222 Ct. Cl. what he did to resolve it. Defendant attaches this to its motion. Plaintiffs' opposition embodies no counter affidavit or any evidence whatever, and by the rules governing summary judgment, Mr. Milano's statement must be taken as true. It is an official government record prepared in course of his duties. It denies the plaintiffs' complaint in all relevant respects. They insisted on closing before the work was complete, but according to Mr. Milano, they eventually got everything promised except one vent hole. This they refused to admit the contractor's men to do. Mr. Milano says the plaintiffs broke down partitions and made other changes after closing. He says the kitchens and bathrooms of the development were standard types and nobody promised to change them for the plaintiffs. Defendant also relies on a contract clause by which the purchaser agreed to accept the property in its present condition except for a list of exceptions for which space was allowed, but the space was vacant and there was no list. The court is satisfied that defendant has backed its motion with sufficient exhibits to sustain it, and plaintiffs cannot beat something with nothing. There is no relevant fact issue requiring trial. Accordingly, on the record and briefs, but without oral argument, IT IS ORDERED that defendant's motion for summary judgment be granted and the petition is dismissed. No. 94-79L. JANUARY 11, 1980 Phil R. Lucero, et al. Eminent domain; taking; standing to sue; refusal to condemn for lack of appropriated funds; cattle grazing.—On January 11, 1980 the court entered the following order: William O. Jordan, attorney of record for Phil R. Lucero, Commissioner of Public Lands. Harold L. Hensley, Jr., attorney of record for Plaintiff Grazing Lessees. Hinkle, Cox, Eaton, Coffield & Hensley, of counsel. Gerald S. Fish, with whom was Assistant Attorney General James W. Moorman, for defendant. 491 Before FRIEDMAN, Chief Judge, NICHOLS and SMITH, Judges. Plaintiff, Phil R. Lucero, is Commissioner of Public Lands, State of New Mexico. The other plaintiffs, 99 in all, are persons who lease land from the state for grazing purposes. All allege a fifth amendment taking. Defendant moves for judgment on the pleadings. It is one of those cases where it is impossible to say just by reading the petition that the plaintiffs have no cause of action, and, therefore, the motion is denied, except that we strike the name of Mr. Lucero as a party plaintiff, his interest in the claim not being properly alleged. It seems defendant has established a defense facility known as the White Sands Missile Range. We construe the petition as alleging that the range is operational and has set boundaries within which the involved lands are located. Some land was privately owned and defendant has taken it already. Petitioners say that ranches are assembled for cattle grazing by bringing together tracts partly owned by the rancher in fee and partly leased from the state. Defendant has taken the former for the range, but refuses to take the latter, for lack of appropriated funds according to the petition. We may assume it is not very practicable to raise cattle on a missile range and that the failure of defendant to condemn tracts that the state owns does not make it more practicable to do so on those particular tracts. On the other hand, the petition does not allege any actual firing of missiles or that any cattle, or their owners, have as yet become casualties. Rather, the gist of the petition seems to be that whatever the defendant has done on its fee lands has made it impracticable to raise cattle on the lands owned by the state and involved in the instant claim. Defendant relies on the ancient rule that it is not liable for land incidentally harmed as to its use but not actually taken into possession, so long as it is a distinct tract and not merely part of land taken. But it has long since also been held that the firing of a government missile over land may be a taking of it, and so may be the manifestation of an intent to fire, depending on whether the acts as a whole are such as to indicate an intent to take. Portsmouth Harbor Co. v. United States, 260 U.S. 327 (1922). In United States v. Causby, 328 U.S. 256, 262 (1946), the same idea extends to the establishment of approach routes around airports. In the absence of allegations that defendant has fired any missiles, we can turn to Drakes Bay Land Co. v. United States, 191 Ct. Cl. 389, 424 F. 2d 574 (1970) where defendant included land within the statutory boundary of a national park but refused to condemn it for lack of appropriated funds, using other means to prevent the owners from doing anything with their lands. Cf. also Pete v. United States, 209 Ct. Ct. Cl. 270, 531 F. 2d 1018 (1976). Since we cannot say plaintiffs' allegations, read favorably to plaintiffs, do not bring the case within the above authorities, we cannot grant defendant's motion. The facts may be wholly other than we suppose, but if defendant can show they are, it will prevail. At any rate, the petition, scanty as it is, suffices to keep plaintiffs in court, except for Mr. Lucero. If the intent of naming him was to claim compensation for the state's ownership interests, proper allegations will make it a party and leave is granted to amend the petition for that purpose. The trial division will see that the pleadings are corrected and report the facts so we can determine whether defendant has taken the properties involved. Defendant's motion is accordingly granted as to Mr. Lucero and denied as to all other plaintiffs. No. 415-79C. JANUARY 11, 1980 Jerome H. Lemelson Pleading and practice; patent suit filed under Rule 36; motion to dismiss or consolidate; remand to trial judge for discovery issues.-On January 11, 1980 the court entered the following order: William E. Jackson, attorney of record for plaintiff. Qualley, Larson & Jones, of counsel. A. David Spevack, with whom was Assistant Attorney General Alice Daniel, for defendant. Thomas J. Byrnes, of counsel. Before FRIEDMAN, Chief Judge, NICHOLS and SMITH, Judges. 491 Plaintiff in this suit has filed a petition pending motion for discovery, pursuant to Rule 36. The case is before the court on defendant's motion to dismiss, filed prior to discovery. Plaintiff claims the United States has infringed several patents he owns by purchasing and using equipment that infringed his patent. He states, however, that he cannot determine exactly which allegedly infringing devices the government has used or which patent claims have been infringed without discovering information held by the United States and its contractors. Defendant's motion sought dismissal on the grounds that the petition does not meet the requirements of Rule 36 and that it duplicates another patent infringement suit the plaintiff filed on the same day, Lemelson v. United States, No. 414-79C, filed September 14, 1979, which it asserts makes the same claims as the present suit. The government contends that the case is identical to the other suit, which plaintiff had sufficient information to commence by a petition under Rule 35. In a later pleading defendant states that the purpose of its motion is to consolidate the two cases. Both sides make conflicting assertions of fact, which the court cannot resolve at this stage of the proceedings. Defendant's contention that the cases should be consolidated is not appropriate for our consideration at this time, and in any event is a matter for the trial judge initially to decide. On their faces, the two petitions appear to differ in scope, in the items at issue, and in the likely third-party defendants. A number of the issues raised by the United States in its pleadings concern the scope of discovery. These questions, like the question of consolidation, should be brought before the trial judge in the first instance. IT IS THEREFORE ORDERED that defendant's motion to dismiss is denied, and the case is remanded to the Trial Division for further proceedings. No. 18-B. JANUARY 11, 1980 Minnesota Chippewa Tribe, et al. Indian claims; attorney expenses; interest on funds expended; expert witness fees.-On January 11, 1980 the court entered the following order: 222 Ct. Cl. Rodney J. Edwards, attorney of record for plaintiffs. Edwards, Edwards & Bodin, of counsel. Craig A. Decker, with whom was Assistant Attorney General James W. Moorman, for defendant. Before FRIEDMAN, Chief Judge, NICHOLS and SMITH, Judges. This matter is before the court on the petition of Jay H. Hoag and Rodney J. Edwards for reimbursement of attorneys' expenses incurred in the prosecution of Docket No. 18-B. Pursuant to 25 U.S.C. § 70v (1976), this case was transferred to the Court of Claims from the Indian Claims Commission on October 13, 1978, the petition for reimbursement of attorneys' expenses being the sole remaining issue. Final awards were entered by the Indian Claims Commission on July 27, 1965, in favor of plaintiffs as follows: (1) to the Minnesota Chippewa Tribe on behalf of the Mississippi Bands of Chippewa Indians in the sum of $1,671,262.18, and (2) to the Minnesota Chippewa Tribe on behalf of the Pillager and Lake Winnibigoshish Bands of Chippewa Indians in the sum of $2,260,942.90. Attorneys Hoag and Edwards filed their petition on January 17, 1968; their original request was for the sum of $131,525.67. However, after several adjustments, this sum was increased to $136,093.31. Copies of the petition were served upon counsel for the United States and upon the Minnesota Chippewa Tribe. The Minnesota Chippewa Tribe did not object to the claimed expenses, but it did ask for assurances that the tribe would be compensated for the expenses it paid and for funds it advanced to its attorneys. It estimated these expenses and advances to total $14,417.96. In response, the Indian Claims Commission informed the Minnesota Chippewa Tribe that the petition for reimbursement of expenses had acknowledged, in effect, that $14,500.53 of the disbursements covered by the petition was paid by the Minnesota Chippewa Tribe. No further objections or comments have been filed by the Minnesota Chippewa Tribe, and it is therefore concluded that it has no objection to the petition in its present posture. The legal staff of the Indian Claims Commission did object to $51,019.05 worth of items claimed by the |