DuPont may settle over allegations of crop damage

By JOHN O'CONNELL

Capital Press

The federal government is not liable for millions of dollars in crop damages it allegedly caused because the attorneys representing a group of southeast Idaho growers filed the lawsuit a day late, the 9th U.S. Circuit Court of Appeals has ruled.

However, sources say a settlement may be in the works with DuPont, a large chemical manufacturer also named in the 2002 lawsuit.

During 1999 and 2000, the Bureau of Land Management applied DuPont's herbicide Oust to kill invasive cheatgrass taking hold throughout 70,000 acres of public land scorched by a major wildfire.

According to court documents, wind blew the chemical onto surrounding farmland, prompting 134 farmers to sue both the federal government and DuPont. They alleged the drift caused serious damage to their sugar beets, potatoes, grain and other crops in both 2000 and 2001. They also alleged they would incur future crop losses due to the residual effects of Oust, the commercial name for sulfometuron methyl, which kills plants by inhibiting their roots from absorbing water and nutrients.

The U.S. district court adopted a "bellwether" approach to hold a trial, a method of selecting a small group of plaintiffs with common concerns when larger numbers would overwhelm the court. Resolution of issues is binding both to the bellwether members -- the Clinger, Funk, Hansen and Jentzch-Kearl grower groups -- and the general pool of plaintiffs.

In August 2009, a jury returned an advisory verdict holding both the government and DuPont responsible for crop losses. Chief U.S. District Judge B. Lynn Winmill concurred, ruling the BLM's apportionment of liability to be 40 percent.

The 9th Circuit reversed Winmill's decision regarding the BLM early last month, noting the lawsuit was filed a day past the six-month statute of limitations. Winmill had maintained in his ruling that the statute of limitations for filing hadn't been triggered because the BLM hadn't sent the paperwork denying their claims via certified mail.

Attorneys with Holland & Hart of Boise, which represents the growers, could not be reached for comment. A BLM official declined to comment as parts of the case are ongoing or could be challenged.

The 9th Circuit ruling doesn't sit well with plaintiff Bill Funk, who said he left farming and leased out his land because of the experience.

"I've seen guys that lost everything," said Funk, of American Falls. "They shouldn't throw this out on a technicality."

Funk, who alleged damage to his sugar beets, confirmed an attorney representing the growers contacted him earlier in the week with news of a settlement offer made by DuPont.

"They told me they're having a meeting next week," said Funk, who added he hasn't heard any details.

The 9th Circuit panel rejected DuPont's appeal arguments.

DuPont spokesman Dan Turner declined to comment on the settlement issue other than to say, "We are in a court-directed mediation and those negotiations are ongoing."