Michael Etchegoinberry, Erik Clausen, Barlow Family Farms, L.p., Christopher Todd… v. United States

United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL ETCHEGOINBERRY, ERIK CLAUSEN,
BARLOW FAMILY FARMS, L.P., CHRISTOPHER
TODD ALLEN, FOR THEMSELVES AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-2196
______________________
Appeal from the United States Court of Federal Claims
in No. 1:11-cv-00564-ZNS, Judge Zachary N. Somers.
______________________
Decided: March 24, 2025
______________________
E RIC L AWRENCE KLEIN, Beveridge & Diamond P.C.,
Boston, MA, argued for plaintiffs-appellants. Also repre-
sented by EMMA DISMUKES; GUS B AUMAN, KAITLYN D.
SHANNON, Washington, DC.
A NDREW MARSHALL BERNIE , Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also rep-
resented by T ODD KIM .
______________________
Case: 23-2196 Document: 46 Page: 1 Filed: 03/24/2025

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ETCHEGOINBERRY v. US 2
Before MOORE , Chief Judge, HUGHES and C UNNINGHAM ,
Circuit Judges.
MOORE , Chief Judge.
Michael Etchegoinberry, Erik Clausen, Barlow Family
Farms, L.P., and Christopher Todd Allen, for themselves
and on behalf of all others similarly situated (collectively,
Appellants), appeal a decision of the United States Court
of Federal Claims dismissing their Fifth Amendment tak-
ings claim for lack of subject matter jurisdiction under Rule
of the United States Court of Federal Claims (RCFC)
12(h)(3). Etchegoinberry v. United States, 165 Fed. Cl. 696,
729 (2023) (2023 Decision). For the following reasons, we
affirm.
B ACKGROUND
In 1960, Congress passed the San Luis Act to provide
irrigation water for the San Luis Unit in the San Joaquin
Valley of California. Pub. L. 86-488, 74 Stat. 156 (1960).
Section 1(a) of the San Luis Act conditioned construction of
the San Luis Unit on the United States “receiv[ing] satis-
factory assurance from the State of California that it will
make provision for a master drainage outlet and disposal
channel . . . or has made provision for constructing the San
Luis interceptor drain to the delta designed to meet the
drainage requirements of the San Luis unit.” Id. In 1962,
the Secretary of the Interior reported to Congress that the
Department of the Interior (DOI), through the Bureau of
Reclamation (Reclamation), would construct the San Luis
Drain. Etchegoinberry v. United States, 114 Fed. Cl. 437,
443 (2013) (2013 Decision).
Appellants own land in the Westlands Water District,
a district within the San Luis Unit. In 1967, Reclamation
began delivering water to the Westlands. J.A. 304. Con-
struction of the San Luis Drain began in 1968 but was
never completed due to environmental and economic
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ETCHEGOINBERRY v. US 3
concerns. See 2023 Decision at 701–04. While Reclamation
provided drainage for a small portion of the Westlands
from 1976 to 1986, it is undisputed no drainage has oc-
curred since then. 2013 Decision at 447.
Litigation over the provision of drainage, or lack
thereof, ensued and continues to this day. J.A. 308–325;
2023 Decision at 704–10. On September 2, 2011, Appel-
lants filed the instant case in the Court of Federal Claims
alleging the United States took their property for public
use without just compensation in violation of the Fifth
Amendment. J.A. 2916. Specifically, Appellants alleged,
because the United States did not provide the drainage it
was obligated to provide, “the combined effect of the rising
water table and the accumulation of saline groundwater
beneath and upon their properties has deprived [Appel-
lants] of the benefit of the productive use of their farm-
lands, and the value of their farmlands has been reduced.”
J.A. 2918. This resulted in an alleged taking of, at least,
“flowage and seepage easements upon [Appellants’] lands.”
J.A. 2942.
The United States filed a motion to dismiss for lack of
subject matter jurisdiction. 2013 Decision at 473. The
United States argued Appellants’ claim was time-barred by
the statute of limitations, which requires filing of claims
such as this against the United States within six years of
claim accrual. 28 U.S.C. § 2501. Appellants argued the
stabilization doctrine should apply, and their claim did not
stabilize, and therefore accrue, until at least 2008, making
it timely.1 2013 Decision at 478. The Court of Federal
Claims agreed with Appellants that the stabilization doc-
trine applied and Appellants’ claim did not accrue more
1 Because Appellants filed the instant case on Sep-
tember 2, 2011, the critical date for statute of limitations
purposes is September 2, 2005. See 28 U.S.C. § 2501.
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ETCHEGOINBERRY v. US 4
than six years before the filing date, and denied the motion
to dismiss. Id. at 498.
This case was then stayed for nearly seven years while
the parties attempted settlement. 2023 Decision at 708. In
2020, the stay was lifted and the United States filed a mo-
tion to dismiss for failure to state a claim under RCFC
12(b)(6). Id. During briefing for the motion, the judge on
the case took senior status and the case was reassigned.
J.A. 2969. In 2023, the Court of Federal Claims sua sponte
dismissed the case for lack of subject matter jurisdiction
under RCFC 12(h)(3), holding the stabilization doctrine did
not apply and Appellants’ claim was time-barred. 2023 De-
cision at 700. Appellants appeal. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
DISCUSSION
I. The Law-of-the-Case Doctrine
Appellants argue the Court of Federal Claims in 2023
(the 2023 court) abused its discretion by revisiting an issue
already settled by the Court of Federal Claims in 2013 (the
2013 court). Appellants’ Br. 11–27. We do not agree. We
review whether a lower court erred in not applying the law-
of-the-case doctrine for abuse of discretion. Arizona v. Cal-
ifornia, 460 U.S. 605, 618 (1983) (“Law of the case directs
a court’s discretion, it does not limit the tribunal’s power.”).
The law-of-the-case doctrine “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.” Id. at 618. The doctrine, however, “merely expresses
the practice of courts generally to refuse to reopen what has
been decided, not a limit to their power.” Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)
(quoting Messinger v. Anderson, 225 U.S. 436, 444 (1912)).
Courts can therefore revisit prior decisions, but they should
exercise discretion in reopening matters already decided,
absent extraordinary circumstances. See id.
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ETCHEGOINBERRY v. US 5
The 2023 court did not abuse its discretion in revisiting
the issue of subject matter jurisdiction. The court ex-
plained it did not concur with the 2013 decision that Appel-
lants’ complaint was filed within six years of the date the
claim accrued. 2023 Decision at 700. The court noted it
must dismiss an action if, at any time, it determines sub-
ject matter jurisdiction is lacking, regardless of the law of
the case. Id. at n.2 (citing RCFC 12(h)(3)). The court ex-
plained the law-of-the-case doctrine cannot trump the lim-
itations of Tucker Act jurisdiction, the prior jurisdictional
decision was in error, and continuing the litigation would
result in manifest injustice. Id.
Appellants argue the 2023 court was not required by
RCFC 12(h)(3) to determine subject matter jurisdiction un-
der 28 U.S.C. § 2501 because that statute provides for stat-
utory, not constitutional, jurisdiction, which does not need
to be determined before addressing the merits of a case.
Appellants’ Br. 12. We do not agree. While some statutory
requirements may not be “jurisdictional” such that they
must be answered prior to addressing the merits of a dis-
pute, Minesen Co. v. McHugh, 671 F.3d 1332, 1337 (Fed.
Cir. 2012), the Supreme Court made clear the require-
ments of 28 U.S.C. § 2501 are unwaivable, “absolute,” and
correctly considered sua sponte, John R. Sand & Gravel Co.
v. United States, 552 U.S. 130, 133–34 (2008). Even accept-
ing Appellants’ argument that the 2023 court was not re-
quired to revisit whether Appellants satisfied 28 U.S.C.
§ 2501, it was not an abuse of discretion for the 2023 court
to dismiss the case for lack of subject matter jurisdiction
sua sponte.
Appellants argue the 2023 court did not establish “ex-
ceptional circumstances” to warrant revisiting the 2013
court’s decision. Appellants’ Br. 14. Appellants posit the
law-of-the-case doctrine allows a court to revisit a decided
issue only when there “(1) is new and material evidence; (2)
the controlling law changed; or (3) the earlier decision is
‘clearly erroneous and would lead to manifest injustice.’”
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ETCHEGOINBERRY v. US 6
Appellants’ Br. 17 (citing McGuire v. United States, 707
F.3d 1351, 1365 (Fed. Cir. 2013) (Reyna, J., concurring)).
But the law-of-the-case doctrine is not so rigid. As the Su-
preme Court explained in Christianson, “[a] court has the
power to revisit prior decisions of its own,” but “courts
should be loathe [sic] to do so in the absence of extraordi-
nary circumstances such as where the initial decision was
‘clearly erroneous and would work a manifest injustice.’”
486 U.S. at 817 (quoting Arizona, 460 U.S. at 618 n.8.) (em-
phasis added). It was not an abuse of discretion for the
2023 court to decide the law-of-the-case doctrine does not
overcome the jurisdictional requirements of 28 U.S.C.
§ 2501 and RCFC 12(h)(3) and “continuing this litigation
would work a manifest injustice on the parties.” 2023 De-
cision at 700 n.2. While the Court of Federal Claims should
be loath to revisit settled issues, here, the 2023 court did
not abuse its discretion in revisiting the 2013 court’s deci-
sion.2
II. Subject Matter Jurisdiction
Appellants argue their takings claim is timely under
the stabilization doctrine. Appellants’ Br. 27–49. The
United States argues the stabilization doctrine does not ap-
ply, but even if it did, the claim stabilized before the critical
date of September 2, 2005. Resp. Br. 30–49. We agree with
the United States. We review a decision by the Court of
Federal Claims to dismiss a case for lack of subject matter
2 Moreover, an appellate court “is not bound by dis-
trict court rulings under the law-of-the-case doctrine.” Mu-
sacchio v. United States, 577 U.S. 237, 245 (2016). Our
“function is to revisit matters decided in the trial court.”
Id. (emphasis in original). Even if the 2023 court had
abused its discretion in revisiting the issue of subject mat-
ter jurisdiction, we would still have the power to review the
issue on appeal.
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ETCHEGOINBERRY v. US 7
jurisdiction de novo. Diversified Grp. Inc. v. United States,
841 F.3d 975, 980 (Fed. Cir. 2016).
Typically, a takings claim accrues when “all the events
which fix the government’s alleged liability have occurred
and the plaintiff was or should have been aware of their
existence.” Hopland Band of Pomo Indians v. United
States, 855 F.2d 1573, 1577 (Fed. Cir. 1988) (emphasis in
original). The stabilization doctrine postpones accrual of a
takings claim “until the situation becomes stabilized” and
“consequences of inundation have so manifested them-
selves that a final account may be struck.” United States
v. Dickinson, 331 U.S. 745, 749 (1947). In such a case, a
plaintiff’s claim accrues, and he must bring suit for pur-
poses of 28 U.S.C. § 2501, “once it is clear that the process
has resulted in a permanent taking and the extent of the
damage is reasonably foreseeable.” Boling v. United
States, 220 F.3d 1365, 1371 (Fed. Cir. 2000). Importantly,
the stabilization doctrine applies to “irregular,” id. at 1373,
or “intermittent,” Dickinson, 331 U.S. at 747, physical pro-
cesses of which the permanent effect on the land is difficult
to pinpoint.
The stabilization doctrine does not apply to Appellants’
claim. Appellants alleged the taking as the “full productive
use of their farmlands,” by the United States through non-
performance of its statutory duty to provide drainage. E.g.,
J.A. 2942. This is not a flooding case like Dickinson, where
the government constructed a dam, resulting in a “contin-
uing process of physical events” that eroded the plaintiffs’
land over time. 331 U.S. at 749. Appellants here irrigated
their land for over forty years knowing the United States
had not provided any drainage.3 The lack of drainage did
3 This case has consistently been argued as a single
taking—failure to provide drainage stemming from at least
1986. We leave open the question of whether there exists
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ETCHEGOINBERRY v. US 8
not change at any point in this time period. As the Court
of Federal Claims suggested, “the provision of irrigation
water was regular, consistent, and recurring, and not a
slow, gradual, physical process that may (or may not) even-
tually lead to a taking.” 2023 Decision at 714.
Appellants also argue the stabilization doctrine applies
because the harm to their land is irregular or intermittent.
See, e.g., Appellants’ Br. 33. We do not agree. The uncon-
tested fact is: Appellants have applied fresh water to their
lands without the United States providing any drainage
since at least 1986. J.A. 2931. Appellants knew this re-
sulted in regular damage to their land. 2013 Decision at
441–42 (“The parties have stipulated that when fresh wa-
ter is brought in to irrigate an agricultural area, salty wa-
ter, which remains after crops have been irrigated, must be
carried back out in order to avoid a build-up of salt in the
soil.”); see also J.A. 2942 (accumulation of saline groundwa-
ter beneath and upon Appellants’ properties is “inevitably
recurring,” an “inevitable consequence,” and “the direct
and foreseeable result”). In fact, some Appellants alleged
over thirty years ago their land was “rendered barren by
excess salt.” Sumner Peck Ranch, Inc. v. Bureau of Recla-
mation, 823 F. Supp. 715, 722 (E.D. Cal. 1993); Resp. Br.
35. It cannot be the case that Appellants’ land was barren
in 1992, but the harm was irregular and intermittent until
after 2005.
Relying on Applegate v. United States, 25 F.3d 1597,
1583 (Fed. Cir. 1994), Appellants argue the stabilization
doctrine applies because they were reasonably uncertain of
a scenario more akin to flooding for which multiple takings,
each with a separate statute of limitations, could exist, be-
cause Appellants have made clear this is not their claim.
See, e.g., Oral Arg. at 11:45, 13:30 (available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=23
-2196_02042025.mp3).
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ETCHEGOINBERRY v. US 9
the permanence of the damage to their land due to the
United States’ promises of future mitigation. Appellants’
Br. 34–45. In Applegate, the government constructed two
jetties that led to a slow, gradual erosion of plaintiffs’ land.
25 F.3d at 1580. The gradual nature of the erosion, com-
bined with the government’s efforts to replace the sand, led
plaintiffs to be uncertain “if their land would be perma-
nently destroyed.” Id. at 1582. But here, any potential
plans for drainage by the United States did not obviate Ap-
pellants’ obligation to bring a timely claim regarding their
land. See 2023 Decision at 714 (“Yes, there was for some
period uncertainty about whether drainage facilities would
be built . . . but the alleged physical occupation here is not
the failure to build drainage facilities—it is the flowage or
seepage easement that resulted from that failure.”). The
provision of irrigation water was known and regular, un-
like the gradual erosion of plaintiffs’ land in Applegate. If
Appellants were right that the accrual of any takings claim
could be postponed through the government’s promises of
mitigation, there would be an “unending conflict with the
statute of limitations.” Gustine Land & Cattle Co. v.
United States, 174 Ct. Cl. 556, 656 (1966).
Moreover, even if the stabilization doctrine did apply
due to the United States’ promises to provide drainage, Ap-
pellants’ claim stabilized before the critical date of Septem-
ber 2, 2005. It is Appellants’ burden to show they were
justifiably uncertain about the permanence of the taking
until at least September 2, 2005. Diversified, 841 F.3d at
980. Appellants argue they were justifiably uncertain
about the permanence of the taking due to the United
States’ promises to provide drainage, such that their claim
did not stabilize until 2010. Appellants’ Br. 34–45. For
example, in 1986, the United States stipulated to a judg-
ment in a different litigation “pledging to complete a drain-
age plan by 1991.” 2013 Decision at 488; J.A. 308. In 1989,
Reclamation formed the San Luis Unit Drainage Program
“to identify and implement an agricultural drainage plan
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ETCHEGOINBERRY v. US 10
for the San Luis Unit.” 2013 Decision at 489; J.A. 309. In
1995, a district court ruled the San Luis Act established a
statutory duty to provide drainage, J.A. 313, which the
Ninth Circuit affirmed in 2000, Firebaugh Canal Co. v.
United States, 203 F.3d 568, 578 (9th Cir. 2000). In 2007,
Reclamation issued a Record of Decision proposing two al-
ternatives for federal provision of drainage services. J.A.
319; J.A. 724–64. In light of these events, Appellants argue
it was not until Reclamation sent a letter to Senator Di-
anne Feinstein in 2010 suggesting responsibility for a long-
term drainage solution should be shifted to the water dis-
tricts that Appellants should have realized the taking was
permanent and their claim had stabilized. 2013 Decision
at 494; J.A. 2201–05.
Appellants’ arguments do not rise to the level of justi-
fiable uncertainty about the permanence of the taking pre-
venting accrual of their claim until September 2, 2005.
While the United States may have conducted studies and
issued reports regarding the feasibility of potential drain-
age construction, actions taken by the United States should
have alerted Appellants as to the permanence of their
claim before September 2, 2005. For example, Congress
repeatedly passed appropriations riders “prohibiting selec-
tion of a final point of discharge for the San Luis intercep-
tor drain until certain conditions were met,” which
Appellants do not allege have been met to this day. 2023
Decision at 723. In the early 1990s, the United States pub-
licly “denied that any statutory duty exists to provide
drainage.” Sumner Peck, 823 F. Supp. at 748. And, tell-
ingly, some Appellants brought a similar, if not this exact,
claim over thirty years ago. Id. at 722; Resp. Br. 35. While
a close call, these events, along with others recounted in
more detail by the 2023 court, show Appellants were not
justifiably uncertain about the permanence of the alleged
taking before the critical date of September 2, 2005. See
generally 2023 Decision at 722–29.
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ETCHEGOINBERRY v. US 11
C ONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. The Court of Federal Claims
did not abuse its discretion in sua sponte revisiting subject
matter jurisdiction. The stabilization doctrine does not ap-
ply to Appellants’ alleged takings claim and, even if it did,
Appellants’ claim accrued before September 2, 2005. We
affirm the Court of Federal Claims’ dismissal for lack of
subject matter jurisdiction.
AFFIRMED
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