669 F.3d 1326 (Fed. Cir. 2012), 2010-5164, Hearts Bluff Game Ranch, Inc. v. United States

Docket Nº:2010-5164.
Citation:669 F.3d 1326
Opinion Judge:LOURIE, Circuit Judge.
Party Name:HEARTS BLUFF GAME RANCH, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Attorney:Terry L. Jacobson, Jacobson Law Firm, P.C., of Corsicana, Texas, argued for plaintiff-appellant. With him on the brief was Steven Gregory White, Naman, Howell, Smith & Lee, PLLC, of Waco, Texas. Tamara N. Rountree, Attorney, Environment & Natural Resources Division, United States Department of Ju...
Judge Panel:Before NEWMAN, LOURIE, and LINN, Circuit Judges.
Case Date:January 19, 2012
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1326

669 F.3d 1326 (Fed. Cir. 2012)

HEARTS BLUFF GAME RANCH, INC., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

No. 2010-5164.

United States Court of Appeals, Federal Circuit.

January 19, 2012

Page 1327

Terry L. Jacobson, Jacobson Law Firm, P.C., of Corsicana, Texas, argued for plaintiff-appellant. With him on the brief was Steven Gregory White, Naman, Howell, Smith & Lee, PLLC, of Waco, Texas.

Tamara N. Rountree, Attorney, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Ignacia S. Moreno, Assistant Attorney General, Frank J. Singer and Kathryn E. Kovacs, Attorneys.

Before NEWMAN, LOURIE, and LINN, Circuit Judges.

LOURIE, Circuit Judge.

Hearts Bluff Game Ranch, Inc. (" Hearts Bluff" ) appeals from the decision of the United States Court of Federal Claims (the " Claims Court" ) dismissing its claim for just compensation under the Fifth Amendment for an alleged taking based on the Army Corps of Engineers' (the " Corps" ) denial of Hearts Bluff's proposal to operate a mitigation bank on its property. Hearts Bluff Game Ranch, Inc. v. United States, No. 09-498L (Ct. Cl. June 11, 2010) (the " Order" ). Because Hearts Bluff did not have a cognizable property interest in obtaining a mitigation banking instrument, we affirm.

BACKGROUND

Hearts Bluff purchased approximately 4,000 acres of land in Titus County, Texas, for use as a mitigation bank. Id. at 3. A mitigation bank is an offset of preserved and restored wetlands used to compensate for the environmental impact of more destructive land use. See Final Guidance for the Establishment, Use and Operation of Mitigation Banks, 60 Fed.Reg. 58605, 58607 (Nov. 28, 1995). Mitigation banking allows landowners who would develop areas protected by pollution-control laws to do so notwithstanding those laws if they protect or improve similar areas in other parts of the country. Landowners can apply for mitigation banking instruments to participate in the program, and then can sell credits under the instrument to developers to offset environmentally destructive projects covered by section 404 permits under the Clean Water Act. See 33 U.S.C. § 1344. The Corps is in charge of the mitigation banking program and it has issued regulations to establish procedures for granting instruments for mitigation banks. One of the requirements of that mitigation bank program is that property held in the mitigation bank must be capable of being held in perpetuity.

Hearts Bluff contacted the Corps prior to purchasing its land, seeking assurances that the land would be suitable for mitigation banking. Order, at 3. At the time, the Marvin Nichols Reservoir had been proposed for the region where the 4,000 acres were located, but the Corps communicated that it then saw no impediments to creating the mitigation bank. Id. But in 2004, the Corps gave public notice of Hearts Bluff's application, following which the Texas Water Development Board announced that the Reservoir would become less viable (if not infeasible) if the mitigation bank were approved. Id. After the 2004 notice, the water plan for the Marvin

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Nichols Reservoir was elevated from a potential site to " unique value" status, and the Corps learned that the Reservoir was to be adopted in the 2007 State Water Plan with a recommendation that it be constructed. Id. at 3-4. The Corps then denied Hearts Bluff's application in July 2006 because the mitigation bank overlapped with the proposed Reservoir and it concluded that Hearts Bluff's land might not exist in perpetuity. Id.

Hearts Bluff sought reconsideration of the July 2006 ruling, which the Corps denied in July 2008. Id. Hearts Bluff then brought suit in state court, alleging, in part, a Fifth Amendment takings claim against the United States government. That suit was later removed to the U.S. District Court for the Western District of Texas. The takings claim was then subsequently transferred to the Claims Court for trial under the Tucker Act, 28 U.S.C. § 1491(a)(1). Hearts Bluff asserted that the government, acting through the Corps, took its property when the Corps denied it the necessary permit to create a mitigation bank.

The Claims Court dismissed the complaint for failure to state a claim. The court held that Hearts Bluff did not have a property interest that could be subject to a Fifth Amendment taking because a mitigation banking instrument is not " an inherent stick in a landowner's bundle." Id. at 5. The court noted that no landowner has the capacity to develop a mitigation bank absent the enabling regulations and approval of the Corps of Engineers. Id. at 6. The court also rejected the argument that Hearts Bluff had an " investment-backed reliance" property interest that was taken, because Hearts Bluff had merely been deprived of a hope that it could create a mitigation bank, which is a collateral interest, not a compensable property interest. Id. at 7-8. The court did not reach the merits of the takings claim. Hearts Bluff timely appealed.

DISCUSSION

I.

We review a decision by the Court of Federal Claims to dismiss a complaint for failure to state a claim upon which relief could be granted under RCFC 12(b)(6) de novo. See Acceptance Ins. Cos. v. United States, 583 F.3d 849, 853-54 (Fed.Cir.2009). To avoid dismissal for failure to state a claim, a complaint must allege facts " plausibly suggesting (not merely consistent with) a showing of entitlement to relief." Id. at 853 (citations and quotations omitted). A court, however, is " not bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106...

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