Opposition Brief — Litten v. Grenada County

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No. 10-494

Hn the

Supreme Court of the Mnited States

LAWRENCE LITTEN, ET AL.,

Petitioners,

V

GRENADA County, MISSISSIPPI, ET AL.,

Respondents

On Petition for Writ of Certiorart to the United

States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

John J. Crow, dr.

Counsel of Record

203 Wagner Street

Water Valley, MS 38965

(662) 473-1870

john.crow@duckwood.net

Counsel for Respondent

Yalobusha County, Mississippi

December 14, 2010

Becker Gallagher - Cincinnati, OH + Washington, D.C. + 800.890.5001

QUESTION PRESENTED FOR REVIEW

1. Does the ripeness requirement of Williamson

County Regional Planning Commission v. Hamilton

Bank, 473 U.S. 172 (1985), that a person must first

exhaust his state court remedies before bringing a fifth

amendment takings claim in federal court, apply to

physical takings?

i]

LIST OF PARTIES

The following is a list of all parties to the

proceeding in the Court below

Plaintiff-Petitioners

1. Lawrence Litten

2. Fletcher Fly

Defendants-Respondents

1. Michael Lott

Grenada County, Mississippt

3. Yalobusha County, Mississippi

Li!

TABLE OF CONTENTS

Question Presented for Review

List of Parties

Table of Contents

Table of Authorities

Statement Regarding Jurisdiction

Statutory and Constitutional Provisions Involved

Statement of the Case

Reasons for Denying the Writ

Conclusion

iV

TABLE OF AUTHORITLES

Cases:

Armendariz v. Penman,

75 F.8d 1311 (9th Cir. 1996) ......... oe ee

Bldg. Owners & Managers Ass'n v. FCC,

254 F.3d 89 (D.C. Cir. 2001) ........... 10, 17

Casitas Mun. Water Dist. v. U_S.,

556 F.3d 1329 (Fed. Cir. 2009) ........ Sere i,

Coles v. Granville,

448 F.3d 853 (6th Cir. 2006)............ 13, 14

Daniel v. Cnty. of Santa Barbara,

woe F.0a 310 Coin Cir. SOUR) 2. ks cece eeaes LO

Eaton v. Charter Twp. of Emmett,

317 F. App’x 444 (6th Cir. 2008)(unpublished

I rae gras sk a sy ee as oe ee 13

First English Evangelical Lutheran Church of

Glendale v. Cnty. of Los Angeles,

ee ee Pe CE) oven ie pee ee ike eee ee 9

Fletcher Fly v. Yalobusha Cnty.,

368 F. App’x 487 (5th Cir. 2010) ......0.02.. 8

Hall v. City of Santa Barbara,

833 F.2d 1270 (9th Cir. 1987) .......... 11,15

J.B. Ranch, Inc. v. Grand Cnty.,

968 F.2d 306 (8th Cir. 1992) .........ce05. 16

V

McClung v. City of Sumner,

548 F.3d 1219 (9th Cir. 2009) ... ve 10

Metzger v. Vill. of Cedar Creek, Neb.,

370 F.3d 822 (8th Cir. 2004) ... 14

Miles v. Twp. of Barnegat,

334 F. App’x 841 (3rd Cir. 2009) . 12

Pascoag Reservoir & Dam, LLC v. R.1.,

337 F.3d 87 (1st Cir. 2003) .... LO

Plakas v. Cnty. of Middlesex, Va.,

803 F.2d 714 (4th Cir. 1986) ... | 19

Preseault v. Interstate Commerce Comm'n, et al..

494 U.S. 1 (1990) . or, rare ... 8,9

Severence v. Patterson,

566 F.3d 490 (5th Cir. 2009) ......... 21 a

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

882 F.2d 1398 (9th Cir. 1989) ....... 11, 15, 16

Urban Developers LLC v. City of Jackson, Miss.,

468 F.3d 281 (5th Cir. 2006) .......... ee

Villager Pond, Inc. v. Town of Darien,

56 F.3d 375 (2nd Cir. 1995) ............ ee

Williamson Cnty. Regl Planning Comm’n = vu

Hamilton Bank,

O7e WU. LIS CLOGS) 2 ccc ces eee. PASSIM

Constitutional Amendments:

U.S. Const. amend. V1

U.S. Const. amend. XV1

Statutes:

42. U.S.C.A. § 1983

Miss. Code Ann. §§ 65-7-4, et seq

Miss. Code Ann. § 65-7-4.1]

Miss. Code Ann. § 65-7-7

Viiss. Code Ann. § 65-7-71

Va. Code § 8.01-187 (1950 amended)

l

STATEMENT REGARDING JURISDICTION

This Court lacks subject matter jurisdiction of this

matter, as Fletcher Fly has not. perfected his claims by

exhausting his available state remedies for just

compensation, and therefore this case is not ripe for

adjudication in the federal courts.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Petitioner filed suit against Yalobusha County,

Mississippi in the United States Court for the

Northern District of Mississippi pursuant to 42

US.C.A. § 1983, alleging that Yalobusha County,

Mississippi, violated his rights secured by the 5th and

14th Amendments of the Unites States Constitution.

STATEMENT OF THE CASE

Petitioner alleges that in the year 2000 he suffered

an uncompensated taking of his land, due in part to

the passage of Miss. Code Ann. §§ 65-7-4, et seq. The

passage of this law was to map and register the county

roads of Mississippi. ‘The legislative intent of this

statute is laid out in the following section which states

in part that:

the proceedings and public hearing required for

initial adoption of the official map and county

road system register ...are not intended to lay

out, open, designate or otherwise establish

new public roads, but to document and record

existing roads which are, at the time of the

initial adoption of said map and register,

adjudicated by the board, consistent with fact,

9

to be public roads by dedication, under the

rnethods provided by statute, or by prescription

and required by public convenience and

necessity.

Miss. Code. Ann. § 65-7-4.1 (West), (emphasis added).

Petitioner alleges in his Petition that “the statute

required that if a right of way were to be added to the

prescriptive easement over a historically publicly used

road, the County must pay for it.” citing Miss Code

Ann § 65-7-7. This statement is false, as Miss. Code

Ann. §65-7-7 relates to the clearing of obstructions

along county roads, and §65-7-71, relates to the

payment for rights-of-way to a drainage district

Statement of the facts:

Fletcher Fly inherited land from his father in 2001.

This land contains approximately 162.4 acres and is

traversed by a public road. This road has been

recognized by Yalobusha County as Yalobusha County

Road 161 since 2000, and prior thereto, dating back to

1942, as the Henry Hudson Road. (RE 135-138)

Appellant has stated that the road has been there as

long as he can remember. (RE 182). The Yalobusha

County Tax Assessor only assesses Fletcher Fly for

160.2 acres. 2.2 acres is taken out of Appellant’s total

acreage because it is contained within County Road

161. (RE 135-138).

Appellant admitied that from 1985 to 2003 County

Road 161 was maintained by Yalobusha County from

its beginning to its Northern portion. (RE 171).

Specifically in 1996, County Road 161 was listed on

the county road system, maintained by the county, and

aa

found to be in satisfactory condition as evidenced by

entry on the minutes of the Board of Supervisors. (RE

172-181). However, there was a segment of County

Road 161, approximately 350 feet in length, that

received no county maintenance for approximately

three years. (RE 140-143)

In 2000, pursuant to Miss. Code Ann., § 65-7-4, the

Yalobusha County Board of Supervisors established a

county road register and official map. On May 25,

2000, a notice that a public hearing would be held on

June 12, 2000 seeking public comment on the official!

county map and road system registry was published in

the North Mississippi Herald and Coffeeville Courier,

newspapers of general circulation § throughout

Yalobusha County. A hearing was held on such date

and time, but no interested members of the public

attended. (RE 183-188). This is reflected in the June

16, 2000 Order of the Board of Supervisors, wherein

the map and registry were adopted. I/d.

Pursuant to the aforementioned order, Yalobusha

County posted the road running through Appellant’s

property with a sign bearing the words “CR 161”. (RE

153-156). Appellant stated that he first learned about

the road being named County Road 161 somewhere

about the year 2000 or 2001. (RE 189).

Appellant acknowledged that from 2003 to date,

Yalobusha County has maintained the road. (RE 190).

He also acknowledged that Yalobusha County has

been claiming and referring to the road that ran

through his property as County Road 161 since 2002.

(RE 191).

4

Appellant filed suit before the United States

District Court for the Northern District of Mississippi

on January 22, 2008. Paragraph 2 of the Appellant’s

Complaint clearly states that County Road 161 “had,

indeed once been a public road.” (RE 195-204).

Yalobusha County has never abandoned County Road

161 by minute entry. (RE 205). Furthermore,

Appellant does not contend, nor has proof been

presented, that he or his family ever gave permission

to the public to use the road.

In 1979, the Tillatoba Water Association

constructed a water line within the right-of-way of

County Road 161. ‘This water line begins at the

intersection of County Road 161 and County Road 154

and extends in a northerly direction into Section 19.

(RE 168-169). Other public utilities such as AT&T

(1985) and Tallahatchie Electric Power Association use

County Road 161 to provide service to the LaGassee

family, the Magee Hunting Club and David LaGasse.

(RE 168-170). Such utilities have served the area

landowners for forty years. Jd. During this service,

the utility companies have had to go down County

Road 161 for inspection and repairs of their

transmission lines. /d. ‘There are presently three (3)

dwellings located on land near County Road 161. One

is occupied by the LaGasse Family as a weekend

retreat, one is owned by David LaGasse, which is also

used for recreational purposes, and the remaining

cabin is occupied by the Magee Hunting Club. All

three owners use County Road 161 for ingress and

egress to their properties. (RE 153-156).

Disputed Facts:

Appellant has mentioned in his dissertation of the

facts, Mr. Tillman’s complaint of a road washout along

County Road 161. The testimony from Mr. Tillman’s

deposition shows that the portion of road washed out

lies in section 19. In his deposition, Mr. Tillman

stated that:

the road washed out just after you passed the

Magee Hunting Club on the Walker

land...and he [|Mr. Moorman] asked Mrs

Walker if it would be all right with her for me to

go around on her property, you know, and come

back in the main road down below where it was

washed out, and she said it would be

(emphasis added, text in brackets added for

clarity)

Mrs. Irene Walker’s property is in Section 19, her

property line lies along County Road 161 at its current

northern most boundary, which is also the North line

of Section 30, and/or the South line of Section 19. (RE

139). (RE 241). At one time County Road 161

extended North into Section 19, and into Mrs. Walker’s

land. (RE 140-143). All of Fietcher Fly’s property and

the sections of road involved in this suit are located in

section 30. Therefore, Mr. Tillman’s problems in the

early 1980s to the north of Plaintiffs property in

section 19 are unrelated to this suit, because during

this time he states that he continued to use the

remainder of County Road 161 to access his property.

“So all of it --- all of the years I had of the place after

that, I went around Mrs. Walker getting to my

property.” (RE 242). The only significance of Mr

Tillman’s problems in section 19 is the evidence it

provides the Court of the public’s continued

uninterrupted use of County Road 161.

As for the Mississippi Attorney General's Opinion

request written by Defendant’s attorney, the Opinion

restates the facts provided them as following: “County

maintenance from Point A to Point B has been almost

nonexistent within the last 20 years.” (RE 243-244)

The Opinion does not state that there was no

maintenance as contended by Appellant

Also, incidental to the issue before the Court today,

is the fact that nowhere in the record at pages 97-98

does it state that the Walker’s requested that the

County “retake” their driveway nor does it state that

the Board of Supervisors of Yalobusha County granted

any such request

The dispute of facts above are not material to thi

District Court’s rulings, and reference is made hereté

solely for the Court’s convenience

Statement of the Procedural History:

Fletcher Fly approached the Yalobusha County

Board of Supervisors and asked that County Road 161

be abandoned, or in the alternative, he be paid for the

alleged taking of the road by the County. (RE 10-12)

The Yalobusha County Board of Supervisors informed

him that his request was improperly submitted

Thereafter, the Appellant submitted an Amended

Complaint to the Board. (RE 13-15)

Thereafter, Fletcher Fly filed a complaint with the

United States District Court for the Northern District

of Mississippi alleging that his 5th and 14th

amendment rights had been violated. (RE 6). After

the conclusion of discovery, Yalobusha County filed a

Motion for Summary Judgment and_ supporting

memorandum and exhibits. (RIE 105-205). The Court

found that Fletcher Fly’s claims were not ripe for

federal jurisdiction, as he had not exhausted his

available state court remedies. (RE 272-273). After

the Order granting Summary Judgment was filed,

Fletcher Fly moved to Reform the Judgment pursuant

to Rule 59 of the Federal Rules of Civil Procedure

Motion. He alleged therein that he had presented a

claim for a private taking. (RE 274-277). The District

Court, over Yalobusha County’s objections, found that

Fletcher Fly had made a claim for an alleged private

taking that warranted a reform of judgment, but that

said claim fell under three of Yalobusha County’s prior

Summary Judgment arguments. (RE 322-326). Upon

review of the pleadings and facts presented through

discovery, the District Court found that there was no

genuine material issue as to the fact that County Road

161 is a public road, and that therefore Summary

Judgment as to Appellant’s private takings claim was

appropriate. (RE 322-326)

This matter was subsequently appealed to the 5th

Circuit Court of Appeals who affirmed the District

Court’s ruling that Fletcher Fly's claims for relief were

not ripe for redress

Kletcher Fly, admittedly, has never sought state

t

court. rehef

REASONS FOR DENYING WRIT

Fletcher Fly asserts that Williamson County’s

ripeness requirements apply only to regulatory

8

takings, and that there is a split among the circuits as

to whether the ripeness requirements apply to physical

takings, of which, the 5th Circuit Court of Appeals is

a minority. This however is not the case. In the

matter sub judice, the 5th Circuit held the following:

the two cases in this consolidated appeal have

no mutual parties or shared factual

circumstances, yet both present the threshold

issue of whether the ripeness requirement in

Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172

(1985), apphes to claims of physical takings.

We recently held that it does.

368 F. App’x 487 (5th Cir. 2010) See Severence vu

Patterson, 566 F.3d 490, 496-97 (5th Cir. 2009 citing

Urban Developers LLC v. City of Jackson, Miss., 468

Fo3d 281, 294-95 (5th Cir. 2006)

s,efore delving into the issue of whether the

Circuits are split, it is important to note that this issue

has already been addressed by this Court in Preseault

v. Interstate Commerce Commission et al., 494 U.S. 1}

(1990). As stated in Appellee’s brief to the 5th Circuit,

the Supreme Court in Williamson County established

that there are two prongs that a claimant must satisfy

for a takings claim brought under 42 U.S.C. § 1983 to

be ripe. The first prong is whether a final decision by

the governmental body has been obtained addressing

how the regulation will be applied to the landowner’s

property. The second prong is whether the suffering

landowner exhausted his available post-deprivation

remedies in an attempt to garner just compensation.

The Supreme Court in Preseault apphed the second

v

prong of the Williamson County ripeness doctrine to a

physical taking.

The Supreme Court in Preseault, which was an

appeal from the 2nd Circuit, began its analysis by

qualifying that the 5th Amendment does not prohibit

takings, it only secures compensation in the event that

there is a taking. /d., at 11 citing First English

cvangelical Lutheran Church of Glendale v. Cnty. of

Los Angeles, 482 U.S. 304, 314 (1987). “If the

government has provided an adequate process for

obtaining compensation, and if resort to that process

‘yield[s| just compensation,’ then the property owner

‘has no claim against the Government for a taking.’ ”

Id. citing Williamson County, supra, 473 U.S., at 194

The Supreme Court then stated that the vehicle for

seeking compensation for unconstitutional actions

committed by the Interstate Commerce Commission

was the Tucker Act, and that the proper venue for

such an action was before the Federal Claims Court

Id., at 17 The Court concluded that until the

petitioners failed to receive compensation using the

remedies provided by the Tucker Act, their takings

claim was not ripe. /d., at 17

In support of his argument that the Circuits are

split on this matter, Fletcher Fly states that the 5th,

7th, and 11th Circuits comprise a minority that

requires “state judicial exhaustion” in a_ physical

takings case. He then goes on to list a case for each

Circuit that supports his alleged split. There is a

fundamental problem with this list, however, because

Williamson County is only cited in two out of the ten

cases which allegedly support the “Williamson County

physical/regulatory distinction.” Further, none of the

listed cases delve into the physical taking ripeness

10

issue. The two cases which do cite Williamson County,

one of which, at least, refers to ripeness, only discuss

the case in dicta. The case Fletcher Fly cited for the

Ninth Circuit explicitly sidestepped the issue by

stating that “we do not resolve whether this claim is

ripe under the standards articulated in Williamson,

and instead assume without deciding that the taking

claim is ripe in order to address the merits of the

appeal.” McClung v. City of Sumner, 548 F.3d 1219, at

1224 (9th Cir. 2009). The other case that cites

Williamson, Building Owners & Managers Ass'n vu.

FCC, does so in the concurring opinion as support for

the argument that the Tucker Act allows the federal

government to be held liable for takings. 254 F.3d 89,

at 101 (D.C. Cir. 2001)

In an effort to provide the Court with an accurate

view of the Circuit’s holdings on this matter, here is a

list of cases that actually cite Williamson County, and

which are discussing ripeness issues

The First Circuit Court of Appeals in Pascoag

Reservoir & Dam, LLC v. Rhode Island, held the

following

Although Willtamson County was a regulatory

taking case, a modified version of its timeliness

analysis applies to physical taking cases. Daniel

v. Cnty. of Santa Barbara, 288 F.3d 375, 382

(9th Cir. 2002). The present case concerns a

potential physical taking, based on_ the

intrusion onto Pascoag’s property or the

acquisition of mghts in that property. In a

physical taking case, the final decision

requirement is relieved or assumed becaus\

“Iwlhere there has been a physical invasion, the

11

taking occurs at once, and nothing the

lgovernmental 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)...However, the state action

requirement remains in physical taking cases:

“{Clompensation 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 1311, 1326 (9th Cir. 1996) (en

banc).

337 F.3d 87, at 91 (1st Cir. 2003)

The Second Circuit Court of Appeals in Villager

Pond, Inc. v. Town of Darien held the following

Villager Pond attempts to avoid this result by

contending that a_ plaintiff who alleges a

physical taking, as opposed to a regulatory

taking, is not required to seek compensation in

a state proceeding before the claim will be

considered ripe...We reject Villager Pond’s

contention...Willtamson drew no distinction

between physical and regulatory takings, and

the rationale of that case, that “a property

owner has not suffered a violation of the Just

Compensation Clause until the owner has

unsuccessfully attempted to obtain just

compensation through the procedure provided

by the State,” 473 U.S. at 195, 105 S.Ct. at

3121, demonstrates that any such distinction

would be unjustified. Thus, regardless of

whether Villager Pond’s claim alleges a physical

12

or regulatory taking, the claim is not yet ripe for

review.”

56 F.3d 375, at 380 (2nd Cir. 1995).

The Third Circuit Court of Appeals in Miles v

Township of Barnegat stated the following:

We agree with the District. Court’s conclusion

that the Plaintiff's taking claims are not ripe for

review under Williamson County, as they have

not availed themselves of their remedies under

New Jersey law...The Plaintiffs argue that their

challenge to the “direct conduct” of the Ocean

County and Barnegat Township defendants in

taking their property without instituting an

eminent domain proceeding, is the kind of

“facial” taking claim that is not subject to

Williamson County...Here, the plaintiffs

inverse condemnation claim seeks just

compensation, not the invalidation of an

ordinance or statute on its face. Accordingly, we

will affirm the judgment of the District Court

334 F. App’x 841, at 845 (3rd Cir. 2009)

The Fourth Circuit Court of Appeals in Plakas v

County of Middlesex, Virginia, held the following

The Plakas claimed under 42 U.S.C. § 1983 a

taking of their private property without just

compensation and a denial of due process by the

County’s operation of the _ public

pier...Williamson Cnty. Reg'l Planning Comm’n

v. Hamilton Bank of Johnson City, 53 U.S.L.W.

4969 (U.S. June 28, 1985), dictates that the

13

proper disposition of these claims was a

dismissal for prematurity rather’ than

abstention followed by dismissal on the merits

for failure to “exhaust” state remedies...In the

instant case, the State of Virginia has

procedures for obtaining just compensation

which the Plakas have failed to utilize. Va

Code § 8.01-187 (1950 amended) provides

compensation for both takings and damage to

property, and provides a statutory mechanism

for enforcing inverse condemnation claim

under the Virginia Constitution’s just

Compensation Clause

803 F.2d 7 — 3 (4th Cir 1986), unpublished

Opinion

The Sixth Circuit Court of Appeals in ato

Charter Township of Emmett held the following

Although appellants assert that this was a

“physical” rather than “regulatory” taking, even

if this is true, the distinction is of n

consequence. As this court has noted, thi

distinction between physical and regulatory

takings is “fuzzy at best.”...assuming arguendo

that Emmett’s demolition of the buildings

constituted a physical taking, appellants were

still required to seek compensation, which they

clearly have not done

317 F. App’x 444, at 451 (6th Cir. 2008), unpublished

opinion. The 6th Circuit Court of Appeals furthered

opined in Coles v. Granutille that

14

Over the last ten years Ohio courts, including

the Ohio Supreme Court, have consistently

recognized mandamus as the vehicle with which

to contest an involuntary taking, no matter

whether that taking 1s a regulatory or physical

one, and no matter whether the public actor 1

a state or local entity. Because the Suprem:

Court’s direction in Williamson requires us to

assess the adequacy of state measures, thes

differences in the state of Ohio decisional law

require this Court to reach a_ different

conclusion today than that reached by the Aru

panel ten years ago...In the instant case thers

no dispute that Plaintiffs have failed t

request mandamus from the stat

therefore not yet ripe for revi

Hoth | [

lhe Eighth Circuit Court of Appeals in Metzger '

Village of Cedar Creek, Nebraska also dealt with a

physical taking. In that case, the Appellant argued

that the construction of an earthen levee alongside a

creek caused substantial flooding and damage to her

neighboring farm. Metzger, 370 F.3d 822, 823 (8th Cir

2004

Vietzger filed a lawsuit against Cedar Creek

and Fuxa, alleging they conspired to take her

property without just compensation in violation

of (1) the Fifth and Fourteenth Amendments to

the United States Constitution...The district

court ruled Metzger’s claims were not ripe

under Williamson, and thus, the district court

lacked subject matter jurisdiction over the

claims, because Metzger failed to allege she had

L5

pursued and exhausted her administrative

remedies for just compensation under state

law... Having reviewed Metzger’s complaint, we

conclude the district court correctly determined

Williamson controls and requires Metzger to

obtain a final decision by the = state

administrative entity charged with

implementing the applicable regulations, or by

the appropriate state court action, before her

claims are ripe for adjudication...Without

Metzger pursuing one of these procedures, or

some other appropriate state action, the district

court could not determine whether Cedar Creek

and Fuxa denied Metzger just compensation

lhe Ninth Circuit Court of Appeals in Sinaloa La/

Owners Association v. City of Stmi Valley, found the

following

Defendants argue, and the district court held

that this claim is not ripe because plaintiff

have failed to exhaust their state remedie:

Defendants rely on Williamson County Regional

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

172, 105 S.Ct. 3108, 87 L.Ed2d 126 (1985)...A

physical taking, such as the one at issue here, i

by definition a final decision and thereby

satisfies Williamson County’s first exhaustion

requirement. ‘The second, and independent

hurdle established by Williamson County

requires plaintiffs to “seek compensation

through the procedures the State has provided

for doing so” before turning to the federal

courts...Plaintiffs, citing footnote 28 of Hall,

16

contend that the second requirement of

Williamson County is also inapplicable to

physical invasion cases. That footnote however,

only relieves plaintiffs of the obligation to

exhaust administrative remedies in physical

taking cases-it does not excuse them from

seeking just compensation through — stat

procedures. Even in physical taking cases

compensation must first be sought from th

state if adequate procedures are available

882 F.2d 1398, at 1402 (9th Cir. 1989). The di

court’s judgment that the taking claim was not

was affirmed. /d., at 141]

The ‘Tenth Circuit Court of Appeals was confronted

with a similar case to the one sub judice in J.B. Ranch

Inc. v. Grand County. In that case, Utah passed

statute requiring “all roads, including those not

regularly maintained, which it deemed _ wer

established public thoroughfares” to be identified. J.B

Ranch, 958 F.2d 306, at 307 (8th Cir. 1992) ly

enacting the statute, the County declared roads insid

of the J.B. Ranch, Inc.’s property to be publi

thoroughfares, and informed them via letter that

could not lock the gates to the ranch.” Jd

he corporation seeks only declaratory relief in

the form of a judgment quieting title to the

roads. After reviewing the record and legal

issues involved in this case, we hold that

Plaintiffs claims are not ripe for review in thi

court...In Williamson, the Supreme Court noted

that “a property owner has not suffered a

violation of the Just Compensation Clause until

the owner has unsuccessfully attempted to

ybtain just compensation through the procedur

provided by the State for obtaining cl

compensation 173 U.S. at 195

ld, at 308 In summary, the 1Oth Circuit ¢ irt

Appeals stated that the “facts of this case fall squar

within Fifth Amendment analysis,” and held that tl

Appellant constitutional claims were not?

yy

i Cans with ‘Bal requil ibe Act have Come petore |

enable that Court to voice its opinion on the matt

he Cast letcher Fly has upplied (_asita MA iy icin

/f

Water District v. U.S., 556 F.3d 1329 (Fed. Cir. 2009

neither cite Williamson Cour

ripene f L qi Ul

milar] f TT ‘ /

hefore the I) ( (Circuit either Cheaqu I pres |

before the 1).C. Circuit Court of Appea ) Build

Owners & Manager | fil KCC is whether a taki

nad occurred a a re iit of the adopt n oOo Line

lelecommunications Acts of 1996: Restrictions on Ov

the An Reception Le Vice (( ’] ARD) Z »4 I d eby,

lOO Accordingly. because petitione! faciailchalle

lails to present an ‘identifiable set of instance

which mere application of [the amended OTARD ru

will necessarily or even probably constituts

taking ...we apply Chevror deferens to th

Commission interpretation..and we leny the

on. Jd. The issue of ripene iS not discussed in

the opinion, and Williamson County 1s cited only in th

concurring opinion a upport for the proposition that

;

claim ivainst hie ledera (;overnment

ually applic:

case sub judice, on ids tl the country }

» divided or split ; Appellant, Fletcher

vould lead the Cou » believe. in fact, the Circ

Ve thie \ rit

Retor thy

jurisdiction

CONCLUSION