The caption of the U.S. Court of Appeals for the Tenth Circuit’s opinion in Purgatory Recreation I, LLC v. United States, No. 24-1241 (Oct. 21, 2025), and the fact that the plaintiff raised a takings claim, should give you some idea where this is heading.

After all, when the defendant in a takings claim is the United States, your Tucker Act/Court of Federal Claims alarm bells should be going off.

That’s certainly accurate where the remedy sought is just compensation, and the amount of compensation sought is substantial. Those claims have been assigned to the CFC, not to district courts and the regional courts of appeals. But what if the plaintiff says it doesn’t want just compensation, but instead asks for a declaratory judgment that “to do X would result in a taking?”

In Purgatory, the plaintiff objected to the federal government’s denial of access across federal land, which Purgatory claimed resulted in a loss of its water rights. It’s main claim was under the federal Quiet Title Act, but it also raised a claim under the Declaratory Judgment Act, seeking, inter alia, a declaration:

(3) that a complete prohibition on Purgatory’s use of the Water Rights would constitute a taking of private property for public use in violation of the Fifth Amendment of the United States Constitution and Article II, section 15 of the Colorado Constitution.

Slip op. at 3.

The district court dismissed, and the Tenth Circuit affirmed, “albeit on different grounds than those relied upon by the district court.” Id.

We’ll leave the Quiet Title stuff to you, simply noting that the court held the statute of limitations has run on that claim. Slide all the way down to page 32 for the court’s reasoning of why it affirmed dismissal of the request for a declaratory judgment that the federal government’s acts worked a taking. The court held that the claim could be heard, but that it is not “prudentially ripe” because the before seeking a declaration, “Purgatory must first avail itself of the procedure for just compensation afforded by the federal Tucker Act before it can bring a claim for declaratory relief.” Slip op. at 32.

The court noted that the “typical” remedy for a taking is just compensation. Slip op. at 33. It’s long been held that if you can recover compensation via some adequate procedure, you can’t stop the government from taking your property. Got it.

That’s all well and good. But then, without citation, the Tenth Circuit makes the jump and then assumes that a declaration that “to do X would be a taking” is the same thing as enjoining the government from doing X. The court rejected the plurality in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), which, in turn, relied on a footnote in Duke Power that states:

Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that, since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional. As such, appellees’ claim tracks quite closely that of the petitioners in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), which were brought under § 1331 as well as the Declaratory Judgment Act. See App. in Regional Rail Reorganization Act Cases, O.T. 1974, Nos. 74-165, 74-166, 74-167, 74-168, p. 161. While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here, it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.

The Tenth Circuit held that Eastern Enterprises and Duke Power don’t apply because declaratory relief is available only to plaintiffs where an adequate process to obtain compensation is not available (“such as when the alleged taking involves transfers of money to the government rather than the burdening of physical property”). Slip op. at 35.

The Tucker Act compensation remedy is adequate here,:

Purgatory points to no case holding monetary compensation inadequate to remedy a one-time taking of physical property simply because the plaintiff relied on the property’s substantial economic potential. We are not persuaded that the value of Purgatory’s Water Rights is so large and immeasurable that monetary compensation cannot be adequate.

Slip op. at 37.

To be clear, this is not a jurisdictional dismissal, at least in the court’s belief. This is “prudential” (i.e., optional), and the court could, if it wanted, resolve this issue. The court is saying that we think your claim isn’t ripe and could be developed more if you first seek compensation from the feds in a Tucker Act claim in an Article I tribunal.

But come on, what further development could there be? We know that if Purgatory were to seek just compensation the CFC is the de facto terminal venue, and the issue would never come back to the district court or the Tenth Circuit. Any attempt to seek a declaratory ruling after the CFC decided on compensation would either be moot, or res judicata.

Thus, in short, the Tenth Circuit has decided that it just doesn’t do these cases. And that is a jurisdictional dismissal, not “prudential.”

Our thoughts on the takings remedy question here.

Purgatory Recreation I, LLC v. United States, No. 24-1241 (10th Cir. Oct. 21, 2025)