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, D.C. No. 4:03-cv-00049-BLW, D.C. No. 4:03-cv-00049-BLW
The opinion of the court was delivered by: Paez, Circuit Judge:
Argued and Submitted February 8, 2011-Seattle, Washington
Before: Betty B. Fletcher, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.
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.
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. 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 ...