Barlow & Haun, Inc. v. United States ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
BARLOW & HAUN, INC., A WYOMING
CORPORATION, TRICONTINENTAL RESOURCES,
A WYOMING PARTNERSHIP, NOWIO-S, LLC, A
WYOMING LIMITED LIABILITY COMPANY,
NOWIO-V, LLC, A WYOMING LIMITED LIABILITY
COMPANY,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5028
______________________
Appeal from the United States Court of Federal
Claims in No. 1:08-cv-00847-MMS, Judge Margaret M.
Sweeney.
______________________
Decided: October 9, 2015
______________________
DRAKE D. HILL, The Hill Law Firm, Cheyenne, WY,
argued for plaintiffs-appellants. Also represented by
THOMAS FRANK REESE, Williams, Porter, Day & Neville,
Casper, WY.
ERIKA KRANZ, Environment and Natural Resources
Division, United States Department of Justice, Washing-
2 BARLOW & HAUN, INC. v. US
ton, DC, argued for defendant-appellee. Also represented
by KATHERINE J. BARTON, JOHN C. CRUDEN.
______________________
Before LOURIE, BRYSON, and O’MALLEY, Circuit
Judges.
O’MALLEY, Circuit Judge.
Barlow & Haun, Inc. (“Barlow”), TriContinental Re-
sources (“TriContinental”), NOWIO-S, LLC (“NOWIO-S”),
and NOWIO-V, LLC (“NOWIO-V”) (collectively, “Appel-
lants”) appeal the judgment of the United States Court of
Federal Claims dismissing: (1) Barlow’s breach of contract
claim on the merits, (2) Barlow’s takings claim as unripe,
and (3) TriContinental’s, NOWIO-S’s, and NOWIO-V’s
breach of contract claim for lack of standing. Barlow &
Haun, Inc. v. United States, 118 Fed. Cl. 597, 623 (2014).
Because the trial court made no legal error or clearly
erroneous factual finding, we affirm.
BACKGROUND
In the mineral-rich state of Wyoming, a conflict be-
tween oil and gas development and trona 1 mining on
public lands has developed over the last twenty years.
Given the risks posed by oil and gas development to the
extraction of trona and trona worker safety, the Bureau of
Land Management (“BLM”), which manages the leasing
of federal public land for mineral development, indefinite-
ly suspended all oil and gas leases in one area of Wyo-
ming, known as the mechanically mineable trona area or
“MMTA.” At issue in this case is the effect of this indefi-
nite suspension on twenty six pre-existing oil and gas
leases owned by Barlow in the MMTA.
1 Trona is a sodium carbonate compound that is
processed into soda ash or baking soda.
BARLOW & HAUN, INC. v. US 3
As the custodian of federal lands, the BLM is author-
ized to award oil and gas leases, approve applications for
a permit to drill (“APD”), and develop land use plans. The
Mineral Leasing Act authorizes the Secretary of the
Interior to manage the leasing of public lands for develop-
ing deposits of coal, natural gas, oil, sodium phosphates,
and other minerals. See generally 30 U.S.C. §§ 181–287
(2012); 43 U.S.C. §§ 1701–1787 (2012); 43 C.F.R. § 3160.0-
3 (2013) (implementing regulations).
Barlow filed suit against the government in November
2008, alleging that the BLM’s suspension of oil and gas
leases constituted a taking of Barlow’s interests in the
twenty six leases without just compensation in violation
of the Fifth Amendment (count I of the complaint). Bar-
low further alleged that the BLM’s suspension constituted
a breach of both the express provisions of the leases and
their implied covenants of good faith and fair dealing
(count II of the complaint). After the close of discovery,
both sides moved for summary judgment. 2 The Court of
Federal Claims denied both sides’ motions, finding that
there was a factual dispute as to the duration of the
suspensions. The case proceeded to trial on April 15-30
and September 16-17, 2013. The parties filed post-trial
briefing and the trial court issued its post-trial opinion on
September 26, 2014.
2 Appellants filed a partial summary judgment mo-
tion on the issue of the government’s liability for breach of
the leases, and the government filed a motion on Appel-
lants’ claims for breach of contract and a taking without
just compensation. Order Denying Plaintiffs’ Motion for
Partial Summary Judgment and Defendant’s Cross-
Motion for Summary Judgment, Barlow & Haun, Inc. v.
United States, No. 1:08-cv-00847 (Fed. Cl. Aug. 22, 2012),
ECF No. 105.
4 BARLOW & HAUN, INC. v. US
In its post-trial opinion, the Court of Federal Claims
concluded that Barlow’s breach of contract claim failed on
the merits, that Barlow’s takings claim was unripe, and
that three of the four Appellants—TriContinental,
NOWIO-S, and NOWIO-V—lacked standing to assert a
claim for breach of contract. 3 The court found that Bar-
low’s breach of contract claim failed because the BLM had
not repudiated the contract. Barlow argued that the BLM
breached the leases by eliminating its right under the
leases to explore for and produce oil and gas, and by
imposing new conditions on the leases, such as accommo-
dating the concerns of the trona industry and ensuring
the safety of underground trona miners, which were not
contemplated at the time the leases were executed. The
court found, however, that the BLM’s statements about
the cessation of oil and gas development in the trona
conflict area did not foreclose the possibility that Barlow
could still be approved to drill there, because the BLM
repeatedly stated that it would recognize valid existing
rights. Additionally, the court concluded that the alleged-
ly “new” provisions were already encompassed by existing
lease provisions. Therefore, the court found that any
requirement that the BLM consider the impact of oil and
gas drilling on trona mining and miners in an APD would
not constitute a repudiation of the lease. Accordingly, the
court rejected Barlow’s claim for breach of contract.
The Court of Federal Claims next determined that
Barlow’s takings claim was not ripe because Barlow had
not submitted an APD to the BLM. Barlow, 118 Fed. Cl.
at 618-619. Although Barlow argued that filing an APD
would have been futile, the court disagreed, finding that,
3 In this opinion, the Court of Federal Claims also
rejected the government’s argument that Appellants’
claims accrued beyond the applicable limitations period.
The parties did not appeal this finding.
BARLOW & HAUN, INC. v. US 5
in light of the BLM’s statements that it would recognize
rights in preexisting leases, the BLM “retained the discre-
tion to allow oil and gas development in appropriate
circumstances.” Id. Accordingly, the court found that the
takings claim was not ripe.
Finally, the Court of Federal Claims determined that
three of the four plaintiffs—TriContinental, NOWIO-S,
and NOWIO-V—did not have standing to pursue a breach
of contract claim because they were not in privity of
contract with the government. Id. at 619-20. The court
noted that there was no evidence presented at trial indi-
cating that these parties had any contractual agreement
with the government. Instead, the evidence of record
showed that only Barlow had title in the leases. Thus, the
court dismissed the claims of TriContinental, NOWIO-S,
and NOWIO-V for lack of standing.
The court then entered final judgment in favor of the
government. Appellants filed a timely appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
STANDARD OF REVIEW
We review legal conclusions of the Court of Federal
Claims without deference, but defer to factual findings
unless clearly erroneous. Kansas Gas & Elec. Co. v.
United States, 685 F.3d 1361, 1366 (Fed. Cir. 2012). A
factual finding is clearly erroneous when we are “left with
a definite and firm conviction that a mistake has been
committed.” Id.
Contract interpretation is a question of law that we
review without deference. Yankee Atomic Elec. Co. v.
United States, 536 F.3d 1268, 1271 (Fed. Cir. 2008).
Similarly, we review the Court of Federal Claims’s deter-
mination with respect to ripeness de novo. McGuire v.
United States, 707 F.3d 1351, 1357 (Fed. Cir. 2013).
Whether a taking has occurred is a question of law
based on factual underpinnings. Wyatt v. United States,
6 BARLOW & HAUN, INC. v. US
271 F.3d 1090, 1096 (Fed. Cir. 2001). A trial court’s
determination that a takings claim is not ripe for adjudi-
cation is an issue we review de novo. Morris v. United
States, 392 F.3d 1372, 1375 (Fed. Cir. 2004).
We review de novo a determination of a par-
ty’s standing, while reviewing any factual findings rele-
vant to that determination for clear error. Bard
Peripheral Vascular, Inc. v. W.L. Gore & Assocs., 776 F.3d
837, 842 (Fed. Cir. 2015).
DISCUSSION
Appellants argue that the BLM breached Barlow’s oil
and gas leases; that the BLM’s regulations restricting oil
and gas mining constituted a taking; and that TriConti-
nental’s, NOWIO-S’s, and NOWIO-V’s breach of contract
claim was improperly dismissed for lack of standing. We
discuss each of these arguments in turn.
A. Breach of Contract
Barlow argues that the BLM breached the oil and gas
leases in two ways: (1) by indefinitely suspending the
leases, the BLM barred Barlow’s right to utilize its leases
for their only purpose, namely, oil and gas development;
and (2) by imposing new conditions not contemplated at
the time of contracting, the BLM unilaterally altered the
terms of the contract and denied Barlow the benefit of its
bargain. For the reasons below, we find these arguments
to be without merit.
“When the United States enters into contract rela-
tions, its rights and duties therein are governed generally
by the law applicable to contracts between private indi-
viduals.” Mobil Oil Exploration & Producing Southeast v.
United States, 530 U.S. 604, 607 (2000) (quotation omit-
ted). Such rights include a party’s entitlement “to restitu-
tion for any benefit that he has conferred on” the other
party if that party repudiates the contract. Id. (quoting
Restatement (Second) of Contracts § 373 (1979)). A party
BARLOW & HAUN, INC. v. US 7
repudiates a contract by a “statement . . . indicating that
[he] will commit a breach that would of itself give the
[non-repudiating party] a claim for damages for total
breach.” Id. (quotation omitted). “Repudiation occurs
when one party refuses to perform and communicates
that refusal distinctly and unqualifiedly to the other
party.” Dow Chem. Co. v. United States, 226 F.3d 1334,
1344 (Fed. Cir. 2000). And, total breach is a breach that
“so substantially impairs the value of the contract to the
injured party at the time of the breach that it is just in
the circumstances to allow him to recover damages based
on all his remaining rights to performance.” Mobil Oil,
530 U.S. at 608 (quotation omitted).
The BLM can create resource management plans to
define how a particular piece of land will be managed in
the future. 43 C.F.R. § 1601.0-2 (2012). Such plans are
implemented via a multi-step process, which includes
preparing a draft plan and environmental impact state-
ment (“EIS”), receiving comments on the draft plan,
publishing the proposed resource management plan,
resolving any protests of the proposed plan, and approv-
ing the proposed plan. 43 C.F.R. §§ 1610.4-1610.5. Once
these management plans have been approved, they can be
amended, but the amendment process must include the
preparation of an environmental assessment or impact
report. 43 C.F.R. § 1610.5-5.
The BLM created three versions of resource manage-
ment plans relevant here: the 2007 draft resource man-
agement plan (“the 2007 Draft RMP”), the 2008 proposed
resource management plan (“the 2008 Draft RMP”), and
the 2010 final resource management plan (“the 2010 Final
RMP”). As set forth below, a review of the language in
the management plans makes clear that the BLM under-
stood its obligation to honor its commitments under the
pre-existing leases in the MMTA. Therefore, we reject
Barlow’s argument that the BLM repudiated its contracts.
8 BARLOW & HAUN, INC. v. US
The 2007 Draft RMP indicated the BLM’s intent to
recognize existing contracts, stating that “[t]he BLM
must, by law, recognize all valid existing rights.” Barlow,
118 Fed. Cl. at 609. The 2007 Draft RMP noted that
“[t]he preferred course of action is to administer the area
exclusively for trona extraction until conventional trona
mining is complete.” Id. at 609-610. In addition, the
Draft 2007 RMP indicated that “an area has been desig-
nated, the MMTA, in which oil and gas leasing and devel-
opment are currently prohibited.” Id. The Draft 2007
RMP noted, however, that “[n]o formal decision has yet
been made on the management of the oil and gas and
trona resources within the MMTA boundary.” Id. In
sum, the 2007 Draft RMP evidenced the BLM’s intent to
honor Barlow’s existing rights, and noted that the BLM’s
decision with respect to trona management and oil and
gas management was not a final decision. Id.
The BLM again noted in the 2008 Draft RMP that it
“must, by law, recognize all valid existing rights.” Bar-
low, 118 Fed. Cl. at 610. The 2008 Draft RMP recognized
that “[w]hen an oil and gas lease is issued, it constitutes a
valid existing right; BLM cannot unilaterally change the
terms and conditions of the lease.” Id. The 2008 Draft
RMP further clarified that “[e]xisting leases would not be
affected by decisions resulting from this RMP.” Id.
The 2010 Final RMP reaffirmed that “[t]he revised
RMP will recognize valid existing rights.” Barlow, 118
Fed. Cl. at 611. In addition, the 2010 Final RMP specified
that “[t]he MMTA is administratively unavailable for new
fluid mineral leasing until the oil and gas resources can
be recovered without compromising the safety of under-
ground miners.” Id. (emphasis added). Thus, the 2010
Final RMP indicates that the BLM does not intend to
breach existing contracts.
It is evident from the language of the drafts and the
enacted resource management plan that the BLM under-
BARLOW & HAUN, INC. v. US 9
stood its obligation to accommodate the preexisting leases
in the MMTA. Barlow is correct that some of the lan-
guage in the draft RMPs indicated that oil and gas leasing
and development would be prohibited. In the 2010 Final
RMP, however, the BLM clearly makes a distinction
between new leasing and preexisting leases.
In addition, the trial testimony indicated that the
BLM would still consider an APD, even though it had
suspended oil and gas development generally in the
MMTA. Barlow, 118 Fed. Cl. at 611. The Court of Feder-
al Claims credited this testimony, see id., and we defer to
these factual findings. Further, there was evidence that
the BLM had granted other APDs in similar circumstanc-
es to another company, Saurus Resources, Inc. (“Saurus”).
Id. at 607-09. Though Saurus applied for APDs while oil
and gas development was suspended, the BLM ultimately
approved Saurus’s APDs, lifting of the suspension for
those sites covered by Saurus’s APDs. Id. Because the
BLM stated unequivocally in the final EIS and the 2010
RMP that existing contractual rights would be recognized,
and because it retains the discretion to approve APDs
within the MMTA after the issuance of those documents,
the final EIS and RMP cannot constitute a “distinct[] and
unqualified[]” refusal to perform. Dow Chem., 226 F.3d at
1344. Accordingly, the trial court properly determined
that the BLM’s decisions and statements regarding drill-
ing in the MMTA did not constitute repudiation of the
contract by the government.
We next consider Barlow’s argument that the BLM
breached the contract because it improperly altered the
terms of the contract. In making this argument, Barlow
relies heavily on Mobil Oil and the case upon which it
relies, Conoco, Inc. v. United States, 35 Fed. Cl. 309, 331
(1996).
In this lineage of cases, two oil companies had lease
contracts affording them the right to explore for and
10 BARLOW & HAUN, INC. v. US
develop oil off of the North Carolina coast. Mobil Oil, 530
U.S. at 607. These contracts included several provisions,
including one that required the Department of the Interi-
or (“Interior”) to approve a company’s plan for exploration
within 30 days of its submission. Id. at 610. Pursuant to
their contracts, the companies in Mobil Oil submitted
their final exploration plans to Interior. After the parties
entered into their leases with the government, but two
days prior to the submissions of their final exploration
plans, Congress passed a new law that prohibited the
Secretary of the Interior from approving any Exploration
Plan or Development and Production Plan. Id. at 611.
The Department of the Interior decided to suspend the
leases. Id. at 615.
The Supreme Court held that the Department of the
Interior could not suspend the leases, because there was
no basis for this type of suspension in the regulations.
Mobil Oil, 530 U.S. at 615-618. And the government
could not rely upon the new statute to justify the suspen-
sion, since the statute was passed after the leases were
entered. Id. at 616. Accordingly, the Supreme Court
found that, under the law in effect when the leases were
signed, the government exceeded its authority in suspend-
ing the leases. Id.
Here, Barlow argues that the BLM’s regulations im-
posed new provisions regarding trona miner safety not
contemplated by the leases. We disagree. Contrary to
Barlow’s argument, the BLM had authority to regulate
the safety of trona miners under the regulations that were
in effect when the leases began. For example, 43 C.F.R.
§ 3162.1(a) provides that lease operators must conduct all
operations “in a manner which . . . protects life and prop-
erty.” Additionally, 43 C.F.R. § 3162.5-2(a) states that a
lease operator “shall utilize and maintain materials and
equipment necessary to insure the safety of operating
conditions and procedures.” Barlow responds that the
BARLOW & HAUN, INC. v. US 11
regulations must specifically reference a particular min-
eral (here trona), and must explicitly list other worker
safety, in order for leases incorporating these regulations
to extend to trona miner worker safety. Barlow failed to
cite any case law in support of its position that such
specificity is required in the BLM’s regulations. Barlow’s
argument is also contradicted by the language of the
regulations, which expressly mention safety and the
protection of life and property. Accordingly, we hold that
the government did not breach the contract by imposing
conditions that protect worker safety.
B. Ripeness
Barlow also disputes the trial court’s dismissal of its
takings claim for lack of ripeness. Barlow argues that
implementation of the BLM’s regulations, which ended all
oil and gas development until trona mining was complet-
ed, constituted a taking. Finding that Barlow’s takings
claim was not ripe, the Court of Federal Claims declined
to reach the merits of this claim. Specifically, the trial
court found that Barlow was required to apply for an APD
after the final resource management plan had been ap-
proved, but that Barlow failed to do so. The court further
found that filing such an application would not have been
futile. Barlow disputes these findings.
Barlow argues that any APD application would have
been futile because the resource management plans made
clear the BLM’s intent to suspend oil and gas leases in the
MMTA. Barlow further argues that the BLM cannot
contradict the resource management plans and the final
EIS, which prohibited oil and gas drilling. Therefore,
Barlow contends, there could be no doubt that the BLM
would reject any APD application.
The BLM asserts that the Court of Federal Claims
correctly dismissed Barlow’s takings claim. The BLM
reasons that, since there was no final decision denying
12 BARLOW & HAUN, INC. v. US
Barlow’s ability to develop the leases, Barlow’s takings
claim is not ripe. 4 The BLM also argues that Barlow’s
argument regarding the futility of any APD application
fails because the BLM has discretion to grant or deny any
APD application.
The Fifth Amendment to the United States Constitu-
tion states that private property shall not “be taken for
public use without just compensation.” U.S. CONST.
amend. V. A takings claim can be premised on a regula-
tion “that deprives land of all economically beneficial use.”
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014–15
(1992); Good v. United States, 189 F.3d 1355, 1360 (Fed.
Cir. 1999).
“A claimant can show its claim was ripe with suffi-
cient evidence of the futility of further pursuit of a permit
through the administrative process.” Anaheim Gardens v.
United States, 444 F.3d 1309, 1315 (Fed. Cir. 2006) (citing
MacDonald v. City of Yolo, 477 U.S. 340, 350 n. 7 (1986)).
To determine if a takings claim is ripe, a court must
determine whether a party has obtained a final decision
from the reviewing agency, or whether the final decision
was unnecessary due to lack of discretion on the agency’s
part. Palazzolo v. Rhode Island, 533 U.S. 606, 618–20
(2001) (“While a landowner must give a land-use authori-
ty an opportunity to exercise its discretion, once it be-
comes clear that the agency lacks the discretion to permit
any development, or the permissible uses of the property
4 In the alternative, the BLM argues that Barlow’s
contract based rights cannot give rise to a takings claim
because the government acted within the framework of
the contract. The Court of Federal Claims did not reach
this argument. Because we find that Barlow’s takings
claim is not ripe, we likewise decline to address this
argument.
BARLOW & HAUN, INC. v. US 13
are known to a reasonable degree of certainty, a takings
claim is likely to have ripened.”).
“The general rule is that a claim for a regulatory tak-
ing ‘is not ripe until the government entity charged with
implementing the regulations has reached a final decision
regarding the application of the regulations to the proper-
ty at issue.’” Morris v. United States, 392 F.3d 1372, 1376
(Fed. Cir. 2004); see also Williamson Cty. Reg’l Planning
Comm’n v. Hamilton Bank, 473 U.S. 172, 190-91 (1985)
(holding that the agency must have “arrived at a final,
definitive position regarding how it will apply the regula-
tions at issue to the particular land in question.”) (empha-
sis added). Furthermore, a party must have first
“followed reasonable and necessary steps to allow regula-
tory agencies to exercise their full discretion” so that the
extent of the restriction on the property is known.
Palazzolo, 533 U.S. at 620-21. We have recognized that
“[t]he mere fact that an adverse decision may have been
likely does not excuse a party from a statutory or regula-
tory requirement that it exhaust administrative reme-
dies.” Corus Staal BV v. United States, 502 F.3d 1370,
1379 (Fed. Cir. 2007). “The failure to follow all applicable
administrative procedures can [] be excused in the limited
circumstance in which the administrative entity has no
discretion regarding the regulation’s applicability and its
only option is enforcement,” however. Greenbrier v.
United States, 193 F.3d 1348, 1359 (Fed. Cir. 1999); see
Anaheim Gardens, 444 F.3d at 1316. Thus, the
“[r]ipeness doctrine does not require a landowner to
submit applications for their own sake.” Palazzolo, 533
U.S. at 622.
Here, Barlow’s takings claim is not ripe because there
has not been a final decision from the BLM. Barlow relies
heavily on Washoe County v. United States, 319 F.3d 1320
(Fed. Cir. 2003) to argue that the BLM’s indefinite sus-
pension constitutes a final decision. In Washoe, the
14 BARLOW & HAUN, INC. v. US
appellants had submitted to the Department of Interior a
right-of-way permit for a water pipeline to cross federal
lands. Id. at 1323. Before it could approve the permit,
BLM had to complete an EIS and distribute it for com-
ment. It was during this process that the Secretary of the
Interior ordered the BLM to suspend its work on the EIS
until issues with the Army, an Indian Tribe, and the U.S.
Geological Survey could be resolved. Id. Since these
issues were never resolved, the Washoe appellants were
prevented from proceeding with their pipeline. While the
government alleged that the Washoe appellants’ takings
claim was not ripe because there was no final decision to
grant or deny the application for a right-of-way permit,
this court disagreed. Id. at 1324. Specifically, we found
that “there was no further reasonable and necessary step
Washoe County could have taken to allow the BLM an
opportunity to exercise its full discretion in acting upon
Washoe County’s permit application.” Id. (internal quota-
tions omitted).
Barlow further argues that filing an APD here would
have been futile because the BLM does not have the
discretion to approve an APD in light of the 2010 final
resource management plan and the final EIS. We disa-
gree. Unlike the appellant in Washoe, Barlow still had
the opportunity to file an APD with the BLM, and the
BLM had discretion to permit or deny the APD. The
testimony at trial supports the BLM’s contention that it
had discretion to decide whether to approve an APD even
after the suspension of oil and gas lease and development.
See Barlow, 118 Fed. Cl. at 611-12. In particular, the
testimony indicated that the BLM could still consider an
APD even if the leases were currently suspended. Id.
The BLM’s resource management plans also reflect this
discretion. Id. at 621 (“The revised RMP will recognize
valid existing rights.”); id. (“Existing leases would not be
affected by decisions resulting from this RMP that desig-
BARLOW & HAUN, INC. v. US 15
nate areas administratively unavailable for oil and gas
leasing.”). The fact that the BLM actually approved APDs
for Saurus during the early 2000s, when oil and gas
leases were suspended, further supports the trial court’s
finding that BLM did have discretion to grant APDs. See
id. at 607-09. Accordingly, we find that the trial court did
not err when it concluded that Barlow’s takings claim was
not ripe. See Palazzolo, 533 U.S. at 620-21.
We also find that Barlow failed to demonstrate that
the BLM made a decision with respect to its specific
property rights, as is required to establish a takings
claim. See id. Here, the BLM had established a well-
defined administrative process, which Barlow elected not
to engage in. The BLM could not make a property-specific
decision here because Barlow never submitted an APD to
develop any of the leases. For example, had Barlow
submitted an APD, the BLM could have determined
whether the proposed drilling site could avoid interaction
with a trona mine. Since the BLM has discretion to
evaluate each APD according to its individual merits,
Barlow could not have known how the agency would apply
the regulations to an APD. The trial court did not err in
concluding that the BLM did not have an opportunity to
make a specific determination with respect to Barlow’s
rights. While Barlow may be correct that the likelihood
that its APD would be approved is not high, we cannot
say it would have been futile for Barlow to submit an APD
in the first instance. We accordingly affirm the trial
court’s dismissal of Barlow’s takings claim for lack of
ripeness.
C. Standing
The Court of Federal Claims determined that Barlow
failed to establish standing for three of the four plaintiff
16 BARLOW & HAUN, INC. v. US
parties—TriContinental, NOWIO-S, and NOWIO-V. 5
Appellants dispute this dismissal, arguing that because
these entities have operating rights in the leases, they
should be joined to this action under Fed. R. Civ. P.
19(a)(1)(B).
In order to maintain a claim for breach of contract, a
party must be in privity with the United States. Cienega
Gardens v. United States, 194 F.3d 1231, 1239 (Fed. Cir.
1998). In contesting the parties’ dismissal, Appellants
cite to testimony that discusses the types of rights held by
the three dismissed parties. Contrary to Appellants’
assertions, however, the cited testimony does not demon-
strate that these parties had a contractual relationship
with the government.
After considering the parties’ testimony, the Court of
Federal Claims found that there was no evidence that
NOWIO-S and NOWIO-V had ever entered into a contrac-
tual relationship with the United States. Barlow, 118
Fed. Cl. at 620. The trial court next found that TriConti-
nental had no privity of contract with the United States
since June 1, 2000, well before the alleged breach of
contract occurred here. Id. The court thus determined
that the cited testimony merely demonstrates that these
parties had operating rights, not that they were in privity
with the government. Id. at 608 n.12. We see no error in
5 The Court of Federal Claims dismissed sua spon-
te the claims of TriContinental, NOWIO-S, and NOWIO-
V. The court can examine standing at all stages of the
litigation, and if it determines that it lacks subject-matter
jurisdiction over a claim at any time, it must dismiss the
claim. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31
(1990); Pandrol USA, LP v. Airboss Ry. Prods., 320 F.3d
1354, 1367 (Fed. Cir. 2003). Thus, the trial court did not
exceed its authority in dismissing the claims sua sponte.
BARLOW & HAUN, INC. v. US 17
the trial court’s findings. Accordingly, we affirm the
dismissal of TriContinental’s, NOWIO-S’s, and NOWIO-
V’s breach of contract claim.
CONCLUSION
We find no reversible error in the trial court’s conclu-
sions that (1) Barlow’s claim for breach of contract fails on
the merits; (2) Barlow’s takings claim is unripe, and
(3) TriContinental’s, NOWIO-S’s, and NOWIO-V’s breach
of contract claim fails for lack of standing. Accordingly,
we affirm.
AFFIRMED