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Hoery v. United States2/24/2003
CERTIFIED QUESTIONS ANSWERED
EN BANC
JUSTICE KOURLIS dissents, and JUSTICE COATS joins in the dissent.
I. INTRODUCTION
In this case, we agreed to answer two certified questions from the United States Court of Appeals for the Tenth Circuit regarding continuing trespass and nuisance under Colorado law. Pursuant to C.A.R. 21.1, the Tenth Circuit certified the following state law questions pertinent to an appeal pending in that court:
(1) Does the continued migration of toxic chemicals from defendant's property to plaintiff's property, allegedly caused by chemical releases by the defendant, constitute continuing trespass and/or nuisance under Colorado law?
(2) Does the ongoing presence of those toxic chemicals on plaintiff's property constitute continuing trespass and/or nuisance under Colorado law?
We answer both questions in the affirmative.
The plaintiff, Robert Hoery, brought suit under the Federal Tort Claims Act against the defendant, the United States, asserting claims for, among other things, continuing trespass and nuisance. Hoery claimed that the United States negligently released toxic chemicals from Lowry Air Force Base into the ground which contaminated his nearby residential property. The United States District Court dismissed the case, concluding that Hoery failed to state a claim for continuing trespass or nuisance under either federal or Colorado law. On appeal, the Tenth Circuit determined that there was no controlling Colorado precedent to determine whether Hoery stated a claim for continuing trespass and nuisance under Colorado law and thus certified the questions to this court for our resolution.
Upon considering our precedent and other jurisdictions that have considered these questions, we hold that the alleged migration and ongoing presence of toxic chemicals on Hoery's property each constitutes a continuing trespass and nuisance under Colorado law. The alleged tortious conduct of the United States includes its failure to abate and to remove the toxic chemicals it placed beneath Hoery's property. In addition, we hold that this tortious conduct is not limited to the initial release of those chemicals from Lowry.
Thus, we answer both certified questions in the affirmative and return this case back to the Tenth Circuit for further proceedings.
II. FACTS AND PROCEEDINGS
We rely on the Tenth Circuit's rendition of a substantial portion of the underlying facts of this case, which we accept as true for our purposes here.
Robert Hoery and his wife bought a residence in the East Montclair neighborhood of Denver, Colorado in 1993. The property has a groundwater well in the backyard to irrigate the lawn and vegetable garden. Hoery's well is located seven blocks north of Lowry Air Force Base.
The United States operated Lowry as an active military base between the 1940s and September 1994. During that time period, the United States disposed of trichloroethylene ("TCE") and other toxic chemicals at Lowry. These releases created plumes of toxic pollution underneath property extending several miles north of Lowry, including the area underneath Hoery's property in the Montclair neighborhood. In 1997, the United States tested Hoery's irrigation well and found it was contaminated with TCE.
Although the United States stopped all operations at Lowry related to the use of TCE in 1994, the toxic plume continues to migrate underneath the Montclair neighborhood. TCE remains on Hoery's property and enters his groundwater and soil on a daily basis, unabated by the United States.
Hoery brought su
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