## 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 St ates 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 dismi ssal of their case by the United States Court of Federal Claims for la ck of subject matter jurisdiction. See Moden v. United States , 60 Fed. Cl. 275 (2004). For the r easons stated herein, we treat the dismissal as a grant of summa ry judgment. Because the Modens fail to raise a genuine issue of material fact with respect to at l east 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 in1942, 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 EAF B involved using trichloroethylene (TCE) to degrease airplane parts. Since 1985, various gover nmental entities have commissioned studies to investigate the release of hazardous subst ances 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 identif ied that groundwater underneath the Modens’ ranch was contaminat ed with TCE, a possible ca rcinogen. Researchers, including government experts, now believe that if contaminated gr oundwater migrated to the Modens’ ranch from EAFB, the contamination may have been caused by the routine aircraft maintenance activities involvi ng chemical solvents including TCE. While unable to identify with certainty the actual source of the contam ination, government reports focus on two sites within EAFB known as Pride Hanger and Building 8115. During the 1940s and 1950s, maintenance work ers 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 undergr ound storage tank. After mixing the TCE with oil, maintenance workers would apply t he mixture to the airplane parts before washing the mixture and grease o ff 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 me t or exceeded state and federal requirements for storage and use of hazardous substances. They also

04-5092 2agree 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’ r anch and that projections indicate that the duration of the contam ination may be as long as fifty years. B. Procedural Background On May 15, 2001, the Modens filed suit agains t 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 jurisd iction. 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 to rt. 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 taki ng 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 inv ade a protected property interest or the

04-5092 3asserted 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 exami ned the evidence in this case under the identified two-pronged test. Under the first par t of the first prong, the Court of Federal Claims noted that the Modens did not allege an intentiona l invasion by the United States. 60 Fed. Cl. at 283. Characterizi ng the second part of the first prong as an inquiry into the “foreseeabilit y” of damage, the C ourt 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 governm ent would have had to have known that TCE was a component of these so lvents 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 c hemical solvents, containing TCE, would have been released into the groundwater.” Id. Third, the Modens “woul d 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 M odens 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 4occurrence, which, according to the Court of Federal Claims, ev en if proved, alone would be insufficient for jurisdiction to be proper. Thus, because t he 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 Cla ims entered a final judgment on April 14, 2004. The Modens timely appealed, and we have jurisdic tion 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 to rt.” 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 ma y 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 governm ent acts lawfully when, pursuant to proper authorizati on, 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 ju st compensation. When the government repudiates this dut y, 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 circ umstances the government’s actions are not only unconsti tutional but unlawful and tortious as well. City of Monterey v. Del M onte Dunes at Monterey, Ltd. , 526 U.S. 687, 717 (1999) (citations omitted). Nevert heless, 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 r egard 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 5DISCUSSION A. Jurisdiction The Court of Federal Claim s 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 addre ssing three different types of motions: a motion to dismiss a comp laint 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 clarif y 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 me rits of a claim in a motion to dismiss for lack of subject matter juri sdiction, 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 juri sdiction exists when a petitioner asserts a nonfrivolous claim: To the extent a successful claim against the government requires compliance with all stat utory 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 a ccurate to conclude that the petitioner has failed to prove the necessary elements of a

04-5092 6cause 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 identifi ed that “[d]ismissal for lack of subject-matter jurisdiction because of t he inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implaus ible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a feder al 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 jurisd iction in this case is governed by the Tucker Act. The Tucker Act grants the United St ates Court of Federal Claims jurisdiction over claims for money damages “against the United States founded either upon the Constitution, or any Act of Congr ess or any regulation of an executive department, or upon any express or implied c ontract with the Unit ed States, or for liquidated or unliquidated damages in case s not sounding in to rt.” 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 lit igants 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 F ederal Claims should determine whether the “Constitutional prov ision, statute, or regulat ion is one that is money04-5092 7mandating.” Id. at 9. We concluded that the dete rmination of whether a claim’s source is money-mandating “shall be det erminative 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 nonfrivo lous 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 insubstantia l, 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 r epeatedly refused to concede that jurisdiction is proper in this case, it clearly is. As discussed above, the United States admit s that TCE is currently present in the groundwater under the M odens’ ranch and the government ’s own experts believe that if contaminat ed groundwater migrated to the Modens’ ranch from EAFB, the contamination may have been caused by the routine aircraft maintenance activities involving TCE. It is theref ore clear, for example, that the Modens’ claim of inverse condemnation is not made solely for t he 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 prio r decisions, or otherwise completely devoid of merit as not to involve a federal controversy.

04-5092 8Although the Court of Federal Claims st ated that dismissal was for lack of subject-matter jurisdiction, it is clear that the Court of Federal Cla ims concluded that the Modens failed to identify a genuine issue of ma terial 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 judgm ent 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 descr iption of the manner in which a landowner recovers just compensation for a taking of his proper ty 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 gov ernment to recover the value of property taken by the government without formal exerci se of the power of eminent domain. Id.

04-5092 9In Ridge Line we identified a two-part analysi s 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 gover nment intended to invade a protected property interest or that the assert ed invasion is the direct, natural, or probable result of an authorized activity and not the incidental or cons equential injury inflicted by the activity. Id. Second, it must show that the invasi on 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 ext ended period of time, rather than merely by inflicting an injury that reduces t he property’s value. Id. at 1356. If treatment under takings law is appropriate, the inverse-condemnation plainti ff 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 tr eatment under takings law is appr opriate. In this regard, the Modens do not attempt to show that t he government actually intended to invade a protected property interest. Furthermore, t he 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 mate rial fact with regard to whether the contamination of the Modens’ ranch with TCE was the direc t, 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 interp ret the direct, natural, or probable result standard differently. The gover nment contends that the resulting injury must be

04-5092 10foreseeable from the authorized governm ent 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 result ing 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 fi nds support in the l anguage of the standard, which refers to a “direct, natural, or probable result,” not a direct, natural, or probable cause. The government’s interpretation al so finds support in our case law. In Ridge Line , we stated that the cour t 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 ‘t he direct or necessary result’ of the act or because it was ‘within the contemplation of or reasonably to be antici pated by the government.’”

04-5092 11This conclusion does not m ean 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). Howe ver, 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 predict ed 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 predecesso r 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 fl ooding did not occur directly from erection of the dam, but rather through a chain of events occurring in a natural or der, but originally set in motion by the erection of the dam, the Government defended on the theory that erec tion 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 c ause’ defense by pointing out that the flooding of the land was foreseeable. We looked to the law of torts on the re moteness issue, and found no intervening cause breaking the c hain of causation. The Court concluded that the flooding wa s 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 12Avery 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 cont amination of the Modens’ ranc h with TCE was the direct, natural, or probable result of the use of TCE on EAFB. 60 F ed. 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 predicate s 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 solv ents would be released into the groundwater; and (3) that the contaminant would naturally migrate to the Modens’ ranch. The Modens argue that the th ird factual question, migration, was the only debate between the parties and that, t herefore, we should assume that the evidence supports holding a trial regarding the firs t 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 com ponent of the chemical solvents and was a contaminant. That is too strict a requirem ent since it is subjective and requires specific knowledge regarding TCE. As the gover nment concedes, foreseeability is an objective standard. Subjective foresight of injury is not required. See Cotton Land Co. , 75 F. Supp. at 235.

04-5092 13findings of uncontroverted fact make no mention of the stat e 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 evidenc e 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 t heir burden with regard to the dangerousness of the chemical solvents, pointi ng 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 affirmati vely state, for example, that the chemical so lvents and/or TCE were known to be toxic at the time they were used at EAFB and that it was fores eeable 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 j udgment motion. The presentation of these arguments, regardless of their merit, cont radicts the Modens’ assertion that these issues were not debated by t he parties. Thus, we conclude that the three factual questions were in debate. With regard to the second factual questi on, the Modens must identify a genuine issue of material fact supporting the c onclusion that the government should have foreseen the release of the chemical solvent s into the groundwater. In determining that the Modens failed to identify a genuine issue of ma terial fact on this issue, the Court of Federal Claims relied upon the following uncont roverted evidence: (1) there was no accidental or intentional dum ping of chemicals; (2) EAFB utilized an industrial drainage system to dispose of waste water and chem ical solvents; and (3) Pride Hanger and

04-5092 14Building 8115 met and/or exceeded federal and st ate requirements for use and storage of chemicals. 60 Fed. Cl. at 285. The uncontroverted evidence in the record also shows that EAFB utilized an indus trial 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 poi nt to any evidence supporting the contention that the government s hould have foreseen the release of the chemical solvents into the groundwater. The evidence proffe red by the government tends to show that use of TCE at EAFB would not directly, naturally, or pr obably 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 test imony of Dell Peterson, an engi neer at EAFB. When asked whether he knew of any sour ces that could have caused the TCE contamination at issue in this case other than t he Air Force’s use of TCE, Peterson testified that “aircraft or parts cleaning is not the onl y potential for this kind of c ontamination. Underground leaks in drainage systems are possible.” This evidence does not cr eate a genuine issue of material fact because it can show, at mo st, that a government act was the cause-infact of the claimed injury, not that t he injury was predictable from the act. See Ridge Line , 346 F.3d at 1356 (requiring that the claimed injury be the “p redictable 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 solv ents should not be released into the groundwater because they are dangerous, the possib ility of leaks in drainage systems generally does not create a genuine issue of mate rial fact that the use

04-5092 15of chemical solvents at EAFB w ould 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 tu rn, 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, wh ile 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 t he government actually predicted or should have predicted that t he drainage system and trea tment plant would release the chemical solvents into the groundwater. When pressed at oral ar gument to identify why t he government should have foreseen that the drainage syst em and treatment plant woul d release the chemical solvents into the groundwat er, 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 whet her the government should have foreseen that use of TCE at these fi ring ranges would release TCE into the groundwater. The only evidence concerning the firing ranges ci ted by the Modens is a statement by a government expert that indicates his belief that the most significant source of TCE is

04-5092 16likely associated with activities at these fi ring 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 genui ne 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 t he Court of Federal Claims that the Modens have failed to identify a genuine issue of material fact supporting the conclusion that the governm ent 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 solv ents included a contam inant and that the contaminant would naturally mi grate to the Modens’ ranch. Because we conclude that t here is no genuine issue of material fact either that the government intended to cont aminate the Modens’ ranch or that the contamination of the Modens’ ranch with TCE is the direct, natural, or probabl e result of the authorized use of TCE on EAFB, we find it unnecessary to address whet her 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 t he Modens possessed a pr otectable property interest in what they allege the government has taken. CONCLUSION While dismissal for lack of subject ma tter 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 c ontamination of their ranch with TCE is the

04-5092 17direct, natural, or probable result of the aut horized use of TCE on EAFB. In particular, the Modens have failed to point to any ev idence that the gover nment should have foreseen the release of TCE in to the groundwater on EAFB. For this reason, we affirm the judgment of the Cour t of Federal Claims. AFFIRMED

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