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On Remand, Court Doubts Government Acted with Discretion in Stalled Alaska Cleanup

In September 2020, I wrote a Litigation Blog post about the Ninth Circuit’s decision in Nanouk v. United States, 974 F.3d 941 (9th Cir. 2020), which considered whether the so-called discretionary function exception barred tort claims against the government in connection with its lengthy, haphazard cleanup of a PCB hotspot near a Cold War-era military installation in Alaska. As I explained in that article, the exception bars tort claims that are based on discretionary government conduct—often following a policy-based analysis—but not claims that are based on simple negligence by government officials.  Because cleanup protocols for such bases were generally grounded in economic and national security policy, the Ninth Circuit held the exception barred all claims asserted by the plaintiff, whose adjacent land was impacted by the PCBs, except one claim: that after deciding to undertake the cleanup in 1990, the government simply failed to do it for 13 years. The Court remanded that issue, instructing the government to proffer evidence showing that the delay in effectuating the cleanup was likewise policy based.  On remand, the trial court addressed this issue in denying without prejudice the United States' Motion to Dismiss.  Nanouk v. United States, Case No. 3:15-cv-00221-RRB (Mar. 15, 2023).   

After attempting to establish such a record, the government moved to dismiss the case based on the discretionary function exception. But in its March 15, 2023 decision, the District Court for the District of Alaska denied the motion. While the denial was without prejudice, the Court appeared skeptical that the government would be able to show that its conduct was the product of a reasoned policy analysis rather than simple negligence. The government principally argued that the cleanup delay was policy based because its efforts were directed elsewhere, to sites with higher environmental risks. Thus, every decision that resulted in the delay was discretionary.

The plaintiff told a different story, though. The government cycled between contractors, who performed poorly, issued inadequate reports, kept deficient records, and went out of business. The government never compensated for these successive failures and the delays that resulted. While the government took responsibility to prepare a final site report in 1996, that report was not finished until 2001. The government could not explain what happened in these intervening years. Most importantly, the government apparently missed the PCB hotspot that ultimately became the basis of plaintiff’s suit.

The Court viewed this history as more indicative of simple negligence than reasoned discretion. Nonetheless, the Court denied the government’s motion without prejudice, allowing it an opportunity to establish more precisely what the government knew about the contamination, when it knew it, and how its cleanup decisions were based on that knowledge.

This case suggests that at bottom, the discretionary function exception is a smell test. Do the facts showed the government acted intentionally after weighing competing interests, or do they show the government acted carelessly? Though leaving the ultimate decision to another day, this Court seems to be leaning heavily toward the latter.