I had thought that this went out, but some did not get it. If it's a duplicate - sorry. Daily Development for Monday, February 23, 2004 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ENVIRONMENTAL LAW; FEDERAL TORT CLAIMS ACT; CONTINUING; TRESPASS;: Claim under Federal Tort Claims Act for contamination of property was barred by two-year limitations period where owner's heirs had knowledge of the contamination and, although the harm was continuing, the conduct causing the harm was not. Cannon v. U.S., 338 F.3d 1183 (10th Cir. 2003). In 1945, the United States Army conducted weapons testing on Owner's property in Utah. Although the Army promised to clean up the property, it failed to do so. In 1994 the Army sent the Owner's Heirs a letter of concern regarding the contamination. In August 1994, Owner's Heirs attended a public gathering and obtained a fact sheet concerning the contamination. A draft report was issued in August 1996, which rejected clean-up of the site, estimated at approximately $12.3 million. In April 1998, Owner's Heirs sued for damages. The Army moved for summary judgment based on the two-year statute of limitations of the Federal Tort Claims Act (FTCA), 18 U.S.C.S. 2671 et seq., and the doctrine of sovereign immunity. The district court concluded that the contamination constituted a continuing trespass and nuisance. On appeal, the Army argued that the applicable two-year statute of limitations period began to run in 1994 when the Owner's Heirs obtained the fact sheet. Owner's Heirs argued that the period did not accrue until 1996 upon release of the report. The Court of Appeals held that the general rule concerning accrual of an FTCA claim, outside medical malpractice, is the date of the injury's occurrence. The discovery rule applies only in exceptional cases, where a reasonably diligent plaintiff could not immediately know of the injury and its cause. The Court of Appeals found that even if the discovery rule applied, it would not toll the limitations period beyond 1994 when the Owner's Heirs had received the letter and the fact sheet. At that time, Owner's Heirs possessed enough information to commence the running of the limitations period. Owner's Heirs also sought to characterize the tort as continuing. The FTCA mandates application of state law to resolve questions of substantive liability and to determine how state law would characterize the tort. Utah state courts look to the act constituting the trespass, and not to the harm resulting from the act to determine whether a trespass or nuisance is permanent and continuing. Under Utah law, a continuous tort requires recurring conduct and is not established by the continuation of harm caused by previous but completed conduct. The Government's failure to remove the contamination does not constitute a continuing trespass or nuisance under Utah law. Comment 1: Is this really the Utah rule? In Breiggar Properties v. H.E. Davis & Sons, 52 P.3d 1133 (Utah 2002), the DIRT DD for 2/20/02, the Utah Supreme Court held that Comment 2: Note that the approach as to continuing trespass here is not the uniform approach. The DIRT DD for 9.13.96 discussed Mangini v. Aerojet-General Corp., 31 Cal. Rptr. 2d 272 (Cal. 1996), which found that a continuing nuisance occurred where pollution remained on property when it practically could be removed. Other California cases, before and after Mangini, have chased this issue around several barns. The relative simplicity of the Utah approach certainly gives one fewer headaches, but is it really fair? After reversing and directing a result for the government here, the court spent quite a bit of time hand wringing about the injustice of it all. Comment 2: In Breiggar Properties v. H.E. Davis & Sons, 52 P.3d 1133 (Utah 2002), the DIRT DD for 2/20/02, the Utah Supreme Court specifically considered the Mangini rule and rejected it for Utah, holding that the question is whether specific acts of trespass are still going on or are likely to occur, and not whether the injury is abatable. It will be interesting to see whether the federal courts, applying the FTCA, indeed will grant similarly situated plaintiffs in different states different treatment on matters like this. Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. 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