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Timm Adams, et al v. Findingsoffact

March 18, 2011


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court


This matter is on limited remand from the Ninth Circuit with directions to answer a specific question. The parties agreed that this question could be answered on the factual record now before the Court, supplemented by additional briefing and proposed findings of fact and conclusions of law, submitted by plaintiffs and the BLM. Those materials have been submitted and the matter is now at issue.

The Circuit remanded this case with directions "to issue findings of fact and conclusions of law on the following issue: Whether the United States sent administrative denial letters to Plaintiffs by a method that qualified as certified mail."

The answer, explained more fully below, is that the only administrative denial letters that were sent by a method that qualified as certified mail were the three denial letters mailed by BLM attorney Ken Sebby to (1) plaintiffs' attorney Steven Anderson (denying the claims of Ball Brothers Farms and Dennis and Leah Smith), (2) Ball Brothers Farms, and (3) Dennis and Leah Smith.


On April 15, 2002, the BLM received a packet of tort claims from attorney Steven Anderson of the law firm of Holland & Hart alleging damage from the BLM's spraying of an herbicide known as Oust. See Sebby Declaration (Dkt. 21) at ¶ 3, p. 1. The BLM reviewed the claims and decided to deny them. BLM attorney Ken Sebby drafted and signed a letter dated August 5, 2002, addressed to attorney Anderson, denying the claims. Id. at ¶ 5, p. 2. To that denial letter, Sebby attached a 13-page list of the names, addresses, and claim amounts for 132 claimants. See Exhibit 1 to Sebby Declaration (Dkt. 21). At the top of this denial letter, Sebby identified it as "Administrative Determination Number T-1-B-211." See Exhibit 2 to Sebby Declaration, supra. The BLM decided to send a copy of the denial letter not only to plaintiffs' attorney Anderson but also to each of the 132 claimants.

The job of developing a process for this large mailing fell to Karl Gebhardt, an engineer with the BLM. See Gebhardt Declaration (Dkt. 18) at ¶ 3, p. 2. He prepared mailing labels with the names and addresses of the claimants, and then established the mailing procedure that was to be followed by Sharon Olendorff, who was the Executive Assistant for the Deputy State Director of the BLM.

The procedure devised by Gebhardt directed Olendorff to (1) place Gebhardt's mailing label on the envelope along with "a certified mail receipt number;" (2) place on a separate card, Postal Service form 3811 (entitled "Domestic Return Receipt"), an identical mailing label with the identical certified mail receipt number in box number 1 entitled "Article Addressed to;" and (3) also place on form 3811 a label containing the identical certified mail receipt number in box number 2, entitled "Article Number." Id. at ¶¶ 7-8. Gebhardt also prepared Firm Mailing Sheets using Postal Service form 3877, consisting of a nine-page list of each claimant's name and address, and the envelope's corresponding certified mail receipt number. See Gebhardt Second Declaration (Dkt. 60) at ¶ 13, p. 4.

Early on the morning of August 5, 2002, Gebhardt delivered to Olendorff (1) the denial letter (no. T-1-B-211), (2) mailing labels containing the name and address of each claimant, (3) the "certified mailing receipt numbers", (4) form 3811, and (4) form 3877, the nine pages of Firm Mailing Sheets. Id. at ¶ 8 (noting delivery of all items except denial letter); Olendorff Declaration, (Dkt. 20) at ¶ 3, p. 2 (noting delivery of denial letter). Olendorff was then to prepare the letters for mailing. Id.

Olendorff instructed BLM personnel (1) to place copies of the denial letter in envelopes, (2) to affix the computer-generated mailing labels to the front of each envelope, and (3) to affix the "certified mail receipt cards" to the envelopes. See Olendorff Declaration, supra at ¶ 6, p.2.

There was one recipient who was not listed on the computer-generated mailing label: attorney Anderson. This required Olendorff to (1) "manually prepare an address label and certified mail receipt card"; (2) "personally affix these items to the envelope which was to go to the attorney"; (3) add[] the attorney's name and certified mail number to the Firm Mailing Sheets by hand"; and (4) place[] the envelope going to the attorney in sequence after the envelope containing the last of the computer generated claimants' names." See Olendorff Second Declaration (Dkt. 63) at ¶ 9, p. 3. With this letter added to the others, there were now 133 letters.

Olendorff testified that she completed her work at 1:30 p.m. on August 5, 2002. See Olendorff Declaration at ¶ 7. She then placed the envelopes in boxes and arranged them to correspond with the order of letters set forth on the Firm Mailing Sheets (form 3877), "so that the mail carrier would be able to easily check the envelopes." Id.

Olendorff personally delivered the boxes of envelopes and the Firm Mailing Sheets to the BLM mail room "before 2:00 p.m. on August 5, 2002." See Olendorff Second Declaration (Dkt. 63) at ¶ 11, p. 3. The BLM's mail clerk, Cathy Brown, who works in the BLM's mail room, recalls receiving "boxes of certified mail and computer-generated firm mailing sheets from Ms. Olendorff." See Brown Second Declaration (Dkt.

61) at ¶ 12, p. 3. The BLM uses a Pitney Bowes postage meter to place postage on outgoing mail. Id. at ¶ 7, p. 2. The machine prints the postage onto a tape that is then manually affixed to the mail, or it prints the postage directly onto the envelope. Id. The machine also prints a date onto the tape or envelope. Id. While Brown does not state whether she affixed the Pitney Bowes postage and date tape to each piece of outgoing mail, the envelopes recovered by the attorneys in this case contained a Pitney Bowes postage and date stamp. See Anderson Affidavit at ¶ 9. That date stamp reads August 5, 2002.

Brown testified that she took the boxes of mail to the "delivery and pick up door [at the BLM's building] for pick up by the USPS Collector on the same date they were received in the mail room. I also recall watching the Collector ...

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