In the United States Court of Federal Claims

No. 12-646 L

Filed: May 29, 2013

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VANE MINERALS (US), LLC, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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John C. Lacy, DeConcini McDonald Yetwin & Lacy, P.C., Tucson, Arizona, Counsel for 

Plaintiff.

Gregory D. Page, United States Department of Justice, Environment & Natural Resources 

Division, Washington, D.C., Counsel for the Government. 

MEMORANDUM OPINION AND FINAL ORDER

Braden, Judge. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.1

VANE Minerals (US), LLC (“Plaintiff”), is a Delaware limited liability company that has 

title to 678 lode mining claims on an area of federal land, subject to the Northern Arizona 

Withdrawal (“NAW”), a United States Department of the Interior action that, effective January 

21, 2012, withdrew more than a million acres “from location and entry under the Mining Law of 

1872, 30 U.S.C. §§ 22-54[.]” Withdrawal of Public and National Forest System Lands in the 

Grand Canyon Watershed, Public Land Order No. 7787, 77 FED. REG. 2563-01 (Jan. 9, 2012); 

Compl. at ¶¶ 5, 10, 11.

On August 15, 2012, the United States District Court for the District of Arizona granted 

Plaintiff’s June 4, 2012 Motion To Intervene in National Mining Ass’n v. Salazar, No. 3:12-cv8038-DGC. Civil Minutes, Nat’l Mining Ass’n v. Salazar, No. 3:12-cv-8038 (D. Ariz. Aug. 15, 

2012), ECF No. 74. On August 20, 2012, the United States District Court for the District of 

Arizona also granted Plaintiff’s June 27, 2012 Motion To Intervene in Northwest Mining 

Ass’n v. Salazar, No. 3:12-cv-8042 and consolidated the case together with three other cases:

 1 The facts discussed herein were derived from the September 27, 2012 Complaint 

(“Compl.”).

28 U.S.C. § 1500 (2006);

RCFC 12(b)(1) (motion to dismiss for 

lack of subject matter jurisdiction).
2

National Mining Ass’n; Yount v. Salazar, No. 3:11-cv-8171 (D. Ariz.); and Quaterra Alaska 

Inc. v. Salazar, No. 3:12-cv-8075 (D. Ariz). Consolidation Order, Nw Mining Ass’n v. Salazar, 

No. 3:12-cv-8042 (D. Ariz. Aug. 20, 2012), ECF. No. 61. Both of Plaintiff’s Complaints-InIntervention allege that the NAW violated the National Environmental Policy Act (“NEPA”), the 

Federal Land Policy and Management Act (“FLPMA”), the Arizona Wilderness Act of 1984

(“AWA”), and regulations adopted thereunder. Complaint-In-Intervention, Nw Mining Ass’n v. 

Salazar, No. 3:12-cv-8042 (D. Ariz. June 27, 2012), ECF. No. 35-1 at ¶¶ 1, 112-46 (citing 42 

U.S.C. § 4331 (2006); 43 U.S.C. §§ 1714(c)(2), 1732(b); Pub. L. No. 98-406, 98 Stat. 1485, § 

301(a)(3) (1984) (codified as amended at 16 U.S.C. §§ 1131-1132)); Complaint-In-Intervention, 

Nat’l Mining Ass’n v. Salazar, No. 3:12-cv-8038 (D. Ariz. June 4, 2012), ECF. No. 19-1 at ¶¶ 1, 

112-46 (same)).

On September 27, 2012, Plaintiff filed a Complaint in the United States Court of Federal 

Claims, also alleging the NAW violated NEPA, FLPMA, AWA, and regulations adopted 

thereunder. Compl. at ¶¶ 1-56. In addition, the September 27, 2012 Complaint requested that 

the court award Plaintiff damages under two theories, inverse condemnation and/or estoppel. 

Compl. at ¶¶ 57-74.

On November 26, 2012, the Government filed a Motion To Dismiss (“Gov’t Mot.”),

pursuant to RCFC 12(b)(1).

On December 26, 2012, Plaintiff filed a Notice dismissing without prejudice the June 4, 

2012 and June 27, 2012 Complaints-In-Intervention in the United States District Court for the 

District of Arizona. See Yount v. Salazar, No. 3:11-cv-8171 (D. Ariz. Dec. 26, 2012), ECF No. 

86.

On January 2, 2013, Plaintiff filed a Response (“Pl. Resp.”) to the Government’s 

November 26, 2012 Motion To Dismiss. On January 22, 2013, the Government filed a Reply.

II. DISCUSSION.

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

A challenge to the United States Court of Federal Claims’ “general power to adjudicate in 

specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(1) motion[.]” 

Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b) (“Every 

defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is 

required. But a party may assert the following defenses by motion: (1) lack of subject-matter 

jurisdiction[.]”). When considering whether to dismiss an action for lack of subject matter 

jurisdiction, the court is “obligated to assume all factual allegations of the complaint to be true 

and to draw all reasonable inferences in plaintiff's favor.” Henke, 60 F.3d at 797.

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 jurisdiction [is] put in question . . . [the plaintiff] bears 

the burden of establishing subject matter jurisdiction by a preponderance of the evidence.”).
3

B. Whether 28 U.S.C. § 1500 Divests The United States Court Of Federal 

Claims Of Jurisdiction As A Result Of Plaintiff’s Prior Intervention In Two 

Related United States District Court Actions.

The Government argues that 28 U.S.C. § 1500 divests the court of jurisdiction over

Plaintiff’s claims, because at the time of the filing of the September 27, 2012 Complaint in the 

United States Court of Federal Claims, Plaintiff was a party to two prior related cases in the 

United States District Court for the District of Arizona, arising from the same set of operative 

facts. Gov’t Mot. at 13-16.

Plaintiff concedes that it “cannot prosecute actions in two different courts if the actions 

arise from the same operative facts, even if (as here) [Plaintiff] is seeking different remedies 

from each court and the remedies sought in one court are not available in the other court.” Pl. 

Resp. at 8. But, Plaintiff asserts that its December 26, 2012 dismissal of pending United States

District Court claims in two other actions has removed the jurisdictional impediment. Pl. Resp. 

at 9 (citing, without explanation, Young v. United States, 60 Fed. Cl. 418 (2004) and Glick v. 

United States, 25 Cl. Ct. 435 (1992)); see also Yount v. Salazar, No. 3:11-cv-8171 (D. Ariz. Dec. 

26, 2012), ECF No. 86 (notice of dismissal).

Section 1500 states:

The United States Court of Federal Claims shall not have jurisdiction of any claim 

for or in respect to which the plaintiff or his assignee has pending in any other 

court any suit or process against the United States or any person who, at the time 

when the cause of action alleged in such suit or process arose, was, in respect 

thereto, acting or professing to act, directly or indirectly under the authority of the 

United States.

28 U.S.C. § 1500 (2006).

For purposes of 28 U.S.C. § 1500, an action’s pendency is determined at the time of the 

initial filing. See Keene Corp. v. United States, 508 U.S. 200, 209 (1993) (stating that section 

1500 “bar[s] jurisdiction over the claim of a plaintiff who, upon filing, has an action pending in 

any other court ‘for or in respect to’ the same claim”); see also Cent. Pines Land Co. v. United 

States, 697 F.3d 1360, 1364 (Fed. Cir. 2012) (“[W]e look to the facts as they exist when a 

plaintiff filed his Claims Court complaint to determine if § 1500 applies.”); Harbuck v. United 

States, 378 F.3d 1324, 1328 (Fed. Cir. 2004) (“The question of whether another claim is pending 

for purposes of § 1500 is determined at the time at which the suit in the [United States] Court of 

Federal Claims is filed, not the time at which the Government moves to dismiss the action.”

(internal quotation marks omitted)). This precedent abrogated the earlier rule cited in Glick, and 

relied upon by Plaintiff, that dismissal of a United States District Court claim cures a 

jurisdictional defect, if it occurs before the United States Court of Federal Claims “entertains and 

acts on a Section 1500 motion to dismiss[.]” Glick, 25 Cl. Ct. at 438. In this case, because 

Plaintiff dismissed its United States District Court claims after filing the September 27, 2012 

Complaint in the United States Court of Federal Claims, the dismissals occurred too late to cure 

the jurisdictional impediment under section 1500.
4

Plaintiff’s reliance on Young is misplaced. In that case, the dismissal of the United States 

District Court action against the Government occurred before the filing of the complaint in the 

United States Court of Federal Claims. See Young, 60 Fed. Cl. at 423. After the plaintiffs 

appealed the United States District Court ruling, they filed a second complaint in the United 

States Court of Federal Claims. Thereafter, the first complaint in the United States Court of 

Federal Claims was dismissed. Id. Therefore, the United States Court of Federal Claims 

determined that section 1500 did not deprive it of jurisdiction to adjudicate the claims in the 

second complaint, even though the United States District Court’s ruling was under appeal when

that second United States Court of Federal Claims complaint was filed. The court determined 

that it could construe the second complaint as an “amended” complaint, since an amended 

complaint does not affect the date of initial filing. Id. at 428. In contrast, the complaint in this 

case was filed after Plaintiff filed two actions in the United States District Court for the District 

of Arizona.

In United States v. Tohono O’Odham Nation, 131 S. Ct. 1723 (2011), the United States 

Supreme Court held that: “Two suits are for or in respect to the same claim, precluding 

jurisdiction in the [United States Court of Federal Claims], if they are based on substantially the 

same operative facts, regardless of the relief sought in each suit.” Id. at 1731. It is uncontested 

that the September 27, 2012 Complaint was based on substantially the same operative facts as 

Plaintiff’s actions in the United States District Court for the District of Arizona. Pl. Resp. at 8-9; 

Yount v. Salazar, No. 3:11-cv-8171 (D. Ariz. Dec. 26, 2012), ECF No. 86 (stating that “VANE 

Minerals’ claim in the United States Court of Federal Claims arises from the same operative 

facts as the claims presented in this action”). As such, both the litigation in the United States 

District Court for the District of Arizona and the litigation in the case at bar allege that the 

Government improperly granted the NAW, in violation of NEPA, FLPMA, AWA, and 

regulations adopted thereunder.

For these reasons, the court does not have jurisdiction to adjudicate the claims alleged in 

the September 27, 2012 Complaint.

III. CONCLUSION.

For these reasons, the Government’s November 26, 2012 Motion To Dismiss is granted. 

Accordingly, the Clerk is directed to dismiss the September 27, 2012 Complaint.

IT IS SO ORDERED.

s/ Susan G. Braden 

SUSAN G. BRADEN

Judge