IN THE UNITED STATES COURT OF FEDERAL CLAIMS

BENCH CREEK RANCH, LLC,

PAUL PLOUVIEZ,

Plaintiffs,

v. Case No. ________________________

UNITED STATES DEPARTMENT

OF THE INTERIOR - BUREAU OF LAND

MANAGEMENT,

Defendant.

COMPLAINT FOR VIOLATION OF THE FIFTH AMENDMENT AND FOR

JUST COMPENSATION UNDER 28 U.S.C. § 1491

COMES NOW, Plaintiffs Bench Creek Ranch, LLC and Paul Plouviez, and

files this Complaint seeking just compensation for the taking of property as

provided for by the Fifth Amendment to the United States Constitution.

Compensation is now due and owing pursuant to 28 U.S.C. § 1491. Plaintiffs allege

that the Defendant, by and through its agencies and employees, has severely

impacted Plaintiffs with its management of wild horses on their property inversely

condemning the compensable property interest in the improvements, water rights

and forage. The failure of the Bureau of Land Management (“BLM”) to manage the

wild horse population and the knowingly notorious usage of Plaintiffs water for the

government’s horses directly correlates to the act of creating and maintaining a

nuisance for the intentional purpose of physically depriving Plaintiffs of their

private property rights.

19-1331 L

Receipt number AUSFCC-5617030

Case 1:19-cv-01331-PEC Document 1 Filed 08/30/19 Page 1 of 6

The actions of the United States Department of the Interior, Bureau of Land

Management are contrary to the 5th Amendment to the United States Constitution

and actionable in the United States Court of Federal Claims under 28 U.S. Code §

1491.

PARTIES AND PROPERTIES

1. Plaintiffs are residents of Washoe County, Nevada. Plaintiff Paul

Plouviez is the owner of Bench Creek Ranch, LLC and the real property at issue in

this matter.

2. Defendant, the United States of America, is subject to suit under 28

U.S.C. § 1491 for the actions of the federal Bureau of Land Management to take

property without providing just compensation.

JURISDICTION

3. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1491

(the Tucker Act) as a “claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive department.”

4. Further, pursuant to the Declaratory Judgment Act, this Court “may

declare the rights and other legal relations of any interested party seeking such

declaration.” 28 U.S.C. § 2201.

GENERAL ALLEGATIONS

5. On July 9, 2018, Plaintiffs contacted the Carson City District Office of

the Bureau of Land Management regarding wild horses in Bench Creek Ranch, LLC.

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6. In his communication, Plaintiff Plouviez made it very clear that since

the Draw Fire of July 8, 2017, 500 wild horses had been counted on Plaintiffs’ BLM

permit between HWY 50, Wonder Mine, and around Bench Creek Headquarters.

7. The 500+ wild horses grazing in that triangle of land have been

destroying Bench Creek Ranch, LLC’s forage, and have also been appropriating

drinking water from Plaintiffs’ vested water rights.

8. A limited horse population has a grazing right on Plaintiffs’ permit, but

no water right.

9. This situation caused serious issues and impairments for Plaintiffs’

cattle business.

10. Plaintiffs began sending the BLM a bill for water, to cover the costs of

the 500 wild horses not being properly provided for by the BLM.

11. It is commonly understood that many times when there is a fire,

ranchers charge the BLM for the use of their water (the ranchers own the right to the

beneficial use of the water even if the situs of the appropriation exists of federally

held property,) thus Plaintiffs a fair market value to charge the BLM is $2 for 20

gallons of water consumed per horse for each day until the majority of the horses were

removed such that Plaintiffs gave notice of the same to the BLM. (Exhibit 1 –

Invoices).

12. On December 21, 2018, Plaintiffs received a response from Colleen

Dulin, District Manager, Carson City District of the BLM. (Exhibit 2 – BLM

Response).

Case 1:19-cv-01331-PEC Document 1 Filed 08/30/19 Page 3 of 6

13. Ms. Dulin asserted that the consumption of surface water sources by

wild horses is covered by Nevada State Law, namely NRS 533.367.

14. Ms. Dulin’s communication also indicated that wild horses under the

control of BLM are wildlife based on portions of the Nevada Revised Statues and

Nevada Administrative Code.

15. Nevada has classified horses and burros (equines) as domestic animals

but has not classified any equine species as wildlife.

16. The horses and burros infesting Bench Creek Ranch are wards of the

U.S. Government, not classified as wildlife under Nevada Law, and no longer

considered domestic animals.

17. Nevada water law does in fact require water for wildlife when any

application for appropriation of surface water is approved by the Nevada State

Engineer in accordance with Nevada Water Law first established in 1905.

18. Bench Creek Ranch, LLC’s water rights are pre-statutory vested water

rights and are not subject to this current day provision for water dedicated to wildlife

as beneficial use.

VIOLATION OF THE FIFTH AMENDMENT, TAKING OF PROPERTY

WITHOUT JUST COMPENSATION

19. Each paragraph above is realleged as if fully set forth herein.

20. The BLM’s failure to manage the wild horses occupying Plaintiffs lands

has effectuated a taking of their property.

Case 1:19-cv-01331-PEC Document 1 Filed 08/30/19 Page 4 of 6

21. The actions of the BLM are contrary to the 5th Amendment to the United

States Constitution and actionable in the United States Court of Federal Claims

under 28 U.S. Code § 1491.

22. The loss of water due to the grazing of 500 wild horses on Plaintiffs

property has been quantified to date as a loss of approximately $808,419.30 dollars

at $2 per every 20 gallons of water per horse, per day. This amount continues to grow

as the BLM refuses to remove the wild horses or to provide their own source of water

to the horses.

23. On December 4, 2018, Plaintiffs through undersigned counsel provided

Defendant a Notice of Tucker Act Claim Against the BLM for Taking of Real Property

Without Just Compensation in Violation of the Fifth Amendment to the United States

Constitution by Inverse Condemnation Through the Creating and Perpetrating of a

Nuisance. (Exhibit 3 – Notice).

24. Defendant’s actions constitute a physical and regulatory taking of

Plaintiffs’ compensable property interests in Plaintiff’s forage and by appropriating

drinking water from Plaintiffs’ vested water rights.

25. Plaintiffs have a constitutional right to use their property to earn a

living, which is hindered by the consumption of water necessary for the cattle

Plaintiffs raise by the wild horses unmaintained by the BLM.

26. Defendant’s actions continue to impair Plaintiffs’ right to use their

property interests as they see fit and result in a physical taking of Plaintiffs’ real

Case 1:19-cv-01331-PEC Document 1 Filed 08/30/19 Page 5 of 6

property right to earn a living by raising cattle which should be allowed to utilize the

water rights of Plaintiffs.

WHEREFORE, Plaintiffs request:

A. Declare, adjudge, and decree under the Declaratory Judgment Act, 28 U.S.C.

§ 2201 and 15 U.S.C. §§ 701, 702 and 704 that Plaintiffs have the exclusive

use and rights to their vested forage and water rights;

B. Declare, adjudge, and decree under the Declaratory Judgment Act, 28 U.S.C.

§ 2201 and 15 U.S.C. §§ 701, 072 and 704, that Plaintiffs hold the previously

described vested rights in property; and that the consumption of their vested

forage and water rights by wild horses which are wards of the government

meant to be controlled by the BLM constitutes a taking of property requiring

just compensation.

C. Grant such other relief as this Court deems appropriate, including the award

of just compensation, of attorneys’ fees, litigation expenses and costs against

Defendant as provided by applicable law.

Dated this 30th day of August 2019.

Respectfully submitted,

WESTERN AGRICULTURE,

RESOURCE AND BUSINESS

ADVOCATES, LLP

/s/ A. Blair Dunn

A. Blair Dunn, Esq.

400 Gold Ave SW, Suite 1000

Albuquerque, NM 87102

(505) 681-7801

abdunn@ablairdunn-esq.com

Case 1:19-cv-01331-PEC Document 1 Filed 08/30/19 Page 6 of 6

EXHIBIT 1

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EXHIBIT 2Case 1:19-cv-01331-PEC Document 1-2 Filed 08/30/19 Page 1 of 2

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December 4, 2018

VIA EMAIL RETURN RECEIPT REQUESTED AND USPS

The Honorable Ryan Zinke

Secretary of the Interior

Office of the Secretary of the Interior

1849 C Street, N.W.

Washington DC 20240

Ryan.Zinke@ios.doi.gov

Daniel Jorjani

Acting Solicitor of Interior

daniel.jorjani@sol.doi.gov

RE: NOTICE OF TUCKER ACT CLAIM AGAINST THE BLM FOR TAKING OF REAL PROPERTY

WITHOUT JUST COMPENSATION IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION BY INVERSE CONDEMNATION THROUGH THE CREATING AND

PERPETRATING OF A NUISANCE

Dear Secretary Zinke:

This law firm represents Paul Plouviez and Bench Creek Ranch, LLC from Fallon, Nevada with

regard to their ranch. As the BLM is aware, the Bench Creek Ranch is severely impacted by the BLM

management of wild horses on the property inversely condemning the compensable property interest in

the improvements, water rights and forage. The failure of the BLM to manage the wild horse population

directly correlates to the act of creating and maintaining a nuisance affecting Mr. Plouviez’s private

property rights. The loss of the use of his rights has been quantified, and Mr. Plouviez has provided

invoicing to the BLM to no avail thus far. The actions of the United States Department of the Interior,

Bureau of Land Management are contrary to the 5th Amendment to the United States Constitution and

actionable in the United States Court of Federal Claims under 28 U.S. Code § 1491. Further, the BLM

is not immune from suit for maintaining a public nuisance as noted by Michigan v. U.S. Army Corps of

EXHIBIT 3

Case 1:19-cv-01331-PEC Document 1-3 Filed 08/30/19 Page 1 of 2

W A R B A | 2

Engineers, 758 F.3d 892 and we intend to pursue litigation on that claim, as well, if resolution is not

reached informally.

This letter serves to provide NOTICE of intent to pursue these claims against the United States

Department of the Interior in the Court of Claims and also provide opportunity or invitation to the BLM

to discuss resolution of these claims short of the initiation of litigation. We would appreciate the

opportunity to discuss and this with the Department of the Interior within the next 60 days. We

appreciate your consideration of this matter.

Best Regards,

A. Blair Dunn, Esq.

Cc: client

Nevada BLM Acting Director – Brian Amme - Brian_Amme@blm.gov

Case 1:19-cv-01331-PEC Document 1-3 Filed 08/30/19 Page 2 of 2

In The United States Court of Federal Claims

Plaintiff(s) or Petitioner(s)

Cover Sheet

Names:

Location of Plaintiff(s)/Petitioner(s) (city/state):

(If this is a multi-plaintiff case, pursuant to RCFC 20(a), please use a separate sheet to list additional plaintiffs.)

Name of the attorney of record (See RCFC 83.1(c)):

Firm Name:

Contact information for pro se plaintiff/petitioner or attorney of record:

Post Office Box:

Street Address:

City-State-ZIP:

Telephone & Facsimile Numbers:

E-mail Address:

Is the attorney of record admitted to the Court of Federal Claims Bar? □ Yes □ No

Nature of Suit Code: Agency Identification Code: ___________________ Select only one (three digit) nature-of-suit code from the attached sheet. Number of Claims Involved:

Amount Claimed: $ Use estimate if specific amount is not pleaded.

Bid Protest Case (required for NOS 138 and 140): Indicate approximate dollar amount of procurement at issue: $

Is plaintiff a small business? □ Yes □ No

Was this action preceded by the filing of a □ Yes □ Noprotest before the GAO?

If yes, was a decision on the merits rendered? □ Yes □ No

Income Tax (Partnership) Case:Identify partnership or partnership group: _________________________________________

Takings Case: Specify Location of Property (city/state):

Vaccine Case: Date of Vaccination:

Related Case: Is this case directly related to any pending or previously filed case(s) in the United States Court of Federal Claims? If yes, you are required to file a separate notice of directly related case(s). See RCFC 40.2.

□ Yes □ No

178

19-1331 L

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Nature-of-Suit Codes for General Jurisdiction Cases

100 Contract - Construction - (CDA)102 Contract - Fail to Award - (CDA)104 Contract - Lease - (CDA)106 Contract - Maintenance - (CDA)108 Contract - Renovation - (CDA)110 Contract - Repair - (CDA)112 Contract - Sale - (CDA)114 Contract - Service - (CDA)116 Contract - Supply - (CDA)118 Contract - Other - (CDA)

120 Contract - Bailment122 Contract - Bid Preparation Costs124 Contract - Medicare Act125 Contract - Affordable Care Act126 Contract - Realty Sale128 Contract - Subsidy130 Contract - Surety132 Contract - Timber Sale134 Contract - Other

136 Contract - Other - Wunderlich

138 Contract - Protest (Pre Award)140 Contract - Protest (Post Award)

200 Tax - Allowance of Interest202 Tax - Declaratory Judgment - 28:1507204 Tax - Estate

206 Tax - Excise208 Tax - Gift210 Tax - Income, Corporate212 Tax - Income, Individual213 Tax - Income, Individual (Partnership)214 Tax - Informer’s Fees216 Tax - Preparer’s Penalty218 Tax - Railroad

Retirement/Unemployment Tax Act220 Tax - TEFRA Partnership - 28:1508222 Tax - Windfall Profit

Overpayment - Interest224 Tax - 100% Penalty - 26:6672 -

Withholding226 Tax - Other

300 Civilian Pay - Back Pay302 Civilian Pay - COLA303 Civilian Pay - Disability Annuity304 Civilian Pay - FLSA306 Civilian Pay - Overtime Compensation308 Civilian Pay - Relocation Expenses310 Civilian Pay - Suggestion Award312 Civilian Pay - Other

340 Military Pay - Back Pay342 Military Pay - CHAMPUS344 Military Pay - Correct records346 Military Pay - Correct/Reinstate

348 Military Pay - Reinstatement350 Military Pay - Relocation Expenses352 Military Pay - Retirement354 Military Pay - SBP356 Military Pay - Other

500 Carrier - transportation502 Copyright504 Native American506 Oil Spill Clean Up507 Taking - Town Bluff Dam508 Patent509 Taking - Addicks & Barker Reservoirs 510 Taking - Personalty512 Taking - Realty513 Taking - Rails to Trails

514 Taking - Other515 Unjust Conviction and Imprisonment 516 Miscellaneous - Damages518 Miscellaneous - Lease520 Miscellaneous - Mineral Leasing Act 522 Miscellaneous - Oyster Growers

Damages

524 Miscellaneous - Safety Off. Ben. Act 526 Miscellaneous - Royalty/Penalty Gas

Production

528 Miscellaneous - Other 535 Informer’s Reward 536 Spent Nuclear Fuel

Nature-of-Suit Codes for Vaccine Cases

449 Injury - Hepatitis A453 Injury - Pneumococcal Conjugate456 Injury - DPT & Polio457 Injury - D/T458 Injury - DTP/DPT459 Injury - Measles460 Injury - M/M/R461 Injury - Measles/Rubella462 Injury - Mumps463 Injury - Pertussis464 Injury - Polio - inactive465 Injury - Polio - other466 Injury - Rubella467 Injury - Tetanus & Diphtheria468 Injury - Tetanus & Tox.469 Injury - Other484 Injury - Hepatitis B

485 Injury - Hemophilus Influenzae486 Injury - Varicella490 Injury - Rotavirus492 Injury - Thimerosal494 Injury - Trivalent Influenzae496 Injury - Meningococcal498 Injury - Human Papillomavirus

452 Death - Hepatitis A454 Death - Pneumococcal Conjugate470 Death - DPT & Polio471 Death - D/T472 Death - DTP/DPT473 Death - Measles474 Death - M/M/R475 Death - Measles/Rubella476 Death - Mumps

477 Death - Pertussis478 Death - Polio - inactive479 Death - Polio - other480 Death - Rubella481 Death - Tetanus & Diphtheria482 Death - Tetanus & Tox.483 Death - Other487 Death - Hepatitus B488 Death - Hemophilus Influenzae489 Death - Varicella491 Death - Rotavirus493 Death - Thimerosal495 Death - Trivalent Influenzae497 Death - Meningococcal499 Death - Human Papillomavirus

179

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AGENCY CODES

AGR Agriculture

AF Air Force

ARM Army

AEC Atomic Energy Commission

COM Department of Commerce

DOD Department of Defense

DOE Department of Energy

ED Department of Education

EPA Environmental Protection Agency

GPO Government Printing Office

GSA General Services Administration

HHS Health and Human Services

HLS Homeland Security

HUD Housing and Urban Development

DOI Department of the Interior

ICC Interstate Commerce Commission

DOJ Department of Justice

LAB Department of Labor

MC Marine Corps

NAS National Aeronautical Space Agency

NAV Navy

NRC Nuclear Regulatory Commission

PS Postal Service

STA State Department

SBA Small Business Administration

TRN Department of Transportation

TRE Department of Treasury

VA Department of Veterans Affairs

VAR Various Agencies

O Other

180

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