A Day Late & Now|$17 Million Short

     (CN) – Idaho farmers filed their complaint a day too late to collect damages from the government after their crops were caught in the crossfire of a federal agency’s herbicidal battle against non-native grass, the 9th Circuit ruled Thursday.



     The farmers’ claims against the Bureau of Land Management (BLM) are “forever barred,” the Seattle-based appellate panel found, reversing a lower court’s ruling that the agency was 40 percent responsible for infecting thousands of acres of agriculture land with the DuPont herbicide Oust more than a decade ago.
     A Boise federal judge should never have heard the issue because the farmers filed their complaint six months and one day after the BLM had denied their administrative claims, according to the three-judge panel. Since plaintiffs get six months to file a lawsuit after such a denial, the farmers were one day late.
     The BLM sprayed Oust on about 70,000 acres of Idaho’s public lands in 1999 and 2000 to wipe out cheatgrass, a non-native species responsible for fuelling wildfires. But wind blew Oust-laden soil onto nearby farmlands, damaging potatoes, sugar beets, grains and other crops belonging to 134 farmers, who also claimed that the herbicide had done long-term damage to their lands, according to the ruling.
     Oust is a commercial name for sulfometuron methyl, which kills plants by preventing roots from taking in water and nutrients from the soil.
     In an advisory verdict, a jury found the agency 40 percent responsible for the damage and shouldered DuPont with the other 60 percent. Chief U.S. District Judge Lynn Winmill agreed and awarded nearly $17 million to four bellwether plaintiffs in 2009.
     The 9th Circuit panel, in two separate rulings Thursday, denied each of DuPont’s several issues on appeal but found that the farmers’ claims against the BLM were barred by the statute of limitations.
     The issue came down to the minutia of certified mail.
     To trigger the six-month statute of limitations under the Federal Tort Claims Act (FTCA), an administrative denial must be sent by certified mail. The farmers argued that the BLM had failed to use certified mail in their case, thus exempting them from the time restraints.
     But the appellate panel disagreed based on an inspection of the mailing materials. The envelopes sent to the plaintiffs had included the barcode of the form “commonly associated with certified mail,” and the BLM had paid the proper postage, the panel found. “Therefore, plaintiffs filed this lawsuit one day late and federal subject matter jurisdiction does not exist for any of their FTCA claims,” Judge Richard Paez wrote for the court. “The District Court erred by not dismissing the claims against the federal government.”

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