Amicus Curiae Brief — John R. Sand & Gravel Co. v. United States (No. 06-1164)

®

No. 06-1164

In The

Supreme Court of the United States

JOHN R. SAND & GRAVEL COMPANY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to

The United States Court Of Appeals for the Federal Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONER

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Christopher M. Whitcomb

National Association of

Home Builders

1201 15” Street, N.W.

Washington, D.C. 20005

(202) 866-8200

TABLE OF CONTENTS

Page(s)

INTEREST OF THE AMICUS CURIAE .........0000-000-0--

SUMMARY OF ARGUMENT. .....0........::cccscecesesseesseee 2

nanan 4

IN RESOLVING THE STATUTE OF

LIMITATIONS QUESTION, THE COURT

MUST CONSIDER ITS RIPENESS DOCTRINE

Pe CIN GD cs icccrstncnstcsnsstscscncescoseninsee 4

A. Relationship Between Statute of Limitations

i ticariccibininninticansdctpildntinitnediciabinienins 4

B. Ripeness Principles for Takings Claims............ 6

C. Petitioner’s Physical Takings Claim did not

Ripen Until it Sought Compensation

ee Ee CN I a hacebntieninivsincusncsocnnsencsssenncis 9

THE COURT SHOULD DISPENSE WITH

WILLIAMSON'S COMPENSATION

PROC EEIUREES BLEMIENNE ......00csesccsceocsssvscosesses 1]

A. Different Rule for Federal vs. State Takings... 13

B. Discord on Simultaneous vs. Subsequent

Takings Claims ................. ssiencidipteinigatiipinisineiniie 14

C. Anomaly with Removal Jurisdiction ............... 1S

D. Federal Court Blockade on Takings Claims.... 16

TABLE OF CONTENTS (continued)

Page(s)

Il]. WILLIAMSON WILL CONTINUE TO GENERATE

UNFAIR AND ARBITRARY RESULTS

UNLESS THIS COURT INTERVENES .............. 18

+. ReaD devincabincntrnnsiinmibitinsibinnibaibtuasbianisintubestitin 22

TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner, 387 U.S. 136 (1976)............. 4

Agins v. City of Tiburon, 447 U.S. 255 (1980)............ 22

Agripost, Inc. v. Miami-Dade County,

195 F.3d 1225 (11th Cir. 1999),

cert. denied, 531 U.S. 815 (2000) ........................00- 12

Atl. States Legal Found. v. EPA, 325 F.3d 281

SL IIE TET sinikcnssiiecithinsiiatipsiicegiablinichdishaidictaiennticenncspnetes 5

Anderson v. Green, 513 U.S. 557 (1995)... cceeeees 4

Asociacion de Subscripcion Conjunto del Seguro de

Responsabilidad Obligatorio v. Galarza,

a a BOD wvcrstictiietintcinnninccinininiiseceseten 7

Bateman v. City of W. Bountiful, 89 F.3d 704

I aan es 12

Bay Area Laundry and Dry Cleaning Pension Trust

Fund v. Ferbar Corp., 522 U.S. 192 (1997) .......... 5,6

Blanchette v. Conn. Gen. Life Ins. Corps.,

a eT a aaitisiacitehaisintheninnitinbiniehacemienintsnies 4

Buckley v. Valeo, 424 U.S. 1 (1976) .0....000...0.c0cccccceeeee 4

Cheffer v. Reno, 5S F.3d 1517 (11th Cir. 1995)............ 5

iv

TABLE OF AUTHORITIES (continued)

City of Chicago v. Int'l Coll. of Surgeons,

SES ES. TI COI F P sere entanineinitnamnsicensivtsnstnininaieis

City of Monterey v. Del Monte Dunes

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

City of New Pulask' Co. v. Mayor and

City Council of Baltimore,

217 F.3d 840 (4th Cir, 2000)...........:ccccccesersreseeseerees

County Concrete Corp. v. Town of Roxbury,

OBZ F DG TTP COG GA. Be ccseccsecesesicrescstosssesscseese

Deniz v. Mun. of Guaynabo, 285 F.3d 142

Ca Sk ee ilictinicnnicnseccninicenisiiadiiieinieasiarenini

DLX, Inc. v. Kentucky,

381 F.3d STL (6th Cir. 2004)... ccseccerseseeseecssrees

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

First English Evangelical Lutheran Church

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

Friends of Marolt Park v. U.S. Dep't of Transp.,

382 F.3d 1088 (10th Cir. 2004)... ceeeeeeteeneees

Forseth v. Vill. of Sussex, 199 F.3d 363

i ie REO Se an

Greenfield Mills, Inc. v. Macklin, 361 F.3d 934

CE EE: SIO cecacecescomencessmmmininnitativemniiibaininetateinitiin

Page(s)

Vv

TABLE OF AUTHORITIES (continued)

Page(s)

Hacienda Valley Mobile Home Estates v.

City of Morgan Hill, 353 F.3d 651 (9th Cir. 2003).. 10

Henry v. Jefferson County Planning Comm'n,

34 Fed. Appx. 92 (4th Cir, 2002) .........cccccccceseeeeeees 12

John R. Sand & Gravel Co. v. United States,

457 F.3d 1345 (Fed. Cir. 2006) ..........cceseseseeeseeeeees 10

Johnson v. Sikes, 730 F.2d 644 (11th Cir. 1984) .......... 5

Kelo v. City of New London, 545 U.S. 469 (2005)...... 19

Koscielski v. City of Minneapolis, 435 F.3d 898

(Bth Cit, 2006) ...........sercssersrssceseesssrerseecsecsnsscensensesees 16

Kottschade v. City of Rochester, 319 F.3d 1038

(8th Cir.), cert. denied, 540 U.S. 825 (2003)..... 12, 15

Levin v. City of Sheffield Lake, 637 N.E.2d 319

Eee 19

Lingle v. Chevron U.S.A., Inc.,

EE 22

Luperini v. County of DuPage, 637 N.E.2d 1264

EL eR 21

McKenzie v. City of White Hall, 112 F.3d 313

i ae aller aa ttndnnsentenns 7,8

vi

TABLE OF AUTHORITIES (continued)

Page(s)

McNamara v. City of Rittman,

473 F.3d 633 (6th Cir. 2007), cert. pet. filed

May 9, 2007 (No. 06-1481)...........ccccccceeeeeeeee 18-20

MiPro Homes, L.L.C. v. Mt. Laurel Twp.,

910 A.2d 617 (NJ. 2006), cert. pet. filed

FE, Sy er ye eat rtncichtenitiecietcrnnsincsinsiiatiias 20

Monsanto v. Ruckleshaus, 467 U.S. 986 (1984) ........... 9

Nat'l Park Hospitality Ass'n v. Dep't of Interior,

ee 4,5

Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351

Reh Ute cinastceenptnaisisenisihsinieietmintesianinceapubinioaieiabidiai 5

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)..........8

Preseault v. 1L.C.C., 494 U.S. 1 (1989) ooo. eee 9

Pascoag Reservoir & Dam LLC v. Rhode Island,

fs AL RR a 8

People ex rel. Pratt v. Rosenfeld,

EE 21

Peters v. Fair, 427 F.3d 1035 (6th Cir. 2005)............. 12

Reiter v. Cooper, 507 U.S. 258 (1993)...............ccceeee 6

Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993)......... 4

Vii

TABLE OF AUTHORITIES (continued)

Page(s)

Rockstead v. City of Crystal Lake, 486 F.3d 963

(7th Cir. 2007), cert. pet. filed June 25, 2007

a sia Dacia cite hihi taaensinenieal 7, 20 - 22

Samaad v. City of Dallas, 940 F.2d 925

SPE SUITE aasiiiiniehiclielbnriniitiaaiisiamiitcilatensianin solstice 12

San Remo Hotel, L.P. v. City and County of

San Francisco, 545 U.S. 323 (2005).............. 3, 13, 14

Sandy Creek Investors, Lid. v. City of Jonestown,

AR 8 Eee 16

Sinaloa Lake Owners Ass'n v. City of Simi Valley,

864 F.2d 1475 (Sth Cir. 1989).............cccecscoseccssoseee 7,8

Sinclair Oil Corp. v. County of Santa Barbara,

96 F.3d 401 (9th Cir. 1996),

cert. denied, 523 U.S. 1059 (1998) .0..........cccccceeeeees 12

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84

(2d Cir. 1992), cert. denied, 507 U.S. 987 (1993) ... 12

Suburban Trails, Inc. v. N.J. Transit Corp.,

a ee Ce ee Be eciceecscceseescremneccensescesecascnes 5

Suitum v. Tahoe Reg’! Planning Agency,

I lide 4,6

Tahoe-Sierra Pres. Council v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002).............:00000. 18

viii

TABLE OF AUTHORITIES (continued)

Page(s)

Toca Producers v. F.E.R.C.,

SOE FB Bie GG Cae. FD ccventccnccnsscscesessesesossnenes 5

Utah v. U.S. Dep't of Interior, 210 F.3d 1193

Se, Be iaceiicnitticapndccinttntictninnaninpncrneinphinitegetiii 5

Williamson County Reg'l Planning Comm'n

v. Hamilton Bank, 473 U.S. 172 (1985)........... passim

Wilkinson v. Pitkin County Bd. of Comm'rs,

142 F.3d 1319 (10th Cir, 1998) 0. eee ceceeeereees 17

Statutes and Bills

Re Oe Scie cectetecreninitintisinricemensmnaniinin: 12

ee Oe ener enentnenenneccsteninnerteanniimnnaeiee 15

ee PE seshececinssscertesiienianidterninheinciaipinnsiioniienalinis 9,12

pe NINE ciciptennseiiirreninietiammtctiteiatinietamniiasiingi 2, 6, 11

Private Property Rights Implementation Act of |997,

H.R. 1534, 105th Cong., Ist Sess. (1997) ................ 23

Private Property Rights Implementation Act of 2000,

H.R. 2372, 106th Cong., 2d Sess. (2000)................. 23

Private Property Rights Implementation Act of 2006,

H.R. 4772, 109th Cong., 2d Sess. (2006)................. 24

ix

TABLE OF AUTHORITIES (continued)

Page(s)

Other

Michael Berger, Anarchy Reigns Supreme,

29 Wash. U. J. Urb. & Contemp. L. 39 (1985)........ 1]

Michael Berger and Gideon Kanner, Shell Game!

You Can't Get There From Here: Supreme Court

Ripeness Jurisprudence in Takings Cases at Long

Last Reaches the Self-Parody Stage, 36 Urb. Law.

I iaichnditnstnien tlic suddiiniatbiiiianaaiatabieridtessibdedians 23

J. David Breemer, You Can Check Out But You Can Never

Leave: The Story of San Remo Hotel —The Supreme

Court Relegates Federal Takings Claims to State

Courts, 33 B.C. Envtl. Aff. L. Rev. 247 (2006)....... 16

John J. Delaney and Duane J. Desiderio, Who Will

Clean Up the “Ripeness Mess”? A Call for Reform

so Takings Plaintiffs Can Enter the

Federal Courthouse, 31 Urb. Law. 203 (1999).........17

Scott Keller, Judicial Jurisdiction Stripping Masquerading

as Ripeness: Eliminating Williamson County

State Litigation Requirements for Regulatory

Takings Claims, 85 Tex. L. Rev. 199 (2006)........... 16

Madeline J. Meacham, The Williamson Trap,

Be ee, HP iniitntincentnioniecminanseseniess 15, 16

TABLE OF AUTHORITIES (continued)

Page(s)

Thomas E. Roberts, Ripeness and Forum Selection in

Fifth Amendment Takings Litigation,

11 J. Land Use & Envtl. L. 37 (1995)... eee 14

Testimony of Prof. Daniel Mandelker on H.R. 1534,

Before H. Comm. on the Judiciary, Subcomm. on

Courts and Intellectual Property, reprinted in

Pe ee eG See i iikcictntcscicinepinenictnemnaieinecnny 16

INTEREST OF THE AMICUS CURIAE

The National Association of Home Builders (“NAHB”)

has received the parties’ written consent to file this amicus

curiae brief supporting Petitioner.'! NAHB represents over

235,000 builder and associate members throughout the

United States, including individuals and firms that construct

and supply single-family homes, as well as apartment,

condominium, multi-family, commercial and industrial

builders, land developers and remodelers. It is the voice of

the American shelter industry. It is, and historically has

been, vitally concerned with judicial decisions regarding

government regulation and taking of private property.

NAHB appeared before the Court as a petitioner in a

case decided earlier this term concerning the Clean Water

and Endangered Species Acts, NAHB v. Defenders of

Wildlife, 551 U.S. ___, 127 S.Ct. 2518 (2007). It has also

participated as amicus curiae or “of counsel” in a number

of cases involving landowners aggrieved by over-zealous

regulation under a wide array of statutes and regulatory

programs.”

' Letters of consent are on file with the Clerk. Pursuant to Rule

37.6 of this Court, NAHB states that its counsel authored this

brief. The brief was not written in whole or part by counsel for a

party, and no one other than amicus made a monctary

contribution to its preparation.

? These include Agins v. City of Tiburon, 447 U.S. 255 (1980);

San Diego Gas and Elec. Co. v. City of San Diego, 450 U.S. 621

(1981); Williamson County Reg'l Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985); MacDonald, Sommer & Frates v.

Yolo County, 477 U.S. 340 (1986); First English Evangelical

Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987);

Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987); Pennell v.

In particular, NAHB has frequently asked this Court

to clarify procedural and jurisdictional issues so Fifth

Amendment takings claims can be resolved on their merits.

Too often, ripeness principles and statutes of limitations are

misapplied to operate as an unfair bar, denying land owners

full and fair court access on constitutional takings claims.

NAHB thus offers its experience in this field and a national!

perspective to support the Petitioner.

SUMMARY OF ARGUMENT

Amicus agrees with Petitioner that the six-year

limitations provision in the Tucker Act, 28 U.S.C. § 2501,

is not a prerequisite for subject matter jurisdiction in the

Court of Federal Claims. The court of appeals should thus

City of San Jose, 485 U.S. 1 (1988); Yee v. City of Escondido,

503 U.S. 519 (1992); Lucas v. S.C. Coastal Council, 505 U.S.

1003 (1992); Dolan v. City of Tigard, 512 U.S. 374 (1994);

Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Ore.,

515 U.S. 687 (1995); Suitum v. Tahoe Reg'l Planning Agency,

520 U.S. 725 (1997); City of Monterey v. Del Monte Dunes at

Monterey, Lid., 526 U.S. 687 (1999); Solid Waste Agency of N.

Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159

(2001); Palazzolo v. Rhode Island, 533 U.S. 606 (2001);

Franconia Assocs. v. United States, 536 U.S. 129 (2002); Tahoe-

Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535

U.S. 302 (2002); Borden Ranch P'ship v. U.S. Army Corps of

Eng 'rs, 537 U.S. 99 (2002); City of Cuyahoga Falls v. Buckeye

Cmty. Hope Found., 538 U.S. 188 (2003); S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004); San

Remo Hotel, L.P. v. City and County of San Francisco, 545 US.

323 (2005); Lingle v. Chevron U.S.A., Inc., £@ U.S. 528 (2005);

Kelo v. City of New London, 545 U.S. 469 (2005); S.D. Warren

Co: v. Me. Bd. of Envtl. Prot., 126 S.Ct. 1843 (2006); and

Rapanos v. United States, i126 S.Ct. 2208 (2006).

be reversed in holding that the statute of limitations

question could be raised sua sponte.

Even more fundamentally, amicus urges that under this

Court’s takings precedent, particularly Williamson County

Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172

(1985), Petitioner’s physical takings claim against EPA was

never ripe until compensation was sought under the Tucker

Act. Hence, the statute of limitations could not have run

prior to the time the physical takings claim became ripe.

As ripeness is unquestionably jurisdictional, this point can

be considered sua sponte.

Amicus recognizes the tautology to maintain that

Petitioner’s takings claim did not ripen until Petitioner filed

Suit to compensate for EPA’s taking. But that odd result is

required under the current state of the case law. The

ripeness requirement articulated by Williamson — that a

Fifth Amendment takings claim does not ripen unti! the

aggrieved property owner pursues an_ available

compensation remedy — has generated multiple

inconsistencies within this Court’s own Fifth Amendment

jurisprudence. Four concurring Justices in San Remo Hotel,

L.P. v. City and County of San Francisco, 545 U.S. 323

(2005), stated that Williamson “may have been mistaken,”

and that “[ijt is not clear that Williamson County was

correct in demanding” that a claimant must first seek a

compensation remedy through litigation as a prerequisite to

ripen a Fifth Amendment takings claim. /d at 340

(Rehnquist, C.J., concurring). Respectfully, NAHB

encourages this Court to reconsider the compensation

element of Williamson’s ripeness doctrine — and

prospectively dispense with it.

ARGUMENT

I. IN RESOLVING THE STATUTE OF

LIMITATIONS QUESTION, THE COURT MUST

CONSIDER ITS RIPENESS DOCTRINE FOR

TAKINGS CLAIMS.

Amicus agrees with Petitioner that 28 U.S.C. § 2501

does not impose jurisdictional requirements. However, if

the court of appeals is affirmed and the limitations question

may be raised sua sponte, then the Court should consider

the effect of its ripeness doctrine on the timeliness of

Petitioner’s takings claim.

A. Relationship Between Statute of Limitations and

Ripeness.

“(R]ipeness is peculiarly a question of timing.”

Anderson v. Green, $13 U.S. 557, 559 (1995). See also

Buckley v. Valeo, 424 U.S. 1, 113-114 (1976); Blanchette v.

Conn. Gen. Life Ins. Corps., 419 U.S. 102, 139 (1974).

“Ripeness is a justiciability doctrine designed ‘to prevent

the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements ....’ ”

Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S.

803, 807-08 (2003) (quoting Abbott Labs. v. Gardner, 387

U.S. 136, 148-149 (1967)). While the undecided question

in this case is whether 28 U.S.C. § 2501 goes to subject

matter jurisdiction, it is well established that ripeness

doctrine is “drawn from both -Article III limitations on

judicial power and from prudential reasons for refusing to

exercise jurisdiction.” Nat'l Park Hospitality Ass’n, 538

U.S. at 807. See also Suitum v. Tahoe Reg'l Planning

Agency, 520 U.S. 725, 732 n. 7 (1997); Reno v. Catholic

Soc. Servs., 509 U.S. 43, 57 n. 18 (1993). The ripeness

doctrine has been described as “arising from problems of

prematurity and abstractness that may present

insurmountable obstacles to the exercise of the court’s

jurisdiction, even though jurisdiction is _ technically

present.” Johnson v. Sikes, 730 F.2d 644, 648 (11" Cir.

1984).

Because ripeness is jurisdictional, it can be raised at any

point in the litigation. “[E]ven in a case raising only

prudential concerns, the question of ripeness may be

considered on a court's own motion.” Natl Park

Hospitality Ass'n, 538 U.S. at 807. The circuit courts thus

uniformly hold that ripeness questions can be addressed sua

sponte.’ In short, the Court at its own volition is free to

consider the ripeness of Petitioner’s physical takings claim.

Moreover, “[t]he standard rule [is] that the limitation

period commences when the plaintiff has ‘a complete and

present’ cause of action ... [A] cause of action does not

become ‘complete and present’ until the plaintiff can file

suit and obtain relief.” Bay Area Laundry and Dry

Cleaning Pensior: Trust Fund v. Ferbar Corp., 522 US.

192, 201 (1997) (citations omitted). Unless legislative text

clearly indicates otherwise, it is generally not the case that

“a statute of limitations could commence to run on one day

while the right to sue ripened on a later date.” 7RW Inc. v.

> See, e.g., Toca Producers v. FE.R.C., 411 F.3d 262, 265-266

n.* (D.C. Cir. 2005); Friends of Marolt Park v. U.S. Dep't of

Transp., 382 F.3d 1088, 1093 (10" Cir. 2004); Ad. States Legal

Found. v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003); Utah v. U.S.

Dep't of Interior, 210 F.3d 1193, 1196 n.1 (10" Cir. 2000);

Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1361 (6"

Cir. 1995); Cheffer v. Reno, 55 F.3d 1517, 1523-24 (11 Cir.

1995); Suburban Trails, Inc. v. N.J. Transit Corp., 800 F.2d 361,

365 (3d Cir. 1986).

Andrews, 534 U.S. 19, 34 n. 6 (2001) (interpreting Bay

Area Laundry). See also Reiter v. Cooper, 507 U.S. 258,

267 (1993) (“While it is theoretically possible for a statute

to create a cause of action that accrues at one time for

purposes of calculating when the statute of limitations

begins to run, but at another time for the purpose of

bringing suit, we will not infer such an odd result in the

absence of any such indication in the statute’’).

There is nothing in the Tucker Act — and certainly no

language in the Fifth Amendment — to support a

conclusion that the six-year period in 28 U.S.C. § 2501 ran

out prior to the ripening point of Petitioner’s physical

takings claim against the United States. However, as

explained below, the court of appeals has effectively

decided just that: the limitations provision at issue expired

before Petitioner could even sue the United States for a

physical invasion. In light of this “todd result,” there is

ample justification for the Court to consider the ripeness

question sua sponte.

B. Ripeness Principles for Takings Claims.

“There are two independent prudential hurdles” to ripen

a regulatory takings claim. Suitum, 520 U.S. at 733-34.

These were established in Williamson County Reg'l

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).

First, takings claims are not ripe “until the administrative

agency hds arrived at a final, definitive position regarding

how it will apply the regulations at issue to the particular

_ land in question.” 473 U.S. at 191. This “finality

requirement is concerned with whether the _ initial

decisionmaker has arrived at a definitive position on the

issue that inflicts an actual, concrete injury ....” /d. at 193.

This Court has never considered whether finality is

necessary to ripen a physical takings claim of the sort

Petitioner brings. However, all of the courts of appeals

reaching the issue have concluded that a separate finality

inquiry is not necessary when the taking occurs by physical

invasion.

Second, Williamson held that a takings claim “is not yet

ripe” if the property owner failed to seck an award of just

compensation through available procedures. /d. at 194.

The Court divined this “compensation procedures” element

of ripeness because “[t]he Fifth Amendment does not

proscribe the taking of property; it proscribes taking

without just compensation.” Jbid. “[(B]ecause the Fifth

Amendment proscribes takings without just compensation,

no constitutional violation occurs until just compensation

has been denied.” /d. at 184 n. 13 (original emphasis). As

Judge Posner recently wrote, “the Constitution is not

violated until the government refuses to compensate the

owner.” Rockstead v. City of Crystal Lake, 486 F. 3d. 963,

965 (7" Cir. 2007), cert. pet. filed June 25, 2007 (No. 06-

1716). Unlike rulings with regard to finality (supra n. 4),

circuits addressing the issue have decided that Williamson’s

* See Asociacién de Subscripcién Conjunto del Seguro de

Responsabilidad Obligatorio v. Galarza, 484 F.3d 1, 15 (1* Cir.

2007) (“[T}he finality prong of Williamson County is

inapplicable to physical takings”); Greenfield Mills, Inc. v.

Macklin, 361 F.3d 934, 958 (7" Cir. 2004) (“[A] physical

invasion constitutes a ‘final decision’ and thus satisfies

Williamson County’s first requirement”); McKenzie v. City of

White Hall, 112 F.3d 313, 316 (8" Cir. 1997) (“A physical

taking is by definition a final decision for the purpose of

satisfying Williamson’s first requirement”); Sinaloa Lake

Owners Ass'n v. City of Simi Valley, 864 F.2d 1475, 1478 (9"

Cir. 1989) (“Williamson County's final decision requirement is

inapplicable in cases of physical invasion”’).

compensation procedures element is indeed a necessary

prerequisite to ripen a physical takings claim.°

This Court has recognized that a regulatory takings

challenge “does not mature until ripeness requirements

have been satisfied, under principles we have discussed;

until this point an inverse condemnation" claim alleging a

regulatory taking cannot be maintained.” Palazzolo v.

Rhode Island, 533 U.S. 606, 628 (2001). The same must

hold true for physical takings. Under Williamson and the

current governing case law, a Fifth Amendment claim

based on government invasion cannot mature, and thus the

applicable limitations period cannot expire, until the

affected property owner has satisfied the compensation

procedures element.

* Greenfield Mills, supra n. 4, 361 F.3d at 958 (physical takings

claim “is subject only to Williamson’s exhaustion

requirement.”); Pascoag Reservoir & Dam LLC v. Rhode Island,

337 F.3d 87, 91-92 (1* Cir. 2003) (“the state action requirement

remains in physical taking cases: ‘[C]ompensation must first be

sought from the state if adequate procedures are available’.”);

McKenzie, supra n. 4, 112 F.3d at 317 (“As for the second

Williamson requirement, the plaintiff must seek compensation

from the state before proceeding to federal court if adequate state

procedures are available, even in a physical taking case.”);

Sinaloa Lake Owners Ass'n, supra n. 4, 864 F.2d at 1479 (“Even

in physical taking cases, compensation must first be sought from

the state if adequate procedures are available.”).

6

Inverse condemnation occurs when the “government

[defendant] takes the land at issue without initiating

condemnation proceedings,” such as by regulation or

unconsented physical occupation. City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 712 (1999).

C. Petitioner’s Physical Takings Claim did not

Ripen Until it Sought Compensation Under the

Tucker Act.

The following passage from Williamson is particularly

relevant:

[W]e have held that taking claims against the Federal

Government are premature until the property owner

has availed itself of the process provided by the

Tucker Act, 28 U.S.C. § 1491.

Williamson, 473 U.S. at 194 (citing, inter alia, Monsanto v.

Ruckleshaus, 467 U.S. 986, 1016-1020 [1984]).’ See also

Preseault v. L.C.C., 494 U.S. 1, 16-17 (1989) (failure to use

Tucker Act remedy rendered premature a takings claim

against an Interstate Commerce Commission order

converting abandoned rail lines to recreational trail use).

Williamson thus contemplated the precise scenario

presented in the case at bench. Here, the physical takings

claim against the United States did not ripen (thus, the

Court of Federal Claims lacked subject matter jurisdiction)

until Petitioner “availed itself of the process provided by

the Tucker Act” in that court. Under Williamson, the very

act of filing the Tucker Act suit ripened Petitioner’s claim

for just compensation against EPA.

” Monsanto held that that a takings claim was not ripe because

the applicant for a pesticide registration did not seek a Tucker

Act compensation remedy from EPA, to redress any monetary

damage that might arise under the Federal Insecticide, Fungicide,

and Rodenticide Act. 467 U.S. at 1019-20.

10

The court of appeals’ ruling that the statute of

limitations began to run in 1994, when EPA built the fence

that cut off access to Petitioners’ plant,” cannot be

reconciled with Williamson, which requires resort to federal

compensation procedures to yield jurisdictional ripeness.

Accordingly, the date of the physical appropriation — that

is, EPA’s fence construction — might be pertinent for

remedial purposes to determine the amount of

compensation that is ultimately due. But the government’s

invasion did not itself ripen the physical takings claim for

jurisdictional purposes, which only occurred later when

Petitioner invoked the Tucker Act’s compensation

procedures. See First Englisi; Evangelical Lutheran

Church of Glendale v. Los Angeles, 482 U.S. 304, 320 n. 10

(1987) (“Though, as a matter of law, an illegitimate taking

might not occur until the government refuses to pay, the

interference that effects a taking might begin much earlier,

and compensation is measured from tha. time’’).

And, of course, if the physical takings claim was not

ripe until Petitioner sought compensation through the

Tucker Act, the statute of limitations could not have

expired before then because the Court of Federal Claims

did not have jurisdiction until then. Cf. Hacienda Vailey

Mobile Home Estates v. City of Morgan Hill, 353 F.3d 651,

655 (9" Cir. 2003) (in resolving facial takings claims “the

court must perform a two-step analysis. First, it must

determine whether the claim is ripe under Williamson

County. Then the court mest determine whether the claim

*“We conclude ... that the claim accrued not later than February

of 1994 when the government constructed the fence that cut of

JRS & G’s access to its plant area. That date was more than six

years before IRS & G filed its complaint on May 20, 2002.”

John R. Sand & Gravel Co.v. United States, 457 F.3d 1345, 1356

(Fed. Cir. 2006).

ll

is barred by a statute of limitations.”); City of New Pulaski

Co. v. Mayor and City Council of Baltimore, 217 F.3d 840,

843 (4" Cir. 2000) (“[A] takings claim is not ripe and the

statute of limitations does not begin to run, unless the

property owner has exhausted any available

compensation procedures.”).

To conclude, the court of appeals erred in ruling that the

six-year limitation provision in 28 U.S.C. § 2501 ran out

against Petitioner, because this Court’s current precedent

would not render the physical takings claim ripe until

compensation was sought under the Tucker Act.

Il. THE COURT SHOULD DISPENSE WITH

WILLIAMSON’S COMPENSATION

PROCEDURES ELEMENT.

Amicus fully recognizes the reductio ad absurdum to

maintain that a property owner must bring a Tucker Act suit

as a prerequisite to ripen a Tucker Act suit.” But that is the

outcome that Williamson dictates. With respect, the

problem lies within the compensation procedures

requirement. It is inherently flawed. The Court should

reconsider this prudential element of the ripeness inquiry

and retire it, from this point forward.

The Tucker Act provides jurisdiction over cases such as

the present one, seeking monetary relief from the federal

* See Michael Berger, Anarchy Reigns Supreme, 29 Wash. U. J.

Urb. & Contemp. L. 39, 57-58 (1985) (the discussion in

Williamson, 473 U.S. at 194 (supra p. 9), that federal takings

claims are premature until the Tucker Act remedy is sought in

the Court of Federal Claims, is “bewildering” and “mystifying”).

\

12

government in excess of $10,000."° The result that

Williamson demands in this case is problematic, but

difficulties with the compensation procedures element are

far more common in takings suits against counties,

townships, and other non-federal government entities. In

such suits, virtually every court of appeals has interpreted

Williamson to mean that a Fifth Amendment takings claim

is not ripe — it does not exist — until a property owner has

filed suit for inverse condemnation in state court and has

been denied compensation. The justification behind these

cases is that the government has not denied compensation

until the property owner has litigated and lost his takings

claim in court.''

This Court’s avowed basis for the compensation

procedures element is that “no constitutional violation

'© 28 U.S.C. § 1491(a). For suits seeking monetary relief from

the federal government up to and including $10,000, the United

States district courts also possess jurisdiction. 28 U.S.C. §

1346(a)(2).

'' Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146 (1* Cir. 2002);

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 99-100 (2d

Cir. 1992), cert denied, 507 U.S. 987 (1993); County Concrete

Corp. v. Town of Roxbury, 442 F.3d 159, 168 (3d Cir. 2006);

Henry v. Jefferson County Planning Comm'n, 34 Fed. Appx. 92,

96 (4" Cir. 2002); Samaad v. City of Dallas, 940 F.2d 925, 933-

36 (5" Cir. 1991); Peters v. Fair, 427 F.3d 1035, 1038 (6" Cir.

2005); Forseth v. Vill. of Sussex, 199 F.3d 363, 368-73 (7" Cir.

2000); Kottschade v. City of Rochester, 319 F.3d 1038, 1041(8"

Cir.), cert. denied, 540 U.S. 825 (2003); Sinclair Oil Corp. v.

County of Santa Barbara, 96 F.3d 401, 405-07 (9" Cir. 1996),

cert. denied, 523 U.S. 1059 (1998); Bateman vy. City of W.

Bountiful, 39 F.3d 704, 708-09 (10" Cir. 1996); Agripost, Inc. v.

Miami-Dade County, 195 F.3d 1225, 1234 (11" Cir. 1999), cert

denied, 53! U.S. 815 (2000).

13

occurs until just compensation has been denied.”

Williamson, 473 U.S. at 184 n. 13. Surely, if Williamson is

correct in requiring litigation to pursue compensation

procedures, its application must not randomly depend on

which level of government committed the taking. How

could it be, that litigation against a state or local agency is

necessary to ripen a takings claim but litigation against a

federal agency is not required — if the declared reason for

the procedure element depends on a court’s denial of

compensation? If Williamson is good law and its ripeness

rule indeed entails exhaustion of litigation, then neither the

level of government that has taken the property nor the

court system in which suit must be pursued, should matter.

In 2005, former Chief Justice Rehnquist wrote a

concurrence joined by three other Justices, stating that

Williamson’s compensation procedures element has

“created some real anomalies, justifying our revisiting the

issue.” San Remo Hotel, L.P. v. City and County of San

Francisco, 545 U.S. 323, 342 (2005) (Rehnquist, C.J.,

concurring). This concurrence stated “our decision in

Williamson ... may have been mistaken,” because “{it] is

not clear ... that Williamson ... was correct in demanding

that ... [a takings] claimant must seek compensation in

state court before bringing a federal takings claim in federal

court.” Jd. at 340. The confusion, inconsistencies, and

“real anomalies” created by Williamson have gone on long

enough. Lower courts, property owners, and government

defendants all require clarification from this Court due to

the following problems generated by Williamson:

A. Different Rule for Federal vs. State Takings.

If the court of appeals is upheld, a special exception to

Williamson will have been created for federal government

oe

/

|

14

takings. If the Court affirms that Petitioner’s action is time-

barred under 28 U.S.C. § 2501, it would be tantamount to

ruling that takings claims against the United States are

immediately ripe upon a final federal agency decision (or,

in the case of physical takings, upon the invasion by a

federal agency). The compensation procedures element

would be rendered inapplicable in the context of federal

government takings. In contrast, takings claims against

local government will not ripen until after a state court

denies compensation. But the Takings Clause provides no

basis to vary ripeness requirements on the fortuity of

whether the government “taker” is federal or state. Supra at

13. Does this Court intend to establish different ripeness

requirements for federal, as compared to state, takings?

B. Discord on Simultaneous vs.

Subsequent Takings Claims.

Tension is pronounced between San Remo and

Williamson. San Remo held that takings plaintiffs can

“simultaneously” bring federal and state takings claims in

state court. San Remo, 545 U.S. at 338. Yet Williamson

made clear that exhaustion of state compensation

procedures is a necessary first step to ripen federal takings

claims: “until [a plaintiff] has utilized [state] procedures,

its takings claim is premature.” Williamson, 473 U.S. at

197 (emphasis supplied). Moreover, every court of appeals

interpreting Williamson (supra note 11) has decided that

that. initial exhaustion of state court compensation

procedures is a ripening prerequisite for federal takings

2

claims.’ How can San Remo and Williamson be

'2 Scholars agree. See, e.g, Steven J. Eagle, Regulatory Takings

1062 (2d ed. 2001) (“the ‘ripeness’ metaphor is one that

promises ultimate vindication.”); Thomas E. Roberts, Ripeness

and Forum Selection in Fifih Amendment Takings Litigation, \\

15

harmonized, if at all? How can a Fifth Amendment claim

be brought simultaneously with a state takings claim in

state court (San Remo), when that federal claim is not ripe

until after state litigation is exhausted and the state court

denies compensation (Williamson)?

C. Anomaly with Removal Jurisdiction.

In City of Chicago v. Int’l Coll. of Surgeons, 522 U.S.

156 (1997), the Court allowed a municipal defendant to

remove a federal takings claim from state to federal court,

because “a case containing claims that local administrative

action violates federal law ... is within the jurisdiction of

the federal district courts.” /d. at 163. Under the federal

removal statute, a case can be removed from state to federal

court only if it could have been brought in federal court

originally. 28 U.S.C. § 1441(a). But under Williamson,

federal courts do not have original jurisdiction over federal

takings claims because they are not ripe until the property

owner brings state litigation and loses. The Eighth Circuit

believes that the ironic synergy between College of

Surgeons and Williamson has created an “anomalous gap

... in Supreme Court jurisprudence.” Kottschade v. City of

Rochester, 319 F.3d 1038, 1041 (8" Cir.), cert. denied, 540

U.S. 825 (2003). Does this Court intend a ripeness doctrine

that prevents federal courts from deciding federal takings

claims if they are initially filed in that forum by a plaintiff,

but allows federal adjudication over such claims only when

municipal defendants exercise their removal option to

federal court?

J. Land Use & Envtl. L. 37, 67 (1995) (Williamson’s “language

... Suggests that the state law is merely preparatory to a federal

suit”); Madeline J. Meacham, The Williamson Trap, 32 Urb.

Law. 239, 249 (2000) (“language ... of Williamson suggests that

a federal claim will survive after disposition in the state court’).

~~ -S---SS

16

Moreover, municipal defendants have been permitted to

remove federal takings .cases from state to federal court,

and once in federal court, argue that the claims should be

dismissed for lack of a prior state ripening suit. See, e.g.,

Koscielski v. City of Minneapolis, 435 F.3d 898, 903-904

(8” Cir. 2006); Sandy Creek Investors, Lid v. City of

Jonestown, 325 F.3d 623, 626 (5" Cir. 2003). Does this

Court intend a ripeness regime that allows municipal

defendants to whipsaw takings plaintiffs by removing them

to federal court, and then bouncing them back to state

court? How could that result possibly serve interests of

judicial economy?

D. Federal Court Blockade on Takings Claims.

The interplay between Williamson’s compensation

procedures element and the preclusion doctrines of res

judicata (claim preclusion) and collateral estoppel (issue

preclusion) has been well documented, and described as a

“trap” that ensnares takings plaintiffs.'* The problem is

that once a takings claim is litigated in state court, claim or

issue preclusion will always bar adjudication of the Bill of

"The scholarship on this topic is legion. See, e.g. J. David

Breemer, You Can Check Out But You Can Never Leave: The

Story of San Remo Hotel, The Supreme Court Relegates Federal

Takings Claims to State Courts, 33 B.C. Envtl. Aff. L. Rev. 247

(2006); Scott Keller, Judicial Jurisdiction Stripping

Masquerading as Ripeness: Eliminating the Williamson County

State Litigation Requirements for Regulatory Takings Claims, 85

Tex. L. Rev. 199 (2006); Madeline J. Meacham, The Williamson

Trap, 32 Urb. Law. 239 (2000); Test. of Prof. Daniel Mandelker

on H.R. 1534, Before the H. Comm. on the Judiciary, Subcomm.

on Courts and Intellectual Property, reprinted in 31 Urb. Law.

371 (1999).

17

Rights provision protecting property rights in federal court.

A case survey has confirmed that the merits of Fifth

Amendment claims are largely undecided by federal judges.

See John J. Delaney and Duane J. Desiderio, Who Will

Clean Up the “Ripeness Mess"? A Call for Reform so

Takings Plaintiffs Can Enter the Federal Courthouse, 31

Urb. Law. 203-205 (1999) (surveying all land-use takings

cases with a federal court decision from 1990-1998). The

Sixth Circuit appreciates the severity of the problem:

“(The}] interaction of Williamson County’s ripeness

requirements and the doctrine of claim preclusion could

possibly operate to keep every regulatory takings claimant

out of federal court.” DLX, Inc. v. Kentucky, 381 F.3d 511,

521 (6" Cir. 2004).

As the Tenth Circuit has observed, “[{i]t is difficult to

reconcile the [compensation procedures] ripeness

requirement of Williamson” with issue and claim

preclusion. Wilkinson v. Pitkin County Bd. of Comm'rs,

142 F.3d 1319, 1325 n. 4 (10" Cir. 1998). Accordingly, the

only opportunities for federal court interpretations of the

Takings Clause occur when either: (1) the United States is

sued, and the matter goes to the Court of Federal Claims; or

(2) this Court grants certiorari to review a decision from a

state court of last resort. Does this Court intend to relegate

the Fifth Amendment to the “status of a poor relation”

(Dolan v. City of Tigard, 512 U.S. 374, 392 [{1994]), by

effectively barring the lower federal courts from

adjudicating the merits of claims arising under the Takings

Clause?

Ill. WILLIAMSON WILL CONTINUE TO

GENERATE UNFAIR AND ARBITRARY

‘ RESULTS UNLESS THIS COURT

INTERVENES.

“Considerations of fairness and justice” are at the

heart of the Takings Clause. Tahoe-Sierra Pres. Council v.

Tahoe Reg’! Planning Agency, 535 U.S. 302, 333 (2002).

The plain truth is that Williamson’s compensation

procedures element typically achieves results that are

neither fair nor just, but arbitrary and irrational.

Two petitions for certiorari pending before this Court

provide egregious illustrations of the “damned if you do,

damned if you don’t” dilemma confronting property owners

as a result of Williamson. The first is McNamara v. City of

Rittman, 473 F.3d 633, 637-40 (6" Cir. 2007), cert. pet.

filed May 9, 2007 (No. 06-1481). In January 1994, the

plaintiffs filed a state court action seeking damages for

“unreasonable dewatering,” a claim recognized by Ohio

law, from water shortages caused by the city’s well-drilling

activity. In 1998, the Ohio intermediate appellate court

affirmed dismissal of the dewatering claim on sovereign

immunity grounds; in 1999, the Ohio Supreme Court

dismissed plaintiffs’ appeal as improvidently granted. 473

F.3d at 635. Plaintiffs could not assert state law takings

theories in the state dewatering action, simply because the

Sixth Circuit determined they were not available under

Ohio law at the time the state suit was filed.'*

4 “Ohio does not have an inverse condemnation or other direct,

statutory cause of action for plaintiffs seeking just compensation

for a taking.” McNamara, 473 F.3d at 638. While Ohio does

not allow a direct compensation remedy for a takings plaintiff

through inverse condemnation, roughly six-months affer the

McNamara plaintiffs filed their state dewatering complaint, the

19

Subsequently, after exhausting the potential dewatering

remedy in state court and not receiving a damages award

there, in 2000 plaintiffs filed a federal court complaint for a

Fifth Amendment taking. ‘The Sixth Circuit refused to

review the merits, dismissing the federal takings claim

through a bizarre assemblage of statute of limitations and

Williamson ripeness theories. The court decided that the

applicable two-year statute of limitations under Ohio law

rendered plaintiffs’ 2000 federal takings case too late to

redress “past violations” by the city. It ruled that the

federal action was time-barred because the takings claim

became “ripe for review in 1994” when the Ohio Supreme

Court first recognized a mandamus action (supra n. 14) —

after the state dewatcring suit was filed. McNamara, 473

F.3d at 639. Then, with regard to Fifth Amendment takings

arising from “continuing violations” of the city’s on-going

dewatering, the Sixth Circuit found the federal action foo

early because it was not preceded by an Ohio mandamus

suit purportedly required by Williamson.'° Id. at 639-40.

Ohio Supreme Court first announced the availability of a

“*mandamus action to force appropriation proceedings’ ”—- that

is, a suit whereby a landowner can force government into

eminent domain proceedings to affirmatively condemn the

property at issue. /bid. (citing Levin v. City of Sheffield Lake,

637 N.E.2d 319, 323-34 (Ohio 1994).

'> Surely there are constitutional problems with a state law

doctrine that does not simply require the land owner to seek just

compensation from government, but forces the land owner into

eminent domain proceedings to compel government to actually

take title to the property at issue. The Court is aware that

eminent domain cases create their own storm of controversy.

See, e.g., Kelo v. City of New London, 545 U.S. 469 (2005);

20

The court paid lip service to the Catch-22 situation it

created for the plaintiffs, but nonetheless avoided federal

adjudication on the Bill of Rights claim. It blamed

Williamson for the result:

It may seem a bit perverse that one takings claim (past

violations) be barred by statute of limitations because it

was delinquentiy filed in federal court, and yet a similar

claim (continuing violations) be barred by mpeness

because it was prematurely filed in federal court. But.

this is the nature of the federal-state interplay after

Williamson, a dance made more awkward when actions,

as here, both pre- and post-date the Ohio Supreme

Court’s decision [creating a mandamus remedy].

McNamara, 473 F.3d .at 640. Thus, the takings plaintiffs

were shut out of federal court.

Another petition, where hapless property owners find

themselves trapped by Williamson, is pending in Rockstead

v. City of Crystal Lake, 486 F.3d 963 (7" Cir. 2007)

(Posner, J.), cert. pet. filed June 25, 2007 (No. 06-1716).

Here, the takings claimants own a parcel adjacent to

stormwater detention ponds and wastewater treatment

facilities owned by the city. The city’s management of

these features caused flooding on plaintiffs’ property,

thereby converting “productive farmland into valueless

wetlands.” Jd. at 965. Since 1948, Illinois case law has

held that an inverse condemnation suit will nof lie for

damages from “intermittent flooding,” and the plaintiffs

thus lost their case at the state trial level. /bid (citing

MiPro Homes, L.L.C. v. Mt. Laurel Twp., 910 A.2d 617 (NJ.

2006), cert. pet. filed Apr. 6, 2007 (No. 06-1345).

21

People ex rel. Pratt v. Rosenfeld, 77 N.E.2d 697, 699-700

(Ill. 1948)).

The Rocksteads did not pursue further appea!s in the

Illinois courts because they saw “no point in continuing in

state court because the outcome is foreordained by state

law.” Ibid. So, they filed a Fifth Amendment takings suit

in federal court. But the Seventh Circuit deemed the suit

unripe under Williamson. Judge Posner decided that further

pursuit of state appeals could still provide a light at the end

of the tunnel because judges “can—and do—change

common law doctrines.” /d. at 966. The Seventh Circuit

saw a “glimmering of recognition” provided by a single

1994 state intermediate appellate decision that Illinois law

could, after al! of these years, change course to recognize

an inverse condemnation claim due to intermittent flooding.

Id. at 967 (citing Luperini v. County of DuPage, 637

N.E.2d 1264 (lll. App. 1994)). Judge Posner thus

concluded that the Rocksteads’ federal takings claim was

properly dismissed by the district court because they did

not pursue state litigation to its ultimate appellate

conclusion, as Williamson purportedly mandates.

Rockstead, 486 F.3d at 965-66.

The Rockstead decision dcmonstrates just how

extremely unfair Williamson works in practice. At least in

the Seventh Circuit, takings plaintiffs are now expected to

predict whether future state court opinions might possibly

reverse earlier, long-standing precedent. And they need to

be lucky, so that the stars align for a grant of certiorari

from a state supreme court under its own procedural rules

to accept review. For, if a takings plaintiff does not pursue

litigation and appeals at all levels of the state system, they

will never have the merits of their Fifth Amendment claim

decided by any court. As Judge Posner stated, if “the

22

property owner goes through the entire state proceeding,

and he loses, he cannot maintain a federal suit” due to res

judicata and the doctrine against claim splitting. /d. at 968.

In other words, [t]he litigation in state court is the end of

the road” for property owners bringing Fifth Amendment

claims. /d.

If this is what the Court thinks Williamson means — that

federal courts are barred from deciding the merits of cases

arising under the Takings Clause, unless the suit is against

the United States — then it needs to announce that radical

notion once and for all, in clear and unmistakable terms.

When particular takings principles prove over time that

they make little sense, this Court has not hesitated to clarify

the law even by overruling earlier cases. In Lingle v.

Chevron, 544 U.S. 528, 531 (2005), the Court recognized

that “[o]n occasion, a would-be doctrinal rule or test finds

its way into our case law through simple repetition of a

phrase — however fortuitously coined.” Lingle went on to

hold that the “substantially advances a_ legitimate

government interest” test first announced in Agins v. City of

Tiburon (1980), was no longer “an appropriate test for

determining whether a_ regulation effects a _ Fifth

Amendment taking.” Lingle, 544 U.S. at. 532. Williamson

should be subject to the same kind of thorough

examination. The compensation procedures element of the

ripeness doctrine requires serious attention and

reconsideration by this Court.

CONCLUSION

It is a droll understatement to say that Williamson's

compensation procedures element is “confusing” and

23

“controversial.” Rarely has a legal doctrine been the object

of so much enthusiastic invective:

[T]he Supreme Court’s decision in (and lower court

applications of) Williamson County were described by

courts and commentators as “odd,” “unpleasant,”

“unfortunate,” “ironic,” “ill-considered,” “unclear and

inexact,” “surprising,” “bewildering,” “worse than mere

chaos,” “dramatic,” “misleading,” “deceptive,” an

“anomaly,” “paradoxical,” “most confusing,” a “source

of intense confusion,” “inherently nonsensical,”

“shocking,” “absurd,” “unjust,” “self-stultifying,”

“pernicious,” “revolutionary,” “nonsense,” “draconian,”

“riddled with obfuscation and _ inconsistency,”

“containing an Alice in Wonderland quality,” and

thereby creating “a procedural morass,” a “labyrinth,”

“conflict of decision,” a “result [that] makes no sense,”

“doctrinal confusion,” “havoc,” “a “mess,” “a “trap,” a

“quagmire,” a “Kafkaesque maze,” a “fraud or hoax on

landowners,” a “weapon of mass obstruction,” and “a

Catch-22 for takings plaintiffs.”

Michael Berger and Gideon Kanner, Shell Game! You

Can't Get There From Here: Supreme Court Ripeness

Jurisprudence In Takings Cuses ut Lung Lust Reaches the

Self-Parody Stage, 36 Urb. Law. 671, 702-03 (Fall 2004)

(citations omitted). On three occasions, the House of

Representatives passed bill language to dispense with the

compensation procedures element for takings claim

ripeness. '°

'® See H.R. 1534, The Private Property Rights Implementation

Act of 1997, 105" Cong., 1" Sess. (1997) (passed by 248-178

vote on Oct. 22, 1997); H.R. 2372, Private Property Rights

Implementation Act of 2000, 106th Cong., 2d. Sess. (2000)

24

Williamson is a like a virus. It mutates and infects a

variety of dormant issues, such as statute of limitations

provisions (and, likewise, principles of res judicata,

collateral estoppel, concurrent jurisdiction, and removal

jurisdiction, to name some others). Great clarity will be

afforded to all of takings law if only this Court would heed

Chief Justice Rehnquist’s San Remo concurrence, and

reconsider the propriety and validity of the compensation

procedures element for jurisdictional ripeness.

For the foregoing reasons, the court of appeals should

be reversed. And, Williamson’s compensation procedures

requirement should be excised from this Court’s body of

Fifth Amendment jurisprudence.

August 3, 2007

Respectfully Submitted,

Duane J. Desiderio

(Counsel of Record)

Thomas J. Ward

Christopher M. Whitcomb

National Association of Home Builders

Attorneys for Amicus Curiae

(passed by 226-182 vote on March 16, 2000); H.R. 4772, Private

Property Rights Implementation Act of 2006, 109th Cong., 2d

Sess. (2006) (passed by 231-181 vote on Sept. 29, 2006).