Even if it appeared that the tolling agreements might have prevented the appellants from being able to proceed with a derivative action, they had the responsibility to determine whether to attempt to bring the action in a timely fashion. Cf. Boling v. United States, 220 F.3d 1365, 1374 (Fed. Cir. 2000) (declining to equitably toll statute of limitations even where substantive action appeared futile during the limitations period). Failure to bring the action within the limitations period was a judgment for which the appellants are responsible. They are responsible for the consequences of their judgment, including the risk that it was incorrect.

Relevant to whether the installation and maintenance of shore protection to prevent future erosion is a "prudent measure" is whether the shore protection costs more than the reasonably foreseeable erosion damage that would occur without it. See id. ("'If revetments are less expensive than the value of the land forecast to be lost, then the [g]overment may discharge its liability by bearing the cost of bank protection.'") (quoting Boling v. United States (Boling I), 41 Fed. Cl. 674, 694 (1998), vacated on other grounds (Boling II), 220 F.3d 1365 (Fed. Cir. 2000)).

"[A] claim based upon a single distinct event, which may have continued ill effects later on, is not a continuing claim." Id. at 1456; see also Voisin v. United States (Voisin), 80 Fed. Cl. 164, 176-77 (2008) (holding that the continuing claim doctrine is inapplicable to cases "`where a single governmental action causes a series of deleterious effects, even though those effects may extend long after the initial governmental breach'") (quoting Boling v. United States (Boling II), 220 F.3d 1365, 1373 (Fed. Cir. 2000)). In Boling II, the United States Court of Appeals for the Federal Circuit dealt with a taking that, as in this case, was caused "by a gradual physical process[,] erosion."

The court further stated that "`stabilization [within the meaning of Dickinson] occurs when it becomes clear that the gradual process set into motion by the government has effected a permanent taking, not when the process has ceased or when the entire extent of the damage is determined.'" Id. at 811 (bracketed material in original) (quoting Boling v. United States, 220 F.3d 1365, 1370-71 (Fed. Cir. 2000)). The court concluded that "the erosion situation became `stabilized' within the meaning of Dickinson" in 1989 because "by 1989, the gradual process of shoreline erosion set into motion by the government had resulted in a permanent taking and the extent of the damage had become reasonably foreseeable."

However, in cases where the government leaves the taking of property to a gradual physical process, rather than utilizing the traditional condemnation procedure, determining the exact moment of claim accrual is difficult. 220 F.3d 1365, 1370 (Fed. Cir. 2000) (citations omitted) (emphasis added). In Banks v. United States, the Federal Circuit explained that "[t]he accrual of a takings claim where the government leaves the taking of property to a gradual physical process occurs when the situation has `stabilized.'"

A claim accrues "when all the events have occurred which fix the liability of the Government" and the plaintiff "was or should have been aware" that the claim existed. Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir. 2006) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)); Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000). In some cases, the events that give rise to liability may take place over extended periods of time rather than at a discrete instance.

For a federal takings claim, “[t]he obligation to sue arises once the permanent nature of the Government action is evident, regardless of whether damages are complete and fully calculable.” Mildenberger v. United States, 643 F.3d 938, 946 (Fed. Cir. 2011); see also Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000) (holding that for a takings claim, “the key date for accrual purposes is the date on which the plaintiff's land has been clearly and permanently taken”). Stabilization occurs when it becomes clear that the gradual process set into motion by the government has effected a permanent taking, not when the process has ceased or when the entire extent of the damage is determined.

“In general, a takings claim accrues when all events which fix the government's alleged liability have occurred and the plaintiff was or should have been aware of their existence.” Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000) (internal quotation and citation omitted). The key date for accrual purposes is the date that Plaintiffs' land had been “clearly and permanently taken.” Id.

"In general, a takings claim accrues when all events which fix the government's alleged liability have occurred and the plaintiff was or should have been aware of their existence." Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000) (internal quotation and citation omitted). The key date for accrual purposes is the date that Plaintiffs' land had been "clearly and permanently taken." Id.

' Thus, the key date for accrual purposes is the date on which the plaintiff's land has been clearly and permanently taken." Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)). "The continuing claims doctrine has been applied when the government owes a continuing duty" to a plaintiff.