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MODEN v. U.S.

No. 04-5092.

404 F.3d 1335 (2005)

Donald MODEN and Barbara Moden, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

United States Court of Appeals, Federal Circuit.

April 15, 2005.

Attorney(s) appearing for the Case

Ted L. McBride, Beardsley, Jensen & Von Wald, Prof. L.L.C., of Rapid City, South Dakota, argued for plaintiffs-appellants.

Katherine J. Barton, Attorney, Appellate Section, Environment and Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Thomas L. Sansonetti, Assistant Attorney General, Mark Haag, Attorney, and, William Shapiro, Attorney, General Litigation Section.

Nancie G. Marzulla, Defenders Of Property Rights, of Washington, DC, for amicus curiae Defenders Of Property Rights.

Before MICHEL, Chief Judge, LOURIE, and PROST, Circuit Judges.

PROST, Circuit Judge.

Donald and Barbara Moden appeal the dismissal of their case by the United States Court of Federal Claims for lack of subject matter jurisdiction. See Moden v. United States, 60 Fed. Cl. 275 (2004). For the reasons stated herein, we treat the dismissal as a grant of summary judgment. Because the Modens fail to raise a genuine issue of material fact with respect to at least one element of their claim, we affirm the grant of summary judgment...

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