Graves v. United States

In the United States Court of Federal Claims

MICHAEL GRAVES, et al.,

No. 21-1464L

Plaintiffs, (Filed: July 7, 2022)

v. Takings; Physical Takings;

Land-Use Exaction; Statute of

THE UNITED STATES OF AMERICA,

Limitations; Motion to

Defendant. Dismiss

A. Blair Dunn, Albuquerque, NM, for Plaintiff.

Mark Pacella, Environment and Natural Resources Division, United States Department of

Justice, Washington, DC, for Defendant.

OPINION AND ORDER

LERNER, Judge.

Plaintiffs Michael Graves and Sue Ann Graves allege that the United States took their

property interest in a Colorado forest road through a physical taking without just compensation,

in violation of the Fifth Amendment to the United States Constitution. The Government filed a

motion to dismiss, in which it argued that Plaintiffs’ Complaint is barred by the six-year statute

of limitations for claims brought under the Tucker Act. This Court held oral argument on the

Government’s Motion on May 19, 2022. For the reasons that follow, the action was brought

beyond the statute of limitations, Defendant’s Motion to Dismiss is GRANTED, and the

Complaint is DISMISSED.

I. Background

A. Factual Background1

1. Forest Road 252 1B

Michael Graves and Sue Ann Graves own property (the “Graves Property”) in rural

Conejos County, Colorado, completely encased within the boundaries of the Rio Grande

1

The Court includes jurisdictional facts drawn from the Government’s motion. See Rocovich v.

United States, 933 F.2d 991, 993 (Fed. Cir. 1991) (holding that the Court may “inquire into

jurisdictional facts” to determine whether it has jurisdiction).

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National Forest. See Compl. ¶¶ 1, 12–14, ECF No. 1; Def.’s Mot. to Dismiss (“Def.’s Mot.”)

at 1, ECF No. 7. The property has historically been accessed by way of a United States Forest

Service (“USFS” or “Forest Service”) Forest Road (“FR”) and its offshoot—FR 252 and

FR 252 1B, respectively. Compl. ¶ 2; Def.’s Mot. at 1. Both roads sit on federal National Forest

land. See Compl. ¶¶ 2–4; Def.’s Mot. at 1; Def.’s Mot. Ex. 3, ECF No. 7-3 (Conejos Peak

Ranger District map); Def.’s Mot. Ex. 4, ECF No. 7-4 (National Forest Road designation map).

Plaintiffs allege that they own a real property right-of-way easement on the offshoot road, which

they refer to as the “Graves private road.” See Compl. at 1–2, ¶¶ 1, 2, 25.

Under the Mining Act of 1866, which later became section 2477 of the Revised Statutes

(“R.S. 2477”), private landowners surrounded by public lands could establish a right-of-way

interest over access roads to their property. Mining Act of 1866, § 8, 14 Stat. 251, 253, codified

at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976, Pub. L.

No. 94-579, § 706 (a), 90 Stat. 2743, 2793; see generally Pamela Baldwin, Cong. Rsch. Serv.,

No. 93-74A, Highway Rights of Way: The Controversy Over Claims Under R.S. 2477 (1993).

Plaintiffs claim that their physical right-of-way property interest in the FR 252 1B offshoot was

established around 1912 under R.S. 2477 from the original grant of the Graves Property. See

Compl. ¶¶ 8, 9 (citing R.S. 2477); id. at ¶¶ 2, 22; Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot.

to Dismiss (“Pl.’s Resp.”) at 5–10, ECF No. 8. They trace the chain of title on the Graves

Property to 1912 and allege that FR 252 1B is an offshoot of a road established in 1895 and

1896. See Compl. ¶¶ 18, 22.

In approximately 1995, ownership of the Graves Property passed to Mr. Graves’s mother,

Margarite Lindsey. See Compl. ¶ 17; Compl. Ex. 2, ECF No. 1-2. In 1996, she signed a “private

road easement” or “permanent easement” with the USFS that permitted her access to the Graves

Property using FR 252 1B. See Compl. ¶ 17; see also Compl. Ex. 2; Def.’s Mot. Ex. 1, ECF

No. 7-1. This easement grant recognized that the USFS owned the road and gave Ms. Lindsey a

“nonexclusive easement for use of a road.” Def.’s Mot. Ex. 1. Plaintiffs acquired the Graves

Property in their names in 1999. See Compl. Ex. 2.

2. The Forest Service’s Management of Forest Road 252 1B

Under the Federal Land Policy and Management Act of 1976 (“FLPMA”), the USFS has

authority to manage the “roads, trails [and] highways” over public forest land, which the Forest

Service organizes into a system of national forest roads. 43 U.S.C. § 1761(a)(6); see generally,

United States v. Jenks, 22 F.3d 1513, 1515–17 (10th Cir. 1994). For non-public roads, the USFS

issues private easements and other special-use permits that dictate private access requirements.

See, e.g., Fitzgerald Living Tr. v. United States, 460 F.3d 1259, 1261–62 (9th Cir. 2006)

(describing an example of a plaintiff’s permits and easements).

Plaintiffs explain that FR 252 1B was a “pre-forest reservation road” until around 2009,

when “the Forest Service declared the road a ‘system’ road when previously it was not a system

road and was never maintained.” Compl. ¶¶ 18–19. Following the declaration of FR 252 1B as

a national forest system road, the USFS installed a sign (“FR 252 1B”), but Plaintiffs allege they

were not given notice that the road was “taken” under USFS control. Id. ¶ 19. Then, in 2012,

the Bureau of Land Management allegedly “surveyed the road to provide the proper legal

description for a special use permit.” Id. ¶ 3.

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3. The Forest Service’s Alleged Taking

Plaintiffs allege that in 2012, the USFS “pressed Mr. Graves into waiving the permanent

renewable easement” previously signed by his mother “for a revocable special use permit.”

Compl. ¶ 17.2 The Graveses signed a “Private Road Easement Issued Under the [FLPMA]” (the

“2012 FLPMA Easement”) that, like the prior agreement, permitted them access to their property

using FR 252 1B.3 Def.’s Mot. Ex. 2, ECF No. 7-2 at 1; see Compl. ¶ 17. The FLPMA

Easement is “a nonexclusive easement for use of a road” that places multiple restrictions on

Plaintiffs’ use. Def.’s Mot. Ex. 2 at 1. For example, it requires that Plaintiffs pay annual fees

and reserves the USFS’s right to use the road, extend use of the road to other users, issue rights-

of-way to others, and “terminate this easement if [it] assumes jurisdiction and control of the road

as a National Forest System Road and issues a replacement easement.” Id. at 3–4. The Graveses

signed the FLPMA Easement on September 26, 2011, and the USFS approved the easement on

January 4, 2012. Id. at 1, 5. It remains in effect today. Compl. ¶ 17.

Plaintiffs assert that the 2012 FLPMA Easement did not apply to them or extinguish their

rights in the road. Oral Arg. Tr. at 6:23–8:9, ECF No. 14; see Compl. ¶¶ 19–23; Pl.’s Resp. at 3.

They recognize that the Forest Service is permitted under FLPMA to regulate their interest—

such as by use of an easement application—but maintain that they had a verbal understanding

with the USFS that the 2012 Easement did not require them to forgo their right-of-way under

R.S. 2477. See Oral Arg. Tr. at 13:19–23. For example, Plaintiffs’ counsel highlights that it is

common for the USFS to have other agreements and notes that they did not pay the permit fee

for a period of years when they were told it was not required. See Oral Arg. Tr. at 15:15–24.

Then, in 2016, Plaintiffs allege that a USFS official told them that the Forest Service had

seized the forest road and stated that “even if [FR 252 1B] was previously a private easement[,]

that it was now a forest system road belonging to the federal government.” Compl. ¶ 19.

Plaintiffs “provided a copy of a warranty deed stating FR 252 1B was a private road easement,”

but were told that “FR 252 1B was not [their] property.” Id. ¶ 4.

Overall, the Graveses maintain that they hold a private right-of-way interest in FR 252

1B that grants them exclusive use. See id. ¶¶ 4, 14, 26; Oral. Arg. Tr. at 11:7–10, 14:8–9,

15:6–8. They allege that the USFS, “by denying and refusing to recognize the statutorily vested

real property right-of-way easements of Plaintiffs, by extracting special use permits, permit fees,

and by declaring that the private property right of way easement was a public easement in

2018[,] took . . . private property away from the Plaintiffs through inverse condemnation.”

2

Plaintiffs allege that easement discussions with the Forest Service occurred in 2012. See

Compl. ¶ 17. However, the Graveses signed the 2012 FLPMA Easement in 2011. Def.’s Mot.

Ex. 2 at 7.

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Though Plaintiffs allege that the 2012 FLPMA Easement was a “revocable special use permit”

that was different in kind from the “permanent renewable easement” signed by Mr. Graves’s

mother, both permits are labeled as a “Private Road Easement,” and both dictate a similar set of

terms. Compare Def.’s Mot. Ex. 1 (1996 FLPMA Easement to Lindsey), with Def.’s Mot. Ex. 2

(2012 FLPMA Easement to Graves). Moreover, Plaintiffs do not allege that the different names

are legally relevant for the purposes of this case.

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Compl. at 1. Specifically, the Plaintiffs argue that the “Forest Service requirement that Mr.

Graves maintain an easement, pay fees, and the requirement of a special use permit, and allowing

other landowners to use Mr. Graves [sic] private easement constitutes a taking under the Fifth

Amendment.” Id. ¶ 23; see also Compl. ¶¶ 25–26.

B. Procedural Background

Plaintiffs filed a Complaint on June 11, 2021, for just compensation for the alleged

taking. See Compl. The Government filed a motion to dismiss on October 12, 2021. See Def.’s

Mot. Plaintiffs filed a response brief, see Pl.’s Resp., and the Government filed a reply brief, see

Def.’s Reply Mem. in Supp. of Mot. to Dismiss (“Def.’s Reply”), ECF No. 9.

II. Legal Standards

A. Subject Matter Jurisdiction

Under the Tucker Act, the Court of Federal Claims has jurisdiction over “any claim

against the United States founded either upon the Constitution, or any Act of Congress or any

regulation of an executive department, or upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.

§ 1491(a)(1). Because the Tucker Act only waives sovereign immunity and does not create

substantive rights, a plaintiff must identify a separate source of law that can be fairly interpreted

as creating a right to money damages. Fisher v. United States, 402 F.3d 1167, 1172 (Fed.

Cir. 2005); see also United States v. Navajo Nation, 556 U.S. 287, 289–90 (2009).

The Tucker Act encompasses the Fifth Amendment Takings Clause, which is a money-

mandating provision that grants jurisdiction in this Court. See Williams v. United States,

289 U.S 553, 581 (1933); Jan’s Helicopter Serv., Inc v. FAA, 525 F.3d 1299, 1309 (Fed.

Cir. 2008) (“[T]he Takings Clause of the Fifth Amendment is a money-mandating source for

purposes of Tucker Act jurisdiction.”). This Court has exclusive jurisdiction for inverse

condemnation claims exceeding $10,000. See 28 U.S.C. § 1491; Morris v. United States,

392 F.3d 1372, 1375 (Fed. Cir. 2004).

Subject matter jurisdiction is a threshold issue. Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94–95 (1998). If this Court determines that it lacks subject matter jurisdiction, it

must dismiss the action. RCFC 12(h)(3). Under RCFC 12(b)(1), the burden of proving

jurisdiction lies with the plaintiff seeking to invoke this Court’s jurisdiction. McNutt v. Gen.

Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Alder Terrace, Inc. v. United States,

161 F.3d 1372, 1377 (Fed. Cir. 1998); see The George Fam. Tr. ex rel George v. United States,

91 Fed. Cl. 177, 189 (2009) (“[I]t is a plaintiff’s responsibility to allege facts sufficient to

establish the court’s subject matter jurisdiction.”).

When a party challenges the truth of the jurisdictional facts alleged in the complaint, this

Court determines whether the plaintiff has established jurisdiction by a preponderance of the

evidence. Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

Additionally, the Court may “inquire into jurisdictional facts” to determine whether it has

jurisdiction. Rocovich v. United States, 933 F.2d 991, 994 (Fed. Cir. 1991).

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B. Statute of Limitations

The United States Court of Federal Claims has a six-year statute of limitations.

28 U.S.C. § 2501. Compliance with the statute of limitations is a jurisdictional issue that cannot

be equitably tolled or waived. John R. Sand & Gravel Co. v. United States, 552 U.S. 130,

133–35 (2008); Reoforce, Inc. v. United States, 853 F.3d 1249, 1264 (Fed. Cir. 2017); Davis v.

United States, 108 Fed. Cl. 331, 339 (2012), aff’d, 550 F. App’x 864 (Fed. Cir. 2013) (“The six-

year time bar on actions against the United States is jurisdictional, because filing within the six-

year period is a condition of the wavier of sovereign immunity in the Court of Federal Claims

under the Tucker Act, 28 U.S.C. § 1491(a)(1).”) (collecting cases).

III. Discussion

The Government filed a motion to dismiss under RCFC 12(b)(1) on the grounds that

Plaintiffs’ claims are barred under the Tucker Act’s six-year statute of limitations. Def.’s Mot.

at 15–16. The Government also argues that this Court lacks jurisdiction over Plaintiffs’ demands

for declaratory and injunctive relief and for claims against individually named defendants.

Def.’s Mot. at 16–20. Lastly, the Government moves to dismiss under RCFC 12(b)(6) for the

Plaintiffs’ alleged failure to state a cognizable takings claim. Def.’s Mot. at 20–27. Because the

Court ultimately concludes that Plaintiffs’ alleged taking is outside the statute of limitations—

and this Court therefore lacks subject matter jurisdiction—the merits of the Graveses’ alleged

property interest under R.S. 2477 are not determined.

A. Plaintiffs’ Burden to Prove Subject Matter Jurisdiction

As an initial matter, Plaintiffs contend that allegations of fact “must be inferred in favor

of Plaintiffs” and that it “is not appropriate to construe facts against the non-movant Plaintiff.”

Pl.’s Resp. at 4–5. Generally, Plaintiffs are correct that this Court must accept all reasonable

inferences in their favor during the pleading stage. See Carter v. United States, 62 Fed. Cl. 66,

69 (2004) (“When a defendant does not challenge the jurisdictional facts alleged in the complaint

and instead makes a challenge to the face of the complaint, the court must accept all factual

allegations as true and ‘must draw all reasonable inferences in the non-movant’s favor.’”)

(quoting Sumter v. United States, 61 Fed. Cl. 517, 520 (2004)). Typically, a “plaintiff’s

complaint need only contain ‘a short and plain statement of the grounds upon which the court’s

jurisdiction depends.’” Id. (citing RCFC 8(a)(1)); see also ABBA Turbo Sys. AG v. Turbousa,

Inc., 774 F.3d 979, 984 (Fed. Cir. 2014).

However, when a defendant challenges the jurisdictional facts alleged in a complaint, the

Court can engage in fact finding and determine whether the plaintiff has established subject

matter jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 748; cf. Hymas v.

United States, 810 F.3d 1312, 1317 (Fed. Cir. 2016). When this occurs, “only uncontroverted

factual allegations are accepted as true,” Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583

(Fed. Cir. 1993), and the Court may consider other relevant evidence to resolve the factual

dispute, Reynolds, 846 F.2d at 747. And here, the Government challenges the Plaintiffs’

assertion of jurisdiction for a claim within the six-year statute of limitations. See Def.’s Mot.

at 15–16; Def.’s Reply at 3–4.

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B. Statute of Limitations

1. Claim Accrual for Physical Takings

Under the Fifth Amendment to the United States Constitution, the Government may not

take “private property . . . for public use, without just compensation.” U.S. Const. amend. V,

cl. 4. Claims for just compensation for takings under the Tucker Act must be filed in this Court

within six years of the accrual of the takings claim. 28 U.S.C. § 2501; Boling v. United States,

220 F.3d 1365, 1370 (Fed. Cir. 2000). Generally, “a takings claim accrues when ‘all events

which fix the government’s alleged liability have occurred and the plaintiff was or should have

been aware of their existence.’” Boling, 220 F.3d at 1370 (quoting Hopland Band of Pomo

Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)); see also Casitas Mun. Water

Dist. v. United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013).

Plaintiffs allege a physical taking. Pl.’s Resp. at 15 (“[T]he United States has deprived

[Plaintiffs] of the title and the free enjoyment of the properties and easement through inverse

condemnation by physical taking.”). Typically, “[t]he act that causes accrual of a physical taking

claim is the act that constitutes the taking.” Casitas Mun. Water Dist., 708 F.3d at 1359 (citing

Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009)). For example, a physical takings

claim regularly accrues on “the date on which the plaintiff’s land has been clearly and

permanently taken.” Boling, 220 F.3d at 1370 (citing Seldovia Native Assoc., Inc. v. United

States, 144 F.3d 769, 774 (Fed. Cir. 1998)). “The clock starts as soon as the plaintiff is put on

notice that inquiry into a possible claim is called for.” L.E. Cooke Corp. v. United States,

27 Fed. Cl. 753, 754 (1993); see Menominee Tribe of Indians v. United States, 726 F.2d 718,

720–21 (Fed. Cir. 1984), cert. denied, 469 U.S. 826 (1984).

In addition, “a viable takings claim can arise in the ‘special context of land-use

exactions’” when a governmental body demands that a private landowner surrender property as a

condition for obtaining a permit. Martin v. United States, 894 F.3d 1356, 1361 (Fed. Cir. 2018)

(quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005)). In this context, the

“government may not condition the approval of a land-use permit on the owner’s relinquishment

of a portion of his property” without meeting heightened requirements. Koontz v. St. Johns River

Water Mgmt. Dist., 570 U.S 595, 599, 605–06 (2013); see also Martin, 894 F.3d at 1361.

2. The Plaintiffs’ Alleged R.S. 2477 Property Interest

The Graveses allege a physical taking, coupled with a land-use exaction, of their private

right-of-way interest in FR 252 1B. See Compl. ¶¶ 23–26. Specifically, they claim that the

required special-use permit—the 2012 FLPMA Easement—constitutes a physical taking of their

right-of-way interest in FR 252 1B, which the Graveses derived as granted to their inholding

under R.S. 2477. Compl. ¶¶ 8, 23, 25; see also Oral Arg. Tr. at 5:5–21.

R.S. 2477 held that “the right-of-way for the construction of highways over public lands,

not reserved for public uses, is hereby granted.” Mining Act of 1866, § 8, 14 Stat. 251, 253,

codified at 43 U.S.C. § 932, repealed by FLPMA, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743,

2793 (1976); see also Pl.’s Resp. at 6; Compl. ¶ 8; see generally Cnty. of Inyo v. Dep’t of

Interior, 873 F. Supp. 2d 1232, 1235 (E.D. Cal. 2012) (describing history of the Mining Act of

6

1866). The Act recognized a right of ingress and egress to landowners and codified an implied

license to a right-of-way for the construction of roads (“highways”) for private lands situated

within public lands (“inholdings”). See generally Pamela Baldwin, Cong. Rsch. Serv.,

No. 93-74A, Highway Rights of Way: The Controversy Over Claims Under R.S. 2477 (1993).

Because establishing a right-of-way under R.S. 2477 “required no administrative formalities: no

entry, no application, no license, no patent, and no deed on the federal side,” these interests have

become “one of the more contentious land use issues in the West.” S. Utah Wilderness All. v.

BLM, 425 F.3d 735, 740–41 (10th Cir. 2005).

The Federal Land Policy and Management Act (“FLPMA”) of 1976 reformed the federal

government’s approach to public lands. See 43 U.S.C. § 1701 et seq.; see S. Utah Wilderness

All., 425 F.3d at 741 (“[FLPMA] instituted a preference for retention of the lands in federal

ownership.”). It repealed R.S. 2477 but kept remaining right-of-way interests intact without

altering access for inholdings, specifying that any “valid” rights-of-way “would continue in

effect.” S. Utah Wilderness All., 435 F.3d at 740 (citing Pub. L. No. 94-579, § 701(a),

90 Stat. 2743, 2786).

However, FLPMA nevertheless permitted the Forest Service to reasonably regulate R.S.

2477 right-of-way interests, such as with special-use permits or other private easement grants.

43 U.S.C. § 1761(b); see, e.g., Martin, 894 F.3d at 1360 (discussing the USFS’s special-use

permit requirement for plaintiffs’ road reconstruction). Reasonable regulation of inholdings was

further clarified in the Alaska National Interest Lands Conservation Act of 1980. Pub. L. No.

96-487, 94 Stat. 2371, codified at 16 U.S.C §§ 3101–3233; see 16 U.S.C. § 3210(a) (clarifying

the reasonable regulation requirement); Jenks, 22 F.3d at 1516 (describing the reasonable

regulation requirement under FLPMA).

The Graveses recognize that the Forest Service can impose reasonable regulations on

their access. Oral Arg. Tr. at 23:7–13, 23:24–24:23, 31:3–12. Nevertheless, they assert that the

USFS’s requirement that they sign a special-use permit acts as an unconstitutional land-use

exaction and inversely condemns their property interest derived under R.S. 2477. See

Compl. ¶¶ 23–26; Oral Arg. Tr. at 23:7–13.

3. Plaintiffs Should Have Been Aware of the Alleged Taking in 2011

Whether a plaintiff “was or should have been aware” of a taking for accrual purposes, see

Hopland, 855 F.3d at 1577, is “determined under an objective standard; a plaintiff does not have

to possess actual knowledge of all the relevant facts in order for the cause of action to accrue.”

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

quotation marks omitted) (quoting Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995)).

The Complaint spotlights three relevant dates: (1) “In 2012[,] the Forest Service pressed

Mr. Graves into waiving the permanent renewable easement for a revocable special use permit,”

Compl. ¶ 17; (2) “Sometime after 2009, the Forest Service declared the road a ‘system’

road . . . [and] did not give notice that they had taken the road,” Compl. ¶ 19; and (3) In a

November 2016 meeting, a USFS official “stated for the first time on behalf of the Forest

Service that even if [FR 252 1B] was previously a private easement that it was now a forest

system road belonging to the federal government,” Compl. ¶ 19. The Graveses assert that their

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takings claim accrued in November 2016 when they were first told that the USFS was claiming

ownership of FR 252 1B. Compl. at 10, ¶ 5 (prayer for relief); Oral Arg. Tr. at 4:11–6:4.

Though the Graveses may not have understood prior to 2016, under an objective

standard, they should have known of any potential takings claim when they signed the 2012

FLPMA Easement. See Def.’s Mot. Ex. 2 at 5. Their takings claim is that the “Forest Service

requirement that Mr. Graves maintain an easement, pay fees, and the requirement of a special use

permit, and allowing other landowners to use [his] private easement constitutes a taking under

the Fifth Amendment.” Compl. ¶ 23; see also id. ¶¶ 25–26. These allegedly unconstitutional

requirements were all included in the 2012 FLPMA Easement. See Def.’s Mot. Ex. 2. at 1 (“This

grant is made subject to the following terms, provisions, and conditions applicable to [the

Graveses].”). The 2012 Easement requires that the Graveses pay an annual fee; reserves for the

Forest Service the “right to cross and recross the road at any place by any reasonable means and

for any purpose”; grants the Forest Service the “right alone to extend rights and privileges for use

of the road . . . to other users”; and permits the Forest Service the right to “terminate this

easement if [it] assumes jurisdiction and control of the road as a National Forest System Road.”

Def.’s Mot. Ex. 2 at 2–4. The easement is also a “nonexclusive easement for use of a road” that

terminates if the United States operates the road as a public highway. Id. at 1, 3.

Even if Plaintiffs were not aware that the 2012 FLPMA Easement applied to them and

thought that a contrary verbal agreement existed, see Oral Arg. Tr. at 13:19–23, the fact that the

Graveses both signed a document that unequivocally contradicts that understanding requires an

alternative finding. See Def.’s Mot. Ex. 2 at 1, 4. Plaintiffs argue that they have a private

property interest in the road, entitling them to exclusive ownership and title of an easement with

only reasonable government restrictions, yet the easement they signed in 2011 placed upon them

the exact limitations and restrictions that they now dispute. Compare Compl. ¶ 14, and Oral

Arg. Tr. at 11:7–10, with Def.’s Mot. Ex. 2. According to Plaintiffs, in 2012, they lacked “any

understanding at that point that they were surrendering their right to the road, their permanent

easement, [or] their private property.” Oral Arg. Tr. at 5:14–21. That may be true, but under the

objective standard, Plaintiffs should have known that the plain language of the 2012 FLPMA

Easement impacted their alleged property interest.

The 2012 FLPMA Easement, coupled with the Graveses’ signatures, is enough to

constitute objective knowledge. See Raytheon Co. v. United States, 104 Fed. Cl. 327, 330–31

(Fed. Cl. 2012) (“Defendant contends that its claims accrued . . . when it completed the initial

audit and assessment of Raytheon’s costs. . . . In fact, the Government knew or should have

known whether any of Raytheon’s costs were unallowable after the Advance Agreement was

signed.”). The Court of Appeals for the Federal Circuit in San Carlos Apache Tribe held that the

San Carlos Apache’s claim against the United States for failure to obtain additional water rights

in a 1935 decree accrued on the date of the agreement because “the terms of the Decree plainly

and objectively indicate[d] which water rights the Tribe did and, importantly, did not receive.”

639 F.3d 1346, 1351 (Fed. Cir. 2011). Even if the Tribe was unaware of the full extent of the

1935 decree until a half-century later, when it learned that other water rights were excluded, the

Court held that “under an ‘objective standard,’ the Tribe knew or should have known that the

terms of the Decree precluded the Tribe from seeking additional . . . water rights.” Id. (internal

citations omitted) (quoting Fallini, 56 F.3d at 1380). Similarly, the 2012 FLPMA Easement

included sufficient specific restrictions on the Graveses use of FR 252 1B to “put [them] on

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notice that inquiry into a possible [takings] claim” of their alleged property interest was called

for. L.E. Cooke Corp., 27 Fed. Cl. at 754.

At oral argument, Plaintiffs’ counsel maintained that the Graveses did not know in 2012

based on the “objective fact that the Forest Service told them that in exchange for this special-use

permit . . . [the USFS is] not requiring you to surrender your property interest.” Oral Arg. Tr.

at 31:15–23; see also id. at 9:17–20. But what the Graveses may have believed is not relevant to

this standard—that is a question of subjective knowledge. See Fallini, 56 F.3d at 1380 (“[A]

plaintiff does not have to possess actual knowledge.”); see also Banks v. United States,

76 Fed. Cl. 686, 693 (2007) (“[D]efendant’s focus on what ‘the landowners were aware of’

results in a misreading . . . The key issue [for a taking] was an objective determination of the date

when the physical process of erosion had reached a point of ‘stabilization,’ not whether the

landowners had believed the situation to be stable.”).

Also at oral argument, Plaintiffs’ counsel emphasized that the Graveses were not on

notice of the taking until the 2016 meeting with the USFS official. See Oral Arg. Tr. at 7:8–8:9.

But even assuming a subjective knowledge standard, the date of the alleged statement by the

Forest Service official cannot, on its own, be the accrual date. A “mere government[al] assertion

of ownership does not constitute a taking.” Katzin v. United States, 908 F.3d 1350, 1360 (Fed.

Cir. 2018). “A physical taking generally occurs when the government directly appropriates

private property or engages in the functional equivalent of a practical ouster of the owner’s

possession.” Campbell v. United States, 932 F.3d 1331, 1337 (Fed. Cir. 2019) (internal

quotation marks omitted) (quoting Katzin, 908 F.3d at 1361). An official that shares information

about the government’s claim of ownership but does not otherwise impact the owner’s interest—

such as to cause a “permanent physical invasion” or “deprive Plaintiffs of all economically

beneficial use of Plaintiffs’ property”—does not commit a physical taking. Katzin, 908 F.3d

at 1362. Thus, if a taking occurred in this case, it would have happened on the date that the

USFS engaged in the functional equivalent of a practical ouster of the Graveses’ possession.

This was the 2012 FLPMA Easement, not the date that the USFS official explained the effects of

the easement to them.

Ultimately, if the Plaintiffs did have a takings claim, it accrued with the 2012 FLPMA

Easement, regardless of their subjective understanding at that time. See Fallini, 56 F.3d at 1380;

see also, e.g., Raytheon Co., 104 Fed. Cl. at 330–31 (“[T]he Government knew or should have

known . . . [when] the Advance Agreement was signed.”).

4. The Complaint Contradicts Plaintiffs’ Stated Understanding

Though the Court finds that the Graveses should have known of the alleged taking when

they signed the 2012 FLPMA Easement, there are additional indicators that Plaintiffs should

have been aware of restrictions on their alleged R.S. 2477 interest prior to 2012.

First, Plaintiffs acknowledge that in 2009, “the Forest Service declared the road a

‘system’ road” and installed a sign identifying it as “FR 252 1B.” Compl. ¶ 19. Plaintiffs

thought that the forest road was a “private road that they should be able to use exclusively.” Oral

Arg. Tr. at 11:7–10; see also Compl. ¶¶ 4, 14, 26. But the notification that the road was placed

in the National Forest Road System, coupled with a sign stating the same, indicates that their use

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was nonexclusive or that the Forest Service took their exclusive interest. See The George Fam.

Tr. ex rel. George, 91 Fed. Cl. at 198 (“The George Trust—particularly Mr. George, having lived

on the property for approximately fifty years—is on inquiry of such open and notorious activity

by the Corps and the damage attributable thereto.”).

Second, the FLPMA Easement that the Graveses signed in 2011 included the same terms

and restrictions as the 1996 Easement signed by Mr. Graves’s mother. Compare Def.’s Mot.

Ex. 1 (1996 FLPMA Easement to Lindsey), with Def.’s Mot. Ex. 2 (2012 FLPMA Easement to

Graves). Like Plaintiffs, Mr. Graves’s mother signed a “nonexclusive easement for use of

[FR 252 1B.]” Def.’s Mot. Ex. 1. Both easements were “for a road over certain lands or

assignable easements owned by the United States.” Def.’s Mot. Ex. 1 (emphasis added); Def.’s

Mot. Ex. 2 (emphasis added). Both also contained the same restrictions, including: the right of

the USFS to terminate the easement if the road became a public highway; to use the road in any

manner that did not interfere with the grantee; to extend rights and privileges for use of the road

to others; and “to terminate this easement if the Grantor assumes jurisdiction and control of the

road as a National Forest System Road and issues a replacement easement providing only for use

of the road.” Def.’s Mot. Ex. 2 at 4; see Def.’s Mot. Ex. 1 at 5.

In sum, other than the small difference in the annual permit fee amount, the two

easements are essentially the same. Compare Def.’s Mot. Ex. 1 at 4 (containing an annual

permit fee of $102.59), with Def.’s Mot. Ex. 2 at 2 (containing an annual permit fee of $129.44).

Though the Graveses should have been aware of the alleged taking when they signed the 2012

FLPMA Easement, these same restrictions existed under the 1996 FLPMA Easement when they

acquired the property and use of the forest road in 1999. See Compl. Ex. 2.

Plaintiffs also allege that the 2012 FLPMA Easement was a new iteration—a special-use

permit—that was pressed upon them. See Compl. ¶ 17. But the 1996 Easement stated that if the

Forest Service assumed control of the road as a Forest Development Road, it would “issue[] a

replacement easement providing only for use of the road, . . . [and t]he replacement easement

shall be in the current standard format.” Def.’s Mot. Ex. 1 at 5. As the Graveses acknowledge,

the Forest Service named FR 252 1B a “system road” in 2009 and issued a new easement to the

Graveses in 2012. See Compl. ¶¶ 3, 9, 19. The Graveses were aware of the Forest Service’s

control and were granted an updated easement to reflect this. Id. Overall, while it is not

necessary to determine whether the Graveses had objective knowledge of their alleged takings

claim at some point prior to the 2012 FLPMA Easement, the substantial similarities between the

two easements are further evidence that Plaintiffs knew or should have known of their takings

claim in 2012.

5. There Is No Basis to Apply the Accrual Suspension Rule

Plaintiffs argue for the accrual suspension rule. See Pl.’s Resp. at 5 (citing Mendez v.

United States, 135 Fed. Cl. 131, 135 (2017)). This rule holds that the accrual of a claim “may be

‘suspended . . . until the claimant knew or should have known that the claim existed.’” Mendez,

135 Fed. Cl. at 135 (quoting Martinez v. United States, 333 F.3d 1295, 1319 (Fed. Cir. 2003) (en

banc)). It applies in situations where the plaintiff received “mixed signals” from the government

or where a claim was “inherently unknowable.” Id.; see Jones v. United States, 30 F.4th 1094,

1103–04 (Fed. Cir. 2022) (citing Martinez, 333 F.3d at 1319); cf. Applegate v. United States,

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25 F.3d 1579, 1582–83 (Fed. Cir. 1994) (holding that where landowners “had no way to

determine the extent . . . of the permanent physical occupation” of their property because of

uncertainty regarding the government’s promise to prevent erosion, the “uncertainty [stayed]

accrual of the claim”). Accrual suspension stems from the larger proposition that accrual of a

takings claim starts 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.” Hopland Band of

Pomo Indians, 855 F.2d at 1577.

However, the accrual suspension rule is “strictly and narrowly applied: [p]laintiff must

either show 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.”

Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985) (internal quotation marks

omitted) (quoting Japanese War Notes Claimants Assoc. v. United States, 373 F.2d 356, 358–59

(Ct. Cl. 1967)); see also Jones, 30 F.4th at 1104 (citing Welcker, 752 F.2d at 1580).

Here, Plaintiffs do not demonstrate that the alleged taking was “inherently unknowable”

at the accrual date. As discussed, all of the actions that the Graveses allege constitute a takings

claim—that the Forest Service required them to pay fees, maintain a permit, and allow others to

use the road, see Compl. ¶ 23—are requirements found in both the 1996 and 2012 FLPMA

Easements. See Def.’s Mot. Ex. 2; Def.’s Mot. Ex. 1. If the terms were easily discernable from

the signed easement agreement, they could not have been inherently unknowable.

Plaintiffs also fail to show that the Government “concealed its acts with the result that

[P]laintiff was unaware of their existence.” Welcker, 752 F.2d at 1580 (quoting Japanese War

Notes Claimants Assoc., 373 F.2d at 359). The Complaint only references a conversation with a

Forest Service official that Plaintiffs allege put them on notice. See Compl. ¶ 19. And at oral

argument, Plaintiffs’ counsel stated that there was an outside agreement. See Oral Arg. Tr.

at 13:19–23. But neither of these allegations demonstrate that the Government “concealed its

acts” or made the 2012 FLPMA Easement “inherently unknowable.” Welcker, 752 F.2d at 1580.

Even where Plaintiffs do allege the outside agreement, this evidence is insufficient to meet

Plaintiffs’ burden to prove subject matter jurisdiction by a preponderance of the evidence.

McNutt, 298 U.S. at 189; Reynolds, 846 F.2d at 747.

Moreover, the Graveses do not allege that the Forest Service prevented them from

understanding the written terms of the 2012 FLPMA Easement or otherwise fraudulently

concealed material facts to prevent them from learning of the alleged taking. See Hopland Band

of Pomo Indians, 855 F.2d at 1577 (“[T]he statute of limitations can be tolled where the

government fraudulently or deliberately conceals material facts relevant to a plaintiff’s claim so

that the plaintiff was unaware of their existence and could not have discovered the basis of his

claim.”) (collecting cases). Because Plaintiffs do not show that the alleged taking was inherently

unknowable or concealed from them, the accrual suspension rule does not apply.

6. Plaintiffs’ Unconstitutional Condition Claim

Additionally, the nature of Plaintiffs’ takings claim itself supports the finding that their

claim accrued with the 2012 FLPMA Easement. Plaintiffs compare the USFS requirement that

they sign the 2012 FLPMA Easement to the unconstitutional conditions present in cases like

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Koontz v. St. John’s River Water Management District. See Compl. ¶ 25 (citing Koontz, 570

U.S. 595 (2013)); Oral Arg. Tr. at 23:7–13, 24:2–23, 31:3–12. In Koontz, the Supreme Court

held that the “government may not condition the approval of a land-use permit on the owner’s

relinquishment of a portion of his property” without restriction and that such governmental

demands for property “run afoul of the Takings Clause not because they take property but

because they impermissibly burden the right not to have property taken without just

compensation.” Koontz, 570 U.S. at 599, 607. Plaintiffs’ comparison to Koontz fails for

numerous reasons.

First, Koontz also held that “it is beyond dispute that taxes and user fees are not takings.”

Id. at 615 (cleaned up) (quoting Brown v. Legal Found. of Wash., 538 U.S. 216, 242 n.2 (Scalia,

J., dissenting)). Additionally, the Graveses’ 2012 Easement differs from the conditional

approval in Koontz, where property owners could not develop their property without capitulating

to demands from a state agency. See Koontz, 570 U.S. at 601–02 (describing permit

requirements). The Graveses have never been denied use of FR 252 1B or access to the Graves

Property, even though they have not always paid the minor permit fee. See Oral Arg. Tr.

15:15–16:24; Def.’s Mot. at 1; Def.’s Reply at 2.

However, even assuming that the special-use permit was an impermissible burden, this

burden existed when Plaintiffs signed the permit. See Def.’s Mot. Ex. 2 at 5; Compl. ¶ 17. For

the same reasons that the 2012 FLPMA Easement put the Graveses on notice that their alleged

property interest was “clearly and permanently taken,” the 2012 Easement similarly put them on

notice of any supposed unconstitutional condition. See Boling, 220 F.3d at 1370 (citing Seldovia

Native Assoc., Inc. v. United States, 144 F.3d 769, 774 (Fed. Cir. 1998)).

Ultimately, any takings claim would have accrued with the 2012 FLPMA Easement.

Under the facts alleged, Plaintiffs fail to prove by a preponderance of the evidence that they did

not or should not have known of the alleged takings claim from this date. Because the 2012

FLPMA Easement went into effect more than six years before Plaintiffs’ Complaint was filed on

June 11, 2021, this Court lacks subject matter jurisdiction over their takings claim.

28 U.S.C. § 2501.

C. Claims for Declaratory Relief and Claims Against Individual Defendants

Plaintiffs’ Complaint requests declaratory relief under the Declaratory Judgment Act.

See Compl. at 9–10, ¶¶ 1–4. It also names two individual defendants, the Secretary of

Agriculture and Chief of the Forest Service, in their personal capacities. See id. at 1, 2, 4.4 The

Government moves to dismiss the claim for declaratory relief and the claims against individual

defendants on the grounds that this Court does not have subject matter jurisdiction over either

claims for equitable relief or named parties that are not the United States. See Def.’s Mot.

at 16–20. During briefing, Plaintiffs “concede[d] that the declaratory and injunctive relief claims

should be dismissed along with the individually named defendants.” Pl.’s Resp. at 15. While

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The Complaint lists Vicki Christiansen as “Chief, U.S. Department of Agriculture.” Compl.

at 1. This appears to be a mistake. Vicki Christiansen was the Chief of the United States Forest

Service, as Plaintiffs correctly identify elsewhere in the Complaint. Id. ¶ 6. There is no “Chief”

of the Department of Agriculture. See Def.’s Mot. at 19 n.10.

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further analysis is unnecessary given Plaintiffs’ concession, it is well established that this Court

does not have jurisdiction over these claims.

The Government is correct that the Court of Federal Claims “does not have the general

equitable powers of a district court to grant prospective relief.” Bowen v. Massachusetts,

487 U.S. 879, 905 (1988). This Court can only grant equitable relief that is “tied and subordinate

to a money judgment.” James v. Caldera, 159 F.3d 573, 580–81 (Fed. Cir. 1998). While this

Court has limited powers to grant injunctive relief, see 28 U.S.C. § 1491 (permitting, for

example, jurisdiction for relief that is “incident of and collateral to” a money judgment, or orders

related to the correction of military records), none of the limited exceptions in the Tucker Act

apply to enjoining takings claims. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984)

(“[E]quitable relief is not available to enjoin an alleged taking of private property for a public

use, duly authorized by law, when a suit for compensation can be brought.”). Therefore, this

Court does not have jurisdiction to grant Plaintiffs’ demands for a declaratory judgment.

Additionally, this Court lacks subject matter jurisdiction over named parties that are not

the United States. “[T]he only proper defendant for any matter before [the Court of Federal

Claims] is the United States, not its officers, nor any other individual.” Stephenson v. United

States, 58 Fed. Cl. 186, 190 (2003); see also RCFC 10(a) (“The title of the complaint must name

all the parties . . . with the United States designated as the party defendant.”); United States v.

Sherwood, 312 U.S. 584, 588 (1941). Accordingly, Plaintiffs’ claims for declaratory relief and

against named defendants must be dismissed.

IV. Conclusion

For the reasons set forth above, the Government’s Motion to Dismiss is GRANTED and

the Complaint must be DISMISSED. The Clerk is hereby directed to enter judgment

accordingly.

IT IS SO ORDERED.

s/ Carolyn N. Lerner

CAROLYN N. LERNER

Judge

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