Petro-Hunt, L.L.C. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
PETRO-HUNT, L.L.C.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1981, 2016-1983
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:00-cv-00512-MBH, 1:11-cv-00775-MBH,
Judge Marian Blank Horn.
______________________
Decided: July 17, 2017
______________________
JOSEPH RALPH WHITE, White Andrews, LLC, Oxford,
MS, argued for plaintiff-appellant. Also represented by
SHARON ANDREWS, BRUCE ALAN BAKER, JR., White, An-
drews & Shackelford, LLC, New Orleans, LA; EDMUND
MICHAEL AMOROSI, Smith, Pachter, McWhorter, PLC,
Tysons Corner, VA; D. JOE SMITH, Jenner & Block LLP,
Washington, DC.
KATHERINE J. BARTON, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Repre-
sented by JOHN CRUDEN, BRIAN C. TOTH.
2 PETRO-HUNT, L.L.C. v. UNITED STATES
______________________
Before PROST, Chief Judge, CLEVENGER, and REYNA,
Circuit Judges.
CLEVENGER, Circuit Judge.
Petro-Hunt, L.L.C. appeals the decision of the United
States Court of Federal Claims to dismiss its claims for
permanent takings, temporary takings, judicial takings,
and breach of contract by the United States (“United
States” or “the Government”). The Court of Federal
Claims dismissed Petro-Hunt’s permanent takings claims,
contract claims, and some temporary takings claims
under the statute of limitations. Petro-Hunt, L.L.C. v.
United States, 90 Fed. Cl. 51 (2009) (“Petro-Hunt I”). The
Court of Federal Claims subsequently held that the
remaining temporary takings claims were barred by 28
U.S.C. § 1500. Petro-Hunt, L.L.C. v. United States, 105
Fed. Cl. 37 (2012) (“Petro-Hunt II”). And, because Petro-
Hunt’s judicial takings claim would require the Court of
Federal Claims to question the merits of the Fifth Cir-
cuit’s decision regarding the same servitudes asserted in
the instant case, the Court of Federal Claims held it also
lacked jurisdiction over those claims. Petro-Hunt, L.L.C.
v. United States, 126 Fed. Cl. 367 (2016) (“Petro-Hunt
III”). Because we agree with the Court of Federal Claims’
reasons for its dismissal of Petro-Hunt’s claims, we af-
firm.
I
The facts of this case are generally undisputed and
are set forth in the Court of Federal Claims’ multiple
decisions. See Petro-Hunt I, 90 Fed. Cl. at 53–57. We
recite here the facts pertinent to the issues before us.
A
Petro-Hunt’s claims relate to ninety-six mineral servi-
tudes underlying roughly 180,000 acres of the Kisatchie
PETRO-HUNT, L.L.C. v. UNITED STATES 3
National Forest in Louisiana (“Kisatchie”). Under Louisi-
ana law, the right to enter land and extract minerals can
be held separately from ownership of the land in the form
of a mineral servitude. Petro-Hunt I, 90 Fed. Cl. at 53.
Such servitudes generally prescribe (i.e., revert back to
the landowner) if not used for a period of ten years. Id.
This ten-year rule of prescription cannot be modified by
contract. Id.
Between 1932 and 1934, the original owners of the
relevant servitudes, Bodcaw Lumber Company and Grant
Timber Company, transferred six mineral conveyances,
resulting in ninety-six servitudes, to Good Pine Oil. Each
of these six deeds conveying mineral rights to Good Pine
Oil contained a clause contemplating that a ten-year
prescriptive period would apply. From 1934 to 1937,
Bodcaw and Grant conveyed, through eleven written
instruments, 180,000 acres of land, burdened by ninety-
six mineral servitudes in favor of Good Pine Oil, to the
United States. All but one of the eleven transfer instru-
ments explicitly stated that the conveyances were subject
to one or more of the mineral deeds granting rights to
Good Pine Oil.
In 1940, the Louisiana legislature enacted Act 315 of
1940, 1940 La. Acts 1250 (“Act 315”). 1 Act 315 created an
exception to Louisiana’s law of prescription and retroac-
1 Act 315 reads in full: “[W]hen land is acquired by
conventional deed or contract, condemnation or expropria-
tion proceedings by the United States of America . . . , and
by the act of acquisition, verdict or judgment, oil, gas,
and/or other minerals or royalties are reserved, or the
land so acquired is by the act of acquisition conveyed
subject to a prior sale or reservation of oil, gas and/or
other minerals or royalties, still in force and effect, said
rights so reserved or previously sold shall be impre-
scriptible.”
4 PETRO-HUNT, L.L.C. v. UNITED STATES
tively confirmed that all outstanding, but not yet pre-
scribed mineral rights reserved in land sold to the United
States, were now imprescriptible, so long as the United
States remained the landowner.
In 1941, Good Pine Oil transferred its mineral rights
to William C. Brown. One year later, Brown transferred
his mineral rights to Nebo Oil Company. Based on Act
315, Nebo Oil believed it had acquired imprescriptible
mineral servitudes.
In 1948, the United States filed a declaratory judg-
ment against Nebo Oil, claiming that Nebo’s mineral
rights to an 800 acre tract of land had prescribed to the
Government due to non-use. The district court ruled that
Act 315 was retroactive and thus Nebo Oil owned the
mineral property in perpetuity. United States v. Nebo Oil
Co., 90 F. Supp. 73, 89 (W.D. La. 1950). On appeal, the
Fifth Circuit agreed, holding that Nebo Oil’s mineral
rights to that specific tract were imprescriptible. United
States v. Nebo Oil Co., 190 F.2d 1003, 1010 (5th Cir. 1951)
(“Nebo Oil”).
In 1973, the Supreme Court decided United States v.
Little Lake Misere Land Co., 412 U.S. 580 (1973). The
Court held that Act 315 could not be applied retroactively
to outstanding mineral interests in land acquired by the
United States under the Migratory Bird Conservation
Act, 45 Stat. 1222, 16 U.S.C. §§ 715–715s. Id. at 595. It
reasoned that retroactive application of Act 315 would
deprive the United States of “bargained-for contractual
interests” by abrogating the terms of the acquisition
instruments relating to prescription and thus was “plainly
hostile to the interests of the United States.” Id. at 597.
Notably, the Court did not overrule Nebo Oil and distin-
guished its facts. Id. at 586.
In the 1980s, relying on the Court’s decision in Little
Lake Misere, the Government, through the Bureau of
Land Management (“BLM”), began to issue mineral leases
PETRO-HUNT, L.L.C. v. UNITED STATES 5
on Petro-Hunt’s mineral property. While the parties
disagree as to the exact timing of these leases (and even
as to the number thereof), it appears that the majority of
them were granted beginning in 1991, with more than
forty-five leases made from that year up to the beginning
of this lawsuit. Each lease was for a period of ten years.
In the 1990s, owners of the mineral servitudes disput-
ed the Government’s issuance of leases on their mineral
property. In response, in 1991, the Forest Service in-
formed BLM, in a letter on which Hunt Petroleum (a co-
owner of the relevant servitudes) was copied, that all but
two of the mineral servitudes had prescribed and were
now owned by the United States. The letter cited a 1986
U.S. Department of Agriculture legal opinion indicating
that the United States had ownership of the servitudes on
all parcels acquired before the enactment of Act 315 and
on which no wells had been drilled. In 1993, BLM re-
sponded to another protest by Hunt Petroleum in a letter
to Hunt and Placid Oil, its co-owner at the relevant time,
by citing a title report indicating that the servitudes had
prescribed to the United States. In 1998, Petro-Hunt
acquired Placid Oil’s 64.3% undivided interest in the
servitudes and thus owns the mineral servitudes at issue
in this case as a successor in interest. 2
In 1996, Central Pines Land Company and other
holders of mineral servitudes brought an action against
the government and lessees under mineral leases granted
by the government, seeking declaratory relief and to quiet
title in the servitudes. Central Pines Land Co. v. United
States, No. 2:96-cv-02000 (W.D. La. filed Aug. 22, 1996).
Like those at issue in this case and in Nebo Oil, the
2 The other co-owners of the mineral servitudes are
Kingfisher Resources, Inc., which owns an 18.9% undivid-
ed interest, and Hunt Petroleum Corporation, which owns
a 16.8% undivided interest.
6 PETRO-HUNT, L.L.C. v. UNITED STATES
mineral servitudes in Central Pines were on property
acquired by the United States for Kisatchie prior to Act
315’s enactment. On appeal, the Fifth Circuit held that
Act 315 could not provide the federal rule of decision
because, as in Little Lake Misere, it was hostile to the
United States’ interests in “obtaining the mineral rights
via the default rule of prescription in place before Act
315.” Central Pines Land Co. v. United States, 274 F.3d
881, 891 (5th Cir. 2001). Instead, the court held that the
ten-year prescriptive period of residual (pre-Act 315)
Louisiana law should govern the case and thereby con-
cluded that the servitudes on Kisatchie lands had pre-
scribed for non-use. Id. at 892, 894. The Supreme Court
denied Central Pines’s petition for a writ of certiorari.
Central Pines Land Co. v. United States, 537 U.S. 822(2002). While summary judgment motions were pending
in the district court, Central Pines had filed a complaint
in the Court of Federal Claims, alleging a taking in viola-
tion of the Fifth Amendment based on the same facts
alleged in its district court complaint. Central Pines Land
Co. v. United States, 99 Fed. Cl. 394 (2011). This court
affirmed the Court of Federal Claims’ dismissal of Central
Pines’s taking claims for lack of jurisdiction pursuant to
28 U.S.C. § 1500. Central Pines Land Co. v. United
States, 697 F.3d 1360, 1367 (Fed. Cir. 2012).
B
On February 18, 2000, Petro-Hunt and others not
party to the current action filed suit against the Govern-
ment in the United States District Court for the Western
District of Louisiana. Complaint, Petro-Hunt, L.L.C. v.
United States, 179 F. Supp. 2d 669 (W.D. La. 2001) (No.
00-cv-0303), ECF No. 1 (the “Quiet Title Action”). Petro-
Hunt alleged it was the owner of all aforementioned
ninety-six mineral servitudes under the theory that Act
315 and the Nebo Oil decision had rendered them impre-
scriptible. It further alleged that starting in 1991, the
United States, claiming ownership over the mineral
PETRO-HUNT, L.L.C. v. UNITED STATES 7
rights, wrongfully granted a series of oil and gas leases
covering the property in interest. Based on these factual
allegations, Petro-Hunt filed for a declaratory judgment
under 28 U.S.C. § 2409a to quiet title to the property. In
the alternative, it alleged an unconstitutional taking
without just compensation in violation of the Fifth
Amendment.
In 2001, the district court granted summary judg-
ment in Petro-Hunt’s favor and ruled that Nebo Oil
precluded the United States from litigating title to the
ninety-six mineral servitudes, which the court held Petro-
Hunt owned in perpetuity. Petro-Hunt, L.L.C. v. United
States, 179 F. Supp. 2d 669 (W.D. La. 2001). However, in
2004, the Fifth Circuit reversed the district court, holding
that res judicata applied only to the mineral rights in the
800-acre parcel described in Nebo Oil. Petro-Hunt, L.L.C.
v. United States, 365 F.3d 385, 396–97 (5th Cir. 2004). It
found that Petro-Hunt’s remaining mineral property was
subject to the contractual provisions permitting prescrip-
tion after ten years of non-use. Id. at 398–99. The Fifth
Circuit remanded the case to the district court for it to
determine whether any of the servitudes had prescribed.
The Supreme Court denied Petro-Hunt’s petition for writ
of certiorari. Petro-Hunt, L.L.C. v. United States, 543
U.S. 1034 (2004).
In 2005, the parties stipulated that five servitudes,
representing approximately 109,844 acres, still existed
due to use, but that the remainder had prescribed. So the
district court issued a judgment that Petro-Hunt was the
owner of those five servitudes, now subject to the law of
prescription, and 800 acres of the 1120 acre Nebo Oil
servitude, which remained imprescriptible. Quiet Title
Action, ECF No. 228. It additionally found that ninety
servitudes and the remaining 320 acres of the Nebo Oil
servitude had prescribed to the United States. Id. at 2–3.
In 2007, the Fifth Circuit affirmed the district court’s
order. Petro-Hunt, L.L.C. v. United States, No. 06-30095,
8 PETRO-HUNT, L.L.C. v. UNITED STATES
2007 WL 715270 (5th Cir. Mar. 6, 2007) (per curiam).
Petro-Hunt’s petition for writ of certiorari was denied.
Petro-Hunt, L.L.C. v. United States, 552 U.S. 1242 (2008).
On August 24, 2000, while summary judgment mo-
tions were pending in district court, Petro-Hunt filed a
complaint in the Court of Federal Claims, alleging a
taking without just compensation in violation of the Fifth
Amendment. Complaint, Petro-Hunt, L.L.C. v. United
States, 90 Fed. Cl. 51 (2009) (No. 00-cv-512), ECF No. 1
(the “2000 Case”). Similar to its district court complaint,
Petro-Hunt alleged that, pursuant to Act 315 and Nebo
Oil, it owned in perpetuity the same ninety-six mineral
servitudes at issue in the Quiet Title Action. Petro-Hunt
noted its pending case in the district court and explained
that it filed its taking claims in the Court of Federal
Claims as a result of the Government’s allegation in its
answer that the district court lacked jurisdiction over
Petro-Hunt’s takings claims. In November 2000, the
Court of Federal Claims granted the parties’ joint motion
to stay the case pending the resolution of the Quiet Title
Action in the district court. 2000 Case, ECF No. 6.
On June 25, 2008, after the Quiet Title Action con-
cluded and the stay was lifted, Petro-Hunt filed its first
amended complaint in the Court of Federal Claims,
adding alternative claims for breach of contract and
reformation. 2000 Case, ECF No. 51. The amended
complaint divided the takings claims in the original
complaint into permanent and temporary takings claims,
and added four contract-based claims founded on the
transfer instruments by which the Government obtained
the lands subject to the servitudes from Bodcaw and
Grant. In September 2008, the United States moved to
dismiss all of Petro-Hunt’s claims for lack of jurisdiction
for failure to state a claim.
In November 2009, the Court of Federal Claims
granted in part and denied in part the Government’s
PETRO-HUNT, L.L.C. v. UNITED STATES 9
motion. It held that Petro-Hunt’s permanent takings
claim and contract-based claims accrued, subject to the
accrual suspension rule, no later than 1993, based on
letters to the mineral servitude owners regarding the
Government’s claims of mineral ownership of specific
parcels in the Kisatchie. Petro-Hunt I, 90 Fed. Cl. at 63–
64, 67–68. The Court of Federal Claims therefore dis-
missed these claims as untimely under 28 U.S.C. § 2501.
Id. The Court of Federal Claims further held that the
temporary takings claims accrued when the United States
entered into mineral leases on the servitudes with third
parties, not when the leases terminated. Id. at 65–67. So
the Court of Federal Claims dismissed as time-barred
Petro-Hunt’s temporary takings claims founded on the
Government’s mineral leases that were issued more than
six years before Petro-Hunt filed suit on August 24, 2000.
Id. Regarding the leases entered into less than six years
prior to Petro-Hunt’s filing suit, the Court of Federal
Claims stated that discovery was needed to determine
whether each relevant servitude prescribed by the time
the leases were issued. Id. at 69. The Court of Federal
Claims denied Petro-Hunt’s motion for reconsideration.
In 2010, Petro-Hunt filed a restated second amended
complaint, adding a judicial takings claim founded on the
result of the Quiet Title Action in the Fifth Circuit. 2000
Case, ECF No. 95. Petro-Hunt said its new complaint
was prompted by the Supreme Court’s decision regarding
judicial takings in Stop the Beach Renourishment, Inc. v.
Florida Department of Environmental Protection, 560 U.S.
702 (2010). In May 2011, based on the Supreme Court’s
decision in United States v. Tohono O’odham Nation, 563
U.S. 307 (2011), the Government filed a motion to dismiss
Petro-Hunt’s remaining claims under 28 U.S.C. § 1500,
arguing that those claims were pending at the district
court when Petro-Hunt filed its complaint at the Court of
Federal Claims and, therefore, the Court of Federal
Claims lacked jurisdiction.
10 PETRO-HUNT, L.L.C. v. UNITED STATES
On November 11, 2011, Petro-Hunt filed a new suit
in the Court of Federal Claims, reasserting the claims
from the 2000 Case. Complaint, Petro-Hunt, L.L.C. v.
United States, 105 Fed Cl. 37 (2012) (No. 11-cv-775), ECF
No. 1 (the “2011 Case”). Soon thereafter, the Court of
Federal Claims issued an order staying the 2011 Case.
Later, in July 2015, the Court of Federal Claims consoli-
dated Petro-Hunt’s two actions. 2000 Case, ECF No. 210.
On May 2, 2012, the Court of Federal Claims granted
the Government’s motion to dismiss with regard to Petro-
Hunt’s remaining temporary takings claims under § 1500,
finding that they were “essentially the same takings
claims” that were pending in Petro-Hunt’s district court
action when it filed the Court of Federal Claims action.
Petro-Hunt II, 105 Fed. Cl. at 43. The Court of Federal
Claims concluded that Petro-Hunt’s alternative compen-
sation request in its district court complaint was pending
when Petro-Hunt filed its temporary takings claims in the
Court of Federal Claims and that the two suits were
based on the same operative facts. Id. at 44. The court
denied the Government’s motion to dismiss with respect
to the judicial takings claim, reasoning that it rested on
the independent operative facts of the Fifth Circuit’s 2007
decision and the Supreme Court’s denial of certiorari in
2008. Id. at 45. The Court of Federal Claims denied
Petro-Hunt’s motion for reconsideration.
In January 2015, after discovery was completed, the
United States moved to dismiss Petro-Hunt’s sole remain-
ing claim: the judicial takings claim. 2000 Case, ECF No.
198.
On February 29, 2016, the Court of Federal Claims
entered a final judgment, disposing of all of Petro-Hunt’s
claims. Petro-Hunt III, 126 Fed. Cl. at 385. It ruled that
it could not determine whether the Fifth Circuit took
Petro-Hunt’s mineral property without “scrutinizing” the
merits of the Fifth Circuit’s decision, and thus it lacked
PETRO-HUNT, L.L.C. v. UNITED STATES 11
jurisdiction to consider Petro-Hunt’s judicial takings
claim. Id. at 380 (citing Shinnecock Indian Nation v.
United States, 782 F.3d 1345, 1352 (Fed. Cir. 2015)
(“Binding precedent establishes that the Court of Federal
Claims has no jurisdiction to review the merits of a deci-
sion rendered by a federal district court.”)). The court
reasoned that determining whether or not Petro-Hunt
had an established property right at the relevant time
would require the Court of Federal Claims to decide
whether the Fifth Circuit was correct in finding that Little
Lake Misere and Central Pines established that lands sold
to the United States before the enactment of Act 315 were
subject to Louisiana’s ten-year prescription rule. Id. at
383–84. The court further noted that Petro-Hunt’s own
filings characterized the Fifth Circuit’s decision as incor-
rect, further supporting its conclusion that adjudicating
the judicial takings claim would require an improper
exercise in collateral review. Id. at 384–85. The Court of
Federal Claims also dismissed the 2011 Case because
Petro-Hunt conceded that a ruling against it on the
judicial takings claim, combined with the Court of Federal
Claims’ prior rulings, should result in dismissal of both
actions. Id. at 385 n.14. The Court of Federal Claims
thus entered final judgment in both actions for the United
States
Petro-Hunt timely appealed and asks this court to re-
verse the Court of Federal Claims’ dismissal of its perma-
nent, temporary, and judicial takings claims, breach of
contract claims, and claims for reformation, and remand
for the Court of Federal Claims to adjudicate the merits of
its claims. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
II
We review de novo a decision of the Court of Federal
Claims to dismiss for lack of subject matter jurisdiction.
12 PETRO-HUNT, L.L.C. v. UNITED STATES
Fidelity & Guar. Ins. Underwriters, Inc. v. United States,
805 F.3d 1082, 1087 (Fed. Cir. 2015).
A
We affirm the Court of Federal Claims’ dismissal of
Petro-Hunt’s permanent takings claim and contract-based
claims as untimely. A six-year statute of limitations
governs claims before the Court of Federal Claims. 28
U.S.C. § 2501 (2004). A claim under the Fifth Amend-
ment accrues when the taking action occurs. Alliance of
Descendants of Tex. Land Grants v. United States, 37 F.3d
1478, 1481 (Fed. Cir. 1994) (citing Steel Improvement &
Forge Co. v. United States, 355 F.2d 627, 631 (Ct. Cl.
1966)). Generally, such a taking occurs when the gov-
ernment deprives an owner of the use of his or her proper-
ty. See United States v. Causby, 328 U.S. 256, 261–62
(1946). A permanent takings claim arises when (1) all the
events which fix the government’s liability have occurred;
and (2) the plaintiff knew or should have known about the
existence of these events. See Japanese War Notes
Claimants Ass’n v. United States, 373 F.2d 356, 358–59
(Ct. Cl.), cert. denied, 389 U.S. 971 (1967). Because the
statute of limitations is jurisdictional, the plaintiff bears
the burden of proof. Alder Terrace, Inc. v. United States,
161 F.3d 1372, 1377 (Fed. Cir. 1998).
We agree with the Court of Federal Claims that Pet-
ro-Hunt’s permanent takings claim accrued, at the latest,
in 1993. The statute of limitations for Petro-Hunt’s
permanent takings claim began to run in the 1940s when
the servitudes at issue prescribed and the property inter-
ests were acquired by the United States. However, Petro-
Hunt may be entitled to the benefit of the accrual suspen-
sion rule. Under the accrual suspension rule, the accrual
of a claim is suspended under 28 U.S.C. § 2501 “until the
claimant knew or should have known that the claim
existed.” Martinez v. United States, 333 F.3d 1295, 1319
(Fed. Cir. 2003) (en banc). We agree with the Court of
PETRO-HUNT, L.L.C. v. UNITED STATES 13
Federal Claims that the accrual suspension rule applied
to some extent due to the enactment of Act 315 and the
Nebo Oil decision. But even application of the accrual
suspension rule in this case does not save Petro-Hunt’s
permanent takings claim from being barred by the statute
of limitations. The accrual suspension period ended no
later than 1993 in this case, because that was when
Petro-Hunt’s predecessor in interest, Placid Oil, and its
co-owner, Hunt Petroleum, explicitly learned that the
United States was granting mineral leases on the servi-
tudes and had deemed the servitudes to have prescribed
to the Government. Because Petro-Hunt did not file its
complaint until 2000, the six-year statute of limitations
expired, and the Court of Federal Claims was correct to
dismiss these claims as outside of its jurisdiction. Addi-
tionally, because Petro-Hunt’s contract-based claims arose
out of the same transactions as its permanent takings
claim, the Court of Federal Claims properly applied the
same reasoning to accrual of those claims and properly
dismissed them.
We reject Petro-Hunt’s argument that accrual of its
permanent takings claim should have been suspended
until resolution of the Quiet Title Action. Petro-Hunt
relies on this court’s decision in Samish Indian Nation v.
United States, 419 F.3d 1355 (Fed. Cir. 2005), for the
proposition that it had to complete its Quiet Title Action
in the district court before it could pursue its permanent
takings claim in the Court of Federal Claims. Petro-Hunt
contends that the Fifth Circuit’s determination of the
ownership of the servitudes was an “essential element” of
its case in the Court of Federal Claims and therefore that
case was not ripe for adjudication until the Fifth Circuit
ruled that the relevant servitudes were subject to pre-
scription. We disagree with Petro-Hunt that Samish
compels us to decide that accrual of Petro-Hunt’s claims
was suspended until March 6, 2007, the date the Fifth
Circuit affirmed the district court’s judgment regarding
14 PETRO-HUNT, L.L.C. v. UNITED STATES
ownership of the servitudes. In Samish, the plaintiffs’
action in the Court of Federal Claims depended on their
status as an Indian tribe. Only a district court, acting on
a challenge under the APA, had authority to review the
status of the Indian tribe. Id. at 1373. Because plaintiffs’
claim for retroactive benefits at the Court of Federal
Claims depended on recognition of the Samish tribe, the
claim did not accrue until the decision of the district
court. Id. at 1373–74.
Conversely, in the case of a takings claim, the Court
of Federal Claims has jurisdiction to determine the exist-
ence of property rights as a threshold inquiry in any
takings case. See Boise Cascade Corp. v. United States,
296 F.3d 1339, 1343 (Fed. Cir. 2002), cert. denied, 538
U.S. 906 (2003) (stating that there is a two-step approach
to takings claims, where the first step is for a court to
determine “whether the plaintiff possesses a valid interest
in the property affected by the governmental action, i.e.,
whether the plaintiff possessed a ‘stick in the bundle of
property rights’” (quoting Karuk Tribe of Cal. v. Ammon,
209 F.3d 1366, 1374 (Fed. Cir. 2000))); Resource Invs., Inc.
v. United States, 85 Fed. Cl. 447, 478 (2009) (“Before
assessing plaintiffs’ categorical takings claim, this court
must, as a threshold matter, determine whether plaintiffs
possessed a property interest protected by the Fifth
Amendment.”). Therefore, the Court of Federal Claims
could have and would have addressed the threshold
inquiry of whether Petro-Hunt had a property right in the
servitudes. Accordingly, because Petro-Hunt’s takings
claims in the Court of Federal Claims did not depend on
the result of the Quiet Title Action in the district court,
the result of the Quiet Title Action was not an “essential
element” of its case in the Court of Federal Claims. Petro-
Hunt was not required to wait until the Quiet Title Action
in the district court was decided to file its case in the
Court of Federal Claims.
PETRO-HUNT, L.L.C. v. UNITED STATES 15
B
Because we hold that Petro-Hunt’s temporary takings
claims accrued at the time the leases were entered into,
we affirm the Court of Federal Claims’ dismissal of all
temporary takings claims based on leases entered into six
years prior to Petro-Hunt’s filing in the Court of Federal
Claims. 3
That Petro-Hunt’s temporary takings claims accrued
at the start of the leases when the Government entered
into possession of the land is consistent with the prece-
dent of both the Supreme Court and this court. The
Supreme Court in United States v. Dow, stated that, in
general, a taking occurs when the United States enters
into physical possession of the land at issue. 357 U.S. 17,
21–22 (1958). “It is that event which gives rise to the
claim for compensation and fixes the date as of which the
land is to be valued and the Government’s obligation to
pay interest accrues.” Id. at 22. In Caldwell v. United
States, 391 F.3d 1226 (Fed. Cir. 2004), this court endorsed
the rule that, no matter whether the physical taking is
permanent or temporary, the “taking occurs when the
owner is deprived of use of the property. . . . While the
taking may be abandoned . . . the accrual date of a single
taking remains fixed.” Id. at 1235. Here, too, we adopt
3 Regarding the 2000 Case, our holding applies to
all leases entered into six or more years prior to August
24, 2000. Thus, sixty-eight of the leases asserted in the
2000 Case are barred. As discussed in Part II.C, the
remainder of the leases asserted in the 2000 complaint
are barred by § 1500. Regarding the 2011 Case, this
holding applies to all leases entered into six or more years
prior to November 17, 2011. Because all asserted leases
in the 2011 Case were entered into prior to that date, our
holding regarding Petro-Hunt’s temporary takings claims
affects all leases asserted in the 2011 Case.
16 PETRO-HUNT, L.L.C. v. UNITED STATES
the rule that a taking, permanent or temporary, occurs
when the owner is deprived of use of the property, in this
case, by physical possession. The temporary takings
accrued when Petro-Hunt was deprived of use of the
property at the beginning of each lease. Therefore, we
conclude that all temporary claims based on leases that
were entered into more than six years before Petro-Hunt
filed suit on August 24, 2000, are barred by the statute of
limitations.
Petro-Hunt argues that its temporary takings claims
did not accrue until the end of each lease because tempo-
rary physical takings are analogous to, and therefore
should be treated the same as, regulatory takings. In
other words, Petro-Hunt asserts that the accrual rule
should be the same for temporary physical takings as it is
for regulatory takings. Generally, a party who has suf-
fered a regulatory taking is allowed to wait to file suit
until the process that began the taking has ceased.
Compensation for a regulatory taking often cannot be
measured until the government’s act has completed
because the economic impact and extent of the harm
cannot be measured until the process that began it has
ended. See Creppel v. United States, 41 F.3d 627, 632
(Fed. Cir. 1994) (stating that where there is a temporary
regulatory taking, “property owners cannot sue for a
temporary taking until the regulatory process that began
it has ended . . . because they would not know the extent
of their damages until the Government completes the
‘temporary’ taking”). Petro-Hunt alleges that the circum-
stances are the same for temporary physical takings; that
is, the property owner will not know the extent of the
damage until the temporary taking has ceased. For this
reason, Petro-Hunt contends that it had the option to file
its claim once the taking began or wait and determine the
extent of the taking and the amount of just compensation
owed before filing suit.
PETRO-HUNT, L.L.C. v. UNITED STATES 17
We disagree with Petro-Hunt that temporary physical
takings are analogous to regulatory takings and therefore
decline to adopt the rule Petro-Hunt proposes. Where
regulatory takings rely heavily on the degree of diminu-
tion of the value of the property over time, the effect of a
physical taking on a property owner can be measured as
soon as the Government enters into possession of the
physical property. Dow, 357 U.S. at 24. In explaining
why a physical taking occurs at the time the Government
enters into possession of the land, the Supreme Court
stated that just compensation is a “reflection of the value
of what the property owner gave up and the Government
acquired” at the time the Government took possession,
and that measurement at a later date may not accurately
reflect the value of what was lost. Id. We think this
reasoning is sound as applied to the leases here. While it
is possible that the value of a servitude at the end of the
ten-year lease period would be greater than at the begin-
ning, it is also possible that the servitude would be
deemed worthless at the lease’s end. Indeed, as the
Supreme Court stated:
[I]f the difference between the market value of the
fee on the date of the taking and that on the date
of return were taken to be the measure, there
might frequently be situations in which the owner
would receive no compensation . . . because the
market value of the property had not decreased
during the period of the taker's occupancy.
Kimball Laundry Co. v. United States, 338 U.S. 1, 7
(1949); see also Dow, 357 U.S. at 24 (“[I]f the value of the
property changed between the time the Government took
possession and the time of filing, payment as of the latter
date would not be an accurate reflection of the value of
what the property owner gave up and the Government
acquired.”).
18 PETRO-HUNT, L.L.C. v. UNITED STATES
Because just compensation can be determined at the
time the leases were entered into, we hold that a tempo-
rary physical taking accrues at the time the Government
takes physical possession of the land. Thus, all leases
entered into at least six years prior to the date the com-
plaint was filed are barred by the statute of limitations.
C
We also affirm the Court of Federal Claim’s finding
that the remaining temporary takings claims asserted in
the 2000 Case not barred by the statute of limitations are
barred by 28 U.S.C. § 1500. Jurisdiction under § 1500 is
“dependent on the state of things when the action is
brought, and cannot be rescued by subsequent action of
either party or by resolution of the co-pending litigation.”
Central Pines, 697 F.3d at 1367. Section 1500 provides:
The United States Court of Federal Claims shall
not have jurisdiction of any claim for or in respect
to which the plaintiff or his assignee has pending
in any other court any suit or process against the
United States or any person who, at the time
when the cause of action alleged in such suit or
process arose, was, in respect thereto, acting or
professing to act, directly or indirectly under the
authority of the United States.
In other words, § 1500 bars the Court of Federal
Claims’ jurisdiction over a suit if a plaintiff, upon filing in
the Court of Federal Claims, has a suit pending in any
other court “for or in respect to” the same claim. Keene
Corp. v. United States, 508 U.S. 200, 209 (1993). To
determine whether § 1500 applies, a court must make two
inquiries: “(1) whether there is an earlier-filed ‘suit or
process’ pending in another court, and, if so, (2) whether
the claims asserted in the earlier-filed case are ‘for or in
respect to’ the same claim(s) asserted in the later-filed
Court of Federal Claims action.” Resource Invs., Inc. v.
United States, 785 F.3d 660, 664 (Fed. Cir. 2015) (quoting
PETRO-HUNT, L.L.C. v. UNITED STATES 19
Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir.
2013)). ‘‘Two suits are for or in respect to the same claim,
precluding jurisdiction in the [Court of Federal Claims], if
they are based on substantially the same operative facts,
regardless of the relief sought in each suit,’’ Tohono, 563
U.S. at 317, or the legal theories asserted, Keene, 508 U.S.
at 212.
To determine whether the § 1500 bar attached when
plaintiffs filed their action in the Court of Federal Claims,
we compare the operative facts underlying the claims
pending in the two courts. See Central Pines, 697 F.3d at
1364. 4 A review of the complaints filed by Petro-Hunt at
the district court and at the Court of Federal Claims
reveals that the factual allegations are nearly identical.
4 This case presents similar facts to Central Pines,
where this court affirmed the Court of Federal Claims’
dismissal of plaintiffs’ takings claims as barred by § 1500.
697 F.3d at 1367. In Central Pines, plaintiffs alleged that
the government improperly asserted ownership over
mineral rights in property in Kisatchie that Central Pines
claimed to own. Id. at 1362. Plaintiffs first filed suit in
the district court, requesting a declaratory judgment to
quiet title to the property and alternatively alleging an
unconstitutional taking without just compensation in
violation of the Fifth Amendment. Id. While summary
judgment motions were pending in the district court,
plaintiffs filed suit in the Court of Federal Claims, alleg-
ing a taking in violation of the Fifth Amendment. Id. at
1362–63. This court found that the Court of Federal
Claims properly dismissed plaintiffs’ claims as barred
under § 1500 because the two suits were based on sub-
stantially the same operative facts. Id. at 1364–65.
Those facts include the mineral servitudes at issue, the
history of conveyances, the description of the govern-
ment’s behavior, and the claims of ownership. Id.
20 PETRO-HUNT, L.L.C. v. UNITED STATES
Compare Quiet Title Action, ECF No. 1, with 2000 Case,
ECF No. 1. Both complaints describe the same mineral
servitudes, the same history of conveyances of the land to
the Government in the 1930s, the same history of convey-
ances of the mineral rights to Petro-Hunt and its prede-
cessors from the 1940s to the 1990s, and the same
allegedly wrongful use of the land by the Government.
Both complaints allege that the Government had granted
leases to the mineral servitudes as early as 1991, despite
protests by Petro-Hunt’s co-owners and predecessors. We
disagree with Petro-Hunt that these are mere background
facts and conclude that they are critical to its claims in
both actions. In fact, both complaints allege these facts as
support for a takings claim. Because we find that Petro-
Hunt’s district court complaint and Court of Federal
Claims complaint allege nearly identical operative facts,
we affirm the Court of Federal Claims’ invocation of the
§ 1500 bar. See, e.g., Tohono, 563 U.S. at 317–18 (finding
two suits had substantial overlap of operative facts where
plaintiff could have filed two nearly identical complaints
without changing the claim in either suit in any signifi-
cant way); Central Pines, 697 F.3d at 1365 (“Because
plaintiffs filed two nearly identical complaints that, at
best, repackaged the same conduct into two different
theories, and at worst, alleged the same takings claim, we
find that there is a substantial overlap of operative facts
that implicates the § 1500 bar.”).
Petro-Hunt makes several arguments on appeal as to
why the § 1500 bar should not apply, and we reject each
in turn.
Petro-Hunt disagrees that its temporary takings
claims in the Court of Federal Claims were based on
substantially the same operative facts as the claims in the
Quiet Title Action and thus argues that § 1500’s jurisdic-
tional bar was not triggered. According to Petro-Hunt,
the only similarities between these two suits are the
background facts that provide context for the claims
PETRO-HUNT, L.L.C. v. UNITED STATES 21
presented. Petro-Hunt says that the Court of Federal
Claims improperly conflated operative facts with back-
ground facts and contends that the facts relevant to the
claims in its Quiet Title Action are unrelated to the
conduct that gave rise to the takings. We reject this
argument because the operative facts are nearly identical
in each complaint, as discussed above.
Petro-Hunt states that its alternative request for just
compensation in the Quiet Title Action was not a ‘claim’
for purposes of § 1500. Citing Rule 8(a) of the Federal
Rules of Civil Procedure, Petro-Hunt argues that its
alternative request was not a ‘claim’ because Petro-Hunt
did not cite the district court’s jurisdiction over that claim
and did not assert that it was bringing a cause of action
for a taking. As noted by the Government, this argument
is waived because Petro-Hunt did not present this argu-
ment at the Court of Federal Claims. See Mass. Mut. Life
Ins. Co. v. United States, 782 F.3d 1354, 1369 (Fed. Cir.
2015) (“As a general principle, appellate courts do not
consider issues that were not clearly raised in the pro-
ceeding below.”). In any case, Petro-Hunt’s complaint at
the district court did state a takings claim: “Plaintiffs
allege that the actions of the United States in confiscating
their mineral interests amounts to an unconstitutional
taking in direct violation of the Fifth Amendment of the
United States Constitution, for which Plaintiffs should be
compensated.” Quiet Title Action, ECF No. 1 at ¶ 19. It
is irrelevant to the § 1500 analysis that Petro-Hunt failed
to cite a jurisdictional basis for this claim or that this
claim was set forth under the “Relief Requested” heading
rather than the “Cause of Action” heading. All that is
required for two suits to be “for or in respect to the same
claim” is that they be “based on substantially the same
operative facts, regardless of the relief sought in each
suit.” Tohono, 563 U.S. at 317. As discussed above, we
find that the 2000 Case and the Quiet Title Action are
22 PETRO-HUNT, L.L.C. v. UNITED STATES
based on substantially the same—in fact, nearly identi-
cal—operative facts.
Petro-Hunt argues that its alternative request for
compensation in the Quiet Title Action was not ‘pending’
as required by § 1500, reasoning that the request was
never litigated, argued, decided, or appealed. Moreover,
Petro-Hunt argues that § 1500 should not bar a claim
where the potential for duplicative litigation is not possi-
ble. Petro-Hunt asserts that duplicative litigation would
not have been possible because the Court of Federal
Claims has exclusive jurisdiction over takings claims for
more than $10,000, and thus, the district court would not
have been able to assert jurisdiction over its takings
claims. We disagree with Petro-Hunt’s reasoning and
agree with the Government that Petro-Hunt’s claim was
pending for purposes of § 1500. Even though the claim
was not “litigated, argued, decided, or appealed,” as Petro-
Hunt argues was required, it was pending because it had
not been dismissed and was in front of the district court
when Petro-Hunt filed its Court of Federal Claims com-
plaint. See Central Pines, 697 F.3d at 1364 (explaining
that the § 1500 bar attaches at the time the complaint is
filed in the Court of Federal Claims). Additionally,
whether or not the district court would have been able to
exercise its jurisdiction over Petro-Hunt’s takings claims
is irrelevant. First, because district courts do have juris-
diction over takings claims for just compensation of
$10,000 or less (under the Little Tucker Act) and because
Petro-Hunt’s complaint in its Quiet Title Action did not
specify an amount, the district court did have jurisdiction
over the takings claim on its face. See, e.g., Smith v. Orr,
855 F.2d 1544, 1552–53 (Fed. Cir. 1988) (stating that a
Little Tucker Act case may proceed in district court if
recovery is limited to $10,000, even when potential liabil-
ity exceeds $10,000). Even so, whether or not the court
where the claim is pending has jurisdiction is irrelevant.
See Keene, 508 U.S. at 204 (applying § 1500 jurisdictional
PETRO-HUNT, L.L.C. v. UNITED STATES 23
bar to a case filed in the Court of Federal Claims where
substantially the same claims were pending at a district
court when the Court of Federal Claims case was filed,
even though the district court ultimately dismissed those
claims for lack of jurisdiction); see also UNR Indus., Inc. v.
United States, 962 F.2d 1013, 1021 (Fed. Cir. 1992) (en
banc), aff'd sub nom. Keene, 508 U.S. 200 (“There is
nothing in section 1500 to suggest a free floating jurisdic-
tional bar that attaches only when the government files a
motion to dismiss, or worse, when the court gets around to
acting on it.”).
Petro-Hunt also challenges the constitutionality of the
§ 1500 jurisdictional bar. Petro-Hunt contends that
Congress is not allowed to dispense with the constitution-
al right to just compensation by withholding jurisdiction
through statute. Since Tohono was decided, Petro-Hunt
believes that § 1500 has been applied too broadly to cover
not only rights granted by statute but also constitutional-
ly created rights. In response, the Government finds
Petro-Hunt’s constitutional arguments to be “waived,
inapplicable, and incorrect.” Even if Petro-Hunt had
argued this constitutional issue at the Court of Federal
Claims, the Government contends it is without merit
because Petro-Hunt could have avoided the § 1500 bar by
not filing its takings claims in the district court or by
dismissing it and then refiling it with its Court of Federal
Claims complaint.
We find Petro-Hunt’s argument to be unpersuasive.
Section 1500 does not act as a general bar to constitution-
al rights, but instead was applied in this case because
Petro-Hunt filed essentially the same case twice, pleading
an unconstitutional taking in both district court and the
Court of Federal Claims. The Court of Claims in Tecon
Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl.
1965), cert. denied, 382 U.S. 976 (1966), set forth the rule
that § 1500 applies only when a suit is commenced in
another court against the United States before the claim
24 PETRO-HUNT, L.L.C. v. UNITED STATES
is filed in the Court of Claims. Id. at 949. 5 In Resource
Investments, this court applied the rule of Tecon and
avoided the possible constitutional questions underlying
application of § 1500 by stating that had the plaintiff filed
his claim in the Court of Federal Claims before filing in
the district court, the Court of Federal Claims could have
considered his claims. 785 F.3d at 669–70; see also id. (“In
[Tecon], our predecessor court found that the § 1500 bar
operates only when the suit shall have been commenced
in the other court before the claim was filed in [the Court
of Federal Claims]. . . . We are bound by Tecon, which
remains the law of this circuit.” (citations and internal
quotation marks omitted)). The same is true here. Petro-
Hunt could have avoided the force of § 1500 by following
Tecon and filing its case first in the Court of Federal
Claims. See Brandt v. United States, 710 F.3d 1369, 1379
n.7 (Fed. Cir. 2013) (stating that Tecon’s order-of-filing
rule “remains the law of this circuit”); Hardwick Bros. Co.
II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995) (the
rule of Tecon “remains good law and binding on this
court”). Thus, we find that application of § 1500 did not
affect Petro-Hunt’s right to assert its constitutional claim.
D
Finally, we affirm the Court of Federal Claims’ dis-
missal of Petro-Hunt’s judicial takings claim because the
Court of Federal Claims lacks jurisdiction to review the
merits of a decision rendered by a federal district court.
See Shinnecock, 782 F.3d at 1352 (“Binding precedent
establishes that the Court of Federal Claims has no
jurisdiction to review the merits of a decision rendered by
a federal district court.”); see also Boise, 296 F.3d at 1344(stating that “Article III forbids the Court of Federal
5 Tecon was overruled on other grounds by UNR
Industries, Inc. v. United States, 962 F.2d 1013 (Fed. Cir.
1992).
PETRO-HUNT, L.L.C. v. UNITED STATES 25
Claims, an Article I tribunal, from reviewing the actions
of an Article III court,” and that “the Court of Federal
Claims cannot entertain a takings claim that requires the
court to scrutinize the actions of another tribunal” (cita-
tions and internal quotation marks omitted)); Vereda,
Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir.
2001) (“[T]he Court of Federal Claims cannot entertain a
taking claim that requires the court to ‘scrutinize the
actions of’ another tribunal.” (quoting Allustiarte v. Unit-
ed States, 256 F.3d 1349, 1352 (Fed. Cir. 2001))).
Petro-Hunt’s judicial takings claim alleges that the
Fifth Circuit’s holding that Petro-Hunt’s mineral servi-
tudes are subject to prescription for nonuse was a taking
of its right to perpetual ownership of the servitudes.
Petro-Hunt’s claim to prior perpetual ownership is based
on the Fifth Circuit’s decision in Nebo Oil, which Petro-
Hunt argued to the Fifth Circuit and again to the Court of
Federal Claims should have applied to all of its mineral
servitudes in Kisatchie and not just the specific ones at
issue in Nebo Oil. In the Quiet Title Action, the Fifth
Circuit held that Nebo Oil did not have such preclusive
effect, and thus Petro-Hunt did not have perpetual own-
ership of any servitude except the one at issue in Nebo
Oil. Petro-Hunt, 365 F.3d at 397–99. Therefore, to re-
solve Petro-Hunt’s judicial takings claim, the Court of
Federal Claims would necessarily have to review the
Fifth’s Circuit decision to decide whether Petro-Hunt ever
had a cognizable property interest in perpetual ownership
of the servitudes. To determine whether Petro-Hunt held
imprescriptible mineral servitudes prior to the Fifth
Circuit’s ruling, the Court of Federal Claims must deter-
mine the res judicata or collateral estoppel effect of Nebo
Oil, which was decided against Petro-Hunt in the Fifth
Circuit’s decision in the Quiet Title Action and became a
final, nonappealable judgment in 2008. Thus, the Court
of Federal Claims correctly dismissed Petro-Hunt’s judi-
cial takings claim because it could not determine if Petro-
26 PETRO-HUNT, L.L.C. v. UNITED STATES
Hunt's mineral servitudes were “previously imprescripti-
ble” or “transformed” from private to public property
without determining whether the Fifth Circuit’s interpre-
tation of precedent was correct. Petro-Hunt III, 126 Fed.
Cl. at 385.
We disagree with Petro-Hunt that its case is compa-
rable to Boise, where this court held that the Court of
Federal Claims had jurisdiction to review the merits of
plaintiff’s Tucker Act claim after a district court had
enjoined plaintiffs from logging on property. 296 F.3d at1343–44. There, plaintiffs had accepted the validity of the
district court’s injunction and filed suit in the Court of
Federal Claims to determine whether the injunction
effected a taking of its property. Id. While Petro-Hunt
contends that it has accepted the result of the Quiet Title
Action and therefore the Court of Federal Claims need not
review the merits of the Fifth Circuit’s decision, its brief-
ings at the Court of Federal Claims and to this court show
that Petro-Hunt is actually challenging the result. In its
briefs on appeal, it requests that this court remand to the
Court of Federal Claims for it to “determin[e] whether
Petro-Hunt held a compensable property interest that
was taken and, if so, what compensation is due.” Appel-
lant’s Br. 54. Petro-Hunt also stated in its opposition to
the Government’s motion to dismiss at the Court of Fed-
eral Claims that “[t]he ultimate result of the [Quiet Title
Action] was inconsistent with the principles set forth in
[Nebo Oil] and the other relevant principles applicable to
Petro-Hunt’s established property right and deprived
Petro-Hunt of its ownership of the mineral servitudes in
perpetuity.” Petro-Hunt III, 126 Fed. Cl. at 384–85.
Therefore, Petro-Hunt’s case is more analogous to
Vereda and Allustiarte, where this court found the adjudi-
cation of a takings claim would require the Court of
Federal Claims to review the propriety of a district court’s
actions. See Vereda, 271 F.3d at 1375 (holding that the
Court of Federal Claims lacked jurisdiction over plaintiff’s
PETRO-HUNT, L.L.C. v. UNITED STATES 27
takings claim because review would require a determina-
tion of the correctness of an administrative forfeiture,
which has the same force and effect as a district court
judgment); Allustiarte, 256 F.3d at 1352 (Court of Federal
Claims lacked jurisdiction over a takings claim requiring
determination of whether a bankruptcy judgment was
correctly decided). Because the Fifth Circuit held that
Petro-Hunt had no property interest and therefore there
could be no taking, the Court of Federal Claims would
necessarily have to find that the Fifth Circuit erred for
Petro-Hunt to prevail. Thus, resolution of Petro-Hunt’s
judicial takings claim depends on the Court of Federal
Claims’ finding that the Fifth Circuit’s decision was in
error—something it has no jurisdiction to do.
This court’s recent response to a judicial takings claim
in Shinnecock confirmed that the Court of Federal Claims
“cannot entertain a taking[s] claim that requires the court
to scrutinize the actions of another tribunal.” 782 F.3d at
1353 (citing Innovair Aviation Ltd. v. United States, 632
F.3d 1336, 1344 (Fed. Cir. 2011)). This court reasoned
that “[p]ermitting parties aggrieved by the decisions of
Article III tribunals to challenge the merits of those
decisions in the Court of Federal Claims would circum-
vent the statutorily defined appellate process and severe-
ly undercut the orderly resolution of claims.” Id. The
court in Shinnecock did not address the general viability
of a judicial takings claim, and this court need not do so
here, either. 6 It is only necessary for us to decide that
6 In Smith v. United States, 709 F.3d 1114, 1116–17
(Fed. Cir. 2013), this court noted that “judicial action
could constitute a taking of property,” and that the Su-
preme Court applied the theory of a judicial taking in
Stop the Beach. But the Court’s decision in Stop the
Beach that a cause of action for a judicial taking exists is
a plurality decision, and therefore not a binding judg-
28 PETRO-HUNT, L.L.C. v. UNITED STATES
because Petro-Hunt’s judicial takings claim would require
the Court of Federal Claims to overturn the Fifth Circuit’s
decision, the Court of Federal Claims lacks jurisdiction
over that claim.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Court of Federal Claims to dismiss Petro-Hunt’s
permanent, temporary, and judicial takings claims for
lack of jurisdiction.
AFFIRMED
COSTS
No costs.
ment. Stop the Beach, 560 U.S. at 715–19 (Justice Scalia,
joined by Chief Justice Roberts and Justices Thomas and
Alito, concluded that a court may effect a taking. There
were two separate opinions concurring in the judgment
but not in the plurality’s views on judicial takings—one
by Justice Kennedy, joined by Justice Sotomayor, the
other by Justice Breyer, joined by Justice Ginsburg.
Justice Stevens did not participate.)