Opinion
No. 1:20-cv-00009-RGE-SBJ
2020-12-04
GLJ, INC., Plaintiff, v. UNITED STATES of America; United States Department of Defense; and United States Air Force, Defendants.
Stuart J. Dornan, Dornan, Troia, Howard, Breitkreutz & Conway PC LLO, Omaha, NE, for Plaintiff. Eric Anthony Rey, U.S. Department of Justice, Washington, DC, for Defendants.
Stuart J. Dornan, Dornan, Troia, Howard, Breitkreutz & Conway PC LLO, Omaha, NE, for Plaintiff.
Eric Anthony Rey, U.S. Department of Justice, Washington, DC, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
Rebecca Goodgame Ebinger, United States District Judge
I. INTRODUCTION
Plaintiff GLJ, Inc. brings an action under the Federal Tort Claims Act (FTCA) against Defendants United States of America, United States Department of Defense, and United States Air Force. GLJ seeks to recover for damages allegedly caused by Defendants' improper disposal of contaminates and hazardous substances at the Offutt Air Force Base Atlas "D" Missile Facility Site 3. Defendants argue GLJ's claims are barred under the FTCA. Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, the Court grants Defendants' motion.
II. BACKGROUND
The Court accepts the following facts as true for the purpose of analyzing Defendants' motion to dismiss. See Brown v. Medtronic, Inc. , 628 F.3d 451, 459 (8th Cir. 2010) ; see also Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990) (affording the same procedural protections to a non-moving party in review of a Rule 12(b)(1) facial attack and a motion brought under Rule 12(b)(6) ).
From 1958 to 1959, Defendants acquired title and easements to over 460 acres of property near Missouri Valley, Iowa, to establish Offutt Air Force Base Atlas "D" Missile Facility Site 3 (Site 3). Am. Compl. ¶¶ 6–7, ECF No. 16. As part of the operations of Site 3, Defendants used a toxic substance called Trichloroethylene/Trichloroethene (TCE) to flush out the Atlas "D" missile's thrust chamber, oxidizer dome, and "various tubing." Id. ¶ 9. During the process of using TCE, Defendants caused contaminants to be released into the land and water supply surrounding Site 3. Id. ¶¶ 10–13.
In 1965, after the Atlas "D" missile was phased out, Site 3 was reported as excess real property to the General Administration Services. Id. ¶ 15. The Department of the Army took control of Site 3 until it was reported as excess real estate again in 1969. Id. ¶ 16. At that time, the Department of the Army conveyed it to the Department of Health, Education, and Welfare. Id. In 1971, the Department of Health, Education, and Welfare conveyed the Site 3 property by quitclaim deed to Iowa Western Community College. Id. ¶ 17. In 2005, Iowa Western Community College transferred 288.75 acres to the Iowa Western Community College Foundation. Id. ¶ 18. Iowa Western Community College Foundation had the property undergo a Pre-Comprehensive Environmental Response, Compensation and Liability Information System Site Screening Assessment. Id. ¶ 19. The assessment indicated further investigation was needed to determine whether the property was contaminated by Defendants' past activity on Site 3. Id.
On April 14, 2006, Iowa Western Community College Foundation transferred 288.75 acres by warranty deed to GLJ. Id. ¶ 21. GLJ planned to develop the property into a residential community containing fifty-two lots. Id. ¶ 22. GLJ sold thirty out of the fifty-two anticipated lots. Id. In September 2013, the United States Army Corps of Engineers reported there was "potential for contamination by TCE and its breakdown products" at the former Site 3. Id. ¶ 24. In 2015, a remedial investigation confirmed TCE contamination in the soil, groundwater, drinking water, and surface water of the former Site 3, including GLJ's property. Id. ¶ 25. In early January 2018, the Iowa Department of Natural Resources (DNR) sent a letter informing GLJ that water wells could not be installed on twenty-four of its lots due to TCE contamination. Id. ¶ 27. The lots the Iowa DNR identified included two lots previously sold by GLJ. Id. ¶ 28. GLJ has been unable to sell twenty-two of the anticipated fifty-two lots due to the TCE contamination. Id. ¶ 31.
GLJ alleges Defendants and its agents "failed to take appropriate action to prevent and remediate migration of hazardous substances" after the initial contamination of the former Site 3. Id. ¶ 33. GLJ alleges that because of Defendants' failure to act, it has suffered damages from its inability to sell the contaminated lots. Id. ¶ 34.
In accordance with the FTCA, GLJ submitted an administrative tort claim to the United States Air Force on March 20, 2019. Id. ¶ 5. The United States Air Force denied GLJ's claim on October 25, 2019. Id. GLJ then filed an action in this Court on March 2, 2020. Compl., ECF No. 1. GLJ filed an amended complaint on July 2, 2020. ECF No. 16. GLJ alleges claims under Iowa law for negligence, continuous trespass, and continuous nuisance. Id. ¶¶ 38–68. GLJ asserts the Court's jurisdiction is proper under the FTCA, 28 U.S.C. § 1346(b). Id. ¶ 3.
Defendants move to dismiss GLJ's amended complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). ECF No. 18. GLJ resists Defendants' motion. ECF No. 23. The parties did not request oral argument, and the Court declines to order it, finding the parties' briefing adequately presents the issues. See Fed. R. Civ. P. 78(b) ; LR 7(c). Having considered the applicable law and the parties' submissions, the Court grants Defendants' motion.
Additional facts are set forth below as necessary.
III. LEGAL STANDARD
A party may bring a Rule 12(b)(1) motion as either a "factual attack" or a "facial attack," and the difference between the two affects a court's standard of review. Stalley v. Catholic Health Initiatives , 509 F.3d 517, 520–21 (8th Cir. 2007) (citing Osborn , 918 F.2d at 729 n.6 ). A factual attack challenges the existence of subject matter jurisdiction, despite the jurisdictional allegations of the pleadings. Branson Label, Inc. v. City of Branson , 793 F.3d 910, 914–15 (8th Cir. 2015). In analyzing a factual attack, a court may go beyond the pleadings and consider extrinsic evidence to determine whether it has subject matter jurisdiction. Osborn , 918 F.2d at 729 n.6. In contrast, a facial attack challenges the sufficiency of the pleadings. See Titus v. Sullivan , 4 F.3d 590, 593 (8th Cir. 1993). Thus, in analyzing a facial attack to a court's jurisdiction, "the court restricts itself to the face of the pleadings and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Osborn , 918 F.2d at 729 n.6 (citations omitted).
Here, the Defendants bring their Rule 12(b)(1) motion as a facial attack. ECF No. 18-1 at 3. Under this review, a court addresses any deficiencies in the pleadings and must "accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law." Stalley , 509 F.3d at 521. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); accord Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 594 (8th Cir. 2009). "The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.’ " Topchian v. JPMorgan Chase Bank, N.A. , 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders , 199 F.3d 968, 973 (8th Cir. 1999) ). The Court must accept as true all factual allegations in the complaint, but not its legal conclusions. Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955 ). "In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences most favorably to the complainant." United States ex rel. Raynor v. Nat'l Rural Utils. Coop. Fin., Corp. , 690 F.3d 951, 955 (8th Cir. 2012).
A plausible claim for relief "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Plaintiffs must "nudge[ ] their claims across the line from conceivable to plausible, [else] their complaint must be dismissed." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
IV. DISCUSSION
Defendants move to dismiss GLJ's amended complaint for lack of subject matter jurisdiction. Defendants argue two exceptions under the FTCA bar GLJ's claims: the discretionary-function exception and the contract-interference exception. Defendants further argue GLJ cannot meet the FTCA's private liability requirement because Iowa law does not impose tort liability on a prior landowner under the circumstances alleged. Thus, Defendants contend, the FTCA does not waive Defendants' sovereign immunity as to GLJ's action.
The Court notes federal agencies cannot be sued in their own name for claims under the FTCA. See 28 U.S.C. § 2679. "A ‘suit under the [FTCA] lies ... only against the United States.’ " Schrupp v. Brennan , No. 3:18-cv-00095-SMR-HCA, 2019 WL 1198742, at *3 (S.D. Iowa Mar. 13, 2019) (alterations in original) (quoting Myers & Myers, Inc. v. U. S. Postal Serv. , 527 F.2d 1252, 1256 (2d Cir. 1975) ). Thus, the United States is the only proper defendant in this matter. Because GLJ's factual allegations and claims incorporate conduct by the United States Air Force and Department of Defense, the Court will refer to "Defendants" for purposes of this Order.
The Court finds the FTCA's discretionary-function exception bars GLJ's claims. GLJ's claims arise from the Air Force's decisions regarding TCE disposal on Site 3 and its decisions regarding notification to subsequent landowners of TCE contamination. Because the Air Force's decisions were discretionary and susceptible to policy analysis, the United States's sovereign immunity is not waived as to GLJ's claims. Even assuming the discretionary-function exception does not apply, the Court finds GLJ fails to state plausible claims under Iowa law for negligence, continuing trespass, and continuing nuisance. Therefore, GLJ cannot meet the FTCA's private liability requirement. As such, the Court lacks subject matter jurisdiction over GLJ's claims.
A. Discretionary-Function Exception
Defendants argue the FTCA bars GLJ's claims because the conduct at issue falls within the discretionary-function exception. ECF No. 18-1 at 12–19. GLJ contends it does not bear the burden to prove the non-applicability of the discretionary-function exception. ECF No. 23 at 17. However, GLJ contends even if it bears the burden, it has alleged sufficient facts to demonstrate the exception does not apply. Id. at 17–20. The Court first addresses the burden of proof. Then, the Court discusses whether GLJ's claims fall within the discretionary-function exception set forth in 28 U.S.C. § 2680(a).
The waiver of sovereign immunity within the FTCA "is limited ... by several exceptions, one of which removes the effects of some governmental decisions from the waiver in order to protect government policy making." Demery v. U.S. Dep't of Interior , 357 F.3d 830, 832–33 (8th Cir. 2004) aff'd , 829 F.3d 600 (8th Cir. 2016) (citing Dykstra v. U.S. Bureau of Prisons , 140 F.3d 791, 795 (8th Cir. 1998) ; 28 U.S.C. § 2680 ). "The discretionary-function exception precludes suit against the government for harm caused by a government employee's acts if those acts are subject to discretion that is grounded in social, economic, and political policy." Buckler v. United States , 919 F.3d 1038, 1044 (8th Cir. 2019) (internal quotation marks and citation omitted).
First, as to the burden of proof, the Court notes the Eighth Circuit has not directly addressed which party has the burden to prove the applicability, or lack thereof, of the discretionary-function exception. However, other district courts considering Eighth Circuit precedent have concluded the burden likely rests with the plaintiff as the party with the burden to prove jurisdiction. See Compart's Boar Store, Inc. v. United States , 122 F. Supp. 3d 818, 828 n.6 (D. Minn. 2015) (citing Hart v. United States , 630 F.3d 1085, 1089 n.3 (8th Cir. 2011) ; Demery , 357 F.3d at 833 ; Keller Special Tr. v. United States , No. CIV 16-5014, 2017 WL 4785450, at *5 (D.S.D. Oct. 20, 2017) ). The Court finds this reasoning persuasive and concludes GLJ bears the burden to prove the conduct at issue falls outside of the discretionary-function exception.
The Eighth Circuit has set forth a "two-step analysis to determine whether the discretionary-function exception applies." Buckler , 919 F.3d at 1045. First, the Court asks "whether the challenged conduct or omission is truly discretionary, that is, whether it involves an element of judgment or choice instead of being controlled by mandatory statutes or regulations." Id. (internal quotation marks omitted) (quoting Herden v. United States , 726 F.3d 1042, 1046 (8th Cir. 2013) ). Second, if the conduct at issue involves discretion, the Court asks "whether the government employee's judgment or choice was based on considerations of social, economic, and political policy." Id. (internal quotation marks omitted) (quoting Herden , 726 F.3d at 1047 ). "[I]f discretion exists, a presumption arises that the discretion is grounded in policy considerations, and the plaintiff must rebut this presumption." Id. at 1046 (internal quotation marks omitted) (quoting Herden , 726 F.3d at 1048 ). To survive a motion to dismiss relying on the discretionary-function exception, the facts alleged must "support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of [a] regulatory regime." United States v. Gaubert , 499 U.S. 315, 324–25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). If the challenged conduct is governed by mandatory statutes or regulations, the conduct cannot be deemed discretionary. See Buckler , 919 F.3d at 1045.
If the discretionary issue is "susceptible to policy analysis," the discretionary-function exception applies "whether or not [a government employee] in fact engaged in conscious policy-balancing." Herden , 726 F.3d at 1047 (internal quotation marks omitted) (quoting Gaubert , 499 U.S. at 325, 111 S.Ct. 1267 ; C.R.S. by D.B.S. v. United States , 11 F.3d 791, 801 (8th Cir. 1993) ). Further, the exception applies even when the government employee abuses the qualifying discretion. Buckler , 919 F.3d at 1045–46 (citing 28 U.S.C. § 2680(a) ).
First, the Court must determine whether the conduct at issue involved an element of choice or discretion. Id. at 1045. Here, the conduct underlying GLJ's claims is the Defendants' disposal of TCE during the operation of Site 3 in the late 1950s and early 1960s. See ECF No. 16 ¶¶ 7–15 (describing Defendants' use and disposal of TCE as the cause of groundwater contamination on former Site 3). If the Air Force's disposal of TCE was subject to mandatory statutes or regulations during the relevant time period, the disposal cannot be deemed discretionary. See Buckler , 919 F.3d at 1045. GLJ fails to identify any applicable mandatory statutes or regulations governing the disposal of TCE. GLJ cites the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) to allege Defendants were subject to specific directives regarding TCE disposal and notification upon transfer of property. ECF No. 16 ¶ 37. However, CERCLA was not enacted until nearly two decades after the TCE disposal took place on Site 3 and nearly one decade after Site 3 was sold to Iowa Western Community College. See 94 Stat. 2767, as amended, 42 U.S.C. § 9601 et seq. ; ECF No. 16 ¶¶ 7–15, 17 (describing the use of TCE on Site 3 during the late 1950s and early 1960s, and the transfer of the property in 1971). Because CERCLA was not yet enacted when the Air Force disposed of TCE at Site 3, it could not impose mandatory directives. As such, GLJ's allegations as to CERCLA are irrelevant.
GLJ also suggests the Air Force Manual sets out regulations for TCE disposal. See ECF No. 23 at 18–19. However, GLJ merely references the Air Force Manual in its entirety to suggest mandatory regulations exist without pointing to any specifically applicable regulation. This is unpersuasive. The Eighth Circuit has not addressed whether the Air Force's TCE disposal during the relevant time period involved an element of discretion or choice. But, the Eighth Circuit has considered decisions of other circuit courts in determining whether the discretionary-function exception applies to claims against mine inspectors. Cf. Buckler , 919 F.3d at 1046 (noting the decisions of other circuit courts in finding mine inspector's duties were discretionary). And, other Circuit Courts of Appeal have rejected the Air Force Manual as a source for mandatory directives as to TCE disposal and found the Air Force's TCE disposal during the 1950s and 1960s was discretionary. See OSI, Inc. v. United States , 285 F.3d 947, 951–52 (11th Cir. 2002) ; Aragon v. United States , 146 F.3d 819, 823–26 (10th Cir. 1998). These courts reasoned specific mandatory regulations did not cover TCE disposal. Therefore, TCE disposal was subject to the Air Force's discretion. See Aragon , 146 F.3d at 825 (concluding decisions as to TCE disposal were discretionary where none of the sources plaintiffs cited provided "specific, mandatory directives" regarding such disposal); OSI, Inc. , 285 F.3d at 951–52 (determining Air Force manual only provided objectives and principles and thus did not create a "mandatory directive ... overcom[ing] the discretionary[-]function exception to the FTCA"). Following this persuasive authority, and given GLJ's failure to point to any applicable mandatory regulations or statutes regarding TCE disposal during the relevant time period, the Court concludes the TCE disposal at issue was discretionary.
The Court now turns to whether the discretion exercised in disposing of TCE on Site 3 was grounded in policy. Because the disposal of TCE was discretionary, the Court presumes it was subject to policy considerations. See Herden , 726 F.3d at 1047. The onus is on GLJ to rebut the presumption that the disposal of TCE on Site 3 was subject to policy considerations. See id. Several courts have found the military's decisions in regard to waste management during the 1950s and 1960s were grounded in policy considerations. E.g., City of Lincoln v. United States , 283 F. Supp. 3d 891, 904 (E.D. Cal. 2017) ; OSI, Inc. , 285 F.3d at 953 ("The nature of the military's function requires that it be free to weigh environmental policies against security and military concerns."); Aragon , 146 F.3d at 826 ("[T]he Air Force's actions involved policy choices of the most basic kind."); Snyder v. United States , 504 F. Supp. 2d 136, 143 (S.D. Miss. 2007), aff'd , 296 F. App'x 399 (5th Cir. 2008) ("[T]hese types of decisions by the military regarding operations at Camp LeJeune were the kinds of government policy choices the discretionary[-]function exception was designed to shield.").
GLJ argues Defendants failed to exercise due care when disposing of TCE and failed to warn subsequent landowners of possible TCE contamination. See ECF No. 23 at 19. These arguments are insufficient to rebut the presumption that decisions as to TCE disposal and notification were subject to policy analysis. First, as other courts have noted, the Air Force's decisions regarding the TCE disposal during the 1950s and 1960s were subject to the balancing of interests related to national security, safety, and cost, among other factors. See, e.g., City of Lincoln , 283 F. Supp. 3d at 904 ; OSI, Inc. , 285 F.3d at 953 ; Aragon , 146 F.3d at 826 ; Snyder , 504 F. Supp. 2d at 143. Second, courts have consistently found decisions about warning subsequent landowners of TCE contamination upon transferring potentially hazardous property are susceptible to policy analysis. See Snyder , 504 F. Supp. 2d at 143 ("[T]he timing of any disclosures regarding TCE and PCE contamination at Camp LeJeune would also implicate policy concerns that are "grounded in policy discretion." (internal quotation marks and citation omitted)); Ross v. United States , 129 F. App'x 449, 452 (10th Cir. 2005) ("[T]he procedures involved in deciding when and how much to tell plaintiffs about the TCE contamination at the Base ... are grounded in policy discretion."); see also Buckler , 919 F.3d at 1052 (collecting cases describing the government's decision to warn as based on policy considerations). This policy discretion applies to the decisions related to the transfer of Site 3 to Iowa Western Community College as well. Even assuming Defendants failed to exercise due care in disposing of TCE or failed to warn Iowa Western Community College of TCE contamination, "the exception applies [even when] the government employee abuses [the qualifying] discretion." Buckler , 919 F.3d at 1045 (citing 28 U.S.C. § 2680(a) ).
Decisions regarding TCE disposal at Site 3 during the late 1950s and early 1960s were discretionary. Decisions regarding notification of TCE contamination when the property was transferred in 1971 to Iowa Western Community College were also discretionary. Further, such discretion was susceptible to policy analysis, which required considering factors such as national security, safety, and cost, among others. See, e.g., Ross , 129 F. App'x at 451 ("The broader public and military policies at issue allowed the Air Force ‘to place security and military concerns above any other concerns.’ " (quoting Aragon , 146 F.3d at 826 )). Thus, the discretionary-function exception set forth in 28 U.S.C. § 2680(a) bars GLJ's claims under the FTCA. Because Defendants' sovereign immunity is not waived, the Court lacks subject matter jurisdiction over GLJ's claims.
Because the Court finds it lacks subject matter jurisdiction based upon the discretionary-function exception, it need not consider Defendants' alternative argument regarding the contract-interference exception to the FTCA.
B. GLJ's Claims Under Iowa Law
The Court next considers whether GLJ's claims meet the private liability requirement of the FTCA, were they not barred by the discretionary-function exception. The private liability requirement of the FTCA only waives the United States's sovereign immunity "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." 28 U.S.C. § 1346(b)(1). Therefore, if the discretionary-function exception did not apply, GLJ must state viable claims under Iowa law. As such, the Court next considers Iowa law as to negligence, continuous trespass, and continuous nuisance to determine if GLJ states plausible claims.
1. Negligence (Claim 1)
Defendants argue GLJ's negligence claim fails under Iowa law because Defendants, as the prior landowner, did not owe a duty of care to GLJ, as the subsequent owner of the same land. ECF No. 18-1 at 5–6. GLJ asserts Defendants owed a duty to disclose a latent defect in property, and Defendants breached that duty when they failed to disclose the TCE contamination to Iowa Western Community College. ECF No. 26 at 4–7. Defendants reply that even if Iowa law recognizes the latent defect exception, GLJ still fails to state a claim because it seeks only damages for pecuniary loss. ECF No. 24 at 1–2.
To state a claim for negligence under Iowa law a plaintiff must show "the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages." Stotts v. Eveleth , 688 N.W.2d 803, 807 (Iowa 2004) (internal quotation marks and citation omitted). The threshold question of duty is a question of law for the court. Hollingsworth v. Schminkey , 553 N.W.2d 591, 599 (Iowa 1996). Courts "look to legislative enactments, prior judicial decisions, and general legal principals as a source for the existence of a duty." Stotts , 688 N.W.2d at 807. Iowa law imposes a duty of reasonable care on landowners as to lawful entrants upon their property. Koenig v. Koenig , 766 N.W.2d 635, 645–46 (Iowa 2009).
"An owner who sells property loses control of the use of the property and is no longer liable for injury to others on the property." Hollingsworth , 553 N.W.2d at 599 (citing Stalter v. Iowa Res., Inc. , 468 N.W.2d 796, 798 (Iowa 1991) ). "The rationale underlying the general rule that one who has transferred ownership and control is no longer held liable is that the former owner no longer has control." Stalter , 468 N.W.2d at 798. Due to that loss of control, a former owner "may not enter the property to cure any deficiency, and, he/she cannot control the entry of persons onto the property or provide safeguards for them." Id. Thus, prior landowners do not maintain a duty of care to subsequent landowners because they are no longer in control of the property. See id.
Here, Defendants owned the property at issue several decades before GLJ purchased it. See ECF No. 16 ¶¶15–17, 21. Between Defendants' ownership and GLJ's purchase, Iowa Western Community College owned the property for over thirty years. See id. ¶¶ 17–18. Once Defendants sold the property to Iowa Western Community College in 1971, they were no longer in control of the property. It follows that Defendants remained without control of the property decades later when GLJ purchased it. Thus, Defendants, as prior landowners, did not owe a duty to GLJ, a subsequent landowner. Cf. Stalter , 468 N.W.2d at 798.
Section 353 of Restatement (Second) of Torts provides circumstances in which a vendor of land owes a duty to disclose a latent defect to a vendee of land. Restatement (Second) of Torts § 353 (Am. Law Inst. 1965). In Stalter , the Iowa Supreme Court discussed the latent defect exception, but did not adopt it. In fact, the Iowa Supreme Court explicitly refrained from doing so. 468 N.W.2d at 799 ("We need not decide whether the exception stated in section 353 should be available in Iowa."); see also id. at 800–01 ("[E]ven if we were to adopt section 353, the general rule, that when the owner of a premises disposes of that premises he/she is no longer liable for injuries to persons upon the property, applies in this case.").
Contrary to GLJ's assertions, the language in Stalter does not indicate the Iowa Supreme Court accepted the latent defect exception in § 353. Even assuming the latent defect exception is available under Iowa law, the facts of this case nevertheless preclude its application here. Section 353 provides:
(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if (a) the vendee does not know or have reason to know of the condition or the risk involved, and (b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk. (2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.
Restatement (Second) of Torts § 353. The issue with GLJ's claim lies in the exception's express provision in Subsection 1. That provision allows liability for physical harm caused by the condition the vendor of land allegedly fails to disclose to the vendee. GLJ focuses on Subsection 2 of the exception to argue Defendants actively concealed the TCE contamination and are thus liable to GLJ, decades after Defendants sold the property to Iowa Western Community College. In so arguing, GLJ does not address the physical harm requirement set forth in Subsection 1. Here GLJ seeks damages for monetary losses resulting from its inability to sell the residential lots due to contamination of former Site 3. Such monetary loss does not constitute physical harm.
GLJ points to Iowa Code § 558.69 to argue Defendants had a duty to provide a groundwater hazard statement when it sold the property to Iowa Western Community College. Section 558.69 requires sellers provide a groundwater hazard statement to buyers. Defendants sold the property at issue to Iowa Western Community College in 1971. Section 558.69 was not enacted until 1987—over fifteen years after Defendants sold the property to Iowa Western Community College. GLJ points to no law, and the Court is unaware of any law, suggesting § 558.69 should be applied retroactively.
GLJ fails to state a plausible negligence claim under Iowa law. Thus, it cannot meet the FTCA's private liability requirement. As such, the Court lacks subject matter jurisdiction over GLJ's negligence claim.
2. Continuous trespass (Claim 2)
Defendants argue GLJ's continuous trespass claim fails because GLJ cannot show it was in possession of the property at the time the Defendants allegedly disposed of TCE. ECF No. 18-1 at 7–9. GLJ contends the continuing migration of TCE through its property constitutes a continuous trespass under Iowa law. ECF No. 23 at 9–10. The Court considers Iowa law regarding continuing trespass and finds GLJ fails to state a plausible claim.
Trespass results from the "wrongful interference with one's possessory rights in property." Robert's River Rides, Inc. v. Steamboat Dev. Corp. , 520 N.W.2d 294, 301 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas , 683 N.W.2d 111 (Iowa 2004). "One is subject to liability to another for trespass ... if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land[.]" Id. (quoting Restatement (Second) of Torts § 158 (1964) ). A person in possession of land is one who:
(a) is in occupancy of land with intent to control it, or (b) has been but no longer is in occupancy of land with intent to control it, if, after he has ceased his occupancy without abandoning the land, no other person has obtained possession as stated in Clause (a), or (c) has the right as against all persons to immediate occupancy of land, if no other person is in possession as stated in Clauses (a) and (b).
Id. (quoting Restatement (Second) of Torts § 157 (1964) ). " ‘[F]ail[ing] to remove from the land a thing which [a person] is under a duty to remove’ constitutes a trespass." Nichols v. City of Evansdale , 687 N.W.2d 562, 572 (Iowa 2004) (second and third alterations in original) (quoting Restatement (Second) of Torts § 158(c) ). To prevail on a trespass claim, the plaintiff must establish "that at the time of the alleged interference it was in either actual or constructive possession of the property." Robert's River Rides , 520 N.W.2d at 301.
The Iowa Supreme Court has addressed claims for continuing trespass. See Indep. Sch. Dist. of Ionia v. De Wilde , 243 Iowa 685, 53 N.W.2d 256 (1952) ; Nichols , 687 N.W.2d at 567–68. In De Wilde , defendant, an adjacent property owner, laid sewage drain tile across part of the plaintiff-school's property. 53 N.W.2d at 260. The court found, contrary to the defendant's contention, he did not maintain an easement. Id. at 261. Thus, the drain tile "was laid without lawful right." Id. Therefore, the court determined "its presence there [wa]s illegal and constitute[d] a continuing trespass." Id. In Nichols , the Iowa Supreme Court considered whether a previous landowner—the City of Evansdale—was liable for trespass for failing to remove sewer lines after transferring property to the plaintiff. 687 N.W.2d at 567–68. The court determined the City retained possession of the sewer lines after transferring the property. Id. The court concluded the City did not have an easement for the sewer lines. Id. at 570. Because the sewer lines were present on plaintiff's property without legal right, the City was liable to plaintiff for continuous trespass. Id. at 572.
GLJ was not in actual or constructive possession of Site 3 when Defendants disposed of TCE. GLJ did not come into possession of Site 3 until decades later. Unlike in De Wilde , there is no issue of Defendants disposing of TCE on Site 3 without lawful right. Cf. 53 N.W. 2d at 261. Defendants owned Site 3 at the time the Air Force disposed of TCE. Further, unlike in Nichols , Defendants did not maintain any possessory interest in any part of former Site 3 when they transferred the property to Iowa Western Community College in 1971. Cf. 687 N.W.2d at 567–68. The property, in its entirety, was then transferred to GLJ three decades later in 2006. GLJ does not contend that the relevant parties did not intend to transfer the entirety of the property. Cf. id. Defendants do not maintain a possessory interest in property that interferes with GLJ's exclusive possession of the property.
GLJ fails to state a plausible continuous trespass claim under Iowa law. Thus, it cannot meet the FTCA's private liability requirement. As such, the Court lacks subject matter jurisdiction over GLJ's continuing trespass claim.
3. Nuisance (Claim 3)
Defendants argue GLJ's claims for private nuisance must fail because GLJ is a successor landowner. ECF No. 18-1 at 9–11. Defendants argue GLJ's claim for public nuisance fails because it does not allege the contamination interferes with the public use of the property at issue. Id. at 10. The Court considers Iowa law and finds GLJ fails to state plausible claims for continuing private nuisance or public nuisance.
a. Private nuisance
"A private nuisance is an actionable interference with a person's interest in the private use and enjoyment of the person's land." Weinhold v. Wolff , 555 N.W.2d 454, 459 (Iowa 1996) (internal quotation marks omitted) (quoting Bates v. Quality Ready-Mix Co. , 261 Iowa 696, 154 N.W.2d 852, 857 (1967) ). At the foundation of a private nuisance claim is the principle that "[p]arties must use their own property in such a manner that they will not unreasonably interfere with or disturb their neighbor's reasonable use and enjoyment of the neighbor's property." Id. The Iowa legislature has enacted a statutory nuisance claim in Iowa Code § 657.1. Iowa courts interpret the provisions of § 657.1 as supplementing the common law of nuisance. Freeman v. Grain Processing Corp. , 848 N.W.2d 58, 67 (Iowa 2014) (collecting cases).
"Iowa tort law has allowed nuisance claims to recover for environmental contamination for over a century." Bd. of Water Works Trs. of City of Des Moines v. SAC Cty. Bd. of Supervisors , 890 N.W.2d 50, 63 (Iowa 2017) (collecting cases). However, the Iowa Supreme Court has not addressed whether prior landowners may be held liable to subsequent landowners for private nuisance. "If the state supreme court has not decided the issue, [the federal court's] role is to predict how that court would rule." Meyer v. McKenzie Elec. Coop., Inc. , 947 F.3d 506, 509 (8th Cir. 2020). The Iowa Supreme Court has reiterated the principle that liability follows control. Bd. of Water Works , 890 N.W.2d at 62–63 ("A party in control of an activity can take precautions to reduce the risk of harm to others." (citing McCormick v. Nikkel & Assocs., Inc. , 819 N.W.2d 368, 374 (Iowa 2012) )).
Here, GLJ seeks to hold Defendants liable for continuing private nuisance allegedly resulting from the TCE contamination on former Site 3 decades earlier. Defendants maintain no control over GLJ's property. As such, Defendants are not in a position to control the present-day effects of groundwater contamination that occurred in the late 1950s and early 1960s. Given the Iowa Supreme Court's reliance on control to find liability, and the focus of private nuisance claims on the unreasonable interference of neighboring property, the Court determines the Iowa Supreme Court would not extend private nuisance liability to prior landowners. Cf. Bd. of Water Works , 890 N.W.2d at 62–63 ; see also Mel Foster Co. Props. v. Am. Oil Co. (Amoco) , 427 N.W.2d 171, 173 (Iowa 1988) ("Nuisance law is based on the principle that ‘[o]ne must use his own property so that his neighbor's comfortable and reasonable use and enjoyment of his estate will not be unreasonably interfered with or disturbed.’ " (quoting Patz v. Farmegg Products, Inc. , 196 N.W.2d 557, 560 (Iowa 1972) )); Bates , 154 N.W.2d at 857. Thus, the Court finds GLJ fails to state a plausible claim for continuing private nuisance under Iowa law. Thus, it cannot meet the FTCA's private liability requirement. As such, the Court lacks subject matter jurisdiction over GLJ's continuing private nuisance claim.
b. Public nuisance
"The elements of public nuisance are: (1) unlawful or anti-social conduct that (2) in some way injures (3) a substantial number of people." Pottawattamie Cty. v. Iowa Dep't of Envtl. Quality, Air Quality Comm'n , 272 N.W.2d 448, 453 (Iowa 1978). This traditional definition of public nuisance is consistent with Iowa's public nuisance statute. See Iowa Code § 657.1(1) ; see also ChemSol, LLC v. City of Sibley, Iowa , 386 F. Supp. 3d 1000, 1021 (N.D. Iowa 2019), appeal dismissed sub nom. ChemSol, L.L.C. v. City of Sibley , No. 19-2459, 2019 WL 7496612 (8th Cir. Aug. 15, 2019). The "chemical contamination of land can constitute a public nuisance" when it is an "unreasonable interference with a right common to the general public." Interstate Power Co. v. Kansas City Power & Light Co. , 909 F. Supp. 1241, 1273 (N.D. Iowa 1993) (citing Mel Foster Co. Prop. v. Am. Oil Co. , 427 N.W.2d 171, 175 (Iowa 1988) ).
Here, GLJ's claims concern GLJ's private property. GLJ acknowledges its purpose in buying the property was to develop, divide, and sell it as residential lots. Thus, issues as to the public's use of the land are not relevant. GLJ does not identify any other person or entity affected by the alleged contamination. In fact, GLJ's alleged inability to sell the contaminated lots assumes others have not yet been injured by the contaminated land. Thus, GLJ fails to allege the contaminated property at issue has injured a substantial number of persons. For these reasons, GLJ fails to state a plausible claim for public nuisance under Iowa law. Thus, it cannot meet the FTCA's private liability requirement. As such, the Court lacks subject matter jurisdiction over GLJ's public nuisance claim.
V. CONCLUSION
The Court lacks subject matter jurisdiction over GLJ's claims. The Air Force's decisions regarding the disposal of TCE were discretionary. The decisions regarding notification about TCE contamination were also discretionary. These discretionary decisions were susceptible to policy balancing. GLJ fails to rebut the presumption that the relevant decisions were susceptible to policy balancing. Thus, the FTCA's discretionary-function exception bars GLJ's claims. Even assuming the discretionary-function exception does not apply, the Court concludes GLJ nevertheless fails to state plausible claims under Iowa law for negligence, continuing trespass, and continuing nuisance. Thus, GLJ cannot meet the FTCA's private liability requirement.
For the reasons discussed above, the Court grants Defendants' motion to dismiss for lack of subject matter jurisdiction.
IT IS ORDERED that Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 18, is GRANTED .
The parties are responsible for their own costs.