Case: 20-2151 Document: 41 Page: 1 Filed: 05/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BENCH CREEK RANCH, LLC, PAUL PLOUVIEZ,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2151
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01331-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: May 7, 2021
______________________
A. BLAIR DUNN, Western Agriculture, Resource and
Business Advocates, LLP, Albuquerque, NM, for plaintiffs-
appellants.
BENJAMIN RICHMOND, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by ERIKA KRANZ, JEAN E. WILLIAMS.
______________________
Case: 20-2151 Document: 41 Page: 2 Filed: 05/07/2021
2 BENCH CREEK RANCH, LLC v. US
Before TARANTO, LINN, and CHEN, Circuit Judges.
TARANTO, Circuit Judge.
Paul Plouviez owns Bench Creek Ranch, LLC, which
operates a ranch in Washoe County, Nevada. Mr. Plouviez
and Bench Creek Ranch (collectively, Bench Creek)
brought the present action against the United States in the
Court of Federal Claims (Claims Court). Bench Creek al-
leged in its complaint that, after a wildfire in July 2017,
hundreds of wild horses on federal lands—owned by the
United States and managed by the Bureau of Land Man-
agement—drank water that belonged to Bench Creek un-
der a permit the Bureau issued to Bench Creek for grazing
livestock on the lands at issue. Bench Creek alleged that
the Bureau’s failure to manage the wild horses resulted in
a taking of its property without just compensation, in vio-
lation of the Takings Clause of the Fifth Amendment to the
United States Constitution. The Claims Court dismissed
the complaint for lack of jurisdiction. We affirm.
I
Bench Creek holds a grazing permit from the Bureau
for the Dixie Valley Allotment—federally owned land that
surrounds Bench Creek’s land. The permit allows Bench
Creek to use parts of the allotment for grazing, while stat-
ing that the permit “conveys no right, title or interest held
by the United States in any lands or resources.” J.A. 71.
Bench Creek alleged in its complaint here that after a wild-
fire occurred in July 2017, it counted about 500 wild horses
that had been “appropriating drinking water from Plain-
tiffs’ vested water rights” in the Bureau land covered by
Bench Creek’s grazing permit. J.A. 15.
On July 9, 2018, Mr. Plouviez sent a letter to the Bu-
reau regarding the horses’ continuing water consumption
despite his earlier protests, and he included an invoice for
compensation based on an estimate of the amount of water
consumed. J.A. 245–46. On August 9, 2018, Mr. Plouviez
Case: 20-2151 Document: 41 Page: 3 Filed: 05/07/2021
BENCH CREEK RANCH, LLC v. US 3
sent an additional letter with an invoice to the Bureau,
seeking $397,440 in payment for the water consumed by
the horses (including interest). J.A. 19–21.
The Bureau responded to Mr. Plouviez on Decem-
ber 21, 2018, acknowledging the increased wild horse pop-
ulation in the area after the fire, but denying the request
for compensation. The Bureau stated that Nevada law al-
lowed the water consumption by the wild horses and that
the Bureau “does not have the legal authority under Fed-
eral law to make payments to ranchers for water consumed
by wild horses on public lands.” J.A. 22–23.
On August 30, 2019, Bench Creek sued the United
States in the Claims Court. J.A. 13. The sole count in the
complaint alleges that the Bureau’s “failure to manage the
wild horses occupying Plaintiffs[’] lands has effectuated a
taking of their property” under the Tucker Act, 28 U.S.C.
§ 1491(a)(1). 1 J.A. 16; see also J.A. 13 (“The failure of [the
Bureau] to manage the wild horse population and the
knowingly notorious usage of Plaintiffs[’] water for the gov-
ernment’s horses directly correlates to the act of creating
and maintaining a nuisance for the intentional purpose of
physically depriving Plaintiffs of their private property
rights.”). Bench Creek asserted in the complaint that dam-
ages as of the time of filing amounted to $808,419.30 and
that the amount “continue[d] to grow as the [Bureau] re-
fuses to remove the wild horses or to provide their own
source of water to the horses.” J.A. 17.
1 Bench Creek’s complaint refers to the Declaratory
Judgment Act, 28 U.S.C. § 2201, in its request for relief.
J.A. 18. After Bench Creek explained that such references
resulted from “inartful pleading,” the Claims Court deemed
any claims to relief under the Declaratory Judgment Act
abandoned. J.A. 5.
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4 BENCH CREEK RANCH, LLC v. US
The government filed a motion seeking dismissal for
lack of subject-matter jurisdiction and failure to state a
claim under Court of Federal Claims Rule 12(b) and, in the
alternative, for summary judgment under Rule 56. J.A. 29.
The Claims Court granted the motion to dismiss for lack of
jurisdiction. Bench Creek Ranch, LLC v. United States, 149
Fed. Cl. 222 (2020). In doing so, the court held that Bench
Creek’s claim “implies two theories of liability, both of
which sound in tort.” Id. at 226. First, the court noted that
it lacks jurisdiction to consider a claim alleging nuisance,
which is a tort, because tort claims fall outside the court’s
jurisdiction under the Tucker Act. Id. Second, relying on
St. Bernard Parish Government v. United States, 887 F.3d
1354, 1360–61 (Fed. Cir. 2018), the court held that it lacks
authority to hear the claim because the claim challenges
government inaction, which cannot support a takings
claim. Bench Creek Ranch, 149 Fed. Cl. at 226–27. As a
result, the court dismissed the complaint without preju-
dice. Id. at 227.
Bench Creek Ranch timely appealed. We have juris-
diction under 28 U.S.C. § 1295(a)(3).
II
We review the dismissal for lack of subject-matter ju-
risdiction de novo. Inter-Tribal Council of Ariz., Inc. v.
United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020). We
accept well-pleaded factual allegations as true. Id. The
plaintiff has the burden to establish subject-matter juris-
diction by a preponderance of the evidence. Id. at 1337.
Under the Tucker Act, the Claims Court has jurisdic-
tion to consider “any claim against the United States
founded either upon the Constitution, or any Act of Con-
gress 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 sound-
ing in tort.” 28 U.S.C. § 1491(a)(1). As a matter of substan-
tive law, we have held that “‘the same operative facts may
Case: 20-2151 Document: 41 Page: 5 Filed: 05/07/2021
BENCH CREEK RANCH, LLC v. US 5
give rise to both a taking and a tort.’” Taylor v. United
States, 959 F.3d 1081, 1086 (Fed. Cir. 2020) (quoting
Moden v. United States, 404 F.3d 1335, 1339 n.1 (Fed. Cir.
2005)). That is, the fact that government action could be
characterized as a tort does not necessarily remove the
claim from the Claims Court’s jurisdiction, because the
same action might support a takings claim. See id. at
1086–87. As the Claims Court noted, however, see Bench
Creek Ranch, 149 Fed. Cl. at 224 n.1, our recognition of the
potential for overlap does not mean that any set of facts
that can support a tort claim can also support a takings
claim.
In the present case, the allegations provide no substan-
tial basis for a takings claim. Bench Creek’s complaint
rests on allegations that government inaction—i.e., the Bu-
reau’s “failure to manage the wild horses occupying Plain-
tiffs[’] lands”—resulted in a taking of its water rights. J.A.
16 (emphasis added); see also J.A. 13, 16–17. But as the
Claims Court explained, we have held that “[o]n a takings
theory, the government cannot be liable for failure to act,
but only for affirmative acts by the government.” St. Ber-
nard Parish, 887 F.3d at 1360. Even Bench Creek’s asser-
tion in this court that the government has “affirmatively
resist[ed] years of requests to remedy the nuisance that
they had created,” Bench Creek Opening Br. at 11, refers
to inaction. Given our clear precedent, Bench Creek’s in-
vocation of the Takings Clause is wholly insubstantial, and
because the takings claim is the only asserted basis for
Tucker Act jurisdiction, the Claims Court properly dis-
missed the complaint for lack of jurisdiction. See Shapiro
v. McManus, 136 S. Ct. 450, 455–56 (2015) (discussing
standard under Bell v. Hood, 327 U.S. 678 (1946), for in-
substantiality in pleadings that transforms failure to state
a claim into lack of jurisdiction); Tenet v. Doe, 544 U.S. 1,
12 (2005) (Scalia, J., concurring) (“[G]iven the squarely ap-
plicable precedent . . . , the absence of a cause of action is
so clear that respondents’ claims are frivolous—
Case: 20-2151 Document: 41 Page: 6 Filed: 05/07/2021
6 BENCH CREEK RANCH, LLC v. US
establishing another jurisdictional ground for dismissal
. . . .”); see also Brownback v. King, 141 S. Ct. 740, 749 n.8
(2021) (“In cases such as this one where a plaintiff fails to
plausibly allege an element that is both a merit element of
a claim and a jurisdictional element, the district court may
dismiss the claim under Rule 12(b)(1) or Rule 12(b)(6). Or
both.”).
III
For the foregoing reasons, we affirm the dismissal
without prejudice for lack of subject-matter jurisdiction.
AFFIRMED