Berry v. United States
| Decision Date | 18 May 2022 |
| Docket Number | 21-1017L |
| Parties | HOLLY BERRY, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Plaintiff Holly Berry, a landowner in Oklahoma, brings this Fifth Amendment takings claim related to a gaming facility built by the Cherokee Nation ("Nation") on land held in trust by Defendant. This trust land is located next to Plaintiff's property, and, according to Plaintiff, its development caused repeated flooding, erosion, and impoundment of water on her land. Defendant moved to dismiss the Amended Complaint for failure to state a claim under Rule 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"). As explained below, because Plaintiff has failed to state a viable takings claim Defendant's motion to dismiss is GRANTED and its previous motion to dismiss is DENIED AS MOOT.
Plaintiff owns land in Tahlequah, Oklahoma. Pl.'s Am. Compl. ¶¶ 7, 15, ECF No. 7; Ex. A to Pl.'s Am. Compl., ECF No. 7-1; Ex. B to Def.'s Mot. to Dismiss Pl.'s Am. Compl., ECF No. 9-2. Plaintiff alleges that Defendant, utilizing its statutory authority under 25 U.S.C. § 5108 (the Indian Reorganization Act or "IRA"), took land adjacent to Plaintiff's property ("the Site") into trust for the Nation, which had proposed to develop and operate a gaming facility. ECF No. 7 ¶ 8.
On January 19, 2017, Defendant issued a letter approving the Nation's application for Defendant to acquire the Site in trust. Id. ¶ 11; Ex. A to Def.'s Mot. to Dismiss Pl.'s Am. Compl., ECF No. 9-1. The letter explained that "[t]hrough the exercise of tribal governmental authority, the Site will be subject to the Nation's management, protection, and conservation after it is acquired in trust." ECF No. 9-1 at 4. The letter also referenced an Environmental Assessment ("EA") conducted as part of Defendant's evaluation of the Nation's application. The EA concluded that development would "result in changes to the existing topography" and "create a greater area of impervious surfaces than currently exists on the project site, potentially increasing surface flow rates," but that a grading plan and a stormwater prevention plan would minimize impacts to the topography and stormwater flow. Id. at 14. The letter further explained that a Finding of No Significant Impact ("FONSI") was appropriate, requiring no Environmental Impact Statement. Id. Defendant published notice of the land acquisition in the Federal Register on August 11, 2017. Ex. B to Pl.'s Am. Compl., ECF No. 7-2.
Plaintiff alleges that the Nation's subsequent development of the gaming facility "significantly altered both the elevation and existing drainage patterns" of the Site and "substantially increased [its] impervious surfaces." ECF No. 7 ¶ 12. According to Plaintiff, due to these changes and "the failure to properly design and construct water runoff measures, Plaintiff's real property has suffered repeated severe flooding, erosion, and impoundment of water." Id. ¶ 13. Plaintiff also alleges that the Nation, to divert its own water runoff, entered Plaintiff's land, removed vegetation and soil, and dug a drainage ditch-all without her permission. Id. ¶¶ 14, 21.
Plaintiff contends that Defendant's trust relationship with the Nation as to the Site imposes duties and obligations on Defendant as trustee. Id. ¶ 18. Because the Site is used by the Nation for gaming, she alleges that Defendant's duties are expanded consistent with its regulatory role under the Indian Gaming Regulatory Act ("IGRA"), which (among other things) gives Defendant the authority to order the temporary closure of a gaming facility that "is constructed, maintained, or operated in a manner that threatens the environment or the public health and safety, in violation of a tribal ordinance or resolution approved by the [National Indian Gaming Commission ("NIGC")] Chair." Id. ¶ 19 (internal quotation marks omitted) (quoting 25 C.F.R. § 573.4(a)(12)). Plaintiff asserts that "increased flooding, caused by Defendant's action and inactions, constitutes a taking of a flowage easement and detention pond upon the Plaintiff's property pursuant to the [Fifth] Amendment of the U.S. Constitution." Id. ¶ 22. Plaintiff seeks "just compensation in an amount equal to the value of the real property taken." Id. ¶ 23.
Plaintiff filed her Complaint on March 2, 2021. Pl.'s Compl., ECF No. 1. After Defendant moved to dismiss under RCFC 12(b)(1) and 12(b)(6) on June 2, 2021, Plaintiff filed an Amended Complaint on June 21, 2021.[1] ECF No. 7. On July 22, 2021, Defendant moved to dismiss the Amended Complaint under RCFC 12(b)(6), arguing that Plaintiff failed to state a takings claim upon which relief may be granted. Def.'s Mot. to Dismiss Pl.'s Am. Compl., ECF No. 9. Defendant contends that all of the acts alleged to have caused flooding on Plaintiff's property were taken by the Nation-not the United States, which cannot be liable under a takings theory for an alleged failure to act. Id. at 6-7. The parties completed briefing on September 10, 2021, and the Court heard oral argument on March 4, 2022.
The Court has jurisdiction under the Tucker Act to consider "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). This jurisdiction encompasses takings claims under the Fifth Amendment. Hammitt v. United States, 69 Fed.Cl. 165, 168 (2005) (citing Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987)), aff'd, 209 Fed.Appx. 986 (Fed. Cir. 2006).
To avoid dismissal under Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Steffen v. United States, 995 F.3d 1377, 1379 (Fed. Cir. 2021). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). When reviewing a motion under RCFC 12(b)(6), the Court "assume[s] all well-pled factual allegations are true" and makes "all reasonable inferences in favor of the nonmovant." United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006). However, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Acceptance Ins. Co. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555).
In deciding a motion under RCFC 12(b)(6), the Court may consider the complaint itself, "the written instruments attached to it as exhibits, 'documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.'" Todd Constr., L.P. v. United States, 94 Fed.Cl. 100, 114 (2010) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)), aff'd, 656 F.3d 1306 (Fed. Cir. 2011). This includes the contents of public documents and matters of public record. Bristol Bay Area Health Corp. v. United States, 110 Fed.Cl. 251, 262 (2013) (citing Sebastian v. United States, 185 F.3d 1368, 1374 (Fed. Cir. 1999)).
Plaintiff's Amended Complaint must be dismissed because it fails to plausibly allege a takings claim. As Defendant correctly argues, Plaintiff's allegations against the United States are founded on its alleged failure to prevent a third party (the Nation) from causing harm to Plaintiff's property, which is insufficient to constitute a taking. Nor does Plaintiff plead an actionable claim (either under a takings theory or otherwise) for Defendant's alleged breach of fiduciary duty.
"A taking occurs when governmental action deprives [an] owner of all or most of its property interest." Nw. La. Fish & Game Pres. Comm'n v. United States, 446 F.3d 1285, 1289 (Fed. Cir. 2006) (citing United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945)). This may include government projects that result in the flooding of an individual's land. See id. at 1289-90 (citing Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. 166, 172 (1871)). Such a claim usually "must be predicated on actions undertaken by the United States," not third parties such as a tribe, a foreign sovereign, or a local government. Navajo Nation v. United States, 631 F.3d 1268, 1274 (Fed. Cir. 2011); see All. of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1482 (Fed. Cir. 1994); see also Griggs v. Allegheny Cnty., 369 U.S. 84, 89-90 (1962). Courts have occasionally recognized third-party takings claims, but only where the United States induces a third party to "act[] as the government's agent or the government's influence over the third party was coercive rather than merely persuasive." A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1154 (Fed. Cir. 2014) (collecting cases). "[T]akings liability does not arise from government inaction or failure to act." St. Bernard Par. Gov't v. United States, 887 F.3d 1354, 1361 (Fed. Cir. 2018).
Defendant argues that Plaintiff's Amended Complaint fails to state a takings claim because Plaintiff's allegations against Defendant are based on Defendant's inaction-specifically, the Government's alleged failure to prevent actions by the Nation (an independent third party) that caused her injuries. ECF No. 9 at 16-17. Defendant further claims that Plain...
To continue reading
Request your trial