Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:07-cv-00014-MMS

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ELECTRONICALLY FILED ON FEBRUARY 21, 2008
Karen Budd-Falen BUDD-FALEN LAW OFFICES, LLC 300 East 18th Street Post Office Box 346 Cheyenne, Wyoming 82003­0346 (307) 632-5105 Telephone (307) 637-3891 Facsimile [email protected] Attorney for Plaintiffs

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 PLAINTIFFS' RESPONSIVE SUPPLEMENTAL BRIEF
Honorable Margaret M. Sweeney

COME NOW, the Plaintiffs, by and through their undersigned attorney, Karen BuddFalen of the Budd-Falen Law Offices, LLC, and hereby respectfully submits its responsive supplemental brief pertaining to the recent decision of the United States Supreme Court in John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750 (January 8, 2008), affirming the judgment of the United States Court of Appeals for the Federal Circuit, 457 F.3d 1345 (Fed. Cir. 2006).

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I.

INTRODUCTION This case involves two distinct causes of action: the first relating to the recharging

of certain ponds which caused flooding over Plaintiffs' property and the second relating to the failure of the United States to maintain a drain on lands belonging to the United States Forest Service. When the drain was originally constructed in 1999, it had the desired and intended effect of intercepting the water flowing from the ponds and diverting it away from the Plaintiffs' property. At that point, the Plaintiffs' property dried up thus giving rise to the First Cause of Action in the Complaint. The First Cause of Action requests relief for a temporary taking of property occurring between the time the ponds caused the flooding of the property and the time that the functioning drain diverted the water away from Plaintiffs' property and allowed the property to dry and become usable again. Unfortunately, since the construction of the drain on the Forest Service land, by federal agency personnel, the drain has not been maintained. The drain is now filled with silt, rocks and other debris, causing it to stop functioning. The failure to maintain the drain gives rise to Plaintiffs' Second Cause of Action, the taking of a flowage easement across Plaintiffs' property. Plaintiffs will address these causes of action separately in light of the Court's Order and the U.S. Supreme Court case. A. Claim One

Unfortunately, after further review of the recent decision of the United States Supreme Court in John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750 (January 8, 2008), affirming the judgment of the United States Court of Appeals for the Federal Circuit, 457 F.3d 1345 (Fed. Cir. 2006), and the Federal Defendant's Supplemental Memorandum in Support of its Motion to Dismiss, filed on February 5, 2008, the Plaintiffs concede that 2

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the United States Court of Federal Claims lacks jurisdiction to consider "Claim One" of the Plaintiffs' Complaint. Plaintiffs agree that the statute of limitations for Claim One cannot be equitably tolled and the Court lacks jurisdiction over that Claim. B. Claim Two

However, the Plaintiffs' Second Claim for Relief, as set forth in the Plaintiffs' Complaint, filed on January 10, 2007, must not be dismissed because the Plaintiffs sufficiently allege a taking in violation of the Fifth Amendment which occurred well within the applicable statute of limitations. King v. Otasco, Inc., 861 F.2d 438, 441 (5th Cir. 1988) ("When a suit alleges several distinct causes of action, even if they arise from a single event, the applicable limitations period must be determined by analyzing each cause of action separately.") ; Fielder v. Varner, 79 F.3d 113, 119 (3rd Cir. 2004) (citations omitted). With regard to Claim Two, while accepting the Complaint's allegations as true and drawing all inferences in favor of the Plaintiffs, the Plaintiffs have sufficiently alleged that the Government's refusal to repair the subsurface drain imposed upon the Plaintiffs a flowage easement without just compensation. The Defendant's failure to maintain the drain, originally constructed and installed in 1999, is a separate and distinct cause of action from Defendant's refilling of the original ponds in 1995. In fact, the statute of limitations for the failure to maintain did not accrue until the Plaintiffs' property separately flooded again in 2005. See Plaintiffs' Response in Opposition to the Federal Defendant's Motion to Dismiss, filed on April 19, 2007 (Docket No. 11), and the Plaintiffs' Responsive Supplemental Brief, filed on September 5, 2007, pertaining to the recent decision of the United States Court of Federal Claims in Nicholson v. United States, No. 05-1259L, 2007 WL 2206857 (Fed. Cl. July 27, 2007). (Docket No. 18). 3

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II.

CONCLUSION Thus, for the reasons set forth, Plaintiffs hereby withdraw Claim One from the

consideration of this Court but urge the Court to reject Defendants' Motion to Dismiss regarding Claim Two of Plaintiffs' Complaint. Because Claim Two of Plaintiffs' Complaint was filed within six years of the date that claim first accrued, 2005,1 it is not time barred. RESPECTFULLY SUBMITTED this 21st day of February, 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 Plaintiffs

Even if this Court were to find that the statute of limitations began to run in 1999 when the drain was first constructed and installed, Claim Two would still be within the statute of limitations. 4

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CERTIFICATE OF SERVICE I, the undersigned, certify that I caused a true and correct copy of the foregoing to be electronically transmitted on this 21st day of February, 2008 to the following: Bruce K. Trauben Trial Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 [email protected] /s/ Karen Budd-Falen__

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