Copar Pumice Company, Inc. v. United States
112 Fed. Cl. 515
Fed. Cl.2013Background
- Copar Pumice Co. and Kelly Armstrong operated the El Cajete pumice mine on National Forest land in the Jemez National Recreation Area; their 2002 settlement with the United States paid ~ $3.9M and left Copar with unpatented claims subject to statutes and regulations.
- Forest Service regulations and the Jemez National Recreation Area Act (JNRAA) restrict disposal of "common variety" minerals (like pumice) and treat certain +3/4" pumice as locatable only when used in the stonewash laundry industry.
- The Forest Service issued enforcement notices (2003 NON, 2006 NON) challenging Copar’s sales/use of pumice; Copar litigated those notices in Bosworth (D.N.M.) and Tidwell (10th Cir.), which upheld the Forest Service interpretation that pumice not used for laundry purposes is common-variety and not extractable by Copar.
- In 2009 the Forest Service issued a Notice of Indebtedness seeking recovery for pumice it deemed unlawfully removed and sold; the government then sued in district court for trespass/conversion/unjust enrichment (case still pending). In 2011 Interior found the claims no longer contained locatable pumice; that decision is on administrative appeal.
- Copar sued in the Court of Federal Claims (2013 amended complaint) asserting: (1) takings under the Fifth Amendment (based on JNRAA enactment and later regulatory interpretations), (2) breach of the 2002 settlement (express and implied), and (3) equitable claims for misrepresentation and unjust enrichment. The government moved to dismiss.
- The Court of Federal Claims granted dismissal: (a) takings claim to the extent based on the 1993 JNRAA enactment is time-barred; (b) takings and breach claims arising from the 2009 Notice were dismissed for failure to state a claim ( collateral estoppel / not ripe / contractual language ); and (c) misrepresentation and unjust enrichment claims were dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a takings claim based on the 1993 enactment of the JNRAA is timely | JNRAA enactment and subsequent Forest Service interpretations took Copar’s patent/mining rights; claim is timely as a continuing injury | Any taking from the 1993 enactment accrued long before 6 years; §2501 bars suits more than six years after accrual | Dismissed for lack of jurisdiction as time-barred under the six-year Tucker Act statute of limitations |
| Whether Copar has a property right in extracted "waste pumice" (so as to state a takings claim) | Copar asserts it retained the right to remove/sell undersized or waste pumice (including sales after 2006 resolution) and that the 2009 Notice changed enforcement | Government points to Bosworth and Tidwell rulings upholding that pumice not used for laundry purposes is common-variety (owned/regulated by U.S.) and that Copar lacks extraction rights | Collateral estoppel bars relitigation; under Bosworth/Tidwell Copar has no property right in common-variety or waste pumice, so takings claims fail |
| Whether the Forest Service breached the 2002 settlement (express or implied) by issuing the Notice of Indebtedness or reinterpreting regs | Copar says settlement contemplated continued mining and sale of uncommon pumice for any purpose; the Notice repudiates that expectation and breaches the agreement/good faith | Government says settlement expressly left claims "subject to all pertinent statutes and regulations," preserving Forest Service regulatory authority and right to enforce; Cook II similarly rejected breach theory | Dismissed for failure to state a claim: settlement expressly subjects Copar to statutes/regulations and does not bar enforcement; implied covenant claim fails because actions were authorized by the agreement |
| Whether misrepresentation and unjust enrichment claims are within Court of Federal Claims jurisdiction | Copar alleges Forest Service made oral/written assurances (re 2006 NON resolution) inducing reliance and resulting loss; seeks damages including amounts from district trespass suit | Government contends these are tort- or implied-in-law contract-based claims (promissory estoppel/unjust enrichment) outside Tucker Act waiver for this court | Dismissed for lack of subject-matter jurisdiction: misrepresentation sounds in tort (not within Tucker Act); unjust enrichment is an implied-in-law claim (no waiver) and an express contract covers the subject matter |
Key Cases Cited
- Copar Pumice Co., Inc. v. Tidwell, 603 F.3d 780 (10th Cir. 2010) (upholding Forest Service interpretation that +3/4" pumice becomes common-variety when not used in laundry industry and rejecting takings claim)
- Copar Pumice Co., Inc. v. Bosworth, 502 F. Supp. 2d 1200 (D.N.M. 2007) (district court upholding Forest Service regulation interpretation and requiring verifiable proof of end-use)
- Cook v. United States, 42 Fed. Cl. 788 (1999) (Cook I) (holding entitlement to just compensation under JNRAA for patent rights lost)
- Cook v. United States, 85 Fed. Cl. 820 (2009) (Cook II) (dismissing breach-of-settlement claim; government retained regulatory rights over unpatented claims)
- Casitas Mun. Water Dist. v. United States, 708 F.3d 1340 (Fed. Cir. 2013) (takings accrual principle: claim accrues when events fixing liability have occurred)