             In the United States Court of Federal Claims
                                          No. 17-855C

                                    (Filed: December 7, 2017)

 **********************************
                                              )
 HAHNENKAMM, LLC,                             )    Statutory and contractual claims;
                                              )    jurisdiction; Santini-Burton Act; Southern
                       Plaintiff,             )    Nevada Public Land Management Act;
                                              )    alleged breach of contractual terms sufficient
        v.                                    )    to state a claim for relief under the Tucker
                                              )    Act
 UNITED STATES,                               )
                                              )
                       Defendant.             )
                                              )
 **********************************

        Roger J. Marzulla, Marzulla Law, LLC, Washington, DC, for plaintiff. With him on the
briefs and at the hearing was Nancie G. Marzulla, Marzulla Law, LLC, Washington, DC.

        Geoffrey Martin Long, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, for defendant. With him on the briefs
were Chad A. Readler, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman,
Jr., Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch,
United States Department of Justice, Washington DC.

                                    OPINION AND ORDER

LETTOW, Judge.

        Hahnenkamm, LLC seeks damages against the United States, alleging a breach of
contract and contravention of two federal statutes, the Santini-Burton Act, Pub. L. No. 96-586,
94 Stat. 3381 (1980) (not codified in relevant part in the United States Code), and the Southern
Nevada Public Land Management Act, Pub. L. No. 105-263, 112 Stat. 2343 (1998) (“Southern
Nevada Land Act”) (not codified in relevant part in the United States Code). Hahnenkamm’s
claims stem from a land transaction by which the United States Forest Service’s Lake Tahoe
Basin Management Unit acquired “Cave Rock Summit,” a 39.25 acre tract of land overlooking
Lake Tahoe in Douglas County, Nevada. The transaction occurred under an Option Agreement
entered between Hahnenkamm and the Forest Service. Compl. at 1-2 & ¶ 6.

        Hahnenkamm alleges that the statutes, which authorize the Forest Service to acquire
“environmentally sensitive lands” in the Lake Tahoe region, require the Forest Service to pay
fair market value for those acquisitions, and that the Option Agreement that governed the
transaction likewise obligated the Forest Service to pay fair market value and obtain an appraisal
that conformed to certain federal land appraisal standards—standards with which the Forest
Service allegedly did not comply. Compl. at 1 & ¶ 34. Hahnenkamm asserts that the fair market
value of Cave Rock Summit is approximately $20,000,000, and seeks damages in the amount of
the difference between the purchase price provided in the Option Agreement and the fair market
value as determined by an appraisal conducted in conformity with federal land appraisal
standards. Compl. at 1 & ¶ 34.

         Pending before the court is the government’s motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”) and for
failure to state a claim upon which relief may be granted under RCFC 12(b)(6). Def.’s Mot. to
Dismiss (“Def.’s Mot.”), ECF No. 5. This motion has been fully briefed by the parties and is
ready for disposition.

                                        BACKGROUND1

         Cave Rock Summit was acquired in 1909 and passed down to family members through
several generations. Compl. ¶ 6. In 2004, the family formed Hahnenkamm, a Nevada limited
liability company, to hold title to Cave Rock Summit, intending to develop it as a “luxury
residential estate compound.” Compl. ¶¶ 1, 6. From 2004 to 2014, Hahnenkamm satisfied
various prerequisites to developing Cave Rock Summit, including securing building permits
from the Tahoe Regional Planning Agency and rights-of-way for access from the Forest Service.
Compl. ¶¶ 7-8. Also during this time, Hahnenkamm was in talks to sell Cave Rock Summit to
the government for conservation purposes. See Compl. ¶¶ 17-23.

        The Forest Service issued preliminary approval to purchase Cave Rock Summit in 2008,
earmarking $11,686,950 for the acquisition. Compl. ¶ 17. In late 2013, the Service retained
Daniel Leck, a local-appraiser to perform an appraisal of the property. Compl. ¶ 19. Cave Rock
Summit was initially appraised at $4 million, which Hahnenkamm did not accept and instead
requested a second opinion. Compl. ¶¶ 19-20. The Forest Service permitted a second appraisal
to be done at Hahnenkamm’s expense, but subjected the second appraisal to a Valuation Services
Protocol that restricted Hahnenkamm’s authority to participate in the appraiser’s work. Compl.
¶¶ 20-21. The second appraisal, by the Doré Group, determined the value of Cave Rock Summit
to be $5.03 million. Compl. ¶ 22 & Ex. 3. The government adopted the $5.03 million valuation
as the appropriate price for Cave Rock Summit, and declined to negotiate further with
Hahnenkamm as to price. Compl. ¶ 22. Hahnenkamm takes issue with several aspects of the
Doré appraisal that served as the basis for the eventual purchase price of Cave Rock Summit.
Among other things, Hahnenkamm alleges that “[t]he appraisal inaccurately described the
subject property as having no legal or physical access and no entitlements,” even though it “had
both TRPA approval for road construction and a commitment from the Forest Service to provide
access,” ignored the “land coverage entitlement of 319,066 square feet, a transferable
development right that c[ould] be sold to other landowners,” and “mistakenly identifie[d] the




       1
         The recitations that follow do not constitute findings of fact but rather are drawn from
allegations in the complaint and documentary materials appended to the complaint.


                                                 2
highest and best use . . . ‘AS VACANT: Rural residential or recreational land uses.’” Compl. at
¶ 26; see also Compl. Ex. 3, at 6-10 (Doré Group Appraisal).2

       On June 28, 2015, after unsuccessfully attempting to negotiate a higher price for the sale
of Cave Rock Summit to the Forest Service, Hahnenkamm granted the Forest Service a 24-
month option to purchase the property for the $5.03 million appraised value. See Compl. ¶ 23 &
Ex. 1. The Option Agreement is set out on a form used by the Forest Service. See Compl. Ex. 1
(Option Agreement), at 1 (showing USDA Forest Service form FS-5400-36 (09/2008)). The
government exercised the option on July 7, 2015, and purchased Cave Rock Summit for $5.03
million. See Compl. at 23; Def.’s Mot. at 4. Hahnenkamm filed the instant complaint on June
23, 2017.

                                 STANDARDS FOR DECISION

                                              A. Rule 12(b)(1)

        The Tucker Act provides this court with jurisdiction over “any claim 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).
Although the Tucker Act waives sovereign immunity and allows a plaintiff to sue the United
States for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), it does not
provide a plaintiff with substantive rights, United States v. Testan, 424 U.S. 392, 398 (1976). To
perfect jurisdiction in this court, “a plaintiff must identify a separate source of substantive law
that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005) (en banc in relevant part) (citing Mitchell, 463 U.S. at 216; Testan, 424 U.S. at 398).
That is, the plaintiff must identify a source of substantive law that “can fairly be interpreted as
mandating compensation by the Federal Government for the damage sustained”—commonly
referred to as a money-mandating provision of law. Testan, 424 U.S. at 400 (quoting Eastport
S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Cl. Ct. 1967)) (additional citation omitted).

        Hahnenkamm, as plaintiff, bears the burden of establishing that jurisdiction exists by a
preponderance of the evidence. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163
(Fed. Cir. 2011) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.
1988)). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court must
“accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable
inferences in favor of the plaintiff.” See id. (citing Henke v. United States, 60 F.3d 795, 797
(Fed. Cir. 1995)). Thus, a complaint will be dismissed on jurisdictional grounds only “if it
appears beyond doubt that [the] plaintiff can prove no set of facts . . . which would entitle [it] to
relief.” Frymire v. United States, 51 Fed. Cl. 450, 454 (2002) (citing Davis v. Monroe Cty. Bd.
of Educ., 526 U.S. 629, 654 (1999)) (internal brackets and quotation marks omitted).




       2
        Hahnenkamm also contends that “the appraiser, who is based in California, was not
licensed to appraise property in Nevada at the time he began work.” Compl. ¶ 26.


                                                  3
        “If a court lacks jurisdiction to decide the merits of a case, dismissal is required as a
matter of law.” Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74
U.S. (7 Wall.) 506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985));
see also Treviño v. United States, 113 Fed. Cl. 204, 207 (2013) (“Where the court has not been
granted jurisdiction to hear a claim, the case must be dismissed.”) (citing Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006)).

                                             B. Rule 12(b)(6)

         A complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual matters alleged “must be enough
to raise a right to relief above the speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citation
omitted). In this context, “the court must accept as true the complaint’s undisputed factual
allegations and should construe them in a light most favorable to the plaintiff.” Cambridge v.
United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Papasan v. Allain, 478 U.S. 265, 283
(1986) (additional citation omitted)).

                                           ANALYSIS

                                       A. The Santini-Burton Act

        The government seeks dismissal of Hahnenkamm’s complaint in part because it contends
that neither the Santini-Burton Act nor the Southern Nevada Land Act are money-mandating,
and thus that Hahnenkamm’s claim that the government contravened those statutes is outside this
court’s jurisdiction. Def.’s Mot. at 11-12.

         The Santini-Burton Act authorizes the Secretary of Agriculture to acquire
environmentally sensitive land located in the Lake Tahoe Basin for purposes of preserving the
environmental quality of the region. See Pub. L. No. 96-586, § 1(b). The Act differentiates the
Secretary’s powers and responsibilities in land acquisitions based on whether the land is
“improved” or “unimproved” as defined by the Act, §§ 1-3. “Improved land” is defined as “any
land on which there is located a single family dwelling or other residential or commercial
building, the construction of which commenced before the date of enactment of this Act.” Id. §
3(c)(4)(A). In contrast, “unimproved land” is any land other than improved land. Id. at §
3(c)(4)(B). The Santini-Burton Act provides that the Secretary may acquire improved land (1)
only in California, (2) only with the consent of the owner (with limited exceptions), subject to a
right by the owner to retain use and occupancy of the land for a period ranging from 25 years to
the life of the owner, and, (3) most importantly, unless the land be acquired by donation, the
Secretary “shall pay to the owner the fair market value of the improved land on the date of its
acquisition.” Id. § 3(c).

       The provisions of the Santini-Burton Act addressing the Secretary’s authority to acquire
unimproved land are less restrictive. To acquire unimproved land without the consent of the
owner, the Secretary must determine that negotiation has failed. See id. § 3(d). Likewise, the



                                                 4
Act makes no provision for a landowner to retain an interest in the use and occupancy of the land
after the sale. See id. § 3. Finally, for unimproved land, the Act requires that “[t]he fair market
value of any land or interest in land to be acquired by the Secretary of Agriculture under this
section shall be determined by an independent appraisal made, where practicable, on the basis of
comparable sales at the time of such acquisition.” Id. § 3(e).

        A court ascertaining the meaning of a statute must begin with the statute’s plain meaning.
See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s
language is plain, ‘the sole function of the courts is to enforce it according to its terms.’”) (citing
Caminetti v. United States, 242 U.S. 470, 485 (1917)). “[C]ourts must presume that a legislature
says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank
v. Germain, 503 U.S. 249, 253-54 (1992). Courts “do not . . . construe statutory phrases in
isolation[ but instead] read statutes as a whole,” United States v. Morton, 467 U.S. 822, 828, and
thus the Supreme Court has recognized that “[w]here Congress uses certain language in one part
of a statute and different language in another, it is generally presumed that Congress acts
intentionally,” National Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 544 (2012) (citing
Russello v. United States, 464 U.S. 16, 23 (1983)).

         A plain reading of the Santini-Burton Act as a whole leads to the conclusion that it
intended to provide greater protection to owners of improved land—and for single-family
dwellings on improved land in particular—than to owners of unimproved land. Compare
Santini-Burton Act § 3(c)(2) (“[n]o single family dwelling which is improved land . . . may be
acquired . . . without the consent of the owner [unless . . .]”); and id. § 3(c)(5) (“Unless the
improved land is wholly or partially donated, the Secretary of Agriculture shall pay to the owner
the fair market value of the improved land.”), with id. § 3(e) (“The fair market value of any land
or interest in land[, improved or unimproved,] . . . shall be determined by an independent
appraisal.”). Nonetheless, despite their differences, the basis for the Forest Service purchase of
either category of land must reflect fair market value based upon an independent appraisal. Id. §
3(e). The government rests its jurisdictional motion to dismiss Hahnenkamm’s claim under the
Santini-Burton Act on the distinction between “shall pay” regarding improved lands and “shall
be determined” respecting unimproved lands, arguing that the Act is not money-mandating
insofar as the latter category is concerned. Def.’s Mot. at 12 (“[The] statutory language requiring
an [independent] appraisal does not require the Forest Service to pay the seller fair market
value.”); Def.’s Reply at 6 (“[T]he requirement to determine fair market value is not sufficient to
demonstrate that Hahnenkamm (or any other plaintiff) is entitled to receive fair market value . . .
.”) (emphasis in original).

        The government’s argument goes too far. In essence, Hahnenkamm contends that the
Forest Service acquired Cave Rock Summit as a result of an ultra vires action, i.e., that the
government caused the Doré Group to perform an appraisal which did not reflect pertinent facts
respecting the property, using the Valuation Service Protocol it imposed on the Doré Group’s
work.3 The government principally responds to these allegations in addressing Hahnenkamm’s
contractual claim, stating:


       3
        The Valuation Service Protocol specified that the appraiser’s “sole client will be the US
Forest Service,” “the appraisal instructions and specific statement of work will be issued directly


                                                   5
       Hahnenkamm is correct that “contractual provisions made in contravention of a
       statute are void and unenforceable, and an agent acting ultra vires cannot bind the
       federal government.” California v. United States, 271 F.3d 1377, 1383 (Fed. Cir.
       2001). And “where a contract is fairly open to two constructions, by one of which
       it would be lawful and the other unlawful, the former must be adopted.” Hobbs v.
       McLean, 117 U.S. 567, 576 (1886). But as we have shown, neither the Santini-
       Burton Act nor the S[outhern Nevada Land Act] require payment of fair market
       value. So the contract agreement to pay $5.03 million—as opposed to “fair
       market value”—does not violate either statute, and our offered construction of the
       contract therefore is not unlawful.

Def.’s Reply at 9. In this regard, the government does not contend that the purchase price
reflected fair market value. See id. Neither does it argue that the Doré Group’s appraisal was
“an independent appraisal” that “determined” fair market value “on the basis of comparable sales
at the time of such requisition” as specified in the Santini-Burton Act, § 3. See Def.’s Mot. at 21
(assuming the contrary for purposes of argument); Def.’s Reply at 7-8 (arguing that the Option
Agreement “does not create any obligation for the Forest Service to evaluate the fair market
value on Hahnenkamm’s behalf”). Hahnenkamm consequently argues that the difference
between “shall pay” and “shall determine,” insofar as improved and unimproved lands under the
Santini-Burton Act are concerned, is insignificant in the circumstances for jurisdictional
purposes.

        The court concurs that the Santini-Burton Act sets out limits on the Forest Service’s
authority to acquire lands, unimproved as well as improved, and that an alleged failure or
omission, whether intentional or not, on the part of the Forest Service to adhere to those
limitations can give rise to a cause of action on the part of a landowner adversely affected by
such failure or omission. In context, the Act is susceptible to a fair inference that the remedy due
is the payment of just compensation. Hahnenkamm has alleged facts sufficient to state a money-
mandating claim under the Santini-Burton Act.

                         B. The Southern Nevada Public Land Management Act

        The government also argues that the Southern Nevada Land Act is likewise not money-
mandating. See Def.’s Mot. at 13. The Southern Nevada Land Act authorizes the Secretaries of
the Interior and Agriculture to acquire “environmentally sensitive land and interests in
environmentally sensitive land,” but further provides that “[l]ands may not be acquired under this
section without the consent of the owner thereof.” Pub. L. No. 105-263, § 5(a)(3). As to the
price at which the Secretary may acquire those lands, the Act provides that “[t]he fair market
value of land or an interest in land to be acquired by the Secretary or the Secretary of Agriculture
under this section shall be determined pursuant to section 206 of the Federal Land Policy and
Management Act of 1976 and shall be consistent with other applicable requirements and


from the Forest Service,” the appraiser’s “sole point of contact will be the Forest Service Review
Appraisers assigned to the project,” and that any requests for information “regarding the
appraisal (the process, timing, results, etc.) should be directed not to the contracted appraiser, but
to the Forest Service Reviewer.” Compl. Ex. 4 (Valuation Service Protocol), at 1.


                                                  6
standards.” Id. at § 5(c). The Federal Land Policy and Management Act, Pub. L. No. 94-579,
§ 206, 90 Stat. 2743 (1976) (“Federal Land Policy Act”) (codified as amended, in relevant part,
at 43 U.S.C. § 1716), sets out requirements for appraising land to be acquired by exchange,
which requirements, as the parties acknowledge, are expressly incorporated into the Southern
Nevada Land Act, Pub. L. No. 105-263, § 5(c). See Def.’s Mot. at 14; Pl.’s Opp’n to the Gov’t’s
Mot. to Dismiss at 17. These requirements include the requirements that, if the parties cannot
agree to accept the result of an appraisal of the land, the matter should generally be submitted to
arbitration and that rules and regulations be promulgated concerning the standards governing
appraisals conducted under the Federal Land Policy Act. See 43 U.S.C. §§ 1716(d), (f). The
Federal Land Policy Act expressly contemplates regulations “reflect[ing] nationally recognized
appraisal standards, including, to the extent appropriate, the Uniform Appraisal Standards for
Federal Land Acquisitions.” 43 U.S.C. § 1716(f)(2).

        Based on these provisions of the Federal Land Policy Act, incorporated by reference into
the relevant section of the Southern Nevada Land Act, Hahnenkamm alleges that the Southern
Nevada Land Act requires the payment of fair market value for land acquisitions, and that the
Forest Service failed to obtain an appraisal that complied with the requirements of the Acts and
failed to arbitrate the disagreement between the parties over the valuations of Cave Rock
Summit. See Compl. at ¶¶ 14-16, 22, 30-31. The Forest Service counters that neither the
Southern Nevada Land Act nor the Federal Land Policy Act require the Forest Service to pay fair
market value, but rather, fair market value must only be determined by an appraisal that follows
certain procedures. See Def.’s Mot. at 13-15; Def.’s Reply at 4-5.

        In pertinent part, Hahnenkamm alleges that the Forest Service failed to comply with the
appraisal provisions of the Southern Nevada Land Act as they incorporate the Federal Land
Policy Act. See Compl. at ¶¶ 14-16, 22, 30-31. The question, then, is whether the appraisal
provisions of the Southern Nevada Land Act can “fairly be interpreted” as mandating the
payment of compensation if, as Hahnenkamm alleges, the Forest Service failed to comply with
them. Testan, 424 U.S. at 400. Under the Tucker Act, “[i]n determining whether a law is
money-mandating, the court ‘must train on specific . . . duty-imposing statutory or regulatory
prescriptions.’” Johnson v. United States, 105 Fed. Cl. 85, 92 (2012) (quoting United States v.
Navajo Nation, 573 U.S. 488, 506 (2003)).

        The appraisal requirements of the Southern Nevada Land Act mandate a compliant
appraisal as the basis for purchase of land by the Secretaries of Interior and Agriculture.
Hahnenkamm has factually alleged that Cave Rock Summit was acquired by the Forest Service
in contravention of the appraisal provisions of the Southern Nevada Land Act. Congress, in the
Southern Nevada Land Act, required that the Forest Service in every case determine the fair
market value for the land it acquires through prescribed appraisal processes, a requirement that
serves to protect both the government and the landowners with whom the government deals. As
with the Santini-Burton Act, a failure or omission by the government to adhere to the
requirements to determine fair market value as a basis for purchase of land can constitute a
contravention of the Southern Nevada Land Act that is money-mandating in this context and thus
that suffices for jurisdictional purposes under the Tucker Act.




                                                 7
                                       C. Alleged Breach of Contract

         In ruling on the government’s motion to dismiss Hahnenkamm’s claim of alleged breach
of contract for failure to state a claim upon which relief can be granted, the court must determine
whether Hahnenkamm has sufficiently alleged the elements of a breach of contract claim,
namely: “(1) a valid contract between the parties, (2) an obligation or duty arising out of the
contract, (3) a breach of that duty, and (4) damages caused by the breach.” San Carlos Irrigation
& Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989). The validity of the
contract is not in dispute. See Compl. at ¶ 23; Def.’s Mot. at 3. The issue at this stage, rather, is
whether Hahnenkamm has sufficiently alleged an obligation incumbent upon the government, a
breach of that obligation, and that Hahnenkamm consequently was damaged. As to whether a
duty existed, the relevant inquiry is whether the Option Agreement incorporated a duty on the
part of the Forest Service to pay fair market value for Cave Rock Summit and obtain an appraisal
of that fair market value that complied with certain federal appraisal standards. If
Hahnenkamm’s pleadings sufficiently allege facts that raise a sufficiently plausible claim to
relief, then the Forest Service’s motion under RCFC 12(b)(6) must be denied.

        The Forest Service argues the Option Agreement’s price term supersedes any
requirement to pay fair market value. Def.’s Reply at 7 (“[T]he option contract did not require
the Forest Service to pay ‘fair market value’ for Cave Rock Summit. To the contrary, the parties
agreed that the ‘purchase price is $5,030,000.00’”). The Forest Service further submits that the
Option Agreement’s language pertaining to the appraisal of Cave Rock Summit does not
incorporate any appraisal provisions of the Santini-Burton Act, the Southern Nevada Land Act,
or the Uniform Appraisal Standards for Federal Land Acquisition, and that the Option
Agreement “does not create any obligation for the Forest Service to evaluate the fair market
value on Hahnenkamm’s behalf.” Id. at 7-8.

         The Forest Service’s arguments ignore the factual disputes that bear on Hahnenkamm’s
contractual claims. The court is bound to accept as true the allegations Hahnenkamm has alleged
in its complaint, and the Forest Service’s arguments isolate some portions of the Option
Agreement to the exclusion of others. Among other things, the contract specifies that “[t]he
purchase price shall be supported by an appraisal prepared in conformity with the Uniform
Appraisal Standards for Federal Land Acquisitions.” Option Agreement ¶ II.D. And, while the
contract contains an integration clause, id. ¶ XVI.C,4 it also specifies that “[a]ll representatives [
sic], warranties, obligations, and rights set forth herein shall survive the closing and not merge
with the deed, id. ¶ XVI.B.



       4
           The integration clause provides:

       All terms and conditions with respect to this offer are expressly contained herein
       and the Vendor agrees that no representative or agent of the United States has
       made any representations or promise with respect to his offer not expressly
       contained therein.

       Option Agreement ¶ XVI.C.


                                                  8
        Hahnenkamm has alleged that the Option Agreement obligates the Forest Service to
obtain an appraisal created in compliance with federal land appraisal standards and to pay fair
market value as so determined, Compl. ¶¶ 34, 36, that the Forest Service failed to satisfy this
contractual duty by failing to pay fair market value, Compl. ¶ 35 and that the Service instead
paid an amount that was reached in reliance on a flawed appraisal. Compl. ¶ 37. Finally,
Hahnenkamm has alleged that it was damaged by the Forest Service’s alleged breach of the
Option Agreement because it received less than fair market value for the sale of Cave Rock
Summit as a result of the Forest Service’s alleged breach. Compl. ¶ 35.

        In short, Hahnenkamm has alleged all of the necessary elements of a breach of contract
claim, and, accepting those allegations as true, see Twombly, 550 U.S. at 555; Cambridge, 558
F.3d at 1335, has stated a claim to relief sufficient to survive dismissal under RCFC 12(b)(6).
Thus the government’s motion to dismiss for failure to state a claim upon which relief can be
granted must be denied.

                                            CONCLUSION

       For the reasons stated above, the government’s motion to dismiss plaintiff’s complaint
pursuant to RCFC 12(b)(1) and (6) is DENIED.

        The government shall file an answer to Hahnenkamm’s complaint within the time
specified by RCFC 12(a)(4)(A)(i).

       No costs.

       IT IS SO ORDERED.



                                                    s/ Charles F. Lettow
                                                    Charles F. Lettow
                                                    Judge




                                                9
