       In the United States Court of Federal Claims
                                      No. 19-1331L

                             (E-Filed: July 16, 2020)
______________________________________
                                              )
BENCH CREEK RANCH, LLC, and                   )
PAUL PLOUVIEZ,                                )
                                              )      Motion to Dismiss; RCFC
                 Plaintiffs,                  )      12(b)(1); Lack of Subject
                                              )      Matter Jurisdiction; Claims
 v.                                           )      Sounding in Tort.
                                              )
THE UNITED STATES,                            )
                                              )
                 Defendant.                   )
_______________________________________ )

A. Blair Dunn, Albuquerque, NM, for plaintiff.

Kristine S. Tardiff, with whom were Jean E. Williams, Deputy Assistant Attorney
General and Prerak Shah, Acting Deputy Assistant Attorney General, Environment &
Natural Resources Division, Natural Resources Section, United States Department of
Justice, Washington, DC, for defendant. Nancy Zahedi, United States Department of the
Interior, Sacramento, CA, of counsel.

                                        OPINION

CAMPBELL-SMITH, J.

      On December 6, 2019, defendant filed a motion to dismiss plaintiffs’ complaint
pursuant to Rule 12(b)(1) and (6) of the Rules of the United States Court of Federal
Claims (RCFC), or in the alternative, for summary judgment thereon, pursuant to RCFC
56. See ECF No. 9. Plaintiffs filed a response on February 3, 2020, see ECF No. 12; and
defendant filed a reply on February 18, 2020, see ECF No. 13. In ruling on defendant’s
motion, the court also considered the supplemental briefs filed by the parties, including:
(1) plaintiffs’ supplemental brief, 1 ECF No. 16; (2) defendant’s response, ECF No. 17;
(3) defendant’s supplemental brief, 2 ECF No. 22; and (4) plaintiffs’ response, ECF No.
23. For the following reasons, defendant’s motion to dismiss for lack of jurisdiction is
GRANTED.

I.     Background

        Plaintiff Paul Plouviez is the owner of plaintiff Bench Creek Ranch, LLC, located
in Washoe County, Nevada. See ECF No. 1 at 2. On the first page of their complaint,
plaintiffs explain the theory of their case as follows:

       Defendant, by and through its agencies and employees, has severely
       impacted Plaintiffs with its management of wild horses on their property
       inversely condemning the compensable property interest in the
       improvements, water rights and forage. The failure of the Bureau of Land
       Management (“BLM”) to manage the wild horse population and the
       knowingly notorious usage of Plaintiffs[’] water for the government’s horses
       directly correlates to the act of creating and maintaining a nuisance for the
       intentional purpose of physically depriving Plaintiffs of their private property
       rights.

Id. at 1. Plaintiffs allege that this court has jurisdiction over their claims pursuant to the
Tucker Act, 28 U.S.C. § 1491 (2012), and the Declaratory Judgment Act, 28 U.S.C §
2201 (2012). See id. at 2.

        Plaintiffs contend that since the time of the Draw Fire, a wild fire that occurred on
July 8, 2017, approximately 500 wild horses “had been counted on Plaintiffs’ [Bureau of
Land Management (BLM)] permit.” Id. at 3. The wild horses “have been destroying
Bench Creek Ranch, LLC’s forage, and have also been appropriating drinking water from
1
        Plaintiffs offer the Federal Circuit’s decision in Taylor v. United States, 959 F.3d 1081
(Fed. Cir. 2020), as supplemental authority that, they argue, “controverts [defendant’s] primary
argument . . . that this Court lacks subject matter jurisdiction because the Government’s actions
that resulted in a taking sounded in tort.” ECF No. 16 at 1. The facts in Taylor, however, are
inapposite to this case because Taylor involves alleged affirmative acts by government officials,
while this case involves an alleged failure to act. See Taylor, 959 F.3d at 1085 (describing the
complaint as alleging that government personnel “led [a contracting party] to terminate the
contract” with plaintiffs).
2
        Defendant offers this court’s decision in L & W Construction LLC v. United States, No.
19-1628L, 2020 WL 2847079 (Fed. Cl. May 28, 2020), as supplemental authority. See ECF No.
22. The court considered the opinion, and, although L & W Construction is not binding
authority, the court reaches a similar conclusion in this case.


                                                2
Plaintiffs’ vested water rights.” Id. Plaintiffs claim that a “limited horse population has a
grazing right on Plaintiffs’ permit, but no water right.” Id.

       According to plaintiffs, the “horses and burros infesting Bench Creek Ranch are
wards of the U.S. Government.” Id. at 4. Plaintiff contacted the BLM’s Carson City
District Office to report the horses one year after the fire, on July 9, 2018. See id. at 2-3.
On August 9, 2018, plaintiffs sent invoices to BLM for the cost of the water consumed by
the horses through August 8, 2018, at a rate of $2 per horse per day, plus a finance
charge, for a total of $397,440. See ECF No. 1-1.

        The BLM acknowledged plaintiffs’ correspondence in a letter dated December 21,
2018. See ECF No. 1-2. In the letter, the BLM expressed sympathy for any difficulty
caused by the wild horses that had apparently been displaced by the Draw Fire, but
denied plaintiffs’ request for compensation. See id. Any water consumed by the wild
horses, the BLM explained, was allowed under Nevada state law “requiring water rights
holders to allow wildlife to access surface water sources that they customarily use.” Id.
(citing NEV. REV. STAT. § 533.367). It continued:

        The horses in question are located within the Clan Alpine [Herd Management
        Area (HMA)] and would customarily use any accessible surface waters
        located within the HMA. The status of the wild horses as wildlife and
        Nevada water law provisions protecting wildlife access to water does not
        support your request that the Federal Government provide you with financial
        compensation for wild horse consumption of water.

Id. at 2.

       Plaintiffs deny that the wild horses are classified as “wildlife” under Nevada state
law. See ECF No. 1 at 4. And although they admit that Nevada state law “does in fact
require water for wildlife when any application for appropriation of surface water is
approved by the Nevada State Engineer in accordance with Nevada Water Law first
established in 1905,” plaintiffs claim that “Bench Creek Ranch, LLC’s water rights are
pre-statutory vested water rights and are not subject to this current day provision for
water dedicated to wildlife as beneficial use.” Id.

        Plaintiffs allege one count in the complaint, titled “Violation of the Fifth
Amendment, Taking of Property without Just Compensation.” Id. Therein, plaintiffs
contend that the “BLM’s failure to manage the wild horses occupying Plaintiffs[’] lands
has effectuated a taking of their property.” Id. As of the date on which the complaint
was filed, August 30, 2019, plaintiffs calculate damages of $808,419.30, but also assert
that “[t]his amount continues to grow as the BLM refuses to remove the wild horses or to


                                              3
provide their own source of water to the horses.” Id. at 5. Plaintiffs seek both monetary
and declaratory relief. See id. at 6.

        Defendant now moves to dismiss the complaint, for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be granted. See ECF
No. 9 at 8. Alternatively, defendant moves for summary judgment. See id.

II.    Legal Standards

        Pursuant to the Tucker Act, the court has jurisdiction to consider “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) (2012). To invoke the court’s jurisdiction, plaintiffs must
show that their claims are based upon the Constitution, a statute, or a regulation that “can
fairly be interpreted as mandating compensation by the Federal Government for the
damages sustained.” United States v. Mitchell, 463 U.S. 206, 216-17 (1983) (quoting
United States v. Testan, 424 U.S. 392, 400 (1976)). See also Fisher v. United States, 402
F.3d 1167, 1172 (Fed. Cir. 2005) (stating that to fall within the scope of the Tucker Act
“a plaintiff must identify a separate source of substantive law that creates the right to
money damages”) (citations omitted).

       The Fifth Amendment to the Constitution of the United States provides that the
federal government may not appropriate private property “for public use, without just
compensation.” U.S. Const. amend. V. As such, takings claims for just compensation
meet this jurisdictional criteria. “When the Government takes property but fails to
compensate the owner, the Tucker Act provides jurisdiction to enforce the owner’s
compensatory right.” Mildenberger v. United States, 643 F.3d 938, 944-45 (Fed. Cir.
2011) (citing Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000)); Jan’s
Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1309 (Fed. Cir. 2008) (“It
is undisputed that the Takings Clause of the Fifth Amendment is a money-mandating
source for purposes of Tucker Act jurisdiction.”).

        Plaintiffs bear the burden of establishing this court’s subject matter jurisdiction by
a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988). In reviewing plaintiffs’ allegations in support of
jurisdiction, the court must presume all undisputed facts are true and construe all
reasonable inferences in plaintiffs’ favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982);
Reynolds, 846 F.2d at 747 (citations omitted). If, however, a motion to dismiss
“challenges the truth of the jurisdictional facts alleged in the complaint, the . . . court may


                                               4
consider relevant evidence in order to resolve the factual dispute.” Id. at 747. If the court
determines that it lacks subject matter jurisdiction, it must dismiss the complaint. See
RCFC 12(h)(3).

III.   Analysis

        In its motion, defendant argues that this court lacks jurisdiction to consider: “(1)
any claim premised on a nuisance theory or on BLM’s failure to act, both of which sound
in tort; (2) any claim seeking relief under the Declaratory Judgment Act[;] and (3) any
claim seeking relief under the Administrative Procedure Act.” ECF No. 9 at 10. The
court agrees.

       A.     Claims Made Pursuant to the Declaratory Judgment Act and the
              Administrative Procedure Act

        As an initial matter, plaintiffs explain in their response, that references to the
Declaratory Judgment Act and the Administrative Procedures Act in the complaint
resulted from “inartful pleading,” and insist that they intend to rely only on the court’s
authority under the Tucker Act. See ECF No. 12 at 17-18, 19. On the basis of these
representations, the court understands plaintiffs to have abandoned their claims to relief
under the Declaratory Judgment Act and the Administrative Procedure Act. This is a
wise decision on plaintiffs’ part, as the court lacks jurisdiction to consider claims under
either statute. See United States v. King, 395 U.S. 1, 5 (1969) (holding that the
Declaratory Judgment Act does not vest the Court of Claims with the authority to issue
declaratory relief); Nat’l Air Traffic Controllers Ass’n v. United States, 160 F.3d 714,
716-17 (Fed. Cir. 1998) (stating that the Declaratory Judgment Act is not applicable to
this court). See also Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997)
(holding that this court “lacks the general federal question jurisdiction of the district
courts, which would allow it to review the agency’s actions and to grant relief pursuant to
the Administrative Procedure Act”).

      Accordingly, defendant’s motion to dismiss any claims in the complaint made
pursuant to the Declaratory Judgment Act or the Administrative Procedure Act is
GRANTED.

       B.     Claims Sounding in Tort

       The Tucker Act expressly excludes jurisdiction over tort claims from this court’s
authority. See 28 U.S.C. § 1491(a)(1) (defining the scope of this court’s jurisdiction to
include certain cases “not sounding in tort”). In their complaint, plaintiffs allege that the
BLM’s failure “to manage the wild horse population and knowingly notorious usage of


                                              5
Plaintiffs[’] water for the government’s horses directly correlates to the act of creating
and maintaining a nuisance for the intentional purpose of physically depriving Plaintiffs
of their private property rights.” ECF No. 1 at 1. This assertion implies two theories of
liability, both of which sound in tort.

        First, this court lacks jurisdiction to consider any claim that defendant has created
or maintained a nuisance. Nuisance claims sound in tort, and as such, fall expressly
outside this court’s statutory grant of authority. See, e.g., Commonwealth Edison Co. v.
United States, 271 F.3d 1327, 1353 (Fed. Cir. 2001) (noting that nuisance claims sound
in tort); Avery v. United States, 330 F.2d 640, 644 (Ct. Cl. 1964) (holding that the United
States Court of Claims jurisdiction did “not extend to claims for damages from [nuisance]
or trespass sounding in tort”); Nw. La. Fish & Game Pres. Comm’n v. United States, 79
Fed. Cl. 400, 406 (2007) (“This court has no jurisdiction over the plaintiff’s claims
regarding a continuing trespass or continuing nuisance. These claims sound in tort, and
tort claims are expressly excluded from this court’s jurisdiction under the Tucker Act.”).

       In addition, this court lacks jurisdiction over claims that defendant failed to
properly manage the wild horses on plaintiffs’ property. The United States Court of
Appeals for the Federal Circuit has held, in no uncertain terms, that the government’s
inaction cannot form the basis of a takings claim—such a claim sounds in tort. In St.
Bernard Parish Government v. United States, 887 F.3d 1354 (2018), the Federal Circuit
rejected the plaintiff’s takings claim for flood damage because it was based on the
government’s failure to maintain or modify the banks of a channel. It explained, in
relevant part, as follows:

       While the theory that the government failed to maintain or modify a
       government-constructed project may state a tort claim, it does not state a
       takings claim. A property loss compensable as a taking only results when
       the asserted invasion is the direct, natural, or probable result of authorized
       government action. On a takings theory, the government cannot be liable for
       failure to act, but only for affirmative acts by the government. The
       government’s liability for a taking does not turn, as it would in tort, on its
       level of care. Instead, a takings liability arises from an authorized activity.
       In both physical takings and regulatory takings, government liability has
       uniformly been based on affirmative acts by the government or its agent.

Id. at 1360-61 (citations and quotations omitted).

        Plaintiffs’ claims, beyond their claims that defendant has created a nuisance, are
clearly based on what they contend was defendant’s failure to act. Specifically, plaintiffs
allege that the “BLM’s failure to manage the wild horses occupying Plaintiffs[’] lands


                                             6
has effectuated a taking of their property,” and that the damages continue to mount
because “the BLM refuses to remove the wild horses or to provide their own source of
water to the horses.” ECF No. 1 at 4-5. Although plaintiffs repeatedly characterize the
BLM’s “failure” and “refusal” as “actions,” see id., the substantive allegations in the
complaint address only the BLM’s inaction. 3 As such, pursuant to Federal Circuit
authority, plaintiffs claim sounds in tort, not as a taking.

        Plaintiffs’ characterization of the BLM’s behavior is not controlling in this court’s
jurisdictional analysis. “Regardless of the characterization of the case ascribed by
[plaintiff] in its complaint, we look to the true nature of the action in determining the
existence or not of jurisdiction.” Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994).
Here, plaintiffs have alleged, in substance, a tort claim for damages caused by
defendant’s failure to act. And as explained above, this court lacks the authority to
consider claims sounding in tort.

      Accordingly, this court lacks jurisdiction over plaintiffs’ claims sounding in tort,
and defendant’s motion to dismiss such claims is GRANTED.

IV.    Conclusion

       The court has carefully reviewed the complaint, and can discern no claims that
survive defendant’s motion to dismiss for lack of jurisdiction pursuant to RCFC 12(b)(1).
Accordingly,

       (1)     Defendant’s motion to dismiss, ECF No. 9, is GRANTED; and

       (2)     The clerk’s office is directed to ENTER final judgment in favor of
               defendant, and DISMISS plaintiffs’ complaint in its entirety, without
               prejudice.

3
         As alleged by plaintiffs, the only affirmative actions taken in this case, other than those
taken by plaintiffs themselves, are the actions of the wild horses. Plaintiffs seem to acknowledge
in their response that any actions taken by the wild horses were not actions that are attributable to
the government. See ECF No. 12 at 22. But any suggestion that the horses were, in effect,
government agents because BLM failed to stop them from drinking plaintiffs’ water has been
rejected by the Federal Circuit on multiple occasions. See, e.g., Colvin Cattle Co., Inc. v. United
States, 468 F.3d 803, 809 (Fed. Cir. 2006) (holding that “because wild horses are outside the
government’s control, they cannot constitute an instrumentality of the government capable of
giving rise to a taking”); Fallini v. United States, 56 F.3d 1378, 1383 (Fed. Cir. 1995) (holding
that wild horses that consumed water on the plaintiffs property “are not agents of the Department
of the Interior,” and that “[w]hat the [plaintiffs] may challenge is what the government has done,
not what the horses have done”).


                                                 7
IT IS SO ORDERED.

                        s/Patricia E. Campbell-Smith
                        PATRICIA E. CAMPBELL-SMITH
                        Judge




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