Johnson v. United States

In the United States Court of Federal Claims

No. 22-584L

(Filed: January 31, 2023)

)

JAMES P. JOHNSON and )

RADEANA L. JOHNSON, )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

James P. Johnson, Zenia, CA, pro se. Radeana L. Johnson, Zenia, CA, pro se.

Peter W. Brocker, Civil Division, United States Department of Justice, Washington, D.C.,

for Defendant.

ORDER

SOLOMSON, Judge.

Property owners filed a claim against the government, asserting that they are

entitled to compensation for property damage resulting from a wildfire. The government

filed a motion to dismiss for failure to state a claim upon which relief may be granted.

For the reasons explained below, the Court grants the government’s motion.

I. PROCEDURAL HISTORY

On May 25, 2022, Plaintiffs James P. Johnson and Radeana L. Johnson (collectively,

“Plaintiffs” or “the Johnsons”), acting pro se, filed a complaint against Defendant, the

United States, in this Court. ECF No. 1. On July 15, 2022, the government filed a motion

for a more definite statement, ECF No. 6, which the Court granted on July 21, 2022, ECF

No. 7. In granting the government’s motion, this Court instructed that “Plaintiffs shall

file an amended complaint identifying . . . the particular government action(s) that

allegedly led to the taking of their property.” ECF No. 7 at 2.

On July 28, 2022, the Court issued an order temporarily staying this case and

requesting “Plaintiffs’ consent to the Court’s referral of this case to the Pro Bono/

Attorney Referral Pilot Program of the U.S. Court of Federal Claims Bar Association

. . . for the potential representation of Plaintiffs by pro bono counsel.” ECF No. 8 at 1–2.

The Court explained that “even if the Bar Association is able to identify possible counsel

to represent Plaintiffs in this matter, Plaintiffs are not obligated to engage any particular

attorney.” Id.

On August 15, 2022, Plaintiffs filed a notice with the Court indicating that they “do

NOT consent to the Court[’]s referral of this case” for pro bono representation. ECF No.

11. On that same date, Plaintiffs filed an amended complaint alleging that the

government’s actions amounted to a taking of Plaintiffs’ personal and real property

requiring just compensation pursuant to the Fifth Amendment of the United States

Constitution. ECF No. 9 (“Am. Compl.”) at 6. Plaintiffs’ amended complaint also alleges

that the original land grant from the United States is an “expressed [sic] contract” with

the government. Am. Compl. at 2.

On September 16, 2022, the United States filed a motion to dismiss the complaint

pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims

(“RCFC”) for failure to state a claim upon which relief can be granted. ECF No. 13 (“Def.

Mot.”). On October 17, 2022, Plaintiffs filed a response, opposing the government’s

motion. ECF No. 14 (“Pl. Resp.”). 1 On October 31, 2022, the United States filed a

memorandum in reply in support of its motion to dismiss. ECF No. 16 (“Def. Rep.”).

II. FACTUAL BACKGROUND 2

Plaintiffs have owned a particular parcel of California land since 1998. Am.

Compl. at 9–10 (Exhibits A-3, A-4); Def. Mot. at 2. This parcel is surrounded by the Six

1 On the same day Plaintiffs filed their response to the government’s motion, Plaintiffs also filed

a motion requesting judicial notice. ECF No. 15. In particular, Plaintiffs asked this Court to take

notice of Article VI, Section 2 of the United States Constitution. Id. at 1. Plaintiffs further assert

that the original land grant from the United States government is an “expressed [sic] contract”

with the government and “treaty law” under the Homestead Act of 1862. Id. at 1–3 (emphasis

omitted). The United States Constitution is, of course, the supreme law of the land, and this Court

is duty bound to uphold it. In re Bailey, 182 F.3d 860, 867 (Fed. Cir. 1999) (“[F]ederal courts have

a duty to uphold the Constitution, as the Constitution is the supreme law of the land.” (citing U.S.

Const. art. VI, § 2)). To the extent Plaintiffs are trying to demonstrate that they own the property

at issue, the Court assumes that is the case, at least for the purposes of resolving the government’s

pending motion to dismiss.

2As previously noted, for the purposes of resolving the government’s motion to dismiss, the

Court assumes that all nonconclusory factual allegations pled in the amended complaint — but

2

Rivers National Forest in Northern California. Am. Compl. at 3–5, 11 (referring to the

property at issue as a “private inholding”). Plaintiffs allege that, in early September 2020,

the United States Forest Service (“Forest Service”) was involved in efforts to control or

manage a specific wildfire (the August Complex Fire) within that national forest. Am.

Compl. at 3. On or about September 8, 2020, the wildfire spread from the national forest

to Plaintiffs’ land, damaging Plaintiffs’ property. Id.; see also Def. Mot. at 2.

Plaintiffs essentially allege that the Forest Service’s mismanagement of the wildfire

caused the fire to spread to, and thus damage, Plaintiffs’ property. In particular, the

Johnsons allege the Forest Service “deliberately acted to engage in” the fire within the

national forest but “deferred full suppression strategies” in that area. Am. Compl. at 3

(emphasis omitted). Plaintiffs specifically refer to the Forest Service’s “Incident Action

Plans [from] September 5, 2020[,] through September 8, 2020.” Id. Plaintiffs allege that,

whether “intentional or not,” the Forest Service’s deferral of “full suppression strategies”

is what “directly caused” the fire “to escap[e]” the forest and to spread to their property.

Id. (emphasis omitted).

What is notable is what the amended complaint does not allege. The amended

complaint does not specify: (1) the “full suppression strategies” Plaintiffs believe the

government should have pursued; (2) what actions the Forest Service took to combat the

fire; or (3) how those actions caused the fire to spread to Plaintiffs’ property, if at all.

In response to the government’s motion to dismiss, Plaintiffs attached a copy of

the Forest Service’s Incident Action Plans for relevant dates, Pl. Resp. at 8–19 (the

September 5, 2020, report, and related notices), 20–25 (the September 6, 2020, report), 26–

38 (the September 7, 2020, report), 39–45 (the September 8, 2020, report). In these

documents, Plaintiffs marked various sections, including highlighting an operation to

“[c]onduct tactical burns” and other references to “burnout operations” (collectively

referred to below as “tactical burns”). Pl. Resp. at 12–13, 15, 18–19, 25, 33–34, 37–38. The

reports also include fire behavior forecasts that describe substantial risks of rapid fire

movement. Pl. Resp. at 10–11, 22–23, 28–29, 41–42. But the amended complaint contains

no factual allegations tying any of the information reported in the Incident Action Plans

to the Plaintiffs’ alleged property damage.3

not its legal conclusions — are true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[F]or the

purposes of a motion to dismiss we must take all of the factual allegations in the complaint as

true[.]” (emphasis added)).

3 As explained infra, Plaintiffs’ response to the motion to dismiss — even if viewed as

supplementing the amended complaint — suffers from the same deficiencies as the amended

complaint: Plaintiffs never attempt to tie, with factual allegations, any government actions (i.e.,

even those in the Incident Action Plans) to Plaintiffs’ alleged damage. Indeed, Plaintiffs admit

3

Plaintiffs claim the fire destroyed $273,670 worth of lumber on the land and

separately destroyed $165,000 of personal property. Am. Compl. at 5. They also assert

that the fire damage reduced the real property’s market value by $2,000,000 based on

their research and efforts to sell the property. Id. Plaintiffs seek $2,438,670 in monetary

damages (representing the sum of the alleged damage to timber, personal property, and

real property). Id.

III. JURISDICTION

Pursuant to the Tucker Act, this Court’s primary jurisdictional statute, “[t]he

United States Court of Federal Claims shall have jurisdiction to render judgment upon

any claim against the United States founded . . . upon the Constitution, . . . 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). The Tucker Act thus “provides the

Court of Federal Claims with jurisdiction over [Fifth Amendment] takings claims brought

against the United States.” Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1359

(Fed. Cir. 2013) (quoting John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354

(Fed. Cir. 2006), aff’d, 552 U.S. 130 (2008)). The Court finds that it has jurisdiction to

consider Plaintiffs’ complaint.

IV. STANDARD OF REVIEW

In deciding a motion to dismiss for failure to state a claim pursuant to

RCFC 12(b)(6), the Court views the facts in the light most favorable to the plaintiff and

accepts as true all factual allegations — but not conclusory legal assertions — contained

in the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); see also Am.

Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019). Those facts must yield

a “reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678. A plaintiff may not simply plead “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations

omitted). The Court must dismiss a complaint “when the facts asserted by the claimant

do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.

Cir. 2002).

The Johnsons are proceeding pro se, and this Court generally holds a pro

se plaintiff’s pleadings to “less stringent standards.” Haines v. Kerner, 404 U.S. 519, 520–

21 (1972) (per curiam); see, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). Yet a pro se

they “can not [sic] allege any affirmative act without sounding in tort other than [that the Forest

Service] chose to manage the fire and it escaped their jurisdiction.” Pl. Resp. at 2.

4

plaintiff’s “obligation ‘to provide the grounds of [her] entitle[ment] to relief requires

more than labels and conclusions.’” Arunachalam v. Apple, Inc., 806 F. App’x 977, 981 (Fed.

Cir. 2020) (per curiam) (quoting Twombly, 550 U.S. at 555) (alterations in original) (internal

quotation marks omitted); see also, e.g., Ottah v. Fiat Chrysler, 884 F.3d 1135, 1141 (Fed. Cir.

2018). Thus, to survive the government’s motion to dismiss, the Johnsons’ amended

complaint must allege facts that, when assumed to be true, constitute a viable takings

claim for compensation pursuant to the Fifth Amendment of the United States

Constitution.

V. DISCUSSION

A. Plaintiffs Must Allege Facts Demonstrating an Affirmative Government

Act and Causation to State a Takings Claim

In general, plaintiffs seeking compensation for property damage caused by the

government conceivably may proceed under either a tort or takings claim theory of

liability. 4 Tort claims may be brought only in district court pursuant to the Federal Tort

Claims Act (“FTCA”). 28 U.S.C. § 1346(b)(1). This Court has jurisdiction to decide certain

monetary claims against the government, including contract claims and claims for

compensation pursuant to the Fifth Amendment, but not cases “sounding in tort.” 28

U.S.C. § 1491(a)(1); see also, e.g., Jackson v. United States, 162 Fed. Cl. 282, 302 (2022) (“The

[FTCA] states that ‘the district courts . . . shall have exclusive jurisdiction of civil actions

on claims against the United States’ sounding in tort.” (alteration in original) (quoting 28

U.S.C. § 1346(b)(1))). 5

Where a plaintiff seeks compensation for property damage allegedly arising from

flooding or fire — whether via a tort or takings claim — obtaining relief is not simple

given the nature of the facts a plaintiff must plead (and then prove) to support each theory

4Plaintiffs contend that the nature and history of their land grant constitutes a contract obligating

the government to take no action that infringes on Plaintiffs’ property rights in this land. Am.

Compl. at 2–3. To assert the existence of a contract with the government, however, a plaintiff

must allege facts demonstrating a “mutual intent to contract including an offer and acceptance,

consideration, and a Government representative who had actual authority to bind the

Government.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997); see D&N

Bank v. United States, 331 F.3d 1374, 1378 (Fed. Cir. 2003). Plaintiffs’ alleged land grant “to have

and to hold . . . forever” certain land, Am. Compl. at 7–8 (emphasis omitted), does not equate to

a contract — certainly not one obligating the government to indemnify Plaintiffs for damages

resulting from fires that begin in the adjacent national forest. The Court therefore focuses its

analysis on Plaintiffs’ takings claim.

5 See also 28 U.S.C. §§ 2671-80 (Tort Claims Procedure).

5

of recovery. 6 For example, plaintiffs attempting to recover damages in tort have often

failed to do so because of the FTCA’s discretionary-function exception. 7 St. Bernard Par.

Gov’t v. United States, 887 F.3d 1354, 1362 & n.6 (Fed. Cir. 2018) (discussing In re Katrina

Canal Breaches Litig., 696 F.3d 436, 449–454 (5th Cir. 2012), and noting that the Fifth Circuit

held that “the government was immune from liability under the discretionary-function

exception of the FTCA”); Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998) (applying

the discretionary-function exception in part because government standards and

procedures “do not tell firefighters how to fight the fire”); Hardscrabble Ranch, L.L.C. v.

United States, 840 F.3d 1216, 1222–23 (10th Cir. 2016) (concluding that government

procedures did not tell the Forest Service how to suppress fires and the discretionary-

function exception protected decisions like firefighting strategy). 8

6 Such complexity is precisely why this Court proposed to refer Plaintiffs to the pro bono program.

See ECF No. 7 (“[P]ursuant to RCFC 9(i), a plaintiff must plead with specificity the property

interest alleged to have been taken. Here, however, Plaintiffs do not meet that pleading burden.

While Plaintiffs generally suggest that the U.S. Forest Service’s actions in managing the wildfire

resulted in damage to their property, Plaintiffs fail to allege with sufficient specificity (1)

what losses they incurred to their property, and (2) how the government is responsible for such

losses.”); ECF No. 8 (pro bono program referral order).

7 “[T]he [FTCA] does not authorize suits against officials for exercising discretionary,

policymaking functions.” Galloway Farms, Inc. v. United States, 834 F.2d 998, 1004 (Fed. Cir. 1987)

(discussing 28 U.S.C. § 2680(a)); see also Am. Council of the Blind v. Mnuchin, 977 F.3d 1, 6 (D.C. Cir.

2020) (“In [FTCA] cases, for example, the ‘discretionary function exception’ to liability is

implicated if the government’s action is ‘susceptible to policy analysis.’” (quoting United States v.

Gaubert, 499 U.S. 315, 325 (1991)).

8See also, e.g., Esquivel v. United States, 21 F.4th 565, 570, 579 (9th Cir. 2021) (affirming the dismissal

of an FTCA claim for the Forest Service’s response to a wildfire); Foster Logging, Inc. v. United

States, 973 F.3d 1152, 1167 (11th Cir. 2020) (affirming the dismissal of an FTCA claim that alleged

the Forest Service was negligent in handling a controlled burn); Hardscrabble Ranch, L.L.C., 840

F.3d at 1217–18, 1222–23 (affirming summary judgment for the Forest Service on an FTCA claim

arising from the Forest Service’s “partial [wildfire] suppression strategy” and “controlled burn”);

Woodward Stuckart, LLC v. United States, 650 F. App’x 380, 381–83 (9th Cir. 2016) (affirming

dismissal of an FTCA claim for Forest Service’s alleged “use” of a wildfire that “escaped” onto

the plaintiffs’ land); Mich. Dep’t of Nat. Res. v. United States, 2012 WL 13028277, at *5–6 (W.D. Mich.

May 29, 2012) (dismissing an FTCA claim against the Forest Service for a prescribed burn); Green

v. United States, 630 F.3d 1245, 1247–48, 1252 (9th Cir. 2011) (reversing dismissal of an FTCA claim

where the Forest Service allegedly failed to warn plaintiffs of a backfire that the Forest Service

started); Juras v. United States, 2011 WL 13223900, at *5 (D.N.M. Oct. 14, 2011) (granting motion to

dismiss an FTCA claim against the Forest Service for its wildfire management); Backfire 2000 v.

United States, 273 F. App’x 661, 662–63 (9th Cir. 2008) (affirming summary judgment for the Forest

Service on an FTCA claim based on backfires the Forest Service started); Miller v. United States,

163 F.3d at 597 (affirming summary judgment in favor of the Forest Service after a wildfire

“escaped” a national forest).

6

In this case, Plaintiffs correctly recognize that this Court lacks jurisdiction to hear

FTCA claims against the government. ECF No. 15 ¶ 2; see also 28 U.S.C. § 1491(a); Hansen

v. United States, 65 Fed. Cl. 76, 79 (2005) (“[T]his court has jurisdiction over taking claims

under the Tucker Act, but not over tort actions.”). Thus, Plaintiffs seek just compensation

pursuant to the Fifth Amendment of the United States Constitution and the Tucker Act,

28 U.S.C. § 1491(a). Am. Compl. at 1; ECF No. 15 ¶ 2. The Fifth Amendment provides

that “private property [shall not] be taken for public use, without just compensation.”

U.S. Const. amend. V. A Fifth Amendment takings claim for just compensation is also

known as one for an “inverse condemnation.” See Cary v. United States, 552 F.3d 1373,

1375–76 (Fed. Cir. 2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005)

(quoting United States v. Clarke, 445 U.S. 253, 257 (1980)); see also Horne v. Dep’t of Agric.,

576 U.S. 350, 357–61 (2015) (holding the Fifth Amendment’s requirement of just

compensation for direct appropriations applies to both personal and real property).

Our appellate court, the United States Court of Appeals for the Federal Circuit,

has addressed takings arising from fires, floods, and similar damaging events allegedly

caused by the government. See, e.g., Cary, 552 F.3d at 1376 (property damage from

wildfire); St. Bernard, 887 F.3d at 1360 (property damage from flooding); Ridge Line, Inc.

v. United States, 346 F.3d 1346, 1355–56 (Fed. Cir. 2003) (property damage from flooding);

Moden, 404 F.3d at 1343 (property damage from environmental contamination).

Similar to difficulties a plaintiff may encounter under the FTCA, takings claims

based on floods and fires present their own challenges. In that regard, a basic principle

of our circuit’s takings jurisprudence is that government inaction cannot give rise to a

Fifth Amendment takings claim; rather, the government may be liable for an invasion of

property only if the invasion results from an affirmative government act. See St. Bernard,

887 F.3d at 1360 (citing cases). In St. Bernard, for example, the Federal Circuit reversed

the trial court’s determination that the government’s “failure to maintain or modify” a

water navigation channel caused flooding that constituted a temporary taking. 887 F.3d

at 1358–59. Instead, the Federal Circuit distinguished between the government’s alleged

failures, on the one hand, id. at 1361–62, and the alleged harms arising from the

government’s construction and operation of infrastructure, on the other, id. at 1362–68.

The Federal Circuit specifically concluded that, “[o]n a takings theory, the government

cannot be liable for failure to act, but only for affirmative acts by the government.” Id. at

1360–62. Accordingly, “[w]hile the theory that the government failed to maintain or

modify a government-constructed project may state a tort claim, it does not state a takings

claim.” Id. at 1360 (emphasis added) (first citing Sanguinetti v. United States, 264 U.S. 146,

149 (1924); and then citing Ridge Line, Inc., 346 F.3d at 1355–56). 9

9 See also Bench Creek Ranch, LLC v. United States, 855 F. App’x 726, 728 (Fed. Cir. 2021) (applying

St. Bernard to affirm the dismissal of a takings claim that stemmed from the government’s alleged

failure to manage wild horses); Bd. of Supervisors of Issaquena Cnty. v. United States, 160 Fed. Cl.

7

St. Bernard and other cases illustrate what government actions may support a Fifth

Amendment takings claim. In St. Bernard, the government’s construction and continued

operation of a navigation channel were “the sole affirmative acts involved” that might

form the basis for a takings claim. 887 F.3d at 1362. Similarly, the Federal Circuit held

that a takings claim may be viable where the government’s construction caused storm

runoff and flooding. Ridge Line, 346 F.3d at 1351–55, 1359 (applying United States v.

Dickinson, 331 U.S. 745 (1947), to consider a government taking of a flowage easement).

More to the point, in TrinCo Investment Co. v. United States, 722 F.3d 1375 (Fed. Cir.

2013), the plaintiff alleged that “the Forest Service intentionally lit fires directly on and

adjacent to TrinCo’s properties in order to reduce unburned timber which might fuel the

Iron Complex fire” — a series of wildfires in June 2008 that burned within the Shasta-

Trinity National Forest. 722 F.3d at 1376–77 (emphasis added). TrinCo sought damages

for a taking. Id. at 1377. The government had argued that “the intentional lighting of

fires by the Forest Service to manage existing wildfires cannot sustain a plausible takings

case because the doctrine of necessity absolves the Government from liability for any

taking or destruction of property in efforts to fight fires.” Id. The trial court agreed,

granting the government’s motion to dismiss, but the Federal Circuit reversed, rejecting

“the position that any act undertaken by the Government in connection with fighting a

fire is covered by the necessity defense.” Id. at 1380. Instead, the Federal Circuit

concluded that the “necessity defense is just what it says it is: a defense” — one that “has

always required a showing of imminent danger.” Id. The Federal Circuit held that the

government’s invocation of the necessity defense raised factual questions — “to learn in

discovery why the Plaintiff’s property had to be sacrificed, as opposed to other property,

including other portions of the National Forest itself.” Id. The Federal Circuit thus

implicitly concluded that the government’s intentional burning of private property to

save government property may constitute a taking. Id. at 1378–80 (remanding the case

for discovery regarding whether the government had “take[n] a private citizen’s property

without compensation”).

Accordingly, to state a takings claim sufficient to survive an RCFC 12(b)(6) motion

to dismiss, plaintiffs must allege facts that constitute an affirmative government act —

such as the lighting of a fire. But while factual allegations demonstrating an affirmative

government act are necessary, they are not sufficient to state a takings claim. Rather,

plaintiffs must also allege facts that, when assumed to be true, satisfy yet additional

conditions for an inverse condemnation. In particular, this Court applies a two-prong

test the Federal Circuit adopted in Ridge Line, Inc. v. United States, 346 F.3d at 1355–57,

300, 303–05 (2022) (holding that the government’s alleged “failure to construct” flood mitigation

measures could not serve as the premise for a viable takings claim), appeal docketed, No. 22-2026

(Fed. Cir. docketed July 15, 2022).

8

characterized as “[1] causation and [2] appropriation.” Cary, 552 F.3d at 1376

(summarizing Ridge Line).

For causation, a plaintiff must allege facts showing that “the government

intend[ed] to invade a protected property interest or [that] the asserted invasion [was]

the direct, natural, or probable result of an authorized activity and not the incidental or

consequential injury inflicted by the action.” Cary, 552 F.3d at 1376 (alterations in

original) (quoting Ridge Line, 346 F.3d at 1355). The Federal Circuit understands “direct,

natural, or probable” in the context of Ridge Line causation to mean that the alleged

property loss was “foreseeable from the authorized government act.” Moden, 404 F.3d at

1343 (citing cases). To demonstrate an appropriation sufficient to state a claim, a

plaintiff’s complaint must allege that, “[e]ven where the effects of the government action

are predictable, . . . an invasion must appropriate a benefit to the government at the

expense of the property owner, or at least preempt the owner[’]s right to enjoy his

property for an extended period of time.” Ridge Line, 346 F.3d at 1356. The appropriation

prong considers: (1) whether the alleged taking served a public interest; and (2) whether

the government’s interference with property rights was so substantial and frequent as to

constitute a taking. See Cary, 552 F.3d at 1380–81 (applying Ridge Line, 346 F.3d at 1357).

Applying Ridge Line and Moden, the Federal Circuit in Cary considered the

government’s takings liability for fire suppression policies. 10 552 F.3d at 1375–77. In Cary,

the plaintiffs alleged that: (1) the government’s fire suppression policies allowed a

buildup of flammable vegetation; and (2) the vegetation buildup caused a property-

damaging wildfire. Id. In response to the government’s motion for judgment on the

pleadings, the trial court entered judgment for the government, dismissing the case, Cary

v. United States, 79 Fed. Cl. 145, 148 (2007). See 552 F.3d at 1376. The Federal Circuit

affirmed: the plaintiffs needed to, but did not, allege facts that “plausibly show” that their

injury was “the likely, foreseeable result of” the government’s actions. Id. at 1377–80. In

the series of events the plaintiffs alleged, something other than the government’s

firefighting started the wildfire that damaged the plaintiffs’ property. Id. at 1379. Fire

suppression may have increased the risks of subsequent wildfires, but a specific wildfire

and the resulting destruction were not likely (i.e., foreseeable) consequences of the fire

suppression policy at issue. Id. at 1377–79 (citing Moden, 404 F.3d at 1343). “Taking a

calculated risk, or even increasing a risk of a detrimental result, does not equate to making

the detrimental result direct, natural, or probable.” 552 F.3d at 1378. A takings claim

10The Federal Circuit in Cary “[a]ccept[ed] arguendo that a policy is an action.” 552 F.3d at 1377

& n.* (“The ‘policy’ is not one authorized action but a set of intertwined, authorized actions.

[Plaintiffs] cherry-pick parts of the Forest Service policy which they argue have increased the risk

of wildfire[.]”).

9

requires a continuous “chain of causation” that connects an alleged government action to

an alleged injury, and the plaintiffs’ allegations could not avoid breaks in such a chain.

Id. at 1379–80. According to the Federal Circuit, “[t]he key difference between the flood

cases and the instant controversy [in Cary] is that the policy of suppressing fires did not

set the [fire] in motion as the dams did the floods.” 552 F.3d at 1378.

Thus, this Court must assess whether Plaintiffs have sufficiently alleged facts

demonstrating: (1) an affirmative government act for which Plaintiffs seek to hold the

government liable; and (2) the causal connection between the government’s act and

Plaintiffs’ damages, consistent with Ridge Line, Moden, and Cary. 11

B. Plaintiffs Fail to State a Takings Claim Because They Do Not Allege Facts

Demonstrating an Affirmative Government Act or Causation

The government argues that the Johnsons were required to, but did not, allege

facts demonstrating that an affirmative government act caused their property damage.

Def. Mot. at 4–7; Def. Rep. at 1–2. This Court agrees.

Under the most fair and plain reading of the amended complaint, Plaintiffs assert

liability based on inaction — i.e., the government’s failure to protect Plaintiffs’ property.

Am. Compl. at 3 (alleging that the “US Forest Service Fire Managers deferred full

suppression strategies in their jurisdiction” and that “[the fire] escaped their jurisdiction”

(emphasis omitted)). Aside from generally criticizing the government’s firefighting

strategy, Plaintiffs simply do not allege specific affirmative government acts necessary to

support a takings claim. 12

11The government’s motion does not address the appropriation prong, and thus this Court does

not consider that issue further.

12 Plaintiffs allege that the August Complex Fire is the fire that damaged their property. Am.

Compl. at 3 (“The US Forest Service Fire Managers deliberately acted to engage in the August

Complex Fire using Management Strategies . . . . The US Forest Service August Complex

Managed Fire escaped . . . and trespassed on the Plaintiffs’ private inholding as a direct result[.]”

(emphasis omitted)). Plaintiffs do not allege the government started the August Complex Fire.

Indeed, that fire was ignited by natural causes. In that regard, the Court takes judicial notice that,

as a matter of public record, the August Complex Fire was caused by lightning. See August

Complex Restoration, United States Department of Agriculture, https://www.fs.usda.gov/detail

/mendocino/home/?cid=FSEPRD860382 (last visited Nov. 8, 2022) (“The fires within the August

Complex were ignited by lightning[.]”). This is a fact that Plaintiffs appear to admit. See Pl. Resp.

at 2 (“the Natural Lightning Fire”).

10

Plaintiffs attempt to transmogrify the Forest Service’s inaction into an affirmative

act. Am. Compl. at 3. (“The US Forest Service Fire Managers deliberately acted to engage

in the . . . fire[.]”); Pl. Resp. at 3 (“The Defendant made a choice to manage fire in their

jurisdiction [as] opposed to full suppression of the fire. That affirmative act on [the] part

of The United States led to the taking of the Plaintiff’s property and [the] direct result of

the damages[.]”). This attempted reframing does not change that the gravamen of

Plaintiffs’ amended complaint is that the government failed to stop the fire, which, in

turn, caused the damage to Plaintiffs’ property. Simply labeling inaction as an affirmative

act does not save an otherwise deficient takings claim. See, e.g., Kinney v. United States,

161 Fed. Cl. 644, 649 (2022) (“The fact that plaintiff labels the cause of action as a takings

claim, and includes, among his other allegations, a reference to taking property without

just compensation, does not transform his claim for monetary damages arising from . . .

intentional torts, into a Fifth Amendment takings claim.” (internal quotes omitted)

(alteration in original)); Ivaldy v. United States, 655 F. App’x 813, 815 (Fed. Cir. 2016)

(affirming a lack of jurisdiction on the basis of the “true nature” of the plaintiff’s claim

when the plaintiff “attempts to couch his allegations in terms of a Fifth Amendment

taking”).

The only government actions to which Plaintiffs (vaguely) point are tactical burns

the government allegedly initiated as part of its firefighting strategy. In that regard,

Plaintiffs provided the Court with numerous documents, including government reports,

as attachments to their response opposing the government’s motion to dismiss. Pl. Resp.

at 5–47. In those government reports, Plaintiffs highlighted various references to tactical

burns. See Pl. Resp. at 12, 13, 15, 18, 19, 25, 33, 34, 37, 38.

To the extent that Plaintiffs reference tactical burns as part of their overall critique

of the government’s fire control strategy, the government’s failure to engage in

alternative or additional fire control measures does not amount to an affirmative act

sufficient to satisfy St. Bernard. See 887 F.3d at 1362 (government’s failure to maintain and

modify storm infrastructure cannot be the basis for a takings claim). Indeed, Plaintiffs’

general criticism of the government’s response to the forest fire resembles the failure to

maintain or modify flood infrastructure at issue in St. Bernard, 887 F.3d at 1360–62, as well

as the alleged failure to mitigate flooding at issue in Board of Supervisors of Issaquena

County, 160 Fed. Cl. at 304–06.

Moreover, even assuming that Plaintiffs’ amended complaint could be read as

alleging some affirmative government act in the form of tactical burns — i.e., acts similar

to those at issue in TrinCo Investment Co. — the amended complaint alleges no

nonconclusory facts that meet the Federal Circuit’s causation standard as articulated in

Ridge Line, Moden, and Cary. Plaintiffs make no effort to connect the tactical burns — i.e.,

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with factual allegations demonstrating causation — to Plaintiffs’ property damage.

Plaintiffs simply do not allege that the tactical burns caused or otherwise contributed to

the alleged damage to their property. Indeed, with regard to causation, the Johnsons’

case is far closer to Cary — affirming judgment on the pleadings for the government —

than to TrinCo, which reversed a complaint’s dismissal. And, unlike in TrinCo, the

Plaintiffs here never allege facts — nonconclusory or otherwise — demonstrating, for

example, that their land would not have been damaged but for the government’s alleged

action. See TrinCo Inv. Co., 722 F.3d at 1377 (“TrinCo’s complaint alleges that the [wildfire]

would not have burned any of its land.”). 13

The bottom line is that Plaintiffs’ amended complaint alleges no facts

demonstrating causation, including how, if at all, any of the government’s tactical burns

mentioned in the referenced attachments impacted the fire’s spread to Plaintiffs’

property. Plaintiffs allege no facts demonstrating that any government action had the

“direct, natural, or probable result” of harming Plaintiffs’ property. See Cary, 552 F.3d at

1379–80 (rejecting a takings claim resulting from a wildfire because the plaintiff had not

alleged the damage was a direct, natural, or probable outcome of the government’s

actions). Even if the documented fire behavior forecasts suggested a high risk of fire

movement, Pl. Resp. at 10–11, 22–23, 28–29, 41–42, the amended complaint does not allege

facts showing how any of the government’s actions, in the context of that risk, rendered

damage to Plaintiffs’ property a “likely result.” Cary, 552 F.3d at 1377 (“Moden clarified

the meaning of ‘direct, natural, or probable result’ to mean that the injury must be the

likely result of the act, not that the act was the likely cause of the injury, the latter allowing

for incidental injuries resulting from a true cause-in-fact to be considered a taking. . . .

Therefore, to survive judgment on the pleadings, the landowners must plausibly show

that the consumption of their property by fire was the likely, foreseeable result of Forest

Service action.” (quoting Moden, 404 F.3d at 1343)).

The fact that the government may have initiated tactical burns somewhere is

plainly insufficient. Indeed, the amended complaint all but admits that the timing and

extent of Plaintiffs’ property damage might have been the same regardless of the tactical

burns because the damage occurred as the result of the government’s inaction (and not

the tactical burns). See Am. Compl. at 3 (alleging that the Incident Action Plans showed

the Forest Service “deferred full suppression” and thereby caused the fire to “escape[]”

the forest, but not mentioning tactical burns (emphasis omitted)). Again, to the extent

13 The Court emphasizes that it reaches the causation issue only under a very generous reading

of the Plaintiffs’ vague references to tactical burns contained in the various attachments Plaintiffs

filed with the Court. That is, even if such documentation serves as factual allegations

demonstrating a government act, Plaintiffs must still allege facts that satisfy the causation

standard. The amended complaint, however, fails to do so.

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Plaintiffs allege that the government’s failure to act allowed the fire to spread to Plaintiffs’

property, that would mean that government inaction, and not tactical burns, were the

cause of Plaintiffs’ damage. The Court emphasizes once again that its discussion of

causation is necessary only under the most generous reading of the amended complaint

and the Plaintiffs’ response to the government’s motion to dismiss (including Plaintiffs’

attachments).

In granting the government’s motion to dismiss in this case, this Court does not

demand that plaintiffs — pro se or otherwise — use magic words in a complaint, but

neither may the Court redraft a complaint to state a viable takings claim when basic

factual elements are omitted. Here, Plaintiffs have not provided the Court with factual

allegations to identify tactical burns or anything else as constituting (1) an affirmative

government act with (2) a causal link to Plaintiffs’ injury. Plaintiffs therefore fail to state

a claim pursuant to RCFC 12(b)(6). See Twombly, 550 U.S. at 570 (plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face”). 14

VI. CONCLUSION

For the reasons explained above, the Court hereby GRANTS the Defendant’s

motion to dismiss. The Clerk shall enter JUDGMENT for the government, dismissing

Plaintiffs’ amended complaint.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

14On January 30, 2023, as the Court was preparing to issue this decision, Plaintiffs filed a motion

for summary judgment that reiterated the core allegations of Plaintiffs’ amended complaint. ECF

No. 18. The Court has reviewed and considered Plaintiffs’ motion for summary judgment, but it

contains no new arguments or facts and, if anything, confirms the Court’s reading of the amended

complaint. See id. at 2–3. Given the Court’s dismissal of this case, the Court will deny the motion

for summary judgment as moot.

13