# In the United States Court of Federal Claims

No. 13-268 C Filed: December 16, 2013

**************************************** * DAVIS WETLANDS BANK, LLC, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * * ****************************************

Douglas E. Kahle , Wolcott Rivers Gates, Virginia B each, Virginia, Counsel for Plaintiff.

Meen Geu Oh , United States Department of Justice, Civil Division, Washington, D.C., Counsel for Defendant.

MEMORANDUM OPINION AND ORDER

BRADEN

, Judge

.
I. RELEVANT FACTUAL BACKGROUND. 1

On November 4, 1998, Davis Wetlands Bank, LLC (“the Bank”), the United States Army Corps of Engineers (“the Army Corps”), the Un ited States Fish & Wildlife Service (“USFWS”), and the Virginia Department of Environmen tal Quality (“VDEQ”), established a wetlands

1 The relevant facts discussed herein were derive d from the April 15, 2013 Complaint and attached exhibits: (1) Federal Guidance for the Establishment, Use and Operation of Mitigation Banks (“Ex. A”); (2) Umbrella Memorandum of Agreement Between Bank Sponsor, U.S. Army Corps of Engineers, et al. to Establish a Pr ocedure for Compensation for Wetland Habitat Losses in Southeastern Virginia in the Davis Wetla nd Bank, LLC and for the Development and Use of Such Bank (“Ex. B”); (3) Site-Specific Plan for the Davis Wetland Bank, Chesapeake, Virginia (“Ex. C”); (4) a 2001 amendment to the Umbrella Agreement (“Ex. D”); (5) an August 24, 2012 email between the Bank, the Army Corps, th e USFWS and the VDEQ (“Ex. E”); and a November 21, 2012 letter from William T. Walker, Chief, Regulatory Branch, Department of the Army, Norfolk District Corps of Engineers, to Mr. Douglas Davis, Davis Environmental Consultants, Inc. and Mr. Emil A. Viola, Grea t Dismal Swamp Restoration Bank, LLC (“Ex. F”). Clean Water Act, 33 U.S.C. § 1344 (permits for dredged or fill material); Jurisdiction; Motion to Dismiss, RCFC 12(b)(1) and 12(b)(6); Regulatory instrument; 33 C.F.R. § 332.8(o)(3) (credits issued re: wetlands mitigation); 60 Fed. Reg. 58,605-02, 58,606 (Nov. 28, 1995) (Federal Guidance for the Establishment, Use and Operation of Mitigation Banks).2 mitigation bank, 2 pursuant to an Umbrella Memorandum of Agreement (“Umbrella Agreement”). Compl. ¶¶ 1, 19, Ex. B. The Umbrella Agreement “establish[ed] general provisions for the design, development, constr uction, use and monitoring of a compensatory wetland bank . . . and . . . a procedure for pr oviding off-site compen sation for unavoidable wetland impacts (primarily) in Southeaste rn Virginia.” Compl. Ex. B at 1.

On November 24, 1998, a Site-Specific Plan for the Davis Wetland Bank (“Site-Specific Plan”) was implemented, that was revised on March 31, 1999. Compl. ¶ 20 & Ex. C. That plan required the Bank to “block[] the drainage discharge from the s ite to increase the hydrology” and “plant[] thousands of tree seedlings.” Comp l. ¶ 28. On September 26, 2001, the signatories amended the Umbrella Agreement. 3 Compl. ¶ 21 & Ex. D.

Under the Final Agreement, the Bank committed to restore agricultural and forested areas to wetlands and preserve existin g wetlands, as well as provide fi nancial assurance for the Bank’s performance. Compl. ¶ 23 & Ex. B at 5. In exch ange, the Army Corps agreed to issue the Bank one wetland credit per 1.00 acre of restored cropland, 0.50 acres of restored previously-drained forest; or 7.5 acres of existing wetlands. 4 Compl. Ex D. The Bank could then “sell credits to third parties as compensation mitigation for unavoidable impacts to wetlands that were permitted, pursuant to Section 404 [33 U.S.C. § 1344] of the [Clean Water Act].” Compl. ¶ 25.

The Final Agreement also required that the Bank provide the Army Corps with an annual report for seven years. 5 Compl. Ex. C. At the end of th e first 5-year monitoring period, “the

2 Federal guidelines define wetlands mitigation banking as:

[W]etland restoration, creation, enhancem ent, and in exceptional circumstances, preservation undertaken expressly for the purpose of compensating for unavoidable wetland losses in advance of development actions, when such compensation cannot be achieved at the de velopment site or would not be as environmentally beneficial. It typically involves the consolidation of small, fragmented wetland mitigation projects into one large contiguous site. Units of restored, created, enhanced or preserve d wetlands are expressed as “credits” which may subsequently be withdrawn to offset “debits” incurred at a project development site.

Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, 60 F ED

. R EG

. 58,605-02, 58,606 (Nov. 28, 1995).

3 Hereinafter, the court will refer to the Um brella Agreement, amendments thereto, and the Site-Specific Plan as the “Final Agreement.”

4 “The number of credits must reflect the di fference between pre- and post-compensatory mitigation project site conditions, as determinedby a functional or condition assessment or other suitable metric.” 33 C.F.R. § 332.8(o)(3).

5 An annual report was required for the first fi ve years, but was extended to seven years, under the Site-Specific Plan. Compl. ¶¶ 26–27, Ex. B at 11, & Ex. C at 4.3 credit composition [would] be reevaluated and ma y be adjusted to reflect maturation of the restored or created wetlands.” Compl. Ex. B. On October 30, 2001, the Army Corps agreed to issue the Bank 389.9 credits, “subject to the su ccess of [the Bank’s] re storation and creation efforts.” 6 Compl. ¶ 39 & Ex. D.

The Army Corps, however, susp ended the performance of th e wetlands bank from June 16, 2006 to September 8, 2009, because of “a temporary property ownership dispute.” Compl. ¶ 29. During that time, the Bank c ontinued to monitor and report on the restoration activities and, in 2009, provided a final progress report to the Army Corps. Compl. ¶¶ 30–31.

Sometime in 2012, the Bank requested that the Army Corps issue an additional 139.5 credits to reflect the development of certain agricultural fields into mature forested wetlands. Compl. ¶ 47. On August 24, 2012, however, the Army Corps denied that request. Compl. ¶ 49, Ex. E, & Ex. F.

II. PROCEDURAL HISTORY.

On April 15, 2013, the Bank filed a Complaint in the United States Court of Federal Claims alleging that the Army Corps’ refusal to adjust credit composition to reflect the maturation of the restored agricultural fields into forested wetlands violated 33 C.F.R. § 332.8(o)(3), and breached the Final Agreement. Compl. ¶¶ 50–53. Accordingly, the Bank seeks alleged damages for the Army Corps’ refusal to issue the additional 139.5 credits, in the amount of $1,395,000. Compl. ¶ 53.

On July 24, 2013, the Government filed a Moti on To Dismiss. On August 23, 2013, the Bank filed a Response. On September 6, 2013, the Government filed a Reply.

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated da mages in cases not sounding in tort.” 28 U.S.C.

6 The total 389.9 credits consists of:

(i) 139.5 credits for planting trees and re storing hydrology to 139.5 acres of agricultural fields;

(ii) 226 credits for restoring the 113 acres of restored previously-drained forest; and

(iii) 24.4 credits for preserving 182.7 acres of existing wetlands.

Compl. ¶ 39.4 § 1491(a)(1). The Tucker Act, however, is only a “jurisdictional statute; it does not create any substantive right enforceable against th e United States for money damages.” United States v. Testan , 424 U.S. 392, 398 (1976). Therefore, in order to pursue a substantive right, a plaintiff must identify and plead an independent contractual relationship, constitu tional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages for the court to have jurisdiction. See Todd v. United States , 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act.”); see also Fisher v. United States , 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en ba nc) (“The Tucker Act . . . does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages. In the parl ance of Tucker Act cases, that source must be ‘money-mandating.’”).

B. Standard Of Review For A Motion To Dismiss Pursuant To RCFC 12(b)(1).

A challenge to the United States Court of Fede ral Claims’ “general power to adjudicate in specific areas of substantive law . . . . is pr operly raised by a [Rule] 12(b)(1) motion[.]” Palmer v. United States , 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also Rules of the United States Court of Federal Claims (“RCFC”) 12(b)(1 ) (allowing a party to assert, by motion, “lack of subject-matter jurisdiction”). When consider ing whether to dismiss an action for lack of subject matter jurisdiction, the co urt is “obligated to assume all factual allegations of the complaint to be true and to draw all reas onable inferences in plaintiff’s favor.” Henke v. United States , 60 F.3d 795, 797 (Fed. Cir. 1995).

Nonetheless, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv. , 846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter jurisd iction [is] put in questi on . . . [the plaintiff] bears the burden of establis hing subject matter jurisdic tion by a preponderance of the evidence.”).

C. Standard Of Review For A Motion To Dismiss Pursuant To RCFC 12(b)(6).

A challenge to the United States Court of Federal Claims’ “[ability] to exercise its general power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] 12(b)(6) motion[.]” Palmer , 168 F.3d at 1313; see also RCFC 12(b)(6) (“Every defense to a claim for relief in any pleading must be asserted in the responsive pleadi ng . . . . But a party may assert the following defenses by mo tion: . . . (6) failure to state a claim upon which relief can be granted[.]”).

When considering whether to dismiss an action for failure to state a claim, the court must assess whether “a claim has been stated adequate ly” and then whether “it may be supported by [a] showing [of] any set of f acts consistent with the allegations in the complaint.” Bell Atl. Corp.

v. Twombly , 550 U.S. 544, 563 (2007). The plaintiff’s f actual allegations must be substantial enough to raise the right to relief “above the speculative level,” accepting all factual allegations in the complaint as true and making all reasonable inferences in favorof the plaintiff. Id. at 555.5 D. Issues Raised In The Government’s July 24, 2013 Motion To Dismiss.

1. Whether The Court Has Jurisdiction To Adjudicate Breach Of Contract Claims Arising From The Final Agreement.

a. The Government’s Argument.

The Government advances two arguments in support of the Motion To Dismiss, pursuant to RCFC 12(b)(1). First, the court does not have jurisdiction to adjudicate the claims alleged in the April 15, 2013 Complaint under the Tucker Act, because the Final Agreement is not a contract. Gov’t Mot. 6–8. Second, the court does not have jurisdiction, because the Final Agreement does not contemplate money damages as a remedy. Gov’t Mot. 8–10.

A clear indication of intent to contract mustbe found before concluding a contract has been formed. Gov’t Mot. 6 (citing D & N Bank v. United States , 331 F.3d 1374, 1378 (Fed. Cir. 2003)). The Government, however, insists that th e Final Agreement was not a contract but “a regulatory instrument,” the purpos e of which was to “establish ge neral provisions for the design [and] development . . . of a compensatory wetl and bank[.]” Gov’t Mot. 7. The Army Corps’ actions to “effectuate regulat ory proclamations” and “exercis e the Government’s sovereign function does not signify intent to contract.” Gov’t Mot. 6 (citing Anderson v. United States , 344 F.3d 1343, 1357 (Fed. Cir. 2003); D & N Bank , 331 F.3d at 1378).

More specifically, the Government contends that the Army Corps’ role in the Final Agreement was in the nature of a regulator and supervisor, i.e. to verify “the geographic parameters of the proposed mitigation bank, . . . over[ see] . . . the project, establish criteria that [the Bank] must follow to obtain credits, adjudge the suitability for a particular compensation proposal or compensation site, determine approp riate credit composition ratios, and generally inform [the Bank of non-complianc e].” Gov’t Mot. 7 (internal citations and quotations omitted). As such, the Army Corps was not a party to the Final Agreement, but the regulation. Gov’t Mot. 7 (citing Hearts Bluff Game Ranch, Inc. v. United States , 669 F.3d 1326, 1331 (Fed. Cir. 2012) (“The mitigation bank program is run exclusively by the [Army] Corps, subject to its pervasive control, and no landowner can develop a mitigation bank absent [its] approval.”)). And, the Final Agreement is a “regulatory arrangement[],” not a contract. Gov’t Mot. 8. In fact, the Government suggests that the c ourt should view the Final Agreement as a permit. Gov’t Reply 1–2 (citing Hearts Bluff Game Ranch , 669 F.3d at 1331 (refe rring to an applica tion to establish a mitigation bank as a “permit”); United States v. Smith , 39 F.2d 851, 856 (1st Cir. 1930) (“In general, a license is not a contract.”); B LACK ’ S L AW D ICTIONARY (9th ed. 2009) (defining “permit” as a “license”)).

Only in “exceptional circumstances” may a c ourt construe a permit to be a contract. Gov’t Reply 3 (citing Son Broadcasting, Inc. v. United States , 52 Fed. Cl. 815 (2000) (finding that a Special Use Permit, togeth er with an incorporated Site Plan, concerning the development of mountaintop broadcasting towers in a national forest was a contr act)). In this case, the Final Agreement, unlike a contract, limits tr ansferability. Gov’ t Reply 4 (citing Hage v. United States

, 35 Fed. Cl. 147, 166–67 (1996) (stating that nontransferability weig hs in favor of finding a permit to be a license, not a contract)). The Army Corps also maintained a “unilateral right to suspend activity under the [Final Agreement],” if the Army Corps determined that the Bank did6 not meet certain requirements. Gov’t Reply 4 (citing Hage , 35 Fed. Cl. at 166–67) . In addition, the Final Agreement affords the Army Corps “the right to inspect, oversee, penalize, and generally manage and police, while [the Bank] is given little, if any, commensurate rights and privileges.” Gov’t Reply 4 (citing Meadow Green-Wildcat Corp. v. Hathaway , 936 F.2d 601, 604 (1st Cir. 1991) (treating a permit as a contra ct, where the terms did not grant “some special advantage” to the Government)); see also Gov’t Reply 5–7 (arguing that the Final Agreement includes no reciprocal obligations by the Army Corp s). In other words, this is not a case where the permittee’s substantial capital investments create an inference of intent to contract, because “the only security offered . . . is . . . a staggered release of credits upon approval by the [Army] Corps for [the Bank] achieving various benchmarks in the creat[ed] wetlands.” Gov’t Reply 7–9.

In the alternative, assuming arguendo that the Final Agreement is a contract, it does not contemplate the remedy of monetary damages, because the words “money” or “damage” are not included in the Final Agreemen t. Gov’t Mot. 8 (citing D & N Bank , 331 F.3d at 1378 (“[T]he intent to contract . . . is implausible because none of the documents . . . mentions goodwill or the accounting treatment thereof.”). Instead, in this case, the Bank attempts to transform its demand for additional credits into a demand for mone y damages. Gov’t Mot. 10. The only relief contemplated by the Final Agreement is “nonmonetary,” namely “credit adjustments under the Disputes Resolution Clause.” Gov’t Reply 9. Thus , “the only relief [the Bank] can rightly seek is extra credits . . . . [and t]he pr oper forum for such a dispute is th e district courts.” Gov’t Reply 10.

b. The Plaintiff’s Response.

The Bank responds that the Final Agreement is an enforceable government contract and any claims arising thereunder are within the court’s jurisdiction. Pl. Resp. 4 (citing 28 U.S.C. § 1491(a)(1)). The Army Corps wanted to protect ecological health and water quality. In response, the Bank agreed to “des ign, construct and maintain [a] wetlands bank” in exchange for mitigation credits that could be so ld to third parties. Pl. Res p. 4–5. This was an “exchange of consideration between parties” memorialized in a “multi-page written agreement.” Pl. Resp. 5.

The Umbrella Agreement, the Site-Specific Plan, and subsequent amendments reflect mutual obligations, rights, and re sponsibilities evidencing a contra ct. Pl. Resp. 5. For example, Section IX of the Final Agreement states that “[ t]he terms and conditions of this Agreement shall be binding upon, and inure to the be nefit of the parties hereto.” Compl. Ex. B at 13 (Umbrella Agreement). Section IX thereof contains an integration clause , allows only written modifications, and restricts third-party claims. Pl. Resp. 5–6 (citing Compl. Ex. B at 14–15 (Umbrella Agreement)).

Irrespective of what definition one choses, the Final Agreement includes all elements of a contract. Pl. Resp. 6–7 (citing Harbert/Lummus Agrifuels Projects v. United States , 142 F.3d 1429, 1434 (Fed. Cir. 1998) (holding that an express government contract is evidenced by: mutual intent; an exchange of consideration; a nd lack of ambiguity in offer and acceptance); Buchanan v. Doe , 246 Va. 67, 72 (1993) (defini ng a contract as an ag reement between two or7 more persons that obligates them to do or not do a specific thing)). 7 In this case, mutual understanding exists, because the Final Agreement sets forth the signatori es’ “relative rights and duties regarding future performance related to design, construction a nd maintenance of the wetlands bank and the credit compensation to be provided . . . in exchange for such performance.” Pl. Resp. 7. And, Section IX(J) of the Final Agreem ent authorizes the signatories “to seek enforcement hereof.” Pl. Resp. 7 (quo ting Compl. Ex. B at 15 (Umbrella Agreement)).

The assertion that the Final Agreement is a “regulatory pronouncemen t” is not supported by the cases cited by the Government. Pl. Resp. 7 (citing Anderson , 344 F.3d 1343; D & N Bank

, 331 F.3d 1374). In Anderson , the United States Court of Appeals for the Federal Circuit held that the Federal Home Loan Bank Board was not a party to a contract when it issued a resolution that approved a bank merger, but in stead was a regulator. Pl. Resp. 8–9 (citing Anderson , 344 F.3d at 1357). In this case, the Final Agreement does not only approve of a wetlands bank, but sets forth “a mutual and deta iled agreement” and “evidences the [Army] Corps’ agreement to award specif ic credits for specific types of wetlands restoration within the bank.” Pl. Resp. 9. Because “the analysis in D & N Bank is essentially the same [as in Anderson ] and Anderson relies on D & N Bank ,” that case is similarly inapposite to “the facts and agreement in the case at bar.” Pl. Resp. 9.

In addition, as the Government concedes, cont racts “generally are presumed to create a substantive right to damages as a remedy.” Pl . Resp. 10 (quoting Gov’t Mot. 9). Therefore, according to the United States Court of Appeals for the Federal Circuit in Holmes v. United States , 657 F.3d 1303 (2011), “when a breach of contract claim is brought in the [United States] Court of Federal Claims under th e Tucker Act, the plaintiff co mes armed with the presumption that money damages are available, so that norma lly no further inquiry is required.” Pl. Resp. 12 (quoting Holmes , 657 F.3d at 1314). In fact, a government contract expressly must disavow money damages to avoid this presumption. Pl. Resp. 12 (citing Holmes , 657 F.3d at 1314). Here, the Final Agreement contemplates money damages, because the Army Corps was well aware that the Bank sold the credits to third partie s, and thus any breach “would inherently affect the monetary compensation [the Bank] could derive from . . . the wetlands bank.” Pl. Resp. 13.

c. The Court’s Resolution.

Common law governs the contractual relationshi p between a private party and the United States. See United States v. Winstar Corp. , 518 U.S. 839, 871 (1996) (explaining that “ordinary principles of contract construc tion and breach . . . [that apply] to any contract action between private parties” govern a contract with the Government); Perry v. United States , 294 U.S. 330, 352 (1935) (“When the United States, with constituti onal authority, makes contracts, it has rights and incurs responsibilities similar to those of individuals who are parties to such instruments.”). Accordingly, the United States Court of A ppeals for the Federal Ci rcuit has held that “jurisdiction under the Tucker Act requires the li tigant to identify a subs tantive right for money

7 The Final Agreement specifies that it is governed by and is to be construed in accordance with United States and Virginia law. Pl. Resp. 6 (citing Compl. Ex. B at 14 (Umbrella Agreement, Section IX(G))).8 damages against the United States separate from the Tucker Act itself.” See Todd , 386 F.3d at 1094. An express contract with the Govern ment entails the following elements:

(1) mutuality of intent to contract;

(2) lack of ambiguity in offer and acceptance;

(3) consideration; and

(4) a government representative having actual authority to bi nd United States in
contract. 8

Anderson , 344 F.3d at 1352; see also Massie v. United States , 166 F.3d 1184, 1188 (Fed. Cir. 1999) (“[A]ny agreement can be a c ontract within the meaning of the Tucker Act, provided that it meets the requirements for a contr act with the Government.”).

First, contract formation requires “an obj ective manifestation of voluntary, mutual assent.” Anderson , 344 F.3d at 1353 (citing R ESTATEMENT (S ECOND ) OF C ONTRACTS § 18 (1981)). In other words, there must be a “clear indication of intent to contract and the other requirements for concluding that a contract was formed.” D & N Bank , 331 F.3d at 1378.

A good example is found in D & N Bank , where a Bank Board Resolution was deemed not to be a product of negotiati on between the two parties, but only a memorialization of the Board’s approval of a merger between D & N Bank and another thrift bank. See 331 F.3d at 1379; see also Anderson , 344 F.3d at 1357 (same). In this case, unlike D & N Bank , the Final Agreement indicates a clear in tent by the Army Corps to c ontract, and imposes mutual obligations on both parties. Compl. Ex. B at 11 (Umbrella Agreement) (“Bank Sponsor shall be responsible for maintaining the Bank in perpet uity[.]”); Compl. Ex. B at 13 (Umbrella Agreement) (“The terms and conditions of this Agreement shall be binding upon, and inure to the benefit of the parties hereto[.]”); Compl. Ex. B at 13 (Umbrella Agreement) (“[T]he Corps Permit Officer will specify any contemplated multiplier [for assigning credit liabilities to projects] and a rationale for its application.”).

The inquiry into whether there is a mutual inte nt to contract overlaps, in part, with the requirement that there be a lack of ambiguity in offer and acceptance, since a plaintiff must offer objective evidence of “the existence of an offer and a reciprocal acceptance . . . [t]o satisfy its burden to prove . . . mutuality of intent.” Anderson , 344 F.3d at 1353; see also R ESTATEMENT (S ECOND ) OF C ONTRACTS § 22(1) (“The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties.”). In this case, the Final Agreement contains definite terms and recites the obligations contained and acceptance manifested by the signatu res from a Bank representative, a District Engineer for the Army Corps, and a representa tive from USFWS. The documents and exhibits that together comprise the Final Agreement we re reviewed and signedby the parties over the course of several years, suggesting a negotiate d arms-length process. This ongoing process,

8 The Government has not argued that the Army Corps did not have authority to bind the United States in contract.9 culminating in the parties signing three separate agreements, represents “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Anderson , 344 F.3d at 1353 (quoting R ESTATEMENT (S ECOND ) OF C ONTRACTS § 24).

As consideration for the Bank’s promise to restore wetlands subject to the Final Agreement, the Army Corps promised to issue the Bank credits, each now allegedly valued at $10,000 (Compl. ¶ 51). 9 See, e.g.

, Smith v. Mountjoy , 280 Va. 46, 53, 694 S.E.2d 598, 602 (2010) (“Consideration is, in effect , the price bargained for and paid for a promise. It may be in the form of a benefit to the party promising or a detriment to the party to whom the promise is made.” (quoting Brewer v. First Nat’l Bank of Danville , 202 Va. 807, 815 (1961) ). In addition, under Virginia law, the Bank’s substantial re mediation efforts investments are sufficient consideration for the Army Corps’ promise to award marketable credits. Id. Therefore, the Government is mistaken in minimizing the subs tantial investment that the Bank has undertaken (Gov’t Reply 5–7), including the set- aside of a large number of acres of land, restoration of the land, and promises of long-term maintenance of that land. See, e.g. , Compl. Ex. B at 11 (LongTerm Maintenance); Compl. Ex. C (Site-Specific Plan); see also Son Broadcasting , 52 Fed. Cl. at 824 (treating a permit and site pl an to build a transmission towe r as a contract, because of the plaintiff’s “substantial” investme nt in site development).

Therefore, under the Final Agreement, the Army Corps agreed to enter into a contract with private parties to accomplish wetland restorat ion in exchange for issu ing credits that could be sold “to third parties as compensation mitig ation for unavoidable impacts to wetlands that were permitted pursuant to Section 404 [33 U.S.C. § 1344] of the [Clean Water Act].” Compl. ¶ 25; see also Compl. Ex. B at 1 (“The purpose of this Agreement is to establish the general provisions for . . . a compensatory wetland bank . . . . to compensate fo r unavoidable impacts to wetlands in advance of development actions[.]”); 60 F ED

. R EG . at 58,608 (“The overall goal of a mitigation bank is to provide economically efficient and flexible mitigation opportunities[.]”).

Contrary to the Government’s assertion, the Final Agreement is not a “regulatory instrument.” Gov’t Mot. 7. To distinguish a re gulatory proclamation from a contract, the court may examine “resolutions, forbearance letters, a ssistance agreements, and supervisory action agreements to see if they consist of only regula tory proclamations, or if they include additional language, which clearly manifests the gove rnment’s intention to contract.” First Fed. Lincoln

9 As discussed supra , the Bank committed to restore agricultural and forested areas to wetlands and preserve existing we tlands, as well as provide fi nancial assurance for the Bank’s performance under the Final Agreement. Compl. ¶ 23 & Ex. B at 5. In exchange, the Army Corps would issue the Bank one wetland credit per 1.00 acre of re stored cropland, 0.50 acres of restored previously-drained forest; or 7.5 acres of existing wetlands. Compl. Ex D.

Ironically, the Final Agreement requires more from the Bank than of the Army Corps, but once consideration is established, however, c ourts do not weigh the adequacy of that consideration. See W ILLISTON ON C ONTRACTS § 7.21 (Adequacy of consideration) (“[S]o long as the requirement of a bargained-for benefit or detriment is satisfied, the fact that the relative value or worth of the exchange is unequal is irrelevant[.]”)10 Bank v. United States , 60 Fed. Cl. 501, 503–04 (2004); cf. Anderson , 344 F.3d at 1358 (citing First Commerce Corp. v. United States , 335 F.3d 1373, 1378 (Fed. Cir. 2003). The fact that “no landowner can develop a mitigation bank absent [A rmy] Corps approval,” does not preclude the Army Corps from contracting with a private party. 10 Hearts Bluff Game Ranch , 669 F.3d at 1331.

Nor is the Government correct that the absence of words such as “money” or “damage” preclude the remedy of money damages. “[ I]n a contract case, the money-mandating requirement for Tucker Act jurisdiction normally is satisfied by the presumption that money damages are available for breach of contract , with no further inquiry being necessary.” Holmes

, 657 F.3d at 1314. The Government has cited no e xplicit language in the Final Agreement that overcomes the presumption of money damages, b ecause none exists. To the contrary, explicit language in the Final Agreement and in communications between the parties manifests the Army Corps’ intention to enter into a cont ractual relationship with the Bank.

For these reasons, the court has determined that it has jurisdicti on to adjudicate the alleged breach of contract claims in the April 15, 2013 Complaint.

2. Whether The April 15, 2013 Complaint Pled A Breach Of Contract Claim.

a. The Government’s Argument.

The Government also argues that the Bank did not sufficiently plead a breach of contract claim, requiring the court to dismiss the Apri l 15, 2013 Complaint, pursuant RCFC 12(b)(6). Gov’t Mot. 10–11. First, the Bank did not allege a contractual duty by the Army Corps to adjust credit composition. Gov’t Mot. 11. The relevant provision of the Final Agreement states: “the credit composition . . . may be adjusted to refl ect the maturation of the restored or created wetlands.” Gov’t Mot. 12 (quoting Comp l. Ex. B at 11 (Umbrella Agreement); see also Gov’t Mot. 12 (citing Nat’l By-Prods., Inc. v. United States , 405 F.2d 1256, 1264 (Ct. Cl. 1969) (“[F]or a government representation . . . to be binding as a contractual ob ligation, it must have been in the form of an undertaking rather than a mere pred iction or statement of opinion or intention.”)).

Second, the Government’s “continued willingness to discuss an adjustment of the credit composition” cannot be construed as a breach of dut y. Gov’t Mot. 14 (citing Compl. Ex. F).

Third, the Bank has claimed speculative dama ges based on a “fair market value” of $10,000 per credit. Gov’t Mot. 15 (citing Wells Fargo Bank, N.A. v. United States , 88 F.3d 1012, 1023 (Fed. Cir. 1996) (declini ng to award speculative damages). The Bank’s valuation,

10 In Hearts Bluff Game Ranch , the United States Court of Ap peals for the Federal Circuit held that the Army Corps’ refusal to allow th e plaintiff to operate a mitigation bank was not a taking because the Army Corps’ “discretionary denial of access into the Corps program cannot be a cognizable property interest.” 669 F.3d at 1331. Th erefore, the Governme nt’s assertion that Hearts Bluff Game Ranch prohibits the Army Corps from c ontracting with private parties to operate a mitigation bank is without merit. Gov’t Resp. 7.11 however, “makes the implausible assumption that [t he Bank] could have sold those credits on top of the cache of credits it hasn’t sold.” Gov’t Mot. 15 (citing Compl. ¶ 51).

b. The Plaintiff’s Response.

The Bank responds that, because the Army Corps breached its contractual duty to adjust credit composition, the suggestion that “neg otiations” are ongoing is not accurate, and the damages claimed are the foreseeable loss of profits. Pl. Resp. 20, 22. The only reasonable interpretation of the Final Agreement at issue, i.e. , “the credit composition will be reevaluated and may be adjusted to reflect maturation” (Comp. Ex. B at 11), is that “the provision obligates the [Army] Corps to adjust the credit compositi on, if the required reevaluation reflects a different outcome than the breakdown contemplated by the parties prior to construction of the wetlands bank.” Pl. Resp. 17 (emphasis in or iginal). To interpret that text of the Final Agreement as an option within the discretion of the Army Corps “flies in the face of th e entire purpose of the agreement and . . . renders the phrase m eaningless surplusage.” Pl. Resp. 17; see also id. at 16 (citing Nat’l By-Prods. , 405 F.2d 1256 (requiring th at the text of a cont ract be construed in context); United Int’l Investigative Servs. v. United States , 109 F.3d 734, 737 (Fed. Cir. 1997) (holding that a contract must be interpreted, “as a whole and in a manner which gives reasonable meaning to all its parts” (internal quotations omitted)). Moreover, applicable federal regulations require that the wetland mitigation banks’ credits reflect actual site conditions. Pl. Resp. 18 (citing 33 C.F.R. § 332.8(o)(3) (“The number of [wetland mitigation bank] credits must reflect the difference between pre- and post-compensatory mitigation project site conditions.”); 60 F ED

. R EG . at 58,612 (“The number of available credits in a mitigation bank may need to be adjusted to reflect actual conditions.”). In addition, as a matter of law, Virginia courts have construed “may” as a mandatory term. Pl. Resp. 18–20 (citing Martin v. Howard , 273 Va. 722, 727 (2007) (construing “may” as mandatory in a statute allowing for exhumation of a body for genetic testing)).

Second, the August 24, 2012 email does not ev idence ongoing negotiations, but instead the Army Corps’ attempt to impose additiona l requirements on the Bank not included in the Final Agreement. Pl. Resp. 20–21.

Third, the amount of damages incurred by the Bank has been addressed in Neely v. United States , 285 F.2d 438, 443 (Ct. Cl. 1961), wherein the United States Court of Claims held that lost profits were compensable damages. See Neely , 285 F.2d at 443 (explaining that, in certain circumstances, “loss of [sic] anticipated profits . . . . is a recognized measure of damages”). In addition, Wells Fargo Bank , cited by the Government, supports the Banks’ position that the loss of profits tiedto the loss of credits “were foreseeable at the time the parties entered into the Agreement.” Pl. Resp. 21–22 (citing Wells Fargo Bank , 88 F.3d at 1023).

c. The Court’s Resolution.

For a claim to survive a moti on to dismiss under RCFC 12(b)(6 ), it must be supported by more than merely speculative factual allegations, but the court also must make all reasonable inferences in favor of the plaintiff. See Twombly , 550 U.S. at 555. Interp retation of a contract starts with the plain language, interpreted in li ght of the context, and giving “reasonable meaning12 to all its parts.” United Int’l Investigative Servs. , 109 F.3d at 737 (quoting Granite Constr. Co. v. United States , 962 F.2d 998, 1003 (Fed. Cir. 1992)).

In this case, the plain language of the Fi nal Agreement supports the Bank’s allegation (Compl. ¶ 50) that the Army Corps had a duty to fairly consider adjustments to the credit compensation. Compl. Ex. B at 11 (Umbrella Agreement) (“[A]t the end of the 5-year monitoring period . . . , the credit composition will be reevaluated and may be adjusted to reflect maturation of the restored or created wetlands.”). The April 15, 2013 Complaint also alleges that the Army Corps acknowledged that the forestedwetlands at issue matured. Compl. ¶¶ 45–46. Therefore, it is reasonable to infer that the Army Corps br eached the Final Agreement by not fairly and reasonably considering an adjustment to the credits at that time. Of course, the underlying factual issue of whether the Army Corp acted reasonably cannot be decided on a motion to dismiss. See, e.g.

, TrinCo Inv. Co v. United States , 722 F.3d 1375, 1380 (Fed. Cir. 2013) (“To avoid dismissal under [RCFC] 12(b)(6), a party need only plead . . . with facts sufficient to nudge ‘claims across the line fr om conceivable to plausible.’” (quoting Twombly

, 550 U.S. at 570)). Although the word “may” appears to gi ve the Army Corps’ discretion in adjusting the credit composition, that does not relieve the Army Corps from its obligation to issue credits, and the text of the Final Agreem ent does not state an “opinion or intention.” Cf. Nat’l By-Prods. , 405 F.2d at 1264 (“[F]or a government repr esentation . . . to be binding as a contractual obligation, it must ha ve been in the form of an undertaking rather than a mere prediction or statement of opinion or intention.”).

Therefore, whether the Army Corps denied th e Bank’s request for a credit adjustment is a factual inquiry that cannot be decided on a motion to dismiss. See Bradley v. Chiron Corp. , 136 F.3d 1317, 1321 (Fed. Cir. 1998) (When ruling on a motion to dismiss under Rule 12(b)(6), “factual statements in the complaint are accepted as true . . . . [and dismissal] is proper only when, on the complainant’s version of the facts, the premises of a cognizable claim have not been stated.”). The Complaint alleges that the August 24, 2012 email contains that denial. Compl. ¶ 49. The August 24, 2012 email states th at the Army Corps doe s not support “issuing additional credit to the bank merely because the pr oject . . . is an ecological success.” Compl. Ex. E at 1. To the exte nt that the Army Corps suggested other ways in which the Bank could generate additional credits, that is beside the point. Compl. Ex. E at 1 (“Additional compensatory mitigation credits could be generated from this site through additional real estate protection.”). The August 24, 2012 email eviden ces that the Army Corp s denied the Bank’s request to issue credits, and, therefore, is su fficient to overcome the Government’s Motion To Dismiss.

Finally, although the Government argues that $10,000 per cred it of damages (Compl. ¶ 51) is speculative, this is not grounds for dismissal.13 IV. CONCLUSION.

For these reasons, the Government’s July 24, 2013 Motion To Dismiss is denied. The court will contact the parties to convene a status conference to discuss discovery and a trial date.

IT IS SO ORDERED. s/ Susan G. Braden SUSAN G. BRADEN Judge