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October 6, 1993

KENNETH E. PALM and MARIE E. PALM, Plaintiffs,

The opinion of the court was delivered by: JAMES WARE

 Three motions are currently before the Court: (1) Defendant's motion to dismiss Plaintiffs Kenneth E. Palm and Marie E. Palm's complaint, (2) Defendant's motion to dismiss Plaintiff Stuart A. Bartleson's complaint, and (3) Defendant's motion to dismiss, or, in the alternative, for partial summary judgment on, Plaintiffs Cynthia D. Jones and Vickie M. Palm's complaints. For the reasons set forth below, Defendant's motions are hereby GRANTED IN PART and DENIED IN PART.



 A. Legal Standards

 1. Motion to Dismiss

 "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). This Court construes the non-moving party's allegations of material fact as true and construes them in the light most favorable to the non-moving party. Nieto v. Ecker, 845 F.2d 868, 870 (9th Cir. 1988).

 2. Motion for Partial Summary Judgment

 Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56(c). The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine issue is one in which the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The evidence, and any inferences based on underlying facts, must be viewed in a light most favorable to the non-moving party. Diaz v. American Tel. & Tel., 752 F.2d 1356, 1358 n.1 (9th Cir. 1985).

 B. Kenneth Palm and Marie Palm's Complaint

 Kenneth and Marie Palm's Fourth Amended Complaint states five causes of action: (1) Nuisance, (2) Negligence, (3) Intentional Infliction of Mental Distress, (4) Continuing Trespass, and (5) Injunction. Defendant moves to dismiss the Nuisance, Negligence, and Continuing Trespass causes of action for lack of jurisdiction; the Intentional Infliction of Mental Distress cause of action for failure to state a claim; the Injunction cause of action for lack of jurisdiction; and for partial dismissal of all causes of action relating to Parcel No. 2 for lack of jurisdiction. *fn1"

 1. Nuisance, Negligence, and Continuing Trespass Claims

 Defendant argues that the Court does not have subject matter jurisdiction over Plaintiffs' nuisance, negligence, and continuing trespass claims because while Plaintiffs couch their claims in terms of torts, they are in actuality claims for a taking (ie. founded upon the Constitution) that should be litigated in the Court of Claims.

 The district court has exclusive jurisdiction over claims against the United States for personal injury or injury to property that result from the negligence of Government employees. *fn2" The district court and the Court of Claims have concurrent jurisdiction over claims that arise out of the Constitution when the amount in dispute is less than $ 10,000. *fn3" However, the Court of Claims has exclusive jurisdiction over such claims when the claims exceed $ 10,000. *fn4" In this case, Plaintiffs seek damages in excess of $ 3,000,000.

 To determine whether jurisdiction is proper under the FTCA or the Tucker Act, the Court must determine the essential nature of the action. Myers v. United States, 323 F.2d 580, 583 (9th Cir. 1963); Woodbury v. United States, 313 F.2d 291, 294-96 (9th Cir. 1963). *fn5" The cluster of facts that constitute a claim for an unconstitutional taking and those that indicate the torts of nuisance or trespass are similar in many respects. Both involve situations of unlawful entry onto an owner's property or infringement of an owner's right to use and enjoyment of her property. Therefore, the point at which the allegedly unlawful acts cross the line from tort to a taking is not always readily apparent. In fact, because of this gray area, the same set of facts may, under certain circumstances, constitute viable claims under both legal theories. Normally, this would not present a problem because a plaintiff can plead alternate legal theories of liability in one complaint. However, because the district court is a court of limited subject matter jurisdiction (e.g. does not have jurisdiction over taking claims in excess of $ 10,000), the Court must make a determination as to whether Plaintiffs' allegations do indeed clearly fit on one side of the line or the other. Of course, if the facts sufficiently state a claim under either theory, Plaintiffs can elect the forum in which they wish to pursue their claims. See Aleutco Corp. v. United States, 244 F.2d 674, 678-79 (3d Cir. 1957).

 In evaluating the nature of the action, one thing seems certain: on a sliding scale, a taking often involves factual circumstances that would tend to indicate more extreme governmental intrusiveness, permanent infringement, or, even if temporary, an exercise of dominion and control over a private party's property interests; whereas nuisance and trespass generally seem less so. As currently plead, Plaintiffs' complaint falls short of depicting the former type of situation. Plaintiffs describe Defendant's intrusive behavior as being periodic and sporadic (ie. not always occurring in the same location or with the same frequency or intensity). See, e.g., Pls.['] Compl., PP 6, 7, and 13. Furthermore, Plaintiffs have amended their complaint to state that they have suffered damage to their real property, rather than "permanent" damage. See id., P 11. The Court finds that Plaintiffs' characterization of Defendant's conduct is sufficient to state claims sounding in tort. The Court acknowledges that this depiction may yet fall in the "gray area," and could perhaps still be interpreted to state a claim for an unconstitutional taking. However, it does not exclusively state such a claim.

  The cases cited by Defendant do not dictate a contrary result. It is true that in Portsmouth v. United States, 260 U.S. 327, 67 L. Ed. 287, 43 S. Ct. 135 (1922), claims involving the government's firing of projectiles across the plaintiff's property were heard by the Court of Claims. However, the mere similarity in conduct alleged is not enough to let that case bar Plaintiffs' amended claims in this case. As an initial matter, Portsmouth was decided in 1922, almost 25 years before the FTCA was enacted. At that time, the plaintiffs only had the Court of Claims and the claim of an unconstitutional taking available to seek redress against the United States for their injuries. Furthermore, it should be noted that the plaintiffs in that case twice tried to plead claims that amounted to a taking that were dismissed, apparently because they were not intrusive enough. *fn6" In the third go round, the court allowed the claims to go forward because the new complaint included allegations that the government had erected the battery with the intention of firing across the plaintiffs' private property. In this case, however, Plaintiffs' allegations are that Defendant has been careless or reckless and "mis"fired onto their property. Rather than characterizing the type of deliberate infringement that allowed the Portsmouth plaintiffs to finally proceed on a taking claim, Plaintiffs in this case have more closely plead the occasional acts of gun fire" that were rejected in the second go round of the Portsmouth case as somehow falling short of a taking. Finally, the court stated:

The repetition of those acts through many years and the establishment of the fire control may be found to show an abiding purpose to fire when the United States sees fit, even if not frequently, or they may be explained as still only occasional torts. That is for the Court of Claims when the evidence is heard.

 Id. at 330 (emphasis added). Therefore, while Portsmouth supports the proposition that Plaintiffs' claims could perhaps amount to a taking, it certainly does not indicate that they do not instead (or at least also) constitute a tort.

 Again, in United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946), although the court determined that the military low overflights were so low and so frequent as to constitute a taking, that case was decided the same year as the FTCA was enacted, the plaintiffs chose the Court of Claims as the forum of redress, and the court did not ever address whether the claims could also be construed as a tort. Indeed, in Western v. McGehee, 202 F. Supp. 287, 290 (D. Md. 1962), the court, citing Causby, stated:

Of course, frequent flights of aircraft over property, at low altitudes, may cause injury and damage, for which the landowner is entitled to just compensation or damages, or may be so low and so frequent as to constitute a taking of property by the government for public use. If such flights do not amount to a taking, but cause physical ...

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