Dunn v. United States

United States Court of Federal Claims
No. 18-1225L
June 19, 2019
____________________________________
STEPHANIE GARCIA RICHARD,
New Mexico Commissioner of Public Lands,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.
____________________________________

Marshall J. Ray, Law Office of Marshall Ray, Albuquerque, NM for plaintiff.

Nathanael B. Yale, United States Department of Justice, Washington, DC, for defendant.

ORDER

Hodges, Senior Judge.

Plaintiff Stephanie Garcia Richard, New Mexico’s commissioner of public lands,
filed a complaint alleging that defendant took its trust lands in violation of the Fifth
Amendment of the Constitution.1 Plaintiff claims that defendant, acting through the
United States Department of Defense, the United States Air Force, and the Federal
Aviation Administration, appropriated and physically occupied its airspace thereby
preventing the construction of wind turbines contemplated in its lease agreement with a
third party wind developer. It also contends that defendant has implemented and enforces
unreasonable and onerous regulations regarding the airspace above its trust land property.

1
Aubrey Dunn was New Mexico’s commissioner of public lands when this complaint was
filed. Stephanie Garcia Richard was elected subsequently to the position and took office
in January 2019. Pursuant to Rule 25 of the Rules of the United States Court of Federal
Claims, Ms. Dunn’s successor, Ms. Richard, is automatically substituted as plaintiff.
 Defendant moved to dismiss both plaintiff’s regulatory and physical taking claims,
each for lack of subject matter jurisdiction and failure to state a claim. Defendant’s
motion to dismiss plaintiff’s regulatory and physical taking claims is granted.

BACKGROUND

Plaintiff is the duly elected commissioner of public lands for the State of New
Mexico. Under New Mexico law, plaintiff has “jurisdiction over all lands owned . . . by
the state, except as may be otherwise specifically provided by law.” N.M. STAT. ANN. §
19-1-1 (1978) (stating that the commissioner “shall have the management, care, custody,
control and disposition thereof in accordance with the provisions of this chapter and the
law or laws under which such lands have been or may be acquired”).2 The New Mexico
Constitution further provides that: “The commissioner of public lands shall . . . have the
direction, control, care and disposition of all public lands.” N.M. CONST. ART. XIII, § 2.

Plaintiff, as custodian over New Mexico’s trust lands, entered into a lease
agreement with a wind developer in 2013 to develop wind energy projects in multiple
counties in New Mexico.3 Plaintiff maintains that the “intent” of the lease agreement was
to construct 114 wind turbines. Compl. ¶ 10. The lease, however, does not specify the
number of wind turbines. Plaintiff maintains that the tracts of land in Torrance County,
New Mexico, which are designated for turbine construction, are not amenable to any
beneficial economic use beyond limited livestock grazing. It states that the lands are far
from any population center and have limited water, infrastructure, and natural resources.

The lease divides the wind energy development into phases: the initial phase,
operation phase, and decommission phase. During the initial phase, the developer was to
assess the project’s feasibility and to obtain government approvals, including filing notice
to obtain FAA’s hazard/no hazard determinations. The Department of Transportation,
acting through FAA, is authorized to regulate the safe and efficient use of navigable air
space and to issue air traffic rules and regulations. Plaintiff claims that defendant’s
implementation and enforcement of onerous regulations above its trust lands and its
actions constitute an unlawful appropriation and physical occupation of its trust property.
2
Plaintiff states that the United States granted the lands to New Mexico in trust “to provide
financial support for purposes specified in the grants, including ‘common schools’
(primary public education), state universities, state hospitals and other state institutions.”
Compl. ¶ 2.
3
The exhibits submitted along with the complaint indicate that several entities are involved
in this lease agreement. Unless stated otherwise, we refer to these entities collectively as
the “wind developer” or “the developer.”
2
 A. Framework for FAA’s Review of Notices Regarding Proposed Constructions

Under 49 U.S.C. § 40103(a), “the United States Government has exclusive
sovereignty of airspace of the United States.” Section 40103(b) provides that FAA “shall
develop plans and policy for the use of the navigable airspace and assign by regulation or
order the use of the airspace necessary to ensure the safety of aircraft and the efficient use
of airspace.” An applicant seeking to build a structure that is more than 200 feet above
ground level must notify FAA. See 49 U.S.C. § 44718(a); 14 C.F.R. §§ 77.5, 77.9.

After receiving a notice, FAA decides whether construction may result in an
obstruction of the navigable airspace, an interference with air navigation facilities and
equipment or the navigable airspace, or, after consultation with the Secretary of Defense,
an adverse impact on military operations and readiness. 49 U.S.C. § 44718(b)(1). Where
FAA decides that construction may result in an obstruction, an interference, or an adverse
impact, it then “conducts an aeronautical study to decide the extent of any adverse impact
on the safe and efficient use of the airspace, facilities, or equipment.” Id. This
aeronautical study includes finding made by DoD as to whether the project would result
in an “unacceptable risk to the national security of the United States.” § 44718(b), (f).

Pursuant to 10 U.S.C. § 183a, DoD established the Military Aviation and
Installation Assurance Siting Clearinghouse, which coordinates DoD’s review of notices
filed pursuant to § 44718. The Clearinghouse conducts a preliminary review, which
consists of assessing the risk of any adverse impact of energy project on military
operations and readiness; and identifying any feasible and affordable actions that could
“mitigate the adverse impact and to minimize risks to national security while allowing the
energy project to proceed with development.” 10 U.S.C. § 183a(c). After receiving a
notice from FAA, the Clearinghouse must notify FAA if the proposed project will not
have an adverse impact on military operations and readiness or if its adverse impact is
sufficiently attenuated that it does not require mitigation. 32 C.F.R. § 211.6(a)(3)(i)–(ii).

Where the Clearinghouse determines that the proposed project may have an
adverse impact on military operation and readiness, it will notify the applicant of its
determination and offer to discuss mitigation. § 211.6(a)(3)(iii). If the applicant agrees to
discuss mitigation, DoD and the applicant have ninety days to reach a resolution. §
211.6(b)(1). If they are unable to reach an agreement on mitigation or the applicant
refuses to negotiate, the Clearinghouse will determine whether the project will present an
unacceptable risk to national security. § 211.6(b)(2), (c). If the project presents an
unacceptable risk, the Clearinghouse communicate its recommendation to DoD. Id. DoD
will consider the recommendation and mitigation options; and if it determines that the
project will result in an unacceptable risk, it will convey its determination to FAA. Id.
3
 Upon completing the aeronautical study to decide the extent of any adverse impact
on the safe and efficient use of the airspace, FAA includes the findings made by DoD
regarding unacceptable risk to national security. 49 U.S.C. § 44718(b). DoD’s
determination that a project would result in a risk to national security is not considered to
be a substitute for any determination required of FAA. 10 U.S.C. § 183a(g). And DoD
may not object to a project, except where it determines, after giving full consideration to
mitigation, that it would result in an unacceptable risk to national security. § 183a(e). If
DoD decides there is such a risk, it must submit a report to Congress with its findings. Id.

FAA will issue any of the following determinations after completing the study: (1)
a Determination of Hazard to Air Navigation when the aeronautical study concludes that
the construction will exceed an obstruction standard and would have a substantial
aeronautical impact, (2) a Determination of No Hazard to Air Navigation when the
aeronautical study concludes that the construction will exceed an obstruction standard but
would not have a substantial aeronautical impact to air navigation, or (3) a Determination
of No Hazard to Air Navigation when the proposed construction does not exceed any of
the obstruction standards and would not be a hazard to air navigation. 14 C.F.R. § 77.31.
Applicants may petition FAA for review of its determination. 14 C.F.R. §§ 77.37–77.41.

B. Summary of Plaintiff’s Regulatory and Physical Taking Claims

Plaintiff maintains that defendant’s implementation and enforcement of these
regulations resulted in an unlawful taking of its trusts lands. During the operation phase
of the lease, plaintiff contends that the wind developer was to build and maintain inter
alia the wind power facilities. The lease provides that the developer would pay rent
during this phase based on its gross revenues from selling wind power generated by the
wind turbines on the trust lands. Plaintiff contends that the wind turbines contemplated in
the lease represent a viable way to derive revenues from the otherwise low-value lands.
Plaintiff maintains, however, that defendant’s regulations and actions have indefinitely
precluded the extraction of anything other than a nominal benefit from its trust lands.

Plaintiff claims that in 2017 the wind developer sought to obtain the permits and to
provide the notices to begin construction. It states that construction involved providing
notice of any structures 200 feet above ground level (see 14 C.F.R. § 77.9) and obtaining
“No Hazard” determinations from the Federal Aviation Administration (see 14 C.F.R. §
77.31). Plaintiff states that the air space below 500 feet above ground level is generally
non-navigable. It contends that the inability to obtain these determinations is fatal to the
construction of wind turbines because other agencies will withhold permits for
construction if determinations cannot be obtained and financing becomes impracticable.

4
 Plaintiff contends that, when the wind developer sought to obtain the “No Hazard”
determinations from FAA to build the turbines, DoD advised the developer in a series of
meetings that sixty-one of the turbines could not receive determinations because they fell
within a critical military training route established in the 1970s.4 Military aircrafts
regularly fly below 500 feet above ground level in this training route. The developer
explained to plaintiff in February 2018 that they had reached a negotiated solution with
DoD, which precluded them from seeking FAA approval on some of the turbines within
the route, but that would allow them to preserve seventy-three of the planned turbines.

Plaintiff claims that the physical occupation of its low altitude airspace along with
the refusal to issue “No Hazard” determinations render the construction and operation of
many potential useful structures, including the turbines, impossible or impracticable. It
states that it wrote to the Secretary of the Air Force in February 2018 for compensation
for lost revenue to the trust but did not receive a response. Plaintiff then wrote to another
official at the Air Force, explaining that it had not received a response and expressing its
belief that it had exhausted its remedies to address the revenue lost. It then sent a follow
up message via email. The Air Force replied in May stating that it was formulating a
response to its February 2018 letter. Plaintiff states that it never received a response.

Plaintiff claims that the Air Force’s occupation of the airspace below 500 feet
above ground level will cause the loss of $25 million over the life of the lease and that it
deprives New Mexico of most of the economic beneficial use of its trust land property.5

Plaintiff requests inter alia that this court:

(1) declare pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 and 15
U.S.C. §§ 701–02, 704, that:
i. defendant’s refusal to issue “No Hazard” determinations is arbitrary,
capricious, an abuse of discretion and/or unlawful and that such refusal
constitutes a taking;

4
“The term ‘military training route’ means a training route developed as part of the
Military Training Route Program, carried out jointly by the Federal Aviation
Administration and the Secretary of Defense, for use by the armed forces for the purpose
of conducting low-altitude, high-speed military training.” 10 U.S.C. § 183a(h)(6).
5
Plaintiff states that this figure is based on the inability to complete development on sixty-
one of the wind turbines, a reduction of revenue estimated by the wind developer to be at
around $650,000 per year. Plaintiff claims that the remaining seventy-three turbines
correspond to $750,000 per year of revenue or $29 million over the life of the project.
5
 ii. plaintiff holds a vested right in the property, including the airspace
below 500 feet above ground level over state trust lands as against
defendant and that defendant’s physical occupation of the airspace
constitutes a taking requiring compensation;
(2) enjoin defendant, preliminary and/or permanently, from interfering with
plaintiff’s use of the trust property; and
(3) declare pursuant to the Tucker Act, 28 U.S.C. § 1491, that defendant’s
occupation and regulation of the airspace 500 above ground level over trust
lands constitutes a taking in violation of the Fifth Amendment, which requires
compensation.

Defendant filed a motion to dismiss for failure to state a claim and for lack of
subject jurisdiction. It maintains that the court lacks jurisdiction to hear plaintiff’s claims
pursuant to the Declaratory Judgment Act, the Administrative Procedures Act, and for
injunctive relief. And it maintains that plaintiff’s regulatory and physical taking claims
should be dismissed, each for lack of subject jurisdiction and for failure to state a claim.

LEGAL STANDARD

In deciding a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction, we must accept as true the undisputed factual allegations in the complaint
and must construe reasonable inferences in favor of the plaintiff. Trusted Integration, Inc.
v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The plaintiff bears the burden of
establishing subject matter jurisdiction by a preponderance of the evidence. Id.

To avoid dismissal for failure to state a claim, under Rule 12(b)(6), a “complaint
must allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of
entitlement to relief.” Acceptance Ins. Cos. v. United States, 583 F.3d 849, 853 (Fed. Cir.
2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). The court must
accept as true all factual allegations in the complaint and “indulge all reasonable
inferences in favor of the non-movant.” Sommers Oil Co. v. United States, 241 F.3d
1375, 1378 (Fed. Cir. 2001). The court, however, is “’not bound to accept as true a legal
conclusion couched as a factual allegation.’” Id. (quoting Twombly, 550 U.S. at 555).

DISCUSSION

Plaintiff maintains that a combination of defendant’s regulatory and physical
activities prevents it from putting large tract of land to economically beneficial use.
6
Defendant moved to dismiss plaintiff’s regulatory and physical taking claims for lack of
subject matter jurisdiction and for failure to state a claim. Plaintiff’s claim that a
combination or a totality of defendant’s actions made it difficult to establish the
parameters of its taking claims. We understand plaintiff’s regulatory taking claim to be
based on either FAA’s determination and/or DoD’s role in blocking this determination;
and plaintiff’s physical taking claim to be based on defendant physically invading its trust
land property by flying military planes lower than 500 feet above ground level.

A. Regulatory Taking

Defendant contends that plaintiff’s regulatory taking claim should be dismissed (1)
for lack of jurisdiction as it is not ripe and (2) fails to state a claim for various reasons,
notably because it impermissibly relies upon not receiving “No Hazard” determinations.

1. Lack of Subject Matter Jurisdiction

Defendant contends that plaintiff’s claim is not ripe because it fails to allege that
the developer (or anyone else) obtained any final determinations from FAA, as DoD does
not issue them. To the extent plaintiff alleges that seeking final determinations from FAA
would have been futile, defendant contends that futility is a limited doctrine that does not
excuse a party from the requirement that it exhaust administrative remedies. Plaintiff
counters that if FAA determinations are advisory, then the exhaustion requirement cannot
apply to prevent jurisdiction. It contends further that FAA’s determinations are only a
symptom of the larger decision by defendant to take its property. We disagree.

Plaintiff’s complaint requires us to scrutinize defendant’s regulatory actions
regarding hazard/no hazard determinations, which defendant contends are advisory.
Plaintiff claims that defendant’s actions regarding these determinations are only a
symptom of its unconstitutional actions. Yet, plaintiff’s characterization of FAA’s
determinations as merely symptomatic is not consistent with the pivotal role it assigns to
these determinations in its regulatory taking claim. Plaintiff’s complaint frames the
inability to obtain these determinations as fatal to the construction of the wind turbines.
Plaintiff maintains that other regulatory agencies will withhold permits and financing will
become impracticable, if it cannot obtain “No Hazard” determinations from FAA.

Although FAA’s determinations are advisory in nature, the requirement that a
developer notify FAA of a proposed project, which triggers a review process and a study,
is mandatory. See 14 C.F.R. § 77.5 (stating that notice to FAA is required). This notice

7
requirement serves to promote safety in air commerce, the efficient use of airspace, and
national security interests.

Plaintiff justifiably questions the coherence of having to “exhaust” a procedural
requirement that results in a determination that is not legally enforceable. See Flowers
Mill Assocs. v. United States, 23 Cl. Ct. 182, 188–89 (1991) (“FAA's hazard finding was
advisory only and not legally enforceable.”). Yet, the basis of its regulatory taking claim
is that FAA has refused to or is unable to issue a determination, or is likely to issue an
unfavorable one. Plaintiff may have reason to suspect that FAA’s determination will be
unfavorable. However, if FAA were to issue a favorable determination, which it may
still, it is unclear that a controversy requiring judicial review of defendant’s
implementation of these regulations would exist.

Plaintiff conflates the exhaustion of administrative remedies with the finality
requirement of administrative actions. Plaintiff argues that the Federal Circuit disfavors
exhaustion requirements for non-mandatory or permissive administrative remedies. Pl.’s
Reply at 5–6 (citing Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003)). In
support, plaintiff refers to the Federal Circuit’s pronouncement in Martinez that:

[T]his court and the Court of Claims have long held that, in
Tucker Act suits, a plaintiff is not required to exhaust a
permissive administrative remedy before bringing suit. As a
corollary of that rule, the court has held that a plaintiff’s
invocation of a permissive administrative remedy does not
prevent the accrual of the plaintiff’s cause of action, nor does
it toll the statute of limitations pending the exhaustion of that
administrative remedy.

Martinez, 333 F.3d at 1304. Plaintiff’s reliance on Martinez is misplaced, however.
Martinez involved the exhaustion of administrative remedies in relation to a military
correction board, a permissive remedy—not a mandatory administrative action. Id.
(discussing the effect of a military correction board remedy on the statute of limitations).

The Federal Circuit, in fact, explained that: “if a dispute is subject to mandatory
administrative proceedings, the plaintiff's claim does not accrue until the conclusion of
those proceedings.” Id. Unlike the board in Martinez, notice to FAA is mandatory and
plaintiff has not established that procedures relative to this notice have been concluded.

8
 The requirement to notify FAA and the ensuing study are not remedies made
available to the developer, but more of an administrative procedure or action, which
requires finality, before judicial review. This distinction created some confusion in the
briefs. The United States Supreme Court acknowledged the overlap between the two, but
explained that:

The question whether administrative remedies must be
exhausted is conceptually distinct, however, from the
question whether an administrative action must be final
before it is judicially reviewable. While the policies
underlying the two concepts often overlap, the finality
requirement is concerned with whether the initial
decisionmaker has arrived at a definitive position on the issue
that inflicts an actual, concrete injury; the exhaustion
requirement generally refers to administrative and judicial
procedures by which an injured party may seek review of an
adverse decision and obtain a remedy if the decision is found
to be unlawful or otherwise inappropriate

Williamson Cnty. Reg’l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S.
172, 192–93 (1985) (citations omitted). In line with this distinction, judicial review of
plaintiff’s claim must await FAA’s definitive position to assess more concretely the
injury alleged. Thus, to characterize notice to FAA and FAA’s ensuing determination as a
remedy, which must be exhausted, is not necessarily accurate. This distinction is
ultimately not material here.

Regardless of whether the developer’s notice to FAA and the ensuing review
process for issuing “No Hazard” determinations are understood in terms of an exhaustion
requirement or a finality requirement, we lack jurisdiction. Plaintiff has not established
that the predicate FAA determination for its taking claim is final; this court is without
jurisdiction to consider taking claims that are not ripe for judicial review. Martin v.
United States, 894 F.3d 1356, 1360–61 (Fed. Cir. 2018); see Palazzolo v. Rhode Island,
533 U.S. 606, 618 (2001) (“[A] takings claim challenging the application of land-use
regulations is not ripe unless ‘the government entity charged with implementing the
regulations has reached a final decision regarding the application of the regulations to the
property at issue.’” (quoting Williamson Cnty., 473 U.S. at 186)).

Plaintiff insists that the court’s inquiry should not simply focus on FAA’s refusal
or inability to issue “No Hazard” determinations but also on the totality of defendant’s
actions and communications -- namely DoD’s alleged role in blocking the construction of

9
 the contemplated turbines. Plaintiff refers frequently to FAA’s refusal or inability to issue
a “No Hazard” determination and DoD’s contributory role in this outcome. This claim
does not invalidate the ripeness issue, however. Plaintiff has not demonstrated that FAA
refused or is unable to issue a determination. It has not obtained a determination from
FAA but simply submitted a letter from a developer to it, which explains that DoD had
informed the developer that the project would impact military training exercises. Just as
importantly, the developer explained that it had reached an understanding with DoD that
precluded them from seeking FAA approval on some of the wind turbines. Ex. 4 at 4.6

Plaintiff’s claim that DoD blocked issuance of FAA’s determinations, moreover,
does not cohere with the legal framework for obtaining determinations. DoD’s
assessment of a project is not a substitute for FAA’s determinations. 10 U.S.C. § 183a(g).
Until plaintiff obtains final determinations from FAA, its assertion is speculative and
premature; therefore, its claim is unripe. See Williamson Cnty., 473 U.S. at 190–91
(stating that a court cannot evaluate the factors of a regulatory taking claim until the
“agency has arrived at a final, definitive position regarding how it will apply the
regulations at issue to the particular land in question”); cf. Corus Staal BV v. United
States, 502 F.3d 1370, 1379 (Fed. Cir. 2007) (holding that the futility exception to the
exhaustion requirement is a narrow one and that the “mere fact that an adverse decision
may have been likely does not excuse a party from a statutory or regulatory requirement
that it exhaust administrative remedies”). A such, plaintiff’s appeal to the “totality of
defendant’s actions and communications” does not provide the jurisdiction we need to
hear its claim.

The decision on jurisdiction is sufficient to dismiss plaintiff’s regulatory taking
claim. In the interest of judicial economy, however, we address defendant’s motion to
dismiss for failure to state a claim as it disposes of the claim more comprehensively.

2. Failure to State a Claim

Defendant asserts also that plaintiff’s regulatory taking claim should be dismissed
for failure to state a claim because it fails to allege either a categorical or a non-
categorical taking. The Takings Clause of the Fifth Amendment of the Constitution states
that “private property [shall not] be taken for public use, without just compensation.”
U.S. CONST. AMEND. V. The court must first determine whether plaintiff has a cognizable
property interest, then assess whether the governmental action at issue amounts to a
compensable taking of that property interest. Where the governmental action at issue is a

6
Defendant states that the “wind developer terminated its FAA filings for the 61 turbines
after it reached a negotiated resolution with the DoD.” Mot. Dismiss at 6 (emphasis
added).
10
regulation that unduly burdens a property interest, the court conducts a regulatory taking
analysis. Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377–78 (2008).

The Federal Circuit in Huntleigh explained that regulatory takings are divided into
categorical and non-categorical takings and stated that:

A categorical taking occurs when ‘all economically viable
use, i.e., all economic value, has been taken by the regulatory
imposition.’ Conversely, a non-categorical taking is a taking
‘that is the consequence of a regulatory imposition that
prohibits or restricts only some of the uses that would
otherwise be available to the property owner, but leaves the
owner with substantial viable economic use.’

525 F.3d at 1378 n.2 (internal citations omitted) (distinguishing between regulatory
takings). In deciding a Rule 12(b)(6) motion, we must simply assess whether plaintiff
alleges a claim to relief, under a regulatory taking theory, that is plausible on its face.

i. Non-Categorical Taking

Defendant maintains that plaintiff’s complaint fails to plead a non-categorical
taking and should be dismissed. It contends that frustration of contractual expectations
does not constitute a taking. It argues additionally that plaintiff’s claim impermissibly
relies upon not receiving “No Hazard” determinations, which cannot form the basis of a
taking and that the claim should be dismissed because plaintiff had no investment-backed
expectations for obtaining “No Hazard” determinations for wind turbines. We agree.

To assess whether a non-categorical taking occurred involves a fact-based inquiry,
under which the court considers: (a) the character of the governmental action, (b) the
economic impact of the action on the plaintiff, and (c) the effects of the action on the
plaintiff’s reasonable investment-backed expectations. Huntleigh, 525 F.3d at. 1378 n.2
(referring to Penn Cent. Transp. Co. City of New York, 438 U.S. 104, 124 (1978)).

Plaintiff’s claim is premised on the allegation that FAA refused to or is unable to
issue “No Hazard” determinations. Our court, however, has held that FAA’s
determinations do not provide a basis for a taking claim. Flowers, 23 Cl. Ct. at 189
(holding that an unfavorable FAA determination may be a stumbling block to a
construction project but cannot be the basis for a taking); Breneman v. United States, 57

11
Fed. Cl. 571, 585 (2003) (finding that FAA is not empowered to prohibit a project it
deems dangerous to air navigation and declining to find a taking where FAA’s
determination influenced a third party to deny plaintiff a construction permit); see also
Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1308 (Fed. Cir. 2015) (clarifying that
Flowers court “denied the regulatory takings claims not because the government's action
did not have any legal effect, but because the agenc[y] had no authority to regulate”).

The court in Flowers recognized that while an FAA determination has “substantial
practical impact,” it has no enforceable legal effect. 23 Cl. Ct. at 186. In rejecting the
landowner’s taking claim based on FAA’s determination, the court in Flowers referred to
Aircraft Owners and Pilots Ass'n v. FAA, 600 F.2d 965 (D.C. Cir. 1979), which stated
that:

The FAA is not empowered to prohibit or limit proposed
construction it deems dangerous to air navigation.
Nevertheless, the ruling has substantial practical impact . . . .
The ruling may also affect the ability of a sponsor proposing
construction to acquire insurance or to secure financing.
Primarily, however, the determination promotes air safety
through ‘moral suasion’ by encouraging the voluntary
cooperation of sponsors of potentially hazardous structures.

Id. at 186 (quoting Aircraft Owners, 600 F.2d at 967). The court explained that, even
assuming the economic impact of the regulations interfered with plaintiff’s investment-
backed expectations, FAA’s actions cannot be the basis of a taking “because of the
voluntary nature of the regulatory scheme.” Id. at 189. Similarly, if the wind developer
were to obtain the necessary financing and state permits, “FAA would be powerless to
prevent construction of the proposed” wind turbines. Id. at 190 (holding that plaintiff did
not state a claim upon which relief could be granted). Our consideration of the advisory
nature of FAA’s determinations, accordingly, confirms that plaintiff fails to allege facts
in its regulatory taking claim that plausibly suggest a showing that it is entitled to relief.

The court cannot evaluate the economic impact of FAA’s determination and the
extent to which it interferes with reasonable investment-backed expectations until FAA
“has arrived at a final, definitive position regarding how it will apply the regulations at
issue to the particular land in question.” Williamson Cnty., 473 U.S. at 191; Flowers, 23
Cl. Ct. at 189 (finding that the voluntary nature of defendant’s regulatory scheme
rendered analysis of plaintiff’s investment-backed expectations immaterial). However, a
Fifth Amendment taking cannot result from the practical effect of an FAA hazard/no

12
hazard determination when that determination is not legally enforceable and FAA, as the
issuing agency, lacks the power to prohibit the construction of the proposed wind project.

Defendant also moved to dismiss plaintiff’s claim on the basis that frustration of
contractual expectations does not constitute a taking. Plaintiff’s claim, however, is not
framed in terms of a claim of frustration of contractual expectations. In fact, plaintiff
maintains that defendant’s argument regarding frustration is a red herring, given that the
case is about defendant’s actions that prevented it from benefitting from its own property.

In articulating its objection, however, plaintiff states that defendant interfered with
its contract and thwarted the parties’ expectations and undermined its underlying property
rights. In support, plaintiff refers to United Nuclear Corp. v. United States, 912 F.2d 1432
(Fed. Cir. 1990) as instructive. It explains that the plaintiff in United entered into leases
with the Navajo Tribal Council to conduct uranium mining operations but that the
Secretary of the Interior refused to approve the plaintiff’s mining plan until the Tribal
Council issued its approval, which it withheld for several years. It contends that the
Federal Circuit court found that a taking had occurred because of the manner in which the
Secretary had interfered with the contract between the plaintiff and the Tribal Council.

The facts in United, however, are distinguishable and do not lend support to
plaintiff’s claim. In United, the Tribunal Council authorized the Secretary of the Interior
to conduct a public bidding for uranium mining, which the plaintiff won. 912 F.2d at
1433. After spending $5 million implementing its exploration plan, which the Secretary
had approved, the plaintiff discovered uranium. Id. at 1434. Under the regulatory scheme
there, the plaintiff’s mining plan also required approval from the Secretary before
plaintiff could begin mining. Id. at 1434. In finding that there was a taking of the
plaintiff’s property, the court noted that the plaintiff satisfied all regulatory requirements
and that the leases required approval from the Secretary to be effective. Id. at 1433–34.

Unlike United, plaintiff’s wind development project does not require FAA’s
determination to be effective in the same manner that the mining plan in United required
the Secretary’s approval. Whereas the plaintiff in United could not begin mining without
the Secretary’s approval, FAA cannot prohibit or limit proposed constructions. See 25
C.F.R. § 216.7 (stating that before starting mining operations under a lease, approval of
the mining plan is required). As such, defendant’s alleged failure to issue hazard/no
hazard determinations is dissimilar from the interference found in United and cannot be
the basis of a taking. See also Palmyra Pacific Seafoods, L.L.C. v. United States, 561
F.3d 1361, 1365 (Fed. Cir. 2009) (“As a general matter, the government does not ‘take’
contract rights pertaining to a contract between two private parties simply by engaging in
lawful action that affects the value of one of the parties' contract rights.” (referring to
13
Omnia Commercial Co. v. United States, 261 U.S. 502 (1923))). Plaintiff does not
identify an authority with the power to regulate and which prohibited its project. Thus, it
fails to state a claim that plausibly suggests a showing that it is entitled to relief.

ii. Categorical Taking

Defendant contends that plaintiff fails to properly allege a categorical taking and
that its allegations concerning overflights plainly raise a physical, not a regulatory taking.
It claims that that there are two circumstances where a categorical taking may exist and
that plaintiff does not satisfy either: (1) where the regulation compels a physical invasion
of property; or (2) where it denies all economically beneficial or productive use of land.
Mot. Dismiss at 22 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 441 (1982) and Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992)
respectively). In support, it contends that the developer agreed it would continue the
project on seventy-three turbines, which would result in $750,000 per year of revenue
during the lease and that plaintiff stated that the land could be used for limited livestock
grazing. And it reiterates its claim that FAA’s determinations cannot compel a physical
invasion of plaintiff’s land.

In response, plaintiff contends that cattle grazing is extremely limited on its lands
because no infrastructure or water supply is available on the land. Pl.’s Resp. at 7 (stating
that grazing is of negative economic value because the nominal amounts paid for such
leases ($100 per year) do no exceed the costs imposed on the land by such grazing). It
maintains that a taking has occurred on the turbines outside of the developer’s agreement
with DoD; and that defendant’s military flights have physically invaded its property.

The court cannot manufacture a claim on plaintiff’s behalf from the disparate set
of facts it has alleged. Plaintiff has focused its taking claim on FAA’s refusal to issue
“No Hazard” determinations. In the discussion of plaintiff’s non-categorical taking claim,
above, we established that FAA lacks the power to prohibit the construction. FAA’s
determinations cannot compel a physical invasion of plaintiff’s land; nor can DoD’s
agreement with the developer be characterized as compelling such an invasion.
Therefore, plaintiff fails to state a claim suggesting that it is entitled to relief. Plaintiff’s
allegations concerning overflights are more appropriately addressed according to a
physical taking framework. See Andrews v. United States, 108 Fed. Cl. 150, 156 (2012)
(stating that such claims have been analyzed as physical takings).

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 B. Physical Taking

Plaintiff’s physical taking claim that the Air Force physically invaded its property
by flying military airplanes lower than 500 feet above ground level must be dismissed as
well. Defendant contends that this allegation amounts to an avigation easement claim that
(1) lacks subject matter jurisdiction because it is time barred; and (2) fails to state a claim
because plaintiff has not pled the necessary factual allegations to show a taking through
an avigation easement.

The statute of limitations for filing claims against the United States Defendant is
six years. See 28 U.S.C. § 2501. Defendant contends a claim accrues when the alleged act
that causes the taking occurs, which in its view is the 1970s. This was when defendant
started using the flight route, not when plaintiff possessed actual knowledge of all
relevant facts or when the consequences of the act became “most painful.” Def.’s Mot.
Dismiss at 28 (quoting Fallini v. United, 56 F.3d 1378, 1383 (Fed. Cir. 1995)). Defendant
also refers to A.J. Hodges Ind. Inc. v. United, 174 Ct. Cl. 259, 264–66 (1966) to show that
the date of accrual is when defendant’s activity “began to operate regularly and
frequently over a plaintiff’s property at low altitudes with the intention to continue such
flights indefinitely.” Def.’s Reply at 16.

Plaintiff counters, however, that according to the accrual suspension rule, “[i]t is a
plaintiff’s knowledge of the facts of the claim that determines the accrual date.” Young v.
United States, 529 F.3d 1380, 1384–85 (Fed. Cir. 2008) (stating that, under this rule, the
accrual of a claim is suspended, for purposes of the statute of limitations at § 2501, until
plaintiff knew or should have known that the claim existed). To suspend the accrual of a
claim, plaintiff must “either show that the defendant has concealed its acts with the result
that plaintiff was unaware of their existence or it must show that its injury was inherently
unknowable at the accrual date.” Id. at 1384 (internal quotations omitted).

Plaintiff emphasizes that the events creating liability in this case had not yet
occurred, citing United States v. Causby, where the Supreme Court noted that: “’it is the
character of the invasion [of claimants’ domain], not the amount of damage resulting
from it, so long as the damage is substantial, that determines the question whether it is a
taking.’” 328 U.S. 256, 266 (1946) (quoting United States v. Cress, 243 U.S. 316, 328
(1917)). Thus, plaintiff maintains that for a physical taking to accrue, substantial damages
must have been incurred. It contends that the cause of action accrued only when
defendant’s act caused substantial damages, which, in its view, was in 2013 when the
opportunity arose to extract economic benefit from the land using newly available wind
technology.

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 To establish when the statute of limitation begins to accrue, the focus of a court’s
inquiry is on assessing when plaintiff knew or should have known that the Government’s
physical taking of its property occurred. Under this objective standard, a cause of action
accrues “when all the events have occurred that fix the defendant's alleged liability and
entitle plaintiff to institute the action.” Fallini, 56 F.3d at 1380; Japanese War Notes
Claimants Assn. v. United States, 178 Ct. Cl. 630, 632 (1967) (stating that plaintiff must
show when events which directly affect the rights asserted in this suit took place). The
Court in Causby recognized that a landowner has a claim to the airspace over his land and
may institute a physical taking claim where frequent and low flights by airplanes over its
land cause direct and immediate interference with his enjoyment and use of the land.
Causby, 328 U.S. at 265. The cases following Causby have required that the interference
with enjoyment and use be substantial. Brown v. United States, 73 F.3d 1100, 1102 (Fed.
Cir. 1996) (referencing several cases, including Bacon v. United States, 155 Ct. Cl. 441
(1961)).

While we must draw reasonable inferences in plaintiff’s favor, it has not borne the
burden of establishing jurisdiction in this court. For example, plaintiff has presented scant
evidence that the opportunity to extract economic benefit from the land using newly
available wind technology did not arise before 2013. Plaintiff’s claim is an appealing one,
particularly if we were to consider that the right to use the trust lands in this way and
hence the injury were inherently unknowable at the accrual date proposed by defendant.
Plaintiff neglects to develop and support its assertion regarding when the opportunity to
extract economic benefit from the land using newly available technology arose. Given
that information, the court could assess when plaintiff knew or should have known that
defendant’s flights were flying so low so as to substantially interfere with its right to use
the trust land in an economically beneficial way. Excepting one reference in its response,
however, plaintiff has offered no evidence of when wind technology became available.

Plaintiff has neither adequately established when the opportunity of using new
technology arose nor demonstrated when it knew or should have known that defendant’s
flights were flying in the air space above its land. Plaintiff has not established that its
claim was filed within the statutory period; therefore, we lack jurisdiction over this claim.

CONCLUSION

Plaintiff’s regulatory taking claim is trapped in a veritable Catch-22, where it lacks
jurisdiction because the predicate for its claim (i.e., FAA’s determination) is not ripe.
Yet, it could not state a claim upon which relief could be granted because FAA lacked the
power to prohibit the proposed project. Plaintiff asked that the court scrutinize DoD’s
role in allegedly blocking FAA’s “No Hazard” determinations. However, DoD’s
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 assessment of a project is not a substitute for FAA’s determinations. Also, plaintiff
submitted evidence that DoD and the developer had reached an agreement. The odd
nature of this regulatory structure, where FAA’s determination must be final for
jurisdiction to accrue, though FAA has no power act on the determination once it is final,
made it necessary to grant defendant’s motion to dismiss plaintiff’s regulatory taking
claim for lack of jurisdiction and failure to state a claim.

Plaintiff’s physical taking claim also presented complex issues. Despite the appeal
of plaintiff’s contention regarding when the opportunity to extract benefit from the land
using newly available technology arose, plaintiff neglected to develop or support its
contention; instead it offered mere conclusory statements. Plaintiff provided no case law
regarding the relationship between the development of new technologies, a claimant’s
various property interests, and how such cases should guide the court in evaluating
whether its claim was timely filed. Thus, the court granted defendant’s motion to dismiss
plaintiff’ physical taking claim for lack of subject matter jurisdiction.

For the aforementioned reasons, defendant’s motion to dismiss plaintiff’s
regulatory and physical taking claims is GRANTED.7 The Clerk of Court is directed to
dismiss the complaint.

IT IS SO ORDERED.

s/Robert H. Hodges, Jr.
Robert H. Hodges, Jr.
Senior Judge

7
Plaintiff has not challenged defendant’s argument that the court lacks jurisdiction to hear
its claims pursuant to the Declaratory Judgment Act, the Administrative Procedures Act,
and for injunctive relief. Because plaintiff did not respond to these arguments, defendant
maintains that any response is waived. Plaintiff’s requests for a declaratory judgment and
injunction are dismissed. See Halim v. United States, 106 Fed. Cl. 677, 684 (2012)
(stating that this “court has never been afforded the general authority to issue declaratory
judgments or to grant injunctive relief”).
17