RESOURCE INVESTMENTS, INC., LAND RECOVERY, INC., Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee
Appeal from the United States Court of Federal Claims in No. 1:98-cv-00419-LB, Judge Lawrence J. Block.
MARK S. PARRIS, Orrick, Herrington & Sutcliffe LLP, Seattle, WA, argued for plaintiffs-appellants. Also represented by DAVID S. KEENAN, DANIEL D. SYRDAL; MARC SHAPIRO, New York, NY.
LANE N. MCFADDEN, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by SAM HIRSCH.
Before PROST, Chief Judge, DYK, and O'MALLEY, Circuit Judges.
Dyk, Circuit Judge.
Resource Investments, Inc. and Land Recovery, Inc. (collectively, " Resource Investments" ) appeal the Court of Federal Claims' (" Claims Court" ) dismissal of their Fifth Amendment takings claim pursuant to 28 U.S.C. § 1500. We affirm.
This case requires that we again consider § 1500, which limits the Claims Court's jurisdiction when at the time of the Claims Court filing there was a pending action against the United States in another court involving the same subject matter. Section 1500 provides: " The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States . . . ." 28 U.S.C. § 1500. The question here is whether Resource Investments' takings claim in the Claims Court based on the denial of a federal permit under Section 404 of the Clean Water Act (" CWA permit" ), 33 U.S.C. § 1344, was barred by an earlier district court suit under the Administrative Procedure Act (" APA" ) challenging the permit denial.
In 1987, Resource Investments purchased a 320-acre property in the State of Washington which it sought to use as a landfill. Beginning in 1989, Resource Investments applied for various state permits to construct the landfill. Because the proposed landfill project involved the fill of wetland areas, Resource Investments filed an application on August 8, 1990, for a CWA permit from the United States Army Corps of Engineers (" Corps" ). See 33 U.S.C. § 1344. The requisite state permits were ultimately issued in 1996 on the condition that Resource Investments obtain, inter alia, a federal CWA permit from the Corps. On March 4, 1994, as part of the CWA permitting process, the Corps determined that it would require a federal Environmental Impact Statement (" EIS" ) for the proposed landfill site. After the Corps' draft EIS preliminarily concluded that Resource Investments had not fully demonstrated that there were no practicable alternatives to the proposed landfill project (as required by 40 C.F.R. § 230.10(a)), Resource Investments requested that the Corps terminate the federal
EIS process, which the Corps did on June 7, 1996. The Corps formally denied Resource Investments' CWA permit on September 30, 1996.
On October 31, 1996, Resource Investments filed suit in the United States District Court for the Western District of Washington under the APA, challenging the denial of the CWA permit. Resource Investments alleged, inter alia, that the Corps' permitting process and ultimate denial of the permit violated the Clean Water Act and was arbitrary and capricious under the APA, 5 U.S.C. § 500 et seq. (" count IV" ). Count IV alleged " a cost to [Resource Investments] of several millions of dollars," J.A. 474, and that Resource Investments stood to " lose the large sums already invested in the project, as well as the economic value of its investment in the project site," J.A. 483.
The district court upheld the Corps' denial of the permit under the APA, but the Ninth Circuit reversed, finding that the Corps lacked authority to require a CWA permit because, under the Resource Conservation and Recovery Act, 42 U.S.C. § § 6941-6949a, the regulation of municipal solid waste in landfills constructed on wetlands areas lies solely with the Environmental Protection Agency (" EPA" ) or states (such as Washington) with solid waste permit programs approved by the EPA. See Res. Invs., Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d 1162, 1167-69 (9th Cir. 1998). Under the Ninth Circuit's holding, no CWA permit was required, and Resource Investments began construction of its landfill in October 1998. The landfill became operational in 1999.
On May 4, 1998, while the Ninth Circuit appeal was pending, Resource Investments filed a complaint in the Claims Court alleging that the Corps' denial of the CWA permit was a taking in violation of the Fifth Amendment. The Claims Court complaint alleged that " [i]n denying the Section 404 permit, the Corps has deprived plaintiffs of their valuable property interests in the Site without just compensation." J.A. 86. And the prayer for relief sought judgment against the United States " for just compensation and damages equal to the value of the Site but for the Corps' Section 404 Permit denial." J.A. 91. On October 13, 2005, several years after the Ninth Circuit's decision in the appeal of the district court action, Resource Investments filed an amended complaint in the Claims Court action alleging that the Corps' denial of the permit was a temporary taking under various legal theories.
While the Claims Court action was pending, the Supreme Court decided United States v. Tohono O'Odham Nation, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011), holding that " [t]wo suits are for or in respect to the same claim, precluding jurisdiction in the [Claims Court], if they are based on substantially the same operative facts, regardless of the relief sought in each suit." Id. at 1731. On June 10, 2011, after the Claims Court action had been pending for several years, the United States, in light of Tohono, filed a motion to dismiss the action for lack of subject matter jurisdiction.
The Claims Court granted the government's motion to dismiss, finding that count IV of the district court action and the Claims Court action shared substantially the same operative facts, in particular because the denial ...