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 the briefs) of The Hannon

Law Firm LLC, Denver, Colorado, for Plaintiff-Appellant.

Henry T. Miller, Trial Attorney, Torts Branch, Civil Division, United States

Department of Justice, Washington, D.C. (Stuart E. Schiffer, Acting Assistant

Attorney General, United States Department of Justice, Washington, D.C.;

Richard T. Spriggs, United States Attorney, and Gina Rodriguez, Civil Chief for

Office of United States Attorney, Denver, Colorado; J. Patrick Glynn, Director,

and David S. Fishback, Assistant Director, Torts Branch, 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.
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Robert N. Hoery sued the United States under the Federal Tort Claims Act,

28 U.S.C. §§ 1346(b)(1), 2671-80 (FTCA), seeking damages for alleged

groundwater contamination on his property caused by the wrongful discharge of

chemicals at Lowry Air Force Base in Colorado. The government moved to

dismiss under FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction,

contending Mr. Hoery had failed to file a timely administrative claim with the Air

Force before bringing this action. The district court granted the motion. On

appeal, we certified two questions of controlling state 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 the Lowry Air Force

Base at property located in the East Montclair neighborhood 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 underneath property extending

several miles north of Lowry. The government stopped using Lowry as an active

military base in September 1994 and deposited no new TCE onto the property

after that time.
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Mr. Hoery is a property owner who lives seven blocks north of Lowry

within the area that is above the underground toxic plumes. In 1998, Mr. Hoery

brought this action under the FTCA, asserting claims against the United States

for, inter alia, negligence, continuing trespass and continuing nuisance. Mr.

Hoery alleges that the government’s releases of TCE were negligent and caused

contamination of his property, including groundwater, soil, and a well. He

presented evidence that TCE remains on his property unabated by the government

and continues to enter the groundwater and soil, and that additional TCE

continues to migrate onto his property. The damages he seeks include damages

for diminution in property value and loss of the use 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 claims. 28 U.S.C. §

2401(b). Because the FTCA is a waiver of sovereign immunity, timeliness is a

prerequisite for subject matter jurisdiction. Casias v. United States, 532 F.2d

1339, 1340 (10th Cir. 1976). The district court granted the government’s motion

to dismiss all of Mr. Hoery’s claims for lack of subject matter jurisdiction. The

court first held that any permanent tort claims were 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 appeal that ruling. The court

also held that Mr. Hoery failed to state a claim for continuing trespass or nuisance
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under either federal or Colorado law, rejecting Mr. Hoery’s assertion that he had a

timely claim for a continuing wrong because the government 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 alleged because the government’s

direct acts ended as of September 1994. In so holding, 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 or nuisance under Colorado or

federal law.

II

Federal law governs the point at which a cause of action accrues under the

FTCA. Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987) (“federal law

controls questions relating to accrual of federal causes of action”). For permanent

torts, the claim accrues the later of when the injury first occurs or when the

plaintiff learned or should have learned of his injury 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 continuing torts, however, the

claim continues to accrue as long as tortious conduct continues, although the
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plaintiff’s recovery is limited by the statute of limitations 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) (limitations period begins to run as of

the last tortious act alleged). 

If Mr. Hoery presented continuing tort claims, therefore, 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 government. 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
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through its releases of TCE and should be responsible until it removes the

chemicals. As wrongful acts that continue to cause harm, he asserts, the

migration and presence of chemicals should be considered 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 and certified the following

state law questions to the Colorado Supreme Court.

1. Does the continued migration of toxic chemicals from 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 chemicals on plaintiff’s property

constitute continuing trespass and/or nuisance under Colorado law?

The Colorado Supreme Court has now issued an opinion 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 recognizes the concepts of

continuing trespass and nuisance for those property invasions where a defendant

fails to stop or remove continuing, harmful physical conditions that are

wrongfully placed on a plaintiff’s land.” Id. at *6 (publication page not yet

available). The court rejected the government’s position that the claims at issue
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here cannot be continuing torts because any wrongful conduct ceased when the

government stopped operating Lowry as a military base. The court instead agreed

with those jurisdictions holding that “even if the condition causing the

contamination has ceased, provided the contamination remains on the plaintiff’s

land, . . . the defendant remains liable for a continuing tort.” Id. Accordingly,

the court held that “the ongoing presence and continued migration of toxic

chemicals originally emanating from Lowry constitute 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 disposition of this appeal and require

that we not apply the Colorado Supreme Court’s ruling. 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 Environmental Response,

Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq.,

contending the Army had contaminated the racetrack’s groundwater and soil. 
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Significantly, there is no indication in that opinion that the plaintiff asserted a

continuing tort theory under Kansas law. We instead addressed whether to apply

a discovery rule that provides a claim does not accrue until the injured party

knows of both the existence and the cause of the injury, rather than the general

rule that a FTCA claim accrues at the time of the plaintiff’s injury. Although we

opted for the more generous discovery rule, the government 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 in Dahl v. United States,

319 F.3d 1226 (10th Cir. 2003), in which the plaintiffs sought recovery under the

FTCA because the government had destroyed a stockpile of mineral ore on their

mining claim. We found no reason to depart from the 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 argument 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 cannot be used to thwart the

Congressional objective of a uniform statute of limitations applicable to FTCA
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actions. As we have explained, however, the cases are inapposite because neither

addresses accrual of a cause of action in the context of a continuing tort. 

Moreover, the government’s position is flawed on two 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 argument 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 of 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 tort 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 is not frustrated when,

under applicable state law, the wrongful conduct continues. We do not agree that

this result is contrary to Congressional intent regarding the application of the

limitation period in view of the incorporation of state substantive law into the

FTCA and the corresponding inevitable range of factors relevant to accrual. 

Finally, the two-year statute of limitations does run uniformly on a continuing tort
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because damages are recoverable for only the two years prior to the time the

plaintiff files the required administrative complaint.

IV

The Colorado Supreme Court’s opinion makes clear that Mr. Hoery has

asserted continuing tort claims. Because his administrative complaint was timely

filed with respect to those claims, the district court has subject matter jurisdiction

over this FTCA action. Accordingly, we REVERSE the district court’s dismissal

of the action and REMAND for further proceedings.