Jump to Navigation
Jump to Content

Aragon v. United States

ELR Citation: 27 ELR 20799
Nos. CIV 94-592 JP/LCS, 950 F. Supp. 321/(D.N.M., 12/27/1996)

The court holds that the discretionary function exception bars an action against the U.S. government under the Federal Tort Claims Act for contamination of local water wells allegedly caused by wastewater discharges from a former Air Force Base near Roswell, New Mexico. The court finds that the Air Force had discretion regarding cooperation with state and local pollution control authorities and regarding its handling and disposal of industrial wastewater. Executive Order No. 10014 directs the various arms of the executive branch to cooperate with state and local authorities to ensure that waste is disposed of in a manner conforming with local water pollution programs and to take such action "as may be practicable." The order is silent, however, on what might be considered practicable, leaving that determination to the judgment and discretion of the various agency and department heads. Also, Air Force regulations provided for discretion in cooperating with state and local pollution control authorities. Nothing in those regulations requires specific mandatory procedures for handling industrial waste. The court further finds that the Air Force's decisions regarding cooperation with state pollution control authorities were grounded in public policy considerations. Air Force regulations made clear that security and military readiness concerns were the primary guides of all decisionmaking. The court rejects plaintiffs' assertion that the Air Force had no discretion to disregard New Mexico law, which regulates the use and contamination of groundwater. Under the discretionary function analysis, the crucial inquiry is whether there were any federal statutes or regulations mandating specific conduct.

Counsel for Plaintiffs
Gary A. O'Dea
184 Tierra Encantada, Corrales NM 87048
(505) 898-2802

Counsel for Defendants
John W. Zavitz, Ass't U.S. Attorney
U.S. Attorney's Office
625 Silver Ave. SW, Albuquerque NM 87102
(505) 766-3341