploded ordnance] at . . . the Yellow Jacket Area,” and (2) “action by DPG
be expedited to better define the extent of the test site[] within the . . . Yellow Jacket
Area[], and to bring [this] area[] under proper control.” Dr. Cannon apparently was
not aware of the report upon his death in 1980.
In 1980, Dr. Cannon’s four children, Mary Alice, Margaret Louise, Allan
Robert, and Douglas F. Cannon, inherited the remainder of the property. In 1988,
the Government issued an update to its 1979 report. United States Army Toxic and
Hazardous Materials Agency, Update of the Initial Installation Assessment of Dugway
Proving Ground (1988). Regarding the Yellow Jacket Area, the unclassified report
stated the area–
5
was identified in the [1979 report] as a test area for various unidentified
chemical agents, fire bombs, rockets, and smoke and mortar rounds during
the 1940s . . . . Discussion with long-time employees indicate that the
surface UXOs [unexploded ordnance] and empty containers were cleared
from the area but some subsurface UXOs could exist. . . . Due to an
absence of records, DPG has not been able to better define the activities
or exact locations where they occurred in the Yellow Jacket Area. The
installation is to withdraw this area from . . . the Public Domain, and
permanently add it to the current DPG land holdings because it is
potentially contaminated from past Army activities . . . .
The report reiterated the Yellow Jacket Area was “potentially contaminated with
hazardous materials,” and was subject to an ongoing “environmental assessment.”
On July 13, 1994, the United States Army Corp of Engineers (COE), in
cooperation with the DPG, notified the Cannons that the Government was conducting
a “geophysical survey of property known as the Yellow Jacket Mines.” The purpose
of the survey was “to determine whether . . . these lands have been impacted by
unexploded ordnance.” The letter provided a contact if the Cannons “wish[ed] to
discuss the project in greater detail.” Margaret Louise and Allan Robert Cannon
signed access agreements on July 22 and August 28, respectively.3 The agreements
authorized the Government to inspect the Cannons’ property “under the remedial design
phase of the Defense Environmental Restoration Program for Formerly Used Defense
Sites” (FUDS) to “[d]etermine [the] presence or absence of Ordnance and
3
As a result of a conveyance from Mary Alice, Margaret Louise today owns
a 50% interest in the property. The two Cannon brothers, Douglas F. and Allan
Robert continue to own a 25% interest each. Margaret Louise and Allan Robert
are Co-Plaintiffs in this case. Douglas F. Cannon is not a party to this litigation.
6
Explosive Wastes (OEW) contamination.”4
On August 23, 1994, the COE issued a press release announcing “an informal
Availability Session” to be held the following week on August 30, 1994, at the Tooele
County Courthouse. The release stated the COE was undertaking an “Engineering
Evaluation/Cost Analysis (EE/CA)” to determine risks associated with former defense
sites including the Yellow Jacket Area.5 The release explained that testing in and around
the area during the 1940s involved “toxic, smoke, and flame agents in bombs, mortar
and artillery shells, rockets, and . . . light case tanks. Gasoline, butane, the non-persistent
agents Phosgene, Hydrogen Cyanide, and Cyanogen Chloride, and the persistent agent
Mustard Gas were used in the tests.” The release further explained that once testing
ended, “the cleanup process involved a sweep of the areas to clear remaining surface
ordnance.” The release specifically noted the possibility that “some soil contamination
and subsurface OEW may still exist.”
Margaret Louise Cannon attended the public “Session” and obtained three
“Fact Sheets.” One of those sheets, entitled “Yellow Jacket Ranges,” reiterated much
4
As part of the restoration program, the COE conducted a risk assessment of the
Yellow Jacket Area in 1993. The unreleased report noted the “potentially catastrophic
nature of an encounter” with unexploded munitions in the area. This report apparently
spawned the Government’s “survey.”
5
According to the release, “[i]nvestigation of FUDS takes place under the
Defense Environmental Restoration Program (DERP) which is regulated by the
Comprehensive Environmental Response, Restoration, Compensation, and Liability
Act (CERCLA) of 1980 as amended by the Superfund Amendment and Reauthorization
Act (SARA) of 1986.”
7
of the information contained in the press release. A portion of the fact sheet labeled
“Potential Hazards” read:
A study by the [COE] in 1993 . . . reported that it is highly probable that
these mine areas are contaminated with hazardous ordnance and explosive
waste (OEW). It is suspected that there is subsurface OEW throughout
the area which may come to the surface through erosion, frost heaving,
intrusive work such as digging, or recreational land use. Additionally,
rounds that may have fallen short or long of intended targets could also
present public hazards.
In the fall of 1994, the COE conducted numerous interviews with community
members to assess the public’s level of concern and informational needs regarding
the EE/CA project. On December 6, 1994, Margaret Louise Cannon participated in a
telephone interview. The interviewer’s contemporaneous notes indicate Margaret Louise
obtained knowledge about the Government’s weapons testing program in the Yellow
Jacket Area from her father Dr. J. Floyd Cannon. According to the notes, Dr. Cannon
asked DPG four to six times to clean up its mess and was “treated horribly.” Dr. Cannon
witnessed unexploded ordnance “all over” the property and was “livid over” the Army’s
testing. During the interview, Margaret Louise reportedly expressed much distrust
towards the Government and its apparent willingness to address the problem. She
stated private land owners affected by the testing were “probably going to have
to hire an attorney.”
In August 1996, the Government released an EE/CA draft report documenting
the survey results. United States Army Corps of Engineers Engineering and Support
8
Center, Draft: Formerly Used Defense Site Engineering Evaluation/Cost Analysis
Report: Yellow Jacket Ranges, Site No. J08UT109800, Tooele County, Utah (1996).
The draft report indicated the Cannons’ property was in fact highly contaminated with
ordnance. A limited search of the property based on “search grids” revealed “subsurface
geophysical anomalies.”6 The report stated “[n]o assumption can be made as to what
percentage of subsurface geophysical anomalies are actually CWM [chemical weapons],
UXO, or UXO related items.” The limited search also revealed “a number of UXO
and UXO-related items . . . on the ground surface.”7 The report concluded:
The density of the geophysical anomalies and ordnance-related debris, the
presence of UXO and UXO-related items on the surface, and the presence
of multiple spent ordnance items imply that a relatively higher hazard exists
due to UXO/CWM contamination at the Yellow Jacket Mines than at the
other investigation areas.
6
A government contractor conducted the geophysical survey. In conducting
the survey, the contractor searched portions of only five of the Cannons’ 86.5 patented
mining claims. Within those five claims, the contractor searched specified 100' by 200'
“search grids.” Twenty-eight of forty grids in the Yellow Jacket Area were located on
the Cannons’ property.
7
Among the “live” munitions found on the surface were (1) a 4.2-inch mortar
round filled with high explosives; (2) four partially intact to intact burster tubes and
fuses from M47 100-pound chemical-filled bombs containing remnant amounts
of high explosives; (3) four partially intact to intact burster tubes and fuses from
7.2-inch chemical rockets, some of which were still inside burst warhead casings;
and (4) three partially intact burster tubes from 7.2-inch chemical rockets containing
varying amounts of high explosives. The report noted these items provided “[n]o
evidence of intact chemical rounds,” and were subsequently “demilitarized.”
Numerous burst bomb casings, spray/drop tanks, 4.2-inch mortar baseplates,
and spent rocket motors from 7.2-inch rockets also were present in the area.
9
Due to cost concerns, the EE/CA draft report rejected a proposed clean-up of the
site. The report estimated “Full-Scale Removal” of munitions and related debris in the
Yellow Jacket Area would cost approximately $12.3 million. The report recommended
an alternative plan which included (1) acquisition of private mine claims and property
titles; (2) fencing and posting signs; (3) limited removal action; and (4) mine sealing.
To date, the only action the Government has taken associated with the draft report’s
conclusions and recommendations is to defend this lawsuit. In fact, “due to funding
constraints,” the Government has yet to issue a final version of the EE/CA Report.8
II.
On April 7, 1998, Plaintiffs Margaret Louise and Allan Robert Cannon presented
the Army a damage claim for injury to their respective mining interests. On December
11, 1998, the Cannons filed this lawsuit under the FTCA asking for “not less than $8
million.” Shortly thereafter, the Army summarily denied the Cannons’ administrative
claim. See 28 U.S.C. § 2675(a).9 The Government submitted a motion to dismiss the
Cannons’ suit for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
8
Despite the contamination, the Cannons’ mining interests in the affected area
have not been wholly unproductive. The district court found that between 1969 and 1993
the Cannons earned $246,000 from mining leases in the area.
9
The Cannons properly filed this action prior to disposition of their administrative
claim pursuant to § 2675(a). That section provides “[t]he failure of an agency to make
final disposition of a claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for purposes of this
section.”
10
The Government based its motion on, among other things, the FTCA’s two-year statute
of limitations, 28 U.S.C. § 2401(b), and the doctrine of sovereign immunity.10 The
Cannons argued the discovery rule tolled the limitations period until August 1996 when
the EE/CA draft report issued. Because the Cannons filed their administrative claim
in April 1998, their suit ostensibly was timely.
After hearing, the district court denied the Government’s motion to dismiss.
Apparently rejecting application of the discovery rule, the court summarily concluded
the contamination from the Army’s weapons testing constituted a “continuing trespass
and nuisance” on the Cannons’ mining interests. The court made no underlying factual
findings to support its legal conclusion. Following a bench trial and entry of judgment
for the Cannons, the Government appealed.11 We exercise jurisdiction under 28 U.S.C.
10
The FTCA constitutes a limited waiver of the Government’s sovereign
immunity. See Smith v. United States, 507 U.S. 197, 201 (1993). If a claimant
fails to satisfy the FTCA’s timing requirements set forth in § 2401(b), the district
court lacks subject matter jurisdiction to proceed under the FTCA. See Dahl v.
United States, 319 F.3d 1226, 1228 (10th Cir. 2003).
11
Following denial of the Government’s motion to dismiss, the Cannons
moved for partial summary judgment on the question of liability. The district court
granted the Cannons’ motion and set the matter for trial on the question of damages.
The Government filed a motion in limine to exclude evidence of remediation costs
as the measure of damages. Over the Cannons’ objection, the court granted the
Government’s motion. The district court ruled that dimunition in value was the proper
measure of damages. The court concluded the presence of military ordnance reduced the
value of the property from $176.26 per acre to $25.00 per acre, and awarded the Cannons
$160,936.85 in damages based upon their 75% ownership interest. See supra n.3. On
appeal, the Government also challenges the amount of the damage award. The Cannons
have cross-appealed, challenging the district court’s measure of damages. Because we
(continued...)
11
§ 1291. We review de novo the district court’s legal conclusion. See Dahl v. United
States, 319 F.3d 1226, 1228-29 (10th Cir. 2003).
On appeal, the Government contends the two-year limitations period began
to run no later than August 30, 1994, the date on which Margaret Louise Cannon
attended the “Public Availability Session” and obtained a fact sheet indicating a
high probability the Cannon property was contaminated with hazardous ordnance
and explosive waste. The Cannons counter with the proposition that the discovery
rule tolled the limitations period until August 1996 when the Government released
the EE/CA draft report. According to the Cannons, “[t]heir claim did not accrue
until release of the Government’s 1996 EE/CA report, which finally and conclusively
determined the Cannon property had been severely contaminated by U.S. Army weapons
tests.” In the alternative, the Cannons adopt the district court’s rationale. They assert
the Government’s contamination constitutes a continuing trespass and nuisance on their
property. Under this theory, the Cannons argue their FTCA claim continues to accrue
until the Government ceases its tortious conduct by decontaminating their property.
III.
An FTCA claim against the Federal Government must be “presented in writing
(...continued)
11
conclude the Cannons’ FTCA claims are time-barred, we need not consider the question
of damages.
12
to the appropriate Federal agency within two years after such claim accrues.”12 Federal
law governs the point at which a claim accrues under the FTCA. Hoery v. United States,
324 F.3d 1220, 1222 (10th Cir. 2003). Neither the FTCA nor its legislative history,
however, speaks to when a “claim accrues.” In making that determination, we keep
“in mind that the Act waives the immunity of the United States and that in construing
the statute of limitations, which is a condition of that waiver, we should not take it upon
ourselves to extend the waiver beyond that which Congress intended.” United States
v. Kubrick, 444 U.S. 111, 117-18 (1979). Nor should we seek to narrow that waiver.
Rather, we seek to interpret § 2401(b) consistent with congressional intent.
A.
In the Tenth Circuit, the general rule for accrual of an FTCA claim outside
the medical malpractice context is the “injury-occurrence rule.” An FTCA tort claim
accrues on the date of the injury’s occurrence. Plaza Speedway Inc. v. United States,
311 F.3d 1262, 1267-68 (10th Cir. 2002). A different rule, the discovery rule, applies
only in the “exceptional case” where a reasonably diligent plaintiff could not immediately
know of the injury and its cause. Id. at 1268. In that instance, an FTCA claim accrues
12
Section 2401(b) reads in its entirety:
A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within two years
after such claim accrues or unless action is begun within six months after
the date of mailing, by certified or registered mail, of notice of final denial
of the claim by the agency to which it was presented.
28 U.S.C. § 2401(b).
13
at the time when a reasonably diligent plaintiff would have known of the injury and its
cause. Id. at 1267. For FTCA purposes, “[a] claimant is aware of the injury once . . .
apprised of the general nature of the injury. Lack of knowledge of the injury’s
permanence, extent, and ramifications does not toll the statute.” Gustavson v. United
States, 655 F.2d 1034, 1036 (10th Cir. 1981) (medical malpractice claim); see also
Robbins v. United States, 624 F.2d 971, 973 (10th Cir. 1980) (uncertainty as to
the “ultimate damage” does not toll § 2401(b)). In Dahl, 319 F.3d at 1229, we
recently explained–
the discovery rule should be applied only when the injury is
“unknowable by its very essence, i.e., its existence at the critical
moment simply cannot be ascertained. The fact that a plaintiff happens
to be ignorant of a potential claim, whether because the plaintiff was not
diligent in monitoring its land or because observing the taking would
exact a hardship on plaintiff in terms of money, manpower, time and
effort, is not enough to” justify application of the discovery rule.
(quoting Catellus Dev. Corp. v. United States, 31 Fed. Cl. 399, 407 (1994)) (internal
citations and brackets omitted).
After Dahl, the Government’s argument that this is not an “exceptional case”
calling for application of the discovery rule is forceful.13 Any suggestion that the
13
In Dahl, landowners filed an FTCA claim alleging the Government wrongfully
destroyed a mineral ore stockpile on their mining claims. The stockpile contained several
tons of ore. The Bureau of Land Management (BLM) “reclaimed” the stockpile in July
1997. None of the owners visited the reclamation site until June 1998. In May 2000,
the owners filed an administrative claim with the BLM. Holding the action barred,
we squarely rejected application of the discovery rule:
(continued...)
14
nature of the Cannons’ injury or its cause at the outset was “unknowable by its very
essence,” seems doubtful.14 But we need not apply the “injury-occurrence rule” to resolve
this case. Our decision in Plaza Speedway, 311 F.3d at 1262, compels us to conclude
that the discovery rule, even if applicable, did not toll the two-year limitations period
beyond the date of the “Availability Session” in August 1994.
In Plaza Speedway, we applied the discovery rule to an FTCA toxic tort claim.
From 1960 through 1984, the Army, on property adjacent to the subject property, trained
firefighters by pouring flammable liquids into a shallow fire pit, igniting the liquids, and
13
(...continued)
We see no reason to depart from the general rule in this case. The
destruction of a quarter-mile wide, 30-foot high stockpile of mineral ore
is a manifest injury, whose cause could hardly have been a mystery. The
injury was neither inherently unknowable, nor latent. Plaintiffs could have
discovered what had happened at any time after the leveling. To be sure,
the area is somewhat remote, about 100 miles from Dahl’s laboratory. But
it is fair to charge a property owner with knowledge of what happens on
his land, at least when the occurrence would be obvious upon inspection.
Dahl, 319 F.3d at 1229 (internal citations, quotations, and brackets omitted).
14
Nothing in the record suggests the Cannons’ grandfather and predecessor in
title could not have ascertained the nature of his injury and its cause following cessation
of the Army’s weapons testing near the end of World War II. Rather, the record reflects
Jesse F. Cannon did ascertain the nature of his injury and its cause. Shortly after testing
ended, Cannon walked the property which was “liberally covered with shell, rocket,
and bomb fragments.” See supra n.2. He submitted three administrative claims to
the Army. In his second claim, Cannon referred to the Army’s “use of toxic chemical
agents, incendiaries, and explosive munitions.” In his third claim, Cannon expressed
the belief “that the chemical agents used by the Army . . . remain in the workings and
make it impossible for me to ever operate the mines again without some sort of
decontamination.” See supra at 3-4 (emphasis added).
15
extinguishing the flames. When claimants purchased the adjacent property in February
1989, they “were aware that the United States Army had conducted numerous operations
at [the airfield] in a close proximity to [the] area whereby jet fuel, solvents and various
chemicals were employed in a number of exercise activities over the years.” Id. at 1265.
Nonetheless, the new owners did not seek an environmental assessment of their property.
In August 1993, an environmental geologist with the State of Kansas phoned the owners
to discuss chemical contamination on their property. The geologist followed up with
an October 1993 letter informing the owners of hazardous substances on their property.
In February 1995, the owners received formal notice from the State that the Army’s
nearby military operations could be the source of the contamination. The owners filed
an administrative claim with the Army for property contamination in October 1995.
We held the discovery rule tolled the running of the limitations period only until
August 1993 when the State’s environmental geologist informally phoned the owners
to discuss the contamination on their property. Because the owners knew at that time
of the Army’s prior use of chemical substances on the adjacent property, they had
adequate knowledge of their injury and its cause to warrant further investigation.
Thus, the owners’ October 1995 administrative claim was untimely. Section 2401(b)
and the doctrine of sovereign immunity prohibited the district court from exercising
jurisdiction over the matter. Id. at 1270-71.
16
We reach a similar conclusion in this case. In a December 1994 government
interview, Margaret Louise Cannon acknowledged she learned of the weapons testing
on the property from her father, Dr. J. Floyd Cannon, who died in 1980. She indicated
her father witnessed unexploded ordnance “all over” the property and “was livid” over
the testing. She further indicated Dr. Cannon repeatedly asked the DPG to clean up
the property. See supra at 8. In July 1994, the Army sent the Cannons a letter of
concern regarding ordnance contamination on their property. In August 1994, the
Army held a public gathering which further informed the Cannons about possible
ordnance contamination on their property and the ongoing environmental assessment.
One of the fact sheets which Margaret Louise Cannon procured at the gathering “reported
that it is highly probable that these mine areas are contaminated with hazardous ordnance
and explosive waste.” She acknowledged the Cannons’ likely need for an attorney to
address the situation during her December 1994 interview. See supra at 6-8.15
The Cannons certainly were not “ignorant of a potential claim” against the
Government in August 1994. Dahl, 319 F.3d at 1229. At that point (if not before),
the Cannons possessed adequate information about their injury and its cause
to commence running of the limitations period. Yet they failed to seek counsel
or initiate any investigation into the matter. Rather, the Cannons waited until
15
The Cannons do not suggest that Allan Robert’s knowledge of the situation
was any different than Margaret Louise’s knowledge. Presumably, she shared the
information and knowledge she obtained with her brother.
17
the Government informed them of the extent of their injury to file an administrative
claim, and now assert they were unaware of “long-term” damage to their property
prior to release of the EE/CA draft report.
Notably, much of the damage which the Government’s study detected was
surface damage due to unexploded ordnance. See supra n.7. A surface investigation
of their mining property would have revealed the likely extent of the Cannons’ property
damage long before the Government’s study did. As we stated over two decades ago in
Gustavson, 655 F.2d at 1036, and now reaffirm: “Lack of knowledge of the injury’s
permanence, extent, and ramifications does not toll [§ 2401(b)].”
The Supreme Court’s decision in Kubrick, 444 U.S. at 111, further supports
our conclusion. In that FTCA malpractice case, the Court rejected the proposition
that once aware of an injury and its cause, a plaintiff “need not initiate a prompt
inquiry and would be free to sue any time within two years from the time he receives
or perhaps forms for himself a reasonable opinion that he has been wronged.” Id. at
118. The Cannons, armed with notice of their injury and its cause, could have protected
themselves months if not years before release of the EE/CA draft report. Under the
undisputed facts of this case, the Cannons undoubtedly had notice of the general nature
of their injury and its cause no later than August 1994. Hence, we refuse to postpone
accrual of their FTCA claim until the Government informed them as to the extent
of their damage in August 1996. Binding precedent will not permit us to “undermine
18
the purpose of the limitations statute, which is to require the reasonably diligent
presentation of tort claims against the Government.” Id. at 123.
B.
The Cannons seek to avoid the effect of § 2401(b) and case law construing it
by characterizing the Government’s tortious conduct in this case as continuous. As we
recently explained: “For continuing torts, . . . [an FTCA] claim continues to accrue as
long as the tortious conduct continues, although the plaintiff’s recovery is limited by
the statute of limitations to the two-year period dating back from when the plaintiff’s
complaint was filed.” Hoery, 324 F.3d at 1222. Under their continuing tort theory,
the Cannons contend the presence of the Government’s unexploded ordnance and
chemical contamination on their mining interests constitutes ongoing tortious
misconduct which accrues repeatedly.
Under the FTCA, the Government is liable “in the same manner and to the
same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, and
“in accordance with the law of the place where the act . . . occurred.” Id. § 1346(b)(1).
Because the FTCA mandates application of state law to resolve questions of substantive
liability, the question of whether a tort is characterized as permanent or continuous
depends upon how state law would characterize the tort. Hoery, 324 F.3d at 1222.16
16
In Hoery, 324 F.3d at 1223-24, we rejected the Government’s argument that
a continuing tort theory in FTCA cases would thwart Congress’ intent to establish a
(continued...)
19
Because the Cannons’ property is located in Utah, we look to Utah state law to
characterize the nature of the tort in this case. Compare infra n.18.
To determine whether a trespass or nuisance is permanent or continuous,
Utah state courts “look solely to the act constituting the trespass [or nuisance], and not
to the harm resulting from the act.” Breiggar Prop., L.C., v. H.E. Davis & Sons, 52 P.3d
1133, 1135 (Utah 2002) (emphasis in original) (clarifying Walker Drug Co., Inc. v. La
Sal Oil Co., 902 P.2d 1229 (Utah 1995) (Walker I)). In Breiggar, a landowner sued a
state transportation department contractor for trespass after the contractor left debris
on his property. The Utah Supreme Court characterized the tort as permanent, and
concluded the limitations period began to run on the date the contractor dumped the
debris on the property. The court viewed as irrelevant “[t]he fact that the pile of debris
continued to remain on Breiggar’s property.” Id. at 1136. “Whether the trespass or
nuisance is continuous or permanent is a different question from whether the resulting
16
(...continued)
uniform statute of limitations for tort claims by effectively extending § 2401(b)’s
limitations period. We explained “[c]ongressional intent that stale claims be avoided is
not frustrated when, under applicable state law, the wrongful conduct continues.” Id. at
1224. Moreover, “the two-year statute of limitations does run uniformly on a continuing
tort because damages are recoverable for only the two years prior to the time the plaintiff
files the required administrative complaint.” Id. The language of the FTCA and Hoery’s
reasoning undoubtedly dictate the application of state law in this case to characterize the
nature of the Government’s tort. But cf. Toussie v. United States, 397 U.S. 112, 115
(1970) (noting in the criminal context that “the tension between the purpose of a statute
of limitations and the continuing offense doctrine is apparent; the latter, for all practical
purposes, extends the statute beyond its stated term”) (internal quotations and brackets
omitted).
20
injury to the land or to the possessor’s interests in the land is temporary or permanent.”
Walker Drug Co., Inc. v. La Sal Oil Co., 972 P.2d 1238, 1246 n.9 (Utah 1998) (Walker
II)). Under Utah law, a continuous tort requires “recurring tortious . . . conduct and
is not established by the continuation of harm caused by previous but terminated
tortious . . . conduct.” Breiggar, 52 P.3d at 1136 (emphasis in original) (internal
quotations omitted).
In this case, the Army discontinued its conduct, i.e., dropping ordnance, on
the Cannons’ property in 1945, leaving a “debris field” of exploded and unexploded
ordnance and chemical contamination on and under the surface. The harm for
which the Cannons now seek to recover damages is the exact same harm which their
grandfather, Jesse F. Cannon, incurred in 1945 and which their father, Dr. J. Floyd
Cannon, “inherited” in 1954. Despite the Cannons’ contrary assertion, the fact that
dangerous ordnance and contamination remain on the Cannons’ property is irrelevant
in characterizing the nature of the Government’s tort under Utah law. The harm that
existed in 1945 is the harm that exists now. The Cannons do not suggest and nothing
in the record supports the proposition that contamination or ordnance continues to enter
or migrate onto the Cannons’ property. Compare Hoery, 324 F.3d at 1221 (recognizing
allegation that chemical contamination continued to migrate onto plaintiff’s property
21
and enter groundwater and soil).17 The Government’s failure to remove ordnance and
contamination from the Cannons’ property does not constitute a continuing trespass
or nuisance under Utah law.18 Accordingly, a continuing trespass or nuisance theory
provides the Cannons no relief from §2401(b)’s two-year limitations period.
IV.
The result the law dictates in this case does not diminish the harm to the
Cannons’ property which has persisted over half a century. Courts generally “should
regard the plea of limitations as a meritorious defense, in itself serving a public interest.”
Kubrick, 444 U.S. at 117 (internal quotations omitted). Nevertheless, “[e]very statute of
limitations . . . may permit a rogue to escape.” Toussie v. United States, 397 U.S. 112,
123 (1970) (internal quotations omitted). Prior to testing, the United States expressly
promised the Cannons’ grandfather that it would “leave the property of the owner in as
17
Although Utah law provides no definite answer, detonation of ordnance
presently on the Cannons’ property causing additional harm might very well be
characterized as a new instance of tortious conduct. The Government acknowledges
the situation would change significantly if unexploded ordnance on the Cannons’
property accidently detonated causing personal or additional property damage. We
need not reach this question, however, as the record before us does not indicate that
any such detonations have occurred.
18
As Hoery illustrates, Colorado law would dictate a different result in this
case. In Hoery, we certified to the Colorado Supreme Court the question of whether
the ongoing presence of toxic chemicals on plaintiff’s property constitutes a continuing
trespass or nuisance under Colorado law. 324 F.3d at 1222-23. The Colorado Supreme
Court held that “Colorado law recognizes the concepts of continuing trespass and
nuisance for those property invasions where a defendant fails to stop or remove
continuing, harmful physical conditions that are wrongfully placed on a plaintiff’s
land.” Hoery v. United States, 64 P.3d 214, 220 (Colo. 2003) (emphasis added).
22
good condition as it is on the date of the government’s entry.” Fifty-eight years later,
the Government has yet to fulfill its contractual obligation to the Cannon family.
They are still waiting.19
The United States Government has yet fully to recognize and appreciate Jesse
F. Cannon’s contribution to National Security during World War II. The Government
should have lived up to its obligations long ago. Unfortunately, applicable law rendered
the district court powerless to grant the Cannons the monetary relief to which they
undoubtedly are entitled absent decontamination. The Cannons’ remedy at this
stage is political, however, not legal.20
REVERSED and REMANDED with instructions to dismiss this action for
want of subject matter jurisdiction.
19
We share the frustration the district court expressed over the situation. The
court specifically directed the Government to bring to the pre-trial conference an Army
official prepared with authority to state a specific time by which the Plaintiffs’ property
will be cleaned-up. After hearing from a representative of the COE, the court found that
if several variables including Congressional funding remain as they currently stand, the
clean-up could begin in 2007.
20
The FTCA provides only for an award of monetary damages. We express no
opinion on the possible availability of injunctive relief to remedy the situation.
23