Nanouk v. The United States Air Force et al

Filing 45

ORDER Regarding Cross-Motion for Summary Judgment at Docket 42 . (CC: DQA)(Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EMILY NANOUK,
Case No. 3:15-cv-00221-RRB
Plaintiff,
ORDER RE: MOTION AT DOCKET 42
vs.
THE UNITED STATES OF AMERICA,
Defendant.

I.

PENDING MOTION
At Docket 30 Defendant United States of America (hereinafter “Government”) has

moved for summary judgment on the grounds that the action is barred by the applicable
statute of limitations. Plaintiff Emily Nanouk has opposed the motion,1 to which the
Government has replied.2 At Docket 42 Nanouk has moved for a continuance to allow for
further discovery on the statute of limitations, which the Government has opposed. 3
II.

PROCEDURAL BACKGROUND/ISSUE PRESENTED
This action, brought under the Federal Tort Claims Act (“FTCA”),4 arises out of the

operation of the North River Relay Station (“North River Station”) located approximately
700 feet North of a 160-acre Native Allotment owned by Nanouk during the period 1958

1

Docket 35.

2

Docket 43.

3

Id.

4

28 U.S.C. §§ 1346, 2671–80.

ORDER RE; MOTION AT DOCKET 42
Nanouk v United States, 3:15-cv-00221-RRB - 1

through 1978. It is undisputed that operations at the North River Station resulted in the
release of contaminants into the soil on Nanouk’s property, including polychlorinated
biphenal (“PCB”) and trichlorobenzene. It is also undisputed that the Government
conducted clean-up operations on Nanouk’s Native Allotment.
In her Second Amended Complaint Nanouk contends that the contamination, which
extended into her Native Allotment, makes a cabin erected thereon uninhabitable and
seeks compensation in an unspecified amount as a result thereof. The Government has
not answered the Second Amended Complaint.
The Government initially moved to dismiss the Complaint for lack of jurisdiction and
that the matter was time-barred for failure to file an administrative tort claim within two
years,5 which Nanouk opposed.6 After filing its Motion to Dismiss the Government moved
to stay the proceeding, including discovery, pending resolution of the Motion to Dismiss.7
Nanouk opposed the motion8 and the Government replied.9 The Court granted the
Government’s motion to stay in part: staying discovery pending a decision on the Motion
to Dismiss.10 As result of the intervening Motion for Summary Judgment, the motion to

5

Docket 7.

6

Docket 28,

7

Docket 14.

8

Docket 19.

9

Docket 21.

10

Docket 23.

ORDER RE; MOTION AT DOCKET 42
Nanouk v United States, 3:15-cv-00221-RRB - 2

dismiss was ultimately denied by the Court sua sponte as moot.11 It does not appear that
Nanouk conducted any discovery during the period the Motion to Dismiss was pending.
Clouding resolution of the Government’s pending summary judgment motion is a
dispute over discovery; specifically, if, and if so, the extent to which it should be permitted.
The facts underlying this dispute are set forth in the Declaration of Samuel J. Fortier,12 are
well known to the parties, and are not recited herein except to the extent necessary to
understanding this decision.
III.

DISCUSSION
As does Nanouk, the Court does not know which, if any, of the documents in the

possession of the Government may be determinative of the issues raised in the pending
Motion for Summary Judgment.13 The Government has, however, filed a filed a copy of
the North River Radio Relay Stations Administrative Record index of documents, which are
available online at http://afcec.publicadmin-record.us.af.mil/Search.aspx#.14
Thus, Nanouk may view those documents to determine which documents, if any,
support the arguments she has raised in opposition to the Government’s motion. In the
interests of justice Nanouk should, and will be, granted a reasonable time within which to
review those documents, and obtain a copy thereof to the extent necessary or appropriate..

11

Docket 41.

12

Docket 36.

13

In her opposition Nanouk raises three issues: (1) Equitable Estoppel; (2)
Waiver; and (3) Equitable Tolling.
14

Declaration of Henry T. Miller, Docket 39. The Court has tested the URL
provided and finds that it does, in fact, provide access to the identified documents.
ORDER RE; MOTION AT DOCKET 42
Nanouk v United States, 3:15-cv-00221-RRB - 3

IV.

ORDER
Accordingly, the motion for a continuance to allow for further discovery on the

statute of limitations at Docket 42 is granted as follows:
1. On or before May 31, 2016, Nanouk may serve and file a supplemental
opposition to the Government’s Motion for Summary Judgment; which supplement may not
exceed ten (10) pages, exclusive of exhibits; and
2.

Not later than fourteen (14) days after Nanouk serves and files her

supplemental brief, the Government may serve and file a supplemental reply brief, not to
exceed five (5) pages, exclusive of exhibits.
A certification by counsel that any exhibit submitted in response to this Order is a
true and correct copy obtained from the on-line records maintained by the Government will
constitute sufficient authentication under Federal Rules of Evidence 901–03.
In all other respects the motion for a continuance to allow for further discovery on
the statute of limitations at Docket 42 is DENIED.
IT IS SO ORDERED this 4th day of May, 2016.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

ORDER RE; MOTION AT DOCKET 42
Nanouk v United States, 3:15-cv-00221-RRB - 4