Case Summary
Issue:
Whether the federal government may seize property and/or take governmental action that significantly damages property or impairs its use?
Plaintiff:
Arron Marston and Judy Marston
Defendant:
United States of America; United States Forest Service; Thomas J. Vilsack, Secretary, U.S. Department of Agriculture; Abigail R. Kimbell, Chief, United States Forest Service; Craig Bobzien, Forest Supervisor, Black Hills National Forest; Lynn Kolund, District Ranger, Hell Canyon Ranger District, Black Hills National Forest
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Case History
Judy and Arron Marston own three unpatented mining claims in the Black Hills National Forest, South Dakota, called the D&R claims, which were located in the 1920s; Mrs. Marston inherited them in 2000.
On May 9, 2005, the U.S. Forest Service sent a letter to Mr. Marston soliciting comments regarding the Forest Service’s desire to install a gate on the mine’s adit to protect public safety and “sensitive” bat species allegedly hibernating in the mine. The following day, the Marstons contacted the Forest Service, and both parties agreed that a gate would not be installed.
On August 2, 2006, without advising the Marstons, the Forest Service bulldozed the shaft and trenches on the D&R claims. Then, on October 25, 2006, again without advising the Marstons, the Forest Service installed a locked gate on the adit.
In May of 2007, Mr. Marston discovered the actions taken and the damage done by the Forest Service. Notwithstanding demands by the Marstons, the Forest Service refused to pay for the damage it caused.
On July 30, 2008, the Marstons filed their claim as required by the Federal Tort Claims Act, as required by that Act prior to the filing of a lawsuit. On June 15, 2009, the Marstons filed a complaint in federal district court under the Federal Tort Claims Act. The federal defendants filed their answer to the complaint on August 31, 2009. On October 26, 2009, the court issued its scheduling order.
