Moden v. United States

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

04-5092

DONALD MODEN and BARBARA MODEN,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

Ted L. McBride, Beardsley, Jensen & Von Wald, Prof. L.L.C., of Rapid City,
South Dakota, argued for plaintiffs-appellants.

Katherine J. Barton, Attorney, Appellate Section, Environment and Natural
Resources Division, United States Department of Justice, of Washington, DC, argued
for defendant-appellee. With her on the brief were Thomas L. Sansonetti, Assistant
Attorney General, Mark Haag, Attorney, and, William Shapiro, Attorney, General
Litigation Section.

Nancie G. Marzulla, Defenders Of Property Rights, of Washington, DC, for
amicus curiae Defenders Of Property Rights.

Appealed from: United States Court of Federal Claims

Judge Lynn J. Bush
 United States Court of Appeals for the Federal Circuit

04-5092

DONALD MODEN, BARBARA MODEN,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

__________________________

DECIDED: April 15, 2005
__________________________

Before MICHEL, Chief Judge, LOURIE, and PROST, Circuit Judges.

PROST, Circuit Judge.

Donald and Barbara Moden appeal the dismissal of their case by the United

States Court of Federal Claims for lack of subject matter jurisdiction. See Moden v.

United States, 60 Fed. Cl. 275 (2004). For the reasons stated herein, we treat the

dismissal as a grant of summary judgment. Because the Modens fail to raise a genuine

issue of material fact with respect to at least one element of their claim, we affirm the

grant of summary judgment.

BACKGROUND

A. Factual Background

The Modens own a ranch located about five miles east of Ellsworth Air Force

Base (EAFB) and near the town of Box Elder, South Dakota. Since being activated in
1942, EAFB has served in various capacities as a support, training, maintenance, and

testing facility for the United States Air Force. In particular, during the 1940s and 1950s

routine aircraft maintenance activities at EAFB involved using trichloroethylene (TCE) to

degrease airplane parts.

Since 1985, various governmental entities have commissioned studies to

investigate the release of hazardous substances at EAFB as well as to develop,

implement, and monitor appropriate responses to the release of those substances. In

1998 one of the commissioned studies identified that groundwater underneath the

Modens’ ranch was contaminated with TCE, a possible carcinogen. Researchers,

including government experts, now believe that if contaminated groundwater migrated

to the Modens’ ranch from EAFB, the contamination may have been caused by the

routine aircraft maintenance activities involving chemical solvents including TCE. While

unable to identify with certainty the actual source of the contamination, government

reports focus on two sites within EAFB known as Pride Hanger and Building 8115.

During the 1940s and 1950s, maintenance workers at Pride Hanger and Building

8115 used a mixture that included TCE to remove grease from airplane parts. At Pride

Hanger, the TCE was stored in a large underground storage tank. After mixing the TCE

with oil, maintenance workers would apply the mixture to the airplane parts before

washing the mixture and grease off of the airplane parts using pressurized water. An

industrial drainage system was used to collect the mixture, water, and grease for

transport to an industrial water treatment plant.

The parties agree that the facilities and practices at EAFB met or exceeded state

and federal requirements for storage and use of hazardous substances. They also

04-5092 2
agree that there is no evidence that TCE was intentionally or even accidentally dumped

into the groundwater by anyone at EAFB. Nevertheless, they agree that TCE is

currently present in the groundwater under the Modens’ ranch and that projections

indicate that the duration of the contamination may be as long as fifty years.

B. Procedural Background

On May 15, 2001, the Modens filed suit against the United States in the Court of

Federal Claims, alleging that their property was contaminated by TCE as the result of

government actions amounting to a taking under the Fifth Amendment to the United

States Constitution. They specifically argued that the government actions constituted

an inverse condemnation of their property.

The United States moved for judgment on the pleadings or, in the alternative, for

summary judgment on the grounds that, inter alia, the Modens failed to state a claim

upon which relief could be granted and that the Court of Federal Claims lacked

jurisdiction because the Modens’ claim sounds in tort. After the Court of Federal Claims

permitted some discovery, the United States renewed its motion.

On April 9, 2004, the Court of Federal Claims granted the motion and dismissed

the complaint for lack of subject matter jurisdiction. The Court of Federal Claims first

noted that, while it is authorized to exercise jurisdiction over takings claims, it does not

have jurisdiction over claims that sound in tort. 60 Fed. Cl. at 279. Then, it cited Ridge

Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003), for the two-pronged test

“that must be utilized in distinguishing a taking from a tort in inverse condemnation

cases.” 60 Fed. Cl. at 282. “[F]irst, a property loss compensable as a taking only

results when the government intends to invade a protected property interest or the

04-5092 3
asserted invasion is the direct, natural, or probable result of an authorized activity and

not the incidental or consequential injury inflicted by the action . . . .” Ridge Line, 346

F.3d at 1355. Second, “to constitute a taking, an invasion must appropriate a benefit to

the government at the expense of the property owner, or at least preempt the owner’s

right to enjoy his property for an extended period of time, rather than merely inflict an

injury that reduces its value.” Id. at 1356.

The Court of Federal Claims then examined the evidence in this case under the

identified two-pronged test. Under the first part of the first prong, the Court of Federal

Claims noted that the Modens did not allege an intentional invasion by the United

States. 60 Fed. Cl. at 283. Characterizing the second part of the first prong as an

inquiry into the “foreseeability” of damage, the Court of Federal Claims listed “three

occurrences [that] would have had to have been foreseeable or predictable by the Air

Force at the time of its authorized use of the chemical solvents.” Id. at 284-85. First,

“during the 1940s and 1950s . . . the government would have had to have known that

TCE was a component of these solvents and was a contaminant.” Id. at 285. Second,

the Modens “would have to show that it would have been predictable or foreseeable by

the government that these chemical solvents, containing TCE, would have been

released into the groundwater.” Id. Third, the Modens “would have to show that the

government should have foreseen that the contaminant would naturally migrate toward

plaintiffs’ property.” Id. at 285-86.

The Court of Federal Claims ultimately concluded that the Modens either did not

present evidence or did not contradict evidence presented by the United States with

regard to the first or second occurrence. Instead, the Modens focused on the third

04-5092 4
occurrence, which, according to the Court of Federal Claims, even if proved, alone

would be insufficient for jurisdiction to be proper. Thus, because the Court of Federal

Claims found that the Modens failed to satisfy Ridge Line’s first prong, it found subject

matter jurisdiction to be lacking.1

The Court of Federal Claims entered a final judgment on April 14, 2004. The

Modens timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

1
The Court of Federal Claims also “decline[d] to adopt the viewpoint set
forth in dictum” in Clark v. United States, 19 Cl. Ct. 220 (1990), that “the same operative
facts may give rise to both a taking and a tort.” 60 Fed. Cl. at 288. Regardless of
whether this viewpoint was set forth in dictum in Clark, several of our cases also
indicate that the same operative facts may give rise to both a taking and a tort. See
Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1363 (Fed. Cir. 1998);
Rith Energy, Inc. v. United States, 247 F.3d 1355, 1365 (Fed. Cir. 2001); El-Shifa
Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1353 (Fed. Cir. 2004). Moreover,
the Supreme Court has indicated that by denying just compensation a governmental
action may be both unconstitutional as well as tortious:
The city argues that because the Constitution allows the
government to take property for public use, a taking for that
purpose cannot be tortious or unlawful. We reject this
conclusion. Although the government acts lawfully when,
pursuant to proper authorization, it takes property and
provides just compensation, the government’s action is
lawful solely because it assumes a duty, imposed by the
Constitution, to provide just compensation. When the
government repudiates this duty, either by denying just
compensation in fact or by refusing to provide procedures
through which compensation may be sought, it violates the
Constitution. In those circumstances the government’s
actions are not only unconstitutional but unlawful and
tortious as well.
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 717 (1999)
(citations omitted). Nevertheless, as discussed below, the question before us today is
whether evidence in the record before us raises a genuine issue of material fact
sufficient to avoid summary judgment with regard to a takings claim. Whether the
government’s actions separately give rise to a tort action is irrelevant to our disposition
of this case.

04-5092 5
 DISCUSSION

A. Jurisdiction

The Court of Federal Claims dismissed the present case for what it deemed a

lack of subject matter jurisdiction. 60 Fed. Cl. at 291. In doing so, however, the Court

of Federal Claims addressed the merits of the Modens’ nonfrivolous inverse

condemnation claim. Thus, the Court of Federal Claims indicated a possible

misunderstanding of the appropriate role of a trial court in addressing three different

types of motions: a motion to dismiss a complaint for lack of subject matter jurisdiction;

a motion to dismiss a complaint for failure to state a claim upon which relief can be

granted; and a motion for summary judgment on the merits.

We have attempted to clarify the appropriate inquiries that a court must make in

response to these types of motions. See, e.g., Spruill v. Merit Sys. Prot. Bd., 978 F.2d

679, 687-88 (Fed. Cir. 1992). The Court of Federal Claims has interpreted Spruill as

suggesting that when a defendant disputes the merits of a claim in a motion to dismiss

for lack of subject matter jurisdiction, jurisdiction should be assumed and the merits of

the claim should be addressed. See, e.g., Janowsky v. United States, 31 Fed. Cl. 520,

521 (1994); Morris v. United States, 33 Fed. Cl. 733, 743 (1995).

In Spruill we concluded that subject matter jurisdiction exists when a petitioner

asserts a nonfrivolous claim:

To the extent a successful claim against the government
requires compliance with all statutory elements of the claim,
failure of proof of an element of the cause of action means
the petitioner is not entitled to the relief he seeks. To
conclude in such a case that the petitioner loses because
the forum is “without jurisdiction” is to obscure the nature of
the defect. It would be more accurate to conclude that the
petitioner has failed to prove the necessary elements of a

04-5092 6
 cause for which relief could be granted. The forum has
jurisdiction to hear the matter in the first instance—that is,
subject-matter jurisdiction existed—as long as the petitioner
asserted nonfrivolous claims.

978 F.2d at 687-88. Similarly, the Supreme Court has identified that “[d]ismissal for lack

of subject-matter jurisdiction because of the inadequacy of the federal claim is proper

only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this

Court, or otherwise completely devoid of merit as not to involve a federal controversy.’”

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian

Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)).

Confusion may have arisen here because jurisdiction in this case is governed by

the Tucker Act. The Tucker Act grants the United States Court of Federal Claims

jurisdiction over claims for money damages “against the United States founded either

upon the Constitution, or any Act of Congress 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 sounding in tort.” 28 U.S.C.

§ 1491(a)(1) (2000); United States v. Mitchell, 463 U.S. 206, 216 (1983). Recently we

noted:

In Tucker Act jurisprudence [the] neat division between
jurisdiction and merits has not proved to be so neat. In
these cases, involving suits against the United States for
money damages, the question of the court’s jurisdictional
grant blends with the merits of the claim. This mixture has
been a source of confusion for litigants and a struggle for the
courts.

Fisher v. United States, No. 02-5082, slip op. at 6 (Fed. Cir. 2005).

However, Fisher addressed how the Court of Federal Claims should determine

whether the “Constitutional provision, statute, or regulation is one that is money-

04-5092 7
mandating.” Id. at 9. We concluded that the determination of whether a claim’s source

is money-mandating “shall be determinative both as to the question of the court’s

jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a

money-mandating source on which to base his cause of action.” Id. Here the parties do

not dispute that the Takings Clause of the Fifth Amendment is money-mandating. Thus,

to the extent the Modens have a nonfrivolous takings claim founded upon the Fifth

Amendment, jurisdiction under the Tucker Act is proper.

The government neither argues that the Modens’ claim is frivolous nor argues

that it is so insubstantial, implausible, foreclosed by prior decisions, or otherwise

completely devoid of merit as not to involve a federal controversy. And while at oral

argument the United States repeatedly refused to concede that jurisdiction is proper in

this case, it clearly is.

As discussed above, the United States admits that TCE is currently present in

the groundwater under the Modens’ ranch and the government’s own experts believe

that if contaminated groundwater migrated to the Modens’ ranch from EAFB, the

contamination may have been caused by the routine aircraft maintenance activities

involving TCE. It is therefore clear, for example, that the Modens’ claim of inverse

condemnation is not made solely for the purpose of obtaining jurisdiction. See Steel

Co., 523 U.S. at 89. In short, we have jurisdiction to address the merits of this case, as

did the Court of Federal Claims, because the Modens’ claim is neither frivolous nor so

insubstantial, implausible, foreclosed by prior decisions, or otherwise completely devoid

of merit as not to involve a federal controversy.

04-5092 8
 Although the Court of Federal Claims stated that dismissal was for lack of

subject-matter jurisdiction, it is clear that the Court of Federal Claims concluded that the

Modens failed to identify a genuine issue of material fact sufficient to avoid summary

judgment. See Fed. R. Civ. P. 56(c). Thus, we treat the dismissal as a grant of

summary judgment. Cf. Banks v. Garrett, 901 F.2d 1084, 1087 (Fed. Cir. 1990).

B. Inverse Condemnation

1. Standard of Review

We review a grant of summary judgment in a takings case de novo. Sheldon v.

United States, 7 F.3d 1022, 1026 (Fed. Cir. 1993). Summary judgment is only

appropriate if the record shows that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law. R. of U.S. Ct.

Fed. Cl. 56(c); Fed. R. Civ. P. 56(c). In reviewing the record, we must draw all

justifiable inferences in favor of the party opposing summary judgment. Turner v.

United States, 901 F.2d 1093, 1095 (Fed. Cir. 1990). Furthermore, due to the fact-

intensive nature of takings cases, summary judgment should not be granted

precipitously. Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed. Cir.

1983).

2. Analysis

Inverse condemnation is a “shorthand description of the manner in which a

landowner recovers just compensation for a taking of his property when condemnation

proceedings have not been instituted.” United States v. Clarke, 445 U.S. 253, 257

(1980). It is a cause of action against the government to recover the value of property

taken by the government without formal exercise of the power of eminent domain. Id.

04-5092 9
 In Ridge Line we identified a two-part analysis that a claim for inverse

condemnation invokes. An inverse-condemnation plaintiff first must show that treatment

under takings law is appropriate. 346 F.3d at 1355. To do so, it must clear two hurdles.

First, it must show either that the government intended to invade a protected property

interest or that the asserted invasion is the direct, natural, or probable result of an

authorized activity and not the incidental or consequential injury inflicted by the activity.

Id. Second, it must show that the invasion appropriated a benefit to the government at

the expense of the property owner, at least by preempting the property owner’s right to

enjoy its property for an extended period of time, rather than merely by inflicting an

injury that reduces the property’s value. Id. at 1356. If treatment under takings law is

appropriate, the inverse-condemnation plaintiff must then “show that it possessed a

protectable property interest in what it alleges the government has taken.” Id. at 1355.

We first address whether the Modens have identified a genuine issue of material

fact with regard to whether treatment under takings law is appropriate. In this regard,

the Modens do not attempt to show that the government actually intended to invade a

protected property interest. Furthermore, the government concedes that the use of TCE

on EAFB was authorized. Thus, the first question presented on the merits is whether

the evidence presents a genuine issue of material fact with regard to whether the

contamination of the Modens’ ranch with TCE was the direct, natural, or probable result

of the authorized use of TCE on EAFB and not the incidental or consequential injury

inflicted by that action.

As a preliminary matter, the parties interpret the direct, natural, or probable result

standard differently. The government contends that the resulting injury must be

04-5092 10
foreseeable from the authorized government act, whereas the Modens and amicus

curiae, Defenders of Property Rights, contend that the authorized government act need

only be the “cause-in-fact” of the resulting injury. Simplified somewhat, the

government’s interpretation requires that the injury was the likely result of the act,

whereas the Modens’ interpretation requires only that the act was the likely cause of the

injury. The government’s interpretation finds support in the language of the standard,

which refers to a “direct, natural, or probable result,” not a direct, natural, or probable

cause. The government’s interpretation also finds support in our case law. In Ridge

Line, we stated that the court must determine whether the alleged injury was the

“predictable result of the government action.” Id. at 1356. This Ridge Line

interpretation itself finds support in a long line of controlling precedent. See, e.g., John

Horstmann Co. v. United States, 257 U.S. 138, 146 (1921); Sanguinetti v. United

States, 264 U.S. 146, 149-50 (1924); Eyherabide v. United States, 345 F.2d 565, 570

(Ct. Cl. 1965); Barnes v. United States, 538 F.2d 865, 872 (Ct. Cl. 1976); Pete v. United

States, 531 F.2d 1018, 1035 (Ct. Cl. 1976). Thus, we conclude that, here, the Modens

must point to some evidence presenting a genuine issue of material fact with regard to

whether the contamination of the Modens’ ranch with TCE was the foreseeable or

predictable result of the authorized use of TCE on EAFB.2

2
Recently, we summarized the relevant aspect of Ridge Line as requiring
that “a property owner must prove that the asserted government invasion of property
interests allegedly effecting a taking ‘was the predictable result of the government
action,’ either because it was ‘the direct or necessary result’ of the act or because it was
‘within the contemplation of or reasonably to be anticipated by the government.’”

04-5092 11
 This conclusion does not mean that issues surrounding causation are irrelevant.

On the contrary, causation must be shown. See Pashley v. United States, 156 F. Supp.

737, 738-39 (Ct. Cl. 1957). However, proof of causation, while necessary, is not

sufficient for liability in an inverse condemnation case. See John Horstmann Co., 257

U.S. at 145-46. In addition to causation, an inverse condemnation plaintiff must prove

that the government should have predicted or foreseen the resulting injury.

The Modens interpret several cases, including Cotton Land Co. v. United States,

75 F. Supp. 232 (Ct. Cl. 1948), as explicitly rejecting the foreseeability requirement.

However, we, along with our predecessor court, have a different view of Cotton Land

Co.:

Plaintiffs point to Cotton Land Co. v. United States, which
involved the eventual flooding of plaintiff’s land through
erection of a dam. Since the flooding did not occur directly
from erection of the dam, but rather through a chain of
events occurring in a natural order, but originally set in
motion by the erection of the dam, the Government
defended on the theory that erection of the dam was too
remote a cause on which to base liability. The Court
concluded that there has been a fifth amendment taking. We
rejected the ‘remoteness of cause’ defense by pointing out
that the flooding of the land was foreseeable. We looked to
the law of torts on the remoteness issue, and found no
intervening cause breaking the chain of causation. The Court
concluded that the flooding was the ‘actual and natural
consequence of the Government’s act.’

Vaizburd v. United States, 384 F.3d 1278, 1282-83 (Fed. Cir. 2004) (quoting Ridge
Line, 346 F.3d at 1356) (citing Sanguinetti, 264 U.S. at 150; John Horstmann Co., 257
U.S. at 146; Barnes, 538 F.2d at 871; Eyherabide, 345 F.2d at 570; Columbia Basin
Orchard v. United States, 132 F. Supp. 707, 709 (Ct. Cl. 1955); Cotton Land Co. v.
United States, 75 F. Supp. 232, 233-34 (Ct. Cl. 1948)).

04-5092 12
Avery v. United States, 330 F.2d 640, 644-45 (Ct. Cl. 1964) (emphasis added) (citation

omitted). In other words, injury may not be foreseeable if an intervening cause breaks

the chain of causation.

Turning to the evidence in the record of this case, as discussed above, the Court

of Federal Claims identified three antecedent “occurrences” that it believed would have

had to have been foreseeable or predictable at the time TCE was used on EAFB in

order to conclude that contamination of the Modens’ ranch with TCE was the direct,

natural, or probable result of the use of TCE on EAFB. 60 Fed. Cl. at 284-85. Because

these three antecedent factual questions provide a useful tool for organizing our inquiry

and the Modens do not argue that they are improper predicates to the ultimate issue of

the foreseeability of the contamination in this case, we adopt them with slight

modifications. The Modens must point to evidence sufficient to identify a genuine issue

of material fact that the government should have foreseen (1) that the chemical solvents

included a contaminant;3 (2) that the chemical solvents would be released into the

groundwater; and (3) that the contaminant would naturally migrate to the Modens’

ranch.

The Modens argue that the third factual question, migration, was the only debate

between the parties and that, therefore, we should assume that the evidence supports

holding a trial regarding the first two factual questions. As evidence that the first two

questions were not in dispute, the Modens point out that the government’s proposed

3
The Court of Federal Claims looked to determine whether the government
knew that TCE was a component of the chemical solvents and was a contaminant.
That is too strict a requirement since it is subjective and requires specific knowledge
regarding TCE. As the government concedes, foreseeability is an objective standard.
Subjective foresight of injury is not required. See Cotton Land Co., 75 F. Supp. at 235.

04-5092 13
findings of uncontroverted fact make no mention of the state of the knowledge regarding

TCE and its toxicity at any point in time. This argument misses the point. The burden is

on the Modens to present evidence sufficient to create a genuine issue of material fact.

While pointing to an admission by the government that it knew of TCE and its harmful

characteristics would probably satisfy their burden with regard to the dangerousness of

the chemical solvents, pointing out that the government did not admit these facts does

not. Moreover, if the issue of migration really was the only debate between the parties

then the proposed findings of uncontroverted facts might affirmatively state, for

example, that the chemical solvents and/or TCE were known to be toxic at the time they

were used at EAFB and that it was foreseeable that these substances would be

released into the groundwater at EAFB. Also, the government presented arguments

addressing the first two factual questions in a memorandum filed with the Court of

Federal Claims in support of their summary judgment motion. The presentation of these

arguments, regardless of their merit, contradicts the Modens’ assertion that these

issues were not debated by the parties. Thus, we conclude that the three factual

questions were in debate.

With regard to the second factual question, the Modens must identify a genuine

issue of material fact supporting the conclusion that the government should have

foreseen the release of the chemical solvents into the groundwater. In determining that

the Modens failed to identify a genuine issue of material fact on this issue, the Court of

Federal Claims relied upon the following uncontroverted evidence: (1) there was no

accidental or intentional dumping of chemicals; (2) EAFB utilized an industrial drainage

system to dispose of waste water and chemical solvents; and (3) Pride Hanger and

04-5092 14
Building 8115 met and/or exceeded federal and state requirements for use and storage

of chemicals. 60 Fed. Cl. at 285. The uncontroverted evidence in the record also

shows that EAFB utilized an industrial water treatment plant.

We agree with the Court of Federal Claims that the Modens failed to meet their

burden on this second question in light of the uncontroverted evidence and further in

view of the inability of the Modens to point to any evidence supporting the contention

that the government should have foreseen the release of the chemical solvents into the

groundwater. The evidence proffered by the government tends to show that use of TCE

at EAFB would not directly, naturally, or probably result in the release of chemical

solvents into the groundwater. The only relevant evidence cited by the Modens in their

brief in opposition is the testimony of Dell Peterson, an engineer at EAFB. When asked

whether he knew of any sources that could have caused the TCE contamination at

issue in this case other than the Air Force’s use of TCE, Peterson testified that “aircraft

or parts cleaning is not the only potential for this kind of contamination. Underground

leaks in drainage systems are possible.” This evidence does not create a genuine issue

of material fact because it can show, at most, that a government act was the cause-in-

fact of the claimed injury, not that the injury was predictable from the act. See Ridge

Line, 346 F.3d at 1356 (requiring that the claimed injury be the “predictable result of the

government action”).

While the existence of the drainage system and treatment plant points to some

actual knowledge on the part of the government that chemical solvents should not be

released into the groundwater because they are dangerous, the possibility of leaks in

drainage systems generally does not create a genuine issue of material fact that the use

04-5092 15
of chemical solvents at EAFB would directly, naturally, or probably result in their release

into the groundwater.

On this point, the Modens’ citation to Pashley is unavailing. While we agree that

the government’s liability for a taking does not turn, as it would in tort, on its level of

care, 156 F. Supp. at 738, Pashley confirms that foreseeability of injury is a relevant

consideration. Pashley, as well as other cases cited by the Modens, involve the

flooding of private property due to the erection of dams by the government. We think it

suffices to point out that in Pashley our predecessor court, while addressing causation,

noted that the “Defendant knew that the impounding of the waters above the dam would

probably cause the property below the dam to be inundated.” Id. In other words, the

government actually foresaw the injury it in fact caused. In contrast, here the Modens

fail to point to any evidence in the record tending to show that the government actually

predicted or should have predicted that the drainage system and treatment plant would

release the chemical solvents into the groundwater.

When pressed at oral argument to identify why the government should have

foreseen that the drainage system and treatment plant would release the chemical

solvents into the groundwater, the Modens’ counsel responded by stating that

contamination may have come from other sources on EAFB, such as firing ranges, that

did not utilize the drainage system or treatment plant. However, the record appears to

be devoid of any evidence concerning whether the government should have foreseen

that use of TCE at these firing ranges would release TCE into the groundwater. The

only evidence concerning the firing ranges cited by the Modens is a statement by a

government expert that indicates his belief that the most significant source of TCE is

04-5092 16
likely associated with activities at these firing ranges. While this expert’s opinion may

be sufficient to establish a genuine issue of material fact with respect to causation and

these firing ranges, it fails to establish a genuine issue of material fact with respect to

the foreseeability of leakage of the chemical solvents into the groundwater at these

firing ranges.

For these reasons, we agree with the conclusion of the Court of Federal Claims

that the Modens have failed to identify a genuine issue of material fact supporting the

conclusion that the government should have foreseen the release of the chemical

solvents into the groundwater. We decline to address whether the government should

have foreseen that the chemical solvents included a contaminant and that the

contaminant would naturally migrate to the Modens’ ranch.

Because we conclude that there is no genuine issue of material fact either that

the government intended to contaminate the Modens’ ranch or that the contamination of

the Modens’ ranch with TCE is the direct, natural, or probable result of the authorized

use of TCE on EAFB, we find it unnecessary to address whether the contamination of

the Modens’ ranch preempted the Modens’ right to enjoy their property for an extended

period of time, rather than merely by inflicting an injury that reduces its value. We also

find it unnecessary to address whether the Modens possessed a protectable property

interest in what they allege the government has taken.

CONCLUSION

While dismissal for lack of subject matter jurisdiction was improper, summary

judgment is appropriate because the Modens have failed to establish a genuine issue of

material fact with regard to whether the contamination of their ranch with TCE is the

04-5092 17
direct, natural, or probable result of the authorized use of TCE on EAFB. In particular,

the Modens have failed to point to any evidence that the government should have

foreseen the release of TCE into the groundwater on EAFB. For this reason, we affirm

the judgment of the Court of Federal Claims.

AFFIRMED

04-5092 18