Freeman v. United States, 875 F.3d 623

Background

RNR Resources (owned by Freeman) filed a plan of operations with the U.S. Forest Service to develop eight mining claims, proposing full-production processing facilities (to be sited partly on BLM land), roads, water storage, and creek crossings.
Forest Service reviewers found the Plan incomplete and recommended RNR instead submit a bulk-sampling proposal and build a pilot‑prototype plant to test commercial feasibility and waste/treatment issues.
The Forest Service’s July 2012 letter returned the Plan and listed specific additional information required (pilot plant, BLM plan for processing facility, water rights, air/water/roads/wildlife analyses). RNR did not supply the requested information.
RNR sued the United States alleging a regulatory taking; the Court of Federal Claims dismissed the taking claim as unripe for lack of a final agency decision and denied discovery.
The Forest Supervisor and Regional Forester both concluded the July 2012 letter was not an appealable final decision but a request for more information; the Federal Circuit affirmed dismissal for lack of ripeness.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether claim is ripe absent a final agency decision	Freeman: July 2012 letter was a final, appealable decision that ripened the taking claim	Government: Letter merely requested additional information; no appealable final decision issued	Court: Not ripe — Forest Service did not deny the Plan and did not issue an appealable decision
Whether futility exception excuses exhaustion	Freeman: Pursuing further administrative steps (pilot plant, resubmission) would be futile; Forest Service was ‘‘moving the goal posts’’	Government: Agency gave clear, curative requests and engaged with RNR; futility not shown	Court: Futility exception does not apply; agency sought to work with RNR and might accept a supplemented submission
Whether Forest Service’s pilot‑prototype requirement was unreasonable	Freeman: Requirement vague, unreasonable, and not a permissible exercise of discretion	Government: Requirement related to evaluating feasibility and environmental impacts; within agency discretion	Court: Requirement reasonable under circumstances; agency permitted discretion in complex permitting schemes
Whether discovery/evidentiary hearing should have been allowed before dismissal	Freeman: Needed discovery to litigate jurisdictional facts and show futility/bad faith	Government: No disputed facts material to ripeness; discovery premature under RCFC	Court: Denial of discovery and hearing not an abuse of discretion; facts relevant to ripeness undisputed

Key Cases Cited

Barlow & Haun, Inc. v. United States, 805 F.3d 1049 (Fed. Cir.) (ripeness requires final agency decision)
Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (U.S.) (takings claims generally not ripe until final decision)
Palazzolo v. Rhode Island, 533 U.S. 606 (U.S.) (futility exception and requirement to follow reasonable steps to allow agency discretion)
Cooley v. United States, 324 F.3d 1297 (Fed. Cir.) (permit denial final when no appeal available and denial based on unchanging fact)
Morris v. United States, 392 F.3d 1372 (Fed. Cir.) (futility exception applies only where administrative pursuit would be fruitless)
Boise Cascade Corp. v. United States, 296 F.3d 1339 (Fed. Cir.) (rule that a taking does not ripen unless permit is applied for and denied)
Wyatt v. United States, 271 F.3d 1090 (Fed. Cir.) (agencies have discretion in determining necessary additional information in permitting)
McGuire v. United States, 707 F.3d 1351 (Fed. Cir.) (agency correspondence showing need for more information undermines futility claim)
Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234 (Fed. Cir.) (presumption government officials act in good faith)
Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir.) (likelihood of adverse decision alone does not excuse exhaustion)