## United States Court of Appeals for the Federal Circuit
2008-5022 RICHARD CARY, SUSAN CARY, PATRICIA GEERTS, SHARON HENRY, JAMES HERZOG, DIANE KNUEFFER, PATRICIA MARTIN, ROBERT S. MA RTIN, JANET MARIE PRIATT, DONA SCHNEIDER, DOUGLAS SCHWAEBE, CARL SCHWEIKERT, KATHERINE SCHWEIKERT, DAVID SOUTHCOTT, and MARY CAROL WI LDER, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,

v. UNITED STATES, Defendant-Appellee. Mark S. Grotefeld , Grotefeld & Hoffmann, LLP, of Chicago, Illinois, argued for plaintiffs-appellants. Wi th him on the brief were Todd C. Harshman and Waylon J. Pickett , of San Francisco, California. Katherine W. Hazard , Attorney, Environment and Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendantappellee. With her on the brief were Ronald J. Tenpas , Assistant Attorney General, and Katherine J. Barton and Marc A. Smith , Attorneys. Appealed from: United States Court of Federal Claims Senior Judge John P. Wiese

### UNITED STATES COURT OF APPEAL S FOR THE FEDERAL CIRCUIT

2008-5022

RICHARD CARY, SUSAN CARY, PATRICIA GEERTS, SHARON HENRY, JAMES HERZOG, DIANE KNUEFFER, PATRICIA MARTIN, ROBERT S. MA RTIN, JANET MARIE PRIATT, DONA SCHNEIDER, DOUGLAS SCHWAEBE, CARL SCHWEIKERT, KATHERINE SCHWEIKERT, DAVID SOUTHCOTT, and MARY CAROL WILDER, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,

v. UNITED STATES, Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 06-CV-707, Senior Judge John P. Wiese.

______________________ DECIDED: January 16, 2009

_______________________

Before MAYER, LINN, and MOORE, Circuit Judges

. MAYER, Circuit Judge

. Richard Cary, et al., (“landowners”) appeal the judgment of the United States Court of Federal Claims denying their claims against the United States for the taking oftheir property without just com pensation by inverse condemnati on in the 2003 California “Cedar Fire.” Cary v. United States , 79 Fed. Cl. 145 (2007). Because the landowners have not stated a claim for wh ich relief may be granted, we affirm

. BACKGROUND The landowners are aggrieved owners of properties neighboring the Cleveland National Forest (“CNF”), near San Diego, Ca lifornia. On October 25, 2003, a deer hunter lost in the forest lit a signal fire to aid his rescue. Named the Cedar Fire, the fire spread and became one of the lar gest conflagrations in Califo rnia history. The fire claimed the lives of fifteen people, and c onsumed more than 273,000 acres of land, 2,232 residences, twenty-two commercial structures, and 566 outbuildings. The landowners’ properties were in the burned area. Fires are an unavoidable fact of life in Southern California, where they frequently and predictably occur during a “fire season.” T he area including the CNF is so prone to fire that its fire season is year-round, with Santa Ana wi nds exacerbating the likelihood and intensity of fires between September and December. It is believed that fires have occurred seasonally in the CNF since before hum ans lived in North America. According to the landowners, early fires were frequent, but of low-intensity, burning out without intervention. Beginning in 1911, the United States Forest Service implemented a policy to suppress all fires in the CNF, originally to protect timber and water reserves. Today such reasons include protec ting natural resources, air quality, and endangered species, and for public recreation. In 1968, the Forest Service ended its pol icy of mandatory suppression of fires, and replaced it with a policy of selective suppr ession, allowing fires to run their natural

2008-5022 2course under prescribed conditions, such as occurring late in the fire season. Within a few years, the Forest Service recognized t hat some places in the Southern California fire zone, including the CNF, were sustaini ng particularly high fuel loads which posed a greater risk for conflagrati on, and implemented policies call ed “fuel modification” which were designed to clear and thin flamm able vegetation and lower the risk of conflagration. The Forest Service conduct ed prescribed burns in the CNF to lower the risk of fire, although they were prevented from using prescribed burns in some areas because of such obstacles as riparian area or endangered species protection. In 2003, the year of the Cedar Fire, 97% of fires were extinguished within twentyfour hours of their discovery. This near total suppression of fires, the landowners allege, altered the “fire ecol ogy” of the CNF by disrupting the natural, frequent, lowintensity fires. They argue that low-int ensity fires consumed the underbrush and other flammable vegetation in the forest, and so the suppression of fires allowed the vegetation to accumulate into unnaturally thi ck stands of trees and underbrush. Any fire in the CNF, if not immediately controlled, would become a devastating firestorm, and on October 25, 2003, the lost hunter illegally set such a fire. Bec ause it occurred late in the day, fire crews were prevented from reaching it immediately in light of Forest Service policy which prohibited firefighting after sunse t. By the next day, it had become a major conflagration and eventually consum ed the landowners’ properties. The landowners filed suit in the United States Court of F ederal Claims on behalf of themselves and all others similarly si tuated who sustained dam age to a property interest as a result of the fire. They a ccused the Forest Service of taking the known calculated risk that its land m anagement policies in the CNF wo uld result in a taking of

2008-5022 3adjacent landowners’ property in the event of a fire originat ing in the CNF that spread outside its boundaries. Thus, they alleged that the United States tooktheir property by inverse condemnation without just compensation. The government moved for judgment on the pleadings becaus e the landowners failed to allege facts showing that the Fore st Service management policies in the CNF effected a compensable taking of their property for public use under the Fifth Amendment. It argued that the fire was caus ed by a lost hunter illegally setting a fire, not government policy. The court entered j udgment for the government: “Our difficulty is not with the foreseeability of the harm plai ntiffs suffered, but with the cause of the harm.” Cary , 79 Fed. Cl. at 148. The court furt her stated that unless the hunter was acting as its agent, causation could not be attributed to the government. Id. The landowners appealed. DISCUSSION When reviewing appeals in which the C ourt of Federal Claim s entered judgment on the pleadings pursuant to it s Rule 12(c), we apply the same standard of review as a case dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and review the judgment de novo

. See Chang v. United States , 859 F.2d 893, 894 (Fed. Cir. 1988). We must presume that the facts are as alle ged in the complaint, and make all reasonable inferences in favor of the plaintiff. Gould Inc. v. United States , 935 F.2d 1271, 1274 (Fed. Cir. 1991). To st ate a claim, the complaint mu st allege facts “plausibly suggesting (not merely consistent with)” a showing of entitlement to relief. See Bell Atlantic Corp. v. Twombley , 550 U.S. 544, ___, 127 S. Ct. 1955, 1966 (2007). The factual allegations must be enough to raise a ri ght to relief above the speculative level.

2008-5022 4Id. at 1965. This does not require the plaintiff to set out in detail the facts upon which the claim is based, but enough facts to state a claim to relief that is plausible on its face. Id. at 1974. The landowners also must prove subject matter jurisdiction. Mars Inc. v. Kabushiki-Kaisha Nippon Conlux , 24 F.3d 1368, 1372 (Fed. Cir. 1994). Whether a taking under the Fifth Amendm ent has occurred is a question of law with factual underpinnings. Alves v. United States , 133 F.3d 1454, 1456 (Fed. Cir. 1998). Therefore, we review the determination of law de novo , while in this case the facts must be accepted as alleged. The landowners placed the liability of the United States under the Tucker Act, which grants the Court of Federal Claims jurisdiction over claims for money damages “against the United States f ounded either upon the Constituti on, or any Act of Congress or any regulation of an executive departmen t, or upon any express or implied contract with the United States, or fo r liquidated or unliquidated da mages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2000); United States v. Mitchell , 463 U.S. 206, 216 (1983). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). The Fifth Amendment to t he United States Constitution provides in part that “private property [shall not] be taken for public use, without just compensation.” Because the government conducted no formal exer cise of eminent domain, this case is for alleged “inverse condemnation.” See Moden v. United States , 404 F.3d 1335, 1342 (Fed. Cir. 2005). Inverse condemnation is “a shorthand descripti on of the manner in which a landowner recovers just compensat ion for a taking of his property when condemnation proceedings hav e not been instituted.” Id. (quoting United States v. Clarke , 445 U.S 253, 257 (1980)) (quot ation marks omitted).

2008-5022 5The landowners rely on an analogy betwe en the fires here and flooding in cases typified by Ridge Line, Inc. v. United States , 346 F.3d 1346 (Fed. Cir. 2003), which set out a two part test that can be characteriz ed as causation and appropriation. In the causation prong, it must be shown that “the government intend[ed] to invade a protected property interest or [that] the asserted inva sion [was] the direct, natural, or probable result of an authorized activi ty and not the incident al or consequential injury inflicted by the action.” 346 F.3d at 1355 (citation removed). The landowners allege that two Forest Service policies constituted the authorized acti vities that caused the Cedar Fire. First, they cite the circa 1911 policy of suppressing all forest fires in the CNF and the nearly century long suppression of all or nearly all fires, instead of allowing them to consume the accumulated fuel load in t he forest. Second, they cite the policy of allowing human visitors to enter the forest for recreational purposes. The fire, they say, was the direct, natural, probable result of these policies. To prevail the landowners must first show that the government intended to invade a protected property interest. Clearly , the government did not intend to take the landowners’ land by use of an uncontrolled wildfire, and they do not allege that it did. Instead, they say that because they did “not allege that the gove rnment intentionally appropriated [their] property” the tr ial court can infer intent if the asserted injuries were “the direct, natural, or probable result of the [aut horized government acti on], rather than merely an incidental or consequential injury.” Ridge Line , 346 F.3d at 1356. They also point out that “an inverse condemnation plaintiff must prove that the government should have predicted or foreseen t he resulting injury.” Moden , 404 F.3d at 1343 (Fed. Cir. 2005). Moden clarified the meaning of “direct, natural, or probable result” to mean that

2008-5022 6the injury must be the likely result of the ac t, not that the act was the likely cause of the injury, the latter allowing for incidental injuri es resulting from a true cause-in-fact to be considered a taking. Id. (requiring plaintiffs to present evidence that the contamination of their ranch was the likely, foreseeable resu lt of the authorized use of a chemical on a nearby military installation). Therefore, to survive judgment on the pleadings, the landowners must plausibly show that the consumpti on of their property by fire was the likely, foreseeable result of Forest Service action. Their complaint alleges that the governm ent created a risk t hat wildfires would spread to neighboring properties through its policies. The government “was or should have been aware that its land m anagement policies as they related to fire suppression and prevention for the CNF created a significant risk that a wildfire originating in the CNF and fueled by the buildup of highly flamm able vegetation in the CNF would spread to adjacent landowners’ properties.” They similarly pleaded that the government took the calculated risk that a recreational user would start a fire, would do so during the extreme fire conditions of Oc tober 2003, and that the fire would likely become a wildfire resulting in the taking of property adjacent to the forest. Accepting arguendo that a policy is an action, * in charging the government with increasing the risk of a conflagration that would sp read to neighboring properti es, the landowners appear to have reversed the Moden rule, alleging that the policies we re the likely cause of the loss of their property. At a mini mum, they have not pleaded that the loss of property would

* The “policy” is not one author ized action but a set of intertwined, authorized actions. The landowners cherry-pick parts of the Fo rest Service policy which they argue have increased the risk of wil dfire since 1911 without acknowledgi ng that much of the Forest Service policy over the last century has been devoted to reducing the risk of wildfire by controlling the same fuel loads the landowner s allege have been allowed to accumulate.

2008-5022 7be the likely, foreseeable result of a policy of fire suppression and recreational use, but merely that the government knew of or incr eased a risk. Taking a calculated risk, or even increasing a risk of a detrimental result, does not equat e to making the detrimental result direct, natural, or probabl e. The only relevant direc t, natural, or probable result of the Forest Service policies pleaded by the landowners was a hei ghtened risk, not a wildfire that would spread to neighboring properties. The hole in the causal chain is the conversion of this risk into a wildfi re by the hunter who started it. The landowners argue that too much em phasis is placed on the ignition of the fire, and that the government is no t required to light the match in order to effect a taking. Like the Moden plaintiffs, the landowners rely on the line of flood cases in which the government was found liable for a taking when water impounded for a dam flooded areas beyond the pla nned impoundment. In Cotton Land Co. v. United States , 75 F. Supp. 232 (Ct. Cl. 1948), a poorly construct ed dam caused sediment to deposit in the riverbed upstream of the dam. Over time, t he sediment raised the level of the river bottom until the waters crested the banks, flooding the plaintiff’s land. The court found a taking even though the injury occurred year s after the act of constructing the dam, because the flooding was the “natural cons equence[] of the coll ision of sedimentbearing flowing water with still water, and the progress upstream, of the deposit begun by that collision.” Id. at 233. The court further not ed that had the engineers studied the question in advance, they would have pr edicted the flood wit h specificity. Id. at 233-34. In Avery v. United States , 330 F.2d 640 (Ct. Cl. 1964), the court further explained that the permanent flooding of the landowners’ property in Cotton Land was “originally set in motion by the erection of the dam,” id. at 645, and that the fl ood was the “actual and

2008-5022 8natural consequence of the Government’s act” because it was the natural progression of a chain of events occurring in a natural order without an intervening activity to break the chain of causation. Id. The landowners argue that the Forest Service policie s are analogous to building a dam. Dams disrupt the natural flow of water for the public good in the same way that fire suppression disrupts the natural consumpti on of fuel for the publ ic good. Like the Cedar Fire, the flooding in Cotton Land did not occur immediat ely after governmental action; the flooding resulted from “a succession of events . . . initiated” by the erection of the dam, including the filling of the riverbed with sediment which raised the level of the water and eventually overtopped the riverbanks flooding t he private property. 75 F. Supp. at 233. The key difference between the flood cases and the instant controversy is that the policy of suppressing fires did not set the Cedar Fire in motion as the dams did the floods. Cf. Avery , 330 F.2d at 645. As the court in Cotton Land noted, further study would have predicted the flood, when it would occur, and wher e it would occur. 75 F. Supp. at 234. Here, as the l andowners implied in their pleadings, for an injury resulting from the policy of suppressing fires in the CNF to occur, something had to ignite the fire. While the landowners pleaded that the government took the ri sk of a hunter or other recreational user starting a fire in the forest with its policy of welcoming such users, an actual ignition, not a risk, is what set the wildfire in the CNF. The hunter setting the fire was an intervening cause which broke any per ceived chain of causation between the Forest Service’s policies and the Cedar Fire.

2008-5022 9This is not to say that the government may escape liability per se by finding an incidental intervening or contributing cause between their authorized action and the alleged injury. Wherever there is an authoriz ed action, the causation prong is satisfied for any injury which is the direct, natural, and probable result of that action. For instance, had the government action been to accumulate fuel loads in the CNF, even without knowledge that such f uel loads would become a la rge conflagration upon any ignition, then any ignition, even one negligently start ed by unauthorized human hands, would be adequate for that governm ent act to satisfy the causation prong. This is because an ignition is the direct, natur al and probable result of the government intentionally allowing fuel loads to accumulate in a fire zone, and a conflagration is the direct, natural, and probable result of this ig nition in a forest with high fuel loads. However here, there is no authorized act of allowing the growth of fuel loads, and there are no direct, natural, and pro bable paths between the actu al authorized acts of suppressing fires and the Cedar Fire conflagr ation. Only by an intervening cause was the authorized action converted into a damaging event. The landowners would be correct that the government di d not need to light the match to be liable, but to be a taking, it must have at leas t authorized supplying the fuel. As a result, the question may not be whethe r the Forest Service’s polices, a lost hunter, or even a bolt of lightning caused the Cedar Fire. Ignition sources are ubiquitous in the CNF, but the landowners must allege in their complaint that the fire that destroyed their property was the direct, natural, and probable resu lt of the forest management policies. They have no t. The sequence of events in Cotton Land operated like a Rube Goldberg machine, with a concrete beginning (the dam), an

2008-5022 10ending (the flood), and in the middle, a series of steps each inevitably following from the one before it. Here, there is no concrete beginning, but merely a long sequence of decisions, some risk-increasing but others ri sk-decreasing, spread out over decades. No individual decision can be a beginning because each risk-decreasing action in the Forest Service’s policies is an intervening act breaking whatever causal chain would lead from an accused risk-increasing action to the conflagration which destroyed the landowners’ property. Therefor e, we cannot infer from the complaint the steps between fuel load accumulation and t he damage to the landow ners’ property with the specificity required by Cotton Land . Instead, the landowners attemp t to rely on the insufficient general allegation that the risk of damage arose from the buildup of flammable vegetation. The landowners also respond that where the injury is foreseeable, there can be no intervening cause. See Moden , 404 F.3d at 1343-34 (reviewing the rejection of the “remoteness of cause” defense in Cotton Land , 75 F. Supp. 232). They argue that the government actually foresaw the destruction of property by fire escaping the CNF. However, they mis understand the precedent. Averyclarified that we look to the law of torts when handling a remote cause, and when no intervening cause breaks the chain of causation, we have found a taki ng. 330 F.2d at 644-45. “[I]n other words, injury may not be foreseeable if an intervening caus e breaks the chain of causation.” Moden , 404 F.3d at 1344. This does not mean that the reverse is true, that an injury foreseeable necessarily is without a break in the chain of causation. Foreseeability and causation are separate elements that must both be shown (when intent is not alleged). See Moden , 404 F.3d at 1343 (“ In addition to causation , an inverse condemnation plaintiff

2008-5022 11must prove that the governm ent should have predicted or fore seen the resulting injury.” (emphasis added)). For an injury to be a co mpensable taking, the court must determine that no break in the chain of causation existed between the suspected government authorized action and the injury. The landowner s have identified the fire suppression and recreational use policies as the government authorized actions which caused the destruction of their property. However, even if the destr uction of the property was foreseeable, as we must accept at the pleading stage, the hunter lighting the signal fire was a clear intervening cause that broke t he chain of causation between the authorized act and the injury. The landowners also fail to sa tisfy the appropriation prong of Ridge Line . “Even where the effects of the government action ar e predictable, to constitute a taking, an invasion must appropriate a ben efit to the government at the expense of the property owner, or at least preempt the owners’ right to enjoy his property for an extended period of time, rather than merely inflict an injury that reduces its value.” Ridge Line , 346 F.3d at 1356. The landow ners have not pleaded and we cann ot discern any reason to conclude that the invasion has appr opriated any benefit to the government. The landowners pleaded that the government was acting in the public interest when it performed under its fi re suppression and recreationa l use policies. They said that the Forest Service continued its land management polic ies, including its public access practices, in furtherance of the public ’s interest: the preservation of timber, watersheds and wildlife, and public use and enjoyment. Theyargue that they should not be required to shoulder the loss for the publ ic. However, these public interests are not benefits resulting from the invasion that destr oyed the properties. To the contrary,

2008-5022 12the wildfire that destroyed the properties also destroyed the public interests the policies sought to protect. This is in contrast to the fl ood cases. For instance, in Ridge Line , when the landowners’ property was inundated, ev en though sporadically, the government was found to have acquired a flowage easement from the runoff created by its alteration of the area’s storm drainage. 346 F.3d at 1352. Here, the government has acquired no easement of any sort, or any ot her property through the fire. The landowners also argue that they m eet the second prong because their real and personal property was destroyed. They ar gue that one can plausibly infer from this allegation that because the fire destroyed the infrastructure, their right to enjoy their property has been preempted fo r an extended period of time because they cannot rebuild upon, or in some case s even access their land, five years after the fire. But we cannot plausibly infer that the fire, which wa s the invasion and is now extinguished, still prevents the rebuilding of infr astructure that would allow the landowners to reoccupy their property. To meet this preemption formulation of the appropriation prong, the complaint must allege that “the government’s inte rference with any proper ty rights of [the landowners] was substantial and frequent enough to rise to the level of a taking.” Ridge Line , 346 F.3d at 1357. That language developed from the long history of the Supreme Court’s flooding cases. A flood that invades land permanently may give rise to a takings claim. United States v. Lynah , 188 U.S. 445, 470 (1903) (“It is clear from these authorities that where the government by the construc tion of a dam or other public works so floods lands belonging to an individual as to subs tantially destroy their value

2008-5022 13there is a taking within the scope of the 5th Amendment.”). Si milarly, a flood gives rise to a taking where it creates a “permanent liability” because of “intermittent but inevitably recurring overflow.” United States v. Cress , 243 U.S. 316, 328 (1914) (“There is no difference of kind, but only of degree, between a permanent condition of continual overflow by backwater and a pe rmanent liability to intermitt ent but inevitably recurring overflows; and, on principle, t he right to compensation must ar ise in the one case as in the other.”). But floods that visit once an d then recede do not give rise to takings claims. Sanguinetti v. United States , 264 U.S. 146, 150 (1924) (h olding that “the injury was in its nature indirect and consequential, for which no im plied obligation on the part of the Government can arise” where flooding is neither permanent, nor is intermittent but inevitably recurring); see also Bartz v. United States , 633 F.2d 571, 577 (Ct. Cl. 1980) (listing cases where plaintiffs could not recover because “they failed to prove the element of inevitably recurri ng floods”). The former two types of floods appropriate the landowner’s property; the latter injure s but does not appropriate it. The landowners contend that the taking is permanent, arguing that “[f]ire, however, is not like one or two floodings that recede and then allow for a repossession of the land.” But many a city has rebuilt afte r a devastating fire, so we cannot infer from the complaint that the fire pr evented the rebuilding of infrastr ucture that would allow the landowners to reoccupy their property. Furthermore, floods and fires can both substantially injure real and personal property with merely one invasion. In the flooding cases, appropriation means that the wate r stays on the property indefinitely, or predictably returns—a permanent invasion. Here, the fire has come and gone, and there is no allegation that the injuries prevent future use of the land, or t hat the fire will

2008-5022 142008-5022 15 intermittently but inevitably recur. To satisfy the appropriation requirement, the preemption must be sufficiently permanent that it can be said that the government has exercised dominion over the property. CONCLUSION Accordingly, the judgment of the United States Court of Federal Claims is affirmed.
AFFIRMED