In the United States Court of Federal Claims
                                           No. 15-336 C
                                    Filed: September 30, 2015

****************************************
                                       *
ROCKY MOUNTAIN HELIUM, LLC,            *
                                       *                  Jurisdiction,
      Plaintiff,                       *                      28 U.S.C. § 1346;
                                       *                  Motion To Dismiss,
v.                                     *                      RCFC 12(b)(1),
                                       *                      RCFC 12(b)(6);
THE UNITED STATES,                     *                  Tucker Act,
                                       *                      28 U.S.C. § 1346(a)(2),
      Defendant.                       *                      28 U.S.C. § 1491.
                                       *
****************************************

David B. Bush, DavidLaw, LLC, Wheat Ridge, Colorado, Counsel for Plaintiff.

Renee A. Gerber, United States Department of Justice, Washington, D.C., Counsel for the
Government.

                     MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I.     RELEVANT FACTUAL BACKGROUND.1

       On June 24, 1994, Rocky Mountain Helium, LLC (“Rocky Mountain”) and the United
States Department of Interior’s Bureau of Land Management (“Interior”), entered into Federal
Helium Contract No. FLL 94-001 (“Helium Contract”) to “conserve and extract the helium
component of the gas stream produced from oil and gas wells” on 21,522.44 acres in western
Colorado. Compl. ¶¶ 11–14.

        Pursuant to the Helium Contract, Rocky Mountain was required to pay an annual rent of
either one dollar per acre or royalties of equal or greater. Gov’t App. A3–5; Compl. ¶ 14. The
minimum annual rent was $21,522.44. Compl. ¶ 14. In the event that Helium Contract was
terminated by Interior, Rocky Mountain nevertheless had preferential rights for one year, if Interior
decided to enter into a new agreement. Gov’t App. A5.



       1
         The facts discussed herein were derived from: the April 1, 2015 Complaint; the Appendix
to the Government’s July 13, 2015 Motion To Dismiss (“Gov’t App. A1–A26”); and the June 5,
2003 First Administrative Modification of Contract (“Court Exhibit A”).
        During August 1, 1994 through July 31, 1995, Rocky Mountain paid Interior $500.00 plus
the first annual rent payment of $21,522.44, pursuant to the Helium Contract. Compl. ¶ 16.
Sometime in 1994 and through 2009, Rocky Mountain also attempted to negotiate a contract to
extract helium from properties held by other federal oil and gas lessees. Compl. ¶ 20. According
to Rocky Mountain, Interior never assisted or cooperated in that effort. Compl. ¶ 22. As a result,
Rocky Mountain never made any rent payments after July 31, 1995 and was in default on August
31, 1996. Gov’t App. A3.

       On June 5, 2003, however, Rocky Mountain and Interior entered into a First Administrative
Modification of the Helium Contract2 authorizing Rocky Mountain to extract helium on nearly one
million additional acres in western Colorado and eastern Utah. Court Exhibit A; Compl. ¶ 24.
But, the June 5, 2003 First Administrative Modification provided that it would not be effective
unless Rocky Mountain made “payment in full of all accrued rentals, penalties and interest within
90 days of the date both parties have executed these modifications[.]” Court Exhibit A at 2. Rocky
Mountain, however, never made any payments to Interior under the First Amendment
Modification Compl. ¶ 22. As such, the First Administrative Modification became ineffective.

       On December 29, 2004, Interior notified Rocky Mountain that it cancelled the Helium
Contract for non-payment. Gov’t App. A12. In January 2005, Rocky Mountain filed an
administrative appeal of that notice with the Civilian Board of Contract Appeals (“CBCA”).
Compl. ¶ 26; Gov’t App. A12.

        On August 29, 2008, Rocky Mountain and Interior entered into a Settlement Agreement,
whereby, within 30 days after execution, Interior was required to provide Rocky Mountain with
data about the composition of gases, including helium, located on specified land of the federal oil
and gas lessees. Gov’t App. A12–21. The requested data would reveal whether enough helium
existed to justify building a helium recovery unit. Compl. ¶¶ 27–28; Gov’t App. A13. Upon
receipt of this data and after it “confirmed that it had received sufficient data,” Rocky Mountain
was required to pay $116,579.90 in accrued rental payments, fees, penalties, and interest. Compl.
¶ 29; Gov’t App. A13. After payment and confirmation from Rocky Mountain that it intended to
proceed, Interior would reinstate the Helium Contract. Gov’t App. A13. Upon reinstatement,
Rocky Mountain was obligated to resume annual rental/royalty payments to Interior. Gov’t App.
A13. If the Settlement Agreement was executed and helium production commenced, the parties
would then sign a Second Administrative Modification that would authorize Rocky Mountain to
extract helium from the lands identified in the June 5, 2003 First Administrative Modification.
Gov’t App. A22. If Rocky Mountain failed to make the requested payment, within 90 days after
delivery of the data, a Sunset Provision would be triggered requiring Rocky Mountain to release
all claims, rights, and/or interest in or arising from the Helium Contract. Gov’t App. A13–16.




       2
          On September 18, 2015, Plaintiff e-mailed a version that was not signed by any Interior
official. On September 22, 2015, the Government e-mailed a version that was signed by both
parties. (“Court Exhibit ‘A’ ”).

                                                2
        According to Rocky Mountain, however, Interior “failed to provide [Rocky Mountain] with
a sufficient and complete set of data[.]” Compl. ¶ 30. For this reason, Rocky Mountain did not
pay the required rental payment. Compl. ¶ 31.

       On April 21, 2009, Interior invoked the Sunset Provision of the Settlement Agreement and
informed Rocky Mountain that it “fully, finally and permanently terminated” the June 24, 1994
Helium Contract. Compl. ¶ 32; Gov’t App. A25. Thereafter, Interior entered into a contract with
another party to extract helium from the land. Compl. ¶ 33.

II.    PROCEDURAL HISTORY.

        On April 1, 2015, Rocky Mountain (“Plaintiff”) filed a Complaint in the United States
Court of Federal Claims alleging breach of the Settlement Agreement by failing to provide
sufficient data, breach of the Helium Contract’s preferential rights provision, and breach of the
covenant of good faith and fair dealing. Compl. ¶¶ 36; 43; 45–47.

       On May 19, 2015 and June 22, 2015, Defendant (“the Government”) filed Motions For
Extensions Of Time To Respond to the April 1, 2015 Complaint that the court granted.

       On July 13, 2015, the Government filed a Motion To Dismiss (“Gov’t Mot.”), pursuant to
Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”).
On August 7, 2015, Plaintiff filed a Response (“Pl. Resp.”). On September 8, 2015, the
Government filed a Reply (“Gov’t Reply”).

       On September 18, 2015, Plaintiff e-mailed to the court a copy of the June 5, 2015 First
Administrative Modification that was unsigned by the Government. On September 22, 2015, the
Government e-mailed a copy of the June 5, 2015 First Administrative Modification that was signed
by both parties.

III.   DISCUSSION.

       A.      Jurisdiction.

        The United States Court of Federal Claims has “jurisdiction to render judgment upon 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). The Tucker Act, however, is “‘only a jurisdictional statute; it does not create
any substantive right enforceable against the United States for money damages.’” United
States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Testan, 424 U.S. 392, 398
(1976)). Therefore, to satisfy the jurisdictional requirements of the Tucker Act, a plaintiff must
identify and plead a constitutional provision, federal statute, independent contractual relationship,
or executive agency regulation that provides a substantive right to money damages. See
Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act
requires the litigant to identify a substantive right for money damages against the United States
separate from the Tucker Act itself.”); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed.

                                                 3
Cir. 2004) (“Because the Tucker Act itself does not provide a substantive cause of action . . . a
plaintiff must find elsewhere a money-mandating source upon which to base a suit.”).

      Whether the court has jurisdiction to adjudicate the claims alleged in the April 1, 2015
Complaint is discussed herein.

       B.      Standards Of Review.

               1.      Under RCFC 12(b)(1).

        A challenge to the United States Court of Federal Claims’ “general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(1) motion[.]”
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (“Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]”).
When considering whether to dismiss an action for lack of subject-matter jurisdiction, “a court
must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable
inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011).

        “Determination of jurisdiction starts with the Complaint, which must be well-pleaded in
that it must state the necessary elements of the plaintiff’s claim, independent of any defense that
may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). The court
may also consider evidence outside the pleadings when jurisdictional facts are in dispute. See
Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) (“Fact-finding is proper when
considering a motion to dismiss where the jurisdictional facts in the complaint . . . are
challenged.”). As such, consideration of the Appendix to the Government’s July 13, 2015 Motion
To Dismiss is appropriate, because the documents contained therein provide the factual basis for
whether the court has jurisdiction to adjudicate Plaintiff’s claims. Likewise, Plaintiff included an
identical Appendix in its August 7, 2015 Response.

               2.      Under RCFC 12(b)(6).

       A challenge to the United States Court of Federal Claims’ “[ability] to exercise its general
power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] 12(b)(6)
motion[.]” Palmer, 168 F.3d at 1313; see also RCFC 12(b)(6) (“Every defense to a claim for relief
in any pleading must be asserted in the responsive pleading . . . . But a party may assert the
following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted[.]”).

        When considering whether to dismiss an action for failure to state a claim, the court must
assess whether “a claim has been stated adequately” and then whether “it may be supported by [a]
showing [of] any set of facts consistent with the allegations in the complaint.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 563 (2007). The plaintiff’s factual allegations must be substantial
enough to raise the right to relief “above the speculative level.” Id. at 555. The court must accept
all factual allegations in the complaint as true and make all reasonable inferences in favor of the
plaintiff. Id.


                                                  4
       C.      The Government’s July 13, 2015 Motion To Dismiss.

               1.      The Government’s Argument.


         The Government argues that because each of the three claims in the April 1, 2015
Complaint—breach of the Helium Contract, breach of the Settlement Agreement, and breach of
the covenant of good faith and fair dealing—“are based on the same facts . . . and seek the same
relief, the [c]ourt should consider them the same claim for purposes of determining jurisdiction.”
Gov’t Mot. at 8.

       First, to the extent Plaintiff’s claims are based on the Helium Contract, “its right to go to
the IBLA [Interior Board of Land Appeals] creates jurisdiction in the Federal district courts[,]
because the district courts have exclusive jurisdiction [to] review IBLA decisions under the
Administrative Procedure Act.” Gov’t Mot. at 12 (citing Griffin & Griffin Exploration, LLC v.
United States, 116 Fed. Cl. 163, 172 (2014) (“Congress has invested the federal district courts with
exclusive jurisdiction to review [Interior Board of Land Appeals] decisions pursuant to the
Administrative Procedure Act.”)).

        Second, the Settlement Agreement is not money-mandating and, therefore, the court does
not have jurisdiction under the Tucker Act to adjudicate Plaintiff’s claims thereunder. Gov’t Mot.
at 8–11. “The [S]ettlement [A]greement requires that Rocky Mountain pay [Interior] because of
its years of failure to pay rent on the helium lease, not the other way around. It creates no monetary
duty [on Interior].” Gov’t Mot. at 9–10. In addition, the Settlement Agreement requires that the
parties resolve their disputes through the Civilian Board of Contract Appeals (“CBCA”), not the
United States Court of Federal Claims. Gov’t Mot. at 10 (citing Gov’t App. A16 (“The parties
agree that, except in the event of a triggering of the Sunset Provision described at item III(1) herein,
disputes or disagreements arising from operation of this Agreement will be submitted to the . . .
CBCA for [Alternative Dispute Resolution.]”)).

        The Government adds that this court should not exercise jurisdiction, because Plaintiff’s
claims are not ripe, since Plaintiff failed to exhaust its administrative remedies. Gov’t Mot. at 11.
Interior’s regulations provide a right to appeal to the Interior Board of Land Appeals. Gov’t Mot.
at 11 (citing 43 C.F.R. § 4.410). “To the extent Rocky Mountain has any claims that the settlement
agreement did not reserve for mediation at the CBCA, . . . the regulation permitted Rocky
Mountain to appeal to the Interior Board of Land Appeals.” Gov’t Mot. at 11. Although exhaustion
of administrative remedies is not a jurisdictional requirement, “it is ‘desirable to let the agency
develop the necessary factual background upon which decisions should be based.’” Gov’t Mot. at
12 (quoting McKart v. United States, 395 U.S. 185, 194 (1969)).

        In the alternative, the Government argues that Plaintiff failed to state a claim upon which
relief can be granted, because the Government properly terminated the Helium Contract in 2004
and it never was reinstated. Gov’t Mot. at 13–14. As for the Settlement Agreement, it provided
only that the Helium Contract would be reinstated, if Plaintiff paid Interior $116,579.90. Gov’t

                                                   5
App. A13–14. Because Plaintiff never paid that amount, the Helium Contract never was reinstated.
Gov’t Mot. at 14. Although it is true that Plaintiff had preferential rights over any new contract
for one year after the termination of the Helium Contract, Interior entered into a new helium lease
with a third party four to five years after the termination of the Helium Contract. Gov’t Mot. at
14. As such, Interior did not breach Plaintiff’s preferential rights under that contract. Gov’t Mot.
at 14.

        Plaintiff also “failed to articulate any basis for its claim of damages.” Gov’t Mot. at 16.
Plaintiff claims $100,000,000 in damages it is owed, but “has not explained how it has incurred
any damages[.]” Gov’t Mot. at 16. Such conclusory allegations are not sufficient to state a claim
upon which relief can be granted. Gov’t Mot. at 16 (citing Ashcroft v. Iqbal, 556 U.S. 662, 680
(2009)). Also, Plaintiff’s claims for legal fees are not permissible in breach of contract actions.
Gov’t Mot. at 17 (citing SAB Const., Inc. v. United States, 66 Fed. Cl. 77, 88 (2005)). And,
Plaintiff’s claim that it lost “rentals paid to the [Government]” is not supported in the record,
because Plaintiff admitted that it never paid rent under the Settlement Agreement. Gov’t Mot. at
17. Thus, the April 1, 2015 Complaint failed to allege facts sufficient to establish “lost profits.”
Gov’t Mot. at 17–18.

       Finally, the April 1, 2015 Complaint failed to “allege any facts that would support a breach
of the covenant of good faith and fair dealing.” Gov’t Mot. at 14. Specifically, there is no
statement of any facts or acts showing that the Government intended to interfere either with the
Helium Contract or the Settlement Agreement. Gov’t Mot. at 15.

                 2.     Plaintiff’s Response.

        Plaintiff responds that none of the contracts at issue are required to be explicitly money-
mandating. Pl. Resp. at 9. “No independent statute or money-mandating law need exist [for breach
of contract claims].” Pl. Resp. at 9 (citations omitted). The same principle applies to the
Settlement Agreement, because it is governed by contract law. Pl. Resp. at 10. And, because
Plaintiff seeks damages exceeding $10,000, the United States Court of Federal Claims has
exclusive jurisdiction over its claims. Pl. Resp. at 11 (citing 28 U.S.C. § 1346(a)(2)3).



       3
           Section 1346, in relevant part, provides:

       The district courts shall have original jurisdiction, concurrent with the United States
       Court of Federal Claims, of: . . .
       ....
       Any other civil action or claim against the United States, not exceeding $10,000 in
       amount, 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. § 1346(a)(2).
                                                   6
       Plaintiff also contends that the court has jurisdiction over contract claims and the
Government has failed to establish that either of the two exceptions—when a contract “expressly
disavow[s] money damages as a remedy” and “where the only remedies specified in the contract
are non-monetary”—applies. Pl. Resp. at 11–12. In fact, the Settlement Agreement was
“inherently related” to monetary compensation, because it was the basis for reinstating the Helium
Contract. Pl. Resp. at 12–13 (citing Holmes v. United States, 657 F.3d 1303, 1316 (Fed. Cir. 2011)
(holding that “the [employment settlement] agreements inherently relate to monetary
compensation”)).

        Plaintiff adds that it was not required to pursue administrative remedies through the CBCA
and any attempt to do so now would be futile. Pl. Resp. at 16–17. “Even though [Plaintiff] had
no obligation to exhaust its administrative remedies in the first place, it nevertheless did so in 2005.
It appealed from the wrongful termination of the Helium Contract and pursued that process for a
period of years, before it successfully negotiated a Settlement Agreement in 2008.” Pl. Resp. at
17. “Nothing in the law mandates that [Plaintiff] try mediation or a second round of administrative
appeals, especially where they could offer no meaningful relief.” Pl. Resp. at 17. In fact, the
Settlement Agreement provided that, except in the event that the Sunset Provision is triggered,
disputes would be submitted to the CBCA. Pl. Resp. at 15; see also Gov’t App. A16 (emphasis
added). Since the Government invoked the Sunset Provision, the parties are not required to pursue
dispute resolution before the CBCA. Pl. Resp. at 15.

        In the alternative, Plaintiff argues that the April 15, 2015 Complaint stated a claim for relief
for breach of its preferential rights guaranteed by the Helium Contract. Pl. Resp. at 17. Although
Interior terminated the Helium Contract in 2004, Plaintiff appealed that decision and the parties
“finally settled in 2008.” Pl. Resp. at 19. As such, the Helium Contract could not have been
terminated in 2004, as the Government contends. Pl. Resp. at 19. Instead, the Helium Contract
was terminated in 2009, because the Settlement Agreement expressly reinstated it. If Interior had
leased helium rights before entering the Settlement Agreement, then the Settlement Agreement
“would have been pointless[,] because the subject matter of the Helium Contract was destroyed.”
Pl. Resp. at 19. Thus, by leasing helium to another buyer less than one year after invoking the
Sunset Provision without affording Plaintiff a right of first refusal, Interior did not honor the
Helium Contract’s preferential rights provision. Pl. Resp. at 18–19.

        With regard to the good faith and fair dealing claim, Plaintiff argues that it has articulated
sufficient facts to support this claim. Pl. Resp. at 19. First, a breach of the implied duty of good
faith and fair dealing may occur “where a party ‘acts in a commercially unreasonable manner while
exercising some discretionary power under the contract.’” Pl. Resp. at 21 (citing Dotcom
Associates v. United States, 112 Fed. Cl. 594, 599 (2013)). At the time the Helium Contract was
formed, “[i]t was foreseeable . . . that cooperation from oil and gas lessees was essential.” Pl.
Resp. at 21. Moreover, when federal oil and gas lessees refused to allow Plaintiff access to recover
helium, Interior “did nothing to assist” Plaintiff. Pl. Resp. at 21. Without cooperation from
Interior, Rocky Mountain was not obligated to make the annual payments due. Pl. Resp. at 21.
Second, the Government did not provide a complete set of the data that it promised under the
Settlement Agreement. Pl. Resp. at 22. In sum, Interior “acted commercially unreasonably and
in bad faith to breach both the Settlement Agreement and the underlying Helium Contract.” Pl.
Resp. at 22.

                                                   7
               3.      The Government’s Reply.

        The Government replied that the preferential rights granted in the Helium Contract were
no longer operative after the Helium Contract was terminated in 2004 and was never reinstated.
Gov’t Reply at 1. Therefore, Plaintiff “failed to state a cognizable claim for a breach of the
preferential rights clause of the helium lease because the preferential rights lasted only until 2005.”
Gov’t Reply at 2–3. The Government adds that the core of the April 15, 2015 Complaint is
whether Interior met its responsibility to provide Plaintiff with the data under the Settlement
Agreement. Gov’t Reply at 5. But, the Settlement Agreement required that if Plaintiff did not pay
the $116,579.90 due, the Sunset Provision would be triggered releasing Plaintiff’s “claims, rights,
and/or interest in or arising from [the Helium Contract] in their entirety.” Gov’t App. A15–16.
Plaintiff never paid, so Plaintiff cannot complain about reinstatement of the Helium Contract.
Gov’t Reply at 5.

         But an agreement over whether sufficient data was provided by Interior “does not provide
a right to money damages[.]” Gov’t Reply at 5. The Government adds that, because the April 15,
2015 Complaint is based on whether Interior met its Settlement Agreement responsibilities,
Plaintiff is obliged to utilize the dispute resolution procedure set forth therein. Gov’t Reply at 5–
6. Specifically, the Settlement Agreement provides that disputes, other than those concerning the
Sunset Provision, must be submitted to the CBCA. Gov’t App. A16. Since Plaintiff does not
contest the Sunset Provision, but rather whether Interior properly fulfilled its Settlement
Agreement responsibilities, Plaintiff must submit its claims to the CBCA.

        Finally, the Government replies that Plaintiff did not “articulate the basis for its damages.”
Gov’t Reply at 9. Although the Government recognizes that notice pleading does not require a
“full factual development in the complaint,” Plaintiff “should be required to allege . . . the elements
necessary for a lost profit claim[.]” Gov’t Reply at 9.

               4.      The Court’s Resolution.

       This case concerns two interrelated contracts—the January 20, 1994 Helium Contract
(Gov’t App. A1–11) and the August 29, 2008 Settlement Agreement (Gov’t App. A12–21). Other
relevant documents include: the June 5, 2003 First Administrative Modification to the Helium
Contract (Court Exhibit A) and an undated and unsigned Second Administrative Modification,
attached to the August 29, 2008 Settlement Agreement (Gov’t App. A22–24).

        The June 5, 2003 First Administrative Modification enlarged Plaintiff’s helium extraction
rights and provided that any dispute must be resolved with Interior’s Director of New Mexico’s
BLM [Bureau of Land Management] State Office. Court Exhibit A at 2. The First Administrative
Modification, however, became effective only upon Plaintiff’s payment of accrued rentals,
penalties, and interest. As the April 1, 2015 Complaint states, Plaintiff never paid Interior after



                                                  8
July 31, 1995. Compl. ¶ 22. As such, the June 5, 2003 First Administrative Modification was
inoperative.

        The Second Administrative Modification, attached to the August 29, 2008 Settlement
Agreement, provides: “Upon the satisfaction by RMH [Rocky Mountain Helium] of the
obligations set forth in the Settlement Agreement, including the commencement of helium
production . . . BLM shall sign and issue this Modification. At such time, the Modification shall
take effect and become valid and enforceable.” Gov’t App. A22–23. Plaintiff, however, never
began helium operations and neither party signed the Second Administrative Modification.
Therefore, the Second Administrative Modification was inoperative.

       Since both the June 5, 2003 First Administrative Modification and the Second
Administrative Modification had no legal effect, the court will turn to the January 20, 1994 Helium
Contract and the August 29, 2008 Settlement Agreement.

         As to the January 20, 1994 Helium Contract, the court does not have jurisdiction over
Plaintiff’s claim that Interior breached Plaintiff’s preferential rights, because Plaintiff does not
have standing. Standing is a constitutional limit on a federal court’s jurisdiction. See Gladstone
Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979). To satisfy the United States Constitution’s
Art. III’s case or controversy requirement, the plaintiff must have suffered an injury-in-fact that is
fairly traceable to the defendant’s action and is likely to be redressable by a favorable court
decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (“First, the plaintiff
must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a)
concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical’.
Second, there must be a causal connection between the injury and the conduct complained of—the
injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not before the court.’ Third, it must be
‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable
decision.’”). Although the United States Court of Federal Claims is not an Art. III court, this court
applies the same test for standing. See Anderson v. United States, 344 F.3d 1343, 1350 (Fed. Cir.
2003).

        In this case, Plaintiff alleges that the injury it suffered is monetary damages stemming from
Interior’s breach of the Helium Contract’s preferential rights provision. This injury is allegedly
traceable to Interior’s decision to lease the helium rights to a different party less than one year after
it terminated the Helium Contract. Plaintiff, however, overlooks the fact that it was in default of
the Helium Contract on August 1, 1996, when the annual rental payment was due. Gov’t App.
A3; Compl. ¶ 22; Gov’t App. A3. As such, Plaintiff did not suffer injury-in-fact and does not have
standing.

        Even if Plaintiff was injured by loss of preferential rights, the April 15, 2015 Complaint
failed to state a claim upon which relief can be granted. On a RCFC 12(b)(6) motion to dismiss,
a court must accept all factual allegations in the complaint as true. See Bell Atl. Corp., 550 U.S.
at 563. The court, however, is not bound to accept as true a legal conclusion couched as a factual
allegation. Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The April 1, 2015 Complaint
alleges a breach of the Helium Contract. The Helium Contract, however, was never reinstated,
because the Settlement Agreement conditioned reinstatement on Plaintiff’s payment of the
                                                   9
$116,579.90. Specifically, the Settlement Agreement provided, “Upon receipt of the payment
[Plaintiff’s payment of $116,579.90 to Interior] . . . BLM shall formally reinstate the Contract.”
Gov’t App. A13. The Settlement Agreement also provided, “Upon the execution of this
Agreement, or within a reasonable time thereafter, BLM agrees to provide RMH [Rocky Mountain
Helium] with a ‘Letter of Intent to Recover Helium and Reinstate Federal Helium Contract FLL94-
001’ wherein BLM will express its intent to reinstate the Contract upon RMH’s fulfillment of the
terms described in this Agreement.” Gov’t App. A13 (emphasis added). “When the contract
language is unambiguous on its face, our inquiry ends, and the plain language of the contract
controls.” Hunt Construction Group, Inc. v. United States, 281 F.3d 1369, 1373 (Fed. Cir. 2002).
The plain language of the Settlement Agreement sets forth the terms that must be satisfied before
the Helium Contract would be reinstated. It did not provide that the Helium Contract
automatically would be reinstated. Plaintiff never paid the requisite $116,579.90 to Interior. As
such, a material condition precedent to reinstating the Helium Contract was never satisfied. Since
the Helium Contract was never reinstated, Interior did not breach the Helium Contract’s
preferential rights provision.

        To the extent that Plaintiff argues that Interior’s insufficient data disclosure excused
Plaintiff’s performance to pay Interior: that is not so. As the April 1, 2015 Complaint states,
$116,579.90 was the amount that Plaintiff owed Interior from 1996 to 2004. Compl. ¶ 6.
Assuming arguendo that Interior did not provide sufficient data, that failure to perform did not
excuse Plaintiff’s obligation to pay the $116,579.90 it owed. See Haddon Housing Associates,
Ltd. Partnership v. United States, 711 F.3d 1330, 1339 (Fed. Cir. 2013) (“Absent a showing that
HUD [the United States Department of Housing and Urban Development] took some action that
prevented or hindered Haddon's ability to submit its requests, the prevention doctrine does not
apply to excuse Haddon's failure to submit rent requests.”). Moreover, the plain language of the
Settlement Agreement expressly conditioned reinstatement of the Helium Contract upon Plaintiff’s
payment of $116,579.90. Since Plaintiff never paid, the Helium Contract was never reinstated.
Consequently, Interior could not have breached the Helium Contract and Plaintiff cannot state a
claim upon which relief can be granted.

        This court also does not have subject-matter jurisdiction over the August 29, 2008
Settlement Agreement, because it does not have jurisdiction over contract claims where the
contract provides for exclusive dispute resolution procedures. See Doe v. United States, 513 F.3d
1348, 1355 (Fed. Cir. 2008); see also Todd, 386 F.3d at 1094. Item III(3) of the Settlement
Agreement provided: “[E]xcept in the event of a triggering of the Sunset Provision described at
item III(1), disputes or disagreements arising from operation of this Agreement will be submitted
to the Honorable Judge Allan Goodman at the CBCA for ADR [Alternative Dispute Resolution]
pursuant to CBCA rule 54.” Gov’t App. A16. Item III(1) of the Settlement Agreement defines
Sunset Triggering Events as, “nonpayment of the initial $116,579.90 . . .; failure to pay the O&G
[Oil and Gas] Lessee’s BLM-approved costs . . .; or failure to begin recovery of Helium within the
timeframe . . . (all ‘Sunset Triggering Events’)[.]” Gov’t App. A15–16. The April 1, 2015
Complaint alleges that Interior breached the Settlement Agreement by failing to provide sufficient
data. Compl. ¶ 36. Assuming arguendo that this is true, that is a dispute about the operation of
the Settlement Agreement instead of the Sunset Triggering Events. As such, Item III(1) of the
Settlement Agreement applies and Plaintiff’s claim must be adjudicated at the CBCA not the
United States Court of Federal Claims.


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IV.    CONCLUSION.

       For the reasons discussed herein, the Government’s July 13, 2015 Motion To Dismiss is
granted. See RCFC 12(b)(1); see also RCFC 12(b)(6). The Clerk of the Court is directed to
dismiss the April 1, 2015 Complaint.

       IT IS SO ORDERED.

                                                 s/ Susan G. Braden
                                                 SUSAN G. BRADEN
                                                 Judge




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