Emily Nanouk v. United States, 974 F.3d 941

Plaintiff Emily Nanouk owns a 160-acre Alaska Native allotment accessed by a trail that ran through the North River Radio Relay Station, a former Air Force (White Alice) site where PCBs were used and later found in soil.
The White Alice sites were closed in the 1970s; Air Force and Army Corps remediation began sporadically in the 1980s and resumed at North River in 1990, with major cleanup of Nanouk’s allotment completed by 2005.
At some point between the early 1980s and 2003, PCB-contaminated soil from a hot spot at the station migrated along the trail onto Nanouk’s property via vehicles, contaminating soil near her cabin; PCBs were detected on her land in 2003 at very high concentrations.
Nanouk sued under the FTCA (trespass and nuisance, money damages), alleging three government failures: (1) permitting PCB dumping during operation (1957–1978); (2) abandoning the site after closure (1978–1990); and (3) failing to timely discover and remediate the hot spot after remediation efforts resumed in 1990.
The district court dismissed for lack of subject-matter jurisdiction under the FTCA discretionary function exception; the Ninth Circuit affirmed in part and reversed in part—holding the exception bars claims based on the first two alleged failures but that the government has not shown the exception covers the post-1990 remediation delay, so the case was vacated and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Liability for PCB disposal during station operation (negligent supervision of contractors)	Nanouk: Air Force negligently supervised contractors and failed to prevent PCB dumping on the ground.	U.S.: Supervision choices were discretionary; no mandatory rule required specific action, so discretionary-function exception applies.	Held: Discretionary-function exception applies; supervision involved judgment and policy choices and is shielded.
Liability for abandonment of site (1978–1990 delay in securing/removing PCB barrels)	Nanouk: Air Force/Army Corps abandoned site and delayed cleanup, causing leakage and contamination.	U.S.: Prioritization of remediation under DERP and triage among many sites was a policy decision protected by the exception.	Held: Discretionary-function exception applies; prioritization and resource-allocation constituted protected policy judgments.
Liability for delay in discovering/remediating the hot spot after 1990	Nanouk: Once remediation efforts were directed to North River in 1990, the government negligently failed to detect and remove the hot spot promptly, causing contamination of her allotment.	U.S.: Delay resulted from resource allocation/prioritization and thus is protected discretionary conduct.	Held: Government failed to show the delay was grounded in policy considerations; discretionary-function exception does not clearly apply on the present record—claim survives remand.

Berkovitz v. United States, 486 U.S. 531 (1988) (two-step discretionary-function test; non-discretionary where statute/regulation prescribes specific action)
Gaubert v. United States, 499 U.S. 315 (1991) (discretionary-function protects decisions susceptible to policy analysis)
Varig Airlines v. United States, 467 U.S. 797 (1984) (courts should not second-guess policy-based governmental decisions)
Logue v. United States, 412 U.S. 521 (1973) (FTCA excludes liability for independent contractors; liability must be predicated on government employees)
Camozzi v. Roland/Miller & Hope Consulting Group, 866 F.2d 287 (9th Cir. 1989) (distinguishes failures to effectuate specific contractual/oversight duties from protected policy choices)
Chadd v. United States, 794 F.3d 1104 (9th Cir. 2015) (government bears burden to establish discretionary-function exception applies)
Gonzalez v. United States, 814 F.3d 1022 (9th Cir. 2016) (de novo review of discretionary-function jurisdictional rulings)