Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE RICHARD A. FORSGREN ) REVOCABLE LIVING FAMILY)
PRESERV ATION TRUST: CLAYTA )
FORSGREN, RICHARD A. FORSGREN, )

RICHARD E. FORSGREN, TERR LYNN )

TRUSTEES )

HAGER, and BARBARA ANN THOMPSON,) No.07-14L

~ ) ~ )

Plaintiff, )

) Hon. Margaret M. Sweeney
) )

THE UNITED STATES OF AMERICA, )

Defendant. )
)

DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION AND MEMORANDUM.IN SUPPORT THEREOF
MATTHEW J. McKEOWN Acting Assistant Attorney General Environment & Natural Resources Division
EN Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663
BRUCE K. TRAUB

Tel: (202) 305-0238 Fax: (202) 305-0267

OF COUNSEL:

Steven M. Hoffman Attorney Office of the Solicitor
Rocky Mountain Regional Office

United States Dept. ofInterior
755 Parfet Street, Room 151

Lakewood, CO 80215

Diane M. Connolly Deputy Regional Attorney Offce of the General Counsel United States Dept. of Agriculture Mountain Region P.O. Box 25005 Lakewood, CO 80225

Dated: March 12, 2007

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TABLE OF CONTENTS MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 MEMORANDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. II. III. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. B. Standard of Review under RCFC 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . 9 It Already Has Been Found that Plaintiff's Claims Accrued in 1999 and Are Therefore Barred by the Statute of Limitations . . . . . . . . . 10 1. 2. 3. Claim One is Barred by the Statute of Limitations . . . . . . . . . . . 10 Equitable Tolling Does Not Apply . . . . . . . . . . . . . . . . . . . . . . . 13 Additionally, this Court Lacks Jurisdiction over Claim Two Because It Fails to Allege a Taking within this Court's Subject Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 a. Claim Two Should Be Dismissed Because Government Inaction Cannot Form the Basis for a Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The Single Government Act Resulting in the Alleged Flowage Easement in Claim Two Relates Back to the CCC Ponds and Therefore Is Barred by the Statute of Limitations . . . . . . . . . . . . . . 18

b.

IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF AUTHORITIES CASES Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Alost v. United States, 73 Fed. Cl. 480 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Barnes v. United States, 538 F.2d 865 (Ct. Cl. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B&G Enterprises, Ltd. v. United States, 43 Fed. Cl. 523 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Blaze Constr., Inc. v. United States, 57 Fed. Cl. 488 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Boling v. United States, 220 F.3d 1365 (Fed. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18 Caldwell v. United States, 391 F.3d 1226 (2004), cert. denied, 126 S.Ct. 366 (2005) . . . . . . . . . . . . . . . . . . . . . . 11 Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Central Pines Land Co. v. United States, 61 Fed. Cl. 527 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Figueroa v. United States, 57 Fed. Cl. 488 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Forsgren v. United States, 64 Fed. Cl. 456 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Forsgren v. United States, 73 Fed. Cl. 135 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Hatter v. United States, 203 F.3d 795 (Fed. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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Hopland Band of Pomo Indians v. United States, 855 F.2d 1334 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14 Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16 Japanese War Notes Claimants Ass'n v. United States, 373 F.2d 356, 178 Ct. Cl. 630 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Juda v. United States, 13 Cl.Ct. 667 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Last Chance Mining Co. v. United States, 12 Cl. Ct. 551 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 MacLean v. United States, 454 F.3d 1334 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Maher v. United States, 314 F.3d 600 (Fed. Cir. 2002), cert. denied, 540 U.S. 821 (2003) . . . . . . . . . . . . . . . . . 9 Newby v. United States, 57 Fed. Cl. 283 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Patton v. United States, 64 Fed. Cl. 768 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Pendleton v. United States, 47 Fed. Cl. 480 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57 (1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Sunrise Village Mobile Home Park, L.C., v. United States, 42 Fed. Cl. 392 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Floyd Acceptances, 74 U.S. 666 (1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Toxgon Corp. V. BNFL, Inc., 312 F.3d 1379 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Truckee-Carson Irrigation Dist. v. United States, 14 Cl. Ct. 361, aff'd, 864 F.2d 149 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States v. Dow, 357 U.S. 17 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 18

STATUTES 28 U.S.C. § 1346(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 28 U.S.C. § 1491(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 18, 19 28 U.S.C. § 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 28 U.S.C. § 2501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 6, 7, 8, 19

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EXHIBIT

A.

Letter from G. Evan Pritchard to Karen Budd-Falen (Nov. 18, 2005) (with attachments thereto)

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE RICHARD A. FORSGREN REVOCABLE LIVING FAMILY PRESERVATION TRUST: CLAYTA FORSGREN, RICHARD A. FORSGREN, RICHARD E. FORSGREN, TERRI LYNN HAGER, and BARBARA ANN THOMPSON, TRUSTEES ) ) ) ) ) ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ________________________________________ )

No. 07-14L Hon. Margaret M. Sweeney

DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION AND MEMORANDUM IN SUPPORT THEREOF MOTION Pursuant to Rules 12(b)(1) and 12(h)(3) of the Rules of the United States Court of Federal Claims ("RCFC"), Defendant, United States of America, hereby respectfully moves to dismiss the Complaint for lack of jurisdiction. As set forth in the following memorandum, because both of Plaintiff's claims accrued by December 31, 1999, they were untimely filed on January 10, 2007, which is more than one year after the statute of limitations period under 28 U.S.C. § 2501 had expired. Claim Two also should be dismissed because it fails to allege a taking over which this Court has jurisdiction under 28 U.S.C. § 1491(a). Plaintiff's Complaint therefore must be dismissed, with prejudice, for lack of jurisdiction. Defendant's memorandum in support of its motion follows.

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MEMORANDUM The takings claims in this case allegedly arise out of alterations that were made in 1995 to ponds located near Plaintiff's property. Plaintiff alleges that these alterations caused excessive water and ice to accumulate on its property between 1995 and 1999, and again in 2005, resulting in the taking of its property rights and interests.1/ In Claim One, Plaintiff seeks just compensation for the alleged taking of a flowage easement across its property beginning in1995 as a result of excess water escaping from the nearby ponds. In Claim Two, Plaintiff seeks just compensation for the taking of a flowage easement beginning in 2005 attributable to the alleged failure by the United States to maintain a subsurface drain on government property that was intended to intercept groundwater before it reached Plaintiff's property. As explained in Section III.B. of this memorandum, Plaintiff's claims accrued more than six years prior to the filing of the Complaint. Thus, this suit is time-barred by the applicable statute of limitations, 28 U.S.C. § 2501. Additionally, in Claim Two, Plaintiff alleges that the government's failure to maintain the subsurface drain resulted in continued flooding. Not only is Claim Two time barred, as explained below, but it also fails to assert facts sufficient to warrant treatment under takings law. If anything, Claim Two asserts a tort over which this Court does not have jurisdiction pursuant to 28 U.S.C. § 1491(a). For these reasons, the Complaint must be dismissed with prejudice.

The United States does not dispute Plaintiff's factual assertions in its Complaint for the purposes of this motion only. The United States, however, expressly reserves its right to later dispute the facts asserted by Plaintiff if the Court should find that it has jurisdiction over this action. The United States disputes Plaintiff's legal conclusions asserted in its Complaint. -2-

1/

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I.

FACTUAL BACKGROUND Plaintiff's Trustees, Clayta Forsgren and her deceased husband, Richard "Dick" Forsgren,

purchased undeveloped property on Pine Creek near the town of Pinedale, Wyoming in 1966.2/ Compl. ¶¶ 16-17. The property is approximately 1,000 feet from the Civilian Conservation Corps Ponds ("CCC Ponds" or "Ponds") that are located on federal land that abuts the Forsgren property to the east. Id. ¶¶ 14, 16, and 18. The federal land is managed by the United States Department of Interior's Bureau of Land Management ("BLM") and the United States Department of Agriculture's Forest Service ("Forest Service"). Id. ¶¶ 12-14. Pine Creek forms the northern boundary of the Forsgren property, and "lies approximately 100 feet to the north of the Forsgrens' residential foundation." Id. ¶ 34. In 1993, representatives from BLM and the Forest Service, along with concerned individuals and representatives from other federal, state, and local government agencies, (collectively, the "Committee"), began to discuss the feasibility of recharging the CCC Ponds. See Compl. ¶ 24. An Environmental Assessment ("EA") was performed in April 1994. Id. ¶ 26. To reduce the risk of flooding neighboring property, the EA identified potential mitigation measures, including maintaining the water in the southernmost pond at the existing level. See id. ¶ 29. The ponds were recharged with water in the spring of 1995. Compl. ¶ 31. Mr. Forsgren reported having water problems on his property at a Committee meeting held on September 27, 1995. Compl. ¶ 32. In an attempt to mitigate the problem, Mr. Forsgren excavated a surface

The Forsgrens conveyed the property to Plaintiff, the Richard A. Forsgren Revocable Living Family Preservation Trust ("Forsgren Family Trust"), in 1991. Compl. ¶¶ 10, 16. -3-

2/

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drain on his property in the fall of 1996, to carry runoff into nearby Pine Creek. Id. ¶ 39. The surface drain provided only a temporary solution, however, as ice accumulated in the ditch and blocked the flow of water. Id. ¶ 40. In June, 1997, the Sublette County Assessor "lowered the assessed value of the Forsgren property citing water problems as the reason for the reduction in assessed property value." Id. ¶ 42. In August, 1997, after an NRCS geologist visited the Forsgren property, the Forsgrens were told that the surface ditch was operating properly and effectively carrying water away. Id. ¶¶ 43, 45. The NRCS also told the Forsgrens that their water problems were most likely due to "higher than average snowpack in the past two consecutive years causing abnormally high runoff downstream." Id. ¶ 45. Allegedly, "[d]uring the winter of 1997-1998, there continued to be extensive surface water flooding in the backyard, as well as under the house." Id. ¶ 46. Flooding occurred again "[d]uring the winter of 1998-1999 . . . around three sides of the house [resulting in] . . . six inches of solid ice covering the entire rear yard from the foundation of the house to Pine Creek." Id. ¶ 48. During the spring thaw in 1999, "more signs of damage became obvious." Id. ¶ 51. The "[a]dditional damage included: (1) a wall to wall crack in the ceiling in the kitchen, (2) kitchen cabinet doors that no longer hung properly, (3) the kitchen sink pulled away from the wall, (4) sticking windows and sliding glass doors, and (5) audible creaking noises throughout the house." Id. In June, 1999, "Mrs. Forsgren notified the local NRCS [office] that the ice had undermined the structural integrity of the foundation of the house . . . [and] that the foundation was currently being supported by a large jack and some cinder blocks." Id. ¶ 52. After meeting with Mrs. Forsgren in February, 1999, "[b]ecause the original surface ditch -4-

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was unsuccessful, the BLM agreed to consider the possibility of installing a subsurface drainage ditch on its property to more effectively carry surface runoff away from the Forsgren property." Id. ¶ 49. After studying various options, the "FS and BLM each contributed funding and technical assistance in conjunction with the preparation of the . . . subsequent drain project." Id. ¶¶ 50, 55. In November 1999, at its expense, the federal government installed on its property a subsurface drain located approximately 20 yards to the east of the Forsgren property line. Id. ¶¶ 56, 58, 59. Plaintiff alleges that the subsurface drain operated properly from 1999 until late fall 2005. Compl. ¶ 58. "In 2005, failure by the Defendant to perform any maintenance on the [subsurface] drain caused the drain to stop functioning. This caused water to accumulate on the Forsgren property." Id. ¶ 61. Allegedly, as a result of the flooding, "[d]amage to the Forsgren property currently includes: (1) foundation failure, (2) cracks in the walls, (3) windows, doors, and other fixtures that no longer hang properly, (4) audible creaking noises throughout the house, (5) dead grass and landscaping, and (6) uneven lawn." Id. ¶ 62. Plaintiff seeks "damages which include the fair market value of the property [in 2006, $1.5 million], the cost to repair the damage to the home and yard [estimated at $650,000], and the rental value for that period of time which Plaintiff was denied all use and enjoyment of their [sic] property." See Compl. ¶ 64 & at 22 (Requests for Relief). II. PROCEDURAL BACKGROUND On January 10, 2007, Plaintiff filed the instant suit ("Forsgren III"). This is the third suit filed by the Plaintiff against the United States alleging damage to its property arising from the -5-

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alterations made to the CCC Ponds. On July 28, 2003, Plaintiff filed a complaint in the United States District Court for the District of Wyoming, Forsgren v. United States, No. 3-CV-1040-B (D. Wyo.) ("Forsgren I"). Compl. ¶ 65. Plaintiff then filed a complaint against the United States in the Court of Federal Claims on July 27, 2004, Forsgren v. United States, CFC No. 04-1223L ("Forsgren II"), while Forsgren I still was pending. Id. ¶¶ 69, 70. Forsgren I subsequently was dismissed on August 16, 2004. Compl. ¶ 69. In Forsgren II, Plaintiff alleged that the United States effected a temporary taking of its property through a water flowage easement. See Forsgren v. United States, 64 Fed. Cl. 456, 457 (2005). In 2004, before taking discovery, Defendant filed a motion to dismiss Forsgren II for lack of jurisdiction, arguing that Plaintiff's takings claim was barred by the applicable statute of limitations, 28 U.S.C. § 2501, and that Plaintiff's claim for equitable relief must be dismissed because the Court has no jurisdiction over such claims. See Forsgren, 64 Fed. Cl. at 457, 460. Chief Judge Edward J. Damich granted in part and denied in part Defendant's motion on March 21, 2005. Id. at 457. The Court held that Plaintiff's takings claim accrued in 1999 and was, therefore, not barred by the statute of limitations, 28 U.S.C. § 2501. Id. at 459 ("When the facts are viewed most favorably to Plaintiffs, . . . it is clear that the statute of limitations should not have begun to run against Plaintiffs until 1999."). The Court also dismissed Plaintiff's claims for equitable relief. Id. at 459-60. At the close of fact discovery, in 2006, Defendant filed a motion to dismiss Forsgren II on the ground that this Court did not have jurisdiction under 28 U.S.C. § 1500, because it was filed while Forsgren I still was pending. See Forsgren v. United States, 73 Fed. Cl. 135, 136 (2006). Defendant moved on the alternative ground that Forsgren II was barred by the statute of -6-

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limitations, 28 U.S.C. § 2501, because facts learned during discovery showed that the Plaintiff was aware of the extent of its damages by 1997. Id. at 143-44. While the Court agreed with Defendant that it lacked jurisdiction pursuant to 28 U.S.C. § 1500, the Court rejected Defendant's argument that the takings claim accrued in 1997, holding that the newly discovered evidence was insufficient to overcome Chief Judge Damich's earlier finding on claim accrual. Id. The Court directed the clerk to dismiss Forsgren II with prejudice. Id. at 144. Plaintiff then sought reconsideration of the Court's dismissal with prejudice, requesting that the Court amend its order to dismiss without prejudice. Compl. ¶ 73. When granting Plaintiff's motion for reconsideration on November 15, 2006, the Court noted that "it dismissed plaintiffs' claims with prejudice because it was apparent that the Tucker Act's six-year limitations period would have prevented plaintiffs from refiling their complaint in the Court of Federal Claims." See Forsgren II, Order at 4 (Nov. 15, 2006) (Dkt. No. 46). The Court continued, "[a]s noted above, the Chief Judge found that plaintiffs' claims accrued in 1999. Thus, the statute of limitations would have expired no later than December 31, 2005." Id. To circumvent the statute of limitations problem, the Court then envisioned a scenario "in which plaintiffs seek reinstatement of their district court complaint pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and subsequently seek transfer of the complaint to the Court of Federal Claims." Id. at 4-5. The Court, therefore, granted Plaintiff's request for reconsideration and amended its dismissal of Forsgren II to a dismissal without prejudice. Id. at 5. Final judgment was entered in Forsgren II on November 20, 2006 (Dkt. No. 47), and no appeal was taken. Plaintiff apparently did not attempt to revive the district court action but, instead, filed -7-

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this new action on January 10, 2007. III. ARGUMENT Plaintiff's claims are barred by the applicable six-year statute of limitations, 28 U.S.C. § 2501. Because Plaintiff filed its Complaint on January 10, 2007, its claims are barred if they accrued prior to January 10, 2001. Chief Judge Damich previously determined that Plaintiff's takings claim arising from the alleged flooding caused by the CCC Ponds, accrued no later than December 31, 1999. Forsgren, 64 Fed. Cl. at 458-59. This Court subsequently refused to disturb Chief Judge Damich's conclusion on the accrual date. Forsgren, 73 Fed. Cl. at 143-44; see also Forsgren II, Order at 4 (Nov. 15, 2006) (Dkt. No. 46). Moreover, Plaintiff should be collaterally estopped from relitigating when its takings claim accrued, because that issue previously was litigated in Forsgren II. Accordingly, because this Court previously determined that Plaintiff's Fifth Amendment takings claim accrued no later than December 31, 1999, Plaintiff's takings claims plainly are barred by the statute of limitations. Plaintiff asserts in its Complaint that the statute of limitations should be equitably tolled, but it fails to assert any grounds supporting equitable tolling. Rather, Plaintiff disingenuously suggests that it is somehow Defendant's fault that Plaintiff untimely filed its Complaint in 2007, because the United States allegedly "did not raise section 1500 until [its] second motion to dismiss, filed on April 28, 2006." See Compl. ¶ 75. But, as explained below, this argument is neither factually correct, nor legally sufficient. Further, Plaintiff seeks to avoid the statute of limitations by asserting in Claim Two that the government failed to maintain the subsurface drain installed in 1999. In Claim Two, however, Plaintiff does not identify any new government action. Plaintiff asserts in Claim Two -8-

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an insufficient claim based upon government inaction ­ the failure to maintain the subsurface drain. Government inaction, however, cannot support a takings claim. The only causative governmental action that Plaintiff alleged in its Complaint is the modification of the CCC Ponds in 1995. Accordingly, Claim Two asserts no new takings claim and also is time barred. Accordingly, the Complaint should be dismissed in its entirety. A. Standard of Review under RCFC 12(b)(1)

Whether this Court has subject matter jurisdiction to hear a plaintiff's claims is a question of law. See Toxgon Corp. V. BNFL, Inc., 312 F.3d 1379, 1381 (Fed. Cir. 2002) ("the existence of subject matter jurisdiction is a question of law"); Maher v. United States, 314 F.3d 600, 603 (Fed. Cir. 2002) (noting that the Federal Circuit reviews de novo whether the Court of Federal Claims possessed jurisdiction because it is a question of law), cert. denied, 540 U.S. 821 (2003). In the Court of Federal Claims, the statute of limitations `is a jurisdictional requirement attached by Congress as a condition of the government's waiver of sovereign immunity and, as such, must be strictly construed.'" MacLean v. United States, 454 F.3d 1334, 1336 (Fed. Cir. 2006) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed. Cir.1988)). "[U]nder [Court of Federal Claims] Rule 12(h)(3) this court is mandated to. . . dismiss the action `[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter . . . .'" Truckee-Carson Irrigation Dist. v. United States, 14 Cl. Ct. 361, 368, aff'd, 864 F.2d 149 (Fed. Cir. 1988) (quoting RCFC 12(h)(3)) (emphasis as in original). When deciding a motion to dismiss based on a lack of subject matter jurisdiction, pursuant to RCFC 12(b)(1), "the court must assume that all undisputed facts alleged in the -9-

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complaint are true and must draw all reasonable inferences in the non-movant's favor." Newby v. United States, 57 Fed. Cl. 283, 290 (2003). The Court, however, may consider matters outside the pleadings when deciding whether it has jurisdiction. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993); see also Forsgren, 73 Fed. Cl. at 138; Juda v. United States, 13 Cl.Ct. 667, 670 (1987) (a motion for lack of subject matter jurisdiction under Rule 12(b)(1) "is not converted to a motion for summary judgment when the court considers matters outside the pleadings"). Additionally, "[l]egal conclusions, deductions, or opinions couched as factual allegations are not given a presumption of truthfulness." Figueroa v. United States, 57 Fed. Cl. 488, 497 (2003) (quoting Blaze Constr., Inc. v. United States, 27 Fed.Cl. 646, 650 (1993)) (internal quotation marks omitted). "Once the court's subject matter jurisdiction is put into question, it is `incumbent upon [the plaintiff] to come forward with evidence establishing the court's jurisdiction. [The plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.'" Patton v. United States, 64 Fed. Cl. 768, 773 (2005) (quoting Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)) (alterations as in original); see also Forsgren,73 Fed. Cl. at 138. As discussed below, as a matter of law, Plaintiff cannot meet its burden of showing that this Court has jurisdiction. B. It Already Has Been Found that Plaintiff's Claims Accrued in 1999 and Are Therefore Barred by the Statute of Limitations 1. Claim One is Barred by the Statute of Limitations

Claim One in this action arises out of the same facts as Plaintiff's prior takings claim in Forsgren II. Cf. Compl. ¶¶ 82-96; with Forsgren, 64 Fed. Cl. at 457; see also Forsgren II, Compl.

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¶¶ 73-86. For example, Plaintiff alleges that "[t]he flooding began in 1995, the year that the CCC Ponds were recharged. The flooding was most extensive from the winter of 1997 through the spring of 1999." Compl. ¶ 88. In its 2004 Complaint, Plaintiff alleged the same facts, verbatim. See Forsgren II, Compl. ¶ 77. For another example, Plaintiff alleges that "the excessive surface runoff from the CCC Ponds onto the Forsgren property has caused and is causing substantial damage to the Forsgren house and yard, and has caused the Forsgrens to undertake remedial measures to reduce the excessive flooding at their own expense." Compl. ¶ 90 (emphasis added). With the exception of the underlined text, Plaintiff made the same assertion in 2004. See Forsgren II, Compl. ¶ 79. It cannot be genuinely disputed that Claim One arises from the same alleged flooding caused by the CCC Ponds that Plaintiff complained about in its 2004 takings action. Effectively, the only perceptible difference between Claim One and Plaintiff's 2004 takings claim is that, in 2004, Plaintiff alleged a temporary taking of a flowage easement, while it now identifies no ending date for the taking. Whether a temporary or a permanent taking is alleged, however, does not affect the accrual date. See Caldwell v. United States, 391 F.3d 1226, 1233-35 (2004), cert. denied, 126 S.Ct. 366 (2005) (a Notice of Interim Trail Use ("NITU") triggers the statute of limitations regardless of whether the process triggered results in a temporary or permanent taking); see also United States v. Dow, 357 U.S. 17, 23-26 (1958) (a taking occurs when the government takes physical possession of the property, depriving the owner of its use, regardless of whether the government later surrenders possession, altering "the property interest taken­from full ownership to one of temporary use and occupation"). Accordingly, the accrual date of Plaintiff's takings claim asserted in Claim One is the same date - 11 -

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upon which its 2004 takings claim accrued ­ specifically, 1999. In its 2005 opinion, Chief Judge Damich found that Plaintiff's takings claim accrued "when Plaintiff[] should have reasonably foreseen the extent of the damage to [its] property," Forsgren, 64 Fed. Cl. 456, 459 (emphasis in the original) (citing Boling v. United States, 220 F.3d 1365, 1371 (Fed. Cir. 2000)). Viewing the facts in the light most favorable to Plaintiff, the Court concluded that Plaintiff's claim accrued no later than December 31, 1999, noting that "Mrs. Forsgren claims that it was not until early 1999 that she began to notice huge cracks in her ceilings, cabinet doors that would no longer hang properly, and sticking windows and doors." Forsgren, 64 Fed. Cl. at 459. The Court also cited Plaintiff's claim that it was not until later in that same year that a local builder examined the house and found that the kitchen foundation had been partially destroyed by water and ice, that the girder supports in the living room had heaved or buckled, and that the ground beneath the living room was so wet that it had caused the foundation to sink. Id. Based upon these representations, the Court concluded that Plaintiff's takings claim accrued in 1999. Id. When denying Defendant's April 28, 2006 motion for summary judgment based upon the statute of limitations, this Court agreed with Judge Damich's conclusion that Plaintiff's takings claim accrued in 1999. See Forsgren v. United States, 73 Fed. Cl. 135, 143-44 (2006); see also Forsgren II, Order at 4 (Nov. 15, 2006) (Dkt. No. 46) ("[T]he statute of limitations would have expired no later than December 31, 2005."). Moreover, under the collateral estoppel doctrine, Plaintiff cannot relitigate in this action the date upon which its takings claim accrued as that issue already was litigated in Forsgren II to finality. See Sunrise Village Mobile Home Park, L.C., v. United States, 42 Fed. Cl. 392, 401-03 (1998) (collaterally estopping plaintiff from relitigating an issue that was previously litigated in a - 12 -

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district court action).3/ Because, as noted above, Claim One is based upon the same factual allegations as Plaintiff's takings claim brought in 2004, it also accrued in 1999. Accordingly, Plaintiff's takings claim asserted in Claim One expired on December 31, 2005, and was untimely filed on January 10, 2007. 2. Equitable Tolling Does Not Apply

Plaintiff argues that the application of the statute of limitations to its Complaint should be tolled. See Compl. ¶ 97. To the contrary, because Plaintiff failed to diligently pursue its takings claim, and because Plaintiff does not allege that the government fraudulently or deliberately concealed any material fact, equitable tolling does not apply. Plaintiff cites Irwin v. Dept. of Veterans Affairs for the proposition that "federal courts have allowed equitable tolling when the claimant has filed a defective pleading during the statutory period." Compl. ¶ 97 (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)). But Irwin lends no support for Plaintiff's position. In Irwin, the plaintiff had 30 days from the date of receipt of notice of a final action taken by the EEOC (a "right-to-sue" letter) within which to file suit. Irwin, 498 U.S. at 91. Plaintiff's attorney was out of the country, however, when the right-to-sue letter arrived at counsel's office, so the complaint was filed 44 days after receipt of the letter. Id. Irwin argued that the statute of limitations should be tolled because his lawyer was away when the EEOC notice was received, and that he filed within 30 days from the date on which he personally received notice. Id. at 96.

Defendant reserves the right to further argue estoppel, if the Plaintiff attempts to relitigate the date upon which its takings claim accrued. - 13 -

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The Supreme Court disagreed, holding that "the principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect." Id. When refusing to toll the statute of limitations in Irwin, the Supreme Courted noted that it has allowed equitable tolling where the claimant "actively pursued his judicial remedies by filing a defective pleading during the statutory period," citing cases where tolling was allowed when the plaintiff timely filed his complaint in the wrong court, or where plaintiff timely filed a defective class action, tolling the limitations period for the individual claims of class members. Id. at 96 & n.3. The Court also noted that it has equitably tolled a statute of limitations where the complainant "has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass."4/ Id. at 96 & n. 4. The Supreme Court, however, has "been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Id. at 96 (citation omitted). Here, like in Irwin, equitable tolling should not be extended to "what is at best a garden variety claim of excusable neglect," because Plaintiff failed to exercise due diligence. First, Plaintiff does not allege that it "has been induced or tricked by [its] adversary's misconduct into allowing the filing deadline to pass." See Irwin, 498 U.S. at 96 & n.4; see also Compl. ¶ 75 (alleging that Defendant did not bring to Plaintiff's attention an issue arising under

4/

See also Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1482 (Fed. Cir. 1994) ("To toll the statute of limitations, a claimant must show either that defendant has concealed its acts with the result that plaintiff was unaware of their existence or it must show that its injury was inherently unknowable at the accrual date.") (quoting Japanese War Notes Claimants Ass'n v. United States, 373 F.2d 356, 359, 178 Ct. Cl. 630 (1967)) (internal quotation marks omitted); Hopland Band of Pomo Indians, 855 F.2d at 1577 (tolling may be appropriate if the "government fraudulently or deliberately conceals material facts" from the Plaintiff). - 14 -

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28 U.S.C. § 1500 until Defendant filed its motion to dismiss on April 28, 2006, but failing to allege that Defendant engaged in any wrongful conduct). Although Plaintiff alleges in its Complaint that it did not learn of the jurisdictional problem under 28 U.S.C. § 1500 until the government moved to dismiss on April 28, 2006 (see Compl. ¶ 75), that simply is not correct. On November 18, 2005, counsel for Defendant contacted by telephone counsel for Plaintiff to notify Plaintiff that the Court of Federal Claims lacked jurisdiction pursuant to 28 U.S.C. § 1500, because Plaintiff had filed its takings action while another action based on the same operative facts was pending against the United States in the U.S. District Court for the District of Wyoming. See Letter from G. Evan Pritchard to Karen Budd-Falen at 2 (Nov. 18, 2005) (attached hereto as Ex. A); see also Compl. ¶¶ 65, 70; and see Section II, supra. Plaintiff thus was aware of a potential jurisdictional problem under 28 U.S.C § 1500 approximately six weeks before its takings claim expired. Although Plaintiff could have timely dismissed Forsgren II and refiled within the statutory period, it chose not to do so. Accordingly, Defendant in no way induced Plaintiff into allowing the filing deadline to pass. Moreover, because Plaintiff filed Forsgren I without serving it upon Defendant (see Compl. ¶ 66), and then filed Forsgren II, it was in a better position than Defendant to know that 28 U.S.C. § 1500 might deprive the Court of jurisdiction over Forsgren II. Plaintiff knew, or should have known, that its Court of Federal Claims and district court actions were pending simultaneously, and Plaintiff is charged with knowing the law. See Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 68 (1910) ("ignorance of the law will not excuse"); The Floyd Acceptances, 74 U.S. 666, 682 (1868) ("Every citizen of the United States is supposed to know the law. . . ."). Plaintiff, therefore, cannot shift blame for its late filing upon the Defendant. To - 15 -

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the contrary, like the plaintiff in Irwin, the Plaintiff here "failed to exercise due diligence in preserving [its] legal rights," and it provides no valid excuse in its Complaint for allowing the statute of limitations to expire. Accordingly, the statute of limitations should not be tolled. 3. Additionally, this Court Lacks Jurisdiction over Claim Two Because It Fails to Allege a Taking within this Court's Subject Matter Jurisdiction

In a transparent attempt to avoid the statute of limitations, Plaintiff asserts in Claim Two that Defendant failed to maintain the subsurface drain installed on the government's property in 1999, thereby, resulting in a permanent taking of a flowage easement across Plaintiff's property. See Compl. ¶¶ 49, 54, 56, 58-61, 99-104. Claim Two, therefore, is not based upon any affirmative action by the government, but upon an alleged failure to act. As discussed below, government inaction cannot form the basis for a takings claim, warranting dismissal on that ground alone. Rather, the only affirmative governmental act that Plaintiff identifies in its Complaint that could possibly support a takings claim relates to the alterations made to the CCC Ponds in 1995, which allegedly caused excess water to flow across Plaintiff's property. See, e.g., Compl. ¶¶ 1-4, 26, 31-32. Significantly, Plaintiff does not complain of any other source of excess water except the CCC Ponds. As shown above, however, Plaintiff's claim based upon the alleged taking of a flowage easement accrued in 1999, and expired at the end of 2005. Like Claim One, Claim Two therefore also is time barred. a. Claim Two Should Be Dismissed Because Government Inaction Cannot Form the Basis for a Taking

In Claim Two, Plaintiff alleges that the government failed to maintain the subsurface drain installed on government property in 1999. Compl. ¶¶ 99-103. The government's alleged

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failure to act, however, cannot support a takings claim. If anything, such allegations assert a tort over which this Court does not have jurisdiction. Claim Two, therefore, should be dismissed. The Fifth Amendment to the U.S. Constitution specifically calls for a defined government "action" as the basis for any takings claims, and a failure to act is, by definition, not such an action. This court has discussed a similar claim of an alleged taking by inaction, saying: Plaintiff cites no precedent, however, for the proposition that the inaction of a regulatory body in carrying out its statutory duty... has ever been held to be a taking. . . .The one common denominator in cases finding a taking is that there was a public purpose animating some affirmative action or statement, whether that purpose finds expression, for example, in a regulation for health and safety, a physical entry, a confiscation, or a land use restriction. This requirement is no more than a reflection of the fifth amendment itself, which is predicated on a taking "for public use." Last Chance Mining Co. v. United States, 12 Cl. Ct. 551, 556-57 (1987) (italics as in original; bold added). Previous decisions of this Court have also made clear that "the Government must take some affirmative action for a takings claim to be successful." B&G Enterprises, Ltd. v. United States, 43 Fed. Cl. 523, 526-27 (1999); see also Alost v. United States,73 Fed. Cl. 480, 495 (2006) (noting that a "plaintiff seeking to establish a government taking of an easement by flooding . . . must also demonstrate . . . that there was a `governmental act . . .'")(quoting Barnes v. United States, 538 F.2d 865, 871 (Ct. Cl. 1976)) (emphasis added); Pendleton v. United States, 47 Fed. Cl. 480, 485 (2000) (rejecting a takings claim in the context of a statefederal program alleged to have effected a taking because the plaintiffs failed to identify an "affirmative act" by the federal government "sufficient to support a takings claim under the Fifth Amendment"). Accordingly, because Claim Two alleges that Defendant failed to maintain the subsurface - 17 -

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drain, it does not sufficiently allege a takings claim over which this Court has jurisdiction pursuant to 28 U.S.C. § 1491(a). Claims based upon a failure to act fall squarely within the law of torts, and the Federal Tort Claims Act ("FTCA"), which specifically waives sovereign immunity for "act[s] or omission[s]" by government employees. See 28 U.S.C. 1346(b)(1). b. The Single Government Act Resulting in the Alleged Flowage Easement in Claim Two Relates Back to the CCC Ponds and Therefore Is Barred by the Statute of Limitations

Both Claim One and Claim Two arise from a single seminal event­the alteration of the CCC Ponds­that constitutes one cause of action for statute of limitations purposes. See Boling v. United States, 220 F.3d 1365, 1373 (Fed. Cir. 2000) (observing that the continuing claims doctrine, whereby each breach of a continuing duty gives rise to a separate cause of action, "does not apply in cases where a single government action causes a series of deleterious effects, even though those effects may extend long after the initial governmental breach"); see also Dow, 78 S.Ct. at 1045 ("it would certainly be bizarre to hold that there were two different `takings' of the same property, with some incidents of the taking determined as of one date and some as of the other"); Central Pines Land Co. v. United States, 61 Fed. Cl. 527, 537 (2004) (continuing claims doctrine does not apply where plaintiff's claim arises from a seminal event that would constitute one cause of action for the purposes of the statute of limitations) (citing Hatter v. United States, 203 F.3d 795, 800 (Fed. Cir. 2000)). Other than the alterations made to the CCC Ponds in 1995, Plaintiff does not identify in its Complaint any other affirmative governmental act that could support a takings claim, as discussed above. The only source of excess water that Plaintiff complains of is the CCC Ponds. See, e.g., Compl. ¶¶ 1-4, 26, 31-32. For statute of limitations purposes, therefore, the sole cause of action asserted in Claim - 18 -

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Two arises from the alteration of the CCC Ponds in 1995, resulting in the alleged taking of a flowage easement. That cause of action for a taking, however, was previously held to accrue in 1999. Forsgren, 64 Fed. Cl. at 459; Forsgren, 73 Fed. Cl. at 143-44. Accordingly, Claim Two is barred by the statute of limitations, 28 U.S.C. § 2501. IV. CONCLUSION For the reasons set forth above, Defendant respectfully requests that this Court dismiss Plaintiff's Complaint for lack of jurisdiction pursuant to 28 U.S.C. § 2501. As an alternative ground, Claim Two also should be dismissed because it fails to sufficiently allege a taking over which this Court has jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a). Respectfully submitted, Dated: March 12, 2007 MATTHEW J. McKEOWN Acting Assistant Attorney General Environment & Natural Resources Division /s/ Bruce K. Trauben BRUCE K. TRAUBEN Environment & Natural Resources Division Natural Resources Section United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel.: (202) 305-0238; Fax: (202) 305-0267 OF COUNSEL: Steven M. Hoffman Attorney Office of the Solicitor Rocky Mountain Regional Office United States Dept. of Interior 755 Parfet Street, Room 151 Lakewood, CO 80215 (303) 231-5363 fax Diane M. Connolly Deputy Regional Attorney Office of the General Counsel United States Dept. of Agriculture Mountain Region P.O. Box 25005 Lakewood, CO 80225 (303) 275-5557 fax

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