MEMORANDUM OPINION AND FINAL ORDER
I. RELEVANT FACTUAL BACKGROUND.
On November 5, 2007, Louise Hall and Glenn Gould (“Plaintiffs”) filed a Complaint in the United States Court of Federal Claims alleging a taking of their private property by the Bureau of Land Management Ridgecrest, California Field Office’s (“BLM”) “Adopt-a-Cabin” Program. See Compl. H1. The alleged property interests at issue were “mining equipment, structures and the mining claim.” Id. 1165.
In 1989, the Adopt-a-Cabin Program was initiated by BLM and a group of concerned citizens to repair historic cabins once used by
In 1993, Plaintiff Hall purchased several unpatented mining claims, located on public land managed by BLM, including two Silver Swan mining claims and ten White Swan claims. Id. HH10, 15, 27, 27 n. 1. When the Silver Swan Claim # CAMC 49332 (“Silver Swan Claim”) was purchased, Plaintiff Hall also acquired physical property located on the claim, including a cabin, garage, three sheds, and two other structures. Id. H27.
In 1996, BLM implemented regulations requiring claimants on an unpatented mining claim to notify BLM of any occupancy on the claim and attest that the occupancy was “reasonably incident” and “reasonably calculated to lead to the extraction ... of minerals!/]” See 43 C.F.R. § 3715.2(a), (e).
In June 2001, Plaintiff Hall forfeited ownership of the second Silver Swan mining claim, # CAMC 49333, and the ten White Swan claims, because of a failure to pay maintenance fees, as required by Section 28f(a) of the Omnibus Budget Reconciliation Act of 1993, 30 U.S.C. § 28f(a).
In 2002, Plaintiff Hall sold the physical property located on the Silver Swan Claim to Plaintiff Gould. Id. 1141. At the time of the sale, neither party was aware of BLM’s activities. Id. On July 29, 2002, BLM discovered that structures on the Silver Swan Claim mistakenly were entered into the Adopt-a-Cabin Program. Id. 1143. BLM also admitted erroneously erecting the Adopt-a-Cabin signs and failing to remove them, resulting in BLM volunteers using and taking Plaintiff Hall’s personal mining equipment
II. PROCEDURAL HISTORY.
A. In The Department Of The Interior.
On March 4, 2004, Plaintiff Hall received a Notice of Noncompliance (“NONC”) from BLM, advising Plaintiff Hall that the structures on the Silver Swan Claim failed to comply with 43 C.F.R. § 3715.2, because they were not being used purposes “reasonably incident” to mining. See Compl. If 44. The NONC gave Plaintiff Hall thirty days to demonstrate that the structures were necessary for mining operations; otherwise they were to be removed by the owner. Id. Plaintiff Hall again failed to respond. Id. On April 21, 2004, BLM issued a cessation order (“CO”) “mandat[ing] that [Plaintiff] Hall cease maintaining her claims on public lands.” Id.
On March 31, 2004, Plaintiff Hall filed a Notice of Appeal with the Interior Board of Land Appeals (“IBLA”) to protest the NONC and CO on behalf of herself and Plaintiff Gould. Id. 1146.
On March 15, 2007, the IBLA ruled in favor of BLM, finding that the structures on the Silver Swan Claim were not being used for any purpose reasonably incident to mining. See Mary Louise Hall at *16. The IBLA, however, recognized that BLM failed to remove the Adopt-a-Cabin signs and advise the public that the site was not for public use. Id. at *15 (“Hall legitimately questions whether BLM has done (or could do) enough to dispel the public perception that the cabin is available for public use.”).
B. In The United States Court Of Federal Claims.
On November 5, 2007, Plaintiffs filed a Complaint in the United States Court of Federal Claims alleging that “BLM took Plaintiffs’ private property without due process and just compensation in violation of the Fifth Amendment of the United States Con
On March 28, 2008, the Government filed a Motion To Dismiss. On June 13, 2008, Plaintiffs filed a Response In Opposition And Cross-Motion To Stay Litigation. On July 14,2008, the Government filed a Reply.
III. DISCUSSION.
A. Jurisdiction.
The jurisdiction of the United States Court of Federal Claims is established by the Tucker Act. See 28 U.S.C. § 1491. This Act authorizes the court “to render judgment upon any claim 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). The Tucker Act, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages____[T]he Act merely confers jurisdiction upon it whenever the substantive right exists.” United States v. Testan,
Because the Takings Clause of the Fifth Amendment is “money-mandating,” see Moden v. United States,
B. Standing.
The United States Supreme Court has stated that “the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin,
C. Standard For Decision On A Motion To Dismiss, Pursuant To RCFC 12(b)(1).
A challenge to the “[United States Court of Federal Claims’] general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion!]” Palmer v. United States,
D. The Government’s March 28, 2008 Motion To Dismiss.
1. The Parties’ Arguments, a. The Government’s Arguments.
The Government asserts three arguments as to why the Plaintiffs’ claim should be dismissed. First, the court does not have jurisdiction to adjudicate the takings claim alleged in this ease, because “the takings clause applies only to authorized Government action” and Plaintiffs repeatedly have conceded that the government acted unlawfully. See Gov’t Mot. at 5; Klump v. United States,
Second, the Government argues that Plaintiffs cannot maintain their takings claim, because the IB LA determined that Plaintiffs had no right to maintain a cabin or other structures on the mining claim that were not “reasonably incident” to mining, pursuant to 43 C.F.R. § 3715.2. Id. at 8; see also Mary Louise Hall at *1. The Government contends that “[i]t is well established that ‘in adjudicating a taking claim, this Court does not have either the jurisdiction to review, or the authority to disregard, IBLA decisions that adjudicate property rights.’ ” Gov’t Mot. at 7 (quoting Underwood Livestock, Inc. v. United States,
Third, “ ‘[t]o have a compensable interest in unpatented mining claims sufficient to bring a takings action in this Court, there must have been a determination as to the validity of those mining claims.’” Id. at 9 (quoting Holden v. United States,
b. The Plaintiffs’ Response.
Plaintiffs respond that their takings claim is not based upon a regulatory violation, because the November 5, 2007 Complaint does not challenge the legality of BLM’s actions. See PI. Resp. at 10. Instead, the November 5, 2007 Complaint alleges that BLM’s affirmative inaction resulted in a taking of Plaintiffs’ property. Id. at 11 (“Plaintiffs are asking this Court to determine that once the BLM acknowledged that it was mistaken in placing the property in the program, it then committed a taking[ ] of the Plaintiffs’ property by failing to affirmatively take action to correct its mistake.”) (emphasis in original). Plaintiffs further argue that BLM’s inactivity caused the public to continue to trespass on Plaintiffs’ property, denying them the use of the unpatented mining claim. Id. at 11. BLM’s taking “is a legal reality.” Id. Therefore, the availability of another remedy against the Government, such as a tort claim, does not deprive the United States Court of Federal Claims of jurisdiction over the taking claim. Id. (citing Osprey Pac. Corp. v. United States,
Plaintiffs also refute the Government’s contention that Plaintiffs are asking the court to overturn the IBLA’s decision. Id. Instead, Plaintiffs are seeking compensation, because of “a temporary taking of the Plaintiffs’ property.” Id. at 13. From “[t]he induction of the Plaintiffs’ property into the Adopt-a-Cabin program in 2001 until the IBLA’s decision in 2007,” Plaintiffs “have been unable to enjoy and utilize their property.” Id. Compensation for this taking can be awarded without regard to the IBLA’s determination. Id.
Plaintiffs agree with the Government that “[t]o have a compensable interest in unpafc-ented mining claims” Plaintiffs must receive “a determination [from BLM] as to the validity of those mining claims.” Id. (quoting Holden,
c. The Government’s Reply.
The Government replies that the reasoning in Osprey may be distinguished from the facts in this case, and in any event, is in conflict with the United States Court of Appeals for the Federal Circuit’s decision in Lion Raisins, Inc. v. United States,
We have made clear that a claim premised on a regulatory violation does not state a claim for a taking____[W]e [have] distinguished] between the valid exercise of the [United States] Court of Federal Claim’s jurisdiction over a takings claim when the claim was that “property was taken regardless of whether the agency acted consistently with its statutory and regulatory mandate” and the bar to such jurisdiction when “the plaintiff claims it is entitled to*470 prevail because the agency acted in violation of statute or regulation.”
Id. at 1369 (quoting Rith Energy,
In this case, the November 5, 2007 Complaint alleges that Plaintiffs are entitled to relief, because of unlawful Government action, albeit a “mistake.” See Gov’t Reply at 4. Failing to correct a “mistake,” however, is not cognizable under the Takings Clause of the Fifth Amendment. Id.; see also Golden Pac. Bancorp v. United States,
2. The Court’s Resolution.
The Takings Clause of the Fifth Amendment of the United States Constitution applies to real property as well as personal property. See Maritrans Inc. v. United States,
a. The Alleged Taking Of Plaintiff Hall’s Silver Swan Mining Claim.
The November 5, 2007 Complaint alleges that Plaintiff Hall has “exclusive possession” over the “surface property” of the Silver Swan Claim, the “right to exclude the public from her property,” and a “valid property interest for purposes of compensation under the Fifth Amendment.” Compl. HIT 51, 65. The Complaint alleges that BLM’s MOU unlawfully authorized “casual use mining on the unpatented [Silver Swan Claim].” Id. H 39. Moreover, in attempting to mine her claim, Plaintiff Hall has been subject to “abuse by the volunteers [from the Adopt-a-Cabin Program] ... and has even been shot at.” Id. 1150.
As stated above, this court must first ask whether Plaintiffs have a valid property interest in the unpatented Silver Swan Claim. See Karuk Tribe,
It is well settled that although the United States holds legal title to unpatented mining claims in fee simple, “the claimant enjoys a valid, equitable title in the claim, possessing all of the incidents of real property.” Kunkes v. United States,
It is significant that unlike Plaintiffs’ property interest in the structures on the Silver Swan Claim, neither BLM nor the IBLA ever contested Plaintiff Hall’s potential property right to the Silver Swan Claim. See Mary Louise Hall at *15 (“Even if BLM had properly required removal of the cabin, this would not have affected [Hall’s] underlying right to conduct mining-related activities on the claim[.]”). Therefore, in denying the Government’s Motion To Dismiss, as it relates to the mining claim and exclusive possession, the court does not overrule the IBLA’s decision or disregard its authority. See Underwood Livestock, 79 Fed.CI. at 497. The court is mindful that “where the administrative agencies of the Interior Department have decided that the United States (not the claimants) own the disputed property, the [United States] Court of [Federal] Claims [can] not review or overturn that administrative determination even though that court indisputably had jurisdiction over ‘taking’ claims.” Aulston v. United States,
b. The Alleged Taking Of Structures And Personal Property On The Silver Swan Claim.
The November 5, 2007 Complaint also alleges a taking of structures on the Silver Swan Claim, as well as personal property, including mining equipment, in violation of the Fifth Amendment. See Compl. H 65. Around November 3, 2001, BLM mistakenly enrolled the structures on the Silver Swan Claim into the Adopt-a-Cabin Program. Id. at 1135. Plaintiff Hall, however, concedes non-compliance with 43 C.F.R. § 3715.2, since August 18, 1997, having failed to establish that occupancy was reasonably incident and reasonably calculated to the extraction of minerals. Id. at 1129. Although BLM could have taken corrective action at that time by issuing a NONC, it did not. See Mary Louise Hall at *6. Instead, BLM “sought Hall’s permission to incorporate the cabin into [the] ‘Adopt-a-Cabin’ program.” Id.
It was not until January 2004 that BLM issued a NONC, informing Plaintiffs that BLM assumed ownership of the cabin on the Silver Swan Claim. Id. at *12. Plaintiffs appealed to the IBLA See Compl. 1146. The IBLA, however, affirmed the NONC, holding that “the cabin and other structures on the Silver Swan [C]laim were not being used for any purpose reasonably incident to mining[,] as required by 43 C.F.R. § 3715.2[,] and are therefore subject to removal.” Mary Louise Hall at *16. The IBLA observed that Plaintiff Hall failed to comply with the requirements of 43 C.F.R. § 3715.2 prior to BLM’s error in enrolling the cabin in the public program. Id. at *6 (“The record makes clear that Hall could not justify the presence of the cabin and other structures under 43 C.F.R. § 3715.2.”); see also id. at *14 (“There can be little doubt that we would have affirmed the NONC had BLM issued it before adopting Hall’s cabin.”).
Given the factual allegations, as stated in the Complaint, and the IBLA’s decision, Plaintiffs have failed to establish a property interest either in the cabin or other structures on the land, since at least 1997, because of noncompliance with BLM regulations. Id. at *16. In addition, if Plaintiffs wanted to challenge the legality of 43 C.F.R. § 3715.2
Although it appears that unnamed private parties took some of Hall’s mining equipment, the court also has no jurisdiction over that activity. See Alves v. United States,
IV. CONCLUSION.
For these reasons, the Government’s March 28, 2008 Motion To Dismiss is granted in part and denied in part. The case is hereby stayed for six months, pending a validity determination of Plaintiff Hall’s mining claim by BLM.
IT IS SO ORDERED.
Notes
. The facts cited herein were derived from: Plaintiffs’ November 5, 2007 Complaint (“Compl.”); United States Department of the Interior, Office of Hearings and Appeals March 15, 2007 Order in Mary Louise Hall, IBLA 2004-204, CACA-45693 ("Mary Louise Hall"); the Defendant ("Goverament”)’s March 28, 2008 Motion To Dismiss ("Gov’t Mot.”); Plaintiffs’ June 13, 2008 Response In Opposition To The Government’s Motion To Dismiss And Cross-Motion To Stay Litigation ("Pl.Resp.”); and the Government’s July 14, 2008 Reply (“Gov’t Reply”).
. Section 3715.2 of Title 43 of the United States Code of Federal Regulations states:
In order to occupy the public lands under the mining laws for more than 14 calendar days in any 90-day period within a 25-mile radius of the initially occupied site, you must be engaged in certain activities. Those activities that are the reason for your occupancy must:
(a) Be reasonably incident;
(b) Constitute substantially regular work;
(c) Be reasonably calculated to lead to the extraction and beneflciation of minerals;
(d) Involve observable on-the-ground activity that BLM may verify under § 3715.7; and
(e) Use appropriate equipment that is presently operable, subject to the need for reasonable assembly, maintenance, repair or fabrication of replacement parts.
43 C.F.R. § 3715.2.
. Section 28f(a) of the Omnibus Budget Reconciliation Act of 1993 provides:
(a) Claim maintenance fee. The holder of each unpatented mining claim, mill, or tunnel site, located pursuant to the mining laws of the United States, whether located before, on or after August 10, 1993, shall pay to the Secretary of the Interior, on or before September 1 of each year, a claim maintenance fee of $100 per claim or site[.j Such claim maintenance fee shall be in lieu of the assessment work requirement contained in the Mining Law of 1872 (30 U.S.C. 28 to 28e) and the related filing requirements contained in section 1744(a) and (c) of Title 43.
30 U.S.C. § 28f(a).
. The missing mining equipment included:
• Steel welded bat cages and locks from mining tunnels and mining shafts;
• Mining shaft and tunnel shoring;
■ Equipment and supplies for the full production of jewelry and sculptures;
• Mineral beads and findings;
• 400 pounds of cut and polished gemstones, 200 pieces of finished gemstones and beaded jewelry, one ton of slabbed and blocked onyx, 20 marble tabletops, additional marble and soapstone sculptures; and
■ One small trencher, one gasoline engine concrete mixer, 2,500 gallon water storage tank, 4— 55 gallon barrels for water storage, batteries and generators, solar panels, three ore carts and tracks, stone setting and jewelry making equipment, saws used for quarrying stone, various sized core drills, other additional equipment related to mining, and mineral product finishing.
See Compl. II42.
. The used structures included:
• One 1500 square foot stone house, unfurnished, with an additional attached garage and covered porch;
■ One separate 736 square foot stone and cement garage;
■ One tool house approximately 100 square feet;
• One 221 square foot cabin with attached garage of 190 square feet; and
• One 273 square foot storage shed.
See Compl. 1112.
. The IBLA stated, however, that "[w]e render no finding about the adverse effect on [Plaintiff's] mining rights and her right of possession created by BLM’s authorizing recreation on the surface as that issue is not before us.” Mary Louise Hall at *15 n. 14.
. The Fifth Amendment of the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Const. Amend. V. (emphasis added).
. As Plaintiffs’ Complaint states, only the Silver Swan Claim, # CAMC 49332, is at issue. Compl. 1127 n. 1. Plaintiff Hall forfeited the second Silver Swan claim, 3 CAMC 49333, and the ten White Swan claims in 2001 after she failed to pay the maintenance fees, required by 30 U.S.C. § 28f(a). Id.