WALTER B. FREEMAN, RNR RESOURCES, LLC, MICHELLE L. HARRIS, SANDRA LEE FINCHER, JAMES R. OMUNDSON, Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee
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.
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.
Prost, Chief Judge, Wallach and Stoll, Circuit Judges.
Wallach, Circuit Judge.
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).
which is solely owned by Mr. Freeman,  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. 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.
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.
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.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,  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).
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.
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 ...