Case: 19-1836    Document: 70    Page: 1   Filed: 04/23/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                MARY SWARTZLANDER,
                   Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2019-1836
                 ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:15-cv-01567-MCW, Senior Judge Mary Ellen Cos-
 ter Williams.
                  ______________________

                 Decided: April 23, 2020
                 ______________________

    MARIANNE G. DUGAN, Marianne Dugan, P.C., Eugene,
 OR, for plaintiff-appellant.

     TAMARA N. ROUNTREE, Environment and Natural Re-
 sources Division, United States Department of Justice,
 Washington, DC, for defendant-appellee. Also represented
 by JEFFREY B. CLARK, ERIC GRANT.
                 ______________________
Case: 19-1836      Document: 70    Page: 2   Filed: 04/23/2020




 2                            SWARTZLANDER   v. UNITED STATES




         Before PROST, Chief Judge, CLEVENGER and DYK,
                         Circuit Judges.
 PROST, Chief Judge.
     Mary Swartzlander appeals from the decision of the
 United States Court of Federal Claims dismissing her tak-
 ings claim as timed-barred under 28 U.S.C. § 2501. See
 Swartzlander v. U.S., 142 Fed. Cl. 435 (2019) (“Decision”).
 We affirm.
                               I
     Ms. Swartzlander owned property running along a
 creek across from a wetland restoration project conducted
 by the Bonneville Power Administration. The Bonneville
 Power Administration is part of the U.S. Department of
 Energy. The restoration project started in 2001 and con-
 cluded in 2005.
     In 2015, Ms. Swartzlander filed a takings claim with
 the Court of Federal Claims alleging that the wetland res-
 toration project caused erosion on her land. 1 The govern-
 ment, arguing that Ms. Swartzlander’s claim was time-
 barred, moved to dismiss the claim. 2 The court conducted
 a four-day evidentiary hearing to consider the govern-
 ment’s motion.
     After holding the evidentiary hearing, the court con-
 cluded that Ms. Swartzlander knew or should have known
 that the wetland restoration project caused permanent


     1    The government does not concede that the restora-
 tion project caused erosion on Ms. Swartzlander’s property,
 but for the purpose of this appeal, it has assumed that fact
 in Ms. Swartzlander’s favor. See Appellee’s Br. 10 n.3.
     2    Claims brought before the Court of Federal Claims
 must be “filed within six years after such claim first ac-
 crues.” 28 U.S.C. § 2501.
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 SWARTZLANDER   v. UNITED STATES                                3



 erosion on her property at least as early as 2006. See Deci-
 sion, 142 Fed. Cl. at 444–46. Applying the “stabilization
 doctrine,” the court determined that Ms. Swartzlander’s
 claim accrued at least as early as that date. Id. at 445–46.
 Ultimately, because Ms. Swartzlander waited until 2015—
 more than six years from 2006—to bring her takings claim,
 the court dismissed the claim as time-barred. Id.
    Following the dismissal, Ms. Swartzlander appealed.
 We have jurisdiction under 28 U.S.C. § 1295(a)(3).
                              II
     We review the Court of Federal Claims’ decision to dis-
 miss de novo, while we review its jurisdictional findings of
 fact for clear error. Banks v. United States, 314 F.3d 1304,
 1307–08 (Fed. Cir. 2003).
      When a taking occurs through a gradual physical pro-
 cess, such as erosion, the stabilization doctrine guides the
 determination of a claim’s accrual date. Under the stabili-
 zation doctrine, a claim accrues “when the environmental
 forces have substantially and permanently invaded the pri-
 vate property such that the permanent nature of the taking
 is evident and the extent of the damage is reasonably fore-
 seeable.” Boling v. United States, 220 F.3d 1365, 1371
 (Fed. Cir. 2000) (internal quotation marks omitted). While
 “[t]he point at which the erosion damage transitions from
 ‘mere inches’ to substantial encroachment is not amenable
 to precise definition” we have noted that “the key issue” in
 determining when a claim accrues “is whether the perma-
 nent nature of the taking was evident such that the land
 owner should have known that the land had suffered ero-
 sion damage.” Id. at 1373. Accordingly, “[t]he obligation
 to sue arises once the permanent nature of the Government
 action is evident, regardless of whether damages are com-
 plete and fully calculable.” Mildenberger v. United States,
 643 F.3d 938, 946 (Fed. Cir. 2011).
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 4                            SWARTZLANDER    v. UNITED STATES



     If the landowner can show either that the government
 “concealed its acts with the result that plaintiff was una-
 ware of their existence” or that the injury “was ‘inherently
 unknowable’ at the accrual date,” a landowner’s claim may
 be temporarily suspended until the landowner becomes
 aware of the injury. Banks v. United States, 741 F.3d 1268,
 1279–80 (Fed. Cir. 2014) (quoting Young v. United States,
 529 F.3d 1380, 1384 (Fed. Cir. 2008)).
                               A
     On appeal, Ms. Swartzlander contends that “where a
 government entity sets in motion a process of gradual ero-
 sion, that then is dramatically worsened by natural pro-
 cesses—the claim does not accrue (and therefore the
 limitations clock does not stark ticking) until the dramatic
 effect is clear to the plaintiff.” Appellant’s Reply Br. 3. Put
 another way, Ms. Swartzlander argues that, notwithstand-
 ing that she was aware that the wetland restoration project
 caused erosion to her property, id. at 1, her claim did not
 start accruing until the naturally-occurring high-water
 event of 2012, which dramatically worsened the erosion on
 her property.
     Ms. Swartzlander’s argument, however, is contrary to
 our case law. As noted above, the key issue for determining
 when a claim accrues is when the landowner becomes
 aware of the permanent nature of the taking. The Court of
 Federal Claims, relying on exhibits and trial transcript,
 made the factual determination that Ms. Swartzlander
 knew or should have known of the permanent nature of the
 erosion at least as early as 2006. See Decision, 142 Fed. Cl.
 at 444–46. Based on the record before us, Ms. Swartz-
 lander has not persuasively demonstrated that the court’s
 fact finding was clearly erroneous.
     In addition, this is not a case where the accrual of the
 claim was suspended. First, this is not a case where in
 2006—the time of the accrual date—the erosion was only
 mere inches. Compare Boling, 220 F.3d at 1372–73 (noting
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 SWARTZLANDER   v. UNITED STATES                             5



 it is “virtually impossible for the landowner to discern that
 land had been taken when the degree of encroachment was
 only ‘mere inches’”) with Appellant’s Reply Br. 1 (noting
 that, as of 2006, there was “about 15 to 30 feet” of erosion”
 to Ms. Swartzlander’s property). Second, this is also not a
 case where the government’s mitigation efforts to counter
 the erosion to landowner’s property concealed the erosion’s
 permanent nature. Compare Banks, 741 F.3d at 1282 (not-
 ing that “the Government’s mitigation efforts . . . delayed
 when Appellants knew or should have known they had a
 claim”) with Appellant’s Reply Br. 3 (noting that, by 2006,
 the government would not “work with her”). Accordingly,
 the Court of Federal Claims did not err when it found that
 the claim should not be suspended.
                              IV
    We have considered Ms. Swartzlander’s other argu-
 ments and find them unpersuasive. For the foregoing rea-
 sons, we affirm the Court of Federal Claims’ holding that
 Ms. Swartzlander’s takings claim is time-barred.
                        AFFIRMED
