Rancher Who Lost 354 Cows to Feds Can Sue

An Arizona cattle rancher can sue the U.S. Forest Service for seizing and selling nearly 400 of his herd, the Court of Federal Claims ruled. Though Daniel Gabino Martinez's land sits in the Apache-Sitgreaves National Forest, he refused to get federal permits so that his cattle could graze because he claimed that his water and forage rights entitled such use. The Forest Service issued a notice of trespass in February 2005, but Gabino Martinez refused to remove the cattle. Agents ultimately seized 354 of his cattle in November 2004, but Gabino Martinez waited until November 2011 to file suit. The government claimed that the complaint failed under the six-year statute of limitations, but Judge Eric Bruggink disagreed Thursday. "If impoundment of the cattle were grounds for asserting a taking, then presumably those impoundments which took place more than six years prior to the filing of the complaint could be dismissed as stale," Bruggink wrote. During oral arguments, however, the government's counsel argued the Forest Service's actions should be analyzed as the exercise of a police power, not as a taking. "If we agree with counsel that impoundment by the government would not create liability for a taking, then it is difficult to understand how plaintiff forfeited its taking claim by not suing before November 8, 2011," Bruggink wrote. Gabino Martinez maintains that since his cattle were not sold until December 2005, he was within the six-year statutory period when he filed suit in November 2011. The government claimed, however, that the clock started when it took possession of the cattle on Nov. 8, 2005. "We are reluctant to dismiss the action at this early stage, when plaintiff's theory is that the sale of the cattle constituted the taking, when it is the government's real position that neither the impoundment nor the sale would ever trigger a taking, when the government conduct was pursuant to a regulatory scheme, and when defendant's counsel ventured at oral argument that, if the claim was brought before the sale and viewed as a regulatory taking, 'then the government would have an argument that his claim is not ripe,'" Bruggink wrote.  Courthouse News