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Freeman v. United States

United States Court of Appeals, Federal Circuit

November 3, 2017

UNITED STATES, Defendant-Appellee

         Appeal from the United States Court of Federal Claims in No. 1:01-cv-00039-NBF, Senior Judge Nancy B. Firestone.

          Richard Merritt Stephens, Stephens & Klinge LLP, Bellevue, WA, argued for plaintiffs-appellants.

          Avi Kupfer, Appellate Section, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Jeffrey H. Wood.

          Before Prost, Chief Judge, Wallach and Stoll, Circuit Judges.

          Wallach, Circuit Judge.

         Appellants Walter B. Freeman, RNR Resources, LLC ("RNR"), Michelle L. Harris, Sandra Lee Fincher, and James R. Omundson (collectively, "Appellants") sued Appellee the United States ("the Government"), alleging, inter alia, a regulatory taking of RNR's mining claims by the Government. The U.S. Court of Federal Claims granted the Government's motion to dismiss Appellants' regulatory taking claim for lack of subject matter jurisdiction because the claim was not ripe. Freeman v. United States (Freeman I), 124 Fed.Cl. 1, 2 (2015); see Freeman v. United States (Freeman II), No. 01-39L, 2016 WL 943859, at *1 (Fed. Cl. Mar. 1, 2016) (denying reconsideration). Appellants appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012). We affirm.


         RNR, which is solely owned by Mr. Freeman, [1] located eight mining claims on public lands of the Rogue River Siskiyou National Forest. See J.A. 41-42. In 2011, RNR filed a plan of operations ("the Plan") with the U.S. Forest Service ("Forest Service") "to authorize commercial mining of the[se] new mining claims" as required by regulation.[2] J.A. 42; see J.A. 245. The Plan describes a project to mine ore that "contains commercially recoverable amounts of nickel, chromium[, ] and iron" from two deposits over the course of thirty years. J.A. 269; see J.A. 251. In order to haul the mined and screened ore to a processing site, RNR proposed construction of nearly eight miles of new roads, excavation of a pit for water storage, and construction of two crossings over a creek. J.A. 270- 71. RNR also proposed the creation of a processing facility "on an approximately [twenty] acre site, " J.A. 271; see J.A. 264 (map with location of facility), which was to be located on lands managed by the U.S. Department of the Interior's Bureau of Land Management ("BLM"), J.A. 105.

         After receiving the Plan, District Ranger Roy Bergstrom directed Area Mining Geologist Kevin Johnson to review the Plan. J.A. 103-04, 154. During two separate telephone conversations that occurred soon after RNR filed the Plan, Mr. Freeman discussed with Messrs. Bergstrom and Johnson the potential of "conducting a bulk sample of minerals on his mining claims" to collect "10-15 tons of material." J.A. 104; see J.A. 155, 342. During these discussions, Messrs. Bergstrom and Johnson eventually advised Mr. Freeman to submit a written proposal of the bulk sampling to include in the Plan. J.A. 104, 155. Mr. Johnson also informed Mr. Freeman that the Forest Service needed additional time to provide a formal response to the Plan given its complexity. J.A. 291.

         In March 2012, Mr. Johnson sent a memorandum to Mr. Bergstrom with his assessment of the Plan. See J.A. 291-93. Mr. Johnson understood that Mr. Freeman planned to build a full-production "processing facility" that would include, inter alia, "a rotary kiln, " "three . . . ore storage buildings, " a "furnace/metal processing building, " and "a supply storage building." J.A. 291. Mr. Johnson, however, noted that the BLM office "had not received a plan of operation from Mr. Freeman for the construction of [this full-production] processing facility, " despite the Plan's proposal to construct the processing facility on BLM-managed lands.[3]J.A. 292; see J.A. 242 (explaining that Mr. Johnson checked with the BLM every one to two months about the status of Mr. Freeman's BLM plan of operations). Mr. Johnson also indicated that the Plan did not include a "discussion of the operator owning or obtaining a water right for the operating facility." J.A. 292. He explained that RNR would need to construct a pilot-prototype plant, [4] which he identified as "a standard practice in the mining industry." J.A. 292. According to Mr. Johnson, a pilot-prototype plant would allow Mr. Freeman to determine economic feasibility, evaluate treatment and disposal of waste, and identify the best potential product to be processed. J.A. 292-93. Therefore, Mr. Johnson concluded:

[The Plan] is not reasonable and does not represent the next logical or sequential step in the development of this deposit in a mine of this size and scope. I recommend that the [Plan] be returned to Mr. Freeman with the suggestion that he submit a proposal for bulk sampling and construction of a pilot-prototype plant that can process the bulk sample so that it can be determined if production scaled mining and smelting is feasible.

J.A. 293 (emphasis added).

         In July 2012, Mr. Bergstrom sent Mr. Freeman a letter containing the Forest Service's written response to the Plan and attached Mr. Johnson's memorandum. J.A. 294-95. Mr. Bergstrom specifically explained that the Plan "will not be processed until [Mr. Freeman] provide[s] additional information and changes to the [P]lan as outlined in Mr. Johnson's memorandum." J.A. 294 (emphases added). The letter highlighted the lack of a pilot-prototype plant and Mr. Freeman's failure to submit a companion plan to the BLM for construction of a full-production processing facility. J.A. 294. Mr. Bergstrom requested Mr. Freeman "reconsider [his] proposal, " "submit a new plan . . . with more detail, " and provide "confirmation that [he] ha[s] submitted a plan to the BLM." J.A. 295.

         During a meeting in September 2012 to discuss "next steps" in light of the July 2012 letter, Messrs. Bergstrom and Johnson reiterated the need for a pilot-prototype plant. J.A. 249; see J.A. 337. Although Mr. Freeman asked Messrs. Bergstrom and Johnson to tell him "how large a sample [for] the pilot[-prototype] plant" was needed, they responded "that it was not up to [the Forest Service] to determine . . . the amount of material, but it was [Mr. Freeman's] responsibility [to] show that it was feasible to ramp up the process to a production capacity." J.A. 249. According to Mr. Freeman's characterization of the meeting, Mr. Bergstrom "confirm[ed] that ...

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