Adams v. U.S., Nos. 10–35458

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore: BETTY B. FLETCHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.
Citation2011 Daily Journal D.A.R. 13733,658 F.3d 928,11 Cal. Daily Op. Serv. 11574
Docket NumberNos. 10–35458,10–35592,10–35611.
Decision Date08 September 2011
PartiesTimm ADAMS, Plaintiff,andClinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch–Kearl Grower Group, Plaintiffs–Appellees,v.UNITED STATES of America, Defendant,andE.I. Du Pont De Nemours and Company, Defendant–Appellant.Timm Adams, Plaintiff,andClinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch–Kearl Grower Group, Plaintiffs–Appellants,v.United States of America, Defendant,andE.I. Du Pont De Nemours and Company, Defendant–Appellee.Timm Adams, Plaintiff,andClinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch–Kearl Grower Group, Plaintiffs–Appellees,v.United States of America, Defendant–Appellant,andE.I. Du Pont De Nemours and Company, Defendant.

658 F.3d 928
11 Cal.
Daily Op. Serv. 11,574
2011 Daily Journal D.A.R. 13,733

Timm ADAMS, Plaintiff,andClinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch–Kearl Grower Group, Plaintiffs–Appellees,
v.
UNITED STATES of America, Defendant,andE.I.
Du Pont De Nemours and Company, Defendant–Appellant.Timm Adams, Plaintiff,andClinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch–Kearl Grower Group, Plaintiffs–Appellants,
v.
United States of America, Defendant,andE.I.
Du Pont De Nemours and Company, Defendant–Appellee.Timm Adams, Plaintiff,andClinger Grower Group; Funk Grower Group; Hansen Grower Group; Jentzch–Kearl Grower Group, Plaintiffs–Appellees,
v.
United States of America, Defendant–Appellant,andE.I.
Du Pont De Nemours and Company, Defendant.

Nos. 10–35458

10–35592

10–35611.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 2011.Filed Sept. 8, 2011.


[658 F.3d 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.

[658 F.3d 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 Background1

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.

[658 F.3d 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 family. Sulfonylureas chemicals inhibit amino lactase synthase and are known for their high potency in low doses as compared to other herbicides. Oust kills or injures crops by affecting a plant's root system, preventing it from taking up water and nutrients from the soil and causing drought-like symptoms. Oust is not labeled for any use on agricultural crops.

In 1999 and 2000, there were particularly catastrophic wildfires in Idaho and BLM developed fire rehabilitation plans which included the use of Oust on tens of thousands of acres. Beginning in Spring 2000, farmers near the application sites started to notice problems with their crops. In Spring 2001, again, farmers saw damage to their sugar beets, potatoes, grain, and other crops; this time the damage was more substantial. The Idaho State Department of Agriculture (“ISDA”) and private crop consultants initiated investigations. Both the ISDA and the private consultants concluded that the crop damage occurred because severe winds caused Oust treated soil particles to move off BLM targets and onto neighboring crops.

Procedural Background

One hundred and thirty-four of the farmers whose crops were damaged by Oust filed administrative FTCA claims with the Department of Interior in April 2002. The farmers alleged that “BLM's negligent and otherwise wrongful conduct killed or seriously injured the claimants' 2000 and 2001 crops. Further, it contaminated the claimants' croplands. As a result of this contamination, Oust will continue to damage future crops until it dissipates.” The Department of Interior denied Plaintiffs' administrative claims in letters dated August 5, 2002.

The FTCA requires government agencies to send administrative denial letters by certified or registered mail. 28 U.S.C. § 2401(b). Here, BLM opted to send the denial letters by certified mail. Because of the large size of the mailing, BLM used Firm Mailing Sheets instead of preparing each letter individually. This method of certified mailing involves using United States Postal Service (“USPS”) Forms 3800 and 3877. BLM inadvertently left two of the farmers off of the Firm Mailing Sheets. For these two farmers, BLM prepared their denial letters as individual certified mailings using only Form 3800. After a BLM employee prepared the administrative denial mailing on August 5, 2002, she took the letters to BLM's delivery and pick up door for USPS services. The USPS collector picked up all of the

[658 F.3d 932]

letters the same day and USPS...

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24 practice notes
  • Kwai Fun Wong v. Beebe, No. 10-36136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 9, 2013
    ...doctrines that otherwise could excuse a claimant's untimely filing do not apply."1 567 F.3d at 1032; see also Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011) (applying Marley). We agreed to hear this case to resolve the conflict between Alvarez-Machain I and Marley. See Atonio v. ......
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    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 7, 2020
    ...28 U.S.C. § 2401(b), and "is fatal to the Government's Summary Judgment Motion." Rawers Response at 20 (citing Adams v. United States, 658 F.3d 928, 934 (9th Cir. 2011)). She asserts that the United States is hypocritical, because it argues that the Court should construe the Code of Federal......
  • Galvan v. United States, Case No. 1:12–CV–1698 AWI DLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 16, 2013
    ...Circuit opinions. Since 2009, Marley 's holding has been widely cited by subsequent Ninth Circuit opinions. See Adams v. United States, 658 F.3d 928, 933 (9th Cir.2011); Banares v. Demore, 417 Fed.Appx. 638, 639 (9th Cir.2011); Waltz v. United States, 415 Fed.Appx. 782 (9th Cir.2011); Egger......
  • Kwai Fun Wong v. Beebe, No. 10–36136.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 9, 2013
    ...doctrines that otherwise could excuse a claimant's untimely filing do not apply.” 1567 F.3d at 1032;see also Adams v. United States, 658 F.3d 928, 933 (9th Cir.2011) (applying Marley ). We agreed to hear this case to resolve the conflict between Alvarez–Machain I and Marley. See Atonio v. W......
  • Request a trial to view additional results
24 cases
  • Kwai Fun Wong v. Beebe, No. 10-36136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 9, 2013
    ...doctrines that otherwise could excuse a claimant's untimely filing do not apply."1 567 F.3d at 1032; see also Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011) (applying Marley). We agreed to hear this case to resolve the conflict between Alvarez-Machain I and Marley. See Atonio v. ......
  • Rawers v. United States, No. CIV 19-0034 JB\CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 7, 2020
    ...28 U.S.C. § 2401(b), and "is fatal to the Government's Summary Judgment Motion." Rawers Response at 20 (citing Adams v. United States, 658 F.3d 928, 934 (9th Cir. 2011)). She asserts that the United States is hypocritical, because it argues that the Court should construe the Code of Federal......
  • Galvan v. United States, Case No. 1:12–CV–1698 AWI DLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 16, 2013
    ...Circuit opinions. Since 2009, Marley 's holding has been widely cited by subsequent Ninth Circuit opinions. See Adams v. United States, 658 F.3d 928, 933 (9th Cir.2011); Banares v. Demore, 417 Fed.Appx. 638, 639 (9th Cir.2011); Waltz v. United States, 415 Fed.Appx. 782 (9th Cir.2011); Egger......
  • Kwai Fun Wong v. Beebe, No. 10–36136.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 9, 2013
    ...doctrines that otherwise could excuse a claimant's untimely filing do not apply.” 1567 F.3d at 1032;see also Adams v. United States, 658 F.3d 928, 933 (9th Cir.2011) (applying Marley ). We agreed to hear this case to resolve the conflict between Alvarez–Machain I and Marley. See Atonio v. W......
  • Request a trial to view additional results

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