Barlow & Haun, Inc. v. United States
118 Fed. Cl. 597
Fed. Cl.2014Background
- Plaintiffs (Barlow & Haun, TriContinental, NOWIO‑S, NOWIO‑V) own interests in 26 federal oil & gas leases in the Known Sodium Leasing Area (KSLA)/MMTA in southwestern Wyoming; the leases were issued subject to BLM regulations and required an APD to drill.
- Starting in the 1990s, conflicts arose between oil & gas development and trona mining; BLM suspended leases in the MMTA (indefinitely in April 2000) and later developed land‑use planning alternatives prioritizing trona safety and recovery.
- BLM issued a Draft RMP/EIS (2007), Proposed RMP/Final EIS (Aug. 2008), and a Record of Decision approving the Kemmerer RMP (May 2010) stating existing leases would be recognized but MMTA leases remain suspended and new leasing is administratively unavailable until miner safety can be ensured.
- Plaintiffs allege (1) a Fifth Amendment regulatory takings (permanent taking) and (2) breach of the leases (express and implied covenant), arguing BLM’s suspensions and RMP effectively prohibit development or add new conditions.
- BLM contends the claims are jurisdictionally/time‑barred or non‑justiciable (unripe) because plaintiffs never submitted APDs and BLM retained discretion to approve site‑specific APDs; trial record shows plaintiffs did not apply for permits and only Barlow & Haun held record title interest at accrual.
- The Court held a bench trial and concluded plaintiffs’ takings claim is unripe, three plaintiffs lacked standing for the contract claim, and Barlow & Haun’s breach claim failed on the merits (no repudiation). Judgment for the United States.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations for breach and takings | Plaintiffs: repudiation occurred later (2008/2010), so suit filed within 6 years | Gov: accrual as of May 1, 2000 suspension, so suit untimely | Court: Judge Miller’s prior ruling stands — claims timely; did not dismiss on 2501 grounds |
| Ripeness of takings claim | Plaintiffs: RMP/suspension finalized development prohibition; APD would be futile | Gov: takings claim unripe because plaintiffs never applied for APDs and BLM retained discretion | Court: takings claim unripe — plaintiffs must seek APDs (no futility shown) |
| Standing/privity for breach claim | All plaintiffs claim contract breach | Gov: only record title holder in privity can sue; others lack standing | Court: TriContinental, NOWIO‑S, NOWIO‑V lack privity; only Barlow & Haun remains |
| Breach by repudiation of leases | Barlow & Haun: RMP and suspension show BLM repudiated/renounced obligations | Gov: RMP expressly recognized valid existing rights and preserves APD/site‑specific process; no unequivocal refusal to perform | Court: No repudiation — BLM retained duty to consider APDs and discretion to impose COAs; breach claim fails |
Key Cases Cited
- John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (statute of limitations under 28 U.S.C. § 2501 is jurisdictional and absolute)
- Franconia Associates v. United States, 536 U.S. 129 (2002) (repudiation ripens into breach when performance is due or claimant treats repudiation as breach)
- Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) (regulatory takings claims require a final agency decision)
- Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (ripeness/futility principles in regulatory takings; agency must have chance to exercise discretion)
- Bennett v. Spear, 520 U.S. 154 (1997) (agency action final when it marks consummation and produces legal consequences)
- Heck v. United States, 134 F.3d 1468 (Fed. Cir. 1998) (futility exception protects against multiple futile permit applications when first denial makes outcome clear)
- Alliance of Descendants of Texas Land Grants v. United States, 37 F.3d 1478 (Fed. Cir. 1994) (takings claim accrues when the governmental action constituting the taking occurs)