2011 Ninth Circuit environmental review.

• Position: Case Summaries III. Miscellaneous, with footnotes, p. 869-909

3. MISCELLANEOUS

& Federal Tort Claims

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

   One hundred and thirty-four farmers (the Farmers) flied an administrative Federal Tort Claims Act (FTCA) (505) claim against Defendant-Appellant Bureau of Land Management (BLM), an agency of the United States Department of the Interior (DOI). DOI denied the Farmers' FTCA claim. The Farmers then flied a lawsuit in the United States District Court for the District of Idaho against both BLM and E.I. Du Pont De Nemours & Co. (DuPont), a chemical manufacturer. The district court adopted a bellwether trial plan (506) with four Bellwether Plaintiffs and subsequently ruled in favor of the Farmers. BLM and DuPont appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit dismissed the Farmers' claims against BLM for lack of federal subject matter jurisdiction.

   BLM manages rangelands in Idaho that are susceptible to wildfire damage. One strategy BLM adopted to combat these wildfires was to eliminate cheatgrass (Bromus tectorum), a highly combustible, non-native plant. In 1999 and 2000, BLM applied "Oust," an herbicide manufactured by DuPont, to approximately 70,000 acres of public land in Idaho. Wind carried Oust-contaminated soil from BLM land to the Farmers' land, where it damaged their crops. The Farmers subsequently filed administrative claims with DOI under the FTCA. (507) DOI denied the Farmers' claims and prepared notice of administrative denial letters to send to the Farmers by certified mail, pursuant to section 2401(b) of FTCA. BLM prepared 132 of the letters in bulk using United States Postal Service (USP8) Forms 3800 and 3877, and prepared the remaining two letters individually using only USPS Form 3800. On August 5, 2002, USPS workers picked up the letters from the BLM mailroom and delivered them directly to the Farmers as certified mail, albeit lacking a postmark.

   On February 6, 2003, the Farmers filed suit against BLM and DuPont in district court. BLM moved to dismiss the Farmers' claims for lack of subject matter jurisdiction. BLM noted that tort claimants are required to bring their action within six months of the agency's mailing a notice of final denial. (508) Because the Farmers filed their lawsuit on February 6, 2003--six months and one day after BLM mailed its notices on August 5, 2003--BLM argued the Farmers' claims were barred. The district court denied BLM's motion, reasoning that because BLM's notice of denial letters lacked a postmark establishing their mailing date, BLM could not gain the benefit of the six- month statute of limitations.

   The district court's bellwether jury found BLM liable for trespass, negligence, and violation of the Idaho nuisance statute (509) in selecting Oust and the application sites, and also found that BLM proximately caused damage to the crops of all four Bellwether Plaintiffs. The district court adopted the bellwether jury's recommendation, allocating 40% fault to BLM and 60% to DuPont. BLM and DuPont appealed to the Ninth Circuit, which remanded the case back to the district court to resolve factual issues regarding whether BLM mailed the notice of administrative denial letters by certified mail. On remand, the district court held that BLM failed to send the letters by certified mail and that USPS Form 3877 requires individuals to mail certified letters from either a post office or via rural carrier--not from the BLM mail room.

   The issue then presented to the Ninth Circuit was whether the federal district court had subject matter jurisdiction over the Farmers' claim, an issue which the court reviews de novo. (510) BLM argued that the district court lacked subject matter jurisdiction because: 1) the Farmers filed their lawsuit after the six-month statute of limitations expired, and 2) the Farmers' claims were barred by the discretionary function exception to the FTCA. (511) The Ninth Circuit agreed with BLM that the Farmers' claims were barred by the six-month statute of limitations applicable to FTCA claims. (512) Accordingly, the court declined to consider BLM's discretionary function exception argument.

   The court first noted that there is a six-month statute of limitations on FTCA claims, commencing from the date the notice of denial is mailed by certified or registered mail. (513) Ninth Circuit precedent interpreting section 2401(b) imposes strict requirements on both FTCA claimants and the federal government--because the statute of limitations is subject to neither equitable tolling nor estoppel, FTCA claimants must strictly adhere to the six-month timeframe for filing a claim. (514) Similarly, the federal government must strictly adhere to the FTCA's certified or registered mail requirement in order to trigger the statute of limitations, even if the claimant has actual notice of the denial. (515)

   The court recognized that the Farmers' FTCA claims would be barred by the six-month statute of limitations if BLM sent the notices of denial by certified mail on August 5, 2002. The court noted that whether BLM mailed the denial letters by certified mail was a mixed question of law and fact. Accordingly, the court reviewed the district court's factual findings for clear error, and reviewed the district court's legal conclusion--that BLM did not send the letters by certified mail--de novo.

   The court looked to USPS regulations to determine whether certified mail must bear a postmark. USPS regulations incorporate by reference the "Mailing Standards of the United States Postal Service, Domestic Mail Manual" (DMM), (516) which the court noted does not require postmarks on all certified mail sent with Form 3800. Rather, the DMM specifically permits individuals to mail a certified letter without a postmark, so long as the mail bears a barcoded "Certified Mail sticker" from Form 3800. (517) The sender handwrites the mailing date on the receipt portion of Form 3800, which he then retains for his own records. (518) The court further noted that certified mail bearing the Form 3800 certified mail sticker may be sent from "any ... receptacle for First-Class Mail," (519) including BLM's mail room.

   The Farmers noted that the vast majority of the letters were sent using not only USPS Form 3800, but also Form 3877. They argued that Form 3877, unlike Form 3800, requires a sender to mail the letter from a post office or rural carrier. Accordingly, because those letters were sent from BLM's mailroom, they were not sent by the prescribed method qualifying as certified mail. The Ninth Circuit dismissed this argument, noting that although the DMM permits senders to use Form 3877 "in lieu of the receipt portion of Form 3800[,]" (520) senders are still required to apply Form 3800's barcoded sticker to certified mail. Regardless of whether the sender uses Form 3800 or 3877 for his own receipt, the marl is functionally identical when USPS handles it. Thus, the court determined that just as a postmark is optional on a Form 3800 receipt, it is optional on a Form 3877 receipt.

   The court concluded by noting that because BLM applied the Form 3800 barcode to its notice of denial letters and paid proper postage, all 134 letters legally qualified as certified mail. Accordingly, the six-month statute of limitations commenced on August 5, 2002, and concluded one day before the Farmers filed their lawsuit--thus extinguishing federal subject matter jurisdiction over their claim.

2. Myers ex rel. L.M. v. United States, 652 F.3d 1021 (9th Cir. 2011).

   Myers, a child suing ad litem through her guardian, appealed the ruling of the United States District Court for the Southern District of California that it did not have subject matter jurisdiction over her case under the Federal Tort Claims Act (FTCA) (521) due to the "discretionary function exception." (522) Myers also appealed the district court's ruling that the United States Navy acted reasonably and did not breach its duties in conducting a remediation of the United States Marine Corps Base at Camp Pendleton. Myers argued that the discretionary function exception was inapplicable to this case because the Navy was required to undertake mandatory safety measures during the project. The United States Court of Appeals for the Ninth Circuit reversed the district court's rulings that the discretionary function exception applied and that the Navy acted reasonably in conducting the project.

   In 1989, Camp Pendleton was placed on the United States Environmental Protection Agency (EP

   1. National Priorities List (NPL) of contaminated sites. (523) Thereafter, the Navy entered into a cleanup plan--known as a federal facility agreement (FFA) (524)--for Camp Pendleton, under which the Navy was responsible for the cleanup project and for designating a Quality Assurance Officer (QAO) to ensure that all work was performed in accordance with approved plans. Additionally, the Naval Facilities Engineering Command (Naval FEC) implemented a safety and health program manual (Program Manual), (525) which specified the required safety procedures for remediation projects. (526)

      Pursuant to the FFA, Camp Pendleton was divided into several "Operable Units." Operable Unit 3 (OU-3) contained sites 1A and 2A, which were contaminated with thallium. (527) The Navy's remediation plan for Camp Pendleton involved the excavation of the contaminated soil from the OU-3 sites, transportation across the base by truck, and dumping of those soils into the Box Canyon Landfill. The Box Canyon Landfill is adjacent to the Family Housing area of Camp Pendleton and an elementary school. The Navy contracted with IT Corporation and OHM Remediation Services (IT/OHM) to carry out the project and prepared a health and safety plan (HASP) to guide the process. Pursuant to the HASP, IT/OHM was responsible for monitoring airborne contaminants and modifying or stopping its operations if conditions presented a risk to health or safety, while the...