Petition for Writ of Certiorari — John Rogne, Petitioner v. City of Catoosa, Oklahoma

NO. ________

In the

Supreme Court of the United States

JOHN ROGNE,

Petitioner,

v.

CITY OF CATOOSA, OKLAHOMA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

WILL K. Wright, Jr.

Counsel of Record

WRIGHT LAW, PLC

P.O. BOX 982

Claremore, OK 74018

(918) 691-0447

wkw@wkwlex.com

Counsel for Petitioner

May 18, 2026

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

This Court held that a government violates the

Takings Clause the moment it takes private property

without compensation. Knick v. Township of Scott, 588

U.S. 180, 184–85 (2019). Government cannot nullify or

moot a property owner’s Fifth Amendment right to

compensation by rescission of its action. Id. Property

owners may sue for compensation without first exhausting other remedies. Id. at 185.

City served Rogne with a second cease and desist

order and then physically took possession of Rogne’s

property by constructing a barrier fence, denying him

from stockpiling dirt on his vacant lots. Rogne sued in

state court for a taking without just compensation and

lost on a prudential rule of exhaustion and mootness

based on City’s rescission.

He refiled his Takings Clause claim in federal

court under the Oklahoma savings statute because

the prior action failed other than on the merits. The

district court dismissed. The Tenth Circuit affirmed,

holding Rogne’s Takings Clause claim was resolved on

the merits, citing the state appellate court, “ . . . as a

matter of law there was no taking because Mr. Rogne

was granted relief as soon as he sought an administrative remedy and the City rescinded the Cease and

Desist Order.”

THE QUESTION PRESENTED IS:

Is the application of a prudential rule of exhaustion,

where the only relief is voluntary cessation of government’s physical possession, a decision on the merits of

an uncompensated Takings Clause claim?

ii

PARTIES TO THE PROCEEDINGS

Petitioner and Plaintiff-Appellant below

●

John Rogne

Respondent and Defendant-Appellee below

●

City of Catoosa, Oklahoma

iii

LIST OF PROCEEDINGS

U.S. Court of Appeals for the Tenth Circuit

No. 25-5039

John Rogne, Plaintiff-Appellant v. City of Catoosa,

Defendant-Appellee

Judgment: February 17, 2026

_________________

U.S. District Court, N.D. Oklahoma

No. 24-cv-00307

John Rogne, Plaintiff v. City of Catoosa, Defendant

Judgment: February 21, 2025

_________________

Oklahoma Court of Civil Appeals, Division III

No. 121,026

John Rogne, Plaintiff-Appellant v. City of Catoosa,

Defendant-Appellee

Judgment: June 29, 2023

_________________

Rogers County, Oklahoma District Court

No. CJ-2014-0420

John Rogne, Plaintiff v. City of Catoosa, Defendant

Judgment: July 18, 2022

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ..................................... vii

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 1

STATEMENT OF THE CASE .................................... 2

I.

Factual Background ......................................... 2

II. Procedural History ........................................... 4

A. State trial court and appeal ....................... 4

B. Federal case and appeal ............................. 6

REASONS FOR GRANTING THE PETITION ......... 7

I.

The Question Presented is Important ............. 7

II. Certiorari Should be Granted to Resolve

Whether a Prudential Rule of Exhaustion

(Ripeness Doctrine) and Rescission (Mootness Doctrine) Can Bar a Judiciable Claim

for Just Compensation ................................... 14

A. Prudential Exhaustion is Not a Bar ........ 14

B. Rescission or Mootness Does Not

Nullify a Fifth Amendment Takings

Claim ......................................................... 17

III. This is Not a San Remo Preclusion Trap ...... 19

v

TABLE OF CONTENTS (Cont.)

Page

IV. Oklahoma Savings Statute Tolls Statute of

Limitations of a Section 1983 Case ............... 20

V. Oklahoma Considers its Takings Clause as

Coexistent with the Fifth Amendment’s

Takings Clause ............................................... 22

CONCLUSION.......................................................... 26

vi

TABLE OF CONTENTS (Cont.)

Page

OPINIONS AND ORDERS

Order and Judgment, U.S. Court of Appeals for

the Tenth Circuit (February 17, 2026) .............. 1a

Opinion and Order, U.S. District Court

for the Northern District of Oklahoma

(February 21, 2025) .......................................... 21a

Opinion, Court of Civil Appeals of the State

of Oklahoma (June 29, 2023) ........................... 52a

Order and Judgment, Rogers County District

Court (July 18, 2022) ........................................ 60a

OTHER DOCUMENTS

Cease and Desist Order, Issued by the Catoosa

City Manager (December 30, 2011) ................. 65a

Image of Rogne Property

(Photo Circa 2012) ............................................ 69a

vii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Abbitt v. Franklin,

731 F.2d 661 (10th Cir. 1984) ........................... 20

Arbuckle Abstract Co. v. Scott,

975 P.2d 879 (Okla. 1998) ................................. 16

Board of Regents v. Tomanio,

446 U.S. 478 (1980) ........................................... 20

Brannon v. City of Tulsa,

932 P.2d 44 (Okla. Civ. App. 1996) ................... 22

Calvert v. Swinford,

2016 OK 100, 382 P.3d 1028 (Okla. 2016)........ 22

Carter v. City of Oklahoma City,

862 P.2d 77, 1993 OK 134 (Okla. 1993)............ 24

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ........................................... 12

Church of Scientology of Ca. v. United States,

506 U.S. 9 (1992) ............................................... 18

Clegg v. United States,

112 F.2d 886 (10th Cir. 1940) ............................. 9

Cole v. Josey,

457 P.3d 1007, 2019 OK 39 (Okla. 2019).......... 21

ConocoPhillips Co. v. Henry,

520 F.Supp 2d 1282 (N.D. Okla. 2007) ............. 23

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

482 U.S. 304 (1987) ..................... 5, 10, 11, 12, 18

viii

TABLE OF AUTHORITIES (Cont.)

Page

Friends of Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

528 U.S. 167 (2000) ..................................... 17, 18

Gamble v. State of Oklahoma,

583 F.2d 1161 (10th Cir. 1978) ......................... 18

Gottsch v. Ireland,

358 P.2d 1097 (1961 OK 4) ................................. 9

Henthorn v. Oklahoma City,

1969 OK 76, 453 P.2d 1013 (Okla. 1969).......... 24

Jacobs v. United States,

290 U.S. 13 (1933) ............................................. 12

Knick v. Township of Scott,

588 U.S. 180 (2019) ............. i, 8, 11, 12, 16-18, 22

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) ........................................... 15

Mattoon v. City of Norman,

617 P.2d 1347,

1980 OK 137 (Okla. 1980) ........................... 16, 23

Mitchum v. Foster,

407 U.S. 225 (1972) ........................................... 15

North Carolina v. Rice,

404 U.S. 244 (1971) ........................................... 18

Providential Dev. Co. v. United States Steel

Co., 236 F.2d 277 (10th Cir.1956) ....................... 9

San Remo Hotel v. City and County of San

Francisco, 364 F.3d 1088 (9th Cir. 2004) ......... 19

St. Paul Fire & Marine Ins. Co. v. Barry,

438 U.S. 531 (1978) ........................................... 18

ix

TABLE OF AUTHORITIES (Cont.)

Page

Swift v. McPherson,

232 U.S. 51 (1914) ............................................... 9

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) ........................................... 12

Twashakarris, Inc., v. Immigration and

Naturalization Serv.,

890 F.2d 236 (10th Cir. 1989) ........................... 21

United States v. Dow,

357 U.S. 17 (1958) ....................................... 12, 13

United States v. Pewee Coal Co., Inc.,

341 U.S. 114 (1951) ........................................... 11

Williams v. City of Guthrie,

109 Fed. App’x. 283 (10th Cir. 2004) ................ 20

Williams v. State ex rel. Dep’t of Transp.,

2000 OK Civ App 19,

998 P.2d 1245 (2000) ......................................... 16

CONSTITUTIONAL PROVISIONS

Okla. Const. Art. II, § 24 ...................................... 2, 22

U.S. Const. amend. V ........ i, 1, 6, 11-13, 15, 17, 20, 22

U.S. Const. amend. XIV .......................................... 1, 6

STATUTES

12 O.S. § 100 ............................................... 2, 6, 20, 21

28 U.S.C. § 1254(1) ..................................................... 1

42 U.S.C. § 1983 .......................................... 2, 6, 15, 20

x

TABLE OF AUTHORITIES (Cont.)

Page

OTHER AUTHORITIES

Edmonds, C,

Prudence or Abdication? Prudential

Ripeness and the Federal Forum

Guarantee, UNIV. OF ILL. LAW REVIEW

ONLINE, 132 (2025) ...................................... 14, 15

1

OPINIONS BELOW

The Opinion of the U.S. Court of Appeals for the

Tenth Circuit was entered on February 17, 2026 and

is included at App.1a. The Opinion and Order of the

U.S. District Court for the Northern District of Oklahoma, dated February 21, 2025 is included at App.21a.

JURISDICTION

The judgment of the Tenth Circuit court of appeals

was entered on February 17, 2026. (App.1a) No petition

for rehearing was filed. This petition is timely filed.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the U.S. Constitution

provides, in part, “nor shall private property be taken

for public use, without just compensation.” U.S. Const.

amend. V.

The Fourteenth Amendment provides, in part,

“nor shall any state deprive any person of . . .

property.” U.S. Const. amend. XIV.

The Oklahoma Constitution also provides, in

part, “private property shall not be taken or damaged

2

for public use without just compensation.” Article II,

Section 24, Okla. Const.

The Oklahoma savings statute, under Title 12

O.S. § 100, grants an additional one year to refile a

lawsuit if the party failed other than on the merits.

Title 42 U.S.C. § 1983 provides, in part, that

every person who subjects any citizen of the United

States to the deprivation of any rights secured by the

Constitution shall be liable to the party injured in an

action at law.

STATEMENT OF THE CASE

I.

Factual Background

In 2009, the City of Catoosa (“City”) issued a Cease

and Desist Order (“2009 CDO”) against Mr. Rogne

(“Rogne”) prohibiting him from stockpiling dirt on his

private property because the City alleged he needed a

permit from the City. App.2a.

After conducting an administrative hearing, the

hearing officer held a permit was not required. The

City rescinded this 2009 CDO. Id. The City did not pay

Rogne any compensation.

Undeterred, in 2011, the City subsequently served

him with a second Cease and Desist Order (“2011

CDO”) claiming, once again, he needed a permit to

stockpile dirt on his property and that he was in

violation of City building codes – issues that were

previously raised, and ruled on, in the 2009 Administrative Hearing. App.65a. Then, the City physically

3

came on to Rogne’s private property and constructed

an orange barrier fence hung by six-foot rebar, and

hung a sign, “No Dumping”, thereby preventing Rogne

from using his property. App.69a.

The 2011 CDO mentioned Rogne could go to an

administrative hearing or set up a meeting with City

officials; it was optional. App.65a. Rogne and his

attorney chose to meet with City officials, including the

City attorney, City code officers, and City engineers,

where they attempted to resolve this 2011 CDO, but

to no avail. The City maintained it was shutting

Rogne down and it refused to rescind the 2011 CDO.

App.62a-63a.

The City did not initiate any formal condemnation actions to support its physical taking. The City

did not pay compensation to Rogne. The City continued

to physically occupy Rogne’s property with the orange

barrier fence for six years and continued its control

and dominion over his property even after it was

served with a lawsuit. The City did not rescind its

physical occupation until after Rogne presented the

City, at a second administrative hearing, with the

exculpatory depositions of City officers’, and its hired

civil engineer’s testimony during discovery, that the

2011 CDO contained falsified information. App.2a,

fn. 2. Rogne was barred from putting on this evidence

with the court as the City filed its motion to dismiss

and the court granted it on grounds there was no case

or controversy, no judiciable claim, and the case was

moot on grounds City rescinded its physical occupation and rescinded its 2011 CDO. App.64a.

Rescission was the only remedy provided to Rogne

— not compensation.

4

II. Procedural History

A. State trial court and appeal

On October 29, 2014, Rogne filed his state lawsuit

against the City as an unconstitutional taking

without just compensation. App.2a-3a, fn. 2. Rogne

expressly alleged “City has caused damages by way of

inverse condemnation . . . The City of Catoosa has

taken away Plaintiff’s rights without compensation by

prohibiting Plaintiff from entering onto Plaintiffs own

property without Plaintiff’s consent.” (Rogers Cty

Case, Petition, Oct. 3, 2014 at ¶ 12).1 App.2a-3a, fn. 2;

App.23a, fn. 4.

The parties engaged in discovery wherein Rogne

uncovered exculpatory evidence against the City by

way of sworn deposition testimony by the City’s civil

engineer and code enforcement officer who both testified

that the 2011 CDO contained falsified statements.

App.2a-3a, fn. 2 and App.65a.

Upon Rogne’s request, and over the objection of

the City, the state trial court entered a stay order on

December 7, 2016. staying all motions to allow Rogne

to present to the City at a second administrative

hearing his uncovering of the City’s falsified 2011

CDO. App.2a-3a, fn. 2.

The City voluntarily rescinded the 2011 CDO.

The City did not pay any compensation as a result of

1 See App.22a, fn. 2; 23a, fn. 4; John Rogne v. City of Catoosa,

No. CJ-2014-420 (Rogers Cty. Dist. Ct., Okla.) Petition, filed

October 3, 2014. The docket for the Rogers County Case is

available at https://www.oscn.net/dockets/GetCaseInformation.

aspx?db=rogers&number=CJ-2014-420 (last visited Sunday, May

10, 2026).

5

its rescission. The State trial court did not lift the stay

order; it remained in place. App.2a-3a.

After the City had rescinded its 2011 CDO and

released its occupation of Rogne’s property, it filed a

motion to dismiss the entire action, including Rogne’s

inverse condemnation claim for damages, under

Article III of the United States Constitution. App.2a-3a.

City contended that because it had vacated its

occupation and rescinded the 2011 CDO, there was

no longer a case or controversy, no justiciable claim

remained, and the case was therefore moot. Id. and

fn. 2. infra., Oral Argument. The City’s motion to

dismiss expressly cited Article III of the Constitution

and contended that Rogne’s case was not justiciable

and was moot. Id. and infra., Oral Argument, fn.2.

Rogne objected on grounds that he was still

entitled to compensation for the six years City illegally

occupied his property under First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

482 U.S. 304, 321 (1987). Id.

Despite his plea for just compensation, the State

trial court dismissed the case because Rogne had

received relief and a remedy. The State trial court did

not award compensation. App.60a-64a.

The trial court also applied a prudential rule of

failure to exhaust an administrative remedy. App.63a.

Rogne went to not one, but two administrative hearings

— the first was prior to the filing of the lawsuit in

2009 on the same set of facts, and the second was

because the trial court stayed the case to allow the

parties to proceed to exhaust an administrative

remedy. App.2a-3a, fn. 2.

6

After rehearing, the State trial court granted

judgment to city. App.25a, App.61a.

Rogne appealed to the civil appellate court.2 It

affirmed the trial court. “Rogne cannot maintain an

inverse condemnation claim under any set of facts

because he failed to exhaust his administrative remedies prior to filing the instant action.” The court inserted

a footnote stating:

The Court notes Mr. Rogne’s argument that

an administrative remedy is ineffective

because there is no administrative remedy

for compensating a landowner for money

damages for a temporary taking. We find,

however, that, as a matter of law, there was

no taking because Mr. Rogne was granted

relief as soon as he sought an administrative

remedy and the City rescinded the Cease and

Desist Order. App.58a-59a.

The Oklahoma Supreme Court denied Rogne’s request

for certiorari. App.27a.

B. Federal case and appeal

Following the conclusion of the state court case,

Rogne timely filed the present action in the United

States District Court under the Fifth and Fourteenth

Amendments, Section 1983, and by way of the Oklahoma savings statute, Title 12 O.S. § 100, which statutorily provides a party the opportunity to refile his

2 See App.32a-33a, fn. 28 Federal District Court determined that

because the Civil Appeal Court conducted a de novo review, it is

the state appellate decision that determines what was or was not

in the state court case.

7

claim if it failed other than on the merits. App.21a and

27a.

The U.S. District Court for the Northern District

of Oklahoma magistrate granted City’s motion to

dismiss Rogne’s case. App.28a. It decided that the state

appellate court decision was a decision on the merits,

finding the Oklahoma savings statute did not apply.

App.41a-42a.

On appeal and after oral arguments, the Tenth

Circuit panel affirmed. App.1a. The Tenth Circuit held,

“because Mr. Rogne ‘was granted relief [of rescission]

. . . that as a matter of law, there was no taking.’”3

The Tenth Circuit held that the Oklahoma court

“resolved Mr. Rogne’s claim on the merits.” App.20a.

REASONS FOR GRANTING THE PETITION

I.

The Question Presented is Important

Was the invocation of a prudential rule of

exhaustion (procedural ripeness) and voluntary rescission (Article III mootness), that barred a Constitutional

right to just compensation under the Takings Clause,

a decision on the merits of the substantive claim? Does

a decision solely on these two doctrines preclude

Rogne’s right to reassert his claim for compensation

in federal court under the Oklahoma savings statute

3 The United States Court of Appeals for the Tenth Circuit –

Oral Argument Recording: Case No. 25-5039, Rogne v. City of

Catoosa, Argued: Wednesday, January 21, 2026, https://www.ca10.

uscourts.gov/sites/ca10/files/oralarguments/25-5039.mp3

8

that expressly provides that a party may refile his

claim if he failed other than on the merits? If neither

doctrine can nullify a claim for just compensation,

then, can either doctrine, as applied, be a basis for a

decision on the merits?

This Court has explained that “if [a party] goes to

state court and loses, his claim will be barred in

federal court.” Knick, 588 U.S. at 185. What if the

party goes to state court and loses other than on the

merits? Will his claim be barred? What if the party

goes to state court and he loses solely on grounds of a

rule of procedure (ripeness) and lack of jurisdiction

(mootness)? Is he barred from refiling under the

Oklahoma savings statute in federal court?

Is a judge-made prudential rule of failure to

exhaust, a rule of procedure? Is a decision based on a

procedural rule a decision on the merits of a substantive Takings Clause claim?

The state appellate court held:

Rogne cannot maintain an inverse condemnation claim under any set of facts because he

failed to exhaust his administrative remedies

prior to filing the instant action.

The court inserted a footnote stating:

The Court notes Mr. Rogne’s argument that an

administrative remedy is ineffective because

there is no administrative remedy for compensating a landowner for money damages for a

temporary taking. We find, however, that, as

a matter of law, there was no taking because

Mr. Rogne was granted relief as soon as he

9

sought an administrative remedy and the

City rescinded the Cease and Desist Order.

The Tenth Circuit held the state court judgment was

a decision on the merits.

The state court judgment was decided on two

grounds — exhaustion (procedure) and rescission

(jurisdiction), not on the substantive claim.

In Oklahoma, the phrase “on the merits” is

understood as referring to the substance of the claim

different from procedural, or jurisdictional, grounds.

Gottsch v. Ireland, 1961 OK 4, ¶¶ 16-18, 358 P.2d 1097,

1100-01. The Tenth Circuit defines the word “merits”

as the real or substantial grounds of an action as

distinguished from matters of procedure. Providential

Dev. Co. v. United States Steel Co., 236 F.2d 277, 280

(10th Cir.1956) citing Clegg v. United States, 112 F.2d

886 (10th Cir. 1940). The scope and analysis of a decision

must in all cases be measured by the ground of demurrer or motion on which the judgment is based. Swift v.

McPherson, 232 U.S. 51 (1914). The decree, not being

on the merits, could not be a bar to such subsequent

suit in a state or United States court. Id. at 57.

It matters not if the state court decision was right

or wrong, or if the federal court agreed or disagreed

with the conclusion of the state court decision. The

question presented to the Tenth Circuit was whether

the state appellate court decision that there was no

taking because City rescinded the cease and desist

order and ended its physical possession of Rogne’s

property after six years was a decision on the merits

of the substantive Takings Clause claim.

This Court has held voluntary cessation by government cannot nullify a Takings Clause claim for compen-

10

sation. First English, 482 U.S. at 321 (no subsequent

action whether voluntary repeal or a hearing and rescission can relieve it of a duty to provide compensation).

The merits question as to what constitutes an

inverse condemnation Takings Clause claim in this

Court and under Oklahoma Supreme Court precedent

is: (i) was there a physical occupation resulting in a

per se taking; (ii) was there substantial interference

with a property right of use; and, (iii) was there

compensation paid? Rogne maintains that these are

the substantive questions on a Takings Clause claim

based on the original text of the Takings Clause and

this Court’s precedent.

The Tenth Circuit did not answer these three merits

questions as to the state appellate court decision. It

failed to determine whether the state appellate court

addressed the underlying substantive claim under the

Takings Clause. There was no decision in state court

as to whether there was a physical occupation (even

though there was a physical occupation); and, no decision as to whether government’s act substantially

interfered with a private right of use and enjoyment

(even though City served Rogne with a cease and desist

order prohibiting him from using his property). There

was no decision as to payment of just compensation;

and no decision as whether the administrative process

provided just compensation.

The state appellate court decision was based solely

on procedural and jurisdictional grounds. “Mr. Rogne

was granted relief as soon as he sought an administrative remedy and the City rescinded the Cease and

Desist Order.”

11

Rogne maintains that neither of these two grounds

answer the substantive merits question of a taking

without just compensation; and, neither can these two

grounds support a decision on the merits. Thus,

Rogne’s prior state court case failed other than on the

merits.

Rogne was deprived of just compensation for the

six years City occupied his property. The Tenth Circuit

undermined and disregarded this Court’s Takings

Clause precedents by abdicating its authority to allow

a justiciable claim to proceed in federal court when the

prior state court decision was based solely on the

ripeness and mootness doctrines — not the substantive

claim for just compensation. Rogne maintains that a

judgment on an impermissible bar to a claim for

Constitutional compensation is not a judgment on the

merits.

This Court has explained, “we have never tolerated

that outcome.” United States v. Pewee Coal Co., Inc.,

341 U.S. 114, 116-117 (1951). Property owners may

sue for compensation without first exhausting other

remedies. Knick, 588 U.S. at 185. No subsequent posttaking action by the government can relieve it of the

duty to provide compensation; government cannot

nullify or moot a property owner’s Fifth Amendment

right to compensation by rescission of its action.

Knick, 588 U.S. at 192; First English, 482 U.S. at 321

(no subsequent action of voluntary repeal or rescission

can relieve government of a duty to provide compensation).

When government physically takes control, dominion, or possession of private property, the Takings Clause

obligates the government to provide the owner with

just compensation from the day government physically

12

took possession or appropriated the property. TahoeSierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302, 321. The government

must pay for what it takes. Id., at 322. The mere fact

of a physical invasion, no matter how small, triggers a

mandatory duty on government to pay just compensation. Id.

This Court has never tolerated a rule under which

“the government can appropriate private property

without paying just compensation so long as it avoids

formal condemnation.” Cedar Point Nursery v. Hassid,

594 U.S. 139, 156 (2021). In Jacobs v. United States,

290 U.S. 13, 16 (1933), this Court “made clear that, no

matter what sort of procedures the government puts

in place to remedy a taking, a property owner has a

Fifth Amendment right to compensation as soon as

the government takes his property without paying for

it.” “The same reasoning applies to takings by the

States.” Knick, 588 U.S. at 191.

This Court has recognized that the government

can commit a physical taking either by appropriating

property through a condemnation proceeding or by

simply “enter[ing] into physical possession of property

without authority of a court order.” United States v.

Dow, 357 U.S. 17, 21 (1958).

Temporary physical invasions constitute takings

even if they are temporary or intermittent. Cedar

Point Nursery, 594 U.S. at 2071 (citations omitted);

see also, First English, 482 U.S. at 331. Just compensation is due even for temporary physical invasions —

whether that be six days or six years.

13

The duration of the appropriation bears only on

the amount of compensation due. See United States v.

Dow, 357 U.S. at 26.

Rogne went to not one, but two, administrative

hearings, one of which was prior to filing his suit, and

the other was after the court stayed the case to

proceed to a second administrative hearing. He sued

in state trial and appellate courts, and then again in

federal trial and appellate courts. From 2009 to the

present, Rogne has been asserting his right to just

compensation.

He was not paid compensation; there was no

decision as to whether there was a physical per se

taking; there was no decision as to whether there was

substantial interference with property rights; and no

decision as to whether the administrative process

complied with this Court’s required mechanism to pay

compensation.

The dispositive issue for the state appellate court

was the invocation of a prudential and procedural

rule of exhaustion and a mootness doctrine of City’s

rescission of its illegal conduct, that effectively barred

Rogne’s Takings Clause claim.

The text of the Fifth Amendment Takings Clause

expressly states: “nor shall private property be taken

for public use, without just compensation.” U.S. Const.

amend. V.

The text of the Takings Clause does not require

exhaustion, this Court has not held exhaustion is

required, and there is no express term of voluntary

cessation by the government so as to nullify a claim.

The text stands by itself and must be construed as

written.

14

A conclusion that a landowner is barred from

compensation because he failed to exhaust an administrative remedy, or that government does not have to

pay compensation, has no basis in the plain text of the

Takings Clause. There is no textual requirement for

exhaustion prior to payment of compensation. And

there are no textual remedies for rescission — only

just compensation.

Rogne is not asking this Court to overrule a state

court decision, or a state court’s application of a

prudential rule of failure to exhaust. Rogne simply

contends that the state court decision was a decision

other than on the merits of a Takings Clause claim for

just compensation.

Rogne appeals and prays to this Court to follow

the Constitution and grant him the opportunity to

receive just compensation. A reversal would allow Rogne

to reassert his claim to be paid for just compensation

for the six years City physically occupied his property.

The Tenth Circuit should be reversed.

II. Certiorari Should be Granted to Resolve

Whether a Prudential Rule of Exhaustion

(Ripeness Doctrine) and Rescission (Mootness Doctrine) Can Bar a Judiciable Claim

for Just Compensation

A. Prudential Exhaustion is Not a Bar

Prudential exhaustion is a judge-made doctrine

that permits a state court to abdicate their authority

to hear a claim for guaranteed constitutional rights. See

generally, Edmonds, Prudence or Abdication? Prudential Ripeness and the Federal Forum Guarantee, 2025

UNIV. OF ILL. LAW REVIEW ONLINE, 132.

15

When state courts invoke prudential rules to

withhold judgment on justiciable constitutional claims,

they abdicate and impermissibly deprive rather than

adjudicate. Id. Prudential ripeness is a discretionary

barrier that exceeds constitutional limits. Id. at 145.

“Judge-made prudential doctrines have authorized

courts to refrain from hearing cases even when all

Article III requirements are satisfied . . . ” Id. at 137.

“These concerns are particularly acute when courts

apply prudential consideration to dismiss claims

under 42 U.S.C. § 1983 . . . . ” Id. That statute was

Congress’ deliberate response to the post Civil War

reality that state institutions — especially courts —

had systematically failed to protect federal [Constitutional] rights.” Id. “When modern courts defer or

dismiss § 1983 claims under the guise of prudential

ripeness, they risk reestablishing the very state supremacy that § 1983 was designed to overcome.” Id.

“During debates over what became the Civil Rights

Act of 1871, lawmakers expressed deep alarm over

the inability — or refusal — of state institutions [and

courts] to provide redress.” Id. 137-138. See also,

Lynch v. Household Fin. Corp., 405 U.S. 538, 543

(1972) (Congress “intended to provide a federal

judicial forum for the redress of wrongful deprivations

of property by persons acting under color of state law.”);

Mitchum v. Foster, 407 U.S. 225, 242 (1972) (“The very

purpose of [42 U.S.C.] § 1983 was to interpose the

federal courts between the States and the people, as

guardians of the people’s federal rights . . . . ”).

Rogne maintains that the application of a prudential rule of failure to exhaust is a procedural ripeness

rule and is not a required element to prove or disprove

the merits of a Fifth Amendment claim. Arbuckle

16

Abstract Co. v. Scott, 975 P.2d 879, 886 (Okla. 1998).

A judgment invoking a prudential rule of procedure is

not a judgment on the merits, regardless of what a

court calls it — judgment, summary judgment, or

dismissal — and at least in Oklahoma, a claim for

inverse condemnation is not subject to summary

disposition. Williams v. State ex rel. Dep’t of Transp.,

2000 OK Civ App 19, 998 P.2d 1245, 1252. The

petition itself creates a question of fact for the finder

of fact, unless the government confesses. Id.

The Oklahoma Supreme Court explained, “there is

no administrative remedy for compensating a landowner

for a governmental taking.” Mattoon v. City of Norman,

617 P.2d 1347, 1350, 1980 OK 137 (Okla. 1980).

This Court rejected a prudential rule of ripeness

in Knick, 588 U.S. at 204. Applying Knick, there should

be no requirement that a private property owner first

submit his Takings Clause claim to an administrative

hearing, especially when the only remedy is not just

compensation but rescission.

The same analysis applies here. There is only one

remedy that is dispositive of a Takings Clause claim

on the merits and that is monetary compensation

conveyed by the government to the private property

owner. An administrative remedy of rescission does

not meet the merits question. The Tenth Circuit should

have determined that if state courts invoke a prudential

rule of exhaustion to deny compensation, it is not a

bar to refiling a judiciable claim in federal court.

The threat to the Constitutional prohibitions

against government overreach continues in this present case, when local government, including the

judiciary, ignore and trample the fundamental rights

17

guaranteed by the United States Constitution. Government does not have the authority or power to take

private property without paying just compensation.

There are no prudential or procedural rules that

can circumvent this fundamental right.

A prudential rule, as applied here, unconstitutionally grants discretion to courts where no discretion

exists. The prudential rule of exhaustion can, at the

whim of a court, be applied in one case arbitrarily and

not another. The text of the Takings Clause does not

support such arbitrary discretion.

Yet, this is exactly what the Tenth Circuit was

tasked with — deciding whether the invocation by state

courts of a prudential rule of exhaustion (ripeness) to

terminate a claim for just compensation by a state

court was a decision on the merits.

The Tenth Circuit panel failed in its analysis.

B. Rescission or Mootness Does Not Nullify

a Fifth Amendment Takings Claim

Rescission or voluntary cessation does not nullify

or moot a Takings Clause claim. Compensation is the

remedy, not rescission of the illegal order. Knick, 588

U.S. at 206 (J. Thomas concurring). “A violation of this

Clause occurs as soon as the government takes property

without paying for it.” Id. A defendant cannot moot a

case simply by ending its own unlawful conduct.

Friends of Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 528 U.S. 167, 174 (2000).

No subsequent post-taking action by the government can relieve it of the duty to provide compensation; government cannot nullify or moot a property

owner’s Fifth Amendment right to compensation by

18

rescission of its action. Knick, 588 U.S. at 206; Friends

of Earth, 528 U.S. at 174; First English, 482 U.S. at 321

(no subsequent action whether voluntary repeal or a

rescission can relieve it of a duty to provide compensation).

There must be at least a mechanism to pay compensation. Even the dissent in Knick conceded the

government could only take as long as it provided a

reliable mechanism to pay just compensation. Id. at

208 (Kagan, dissenting). This case presents a clear

question that underscores this point.

Mootness is not a decision on the merits. Mootness is jurisdictional. North Carolina v. Rice, 404 U.S.

244, 246 (1971); St. Paul Fire & Marine Ins. Co. v.

Barry, 438 U.S. 531, 537 (1978). Lack of jurisdiction is

not a case decided on its merits. Once moot, there is

no jurisdiction to make any other opinions. Church of

Scientology of Ca. v. United States, 506 U.S. 9, 12 (1992)

(no jurisdiction to give opinions on other questions).

A federal court is not precluded from considering

a litigant’s Constitutional rights “where the state

court willfully refuses to apply the correct and controlling constitutional standards.” Gamble v. State of

Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978). In

Gamble, the Tenth Circuit explained that it was

manifestly evident that the Oklahoma state courts did

not recognize or apply the controlling Supreme Court

constitutional standards. Id.

The City’s conduct was unconstitutional from the

day it first served Rogne with a cease and desist order

and then constructed a barrier fence on his private

property to the day it rescinded its acts.

19

The City’s rescission does not nullify a judiciable

claim for compensation for the six years City took

possession. And because City’s voluntary cessation

cannot nullify Rogne’s claim, it is not a decision on the

merits. Rescission is not the remedy — compensation

is. Article III mootness is not a decision on the merits

of a Takings Clause remedy.

III. THIS IS NOT A SAN REMO PRECLUSION TRAP

The state courts in the San Remo Hotel v. City and

County of San Francisco, 364 F.3d 1088, 1093 (9th

Cir. 2004) case actually determined and answered the

merits question. It analyzed the City of San Francisco’s

ordinance in relationship to the actual use of, and

application to, the private property. It held the regulatory ordinance fee and requirement bore a reasonable relationship in both the intended use and the

amount of perceived problems stemming from a change

in the hotel’s use to a tourist hotel. San Remo Hotel, 364

F.3d at 1093. This was after the City of San Francisco

denied a permit that was requested by the hotel owners.

Thus, unlike San Remo where the state courts

actually made a final determination as to the merits

question, the Oklahoma courts simply relied on the

City’s rescission of its cease and desist and failure to

exhaust prior to filing the lawsuit — mootness and

ripeness doctrines — neither of which are decisions on

the merits of the underlying substantive question.

The San Remo preclusion trap is not present.

20

IV. Oklahoma Savings Statute Tolls Statute of

Limitations of a Section 1983 Case

Whether a federal Constitutional claim or Section

1983 claim is tolled is a matter of state law. Board of

Regents v. Tomanio, 446 U.S. 478, 478-79 (1980).

Rogne’s Constitutional claim was tolled by way of

Oklahoma’s own savings clause. Title 12 O.S. § 100.

This statute tolls a Section 1983 claim. Williams v.

City of Guthrie, 109 Fed. App’x. 283, 286 (10th Cir.

2004)(applied Oklahoma savings statute to a Section

1983 action).

Neither the Fifth Amendment nor Section 1983

contain a limitations period. Thus, federal courts and

the Tenth Circuit look to the state limitations statutes,

including the Oklahoma Savings Statute, that grants

an additional one year period after a final decision

other than on the merits. Oklahoma Stat. Title 12 O.S.

§ 100. Abbitt v. Franklin, 731 F.2d 661, 663 (10th Cir.

1984)(en banc)(courts adopt state statute of limitations

and the savings provisions)

Okla. Stat. Title 12 § 100 provides:

. . . if the plaintiff fail in such action otherwise than upon the merits, the plaintiff . . .

may commence a new action within one (1)

year after the . . . failure although the time

limit for commencing the action shall have

expired before the new action is filed.

The Oklahoma Savings Statute does not distinguish

or even mention the words judgment or dismissal. It

matters not if it was a judgment, summary judgment,

or dismissal. What matters textually is that the statute

states: “if the plaintiff fail in such action otherwise

than upon the merits.” Id.

21

Rogne refiled his claim for just compensation

under the Oklahoma savings statute, Title 12 O.S.

§ 100. Even though he failed in the prior action, he is

entitled to refile his claim because the state decision

was not on the merits of an inverse condemnation

claim.

The Oklahoma Supreme Court held where a trial

court order is appealed, the one year period under

Section 100 commences on the day after the appeal is

final. Cole v. Josey, 457 P.3d 1007, ¶ 4, 2019 OK 39

(Okla. 2019).

In Cole, citing the Tenth Circuit in Twashakarris,

Inc., v. Immigration and Naturalization Serv., 890 F.2d

236 (10th Cir. 1989), the Oklahoma Supreme Court

explained:

We found the majority of other decisions

with similar savings statutes overwhelmingly agree the time of commencement of the

savings provision is the date the “judgment”

is decided on appeal, not the date of determination by the trial court. Cole, 457 P.3d at

¶ 13.

Rogne complied with the express language of this statute

and refiled his takings claim within the tolled period

— from the final appeal mandate within the one year

period.

When government physically condemns private

property by constructing a barrier fence and occupying private property, government must pay compensation — and it accrues the day government constructed

the fence.

22

The accrual of a constitutional takings claim

without just compensation accrues at the time of the

taking. Knick, 588 U.S. at 206-7. In Oklahoma, the

accrual commences when the injury occurred. Calvert

v. Swinford, 2016 OK 100, ¶ 11, 382 P.3d 1028, 1033

(Okla. 2016). The accrual of Rogne’s just compensation

injury was the day when City served him with a cease

and desist order and later when the City physically

came on his property and placed an orange barrier

fence, hung by six-foot rebar, and placed a sign — “No

Dumping Allowed”.

Rogne is entitled to refile his claim because the

state decision was not on the merits of an inverse

condemnation claim.

V.

Oklahoma Considers its Takings Clause as

Coexistent with the Fifth Amendment’s

Takings Clause

The Tenth Circuit was tasked with deciding

whether Rogne’s claim failed other than on the merits.

And it matters not that this case was first filed in

Oklahoma state court. The Takings Clause claim is

the same. Oklahoma’s Constitution Art. 2, § 24 and

the Fifth Amendment Takings Clause are the same

claim and coexistent. App.31a-32a, 41a, fn. 32.

The Oklahoma Constitution provides, in part,

“private property shall not be taken or damaged for

public use without just compensation.” Article II,

Section 24, Okla. Const.

There is no difference between the protections

under the Fifth Amendment and the Oklahoma Takings

Clause, Art. 2, § 24. Brannon v. City of Tulsa, 932 P.2d

44, 46 (Okla. Civ. App. 1996)(no difference between

23

the protections afforded Oklahoma citizens under

either provision); ConocoPhillips Co. v. Henry, 520

F.Supp 2d 1282, 1317 n.44 (N.D. Okla. 2007), rev’d on

other grounds, 555 F.3d 1199 (10th Cir. 2009).

The Oklahoma Supreme Court explained:

The “test” of whether there can be recovery in

inverse condemnation is whether there is a

sufficient interference with the landowner’s

use and enjoyment to constitute a taking.

Mattoon, 617 P.2d at 1349 (emphasis added).

As for a per se or de facto taking, the Mattoon

court continued: “If there is an overt act by the

governmental agency resulting in an assertion of

dominion and control over property, there can be an

actual or de facto ‘taking’”. Id. (emphasis added).

The Tenth Circuit did not answer whether the

state courts made a determination of a per se or de

facto taking based on the overt act by the City of

constructing a barrier fence on Rogne’s property. The

Tenth Circuit did not answer whether the state court

determined if there was substantial interference with

the landowner’s use and enjoyment.

The Mattoon court also explained “there is no

administrative remedy for compensating a landowner

for a governmental taking.” Id. at 1350. A landowner

may proceed, as an option, to administratively appeal

for a denial of a building permit or may seek a variance.

However, an administrative remedy is not compensation and failure to exhaust such remedies does

not address the merits of an inverse condemnation

taking. Id.

24

The issue of substantial interference is the critical

issue. Carter v. City of Oklahoma City, 862 P.2d 77,

81, 1993 OK 134 (Okla. 1993). “Further, in an inverse

condemnation case . . . [t]he issue must go before a

jury . . . . ” Id.

. . . in an action for inverse condemnation

the issue of taking is critical and is a fact

question which, unless confessed, must be

tried to a jury . . .

Id.

In Henthorn v. Oklahoma City, 1969 OK 76, 453

P.2d 1013 (Okla. 1969) the Oklahoma Supreme Court

required trial courts to determine “whether there was

an interference with the use and enjoyment of the

property due to the noise the jets made in landing and

taking off for Will Rogers Airport and the amount of

damages suffered.”

. . . there is a legal right to the use and

enjoyment of one’s property free from unreasonable interference. The ultimate question

is whether there is a sufficient interference

with the landowner’s use and enjoyment to

constitute a taking by a sovereign . . .

Henthorn, 453 P.2d at 1015-16.

To determine whether or not the state case was

terminated on its merits under Oklahoma inverse

condemnation precedent, the test is whether there was

an overt act by the government resulting in dominion

or control over property or whether there was a

determination of substantial interference with the use

and enjoyment of private property. Oklahoma Takings

25

Clause law is consistent with this Court’s Takings

Clause precedent.

The prior state appellate court held that Rogne

failed to timely exhaust his administrative remedy,

and when he did the remedy was government rescission

of its cease and desist order and cessation of its physical

possession of his property. There was no compensation paid.

Rogne maintains the application of a prudential

rule of exhaustion where the only relief is rescission

of government conduct, is not a decision on the merits

of a Takings Clause claim. Government’s physical possession, control and dominion of his private property

demands just compensation from the day government

first entered his property until it vacated.

The Tenth Circuit committed reversible error.

26

CONCLUSION

This Court should grant the Petition for Certiorari.

Respectfully submitted,

/s/ Will K. Wright, Jr.

Will K. Wright, Jr.

Counsel of Record

WRIGHT LAW, PLC

P.O. BOX 982

Claremore, OK 74018

(918) 691-0447

wkw@wkwlex.com

Counsel for Petitioner

May 18, 2026