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Aragon v. United States

Citation: 28 ELR 21344
No. 97-2047, 146 F.3d 819/(10th Ccir., 06/23/1998)

The court holds that the discretionary function exception to the Federal Tort Claims Act (FTCA) bars landowners' claims that the military's disposal of wastewater at the Walker Air Force Base near Roswell. New Mexico, contaminated their residential wells with trichloroethylene (TCE). The court first holds that the U.S. Air Force's decision on how it disposed of its TCE-contaminated wastewater from the aircraft washdown operations was discretionary. The landowners cannot rely on Exec. Order No. 10014 to establish subject matter jurisdiction under the FTCA. Although the Executive Order promoted a policy of cooperation with state and local water authorities, it contained no specific, mandatory directives for the Air Force to follow in disposing its wastewater from aircraft washdown operations. In addition, nothing in Air Force Manual 85-14 usurps Air Force personnel discretion to determine how to dispose of TCE-contaminated wastewater. There are no specific, mandatory directives in the particular sections cited by the landowners. Rather, those sections provide Air Force personnel discretion in their decision on how to dispose of TCE. Likewise, Air Force Manual 88-11 left much discretion to those implementing its recommendations. Although it articulates that the protection of water resources is the objective of industrial waste disposal, an objective alone does not equate to a specific, mandatory directive. Moreover, the landowners provided no evidence that the Air Force did not consider this objective in its aircraft washdown operations.

The court also holds that the Air Force's disposal of TCE-contaminated wastewater at the Walker Air Force Base was the kind of activity the discretionary function was designed to shield. The record sufficiently demonstrates that operational decisions at the base, including industrial waste disposal decisions, were subject to public policy analysis due to the military exigencies at the time.

[A prior decision in this litigation is published at 27 ELR 20799.]

Counsel for Plaintiffs
Richard A. Blenden
Blenden Law Firm
208 W. Stevens St., Carlsbad NM 88220
(505) 887-2071

Counsel for Defendant
S. Michael Scadron
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Tacha and Briscoe, JJ.