Reoforce, Inc. v. United States , 853 F.3d 1249 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
REOFORCE, INC., THEODORE SIMONSON,
RONALD STEHN,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5084
______________________
Appeal from the United States Court of Federal
Claims in No. 1:11-cv-00884-SGB, Judge Susan G.
Braden.
______________________
Decided: March 17, 2017
______________________
RICHARD MERRITT STEPHENS, Stephens & Klinge LLP,
Bellevue, WA, argued for plaintiffs-appellants.
JEFFREY STEVEN BEELAERT, Appellate Section, Envi-
ronment and Natural Resources Division, United States
Department of Justice, Washington, DC, argued for
defendant-appellee. Also represented by JOHN C. CRUDEN.
BRIAN T. HODGES, Pacific Legal Foundation, Bellevue,
WA, for amici curiae Pacific Legal Foundation, American
2 REOFORCE, INC. v. US
Exploration & Mining Association, Industrial Minerals
Association-North America.
______________________
Before NEWMAN, CHEN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
In this takings case, we must decide whether the Gov-
ernment prevented appellants Reoforce, Inc., Theodore
Simonson, and Ronald Stehn (collectively “Reoforce”) from
mining on a tract of land in California for over a decade,
thus taking Reoforce’s property rights in a manner com-
pensable under the Fifth Amendment of the Constitution.
Reoforce brought this takings claim in the Court of Fed-
eral Claims. After a trial, the Claims Court found that
Reoforce did not have standing and that Reoforce had also
failed to prove the merits of its claim. Contrary to the
finding of the Claims Court, we conclude that Reoforce
has standing to bring its claim. We agree, however, with
the Claims Court’s judgment that the Government’s acts
did not effect a compensable taking of Reoforce’s property.
We thus affirm.
BACKGROUND
I.
In 1872, Congress enacted the General Mining Law,
which made “all valuable mineral deposits in lands be-
longing to the United States . . . free and open to explora-
tion and purchase.” 30 U.S.C. § 22. The law “made public
lands available to people for the purpose of mining valua-
ble mineral deposits” by “reward[ing] and encourag[ing]
the discovery of minerals that are valuable in an economic
sense.” United States v. Coleman, 390 U.S. 599, 602
(1968).
Under the General Mining Law, a citizen who discov-
ers valuable minerals on a public land may secure a
mining claim. See 30 U.S.C. § 28. To do so, a citizen must
REOFORCE, INC. v. US 3
“locate” her claim, which includes marking the boundary
of the claim, posting a discovery monument and notice,
and maintaining adequate records of the location date
and boundaries of the claim. See id. Location of a claim,
alongside the “‘[d]iscovery’ of a mineral deposit, . . . gives
an individual the right of exclusive possession of the land
for mining purposes.” United States v. Locke, 471 U.S. 84,
86 (1985) (quoting 30 U.S.C. § 26).
A locator secures mining rights only by discovering a
valuable mineral, and Congress has made clear that
“common varieties of sand, stone, gravel, pumice, pumic-
ite, or cinders” are not valuable mineral deposits under
the Mining Law. 30 U.S.C. § 611. Whether a mineral is
valuable is determined by applying a “prudent-man test.”
Coleman, 390 U.S. at 602. Under this test, the mineral
deposit “must be of such a character that a person of
ordinary prudence would be justified in the further ex-
penditure of his labor and means, with a reasonable
prospect of success, in developing a valuable mine.” Id.
(internal quotations omitted).
Ordinarily, the Bureau of Land Management (“BLM”)
makes a “common variety” determination when a claim
locator proposes to develop a deposit of an otherwise
common material that may have distinct and special
value. 43 C.F.R. § 3809.101; see also id. § 3830.12(b)
(location requirements for uncommon varieties). “[T]he
Secretary of the Interior, as the head of the department,
is charged with seeing that this authority is rightly exer-
cised to the end that valid claims may be recognized,
invalid ones eliminated and the rights of the public pre-
served.” Best v. Humboldt Placer Min. Co., 371 U.S. 334,
337 (1963).
If BLM determines that the mineral is a common va-
riety, the mining claimant may either voluntarily relin-
quish its claim or BLM may institute a contest proceeding
against the claimant. 43 C.F.R. § 3809.101(c). A contest
4 REOFORCE, INC. v. US
proceeding is an administrative proceeding used to de-
termine the legality or validity of mining claims. Id. at
§ 4.451-1.
Once established, a mining claimant receives “a ‘pa-
tent,’ that is, an official document issued by the United
States attesting that fee title to the land is in the private
owner.” Kunkes v. United States, 78 F.3d 1549, 1551
(Fed. Cir. 1996). A patented mining claim is “a property
right in the full sense.” Union Oil Co. v. Smith, 249 U.S.
337, 349 (1919).
Until a patent issues, the mining claimant has an
“unpatented” mining claim, a “unique form of property.”
Best, 371 U.S. at 335–36. An unpatented claim entitles a
claim holder to “extract and sell minerals without paying
royalties to the Government,” even though “[t]itle to the
underlying fee simple estate in the land remains in the
United States.” Kunkes, 78 F.3d at 1551. But these
claims are conditional property interests in a highly
regulated industry. Id. at 1553. This is because the
Government has “plenary authority over the administra-
tion of public lands, including mineral lands; and it has
been given broad authority to issue regulations concern-
ing them.” Best, 371 U.S. at 336. Holders of unpatented
mining claims “take their claims with the knowledge that
the Government, as owner of the underlying fee title,
maintains broad regulatory powers over the use of the
public lands on which unpatented mining claims are
located.” Kunkes, 78 F.3d at 1553. But “[e]ven though
title to the fee estate remains in the United States, these
unpatented mining claims are themselves property pro-
tected by the Fifth Amendment against uncompensated
takings.” Id. at 1551.
II.
In the early 1980s, Theodore Simonson began explor-
ing southern California for pumicite deposits. Reoforce,
Inc. v. United States, 118 Fed. Cl. 632, 641 (2014) (Claims
REOFORCE, INC. v. US 5
Court Op.); J.A. 487. Pumicite is similar in composition to
pumice, a porous volcanic rock. The composition of both
pumice and pumicite includes a high amount of volcanic
glass. But unlike hardened pumice, pumicite is a finely
divided dust or powder consisting of finely divided parti-
cles of volcanic glass. It was the glass content of pumicite
that piqued Mr. Simonson’s interest in the mineral.
Because pumicite’s glass has an amorphous structure—it
forms in various shapes, including fine beads and
shards—Mr. Simonson thought that pumicite had many
potential commercial applications. J.A. 122–24.
Mr. Simonson found high quality pumicite deposits in
Kern County, California. In 1983, he located twenty-one
mining claims in his name. Claims Court Op., 118 Fed.
Cl. at 641. In 1984 and 1985, he located two more claims.
Id. Although the claims were in his name, Mr. Simonson
and his wife did business as Rheoforce or the Rheoforce
Filler Company. J.A. 12. The company’s name was later
changed to Reoforce, Inc., and Mr. Simonson called the
pumicite in his located mining claims “Rheolite,” or “Re-
oforce pumicite.” J.A. 487–88.
A.
For the next two decades, Mr. Simonson investigated
the material properties of Reoforce pumicite to find com-
mercial applications. He commissioned chemical and
physical analyses as well as scientific testing. For exam-
ple, Mr. Simonson contacted a Professor of Plastics Engi-
neering to determine whether Reoforce pumicite could be
used as a filler and extender in paints and plastics.
Claims Court Op., 118 Fed. Cl. at 641. The professor
believed that Reoforce pumicite showed promise. He
prepared and presented a conference report concluding
that:
Reoforce pumicite offers some very attractive ad-
vantages, including: (1) use as a filler in polypro-
pylene, as it led to comparable tensile properties
6 REOFORCE, INC. v. US
and flexural strength, improved flexural modulus,
and improved hardness/scratch resistance and
improved handling and processability; and (2) use
as a filler in ABS, where it led to improved tensile
strength, tensile modulus, flexural strength, flex-
ural modulus, impact strength, and improved
hardness/scratch resistance and improved han-
dling and processability.
Id. at 642 (internal quotations omitted).
This report was not alone. In the first two decades af-
ter his discovery of Reoforce pumicite, Mr. Simonson
received several technical studies indicating the promise
of Reoforce pumicite in commercial applications. For
example, in September 1987, Mr. Simonson received
preliminary test results conducted by an international
supplier of high-performance plastic compounds and
resins, finding Reoforce pumicite to be “a high quality
specialty silicate” useful as an additive in plastic films.
Suntec Paint Inc. (“Suntec”) also saw Reoforce pumicite as
potentially useful. It had been searching “for a[] [paint]
extender which would provide [them] with further savings
of Ti02 without affecting the physical properties of [their]
latex flat [paint] formulations.” Id. at 645 (first alteration
added). Suntech found paint made with Reoforce pumic-
ite to be equal in performance to its standard formula and
found it produced “a savings of 15 lbs. of Ti02 and a
savings of 5 cents per gallon (with Rheolite 16M at
.25/lb.).” Id. Suntec indicated that it was willing to
purchase Reoforce pumicite, although it later withdrew its
interest. Id. Similarly, PRA Laboratories performed tests
that showed Reoforce pumicite could save 15% of Ti02 per
gallon of flat-white latex base paint. Id. Another compa-
ny, Lindsay Finishes Inc., advised Mr. Simonson that
Reoforce pumicite could save paint manufacturers approx-
imately 28 to 30 cents per pound by using less Ti02. Id.
REOFORCE, INC. v. US 7
Repeated lab reports and industry analyses confirmed
that Reoforce pumicite could be useful in industrial paint
and plastic manufacture. Id. at 646–48. During this time
Reoforce received its first orders, including two for 5,000
pounds each of “Reoforce Pumicite.” Id. at 651. On
October 20, 1991, the Technical Service Manager for
English Clay sent another letter to Placer Dome U.S.
describing the Reoforce pumicite deposit as “unique,” with
market potential, because it had a very low level of crys-
talline silica and “will have an application in the paint
and plastics markets . . . . probably be useful in caulks
and sealants . . . . , [and] possibly be usable in inks, tex-
tiles, [and] fiberglass reinforced polyester (FRP) applica-
tions.” Id. at 647 (alterations in original).
At the same time that Mr. Simonson received news
that his Reoforce pumicite might find successful applica-
tions in the plastics industry, he also learned that some
other fillers and extenders, such as crystalline silica, were
potentially carcinogenic because of high levels of crystal-
line quartz and crystabolite. Id. at 641–42. Norwegian
Talc sent a letter to Mr. Simonson stating that “[a]ll
parties agree in principle that your amorphous silica is
unique in its properties and geological composition, and
represent[s] a unique opportunity in the ever-increasing
need to replace crystalline silica in a variety of end appli-
cations.” Id. at 647 (alterations in original).
Mr. Simonson requested further testing to see if Reoforce
pumicite contained those potentially dangerous mole-
cules. The tests came back negative; Reoforce pumicite
did not contain quartz or crystabolite. Id.
B.
In 1987, Mr. Simonson submitted a Plan of Opera-
tions to BLM for Reoforce to mine approximately 100,000
tons per year from his claims. Id. at 642; J.A. 457. Regu-
lations required claimants such as Mr. Simonson to
submit a plan of operations to BLM “before beginning
8 REOFORCE, INC. v. US
operations greater than casual use.” 43 C.F.R.
§ 3809.11(a). BLM further required clarification and
testing from Mr. Simonson before it approved his Plan of
Operations. Claims Court Op., 118 Fed. Cl. at 643. After
Reoforce complied, BLM conditionally approved its plan.
The conditional approval included twenty stipulations,
including that the “material, pumicite, approved for
extraction under this [Plan of Operations] is suspected by
[BLM] as not being subject to location under the General
Mining Laws,” and that a determination of that question
would be made at an unspecified time. Id. at 633 (quoting
J.A. 649) (first alteration added).
The conditional approval letter made clear that BLM
had not yet determined whether Mr. Simonson had dis-
covered valuable minerals locatable under the General
Mining Law. “In addition, the BLM advised that if
pumicite is not locatable under the General Mining Law,
but was mined under an approved [Plan of Operations],
Mr. Simonson would be required to pay a per-ton royalty
rate to the BLM based on prevailing market conditions.”
Id. Nevertheless, Mr. Simonson could now proceed with
his mining plans. In July 1987, BLM sent a letter to
Mr. Simonson to clarify “some confusion, misconception,
and anxiety,” arising from the stipulations in the May 28,
1987 conditional approval and advise that, “[t]o put it
simply, your mining plan of operation has been approved.”
Id. (alteration in original).
Despite BLM’s reassurances in 1987, Mr. Simonson
decided to postpone the start of mining operations. He
testified that he planned to wait until BLM completed its
common/uncommon variety determination. Claims Court
Op., 118 Fed. Cl. at 643. Even so, Mr. Simonson contin-
ued preparing to commercialize Reoforce pumicite. He
hired a consultant to complete a business plan to help him
generate investor interest in a $4 million financing plan.
Id. at 644. The plan suggested that Reoforce pumicite
could be used as a substitute for 5% to 10% of the Ti02
REOFORCE, INC. v. US 9
that was used, at the time, as a “hiding pigment [to
increase opacity] . . . in paint, ink, rubber, paper and
plastics.” Id. Around the same time, Mr. Simonson
discussed the possible sale of Reoforce to Placer Dome US,
a large commercial mining company. Id. Mr. Simonson
testified that he refused Placer Dome’s offer to buy Re-
oforce’s claims for $100,000. Id.
In 1989, Mr. Simonson received good news from BLM:
the agency concluded that Reoforce pumicite was an
uncommon mineral, locatable under federal law. J.A. 488.
The agency conducted a geological field examination and
produced a Mineral Report concluding that Reoforce
pumicite was “an uncommon variety and that it[s] pro-
posed use, and all of the potential uses . . . clearly fall
within a category of uncommon uses.” Id. But the report
clarified that it made no determination as to whether
Mr. Simonson’s mining claims were valid because the
agency had not yet studied economic data and other
information to determine whether these conditions justi-
fied further expenditure to develop the mine. J.A. 489. In
other words, the report only addressed whether Reoforce
pumicite was a common variety mineral, but it did not
establish that Mr. Simonson had a right to patent his
claims. Id.
A few months later, BLM approved Reoforce’s 1987
Plan of Operations. Claims Court Op., 118 Fed. Cl. at
646. In 1992, Reoforce requested a modification of ap-
proval of its plan to increase the annual tonnage of mate-
rial mined to two-hundred thousand tons. Id. at 648.
BLM granted the request. J.A. 951. Nevertheless, be-
tween 1987 and 1995, Reoforce mined only about two-
hundred tons of pumicite. J.A. 163–65. Of the two-
hundred tons it mined, Reoforce sold only five. J.A. 163.
C.
In late 1995, Mr. Simonson received a letter from
BLM explaining that the lands encompassing Reoforce’s
10 REOFORCE, INC. v. US
mining claims would be transferred to the State of Cali-
fornia under the California Desert Protection Act to
become part of Red Rock Canyon State Park. J.A. 998–
99. The letter explained that some mining claimants
“may have valid existing rights” that would survive the
transfer. J.A. 998. The letter noted that “[t]hese rights
are predicated on the discovery . . . of a valuable mineral
deposit” within the claim. Id. The letter was addressed
to all mining claimants and did not specify whether
Mr. Simonson’s mining claims would survive the land
transfer. Id.
BLM attached to this letter a Memorandum of Under-
standing (“MOU”) between BLM and the California Parks
and Recreation. J.A. 1000–03. Its purpose was to provide
for the “management and administration of the lands
within the Red Rock Canyon State Park that are not
conveyed to the State Parks . . . due to being encumbered
by unpatented mining claims.” J.A. 1000. Specifically,
the MOU permitted some mining claimants to continue
operating while suspending others, depending on the
claimants’ use of the mine before the MOU. Because the
MOU affected unpatented mining claims, BLM explained
that the ultimate fate of these claims depended on the
outcome of a valid existing rights determination (“validity
determination”).
The MOU divided mining claims into three groups.
The MOU did not, however, indicate which group cap-
tured Reoforce’s claims, and the parties continue to dis-
pute here on appeal whether Reoforce’s claims fell in
Group Two or Group Three. Group Two, titled “Claims
and Sites with Existing [Plans of Operations] for Explora-
tion activities,” applied to “[e]xisting [Plans of Operations]
issued pursuant to 43 CFR 3809 for exploration activities
(not for producing mines).” J.A. 1001. The MOU directed
Group Two claimants to “suspend[] [activities] until a
[validity] determination can be completed by a certified
mineral examiner.” Id. While Group Two claimants were
REOFORCE, INC. v. US 11
to immediately suspend their activities, Group Three
claimants could continue activities on an interim basis.
Id. Group Three, titled “Claims and Sites with Existing
[Plans of Operations] for Producing Mines,” was “restrict-
ed to operating mines under existing [Plans of Opera-
tions], those diligently and continuously extracting and
marketing ores and related commodities from their min-
ing claims and sites.” Id. Finally, the MOU explained
that unpatented claims ultimately judged invalid would
transfer to California State Parks. Id.
D.
A few months after sending the MOU, BLM sent
Mr. Simonson a letter concerning another, separate
barrier to Reoforce’s mining operations, California’s
Surface Mining and Reclamation Act (“SMARA”).
J.A. 1005. BLM explained that SMARA applied to Re-
oforce’s claims, so it must submit a reclamation plan to
comply with the act. Id.
The next year, in 1996, Reoforce held its first share-
holder meeting and elected a board of directors.
J.A. 1012. The elected board did not include
Mr. Simonson. Id. Thereafter, Mr. Simonson was “not
allowed to represent the company in any way.” J.A 1023.
“Another shareholder, John Foggan, assumed that posi-
tion, [and t]hereafter Reoforce began to use the name the
Foggan Group.” Claims Court Op., 118 Fed. Cl. at 654
(internal quotation marks omitted).
The Foggan Group’s meeting minutes reflected dis-
cussions to expand mining operations. The shareholders
discussed plans “to extract approximately 200 more tons
of product sometime in March or April [1996],” but tabled
the plan “until existence of [a] first [customer] order.”
J.A. 1017. The Foggan Group also pursued a joint ven-
ture for commercial production and submitted a new Plan
of Operations to BLM. J.A. 1021–22. Ultimately, orders
did not materialize and the venture failed. J.A. 146.
12 REOFORCE, INC. v. US
Investors withdrew from the Foggan Group and the joint
venture abandoned Reoforce. Id.
In 2002, Mr. Simonson reactivated the company and
reassumed his role as its president. J.A. 147. He also
sent BLM a letter stating that he intended to “begin
mining” pumicite. J.A. 1047. The letter thanked BLM for
its “patience over the years” and for “understanding the
difficulty of a one-man project.” Id.
In 2003, Mr. Simonson sent a letter to inform BLM
that Reoforce had satisfied the requirements of SMARA,
the same requirements that BLM had notified him of
almost a decade earlier, and that he intended to start
mining on his claims. Claims Court Op., 118 Fed. Cl. at
657. Mr. Simonson explained that, “[i]n waiting for this
approval, I have been hindered in the mining of this
pumicite.” Id. Now, having the SMARA approval,
Mr. Simonson informed BLM that he intended to “com-
mence [his] approved mining operation.” J.A. 1091.
E.
In 2004, BLM initiated a validity determination to
consider whether Mr. Simonson’s claims were valid under
the mining law. The investigation concluded in 2006 with
a mineral report finding Reoforce’s claims invalid.
BLM conducted its investigation in accordance with
the Supreme Court’s prudent-man and marketability
tests to determine whether Reoforce pumicite was a
valuable mineral. J.A. 1181–87. BLM explained that “[i]t
is not enough to say that there might be a market for this
deposit; one must be able to say that there is a market.”
J.A. 1192.
BLM found that Reoforce pumicite was not marketa-
ble. J.A. 1173. Even though BLM had concluded in 1989
that Reoforce pumicite was an uncommon variety miner-
al, BLM found that it was not a “valuable mineral depos-
it[]” under the 1872 mining law. J.A. 1181. It arrived at
REOFORCE, INC. v. US 13
this conclusion through contacts with potential customers,
finding that “[a]ll but one indicated that they do not want
or need the material marketed by Reoforce, Inc.”
J.A. 1115. The one potential buyer intended to buy Re-
oforce pumicite on an as-needed, per-truckload basis. Id.
The mineral examiner thus concluded that there was no
market for Reoforce pumicite:
I have examined those markets where Mr. Simon-
son stated his material could be directed. These
included fillers and extenders in paints and plas-
tics; soft, light abrasives for polishing and metal
cleaning; and other possible markets where
pumicite historically and presently has been di-
rected that would support the deposit as being an
uncommon variety pumice subject to location. I
cannot support that pumicite from the El Paso
claims can displace aluminum oxide in blast
cleaning operations because the properties such as
density and hardness are so different. Based on
my inquiries to Mr. Simonson’s market contacts
for paints and fillers, examination of this market
where pumicite would displace other industrial
mineral(s), and the fact that the Cudahy opera-
tions mining the same material have failed to
show sales in a market only allows me to conclude
that a market has not existed for the subject pum-
ice on the El Paso placer claims from 1995, the
date of segregation from the operation of the min-
ing laws, to the date of this report.
J.A. 1116 (emphasis added). In light of this report, BLM
concluded that Mr. Simonson had failed to prove that he
had discovered a valuable mineral under the General
Mining Law, and thus concluded that his mining claims
were invalid.
14 REOFORCE, INC. v. US
F.
In February 2007, the Department of Interior initiat-
ed a contest proceeding within its Office of Hearings and
Appeals. J.A. 109. Citing the 2006 mineral report, the
Department sought a declaration that Reoforce’s mining
claims were invalid and that the United States owned the
property, free of mining claims. Id. The Department’s
complaint alleged that no valuable mineral discovery had
been made on the claims, that no minerals had been
found or exposed on the claims, and that the minerals
that had been found on those claims were of common
variety under the Common Varieties Act of 1955. Id.
In May 2008, the Department of Interior settled the
contest with Reoforce. Id. The parties submitted a set-
tlement agreement to the Office of Hearings and Appeals,
and an Administrative Law Judge accepted the settle-
ment as “serv[ing] to resolve all of the issues on appeal in
this docket.” J.A. 1500. In the settlement agreement, the
parties agreed that Reoforce would relinquish its rights in
twenty of the twenty-three disputed claims. J.A. 1365.
But as to three of the claims, Reoforce retained some
rights.
On these three claims, the settlement agreement
granted Reoforce rights to mine in accordance with its
Plan of Operations, subject to conditions. J.A. 1365–66.
If those conditions were not met, the settlement agree-
ment specified that Reoforce would relinquish its mining
rights. The conditions required Reoforce to begin mining
within twenty-four months of the settlement agreement
and to not cease mining operations for any continuous
period of twelve months. J.A. 1366. Thus, subject to
those conditions, Reoforce gained the right to mine. Id.
III.
In 2011, Reoforce filed the complaint in the Court of
Federal Claims that is the origin of the instant appeal.
REOFORCE, INC. v. US 15
Reoforce sought just compensation for an alleged tempo-
rary taking from 1995 to 2008 of the three mining claims
it retained in the Settlement Agreement. 1 Reoforce
alleged that it had been on the cusp of significant mining
operations in 1995, but also acknowledged that it “was not
engaged in ‘diligent and continuous’ mining.” J.A. 99.
Reoforce contended that its mining activities therefore fell
within Group Two of the MOU, the group pertaining to
mines with existing Plans of Opertions for exploration
activities and the group for which members were required
to cease activities until the completion of a validity de-
termination. Id. Reoforce thus alleged that BLM’s 1995
MOU had forced it to cease activities until the settlement
agreement and the close of the validity determination in
2008. Reoforce asserted that this cessation was a tempo-
rary taking of its property rights compensable under the
Fifth Amendment.
The Claims Court held a six-day bench trial and is-
sued a memorandum and final order setting forth its
conclusions of fact and law.
The Claims Court first considered whether Reoforce’s
claim was barred by the six-year statute of limitations set
forth in 28 U.S.C. § 2501. Claims Court Op., 118 Fed. Cl.
at 663. The statute, the court noted, is jurisdictional and
could not be equitably tolled. Id. But the court also noted
that the statute did not begin to run in 1995 because a
takings claim will not accrue until it ripens. The court
reasoned that Reoforce’s takings claim was not ripe in
1995, and only ripened when BLM effectively determined
the validity of Reoforce’s mining claims in the May 12,
2008 settlement agreement. The agreement, the court
concluded, was a final agency action that fixed the parties’
1 Ronald Stehn, a Reoforce investor, was later add-
ed to this case as a Plaintiff. J.A. 35.
16 REOFORCE, INC. v. US
potential liability and thus ripened Reoforce’s claim. Id.
Because Reoforce’s claim only began accruing in 2008, the
court concluded that Reoforce’s 2011 claim was not barred
by the six-year statute of limitations. Id. at 664.
The court next considered whether Reoforce had
standing to bring its suit. The court concluded that
Reoforce did not have standing because it failed to satisfy
the “injury in fact” requirement. Reoforce could not prove
it suffered a legally cognizable injury, the court concluded,
because it had relinquished its property rights before
filing suit. Id. at 665. The court found that Reoforce lost
its title because Reoforce did not prove that it met the
settlement agreement’s conditions—conditions that, if not
met, would revoke Reoforce’s mining rights. Id.
Despite finding that Reoforce lacked standing, the
court next considered the merits of Reoforce’s takings
claim. Specifically, the court asked whether Reoforce had
established that the Government’s acts effected a regula-
tory taking under the framework announced in Penn
Central Transportation Co. v. City of New York, 438 U.S.
104, 136 (1978). Claims Court Op., 118 Fed. Cl. at 666.
The court held that Reoforce failed to establish its claim
on three grounds.
First, the court held that Reoforce did not have a
compensable property right in 1995, the time the alleged
taking began, because its “property interest did not vest
until the May 12, 2008 Settlement Agreement.” Id.
Because Reoforce had no property right at the time of the
taking, the court concluded that Reoforce could not estab-
lish its taking claim. Id.
Second, the court held that, even if Reoforce had a
property right at the time of the alleged taking, the MOU
did not prohibit Reoforce from mining. Id. The court
found that, as a factual matter, the MOU did not oblige
Reoforce to stop mining. Id. The court arrived at this
finding by reviewing, inter alia, Reoforce’s continuing
REOFORCE, INC. v. US 17
efforts to mine the sites after 1995 and a letter from BLM
sent just before the MOU issued stating that Reoforce
could continue mining under the MOU. Id.
Third, the court held that, even assuming the MOU
had prohibited Reoforce from mining, Reoforce did not
establish that the MOU interfered with its reasonable
investment-backed expectations under the Penn Central
framework. Id. at 666–68. The court found that Reoforce
was “[a]t best, . . . several years away from commercial-
scale mining on August 7, 1995.” Id. at 667. “As such,”
the court concluded, “[Reoforce] incurred no economic
harm caused by the August 7, 1995 MOU or any other
BLM action.” Id. The court further explained that Re-
oforce did not uniquely bear the burden of the MOU and
that BLM acted in good faith when imposing the regula-
tion. Id. at 667–68. The court thus concluded that the
Government had not interfered with Reoforce’s reasonable
investment-backed expectations.
For those reasons, the court held that Reoforce had
not established that it suffered a compensable taking. Id.
at 688. Reoforce moved for reconsideration and the
Claims Court denied the motion.
Reoforce appealed. We have jurisdiction to review fi-
nal decisions from the United States Court of Federal
Claims pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
Before we reach the merits of Reoforce’s claim, we
must first consider two threshold issues: whether Re-
oforce has an injury in fact sufficient to confer standing,
and whether Reoforce’s claims are barred by the statute of
limitations.
I.
For a plaintiff to have standing under Article III of
the Constitution, it must “allege[] (and ultimately prove[])
18 REOFORCE, INC. v. US
an ‘injury in fact’—a harm . . . that is ‘concrete’ and ‘actu-
al or imminent, not ‘conjectural’ or ‘hypothetical.’” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998)
(quoting Whitmore v. Arkansas, 495 U.S. 149 (1990)); see
also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992). The Claims Court held that Reoforce failed to
satisfy this injury-in-fact requirement and thus did not
have standing. Claims Court Op., 118 Fed. Cl. at 665. On
appeal, both parties agree that Reoforce has satisfied its
standing requirements in this case. Nevertheless, be-
cause standing is a jurisdictional prerequisite, we must
independently determine whether Reoforce has satisfied
its Article III standing requirements. See Fuji Photo Film
Co. v. Int’l Trade Comm’n, 474 F.3d 1281, 1289 (Fed. Cir.
2007).
The Claims Court held that Reoforce had compro-
mised its standing by voluntarily relinquishing its proper-
ty rights before filing suit. Claims Court Op., 118 Fed. Cl.
at 665. The court found that Reoforce had lost its rights
because it had presented no evidence that it met the
settlement agreement’s condition to begin mining within
24 months. Id. The court concluded that Reoforce’s
failure to meet these conditions was a voluntary relin-
quishment of its property rights. Id. Because this relin-
quishment occurred after the alleged taking but before
Reoforce filed suit, the court found that Reoforce had no
standing to bring the suit. Id. The court acknowledged
that this theory of standing, one not suggested by either
party, “may be viewed as harsh.” Id. But the court
nevertheless held that this after-the-taking relinquish-
ment of rights foreclosed Reoforce’s suit. Id.
We cannot square the Claims Court’s holding with our
precedent. “It is axiomatic that only persons with a valid
property interest at the time of the taking are entitled to
compensation.” Wyatt v. United States, 271 F.3d 1090,
1096 (Fed. Cir. 2001) (emphasis added); see also Cienega
Gardens v. United States, 331 F.3d 1319, 1329 (Fed. Cir.
REOFORCE, INC. v. US 19
2003). While precedent requires that the property owner
prove its ownership at the time of the alleged taking, we
are aware of no case that requires the property owner to
possess those same rights during litigation. We thus
decline to adopt the Claims Court’s rule that a property
owner must not relinquish its property rights before filing
suit.
We conclude that Reoforce has standing to bring its
suit here. Reoforce has alleged facts sufficient to show
that it suffered a concrete and particularized injury in
fact, that the injury was caused by the challenged action,
and that the injury is redressable by a favorable decision.
See Lujan, 504 U.S. at 560–61. Although the Government
argues that Reoforce did not possess a valid mining claim
and thus a compensable property interest at the time of
the taking, that dispute does not defeat standing. It is a
dispute over the merits of the case. Standing is “a
threshold inquiry that in no way depends on the merits of
the case.” Izumi Seimitsu Kogyo Kabushiki Kaisha v.
U.S. Philips Corp., 510 U.S. 27, 31 (1993) (per curiam)
(quotation marks omitted). “[T]he absence of a valid (as
opposed to arguable) cause of action does not implicate
subject-matter jurisdiction, i.e., the courts’ statutory or
constitutional power to adjudicate the case.” Steel Co.,
523 U.S. at 89. Thus, as the Government acknowledges,
its dispute of the validity of Reoforce’s property right does
not defeat Reoforce’s standing to bring its claim.
II.
The Government argues, however, that Reoforce’s
claims are barred by the statute of limitations set forth in
28 U.S.C. § 2501. The statute provides that “[e]very claim
of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is
filed within six years after such claim first accrues.”
28 U.S.C. § 2501. This statute of limitations is “some-
times referred to . . . as ‘jurisdictional.’” John R. Sand &
20 REOFORCE, INC. v. US
Gravel Co. v. United States, 552 U.S. 130, 133 (2008).
Such statutes of limitations may not be equitably tolled or
waived. Id.
The Government contends that if, as Reoforce alleges,
its taking accrued in 1995 when BLM issued the MOU,
then Reoforce filed its 2011 suit ten years too late. Re-
oforce replies that its claim is not barred by the statute of
limitations because its claim did not accrue until it rip-
ened upon the settlement of BLM’s validity determination
in 2008, even though it alleges damages beginning with
the 1995 MOU. It argues that because the statute of
limitations does not accrue until a claim is ripe, its 2011
case was filed within the six-year limitations period. We
agree.
“[T]he standard rule [is] that the limitations period
commences when the plaintiff has ‘a complete and present
cause of action.’” Bay Area Laundry & Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of Calif., 522 U.S. 192,
201 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98
(1941)). “Unless Congress has told us otherwise in the
legislation at issue, a cause of action does not become
‘complete and present’ for limitations purposes until the
plaintiff can file suit and obtain relief.” Id. A claim must
ripen to be “complete and present” and begin accruing,
even if a taking might have begun at an earlier date for
the purposes of measuring compensation. See Williamson
Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S.
172, 186 (1985); see also Asociación de Suscripción Con-
junta del Seguro de Responsabilidad Obligatorio v.
Juarbe-Jiménez, 659 F.3d 42, 51 (1st Cir. 2011) (collecting
cases “reasoning that because the constitutional injury is
not complete until the claim becomes ripe, the statute of
limitations cannot accrue before that point in time”);
Royal Manor, Ltd. v. United States, 69 Fed. Cl. 58, 61
(2005) (“[A] regulatory takings claim will not accrue until
the claim is ripe.”).
REOFORCE, INC. v. US 21
We agree with Reoforce that its claim did not ripen
until 2008. Even if the Government began interfering
with Reoforce’s property rights in 1995, the taking claim
did not ripen until Reoforce knew which claims it could
mine. As we have explained, “the general rule is that a
claim that Government regulation has taken the economic
viability of a property ‘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 property at issue.’” Stearns Co. v.
United States, 396 F.3d 1354, 1358 (Fed. Cir. 2005) (quot-
ing Williamson Cty., 473 U.S. at 186). Here, the adminis-
trative process to determine Reoforce’s property rights did
not conclude until the settlement ended BLM’s validity
determination in 2008. Reoforce needed this determina-
tion to demonstrate the existence of a legally cognizable
property interest as a necessary element of a takings
claim. See Hearts Bluff Game Ranch, Inc. v. United
States, 669 F.3d 1326, 1329 (Fed. Cir. 2012). Without
that determination, the parties’ dispute would be an
“abstract disagreement[]” and not ripe for this court to
resolve. See Nat’l Park Hospitality Ass’n v. Dep’t of Interi-
or, 538 U.S. 803, 807–08 (2003). To determine otherwise
“could potentially deprive [property owners] of the ability
to file a takings claim at all.” Ladd v. United States,
630 F.3d 1015, 1024 (Fed. Cir. 2010). Thus, we conclude
that the statute began to run for Reoforce’s claims when
they became ripe in 2008, so the statute of limitations
does not bar Reoforce’s 2011 suit.
III.
We now reach the merits of Reoforce’s claim. Reoforce
appeals the Claims Court’s judgment that Reoforce had
not suffered a taking compensable under the Fifth
Amendment.
22 REOFORCE, INC. v. US
A.
“Whether a compensable taking has occurred is a
question of law based on factual underpinnings.” Rose
Acre Farms, Inc. v. United States, 559 F.3d 1260, 1266
(Fed. Cir. 2009) (quoting Maritrans Inc. v. United States,
342 F.3d 1344, 1350–51 (Fed. Cir. 2003)). We review the
Claims Court’s legal conclusions de novo and its factual
findings for clear error. Id. “A finding is ‘clearly errone-
ous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948).
The Fifth Amendment provides that “private property
[shall not] be taken for public use, without just compensa-
tion.” U.S. Const. amend. V, cl. 4. In a takings analysis,
a court must determine “whether the plaintiff possesses a
valid interest in the property affected by the Governmen-
tal action, i.e., whether the plaintiff possessed a ‘stick in
the bundle of property rights,’” and, if so, “whether the
governmental action at issue constituted a taking of that
‘stick.’” Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366,
1374 (Fed. Cir. 2000). Reoforce alleges that the Govern-
ment effected a temporary taking of its property through
regulation, i.e. the MOU. Because we ultimately conclude
that Reoforce did not establish that the Government took
its property rights in a manner compensable under the
Fifth Amendment, we do not reach the question of wheth-
er Reoforce possessed a valid property right.
B.
Reoforce argues that the Government interfered with
its property right in a manner that constituted a taking of
that right. We conclude that Reoforce’s claim fails on two
separate grounds. First, Reoforce fails to show that the
court erred in determining that the MOU did not in fact
prevent Reoforce from mining on its claims. Second,
REOFORCE, INC. v. US 23
Reoforce does not successfully challenge the court’s de-
termination that, even if the MOU prevented Reoforce
from mining, Reoforce did not prove that this temporary
prohibition on mining constituted a taking under Penn
Central.
1.
We first turn to whether the Government’s MOU with
California deprived Reoforce of its property rights. The
Claims Court held that it did not. Claims Court Op., 118
Fed. Cl. at 666. Both parties agree that this is a factual
finding that we review for clear error. Appellant Br. 33
(calling the court’s finding “clearly erroneous”); Appellee
Br. 46 (agreeing with clearly erroneous standard). To find
clear error, our court must be “left with the definite and
firm conviction that a mistake has been committed.” U.S.
Gypsum, 333 U.S. at 395. Here, we discern no error in
the court’s finding that the MOU did not oblige Reoforce
to cease its mining activities. Claims Court Op., 118 Fed.
Cl. at 666.
As discussed above, BLM sent the MOU to every min-
ing claimant in the Red Rocks area affected by the Cali-
fornia Desert Protection Act. J.A. 1000. The MOU
identified three categories of affected mines, but only two
that matter for this case: Groups Two and Three.
J.A. 1001. Group Two was for “[e]xisting [Plans of Opera-
tions] for exploration activities” while Group Three was
for “operating mines under existing [Plans of Opera-
tions].” Id. The MOU required parties in Group Two to
suspended their activities while those in Group Three
could continue mining on an interim basis. Id.
The Claims Court found that “the evidence belies
Plaintiffs’ contention that Reoforce was prohibited from
mining by the MOU as of August 7, 1995.” Claims Court
Op., 118 Fed. Cl. at 666. The court found that “[t]here are
several dispositive pieces of evidence substantiating that
the August 7, 1995 MOU did not affect or suspend Plain-
24 REOFORCE, INC. v. US
tiffs’ May 28, 1987 approved [Plan of Operations].” Id.
And the Court explained that BLM informed Reoforce just
before sending the MOU that “[f]or operations such as
yours, you will be allowed to continue in accordance with
your approved mining [Plan of Operations] while the
validity exam process is completed for your claims.” Id.
(alteration in original) (quoting J.A. 993).
The court also found that Reoforce continued to at-
tempt to mine the site even after receiving the MOU. Id.
at 666. In 1998, the Foggan Group sought to file a new
plan of operations. J.A. 1026. It did not move forward
with that plan, however, because the Bureau informed it
that mining could not begin until it completed a validity
determination. J.A. 1044. The Foggan group needed this
determination, BLM explained, because the Foggan
Group had filed a new plan of operations. See J.A. 1026.
Existing plans under Group Three could continue opera-
tions.
Meeting minutes of Reoforce’s Board further suggest
that it perceived its mining operations as allowable under
the MOU. In 1995, a group of shareholders discussed
plans “to extract approximately 200 more tons of product
sometime in late March or April [1996],” but the plan was
“[t]abled until existence of first [customer] order.”
J.A. 1017. And in later meeting minutes, there was no
mention of a suspension of mining activities. J.A. 1015
(March 2, 1996 minutes); J.A. 1016 (April 2, 1996
minutes); J.A. 1018–19 (January 4, 1997 minutes); 1024
(January 29, 1998 minutes); J.A. 1049 (September 16,
2002 minutes). Instead, the meeting minutes reflected
the Board’s belief that BLM “is satisfied with the mining
plan and has allowed mining to begin at any time.”
J.A. 1024.
This view is further supported by Reoforce’s acts con-
cerning its SMARA application. In 1995, BLM sent
Reoforce a letter to remind it to comply with California’s
REOFORCE, INC. v. US 25
Surface Mining and Reclamation Act. J.A. 1005. While
this letter referred to the August 1995 MOU, it did not
suggest that BLM had suspended Reoforce’s mining
operations. Id. Rather, the letter noted that Reoforce
must fulfill SMARA requirements before it could mine.
And Reoforce did not mine until it met its SMARA re-
quirements. In fact, Mr. Simonson sent a letter to BLM
stating that he intended to start mining his claims shortly
after Reoforce met those requirements. J.A. 1047. In that
letter, Mr. Simonson thanked the Bureau for its “patience
over the years” and for “understanding the difficulty of a
one-man project.” J.A. 1047. And then, a few years later
in 2003, Mr. Simonson requested a validity determination
because he was “ready to commence [his] approved min-
ing operation.” J.A. 1091.
The court summed up the evidence this way: “[A]fter
the August 7, 1995 MOU, [Reoforce] entered into a joint
venture; obtained a diesel permit for operation; drilled
exploratory holes on the claims; continued to market
‘Reoforce pumicite’; and filed an application to comply
with SMARA.” Claims Court Op., 118 Fed. Cl. at 666.
The court thus held that “the evidence belies Plaintiffs’
contention that Reoforce was prohibited from mining by
the MOU as of August 7, 1995.” Id.
Reoforce disagrees, asserting that it rightly believed
that its mining activities fell into Group Two and that the
Claims Court’s conclusion to the contrary is clearly erro-
neous. Reoforce directs us to BLM’s official 2006 Mineral
Report regarding the Reoforce claims, which stated that
“Reoforce’s activity falls within Group Two.” J.A. 1119.
And it points to testimony from a local BLM official, Lin
Gum, who stated that, “essentially [Reoforce] was treated
as if [it] was in Category 2.” J.A. 1361. Reoforce also
presents a series of BLM emails indicating that its mine
was in Group Two. One stated that “Mr. Simonson is well
aware that we cannot and will not permit him to conduct
any further work at these claims until the Validity Exam
26 REOFORCE, INC. v. US
is completed.” J.A. 1406. Reoforce offers several of these
emails, each showing that some of BLM’s agents under-
stood Reoforce’s operations as falling in Group Two.
Appellant Br. 35–36 (collecting emails). But, as the
Government correctly points out, these letters all signifi-
cantly post-date the MOU; they were each sent in either
2006 or 2014. Appellee Br. 48. Reoforce thus presents no
evidence of contemporaneous communications by BLM
concerning whether Reoforce was in Group Two or Three.
So while Reoforce may present evidence that conflicts
with the Claims Court’s ultimate factual finding, this
evidence does not leave us “with the definite and firm
conviction that a mistake has been committed.” U.S.
Gypsum, 333 U.S. at 395. We thus discern no clear error
in the court’s finding that the MOU did not prevent
Reoforce from mining on its claims.
Finally, Reoforce asserts that the court violated
Rule 52(a) of the Rules of the Court of Federal Claims
because it did not specifically address some of the evi-
dence supporting Reoforce’s claims. Rule 52(a) requires
the court to “find the facts specially and state its conclu-
sions of law separately.” Ct. Fed. Cl. R. 52(a); see also
Fed. R. Civ. P. 52. But “Rule 52(a) does not require
elaborate, detailed findings on every factual issue raised.”
Atl. Thermoplastics Co., v. Faytex Corp., 5 F.3d 1477,
1479 (Fed. Cir. 1993). Here, the Claims Court held a six-
day trial with more than 700 documentary exhibits, and
its decision devotes 25 pages to factual findings. See J.A.
8–33. While the Claims Court did not elaborate on every
exhibit and testimonial statement, Rule 52 does not
require as much—the court need not “articulate every
imaginable permutation and combination.” Medtronic,
Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986). We
thus conclude that the court’s opinion satisfied Rule 52.
Because we leave undisturbed the Claims Court’s
finding that BLM’s MOU did not prevent Reoforce from
mining, Reoforce cannot establish that the Government
REOFORCE, INC. v. US 27
took its property. Of course, a Government action does
not effect a taking if it does not, in fact, deprive the prop-
erty owner of a “stick in the bundle of property rights.”
See Karuk Tribe, 209 F.3d at 1374. Because Reoforce
failed to prove such a deprivation of its rights, its taking
claim fails.
2.
We next turn to the Claims Court’s determination
that, even assuming the MOU interfered with Reoforce’s
property rights, Reoforce has not established that the
Government’s action constituted a compensable taking
under Penn Central.
Governmental interference with property rights con-
stitutes a taking if it “goes too far.” Pa. Coal Co. v. Ma-
hon, 260 U.S. 393, 412–15 (1922). The “Fifth
Amendment’s guarantee . . . [is] designed to bar Govern-
ment from forcing some people alone to bear public bur-
dens which, in all fairness and justice, should be borne by
the public as a whole.” Armstrong v. United States, 364
U.S. 40, 49 (1960). The Supreme Court has recognized
that there is no “‘set formula’ for determining when
‘justice and fairness’ require that economic injuries
caused by public action be compensated by the govern-
ment, rather than remain disproportionately concentrated
on a few persons.” Penn Central, 438 U.S. at 124 (citing
Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962)). The
common touchstone of regulatory takings precedent is “to
identify regulatory actions that are functionally equiva-
lent to the classic taking in which government directly
appropriates private property or ousts the owner from his
domain.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539
(2005).
Deprivation of a property right, even if temporary,
may merit just compensation under the takings clause.
“[O]nce a court finds that a police power regulation has
effected a ‘taking,’ the government entity must pay just
28 REOFORCE, INC. v. US
compensation for the period commencing on the date the
regulation first effected the ‘taking,’ and ending on the
date the government entity chooses to rescind or other-
wise amend the regulation.” Tahoe-Sierra Pres. Council,
Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 328
(2002) (quoting San Diego Gas & Elec. Co. v. City of San
Diego, 450 U.S. 621, 658 (1981)). This “reflect[s] the fact
that ‘temporary’ takings which . . . deny a landowner all
use of his property, are not different in kind from perma-
nent takings, for which the Constitution clearly requires
compensation.” First English Evangelical Lutheran
Church of Glendale v. Cty. of L.A., 482 U.S. 304, 318
(1987).
But temporary interference with a property right may
not amount to a taking. The Supreme Court has ex-
plained that “a permanent deprivation of the owner’s use
of the entire area is a taking of ‘the parcel as a whole,’
whereas a temporary restriction that merely causes a
diminution in value is not.” Tahoe-Sierra, 535 U.S. at
332. “Logically, a fee simple estate cannot be rendered
valueless by a temporary prohibition on economic use,
because the property will recover value as soon as the
prohibition is lifted.” Id. But “the answer to the abstract
question whether a temporary moratorium effects a
taking is neither ‘yes, always’ nor ‘no, never’; the answer
depends upon the particular circumstances of the case.”
Id. at 321. Those circumstances, the Court has explained,
must be tested under the Penn Central framework. Id. at
342. 2
2 Reoforce does not contend that the Government’s
acts constituted a categorical taking under Lucas v. S.C.
Coastal, 505 U.S. 1003 (1992), so we limit our analysis to
the regulatory taking framework announced in Penn
Central.
REOFORCE, INC. v. US 29
Penn Central articulated three factors of particular
significance in the regulatory-takings inquiry: (i) the
“economic impact of the regulation on the claimant,” (ii)
the “extent to which the regulation has interfered with
distinct investment-backed expectations,” and (iii) “the
character of the governmental action.” 438 U.S. at 124;
see also Lost Tree Vill. Corp. v. United States, 787 F.3d
1111, 1115 (Fed. Cir. 2015). But as the Supreme Court
has repeatedly cautioned, the Penn Central inquiry “is
characterized by an ‘essentially ad hoc, factual inquir[y]’
designed to allow ‘careful examination and weighing of all
the relevant circumstances.’” Tahoe-Sierra, 535 U.S. at
322 (quoting Penn Cent., 438 U.S. at 124, and Palazzo v.
Rhode Island, 533 U.S. 606, 636 (2001) (O’Connor, J.,
concurring)).
a.
We agree with the Claims Court that the MOU had
minimal economic impact on Reoforce. To determine the
economic impact of the alleged taking, we must determine
whether the Government’s action “merely causes a dimi-
nution in value” on the theory that “[l]ogically, [Reoforce’s
property rights] cannot be rendered valueless by a tempo-
rary prohibition on economic use, because the property
will recover value as soon as the prohibition is lifted.”
Tahoe-Sierra, 535 U.S. at 332.
The Claims Court found that, “[a]t best, Plaintiffs
were several years away from commercial-scale mining on
August 7, 1995.” Claims Court Op., 118 Fed. Cl. at 667.
Reoforce does not dispute this finding. Reply Br. 28.
Reoforce in fact admits that it was at least four to eight
years from commercial production in 1995. Id. And
before 1995, Reoforce had sold only five tons of pumicite
to one company for testing. J.A. 970–71. We find that
these facts provide sufficient evidentiary support for the
Claims Court’s conclusion that Reoforce “incurred no
economic harm.” Claims Court Op., 118 Fed. Cl. at 667.
30 REOFORCE, INC. v. US
Reoforce responds that the court’s conclusion is clear-
ly erroneous because it incurred harm from the duration
of the Government’s action. It contends that Reoforce
“missed the opportunity for selling pumicite” because of
the Government’s thirteen-year delay between issuing the
MOU and finalizing its validity determination. Reoforce
presented this argument through expert testimony to the
Claims Court. J.A. 234–36, 1412. But the court found
this evidence unconvincing. It determined that, to the
contrary, even if there was a government-imposed mora-
torium, it had no economic impact on Reoforce. Claims
Court Op., 118 Fed. Cl. at 667. As explained above, the
court’s conclusion is supported by abundant evidence that
Reoforce was unprepared to take advantage of such a
market, even if it existed. Id. Moreover, the court further
concluded that the market for pumicite was “highly
speculative.” Id. As the court noted, despite Reoforce
sending its pumicite to many different testers and possi-
ble investors, very few parties reciprocated interest. Id.
Moreover, prior to the MOU in 1995, Reoforce had only
made two minor sales in the twelve years since first
locating a pumicite claim. Id.
In light of these findings, the court did not clearly err
in finding that the MOU did not impact Reoforce economi-
cally. We thus agree that the economic-impact prong
weighs heavily against Reoforce. See Tahoe-Sierra, 535
U.S. at 332.
b.
We likewise agree with the Claims Court that Re-
oforce “failed to establish that the August 7, 1995 MOU
interfered with reasonable ‘investment-based expecta-
tions.’” Claims Court Op., 118 Fed. Cl. at 667. We have
articulated three considerations “‘relevant to the determi-
nation of a party’s reasonable expectations’: (1) whether
the plaintiff operated in a ‘highly regulated industry;’ (2)
whether the plaintiff was aware of the problem that
REOFORCE, INC. v. US 31
spawned the regulation at the time it purchased the
allegedly taken property; and (3) whether the plaintiff
could have ‘reasonably anticipated’ the possibility of such
regulation in light of the ‘regulatory environment’ at the
time of purchase.” Appolo Fuels, Inc. v. United States,
381 F.3d 1338, 1349 (Fed. Cir. 2004) (quoting Common-
wealth Edison Co. v. United States, 271 F.3d 1327, 1348
(Fed. Cir. 2001) (en banc)).
We agree with the Claims Court that the first factor
weighs against Reoforce, as even Reoforce admits it
operates in a highly regulated industry. Reply Br. 26.
But Reoforce contends this fact is not dispositive. We
agree. A property owner does not automatically relin-
quish her Fifth Amendment rights by entering a highly
regulated industry. See Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 990 (1984) (finding regulatory taking in an
industry “regulated . . . for nearly 75 years”). Neverthe-
less, in the context-dependent Penn Central inquiry, this
factor weighs against Reoforce.
The second and third factors also do not favor Re-
oforce. Here, the Government action, i.e., the MOU,
actually existed at the time of Reoforce’s purchase, so no
question exists as to whether Reoforce “could have rea-
sonably anticipated” its passage. Appolo Fuels, 381 F.3d
at 1349 (internal quotation marks omitted). In January
1997, Simonson and Stehn transferred their interests in
all mining claims to Reoforce. J.A. 108. Reoforce was
thus aware of the alleged Government action, i.e., the
MOU, before it acquired the mining claims. J.A. 109. Of
course, “[a] blanket rule that purchasers with notice have
no compensation right when a claim becomes ripe is too
blunt an instrument to accord with the duty to compen-
sate for what is taken.” Palazzolo, 533 U.S. at 628. But
while Reoforce’s “knowledge of the regulation is not per se
dispositive, . . . it is a factor that may be considered,
depending on the circumstances.” Schooner Harbor
Ventures, Inc. v. United States, 569 F.3d 1359, 1366
32 REOFORCE, INC. v. US
(Fed. Cir. 2009). Here, the circumstances again weigh
against Reoforce’s claim that the taking unfairly bur-
dened its reasonable investment-backed expectations.
c.
Finally, we consider the character of BLM’s action.
Here we must consider “the actual burden imposed on
property rights, or how that burden is allocated.” Lingle,
544 U.S. at 543; Rose Acre Farms, 559 F.3d at 1278. In
considering this burden, “[w]e can no longer ask whether
the means chosen by government advance the ends or
whether the regulation chosen is effective in curing the
alleged ill.” Rose Acre Farms, 559 F.3d at 1278. Instead,
we must consider “the magnitude or character of the
burden a particular regulation imposes upon private
property rights” and its distribution among property
owners. Lingle, 544 U.S. at 542; Rose Acre Farms, 559
F.3d at 1278. For example, in Rose Acre Farms, we found
regulations that did not “single out” or “target[]” the
plaintiff and “broadly applied” to similarly situated prop-
erty owners did not impose a heavy burden on the plain-
tiffs. Rose Acre Farms, 559 F.3d at 1278. So too here.
As the Claims Court noted, there was no evidence
that the MOU “target[ed]” Reoforce. Claims Court Op.,
118 Fed. Cl. at 668. While the MOU’s restrictions were
“issued on a less-than-nationwide basis,” it nevertheless
applied to all mining claimants within the proposed
addition to Red Rock Canyon State Park. Id. Even so,
Reoforce rightly responds that Lingle requires considera-
tion of the magnitude or character of the burden. Lingle,
544 U.S. at 542. But even this consideration does not
weigh heavily in Reoforce’s favor. Even assuming that
Reoforce bore the burden of ceasing its mining activities,
that burden was minimal due to its inability to economi-
cally exploit Reoforce pumicite. See supra Discussion,
Section III.B.2.a. Thus, we conclude that the character of
the MOU does not heavily weigh for or against Reoforce.
REOFORCE, INC. v. US 33
d.
Finally, we must balance the Penn Central factors to
“ascertain whether, in light of those factors, it is unfair to
force the property owner to bear the cost of the regulatory
action.” Rose Acre Farms, 559 F.3d at 1282. As discussed
above, the economic-impact and reasonable-investment-
backed-expectations factors weigh heavily against Re-
oforce. The character of the Government’s action does
not, however, weigh so heavily against Reoforce’s taking
claim. Even so, the Supreme Court has explained that
“the Penn Central inquiry turns in large part, albeit not
exclusively, upon the magnitude of a regulation’s econom-
ic impact and the degree to which it interferes with legit-
imate property interests.” Lingle, 544 U.S. at 540. After
weighing the Penn Central factors, we hold that, even
assuming the MOU prevented Reoforce from mining,
Reoforce has not established that it suffered a compensa-
ble taking of its property rights.
CONCLUSION
For the foregoing reasons, we reverse the Claims
Court’s determination that it lacked jurisdiction to hear
Reoforce’s claims, but affirm its holding that Reoforce did
not suffer a compensable taking under the Fifth Amend-
ment.
AFFIRMED-IN-PART, REVERSED-IN-PART
COSTS
No costs.