Freeman v. United States , 875 F.3d 623 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
WALTER B. FREEMAN, RNR RESOURCES, LLC,
MICHELLE L. HARRIS, SANDRA LEE FINCHER,
JAMES R. OMUNDSON,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2694
______________________
Appeal from the United States Court of Federal
Claims in No. 1:01-cv-00039-NBF, Senior Judge Nancy B.
Firestone.
______________________
Decided: November 3, 2017
______________________
RICHARD MERRITT STEPHENS, Stephens & Klinge LLP,
Bellevue, WA, argued for plaintiffs-appellants.
AVI KUPFER, Appellate Section, Environment and
Natural Resources Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by JEFFREY H. WOOD.
______________________
2 FREEMAN v. UNITED STATES
Before PROST, Chief Judge, WALLACH and STOLL, Circuit
Judges.
WALLACH, Circuit Judge.
Appellants Walter B. Freeman, RNR Resources, LLC
(“RNR”), Michelle L. Harris, Sandra Lee Fincher, and
James R. Omundson (collectively, “Appellants”) sued
Appellee the United States (“the Government”), alleging,
inter alia, a regulatory taking of RNR’s mining claims by
the Government. The U.S. Court of Federal Claims
granted the Government’s motion to dismiss Appellants’
regulatory taking claim for lack of subject matter jurisdic-
tion because the claim was not ripe. Freeman v. United
States (Freeman I), 124 Fed. Cl. 1, 2 (2015); see Freeman
v. United States (Freeman II), No. 01-39L, 2016 WL
943859, at *1 (Fed. Cl. Mar. 1, 2016) (denying reconsider-
ation). Appellants appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3) (2012). We affirm.
BACKGROUND
RNR, which is solely owned by Mr. Freeman, 1 located
eight mining claims on public lands of the Rogue River
Siskiyou National Forest. See J.A. 41–42. In 2011, RNR
filed a plan of operations (“the Plan”) with the U.S. Forest
Service (“Forest Service”) “to authorize commercial min-
ing of the[se] new mining claims” as required by regula-
tion. 2 J.A. 42; see J.A. 245. The Plan describes a project
to mine ore that “contains commercially recoverable
1 In reciting the facts, we refer to “RNR” and “Mr.
Freeman” interchangeably.
2 The operative complaint explains that, after RNR
filed the Plan, Michelle L. Harris, Sandra Lee Fincher,
and James R. Omundson issued quitclaim deeds to RNR,
but each of these three individuals continued to be
“named as plaintiffs because of the Anti-Assignment Act,”
J.A. 42, apparently referring to 31 U.S.C. § 3727 (2012).
FREEMAN v. UNITED STATES 3
amounts of nickel, chromium[,] and iron” from two depos-
its over the course of thirty years. J.A. 269; see J.A. 251.
In order to haul the mined and screened ore to a pro-
cessing site, RNR proposed construction of nearly eight
miles of new roads, excavation of a pit for water storage,
and construction of two crossings over a creek. J.A. 270–
71. RNR also proposed the creation of a processing facili-
ty “on an approximately [twenty] acre site,” J.A. 271; see
J.A. 264 (map with location of facility), which was to be
located on lands managed by the U.S. Department of the
Interior’s Bureau of Land Management (“BLM”), J.A. 105.
After receiving the Plan, District Ranger Roy Berg-
strom directed Area Mining Geologist Kevin Johnson to
review the Plan. J.A. 103–04, 154. During two separate
telephone conversations that occurred soon after RNR
filed the Plan, Mr. Freeman discussed with Messrs.
Bergstrom and Johnson the potential of “conducting a
bulk sample of minerals on his mining claims” to collect
“10–15 tons of material.” J.A. 104; see J.A. 155, 342.
During these discussions, Messrs. Bergstrom and Johnson
eventually advised Mr. Freeman to submit a written
proposal of the bulk sampling to include in the Plan.
J.A. 104, 155. Mr. Johnson also informed Mr. Freeman
that the Forest Service needed additional time to provide
a formal response to the Plan given its complexity.
J.A. 291.
In March 2012, Mr. Johnson sent a memorandum to
Mr. Bergstrom with his assessment of the Plan. See
J.A. 291–93. Mr. Johnson understood that Mr. Freeman
planned to build a full-production “processing facility”
that would include, inter alia, “a rotary kiln,”
“three . . . ore storage buildings,” a “furnace/metal pro-
cessing building,” and “a supply storage building.”
J.A. 291. Mr. Johnson, however, noted that the BLM
office “had not received a plan of operation from Mr.
Freeman for the construction of [this full-production]
processing facility,” despite the Plan’s proposal to con-
4 FREEMAN v. UNITED STATES
struct the processing facility on BLM-managed lands. 3
J.A. 292; see J.A. 242 (explaining that Mr. Johnson
checked with the BLM every one to two months about the
status of Mr. Freeman’s BLM plan of operations). Mr.
Johnson also indicated that the Plan did not include a
“discussion of the operator owning or obtaining a water
right for the operating facility.” J.A. 292. He explained
that RNR would need to construct a pilot-prototype
plant, 4 which he identified as “a standard practice in the
mining industry.” J.A. 292. According to Mr. Johnson, a
pilot-prototype plant would allow Mr. Freeman to deter-
mine economic feasibility, evaluate treatment and dispos-
al of waste, and identify the best potential product to be
processed. J.A. 292–93. Therefore, Mr. Johnson conclud-
ed:
[The Plan] is not reasonable and does not repre-
sent the next logical or sequential step in the de-
velopment of this deposit in a mine of this size
and scope. I recommend that the [Plan] be re-
turned to Mr. Freeman with the suggestion that
he submit a proposal for bulk sampling and con-
struction of a pilot-prototype plant that can pro-
3 The requirement to submit a plan of operations to
the BLM to receive approval to construct a processing
facility is separate and distinct from the requirement to
submit a plan of operations (e.g., the Plan in this case) to
the Forest Service to conduct operations that might affect
surface resources. Compare 36 C.F.R. § 228.4(a)(4) (2016)
(requiring plan of operations to the Forest Service), with
43 C.F.R. § 3809.11 (2016) (requiring plan of operations to
the BLM).
4 Mr. Bergstrom described the pilot-prototype plant
as a necessary step before “scaling up to [the] full[-
]production processing facility” identified in the Plan.
J.A. 294.
FREEMAN v. UNITED STATES 5
cess the bulk sample so that it can be determined
if production scaled mining and smelting is feasi-
ble.
J.A. 293 (emphasis added).
In July 2012, Mr. Bergstrom sent Mr. Freeman a let-
ter containing the Forest Service’s written response to the
Plan and attached Mr. Johnson’s memorandum.
J.A. 294–95. Mr. Bergstrom specifically explained that
the Plan “will not be processed until [Mr. Freeman] pro-
vide[s] additional information and changes to the [P]lan
as outlined in Mr. Johnson’s memorandum.” J.A. 294
(emphases added). The letter highlighted the lack of a
pilot-prototype plant and Mr. Freeman’s failure to submit
a companion plan to the BLM for construction of a full-
production processing facility. J.A. 294. Mr. Bergstrom
requested Mr. Freeman “reconsider [his] proposal,” “sub-
mit a new plan . . . with more detail,” and provide “con-
firmation that [he] ha[s] submitted a plan to the BLM.”
J.A. 295.
During a meeting in September 2012 to discuss “next
steps” in light of the July 2012 letter, Messrs. Bergstrom
and Johnson reiterated the need for a pilot-prototype
plant. J.A. 249; see J.A. 337. Although Mr. Freeman
asked Messrs. Bergstrom and Johnson to tell him “how
large a sample [for] the pilot[-prototype] plant” was
needed, they responded “that it was not up to [the Forest
Service] to determine . . . the amount of material, but it
was [Mr. Freeman’s] responsibility [to] show that it was
feasible to ramp up the process to a production capacity.”
J.A. 249. According to Mr. Freeman’s characterization of
the meeting, Mr. Bergstrom “confirm[ed] that [he] would
not process the pending plan of operations [(i.e., the Plan)]
without pilot[-prototype] plant work.” J.A. 337 (emphasis
added).
Thereafter, Mr. Bergstrom requested more specific in-
formation from Mr. Johnson related to comments made by
6 FREEMAN v. UNITED STATES
Mr. Freeman during this meeting. J.A. 310. In response,
Mr. Johnson prepared a second memorandum in June
2013. J.A. 310–19. Mr. Bergstrom sent a letter with Mr.
Johnson’s latest memorandum to Mr. Freeman. J.A. 320.
Mr. Bergstrom noted that there were “a number of items
that are insufficient” in the Plan, and listed some new and
previously-identified deficiencies, such as “information on
air and water quality, solid waste, scenic values, fisheries
and wildlife habitat, and roads.” J.A. 320. He reiterated
that RNR still needed to submit a plan to the BLM for the
full-production processing facility. See J.A. 320 (mention-
ing that, “[b]ased on recent studies,” the proposed pro-
cessing facility “may have some technical issues that may
make it currently not feasible”). To date, RNR has not
responded to the Forest Service’s requests for additional
information, including the submission of a bulk sampling
proposal, the development of a pilot-prototype plant, or
the filing of a plan of operations with the BLM for the
construction of a full-production processing facility. See
Oral Arg. at 14:00–30, http://oralarguments.cafc.uscourts.
gov/default.aspx?fl=2016-2694.mp3; J.A. 297.
Instead of providing any of this additional infor-
mation, Appellants sued the Government, alleging, inter
alia, a regulatory taking of RNR’s mining claims. 5
5 Before filing its complaint, RNR attempted to ap-
peal the July 2012 letter to the Rogue River Siskiyou
National Forest Supervisor, J.A. 298–99, but the Forest
Supervisor determined the letter was not an appealable,
final decision and encouraged RNR to work with Mr.
Bergstrom to complete its application, J.A. 302. RNR
appealed the denial of its appeal to a Regional Forester,
J.A. 303–05, who agreed with the Forest Supervisor’s
determination that the letter was not an appealable, final
decision but rather a request for additional information,
J.A. 309.
FREEMAN v. UNITED STATES 7
J.A. 33, 47–48. The Government moved to dismiss for
lack of subject matter jurisdiction. See Freeman I, 124
Fed. Cl. at 1. Appellants filed a motion for “authorization
of discovery,” J.A. 491 (capitalization modified), which the
Court of Federal Claims denied, J.A. 68. The Court of
Federal Claims granted the Government’s Motion to
Dismiss RNR’s claim as unripe, Freeman I, 124 Fed. Cl. at
2, and denied Appellants’ motion for reconsideration,
Freeman II, 2016 WL 943859, at *1.
DISCUSSION
I. Standard of Review and Legal Standard
We review de novo the Court of Federal Claims’ dis-
missal of a claim as unripe. Barlow & Haun, Inc. v.
United States, 805 F.3d 1049, 1054 (Fed. Cir. 2015). We
review underlying factual findings by the Court of Federal
Claims for clear error. Id. When, as here, a motion to
dismiss “challenges the truth of the jurisdictional facts,”
the Court of Federal Claims “may consider relevant
evidence in order to resolve the factual dispute.” Banks v.
United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014) (in-
ternal quotation marks and citation omitted). “In such
cases, the plaintiff has the burden of proving subject
matter jurisdiction by a preponderance of the evidence.”
Id. (citation omitted).
The Fifth Amendment prohibits the Government from
taking “private property . . . for public use, without just
compensation.” U.S. Const. amend. V. Generally, “a
claim for a regulatory taking is not ripe until the
[G]overnment entity charged with implementing the
regulations has reached a final decision regarding the
application of the regulations to the property at issue.”
Barlow & Haun, 805 F.3d at 1058 (emphasis added)
(internal quotation marks and citation omitted); see
Williamson Cty. Reg’l Planning Comm’n v. Hamilton
Bank, 473 U.S. 172, 190 (1985) (“Our reluctance to exam-
ine taking claims until such a final decision has been
8 FREEMAN v. UNITED STATES
made is compelled by the very nature of the in-
quiry . . . .”). “[A] court must determine whether a party
has obtained a final decision from the reviewing agency[]
or whether the final decision was unnecessary due to lack
of discretion on the agency’s part.” Barlow & Haun, 805
F.3d at 1058 (citing Palazzolo v. Rhode Island, 533 U.S.
606, 618–20 (2001)). “A permit denial is final when the
applicant has no appeal mechanism available and the
denial is based on an unchanging fact.” Cooley v. United
States, 324 F.3d 1297, 1302 (Fed. Cir. 2003) (emphasis
added) (citation omitted).
A failure to secure a final decision may be excused
under the futility exception, “where [an] agency’s decision
makes clear that pursuing remaining administrative
remedies will not result in a different outcome.” Morris v.
United States, 392 F.3d 1372, 1376 (Fed. Cir. 2004).
Indeed, “Government authorities . . . may not burden
property by imposition of repetitive or unfair land-use
procedures in order to avoid a final decision.” Palazzolo,
533 U.S. at 621. The private party, however, must first
“follow[] reasonable and necessary steps to allow regula-
tory agencies to exercise their full discretion.” Id. at 620.
II. RNR’s Regulatory Taking Claim Is Not Ripe for Re-
view
The Court of Federal Claims determined that Appel-
lants’ claim was not ripe because: (1) the Forest Service
had not issued a final decision regarding the Plan; and
(2) the futility exception did not apply. Freeman I, 124
Fed. Cl. at 7–9. Appellants challenge both findings on
appeal. See Appellants’ Br. 16–26 (addressing the final
decision requirement), 38–39 (addressing the futility
exception). We address these issues in turn.
A. The Forest Service Has Not Reached a Final Decision
The Forest Service has a process through which pri-
vate parties may obtain permission to mine. By regula-
FREEMAN v. UNITED STATES 9
tion, the Forest Service requires “any person proposing to
conduct operations which might cause significant disturb-
ance of surface resources” to submit a notice of intent to
operate to a District Ranger. 36 C.F.R. § 228.4(a); see 30
U.S.C. § 612(b) (2012) (subjecting mining claims to certain
restrictions); see also United States v. Shumway, 199 F.3d
1093, 1107 (9th Cir. 1999) (“[T]he Forest Service may
regulate use of National Forest lands by holders of unpat-
ented mining claims . . . .”). “If the District Ranger de-
termines that any operation is causing or will likely cause
significant disturbance of surface resources, the District
Ranger shall notify the operator that the operator must
submit a proposed plan of operations for approval . . . .”
36 C.F.R. § 228.4(a)(4); see id. § 228.4(c) (listing the
required contents of a plan of operations). Within thirty
days of receiving a plan of operations, the District Ranger
shall “analyze the proposal,” id. § 228.5(a), and then,
relevant here, either: “approve[] the plan,” id.
§ 228.5(a)(1); “[n]otify the operator of any changes in, or
additions to, the plan of operations deemed necessary to
meet the purpose of the regulations,” id. § 228.5(a)(3); or
“[n]otify the operator that the plan is being reviewed, but
that more time, not to exceed an additional sixty . . . days,
is necessary to complete such review, setting forth the
reasons why additional time is needed,” id. § 228.5(a)(4).
The regulations list the “[a]pproval or denial of an initial,
modified, or supplemental plan of operations” as decisions
that are appealable, id. § 214.4(b)(1), and provide that an
“[o]fficial” must “give written notice of decisions subject to
appeal” by “specify[ing] the contents of an appeal, the
name and mailing address of the Appeal Deciding Officer,
and the filing deadline,” id. § 214.6(a), (b).
Appellants do not dispute that this regulatory process
applies here; indeed, RNR filed the Plan with the Forest
Service in accordance with § 228.4(a)(4). See J.A. 251.
Instead, Appellants contend that RNR completed this
regulatory process and received a final decision in the
10 FREEMAN v. UNITED STATES
form of the July 2012 letter from Mr. Bergstrom. See
Appellants’ Br. 17. The Court of Federal Claims agreed
with the Forest Supervisor and the Regional Forester’s
determinations that the July 2012 letter was not a final,
appealable decision. See Freeman I, 124 Fed. Cl. at 8; see
also J.A. 302 (Forest Supervisor’s decision), 309 (Regional
Forester’s decision). We agree with the Court of Federal
Claims.
Tellingly, Appellants concede they never received a
notice of a final decision that is appealable as provided in
§ 214.6. See Oral Arg. at 1:34–41 (Q: “Did RNR receive a
notice of appealable decision?” A: “They did not receive a
document that said that.”). Additionally, we have articu-
lated “[t]he rule that a taking does not ripen unless a
permit is applied for and denied.” Boise Cascade Corp. v.
United States, 296 F.3d 1339, 1351 (Fed. Cir. 2002) (em-
phasis added). The Forest Service did not deny the Plan,
but instead notified RNR of “additions to[] the
[P]lan . . . deemed necessary,” 36 C.F.R. § 228.5(a)(3),
including the need to submit a bulk sampling proposal,
construct a pilot-prototype plant, file a plan of operations
with the BLM, and obtain water rights for the processing
facility, J.A. 292–94, 320, to which RNR did not respond,
J.A. 104–05, 155–56. 6 Accordingly, the Forest Service has
not reached a final decision on the Plan.
6 Despite RNR’s repeated failure to submit the re-
quested information, the Forest Service has continued to
work with RNR by reviewing the Plan on more than one
occasion and providing additional details regarding these
major deficiencies. J.A. 292–93, 320–21; see J.A. 294
(citing § 228.5(a)(3)’s authorization to request additional
information). The Forest Service also made clear that
RNR must provide missing “information on air and water
quality, solid waste, scenic values, fisheries and wildlife
habitat, and roads.” J.A. 320. To date, RNR still has not
FREEMAN v. UNITED STATES 11
B. The Futility Exception Does Not Excuse Appellants’
Failure to Secure a Final Decision
Appellants argue, in the alternative, that compliance
with the Forest Service’s additional requests would be
futile because continuing to pursue the administrative
process would not result in a different outcome. Appel-
lants’ Br. 38–39. We are not convinced compliance with
those requests would be futile.
The Forest Service’s communications with RNR no-
where implied or stated that pursuing administrative
remedies would be fruitless. See Morris, 392 F.3d at
1376. The record reveals quite the opposite. As discussed
above, the Forest Service identified particular deficiencies
in the Plan and asked RNR to cure those deficiencies. See
J.A. 292−94. The Forest Service demonstrably tried to
work with RNR to complete its application. Messrs.
Bergstrom and Johnson had telephonic and in-person
meetings with Mr. Freeman, J.A. 104, 155, 249, and they
exchanged several letters with RNR relating to the Plan
and the next steps required of RNR, J.A. 289, 294, 320;
see McGuire v. United States, 707 F.3d 1351, 1362 (Fed.
Cir. 2013) (holding the futility exception did not apply
where agency’s correspondence made clear that applicant
“needed to do more to exhaust his [administrative] reme-
dies”). Without more, we cannot say that the Forest
Service would have denied a re-submitted version of the
Plan that included the missing information.
Appellants suggest that the Forest Service has an ul-
terior motive to prevent RNR from mining by “moving the
goal posts” and continuing to find additional deficiencies
with the Plan, such that compliance with the requests
complied with these requests. See Oral Arg. at 14:00–30
(acknowledging that RNR has not fulfilled the Forest
Service’s requests for additional information).
12 FREEMAN v. UNITED STATES
would not further RNR’s chances of securing a permit.
Appellants’ Br. 39; see Oral Arg. at 3:12–5:32 (discussing
concerns with reasonableness of the pilot-prototype plant
requirement). Appellants posit that the July 2012 letter
amounts to a final decision because the Forest Service’s
guidance on the size and scope of a pilot-prototype plant
was vague and therefore unfair, and the creation of such a
plant would not have enabled the Forest Service to exer-
cise its full discretion as such a requirement was unrea-
sonable. See Appellants’ Br. 17–18; see also Palazzolo,
533 U.S. at 620. These arguments lack merit.
First, the fact that the Forest Service did not clearly
lay out the requirements of a pilot-prototype plant neither
renders its request an unfair attempt to avoid a final
decision, nor releases RNR from its obligation to comply
with that request. The Forest Service indicated that the
purpose of creating a pilot-prototype plant was to verify
the commercial viability of the Plan. See J.A. 249 (ex-
plaining RNR needed to show “that it was feasible to
ramp up the process to a production capacity”), 293 (dis-
cussing the need to determine feasibility of “production
scaled mining and smelting”). The Forest Service’s rejec-
tion is reasonably related to its regulations’ “purpose” of
“minimiz[ing] adverse environmental impacts” of mining
operations “on National Forest System surface resources.”
36 C.F.R. § 228.1. Appellants fail to identify why the
creation of a pilot-prototype plant, which the Forest
Service has identified as a standard industry practice for
metallurgically complex deposits, J.A. 292, would be
unreasonable or unnecessary given the factual circum-
stances present here, see generally Appellants’ Br. In-
stead, the Forest Service, just as the agency involved in
Wyatt v. United States, is afforded discretion “in deter-
mining what additional information is required to satisfy
statutorily imposed obligations” to “implement [its] com-
plex permitting schemes.” 271 F.3d 1090, 1098 (Fed. Cir.
2001). On this record, we do not believe the pilot-
FREEMAN v. UNITED STATES 13
prototype plant requirement is repetitive or unfair. See
Palazzolo, 533 U.S. at 621 (warning against “imposition of
repetitive or unfair” practices by the Government “to
avoid a final decision”).
Second, Appellants do not provide evidence to support
their speculation of an ulterior motive by the Forest
Service. See generally Appellants’ Br. Appellants’ bare
assertion fails to rebut our long-recognized “presumption
that government officials act in good faith.” Am-Pro
Protective Agency, Inc. v. United States, 281 F.3d 1234,
1239 (Fed. Cir. 2002). Rather, “the deficiency of com-
pleteness in the application process [is] attributable” to
RNR. Washoe Cty. v. United States, 319 F.3d 1320, 1324
(Fed. Cir. 2003). Moreover, as we have explained in
another context, even if “an adverse decision may have
been likely,” which RNR has not shown here, that fact
alone “does not excuse a party from a statutory or regula-
tory requirement that it exhaust administrative reme-
dies.” Corus Staal BV v. United States, 502 F.3d 1370,
1379 (Fed. Cir. 2007) (discussing the futility exception in
an international trade dispute). Accordingly, we find it
inappropriate to excuse Appellants’ failure to secure a
final decision as futile, and we hold that their claim is not
ripe for review. 7 Appellants may still ripen their claim by
7 Appellants also argue that the Forest Service
failed to follow its own regulations by not notifying RNR
of a need for additional information within thirty days, as
required by § 228.5(a). Appellants’ Br. 19. However,
Appellants do not argue that this delay ripens their claim,
nor do they contend that this delay is a taking by itself.
See generally id. A party’s failure to make arguments
under the operative legal framework “typically warrants a
finding of waiver.” Nan Ya Plastics Corp. v. United
States, 810 F.3d 1333, 1347 (Fed. Cir. 2016). In any
event, for delay in governmental decision making to
14 FREEMAN v. UNITED STATES
submitting the additional information requested by the
Forest Service and securing a final decision.
III. Appellants’ Remaining Arguments Are Unavailing
Appellants also argue that the Court of Federal
Claims erred by not allowing discovery of jurisdictional
facts, an evidentiary hearing, or deferral of the ripeness
inquiry until there could be a trial on the merits. Appel-
lants’ Br. 29–38. We review the Court of Federal Claims’
denial of a discovery request and its evidentiary rulings
for an abuse of discretion. See Rick’s Mushroom Serv.,
Inc. v. United States, 521 F.3d 1338, 1342 (Fed. Cir. 2008)
(requests for discovery); Taylor v. United States, 303 F.3d
1357, 1359 (Fed. Cir. 2002) (evidentiary rulings). There
was no abuse of discretion here.
First, the Court of Federal Claims did not abuse its
discretion by denying Appellants’ request for discovery.
Appellants have failed to point to any legal error in the
Court of Federal Claims’ decision. See Appellants’ Br. 29–
38. Rather, the Rules of the Court of Federal Claims
(“RCFC”) support the decision to deny discovery. The
rules allow for discovery only after “the parties have
conferred.” RCFC 26(d)(1) (2016). That conference typi-
cally occurs after the Government files an answer. RCFC
App. A ¶ 3. Neither the filing of an answer nor a confer-
ence had occurred here. See J.A. 68; Appellants’ Br. 31.
Recognizing this, the Court of Federal Claims denied
Appellants’ request for discovery, finding no reason to
constitute a taking, we have recognized that more egre-
gious facts than those present here are required. See, e.g.,
Wyatt, 271 F.3d at 1098 (recognizing both that the “Su-
preme Court has condoned delays up to approximately
eight years” and that we rarely find a taking due to
extraordinary delay “without a showing of bad faith”
(internal quotation marks and citation omitted)).
FREEMAN v. UNITED STATES 15
deviate from the procedure contemplated by the rules.
See J.A. 68 (“Discovery shall proceed in accordance with
the rules.”). Appellants have also failed to meet their
burden to proffer with sufficient specificity the jurisdic-
tional facts that they believe would have been discovered
to change the Court of Federal Claims’ jurisdictional
finding. See Oral Arg. at 7:04–23 (Q: “What did you
specifically ask the Court of Federal Claims to let you
discover—what facts?” A: “We did not identify specific
facts.”); see also Smith v. United States, 495 F. App’x 44,
49 (Fed. Cir. 2012) (holding the Court of Federal Claims
did not abuse its discretion by denying a discovery request
where appellant “failed to explain with sufficient specifici-
ty how discovery would help him overcome the various
jurisdictional bars to his suit”).
Second, as to the denial of an evidentiary hearing or
deferral of the ripeness inquiry until trial, there is no
dispute over any facts relevant to ripeness. RNR failed to
complete the administrative process to secure a permit.
Indeed, before the Court of Federal Claims, Appellants
“acknowledge[d] that there ‘appears to be no dispute as to
what RNR filed, when it was filed, and when or what the
Forest Service’s response was.’” Freeman II, 2016 WL
943859, at *3 (quoting Pl.’s Reply 3–4, Freeman v. United
States, No. 1:01-cv-00039-NBF, ECF No. 209). According-
ly, we find no error with the Court of Federal Claims’
discovery and evidentiary rulings.
CONCLUSION
We have considered Appellants’ remaining arguments
and find them unpersuasive. Accordingly, the Final
Judgment of the U.S. Court of Federal Claims is
AFFIRMED