Grant Neibaur and Sons Farms et al v. United States of America

Filing 8

MEMORANDUM DECISION AND ORDER denying 5 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GRANT NEIBAUR AND SONS FARMS,
et al.,

Case No. 4:11-CV-159-BLW

Plaintiffs,
MEMORANDUM DECISION AND
ORDER

v.

UNITED STATES OF AMERICA, et al.,
Defendants.

INTRODUCTION
The Court has before it a motion to dismiss filed by the BLM. The motion is
fully briefed and at issue. The Court will deny the motion for the reasons expressed
below.
LITIGATION BACKGROUND
In this lawsuit, plaintiffs sue the BLM, claiming that its application of the
DuPont chemical Oust in 1999 and 2000 caused damage to plaintiffs’ crops –
specifically sugar beets, potatoes and wheat – in 2002 and 2003. The plaintiffs filed
their administrative claim under the Federal Tort Claims Act on April 21, 2004. The
BLM claims that because the plaintiffs’ claims accrued, at the latest, in 2001, their

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administrative claim filed in 2004 was not filed within the two-year statute of
limitations, requiring that this lawsuit be dismissed. Accordingly, the BLM has filed a
motion under Rule 12(b)(1) claiming the Court has no subject matter jurisdiction.
LEGAL STANDARDS
Rule 12(b)(1)
A Rule 12(b)(1) jurisdictional attack may be facial or factual. See Safe Air for
Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004). In a facial attack, the challenger
asserts that the allegations contained in a complaint are insufficient on their face to
invoke federal jurisdiction. Id. By contrast, in a factual attack, the challenger disputes
the truth of the allegations that, by themselves, would otherwise invoke federal
jurisdiction. Id. The BLM’s jurisdictional attack is factual because it relies on
extrinsic evidence to demonstrate when the plaintiffs had knowledge of their crop
damage and its cause.
In resolving a factual attack on jurisdiction, the district court may review
evidence beyond the complaint without converting the motion to dismiss into a motion
for summary judgment. Id. at 1039. But where “the jurisdictional issue and
substantive issues are so intertwined that the question of jurisdiction is dependent on
the resolution of factual issues going to the merits’ of an action,” the Court must treat
the motion as a motion for summary judgment. Id.
The Court cannot find that the issues are so intertwined that the motion to
dismiss must be converted into a motion for summary judgment. Accordingly, the
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Court will treat the BLM’s motion as a motion to dismiss based on Rule 12(b)(1).

FTCA Statute of Limitations
The FTCA statute of limitations requires that a party file an administrative claim
with the appropriate federal agency within two years of the date that the claim accrued.
See 28 U.S.C. § 2401(b). The requirement is jurisdictional, and a plaintiffs’ failure to
comply deprives a federal court of subject-matter jurisdiction over his claims. See
Marley v. United States, 567 F.3d 1030, 1035-37 (9th Cir. 2009) (holding that
jurisdictional nature of FTCA’s statute of limitations bars use of equitable tolling to
excuse plaintiff’s untimeliness).
A tort claim accrues when the plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, the injury and its cause. See United
States v. Kubrick, 444 U.S. 111 (1979). This rule protects a plaintiff who may not
know of his injury or whose injury may be unknowable until it manifests itself. Id. at
122. But it does not protect a plaintiff who, knowing of his injury, “fails to bring suit
because he is incompetently or mistakenly told that he does not have a case . . . .” Id.
Courts must not “visit[] the consequences of that error on the defendant by delaying the
accrual of the claim until the plaintiff is [correctly] informed . . . .” Id.
ANALYSIS
Plaintiffs seek damages for crops grown in 2002 and 2003. They assert that the
visible symptoms of that damage did not appear until after April of 2002, and that the
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actual yield reductions did not occur until the summer of 2002, at the earliest. See
Neibaur Affidavit (Dkt. No. 6-1) at pp. 2-3. They argue that either way – that is, dating
the accrual of their claims from either the date symptoms were visible or the date the
yield reductions occurred – their administrative claim filed in April of 2004 is timely
under the two-year limitations period.
The BLM responds that the undisputed evidence shows that, at the latest, the
plaintiffs knew in 2001 that (1) their crops were damaged, and (2) that the damage was
caused by Oust. Although by 2001 the plaintiffs had not yet planted the crops they
now seek recovery for, the BLM argues that this Court has held that the continuing
Oust damage in future years all “accrued” by 2001, rendering untimely plaintiffs’
claims of damage in 2002 and 2003.
The decision referred to by the BLM was entered by the Court in a separate case
brought by a different group of farmers with the same claims as plaintiffs. See
Memorandum Decision (Dkt. No. 387 in Adams v US, 4-03-CV-49-BLW). The Court
was ruling on a motion in limine brought by the BLM seeking to exclude any evidence
of crop damage after 2001. The BLM argued that the plaintiffs’ complaint failed to put
them on notice that the plaintiffs would seek recovery for crop damage beyond 2001.
The Court held that the plaintiffs’ administrative claim put the BLM on notice that
plaintiffs were seeking damages beyond 2001. Id. at p. 3.
In a motion to reconsider, the BLM argued that an administrative claim seeking
“future damages” is invalid. The BLM read the FTCA to require the filing of a
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separate administrative claim after each year’s damage occurred. The Court disagreed,
finding that the plaintiffs’ claim fell within the FTCA language in 28 U.S.C. § 2675(b)
allowing damages “based upon newly discovered evidence not reasonably discoverable
at the time of presenting the claim to the federal agency, or upon allegation and proof
of intervening facts, relating to the amount of the claim.” See Memorandum Decision
(Dkt. No. 399 in Adams v US, 4-03-CV-49-BLW) at pp. 3-4.
The BLM now argues that in these decisions “the Court reasoned that any
damages to the Adams plaintiffs’ crops occurring after 2001 were just a continuation of
the injury that accrued in 2000 - 2001, meaning that their claims for future damages
had already accrued prior to the filing of their 2002 administrative claim.” See BLM’s
Reply Brief (Dkt. No. 7) at p. 4. The BLM argues that the Court is bound here by its
decision on the accrual of claims in Adams.
The Court disagrees. In neither of the Adams decisions did the Court discuss
the FTCA statute of limitations or rule on when a cause of action accrued. The Court
did not find that the future claims “accrued” in 2001, and there is no language in those
decisions to support the BLM’s interpretation. Instead, both decisions focused on
issues of exhaustion of administrative remedies and notice to the BLM. The Court
explained that the FTCA allowed recovery of future damages – not yet suffered at the
time of the administrative claim – under a narrow exception, and that the plaintiffs’
allegations fell within that exception. Those decisions cannot be read to mandate
dismissal of this case.
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Nevertheless, the BLM argues, the claims should be deemed to have accrued at
least by 2001 when plaintiffs knew that Oust caused the damage. The allegedly
negligent spraying all occurred prior to 2001, and under Idaho law, the BLM argues,
the plaintiffs cannot argue that the agency has committed a “continuing tort” that might
extend the limitations period. The BLM also points out that under Kubrick, discussed
above, plaintiffs’ protestations that they were misled about the persistence of Oust in
the soil are irrelevant.
The Court will assume, arguendo, that the “continuing tort” doctrine is
unavailable, and will ignore plaintiff’s claims of being misled about persistence. Even
so, the only evidence before the Court at this stage of the proceedings is that plaintiffs
did not discover the damage to their 2002 crops until after April of 2002, and did not
discover the damage to their 2003 crops until even later. See Neibaur Affidavit, supra,
at pp. 2-3. Hence, their administrative claim filed in April of 2004 would be within the
two-year limitations period.
For all of these reasons, the Court will deny the BLM’s motion to dismiss.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to dismiss
(docket no. 5) is DENIED.

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DATED: February 1, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

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