Dahl v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 11 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RULON W. DAHL, TECH
MINERALS, INC., MARK R. DAHL,
PAULA KNIGHT, SCOT G. DAHL,
CAROLYN MATHER, DONNA M.
DAHL, and COMMERCIAL
INTERIORS CONSTRUCTION,
No. 01-4174
Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:01-CV-63-K)

Stephen Kent Christiansen (Thomas W. Clawson, with him on the briefs), of
Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, for Plaintiffs-
Appellants.

Steve Frank, Attorney, Appellate Staff, Civil Division, Department of Justice,
Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General, Paul M.
Warner, United States Attorney, Salt Lake City, Utah, and Leonard Schaitman,
Attorney, Appellate Staff, Civil Division, Department of Justice, Washington,
D.C., with him on the brief), for Defendant-Appellee.
Before HARTZ , ALDISERT * and PORFILIO , Circuit Judges.

HARTZ , Circuit Judge.

Plaintiffs brought suit against the United States under the Federal Tort

Claims Act (FTCA), 28 U.S.C. § 2674, alleging that the United States Bureau of

Land Management (BLM) wrongfully destroyed a stockpile of mineral ore on

their mining claim. The district court dismissed their FTCA claim on the ground

that they had failed to present the claim to the BLM within the two-year

limitations period set forth in 28 U.S.C. § 2401(b). We have jurisdiction under 28

U.S.C. § 1291 and Fed. R. Civ. P. 54(b). We affirm, holding that the limitations

period commenced to run when the BLM destroyed the stockpile, not when

Plaintiffs discovered the damage.

Plaintiffs own interests in a placer mining claim, known as Black Diamond

Claim # 1, on land owned by the United States and managed by the BLM. A

placer claim is “[a] mining claim . . . where the minerals are not located in veins

or lodes within rock, but are usu[ally] in softer ground near the earth’s surface.”

Black’s Law Dictionary 1010 (7th ed. 1999). The BLM is charged with ensuring

the restoration of areas damaged in the process of mineral exploration or

*
The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.

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extraction. See 43 C.F.R. § 3809 (2002). Such post-mining restoration is often

referred to as “reclamation.” See § 3809.5.

This litigation arises out of the BLM’s destruction of a stockpile of mineral

ore on Black Diamond # 1. The stockpile was a quarter-mile wide, 30 feet high,

and contained many tons of material. Plaintiffs contend that they used the

stockpile to identify the areas of the claim that had been explored and those that

would be most profitable to mine. The stockpile was leveled during July 7 and 8,

1997, when, believing that Plaintiffs had abandoned their claim, the BLM

“reclaimed” it.

None of the Plaintiffs had occasion to visit the claim until June 1998,

nearly a year after the leveling, when Plaintiff Rulon Dahl (Dahl) traveled to the

site. To reach the stockpile, Dahl needed to drive about 100 miles from the

laboratory where he examined ore samples. He described the scene as follows:

The stockpile was gone; the discovery area was gone;
and an additional portion of the surrounding, adjoining
hills was all pushed into a ravine. . . . Not only had the
BLM destroyed the stockpile and the discovery area and
leveled the ground, it had also destroyed a road leading
to the stockpile; filled an entire ravine with material;
and created three new check dams. The whole area was
unrecognizable.

Aplt. App. at 159-60.

In May 2000, almost two years after Dahl’s discovery, Plaintiffs filed an

administrative complaint with the BLM. They alleged that the United States,

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through the BLM, had wrongfully destroyed their stockpile and was liable for the

damage under the FTCA.

The BLM denied relief and Plaintiffs filed suit in district court on

January 26, 2001. The district court ruled that Plaintiffs’ claim accrued either

when the stockpile was leveled or shortly thereafter, when they should have

discovered the injury. Because Plaintiffs had failed to present their claim to the

BLM within two years of its accrual, as required by 28 U.S.C. § 2401(b), the

court dismissed the claim for lack of jurisdiction. The district court also

dismissed without prejudice Plaintiffs’ Fifth Amendment takings claim against the

United States. Although claims against another defendant are still pending in

district court, we have jurisdiction to hear this appeal because the district court

entered an order certifying the FTCA decision as final and appealable. See Fed.

R. Civ. P. 54(b).

Plaintiffs’ appeal challenges (1) the district court’s ruling that the injury-

occurrence rule, instead of the discovery rule, governed the accrual of their FTCA

cause of action, and (2) its finding that even under the discovery rule, their action

accrued at the time of the injury (or shortly thereafter) because they knew or

should have known at that time that the leveling had occurred. Agreeing with the

district court’s first ruling, we need not address its finding concerning application

of the discovery rule.

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 “Absent a waiver, sovereign immunity shields the Federal Government and

its agencies from suit.” Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475

(1994). “Sovereign immunity is jurisdictional in nature.” Id. Through the FTCA,

the United States waived its immunity to suits “for money damages . . . for injury

or loss of property . . . 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 . . . .” 28 U.S.C. §1346(b)(1). One condition of that waiver,

however, is that “[a] tort claim . . . [must be] presented in writing to the

appropriate Federal agency within two years after [it] accrues . . . .” 28 U.S.C.

§ 2401(b). Thus, if a litigant does not satisfy the timing requirement of

§ 2401(b), the district court must dismiss for lack of subject matter jurisdiction.

Casias v. United States, 532 F.2d 1339, 1340 n.1 (10th Cir. 1976). The district

court here found that Plaintiffs did not satisfy the FTCA’s two-year limitation

period and dismissed the case for lack of jurisdiction.

We review de novo a district court’s dismissal for lack of subject matter

jurisdiction, King v. United States, 301 F.3d 1270, 1273 (10th Cir. 2002), but the

underlying factual determinations will not be disturbed unless clearly erroneous,

see Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1266 (10th Cir. 2002).

In this case the relevant facts are undisputed. We need decide only whether, in

light of those facts, the district court applied the correct accrual rule.

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 Plaintiffs contend that all FTCA claims are governed by the discovery rule,

which provides that the limitations period begins “when the plaintiff knows or has

reason to know of the existence and cause of the injury which is the basis of his

action.” Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir.

2001) (internal quotation marks omitted). The government argues that the

discovery rule is applicable only in cases involving medical malpractice or other

forms of hidden injury. In other cases, it contends, the traditional time-of-injury

rule applies.

We recently set forth how to determine when an FTCA claim accrues.

“[T]he general statute of limitations accrual rule in non-medical malpractice

FTCA cases [is] the injury occurrence, and not the discovery rule.” Plaza

Speedway, 311 F.3d at 1267-68. The “proper approach” is to depart from the

general rule only in “exceptional case[s] in which the plaintiffs could not have

immediately known of [their] injur[ies].” Id. at 1268 (emphasis added).

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, see Barrett v. United States, 689 F.2d 324, 327 (2d

Cir. 1982), nor latent, see Plaza Speedway, 311 F.3d at 1267 (interpreting

United States v. Kubrick, 444 U.S. 111 (1979)). Plaintiffs could have discovered

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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 “[i]t is fair to

charge a property owner with knowledge of what happens on his land,” Catellus

Dev. Corp. v. United States, 31 Fed. Cl. 399, 408 (1994), at least when the

occurrence would be obvious upon inspection.

One should keep in mind that a claim does not have to be filed the moment

the cause of action accrues. The FTCA gives tort claimants two years in which to

notice the damage, consult an attorney, and prepare to file a claim. Thus, in this

case Plaintiffs still had more than a year to present their claim after Dahl

discovered the injury in June 1998. The rationale for the discovery rule is that it is

unjust to commence the two-year period before it is possible for the plaintiff to

learn of the cause of action. There is no injustice in adhering to the two-year limit

when the cause of action, as here, is obvious.

We find support for our conclusion in Catellus. There, the Court of Federal

Claims rejected the discovery rule in a takings case involving land “so remote that

it [was] accessible only by helicopter or by a combination of off-road driving and

hiking.” 31 Fed. Cl. at 400. The court explained that 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.” Id. at 407. “The fact that a

plaintiff happens to be ignorant of a potential claim, whether because the plaintiff

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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].” Id.

We hold that under the circumstances presented in this case, the discovery

rule does not apply. In light of this holding, we need not address Plaintiffs’

argument that under the discovery rule the action was timely filed. Plaintiffs’

claim accrued no later than July 8, 1997, when the stockpile was leveled. Because

the administrative claim was filed more than two years after that date, the district

court correctly concluded that the action was untimely, and correctly dismissed for

lack of subject matter jurisdiction.

We AFFIRM the judgment of the district court.

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