Ninth Circuit Court rules in favor of Unalakleet woman

The Ninth Circuit Court of Appeals has ruled in favor of a Unalakleet woman in a decision handed down early in September. Emily Nanouk brought a lawsuit against the U.S Federal Government in 2015 over the PCB contamination of her Native allotment by the United States Air Force. The Federal District Court in Anchorage dismissed the suit, saying the Air Force was totally protected by federal statutes. As Mrs. Nanouk and members of her family suffered from severe health problems over the years they did not give up their pursuit of justice. They believe their ailments are at least in part caused by exposure to PCBs.

Polychlorinated biphenyl, PCB for short, is an organic compound which has been widely used for industrial purposes such as in transformers, capacitors, switches and other devices. The International Agency for Research on Cancer has identified PCBs as definite carcinogens for humans. They are still being used despite their production and importation having been banned in the USA in 1978. The government set standards for the handling and disposal of the chemicals. Still, PCB contamination in the USA is widespread. The source of the PCBs which have contaminated Emily Nanouk’s allotment is the North River Radio Relay Station, NRRRS, a link in the White Alice system operated by the Air Force until it was closed in 1978.

Mrs. Nanouk noticed strange smells and dead vegetation along the trail between the station and her allotment back in 2003. Although this was 25 years after the closure of the Air Force facility, PCBs have a very long life and remain dangerous for years. She reported the problem to the Native Village of Unalakleet and they in turn reported it to the Air Force. Air Force technicians from Elmendorf Air Force Base’s environmental restoration division traveled to Unalakleet to examine the site in July of 2003 and determined a so called “hot spot” was contaminated with PCBs left behind years ago. The levels of contamination measured 40,000 times that which is considered to be safe for humans. At some point between the closure of the Air Force facility and 2003 the contamination had migrated onto Mrs. Nanouk’s allotment. The hot spot is now encircled with fences warning of hazardous materials.

An investigative article by The Nome Nugget in late August of 2003 alerted Mrs. Nanouk to the dangers of exposure to PCBs. Once notified of the contamination the Air Force was quick to react and do what they could to clean it up. They removed soil both from the actual station as well as from Nanouk’s allotment, completing the cleanup in 2005. Levels of PCBs were down to less than one part per million, which is considered to be safe for humans. Yet the hot spot is still fenced off, some 17 years after it was discovered.

In 2015 Mrs. Nanouk filed a lawsuit against the federal government for trespass and nuisance. She sought a financial award for the government’s negligence. Despite the assurances that her property is safe she no longer feels it is safe for traditional subsistence activities. And the health problems she and members of her family have endured over the years have exacerbated her feelings of danger.

In the lawsuit Mrs. Nanouk contends that the Air Force failed to prevent PCBs from being dumped onto the ground. Secondly, after the Air Force abandoned the site in 1978 they left barrels of PCBs which leaked into the soil. And third, while the Air Force and the Army Corps began cleanup efforts of the North River Station in 1990 they overlooked the hot spot on her allotment.

The government filed a motion to dismiss Nanouk’s lawsuit. The legal explanation was that there was a lack of subject matter jurisdiction on the ground that the discretionary function exception bars her claims.

The district court was in agreement and the claim was dismissed.

Nanouk’s appeal challenged the district court’s conclusion that her claims were barred by the discretionary function exception. The exception guarantees the government immunity from any claim based on the actions of a federal agency or an employee of the government. The Ninth Court of Appeals ruled the discretionary function exception does protect the government during the operation of the North River Station as well as in its abandonment of the property. But the discretionary function exception does not protect the government in its failure to identify and remediate the hot spot after 1990. So the case goes back to District Court for further proceedings.