Free Joint Preliminary Status Report - District Court of Federal Claims - federal

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Electronically Filed on August 6, 2008 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, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-14L
Honorable Margaret M. Sweeney

JOINT PRELIMINARY STATUS REPORT The Parties hereby respectfully submit this Joint Preliminary Status Report in accordance with Appendix A of the Rules of the United States Court of Federal Claims. I.
JURISDICTION .

The United States agrees that the Tucker Act, 28 U.S.C. § 1491, confers jurisdiction on this Court to adjudicate Fifth Amendment takings claims. In this case, however, the United States reserves its right to re-assert that the Court does not have jurisdiction over this action based upon the statute of limitations or Plaintiffs' failure to present facts sufficient to support a Fifth Amendment taking. The Plaintiffs' motion for voluntary dismissal of its First Cause of Action was granted by the Court on May 12, 2008. Jurisdiction is invoked pursuant to 28 U.S.C. § 1491, which specifically provides that "the United States Court of Federal Claims shall have jurisdiction to render

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judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department." This action is founded upon the Fifth Amendment of the United States Constitution. II. CONSOLIDATION . This case should not be consolidated with any other case. III. BIFURCATION . The Plaintiffs contend that the trial of liability and damages should not be bifurcated. It is the Plaintiffs' contention that the liability of the United States may be established by motion for summary judgment under Rule 56 of the Rules of the United States Court of Federal Claims. If summary judgment is not rendered with regard to the liability of the United States, and a trial is deemed necessary, then such trial shall be conducted accordingly, including the amount of damages owed by the United States, if any. The Defendant, on the other hand, contends that it would be more cost-efficient to bifurcate trial, with the first trial limited to issues relating to liability, if necessary, after motions practice. By first holding a separate trial on liability, the Parties may well avoid retaining experts on the measure of just compensation, if the government is found to not be liable for a taking. Moreover, bifurcating trial most likely would conserve judicial resources because fewer days would be required to try liability alone. Additionally, if the government is found liable for a taking, the matter may well be resolved through a negotiated settlement on compensation, rather than require a second trial.

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IV.

DEFERRAL. The Parties are in agreement that further proceedings in this case should not be

deferred pending consideration of another case before this Court or any other tribunal. Although the Plaintiffs have filed administrative claims under the Federal Tort Claims Act with both the Department of Agriculture and the Department of the Interior, the Parties do not believe at this time that these administrative proceedings will affect this action. The Parties are unaware of any action pending before this Court or any other court which may affect either the factual or legal issues in this matter. V. REMAND /SUSPENSION . A remand or suspension is not sought by the Parties. VI. ADDITIONAL PARTIES . The Parties are in agreement that no additional parties shall be joined in this matter. VII. MOTIONS. Neither Party currently intends to file any motion to dismiss pursuant to Rules 12(b) or 12(c) of the Rules of the United States Court of Federal Claims, although Defendant reserves its right to file such a motion if it subsequently deems it appropriate to do so. The Plaintiffs intend to pursue a motion for summary judgment concerning the liability of the United States in this matter pursuant to Rule 56 of the Rules of the United States Court of Federal Claims. The Defendant contemplates filing a dispositive motion, but has not yet determined whether its motion will be brought pursuant to Rule 12 or Rule 56. The Parties suggest that dispositive motions be filed no later than fortyfive (45) days after the final discovery deadline as proposed below. -3-

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VIII. RELEVANT FACTUAL AND LEGAL ISSUES . Factual issues include, but are not limited to: (1) Whether the Plaintiffs' property flooded during 2005, and if so, how frequently and for what duration; (2) the identity of the source or sources of water allegedly flowing onto the Plaintiffs' property, including whether the subsurface drain itself is somehow a source of water allegedly flowing onto the Plaintiffs' property; and (3) whether the subsurface drain causes water to flow onto the Plaintiffs' property, regardless of whether it is a source of water. Legal issues include, but are not limited to: (1) Whether the Plaintiffs' claim is barred by the applicable statute of limitations; (2) whether the Plaintiffs' takings claim arising from the subsurface drain is ripe as only a few incidents of flooding are insufficient to establish a taking of a flowage easement; (3) whether any action of the government has caused or resulted in water flowing onto the Plaintiffs' property; (4) whether the federal government took a flowage easement across the Plaintiffs' property by failing to maintain the subsurface drain as alleged; and (5) if the government took a flowage easement arising from the subsurface drain, whether the proper measure of compensation for a flowage easement includes compensation for any consequential damage to the property, including any structure. IX. SETTLEMENT . While the Parties are in agreement that the prospects for settlement of this matter are low, the Parties will continue to explore and discuss the potential for settlement as warranted by the circumstances. Alternative dispute resolution is not currently contemplated by either Party.

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X.

TRIAL . As set forth above, the Plaintiffs contend that the liability of the United States

may be established by motion for summary judgment. If summary judgment is not rendered with regard to the liability of the United States, and a trial is deemed necessary, then such trial shall be conducted accordingly, including the amount of any damages owed by the United States. The Defendant contends that issues of fact will prevent the Court from finding the government liable for a taking upon a dispositive motion. Consequently, it is the government's position that the Court may dismiss this action on statute of limitations or on other grounds raised by the government without a trial, but that a trial will be necessary to hold the government liable for a taking. Neither Party requests expedited trial scheduling. XI. ELECTRONIC CASE MANAGEMENT NEEDS . There are no special issues regarding electronic case management needs. XII. OTHER INFORMATION . There is no other information of which the Court should be aware at this time. XIII. PROPOSED DISCOVERY PLAN . The Parties suggest the following proposed discovery plan, including proposed deadlines: (i) the initial disclosures required by Rule 26(a)(1) shall be exchanged no later than September 26, 2008; (ii) the Plaintiffs shall disclose the identity of any expert whom the Plaintiffs may use at trial, as required by Rule 26(a)(2), no later than October 31, 2008, and the Defendant shall disclose the identity of any expert whom the Defendant may use at trial, as required by Rule 26(a)(2), no later than December -5-

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5, 2008; and (iii) all discovery, including fact and expert discovery, shall be completed no later than March 27, 2009. In accordance with the foregoing, the Parties suggest that cross dispositive motions be filed no later than forty-five (45) days after the final discovery deadline, or May 15, 2009, with the subsequent briefing schedule set by Rule 7.2(c). RESPECTFULLY SUBMITTED this 6th day of August, 2008.

/s/ Karen Budd-Falen Karen Budd­Falen Budd­Falen Law Offices, LLC 300 East 18th Street Post Office Box 346 Cheyenne, Wyoming 82003­0346 (307) 632­5105 Telephone (307) 637­3891 Facsimile [email protected] Attorney for Plaintiff

/s/ Bruce K. Trauben Bruce K. Trauben
Environment & Natural Resources Division

Natural Resources Section United States Department of Justice Post Office Box 663 Washington, D.C. 20044-0663 (202) 305-0238 Telephone (202) 305-0506 Facsimile [email protected] Attorney for the United States of America

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