ELR Citation: ELR 20793
No(s). 94-35183 (9th Cir. Nov 30, 1995)

The court holds that the discretionary function exception to a sovereign immunity waiver does not bar a Suits in Admiralty Act action by oil tanker owners against the United States. The owners allege that the hydrographers for the National Oceanic and Atmospheric Administration (NOAA) who conducted two surveys of the inlet where the owners' tanker ran aground, failed to maintain proper spacing on bottom soundings, failed to run splits to correct deviations, failed to investigate anomalies adequately, and failed to note survey flaws in their descriptive reports in accordance with the NOAA manuals and specific survey instructions. The owners also allege that the survey reviewers erred in approving the surveys on which the nautical charts are based. The court first criticizes the district court for resting its decision on the fact that the survey reviewers had discretion whether or not to approve the final inlet charts. Each separate action must be examined to determine whether the specific actor had discretion of a type Congress intended to shield. The court holds that the discretionary function exception does not bar the owners' allegations of negligence in spacing and split running. NOAA manuals and instructions that regulate line spacing and split running allow for scientific discretion, which is outside the type of policy decision Congress intended to be shield with the exception. The court next holds that the applicability of the exception to allegations that the hydrographers failed to investigate anomalies, and failed to report survey inadequacies, will depend on the survey. In the earlier survey instructions, mandatory language superseded a general grant of discretion to investigate anomalies. No such language superseded the later survey instruction's grant of general discretion. The court also holds that the discretionary function exception protects the survey reviewers' decision to approve the two surveys. The evidence both parties submitted tended to show that the approval of a survey was a type of decision susceptible to a policy analysis. Last, the court holds that the owners can only recover cleanup costs from the United States for government negligence if that negligence was the sole cause of the accident. The tanker's owners are strictly liable under the Federal Water Pollution Control Act unless they can show that government negligence was the sole cause of the oil spill.

Counsel for Plaintiff
R. Michael Underhill
Environment and Natural Resources Division
U.S. Department of Justice
301 Howard St., Ste. 870, San Francisco CA 94105
(415) 744-6491

Counsel for Defendant
Dawn M. Schock
Keesal, Young & Logan
P.O. Box 1730, Long Beach CA 90801
(213) 436-9051

Before: POOLE, BOOCHEVER, and WIGGINS, Circuit Judges.