frazer/exton Development, L.P. v. United States

In the United States Court of Federal Claims

No. 18-1081L

(Filed: February 8, 2019)

*************************************

WHITELAND HOLDINGS, L.P. and *

FRAZER/EXTON DEVELOPMENT, *

L.P., *

RCFC 12(b)(1); Takings Clause of the

*

Fifth Amendment; Environmental

Plaintiffs, *

Contamination; 28 U.S.C. § 2501; Statute

*

of Limitations; Claim Accrual;

v. *

Stabilization Doctrine; Justifiable

*

Uncertainty

THE UNITED STATES, *

*

Defendant. *

*************************************

Matthew D. McDonald, Tallahassee, FL, for plaintiffs.

Brent H. Allen, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Chief Judge

In this case, plaintiffs Whiteland Holdings, L.P. (“Whiteland”) and Frazer/Exton

Development, L.P. (“Frazer/Exton”) contend that defendant’s operations and methods of

disposal on property now owned by Whiteland contaminated the property’s soil and

groundwater, effecting a taking by inverse condemnation without just compensation in violation

of the Takings Clause of the Fifth Amendment to the United States Constitution. Defendant

moves to dismiss the amended complaint for lack of subject-matter jurisdiction pursuant to Rule

12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and, alternatively,

for failure to state a claim upon which this court can grant relief pursuant to RCFC 12(b)(6). As

explained below, Whiteland and Frazer/Exton filed suit in this court more than six years after

their Takings Clause claim accrued. Therefore, the court grants defendant’s motion and

dismisses the amended complaint without prejudice for lack of subject-matter jurisdiction.

I. BACKGROUND

The subject property is located at 15 South Bacton Hill Road in Frazer, Chester County,

Pennsylvania, and is situated primarily in East Whiteland Township.1 Am. Compl. ¶ 2; Def.’s

Mot. Dismiss & Mem. Supp. (“Mot.”) Ex. 1 at 3-4.2 Foote Mineral Company (“Foote Mineral”)

originally acquired the subject property in 1941.3 Mot. Ex. 1 at 4. The federal government

purchased the subject property in 1942 through the Defense Corporation of America, and

“engaged [Foote Mineral] to conduct lithium chemical processing operations for the

government.” Id.; accord Mot. Ex. 6 at 5. The federal government also utilized the subject

property “for the production of various lithium and munition products as well as the stockpiling

and storage of exotic ores.” Am. Compl. ¶ 6.

Foote Mineral reacquired the subject property in July 1946, after the conclusion of World

War II. Id. ¶ 8; Mot. Ex. 1 at 4. Until sometime during the 1950s, defendant continued to

operate the site, engaging Foote Mineral to produce and manufacture “lithium halides and

lithium metal products, both in liquid and solid form,” to “ground a variety of minerals and

alloys,” to produce “inorganic fluxes for the steel industry,” and to store “various exotic ores for

ammunition production and other potential uses as part of the wartime effort.” Am. Compl.

¶¶ 9-10. Site operations “created large quantities of hazardous substances” that “were disposed

of in limestone quarries” on the subject property. United States v. Frazer Exton Dev. LP, No.

07-2666, 2008 WL 2876570, at *1 (E.D. Pa. July 24, 2008). “These substances contaminated

soil on the Site and the ground water beneath the Site, causing a plume of contamination that

extends approximately two miles east” of the subject property. Id. Foote Mineral ceased its

disposal practices in or around 1975. Mot. Ex. 2 at 5.

After Foote Mineral “engaged in cleanup and monitoring efforts” throughout the 1970s

and 1980s, the United States Environmental Protection Agency (“EPA”) “became involved in

remediation efforts in 1988.” Frazer Exton, 2008 WL 2876570, at *1. A November 8, 1988

EPA site inspection of the subject property, and an environmental assessment of the subject

property by Foote Mineral earlier that year, revealed high levels of lithium, chromium, and lead

in the sediments and surface water of the south quarry. Mot. Ex. 1 at 5. On June 29, 1990, the

EPA and Foote Mineral entered into a consent order that required Foote Mineral to “conduct a

1

The facts in this section derive from the complaint, the parties’ submissions (including

attached exhibits), and matters of which the court may take judicial notice pursuant to Rule 201

of the Federal Rules of Evidence. See Rocky Mountain Helium, LLC v. United States, 841 F.3d

1320, 1325-26 (Fed. Cir. 2016). Unless otherwise stated, the facts are undisputed for purposes of

resolving defendant’s motion to dismiss.

2

The exhibits attached to defendant’s motion to dismiss contain excerpts of documents.

The court therefore references the page numbers affixed by the court’s electronic case filing

system.

3

All references in this opinion to Foote Mineral also refer to any then-existing successor

in interest of Foote Mineral.

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groundwater survey, institute a five-year monitoring program of private drinking water supplies,

and provide an alternative drinking water source to affected residents.” Frazer Exton, 2008 WL

2876570, at *1. Foote Mineral discontinued site operations in 1991. Id.; Mot. Ex. 1 at 3. On

October 14, 1992, the EPA added the subject property to the General Superfund Section of the

National Priorities List.4 National Priorities List for Uncontrolled Hazardous Waste Sites, 57

Fed. Reg. at 47,183-84. The subject property became known as the “Foote Mineral Superfund

Site.” See, e.g., Mot. Ex. 6 at 2. In September 1996, the EPA, pursuant to a second consent

order, required Foote Mineral to “conduct a remedial investigation and feasibility study.” Frazer

Exton, 2008 WL 2876570, at *1.

On October 1, 1998, Frazer/Exton entered into an agreement to acquire the Foote Mineral

Superfund Site. Am. Compl. ¶ 14; Mot. Ex. 4 at 2. In conjunction with its acquisition of the

site, Frazer/Exton was to receive $3 million from Foote Mineral, Mot. Ex. 4 at 5, and assume

all liabilities, obligations, and/or responsibilities under any

applicable Environmental Law for Environmental Conditions,

other than Excluded Liabilities,5 including without limitation:

(i) all liabilities, obligations and responsibilities

(A) to implement any [Record of Decision] or other

decision document issued by any governmental

authority for the Property;

(B) to perform the Response Actions[;] and

(C) otherwise in connection with the Consent Order;

and

(ii) all claims by the EPA or the Commonwealth of

Pennsylvania for the recovery or reimbursement of

response costs incurred on or after the Closing Date with

respect to the Property and Environmental Conditions.

Id. at 2 (footnote added). As part of the agreement, Frazer/Exton acknowledged that it would not

4

“The identification of a site for the [National Priorities List] is intended primarily to

guide EPA in determining which sites warrant further investigation and to assess the nature and

extent of the public health and environmental risks associated with the site . . . . The [National

Priorities List] also serves to notify the public of sites that EPA believes warrant further

investigation.” National Priorities List for Uncontrolled Hazardous Waste Sites, 57 Fed. Reg.

47,180, 47,182-83 (Oct. 14, 1992).

5

The “excluded liabilities” are not at issue here. See Mot. Ex. 4 at 3 (defining the

“excluded liabilities”).

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be entitled to receive any compensation from Foote Mineral “for changes in the anticipated scope

of the Response Actions, including without limitation, changes that are the result of unknown or

undiscovered Environmental Conditions or modifications in Environmental Laws.” Id. at 5.

Frazer/Exton consummated its acquisition of the subject property on November 20, 1998, with

“full knowledge of the existing contamination of the Site.” Frazer Exton, 2008 WL 2876570, at

*1.

In June 2001, Frazer/Exton completed a Remedial Investigation Report and a Feasibility

Study Report. Mot. Ex. 3 at 3. On August 11, 2003, the EPA held a public hearing regarding its

proposed plan for the Foote Mineral Superfund Site. Mot. Ex. 6 at 2. At that meeting, the EPA’s

regional remedial project manager described the history of the site. Id. at 5-6. He indicated that

the site “was added to the Superfund list primarily because of lithium that was discovered in

groundwater leaving the site” and that “numerous investigations have been run to determine the

type and extent of contamination on and around the site.” Id. at 6. He explained that in

November 2001, when the EPA was “very close” to holding a public hearing regarding the site,

bromate was discovered in the groundwater. Id. at 7. Frazer/Exton’s president was at that public

hearing, acknowledged that Frazer/Exton owned the site, and stated that (1) Frazer/Exton was

“wholly supportive of the [EPA’s] proposed remedy and the proposed plan” and (2) the company

“look[ed] forward to an expeditious negotiation of the implementation of the remedy with the

EPA.” Id. at 8.

The EPA issued a Record of Decision—selecting a permanent remedy for the Foote

Mineral Superfund Site—on March 31, 2006, and notified Foote Mineral and Frazer/Exton “of

their potential liability to remedy the site” pursuant to the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (“CERCLA”). Frazer Exton, 2008 WL

2876570, at *1. Frazer/Exton “volunteered to perform the work required by the [Record of

Decision]” on July 21, 2006. Id. Frazer/Exton and the EPA then entered into a proposed consent

decree “for the purpose of commencing the design phase of the remedial action contemplated by

the [Record of Decision]” that provided for Frazer/Exton to “pay the interim and future costs

contemplated by the consent decree” and “pay for and perform the remedial action that was

selected by the EPA in the [Record of Decision].” Id. at *1-2. Specifically, the Record of

Decision required:

1) removal of the waste and contaminated soil from the site;

2) steps such as placing clean fill on the Site and capping the

quarries to prevent the contamination of groundwater;

3) long-term monitoring of the groundwater;

4) institutional controls to prevent residential use of impacted

groundwater and the capped quarry areas; and

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5) review of the progress of the remedy at least once every five

years to ensure that the remedy continues to be protective of

public health and the environment.

Id. at *2.

While conducting the remediation work, Frazer/Exton “learned that the volume of

contaminated soil [was] larger than was estimated in the [Record of Decision].” Id. at *2; accord

Mot. Ex. 2 at 6. On April 7, 2008—after a thirty-day public comment period and an EPA public

availability session regarding the additional contamination—the EPA signed an Explanation of

Significant Differences. Frazer Exton, 2008 WL 2876570, at *2.

The [Explanation of Significant Differences] amends the [Record

of Decision] by expanding the area to be capped, revising clean-up

standards for certain contaminants, and allowing the use of

permeability barriers in areas where the depth of the contaminated

soil is such that the volume is too large to fit into the expanded

capped areas.

Id. (internal quotation marks omitted). Following a public comment period regarding the

proposed consent decree, the United States District Court for the Eastern District of Pennsylvania

held a public hearing. Id. at *3. On July 24, 2008, the court approved and entered the consent

decree, finding that it was “procedurally and substantively fair” and “reasonable and consistent

with CERCLA’s goal of ensur[ing] the cleanup of the nation’s hazardous waste sites.” Id.

(internal quotation marks omitted).

As part of the consent decree, Frazer/Exton entered into the following covenants, among

others:

89. Covenant Not to Sue. Subject to the reservations in

Paragraph 90, [Frazer/Exton] hereby covenants not to sue and

agree[s] not to assert any claims or causes of action against

the United States with respect to the Site, Past and Future

Response Costs as defined herein, or this Consent Decree,

including, but not limited to:

a. any direct or indirect claim for reimbursement from

the Hazardous Substance Superfund . . . ;

b. any claims against the United States, including any

department, agency or instrumentality of the United

States under CERCLA sections 107 or 113 related to

the Site; or

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c. any claims arising out of response actions at or in

connection with the Site, including any claim under

the United States Constitution, the [Pennsylvania]

Constitution, the Tucker Act . . . , the Equal Access to

Justice Act . . . , or at common law.

90. [Frazer/Exton] reserves, and this Consent Decree is without

prejudice to, claims against the United States subject to the

provisions of [28 U.S.C. §§ 2671-2680] for money damages

for injury or loss of property or personal injury or death

caused by the negligent or wrongful act or omission of any

employee of the United States while acting within the scope

of his or her office or employment under circumstances

where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where

the act or omission occurred. . . .

Mot. Ex. 3 at 6-7.

On October 28, 2010, the EPA issued a Superfund Preliminary Close Out Report

pertaining to the Foote Mineral Superfund Site. Pls.’ Mem. Opp’n Def.’s Mot. Dismiss

(“Opp’n”) Ex. 2 at 3. According to Frazer/Exton, it “completed the investigation, removal,

and/or remediation of the Site in 2011.” Mot. Ex. 2 at 6. Thereafter, Frazer/Exton “continue[d]

to incur additional costs in monitoring and reporting requirements.” Id. On August 30, 2013,

Frazer/Exton filed suit against Foote Mineral and its successors, seeking to recover the costs it

had incurred “in implementing the Site investigations and removal and/or remediation actions”

and “costs related to continued monitoring and reporting.” Id. The case eventually settled. Stip.

Dismiss With Prejudice, Frazer/Exton Dev., L.P. v. Rockwood Holdings, Inc., No.

2:13-cv-05110-CDJ (E.D. Pa. Nov. 8, 2016). Whiteland acquired the subject property via

sheriff’s sale on November 17, 2016. Am. Compl. ¶¶ 15-16; Opp’n Ex. 1 ¶ 7. On September 11,

2017, pursuant to Pennsylvania law, Whiteland executed an Environmental Covenant in favor of

Frazer/Exton. Am. Compl. ¶ 16; see also Opp’n Ex. 2 (providing a complete copy of the

Environmental Covenant). The EPA approved the Environmental Covenant nine days later.

Am. Compl. ¶ 16; Opp’n Ex. 2 at 8. As relevant here, the Environmental Covenant contains

sections describing the history of the contamination and cleanup efforts pertaining to the Foote

Mineral Superfund Site, see Opp’n Ex. 2 at 3-4, and “activity and use limitations[] which the

then current owner of the Property, and its tenants, agents, employees and other persons under its

control, shall abide by,” id. at 4. Frazer/Exton then procured an appraisal to “determine[] the full

extent of the loss of value due to the Environmental Covenant executed as a result of the

presence of contamination in the soils and groundwater at the Site.” Opp’n Ex. 1 ¶ 5.

Frazer/Exton filed suit in this court on July 24, 2018, alleging generally that

(1) defendant’s actions “contaminated the soils on-Site as well as groundwater within and around

the Site,” Compl. ¶ 12, (2) such contamination “has invaded and caused permanent and

irreparable damage” to the Foote Mineral Superfund Site, id. ¶ 14, and (3) “the full consequences

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of the Defendant’s actions have not been fully manifested,” id. ¶ 15. Frazer/Exton amended its

complaint on August 24, 2018, repeating the same allegations but adding Whiteland as an

additional plaintiff.6 Compare Am. Compl. ¶¶ 13-18, with Compl. ¶¶ 12-15.

Defendant subsequently moved to dismiss the amended complaint. Briefing on

defendant’s motion is now complete. The parties did not request oral argument, and the court

deems it unnecessary. Defendant’s motion is therefore ripe for adjudication.

II. DISCUSSION

Frazer/Exton and Whiteland allege that “Defendant’s actions amount to an inverse

condemnation” in violation of the Takings Clause. Am. Compl. ¶ 20. Specifically, they assert

that “[t]he contamination on Plaintiffs’ property was the direct, natural, or probable result of

Defendant’s operation of the site,” id. ¶ 22 (emphasis added); “Defendant knew, or should have

known, and it was foreseeable, that Defendant’s operations and methods of disposal at the Site

would likely result in discharges of multiple hazardous substances to the soils and groundwater

at and around the Site,” id. ¶ 23 (emphasis added); and “Defendant’s disposal and discharge of

various contaminants at the Site has appropriated a benefit to Defendant at the expense of

Plaintiffs, which has prevented and will continue to prevent Plaintiffs from enjoying their

property for an extended period of time in that the contamination will remain on the Site for the

foreseeable future,” id. ¶ 24 (emphasis added). Defendant contends that the “Plaintiffs’ takings

claim accrued far more than six years before Frazer/Exton filed suit,” Mot. 10, that

“Frazer/Exton has waived” any Takings Clause claim against the federal government with

respect to the Foote Mineral Superfund Site, id. at 9, and that both Frazer/Exton and Whiteland

lack standing because “neither Frazer/Exton nor Whiteland held any sort of property interest in

the Foote Mineral Superfund Site at the time of the [alleged] taking,” id. at 12.

A. Standard of Review Under RCFC 12(b)(1)

The court first addresses the arguments that defendant raises pursuant to RCFC 12(b)(1).

In determining whether subject-matter jurisdiction exists, the court “must accept as true all

undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor

of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir.

2011). With respect to a motion to dismiss for lack of subject-matter jurisdiction pursuant to

RCFC 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, that

the court possesses subject-matter jurisdiction. Id. If jurisdictional facts are challenged, the

court is not limited to the pleadings in determining whether it possesses subject-matter

jurisdiction to entertain a plaintiff’s claims. Banks v. United States, 741 F.3d 1268, 1277 (Fed.

6

In its original complaint, Frazer/Exton alleged that it owned the Foote Mineral

Superfund Site. Compl. ¶ 13. In their amended complaint, Frazer/Exton and Whiteland allege

that Whiteland “is the current owner,” Am. Compl. ¶ 15, but that Frazer/Exton “maintains a

property interest,” id. ¶ 14, in the site. Frazer/Exton relies on the September 11, 2017

Environmental Covenant and Pennsylvania law to establish its current property interest in the

site. Opp’n Ex. 1 ¶ 8.

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Cir. 2014); Pucciariello v. United States, 116 Fed. Cl. 390, 400 (2014). If the court finds that it

lacks subject-matter jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that

claim.

B. Subject-Matter Jurisdiction

Whether the court possesses subject-matter jurisdiction to decide the merits of a case is a

“threshold matter.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998).

Subject-matter jurisdiction cannot be waived or forfeited because it “involves a court’s power to

hear a case.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (quoting United States v.

Cotton, 535 U.S. 625, 630 (2002)). “Without jurisdiction the court cannot proceed at all in any

cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte

McCardle, 74 U.S. (7 Wall) 506, 514 (1868). Therefore, it is “an inflexible matter that must be

considered before proceeding to evaluate the merits of a case.” Matthews v. United States, 72

Fed. Cl. 274, 278 (2006); accord Hymas v. United States, 810 F.3d 1312, 1316-17 (Fed. Cir.

2016) (“[A] federal court [must] satisfy itself of its jurisdiction over the subject matter before it

considers the merits of a case.” (alterations in original) (quoting Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 583 (1999))). Either party, or the court sua sponte, may challenge the court’s

subject-matter jurisdiction at any time. Arbaugh, 546 U.S. at 506; see also Jeun v. United States,

128 Fed. Cl. 203, 209-10 (2016) (collecting cases).

The ability of the United States Court of Federal Claims (“Court of Federal Claims”) to

entertain suits against the United States is limited. “The United States, as sovereign, is immune

from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941).

The waiver of immunity “may not be inferred, but must be unequivocally expressed.” United

States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). Further, “[w]hen waiver

legislation contains a statute of limitations, the limitations provision constitutes a condition on

the waiver of sovereign immunity.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,

461 U.S. 273, 287 (1983).

The Tucker Act, the principal statute governing the jurisdiction of this court, waives

sovereign immunity for claims against the United States, not sounding in tort, that are founded

upon the Constitution, a federal statute or regulation, or an express or implied contract with the

United States. 28 U.S.C. § 1491(a)(1) (2012); White Mountain, 537 U.S. at 472. However, the

Tucker Act is merely a jurisdictional statute and “does not create any substantive right

enforceable against the United States for money damages.” United States v. Testan, 424 U.S.

392, 398 (1976). The Tucker Act simply “confers jurisdiction . . . whenever the substantive right

exists.” Id. The substantive right must appear in another source of law, such as a “money-

mandating constitutional provision, statute or regulation that has been violated, or an express or

implied contract with the United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545,

1554 (Fed. Cir. 1994) (en banc).

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In addition, to fall within the court’s jurisdiction, any claim against the United States filed

in the Court of Federal Claims must be “filed within six years after such claim first accrues.” 28

U.S.C. § 2501. A cause of action accrues “when all the events which fix the government’s

alleged liability have occurred and the plaintiff was or should have been aware of their

existence.” San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1350 (Fed. Cir. 2011)

(quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)).

The limitations period set forth in 28 U.S.C. § 2501 is an “absolute” limit on the ability of the

Court of Federal Claims to exercise jurisdiction and reach the merits of a claim. John R. Sand &

Gravel Co. v. United States, 552 U.S. 130, 133-35 (2008). Although equitable tolling of the

six-year statute of limitations in the Court of Federal Claims is not available, claim accrual is

suspended “until the claimant knew or should have known that the claim existed.” Young v.

United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) (internal quotation marks omitted). To

successfully invoke the accrual suspension rule, a plaintiff must demonstrate that either (1) the

government “concealed its acts” or (2) the plaintiff’s injury was “inherently unknowable.” Id.

(internal quotation marks omitted). The “knew or should have known” test for claim accrual is

“used interchangeably” with the “concealed or inherently unknowable” test, although the latter is

“both more common and more precise.” Ingrum v. United States, 560 F.3d 1311, 1315 n.1 (Fed.

Cir. 2009).

C. Analysis

The only claim raised in the amended complaint is a Fifth Amendment taking arising

from defendant’s inverse condemnation of the subject property. The Fifth Amendment prohibits

the federal government from taking private property for public use without paying just

compensation. U.S. Const. amend. V. “It is undisputed that the Takings Clause of the Fifth

Amendment is a money-mandating source [of law] for purposes of Tucker Act jurisdiction” in

the Court of Federal Claims. Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir.

2008); accord Mildenberger v. United States, 643 F.3d 938, 944-45 (Fed. Cir. 2011) (“When the

Government takes property but fails to compensate the owner, the Tucker Act provides

jurisdiction to enforce the owner’s compensatory right.”). The parties do not dispute that

Frazer/Exton and Whiteland have alleged a Takings Clause claim. Rather, the central issue is

determining when Frazer/Exton and Whiteland’s Takings Clause claim accrued.

Pursuant to the facts alleged by Frazer/Exton and Whiteland, the purported taking due to

defendant’s actions occurred not at a discrete moment in time, but through the gradual

contamination of the Foote Mineral Superfund Site. Accrual of a takings claim effected by a

“gradual physical process” occurs “when the situation has ‘stabilized.’” Banks v. United States,

314 F.3d 1304, 1308 (Fed. Cir. 2003). The stabilization doctrine is a manifestation of the accrual

suspension rule. “[S]tabilization occurs when it becomes clear that the gradual process set into

motion by the government has effected a permanent taking, not when the process has ceased or

when the entire extent of the damage is determined.” Boling v. United States, 220 F.3d 1365,

1370-71 (Fed. Cir. 2000). “[J]ustifiable uncertainty about the permanency of the taking” thus

prevents accrual of a takings claim. Id. at 1372. In other words, the claim accrues when the

“permanent nature of the taking is evident.” Id. at 1371; see also Mildenberger, 643 F.3d at

944-46 (discussing the development and application of the stabilization doctrine).

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Defendant asserts that “[b]y the time [Frazer/Exton] acquired the Foote Mineral

Superfund Site in 1998, [it] was well aware of the history of government actions at the Site, and

the extent of contamination at the Site,” and notes that “in 2003, Frazer/Exton’s president even

participated in a public meeting where an EPA representative discussed the government’s actions

at the Site.” Mot. 10. Defendant further remarks that “Frazer/Exton cannot credibly claim that

any alleged contamination is ongoing” and observes that “Frazer/Exton itself has repeatedly

asserted that remediation of any contamination at the Site was complete by 2011.” Id. at 11. In

response, Frazer/Exton and Whiteland aver that “the earliest time by which accrual could be

measured, thus triggering the six-year statute of limitations period, would be the date the

invasion stabilized so that [Frazer/Exton and Whiteland] could fully take account of their

damages due to the consequences of Defendant’s actions” and that their damages “would have

been merely speculative and not quantifiable or present until the [September 11, 2017]

Environmental Covenant was executed.” Opp’n 3.

Frazer/Exton and Whiteland are correct that, although all operations at the Foote Mineral

Superfund Site concluded in 1991, they “may postpone filing suit until the nature and extent of

the taking is clear.” Id. at 11 (quoting Fallini v. United States, 381 F.3d 1378, 1381 (Fed. Cir.

1995)). However, their argument misses the mark. The stabilization doctrine “does not permit a

claimant to delay bringing suit until any possibility of further damage has been removed.”

Mildenberger, 643 F.3d at 946. Rather, the doctrine provides that “claimants are not required to

sue when it is still uncertain whether the gradual process will result in a permanent taking.” Id.

Frazer/Exton and Whiteland fail to recognize that the “nature and extent of the taking” refers to

the taking’s permanency (or lack thereof), not the taking’s damages quantum.

Assuming (without deciding) that Frazer/Exton and Whiteland could not quantify “the

full consequences of the damages” until the “imposition of the [September 11, 2017]

Environmental Covenant . . . allowed a final account to be struck,” Opp’n 11-12, that lack of

knowledge is not dispositive. Ignorance of a claim that a plaintiff “should have been aware of is

not enough to suspend the accrual of a claim.” Ingrum, 560 F.3d at 1314-15. Frazer/Exton and

Whiteland’s Takings Clause claim accrued when they “knew or should have known [that] the

alleged contamination by the United States,” Mot. 12, effected a permanent taking, not when

they became aware of the full extent of the damage. See Boling, 220 F.3d at 1371 (“[T]he

proposition that the filing of a lawsuit can be postponed until the full extent of the damage is

known has been soundly rejected.”).

Construing the complaint in the light most favorable to Frazer/Exton and Whiteland, their

argument that their “harm did not exist until the loss of use and property value could be

determined as a result of the Environmental Covenant,” Opp’n 12, invokes the “inherently

unknowable” prong of the accrual suspension rule. The “inherently unknowable” test involves a

“reasonableness inquiry.” Holmes v. United States, 657 F.3d 1303, 1320 (Fed. Cir. 2011);

accord Japanese War Notes Claimants Ass’n of Philippines, Inc. v. United States, 178 Ct. Cl.

630, 634 (1967) (“[T]he statute will not begin to run until plaintiff learns or reasonably should

have learned of [its] cause of action.”). Thus, the court must determine whether Frazer/Exton

and Whiteland’s alleged ignorance of their claim prior to September 11, 2017, when the

Environmental Covenant was executed, was reasonable.

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As noted above, the Environmental Covenant contains a description of the contamination

and remediating of the Foote Mineral Superfund Site. Opp’n Ex. 2 at 3-4. That description

refers to the following public events:

• October 14, 1992—subject property listed as a Superfund site

in the Federal Register,

• March 30, 2006—EPA issues a Record of Decision selecting a

remedy for the Foote Mineral Superfund Site,

• July 25, 2008—United States District Court for the Eastern

District of Pennsylvania enters the consent decree that

“requires [Frazer/Exton] to finance and perform the remedial

design and remedial action at the site,” and

• October 28, 2010—EPA issues a Superfund Preliminary Close

Out Report regarding the Foote Mineral Superfund Site.

Id. at 3. The description also included a notation that the “administrative record pertaining to the

[Record of Decision] is located at” the EPA office in Philadelphia, Pennsylvania as well as the

Chester County Library in Exton, Pennsylvania. Id. at 4. In addition to being actually known by

Frazer/Exton, these are all public events, and accordingly are “by definition knowable.” Central

Pines Land Co. v. United States, 61 Fed. Cl. 527, 534 (2004); accord id. (“A party will be

charged with knowing any facts that are discoverable in public records, and ignorance of one’s

legal rights arising from those facts is not a sufficient excuse to justify tolling the statute of

limitations.”). Further, there is no indication or suggestion that the federal government

“intentionally conceal[ed] its actions from [Frazer/Exton and Whiteland]” such that they were

“unaware that a claim exist[ed],” id. at 535, following the October 28, 2010 close out report.

Indeed, Frazer/Exton was aware of the presence of bromate in the groundwater by 2003 at the

latest, and the extended scope of the contamination prior to entry of the consent decree in 2008.

Finally—and most importantly—Frazer/Exton itself has averred that it completed the required

remediation in 2011.

Accrual suspension will not be available “where a claimant could have asserted a claim if

it had sought advice, launched an inquiry, or otherwise taken steps to discover available

information.” Id. at 534. Thus, Frazer/Exton and Whiteland could not delay the accrual of their

claim by delaying their investigation (here, by executing the Environmental Covenant containing

land use restrictions that allegedly reduced the value of their property) when they had access to

all of the necessary facts—by virtue of those facts being in the public record, as well as

Frazer/Exton’s actual knowledge of those facts—giving rise to their claim. If litigants were able

to so delay, the six-year statute of limitations set forth in 28 U.S.C. § 2501 would be superfluous.

The holding of the United States Court of Appeals for the Federal Circuit (“Federal

Circuit”) in Banks—that the plaintiffs’ claims were reasonably uncertain until after particular

reports were issued, 314 F.3d at 1310—does not compel a finding for Frazer/Exton and

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Whiteland in the instant case. In Banks, the plaintiffs contended that the construction and

maintenance of jetties by the United States Army Corps of Engineers (“Corps”) damaged a

lakebed, thereby effecting a taking of the plaintiffs’ property without just compensation. Id. at

1305-06. At issue was whether the Corps’s mitigation efforts to combat the erosion caused by

the jetties prevented the plaintiffs’ claims from accruing. Id. at 1307-08. The Federal Circuit

determined that because the mitigation efforts undertaken by the Corps “appeared to successfully

stave off the damaging effects of the jetties . . . , the accrual of plaintiffs’ claims remained

uncertain until [reports issued by the Corps] collectively indicated that erosion was permanent

and irreversible,” and thus the statute of limitations did not begin to run until the reports were

issued. Id. at 1310. In the instant case, the necessary information that “collectively indicated”

the extent of the contamination on the Foote Mineral Superfund Site were all available to

Frazer/Exton and Whiteland no later than 2011, when remediation was completed. Frazer/Exton

and Whiteland therefore had access, by 2011, to all of the information necessary to determine the

permanent nature of the alleged taking.

Nor does Mildenberger compel a finding for Frazer/Exton and Whiteland. In

Mildenberger, the plaintiffs alleged that the Corps’s repeated discharge of waters from a lake

effected a taking of their riparian rights along the river into which the released water flowed.

643 F.3d at 942-43. The plaintiffs argued that their uncertainty regarding the permanent nature

of the consequences of the Corps’s actions was justifiable because the Corps had made

“numerous efforts and even more promises to mitigate the damage” caused by the discharges.

Id. at 947 (internal quotation marks omitted). The Federal Circuit rejected that argument,

explaining that there was “no justifiable uncertainty . . . because the Corps neither undertook nor

committed itself to any mitigation activities,” and distinguished the case from Banks, in which

the Corps had actually undertaken mitigation efforts. Id. Here, because Frazer/Exton completed

the remediation in late 2011, there could have been no uncertainty surrounding the permanency

of the alleged taking after that point.

While “determining the exact point of claim accrual is difficult” when, as here, a gradual

physical process is involved, id. at 945, the court need not determine the specific date on which

Frazer/Exton and Whiteland were reasonably aware of the permanent nature of the alleged

taking. Without having to identify the precise date, Frazer/Exton and Whiteland clearly had such

knowledge by no later than 2011, when Frazer/Exton completed the required remediation. Since

the original complaint was filed more than six years later, the Court of Federal Claims lacks

jurisdiction to entertain this case.7

7

Because the court lacks jurisdiction to entertain this case, it need not address

defendant’s arguments concerning standing and waiver.

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IV. CONCLUSION

The court has considered all of the parties’ arguments. To the extent not discussed

herein, they are unpersuasive, without merit, or unnecessary for resolving the issues currently

before the court.

For the aforementioned reasons, the court GRANTS defendant’s motion to dismiss. The

amended complaint is DISMISSED WITHOUT PREJUDICE in its entirety for lack of

subject-matter jurisdiction. No costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Chief Judge

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