Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:95-cv-00650-LSM

Document 120

Filed 02/06/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ALFRED ALOISI, et al.

) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

No. 95-650L Judge Lawrence S. Margolis

DEFENDANT'S MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT Pursuant to Rule 12(h)(3) or, alternatively, Rule 56(b) of the Rules of the Court of Federal Claims (RCFC), Defendant, the United States, moves for dismissal or, alternatively, for summary judgment on the takings claim raised in Plaintiffs' Complaint, filed September 27, 1995 (Dkt. No. 1). According to Plaintiffs, the United States temporarily took their unpatented mining claims, as well as two patented parcels known as the Mountain Laurel Mine and the Rollin Mill Site (also known as the Rollin Townsite), by failing to timely inform Plaintiffs of a Biological Opinion, which the Fish and Wildlife Service ("FWS") issued on July 23, 1990 (the "Biological Opinion"). See Compl., ¶¶ 65, 66. Pursuant to § 7 of the Endangered Species Act ("ESA") (16 U.S.C. § 1536), the Forest Service initiated consultation proceedings with FWS regarding whether the continued existence of the northern spotted owl would be jeopardized by various proposed projects in the Klamath National Forest ("KNF"), including certain activities planned by plaintiff Liberty Mining, Inc. ("Liberty Mining," or "Liberty"). See Compl., ¶ 30. The Biological Opinion concluded that the proposed projects would not jeopardize the continued existence of the northern spotted owl, provided certain reasonable and prudent measures, among

Case 1:95-cv-00650-LSM

Document 120

Filed 02/06/2008

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other mandatory terms and conditions, were implemented. Plaintiffs allege that the United States failed to inform them of the Biological Opinion until March 1992, preventing them from mining and producing "free-milled gold doré for sale . . . in or before January 1991." Compl., ¶ 44; see also Compl., ¶ 45. Plaintiffs also complain that after the United States informed them of the Biological Opinion, the Forest Service wrongfully initiated a consultation proceeding with FWS (even though such process is required by ESA §7). See Compl., ¶¶ 48, 49. Plaintiffs allege that this second consultation with FWS violated federal regulations and perpetuated the temporary taking until February 1994, when the consultation ended. See Compl., ¶¶ 69-72. Plaintiffs' takings claim should be dismissed for several reasons. First, the Court lacks jurisdiction to hear claims that are not ripe. It is well-settled that a takings claim is ripe only when the claimant has sought agency approval of a proposed course of action, the agency is given a meaningful opportunity to review the proposal, and the agency prevents the claimant from undertaking the proposed action. Plaintiffs, however, never submitted a complete plan of proposed operations for the Forest Service's review ­ despite repeated attempts by the Forest Service to obtain such a plan from Plaintiffs. Plaintiffs' claim alleging an interference with production activities, therefore, is not ripe. Moreover, Plaintiffs cannot show the requisite extraordinary delay to establish a temporary regulatory taking. Second, Plaintiffs' takings claim is ground on allegations of omissions and unlawful actions by the United States, which are torts over which this Court lacks jurisdiction. Moreover, Plaintiffs' failure to identify any affirmative governmental act giving rise to a taking, by itself, is grounds to grant Defendant summary judgment.

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Case 1:95-cv-00650-LSM

Document 120

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Third, Plaintiffs did not acquire an interest in the Mountain Laurel mine (Mineral Lot 45A) and the Rollin Mill Site (Mineral Lot 45-B) until May 1991, well after the alleged date of taking of July 23, 1990. Consequently, these private lots should be dismissed from this action. Alternatively, summary judgment should be granted, because Plaintiffs cannot show the requisite Penn Central factors to establish a regulatory taking. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). Specifically, Plaintiffs cannot show that they suffered any economic harm from the alleged governmental action or inaction, because the only economic harm they allege is speculative lost profits (especially since the gold remains in the ground). Plaintiffs also were not deprived "of all or substantially all economically viable use of their property," Walcek v. United States, 44 Fed. Cl. 462, 467 (1999), because Plaintiffs leased the mining claims to third parties during the alleged takings period. In addition, Plaintiffs cannot show that any governmental action interfered with any reasonable investment-backed expectations, because an extensive regulatory regime protecting archaeological resources and the northern spotted owl was in place long before Plaintiffs acquired any interest in the subject property. An analysis of the character of the governmental action (or inaction) also shows that no taking occurred. Accordingly, application of the Penn Central factors shows that no taking has occurred, entitling Defendant to summary judgment. For the reasons stated herein and in its accompanying Memorandum, Defendant respectfully requests that the Court grant its motion to dismiss or, alternatively, grant Defendant summary judgment. // // //

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Case 1:95-cv-00650-LSM

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Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

/s/ Bruce K. Trauben BRUCE K. TRAUBEN Trial Attorney Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice 601 D Street, NW Washington, D.C. 20004 (202) 305-0238 (phone) (202) 305-0506 (fax) WILLIAM J. SHAPIRO Trial Attorney U.S. Department of Justice Environment & Natural Resources Div. 501 I Street, Suite 9-700 Sacramento, CA 95814-2322

OF COUNSEL: ROSE MIKSOVSKY U.S. Department of Agriculture Office of General Counsel 33 New Montgomery St., 17th Fl. San Francisco, CA 94105-3170 Dated: February 6, 2008

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