Boise Cascade Corp. v. U.S.

• Decision Date: 19 July 2002
• Docket Number: No. 01-5106.,01-5106.
• Citation: 296 F.3d 1339
• Parties: BOISE CASCADE CORPORATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

296 F.3d 1339

BOISE CASCADE CORPORATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 01-5106.

United States Court of Appeals, Federal Circuit.

Decided: July 19, 2002.

Rehearing and Rehearing En Banc Denied: September 3, 2002.

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Phillip D. Chadsey, Stoel Rives LLP, of Portland, Oregon, argued for plaintiff-appellant. With him on the brief was Charles F. Adams.

Kathryn E. Kovacs, Attorney, Environment & Natural Resources, Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were John Cruden, Acting Assistant Attorney General; Katherine Barton, and Kristine Tardiff, Attorneys.

Before CLEVENGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit Judge.

CLEVENGER, Circuit Judge.

Boise Cascade ("Boise") appeals the judgment of the Court of Federal Claims dismissing its complaint for failure to state a claim. Boise Cascade Corp. v. United States, No. 99-860 L (Ct. Fed. Cl. April 10, 2001). We affirm.

I

This case involves a 65-acre tract of old-growth forested land known as the Walker Creek Unit, located in Clatsop County, Oregon. Boise owns the Walker Creek Unit, which was home to a nesting pair of northern spotted owls until late 1996. The spotted owl is listed as a threatened species under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, and is protected by both the federal government and the State of Oregon.

In January 1997 the nesting female spotted owl was found dead, and the male spotted owl moved to a new nesting area, and a new mate, a few miles from the Walker Creek Unit. In October 1997, the Oregon Department of Forestry ("ODF"), which until that time had prevented Boise from logging in order to protect the owl pair, notified Boise that it was lifting the restriction due to the departure of the male owl. In the letter, however, the ODF warned Boise that the U.S. Fish and Wildlife Service ("Service") might consider logging the land to be a violation of the ESA,¹ and that it therefore recommended consulting the Service before starting to log the land. The Service inspected the land — at Boise's invitation — and determined that logging the parcel could harm spotted owls that might otherwise use the site for nesting. Thus, the Service notified Boise that either it could file an application for an Incidental Take Permit ("ITP")² under section 10 of the ESA if it wished to log the land, or alternatively it could try to enter into a land swap with the State of Oregon. Boise responded by filing suit in federal district court in Oregon seeking a declaratory judgment that its proposed logging operation would not take any spotted owls, and requesting that the court enjoin the Service from enforcing the ESA against Boise. The United States filed a counterclaim asking the court to enjoin Boise from logging the Walker Creek Unit. Boise Cascade, slip op. at 3.

After an initial hearing, the district court dismissed Boise's complaint on ripeness grounds³ and granted the United States's motion for a preliminary injunction preventing logging pending the results of the Service's 1998 breeding season surveys. Because the United States's counterclaim for a permanent injunction created a ripe controversy, the court allowed Boise leave to file a counterclaim seeking the relief it originally sought in its complaint. During the breeding season survey conducted during the pendency of the preliminary injunction, a juvenile spotted owl was discovered living on the Walker Creek Unit. On October 15, 1998, the district court issued an order dismissing Boise's counterclaims and granting the United States's request to permanently enjoin Boise from logging the Walker Creek Unit without an ITP. Boise did not appeal the entry of the injunction.

Boise applied for an ITP on November 6, 1998. At a hearing on February 5, 1999, the district court ordered the Service to act on the permit application by September 1999. On May 17, 1999, the juvenile spotted owl that had been living at the Walker Creek Unit was found dead. After subsequent surveys found no living owls in the area, on July 30, 1999, the Service sent the following notice to Boise:

Based on our review of all the information concerning this site over the last three years and the new survey results, the best scientific information currently available indicates that no spotted owls would be taken by Boise Cascade's planned harvest of the property. Therefore, an Endangered Species Act incidental take permit is no longer required.

The district court lifted the injunction on August 17, 1999.

Boise filed a complaint at the Court of Federal Claims on October 6, 1999, seeking just compensation for the "temporary taking of merchantable timber, which it was prevented from logging" due to the injunction entered by the district court in Oregon. Boise advanced four different theories to support its takings claim: (1) a physical taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), based on the denial of its right to exclude spotted owls from its property and the requirement that it allow government personnel to enter the property to conduct owl surveys during the pendency of the preliminary injunction; (2) a categorical taking under Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), based on the 18-month ban on logging without a permit imposed by the district court's injunction; (3) an exaction-type taking under Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), based on the argument that the injunction did not substantially advance a legitimate government interest under the ESA; and (4) a temporary regulatory taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Boise Cascade, slip op. at 5. The government moved to dismiss the complaint on the ground that the injunction merely prohibited Boise from logging without a permit, and that it therefore did not constitute a taking as a matter of law under United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). The government also moved to dismiss the Loretto claim specifically on the ground that there was no forced governmental intrusion and hence no physical taking of the property. Boise cross-moved for summary judgment on all four of its takings theories.

The court denied Boise's motion without prejudice pending disposition of the government's motion to dismiss, which it considered to raise threshold legal issues. Boise Cascade, slip op. at 6 & n. 4. The court ultimately found both of the government's arguments persuasive, and granted its motion to dismiss on both grounds. Boise now appeals. We exercise jurisdiction over this appeal from a final judgment of the Court of Federal Claims under 28 U.S.C. § 1295(a)(3).

II

We review de novo the legal question whether the Court of Federal Claims properly dismissed Boise's complaint for failure to state a claim. Dehne v. United States, 970 F.2d 890, 892 (Fed. Cir.1992). "[I]n reviewing a dismissal for failure to state a claim, we must assume all well-pled factual allegations are true and indulge in all reasonable inferences in favor of the nonmovant." Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir.1991).

The Takings Clause of the Fifth Amendment prohibits the government from taking property for public use without "just compensation." U.S. Const. amend. V. This court has developed a two-step approach to takings claims. "First, a court determines whether the plaintiff possesses a valid interest in the property affected by the governmental action, i.e., whether the plaintiff possessed a `stick in the bundle of property rights.'" Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374 (Fed.Cir.2000) (internal citation omitted). If so, the court proceeds to the second step, determining "whether the governmental action at issue constituted a taking of that `stick.'" Id. In this case we may proceed directly to the second step of our analysis, for the government does not contest that Boise possesses a property interest in both its fee simple estate in the Walker Creek Unit and its ownership of the timber that grows there. The issue, then, is whether Boise's complaint has sufficiently alleged that the government took either of these interests.

A

Before reaching the substantive issue in this case, however, we must address a threshold challenge to the trial court's and hence our jurisdiction. The government argues that Boise has asked the trial court to review the merits of a decision made by a United States district court, and that the Court of Federal Claims does not have jurisdiction to hear such a case. It is true that Article III forbids the Court of Federal Claims, an Article I tribunal, from reviewing the actions of an Article III court such as the Oregon district court. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy — with an understanding, in short, that `a judgment conclusively resolves the case' because `a `judicial Power' is one to render dispositive judgments.'" (quoting Easterbrook, Presidential Review, 40 Case W. Res. L.Rev. 905, 926 (1990))). Furthermore, we have previously affirmed that the Court of Federal Claims "cannot entertain a taking claim that requires the court to `scrutinize the actions of' another tribunal." Vereda Ltda. v. United States, 271 F.3d 1367, 1375 (Fed.Cir.2001) (quoting Allustiarte v. United States, 256 F.3d 1349, 1352 (Fed.Cir.2001)).

However, resolution of this case did not require the Court of Federal Claims to review the merits of the district court's order enjoining Boise from logging...