Case: 19-2143 Document: 36 Page: 1 Filed: 04/07/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRAZER/EXTON DEVELOPMENT, L.P.,
WHITELAND HOLDINGS, L.P.,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-2143
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01081-MMS, Chief Judge Margaret M.
Sweeney.
______________________
Decided: April 7, 2020
______________________
MATTHEW MCDONALD, Steinmeyer Fiveash LLP, Talla-
hassee, FL, for plaintiffs-appellants.
DANIEL HALAINEN, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by JEFFREY B. CLARK, ERIKA KRANZ, ERIC GRANT.
______________________
Case: 19-2143 Document: 36 Page: 2 Filed: 04/07/2020
2 FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES
Before MOORE, CLEVENGER, and CHEN, Circuit Judges.
CLEVENGER, Circuit Judge.
Whiteland Holdings, L.P. (“Whiteland”) and Fra-
zer/Exton Development, L.P. (“Frazer/Exton”) (collectively
“Appellants”) appeal from an order from the Court of Fed-
eral Claims (“Claims Court”) granting the Government’s
(“Appellee”) motion to dismiss Appellants’ physical takings
claim for lack of subject-matter jurisdiction. Whiteland
Holdings, L.P. v. United States,
141 Fed. Cl. 702 (2019), re-
consideration denied, No. 18-1081L,
2019 WL 2158874
(Fed. Cl. May 17, 2019). The issue on appeal is whether
the Claims Court erred in its holding that Appellants’
claim accrued in 2011 and that the six-year statute of lim-
itations 1 had expired prior to Appellants filing their claim.
For the reasons set forth below, we affirm.
BACKGROUND
I. Facts
Foote Mineral Company (“Foote Mineral”) acquired the
subject property (“Foot Mineral Superfund Site”) 2 in 1941.
Whiteland Holdings, 141 Fed. Cl. at 705. The United
States Government thereafter purchased the Foot Mineral
1 Any claim against the United States filed in the
Court of Federal Claims must be “filed within six years af-
ter such claim first accrues.”
28 U.S.C. § 2501.
2 The subject property is located at 15 South Bacton
Hill Road in Frazer, Chester County, Pennsylvania, and is
situated primarily in East Whiteland Township. On Octo-
ber 14, 1992, the Environmental Protection Agency added
the subject property to the General Superfund Section of
the National Priorities List. National Priorities List for
Uncontrolled Hazardous Waste Sites, 57 Fed. Reg. at
47,183–84. The subject property then became known as
the “Foote Mineral Superfund Site.”
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FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES 3
Superfund Site in 1942 and engaged Foote Mineral to con-
duct lithium chemical processing operations for the Gov-
ernment during World War II. Id. The Government also
utilized the Foot Mineral Superfund Site for the production
of various lithium and munition products as well as the
stockpiling and storage of exotic ores. Id. Foote Mineral
reacquired the property in July 1946, after the conclusion
of World War II. Id. The Government, however, continued
to operate the site into the 1950s, engaging Foote Mineral
to produce and manufacture lithium halides and lithium
metal products, both in liquid and solid form, to ground a
variety of minerals and alloys, to produce inorganic fluxes
for the steel industry, and to store various exotic ores for
ammunition production and other potential uses as part of
the wartime effort. Id.
Unsurprisingly, site operations “created large quanti-
ties of hazardous substances.” United States v. Frazer Ex-
ton Dev. LP, No. 07-2666,
2008 WL 2876570, at *1 (E.D. Pa.
July 24, 2008). Those hazardous substances “were dis-
posed of in limestone quarries” on the subject property, re-
sulting in the contamination of “soil on the Site and the
ground water beneath the Site,” and “causing a plume of
contamination that extends approximately two miles east”
of the subject property.
Id.
Foote Mineral ceased its disposal practices in or around
1975 and “engaged in cleanup and monitoring efforts”
throughout the 1970s and 1980s.
Id. The United States
Environmental Protection Agency (“EPA”) “became in-
volved in remediation efforts in 1988.”
Id. On June 29,
1990, the EPA and Foote Mineral entered into a consent
order that required Foote Mineral to “conduct a groundwa-
ter survey, institute a five-year monitoring program of pri-
vate drinking water supplies, and provide an alternative
drinking water source to affected residents.”
Id. Foote
Mineral discontinued site operations in 1991.
Id.
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4 FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES
In September 1996, the EPA, pursuant to a second con-
sent order, required Foote Mineral to “conduct a remedial
investigation and feasibility study.”
Id. On November 20,
1998, however, Frazer/Exton acquired the Foote Mineral
Superfund Site. Frazer/Exton did so with “full knowledge
of the existing contamination of the Site.”
Id. In its pur-
chase agreement, Frazer/Exton agreed to assume liabili-
ties, obligations, and/or responsibilities arising under any
applicable environmental law for environmental conditions
including, among others, those arising in connection with
consent orders. In accordance therewith, Frazer/Exton
completed a Remedial Investigation Report and a Feasibil-
ity Study Report, pursuant to the 1996 consent order, in
June 2001.
On August 11, 2003, the EPA held a public hearing re-
garding its proposed plan for the Foote Mineral Superfund
Site. Frazer/Exton’s president was at that public hearing,
acknowledged that Frazer/Exton owned the site, and
stated that (1) Frazer/Exton was “wholly supportive of the
[EPA’s] proposed remedy and the proposed plan” and (2)
the company “look[ed] forward to an expeditious negotia-
tion of the implementation of the remedy with the EPA.”
Whiteland Holdings, 141 Fed. Cl. at 707 (citations omit-
ted).
The EPA issued a Record of Decision—selecting a per-
manent remedy for the Foote Mineral Superfund Site—on
March 31, 2006, and notified Foote Mineral and Frazer/Ex-
ton “of their potential liability to remedy the site” pursuant
to the Comprehensive Environmental Response, Compen-
sation, and Liability Act of 1980 (“CERCLA”). Frazer Ex-
ton,
2008 WL 2876570, at *1. Frazer/Exton “volunteered
to perform the work required by the [Record of Decision]”
on July 21, 2006.
Id. Frazer/Exton and the EPA then en-
tered into a proposed consent order “for the purpose of com-
mencing the design phase of the remedial action
contemplated by the [Record of Decision]” that provided for
Frazer/Exton to “pay for and perform the remedial action
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FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES 5
that was selected by the EPA in the [Record of Decision].”
Id. at *1–2.
While conducting the remediation work, Frazer/Exton
“learned that the volume of contaminated soil [was] larger
than was estimated in the [Record of Decision].” Id. at *2.
On April 7, 2008—after a thirty-day public comment period
and an EPA public availability session regarding the addi-
tional contamination—the EPA signed an Explanation of
Significant Differences which amended the Record of Deci-
sion by expanding the area to be capped, revising clean-up
standards for certain contaminants, and allowing the use
of permeability barriers in certain circumstances. Id. On
July 24, 2008, the United States District Court for the
Eastern District of Pennsylvania approved and entered the
consent order, finding that it was “procedurally and sub-
stantively fair” and “reasonable and consistent with
CERCLA’s goal of ensur[ing] the cleanup of the nation’s
hazardous waste sites.” Id. (internal quotation marks
omitted).
On October 28, 2010, the EPA issued a Superfund Pre-
liminary Close Out Report pertaining to the Foote Mineral
Superfund Site. According to Frazer/Exton, it “completed
the investigation, removal, and/or remediation of the Site
in 2011.” Whiteland Holdings, 141 Fed. Cl. at 708 (cita-
tions omitted). Whiteland acquired the subject property
via sheriff’s sale on November 17, 2016. On September 11,
2017, pursuant to Pennsylvania law, Whiteland executed
an environmental covenant (the “Pennsylvania Environ-
mental Covenant” or “PEC”) in favor of Frazer/Exton,
which effectuated the land use restrictions that were pre-
sent in the July 25, 2008 consent order. The EPA approved
the PEC nine days later.
II. Procedural History
Frazer/Exton filed suit before the Claims Court on July
24, 2018, and amended its complaint on August 24, 2018,
repeating the same allegations but adding Whiteland as an
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6 FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES
additional plaintiff. Appellants alleged that the Govern-
ment’s operations and disposal methods at the Foote Min-
eral Superfund Site resulted in environmental
contamination, effecting a physical taking without just
compensation in contravention of the Fifth Amendment to
the United States Constitution.
Appellee subsequently moved to dismiss the amended
complaint, alleging that Appellants’ “takings claim accrued
far more than six years before Frazer/Exton filed suit,” that
“Frazer/Exton has waived” any Takings Clause claim
against the federal government with respect to the Foote
Mineral Superfund Site, and that both Frazer/Exton and
Whiteland lack standing because “neither Frazer/Exton
nor Whiteland held any sort of property interest in the
Foote Mineral Superfund Site at the time of the [alleged]
taking.” Whiteland Holdings, 141 Fed. Cl. at 709 (citations
omitted).
The Claims Court took notice of certain public docu-
ments and concluded that Appellants’ takings claim ac-
crued no later than 2011—when Appellants represented
that they had completed the remediation—which was more
than six years before filing suit, and dismissed the
amended complaint for lack of jurisdiction under § 2501.
Id. at 712–13. Appellants filed a motion for reconsideration
on March 8, 2019, which the Claims Court denied on May
17, 2019. Whiteland Holdings, L.P. v. United States, No.
18-1081L,
2019 WL 2158874 (Fed. Cl. May 17, 2019). Ap-
pellants timely appealed on July 12, 2019. This Court has
appellate jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
STANDARD OF REVIEW
We review the Claims Court’s legal conclusion that it
lacked subject matter jurisdiction de novo. Stephens v.
United States,
884 F.3d 1151, 1155 (Fed. Cir. 2018). “In
deciding a motion to dismiss for lack of subject matter ju-
risdiction, the court accepts as true all uncontroverted fac-
tual allegations in the complaint, and construes them in
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FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES 7
the light most favorable to the plaintiff.”
Id. (quoting Estes
Exp. Lines v. United States,
739 F.3d 689, 692 (Fed. Cir.
2014)). We review the Claims Court’s determinations of ju-
risdictional facts for clear error.
Id.
DISCUSSION
The Supreme Court has recognized two kinds of tak-
ings: regulatory takings and physical takings. See Washoe
Cty., Nev. v. United States,
319 F.3d 1320, 1326 (Fed. Cir.
2003) (citing Lucas v. S.C. Coastal Council,
505 U.S. 1003,
1014–15 (1992)). Although the Supreme Court has de-
clined to set out a precise formula for determining whether
a regulatory taking has occurred, these types of takings
generally involve the regulation of private property. 3
Id.
A physical taking, on the other hand, generally occurs
when the government directly appropriates private prop-
erty or engages in the functional equivalent of a “‘practical
ouster of [the owner’s] possession.’”
Id. (citation omitted).
Although Appellants’ arguments on appeal focus
largely on the EPA’s regulatory land-use restrictions at the
Foote Mineral Superfund Site, which are set forth in the
PEC, the claim alleged in the amended complaint below,
and in Appellants’ preliminary statement on appeal, is for
a physical, not a regulatory, taking. See S.A. 4; see also
Appellants’ Brief at 1–2 (“This is a Fifth Amendment tak-
ings case seeking damages for the United States’ physical
taking of Plaintiffs’ property without just compensation.”).
Specifically, Appellants argue that the deposition of large
amounts of hazardous substances at the Foote Mineral Su-
perfund Site resulted in a “gradual [physical] taking by the
United States.” Id. at 2. Accordingly, the question for this
3 In Lucas and the other “regulatory takings” cases,
property owners claimed that government regulation of
their private property has gone “too far.” Washoe Cty.,
319
F.3d at 1327.
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8 FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES
court is not at what point did the EPA’s land-use re-
strictions allegedly result in a regulatory taking of Appel-
lants’ property, but at what point did Appellants’ physical
takings claim accrue?
Where a taking is caused by a gradual physical process,
accrual of the claim may be delayed until the situation has
“stabilized” such that the “consequences of the inundation
have so manifested themselves that a final account may be
struck.” United States v. Dickinson,
331 U.S. 745, 749
(1947); see also Banks v. United States,
314 F.3d 1304, 1308
(Fed. Cir. 2003). A final account may be struck “when it
becomes clear that the gradual [physical] process set into
motion by the government has effected a permanent tak-
ing.” Boling v. United States,
220 F.3d 1365, 1370–71 (Fed.
Cir. 2000). As explained in Boling, the “touchstone for any
stabilization analysis is determining when the environ-
mental damage has made such substantial inroads into the
property that the permanent nature of the taking is evi-
dent and the extent of the damage is foreseeable.”
Id. at
1373. Thus, the obligation to sue arises once the perma-
nent nature of the government action is evident, regardless
of whether damages are complete and fully calculable. See
Mildenberger v. United States,
643 F.3d 938, 946 (Fed. Cir.
2011) (citing Goodrich v. United States,
434 F.3d 1329,
1336 (Fed. Cir. 2006)).
“[J]ustifiable uncertainty about the permanency of the
taking,” however, prevents accrual of a physical takings
claim. Boling,
220 F.3d at 1372. Here, Appellants argue
that Appellee’s alleged taking by a gradual physical pro-
cess did not stabilize until the disposal of hazardous waste
resulted in land-use restrictions. According to Appellants,
“[u]ntil the EPA assessed the remediation and determined
the nature and extent of land use restrictions, there was no
predictability or permanence as to the extent to which [Ap-
pellants’] property rights would be restricted,” Appellants’
Brief at 22, and thus they remained justifiably uncertain
about the permanency of the taking. Those land use
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FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES 9
restrictions are a result of government regulation, how-
ever, and do not constitute a physical taking. 4 None of Ap-
pellants’ cited cases support expanding the stabilization
doctrine to cases where justifiable uncertainty extends be-
yond stabilization of the gradual physical taking, and up
until the Government takes regulatory action. 5 The court
declines this opportunity to so extend.
4 While the land use restrictions effectuated in the
PEC may or may not amount to a regulatory taking, Appel-
lants’ have only asserted a gradual physical takings claim
against the Government. Accordingly, Appellants have
waived any argument that the PEC’s restrictions consti-
tute a regulatory taking.
5 These cases all concern ongoing physical processes
where the permanency of the taking had not stabilized
within six years of the lawsuit. See Dickinson,
331 U.S. at
749 (holding claim for flooding did not accrue “as soon as”
land was first subject to intermittent flooding in light of the
“uncertainty of the damage” (i.e., taking)); Banks v. United
States,
741 F.3d 1268, 1280–82 (Fed. Cir. 2014) (holding
finding that “Appellants knew or should have known of the
damage prior to 1952 is clearly erroneous” where “it was
unreasonable to find that the Appellants were aware of
their claim regarding the permanency before the 1990s Re-
ports” showing that Corps’ “mitigation efforts could not re-
verse the damage caused by its jetties”); Banks,
314 F.3d
at 1309–10 (holding the Government’s promises to mitigate
damages caused by a continuous physical process delayed
accrual of a takings claim when the claimant demonstrated
that the “‘predictability [and permanence] of the extent of
damage to the [claimant’s] land’ was made justifiably un-
certain by the Corps’ mitigation efforts.”) (citations omit-
ted); Nw. La. Fish & Game Preserve Comm’n v. United
States,
446 F.3d 1285, 1290–92 (Fed. Cir. 2006) (holding
claim that weed overgrowth attributed to water
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10 FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES
Here, it is undisputed that the Government’s and/or
Foote Mineral’s deposition of large amounts of hazardous
substances into the soils and groundwater at the Foote
Mineral Superfund Site ceased decades before Appellants
filed suit on July 24, 2018. It is also undisputed that Ap-
pellants purchased the site with knowledge of the existing
contamination. Thus, Appellants’ invocation of the stabili-
zation doctrine is unavailing. Nevertheless, Appellants
could still successfully invoke the accrual suspension rule
if they demonstrate that either (1) the Government “con-
cealed its acts” or (2) the injury (i.e., the taking) was “in-
herently unknowable.” Young v. United States,
529 F.3d
1380, 1384 (Fed. Cir. 2008) (internal quotation marks omit-
ted). If, on the other hand, Appellants “knew or should
have known that the claim existed,” accrual will not be sus-
pended.
Id. The “knew or should have known” test for
claim accrual is “used interchangeably” with the “concealed
or inherently unknowable” test, although the latter is “both
more common and more precise.” Ingrum v. United States,
560 F.3d 1311, 1315 n.1 (Fed. Cir. 2009).
The Claims Court found Appellants’ argument that
their “harm did not exist until the loss of use and property
management did not accrue until Corps’ refusal to draw
down water made clear that problem was permanent); Ap-
plegate v. United States,
25 F.3d 1579, 1581–84 (Fed. Cir.
1994) (holding Government’s promises to restore sand pre-
vented stabilization of very gradual physical taking be-
cause “the landowners did not know when or if their land
would be permanently destroyed.”). In each case, the Court
concluded that the claim accrued when the permanency of
the gradual physical process stabilized and rendered dam-
ages foreseeable. In no case, however, did the court hold
that accrual is suspended even after the gradual physical
process stabilized and the permanent nature of the govern-
ment action was evident.
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FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES 11
value could be determined as a result of the Environmental
Covenant,” invokes the “inherently unknowable” prong of
the accrual suspension rule. Whiteland Holdings, 141 Fed.
Cl. at 711–12 (citation omitted). We agree. The “inherently
unknowable” test involves a “reasonableness component.”
Holmes v. United States,
657 F.3d 1303, 1320–21 (Fed. Cir.
2011). Thus, this court must determine whether the
Claims Court committed clear error in finding that Appel-
lants’ alleged ignorance of their claim prior to September
11, 2017 was unreasonable. Of particular note, the Claims
Court found, while construing the complaint in the light
most favorable to Appellants, that Frazer/Exton purchased
the site with full knowledge of the existing contamination,
see Whiteland Holdings, 141 Fed. Cl. at 706, that “Fra-
zer/Exton was aware of the presence of bromate in the
groundwater by 2003 at the latest, and the extended scope
of the contamination prior to entry of the consent [order] in
2008 . . . and most importantly . . . [that] Frazer/Exton itself
has averred that it completed the required remediation in
2011,” id. at 712. For these and the other reasons ade-
quately described in the Claims Court’s Opinion and Order
on Appellee’s motion to dismiss, and in its Opinion and Or-
der on Appellants’ motion for reconsideration, the court
holds that the Claims Court did not commit clear error in
finding that Appellants knew or should have known of the
permanency of the alleged physical taking, which began
the accrual of their claim, by 2011.
CONCLUSION
We hold that the Claims Court did not commit clear
error in finding that Appellants knew or should have
known of the scope and permanency of the alleged physical
taking by at least 2011. Thus, the Claims Court did not err
in finding that Appellants’ takings claim accrued more
than six years prior to the date on which they filed suit.
Accordingly, the order dismissing the amended complaint
for lack of subject-matter jurisdiction is
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12 FRAZER/EXTON DEVELOPMENT, L.P. v. UNITED STATES
AFFIRMED
COSTS
The parties shall bear their own costs.
