Pvm Redwood Company, Inc. v. United States

686 F.2d 1327 PVM REDWOOD COMPANY, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 80-4096. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1981. Decided Sept. 13, 1982. Leon J. Karjola, Rowland & Karjola, Eureka, Cal., for plaintiff-appellant. Maria Arevalo Iizuka, Dept. of Justice, Washington, D. C., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before MERRILL and ALARCON, Circuit Judges and VAN PELT * , District Judge. MERRILL, Circuit Judge: 1 PVM Redwood Company, Inc. appeals the dismissal of its action for failure of its complaint to state a claim upon which relief could be granted. 2 PVM operates a sawmill. In its complaint it alleged that passage of the Redwood Park Expansion Act, Pub.L.No.95-250, 92 Stat. 163 , 16 U.S.C. § 79b et seq., caused a taking of its property by the United States for which it is entitled to compensation under the Fifth Amendment of the United States Constitution. The District Court ruled that from the allegations of the complaint it was clear that no property right held by PVM had been taken by the Government. We…

PVM Redwood Company, Inc. appeals the dismissal of its action for failure of its complaint to state a claim upon which relief could be granted.

PVM operates a sawmill. In its complaint it alleged that passage of the Redwood Park Expansion Act, Pub.L.No.95-250, 92 Stat. 163 , 16 U.S.C. § 79b et seq., caused a taking of its property by the United States for which it is entitled to compensation under the Fifth Amendment of the United States Constitution. The District Court ruled that from the allegations of the complaint it was clear that no property right held by PVM had been taken by the Government. We agree.

The nature of PVM’s alleged property right appears from Count I of its complaint. It is there alleged that under authority granted by the Act the Secretary of the Interior had acquired for the United States timber lands owned by those who had in the past supplied 98% of PVM’s requirements; that this had made it impossible for them to continue to meet PVM’s needs. The complaint stated:

As a consequence, it is alleged, PVM suffered an increase in production costs through a need to deal with an inferior grade of lumber and the need to retool and purchase new machinery in order…

dissenting.

I respectfully dissent. I would reverse the order dismissing the complaint and direct the district court to permit PVM to attempt to amend the pleading to state its claim in a clear and concise manner. I believe that PVM has set forth facts which establish that its property has been taken by the government.

I am in complete agreement with my colleagues’ fine analysis and rejection of PVM’s statutory claim for relief. I do not agree with the majority’s interpretation of PVM’s constitutional claim.

*1330 I.

THE STATUTORY CLAIM

PVM argues that since the Expansion • Act provides for employees, whose livelihoods were lost as a result of the act, it should be read to provide as well for timber industry employers who have lost their source of supply. The language of the act simply does not support this theory. 1 The history of the act does not suggest that Congress proposed that timber industry landowners whose lands were not taken under the act should be compensated for the loss of their supply of redwood lumber or for the consequent losses to their business and property interests. There also is no reason for us to imply that such a remedy exists under the act. This…