Petition for Writ of Certiorari — Atlas Corp. v. United States, 111 S. Ct. 46 (1990) (No. 89-1705)

FILED

79-1708 : WAY 3 1990

No.

AQSEPELE SPANIOL, JR.

CLERK

IN THE —

Suprenve Court of the United States

OCTOBER TERM, 1989

ATLAS CORPORATION, KERR-MCGEE CHEMICAL CORPORA-

TION, PATHFINDER MINES CORPORATION, QUIVIRA MIN-

ING COMPANY, UMETCO MINERALS CORPORATION AND

UNION CARBIDE CORPORATION,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETER J. NICKLES *

ELLIOTT SCHULDER

JAY T. SMITH

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Counsel for Petitioners

Kerr-McGee Chemical

Corporation and

Quivira Mining Company

* Counsel of Record

(Additional Counsel Listed Inside Cover)

RAMSAY D. Ports, P.C.

ROBERT J. CYNKAR

SHAW, PITTMAN, POTTS

& TROWBRIDGE

2300 N Street, N.W.

Washingt on, D.C. 20037

(202) 663-8020

Counsel for Petitioner

Atlas Corporation

RIcHARD N. CARPENTER

SUNNY J. NIXON

CARPENTER, CROUT

& OLMSTED

141 East Palace Avenue

P.O. Box 669

Santa Fe, N.M. 87504-0669

(505) 982-4611

Counsel for Petitioner

Pathfinder Mines

Corporation

PETER D. DICKSON

VAN NEss, FELDMAN & CURTIS

A Professional Corporation

1050 Thomas Jefferson St., N.W.

Seventh Floor

Washington, D.C. 20007

(202) 298-1800

Counsel for Petitioners

Umetco Minerals Corporation

and Union Carbide

Corporation

QUESTION PRESENTED

Whether the Claims Court is without jurisdiction over

claims by government contractors seeking contract refor-

mation based on a mutual mistake of fact as to hazards

that were not fully recognized at the time of contracting.

(i)

il

PARTIES TO THE PROCEEDING

The following were parties to the proceeding in the

court of appeals: '

Plaintiffs-appellants: Atlas Corporation, Kerr-McGee

Chemical Corporation, Quivira Mining Company, West-

ern Nuclear, Inc., Atlantic Richfield Company, Umetco

Minerals Corporation, Union Carbide Corporation, Home-

stake Mining Company of California, Inc., and Path-

finder Mines Corporation.

Defendant-appellee: United States of America.

1 Petitioners’ statements pursuant to Sup. Ct. Rule 28.1 are set

forth at App. E, 53a-54a.

TABLE OF CONTENTS

Page

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olin a eucaceteneereucesesevveiseoenecesess 1

OUI ME ED ooo oovesceseeveveecespeseovcoseccsceeicosovees 1

STATEMENT OF THE CASE ..................................-... 2

REASONS FOR GRANTING THE PETITION... 5

a a I 12

APPENDIX A (Court of Appeals’ Opinion) ............. la

APPENDIX B (Claim Court’s Opinion) .............. 27a

APPENDIX C (Judgment of the Court of Appeals). 47a

APPENDIX D (Judgments of the Claims Court)... 48a

APPENDIX E (Statements Pursuant to Sup. Ct. R.

ee Bie ee, Ds STE 53a

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Aluminum Co. of America v. Essex Group, Inc.,

499 F. Supp. 53 (W.D. Pa. 1980) ........0..202000022..... 8

Merritt v. United States, 267 U.S. 338 (1925) _...... 5

National Presto Industries, Inc. v. United States,

338 F.2d 99 (Ct. Cl. 1964), cert. denied, 380

I ae 6-7

R.M. Hollingshead Corp. v. United States, 111 F.

Beem. BHD ECE, CEM GGED an ns- oe cervcccsctscecesncetsserevee 6-7

United States v. Emery, Bird, Thayer Realty Co.,

ree eben 7

United States v. Mitchell, 463 U.S. 206 (1983) ........ 10, 12

STATUTES

I 7 aegis anpdapmacsunbents 1

ee IN a ski cealka tecntecdomacdaaneaounn 9

‘iO OLS Te S.No passim

LEGISLATIVE MATERIALS

S. Rep. No. 101-60, 101st Cong., Ist Sess. (1989)... 10

Oe a, Te CE nists 12

MISCELLANEOUS MATERIALS

Blechman, Agent Orange and the Government Con-

tract Defense: Are Military Manufacturers Im-

mune from Products Liability?,” 36 U. Miami

i Es ee I nn deobsenseceenseoumanen 11

E. Farnsworth, Contracts (1982) ...................----+---- 8

IN THE

Siuywenw Court of the United States

OCTOBER TERM, 1989

No.

ATLAS CORPORATION, KERR-MCGEE CHEMICAL CORPORA-

TION, PATHFINDER MINES CORPORATION, QUIVIRA MIN-

ING COMPANY, UMETCO MINERALS CORPORATION AND

UNION CARBIDE CORPORATION,

. Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals (App. A, 1a-26a)

is reported at 895 F.2d 745. The opinion of the Claims

Court (App. B, 27a-46a) is reported at 15 Cl. Ct. 681.

JURISDICTION

The judgment of the court of appeals (App. C, 47a)

was entered on February 2, 1990. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The Tucker Act, 28 U.S.C. § 1491, as amended, pro-

vides in pertinent part:

2

(a) (1) The United States Claims Court shall have

jurisdiction to render judgment upon any claim

against the United States founded either upon the

Constitution, or any Act of Congress or any regula-

tion of an exe-utive department, or upon any ex-

press or implied contract with the United States, or

for liquidated or unliquidated damages in cases not

sounding in tort....

STATEMENT OF THE CASE

1. Petitioners are uranium and thorium milling com-

panies that, from the 1940’s through the 1960’s, manu-

factured substantial quantities of uranium and thorium

products for national defense purposes pursuant to con-

tracts with the Atomic Energy Commission. App. A,

2a-3a. In order to meet the nation’s urgent defense needs

in the period immediately following the Second World

War, the Government encouraged private companies to

enter the fledgling uranium and thorium milling indus-

try by providing assurances, in the contracts, that the

companies would be able to recover their costs and earn

a reasonable profit from their operations. Jd. at 2a.

The milling of uranium and thorium ore produces a

sand-like residue called “tailings.” Because a typical ton

of domestie ore contains only about two to eight pounds

of uranium and thorium, the residual tailings are ex-

tensive. The tailings are stored in large piles on land

adjacent to the mills. App. A, 3a.

While nearly all of the uranium or thorium is ex-

tracted from the ore during processing, the tailings con-

tinue to emit residual low-level radiation, primarily in

the form of radon gas. Although this fact was known to

the contracting parties, its consequences were not fully

understood at the time the contracts were entered into

and performed. It was not until the late 1979’s that the

long-term potential health hazards associated with mill

tailings and radon emissions were widely recognized. To

alleviate those hazards, costly reclamation measures are

3

required, such as seepage control, regrading the piles and

covering them with clay and soil, and then placing a top

cover consisting of either vegetation or crushed rock.

Petitioners have undertaken such costly measures pur-

suant to requirements imposed by federal and state law,

and also pursuant to petitioners’ general obligation to

conduct their business in a manner that does not endan-

ger the public. App. A, 3a-4a.

2. Petitioners filed suit in the Claims Court, contend-

ing that the Government was legally obligated to bear

financial responsibility for the costs associated with stab-

ilization of the mill tailings that were generated from

the uranium and thorium production under petitioners’

contracts with the Government. In their complaints, peti-

tioners contended that the Government’s obligation arises

from the doctrine of contract reformation for mutual

mistake. Based upon the contracting parties’ understand-

ing that the Government would compensate the compan-

ies for all significant costs associated with their opera-

tions, including the costs of tailings disposal, petitioners

alleged that had the parties recognized the extent of the

potentiai hazards of tailings piles and the costs of sup-

pressing those hazards, the contracts would have ex-

plicitly stated the parties’ intent that the Government

bear such costs.'

3. The Government moved for judgment on the plead-

ings, raising numerous grounds in support of the motion.

Almost three years later, the Claims Court entered judg-

ment on the pleadings in favor of the Government, not on

any of the grounds advanced by the Government, but on

the basis of a novel jurisdictional theory developed by

the court itself. App. B, 27a-46a.

' Petitioners contended in the alternative that the Government is

liable for those costs under an implied-in-fact contract theory

distinct from their reformation claim and under express cost-

reimbursement provisions of the contracts. The courts below dis-

missed these claims and petitioners do not press them here,

4

Rejecting the parties’ arguments as to the “theory of

contract reformation in general,” App. B, 34a, the Claims

Court concluded that ‘‘the matter must be resolved by

reference to the nature of the contractual jurisdiction

this court can exercise pursuant to 28 U.S.C. § 1491,”

Id. The court observed that Section 1491 grants juris-

diction “only where the government has agreed to be

bound,” and that “for reformation to form the predicate

for a money judgment under 28 U.S.C. § 1491, there

must be a prior agreement by the government as to the

provisions involved which can be so given effect.” Jd.

The court therefore reasoned that “|t|he consensual na-

ture of the contract jurisdiction conferred by 28 U.S.C.

$ 1491 requires that the agreement be limited to what

was actually negotiated on the basis of circumstances

then known to the negotiators.” Jd. at 35a.

The Claims Court asserted, without support in the

pleadings or reference to any other source, that

“'k|nowledge” of the potential hazards associated with

the low-level radiation produced by mill tailings was

“beyond the state of the art during the period of time

the contracts involved in these matters were negotiated

and performed.” App. B, 32a. Based on this finding

that the hazards of mill tailings were not only not known

to the parties, but were “not knowable” at the time of

the negotiations, the Court concluded that “no agree-

ment could have been made on this matter which can

now be placed in effect by means of reformation.” J/d.

at 34a-35a.

4. The United States Court of Appeals for the Fed-

eral Circuit affirmed. App. A, la-26a. Although conced-

ing that petitioners had “alleged an appealing fact situa-

tion,” id. at 18a, the court of appeals expressly upheld

the Claims Court’s reasoning on the jurisdictional issue,

stating that, because the mill tailings hazards were ‘not

contemplated by the parties,” it followed that “any con-

tractual claim against the government would arise, not

5

out-of the government’s agreement to be bound, but out

of an obligation that is imposed by law.” Jd. at 19a.

The Federal Circuit therefore concluded:

Regardless of the alleged “justness” of the plain-

tiffs’ claims, the Claims Court has no jurisdiction

over them. The Claims Court’s jurisdiction is lim-

ited, and where the government has not agreed to be

bound, either expressly or impliedly, there is no con-

tractual jurisdiction.

Id.

REASONS FOR GRANTING THE PETITION

This case presents an important question concerning

the jurisdiction of the Claims Court over government

contract cases presenting contract reformation claims.

The court of appeals’ decision effects a fundamental

change in the nature of the Claims Court’s jurisdiction

and insulates the United States from liability in a bur-

geoning class of cases seeking to establish liability for

the substantial costs of alleviating hazards that were not

fully recognized at the time of contracting. Unless re-

versed, the decision below will deprive government con-

tractors of any judicial forum in which to assert such

claims against the United States.

I.

It is well-established that the Tucker Act bestows upon

the Claims Court jurisdiction over contracts that are

either express or implied-in-fact, and not over those

implied-in-law. See Merritt v. United States, 267 US.

338, 341 (1925). That principle is not challenged here.

The courts below, however, have introduced a distinc-

tion between ‘“knowable” and “unknowable” facts—

decreeing that where a mutual mistake concerns an “un-

knowable” fact, there cannot possibly be an “actual”

agreement that could form the basis for Claims Court

jurisdiction and contract reformation. This reasoning

not only is illogical, it finds no support in the Tucker Act

6

or in cases applying principles of contract reformation

generally.

A. The distinction between “knowable” and ‘‘unknow-

able” facts is not found anywhere in the language of the

Tucker Act. Moreover, this distinction, which was

crafted by the Claims Court and adopted by the Federal

Circuit below, signifies an unprecedented and funda-

mental shift in the contractual jurisdiction of the Claims

Court. Petitioners have found no other case that relies

on this distinction, and the Claims Court, the Govern-

ment, and the Federal Circuit have collectively failed to

cite any such case. In fact, the case law reveals that

“knowability” has played no part in the Claims Court’s

previous analysis of its jurisdiction over contract refor-

mation claims or other contract claims.

The Claims Court has repeatedly exercised its juris-

diction to reform contracts based upon a mutual mis-

take of fact where the parties’ error was no more

“knowable” than it is here. A case in point is Nationa!

Presto Industries, Inc. v. United States, 338 F.2d 99

(Ct. Cl. 1964), cert. denied, 380 U.S. 962 (1966), in

which the Court of Claims granted reformation of a con-

tract to permit reimbursement for the cost of an addi-

tional step in the process of manufacturing artillery

shells. In both National Presto and the instant case, the

parties were engaged in developing a new technology: in

both cases, the parties were a “pair of gropers,” id. at

109, unaware of a present condition of the manufactur-

ing process that was not fully understood until later.

In both cases, the agreement to be enforced was an un-

derstanding that the United States would pay the full

costs of production. It is that underlying agreement that

provides a basis for Claims Court jurisdiction, regard-

less of the “knowability” of the parties’ error.’

- Similarly, in R.M. Hollingshead Corp. v. United States, 111 F.

Supp. 285 (Ct. Cl. 1953), neither party knew that it was impossible

to store DDT concentrate in the metal containers required by the

7

Furthermore, the court of appeals’ reliance on the

“knowable”/“unknowable” distinction to effect a narrow-

ing of the Claims Court’s Tucker Act jurisdiction is at

odds with this Court’s admonition in United States v.

Emery, Bird, Thayer Real'y Co., 237 U.S. 28, 32 (1915),

not to draw fine distinctions in construing that statute.

To the contrary, the Tucker Act, which this Court de-

scribed as “the great act of justice embodied in the ju-

risdiction of the Court of Claims,” is not ‘‘to be construed

strictly and read with an adverse eye.” Id.

B. The purported distinction between “knowable” and

“unknowable” facts must be rejected as illogical and

without relevance to determining whether an “actual”

agreement exists that can support Tucker Act jurisdic-

tion. It is simply not necessary that a fact be “know-

able’ in order for the parties to have an agreement that

encompasses that fact. As the Federal Circuit acknowl-

edged, petitioners contend that the contracts at issue

“contained pricing provisions designed so that the private

eompanies could recover their costs, plus a reasonable

profit.” App. A, 2a. This statement expresses the under-

contract without a loss of its clear color, which was also required by

the contract. Nevertheless, the Court of Claims denied the Govern-

ment’s motion to dismiss a complaint seeking payment for the

murky DDT, noting that “[a]t the time the contract here involved

was made, DDT concentrate was a relatively new product.” Jd. at

286.

The Federa) Circuit attempted to distinguish National Presto,

Hollingshead, and other mutual mistake cases by suggesting that

the underlying agreement was enforceable because the “existence”

of the unknown fact was “knowable.” App. A, 8a-10a. Thus, the

court noted that in National Presto, the parties knew that there

might be additional steps in the production process. /d. at 9a. In

the instant case, however, the Federal Circuit has recognized peti-

tioners’ contention that the contracting parties knew the milling

process would produce tailings that would emit low-level radioac-

tivity. Id. at 3a. Accordingly, there is no basis for distinguishing

the instant case from National Presto or other mutual mistake cases

in which the Claims Court exercised its Tucker Act jurisdiction.

8

lying agreement that petitioners seek to enforce—an

agreement to cover their costs. This alleged agreement

is sufficient to confer jurisdiction on the Claims Court,

regardless of whether the potential hazards of tailings

and the associated costs of abating those hazards were

“unknowable” or simply ‘unknown’ to the parties.

C. The reasoning of the courts below on the jurisdic-

tional issue would bar reformation claims against the

United States that the common law would allow against

a private party. Although the courts below asserted that

their reasoning was consonant with the law of reforma-

tion generally, the common law is to the contrary.

To be sure, the common law of mutual mistake will

only reform a contract to reinstate the parties’ actual

agreement.” The common law cases, however, have re-

jected the use of the “knowable” “unknowable” distinc-

tion embraced by both the Claims Court and the Federal

Cireuit. As the court observed in Aluminum Co. of

America v. Essex Group, Inc., 499 F. Supp. 53, 64 (W.D.

Pa. 1980):

The law of mistake has not distinguished between

facts which are unknown but presently knowable,

e.g., Raffles v. Wichelhaus, 2 H&C 906 (1864), and

facts which presently exist but are unknowable, e.g.,

Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919

(1887). Relief has been granted for mistakes of

both kinds.

What the common law recognizes, but the Federal Cir-

cuit ignores, is that parties ignorant of a hazard may

still enter into an agreement that encompasses the un-

foreseen liability. In such a situation there may be an

actual agreement that should be enforceable under prin-

ciples of contract reformation, regardless of whether the

claim is heard in state court, federal district court, or the

Claims Court.

3 See E. Farnsworth, Contracts § 7.5 at 469 (1982).

9

The purported distinction between ‘‘knowable” and “un-

knowable” facts thus has no bearing on the issue of the

Claims Court’s jurisdiction. In determining whether an

agreement existed that can provide a basis for jurisdic-

tion under the Tucker Act (‘or even a basis for contract

reformation at common law), the issue is whether the

plaintiff can produce evidence to substantiate the alleged

agreement. The Federal Circuit’s use of the concept of

“unknowability” has no statutory or common law basis,

needlessly creates different rules for the treatment of the

United States and private parties, and unfairly denies

petitioners and other similarly situated plaintiffs an op-

portunity to establish their claims in court.

Il.

The question presented here is worthy of review be-

cause it concerns the ‘irisdiction of the only court em-

powered to hear petitioners’ contract claims, it involves

claims of substantial value, and it arises in a factual

context of growing societal importance.

A. Denial of jurisdiction means denial of any remedy

to petitioners, because the Claims Court possesses nation-

wide and exclusive jurisdiction with regard to large con-

tract damage claims against the United States. Although

the district courts have concurrent jurisdiction over some

contract claims against the Government, damages may

not exceed $10,000. 28 U.S.C. $ 1846(a) (2). Because

claims seeking reimbursement for the costs of environ-

mental remediation typically involve amounts far in ex-

cess of $10,000, the Claims Court is the only forum in

which petitioners and similarly situated parties may seek

contract reformation and damages from the United

States.

B. This Court has previously granted certiorari in a

case involving construction of the Tucker Act on the

ground that it involved issues of substantial importance

concerning the liability of the United States; the Court

observed that in that case alone the damages claimed

10

might amount to $100 million. See United States v.

Mitchell, 463 U.S. 206, 211 n.7 (1983). The same may

be said of the instant case.

The amount of money at stake in petitioners’ claims

is very substantial. As of the summer of 1989, Kerr-

McGee had expended approximately $36 million for rec-

lamation at a single mill tailings site in Illinois. Depend-

ing on the approach to be taken in further remediation

efforts at the site, the Nuclear Regulatory Commission

has estimated that additional expenditures will range

from $12 to $90 million.‘ Considering that recovery was

sought for expenditures at a total of ten tailings sites in

the cases consolidated before the Claims Court, it is evi-

dent that the decision of the court of appeals will ex-

tinguish claims of enormous value.

C. It is significant that the distinction between ‘“‘know-

able’ and “unknowable” facts has been used to deny

jurisdiction in a case involving contract reformation

based on a mutual mistake as to a hazard that was not

recognized at the time of contracting. Even if this new

jurisdictional principle were limited to factually similar

eases in the future—and there is no reason why it would

be so limited—the principle would still have a recurring

impact on cases of great societal interest.

1. The decision below sets a precedent allowing the

Claims Court to dismiss, on the pleadings, future claims

for contract reformation based on mutual mistake when-

ever the mistake involves a failure of the contracting

parties to recognize a hazard then in existence. Accord-

ing to the court of appeals, a hazard not yet recognized

by society may be deemed “unknowable” to the contract-

ing parties—and as a consequence, it is supposedly im-

possible for the parties to have entered into an agree-

ment that allocates responsibility for the hazard.

4 See S. Rep. No. 101-60, 101st Cong., Ist Sess. 14-15 (1989).

11

The result is a “Catch-22” that bars mutual m/stake

claims based on unrecognized hazards. On the one hand,

in order to seek reformation on the ground of mutual

mistake, a government contractor must allege that the

parties did not fully recognize the hazard at issue. Yet

on the other hand, this very allegation is the basis on

which the Federal Circuit will apparently declare that

the parties’ shared ignorance precludes any possibility

that an agreement existed that might be the basis for

contract reformation.

2. Petitioners’ claims will not be the only ones af-

fected by the decision below. Also at stake are the claims

of other government contractors against the United

States for contract reformation based on mutual mis-

takes as to hazards poorly understood at the time of con-

tracting. In recent years, there has been a considerable

increase in litigation over hazards that were once un-

known. As noted by one commentator,

The Agent Orange controversy is but one of a num-

ber of current cases involving the potential liability

of a government contractor for injuries caused by

the manufacture of a product for the government.

Other disputes center around the domestic use of

herbicides . . . or asbestos. ... [In these cases, at]

the time they entered the contract, the government

and the contractor often possessed little or no infor-

mation indicating that the materials or finished prod-

uct would be hazardous.

Blechman, Agent Orange and the Government Contract

Defense: Are Military Manufacturers Immune from

Products Liability?,” 36 U. Miami L. Rev. 489, 491 n.8

(1982).

Unless overturned, the decision below would extinguish

all claims by government contractors for contract refor-

mation based on the failure to recognize a hazard at the

time of contracting. This result is directly contrary to

the goal of Congress in enacting the Tucker Act, which

12

was to “give the people of the United States what every

civilized nation of the world has already done—the right

to go into the courts to seek redress against the Govern-

ment for their grievances.”” 18 Cong. Rec. 2680 (1887)

(remarks of Rep. Bayne) (quoted in United States v.

Mitchell, 463 U.S. at 213-14).

CONCLUSION

The petition for a writ of certiorari should be granted.

RAMSAY D. Potts, P.C.

ROBERT J. CYNKAR

SHAW, PITTMAN, PoTTS

& TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8020

Counsel for Petitioner

Atlas Corporation

RICHARD N. CARPENTER

SUNNY J. NIXON

CARPENTER, CROUT

& OLMSTED

141 East Palace Avenue

P.O. Box 669

Santa Fe, N.M. 87504-0669

(505) 982-4611

Counsel for Petitioner

Pathfinder Mines

Corporation

May 3, 1999

Respectfully submitted,

PETER J. NICKLES *

ELLIOTT SCHULDER

JAY T. SMITH

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Counsel for Petitioners

Kerr-McGee Chemical

Corporation and

Quivira Mining Company

PETER D. DICKSON

VAN NESS, FELDMAN & CURTIS

A Professional Corporation

1050 Thomas Jefferson St., N.W.

Seventh Floor

Washington, D.C. 20007

(202) 298-1800

Counsel for Petitioners

Umetco Minerals Corporation

and Union Carbide

Corporation

* Counsel of Record

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FEDERAL CIRCUIT

Nos. 89-1205 to 89-1212

ATLAS CORPORATION, KERR-MCGEE CHEMICAL CORPORA-

TION, QUIVIRA MINING COMPANY, WESTERN NUCLEAR,

Inc., ATLANTIC RICHFIELD COMPANY, UMETCO MINER-

ALS CORPORATION and UNION CARBIDE CORPORATION,

HOMESTAKE MINING COMPANY OF CALIFORNIA, INC.,

and PATHFINDER MINES CORPORATION,

Plaintiffs-A ppellants,

V.

THE UNITED STATES,

Defendant-A ppellee.

Feb. 2, 1990

Before MARKEY, Chief Judge, BENNETT, Senior

Circuit Judge,* and NEWMAN, Circuit Judge.

BENNETT, Senior Circuit Judge.

This appeal is from the final judgement of the Claims

Court ‘Merow, J.) granting the government’s motion for

* Due to the recusal of another judge, the author was not assigned

to the panel until after oral arguments in this case. The author has

reviewed the audio tapes of the oral arguments. Counsel were

given the opportunity to object to this procedure in open court,

but did not.

2a

judgment on the pleadings and dismissing the complaints.

15 Cl.Ct. 681 (1988). We affirm.

BACKGROUND

The plaintiffs are corporations, or successors to cor-

porations, which entered into contracts with the govern-

ment for the production of uranium or thorium.

Following the Second World War, uranium production

in the United States was practically nonexistent, and the

military was dependent on foreign sources. In the late —

1940’s, the Atomic Energy Commission (AEC) bezan a

major program to encourage the domestic production of

uranium and alternative sources of atomic energy, such

as thorium. The AEC encouraged private companies to

enter the uranium milling industry by contracting with

them for the production of uranium. The contracts con-

tained pricing provisions designed so that the private

companies could recover their costs, plus a reasonable

profit. In addition, the government funded substantial

research and development efforts to improve uranium

milling technology. and it provided substantial technical

services to the industry. The Atomic Enerey Acts of

1946 and 1954 each provided that the federal eovernment

could be the sole owner of uranium products. Through

statutes and retulations, licensing, administrative over-

sight, and its contracts, the federal government main-

tained pervasive control over all aspects of uranium and

thorium procurement, production, sales and disposal,

starting in the late 1940’s and continuing through the

1950's.

The plaintiffs were awarded uranium production con-

tracts by the AEC or have acquired or merged with the

original contractor and have succeeded to the interests

and obligations of the original contractor. Plaintiff Kerr-

McGee is the successor in interest to thorium production

contracts. For the purposes of this litigation, the parties

have not alleged any significant differences between ura-

3a

nium and thorium production. The contracts between the

government and the plaintiffs were amended several times

and spanned the period from 1950 to 1970. Beginning in

1964, the uranium producers were permitted to sell their

products to private parties without government permis-

sion.

Uranium and thorium milling operations produce a

sand-like residue called “tailings.” Typical domestic ura-

nium ore usually contains only about two to eight pounds

of uranium per ton of ore, so the residual tailings may

be quite extensive. The tailings are ordinarily stored in

large tailings piles, usually located on the land adjacent

to the mills. Tailings from the production of uranium

pursuant to the contracts with the government have been

commingled with the tailings from the production of

uranium for private parties.

While nearly all of the uranium is extracted from the

ore, the tailings continue to emit residual low-level radia-

tion, primarily in the form of radon gas. According to

the appellants, this fact was known to the parties to the

contracts, but its significance was not fully understood

at the time of the contracts. It was not until the late

1970’s that the long-term potential health hazards asso-

ciated with mill tailings and the radon emissions were

widely recognized. To alleviate those hazards, costly

measures are required to stabilize existing tailings piles.

Such measures include seepage control, regrading the

piles and covering them with clay and soil, and revegetat-

ing the piles or covering them with crushed rock.

Because of the potential health hazards associated with

uranium mill tailings, Congress enacted the Uranium

Mill Tailings Radiation Control Act (UMTRCA) Pub.L.

No. 95-604, 92 Stat. 3021 (Nov. 8, 1978), codified at 42

U.S.C. $$ 2022, 2113, 2114, 7901-7942 (1982). Title I

of the Act provides that the federal government has re-

sponsibility for the stabilization and decommissioning of

4a

all inactive mill sites which were not licensed on January

1, 1978. 42 U.S.C. $$ 7912-7919. Title II of the Act

authorizes the fnvironmental Protection Agency to de

velop regulat’*:s for the stabilization and decommission-

ing of mill sites which remained active after January 1,

1978. 42 U.S.C. $$ 2022, 2113. Under title II of the

UMTRCA, the licensees are responsible for complying

with the federal regulations concerning stabilization of

the mill tailings piles, decontamination and decommission-

ine of the mill plants, and reclamation of the plant site.

42 U.S.C. $2113. The EPA and the Nuclear Reeulatory

Commission have issued regulations governing the sta-

bilization of the licensed mill sites. 40 C.F.R. pt. 192

(1988); 10 C.F.R. pts. 40, 150 (1989). In addition, some

states have enacted laws directed to the hazards of radon

gas.

The plaintiffs held licenses on January 1, 1978, for

active facilities. As a result of the UMTRCA and the

regulations issued pursuant to that Act, and also possibly

as a result of the plaintiffs’ recognition of general obliga-

tions to conduct their business in a manner that does not

expose the public to harm, the plaintiffs have undertaken

costly measures to stabilize the tailings piles and to decon-

taminate and reclaim the uranium and thorium mill sites.

In their complaints, the plaintiffs sought recovery of the

costs associated with stabilization of the mill tailings that

were generated from the uranium and thorium produc-

tion under the completed contracts with the covernment.

The plaintiffs based their comylaints on various theo-

ries. All of the plaintiffs soucht reformation of the con-

tracts due to mutual mistake. All of the plaintiffs other

than Atlas alleged breach of express contract. Western

Nuclear, Homestake, and Pathfinder alleged breach of an

implied-in-fact contract. Western Nuclear included alle-

gations of agency and that the UMTRCA is a compens-

able Fifth Amendment taking, violates the equal protec-

tion clause, and is an ex post facto law.

5a

The government moved, pursuant to RUSCC 12(c) and

12(h), for judgment on the pleadings arguing that the

plaintiffs had failed to state a claim for relief. The

Claims Court granted the government’s motion and dis-

missed the complaints, except for Western Nuclear’s equal

protection and ex post facto claims, which it transferred

to the United States District Court in Colorado. All of

the plaintiffs filed appeals. On appeal, Western Nuclear

abandoned its agency claim.

ISSUE

The issue in this appeal is whether the Claims Court

erred in granting judgment on the pleadings and in dis-

missing the plaintiffs’ reformation, breach of express con-

tract, breach of implied-in-fact contract, and taking

claims.

OPINION

We review Claims Court decisions for errors of law

and clearly erroneous findings of fact. Cooper v. United

States, 827 F.2d 762, 763 (Fed.Cir.1987); Milmark

Services, Ine. v. United States, 731 F.2d 855, 857 (Fed.

Cir.1984). Because this case was before the Claims Court

on the government’s motion for judgment on the plead-

ings, each of the well-pled allegations in the complaints

is assumed to be correct, and the court must indulge all

reasonable inferences in favor of the plaintiffs. Scheuer

v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40

L.E£d.2d 90 (1974); Owen v. United States, 851 F.2d

1404, 1407 (Fed.Cir.1988).

I. The Contract Claims

The Claims Court held that the plaintiffs could not

establish reformation or breach claims on the facts pled.

The court referred to its limited contractual jurisdiction

and stated that jurisdiction is conferred only where the

rovernment has agreed to be bound. It observed that it

had no authority to write contracts, or contract clauses,

6a

for the United States by means of reformation where

there has been no agreement, citing American President

Lines, Ltd. v. United States, 821 F.2d 1571, 1582 (Fed.

Cir.1987).

The Claims Court stated that it is undisputed that

there was no agreement between the parties with respect

to the now required tailings stabilization. Because the

existence of the tailings hazard was not knowable at the

time of the contract negotiations, there was no mutual

mistake and no agreement between the parties that could

be placed into effect through reformation. The court ob-

served that only those costs that were knowable and sub-

ject to actual negotiation formed the basis for the fixed

prices that the AEC agreed to pay.

The Claims Court also dismissed the plaintiffs’ breach

claims, holding that because no agreement on the tailings

stabilization was or could have been negotiated, the plain-

tiffs have no breach claims to assert. The court dismissed

Western Nuclear’s implied-in-fact contract claim, stating

that an implied-in-fact contract theory is not a viable

claim in the absence of an agreement that would support

reformation. Moreover, the court held that Western Nu-

clear could not show there was an implied-in-fact tailings

hazard contract unrelated to the negotiated uranium pur-

chase agreements.

A. Reformation

The plaintiffs all seek recovery of the costs of tailings

disposal on the theory of contract reformation. Accord-

ing to the plaintiffs, the parties to the uranium and

thorium contracts made a mutual mistake concerning the

necessary tailings disposal, and that mutual mistake re-

quires equitable reformation of the contracts to provide

that the government will pay for tailings stabilization. In

the Joint Appellants’ Brief, the plaintiffs describe the

mistake: “[T]he parties were mutually mistaken con-

cerning whether the tailings piles posed potential long-

7a

term health hazards and thus whether extensive and

costly mill stabilization and plant decommissioning

measures were necessary to eliminate those potential haz-

ards.” Joint Br. at 23. |

We hold that the plaintiffs’ allegations are insufficient

because they have failed to allege a mistake that can sup-

port reformation.

A part’ seeking to state a claim for reformation of a

contract under the doctrine of mutual mistake must al-

lege four elements:

(1) the parties to the contract were mistaken in

their belief regarding a fact;

(2) that mistaken belief constituted a basic assump-

tion underlying the contract;

(3) the mistake had a material effect on the bar-

gain; and

(4) the contract did not put the risk of the mistake

on the party seeking reformation.

See Restatement (Second) of Contracts $$ 151-152, 155

(1981): National Presto Indus., Inc. v. United States,

338 F.2d 99, 107-09, 167 Ct.Cl. 749 (1964), cert. denied,

380 U.S. 962, 85 S.Ct. 1105, 14 L.Ed.2d 153 (1965).

A “mistake” that can support reformation is a belief

that is not in accord with the facts. Restatement (Sec-

ond) of Contracts § 151. To satisfy this element of a

reformation claim, a plaintiff must allege that he held

an erroneous belief as to an existing fact. If the evist-

ence of a fact is not known to the contracting parties,

they cannot have a belief concerning that fact; therefore,

there can be no “mistake.”

Reformation serves to bring the parties’ written con-

tract in accord with their agreement. Professor Corbin

states:

8a

Reformation is not a proper remedy for the en-

forcement of terms to which the defendant never

assented; it is a remedy the purpose of which is to

make a mistaken writing conform to antecedent ex-

pressions on which the parties agreed. These an-

tecedent expressions of agreement may have been

such as to constitute a valid informal contract, in

which case reformation is merely a step in the en-

forcement of that contract. The written document

was intended to be no more thai the integration in

writing of the terms already agreed upon. In so

far as it differs from those terms it is mistaken and

will be corrected.

3 Corbin on Contracts § 614 at 723 (1960). He empha-

sizes that “a court will not decree reformation unless

it has convincing evidence that the parties expressed

agreement and an intention to be bound in accordance

with the terms that the court is asked to establish and

enforce.” Jd. at 725.

In American President Lines, 82t F.2d 1571, we

stated, ‘The purpose and function of the reformation of

a contract is to make it reflect the true agreement of

the parties on which there was a meeting of the minds.”’

Id. at 1582. In the absence of mistake, fraud, accident,

or illegality, a court cannot change the terms of a con-

tract. Id.

This court cannot reach the equities of the reforma-

tion question. It is clear that reformation can be or-

dered only where there is an agreement to be given effect.

The circumstances alleged by the plaintiffs are such that

there could have been no agreement regarding the tail-

ings costs because the existence of the tailings hazard

was not recognized by the parties. The parties could

not have formed a mutually mistaken belief concerning

a fact whose existenee they could not recognize. There-

fore, there has been no mistake that can support re-

formation.

9a

In the cases where courts have reformed a contract,

the parties recognize the existence of a fact about which

they could negotiate, they mutually form a belief con-

cerning that fact, but their belief is erroneous. In those

cases, the court may reform the contract to bring the

parties’ agreement in accord with the true state of the

facts.

For example, in National Presto, 338 F.2d 99, the

Court of Claims granted reformation of a contract to

permit reimbursement for the cost of an additional step

in a process of manufacturing artillery shells. Before

the parties entered into the contract, they discussed

whether an additional step was needed in which excess

metal was shaved from the shells. Their contract did

not include provision for the equipment for this addi-

tional step, but during the performance of the contract,

it was determined that the additional step was in fact

necessary. The plaintiff was required to obtain addi-

tional equipment. The court permitted reformation of

the contract. Although the parties did not know of the

need for the additional equipment, zd. at 107, they clearly

recognized that the equipment might be needed. They

recognized the existence of a fact on which they could

reach an agreement, and they formed an erroneous be-

lief concerning that fact. Therefore, there was a mu-

tual mistake, and reformation could bring their agree-

ment in accord with the true state of the facts.

Similarly, in R.M. Hollingshead Corp. v. United States,

111 F.Supp. 285, 124 Ct.Cl. 681 (1953), the plaintiff

agreed to sell DDT in metal containers to the govern-

ment under a contract which required the chemical to be

a clear, stable liquid. When the DDT subsequently turned

cloudy, the government refused payment. The Claims

Court denied the government’s motion to dismiss, stat-

ing that when the parties entered into the contract, nei-

ther knew that it was impossible to store DDT in metal

containers without a resulting loss of clear color. The

clear color requirement was part of the government’s

10a

specifications, and the parties considered that fact when

contracting. Their erroneous belief concerning that fact

was their mistake.

Other cases in which courts have permitted reforma-

tion of contracts similarly show that the parties held an

erroneous belief concerning a fact whose existence the

parties recognized and about which they could reach

agreement. See, e.g., Southwest Welding & Mfg. Co. v.

United States, 373 F.2d 982, 179 Ct.Cl. 39 (1967) (the

parties mistakenly believed the price of steel was lower

than it actually was); Walsh v. United States, 102 F.

Supp. 589, 121 Ct.Cl. 546 (1952) (the parties errone-

ously believed the minimum wage rate was a certain

amount, even though it had increased earlier); A/umi-

num Co. of America v. Essex Group, Inc., 499 F.Supp.

53 (W.D.Pa.1980) (the parties erroneously believed that

the Wholesale Price Index would accurately represent

nonlabor production costs for the purpose of a contractual

escalation clause). See also Bowen-McLaughlin-York Co.

v. United States, 813 F.2d 1221 (Fed.Cir.1987) (refor-

mation permitted where the parties erroneously omitted

certain price items that were in existence and could have

been included in the contract). Macke Co. v. United

States, 467 F.2d 1323, 199 Ct.Cl. 552 (1972). does not

show a different rule. The opinion in that case does not

indicate whether a ‘mistake’ was made by the parties.

Rather. the court “interpreted” or “reformed” the con-

tract to conform to the parties’ practical construction.

Id. at 1328.

Appellants argue that the Claims Court’s distinction

between “knowable” and “unknowable” facts has no bear-

ing on whether a plaintiff has properly stated a claim

for relief by reformation. The appellants cite Aluminum

Co. of America in which the district court observed

“!tlhe law of mistake has not distinguished between

facts which are unknown but presently knowable. and

facts which presently exist but are unknowable. Relief

lla

has been granted for mistakes of both kinds.” 499 F.

Supp. at 64 (citations omitted). It is true that even

though the outcome of a fact is unknowable, the parties

can make a mistake concerning that fact. But where

the existence of a fact is unknowable, the parties can-

not have a belief concerning that fact, and they cannot

make a mistake about it. Thus, in the famous case Sher-

wood v. Walker, 66 Mich. 568, 33 N.W. 919 (1887), the

eontract for the sale of a cow was held to be voidable

where the cow was assumed to be barren but later was

discovered to be pregnant. The existence of the fact as

to whether the cow was barren or fertile was known to

the parties even if the outcome of that fact was un-

known.

In this case, the plaintiffs’ allegations of their “mis-

take” do not show that they held an erroneous belief

concerning a fact whose existence the parties could recog-

nize and about which they could negotiate agreement.

The statements the plaintiffs make in their complaints

and briefs demonstrate that the parties could not have

contemplated the potential tailings hazard when they en-

tered into the contracts. Therefore, they could not have

reached an agreement on the now-required tailings sta-

bilization, and they could not have held a mutually mis-

taken belief concerning the abatement of the tailings

hazard.

The plaintiffs state, “Thus, as alleged in the com-

plaints, when appellants’ contracts were negotiated and

performed the parties did not fully appreciate the ex-

tent and consequences of the potential health hazards

posed by the uranium and thorium mill tailings, or that

such hazards could not be abated absent extensive and

costly remedial measures.” Joint Br. at 12. They state,

“It was not until the late 1970’s that the long-term po-

tential health hazards associated with mill tailings be-

came widely recognized.” Joint Br. at 13.

12a

Atlas states in its supplemental brief, ““The full record

put before the Claims Court by Atlas underscores the

eritical fact that neither the Government nor Atlas ap-

preciated the extent or consequences of the potential

health hazard posed by this radiation.” Atlas Br. at 5.

Quivira’s complaint states, “These costs were not and

could not have been anticipated at the time the Contract

was entered into... .” Quivira Complaint ' 29. Western

Nuclear alleged that “|wlhen the original Contracts and

modifications thereto were entered into between Western

and the Government acting through the AEC, the then

existing technology did not recognize any reason to per-

form any Reclamation or Decommissioning on mill tail-

ings or mills.” Western Nuclear Complaint § 29. At-

lantie Richfield stated that “neither party considered

radiation levels in the produced wastes to represent a

potential hazard or matter of concern” (Atlantic Rich-

field Complaint 14) and that “!the reclamation] costs

were not and could not have been anticipated at the

time the 1951 or the 1959 Contracts were entered into.

.’ Atlantie Richfield Complaint "49. Umetco alleged

that “the parties to those Contracts did not contemplate

that any extraordinary efforts to stabilize or manage the

tailings would be necessary.”” Umetco Complaint " 27.

They also allege that “the state of scientific knowledge

at the times the Union Carbide Contracts were entered

into and performed had not permitted adequate under-

standing of the effects of uranium mill tailings.’”’ Umetco

Complaint { 30. Homestake, also, alleged that “‘|the rec-

lamation| costs were not and could not have been an-

ticipated at the time the Contracts which are the sub-

ject of this Complaint, or any of the modifications or

amendments thereto, were executed.” Homestake Com-

plaint "27. Pathfinder stated that ‘|the reclamation]

costs were not and could not have been anticipated at

the time the Contracts were executed.” Pathfinder Com-

plaint © 20.

13a

The plaintiffs’ own statements and allegations demon-

strate that the hazard associated with tailings was not,

and indeed could not have been, within the contempla-

tion of the parties when they entered into the contracts.

Their statements clearly show the correctness of the

Claims Court’s ruling that the existence of the hazard

was not knowable at the time of the negotiations. The

Claims Court correctly stated that because it was not

possible for the hazard to have been known to the par-

ties, no agreement could have been reached on this mat-

ter which can now be put into effect through reforma-

tion. If the existence of the hazard was beyond the con-

templation of the parties, they could form no belief con-

cerning that fact. There can be no “mutual mistake”

to support reformation here.

B. Breach of Express Contract

All of the plaintiffs other than Atlas asserted breach

of express contract claims. In their complaints, they al-

lege that the government has breached the uranium and

thorium contracts by not paying for the cost of tailings

stabilization and mill decommissioning. The parties al-

leged that the contracts were designed to reimburse the

milling companies for all reasonable costs associated with

the production of uranium and thorium concentrate.

Also, the parties alleged that tailings disposal was. a

reasonable cost, as shown by certain contract provisions

allowing reimbursement for tailings disposal. The latter

allegation is based on the “stretch-out” agreements be-

tween the government and the parties under which the

uranium deliveries were ‘stretched out” past the con-

tract termination date to account for decreased demand

for the concentrate. As the plaintiffs have alleged in

their complaints, the price of the concentrate for the

“stretch-out” period was to be determined based on

past costs incurred by the producer, including the past

costs of tailings disposal.

l4a

The Claims Court did not err in granting judgment

on the pleadings dismissing the plaintiffs’ breach of ex-

press contract claims. The plaintiffs have failed to allege

any contract provision that the government breached in

not paying the costs of tailings stabilization. The com-

plaints admit that the contracts were fixed price con-

tracts, although the price was determined by obtaining

or forecasting the producer’s costs for the contract period

plus a reasonable profit. Quivira Complaint ‘8, 12;

Western Nuclear Complaint {{ 14, 21; Atlantic Richfield

Complaint {{ 11, 15; Umetco Complaint { 18, 21; Home-

stake Complaint { 8, 12; Pathfinder Complaint {/{ 8, 11.

The plaintiffs have not alleged that the government has

not paid the prices agreed to in the contracts.

More importantly, the plaintiffs alleging a breach of

contract admitted in their complaints that the contracts

contained no provision concerning tailings stabilization

costs. Kerr-McGee Complaint %) 24, 25; Quivira Com-

plaint { 13; Western Nuclear Complaint { 21; Atlantic

Richfield Complaint 16; Umeteco Complaint § 27. See

also Homestake Complaint ‘27, 35; Pathfinder Com-

plaint {'{ 20, 28.

The plaintiffs rely on Alvin, Lid. v. United States

Postal Service, 816 F.2d 1562 (Fed.Cir.1987), and ar-

gue that the absence of contract clauses specifically re-

ferring to tailings stabilization costs does not justify dis-

missal of their breach claims. Their reliance is mis-

placed. In Alvin, the court construed a contract provision

regarding the payment of general real estate taxes. The

Alvin plaintiffs relied on that specific contract term to

argue that the Postal Service was required to pay ‘“‘spec-

ial assessments” that replaced the general real estate

taxes. While that form of tax may have been unforeseen

at the time the A/vin plaintiffs entered into the contracts

with the government, the contracts included a specific

provision that could be construed to cover the new taxes.

In the present case, the plaintiffs have pointed to no

l5a

provision that can be construed to require payment of

stabilization costs.

The plaintiffs’ arguments that certain contract pro-

visions did require reimbursement of tailings costs and

the costs of restoration and clean-up of sites and facili-

ties are unpersuasive. As discussed above, that reim-

bursement provision was in the ‘‘stretch-out”” agreements,

in which the price of uranium concentrate for 1969-70

deliveries was to be determined based on costs incurred

between 1963 and 1968. The plaintiffs have not alleged

that the government has failed to pay the price agreed

to in the stretch-out agreements based on the prior costs.

They have admitted that the stretch-out agreements did

not anticipate the stabilization or reclamation costs in-

curred after 1968, or specify which party would be re-

sponsible for those costs. Quivira Complaint { 17; At-

lantie Richfield Complaint { 26, 27. See also Homestake

Complaint {{ 17, 18, 27; Pathfinder Complaint {{ 13, 20.

Finally, the plaintiffs argue that they are entitled to

pursue alternative theories of recovery. They assert that

it is improper to deem allegations that a contract does

not specifically address tailings stabilization costs as

equivalent to a concession that there is no basis for a

breach claim. While plaintiffs can plead alternative

bases of recovery, they must still plead sufficiently to

support their claims. In this case, the plaintiffs have

pointed to no specific provision that was breached.

Therefore, it is not improper to look to the plaintiffs’ ad-

missions of what the contracts do not contain.

Western Nuclear’s breach of contract claim is based

on another theory. According to Western Nuclear, the

government unilaterally modified the uranium contracts

with the passage of the UMTRCA and the adoption of

regulations requiring tailings stabilization. The contract

allegedly provided for an “equitable adjustment” in the

price after such unilateral modification by the govern-

ment. The alleged provision is not in evidence. How-

l6a

ever, if it was the standard clause, it provided aajust-

ment for changes by the contracting officer not relevant

of course to these changes by Act of Congress. In any

event Western Nuclear’s breach claim on this theory is

barred by the Sovereign Acts Doctrine. Under that doc-

trine, the government is not contractually liable for acts

taken in its sovereign capacity for the public good. As

the Supreme Court explained in Horowitz v. United

States, 267 U.S. 458, 461, 45 S.Ct. 344, 344, 69 L.Ed.

736 (1925) (quoting Jones v. United States, 1 Ct.Cl.

383, 384 (18651):

The two characters which the government possesses

as a contractor and as a sovereign cannot be thus

fused; nor can the United States while sued in the

one character be made liable in damages for their

acts done in the other. Whatever acts the govern-

ment may do, be they legislative or executive, so

long as they be public and general, cannot be deemed

specially to alter, modify, obstruct or violate the par-

ticular contracts into which it enters with private

persons. ...

(Emphasis added.) See also Tony Downs Foods Co. v.

United States, 530 F.2d 367, 370-71, 209 Ct.Cl. 31

(1976) (sovereign acts doctrine barred price relief where

excess performance costs were the result of an Executive

order terminating a price freeze). The UMTRCA and

its regulations are sovereign acts which the government

has undertaken for the public good. Those acts are not a

contractual modification of the agreement with Western

Nuclear and cannot alone serve as the basis for a breach

claim.

C. Breach of Implied-In-Fact Contract

Western Nuclear, Homestake, and Pathfinder have as-

serted breach of implied-in-fact contract claims. West-

ern Nuclear’s theory is that it was the intent of the

parties that if the government ‘in its capacity as a

ee

17a

sovereign” performed a sovereign act and therefore made

performance more difficult or expensive, the government

would bear the added costs. Homestake’s and Path-

finder’s theory is that it was the intent of the parties

that the plaintiffs would be compensated for all costs of

production, including all costs associated with mill tail-

ings.

The Claims Court did not err in dismissing the implied-

in-fact contract claims. As explained in Porter v. United

States, 496 F.2d 588, 204 Ct.Cl. 355 (1974). cert. denied,

420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 761 (1975),

an implied-in-fact contract is one ‘founded upon a meet-

ing of minds, which, although not embodied in an ex-

press contract, is inferred, as a-fact, from conduct of

the parties showing, in the light of the surrounding cir-

cumstances, their tacit understanding.” Jd. at 590, quot-

ing Baltimore & O.R.R. v. United States, 261 U.S. 592,

597, 43 S.Ct. 425, 426, 67 L.Ed. 816 (1923). As fully

set out above, the parties have admitted that the exten-

sive tailings stabilization which is now required was not

even contemplated by the parties at the time of the con-

tracts. Therefore, there can have been no negotiation

and “meeting of the minds” that could create an implied-

in-fact contract respecting the cost of the stabilization.

In addition, the plaintiffs cannot in this case argue

that the cost of tailings stabilization was to be borne by

the government in view of the “intent” of the contracts

to reimburse all costs. The existence of an express con-

tract precludes the existence of an implied contract deal-

ing with the same subject, unless the implied contract is

entirely unrelated to the express contract. JTT Fed. Sup-

port Services v. United States, 531 F.2d 522, 528 n. 12,

209 Ct.Cl. 157 (1976). As fully set forth above, the plain-

tiffs have admitted that although the contract prices were

determined by considering the plaintiffs’ costs, the prices

were in fact set by the contracts. The stabilization costs

are not “entirely unrelated’”’ to the costs included in the

18a

contract prices. Therefore, there can be no implied agree-

ment to pay costs over and above those prices. Unlike

the complaint in W.R. Cooper Gen. Contractor, Inc. v.

United States, 843 F.2d 1362 (Fed.Cir.1988), the plain-

tiffs’ allegations and admissions in their complaints do

not even raise the possibility of the existence of an im-

plied-in-fact contract.

Finally, the plaintiffs cannot argue that increased

obligations respecting tailings disposal create an implied

agreement to reimburse the additional costs. The require-

ment of tailings stablization and mill decommissioning

was not an exercise of the government’s contractual pow-

ers, but of its powers as sovereign to act for the public

good. The plaintiffs’ contract claims seeking to impose

liability for this sovereign act are barred by the Sovereign

Acts Doctrine. Cf. Connolly v. Pension Benefit Guar.

Corp., 475 U.S. 211, 225, 106 S.Ct. 1018, 1026, 89 L.Ed.2d

166 (1986): Owen v. City of Indenendence, 445 U.S. 622,

645 n. 28, 100 S.Ct. 1398, 1412-13, 63 L.Ed.2d 673

(1980); Horowitz v. United States, 267 U.S. at 461, 45

S.Ct. at 344; Hedstrom Lumber Co. v. United States, 7

Cl.Ct. 16, 25-29 (1984).

D. The Claims Court’s Jurisdictional Reasoning

The Claims Court relied on its limited contractual juris-

diction under 28 U.S.C. $1491 in resolving the issues

raised by the government’s motion for judgment on the

pleadings respecting the plaintiffs’ contract claims. 15

Cl.Ct. 681, 686. The Claims Court stated that its con-

tractual jurisdiction is conferred only when the vovern-

ment has agreed to be bound. Aetna Cas. & Sur. Co. ».

United States, 655 F.2d 1047, 1059, 228 Ct.Cl. 146

(1981). An express or implied-in-fact contract is re-

quired: the Claims Court has no jurisdiction over an im-

plied in law contract. See Porter v. United States, 496

F.2d at 590 n. 5.

The plaintiffs have alleced an appealing fact situation.

According to the plaintiffs, the government induced them

19a

to enter the fledgling uranium industry, apparently as-

suring them of profits for many years. As required by

the government, the plaintiffs sold much of their entire

uranium output exclusively to the government. Years

later, after the contracts were completed, it was deter-

mined that the tailings produced in the milling operations

were potentially dangerous, and the plaintiffs were forced

to stabilize them at their own expense. The plaintiffs now

seek to impose an obligation on the government to reim-

burse those tailings costs. As discussed above, the tailings

hazard was not contemplated by the parties, and the

plaintiffs have alleged no contract provision requiring the

government to pay the stabilization costs. Thus, any con-

tractual claim against the government would arise, not

out of the government’s agreement to be bound, but out

of an obligation that is imposed by law. Regardless of the

alleged “justness” of the plaintiffs’ claims, the Claims

Court has no jurisdiction over them. The Claims Court’s

jurisdiction is limited, and where the government has not

agreed to be bound, either expressly or impliedly, there is

no contractual jurisdiction.

Moreover, the plaintiffs’ cireumstances are not as com-

pelling as they might appear. The plaintiffs exercised

their business judgment when they willingly entered into

the uranium procurement contracts with the government

without including escalation clauses. The contracts ap-

parently provided them a guaranteed demand for their

production at a profit for years. The plaintiffs have not

alleged that they are protected by a price adjustment pro-

vision in the contracts or that the contracts were price

redeterminable. See Bowen-McLaughlin-York, 813 F.2d

at 1223. Thus, when unforeseen costs arose, their busi-

ness judgment turned out to be wrong. Their breach and

reformation claims cannot permit them to renegotiate

their contracts in order to take into account matters not

considered when the contracts were negotiated.

20a *

The merits of the plaintiffs’ contract claims need not

be reached. Their complaints fail to state redressable

claims.

II. Western Nuclear’s Taking Claim

The Claims Court also dismissed Western Nuclear’s

taking claim. Western Nuclear alleged that the UMTRCA

requires it to spend very large sums of money for recla-

mation and decommissioning of the tailings and its mill

upon termination of its license. Western Nuclear alleged

that the amount of money it will be required to spend

is greater than the value of the mill, and that such a

requirement is an unconstitutional taking under the Fifth

Amendment.

The Claims Court held that Western Nuclear cannot

set forth a valid taking claim in the circumstances

pleaded. The Claims Court stated that there has been no

physical invasion of the property, and Western Nuclear

has not alleged that it has been deprived of all beneficial

use of its property. The court held that the government

may regulate the use of land or a business and may

require the owner to spend additional revenue for health

and safety reasons without the regulation being found a

taking requiring compensation. Individuals hold their

property subject to the limitation that they do not use

it in danverous or noxious wavs. The Claims Court also

observed that the government has implemented similar

reculations designed to protect the public health and

safety, such as the Clean Air Act, 42 U.S.C. §§ 7401-

7642 (1982). According to the Claims Court, Western

Nuclear’s taking theory would require compensation for

those forced to comply with the national standards on air

pollutants.

We hold that the Claims Court correctly dismissed

Western Nuclear’s taking claim. On the circumstances

alleved. Western Nuclear cannot show that a compensable

taking has occurred.

2la

The power of a court to order compensation for a

government action is limited. As the Supreme Court has

stated,

The Fifth Amendment, which requires just com-

pensation where private property is taken for public

use, undertakes to redistribute certain economic

losses inflicted by public improvements so that they

will fall upon the public rather than wholly upon

those who happen to lie in the path of the project.

It does not undertake, however, to socialize all losses,

but those only which result from a taking of prop-

erty. If damages from any other cause are to be

absorbed by the public, they must be assumed by act

of Congress and may not be awarded by the courts

merely by implication from the constitutional pro-

vision.

United States v. Willow Run Power Co., 324 U.S. 499,

502. 65 S.Ct. 761, 764, 89 L.Ed. 1101 (1945). Thus, the

Fifth Amendment requires compensation for losses due

to government action only where there has been a ‘“tak-

ing” of “property” for public use.

In this case, Western Nuclear has not alleged a physical

taking of any of its property. Its complaint alleges only

that it will be required to spend sums of money for recla-

mation of -tailings and mill decommissioning. Requiring

money to be spent is not a taking of property. See

United States v. Sperry Corp., USS. , 110 S.Ct.

387, 395 n. 9, 107 L.Ed.2d 290 (1989) (deduction of a

tribunal user fee from settlement award not a physical

occupation requiring just compensation). Western Nu-

clear belatedly asserts on appeal that the UMTRCA will

require it to transfer to the government the uranium tail-

ings, the property affected by the mill site, and the tail-

ings disposal area and that this constitutes a permanent

occupation of its property. We do not reach these argu-

ments for the complaint that is at issue does not contain

these allegations nor were they addressed in the Claims

22a

Court decision now appealed. Thus, on the facts as al-

leged, there has as yet been no physical taking.

The Supreme Court has not developed a set formula

for determining whether a taking of property has oc-

curred. Rather, that determination is made by engaging

in ad hoe, factual inquiries into the circumstances of each

particular case. Connolly v. Pension Benefit Guar. Corp.,

475 U.S. at 224, 106 S.Ct. at 1025.- Three factors have

‘narticular significance”: (1) the character of the gov-

ernment action; (2) the economic impact of the regula-

tion on the plaintiff; and (3) the extent to which the

regulation has interfered with distinct investment-backed

expectations. Id. at 224-25, 106 S.Ct. at 1025-26. Sce also

Chang v. United States, 859 F.2d 898, 895 (Fed.Cir.

1988). It is not necessary in every case to undertake an

evidentiary hearing on the issue of whether a taking has

occurred. Summary dismissal of a taking claim is appro-

priate where the circumstances alleged in the complaint,

even if taken as true and all reasonable inferences are

drawn in favor of the plaintiff, cannot establish that a

taking has occurred. See Chang (motion to dismiss for

failure to state a claim) ; Allied-General Nuclear Services

v. United States, 889 F.2d 1572 (Fed.Cir.) (summary

judgment), cert. denied, USS. , 109 S.Ct. 61,

102 L.Ed.2d 39 (1988). in this case, examination of the

circumstances alleged by Western Nuclear in light of the

three factors set forth by the Supreme Court shows that

the Claims Court correctly dismissed Western Nuclear’s

taking claim.

1. The Nature of the Government Action. The Su-

preme Court has recoenized that the nature of the gov-

ernment’s action is “critical” in the determination of

whether a taking has occurred. Keystone Bituminous

Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488, 107 S.Ct.

1232, 1243, 94 L.Ed.2d 472 (1987). In this case, the

government action is the regulatory requirement to spend

money for tailings stabilization and mill decommissioning

23a

as a condition of license termination. 42 U.S.C. § 2113.

That action does not invade or permanently appropriate

Western Nuclear’s property for public use. Rather, the

UMTRCA safeguards the public against potential hazards

of tailings radiation and radon gas emissions by requir-

ing the owners and operators of uranium mills to sta-

bilize the tailings and mill site to minimize the health

hazards. See 42 U.S.C. § 7901.

Congress set forth explicit findings regarding the need

for tailings stabilization and control, and it made clear its

Specific purpose in enacting the UMTRCA. Congress

found that “the protection of the public health. safety,

and welfare and the regulation of interstate commerce

require that every reasonable effort be made to provide

for the stabilization, disposal, and control in a safe and

environmentally sound manner of such tailings in order

to prevent or minimize radon diffusion into the environ-

ment and... other environmental hazards... .” Jd. The

government action complained of is the result of Con-

gress’ exercise of its power in order to protect the health,

safety, and welfare of the public.

In Connolly the Supreme Court considered a statute

that required employers withdrawing from a pension plan

to pay into the plan an additional amount corresponding

to the employer’s proportionate share of the plan’s un-

funded vested benefits. The Court held that the require-

ment to pay an amount greater than that which the em-

ployer was contractually obligated to pay was not a tak-

ing. The Court stated that “[{t]his interference with the

property rights of an employer arises from a public pro-

gram that adjusts the benefits and burdens of economic

life to promote the common good and, under our cases,

does not constitute a taking requiring Government com-

pensation.” Jd. 475 U.S. at 225, 106 S.Ct. at 1026. See

also Radioptics, Ine. v. United States, 621 F.2d 1113.

1127, 228 Ct.Cl. 594 (1980) (“where the purpose of a

regulation which causes interference with property rights

24a

is to prevent injury to the public welfare as opposed to

merely bestowing upon the public a non-essential benefit,

compensation under the fifth amendment is not re-

quired.”’).

The uranium tailings were created by Western Nu-

clear’s production of uranium. Congress has determined

that those tailings are potentially hazardous to the public

health. Pursuant to Congress’ power to protect the gen-

eral health, safety, and welfare. Congress has now re-

quired Western Nuclear to stabilize the tailings it has

created. Such government action does not constitute a

“taking.” See Keystone, 480 U.S. at 491-92, 107 S.Ct. at

1245-46 (“Long ago it was recognized that ‘all property

in this country is held under the implied obligation that

the owner’s use of it shall not be injurious to the com-

munity.’ and the Takings Clause did not transform that

principle to one that requires compensation whenever the

tate asserts its power to enforce it.”) (footnote and cita-

tions omitted) (quoting Mugler v. Kansas, 123 U.S. 623,

665. 8 S.Ct. 273, 299, 31 L.Ed. 205 (1887)). See also

Allied-General, 839 F.2d at 1576 (“We think the basic

rule that is dispositive here is that as against reasonable

state regulation, no one has a legally protected right to

use property in a manner that is injurious to the safety

of the general public.”).

2. The Economic Impact of the UMTRCA. Even

thouch the UMTRCA will require Western Nuclear to

spend large amounts of money to stabilize the uranium

tailings and Western Nuclear may be completely deprived

of the use of that money, the financial burden of the Act

eannot be considered in a vacuum. See Keystone, 480

U.S. at 497, 107 S.Ct. at 1248: Penn Central Transp. Co.

». New York City, 438 U.S. 104, 130-31, 98 S.Ct. 2646,

2662, 57 L.Ed.2d 631 (1978). In this case, Western Nu-

clear has alleged that the tailings stabilization will cost

more than its mill is worth. However, comparison of the

cost of tailings stabilization to the value of its mill does

25a

not show the economic impact of the regulations, other

than merely suggesting that the cost is a large amount.

Western Nuclear has not claimed that the government

has interfered with its production of uranium or has

made the use of its mill unprofitable. The allegations

Western Nuclear has made do not show any economic

impact that would support a determination that a “tak-

ing” has occurred.

3. Interference With Investment-Backed Expectations.

Finally, Western Nuclear’s allegations do not show any

interference with its investment-backed expectations as

would support a “taking’’ determination. From the outset

of the uranium procurement program, the nuclear indus-

try has been highly regulated, as the plaintiffs admit.

“Those who do business in the regulated field cannot ob-

ject if the legislative scheme is buttressed by subsequent

amendments to achieve the legislative end.”’ Connolly, 475

U.S. at 227, 106 S.Ct. at 1027, quoting FHA v. The

Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 146,

3 L.Ed.2d 132 (1958). The only “expectation” that

Western Nuclear could have under the circumstances it

has alleged is that it expected it would not have to spend

its own money to remediate health and environmental

hazards created by its production of uranium. Such an

expectation cannot be a reasonable commercial expecta-

tion.

The nature of the government action, as well as the

circumstances alleged by Western Nuclear, clearly show

that the UMTRCA is not a taking that requires compen-

sation. The Claims Court correctly dismissed Western

Nuclear’s taking claim.

CONCLUSION

We have considered the government’s alternative argu-

ments for affirming the Claims Court. Except as incor-

porated in the above discussion, they are not persuasive.

26a

In enacting the UMTRCA, Congress chose to place the

great burden of stabilizing the uranium and thorium

tailings on the producers rather than on the public fisc

after January 1, 1978. While this may force the plain-

tiffs to spend large amounts of money, they cannot show

that their contracts with the government may be re-

formed or that the government has breached the contracts.

In addition, the UMTRCA does not constitute a taking

that requires compensation. For these reasons, the deci-

sion of the Claims Court is affirmed.

COSTS

Each side shall bear its own costs on this appeal.

AFFIRMED.

27a

APPENDIX B

UNITED STATES CLAIMS COURT

Nos. 281-83C, 143-84C, 144-84C, 565-84C, 576-84C,

579-84C, 580-84C and 581-84C

ATLAS CORPORATION, KERR-MCGEE CHEMICAL CORPORA-

TION, QUIVIRA MINING COMPANY, WESTERN NUCLEAR,

INc., ATLANTIC RICHFIELD COMPANY, UMETCO MINER-

ALS CORPORATION and UNION CARBIDE CORPORATION,

HOMESTAKE MINING COMPANY OF CALIFORNIA, INC.,

PATHFINDER MINES CORPORATION

¥.

THE UNITED STATES

Oct. 31, 1988

OPINION

MEROW, Judge:

Plaintiffs are corporations, or successors to corpora-

tions, which participated in the contractual uranium pro-

curement program of the then Atomic Energy Commis-

sion (AEC). This program commenced in the 1940’s and

ended in 1970. As a result of recent scientific understand-

ing as to the hazards of low level radiation, waste resi-

dues of the uranium production process, known as mill

tailings, must now be stabilized at considerable expense.

28a

In this litigation, plaintiffs seek to recover this expense

> from the United States.

In each case defendant moves, pursuant to RUSCC

12(c) and 12(h) (2), for judgment on the pleadings. It

is asserted that plaintiffs failed to state a claim for re-

lief. Each plaintiff has filed a brief in opposition to the

government’s motion and defendant has responded. Con-

solidated oral argument has been held.

As this matter comes before the court on a motion for

judgment on the pleadings, the allegations in the com-

plaints are considered to be correct. Scheuer v. Rhodes,

416 U.S. 232, 236, 94 S.Ct. 1688, 1686, 40 L.Ed.2d 90

(1974). These allegations must, however, be examined in

the relevant historical context and, to this end, in resolv-

ing the issues raised, the court may also consider certain

material outside the pleadings such as official documents,

matters of general public record and historical publica-

tions. Hohri vv. United States, 586 F.Supp. 769, 773

(D.D.C.1984), aff'd, 847 F.2d 779 (Fed.Cir.19&88). See

McNamara Construction, Ltd. v. United States, 206 Ct.Cl.

1, 5, 509 F.2a 1166, 1168 (1975).

The AFC’s contractual uranium procurement program

involved in the instant claims spawned considerable prior

litigation in the United States Court of Claims and the

resulting reported decisions and findings of fact set forth

relevant official documents and historical context. See

Gay v. United States, 174 Ct.Cl. 420, 356 F.2d 516, cert.

denied, 385 U.S. 898, 87 S.Ct. 202. 17 L.Ed.2d 130

(1966): Industrial Uranium Co. v. United States, 180

Ct.Cl. 50, 376 F.2d 868 (1967).

Backqround

Starting in the late 1940’s and proceeding through the

1950’s, the United States government was involved in

the development of the domestic uranium processing in-

dustry. The government entered into contracts with vari-

ous private companies for the production of uranium con-

29a

centrate and thorium through the AEC. The AEC was

succeeded by both the Nuclear Regulatory Commission

(NRC) and the Department of Energy (DOE). The

uranium production process produces waste residues

known as mill tailings which emit a low level of radia-

tion into the environment, mainly in the form of Radon

222, which is a radioactive gas. At most production fa-

cilities, i.e., “mills,” the producers have deposited the tail-

ings in large ‘‘tailings piles” in areas near to the mills.

The tailings are now recognized to pose other potential

environmental hazards.

The plaintiffs in these cases were either awarded a

production contract by the AEC or have acquired or

merged with the original contractor and have succeeded

to the interests and obligations under the original con-

tracts and subsequent modifications. In the case of the

Kerr-McGee Chemical Corporation, the plaintiff is the

successor in interest to thorium nitrite production con-

tracts, the performance of which also created mill tail-

ings with radon emissions. No significant differences be-

tween thorium or uranium production has been raised in

this matter.

As set forth in the pleadings and described in the

above-cited decisions of the Court of Claims, it is undis-

puted that in the 1950’s the AEC conducted an aggressive

uranium development program. The AEC policy is de-

scribed in Findings 11, 13, 45 in Gay v. United States,

174 Ct.Cl. at 440-41, 468, 356 F.2d 516, which summarize

the AEC’s Domestic Uranium Circulars, as then published

in the Federal Register, as follows:

11. Beginning in 1948, the AEC formulated its

program for development of domestic sources of ura-

nium, and its announced policy was to stimulate

private industry to engage in wide-spread prospect-

ing, exploration and development of uranium ore

reserves, and, since the United States was to be the

sole purchaser of uranium, to give adequate guaran-

30a

tees as to price and period of purchase in order that

private industry could finance and operate uranium

mines and mills.

In repeated public announcements, the AEC made

plain its policy to limit its direct purchase of ura-

nium ores, and to have uranium mills privately

owned and operated, with raw material procurement

by the AEC to be principally in the form of uranium

concentrates sold by the mills to the AEC under nego-

tiated written contracts.

* * * *

13. The AEC considered and rejected early in the

formulation of its domestic uranium program the

establishment of a uniform price at which it would

purchase uranium concentrate from the mills. It

could not arrive at a uniform price because it was

impossible to forecast operating costs and deprecia-

tion schedules for different milling operations.

Consequently, the AEC determined and announced

publicly that all uranium concentrate purchases

would involve individually negotiated contracts for

the construction and operation of privately owned

mills, with the contracts providing for purchase of

the mill concentrates, the price to be arrived at by

taking into account the ore cost and the estimated

milline cost, including plant amortization and profit.

* * * *

45. The terms of all uranium concentrate or mill

contracts were individually negotiuted between AEC

and the various private companies who owned and

operated the mills. It was necessary to investigate

and establish that sufficient reserves of uranium ore

of adequate grade were available to sustain miling

operations for an adequate period of time, that such

available ores were amenable to economical metal-

lurgical processing, that adequate design had been

a a |

3la

prepared for the mill, that the proposed mill operator

had management ability and financial capacity, and

that an acceptable price to the AEC could be reached.

The contract price for uranium concentrate varied

from contract to contract and was negotiated on the

basis of consideration of such factors as the “ore

cost,” determined by application of the Circular 5

price schedule to both captive and custom ores, the

estimated milling costs, which varied depending upon

the size of the mill and the metallurgical process re-

quired for the particular ore, amortization of the

cost of the mill in relation to the life of the uranium

concentrate contract, and a reasonable profit to the

mill owner, arrived at by consideration of capital

investment and related factors.

* * * *

Accordingly, it is not disputed in this matter that the

AEC uranium purchase contracts were individually neco-

tiated with the producers with the fixed price per pound

of uranium concentrate that the AEC would pay deter-

mined, for the contract periods involved, on the basis of

the ore cost, the estimated milling costs, plant amortiza-

tion over the contract period and a reasonable profit.

In their submissions, the parties differ as to whether

these negotiated contracts, pursuant to the AEC circulars,

were “fixed-price” (as the government asserts) or “cost-

plus-profit” (as plaintiffs assert). The historical record

makes clear that the AEC’s published policy was to arrive

at a fixed-price per pound for the concentrate delivered,

which price was, in turn, developed by obtaining or fore-

casting the producer’s costs for the contract period plus

a reasonable profit, and dividing these by the concentrate

quantity covered. In these respect, both parties are par-

tially correct in their asserted contract labels.

The purchase program involved was originally to ex-

pire in 1962, but was stretched out to 1970 while a com-

mercial market for uranium concentrate was developed.

32a

No government purchases subsequent to 1970 are involved

in this matter. With the advent of production for com-

mercial concentrate sales, the waste residue or tailings so

generated have been commingled with those resulting

from production under the prior AEC contracts.

It is undisputed that none of the AEC contracts in-

volved in this matter contains any express provision as-

signing responsibility for the decommissioning and de-

contamination of the facilities after final delivery of the

concentrate, or for reclamation or cleanup activities at the

site, or for stabilization and reclamation of the tailings

piles.

Knowledge of the hazardous nature of low level radia-

tion such as produced by mill tailings was beyond the

state of the art during the period of time the contracts

involved in these matters were negotiated and performed.

It was only in the late 1970’s that it became widely rec-

ognized that radon emanating from uranium and thorium

mill tailings posed a long-term potential health hazard.

Because of the potential environmental and _ health

hazards, Congress enacted the Uranium Mill Tailings

Radiation Control Act (UMTRCA), Pub.L. No. 95-604,

92 Stat. 3021 (Nov. 8, 1978), codified at 42 U.S.C. § 7901,

et seg. Under Title I of the Act, the federal government

has responsibility for the stabilization and decommission-

ing of all inactive mill sites which were not licensed on

January 1, 1978. See, generally, 42 U.S.C. $$ 7912-7919.

Title II of the UMTRCA authorizes the development

of regulatory requirements for the stabilization and de-

commissioning of mill sites which remained active after

January 1, 1978. See, generally, 42 U.S.C. $§ 2022, 2113.

Under Title II, the licensee is responsible for complying

with federal requirements regarding stabilization of the

tailings piles, decontamination and decommissioning of

the plants, and reclamation of the plant site and its sur-

rounding land. See 42 U.S.C. § 21183.

33a

Congress. directed the Environmental Protection

Agency (EPA) to establish general health and safety

- standards for radiological hazards associated with mill

tailings (42 U.S.C. § 2022(b)(1)). The EPA has issued

final standards governing actively licensed milling and

disposal sites, 40 C.F.R.-$ 192 (1983), and the NRC has

issued regulations incorporating the EPA guidelines (10

C.F.R. §§ 40 and 150 (1985)). These matters are dis-

cussed in detail in American Min. Congress v. Thomas,

772 F.2d 617 (10th Cir.1985), cert. denied, 476 U.S.

1158, 106 S.Ct. 2275-76, 90 L.Ed.2d 718 (1986) (petition

for review of EPA standards for the cleanup and dis-

posal of uranium mill tailings originating from desig-

nated inactive mill sites) and American Min. Congress

v. Thomas, 772 F.2d 640 (10th Cir.1985), cert. denied,

476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 718 (1986)

(challenge to EPA standards for active mill tailings

sites).

Many facilities covered by Title II do not contain tail-

ings related to the old AEC contracts. However, the

plaintiffs in the instant cases heid licenses on January 1,

1978 for active facilities which did contain tailings relat-

ing to the government contracts, which are now com-

mingled with tailings produced under subsequent com-

mercial nuclear contracts. As such, plaintiffs assert they

have expended and will expend considerable sums in con-

nection with obviating the hazards associated with the

tailings generated from uranium concentrate sales to the

AEC. Recovery of these costs is sought.

Discussion

The main theory on which plaintiffs seek to recover the

cost of eliminating the environmental hazards associated

with their mill tailings is reformation of the AEC ura-

nium purchase contracts on the basis of an asserted

mutual mistake of fact. Plaintiffs claim that both par-

ties to the AEC uranium purchase contracts were mis-

34a

taken as to the hazardous nature of mill tailings and, had

this hazard been then known, the costs now required to

ameliorate the situation would have been incorporated, in

some way, in the transactions.

The parties have devoted substantial argument to the

theory of contract reformation in general, but it is con-

cluded that the matter must be resolved by reference to

the nature of the contractual jurisdiction this court can

exercise pursuant to 28 U.S.C. § 1491.

As has been held numerous times with respect to

claims based upon contracts implied by law, 28 U.S.C.

§ 1491 does not confer jurisdiction in a situation where,

between private parties, an agreement can be imposed;

rather, jurisdiction to render a judgment against the

United States is conferred only where the government has

agreed to be bound. Aetna Casualty and Surety Co. v.

United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047, 1059

(1981). Either an express or an implied-in-fact contract

is required. See W.R. Cooper General Contractor, Inc. v.

United States, 843 F.2d 1362 (Fed.Cir.1988). Similarly,

for reformation to form the predicate for a money judg-

ment under 28 U.S.C. § 1491, there must be a prior

agreement by the government as to the provisions involved

which can be so given effect. The Claims Court has no

authority to write contracts, or contract clauses, for the

United States by means of reformation. American Presi-

dent Lines, Ltd. v. United States, 821 F.2d 1571, 1582

(Fed.Cir.1987).

In the circumstances presented with respect to the ura-

nium purchase contracts, it is undisputed that there ex-

ists no agreement between the parties with respect to the

now required elimination of mill tailings hazards. There

was no mutual mistake, as the existence of the hazard

was not knowable at the time of the negotiations. Be-

cause it was not possible for the hazard to have been

known to the parties when contracting, no agreement

could have been made on this matter which can now be

35a

placed into effect by means of reformation. The con-

sensual nature of the contract jurisdiction conferred by

28 U.S.C. $ 1491 requires that the agreement be limited

to what was actually negotiated on the basis of the cir-

cumstances then known to the negotiators. Even if it

could now be ascertained what the negotiators would have

agreed to, had future events been known, this would not

constitute the contract actually negotiated. In interpreta-

tion issues, “the language of a contract must be afforded

the meaning derived from the contract by a reasonably

intelligent person acquainted with the contemporary cir-

cumstances.” Firestone Tire & Rubber Co. v. United

States, 195 Ct.Cl. 21, 30, 444 F.2d 547, 551 (1971). See

Alvin, Ltd. v. U.S. Postal Service, 816 F.2d 1562, 1565

(Fed.Cirv.1987); City of Oxnard v. United States, 851

F.2d 344, 347 (Fed.Cir.1988); Deloro Smeiting and Re-

fining Co. v. United States, 161 Ct.Cl. 489, 497, 317 F.2d

382, 387 (1963).'

The “contemporary circumstances” involved with re-

spect to the uranium purchase contracts precluded any

actual agreement with respect to adding costs to obviate

a hazard whose existence was not then known or know-

able. Only those costs (incurred or estimated) which

were then knowab!e and subject to actual negotiation

1 Similarly, the standard for holding a party responsible for

contract damages is premised upon foreseeability at the time of

contracting. Northern Helex Co. v. United States, 207 Ct.Cl. 862,

877, 524 F.2d 707, 714 (1975), cert. denied, 429 U.S. 866, 97 S.Ct.

176, 50 L.Ed.2d 146 (1976). A hazard that was not knowable to

the parties when contracting could not be foreseeable. No reason

exists to depart from this general contracting principle when con-

sidering reformation. The agreement actually reached in the con-

temporaneous circumstances is controlling. See also Glopak Corp. v.

United States, 851 F.2d 334 (Fed.Cir.1988) (unconscionability must

be determined at the time the contract was entered into); Brubrad

Co. v. U.S. Postal Service, 404 F.Supp. 691 (E.D.N.Y.1975), aff'd,

538 F.2d.308 (2d Cir.), cert. denied, 429 U.S. 834, 97 S.Ct. 99, 50

L.Ed.2d 99 (1976) (reformation on the basis of subsequent events

denied).

36a

formed the basis for the fixed prices the AEC agreed to

pay, per pound of uranium concentrate delivered, as was

explained in the published AEC policy set out, supra.*

In Bowen-McLaughlin-York Co. v. United States, 813

F.2d 1221 (Fed.Cir. 1987), incurred costs were mistak-

enly omnitted in determining a fixed price and reforma-

tion was granted. In the instant matter, plaintiffs can-

not plead that any then knowable relevant cost was mis-

takenly omitted from negotiations for the fixed uranium

concentrate prices AEC paid, and no valid basis for re-

formation has been shown.

Plaintiffs argue, however, that reformation is sup-

ported by National Presto Industries, Inc. v. United

States, 167 Ct.Cl. 749, 338 F.2d 99 (1964), cert. denied,

380 U.S. 962, 85 S.Ct. 1105, 14 L.Ed.2d 153 (1965).

However, in the unique facts of that case, the mutual

mistake on which recovery was premised involved the

need for certain turning equipment which was in exis-

tence, had been the subject of actual negotiations, and

was knowable such that a consensual agreement support-

ing reformation under 28 U.S.C. § 1491 was an available

remedy. That is not the case here.

Accordingly, it is concluded that, upon the facts

pleaded as considered in their context, plaintiffs can in

no way establish a claim for reformation of their AEC

uranium purchase contracts to add provisions providing

compensation for the subsequent costs involved in remov-

ing the hazards of mill tailings.*

- An agreement to pay any cost forever into the future would

not have been sanctioned by the published AEC policy which was

premised upon determining a fixed price for concentrate delivered

during the contract period. Moreover, any such agreement would

raise substantial authority questions. See California-Pacific Utili-

ties Co. v. United States, 194 Ct.Cl. 703 (1971).

3 Moreover, to add provisions to reflect an agreement to pay the

costs now known to be required to eliminate the mill tailings haz-

ards would not have been a simple undertaking. The AEC’s pub-

37a

Plaintiffs, with the exception of Atlas Corporation,

also argue that the costs of eliminating the tailings haz-

ards may be recovered on a breach of contract theory.

This approach necessarily assumes that removal of the

subsequently discovered tailings hazards is a part of the

uranium purchase contracts. As it has been concluded

that no such agreement could have been negotiated, so

that reformation is not possible, it follows that plaintiffs

have no breach of contract claims to assert. They have

been paid the negotiated prices for the uranium concen-

trate delivered and the contracts, absent adding cleanup

and reclamation provisions regarding mill tailings by

reformation, call for no additional monetary relief.'

lished contracting policy was to negotiate a fixed price to be paid

per pound of uranium concentrate delivered. If the need for subse-

quent environmental cleanup costs had been knowable and if the

parties had determined that they would be negotiateu, the question

would have arisen as whether to include the cost as a part of the

price paid for each pound of uranium concentrate, or whether a sepa-

rate provision was required. Usually, advance payments are not

made. See 31 U.S.C. § 3324. While the AEC undoubtedly had broad

authority to contract for uranium concentrate, the published param-

eters for the program did not indicate that payments, other than

for delivered concentrate, were contemplated. If the costs were in-

corporated as a part of the fixed price paid for delivered uranium,

any agreement would, presumably, have had to provide assurances

that some portion of the price paid by AEC would be segregated

and set aside for this subsequent environmental cleanup obligation.

Perhaps a reserve fund would be required, calling for investment

decisions. Some consideration as to the possibility that a successor

corporation(s) would become involved would be needed. Plaintiffs

have, however, set forth no such “antecedent expressions on which

the parties agreed.” Sperry Rand Corp. v. United States, 201 Ct.Cl.

169, 179, 475 F.2d 1168, 1174 (1973).

4 On the pleaded facts, no AEC (or successor agency) contracting

officer has, under the authority of the uranium purchase contracts

involved, issued any order(s) requiring removal of the subsequently

recognized tailings hazards. The obligation to undertake this ac-

tivity arises from «he provisions of the UMTRCA. Given the ap-

parent extent of the tailings undertakings plaintiffs indicate are

now required by UMTRCA or otherwise, even if the AEC uranium

38a

Western Nuclear also argues for recovery on an

implied-in-fact contract theory, but this cannot constitute

a viable approach in the absence of an agreement such as

would support reformation. The AEC uranium procure-

ment program, as set out in the published materials, was

limited to contracts for uranium concentrate at a nego-

tiated price over a defined contract period. There is no

sanction for any separate implied-in-fact tailings hazard

contract unrelated to the negotiated uranium purchase

agreements. See ITT Federal Support Services, Inc. v.

United States, 209 Ct.Cl. 157, 168 n. 12, 531 F.2d 522,

528 n. 12 (1976). ;

Western Nuclear also asserts that it has at all times

acted as an agent for the government in its uranium

dealings so that it does not own mill tailings. However,

assuming this allegation to be correct, Western Nuclear

does not show how this circumstance would produce a

claim for monetary relief within the jurisdiction af-

forded by 28 U.S.C. § 1491. Perhaps the allegation is

intended to reflect a position in defense of any enforce-

ment action under UMTRCA.

Western Nuclear asserts in its complaint that com-

pliance with the UMTRCA and regulatory requirements

will cause it to spend more money ‘upon termination of

its license without renewal” than the mill itself is worth.

This circumstance is claimed to amount to a taking of its

property, entitling it to just compensation under the

Fifth Amendment to the Constitution.

It is concluded that Western Nuclear cannot set forth

a valid “taking” claim in the circumstances pleaded.

There is no physical invasion of the property. See Lor-

etto v. Teleprompter Manhattan CATV Corp., 458 U.S.

purchase contracts were considered to remain viable for purposes of

amendment (reformation), this might well not be possible. Any

amendment(s) of such a magnitude could well be beyond the scope

of the original contracts as negotiated. Edward R. Marden Corp. v.

United States, 194 Ct.Cl. 799, 442 F.2d 364 (1971).

39a

419, 435-38, 102 S.Ct. 3164, 3175-78, 73 L.Ed.2d 868

(1982). Western Nuclear does not claim that, pursuant

to the law and regulations, the government has physic-

ally interfered with its commercial production of ura-

nium or that such production has been or now is com-

mercially unprofitable in and of itself because of govern-

ment regulation, as opposed to being difficult and ex-

pensive to clean up after and to cease operations. Thus,

the plaintiff has not alleged that it has been deprived of

all beneficial use of its property. Sce, e.g., Deltona Corp.

v. United States, 228 Ct.Cl. 476, 657 F.2d 1184 (1981),

cert. denied, 455 U.S. 1017, 102 S.Ct. 1712, 72 L.Ed.2d

135 (1982).

In this case, mill tailings from the AEC contract de-

liveries are now commingled with commercial tailings, all

of which must be cleaned up and the mill made safe

after operation ceases. However, such requirements in

and of themselves do not give rise to a compensab'e tak-

ing even though the costs thereof are quite high. See,

e.g., Allied-General Nuclear Services v. United States,

839 F.2d 1572, 1576 (Fed.Cir. 1988); Galloway Farms,

Inc. v. United States, 834 F.2d 998, 1002 (Fed.Cir.

1987) ; Carruth v. United States, 224 Ct.Cl. 422 and 446,

627 F.2d 1068 (1980); Radioptics, Inc. v. United States,

223 Ct.Cl. 594 at 620, 621 F.2d 1118 (1980). That is,

the government may regulate the use of land or a busi-

ness through its police powers, 7.e., for health and safety

reasons, even if such regulation causes the owners of

such property to spend additional revenue, without such

regulation being found a constitutional taking requiring

compensation. Individuals hold their property subject to

the limitation that they not use it in dangerous or noxi-

ous ways. Keystone Bituminous Coal Assn. v. DeBene-

dictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472

(1987); Matter of Quanta Resources Corp., 739 F.2d

912 (3rd Cir.1984), aff'd, Midlantic National Bank v.

N.J. Dept. of E.P., 474 U.S. 494, 106 S.Ct. 755, 88

L.Ed.2d 859 (1986).

40a

In this case, Western Nuclear alleges the mill and its

production value are diminished and are less than the

plaintiff’s past and future costs of complying with the

regulatory requirements However, these allegations do

not surmount those made in other cases before the Su-

preme Court which were not sustained as Fifth Amend-

ment takings.* For example, in Miller v. Schoene, 276

U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928), the statute

which mandated the destruction of red cedar trees with-

out compensation for their value in order to protect ap-

ple orchards was held not to constitute a taking. In

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114,

71 L.Ed. 303 (1926), the enactment of a zoning ordi-

nance limiting the uses of unimproved property which

reduce] the property’s value by 75 percent was not

found to constitute a taking. In Hadacheck v. Sebastian,

239 U.S. 894, 36 S.Ct. 143, 60 L.Ed. 348 (1915), an or-

dinance precluding the manufacture of brick did not con-

stitute a taking even though it reduced the value of the

petitioner’s land to less than one-tenth its prior value.

In addition, if a taking were to be found under these

circumstances, many regulations the government imple-

ments to protect the environment and or the health and

safety of its citizens would result in compensation to

those who are responsible for the “noxious” or ‘“‘nuisance-

type” uses as they could claim a taking based on their

costs of compliance. For instance, the Clean Air Act, 42

U.S.C. $ 7401, et seq., provides for national standards on

the level of air pollutants. The act provides penalties for

noncompliance. 42 U.S.C. § 7413. Under Western Nu-

5 See Michelman, “Property, Utility. And Fairness: Comments

on the Ethical Foundations of ‘Just Compensation’ Law,” 80 Harv.

L.Rev. 1165, 1191 (1967), in which the author comments on “the

absence of ‘magnitude’ considerations from decisions sustaining

curbs on ‘noxious’ or ‘nuisance-like’ uses of property; for these

may, it seems, be quelled by public authority without any compen-

sation for huge losses representing near-total devaluation of hold-

ings.”’ (Footnote omitted.)

ee a Tee

4la

clear’s theory, those required to comply with the Clean

Air Act standards would have to be compensated for a

constitutional taking because the costs of compliance may

be high."

Therefore, for the above-stated reasons and because

the requirements imposed by the UMTRCA and the im-

plementing regulations cannot be more technologically or

financially onerous than those imposed by other environ-

mental protection measures such as the Clean Air Act,

no taking claim has been set forth requiring further pro-

ceedings for its resolution.

Western Nuclear also claims that the UMTRCA vio-

lates the equal protection clause of the Fifth Amend-

ment because licensees of active sites must pay for recla-

mation and decommissioning while the government pays

those costs for inactive mill sites. However, pursuant to

6 See Union Electric Co. v. EPA, 427 U.S. 246, 256, 96 S.Ct. 2518,

2525, 49 L.Ed.2d 474 (1976), wherein the court stated that “[a]fter

surveying the relevant provisions of the Clean Air Act Amendments

of 1970 and their legislative history, we agree that Congress in-

tended claims of economic and technological infeasibility to be wholly

foreign to the Administration’s consideration of a state implementa-

tion plan.” In addition, Justice Powell in his concurring opinion at

270. n. 1, states: “The record is clear beyond question that at least

the sponsors and floor leaders of the Clean Air Act intended that

industries unable to comply with approved state implementation

plans, whether because of economic or technological infeasibility,

would be ‘closed down.’ * * * Indeed * * * it is clear from the legis-

lative history that even total technological infeasibility is ‘irrele-

vant.” See also Lead Industries Ass’n v. Environmental Protec-

tion Agency, 647 F.2d 1130 (D.C.Cir.1980), cert. de nied, 449 U.S.

1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980), in which the court,

upon consideration of the Clean Air Act and its legislative history,

stated at 1150, “[I]f there is a problem with the economic or tech-

nological feasibility of the lead standards * * * [the] party affected

by the standards, must take its case to Congress, the only institu-

tion with the authority to remedy the problem. [Footnote omitted. ]

Thus. it is clear that Congress may enact statutes directing indus-

try compliance which is not feasible either economically or tech-

nologically and such legislation may be upheld.”

42a

section 115 of the UMTRCA, the Department of Justice

has the responsibility of reporting to Congress on

whether it would be possible to obtain reimbursement for

the government funds expended pursuant to the act from

former owners of the inactive mill sites. See 42 U.S.C.

§ 7925 (1978). Thus, rather than expressing an intent

to pay the entire bill for all mill sites, it is clear that

Congress desired that those who operated the mills pay

the costs of cleanup.

The tenor of the argument submitted indicates that

plaintiff's concern is not so much that equal treatment is

provided under the law as that the government reim-

burse past costs and pay future expenses of complying

with the regulations. However, this type of challenge to

the act and the regulations does not constitute a claim

for a money judgment against the government that

would be within the jurisdiction of this court. See Car-

ruth v. United States, 224 Ct.Cl. 422, 445, 627 F.2d 1068

(1980), in which the court stated:

This court has no jurisdiction over claims based

upon the Due Process and Equal Protection guaran-

tees of the Fifth Amendment, because these consti-

tutional provisions do not obligate the Federal Gov-

ernment to pay money damages. Walton v. United

States, 213 Ct.Cl. 755 (1977); Muehlen v. United

States, 209 Ct.Cl. 690 (1976); Eastport S.S. Corp.

v. United States, 178 Ct.Cl. 599, 372 F.2d 1002

(1967).

In Carruth the plaintiff made a similar equal protection

argument. In that case, farmers and shellers received

d'fferent treatment pursuant to a federal regulation pro-

viding for indemnification for shellers with no compar-

able provisions for farmers with respect to peanuts

which could not be sold. The court rejected that claim

because there was no obligation under the asserted reg-

ulation for the government to pay money damages.

Thus, Western Nuclear’s assertion does not state a claim

for relief as the statute involved, UMTRCA, does not

43a

provide compensation. A general claim based solely on

the equal protection clause must fail since this court

would not, under any set of facts, be able to order mone-

tary relief.

Finally, Western Nuclear claims that the UMTRCA

constitutes an ex post facto law which requires it to re-

claim the mill tailings and decommission its mill, all of

which were created prior to passage of the act, because

its license was in effect on January 1, 1978, which was

10 months prior to the act’s passage. Thus, plaintiff was

not allowed to cease operation and escape the conse-

quences of the act prior to its effective date. The govern-

ment argues that this type of claim is not for a money

judgment against the government and, consequently, does

not come within the jurisdiction of this court pursuant

to 28 U.S.C. § 1491.

Based on the allegations in Western Nuclear’s com-

plaint and its brief, this claim is not within the jurisdic-

tion of the Claims Court. As the court stated in Fasi-

port Steamship Corp. v. United States, 178 Ct.Cl. 599,

605, 372 F.2d 1002, 1007 (1967):

Section 1491 of Title 28 of the United States Code

allows the Court of Claims to entertain claims

against the United States ‘founded either upon the

Constitution, or any Act of Congress, or any regu-

lation of an executive department, or upon any ex-

press or implied contract with the United States

** *” But it is not every claim involving or in-

voking the Constitution, a federal statute, or a regu-

lation which is cognizable here. The claim must, of

course, be for money. Within that sphere, the non-

contractual claims we consider under Section 1491

can be divided into two somewhat overlapping

classes—those in which the plaintiff has paid money

over to the Government, directly or in effect, and

seeks return of all or part of that sum: and those

demands in which money has not been paid but the

44a

plaintiff asserts that he is nevertheless entitled to a

payment from the treasury. {Footnote omitted. |

Plaintiff is not basing this particular claim on a con-

tract theory or on the theory that it is seeking the return

of money previously paid to the government.’ Plaintiff

may have spent money to clean up its mill tailings, but

such money has not been alleged to have been paid to the

government. Thus, its claim must be that some law, reg-

ulation or the Constitution grants it the right to be paid

a certain sum. As to this type of claim, the court stated

in Eastport Steamship Corp., 178 Ct.Cl. at 607, 372 F.2d

at 1008-09:

Where the claimant is not suing for money improp-

erly exacted or retained (the first class defined

above!, the historical boundaries of our competence

have excluded those instances in which the basis of

the federal claim—be it the Constitution, a statute,

or a regulation—cannot be held to command, in it-

self and as correctly interpreted, the payment of

money to the claimant, but in which some other

principle of damages has to be invoked for recovery.

. = 2

Under Section 1491 what one must always ask is

whether the constitutional clause or the legislation

which the claimant cites can fairly be interpreted as

mandating compensation by the Federal Government

for the damaye sustained. If not, this court cannot

s

give relief under Section 1491 * * *,

Here, it is clear that the UMTRCA and the regulations

do not mandate compensation by the government for

7 Plaintiff does not claim that it has had to pay a civil penalty

because of noncompliance and that it is suing for the return of its

money which was illegally extracted. In fact, plaintiff has not paid

any penalties and states it wants to avoid having to pay them by

complying with the remedial requirements (at the government’s

expense ). aaa

45a

plaintiff's compliance costs. Rather, the statute itself

mandates just the opposite, i.e., that the plaintiff and not

the government pay for the remedial actions required of

the active mill licensees. See 42 U.S.C. §$§ 2113 and 7925.

In addition, there is no language in the ex post facto

clause itself which requires the payment of money dam-

ages for its violation.* U.S. Const. Art. I, § 9, el. 3. See

generally Murray v. United States, 817 F.2d 1580 (Fed.

Cir.1987), in which the court found that the Claims

Court did not have jurisdiction over the appellants’ claim

that they were deprived of their property without due

process of the law because the Fifth Amendment’s due

process clause contained no language requiring damages

for its violation.

Thus, no relief may be granted Western Nuclear by

this court since the assertion that the plaintiff is owed

compensation because the UMTRCA is claimed to con-

stitute an ex post facto law does not present a claim

within the court’s jurisdiction.

Western Nuclear requests that any of its constitutional

claims, determined to be outside the jurisdiction of the

Claims Court, be transferred to the United States Dis-

trict Court for the District of Colorado. It does not ap-

pear that constitutional challenges to the enforcement of

environmental cleanup statutes on equal protection or

retroactivity theories have met with success. See United

States v. Union Gas Co., 832 F.2d 1343, 1357 (3rd Cir.

1987): United States v. Northeastern Pharmaceutical,

810 F.2d 726 (8th Cir.1986) ; United States v. Conserva-

8 In addition, as the court stated in Kurte v. Office of Personnel

Management, 797 F.2d 967, 972 (Fed.Cir.1986), “from ‘earliest

times,’ the Supreme Court has construed the ex post facto provision

to apply only to criminal laws.” (Citation omitted). Thus, since

the penalties imposed pursuan* to the UMTRCA are civil, not crimi-

nal, the express constitutional proscription against er post facto

laws would not be relevant. See section 110 of the UMTRCA of

1978, 42 U.S.C. § 7920; United States v. D.K.G. Appaloosa, Inc.,

829 F.2d 532, 540-45 (5th Cir.1987).

46a

tion Chemical Co., 619 F.Supp. 162 (D.C.Mo.1985). See

also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1,

18-19, 96 S.Ct. 2882, 2893-94, 49 L.Ed.2d 752 (1976).

However, this does not militate against presentation of

these matters by Western Nuclear before a court having

jurisdiction to resolve them with the benefit of the filing

date in this matter as provided in 28 U.S.C. § 1681.

TVA v. United States, 138 Cl.Ct. 692, 696 (1987).

Conclusion

As it has been determined that plaintiffs are entitled

to no relief under any state of facts which could be

proved on the pleaded allegations as viewed in the his-

torical context of the AEC’s uranium procurement pro-

gram, it is ORDERED that final judgments shall be en-

tered as follows:

(1) The complaints in these matters, except No. 565-

84C, shall be dismissed with no costs to be assessed;

(2) All claims in No. 565-84C, with the exception of

the constitutional equal protection and ex post facto

claims, shall be dismissed with no costs assessed;

(3) No. 565-84C shall be transferred, pursuant to 28

U.S.C. § 1631, to the United States District Court for

Colorado for appropriate action with respect to the re-

maining constitutional equal protection and ex post facto

claims.

47a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

89-1205, -1206, -1207, -1208

-1209, -1210, -1211, and -1212

ATLAS CORPORATION,

KERR-MCGEE CHEMICAL CORPORATION,

QUIVIRA MINING COMPANY,

WESTERN NUCLEAR, INC.,

ATLANTIC RICHFIELD COMPANY,

UMETCO MINERALS CORPORATION and

UNION CARBIDE CORPORATION,

HOMESTAKE MINING COMPANY OF CALIFORNIA, INC., and

PATHFINDER MINES CORPORATION,

Plaintiffs-A ppellants,

Lo

THE UNITED STATES,

Defendant-A ppellee.

On Appeal from the United States Claims Court

in Case No. 281-83 C

JUDGMENT

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

AFFIRMED.

ENTERED BY ORDER OF THE COURT

s/ Francis X. Gindhart

FRANCIS X. GINDHART

Clerk

Dated Feb. 2, 1990

Issued as a Mandate: February 23, 1990

48a

APPENDIX D

IN THE UNITED STATES CLAIMS COURT

No. 281-83 C

ATLAS CORPORATION

Wa

THE UNITED STATES

JUDGMENT

Pursuant to the opinion of October 31, 1988, directing

entry of final judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

suant to Rule 58, that the complaint is dismissed. No

costs.

FRANK T. PEARTREE

Clerk of Court

November 2, 1988 By: /s/ Linda A. Eddins

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see

RUSCC 72. Effective May 1, 1987, RUSCC

77(ki (2) is amended to read:

“Filing Notice of Appeal..... $105.00 (in-

cludes $5.00 fee for notice of appeal and

$100.00 Court of Appeals filing fee)”’.

49a

IN THE UNITED STATES CLAIMS COURT

No. 143-84 C

KERR-MCGEE CHEMICAL CORPORATION

Ve

THE UNITED STATES

JUDGMENT

Pursuant to the opinion of October 31, 1988, directing

entry of final judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

suant to Rule 58, that the complaint is dismissed. No

costs.

FRANK T. PEARTREE

Clerk of Court

November 2, 1988 By: /s/ Linda A. Eddins

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see

RUSCC 72. Effective May 1, 1987, RUSCC 77

(k) (2) is amended to read:

“Filing Notice of Appeal..... $105.00 (in-

cludes $5.00 fee for notice of appeal and

$100.00 Court of Appeals filing fee)”.

50a

IN THE UNITED STATES CLAIMS COURT

No. 581-84 C

PATHFINDER MINES CORPORATION

Ve

THE UNITED STATES

JUDGMENT

Pursuant to the opinion of October 31, 1988, directing

entry of final judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

suant to Rule 58, that the complaint is dismissed. No

costs.

FRANK T. PEARTREE

Clerk of Court

November 2, 1988 By: /s/ Linda A. Eddins

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see

RUSCC 72. Effective May 1, 1987, RUSCC

77(k) (2) is amended to read:

“Filing Notice of Appeal..... $105.00 (in-

cluces $5.00 fee for notice of appeal and

$100.00 Court of Appeals filing fee)”.

5la

IN THE UNITED STATES CLAIMS COURT

No. 144-84 C

QUIVIRA MINING COMPANY

V.

THE UNITED STATES

JUDGMENT

Pursuant to the opinion of October 31, 1988, directing

entry of final judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

suant to Rule 58, that the complaint is dismissed. No

costs.

FRANK T. PEARTREE

Clerk of Court

November 2, 1988 By: /s/ Linda A. Eddins

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see

RUSCC 72. Effective May 1, 1987, RUSCC 77

(k) (2) is amended to read:

“Filing Notice of Appeal..... $105.00 (in-

cludes $5.00 fee for notice of appeal and

$100.00 Court of Appeals filing fee)”’.

52a

IN THE UNITED STATES CLAIMS COURT

No. 579-84 C

UMETCO MINERALS CORPORATION

and

UNION CARBIDE CORPORATION

¥y

THE UNITED STATES

JUDGMENT

Pursuant to the opinion of October 31, 1988, directing

entry of final judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

suant to Rule 58, that the complaint is dismissed. No

costs.

FRANK T. PEARTREE

Clerk ef Court

November 2, 1988 By: ‘s/ Linda A. Eddins

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see

RUSCC 72. Effective May 1, 1987, RUSCC

77(k) (2) is amended to read:

“Filing Notice of Appeal ..... $105.00 (in-

cludes $5.00 fee for notice of appeal and

$100.00 Court of Appeals filing fee)”.

58a

APPENDIX E

STATEMENTS PURSUANT TO SUP. CT. RULE 28.1

Based on information furnished by counsel for the

companies in question, the following are the parents, af-

filiates, and non-wholly-owned subsidiaries of petitioners.

Atlas Corporation has no parents, affiliates, or non-

wholly-owned subsidiaries.

Kerr-McGee Chemical Corporation is a wholly-owned

subsidiary of Kerr-McGee Corporation. The non-wholly-

owned affiliates and subsidiaries of the Kerr-McGee

Chemical Corporation are:

Basic Management, Inc.

Bikita Minerals (Private) Limited

Brewster Phosphates

Cooljarloo Management Services, Pty., Ltd.

Downtown Airpark, Inc.

Fishermen’s Petroleum Company PLC

Kerr-McGee Canada Ltd.

Kerr-McGee Egypt, Ltd.

Kerr-McGee Gabon Limited

Kerr-McGee Limited

Kerr-McGee Malaysia Limited

K.M.A. Sales Pty. Ltd.

KMM Australia International Pty. Ltd.

National Titanium Dioxide Company Limited

(Cristal)

Piro Implementation, Inc.

Texoma Pipe Line Company

Transnor Drilling Company Limited

Transocean Drilling Company Inc.

Transocean Drilling Company Limited

Transocean Drilling Company (U.K.), Limited

Transshore Drilling Company Limited

Transworld Drilling Company Limited

Transworld Drilling Company (Nigeria) Limited

54a

Transworld Perfuracoes Maritimas Limitada

White Shoal Pipeline Corporation

Pathfinder Mines Corporation is a wholly-owned sub-

sidiary of PMC Acquisition Corporation, which is a

wholly-owned subsidiary of Compagnie Generale des Ma-

tieres des Nuclearies, which is a wholly-owned subsidiary

of COGEMA, Inc., which is a wholly-owned subsidiary of

CEA Industries. Pathfinder Mines Corporation is affili-

ated with NUMATEC, Inc., MINERCORP, Inc., UREX,

Inc., and Pathfinde: Gold Corporation. Pathfinder Mines

Corporation has no non-wholly-owned subsidiaries.

Quivira Mining Company has no subsidiaries, and is

wholly-owned by Rio Algom Mining Corporation, which

is wholly-owned by Rio Algom, Inc, which in turn is

wholly-owned by Rio Algom Limited. The RTZ Cor-

poration, PLC owns 52% of Rio Algom Limited. Stock

in The RTZ Corporation and the remaining stock in Rio

Algom Limited are publicly traded.

Umetco Minerals Corporation is a wholly-owned sub-

sidiary of Union Carbide Corporation, and has no affili-

ates, or non-wholly-owned subsidiaries.

Union Carbide Corporation has no parents, affiliates,

or non-wholly-owned subsidiaries.