Penford Corporation v. Natl. Union Fire Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2425
___________
Linn Farms and Timber Limited *
Partnership, *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Union Pacific Railroad Company; *
Chesapeake Exploration, LLC, *
*
Appellees. *
___________
Submitted: April 12, 2011
Filed: November 15, 2011
___________
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
___________
BYE, Circuit Judge.
Union Pacific Railroad Company (“Union Pacific”), formerly Missouri Pacific
Railroad Company (“Missouri Pacific”), owned mineral rights to three parcels of land
in Arkansas until 2005 when the rights were forfeited due to tax delinquency. Linn
Farms and Timber Limited Partnership (“Linn Farms”), as the surface rights owner
to the parcels, purchased the mineral rights from Mark Wilcox, the Arkansas
Commissioner of State Lands (“Commissioner”). Thereafter, Union Pacific, unaware
of the forfeiture, leased the mineral rights to Chesapeake Exploration, LLC
(“Chesapeake Exploration”), who then recorded the lease. Discovering the lease,

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Linn Farms sued to quiet title to the mineral rights. Linn Farms, Union Pacific, and
Chesapeake Exploration each filed a motion for summary judgment. The district
court denied Linn Farms’s motion and granted summary judgment to Union Pacific1
and Chesapeake Exploration. It concluded the sale of the mineral rights by the state
was invalid because the Arkansas Commissioner of State Lands failed to provide
Union Pacific adequate notice of the impending forfeiture in violation of Union
Pacific’s due process rights. Linn Farms appeals and we affirm.
I
The parties dispute the ownership of mineral rights to three parcels of land
located in Van Buren County, Arkansas. Linn Farms, an entity owned by Danny and
Linda Linn, owns the surface rights to each of the parcels. Missouri Pacific,
originally headquartered in Fort Worth, Texas, previously owned the mineral rights,
but at some point before the relevant dates of this case it merged with Union Pacific,
headquartered in Omaha, Nebraska. As a result, the mineral rights became the
property of Union Pacific. However, Union Pacific failed to inform the Van Buren
County Assessor’s Office of either the merger or the resulting change in mailing
address.
On June 26, 2003, the Van Buren County Tax Collector certified to the
Commissioner, that the mineral rights, which were still recorded as being owned by
Missouri Pacific, were forfeited to the State of Arkansas for nonpayment of taxes.
The Commissioner sent a notice to Missouri Pacific on October 20, 2003, informing
it the mineral rights would be sold in two years due to tax delinquency if the rights
were not redeemed. The Commissioner sent the notice to Fort Worth, Texas, but
because Missouri Pacific had moved to Omaha, Nebraska, the notice was returned
The Honorable J. Leon Holmes, United States District Judge for the Eastern1
District of Arkansas.
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“NOT DELIVERABLE AS ADDRESSED-UNABLE TO FORWARD.” Two years
later, on October 19, 2005, the Commissioner sent another letter to Missouri Pacific,
stating the mineral rights had been certified to the state due to tax delinquency, the
surface owner of the parcels intended to purchase the mineral rights, and Missouri
Pacific had until November 22, 2005, to redeem its rights. Like the first notice, the
second notice was addressed to Fort Worth and was also returned “NOT
DELIVERABLE AS ADDRESSED-UNABLE TO FORWARD.”
During this same time frame, however, the Commissioner did successfully
provide Missouri Pacific notice on properties in other counties. On October 16, 2003,
and again on February 14, 2006, the Commissioner sent notices to Missouri Pacific
at the Omaha address regarding tax delinquencies on a property located in Faulkner
County, Arkansas. In January 2004, the Commissioner also sent a tax delinquency
notice to Missouri Pacific at the Omaha address for property located in Woodruff
County, Arkansas. Jerry Bradshaw, an employee of the Commissioner dealing
exclusively with tax delinquencies on mineral rights and the one who sent Missouri
Pacific’s 2005 notice, indicated some notices were sent to the Omaha address while
others were sent to Fort Worth because the Commissioner keeps separate records for
mineral rights and redemption deeds and each had different addresses. Bradshaw
explained the notices reaching Missouri Pacific came from the Office of the Land
Commissioner, which deals with redemption deeds and is located in a different
physical location from Bradshaw’s office, which focuses on mineral rights.
Bradshaw indicated his office did not know of Missouri Pacific’s merger with Union
Pacific and the change of address until 2008 even though the Office of the Land
Commissioner knew as early as 2003.
Because both notices were sent to the wrong address, Union Pacific failed to
redeem its mineral rights by November 22, 2005, and the Commissioner proceeded
to sell the rights. Linn Farms paid the delinquent tax obligation totaling $160.76 and
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the Commissioner issued Linn Farms the mineral rights deed for each of the parcels.
On December 5, 2005, the Linns recorded the deeds with Van Buren County.2
Unaware of the forfeiture, Union Pacific proceeded as the owner of the mineral
rights, executing an oil and gas lease with Chesapeake Exploration on February 25,
2008, which Chesapeake Exploration filed with Van Buren County on April 9, 2008.
Linn Farms discovered the lease and brought suit against Union Pacific and
Chesapeake Exploration. Linn Farms sought to quiet title in its favor and also sought
damages for intentional clouding of its title in violation of Ark. Code Ann.
§ 5-37-226(a). The parties filed cross-motions for summary judgment. Linn Farms
moved for judgment declaring it the rightful owner of the mineral rights based on the
deeds issued by the Commissioner. Union Pacific’s summary judgment motion
argued the deeds relied on by Linn Farms were invalid because the Commissioner
failed to comply with the due process requirement of notifying Union Pacific of its
tax delinquency and impending forfeiture before it issued new deeds. Chesapeake
Exploration’s motion adopted the position of Union Pacific and further asserted its
filing of the lease did not violate Arkansas law by intentionally clouding title.
The district court denied Linn Farms’s motion for summary judgment but
granted Union Pacific’s and Chesapeake Exploration’s motions, finding the
Commissioner violated Union Pacific’s due process right by failing to provide
adequate notice of the tax delinquency and forfeiture and, given Linn Farms’s deeds
were invalid, the district court found Chesapeake Exploration could not have clouded
The Commissioner, having erroneously issued the deeds to Danny and Linda2
Linn personally instead of to Linn Farms, issued corrected deeds on June 18, 2009.
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Linn Farms’s title. Linn Farms appeals contending the Commissioner’s notice to3
Union Pacific comported with the requirements of due process.
II
Linn Farms argues the district court erred in granting summary judgment in
favor of Union Pacific and Chesapeake Exploration because the notice provided to
Union Pacific was constitutionally sufficient. Summary judgment is appropriate if
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). We review a district court’s grant
of summary judgment de novo, “‘drawing all reasonable inferences, without resort to
speculation, in favor of the nonmoving party.’” Haigh v. Gelita USA, Inc., 632 F.3d
464, 468 (8th Cir. 2011) (internal quotation marks and citation omitted).
Furthermore, whether the notice provided by the Commissioner under state law was
adequate to satisfy due process is a question of law, which we also review de novo.
See Stauch v. City of Columbia Heights, 212 F.3d 425, 431 (8th Cir. 2000).
The Due Process Clause of the Fourteenth Amendment requires the
government to provide owners “notice and opportunity for hearing appropriate to the
nature of the case” before it may take property as a result of unpaid taxes. Mullane
v. Cent. Hanover Bank & Trust, Co., 339 U.S. 306, 313 (1950). The government
does not need to provide actual notice, Dusenbery v. United States, 534 U.S. 161, 170
(2002), but the notice must be “reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Mullane, 339 U.S. at 314.
The district court also rejected a statute of limitations argument raised by Linn3
Farms, determining the statute of limitations under Arkansas law had not yet run on
Union Pacific’s ability to challenge the tax sale. This issue was not appealed.
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The Supreme Court previously addressed the notice requirement of the due
process clause in another case involving a tax forfeiture in Arkansas, Jones v.
Flowers, 547 U.S. 220 (2006). Jones owned a house but failed to pay the property
taxes. As a result, the state certified his property as delinquent. Id. at 223. The
Arkansas Commissioner of State Lands mailed a certified letter to Jones at the
property’s address to inform him of the tax delinquency and the right to redeem the
property, but the letter was returned as “unclaimed.” Id. at 223-24. Two years later,
the Commissioner published a notice of public sale in the local paper, to which Linda
Flowers responded with an offer to purchase the property. Id. at 224. In an attempt
to inform Jones that his property would be sold to Flowers if he did not pay his taxes,
the Commissioner sent a second notice by certified mail to Jones at the property’s
address. Id. Again, the notice was returned as “unclaimed.” Id.
Subsequently, Flowers purchased the house. She then delivered an unlawful
detainer notice to the property. Id. The notice was served on Jones’s daughter who
was living in the house at the time, and she notified Jones of the sale. Id. Jones then
filed suit against the Commissioner, arguing the Commissioner failed to provide
adequate notice of the forfeiture in violation of his due process rights. Id.
The United States Supreme Court, holding in favor of Jones, concluded when
a notice is returned unclaimed, the government is required to take additional
reasonable steps to attempt to provide notice before a tax sale. Id. at 225. “‘[W]hen
notice is a person’s due . . . [t]he means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish it.’” Id. at 229
(quoting Mullane, 339 U.S. at 315). To illustrate this point, the Court explained,
“[n]o one desirous of actually informing [a property owner] would simply shrug his
shoulders . . . and say ‘I tried’” if, for instance, the Commissioner had “prepared a
stack of letters to mail to delinquent taxpayers, handed them to the postman, and then
watched as the departing postman accidentally dropped the letters down a storm
drain.” Id. Consequently, the Court determined after the Commissioner learned the
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original notice to Jones was returned unclaimed, the Commissioner was able to take
some additional reasonable steps, such as resending the notice via regular mail or
posting a notice on the door of the residence, but failed to do so. Id. at 225.
In the present case, the Commissioner prepared and sent two letters to Missouri
Pacific, but both were returned and marked “NOT DELIVERABLE AS
ADDRESSED-UNABLE TO FORWARD.” The Commissioner knew neither letter
was actually received by the intended recipient and thus was aware Missouri Pacific,
under the new name Union Pacific, had no actual notice of the impending forfeiture.
With knowledge the notices were undelivered, the Commissioner should have taken
any reasonable additional steps available to apprise Union Pacific of the impending
forfeiture. See id.
The Commissioner is only required to take these additional steps, however, if
there are reasonable ones available. See id. at 234 (“[I]f there were no reasonable
additional steps the government could have taken upon return of the unclaimed notice
letter, [the Commissioner] cannot be faulted for doing nothing.”). In Jones, the Court
reasoned when a certified letter is returned unclaimed, reasonable additional steps
based on the new information the letter was unclaimed included sending notice via
regular mail rather than certified mail or posting the notice on the front door. Id. at
234-35. These additional steps are not directly applicable to the instant case, though,
because unlike in Jones, the notices here were for mineral rights, not occupied
property, and were sent to an incorrect address, not merely left unclaimed.
Nevertheless, we can glean from the import of Jones whether any reasonable
additional steps existed in the present case. As the Court explained in Jones, “[w]hat
steps are reasonable in response to new information depends upon what the new
information reveals.” Id. at 234. With the letters in Jones being unclaimed, the new
information revealed no one was willing to claim the letters, not necessarily the
address was incorrect. Thus, taking fairly simple measures to get notice in the hands
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of the person residing on the property amounted to reasonable additional steps
required to provide due process in Jones. In contrast, the letters to Missouri Pacific
were returned as undeliverable as addressed, indicating an incorrect address. Thus,
any further correspondence with the known address would not have been likely to
apprise Missouri Pacific of the impending forfeiture. Instead, having learned the
address was incorrect, the next step should have been to locate a new, correct address
for Missouri Pacific.
The record indicates after he received the returned notice, Bradshaw did follow
up by asking various land men who had been trying to deal with Missouri Pacific4
whether they had an updated address for Missouri Pacific in Fort Worth, Texas. The
inquiries were unsuccessful. We note these inquiries amounted to at least one
reasonable additional step which could have been, and was taken, by the
Commissioner to provide Missouri Pacific notice. However, we conclude this was
not sufficient to meet due process because Missouri Pacific was still without notice
and other reasonable additional steps were still available.
First, we agree with the district court as to one additional step being an internal
inquiry as to “whether employees of the Commissioner’s office had a correct address
for Missouri Pacific.” Appellant’s Add. at 275. The Commissioner had sent several
other notifications to Missouri Pacific using the proper Omaha address during the
same time period the notices in the present case were sent and returned. Thus, an
inquiry within the Commissioner’s office could have revealed Missouri Pacific’s
correct address, other counties in which Missouri Pacific held land which might have
led to the correct address, or even the fact Missouri Pacific had merged with Union
Pacific, thus revealing Union Pacific’s address would be relevant for sending notice.
Linn Farms rejects this option stating it “is built on the fallacy that every person who
According to Bradshaw, land men research properties in the courthouses and4
also are responsible for acquiring signatures on leases.
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has worked in the Land Commissioner’s office since 2003 has total recall of every
document in the office and instantly transmitted that knowledge to every other
employee of the office.” Appellant’s Br. at 13. As we understand Linn Farms’s
argument, it contends an internal inquiry would likely be unsuccessful because it is
unlikely employees of the Commissioner’s office will instantly recall if they had
previously sent a notice to Missouri Pacific’s correct address. However, we note
neither Jones nor this court has ever suggested an additional step is reasonable only
if it will necessarily result in information that will lead to actual notice being
provided. It is not relevant whether an internal inquiry would have necessarily
revealed Missouri Pacific’s correct address. We are concerned only with whether
such an inquiry would be an additional step “one desirous of actually informing the
absentee might reasonably adopt to accomplish [notice].” Jones, 547 U.S. at 229.
Similar to Bradshaw’s inquiry to the land men as to whether they had an updated
address, there is no certainty an internal inquiry would have resulted in obtaining the
correct address, but given the Commissioner did have the correct address on file in
some of Missouri Pacific’s records, and given the office had recently mailed notices
to Missouri Pacific’s correct address, such an inquiry might have revealed the Omaha
address.
Linn Farms further rejects an internal inquiry because it claims it was not
reasonable given the other Commissioner’s offices are in different physical locations.
The mere requirement of travel did not preclude the Court in Jones from suggesting
the reasonable additional step of physically posting notice on the door of the
residence on the property to be forfeited. Id. at 235. Similarly, we do not find it
unreasonable to suggest the staff within the Commissioner’s office can communicate
intra-office even if the offices span various physical locations. Just as Bradshaw was
able to locate the land men at different locations, he could also travel to another office
to make a similar inquiry of others in the Commissioner’s office. Certainly, if the
distances were prohibitive, either an email or phone call could have sufficed. We
agree with the district court that even if an employee who knew of Missouri Pacific’s
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correct address “was in a different department and in a different physical location
from Bradshaw, making an internal inquiry still would have been reasonable and
practical—it is what a person who actually desired to inform mineral rights owner of
an impending tax sale would do.” Appellant’s Add. at 275.
In conjunction with an internal inquiry, the Commissioner could have also
performed a search of the Commissioner’s electronic records to determine whether
another address for Missouri Pacific was on file. The Commissioner’s records of all
properties certified as delinquent are stored electronically and include the last-known
address for the owner on record. However, a cross-county search of the system for
a particular owner, such as Missouri Pacific, is not possible because the system
records are sorted by county. Consequently, to determine whether Missouri Pacific
has an address other than the one on file in Van Buren County, the Commissioner
would have to execute a search in each county’s system individually. Linn Farms
contends the Commissioner cannot be required to engage in such an exhaustive
search of each county’s internal records because it is too complex, too burdensome,
and therefore is unreasonable. Viewing the record in the light most favorable to Linn
Farms, a full search of the Commissioner’s records does appear to be beyond the
scope of what we would define as a reasonable additional step. However, the
existence of these electronic records bolsters the reasonableness of an internal
inquiry. Had the Commissioner inquired within its own office as to whether anyone
else had encountered a working address for Missouri Pacific, it is possible that while
an individual might not recall a specific address, the person might recall a county in
or property for which Missouri Pacific was recorded as an owner. As Bradshaw
detailed in his deposition, Missouri Pacific owned numerous properties in the various
counties and several had been certified as delinquent. Thus, there is a realistic
possibility another employee in the Commissioner’s office would recall other
counties containing records with Missouri Pacific’s correct address. With this
information, the Commissioner could then access the system, based on the relevant
county, and locate Missouri Pacific’s correct address. Thus, a search of the
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Commissioner’s records, in part, could be a reasonable additional step under certain
circumstances.
Finally, we suggest the Commissioner could have performed an internet search
to locate an updated address. Bradshaw conceded in his deposition that upon learning
an address is incorrect, in addition to talking with land men, he also occasionally
searches the internet. Bradshaw Dep. at 12, 30-31. He considers such a search to be5
“just [the] normal course of business trying to find a good address.” Id. at 96. An
internet search is a relatively easy option in comparison to the allegedly onerous
search of the government’s own records and thus we conclude it is a reasonable
additional step the Commissioner could have taken.
In reaching this conclusion, we are mindful of the language in Jones suggesting
an “open-ended search” was not required of the Commissioner in that case. 547 U.S.
at 235. The Supreme Court rejected Jones’s argument insisting the Commissioner
should have conducted an “open-ended search” such as searching the phone book or
government income tax records. However, the Court qualified this conclusion by
explaining,
the return of Jones’ mail marked “unclaimed” did not necessarily mean
[the address] was an incorrect address; it merely informed the
Commissioner that no one appeared to sign for the mail before the
designated date on which it would be returned to the sender. An
open-ended search for a new address . . . imposes burdens on the State
The record suggests Bradshaw may have conducted an internet search for5
Missouri Pacific, but the record is unclear as to any details from which we can
reasonably infer such a search was actually completed or whether the search was
sufficient to comport with due process. See Haigh, 632 F.3d at 468 (stating that
although we take all reasonable inferences in favor of the non-moving party, we may
not resort to speculation).
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significantly greater than the several relatively easy options outlined
above.
Id. at 236. The Court’s decision to reject an open-ended search as a reasonable
additional step in Jones was premised on the facts of the case, namely the fact the
unclaimed letter did not suggest the address was incorrect and thus a search for a new
address would be irrelevant as well as unduly burdensome and unnecessary in light
of the simple, low-cost option of sending a letter via regular mail or posting a notice
on the front door. The mere fact an “open-ended search” such as an internet search
was more burdensome than the alternatives in Jones does not necessarily mean such
a search has been categorically rebuked. Thus, we do not agree with Linn Farms’s
argument as to Jones outright rejecting any additional open-ended searches as too
onerous because we conclude the rejection was limited to the facts of the case. And,
in a case such as the present, the Commissioner knew the address was incorrect. He
knew he should attempt to locate an updated address, and an internet search is a
particularly law-cost, low-burden option for doing so. Even more, as opposed to
Jones, Missouri Pacific is a business and it is presumably easier to find an address for
a business on the internet than for an individual person. We therefore suggest the
Commissioner could have engaged in an internet search as a reasonable additional
step in locating Missouri Pacific’s correct address in order to provide adequate notice.
Ultimately, we note it is not this court’s duty “‘to prescribe the form of service
that the [government] should adopt,’” id. at 238 (alternation in original) (quoting
Greene v. Lindsey, 456 U.S. 444, 455 n.9 (1982)), but rather it is sufficient to
conclude additional reasonable steps were available but were not taken. Id. (“It
suffices for present purposes that we are confident that additional reasonable steps
were available for Arkansas to employ before taking Jones’ property.”). Taking into
account the facts of this situation and the precedential value of Jones, we hold the
Commissioner could have taken reasonable additional steps that did not impose a
significant burden in order to inform Missouri Pacific—and ultimately Union
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Pacific—of the impending forfeiture. The Commissioner’s failure to do so left Union
Pacific “‘no better off than if the notice had never been sent.’” Id. at 230 (quoting
Malone v. Robinson, 614 A.2d 33, 37 (D.C. App. 1992)).
On a final note, we turn to Linn Farms’s argument as to whether we should
reject Union Pacific’s challenge to the adequacy of the notice because Union Pacific
“has not identified a single instance of a departure from the requirements of Arkansas
law. . . . Everyone did what they were supposed to do except the railroad failed to
provide the correct address.” Appellant Br. at 15-16. The Commissioner did comply
with Arkansas law requiring the Commissioner to notify a tax-delinquent property
owner of his “right to redeem by paying all taxes, penalties, interest, and costs” by
certified mail to the owner’s last known address. Ark. Code Ann. § 26-37-301(a)(1).
“If the notice by certified mail is returned undelivered . . . the Commissioner of State
Lands shall send a second notice to the owner . . . at any additional address
reasonably identifiable through the examination of the real property records” such as
deeds, mortgages, or other recorded documents filed with the county where the
property is located. Id. § 26-37-301(a)(4). Even though the Commissioner fully
complied with Arkansas law, mere compliance with a state’s notice statute may not
be sufficient to satisfy the constitutional obligation of providing adequate notice as
required under Mullane and the Due Process Clause. See Jones, 547 U.S. at 232
(rejecting the state’s argument that compliance with Arkansas’s notice statute is
necessarily sufficient to satisfy due process). Even more, Missouri Pacific’s failure
to update its address is not dispositive. The Court in Jones clarified, “[t]he
Commissioner does not argue that Jones’ failure to comply with a statutory obligation
to keep his address updated forfeits his right to constitutionally sufficient notice, and
we agree.” Id. As a result, it is irrelevant that Union Pacific failed to show the
Commissioner did not comply with Arkansas law, and it is also irrelevant either
Missouri Pacific or Union Pacific failed to update the address with the county.
Instead, we conclude, based on the analysis stated above, the notice provided by the
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Commissioner was inadequate under the circumstances of the case even though it
complied with Arkansas law.
III
We affirm the district court’s decision granting summary judgment in favor of
Union Pacific and Chesapeake Exploration.
COLLOTON, Circuit Judge, dissenting.
The question presented on this appeal is whether the State of Arkansas
deprived Union Pacific Railroad Company of property without due process of law
when the Commissioner of State Lands forfeited and sold mineral rights owned by
Union Pacific. Because the Commissioner gave notice that was reasonably calculated
to apprise Union Pacific of a tax delinquency on the property, an impending forfeiture
of the property to the State, and a forthcoming sale of the mineral rights, there was
no violation of the Due Process Clause of the Fourteenth Amendment. See Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
This case involves mineral rights in certain parcels of land in Van Buren
County, Arkansas. Under Arkansas law, “[w]hen severed mineral interests are
forfeited to the state and conveyed by certification to the Commissioner of State
Lands for nonpayment of property taxes, title to the severed mineral interests shall
vest in the State of Arkansas in the care of the Commissioner of State Lands.” Ark.
Code Ann. § 26-37-314(a)(1). The Commissioner is then required by statute to
“notify the owner of record by certified mail at his or her last known address.” Id.
§ 26-37-314(a)(2). After a redemption period, the Commissioner is directed to sell
the mineral rights to the surface owners if they opt to purchase them. Id. § 26-37-
314(b)(1).
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Union Pacific, by virtue of a merger with Missouri Pacific Railroad Company,
owned mineral rights in parcels of land in Van Buren County. It is undisputed that
Union Pacific failed to pay delinquent taxes on the property, and that the
Commissioner sent two notices of forfeiture and forthcoming sale of mineral rights
to Missouri Pacific at the address last recorded with the Van Buren County Collector.
Under Arkansas law, Union Pacific had an obligation to furnish its correct address
to the county collector of taxes, Ark. Code Ann. § 26-35-705, but it failed to do so.
As a result, the Commissioner mailed the notices to a former address of Missouri
Pacific. The notices were returned with markings that the letters were not deliverable
as addressed, and that the postmaster was unable to forward them. The Commissioner
later sold the mineral rights to the surface owners, Linn Farms and Timber Limited
Partnership.
Relying on Jones v. Flowers, 547 U.S. 220 (2006), the court reasons that the
Due Process Clause required the Commissioner to take additional steps to apprise
Union Pacific of the impending forfeiture after the notices were returned as
undeliverable. But this conclusion overstates the narrow holding of Jones. “What
steps are reasonable in response to new information depends upon what the new
information reveals.” Id. at 234. The certified letter in Jones was returned
unclaimed, and the returned letter did not reveal whether the address of record was
incorrect. Id. at 234, 236. It was as though the Commissioner had simply “watched
as the departing postman accidentally dropped the letters down a storm drain.” Id.
at 229. Under those circumstances, the Court held that the State was required to take
another step, such as to send the notice again by regular mail or to post notice on the
front door of the property. Id. at 235.
Here, the Commissioner knew that the postmaster had attempted to deliver the
letters, but that the address was incorrect, and that the letters could not be forwarded.
At that point, Jones demonstrates, the Due Process Clause did not require “[a]n open-
ended search for a new address—especially when the State obligates the taxpayer to
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keep his address updated with the tax collector.” Id. at 236. This is so even when a
new address could be located through such simple means as looking in the phone
book or examining readily available government tax records. Id. at 235-36. The
Court distinguished between an “open-ended search” for a new, correct address (not
required), and a renewed effort to make delivery at an address of record that may have
been correct (required). This distinction turned not on the degree of effort
involved—it may be easier to look up a new address in a phone book than to travel
to an address of record and post a notice on the door—but on the nature of the effort.
The court’s holding that “the next step should have been to locate a new,
correct address for Missouri Pacific,” ante, at 8, is contrary to the limitation of Jones.
Just as the Constitution did not require the Commissioner in Jones to undertake
simple measures to find a new, correct address for the taxpayer, the Due Process
Clause did not require the Commissioner here to make internal inquiry of an
indefinite number of state employees at different locations, to search the agency’s
electronic records, or to conduct an Internet search to locate an updated address for
Missouri Pacific. Once the Commissioner determined that notice had been sent to the
last known address of Missouri Pacific, that the address was incorrect, and that the
letters could not be forwarded, the Commissioner had discharged his obligation under
the Due Process Clause by reasonably attempting to provide actual notice. See
Dusenbery v. United States, 534 U.S. 161, 169-70 (2002). The State’s forfeiture and
subsequent sale of the mineral rights to Linn Farms thus complied with the
Constitution.
For these reasons, I would reverse the judgment of the district court.
______________________________
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