TRINCO INVESTMENT COMPANY, AND KATHLEEN G. ROSE, trustee of the V&M Rose - Marital Trust, Plaintiffs-Appellants,
UNITED STATES, Defendant-Appellee.
Appeal from the United States Court of Federal Claims in No. 11-CV-0857, Judge Bohdan A. Futey.
Matthew J. Dowd, Wiley Rein, LLP, of Washington, DC argued for plaintiffs-appellants. Of counsel on the brief was Wesley Higbie, Higbie Law Office, of San Mateo, California.
Nina C. Robertson, Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief was Ignacia S. Moreno, Assistant Attorney General.
Before Rader, Chief Judge, and Moore, Circuit Judge, and Benson, District Judge. [*]
Benson, District Judge.
TrinCo Investment Company and Kathleen G. Rose (collectively "TrinCo") appeal the decision of the United States Court of Federal Claims ("CFC") granting the Government's Motion To Dismiss. The CFC found that TrinCo failed to plead facts sufficient to support a takings claim against the Government following the destruction of 1, 782 acres of TrinCo's merchantable timber as a result of a United States Forest Service fire management effort.
Because we find that TrinCo pled sufficient facts to state a claim for relief that is plausible on its face, we reverse and remand.
Appellants collectively own five pieces of real property in California. Appellant TrinCo Investment Company, a California limited partnership, owns four pieces of property: the Squaw Camp Property, the Price Creek Property, the Mud Springs Property, and the Eltapom Rose Property. These properties consist of 714, 524.3, 529.5 and 604.8 timbered acres respectively, all of which are surrounded by the Shasta-Trinity National Forest. Appellant Kathleen G. Rose is a trustee of the V&M Rose Trust-Marital Trust. The Rose Trust owns the V&M Bottoms Property which consists of 57 timbered acres which are adjacent to the Shasta-Trinity National Forest.
The Shasta-Trinity National Forest is the largest national forest in California, encompassing approximately 2.1 million acres. See U.S. Dep't of Agriculture, Forest Service, Shasta-Trinity National Forest: About the Forest, at http://www.fs.usda.gov/main/stnf/about-forest. In June, 2008, a series of wildfires burned within the Shas-ta-Trinity National Forest. The United States Forest Service ("Forest Service") named these fires the "Iron Complex" fire. In response to the Iron Complex fire, the Forest Service intentionally lit fires directly on and adjacent to TrinCo's properties in order to reduce unburned timber which might fuel the Iron Complex fire. These intentional fires caused damage to TrinCo's properties, burning 714 acres of Squaw Camp, 92 acres of Eltapom Rose, 395.1 acres of Mud Springs, 524.3 acres of Price Creek, and 57 acres of V&M Bottoms in July and August of 2008.
TrinCo's complaint alleges that the Iron Complex fire would not have burned any of its land. However, the Forest Service's intentional fires destroyed 1, 782 acres of TrinCo's merchantable timber valued at approximately $6.6 million. TrinCo asserts that the damages caused by the Forest Service's conduct constitute a taking for which it should be compensated under the Fifth Amendment to the Constitution of the United States.
The Government moved to dismiss the case before the CFC under Rule 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC") for failure to state a claim upon which relief can be granted. The Government asserts that the intentional lighting of fires by the Forest Service to manage existing wildfires cannot sustain a plausible takings case because the doctrine of necessity absolves the Government from liability for any taking or destruction of property in efforts to fight fires. The CFC granted the motion to dismiss. TrinCo now appeals that decision.
Our jurisdiction arises under 28 U.S.C. § 1295(a)(3). Because we are reviewing a dismissal under RCFC 12(b)(6) "the court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the claimant's favor." Lindsay ...