After a wildfire occurred, the plaintiff claimed that hundreds of wild horses drank water from his Nevada land covered by a Bureau of Land Management (BLM) grazing permit. The United States owns and manages these horses. The plaintiff brought this lawsuit in the United States Court of Federal Claims alleging an illegal Fifth Amendment Taking for failing to manage the wild horses. At the time of the filing, the plaintiff claimed to have suffered over $800,000 in damages. The Claims Court dismissed the complaint for lack of subject-matter jurisdiction finding that government inaction cannot support a takings claim. The plaintiff appealed to the Court of Appeals for the Federal Circuit.
The Tucker Act gives the Claims Court jurisdiction to hear “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). Agreeing with the Claims Court, the Federal Circuit concluded that a takings claim must be based on an affirmative action and cannot be based on government inaction. See St. Bernard Parish Gov. v. United States, 887 F.3d 1354, 1360–61 (Fed. Cir. 2018). The plaintiff’s allegations included the government’s failure to manage the horses and its denial to the plaintiff’s requests to remedy the situation. Additionally, the Tucker Act does not give the Claims Court jurisdiction for tort claims.