                                 (}RIGINAI
                                                                                                FILED
           lJntbt @niteU btuttg@ourtof ftUtrst @tsfms                                        MAR     2e   20t6
                                               Pro Se
                                            No. l4-632L
                                                                                           ,H"te
                                      (Filed: March 29,2016)
                                                                                                   ^t^?'&lpnl,

 GENE CHITTENDEN. et al..                               Keywords: Mining Act of 1872; 30 U.S.C.
                                                        $ 26; Fifth Amendment Takings Clause;
                        Plaintiffs,                     Motion to Dismiss; RCFC 12(b)(l);
                                                        Summary Judgment; RCFC l2(b)(6);36
                                                        c.F.R. $ 224.8.

 THE UNITED STATES OF AMERICA,

                        Defendant.




Gene Chittenden, Auburn, CA, Plaintiff, pro se.

Allen D. Hall,N. San Juan, CA, Plaintifl pro se.
Carter Fleeth Thurman, Trial Attomey, with whom was./ohn C. Cruden, Assistant Attomey
General, Environment & Natural Resources Division, United States Department ofJustice,
Washington, DC, for Defendant.

                                      OPINION AND ORDER
KAPLAN, Judge.

        Plaintiffs in this action, Gene Chittenden and Allen D. Hall, hold unpatented mining
claims on two lode mines located in the Tahoe National Forest in Califomia. Plaintiffs claim that
when the United States Forest Service installed bat gates on the shaft and portal of the mines it
"intentionally, negligently and [tortiously]" destroyed their claims, violated their rights under the
Fifth Amendment's Due Process Clause, and effected a taking oftheir property for which they
are owed compensation under tle Fifth Amendment's Takings Clause. See Compl. at 1-2, ECF
No.   1.


       Cunently before the Court are: l) the government's motion to dismiss Plaintiffs'tort and
due process claims for lack ofjurisdiction pursuant to Rules ofthe Court ofFederal Claims
(RCFC) l2(bXl); and 2) the parties' cross-motions seeking summary judgment pusuant to
RCFC 56 on the takings claim. ECF Nos. 16-17.

        For the reasons set forth below, the Court finds that it does not have jurisdiction over
Plaintiffs' tort and due process claims, and so GRANTS the government's motion to dismiss
those claims under RCFC 12(bX1). Further, the Court concludes that the installation of the bat
gates did not constitute a taking of property within the meaning of the Fifth Amendment.
Accordingly, the govemment's motion for summary judgment is GRANTED and Plaintiffs'
motion is DENIED.

                                         BACKGROUND

      I.       Statutory and Regulatory Framework

        "To encourage private development of mineral deposits, federal law permits private
parties to discover, explore, and reclaim mineral deposits in federally-owned lands." Kunkes v.
United States,78 F.3d 1549, 1550 (Fed. Cir. 1996) (citing 30 U.S.C. $ 22(2012) ("[A]ll valuable
mineral deposits in lands belonging to the United States . . . shall be free and open to exploration
and purchase, and the lands in which they are found to occupation and purchase, by citizens of
the United States . . . under regulations prescribed by law.")); see also United States v. Locke,
471 U.S. 84, 86 (1985). As provided in the Mining Act of 1872,30 U.S.C. $ 26, "[t]he locators
of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain,
[and] their heirs and assigns . . . so long as they comply with the laws ofthe United States . . .
shall have the exclusive right ofpossession and enjoyment ofall the surface included within the
lines oftheir locations, and ofall veins, lodes, and ledges throughout their entire depth." 30
u.s.c.     $ 26.

        Pursuant to regulations implementing the Mining Act, when an individual discovers a
valuable mineral deposit on federal land, he or she can formally "locate" the mine by staking out
the claim, posting notice at the site describing the area claimed, and recording the notice with the
Bureau of Land Management (BLM). See 43 C.F.R. $ 3832.11. By locating the mine and
complying with regulatory requirements, the claimant asserts a possessory interest in federal land
for mining purposes. Kunkes, 78 F.3d at l55l (citing Locke, 471 U.S. at 86).
        Mines located in a national forest are subject to additional regulation by the United States
Forest Service, which is charged with protecting the surface resources ofthe national forests and
parks. See 16 U.S.C. $ 551; 36 C.F.R. $ 228. ln particular, claimants who wish to undertake
mining operations within the borders of a national forest must submit a "notice of intenf'to
operate with the District Ranger assigned to the area if their operations "might cause significant
disturbance of surface resources." 36 C.F.R. $ 228.4. But a claimant rnay be exempted from the
requirement to file a notice of intent if, among other things, the planned operations: 1) "will be
limited to the use of vehicles on existing public roads or roads used and maintained for National
Forest System purposes;" 2) will consist of "[p]rospecting and sampling which will not cause
significant surface resource disturbance;" 3) will involve "[u]nderground operations which will
not cause significant surface resource disturbance;" or 4) "will not involve the use ofmechanized
earthmoving equipment, such as bulldozers or backhoes, or the cutting oftrees, unless [the
planned operations] otherwise might cause a significant disturbance of surface resources." fo!.
$   228.a(a)(l).
        When a notice of intent to operate is required, it must "provide information sufficient to
identify the area involved, the nature ofthe proposed operations, the route ofaccess to the area
of operations, and the method oftransport." Id. $ 228.a@). Under the regulations, "[t]he District
Ranger will, within 15 days of receipt ofa notice of intent to operate, notifu the operator if
approval ofa plan of operations is required before the operations may begin." Id. $ 228.a(a)(2).
Such a plan will be required ifthe District Ranger concludes the operation "is causing or will
likely cause significant disturbance of surface resoutces." Id. $ 228.4(a)(4). The plan of
operations must identify, among other things, the types ofactivities proposed, the access routes,
the type of transportation the operator intends to use, the period of time operations will be
conducted, and "measures to be taken to meet the requirements for environmental protection."
Id. g 228.4(c)(3).'
        Finally, the regulations require a claimant to submit a proposed plan ofoperations in lieu
ofa notice ofintent to operate if the proposed operations "will likely cause a signiftcant
disturbance of surface resources" or if their cunent operations "are causing a significant
disturbance of surface resources but are not covered by a current approved plan of operations."
Id.

    II.        FactualBackground2

          A.   Chittenden and Hall's Minine Claims

        Gene Chittenden and Allen Hall claim to have discovered mineral deposits located in
lode mines at two locations in the Tahoe National Forest in Sierra County, Califomia. Compl. at
7. The two mines are the Roye Sum lode mine and the Dolliegeek lode mine. Both mines are
accessed through the same entrance (or "portal"). Def.'s Mot. for Summ. J. and Mot. to Dismiss
(Def.'s Mot.) at6 &n.5, ECF No. 16.

        On September 12,2009, Mr. Chittenden and Mr. Hall physically posted a "Lode Mining
Claim Notice" for the Roye Sum mine at its entrance. Def.'s Mot. Ex. 3. A notice was
subsequently filed with the Bureau of Land Management on December 9, 2009, formally
locatins the mine. Id.'




I In particular, mine operators must
                                       "minimize adverse environmental impacts on National
Forest surface resources" by addressing the effects oftheir operations on air quality, water
quality, solid waste, scenic values, fisheries and wildlife habitat, and roads. Id. $ 228.E(a)r'-(f).
Further, "[u]pon exhaustion of the mineral deposit or at the earliest practicable time during
operations, or within I year ofthe conclusion ofoperations . . . [the] operator shall, where
practicable, reclaim the surface disturbed in operations by taking such measures as will prevent
or control onsite and off-site damage to the environment and forest surface resources." Id.
$ 228.8(e).
2
  Except as noted, the facts set forth in this section arc not in dispute and are based upon the
pleadings and the declarations, photographs, and other documentary evidence submitted by the
parties.

3
  Plaintiffs also filed a "Lode Mining Claim Location Notice" for the Dolliegeek mine with the
BLM on March 1,2010. Def.'s Mot. Ex. 14. However, because both mines are accessed through
the single portal in which the Forest Service ultimately installed one ofthe bat gates that are at
issue in this case, the Court will refer to the Roye Sum mine as including both claims.
        B. Installation   of the Bat Gates

        In the spring of2009, the Forest Service proposed to clean up a number of abandoned
mine sites using funds available through the American Recovery and Reinvestment Act of 2009,
Pub. L. No. 11 l-5, $ 604, 123 Stat. 115, 170. Thereafter, on October 8, 2009, the Forest Service
published notice of its intent to "implement mine site reclamation activities that would reduce or
eliminate physical safety hazards, reduce or eliminate on site and offsite erosion, remove
invasive weed species and remove abandoned personal property when responsible parties cannot
be located." Def.'s Mot. Ex. 4. The notice specifically mentioned the Roye Sum lode mine (also
known as the Seymore Quartz mine), which the Forest Service considered an "abandoned
mine.'{ Def.'s MoL Ex. 4.
         Shortly after the notice was published, Mr. Chittenden and Mr. Hall met with Dave
Brown, an Assistant Minerals Officer for the Forest Service, who was responsible for the
management of the Tahoe National Forest and the site reclamation project. Brown Decl. fl 6,
Def.'s Mot. Ex. 1. According to his declaration, Mr. Brown "became aware for the first time that
Plaintiffs Allen Hall and Gene Chittenden claimed an interest in the Roye Sum lode mining
claim." Id. At the meeting, the men discussed the proposed Forest Service site reclamation
project. According to Mr. Brown's declaration, Mr. Chittenden and Mr. Hall "did not raise any
concems at that time." Id. Both Mr. Chittenden and Mr. Hall, however, contest Mr. Brown's
characterization and claim that Mr. Hall specifically asked whether the project would interfere
with the shaft or the drift of the Roye Sum mine. Hall Decl. fl 1, Pls.' Cross-Mot. and Resp. to
Def.'s Mot. for Summ. J. (Pls.' Cross-Mot) Ex. 3, ECF No. 17; Chittenden Decl. ilf l, Pls.' Cross-
Mot. Ex. 2. According to Plaintiffs' description of the meeting, only after Mr. Brown assured
them that "[their] area of interest was not going to be impacted" did Mr. Hall express that they
had no concems about the project. Hall Decl. tf I, Pls.' Cross-Mot. Ex. 3

         In November 2009, the prior claimant of the Roye Sum mine, Bill Slack, reported to the
Forest Service that there was evidence of a bat colony in the mine. Brown Decl. fl 7, Def.'s Mot.
Ex. 1.s In response, on March 1, 2010 the Forest Service's District Biologist emailed Mr. Brown
asking whether he would inquire with the "new claimant" to see "if he is willing to allow a bat
biologist access to his portal to do an assessment." Compl. Ex. 2. The biologist speculated that
"installing a cupola over the air shaft" (which, at the time, was covered by a piece ofsheet metal)
might maintain the bat colony; the email did not mention the possibility of installing a bat gate
across the mine portal. Id. Mr. Brown forwarded the e-mail to Mr. Hall asking for Plaintiffs'
thoughts on the request. Id. That evening, Mr. Hall responded, explaining that "[s]ince it has
been our experience that once a mine becomes active the bats leave it is our feeling that it would
be a waste ofresources to install a [cupola]." Id.




4
  The Forest Service had recorded abandoned structures and personal property at the Roye Sum
mine in 2005. At that time, the Forest Service deemed the mine abandoned, and provided notice
to the prior mine claimant. Brown Decl. tf 4, Def.'s Mot. Ex. l.

s
   Plaintiffs allege that Mr. Slack claimed there were bats in the mine as an act of retaliation
against Mr. Chittenden and Mr. Hall for claiming ownership of the Roye Sum mine. Hall Decl.
tf 4, Pls.' Cross-Mot. Ex. 3; Chittenden Decl. !f 3, Pls.' Cross-Mot. Ex.2.
        On March 18,2010, Mr. Brown again asked if Mr. Hall and Mr. Chittenden would "let[]
a person go into the Seymore portal and survey for bats." Id. Mr. Hall wrote back that, due to a
legal dispute with Mr. Slack regarding their competing claims to the mine, they were waiting for
a court to resolve the matter before entering the Roye Sum mine. As a result, Mr. Hall wrote, "at
this time I cannot give you guys access" and noted that the portal had been locked and he did not
have a key. Id.

        Nevertheless, on July 6, 2010, the District Biologist and the Regional Bat Coordinator
visited the Roye Sum mine and recommended that the Forest Service install bat-friendly gates on
the mine portal and the mine shaft. Def.'s Mot. Ex. 7. Plaintiffs allege that neither of them were
informed that the Forest Service had conducted a bat survey. Hall Decl. tf 7, Pls.' Cross-Mot. Ex.
3. As a result of the survey, the American Recovery and Reinvestment Act site reclamation
project plan was amended to include the installation of the two bat gates. Def.'s Mot. Ex. 7.
According to the govemment, "[t]he purpose ofthe bat gates was to reduce or eliminate physical
safety hazards to the public while preserving bat habitat by allowing bats to enter and exit the
mine." Def.'s Suppl. Br. at 4, ECF No. 27.
        The installation of the two bat gates was completed on October 12,2010. Def.'s Mot. Ex.
8. The bat gate covering the mine shaft was made of five 36-inch steel bars. Beneath the gate, the
Forest Service also installed a short length of36-inch diameter pipe (or "culvert") inside the
mine shaft. The gate across the mine portal was made of four vertical steel bars anchored into a
concrete base and seven horizontal steel bars. Def.'s Mot. at1."In order to provide continued
access into the mine," the horizontal bars were designed to be removable. Brown Decl. tf 9,
Def.'s Mot. Ex. l. In November, 2010, Mr. Brown provided Mr. Hall a key to allow him to
remove the horizontal bars that make up the portal's bat gate so that he could access the mine. Id.
q 10.

        C. The Effect of the Bat Gates on Plaintiffs'      Access to the Mines

        Mr. Chittenden and Mr. Hall claim that the bat gate installed on the portal of the mine
and the bat gate and the culvert installed on the mine shaft "[m]aterially [i]nterfere[]" with their
use ofthe mine. Pls.' Cross-Mot. at 7 (contending that the gates have "destroyed [their] ability to
use the drift and shaft" at the mine). Specifically, Plaintiffs claim that the bat gate at the portal of
the mine prevents them from accessing the mine "with a [w]heelbarrow, the most basic of dirt
moving tools" because the space between the vertical bars of the gate is too narrow. Hall Suppl.
Decl. at2, ECF No. 24. According to Plaintiffs' declarations, the bat gate in the portal also
prevents them from engaging in "mechanized mining" because the bat gate is secured to a
concrete barrier that covers the rail tracks. Id. at 3. These tracks are typically used to guide a
heavy ore cart in or out of the mine; but with the concrete barrier in place, Plaintiffs claim that
they cannot use "modem or basic mining machinery," which "makes the mine not economically
feasible." Id. at 4.
        Moreover, the Plaintiffs allege that the Forest Service made the mine shaft inoperable
when it installed the second bat gate and the culvert. Mine operators, according to Plaintiffs'
declarations, typically use the mine shaft with an ore cart called a "skip" to vertically remove ore
and waste rock from the mine. Id. at 2. However, Plaintiffs argue that the culvert that the Forest
Service installed "completely blocks use of the 'skip."' Id.
        Finally, Plaintiffs allege that the hoisting system in the mine shaft, which consisted ofa
head frame, rail, skip, and cable, was ripped out when the bat gate wasinstalled. They also claim
that the installation ofthe gate destabilized the hillside, resulting in a landslide that covered the
top of the shaft. Pls.' Cross-Mot. at 10-1 1.
        The govemment, on the other hand, emphasizes that Plaintiffs can still access the mine
through the removable gate. Def.'s Mot. Ex. 13. Moreover, the record reflects that Mr. Brown
told Plaintiffs that once they began "stage production mining" (which would require an approved
plan of operations under applicable regulations) "they could remove the gate and [the Forest
Service] would bond them for the reinstallation." Id.

        D. Plaintiffs' Demand that the Gates      be Removed

        According to Mr. Hall, on February 24, 2012,he sent a letter to Mr. Brown demanding
that the Forest Service remove the "closure ofthe portal and the shaft and re-stabliz[e] the
hillside around the [c]ollar of the [s]haft." Hall Decl. at 13. Mr. Hall states that the District
Manager ofthe Yuba River Ranger District ofthe Tahoe National Forest responded to his letter
with an assertion that the bat gates did not interfere with their use ofthe mine, and advised them
that they needed to submit a plan of operations and a bond for the reinstallation ofthe bat gates.
Id. at 13-14.'
        On August 8,2012, Mr. Chittenden and Mr. Hall lodged a claim for property damage
with the Forest Service using the Departrnent ofJustice's Standard Form 95, typically used in
claims arising under the Federal Tort Claims Act. Compl. Ex. 1. After six months elapsed
without a response from the Forest Service, Mr. Chittenden and Mr. Hall filed suit in the United
States District Court for the Eastem District of Califomia on July 8, 2013. Id. at 2; see also
Chittenden v. United States, No. 2:13-cv-1351,2013 WL 6199195, at *1 (E.D. Cal. Nov. 27,
2013).

          Before the district court, Mr. Chittenden and Mr. Hall alleged ten causes of action
 including trespass, negligence, conversion, private nuisance, negligence pq se, and the violation
 of their substantive and procedural due process rights. Compl. at 18, Chittenden, No. 2:13-cv-
 135 1, ECF No. l. The magistrate found that "gravamen of plaintiffs' complaint is that the United
 States' construction ofa bat gate on plaintiffs' mine claim constituted a taking ofplaintiffs'
property in violation ofthe Fifth Amendment by damaging their real property and interfering
 with their ability to use the land for mining." Chittenden, 2013 WL 6199195, at *1. As a result,
the magistrate recommended that the district court dismiss the complaint for lack of subject
 matter jurisdiction as the "Court of Federal Claims has exclusive jurisdiction." Id. at *1-2. On
 January 24,2014,the district court issued an Order dismissing the case for lack of subject matter
jurisdiction. Order at 2, Chiftenden, No. 2:13-cv-1351, ECF No. 21.

    III.   The Present Complaint

      Mr. Chittenden and Mr. Hall filed this action p1q se on July 21, 2014. They "seek
monetary damages for injuries to their real property and violation of [their] Due Process rights


o
 Neither letter has been submitted to the Court in connection with the cross-motions     for
summary judgment.
 both Substantive and Procedural caused by the intentional, tortious, and negligent acts" ofthe
 Forest Service when it installed the bat gates over the shaft and portal of the Roye Sum mine.
 Compl. at 1. Quoting the magistrate's opinion, they also allege that the Forest Service's actions
 resulted in an uncompensated taking under the Fifth Amendment of the Constitution. Id. at 2. In
 support oftheir takings claim they allege that "the Forest Service in installing the closures has
 destroyed [their] ability to use the drift and shaft at the [mine] and has rendered the mine[]
 unworkable in [its] present condition." Id. at 11. As a result, and in light of Plaintiffs' estimated
 valuation of the Roye Sum mine, Mr. Chittenden and Mr. Hall request $50,000,000 in damages.
 Id. at 15.
         The govemment has moved to dismiss Plaintiffs' tort and due process claims for lack of
 subject matter jurisdiction and requested summary judgment on Plaintiffs' takings claim. Def.'s
 Mot. at 4. Mr. Chittenden and Mr. Hall have responded with a cross-motion for summary
judgment, arguing that the installation ofthe bat gates "rendered the mine closed and completely
 inoperable." Pls.' cross-Mot. at 14. on october 28,2015,the court requested that the parties file
supplemental briefs regarding the proper standard of proofto apply to plaintiffs' takings claim,
and clarification regarding the extent to which the bat gates interfere with Plaintiffs' abiliry to
perform certain mining activities. See order, ECF No. 21. Those briefs have been filed and the
case is now ready for disposition on the parties' cross-motions.

                                            DISCUSSION

    I.      Motion to Dismiss under RCFC 12(bxl)

         A. Standard for Motion     to Dismiss for Lack of Jurisdiction

          In deciding a motion to dismiss for lack of subject matter j urisdiction, the court accepts as
 true all undisputed facts in the pleadings and draws all reasonable inferences in favor of the
 plaintiff. Trusted Inteqration. Inc. v. united states, 659 F.3d 1 159, 1163 (Fed. cir. 2011). The
 court may "inquire into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v.
 united states, 933 F.2d 991,993 (Fed. cir. l99l). It may therefore consider matters outside of
 the pleadings in ruling on a motion to dismiss pursuant to RCFC l2(bxl). See Reynolds v. Army
 and Airforce Exch. Serv. , 846 F.2d 746,747 (Fed. Cir. 1988) (finding thar to determine
jurisdiction the "court may consider relevant evidence in order to resolve the factual dispute").

        It is well established that complaints that are filed by pro se plaintiffs are held to "less
stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,404 u.s. 519,
520 (1972). Nonetheless, even p1q se plaintiffs must persuade the court that jurisdictional
requirements have been met. Bemard v. United States, 59 Fed. Cl. 497, 499 (2004), affd, 9g
Fed. App'x 860 (Fed. Cir.2004).

         B. Application   of Standard

        Under the Tucker Act, this court is granted jurisdiction to "renderjudgment upon any
claim against the united states founded . . . upon the constitution . . . for liquidated oi
unliquidated damages in cases not sounding in tort." 28 u.s.c. $ 1a9l(a)(l). The Tucker Act
waives the sovereign immunity of the united States to allow a suit for money damages, United
states v. Mitchell, 463 u.s. 206,212 (1983), but it does not confer any substantive iightr on u
    plaintifl, UnitedStates v. Testan,424 U.S.392,398 (1976). Therefore, a plaintiffseeking to
    invoke the court's Tucker Actjurisdiction must identify an independent source of a substantive
    right to money damages from the United States arising out ofa contract, statute, regulation or
    constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin. , 525 F.3d 1299,
    1306 (Fed. Cir.2008).

          The Court ofFederal Claims has jurisdiction under the Tucker Act "to the extent the
 [plaintiffhas alleged] a nonfrivolous takings claim founded upon the Fifth Amendment." Moden
 v. United States, 404 F.3d 1335,1341 (Fed. Cir. 2005). Thus, so long as such a claim is not "so
 insubstantial, implausible, foreclosed by prior decisions, or otherwise completely devoid of merit
 as not to involve a federal controversy," the court should hear the complaint. Id. at 1340 (quoting
 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998)).

         In this case, Plaintiffs have alleged a non-frivolous claim to just compensation under the
Fifth Amendment. Plaintiffs claim that the govemment "damage[ed] their real property and
interfer[ed] with their ability to use the land for mining," and that these actions constituted a
taking of their propeny within the meaning of the Fifth Amendment. Compl. at 2 (quoting
Chittenden, 2013 WL 6199195, at *l). Therefore, this Court has jurisdiction under the Tucker
Act to hear their takings claim.

        On the other hand, the Court lacks jurisdiction over Plaintifls' claims that their rights to
procedural and substantive due process have been violated. Compl. at l. As the Federal Circuit
has explained, the Due Process Clause does not "mandate money damages by the Government.',
Smith v. United States, 36 Fed. App'x 444,446 (Fed. Cir.2002) (citing LeBlanc v. United
States,50 F.3d 1025, 1028 (Fed. Cir. 1995)).

         Finally, in their complaint, Plaintiffs claim that the Forest Service .,intentionally,
 negligently and [tortiously]" damaged their private property. compl. at l. As set forth above, the
 Court's jurisdictional statute explicitly excludes tort claims from its coverage. 28 U.S.C.
 $ 1491(a)(l) (excluding claims sounding in tort from the court of Federal claims' Tucker Act
jurisdiction); see also Keene Com. v. United States, 508 U.S. 200,214 (1993) (finding that.,tort
 cases are outside thejurisdiction ofthe court of Federal claims"). Therefore, the court lacks
jurisdiction to hear Plaintiffs' claims for damages to the extent that they are based on negligence
or any intentional tort, rather than the Fifth Amendment's Takings Clause.

        Accordingly, because the Tucker Act does not provide this court jurisdiction to hear
Plaintiffs' tort or due process claims, the govemment's motion to dismiss these claims is
GRANTED.T


7
  Plaintiffs request that the Court transfer their tort and due process claims to the Eastem District
of california. Pls.' cross-Mot. at 19--20. The transfer statute provides that "[w]henever a civil
action is filed in a court . . . and that court finds that there is a want ofjurisdiction, the court
shall, if it is in the interest ofjustice, transfer such action . . . to any other such court in which the
action . . . could have been brought at the time it was fited." 28 u.s.c. $ 163l. "A compelling
reason for transfer is that the [litigant], whose case iftransferred is for statute of limitations
purposes deemed by section 1631 to have been filed in the transferor court . . . will be time-
barred if his case is dismissed and thus has to be filed anew in the right court." Texas peanur
    II.        Motion for Summary Judgment Under RCFC 56

          A.   Standard for Summarv Judsment

         In accordance with RCFC 56(a), summary judgment may be granted "if the movant
 shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." See Celotex Com. v. Catrett,477 U.5.317,322 (1986). A fact is
 material if it "might affect the outcome of the suit under the goveming law." Anderson v. Libertv
 Lobby. Inc., 477 U.5.242,248 (1986). An issue is genuine if it "may reasonably be resolved in
 favor of either party." Id. at 250.

        The moving party bears the burden of "identifying" the absence ofany genuine issue of
material fact, Celotex, 477 U.S. at 323, and all signihcant doubts regarding factual issues must
be resolved in favor of the party opposing summary judgment, Minqus Constructors. Inc. v.
United States, 8l2F.2d 1387, 1390 (Fed. Cir. 1987). Once the moving party has satisfied its
initial burden, the opposing party must establish a genuine issue of material fact and cannot rest
on mere allegations, but must present actual, material evidence. Anderson, 477 U.S. at 248.
Summary judgment is mandated "after adequate lime for discovery and upon motion, against a
party who fails to make a showing suf{icient to establish the existence ofan element essential to
that party's case, and on which that party will bear the burden of proof at trial." Celotex,477 U.S
at322.

          B. Fifth Amendment Takines Claims
               1.   Fifth Amendment Standards

        The Fifth Amendment to the Constitution provides in pertinent part that "private property
[shall not] be taken for public use without just compensation." U.S. Const. amend. V. "The
purpose ofthis prohibition is to prevent [the] 'Govemment from forcing some people alone to
bear public burdens which, in all faimess and justice, should be bome by the public as a whole."'
Am. Pelaqic Fishins Co.. L.P. v. United States,379 F .3d 1363, 1371 (Fed. Cir. 2004) (quoting
Penn Cent. Transp. Co. v. United States,438 U.S. 104,123 (1978).

       The Federal Circuit uses a two-part test to determine whether a compensable taking has
occurred. First, the court analyzes "whether the plaintiff possesses a valid interest in the property

Farmers v. United States, 409 F.3d 1370,1374 (Fed. Cir. 2005) (quoting Phillips v. Seiter, 173
F.3d 609, 610 (7th Cir. 1999). Although Plaintiffs allege that there is a risk that their tort and
due process claims will be dismissed as untimely if this Court does not transfer them, the
limitations period for actions against the United States is six years. 28 U.S.C. g 2401(a). The
Forest Service installed the bat gates in October 2010. Plaintiffs filed a timely administratrve
claim on August 8, 2012. It is unclear whether the agency ever acted on the claim. If it did, then
the limitations period would not expire until six years after that action was taken-in other
words, no earlier than August 2018. And the limitations period for Plaintiffs' due process or any
other legal claims against the United States will not expire until October 2016 at the earliest.
Accordingly, the Court concludes that a transfer would not be in the interest ofiustice.
 affected by the govemmental action, i.e., whether the plaintiffpossessed a 'stick in the bundle of
 property rights."' Karuk Tribe of Cal. v. Ammon,209 F.Jd 1366,1374 (Fed. Cir. 2000). Second,
 "the court must determine whetler the govemmental action at issue amounted to a compensable
 taking of that property interest." Am. Pelasic Fishins Co.,379 F.3d at 1372; see also Estate of
 Haee v. United States,687 F.3d 1281,1286 (Fed. Cir.2012), cert. denied,l33 S. Ct.2824
 (2013); Members of Peanut Ouota Holders Ass'n v. United States,421 F.3d 1323, 1330 (Fed.
 Cir. 2005), cert. denied, 548 U.S. 904 (2006).

         "Real property, see Lucas v. S.C. Coastal Council,505 U.S. 1003 (1992), tangible
 property, see Andrus v. Allard, 444 U.S. 51, 65 (1979), and intangible property, see Ruckelshaus
 v. Monsanto Co.,467 U.5.986, 1003-04 (1984), all may be the subject of takings claims."
 Maritrans Inc. v. United States,342F.3d 1344, 1151(Fed. Cir. 2003). "In assessing whether or
 not a Fifth Amendment property interest exists, we look for 'crucial indicia of a property right,'
 such as the ability to sell, assign, transfer, or exclude." Hearts BluffGame Ranch. Inc. v. United
 States, 669 F.3d 1326,1330 @ed. Cir.2012) (quoring Conti v. Unired States ,291 F.3d 1334,
 1342 (Fed. Ctu. 2002)).

        A "taking" can be effected based on physical appropriation ofproperty by the
govemment or through govemment regulation that goes "too far" and overly restricts the use of
property. Home v. Department of Asricultue, 135 S. Ct. 2419,2427 (2015); see also yee v. City
of Escondido, 503 u.s. 519, 522-23 ( 1992) (describing "two distinct classes" of takings: (l )
physical occupation ofproperty; and (2) regulation of the use ofproperty); Acceptance Ins. cos.
v. united states, 583 F.3d 849,854 (Fed. cir. 2009) ("A 'taking' may occur either by physical
invasion or by regulation."); Huntleish usA com. v. united states,525 F.3d 1370, l37g (Fed.
Cir. 2008) ("A compensable taking can occur not only through the govemment,s physical
invasion or appropriation ofprivate property but also by govemment regulations that unduly
burden private property interests." (citation omitted)).

        Although "the govemment may take private property by either physical occupation or
regulation . . . these two categories of takings are subject to different analyses.' Tuthill Ranch.
Inc. v. United States, 381 F.3d 1132, 1135 (Fed. cir. 2004). The analysis employed wirh respect
to cases involving a physical occupation, "for the most part, involves the straightforward
application ofpqgs rules." Tahoe-Siena Pres. council. Inc. v. Tahoe Req'l planning Aeency,
535 U.S. 302,322 (2002); see also Yee, 503 U.S. at 523 (*The first category ofcases requires
courts to apply a clear rule . . . ."). "[R]egulatory takings jurisprudence," on the other hand, ..is
characterized by 'essentially ad hoc, factual inquires,"' Tahoe-Siena pres. corurcil. Inc., 535
U.S. at 322 (quoting Penn Cent. Transp. Co., 438 U.S. aL l24), and, is ..designed to all,ow ,careful
examination and weighing of all the relevant circumstances,"' id. (quoting Falazzolo v. Rhode
Island, 533 U.S. 606, 636 (2001) (O'Connor, J., concurring)); see also yei, SO: frS. at SZ:
("[T]he second [category ofcases] necessarily entails complex factual assessments of the
purposes and economic effects of govemment actions.").

           2.   Property Interest

         As described above, under the Mining Act and related legislation, private parties may
acquire "exclusive possessory interests in federal land for mining putpor"r, interests which
entitle claim holders to extract and sell minerals without paying royaliies to the Govemment."



                                                 t0
Kunkes,78 F.3d at 1551 (citing Locke,471 U.S. at 86). But "[a]lthough unpatented mining
claims are'fully recognized possessory interests,' they partake more ofthe character ofuse
rights." Id. at 1554 (quoting Locke, 471 U.S. at 107). "These possessory mineral interests are
known as 'unpatented' claims to distinguish them from the ownership interest ofthe private
owner who has obtained a 'patent,' that is, an official document issued by the United States
attesting that fee title to the land is in the private owner." Id. at 1554.

         Unpatented mining claims are "valid against the United States ifthere has been a
discovery of mineral within the limits of the claim." Best v. Humboldt Placer Mining Co.,37l
U.S. 334, 336 (1963); see also Chrisman v. Miller, 197 U.S. 313,322 (1905) (to be valid, a
mining claim must be of such a character that "a person ofordinary prudence would bejustified
in the further expenditure of his labor and means, with a reasonable prospect of success, in
developing a valuable mine"). It is well established that such a valid unpatented mining claim
constitutes property protected by the Fifth Amendment against an uncompensated taking.
Kunkes, 78 F.3d at 1551 (citing Best, 371 U.S. 334); see also Skaw v. United States ,740 F .2d
932,936 (Fed. Cir. 1984).
        The Bureau of Land Management is vested with the authority to determine whether an
unpatented mining claim is "valid" against the United States. Freeman v. United States, 83 Fed.
Cl. 530, 533 (2008) C'[A] validity determination of the mining claims is necessary to establish a
compensable property interest, and a compensable property interest is a necessary element ofa
Fifth Amendment takings claim."); Holden v. United States, 38 Fed. Cl. 732,735 (1997)
(holding that "to have a compensable interest in unpatented mining claims suffrcient to bring a
taking action in this Court, there must have been a determination as to the validity ofthose
mining claims" and that "[t]he determination of the validity of such claims is entrusted to the
BLM") (emphasis in original); Payne v. United States, 3l Fed. CL.709,711 (1994) ("Congress
has given the Depaxtment of Interior the power in the first instance to inquire into the validity of
mining rights claimed against the Govemment.").
        In this case, BLM has not made a validity determination with respect to Plaintiffs' claims.
Because such a validity determination is a pre-requisite to finding that Plaintiffs possess a
property interest within the meaning of the Fifth Amendment, and b€cause BLM is entrusted
with primary jurisdiction over such determinations, Plaintiffs have failed to submit sufficienr
evidence to establish that they possess a cognizable property interest in their mining claims.
Therefore, Plaintiffs' motion for summary judgment must be denied.

           3.   Taking

        In previous cases before the Court ofFederal Claims where, as here, the BLM had not yet
validated a plaintiff s mining claim, the court has either dismissed the takings claim or stayed the
case in order to allow validity proceedings to take place. See. e.q., Vane Minerals (US). LLC v.
uniled states, 1 l6 Fed. cl. 48,62 (2014) (dismissing for failure to state a claim); Hall v. United
States,84 Fed. CI.463, 471-72 (2008) (Cranting stay); Freeman v. United States,83 Fed. Cl.
530, 532-33 (2008) (staying the case pending validity proceedings); payne v. United States, 31
Fed. Cl. 709, 712 (1994) (same). In this case, the govemment wges the Court to do neither.
Rather, the govemment asks the Court to assume for purposes of deciding its motion for
summary judgment that Plaintiffs' claims are valid. Def.'s Mot. at 3. It further reouests that the



                                                l1
    Court enter summary judgment in its favor on the grounds that, as a matter of law, the
    installation ofthe bat gates did not result in a taking ofany property interest Plaintiffs have in
    their unpatented mining claims. Id. at 2.

            The Coud agrees that, even assuming the Plaintiffs claims are valid, summary judgment
    in favor ofthe govemment is appropriate in this case. As described above, the owner ofan
    unpatented mining claim does not have a fee simple interest in the land itself; rather, he has a
    possessory interest in the minerals that are within the limits of his claim and a right to use the
    land for mining purposes. See Best, 371 U.S. at 335-36; Freese v. United States, 6 Cl. Ct. l, 14
    (1984). Thus, while a valid unpatented mining claim bestows a property interest for purposes of
    the Fifth Amendment's Takings Clause, an individual's property interest in their valid,
    unpatented mining claim is subject to the govemment's authority to impose reasonable
    regulations. Locke,471 U.S. at 105. Claimants "must take their mineral interests with the
    knowledge that the Govemment retains substantial regulatory power over those interests." Id.

          Where, as here, a mine is located in a national forest, a mining claimant's property
 interest is subject to its compliance with regulations goveming mining operutions that are issued
 by the United States Forest Service. Aloisi v. United States, 85 Fed. Cl. 84,92 (2008) (noting
 that the "Forest service has the ultimate authority to approve or reject proposals to conduct
 mining operations in the national forests"); see also 16 u.s.c. $ 551 (giving the Secretary of
 Agriculture authority to promulgate rules and regulations to protect the national forests); 30
 u.s.c. $ 612(b) (mining claims are "subject, prior to issuance ofpatent therefor, to the right of
 the United states to manage and dispose ofthe vegetative surface resources thereof and to
 manage other surface resources thereof(except mineral deposits subject to location under the
mining laws of the united states)"); Pub. Lands for the people. Inc. v. U.S. Dep't of Agric., 692
F.3d 1192, I 197 (9th cir. 2012) (rejecting arguments of mine claim holders that the Forest
Service lacked authority to restdct their use of motor vehicles to access their mining claims
pending approval ofplan ofoperations and noting that "[t]he Forest Service's extensive starumry
authority dooms this challenge"); Clouser v. Espy , 42 F .3d 1522, lS31 (9th Cir. 1994)
(upholding the Forest Service's authority to regulate mining activity within national forests7;
Freese, 6 cl. ct. at 14 (claimants' rights to use land in a national forest for mining purposes are
"subject to the superior right of the United States to regulate uses ofthe surface resources within
the fNational Forest]").

        In this case, the Forest Service was ostensibly exercising its statutory authority to
maintain and protect the swface resources ofthe Tahoe National Forest when, in order to protecr
wildlife and promote public safety, it installed bat gates on the portal and shaft ofthe Roye Sum
mine. see Def. Suppl. Br. at 4 ("The purpose ofthe bat gates was to reduce or eliminate physical
safety hazards to the public while preserving bat habitat by allowing bats to enter and exit the
mine.").8 The exercise of this authority could effect a compensable iaking only if, by installing

8
 To the extent that Plaintiffs claim that the Forest Service exceeded its statutory authority under
30 u.s.c. $ 612(b) when it installed the bat gates, see pls.' cross-Mot. at 12,the court cannot
entertain that claim. As the Federal Circuit has ruled, "an uncompensated taking and an unlaw{11


                                                    t2
 the bat gates, the Forest Service either "physically appropdated" or "denied [Plaintiffs]
 meaningful access" to their mining claims. Washoe Cty.. Nev. v. United States, 319 F.3d 1320,
 1327 (Fed. Cir. 2003) (holding that where the govemment "neither physically diverted or
 reduced the amount of water accessible by Appellants nor denied all meaningful access to their
 water rights, it did not effect a physical taking"); see also Foster v. United States,607 F.2d 943,
 950 (Ct. Cl.1979) (finding a taking of mineral rights attached to air force base property where
 "[i]n order to quarry the dolomite, plaintifls would require the use of military reservation   roads
 to which defendant has indicated that no access would be allowed due to its detrimental impact
 on base operations").

          It is undisputed in this case that the govemment has not physically appropriated any
 minerals that might lie within the boundaries of Plaintiffs' mining claims. Further, because
 Plaintiffs' mining claims are unpatented, they have no ownership interest in the land on which
 those claims are located. The Forest Service's placement ofthe bat gates on the portal and shaft
 of the mine therefore does not constitute the kind ofphysical occupation ofan owner's property
 that the Supreme court held constituted a pg1 se taking in Loretto v. Teleprompter Manhattan
 CATV Com., 458 U.S. 419,432 (1982';

        Further, the undisputed facts in the record establish that the installation ofthe bat gates
has not denied the Plaintiffs meaningful access to their mining claims. As noted, plaintiff s
property interest in their claims is subject to the Forest Service's mining regulations. And, as
discussed, the regulations require that claimants submit a "notice of intent" to operate iftheir


 govemment action constifute 'two separate wrongs [that] give rise to two separate causes of
 action."' Rith Enersl'. Inc. v. United Stares ,247 F.3d 1355, 1365 (Fed. Cir. 2001) (alteration in
 original) (quoting Del Rio Drilline Prosrams. Inc. v. United states, 146 F.3d 135g, 1364 (Fed.
 Cir. 1998)); see also Lion Raisins. lnc. v. United Stares,4l6 F.3d 1356, 1369-70 (Fed. Cir.
 2005) (distinguishing "between the valid exercise ofthe court of Federal claim's
                                                                                       [sic]
jurisdiction over a takings claim when the claim was that 'property was taken reqardless of
 whether the agency acted consistently with its statutory and regulatory mandate' and the bar to
 such jurisdiction when'the plaintiff claims it is entitled to prevail because the agency acted in
violation ofstatute or regulation"' (quoting Rith, 247 F.3dat 1366))). Because plaintiffs brought
 suit in this Court, alleging a taking, the court must assume that the Forest Service acted within
its statutory authority when it installed the bat gates. Del-Rio Drilline, 146 F.3d at 1363-64; see
also Tabb Lakes. Ltd. v. United States, l0 F.3d 796,902 (Fed. Cir. 1993) (holding that a
"claimant must concede the validity of the govemment action which is the basis of the taking
cfaim to bring suit under the Tucker Act"); Rith,247 F.3d at 1365 (observing that ..a propeny
owner is free either to sue in district court for asserted improprieties committed in the course of
the challenged action or to sue for an uncompensated taking in the court of Federal claims',); cf.
united states v. curtis-Nevada Mines. Inc. , 6ll F .2d 1277 , 1286 (9th cir. 1 980) (mining
claimant who believes surface use materially interferes with mining within the meaning of
section 612(b) "can protest to the managing federal agency about public use which results in
material interference and, ifunsatisfied, can bring suit to enjoin the activity").



                                                 l3
 operations "might cause significant disturbance of surface resources." See 36 C.F.R. $ 228.4.It
 is undisputed that Plaintiffs have declined to submit such a notice for review.e Accordingly,
 under the regulations, they cunently may engage only in a limited set of activities (i.e., those that
 will not cause a significant surface disturbance). See id. Specifically, Mr. Chittenden and Mr.
 Hall may access the mine to prospect and sample for mineral deposits, as permitted by 36 C.F.R.
 $ 228.4(a)(1)(ii). Further, Plaintiffs cannot curently engage in any operations that would require
 the use ofa motor vehicle because the road leading to the mine portal is not designated for
 motorized use absent prior written authorization, which the Forest Service grants as part of the
 plan of operations approval process. Brown Suppl. Decl. fl 7, Def.'s Suppl. Br. Ex. l.

         The bat gates do not deny Plaintiffs meaningful access to the mine for purposes of
 conducting the permitted activities. As explained, the gate across the mine portal has removable
 bars that were designed to allow Plaintiffs access to the mine. Mr. Brown asserts that, based on
his experience as an Assistant Minerals officer and his personal knowledge of the bat gates
installed at the mine portal and shaft, "the bat gates cunently installed do not prevent Mr.
Chittenden and Mr. Hall from performing underground operations that will not cause a
significant surface resource disturbance." Id. fl 13. Mr. Brown asserts that prospecting and
sampling generally "will not involve removal of more than a reasonable amount of mineral
deposit for analysis and study which generally might include searching for and occasionaly


v
    Plaintiffs' refusal to submit
                                a plan ofoperations is apparently based upon their beliefthat the
Forest Service has no statutory authority to require one. See chittenden Decl. fl 7, pls.' cross-
Mot. Ex. 2 (acknowledging that it was true that Plaintiffs had not submitted a plan of operations,
and explaining that "[i]n the three years I have been studying mining law I have come io realize
that nowhere is the Forest service granted the authority to manage minerals"). They contend that
"all phases of underground mining, [i.e.,] drilling, blasting, and mucking out . . . are [exempt]
from a Plan of operations" because "the Forest Service [has no] authority underground."
chittenden suppl. Decl. fl 7, ECF No. 23. They maintain that 36 c.F.R. $ 224.8(a)(1)(iv) permits
all underground activity because the Forest service is limited to "[managing] the .vegetative
surface. "' Chittenden Decl. tf 7, Pls.' Cross-Mot. Ex. 2.

The Plaintiffs' challenge to the Forest Service's authority to require them to submit a plan of
operations is ofdubious merit, given the breadth ofthe secretary of Agriculture's statutory
authority to promulgate "reasonable rules and regulations which will protect the national forests
and which will help to carry out the purposes for which the national forests were created.', see
united states v. weiss,642 F.2d,296,298 (gth cir. lggl); see also United states v. Doremus,
888 F.2d 630,632 (9th cir. 1989) (holding that "[t]he regulatory scheme ofrequiring:a notice of
intent to operate and approval of an operating plan is a reasonable method of adminiitering the
statutory balance between 'the important interests involved here [which] were intended to and
can coexist"' (quoting weiss, 642F.2d at 299 (second alteration in original))). In any evenr, any
challenge to the legitimacy of the Forest Service's demand that plaintiffs submit a oian of
operations must be pressed either through a suit in district court under the Adminisirative
Procedures Act, 5 U.s.c. $$ 701-{6, or by pursuing the matter through the Forest Service's
appeal procedure, see 36 C.F.R. g 214.4(b); Curtis-Nevada Mines. Inc.,6ll F.2d at 1296.



                                                 14
 removing small mineral samples or specimens, gold panning, metal detecting, non-motorized
 hand sluicing, using battery operated dry washes, and collecting of mineral specimens using
 hand tools." Id. fl 8; see also id. fl 9 (describing "non surface disturbing mining activities" as
 consisting of "underground exploration activities, including chip sampling, metal detecting, and
 the use ofhand tools such as shovel, chisel, rock, pick and hammer").

         In their declarations, Mr. Chittenden and Mr. Hall do not assert that the bat gates prevent
them from engaging in prospecting and sampling. Instead, they assert that the opening of the bat
gate "is too small to admit a wheelbarrow through it," "the most basic of dirt moving tools."
Chittenden Suppl. Decl. !f l. Mr. Chittenden also notes that the concrete foundation that supports
the bat gate across the portal covers the rails used to allow an "ore cart [to] enter or exit the
mine." Id. fl 5; see also Chittenden Decl. fl 5, Pls.' Cross-Mot. Ex. 2 (claiming that the opening
through the bat gate is "too narrow to take in an Ore car, a slusher, a mucking machine, or a
timber car . . . . [t]ools very necessary for mining"). Finally, Plaintiffs explain that because ofthe
installation ofthe bat gates, they are prevented from installing and using mining equipment and
are thercfore "unable to operate the mines." Pls.' Cross-Mot. at 16-17.

        These factual assertions are insufficient to show that a taking has already occuned
because they do not establish that the bat gates have prevented Plaintiffs from exercising their
current rights to prospect, sample, or engage in similar activities that will not significantly
disturb surface resources. And to the extent that the Plaintiffs intend to press a takings claim that
is based on the theory that the bat gates would prevent Plaintiffs from engaging in mechanized
mining operations, that claim is not ripe for review at this time because--without an approved
plan of operations-it is impossible to know what activities (if any) will be permitted and what
impact (if any) the gates will have on those activities. See Palazzolo, 533 U.S. at 618-19 (takings
claim not ripe where jurisprudential factors for determining a taking "cannot be resolved in
definitive terms until a court knows 'the extent of [the] permitted development"' (quoting
MacDonald. Sommer & Frates v. Yolo Countv,477 U.5.340, 351 (1936)). In addition, the
Forest Service has agreed to work with Plaintilfs on a plan to remove the gates once there is an
approved plan ofoperations in place, subject to Plaintiffs' compliance with the regulatory
requirement that they post a bond for their reinstallation after their mining operations end. Def.'s
Mot. Ex. 13.

         In short, while Plaintiffs may ultimately be required to incur additional expense to post a
bond that will fund the restoration ofthe gates at the conclusion oftheir mining activities, the
installation ofthe bat gates "has not deprived [Plaintiffs] ofthe ability to develop the[ir] claims."
Freese, 6 cl. ct. at 14. Mr. chittenden and Mr. Hall 'may still develop
                                                                           [their] valid mining
claims any way [they] see[] fit," provided they comply with applicable Govemment regulations.
Id. Therefore, even assuming that Plaintiffs have a property interest in their unpatented mining
claims, there has been no taking of that interest within the meaning of the Fifth Amendment, and
the govemment is entitled to summary judgment as to Plaintiffs' Fifth Amendment Taking
claims.




                                                 15
                                 CONCLUSION

For the foregoing reasons:

l.     The govemment's motion to dismiss Plaintiffs' tort and due process claims is
       GRANTED and those claims are dismissed without prejudice; and

2.     The govemment's motion for summary judgment as to Plaintiffs'      Fifth
       Amendment takings claim is GRANTED; and

3.     Plaintiffs' cross-motion for summary judgment is DENIED.
The Clerk is directed to enter judgment accordingly. Each side shall bear its own costs.



IT IS SO ORDERED.

                                                         /L
                                                'L
                                             ELAINED. KAPLAN
                                             Judge, U.S. Court of Federal Claims




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