RANCHO VISTA DEL MAR et al v. USA

Filing 37

REPORTED ORDER denying 32 Defendant's MOTION to Dismiss Amended Complaint; (Response to amended complaint due by 10/15/2024., Joint Preliminary Status Report due by 11/12/2024). Signed by Judge David A. Tapp. (jjg) Service on parties made.

In the United States Court of Federal Claims
No. 23-125
Filed: September 24, 2024

RANCHO VISTA DEL MAR, et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
Roger J. Marzulla and Nancie G. Marzulla, Marzulla Law, LLC, Washington, D.C., for
Plaintiffs.
Anthony P. Hoang, Attorney of Record, Todd Kim, Assistant Attorney General, Environment &
Natural Resources Division, U.S. Department of Justice, with Robert Walker, Thomas Miller,
and Michael Felts, Of Counsel, United States Department of Homeland Security; also joined by
Daniel Inkelas and Amy Kirby, Of Counsel, United States Army Corps of Engineers,
Washington, D.C., for Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
The standard for adequate pleadings is plausibility, not perfection. In this case, a group of
property owners with land bordering Mexico initiated suit against the United States for an
alleged uncompensated taking in violation of the Fifth Amendment. The dispute arose after the
government leased the property owners’ land planning to construct a border fence; this plan was
later terminated before construction was final, leaving a gap in the nation’s border wall.
Following the project’s abandonment, claimants asserted that the resulting debris, continued
immigration flow, and environmental damage constituted a physical taking of their property.
The pending motion presents the second iteration of the United States’ effort to garner
dismissal of those claims. In its initial, partially successful motion, the United States argued that
it could not be held liable for the action or inaction of third parties. The Court dismissed the
claims related to increased immigration and denied the United States’ motion as it related to
claims on construction debris and environmental damage. In an Amended Complaint, Plaintiffs
submitted additional information regarding the construction debris and the United States’
physical invasion, as ordered by the Court, and reframed many of the allegations regarding
immigrant flow, which the Court did not order. The United States persists with its original
arguments. The Court finds that Plaintiffs adequately addressed the concerns raised in the

Court’s prior opinion and crossed the threshold of plausibility. Consequently, the United States’
repetitive Motion to Dismiss, (Def.’s Mot. to Dismiss. (“Def.’s Mot.”), ECF No. 32), is denied.
I.

Background 1

Plaintiffs, Rancho Vista Del Mar, Otay International, LLC, Otay Mesa Property, L.P.,
and D&D Landholdings (referred to singularly as “Rancho Vista”), are the owners of 791.11
acres of borderland in San Diego County, California. (Am. Compl. at 3–4, ECF No. 26). Rancho
Vista initiated this suit to recover for “the physical taking of an easement for ingress and egress
over [Plaintiffs’] properties[,]” without payment of just compensation, in violation of the Fifth
Amendment. (Id. at 1).

AM. COMPL. EX. 1, ECF NO. 26-1.

Semantics describing the events leading up to the “taking” are disputed. Rancho Vista
alleges that the taking here stems from the Government’s active construction of a “700-foot-wide
de facto gateway in the border fence immediately next to the Rancho Vista properties[.]” (Id.).

1

A comprehensive recitation of facts can be found in the Court’s Opinion regarding the United
States’ previous Motion to Dismiss. Rancho Vista Del Mar v. United States, 169 Fed. Cl. 299,
301 (2024). The Court adopts the factual recitation from that Opinion and will only discuss the
facts relevant to the current motion.
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The United States characterizes the events
as inaction, stating that “the Government
did not finish construction of a 700-foot
section of border fence on land next to
Plaintiffs’ properties.” (Def.’s Mot. at 4).
And the Court has described the series of
events as “abandonment of the construction
site[.]” Rancho Vista Del Mar v. United
States, 169 Fed. Cl. 299, 302 (2024);
(docketed at ECF No. 23). Putting aside the
trees for the forest, what we know is that the
United States began constructing a border
wall (“the San Diego 4”); before the wall
was complete and contiguous, the United
States stopped construction; the result is a
700-foot gap on federally owned land next
to Rancho Vista’s properties. (See Am.
AM. COMPL. EX. 5, ECF NO 26-5.
Compl. at 9–10 (“On March 21, 2019, Rancho
Vista deeded a parcel of 17.04 acres to the
Government to construct the border fence.”) (“As constructed, the San Diego border fence now
runs continuously from the Pacific Ocean to a point near the Rancho Vista properties, where the
Government has left an open and unfenced gateway about 700 feet wide, then continues
eastward for several miles.”); see also Am. Compl. Ex. 40, ECF No. 26-40).
Rancho Vista filed this suit in 2023 stemming from the lingering effects of the halt in
construction. (See generally Compl., ECF No. 1). Rancho Vista initially asserted that the gap in
the border wall facilitated increased undocumented immigration across their land, leading to a
taking. (Compl. at 10). As to the deeded property, Rancho Vista claimed the United States did
not complete its work nor cleanup in violation of their previous agreement. (Id. at 8). Rancho
Vista argued that the United States abandoned the site, leaving behind specialized water pipes
intended to manage stormwater runoff. (Id.). This, it claims, led to erosion and sediment buildup
on the properties due to the natural flow of rainwater. (Id. at 9–10).
After the United States’ initial motion to dismiss, (ECF No. 10), the Court rejected
Rancho Vista’s assertion that unlawful trespass by migrants could constitute a compensable
taking. Rancho Vista Del Mar, 169 Fed. Cl. at 304 (“Rancho Vista’s claim as to immigrant flow
must be dismissed for failure to state a claim.”). The Court also iterated the well-settled law that
takings claims rooted in the government’s inaction are foreclosed, but not those that are direct
results of “affirmative acts.” Id. at 305; Bd. of Supervisors of Issaquena Cnty v. United States, 84
F.4th 1359, 1365 (Fed. Cir. 2023) (“. . . as we have held, ‘takings liability must be premised on
affirmative government acts.’”) (citing St. Bernard Parish Gov’t v. United States, 887 F.3d 1354,
1362 (Fed. Cir. 2018)). The Court found that to survive the motion to dismiss, those affirmative
“allegations must be clearly pled in the Complaint[,]” and the initial Complaint, “[fell] short of
that standard.” Id. (internal citations omitted).
As to Rancho Vista’s environmental claims, the Court allowed it to amend its Complaint
to articulate the correct theory about inaction and causation. Id. at 306 (relying on Bd. of
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sites to track illegal migrant movements, “trample and damage [Plaintiffs’] environmentally
sensitive land.” (Id. at 11).
Rancho Vista asserts that, but for the recently-enacted border policies, it “would not have
experienced the dramatic surge in unauthorized entry onto their parcels, Border Patrol activity on
[Plaintiffs’] properties, the extensive damage and destruction of the land and fragile vegetation
and fauna species habitat, and the destruction of [Plaintiffs’] right to exclude others from
[Plaintiffs’] parcels.” (Id.). As a result, Rancho Vista claims that the United States’ actions
resulted in “the taking of an easement for ingress and egress over [Plaintiffs’] lands and
habitat[.]” (Id.).
II.

Analysis

Under the premise that Rancho Vista failed to follow the Court’s direction to cure its
defective complaint, the United States moves for dismissal, reviving many of its previous
arguments. (See generally Def.’s Mot.). Primarily, the United States asserts that Rancho Vista
“fail[s] ‘to allege additional facts with regards to its construction debris and environmental
damage claims’ that adequately state a claim for which the Court can grant relief.” (Id. at 4). The
United States reads Rancho Vista’s Amended Complaint to “recharacterize the gap that the
United States had left in its construction of the border wall[,]” as an active, affirmative
construction of a 700-foot de facto gateway. (Id. (citing Am. Compl. at 1)). Thus, the United
States reasserts the argument that a taking, in this instance, cannot be based on inaction. (Id. at
5–7). It goes on to argue that “any claim premised on unlawful migrants entering Plaintiffs’
property must be dismissed, because the United States is not liable for the actions of third parties,
particularly in this case where any alleged action would be in violation of Federal law.” (Id. at 7
(internal citations omitted)).
For its part, Rancho Vista responds that its amended claims are grounded in action, not
inaction. (Pl.’s Resp. at 9–11, ECF No. 33). It asserts that the United States misunderstands
Rancho Vista’s revised claims, as well as the landscape of takings case law. (Id. at 9–15).
Specifically, Rancho Vista states that the Amended Complaint properly alleges a permanent
physical occupation by “government agents, their vehicles, and equipment of the subject
properties.” (Id. at 20–23). Accepting all its allegations as true, the Court concludes that Ranch
Vista has plausibly alleged affirmative actions by the United States that could warrant relief.
Under RCFC 12(b)(6), the Court can dismiss a claim for “failure to state a claim upon
which relief can be granted.” Such a motion may be granted only “when the facts asserted by the
claimant do not entitle [it] to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257
(Fed. Cir. 2002). That occurs when “no additional proceedings would enable the plaintiff to
prove facts entitling him or her to prevail.” Northrop Grumman Corp. v. United States, 63 Fed.
Cl. 38, 41 (2004). In deciding a motion to dismiss for failure to state a claim pursuant to RCFC
12(b)(6), the Court views the facts in the light most favorable to the plaintiff and accepts as true
all factual allegations — but not conclusory legal assertions — contained in the complaint. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); see also Am. Bankers Ass'n v. United
States, 932 F.3d 1375, 1380 (Fed. Cir. 2019). For a claim to be properly stated the pleading
“must contain sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). However, “[t]hreadbare
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recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555). Those facts must yield a “reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. A plaintiff may not simply
plead “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (citations omitted). “Determining whether a complaint states a
plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
As to the United States’ argument that it cannot be liable for actions by third parties,
(Def.’s Mot. at 7–9), any ruling on this would result in an echo chamber. This issue is mooted by
the law of the case doctrine as it has been decided. Rancho Vista Del Mar, 169 Fed. Cl. at 301
(“Because the United States cannot be held liable for third parties’ actions, the Court dismisses
Rancho Vista's Fifth Amendment claims based on increased immigration flow onto their
property.”). The law of the case doctrine provides that “when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same case.”
Arizona v. California, 460 U.S. 605, 618 (1983), decision supplemented, 466 U.S. 144 (1984).
The United States Supreme Court has stated that “the doctrine [of law of the case] posits that
when a court decides upon a rule of law, that decision should continue to govern the same issues
in subsequent stages in the same case.” Arizona, 460 U.S. 618 (citation and footnote omitted),
reh’g denied, 462 U.S. 1146 (1983), supplemented by 466 U.S. 144 (1984); see also Agostini v.
Felton, 521 U.S. 203, 236 (1997). Nevertheless, the “law of the case doctrine is limited to issues
that were actually decided, either explicitly or by necessary implication, in the earlier litigation.”
Toro Co. v. White Consol. Indus., Inc., 383 F.3d 1326, 1335 (Fed. Cir. 2004) (citation omitted)
(emphasis added), reh’g en banc denied (2004), cert. denied, 544 U.S. 948 (2005); see also Kori
Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir.), cert. denied, 474
U.S. 902 (1985).
The Court ruled in January that Rancho Vista was barred from basing its takings claim on
the actions of third parties. Rancho Vista Del Mar, 169 Fed. Cl. 303–04 (“[T]he Court rejects
Rancho Vista's argument that unlawful trespass by migrants can constitute a compensable
taking.”). The United States is correct in that Rancho Vista’s amendment does reflect third-party
actions, namely:
1) “Because the border fence blocks entry to the east and west of the Rancho Vista gateway,
undocumented aliens are funneled toward the open gateway, across the border, and onto
Rancho Vista’s property daily.” (Am. Compl. at 10).
2) “The individuals entering through the Rancho Vista gateway immediately find a path,
seeking to traverse about a mile across the privately owned land to reach a public road
away from the border.” (Id.).
3) “Aliens regularly travel from the gateway across Rancho Vista’s properties to roads away
from the border.” (Id. at 11).
The Court did not order Rancho Vista to put lipstick on its existing claim, but rather made
substantive rulings as to whether it could go forward. The parties should make no mistake—the

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allegations relating solely to illegal immigrant crossing cannot form the basis of Rancho Vista’s
takings claim. 2
Complaints often allege facts for atmosphere or effect; “plaintiffs need not prove the truth
of every paragraph in a complaint to succeed in their suits.” Hayes v. Dep't of Educ. of City of
New York, 20 F. Supp. 3d 438, 446 (S.D.N.Y. 2014). The reality is that pleadings do not always
qualify as perfect; but the law requires no such perfection. See Twombly, 550 U.S. at 557. So
while the facts surrounding third party cannot serve as the basis for a takings claim, they are not
the only facts and theories alleged. There is no reason to require amendment or strike the
relevant portions of Rancho Vista’s pleading. In other words, damages resulting purely from the
acts of trespassing immigrants do not constitute a takings, but neither are these facts erased from
the stark reality that exists along this portion of the border. Damages resulting from acts of the
United States in response to the increased migrant flow may be actionable. The United States
cannot create a situation adversely impacting Rancho Vista’s properties, claim inaction, and then
permissibly and continually intrude on that property with its agents and equipment.
The United States posits that Rancho Vista’s amended claims fall short of pleading
standards because they are reframed versions of government inaction. (Def.’s Mot. at 5 (citing St.
Bernard Parish, 887 F.3d at 1360–62 (Fed. Cir. 2018) (overturning trial court opinion and
holding that “[o]n a takings theory, the government cannot be [held] liable for failure to act, but
only for affirmative acts”); Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1341
(Fed. Cir. 2018) (holding that Congress’s failure to repeal an amendment was not actionable
because “government inaction cannot be the basis for takings liability”); Bench Creek Ranch,
LLC v. United States, 855 F. App’x 726, 726-27 (Fed. Cir. 2021) (upholding dismissal of takings
claim based on failure to act); Alves v. United States, 133 F.3d 1454, 1458 (Fed. Cir. 1998)
(affirming dismissal of takings claim based on action by a third party because “[t]here was no
governmental action [in that case] at all”); see also Ga. Power Co. v. United States, 633 F.2d
554, 557 (Ct. Cl. 1980) (holding that the Government’s failure to regulate mast and antenna
heights was not actionable because “a taking may not result from [] discretionary inaction”)).
The
In St. Bernard Parish Government v. United States, the Federal Circuit rejected a takings
claim, explaining that while “the theory that the government failed to maintain or modify a
government-constructed project may state a tort claim, it does not state a takings claim.” 3 887
F.3d at 1358, 1360. Under St. Bernard, the property loss compensable as a taking must be linked
to an “asserted invasion [that] is the direct, natural, or probable result of authorized government

2

The Court understands that Rancho Vista disputes this (Pls.’ Resp. at 11 n.65, (“Rancho Vista
acknowledges that the Court, in granting the Government’s motion to dismiss the original
complaint, held that invasion by undocumented entrants alone was not a taking. Rancho Vista
provides this argument here to preserve its position regarding that issue.”), 17–20), and
acknowledges preservation of those arguments.
3

Here, when directly asked if the United States claimed that its action sounded in tort, the United
States demurred. (Second OA Tr. 25:6–15).
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action.” Id. at 1360. Under St. Bernard Parish, property owners must also establish that they
would not have suffered the injury “in the ordinary course of events, absent government action.”
887 F.3d at 1362 (causation analysis). In the flooding context, this means plaintiffs must show
that their land is more burdened by flooding than it would have been prior to construction. Bd. of
Supervisors of Issaquena Cnty v. United States, 84 F.4th 1359, 1366 (Fed. Cir. 2023).
The Federal Circuit further reiterated that St. Bernard Parish forecloses takings claims
rooted in the government’s inaction, but not those that are direct results of “affirmative acts.” St.
Bernard Parish, 887 F.3d at 1362; Compare Arkansas Game and Fish Commission v. United
States, 568 U.S. 23, 27–28 (2018) (noting a basis for a takings claim existed when the
government released water from a “government constructed and operated dam” which flooded
the plaintiff’s property), and Ridge Line, Inc. v. United States, 346 F.3d 1346, 1352 (Fed. Cir.
2003) (finding the United States Postal Service constructed a facility that increased water runoff
onto plaintiff’s property), with United States v. Sponenbarger, 308 U.S 256, 265 (1939) (finding
no taking when the United States constructed flood protection system that was inadequate to
protect plaintiff’s property from a pre-existing flood hazard), and Georgia Power Co. v. United
States, 633 F.2d 554, 527 (Ct. Cl. 1980), cert denied, 450 U.S. 981 (1981) (holding the United
States’ failure to regulate sailboat masts heights that intruded on plaintiff’s property was
“discretionary inaction” which cannot form the basis for takings liability absent a duty to act).
The Court directed Rancho Vista to conform with St. Bernard Parrish, and “explain why
additional construction left Rancho Vista in a worse place than it would have been with the prior
wider gap in the border wall.” Rancho Vista Del Mar, 169 Fed. Cl. at 305 (citing 84 F.4th at
1369 (“To the extent that the Board is alleging that the construction of the Backwater Project
caused flooding,” as opposed to government inaction, “the complaint fails to explain (or even
directly allege) how the Project brought about a worse result than would have occurred
anyway.”); see also e.g., In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs,
138 Fed. Cl. 658, 662 (Fed. Cl. 2018) (causation was satisfied when the Army Corp had
conceded that under its flood control project the surrounding areas might be flooded, leaving
plaintiffs worse off, and that the project “could result in lawsuits against the Corps of Engineers
for flooding private lands”)).
Rancho Vista admittedly forfeits its erosion and environmental claims. (Second OA Tr.
4:24–5:2, ECF No. 36). Reading Rancho Vista’s Amended Complaint in a favorable light, it
alleges other affirmative acts on behalf of the government, including:
1) “The border patrol agents either detain the individuals at the gate or deploy agents and
equipment, including ATVs— all over the subject properties—to intercept the individuals
on the subject properties.” (Am. Compl. at 10).
2) “During patrol, the Border Patrol’s all-terrain vehicles trample and damage Rancho
Vista’s environmentally sensitive land.” (Id. at 11).
3) “The Border Patrol also stations trailer-mounted sensor and light towers at various
locations on Rancho Vista’s properties to detect alien traffic, hauling the towers from one

8

location to another at its own discretion and without consent from or notice to Rancho
Vista.” 4 (Id.).
4) “Due to US policies, Border Patrol activity on its properties, the extensive damage and
destruction of the land and fragile vegetation and fauna species habitat, and the
destruction of their right to exclude others from their parcels.” (Id.).
5) “Had the Government not initiated these programs and policies beginning in January
2021, authorizing and encouraging undocumented aliens to enter the United States at the
Rancho Vista gateway and elsewhere, Rancho Vista would not have experienced the
dramatic surge in unauthorized entry onto their parcels.” (Id.).
Whether there is merit to Rancho Vista’s claims or whether facts show that its claims are actually
tied to inaction remains to be seen. It is speculative, but speculation cannot overcome the low
standard of plausibility. Twombly, 550 U.S. at 557 (“To survive a motion to dismiss the
allegations in the complaint must raise a right to relief above the speculative level.”). These
recently updated allegations push Rancho Vista’s claims “across the line from conceivable to
plausible.” Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570). Thus, they survive the
United States’ Motion.
During oral argument on this second Motion to Dismiss, the United States argued that
any Border Patrol activities occurring on Rancho Vista’s property were privileged as “legitimate
law enforcement” functions. (Second OA Tr. 22:25–23:7). While there may be some merit to the
United States’ assertion, this argument was not raised in its Motion to Dismiss. (See generally
Def.’s Mot.). A court need not consider new arguments raised for the first time at oral argument.
Raytheon Co. v. United States, 96 Fed. Cl. 548, 555 (2011). Therefore, the Court declines to
decide this issue at this stage of proceedings.
III.

Conclusion

Complaints must simply cross a threshold of plausibility. Rancho Vista has crossed that
threshold. Accordingly, the Court DENIES the United States’ Motion to Dismiss, (ECF No. 32).
Pursuant to this Opinion, the Court reiterates that while claims relating to damages arising from
the illegal acts of third parties are precluded, discovery regarding these facts are not constrained
by this opinion to the extent that they relate to the government’s response.

4

Placement of sensors on Plaintiffs’ land to detect migrants would seem to fairly fall within Otay
Mesa. Otay Mesa Property, L.P. v. United States, 670 F.3d 1358, 1365 (Fed. Cir. 20212)
(finding the Border Patrol’s blanket easement “to install, maintain, and service sensors” on
plaintiff’s property “constituted a permanent physical taking”).
9

Given the pendency of this case and its procedural history, the Court believes that it is
necessary to expedite the initial filings. The United States is directed to file a responsive pleading
on October 15, 2024. The parties’ Joint Preliminary Status Report shall be filed on or by
November 12, 2024. The parties shall propose an expeditious schedule and immediately engage
in discovery efforts.
IT IS SO ORDERED.
s/
David A. Tapp
DAVID A. TAPP, Judge

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