         In the United States Court of Federal Claims
                                        No. 16-709L

                                 (E-Filed: January 26, 2018)

                                            )
BASSETT, NEW MEXICO LLC,                    )
                                            )
                    Plaintiff,              )     Takings; Claim Alleging Denial of
                                            )     Access to Real Property; RCFC
v.                                          )     12(b)(1); Claim Not Ripe Where No
                                            )     Application for Right-of-Way
THE UNITED STATES,                          )     Completed.
                                            )
                    Defendant.              )
                                            )

Roger J. Marzulla, Washington, DC, for plaintiff. Nancie G. Marzulla, Washington, DC,
of counsel.

Laura Duncan, with whom was Jeffrey H. Wood, Acting Assistant Attorney General,
Environment & Natural Resources Division, United States Department of Justice,
Washington, DC, for defendant.

                                          OPINION

CAMPBELL-SMITH, Judge.

       The court has before it defendant’s motion to dismiss, ECF No. 19, which is
brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court
of Federal Claims (RCFC). This motion has been fully briefed, along with a notice of
supplemental authority filed by defendant, ECF No. 26, and plaintiff’s response thereto,
ECF No. 27. Oral argument was neither requested by the parties nor deemed necessary
by the court.

      The subject of plaintiff’s takings claim is approximately 66 acres of unimproved
land which is alleged to be “surrounded by federal land.” Am. Compl., ECF No. 16 at 1-
2. The complaint further alleges that the United States Bureau of Land Management
(BLM) has denied plaintiff all access to its property. Id. at 5. For the reasons stated
below, defendant’s motion to dismiss pursuant to RCFC 12(b)(1) is GRANTED.
I.     Factual Background1

       Plaintiff’s parcel is located in Doña Ana County, New Mexico. ECF No. 16 at 1.
At the time of purchase in 1994, access to the parcel existed along a road “that crossed
federal, state and private lands.” Id. at 3. Plaintiff refers to this road as the “cherry-stem”
road, which connects plaintiff’s parcel, itself surrounded by federal land, along a “right-
of-way” that crosses, first, federal land, then state land, then private land, to reach a
public road. Id. at 3-4.

       In 1998, the owners of the private land at the end of the cherry-stem road blocked
access along this road by locking their gates. Id. at 4. Plaintiff then turned to the State of
New Mexico (State) for permission to branch off the cherry-stem road, to traverse state
land, and to reach the public road by avoiding the private property and its locked gates.
Id. The State twice denied plaintiff’s requests, once in February 1998 and again in April
1998. Id.

        In 2012, plaintiff began to plan for development of its parcel into a “high-end
residential community.” Id. at 5. To gain access to a public highway over BLM land,
plaintiff “learned that the process involved making an application for right-of-way to the
Albuquerque regional” BLM office. Id. On March 26, 2014, plaintiff filed such an
application with BLM. Id. at 6. Plaintiff later asked for more time “to complete this
application,” and for permission to enter BLM land to survey the proposed right-of-way.
ECF No. 16-2 at 2. On May 14, 2014, BLM granted plaintiff’s request for more time and
for permission to survey the proposed right-of-way. ECF No. 16-4 at 2. BLM also noted
that plaintiff would have a “higher possibility” of receiving a right-of-way along the
“existing” cherry-stem road than along the alternative route proposed by plaintiff in 2014.
Id.

       Plaintiff never completed its BLM right-of-way application. See ECF No. 16 at
8-9 (noting that “completing an application” would have cost “tens of thousands of
dollars”). Instead, this suit was filed on June 17, 2016. In the interim period of time, the
federal land surrounding plaintiff’s parcel was declared a national monument, the Organ
Mountains-Desert Peaks National Monument (National Monument). ECF No. 16 at 7.
The court reserves -- for the analysis section of this opinion -- its review of the other
relevant facts alleged in the amended complaint.



1
        All document references and page citations are to the electronic record preserved
in the court’s Case Management/Electronic Case Files (CM/ECF) system. The exhibits
to the Amended Complaint, ECF No. 16, are filed under ECF Nos. 16-1 through 16-7.
The exhibits to plaintiff’s opposition brief, ECF No. 24, are filed under ECF Nos. 24-1
through 24-3.


                                              2
II.    Standard of Review for Motions Brought Under RCFC 12(b)(1)

       When reviewing a complaint to determine its jurisdiction over a plaintiff’s claims,
this court must presume all undisputed factual allegations to be true and construe all
reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982);
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citations
omitted). However, “[a] trial court may weigh relevant evidence when it considers a
motion to dismiss that challenges the truth of jurisdictional facts alleged in a complaint.”
Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003) (citations omitted).
Plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc.
v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and it must do so by a
preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If
jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3).

III.   Analysis

        The court has considered all of the parties’ arguments about the takings claim
presented in the amended complaint. Rather than address each dispute as it is presented
in the parties’ briefs, the court conducts its own analysis of the amended complaint.

        The threshold issue for the court is whether plaintiff’s claim is for a physical
taking, rather than a regulatory taking. The next issue is whether plaintiff’s takings claim
is ripe. In its analysis of these issues, the court relies almost exclusively on binding
precedent provided by decisions of the United States Supreme Court, the United States
Court of Claims and the United States Court of Appeals for the Federal Circuit.2

       A.     Are All Denial of Access Takings Claims Physical Takings?

        Plaintiff argues that takings claims based on the denial of access to real property
are necessarily physical (also known as per se) takings, not regulatory takings, and
insists: “When the Government denies all access to private land, whether by physical
obstruction or by statute or regulation, the cases uniformly hold this to be a per se or
physical taking.” Pl.’s Opp., ECF No. 24 at 7 (citations omitted). The court, however,
cannot agree.



2
       Decisions of the United States Court of Federal Claims do not bind the court in
this matter. See, e.g., W. Coast Gen. Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994)
(“Court of Federal Claims decisions, while persuasive, do not set binding precedent for
separate and distinct cases in that court.”).


                                              3
        The court has considered each of the following cases specifically referenced by
plaintiff in support of its broad statement that all denial of access takings claims are
physical takings claims: Armijo v. United States, 663 F.2d 90 (Ct. Cl. 1981); Laney v.
United States, 661 F.2d 145 (Ct. Cl. 1981); Foster v. United States, 607 F.2d 943 (Ct. Cl.
1979); Bydlon v. United States, 175 F. Supp. 891 (Ct. Cl. 1959). But none of these
opinions clearly states that a denial of access to property should always be classified as a
physical taking, rather than as a regulatory taking. Indeed, the distinction between
physical and regulatory takings was not of primary concern in any of these cases. And, in
fact, in Bydlon, the court’s analysis relied heavily on a regulatory takings analysis and
cited Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (Pennsylvania Coal), in
support of its finding that a “way of necessity” had been taken by government action.
175 F. Supp. at 900. Thus, the court finds no support for plaintiff’s proposed rule that all
denial of access claims are physical takings claims.


        It is true that, in some cases, denial of access takings claims may be classified
correctly as physical takings claims. In one opinion, for example, the Federal Circuit
stated that no physical taking of water rights occurred because the government “neither
physically appropriated nor denied meaningful access to [the claimants’] water rights.”3
Washoe Cty., Nev. v. United States, 319 F.3d 1320, 1326 (Fed. Cir. 2003) (Washoe
County). It is also true that a regulatory takings analysis may be employed when the
denial of access is related to a regulatory act or to a permitting process. See Bydlon, 175
F. Supp. at 900; cf. Palmyra Pac. Seafoods, L.L.C. v. United States, 561 F.3d 1361,
1370-71 (Fed. Cir. 2009) (citing Bydlon and Laney for the statement of law that “a
regulation that prevents a property owner from accessing private property would
implicate a cognizable property interest for purposes of the Fifth Amendment”). Thus,
the court concludes that the particular facts underlying a denial of access takings claim
determine whether that claim should be analyzed under a physical takings framework or a
regulatory takings framework.

      The question here is whether the government action at issue tends more toward a
physical blocking of access to the claimant’s parcel of land, or a regulatory denial of a


3
       Water rights takings claims, such as the claim discussed in Washoe Cty., Nev. v.
United States, 319 F.3d 1320 (Fed. Cir. 2003), are often classified as physical takings
claims. See Casitas Mun. Water Dist. v. United States, 556 F.3d 1329, 1333 (Fed. Cir.
2009) (noting that “a reason for treating Casitas’ water differently than the coal, trees,
and other property involved in the regulatory takings cases” is because “[t]he Supreme
Court has repeatedly found water diversions to be physical takings”) (citations omitted).
Water rights are not involved in this case.




                                             4
claimant’s application for access to its land. The case law provides that a physical
takings analysis is appropriate in circumstances involving a physical impediment to
access. See, e.g., Estate of Hage v. United States, 687 F.3d 1281, 1290 (Fed. Cir. 2012)
(stating that a fence built around water sources which denied the owners of water rights
access to the water could constitute a physical taking); Roth v. United States, 73 Fed. Cl.
144, 148 (2006) (“It is well-settled that a closure in which defendant physically bars
access to lands comprises a physical taking.”). But, if access is compromised by a
change in the applicable law, the case law instructs that a regulatory takings claim
analysis is more appropriate.4 See Bydlon, 175 F. Supp. at 897-900 (finding that when an
Executive Order cuts off all reasonable access to plaintiffs’ remote resorts, which was
formerly accessible by airplane, a regulatory taking had occurred); cf. Pete v. United
States, 531 F.2d 1018, 1034-35 (Ct. Cl. 1976) (holding that when the owners of large
custom-built houseboats could no longer use the boats in a newly-created and
highly-regulated wilderness area, and also could not remove the boats economically, a
regulatory taking had occurred) (citing Pennsylvania Coal, 260 U.S. at 415).

       The court now turns to the relevant facts in this case.

       B.     Do the Facts Alleged in the Amended Complaint Allude to a Physical
              Taking or to a Regulatory Taking?

         As a threshold matter, the court notes that plaintiff has repeatedly contended that
its claim is for a physical taking, not a regulatory one. ECF No. 16 at 1; ECF No. 24 at 7.
The court’s task, however, is to discern the “true nature” of the claim. See Katz v.
Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994) (“Regardless of the characterization of the
case ascribed by [a plaintiff] in its complaint, we look to the true nature of the action in
determining the existence or not of jurisdiction.”) (citations omitted). An examination of
the “true nature” of a claim is intended to prevent a plaintiff from cloaking its claim for a
regulatory taking in the guise of a physical taking. See Boise Cascade Corp. v. United
States, 296 F.3d 1339, 1354 (Fed. Cir. 2002) (“We agree with the Oregon Court of
Appeals that Boise’s argument is merely an attempt to convert a regulatory takings claim
. . . into a per se taking governed by . . . more generous rule[s].”) (citations omitted).
Such an inquiry into the “true nature” of a claim is especially important where, as here,
ripeness concerns may prevent a court from considering the regulatory takings claim
before it. See id. As the Federal Circuit has stated, an unripe regulatory takings claim is
not redeemed by being mischaracterized as a physical takings claim:

4
       To the extent that the court’s view of denial of access takings claims differs from
any statements of law in the Court of Federal Claims cases cited by plaintiff, the court
respectfully disagrees with the proposition that all denial of access claims are necessarily
physical takings claims. Cf. ECF No. 24 at 16-19 (citing non-binding precedent for this
proposition).


                                             5
       This is a classic example of a regulatory taking problem, not, as the Court
       of Federal Claims believed, an example of a physical taking. Once viewed
       from the proper perspective, i.e., as a claim for a regulatory taking, it
       becomes clear that Appellee’s claim is not ripe.

Stearns Co. v. United States, 396 F.3d 1354, 1357-58 (Fed. Cir. 2005).

        The takings claim here hinges on three government actions identified by plaintiff
in its amended complaint and discussed in its opposition brief. First, there is the 2012
BLM change in policy which, according to plaintiff, restricted BLM’s authority to grant
new road access to landlocked parcels surrounded by BLM wilderness areas. ECF No.
16 at 6-7; ECF No. 24 at 9. Second, there is the 2014 creation of the National Monument
surrounding plaintiff’s parcel that created a change in the status of this federal land
which, according to plaintiff, further restrains BLM from granting new road access to
plaintiff’s land. ECF No. 16 at 7-8; ECF No. 24 at 10. Finally, plaintiff references a
number of communications between plaintiff and BLM between 2012 and August 2017
which, according to plaintiff, confirm that BLM will not grant plaintiff a right-of-way
across federal land so that plaintiff may access its 66-acre parcel. ECF No. 16 at 5-6;
ECF No. 24 at 8, 10.

       Notably absent from plaintiff’s recitation of facts is any mention that BLM erected
a fence or another type of barrier that prevents plaintiff from using the cherry-stem road,
or any other potential road, to access its property. Nor is BLM alleged to have taken any
specific actions that would dissuade access, such as those that were at issue in the
physical takings case, Eyherabide v. United States, 345 F.2d 565 (Ct. Cl. 1965).5 In
Eyherabide, the United States interfered with access to plaintiffs’ ranch by: (1) leaving
warning signs in place that erroneously indicated that plaintiffs’ ranch was part of a
federal military gunnery range; (2) providing inaccurate military maps that included the
ranch within that gunnery range; (3) making numerous incursions onto the ranch,
including intimidating visits by military personnel; and, (4) dropping large items from
airplanes on or near the ranch. Id. at 568-69. In contradistinction, here BLM is alleged
only to have stated that an application for a new right-of-way to access plaintiff’s land
would be denied, but that a right-of-way that traced the cherry-stem road could be
granted. ECF No. 24-1 at 2. The court therefore finds no indication of a physical takings
claim in the amended complaint.


5
        Nor can this case be termed a “hybrid” situation, as in Drakes Bay Land Co. v.
United States, 424 F.2d 574, 584 (Ct. Cl. 1970), where extensive land purchases by the
Park Service all around the parcel in question, as a National Seashore was being created,
led to a taking of the claimant’s parcel.


                                             6
       Because BLM’s consideration of plaintiff’s request for a right-of-way across
federal land is more akin to a regulatory takings scenario, rather than a physical takings
scenario, it is the court’s view that the amended complaint in this suit reflects a regulatory
takings claim. The court must determine next whether the ripeness doctrine bars that
claim. First, however, the court must consider whether the ripeness inquiry should be
conducted under RCFC 12(b)(1), or, as plaintiff argues, under RCFC 12(b)(6). See ECF
No. 24 at 34-35.

       C.     Is the Ripeness Inquiry for a Takings Claim Properly Conducted Under
              RCFC 12(b)(1)?

       Relying on McGuire v. United States, 707 F.3d 1351 (Fed. Cir. 2013), plaintiff
argues that “a ripeness inquiry into administrative exhaustion is not jurisdictional, and
must therefore be determined under Rule 12(b)(6).” ECF No. 24 at 35. The court does
not agree. The relevant statement in McGuire upon which plaintiff relies is as follows:

       In Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734, 117 S. Ct.
       1659, 137 L. Ed. 2d 980 (1997), the Court similarly concluded that
       exhaustion requirements associated with “regulatory takings claim[s]” are
       “prudential hurdles,” not jurisdictional ones.

707 F.3d at 1358 (alteration in original). The court notes that nowhere in McGuire does
the Federal Circuit discuss whether the ripeness inquiry should proceed under RCFC
12(b)(1) or RCFC 12(b)(6). The Federal Circuit, however, does indicate that the ripeness
inquiry is a threshold consideration. McGuire, 707 F.3d at 1357 (citing Palazzolo v.
Rhode Island, 533 U.S. 606, 618 (2001)).

        The question, then, is whether the inquiry into the ripeness of regulatory takings
claims can be considered, along with other threshold issues, under RCFC 12(b)(1). In
Suitum, the Supreme Court addressed this inquiry, framing it as “whether Suitum’s claim
of a regulatory taking of her land in violation of the Fifth and Fourteenth Amendments is
ready for judicial review under prudential ripeness principles.” 520 U.S. at 733. The
Court added “‘that [the] ripeness doctrine is drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to exercise jurisdiction.’” Id. n.7
(quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)) (emphasis
added). The Court has further observed that ripeness may be raised by a court sua sponte,
just like a concern that is strictly jurisdictional. E.g., Nat’l Park Hosp. Ass’n v. Dep’t of
Interior, 538 U.S. 803, 808 (2003) (citation omitted). Thus, in this court’s view, it is
proper to dispose of a threshold matter such as ripeness when this court decides, under
RCFC 12(b)(1), whether it should exercise jurisdiction over a case. See, e.g., Washoe
County, 319 F.3d at 1325 (holding that because the “Appellants’ takings claim is ripe for
review . . . the Court of Federal Claims properly exercised jurisdiction”).



                                              7
        Support for this approach to the ripeness inquiry can be found in the affirmance of
a recent decision of this court. In Freeman v. United States, 124 Fed. Cl. 1 (2015)
(Freeman I), aff’d, 875 F.3d 623 (Fed. Cir. 2017), the court dismissed a regulatory
takings claim for lack of subject matter jurisdiction because it was not ripe. Freeman I,
124 Fed. Cl. at 8. The ripeness question was considered under RCFC 12(b)(1). Id. at 2.
The Federal Circuit affirmed and noted, in particular, that the plaintiffs bore the burden of
establishing jurisdictional facts in that case. Freeman v. United States, 875 F.3d 623,
627-28 (Fed. Cir. 2017) (Freeman II) (citation omitted); see also McGuire, 707 F.3d at
1360 (noting that the plaintiff in that case bore the burden of establishing the ripeness of
his regulatory takings claim). Reading McGuire and Freeman II together, the court finds
that the threshold inquiry into the ripeness of a regulatory takings claim is properly
conducted under RCFC 12(b)(1).

       D.     Is Plaintiff’s Regulatory Takings Claim Ripe?

        Generally, when a landowner elects not to complete an application to receive
permission for the land use at issue in a legal action, the takings claim against the
government authority is deemed unripe. E.g., Barlow & Haun, Inc. v. United States, 805
F.3d 1049, 1059 (Fed. Cir. 2015); see also Howard W. Heck & Assocs., Inc. v. United
States, 134 F.3d 1468, 1472 (Fed. Cir. 1998) (stating that the claimant’s failure to submit
additional required information to accompany its application for a permit rendered its
regulatory takings claim unripe). Even when an applicant faces a likely denial, the
applicant’s takings claim does not become ripe before the administrative process is
exhausted. Barlow & Haun, 805 F.3d at 1058 (citing Corus Staal BV v. United States,
502 F.3d 1370, 1379 (Fed. Cir. 2007)). As the Supreme Court has stated:

       Under our ripeness rules a takings claim based on a law or regulation which
       is alleged to go too far in burdening property depends upon the landowner’s
       first having followed reasonable and necessary steps to allow regulatory
       agencies to exercise their full discretion in considering development plans
       for the property, including the opportunity to grant any variances or waivers
       allowed by law. As a general rule, until these ordinary processes have been
       followed the extent of the restriction on property is not known and a
       regulatory taking has not yet been established.


Palazzolo, 533 U.S. at 620-21 (citing Suitum, 520 U.S. at 736 & n.10). The Federal
Circuit, as well, has stated that the lack of a final decision on a completed application
hampers the court’s ability to apply the Penn Central factors to determine if a regulatory
taking has indeed occurred. McGuire, 707 F.3d at 1359 (citing MacDonald, Sommer &
Frates v. Yolo Cty., 477 U.S. 340, 348 (1986); Williamson Cty. Reg’l Planning Comm’n
v. Hamilton Bank, 473 U.S. 172, 190 (1985); Penn Cent. Transp. Co. v. New York City,
438 U.S. 104 (1978)).


                                             8
        Here, plaintiff has not submitted a complete application for a right-of-way to
BLM. BLM therefore has not issued a final decision on plaintiff’s request for a
right-of-way to cross federal lands to access its property from a public road. Unless the
futility doctrine applies, see infra, plaintiff’s regulatory takings claim is not yet ripe and it
must be dismissed under RCFC 12(b)(1).6

       E.     Is Plaintiff’s Application to BLM for a Right-of-Way Futile?

       It is beyond cavil that a claimant need not request an administrative final decision
when the agency does not possess the discretion to grant a particular land use. McGuire,
707 F.3d at 1361 (citing Greenbrier v. United States, 193 F.3d 1348, 1359 (Fed. Cir.
1999)). The futility of such a request excuses a claimant’s failure to seek a final decision
from an administrative authority. Id. It is also futile to make such a request in a
circumstance in which an agency has made clear, through its prior conduct, that no
application for the requested land use will be granted. Id. (citing Wyatt v. United States,
271 F.3d 1090, 1097 (Fed. Cir. 2001)). In Washoe County, the Federal Circuit found that
a “reasonable degree of certainty” as to the denial of a land use application was a factor
that could -- and did -- support a finding of futility. 319 F.3d at 1324.

        Plaintiff asserts that this case involves both types of the described futile
circumstances, thereby defeating the government’s ripeness challenge to its takings
claim. ECF No. 24 at 27-34. After analyzing the 2012 BLM policy change, the 2014
National Monument designation, and various communications between BLM and
plaintiff, plaintiff urges the court to conclude that:

       Given reasonable inferences in favor of [plaintiff] under Rule 12(b)(6),
       these alleged facts establish that it is plausible that BLM would not
       authorize [plaintiff’s] right-of-way and therefore the permissible uses of
       [its] property are known to a reasonable certainty.

ECF No. 24 at 34.

6
       Although the ripeness inquiry presented here addresses plaintiff’s regulatory
takings claim, a physical takings claim, on these facts, would fare no better. In Washoe
County, a ripeness inquiry was conducted for a physical takings claim that was allegedly
effected by a fruitless permitting process. 319 F.3d at 1323-25. The same ripeness
requirement that typically applies to regulatory takings claims, i.e., that the claimant
complete an application to obtain a final decision from the administrative authority, was,
in Washoe County, applied to a physical takings claim. Id. at 1324-25. Thus, under
Washoe County, any physical takings claim presented in plaintiff’s amended complaint is
also not ripe.


                                               9
       The court notes, first, that the ripeness inquiry here is conducted under RCFC
12(b)(1) and that disputed facts which might establish the futility of plaintiff’s application
before BLM for a right-of-way are to be weighed by the court. Ferreiro, 350 F.3d at
1324. Further, to the extent that the futility of the right-of-way application is a legal
conclusion contained within the amended complaint, that legal conclusion is not accorded
favorable inferences. See, e.g., Papasan v. Allain, 478 U.S. 265, 286 (1986) (“[W]e are
not bound to accept as true a legal conclusion couched as a factual allegation.”) (citations
omitted). With these standards in mind, the court turns to the parties’ factual allegations
regarding BLM’s discretion to grant a right-of-way and the prospects that plaintiff’s
application for a right-of-way would be denied by BLM.

              1.     Discretion

       According to plaintiff, neither the 2012 BLM policy change nor the 2014 National
Monument designation affords BLM the discretion to grant a right-of-way that would
allow plaintiff to access its landlocked parcel from a public highway. Plaintiff undercuts
its own argument, however, by also acknowledging the possibility that a right-of-way
could be granted across federal land along the cherry-stem road. ECF No. 24 at 35-36.
Moreover, plaintiff fails to address in its argument the fact that plaintiff and defendant
entered into negotiations to discuss a possible right-of-way solution to plaintiff’s access
problem well after the 2012 BLM policy change and the 2014 National Monument
designation were put into place. Id. at 12. These facts suggest to the court that BLM has
some discretion to grant a right-of-way that might provide access to plaintiff’s land,
although the exact mechanism by which plaintiff might be able to access a public road
from, for example, the cherry-stem road, remains uncertain. See Def.’s Reply, ECF No.
25 at 16 n.6 (suggesting that the cherry-stem road, plus a right-of-way over state land,
might provide access to the parcel in question).

              2.     No Reasonable Certainty of Denial of the Application

        Plaintiff highlights a number of communications with BLM which, in plaintiff’s
view, show that BLM would never grant a right-of-way to plaintiff’s property except
along the cherry-stem road. ECF No. 24 at 8, 12, 15, 25-27, 29-31, 34. It is important to
note, however, that BLM has never had a completed right-of-way application from
plaintiff before it. There are a number of formal procedural steps that such an application
would trigger, some of which would helpfully inform whether reasonable access to
plaintiff’s parcel could be gained and what alternatives BLM and plaintiff might choose
to consider. See ECF No. 19 at 25 n.10. The record before the court provides no
reasonable certainty as to the disposition of plaintiff’s application for a right-of-way,
because, at this time, so little is known about the completed application plaintiff would




                                             10
submit or the administrative consideration that such a completed application would
receive.7

       The court is mindful of the expense of a completed right-of-way application,
which plaintiff estimates to be in the tens of thousands of dollars. ECF No. 16 at 8-9.
The court is also mindful of the expense associated with litigating a regulatory takings
claim. To proceed further before the court, plaintiff must satisfy its burden as to ripeness.
McGuire, 707 F.3d at 1360. But because so many of the facts relevant to plaintiff’s claim
are yet unknown or are disputed, and because the futility of plaintiff’s right-of-way
application, as yet incomplete, has not been shown, plaintiff has not met its burden.

        The court further observes that – consistent with the allegations in the amended
complaint -- federal, state and private land currently block reasonable access to plaintiff’s
property, a factual circumstance that frustrates any “easement of necessity” analysis until
plaintiff’s application process is complete. Cf. id. at 1364 (stating that “all means of
access to the property must be cut off by the regulation to warrant a cognizable easement
of necessity” (citing Laney, 661 F.2d at 149)) (emphasis added). It is only through final
administrative action by BLM that a regulatory takings analysis, weighing every
significant factor (including the Penn Central factors), could provide plaintiff with any
meaningful relief from this court. See id. at 1359. In this case, the application process
would show, through the precise application of regulatory constraints, whether the United
States has taken any property interest of plaintiff. Palazzolo, 533 U.S. at 620-21. Until
that application process has been completed, however, plaintiff’s takings claim is not ripe
and must be dismissed.

IV.    Conclusion

        For the reasons more fully explained above, plaintiff’s takings claim must be
dismissed pursuant to RCFC 12(b)(1) because it is not ripe. Accordingly, defendant’s
motion to dismiss, ECF No. 19, is GRANTED. The clerk’s office is directed to ENTER
final judgment for defendant DISMISSING plaintiff’s amended complaint, without
prejudice.

       IT IS SO ORDERED.

7
       This is not a simple denial of access claim. The evolution of historic access to the
property presents complexities that are demonstrated by plaintiff’s negotiations with both
the State and private landowners. See ECF No. 16 at 4; ECF No. 24 at 30; ECF No. 24-
1; ECF No. 24-2; ECF No. 24-3. Until plaintiff presents a completed right-of-way
application to BLM, which might or might not include a request for a right-of-way along
the cherry-stem road, and BLM has issued a final decision on that application, the issue
of access to the property remains uncertain and unpredictable.


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 s/ Patricia Campbell-Smith
 PATRICIA CAMPBELL-SMITH
 Judge




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