United States Court of Appeals for the Federal Circuit 

04-5092 

DONALD MODEN and BARBARA MODEN, 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Ted L. McBride, Beardsley, Jensen & Von Wald, Prof. L.L.C., of Rapid City, 

South Dakota, argued for plaintiffs-appellants. 

Katherine J. Barton, Attorney, Appellate Section, Environment and Natural 

Resources Division, United States Department of Justice, of Washington, DC, argued 

for defendant-appellee. With her on the brief were Thomas L. Sansonetti, Assistant 

Attorney General, Mark Haag, Attorney, and, William Shapiro, Attorney, General 

Litigation Section. 

Nancie G. Marzulla, Defenders Of Property Rights, of Washington, DC, for 

amicus curiae Defenders Of Property Rights. 

Appealed from: United States Court of Federal Claims 

Judge Lynn J. Bush 
United States Court of Appeals for the Federal Circuit 

04-5092 

DONALD MODEN, BARBARA MODEN, 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

 __________________________ 

DECIDED: April 15, 2005 

 __________________________ 

Before MICHEL, Chief Judge, LOURIE, and PROST, Circuit Judges. 

PROST, Circuit Judge. 

 Donald and Barbara Moden appeal the dismissal of their case by the United 

States Court of Federal Claims for lack of subject matter jurisdiction. See Moden v. 

United States, 60 Fed. Cl. 275 (2004). For the reasons stated herein, we treat the 

dismissal as a grant of summary judgment. Because the Modens fail to raise a genuine 

issue of material fact with respect to at least one element of their claim, we affirm the 

grant of summary judgment. 

BACKGROUND 

A. Factual Background 

The Modens own a ranch located about five miles east of Ellsworth Air Force 

Base (EAFB) and near the town of Box Elder, South Dakota. Since being activated in 
1942, EAFB has served in various capacities as a support, training, maintenance, and 

testing facility for the United States Air Force. In particular, during the 1940s and 1950s 

routine aircraft maintenance activities at EAFB involved using trichloroethylene (TCE) to 

degrease airplane parts. 

Since 1985, various governmental entities have commissioned studies to 

investigate the release of hazardous substances at EAFB as well as to develop, 

implement, and monitor appropriate responses to the release of those substances. In 

1998 one of the commissioned studies identified that groundwater underneath the 

Modens’ ranch was contaminated with TCE, a possible carcinogen. Researchers, 

including government experts, now believe that if contaminated groundwater migrated 

to the Modens’ ranch from EAFB, the contamination may have been caused by the 

routine aircraft maintenance activities involving chemical solvents including TCE. While 

unable to identify with certainty the actual source of the contamination, government 

reports focus on two sites within EAFB known as Pride Hanger and Building 8115. 

During the 1940s and 1950s, maintenance workers at Pride Hanger and Building 

8115 used a mixture that included TCE to remove grease from airplane parts. At Pride 

Hanger, the TCE was stored in a large underground storage tank. After mixing the TCE 

with oil, maintenance workers would apply the mixture to the airplane parts before 

washing the mixture and grease off of the airplane parts using pressurized water. An 

industrial drainage system was used to collect the mixture, water, and grease for 

transport to an industrial water treatment plant. 

The parties agree that the facilities and practices at EAFB met or exceeded state 

and federal requirements for storage and use of hazardous substances. They also 

04-5092 2
agree that there is no evidence that TCE was intentionally or even accidentally dumped 

into the groundwater by anyone at EAFB. Nevertheless, they agree that TCE is 

currently present in the groundwater under the Modens’ ranch and that projections 

indicate that the duration of the contamination may be as long as fifty years. 

B. Procedural Background 

On May 15, 2001, the Modens filed suit against the United States in the Court of 

Federal Claims, alleging that their property was contaminated by TCE as the result of 

government actions amounting to a taking under the Fifth Amendment to the United 

States Constitution. They specifically argued that the government actions constituted 

an inverse condemnation of their property. 

The United States moved for judgment on the pleadings or, in the alternative, for 

summary judgment on the grounds that, inter alia, the Modens failed to state a claim 

upon which relief could be granted and that the Court of Federal Claims lacked 

jurisdiction because the Modens’ claim sounds in tort. After the Court of Federal Claims 

permitted some discovery, the United States renewed its motion. 

On April 9, 2004, the Court of Federal Claims granted the motion and dismissed 

the complaint for lack of subject matter jurisdiction. The Court of Federal Claims first 

noted that, while it is authorized to exercise jurisdiction over takings claims, it does not 

have jurisdiction over claims that sound in tort. 60 Fed. Cl. at 279. Then, it cited Ridge 

Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003), for the two-pronged test 

“that must be utilized in distinguishing a taking from a tort in inverse condemnation 

cases.” 60 Fed. Cl. at 282. “[F]irst, a property loss compensable as a taking only 

results when the government intends to invade a protected property interest or the 

04-5092 3
asserted invasion is the direct, natural, or probable result of an authorized activity and 

not the incidental or consequential injury inflicted by the action . . . .” Ridge Line, 346 

F.3d at 1355. Second, “to constitute a taking, an invasion must appropriate a benefit to 

the government at the expense of the property owner, or at least preempt the owner’s 

right to enjoy his property for an extended period of time, rather than merely inflict an 

injury that reduces its value.” Id. at 1356. 

The Court of Federal Claims then examined the evidence in this case under the 

identified two-pronged test. Under the first part of the first prong, the Court of Federal 

Claims noted that the Modens did not allege an intentional invasion by the United 

States. 60 Fed. Cl. at 283. Characterizing the second part of the first prong as an 

inquiry into the “foreseeability” of damage, the Court of Federal Claims listed “three 

occurrences [that] would have had to have been foreseeable or predictable by the Air 

Force at the time of its authorized use of the chemical solvents.” Id. at 284-85. First, 

“during the 1940s and 1950s . . . the government would have had to have known that 

TCE was a component of these solvents and was a contaminant.” Id. at 285. Second, 

the Modens “would have to show that it would have been predictable or foreseeable by 

the government that these chemical solvents, containing TCE, would have been 

released into the groundwater.” Id. Third, the Modens “would have to show that the 

government should have foreseen that the contaminant would naturally migrate toward 

plaintiffs’ property.” Id. at 285-86. 

The Court of Federal Claims ultimately concluded that the Modens either did not 

present evidence or did not contradict evidence presented by the United States with 

regard to the first or second occurrence. Instead, the Modens focused on the third 

04-5092 4
occurrence, which, according to the Court of Federal Claims, even if proved, alone 

would be insufficient for jurisdiction to be proper. Thus, because the Court of Federal 

Claims found that the Modens failed to satisfy Ridge Line’s first prong, it found subject 

matter jurisdiction to be lacking.1

The Court of Federal Claims entered a final judgment on April 14, 2004. The 

Modens timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

 1 The Court of Federal Claims also “decline[d] to adopt the viewpoint set 

forth in dictum” in Clark v. United States, 19 Cl. Ct. 220 (1990), that “the same operative 

facts may give rise to both a taking and a tort.” 60 Fed. Cl. at 288. Regardless of 

whether this viewpoint was set forth in dictum in Clark, several of our cases also 

indicate that the same operative facts may give rise to both a taking and a tort. See

Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1363 (Fed. Cir. 1998); 

Rith Energy, Inc. v. United States, 247 F.3d 1355, 1365 (Fed. Cir. 2001); El-Shifa 

Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1353 (Fed. Cir. 2004). Moreover, 

the Supreme Court has indicated that by denying just compensation a governmental 

action may be both unconstitutional as well as tortious: 

The city argues that because the Constitution allows the 

government to take property for public use, a taking for that 

purpose cannot be tortious or unlawful. We reject this 

conclusion. Although the government acts lawfully when, 

pursuant to proper authorization, it takes property and 

provides just compensation, the government’s action is 

lawful solely because it assumes a duty, imposed by the 

Constitution, to provide just compensation. When the 

government repudiates this duty, either by denying just 

compensation in fact or by refusing to provide procedures 

through which compensation may be sought, it violates the 

Constitution. In those circumstances the government’s 

actions are not only unconstitutional but unlawful and 

tortious as well.

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 717 (1999) 

(citations omitted). Nevertheless, as discussed below, the question before us today is 

whether evidence in the record before us raises a genuine issue of material fact 

sufficient to avoid summary judgment with regard to a takings claim. Whether the 

government’s actions separately give rise to a tort action is irrelevant to our disposition 

of this case. 

04-5092 5
DISCUSSION 

A. Jurisdiction 

The Court of Federal Claims dismissed the present case for what it deemed a 

lack of subject matter jurisdiction. 60 Fed. Cl. at 291. In doing so, however, the Court 

of Federal Claims addressed the merits of the Modens’ nonfrivolous inverse 

condemnation claim. Thus, the Court of Federal Claims indicated a possible 

misunderstanding of the appropriate role of a trial court in addressing three different 

types of motions: a motion to dismiss a complaint for lack of subject matter jurisdiction; 

a motion to dismiss a complaint for failure to state a claim upon which relief can be 

granted; and a motion for summary judgment on the merits. 

We have attempted to clarify the appropriate inquiries that a court must make in 

response to these types of motions. See, e.g., Spruill v. Merit Sys. Prot. Bd., 978 F.2d 

679, 687-88 (Fed. Cir. 1992). The Court of Federal Claims has interpreted Spruill as 

suggesting that when a defendant disputes the merits of a claim in a motion to dismiss 

for lack of subject matter jurisdiction, jurisdiction should be assumed and the merits of 

the claim should be addressed. See, e.g., Janowsky v. United States, 31 Fed. Cl. 520, 

521 (1994); Morris v. United States, 33 Fed. Cl. 733, 743 (1995). 

In Spruill we concluded that subject matter jurisdiction exists when a petitioner 

asserts a nonfrivolous claim: 

To the extent a successful claim against the government 

requires compliance with all statutory elements of the claim, 

failure of proof of an element of the cause of action means 

the petitioner is not entitled to the relief he seeks. To 

conclude in such a case that the petitioner loses because 

the forum is “without jurisdiction” is to obscure the nature of 

the defect. It would be more accurate to conclude that the 

petitioner has failed to prove the necessary elements of a 

04-5092 6
cause for which relief could be granted. The forum has 

jurisdiction to hear the matter in the first instance—that is, 

subject-matter jurisdiction existed—as long as the petitioner 

asserted nonfrivolous claims. 

978 F.2d at 687-88. Similarly, the Supreme Court has identified that “[d]ismissal for lack 

of subject-matter jurisdiction because of the inadequacy of the federal claim is proper 

only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this 

Court, or otherwise completely devoid of merit as not to involve a federal controversy.’” 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian 

Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)). 

Confusion may have arisen here because jurisdiction in this case is governed by 

the Tucker Act. The Tucker Act grants the United States Court of Federal Claims 

jurisdiction over claims for money damages “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 damages in cases not sounding in tort.” 28 U.S.C. 

§ 1491(a)(1) (2000); United States v. Mitchell, 463 U.S. 206, 216 (1983). Recently we 

noted: 

In Tucker Act jurisprudence [the] neat division between 

jurisdiction and merits has not proved to be so neat. In 

these cases, involving suits against the United States for 

money damages, the question of the court’s jurisdictional 

grant blends with the merits of the claim. This mixture has 

been a source of confusion for litigants and a struggle for the 

courts. 

Fisher v. United States, No. 02-5082, slip op. at 6 (Fed. Cir. 2005). 

However, Fisher addressed how the Court of Federal Claims should determine 

whether the “Constitutional provision, statute, or regulation is one that is money04-5092 7
mandating.” Id. at 9. We concluded that the determination of whether a claim’s source 

is money-mandating “shall be determinative both as to the question of the court’s 

jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a 

money-mandating source on which to base his cause of action.” Id. Here the parties do 

not dispute that the Takings Clause of the Fifth Amendment is money-mandating. Thus, 

to the extent the Modens have a nonfrivolous takings claim founded upon the Fifth 

Amendment, jurisdiction under the Tucker Act is proper. 

The government neither argues that the Modens’ claim is frivolous nor argues 

that it is so insubstantial, implausible, foreclosed by prior decisions, or otherwise 

completely devoid of merit as not to involve a federal controversy. And while at oral 

argument the United States repeatedly refused to concede that jurisdiction is proper in 

this case, it clearly is. 

As discussed above, the United States admits that TCE is currently present in 

the groundwater under the Modens’ ranch and the government’s own experts believe 

that if contaminated groundwater migrated to the Modens’ ranch from EAFB, the 

contamination may have been caused by the routine aircraft maintenance activities 

involving TCE. It is therefore clear, for example, that the Modens’ claim of inverse 

condemnation is not made solely for the purpose of obtaining jurisdiction. See Steel 

Co., 523 U.S. at 89. In short, we have jurisdiction to address the merits of this case, as 

did the Court of Federal Claims, because the Modens’ claim is neither frivolous nor so 

insubstantial, implausible, foreclosed by prior decisions, or otherwise completely devoid 

of merit as not to involve a federal controversy. 

04-5092 8
Although the Court of Federal Claims stated that dismissal was for lack of 

subject-matter jurisdiction, it is clear that the Court of Federal Claims concluded that the 

Modens failed to identify a genuine issue of material fact sufficient to avoid summary 

judgment. See Fed. R. Civ. P. 56(c). Thus, we treat the dismissal as a grant of 

summary judgment. Cf. Banks v. Garrett, 901 F.2d 1084, 1087 (Fed. Cir. 1990). 

B. Inverse Condemnation 

1. Standard of Review 

We review a grant of summary judgment in a takings case de novo. Sheldon v. 

United States, 7 F.3d 1022, 1026 (Fed. Cir. 1993). Summary judgment is only 

appropriate if the record shows that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law. R. of U.S. Ct. 

Fed. Cl. 56(c); Fed. R. Civ. P. 56(c). In reviewing the record, we must draw all 

justifiable inferences in favor of the party opposing summary judgment. Turner v. 

United States, 901 F.2d 1093, 1095 (Fed. Cir. 1990). Furthermore, due to the factintensive nature of takings cases, summary judgment should not be granted 

precipitously. Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed. Cir. 

1983). 

2. Analysis 

Inverse condemnation is a “shorthand description of the manner in which a 

landowner recovers just compensation for a taking of his property when condemnation 

proceedings have not been instituted.” United States v. Clarke, 445 U.S. 253, 257 

(1980). It is a cause of action against the government to recover the value of property 

taken by the government without formal exercise of the power of eminent domain. Id.

04-5092 9
In Ridge Line we identified a two-part analysis that a claim for inverse 

condemnation invokes. An inverse-condemnation plaintiff first must show that treatment 

under takings law is appropriate. 346 F.3d at 1355. To do so, it must clear two hurdles. 

First, it must show either that the government intended to invade a protected property 

interest or that the asserted invasion is the direct, natural, or probable result of an 

authorized activity and not the incidental or consequential injury inflicted by the activity. 

Id. Second, it must show that the invasion appropriated a benefit to the government at 

the expense of the property owner, at least by preempting the property owner’s right to 

enjoy its property for an extended period of time, rather than merely by inflicting an 

injury that reduces the property’s value. Id. at 1356. If treatment under takings law is 

appropriate, the inverse-condemnation plaintiff must then “show that it possessed a 

protectable property interest in what it alleges the government has taken.” Id. at 1355. 

We first address whether the Modens have identified a genuine issue of material 

fact with regard to whether treatment under takings law is appropriate. In this regard, 

the Modens do not attempt to show that the government actually intended to invade a 

protected property interest. Furthermore, the government concedes that the use of TCE 

on EAFB was authorized. Thus, the first question presented on the merits is whether 

the evidence presents a genuine issue of material fact with regard to whether the 

contamination of the Modens’ ranch with TCE was the direct, natural, or probable result 

of the authorized use of TCE on EAFB and not the incidental or consequential injury 

inflicted by that action. 

As a preliminary matter, the parties interpret the direct, natural, or probable result 

standard differently. The government contends that the resulting injury must be 

04-5092 10
foreseeable from the authorized government act, whereas the Modens and amicus

curiae, Defenders of Property Rights, contend that the authorized government act need 

only be the “cause-in-fact” of the resulting injury. Simplified somewhat, the 

government’s interpretation requires that the injury was the likely result of the act, 

whereas the Modens’ interpretation requires only that the act was the likely cause of the 

injury. The government’s interpretation finds support in the language of the standard, 

which refers to a “direct, natural, or probable result,” not a direct, natural, or probable 

cause. The government’s interpretation also finds support in our case law. In Ridge 

Line, we stated that the court must determine whether the alleged injury was the 

“predictable result of the government action.” Id. at 1356. This Ridge Line

interpretation itself finds support in a long line of controlling precedent. See, e.g., John 

Horstmann Co. v. United States, 257 U.S. 138, 146 (1921); Sanguinetti v. United 

States, 264 U.S. 146, 149-50 (1924); Eyherabide v. United States, 345 F.2d 565, 570 

(Ct. Cl. 1965); Barnes v. United States, 538 F.2d 865, 872 (Ct. Cl. 1976); Pete v. United 

States, 531 F.2d 1018, 1035 (Ct. Cl. 1976). Thus, we conclude that, here, the Modens 

must point to some evidence presenting a genuine issue of material fact with regard to 

whether the contamination of the Modens’ ranch with TCE was the foreseeable or 

predictable result of the authorized use of TCE on EAFB.2

 2 Recently, we summarized the relevant aspect of Ridge Line as requiring 

that “a property owner must prove that the asserted government invasion of property 

interests allegedly effecting a taking ‘was the predictable result of the government 

action,’ either because it was ‘the direct or necessary result’ of the act or because it was 

‘within the contemplation of or reasonably to be anticipated by the government.’” 

04-5092 11
This conclusion does not mean that issues surrounding causation are irrelevant. 

On the contrary, causation must be shown. See Pashley v. United States, 156 F. Supp. 

737, 738-39 (Ct. Cl. 1957). However, proof of causation, while necessary, is not 

sufficient for liability in an inverse condemnation case. See John Horstmann Co., 257 

U.S. at 145-46. In addition to causation, an inverse condemnation plaintiff must prove 

that the government should have predicted or foreseen the resulting injury. 

The Modens interpret several cases, including Cotton Land Co. v. United States, 

75 F. Supp. 232 (Ct. Cl. 1948), as explicitly rejecting the foreseeability requirement. 

However, we, along with our predecessor court, have a different view of Cotton Land 

Co.: 

Plaintiffs point to Cotton Land Co. v. United States, which 

involved the eventual flooding of plaintiff’s land through 

erection of a dam. Since the flooding did not occur directly 

from erection of the dam, but rather through a chain of 

events occurring in a natural order, but originally set in 

motion by the erection of the dam, the Government 

defended on the theory that erection of the dam was too 

remote a cause on which to base liability. The Court 

concluded that there has been a fifth amendment taking. We 

rejected the ‘remoteness of cause’ defense by pointing out 

that the flooding of the land was foreseeable. We looked to 

the law of torts on the remoteness issue, and found no 

intervening cause breaking the chain of causation. The Court 

concluded that the flooding was the ‘actual and natural 

consequence of the Government’s act.’ 

 

Vaizburd v. United States, 384 F.3d 1278, 1282-83 (Fed. Cir. 2004) (quoting Ridge 

Line, 346 F.3d at 1356) (citing Sanguinetti, 264 U.S. at 150; John Horstmann Co., 257 

U.S. at 146; Barnes, 538 F.2d at 871; Eyherabide, 345 F.2d at 570; Columbia Basin

Orchard v. United States, 132 F. Supp. 707, 709 (Ct. Cl. 1955); Cotton Land Co. v. 

United States, 75 F. Supp. 232, 233-34 (Ct. Cl. 1948)). 

04-5092 12
Avery v. United States, 330 F.2d 640, 644-45 (Ct. Cl. 1964) (emphasis added) (citation 

omitted). In other words, injury may not be foreseeable if an intervening cause breaks 

the chain of causation. 

Turning to the evidence in the record of this case, as discussed above, the Court 

of Federal Claims identified three antecedent “occurrences” that it believed would have 

had to have been foreseeable or predictable at the time TCE was used on EAFB in 

order to conclude that contamination of the Modens’ ranch with TCE was the direct, 

natural, or probable result of the use of TCE on EAFB. 60 Fed. Cl. at 284-85. Because 

these three antecedent factual questions provide a useful tool for organizing our inquiry 

and the Modens do not argue that they are improper predicates to the ultimate issue of 

the foreseeability of the contamination in this case, we adopt them with slight 

modifications. The Modens must point to evidence sufficient to identify a genuine issue 

of material fact that the government should have foreseen (1) that the chemical solvents 

included a contaminant;3

 (2) that the chemical solvents would be released into the 

groundwater; and (3) that the contaminant would naturally migrate to the Modens’ 

ranch. 

The Modens argue that the third factual question, migration, was the only debate 

between the parties and that, therefore, we should assume that the evidence supports 

holding a trial regarding the first two factual questions. As evidence that the first two 

questions were not in dispute, the Modens point out that the government’s proposed 

 3 The Court of Federal Claims looked to determine whether the government 

knew that TCE was a component of the chemical solvents and was a contaminant. 

That is too strict a requirement since it is subjective and requires specific knowledge 

regarding TCE. As the government concedes, foreseeability is an objective standard. 

Subjective foresight of injury is not required. See Cotton Land Co., 75 F. Supp. at 235. 

04-5092 13
findings of uncontroverted fact make no mention of the state of the knowledge regarding 

TCE and its toxicity at any point in time. This argument misses the point. The burden is 

on the Modens to present evidence sufficient to create a genuine issue of material fact. 

While pointing to an admission by the government that it knew of TCE and its harmful 

characteristics would probably satisfy their burden with regard to the dangerousness of 

the chemical solvents, pointing out that the government did not admit these facts does 

not. Moreover, if the issue of migration really was the only debate between the parties 

then the proposed findings of uncontroverted facts might affirmatively state, for 

example, that the chemical solvents and/or TCE were known to be toxic at the time they 

were used at EAFB and that it was foreseeable that these substances would be 

released into the groundwater at EAFB. Also, the government presented arguments 

addressing the first two factual questions in a memorandum filed with the Court of 

Federal Claims in support of their summary judgment motion. The presentation of these 

arguments, regardless of their merit, contradicts the Modens’ assertion that these 

issues were not debated by the parties. Thus, we conclude that the three factual 

questions were in debate. 

With regard to the second factual question, the Modens must identify a genuine 

issue of material fact supporting the conclusion that the government should have 

foreseen the release of the chemical solvents into the groundwater. In determining that 

the Modens failed to identify a genuine issue of material fact on this issue, the Court of 

Federal Claims relied upon the following uncontroverted evidence: (1) there was no 

accidental or intentional dumping of chemicals; (2) EAFB utilized an industrial drainage 

system to dispose of waste water and chemical solvents; and (3) Pride Hanger and 

04-5092 14
Building 8115 met and/or exceeded federal and state requirements for use and storage 

of chemicals. 60 Fed. Cl. at 285. The uncontroverted evidence in the record also 

shows that EAFB utilized an industrial water treatment plant. 

We agree with the Court of Federal Claims that the Modens failed to meet their 

burden on this second question in light of the uncontroverted evidence and further in 

view of the inability of the Modens to point to any evidence supporting the contention 

that the government should have foreseen the release of the chemical solvents into the 

groundwater. The evidence proffered by the government tends to show that use of TCE 

at EAFB would not directly, naturally, or probably result in the release of chemical 

solvents into the groundwater. The only relevant evidence cited by the Modens in their 

brief in opposition is the testimony of Dell Peterson, an engineer at EAFB. When asked 

whether he knew of any sources that could have caused the TCE contamination at 

issue in this case other than the Air Force’s use of TCE, Peterson testified that “aircraft 

or parts cleaning is not the only potential for this kind of contamination. Underground 

leaks in drainage systems are possible.” This evidence does not create a genuine issue 

of material fact because it can show, at most, that a government act was the cause-infact of the claimed injury, not that the injury was predictable from the act. See Ridge 

Line, 346 F.3d at 1356 (requiring that the claimed injury be the “predictable result of the 

government action”). 

While the existence of the drainage system and treatment plant points to some 

actual knowledge on the part of the government that chemical solvents should not be 

released into the groundwater because they are dangerous, the possibility of leaks in 

drainage systems generally does not create a genuine issue of material fact that the use 

04-5092 15
of chemical solvents at EAFB would directly, naturally, or probably result in their release 

into the groundwater. 

On this point, the Modens’ citation to Pashley is unavailing. While we agree that 

the government’s liability for a taking does not turn, as it would in tort, on its level of 

care, 156 F. Supp. at 738, Pashley confirms that foreseeability of injury is a relevant 

consideration. Pashley, as well as other cases cited by the Modens, involve the 

flooding of private property due to the erection of dams by the government. We think it 

suffices to point out that in Pashley our predecessor court, while addressing causation, 

noted that the “Defendant knew that the impounding of the waters above the dam would 

probably cause the property below the dam to be inundated.” Id. In other words, the 

government actually foresaw the injury it in fact caused. In contrast, here the Modens 

fail to point to any evidence in the record tending to show that the government actually 

predicted or should have predicted that the drainage system and treatment plant would 

release the chemical solvents into the groundwater. 

When pressed at oral argument to identify why the government should have 

foreseen that the drainage system and treatment plant would release the chemical 

solvents into the groundwater, the Modens’ counsel responded by stating that 

contamination may have come from other sources on EAFB, such as firing ranges, that 

did not utilize the drainage system or treatment plant. However, the record appears to 

be devoid of any evidence concerning whether the government should have foreseen 

that use of TCE at these firing ranges would release TCE into the groundwater. The 

only evidence concerning the firing ranges cited by the Modens is a statement by a 

government expert that indicates his belief that the most significant source of TCE is 

04-5092 16
likely associated with activities at these firing ranges. While this expert’s opinion may 

be sufficient to establish a genuine issue of material fact with respect to causation and 

these firing ranges, it fails to establish a genuine issue of material fact with respect to 

the foreseeability of leakage of the chemical solvents into the groundwater at these 

firing ranges. 

For these reasons, we agree with the conclusion of the Court of Federal Claims 

that the Modens have failed to identify a genuine issue of material fact supporting the 

conclusion that the government should have foreseen the release of the chemical 

solvents into the groundwater. We decline to address whether the government should 

have foreseen that the chemical solvents included a contaminant and that the 

contaminant would naturally migrate to the Modens’ ranch. 

Because we conclude that there is no genuine issue of material fact either that 

the government intended to contaminate the Modens’ ranch or that the contamination of 

the Modens’ ranch with TCE is the direct, natural, or probable result of the authorized 

use of TCE on EAFB, we find it unnecessary to address whether the contamination of 

the Modens’ ranch preempted the Modens’ right to enjoy their property for an extended 

period of time, rather than merely by inflicting an injury that reduces its value. We also 

find it unnecessary to address whether the Modens possessed a protectable property 

interest in what they allege the government has taken. 

CONCLUSION 

While dismissal for lack of subject matter jurisdiction was improper, summary 

judgment is appropriate because the Modens have failed to establish a genuine issue of 

material fact with regard to whether the contamination of their ranch with TCE is the 

04-5092 17
direct, natural, or probable result of the authorized use of TCE on EAFB. In particular, 

the Modens have failed to point to any evidence that the government should have 

foreseen the release of TCE into the groundwater on EAFB. For this reason, we affirm 

the judgment of the Court of Federal Claims. 

AFFIRMED

04-5092 18