Petition for Writ of Certiorari — Jakoby v. United States, 41 Fed. Cl. 2344 (1998) (No. 97-1766)

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( Supreme Court, U.S

\ FILED

971766 APR 28 1998

: UFRHICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

RUTH KERR JAKOBY,

Petitioner

UNITED STATES,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Ruth Kerr Jakoby

Pro Se

2610 Blaine Drive

Chevy Chase,

Md.,20815

(301) 589-0643

Sn whee ON REEALORRE —

anne AC

inl DN Ott

Sin niisina namic :

Bp dR Solas LEE OVERS,

~ QUESTIONS PRESENTED FOR REVIEW

Whether the Six Year Statute of Limitations of the Federal

Court of Claim’s Tucker Act, 28 U.S.C. 1491 is an unconstitu-

tional jurisdictional requirement for"TakingCauses of Action" and

should not be used for purposes of Suramary Judgment against a

Plaintiff, as it effectuates a denial of Plaintiff's Seventh Amendment

Right to a fair trial, as well as her Fifth Amendment Right to just

compensation, because the phrase “nor shall private property be

taken for public use without just compensation “is an independent

and equal clause in the Fifth Amendmentand stands alone unquaili-

fied as to the time or duration of the “Taking” and the filing of the

Complaint.

Whether a videotaped interview of petitioner's expert witness who

had made a sworn affidavit as to his testimony prior to the video

tape interview, but the video tape interview was not under oath or

penalty of perjury should have been used in support of petitioner's

opposition to Government's motion for summary judgment as to

material factual issues in dispute as to danger from 36 hidden,

active land-mines or the testing of other military ordinance or

weapons of mass destruction even though the videotape itself was

not admissible as evidence. RCFC, App H. Rule 56 (f), 28

U.S.C.A.

Whether totoll statute of limitations applicable to action against

the United States Government, a pro se plaintiff must demon-

strate that Government has concealed its acts, when the Gov-

ernment should have a duty to disclose its acts and only the

Government knows of its acts with the result that plaintiff was

unaware of their existence or that injury was inherently

unknowable at accrual date and summary judgment denied

plaintiff right to cross examine Government witness as to

danger from hidden active land-mines that Government initially

denied but later admitted the land-mine presence, when con-

fronted with hearsay inadmissible evidence.

QUESTIONS PRESENTED FOR REVIEW

Whether landowner's claim that the possibility of unexploded land-

mines on military's testing facility in off-road location resulted in

constructive denial of all access to her property as off-road travel

was necessitated by a lack of road to her property located on

military testing facility and 36 active land -mines were placed by

the military in an area that plaintiff had to travel over off- road to

reach her Chrysocolla deposit and this event accrued in March

1991 within the six year statute of limitations following the filing of

plaintiffs cause of action April 22, 1996 in the Federal Court of

Claims and was a “taking”.

Whether pro se landowner's Sixth Amendment Right “to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have assis-

tance of counsel for his defence” should also apply in a Civil

“Takings Case” against the Government and summary judgment

denied Plaintiff 's right to cross examine adverse Government

witness whose affidavit stated there was no danger from the land-

mines or impairment of access.

Whether prose landowners Seventh Amendment Right " in suits

at common law, where the valuein controversy shall exceed twenty

dollars, the right oftrial by jury shall be preserved" was denied by the

granting of the Government's Motion for Summary Judgment as

wellas landowners Fifth Amendment Right to Just Compensation

for the taking of her mineral rights.

Whether the Court's denial of joinder of owner's of the Copper

Chief mine and discovery as to what other owner's had been

paid for their mineral rights denied property owner her Four-

teenth Amendment Rights to equal protection of the laws.

——

LIST OF PARTIES

TO THE PROCEEDINGS

IN THE COURT BELOW

Ruth Kerr Jakoby, M.D.,F.A.C.S.,J.D. is petitioner and part owner

of the Copper Chief Mine. Judge Bruggink of the Federal Court

of Ciaims found it unnecessary tojoin other owners of the Copper

Chief Mine in this “Takings” action in violation of petitioner's Fifth

amendment right to just compensation for the Yuma Proving

Ground surrounding the Copper Chief Mine. Ruth Kerr Jakoby, Pro

Se,2610 Blaine Drive, Chevy Chase,Md.,20815 (301)589-0643

is the only petitioner, although she gave one -third of her one-half

interest in the Copper Chief mine to Northern Virginia law Schoo!

4105 Duke Street, Alexandria, Va. 22304 (703) 468-8971.

Respondents for the United States are Lois J. Schiffer, Assistant

Attorney General Environment & Natural Resources Division;

Martin W. Matzen, Lewis S. Wiener, J. Carol Williams, Attorneys

Environment & Natural Resources Division .P.O.Box 23795,

L'Enfant Station, Washington D.C.20026 (202) 514-5313

Of Counsel: Anne C. Gamson U.S. Army Corps of Engineers,

Phoenix, Arizona 85012

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...ccnecssenstnsesnensntnneneen i |

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CONSTITUTIONAL ANDSTATUTORY |

PROVISIONS INVOLVED. ..........:..:ssssssssseeseen 1 |

STATEMENT OF THE CASE. ..c.scsensestesnstereee 2 |

REASONS FOR GRANTING THE WRIT.......csscsssssoseee 17 |

Certiorari should be granted

To Resolve An Important

Question of Constitutional Law

Which Has Not Been, But Should Be

Settled By This Honorable Court.................... 17

Certiorari Should Be Granted To

Quarantee Uniform Access And :

Use Of Summary Judgment 2

In The Federal Court Of Claims

TF ei ori vhscicretdeencccsseccctncisnnsiance 18 |

)

Certiorari should be granted to

Guarantee Just Compensation

in a ‘Regulatory Takings’ of Mineral

sg, MERRIER CTR ERD Tate Mie BDU ER eed ae 21

Certiorari should be granted

to guarantee Equal Protection

i ackaseicicnesintaldessatacensiseinceseess 26

RN UIT TIT rien nouns x iodansdudnsnede knits hues ates usinnticeioousin 27

PF i vareed pccebdcandilec att cides sla tik eaaatoncciwallaioen Al

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA COMPLAINT

IN CONDEMNATION................cccccccsscesrresseese A2

FEDERAL COURT OF CLAIMS ORDER

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UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT ORDER AND

OPINION

On Motion Circuit Judge Bryson..............cc:cccccseeeee A21

Per Curiam Circuit Judges Rich, Shall and

MI aiiicti icc bsg sada tiinsth covsaneccnns dabeemesbasesaks taacksccsebs A23

TABLE OF AUTHORITIES

CASES:

Anderson v. Liberty Lobby, Inc. 477 U.S. 242,

es IN SE viinvanssnsuusslincesssdecsasechonvuncenasodebeokecios 16

Benton-Voivo-Metairie, Inc. v. United States 812 F 2d

FEE 5 CATE THOT wcbihnscincedhoscebivensuianisteonsacsdeéeoeions 20

C. Sanchez and Su Inc. v. United States 812 F 2d

Se Fe GAs Ti cvetarinciecncsivesasinssinnststaacsconnsensons 19

Catellus Dev. Corp. v. United States. 31 Fed.Ci. 399

Coastal Petroleum Co. v. United States, 228 Ct.Cl. 864,

IN ah ciiget bh esis ckcAieakabebdtiusenisuacbovenin venedibiouihveacsdens 19

Fallini v. United States, 56 F. 3d 1378,1380 (Fed. Cir.

1995), cert denied-U.S.-116 S. Ct. 2496

meal.

Hopland Band of Pomo Indians v. United States,

855. F.2d 1573, 1576-77 (Fed. Cir. 1988)... 16,26

Japanese War Notes Claimants Ass'n v. United States

178 Ct. Cl. 630, 634, 373 F. 2d 356,359, cert. denied

389 U.S. 971, 88S. Ct.466, 19 L. Ed. 2d 461 (1967). ...19

L fe) lj | Council

I a i satenhipbionnes ohana 25

Mingus Construction Inc. v. United States 812 F2d

TEE, VET EE WE BUNT bidictbustieinies rithcanistyabnosevecnseveneseseton 19

Pennsylvania Coal v. Mahon, 260 U.S. 393,415 (1922).......... 25

STATUTES:

Se SrA: GIP U cnsesintanneccssennressiviassummaniseesnaneseniemenstontats nceneninsoeosiiae 1

Se is CAN Betiriciciscsneiisebinennsetenimienecnntebeninbdnstbinenmnedannsates 14

Fae Sapa OEE T sisciniennstinbinsabasasatiinbptaieicioaeibadiadiesialaiane 16

Oy SAAT dveviseaninpnbenionpervdiabiviinenssseaiessinasiinaiaguesiiins 2

Sp Sars EE Baietatwetsnniiveninsanssitthcsnensotennsnssuinoisiaionsbnagi 2

CONSTITUTION

Fae Cb RMTITET asirieneinknubsicesitusiistnihiinieiaiiasiaaiputs 26

SEK THT AAIEINIIIIEIN 8 occccccccocossossrecnccsesosscsnnscvsoecesecoenes 26

SEVENTHAMENDMENT..............-ccccseescecsceseeeeeserenes 26

FOURTEENTH AMENDMENT...................0-ecereeceeseee 27

OPINIONS BELOW

The February 18, 1998 Judgment Order of the United States

Court of Appeals For The Federal Circuit, whose judgment herein

is sought to be reviewed, is at No. 97-5108, is unpublished and is

reprinted in the Appendixto this Petition atpp. A-23. The prior Order

and Opinion of the Honorable Eric G. Bruggink of the United States

Court of Federal Claims entered June 23, 1997 at No. 96-CV-216

is published in 38 Fed. Cl. 192 (1997) and is reprinted in the

Appendix to this Petition at pp. A-11.A Complaint in Condemna-

tion CIV 72-339 was filed in the United Strates District Court For

The District Of Arizona by William C. Smitherman, United States

Attorney and Richard S. Allemann Assistant United States Attorney

atthe request of the Secretary of the Army for the taking of property

under power of eminent domain and for the ascertainment and

award of just compensation to the owners and parties of interest by

“authority of Act of Congress approved February 26, 1931 and is

reprinted in the Appendix to this Petition at pp.A2.

JURISDICTION

The Judgment Order of the United States Court of Appeals

for The Federal Circuit was entered on February 18, 1998. The

jurisdiction of this Courtis invoked pursuantto 28 U. SC.1254

(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This action was filed pursuant to 28 U.S.C.§ 2501 (1992)

in the Federal Court of Claims on the basis that the Army Corps of

Engineers had taken the Copper Chief Mine and the entire sur-

rounding area consisting of 3,179.94 acres of land more or less in

the County of Yuma, State of Arizona for the Yuma Proving Ground,

a military ordinance testing facility without just compensation in

violation of Plaintiff's Fifth Amendment Right.The pertinentsections

ofthese Constitutional and Statutory Provisions are set forth in the

Appendix at pp A26. The statutory basis for jurisdiction of the

Federal Court of Claims is the Tucker Act, 28 U.S.C.§}1491. The

Federal Court of Claims has exclusive jurisdiction to review these

kinds of claims (Taking's Claims’) against the United States. The

United States Court of Appeals for the Federal Circuit had jurisdic-

tion under 28 U.S.C. 1295 (a) (3) on appeal from a timely filed final

order. :

STATEMENT OF THE CASE

The Yuma Proving Ground authority for the taking is the Act of

Congress approved February 26, 1931 (46 Stat. 1421, 40jU.S.C.

258 (a)), and acts supplementary thereto and amendatory thereof,

and underfurther authority ofthe Act of Congress approved August

1, 1888 (25 Stat. 357, 40 U.S.C. 257); Section 2663 of Title 10,

United States Code, which authorizes the acquisition of land for

military purposes. Funds for such purposes were to be made

available by the Department of Defense Appropriations Act for

1973, or, ifnot enacted prior to July 1, 1972, by ajoint resolution of

Congress. The interest in the property to be acquired is the estate

taken for aterm of years beginning July 1, 1972 and ending March

31, 1973, extendible for yearly periods thereafter, atthe election of

the United States until March 31 , 1977pursuantto Civ 72-339 PHX

in the United States District Court For The District of Arizona.

Mite We yt * teaddte tt en ig, a ta

Ruth Kerr Jakoby, M.D.,F.A.C.S.,J.D., hereinafter referred to as

Petitioner acquired three Treasurer Deeds to the Copper Chief

Mine from the State of Arizona on or about June 20, 1975 as an

investment for her retirement. The property acquired included a

one-halfinterestin 13 patented mining claims wholly located within

the boundaries of the Yuma Proving Ground (YPG) in Arizona. The

Yuma Proving Ground is operated by the Governmentas a facility

for various military projects, including the testing of explosives and

other munitions; authorized by Public land Order 848, effective

January 1, 1950, subject to valid existing right of patented mine

owners to ingress and egress through the YPG for purposes of

accessing those patented mining claims. Some Claims of the

Copper Chief Mine were patented on or about April 13, 1908.

B. David Reichardt, Chief Arizona Real Estate Office in his

August 5, 1975 letter stated :

“the mining claim is presently in the exclusive possession

of the Government under Civil No.72-339-PHX on file in

the United States District Court for the District of Arizona,

Phoenix, Arizona. The iand within the mining claim is

considered an integral part of the military installation and

entry thereon cannot be permitted at this time." _

The Army Corps of Engineers allowed Jakoby and six associates

the right of entry on to the YPG on February 22, 1976 subject to

limitation of ingress and egress to existing roads or traiis or in the

event of no road or trail leading to the mining properties subject to

using the road or trail which leads most closely to the properties and

minimizing travel when not on an existing road or trail. Petitioner

was also required to sign a waiver:

"The United States, its officers,agents, and

employees shal! not be responsible for

damages to property or injuries to persons

which may arise from or be incident

to the entry upon the installation hereunder,

nor for damages to your property or for injuries

to your person, nor for damages to the property

or injury to the person of your associates ,

agents, servants, or employees,

or others who may be on said installation

at your or their invitation, arising from or incident

to government activities, and you shali hold

the United States harmless from any and all

such claims”... "The right of entry upon the

installation for the purposes hereinabove stated

on 21 and 22 February 1976 shall not be effective

until you have signed the acceptance...”

Petitioner as directed by the Army Corps of Engineers kept her

acceptance 2nd permission to traverse the Yuma Proving Ground

in her possession atall times while within the Yuma Proving Ground

and limited hertravel thereon to the weekends after first calling the

Yuma Proving Ground's air space and range control to ascertain

that there would be no testing of ordinance during off duty hours on

Saturday and Sunday. From 1976 until 1982 Petitioner made

multiple trips to the Copper Chief Mine with geologists, mineralo-

gists, geophysicists and graduate geology students in order to

study the geology of the Copper Chief Mine and to do the

necessary fieid work for its development.

In 1982 , Petitioner, John Robison and Mary Robinson

entered into a lease DACA09-5-82-152 with the United States

through the Department of the Army Corps of Engineers. The

Government paid $1200.00 per year for an “evacuation estate"

and other rights including prohibition of the use of the land for

any purposes other than mining; restriction on routes commenc-

ing north of the land approved in writing , by commander YPG

and in no case any route south of one mile of the southerly most

point of the Copper Chief Mine; maintaining the right to search

all buildings, facilities vehicles on the land or access routes.

Reserving, however, to the owners, their heirs and assigns all

such rights and privileges in the land as may be used without

interfering with or abridging the rights of the Government. The

lease encumbering the Copper Chief Mine was terminated

effective midnight, July 28, 1985. On or about December 6,

1985 Jakoby assigned one-third of her one-half interest in the

Copper Chief Mine to Northern Virginia Law School.

The Government maintains that it has never taken the

Copper Chief Mine but ifit has then it has taken itover six years

from the time Jakoby filed the underlying complaint in the

United States Court of Federal Claims on April 26, 1996. The

Government states that:

“There are currently no restrictions of any kind on

Jakoby's access to the Copper Chief Mine or

any of her other properties that are within the ~

confines of YPG, nor have there been any

restrictions of any kind on her access to those

properties since 1985 when the leases were

terminated”.

Petitioner maintains that the presence of the YPG sur-

rounding her 13 patented mining claims comprising the

Copper Chief Mine has prevented her from selling a

valuable Chrysocolla deposit and or the Copper Chief

Mine, ordeveloping a valuable underground cop-

per, gold and silver ore body because it is impos-

sible to move heavy drilling equipmentio the mine

site, or even drive atruckto the mine site to haul out

the already mined Chrysocolla. There is no road

of any kind to within 3/4 to a mile of the Copper

Chief Mine. The YPG hid over a hundred active

land-mines off road and at first denied their pres-

ence until shown a Governmentarticle describing

an experiment using infra-red in order

to locate 36 hidden land-mines simulating condi-

tions similar to the terrain in Kuwait during Desert

Storm in March 1991 (within the six year statute of

limitations or after April 22,1990 as the aforesaid

complaint was filed April 22, 1996 in the United

States Federal Court of Claims). Petitioner filed

an affidavit of Professor Donald Burta Professor

of Geology at Arizona State University, Tempe

Arizona, who stated under oath and under penalty

of perjury that:

“Clearly, the presence of the Yuma Proving

Ground has thus far prevented the develop-

ment or even evaluation by drilling of gold

or copper mines in the confines of the

Yuma Proving Ground, even though similar

areas outside of the proving ground have

many developed mines and good roz }

and air access."

A video proffer of Professor Burt who showed

how hidden land mines marked on a map of the

YPG and Copper Chief Mine could endanger

petitioner on her way to a Chrysocolla ore deposit as there was

no road to the area and a direct route off-road could take

petitioner over the area of hidden land-mines.

The Goverment initally denied the presence of land-mines on

the YPG, but then admitted their presence after an alfidavit was

obtained from a small aircraft pilot, Ms. Katherine McGeehon

who had a governmentarticie describing the land-mine experi-

menton the YPG in March 1991. The Government produced an

affidavit from Mr. JamesR. Marler, a Realty Specialist for Yuma

Proving Ground (YPG), who stated;

“There are currently no restrictions of any kind on

Jakoby's access to the Copper Chief Mine or any

of her other properties that are within the confines

of YPG, nor have there been any restrictions of any

kind on her access to those properties since 1985

when the leases were terminated. Further, there

are no restrictions of any kind on Jakoby’s mining

activities or on the use of heavy machinery or

explosives on her property. Dated February 14, 1997."

The Government filed an affidavit by Richard V. Albert, Test

Director and project engineer for the Yuma Proving Ground ,

who stated:

“| am also familiar with Plaintiffs [Petitioner's] claim that

the 1991 land mine test activities conducted on YPG

blocked or precluded access to her properties.

They did not.”

The Government filed an affidavit by Eusebio Lopez , a me-

chanical engineer who stated:

“1am also familiar with Plaintiffs [Petitioner's]

claim that the land mine test activities conducted on

YPG blocked or preciuded access to her properties.

They did not.

4. In March of 1991 certain land-mine

tests were conducted on YPG.

These tests involved land-mines

that did not have fuses and

were conducted in a remote area

at least 1 mile north east of Cibola

Lake Road on YPG's eastern

boundary .

5. The 1991 land mine test activities

conducted north east of Cibola lake

Road posed no risk or danger to

civilians travelling on Cibola Lake

Road and did not require us to

close that road. In fact civilians

and privately owned vehicies

traveled over Cibola Lake Road

with no restrictions while the land-

mine tests were being conducted.

6. There is no reason why in March of

1991 Plaintiff [Petitioner] could not

have safely and without restriction

crossed Cibola Lake Road. There

would have been no reason for

her to cross the land mine test

area to access her properties.”

On April 25, 1996 in the United States Court of

Federal Claims Judge Bruggjink's order was

entered:

1. Counts 2 and 3 are dismissed. [reckess

endangerment and tortious interference ]

2.The request for a trial by jury is denied.

3. Plaintiff is directed to file an amended

compiaint.it is not necessary to

re-allege those facts alleged in the

present compiaint. Plaintiff is directed

however, to more specifically allege

the events that constituted a taking,

ms and to furnish the court in the amended

complaint with the plaintiff's best

understanding of when those events

occurred and when she learned of

those events. .”....:

Petitioner filed an amended complaint on May 24,

1996 . Petitioner was unable to give an exact date

when the Copper Chief Mine was taken in her

amended complaint, but in petitioner's opinion the

Copper Chief Mine was taken because she was

unable to sell it or further develop it because there

was no road to the Copper Chief and it was unsafe

to go there because of the surrounding YPG activi-

ties. The specific active land-mine test in March of

1991 was notmentioned in the amended compiaint

but danger from ordinance was alleged in general:

"32. Unknown and probably dangerous

weapons are and were being tested

on the proving ground preventing

the quiet enjoyment of this property,

further development and sale of the

mine."

"33. Germ warfare or the use of bacteria

may also have been tested on the

Yuma Proving Ground."

"34.The presence of the Army Proving

Ground surrounding the Copper Chief

Mine permanently deprived Jakoby

from a beneficial use of her property

and its sale which has resulted in an

actual as well as a constructive

taking of Jakoby 's [Petitioner's]

property without compensation in

violation of Jakoby’s [Petitioner's]

rights of Due Process under the

United States Constitution...." nor

shall private property be taken for

public use without just compensation."

35."Jakoby [Petitioner] decided to sell the

remaining two deeds to the Copper

Chief Mine less than two years ago

[Amended Complaint was filed

May 14, 1996] to supplement her

retirement income. Jakoby has been

unable to sell her two remaining Copper

Chief Mine Deeds because of rio right

of way or assurance of safety on the Yuma

Proving Ground."

The Government filed a motion to dismiss on August 26,

1996. A hearing was held on November 25, 1996 for oral

argument on the motion to dismiss after briefs had been

filed inresponse, reply and sur-reply. The motion todismiss

was denied without prejudice and Judge Bruggink said:

“and | think you know what! am looking for

in terms of a motion for summary judgment.

And what you are going to getis a motion —

that argues that there cannot have been a

denial of access, or at least in the last six

years there has never been a denial of

access."

Accordingly the Government filed a Proposed Findings of

Uncontroverted Fact and Motion for Summary Judgment

February 21, 1997. ACounter Statement of Facts, cross

motion for declaratory judgment and Response to

Government's Motion for Summary Judgment was filed by

Petitioner on April 1, 1997. Petitioner's Motion to Compel

Discovery as to the location of hidden active land-mines

was denied March 31, 1997, however, in Judge Bruggink’s

order he noted that the Government represented that it

wouldtreat Plaintiff's [Petitioner's] motion to compel discov-

ery as an ordinary request for discovery under RCFC 33

and 34 and would provide Plaintiff with information regard-

ing" ‘where and when land mines were placed onthe Yuma

Proving Ground and when they were removed, if they were

indeed removed" . The Government replied April 8, 1997:

“We have confirmed that in 1991 the Lawrence

Livermore Laboratories was involved in certain

aircraft testing activities that included making

passes over a live mine field containing 36 high

explosives mines. The mine field was located

on the Barry M. Goldwater Air Force Range

which is outside the confines of the Yuma

Proving Ground and in no way impaired or

affected your access to the CopperChief Mine.

These facts will be more fully detailed

in the Supplemental Affidavit of James R.

Marier that will be attached to the United

States Reply in Support of its Motion

for Summary Judgment."

Petitioner replied to the Government on Apri! 14, 1997

“The 36 active high explosive mines that

| [Petitioner] referred to were placed on

the Yuma Proving Ground in March 1991

and | would refer you to Energy & Technology

Review December 1991; an article entitled

“Airborne Detection of Buried Mine Fields’ pp 9-21.

This article is available from

National Technical information Service,

U.S.Department of Commerce 5285 Port Royal

Road Springfield, Virginia 22161"

Petitioner was unable to obtain an affidavit from one of the

physicists directly involved with locating hidden active land-

mines on the Yuma Proving Ground because the physicist

was afraid of losing her job at LawrenceLivermore National

Laboratory if she made an affidavit againstthe Government.

Therefore, Petitioner obtained an affidavit from Ms. Kather-

ine McGeehon,a licensed small aircraft pilot, who was

familiar with the physicist and had seen a similar experi-

ment demonstrated at the Lawrence Livermore National

Laboratory. Ms. McGeehon was familiar with the article

describing the experiment using infrared to locate under-

ground hidden land-mines; had flown over Arizona ina small

airplane and was also familiar with maps and navigation.

In the Government's Response to Petitioner's Reply to

Government's Motion for Summary Judgmentthe Govern-

ment maitained that:

“4. The land mine test activities described .

by Plaintiff [Petitioner] did not interfere

with or preclude access to her property...

2.No admissible or credible evidence

has been introduced to support

Plaintiffs assertion that land-mine

test activities preciuded or even

interfered with access to her property.

a. The Mc Geehon Affidavit is not

based on personal knowledge and

does not set forth facts that would

be admissible in evidence...

b. Ms. Mc Geehon does not appear to be

competent to testify as to the

matters set forth in her sffidavit...”

The Government had at first denied the presence of any land

mines on the Yuma Proving Ground; then admitted their pres-

ence, but in response to Petitioner's affidavits denied that the

March 1991 land mine test activities conducted on the Yuma

Proving ground precluded access to Petitioner's properties.

In addition to Ms. McGeehon's affidavit ,Professor Donald

Burt had made an affidaviton January 23, 1997 stating :

“Clearly, the presence of the Yuma Proving Ground

has thus far prevented the development or even

evaluation by drilling of gold or copper mines

in the confines of the Yuma Proving Ground”...

Subsequently Professor Burt was videotaped demonstrat-

ing on maps how land-mines located north of Cibola Road

would interfere with Petitioner's access to her mining prop- ,

erty to remove an already mined Chrysccolla ore deposit. {

April 17, 1997 Petitioner examined maps of the Yuma

Proving Ground at the Department of Justice . Areas were

marked showing where hidden land-mines had been lo-

cated. Subsequently, Petitioner was given similar maps

without the markings of the location of the land-mines but

was given the coordinates of the location of the land-mines

over the phone. The maps with the pencilled in coordinates

were then taken to Arizona and shown to Professor Donald

Burt at Arizona State University who examined them anda

video tape was made of him and the maps indicating the

relationship between the location of the land-mines and

Chrysocolla deposits and Cibola Road on May 16, 1997.

Petitioner filed a Sur-Response to the Government's Reply

in support of its Motion for Summary Judgment April 22,

1997 by leave of Court. Petitioner filed a motion for leave of

court on June 2, 1997 to file the video tape taken of

Professor Burt May 16,1997 showing how the YPG pre-

vented the development of the Copper Chief Mine and how

the landmines prevented the removal of the already mined

Chrysocolla depositthat Petitioner wanted to sell. On June 5,

1997 the Government filed a response to Deny Petitioner's

motion to file the May 16, 1997 video tape because Profes-

sor Burt had not been sworn in and his testimony was not

under threat of perjury. On June 12, 1997 Petitioner replied

to Government's response to deny Petitioner's motion to file

videotape of proffer of Professor Burt's testimony.On June

23, Judge Bruggink denied Petitioner's motion to file video

tape and judgment was rendered dismissing the complaint

pursuant to Rule 58 with Summary Judgment for

theGovernment and denying Petitioner's Cross Motion for a

Declaratory Judgmentof Governmentiiability fora “Taking”.

There was no trial or hearing after the first hearing on the

Government's motion to dismiss. There was no oral argu-

ment, direct examination of the Petitioner's witnesses or

cross examination of the Government's witnesses as to

danger from hidden land-mines or other Proving Ground

activities. There was a trial by affidavit only and even the

video proffer of expected testimony was denied.

On July 17, 1997 Petitioner filed a timely appeal to the

United States Court of Appeals for the Federal Circuit which

had jurisdiction under 28 U.S.C. 1295(a) (3) because this

was an appeal from a final order of the United States Court

of Federal Claims which had exclusive jurisdiction to review

“takings claims” against the United States under the Tucker

Act, 28U.S.C. 1491 Petitioner's Brief was filed September

22, 1997 and Petitioner filed amotion pursuantto Rule 27 for

leave of the appellate court to file the video proffer of an

expert geologist's, Professor Donald Burt's expected testi-

mony as to the prevention of development of the Copper

Chief Mine by the Yuma Proving Grounds testing of various

ordinance including but not limited to active land-mines.

This video had been returned to petitioner by the Federal

Court of Claims after denial of the motion to admit by leave

of court. After the Government's reply brief was filed, the

Motions Panel, Judge Bryson granted the motion to admit

the video for limited purposes. Judge Bryson denied a

request for further discovery and a motion to file altered

maps. The Governmentfiled its brief for Appellee the United

States and Appendix November 24, 1997 Petitioner, appel-

lant Jakoby filed her reply brief on December 8, 1997 and

Appendix December 15, 1997.Petitioner's request for oral

argument was treated as a motion and denied by the merits

panel. Jakoby v. United States 97-5108 was submitted on

the briefs before Judges Rich, Schall and Gajarsa on

February 2, 1998.

On February 18, 1998 The United States Court of Appeals

for the Federal Circuit A-23 affirmed The United States

Courtof Claims judgment rendering the following opinion:

...'we treat this dismissal as a grant of the Govern-

ment's motion for summary judgment. On appeal

Jakoby [Petitioner] raises no issue of law or fact

that was not expressly and adequately address-

ed in the well reasoned opinion of the trial court.

The arguments Jakoby [Petitioner] raises regard-

ing the statute of limitations are greatly

inapposite. The six year statute of limitations

applies to her claim and is not toiied. See

_Hopland Band of Porno Indians v United States,

855, F2d 1573, 1576-77 (Fed Cir. 1988)

(six-year statute of limitations is a jurisdictional

requirement and ‘must be strictly construed’).

In addition Jakoby's [Petitioner's] arguments

regarding the effect of the land mine tests are

insufficient to support her taking claim. When

faced with a defendant's summary judgment

motion, a plaintiff is not relieved of its own

burden of offering admissible evidence that if

believed would support a verdict, for the mere

existence of some allegations of factual dispute

will not defeat an otherwise properly supported

motion for summary judgment. See Anderson v.

Liberty Lobby, Inc. 477 U.S.242, 108 S.Ct. 2505

(1986) Therefore we are not persuaded to

disturb the reasoning of the trial court, and we

affirm the decision of the court for the reasons

set forth therein.”

ink nd aaa | se

Ty. peter, Sere? ee re

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO RESOLVE AN IM-

PORTANT QUESTION OF FEDERAL LAW WHICH HAS NOT

BEEN ,BUT SHOULD BE ,SETTLED BY THIS HONORABLE

COURT.

Congress has established a six-year time limitation as a

juridictional requirement for the Federal Court of Claims that is

inconsistent with the Fifth Amendment of the Constitution of the

United States and would defeat a goal for the Federal Court of

Claims to uphold the Constitution's Fifth Amendment's free and

independentciause “nor shall private property be taken for public

use without just compensation” which has no implied time restric-

tion. ifjurisdictional requirements are satisfied as tosubject matter

ina“takings" case, then statute oflimitations arguments should not

be used for purposes of summary judgment and the courts equi-

table tolling of the statute of limitations is required to give equal

access to the Federal Court of Claims and afford the plaintiff equal

access to the court and equal protection of the law. In the case of

the “Taking “ of the Copper Chief Mine by the Yuma Proving

Ground's restricted access and ordinance testing activities, Peti-

tioner was denied notonly her fifth Amendmentright to just compen-

sation butalso her Seventh Amendment rightto ajurytrial as wellas

her right to cross examine the Government witnesses whose

affidavits were in error as to access and the location of the Copper

Chief Mine.Petitioner was denied direct examination of her expert

witnesses who were familiar with the access to the Copper Chief

mine and equal protection of the lawor her Fourteenth Amendment

Rights as well.

CERTIORARI SHOULD BE GRANTED TO GUARAN-

TEE UNIFORMITY IN ACCESS TO THE FEDERAL

COURT OF CLAIMS AND THE PROPER USE OF SUM-

MARY JUDGMENT

“Taking” Ciaims are fact intensive and summary judgment

should not be used when there are material issues of factual

differences. The court in this case acted as a fact finder

without atrial and deprived petitioner ofher Seventh Amend-

ment Rights. Mining by its nature is a long term investment.

if the Government is allowed to deny claims of a taking by

prevention ofa mine's development within a six year period,

then the Government would be able to take almost any

mining property withoutjust compensation, as historically it

takes many years, well over six to economically develop a

mine. Jakoby [Petitioner] owned the patented claims to the

Copper Chief Mine overtwenty years having purchased the

mine from the State of Arizona in 1975 orthereabouts as an

investment for her retirement. Access had always been a

problem and Professor Burt using the Army maps showed

the lack of any road to within 3/4 of a mile to the Copper

Chief Mine on the Yuma Proving Ground. Arguments about

the lack of road which are a sine qua non of a taking were

disallowed because the lack of a road was known over six

years priorto the filing of the claim and therefore according

to Judge Bruggink’s ruling not within the statute of limita-

tions for jurisdiction within his court nor would he allow

equitable tolling of the Statute of limitations despite the

Government's hiding active land mines without informing

Petitioner about them . Jakoby walked to the mine off-road.

She wanted to keep the mine despite the lack ofa road until

she learned aboutthe danger of hidden land-mines in 1991.

Judge Bruggink stated :

“For this court to toll the statute of limitations, the

plaintiff" [Petitioner] “must demonstrate that the

Government “has concealed its acts with the’

result that plaintiff [Petitioner] is unaware

of their existence or that [the], injury

was ‘inherently unknowable’ at the

accrual date.' Japanese War Notes

178 Ct. Cl. 630, 634,

373 F.2d 356, 359, cert. denied 389

U.S. 971, 88 S. Ct. 466, 19 L. Ed.2d 461

(1967).Under this standard, the subjective

interpretations of the facts by the

plaintiff do not matter and ignorance

of a claim cannot, alone, form the

basis for tolling.Catellus, 31 Fed. Cl. at

405 (citing Coastal Petroleum Co. v.

United States, 228 Ct. Cl. 864,866

(1981))."

This standard is inapposite to that of the standard for

summary judgment All reasonable inferences must be

drawn against the party whose motion for summary

judgment was granted by the lower court, Mingus Con-

i : ited S 812F 2d 1387, 1390 Fed

Cir 1987. The evidence ofthe non-moving Party is to be

believed and all factual inferences are to be drawn in its

favor, Inc. v. United S 6 F3d

1539, 1541 (Fed Cir 1993). The court disallowed all

factual inferences from being drawn concerning danger

from hidden land-mines and off-road travel across a

proving ground in Petitioner's , the non movant party's

favor. The accrual date is when all events that fix the

date have taken place. Therefore, the accrual date

should be when Petitioner was ready to bring in heavy

equipment but could not because ofa lack ofa road and

or when Petitioner wanted to sell the Copper Chief and

Sale as well as travel by heavy equipment was prohib-

ited by lack ofa road andtherewas hidden danger in off-

road travel.

“The purpose of a motion for summary

judgment is to test the intrinsic merits

of the case and to determine prior

to trial whether the parties have a

reai basis for relief or defense. Such

a motion is not a substitute for trial,

and where the record examined in

the light most favorable to the non-

moving party, shows any material

facts or factual inferences

in dispute, we have consistently

held that summary judgment is

inappropriate.”

Benton-Volvo-Metairie, Inc. v. Volvo South-west Inc..,

479 F2d 135 (Sth Cir. 1973). There was no equitable

tolling of the statute of limitations even though the Fifth

Amendment “nor shall private property be taken for

public use without just compensatien” is without any

presumed statute of limitations as it was added asa free

and independent clause following "...nor be deprived of

life, liberty, or property, without due process oflaw;" The

father’s of the constitution were not repetitious. They

believed in the necessity of an independent clause fol-

lowing the clause about due process. "Nor shall private

property be taken for public use without just compensa-

tion." This is unqualified and meant to stand alone. Judge

Smith has been quoted in the Washington Post as

saying:

“Every free government can be judged

by the degree to which it respects the life,

liberty and property of its citizens," “the

United States stands tall among the nations

because it is a just nation.”

CERTIORARI SHOULD BE GRANTED TO GUARAN-

TEE JUST COMPENSATION IN REGULATORY TAK-

INGS OF MINERAL RIGHTS

Mining in the past has been a very important factor in

the developmentof westem states and particularly Arizona.

The Yuma Proving Ground took by eminent domain over

3179 acres which lies within a mineralized belt of Arizona.

There are other patented mines that have been "taken" by

the proving ground and there are valuable other lands

containing mineral wealth that have been taken by the

Government or prevented from development by regulatory

takings because of national parks or to preserve other

natural resources or endangered species.

At the time the Yuma Proving Ground took the desert

land by eminent domain for ordinance testing in 1950, the

real mineral wealth of the area was largely undetermined.

There were several patented mines such as the Copper

Chief Mine within the geographic confines of the Yuma

Proving Ground but they were not being actively mined at

the time. Without modern heavy equipmentand good, well

graded, wide roads the mines were not economical butwith

the adventof open pit mines, heavy equipment, well graded

roads and newtechnology suchas heap leaching, formerly

uneconomical mines would become valuable. Heap leach-

ing developed at the time Jakoby acquired the Copper

Chief Mine from the State of Arizona in 1975 and new over

two-four hundred ton ore carrying caterpillar trucks have

been developed and computerized, maximizing economi-

cal haulage of even low grade ore in open pit mines. The

Copper Chief had a valuable Chrysocolla ore deposit

already mined ready for sale, which could not be hauled out

across the Proving Ground because of the lack of a road

and the dangerfrom off-road travel from hidden active land-

mines placed on the Proving Ground north of Cibola Road.

The Governmentadmitted the placement ofthe hidden land-

mines north of Cibola Road in March of 1991.

The Federal Court of Claims used an arbitrary and capri-

cious standard in deciding all arguments against summary

judgment such as a lack of road of being inadmissible

because it had been known for over six years that off-road

travel was necessitated by the lack of any road. Off-road

travel was dangerous when the Governmentstarting experi-

menting with locating hidden land-mines using new infra-

red technology during Desert Storm.

The danger to Jakoby came from off-road travel

necessitated by the lack of any road within a mile of her

property. Howeverthe placement ofhidden land-mines was

unknown. Thecourtheld that Petitioner did not show howthe

land-mines interfered with access. The location of the land-

mines was unknown so that in Petitioner's opinion all ac-

cess was cut-off. The court believed that Jakoby should

have asked where the land-mines were located. When the :

Government was asked, itfirst denied the presence of land-

mines. Then the Governmentsaid they posed no danger to |

travel on Cibola Lake Road by affidavit. Jakoby had to travel :

off-road. The Government affidavit stated that" there would

have been no reason for hertocross the land minetestarea |

to access her properties". However, Petitioner could have

shown that both Mr. Lopez and Mr. Aibert were misinformed

as to the location of the Copper Chief Mine and various ore

deposits. Avideo showing maps demonstrating access by

a proffer of Professor Burt's expected testimony was not

allowed by the Federal Court of Claims because of the

Government's objection that it did not comply with Appendix

H and Rule 56f of the Rules of the Federal Court of Claims.

The affidavit of Mr. Eusebio Lopez stated:

“ There would have been no reason for her

[Petitioner-Jakoby ] to cross the land-mine

test area."

Petitioner was not allowed any cross examination of Gov-

ernment witnesses or direct examination of her own expert

witnesses.

Thecourt noted that “even if it were to accept the video taped

interview of Professor Burt, there is no indication in that

interview that Ms. Jakoby was ever physically denied ac-

cess to her property because of the land-mine testing at

YPG. Although Professor Burt points out that a possible

route to plaintiff's property "might" have taken her into, or at

least close to, the land-mine field, his statements do not

indicate that she was denied full access to her he san

Petitioner had a sworn affidavit under threat of perjury

from Professor Donald Burt stating :

“ Clearly the presence of the Yuma Proving

Ground has thus far prevented the

development or even evaluation by drilling

of gold or copper mines in the confines of

the Yuma Proving Ground, even though

similar areas outside of the proving ground

have many developed mines and good

road and air access."

Jakoby was denied her Seventh Amendment Rightto atrial

to resolve material issues of factual dispute as to the

prevention of development of the Copper Chief Mine or a

regulatory taking of her interest in the Copper Chief Mine

and also denied her Fifth Amendment Rightto just compen-

sation for this taking. The Appellate Court should not have

affirmed the Federai Court opinion as there was an abuse

of discretion in the evidentiary findings which were not

amenable to summary resolution. Furthermore the law was

incorrectly applied to undisputed facts.

in Civ 72-339 PHX A COMPLAINT IN CONDEMNA-

TION was filed in the United States District Court for the

District of Arizona by the United States of America against

3, 179.94 acres of land more or less in the County of Yuma

State of Arizona; M.S. Horne, etal., and UNKNOWN OWN-

ERS, as Defendants. The Copper Chief Mine was part of

tract 317

see A2. Petitioner acquired the interest of the State of

Arizona under 7. Supra.

“The County of Yuma, Arizona, and the State

of Arizona, may have or claim an interest in

the property by reason of taxes and

assessments due and exigible.”

8. In addition to the persons named, there

are or may be others who have or may

claim some interest in the property to

be taken, whose names are unknown

to the plaintiff and such persons are

made parties to the action under the

designation “unknown owners”.

9. The plaintiff has been in possession

and occupancy of those lands

designated as Tracts Nos. C-301,

C-302,C-303, 317, 318, and 319

condemned in this cause under

No. Civ. 6382-Phx. (WEC) .......

Wherefore, the Plaintiff [United States]

demands judgment that the property

be condemned and that just compensation

for the taking be ascertained and

awarded and for such other relief

as may be lawful and proper."[ see A2]

Since Petitioner has an interest in tract 317 which is part of

the Copper Chief Mine as well as other property within the

confines ofthe YPG The Federal Court of Claimsincorrectly

interpreted the law in finding that no taking had taken place.

Petitioner was unableto sell herinterest inthe Copper Chief

Mine after she retired. Therefore she demanded just com-

pensation after 1991 or well within the six year statute of

limitations and the Fifth Amendment should quarantee

peltitioner just compensation for a taking.

= oe

A regulation that leaves aiand owner without economically

beneficial use is a per se taking of property requiring

compensation, Lucas v. South Carclina Coastal Council

112S.Ct. 2886 (1992). While property may be regulated to

a certain extent, if regulation goes too far, it will be recog-

nized as ataking. The Supreme Court found in Pennsyiva-

nia Coal v. Mahon, 260 U.S. 393,415 (1992) a taking

because a Statute that prohibited subsidence totally de-

stroyed the right to mine coal. This is similar to the YPG

ordinance testing activities and the lack of a road requiring

off-road travel that prevented the development and sale of

the Copper Chief Mine and an already mined Chrysocolla

ore dump. This frustrated and prevented Petitioner's “in-

vestment-backed expectations”. The lower court refused to

toll the six year statute of limitations jurisdictional require-

mentand so denied the regulatory taking as the absence of

aroad was “open and notorious” and the ordinance testing

was known to Petitioner in the 1970s after she acquired the

Copper Chief Mine. The decision in Lucas does not square

with the statute of limitations. Mining developments are

necessarily long term The Copper Chief Mine was a long

. term investment for retirement. The Fifth Amendment re-

quires due process and just compensation for a taking of

property. The Federal Court of Claims should have deter-

mined Governmentiiability and a declaratory judgment for

Petitioner. The United States Court of Appeals for the

Federal Circuit should have reversed the summary judg-

ment for the Government rendered by the United States

Federal Court of Claims because of material factual issues

in dispute which would warranta trial as well as the incorrect

application of the law to undisputed facts.

CERTIORARI SHOULD BE GRANTED TO

GUARANTEE EQUAL PROTECTION OF THE LAW

Petitioner did not waive her right to a “takings” cause of

action because she signed a waiver not to hold the United

States responsible for damages to property or injuries

.. arising from government activities...in order to cross the

Yuma Proving Ground and access her property onthe Yuma

Proving Ground on February 21 and February 22, 1976.

Jakoby wanted to keep the property and develop it as an

investment for herfuture retirement. She was aware that the

YPG had taken all the surrounding land but had inadvertently

not taken the Copper Chief Mine because the Army Corps

of Engineers had mistakenly located the Copper ChiefMine

north of the boundary of the facility. In Civ 72-339, A-2

Complaint in Condemnation the United States had initially

omitted it in the 3179.94 acres that it had taken. Itwas added

in 1975 after Petitioner showed the Army Corps of Engi-

neers that the Copper Chief Mine was within the YPG. The

Petitioner gained the State of Arizona's interest in the

property by reason of taxes and assessments under 7.

supra by acquiring three deeds to the Copper Chief Mine at

a delinquent tax sale auction. The time of the “taking” is in

dispute. The fact that the Government operated the YPG as

a military and training facility since the1940's does not set

the date of the taking. Even though the Government brought

public condemnation proceedings to secure the leaseholds

to mining claims prior to Jakoby’s purchase of the Copper

Chief Mine this does not establish the time of the taking as

Jakoby purchased her rights from the State of Arizona's

rights in 1975. A cause of action for a compensable taking

of property under the Fifth Amendment accrues when all of

the events that fixthe Governmentliability have occurred and

the property owner was or should have been aware of their

existence. Hopland Band of Pomo Indians, 855 F 2d. at

1577. Eallini v. United States, 56 F.3d

1378,1380 (Fed.Cir. 1995), cert. denied- U.S.-,116S. Ct.

2496 (1996). Petitioner knew that the YPG surrounded her

mining claims and some of its activities were open and

notorious. However, Jakoby wanted to keep her mines,

assess and develop them despite the lack ofa road andthe

firing of weapons during duty hours. She thoughtthe mines

could be developed despite these serious restrictions and

proceeded to do the necessary field work to develop the

mine by foot even though there was no road and during off-

duty hours when she was assured by the ground and space

control that no shelling or shooting of armaments was being

done. The taking accrues when all the events that fix the

Government's liability have occurred. The Governmentact

fixing the United States liability occurred in March 1991

when the United States hid over thirty six active land-mines

off-road where Petitioner had to travel todo her field geology

and drive a truck to remove an already mined Chrysocolla

ore deposit.

The Government did notinform Jakoby that itwas hiding

land-mines and at first even denied to Jakoby that there

were any land-mines on the Yuma Proving Ground. It was

notuntil this time that Jakoby realized that technology ofwar

fare had so changed that there were unknown and hidden

hazards. Desert Storm had resulted in new weapons that

might be tested , including infra-red to detect hidden land-

mines or possibly other weapons of mass destruction such

as bacterial warfare. The YPG had the rightto test whatever

it felt was necessary within the boundaries of the YPG and

could not be relied upon to inform Jakoby. Jakoby had

accidentally heard about the hidden land-mines from a

physicist who had gotten sick on the YPG and had to leave

the experiment. Jakoby had not been informed by the

Government of the land-mines and the lower court held

“Absent an actual danger to civilian traffic [the YPG]

was under no obligation to inform Ms. Jakoby

of its testing activities."

There had always been some danger to Petitioner while on

the YPG or whywould the Government have required her to

sign a waiver in order to cross into the YPG. However, the

risk was unacceptable when the YPG began testing hidden

land-mines and labelled the patented mining claims on the

map abandonned. Petitioner was unable to sell the Copper

Chief Mine and was not allowed discovery as to what other

owners had been paid for their mineral rights. Mr. Reichardt

of the Army Corps of Engineers had said he would not tell

Petitioner what amountthe various mineral rights had been

evaluated for by AIM. This knowledge was not obtainable.

However, Jakoby assessed the value of mineral rights tothe

Copper Chief Mine at $20,000,000 and she owned two

thirds of a one-half interest in the property. The Federal

Court of Claims ruled against a necessary joinder of the

other owners of the Copper Chief Mine because the lower

courtdetermined that Petitioner's claimofa" Taking” failed.

However, Jakoby should have been allowed to determine

what other non-parties were paid for their interest as she

wanted to sell the property and could not because of the

Government having taken her mineral rights without just

compensation in Civ 72-339 Phx Complaint in Condemna-

tion.

CONCLUSION

For the foregoing reasons, Petitioner respeci.uciy prays

that her petition for a writ of certiorari be granted.

Respectfully submitted,

Date: Ruth Kerr Jakoby, M.D.,F.A.C.S.,J.D.

April 28,1998 2610 Blaine Drive

Chevy Chase,

Md., 20815

(301) 589-0643

APPENDIX

William C. Smitherman

United States Attorney

Richard S. Allemann

Assistant United States Attorney

5000 Federal Building

Phoenix, Arizona 85025

Telephone (602) 251-3131

Attorneys for Plaintiff

IN THE UNITEDSTATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, )

Plaintiff,

WEC

CIV 72-339 PHX

vs.

3,179.94 ACRES OF LAND, COMPLAINT IN

more or less, in the County of CONDEMNATION

Yuma, State of Arizona;

M.S.Horne, et al., and

UNKNOWN OWNERS,

Defendants.

ee a a a

1. This is an action of a civil nature brought by the United States

of America at the request of the Acting Secretary of the Army forthe

taking of property under power of eminent domain and for the

the ascertainment and award of just compensation to the owners

and parties in interest.

2. The authority for the taking is the Act of

Congress approved February 26, 1931 (46 Stat. 1421,

40$U.S.C.258a), and acts supplementary thereto and

arnendatory thereof and under the further authority

of the Act of Congress approved August 1, 1888 (25

Stat. 357, 40 U.S.C. 257);Section 2663 of Title 10,

United States Code, which authorizes the acquisition

of land for military purposes. Funds for such

purposes will be made available by the Department of

Defense Appropriations Act for 1973, or, if not

enacted prior to July 1, 1972, by Joint Resolution

of Congress.

3. The use for which the property is to be taken

is for military purposes in connection with Yuma

Proving Ground in Yuma County, State of Arizona.

4. The interest in the property to be acquired

is the estate taken for a term of years beginning July

1, 1972 and ending March 31, 1973, extendible for

yearly periods thereafter, at the election of the

United States until March 31, 1997, notice of which

election shall be filed in the proceeding at least

thirty (30) days prior to the end of the term hereby

taken, or subsequent extensions thereof,together

with the right to remove, within a reasonable time

after the expiration of the term taken, or any

extension thereof, any and all improvements and

structures heretofore or hereafter placed thereon by

or for the United States; subject, however,to

existing easements for public roads and highways, —

public utilities, railroads and pipelines.

5. The property so to be taken is described as

follows, to wit:

TRACT NO. C-301

The southwest quarter (SW 1/4) of

Section Twenty-two (Sec. 22),

Township Five South (T5S), Range

Fifteen West (R15W),Gila and

Sait River Meridian, Yuma County

Arizona.Containing 160 acres,

TRACT NO. C-302

All of Section Thirty -Six (Sec. 36), Township

Five South (T5S) , Range Sitteen West (R16W)

Gila and Salt River Meridian, Yuma County, Arizona.

Containing 671.08 acres, more or less.

TRACT NO. C-303

All of Section Thirty-two (Sec. 32), Township Five

South (T -5S), Range Fifteen (R15W), Gila and Salt

River Meridian, Yuma County, Arizona. Containing

669.92 acres, more or less.

TRACT NO. C- 310

All of Section Sixteen (Sec. 16), Township

Seven South (T7S), Range Twenty West (R20W),

Gila and Salt River Meridian, Yuma County, Arizona.

Containing 640.00 acres, more or less.

TRACT NO. C- 311

All of Section two (Sec.2), Township Seven South

(T7S), Range Twenty West (R20W), Gila and Salt

River Meridian, Yuma County, Arizona. Containing

638.36 acres, more or less.

TNO. C-316

The Northeast quarter of the Northeast quarter

(NE 1/4 NE 1/4) and the South one-half of the

Northeast quarter (S 1/2 NE 1/4), Section

Thirty-Two (Sec. 32), Township One North

(T1N), Range Twenty-one West (R 21W), Gila

and Sait River Meridian, Yuma County, Arizona.

Containing 120.00 acres, more or less.

TNO. 317

NORTH MODEL, SOUTH MODEL and GREENBACK

Lode Mining Claims designated as Mineral Survey No.

2369; and COPPER PRINCE, GOLDEN DREAM and

QUEEN OF ARIZONA Lode Mining Claims designated

as Mineral Survey No. 2340; embracing a portion of

unsurveyed Public Domain in Township Two North (T2N),

Range Twenty-one West (R21W), Gila and Salt River

Meridian, in the Weaver mining District, Yuma County,

Arizona, according to the United States Patents recorded

July 6, 1920, in book 50 of Deeds, pages 254 and

259, respectively, in the Office of the County Recorder,

Yuma County, Arizona. Containing 117.21 acres, more or

less.

TRACT NO. 31

The HERCULES, SELF DEFENSE and GLADIATOR

Lode Mining Claims designated by the Surveyor General

as Lot No. 2339; embracing a portion of unsurveyed

Public Domain in Township Two North (T2N), Range

Twenty-One West (R21W), Gila and Salt River Meridian,

in the Weaver Mining District as set forth in Patent from

the United States of America, recorded July 6, 1920, in

Book 50 of Deeds, page 251, in the Office of the

County Recorder, Yuma County, Arizona.

Containing 61.88 Acres, more or less.

TRACT NO. 312

The CINNEBAR NOS. 1,2,3,4 and 5, Lode Mining Claims

designated by the Surveyor General as Lot No. 2123;

embracing a portion of unsurveyed Public Domain in

Township Two North (T2N), Range Twenty West (R20W),

Gila and Salt River Meridian, in the Weaver Mining District

as set forth in Patent from the United States of America

recorded November 23, 1906, in Book 23 of Deeds, page

139, in the Office of the County Recorder, Yuma County,

Arizona.

Containing 101.49 acres, more or less.

6. The persons having or claiming an interest in the property

whose names are now known are:

TRACT NO. C-301

M.S.Horne and Maurine D. Horne

James Stewart Co., an Arizona Corporation

EA Secs Oca heer aye tee tp

th Porn ge

TRACT NO. C-302

State of Arizona

M.S. Horne and Maurine D. Horne

James Stewart Co., An Arizona Corporation

TRACT NO. C-303

State of Arizona

M.S. Horne and Maurine D. Horne

James Stewart Co.. an Arizona Corporation

TRACT NO. C-310

State of Arizona

TRACT NO. C-311

State of Arizona

TRACT NO. C-316

State of Arizona

TRACT NO. 317

Frank Paselk

Gerald W. Hunt, Administrator of the

Estate of Eleanor V. Stafford, deceased

Unknown heirs and/or devisees of Eleanor

V. Stafford deceased

Grace S. Carter Hopkins

Jack C. Fisher and Leta Fisher

7. The County of Yuma, Arizona, and the State of Arizona,

may haveor claim an interest in the property by reason oftaxes and

assessmenis due and exigible.

8. In addition to the persons named, there are or may be

others who have or may claim some interest in the property to be

taken, whose names are unknown to the plaintiff and such persons

are made parties to the action under the designation “unknown

owners”.

9. The plaintiff has been in possession and occupancy of

those lands designated as Tracts No. C-301, C-301, C-303, 317,

318,319 condemned in this cause under No. Civ.6382-Phx. (WEC).

WHEREFORE, the plaintiff demands judgment that the

property be condemned and that just compensation for the taking

be ascertained and awarded and for such otter relief as may be

lawful and proper.

William C. Smitherman

United States Attorney

“s/ Allemann”

Richard S. Allemann

Assistant United States Attorney

5000 Federal Building

Phoenix, Arizona 85025

In the United States Court of Federal Claims

No. 96-276L

(Filed: April 25, 1996)

RAEN CAAA AAAE SHAK CREE AEE LEAK EAE RAE EER

RUTH KERR JAKOBY,

Plaintiff,

THE UNITEDSTATES,

Defendant.

ORDER

i Plaintiff filed her complaint on April 22, 1996. in Count |

; she alleges that the United States, acting through the Army

f Corps of Engineers, took her interests in a copper mine.

Such an allegation states a claim within the jurisdiction of the

court. The other two counts of the complaint, one for

reckless endangerment, the other for tortious interference,

are notwithin this court's jurisdiction. Nor are claims before

this court tried to a jury.

Aciaim for a constitutional taking must be brought within

six years of the date of the claimed taking, unless the

limitation period was tolled due to concealment or inherent

unknowability. See 28 U.S.C. 2501; La Mear v. United

States, 9Ci. Ct.562 (1986). The complaint does not allege

what precise events constituted a taking, or when they

occurred. Because the attachments to the complaint sug-

gest that the events complained of occurred in the 1970's

and 1980's, however, the court is concerned that plaintiff

may be unable toestablish a taking within the last six years.

Accordingly, the following is ordered:

1. Counts 2 and 3 are dismissed.

2. The request for a jury trial is denied.

3. Plaintiff is directed to file an amended

compiaint. It is not necessary to

re-allege those facts alleged in the

present compiaint. Plaintiff is

directed, however, to more specifically

allege the events that constituted a

taking, and to furnish the court in the

amended compiaint with the plaintiff's

best understanding of when those

events occurred and when she learned

of those events. The amended

complaint must be filed by May 24, 1996.

4. Defendant's answer or other response

will be due sixty days after the

Clerk's service of the amended

complaint. Thereafter, plaintiff is

responsible, pursuant to the Rules of the

Court of Federal Claims, for serving

defendant any future filings.

"s/ Eric Bruggink"

ERIC G. BRUGGINK

Judge

A10

JAKOBY v. U.S.

cite as 38 Fed. Cl. 192 (1997)

In the United States Court of Federal Claims

Ruth Kerr Jakoby, Plaintiff,

United States, Defendant

No. 96-216L.

United States Court of Federal Claims

June 23, 1997.

Ruth Kerr Jakoby, Chevy Chase,MD.., pro se.

Lewis S. Wiener, United States Department of Justice, Wash-

ington D.C. for defendant. Anne C. Gamson, United States Army

Corps of Engineers, Phoenix, AZ. of counsel.

OPINION

BRUGGINK, Judge-

This takings case alleges that the United States physically

restricted all access to the plaintiffs patented mining claims,

which are wholly located within the boundaries of the Yuma

Proving Ground-a military testing facility run by the United States.

1. The court notes that, although the plaintiff is proceeding prose,

she holds a juris doctor degree from Northern Virginia Law School.

She has further represented to the court that she once served as

acting dean of the Antioch School of Law.

A11

Specifically the plaintiffclaims that the Government denied access

to her mining claim (1) by failing to maintain an adequate road

across the Yuma Proving Groundand (2) by conducting land-mine

tests in undisclosed “off -road" areas of the Yuma Proving

Ground, which constructively prevented access to the mining

claim. The matter is presently before the court on the defendant's

motion for summary judgment and the plaintiffs motion for

declaratory judgment. Oral argument is not deemed necessary.

For the reasons discussed below, the Government's motion is

well taken.

Background

On or about June 20, 1975, the plaintiff, Ruth kerr Jakoby,

acquired a one-half interest in certain property and patented

mining claims wholly located within the boundaries of the Yuma

Proving Ground (YPG) in Arizona. The YPG is operated by the

Government as a facility for various military projects, including the

testing of explosives and other munitions. At the time Ms. Jakoby

acquired her interest, the YPG was being openly operated for such

military testing. On December 6, 1985, Ms. Jakoby assigned one

third of her one-half interest in the Copper Chief Mine (‘Copper

Chief"), an undeveloped mine located on the property in question,

2. Defendant previously moved to dismiss on substantially the

same grounds. Oral argument was held November 26, 1996. At

that time, the court denied the motion to dismiss and suggested

that defendant file a motion for summary judgment.

A12

et RIN OIE Bila

to Northern Virginia Law School?

In 1982, Ms. Jakoby entered into lease DACAO9-5-82-152

with the United States, through the Department of the Army Corps

of Engineers. The lease covered "Tract 317", within which the

Copper Chief is located, and expressly permitted the plaintiff to

develop mining claims upon the subject property but allowed the

Governmentto periodically order the property vacated upon seven

days notice. The Government paid $1200.00 per year for the

restriction and other rights on the property, but never actually

required the property to be vacated during the lease term. On July

28, 1985, the Government's lease of plaintiff's property expired

and was not renewed.

Ms. Jakoby initiated the present action on April 22, 1996,

alleging a taking under the Fifth Amendment to the United States

Constitution. Because of initialconcerns abouta timeliness of Ms.

Jakoby's claims, the court, by its Order of April 25, 1996, requested

that the piaintiff file an amended complaint “ to specifically allege

the events that constituted a taking, and to furnish the court the

amended compiaintwith the piaintiff's best understanding of when

those events occurred and when she learned of those events. “

Plaintiff filed her amended complaint on May 14, 1996, claiming

that her property rights in the Copper Chief Mine were taken by the

Government through its failure to provide or allow meaningful

access to the site. Specifically Ms. Jakoby complains that there is

not an adequate roadway by which she can access her mine. This

lack of adequate passage allegedly prevents her from developing

3. It isnot clear tothe court, at this point in the litigation, who owns

the remaining interests in the subject property. The Government

has raised the possibility that indispensable parties may be

absent from this proceeding. However, because the court finds

that no taking claim has been stated by the plaintiff, it is unneces-

sary to further address this issue.

Ai3

the full potential of the mine’s resources because mining equip-

ment-cannot be driven in and out of the property. The absence of a

complete roadway allegedly requires plaintiff to proceed on footfor

“at leasta mile"in order to gain access to her property. in addition,

the air space above the YPG is restricted, which allegedly prevents

the use of helicopters for moving equipment. Such lack ofaccess,

she claims, amounts to a taking of her property for which she is

entitied to just compensation. Her amended compiaint was impre-

cise as to the date that the “taking” was completé.

To satisfy both the court's, and defendant's , statute of limitations

concerns , Ms. Jakoby complains-for the first time in her response

to the Government's motion for summary judgment-that itis unsafe

to cross the YPG "off-road" because of the possiblity of unexploded

land-mines. Ms. Jakoby argues specifically thata 1991 land-mine

test conducted at the YPG by the Government-the details of which

were allegedly never disclosed to Ms. Jakoby -made it construc-

tively impossible for her to access her property. Such a construc-

tive denial of access to her property, she asserts, is a taking for

which she should be compensated.

For its part, the Government responds that it has not taken any

action whatsoever with respectto plaintiff's property since its lease

expired in 1985. It submits affidavits from three YPG officials as

evidence thatthe plaintiff now has, and has had since 1985 , full and

complete access to her property within the YPG. The Govemmernt,

4. inher resporise brief Ms. Jakoby makes numerous references

to the fact that former President George Bush recently made a

widely-reported parachute jump at the YPG and was allowed to fly

over the restricted airspsace to his jump site-airspace that Ms.

Jakoby says she may not utilize. However, there is no evidence,

and Ms. Jakoby has not argued that she has ever requested use

of the air space above the YPG for access ot her mining claims.

A14

38 FEDERAL CLAIMS REPORTER

relying on these affidavits, argues that no event sufficient to state

a claim for a taking has occurred within the applicable six year

statute of limitations period, and that land-mine tests conducted

during 1991 at the YPG in no way endangered Ms. Jakoby or

inhibited her access to the Copper Chief. The Government's

stated position is that it does not want possession of the Copper

Chief and that Ms. Jakoby is free to develop the property as she

wishes.

Discussion

[1] Pursuant to 28 U.S.C. 2501 (1 992), “Every claim of which

the United States Court of Claims has jurisdiction shall be barred

unless the petition thereon is filed within six years after such claim

firstaccrues." The plaintiff's complaint was filed on April 22, 1996.

Thus, any claim that first accrued prior to April 22, 1990, cannot

now be heard by this court. “A cause of action first accrues when

‘all the events which fix the governments liability have occurred

and the plaintiff was or should have been aware of their

existence'." Catellus Dev. Corp. v. United States. 31 Fed. Cl.

399,405 (1994) (quoting Hopland Band of Pomo indians v.

United States, 855 F 2d. 1573, 1575 (Fed. Cir. 1988)).

[2] The plaintiffasserts thata taking has occurred because there

is not an adequate road or passage across the YPG by which to

access the mining property . However, there is no evidence that

there ever was such a road , or rational expectation that the

Government would provide such a road. Ms. Jakoby represents

that she did not know that the mine was located within the YPG

when she purchased the rights to the property in 1975. Accord-

ingly, any investment-backed expectations that were held by the

plaintiff involved mere speculation regarding the availability of

A15

JAKOBY v. U.S.

Cite as 38 Fed. Ci. 192 (1997)

access tothe property. There is also no evidence that, subsequent

to her purchase, she has ever asked the Government for permis-

sion to build such a road or asked the Government to build or

assist her in building, a road to the mining property.

In any event, Ms. Jakoby admits that she learned of the alleged

difficulty inaccessing her property sometime in the 1970's, shortly

after her purchase. Thus, without addressing the merits of the

plaintiff's claim of entitiementtoa Government-provided roadway ,

the court holds that such a right of access, if it existed, was denied

more than six years prior to the filing of the plaintiffs complaint.

In a previous brief , addressing the Government's failed motion

to dismiss, plaintiff asked that the statute of limitations be tolled

because of concealment by the Government of "secret actions”

and the resulting unknowability that a compensable taking's claim

had accrued. Plaintiff has reasserted this argument in briefing the

present motion, but the court holds that there is no credible

evidence to support such an assertion.

For this court to toll the statute of limitations, the plaintiff must

demonstrate that the Government “has concealed its acts with the

result that plaintiff was unaware of their existence or that [the ] ...

injury was ‘inherently unknowable’ at the accrual date". Japanese

War notes Claimants Ass'n v. United States, 178 Ct. CI.630, 634,

373 F.2d 356,359, cert. denied 389 U.S. 971, 88 S. Ct. 466, 19

L.Ed.2d 461 (1967). Underthis standard, the subjective interpre-

tations of the facts by the plaintiff do not matter and ignorance of a

claim cannot, alone, form the basis for tolling. Cate/lus, 31 Fed. Cl.

at 405 (citing Coastal Petroleum Co. v. United States, 228 Ct. Cl.

864, 866 (1981)). in Catellus, the court directed that " [where the

actions ofthe government are open and notorious, we have pointed

out that plaintiffis on inquiry as to its possible injury. Once plaintiff

is on inquiry that it has a potential claim, the statute of limitations

begins to run.’ id. (quoting Coasta/, 228 Ct. Cl. at 867).

A16

38 FEDERAL CLAIMS REPORTER

an adequate road or passage, were admittedly known to the

plaintiff from the first time she visited her property in the 1970's.

The absence ofa road or other passage was “open and notorious".

Plaintiff admits that essentially nothing has changed regarding

access to the property since either 1975 or 1985. Rather, in her

to sell the mine or arrange for further development.” She alleges it

was not until she decided to sell the property or further develop it

that she became aware of the taking. However, absent inherent

unknowability or concealment, none of which have been shown

here, " ignorance of the facts will not toll the statute of limitations."

Bennett v, United States, 36Fed.Ci.111,1 13(1996). Accordingly,

the court declines to toll the running of the limitations period.

[5] Theremaining question iswhetherthe complaint as amended,

alleges any event within the six-year limitations period that might

constitute a taking, and whether the Government is entitled to

summary judgment on that claim. In her response to the

in 1 Pe

J. erat swe eohghuand

unexploded ordinance, and particularlya land-mine test atthe YPG

in 1991, prevented all access to the property in question. Ms.

Jakoby claims that because the details of the test were never made

available to her, she could not be sure there were not unexploded

land-mines in the off-road areas surrounding her property.*5

Because of her lack of information, Ms. Jakoby asserts that she

5. To the extent that the plaintiff complains only generally of the

possibility of unexploded ordinance uponthe YPG, which shesays

is supported by the warning signs she observed in 1987, such

claims are untimely. Ms. Jakoby admits thatshe saw these warning

signsin 1987, more than six years priorto the filing of her compiaint

in this matter. Ms. Jakoby has notalleged thatthe Governmentever

made a secret of the fact that the YPG was being actively used for

testing military explosives and other munitions.

A17

was denied safe and reasonable access to her property and thus

constructively denied all access.

As proof of the land-mine testing, Ms. Jakoby offers the affidavit

of Katherine McGeehon , a retired public employee of California

whose connection to this case is unclear. The Government cor-

rectly points out that Mrs. McGeehon's testimony does not indicate

any actual knowledge of the tests. Rather she refers only to

hearsay statements allegedly made to her by a physicist who

helped conduct the tests. Accordingly Ms. McGeehon's affidavit

is of limited value.

In any event, the Government, in its reply brief, admits to the

testing of land-mines at the YPG in 1991. The Government offers

the affidavits of Richard Albert, Test Director and Project Engineer

for YPG and Eusebio Lopez, a mechanical engineer at YPG, both

of whom allege personal knowledge of the land-mine tests to which

Ms. Jakoby apparently refers. These affidavits indicate that the

tests were conducted with unfused mines and in locations remote

from Ms. Jakoby's property. Thus, the Government argues , there

was never any danger to Ms. Jakoby and no corresponding need

to notify her of the test details. The affidavits indicate that even

though one test was conducted “at least" one mile from Cibola

Lake Road, there was no danger to civilian traffic on that road and

thus the road was not closed. Mr.Lopezstates that he has personal

knowledge that civilians did in fact use Cibola Lake Road concur-

rently with the testing activities. The affidavits indicate thatthe only

other land-mine testing in 1991 occurred at least thirty miles from

Ms. Jakoby's mining claims.

[6] In further response to the Government's affidavits, Ms. Jakoby

has offered a video taped interview of Donald M. Burt, a Professor

of Geology at Arizona State University. The Government objects to

this video tape because Professor Burt's statements are not made

under oath and under penalty of perjury. The court agrees that the

A18&

plaintiffs submission does not comply with Appendix H and Rule

56(f) of the Rules of the Court of Federal Claims. Accordingly,

plaintiff's motion for leave to file the video tape is denied. The court

notes, however, that even if it were to accept the video-taped

interview of Professor Burt, there is no indication in that interview

that Ms. Jakoby was ever physically denied access to her property

because ofthe land-mine testing at the YPG. Although Professor

Burt points out that a possible route to plaintiffs property "might"

have taken her into, or at least close to, the land-mine field, his

statements do not indicate that she was denied full access to her

property. Professor Burtadmits that he has notbeen to the property

at issue, or attempted to access the property, since 1976.

Ms. Jakoby argues that her lack of information transiated to a

rational fear of entry onto the YPG.*6 . This lack of information, she

asserts, made it reasonable to assume that she could notcross the

YPG off-road to gain access to her property. However, Ms. Jakoby

does notallege thatshe ever asked the Goverment about the land-

mine tests prior to initiating her suitin this court. Indeed, she admits

that the Government repeatedly assured her that she had full right

of access to her mining claims. Despite these admitted assur-

ances, Ms. Jakoby informs the court that she chose not to believe

the Government. Such a choice did not , however, place a burden

upon the Government to take additional steps to satisfy Ms.

Jakoby. Absentan actual danger to civilian traffic, the Government

was under no obligation to inform Ms. Jakoby of its testing

activities. She could, at any time, have asked the Government

whether its land-mine testing posed any danger to her entry upon

6. Ms. Jakoby maintains that she learned of the 1991 land-mine

testing from an unnamed physicist who was working on the project,

but who had become ill. This physicist allegedly informed Ms.

Jakoby that such testing was taking place, but did not know the

exact location or whether the mines had been removed.

A19

the YPG for purposes ofaccessing her mining claims. She did not,

and thus cannot nowcompiain that herfear ofcrossing into the land-

mine test was reasonable.

[7] The Government has provided unrefuted evidence that it has

not imposed any restrictions on Ms. Jakoby’s right to use and

access her property within the six years prior to the filing of her

claim. The plaintiff has not offered evidence thatthe Government's

land-mine testing in 1991 blocked all access to her mining claims

atissue. The evidence is thatthe plaintiff may enter her property at

any time without authorization from Governmental authorities atthe

YPG, and may utilize trucks and explosives to develop her claims.

Accordingly, the courtfinds that no compensable taking occurred.

Conclusion

The plaintiffs June 2, 1997 motion for "leave of courtto file video

tape proffer of expert witness’ examination of new corroborative

evidence given to plaintiff by government May 1, 1997-amapfrom

government with penciled area of land mines-a genuine issue of

material fact" is denied. In addition, the court holds that there are

no genuine issues of material fact barring entry of judgment for

defendant. The plaintiff's first claimed basis for ataking action, that

there is not an adequate road to access her property, is untimely

because it first accrued, if at all, sometime prior to April 22, 1990.

The failure of the Governmentto inform the plaintiff aboutthe 1991

land-mine tests did not amount to a compensable taking because

there is no evidence that the land-mines were a physical barrier to

plaintiff's access to her property. Plaintiff's motion for declaratory

judgmentis denied. Theclerk is directedto dismiss the complaint.

No costs.

"s/ Eric Bruggink"

Eric G. Bruggink

Judge

A20

NOTE: Pursuant to Fed. Cir. R 47.6 this order

is not citable as precedent. It is a public order.

United States Court of Appeals for the Federal Circuit

97-5108

RUTH KERR JAKOBY,

Plaintiff-Appellant,

UNITED STATES

Defendant-Apellee

ON MOTION

Before BRYSON, Circuit Judge

ORDER

Ruth Kerr Jakoby moves for leave to file with this court a

videotape which was returned to her by the Court of Federal

Claims. The United States opposes. Jakoby moves for

leave to file a reply, with reply attached. Jakoby moves for

leave to file certain maps which were before the Court of

Federal Claims, which she recently altered. In her motion,

she requests certain discovery from the United States. The

United States opposes. Jakoby moves for leave to file her

appendix seven days after she files her reply brief.

A21

Jakoby sued the United States in the Court of Federal

Ciaims. The Court of Federal Claims granted summary

judgmentfor the United States. According tothe parties, the

trial court denied Jakoby’'s motion for leave to file a video-

tape proffer of an expert witness's examination of evidence.

In view thereof, Jakoby may submit the videotape to this

court for the limited purpose of supporting an argumentthat

the trial court committed reversible error in excluding the

videotape. The clerk will maintain custody ofthe videotape

so thatthe merits panel has access to the tape, if it wishes.

Jakoby's motion for leave to file altered maps is denied.

The maps, as presented to the Court of Federal Claims,

may be included in the appendix.

Accordingly,

IT IS ORDERED THAT:

(1) Jakoby's motion for leave to file a videotape

is granted.

(2) Jakoby’s motion for leave to file a reply is granted.

(3) Jakoby's motion for leave to file altered maps

is denied.

(4) Jakoby’s request for discovery is denied.

(S) Jakoby’s motion for leave to file her appendix

seven days after she files her reply brief is

granted. Jakoby is cautioned, however, not to

include any documents that were not before the

trial court.

(6) Copies of this order will be transmitted to the

merits pane! assigned to decide this case.

December 17. 1997

Date ~ “s/ William C. Bryson”

William C. Bryson

Circuit Judge

cc : Ruth Kerr Jakoby Filed U.S.Court of Appeals

J. Carol Williams, Esq. for the Federal Circuit

$8 December 18., 1997

Jan Horbaly

Clerk

4-22

re ate hie Combat

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is

not citabie as precedent. It is a public record. The

disposition will appear in tables published periodically.

United States Court of Appeals for the Federal

Circuit

97-5108

RUTH KERR JAKOBY,

Appellant,

UNITED STATES

Appellee.

DECIDED: FEBRUARY 18, 1998

Before RICH, SCHALL and GAJARSA, Circuit Judges

PER CURIAM

Ruth Kerr Jakoby (Jakoby) appeals from the decision of the

United States Court of Federal Claims in 96-CV-216 of 23 June

1997 that dismissed her complaint. We affirm.

A23

This is a case under the Fifth Amendment to the United States

Constitution claiming just compensation for an alleged taking by

the United States Government (Government). Jakoby owns at

least a portion of certain patented mining claims (mine patents) that

are wholly located within the boundaries of the Yuma Proving

Ground (YPG), which isa Government military munitions testing

facility. Jakoby acquired her interest in the mine patents in 19 75.

Various comdemnation and voluntary leases existed between

Jakoby and the government, but all these leases had terminated

by 1985. On April 22,1996, Jakoby brought this action claiming

the Government took her property interest in the mine patents by

(1) failing to maintain adequate road access to the mine across

YPG, and (2) by conducting land-mine tests in certain off-road

areas of YPG in 1991.

The Government moved to dismiss the complaint arguing that

(1) the bulk of Jakoby claims regarding access were barred by

the applicable six year statute of limitations (28 U.S.C. 2501)

since the various restrictions on access arose well before 22 April

1990--they either existed at the time Jakoby acquired the

property interest or they arose at some time during the leases

that had expired by 1985; and (2) Jakoby failed to allege sufficient

facts to show that the 1991 land-mine tests effectively prevented

access to the mine patents. After further briefing and oral argu-

ment, the courtdenied the Government's motion todismiss without

prejudice butallowed the Government tofile a motion for summary

judgment. The Government so moved, and Jakoby opposed

and cross-moved for a declaratory judgment. 1 After briefing was

completed, the court denied Jakoby's motion for a declaratory

judgment and dismissed the complaint.

1 ltappears that the allegations regarding the 1991 land-mine

tests may nothave been presented untilthis cross motion was filed

and that Jakoby never amended her complaint to include these

allegations.

A24

ORR IER On Hee OR DURA ER a AR a te

On appeal, we treat this dismissal as a grant of the

Government's motion for summary judgment. On appeal, Jakoby

raises no issue of lawor fact that was not expressly and

adequately addressed in the well reasoned opinion of the trial

court. The arguments Jakoby raises regarding the statute of

limitations are greatly inapposite. The six year statute of

limitations applies to her claim and is not tolled. See Hopiand

Band of Pomo Indians v. United States, 855, F 2d 1573, 1576-77

(Fed Cir. 1988) (six -year statute of limitations is a jurisdictional

requirement and “mustbe strictly construed"). In addition, Jakoby's

arguments regarding the effect of the land mine tests are

insufficient to support her taking claim. When faced witha

defendant's summary judgment motion, a plaintiff is not relieved

of its own burden of offering admissible evidence that if believed

would support a verdict, forthe mere existence of some allega-

tions of factual dispute will not defeat an otherwise properly

supported motion for summary judgment. See Anderson v. Liberty

Lobby, Inc. 477 U.S. 242, 108 S. Ct. 2505 (1986). Therefore,

we are not persuaded to disturb the reasoning of the trial court,

and we affirm the decision of the court for the reasons set forth

therein.

97-5108

A25

UNITED STATES CONSTITUTION (Extracts)

FIFTH AMENDMENT

No person shall....nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use without just compensation.

SIXTH AMENDMENT

In all criminal prosecutions, the acused shall enjoy the

rightto a speedy and public trial, by an impartial jury...to be |

conf ronted with the witnesses against him; to have compul- ;

sory process for obtaining witnesses in his favor, and to !

have the assistance of counsel for his defence. E

SEVENTHAMENDMENT

In suits at common law, where the value in controversy

shall exceed twenty dollars, the rightto a trial by jury shall be

preserved, and no fact tried by a jury shall be otherwise

reexamined in any Court of the United States, than accord-

ing to the rules of common law. |

NINTHAMENDMENT

The enumeration in the Constitution of certain rights

shall notbe construed to deny ordiaparage others retained

by the people.

TENTHAMENDMENT

The powers not delegated to the United States by the

Constitution, nor prohibited by itto the States, are reserved

to the States respectively, or to the people.

A26

FOURTEENTH AMENDMENT

Section 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

A27

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.