No. 95-1257 In the Supreme Court of the United States OCTOBER TERM, 1995 SUSAN L. FALLINI, ET AL., PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION DREW S. DAYS, III Solicitor General LOIS J. SCHIFFER Assistant Attorney General ANNE S. ALMY PETER A. APPEL Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioners' claim of an uncompensated regulatory taking of their property is barred by the applicable six-year statute of limitations, 28 U.S.C. 2501. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 7 Conclusion . . . . 13 TABLE OF AUTHORITIES Cases: Andrus v. Allard, 444 U. S. 51 (1979) . . . . 13 Concrete Pipe & Products Co. of Cal. v. Construc- tion Laborers Pension Trust, 508 U. S. 602 (1993) . . . . 13 Delaware State College v. Ricks, 449 U. S. 250 (1980) . . . . 12 Fallini v. Hodel: 783 F.2d 1343 (9th Cir. 1986) . . . . 5 725 F. Supp. 1113 (D. Nev. 1989), aff'd, 963 F.2d 275 (9th Cir. 1992) . . . . 5 First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) . . . . 10 Guaranty Trust Co. v. United States, 304 U.S. 126 (1938) . . . . 10 Hart v. United States, 910 F.2d 815 (Fed. Cir. 1990) . . . . 11 Kimball Laundry Co. v. United States, 338 U.S. 1 (1949) . . . . 9 Kleppe v. New Mexico, 426 U.S. 529 (1976) . . . . 3 Light v. United States, 220 U.S. 523 (1911) . . . . 2 National Advertising Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991), cert. denied, 504 U.S. 931 (1992) . . . . 10-11 Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) . . . . 11 Penn Central Transportation Co. v. New York, 438 U.S. 104 (1978) . . . . 13 (III) ---------------------------------------- Page Break ---------------------------------------- Cases-Continued: Page San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981) . . . . 9 United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) . . . . 12 United States v. Dickinson, 331 U.S. 745 (1947) . . . . 6 United States v. Dow, 357 U.S. 17 (1958) . . . . 6 United States v. Fuller, 409 U.S. 488 (1973) . . . . 2 United States v. Miller, 317 U.S. 369 (1943) . . . . 9 Constitution, statutes and regulations: U.S. Const. Amend. V (Takings Clause) . . . . 10 Taylor Grazing Act, ch. 865, 48 Stat. 1269, 43 U.S.C. 315 et seq . . . . 2, 6 43 U.S.C. 315 . . . . 2 43 U.S.C. 315-315r . . . . 2 43 U.S.C. 315b . . . . 2 43 U.S.C. 315c . . . . 3 Wild Free-Roaming Horses and Burros Act, Pub. L. No. 92-195, 85 Stat. 649, 16 U.S.C. 1331 et seq . . . . 3, 5 16 U.S.C. 1331 . . . . 4 16 U.S.C. 1333(a) . . . . 4 28 U.S.C. 2501 . . . . 6, 9 42 U.S.C. 1983 . . . . 11 43 C.F.R.: Section 2420 . . . . 3 Section 4100.0-5 . . . . 4 Section 4120.3-1(a) . . . . 3 Section 4120.3-1(e) . . . . 3 Section 4120.3-2(a) . . . . 3 Section 4120.3-3 . . . . 3 Section 4700.0-2 . . . . 4 Section 4770.1 . . . . 4 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-1257 SUSAN L. FALLINI, ET AL., PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-14) is reported at 56 F.3d 1378. The opinion of the Court of Federal Claims (Pet. App. 17-32) is reported at 31 Fed. Cl. 53. JURISDICTION The judgment of the court of appeals was entered on June 8, 1995. A petition for rehearing was denied on November 8, 1995. Pet. App. 53-54. The petition for a writ of certiorari was filed on February 6, 1996. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. a. Before 1934, grazing on public lands was large- ly unregulated. "And so, without passing a statute, or taking any affirmative action on the subject, the United States suffered its public domain to be used for [grazing] purposes. Three thus grew up a sort of implied license that these lands * * * might be used so long as the Government did not cancel its tacit consent." Light v. United States, 220 U.S. 523, 535 (1911). Nevertheless, the failure of the United States to object to grazing on public lands "did not confer any vested right * * * nor did it deprive the United States of the power of recalling any implied license under which the -land had been used for private purposes." Ibid. The unrestricted access to public lands for grazing led to substantial injury to those lands. Responding to the need to regulate private use of federal lands, Congress enacted the Taylor Grazing Act in 1934 "[t]o stop injury to the public grazing lands by pre- venting overgrazing and soil deterioration to provide for their orderly use, improvement, and development, [and] to stabilize the livestock industry dependent upon the public range." Taylor Grazing Act, ch. 865, 48 Stat. 1269; see-43 U.S. Cl. 315-3157. The Taylor Grazing Act authorizes the Secretary of the Interior to establish "grazing districts," 43 U.S.C. 315, and to issue permits to graze livestock on such grazing districts, 43 U.S.C. 315b. As was the case with the unregulated grazing on public lands before 1934, graz- ing permits under the Taylor Grazing Act do not "create any right, title, interest, or estate in or to the [public] lands." 43-U.S.C. 315b; see also United States v. Fuller, 409 U.S. C.38, 494 (1973). ---------------------------------------- Page Break ---------------------------------------- 3 The Taylor Grazing Act also authorizes the Secre- tary to issue permits for the construction of range improvements on federal grazing districts. 43 U.S.C. 315c Under the Secretary's regulations, all range improvements must be made in a manner consistent with principles of multiple-use management govern- ing federal lands. 43 C.F.R. 4120.3-l(a); see 43 C.F.R. 2420. Permit holders may install range improve- ments under either a cooperative agreement or a range improvement permit. 43 U.S.C. 315c Under a cooperative agreement, the government and the per- mit holder agree on an allocation of costs and labor to construct and maintain the range improvement, and the government and the permit holder share title to the improvement in proportion to their respective contributions. 43 C.F.R. 4120.3-2(a). Under a range improvement permit, the permit holder pays for construction and maintenance of the improvement and holds title to the improvement. 43 C.F.R. 4120.3-3. As with grazing permits, range improvement permits and cooperative agreements do not convey to the permittee or cooperator any right, title, or interest in any lands or resources held by the United States. 43 C.F.R. 4120.3-1(e). b. In 1971, Congress enacted the Wild Free- Roaming Horses and Burros Act (the Act), Pub. L. No. 92-195, 85 Stat. 649, 16 U.S.C. 1331 et seq. See generally Kleppe v. New Mexico, 426 U.S. 529 (1976). In enacting that legislation, Congress found that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and ---------------------------------------- Page Break ---------------------------------------- 4 burros are fast disappearing from the American scene. 16 U.S.C, 1331. Congress declared that wild free- roaming horses and burros are "an integral part of the natural system of the public lands," ibid., and directed the Secretary to "manage wild free-roaming horses and burros as components of the public lands." 16 U.S.C. 1333(a). To implement those statutory dictates, the Secre- tary has issued regulations that define "range im- provement" to include providing habitat for wild horses and burros. 43 C.F.R. 4100.0-5. The Secretary has also issued regulations to govern the "manage- ment of wild horses. and burros as an integral part of the natural system of the public kinds under the principle of multiple use." 43 C.F.R. 4700.0-2. The regulations prohibit activities harmful to wild horses or burros, including removing or attempting to re- move a wild horse or burro from the public lands without authorization, 43 C.F.R. 4770.1. 2. Petitioners own a 2,700 acre ranch in Nye County, Nevada. Their lands are intermingled with public lands in an area called the Reveille Allotment, which comprises 657,520 acres. Petitioners have been issued a grazing preference (a priority position per- mitting grazing) on the Reveille Allotment to the extent of 25,730 Animal Unit Months (AUMs) per year, and they have actually used the full amount of their preference since 1976. 1. There are several water ___________________(footnotes) 1 An Animal Unit Month is defined as the amount of forage necessary to sustain one cow or its equivalent for one month. 43 C.F.R. 4100.0-5. petitioners' preference is sufficient to sustain approximate y 2,144 head of mature cattle. See Pet. App. 19. ---------------------------------------- Page Break ---------------------------------------- 5 sources on the Reveille Allotment, some developed and some undeveloped For the developed water sources on public lands, petitioners have obtained range improvement permits allowing them to install equipment that produces the water. Pet. App. 18-19, 48. Wild horses protected by federal law have roamed on the allotment of federal land where petitioners hold a grazing permit and constructed range improve- ments, and have consumed water from water sources on that allotment. The presence of those wild horses led to litigation in the 1980s between petitioners and the government. See, e.g., Fallini v. Hodel, 725 F. Supp. 1113 (D. Nev. 1989), aff'd, 963 F.2d 275 (9th Cir. 1992); Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986). In 1983, petitioner Joseph Fallini wrote a letter to the Bureau of Land Management (ELM), Department of the Interior, purporting to bill the government for the water that wild horses had consumed up to that point. Pet. App. 7. 3. Petitioners initiated this lawsuit in November 1992. Petitioners' complaint (Pet. App. 35-52) alleged that the United States took their property to provide water for the wild horses. Petitioners sought com- pensation for the water consumed, either from the date of the enactment of the Wild Free-Roaming Horses and Burros Act or from six years prior to the date of the complaint. Id. at 40-42. The Court of Federal Claims granted summary judgment for the United States. Pet. App. 17-32. It held that petitioners owned no property interest in the water consumed by the horses, because they owned no water in excess of the amount necessary to satisfy their annual grazing preference of 25,730 AUMs. Id. at 2425. The court also noted that, under ---------------------------------------- Page Break ---------------------------------------- 6 the Taylor Grazing Act, no compensable expectancy in use of the public lands is created as a result of the issuance of a permit. Id. at 29. Thus, it concluded that petitioners had no compensable expectancy in the right to exclude wild. horses from the allotment. Ibid. 4. The court of appeals did not reach the merits of the trial court's conclusion. Rather, it held that petitioners' complaint should be dismissed because it had not been filed within six years after the cause of action accrued. Pet. App. 1-14. The court observed that, under the applicable statute of limitations, 28 U.S.C. 2501, a cause of action accrues "when all the events have occurred that fix the defendant's alleged liability and entitle the plaintiff to institute an action." Pet. App. 6-7. It ruled that, at the latest, the cause of action accrued on October 3, 1983, when Joseph Fallini sent his "bill" to BLM. That action, it noted, demonstrated that petitioners were "aware of all the facts necessary to establish the liability of the United States for the. alleged taking." Id. at 7. The court of appeals rejected petitioners' two argu- ments to avoid the limitations bar. First, the court rejected petitioners' argument based on United States v. Dickinson, 331 U.S. 745 (1547), which in- volved the accrual of a cause of action against the United States after the government gradually flooded privately owned land. The court acknowledged that Dickinson held that the plaintiffs in" that case were entitled to "postpone filing suit until the nature and extent of the taking [was] clear [and]. * * * `the situation [became] stabilized.'" Pet. App. 8-9. But based on this Court's subsequent decision in United States v. Dow, 357 U.S. 17, 27 (1958), the court of appeals concluded that Dickinson applies only "when it was uncertain at what stage * * * the land had ---------------------------------------- Page Break ---------------------------------------- 7 become appropriated to public use." Pet. App. 9. "In the case at bar," the court noted, "the `permanent nature' of the taking was evident to [petitioners] at least by 1983, when they sent their water bill to the Bureau of Land Management." Id. at 11. The court of appeals also rejected petitioners' con- tention that "every drink by every wild horse [is] a new and independent federal taking compensable under the Fifth Amendment." Pet. App. 12. The court of appeals rejected that argument as incon- sistent with petitioners' theory that "the Wild Free- Roaming Horses and Burros Act deprived [them] of their right to exclude wild horses from the developed water sources on the Reveille Allotment." Id. at 12- 13. "In light of those allegations," the court held, "it is the enactment of the statute, not the individual intrusions by the horses, to which a court must look to determine if there has been a taking." Ibid. Ac- cordingly, the court concluded that "government al action cannot be regarded as recurring with every new drink taken by every wild horse, even though the consumption of water by the wild horses imposes a continuing economic burden on [petitioners]." Id. at 13-14. It therefore held that petitioners' claim "must be regarded as accruing long before they filed their present suit." Id. at 14. ARGUMENT 1. In this Court, petitioners argue that the statute of limitations never runs on their claim as long as the purported regulatory taking is still ongoing. Analyz- ing a regulatory taking as "an ongoing;" temporary taking of indeterminate duration" (Pet. 9), petitioners assert that a claim is timely at any point during the time the regulatory measure is in effect. In similar ---------------------------------------- Page Break ---------------------------------------- 8 fashion, they submit that a regulatory taking should be analyzed under the "continuing wrong" doctrine (Pet. 20-21), which (as they acknowledge) has not previously been applied to regulatory takings. Petitioners did not present either of these theories to the panel of the court of appeals that decided this case. In its brief on appeal, the United States (as appellee) defended the merits of the trial court's de- cision and also argued that the claim was not timely. In their reply brief, petitioners relied-tin the Dickin- son "stabilization" doctrine (see pp. 6-7, supra), and argued that their complaint was timely because the harm to them did not stabilize until November 28, 1986. See Pet. C.A. Reply Br. 24-25; see also Pet. App. 40 ("Par" 14), 41 ("Par" 16) (same position taken in petitioners' complaint). Only in their petition for rehearing did petitioners advance their current theory of the appli- cation of the statute of limitations to this case. In- deed, petitioners now concede that Dickinson, on which they relied before the panel, "is not the prece- dent which should control this case." Pet. 6. That inconsistency in petitioners' legal position is itself a significant factor weighing against review by the Court. 2. In any event, petitioners' arguments that their claim is not barred by the statute of limitations are without merit. Their principal argument is that, be- cause a court cannot know whether the regulatory measure that allegedly amounts to a taking will be continued indefinitely or will be altered by amend- ment, a court cannot make a single, reasonably accur- ate determination of the just compensation that is due. Pet. 9-10. Petitioners suggest that a court presented with a regulatory taking claim will either overcompensate or undercompensate the person ---------------------------------------- Page Break ---------------------------------------- 9 whose property is taken, if it is required to evaluate the effect of the regulatory measure on the taken property at a single point. Pet. 14-15. Therefore, they contend, a court must be allowed to entertain a regulatory taking claim at any point while that regu- latory measure is in effect. Petitioners' argument cannot be squared with. the. language of the applicable statute of limitations, 28 U.S.C. 2501. Section 2501 provides that "[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues" (emphasis added). Congress's use of the words "first accrues" indicates that it intended that plaintiffs file actions as soon as they become aware of the facts giving rise to a claim (including a taking claim), and not wait until all the effects of the asserted taking, or other governmental action, are felt. Furthermore, petitioners' policy arguments are mistaken. Courts are familiar with the concept of temporary takings and have a number of tools avail- able to arrive at a determination of the value taken. See generally San Diego Gas & Elec. Co.. v. City of San Diego, 450 U.S. 621, 657-658 (1981) (Brennan, J., dissenting); Kimball Laundry Co. v. United States, 338 U.S. 1, 21 (1949); see also United States v. Miller, 317 U.S. 369, 373-376 (1943). If petitioners" succeeded in persuading the courts that the regulatory measure amounted to a taking, the government would then have to decide whether to exercise its power of emin- ent domain, by paying the compensation necessary to make the regulation effective on a permanent basis, or to rescind the challenged regulation. In the latter event, if the court further concluded that the effect of ---------------------------------------- Page Break ---------------------------------------- 10 the regulation up to the time of rescission amounted to a temporary taking of property within the meaning of the Fifth Amendment, then the government would be required to compensate petitioners in some manner for the value of the property interest that was taken during the period in which the regulation was applicable to the property. See First English Evan- gelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,321 (1987). Petitioners also err in arguing that the policies of statutes of limitations are not served by requiring claims like the one in this case to be presented at the earliest opportunity. As just explained, in the case of a regulatory measure, once the courts have deter- mined that the challenged governmental action amounts to a taking for which no compensation has yet been provided, the government must decide wheth- er to exercise its power of eminent domain through the payment of compensation, or to amend the regu- lation. Accordingly, early presentation of regulatory taking claims ensures that the. challenged regulation is reevaluated promptly, and also ensures an oppor- tunity for the government to limit its liability, if a temporary taking is found. By contrast, delay in determining that a regulatory measure amounts to a taking presumably would often increase the amount that the government would be required to pay in compensation for a temporary taking. That possibil- ity, in particular, squarely implicates the govern- ment's (and the public's) interest in putting "an end to the possibility of litigation after the lapse of a reasonable time." Guaranty Trust Co. v. United States, 304 U.S. 126,-136 (1938). Finally, this case does not involve a "continu- ing wrong," as petitioners contend (Pet. 20-21). ---------------------------------------- Page Break ---------------------------------------- 11 "A continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991), cert. denied, 504 U.S. 931 (1992); see also Hart v. United States, 910 F.2d 815,818 (Fed. Cir. 1990). In National Advertising, the court held that a challenge under 42 U.S.C. 1983 to an ordinance banning off-premises outdoor advertising signs was barred by the applicable three-year statute of limitations, since the plaintiff was aware at the time of the ordinance's enactment, that its signs would become noncon- forming after the end of a five and one-half year "grace period" following enactment of the ordinance, yet it delayed suit until after that grace period expired. F.2d at 1166-1168. The court stressed that "we have found no continuing harm violation where any harm to the plaintiff stemmed only from the initial application of a regulatory prohibition." Id. at 1167. As the court of appeals in this case concluded, the taking in this case (if any taking occurred) is simi- larly "the government's directive forbidding [petition- ers] from shooing the horses away from the water that [petitioners] have produced at their developed water sources." Pet. App. 13. That directive consti- tutes the alleged taking, and the drinking of water by the wild horses constitutes only the ensuing "injury" to petitioners' interests. 2. Under traditional ___________________(footnotes) 2 As the court of appeals explained, this case is analogous to one in which the government adopts a measure requiring landowners to allow members of the public to walk across their beachfront property, thereby effecting a taking of an easement over the property. See Pet. App. 12 (citing Nollan v. Cali- fornia Coasted Comm'n, 483 U.S. 825,831 (1987)). In the latter ---------------------------------------- Page Break ---------------------------------------- 12 principles governing statutes of limitations, peti- tioners' cause of action "first accrued" on the date that the directive first affected their property inter- est, not when all the consequences were felt. Cf. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980); United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). Petitioners' action is therefore untimely. 3. Even if the court of appeals erred in applying the statute of limitations to the facts of this case, review would nevertheless not be warranted because peti- tioners' taking claim is without merit. The undis- puted evidence before the trial court demonstrated that petitioners have continued their ranching oper- ation at their full preference of 25,730 AUMs every year since the enactment of the Act. Pet. App. 19. Petitioners have an interest only in the amount of water that they can put to beneficial use by virtue of their federal grazing preference, and they do not, in any event, have any right to water in excess of the amount needed to water their cattle. Id. at 25. Petitioners have argued that their property has been taken because, to meet the water needs of the wild horses, they are effectively required to produce more water than is necessary to meet the needs of their cattle. Petitioners have not, however, been de- prived of the economically beneficial use of whatever property interests they may have. They have shown merely that the Act has an impact on their cost of doing business. This Court has repeatedly ruled that ___________________(footnotes) situation, the taking occurs on the date the measure requiring public access becomes effective. "Every instance of a beach- comber using the public easement does not constitute a separate taking, even though each use may inflict psychic or economic injury on the landowner." Pet, App. 12. ---------------------------------------- Page Break ---------------------------------------- 13 such incidental economic effects of regulation do not themselves constitute takings of property. Concrete Pipe & Products of Cal. v. Construction Laborers Pension Trust, 508 U.S. 602, 643-644 (1993); Andrus v. Allard, 444 U.S. 51, 66 (1979); Penn Central Trans- portation Co. v. New York, 438 U.S. 104,125 (1978). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor Gereral LOIS J. SCHIFFER Assistant Attorney General ANNE S. ALMY PETER A. APPEL Attorneys MAY 1996 ---------------------------------------- Page Break ----------------------------------------