Case: 19-35116, 09/04/2020, ID: 11813322, DktEntry: 44-1, Page 1 of 20
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`EMILY NANOUK,
`Plaintiff-Appellant,
`
`
`
`
`
`No. 19-35116
`
`D.C. No.
`3:15-cv-00221-RRB
`
`
`OPINION
`
`v.
`
`
`UNITED STATES OF AMERICA,
`Defendant-Appellee.
`
`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
`
`
`
`
`

`

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`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.
`
`

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`NANOUK V. UNITED STATES
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`3
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`
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`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
`
`

`

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`NANOUK V. UNITED STATES
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`4
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`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
`
`

`

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`NANOUK V. UNITED STATES
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`
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`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
`
`

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`NANOUK V. UNITED STATES
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`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.
`
`thereafter undertook extensive
`The Air Force
`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
`
`

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`NANOUK V. UNITED STATES
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`
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`function exception bars Nanouk’s claims. The district court
`agreed and dismissed Nanouk’s action.1
`
`7
`
`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 United States’ sovereign
`The FTCA waives
`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.
`
`

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`NANOUK V. UNITED STATES
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`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).
`
`

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`NANOUK V. UNITED STATES
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`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
`
`

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`NANOUK V. UNITED STATES
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`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).
`
`

`

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`NANOUK V. UNITED STATES
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`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
`
`

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`NANOUK V. UNITED STATES
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`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.
`
`

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`NANOUK V. UNITED STATES
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`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.
`
`

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`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
`
`

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`NANOUK V. UNITED STATES
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`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).
`
`15
`
`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
`
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`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
`
`

`

`Case: 19-35116, 09/04/2020, ID: 11813322, DktEntry: 44-1, Page 17 of 20
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`17
`
`NANOUK V. UNITED STATES
`
`
`
`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.
`
`

`

`Case: 19-35116, 09/04/2020, ID: 11813322, DktEntry: 44-1, Page 18 of 20
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`NANOUK V. UNITED STATES
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`18
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`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