Filed: Apr. 23, 2020
Latest Update: Apr. 23, 2020
Summary: Case: 19-1836 Document: 70 Page: 1 Filed: 04/23/2020 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit _ MARY SWARTZLANDER, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee _ 2019-1836 _ Appeal from the United States Court of Federal Claims in No. 1:15-cv-01567-MCW, Senior Judge Mary Ellen Cos- ter Williams. _ Decided: April 23, 2020 _ MARIANNE G. DUGAN, Marianne Dugan, P.C., Eugene, OR, for plaintiff-appellant. TAMARA N. ROUNTREE, Environm
Summary: Case: 19-1836 Document: 70 Page: 1 Filed: 04/23/2020 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit _ MARY SWARTZLANDER, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee _ 2019-1836 _ Appeal from the United States Court of Federal Claims in No. 1:15-cv-01567-MCW, Senior Judge Mary Ellen Cos- ter Williams. _ Decided: April 23, 2020 _ MARIANNE G. DUGAN, Marianne Dugan, P.C., Eugene, OR, for plaintiff-appellant. TAMARA N. ROUNTREE, Environme..
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Case: 19-1836 Document: 70 Page: 1 Filed: 04/23/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARY SWARTZLANDER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1836
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-01567-MCW, Senior Judge Mary Ellen Cos-
ter Williams.
______________________
Decided: April 23, 2020
______________________
MARIANNE G. DUGAN, Marianne Dugan, P.C., Eugene,
OR, for plaintiff-appellant.
TAMARA N. ROUNTREE, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by JEFFREY B. CLARK, ERIC GRANT.
______________________
Case: 19-1836 Document: 70 Page: 2 Filed: 04/23/2020
2 SWARTZLANDER v. UNITED STATES
Before PROST, Chief Judge, CLEVENGER and DYK,
Circuit Judges.
PROST, Chief Judge.
Mary Swartzlander appeals from the decision of the
United States Court of Federal Claims dismissing her tak-
ings claim as timed-barred under 28 U.S.C. § 2501. See
Swartzlander v. U.S.,
142 Fed. Cl. 435 (2019) (“Decision”).
We affirm.
I
Ms. Swartzlander owned property running along a
creek across from a wetland restoration project conducted
by the Bonneville Power Administration. The Bonneville
Power Administration is part of the U.S. Department of
Energy. The restoration project started in 2001 and con-
cluded in 2005.
In 2015, Ms. Swartzlander filed a takings claim with
the Court of Federal Claims alleging that the wetland res-
toration project caused erosion on her land. 1 The govern-
ment, arguing that Ms. Swartzlander’s claim was time-
barred, moved to dismiss the claim. 2 The court conducted
a four-day evidentiary hearing to consider the govern-
ment’s motion.
After holding the evidentiary hearing, the court con-
cluded that Ms. Swartzlander knew or should have known
that the wetland restoration project caused permanent
1 The government does not concede that the restora-
tion project caused erosion on Ms. Swartzlander’s property,
but for the purpose of this appeal, it has assumed that fact
in Ms. Swartzlander’s favor. See Appellee’s Br. 10 n.3.
2 Claims brought before the Court of Federal Claims
must be “filed within six years after such claim first ac-
crues.” 28 U.S.C. § 2501.
Case: 19-1836 Document: 70 Page: 3 Filed: 04/23/2020
SWARTZLANDER v. UNITED STATES 3
erosion on her property at least as early as 2006. See Deci-
sion, 142 Fed. Cl. at 444–46. Applying the “stabilization
doctrine,” the court determined that Ms. Swartzlander’s
claim accrued at least as early as that date.
Id. at 445–46.
Ultimately, because Ms. Swartzlander waited until 2015—
more than six years from 2006—to bring her takings claim,
the court dismissed the claim as time-barred.
Id.
Following the dismissal, Ms. Swartzlander appealed.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
II
We review the Court of Federal Claims’ decision to dis-
miss de novo, while we review its jurisdictional findings of
fact for clear error. Banks v. United States,
314 F.3d 1304,
1307–08 (Fed. Cir. 2003).
When a taking occurs through a gradual physical pro-
cess, such as erosion, the stabilization doctrine guides the
determination of a claim’s accrual date. Under the stabili-
zation doctrine, a claim accrues “when the environmental
forces have substantially and permanently invaded the pri-
vate property such that the permanent nature of the taking
is evident and the extent of the damage is reasonably fore-
seeable.” Boling v. United States,
220 F.3d 1365, 1371
(Fed. Cir. 2000) (internal quotation marks omitted). While
“[t]he point at which the erosion damage transitions from
‘mere inches’ to substantial encroachment is not amenable
to precise definition” we have noted that “the key issue” in
determining when a claim accrues “is whether the perma-
nent nature of the taking was evident such that the land
owner should have known that the land had suffered ero-
sion damage.”
Id. at 1373. Accordingly, “[t]he obligation
to sue arises once the permanent nature of the Government
action is evident, regardless of whether damages are com-
plete and fully calculable.” Mildenberger v. United States,
643 F.3d 938, 946 (Fed. Cir. 2011).
Case: 19-1836 Document: 70 Page: 4 Filed: 04/23/2020
4 SWARTZLANDER v. UNITED STATES
If the landowner can show either that the government
“concealed its acts with the result that plaintiff was una-
ware of their existence” or that the injury “was ‘inherently
unknowable’ at the accrual date,” a landowner’s claim may
be temporarily suspended until the landowner becomes
aware of the injury. Banks v. United States,
741 F.3d 1268,
1279–80 (Fed. Cir. 2014) (quoting Young v. United States,
529 F.3d 1380, 1384 (Fed. Cir. 2008)).
A
On appeal, Ms. Swartzlander contends that “where a
government entity sets in motion a process of gradual ero-
sion, that then is dramatically worsened by natural pro-
cesses—the claim does not accrue (and therefore the
limitations clock does not stark ticking) until the dramatic
effect is clear to the plaintiff.” Appellant’s Reply Br. 3. Put
another way, Ms. Swartzlander argues that, notwithstand-
ing that she was aware that the wetland restoration project
caused erosion to her property,
id. at 1, her claim did not
start accruing until the naturally-occurring high-water
event of 2012, which dramatically worsened the erosion on
her property.
Ms. Swartzlander’s argument, however, is contrary to
our case law. As noted above, the key issue for determining
when a claim accrues is when the landowner becomes
aware of the permanent nature of the taking. The Court of
Federal Claims, relying on exhibits and trial transcript,
made the factual determination that Ms. Swartzlander
knew or should have known of the permanent nature of the
erosion at least as early as 2006. See Deci
sion, 142 Fed. Cl.
at 444–46. Based on the record before us, Ms. Swartz-
lander has not persuasively demonstrated that the court’s
fact finding was clearly erroneous.
In addition, this is not a case where the accrual of the
claim was suspended. First, this is not a case where in
2006—the time of the accrual date—the erosion was only
mere inches. Compare
Boling, 220 F.3d at 1372–73 (noting
Case: 19-1836 Document: 70 Page: 5 Filed: 04/23/2020
SWARTZLANDER v. UNITED STATES 5
it is “virtually impossible for the landowner to discern that
land had been taken when the degree of encroachment was
only ‘mere inches’”) with Appellant’s Reply Br. 1 (noting
that, as of 2006, there was “about 15 to 30 feet” of erosion”
to Ms. Swartzlander’s property). Second, this is also not a
case where the government’s mitigation efforts to counter
the erosion to landowner’s property concealed the erosion’s
permanent nature. Compare
Banks, 741 F.3d at 1282 (not-
ing that “the Government’s mitigation efforts . . . delayed
when Appellants knew or should have known they had a
claim”) with Appellant’s Reply Br. 3 (noting that, by 2006,
the government would not “work with her”). Accordingly,
the Court of Federal Claims did not err when it found that
the claim should not be suspended.
IV
We have considered Ms. Swartzlander’s other argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Court of Federal Claims’ holding that
Ms. Swartzlander’s takings claim is time-barred.
AFFIRMED