658 F.3d 928 (9th Cir. 2011), 10-35458, Adams v. United States

Docket Nº:10-35458, 10-35592, 10-35611.
Citation:658 F.3d 928
Opinion Judge:PAEZ, Circuit Judge:
Party Name:Timm ADAMS, Plaintiff, v. UNITED STATES of America, Defendant, and Clinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch-Kearl Grower Group, Plaintiffs-Appellees, and E.I. Du Pont De Nemours and Company, Defendant-Appellant. Timm Adams, Plaintiff, and Clinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch-Kearl Grower
Attorney:Peter C. Houtsma, Holland & Hart LLP, Denver, CO, Steven B. Andersen, Walter H. Bithell, Amanda K. Brailsford, Holland & Hart LLP, Boise, ID, for plaintiffs-appellees Clinger Grower Group, Funk Grower Group, Hansen Grower Group, Jentzch-Kearl Grower Group, et al. Tony West, United States Assistan...
Judge Panel:Before: BETTY B. FLETCHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.
Case Date:September 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 928

658 F.3d 928 (9th Cir. 2011)

Timm ADAMS, Plaintiff,

and

Clinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch-Kearl Grower Group, Plaintiffs-Appellees,

v.

UNITED STATES of America, Defendant,

and

E.I. Du Pont De Nemours and Company, Defendant-Appellant.

Timm Adams, Plaintiff,

and

Clinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch-Kearl Grower Group, Plaintiffs-Appellants,

v.

United States of America, Defendant,

and

E.I. Du Pont De Nemours and Company, Defendant-Appellee.

Timm Adams, Plaintiff,

and

Clinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch-Kearl Grower Group, Plaintiffs-Appellees,

v.

United States of America, Defendant-Appellant,

and

E.I. Du Pont De Nemours and Company, Defendant.

Nos. 10-35458, 10-35592, 10-35611.

United States Court of Appeals, Ninth Circuit.

September 8, 2011

Argued and Submitted Feb. 8, 2011.

Page 929

Peter C. Houtsma, Holland & Hart LLP, Denver, CO, Steven B. Andersen, Walter H. Bithell, Amanda K. Brailsford, Holland & Hart LLP, Boise, ID, for plaintiffs-appellees Clinger Grower Group, Funk Grower Group, Hansen Grower Group, Jentzch-Kearl Grower Group, et al.

Page 930

Tony West, United States Assistant Attorney General, Wendy J. Olson, United States Attorney, Mark B. Stern, Mark R. Freeman, United States Department of Justice, Washington D.C., for defendant-appellant United States.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 4:03-cv-00049-BLW.

Before: BETTY B. FLETCHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

In 1999 and 2000, the federal Bureau of Land Management (" BLM" ) applied the herbicide Oust to approximately 70,000 acres of federal lands in South Central Idaho in an effort to combat a devastating wildfire cycle. Wind carried some of the Oust off the federal land and onto privately owned farmland nearby. The herbicide caused significant damage to the crops on these farmlands. The Plaintiffs in this case, 134 farmers whose crops suffered as a result of the Oust applications, sued the federal government and Oust's manufacturer E.I. Du Pont De Nemours and Company (" DuPont" ). The district court adopted a bellwether trial plan and selected four Bellwether Plaintiffs to resolve those issues in the case that do not depend on individual circumstances. The resolution of these issues will bind both the Bellwether and all other Plaintiffs. The district court conducted a 16-week trial involving claims against both DuPont and the government. The jury returned an advisory verdict against the federal government, and a verdict against DuPont. As required by the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 2402, the district court, upon its own fact-finding and independent review of the record, rendered a verdict against the federal government. Both the jury and the district court allocated 60% of the fault to DuPont and 40% to the federal government. The government and DuPont appealed: we resolve the government's appeal in this opinion and DuPont's appeal, No. 10-35458, in a memorandum disposition filed simultaneously with this opinion.

The government argues that jurisdiction is lacking, that the FTCA bars the " debt-based costs" that the district court awarded to Plaintiffs, and that Plaintiffs did not exhaust their administrative remedies for the crop damage they suffered in 2003 and 2004. Because we agree with the government that jurisdiction is lacking, we address only this threshold issue, and we accordingly limit our discussion of the complex facts of this case.

Factual Background 1

BLM, an agency of the Department of the Interior, manages approximately 11 million acres of public land in Idaho. Every year, wildfires burn thousands of acres of this BLM land and the BLM engages in extensive efforts to repair and rehabilitate burned rangelands. Many of the wildfires in Idaho's federal lands are fueled by cheatgrass; these fires tend to be very large and can be catastrophic.

Cheatgrass is an annual non-native plant that grows up early in the spring, dries out very early in the summer, and provides a continuous bed of fuel for wildfires. It is shallow-rooted, which leads to damaging erosion in areas where it is prevalent. Perennial vegetation, which is native to the Idaho lands, is deep-rooted and stays green longer into the season than cheatgrass.

Page 931

As a result, perennial vegetation is significantly more fire-resistant than cheatgrass. As part of its management duties, BLM has made it a goal to substitute perennial vegetation for cheatgrass in Idaho— if successful, this substitution would reduce the instances and severity of wildfires. During the 1980s, BLM unsuccessfully attempted to fight cheatgrass with prescribed burns, plowing, re-seeding, and seed drilling. Next, BLM tried the herbicide Roundup, which only sometimes killed the cheatgrass. Roundup is a post-emergent herbicide, meaning that it has to be sprayed on green vegetation in order to kill the vegetation. Roundup becomes almost entirely inactive once it hits soil. In 1987, after Roundup had proven only somewhat useful in combating cheatgrass, a BLM ecologist started looking at other herbicides that might be more successful. Oust was one of these herbicides.

Oust is manufactured by DuPont and is registered under the Federal Insecticide, Fungicide, and Rodenticide Act (" FIFRA" ) with the Environmental Protection Agency (" EPA" ). Oust is a commercial name for the chemical compound sulfometuron methyl, which belongs to the sulfonylureas chemical...

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