            In the United States Court of Federal Claims
                                    No. 11-439 L

                              (Filed December 4, 2015)

  ROBERT A. LUCIANO, JR.,      )
  Trustee of the Robert A. Luciano
                               )
  Jr. Revocable Trust Dated February
                               ) Jurisdiction; Taking; Accrual                   of
  27, 1995,                    ) Claim; Statute of Limitations
                           Plaintiff,
                               )
               v.              )
                               )
  THE UNITED STATES,           )
                    Defendant. )


      Richard H. Hart, Jr., Tahoe City, CA, for plaintiff.

     William J. Shapiro, Environment and Natural Resources Div., Natural
Resources Section, United States Department of Justice, Sacramento, CA, with
whom appeared John C. Cruden, Assistant Attorney General for defendant. Emily
M. Meeker, Sacramento, CA, of counsel.

                                     OPINION

Merow, Senior Judge

       On July 5, 2011, plaintiff filed a complaint alleging that the defendant had
exacted takings of his water rights and property adjacent to the Plumas National
Forest, in Plumas County, California. See Doc. 1. This court previously granted
summary judgment in favor of the defendant on the water rights claim, ruling that
plaintiff’s claim was unripe. See Doc. 72.

       On September 18, 2015, the defendant filed a motion for summary judgment
on the remaining property claim, asserting that plaintiff lacks standing to bring the
claim and that, in any event, the claim is barred by the applicable six-year statute of
limitations. See Doc. 107 at 1-2.
I.    RELEVANT FACTS

       This dispute involves a parcel of land in Plumas County that plaintiff
purchased in 1995. See Doc. 1 at 7, ¶ 23. The land was part of a homestead granted
to Mr. Ezra Culver in 1882. See id. at 4, ¶ 11. Plaintiff claims that he purchased the
property with the belief that the boundaries of the original homestead were consistent
with what appeared in his deed. See id. at 7, ¶ 23. The government claims that the
original boundaries of the homestead are irrelevant because it resurveyed the
property in 1993, and the boundary lines established by that survey establish the
legal boundaries of plaintiff’s property. See Doc. 107 at 20.

       The 1993 survey was filed with the recorder’s office on March 5, 1993, and
appears in Book 9 at page 107. See Doc. 107-1 at 21 (Exhibit 2). The evidence
further establishes that plaintiff’s deed incorporated the 1993 survey by reference.
Plaintiff’s deed is dated September 18, 1995. See Doc. 107-2 at 10 (Exhibit 9). The
subject property is described by specific reference to a recorded map titled
“‘Mohawk Valley Properties Unit No. 2, Phase one,’ filed May 24, 1995.” See id.
at 11. In describing the boundaries of the property, the map cites the 1993 survey,
referencing the relevant book and page numbers. See Doc. 107-2 at 15 (Exhibit 10).

      Although the exact date is not clear, at some point following the survey, the
defendant erected a fence marking the boundary line, which bisected a cabin that
was allegedly part of the original Culver homestead. See Doc. 107 at 11-12. A
second structure, a root cellar, was located entirely on the defendant’s side of the
boundary line. See id.

      On January 13, 2000, Plaintiff sent a letter to the defendant in which he
acknowledged the 1993 survey and the boundary line dispute. See Doc. 107-1 at 53
(Exhibit 7). He wrote: “A relatively recent survey (9RS107 dated March 5, 1993)
regarding delineating the section lines and establishing the forest service boundary
set the North line of the F/S boundary (South line of lot 2) bisecting the old
homestead house (see photo below—from the SE corner of lot 2 looking west along
the P/L)[sic].” Id.

        This letter marked the beginning of years of correspondence between the
parties. Plaintiff claims that the defendant entered into an agreement with him to
resolve the boundary line dispute by letter dated June 22, 2004. See Doc. 109 at 27.
In its entirety, the June 22, 2004 letter from Mr. James M. Peña reads as follows:



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      This letter is in response to your April 5, 2004 letter and recent inquiry
      with our Regional Office in Vallejo, California regarding the resolution
      of the encroachment.

      The workload for this year has been established and we are unable to
      start on any new projects. I have directed my staff to include your
      proposal to resolve your encroachment in our program of work for the
      ensuing years.

      We look forward to resolving the encroachment. Please contact Fred
      Krueger, Public Service Staff Officer, 530-283-7840 if you have any
      questions.

Doc. 110-2 at 2 (Exhibit 10).

        Plaintiff then claims that the defendant refused to abide by that agreement by
letter dated March 1, 2010. See Doc. 109 at 27. In that letter, Ms. Alice B. Carlton
wrote, in part:

      After considering your land exchange proposal . . ., I have determined
      it is not in the best interest of the public for the Forest Service to enter
      into this land exchange. . . . This decision affirms a previous denial of
      this proposal, issued to you by Acting Forest Supervisor Chris Knopp,
      on April 24th, 2007. In addition, the Forest denied your similar requests
      for exchanges of other privately held parcels in 2000 and 2004. Please
      understand the Forest has no interest in conveying the 40 acre parcel
      adjacent to your property.

Doc. 107-3 at 17 (Exhibit 20).

II.   ANALYSIS

      Plaintiff’s claim is subject to a six-year statute of limitations, as set forth in
28 U.S.C. § 2501, which states: “Every claim of which the United States Court of
Federal Claims has jurisdiction shall be barred unless the petition thereon is filed
within six years after such claim first accrues.” This limitation is jurisdictional in
nature, and if plaintiff fails to file a claim within six years, this court is without
authority to consider it. See John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 133-136 (2008).


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       A claim against the government, “including takings claims, ‘first accrues’
‘only when all the events which fix the government’s alleged liability have occurred
and the plaintiff was or should have been aware of their existence.’” Casitas Mun.
Water Dist. v. United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013) (citing Hopland
Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)); see
also Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009) (stating that “a
claim alleging a Fifth Amendment taking accrues when the act that constitutes the
taking occurs”).

      Plaintiff asserts that any claim he had was “unknowable” before he became
aware of the fence bisecting the cabin in the winter of 2000. See Doc. 109 at 25.
And in fact, plaintiff argues that his claim did not accrue until 2010, when the
defendant supposedly breached its alleged agreement to resolve the boundary
dispute. See id. at 23.

       As an initial matter, Mr. Peña’s letter does not constitute a binding agreement.
The only part of the letter that the court can imagine plaintiff means to suggest is an
agreement is the statement: “We look forward to resolving the encroachment.” See
Doc. 110-2 at 2 (Exhibit 10). It is axiomatic that a contract with the government
requires “‘mutual intent to contract including an offer and acceptance, consideration,
and a Government representative who had actual authority to bind the
Government.’” La Van v. United States, 382 F.3d 1340, 1346 (Fed. Cir. 2004)
(quoting Cal. Fed. Bank v. United States, 245 F.3d 1342, 1346 (Fed. Cir. 2001)).
Mr. Peña’s cordial expression of a willingness to resolve the disagreement does not
establish any of these elements. Quite to the contrary, the letter otherwise makes
clear that Mr. Peña’s office has not begun consideration of, much less accepted or
agreed to, plaintiff’s proposal.

       And Ms. Carlton’s letter dated March 1, 2010, states in no uncertain terms
that the defendant had rejected plaintiff’s proposals on several earlier occasions.
Even if Mr. Peña’s letter had given plaintiff a justifiable reason to delay filing a
complaint, plaintiff offers no particular reason why the 2000, 2004 or 2007 rejections
did not trigger accrual.

        Furthermore, it is unlikely that plaintiff would not be charged with knowledge
of the survey in 1995, as it was incorporated into his deed to the property. But even
assuming plaintiff’s theory is correct, that his claim accrued no earlier than when he
first learned of the boundary problem in 2000, the complaint he filed in 2011 was
long outside the statutory period.


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      Plaintiff contends that even if his claim accrued in 2000 his complaint was
timely pursuant to what he calls the “accrual suspension doctrine,” applied by the
Federal Circuit in Applegate v. United States, 25 F.3d 1579 (Fed. Cir. 1994). See
Doc. 109 at 26-28. The plaintiffs in Applegate claimed a taking related to beach
erosion caused by a government harbor construction project. See 25 F.3d at 1580.
The court held that the accrual of plaintiffs’ claims was delayed “due to both the
very gradual nature of this particular continuous physical process and the Corps’
promises” to mitigate the damage. Id. at 1583. This case involves neither a gradual
physical process, nor a series of promises to mitigate damage. As such, the principle
of Applegate has no application here.

       Plaintiff’s complaint, therefore, was filed more than five years beyond the
statutory period.

III.   CONCLUSION

       Because plaintiff’s complaint was filed out of time, this court has no
jurisdiction to consider his claims. The defendant’s motion for summary judgment
is, hereby, GRANTED. Plaintiff’s complaint is DISMISSED. The clerk of court
is directed to enter judgment accordingly.


                                              s/ James F. Merow
                                              James F. Merow
                                              Senior Judge




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