Karlen v. US

• Decision Date: 30 January 1989
• Docket Number: Civ. No. 88-3010.
• Citation: 727 F. Supp. 544
• Parties: Merrill KARLEN, Rosemary Karlen, and Merrill Karlen and Rosemary Karlen as Trustees for Karlen Boys and Karlen Girls Trust, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Dakota

727 F. Supp. 544

Merrill KARLEN, Rosemary Karlen, and Merrill Karlen and Rosemary Karlen as Trustees for Karlen Boys and Karlen Girls Trust, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 88-3010.

United States District Court, D. South Dakota, C.D.

January 30, 1989.

David R. Gienapp, Arneson, Issenhuth & Gienapp, Madison, S.D., for plaintiff.

Ray P. Murley, Asst. U.S. Atty., Sioux Falls, S.D., for defendant.

MEMORANDUM OPINION

DONALD J. PORTER, Chief District Judge.

On February 16, 1988, plaintiffs Merrill and Rosemary Karlen (the Karlens) filed a complaint in this case alleging that defendant United States had injured their property by negligently designing and constructing a road across the Karlens' land. The Karlens invoke the jurisdiction of this Court under 28 U.S.C. § 1346(b) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680.

On June 17, 1988, the United States filed a motion requesting this Court to dismiss the case for want of subject matter jurisdiction. The United States argues that the claim is a contract or inverse condemnation action for more than $10,000 and thus that only the United States Court of Claims has jurisdiction over this case pursuant to § 1346(a) and the Tucker Act, 28 U.S.C. 1491. The Karlens respond that the case is a tort action for negligence rather than a contract or property claim. Because the case passes initial review as a tort claim at this early stage, the motion to dismiss is denied.

I. STANDARD FOR DISMISSAL

The United States bases its motion to dismiss for lack of subject matter jurisdiction on Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). A party may challenge a court's subject matter jurisdiction under Rule 12(b)(1) either facially or factually. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217; The `In' Porters, S.A. v. Hanes Printables, Inc., 663 F.Supp. 494, 499 n. 5 (M.D.N.C.1987). When a party makes a factual challenge of subject matter jurisdiction by questioning the veracity of key jurisdictional facts, a federal court is to weigh the evidence and place upon the plaintiff the burden of proving sufficient facts to support subject matter jurisdiction. Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891-92 (3d Cir.1977); Maine v. Thomas, 690 F.Supp. 1106, 1109 (D.Me.1988). By contrast, this Court must consider the plaintiff's allegations to be true when the defendant challenges the facial sufficiency of the complaint to invoke jurisdiction.¹ Mortensen, 549 F.2d at 891; Kline v. Henrie, 679 F.Supp. 464, 468 (M.D.Pa.1988). Because the United States makes a facial attack on subject matter jurisdiction, this Court must assume for the purposes of deciding the motion to dismiss that the allegations in the complaint are true. Indeed, this Court has no choice but to assume the veracity of the complaint since the United States has not yet contested the facts or supplied any additional facts.

II. FACTS

In 1980 and 1981, the United States, acting through the Bureau of Indian Affairs, obtained certain easement rights from the Karlens and built a road traversing the Karlens' property. The Karlens assert that the United States in constructing the road was negligent in seven different ways:

1) conducting ground work beyond the easement rights obtained, including establishing "cut and fill slopes," utilizing "borrow," and relocating top soil;

2) disturbing approximately three acres of private land outside of the right of way by shortening the length of a drainage channel and increasing downstream flood potential and erosion;

3) placing drainage structures in such a manner and location as to cause significant erosion into downstream stock ponds, thus reducing the holding capacity of plaintiffs' stock dams;

4) failing to utilize standard erosion control protection;

5) improperly fencing next to the construction area which frustrated proper seeding and revegetation of disturbed ground, and failing to fence altogether, thus requiring plaintiff to incur the costs of fencing;

6) failing to take steps to control erosion; and

7) causing additional damage to land not acquired by easement.

The Karlens contend that these allegedly negligent acts caused a reduction in the market value of the land and resulted in the acquisition without just payment of 37.7 acres of additional easement and 17,800 cubic yards of additional borrow.² The complaint requests $229,600.00 as compensation for these injuries. Based on these assertions, this Court must determine whether it has subject matter jurisdiction.

III. DISCUSSION

A. The Waiver of Sovereign Immunity in § 1346.

As a sovereign, the United States is immune from suit unless it consents to be sued. The terms of the consent define this Court's jurisdiction over a suit against the United States. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). Under 28 U.S.C. § 1346(b) and the Federal Tort Claims Act (FTCA), the United States has consented to be sued in federal district courts in tort cases, but not in property or contract cases exceeding $10,000. Section 1346(a) and the Tucker Act grant the Court of Claims exclusive jurisdiction over property and contract suits against the United States exceeding $10,000. See, e.g., Orange Ridge, Inc. v. Florida, 696 F.Supp. 600, 603 n. 7 (S.D.Fla.1988) (Court of Claims has exclusive jurisdiction over fifth amendment taking claims for more than $10,000); Sanborn v. United States, 453 F.Supp. 651, 654 (E.D.Cal.1977) (Claims Court has exclusive jurisdiction over inverse condemnation claims exceeding $10,000); Minnesota by Likins v. Weinberger, 359 F.Supp. 789, 790 (D.Minn.1973) (contract action against United States for over $10,000 is not within district court jurisdiction). To determine whether a case against the United States presents a tort claim actionable in a district court under the FTCA and § 1346(b) or a Tucker Act claim with restricted district court jurisdiction under § 1346(a), a court should conduct a three step analysis: 1) categorizing the case as a tort, contract, or property action, or some combination thereof; 2) examining whether the Tucker Act rather than the FTCA truly provides the remedy for the action; and 3) determining if any special considerations in the case affect proper categorization.

B. The Complaint at Bar.

1. Categorization of the Case.

The mere fact that a complaint sounds in tort does not transform a contract or taking claim into a tort action cognizable under § 1346(b). The substance of the claim and not the characterization controls whether the claim is within § 1346(a) or § 1346(b). United States v. Neustadt, 366 U.S. 696, 703, 81 S.Ct. 1294, 1298-99, 6 L.Ed.2d 614 (1961); Putnam Mills Corp. v. United States, 432 F.2d 553, 554 (2d Cir.1970); Bosco v. U.S. Army Corps of Engineers, 611 F.Supp. 449, 452 (N.D.Tex.1985).

The Karlens' complaint in essence alleges three types of misconduct by the United States: improper flood and erosion control; groundwork exceeding rights granted by the easement; and inadequate fencing. The complaint sounds in negligence throughout, but only the claim of improper erosion and flood control appears to present a colorable negligence claim. Yet even the allegation of negligent flood and erosion control arguably is a claim for nuisance, trespass, or even a fifth amendment taking; the evidence presently is too sketchy to permit definitive categorization of the claim. The allegations of groundwork outside of the government's easement rights resemble a trespass or nuisance claim, though it may be founded in property or contract law. The inadequate fencing count seems to allege a breach of contract, assuming that defendant's responsibility for fencing derived from a contract. This Court has not seen the easement agreement between the parties and thus cannot determine to what extent the inadequate fencing claim truly is for breach of contract.³ Consequently, this Court will focus upon defendant's argument that the complaint truly is a fifth amendment inverse condemnation action. See generally United States v. Clarke, 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980) (explaining inverse condemnation).

2. Whether the Claim is Truly a Taking Action Within the Tucker Act.

The determination of whether a claim is an actionable taking under the Tucker Act is a jurisdictional question governed by federal law. 2 L. Jayson, Handling Federal Tort Claims § 212.05, at 9-32 (1988); cf., Elledge v. City of Hannibal, 573 F.Supp. 1040, 1044 (E.D.Mo.1983) ("what constitutes a `taking' by the United States is a `federal question' governed entirely by federal law"). Traditionally, an isolated destructive act of the United States without an intent to acquire a property right created a cause of action in tort, while frequent and regular use of property by the government or use depriving the owner of all or most of his interest in the property constituted a taking. Compare Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 43 S.Ct. 37, 67 L.Ed. 165 (1922) (single blasting operation by United States is a tort, not a taking); with Stover v. United States, 332 F.2d 204 (9th Cir.1964), cert. denied, 379 U.S. 922, 85 S.Ct. 276, 13 L.Ed.2d 335 (only permanent or inevitably recurring flood is a taking); see also Harris v. United States, 205 F.2d 765, 767-68 (10th Cir.1953).

The United States Supreme Court in recent years has issued a number of decisions acknowledging that there is no set formula for determining when property is taken. Rather, the Supreme Court has adopted an ad hoc, factual inquiry into whether a taking has occurred. Several relevant factors in this analysis include the economic impact of the government action, the interference with reasonable investment backed expectations, and the character of the...