Petition for Writ of Certiorari — William B. Walton, et al., Petitioners v. Neskowin Regional Sanitary Authority

Supreme Court briefOct 16, 2024

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itjitolM

No.

In the

Supreme Court ot tJje Mntteb States*

WILLIAM B. WALTON, et al.,

Petitioners,

NESKOWIN REGIONAL SANITARY AUTHORITY,

Respondent,

and

EVELYN A. HARRIS, Trustee of the Harris Living

Trust, et al.

Defendants.

On Petition for Writ of Certiorari

to the Oregon Supreme Court

PETITION FOR WRIT OF CERTIORARI

James J. Walton

Representing Self

3681 Augusta National Drive S.

Salem, OR 97302

Telephone: (541) 514-8112

QUESTION PRESENTED

In the mid-1990s the Neskowin Regional Sanitary

Authority (Sanitary Authority) and the Walton Family

entered into a purported agreement that allowed the

Sanitary Authority to bury a sewer line on the Walton’s

property in exchange for a free sewer hook-up when

needed. The sewer line was then installed and remained

on the Walton’s property for years without incident. In

2015, however, the Sanitary Authority required the

Walton Family to officially hook-up to its sewer system.

The Walton Family sought their free hook-up, which the

Sanitary Authority summarily refused. The Waltons

filed a state takings lawsuit, claiming the Sanitary

Authority’s refusal to grant their free hook-up, while

maintaining a physical sewer line on their property

effected

unconstitutional

taking

without

compensation. The state circuit court dismissed the

Walton’s takings claim under Oregon’s statute of

limitations, stating the Waltons should have brought

their takings claim back when the Sanitary Authority

first installed its sewer line. The Oregon appellate and

supreme court affirmed.

The question presented is:

Whether a Constitutional Fifth Amendment

Takings Claim, based on a physical occupation, fully

accrues and the statute of limitations begins to run

before the government refuses to provide just

compensation.

Parties to the Proceedings and Pule 29.6

The Walton Family, comprised of William B. Walton,

James Jefferson Walton Jr., and Victoria K. Walton,

were the Plaintiffs and Appellants in all proceedings

below.

The Neskowin Regional Sanitary Authority is a public

entity.

Evelyn A. Harris, Trustee of the Harris laving Trust;

Michael J. Laber; Kristen R. Laber; Carolyn Purvine

a/k/a Carolyn Purvine-Burger; Janice Balme, Trustee of

the James E. Balme Exemption Trust; Carlton J.

McLeod II; Scott S. McLeod; Franca McLeod Dyer;

Neskowin Beach Golf Course, Inc.; Catlin Spears Lind;

Steve E. Rossman; Audry M. Rossman; Frederick C.

Rusina; Douglas F. Frank; Margaret W. Frank;

Angelina Caministeanu; Gheorghe Caministeanu;

Richard Charles Hook; Penny K. Hook; Richard A.

Schmuck; Patricia A. Schmuck; Allen R. Schmuck; Julie

McAllister; Mark R. Rosenberg; Abby Safyan; Howard

Lichter; and Rebecca Friberg are joined defendants to

this litigation. However, the defendant’s portion of this

case was stayed pending the Oregon state courts’

resolution of the statute of limitations issue. A notice of

uninterested parties has been filed in this case to remove

these defendants from the petition before this Court.

Related Proceedings

Walton v. Neskowin Regional Sanitary Authority, 372

Or. 331 (2024) Supreme Court of the State of Oregon.

Judgement entered May 23, 2024.

Walton v. Neskowin Regional Sanitary Authority, 314

Or. App. 124 (2021) Court of Appeals of the State of

Oregon. Judgement entered September 01, 2021

Table of Contents

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTIONAL STATEMENT,

CONSTITUTIONAL PROVISIONS

INTRODUCTION & SUMMARY OF REASONS

FOR GRANTING THE PETITION.

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT.

I. LOWER COURTS CONFLICT AS TO WHEN

PHYSICAL TAKINGS CLAIMS ACCRUE

LEADING TO DISPARATE APPLICATIONS

OF LIMITATIONS

A. Lower Courts Conflict as to When a Physical

Takings Claims Accrues When the Physical

Occupation is Divorced from the Governments

Failure to Pay....................................................

B. An F-viating Agreement Does Not Turn a

Property Owner's Takings Claims Into a

Breach Of Contract Claim...................

II. WITHOUT THIS COURT’S INTERVENTION,

PROPERTY OWNERS ARE UNIQUELY DEPRIVED

OF ADJUDICATION OF CONSTITUTIONAL

,21

CLAIMS

CONCLUSION

Table of Authorities

Cases

Advon Corp. v. Coopwood’s Air Conditioning Inc., 517

F.Supp.3d 656, 662-63 (S.D. Tex. 2021)

Ark. Game & Fish Comm’n v. U.S., 568 U.S. 23, 31-32

(2012).......................................................................... 10

Armstrong v. United, 364 U.S. 40, 49 (1960).........

Atlas Corp. v. United States, 895 F,2d 745, 756-58

(1998)..........................................................................

Avenida San Juan P,ship v. City of San Clemente, 201

Cal.App.4th 1256, 1278 (Cal. App. Ct. 2011)........ 3-4

Barlow v. Haun, Inc. v. U.S., 87 Fed. Cl. 428, 435

9, 19-20

(2009)

Bay Area Laundry & Dry Cleaning Pension Trust Fund

v. Ferber Corp., 522 U.S. 192, 201 (1997) (citing

Rawlings v. Ray, 312 U.S. 96, 98 (1941))..................... 8

Bay-Houston Towing Co., Inc. v. U.S., 58 Fed Cl. 462,

471 (2003)......................................................................... 21

Benedict v. City of New York, 98 F. 789, 790 (2d Cir.

1899)................................................................................. 13

Biddison v. City of Chicago, 921 F2.2d 724, 726 (7th

Cir. 1991)................................................ ....... ................ 3

Boling v. U.S., 220 F.3d 1365,1370 (Fed. Cir. 2000)....9

Burnett v. New York Cent. R. Co., 380 U.S. 424, 428

(1965)............................................................................... 10

Casitas Municipal Water District v. United States, 708

F.3d 1340, 1359-60 (2013)..............................................15

City of Anchorage v. Nesbett, 530 P.2d 1324, 1332

(Alaska 1975)............................................................. 4, 15

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687, 717 (1999)............... ................................. 11

Cedar Point Nurseryv. Hassid, 594 U.S. 139, 147,152

(2021).................................................... 2, 12, 14,15, 17

Corner Post, Inc. v. Bd. Of Governors of Federal Reserve

System, 144S. Ct 2440, 2450 (2024).........................% H

Crapps v. Nevada, No. 3:22-cv,00379-ART-CSD, 2024

WL 967441 at *2 (Nev. Mar 5, 2024).............................. 3

CTS Corp. v. Waldburger, 573 U.S. 1, 7-8 (2014)

DaimlerChrysler Corp v. Cuno, 547 U.S. 332 335 (2006)

Detroit Edison, Co. V. U.S., 56 Fed.Cl. 299, 302 (2003)

........................................................................ 20

Dolan v. City of Tigard, 512 U.S. 374, 392 (1994)

Equity Lifestyle Properties, Inc. v. Cnty. Of San Luis

Obispo, 548 F.3d 1184,1190 (9th Cir. 2008)..................3

Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387-88

(1947)............................................................ ................ 22

Federal Recovery of Washington, Inc. v. Wingfield, 162

OrApp. 150,158-59 (1999)

Financial Oversight & Magmt. Bd., 41 F.4th 29, 45 (1st

Cir. 2022)

First English Evangelical Lutheran Church of Glendale

v. City of Los Angeles, 482 U.S. 304, 315 (1987)

2, 9, 12, 19

Gentili v. Town of Sturbridge, 484 Mass. 1010, 1012

(Mass.2020).................................................................... 16

Graves v. United States, 160 Fed.Cl 562, 568 (2022)....8

Infinium Builders LLC & ICE Holdings LLC d/b/a

Ascent Construction v. Metropolitan Government of

Nashville & Davidson Cnty., No. 3:23-cv-00924, 2024

WL 4009874 at *7 (M.D. Tenn. Aug 30, 2024)............ 13

Integrated Logistics Support Systems Intern., Inc v.

U.S., 42 Fed.Cl. 30, 34 (1998)................ ....................... 20

Jacob’s v. U.S. 13, 16 (1933)

John R. Sand & Gravel Co. v. U.S., 457 F.3d 1345,

1355-56 (Fed. Cir. 2006)............................................. 2, 21

Juda v. United States, 6 Cl.Ct 411, 450 (1984)

Kimco Addition, Inc. v. Lower Platte S. Nat. Res. Dist.,

4, 15, 17

232 Neb. 289, 290-91, 293-95, (1989)

Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1, 9 (1984)

Knick v. Township of Scott, 588 U.S. 180, 189 (2019)... 3

Lingle v. Chevon USA.Inc.,544 U.S. 528, 53637 (2005)......................................................... 2, 8,12

Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 n.5

(1982) citing U.S. v. Kras, 409 U.S. 434, 445 (1973)...21

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 411 (1982)........................................................11

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)........................................................................... 4,14

Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128

n.8 (2007)...................................................... .................... 8

Mildenberger v. U.S., 91 Fed.Cl. 217 234-35 (2010)....13

NiZ'Chavez v. Garland, 593 U.S. 155,172 (2021)

Order of Railroad Telegraphers v. Railway Express

Agency, 321 U.S.342, 348-49 (1944).............................. 10

Petersen v. Port of Seattle, 94 Wash.2d 479, 483 (1980)

PGB Hanger, LLC v. United States, 170 Fed.Cl. 473,

481-82 (2024)..................................................................... 4

PGB Hanger, LLC v. United States, 170 Fed.Cl. 473,

481-82 (2024).............................................

Pumpelly v. Green Bay & Mississippi Canal Co., 80

U.S. 166,181 (1871)........................................................ 11

Rotkiske v. Klemm, 589 U.S. 8, 13 (2019)

10, 11

San Diego Gas & Elec. Co. v. City of San Diego, 450

U.S. 621, 655 n.22 (1981)........... ................................. 21

Weidner v. State, Dep’t of Transp. & Pub. Facilities, 860

P2d 1205,1212 (Alaska 1984)

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)

Statutes

Oregon State’s six-year Statute of limitations. Or. Rev.

Stat. 12.080(3)-(4)(2021

Bridget Tomlinson, Statute of Limitations in Rails-toTrails Act Compensation Claims, 56 Cath. U.L. Rev.

1307, (2007)

Petition for Writ of Certiorari

The Walton Family respectfully petitions for a writ of

certiorari to review the judgment of the Oregon Supreme

Court.

Opinions Below

The decision of the Oregon Supreme Court can be found

at Walton v. Neskowin Regional Sanitary Authority, 372

Or. 331 (2024), and is reprinted at Pet.App.39-40a. The

Oregon Appellate Court’s decision affirming the

Sanitary Authority’s motion to dismiss on statute of

limitations grounds can be found at Walton v. Neskowin

Regional Sanitary Authority, 314 Or. App. 124 (2021),

and is reprinted at Pet App. 47a.

Jurisdiction

The lower courts had jurisdiction over this case under

Article I, Section 18 of the Oregon Constitution, Article

XI, Section 4 of the Oregon Constitution, and the Fifth

Amendment of the United States Constitution. ORS

14.050 (circuit court); ORS 19.270 (appellate court &

supreme court). The Oregon Supreme Court entered

final judgment on May 23, 2024. PetApp.la. This Court

has jurisdiction under 28 U.S.C. § 1257(a),

Constitutional Provision

The Fifth Amendment to the U.S. Constitution provides

in relevant part, “nor shall private property be taken for

public use, without just compensation.”

Introduction and

Summary of Reasons for Granting the Petition

The fundamental constitutional wrong alleged in every

takings claim is not simply that the government has

taken property, but rather that it has taken property

and it has not met its obligation to provide just

compensation. The Takings Clause of the Fifth

Amendment is not meant “‘to limit the governmental

interference with property rights per se, but rather to

secure compensation in the event of otherwise proper

interference amounting to a taking.’” Lingle v. Chevron

U.S.A Inc., 544 U.S. 528, 536-37 (2005) (quoting First

English Evangelical Lutheran Church of Glendale v.

Cnty. of Los Angeles, 482 U.S. 304, 315 (1987)). Thus, a

physical occupation takings claim does not merely allege

that the government has occupied private property, but

also that the government has not provided just

compensation.

This Court has long understood that a cause of action

accrues, and a statute of limitations does not begin to

run until a “plaintiff has a ‘complete and present case °f

action’ - i.e., when she has the right to ‘file suit and

obtain relief.”’ Corner Post, Inc. v. Bd. Of Governors of

Federal Reserve System, 144 S.Ct. 2440, 2450 (2024)

(citing Green v. Brennan, 578 U.S. 547, 554 (2016)). In a

physical takings context, this occurs when “the

government physically takes possession of property

without acquiring title to it.” Cedar Point Nursery v.

Hassid, 594 U.S. 139,147 (2021); see also, John R. Sand

& Gravel Co. v. U.S., 457 F.3d 1345, 1355-56 (Fed; Cir.

2006) (“A takings claim accrues ‘when all the events

have occurred which fix the liability of the Government

and entitle the claimant to institute an action.’ In

addition, the claim only accrues if the plaintiff knew or

should have known of the existence of the events fixing

the government’s liability”) (cleaned up).

Despite this Court’s clear guidance on physical takings

accrual, many lower courts, including the Oregon

Supreme Court in this case, continue to strictly interpret

statute of limitations deadlines — despite when the act of

physical occupation is divorced from the government’s

refusal to pay just compensation. Walton v. Neskowin

Regl Sanitary Auth,, 550 P-3d 1, 18-19 (Or. 2024)

(holding the statute of limitations began to run when the

Sanitary Authority first installed its sewer line, not, as

the plaintiffs alleged, when the occupation became

adverse to the owners); Pet.App. 39a. This strict

adherence erects yet another hurdle for property

owners. See Equity Lifestyle Properties, Inc. v. Cnty. of

San Luis Obispo, 548 F.3d 1184, 1190 (9th Cir. 2008)

(“[A} takings claim . . . must be filed neither too early(unripe) nor too late (barred by a statute of

limitations).”); Knick v. Twp. of Scott, 588 U.S. 180, 189

(2019) (government takings requirements cannot

relegate property rights ‘“to the status of a poor relation’

among the provisions of the Bill of Rights.”) (citing

Dolan v. City of Tigard, 512 U.S. 374, 392 (1994)). This

hurdle, when combined with the continually abused and

misunderstood takings ripeness standard, affords the

government the extraordinary deference to declare

takings claims simultaneously “too early” and1'too late”

- forever keeping takings merits cases out of courts. See

Biddison v. City of Chicago, 921 F.2d 724, 726 (7th Cir.

1991) (“The incongruity of holding that Biddison’s

[takings] claim was too early as well as too late was not

lost on the district court[.]”); Crapps v. Nevada, No. 3:22cv-00379-ART-CSD, 2024 WL 967441 at *2 (Nev. Mar.

5, 2024) (“[T]he City argues Plaintiffs’ takings claim

must be dismissed as nonjusticiable because it is either

(1) too late ... or (2) too early[.]”); Avenida San Juan

P’ship v. City of San Clemente, 201 Cal.App.4th 1256,

1278 (Cal. App. Ct. 2011) (“In direct contrast to its

statute of limitations argument (too late), the City

argues that any inverse condemnation claim is unripe

(too early)[.]”).

As this case demonstrates, an incongruency in physical

takings statute oflimitations cases exists. The ..Oregon

Supreme Court held the Walton Family’s physical

takings case was brought outside the six-year statute of

limitations (too late) despite the fact the original

physical invasion, in the mid 1990s, was permissive.

Pet.App. 5a. To bring a timely claim under the Oregon

Supreme Court’s rule, the Walton Family would have

had to bring their takings claim before they were

actually injured by the Sanitary Authority’s occupation

- an Impossibility under current standing precedent.

Lujan v. Defenders of. Wildlife, 504 U.S. 555, 560-61

(1992) (reiterating that a plaintiff cannot bring a lawsuit

until they have suffered an injury in fact).

This diaspora does not exist in the Oregon Supreme

Court alone. Other courts too have addressed this same

quandary, With varying outcomes. See City ofAnchorage

v. Nesbett, 530 P.2d 1324, 1332 (Alaska 1975) (finding

that the right to damages, in an initially permissive

physical occupation, did not arise until the occupation

became adverse to the property owner); Kimco Addition,

Inc. v. Lower Platte S. Nat. Res. Dist., 232 Neb. 289, 29495 (1989) (holding that when a physical occupation is

initially permissive, said occupation “retains that

[prescriptive easement] character until notice that the

use is claimed as a matter of right is communicated to

the owner of the servient estate.”); Petersen v. Port of

Seattle, 94 Wash.2d 479, 483 (1980) (finding a

landowner’s right to compensation cannot be barred by

the passage of time). The split between these state court

decisions demonstrates that, despite this Court s

precedent regarding claim accrual and physical takings,

the loophole of initially permissive physical occupations

remains an exceedingly uncertain area of the law.

Without this Court’s review, property owners who agree

to work with the government - divorcing the physical

likft the Walton

occupation from the later injury

other

Family, are left with no recourse. No

constitutional civil rights plaintiff faces this type^of

hurdle, highlighting that more is needed to ensure that

property rights are not relegated to the “poor relation of

the Bill of Rights. Dolan, 512 U.S. at 392.

This Court should grant the Walton Family’s petition

for a writ of certiorari.

Statement of the Case

In the mid-1990s, the Neskowin Regional Sanitary

Authority recognized a need for additional sewer lines

throughout central coastal Oregon. PetApp.5-6a. In an

effort to establish this infrastructure, the Sanitary

Authority began working with homeowners like the

Walton Family to place sewer lines throughout the area.

Pet.App.5-6a. In the Walton Family’s case, the Sanitary

Authority entered into a purported agreement1 with the

Family’s late father permitting the installation of a

1 Whether or not this agreement exists is a matter of

some debate among the parties. However, both the

Oregon Appellate Court and-Oregon Supreme Court

assumed, for the sake of argument, that the agreement

did exist. Walton, 3140r.App. at 126-28; Walton, 372 Or.

at 358-60; Pet.App.37-38a. This Court should do the

same.

physical sewer line on their property in exchange for a

free sewer hookup when necessary down the line.

Pet.App.5a.

Pursuant to the purported agreement, sometime before

1995, the Sanitary Authority dug a trench on the Walton

Family’s residential property and buried a sewer line.

Pet.App.5a. The sewer line remained on the Walton

Family’s property with no incidents until 2015 when the

Sanitary Authority required the Walton Family to hook

up to its sewer system. Pet.App.5a. When the Walton

Family sought their free hook-up, the Sanitary

Authority denied their request, refusing to recognize the

existence of any agreement. Pet.App.5a. As a result, the

Walton Family were forced to pay. the sewer hook-up fee

themselves. Pet.App.5a.

Having been forced to pay for their own sewer hook-up,

in contravention of the purported agreement, the Walton

Family brought a takings lawsuit in Oregon state court,

demanding the Sanitary Authority pay just

compensation for physically occupying their property for

over twenty years. Pet.App.6a. The Walton Family

alleged that only when the Sanitary Authority reneged

on the agreement did the physical sewer line’s presence

on their property become adverse, ripening their

physical takings claim. Pet.App.6-7a. The, Oregon trial

court disagreed, granting the Sanitary Authority’s

motion for summary judgment on statute of limitations

grounds. Pet.App.53a. Specifically, the trial court held

that the Walton Family had to bring their claim within

six years of the start of the sewer line’s physical

occupation on their property — not when-the SanitaryAuthority refused to pay just compensation, making the

occupation adverse to them. Pet.App.51a.

The Oregon Appellate Court affirmed. Pet.App.47a. It

too found the six-year statute of limitations began

running “when that physical occupation began.” Walton,

314 Or.App. at 128; Pet.App.45a. The court of appeals

reasoned that the taking occurred not when just

compensation was denied but instead when the property

was first occupied, even if that occupation was initially

permissive. Pet.App.45-46a. Thus, despite the lack of

just compensation, the Walton Family*s physical takings

r»laim accrued when the sewer line was first placed on

their property in the mid-90s. Pet.App.46-47a.

The Oregon Supreme Courtgranted review, limiting its

analysis to whether a constitutional takings claim based

on a physical occupation fully accrues and the statute of

limitations begins to run before the government refuses

to provide just compensation. Pet.App.4a. It held, like

the Oregon Court of Appeals, that physical occupation

takings elflims accrue “when the occupation oceurs[.J”

Walton, 372 Or. at 358; PetApp.39-40a. In the Walton

Family’s case, that meant when the Sanitary Authority

installed its sewer lines in 1995. Pet.App.lla. The court

did not examine whether the installation’s initially

permissive nature, effected the takings analysis.

Pet.App.37-38a. Instead, the court reasoned any

discussion of the sewer line’s permissive placement

would affect only whether the Sanitary Authority

breached the purported agreement with the Walton

Family; Pet.App.39a. In other words, the Walton Family

should have brought a breach of contract claim instead

of a takings claim. Pet.App.39a. This petition follows.

Reasons for Granting the Petition

The doctrines of standing and the statute of limitations

were established to prevent a plaintiff from bringing a

lawsuit either “too early” or “too late”. DaimlerChrysler

Corp, v. Cuno, 547 U.S. 332, 335 (2006); CTS Corp. v.

Waldburger, 573 U.S. 1, 7-8 (2014). But both ultimately

“boil down to the same question” of whether a plaintiff

has properly alleged an injury such that a claim has

accrued. Medlmmune, Inc. v. Genentech, Inc., 549 U.S.

118,128 n.8 (2007). As a general matter, a claim accrues

when a plaintiff has “a complete and present cause of

action.” Bay Area Laundry & Dry Cleaning Pension

Trust Fund v. Ferbar Corp,, 522 U.S. 192, 201 (1997)

(citing Rawlings v. Ray312 U.S. 96, 98 (1941); See also,

Graves v. United States, 160 Fed.Cl. 562, 568 (2022)

(‘^Generally, ‘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.”’”) (internal citations omitted).

In the Fifth Amendment physical takings context, this

is when the government has physically acquired private

property for a public use and refused to provide just

compensation. Cedar Point Nursery, 594 U.S. at 147

(“Whien the government physically acquires private

property for a public use, the Takings Clause imposes a

clear and categorical obligation to provide the owner

with just compensation.”). The government’s refusal to

pay just compensation in the wake of a physical

occupation is the triggering event for claim accrual.

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536-37

(2005) (“As its text makes plain, the Takings Clause

‘does not prohibit the taking of private property, but

instead places a condition on the exercise of that power.’

In other words, it ‘is designed not to limit the

governmental interference with property rights per se,

but rather to secure compensation in the event of

otherwise proper interference amounting to a taking.’”)

(citing First English Evangelical Lutheran Church of

Glendale v. Cnty. of Los Angeles, 482 U.S. 304, 314-15

(1987)). However, many courts have held, contrary to

this view, that physical takings claims accrue only upon

the physical occupation itself. Boling v. U.S., 220 F.3d

1365,1370 (Fed. Cir. 2000) (“[TJhe key date for [physical

taking] accrual purposes is the date on which the

plaintiffs land has been clearly and permanently

taken.”).

This Court has never addressed the timeframe for

physical takings accrual when the physical occupation

itself is divorced from the government’s refusal to pay

just compensation. See Barlow & Haun, Inc. v. U.S., 87

Fed.Cl. 428, 435 (2009) (“There is, at present, some

doubt regarding the date of the accrual of a physical

taking claim versus the date at which such a claim

becomes ripe for litigation.”); Bridget Tomlinson, Statute

of Limitations in Rails-to-Trails Act Compensation

Claims, 56 Cath. U. L. Rev. 1307,__ (2007) (observing

that, under current jurisprudence, a landowner may not

have a viable physical takings claim until after the

statute of limitations has already run). And although

this is a rare occurrence, the Walton Family’s case is a

prime example of what happens when a property owner

agrees to willingly work with the government and the

government later refuses to pay just compensation divorcing the physical occupation from the refusal to pay

and leaving property owners with no recourse. The

burden of the government’s failure to pay just

compensation should not fall on the property owner. And

property owners should not be expected to bring a

physical takings claim until the government

affirmatively disclaims its obligation to pay, thus

making the previously permissive use adverse.

Lower Courts Conflict as to When Physical

Takings Claims Accrue, Leading to

Disparate Applications of Statutes of

Limitations

This Court consistently reinforces the rule that plaintiffs

must proactively bring lawsuits and avoid “sleeping” on

their rights. Burnett v. New York Cent. R. Co., 380 U.S.

424, 428 (1965). Hence the almost unilateral

reaffirmance of statute of limitations cases across the

Country. Order of Railroad Telegraphers v. Railway

Express Agency, 321 U.S. 342, 348-49 (1944). But just as

this Court avoids creating harsh bright-line rules, it too

should avoid unworkable statutes of limitations that

eliminate all judicial recourse for unoffending plaintiffs,

particularly in the takings context. Ark. Game & Fish

Comm’n v. U.S., 568 U.S. 23, 31-32 (2012) (“In view of

the nearly infinite variety of ways in which government

actions or regulations can affect property interests, the

Court has recognized few invariable rules in this area.”).

This Court has spent the last decade reinforcing its

takings jurisprudence in an effort to restore “takings

claims to the full-fledged constitutional status the

Framers envisioned when they included the Clause

among the other protections in the Bill of Rights.” Knick,

588 U.S. at 189. Yet, significant hurdles still remain for

property owners to get to the merits of their takings case

- one of those hurdles remains, as in the Walton

Family’s case, an inflexible adherence to statutes of

limitations.

Generally, a statute of limitations cannot begin to run

until a claim has fully accrued.2 Rotkiske v. Klemm, 589

2 Any restrictions on a self-executing right must be

viewed through an extraordinarily careful lens,

U.S. 8, 13 (2019). And a claim does not accrue until a

plaintiff has a “right to ‘file suit and obtain relief”, which

necessarily means a plaintiff must have suffered an

“injury required to press [a] claim in court.” Comer Post,

Inc., 114 S.Ct. at 2450-51 (internal citation omitted).

The injury in a physical takings case is, at its core, the

government's refusal to provide just compensation not

as the Oregon Supreme Court suggests the physical

occupation itself. See City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 717 (1999)

(“Although the government acts lawfully when,

pursuant to proper authorization, it takes property and

provides just compensation, the government’s action is

lawful solely because it assumes a duty, imposed by the

Constitution, to provide just compensation.”).

Physical occupation or invasion takings claims arise

from the idea that physically invading private property

prevents the owner from using it in another capacity,

resulting in a taking. See Pumpelly v. Green Bay &

Mississippi Canal Co., 80 U.S. 166, 181 (1871) (“[T|t

remains true that where real estate is actually invaded

by superinduced additions of water, earth, sand, or other

material, or by having any artificial structure placed on

it, so as to effectively destroy or impair its usefulness, it

is a taking, within the meaning of the Constitution [.]”);

Loretta v. Teleprompter Manhattan CATV Corp., 458

U.S. 419,441 (1982) (“We affirm the traditional rule that

especially when applying statutes of limitations, which

somewhat arbitrarily wipe out even constitutional

claims based on merely the passage of time. Barlow &

Haun, Inc., 87 Fed.Cl. at 434 (“Denial of a taking claim

on the basis of the defense of limitations is warranted

only when the facts alleged demonstrate conclusively

that such a decision is required as a matter of law.”)

(citing Juda v. United States, 6 Cl.Ct. 441, 450 (1984)).

a permanent physical occupation of property is a

taking.”); Cedar Point Nursery, 594 U.S. at 152-62 (any

invasion of property is presumptively a taking requiring

compensation).

Consequently,

whenever

the

government physically occupies or invades property that

is not its own, whether that occupation is temporary or

permanent, the government effects a per se, categorical

taking necessitating the payment of just compensation.

Cedar Point Nursery, 594 U.S. at 152 (“The upshot of

this line of precedent is that government-authorized

invasions of property — whether by plane, boat, cable, or

beachcomber - are physical takings requiring just

compensation.”).

The government’s duty to pay just compensation is non

discretionary. Lingle, 544 U.S. at 536-37 (“[The Takings

Clause] ‘is designed not to limit the governmental

interference with property rights per se, but rather to

secure compensation in the event of otherwise proper

interference amounting to a taking.”) (internal citation

omitted); Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1, 9

(1984) (“[Governments are] obligated by the Fifth

Amendment to provide ‘just eompensation’[.]”). And,

even in a physical takings case, it is not the action of

physical occupation that triggers the taking but the

government’s failure to provide the required just

compensation.3 See First English Evangelical Lutheran

Church of Glendale, 482 U.S. at 314 (“[The] government

action that works a taking of property rights necessarily

3 The government’s failure to pay just compensation acts

as the triggering accrual date because that is the

moment “the plaintiff Was or should have been aware [of

the government’s liability].” Graves v. United States, 160

Fed.Cl. 562, 568 (2022). At any time before that, the

plaintiff was not yet injured and : did not yet know a

lawsuit was necessary.

implicates the ‘constitutional obligation to pay just

compensation.”’) (citing Armstrong v. United States, 364

U.S. 40, 49 (I960)); Jacobs v. U.S., 290 U.S. 13,16 (1933)

(“[The right to just compensation] was guaranteed by the

Constitution. The fact that condemnation proceedings

were not instituted and that the right was asserted in

suits by the owners did not change the essential nature

of the claim. The form of remedy did not qualify the

right.”); Infinium Builders LLC & KE Holdings LLC

d/b/a Ascent Construction v. Metropolitan Government

of Nashville & Davidson Cnty., No. 3:23-cv-00924, 2024

WL 4009874 at *7 (M.D. Tenn. Aug. 30, 2024) (“The

taking itself does not violate a property owner’s rights;

rather, it is the taking without compensation. And the

claim accrues upon the taking without compensation.”).

More often than not this distinction between the time of

the government’s physical occupation and the failure to

pay just compensation is of little importance. This is

because these incidents typically occur concurrently.

However, that is not always the case. Benedict v. City of

New York, 98 F. 789, 790 (2d Cir. 1899) (“The

fundamental doctrine that private property cannot be

taken for public uses without just compensation does not

require that the compensation be made in all cases

concurrently [.] ”) - In some instances, however, like in the

Walton Family’s case, the time of the physical

occupation is divorced from the government’s refusal to

pay, leading to dispute over the claim accrual date. See

Mildenberger v. U.S., 91 Fed.Cl. 217, 234-35 (2010)

(explaining the claim accrual date for cumulative

physical damage in takings cases).

A. Lower Courts Conflict as to When a Physical

Takings Claim Accrues When the Physical

Occupation is Divorced from the Government’s

Failure to Pay

Cedar Point confirmed that physical takings claims are

per se takings, requiring the payment of just

compensation. 594 U.S. at 147-48. Yet many lower

courts remain confused about when these claims

actually accrue, particularly when the time of the

physical occupation is divorced from the government’s

refusal to pay just compensation. Some property owners

thus, in the states who interpret accrual as the time of

the occupation, are time barred from bringing their

takings claims.

Here, the Oregon Supreme Court ruled all physical

takings claims accrue only when the “physical

occupation occurs.” Walton, 372 Or. at 352-53;

Pet.App.36-37a. But requiring a property owner to bring

a lawsuit before they are actually injured - as the

Sanitary Authority argued was appropriate - defies the

very laws of standing. Lujan, 504 U.S. at 560-61

(explaining the “constitutional minimum” for standing

requires a plaintiff to have suffered an injury in fact).

What is required for a physical takings claim to accrue

is for the government to physically occupy a piece of

private property and that government refuse to pay just

compensation. The Sanitary Authority occupied the

property in the 90s. PetApp.3a. But it only refused to

pay in 2014 when it denied the Walton Family their free

hook-up. Pet.App.57a. That refusal to pay should be the

operative date for triggering Oregon State’s six-year

statute of limitations. Or. Rev. Stat. § 12.080(3)-(4)

(2021). But the Oregon Supreme Court’s decision held

otherwise, pointlessly demanding the Walton Family

have brought their physical takings claim in the 1990s -

before they were even injured. Pet.App.37a. Even before

Cedar Point, this couldn’t be the case. Whitmore v.

Arkansas, 495 U.S. 149,155 (1990) (“To establish an Art.

Ill case or controversy, a litigant first must clearly

demonstrate that he has suffered an ‘injury in fact.’ That

injury, we have emphasized repeatedly, must be

concrete in both a qualitative and temporal sense.”).

Unfortunately, the Oregon Supreme Court is far from

the only legal jurisdiction forcing physical takings

claimants out of court. In Casitas Municipal Water

District v. United States, 708 F.3d 1340, 1359-60 (2013),

the United States Federal Circuit held “[t]he act that

causes accrual of a physical taking claim is the act that

constitutes a taking.” Making no distinction between the

physical occupation itself and the government’s failure

to provide just compensation. The Federal Circuit

reasoned this was appropriate because physical takings,

unlike regulatory takings, do not require a detailed ad

hoc analysis - the physical occupation is the taking

itself. Id. at 1345 n.3.

Contrary to the Federal Circuit and Oregon, however,

other jurisdictions faithfully view the denial of just

compensation in physical takings as the triggering date

for claim accrual. In City of Anchorage v. Nesbett, 530

P.2d 1324 (Alaska 1975)4, a property owner brought suit

4 Both the Nesbett & Kimco Addition, Inc. cases are

somewhat distinguishable as prescriptive easement

cases. Nesbett, 530 P.2d at 1327; Kimco Addition, Inc.,

232 Neb. at 293-95. However, takings and prescriptive

easements bear many similarities, including a

requirement to pay for what is lost. Weidner v. State,

Dep’t of Transp. & Pub. Facilities, 860 P.2d 1205, 1212

(“The theory of prescriptive easement does not grant the

State affirmative authority to take property without just

to dispossess the City of Anchorage of a power line they

had installed on the plaintiffs property. Id. at 1326-27.

The line was installed prior to the plaihtiffs ownership

of the land. Id. at 1327. After the plaintiff became the

owner of the land, however, the City approached the

plaintiff asking to be granted an easement to anchor

down a guy wire. Id. The plaintiff permitted the

easement but specifically denied the City the right to

maintain any other type of electric transmission system

across the property. Id. The City did not object to the

omission. Id. The plaintiffs then, a few years later,

requested the City remove the existing powerline. Id.

compensation.”) (emphasis in original); Gentili v. Town

of Sturbridge, 484 Mass. 1010, 1012 (Mass. 2020) (“[A]

prescriptive easement is not a means for the government

‘to take private property without just compensation.’”)

(internal citation omitted). The primary difference, the

permissive/passive nature of a prescriptive easement

and the hostile/active nature of a taking, effects only the

cause of action. For example, the lack of knowledge in

certain physical takings distinguishes cases like the

Walton Family’s - where they knew of the occupation

but not of the Sanitary Authority’s refusal to pay just

compensation (a necessary element in a physical taking)

- from prescriptive easement cases where the “open” /

known nature of the government’s acquisition is

engrained in the cause of action. The government

payment of just compensation, however, is only an

element of a takings claim not a prescriptive easement

claim, where any damages a property owner may recover

depends on whether they “slept” on their rights. See

Gentili, 484 Mass, at 1012 (“[T]he prescriptive period . .

. requires a private landowner to bring a [takings] action

... within a specified period of time. At the expiration of

the prescriptive-period, the landowner’s right to bring

suit is extinguished”) (internalcitation omitted).

After the City declined, the plaintiffs filed suit to compel

the City to remove the powerline. Id. The City answered

asserting that it had obtained a prescriptive easement

under Alaska law. Id. at 1327-28. The lower court found

the City did not have a prescriptive easement because it

had maintained the power line with the implied

permission of the plaintiffs. Id. at 1328. The Alaska

Supreme Court affirmed in part and reversed in part,

holding, as relevant to damages, that “[t]he right to

damages [in a land use case did] not arise until the City

refuse[d] to remove the power line.” Id. at 1332. In other

words, the plaintiff only suffered a concrete injury once

the City refused to refused to remove its physical

structure and pay the owed just compensation. Id.

Nebraska also has found the government’s refusal to pay

owed just compensation as the triggering event for a

statute of limitations. KLmco Addition, Inc., 232 Neb. at

290-91. In Kimco Addition, Inc. v. Lower Platte South

Natural Resources District, the plaintiff sought damages

for an expanded portion of an easement that the

government acquired through its land. Id. The district

court dismissed the plaintiffs motion for summary

judgment, finding the plaintiffs claim was time barred.

Id. The Nebraska Supreme Court affirmed in part and

reversed in part, holding the permissive beginning of the

government’s easement occupation, prevented the

statute of limitations from running on a takings claim which was necessarily adverse. Id. at 293-95.

By finding adversity a necessary sub-element for a

takings claim, these prescriptive easement cases

pinpoint the exact problem with the Oregon Supreme

Court’s decision. And while this Court granted certiorari

in Cedar Point Nursery to solidify the per se nature of

physical takings, a new problem has come to light.

Despite this Court’s guidance, lower courts remain

confused about the actual accrual date for physical

takings claims, particularly when it comes to whether it

is the physical occupation or the government’s failure to

pay just compensation that triggers the cause of action.

Making matters worse, this accrual issue is often fatal

to the claim itself, rendering a constitutional claim lost

forever. Federal Recovery of Washington, Inc. v.

Wingfield, 162 Or.App. 150, 158-59 (1999) (“[Because

plaintiffs only claim was barred by the statute of

limitations, plaintiff was not entitled to . . . relief.”).

Without this Court’s intervention, property owners

whose physical takings claims are divorced from a

government’s refusal to pay just compensation stand to

lose court access over a vital constitutional claim. This

Court should grant the petition to ensure that the lower

courts adhere to the same modest claim accrual date for

physical takings, allowing property owners their day in

court to challenge land use regulations.

B. An Existing Agreement Does Not Turn a

Property Owner’s Takings Claim Into a Breach

of Contract Claim

The Framers specifically intended for the Constitution

to protect the property rights of the people against

encroachment from the government. James Maddison

famously stated that it “is not a just government, nor is

property secure under it, where the property, which a

man has in his personal safety and personal liberty, is

violated by arbitrary seizures of one class of citizens for

the service of the rest.”5 Without the right to private

5 James Maddison, “Property” (March 29, 1792).

(

property, there is no liberty. The same cannot be said for

contracts.

Takings Claims rooted in the Fifth Amendment are

unique. As the only self-executing clause in the Bill of

Rights, the Fifth Amendment Takings Clause

inherently includes the requirement that the

government provide just compensation for a taking. See

First English, 482 U.S. at 315 (recognizing a landowner

is entitled to bring a takings claim and recover just

compensation because of the “self-executing character”

of the Fifth Amendment); In re Financial Oversight &

Mgmt. Bd., 41 F.4th 29, 45 (1st Cir. 2022) (explaining

the Takings Clause uniquely spells out a remedy). In

contrast, a breach of contract claim is based in statute

or common-law, with no inherent constitutional

remedy.6 Advon Corp. v. Coopwood’s Air Conditioning

Inc., 517 F.Supp.3d 656, 662-63 (S.D. Tex. 2021) (stating

a breach of contract claim is based in either the Uniform

Commercial Code or common-law). Nothing, however,

states that a plaintiff must bring only one or the other.

To the contrary, plaintiffs often raise both claims in the

same lawsuit. PGB Hanger, LLC v. United States, 170

Fed.Cl. 473, 481-82 (2024) (evaluating both a breach of

contract and takings claim in the same suit).

6 “A breach of contract claim accrues ‘when all the events

have occurred which fix the liability of the Government

and entitle the claimant to institute an action.’ ‘The

mere announcement that the Government does not

intend to perform its contractual obligation is a

repudiation, not a breach, and that repudiation does not

commence the running of the statute of limitations.’

Such a repudiation ripens into a breach either when the

Government actually fails to honor its obligations or

when the promise brings suit.” Barlow & Haun, Inc., 87

Fed.Cl. at 435-36 (internal citations omitted).

That does not mean, however, that both claims need to

be brought or that one claim can be substituted for the

other. Instead, because a physical takings claim is

directly tied to the property itself and utilizes the unique

self-executing remedy of just compensation, takings

claims cannot be directly substituted for breach of

contract claims even where the claim is tied to an

agreement and the remedy is damages. See Integrated

Logistics Support Systems Intern., Inc. v. U.S., 42

Fed.CL 30, 34 (1998) (“|T]akings claims are not

presumed to be foreclosed by claims for breach of express

contract merely because the claims share the same

factual background.”).

In the Walton Family’s case, there was never a formal

transfer of property. Pet.App.5a. Rather the Walton

Family permitted the Sanitary Authority to occupy a

portion of their property in exchange for the promise of

a future free hook-up. Pet.App.5a. The Sanitary

Authority’s later repudiation of that free hook-up did not

obviate the Walton Family’s physical takings claim,

which remained tied to the property. Atlas Corp. v.

United States, 895 F,2d 745, 756-58 (1990) (reaching the

merits of claims for breach of express contract, breach of

implied contract, and Fifth Amendment taking);

Pet.App.5a. Particularly as the Walton Family’s claim

directly challenged the Sanitary Authority’s sewer line’s

physical presence on their property without the payment

ofjust compensation not the Sanitary Authority’s failure

to honor the alleged agreement. See Barlow & Haun,

Inc., 87 Fed.CL at 439 (finding a plaintiffs success on

concurrently alleged takings and breach of contract

claims depends on “whether the property rights alleged

to have been taken were solely created by the terms of

the contract.”); Pet.App.39a. The purported existence of

an agreement should not be an impediment to the

Walton Family raising and a court analyzing the Walton

Family’s physical takings claim. Detroit Edison Co. v.

U.S., 56 Fed.Cl. 299, 302 (2003) (recognizing that rights

existing independently of a contract cannot be restricted

to contractual remedies).

II.

Without This Court’s Intervention, Property

Owners Are Uniquely Deprived

Adjudication of Constitutional Claims

Local governments have every incentive to avoid

reaching “merits” decisions. See San Diego Gas & Elec.

Co. v. City of San Diego, 450 U.S. 621, 655 n.22 (1981)

(Brennan, J., dissenting) (quoting article advising city

attorneys on legal tactics to avoid judicial resolution of

takings claims). Eliminating takings claims either

through ripeness or statute of limitations serves exactly

that purpose. Bay-Houston Towing Co., Inc. v. U.S., 58

Fed.Cl. 462, 471 (2003) (“[A] strict interpretation of the

ripeness doctrine would provide agencies with no

incentive to issue a final decision.”); John R. Sand &

Gravel Co., 552 U.S. at 133-34 (recognizing statutes of

limitations often protect a defendant’s case-specific

interests).

This effect is well known to this Court and others, which

emphasizes the importance of access to courts. Logan v.

Zimmerman Brush Co., 455 U.S. 422, 430 n.5 (1982)

(finding the due process right of access to courts exists

when “fundamental interests are present and the State

has the exclusive control over ‘the adjustment of [the]

legal relationship[s]’ involved.”) (citing U.S. v. Kras, 409

U.S. 434, 443 (1973)). If this Court fails to explain the

correct claim accrual date for physical takings claims,

one can expect these “shell games” to continue and

property owners to continue to lose access to courts. But

see Niz-Chavez v. Garland, 593 U.S. 155, 172 (2021) (“If

men must turn square corners when they deal with the

government, it cannot be too much to expect the

government to turn square corners when it deals with

them/’); Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380,

387-88 (1947) (Jackson, J., dissenting) (“It is very well to

say that those who deal with the Government should

turn square corners. But there is no reason why the

square comers should constitute a one-way street.”).

CONCLUSION

This Court should grant the petition.

DATED: October 17, 2024.

Respectfully submitted,

James J. Walton

3681 Augusta National Drive

Salem, OR 97302

Telephone: (541)514-8112

Jwalton8l4@comcast.net

Pro Se Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.