Petition for Writ of Certiorari — Fallini v. United States, 116 S. Ct. 2496 (1996) (No. 95-1257)

In The

Supreme Court of the United States

October Term, 1995

*

SUSAN L. FALLINI, and JOSEPH B. FALLINI, JR.

in each of the following capacities: as an

individual person and successor to the interest of

HELEN FALLINI as sole heir of HELEN FALLINI;

deceased; as executor of the Last Will of HELEN FALLINI;

as Trustee of the HELEN FALLINI Living Trust; and

the HELEN FALLINI Living Trust as the sole

distributee of the Last Will of HELEN FALLINI,

Petitioners,

UNITED STATES,

Respondent.

a

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

a

PETITION FOR WRIT OF CERTIORARI

¢

WiuraM F. ScHroeper, Esq.

Counsel of Record

P.O. Box 220

Vale, Oregon 97918

541/473-3141

WILLIAM ALAN SCHROEDER, Esq.

P.O. Box 267

Boise, Idaho 83701

208 /384-1627

James L. HurrMan, Esq.

Dean, Northwestern School

of Law

Lewis and Clark College

Portland, Oregon 97219-7799

503/768-6601

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Where an ongoing regulation of indetermi-

nate duration results in a taking of private prop-

erty in contravention of the Fifth Amendment,

and where there is no problem of notice to

defendant, stale claims, or lost evidence, is it

consistent with the temporary taking doctrine of

First English Evangelical Lutheran Church of Glen-

dale v. Los Angeles County, 482 U.S. 304 (1987), to

limit the period for filing a claim under the

Tucker Act to six years from the effective date of

the regulation?

To paraphrase Justice Felix Frankfurter, this case

raises the question of when a cause of action for a regula-

tory taking is born, if it proliferates, and when it dies.

United States v. Dickinson, 331 U.S. 745, 748 (1947). Are the

temporary takings which arise from ongoing regulations

of indeterminate duration to be treated, for statute of

limitations purposes, as indistinguishable from takings

which result from direct or inverse condemnation?

Susan and Joseph Fallini possess numerous vested

water rights under Nevada law, pursuant to which they

pump water to the surface and store it in tanks for the

watering of their livestock. These wells are located on

federal lands in accordance with range improvement per-

mits and grazing permits issued by the United States.

Ever since the enactment of the Wild Free-Roaming

Horses and Burros Act, 16 U.S.C. §§ 1331-1340, the Fal-

linis have been prohibited by the United States from

excluding wild horses from consuming their livestock

water supplies. As a result, the Fallinis have lost, and

continue to lose, significant amounts of water which is of

ii

QUESTIONS PRESENTED - Continued

great value and importance to their livestock operation in

the arid lands of Nevada.

In 1992, after pursuing three other lawsuits in an

effort to make the government control the wild horse

population, the Fallinis filed suit in the Federal Court of

Claims seeking compensation for property taken in viola-

tion of the Fifth Amendment to the United States Consti-

tution. Disregarding the Fallinis’ insistence that under

Lucas v. South Carolina Coastal Commission, 112 S.Ct. 2886

(1992) the court must look to Nevada law to determine

the nature and extent of the Fallinis’ water rights and

their entitlement to the water produced pursuant to those

rights, the Court of Claims found against the property

owners on the merits.

On appeal to the Court of Appeals for the Federal

Circuit, the Fallinis argued that the Court of Claims had

erred in concluding that under the Taylor Grazing Act

and the permits issued pursuant to that act, the Fallinis

had no vested property rights which were taken as a

result of the Wild Free-Roaming Horses and Burros Act.

As they had in the Court of Claims, the Fallinis argued

that under Lucas, the court must look to state law to

determine the nature and extent of their property rights.

After oral argument, the Court of Appeals vacated

the judgment of the Court of Claims and remanded to

that court with instructions to dismiss the complaint as

untimely under the Tucker Act’s statute of limitations.

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TABLE OF CONTENTS

Page

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I Se MEE BOP ida voi wn cess cies cs ccscess iii

pe ge iv

I ob ds fs sc a sdccese cv verccseecaes 1

TS eee CREE CREEL EERE Eee 1

CONSTITUTIONAL, STATUTORY AND REGULA-

Ree Beem AT ISSUE. 00.622... cence. 1

PUOeMMEEE GOP BEBE CASE... 1... cece cece csc nes 2

REASONS FOR GRANTING THE WRIT ........... 4

I CTE Siow ba w'vs ob ¥d oe ost eevee 22

re Sdn a gee a e 5 4 reba oe se hoes 8's App. 1

iv

TABLE OF AUTHORITIES

Cases

Applegate v. United States, 25 F.3d 1579 (1994)...... 20

Applegate v. United States, 28 Fed.Cl. 554 (1993) .... 20

Armstrong v. United States, 364 U.S. 40 (1960) ..4.... 13

Bates Manufacturing Co. v. United States, 303 U.S.

ee MAES Fc hs ee eee ee a tes 13

Dickinson v. United States, 331 U.S. 745

gi) CIR NERS RRs i, 5, 6, 9, 10, 14, 17, 18, 19, 20, 23

Dolan v. City of Tigard, 114 S.Ct. 2309 (1994)....... 13

First English Evangelical Lutheran Church of

Glendale v. Los ner County, 482 U.S. 304

GRD Ss 0 Pets ee bed ek Vedi eias oe = 7, 3, 23

Hendler v. United States, 952 F.2d 1364 (Fed.Cir.

PPES) £e) cvdn os dan eadbbe ciency coe een ls 8

EPP E).n'« v'n'a vein ap neg 3 ena Se b eas Heer 6

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ..8, 22

Loretto v. Teleprompter Manhattan CATV Corp,

S50: U.S. ARP CAG vicascis sexi cist ee cee 7, 22

Lucas v. South Carolina Coastal Commission, 505

CF i DS LE irae Od 0k BEV ee eee 3,9, 11

National Advertising Company v. City of Raleigh

96S BAG Sime COM CAE FIs ogists heck vere sc 20, 21

New Port Largo, Inc. v. Monroe County, 706

i ae ge | ee re ee me 20

Vv

TABLE OF AUTHORITIES - Continued

Page

Nollan v. California Coastal Commission, 483 U.S.

ey Se rr erg Verity pen y rire ih, ae

Ocean Acres Limited Partnership v. Dare County

Board of Health, 707 F.2d 103 (9th Cir. 1983)...... 20

Penn Central Transportation Co. v. New York City,

re Bek ae 28: | eer epee Tete ree: 8

Pennsylvania Coal v. Mahon, 260 U.S. 393 iy 32 ae 7

Railroad Telegraphers v. Railway Express Agency,

SOE UE Se Cee hak hoe heehee eee e eet eer vce ee 18

Richards v. United States, 369 U.S. 1 (1962)......... 14

United States v. Dow, 357 U.S. 17 (1958)............. 5

United States v. Kubrick, 444 U.S. 111 (1979)... 13, 18, 19

STATUTES

Federal Tort Claims Act, 28 U.S.C. §§ 1291, et seq.... 13

Taylor Grazing Act, 43 U.S.C. §§ 315 et seq........ ii, 2

Tucker Act, 26 U.S.C. & 1891... 0c ccccccveness li, 3, 13

Wild Free-Roaming Horses and Burros Act, 16

U.S.C. §§ 1331-1340

wipe thaw we beat as i, i, 1, 2, 3, 10, 15, 16, 19, 20, 21, 22

28 USA. & TRtae ie cecncsie. eT SST RAS ee 1

Re Rs Sb Ss hd cima sa esatedeatagespawenas 3

WSO ON oo oo ee 2,3

DECISIONS BELOW

The decision of the United States Court of Appeals,

Federal Circuit, is reported at 56 F.3d 1378 (Fed.Cir.1995),

and is reproduced in the Appendix (App. 2). The decision

of the United States Court of Federal Claims is reported

at 31 Fed.Cl. 53 (1994), and is reproduced at App. 17.

+

JURISDICTION

The decision of the United States Court of Appeals,

Federal Circuit, was entered on June 8, 1995. Petition for

rehearing was denied and suggestion for rehearing in

banc was declined on November 8, 1995. (App. 54) This

court has jurisdiction over this matter pursuant to 28

U.S.C. Sec. 1254(1).

& —

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS AT ISSUE

(a) U.S. Const. amend. V.:

. . . [NJor shall private property be taken for

public use, without just compensation.

(b) Wild Free-Roaming Horses and Burros Act, 16

U.S.C. § 1333(a):

... The Secretary is authorized and directed to

protect and manage wild free-roaming horses

and burros as components of the public

lands, .. .

(c) 28 U.S.C. § 2501:

Every claim of which the United States

Court of Federal Claims has jurisdiction shall be

harred unless the petition thereon is filed within

six years after such claim first accrues.

’

STATEMENT OF THE CASE

Under the common and statutory law of the State of

Nevada, appellants possess various vested water rights

pursuant to which they have developed a number of

water sources on federal lands for the watering of their

cattle. Appellants’ cattle graze on federal lands under

grazing permits issued by the Department of Interior

pursuant to the Taylor Grazing Act, 43 U.S.C. §§ 315 et

seq., and appellants’ water sources on federal lands have

been developed in accordance with range improvement

permits issued pursuant to that Act.

In 1971, Congress enacted the Wild Free-Roaming

Horses and Burros Act, 16 U.S.C. §§ 1331-1340, which was

intended to protect wild horses and burros as “living

symbols of the historic and pioneer spirit of the West.”

§ 1331. The Act directed the Secretary of Interior to

“protect and manage wild free-roaming horses and

burros as components of the public lands, .. . ” § 1333(a).

Pursuant to this authority, the Secretary of Interior

adopted regulations which prohibited appellants from

excluding wild horses from consuming water which

appellants had produced for their cattle.

ee

In 1992, after nearly two decades of disagreement

and litigation between appellants and the federal govern-

ment over the administration of the Wild Free-Roaming

Horses and Burros Act, in the course of which the gov-

ernment was required to create a Herd Management Area

to regulate the number of horses present on appellants’

allotment, (App. 20), appellants filed a complaint in the

United States Court of Federal Claims seeking compensa-

tion for the value of their property interest in water taken

in contravention of the Fifth Amendment to the United

States Constitution. The Court of Federal Claims, which

had jurisdiction under the Tucker Act, 28 U.S.C. § 1491,

concluded that appellants had no compensable property

interest under federal law and found for the government

on the merits. Fallini v. United States, 31 Fed.Cl. 53 (1994)

(App. 17).

Appellants appealed the trial court decision to the

Federal Circuit Court of Appeals pursuant to 28 U.S.C.

§ 1295(a)(3). On appeal, appellants relied upon this

court’s decision in Lucas v. South Carolina Coastal Commis-

sion, 505 U.S. 1003 (1992), in arguing that the Court of

Federal Claims had erred in looking to federal rather than

state law to define the extent of appellants’ property

rights. The Federal Circuit did not reach the merits, how-

ever. On the theory that appellants’ cause of action

accrued when the Wild and Free-Roaming Horses and

Burros Act was enacted, the court vacated the judgment

of the Court of Federal Claims with instructions to dis-

miss the complaint as untimely filed under the six year

statute of limitations of 28 U.S.C. § 2501. Fallini v. United

States, 56 F.3d 1378, 1383 (1995) (App. 2).

Appellants petitioned for rehearing and in the alter-

native suggested a rehearing in banc. In their petition

appellants contended that the Federal Circuit’s ruling on

the statute of limitations failed to recognize the distinc-

tion between regulatory takings, on the one hand, and

takings by eminent domain or inverse condemnation, on

the other hand. Relying upon the temporary takings doc-

trine of First English Evangelical Lutheran Church of Glen-

dale v. Los Angeles County, 482 U.S. 304 (1987), appellants

argued that at a minimum they should be able to recover

for the regulatory takings which occurred during the six

years prior to the date on which their claim was filed. The

Federal Circuit denied appellants’ petition for rehearing

and declined the suggestion for rehearing in banc. 56 F.3d

at 1378 (App. 2, 54).

REASONS FOR GRANTING THE WRIT

The Federal Circuit’s order to the Court of Federal

Claims to dismiss appellants’ Fifth Amendment takings

claim as untimely filed is inconsistent with this court’s

temporary taking doctrine as explicated in First English

Evangelical Lutheran Church of Glendale v. Los Angeles

County and with the general purposes of statutes of lim-

itations. As a consequence, appellants and other property

owners are without remedy in the federal courts for

significant violations of their rights under the Fifth

Amendment to the United States Constitution.

I. IN THE INTEREST OF FAIRNESS AND JUSTICE,

THIS COURT SHOULD ARTICULATE STAN-

DARDS WHICH ASSURE THAT THE STATUTE OF

LIMITATIONS APPLICABLE TO REGULATORY

TAKINGS CLAIMS UNDER THE FIFTH AMEND-

MENT ARE INTERPRETED AND APPLIED CON-

SISTENT WITH THIS COURT’S REGULATORY

TAKINGS JURISPRUDENCE.

As Justice Frankfurter stated in Dickinson v. United

States, 331 U.S. 745, 748 (1946), “[t]he Fifth Amendment

expresses a principle of fairness and not a technical rule

of procedure enshrining old or new niceties regarding

‘causes of action’... ” Congressional enactments which

define the nature and scope of judicial remedies for viola-

tions of Fifth Amendment rights should be interpreted

consistent with this principle of fairness. Because the

decision below is based upon precedent which does not

recognize the important distinction between a temporary

taking and a direct or inverse condemnation, it fails to

Satisfy the Fifth Amendment fairness principle.

This court’s decision in Dickinson satisfied the fair-

ness principle by tolling the statute of limitations until

the harm from a taking stabilized. Where the government

chose “not to condemn land but to bring about a taking

by a continuing process of physical events,” the Dickinson

court sought to relieve the property owner of the need

“to resort either to piecemeal or to premature litigation

to ascertain the just compensation for what is really

‘taken.’ ” 331 U.S. at 749.

Citing United States v. Dow, 357 U.S. 17 (1958), the

court below noted that the Dickinson stabilization doc-

trine has been interpreted narrowly to apply only to “a

taking by flooding ‘when it was uncertain at what stage

in the flooding operation the land had become appropri-

ated to public use.’ ” 56 F.3d at 1381. (App. 9) But, while

Dickinson clearly articulates the principle of fairness pur-

suant to which “procedural rigidities should be avoided”

in the application of statutes of limitations, 331 U.S. at

749, it is not the precedent which should control in this

case.

The difficulty which the plaintiff faced in Dickinson

was “determining the decisive moment in the process of

acquisition by the United States when the fact of taking

could no longer be in controversy.” (emphasis supplied)

357 U.S. at 748. This court’s response to the unfairness to

affected property owners was the “wait-and-see-how-

much-is-taken rule” of Dickinson. Hilkovsky v. United

States, 504 F.2d 1112, 1114 (Ct.Cl. 1974). The difficulty

which the plaintiff faces in this case is that their property

is subject to an ongoing, temporary taking of indetermi-

nate duration. This court has not yet had occasion to

conform statute of limitations application to the tempor-

ary takings doctrine of First English.

Dickinson was an inverse condemnation case. The

instant case involves a regulatory taking. Understanding

the difference is essential to a fair interpretation of the

Statute of limitations as applied to Fifth Amendment

takings claims. As the decision below evidences, the fair-

ness required by the Fifth Amendment will be realized

only if this court articulates a standard which recognizes

the critical difference between a regulatory taking and a

condemnation.

It is not surprising that the Federal Circuit and other

courts have looked to the continuing injury or stabiliza-

tion doctrine of Dickinson, whether faced with cases of

inverse condemnation or regulatory taking. Until this

court’s decision in First English, it was not clear that a

temporary taking required compensation. Most courts

assumed that whee a regulation went “too far” under the

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

for regulatory takings, the government had the choice of

paying compensation to acquire the property or rescind-

ing the regulation. By this view, every regulatory taking

which was not rescinded resulted in an inverse condem-

nation. First English made it clear that repeal of an offend-

ing regulation did not cure the taking which had occurred

while the regulation was in effect.

Prior to First English, a distinction was sometimes

drawn between physical and regulatory takings. But this

distinction is not helpful because regulatory takings often

result in physical occupation. In Loretto v. Teleprompter

Manhattan CATV Corp, 458 U.S. 419 (1982), for example,

this court found a taking where a New York law required

landlords to allow installation of cable television cables

on their buildings. Like any regulation, the New York

cable television law could be repealed or amended at any

time restoring the landlord’s right to exclude television

cables from their properties. The fact that the regulation

resulted in a physical occupation was important not

because a taking by physical occupation is different in

kind from a regulatory taking, but because physical occu-

pation violates an owner’s fundamental right to exclude

and is thus an imposition on the property owner of

sufficient magnitude to constitute a per se taking under _

the ad hoc balancing test of Penn Central Transportation

Co. v. New York City, 438 U.S. 104 (1978). In Kaiser Aetna v.

United States, 444 U.S. 164, 176 (1979) this court made

clear that the right to exclude is “one of the most essential

sticks in the bundle of rights that are commonly charac-

terized as property.”

The distinction between physical and regulatory tak-

ings fails for a second reason. Prior to First English it was

often argued “that a regulatory taking, unlike a physical

taking, is by its nature ‘temporary.’ ” “It is equally true,

however, that the government when it has taken property

by physical occupation could subsequently decide to

return the property to its owner, or otherwise release its

interest in the property.” Hendler v. United States, 952 F.2d

1364, 1376 (Fed.Cir. 1991).

But a distinction with an important difference does

exist between taking by condemnation (inverse or direct)

and taking by regulation. In the former the government

acquires title, but not in the latter. Taking by condemna-

tion is permanent or for a definite term. A regulatory

taking is by its nature temporary in the sense that repeal

of the regulation will automatically restore the status quo

with respect to the rights of the property owner.! If an

1 In Hendler, 952 F.2d at 1376, the Federal Circuit suggested

that “[a]ll takings are ‘temporary’ in the sense that the

government can always change its mind at a later time.” The

fact that the government can change its mind does not alter the

significance drawn here between taking by condemnation and

taking by regulation. Condemned property can be sold, traded

or given away, but it will require an affirmative act by the

government. It is temporary only if the government chooses to

alienate its property interest. A regulatory taking is always

offending regulation is in current effect, it is an ongoing,

temporary taking of indeterminate duration. While a reg-

ulatory taking limits an owner’s rights in property, it

does not transfer title to the government.2

The significance of this distinction for statute of lim-

itations purposes is this. A court can make a single and

reasonably accurate determination of just compensation

in a direct or inverse condemnation case. Consistent with

the purposes of the statute of limitations affecting takings

claims in federal court, this determination is best made

within six years of the taking (or of its stabilization in

those cases to which the Dickinson doctrine applies). In a

regulatory taking case, where the taking is ongoing and

of indeterminate duration, a court cannot make a single

and reasonably accurate determination of just compensa-

tion for all injury which may result from the regulation.

The court has no way of knowing whether an ongoing

regulatory taking will continue indefinitely, be altered by

amendment, or be terminated by repeal of the offending

regulation.

temporary. Most important, for the purposes of this petition, is

that ongoing regulatory takings are of indeterminate duration.

? A regulatory taking may be converted into an inverse

condemnation at the government's choice, as in Lucas v. South

Carolina Coastal Commission. Had South Carolina chosen to

rescind its coastal setback regulation, compensation to Lucas for

the temporary taking which ended with the repeal of the

regulation would have satisfied the Fifth Amendment. Instead

South Carolina compensated Lucas for the market value of the

regulated properties and thus acquired title to those properties.

That South Carolina acquired title was confirmed by the state’s

subsequent sale of the properties to a private developer.

10

A direct or inverse condemnation affects a transfer of

title to the government which allows a court to determine

the full measure of just compensation. Because title is

transferred, the full extent of injury occurs at the time of

forced transfer and its measure will be the market price

of the property at the time of transfer. Market prices

reflect current and discounted future value of property.

Thus a property owner who believes an inverse condem-

nation has occurred has six years from “the decisive

moment in the process of acquisition by the United States

when the fact of taking could no longer be in contro-

versy,” Dickinson, 331 U.S. at 748, in which to make an

effective claim for the full extent of the loss resulting

from the taking. From the time a cause of action accrues

for direct or inverse condemnation, the full extent of the

injury to the property owner is knowable and thus deter-

minable by a court.

Takings resulting from ongoing regulation are differ-

ent. Because the government does not acquire title to

property affected by a regulatory taking, the full extent of

past and future injury resulting from that taking cannot

be determined at any point during a statutory period of

six years running from the date of the enactment of the

regulation. At any point during or after the statutory

period, Congress could have amended or repealed the

Wild Free-Roaming Horses and Burros Act, or the

Department of Interior could have altered its regulations

under that Act. At any time after the resolution of this

lawsuit the Act and regulations may be amended or

repealed. Any such repeal or amendment will alter the

effect of the regulation on appellants’ property.

3

x

11

It is impossible for a court to anticipate the effects of

such future exercises of legislative and executive power.

It would offend the principle of separation of powers for

a court to attempt to do so. It is therefore impossible for a

court to determine, for all time, the losses affected by an

ongoing regulatory taking. For that reason, the statute of

limitations must be applied differently to takings result-

ing from ongoing regulations than to takings which result

in a transfer of title to the government. This is so even for

ongoing regulations with sunset provisions because such

regulations can be amended or repealed before they sun-

set, or extended after they sunset.

The court below rejected the foregoing analysis as

dependent “upon characterizing every drink by every horse

as a new and independent federal taking compensable under

the Fifth Amendment.” 56 F.3d at 1382. (App. 12) The court

argues that this would be analogous to a conclusion in Nollan

v. California Coastal Commission, 483 U.S. 825 (1987) that

“[e]very instance of a beachcomber using the public ease-

ment” across Nollan’s property constitutes a separate taking.

But the analogy is inapt for two reasons. First, in Nollan,

California required dedication to the state of an easement.

483 U.S. at 828. If the state had proceeded to compensate

Nollan and thus acquire title to an easement across Nollan’s

property, the extent of future use by the public would have

been of no further legal interest to Nollan. In this case, the

appellants have a continuing legal interest, under Nevada

law, in the water being consumed by wild horses. Second,

the property right affected in Nollan is different in kind from

that affected in this case. This is a question of state law.

Lucas, 503 U.S. at 1029. Under Nevada law, which neither of

12

the courts below have examined, appellants own every drop

of water which they capture pursuant to their water right.>

The importance of a correct application of the statute

of limitations to the particular property interests affected

by a taking is well illustrated by a hypothetical variation

on the facts in this case. Assume, as in the instant case,

that the plaintiff pumps water to the surface pursuant to

a water right held under state law. The water is stored in

a reservoir for the purposes of watering livestock and

irrigating crops. If, in the dark of the night, a tank truck

pulls up and drains the water from plaintiff’s reservoir,

plaintiff vill have a civil cause of action to recover the

water or damages equal to its value. If the relevant stat-

ute of limitations runs before plaintiff files a lawsuit, a

court would properly dismiss the claim as untimely filed.

If the plaintiff’s reservoir is drained a second time, in the

dark of another night, will the plaintiff’s failure to timely

sue in the first instance foreclose plaintiff from seeking

recompense for this second or subsequent trespasses?

Clearly not. Each draining of the reservoir, even if on

successive nights over many years, will constitute a dis-

tinct cause of action. Of course this does not mean that

plaintiff must bring a separate action for each taking. But

it does mean that he should not be foreclosed from com-

pensation for future takings on the basis of his having

failed to timely file when the very first taking occurred.

3 The court below states incorrectly that plaintiffs “contend

that under federal and state law they enjoy proprietary right in

all the water they produce. .. . ” 56 F.3d at 1379 (App. 4).

Plaintiffs have always claimed, as they must, that their water

rights are based exclusively upon the law of the state of Nevada.

13

That this analogy to relations between private parties

is instructive on the interpretation of the statute of limita-

tions applicable to takings claims against the federal gov-

ernment is clear given the purposes of the waiver of

sovereign immunity inherent in the just compensation

clause of the Fifth Amendment and in the Tucker Act.

While the court below was correct to narrowly interpret

the statute of limitations set forth in the Tucker Act’s

- waiver of immunity, it should not have “assume[d] the

authority to narrow the waiver that Congress [and the

framers of the Fifth Amendment] intended.” United States

v. Kubrick, 444 U.S. 111, 118 (1979).

_ The waiver of immunity implicit in the Fifth Amend-

ment assures that government trespass upon private

property will be treated similarly to private trespass. Just

as Anglo-American courts have long insisted that prop-

erty Owners may exclude members of the public from

their land, this court has repeatedly insisted upon the

Fifth Amendment's role in assuring that individual prop-

erty owners are not required by government regulation to

provide access to the general public. “One of the princi-

pal purposes of the Takings Clause is ‘to bar Government

from forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by the

public as a whole.’ Armstrong v. United States, 364 U.S. 40,

49.” Dolan v. City of Tigard, 114 S.Ct. 2309, 2316 (1994).

In adopting the Tucker Act, Congress was motivated

by the blatant unfairness and arbitrariness resulting from

government immunity in circumstances where private

parties are routinely liable. Bates Manufacturing Co. v.

United States, 303 U.S. 564, 571 (1938). The Federal Tort

Claims Act, 28 U.S.C. 1291 et seq., another general waiver

14

of sovereign immunity, was likewise motivated by a

desire to treat victims of tortious conduct similarly,

whether the tortfeasor is a private party or the govern-

ment. Richards v. United States, 369 U.S. 1 (1962). This

court recognized the relevance of the analogy to private

liability in applying the takings clause of the Fifth

Amendment in Dickinson. “Property is taken in the consti-

tutional sense when inroads are made upon an owner’s

use of it to an extent that, as between private parties, a

servitude has been acquired either by agreement or in

course of time.” 331 U.S. at 1385. (emphasis supplied)

The effect of the holding below is to foreclose appel-

lants from recovering for trespasses by government for

which they could recover had they been committed by

private parties. This is an unfair result which does not

conform to the noble purposes of the Fifth Amendment.

If the statute of limitations is applied to ongoing

regulatory takings of indeterminate duration in the same

manner as to condemnations, the government will be

- required to compensate for the full present value of the

affected property discounted into the indefinite future. In

other words, the government will have to compensate as

if it is acquiring title to the property. But the government

does not acquire title by a regulatory taking. If the

offending statute or regulation is repealed, the property

owner will again be free to use the property to the full

extent of the property right extant prior to the imposition

of the regulation. If the property owner is compensated

as if title has been transferred to the government, the

property owner will benefit from a significant windfall at

the expense of the taxpayers. If the property owner is

compensated as if all losses are incurred between the

ia aenciemeiesicninanisisiiliiialaiiidiiiaaiiiiaa

EL SE SE PLE Le ERY Se ya

15

enactment of the regulation and the conclusion of the

lawsuit, the property owner will not receive just compen-

sation for any future impacts of the regulation.

Thus, it is in neither the government’s nor the prop-

erty owner’s interest for the courts to treat regulatory

takings as they do takings by condemnation. The govern-

ment should compensate for no more than it has taken.

Indeed the cost of compensation will often, as it should,

influence the government’s decision with respect to

future regulations. A regulation is, by its nature, a tempo-

rary constraint on the use of property. It can be repealed

or amended at any time. Where that constraint results in

a taking, compensation should not exceed the value of

what has been taken.

Nor is it fair to the property owner to treat a regula-

tory taking like a condemnation. A property owner has

no way of anticipating the future impacts of a regulation

which can be amended or repealed at any time. Neither

do the courts have any way of determining such future

impacts. If the appellants in this case had filed their claim

within six years of the enactment of the Wild Free-Roam-

ing Horses and Burros Act, how would the trial court

have calculated just compensation for any property

taken? Jt would not be sufficient to compensate only for

that amount of water consumed by the horses up to the

time of the court’s decision, because the horses would

continue to consume water so long as the regulation

remained in effect. How would the appellants have been

compensated for any future losses resulting from the

government's regulation? The court might have ordered

compensation based upon the discounted future value of

taken water on the assumption that the horses would

16

continue to consume water at the same rate into the

indefinite future. But that approach would lead to a

clearly erroneous result on the facts in this case. The

amount of water consumed by the horses during the first

six years after enactment of the Act was far greater, on an

annual basis, than the amount of water consumed during

the years after the Bureau of Land Management’s drastic

reduction in the size of the herd which resulted from the

forced creation of a Herd Management Area in 1986. The

appellants would have been overcompensated precisely

because the application of the law changed in 1986 a fact

recognized by the Court below. (App. 9). That application

might be changed again at any time in the future. The Act

itself might be amended or repealed at any time in the

future.

As both the facts in this case and the preceding

hypothetical variation on those facts demonstrate, it is

impossible to measure, at a single point in time, all of the

losses resulting from an ongoing regulatory taking. If the

statute of limitations is interpreted to require that losses

from a regulatory taking be determined at a single point

in time, for all time, the courts will seldom achieve the

constitutionally mandated requirement of just compensa-

tion. Sometimes the property owner will be undercom-

pensated and sometimes the government will pay too

much. In the aggregate it may balance out over time and

property owners, but the Fifth Amendment is about jus-

tice to individual property owners, not about just com-

pensation on average.

It might be argued that courts face a choice between

adhering to a date certain for guessing at the indetermi-

nate compensation due for an ongoing regulatory taking

17

and requiring owners of affected properties “to

resort... to piecemeal . . . litigation to ascertain the just

compensation for what is really ‘taken.’ ” Dickinson, 331

U.S. at 749. But this choice is founded on what is surely

the unacceptable assumption that the government will

not comply with its responsibilities under the Fifth

Amendment except when sued by property owners and

ordered to compensate by a court. Under a constitution

based upon the rule of law, it must be assumed that the

government will voluntarily meet its obligations under

the Fifth Amendment. When the government believes, as

it does in this case, that no taking has resulted from its

regulations, litigation may be necessary. But if, on the

merits, the trial court determines that compensation is

due for past losses suffered by appellants, the govern-

ment should be expected either to reform or repeal the

regulation to the extent necessary to avoid future takings

or to voluntarily compensate for any future injury to

property resulting from the offending regulation.

Il. THE LOWER COURT’S DISMISSAL OF APPEL-

LANTS’ CLAIM AS UNTIMELY FILED IS INCON-

SISTENT WITH THIS COURT’S LIMITATIONS

PRECEDENT AND THUS INSULATES THE GOV-

ERNMENT FROM RESPONSIBILITY FOR ITS

VIOLATION OF APPELLANTS’ PROPERTY

RIGHTS WITHOUT SERVING THE PURPOSES OF

THE STATUTE OF LIMITATIONS.

Because of the distinct nature of a takings case

involving an ongoing regulatory taking of indeterminate

duration, the lower court’s dismissal of plaintiffs’ com-

plaint does not serve the purposes of the relevant statute

18

of limitations. As this court stated in United States v.

Kubrick, 444 U.S. 111, 117 (1979), statutes of limitations

represent a pervasive legislative judgment that

it is unjust to fail to put the adversary on notice

to defend within a specified period of time and

that ‘the right to be free of stale claims in time

comes to prevail over the right to prosecute

them.’ Railroad Telegraphers v. Railway Express

Agency, 321 U.S. 342, 349 (1944). These enact-

ments are statutes of repose; and although

affording plaintiffs what the legislature deems a

reasonable time to present their claims, they

protect defendants and the courts from having

to deal with cases in which the search for truth

may be seriously impaired by the loss of evi-

dence, whether by death or disappearance of

witnesses, fading memories, disappearance of

documents, or otherwise.

At issue is whether or not there is a surviving cause

of action. As the Supreme Court stated in Dickinson, 331

U.S. at 478, “[o]ne of the most theory-ridden of legal

concepts is a ‘cause of action.’” Id. The recognition that

“[t]he Constitution is ‘intended to preserve practical and

substantial rights, not to mention theories,’ (citation omit-

ted),” id., is what led this court in Dickinson to articulate

the stabilization doctrine. Once again, this court should

recognize “the danger of determining rights based upon

definitions of ‘a cause of action’ unrelated to the function

which the concept serves in a particular situation,” id.

and thus avoid, as in Dickinson, rigid adherence to prece-

dent which will preclude the preservation of the “practi-

cal and substantial rights” of appellants.

19

The purpose of the statute of limitations is not to

protect the government against liability for the injuries it

causes. Rather the purposes are, as indicated in the pas-

sage quoted above from Kubrick:

1. to put the government cn notice to defend

within a reasonable time,

2. to free the government from stale claims,

and

3. to protect the government and courts from

having to deal with cases where the search for

truth is impaired by the loss of evidence.

None of these purposes is served by the dismissal of

appellants’ regulatory takings claim. The government has

a continuing responsibility to enforce the Wild Free-

Roaming Horses and Burros Act and thus is well

informed of the impacts of that law on affected property

owners. The government has regular interaction with

appellants in the administration of their grazing permits

and the Herd Management Area. Because the regulation

is ongoing, there is nothing stale about appellants’ claim.

The government's actions have daily impacts upon appel-

lants, and will continue to do so as long as the regulation

remains in effect. For the same reason, the search for

truth cannot be impaired by loss of evidence. The rele-

vant evidence is ready available to the trial court and to

defendants, who engage in continuous monitoring of the

wild horse population. (App. 20).

The court below was correct in concluding that the

Dickinson stabilization doctrine did not apply to the facts

20

in this case. The court erred, however, in rejecting appel-

lants’ argument that the government’s Wild Free-Roam-

ing Horses and Burros Act resulted in a continuing wrong

and that the appellants were entitled to recover for water

taken during the six years prior to the filing of the com-

plaint in 1992. The relevant analogy is to be found in the

continuing wrong doctrine, which the Federal Circuit has

elsewhere distinguished from the stabilization doctrine of

Dickinson. Applegate v. United States, 25 F.3d 1579, 1583

(1994).

The continuing wrong doctrine has been recognized

by various federal courts. “A continuing violation is occa-

sioned by continual unlawful acts, not continual ill effects

from an original violation.” Ocean Acres Limited Partner-

ship v. Dare County Board of Health, 707 F.2d 103, 106 (9th

Cir. 1983). “[T]he focus of the continuing wrong doctrine

should be on the defendants’ purported wrongful activ-

ities, and not upon the plaintiffs’ alleged suffering.

Accordingly, if the defendants’ activities constitute a con-

tinuing or additional violation of the law, then the doc-

trine applies. .. . ” New Port Largo, Inc. v. Monroe County,

706 F.Supp. 1507, 1515 (S.D.Fla. 1988) “With respect to

statutory or regulatory challenges, we have previously

found a continuing violation where regulations continued

to be applied to persons within the statutory limitations

period.” National Advertising Company v. City of Raleigh,

947 F.2d 1158, 1167 (4th Cir. 1991). The doctrine has been

applied frequently by the Federal Court of Claims in

employment and contract cases. See citations in Applegate

v. United States, 28 Fed.Cl. 554, 563 (1993).

21

Although the doctrine does not appear to have been

applied to regulatory takings, its relevance is under-

scored by the Fourth Circuit Court of Appeals in its

National Advertising opinion. Citing to its affirmance in

Virginia Hospital Association v. Baliles of “a district court

holding that ‘[t]he continued enforcement of an uncon-

Stitutional statute cannot be insulated by the statute of

limitations,’ ” 868 F.2d 653, 663 (4th Cir.), aff'd, 496 US.

498 (1989), the court described its conclusion as resting

“on the holding that ‘the limitations period cannot pro-

tect an allegedly unconstitutional program.’ ” 947 F.2d at

1167. While appellants do not assert that the Wild Free-

Roaming Horses and Burros Act is unconstitutional, they

do claim that the government has a constitutional duty

under the Fifth Amendment to compensate for the ongo-

ing taking of water to which appellants have a property

right under Nevada law. The statute of limitations should

be applied consistent with its Purposes, and not so as to

insulate the government from liability for ongoing,

unconstitutional actions.

Ill. THIS COURT SHOULD MAKE CLEAR THAT

THE ONGOING NATURE OF THE TAKING OF

APPELLANTS’ PROPERTY IS NOT DEPENDENT

UPON THE HORSES BEING AGENTS OR

INSTRUMENTALITIES OF THE UNITED STATES

GOVERNMENT.

To the extent that the lower court's holding that

appellants’ claim was not timely filed is dependant upon

its conclusion that “the horses are not agents of the

Department of Interior,” 56 F.3d at 1383, (App. 13) that

court has misapplied this court's takings jurisprudence.

22

The court below states that “[i]f the horses were

agents or instrumentalities of the United States govern-

ment, the analysis of what governmental action constitu-

ted the alleged taking might be different.” id. This

conclusion is clearly mistaken. In Kaiser Aetna there was a

taking notwithstanding that the private boaters were not

agents of the United States. In Nollan, the beach front

easement was for the use of private persons who were

not agents of the State of California. In Loretto, the cable

company whose cable occupied the side of an apartment

house was not an agent of the City of New York.

It is irrelevant to appellants’ claim that wild horses

which regularly drink water owned by appellants are not

agents of the United States. What is relevant is the gov-

ernment’s ongoing prohibition of any action by appel-

lants to exclude these wild, free agents from access to

their water, if that water is to be used to sustain their

livestock.

CONCLUSION

The court below concluded that the Fallinis’ cause of

action for a regulatory taking died six years after enact-

ment of the Wild and Free-Roaming Horses and Burros

Act. The court reached this decision notwithstanding that

the regulation in question has resulted in repeated tak-

ings of the Fallinis’ property over a long period, includ-

ing during the six years prior to the filing of their claim,

and will continue to have that effect for the indeterminate

future. The court reached this decision notwithstanding

.

4

3

=

~

;

St ait at hs

da ise

23

this court’s decision in First English Evangelical Lutheran

Church of Glendale v. Los Angeles County, 482 U.S. 304

(1987), requiring compensation for temporary takings.

The decision of the Court of Appeals falls victim to

“the danger of determining rights based upon definitions

of ‘a cause of action’ unrelated to the function which the

concept serves in a particular situation.” Dickinson, 331

U.S. at 748. This court should guard against this danger

by articulating a statute of limitations rule consistent

with recent developments in regulatory takings jurispru-

dence and with the “principle of fairness” expressed by

the Fifth Amendment. id.

Respectfully submitted,

WILLIAM F. SCHROEDER, Esq.

P.O. Box 220

Vale, Oregon 97918

541/473-3141

WitutaM ALAN ScHRoeper, Esq.

P.O. Box 267

Boise, Idaho 83701

208/384-1627

James L. Hurrman, Esq.

Dean, Northwestern School

of Law

Lewis and Clark College

Portland, Oregon 97219-7799

503/768-6601

App. 1

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

OPINION ANNOUNCING

JUDGMENT OF THE COURT

OPINION FILED AND JUDGMENT ENTERED: June

8, 1995

The attached opinion announcing the judgment of

the court in your case was filed today. The judgment was

entered pursuant to Rule 36. The mandate will be issued

in due course.

Information is also provided about petitions for

rehearing and suggestions for rehearing in banc. The

questions and answers are those frequently asked and

answered by the Clerk’s Office.

Each side shall bear its own costs.

Exhibits and visual aids shall be promptly retrieved

by the party that lodged them with this court.

FRANCIS X. GINDHART

Clerk

cc: WILLIAM F. SCHROEDER

PETER A. APPEL

JAMES L. HUFFMAN

FALLINI V US, 94-5110

(CFC - 92-809L)

App. 2

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

94-5110

SUSAN L. FALLINI, and JOSEPH B. FALLINI JR., in

each of the following capacities: as an individual

person and successor of the interest of HELEN

FALLINI as sole heir of HELENE FALLINI, deceased,

executor of the last will of HELENE FALLINI, and

Trustee of the HELENE FALLINI Living Trust and the

HELENE FALLINI Living Trust as the sole distributee

of the last Will of HELENE FALLINI,

Plaintiffs-Appellants,

Vv.

THE UNITED STATES,

Defendant-Appellee.

William F. Schroeder of Vale, Oregon, argued for plain-

tiffs-appellants. With him on the brief was William A.

Schroeder, of Boise, Idaho.

Peter A. Appel, Attorney, Environment and Natural

Resources Division, Department of Justice, of Washing-

ton. D.C., argued for defendant-appellee. With him on the

brief were Lois J. Schiffer, Assistant Attorney General, John

A. Bryson and Dorothy R. Burakrais, Attorneys. Of counsel]

was Laura B. Brown, Office of the Solicitor, Department

of the Interior, Washington, D.C.

James L. Huffman, Dean and Professor of Law Direc-

tor, Natural Resources Law Institute, Northwestern

School of Law, Lewis and Clark College, of Portland,

Oregon, was on the brief for Amicus Curiae, Water for

Life, Inc.

App. 3

Appealed from: U.S. Court of Federal Claims

Judge Harkins

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

94-5110

SUSAN L. FALLINI, and JOSEPH B. FALLINI JR., in

each of the following capacities: as an individual

person and successor of the interest of HELEN

FALLINI as sole heir of HELEN FALLINI, deceased,

executor of the last will of HELEN FALLINI, and

Trustee of the HELEN FALLINI Living Trust and the

HELEN FALLINI Living Trust as the sole distributee

of the last Will of HELEN FALLINI,

Plaintiffs-Appellants,

v.

THE UNITED STATES,

Defendant-Appellee.

DECIDED: June 8, 1995

Before MICHEL, LOURIE and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

In this Fifth Amendment “takings” case, the Fallinis,

who are engaged in cattle ranching in Nevada, argue that

the federal government has taken personal property from

them without compensation. The Fallinis contend that the

government effected a “taking” by requiring them to

provide water to wild horses living in the area in which

the Fallinis conducted their ranching activities. The Court

of Federal Claims ruled against the Fallinis, concluding

App. 4

on motion for summary judgment that they had no prop-

erty right that was taken by governmental action. Fallini

v. United States, 31 Fed. Cl. 53 (1994). We conclude that

their complaint was not filed within the applicable statute

of limitations period and that the complaint should be

dismissed on that ground.

I

The appellants, Susan and Joseph Fallini, own a 2700-

acre ranch in south-central Nevada. The Failinis’ ranch

property is located within a region known as the Reveille

Allotment, which consists of 657,520 acres of federally

owned land. Pursuant to federal permits, the Fallinis

graze cattle on the public land surrounding their ranch

property.

The Fallini family has engaged in ranching in the

area since the 19th century. Over time, they have devel-

oped a number of water sources on the public land to

water the cattle that are permitted to graze there.

Although the Fallinis do not own the land where the

water sources are located, they contend that under fed-

eral and state law they enjoy proprietary rights in all the

water they produce from the waterworks that they and

their predecessors have constructed.

In 1971, Congress enacted the Wild Free-Roaming

Horses and Burros Act, 16 U.S.C. 1331-1340, which pro-

vided for the management and protection of wild horses

and burros on public lands. The Act prohibited the

removal, destruction, or harassment of wild horses and

App. 5

burros found on public lands, and it authorized the Secre-

tary of the Interior to issue regulations providing for the

management of the wild horses and burros.

In November 1992, the Fallinis filed a complaint in

the Court of Federal Claims, contending that the govern-

ment had taken their property by requiring them “to

provide water to wild horses whenever plaintiffs pro-

vided water to their domestic livestock after December

17, 1971 [the effective date of the Wild Free-Roaming

Horses and Burros Act], on penalty of loss of their graz-

ing preference.” The Fallinis’ complaint does not describe

exactly what the government required them to do in

order to “provide water to the wild horses,” but they

elsewhere assert that they have been prohibited from

fencing their water sources in ways that would permit

cattle access to the water but prevent wild horses from

having access. In their complaint, the Fallinis alleged that

between 1971 and 1991 the cost of providing water to

wild horses that took water from the Fallinis’ developed

water sources totaled approximately $1 million.

The Court of Federal Claims granted summary judg-

ment to the government. The court first held that the

Fallinis do not own the water they produce in excess of

the amounts necessary to satisfy the cattle authorized

under their federal grazing permits. The court further

concluded that, because the government may regulate the

use of the public lands on which the Fallinis’ cattle are

allowed to graze, the Fallinis “did not have a compens-

able expectancy in exclusion of wild horses and other

wild animals from the allotment or exclusive use of the

forage and water.” Fallini v. United States, 31 Fed. Cl. at

58.

App. 6

On appeal, the Fallinis contend that the court erred in

characterizing their interest in the water that they

brought to the surface at the developed water sources on

the Reveille Allotment. Based on their claim that they

enjoy ownership rights in that water under federal and

state law, the Fallinis argue that the government took

their property without compensation when it prohibited

them from barring the wild horses from drinking water at

those sites.

The government responds, first, that the Fallinis

failed to file their complaint within the applicable statute

of limitations period and that the complaint therefore

should be dismissed. On the merits, the government

argues that the Court of Federal Claims was correct in

ruling that the government had the right to condition the

Fallinis’ use of the public lands on their not barring the

wild horses from having access to the developed water

sources.

II

We do not reach the merits of the Fallinis’ claim, but

instead vacate the judgment of the Court of Federal

Claims and direct that court to dismiss the complaint as

untimely filed.

The Fallinis brought their claim against the United

States under the Tucker Act, 28 U.S.C. § 1491. Actions

brought under the Tucker Act are time-barred unless they

are filed within six years of the date that the cause of

action accrued. 28 U.S.C. § 2501. As a general matter, a

cause of action accrues when all the events have occurred

that fix the defendant's alleged liability and entitle the

App. 7

plaintiff to institute an action. Alliance of Descendants of

Texas Land Grants v. United States, 37 F.3d 1478, 1481 (Fed.

Cir. 1994). The question whether the pertinent events

have occurred is determined under an objective standard;

a plaintiff does not have to possess actual knowledge of

all the relevant facts in order for the cause of action to

accrue. Menominee Tribe v. United States, 726 F.2d 718, 721

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

In the present case, the objective standard is clearly

met, because the appellants have been cognizant of the

facts underlying the alleged taking since long before they

filed their complaint in the Court of Federal Claims. The

complaint alleges that the uncompensated taking began

in 1971, when Congress enacted the Wild Free-Roaming

Horses and Burros Act, and has continued since that

time.

On October 3, 1983, the Fallinis sent a bill to the

Bureau of Land Management seeking compensation for

the water drunk by the wild horses. At least by that date,

then, the Fallinis were aware of all the facts necessary to

establish the liability of the United States for the alleged

taking. Unless the Fallinis were justified in delaying the

filing of their complaint following that event, their claim

is barred because it was not filed in the Court of Federal

Claims until 1992, more than six years after the 1983 bill

that the Fallinis submitted to the Bureau of Land Manage-

ment.

The Fallinis advance two theories that, they claim,

enable them to avoid dismissal under the time bar. First,

App. 8

they argue that their complaint was filed within the lim-

itations period because they have experienced a contin-

uous taking over many years and the taking did not

stabilize until November 28, 1986, a date slightly less

than six years before the filing of their suit. Second, they

allege that every drink taken by every wild horse from

1971 through the date of the filing of their complaint

constituted a separate taking. Under that theory, the Fal-

linis would not be able to recover for any water taken

more than six years before they filed suit, but they would

be entitled to claim compensation for the water taken

within the six-year period before their complaint was

filed. As we analyze the case, neither of the Fallinis’

theories suffices to overcome the limitations bar.

In support of their first theory, the Fallinis claim that

they have been subject to a continuous taking under

United States v. Dickinson, 331 U.S. 745 (1947), and its

progeny. See generally Applegate v. United States, 25 F.3d

1579, 1581-84 (Fed. Cir. 1994). Under that theory, they

contend, their cause of action for the continuous taking

that began in 1971 did not accrue until 1986.

In Dickinson, the Supreme Court announced the prin-

ciple that, when the government allows a taking of land

to occur by a continuing process of physical events, plain-

tiffs may postpone filing suit until the nature and extent

of the taking is clear. 331 U.S. at 749. The taking in

Dickinson resulted from the government's construction of

a dam that intermittently inundated the property of

nearby landowners. Noting that the landowners were

uncertain at first how frequently the dam would result in

flooding (and thus whether an actual permanent taking

App. 9

had occurred), the Court in Dickinson held that the plain-

tiffs’ cause of action in such a case does not accrue until

“the situation becomes stabilized.” Id.

Dickinson contains language that can be read to sug-

gest that a cause of action for a taking does not accrue

until all the damages resulting from the taking can be

finally calculated. See, e.g., Dickinson, 331 US. at 749

(landowner may postpone suit until “the consequences

[of the governmental act in question] have so manifested

themselves that a final account may be struck”). That

interpretation of the Dickinson rule, however, would be

broader than even the appellants contend for, as it would

mean that in a case such as this one, where the damages

continue to increase over time, the plaintiffs’ cause of

action would never accrue and the statute of limitations

would never run. See Gustine Land & Cattle Co. v. United

States, 174 Ct. Cl. 556, 656 (Ct. Cl. 1966) (broad interpreta-

tion “would put the Dickinson doctrine in unending con-

flict with the statute of limitations”).

The Supreme Court has not read Dickinson so expan-

sively. In United States v. Dow, 357 US. 17, 27 (1958), the

Court characterized Dickinson as holding only that the

statute of limitations does not bar an action for a taking

by flooding “when it was uncertain at what stage in the

flooding operation the land had become appropriated to

public use.”

Following Dow, the Court of Claims adopted a sim-

ilarly narrow interpretation of Dickinson and the meaning

of “stabilization” in the takings context. In Kabua v.

United States, 546 F.2d 381, 384 (Ct. Cl. 1976), the court

noted that in Dow, the Supreme Court “more or less

App. 10

limited [Dickinson] to the class of flooding cases to which

it belonged, when the landowner must wait in asserting

his claim, until he knows whether the subjection to flood-

ing is so substantial and frequent as to constitute a tak-

ing.” Accord Hilkovsky v. United States, 504 F.2d 1112, 1114

(Ct. Cl. 1974) (Dow “distinguished the flooding situation

in Dickinson from other types of Government taking

because, in the slow flooding situation in Dickinson, the

full extent of the Government taking could not be known

until the high water mark of the flooding had been

reached”). And in Barnes v. United States, 538 F.2d 865 (Ct.

Cl. 1976), on facts very similar to those in Dickinson, the

court held that a taking by flood accrued in 1973 rather

than in 1969, the date of the first flood. The court

explained that the taking must be dated from the time

that “it first became clearly apparent . . . that the intermit-

tent flooding was of a permanent nature.” Id. at 873. In

other post-Dickinson cases, the Court of Claims has made

clear that it is not necessary that the damages from the

alleged taking be complete and fully calculable before the

cause of action accrues. Columbia Basin Orchard v. United

States, 88 F. Supp. 738, 739 (Ct. Cl. 1950) (“we do not

think the Supreme Court, in the Dickinson case, meant to

hold that plaintiff was entitled to wait until any possi-

bility of further damage had been removed”); Nadler

Foundry & Mach. Co. v. United States, 164 F. Supp. 249, 251

(Ct. Cl. 1958) (same); see also Wilcox v. Executors of Plum-

mer, 29 U.S. (4 Pet.) 172, 177 (1830) (statute of limitations

begins to run when breach of duty occurs; “right to sue is

not suspended, until subsequent events shall show the

amount of damage or loss”).

App. 11

In the case at bar, the “permanent nature” of the

taking was evident to the Fallinis at least by 1983, when

they sent their water bill to the Bureau of Land Manage-

ment. The Fallinis maintain that the taking was contin-

uous from 1971 on, but that it did not “stabilize” until

November 28, 1986. The only event to occur on or about

that date, however, was the formation of the Herd Man-

agement Area (HMA) in settlement of one of the Fallinis’

prior suits against the government.

The HMA established the historical location and herd

population of wild horses in the Reveille Allotment. As

part of the settlement, the Bureau of Land Management

undertook to conduct an annual census of wild horses in

the HMA and to remove any excess horses. Thus, the

formation of the HMA served only to reduce the damages

the Fallinis were suffering because of the alleged taking;

it did nothing to establish that the horses’ drinking con-

stituted a taking for which the United States was liable.

Three years before the HMA was established, the

Fallinis billed the federal government for the water

allegedly taken by the wild horses up to that point. At

least by that time, the situation had become clearly appar-

ent, and therefore had “stabilized” within the meaning of

Dickinson, because the bill that the Fallinis sent to the

Bureau of Land Management indicated that they were

fully aware of all the facts that, on their view of the case,

led to the conclusion that the government’s actions

amounted to a taking. The only changes in the ensuing

years were changes on the number of protected horses in

the Reveille Allotment, and thus the amount of water

taken. Nothing that happened in those later years had the

legal effect of triggering, for the first time, the Fallinis’

App. 12

obligation to sue for the alleged takings that had occurred

since the enactment of the Wild Free-Roaming Horses and

Burros Act in 1971. Thus, the Fallinis’ first theory does

not allow them to avoid the statute of limitations bar.

Under their second theory, the Fallinis concede appli-

cation of the time-bar as to pre-1986 events, but seek

compensation for injury they suffered after 1986, i.e.,

within the six years prior to the filing of their suit. That

claim, however, depends upon characterizing every drink

by every wild horse as a new and independent federal

taking compensable under the Fifth Amendment.

In analyzing this theory of recovery, it is useful to

analogize the conduct at issue in this case to a taking of

real property. If a landowner owns a parcel of beachfront

property and the government enacts legislation demand-

ing that the landowner allow others to walk along the

shore, the government has effected a taking of an ease-

ment on the landowner’s property. See Nollan v. California

Coastal Comm'n, 483 U.S. 825, 831 (1987). For purposes of

claim accrual, such a taking occurs on the date of enact-

ment of the legislation. Alliance of Descendants of Texas

Land Grants v. United States, 37 F.3d at 1482; De Anza

Properties X, Ltd. v. Santa Cruz, 936 F.2d 1084 (9th Cir.

1991). Every instance of a beachcomber using the public

easement does not constitute a separate taking, even

though each use may inflict psychic or economic injury

on the landowner.

The analysis of the present facts is similar. In their

complaint, the Fallinis allege that the Wild Free-Roaming

Horses and Burros Act deprived the Fallinis of their right

to exclude wild horses from the developed water sources

App. 13

on the Reveille Allotment. In light of those allegations, it

is the enactment of the statute, not the individual intru-

sions by the horses, to which a court must look to deter-

mine if there has been a taking.

The fact that the water at issue in this case is person-

ality and the land at issue in the easement case was realty

does not alter the nature of the analysis. For purposes of

determining when the Fallinis’ claim accrued, it is neces-

Sary in either case to look to the nature and timing of the

governmental action that constituted the alleged taking.

Alliance of Descendants of Texas Land Grants v. United

States, 37 F.3d at 1481.

If the horses were agents or instrumentalities of the

United States government, the analysis of what govern-

mental action constituted the alleged taking might well

be different. See Mountain States Legal Found. v. Hodel, 799

F.2d 1423, 1428 (10th Cir. 1986) (en banc), cert. denied, 480

U.S. 951 (1987). But the horses are not agents of the

Department of the Interior any more than beachcombers

wandering across a property owner’s land are agents of

the legislature that mandated the creation of an easement

along the shore.

What the Fallinis may challenge under the Fifth

Amendment is what the government has done, not what

the horses have done. The only governmental action that

could constitute a compensable taking in this case is the

government's directive forbidding the Fallinis from shoo-

ing the horses away from the water that the Fallinis have

produced at their developed water sources. That govern-

mental action cannot be regarded as recurring with every

new drink taken by every wild horse, even though the

App. 14

consumption of water by the wild horses imposes a con-

tinuing economic burden on the Fallinis. See Delaware

State College v. Ricks, 449 U.S. 250, 258 (1980) (proper

focus, for statute of limitations purposes, “is upon the

time of the [defendant's] acts, not upon the time at which

the consequences of the acts became most painful”).

Because the Fallinis identify the enactment of the Wild

Free-Roaming Horses and Burros Act as the govern-

mental action that prevented them from fencing the

horses away from their water sources, and because they

admit that they suffered injury from the date of enact-

ment, their claim must be regarded as accruing long

before they filed their present suit.

Ill

Based on our analysis of the Fallinis’ takings claim,

we conclude that their claim was time-barred. We there-

fore vacate the judgment and remand this case to the

Court of Federal Claims with instructions to dismiss the

complaint as untimely.

Each party shall bear its own costs.

VACATED AND REMANDED WITH INSTRUCTIONS

App. 15

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

94-5110

SUSAN L. FALLINI, and JOSEPH B. FALLINI, JR. in each

of the following capacities: as an individual person and

successor to the interest of HELEN FALLINI as sole heir

of HELEN FALLINI, deceased, executor of the last will of

HELEN FALLINI, and Trustee of the HELEN FALLINI

Living Trust and the HELEN FALLINI Living Trust as the

sole distributee of the Last Will of HELEN FALLINI,

Plaintiffs-Appellants,

v.

THE UNITED STATES,

Defendant-Appellee.

JUDGMENT

ON APPEAL from the United States Court of Federal

Claims

in CASE NO(S). 92-809L

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

VACATED AND REMANDED WITH INSTRUCTIONS

ENTERED BY ORDER

OF THE COURT

DATED JUN 8 1995 /s/ Francis X. Gindhart, pt

Francis X. Gindhart, Clerk

ISSUED AS A MANDATE: November 15, 1995

App. 16

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 92-809 L

SUSAN L. FALLINI, et al.,

v.

THE UNITED STATES

JUDGMENT

FILED MAR 15 1994

Pursuant to the court’s order of March 11, 1994,

allowing defendant’s motion for summary judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

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

costs.

David A. Lampen

Clerk of Court

March 15, 1994 By: /s/ Illegible

Deputy Clerk

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

72, re number, of copies and listing of all plaintiffs. Filing

fee is $105.00.

=

a

+

:

:

*

App. 17

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 92-809L

(Filed: March 11, 1994)

SUSAN L. FALLINI, et al., THIS ORDER WILL NOT

BE PUBLISHED IN THE

U.S. COURT OF FEDERAL

vs CLAIMS REPORTER

THE UNITED STATES, BECAUSE IT DOES NOT

ADD SIGNIFICANTLY TO

THE BODY OF LAW AND

IS NOT OF WIDESPREAD

INTEREST.

Plaintiffs

Defendant

ORDER

Pursuant to order, oral argument on defendant's

motion for summary judgment was heard on February 17,

1994, in the United States Court of Federal Claims,

National Courts Building, Washington, D.C.

Appearances

For Plaintiffs: William F. Schroeder, Esq.

W. Alan Schroeder, Esq.

For Defendant: Dorothy R. Burakreis, Esq.

Laura Brown, Esq., Dept.

of Interior

App. 18

Relevant Papers:

Complaint, filed November 24, 1992

ee ee ce ee

Answer, filed March 1, 1993

Defendant’s Motion for Summary Judgment, with

separately bound Appendix, filed June 3, 1993 :

Defendant’s Proposed Findings of Uncontroverted .

Fact, filed June 3, 1993 ‘

Plaintiffs’ Opposition to Defendant’s Motion for ;

Summary Judgment, with separately bound Appen- .

dix (6 volumes, 1516 pages), filed September 1, 1993 .

Plaintiffs’ Statement of Genuine Issues, filed Septem- :

ber 1, 1993 :

Defendant’s Reply in Support of Its Motion for Sum- :

mary Judgment, filed September 28, 1993 :

‘

Defendant’s Supplemental Appendix in Support of u

Its Motion for Summary Judgment, filed September -

28, 1993 .

Plaintiffs’ Outline of Oral Argument on Defendant's ;

Motion for Summary Judgment, filed pursuant to 5

court order, February 17, 1994 :

At the close of argument, a bench ruling was made. 5

The reasons for the decision were stated on the record :

and portions of defendant’s June 2, 1993, motion for :

summary judgment, and September 8, 1993, reply were :

identified and adopted. e

Plaintiffs operate a desert cow/yearling ranch opera-

tion utilizing an area of public lands known as the

Reveille Allotment, Nye County, Nevada. Plaintiffs’

App. 19

ranching operation includes 2,700 acres of private land,

generally known as Twin Springs Ranch, that are inter-

mingled with the public lands in the Reveille Allotment.

The Reveille Allotment, administered by the Bureau of

Land Management (BLM), Department of the Interior, is

comprised of 657,520 acres. According to defendant, the

Reveille Allotment contains a total of 57 developed water

sources, and at least 47 undeveloped water sources.

Plaintiffs’ ranch operation is of ancient origin. The

most recent grazing permit, approved September 11,

1984, authorizes grazing on 657,520 acres of the Allot-

ment, with a preference of 25,730 Animal Unit Months

(AUMs). An AUM is defined as (1) the amount of feed

required by an animal unit (one mature 1,000 lb. cow or

equivalent) for one month, or (2) tenure of one animal

unit for a period of one month. The Reveille Allotment is

a desert area, and the grazing preference in AUMs is

contingent on base waters controlled by the permittee. A

base water is a water on federal land for which the

permittee has a water right under state law, and which

has been determined to suppo1it a certain number of

AUMs. Range improvement permits allow development

of water sources additional to base waters, but do not

increase the number of permitted AUMs.

Since 1969, plaintiffs’ grazing permits have permitted

a total of 25,730 AUMs (approximately 2,144 head of

mature cattle). Since 1976, the actual use in ranch opera-

tions has been at the full preference, 25,730 AUMs.

Prior litigation in 1986 by plaintiffs has established a

herd management area (HMA) for wild horses on the

Reveille Allotment that is based on historic location of

App. 20

wild horses. The geographic boundaries of the HMA, and

the herd population, were established by the court on the

basis of a stipulation of the parties. Fallini v. Hodel, Civ.

No. R 85-535 BRT. (D. Nev. Nov. 13, 1987). The HMA is

comprised of 125,445 acres located within the Allotment,

and there is and will continue to be only one wild horse

herd use area within the Reveille Allotment. The HMA is

to be managed for a herd population of between 145 and

165 wild horses. The stipulation provides that an annual

census of the whole Reveille Allotment is required to be

taken by the BLM, and written notice of the results of the

census shall be sent to plaintiffs within 30 days of comple-

tion. Should a population of over 165 horses be deter-

mined to exist within the whole of the Reveille Allotment,

BLM is required to remove the excess horses within 120

days. Should public range lands within the Reveille HMA

substantially deteriorate, BLM retains discretion under

applicable statute or regulation to make adjustments in the

multiple uses of the Reveille HMA.

Defendant contends that since the 1986 litigation and

entry of the stipulated judgment in 1987, BLM has con-

ducted the required annual census and has removed the

excess horses. BLM statistics show wild horse data as

follows:

fs Se oer

Naa Rat Wer RPS: nek: fy

REP oa Ae Yn SN tet Capes

BI eee MATE eh

a)

App. 21

Census Removed Remaining

1986 1300

1987 1495 1214 281

1988 370 238 132

1989 269 105 164

1990 185 47 138

1991 195 54 141

In the complaint, plaintiffs contend that BLM,

through its management of wild horses on the Reveille

Allotment, has taken water owned by plaintiffs. Plaintiffs

seek to recover the costs of producing the water that has

been consumed by the wild horses. The complaint asserts

claims for water consumed between 1972 and 1991 by

wild horses (a) managed by BLM in excess of the

numbers authorized by law ($757,922), and (b) managed

by BLM within lawful limits ($160,324).

Alternatively, the complaint asserts claims for water

consumed between 1987-1991 by wild horses (a) managed

by BLM in excess of the numbers authorized by law

($94,204), and {b) managed b [sic] BLM within lawful

limits ($69,900).

App. 22

The total amount claimed for the 1972-1991 period is

$918,246. The total amount claimed for the alternative

1987-1991 period is $164,104.

The complaint provides statistical data relative to

water demand by wild horses that includes the following:

App. 23

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S6l

1661 |

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8rS'068'8 | OF9'IPE Ove'r90'T sor | €bz 6861

| %01 %L1 | 808‘9rr'6 =| 006268 009°0Z9'T sor | OLE 8861

%IP %9 | BrL‘OwS'rl | Ope'l66'S OvS‘riz'o | sor | ces) | cael

%¥E w%f> | 8zp‘zcs‘el | ozs‘ezz's ozz‘9e6's | sor | 6961 | Ber

% 1S %SS | B0€‘Owr'LI | COP‘I68‘’s OOI'vi9.s | sor | sel'z | sser

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App. 24

Summary judgment is appropriate where there are no

genuine issues of materia! fact, and the moving party is

entitled to judgment as a matter of law. RCFC 56(c);

Celotex Corp. v. Catrett, 477 US. 317, 322 (1986). The

movant has the burden of demonstrating that there are no

genuine issues of material fact. Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 (1970). The movant can meet this burden

by establishing that there is an absence of evidence on an

essential element of the nonmovant’s case. Celotex Corp.,

477 U.S. at 323; Sweats Fashions, Inc. v. Pannill Knitting Co.,

833 F.2d 1560, 1563 (Fed. Cir. 1987). All reasonable infer-

ences must be drawn against the party whose motion is

under consideration. Mingus Constructors, Inc. v. United

States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). The non-

movant must respond by producing affirmative evidence

that a genuine issue of material fact does exist, and such

an issue is determined to be genuine if a reasonable jury

could resolve a factual matter in the non-movant’s favor.

Sweats Fashions, Inc., 833 F.2d at 1562. A nonmoving

party’s failure of proof concerning the existence of an

element essential to its case on which the nonmoving

party will bear the burden of proof at trial necessarily

renders all other facts immaterial and entitles the moving

party to summary judgment as a matter of law. Dairyland

Power Coop v. United States, No. 93-5131, 1994 U.S. App.

LEXIS 2632, at *10-11 (Fed. Cir. Feb. 15, 1994).

Disposition of plaintiffs’ taking claims by summary

judgment is appropriate. Although plaintiffs’ grazing and

range improvement permits confer the right to produce

all the water that can be produced in the Allotment,

plaintiffs did not have sole control and do not own water

that is produced in excess of amounts needed to satisfy

App. 25

the preference authorized for their permitted herd, 25,730

AUMs. Water produced in excess of the preference

amount is subject to BLM range management standards,

and historically has been available for all wildlife in the

Reveille Allotment. Plaintiffs do not show an essential

element of its taking claim: ownership of any of the water

that has been consumed by wild horses during the period

1972-1991.

Plaintiffs base their claim of ownership of the water

consumed by the wild horses on the circumstance that

production of water under the grazing and range

improvement permits reduces the water to plaintiffs’ pos-

session and control. Osborne v. United States, 145 F.2d 892

(9th Cir. 1944) provides a summary of the history of

grazing on federal lands and assists in determining the

status of plaintiffs’ claim of ownership.

In the pioneer or ‘emigrant’ days of western

America immense areas of unappropriated and

otherwise unused territory were freely used by

stockmen for grazing. The government not only

refrained from objecting to this practice but in

various ways encouraged it and in time this

privilege, to use the words of the Supreme

Court in Buford v. Houtz, 133 U.S. 320, 326

[(1890)] . . . became .. . ‘an implied license,

growing out of the custom of nearly a hundred

years. ...° This license was held to be the basis

of various rights as between the licensee and

other private individuals but not as between the

licensee and the government.

Osborne, 145 F.2d at 894. While these permits create rights

as between persons, which must be adequately safe-

guarded, “the Government for its own use may without

App. 26

payment of compensation withdraw the permit privilege”

entirely. McNeil v. Seaton, 281 F.2d 931, 934 (D.C. 1960).

Under Nevada law, claims to water rights are subject to

an adjudication procedure to determine the relative rights

of users. Nev. Rev. Stat. §§ 533.090-533.320. Plaintiffs’

water rights have not been established in Nevada judicial

proceedings. Plaintiffs have not shown an ownership

interest in the water consumed by wild horses that is not

subject to BLM range management standards.

A necessary prerequisite to a taking claim is that

plaintiffs demonstrate ownership or title to the property

in issue at the time of the taking. United States v. Dow, 357

U.S. 17, 20 (1958); Georgia-Pacific Corp. v. United States, 568

F.2d 1316, 1319 (Ct. CL), cert. denied, 439 US. 820 (1978).

The Supreme Court traditionally has resorted to “ ‘exis-

ting rules or understandings that stem from an indepen-

dent source such as state law’ to define the range of

interests that qualify for protection as ‘property’ under

the Fifth (and Fourteenth) amendments... . ” Lucas v.

South Carolina Coastal Council, 112 S. Ct. 2886, 2901 (1992);

see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 161 (1980). Recognition that the Takings Clause

does not require compensation when an owner is barred

from putting land to a use that is proscribed by those

existing rules or understandings is surely unexceptional.

Plaintiffs point out that their range improvement per-

mits are limited to improvements “necessary to the man-

agement of the permitted livestock,” as distinguished

from a “cooperative arrangement” which is subject to

mutual agreement. See 43 U.S.C. § 315¢ (1988). From this,

plaintiffs argue that all of the water produced under the

range improvement permits necessarily must be devoted

App. 27

exclusively to requirements of the permitted herd, and

not to achieve other range management objectives. Plain-

tiffs state:

Neither the applications nor the permits in this

case were for the purpose of ‘achiev[ing] man-

agement objectives,’ regardless of whose

objectives they are construed to be. These appli-

cations and permits express as their only per-

mitted purpose “the care and management of

permitted livestock”, just as prescribed by Con-

gress, and the tangible improvement and the

intangible water right are clearly private prop-

erty unaffected by federal control so long as the

purpose is being achieved and valid permit con-

ditions are being met.

This argument is without merit. Plaintiffs’ range

improvement permits were approved in order to accom-

modate the “deferred rest rotation system” employed by

plaintiffs to improve proper forage utilization and con-

form to BLM grazing policies. Plaintiffs’ deferred rest

rotation system implements BLM’s range maintenance

objectives. It is additional to the care and management of

permitted livestock.

At various times since 1952, plaintiffs and their pre-

decessors have applied for and obtained BLM range

improvement permits for development of water sources

on the Reveille Allotment. Developed water sources can

consist of springs, pipelines, wells, reservoirs, ditches

and catchments or be a combination of several of these. A

water source is considered to be developed when a sur-

face or subsurface water is manipulated to change the

location, quantity, quality or period of availability.

App. 28

Typically, plaintiffs’ range improvement permits pro-

vide:

2. The permit does not accord to the permittee

any preference, privilege, or consideration of

any kind except as expressly provided herein.

3. The permit is subject to cancellation in

whole or in part if the lands or portions thereof

are withdrawn or reserved under a Public Land

Order or are classified for disposal under any

public land law, where such improvement or

part thereof would interfere with the use of the

land for the purposes of such withdrawal, reser-

vation, or disposal.

4. The permittee will comply with the laws of

the State within which the improvements are

located with respect to water filings... .

5. Any public lands or impounded waters will

be available for wildlife use and open to the

public for hunting and fishing in accordance

with State regulations. Such lands and waters

shall also be open for other authorized public

use to the extent that such use is consistent with

the purpose for which the permit is granted.

6. Specifications for the improvements autho-

rized by this permit must be approved by the

Bureau prior to construction.

Like the grazing permit itself, range improvement

permits are typically “subject to cancellation for noncom-

pliance with the rules and regulations now or hereafter

approved by the Secretary of the Interior, or where the

App. 29

improvement would interfere with the range manage-

ment practices determined by the Bureau of Land Man-

agement, or for a violation of any of the [permit’s]

”

terms...

As the Supreme Court has held in United States v.

Fuller, 409 U.S. 488, 494 (1973), the Taylor Grazing Act (43

U.S.C. §§ 315 et seq.) expressly states that no compens-

able expectancy is created in the permit lands themselves

as a result of permit issuance. Also, given the longstand-

ing multiple-use mandate incorporated in all of the gov-

erning legislation, and in the terms of their permits,

plaintiffs did not have a compensable expectancy in

exclusion of wild horses and other wild animals from the

allotment or exclusive use of the forage and water.

Indeed, as the district court and the dissenting Ninth

Circuit judge recognized in Fallini v. Hodel, 725 F. Supp.

1113, 1116 (D. Nev. 1989) and Fallini v. Hodel, 963 F.2d 275,

279-80 (9th Cir. 1992), the “plain meaning” of “wildlife”

in the range improvement permit for the Deep Well

included wild horses. Unlike the claim in Fallini v. Hodel,

plaintiffs’ claim here is not limited to the Deep Well, but

rather encompasses all water sources, developed and

undeveloped, on the Allotment. There are at least 47

undeveloped waters on the Allotment, as well as 57

developed waters under separaie Section 4 range

improvement permits. Given the undisputed presence of

wild free-roaming horses on the allotment at the time

these permits were issued, plaintiffs could not reasonably

have expected to have exclusive use of the water or

forage.

Plaintiffs ignore that any loss, or claim of a regula-

tory taking by the United States, must be evaluated in

App. 30

light of: (1) the logically antecedent inquiry - in this case,

whether there is a compensable expectancy to exclusive

use of the allotment in the first instance, Lucas, 112 S. Ct.

at 2901; and, (2) the definition of the property as a whole,

the unit of property “whose value is to furnish the

denominator of the fraction.” Keystone Bituminous Coal

Ass'n v. DeBenedictis, 480 U.S. 470, 497 (1987); Concrete

Pipe Prods., Inc. v. Construction Laborers Pension Trust, 113

S. Ct. 2264, 2290-91 (1993). Plaintiffs are silent in the face

of the Supreme Court decisions in Penn Cent. Transp. Co.

v. New York City, 438 U.S. 104, 130-31 (1978), and

numerous other regulatory takings cases which uni-

formly reject the proposition that diminution in property

value, standing alone, can establish a taking.

Plaintiffs’ grazing permit and their range improve-

ment permits expressly are subject to multiple use man-

agement of public lands under the Taylor Grazing Act,

Federal Land Policy & Management Act of 1976

(FLPMA), 43 U.S.C. §§ 1702(c), (k), and Public Range

Lands Improvement Act of 1978 (PRIA), 43 U.S.C.

§§ 1901(b)(2), 1902(d), (f), 1903(b), and compliance with

all regulations “now or hereafter approved by the Secre-

tary of the Interior.” Clearly under these provisions,

plaintiffs’ range improvement permits are not limited to

the “care and management of permitted livestock” as

plaintiffs claim.

Contrary to plaintiffs’ assertion, all of their Section 4

range improvement permits are expressly subject to regu-

lations then existing as well as those subsequently

approved by the Secretary. All of their Section 4 range

improvement permits (43 U.S.C. § 315c) specifically state

that “[a]ny public lands or impounded waters will be

App. 31

available to wildlife use and open to the public for hunt-

ing and fishing in accordance with State regulations” and

“also be open for other authorized public use” not incon-

sistent with the purpose of the permit. Under the regula-

tions, installation and maintenance of range

improvements must be consistent with multiple use man-

agement. 43 C.F.R. § 4120.3-1(a) (1992). “Range improve-

ments” are defined as “an authorized activity or program

on or relating to rangelands which is designed to improve

production of forage; change vegetative composition;

control patterns of use; provide water; stabilize soil and

water conditions; and provide habitat for livestock, wild

horses and burros, and wildlife.” 43 C.ER. § 4100.0-5

(1992). Certainly, wild horses were preser: within the

Reveille Allotment prior to enactment of the Wild Horses

Act, and, furthermore, al! of plaintiffs’ range improve-

ment permits are by their express terms subject to then

existing and subsequently approved rules and regula-

tions.

To succeed in establishing a compensable taking,

plaintiffs must show a taking of economically viable use.

While plaintiffs attempt to “shoehorn [their] claim into

this analysis” by asserting that the water which the

horses consumed was consumed in its entirety, the

Supreme Court has flatly “rejected this analysis years ago

in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104,

130-31 (1978), where [it] held that a claimant’s parcel of

property could not first be divided into what was taken

and what was left for the purpose of demonstrating the

taking of the former to be complete and hence compens-

able.” Concrete Pipe, 113 S.Ct. at 2290. Indeed, “[t]o the

extent that any portion of property is taken, that portion

eT aN ey

App. 32

is always taken in its entirety; the relevant question,

however, is whether the Property taken is all, or only a

portion of the parcel in question.” Id.

Plaintiffs cannot define their property as merely the

portion that they claim was taken — merely the cost of

Providing water which was consumed by the horses. In

fact, in their complaint, plaintiffs describe their ranch

property as a whole as including exclusive rights to har-

vest forage on public land, public land range improve-

ments, exclusive ownership of rights to appropriate all of

the water, and their grazing “preference” on public land.

Existing uses of their Property are unaffected; their cattle

have not been without forage or water. Plaintiffs do not

dispute that since 1971, their total preference has

remained at 25,730 AUMs, and actual use of the allotment

since 1976 has been at the full preference.

On the basis of the foregoing, and on the statement

made at the close of argument, defendant’s motion for

summary judgment must be allowed. The Clerk is

directed to dismiss the complaint. No costs.

/s/ Kenneth R. Harkins

Kenneth R. Harkins,

Senior Judge

App. 33

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 92-809L

(Filed: November 20, 1995)

SUSAN L. FALLINI, et al.,

Plaintiffs

Vv.

THE UNITED STATES,

Defendant

ORDER

The June 8, 1995, decision of the United States Court

of Appeals for the Federal Circuit was issued as a man-

date on November 15, 1995. Pursuant to the CAFC deci-

sion and mandate, the judgment entered March 15, 1994,

is vacated and the Clerk is directed to dismiss the com-

plaint as untimely.

IT IS SO ORDERED.

/s/ Kenneth R. Harkins

Kenneth R. Harkins,

Senior Judge

App. 34

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 92-809L

SUSAN L. FALLINI, et al.,

“ JUDGMENT

THE UNITED STATES Filed

; NOV. 21, 1995

Pursuant to the court’s order of November 20, 1995,

vacating the judgment of March 15, 1994, and directing

Clerk to enter judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

suant to Rule 58, that the complaint is dismissed.

David A. Lampen

Clerk of Court

November 21, 1995 By: /s/ Illegible

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see RCFC 72,

re number of copies and listing of all plaintiffs. Filing fee

is $105.00.

App. 35

William F. Schroeder, Esq.

Attorney of Record

P.O. Box 220

Vale, OR 97918

W. Alan Schroeder, Esq

of Counsel

P.O. Box 267

Boise, ID 83706

Lawyers for plaintiffs.

IN THE UNITED STATES CLAIMS COURT

SUSAN L. FALLINI, and JOSEPH )

B. FALLINI, JR. in each of the )

following capacities: as an )

individual person and successor )

to the interest of Helen Fallini as ) 92-809 C

sole heir of Helen Fallini, )

deceased, executor of the Last ) Complaint for Just

Will of Helen Fallini, and Trustee ) Compensation.

of the Helen Fallini Living Trust, )

and the Helen Fallini Living Trust) (28 U.S.C.1491)

as the sole distributee of the Last )

Will of Helen Fallini. )

V.

)

)

UNITED STATES OF AMERICA. )

Plaintiffs allege:

JURISDICTION

1. 28 U.S.C. Sec. 1491 provides that this Court shall

have jurisdiction over any claim against the United States

founded either upon the Constitution, or any Act of Con-

gress or any regulation of an executive department, or

App. 36

upon any express or implied contract with the United

States, inter alia. Jurisdiction over this claim is conferred

by Section 1491 in that:

a. defendants are the United States and agents of

the United States acting for an [sic] on behalf of the

United States;

b. defendants Lujan and Jamison and their prede-

cessors in Office are members of the executive depart-

ment of the United States, and have acted by and under

the authority of the executive department of the United

States;

c. the acts of defendants alleged herein constitute a

taking of property within the meaning of the Fifth

Amendment of the Constitution of the United States for

which compensation is due and owing. The causes of

action alleging said taking is founded upon the Constitu-

tion of the United States. The provisions of the just com-

pensation clause of the Fifth Amendment are self-

executing, and the remedy established is the payment of

compensation.

d. the claims herein stated involve management by

defendants Lujan, Jamison, and their predecessors in

Office, of wild free-roaming horses and in that manage-

ment, requiring plaintiffs to provide water to sustain such

horses. The claims involve the following Acts of Con-

gress: Wild and Free Roaming Horses and Burros Act, 85

Stat. 649, as amended by the Public Rangelands Improve-

ment Act of 1978, 92 Stat. 1803, 16 U.S.C. 1331-1340; Taylor

Grazing Act of 1934, 48 Stat. 1269, as amended, 43 U.S.C.

315 et seq.; Federal Land Policy and Management Act of

1976, 90 Stat. 2743, 43 U.S.C. 1701, et seq.

App. 37

PARTIES

2. Helen Fallini is the mother of Joseph B. Fallini, Jr.

On July 8, 1983 she conveyed to Joseph B. Fallini, as

Trustee, all of her right, title and interest in the property

which is generally described in paragraph 3 pursuant to

an agreement entitied the Helen Fallini Living Trust. She

died on April 29, 1989, leaving Joseph B. Fallini as her

only heir, as the executor of her last Will, and as said

Trustee, the beneficiary by said last Will, of such prop-

erty. Susan L. Fallini is the wife of Joseph B. Fallini, Jr.

3. Onand after December 15, 1971 Helen Fallini was

until her death, and Joseph B. Fallini, Jr. and Susan L.

Fallini were and are citizens of the United States and

residents of Nye County, Nevada. On and after December

15, 1971 and until July 8, 1983 they conducted, and on

and after July 8, 1983 plaintiffs conducted and now con-

duct a livestock ranching business with their private

land, cattle, machinery, equipment, money, credit, water

rights, public land grazing preference, public land range

improvements, and other property in said County and

State.

4. On December 15, 1971 the Wild Free-roaming

Horses and Burros Act, supra., was enacted as a law of the

United States, wherein and whereby (as applied to this

complaint) all wild free-roaming horses were declared to

be under the jurisdiction of the Secretary of the Interior

for the purposes of management as components of the

public lands. Said Secretary administers the public lands

through the Bureau of Land Management, a unit of the

United States Department of the Interior. Defendant Man-

uel Lujan, Jr. is presently Secretary of the Interior and

App. 38

defendant Cy Jamison is presently Director of the Bureau

of Land Management. They are successors to previous

Secretaries and Directors under whose administrations

some of the actions alleged herein, occurred.

GENERAL ALLEGATIONS

6. The property described in paragraph 3 is, gener-

ally, the Twin Springs Ranch, and the public land grazing

preference permits the owners to exclusively harvest for-

age with domestic livestock upon the Reveille Allotment.

The property owners substantially invested in the acqui-

sition of the preference and without it, the owners’ prop-

erty is valueless in the conduct of the business.

7. The Reveille Allotment is an administrative unit

of public land within Nevada, administered by defen-

dants. Within said Allotment are natural and developed

water sources upon private and public lands which are

necessary to sustain domestic livestock, and on and after

December 15, 1971 plaintiffs were and are the exclusive

owners of rights to appropriate all of such water. By

reason of such right, plaintiffs own said grazing prefer-

ence.

8. Such water is made available by the owners at

the land surface to sustain domestic livestock by the

expenditure of money for buildings, machinery, fuel and

other associated expendables, electricity, equipment,

tools, fences, gates, tanks, containers, air and ground

vehicles, animal and human labor, public fees, and other

service costs. On and after December 15, 1971 and

through and including 1991 plaintiffs continuously

expended money, and did so in every year as scheduled

App. 39

within Exhibit A, being an Analysis of Costs to Provide

Water for Cattle and Wild Horses, john S. Nalivka Septem-

ber 20, 1992.

9. Said Wild and Free Roaming Horses and Burros Act,

supra., authorizes defendants to manage numbers of wild

horses only to the extent that the natural ecological bal-

ance of the public lands will be achieved and maintained,

to remove the excess, and prohibits defendants from

relocating such animals to areas of the public lands where

wild horses did not exist at enactment. By amendment

enacted within the Public Rangelands Improvement Act of

1978, supra., defendants are required to immediately

remove from a given area numbers which exceed those

authorized by the Act. On November 28, 1986 the United

States District Court for the District of Nevada required

defendants to remove wild horses from described areas of

the Reveille Allotment to which they had been relocated

and to determine authorized numbers within the wild

horse use area at enactment. Defendants thereupon deter-

mined that 165 horses was the maximum number of

horses permitted by the Act within the Reveille Allot-

ment.

10. Notwithstanding plaintiffs’ entreaties and

demands, defendants continuously failed and refused to

provide water for the wild horses within their manage-

ment or to reimburse plaintiffs for doing so and defen-

dants required plaintiffs to provide water to wild horses

whenever plaintiffs provided water to their domestic

livestock after December 17, 1971, on penalty of loss of

their grazing preference.

———— ee

App. 40

11. Notwithstanding plaintiffs’ entreaties and

demands, defendants failed to remove from the Reveille

Allotment wild horses in excess of the number permitted

by said Act and continued to manage horses continuously

and in each year in numbers stated within Exhibit A.

FIRST COUNT

Taking of Property Without Just Compensation.

12. Paragraphs 1-11 are incorporated herein by ref-

erence as though fully set forth herein.

13. Assuming defendants’ actions as alleged are

lawful, they constitute a taking of plaintiffs’ property for

which compensation is due within the meaning of the

Fifth Amendment to the United States Constitution.

14. Defendants have taken plaintiffs’ property con-

tinuously to provide water to sustain wild horses man-

aged by them in excess of lawful limits during each of the

years between 1972 and 1991, inclusive, to the extent that

was not determinable until November 28, 1986. The con-

tinuing taking in each year is stated within Exhibit A,

Water Cost Allocation, Excess Horse Cost, Actual Cash

Outlays.

SECOND COUNT

Taking of Property Without Just Compensation.

15. Paragraphs 1-11 and 13 are incorporated herein

by reference as though fully set forth herein.

App. 41

16. The Wild and Free Roaming Horses and Burros Act,

supra., took plaintiffs’ property to provide water to sus-

tain wild horses managed by defendants within lawful

limits in each of the years between 1972 and 1991, inclu-

sive, to the extent that was not determinable until

November 28, 1986. The taking in each year is stated

within Exhibit A, Water Cost Allocation, (Total Horse

Cost, Actual Cash Outlays) less (Excess Horse Cost,

Actual Cash Outlays).

THIRD COUNT

Alternative (to First Count) Claim for Taking of

Property Without Just Compensation.

17. Paragraphs 1-11 and 13 are incorporated herein

by reference as though fully set forth herein.

18. Defendants have taken plaintiffs’ property to

provide water to sustain wild horses managed by them in

excess of lawful limits in each of the years between

1987-1991, inclusive. The taking in each year is stated

within Exhibit A, Water Cost Allocation, Excess Horse

Cost, Actual Cash Outlays.

FOURTH COUNT

Alternative (to Second Count) Claim for Taking

of Property Without Just Compensation.

19. Paragraphs 1-11 and 13 are incorporated herein

by reference as though fully set forth herein.

20. The Wild Free-roaming Horses and Burros Act,

supra., took plaintiffs’ property to provide water to sus-

tain wild horses managed by them within lawful limits in

eee

App. 42

each of the years between 1987-1991, inclusive. The tak-

ing in each year is stated within Exhibit A, Water Cost

Allocation, (Total Horse Cost, Actual Cash Outlays) less

(Excess Horse Cost, Actual Cash Outlays).

COMPENSATION CLAIM

21. Paragraphs 1-20 are incorporated herein by ref-

erence as though fully set forth herein.

22. As a result of defendants’ actions, plaintiffs are

entitled to compensation in at least the following

amounts:

a. For continuously taking plaintiffs’ property to

provide water to wild horses managed by defendant

between 1972-1991, inclusive, in excess of the numbers

authorized by law, $757,922.

Or for the taking of plaintiffs’ property to provide

water to wild horses managed by defendant between

1987-1991, inclusive, in excess of the numbers authorized

by law, $94,204.

c. For continuously taking plaintiffs’ property to

provide water to wild horses managed by defendant

within lawful limits between 1972-1991, inclusive,

$160,324.

Or for the taking of plaintiffs’ property to provide

water to wild horses managed by defendant within law-

ful limits between 1987-1991, inclusive, $69,900.

e. Interest on the compensation from the dates of

the takings as determined by the Court.

App. 43

Wherefore, plaintiffs pray as follows:

A. That the Court award compensation to plaintiffs

for a taking of property in each of the years 1972-1991,

inclusive, as alleged and in the aggregate, $918,246, or in

such amounts as proved at trial, plus interest from the

dates of taking as determined by the Court.

B. That the Court grant such other and further relief

as it deems proper.

November 23, 1992.

/s/ William F. Schroeder

William F. Schroeder

(503)473-3141

Lawyer for plaintiffs.

App. 44

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App. 46

WATER COST ALLOCATION: Cattle and Wild Horses

According to Annual Water Demand

Twin Springs Ranch

Total Horse Cost Excess Horse Cost

Year Veriebte Fixed Total Cette Total Horse Demand Actuel Cash Opportunity Tote ActualCash Opportunity Total

Ceet Cost Cost} Demand Cette [ Total Overiegell Oullays CostofFunde Cost Outlays Cost of Funds Cost

Cost num be: ne

Percent -—~-—— Percent ----

1970 $18,603 $20,364 $38,967

1971 17,199 23,145 40,344 2% 806 $37,004 ~ o™% $3,340 $202 $3,542 $0 $0 $0

1972 24.042 22.638 46 680 _ 42,124 10% 1% ae ou“ 4,792 333 17 349

1973 29.827 re) 56.807 aay 80,130 12% “~ 6677 580 7,257 2,048 173 2.221

1974 22.184 27,808 49,992 aan 41.981 16% ~ 8,031 758 8,789 4,157 381 4.538

+ 1975 32.977 23,237 56.214 7% 44 648 21% 1% 11,569 876 12,445 7,448 556 8,002

“. 1976 41,606 20.088 61,782 75% ane 25% 18% 15,219 9968 16,217 10,919 711 =: 19,830

‘Ne Cl ster? 39.278 25,139 64.409 72% 40 48.223 a 2% 0Oti« YS 1140 §©=«'19,328Ss«13,088 seo «14,787

\ < 1978 35.425 27,480 62.905 os M4 oor os 32% 23,916 2,102 26,018 20,315 1.777 22,093

; 1979 52895 28 824 81.519 oN 45 507 “as a 36,012 3,674 39 686 31,810 3238 86 35,048

’ ‘>| tee0 78,718 67.408 168.124 ‘-~ woe 4% a 67 829 6,185 74,014 58,752 5362 64,115

- 1981 97 402 92.048 189,450 an | ™ rr. 4 #9 204 14995 104,199 79,947 13,411 93,358

Ww ¥ 1982 98.749 31080 127,799 “™% Se 4a5 5% a 68.314 11,030 79,344 62,821 10093 72,914

, 1983 128,401 78.237 207.638 “% 92.181 oo 2% 86 1S457 = = 13,281 = 128,739 = 108,945 12289 119,234

‘el 80s 118,080 7e.864 193 944 “an 84.670 oN 2% 0 t0m.273 14,743 © 124,017 «101,484 13,683 115,138

Ni) ses 103 9890 e154 185,473 on 83.229 8 aT 8.195 111,438 94.558 6,508 103,065

lh sees 103 808 75.414 179.012 an “7% ws 77.6568 8.446 83,102 68.2968 4816 73,192

. ne 107 249 85 Sas 162.833 san 67 64) ro as 73.192 5,387 80,579 67,090 4804 71,903

eee 103,188 85 482 188.670 a ™ 1m 27.220 2.527 29,747 15,081 7 nT

we 112,198 61 08 174.064 oo 86163208 1 ~ 20 836 1,843 22.679 6.688 649 7.337

1980 128.572 82 820 221 392 on 200 620 ~ ™ 20.772 1796 22,567 2.246 230 2475

1901 122.452 61 880 204.112 — 14008 10% = 20 084 1,381 21,464 3,090 209 3.299

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Tetel 61,583,028 61,087.518 62.001.144 61,780,558 $92) see $96,374 $1,019,961 $757,922 $83,318 $841,240

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App. 48

WATER DEMAND BY CATTLE AND WILD HORSES

Reveille Grazing Unit

Twin Springs Ranch

Year Cattle Cattle Horeee Allowed tHoree AUM'es Horee Water Demand Totel “ % Horees

AUM's Water (umber) Under 1906/ Total Overlegsl| Total Over legal Were, Cattle Total Over legal

Demand Coun Order number number Demand number

~ Gal. per yr. ~~ gal. per yr. —-— -

tert 20,100 6,113,750 126 1,512 651,860 6,665,630 92% 8% /

1e72 23,700 7,208,750 178 168 2,136 156 779,640 66,940 7,068,390 90% 10% 1%

1e73 25.730 7 628.208 238 165 2,656 876 1,042,440 319,740 6 666 646 68% 12% 4%

1074 25,730 7 626,208 2 165 4,104 2,124 1,497,960 775,260 9,324,166 64% 16% 6%

1e7s 25,730 7,828,208 463 165 5,556 3.576 2,027,940 1,305,240 0,654,146 79% 21% 13%

1e76 25.730 7,826,208 584 165 7,008 5.0268 2,557,920 1,835,220 10,384,126 75% 25% 16%

1e77 25,730 7 8286 208 703 165 64% 6456 3,079,140 2,356,440 10,805,348 72% 26% 22%

1e78 25.730 7,826,208 1,096 165 13,152 11,172 4,800,480 4,077,760 12,626,668 62% 38% 32%

1e7e 25,730 7 8286 208 1,414 165 16,968 14,986 6,193,320 6,470,620 14,019,528 56% 44% 39%

1960 75,70 7 828.208 1,233 165 14,796 12816 6,400,540 4,677,840 13,226,748 59% 41% 35%

1e81 25,730 7 628,208 1,590 165 19,080 17,100 6,964,200 6,241,500 14,790,408 53% 47% 42%

1ee2 25,730 7 626,208 2,052 165 24,624 22,644 6,967,760 6,265,060 16,613,968 47% 53% 4o%

tees 25.730 7 628 20€ 2.238 165 26,656 24,876 9,602,440 9,079,740 17,628,646 44% 56% 52%

1oe4 25,730 7,828,208 2,308 165 27,672 25,692 10,100,260 9,377,580 17,926 468 44% 56% 52%

e805 25,730 7,828,20% 2.1065 - 16S) 6~ 26,340 - 24360 0,614,100 6891,400° 17,440,306 - * 4% 55% 51%

oan 25.730 7,826,208 1,369 165 16.428 14.446 6.996.220 6,273,520 13,622,428 57% 43% 38%

oe 25,730 7,828,20¢ 1,533 165 16,396 16,416 6,714,540 6,091,840 14,640,748 64% 46% 41%

ee 25.730 7,628,208 370 165 4,440 2,460 1,620,600 897,900 9,446,606 63% 17% 10%

oy 25.730 7 828.208 243 165 2.016 836 3 1,084,340 341,640 6,600 646 66% 12% 4%

ie. oe) 25.730 7 828 20¢ 165 165 2,220 240 610,300 67,600 6,636,606 om oo ™%

1ee1 25.730 7 828,208 195 165 2,340 360 654,100 131,400 6,660,306 90% 10% 2%

App. 49 |

WATER DEMAND BY CATTLE AND WILD HORSES:

Reveille Grazing Unk

Twin Springs Ranch

Year Cattle Horses Horse Cattle — Percent increase Horse —Percentinciease =Total Percent of Total —

AUM'’s (Number AUM'’s Demand yi/¥r From 1971 Demand Yi/¥r From1971 Water Cattle Horses

peerage Gal. / yr. ~ Gal Tyr. Gal. 7 yr.

1971 20,100 126 1,512 6,113,750 551,880 6,665,630 9%

1972 23,700 178 2.136 7,208,750 18% 18% 779,640 41% 41% 7,988,390 90%

rr? 1973 25,730 238 2.856 7,826,208 3% 28% 1,042,440 34% 89% 8,868,648 88%

a: 1974 25,730 342s 4,104 7,826,208 o% 28% 1,497,960 4% 171% 9,324,168 84%

ti 1975 25,730 463 5,556 7,826,208 o% 28% 2,027,940 35% 267% 9,654,148 79%

~ —< 1976 25,730 584 7,008 7,826,208 O% 28% 2,557,920 26% 363% 10,384,128 75%

O~ 1977 25,730 703 8,436 7,826,208 o% 28% 3,079,140 20% 458% 10,905,348 72%

> 1978 25,730 1,096 13,152 7,826,208 o% 28% 4,800,480 56% 770% 12,626,688 6%

NY . 1979 25,730 1.414 16,968 7,826,208 0% 28% 6,193,320 29% 1022% 14,019,528 56%

\ m. 1980 25,730 1,233 14,796 7,826,208 O% 28% 5400540 -13% 879% 13,226748 59%

na 1981 25,730 1,590 19,080 7,826,208 O% 28% 6,964,200 29% 1162% 14,790,408 53%

gg 1982 25,730 2.052 24,624 7,826,208 ms 28% 8,987,760 29% 1529% 16,813,968 47%

; 1983 25,730 2.238 $26,856 7,826,208 o% 28% 9,802,440 9% 1676% 17,628,648 44%

1984 25,730- 2306 - 27,672 7,826,208 7 28% 10,100,280 3% 1730% 17,926,488 44%

1985 25,730 2.195 26,340 7,826,208 o% 28% 9,614,100 -5% 1642% 17,440,308 45%

1986 25,730 1,369 16,428 7,626,208 7; 28% 5,996,220 ~38% 967% 13,622,428 57%

1987 25,730 1,533 18.396 7,826,208 o% 28% 6,714,540 12% 1117% 14,540,748 54%

1988 25,730 370 4,440 7,826,208 O% 28% 1,620,600 -76% 194% 9,446,808 63%

1989 25,730 243 2.916 7,828,208 O% 28% 1,064,340 - 4% 93% 6,800,548 NM

1990 25,730 185 . 2220 7,826,208 ~ 28% 810,300 - 24% 47% 8 §=—: 6,696,508 91%

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Sesion % * pmol S.INY St:0H pemorry tad G our see,

youey sSuyds um

yun Sure emercy

‘S@SJOH PILM PUB eMEeD

ONVYW3G 3Dvu04

App. 52

FORAGE DEMAND

Cattle and Wild Horses

Reveille Grazing Unt

Twin Springs Ranch

ees Year Cattle _Percentincrease j Horses Percentincrease Horse — Percent increase _ Total Percent of Total

AUM's Ye/¥r From 1971 (Number Yr/Yr From 1971 AUM's Yr/¥r From 1971 AUM's Cattle Harses

1971 20,100 126 1,512 21,612 93% 7%

1972 23,700 18% 18% 178 41.3% 41.3% 2,136 41.3% 41% 25,836 92% 8%

1973 25,730 9% 28% 238 34% 89% 2,856 34% 89% 28,586 90% 10%

my 1974 25,730 0% 28% 342 44% 171% 4,104 44% 171% 29,834 85% 14%

-_ 1975 25,730 0% 28% 463 35% 267% 5,556 35% 267% 31,286 82% 18%

~*~ 1976 25,730 0% 28% 584 26% 363% 7,008 26% 363% 32,738 79% 21%

NN "Ws 1977 25,730 o%. 28% 703 20% 458% 8,436 20% 458% 34,166 75% 25%

\ 1978 25,730 0% 28% 1,096 56% 770% 13,152 56% 770% 38,882 66% 34%

* 1979 25,730 % 28% 1,414 29% 1022% 16,968 29% — 1022% 42,698 60% 40%

KH A | 1980 25,730 0% 28% 1,233 -13% 879% 14,796 —13% 879% 40,526 63% 37%

i 1961 25,730 0% 28% 1,690 29% 1162% 19,080 29% 1162% 44,810 57% 43%

4 1982 25,730 0% 28% 2,052 29% 1529% 24,624 29% 1529% 50,354 51% 49%

F 1983 25,730 0% 28% 2,238 9% 1676% 26,856 9% 1676% 52,586 49% 51%

1984 25,730 0% 28% 2,306 3% 1730% 27,672 3% 1730% 53,402 48% 52%

1985 25,730 0% 28% 2,195 -5% 1642% 26,340 -5% 1642% 52,070 4% 51%

1986 25,730 o% 28% 1,369 —38% 987% 16,428 —38% 987% 42,158 61% 39%

1987 25,730 o% 28% 1,533 12% 1117% 18,396 12% 1117% 44,126 58% 42%

1988 25,730 o% 28% 370 —76% 194% 4,440 -76% 194% 30,170 85% 15%

1989 25,730 0% 28% 243 -34% , 93% 2,916 -34% 93% 28,646 90% 10%

1990 25,730 0% 28% 185 — 24% 47% 2,220 —24% 47% 27,950 92% 8%

1991 25,730 0% 28% 195 5% 55% 2,340 5% 55% 28,070 92% 8%

App. 53

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

94-5110

SUSAN L. FALLINI, and JOSEPH B. FALLINI, JR.

in each of the following capacities: as an

individual person and successor to the interest of

HELEN FALLINI as sole heir of HELEN FALLINI,

deceased, executor of the last will of HELEN FALLINI,

and Trustee of the HELEN FALLINI Living Trust and

the HELEN FALLINI Living Trust as the sole

distributee of the Last Will of HELEN FALLINI,

Plaintiffs-Appellants,

v.

THE UNITED STATES,

Defendant-Appellee.

ORDER

(Filed Nov. 8, 1995)

App. 54

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

ORDER

A combined petition for rehearing and suggestion for

rehearing in banc having been filed by the APPELLANT,

and the petition for rehearing having been referred to the

panel that heard the appeal, and thereafter the suggestion

for rehearing in banc having been referred to the circuit

judges who are in regular active service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED and it is curther

ORDERED that the suggestion for rehearing in banc

be, and the same hereby is, DECLINED.

The mandate of the court will issue on November 15,

1995.

FOR THE COURT,

FRANCIS X. GINDHART, CLERK

Dated: November 8, 1995 By /s/ Diane M. Frye

Diane M. Frye

Chief Deputy Clerk

cc: WILLIAM F. SCHROEDER

PETER A. APPEL

JAMES L. HUFFMAN

OPPOSITION

BRIEF

aS) Supreme Court! y. 5,

SS rr iieEnp

MAY 7? 1996

No. 95-1257

In the Supreme Court of the Gn

OCTOBER TERM, 1995

SUSAN L. fF ALLINI, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III

Solicitor General

LoIs J. SCHIFFER

Assistant Attorney General

ANNE S. ALMY

PETER A. APPEL

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether petitioners’ claim of an uncompensated

regulatory taking of their property is barred by the

applicable six-year statute of limitations, 28 U.S.C.

2501.

etha die ttieaca Te ee

TABLE OF CONTENTS

ESE EEE A

Na eae IS ne ee a

ERSTE OT LATER SFO eae a

__ RSREELESSET RES EES Saath Sen aD OE eS ee

RG ESTEE SSS 200 EE EIS gt SCPE ACESS a ea

TABLE OF AUTHORITIES

Cases:

Andrus v. Allard, 444 U.S. 51 (1979) .......cccccccccccece.

Concrete Pipe & Products Co. of Cal. v. Construc-

tion Laborers Pension Trust, 508 U.S. 602 (1993) ..

Delaware State College v. Ricks, 449 U.S. 250

I anita indi bang i ddicyneces ances tests cdencessaceas

Fallini v. Hodel:

O00 2G 1D465 (Bth Cir. 1986) ..............0ccccccsacveceecssces

725 F. Supp. 11138 (D. Nev. 1989), aff'd, 963 F.2d

SST 7

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ............

Guaranty Trust Co. v. United States, 304 U.S. 126

RHA iiasia: Lcd cocenbinietneesheceteseokasecenessascencace

ESS SEEDS SE SR ARE I CT

Kimball Laundry Co. v. United States, 338 U.S.

ENROL ESSE ESTEE SE

Kleppe v. New Mexico, 426 U.S. 529 (1976) .............

Light v. United States, 220 U.S. 523 (1911) ............

National Advertising Co. v. City of Raleigh,

947 F.2d 1158 (4th Cir. 1991), cert. denied, 504 U.S.

a snacccuccernaas

Nollan v. California Coastal Comm’n, 483 U.S. 825

Bn ci tiherices so sninssovbnscecsscsevedsdanssoveveccoxe

Penn Central Transportation Co. v. New York,

a asics sasineirnacsnnavnndakedivesmesaneees

(IIT)

or

IV

Cases—Continued:

San Diego Gas & Elec. Co. v. City of San Diego,

Se Rs WE LMINED sdedcubicaccintsrvesnccidconidaitassateckiies

United Air Lines, Inc. v. Evans, 431 U.S. 553

CRIES I scuntieciiencensseasicaitiies nuh bea eat tated bas lide

United States v. Dickinson, 331 U.S. 745 (1947) .....

United States v. Dow, 357 U.S. 17 (1958) 0.0.0.0...

United States v. Fuller, 409 U.S. 488 (1973) ...........

United States v. Miller, 317 U.S. 369 (1948) ...........

Constitution, statutes and regulations:

U.S. Const. Amend. V (Takings Clause) ....................

Taylor Grazing Act, ch. 865, 48 Stat. 1269, 43 U.S.C.

Re OE IE, suncdniaicicicparcicetieccotabasiancsinemtanshanasabicasibbes

ae EE. NA acticsschiistedevcatavisivecetcdeineiansaniaceence

ae RS es COED pikivicnssindnsidin dug laetal bance peeety

SD ERs MINN icatéescd davaskchbaawndusnadeicunassiodicetigestnads

GD RE rc THE Ascdcaavicrens danandotiacsaudiccdinhersianatdcstersion

Wild Free-Roaming Horses and Burros Act, Pub. L.

No. 92-195, 85 Stat. 649, 16 U.S.C. 1331 et seg. ........

Be Mit. SE: ccrclabaiaceveidssinieisnehe anewigataaned bore

Bee Eee IED hasnnbineladcd\ccicswtaccipeviotiecnchsestiesis

Be Sea PN Niastikssiciinchatpaicele vedansidseaivaadebuanseansstaibacas ices

ee Rees NEE pekenieh nid buicnniibiddcvethtveaiaabidanestuea adie

43 C.F.R.:

ERR ERIEIEE Ste eesti ORF MR ee

Rn el

I I

I

a I a edsicgukeiauasuaeiena)

IE ITN aliases ic

UN I i inh ee

mm OO 0 Wm

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1257

SUSAN L. FALLINI, ET AL., PETITIONERS

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-14)

is reported at 56 F.3d 1378. The opinion of the Court

of Federal Claims (Pet. App. 17-32) is reported at 31

Fed. Cl. 53.

JURISDICTION

The judgment of the court of appeals was entered on

June 8, 1995. A petition for rehearing was denied on

November 8, 1995. Pet. App. 53-54. The petition for a

writ of certiorari was filed on February 6, 1996. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

l. a. Before 1934, grazing on public lands was large-

ly unregulated. “And so, without passing a statute, or

taking any affirmative action on the subject, the

United States suffered its public domain to be used

for [grazing] purposes. There thus grew up a sort of

implied license that these lands * * * might be used

so long as the Government did not cancel its tacit

consent.” Light v. United States, 220 U.S. 523, 535

(1911). Nevertheless, the failure of the United States

to object to grazing on public lands “did not confer

any vested right * * * nor did it deprive the United

States of the power of recalling any implied license

under which the land had been used for private

purposes.” Ibid. .

The unrestricted access to public lands for grazing

led to substantial injury to those lands. Responding

to the need to regulate private use of federal lands,

Congress enacted the Taylor Grazing Act in 1934

“[t]o stop injury to the public grazing lands by pre-

venting overgrazing and soil deterioration, to provide

for their orderly use, improvement, and development,

land] to stabilize the livestock industry dependent

upon the public range.” Taylor Grazing Act, ch. 865,

48 Stat. 1269; see 43 U.S.C. 315-315r. The Taylor

Grazing Act authorizes the Secretary of the Interior

to establish “grazing districts,” 43 U.S.C. 315, and to

issue permits to graze livestock on such grazing

districts, 43 U.S.C. 315b. As was the case with the

unregulated grazing on public lands before 1934, graz-

ing permits under the Taylor Grazing Act do not

“create any right, title, interest, or estate in or to the

[public] lands.” 48 U.S.C. 315b; see also United States

v. Fuller, 409 U.S. 488, 494 (1973).

The Taylor Grazing Act also authorizes the Secre-

tary to issue permits for the construction of range

improvements on federal grazing districts. 438 U.S.C.

315c. Under the Secretary’s regulations, all range

improvements must be made in a manner consistent

with principles of multiple-use management govern-

ing federal lands. 43 C.F.R. 4120.3-1(a); see 48 C.F.R.

2420. Permit holders may install range improve-

ments under either a cooperative agreement or a

range improvement permit. 43 U.S.C. 315¢c. Under a

cooperative agreement, the government and the per-

mit holder agree on an allocation of costs and labor to

construct and maintain the range improvement, and

the government and the permit holder share title to

the improvement in proportion to their respective

contributions. 438 C.F.R. 4120.3-2(a). Under a range

improvement permit, the permit holder pays for

construction and maintenance of the improvement and

holds title to the improvement. 43 C.F.R. 4120.3-3. As

with grazing permits, range improvement permits

and cooperative agreements do not convey to the

permittee or cooperator any right, title, or interest in

any lands or resources held by the United States. 438

C.F.R. 4120.3-1(e).

b. In 1971, Congress enacted the Wild Free-

Roaming Horses and Burros Act (the Act), Pub. L.

No. 92-195, 85 Stat. 649, 16 U.S.C. 13831 et seq. See

generally Kleppe v. New Mewzico, 426 U.S. 529 (1976).

In enacting that legislation, Congress found

that wild free-roaming horses and burros are

living symbols of the historic and pioneer spirit of

the West; that they contribute to the diversity of

life forms within the Nation and enrich the lives

of the American people; and that these horses and

burros are fast disappearing from the American

scene.

16 U.S.C. 1331. Congress declared that wild free-

roaming horses and burros are “an integral part of

the natural system of the public lands,” ibid., and

directed the Secretary to “manage wild free-roaming

horses and burros as components of the public lands.”

16 U.S.C. 1333(a).

To implement those statutory dictates, the Secre-

tary has issued regulations that define “range im-

provement” to include providing habitat for wild

horses and burros. 438 C.F.R. 4100.0-5. The Secretary

has also issued regulations to govern the “manage-

ment of wild horses and burros as an integral part of

the natural system of the public lands under the

principle of multiple use.” 43 C.F.R. 4700.0-2. The

regulations prohibit activities harmful to wild horses

or burros, including removing or attempting to re-

move a wild horse or burro from the public lands

without authorization. 48 C.F.R. 4770.1.

2. Petitioners own a 2,700 acre ranch in Nye

County, Nevada. Their lands are intermingled with

public lands in an area called the Reveille Allotment,

which comprises 657,520 acres. Petitioners have been

issued a grazing preference (a priority position per-

mitting grazing) on the Reveille Allotment to the

extent of 25,730 Animal Unit Months (AUMs) per

year, and they have actually used the full amount of

their preference since 1976.' There are several water

! An Animal Unit Month is defined as the amount of forage

necessary to sustain one cow or its equivalent for one month.

43 C.F.R. 4100.0-5. Petitioners’ preference is sufficient to

sustain approximately 2,144 head of mature cattle. See Pet.

App. 19.

sources on the Reveille Allotment, some developed

and some undeveloped. For the developed water

sources on public lands, petitioners have obtained

range improvement permits allowing them to install

equipment that produces the water. Pet. App. 18-19,

48.

Wild horses protected by federal law have roamed

on the allotment of federal land where petitioners hold

a grazing permit and constructed range improve-

ments, and have consumed water from water sources

on that allotment. The presence of those wild horses

led to litigation in the 1980s between petitioners and

the government. See, e.g., Fallini v. Hodel, 725 F.

Supp. 1113 (D. Nev. 1989), aff'd, 963 F.2d 275 (9th Cir.

1992); Fallini v. Hodel, 783 F.2d 1348 (9th Cir. 1986).

In 1983, petitioner Joseph Fallini wrote a letter to the

Bureau of Land Management (BLM), Department of

the Interior, purporting to bill the government for the

water that wild horses had consumed up to that point.

Pet. App. 7.

3. Petitioners initiated this lawsuit in November

1992. Petitioners’ complaint (Pet. App. 35-52) alleged

that the United States took their property to provide

water for the wild horses. Petitioners sought com-

pensation for the water consumed, either from the

date of the enactment of the Wild Free-Roaming

Horses and Burros Act or from six years prior to the

date of the complaint. Jd. at 40-42.

The Court of Federal Claims granted summary

judgment for the United States. Pet. App. 17-32. It

held that petitioners owned no property interest in

the water consumed by the horses, because they

owned no water in excess of the amount necessary to

satisfy their annual grazing preference of 25,730

AUMs. Id. at 24-25. The court also noted that, under

6

the Taylor Grazing Act, no compensable expectancy

in use of the public lands is created as a result of the

issuance of a permit. Jd. at 29. Thus, it concluded

that petitioners had no compensable expectancy in the

right to exclude wild horses from the allotment. Jbid.

4. The court of appeals did not reach the merits of

the trial court’s conclusion. Rather, it held that

petitioners’ complaint should be dismissed because it

had not been filed within six years after the cause of

action accrued. Pet. App. 1-14. The court observed

that, under the applicable statute of limitations, 28

U.S.C. 2501, a cause of action accrues “when all the

events have occurred that fix the defendant’s alleged

liability and entitle the plaintiff to institute an

action.” Pet. App. 6-7. It ruled that, at the latest, the

cause of action accrued on October 3, 1983, when

Joseph Fallini sent his “bill” to BLM. That action, it

noted, demonstrated that petitioners were “aware of

all the facts necessary to establish the liability of the

United States for the alleged taking.” Jd. at 7.

The court of appeals rejected petitioners’ two argu-

ments to avoid the limitations bar. First, the court

rejected petitioners’ argument based on United

States v. Dickinson, 331 U.S. 745 (1947), which in-

volved the accrual of a cause of action against the

United States after the government gradually flooded

privately owned land. The court acknowledged that

Dickinson held that the plaintiffs in that case were

entitled to “postpone filing suit until the nature and

extent of the taking [was] clear [and] * * * ‘the

situation [became] stabilized.’” Pet. App. 8-9. But

based on this Court’s subsequent decision in United

States v. Dow, 357 U.S. 17, 27 (1958), the court of

appeals concluded that Dickinson applies only “when

it was uncertain at what stage * * * the land had

become appropriated to public use.” Pet. App. 9. “In

the case at bar,” the court noted, “the ‘permanent

nature’ of the taking was evident to [petitioners] at

least) by 1983, when they sent their water bill to the

Bureau of Land Management.” Jd. at 11.

The court of appeals also rejected petitioners’ con-

tention that “every drink by every wild horse [is] a

new and independent federal taking compensable

under the Fifth Amendment.” Pet. App. 12. The

court of appeals rejected that argument as incon-

sistent with petitioners’ theory that “the Wild Free-

Roaming Horses and Burros Act deprived [them] of

their right to exclude wild horses from the developed

water sources on the Reveille Allotment.” Jd. at 12-

13. “In light of those allegations,” the court held, “it

is the enactment of the statute, not the individual

intrusions by the horses, to which a court must look

to determine if there has been a taking.” Jbid. Ac-

cordingly, the court concluded that “governmental

action cannot be regarded as recurring with every

new drink taken by every wild horse, even though the

consumption of water by the wild horses imposes a

continuing economic burden on [petitioners].” Jd. at

13-14. It therefore held that petitioners’ claim “must

be regarded as accruing long before they filed their

present suit.” Jd. at 14.

ARGUMENT

1. In this Court, petitioners argue that the statute

of limitations never runs on their claim as long as the

purported regulatory taking is still ongoing. Analyz-

ing a regulatory taking as “an ongoing, temporary

taking of indeterminate duration” (Pet. 9), petitioners

assert that a claim is timely at any point during the

time the regulatory measure is in effect. In similar

8

fashion, they submit that a regulatory taking should

be analyzed under the “continuing wrong” doctrine

(Pet. 20-21), which (as they acknowledge) has not

previously been applied to regulatory takings.

Petitioners did not present either of these theories

to the panel of the court of appeals that decided this

case. In its brief on appeal, the United States (as

appellee) defended the merits of the trial court’s de-

cision and also argued that the claim was not timely.

In their reply brief, petitioners relied on the Dickin-

son “stabilization” doctrine (see pp. 6-7, supra), and

argued that their complaint was timely because the

harm to them did not stabilize until November 28,

1986. See Pet. C.A. Reply Br. 24-25; see also Pet. App.

40 (¢ 14), 41 (¥ 16) (same position taken in petitioners’

complaint). Only in their petition for rehearing did

petitioners advance their current theory of the appli-

cation of the statute of limitations to this case. In-

deed, petitioners now concede that Dickinson, on

which they relied before the panel, “is not the prece-

dent which should control this case.” Pet. 6. That

inconsistency in petitioners’ legal position is itself a

significant factor weighing against review by the

Court.

2. In any event, petitioners’ arguments that their

claim is not barred by the statute of limitations are

without merit. Their principal argument is that, be-

cause a court cannot know whether the regulatory

measure that allegedly amounts to a taking will be

continued indefinitely or will be altered by amend-

ment, a court cannot make a single, reasonably accur-

ate determination of the just compensation that is

due. Pet. 9-10. Petitioners suggest that a court

presented with a regulatory taking claim will either

overcompensate or undercompensate the person

9

whose property is taken, if it is required to evaluate

the effect of the regulatory measure on the taken

property at a single point. Pet. 14-15. Therefore,

they contend, a court must be allowed to entertain a

regulatory taking claim at any point while that regu-

latory measure is in effect.

Petitioners’ argument cannot be squared with the

language of the applicable statute of limitations, 28

U.S.C. 2501. Section 2501 provides that “[e]very

claim of which the United States Court of Federal

Claims has jurisdiction shall be barred unless the

petition thereon is filed within six years after such

claim first accrues” (emphasis added). Congress’s use

of the words “first accrues” indicates that it intended

that plaintiffs file actions as soon as they become

aware of the facts giving rise to a claim (including a

taking claim), and not wait until all the effects of

the asserted taking, or other governmental action,

are felt.

Furthermore, petitioners’ policy arguments are

mistaken. Courts are familiar with the concept of

temporary takings and have a number of tools avail-

able to arrive at a determination of the value taken.

See generally San Diego Gas & Elec. Co. v. City of

San Diego, 450 U.S. 621, 657-658 (1981) (Brennan, J.,

dissenting); Kimball Laundry Co. v. United States,

338 U.S. 1, 21 (1949); see also United States v. Miller,

317 U.S. 369, 373-376 (1943). If petitioners succeeded

in persuading the courts that the regulatory measure

amounted to a taking, the government would then

have to decide whether to exercise its power of emin-

ent domain, by paying the compensation necessary to

make the regulation effective on a permanent basis, or

to rescind the challenged regulation. In the latter

event, if the court further concluded that the effect of

10

the regulation up to the time of rescission amounted

to a temporary taking of property within the meaning

of the Fifth Amendment, then the government would

be required to compensate petitioners in some

manner for the value of the property interest that was

taken during the period in which the regulation was

applicable to the property. See First English Evan-

gelical Lutheran Church v. County of Los Angeles,

482 U.S. 304, 321 (1987).

Petitioners also err in arguing that the policies of

statutes of limitations are not served by requiring

claims like the one in this case to be presented at the

earliest opportunity. As just explained, in the case of

a regulatory measure, once the courts have deter-

mined that the challenged governmental action

amounts to a taking for which no compensation has

yet been provided, the government must decide wheth-

er to exercise its power of eminent domain through

the payment of compensation, or to amend the regu-

lation. Accordingly, early presentation of regulatory

taking claims ensures that the challenged regulation

is reevaluated promptly, and also ensures an oppor-

tunity for the government to limit its liability, if a

temporary taking is found. By contrast, delay in

determining that a regulatory measure amounts to a

taking presumably would often increase the amount

that the government would be required to pay in

compensation for a temporary taking. That possibil-

ity, in particular, squarely implicates the govern-

ment’s (and the public’s) interest in putting “an end to

the possibility of litigation after the lapse of a

reasonable time.” Guaranty Trust Co. v. United

States, 304 U.S. 126, 136 (1938).

Finally, this case does not involve a “continu-

ing wrong,” as petitioners contend (Pet. 20-21).

11

“A continuing violation is occasioned by continual

unlawful acts, not continual ill effects from an

original violation.” National Advertising Co. v. City

of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991), cert.

denied, 504 U.S. 931 (1992); see also Hart v. United

States, 910 F.2d 815, 818 (Fed. Cir. 1990). In National

Advertising, the court held that a challenge under 42

U.S.C. 1983 to an ordinance banning off-premises

outdoor advertising signs was barred by the

applicable three-year statute of limitations, since the

plaintiff was aware at the time of the ordinance’s

enactment that its signs would become noncon-

forming after the end of a five and one-half year

“grace period” following enactment of the ordinance,

yet it delayed suit until after that grace period

expired. 947 F.2d at 1166-1168. The court stressed

that “we have found no continuing harm violation

where any harm to the plaintiff stemmed only from

the initial application of a regulatory prohibition.” Jd.

at 1167.

As the court of appeals in this case concluded, the

taking in this case (if any taking occurred) is simi-

larly “the government’s directive forbidding [petition-

ers] from shooing the horses away from the water

that [petitioners] have produced at their developed

water sources.” Pet. App. 13. That directive consti-

tutes the alleged taking, and the drinking of water by

the wild horses constitutes only the ensuing

“injury” to petitioners’ interests.” Under traditional

* As the court of appeals explained, this case is analogous to

one in which the government adopts a measure requiring

landowners to allow members of the public to walk across their

beachfront property, thereby effecting a taking of an easement

over the property. See Pet. App. 12 (citing Nollan v. Cali-

fornia Coastal Comm’n, 483 U.S. 825, 831 (1987)). In the latter

12

principles governing statutes of limitations, peti-

tioners’ cause of action “first accrued” on the date

that the directive first affected their property inter-

est, not when all the consequences were felt. Cf.

Delaware State College v. Ricks, 449 U.S. 250, 258

(1980); United Air Lines, Inc. v. Evans, 431 U.S. 553,

558 (1977). Petitioners’ action is therefore untimely.

3. Even if the court of appeals erred in applying the

statute of limitations to the facts of this case, review

would nevertheless not be warranted because peti-

tioners’ taking claim is without merit. The undis-

puted evidence before the trial court demonstrated

that petitioners have continued their ranching oper-

ation at their full preference of 25,730 AUMs every

year since the enactment of the Act. Pet. App. 19.

Petitioners have an interest only in the amount of

water that they can put to beneficial use by virtue of

their federal grazing preference, and they do not, in

| any event, have any right to water in excess of the

amount needed to water their cattle. Jd. at 25.

Petitioners have argued that their property has

been taken because, to meet the water needs of the

wild horses, they are effectively required to produce

more water than is necessary to meet the needs of

their cattle. Petitioners have not, however, been de-

prived of the economically beneficial use of whatever

property interests they may have. They have shown

merely that the Act has an impact on their cost of

doing business. This Court has repeatedly ruled that

situation, the taking occurs on the date the measure requiring

public access becomes effective. “Every instance of a beach-

comber using the public easement does not constitute a separate

taking, even though each use may inflict psychic or economic

injury on the landowner.” Pet. App. 12.

13

such incidental economic effects of regulation do not

themselves constitute takings of property. Concrete

Pipe & Products of Cal. v. Construction Laborers

Pension Trust, 508 U.S. 602, 643-644 (1993): Andrus v.

Allard, 444 U.S. 51, 66 (1979); Penn Central Trans-

portation Co. v. New York, 438 U.S. 104, 125 (1978).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYs, III

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

ANNE S. ALMY

PETER A. APPEL

Attorneys

MAY 1996