Petition for Writ of Certiorari — Pascoag Reservoir & Dam, LLC v. Rhode Island

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“= 08 897 ocr 17 2003

In The

Supreme Court of the Gnited States

PASCOAG RESERVOIR & DAM, LLC,

Petitioner,

VS.

THE STATE OF RHODE ISLAND, acting by and

through JAN REITSMA, in his capacity as Director of the

RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT, and PATRICK LYNCH, in his capacity

as Attorney General for the State of Rhode Island,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

PETITION FOR WRIT OF CERTIORARI

BARRY J. KUSINITZ, ESQ.

Attorney of Record for Petitioner

155 South Main Street, Suite 405

Providence, RI 02903

(401) 831-4200

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, in a physical taking, a landowner could have

reasonably known, to a justifiable certainty, that its

federal claim for compensation against a State had ac-

crued and ripened prior to the resolution of contentious

state court litigation as to whether the State had acquired

an interest in the landowner’s property?

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

The parties are identified in the caption of this case.

Petitioner Pascoag Reservoir & Dam, LLC is a nongov-

ernmental party. ~ ‘2 a limited liability company organ-

ized under Rhode island state law, rather than a

corporation. It does not have any parent corporations or

companies. There are no publicly held companies that own

interest of 10% or more of Pascoag. As a limited liability

company rather than a corporation, Pascoag has members

rather than shareholders, and therefore the term “inter-

est” refers to membership interests rather than stock

interests.

iii

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING AND RULE 29.6

I Ales isiseovcccsaiissdsivarorecticacicasss.cec,..... ii

TABLE OF CONTENTS ..00......cccceccssssssessseee coc. ili

TABLE OF AUTHORITIES... eecccccccssceeccooss Vv

OPINIONS BELOW ....00....oceccsccseeesssssesseeecosseeccc. 1

BASIS OF JURISDICTION ...00....seececcsccccssseeccoss 1

CONSTITUTIONAL PROVISIONS INVOLVED ..... 1

STATEMENT OF THE CASE..0....eeeccscccccceccosscs., 1

WHY THE WRIT OF CERTIORARI SHOULD

I Cassstvnnenrvrinnsnsnscsonsnssrsersokesssysssvecorestess,..,..,.. 11

I. The State of Rhode Island’s Acquisition of

Pascoag’s Property by Prescription is a Tak-

ing Requiring Just Compensation................. 11

II. Pascoag’s Federal Taking Action Accrued

When the Rhode Island Supreme court De-

cided the Underlying Litigation.................. 13

A. In a Physical Taking, the Landowner’s

Federal Cause of Action for an Uncom-

pensated Taking Accrues When the

Status of the Property Has Stabilized

Sufficiently that the Landowner Knew or

Should Have Known that it Had a Tak-

BE er renrshinsessveanivsstoasvseserinacccss.. 14

TABLE OF CONTENTS - Continued

Page

B. Before the Landowner’s Federal Claim

for Just Compensation Accrues and Rip-

ens, Underlying State Court Litigation

as to the Existence and Scope of the

Property Interest Taken Must be Finally

Resolved ............... Pibiaxiniiinanitaineieiatilen . 20

C. Pascoag’s Taking Claim Did Not Accrue

Until the State Supreme Court Decided

that the State Had Acquired an Interest

in Pascoag’s Property, Thereby Stabiliz-

ing the Status of the Property................. 24

III. The First Circuit Failed to Recognize that

the Futility of Seeking a State Law Remedy

Entitled Pascoag to Pursue a Federal Taking

ET tkissnenthirasanessmnneesaennieeanuniaanie ise 26

IT wincacuisiscnnsasiamnbiiininhanthckinanieddesinibenmnnes 28

APPENDIX

Pascoag Reservoir & Dam, LLC v. Rhode Island,

re ae Oe Ce Ga Be iisttnticinestaprasomaiceniiens App. 1

Pascoag Reservoir & Dam, LLC v. Reitsma, 217

F.Supp.2d 206 (D.R.I. 2002)........... ce eeeetereees App. 17

Reitsma v. Pascoag Reservoir & Dam, LLC uv.

Reitsma, 774 A.2d 826 (R.I. 2001) .................. App. 61

Complaint in Pascoag Reservoir & Dam, LLC uv.

Reitsma (United States District Court for the

District of Rhode Isiand)....................ccceeceee ones App. 101

TABLE OF AUTHORITIES

Page

CASES

Federal

Applegate v. United States, 25 F.3d 1579 (Fed. Cir. _

Se ED issriccipinvseicnsnsihicinaniitianilaiaiaaaneacapabamaians 17, 18

Banks v. United States, 314 F.3d 1304 (Fed. Cir.

PD icenistisinenbiasiinnionainieanadeaanaaanmmind. 18, 19

Boling v. U.S., 220 F.3d 1365 (Fed. Cir. 2000)......17, 18, 19

Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525 (2001)............... 27

Chicago, B. & O. R.R. Co. v. City of Chicago, 166

ee Big 8 FRG | Se 11

Cooper v. U.S., 825 F.2d 762 (Fed. Cir. 1987)..............0006 16

Corn v. City of Lauderdale Lakes, 904 F.2d 585

CRED: BI vsisichacisnsticnsccnctinnicttenintainnnsensiiiinatl 21, 22, 23

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 107 S.Ct.

PT CREP sicstiahisicvesiniiiisetaiialhniainiatenaiiiaiiciaulnaolmdniamete 13

John R. Sand and Gravel Co. v. U.S., 57 Fed.Cl.

EE GR tvevtiksiaipaealadineemenieimamiameeniaiaas 19, 20

Kaiser Aetna v. United States, 444 U.S. 164, 100

Ss SE TIP OU sscshicvensescasnenscianannisemencintagalane tical 13

Katz v. Stannard Beach Ass’n, 95 F.Supp.2d 90 -

(D.Conn. 2000) ........... TRON SP LTS NE Poe vere 23

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 102 S.Ct. 3164 (298)................ccccccsssceeee 12

Mehta v. Surles, 720 F.Supp. 324 (S.D.N.Y. 1989),

affd in part, vacated in part on other grs. 905

Fa I GE Ge HE vncnsnistnciinintesacibaniaciclaaseeaell 23, 24

TABLE OF AUTHORITIES -— Continued

Page

New Port Largo, Inc. v. Monroe County, 985 F.2d

TERE CTI Sy Be citicicteennemeniionmintan 22, 23

Nollan v. California Coastal Comm., 483 U.S. 821,

BOF BA Gee Ue Patttnatutcininaane 12, 20

Norco Const., Inc. v. King County, 801 F.2d 1143

SIGE GAs SATINEE ceinicsctnvancesesewssllssciensumesanmaaumanseenaaonaiins 21

Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct.

Ue a estsistanistnieinnsssicicicicienienninaaaaaa 12, 13, 20

United States v. Dickinson, 331 U.S. 745, 67 S.Ct.

Re CT Pisicciusacksnentbbiinidaianeannnaalds 14, 15, 16, 19, 20

United States v. Dow, 357 U.S. 36, 78 S.Ct. 1039

Citic intinkesitceiacaiann ssuenuensnsnensuneescannauneesevennsasscenns 13

Williamson Co. Regional Planning Comm. uv.

Hamilton Bank, 473 U.S. 170, 105 S.Ct. 3108

(BEI ixcxsscvinwinapdncesnnasiseninbciaieicesinantelinnniatiiaeaemanaind 21

State

Anthony v. Searle, 681 A.2d 892 (R.I. 1996)............... ee 5

Aud-War Realty Co., Inc. v. Ellis, 557 A.2d 69 (R.I.

REE scsnivschcersneiacineeastnaeenmunanaanaaiemladannaaiaanina 6

In Re D’EUena, 640 A.2d 530 (R.I. 1994)... eeeeeeeeeeeees 2

Dodge v. Lavin, 34 R.I. 514, 84 A. 857 (1912)... —

Friends of the Sakonnet v. Dutra, 749 F.Supp. 381

CERT ctv MIG TO LD vecninssuciieniticcnciscniiniateadenieaiadiacbliedellaidaeiaianaliialinaddiie 3

Gammons v. Caswell, 447 A.2d 361 (R.I. 1982) ......0.-.s00000 5 |

LaFreniere v. Sprague, 108 R.I. 43, 271 A.2d 819 ;

CE ee iicxsis:s xwsncenishicscansncsieansentinaphaiaseaneatadiietaaiaiasdaiaadidaaaiaiomaaninan 5

Lee v. Raymond, 456 A.2d 1179 (R.I. 1983).......... eee 5 |

iil eae

Vii

TABLE OF AUTHORITIES -— Continued

Page

Paquin v. Guiorguiev, 117 R.I. 239, 366 A.2d 169

Ure vcnsensvussisanaiianiiniciaineisaieaininsiteiinieeieiadaaaiaiadaialiaesiaabih o

Taffinder v. Thomas, 119 R.I. 545, 381 A.2d 519

8, | en CEN nT LO OE ET ION eT 5

UNITED STATES CONSTITUTION

eh I CU ic oi ca nettelinenaenenenehilaiai 1, 11, 23

eR rr 1, 11, 23

STATUTES AND OTHER AUTHORITIES

Federal

Be le OF iia csstncsincensienabsctatinaponssanianeiaeapsdiioneneinbienia 1

Be Eas OF Wein sccinsciinsnnneinienciasicusbintinaccinnmnintinaninannmans 1

State

Se i Be Oe re i hcsdsnciceetcntunenbncinninetcanintinatinaniciial 2

Ce, EN TEA. © te Ok 0 OOO. heciincenentntitnerenensivtennicntiinnts 2

rr >

PO A OO INTER.

OPINIONS BELOW

1. Pascoag Reservoir & Dam, LLC v. State of Rhode

Island et al, 337 F.3d 87 (1st Cir. 2003) (App. 1-16)

2. Pascoag Reservoir & Dam, LLC v. State of Rhode

Island et al, 217 F.Supp.2d 206 (D.R.I. 2002) (App. 17-

60)

BASIS OF JURISDICTION

Jurisdiction exists pursuant to Rule 10 of_the Su-

preme Court Rules, 28 U.S.C. §2101(c), and 28 U.S.C.

§ 1254. This Petition seeks review of the opinion of the

First Circuit Court of Appeals issued on July 28, 2003,

affirming the opinion of the United States District Court

for the Federal District of Rhode Island dated August 20,

2002 which granted the motion of the Respondent State of

Rhode Island to Dismiss the Petitioner’s Complaint.

CONSTITUTIONAL PROVISIONS INVOLVED

1. U.S. CONsT. amend. V (*... nor shall private property

be taken for public use, without just compensation”).

2. U.S. CONST. amend. XIV (“... nor shall any State

deprive any person of life, liberty, or property, without

due process of law . . .”).

STATEMENT OF THE CASE

This petition involves an uncompensated physical

taking of private property by the State of Rhode Island for

eae ee EMER RSS RN Sr ene enn enne ar

ATI TREN RON NE TERA HE AE RIOR ET

public use. The property in question is the Pascoag Reser-

voir, sometimes known as Echo Lake (the “Reservoir”),

located in the Towns of Burrillville and Glocester, Rhode

Island. The Reservoir covers approximately 350 acres of

land, is two miles long and has more than ten miles of

shore line. The Reservoir was created in 1860 by various

mill owners, as a source of power, and is presently owned

by the Petitioner, the Pascoag Reservoir &* Dam, LLC

(“Pascoag”).’

A. The State’s Action in State Court Against Pas-

coag Based on Prescription

On April 22, 1998, the State of Rhode Island (“State”)

filed suit against Pascoag in the Superior Court for the

State of Rhode Island sitting in Providence County. In

that action, the State sought among other things to obtain

title to, or a recreational easement over, the Reservoir.

The State’s legal theory was that it had acquired this

interest in Pascoag’s property by prescription under Rhode

Island’s adverse possession statute, GEN. LAWS R.I. § 34-7-

1 et seq.

' The First Circuit suggested, sua sponte, that Pascoag may not

have standing to maintain this action because it did not own the

Reservoir in 1975. However, under Rhode Island law, a successor in

ownership acquires not only title to the property but also all of the

grantor’s rights, privileges and appurtenances in connection with the

deeded property. GEN. LAws R.I. § 34-11-28. These “rights, privileges

and appurtenances” include the grantor’s right to condemnation

proceeds. In Re D’Ellena, 640 A.2d 530 (R.I. 1994). Here, the Reservoir

was owned in 1975 by the Pascoag Reservoir Corporation. That entity

conveyed the Reservoir in 1990 to the Pascoag Investment Corporation,

which in turn conveyed the Reservoir to Pascoag in 1995. All three

corporate entities are controlled by the same individuals.

The events culminating in the State’s adverse posses-

sion action demonstrate that Pascoag’s claim for inverse

condemnation is both valid and timely, and further that

the First Circuit erred in denying Pascoag just compensa-

tion.

The State filed its action only after haggling unsuc-

cessfully to buy the Reservoir from its owners throughout

the time period spanning 1986 through 1997. When sale

negotiations ultimately broke down in 1997, the State

announced for the first time ever that it had acquired an

interest in the Reservoir by prescription. The State argued

that its claim was based exclusively upon its installation

of a boat ramp at the Reservoir circa 1965. However, in

utter contradiction to its newly-adopted proprietary

position, the State had abandoned an attempt to enlarge

that boat ramp as late as 1996 due to “our inability to

acquire an easement or fee title”, as set forth in an inter-

nal memorandum generated by the Rhode Island Depart-

ment of Environmental Management (“DEM”). Acting

through DEM, the State had also insisted repeatedly, as

seen in correspondence as early as July 10, 1979 and as

late as October 14, 1997, that Pascoag and its predecessors

were responsible for the repair, maintenance and upkeep

of the Reservoir because they (as opposed to the State)

owned the Reservoir.”

? Easement holders have all such rights as are incident and

appropriate to the reasonable and proper enjoyment of their ease-

ments. However, every benefit has a corresponding burden. Accord-

ingly, easement holders have an obligation to repair and maintain

their easements, as necessary. [See Friends of the Sakonnet v. Dutra,

749 F.Supp. 381 (D.R.I. 1991) for recitation of general rule] Thus, the

State rather than Pascoag would have been responsible for repair,

(Continued on following page)

On April 3, 2000, after trial, the Rhode Island Supe-

rior Court held for Pascoag:

The Court finds that no witness for the State, or

the general public, has proven by clear and con-

vincing evidence that their collective or individ-

ual use of the lake was pursued under a claim of

right or was in any way hostile, open, notorious,

or adverse to the interests of (Pascoag). The

[c]ourt also finds that in the absence of such

proof and in the face of the overwhelming credi-

ble evidence provided by the documentary evi-

dence introduced at trial by (Pascoag), that

(Pascoag) is the owner of said lake as aforesaid,

and that any use engaged in by any member of

the public of the lake, whether swimming, boat-

ing, or fishing was done at the sufferance of, and

with the permission of (Pascoag) .. .

(App. 87) On the other hand, “[t]he State’s witnesses have

established only those contacts which are incidental to the

normal and legitimate authority of the sovereign ...”

(App. 88)

The Superior Court concluded that the “State’s asser-

tion or claim of right to either adverse possession or a

prescriptive easement to the lake is of recent vintage” and

further that the State “in no respect of this case estab-

lished .. . that its claim of interest in either the lake, lake

bed, or dam, were in any way made under a claim of right,

hostile or adverse to (Pascoag) or its predecessors in the

maintenance and upkeep of the Reservoir, even assuming that it had

acquired merely an easement.

title from the construction of the boat ramp to the pre-

sent.” (App. 88)

The State appealed and secured a reversal in the

Rhode Island Supreme Court by a slim majority of three

out of five. In its opinion of June 20, 2001, the Court ruled

that the State had acquired title to the land beneath the

boat ramp’ by adverse possession in 1975 (i.e. ten years

after installation of the boat ramp), and had procured a

recreational easement over the entire Reservoir by provid-

ing public access to the Reservoir through the boat ramp.

Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826

(R.I. 2001) (App. 61-82) Simply put, the Rhode Island

Supreme Court looked no further than the installation of

the boat ramp.

In order to accomplish its reversal of the Superior

Court’s judgment, the majority changed long-standing

state law on adverse possession. Prior to its opinion, a

putative adverse possessor had to prove, among other

things, that it occupied that land of another under a “claim

- of right”, meaning a subjective conviction as to ownership,

however misguided.‘ The court re-confirmed this as re-

cently as 1996 in Anthony v. Searle, 681 A.2d 892 (R.1.

1996).° In Reitsma, however, the Rhode Island Supreme

* The boat ramp is thirty feet wide and forty-eight feet long. (App.

64)

* See Gammons v. Caswell, 447 A.2d 361 (RI. 1982); Lee v.

Raymond, 456 A.2d 1179 (R.I. 1983); Taffinder v. Thomas, 119 R.I. 545,

381 A.2d 519 (1977); Paquin v. Guiorguiev, 117 R.I. 239, 366 A.2d 169

(1976); LaFreniere v. Sprague, 108 R.I. 43, 217 A.2d 819 (1970); Dodge

v. Lavin, 34 R.I. 514, 84 A. 857 (1912).

* In Anthony, the adverse possessor “not having had a formal lot

survey performed ... undertook to personally establish the northern

(Continued on following page)

Court rejected the subjective test honored by it throughout

the course of Rhode Island jurisprudence in favor of an

objective test: “A claim of right to own or use property will

arise by implication through objective acts of ownership

that are adverse to the true owner’s rights.” (App. 68)

Thus, “the very act of placing a permanent physical

structure on another’s property” in and of itself amounted

to a claim of right. (App. 74)

The Rhode Island Supreme Court also rejected Pas-

coag’s suggestion that the State’s conduct constituted the

“first step in a land grab unrivaled within recent jurispru-

dence” and then took pains to insure that the State could

do just that. The Court acknowledged that Pascoag’s claim

for inverse condemnation had been dismissed without

prejudice prior to trial, yet the Court proceeded to note sua

sponte in dicta, “Nevertheless, even assuming, without

deciding, that (Pascoag or its predecessors) would have

possessed viable just compensation claims. ... such claims

long ago would have lapsed .. .” (App. 79-80)

boundary of his new property by what he perceived as being a ‘visible

boundary line.’” He then proceeded to cultivate the land to the south

this boundary although it would later turn out that his true northern

boundary was further south than he originally perceived. He prevailed

because his claim of right grew out of his skill or lack thereof “as a

boundary line surveyor.” See also Aud-War Realty Co., Inc. v. Ellis, 557

A.2d 69 (R.I. 1989). There, the adverse possessor built a wooden shack

one and a half feet into his neighbor’s property. He was unable to

acquire this footage by adverse possession, though, because of his

“commendable candor” to the effect that he was “totally in the dark

about the specific location of his easterly boundary” until three years

before commencement of litigation. In other words, the claimant lost

because he was not utilizing the land under a claim of right.

The minority authored a scathing dissent: “(We) do

not believe the facts in the record support such a broad

grant that amounts to a prescriptive easement for recrea-

tional use on property indisputably held in private hands

and for which the state never claimed an interest and did

so only after it was foiled in its attempt to purchase the

lake.” (App. 82-83)

It is understandable that a fact-finder would

wonder why the State of Rhode Island, the sover-

eign and the repository of all documents dealing

with state property, including the construction of

a boat ramp, could not produce a single piece of

paper referring to this project. This is particu-

larly telling when (Pascoag) has produced reams

of evidence demonstrating that the lake owners

jealously guarded their ownership of the lake

and enjoyed a long-term, friendly and permissive

relationship with the state...

(App. 93)

The minority did not mince words saying, in effect,

that the majority’s decision was result-criented:

Indeed, a fair reading of the record in this case

suggests that the state was stunned by the vo-

luminous documentary proof offered by (Pascoag)

establishing a long history of beneficence toward

the abutters and the public to use and enjoy the

reservoir. Tellingly, the argument by the state

sums up the result the majority has reached to-

day: “Well, the mills have gone south and times

have changed, so what is the economic utility of

this (reservoir) now? It’s to support the residen-

tial subdivision along the shores.”

(App. 97)

The minority, understanding that only the judiciary

can stand between the State’s maked power and the

constitutional rights of its subjects, concluded in the

strongest language available to it that the majority’s

decision was “incorrect and unjust”, and declared that

Pascoag “should be compensated.” (App. 100, 97)

B. Pascoag’s Federal Taking Action in the United

States District Court of Rhode Island

On October 18, 2001, Pascoag took the minority to

heart. It filed suit in the United States District Court of

Rhode Island to assert its federal inverse condemnation

claim. (App. 101-108) The State moved to dismiss Pas-

coag’s complaint based upon the statute of limitations. In

response, Pascoag argued that its complaining was not

time-barred because its claim did not accrue until the

Rhode Island Supreme Court decided Reitsma. Before that

Court reversed the judgment of the trial court, Pascoag

still owned the Reservoir and its lake bed in its entirety,

without limitation. Thus, Pascoag had no case for a taking

until it lost in the Rhode Island Supreme Court, when its

property rights and interest were finally resolved or

stabilized.

The District Court of Rhode Island agreed with

Pascoag what a state’s acquisition of private property by

prescription gives rise to a takings claim under the United

States Constitution:

This dispute places this Court in a curious junc-

ture between property law and constitutional

law. In property law, it is a straightforward

proposition that, under certain conditions, title to

property may, by operation of law, be transferred

—————E———

to another without compensation. In constitu-

tional law, it is a straightforward proposition

that government cannot take private property

without just compensation. This Court must de-

termine how these two propositions interact with

each other. Although (the State) contends that

the two areas of law are mutually exclusive, they

are not. Any state statute must adhere to the re-

quirements of the United States Constitution. In

this case, the Court concludes that (Pascoag) has

alleged a takings claim against the State of

Rhode Island.

(App. 18)

The District Court ruled further that the conclusion of

the prescriptive period back in 1975 did not mark the

accrual of Pascoag’s federal claim for compensation. To

quote the District Court:

e “Pascoag’s predecessor may not have had a ripe cause

of action in federal court in 1975.” (App. 57)

e “[A] takings claim is not ripe for federal court review

until there is a final decision by the state court on the

merits.” (App. 55-56)

° “This court is well aware that a federal takings claim is

ripe only after a state court renders a final decision on

the merits, and the statute of limitations does not begin

to run in a federal takings claim until the claim is ripe

under federal law.” (App. 57)

° “For state law purposes, this claim is twenty-three

years old, yet it is only ripe for federal law purposes

now.” (App. 57)

Although the District Court recognized that Pascoag’s

federal claim had only just recently ripened due to the

decision in Reitsma, it nevertheless dismissed the claim as

——_—

if it were a generic state law claim that had accrued in

1975 and had become time-barred three years later. (App.

57-58)

C. The First Circuit’s Decision

Pascoag appealed the District Court’s grant of the

State’s Motion to Dismiss Petitioner’s complaint. The First

Circuit Court of Appeals affirmed, although it held that

the statute of limitations’ should apply seemingly without

regard to any notion of an independent federal claim, and

summarily dismissed any concern with ripeness in a

footnote. (App. 8-15) According to the First Circuit, the

term “ripe” is confusing (although this Court appears to be

content with it). Ultimately, the First Circuit made no

attempt to clarify its perceived confusion apart from

noting that Supreme Court precedent may reveal a claim

“to be either unripe (too early) or overripe (too late).” (App.

11) Terminology aside, the stakes in this case are high,

involving 350 acres of land rather than a few melons.

The First Circuit held further, sua sponte, that Pas-

coag should have filed suit for compensation in the State

* And what is the appropriate statute of limitations? Well, that

depends on which court’s view one relies upon. The Rhode Island

Supreme Court suggests that the appropriate suit limitations period

may be ten years; the United States District Court suggests that the

period is three years; and the United States Court of Appeals suggests

that it is one year. (N.B. Each court suggests that the suit limitations

period began to run at the end of the prescriptive period, in 1975.)

While these decisions provide no guidance for the perplexed (and

further emphasize the confusion faced by Pascoag), Pascoag filed its

takings claim within three months after the parties’ property interests

were finally resolved by the Rhode Island Supreme Court in Reitsma.

Court, even though the Rhode Island Supreme Court had

already made clear to Pascoag (and to the world, for that

matter) the futility of such an action, given its gratuitous

views on accrual and timeliness. (App. 11-15) The First

Circuit did not reach the issue raised in the State’s cross-

appeal, namely, whether governmental acquisition of

private property via prescription amounts to a taking.

(App. 3)

WHY THE WRIT OF CERTIORARI SHOULD ISSUE

I. The State of Rhode Island’s Acquisition of

Pascoag’s Property by Prescription is a Taking

Requiring Just Compensation

The Fifth Amendment to the U.S. Constitution states

that “private property shall not be taken for public use

without just compensation.” The Takings Clause of the

Fifth Amendment, of course, applies to the states through

the Fourteenth Amendment, Chicago, B. & O. R.R. Co. v.

City of Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586

(1897), and applies to takings by inverse condemnation as

well as by eminent domain.

Although the First Circuit mused during oral argu-

ment that the loss of property by prescription may not give

rise to a taking, it reserved that question in its opinion.

However, the First Circuit’s hesitancy is simply out of sync

with the constitutional mandates of this Court. Here, the

State acquired a recreational easement that limits Pas-

coag’s right to exclude others and, in fact, requires Pas-

coag to suffer the presence of the public in perpetuity

thereby precluding any other use that Pascoag may make

of the Reservoir. |

‘

To say that the appropriation of a public ease-

ment across a landowner’s premises does not

constitute the taking of a property interest but

rather ‘a mere restriction on its use’... is to use

words in a manner that deprives them of all their

ordinary meaning.... We think a ‘permanent

physical occupation’ has occurred . . . where indi-

viduals are given a permanent and continuous

right to pass to and fro, so that the real property

may continuously be traversed, even though no

particular individual is permitted to station him-

self permanently upon the premises.

Nollan v. California Coastal Comm., 483 U.S. 825, 831-32,

107 S.Ct. 3141, 3145-46 (1987).

The State acquired the paramount rights which

inhere in ownership of property — control of use of the

property and exclusion of others from it. Palazzolo uv.

Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 2457

(2001)’; Loretto v. Teleprompter Manhattan CATV Corp.,

" In Palazzolo, this Court criticized the Rhode Island Supreme

Court’s efforts to support the State of Rhode Island at the expense of its

citizens. The Rhode Island Supreme Court determined that Palazzolo

had not used every possible avenue to seek use of his property and still

had options for development to pursue (notwithstanding at least four

denials). This Court made relatively short shrift of this argument:

The suggestion is that while the Council rejected peti-

tioner’s effort to fill all of the wetlands, and then rejected

his proposal to fill 11 of the wetland acres, perhaps an ap-

plication to fill (for instance) 5 acres would have been ap-

proved. Thus, the reasoning goes, we cannot know for sure

the extent of permitted development on petitioner’s wet-

lands.

533 U.S. at 619; 121 S.Ct. at 2458. The United States Supreme Court

rejected this approach noting that the wetlands regulations at issue

were unequivocal and that there was no indication that the Coastal

(Continued on following page)

an Ce ee Se oe

458 U.S. 419, 433, 102 S.Ct. 3164, 4174-75 (1982); Kaiser

Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct.

383, 393 (1979). It does not matter how the State took

these property interests; what is important is that the

Constitution mandates that the State pay compensation

for what it took. First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 314-15, 107

S.Ct. 2378, 2385-86 (1987).

II. Pascoag’s Federal Taking Action Accrued

When the Rhode Island Supreme Court De-

cided the Underlying Litigation

Normally, when a sovereign has physically invaded

private property, the extent, and even the fact, of the

physical taking are obvious and known at that time, and

any taking compensation goes to the owner at that time,

not to a subsequent owner. The landowner’s federal taking

claim accrues upon the government’s physical occupation

of the property, typically prompting actual or constructive

notice to the landowner of the injury. Palazzolo, 533 U.S.

at 628, 121 S.Ct. at 2463 (2001); United States v. Dow, 357

U.S. 17, 20-21, 78 S.Ct. 1039, 1043-44 (1958).

Although Pascoag was not the owner of the Reservoir

at the time of conclusion of the prescriptive period (1975),

as noted above, this fact does not bar Pascoag from com-

pensation as a successor owner. The First Circuit held

Resources Management Council (“CRMC”) would have accepted

Palazzolo’s proposal had it encompassed a smaller area because it had

already decided that the proposed use was not a compelling public

purpose, regardless of size.

that Pascoag’s District Court claim was _ time-barred

because Pascoag did not seek compensation in the State

court within some unspecified suit limitations period

following the conclusion of the ten-year prescriptive period

back in 1975. (App. 11-15) However, this perfunctory

disposition by the First Circuit completely dismissed the

significance of the unique evolution of the State’s grab of

Pascoag’s property as described above, and its effect on

notice to the owner of the Reservoir. Had the First Circuit

taken into account pertinent federal precedent on claim

accrual in a physical taking, its decision would have been

different.

A. In a Physical Taking, the Landowner’s

Federal Cause of Action for an Uncompen-

sated Taking Accrues When the Status of

the Property Has Stabilized Sufficiently

that the Landowner Knew or Should Have

Known that it Had a Taking Claim

The law on accrual of a federal taking claim in a

physical taking begins with United States v. Dickinson,

331 U.S. 745, 67 S.Ct. 1882 (1947). Dickinson concerns a

taking which occurred by a continually evolving physical

occupation by the government. It built a dam, causing

water levels to rise and flood plaintiff's property. The

statute of limitations on the landowner’s taking claim did

not begin to run when the dam first impounded water, nor

when it was fully operable and the land was partially

submerged. This Court noted that the Government could

have condemned the property, but instead allowed time to

pass (as in this case), “thereby putting on the owner the

onus of determining the decisive moment in the process of

acquisition by the United States when the fact of taking

j could no longer be in controversy.” Dickinson, 331 U.S. at

748, 67 S.Ct. at 1384.

j This Court emphasized the priority which just com-

q ° ° ° ° ° ° °

F pensation takes over mechanical time limitations, stating

: that the Constitution is “intended to preserve practical

and substantial rights, not to maintain theories.” Id.

[citing Davis v. Mills, 194 U.S. 451, 457, 24 S.Ct. 692, 695

(1904)).

The Fifth Amendment expresses a principle

of fairness and not a technical rule of procedure

enshrining old or new niceties regarding “causes

of action” — when they are born, whether they

proliferate, and when they die.

AE RB LO ere Os

We are not now called upon to decide

whether in a situation like this a landowner

might be allowed to bring suit as soon as inunda-

tion threatens. Assuming that such an action

would be sustained, it is not a good enough rea-

son why he must sue then or have, from that

moment, the statute of limitations run against

him. If suit must be brought, lest he jeopardize

his rights, as soon as his land is invaded, other

contingencies would be running aga-nst him — for

instance, the uncertainty of the damage and the

risk of res judicata against recovering later for

damage as yet uncertain. The source of the entire

claim — the overflow due to rises in the level of

the river — is not a single event; it is continuous.

And as there is nothing in reason, so there is

| nothing in legal doctrine, to preclude the law

from meeting such a process by postponing suit

until the situation becomes stabilized.

Detain rin beth Se ie PII, Ad NI? adel Realy ate gt Sen Os wet Sant 3

When dealing with a problem which arises

under such diverse circumstances, procedural

rigidities should be avoided. All that we are here

holding is that when the Government chooses not

to condemn land but to bring about a taking by a

continuous process of physical events, the owner

is not required to resort either to piecemeal or to

premature litigation to ascertain the just com-

pensation for what is really “taken”.

331 U.S. at 748-49, 67 S.Ct. at 1385 [emphasis added].

Dickinson is the source of the doctrine that where (as

here) the Government has taken property not by condem-

nation but instead by allowing a physically invasive

process to evolve, the owner is not faced with a running

suit limitations clock until the situation has become

sufficiently defined that the taking and its extent are

complete and ascertainable. Although Dickinson concerned

literal stabilizing of flood levels, the stabilization doctrine

has broadened to encompass more general circumstances

and conditions that affect notice to the landowner that he

has a taking claim.

Dickinson “stabilization” factors are not limited to the

existence and extent of the literal physical incursion into a

landowner’s property. Determination of when stabilization

occurs is highly fact-intensive and varies with each case.

Cooper v. U.S., 825 F.2d 762, 764 (Fed. Cir. 1987) [citing

Barnes v. United States, 538 F.2d 865, 873 (Cl.Ct. 1976)].”

* The fact that the plaintiff in Cooper acquired legal title to the

property only two years earlier did not bar his claim. Although many

pertinent events had occurred during his predecessor’s ownership, it

was during the plaintiff’s ownership that the damage stabilized and

the claim accrued. Jd. at 764.

Rae SRN +

Stabilization considerations include conduct by the

government which might dissuade a landowner from filing

an action for just compensation. For example, Applegate v.

United States, 25 F.3d 1579 (Fed. Cir. 1994), involved a

landowner’s claim that a taking has occurred as a result of

erosion of their beach front property due to a federal

harbor project. Uncertainty about the status of the prop-

erty tolled the suit period. Intermittent representations by

government employees about restoring Plaintiffs’ eroded

land was a significant stabilization factor holding back the

start of the suit limitations clock. Because of the govern-

ment’s promises, “the landowners did not know when or if

their land would be permanently destroyed.” Id. at 1583.

“Uncertainty stayed accrual of the claim” where the

“Government’s promises to restore the littoral flow de-

stroyed any predictability of the extent of the damage to

the land,” tolling the statute of limitations “as long as the

landowners remain justifiably uncertain about the perma-

nency of the erosion and the taking.” Id.

The most recent federal jurisprudence applies a “knew

or should have known” or a “justifiable uncertainty” test to

the landowner to determine the time of accrual for a

taking claim for a physical taking. Presumably, the federal

courts perceive the inherent unfairness in barring a

landowner from compensation for the loss of his property

to the government if that landowner could not reasonably

have been aware of the fact and extent of his loss.

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

Plaintiff's land was eroded as a result of artificial land

cuts that were made to create a more navigable waterway.

The time of accrual of Plaintiff’s was gauged by whether

“all events which fix the government’s alleged liability

have occurred and the plaintiff was or should have been

aware of their existence.” Jd. at 1370 [citing Hopland

Band of Pomo Indians v. United States, 855 F.2d 1573,

1577 (Fed. Cir. 1988). Once the permanent nature of the

taking was evident and the damages were reasonably

foreseeable, the taking claim accrued. Jd. at 1372-73. This

determination being intensely fact-driven, the case was

remanded to the Court of Federal Claims for a factual

inquiry.

In Banks v. U.S., 314 F.3d 1304 (Fed. Cir. 2003),

property owners sued to recover for a taking of their

property due to erosion of their shoreline caused by gov-

ernment-constructed jetties. Their taking claims did not

accrue when the jetties were constructed, nor as their

shoreline eroded, nor during the fifteen year period while

the government took action to mitigate the situation.

During that lengthy period of time, although the problem

was apparent, it remained unclear whether there in fact

was any permanent taking. Rather, it was not until expert

reports stating that the situation was permanent and

irreversible were issued that the landowners’ claims

accrued and the statute of limitations began to run.

“Stabilization (in a taking claim following a physical

taking) occurs when’ it becomes clear that the gradual

process set into motion by the government has effected a

permanent taking, not when the process has ceased or

when the entire extent of the damage is determined.” Jd.

at 1308 [citing Boling, supra, at 1370-71]. The Banks court

clarified Applegate, supra, emphasizing that “the critical

element” that delays stabilization (and thus accrual and

the running of the statute of limitations) is the landowner’s

“justifiable uncertainty about the permanency of the

taking.” Id. at 1309 [quoting Applegate, 25 F.3d at 1372].

The taking claim only “stabilizes when the ‘permanent

Te ee

—e ome

nature’ of the taking is evident.” Id. [quoting Fallini v.

U.S., 56 F.3d 1378, 1382 (Fed. Cir. 1995).

inet x RG sissalh anvinads eb

Most recently, the role of notice to the landowner

within the stabilization doctrine has been examined in

John R. Sand and Gravel Co. v. U.S., 57 Fed.Cl. 182

(2003). In that case, a long-term lessee of a 158-acre parcel

filed a physical taking claim because, over a period of

years, the Environmental Protection Agency had accessed

the land, installed fences and monitoring wells, and

removed hazardous materials. The lessee’s taking claim

did not accrue until its property “had been clearly and

permanently taken.” Jd. at 187 (citing Hornback v. U.S.,

52 Fed.Cl. 374, 377 (2002); Boling, 220 F.3d at 1370]. The

requisite completeness of the physical invasion and occu-

pation of the land to trigger accrual had not occurred (with

the exception of a few places on which the government had

installed permanent wells). Jd. at 189. The government’s

actions were analogized to the “continuous process of

physical events” addressed in Dickinson.

res

a aa hes

The Sand court rejected the government’s argument

that the lessee’s claim accrued because it was aware of all

of the facts necessary to establish the government’s

liability. Rather, the court explained, fact awareness alone

is not enough. Conditions must have already stabilized,

and then the landowner’s notice of his claim must be

examined. Id. at 190 [citing Dickinson, supra; Boling, 220

F.3d at 1371] Thus, even though the lessee had earlier

known that it had a potential taking claim (as evidence by

its attorney’s letters attempting to negotiate a settlement),

“this is not a good enough reason why he must sue then or

have, from that moment, the statute of limitations run

against him.” Id. at 192 [citing Dickinson, 331 U.S. at 749;

67 S.Ct. at 1382].°

B. Before the Landowner’s Federal Claim for

Just Compensation Accrues and Ripens,

Underlying State Court Litigation as to the

Existence and Scope of the Property Inter-

est Taken Must be Finally Resolved

Federal courts have consistently held that underlying

state court litigation, concerning the existence and scope of

the property interest allegedly taken, must be resolved

before a landowner’s federal claim for just compensation

accrues and ripens. Otherwise, a landowner would have to

pursue a claim that may be vague and undefined or even

rendered moot by the state court’s decision (which is, of

course, why Pascoag’s counterclaim for inverse condemna-

tion in the underlying state court litigation was dismissed

without prejudice at the trial caurt level).

* Compare Nollan v. California Coastal Comm., supra, which

involves a regulatory taking. Before the beach front landowners in

Nollan acquired their property, they were already aware of a pre-

existing building permit requirement that owners must provide a public

easement to the waterfront. Yet, they had a taking claim which accrued

upon the “triggering event” of the state’s compulsion that they provide

the easement. Thus, it is the impact of the event that is alleged to be a

taking, rather than notice of that event alone, which determines when

the taking claim accrues and who has standing to bring such a claim.

See Palazzolo, 533 U.S. at 642-43, 121 S.Ct. at 2471 (Stevens, J.,

dissenting).

¢ In Norco Const., Inc. v. King County, 801 F.2d

1143 (9th Cir. 1986), a developer sought approval of his

proposed plat to subdivide and construct houses. The

county failed to act upon Norco’s proposal and enacted an

ordinance requiring deferral of plat approvals that were

inconsistent with pending amendments to the county

comprehensive plan. Norco then petitioned the state court

for issuance of a writ of mandamus to compel action on his

application. The writ issued, requiring action under

ordinances in effect at the time the application was filed.

It was affirmed by the state supreme court. The county

only then approved Norco’s application. Norco then sued

the county alleging, inter alia, that he was damaged by the

county’s taking of his property without just compensation.

Although state statutes of limitations applied, the Ninth

Circuit held that the developer’s takings action was not

time-barred. The cause of action did not accrue until the

state supreme court had issued its opinion affirming

issuance of the writ of mandamus and the county made its

final decision on the plat proposal. Federal and state

claims for inverse condemnation and related damages

claims “are not matured until planning authorities and

state review entities make a final determination on the

status of the property.” Id. at 1145-46 [following William-

son Co. Regional Planning Comm. v. Hamilton Bank, 473

U.S. 170, 105 S.Ct. 3108 (1985)] To hold otherwise would

bar relief before the landowner has a right to enforce his

claim. Jd. at 1146.

e In Corn v. City of Lauderdale Lakes, 904 F.2d 585

(11th Cir. 1990), Corn’s efforts to develop his parcel of land

had been thwarted when the city tabled his site plan,

amended its ordinances changing permitted uses on the

property, and then denied plaintiff’s plan. The state court

granted Corn’s petition for a writ of mandamus, held the

new ordinances inapplicable to Corn’s plan, and ordered

the city to approve it. Corn then initiated federal court

litigation alleging a temporary taking. The City responded

by moving to dismiss Corn’s takings claim on the ground

that, inter alia, it was time-barred. The District Court,

rejected the city’s contention and the Eleventh Circuit

affirmed because Corn’s taking action did not accrue until

the state appeals court’s final decision on mandamus,

which determined, with finality, the status of Corn’s

property, a necessary antecedent to the takings action. Id.

at 588 [citing Norco, supra].

e The Eleventh Circuit later expanded the rule in

Corn in New Port Largo, Inc. v. Monroe County, 985 F.2d

1488 (11th Cir. 1993), in which the county had re-zoned

plaintiffs land from “residential/duplex” to “private

airport”. Plaintiff petitioned the state court for a writ of

certiorari, alleging that the re-zoning violated state

procedural requirements for re-zoning large tracts of land.

Plaintiff sold the land while the petition was pending, and

amended its state court petition to include a claim that the

re-zoning had effected a taking of its property without just

compensation. The state court invalidated the rezoning,

but denied damages to the plaintiff. Plaintiff then sued in

federal court for just compensation, in response to which

the government moved to dismiss on the statute of limita-

tions. The Eleventh Circuit held that notwithstanding the

owner's sale of the affected property, the determination of

the accrual date of a federal takings claim depends on (1)

the date of the final determination by state judicial au-

thority of the status of the affected property, and (2) the

denial of an adequate post-deprivation remedy to the

property owner. Id. at 1493. Since the plaintiff's action

was filed within the statutory period following the state

court’s final determination, the federal court action was

timely filed, notwithstanding the plaintiff's sale of the

property before the state court action had finally con-

cluded. Until final adjudication in the state court of the

underlying status of the affected property, and the denial

of a remedy to the landowner, no cause of action for just

compensation has yet accrued. Id. at 1494 [citing Corn,

904 F.2d at 588]

e In Katz v. Stannard Beach Ass’n, 95 F.Supp.2d 90

(D.Conn. 2000), the Plaintiffs were sued in state court by

the political subdivision in which their property was

located. In that action, the government sought the declara-

tion of an easement over Katz land to the beach, alleging

that the Plaintiffs had improperly blocked a walkway to

the shore and replaced it with bushes. The Plaintiffs

meanwhile initiated an action in federal court alleging

that the claims in the state court action amounted to a

taking under the Fifth and Fourteenth Amendments of the

U.S. Constitution and parallel provisions of the state

constitution. Following Williamson County, supra, the

District Court in Connecticut dismissed the Katz takings

claims as premature and unripe, as they were merely

“based on the potential that at some point in the future

the state court action may be resolved in a manner unfa-

vorable to their claim of exclusive property ownership.”

Katz, 95 F.Supp. at 98. Until the government had already

conclusively established its property interest in the Plain-

tiffs’ land, their takings action in the federal court would

not yet lie.

¢ In Mehta v. Surles, 720 F.Supp. 324 (S.D.N.Y.

1989), the landowners alleged in federal court that the use

of a common driveway by a community mental health

facility constituted a taking without just compensation.

The federal takings action was dismissed as unripe,

though, because the state coyrt had yet to resolve the

scope of the driveway easement in another piece of litiga-

tion, then pending. Until that time, no property depriva-

tion allegation was legally cognizable because the parties’

respective property rights in the common driveway had

not yet been clarified by the state court. Jd. at 334, aff’d in

part, vacated in part on other grounds, 905 F.2d 595, 599

(2d Cir. 1990)

C. Pascoag’s Taking Claim Did Not Accrue

Until the State Supreme Court Decided

that the State Had Acquired an Interest in

Pascoag’s Property, Thereby Stabilizing

the Status of the Property

Pascoag did not unduly delay seeking just compensa-

tion. Before June, 2001, Pascoag required no such remedy

nor was it available to Pascoag. Moreover, Pascoag could

not reasonably have known that it had such a claim.

Before the Rhode Island Supreme Court reversed the trial

court’s holding in June, 2001, the State’s recent prescrip-

tive claim had gone for naught and was, at best, unre-

solved. It is also noteworthy that the State had actually

negotiated with Pascoag to purchase the Reservoir practi-

cally up to the moment that it filed suit in 1998 and had

steadfastly insisted that Pascoag and its predecessors

maintain the Reservoir, as its sole owner, prior thereto.

These circumstances created a state of “instability” or

“justifiable uncertainty” for which Pascoag cannot be

charged.

As discussed above, the Rhode Island Supreme Court

found it necessary to change long-settled law in order to

achieve a reversal of the trial court’s judgment for Pascoag.

However, because the State had continually and affirma-

tively represented to Pascoag that it did not consider itself

to hold any interest in Pascoag’s property, Pascoag was

never on notice, in real time, that the State had obtained

such an interest (in utter contradiction to its own represen-

tations and actions). Moreover, Pascoag could not have

known — short of premonition — that it would be held to a

standard of “claim of right” theretofore unknown in Rhode

Island law on adverse possession and prescription. Yet, this

is precisely the legal conundrum which the First Circuit

adopted, leaving Pascoag with a wrong for which it could

not have obtained a remedy before the State Supreme

Court’s final disposition of the underlying litigation.

Until the State Supreme Court finally resolved ques-

tions of who held what interests in the property, Pascoag

was in a state of “justifiable uncertainty”, and its taking

claim had not yet accrued or ripened. Yet, the First Cir-

cuit’s decision forecloses Pascoag’s federal taking claim by

implicitly adopting dicta in the Rhode Island Supreme

Court’s opinion as to the timeliness of any state law taking

claim.” This cannot stand.

Pascoag accepts the decision of the Rhode Island

Supreme Court as to prescription — as it must — but it

cannot abide the piracy of its claim for just compensation.

As the District Court astutely observed, federal courts are

not bound by state court determinations on issues of

federal law. (App. 46) To base the deprivation of a land-

owner’s federal takings compensation on the unavailability

* An issue not even before the state supreme court.

of a state remedy would turn federal takings jurisprudence

on its head — it is, after all, the unavailability of a state

reinedy which gives rise to the landowner’s federal taking

claim.

III. The First Circuit Failed to Recognize that the

Futility of Seeking a State Law Remedy Enti-

tled Pascoag to Pursue a Federal Taking Claim

To add insult to injury, the First Circuit decided that

Pascoag should have pursued its inverse condemnation

claim in state court, even though it recognized a “futility”

exception where “the granting authority has dug in its

heels and made it transparently clear that the (desired

result) will not be forthcoming.” (App. 9) The First Circuit

acknowledged that the Rhode Island Supreme Court had

taken it upon itself to discuss Pascoag’s taking claim,

dismissively, in dicta as follows:

[E]ven if the state’s conduct from 1965 to 1975

had been unlawful and amounted to an improper

taking of the lake owner’s property without pay-

ing just compensation, and even if the lake

owner’s property had been taken in the constitu-

tional sense until the prescriptive period ended

in 1975 — issues that we have no need to decide

in this case — the corporation and its predeces-

sors failed to assert any takings claim in a timely

manner. Thus, they are barred from asserting

them now under any statute of limitations that

possibly could apply to such claims...

(App. 9-10) Although this language was surely designed to

discourage Pascoag from proceeding further, the First

Circuit asserts that “Pascoag offers no compelling explana-

tion for not using state procedures.” (App. 10-11) This is

utterly disingenuous for two reasons. To begin with, the

First Circuit raised the “futility issue” on its own — the

State itself knew better than to make this argument.

Thus, no one asked Pascoag for an explanation because

this was not an issue before either the District Court or

the First Circuit, for that matter, until the First Circuit

made it an issue, and then only in its opinion.

Second, the First Circuit has framed the issue to

suggest that the Rhode Island courts may have seen fit to

entertain an inverse condemnation claim had it been

brought in 1975 or some time shortly thereafter. By so

doing, the First Circuit has simply ignored Pascoag’s

argument that the inverse condemnation claim did not

accrue and was not ripe until 2001. That, to Pascoag, is

the essence of futility. Put another way, both the First

Circuit and the Rhode Island Supreme Court insist that

Pascoag’s inverse condemnation claim should have been

brought years ago and utterly ignore Pascoag’s argument

that its claim did not accrue and was not ripe until the

Rhode Island Supreme Court decided Reitsma. By so

doing, both the First Circuit and the Rhode Island Su-

preme Court profess that Pascoag’s federal rights, “in the

constitutional sense,” are coextensive with its rights under

state law, even though this Court has made it clear that

constitutional guarantees would be rendered meaningless

if “our inquiry could be concluded by a state supreme court

holding that state property law accorded the plaintiff no

rights.” Bush v. Gore, 531 U.S. 98, 115, 121 S.Ct. 525, 535

n.1 (2001)

CONCLUSION

The Court should grant the petition for a writ of

certiorari and reverse the decision of the First Circuit

Court of Appeals.

Respectfully submitted,

BARRY J. KUSINITZ, Esq.

Attorney of Record for Petitioner

155 South Main Street, Suite 405

Providence, Rhode Island 02903

(401) 831-4200

Dated: October 17, 2003

INDEX TO APPENDIX

Page

Pascoag Reservoir & Dam, LLC v. Rhode Island,

BST F.34 G7 (lat Gir. BBOB)....ccccesseccescesccccsscescceese App. 1

Pascoag Reservoir & Dam, LLC uv. Reitsma, 217

F. Supp. 2d 206 (D.R.I. 2002)................sseccsssscveees App. 17

Reitsma v. Pascoag Reservoir & Dam, LLC, 774

FF Se ee SED ceca esctennininnenivicinimmian App. 61

Complaint in Pascoag Reservoir & Dam, LLC uv.

Reitsma (United States District Court for the

RETEGS GE FIED TI svcccceccecccessecesecesesessonstores App. 101

App. 1

337 F.3d 87

United States Court of Appeals,

First Circuit.

PASCOAG RESERVOIR & DAM, LLC,

Plaintiff-Appellant/Cross-Appellee,

The State of RHODE ISLAND, acting by and through

Jan Reitsma, in his capacity as Director of the Rhode

Island Department of Environmental Management, and

Sheldon Whitehouse, in his capacity as Attorney General

for the State of Rhode Island, Defendants-Appellees/

Cross-Appellants.

Nos. 02-2179, 02-2233.

Heard April 11, 2003.

Decided July 28, 2003.

Barry J. Kusinitz, for plaintiff-appellant/cross-

appellee.

Michael Rubin, Assistant Attorney General, with

whom Sheldon Whitehouse, Attorney General, James R.

Lee, Assistant Attorney General Div. Chief for the State of

Rhode Island, Claire Richards, Deputy Executive Counsel,

and Mary Kay, Deputy Chief Legal Counsel, for the Rhode

Island Department of Environmental Management, were

on brief, for defendants-appellees/cross-appellants.

Before BOUDIN, Chief Judge, TORRUELLA and

LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Rhode Island, through its Department of Environ-

mental Management, acquired an area of land in the

Pascoag Reservoir (“Reservoir” or “Lake”) by adverse

possession and obtained a prescriptive easement on behalf

; ,

App. 2

of the public to use the Reservoir for recreational activi-

ties. In this inverse condemnation suit,’ Pascoag Reservoir

& Dam, LLC (“Pascoag”), the Reservoir’s owner, seeks

compensation for that acquisition.

The district court dismissed the case for failure to

state a claim. Pascoag Reservoir & Dam, LLC v. Rhode

Island, 217 F.Supp.2d 206, 229 (D.R.I.2002) (hereinafter

“Pascoag Federal Decision”). The court found that, as a

general rule, the government must compensate for a

taking made by adverse possession or prescription, but

Pascoag may not recover in this case either because the

statute of limitations began to run in 1975, when the state

acquired its property rights, or because the doctrine of

laches bars recovery. Id. at 226-29. The court then dis-

missed Pascoag’s state law claims. Jd. at 229.

er a

The state appeals the first finding, asserting that

adverse possession and prescription do not constitute a

taking of property under the Constitution. Pascoag ap-

peals the dismissal of its claim, arguing that the statute of

limitations did not begin to run until the recent judicial

determination that the state had acquired property rights

in the Reservoir.

We agree with the district court that Pascoag failed to

state a viable claim. Because Pascoag failed to timely

* Inverse condemnation is “‘a cause of action against a governmen-

tal defendant to recover the value of property which has been taken in

fact by the governmental defendant, even though no formal exercise of

the power of eminent domain has been attempted by the taking

agency.’” United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63

L.Ed.2d 373 (1980) (quoting D. Hagman, Urban Planning and Land

Development Control Law 328 (1971)).

App. 3

pursue its state remedies, it forfeited its federal claim.

Following the “fundamental rule of judicial restraint,” we

do not reach the constitutional question of whether com-

pensation is due when the state acquires land by adverse

possession or prescription. Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 62, 119 S.Ct. 977, 143 L.Ed.2d 130

(1999) (Ginsburg, J., concurring in part and concurring in

the judgment) (quotation omitted); see also Kelly v. Mar-

cantonio, 187 F.3d 192, 197 (1st Cir.1999) (declaring

“courts should not reach constitutional questions in

advance of the necessity of deciding them”).

I. Facts

Located in the towns of Burrillville and Glocester,

Rhode Island, the Reservoir (also known as Echo Lake) is

more than two miles long and has more than ten miles of

shoreline. Pascoag’s predecessor in title created the Lake

in 1860; Pascoag has owned the Reservoir since 1983. In

1964, the state purchased a lot abutting the Reservoir and

constructed a public boat ramp the following year.

Until at least 1997, “members of the public could ...

use the ramp as a point of access to the lake for various

recreational activities, including boating and fishing.”

Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826,

829 (R.1.2001) (hereinafter “Pascoag State Decision”) The

Reservoir was enjoyed by “innumerable members of the

public and other lakeside property owners.” Id. In 1997,

Pascoag sought to limit the public’s use by placing a “NO

TRESPASSING?” sign near the water. Id.

In 1998, the state brought suit in state court assert-

ing, among other things, that it had acquired property

rights in the Reservoir. Pascoag cross-claimed, alleging

App. 4

that the state’s actions constituted a taking without just

compensation, but the state courts did not decide the

taking issue because Pascoag later voluntarily dismissed

its inverse condemnation claim. In 2001, the Rhode Island

Supreme Court held that the state had acquired by ad-

verse possession a small portion of the Lake bottom

(occupied by the boat ramp) and had acquired, on the

public’s behalf, a prescriptive easement to use the boat

ramp to access the entire Lake for recreational purposes.

Id. at 834. The court held “that the state had begun to use

the Reservoir property in 1965 and, under the Rhode

Island ten year adverse possession statute, had acquired

title to a portion of the Reservoir plus an éasement in

1975.” Pascoag Federal Decision, 217 F.Supp.2d at 211

(citing Pascoag State Decision, 774 A.2d at 838). The issue

in the state case was whether the state acquired land

rights by adverse possession and prescription; the Rhode

Island Supreme Court held that it did. Pascoag State

Decision, 774 A.2d at 834.

Pascoag filed this complaint in federal court in Octo-

ber 2001, alleging that the state violated the Takings

Clause of the Fifth and Fourteenth Amendments and

asserting related state law claims. The district court,

treating the claim as one arising under 42 U.S.C. § 1983,

dismissed the suit, and this appeal followed.

II. Standard of Review

We review de novo the district court’s dismissal for

failure to state a claim under Fed.R.Civ.P. 12(b)(6). Rock-

well v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir.1994). We

accept the complaint’s allegations as true and make all

reasonable inferences in favor of the plaintiff. Jd. We will

App. 5

affirm the dismissal only if Pascoag cannot prove any facts

entitling it to relief. Id.

III. Discussion

A. Prerequisites to a Takings Claim

In Williamson County Regional Planning Commission

v. Hamilton Bank, the Supreme Court outlined two pre-

requisites to a federal suit alleging a Fifth Amendment

taking of a property interest. 473 U.S. 172, 186, 194-95,

105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). A federal suit is not

timely until a plaintiff demonstrates that (a) “the govern-

ment entity charged with implementing the regulations

has reached a final decision regarding the application of

the regulations to the property at issue,” (the “final deci-

sion requirement”) and (b) the plaintiff sought (and was

denied) just compensation by means of an adequate state

procedure (the “state action requirement”).’ Id. at 186,

194-95, 105 S.Ct. 3108. Williamson County stands “for the

proposition that there is no uncompensated taking — that

is, nothing to litigate under § 1983 — until the state has

established (a) what it has taken, and (b) its refusal to pay

‘just compensation.’” SGB Fin. Servs., Inc. v. Consol. City

of Indianapolis-Marion County, Ind., 235 F.3d 1036, 1038

(7th Cir.2000).

* This case does not raise the issue of whether the Williamson

County requirements apply when a litigant alleges that the state has

taken property for a purely private use. See Daniels v. Area Plan

Comm'n, 306 F.3d 445, 453 & n. 6 (7th Cir.2002) (identifying circuit

split and citing cases).

App. 6

Although Williamson County was a regulatory taking

case, a modified verison of its timeliness analysis applies

to physical taking cases. Daniel v. County of Santa Bar-

bara, 288 F.3d 375, 382 (9th Cir.2002). The present case

concerns a potential physical taking, based on the intru-

sion onto Pascoag’s property or the acquisition of rights in

that property.® In a physical taking case, the final decision

requirement is relieved or assumed because “[wJhere there

has been a physical invasion, the taking occurs at once,

and nothing the [governmental actor] can do or say after

that point will change that fact.” Hall v. City of Santa

Barbara, 833 F.2d 1270, 1281 n. 28 (9th Cir.1987); cf.

Arnett v. Myers, 281 F.3d 552, 563 (6th Cir.2002) (finding

final decision requirement satisfied because decision

maker “arrived at a definitive position inflicting an actual,

concrete injury when its agents removed and destroyed”

plaintiff’s alleged property); Forseth v. Village of Sussex,

199 F.3d 363, 372 n. 12 (7th Cir.2000) (finding physical

taking claim subject only to Williamson County’s state

action requirement). However, the state action require-

ment remains in physical taking cases: “[C]ompensation

must first be sought from the state if adequate procedures

are available.” Sinaloa Lake Owners Ass’n v. City of Simi

Valley, 882 F.2d 1398, 1402 (9th Cir.1989), overruled on

other grounds by, Armendariz v. Penman, 75 F.3d i811,

1326 (9th Cir.1996) (en banc).

* Both the fee simple in the Lake bottom and the easement on

behalf of the public are permanent physical occupations. See Nollan v.

Cal. Coastal Comm'n, 483 U.S. 825, 832, 107 S.Ct. 3141, 97 L.Ed.2d 677

(1987).

App. 7

B. State Action Requirement

Here, if Rhode Island “provides an adequate process

for obtaining compensation, and resort to that process

holds out some realistic promise of yielding just compensa-

tion,” Pascoag may not seek compensation in federal court

for an alleged taking without first resorting to the state

process. Gilbert v. City of Cambridge, 932 F.2d 51, 63 (1st

Cir.1991); accord Williamson County, 473 U.S. at 195, 105

S.Ct. 3108 (“[I}f a state provides an adequate procedure for

seeking just compensation, the property owner cannot

claim a violation of the Just Compensation Clause until it

has used the procedure and been denied just compensa-

tion.”). “{BJecause the Fifth Amendment‘ proscribes

takings without just compensation, no constitutional

violation occurs until just compensation has been denied.”

Gilbert, 932 F.2d at 63 (quoting Williamson County, 473

U.S. at 194 n. 13, 105 S.Ct. 3108); accord Gamble v. Eau

Claire County, 5 F.3d 285, 286 (7th Cir.1993) (stating that

a litigant must “exhaust[] his remedies for obtaining a

compensation award or equivalent relief from the state”

because “the right protected by the duty of just compensa-

tion is not to the land or its use but merely to the market

value of what is taken”). Thus, “the state’s action .. . is not

‘complete’ until the state fails to provide adequate compen-

sation for the taking.” Williamson County, 473 U.S. at 195,

105 S.Ct. 3108.

* The Fifth Amendment provides that “private property [shall not]

be taken for public use without just compensation.” U.S. Const. amend.

V. It applies to the states through the Fourteenth Amendment. Mac-

Donald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 342 n. 1, 106

S.Ct. 2561, 91 L.Ed.2d 285 (1986).

App. 8

Pascoag did not seek compensation through the state

court. Pascoag’s burden is to show that one of the narrow

exceptions to the state action requirement applies. The

Supreme Court in Williamson County identified two

exceptions — where state remedies were “unavailable” or

“inadequate.” 473 U.S. at 196-97, 105 S.Ct. 3108; accord

Deniz v. Municipality of Guaynabo, 285 F.3d 142, 146 (1st

Cir.2002); Gilbert, 932 F.2d at 65. Some courts have also

recognized an exception where state remedies are “futile.”

See, e.g., Daniels, 306 F.3d at 456.

1. Availability of adequate state remedies

First, we consider whether adequate state remedies

- were available to Pascoag. Courts have made exceptions to

Williamson County’s state action requirement when state

law did not recognize the taking that occurred, or did not

permit the relief required to make the plaintiff whole. See,

e.g., Daniels, 306 F.3d at 456-57 (finding an exception to

the state action requirement because plaintiffs did not

have a “definable pecuniary loss” and state inverse con-

demnation proceedings were limited to monetary dam-

ages); Hall, 833 F.2d at 1281 n. 28 (finding a state court

process inadequate because at the time, no action for

inverse condemnation based on a regulatory taking could

be brought under California law); see also Suitum v. Tahoe

Reg'l Planning Agency, 520 U.S. 725, 734 n. 8, 117 S.Ct.

1659, 137 L.Ed.2d 980 (1997) (“Ordinarily, a plaintiff must

seek compensation through state inverse condemnation

proceedings before initiating a takings suit in federal

court, unless the state does not provide adequate remedies

for obtaining compensation.”).

App. 9

Pascoag cannot show that Rhode Island’s remedies

were inadequate or unavailable. The Rhode Island Consti-

tution prohibits the taking of private property for public

use without just compensation and Rhode Island state

courts have long allowed recovery through suits for in-

verse condemnation. Annicelli v. Town of South Kings-

town, 463 A.2d 133, 139 (R.1.1983); E & J Inc. v.

Redevelopment Agency of Woonsocket, 122 R.I. 288, 405

A.2d 1187, 1189 (1979) (“Governmental action short of

actual acquisition of property may be a constructive taking

or an inverse condemnation ... .”); cf. Caldarone v. Rhode

Island, 98 R.I. 7, 199 A.2d 303, 304 (1964) (assessing

damages for land taken by state); see also Harris v. Mo.

Conservation Comm’n, 790 F.2d 678, 680-81 (8th Cir.1986)

(finding constitutional provision provided adequate rem-

edy). Thus, Rhode Island has an adequate process avail-

able to address Pascoag’s suit for just compensation.

2. Futility of pursuing state remedies’

In its decision regarding the property rights of the

state and Pascoag, the Rhode Island Supreme Court

discussed Pascoag’s potential takings claims in dicta:

[E]ven if the state’s conduct from 1965 to 1975

had been unlawful and amounted to an improper

taking of the lake owner’s property without

* We recognized a futility exception to Williamson County’s final

decision requirement where “the granting authority has dug in its heels

and made it transparently clear that the permit, application or no, will

not be forthcoming.” Gilbert, 932 F.2d at 61 (citation omitted). A futility

exception to the state action requirement would exist under similar

circumstances.

App. 10

paying just compensation, and even if the lake

owner’s property had not been taken in the con-

stitutional sense until the prescriptive period

ended in 1975 — issues that we have no need to

decide in this case — the corporation and its

predecessors failed to assert any takings claim in

a timely manner. Thus, they are barred from as-

serting them now under any statute of limita-

tions that possibly could apply to such claims. ...

Pascoag State Decision, 774 A.2d at 838. Pascoag argues ~

that because this language suggests that Pascoag’s claim

is time-barred, state court remedies are futile.

Again, Pascoag fails to carry its burden to show that

an exception to the state action requirement applies.

Pascoag’s futility argument is simply that it is now time-

barred from making state law claims. If the futility rule

were read this broadly it would swallow the general rule of

state remedy exhaustion. Like the other exceptions, the

futility exception must consider the landowner’s available

state remedies at the time of the taking. See Williamson

County, 473 U.S. at 194, 105 S.Ct. 3108 (“[AJll that is

required [by the Fifth Amendment] is that a reasonable,

certain and adequate provision for obtaining compensation

exist at the time of the taking.”) (quotation omitted). There

is no evidence that the state would not have been receptive

to Pascoag’s claim had it been brought at the time the

property was taken (regardless of whether that was in

1965 or 1975 — a determination we address below). Pas-

coag offers no compelling explanation for not using state

App. 11

procedures earlier,’ and we find that state court remedies

are not futile.

C. Consequences of Failure to Bring a

Timely State Claim

Pascoag did not satisfy the Williamson County pre-

requisites for a federal claim. We have stated that takings

claims are “unripe until the potential state remedy has

been more fully pursued.” Gilbert, 932 F.2d at 65. The

situation here is different. As the Rhode Island Supreme

Court noted, there is a fatal flaw in Pascoag’s claim: it is

* Because Pascoag’s federal claim has been forfeited, we need not

address the issue of whether Pascoag, who became the owner of the

Reservoir in 1983, has a right to compensation. See Palazzolo v. Rhode

Island, 533 U.S. 606, 628, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001)

(noting that in a physical taking case, “it is a general rule of the law of

eminent domain that any award goes to the owner at the time of the

taking, and that the right to compensation is not passed to a subse-

quent purchaser.”). .

" The term “ripe” is confusing because, as explained infra, a

plaintiff is barred from bringing federa! suit in a situation such as

Pascoag’s, where the state statute of limitations has run. Ripeness

terminology suggests that a claim will later be available to the plaintiff;

such language has been avoided in some recent cases. See City of

Monterey v. Del Monte Dunes at Monterey, Lid., 526 U.S. 687, 721, 119

S.Ct. 1624, 143 L.Ed.2d 882 (1999) (“A federal court, moreover, cannot

entertain a takings claim under § 1983 unless or until the complaining

landowner has been denied an adequate postdeprivation remedy.”);

Harbours Pointe of Nashotah, LLC v. Village of Nashotah, 278 F.3d 701,

704 (7th Cir.2002) (noting that a plaintiff “cannot state a claim under

federal law until he has used those [state] procedures and been denied

compensation.”); but see Palazzolo, 533 U.S. at 618, 121 S.Ct. 2448

(using “ripeness” to explain Williamson County’s requirements in the

regulatory taking context). We, too, avoid terms of ripeness because the

Williamson County requirements may reveal the claim to be either

unripe (too early) or overripe (too late).

App. 12

too late for any state law cause of action. Williamson

County requires the pursuit of state remedies before a

taking case is heard in federal court. Adequate state

remedies were available to Pascoag; it simply ignored

those remedies until it was too late. By failing to bring a

timely state cause of action, Pascoag forfeited its federal

claim.

We assume for purposes of this appeal that a taking

claim may arise when the government acquires property

rights by adverse possession or prescription. Reviewing

the dates as determined by the Rhode Island Supreme

Court, the state and the public began using the land and

water in a manner that was open, actual, notorious,

hostile, adverse, continuous, and under a claim of right in

1965. Pascoag State Decision, 774 A.2d at 834. Property

rights were acquired by the state and the public in 1975.

Id. at 838. The state court decision was issued in 2001.

Relying on United States v. Dickinson, 331 U.S. 745,

67 S.Ct. 1382, 91 L.Ed. 1789 (1947), Pascoag argues that

the circumstances surrounding the taking had not “stabi-

lized” until the Rhode Island Supreme Court’s final deci-

sion, and the statute of limitations did not begin to run

until that time. See id. at 749, 67 S.Ct. 1382. We find

Dickinson distinguishable. There, the government caused

plaintiff’s land to be flooded, and the water level rose over

a period of years. Id. at 747, 67 S.Ct. 1382. The govern-

ment did not use condemnation proceedings, but “left the

taking to physical events.” Id. at 748, 67 S.Ct. 1382. The

Court held that the statute of limitations did not begin to

run when flooding commenced, but only when physical

events stabilized, Id. at 749, 67 S.Ct. 1382. This ensured

that damages could be ascertained and that res judicata

would not bar recovery for future damage. Id.

_ es

App. 13

While Pascoag points to facts suggesting that the

situation regarding ownership of the Reservoir was not

certain as late as 1997, the State Supreme Court found

that the State’s use satisfied all the adverse possession

requirements by 1975. At that time a final account could

be struck, and nothing in the State’s use of the Lake

changed over time, so piecemeal litigation would not

result. There was continuous occupancy by the State for

ten years at which point property rights were acquired by

operation of law and, if compensable, must be countered

by a state court suit within the period allowed by the state

statute of limitations.

Pascoag also asserts that its claim was not ripe until

the decision of the Rhode Island Supreme Court. We

disagree. First, Pascoag’s argument is at odds with the

state court’s finding of adverse possession and prescrip-

tion, which is binding on Pascoag and requires open and

notorious possession by the adverse party. That determi-

nation means, assuming arguendo that a taking claim

could be made for acquisition by adverse possession or

prescription, Pascoag should have known that a taking

was in progress and brought suit under state law at that

time (within the relevant statute of limitations).° The

statute of limitations for a state taking claim is, at most,

10 years (for “all civil actions not otherwise limited”), and

* What remedies did Pascoag have available to it? From 1965 to

1975, before adverse possession and prescription transferred title,

Pascoag could have brought a suit to evict the state from the land or,

alternatively, should have demanded that the state agree in writing

that occupancy was not intended to be adverse but was by temporary

and revocable permission. This may seem harsh but adverse possession

law puts this burden on all landowners as to all occupants.

et Rea eS a et ee

ee ee

App. 14

likely 1 year (for “assessment of damages in state condem-

nation proceedings”). RI. Gen. Laws §9-1-36 (2002).

Pascoag’s claim was ripe under state law at least by 1975,

when Pascoag, assuming it had any claim at all, could

have brought suit for recovery in state proceedings. If it

had done so and the state had denied a remedy in violation

of the Constitution, then a § 1983 claim would have

ripened at the time of the denial. To its detriment, Pascoag

did not file suit, but instead waited until the state sought

judicial remedies in 1998.

Second, while the Williamson County requirements

typically reveal a claim to be premature, they may also

reveal that a claim is barred from the federal forum. See

Vandor, Inc. v. Militello, 301 F.3d 37, 39 (2d Cir.2002);

Harbours Pointe, 278 F.3d at 706; Gamble, 5 F.3d at 286;

Harris, 790 F.2d at 681. The Williamson County “ripeness”

requirements will never be met in this case, because the

state statute of limitations has run on Pascoag’s inverse

condemnation claim. By failing to bring its state claim

within the statute of limitations period, Pascoag forfeited

its federal claim. Gamble, 5 F.3d at 286; accord Vandor,

301 F.3d at 39. “The state provided a remedy, but plain-

tiffl ] failed to pursue it. [It] cannot obtain jurisdiction in

the federal courts simply by waiting until the statute of

limitation bars the state remedies.” Harris, 790 F.2d at

681.

In Gamble, the plaintiff filed suit in federal court

alleging that she had been denied just compensation by a

zoning plan. Gamble, 5 F.3d at 285. The Seventh Circuit,

citing Williamson County, asked whether she had ex-

hausted her remedies “for obtaining a compensation award

or equivalent relief from the state.” Id. at 286. Among the

options available to the plaintiff under state law was the

App. 15

ability to bring an inverse condemnation suit. Jd. However,

the statute of limitations barred plaintiff from raising that

issue in the state courts. Jd. Analogizing to other situa-

tions where exhaustion of remedies is required, the court

held that the failure to pursue state compensation reme-

dies in a timely fashion forfeited plaintiff’s federal claim

to just compensation. Id.

ee Re ees

Similarly, Pascoag’s failure to bring a timely suit for

compensation under state law has led to the forfeiture of

its federal taking claim. Even making all reasonable

inferences in favor of Pascoag — that a taking claim can

stand when the state acquires land by adverse possession,

that the claim did not accrue until the state assumed

property rights in 1975, and that the Rhode Island statute

of limitations for such a claim is 10 years — Pascoag’s state

claim was time-barred in 1985. “[A] claimant cannot be

permitted to let the time for seeking a state remedy pass

without doing anything to obtain it and then proceed in

federal court on the basis that no state remedies are open.”

Id. Pascoag’s failure to assert a timely state claim has

foreclosed its federal cause of action. “Litigants who

neglect or disdain their state remedies are out of court,

period.” River Park, Inc. v. City of Highland Park, 23 F.3d

164, 165 (7th Cir.1994).

So Nase et his eet SERS

IV. Conclusion

i To sum up, a taking by adverse possession occurred,

1 on Pascoag’s own theory, in 1975 after a ten-year period of

government occupancy or use. At that point, Pascoag had

an obligation to bring a suit in state court for compensa-

tion within the limitations period unless the state remedy

was plainly futile (which in this case it was not); and by

oat ser

Lecaenaseva

;

App. 16

failing to do so it forfeited any federal claim that state

processes were inadequate. Of course, the situation in

1975 may well have been unclear from a legal standpoint,

but for that, Pascoag’s remedy was to bring a lawsuit

within the statutory period. The question of whether or

not the state must pay when it takes land by adverse

possession or prescription will have to wait for another

day. Because Pascoag failed to bring a timely claim in

state court, it forfeited its federal takings claim. The

district court’s decision is affirmed.

Affirmed.

NO i a a a

OO ———— rs

App. 17

217 F.Supp.2d 206

PASCOAG RESERVOIR & DAM, LLC, Plaintiff,

Vv.

The State of RHODE ISLAND, acting by and

through Jan Reitsma, in his capacity as Director

of the Rhode Island Department of Environmental

Management and Sheldon Whitehouse, in his

capacity as Attorney General for the

State of Rhode Island, Defendants.

No. C.A. 01-505L.

United States District Court,

D. Rhode Island.

Aug. 20, 2002.

Barry J. Kusinitz, Providence, RI, for plaintiff.

James R. Lee, Attorney’s Office, Mary E. Kay, R.I.

Department of Environmental Management, Office of

Legal Services, Claire J.V. Richards, Office of the Gover-

nor, Providence, RI, for defendant.

OPINION AND ORDER

LAGUEVUX, Senior District Judge.

This lawsuit is the latest chapter in a contentious

dispute between the State of Rhode Island (“State”)

through the Department of Environmental Management

(“DEM”) and Pascoag Reservoir & Dam, LLC (“Pascoag”).

Plaintiff, Pascoag, claims that the State has engaged in a

taking of its property, and that the United States and

App. 18

Rhode Island Constitutions mandate that compensation be

paid to it for that property.’ The taking of property, Pas-

coag alleges, was the acquisition of a portion of the Reser-

voir bottom by adverse possession and the acquisition of

use of the Reservoir by prescriptive easement. The State

has moved to dismiss the complaint, claiming that, as a

matter of law, when a state acquires property by adverse

possession or prescription that does not constitute a

taking. The State also argues that any lawsuit based on a

constitutional takings argument is barred by the statute of

limitations.

The dispute places this Court at a curious juncture

between property law and constitutional law. In property

law, it is a straightforward proposition that, under certain

conditions, title to property may, by operation of law, be

transferred to another without compensation. In constitu-

tional law, it is a straightforward proposition that the

government cannot take private property without just

compensation. This Court must determine how these two

propositions interact with each other. Although defendant

contends that the two areas of law are “mutually exclu-

sive,” they are not. Any state statute must adhere to the

requirements of the United States Constitution. In this

case, the Court concludes that plaintiff has alleged a

takings claim against the State of Rhode Island. Since the

Court holds that the taking occurred in 1975, plaintiff’s

claim, asserted twenty-six years after the taking, is too

stale to warrant prosecution. Therefore, plaintiff’s federal

takings claim is dismissed. Plaintiff’s remaining state law

* Although the complaint does not so state, the Court treats this

action as though plaintiff brings it pursuant to 42 U.S.C. § 1983.

dnsesascnaniaées biaable —

aie iA ROR TAN TR Nos tga HAE LR 8

App. 19

claims are also dismissed but without prejudice because

this Court declines to exercise supplemental jurisdiction

over those state claims.

ISSUES PRESENTED

This complaint was filed in this Federal District Court

on October 18, 2001. The complaint asserts four claims

against the State. Count I alleges that the State has

violated the Takings Clause of the Fifth and Fourteenth

Amendments to the United States Constitution. Count II

alleges that the State has violated the Takings Clause of

the Rhode Island Constitution. Count III seeks a declara-

tory ruling that the State is responsible for the repair,

maintenance, and upkeep of the Pascoag Reservoir and

dam. Count IV seeks reimbursement for any local taxes

and assessments paid to the Towns of Burrillville and

Glocester, and any local fire districts. With the exception of

Count I, plaintiff’s claims are based on state law. Defen-

dant has moved to dismiss the whole complaint for failure

to state a claim upon which relief can be granted.

JURISDICTION

As plaintiff has alleged a constitutional violation in

Count I, this Court’s jurisdiction is based on the federal

question raised in the complaint. 28 U.S.C. § 1331. The

constitutional violation stems from the Fifth and Four-

teenth Amendments to the U.S. Constitution. 28 U.S.C.

§§ 2201, 2202 provides a form of relief, declaratory judg-

ment, for such violations. Because plaintiff seeks damages

for a violation of a constitutional right, the Court treats

this action as brought pursuant to 42 U.S.C. § 1983. As the

remaining counts are state law claims, this Court has

App. 20

supplemental jurisdiction pursuant to 28 U.S.C. § 1367 to

consider such matters.

STANDARD OF REVIEW FOR RULE 12(b)(6)

MOTION TO DISMISS

In ruling on a motion to dismiss for failure to state a

claim upon which relief can be granted, the Court con-

strues the complaint in the light most favorable to plain-

tiff, taking all well-pleaded allegations as true and giving

plaintiff the benefit of all reasonable inferences.

Fed.R.Civ.P. 12(b)\(6); Correa-Martinez v. Arrillaga-Belendez,

903 F.2d 49, 52 (1st Cir.1990). Because a 12(b)(6) motion

often comes in the early stages of the litigation, dismissal

under Rule 12(b)(6) is appropriate only if “it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.”

Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir.1998)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,

2 L.Ed.2d 80 (1957)).

In a Rule 12(b)(6) motion, the Court generally may

examine only the pleading itself. In a notice pleading

system, the pleading serves to inform defendant of the

claims made against him or her. Langadinos, 199 F.3d at

72-73. The Court need not accept unsupported conclusions

or interpretations of law. Washington Legal Found. v.

Massachusetts Bar Found., 993 F.2d 962, 971 (lst

Cir.1993). If the pleading fails to make out a legal claim

upon which relief can be granted or fails to allege any facts

that would support a legal claim, the pleading is insuffi-

cient and should be dismissed. See Correa-Martinez, 903

F.2d at 52-53.

App. 21

BACKGROUND AND FACTS .

A. Facts as Plaintiff Alleges -

The complaint alleges the following facts. Pascoag is

the owner of record of the Pascoag Reservoir (“Reservoir”).

The Reservoir is located in the Towns of Burrillville and

Glocester, Rhode Island. The Reservoir is a man-made

body of water consisting of approximately 350 acres,

originally created in 1860 by various riparian mill owners

as a source of power for their mills. Plaintiff’s predeces-

sors in title have been the Pascoag Reservoir Association,

the Pascoag Reservoir Corporation, and the Pascoag

Investment Corporation. In 1965, the State constructed a

boat ramp into the Reservoir. In 1995, title to the Reser-

voir in fee simple was conveyed to plaintiff. Intermittently,

between 1987 and 1997 the State unsuccessfully negoti-

ated to buy the Reservoir. In 1997, DEM notified Pascoag

in writing that the State had acquired an interest in the

Reservoir by adverse possession or prescription. DEM then

filed suit in Rhode Island Superior Court to enforce its

claim.

B. Determinations of State Law

On June 20, 2001, the Rhode Island Supreme Court

held that the State had acquired portions of the Reservoir

bottom by adverse possession * and had acquired, on behalf

of the public, a prescriptive easement to use the boat ramp

to obtain access to the Reservoir for recreational purposes.

* The portion of the Reservoir bottom that the State adversely

possessed is the portion that lies under the part of the boat ramp that

extends into the Reservoir.

App. 22

Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826,

838 (R.1.2001)(3-2) (overruling the trial court). The effect

of that decision, and particularly the finding of a public

easement by prescription, is to prevent the drainage or

alteration of the Reservoir by plaintiff and to allow the

public continuous access to the Reservoir for recreational

use. The Supreme Court held that the State had begun to

use the Reservoir property in 1965 and, under the Rhode

Island ten year adverse possession statute, had acquired

title to a portion of the Reservoir plus an easement in

1975. Id.

C. Adverse Possession and Easement by Prescrip-

tion

Adverse possession and prescriptive easements are

creatures of state law, not federal law. Chapter 7 of Title

34 of the Rhode Island General Laws sets forth the statu-

tory definition of adverse possession and prescription.”

Adverse possession is a method of transferring title in fee

* “Conclusive title by peaceful possession under claim of title. —

Where any person or persons, or others from whom he, she or they

derive their title, either by themselves, tenants, or lessees, shall have

been for the space of ten (10) years in the uninterrupted, quiet, peaceful

and actual seisin and possession of any lands, tenements or heredita-

ments for and during that time, claiming the same as his, her or their

proper, sole and rightful estate in fee simple, the actual seisin and

possession shall be allowed to give and make a good and rightful title to

the person or persons, their heirs and assigns forever; and any plaintiff

suing for the recovery of any such lands may rely upon the possession

as a conclusive title thereto, and this chapter being pleaded in bar to

any action that shall be brought for the lands, tenements or heredita-

ments and the actual seisin and possession being duly proved, shall be

allowed to be good, valid and effectual in law for barring the action.”

R.I. Gen. Laws § 34-7-1.

App. 23

simple of a portion of real property. Certain conditions

must be maintained over a period of time set by statute.

R.I. Gen. Laws § 34-7-1. In Rhode Island, to complete a

transfer of title by adverse possession, the claimant’s

possession must be actual, open, notorious, hostile, under

claim of right, continuous, and exclusive. DelSesto uv.

Lewis, 754 A.2d 91, 94-95 (R.I. 2000). The possession must

be over ten years, the statutory period for adverse posses-

sion. R.I. Gen. Laws § 34-7-1. Similarly, prescription is a

method of creating an easement by comparable criteria as

adverse possession. The creation of an easement by pre-

scription is the creation of a right to use and title to use

that cannot be revoked. Greenwood v. Rahill, 122 R.I. 759,

412 A.2d 228, 230 (1980) (“Once the state had acquired a

prescriptive easement ..., no act of plaintiffs could divest

the state of that right since such an easement conveys a

good and rightful title forever.”).

Adverse possession is an ancient English common law

doctrine to clarify title in land. Tiffany Real Property

§ 1133 (38d ed.1975). The defense of adverse possession

acted as a bar to ejectment actions. Although various

forms of adverse possession appeared in English law as

early as 1100 A.D., the current form of adverse possession-

a fixed number of years operating as a statute of limitation

against claims to land-was adopted by the Statute of

James in 1623. Jd. After a certain period of time, claims to

land can no longer be asserted, thus preventing “illegal

claims after the evidence necessary to defeat them has

been lost” and advancing the community’s interest in “the

security of title.” Id. at § 1134. Furthermore, adverse

possession discourages record owners from “sleeping on

their rights” by neglecting to take the appropriate legal

steps to maintain their possession. See id.

App. 24

An easement is a right to use another’s property in a

certain manner that simultaneously acts as a limitation on

that other person’s ability to use his or her property in an

unrestricted manner. II American Law of Property § 8.4

(1952). It is a property right against the subjected land as

well as all other parties. Jd. at § 8.5. It cannot be termi-

nated by the possessor of the land subject to it. Jd. at

§ 8.14. An appurtenat easement is an easement that is tied

to a specific parcel of land and is not a personal right.

Tiffany Real Property § 1193. The easement benefits that

land and the possessor’s use and enjoyment of that land.

Here, the easement is appurtenant to the parcel of land

that was adversely possessed by the State. One can only

acquire a prescriptive right over something that could

otherwise be granted. Therefore, for example, one cannot

acquire by prescription rights to land held in public trust

because such rights can never be granted by the State. Jd.

at § 1192.

Under Rhode Island law, the State may acquire title

by adverse possession or prescription. Reitsma, 774 A.2d

at 838 (state acquires title by adverse possession and

easement by prescription); Greenwood, 412 A.2d at 230

(state acquires easement by prescription). Additionally, the

United States Supreme Court has held that officers of the

United States, sued for trespass, may raise a defense of

lawful title by adverse possession. Stanley v. Schwalby,

147 U.S. 508, 519, 13 S.Ct. 418, 37 L.Ed. 259 (1893).

PRELIMINARY MATTERS

As a preliminary matter, this Court must define the

narrow scope of the legal issue that this Court may

consider. Additionally, the Court must resolve some

App. 25

affirmative defenses alluded to by defendant. Defendant

argues that the doctrine of res judicata bars plaintiff from

pursuing this action because the takings issue and the

statute of limitations issue were determined by the Rhode

Island Supreme Court. At the hearing on this motion,

defendant also argued that the Rooker-Feldman doctrine

prohibits this federal court from reviewing the state court

decision. Plaintiff argues that the takings issue was never

properly before the Rhode Island Supreme Court, and that

any statements made on the takings issue by the Rhode

{sland Supreme Court should be disregarded as dicta. In

addition, as a jurisdictional prerequisite, this Court must

determine if this issue is ripe for a federal court’s consid-

eration.

A. Conclusions of State Law

This Court cannot revisit the conclusion of the Rhode

Island State Supreme Court on an issue of state law. Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82

L.Ed. 1188 (1938) (“Except in matters governed by the

Federal Constitution or by Acts of Congress, the law to be

applied in any case is the law of the State.”). A state

Supreme Court has the final word on what constitutes

adverse possession or easement by prescription. See id.

The precise issue of adverse possession and prescription in

this case has been litigated and determined by the Su-

preme Court of Rhode Island. Reitsma, 774 A.2d at 838.

Principles of res judicata apply. This Court cannot revisit

the Rhode Island Supreme Court’s holding that the State

acquired title in fee simple by adverse possession and an

easement by prescription. This Court can only address the

consequences of the State acquiring title to a piece of land

App. 26

by adverse possession and an easement by prescription.

See Erie R.R. Co., 304 U.S. at 78, 58 S.Ct. 817.

B. Claim Preclusion

The doctrine of res judicata is a bar to a party litigat-

ing anew issues that have already been decided by a court.

Defendant argues that plaintiff is precluded from litigat-

ing the takings claim because it was raised in a prior state

court proceeding. Res judicata is a term that applies to two

types of preclusion, claim preclusion and issue preclusion.

Liu v. Striuli, 36 F.Supp.2d 452, 470-71 (D.R.1.1999).

When a federal court examines whether a state court

decision has a preclusive effect, the federal court must use

the same law that a state court would employ in making

such a determination. Texaco Puerto Rico, Inc. v. Medina,

834 F.2d 242, 245 (1st Cir.1987). Therefore, this Court

must apply state law to determine if res judicata applies.

See id.

Claim preclusion acts as a bar to plaintiff taking a

second bite at the apple through subsequent litigation.

ElGabri v. Lekas, 681 A.2d 271, 276 (R.1.1996) (adopting

Restatement (2d) of Judgments § 24). Claim preclusion

encourages finality and consistency in judicial rulings. The

Restatement sets forth the requirements for claim preclu-

sion: “When a valid and final judgment rendered in an

action extinguishes the plaintiff’s claim pursuant to the

rules of merger or bar, the claim extinguished includes all

rights of the plaintiff to remedies against the defendant

with respect to all or any part of the transaction, or series

of connected transactions, out of which the acticn arose.”

Restatement (2d) of Judgments § 24(1). In this case, the

App. 27

State is seeking to bar plaintiff from relitigating an issue

that it raised as a counterclaim in state court.

Claim preclusion does not apply when a court reserves

a party’s right to maintain a second action, as happens

when a court dismisses a claim without prejudice. “When

any of the following circumstances exists, the general rule

of § 24 does not apply to extinguish the claim, and part or

all of the claim subsists as a possible basis for a second

action by the plaintiff against the defendant: ... (b) The

court in the first action has expressly reserved the plain-

tiff’s right to maintain the second action.” Restatement

(2d) of Judgments § 26(1)(b).‘ Here, the state trial court

dismissed Pascoag’s takings counterclaim without preju-

dice. Reitsma, 774 A.2d at 837. Pascoag notified the state

court that it was preserving the issue for subsequent

action and, thus, avoided the effects of claim preclusion.

See Restatement (2d) on Judgments § 26(1)(b); see also

Lovely v. Laliberte, 498 F.2d 1261, 1264 (1st Cir.1974).

Additionally, there was no final judgment on the

merits as to Pascoag’s takings claim. No court entered a

judgment on the takings claim. See Pure Distributors, Inc.

v. Baker, 285 F.3d 150, 156-57 (1st Cir.2002) (discussing

the finality requirement). Pascoag raised the claim before

the state court, but, as the Rhode Island Supreme Court

* Following this section of the Restatement, the comments elabo-

rate on the notion of a court expressly reserving the right to maintain a

second action. “A determination by the court that its judgment is

‘without prejudice’ (or words to that effect) to a second action on the

omitted part of the claim, expressed in the judgment itself, or in the

findings of fact, conclusions of law, opinion, or similar record, unless

reserved or set aside, should ordinarily be given effect in the second

action.” Restatement (2d) on Judgments § 26(1)(b) cmt. b.

App. 28

noted in Reitsma, Pascoag’s takings claim was dismissed

without prejudice. 774 A.2d at 837. The Rhode Island

Supreme Court does speculate that any takings claim

would be barred by the statute of limitations. Jd. at 838.

Since that issue was not properly before the Court, how-

ever, any dicta on the takings issue is not a final judgment

on the merits. See Pure Distributors, Inc., 285 F.3d at 156-

57. Claim preclusion does not bar this lawsuit.

C. Issue Preclusion

Defendant additionally argues that issue preclusion

prevents Pascoag from revisiting a determination that the

statute of limitations bars plaintiff’s takings claim. The

Rhode Island Supreme Court adopted the following re-

quirements for issue preclusion or collateral estoppel to

apply: “(1) that there must be an identity of issues, (2) that

the prior proceeding resulted in a final judgment on the

merits, and (3) that the party against whom collateral

estoppel is asserted is the same as or is in privity with a

party in the prior proceeding.” State v. Jenkins, 673 A.2d

1094, 1096 (R.I.1996). For an identity of issues to exist,

“(1) the issue sought to be precluded must be identical to

the issue determined in the earlier proceeding, (2) the

issue must actually have been litigated in the prior pro-

ceeding, and (3) the issue must necessarily have been

decided.” E.W. Audet & Sons, Inc. v. Firemen’s Fund Ins.

Co., 635 A.2d 1181, 1186 (R.1.1994).

As discussed supra, the statements made by the

Rhode Island Supreme Court about the takings claim,

including any statements concerning the statute of limita-

tions, are not part of a final judgment and are not essen-

tial to that Court’s judgment as the matter was not

nae een,

App. 29

properly before that Court. Therefore, the issue was not

actually litigated nor was it decided. See id. Issue preclu-

sion does not bar plaintiff’s takings claim in this case.”

D. Rooker-Feldman Doctrine

The Rooker-Feldman doctrine is a basic principle of

subject matter jurisdiction that federal district courts

should not serve as appellate courts to state courts. See,

e.g., Wilson v. Shumway, 264 F.3d 120, 123-26 (lst

Cir.2001) (discussing the Rooker Feldman Doctrine). The

only appropriate federal appellate court to a state court is

the United States Supreme Court. Id. at 123; see also

Keating v. Rhode Island, 785 FSupp. 1094, 1098

(D.R.1.1992). Therefore, a federal district court should not

review issues already determined by a state court. Even if

the claim was not presented to a state court, the Rooker

Feldman doctrine “forecloses lower federal court jurisdic-

tion over claims that are ‘inextricably intertwined’ with

the claims adjudicated in a state court.” Picard v. Members

of the Employee Ret. Bd., 275 F.3d 139, 145 (1st Cir.2001)

(quoting Sheehan v. Marr, 207 F.3d 35, 39-40 (1st

Cir.2000)). “Inextricably intertwined” is defined as a

situation where the federal claim can only succeed if the

state court claim fails. Jd. In other words, the federal court

* This Court notes that Rhode Island Supreme Court decisions on

collateral estoppel or issue preclusion only discuss issue preclusion as it

relates to questions of fact, not questions of law. See, e.g., Jenkins, 673

A.2d at 1096; Audet 635 A.2d at 1186. The Restatement (2d) of Judg-

ments, on the other hand, discusses issue preclusion in the context of

both issues of fact and law. Restatement (2d) of Judgments § 27. The

applicable statute of limitations period is, of course, a question of law.

App. 30

would have to reverse the state court for the federal claim

to prevail. Jd.

Here, the Rooker Feldman doctrine is not a bar to this

litigation. See id. For the takings claim to succeed it is not

necessary to reverse any part of the state court’s decision.

See id. It is precisely the issue of whether adverse posses-

sion or prescription constitutes a taking that Pascoag

seeks to litigate here. If the state court’s decision on the

adverse possession and easement by prescription issue

were to be reversed, plaintiff’s takings claim could not be

before this Court. See id. Plaintiff would be in possession

of all of the property in question. The two claims, there-

fore, are not inextricably intertwined, and the Rooker-

Feldman doctrine does not apply. See id. Furthermore, as

the Rhode Island courts did not fully adjudicate and

determine the question, the United States Supreme Court

would not be able to review the decision made in Reitsma

because that issue would not be ripe for Supreme Court

review. See, e.g., Yee v. City of Escondido, 503 U.S. 519,

537-38, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (declining

to review a regulatory takings claim for lack of ripeness).

E. Ripeness Doctrine

In the State’s unwavering determination to argue that

plaintiff’s claims are stale or that the dispute has already

been decided, the State ignores the argument that the

claim may be premature. The United States Supreme

Court has set forth certain ripeness requirements for a

takings claim to be brought in federal court. See William-

son County Reg’l Planning Comm’n v. Hamilton Bank, 473

U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

App. 31

If a case is not “ripe”, then this Court generally lacks

jurisdiction over the matter. Faerber v. City of Newport, 51

F.Supp.2d 115, 124 (D.R.1.1999). If the dispute is not ripe,

then the Court would be engaged in abstract disagree-

ments over matters that “may not occur as anticipated or

may not occur at all.” Jd. (quoting Riva v. Massachusetts,

61 F.3d 1003, 1009 (1st Cir.1995)). Thus, the Court would

be rendering a mere advisory opinion. Such advisory

opinions are prohibited by Article III of the United States

Constitution which requires federal courts to hear actual

cases and controversies. Ernst & Young v. Depositors Econ.

Prot. Corp., 45 F.3d 530, 535 (1st Cir.1995). Because

ripeness is part of the jurisdictional prerequisite for

review, this Court is compelled to discuss the ripeness

doctrine as it pertains to the Takings Clause of the Consti-

tution despite the fact that defendant did not raise or brief

the issue. See Fed.R.Civ.P. 12(h)(3) (Court must dismiss

action sua sponte for lack of subject matter jurisdiction).

Plaintiff did, however, make an anticipatory argument in

its objection to the motion to dismiss.

In Williamson, the Supreme Court set forth two

requirements before a takings claim is ripe for federal

court review. 473 U.S. at 186, 105 S.Ct. 3108. First, a

party must obtain a final decision regarding the property

interest. Id. Second, a party must utilize the state proce-

dures for obtaining just compensation. Jd. If those two

requirements are not met, the takings claim is not ripe for

review. Id. The first prong of the Williamson ripeness test

is satisfied. The Rhode Island Supreme Court issued a

final decision regarding the property right. Reitsma, 774

-A.2d at 838. The second prong of the test, whether the

state procedures for compensation have been utilized, is

not as straightforward. See Williamson, 473 U.S. at 194,

App. 32

105 S.Ct. 3108. The state procedures must be utilized

because the Constitution does not prohibit the state from

taking property, it only prohibits the state from taking

property and not paying just compensation. Jd. at 194-95,

105 S.Ct. 3108.

If compensation is paid, even at a date after the

taking of the property, then there is no violation of the

Constitution and no dispute for the Court to resolve. See

id. at 195, 105 S.Ct. 3108. If the state lacks procedures, or

its procedures are inadequate, then the takings claim

would be ripe for review in federal court. See id. at 197,

105 S.Ct. 3108; McKenzie v. City of White Hall, 112 F.3d

313, 317 (8th Cir.1997) (noting that plaintiff had failed to

establish that a state inverse condemnation action would

be futile). State procedures would be inadequate when the

state’s highest court denies that compensation could be

available for the government’s action that affected a

property interest. See First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 312 n. 6,

107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).

The situation presented here is unlike the scenario

this Court faced in Q.C. Const. Co. Inc. v. Verrengia, 700

F.Supp. 86, 90 (D.R.I.1988). There, plaintiff had failed to

establish that the state supreme court would refuse to

acknowledge that inverse condemnation could be

determined to be a taking and provide compensation. Id.

This Court noted that although the Rhode Island Supreme

Court had not determined that a person could seek

compensation for an inverse condemnation claim under

state law, that Court had similarly not ruled that such a

claim for compensation would not be allowed. Jd. The

Court distinguished that situation from the facts

presented in First English where “plaintiff had been

App. 33

effectively denied compensation by the highest state

court.” Jd. Because plaintiffs there had not attempted to

seek compensation in state court, the claim was

premature. Id. at 91; see also Deniz v. Municipality of

Guaynabo, 285 F.3d 142, 147 (1st Cir.2002) (dismissing

takings claim filed in federal court on ripeness grounds

when question of whether compensation was available had

not been decided by the state’s highest court).

Plaintiff argues that if an effort to obtain compensa-

tion from the State would be futile or otherwise unavail-

able, the ripeness requirement is satisfied. Plaintiff

contends that because the State did not take property

until the Rhode Island Supreme Court issued its ruling, it

could not have sought compensation prior to that ruling.

Additionally, plaintiff contends that because that ruling

contains dicta that the State engaged in no taking of

property, any effort to seek compensation under state

procedures would be futile. Because further proceedings at

the state level would be futile, plaintiff argues, the claim is

ripe for review here in federal court.

Although plaintiff initially sought compensation in the

Rhode Island state court system, the claim was dismissed

without prejudice. Reitsma, 774 A.2d at 837. Subsequent

to that dismissal, the Rhode Island Supreme Court inti-

mated that when a state acquires property by adverse

possession or an easement by prescription, the record

owner has no cognizable takings claim. Jd. at 837-38

(noting that even if a takings claim existed here, it would

be time-barred). Thus, the Rhode Island Supreme Court

has effectively barred any avenue for plaintiff to secure

compensation in state court. See id. If the state has no

procedures by which a party can seek compensation as a

post-depravation remedy, the second prong of Williamson

App. 34

is satisfied and the case is ripe for review by a federal

court. See 473 U.S. at 197, 105 S.Ct. 3108; see also City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687, 721, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (“A

federal court, moreover, cannot entertain a takings claim

under § 1983 unless or until the complaining landowner

has been denied an adequate post-deprivation remedy.”).

THE FEDERAL TAKINGS CLAIM

Plaintiff alleges that the State, when it acquired an

easement by prescription and a portion of the Reservoir

bottom by adverse possession, violated plaintiff’s rights

under the Takings Clause of the Fifth and Fourteenth

amendments of the United States Constitution. Defendant

moves to dismiss arguing that, as a matter of law, when

the State acquires title by adverse possession and/or an

easement by prescription, the State is not subject to the

Takings Clause.

Therefore, the primary question before this Court is

whether the acquisition of property interests by a state

through adverse possession and prescription is subject to

the Takings Clause of the United States Constitution. No

federal court has addressed this question before. Several

state courts, however, have discussed this issue. This

Court notes at the onset that plaintiff is not challenging

the State’s ability to acquire title to property by adverse

possession or prescription. As a matter of state law, the

Rhode Island Supreme Court has determined that the

state may acquire title to property in this manner.

Reitsma, 774 A.2d at 838. This Court must only determine

if just compensation is payable. As this is a motion to

dismiss at the preliminary stages of litigation, the Court

App. 35

can only determine if plaintiff has alleged a sufficient

takings claim in its complaint to warrant further proceed-

ings.

A. Federal Takings Clause

The Fifth Amendment of the Constitution states that

“private property shall not be taken for public use, without

just compensation.” U.S. Const. amend. V. The Fifth

Amendment applies to the Federal Government. The

Fourteenth Amendment, which applies to the states, does

not contain the same Takings Clause; the Due Process

Clause therein differs in that it does not mention just

compensation. U.S. Const. amend. XIV. Nevertheless, the

Takings Clause of the Fifth Amendment has been incorpo-

rated into the Fourteenth Amendment. Chicago, B & Q.

R.R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 S.Ct.

581, 41 L.Ed. 979 (1897). Therefore, the Takings Clause

via incorporation applies to the states. See id.

The Takings Clause generally has been held to apply

to two types of governmental action: the taking of property

by the government’s eminent domain power and the taking

of property by inverse condemnation. The power of emi-

nent domain is an inherent sovereign power. See Tiffany

Real Property § 1252. Eminent domain allows the gov-

ernment to take private property, for the benefit of the

public, when compensation is paid. Jd. Inverse condemna-

tion occurs when government regulation, in effect, con-

demns some or all of the use of the property, diminishing

the value to its owners to such an extent that it is as if the

government had condemned the property. As Justice

Oliver Wendell Holmes wrote eighty years ago in a semi-

nal takings case: “The general rule at least is, that while

App. 36

property may be regulated to a certain extent, if regulation

goes too far it will be recognized as a taking.” Pennsyl-

vania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158,

67 L.Ed. 322 (1922). Inverse condemnation thus leads to

the de facto taking by eminent domain through the state’s

power to regulate, whereas a taking by the eminent

domain power is an explicit use of the sovereign power. See

City of Monterey, 526 U.S. at 734-35, 119 S.Ct. 1624

(Souter J., concurring in part and dissenting in part)

(noting that “the ultimate issue [of compensation] is

identical in both direct and inverse condemnation ac-

tions.”).

1. Elements of a Takings Claim

In a federal Takings Clause analysis, plaintiff must

establish that property was taken by the government for

public use without just compensation. U.S. Const. amend.

V. The Fifth Amendment does not mandate that govern-

ment cannot interfere with property rights, rather it

mandates that the government must provide just compen-

sation when an “otherwise proper interference amount(s]

to a taking.” First English, 482 U.S. at 315, 107 S.Ct.

2378. Thus, in an inverse condemnation case, the statute

or regulation at issue is not invalidated, but the remedy is,

in some situations, that compensation must be paid by the

government to the property owner. See id. Thus, it is the

Fifth Amendment that provides the remedy for an inter-

ference with property rights that rises to the level of a

taking. See id. at 314-16 & n. 9, 107 S.Ct. 2378. The

government does have the option, once a taking is judi-

cially determined, to cease interfering with the property

and pay compensation only for a “temporary” taking, but

App. 37

not for any subsequent “permanent” taking. See id. at 318,

107 S.Ct. 2378.

Many of the most complicated taking issues revolve

around the concept of what the property interest is that

was taken. Here, the property interest is straightforward.

The property interest is the ownership of real property in

fee simple and the ownership of an easement over an-

other’s property. Reitsma, 774 A.2d at 838. These are both

classic property interests in land. This is not a case where

government regulation leaves the property in the hands of

the record owner, but the property has been so diminished

by governmental regulation that there was a de facto

taking of property. See Penn Central Transp. Co. v. New

York City, 438 U.S. 104, 124-27, 98 S.Ct. 2646, 57 L.Ed.2d

631 (1978).

For a takings claim to be prosecuted, the government

must have taken the property interest. Here, by operation

of law, title to these property interests was transferred to

the State from a private entity. Reitsma, 774 A.2d at 838.

The State has acquired title to the land in fee simple. The

State has also acquired title to an easement by prescrip-

tion.

The third element of a takings claim is that the taking

must be for a public use. The public use requirement is

generally viewed as a restriction on the government’s

eminent domain power. Hawaii Hous. Auth. v. Midkiff,

467 U.S. 229, 239-42, 104 S.Ct. 2321, 81 L.Ed.2d 186

(1984) (discussing the public use requirement). The

gcoverz.ment cannot use that power unless its use is for the

benefit of the public. Id. at 248, 104 S.Ct. 2321 (defining

public use, however, as reaching to the full extent of

the state’s police power). Here, the State has taken the

App. 38

property interests specifically on behalf of the public for

public use. This fact distinguishes this case from others

where by operation of law title to land is transferred from

one private entity to another for the benefit of the other.

In this case, title has been transferred from a private

entity to the State for the benefit of the public. The State

is thus acquiring title expressly for the benefit of the

public. The Rhode Island Supreme Court explicitly stated

that was how the State was able to adversely possess the

property and acquire an easement over the Reservoir.

Reitsma, 774 A.2d at 838.

2. United States Supreme Court Takings

Clause Decisions

Over the last twenty years, the United States Su-

preme Court has addressed governmental takings in great

detail, developing a map for this Court to follow. The

Supreme Court recognized that there are two types of per

se takings where compensation is mandated. The first type

is where governmental action has resulted in a permanent

physical occupation of the property. Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 441, 102 S.Ct. 3164,

73 L.Ed.2d 868 (1982). The second type of per se taking

occurs when governmental regulation denies the owner of

virtually all economically beneficial use of the property.

Lucas v. South Carolina Coastal Council, 505 U.S. 1003,

1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In each of

these instances, just compensation is required. It is of

little consequence that the governmental invasion is small

or that the public purpose served is great. Even where

there is no per se taking, there may still be a regulatory

taking, but the Court must engage in an ad hoc factual

App. 39

inquiry to determine if just compensation is due. Penn

Central, 438 U.S. at 124, 98 S.Ct. 2646.

Although the government may have admirable goals

of land use regulation, the government’s power to advance

these goals is subject to the limits imposed by the Takings

Clause. See Dolan v. City of Tigard, 512 U.S. 374, 396, 114

S.Ct, 2309, 129 L.Ed.2d 304 (1994). These per se taking

rules established by the Supreme Court form an outer

limit to the government’s ability to effectuate public policy

without compensation. See id. The per se rules serve “to

bar Government from forcing some people alone to bear

public burdens which, in all fairness and justice, should be

borne by the public as a whole.” Nollan v. California

Coastal Comm'n, 483 U.S. 825, 835 n. 4, 107 S.Ct. 3141, 97

L.Ed.2d 677 (1987) (quoting Armstrong v. United States,

364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)).

Additionally, these limitations on the exercise of govern-

mental power prevent a state from “sidestepp[ing] the

Takings Clause by disavowing traditional property inter-

ests long recognized under state law.” Phillips v. Washing-

ton Legal Found., 524 U.S. 156, 157, 118 S.Ct. 1925, 141

L.Ed.2d 174 (1998).

A permanent physical occupation does not merely

restrict the use of property, but results in the “practical

ouster of his possession.” Loretto, 458 U.S. at 428, 102

S.Ct. 3164 (quoting Northern Transp. Co. v. Chicago, 99

U.S. 635, 642, 25 L.Ed. 336 (1878)). It does not matter that

the occupation may be small or that the occupation does

not “seriously interfere with the landowner’s use of the

rest of his land.” Id. at 430, 102 S.Ct. 3164. In Loretto, the

Supreme Court cited cases where the Court had found

that a permanent physical occupation was the equivalent

of a governmental taking of ownership to the property. See

ia al

App. 40

e.g., id. at 430, 102 S.Ct. 3164 (“It would be as complete as

if the United States had entered upon the surface of the

land and taken exclusive possession of it.”) (quoting

United States v. Causby, 328 U.S. 256, 261, 66 S.Ct. 1062,

90 L.Ed. 1206 (1946)); id. at 431, 102 S.Ct. 3164

(“[B]ecause there had been ‘an actual taking of possession

and control,’ the taking was as clear as if the Government

held full title and ownership.”) (quoting United States uv.

Pewee Coal Co., 341 U.S. 114, 116, 71 S.Ct. 670, 95 L.Ed.

809 (1951)); accord Palazzolo v. Rhode Island, 533 U.S.

606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (“The

clearest sort of taking occurs when the government en-

croaches upon or occupies private land for its own pro-

posed use.”).

The Supreme Court continued its explication of the

nature of a permanent physical occupation by discussing

how such an occupation interferes with the property rights

traditionally associated with ownership of real property.

Loretto, 458 U.S. at 435-36, 102 S.Ct. 3164. The Court

noted that, in the case of a permanent physical occupation,

“the government does not simply take a single ‘strand’

from the ‘bundle’ of the property rights: it chops through

the bundle, taking a slice of every strand.” Id. at 435, 102

S.Ct. 3164. The rights at issue are the rights to possess,

use, and dispose of property. Jd. The owner is denied the

power to exclude others from the property. Jd. “The power

to exclude has traditionally been considered one of the

most treasured strands in an owner’s bundle of property

rights.” Id. (citing Kaiser Aetna v. United States, 444 U.S.

164, 179-80, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979)). In

Kaiser Aetna, the Court held that a navigational servitude

that gave access to the public to a private pond was a

constitutional taking that required just compensation. 444

App. 41

U.S. at 179-80, 100 S.Ct. 383 (“In this case, we hold that

the ‘right to exclude,’ so universally held to be a funda-

mental element of the property right, falls within this

category of interests that the Government cannot take

without compensation.”). Related to the power to exclude,

a permanent physical occupation denies the owner the

power to control the use of the property. Loretto, 458 U.S.

at 436, 102 S.Ct. 3164. Additionally, the occupation effec-

tively strips from the owner the power to dispose of the

property because it will “empty the right of any value,

since the purchaser will also be unable to make any use of

the property.” Jd. Finally, the Court stated that when the

action of the government allows a stranger to invade

directly and occupy the property, there is a “special kind of

injury.” Id.

In Nollan, the United States Supreme Court ruled

that a public easement was a permanent physical occupa-

tion for the purposes of the per se taking rule of Loretto.

483 U.S. at 831-32, 107 S.Ct. 3141. The Court stated that

a taking occurs “for the purposes of that rule, where

individuals are given a permanent and continuous right to

pass to and fro, so that the real property may continuously

be traversed, even though no particular individual is

permitted to station himself permanently upon the prem-

ises.” Id. at 832, 107 S.Ct. 3141; see also Kaiser Aetna, 444

U.S. at 180, 100 S.Ct. 383 (“And even if the Government

physically invades only an easement in property, it must

nonetheless pay just compensation.”); but see PruneYard

Shopping Center v. Robins, 447 U.S. 74, 82-85, 100 S.Ct.

2035, 64 L.Ed.2d 741 (1980) (concluding that the right to

exclude students collecting signatures for petitions was

not essential to the property right of a shopping mall when

App. 42

it could restrict the activity with reasonable time, place,

and manner regulations).

The other per se taking occurs when governmental

action denies the property owner of all economically

beneficial use. See Lucas, 505 U.S. at 1015, 112 S.Ct. 2886.

In Lucas, the Supreme Court offered a rationale for this

per se rule: “the heightened risk that private property is

being pressed into some form of public service under the

guise of mitigating serious public harm.” Jd. at 1018, 112

S.Ct. 2886. The Court explained that where all economi-

cally beneficial use of land is denied, the state can only

deny compensation when the interests that the state

proscribes were never part of the owner’s title. Jd. at 1027,

112 S.Ct. 2886. In U.S. Supreme Court parlance, this

means that if the state action is part of the state’s back-

ground principles of property law and nuisance law, no

compensation is due. Jd. at 1029, 112 S.Ct. 2886 (“Any

limitation so severe cannot be newly legislated or decreed

(without compensation) but must inhere in the title

itself.”).

Lucas contains little specific guidance on what sup-

ports these background principles of law. The Court stated

that “[a] law or decree with such an effect must, in other

words, do no more than duplicate the result that could

have been achieved in the courts-by adjacent landowners

(or other uniquely affected persons) under the State’s law

of private nuisance, or by the State under its complemen-

tary power to abate nuisances that affect the public

generally, or otherwise.” Jd. The Court gave a few exam-

ples. When the state takes property by necessity to stop a

fire, no compensation is due. Jd. at 1029 n. 16, 112 S.Ct.

2886. When the state denies a permit to fill in a lake-bed

that would have the effect of flooding others’ land, no

ee Se ay ee Se ee Stew

App. 43

compensation is due. Jd. at 1029, 112 S.Ct. 2886. When the

state orders a nuclear plant to cease operations because it

is situated on an earthquake fault, no compensation is

due. Id. These, however, are all examples of nuisance and

not other background principles of property law. With

respect to property law, the Court cautioned however, that

the state may not simply recast its action as a background

principle of state law. Jd. at 1031, 112 S.Ct. 2886 (“State,

by ipse dixit, may not transform private property into

public property without compensation.”) (quoting Webb’s

Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164,

101 S.Ct. 446, 66 L.Ed.2d 358 (1980)). Instead, the state

carries the burden of proving that the background princi-

ples allow a certain result. Jd.

In a subsequent decision, the Court has explained

that a background principle of property law is not simply

any law or regulation that was in effect prior to an owner

acquiring title. Palazzolo, 533 U.S. at 629-30, 121 S.Ct.

2448. A background principle must be more than a preex-

isting regulation. See id. Some courts have ruled that the

law of public trust and the law of custom are background

principles because land held in public trust or by custom

was never part of a landowner’s title. See, e.g., Stevens v.

City of Cannon Beach, 317 Or. 131, 854 P.2d 449, 456

(Or.1993) (holding that by custom the public had always

held the dry sand beach in fee simple absolute and that

area was never part of the landowner’s title); Orion Corp.

v. State, 109 Wash.2d 621, 747 P.2d 1062, 1073 (1987)

(holding that state’s shoreline was held in public trust and

any restrictions on use mandated by the public trust

doctrine could not be a taking).

App. 44

B. Analysis

Here, the State has acquired title to a portion of the

bottom of the Reservoir and an easement by prescription

on behalf of the public to use the Reservoir for recreational

purposes. The State did not act through its eminent

domain power. The State, instead, utilized the adverse

possession statute to acquire these property rights. Thus,

this claim is a species of inverse condemnation. The

statute, as applied, has condemned the property as if it

had been taken by eminent domain.

When the State acquires title in fee simple to land,

without compensation, it engages in a permanent physical

occupation of property of the highest order. See Loretto,

458 U.S. at 427-28, 102 S.Ct. 3164. The State has perma-

nent possession of the land, resulting in the ouster of the

record owner. See id. It has acquired all of the sticks

contained in the bundle of property rights because it owns

the land. See id. at 435, 102 S.Ct. 3164. The private

individual has no property rights. See id. When the State

acquires an easement on behalf of the public that termi-

nates a property owner’s right to exclude others from his

or her land and allows any member of the public to enter

and exit the property without restriction, the State has

engaged in a permanent physical occupation. See Nollan,

483 U.S. at 831-32, 107 S.Ct. 3141. Both are per se viola-

tions of the takings clause. See id.; Loretto, 458 U.S. at

441, 102 S.Ct. 3164. Therefore, plaintiff has alleged a

sufficient takings claim in the complaint in this case.

This Court also notes that because the State acquired

title to a portion of the reservoir bottom, the State has

wiped out all of plaintiff’s economically beneficial use of

that property. See Lucas, 505 U.S. at 1015, 112 S.Ct. 2886.

App. 45

Furthermore, the Court notes that as the State has placed

the entire reservoir under a public easement, the State

may well have wiped out all economically beneficial use of

the Reservoir. See id.; see also Kaiser Aetna, 444 U.S. at

180, 100 S.Ct. 383 (“This is not a case in which the Gov-

ernment is exercising its regulatory power in a manner

that will cause an insubstantial devaluation of petitioner’s

private property; rather, the imposition of the navigational

servitude in this context will result in an actual physical

invasion of the privately owned marina.”). The State has

impressed a private individual into service to provide the

public unrestricted use of private property. See, e.g., Lucas,

505 U.S. at 1018, 112 S.Ct. 2886. Plaintiff has alleged

sufficient facts to make out a takings claim.

C. Defendant’s Arguments

Defendant offers a number of arguments as to why the

State’s actions should not amount to a taking. The Court

addresses each argument in turn.

1. Adverse Possession and the Takings Clause

Defendant argues that no compensation is due when

property is acquired by adverse possession. The crux of

defendant’s position is that adverse possession and com-

pensation are mutually exclusive concepts-compensation is

never paid when a private party adversely possesses

property. Defendant is making the tautological argument

that adverse possession by the state cannot be a taking

because the state has adversely possessed property. In this

factual situation, this Court disagrees. Adverse possession

is bar to trespass and ejection proceedings. See, e.g., R.I.

Gen. Laws }34-7-1. Here the government has taken

App. 46

possession of the property, and the government’s actions

are always subject to the Takings Clause of the Constitu-

tion. U.S. Const. art. VI, §2 (the Supremacy Clause).

Plaintiff is not challenging the State’s title to the property,

rather plaintiff is seeking the remedy of just compensa-

tion. It does not matter how the State takes property, only

whether the Constitution mandates that the State pay

compensation. First English, 482 U.S. at 314-15, 107 S.Ct.

2378.

Defendant cites several state court cases for the

proposition that when a state acquires property by adverse

possession or an easement by prescription there is no

taking. This Court presents a brief summary of those state

court decisions cited by defendant and other decisions

found by the Court. Their persuasive value to this Court,

however, is limited for two reasons. First, although state

courts are equally competent to decide questions of federal

law, a federal court is not bound by a state court’s deter-

mination on an issue of federal law. Second, these state

courts, for the most part, were not interpreting the United

States Constitution. They were interpreting their own

state constitutions. The takings clauses in those state

constitutions do not mirror the exact text of the United

States Constitution, indeed some are significantly more

detailed.

In 1985, the Ohio Supreme Court was faced with a

claim that the City of Columbus had encroached on a

private landowner’s property. State, ex rel. AA.A. Invest-

ments v. City of Columbus, 17 Ohio St.3d 151, 478 N.E.2d

773 (1985) (per curiam). Specifically, two streets had been

constructed in such a manner that they occupied a small

portion of property of the private landowner. Jd. at 774.

The Ohio Supreme Court only addressed the takings issue

App. 47

under the Ohio Constitution that contains significantly

different wording than the federal Constitution. Jd. The

Court concluded that adverse possession is not a taking

because the government has not taken property, rather the

former owner has lost any claim of ownership over the

property. Id. at 775.

In 1993, the Alaska Supreme Court determined that a

municipality’ prescriptive easement did not entitle a

property owner to just compensation under the Alaska and

United States Constitutions. Weidner v. State, 860 P2d

1205, 1212 (Alaska 1993). The Court reasoned that after

the prescriptive period had ended, any claim for just

compensation was similarly extinguished. Jd. The statute

of limitations for prescription barred any takings claim, it

ruled. Id.

The Maine Supreme Court recently followed the

Alaska Court’s reasoning and held that there was no claim

for just compensation in a case where a municipality had

acquired a prescriptive easement. Stickney v. City of Saco,

770 A.2d 592, 603 (Me.2001). The Court agreed that under

the state constitution the private landowner must bring an

action for inverse condemnation prior to the expiration of

the prescriptive period. Jd. The decisions of other state

courts reflect similar reasoning. See Board of County

Comm’rs v. Flickinger, 687 P.2d 975, 983-85 (Colo.1984) (en

banc) (concluding that adverse possession of a road,

pursuant to state statute, was not a taking); Common-

wealth v. Stephens, 407 S.W.2d 711, 712 (Ky.1966) (reject-

ing the lower court’s conclusion that the state constitution

requires compensation in the case of adverse possession

and holding that “since the original owner has lost his

claim of title, the state is no longer taking his property.”);

Rogers v. Marlin, 754 So.2d 1267, 1273 (Miss.Ct.App.1999)

App. 48

(“[D]amages are never a part of adverse possession, which

is what a prescriptive easement is. Unlike eminent domain

or a petition for a public way across the property of an-

other without the benefit of the law of dominant/servient

tenements, the original owner of the property over which

the prescriptive easement in question runs has long since

forfeited his right to demand payment for the easement

over his property.”); Dunnick v. Stockgrowers Bank of

Marmouth, 191 Neb. 370, 215 N.W.2d 93, 96 (1974) (con-

cluding that the Takings Clause does not bar the state

from acquiring property by adverse possession, especially

where it does so on behalf of the public, and the owner

must exercise his or her rights within the statutory

possession period); City of Ashland v. Hardesty, 23 Or.App.

523, 543 P.2d 41, 43 (1975) (holding that the Takings

Clause in the Oregon Constitution does not prohibit

adverse possession by the State); Petersen v. Port of

Seattle, 94 Wash.2d 479, 618 P.2d 67, 70 (1980) (“A 10-year

period of time, however, together with the requisite ele-

ments of adverse possession would, in a case such as this,

have vested the Port with a prescriptive avigation right in

plaintiffs’ property. That avigation easement, if prescrip-

tively acquired, would not be com>ensable.”).

In many of the state decisiors on this issue, the state

courts held that the party was precluded from bringing the

takings claim after the statutory period of adverse posses-

sion had been completed although the party could have

brought a takings claim prior to the end of that statutory

period. See, e.g., Weidner, 860 P.2d at 1212. This is a

misstatement of what is transpiring in adverse possession

and prescription cases. The property interest is not ac-

quired by the government until the adverse possession and

prescriptive period has been completed. A plaintiff could

App. 49

not bring a takings claim until the possession or prescrip-

tion period had been completed because, until that time,

the government had not taken a property interest. In the

case of adverse possession, prior to the end of the statutory

period, the adverse possessor has no rights to the property.

See, e.g., R.I. Gen. Laws § 34-7-1. A record owner could

bring an action of trespass and ejectment. Under the

trespass claim, the record owner could seek damages for

the trespass. Under the ejectment claim, the record owner

could stop the adverse possession clock from running and

enjoin the putative adverse possessor from continued

possession of the property. As the putative adverse posses-

sor had no property rights, however, the record owner

could not make out a takings claim.

Similarly in the case of a prescriptive easement, the

record owner could bring an action for trespass and ejec-

tion. There is no property interest, yet, that has been

taken away from the record owner. Therefore, there has

been no taking prior to the completion of the statutory

period. In this case, because the public was using the

Reservoir, and not the State, plaintiff had no claim against

the State of any kind prior to the end of the prescriptive

period. Plaintiff could only sue private individuals for

trespass. As there was no state law that mandated that

plaintiff allow access to these individuals, prior to the end

of the prescriptive period, there was no state action and no

takings claim could have been alleged.

If the takings clock were to stop at the moment the

adverse possession clock has run, then the record owner as

against the government is in a curious Catch 22 situation.

He or she had no takings claim prior to the completion of

the adverse possession prescription period, but would be

similarly barred from having a takings claim after the

App. 50

period was completed. This Court does not sanction this

bonanza for the government at the intersection of property

law and constitutional law.

Many of these state court cases (as defendant argues)

rely on the Supreme Court decision, Texaco v. Short, 454

U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982), for the

proposition that the State can adversely possess property

and that such possession is not subject to the Takings

Clause. Texaco v. Short, however, has nothing to do with

adverse possession or prescription by the state. In Texaco

v. Short, the Supreme Court was faced with several

constitutional challenges to the State of Indiana’s Mineral

Lapse Act. The Act provided “that a severed mineral

interest that is not used for a period of 20 years automati-

cally lapses and reverts to the current surface owner of the

property, unless the mineral owner files a statement of

claim in the local county recorder’s office.” 454 U.S. at 518,

102 S.Ct. 781. The Supreme Court held that such a lapse

was not subject to the Takings Clause. Jd. at 530, 102

S.Ct. 781. The Court reasoned that this property may be

abandoned, that the owner has no right to compensation,

and that it is “the owner’s failure to make any use of the

property-and not the action of the State-that causes the

lapse of the property right.” Id.

Texaco v. Short, despite its broad language, is not

controlling here. In Texaco v. Short, the statute allowed

the extinguishment of a property right based on abandon-

ment. Id. at 518-20, 102 S.Ct. 781. Land cannot be aban-

doned. Upon extinguishment, any mineral rights reverted

back to the land from which they had been severed. Id.

This reversion is between two private individuals, much

like the typical situation of adverse possession, where the

App. 51

government would not be required to provide compensa-

tion. See id. Here, the State assumes title, without com-

pensation, allowing the public to permanently physically

occupy the record owner’s land to effectuate a public

easement on a man-made reservoir, eliminating the

owner’s right to exclude people from its property. Texaco v.

Short does not, as a matter of law, bar plaintiff’s takings

claim.

The Takings Clause was meant to protect private

individuals from excessive government intrusion on their

property rights. See, e.g., Nollan, 483 U.S. at 835 n. 6, 107

S.Ct. 3141. Simply because an area of law may be ancient

and well settled does not mean that it trumps the man-

dates of the United States Constitution. The Fifth

Amendment contains a limitation on governmental power

vis a vis private property. U.S. Const. Amend. V. This

Court recalls the words of Justice Holmes: “We are in

danger of forgetting that a strong public desire to improve

the public condition is not enough to warrant achieving

the desire by a shorter cut than the constitutional way of

paying for the change.” Pennsylvania Coal Co., 260 U.S. at

416, 43 S.Ct. 158; see also Nollan, 483 U.S. at 841-42, 107

S.Ct. 3141 (“California is free to advance its ‘comprehen-

sive program,’ if it wishes, by using its power of eminent

domain for this ‘public purpose,’ see U.S. Const. Amdt. 5;

but if it wants an easement across the Nollan’s property, it

must pay for it.”).

The government is not like another private individual,

and the Constitution through the Takings Clause recog-

nizes that distinction. The government has the power of

eminent domain. The government has the power to regu-

late land use. Had the government taken the property by

eminent domain, it would have been a taking and just

App. 52

compensation would have been due to the owner. See

Nollan, 483 U.S. at 831, 107 S.Ct. 3141. Had the govern-

ment created an easement over the property by legislative

action, just compensation would have been due. See id. at

834-37, 107 S.Ct. 3141 (reasoning that since a requirement

of an “uncompensated conveyance of the easement out-

right would violate the Fourteenth Amendment,” the

conveyance of an easement as a condition for a permit also

requires compensation unless there is an essential nexus

between the legitimate state interest and the condition);

see also Opinion of the Justices (Public Use of Coastal

Beaches), 189 N.H.82, 649 A.2d 604, 611 (1994) (“Because

the bill provides no compensation for the landowners

whose property may be burdened by the general recrea-

tional easement established for public use, it violates the

prohibition contained in our State and Federal Constitu-

tions against the taking of private property for public use

without just compensation.”).

Had the state legislature regulated the use of the

Reservoir, in such a way that required private property

owners to allow the public to use their property unfet-

tered, just compensation would have been due. See Nollan,

483 U.S. at 837, 107 S.Ct. 3141. Had the government

conditioned further benefits on the private individual

allowing access to the property, a taking might have

occurred. See id.; Dolan, 512 U.S. at 386, 114 S.Ct. 2309

(discussing exactions and the essential nexus test). The

government cannot escape the Takings Clause by opting to

sit by until title is transferred to it, and then claim that it

is not subject to the United States Constitutiori. The

Takings Clause and adverse possession and prescription

statutes cannot be mutually exclusive. The State must

EE a -

App. 53

abide by the terms of the United States Constitution. U.S.

Const. art VI, § 2.

2. The Use of an Inherent Sovereign Power

Defendant also claims that the State must exercise an

act of sovereignty to effectuate a taking. If the State is not

acting as a sovereign, defendant argues, then the State

should be treated as any other private individual would

be. To be acting as a sovereign, defendant claims, the State

must exercise either its eminent domain power or its

police power, neither of which it utilized here. This argu-

ment has no merit. Unlike a private individual, the State

must abide by the U.S. Constitution in its actions. U.S.

Const. amend. XIV. Additionally, the State acquired an

easement on behalf of the public, something that a sover-

eign, but no private individual, can do. Furthermore, if the

State is not using its police power or eminent domain

power, then the State action falls outside the public use

requirement of the Takings Clause and the State could not

act on behalf of the public. See Hawaii Hous. Auth., 467

U.S. at 240, 104 S.Ct. 2321 (holding that public use is

synonymous with the state’s police power).

3. Background Principles of State Law

Defendant also argues that because adverse posses-

sion and prescription are background principles of state

property law, there can be no taking. Insofar as the State

has engaged in a permanent physical occupation of plain-

tiff’s property, the Court need not delve into the state’s

background principles of property law. See Lucas, 505 U.S.

at 1027, 112 S.Ct. 2886. Instead, the Court must treat this

as if the State took the property by eminent domain. A

App. 54

background principle analysis is only required when the

government regulates out all economically beneficial use of

the property. Jd. Even if the background exceptions of

property law applied here, no U.S. Supreme Court prece-

dent establishes that the situation presented here would

fall under that exception. A background principle in

property law exception occurs when a property right that

was allegedly taken is determined to have never been part

of the property in dispute. See, e.g., Stevens, 854 P.2d at

456. Simply because a party had notice of a law is not

sufficient to render it a background principle. See Palaz-

zolo, 533 U.S. at 629-30, 121 S.Ct. 2448. The property

interest here was owned by a private entity and taken by

the State, and therefore was always part of the property

that plaintiff owned. ;

This Court concludes that »laintiff has alleged a

takings claim that would normz.y be sufficient to survive

a motion to dismiss. But there are other principles appli-

cable here.

STATUTE OF LIMITATIONS AND

DOCTRINE OF LACHES

Defendant makes various arguments that this claim is

time-barred by the statute of limitations. In general, 42

U.S.C. § 1983 governs claims for just compensation. City of

Monterey, 526 U.S. at 710, 119 S.Ct. 1624: Because § 1983

does not contain its own statute of limitations, the Court

must examine state law for a limitations period analogous

to the constitutional wrong asserted. Takings claims sound

in tort. Id. at 709, 119 S.Ct. 1624. The statute of limita-

tions for a tort action in Rhode Island is three years. R.I.

Gen. Laws §9-1-14; see also Pearman v. Walker, 512

F.Supp. 228, 234 (D.R.1.1981) (holding that an action

App. 55

against a Rhode Island municipality under § 1983 is

governed by the statute of limitations for personal inju-

ries).

To determine if the claim is time-barred, this Court

must determine when the taking occurred and when any

takings claim accrued. Plaintiff argues that its takings

claim did not begin to accrue until the Rhode Island

Supreme Court rendered its decision in 2001. Defendant

argues that the takings claim accrued as soon as the State

built the boat ramp in 1965.

As already discussed, this Court holds that the taking

occurred in 1975, at the moment the property was ad-

versely possessed and an easement by prescription was

created.’ Prior to 1975, plaintiff had only a claim for

trespass against the state for the boat ramp. As to the use

of the Reservoir by the public, plaintiff had no claim

against the state at all, but only against private individu-

als for trespass.

Concluding that the taking occurred in 1975 does not

resolve the issue of whether this claim is time-barred. The

Court must determine when a takings claim accrued. As

this Court has already discussed, a takings claim is not

ripe for federal court review until there is a final decision

* Even if the placement of the boat ramp constituted a permanent

physical occupation of plaintiff’s property and resulted in a taking at

that time, that fact would not change the determination of the date that

the taking by adverse possession occurred. This Court is not faced with

a claim based on the presence of the boat ramp, but a claim based in the

State’s acquisition of the title to the land under the boat ramp by

adverse possession. These are two distinct events.

Pon

App. 56

by the state court on the merits. Williamson, 473 U.S. at

186-87, 105 S.Ct. 3108.

Determining when a claim is ripe for federal court

review, in this case however, does not answer whether this

case is time-barred. In a typical takings case, if there is

such a thing, the owner of the property has control of the

litigation-that is, the owner would be the plaintiff in both

the state court and any federal court proceedings. For

example, the owner would challenge a given state regula-

tion in the state courts, and if plaintiff lost and the regula-

tion was upheld, could proceed to the federal courts to seek

compensation. That plaintiff could appeal the state court

decision to the United States Supreme Court, if comper7za-

tion had been denied, or if the claim became ripe for lower

federal court review, plaintiff could commence an action in

a United States District Court. Williamson addressed this

litigation scenario. 473 U.S. at 175, 105 S.Ct. 3108.

In contrast, here, Pascoag was the defendant at the

state level because the State sought a declaration of its

rights. Pascoag did not have to wait for the State to

initiate its action before it had a cognizable takings claim.

Pascoag’s predecessor in title had a number of remedies in

state court in 1975, but took advantage of none of them.

Pascoag’s predecessor could have sought to quiet title to

establish that the prerequisite determination that the

State had committed a takings had occurred. It could have

sued for trespass and ejectment, prompting the State to

raise the defense of adverse possession and prescription. It

could have argued that based on the State’s open and

notorious occupancy, the State had engaged in a de facto

condemnation of the property and sought compensation. In

short, Pascoag’s predecessor in title in 1975 had a cause of

action in state court for just compensation. It did not

App. 57

exercise that right. Instead, Pascoag and all its predeces-

sors in title sat idly by and waited for twenty-six years

after the cause of action for just compensation accrued-

until the State asserted its adverse possession and pre-

scription claim. Pascoag’s predecessor may not have had a

ripe cause of action in federal court in 1975 but it did have

a ripe cause of action in state court in 1975 to determine

its property rights and seek just compensation. Indeed,

any compensation due to plaintiff’s predecessor under the

Takings Clause would have been the value of the property

interests taken in 1975. That cause of action was time-

barred years ago.

The State’s three year statute of limitations for

personal injury begins to run on the accrual of a tort claim.

R.I. Gen. Laws § 9-1-14. For these purposes, the claim

accrued, or was ripe in state court, when plaintiff’s prede-

cessor was aware or should have been aware of the injury.

Since the Rhode Island Supreme Court determined that

the State’s presence was open, notorious, and hostile,

placing the then owner on notice of its presence, the owner

should have been aware that the taking had occurred. The

statute of limitations began to accrue in 1975 and the

cause of action became time-barred in 1978.

This Court is well aware that a federal takings claim

is ripe only after a state court renders a final decision on

the merits, and the statute of limitations does not begin to

run in a federal takings claim until the claim is ripe under

federal law. See, e.g., New Port Largo, Inc. v. Monroe

County, 985 F.2d 1488, 1493 (11th Cir.1993). It would be

truly bizarre, however, to allow this claim to proceed. For

state law purposes, this claim is twenty-three years too

old, yet it is only ripe for federal law purposes now.

This Court cannot sanction such an absurd result. Here,

App. 58

plaintiff and its predecessors in title, through repeated

inaction, let their rights fritter away. They had multiple

chances to take control of the situation and failed to do so.

This Court concludes that because the underlying state

claim for just compensation is barred by the statute of

limitations, this federal claim is similarly barred by the

statute of limitations.

Even if this claim is not a cause of action at law that

is barred by the statute of limitations, the claim nonethe-

less would be barred by the equitable doctrine of laches. To

reward plaintiff and its predecessors in title for sleeping

on their rights for twenty-six years offends the notion that

a party must come to an equity court with clean hands.

See Codex Corp. v. Milgo Elec. Corp., 717 F.2d 622, 633

(1st Cir.1983) (“The maxim of ‘he who comes into equity

must come with clean hands’ of necessity gives wide range

to a court’s use of ‘discretion to withhold punishment of

behavior which it considers not to warrant so severe a

sanction.’”) (quoting Norton Co. v. Carborundum Co., 530

F.2d 435, 442 (1st Cir.1976)). The Court cannot sanction-

proceeding with a claim that is so utterly stale.

The claim, at the very least, is barred by the doctrine

of laches. See Levald, Inc. v. City of Palm Desert, 998 F.2d

680, 687 (9th Cir.1993) (holding sua sponte dismissal is

not erroneous when defense of statute of limitations has

not been waived); Street v. Vose, 936 F.2d 38, 39 (lst

Cir.1991) (per curiam) (affirming sua sponte dismissal of

complaint on statute of limitations grounds). The doctrine

of laches is an equitable defense barring a claim for relief,

prior to the running of the limitations period, “where a

party’s delay in bringing suit was (1) unreasonable, and (2)

resulted in prejudice to the opposing party.” K-Mart Corp.

v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st Cir.1989).

App. 59

Clearly, a twenty-six year delay in bringing suit is unrea-

sonable. Clearly, defendant has been prejudiced by this

twenty-six year delay. The situation as it existed in 1975

cannot be replicated in making a determination of just

compensation as of that time.

For all the reasons discussed, at this time, plaintiff

cannot maintain a cause of action for just compensation

for the taking that occurred in 1975. This Court concludes

that plaintiff’s claim is barred by the tort statute of

limitations. If plaintiff’s claim is deemed an equitable one

it would be barred by the doctrine of laches. Therefore,

Count I of the complaint must be dismissed.

REMAINING STATE LAW CLAIMS

Counts II, III, and IV of plaintiff’s complaint assert

purely state law claims. This Court declines to exercise

supplemental jurisdiction over those claims. Supplemental

jurisdiction allows a federal court to hear both state and

federal claims if they would ordinarily be expected to be

tried in one judicial proceeding. 28 U.S.C. § 1367(a).

Supplemental jurisdiction, however, is discretionary.

Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d

538, 564 (1st Cir.1997). As § 1367 states, the Court may

decline to exercise jurisdiction if the Court has dismissed

all claims over which it has original jurisdiction.

Here, because the Court has dismissed Count I, the

only federal claim in the complaint, the Court declines to

retain jurisdiction over the remaining state law claims.

See id. Therefore, the state law claims are dismissed

without prejudice.

App. 60

. “ONCLUSION

Because Count I of plaintiff’s complaint is time-

barred, the Court grants defendant’s motion to dismiss. As

Count I is the only federal claim asserted by plaintiff, the

remaining state law claims contained in Counts II, III, and

IV are dismissed without prejudice for lack of federal

question jurisdiction.

The Clerk shall enter judgment for defendant to that

effect, forthwith.

It is so ordered,

App. 61

774 A.2d 826 i

Jan REITSMA et al.

PASCOAG RESERVOIR & DAM, LLC.

No. 2000-306-Appeal.

Supreme Court of Rhode Island.

June 20, 2001.

Michael L. Rubin, Alan Shoer, Providence, Joseph S.

Larisa, Jr., for Plaintiff.

Barry J. Kusinitz, John B. Webster, Warwick, for

Defendant.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER,

FLANDERS, and GOLDBERG, JJ.

OPINION

FLANDERS, Justice.

Can the state government involuntarily divest owners

of private property other than by eminent domain or by

condemnation? Yes, we hold, because, like private parties,

the government itself can acquire an easement by pre-

scription or title by adverse possession over property that

was otherwise privately owned during the period of the

taking. To do so, it must establish actual, open, notorious,

hostile, and continuous use of the property under a claim

of right for ten years, as required by G.L.1956 § 34-7-1.

See, e.g., Talbot v. Town of Little Compton, 52 R.I. 286,

286, 160 A. 466, 469 (1932) (holding that municipality, on

behalf of the public, “openly, notoriously and uninterrupt-

edly used the entire tract [of a beach] under a claim of

App. 62

right for a length of time far in excess of the statutory

period for obtaining title by adverse uses”).

In this case, acting through an executive department

now known as the Department of Environmental Man-

agement, the state * built a boat ramp in 1965 on a water-

front lot that it acquix:d in 1964. The property and the

boat ramp abutted ar u.ificially created body of water

called Echo Lake in Glocester. Although the record does

not reveal exactly when it did so, the state also erected

and maintained signs near the

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