Petition for Writ of Certiorari — Cary v. United States, 129 S. Ct. 2878 (2009) (No. 08-1398)

oupreme Court, U.S.

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0.~ 981 398 MAY 13 2009

In ThHOFFICE OF THE CLERK

Supreme Court of the Anited States

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RICHARD CARY, SUSAN CARY, PATRICIA GEERTS,

SHARON HENRY, JAMES HERZOG,

DIANE KNUEFFER, PATRICIA MARTIN,

ROBERT S. MARTIN, JANET MARIE PRIATT,

DONA SCHNEIDER, DOUGLAS SCHWAEBE,

CARL SCHWEIKERT, KATHERINE SCHWEIKERT, DAVID

SOUTHCOTT, and MARY CAROL WILDER,

on behalf of themselves and all others similarly situated,

Petitioners,

UNITED STATES,

Respondent.

*

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

+

PETITION FOR WRIT OF CERTIORARI

+

Mark S. Grotefeld Maura Walsh Ochoa

Counsel of Record Todd C. Harshman

GROTEFELD & HOFFMANN, LLP Waylon J. Pickett

180 North LaSalle Street GROTEFELD & HOFFMAN, LLP

Suite 1810 505 Sansome Street

Chicago, IL 60601 Suite 1950

(312) 551-0200 San Francisco, CA 94111

(415) 344-9670

Counsel for Petitioners Dated: May 13, 2009

THE LEX GROUPDC ¢ 1750 K Street N.W. Suite 475 * Washington, DC 20006

(202) 955-0001 ¢ (800) 815-3791 @ Fax: (202) 955-0022 ewww.thelexgroupdc.com

QUESTIONS PRESENTED FOR REVIEW

s. For purposes of asserting a cognizable

takings claim, have the Petitioners properly pleaded

and shown that the Unites States’ authorized actions

directly, naturally, or probably resulted in the taking

of the taking of private property during the Cedar

Creek Fire of October, 2003?

2. Does the ignition of the Cedar Creek

Fire by a lost hunter amount to an intervening act

severing the chain of causation between the Forest

Service’s acts and the Petitioners’ damages?

2. Do assertions of risk-decreasing actions

by the Forest Service amount to i ervening acts

severing the chain of causation between the Forest

Service’s acts and the Petitioners’ damages?

4. Must a fire be inevitably recurring in

order to effectuate a taking of personal property and

real property other than the land itself?

RULE 14.1(b) STATEMENT

A list of all parties to the proceeding in the

court whose judgment is the subject of this petition

is as follows:

Plaintiffs-Appellants and Petitioners: Richard

Cary, Susan Cary, Patricia Geerts, Sharon Henry,

James Herzog, Diane Knuepfer, Patricia Martin,

Robert S. Martin, Janet Marie Priatt, Dona

Schneider, Douglas Schwaebe, Carl Schweikert,

Katherine Schweikert, David Southcott, and Mary

Carol Wilder, on behalf of themselves and all others

similarly situated.

Defendant-Appellee and Respondent: United

States.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

RULE 14.1(B) STATEMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

FE iin tisdale eeerniniarints 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

I. REQUIRING THAT THE

PROPERTY OWNERS PLEAD A

GOVERNMENT ACT

AUTHORIZING THE

ACCUMULATION OF FUEL IN

THE CNF IS CONTRARY TO

ESTABLISHED PRINCIPLES

OF CAUSATION IN

UNINTENTIONAL TAKINGS

CASES

The Property Owners

Pleaded and Showed

through the United States’

Own Documents that

Their Damages Were the

Direct, Natural, or

Probable Result

Government Actions

Requiring a Claim to

Allege an “Authorized Act”

at Any or All Intermediate

Steps in the Causal Chain

Is an Arbitrary Standard,

Given the Undisputed

Evidence in the United

States’ Own Documents

And the Deference Due

Allegations at the Pleading

HOLDING THAT THE

IGNITION OF THE CEDAR

FIRE BY A LOST HUNTER IS

AN INTERVENING CAUSE IS

CONTRARY TO SETTLED LAW

AND THE OPINIONS OF THIS

PPR iia cooks tie eda hee 19

HOLDING THAT RISK-

DECREASING ACTIONS

PURPORTEDLY

UNDERTAKEN BY THE

FOREST SERVICE ARE

INTERVENING CAUSES IS

CONTRARY TO SETTLED LAW

AND THE OPINIONS OF THIS

COURT

HOLDING THAT A WILDFIRE

MUST BE INEVITABLY

RECURRING IN ORDER TO

TAKE PROPERTY BY FIRE IS

IN CONFLICT WITH THE

FIFTH AMENDMENT TO THE

UNITED STATES

CONSTITUTION AND EVERY

TAKINGS CASE FINDING

THAT DESTROYED PROPERTY

HAS BEEN TAKEN

CONCLUSION

APPENDIX

Opinion of

The United States Court of Appeals for the

Federal Circuit

entered January 16, 2009............ bao tiees Sie la

Order of

The United States Court of

Federal Claims

Re: Granting Defendant’s Motion for

Judgment on Pleadings

entered November 1, 2007

Order of

The United States Court of Appeals for the

Federal Circuit

Re: Denying Petition for Rehearing

entered February 12, 2009..................... 27a

Class Action Complaint for

Inverse Condemnation

entered October 13, 2006........................ 29a

VL

TABLE OF AUTHORITIES

CASES

Cotton Land Co. v. United States,

75 F. Supp. 232 (Ct. Cl. 1948) 3, £1, 12, 35

Daily v. United States,

116 Ct. Cl. 723, 90 F. Supp. 699 (1950)......... 28

Exxon Company, U.S.A. v. Sofec, Inc.,

517 U.S. 831 (1996) 9, 10, 20, 22

Fisher v. '/nited States,

402 F.3d 1167 (Had. Civ, 2008)..5..0.cccccscceccccasce. 4

Gould Inc. v. United States,

935 F.2d 1271 (Fed. Cir. 1991) 14, 23, 24

Mars Inc. v. Kabushiki-Kaisha Nippon Conlux,

24 F.3d 1368 (Fed. Cir. 1994)

Moden v. United States,

404 F.3d 1335 (Fed. Cir. 20085)............... passim

Pashley v. United States,

140 Ct. Cl. 535,

156 F. Supp. 737 (1957) .....c.c.ecccsseseseeeseee- 17, 22

Reynolds v. Army & Air Force Exch. Serv.,

846 F.2d 746 (Fed. Cir. 1988)

Vlll

Ridge Line, Inc. v. United States,

346 F.3d 1346 (Fed. Cir. 2003) ............ 4, 10, 26

Teegarden v. United States,

42 Fed. Cl. 252 (1998) .....cccccccccccsesesee Bee 4

Thune v. United States,

41 Fed. Cl. 49 (1998)

United States v. Lynah,

188 U.S. 445 (1903)

United States v. Northern Trust Company,

372 F.3d 866 (7th Cir. 2004)

Warner v. Santa Catalina Island Co..,

282 P.2d 12 (Cal. 1955)

CONSTITUTIONAL PROVISION

U.S. Const. amend. V (“Takings Clause”)......2, 10, 27

STATUTES

SOU BOB icv eee 2,6

28 U.S.C. § 1254(1)

28 U.S.C. § 1491(a)(1) (“The Tucker Act”)

28 U.S.C. § 2101(c)

RULES

SUP. Cr. R. 13.1

SuP. CT. R. 13.2

TREATISES

57A Am. Jur. Negligence § 578 (2008)...............19, 20

O7A Am. Jur. Negligence § 583 (2008)............... 19, 20

OTHER MATERIALS

USDA Forest Service, California Fire Siege

2003: The Story, October 21 — November 4,

USDA Forest Service, Draft Envutronmental

Impact Statement for Revised Land

Management Plans, Pacific Southwest Region

(May 2004)

USDA Forest Service, Draft Land

Management Plan Part 1: Southern California

National Forest Vision (May, 2004)

USDA Forest Service, Fire Restriction and

Emergency Closure Plan, Cleveland National

Forest, U.S. Forest Service, Region Five (April,

Nee dungvecccuersecovevececcevcsscscscscscesess f

USDA Forest Service, Gen. Tech. Rep. PSW-7,

Can Southern California Wildland

Conflagrations Be Stopped? (1974) ..............c0cceceees 5,

U.S. Department of the Interior, et al., Review

and Update of the 1995 Federal Wildland Fire

Management Policy (January 2001)

U.S. General Accounting Office, GAO/T-

RECED-98-273, Western National Forests:

Catastrophic Wildfires Threaten Resources

and Communities 1 (1998) passim

Urban Wildland Interface Communities

Within the Vicinity of Federal Lands That Are

at High Risk From Wildfire, 66 Fed. Reg.

Se See CHIE, BF, DEED seavckicssccassevnseveveentavsaniesss 8,15

PETITION FOR A WRIT OF CERTIORARI

The individual Plaintiffs-Appellees (“Property

Owners’) respectfully petition for a writ of certiorari

to review the opinion and judgment of the U.S. Court

of Appeals for the Federal Circuit.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for

the Federal Circuit, dated January 19, 2009 is

officially reported at 552 F.3d 1873, and is

reproduced at App. la-18a.

The opinion of the Court of Federal Claims,

dated November 9, 2007, is officially reported at 76

Fed. Cl. 145 and is reproduced at App. 19a-26a.

JURISDICTION

The judgment of the U.S. Court of Appeals for

the Federal Circuit sought to be reviewed was

entered on January 16, 2009. The Property Owners’

timely filed Petition for Rehearing was denied on

February 12, 2009, and the court’s denial is

reproduced at App. 27a-28a. This petition is timely

under 28 U.S.C. § 2101(c) and Supreme Court Rules

13.1 and 13.2 because it is being filed within 90 days

of the denial of the Petition for Rehearing. This

Court has jurisdiction to review the judgment of the

U.S. Court of Appeals for the Federal Circuit

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional provision involved

is the Fifth Amendment to the United States

Constitution, which states, in full:

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment

of a grand jury, except in cases arising

in the land or naval forces, or in the

militia, when in actual service in time

of war or public danger; nor shall any

person be subject for the same offense

to be twice put tn jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life, liberty,

or property, without due process of law;

nor shall private property be taken for

public use, without just compensation.

The relevant statutory provision involved is

16 U.S.C. § 475 (“Purposes for which national forests

may be established and administered”), which

states, in full:

All public lands’ designated and

reserved prior to June 4, 1897, by the

President of the United States under

the provisions of section 471 of this

title, the orders for which shall be and

remain in full force and_ effect,

unsuspended and unrevoked, and all

public lands that may hereafter be set

aside and reserved as national forests

under said section, shall be as far as

practicable controlled and administered

in accordance with the _ following

provisions. No national forest shall be

established, except to improve and

protect the forest within’ the

boundaries, or for the purpose of

securing favorable conditions of water

flows, and to furnish a continuous

supply of timber for the use and

necessities of citizens of the United

States; but it is not the purpose or

intent of these provisions, or of said

section, to authorize the _ inclusion

therein of lands more valuable for the

mineral therein, or for agricultural

purposes, than for forest purposes.

STATEMENT OF THE CASE

This dispute arises out of the destruction of

the Property Owners’ real and personal property in

the Cedar Fire, which originated in the Cleveland

National Forest (“CNF’) on October 25, 2003 and

quickly spread to surrounding areas, becoming one

of the largest conflagrations in California history.

App. 3a. The CNF is the southernmost national

forest in California, and comprises approximately

460,000 acres of varying terrain, and provides, inter

alia, habitat for protected species, natural resources,

and a wide selection of recreational opportunities. It

is undisputed by the parties that the Cedar Fire

began as a small signal fire started by a lost hunter

in the CNF on the opening day of deer season. Jd.

Notwithstanding the ignition of the wildfire

by a third party, the Property Owners’ complaint

(reproduced at App. 29a-42a) alleges that the acts of

the United States Department of Agriculture's

Forest Service caused a taking of private property

without just compensation. The Property Owners

allege that the implementation of the Forest

Service’s land management policies, specifically the

acts of extinguishing nearly every single forest fire

in the CNF over the last century, has directly,

naturally, and foreseeably led to the destruction of

the private property at issue by catastrophic

wildfire.

The issues in this Petition arise from the

United States’ motion for judgment on the pleadings.

Because this motion when brought against a takings

claim also challenges subject matter jurisdiction, the

Property Owners bear “the burden of establishing

that such jurisdiction exists.” Mars Inc. ov.

Kabushiki-Kaisha Nippon Conlux, 24 F.3d 1368,

1372 (Fed. Cir. 1994). Moreover, the unique

development of inverse condemnation jurisprudence

dictates an examination into the facts of the dispute

to determine that treatment under the Takings

Clause is appropriate because the merit of the claim

informs the question of jurisdiction. See, Ridge Line,

Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir.

2003); Fisher v. United States, 402 F.3d 1167, 1171-

72 (Fed. Cir. 2005) (en banc). Under these

circumstances a “court may consider relevant

evidence in order to resolve [a] factual dispute.”

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d

746, 747 (Fed. Cir. 1988).

Accordingly, the Court of Federal Claims,

which had jurisdiction over this dispute pursuant to

the Tucker Act (28 U.S.C. § 1491(a)(1)), considered

several government documents submitted by the

Property Owners.! This evidence shows that

weather, topography, and vegetation create what is

known as “fire season” in California, usually during

the summer and fall months, during which fire is an

unavoidable fact of life for Southern Californians

and a part of the area’s natural ecology. USDA

Forest Service, Draft Land Management Plan Part 1:

Southern California National Forest Vision (May,

2004), p. Vision 6; USDA Forest Service, Gen. Tech.

Rep. PSW-7, Can Southern California Wildland

Conflagrations Be Stopped? (1974), p. 1; App. 3a-4a.

Notably, fire season in the CNF is not limited to

summer and fall, but is in fact year round. USDA

Forest Service, fire Restriction and Emergency

Closure Plan, Cieveland National Forest, U.S. Forest

Service, Region Five (April, 1992), p. 1; App. 4a. Fire

danger is further exacerbated by the impact of Santa

Ana winds, which occur’ seasonally between

September and December. Can Southern California

Wildland Conflagrations Be Stopped?, supra, p. 2;

Avp. 4a. Historically, these factors resulted in a fire

season in Southern California that was

characterized by frequent, low-intensity fires. U.S.

General Accounting Office, GAO/T-RECED-98-273,

1 This evidence, some of which is cited below, was also part of

the parties’ joint appendix on appeal to U.S. Court of Appeals

for the Federal Circuit.

Western National Forests: Catastrophic Wildfires

Threaten Resources and Communities 1 (1998).

Because even these smaller, less destructive

fires threaten national timber reserves and water

supplies, the Forest Service implemented a policy of

suppressing all wildfires in the national forests

beginning no later than 1911. U.S. Department of

the Interior, et al., Review and Update of the 1998

Federal Wildland Fire Management Policy (January

2001), p. 1; and see, 16 U.S.C. § 475. Today,

wildfires continue to be suppressed for the protection

of natural resources, including timber, air quality,

water, and endangered species, and for’ the

protection of public outdoor recreational

opportunities. App. 4a. Although after 1968 the

suppression of some naturally occurring fires was no

longer mandated by policy (as long as the fire

remained within established parameters), in practice

little has changed during the last century. Review

and Update of the 1995 Federal Wildland Fire

Management Policy, supra, p. 1. For example, the

Forest Service noted in 2003 that 97% of wildfires in

California were still extinguished within 24 hours of

their inception. USDA Forest Service, Zalifornia

Fire Stege 2003: The Story, October 21 — November 4,

2003, p. 7; App. 5a.

As a result of the Forest Service’s approach to

fire suppression over the past century, the fire

ecology of Southern California has been drastically

altered. Review and Update of the 1995 Federal

Wildland Fire Management Policy, supra, pp. 2-3

and 5-6; Western National Forests: Catastrophic

Wildfires Threaten Resources and Communities,

supra, pp. 1-5. By extinguishing the natural,

periodic fires in the CNF, the Forest Service changed

the ecology of the forest to one where flammable

vegetation simply accumulated. Western National

Forests: Catastrophic Wildfires Threaten Resources

and Communities, supra, pp. 1-2; App. 4a. By

disrupting the natural, frequent, low-intensity fires,

the United States created a tinderbox out of the

CNF, which is now characterized by less frequent,

uncontrollable, mega-fires. Jd. The Forest Service

has been aware of this state of affairs for more than

three decades, at least. Can Southern California

Wildland Conflagrations Be Stopped?, supra, p. 6;

App. 4a.

The Court of Federal Claims did not dispute

the Property Owners’ factual showing, but granted

the United States’ motion for judgment on the

pleadings on the basis that the Cedar Fire was

ignited by a hunter, rather than by an agent of the

government. App. 25a. On appeal, the Federal

Circuit agreed that the ignition of the fire by a lost

hunter was an intervening act and also held: that

the Property Owners had not met the causation

requirement of a takings claim, that purported risk-

decreasing actions by the Forest Service constituted

intervening acts, and that fire could not cause a

taking unless it was recurring. App. la-18a.

The instant Petition disputes the propriety of

these holdings under established law. The Property

Owners pleaded a discrete causal chain between

Forest Service acts and the taking of private

property, by showing that the direct, natural, and

probable result of the continuous suppression of

forest fires 1s the accumulation of fuel, and that the

accumulation of fuel in a fire-based ecology such as

the CNF directly, naturally, and probably resulted in

the conflagration known as the Cedar Fire. This

contention is borne out by the United States’ own

documents, showing that the government knew its

actions over the last century naturally led to the

destruction of private property adjacent to federal

lands, that the Cedar Fire was not a question of if,

but when.

REASONS FOR GRANTING THE PETITION

This Court has never addressed the issue of a

taking by wildfire. The only two known reported

opinions on the subject determined after trial that

both asserted takings were actually claims of

negligent firefighting. Thune v. United States, 41

Fed. Cl. 49 (1998); Teegarden v. United States, 42

Fed. Cl. 252 (1998). Given that the federal

government lists 60 pages of communities across the

country in similar danger of catastrophic wildfire as

of 2001, the question of a taking by wildfire is of

national, and impending, importance. Urban

Wildland Interface Communities Within the Vicinity

of Federal Lands That Are at High Risk From

Wildfire, 66 Fed. Reg. 43,384, 43,385-435 (August

17, 2001). This important point of federal law —

under what circumstances can a citizen state a

cognizable claim for a taking by wildfire — has not

been, but should be, decided by this Court.

Clarity is also required because the appellate

decision in this case renders meaningless the

requirement that an unintended taking be the

“direct, natural, or probable result” of government

action. Moden v. United States, 404 F.3d 1335, 1356

(Fed. Cir. 2005); see, Cotton Land Co. v. United

States, 75 F. Supp. 232, 233 (Ct. Cl. 1948).

Responding to the Property Owners’ claim that

government actions, particularly its continuous

suppression of wildfires in the CNF, resulted in the

taking of private property, the Federal Circuit held,

“had the government action been to accumulate fuel

loads in the CNF...then any ignition, even one

negligently started by unauthorized human hands,

would be adequate for that government act to satisfy

the causation prong.” Cary, 522 F. 3d at 1379.

However, it has been established, and

pleaded, that the Forest Service halted the natural

process that would otherwise have continually

reduced the fuel load in the CNF. For purposes of

pleading a cognizable takings claim, the Property

Owners can discern no distinction between fire

Suppression actions that directly, naturally, and

actually resulted in the accumulation of fuel loads in

the CNF (notwithstanding the characterizations

given those acts) and_ actions _ specifically

accumulating fuel loads in the CNF.

The Property Owners also assert that the

findings of intervening acts in this dispute are in

conflict with relevant decisions of this Court and

those of other Circuits. Specifically, because the

Property Owners have shown that human ignition of

a fire in the CNF was foreseeable and in fact a near

certainty, finding such to be an intervening cause is

in conflict with settled law and this Court’s holding

on causation. Exxon Company, U.S.A. v. Sofec, Inc.,

517 U.S. 831, 837 (1996).

10

The finding that purported risk-decreasing

actions taken by the Forest Service were intervening

acts is also without factual support and in conflict

with this Court’s definition of intervening cause in

Exxon and the U.S. Court of Appeals for the Seventh

Circuit’s prohibition on dismissing a complaint for

failure to plead around potential defenses. Exxon,

517 U.S. at 837; United States v. Northern Trust

Company, 372 F.3d 866, 888 (7th Cir. 2004).

Finally, the holding that a wildfire must be

inevitably recurring in order to state a claim for

inverse condemnation is in conflict with the Fifth

Amendment to the United States Constitution and

settled takings law, including that of this Court.

The exercise of this Court’s jurisdiction is necessary

in order to correct this point of law, as well.

I. REQUIRING THAT THE PROPERTY

OWNERS PLEAD A GOVERNMENT ACT

AUTHORIZING THE ACCUMULATION

OF FUEL IN THE CNF IS CONTRARY TO

ESTABLISHED PRINCIPLES OF

CAUSATION IN UNINTENTIONAL

TAKINGS CASES.

An inverse condemnation claim is required to

meet a two-part analysis, commonly referred to as

the Ridge Line test. Moden, 404 F.3d at 1342 (citing

Ridge Line, 346 F.3d at 1355). The first prong

requires a plaintiff to show that the “the government

intended to invade a protected property interest or

that the asserted invasion is the direct, natural, or

probable result of an authorized activity and not the

11

incidental or consequential injury inflicted by the

activity.” Jd.

As the Property Owners have never alleged an

intentional taking, the Federal Circuit held that the

claim at issue failed this first prong, because “there

are no direct, natural, and probable paths between

the actual authorized acts of suppressing fires and

the Cedar Fire conflagration.” App. 13a. The

Property Owners, however, assert that this is an

unjust characterization of the complaint and is an

arbitrary conclusion in disregard of the “direct,

natural, or probable” standard and the evidence

presented.

As stated above, there are no _ reported

opinions outlining the contours of a cognizable

“takings by wildfire” claim, so the Property Owners

reasoned by analogy to the “takings by flood” cases.

Cotton Land, oft-cited regarding takings causation,

involved the taking of flooded land situated on the

Colorado River between the Hoover Dam and the

Parker Dam. 75 F. Supp. at 232. The Parker Dam

began impounding water in 1938 for the purpose of

creating a reservoir (known as Lake Havasu) and

producing needed hydroelectric power for the public.

Id. at 232-33. After the impounding was compl]: te,

the river began depositing sand at the point where it

collided with the still waters of the lake. Jd. at 233.

This sand “placed another obstacle to the full and

rapid flow of the river,” which resulted in the deposit

of sand upriver in the river bed until the river

overflowed its banks. Id.

12

The Cotton Land court was not receptive to

government arguments that the injury was remote

or consequential, holding that a taking had occurred

because “a succession of events was initiated which,

when the events had all occurred in their natural

order, deprived the [plaintiff] of the beneficial use of

its land.” Jd. at 233. The court added that “filf

engineers had studied the question in advance they

would, we suppose, have predicted what occurred.”

Id. at 233-34.

The Property Owners similarly allege that the

Forest Service’s acts in suppressing the natural fire

ecology of the CNF initiated a chain of events that,

in their natural order, led to the destruction of

private property. Specifically, continuous fire

suppression directly resulted in increasingly heavy

fuel loads in the CNF, which then naturally resulted

in the creation of uncontrollable mega-fires, rather

than more frequent, low-intensity fires. These

allegations are supported by the Property Owners’

complaint as well as the United States’ own

documents, which show that it did consider this

question in advance and did predict what happened.

The Property Owners assert that by requiring them

to plead a government act explicitly “authorizing”

the accumulation of fuel in the CNF, the Federal

Circuit has essentially held that characterization of

the government action at issue 1s more important

than the direct, natural, or probable results of those

actions.

13

The Property Owners Pleaded and

Showed through the United States’

Own Documents _ that Their

Damages Were the Direct, Natural,

or Probable Result of Government

Actions.

The Federal Circuit noted, “Moden clarified

the meaning of ‘direct, natural, or probable result’ to

mean that the injury must be the likely result of the

act, not that the act was the likely cause of the

injury, the latter allowing for incidental injuries

resulting from a true cause-in-fact to be considered a

taking.” App. 9a. The court concluded that “[t}]he

only relevant direct, natural, or probable result of

the Forest Service policies pleaded by the [Property

Owners] was a heightened risk, not a wildfire that

would spread to neighboring properties,” and that

this “does not equate to making the detrimental

result direct, natural, or probable.” App. 10a.

The Property Owners’ claim is the epitome of

a “natural” result: the effect of forces of nature.

Essentially, the complaint paints a picture of the

Forest Service suppressing fires over the course of

the last century, acting for the public’s benefit, but

ultimately changing the ecology of the CNF from one

of low intensity, seasonal wildfires to lands awaiting

the spark to ignite a mega-fire. For example, the

complaint alleges that the Forest Service’s fire

suppression activities “resulted in the development

of unnaturally dense stands of trees and other highly

flammable fuel loads in the CNF,” that accordingly,

a “fire caused by a hunter or other public user in the

CNF would likely lead to a wildfire spreading to

14

neighboring privately owned properties,” and that

“the signal fire started in the CNF spread to

neighboring privately owned lands, directly resulting

in the ‘taking’ of [the Property Owners’] property,

without just compensation.” App. 39a, 40a, and 41a.

These are sufficient to state a claim for inverse

condemnation notwithstanding the use of phrases

such as “significant risk” instead of “direct, natural

and probable result.”

Although the complaint does refer to, e.g., the

“significant risk” that a wildfire fueled by highly

flammable vegetation would escape the CNF (App.

40a), the Property Owners also pleaded, “The risks

attendant to [the Forest Service’s] land management

policies for the CNF materialized on or about

October 25, 2003....directly resulting in the ‘taking’

of [the Property Owners’] property, without just

compensation.” App. D, 449 (emphasis added).

Stating risk is merely a way of expressing

probability, and “significant” and “heightened” risks

as used in the complaint should reasonably be

interpreted as “probable” for purposes of stating a

takings claim at the pleading level. See, Gould Inc.

v. United States, 935 F.2d 1271, 1274 (Fed. Cir.

1991) (“in reviewing a dismissal for failure to state a

claim, we must assume all well-pled factual

allegations are true and indulge in all reasonable

inferences in favor of the nonmovant’). This

heightened risk or heightened potential of

conflagration, when applied to the altered ecology of

the CNF, makes an event like the Cedar Fire not

just a question of if, but rather one of when.

15

Because the jurisdiction of the Court of

Federal Claims requires examination of the merits of

a takings claim, the Property Owners showed

through the United States’ own documents that the

damage to their property was the direct, natural,

probable, and actually foreseen result of the Forest

Service’s duly authorized management of the CNF.

This evidence confirms that what happened was no

surprise, and that the question, again, was not if,

but when. For example, well in advance of the

Cedar Fire, the government admitted,

Past management practices, especially

the Forest Service’s decades-old policy

of suppressing fire in the national

forests, disrupted the historical

occurrence of frequent low-intensity

fires. As a result, vegetation

accumulated, creating high levels of

fuels for catastrophic wildfires and

turning much of the region into a

tinderbox

Western National Forests: Catastrophic Wildfires

Threaten Resources and Communities, supra, pp. 1-

2. The CNF was one of these tinderboxes, the fire in

which directly resulted in the Property Owners’

injuries, See, Urban Wildland Interface

Communities Within the Vicinity of Federal Lands

That Are at High Risk From Wildfire, 66 Fed. Reg. at

43,384 and 43,390.

The complaint mirrors this foreseen causal

chain, asserting that the Forest Service's

management of the lands of the CNF resulted in

16

excessive fuel loads, that as a result of the extreme

fire hazard in the CNF, a fire, and in particular a

lost hunter’s signal fire, would spread to neighboring

privately owned properties, like those of the

Property Owners. App. 34a, 36a, 39a, 40a, and 4la.

Because the Property Owners have pleaded and

shown the required causal connection, the Federal

Circuit’s opinion should be overruled.

B. Requiring a Claim to Allege an

“Authorized Act” at Any or All

Intermediate Steps in the Causal

Chain Is an Arbitrary Standard,

Given the Undisputed Evidence in

the United States’ Own Documents

And the Deference Due Allegations

at the Pleading Stage.

The Federal Circuit opined, “had _ the

government action been to accumulate fuel loads in

the CNF, even without knowledge that such fuel

loads would become a large conflagration upon any

ignition, then any ignition, even one negligently

started by unauthorized human hands, would be

adequate for that government act to satisfy the

causation prong.” App. 12a-13a. In support of this

holding, the court stated, “This is because an

ignition is the direct, natural and probable result of

the government intenticnally allowing fuel loads to

accumulate in a fire zone, and a conflagration is the

direct, natural, and probable result of this ignition in

a forest with high fuel loads.” App. 13a. For lack of

an “authorized act of allowing the growth of the fuel

loads,” the Federal Circuit concluded, “there are no

17

direct, natural, and probable? paths between the

actual authorized acts of suppressing fires and the

Cedar Fire conflagration.” Id.

The question here is what affirmative steps

did the government take in the CNF that naturally

resulted in the destruction of private property? The

authorized act by the government is the suppression

of wildfire in the CNF. This is not a case of an

alleged failure or omission on the part of the

government, but rather one of commission: the

Forest Service actually suppressed wildfires, a part

of the ecosystem as natural as sun and rain. Fire

serves many uses in the CNF, including, but

certainly not limited to, clearing out vegetative fuel

buildup, germinating the seeds of certain plants, and

managing insect infestation. The direct and natural

result of fire suppression was the buildup of fuels,

and in this respect the Forest Service’s actions are

no different in effect than if it had actually started

stacking fuels in the forest.

Moreover, the characterization of the actions

is not determinative, rather, the natural

consequences of the acts control whether the

Property Owners have pleaded a cognizable takings

claim. See, Pashley v. United States, 140 Ct. Cl. 535,

156 F. Supp. 737, 738 (1957). As discussed, supra,

the crux of the Property Owners’ claim is that the

direct, natural, and probable result of suppressing

fires in the CNF was the accumulation of

unnaturally high fuel levels. To paraphrase the

Federal Circuit's opinion, the direct, natural, and

2 The proper test is disjunctive, 1.e., “direct, natural, or

probable.” Moden, 404 F.3d at 1342

18

probable result of continuously suppressing fires in a

fire zone is that a fuel load accumulates; the direct,

natural, and probable result of fuel loads

accumulating in a fire zone is ignition; and the

direct, natural, and probable result of ignition in a

fire zone with high fuel loads ts a conflagration lIrke

the Cedar Fire. See, App. 13a. This is a clear,

discrete path between authorized acts and the

resulting conflagration, notwithstanding that the

United States did not itself actually stockpile fuels in

the CNF or explicitly “authorize[] supplying of fuel.”

Id.

The decision of the Federal Circuit renders

meaningless the standard by which unintentional

takings may be shown. Under Moden and Cotton

Land, a claim is proper if it, inter alia, alleges that

the taking is the direct, natural, or probable result of

government activity. If there are multiple steps in

the causal chain, it must accordingly be a natural

progression from one step to the next. There is no

requirement that there be an authorized act at any

intermediate point. In fact, under the Federal

Circuit’s analysis in the instant case, Cotton Land

was wrongly decided because the plaintiff did not

show that there was an authorized act allowing the

deposit of sand in the river.

Current and future litigants will lose that

standard without review by this Court. If a

claimant’s theory of causation can fail for lack of an

authorized act at any intermediate point in an

asserted natural sequence of events, there is simply

no way to determine whether an individual is able to

state a cognizable takings claim without either a

19

court judgment or allegations that each step in the

causal chain is accompanied by an authorizing

government act. For this reason and because the

Property Owners have more than met the proper

standard for causation when pleading a takings

claim, this Court should grant certiorari.

II. HOLDING THAT THE IGNITION OF THE

CEDAR FIRE BY A LOST HUNTER IS AN

INTERVENING CAUSE IS CONTRARY

TO SETTLED LAW AND THE OPINIONS

OF THIS COURT.

Without explanation, the Federal Circuit (and,

for that matter, the Court of Federal Claims) held

that “the hunter lighting the signal fire was a clear

intervening cause that broke the chain of causation

between the authorized act and the injury.” App.

15a; see also, App. 25a. There is simply no basis for

such a holding under traditional tort principles of

causation.

This Court addressed the criteria for an

intervening cause, stating, “The doctrine of

superseding+ cause is... applied where the

defendant's negligence in _ fact substantially

3 Tort law on causation is appropriately applied to takings

cases. See, e.g., Moden, 404 F.3d\ at 1343-44 (citing the

apphication of “the law of torts” toa takings claim to determine

if an “intervening cause [broke] the chain of causation).

j

4 Whether a particular jurisdiction refers to this defense as a

superceding cause, an intervening |cause, or remoteness of

cause, the analysis is the same. (See, e.g., 57A Am. Jur.

Negligence §§ 578 and 583 (2008): and see, Moden, 404 F.3d at

1343-44.

20

contributed to the plaintiff's injury, but the injury

was actually brought about by a later cause of

independent origin that was not foreseeable.”

Exxon, 517 U.S. at 837; see also, Warner v. Santa

Catalina Island Co., 282 P.2d 12 (Cal. 1955); and,

57A Am. Jur. Negligence §§ 578 and 583 (2008). A

reasonably foreseeable cause of independent origin is

therefore not an intervening cause as a matter of

law.

The government has not provided an ita of

evidence in support of the proposition that the

ignition of the Cedar Fire was not foreseeable and

therefore an intervening cause. The Property

Owners, on the other hand, have shown through tne

Forest Service’s own documents that the ignition of

the fire by a hunter was not only eminently

foreseeable but also a practical certainty.

The Forest Service itself admits that “human-

caused fires...account for most of the damaging

wildfires.” USDA Forest Service, Draft

Environmental Impact Statement for Revised Land

Management Plans, Pacific Southwest Region (May

2004), p. 3-303. Most importantly, the Forest

Service’s own statistics for the CNF show that in the

1990s, 921 out of a total of 996 fires (93%) were

human-caused. Id. at Tables-5. That figure

averages to one human-caused fire in the CNF

every four days. In this respect, it was a near

certainty that one or two recreational visitors would

start an illegal fire in the CNF the week of the Cedar

Fire. Because the ignition itself was reasonably

foreseeable, it cannot serve to cut off the United

States’ liability.

21

In light of the Property Owners’ showing of

foreseeability at this pleading stage, and the

complete lack of evidence or factual findings by the

lower courts indicating that ignition of a fire by a

park visitor was unforeseeable, review by this Court

is needed to correct this obvious and exceptional

error.

Il. HOLDING THAT RISK-DECREASING

ACTIONS PURPORTEDLY

UNDERTAKEN BY THE FOREST

SERVICE ARE INTERVENING CAUSES

IS CONTRARY TO SETTLED LAW AND

THE OPINIONS OF THIS COURT.

Although the question of whether Forest

Service activity amounted to an intervening cause

was neither briefed nor addressed at oral argument,

the Federal Circuit’s opinion states, “No individual

[Forest Service] decision can be a beginning because

each risk-decreasing action in the Forest Service's

policies is an intervening act breaking whatever

causal chain would lead from an accused risk-

increasing action to the conflagration which

destroyed the [Property Owners’ property.” App.

14a. Notwiths‘anding the complete lack of evidence

that any Forest Service act decreased the risk of

damage to the Property Owners by catastrophic

wildfire, this holding is untenable as a matter of law

and in conflict with this Court’s holding on

intervening cause and the U.S. Court of Appeals for

the Seventh Circuit’s prohibition on dismissing a

complaint on the grounds that a plaintiff has not

pleaded around potential defenses.

22

First, the Federal Circuit did not identify

what risk-decreasing action might exist that would

serve to intervene in the causal chain from the

Forest Service’s actions in the CNF to the damage

suffered by the Property Owners. Without facts to

support the proposition that any Forest Service act

remediated a century of fuel accumulation in the

CNF, there can be no intervening act. The Federal

Circuit seems to be suggesting that there are

defenses that could potentially be raised in this

action, but it is improper to dismiss a complaint on

the grounds that the Property Owners have not

pleaded around potential defenses. See, e.g.,

Northern Trust, 372 F.3d at 888. If anything, the

purported risk-decreasing actions might speak to the

Forest Service’s degree of care, were this a tort case,

but considerations of reasonability simply do not

apply to a takings claim. Pashley, 156 F. Supp. at

738 (“Defendant's liability depends not on its want of

care, but on the fact of taking as the natural

consequence of defendant’s acts.”>.

Second, the Federal Circuit’s opinion also

failed to address under what circumstances actions

by the Forest Service could act as an intervening act

ia its own taking, and in this respect the opinion

misapprehends the applicability of the doctrine of

intervening cause. Again, this Court summarized

the doctrine of superseding/intervening cause,

stating, “The doctrine of superseding cause

is...applied where the defendant’s negligence in fact

substantially contributed to the plaintiff's injury, but

the injury was actually brought about by a later

cause of independent origin that was not

foreseeable.” Exxon, 517 U.S. at 837 (emphasis

23

added). Even assuming that the Forest Service took

a risk-decreasing action in the CNF prior to the

Cedar Fire that affected the fire’s spread, because

such an action is not of independent origin, it cannot

by definition be an intervening cause. Essentially,

the Forest Service cannot legally “intervene” in the

causal chain of its own creation.

The Property Owners assume that the court's

reference to “risk-decreasing actions” includes

activities such as the Forest Service’s fuel

modification efforts undertaken in certain areas, as

alluded to in a footnote of the Federal Circuit's

opinion:

The [Property Owners] cherry-pick

parts of the Forest Service policy which

they argue have increased the risk of

wildfire since 1911 without

acknowledging that much of the Forest

Service policy over the last century has

been devoted to reducing the risk of

wildfire by controlling the same fuel

loads the [Property Owners] allege have

been allowed to accumulate.

App. 10a.

For purposes of pleading a cause of action for

inverse condemnation, the facts as alleged in the

Complaint must be assumed truc. Gould, 935 F.2d

at 1271. The Property Owners pleaded that “the

‘and management policies impiemented by [the

United States} over the greater portion of the 20th

Century, and continuing to the present day, resulted

24

in the development of unnaturally dense stands of

trees and other highly flammable fuel loads in the

CNF.” App. 39a. The Federal Circuit is not at

liberty to assume, without corroborating evidence,

that any action by the Forest Service decreased the

risk of catastrophic wildfire to the Property Owners.

Also, it is not proper to draw inferences against the

Property Owners for the purpose of dismissing their

Complaint. Gould, 935 F.2d at 1274.

In fact, the only evidence in these proceedings

on the subject of fuel load remediation was presented

by the Property Owners. For example, Barry T. Hill

testified before the House Subcommittee on Forests

and Forest Health regarding the Forest Service’s

plan to reduce accumulated fuels in the national

forests. Western National Forests: Catastrophic

Wildfires Threaten Resources and Communities,

supra, pp. 1-12. Mr. Hill noted that the Forest

Service “sas highly effective in suppressing fires in

the national forests for about 75 years after 1910....

However, more recently, the agency has been less

effective because excessive accumulated fuels have

made fires larger and more intense.” Jd. at p. 4. In

fact, in 1995, the Forest Service “estimated that 39

million acres, or about one third of all lands it

manages in the interior West — more than ever

known before and more than in all other regicns of

the country combined — are now at high risk of large,

uncontrollable, catastrophic wildfires.” Jd.

Mr. Hill also testified to the Forest Service’s

intention, announced in 1995, “to refocus its fire

s

5 Associate Director, Energy, Resources, and Science Issues,

Resources, Community, and Economic Development Division.

25

management program on reducing accumulated

fuels” with the goal of resolving “the problem of

national forest lands being at high risk of

uncontrollable, highly destructive wildfires” by 2015.

Id. at pp. 5-6. However, he concluded that such a

herculean project would not be completed by 2015,

due to factors such as_ funding issues,

underestimation of the number of acres needing fuel

reduction annually, maintenance of clean water and

air, and endangered species protection. Jd. at pp. 7-

12.

The Property Owners do not dispute that due

in large part to Forest Service efforts, the problem of

the national forests’ excessive fuel load is currently

being addressed. However, even at present, millions

of acres in the west alone are still at high risk of

catastrophic wildfires due to the presence of

excessive fuels. Mitigation efforts in 2003 were just

underway and, even if the Forest Service’s own

actions could be intervening causes, no _ fuel

remediation in any way interrupted the causal chain

between the Forest Service’s actions and the

Property Owners’ injuries. On the basis of these

undisputed facts and misapprehended law, review by

this Court is necessary to correct the holding of the

Federal Circuit.

26

HOLDING THAT A WILDFIRE MUST BE

INEVITABLY RECURRING IN ORDER

TO TAKE PROPERTY BY FIRE IS IN

CONFLICT WITH THE FIFTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION AND EVERY TAKINGS

CASE FINDING THAT DESTROYED

PROPERTY HAS BEEN TAKEN.

The Property Owners also assert that the

Federal Circuit has misapprehended the holdings of

the flood cases that require a repeated and

inevitably recurring flood in order to affect a taking.

App, 15a-18a. The second prong of the Ridge Line

test requires a claimant to show “that the invasion

appropriated a benefit to the government at the

expense of the property owner, at least by

preempting the property owner’s right to enjoy its

property for an extended period of time, rather than

merely by inflicting an injury that reduces the

property's value.” Ridge Line, 346 F.3d at 1355. The

Federal Circuit held that, as a matter of law, the

Property Owners’ complaint fails this test because

wildfires in the area are not inevitably recurring.

App. 15a-18a.

Because the Property Owners do not assert a

taking of their land, but rather that the personal

property and real property appurtenant to their

lands were taken by fire, there need be no showing

that wildfire is inevitably recurring. The Cedar Fire,

by destroying the property claimed taken, has

preempted the right of the Property Owners to use

their property forever. In this respect, the Federal

Circuit has taken the Property Owners’ analogy to

27

the legal reasoning of the flood cases to a mistaken

conclusion. This Court should grant this Petition in

order to correct this erroneous point of law, and to

bring the Federal Circuit’s opinion in line with

settled case law and the Fifth Amendment itself.

The flood cases cited by the Federal Circuit

refer to claims of the taking of the land itself, not the

taking of the real and personal property on the land.

App. 17a-18a (and the cases cited therein); see, e.g.,

United States v. Lynah, 188 U.S. 445, 470 (1903)

(adjudicating the flooding of “lands belonging to an

individual as to substantially destroy their value”).

In essence, there is no taking for one or two floods

because the owner of the property can repossess and

use that land afterwards. The property claimed

taken by the Property Owners does not consist of

land that can (or cannot) be reoccupied, it consists of

structures and personal belongings that are gone,

burned to ashes. This property cannot be used in the

future because it is no longer in existence. In this

respect the Federal Circuit has _ seriously

misapprehended the law of takings.

Under no circumstances can the Property

Owners “repossess” the destroyed structures and

personal property lost to the fire, as asserted by the

Federal Circuit. App. 18a. The particular logic in

defining a substantial interference with property

rights in the land itself when it is temporarily

submersed simply does not lend itself to other forms

of taking, particularly with respect to property that

has literally been destroyed.

28

Although the Property Owners did refer at

oral argument to the fact that some “still cannot

rebuild upon or in some cases cannot even access the

sites of their former homes due to the destruction of

infrastructure by fire,” this was merely intended to

highlight the extent of the destruction caused by the

Cedar Fire, not for the inference “that because the

fire destroyed the infrastructure, their right to enjoy

their property has been preempted for an extended

period of time because they cannot rebuild upon, or

in some cases even access their land, five years after

the fire.” See, App. 16a. It is well established that

the Property Owners are entitled to just

compensation for personal property destroyed as

well as real property. E.g., Daily v. United States,

116 Ct. Cl. 723, 90 F. Supp. 699, 702 (1950).

The Federal Circuit’s holding is inconsistent

with takings jurisprudence and creates an illogical

standard by which if a person could pay to rebuild

their home or repurchase their destroyed personal

property, then no taking has occurred. The takings

clause simply has no exception limiting the

government’s liability when replacement property

may be available for purchase by a claimant. Lest

any doubt remain, the Property Owners are

absolutely entitled to just compensation for their

personal property and their real property that was

destroyed in the Cedar Fire, and in this respect the

Federal Circuit has misapprehended the standard

for pleading a taking.

Because the allegations of property damage in

the Property Owners’ complaint must be treated as

true at the pleading stage (see, App. 30a-33a for

29

allegations of property damage), the Federal

Circuit's decision is in clear violation of the pertinent

standard requiring a significant interference with

property rights, and this Court should take

jurisdiction over this dispute in order to correct this

deviation from settled law.

CONCLUSION

For all the foregoing reasons, the instant

Petition for Writ of Certiorari should be granted.

Respectfully submitted,

/s/

Mark S. Grotefeld

Counsel of Record

GROTEFELD & HOFFMANN, LLP

180 North LaSalle Street, Suite 1810

Chicago, Illinois 60601

Telephone: (312) 551-0200

Maura Walsh Ochoa

Todd C. Harshman

Waylon J. Pickett

GROTEFELD & HOFFMANN, LLP

505 Sansome, Suite 1950

San Francisco, California 94111

Telephone: (415) 344-9670

Counsel for Petitioners

APPENDIX

la

[ENTERED: JANUARY 16, 2009]

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

2008-5022

RICHARD CARY, SUSAN CARY, PATRICIA

GEERTS, SHARON HENRY, JAMES HERZOG,

DIANE KNUEFFER, PATRICIA MARTIN,

ROBERT S. MARTIN, JANET MARIE PRIATT,

DONA SCHNEIDER, DOUGLAS SCHWAEBE,

CARL SCHWEIKERT, KATHERINE

SCHWEIKERT, DAVID SOUTHCOTT, and MARY

CAROL WILDER, on behalf of themselves and all

others similarly situated,

Plaintiffs-Appellants,

Vv.

UNITED STATES,

Defendart-Appellee.

Mark S. Grotefeld, Grotefeld & Hoffmann,

LLP, of Chicago, Illinois, argued for plaintiffs-

appellants. With him on the brief were Todd C.

Harshman and Waylon J. Pickett, of San Francisco,

California.

Katherine W. Hazard, Attorney, Environment

and Natural Resources Division, United States

Department of Justice, of Washington, DC, argued

for defendant-appellee. With her on the brief were

2a

Ronald J. Tenpas, Assistant Attorney General, and

Katherine J. Barton and Marc A. Smith, Attorneys.

Appealed from: United States Court of Federal

Claims

Senior Judge John P. Wiese

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

2008-5022

RICHARD CARY, SUSAN CARY, PATRICIA

GEERTS, SHARON HENRY, JAMES HERZOG,

DIANE KNUEFFER, PATRICIA MARTIN,

ROBERT S. MARTIN, JANET MARIE PRIATT,

DONA SCHNEIDER, DOUGLAS SCHWAEBE,

CARL SCHWE!KERT, KATHERINE

SCHWEIKERT, DAVID SOUTHCOTT, and MARY

CAROL WILDER, on behalf of themselves and all

others similarly situated,

Plaintiffs-Appellants,

Vv.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal

Claims in 06-CV-707, Senior Judge John P. Wiese.

DECIDED: January 16, 2009

Before MAYER, LINN, and MOORE, Circuit Judges.

MAYER, Circuit Judge.

Richard Cary, et al., (“landowners”) appeal the

judgment of the United States Court of Federal

Claims denying their claims against the United

States for the taking of their property without just

»0mpensation by inverse condemnation in the 2003

California “Cedar Fire.” Cary v. United States, 79

Fed. Cl. 145 (2007). Because the landowners have

not stated a claim for which relief may be granted,

we affirm.

BACKGROUND

The landowners are aggrieved owners of

properties neighboring the Cleveland National

Forest (“CNF”), near San Diego, California. On

October 25, 2003, a deer hunter lost in the forest lit a

signal fire to aid his rescue. Named the Cedar Fire,

the fire spread and became one of the largest

conflagrations in California history. The fire claimed

the lives of fifteen people, and consumed more than

273,000 acres of land, 2,232 residences, twenty-two

commercial structures, and 566 outbuildings. The

landowners’ properties were in the burned area.

Fires are am unavoidable fact of life in

Southern California, where they frequently and

4a

predictably occur during a “fire season.” The area

including the CNF is so prone to fire that its fire

season is year-round, with Santa Ana _ winds

exacerbating the likelihood and intensity of fires

between September and December. It is believed

that fires have occurred seasonally in the CNF since

before humans lived in North America. According to

the landowners, early fires were frequent, but of low-

intensity, burning out without intervention.

Beginning in 1911, the United States Forest Service

implemented a policy to suppress all fires in the

CNF, originally to protect timber and water

reserves. Today such reasons include protecting

natural resources, air quality, and endangered

species, and for public recreation.

In 1968, the Forest Service ended its policy of

mandatory suppression of fires, and replaced it with

a policy of selective suppression, allowing fires to run

their natural course under prescribed conditions,

such as occurring late in the fire season. Within a

few years, the Forest Service recognized that some

places in the Southern California fire zone, including

the CNF, were sustaining particularly high fuel

loads which posed a greater risk for conflagration,

and implemented policies called “fuel modification”

which were designed to clear and thin flammable

vegetation and lower the risk of conflagration. The

Forest Service conducted prescribed burns in the

CNF to lower the risk of fire, although they were

prevented from using prescribed burns in some areas

because of such obstacles as riparian area or

endangered species protection.

da

In 2003, the year of the Cedar Fire, 97% of

fires were extinguished within twenty-four hours of

their discovery. This near total suppression of fires,

the landowners allege, altered the “fire ecology” of

the CNF by disrupting the natural, frequent, low-

intensity fires. They argue that low-intensity fires

consumed the underbrush and other flammable

vegetation in the forest, and so the suppression of

fires allowed the vegetation to accumulate into

unnaturally thick stands of trees and underbrush.

Any fire in the CNF, if not immediately controlled,

would become a devastating firestorm, and on

October 25, 2003, the lost hunter illegally set such a

fire. Because it occurred late in the dav, fire crews

were prevented from reaching it immediately in light

of Forest Service policy which prohibited firefighting

after sunset. By the next day, it had become a major

conflagration and _ eventually consumed _ the

landowners’ properties.

The landowners filed suit in the United States

Court of Federal Claims on behalf of themselves and

all others similarly situated who sustained damage

to a property interest as a result of the fire. They

accused the Forest Service of taking the known

calculated risk that its land management policies in

the CNF would result in a taking of adjacent

landowners’ property in the event of a fire

originating in the CNF that spread outside its

boundaries. Thus, they alleged that the United

States took their property by inverse condemnation

without just compensation.

The government moved for judgment on the

pleadings because the landowners failed to allege

6a

facts showing that the Forest Service management

policies in the CNF effected a compensable taking of

their property for public use under the Fifth

Amendment. It argued that the fire was caused by a

lost hunter illegally setting a fire, not government

policy. The court entered judgment for the

government: “Our difficulty is not with the

foreseeability of the harm plaintiffs suffered, but

with the cause of the harm.” Cary, 79 Fed. Cl. at 148.

The court further stated that unless the hunter was

acting as its agent, causation could not be attributed

to the government. Id. The landowners appealed.

DISCUSSION

When reviewing appeals in which the Court of

Federal Claims entered judgment on the pleadings

pursuant to its Rule 12(c), we apply the same

standard of review as a case dismissed pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure,

and review the judgment de novo. See Chang v.

United States, 859 F.2d 893, 894 (Fed. Cir. 1988).

We must presume that the facts are as alleged in the

complaint, and make all reasonable inferences in

favor of the plaintiff. Gould Inc. v. United States,

935 F.2d 1271, 1274 (Fed. Cir. 1991). To state a

claim, the complaint must allege facts “plausibly

suggesting (not merely consistent with)” a showing

of entitlement to relief. See Bell Atlantic Corp. v.

Twombley, 550 U.S. 544, __—, 127 S. Ct. 1955, 1966

(2007). The factual allegations must be enough to

raise a right to relief above the speculative level. Id.

at 1965. This does not require the plaintiff to set out

in detail the facts upon which the claim is based, but

enough facts to state a claim to relief that is

7a

plausible on its face. Id. at 1974. The landowners

also must prove subject matter jurisdiction. Mars

Inc. v. Kabushiki-Kaisha Nippon Conlux, 24 F.3d

1368, 1872 (Fed. Cir. 1994).

Whether a taking under the Fifth Amendment

has occurred is a question of law with factual

underpinnings. Alves v. United States, 133 F.3d

1454, 1456 (Fed. Cir. 1998). Therefore, we review the

determination of law de novo, while in this case the

facts must be accepted as alleged.

The landowners placed the liability of the

United States under the Tucker Act, which grants

the Court of Federal Claims jurisdiction over claims

for money damages “against the United States

founded either upon the Constitution, or any Act of

Congress or any regulation of an _ executive

department, or upon any express or implied contract

with the United States, or for liquidated or

unliquidated damages in cases not sounding in tort.”

28 U.S.C. § 1491(a)(1) (2000); United States v.

Mitchell, 463 U.S. 206, 216 (1983). We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

The Fifth Amendment to the United States

Constitution provides in part that “private property

[shall not] be taken for public use, without just

compensation.” Because the government conducted

no formal exercise of eminent domain, this case is for

alleged “inverse condemnation.” See Moden_v.

United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005).

Inverse condemnation is “a shorthand description of

the manner in which a landowner recovers just

compensation for a taking of his property when

8a

condemnation proceedings have not been instituted.”

Id. (quoting United States v. Clarke, 445 U.S 253,

257 (1980)) (quotation marks omitted).

The landowners rely on an analogy between

the fires here and flooding in cases typified by Ridge

Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir.

2003), which set out a two part test that can be

characterized as causation and appropriation. In the

causation prong, it must be shown that “the

government intend(ed| to invade a_ protected

property interest or [that] the asserted invasion

[was] the direct, natural, or probable result of an

authorized activity and not the incidental or

consequential injury inflicted by the action.” 346

F.3d at 1355 (citation removed). The landowners

allege that two Forest Service policies constituted

the authorized activities that caused the Cedar Fire.

First, they cite the circa 1911 policy of suppressing

all forest fires in the CNF and the nearly century

long suppression of all or nearly all fires, instead of

allowing them to consume the accumulated fuel load

in the forest. Second, they cite the policy of allowing

human visitors to enter the forest for recreational

purposes. The fire, they say, was the direct, natural,

probable result of these policies.

To prevail the landowners must first show

that the government intended to invade a protected

property interest. Clearly, the government did not

intend to take the landowners’ land by use of an

uncontrolled wildfire, and they do not allege that it

did. Instead, they say that because they did “not

allege that the government intentionally

appropriated [their] property” the trial court can

9a

infer intent if the asserted injuries were “the direct,

natural, or probable result of the [authorized

government action], rather than merely an

incidental or consequential injury.” Ridge Line, 346

F.3d at 1356. They also point out that “an inverse

condemnation plaintiff must prove that the

government should have predicted or foreseen the

resulting injury.” Moden, 404 F.3d at 1343 (Fed. Cir.

2005). Moden clarified the meaning of “direct,

natural, or probable result” to mean that the injury

must be the likely result of the act, not that the act

was the likely cause of the injury, the latter allowing

for incidental injuries resulting from a true cause-in-

fact to be considered a taking. Id. (requiring

plaintiffs to present evidence that the contamination

of their ranch was the likely, foreseeable result of

the authorized use of a chemical on a nearby

military installation). Therefore, to survive judgment

on the pleadings, the landowners must plausibly

show that the consumption of their property by fire

was the likely, foreseeable result of Forest Service

action.

Their complaint alleges that the government

created a risk that wildfires would spread to

neighboring properties through its policies. The

government “was or should have been aware that its

land management policies as they related to fire

suppression and prevention for the CNF created a

significant risk that a wildfire originating in the

CNF and fueled by the buildup of highly flammable

vegetation in the CNF would spread to adjacent

landowners’ properties.” They similarly pleaded that

the government took the calculated risk that a

recreational user would start a fire, would do so

10a

during the extreme fire conditions of October 2003,

and that the fire would likely become a wildfire

resulting in the taking of property adjacent to the

forest. Accepting arguendo that a policy is an action,

in charging the government with increasing the risk

of a conflagration that would spread to neighboring

properties, the landowners appear to have reversed

the Moden rule, alleging that the policies were the

likely cause of the loss, of their property. At a

minimum, they have not pleaded that the loss of

property would be the likely, foreseeable result of a

policy of fire suppression and recreational use, but

merely that the government knew of or increased a

risk. Taking a calculated risk, or even increasing a

risk of a detrimental result, does not equate to

making the detrimental result direct, natural, or

probable. The only relevant direct, natural, or

probable result of the Forest Service policies pleaded

by the landowners was a heightened risk, not a

wildfire that would spread to neighboring properties.

The hole in the causal chain is the conversion of this

risk into a wildfire by the hunter who started it.

The landowners argue that too much

emphasis is placed on the ignition of the fire, and

that the government is not required to light the

match in order to effect a taking. Like the Moden

The “policy” is not one authorized action but a set of

intertwined, authorized actions. The landowners cherry-pick

parts of the Forest Service policy which they argue have

increased the risk of wildfire since 1911 without acknowledging

that much of the Forest Service policy over the last century has

been devoted to reducing the risk of wildfire by controlling the

same fuel loads the landowners allege have been allowed to

accumulate.

lla

plaintiffs, the landowners rely on the line of flood

cases in which the government was found liable for a

taking when water impounded for a dam flooded

areas beyond the planned impoundment. In Cotton

Land Co. v. United States, 75 F. Supp. 232 (Ct. Cl.

1948), a poorly constructed dam caused sediment to

deposit in the riverbed upstream of the dam. Over

time, the sediment raised the level of the river

bottom until the waters crested the banks, flooding

the plaintiffs land. The court found a taking even

though the injury occurred years after the act of

constructing the dam, because the flooding was the

“natural consequence[] of the collision of sediment-

bearing flowing water with still water, and the

progress upstream, of the deposit begun by that

collision.” Id. at 233. The court further noted that

had the engineers studied the question in advance,

they would have predicted the flood with specificity.

Id. at 233-34. In Avery v. United States, 330 F.2d

640 (Ct. Cl. 1964), the court further explained that

the permanent flooding of the landowners’ property

in Cotton Land was “originally set in motion by the

erection of the dam,” id. at 645, and that the flood

was the “actual and natural consequence of the

Government’s act” because it was the natural

progression of a chain of events occurring in a

natural order without an intervening activity to

break the chain of causation. Id.

The landowners argue that the Forest Service

policies are analogous to building a dam. Dams

disrupt the natural flow of water for the public good

in the same way that fire suppression disrupts the

natural consumption of fuel for the public good. Like

the Cedar Fire, the flooding in Cotton Land did not

12a

occur immediately after governmental action; the

flooding resulted from “a succession of events. .

initiated” by the erection of the dam, including the

filling of the riverbed with sediment which raised

the level of the water and eventually overtopped the

riverbanks flooding the private property. 75 F. Supp.

at 233.

The key difference between the flood cases

and the instant controversy is that the policy of

suppressing fires did not set the Cedar Fire in

motion as the dams did the floods. Cf. Avery, 330

F.2d at 645. As the court in Cotton Land noted,

further study would have predicted the flood, when

it would occur, and where it would occur. 75 F. Supp.

at 234. Here, as the landowners implied in their

pleadings, for an injury resulting from the policy of

suppressing fires in the CNF to occur, something

had to ignite the fire. While the landowners pleaded

that the government took the risk of a hunter or

other recreational user starting a fire in the forest

with its policy of welcoming such users, an actual

ignition, not a risk, is what set the wildfire in the

CNF. The hunter setting the fire was an intervening

cause which broke any perceived chain of causation

between the Forest Service’s policies and the Cedar

Fire.

This is not to say that the government may

escape liability per_se by finding an incidental

intervening or contributing cause between their

authorized action and the alleged injury. Wherever

there is an authorized action, the causation prong is

satisfied for any injury which is the direct, natural,

and probable result of that action. For instance, had

l3a

the government action been to accumulate fuel loads

in the CNF, even without knowledge that such fuel

loads would become a large conflagration upon any

ignition, then any ignition, even one negligently

started by unauthorized human hands, would be

adequate for that government act to satisfy the

causation prong. This is because an ignition is the

direct, natural and probable result of the

government intentionally allowing fuel loads to

accumulate in a fire zone, and a conflagration is the

direct, natural, and probable result of this ignition in

a forest with high fuel loads. However here, there is

no authorized act of allowing the growth of fuel

loads, and there are no direct, natural, and probable

paths between the actual authorized acts of

suppressing fires and the Cedar Fire conflagration.

Only by an intervening cause was the authorized

action converted into a damaging event. The

landowners would be correct that the government

did not need to light the match to be liable, but to be

a taking, it must have at least authorized supplying

the fuel.

As a result, the question may not be whether

the Forest Service’s polices, a lost hunter, or even a

bolt of lightning caused the Cedar Fire. Ignition

sources are ubiquitous in the CNF, but the

landowners must allege in their complaint that the

fire that destroyed their property was the direct,

natural, and probable result of the forest

management policies. They have not. The sequence

of events in Cotton Land operated like a Rube

Goldberg machine, with a concrete beginning (the

dam), an ending (the flood), and in the middle, a

series of steps each inevitably following from the one

l4a

before it. Here, there is no concrete beginning, but

merely a long sequence of decisions, some risk-

increasing but others risk-decreasing, spread out

over decades. No individual decision can be a

beginning because each risk-decreasing action in the

Forest Service’s policies is an intervening act

breaking whatever causal chain would lead from an

accused risk-increasing action to the conflagration

which destroyed the landowners’ property.

Therefore, we cannot infer from the complaint the

steps between fuel load accumulation and the

damage to the landowners’ property with the

specificity required by Cotton Land. Instead, the

landowners attempt to rely on the _ insufficient

general allegation that the risk of damage arose

from the buildup of flammable vegetation.

The landowners also respond that where the

injury is foreseeable, there can be no intervening

cause. See Moden, 404 F.3d at 1343-34 (reviewing

the rejection of the “remoteness of cause” defense in

Cotton Land, 75 F. Supp. 232). They argue that the

government actually foresaw the destruction of

property by fire escaping the CNF. However, they

misunderstand the precedent. Avery clarified that

we look to the law of torts when handling a remote

cause, and when no intervening cause breaks the

chain of causation, we have found a taking. 330 F.2d

at 644-45. “[I]n other words, injury may not be

foreseeable if an intervening cause breaks the chain

of causation.” Moden, 404 F.3d at 1344. This does

not mean that the reverse is true, that an injury

foreseeable necessarily is without a break in the

chain of causation. Foreseeability and causation are

separate elements that must both be shown (when

l5a

intent is not alleged). See Moden, 404 F.3d at 1343

(“In addition to causation, an inverse condemnation

plaintiff must prove that the government should

have predicted or foreseen the resulting injury.”

(emphasis added)). For an injury to be a

compensable taking, the court must determine that

no break in the chain of causation existed between

the suspected government authorized action and the

injury. The landowners have identified the fire

suppression and recreational use policies as the

government authorized actions which caused the

destruction of their property. However, even if the

destruction of the property was foreseeable, as we

must accept at the pleading stage, the hunter

lighting the signal fire was a clear intervening cause

that broke the chain of causation between the

authorized act and the injury.

The landowners also fail to satisfy the

appropriation prong of Ridge Line. “Even where the

effects of the government action are predictable, to

constitute a taking, an invasion must appropriate a

benefit to the government at the expense of the

property owner, or at least preempt the owners’ right

to enjoy his property for an extended period of time,

rather than merely inflict an injury that reduces its

value.” Ridge Line, 346 F.3d at 1356. The

landowners have not pleaded and we cannot discern

any reason to conclude that the invasion has

appropriated any benefit to the government.

The landowners pleaded that the government

was acting in the public interest when it performed

under its fire suppression and recreational use

policies. They said that the Forest Service continued

16a

its land management policies, including its public

access practices, in furtherance of the public’s

interest: the preservation of timber, watersheds and

wildlife, and public use and enjoyment. They argue

that they should not be required to shoulder the loss

for the public. However, these public interests are

not benefits resulting from the invasion that

destroyed the properties. To the contrary, the

wildfire that destroyed the properties also destroyed

the public interests the policies sought to protect.

This is in contrast to the flood cases. For

instance, in Ridge Line, when the landowners’

property was inundated, even though sporadically,

the government was found to have acquired a

flowage easement from the runoff created by its

alteration of the area’s storm drainage. 346 F.3d at

1352. Here, the government has acquired no

easement of any sort, or any other property through

the fire.

The landowners also argue that they meet the

second prong because their real and _ personal

property was destroyed. They argue that one can

plausibly infer from this allegation that because the

fire destroyed the infrastructure, their right to enjoy

their property has been preempted for an extended

period of time because they cannot rebuild upon, or

in some cases even access their land, five years after

the fire. But we cannot plausibly infer that the fire,

which was the invasion and is now extinguished,

still prevents the rebuilding of infrastructure that

would allow the landowners to reoccupy their

property.

17a

To meet this preemption formulation of the

appropriation prong, the complaint must allege that

“the government’s interference with any property

rights of [the landowners] was substantial and

frequent enough to rise to the level of a taking.”

Ridge Line, 346 F.3d at 1357. That language

developed from the long history of the Supreme

Court’s flooding cases. A flood that invades land

permanently may give rise to a takings claim.

United States v. Lynah, 188 U.S. 445, 470 (1903) (“It

is clear from these authorities that where the

government by the construction of a dam or other

public works so floods lands belonging to an

individual as to substantially destroy their value

there is a taking within the scope of the 5th

Amendment.”). Similarly, a flood gives rise to a

taking where it creates a “permanent liability”

because of “intermittent but inevitably recurring

overflow.” United States v. Cress, 243 U.S. 316, 328

(1914) (“There is no difference of kind, but only of

degree, between a permanent condition of continual

overflow by backwater and a permanent liability to

intermittent but inevitably recurring overflows; and,

on principle, the right to compensation must arise in

the one case as in the other.”). But floods that visit

once and then recede do not give rise to takings

150 (1924) (holding that “the injury was in its nature

indirect and consequential, for which no implied

obligation on the part of the Government can arise”

where flooding is neither permanent, nor is

intermittent but inevitably recurring); see also Bartz

v. United States, 633 F.2d 571, 577 (Ct. Cl. 1980)

(listing cases where plaintiffs could not recover

because “they failed to prove the element of

18a

inevitably recurring floods”). The former two types of

floods appropriate the landowner’s property; the

latter injures but does not appropriate it.

The landowners contend that the taking is

permanent, arguing that “[flire, however, is not like

one or two floodings that recede and then allow for a

repossession of the land.” But many a city has

rebuilt after a devastating fire, so we cannot infer

from the complaint that the fire prevented the

rebuilding of infrastructure that would aliow the

landowners to reoccupy their property. Furthermore,

floods and fires can both substantially injure real

and personal property with merely one invasion. In

the flooding cases, appropriation means that the

water stays on the property indefinitely, or

predictably returns—a permanent invasion. Here,

the fire has come and gone, and there is no

allegatien that the injuries prevent future use of the

land, or that the fire will intermittently but

inevitably recur. To satisfy the appropriation

requirement, the preemption must be sufficiently

permanent that it can be said that the government

has exercised dominion over the property.

CONCLUSION

Accordingly, the judgment of the United

States Court of Federal Claims is affirmed.

AFFIRMED

19a

inN TERED: NOVEMBER 1, 2007]

In the United States Court of Federal Claims

No. 06-707L

Filed: November 1, 2007

RICHARD CARY, et al.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

Fifth Amendment Takings—The Forest Service’s fire

suppression policies cannot support a claim for

inverse condemnation when the damage complained

of was the result of a fire caused by an individual not

acting as the government’s agent.

Mark S. Grotefeld, Grotefeld & Hoffmann,

L.L.P., Chicago, Illinois, counsvi for plaintiffs.

Heide L. Herrmann, with whom was Acting

Assistant Attorney General Ronald J. Tenpas, U.S.

Department of Justice, Environment and Natural

Resources Division, Natural Resources Section,

Washington, DC, counsel for defendant.

ORDER

WIESE, Judge.

20a

Plaintiffs, fourteen landowners in Southern

California, sue here for just compensation under the

Fifth Amendment to the United States Constitution

for damage to their properties resulting from a forest

fire in the Cleveland National Forest that began on

October 25, 2003. Plaintiffs maintain that the forest

fire, although set by a lost hunter, was the

consequence of the United States Forest Service’s

long-standing land management policies and that

the losses they suffered therefore constitute a taking

of property by the United States government.

The case is currently before the court on

defendant’s motion for judgment on the pleadings on

the ground that the complaint, on its face, fails to

state a basis for relief under the Fifth Amendment.

The court heard oral argument on defendant’s

motion on October 16, 2007. At the close of the

argument, the court entered a bench ruling in

defendant’s favor. This order explains more fully the

basis for that ruling.

I.

The Cleveland National Forest (the “Forest”)

is the southernmost national forest in the state of

California, located just north of Mexico and east of

the city of San Diego. The Forest comprises some

460,000 acres of varying terrain. On October 25,

2003, a group of individuals was granted access to a

remote area of the Forest to hunt deer. One of these

hunters, who had become separated from the group,

started a small fire in an attempt to signal for help.

The fire, referred to as the Cedar Fire, quickly

spread out of control, however, and over the next five

2la

days burned more than 273,000 acres of woodland,

2,232 private residences, 22 commercial structures,

and 566 outbuildings, making it, at the time, the

largest fire in California history. Tragically, the

Cedar Fire also claimed the lives of fourteen civilians

and one firefighter.

According to plaintiffs’ complaint, extreme fire

hazard conditions existed within the Forest on or

before the time the Cedar Fire began. These

conditions, plaintiffs contend, were due in large part

to the Forest Service’s decades-long policy of

suppressing naturally occurring fires in favor of

preserving natural resources for the benefit of the

public, thus contributing to the growth of

unnaturally dense stands of trees and to the creation

of highly flammable fuel loads in the Forest.

Plaintiffs maintain that the fire risks associated

with these land management policies were further

heightened by the public’s use of the Forest lands for

recreational purposes, such as hunting, which the

Forest Service not only permitted but in fact

encouraged. Plaintiffs thus argue that as a result of

these policies, a major conflagration—originating

within the Forest but spreading beyond the Forest

boundaries to engulf adjacent properties—was a

virtual certainty. Plaintiffs additionally note that

such a major conflagration was not only predictable

but in fact was predicted by the Forest Service

significantly in advance of the Cedar Fire. Plaintiffs

thus view their losses as the certain result of

deliberate policy choices made by the Forest Service

acting in full awareness of the risks those policies

entailed. Such deliberate action, plaintiffs claim,

22a

constitutes a taking of their property by inverse

condemnation.

II.

In considering defendant’s motion for

judgment on the pleadings, we must accept the truth

of the facts as set forth in the complaint. Gould, Inc.

v. United States, 935 F.2d 1271, 1274 (Fed. Cir.

1991) (holding that the court must “assume all well-

pled factual allegations are true and indulge in all

reasonable inferences in favor of the nonmovant”).

The question, then, is whether, as a matter of law,

plaintiffs’ facts establish a taking of property by

inverse condemnation. We conclude that they do not.

“Inverse condemnation is a ‘shorthand

description of the manner in which a landowner

recovers just compensation for a taking of his

property when condemnation proceedings have not

been instituted.” Moden v. United States, 404 F.3d

1335, 1342 (Fed. Cir. 2005) (quoting United States v.

Clarke, 445 U.S. 253, 257 (1980)). Fundamentally,

inverse condemnation is a cause of action grounded

on invasive government activity, initiated without

the benefit of a formal exercise of the power of

eminent domain, that results in the prolonged or

continuous interference with an owner’s use and

enjoyment of his property. Id.

To succeed on a claim alleging inverse

condemnation, a property owner must prove that

“the government intend[ed] to invade a protected

property interest or [that] the asserted invasion

{was] the ‘direct, natural, or probable result of an

23a

authorized activity and not the incidental or

consequential injury inflicted by the action.” Ridge

Line, Inc. v. United States, 346 F.3d 1346, 1356

(Fed. Cir. 2003) (quoting Columbia Basin Orchard v.

United States, 132 Ct. Cl. 445, 450 (1955)). To bring

themselves within the framework of this

requirement, plaintiffs identify as the government

action giving rise to their claim the various land

management policies—the statutes, directives, and

goals—that drive and inform the government’s

management of the Forest.’ Plaintiffs argue that

these policies “as designed, carried with them the

direct, natural, probable, and foreseen result of

damage by fire to lands adjacent to the {Forest],” in

particular that “disturbance to the fire regime in the

[Forest] directly, naturally, and foreseeably led to

the increased magnitude and spread of the Cedar

Fire and the resulting damage to Plaintiffs’

properties.”

In making their case, plaintiffs rely on a series

of inverse condemnation cases involving damage by

flood as analytically similar to their own situation.

Plaintiffs point, for example, to Cotton Land Co. v.

United States, 109 Ct. Cl. 816 (1948), a case in

which the government’s impoundment of water

' Included among the statutes that plaintiffs identify as

comprising part of the government’s land management policies

are the Organic Administration Act (16 U.S.C. § 475 et seq.),

the National Environmental Policy Act (42 U.S.C. § 4321 et

seq.), the Federal Advisory Committee Act (5 U.S.C. App. 2),

the Endangered Species Act (16 U.S.C. § 1531 et seq.), the

Clean Water and Clean Air Acts (33 U.S.C. § 1251 et seq. and

42 U.S.C. § 7401 et seq.), and the National Forest Management

Act (16 U.S.C. § 1600 et seq.).

24a

behind the Parker Dam led, over a period of years, to

the build-up of the river bed above the dam through

the disposition of sand and thus eventually to the

permanent flooding of the plaintiffs’ upstream

properties. In concluding that a taking had in fact

occurred, the court explained:

The events which occurred, although

they took some time, were only the

natural consequences of the collision of

sediment-bearing flowing water with

still water, and the progress upstream,

of the deposit begun by that collision. If

engineers had studied the question in

advance they would, we suppose, have

predicted what occurred.

Id. at 829. The court thus saw the invasion of

plaintiffs’ land as “the actual and natural

consequence of the Government’s act.” Id.

Just as the government’s disruption of the

river flow in Cotton Land led to an alteration of the

river's ecology and ultimately to the river’s invasion

of the claimants’ lands, plaintiffs argue that here,

too, the government’s disruption of naturally

occurring fires as a seasonal element in the Forest’s

regime led to an alteration of the Forest’s ecology

and ultimately to the creation of a condition that

invaded plaintiffs’ lands. For plaintiffs, then, the loss

of their properties by fire was as foreseeable a result

of the government’s action as was the loss of the

plaintiffs’ lands by flooding in Cotton Land.

25a

Although plaintiffs argue their position well,

we cannot accept it. Our difficulty is not with the

foreseeability of the harm plaintiffs suffered but

with the cause of the harm. At their core, claims of

inverse condemnation involve physical invasions of

private property by forces that the government itself

has set into motion. That is not the case here. The

government did not cause the Cedar Fire. Rather, as

the facts demonstrate, a hunter started the fire. And

unless one is prepared to say that the hunter was

acting as the government’s agent, causation cannot

be attributed to the government. It must follow,

then, that since the government was not an actor, it

cannot be a taker.

In reaching this conclusion, we remain

mindful of plaintiffs’ assertion that the Forest

Service’s fire suppression policies heightened the

risk of a major conflagration. That fact may be

relevant to a tort theory (a point on which the court

intends to express no opinion), but not to a takings

theory. What plaintiffs may challenge here under

the Fifth Amendment is what the government

actually did; not the effects to which its land

management policies may _ indirectly have

contributed.

Ill.

For the reasons announced at oral argument

and as further explained above, defendant’s motion

for judgment on the pleadings is granted. The Clerk

is directed to enter judgment dismissing plaintiffs’

complaint. No costs.

26a

s/John P. Wiese

John P. Wiese

Judge

27a

[ENTERED: FEBRUARY 12, 2009]

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

2008-5022

RICHARD CARY, SUSAN CARY, PATRICIA

GEERTS, SHARON HENRY, JAMES HERZOG,

DIANE KNUEFFER, PATRICIA MARTIN,

ROBERT S. MARTIN, JANET MARIE PRIATT,

DONA SCHNEIDER, DOUGLAS SCHWAEBE,

CARL SCHWEIKERT, KATHERINE

SCHWEIKERT, DAVID SOUTHCOTT, and MARY

CAROL WILDER, on behalf of themselves and all

others similarly situated,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal

Claims in 06-CV-707, Senior Judge John P. Wiese

ORDER

NOTE: This order is nonprecedential.

28a

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

ORDER

Before Mayer, Circuit Judge, Linn, Circuit Judge,

and Moore, Circuit Judge.

A petition for rehearing having been filed by

the Appellants,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be,

and the same hereby is, DENIED.

The mandate of the court will issue on March

9, 2009.

FOR THE COURT,

s/Jan Horbaly

Jan Horbaly

Clerk

Dated: 02/12/2009

Mark S. Grotefeld

Katherine Hazard

CARY V US, 2008-5022

(CFC - 06-CV-707)

29a

[ENTERED: OCTOBER 13, 2006]

IN THE UNITED STATES COURT OF

FEDERAL CLAIMS

RICHARD AND SUSAN CARY, PATRICIA

GEERTS, SHARON HENRY, JAMES HERZOG,

DIANE KNUEFFER, PATRICIA MARTIN,

ROBERT S. MARTIN, JANET MARIE PRIATT,

DONA SCHNEIDER, DOUGLAS SCHWAEBE,

CARL AND KATHERINE SCHWEIKERT, DAVID

SOUTHCOTT, and MARY CAROL WILDER, on

behalf of themselves and all other similarly situated,

who sustained damage to a property interest as a

result of the Cedar Fire,

Plaintiffs,

vs.

THE UNITED STATES,

Defendant.

CLASS ACTION COMPLAINT FOR

INVERSE CONDEMNATION

COMPLAINT

Plaintiffs, RICHARD AND SUSAN CARY,

PATRICIA GEERTS, SHARON HENRY, JAMES

HERZOG, DIANE KNUEFFER, PATRICIA’ MARTIN,

ROBERT S. MARTIN, JANET MARIE PRIATIT, DONA

SCHNEIDER, DOUGLAS SCHWAEBE, CARL AND

KATHERINE SCHWEIKERT, DAVID SOUTHCOTT, and

30a

MARY CAROL WILDER, on behalf of themselves and all

other similarly situated (hereinafter referred to collectively as

“PLAINTIFFS”), by their attorneys, GROTEFELD &

DENENBERG, L.L.C., sue Defendant, THE UNITED

STATES (hereinafter referred to as the “DEFENDANT?”),

for the uncompensated taking of PLAINTIFFS’ property. As

grounds for their complaint, PLAINTIFFS state as follows:

INTRODUCTION

i: This lawsuit, stemming from the Cedar

Fire of October 2005 (hereinafter referred to as the

“Cedar Fire”), seeks redress for the PLAINTIFFS’

property interests that were taken without just

compensation as a result of DEFENDANT'S acts.

JURISDICTION AND VENUE

z: This court has exclusive jurisdiction

over the subject matter of this action, and venue is

appropriated pursuant to the Tucker Act, 28 U.S.C. §

1491(a) in concert with the Fifth Amendment to the

United States Constitution, which prohibits the

DEFENDANT from any “taking” of private property

without just compensation.

PARTIES

3. At all relevant times herein, Plaintiffs

Richard and Susan Cary owned real and personal

property located at 16725 Harrison Park Trail,

Julian, California that was taken without just

compensation during the Cedar Fire as a result of

DEFENDANT'S acts.

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4. At all relevant times herein, Plaintiff

Diane Knueffer owned real and personal property

located at 30 Twin Oaks Road, Julian, California

that was taken without just compensation during

the Cedar Fire as a result ofp DEFENDANTS acts.

5. At all relevant times herein, Plaintiffs

Carl and Katherine Schweikert owned real and

personal property located at 16952 Iron Springs

Road, Julian, California that was taken without just

compensation during the Cedar Fire as a result of

DEFENDANTS acts.

6. At ail relevant times herein, Plaintiff

David Southcott owned real and personal property

located at 17264 Iron Springs Road, Julian,

California that was taken without just compensation

during the Cedar Fire as a result of DEFENDANT’S

acts.

7. At all relevant times herein, Plaintiff

James Herzog owned real and personal property

located at 30 Twin Oaks Road, Julian, California

that was taken without just compensation during

the Cedar Fire as a result of DEFENDANT'S acts.

8. At all relevant times herein, Plaintiff

Patricia Geerts owned real and personal property

located at 14805 Mussey Grade Road, Ramona,

California that was taken without just compensation

during the Cedar Fire as a result of DEFENDANT'S

acts.

9. At all relevant times herein, Plaintiff

Janet Marie Priaatt owned real and _ personal

32a

property located at 13835 Fernbrook Drive, Ramona,

California that was taken without just compensation

during the Cedar Fire as a result of DEFENDANTS

acts.

10. At all relevant times herein, Plaintiff

Sharon Henry owned real and personal property

located at 1383 Fernbrook Drive, Ramona, California

that was taken without just compensation during

the Cedar Fire as a result of DEFENDANT'S acts.

11. At all relevant times herein, Plaintiff

Dona Schneider owned real and personal property

located at 14062 Fernbrook Drive, Ramona,

California that was taken without just compensation

during the Cedar Fire as a result of DEFENDANT'S

acts.

12. At ali relevant times herein, Plaintiff

Mary Carol Wilder owned real and personal property

located at 14110 Fernbroox Drive, - Ramona,

California that was taken without just compensation

during the Cedar Fire as a result of DEFENDANT'S

acts.

13. At all relevant times herein, Plaintiff

Douglas Schwaebe owned real and personai property

located at 13150 Genesis Way, Lakeside, California

that was taken without just compensation during

the Cedar Fire as a result of DEFENDANT'S acts.

14. At all relevant times herein, Plaintiff

Robert S. Martin owned real and personal property

located at Assessors Parcel Numbers: 1) 294-160-22-

00; 2) 294-160-26-00; 3) 293-180-30-00; 4) 293-180-

33a

34-00; 5) 293-180-58-00; 6) 293-180-59-00; 7) 293-

180-60-00; 8) 293-180-63-00; and 9) 293-180-64-00,

North Peak, Cuyamaca, Julian, California that was

taken without just compensation during the Cedar

Fire as a result of DEFENDANTS acts.

15. At all reievant times herein, Plaintiff

Patricia Martin owned rea! and personal property

located at Assessors Parcei Number: 294-160-23-00,

North Peak, Cuyamaca, Julian, California that was

taken without just compensation during the Cedar

Fire as a result of DEFENDANTS acts.

16. At ali relevant times and as though

fully set forth herein, other persons similarly

situated owned real and/or personal property at

locations described in Exhibit “A” to this Complaint

that was taken without just compensation during

the Cedar Fire as a result of DEFENDANT'S acts.

17. PLAINTIFFS are informed and believe

that at all pertinent times herein, DEFENDANT,

d/b/a the United States Department of Agriculture

(“USDA”), the USDA Forest Service, and/or other

federal governmental entities duly organized and

existing under and by virtue of the laws of the

United States, owned and was in control of the

public land commonly known as the Cleveland

National Forest.

34a

FACTUAL BACKGROUND

18. The Cleveland National Forest

(hereinafter referred to as the “CNF”) consists of

460,000 acres of varying terrain and is the

southernmost National Forest in the State of

California. It is located just north of Mexico and

east of the City of San Diego.

19. On and well before October 25, 2003,

extreme fire hazard conditions existed within the

CNF as a direct result of DEFENDANT'S land

management policies for the CNF, DEFENDANT'S

public access policies regarding the CNF, and other

known precipitating factors including, but not

limited to, dried vegetation, low humidity, high

temperatures, predicted high winds and other

seasonal weather conditions in Southern California

20. On October 25, 2003 a group of public

citizens was granted access to remote areas of the

CNF by DEFENDANT to hunt deer. One of these

hunters started a small signal fire in the CNF when

he became separated from the group. The small

signal fire, then confined to the CNF, was observed

by citizens and reported to governmental agencies,

including the DEFENDANT, during the afternoon of

October 25, 2003.

21. Over the course of the next five (5)

days, what was a small signal fire spread from the

CNF to surrounding properties and became the

largest fire in California history. The Cedar fire

burned more than 273,000 acres, 2,232 residences,

22 commercial structures, 566 outbuildings and took

35a

the lives of fourteen (14) civilians and one (1)

firefighter.

22. Local, State and Federal governmental

agencies have determined that as a result of the

Cedar Fire, the monetary losses suffered by property

owners in the County of San Diego, including the

property noted in Exhibit “A” to this Complaint,

exceeded Two Hundred Million Dollars

($200,000,000.00).

CLASS ALLEGATIONS

23. This action is brought in accordance

with Rule 23 of the Rules of the Court of Federal

Claims.

24. The class consists of persons who owned

property located in and around the County of San

Diego whose real and/or personal property was

damaged and/or destroyed during the Cedar Fire

that occurred on or about October 25, 2003

(hereinafter referred to as the “CLASS”).

25. The CLASS is so numerous that joinder

of all members individually is impracticable.

Attached to this Complaint as Exhibit “A” and

incorporated as though fully set forth herein is a list

of addresses showing properties where the County of

San Diego has found damage and/or destruction of a

property occurred as a direct result of the Cedar

Fire. Though Plaintiffs are informed and believe

that the CLASS includes thousands of persons, as

the Cedar Fire affected over 2,000 residences, the

36a

CLASS is nonetheless manageable as there is a

record of damaged and destroyed properties.

26. The questions of law and fact at issue in

this controversy are common to the CLASS. The

same decisions and calculated risks taken by

DEFENDANT affected and are common to the

CLASS. Decades of land management policies

employed by DEFENDANT in the CNF as well as

guidelines utilized by DEFENDANT in the CNF to

facilitate public recreational use of the CNF during

times of heightened fire danger carried the risk that

neighboring private property would be “taken,” and

ultimately these failed policies led to the damage

and destruction of the property interests of all

potential CLASS members.

27. DEFENDANT treated the entire

CLASS similarly with respect to its land

management and public access policies within the

CNF.

28. The questions of law and fact common

to the CLASS predominate over questions of law and

fact which affect only individual members of the

CLASS. The common core of salient facts (the acts

and/or omissions of DEFENDANT alleged herein)

applies to the injuries sustained by all individual

members of the CLASS. The individual claims will

differ only in the amount of damages and the nature

of the property interest impaired. If beneficial or

necessary for judicial economy, subclasses may be

formulated reflecting the specific types of damages

suffered by CLASS members.

37a

29. The claims of the named PLAINTIFFS

are typical of the claims of the CLASS. All claims,

whether by named PLAINTIFFS or members of the

CLASS, stem from injury to property interests as a

result of the same acts and/or omissions of

DEFENDANT. Although some individuals

comprising the claimant CLASS will not have

sustained one or several of the types of damages

suffered by the named PLAINTIFFS (for example

renters will not have suffered damage to land), the

converse is not true.

30. Many members of the CLASS who did

not sustain extensive property damage (i.e., renters)

would most likely not pursue a claim if a class action

were not available due to the burden and expense of

litigation.

31. The named PLAINTIFFS are able fairly

and adequately able to protect the interests of all

members of the CLASS, since the named

PLAINTIFFS have interests in this action which are

coincident with and not adverse to the CLASS they

represent, and since the named PLAINTIFFS

individually have a substantial financial interest in

this action. The named PLAINTIFFS are also

members of the CLASS.

32. The named PLAINTIFFS have

employed attorneys experienced and competent in

representing numerous plaintiffs in the prosecution

of complex property damage claims, including large

wildfire related litigation.

38a

33. On balance, a class action is superior to

other methods available for adjudicating the

controversy. By maintaining this action as a class

action, individual CLASS members who have claims

which might not otherwise warrant individual

actions are provided with an accessible forum for

redress of their claims, and the possibility of

repetitious litigation will be eliminated. Individual

litigation of the claims of all CLASS members is

impracticable. By contrast, conducting this action as

a class action with respect to some or all of the issues

presented herein, presents fewer management

difficulties, conserves the resources of the parties

and of the court system, prevents inconsistent

results, and protects the right of CLASS member.

CLAIM FOR INVERSE CONDEMNATION

34. PLAINTIFFS hereby incorporate by

reference, as though fully set forth herein,

paragraphs 1 to 33.

35. Upon information and belief, at all

relevant times DEFENDANT was responsible for

and in fact controlled forest and vegetation

management within the CNF.

36. Upon information and belief, at all

relevant times DEFENDANT was responsible for

fire modeling within the CNF.

37. Upon information and belief, at all

relevant times DEFENDANT was responsible for

emergency response planning within the CNF.

39a

38. Upon information and belief, at all

relevant times DEFENDANT was responsible for

general fire abatement and suppression activities

within the CNF.

39. Upon information and belief, it was

DEFENDANT'S land management policy from 1911

to 1968 to suppress each and every wildfire in

National Parklands, including the CNF, so as to

preserve all timber and watersheds, as well as to

conserve National Parkland wildlife for public use

and enjoyment.

40. Upon information and belief, while

DEFENDANT’S land management policy with

respect to wildfire suppression in the CNF changed

in 1968 to the extent that it no longer explicitly

mandated the suppression of all wildfires,

DEFENDANT'S fire suppression policies in the CNF

remain focused on preserving natural resources for

the public’s use, whether based on safeguarding a

watershed, protecting timer, or permitting public

recreational access to the CNF.

41. Upon information and belief, the land

management policies implemented by DEFENDANT

over the greater portion of the 20" Century, and

continuing to the present day, resulted in the

development of unnaturally dense stands of trees

and other highly flammable fuel loads in the CNF.

42. At all relevant times, DEFENDANT

was or should have been aware that its land

management policies as they related to fire

suppression and prevention for the CNF created a

40a

significant risk that a wildfire originating in the

CNF and fueled by the buildup of highly flammable

vegetation in the CNF would spread to adjacent

landowners’ properties.

43. Upon information and belief, at all

relevant times herein DEFENDANT was responsible

for granting the general public’s use of and access to

the CNF.

44. Upon information and belief, over the

latter half of the 20" Century, and continuing to the

present day, DEFENDANT’S land management

policies not only permitted, but encouraged the CNF

to be increasingly used by the public for various

recreational purposes, including hunting.

45. Upon information and belief, at all

relevant times herein one of the DEFENDANT'S

land management policies was to permit public

recreational access to and use of the CNF for

hunting purposes during heightened fire hazard

conditions, despite the known risk of a fire being

started by a hunter or other like recreational user in

the CNF, and despite the known risk that any such

fire caused by a hunter or other public user in the

CNF would likely lead to a wildfire spreading to

neighboring privately owned properties.

46. On or about October 25, 2003,

DEFENDANT, in granting hunters and other like

public recreational users access to the CNF, took the

calculated risk that if any hunter or other like

recreational user started a fire that privately owned

property situated adjacent to the CNF would be

4la

damaged and/or destroyed by the spread of wildfire

from the CNF to those properties.

47. DEFENDANT made the _ deliberate

decision to continue its land management policies,

including its public access practices, in furtherance

of the public’s interest in spite of fhe known

attendant risk of a wildfire spreading from the CNF

to privately owned property.

48. DEFENDANT, acting in the public

interest, took the known calculated risk that its land

management policies in the CNF would result in a

“taking” of adjacent landowners’ property in the

event of a fire originating in the CNF and spreading

beyond the CNF’s boundaries.

49. The risks attendant to DEFENDANT'S

land management policies for the CNF materialized

on or about October 25, 2003 when during a known

period of extreme fire hazard conditions, the signal

fire started in the CNF by the separated hunter

spread to neighboring privately owned lands,

directly resulting in the “taking” of PLAINTIFFS’

property, without just compensation.

50. The PLAINTIFFS, whose property was

“taken” by DEFENDANT, should not be required to

shoulder alone the devastating’ effects of

DEFENDANT'S land management policies. Rather,

that burden should be borne by the DEFENDANT

itself.

42a

WHEREFORE, PLAINTIFFS _ respectfully

request this Honorable Court to certify this action as

a class action and enter a judgment against

Defendant, THE UNITED STATES, in an amount no

less than Two Hundred Thirty Six Million, Fight

Hundred Ninety Thousand, Six Hundred Forty Eight

dollars ($236,890,648.00) as just compensation for

the Fifth Amendment “taking” of PLAINTIFFS’

property, plus interest, cost, and attorneys fees

pursuant to 28 U.S.C. §2412 and as otherwise

accorded by law.

Dated this 12th day of October, 2006

Respectfully submitted,

/s/ Mark S. Grotefeld

Mark S. Grotefeld

GROTEFELD & DENENBERG, L.L.C.

105 West Adams Street, Suite 2300

Chicago, Illinois 60603

Telephone: (312) 601-2398

Facsimile: (312) 601-2402

Counsel for Plaintiffs.