The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0336p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
TEXAS GAS TRANSMISSIONS, LLC,
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No. 09-3743
v.
,
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BUTLER COUNTY BOARD OF COMMISSIONERS; -
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GREGORY JOLIVETTE, CHARLES FURMON,
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MICHAEL FOX, Butler County
Commissioners; BUTLER COUNTY, OHIO; -
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Defendants-Appellees. -
HUT-1-LLC,
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N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00440—Susan J. Dlott, Chief District Judge.
Argued: April 29, 2010
Decided and Filed: October 29, 2010
Before: GIBBONS and GRIFFIN, Circuit Judges; DOWD, Senior District Judge.*
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COUNSEL
ARGUED: Wilson G. Weisenfelder, Jr., RENDIGS, FRY, KIELY & DENNIS,
Cincinnati, Ohio, for Appellant. C. J. Schmidt, III, WOOD & LAMPING LLP,
Cincinnati, Ohio, for Appellees. ON BRIEF: Wilson G. Weisenfelder, Jr., Lynne
Marie Longtin, RENDIGS, FRY, KIELY & DENNIS, Cincinnati, Ohio, for Appellant.
C. J. Schmidt, III, WOOD & LAMPING LLP, Cincinnati, Ohio, Roger S. Gates,
BUTLER COUNTY PROSECUTOR’S OFFICE, Hamilton, Ohio, Thomas L. Cuni,
Mark A. Wilder, CUNI, FERGUSON & LeVAY CO., L.P.A., Cincinnati, Ohio, for
Appellees.
*
The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
1
No. 09-3743 Texas Gas Transmissions, LLC v. Butler County Page 2
Bd. of Comm’rs, et al.
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OPINION
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PER CURIAM. This case concerns the impact of Butler County’s proposed
improvement to Princeton Road on two 26-inch subterranean gas pipelines owned by
Texas Gas. The pipelines intersect the road and, in part, run underneath Butler County’s
66-foot wide right-of-way on Princeton Road. The improvement will accommodate the
traffic caused by the construction of a new residential subdivision and require the
strengthening or removal of Texas Gas’s underground pipelines. The majority of the
improvement will take place within Butler County’s 66-foot wide right-of-way, but a
portion will occur alongside the right-of-way in an area where Texas Gas has a property
interest superior to that of Butler County. Before the district court, the parties brought
competing claims for declaratory and injunctive relief, seeking a declaration of the
priority of their respective property interests and of Butler County’s authority to order
Texas Gas to strengthen or remove the pipelines underneath Princeton Road at the
company’s expense.
After a bench trial, the district court granted Butler County declaratory relief and
entered an order providing, in relevant part for this appeal, that: (1) Butler County had
a 66-foot wide right-of-way that was superior to Texas Gas’s pipeline easements; (2) the
planned improvements to Princeton Road are not an unreasonable interference with
Texas Gas’s easements; and (3) Ohio Revised Code § 5547.03 granted Butler County
the authority to order Texas Gas to strengthen or remove the pipelines at its own
expense. Texas Gas timely appealed, arguing that the district court improperly
interpreted Ohio Revised Code § 5547.03 and that the district court’s order authorized
an unconstitutional taking of its superior interest in the land running alongside Butler
County’s right-of-way.
At oral argument, it became apparent that the dispute between the parties is a
narrow one. Texas Gas emphasized that it is not appealing the district court’s settlement
No. 09-3743 Texas Gas Transmissions, LLC v. Butler County Page 3
Bd. of Comm’rs, et al.
of the competing property claims within the 66-foot wide Princeton Road right-of-way.
Indeed, Texas Gas does not dispute that Butler County has a superior interest within that
area and may order it to strengthen or remove the pipelines. On the other hand, counsel
for Butler County stated expressly that the County is not asking us to affirm the district
court’s judgment to the extent it authorizes the County to order Texas Gas to strengthen
or remove the portions of its pipelines outside of the County’s right-of-way. Counsel
indicated that so long as the County may act within its right-of-way, we “don’t even
have to reach” the issue of its rights outside that area. In essence, Butler County wants
the authority to act within its right-of-way, to which Texas Gas has no objection, and
Texas Gas wants to prevent Butler County from ordering it to alter the pipelines outside
of the County’s right-of-way, to which Butler County has no objection.
At oral argument, counsel for Texas Gas insisted that the issue before the court
on appeal was the correctness of the district court’s decision with respect to the area
outside the right of way in which Texas Gas has the superior interest. To analyze this
issue properly, we must closely examine the district court’s opinion. The operative
language of the declaratory judgment does not specify that it applies to the area outside
the right of way as well as the area within it. Yet clearly the opinion as a whole
interprets the statute to allow Butler County to direct Texas Gas to remove or reinforce
its pipelines at Texas Gas’s expense. Clearly, also, the opinion denies Texas Gas an
injunction and thus permits the project to go forward. And as a practical matter, going
forward with the project and paying for removal or reinforcement of the pipelines
involve portions of the pipelines that are both within and outside the right of way. The
district court unmistakably avoided any issues that Texas Gas might raise through resort
to state remedies, as well as issues that might be raised in a Takings Clause claim made
after state remedies were exhausted. And in fact, the district court recognized that Texas
Gas “may” be entitled to partial compensation to the extent the pipelines are affected by
the new berm, which is the area outside the right of way.
Texas Gas has effectively abandoned any effort to challenge the district court’s
application of Ohio Revised Code § 5547.03, except on constitutional grounds. Given
No. 09-3743 Texas Gas Transmissions, LLC v. Butler County Page 4
Bd. of Comm’rs, et al.
Texas Gas’s concessions with respect to the district court’s order generally and its failure
to challenge its underpinnings with respect to Butler County’s entitlement to go forward,
it appears to us that we lack jurisdiction over any remaining issues in this appeal. It is
well-settled that a plaintiff alleging an unconstitutional taking of private property by a
government entity must first exhaust available state remedies, regardless of the nature
of the taking. River City Capital, LP v. Bd. of County Comm’rs, Clermont Cnty., Ohio,
491 F.3d 301, 302 (6th Cir. 2007). Although a Takings Clause claim paired with
42 U.S.C. § 1983 appears to present a clear basis for federal question jurisdiction under
28 U.S.C. § 1331, “the Supreme Court has ruled that constitutional takings claims are
not ripe for federal court review until state compensation procedures, assuming they
exist and are adequate, have been exhausted.” Id. at 306 (discussing Williamson County
Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)).
Before exercising jurisdiction over a Takings Clause claim, a federal court must ensure
that the relevant state compensation procedures are “reasonable, certain, and adequate.”
Id. at 307 (citations omitted). This Court has held unambiguously that Ohio affords such
a procedure through an action for mandamus to compel a government entity to institute
appropriation proceedings against the private property owner. Id. (citing Coles v.
Granville, 448 F.3d 853, 865 (6th Cir. 2006)). This procedure, as set forth in sections
163.01 to 163.22 of the Ohio Revised Code, must be followed regardless of whether a
physical or regulatory taking is at issue. Id. Texas Gas concedes that it has not
instituted any such proceedings in state court. “Ripeness is more than a mere procedural
question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack
subject matter jurisdiction and the complaint must be dismissed.” Bigelow v. Mich.
Dep’t of Natural Res., 970 F.2d 154, 157 (6th Cir. 1992) (citation omitted). A federal
court must determine whether a claim is ripe for review, “even if neither party has raised
this issue.” Id.
Because we lack jurisdiction to consider whether Butler County’s actions
constitute a taking of property for which just compensation must be provided, we
dismiss Texas Gas’s appeal as it relates to those issues. In all other respects, we affirm.