Fallini is a rancher who leases
grazing land from the federal government. The
government prohibits him from keeping wild horses from watering from sources
that Fallini has developed on public lands to water his cattle.
The Court of Federal Claims said that this requirement was not a taking
of Fallini’s private property for a public use without just compensation.
In this opinion, the appellate court holds that the lawsuit is barred by
the statute of limitations, that is, that Fallini waited too long to file this
In this Fifth Amendment "takings" case, the Fallinis, who are engaged in cattle ranching in Nevada, argue that the federal government has taken personal property from them without compensation. The Fallinis contend that the government effected a "taking" by requiring them to provide water to wild horses living in the area in which the Fallinis conducted their ranching activities. The Court of Federal Claims ruled against the Fallinis, concluding on motion for summary judgment that they had no property right that was taken by governmental action. Fallini v. United States, 31 Fed.Cl. 53 (1994). We conclude that their complaint was not filed within the applicable statute of limitations period and that the complaint should be dismissed on that ground.
The appellants, Susan and Joseph Fallini, own a
2700‑acre ranch in south‑ central Nevada.
The Fallinis' ranch property is located within a region known as the
Reveille Allotment, which consists of 657,520 acres of federally owned land.
Pursuant to federal permits, the Fallinis graze cattle on the public land
surrounding their ranch property.
The Fallini family has engaged in ranching in the area since
the 19th century. Over time,
they have developed a number of water sources on the public land to water the
cattle that are permitted to graze there.
Although the Fallinis do not own the land where the water sources are
located, they contend that under federal and state law they enjoy proprietary
rights in all the water they produce from the waterworks that they and their
predecessors have constructed.
In 1971, Congress enacted the Wild Free‑Roaming Horses
and Burros Act, 16 U.S.C. §§ 1331‑1340, which provided for the
management and protection of wild horses and burros on public lands.
The Act prohibited the removal, destruction, or harassment of wild horses
and burros found on public lands, and it authorized the Secretary of the
Interior to issue regulations providing for the management of the wild horses
In November 1992, the Fallinis filed a complaint in the Court
of Federal Claims, contending that the government had taken their property by
requiring them "to provide water to wild horses whenever plaintiffs
provided water to their domestic livestock after December 17, 1971 [the
effective date of the Wild Free‑Roaming Horses and Burros Act], on penalty
of loss of their grazing preference."
The Fallinis' complaint does not describe exactly what the government
required them to do in order to "provide water to the wild horses,"
but they elsewhere assert that they have been prohibited from fencing their
water sources in ways that would permit cattle access to the water but prevent
wild horses from having access. In
their complaint, the Fallinis alleged that between 1971 and 1991 the cost of
providing water to wild horses that took water from the Fallinis' developed
water sources totaled approximately $1 million.
The Court of Federal Claims granted summary judgment to the
government. The court first
held that the Fallinis do not own the water they produce in excess of the
amounts necessary to satisfy the cattle authorized under their federal grazing
permits. The court further
concluded that, because the government may regulate the use of the public lands
on which the Fallinis' cattle are allowed to graze, the Fallinis "did not
have a compensable expectancy in exclusion of wild horses and other wild animals
from the allotment or exclusive use of the forage and water."
Fallini v. United States, 31 Fed.Cl. at 58.
On appeal, the Fallinis contend that the court erred in
characterizing their interest in the water that they brought to the surface at
the developed water sources on the Reveille Allotment.
Based on their claim that they enjoy ownership rights in that water under
federal and state law, the Fallinis argue that the government took their
property without compensation when it prohibited them from barring the wild
horses from drinking water at those sites.
The government responds, first, that the Fallinis failed to
file their complaint within the applicable statute of limitations period and
that the complaint therefore should be dismissed.
On the merits, the government argues that the Court of Federal Claims was
correct in ruling that the government had the right to condition the Fallinis'
use of the public lands on their not barring the wild horses from having access
to the developed water sources.
We do not reach the merits of the Fallinis' claim, but instead
vacate the judgment of the Court of Federal Claims and direct that court to
dismiss the complaint as untimely filed.
The Fallinis brought their claim against the United States
under the Tucker Act, 28 U.S.C. § 1491.
Actions brought under the Tucker Act are time‑barred unless they
are filed within six years of the date that the cause of action accrued.
28 U.S.C. § 2501. As a general matter, a cause of action accrues when all
the events have occurred that fix the defendant's alleged liability and entitle
the plaintiff to institute an action.
Alliance of Descendants of Texas Land Grants v. United States, 37 F.3d 1478,
1481 (Fed.Cir.1994). The
question whether the pertinent events have occurred is determined under an
objective standard; a plaintiff
does not have to possess actual knowledge of all the relevant facts in order for
the cause of action to accrue.
Menominee Tribe v. United States, 726 F.2d 718, 721 (Fed.Cir.),
cert. denied, 469 U.S. 826, 105 S.Ct. 106, 83 L.Ed.2d 50 (1984).
In the present case, the objective standard is clearly met,
because the appellants have been cognizant of the facts underlying the alleged
taking since long before they filed their complaint in the Court of Federal
Claims. The complaint alleges
that the uncompensated taking began in 1971, when Congress enacted the Wild
Free‑Roaming Horses and Burros Act, and has continued since that time.
On October 3, 1983, the Fallinis sent a bill to the Bureau of
Land Management seeking compensation for the water drunk by the wild horses.
At least by that date, then, the Fallinis were aware of all the facts
necessary to establish the liability of the United States for the alleged
taking. Unless the Fallinis
were justified in delaying the filing of their complaint following that event,
their claim is barred because it was not filed in the Court of Federal Claims
until 1992, more than six years after the 1983 bill that the Fallinis submitted
to the Bureau of Land Management.
The Fallinis advance two theories that, they claim, enable
them to avoid dismissal under the time bar.
First, they argue that their complaint was filed within the limitations
period because they have experienced a continuous taking over many years and the
taking did not stabilize until November 28, 1986, a date slightly less than six
years before the filing of their suit. Second, they allege that every drink
taken by every wild horse from 1971 through the date of the filing of their
complaint constituted a separate taking.
Under that theory, the Fallinis would not be able to recover for any
water taken more than six years before they filed suit, but they would be
entitled to claim compensation for the water taken within the six‑year
period before their complaint was filed.
As we analyze the case, neither of the Fallinis' theories suffices to
overcome the limitations bar.
In support of their first theory, the Fallinis claim that they
have been subject to a continuous taking under United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed.
1789 (1947), and its progeny.
See generally Applegate v. United States, 25 F.3d 1579, 1581‑84
(Fed.Cir.1994). Under that
theory, they contend, their cause of action for the continuous taking that began
in 1971 did not accrue until 1986.
Dickinson, the Supreme Court announced the principle that, when the
government allows a taking of land to occur by a continuing process of physical
events, plaintiffs may postpone filing suit until the nature and extent of the
taking is clear. 331 U.S. at 749,
67 S.Ct. at 1385. The taking
in Dickinson resulted from the
government's construction of a dam that intermittently inundated the property of
nearby landowners. Noting
that the landowners were uncertain at first how frequently the dam would result
in flooding (and thus whether an actual permanent taking had occurred), the
Court in Dickinson held that the
plaintiffs' cause of action in such a case does not accrue until "the
situation becomes stabilized."
contains language that can be read to suggest that a cause of action for a
taking does not accrue until all the damages resulting from the taking can be
See, e.g., Dickinson, 331 U.S. at 749, 67 S.Ct. at 1385 (landowner
may postpone suit until "the consequences [of the governmental act in
question] have so manifested themselves that a final account may be
interpretation of the Dickinson rule,
however, would be broader than even the appellants contend for, as it would mean
that in a case such as this one, where the damages continue to increase over
time, the plaintiffs' cause of action would never accrue and the statute of
limitations would never run.
See Gustine Land & Cattle Co. v. United States, 174 Ct.Cl. 556,
656, 1966 WL 8856 (Ct.Cl.1966) (broad interpretation "would put the
Dickinson doctrine in unending conflict with the statute of
The Supreme Court has not read
Dickinson so expansively. In
United States v. Dow, 357 U.S. 17, 27, 78 S.Ct. 1039, 1047, 2 L.Ed.2d 1109
(1958), the Court characterized Dickinson
as holding only that the statute of limitations does not bar an action for a
taking by flooding "when it was uncertain at what stage in the flooding
operation the land had become appropriated to public use."
Following Dow, the
Court of Claims adopted a similarly narrow interpretation of Dickinson and the meaning of "stabilization" in the
takings context. In
Kabua v. United States, 546 F.2d 381, 384, 212 Ct.Cl. 160 (1976), the court
noted that in Dow, the Supreme Court "more or less limited [Dickinson
] to the class of flooding cases to which it belonged, when the landowner must
wait in asserting his claim, until he knows whether the subjection to flooding
is so substantial and frequent as to constitute a taking."
Accord Hilkovsky v. United
States, 504 F.2d 1112, 1114, 205 Ct.Cl. 460 (1974) (Dow
"distinguished the flooding situation in
Dickinson from other types of Government taking because, in the slow
flooding situation in Dickinson, the
full extent of the Government taking could not be known until the high water
mark of the flooding had been reached").
And in Barnes v. United States,
538 F.2d 865, 210 Ct.Cl. 467 (1976), on facts very similar to those in Dickinson, the court held that a taking by flood accrued in 1973
rather than in 1969, the date of the first flood. The court explained that the taking must be dated from
the time that "it first became clearly apparent ... that the intermittent
flooding was of a permanent nature."
Id. at 873. In other post‑Dickinson
cases, the Court of Claims has made clear that it is not necessary that the
damages from the alleged taking be complete and fully calculable before the
cause of action accrues.
Columbia Basin Orchard v. United States, 88 F.Supp. 738, 739, 116
Ct.Cl. 348 (1950) ("we do not think the Supreme Court, in the
Dickinson case, meant to hold that plaintiff was entitled to wait until any
possibility of further damage had been removed");
Nadler Foundry & Mach. Co. v. United States, 164 F.Supp. 249,
251, 143 Ct.Cl. 92 (1958) (same);
see also Wilcox v. Executors of Plummer, 29 U.S. (4 Pet.) 172, 177, 7
L.Ed. 821 (1830) (statute of limitations begins to run when breach of duty
occurs; "right to sue is not
suspended, until subsequent events shall show the amount of damage or
In the case at bar, the "permanent nature" of the
taking was evident to the Fallinis at least by 1983, when they sent their water
bill to the Bureau of Land Management.
The Fallinis maintain that the taking was continuous from 1971 on, but
that it did not "stabilize" until November 28, 1986. The only event to occur on or about that date, however,
was the formation of the Herd Management Area (HMA) in settlement of one of the
Fallinis' prior suits against the government.
The HMA established the historical location and herd
population of wild horses in the Reveille Allotment.
As part of the settlement, the Bureau of Land Management undertook to
conduct an annual census of wild horses in the HMA and to remove any excess
horses. Thus, the formation
of the HMA served only to reduce the damages the Fallinis were suffering because
of the alleged taking; it did nothing to establish that the horses' drinking
constituted a taking for which the United States was liable.
Three years before the HMA was established, the Fallinis
billed the federal government for the water allegedly taken by the wild horses
up to that point. At least by that time, the situation had become clearly
apparent, and therefore had "stabilized" within the meaning of
Dickinson, because the bill that the Fallinis sent to the Bureau of Land
Management indicated that they were fully aware of all the facts that, on their
view of the case, led to the conclusion that the government's actions amounted
to a taking. The only changes in the ensuing years were changes in
the number of protected horses in the Reveille Allotment, and thus the amount of
water taken. Nothing that
happened in those later years had the legal effect of triggering, for the first
time, the Fallinis' obligation to sue for the alleged takings that had occurred
since the enactment of the Wild Free‑Roaming Horses and Burros Act in
1971. Thus, the Fallinis'
first theory does not allow them to avoid the statute of limitations bar.
Under their second theory, the Fallinis concede application of
the time‑bar as to pre‑1986 events, but seek compensation for injury
they suffered after 1986, i.e., within
the six years prior to the filing of their suit.
That claim, however, depends upon characterizing every drink by every
wild horse as a new and independent federal taking compensable under the Fifth
In analyzing this theory of recovery, it is useful to
analogize the conduct at issue in this case to a taking of real property.
If a landowner owns a parcel of beachfront property and the government
enacts legislation demanding that the landowner allow others to walk along the
shore, the government has effected a taking of an easement on the landowner's
See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 107 S.Ct.
3141, 3145, 97 L.Ed.2d 677 (1987). For
purposes of claim accrual, such a taking occurs on the date of enactment of the
legislation. Alliance of Descendants of
Texas Land Grants v. United States, 37 F.3d at 1482; De Anza Properties X, Ltd.
v. Santa Cruz, 936 F.2d 1084 (9th Cir.1991).
Every instance of a beachcomber using the public easement does not
constitute a separate taking, even though each use may inflict psychic or
economic injury on the landowner.
The analysis of the present facts is similar.
In their complaint, the Fallinis allege that the Wild Free‑Roaming
Horses and Burros Act deprived the Fallinis of their right to exclude wild
horses from the developed water sources on the Reveille Allotment. In
light of those allegations, it is the enactment of the statute, not the
individual intrusions by the horses, to which a court must look to determine if
there has been a taking.
The fact that the water at issue in this case is personalty
and the land at issue in the easement case was realty does not alter the nature
of the analysis. For purposes
of determining when the Fallinis' claim accrued, it is necessary in either case
to look to the nature and timing of the governmental action that constituted the
alleged taking. Alliance of Descendants of Texas Land Grants v. United
States, 37 F.3d at 1481.
If the horses were agents or instrumentalities of the United
States government, the analysis of what governmental action constituted the
alleged taking might well be different.
See Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1428 (10th
Cir.1986) (en banc), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987).
But the horses are not agents of the Department of the Interior any more
than beachcombers wandering across a property owner's land are agents of the
legislature that mandated the creation of an easement along the shore.
What the Fallinis may challenge under the Fifth Amendment is
what the government has done, not what the horses have done.
The only governmental action that could constitute a compensable taking
in this case is the government's directive forbidding the Fallinis from shooing
the horses away from the water that the Fallinis have produced at their
developed water sources. That
governmental action cannot be regarded as recurring with every new drink taken
by every wild horse, even though the consumption of water by the wild horses
imposes a continuing economic burden on the Fallinis. See Delaware State College v. Ricks, 449 U.S. 250,
258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (proper focus, for statute of
limitations purposes, "is upon the time of the [defendant's] acts, not upon the time at which the consequences of the acts became most painful").
Because the Fallinis identify the enactment of the Wild
Free‑Roaming Horses and Burros Act as the governmental action that
prevented them from fencing the horses away from their water sources, and
because they admit that they suffered injury from the date of enactment, their
claim must be regarded as accruing long before they filed their present suit.
Based on our analysis of the Fallinis' takings claim, we
conclude that their claim was time‑barred.
We therefore vacate the judgment and remand this case to the Court of
Federal Claims with instructions to dismiss the complaint as untimely.
Each party shall bear its own costs.
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