Appeal from the United States Court of Federal Claims in 07-CV-012, Judge Mary Ellen Coster Williams.
The opinion of the court was delivered by: Bryson, Circuit Judge.
Before RADER, BRYSON, and MOORE, Circuit Judges.
Robert Ingrum filed an action seeking just compensation for the government's removal of fill material from a hillside on his property. The Court of Federal Claims dismissed the action as time-barred under the applicable six-year statute of limitations. We affirm.
On March 16, 1999, Mr. Ingrum purchased approximately 3,300 acres of undeveloped land along the Mexican border near the small town of Candelaria, Texas. He paid $98,000 for the property. An unpaved road, known as "the River Road," provides the only vehicular access to the property. The paved highway that connects with the River Road ends in Candelaria, about four miles from the edge of Mr. Ingrum's property. The River Road crosses his property for about 2.75 miles and then continues northward along the Rio Grande. The property can be accessed by road from both the north and the south, although access from the north involves traversing a much longer stretch of unimproved road.
In 1997, heavy rainfall eroded a portion of the River Road south of the property. A task force from the Department of Defense built a bypass around the washed-out stretch of road and made additional improvements to the road. Those repairs were completed in 1998, prior to Mr. Ingrum's purchase of the property. To perform those repairs, the task force used fill material that it had excavated, with the permission of the previous landowner, from the side of a hill near a gravel pit on the property.Rainfall during the summer of 1998 again washed out portions of the road, including some of the roadwork that was completed earlier that year. The task force therefore returned to perform additional repairs. Before the government performed those repairs, Mr. Ingrum signed a "Right of Entry" permit authorizing the government to enter the property to repair the road and to carry out military training and other operations on the land. Mr. Ingrum signed that permit on March 13, 1999, shortly before closing on the property. The Right of Entry permit also contained a provision that stated: "The Owner (does/does not) grant the Government the right to use any buildings, timber or any other products of the land." Mr. Ingrum did not select either the "does" or "does not" option when executing the permit; instead, that portion of the form was left blank.
From March through April 1999, the government repaired the road by regrading it in some places, installing concrete culverts, and laying concrete slabs in flood-prone areas. To conduct those repairs, the government again excavated fill material from the same hillside borrow pit on Mr. Ingrum's property. The removal of the fill material left a "bowl-like formation" on the hillside that was plainly visible from the portion of the River Road that crossed the property. Mr. Ingrum estimated that the excavated area was roughly 200 feet across.
Prior to purchasing the property, Mr. Ingrum had accessed it from the south on numerous occasions. Approaching from that direction, the trip to the property was a 12-hour drive from Mr. Ingrum's residence in Austin, Texas. Although Mr. Ingrum attempted to make that drive several times after the government completed its repairs of the road in April 1999, he was unable to drive onto the property on those occasions because flooding had rendered portions of the River Road south of the property impassable. Mr. Ingrum was aware that the River Road was passable from the north, but he chose not to access his property from that direction because doing so "would have required an additional 7-9 hours of driving" along rough, unpaved roads, which he regarded as "an untenable option."
Several times between 1999 and 2004, Mr. Ingrum spoke by telephone with a Border Patrol agent in order to determine the condition of the River Road; the agent reported on several occasions that the road was passable from the south. Mr. Ingrum did not attempt to access his property on those occasions, however, because those were all times when it was not convenient for him to make the drive.
Because Mr. Ingrum did not visit his property between April 1999 and 2005, he did not learn about the hillside borrow pit until he happened to encounter a migrant worker in Candelaria in May 2004. The worker, who had crossed Mr. Ingrum's property in order to gain access to the Rio Grande, told Mr. Ingrum about the pit and commented that the government construction workers "took a lot of material" from the hillside. Some eight or nine months later, Mr. Ingrum visited his property and saw the borrow pit for the first time.
On August 2, 2006, another 18 months after seeing the borrow pit, Mr. Ingrum filed a takings claim against the United States in the Court of Federal Claims. He sought $324,000 in compensation for the taking of the fill material that was used for the 1999 road repairs. Although that figure was more than three times the price that Mr. Ingrum had paid for the entire 3300-acre property in 1999, Mr. Ingrum justified the amount as an estimate of what it would have cost the government to purchase and transport from the nearest gravel pit enough material to rebuild seven miles of road. After dismissing his suit voluntarily to cure an unrelated jurisdictional defect, Mr. Ingrum filed another complaint in the Court of Federal Claims on January 9, 2007.
The government sought dismissal of the action as time-barred under the six-year statute of limitations for actions falling within the jurisdiction of the Court of Federal Claims. Mr. Ingrum argued that his claim did not accrue at the time the fill material was taken in March and April 1999, because he was unaware of the taking and had no reason to be aware of it until he learned about the borrow pit in May 2004. He contended that he was not chargeable with knowledge of the taking because he lived far from the property, he had been unable to access the property from the south on several occasions because of poor road conditions, and the Right of Entry permit had not given him notice that the government intended to take material from his land. For those reasons, he argued that his takings claim accrued only when he first learned of the alleged taking in 2004. Accordingly, he contended that his suit, which was filed in 2006, was filed within the six-year limitations period.
The Court of Federal Claims ruled that because the actions giving rise to the takings claim were not inherently unknowable, Mr. Ingrum's claim accrued in April 1999 when the government completed its repair work. Ingrum v. United States, 81 Fed. Cl. 661 (2008). Accordingly, the court dismissed Mr. Ingrum's action as ...