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March 21, 1997

W.C. & A.N. MILLER COMPANIES, Plaintiff,

The opinion of the court was delivered by: SPORKIN



 On March 8, 1996, the plaintiff W.C. & A.N. Miller Companies ("Miller") filed this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., for damages allegedly arising from the United States Army's burial of munitions *fn1" during World War I on leased land in northwest Washington in the District of Columbia. Compl. PP 1-5. These munitions initially were discovered by Miller in January 1993, when Miller was excavating a trench for utilities for a new home on land it owned. Compl. P 13.

 The defendant has moved for dismissal or, in the alternative, for summary judgment on the grounds that: (1) the Court lacks subject matter jurisdiction over the plaintiff's claims; (2) the claims are barred by the applicable statute of limitations; and (3) the plaintiff has failed to state a claim upon which relief can be granted. The plaintiff opposes the defendant's motion. Based on the pleadings, the entire record herein, the law applicable thereto, and for the reasons expressed below, the Court will deny the defendant's Motion, will hold that the defendant breached its duty of care to the plaintiff to warn of the buried munitions, and will set a schedule to dispose of the remaining issue of damages in this case.


 On April 30, 1917, in a letter addressed to President Woodrow Wilson, American University's board of trustees offered the United States Government the use of its 91-acre campus in northwest Washington to support the war effort against Germany. See Martin K. Gordon, Barry R. Sude, Ruth Ann Overbeck & Charles Hendricks, A Brief History of the American University Experiment Station and U.S. Navy Bomb Disposal School, American University (Office of History Headquarters, U.S. Army Corps of Engineers, June 1994) at 15. On May 28, 1917, the Army Corps of Engineers established Camp American University (later renamed Camp Leach) on a portion of the property. The Bureau of Mines established the American University Experiment Station ("AUES") on the campus a short time later. Id. at 16-19. Control of AUES was transferred by President Wilson to the War Department's Gas Service (later called the Chemical Warfare Service) on June 25, 1918. Id.2

 By summer and fall of 1918, there were 12 research sections and more than 1,000 personnel researching war gas problems at the AUES. Id. at 19-20. By the end of the war, there were nearly 2,000 military and civilian personnel supporting the AUES's Research Division. Id. at 20. When space was required for additional drill fields and training trenches, the Construction Division of the Quartermaster Corps leased adjoining properties owned by area residents. There were 153 structures of various sizes and types spread throughout the campus and adjoining properties, including privately-owned tracts. Id. at 23.

 The American University land and surrounding properties became the site of a massive training, research, and testing ground for conventional and chemical warfare defensive and offensive techniques. Projects were conducted related to the development, testing, and manufacture of gases, toxic and incendiary munitions, smoke mixtures, and signal flares. Field tests were conducted using gas shells, smoke clouds and equipment, mortars and Liven's projectiles, hand grenades, incendiary and flaming liquid weapons, and signal lights. Id. at 17-19.

 On November 9, 1918, the German government officially accepted President Wilson's terms for an armistice, and two days later, the fighting in Europe ceased. Id. at 31. On November 29, 1918, the War Department ordered the immediate and complete demobilization of the Chemical Warfare Service. Under this order, the AUES suffered a drastic reduction in personnel and a dismantling of much of its research and manufacturing equipment for shipment to the Edgewood Arsenal. A year later, the War Department ordered the Chemical Warfare Service to immediately vacate the AUES. It transferred personnel, equipment, and material to Edgewood Arsenal. Id. at 35.

 In 1986, in response to inquiries from American University, see Def's Mot., Exh. 11, the United States contracted with the Bionetics Corporation to conduct a photographic analysis of the area, see id. Exh. 12. Pursuant to Contract No. 68-03-3161, Bionetics produced a report in July 1986, which indicated "possible burial sites" of munitions and gas. Id. Exh. 12 at 14.

 The Army also conducted its own document review in 1986 to determine whether historical records reflected a large-scale burial of munitions on the AUES. Id. Exh. 14-15. The document review produced "no official documentation of the alleged large-scale burial of munitions on the [AUES]." Id. Exh. 14 at 1. However, the review concluded that "it can be inferred that laboratory quantities of toxic materials were disposed of onsite prior to or following the documented transfer of personnel and equipment from the [AUES] to Edgewood Arsenal in November 1919." Id. The review concluded that official correspondence from the period "strongly suggests that all munitions were removed to Edgewood Arsenal," but that the review "could not disprove the possibility that some materials remain buried on or near Camp American University [i.e., Camp Leach]." Id. Exh. 15 at 1. The review further concluded: "If any materials were buried, they were probably small quantities of laboratory or experimental materials. All sources we found were inconsistent with the notion of substantial quantities of any munitions or the components for munitions existing at [American University]." Id. Exh. 15 at 3. *fn3"

 * * *

 The plaintiff Miller is a family-owned real estate business operating in the Washington metropolitan area. Compl. P 2. The plaintiff alleges that, in or around 1927, it began to accumulate various parcels of land in northwest Washington. The plaintiff ultimately acquired approximately 300 acres of land in this area over a period of several years. This area later became known as Spring Valley. Id. P 6. Over the years, Miller has developed its Spring Valley holdings into housing, commercial, and retail space. Id. P 7.

 On or about January 5, 1993, Miller was excavating a trench for utilities for a new home on land Miller owned in Spring Valley. It discovered objects that appeared to be old munitions. Miller promptly notified the District of Columbia government, which in turn notified the United States Army. Compl. P 13. The Army promptly assumed responsibility for the situation and conducted a response action pursuant to the Defense Environmental Restoration Act, 10 U.S.C. §§ 2701-07, and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.

 The Army conducted its investigation in two phases. Phase I was the emergency response phase of the investigation, which lasted 27 days, from January 5, 1993 to February 2, 1993. Compl. P 14. During Phase I, the Army excavated in and around the area where the objects had been discovered. The Army removed intact munitions, assorted ordnance-related debris, and laboratory material, all from the World War I era. Compl. P 15. During Phase II of the investigation, which extended into 1995, the Army continued to investigate for buried munitions in an area over 600 acres in size. The Army discovered additional live munitions and spent ordnance and debris. Compl. P 18-19. During both phases I and II, households were evacuated from the area.

 On March 8, 1996, Miller filed the present suit under the Federal Tort Claims Act (FTCA). Miller claims that the Army was negligent in burying munitions during 1917-1920, failing to mark or warn the public that there were buried munitions, investigating in 1986, and failing to remove the munitions prior to 1993. Compl. P 1. Specifically, Miller alleges that these acts and omissions: (1) interfered with Miller's use and enjoyment of the land and constitute a private nuisance; (2) interfered with the public's use and enjoyment of the land and constitute a public nuisance; (3) constituted a breach of the defendant's duty of care to Miller; and (4) constituted a trespass.

 Miller seeks damages totaling approximately $ 14,000,000 for expenses it incurred in assisting the Army during its investigation, in defending itself against homeowners' legal proceedings, and in combating the effects on its business of the uncertainty in the community caused by the discovery of the buried munitions. Compl. P 30-39. Miller does not claim that the Army negligently responded to the discovery of munitions, nor does it claim that any physical harm resulted from those munitions.

 On July 19, 1996, the defendant filed the present motion to dismiss or, in the alternative, for summary judgment. First, the defendant asserts that the Court lacks subject matter jurisdiction over this case because the FTCA does not waive the government's sovereign immunity for claims arising from: (a) the defendant's conduct prior to January 1, 1945, the effective date of the FTCA; (b) the conduct of the defendant's independent contractor; and (c) the defendant's conduct that involves "discretionary functions" of the government. Second, the defendant asserts that the statute of limitations bars suit by the plaintiff whose founders knew or should have known of its claims when they purchased the land. Third, the defendant asserts that the Complaint fails to state a claim upon which relief can be granted because under District of Columbia law, a leaseholder owes no duty to a subsequent purchaser of land under nuisance, negligence, or trespass theories. The plaintiff filed an opposition to the present motion on August 12, 1996, to which the defendant replied on September 9, 1996. On September 19, 1996, the plaintiff moved to file a surreply, which the court shall accept, as it addresses issues raised in the defendant's reply.


 Dismissal is appropriate when the Court lacks jurisdiction over the subject matter of a claim or when the plaintiff has failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(1),(6). Under Rule 12(b)(6), a claim must be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In evaluating the plaintiff's complaint on a motion to dismiss, the Court must accept the factual allegations as true and draw all reasonable inferences therefrom in favor of the plaintiff. Maljack Productions, Inc. v. Motion Picture Ass'n of Am., Inc., 311 U.S. App. D.C. 224, 52 F.3d 373, 375 (D.C. Cir. 1996). At the same time, the Court must not accept inferences drawn by the plaintiff if they are unsupported by the facts, nor must the Court accept purely legal conclusions masked as factual allegations. Id.

 If, on a motion to dismiss pursuant to 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Fed. R. Civ. P. 12(b). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). An issue must be both genuine and material to preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. An issue is genuine if there is sufficient evidence to support a rational finding either way. In making this determination, the non-movant's evidence "is to be believed, and all justifiable inferences are to be drawn in [their] favor." Id. at 255. "Only disputes of facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment." Id. at 248.


 A. The plaintiff's claims are not barred by the FTCA's "effective date" or "independent contractor" provisions; The plaintiff's claims arising from the defendant's failure to warn of buried munitions are not barred by the discretionary function provision.

 As a sovereign, the United States is immune from suit except if it has consented to be sued. United States v. Dalm, 494 U.S. 596, 608, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (1990). The FTCA waives sovereign immunity for civil suits against the United States

for money damages . . . for injury or loss of property, or personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the ...

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