## F I L E D United States Court of Appeals Tenth Circuit 

### APR 11 2003 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT N. HOERY, Plaintiff-Appellant,

v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 01-1100

Appeal from the United States District Court

for the District of Colorado (D.C. No. 99-D-864)
Kevin S. Hannon (Tearle W.T. Harlan, with him on th e briefs) of The Hannon Law Firm LLC, Denver, Colorado, for Plaintiff-Appel lant. Henry T. Miller, Trial Attorney, Torts Branch, Civi l Division, United States Department of Justice, Washington, D.C. (Stuart E. Schiffer, Acting Assistant Attorney General, United States Department of Justi ce, Washington, D.C.; Richard T. Spriggs, United States Attorney, and Gin a Rodriguez, Civil Chief for Office of United States Attorney, Denver, Colorado; J. Patrick Glynn, Director, and David S. Fishback, Assistant Director, Torts Br anch, Civil Division, United States Department of Justice, Washington, D.C., with him on the brief), for Defendant-Appellee.

Before SEYMOUR , McKAY and MURPHY , Circuit Judges.

SEYMOUR , Circuit Judge.-2-

Robert N. Hoery sued the United States under the Fe deral Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-80 (FTCA), seeking damages for alleged groundwater contamination on his property caused bythe wrongful discharge of chemicals at Lowry Air Force Base in Colorado. The government moved to dismiss under F ED
. R. C IV
. P. 12(b)(1) for lack of subject matter jurisdiction, contending Mr. Hoery had failed to file a timely ad ministrative claim with the Air Force before bringing this action. The district co urt granted the motion. On appeal, we certified two questions of controlling s tate law to the Colorado Supreme Court. That court having now answered the questions, we reverse and remand for further proceedings.

I Defendant, the United States government, operated t he Lowry Air Force Base at property located in the East Montclair neig hborhood of Denver, Colorado, between the 1940s and September 1994. During this time, the government disposed of trichloroethylene (TCE) and other toxic chemicals on its property. These releases created plumes of toxic pollution un derneath property extending several miles north of Lowry. The government stopp ed using Lowry as an active military base in September 1994 and deposited no ne w TCE onto the property after that time.-3-

Mr. Hoery is a property owner who lives seven block s north of Lowry within the area that is above the underground toxic plumes. In 1998, Mr. Hoery brought this action under the FTCA, asserting claim s against the United States for, inter alia, negligence, continuing trespass an d continuing nuisance. Mr. Hoery alleges that the government’s releases of TCE were negligent and caused contamination of his property, including groundwate r, soil, and a well. He presented evidence that TCE remains on his propertyunabated by the government and continues to enter the groundwater and soil, an d that additional TCE continues to migrate onto his property. The damage s he seeks include damages for diminution in property value and loss of the us e of his well, interference with use and enjoyment of the property, and the cost of cleanup and restoration. A two-year statute of limitations applies to FTCA c laims. 28 U.S.C. § 2401(b). Because the FTCA is a waiver of sovereignimmunity, timeliness is a prerequisite for subject matter jurisdiction. Casias v. United States , 532 F.2d 1339, 1340 (10th Cir. 1976). The district court gr anted the government’s motion to dismiss all of Mr. Hoery’s claims for lack of su bject matter jurisdiction. The court first held that any permanent tort claims wer e time-barred because Mr. Hoery knew or should have known his property might be contaminated by TCE from Lowry as of May 1995. Mr. Hoery does not appe al that ruling. The court also held that Mr. Hoery failed to state a claim fo r continuing trespass or nuisance-4-

under either federal or Colorado law, rejecting Mr. Hoery’s assertion that he had a timely claim for a continuing wrong because the gov ernment failed to take remedial action to remove contaminated groundwater that continues to migrate onto and through his property. In this regard, the court held that the only “wrongful act” alleged by Mr. Hoery was the actual release of TCE by the government, and that no continuing tort was allegedbecause the government’s direct acts ended as of September 1994. In so hold ing, the court ruled that neither migration of TCE to nor presence of TCE on Mr. Hoery’s property after September 1994 constitutes a continuing trespass ornuisance under Colorado or federal law.

II Federal law governs the point at which a cause of a ction accrues under the
FTCA. Newcomb v. Ingle , 827 F.2d 675, 678 (10th Cir. 1987) (“federal law controls questions relating to accrual of federal c auses of action”). For permanent torts, the claim accrues the later of when the inju ry first occurs or when the plaintiff learned or should have learned of his inj ury and its cause. See , e.g. , Kronisch v. United States , 150 F.3d 112, 121 (2d Cir. 1998); Arvayo v. United
States , 766 F.2d 1416, 1419 (10th Cir. 1985). For contin uing torts, however, the claim continues to accrue as long as tortious condu ct continues, although the-5-

plaintiff’s recovery is limited by the statute of l imitations to the two-year period dating back from when the plaintiff’s complaint was filed. United States v. Hess , 194 F.3d 1164, 1176-77 & n.12 (10th Cir. 1999); see also Page v. United States , 729 F.2d 818, 821 & n.23 (D.C. Cir. 1984) (limitati ons period begins to run as of the last tortious act alleged). If Mr. Hoery presented continuing tort claims, ther efore, those claims would continue to accrue for statute of limitations purposes and Mr. Hoery would be permitted to seek damages for two years prior to the date on which he filed his administrative complaint with the United States gov ernment. See Hess , 194 F.3d at 1177. Under the FTCA, the government is liable “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, and “in accordance with the law of the place where the act or omission occurred,” id . § 1346(b)(1). “Thus, we resolve questions of liability under the FTCA in accordance with the law of the state where the alleged tortious activity took place.” Franklin v. United States , 992 F.2d 1492, 1495 (10th Cir. 1993). Mr. Hoery contends he asserted continuing trespass and nuisance claims under Colorado law and the district court erred in ruling that the only wrongful conduct alleged was the government’s direct act of releasing TCE on its property. Under his theory, the migration of chemicals to his property and their continued presence there are continuing wrongful acts because the government caused them-6-

through its releases of TCE and should be responsib le until it removes the chemicals. As wrongful acts that continue to cause harm, he asserts, the migration and presence of chemicals should be consi dered continuing torts. After reviewing Colorado law, we determined that no Colorado case indicated how the Colorado Supreme Court would rule on the state law questions before us. We therefore abated these proceedings a nd certified the following state law questions to the Colorado Supreme Court. 1. Does the continued migration of toxic chemicals f rom the government’s property to plaintiff’s property, allegedly caused by chemical releases by the government, constitute continuing trespass and/ or nuisance under Colorado law? 2. Does the ongoing presence of those toxic chemical s on plaintiff’s property constitute continuing trespass and/or nuisance unde r Colorado law? The Colorado Supreme Court has now issued an opinio n answering both of the questions in the affirmative. See In re Hoery v. United States , 64 P.3d 214 (Colo. 2003). That court held that “Colorado law r ecognizes the concepts of continuing trespass and nuisance for those propertyinvasions where a defendant fails to stop or remove continuing, harmful physica l conditions that are wrongfully placed on a plaintiff’s land.” Id. at *6 (publication page not yet available). The court rejected the government’s po sition that the claims at issue-7-

here cannot be continuing torts because any wrongfu l conduct ceased when the government stopped operating Lowry as a military ba se. The court instead agreed with those jurisdictions holding that “even if the condition causing the contamination has ceased, provided the contaminatio n remains on the plaintiff’s land, . . . the defendant remains liable for a cont inuing tort.” Id. Accordingly, the court held that “the ongoing presence and conti nued migration of toxic chemicals originally emanating from Lowry constitut e a continuing trespass and nuisance . . . .” Id. at *7.

III Following the issuance of the Colorado Supreme Court’s opinion, the government submitted supplemental authority calling our attention to two decisions issued by this court after oral argument in this case. The government argues that these cases are relevant to the disposi tion of this appeal and require that we not apply the Colorado Supreme Court’s ruli ng. We disagree.
In Plaza Speedway Inc. v. United States , 311 F.3d 1262 (10th Cir. 2002), the operator of a dirt racetrack adjacent to an Army airfield in Kansas brought an action under the FTCA and the Comprehensive Environ mental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. , contending the Army had contaminated the racetrack’ s groundwater and soil.-8-

Significantly, there is no indication in that opini on that the plaintiff asserted a continuing tort theory under Kansas law. We instea d addressed whether to apply a discovery rule that provides a claim does not acc rue until the injured party knows of both the existence and the cause of the in jury, rather than the general rule that a FTCA claim accrues at the time of the p laintiff’s injury. Although we opted for the more generous discovery rule, the gov ernment asserts we also focused on Congressional intent that “the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Id. at 1267 (quoting Arvayo , 766 F.2d at 1418-19). In addition, the government points to our opinion i n Dahl v. United States , 319 F.3d 1226 (10th Cir. 2003), in which the plaint iffs sought recovery under the FTCA because the government had destroyed a stockpi le of mineral ore on their mining claim. We found no reason to depart from th e generally applicable injury rule, and we rejected plaintiffs’ argument that all FTCA claims are governed by the discovery rule. Id. at 1229. As in Plaza Speedway , the plaintiff did not assert a continuing tort. The government contends these cases support its arg ument that while a state may fashion its law so a plaintiff may avoid a statute of limitations by invoking a continuing tort theory, state law cannotbe used to thwart the Congressional objective of a uniform statute of lim itations applicable to FTCA-9-

actions. As we have explained, however, the cases are inapposite because neither addresses accrual of a cause of action in the conte xt of a continuing tort. Moreover, the government’s position is flawed on tw o additional grounds. First, continuing torts do not avoid the statute of limitations; rather, such torts remain timely not because the limitation period is tolled but because the cause of action continues to accrue. Second, the government’s argu ment reads out of the FTCA the requirement, set out in two separate sections, that the liability of the United States for tort damages is to be the same as that o f private persons in like circumstances. See 28 U.S.C. § 2674 (“[t]he United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances”); 28 U.S.C. § 1346(b)(1) (imposing t ort liability on the United States “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”). Congressional intent that stale claims be avoided i s not frustrated when, under applicable state law, the wrongful conduct co ntinues. We do not agree that this result is contrary to Congressional intent reg arding the application of the limitation period in view of the incorporation of s tate substantive law into the FTCA and the corresponding inevitable range of fact ors relevant to accrual. Finally, the two-year statute of limitations does r un uniformly on a continuing tort-10-

because damages are recoverable for only the two ye ars prior to the time the plaintiff files the required administrative complai nt.

IV The Colorado Supreme Court’s opinion makes clear th at Mr. Hoery has asserted continuing tort claims. Because his admin istrative complaint was timely filed with respect to those claims, the district co urt has subject matter jurisdiction over this FTCA action. Accordingly, we REVERSE the district court’s dismissal
of the action and REMAND for further proceedings.