# Petition for Writ of Certiorari — Fallini v. United States, 116 S. Ct. 2496 (1996) (No. 95-1257) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1819%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 ## Text 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. Pe ala Ath Ad A MB bath, Oil ill TABLE OF CONTENTS Page ee ee 8 OR oy > ee i 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 S9SJOH PIAA PUB B]NRD 4 J9PJQ UNOD L861 Jepuns S6l 1661 | g0c‘0s9's | OOr‘IE! O01 ‘ps8 Sol g0s‘9¢9'8 | 009°L8 OO€‘OI8 sor | SBI 0661 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 % 7S %9S | BBP'9Z6'LI | OBS‘LLE‘6 O8z‘ooI‘ol | sor | ooc'c | veer % 7S %9S | 899°8Z9°LI | OvL‘6L0°6 Ovw'zos'6 | sor | sez'z | exer % 6b %ES | B96'EI8°91 | O90'S9z‘s ogz‘z86'8 | sor | zso'z | zeor % Zr %Ly | 80v'06L'rI | OOS‘Ibz‘9 —00z'996'9 | sor | esl | 1861 %SE %Iy | BvL‘97Z'EL | Ov8‘LLo’» — ovs‘oow's | sor | cect | ogi % 6£ “ry | 87S‘610'vl | Oz9‘OLy's —oze‘eet‘o | sor | vip't | 6xol %ZE % BE 889°979°Z1 | O8L°LLO'r 08%‘008"» S9I 960°T 8161 % 7Z %8Z | SrE‘SO6'O! | Ovr'ose’z opl‘ezo’c | sor | €oz LL6l %31 %St | szi‘vse‘or | ozz‘ses‘t oze‘uss'z | sor | vas 9161 % EI %1Z | Si‘vse’6 | Orz‘soc! Ove'zzo'z | sor | co» SL61 %8 %91 | sor'pze’6 | o9z‘suL 096'L6>'I sot | Zee yL61 »P %71 | sro‘Ros’s | OvL‘6IE Ove'z¥0'I sor | BEZ £161 %1 %01 | O6€'886'L | Ov6'9S Ov9'6LL gor | SLI ZL61 we 0£9‘S99°9 088‘ISs 9z1 161 ‘ON [37 ‘ON [e3oT ee. eee Fe ae | epemony sesso | sea, JOE AM [OL : (re0k sod *[e3) S9SJOH % puewoq Joe asso SHSUOH (TIM - GNVWAC WaLVM 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 T e6ea ‘W Lissccg >>> Oo» aaEaoaoaoaooaoIoaoaoaoaoaoaaEaEaIlIlaEamm—e™WPayvyswsSSN|H|] | | "ouy ‘Sujjeqen Sujserg BHATIEN UYOL j2}OL 4O JUSSI, AYA *99 S88J0H PIIM | %08 313389 ed ee : eB %OL SOSJ0H PIIM | L661 ySél | ' : - ! [BIOL jO JUsdIEg ! i hi { | | %9S SOS810H PIIM ae | a13318D | ! SOP 313389 “ ySéL LZ6L youey s6uluds uM SOSIOH PIIAA pue he kg pueweg JOJEAA App. 45 2890 ~~ ¢ ebea ‘¥ Lrzia«g Sy ‘ereue) ‘Ou “Supequen Sulyseg ‘ SHAUN UuOr Aq pesedelg 686i LOGi SEG CREGL 186i 616i L/6L SLGi ELGi 116) - 0001 $ Z - COOL SS - CooL Os - COOL SIS - 0001 OFS se8oK OMFS =), youey s6uisds VIM] JOJEAA SPIACIg O} }SO4D jej}OL cy ‘exeve) ‘ou “Suneqen Sul) se1g ' SyAHeN uuor Ag peredelg L664 686i LO6i SOG CBGi 186k 6G LiGi GSLGL ELGi 1G VoHeiNdog O40 Te youey s6urids vim uoljeindodg 8SJOH PIIM , 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 1871-1001 Tetel 61,583,028 61,087.518 62.001.144 61,780,558 $92) see $96,374 $1,019,961 $757,922 $83,318 $841,240 __The opportunity cost of funds ie catovieted using the mid—vee | you T- BM rete App. 47 FBV p abeg ‘vy Uda SOSJOH PIM PUue 91}}eD kg PUBWIG JO}EMA ou ‘exeve) + “Ouy "Supeqzeyy Suyserg SHAIIEN UYOT Aq PesEdelg L66L 6864 86 SB6L CBGL IBG6L 616i 11Gb SLGb ELGL 11Gb LLL AIM Adal Aste hud ddd hd deemed s0820H IFO) BIOL jO jusD.IeYg youey sBurds uml SOSIOH PIM 8 8}2D O} UO!}EOOIly JOJEM Sy “¥xeve) ‘ou ‘Supnequeny Suse THAIN UNOr AQ pesEdelg L66L 696i 186i OSGi CVE LEG 616i L161 SLGl ELGi 116i LSID ITI IOI ODIO IOI OI Ooo'008 Te, y us sends - 000'008E / - 000'000'9 y Yt 000'00$'9 | , - 000'000'8 . ' - 000'008'6 - 000000": t sUuciIeH youey s6urjds WML 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% 1991 25,730 195 2.340 7,826,208 am 28% 854,100 5% 55% 6,680,308 aay Sé ‘Bxeue> “ouy ‘Gupjequeny Suyjseig PAAIIEN UYOr Aq pesEdesg L668 686 L86L SB86L CSG L8GL BEL Let Si6L EZ6L ilé6t Kf op Po ppp i tfigey Ph OES AE AEE EME AE RE MOE PP Sa - OZ - OF - 09 - 08 - OOL AiGdng |B8}01 40 jusdeg youey sOurids vim | S98SJIOH pue 9j}}eD O} UOI}EOOI/y aHeu04 | | Sy ‘exeuey | ‘uy ‘Suneqey Suyserg BHAUIEN UYOr Aq pesedaug | L66L 686L L86L SBE CEL 186 GEL LLEL SLGL EL6L 1261 000°: LIZ II ae L 9000'S SE SE AE EE AEE AE A bE EL | 0900'S - 000°L - 000'6 - OOO'LE - OOO'EL - OOO0'SL - OOO'LE ; - 000'6t - OOO'LZ di - 000'EZ J\ |ooo'sz Se + Se RE TA ES A SR RN ee ees nee see - OOO LZ ag + 000°6Z SYILOW 1UN Pay youey s6uridg uM S8SJOH pIIAA pue ayeD Ag puewsg way App. 51 % %e %26 020'sz ose ove’z sol 961 oel'sz Less % “8 %Z8 096’ LZ Ovz ozz'z Sol sei oez'sz oess “Ee %O1 %06 9v9'sz 9t6 9162 Sol cvz oe1'sz 6est ne %SI “Se OLt‘or oor'z ovr’ so ole Oe'sz eos. “LE %ZP “eS 92 rr 9ir'oh 96c'e@ so ces's 0ez'sz 6961 %re %6E %19 9S\'zr err’ Szv'9h so 6oc'h oez'sz 9981 “LY %1S %6r 010'2s o9e'rz Ove’sz S91 sez oez'sz sest ser %ZS %er ZOr'es 269'SZ 29 lz Sol g0c'z oel'sz vee “LP ‘IS “er 99S'25 919'rz 959'9z sot azz oeL'sz cesi “SP %6P “IS ¥St'0S vv9'ze 9Z9'rz S91 290% OeL'Sz C961 wee “EP “lS OLs' ry oo1'Zb 080'61 so. oes" | oez'sz ee “ze “LE %E9 $zS'0r Tt ed 962'rh $91 ces oez'sz 98. “SE %OPr %09 969'Zy 296'r! 996'91 Sol rie’s OLL'Sz 6181 %6Z “rE %99 zee'se ZL‘ Ls zSi'es Sol 960" 4 oez'sz e281 %61 %SZ %SL 991've 9sv'9 ocr’ S91 Yd OtL'sz 1261 “SI %1zZ %EL ec.'ze 8Z0'S 900'2 Soi res oeL'sz 9261 %Lh %et “ze 9ez' it 92s‘ 9Ss'S sot cw Oez'sz sist %L ark %98 vee'6z pzi'z v01'> $91 racy oez'’sz 161 %E %O1 %06 99S'8z 9.8 9se'2 So ecz 0e2'sz £288 % “8 %26 9e8'sz 9S1 gz sol et oaz'ez Z264 %0 %Z %ES Zig’ iz zis's sz 00102 1261 sequinu Jsequinu JOP UNCED pebe] 0A BIOL emery S.ANV yeBe] 10AQ (e101 9961 29pur, seE20}4 s.ANv 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 c [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1819%3A1. Public record. Not legal advice.