Petition for Writ of Certiorari — Johnson v. City of Shorewood

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OFPAICE OF Tit OLERK

In The

Supreme Court of the Gnited States

RONALD JOHNSON AND DEE JOHNSON,

Petitioners,

CITY OF SHOREWOOD, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals 2

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

ERICK G. KAARDAL*

Eric L. LIPMAN

MOHRMAN & KAARDAL, P.A.

33 South Sixth Street,

Suite 4100

Minneapolis MN 55402

612-341-1074

Counsel for the Petitioners

May 4, 2004

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does the Williamson jurisdictional requirement to

exhaust state judicial remedies permit a federal court

remedy when the state court final judgment awards

nothing for a previously-adjudicated physical taking?

2. Whether 42 U.S.C. § 1983 jurisdiction exists for

violation of Just Compensation Clause when a state court

final judgment awards ZERO compensation for a previ-

ously-adjudicated physical taking?

3. Whether Rooker-Feldman doctrine applies when

landowners did not have a reasonable opportunity to

litigate Corps’ and municipality's misrepresentations of

pre-ownership Clean Water Act wetland in the state court

condemnation proceeding?

PARTIES TO THE PROCEEDING

The following individuals and entities are parties to

the proceeding in the court below: |

Ronald Richard Johnson and Dee Lundberg Johnson;

Plaintiffs-Appellants.

City of Shorewood, Minnesota and its Mayor in his

official capacity; City of Minnetonka, Minnesota and iis

Mayor in her official capacity; Riley-Purgatory-Bluff Creek

Watershed District, and the Chair of its Board of Manag-

ers in his official capacity; Trivesco, a partnership and its

partners; Robert H. Mason, Inc., a corporation; Highland

Properties, Inc., a corporation; Steiner & Koppelman, Inc.,

a corporation; Highland Villa Builders, Inc., a corporation;

United States of America; Corps of Engineers, being sued

as the Corps of Engineers of the United States; Louis

Caldera, The Honorable Secretary of the United States

Army or his successor in his/her official capacity; Joseph

N. Ballard, Lt. General, the Commander-in-Chief of the

Corps of Engineers of the United States or his successor in

his/her official capacity; Defendants-Appellees.

CORPORATE DISCLOSURE STATEMENT

Plaintiffs as individuals state that Supreme Court

Rule 29.6 does not apply because the plaintiffs are not

corporations.

i No I

ili

TABLE OF CONTENTS

Page

Susstions Presented 0... eccesssescssssmseesc.. i

Parties to the PTOCOOGING oon. ceosscscscssseessssocooseeeces..... li

Corporate Disclosure Statement ow il

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SE NTIIIOE s.s ss csesivseseinsotccooe,,.. iv

Petition for Writ of TOON oes ssvsvssiirviversseerce...... 1

DI scr csenscissrsvessestsesunteseeccs,c.. 1

PM iss isnsasssiesedesttervesrsoseesossescc 3

Constitutional Provisions and Statutes Involved... 3

OBER. oo csccsceescvesecoescc 4

Reasons for Granting the a NO 19

RR seen ssenscnsciessssccrvesevenssssoniotcdciee =, 30

TABLE OF AUTHORITIES

CASES

Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996)....... 28

City of Monterey v. Del Monte Dunes at Monterey,

Ee GB BT Cae ntsitcesissstnterrpinciniccsscicscrenviaven 8

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

terey, 920 F.2d 1496 (9th Cir. 1990)......... 8, 20, 24, 25, 26

District of Columbia Court of Appeals v. Feldman,

SOO TD. Be Ce hittin passim

Gisslen v. City of Crystal, 345 F.3d 624 (8th Cir.

RIED sc. cc aslgcicacxdercancascemeesiabaecasusantn danusaeiuadumanenlieialauaal 29

Lemonds v. St. Louis County, 222 F.3d 488 (8th Cir.

SINE ccsnssucuczanceaovesiacesduages sacpunsecsnincumabsndeaniiaakeiasaieuamaiaads 29

Long v. Shorebank Development Corp., 182 F.3d 548

Ce SE SII <o.ccidasiscessadstchnmenedeincenpnronibanaaeens 8, 27, 28

Loretto v. Teleprompter Manhatten CATV Corp.,

Se Te GE Ct sete ctnisirispsssiertasennccns 7, 20, 21, 23

Lucas v. South Carolina Coastal Council, 505 U.S.

SE 6 BEE iiicviecssnicnscasantainsiancacviwevehunsteiaatmumenins 7, 21, 23

National Wildlife Federation v. Marsh, 721 F.2d 767

PR ae PD sastiicicssctustsicesesiesduncevcacsabentaisadstaenencamancess 10

Palazzolo v. Rhode Islanc!, 533 U.S. 606 (2001) ..... 7, 21, 23

Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985)......... 28

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)..... passim

Williamson County Regl Planning Comm. uv.

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

Wood v. Orange County, 715 F.2d 1543 (11th Cir.

EE sccrshascvcctasésacevarin oeicineesaaereiaeie 26, 27, 28

;

)

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

AMON, Boanea..ssscsssssesessrsersosesssensstonseseseessssc 3, 8, 16, 21, 30

mee 4

FEDERAL STATUTES

28 U.S.C. § BOOT) sssscssrorsrnrsesinsassessessovssvosorenseozescseceeseecss.. 3

aalishintindh Lanta passim

wbiptinl deca en a 1

SN BROW ss canssnorecsssigasertus oe ee 12, 22, 23

FEDERAL REGULATIONS

om I MOOI cicciccemesislcehnee eee 10

STATE STATUTES

NI I ET aici aicdercnscrardig ee ee 12

U.S. SUPREME CourT RULE

U.S. Supreme Court MF SD asincisszdonaau cea 5

MINNESOTA RULE OF CIVIL PROCEDURE

Minn. R. Civ. Proc. PN vs ssiovendisiipnsssisdstniiensoiecantin 26

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari

be issued to review the judgments of the United States

Court of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals, App. 1, is reported

as Johnson v. City of Shorewood, 360 F.3d 810 (8th Cir.

March 5, 2004). The court of appeals affirmed the district

court’s judgment but modified the holding to apply sua

sponte Rooker-Feldman doctrine.

The district court judgments, orders, and related

reports and recommendations from the U.S. Magistrate

Judge, App. 18-49, are not reported. The district court in

relevant part dismissed the 42 U.S.C. §§ 1983, 1985

takings claims against the defendants for lack of jurisdic-

tion and d'smissed the claims against the United States

instructing the Johnsons to bring their takings claims

against the United States in the U.S. Court of Federal

Claims. App. 21-22.

After the U.S. District Court issued its order, the

Johnsons commenced a complaint against the United

States in the U.S. Court of Federal Claims (“COFC”). The

COFC dismissed the Johnsons’ takings claims in Johnson

v. United States, Case 01-465L (November 4, 2003), App.

51-58. Final judgment was entered on April 5, 2004. App.

59. The Johnsons have appealed to the U.S. Court of

Appeals for the Federal Circuit and requested a stay

pending the U.S. Supreme Court’s decision on this petition

for writ of certiorari.

Prior to the U.S. District Court litigation, the John-

sons litigated in state court from 1991 to 2000. The court

of appeals described the principal state court litigation as

follows:

Shorewood constructed a road berm, culvert, and

pond-control structure along the southern bound-

ary of the Johnson property. The pond-control

structure raised the bottom of the drainage ditch

above its original elevation and created a pond

near the southern boundary of the Johnson prop-

erty. Based on the elevation of the pond-control

structure, the Watershed District designated a

100-year storm event flood plain at an elevation

of 917.1 feet above sea level and prohibited con-

struction at elevations lower than 919.1 feet.

Johnson v. City of Shorewood, No. 91-18099, at 4

(Minn. Dist. Ct. Aug. 17, 1993, Findings of Fact,

Conclusions of Law, and Order for Judgment).

The Johnsons commenced state court litigation

against Shorewood in 1991, alleging inverse con-

demnation under both the federal and Minnesota

constitutions. The state court determined that

the flood plain restrictions did not constitute a

regulatory taking, but concluded that the pond

and associated control structure had physically

taken the Johnsons’ property up to 914 feet

above sea level because the pond would rise to

that elevation during “major storm events.” Jd. at

5. Accordingly, the state court issued a writ of

mandamus compelling Shorewood to commence

condemnation proceedings for the purpose of ac-

quiring a drainage easement on the Johnsons’

property up to 914 feet above sea level. Id. The

Minnesota Court of Appeals affirmed this judg-

ment. Johnson v. City of Shorewood, No. CX-93-

2452 (Minn. Ct. App. May 11, 1994), review de-

nied, (Minn. July 15, 1994).

Shorewood instituted' condemnation proceedings

... The jury awarded the Johnsons $2,000 for

the taking and $63,000 for clean-up costs. The

state court vacated the $2,000 takings award,

however, in light of the jury’s finding that the tak-

ing had not diminished the market value of the

Johnsons’ land ... The Minnesota Court of Ap-

peals affirmed the judgment, holding that the

$63,000 award was appropriate because the

value of the Johnsons’ property would have been

diminished absent clean-up of debris caused by

the flooding. City cf Shorewood v, Johnson, No.

C5-97-1525, 1998 WL 188561, at *1 (Minn. Ct.

App. April 21, 1998),

App. 6-7 (emphasis added). Copies of the state court

opinions or relevant excerpts are included in the appendix,

App. 60-122. Final judgment in the state condemnation

proceeding was entered in 2000. Johnson v. City of Shore-

wood, No. DC CD 2344 (Minn. Dist. Ct. Jan. 5, 2000 Notice

of Entry of Judgment). App. 50.

JURISDICTION

The final judgment of the United States Court of

Appeals for the Eighth Circuit was filed on March 5, 2004.

App. 4. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PRO VISIONS

AND STATUTES INVOLVED

The Fifth Amendment to the U.S. Constitution pro-

vides:

No person shall be held to answer for a capital or

otherwise infamous crime, unless on a present-

ment or indictment of a grand jury, except in

cases arising in the land or naval forces, or in the

militia, when in actual service in time of war or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

(U.S. Const. amend. V]

The Fourteenth Amendment to the U.S. Constitution

provides:

No State shall make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State

deprive any person of life, liberty or property,

without due process of law; nor deny to any per-

son within its jurisdiction equal protection of the

laws. [U.S. Const. amend. XIV, § 1)

Title 42, Section 1983 of the United States Code

provides:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the ju-

risdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer’s judicial capac-

ity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory re-

lief was unavailable. [42 U.S.C. § 1983 (2001).]

STATEMENT OF THE CASE

The Johnsons request that the U.S. Supreme Court

consider clarifying its jurisdictional rule in Williamson

County Reg’l Planning Comm. v. Hamilton Bank, 473 U.S.

172 (1985) (“Williamson”) and apply it in this case. In

Williamson, the U.S. Supreme Court said a property

owner “has not suffered a violation of the Just Compensa-

tion Clause until the owner has unsuccessfully attempted

to obtain just compensation through the procedures

provided by the State for obtaining such compensation”

and that “the property owner cannot claim a violation of

the Just Compensation Clause until it has used the

procedure and been denied just compensation.” Jd. at 195.

The Johnsons believe they have been “unsuccessful”

and can claim a violation of the Just Compensation Clause

— in the way Williamson defines it. The Johnsons have

been “unsuccessful” by litigating for ten years in state

court only to receive a state court final judgment awarding

ZERO compensation for a previously-adjudicated physical

taking of land. The state court judgment on its face vio-

lates the mandate of the Just Compensation Clause which

provides, “[N]or shall private property be taken for public

use, without just compensation.” Awarding ZERO is a per

se violation of the Just Compensation Clause.

Because of these circumstances, Williamson suggests

42 U.S.C. § 1983 jurisdiction exists for the Johnsons

because the state court procedures did not require Shore-

wood to pay any compensation, i.e., nothing, to the John-

sons in exchange for their land.

The court of appeals did not apply this interpretation

' of Williamson, but deferred to the state court judgment

under the Rooker-Feldman doctrine instead. In so doing,

the court of appeals has decided a fundamental and

important jurisdictional question that has not, but should

be decided by the U.S. Supreme Court. See Rules of Su-

preme Court of the United States R. 10(c).

The court of appeals stated that Rooker-Feldman

deference to state court judgments closed the door entirely

on 42 U.S.C. § 1983 jurisdiction after a state court con-

demnation judgment:

Finally, because the United States Supreme

Court alone has jurisdiction to review state court

decisions, the lower federal courts lack subject

matter jurisdiction to consider federal claims

that would vitiate an underlying state court

judgment. Lemonds, 222 F3d at 492; see also

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 483 (1983); Rooker v. Fi-

delity Trust Co., 263 U.S. 413, 416 (1923). With

the limited exception of habeas corpus actions,

this principle, known as the Rooker-Feldman

doctrine, applies whenever a federal claim would

succeed only “to the extent that the state court

wrongly decided the issues before it.” Simes uv.

Huckabee, 354 F.3d 823, 827 (8th Cir. 2004)

(quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

25 (1987) (Marshall, J., concurring)) .. .

Many of the Johnsons’ claims call upon us to con-

sider issues identical to those on which the John-

sons have already obtained a _ state court

decision, especially as against Shorewood. Al-

though the district court mentioned our decision

in Lemonds, it disposed of claims actually liti-

gated in state court cases under principles of col-

lateral estoppel. We believe the problem is more

fundamental. To the extent the Johnsons’ alleged

constitutional injury stems from claims adjudi-

cated in the prior state court judgment, the dis-

trict court lacked jurisdiction under Rooker-

Feldman because the Johnsons are essentially

challenging the state judgment as inadequate

and are “asking the federal court for the same

remedy requested in the state court action: just

compensation.” Gisslen v. City of Crystal, 345

F.3d 624, 628 (8th Cir. 2003), pet. for cert. filed,

No. 03-1141 (Feb. 4, 2004)...

The Johnsons argue that they were denied just

compensation due to “misrepresentations” perpe-

trated in the state court proceedings — misrepre-

sentations that they allegedly discovered after

the fact. Whatever the validity of these allega-

tions, Rooker-Feldman stands as a bar to federal

review because the Johnsons’ requested relief

“would effectively reverse the state court decision

or void its ruling.” Bechtold v. City of Rosemount,

104 F.3d 1062, 1065 (8th Cir. 1997). The John-

sons’ remedy, if any, is to return to state court

and utilize the procedures for remedying fraud.

See Johnson v. Smithsonian Institution, 189 F.3d

180, 186-87 (2nd Cir. 1999). If the state courts

deny relief, the Johnsons may seek review by the

United States Supreme Court.

App. 14-15.

The Johnsons argue below that the court of appeals’

decision contradicts a series of U.S. Supreme Court man-

dates. First, this Court in Loretto v. Teleprompter Manhat-

ten CATV Corp., 458 U.S. 419 (1982) held that the federal

Fifth Amendment requires all physical occupation takings

- fraud or no fraud — be compensated. This Court con-

ciuded “that a permanent physical occupation authorized

by government is a taking without regard to the public

interests that it may serve.” Jd. at 426. This Court in

Lucas v. South Carolina Coastal Council re-stated the

same principle:

We have, however, described at least two discrete

categories of regulatory action as compensable

without case-specific inquiry into the public in-

terest advanced in support of the restraint. The

first encompasses regulations that comfel the

property owner to suffer a physical “invasion” of

his property. In general (at least with regard to

permanent invasions), no matter how minute the

intrusion, and no matter how weighty the public

purpose behind it, we have required compensa-

tion ... The second situation in which we have

found categorical treatment appropriate is where

regulation denies all] economically beneficial or

productive use of land.

Id., 505 U.S. 1003, 1015-16 (1992) (citations omitted)

(emphasis added). Later, in Palazzolo v. Rhode Island, 533

U.S. 606 (2001), this Court confirmed, “The clearest sort of

taking occurs when the government encroaches upon or

occupies private land for its own proposed use. Our cases

establish that even a minimal ‘permanent physical occupa-

tion of real property’ requires compensation under the

Clause.” Id. at 617 (emphasis added).

The Johnsons also argue that the court of appeals’

decision conflicts with the decision of the court of appeals

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

920 F.2a 1496 (1990) (“Del Monte Dunes”), appeal after

remand, 95 F.3d 1422 (9th Cir. 1996), aff’d, City of Mon-

terey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687

(1999). Del Monte Dunes holds that federal jurisdiction

existed when state procedures for compensation in Cali- |

fornia state court were inadequate. Jd., 920 F.2d at 1507

(“California’s compensation procedures were inadequate

when the alleged taking occurred, and appellants have

established the ripeness of the compensation component of

their regulatory taking claim.”). In contradiction to Del

Monte Dunes, the court of appeals found no federal juris-

diction even though Minnesota’s compensation procedures

proved inadequate for the Johnsons.

The court of appeals’ decision also conflicts with the

decisions of the U.S. Court of Appeals which have held

that Rooker-Feldman doctrine did not apply to a previous

state court judgment if the federal plaintiff did not have a

reasonable opportunity to litigate the issues in state court.

See, 2.g., Long v. Shorebank Development Corp., Y82 F.3d

548 (7th Cir. 1999) (“Long”). In this case, the Johnsons

could not have litigated the issue of the alleged pre-

ownership Clean Water Act wetland fraud because the

state court did not have subject matter jurisdiction over

Clean Water Act determinations and lacked personal

jurisdiction over the U.S. Corps of Engineers (“Corps”).

Despite these facts, the court of appeals found that the

previous state court judgment barred all of Johnsons’

federal claims.

Finally, the Johnsons argue that federal jurisdiction in

this case would be only a narrow exception to the Rooker-

Feldman doctrine and would provide useful guideposts for

both federal and state courts in future Fifth Amendment

Just Compensation Clause proceedings.

A RT Al placate 2S:

Prior Proceedings

The Johnsons’ primary aliegation is that the appellees

have, individually and in concert, effected a series of

regulatory and physical takings — 1984 to 2002 and cur-

rently — while obstructing the state court to avoid paying

the Johnsons any compensation for the takings. App. 4, 8.

The subject property, which the Johnsons purchased

in 1981, is located within the City of Shorewood. App. 5-6,

App. 113-15 (maps). It consists of three woody knolls

separated by a flat, centrally-located field. App. 5-6. The

field is diagonally bisected by a '% mile drainage ditch

running from the northeast corner to the southwest

corner.’ Before 1984, water freely ran through the ditch

and headed south from the Johnson property, ultimately

emptying into Purgatory Creek. App. 113 (map of drainage

ditch).* In 1980, prior to the Johnsons’ purchase, the field

was designated as a wetland on the National Wetland

Inventory (NWI) map issued by the U.S. Fish and Wildlife

Service. The Johnsons disputed the NWI map because of

their personal knowledge the land was dry, ditched-and-

drained farmland before the dam and dumping caused the

flooding and because the NWI map is based on subjective

and out-of-date U.S.G.S. topography and aerial photogra-

phy. Id., App. 123-35. The Johnsons also have undisputed

expert’s reports on hydrology and vegetation confirming

their personal observations of pre-dam dry land. App. 136-

152.

After the Johnsons purchased the property, the

combination Shorewvod and private developers (Trivesco)

began developing land to the south and west. App. 6.

Dubbed “Waterford,” the resulting subdivision required the

* The obvious purpose of the ditch excavation in the 1950’s was to

couvert any possible wet land to dry land.

* The Johnsons allege that they possess common law riparian

rights to natural, downstream drainage.

installation of roads and utilities. In 1984, Shorewood and

Trivesco obtained the consent of the Corps to instail the

roads and utilities under an existing Clean Water Act nation-

wide permit that authorized the filling of “headwaters

wetlands.” Jd.*° Later, the Watershed District issued a

permit for the work. Jd.“

Shorewood constructed a road berm, culvert and

culvert inlet water level pond “control structure”, i.e., ditch

“dam”, along the southern boundary of the Johnson

property. Id.° The dam raised the bottom of the drainage

ditch twelve feet above its original elevation and created a —

-pond near the southern boundary of the Johnson property.

App. 97-101. This permanent flooding resulted in no

benefit to the Johnsons, but only adverse impacts. App.

101.° Based on the design of the pond-control structure,

the Watershed District designated a 100-year storm event

flood plain at an elevation of 917.1 feet above sea level and

* The Corps issued two (2) separate permit determinations a

month apart. Both permits were issued on preliminary Waterford plans

for a free flowing road culvert in violation of its articulated policies to

only approve final plans. Final plans included the above-described dam

— not a free flowing road culvert. See National Wildlife Federation v.

Marsh, 721 F.2d 767, 785-86 (11th Cir. 1983), citing Vermont Yankee

Power Corp. v. National Defense Counsel, Inc., 435 U.S. 519, 543-44

(1978).

* The Watershed District permit issued on new, final and revised

Waterford stormwater utility plans prepared after the Corps’ two

permit determinations. The damming and dumping violates the Corps’

33 C..R. Part 330 permit “Special Conditions of Nationwide Permits”,

in particular the permit “Management Practices”, 330.4(b)(6), 5(a)(4)

which required the avoidance of “adverse impacts on the aquatic

system.” If no such avoidance, the regulations required an individual-

ized Corps’ review of the Waterford project — not done.

* The pond was for both “aesthetic reasons/purpose” (private use)

and for the collection of storm water from adjoining subdivisions (public

purpose). App. 98, findings of fact no. 8.

* The pond is, in reality, Johnsons’ drainage ditch overflowing its

banks even in fair weather.

OO —

i tt

prohibited construction at elevations lower than 919.1

feet.’ Johnson v. City of Shorewood, No. 91-18099, at 4

(Minn. Dist. Ct., Aug. 17, 1993, Findings of Fact, Conclu-

sions of Law and Order for J udgment). App. 96-108.

The Johnsons commenced their state court litigation

against Shorewood in 1991, alleging inverse condemnation

under both the United States and Minnesota constitutions.

App. 6. The Johnsons alleged that the dam and dumping

and resulting flooding restricted the highest and best use

the land could ever be put — development and construction

of residential homes. Jd. The building restrictions at 919.1

feet make approximately 11 acres of Johnsons’ 20 acres

previously-developable property undevelopable. Jd. The

Court should take judicial notice that currently develop-

able land in Shorewood — a relatively affluent Minneapolis

suburb bordering Lake Minnetonka — sells for approxi-

mately $100,000 per acre.

The state court determined that the 917.1 foot flood

plain restrictions did not constitute a separate regulatory

taking, but concluded that the damming and dumping had

physically taken the Johnsons’ property up to at least the

914 feet above mean sea level (MSL) because the ponding

would rise to that level during “major storm events.” App.

6-7. Accordingly, the state court issued a writ of manda-

mus compelling Shorewood to immediately commence

condemnation proceedings for the purpose of compensat-

ing the Johnsons for the taking up to 914 feet MSL - the

914 foot flood plain. App. 7. In short, the Court found that

the elevation of water in Johnsons’ ditch was raised 12 feet

— from 902 feet to 914 feet. Id. The Minnesota Court of

” This designation was based on the ultimate level of forecast new

flooding using the property as a regional storm sewage dump and

impoundment basin including for new, adjoining parcels not yet

developed.

Appeals affirmed this judgment. Johnson v. City of Shore-

wood, No. CX-93-2452 (Minn. Ct. App. May 11, 1994),

review denied (Minn., July 15, 1994). App. 92-95.

The state court reserved, by declining to decide, the

pre-damming wetland issue. App. 97, Finding of Fact no.

3. Undoubtedly, this was done because the state courts

have no personal jurisdiction over the Corps and no

subject matter jurisdiction under the Clean Water Act

§ 404, 33 U.S.C. § 1344 (“Clean Water Act”). Compare App.

113, 114. See, App. 133-52. Whether property was a pre-

existing wetland goes to the condemnation damages —

which is the condemnation market value of the highest

and best use to which the property could be put before and

after the taking.

Shorewood ultimately instituted condemnation proceed-

ings in 1994. App. 7. The Court appointed commissioners

who in turn awarded the Johnsons $2,000 for the ease-

ment and $3,000 for “cost to cure” damages. App. 61. The

$2,000 award was based solely on real estate comparables

that were Clean Water Act wetlands. Not satisfied, the

Johnsons requested a jury trial, a right codified by Minn.

Stat. § 117, et seq. App. 61.

The Johnsons’ property right to federal Fifth Amend-

ment just compensation went unrealized at the jury trial

in 1996. App. 61. Prior to the jury trial, the state court

held that the Johnsons were collaterally estopped from

presenting evidence contrary to the erroneous pre-

ownership National Wetland Inventory wetland designa-

tion:

Because the issue concerning the pre-ownership

wetland designation relating to the Property, and

the issue concerning the City’s conditions for plat

approval, were already adjudicated [in the first

state proceeding] ... upon a motion for summary

judgment the doctrine of collateral estoppel

clearly precludes the introduction of evidence or

argument [to the] .. . contrary.

App. 90 — City of Shorewood v. Johnson, No. CD-2344

(Minn. Dist. Ct., Oct. 10, 1996, Memorandum and Order).

See, App. 7 n. 6.

Thus, at the jury trial, the Corps’ jurisdictional wet-

land misrepresentation was presented as uncontested fact

in state court by City of Shorewood wetland expert Ronald

P. Peterson. The highlights of Peterson’s testimony relat-

ing to the fraud are as follows:

Q. OK. Now, as I understand your testimony,

you think that — you will agree that if the

Johnson property was not — was not a wet-

land before the taking and is now a wetland,

you would agree that the Johnsons have sus-

tained damage, would you not?

A. Yes.

Q. OK. We'll write damage (indicating) pre-

taking, wetland — Oh, no. Wetland and after

wetland. Under those circumstances, you

would agree that Mr. Johnson —- that the

Johnsons have sustained damage. Correct?

A. Correct.

* * *

Q. You’re aware that the Corps of Engineers has

not asserted jurisdiction over this property,

are you not?

A. They most certainly have.

* * *

Q. And what language in those letters specifi-

cally leads you to believe that the Corps be-

7 lieved that Johnsons’ property was a wetland?

A. Well, there are three letters. One is February

7, 1994, one is from March 2nd, 1993, one is

from March 17th, 1993.

* * *

Q. Is it your testimony that all of this area was

and is wetland?

Yes.

App. 72-73, 77, 82. The three Corps’ letters and their CWA

wetland conclusions were not based on ground truth. App.

123-32. The CWA wetland determination was based on an

inaccurate and erroneous 1980 NWI map issued by the

United States Fish and Wildlife Service.” Shorewood’s and

the Corps’ actions erroneously presented the Johnsons’

property as pre-dam wet land when it was pre-dam dry

land. Compare App. 113, 114, 133-52. Based on the same

Clean Water Act wetland comparables seen by the com-

missioners, the jury arrived at the same $2,000 takings

award. App. 7.

But, as a further result of the misrepresentations —

the state court ensured the Johnsons received ZERO

compensation remedy for the previously-adjudicated

physical taking by vacating the $2,000 takings award:

The Jury, finding that the difference between the

fair market value of the entirety of the property

before the City’s taking and_the fair market

value of the remainder of the property after the

City’s taking was zero, the Respondents are not

entitled to any damages for the loss of value of

their property.

App. 67 — Shorewood v. Johnson, No. CD2344 (Minn. Dist.

Ct. 1994), aff’d No. C5-97-1525 (Minn. App. 1998), rev.

denied (Minn. 1998). See App. 7-8, 60-90.

In reality, the Corps had no federal wetland jurisdic-

tion over the Johnsons’ dry land and knew it. The Corps’

Regulatory Guidance Letter 82-02, applicable to the

Johnsons’ situation, states:

Thus, it is the Corps’ policy that once a wetland

area has been converted to another use which

* From the information given at the 1996 condemnation trial and

Corps’ February 14, 1997 letter, the Johnsons learned that merely

approximately 10% of area parcels designated on the NWI maps were

ground truthed to be wetlands in fact.

alters its wetland characteristics to where it is no

longer a “water of the United States,” that area

will no longer come under the Corps’ regulatory

jurisdiction.

App. 161-62.

Prior to the 1996 condemnation jury trial, Johnson

sent a January 27, 1996 letter to Corps officer Ben A.

Wopat complaining that the Corps and Shorewood were

acting wrongly and requested a no jurisdiction letter:

The City claims the area is subject to City Wet-

land Conservation. (In making this assertion, the

City relies on USCOE communications, in par-

ticular, with Bradley Nielsen and Ronald Peter-

son. Mr. Nielson is City Planner. Mr. Peterson is

an attorney and “wild life biologist”). After three

reconnaissance surveys, MFRA concluded the

City imposed the restriction after the taking; the

area was not a wetland before. Mr. Kepple opines

legal “wetland” cannot be created by damming up

an adjoining landowner’s ditch without his au-

i thority. Therefore, my property did not and does

not have Section 404 wetland. Please issue the

disclaimer and amend your records accordingly.

App. 133-35.

| In 1993, and subsequently, the Corps offered to issue a

| no jurisdiction letter if the Johnsons hired a Corps’ sug-

gested consultant to perform the ground truth, i.e., deline-

ate the drainage ditch’s scope and effect on land hydrology

under the Corps’ 1982 Regulatory Guidance Letter and the

Corps’ 1987 Manual. App. 123-26. The Corps stated in

: relevant part:

Send a wetland delineation map, based on a de-

lineation conducted according to the 1987 Corps

of Engineers manual. A list of consultants who

have indicated an interest in performing delinea-

tions is enclosed.

App. 125.

The Johnsons accepted the offer in 1995, hired the

expert McCombs Frank Roos Associates (“MFRA”), on the

Corps’ suggested list, who delineated the scope and effect

of the drainage ditch, verified by soil borings and vegeta-

tive survey, and concluded pre-dam dry land. App. 136-52.

The Johnsons’ consideration given was approximately

$35,000 paid to the experts’ and an agreement not to sue

the Corps yet. Nonetheless, the Corps refused to acknowl-

edge it had no jurisdiction prior to the 1996 condemnation

jury trial and has made affirmative as well as passive

misrepresentations along with Shorewood to the contrary

in state court (1991-2000), district court (2000-2003) and

the court of appeals (2002-2004).

In 1996, Ronald Johnson brought suit against the city

of Minnetonka, Johnson v. Minnetonka, No. PD 96013128

(Minn. Dist. Ct. Mar. 14, 1996) alleging that new develop-

ment of the Ashcroft subdivision in Minnetonka had been

diverting storm water on to the Johnsons’ property begin-

ning as early as 1992. App. 120-22. The state court

acknowledged colorable takings claims, but sua sponte

dismissed the action without prejudice for failure to join

necessary parties. App. 121-22.

Ronald Johnson also sued Shorewood in 1999 and

later amended his complaint to add contract claims sound-

ing in Fifth Amendment takings. Johnson v. Shorewood,

Henn. Dist. Ct. No. 99-7447 (Minn. Dist. Ct. Jan. 31,

2000). App. 116-19. The court, citing the prior Minnetonka

case, again dismissed these claims without prejudice. In

the court order, the state court again acknowledged that

Johnson had presented a colorable claim for “unnecessary

and unwarranted” flooding. App. 118.

The Johnsons did not appeal from the state court

dismissals, electing instead — on the state court’s suggestion

* This consideration saved the United States money by not having

to perform the delineation itself.

~ to file the federal district court action in May 2000 giving

rise to the present federal complaint.

Today, the Corps continues to refuse to issue the no

jurisdiction letter. Shorewood and the other defendants

insist that their storm water sewage dump created by

their dam and dumping is still a pre-ownership “Clean

Water Act” wetland when it was not a wet land, but a dry

land. All these events are occurring without the Johnsons

having a reasonable chance at obtaining state court just

compensation for the continuing and increased flooding of

their property because the state courts have no personal

jurisdiction over the Corps and no subject matter jurisdic-

tion over the question of pre-ownership Clean Water Act

wetland determinations.

Prior to the inverse condemnation bench trial, in

response to Johnsons’ Freedom of Information Act (FOIA)

request, counsel for the Corps’ St. Paul District, misrepre-

sented to the Johnsons the Corps’ permit actions files for

the Waterford and Ashcroft projects had been previously

“destroyed.” App. 153-55. However, when the U.S. District

Court twice denied the Johnsons federal defendant discov-

ery on U.S. motions for protective orders and the COFC

deferred Johnsons’ discovery on the United States’ motion

to dismiss or for summary judgment, the Johnsons again

resorted to FOIA discovery over the Corps’ objections. App.

156-58.

In 2002, because Johnsons’ Congressman assisted in

the FOIA process, the Corps produced 1993 and other

documents from its permit action files it asserted in 1993

it had “destroyed.” Jd. One such draft is an internal 1993

Corps’ St. Paul District memorandum copied to its counsel

“OC” in which the Corps stated in reference to Judge

Montgomery’s 1993 order, in part:

However, what do we do if the city is forced to

take out the ditch plug? Also, does the possible il-

legality of the plug affect our jurisdiction in any

way?

pprenstetirsn reer sree: ane RRR ARE TAT SENECA ITS

App. 158. Johnsons’ multiple state court actions likely

would have resulted in monetary taking remedies for

Johnsons if the Corps had timely produced documents

from its permit action files instead of asserting those files

had been “destroyed.””°

In 2001, the U.S. District Court, based on the ZERO

compensation state court final judgment, dismissed the

takings claims against Shorewood, Minnetonka and the

Watershed District and declined to exercise supplemental

jurisdiction over other pendent state law claims. App. 21-

22. Further, the U.S. District Court dismissed the claims

against the United States for want of subject matter

jurisdiction, referred the Johnsons’ takings claim against

the United States to the U.S. Court of Federal Claims and

dismissed the Freedom of Information Act claim based on

statute of limitations grounds. App. 18-49.

Pursuant to the U.S. District Court’s July 11, 2001

order for judgment, App. 18-22, the Johnsons filed a claim

in the U.S. Court of Federal Claims (“COFC”). The COFC

dismissed the complaint, but suggested the Johnsons have

claims actionable in U.S. District Court. App. 51-59. The

Johnsons have appealed from the judgment. App. 59.

- The U.S. Court of Appeals for the Eighth Circuit

affirmed the U.S. District Court decision modifying some

aspects of the decision — including sua sponte inclusion of

the Rooker-Feldman doctrine to justify denial of U.S.

District Court jurisdiction. App. 1-17.

* It was the 2002 FOIA discovery which disclosed, among other

things, that the damming and dumping was never properly permitted

as misrepresented.

REASONS FOR GRANTING THE PETITION

I. The Court Of Appeals Has Decided A Funda-

mental And Important Jurisdictional Question

- That Has Not, But Should Be Decided By This

Court.

The question presented above is an important juris-

dictional issue that the Court has not, but should decide.

The U.S. Supreme Court in Williamson established the

jurisdictional rule that 42 U.S.C. § 1983 jurisdiction for a

taking only exists after the landowner has unsuccessfully

exhausted state judicial remedies for just compensation:

[T]he taking claim is not yet ripe [in] that re-

spondent did not seek compensation through the

- procedures the State has provided for doing so.

The Fifth Amendment does not proscribe the tak-

ing of property; it proscribes taking without just

compensation. Hodel v. Virginia Surface Mining

& Reclamation Assn. Inc., 452 U.S., at 297, n.

40, 101 S.Ct., at 2371, n. 40. Nor does the Fifth

Amendment require that just compensation be

paid in advance of, or contemporaneously with,

the taking; all that is required is that a “‘reason-

able, certain and adequate provision for obtain-

ing compensation’” exist at the time of the

taking. Regional Rail Reorganization Act Cases,

419 U.S. 102, 124-125, 95 S.Ct. 335, 349, 42

L.Ed.2d 320 (1974) (quoting Cherokee Nation v. -

Southern Kansas R. Co., 135 U.S. 641, 659, 10

S.Ct. 965, 971, 34 L.Ed. 295 (1890)). See also

Ruckelshaus v. Monsanto Co., 467 U.S., at 1016,

104 S.Ct., at 2879-2880; Yearsley v. W.A. Ross

Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413,

414, 84 L.Ed. 554 (1940); Hurley v. Kincaid, 285

U.S. 95, 104, 52 S.Ct. 267, 269, 76 L.Ed. 637

(1932). If the government has provided an ade-

quate process for obtaining compensation, and if

resort to that process “yield[s] just compensa-

tion,” then the property owner “has no claim

against the Government” for a taking. Monsanto,

467 U.S., at 1013, 1018, n. 21, 104 S.Ct., at 2878,

2881, n. 21. Thus, we have held that taking

claims against the Federal Government are pre-

mature until the property owner has availed it-

self of the process provided by the Tucker Act, 28

U.S.C. § 1491. Monsanto, 467 U.S., at 1916-1020,

104 S.Ct., at 2880-2882. Similarly, if a State pro-

vides 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

compensation.

Williamson it 194-95 (emphasis added). But, this Court

has never Cefined under what circumstances 42 U.S.C.

§ 1983 jur.sdiction exists for landowners who claim a

violation of the Just Compensation Clause because they

received a state court final judgment awarding ZERO

compensation for a previously-adjudicated taking. Is it

true as suggested in Williamson that access to the U.S.

District Court is available if the landowners have been

“denied just compensation”? Compare Del Monte Dunes,

920 F.2d at 1507 (“California’s compensation procedures

were inadequate when the aileged taking occurred, and

appellants have established the ripeness of tne compensa-

tion component of their regulatory taking claim.”).

The court of appeals answered “no” to these important

and fundamental jurisdictional questions left unanswered

by Williamson by sua sponte application of the Rooker-

Feldman doctrine which requires federal courts to defer to

state court judgments. App. 15; District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 483 (1983); Rooker v.

Fidelity Trust Co., 263 U.S. 413, 416 (1923).

The Johnsons argue below that the court of appeals

decision contradicts a series of U.S. Supreme Court man-

dates. First, this Court in Teleprompter held that the

federal Fifth Amendment requires categorically that all

physical occupation takings be compensated. This Court

concluded “that a permanent physical occupation author-

ized by government is a taking without regard to the

public interests that it may serve.” Id., 458 U.S. at 426.

This Court in Lucas re-stated the same prin iple, “In

general (at least with regard to permanent invasions), no

matter how minute the intrusion, and no matter how

weighty the public purpose behind it, we have required

compensation.” Jd., 505 U.S. at 1015-16 (1992) (citations

omitted) (emphasis added). The Court in Palazzolo again

re-stated the principle, “The clearest sort of taking occurs

when the government encroaches upon or occupies private

land for its own proposed use. Our cases establish that

even a minimal ‘permanent physical occupation of real

property’ requires compensation under the Clause.” IZd.,

533 U.S. at 617 (emphasis added).

Consistent with these U.S. Supreme Court mandates,

the state court in 1993 found that Johnsons had prevailed

in an inverse condemnation proceeding, were entitled to

7 Fifth Amendment just compensation and ordered the

following:

: 1. The City of Shorewood shall immediately

commence condemnation proceedings for the

purpose of compensating the Johnsons for all

damages which arise out of, and reasonably re-

late to, the taking by the City of the Johnsons’

property.

: Johnson v. City of Shorewood, No. 91-18099, at 4 (Minn.

{ Dist. Ct., Aug. 17, 1993, Findings of Fact, Conclusions of

Law and Order for Judgment) (Hennepin County District

Court Judge Ann D. Montgomery) (emphasis added). App.

: 101.

But, inconsistent with the U.S. Supreme Court man-

dates, the state court in the subsequent condemnation

proceeding vacated the takings award leaving Johnsons

with ZERO compensation for the previously-adjudicated

permanent physical taking. App. 67. The court’s ZERO

rationale, as explained above in the statement of the case,

was based on the affirmative misrepresentations in state

court by Shorewood and the Corps of a non-existent, pre-

ownership Clean Water Act wetland and the Johnsons’

continual “clean up” after each and every flood event —

events Judge Montgomery in 1993 concluded constituted a

taking. App. 69-85, 123-32." The former ZERO award also

contradicted the jury’s verdict which was $2,000 — much

more than nothing.

Despite these facts, the court of appeals stated the

following as to the application of the Rooker-Feldman

doctrine: M

The Johnsons argue that they were denied just

compensation due to “rmisrepresentations” perpe-

trated in the state court proceedings — misrepre-

sentations which they allegedly discovered after

the fact. Whatever the validity of these allega-

tions, Rooker-Feldman stands as a bar to federal

review because the Johnsons’ requested relief

“would effectively reverse the state court decision

or void its ruling.” Bechtold v. City of Rosemount,

104 F.3d 1062, 1065 (8th Cir. 1997). The John-

sons’ remedy, if any, is to return to state court and

utilize its procedures for remedying fraud. See

Johnson v. Smithsonian Institution, 189 F.3d

180, 186-187 (2nd Cir. 1999). If the state courts

deny relief, the Johnsons may seek review by the

United States Supreme Court.

App. 15. (Emphasis added.) The court of appeals states

that Johnsons’ federal Fifth Amendment right for post-

deprivation just compensation for a previously-adjudicated

taking is not automatic. The Johnsons must now prove

fraud — not just the physical taking they already have

proven. Id.

” Since 1995, the Johnsons have continued to clean up after every

“major storm event” — more frequent flooding now because of new,

recent, adjoining developments — without compensation.

DOP LA RAS ASAP BIDAR at SG 8B AE vik

GLNB SNe ot RTI aes Shae Sh

The court of appeals’ decision does not comport with

Williamson and the categorical requirement of compensa-

tion for physical takings expressed in Teleprompter, Lucas

and Palazzolo. For all intents and purposes, the court of

appeals’ decision blocks the Johnsons from obtaining the

constitutionally-required just compensation. The Johnsons

can not pursue their Just Compensation Clause claims in

state court because Minnesota’s inadequacy of post-post-

deprivation procedures. Why must the Johnsons have to

prove fraud to be paid federally-required Just compensation

for a previously-adjudicated physical taking? The court of

appeals’ decision invites circuitous proceedings — circui-

tous proceedings never suggested by this Court in Wil-

liamson, Teleprompter, Lucas and Palazzolo.

Further, the Johnsons have not received their no-

jurisdiction letter from the Corps, so the Corps’ misrepre-

sentations will be continued in state court, a court with no

personal jurisdiction over the Corps or subject matter

jurisdiction over Clean Water Act wetland determinations.

Sending the Johnsons back to state court is futile — equiva-

lent to saying the Johnsons are entitled to no federal Fifth

Amendment compensation (ZERO) at all, never.

Moreover, the Johnsons do not ask the federal courts

to review a state court decision as the court of appeals

suggests. App. 14-15. This case involves a state court

facial, per se violation of the federal right to just compen-

sation. The U.S. District Court need not review the state

court's work because ZERO is facially, per se inadequate.

The U.S. District Court would simply ignore the state

decision, start over and calculate just compensation

because the state court awarded the Johnsons nothing for

the land adjudicated as taken.

As explained in the statement of the case, the per se

violation was the result of a collaborative fraud by Shore-

wood and the U.S. Corps of Engineers on the state court

regarding fictional pre-ownership Clean Water Act wet-

lands based on phony National Wetland Inventory map

without required ground truth. This type of fraud is

probably commonplace across the United States — and

takes advantage of a federal-federal-state jurisdictional

split — is important and is a problem that only this Court

can resolve.” ;

For these reasons, the Court should consider the

important and fundamental jurisdi:tional question pre-

sented above.

II. The U.S. Court Of Appeals’ Decision Is In Con-

flict With The Decision Of The Ninth Circuit In

Del Monte Dunes v. Monterey Which Held 1983

Jurisdiction If State Procedures For Compen-

sating Takings Were Inadequate.

The court of appeals’ decision conflicts with the U.S.

Court of Appeals for the Ninth Circuit decision in Del

Monte Dunes. In that case, the Ninth Circuit held that

federal jurisdiction existed when state court post-

deprivation procedures were inadequate. Califernia state

courts at the time did not recognize a compensatory

remedy (only injunctions) for temporary regulatory tak-

ings. The Ninth Circuit held that Williamsen did not

prevent federal jurisdiction in that proceeding: ,

After appellants filed this action, the Supreme

Court expressly held that the Fifth Amendment

requires states to compensate regulatory takings.

See First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304, 317-22,

107 S.Ct. 2378, 2387-90, 96 L.Ed.2d 250 (1987).

The Court’s decision in First English is irrelevant

to the ripeness inquiry here, however, because

* Based on its NWI map, the Corps repeatedly tried to coerce the

Johnsons into believing their land had CWA wetland. The Johnsons

discovered in 1996-1997 that merely 10% of area lands so mapped had

ever been ground truthed to determine whether wetlands were in fact

present.

jee Hie ree alee agli st BEDE

the time at which the taking occurs is the appro-

priate period for measuring the adequacy of a

state’s compensation procedures. Hoehne v.

County of San Benito, 870 F.2d 529, 533-34 (9th

Cir. 1989); Sinaloa Lake Owners Ass’n v. City of

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

cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108

L.Ed.2d 493 (1990). See also Williamson County,

473 U.S. at 194, 105 S.Ct. at 3121 (“all shat is re-

quired is that a reasonable, certain and adequate

provision for obtaining compensation exist at the

time of the taking”) (internal quotations omitted).

When the City rejected appellants’ last develop-

ment application, California law did not permit

landowners to seek compensation for a regula-

tory taking through an action in inverse con-

demnation; their sole remedy was to seek

invalidation of the offending regulations through

mandamus or injunctive relief. See Agins v. City

of Tiburon, 24 Cal.3d 266, 274-78, 157 Cal.Rptr.

372, 376-78, 598 P.2d 25, 29-31 (1979), aff’d on

other grounds, 447 U.S. 255, 100 S.Ct. 2138, 65

L.Ed.2d 106 (1989), abrogated by, First English,

482 U.S. 304, 107 S.Ct. 2378 (1987). As a result,

California’s compensation procedures were in-

adequate when the alleged taking occurred, and

appellants have established the ripeness of the

compensation component, of their regulatory tak-

ing claim. Because both the taking and compen-

sation elements are ripe, we reverse the district

court’s dismissal of that claim.

Del Monte Dunes, 920 F.2d at 1507.

The Johnson case is similar. California at the time of

the Del Monte Dunes case did not provide the landowners

a compensatory remedy as a matter of law. The Minnesota

courts and defendants have not provided the Johnsons a

compensatory remedy as a matter of fact. As the court of

appeals’ decision states, “[t]he state court vacated the

$2,000 takings award” — leaving the Johnsons with ZERO

for the previously-adjudicated physical taking. The deci-

sion in Del Monte Dunes supports U.S. District Court

jurisdiction in the Johnson case.

The court of appeals’ decision directly conflicts with

Del Monte Dunes. The court of appeals gives no weight to

the fact Johnsons received ZERO compensation from the

state court and have only post-post-deprivation fraud

procedures in state court to get paid. See Minn. R. Civ.

Proc. 60.02. The court of appeals states that federal

courts (except the U.S. Supreme Court in appeals from

state supreme courts) have no role whatsoever after a

state court awards ZERO compensation for a previously-

adjudicated physical taking.

The Johnsons agree with the court in Del Monte

Dunes that 42 U.S.C. § 1983 provides jurisdiction for a

federal Fifth Amendment just compensation claim when a

state court provides ZERO compensation for a taking — as

a matter of law or as a matter of fact. The court of appeals

disagrees. This Court should resolve the conflict among

the circuit courts of the J.S. Court of Appeals.

III. The Court Of Appeals’ Decision Is In Conflict

With The Decisions Of The Other Circuits

Which Have Held 1983 Jurisdiction Despite

Rooker-Feldman Doctrine If Federal Plaintiff

Did Not Have Reasonable Opportunity To

Bring Claim In State Court Proceeding.

The court of appeals’ decision based on the Rooker-

Feldman doctrine conflicts with the limitation on Rooker-

Feldman doctrine that the doctrine only applies when the

federal plaintiff had a reasonable opportunity to present

his or her claims in state court. This limitation on the

applicability of Rooker-Feldman was first set forth in Wood

v. Orange County, 715 F.2d 1543 (11th Cir. 1983):

The [Rooker-Feldman doctrine] can apply only

where the plaintiff had a reasonable opportunity

to raise his federal claim in state proceedings.

inte REY AIOE ATR BAB Pts? owe

Where the plaintiff has had no such opportunity,

he cannot fairly be said to have “failed” to raise

the issue. Moreover, an issue that a plaintiff had

no reasonable opportunity to raise cannot prop-

erly be regarded as part of the state case. In

Feldman’s language, the issue that such a plain-

tiff asks the federal court to decide is not “inex-

tricably intertwined” with the state court’s

judgment. As a result, the federal district court’s

jurisdiction does not trench on the exclusive au-

thority of the Supreme Court to review state

court decisions for errors of federal law.... Fi-

nally, interpreting Rooker to preclude a federal

district court from considering an issue that the

plaintiff had no reasonable opportunity to raise

in state court might pose due process problems.

Such a harsh rule might deprive the plaintiff

from any forum, state or federal, where he has a

reasonable opportunity to present his federal

constitutional claims, a result arguably contrary

to the requirements of due process.

Id. at 1547. The court of appeals in Wood held that the

Rooker-Feldman doctrine and res judicata did not preclude

plaintiffs’ suit in federal district court challenging the

validity of the liens where plaintiffs lacked a reasonable

opportunity to litigate the claims in the state court pro-

ceedings. Id.

In Long, the Seventh Circuit applied the “reasonable

opportunity to litigate” limitation and found federal

jurisdiction despite Rooker-Feldman doctrine when the

plaintiff did not have a reasonable opportunity to litigate

his Section 1983 claims in the related state court proceed-

ing. The Seventh Circuit recognized that the federal

plaintiff could not reasonably have been expected to

litigate plaintiff’s federal claims in the state court pro-

ceeding:

... there has been absolutely no showing that a

defendant has ever asserted the rights provided

for in the FDCPA [Fair Debt Collections Practices

Act] as an affirmative defense or brought a coun-

terclaim under this statute in a forcible entry

and detainer action in Illinois. It is likely that

Long’s claims for damage under the FDCPA and

Section 1983 would not have been germane to

the forcible entry and detainer action brought by

defendants.

Long, 182 F.3d at 559-60. See also Biddulph v. Mortham,

89 F.3d 1491, 1495 n. 1 (11th Cir. 1996) (concluding that

state court denial of mandamus relief on the same claims

raised by plaintiff precluded applicability of Rooker-

Feldman doctrine because plaintiff did not have a reason-

able opportunity to raise his federal claim in the manda-

mus proceeding); Robinson v. Ariyoshi, 753 F.2d 1468,

1472-73 (9th Cir. 1985) (concluding that Rooker-Feldman

was inapplicable to plaintiff’s federal claims because the

Hawaii Supreme Court refused to consider these claims

during the plaintiff’s state court proceedings), vacated on

other grounds, 477 U.S. 902, 106 S.Ct. 3269, 91 L.Ed.2d

560 (1986).

Johnsons’ case is similar to the facts in Wood, Long

and these other cases. The Johnsons could not have

reasonably litigated the federal question of pre-ownership

Clean Water Act wetland determination in the 1996 state

court proceeding. First, the state court did not have

personal jurisdiction over the Corps and federal courts are

the court of review for Corps’ Clean Water Act wetland

determinations — not state courts. Second, Judge Mont-

gomery in her 1993 order expressly reserved the wetland

designation as disputed and for later determination. App.

97, findings of fact no. 3. Third, in the subsequent con-

demnation proceeding, the state court judge erroneously

excluded evidence contrary to a pre-ownership Clean

Water Act wetland under the doctrine of collateral estop-

pel. App. 90. Fourth, under these circumstances, the trial

testimony of Shorewood expert Ronald Peterson interpret-

ing the Corps’ letters determining a pre-ownership Clean

Water Act wetland on the Johnsons’ property was unas-

sailable. Fifth, the Respondents misled the Johnsons as to

—

ae ee er at SR rE ee SR Sete =

the accuracy and efficacy of the National Wetland Inven-

tory maps. Sixth, the Johnsons had no right to appeal in

state court from the Corps’ pre-ownership wetland

determination presented in state court. For these reasons,

the Johnsons never had a _ reasonable opportunity to

litigate their Just Compensation Clause claims in state

courfhe court of appeals’ decision conflicts with the

“reasonable opportunity to litigate” limitation recognized

by these other circuits. The court of appeals’ opinion offers

no analysis as to whether the Johnsons had a reasonable

opportunity to litigate their claims in state court. Any

analysis of the Johnsons’ problems in state court would

have led to a conclusion the Johnsons had no reasonable

opportunity to litigate the issue of pre-ownership Clean

Water Act wetlands in state court. But, the court of

appeals did not analyze the issue like the other circuits do.

The Johnsons agree with the federal courts that have

held that the Rooker-Feldman doctrine does not prevent

jurisdiction when the federal plaintiffs do not have a

reasonable opportunity to litigate the claims in the related

state court proceeding. The court of appeals disagrees. See

also Gisslen v. City of Crystal, 345 F.3d 624 (8th Cir, 2003),

pet. for writ of cert. denied (No. 03-1141 2004); Lemonds v.

St. Louis County, 222 F.3d 488 (8th Cir. 2000). The

Johnsons believe this Court should resolve this conflict

among the circuit courts of the U.S. Court of Appeals.

IV. Federal Jurisdiction In This Case Would Be

Only A Narrow Exception To The Rooker-

Feldman Doctrine And Provides A Useful

Guidepost For Both Federal And State Courts

In Future State Court Proceedings.

The Johnsons are asking the U.S. Supreme Court for

only a narrow exception to the Rooker-Feldman doctrine

as it applies to state court condemnation proceedings. The

exception can be stated in one sentence and is consistent

with the Court’s Williamson opinion:

If a state court awards ZERO compensation as a

federal Fifth Amendment just compensation

remedy for a previously-adjudicated physical tak-

ing of land, then 42 U.S.C. § 1983 jurisdiction ex-

ists for a violation of the Just Compensation

Clause.

Accord, Williamson, 473 U.S. at 194-95. No Pandora’s Box

of redundant federal re-litigation of taking claims is

opened because the exception is limited to when a state

court commits an obvious, defined facial per se constitu-

tional tort.

The U.S. Supreme Court decision would be a useful

guidepost to state courts and federal courts in future

proceedings. The decision would indicate to the state

courts that federal Fifth Amendment just compensation

requires more than ZERO to be paid to the landowner for

the property adjudicated as physically taken = and worth

more than ZERO as the jury determined herein. The

decision would also indicate to the federal courts when

state courts award ZERO federal Fifth Amendment

compensation for a previously-adjudicated physical taking,

42 U.S.C. § 1983 jurisdiction exists. This result is not only

mandated by the U.S. Constitution’s Just Compensation

Clause and the text of 42 U.S.C. § 1983, but also by com-

mon sense.

CONCLUSION

For these reasons, the petition should be granted.

Respectfully submitted,

ERICK G. KAARI. an

ERIC L. LIPMAN

MOHRMAN & KAARDAL, P.A.

33 South Sixth Street, Ste. 4100

Minneapolis MN 55402

612-341-1074

Counsel for the Petitioners

App. 1

United States Court of Appeals

| FOR THE EIGHTH CIRCUIT

No. 02-3562

Ronald Richard Johnson;

Dee Lundberg Johnson,

Plaintiffs/Appellants,

City of Shorewood, Minnesota;

City of Minnetonka, Minnesota,

and its Mayor in her official capac-

ity; Riley-Purgatory-Bluff Creek

Watershed District, and the Chair

of its Board of Managers in his

official capacity; Trivesco,

a partnership, and its partners;

Robert H. Mason, Inc., a corpora-

tion; Highland Properties, Inc., a

corporation; Steiner & Koppelman,

Inc., a corporation; Highland Villa

Builders Inc., a corporation;

United States of America; Corps of

Engineers, being sued as the Corps

of Engineers of the United States;

Louis Caldera, The Honorable,

Secretary of the United States Army

in his/her official capacity or his

successor; Joseph N. Ballard, Lt.

General, the Commander-in-Chief of

the Corps of Engineers of the United

States in his/her official capacity,

Appeals from the

United States

District Court for

the District of

Minnesota.

* * €£ © # ® 8 HF HH HB HE HE HF HF HE HK HE KE KH HE KHER RN OX

Defendants/Appellees.

App. 2

No. 02-4081

Ronald Richard Johnson;

Dee Lundberg Johnson,

Plaintiffs/Appellees,

City of Shorewood, Minnesota;

Defendant/Appellant,

City of Minnetonka, Minnesota,

and its Mayor in her official capacity;

Riley-Purgatory-Bluff Creek

Watershed District, and the

Chair of its Board of Managers in

his official capacity; Trivesco,

a partnership, and its partners;

Robert H. Mason, Inc., a corporation;

Steiner & Koppelman, Inc., a corpora-

tion; United States of America;

Corps of Engineers, being sued as

the Corps of Engineers of the United

States; Louis Caldera, The Honorable,

Secretary of the United States Army

in his/her official capacity or his

successor; Joseph N. Ballard, Lt.

General, the Commander-in-Chief

of the Corps of Engineers of the

United States in his/her official

capacity; Highland Properties, Inc.,

a corporation; Highland Villa

Buiiders, !nz., a corporation,

Defendants/Appellees.

*eetxt*=F* F&F FFF HE HH He HEH HH FM® KF OHHReiHRNXRe~iRXHEMWwiMwNR iH SF

}

‘

App. 3

No. 03-2023

Ronald Richard Johnson;

Dee Lundberg Johnson,

Plaintiffs/Appellants,

City of Shorewood, Minnesota;

and its Mayor in her official capac-

ity; City of Minnetonka, Minnesota,

and its Mayor in her official capac-

ity; Riley-Purgatory-Bluff Creek

Watershed District, and the Chair

of its Board of Managers in

his official capacity; Trivesco,

a partnership, and its partners;

Robert H. Mason, Inc., a corpora-

tion; Highland Properties, Inc., a

corporation; Steiner & Koppelman,

Inc., a corporation; Highland

Villa Builders Inc., a corporation;

United States of America; Corps of

Engineers, being sued as the Corps

of Engineers of the United States;

The Honorable Louis Caldera,

Secretary of the United States Army

in his/her official capacity or his

successor; Lt. General Joseph N.

Ballard, the Commander-in-Chief of

the Corps of Engineers of the United

States in his/her official capacity,

Defendants/Appellees.

* * *¥ *¥ * *€& ¥ & HF %¥ ¥ ¥ ¥ HF HH HK KH KK HK HK KKH RX & RK HR

Appeals from the

United States

District Court for

the District of

Minnesota.

App. 4

Submitted: December 18, 2003

Filed: March 5, 2004

Before LOKEN, Chief Judge, WOLLMAN, and HANSEN,

Circuit Judges.

WOLLMAN, Circuit Judge.

This appeal represents the continuation of Ronald and

Dee Johnson’s multi-year litigation over a 20-acre parcel of

land they own in Hennepin County, Minnesota. After

pursuing several state court actions during the 1990s, the

Johnsons brought this suit in federal court against the

cities of Shorewood and Minnetonka, Minnesota, the

Riley-Purgatory-Bluff Creek Watershed District (Water-

shed District), various private real estate developers, and

the United States of America (acting through the Army

Corps of Engineers and certain Army officials). The John-

sons assert a multitude of federal and state claims, but

their primary allegation is that the appellees have, indi-

vidually and in concert, effected various regulatory and

physical takings of their property and conspired to prevent

them frem receiving just compensation. Adopting a series

of reports and recommendations by a magistrate judge,

' Trivesco (a partnership); Robert H. Mason Homes, Inc.; Highland

Properties, Inc.; and Steiner & Koppelman, Inc.

* The Honorable Susan Richard Nelson, United States Magistrate

Judge for the District of Minnesota.

;

App. 5

the district court’ dismissed the claims against the United

States for want of subject matter jurisdiction and on

statute of limitations grounds, granted summary judg-

ment to the remaining defendants, and declined to exer-

cise supplemental jurisdiction over the pendent state law

claims.“ The Johnsons appeal each of these decisions, as

well as certain discovery rulings and the decision denying

: them leave to submit a third amended complaint. Shore-

wood cross-appeals, arguing that the district court should

have found certain claims barred by res judicata. We

affirm in all respects, albeit on slightly differert grounds

with respect to some of the claims.

ATS ORL Rie RS Ta bats Bir

The subject property, which the Johnsons purchased :

in 1981, is located within the city of Shorewood. It consists

of three wooded knolls separated by a flat, centrally

located field. The field is diagonally bisected by a drainage

ditch running from the northeast corner to the southwest

; corner. Before 1984, water ran through the ditch and

headed south from the Johnson property, ultimately

emptying into Purgatory Creek. In 1980, prior to the

Johnsons’ purchase, the field was designated as a wetland

* The Honorable Donovan W. Frank, United States District Judge

for the District of Minnesota.

* After summary judgment had been entered, the district court

allowed Johnson to submit two affidavits that had not been made part

of the summary judgment record. After reviewing the affidavits, the

district -ourt concluded that it was not necessary to vacate the prior

orders.

App. 6

on the National Wetland Inventory Map issued by the

United States Fish and Wildlife Service.’

After the Johnsons purchased the property, Trivesco

began developing land to the south and west. Dubbed

“Waterford,” the resulting subdivision required the iastal-

lation of roads and utilities. In 1984, Shorewood obtained

the consent of the United States Army Corps of Engineers

to install the roads and utilities under an existing Clean

Water Act Permit that authorized the filling of “headwa-

ters wetlands.” The Watershed District issued permits for

the work.

Shorewood constructed a road berm, culvert, and

pond-control structure along the southern boundary of the

Johnson property. The pond-control structure raised the

bottom of the drainage ditch above its original elevation

and created a vond near the southern boundary of the

Johnson property. Based on the design of the pond-control

structure, the Watershed District designated = 100-year

storm event flood plain at an elevation of 917.1 feet above

sea level and prohibited construction at elevations lower

than 919.1 feet. Johnson v. City of Shorewood, No. 91-

12099, at 4 (Minn. Dist. Ct., Aug. 17, 1993, Findings of

Fact, Conclusions of Law, and Order For Judgment).

The Johnsons commenced state court itigation

against Shorewood in 1991, alleging inverse condemnation

under both the federal and Minnesota constitutions. The

state court determined that the flood plain restrictions did

not constitute a regulatory taking, but concluded that the

* The Johnsons contest the validity of this designation.

aR Re aE ENTER RE RR El PLDT ri he at RS WPS

Vike iton,

App. 7

pond and associated contr * structure had physically taken

the Johnsons’ property up to 914 feet above sea level

because the pond would rise to that elevation during

“major storm events.” Jd. at 5. Accordingly, the state court

issued a writ of mandamus compelling Shorewood to

commence condemnation proceedings for the purpose of

acquiring a drainage easement on the Johnsons’ property

up to 914 feet above sea level. Id. The Minnesota Court of

Appeais atfirmed this judgment. Johnson v. City of Shore-

wood, No. CX-93-2452 (Minn. Ct. App. May 11, 1994),

review denied, (Minn. July 15, 1994).

Shorewood instituted condemnation proceedings and

awarded the Johnsons $2,000 for the easement and $3,000

for “cost to cure” damages. Not satisfied with the award,

the Johnsons brought a second state court action, this one

challenging the scope of the taking and the amount of the

award. The state court held that the Johnsons were

collaterally estopped from re-litigating the scope of the

taking® and submitted the valuation issue to a jury. The

jury awarded the Johnsons $2,000 for the taking and

$63,000 for clean-up costs. The state court vacated the

$2,000 takings award, however, in light of the jury’s

* In the first action, the Johnsons challenged certain conditions

that Shorewood had placed on the plat approval of Johnson property,

and although the record does not precisely disclose what was argued at

the first trial, the second siate court found as follows: “[B]ecause the

issue concerning the pre-ownership wetland designation relating to the

Property, and the issue concerning the City’s conditions for plat

approval, were already adjudicated [in the first state proceeding] ...

upon a motion for summary judgment, the doctrine of collateral

estoppel! clearly precludes the introduction of evidence or argument [to

the) ... contrary.” City of Shorewood v. Johnson, No. CD-2344, at 5

(Minn. Dist. Ct., Oct. 10, 1996, Memorandum and Order).

App. 8

finding that the taking had not diminished the market

value of the Johnsons’ land. Although both parties ap-

pealed, the Johnsons did not contest the amount of the

award. The Minnesota Court of Appeals affirmed the

judgment, holding that the $63,000 award was appropri-

ate because the value of the Johnsons’ property would

have been diminished absent clean-up of debris caused by

the flooding. City of Shorewood v. Johnson, No. C5-97-

1525, 1998 WL 188561, at * 1 (Minn. Ct. App. April 21,

1998).

In 1996, the Johnsons brought suit against the city of

Minnetonka, alleging that development of the Aschcroft

subdivision in Minnetonka had been diverting storm water

on to the Johnsons’s property since as early as 1992. The

state court dismissed the action without prejudice for

failure to join necessary parties. The Johnsons did not

appeal from the dismissal, electing instead to file the

federal district court action giving rise to the present

appeal.

The Johnsons’s second amended complaint spans fifty-

five pages and includes twenty-three counts. It alleges

numerous constitutional violations stemming from regula-

tory and physical takings of the Johnson property from at

least 1984 to the present,’ and alleges a conspiracy to

accomplish the takings anc to prevent the Johnsons from

receiving compensation. Tk» complaint also alleges a

’ For example, shortly after the Johnsons filed their initial

complaint, Shorewood allegedly extended a public fence and walking

trail onto the eastern boundary of the Johnsons’s property and buried

fiber optic cables parallel with the adjacent road. The Johnsons’ second

amended complaint identifies this action as an uncompensated taking.

Reise te ere at

App. 9

violation by the United States of the Freedom of Informa-

tion Act (FOIA) and includes a battery of pendent state

law claims for, inter alia, breach of contract, promissory

estoppel, fraud, misrepresentation, negligence, and in-

verse condemnation.

II.

A. Claims Against The United States

The district court concluded that it lacked subject

matter jurisdiction over the Johnsons’s takings claims

against the United States. Having reviewed the dismissal

de novo, Lemonds v. St. Louis County, 222 F.3d 488, 492

(8th Cir. 2000), we agree. The United States Court of

Federal Claims has exclusive subject matter jurisdiction

over takings claims against the United States that exceed

$10,000 in amount. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1);

Eastern Enterprises v. Apfel, 524 U.S. 498, 520 (1998);

Mullally v. United States, 95 F.3d 12, 14 (8th Cir. 1996).

The Johnsons clearly sought damages in excess of $10,000,

and they have in fact filed takings claims against the

United States in the Court of Federal Claims.

Nevertheless, the Johnsons suggest that dismissal of

their takings claims violates their right to a jury trial

under the Seventh Amenament. This argument fails,

however, because parties are not entitled to a jury trial in

most actions against the United States, see 28 U.S.C.

§ 2402, a limitation that derives from the sovereign power

of the United States to limit when and how it may be sued.

See United States v. Sherwood, 312 U.S. 584, 587 (1941);

United States v. Kearns, 177 F.3d 706, 709 (8th Cir. 1999).

The district court also granted summary judgment on

the Johnsons’ FOIA claim on the ground that it was barred

Ap. 10

by the applicable statuce of limitations. The Johnsons

assert on appeal that the United States is estopped from

asserting the statute of limitations defense because it

“fraudulently” stated that it had destroyed certain docu-

ments when in fact it had not. This contention was not

raised in the district court, however, and so we will not

consider it on appeal. Orion Financial Corp. v. American -

Foods ‘Froup, Inc., 281 F.3d 733, 740 (8th Cir. 2002).

In any event, the claim would be moot because we

could not grant the relief the Johnsons seek. Cf. Doe v.

Pulaski County Special School Dist., 306 F.3d 616, 621

(8th Cir. 2002) (en banc) (“[A]n appeal must be dismissed

as moot when our decision will have no ‘effectual relief

whatever to a prevailing party.” (citation omitted)). The

Johnsons do not argue that the United States should

release any particular information or documents under

FOIA, but instead suggest that the FOIA violation would

have lea to discovery of evidence that would have allowed

them to recover just compensation in the state court

proceedings. They claim that they can therefore assert

“tort claims” against the United States. FOIA, however, is

a comprehensive scheme that provides for injunctive relief

only, not tort liability or damages, see 5 U.S.C.

§ 552(a)(4)(B) (delineating the powers of the district court

on proof of a FOIA violation), and thus the Johnsons could

not recover tort damages based on a FOIA violation. See

Johnson v. Executive Office for U.S. Attorneys, 310 F.3d

771, 777 (D.C. Cir. 2002).

In a related vein, counsel for the Johnsons suggested

at oral argument that the Johnsons still possess viable

claims against the United States under the Administrative

Procedure Act (APA), 5 U.S.C. §§ 701 et seg., and for a “per

se constitutional tort” because unidentified federal agents

ee ee aa —_

App. 11

“misrepresented” that the Johnsons’ property was a

federal wetland in the state litigation and thereby dimin-

ished the jury’s valuation judgment. Putting aside the

question of the validity of these theories of recovery, they

do not appear in the governing pleadings and were never

properly raised before the district court, and so we will not

consider them. The second amended complaint is devoid of

references to the APA, does not request review of any final

agency action, fails to mention Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971), and does not specify

constitutional violations by federal officials that are

distinct from the takings claims over which the district

court lacked jurisdiction.®

B. Claims Against The Remaining Defendants

In adopting the magistrate judge’s recommendations,

the district court found that the Johnsons had not pro-

duced evidence of a conspiracy sufficient to survive sum-

mary judgment on their claim under 42 U.S.C. § 1985. The

court also granted summary judgment on the Johnsons’

claims under 42 U.S.C. § 1983, adopting the magistrate

judge’s reasoning that those claims “were either fully

litigated in the earlier state court proceedings or are not

ripe because they have not been presented to the state

* The Johnsons have repeatedly raised new issues throughout the

course of this litigation. They never pleaded the alleged violations of

environmental laws that appear in the statement of issues in the

opening paragraphs of their brief, nor the allegations of First Amend-

ment violations. The same is true of the alleged trespasses and property

damage committed by the federal defendants during the summer of

2002, and the additional FOIA violations mentioned in the Johnsons’

reply brief.

App. 12

court.” Magistrate Judge’s Recommendation of May 3,

2001, at 5. Having reviewed the grant of summary judg-

ment de novo, applying the same standard as that applied

by the district court, Evergreen Investments, LLC v. FCL

Graphics, Inc., 334 F.3d 750, 753 (8th Cir. 2003), we

conclude that the district court did not err in granting

summary judgment.

A successful claim under 42 U.S.C. § 1985 requires

evidence of a conspiracy to deprive a plaintiff of civil

rights. See Jensen v. Henderson, 315 F.3d 854, 862 (8th

Cir. 2002). On summary judgment, then, it was the John-

sons’ burden to advance some “facts which would suggest

that appellees reached an understanding to violate [the

Johnsons’] rights.” Id. (citing Larson v. Miller, 76 F.3d

1446, 1454 (8th Cir. 1996)). From our review of the volu-

minous record,’ including an affidavit by the former mayor

of Shorewood, we agree that the Johnsons failed in this

endeavor. The record and the Johnsons’ appellate briefs

are replete with speculation regarding a conspiracy, see

e.g., Marquez v. Bridgestone/Firestone, Inc., 353 F.3d

1037, 1038 (8th Cir. 2004) (per curiam), but nowhere do

the Johnsons point to specific facts tending to show an

illicit agreement among the defendants. It is not a court’s

obligation to search the record for specific facts that might

support a litigant’s claim, see Crossley v. Georgia-Pacific

Corp., No. 03-2320, 2004 WL 99022, at *1 (8th Cir. Jan.22,

2004) (per curiam), and we are not disposed to undertake

such a task in this case.

* We have considered the affidavits that were originally omitted

from the summary judgment record.

PE i nd BK tI

App. 13

At most, the Johnsons’ evidence suggests that the

United States, the Watershed District, the municipal

defendants, and the private developers worked together on

various development projects and communicated with each

other, but this alone is insufficient to generate a genuine

issue of material fact regarding the existence of a conspir-

acy. This lack of evidence also dooms for want of state

action the Johnsons’ federal claims against the private

developers under 42 U.S.C. § 1983. See Johnson v. Out-

board Marine Corp., 172 F.3d 531, 536 (8th Cir. 1999). As

for the 42 U.S.C. § 1983 claims against Shorewood, Minne-

tonka, and the Watershed District, we agree that “the

record does not show the existence of any potential consti-

tutional violation ... other than the alleged taking of the

Johnsons’ property without just compensation.” Magis-

- trate Judge’s Recommendation of May 3, 2001, at 5 n 2.

The United States Supreme Court has ruled that

takings claims are not ripe for adjudication in federal

court unless and until they have been exhausted in state

administrative and judicial proceedings. See Williamson

County Reg’l Planning Comm. v. Hamilton Bank, 473 U.S.

172, 195 (1985) (Williamson County) (concluding 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 proce-

dures provided by the State for obtaining such compensa-

tion.”). Moreover, federal courts give full faith and credit to

state court judgments, see 28 U.S.C. § 1738; Mitra v.

Warren City Sch. Dist. Bd. Of Educ., 465 U.S. 75, 81

(1984), and a state judgment on the merits is binding

absent a grant of certiorari from the United States Su-

preme Court or the existence of a statute providing for

App. 14

federal review of the state decision. See, e.g., 28 U.S.C.

§ 2254.

Finally, because the United States Supreme Court

alone has jurisdiction to review state court decisions, the

lower federal courts lack subject matter jurisdiction to

consider federal claims that would vitiate an underlying

state court judgment. Lemonds, 222 F.3d at 492; see also

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 483 (1983); Rooker v. Fidelity Trust Co., 263 U.S.

413, 416 (1923). With the limited exception of habeas

corpus actions, this principle, known as the Rooker-

Feldman doctrine, applies whenever a federal claim would

succeed only “to the extent that the state court wrongly

decided the issues before it.” Simes v. Huckabee, 354 F.3d

823, 827 (8th Cir. 2004) (quoting Pennzoil Co. v. Texaco,

Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring)).

Unlike collateral estoppel, the Rooker-Feldman doctrine

does not necessarily depend upon an identity of parties or

claims between the state and federal litigation, and

because the doctrine is jurisdictional, it may be raised sua

sponte. Lemonds, 222 F.3d at 492-93.

Many of the Johnsons’ claims call upon us to consider

issues identical to those on which the Johnsons have

_ already obtained a state court decision, especially as

against Shorewood. Although the district court mentioned

our decision in Lemonds, it disposed of claims actually

litigated in the state court cases under principles of

collateral estoppel. We believe the problem is more funda-

mental. To the extent the Johnsons’ alleged constitutional

injury stems from claims adjudicated in the prior state

court judgment, the district court lacked jurisdiction under

Rooker-Feldman because the Johnsons are essentially

challenging the state judgment as inadequate and are

App. 15

“asking the federal court for the same remedy requested in

the state court action: just compensation.” Gisslen v. City

of Crystal, 345 F.3d 624, 628 (8th Cir. 2003), petition for

cert. filed, No. 03-1141 (Feb. 4, 2004). Moreover, the claims

may be unripe under Williamson County because the

Johnsons failed to appeal the sufficiency of the state court

jury award.

The Johnsons argue that they were denied just

compensation due to “misrepresentations” perpetrated in

the state court proceedings — misrepresentations which

they allegedly discovered after the fact. Whatever the

validity of these allegations, Rooker-Feldman stands as a

bar to federal review because the Johnsons’ requested

relief “would effectively reverse the state court decision or

void its ruling.” Bechtold v. City of Rosemount, 104 F.3d

1062, 1065 (8th Cir. 1997). The Johnsons’ remedy, if any, is

to return to state court and utilize its procedures for

remedying fraud. See Johnson v. Smithsonian Institution,

189 F.3d 180, 186-87 (2d Cir. 1999). If the state courts

deny relief, the Johnsons may seek review by the United

States Supreme Court.

The Johnsons’ claims that were not adjudicated in

state proceedings suffer a similar fate, although for a

different reason. Although claims not presented or adjudi-

cated in state preceedings may not be not barred by

Rooker-Feldman, Williamson County still applies. Thus,

all of the claims which the Johnsons failed to present in

the state litigation, as well as all of the claims which arose

after the state court fixed the takings issues to be decided,

are unripe for adjudication in federal court because the

Johnsons have failed to pursue state postdeprivation

remedies for those alleged takings. See Kottschade v. City

App. 16

of Rochester, 319 F.3d 1038, 1042 (8th Cir.), cert. denied,

124 S. Ct. 178 (2003).

C. Dismissal of State Law Claims

Because the court granted dismissal or summary

judgment on all of the Johnsons’ federal claims, it declined

to exercise jurisdiction over the Johnso..«’ supplemental

state law claims, dismissing them without prejudice. A

federal district court has the discretionary power to

decline jurisdiction where it has “dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

The Supreme Court has noted that “in the usual case in

which all federal-law claims are eliminated before trial,

the balance of factors to be considered under the pendent

jurisdiction doctrine ... will point toward declining to

exercise jurisdiction over the remaining state-law claims.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 348, 350 n. 7

(1988). That is precisely the case here, and we find no

abuse of discretion in the district court’s decision to dis-

miss the pendent claims. See Innovative Home Health

Care, Inc. v. P-T:-O.T: Assoc., 141 F.3d 1284, 1287 (8th Cir.

1998); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.

19¢4).°

D. Shorewood’s Cross-Appeal

Shorewood’s cross-appeal contends that many of the

Johnsons’ current claims could have been brought during

’

'° We have considered and find to be without merit the Johnsons

contentions regarding the rulings on discovery procedures and the

denial of their motion to file a third amended complaint.

App. 17

the state court proceedings described above. Shorewood

suggests that not only does collateral estoppel bar consid-

eration of claims actually litigated, res judicata bars

claims that could have been litigated during the state

court proceedings. Perhaps so, but in light of our holding

that Rooker-Feldman deprived the cistrict court of subject

matter jurisdiction, we need not address this argument,

Because Rooker-Feldman and Williamson County preclude

federal review of the Johnsons’ various takings claims, the

determination regarding the precise reach of the state

court judgment is a matter for the state courts to decide.

Conclusion

As modified to reflect our holding that the district

court was without jurisdiction to consider certain of the

Johnsons’ claims, the judgment is affirmed.

App. 18

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

RONALD k'CrH ARD JOHNSON

and DEE LUND5ERG JOHNSON,

Plaintiffs,

CITY OF SHOREWOOD, and

its Mayor in his official capacity;

CITY OF MINNETONKA, and

its Mayor in her official capacity;

RILEY-PURGATORY-BLUFF

CREEK WATERSHED DISTRICT,

and the Chair of its Board of

Managers in his official capacity;

TRIVESCO, a partnership, and

its partners; ROBERT H. MASON,

INC., a corporation; HIGHLAND

PROPERTIES, INC., a corporation;

STEINER & KOPPELMAN, INC.,

a corporation; HIGHLAND VILLA

BUILDERS INC., a cerporation;

UNITED STATES OF AMERICA;

CORPS OF ENGINEERS, being

sued as the Corps of Engineers of

the United States; THE HONOR-

ABLE LOUIS CALDERA, Secretary

- of the United States Army in his/her

official capacity or his successor;

and LT. GENERAL JOSEPH N.

BALLARD, the Commander-in-

Chief of the Corps of Engineers

of the United States in his/her

official capacity,

Defendants.

Civil No. 00-1281

(DWF/SRN)

ORDER

(Filed Jul. 11, 2001)

enlace ees aes

Re ae i

App. 19

This matter is before the Court upon Plaintiffs’

objections to two Reports and Recommendations of

Magistrate Judge Susan Richard Nelson. The first

Report and Recommendation, dated May 3, 2001, rec-

ommends that the Federal Defendants’ Motion to Dis-

miss or for Summary Judgment (Doc. No. Z0) be

granted; that all claims against the Federal Defendants,

with the exception of claims under the Freedom of

Information Act, be dismissed without prejudice for lack

of jurisdiction, which lies exclusively in the United

States Court of Federal Claims; that the Freedom of

Information Act claim be dismissed with prejudice based

upon the applicable state of limitations; that the City

of Shorewood’s Motion for Summary Judgment (Doc. No.

57) and the City of Minnetonka’s Motion for Summary

Judgment (Doc. No. 46) be granted in part; that all

claims arising from the prior state court litigation be

barred by collateral estoppel and be dismissed with

prejudice; that all remaining claims against the City of

Shorewood and the City of Minnetonka either are unripe

or are supplemental state law claims over which the

Court should decline to exercise jurisdiction, and that,

therefore, such claims be dismissed without prejudice;

and finally, that the Plaintiffs’ Motions to Amend (Doc.

Nos. 25 and 75) and Motion to Continue Deadlines (Doc.

No. 67) be denied. The Defendants support the recom-

mendations of the Report and Recommendation of May

3, 2001. The Plaintiffs object in ail respects to the

Report and Recommendation of May 3, 2001.

Magistrate Judge Nelson’s Report and Recommen-

dation dated May 18, 2001, recommends that Defendant

Riley-Purgatory-Bluff Creek Watershed Disirict’s (“the

District”) Motion for Summary Judgment (Doc. No. 97)

App. 20

and Defendants Trivesco, Robert H. Mason, Inc., High-

land Properties, Inc., and Steiner & Koppelman, Inc.’s

(collectively “Trivesco”) Motion for Summary Judgment

(Doc. No. 122) be granted in part; that all claims arising

from the prior state court litigation be barred by collat-

eral estoppel and be dismissed with prejudice; that all

remaining claims against the District and Trivesco

either are unripe or are supplemental state law claims

over which the Court should decline to exercise jurisdic-

tion and, therefore, such claims be dismissed without

prejudice. The Defendants support the Report and

Recommendation of May 18, 2001. The Plaintiffs object

in all respects to the Report and Recommendation of

May 18, 2001.

There are two standards for a district court’s review

of the order of a magistrate judge. A nondispositive

order may only be reversed if it is “clearly erroneous or

contrary to law.” 28 U.S.C. § 636(b)(1)(a); Fed. R. Civ. P.

72(a). This is an “extremely deferential standard.” Reko

v. Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007

(D. Minn. 1999). Conversely, if the order concerns a

dispositive motion, the district court must review the

magistrate judge’s decision de novo and “may accept,

reject, or modify the recommended decision, receive

further evidence, or recommit the matter to the magis-

trate judge with instructions.” Fed. R. Civ. P. 72(a). A

motion is dispositive if it removes a claim or defense

from the litigation. Id.; Vega v. Univ. of N.Y., 67

F. Supp. 2d 324, 334 (S.D.N.Y. 1999).

With respect to all of the recommendations of

Magistrate Judge Nelson, except for the recommenda-

tion that the Plaintiffs’ Motions to Amend and Motion to

Continue Deadlines be denied, the Court has conducted

a de novo review of the record. 28 U.S.C. § 636(b)(1);

App. 21

Local Rule 72.1(c). With respect to Magistrate Judge

Nelson’s recommendation in the Report and Recommen-

dation of May 3, 2001, to deny Plaintiffs’ Motions to

Amend and to deny Plaintiffs’ Motion to Continue

Deadlines, the Court must modify or set aside any

portion of the Magistrate’s order, nondispositive in

nature, found to be clearly erroneous or contrary to law.

See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Local

Rule 72.1(b)(2).

Based upon the Court’s review of the record, the

Court having reviewed the a: guments and submissions

of the parties, and the Court being otherwise duly

advised in the premises, the Court hereby adopts the

Reports and Recommendations of Magistrate Judge

Nelson of May 3, 2001, and May 18, 2001.

Accordingly, IT IS HEREBY ORDERED:

MAY 3, 2001, REPORT AND RECOMMENDATION

1. The Federal Defendants’ Motion to Dismiss or for

Summary Judgment (Doc. No. 20) is GRANTED. All

claims against the Federal Defendants with the exception

of claims under the Freedom of Information Act are

DISMISSED WITHOUT PREJUDICE for lack of

jurisdiction, which lies exclusively in the United States

Court of Federal Claims. Further, the Freedom of Infor-

mation Act claim is DISMISSED WITH PREJUDICE

based on the applicable statue of limitations.

2. The City of Shorewood’s Motion for Summary

Judgment (Doc. No. 57) and the City of Minnetonka’s Motion

for Summary Judgment (Doc. No. 46) are GRANTED in

part. All claims arising from the prior state court litigation

are barred by collateral estoppel and are DISMISSED

: App. 22

WITH PREJUDICE. All remaining claims against the City

of Shorewood and the City of Minnetonka either are unripe

or are supplemental state law claims over which the Court

declines to exercise jurisdiction and, therefore, such claims

are DISMISSED WITHOUT PREJUDICE.

3. Magistrate Judge Susan Richard Nelson’s order of

May 3, 2001, denying Plaintiffs’ Motions to Amend (Doc.

Nos. 25 and 27) and denying Plaintiffs’ Motion to Continue

Deadlines (Doc. No. 67) is AFFIRMED. Plaintiffs’ objec-

tions and appeal of that portion of the May 3, 2001, Report

and Recommendation is DISMISSED. Alternatively,

Plaintiffs’ Motions to Amend and Motion to Continue

Deadlines are DENIED.

MAY 18, 2001, REPORT AND RECCMMENDATION

4. The District’s Motion for Summary Judgmenit

(Doc. No. 97) and Trivesco’s Motion for Summary Judg-

ment (Doc. No. 122) are GRANTED in part. All claims

arising from the prior state court litigation are barred by

collateral estoppel and are DISMISSED WITH PREJU-

DICE. All remaining claims against the District and

Trivesco either are unripe or are supplemental state law

claims over which the Court declines to exercise jurisdic-

tion, and such claims are therefore DISMISSED WITH-

OUT PREJUDICE. ‘i

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: July 11, 2001 /s/ Donovan W. Frank

DONOVAN W. FRANK

Judge of United States

District Court

App. 23

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Ronald Richard Johnson and Civil No.

Dee Lundberg Johnson, 00-1281 (DWF/SRN)

Plaintiffs, ORDER

V. (Filed Mar. 13, 2003)

City of Shorewood, and its

Mayor in his official capacity;

City of Minnetonka, and its

Mayor in her official capacity;

Rilev-Purgatory-Bluff Creek

Watershed District, and the

Chair of i:s Board of Managers

in his official capacity;

Trivesco, a partnership, and

its partners; Robert H. Mason,

Inc., a corporation; Steiner &

Koppelman, Inc., a corpora-

tion; United States of America;

Corps of Engineers, being sued

as the Corps of Engineers of

the United States; The Honor-

able Louis Caldera, Secretary

of the United States Army in

his/her official capacity or his

successor; and Lt. General

Joseph N. Ballard, the Com-

mander-in-Chief of the Corps

of Engineers of the United

States in his/her official

capacity,

Defendants.

App. 24

This matter is before the Court upon Plaintiffs’

request for leave of the Court, pursuant to Local Rule

7.1(g) to file a motion for reconsideration of the Court’s

order of October 7, 2002, in which the Court denied Plain-

tiffs’ motion to vacate the order of July 11, 2001, and the

order of October 7, 2002, in which the Court denied Plain-

| tiffs’ motion to vacate the order of July 11, 2001, and the

| order of October 10, 2001. The order of February 10, 2003,

simply directed the Clerk of Court to enter judgment in

the above-entitled matter to clarify the procedural status

of the case, namely, that no further matters were pending

before the Court. In fact, judgment had already been

entered on the July 11, 2001, order.

Based upon the record before the Court, including the

submissions of the Plaintiffs; the Court having duly

evaluated and reviewed the submissions of the Plaintiffs,

including the procedural history of the file; and the Court

being otherwise duly advised in the premises, the Court

hereby enters the following:

ORDER

1. Plaintiff's request to file a motion for reconsidera-

tion (Doc. No. 202) is respectfully DENIED.

Dated: March 13, 2003 /s/ Donovan W. Frank

DONOVAN W. FRANK

Judge of United States

District Court

MEMORANDUM

The Court entered an order on July 11, 2001, and

entered judgment accordingly. The Court entered subse-

quent orders on October 10, 2001, and October 7, 2002.

In the order of October 7, 2002, the Court allowed the

at eeecinecsbemntiieidenieeen ena

Fh ba 5

App. 25

Plaintiff's to supplement the record with two additional

affidavits. The Court then considered the new documents

in the context of the earlier motions for summary judg-

ment addressed in the Court’s order of July 11, 2001, and

October 10, 2001, and then declined to vacate the order of

July 11, 2001, and the order of October 10, 2001. The order

of February 10, 2003, simply clarified the procedural

status of the case by documenting that no further matters

were pending before the Court and directed the Clerk of

Court to enter judgment in the case to the extent, if any,

the Clerk of Court had not done so.

A motion to reconsider under Local Rule 7.1(g) is the

“functional equivalent” of a motion to alter or amend the

judgment under Rule 59(e) of the Federal Rules of Civil

Procedure. DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999).

Requests to file such motions are granted “only upon a

showing of compelling circumstances.” D. Minn. LR 7.1(g);

Transclean Corp. v. Bridgewood Services, Inc., 134 F.

Supp. 2d 1049 (D. Minn. 2001). A motion to reconsider

should not be employed to relitigate old issues, but to

“afford an opportunity for relief in extraordinary circum-

stances.” Dale and Selby Superette & Deli v. United States

Dept. of Agriculture, 838 F.Supp. 1346 (D. Minn. 1993).

The Court has reviewed the long and complicated

procedural history of this file. The Court finds and con-

cludes that the Plaintiffs have not shown the compelling

circumstances necessary to justify their request. Because

the Plaintiffs have not shown compelling or extraordinary-

circumstances as required by Local Rule 7.1(g), the Court

has denied Plaintiffs’ request to file a motion to reconsider.

D.W.F.

App. 26

UNITED STATES DISTRICT CQURT

DISTRICT OF MINNESOTA

Ronald Richard Johnson and Civil No. 00-1281

Dee Lundberg Johnson, : (DWF/SRN)

Plaintiffs,

v. ORDER

City of Shorewood, and its

Mayor in his official capacity; (Filed Feb. 10, 2003)

City of Minnetonka, and its

Mayor in her official capacity;

Riley-Purgatory-Bluff Creek

Watershed District, and the

Chair of its Board of Managers

in his official capacity; Trivesco,

a partnership, and its partners;

Robert H. Mason, Inc., a

corporation; Highland Properties,

Inc., a corporation; Steiner &

Koppelman, Inc., a corporation;

Highland Villa Builders Inc., a

corporation; United States of

America; Corps of Engineers,

being sued as the Corps of

Engineers of the United States;

The Honorable Louis Caldera,

Secretary of the United States

Army in his/her official capacity

or his successor; Lt. General

Joseph N. Ballard, the Commander-

in-Chief of the Corps of

Engineers of the United States

in his/her official capacity,

Defendants.

App. 27

All claims having been resolved by this Court’s Orders

of July 11, 2001 (Doc. No. 161), and October 10, 2001 (Doc.

No. 177), and there being no further matters pending

before the Court, the Court hereby directs the Clerk of

Court to enter judgment in the above-entitled matter.

Dated: February 10, 2003 /s/ Donovan W. Frank

DONOVAN W. FRANK

Judge of United States

District Court

App. 28

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Ronald Richard Johnson and Civil No.

Dee Lundberg Johnson, 00-1281 (DWF/SRN)

Plaintiffs,

Vv. ORDER

City of Shorewood, and its Mayor

in his official capacity; City of

Minnetonka, and its Mayor in her

official capacity; Riley-Purgatory-

Bluff Creek Watershed District,

and the Chair of its Board of

Managers in his official capacity;

Trivesco, a partnership, and its

partners; Robert H. Mason, Inc., a

corporation; Highland Properties,

Inc., a corporation; Steiner &

Koppelman, Inc., a corporation;

Highland Villa Builders Inc., a

corporation; United States of

America; Corps of Engineers, being

sued as the Corps of Engineers of

the United States; The Honorable

Louis Caldera, Secretary of the

United States Army in his/her

official capacity or his successor;

Lt. General Joseph N. Ballard, the

Commander-in-Chief of the Corps

of Engineers of the United States

in his/her official capacity,

(Filed Oct 10, 2001)

Defendants.

This matter is before the Court upon Plaintiffs’

objections to Magistrate Judge Susan Richard Nelson’s

App. 29

Report and Recommendation dated August 3, 2001,

recommending that the Highland Defendants’ motion for

summary judgment be granted in part, all claims arising

from the prior state court litigation be barred by collateral

estoppel and should be dismissed with prejudice; all

remaining claims against the Highland Defendants either

are unique or are supplemental state law claims over

which the Court should decline to exercise jurisdiction,

and such claims should be dismissed without prejudice.

The Court has conducted a de novo review of the record. 28

U.S.C. § 636(b)(1); Local Rule 72.1(c).

Based upon the Court’s review of the record, review of

the arguments and submissions of the parties, and the

Court being otherwise duly advised in the premises, the

Court hereby enters the following:

ORDER

1. Magistrate Judge Susan Richard Nelson’s Report

and Recommendation dated August 3, 2001 (Doc. No. 165),

is ADOPTED.

2. The Highland Defendants motion for summary

judgment (Doc. No. 148) is GRANTED in part. All claims

arising from the prior state court litigation are barred by

collateral estoppel and are DISMISSED WITH PREJU- |

DICE. All remaining claims against the Highland Defen-

dants either are unripe or are supplemental state law

claims over which the Court declines to exercise jurisdic-

tion, and such claims are DISMISSED WITHOUT

PREJUDICE.

App. 30

Dated: October 10th, 2001

/s/ Donovan W. Frank

DONOVAN W. FRANK

Judge of United States District

Court

App. 31

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

RONALD RICHARD

JOHNSON and DEE

LUNDBERG JOHNSON,

Plaintiffs,

VS.

CITY OF SHOREWOOD; CITY

OF MINNETONKA; RILEY-

PURGATORY-BLUFF CREEK

WATERSHED DISTRICT;

TRIVESCO, a partnership;

and its partners ROBERT H.

MASON, INC., a corporation;

HIGHLAND PROPERTIES,

INC., a corporation; and

STEINER & KOPPELMAN,

INC., a corporation; HIGH-

LAND VILLA BUILDERS INC.,

a corporation; the UNITED

STATES; the CORPS OF

ENGINEERS OF THE UNITED

STATES; the Secretary of the

United States Army in his/her

official capacity, HONORABLE

LOUIS CALDERA, or his suc-

cessor; and the Commander-in-

Chief of the Corps of Engineers

of the United States in his/her

official capacity, LT. GENERAL

JOSEPH N. BALLARD, or his

successor,

Defendants.

Case No. 00-CV-1281

(DWF/SRN)

_ REPORT AND

RECOMMENDATION

(Filed Aug. 03, 2001)

App. 32

This matter is before the Court upon motion of Defen-

dants Highland Properties, Inc., and Highland Villa

Builders, Inc. (collectively “the Highland Defendants”) to

dismiss all claims against them or in the alternative for

summary judgment. Because the parties have submitted

materials outside the pleadings in connection with this

motion, the Court will treat the motion as one for sum-

mary judgment. Fed.R.Civ.P. 12(b).

Plaintiffs Ronald-and Dee Johnson (“the Johnsons”)

claim in essence that a number of governmental and

private entities acted together to deprive the Johnsons of

rights guaranteed under federal law, particularly their

right to just compensation for taking of property. The

Johnsons allege that the Highland Defendants partici-

pated in developing property near the Johnsons’ property

and that in so doing the Highland Defendants contributed

to flooding on the Johnsons’ property. In two earlier Reports

and Recommendations, this Court held that the claims

against all Defendants other than the Highland Defendants

should be dismissed on jurisdictional or procedural grounds.

The District Court adopted those Reports and Recommen-

dations by order dated July 11, 2001. The reasoning of the

earlier Reports: and Recommendations applies with equal

force to the claims against the Highland Defendants. The

Johnsons have not shown that the Highland Defendants

violated either 28 U.S.C. § 1983 or 28 U.S.C. § 1965. The

Johnsons’ remaining claims against the Highland Defen-

dants either are barred by collateral estoppel, are unripe,

or are supplemental state law claims over which this

Court should decline to exercise jurisdiction.

The Johnsons raise two additional issues warranting

brief consideration. First, the Johnsons assert in their

motion papers that the Highland Defendants and others

ae |

ee ye ee ee ee

App. 33

violated federal environmental laws and regulations. These

allegations have no bearing upon the present motion,

however, because they do not appear in the Johnsons’

Complaint as amended, and this record in any case con-

tains no evidence of such violations other than conclusory

statements in the Johnsons’ affidavits. Finally, at oral

argument counsel for the Johnsons expressed concern

about an ambiguity in the District Court’s order adopting

the earlier Reports and Recommendations. The Court has

reviewed the District Court’s order, which seems to adopt

the Reports and Recommendations in their entirety, and

has found no ambiguity requiring clarification.

Based on the foregoing, and on all the files, records

and proceedings hearing, IT IS HEREBY RECOM.-

MENDED THAT:

1. The Highland Defendants’ Motion for Summary

Judgment be GRANTED in part. All claims arising from

the prior state court litigation are barred by collateral

estoppel and should be DISMISSED with prejudice. All

remaining claims against the Highland Defendants either

are unripe or are supplemental state law claims over

which the Court should decline to exercise jurisdiction,

and such claims should be DISMISSED without prejudice.

Dated: August 3, 2001

/s/ Susan Richard Nelson

SUSAN RICHARD NELSON

United States Magistrate

Judge

* * *

ee - ,

App. 34

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

RONALD RICHARD

JOHNSON and

DEE LUNDBERG JOHNSON,

Plaintiffs,

vs.

CITY OF SHOREWOOD; CITY

OF MINNETONKA; RILEY-

PURGATORY-BLUFF CREEK

WATER SHED DISTRICT;

TRIVESCO, a partnership;

and its partners ROBERT H.

MASON, INC., a corporation;

HIGHLAND PROPERTIES, Case No

INC., a corporation; and :

STEINER AND KOPPELMAN, 20-CV-1281 (DWE/SRN)

INC., a corporation; HIGH- REPORT AND

LAND VILLA BUILDERS, RECOMMENDATION

INC., a corporation; the

UNITED STATES; the CORPS (Filed May 18, 2001)

OF ENGINEERS OF THE

UNITED STATES; the Secre-

tary of the United States

Army in his/her official capac-

ity, HONORABLE LOUIS

CALDERA or his successor; ,

and the Commander-in-Chief |

of the Corps of Engineers of |

the United States in his/her

official capacity, LT. GEN- |

ERAL JOSEPH N. BALLARD |

or his successor,

Defendants.

App. 35 ~

This matter is before the undersigned United States

Magistrate Judge upon motions of Defendant Riley-

Purgatory- Bluff Creek Watershed District (“the District”)

and of Defendants Trivesco, Robert H. Mason, Inc., High-

iand Properties, Inc., and Steiner & Koppelman, Inc.

(collectively “Trivesco”) for summary judgment. These

matters have been referred to the undersigned pursuant to

28 U.S.C. § 636 and Local Rule 72.1. (Docket No. 105).

_ The Court, in a Report and Recommendation dated

May 3, 2001, dismissed a number of claims against other

Defendants, and the reasoning underlying that result

generally is appliceble to the claims against the District

and Trivesco as well. This discussion accordingly will focus

on facts and issues raised in the District’s and Trivesco’s

motions that the Court did not address at length in the

earlier Report and Recommendation.

Plaintiffs Ronald and Dee Johnson (“the Johnsons”)

claim that the District and Trivesco, along with the other

Defendants, took actions contributing to flooding on the

Johnsons’ property since 1984. The District has regulatory

jurisdiction over the watershed containing the Johnsons’

property. In 1984, The District issued permits allowing the

City of Shorewood to construct a ponding basin near the

Johnsons’ property, and that construction led to the

flooding about which the Johnsons complain. The District

in May 2000 also issued a permit authorizing the City of

Shorewood to construct a bituminous trail near a road

abutting the Johnsons’ property. The District has not

attempted to take title to any part of the Johnsons’ prop-

erty, and the record shows no District regulation con-

straining the Johnsons’ use of their property other than

a prohibition on building within the 100-year flood plain.

In a 1993 case in Minnesota state court involving the

App. 36

Johnsons, the court specifically held that the District’s

prohibition on building did not constitute a regulatory

taking compensable under the federal or state constitution.

Trivesco is a partnership involved in the Waterford

property development in the City of Shorewood. Trivescc

presently owns an outlot of that development, Outict C,

which borders the Johnsons’ property. The Johnsons alleye

that Trivesco breached a contract to sell Outlot C to the

Johnsons, imposed “secret” restrictive covenants on the

development of Outlot C, and otherwise acted in such a

way as to interfere unlawfully with the use of the John-

sons’ property. The Johnsons also allege that Trivesco

individually and in conjunction with other Defendants

participated in planning decisions which ultimately led to

the flooding of the Johnsons’ property.

The Johnsons assert causes of action against the

District and Trivesco pursuant to 42 U.S.C. §§ 1983 and

1985 and a number of state common law theories. The

Court earlier held that the Johnsons had shown no action-

able violation of federal civil rights laws with respect to

various other Defendants, and the record for these motions

compels the same conclusion. The Johnsons continue to

rely extensively on City of Monterey v. Del Monte Dunes of

Monterey, Ltd., 526 U.S. 687 (1999), and other regulatory

takings cases, but the collateral estoppel effect of the state

court judgment forecloses any regulatory takings claims

arising from the flooding of the Johnsons’ property in

1984. Any subsequent takings, including takings resulting

from increased flooding and takings related to the con-

struction of the bituminous trail, are not ripe for federal

adjudication because the Minnesota state courts have not

denied those claims. McKenzie v. City of White Hall, 112

¥.3d 313, 317 (8th Cir. 1997). Although the Johnsons

App. 37

insist that further state court litigation would be futile,

the only argument they offer in support of that proposition

is that they received no compensation in the earlier state

court proceedings. The Johnsons have a right only to “just”

compensation, however, and the Johnsons received no

monetary award for the value of their land because a jury

found that the taking had not reduced the value of the

Johnsons’ property. The Johnsons here have shown no

reason to believe that they will not receive an adequate

hearing on or just compensation for any later takings

claimed in the Minnesota courts. :

The Johnsons also have not shown any other violation

of federal constitutional or statutory law sufficient to

sustain a claim under 42 U.S.C 8§ 1983 and 1985. The

record contains no evidence that either the District or

Trivesco participated in a conspiracy to deprive the John-

sons of any federally protected right, as required for claims

under § 1985 and, with respect to Trivesco, under § 1983.

See Johnson v. Outbound Marine Corp., 172 F.3d 531, 536

(8th Cir. 1999) (holding that a party who is not a state

actor cannot be subject to liability under § 1983 in the

absence of a showing of that party's willful participation

with a state actor in violating the plaintiffs rights). As

indicated in the first Report and Recommendation, the

Johnsons point to no specific facts establishing that the

District’s actiens violated a federal due process standard

or a federal equal protection standard. And, although the

Johnsons argue for the first time in their motion papers

that the Defendants violated their rights under various

federal environmental laws, this record does not establish

that the District or Trivesco violated any duty owed to the

Johnsons under those laws.

App. 38

The only potentially viable causes of action against

the District and Trivesco, then, arise, entirely under

Minnesota law. Despite the lack of a federal question after

disposition of the federal civil rights claims, both the

District and Trivesco request that this Court exercise

supplemental jurisdiction over the Johnsons’ state law

claims and enter judgment in favor of the District and

Trivesco on the merits. Given the posture of this case,

however, concerns of comity outweigh a desire for judicial

economy. The Johnsons’ state law claims inevitably will

lead to determinations of the validity of a state court

judgment and of title to real property, both of which are

matters more within the competence of the state than the

federal courts. Furthermore, the Johnsons may attempt to

assert their unripe takings claims in state court, which

would involve the District and Trivesco regardless of

whether the other state law claims against the District

and Trivesco are dismissed. Judicial economy accordingly

may be better served by dismissing all state law claims

without prejudice and allowing the Johnsons to combine

all remaining state law issues in a single proceeding.

Based on the foregoing, and on all the files, records

and proceedings herein, IT IS HEREBY RECOM-

MENDED THAT:

The District’s Motion for Summary Judgment (Docket

No. 97) and Trivesco’s Motion for Summary Judgment

(Docket No. 122) be GRANTED in part. All claims arising

from the prior state court litigation are barred by collat-

eral estoppel and should be DISMISSED with prejudice.

All remaining claims against the District and Trivesco

either are unripe or are supplemental state law claims

App. 39

over which the Court should decline to exercise jurisdic-

tion, and such claims should be DISMISSED without

prejudice.

Dated: May 18, 2001

/s/ Susan Richard Nelson

SUSAN RICHARD NELSON

United States Magistrate Judge

* * *

App. 40

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

RONALD RICHARD JOHNSON

and DEE LUNDBERG JOHNSON,

Plaintiffs,

Case No.

vs. 00-CV-1281 (DWF/SRN)

CITY OF SHOREWOOD; CITY REPORT AND

OF MINNETONKA; RILEY- RECOMMENDATION

PURGATORY-BLUFF CREEK

WATERSHED DISTRICT; (Filed May 8, 2001)

TRIVESCO, partnership; and

its partners ROBERT H.

MASON, INC., a corporation;

HIGHLAND PROPERTIES,

INC., a corporation; and

STEINER AND KOPPELMAN,

INC., a corporation; HIGHLAND

VILLA BUILDERS, INC., a

corporation; the UNITED

STATES; the CORPS OF

ENGINEERS OF THE UNITED

STATES; the Secretary of the

United States Army in his/her

official capacity, HONORABLE

LOUIS CALDERA or his

successor; and the Commander-

in-Chief of the Corps of Engineers

of the United States in his/her

official capacity, LT. GENERAL

JOSEPH N. BALLARD or his

successor,

Defendants.

App. 41

Plaintiffs Ronald and Dee Johnson (“the Johnsons”)

began litigating issues related to this case ten years ago.

The Johnsons originally claimed in Minnesota state court

that Defendant City of Shorewood (“Shorewood”) had

taken the Johnsons’ property without payment of just

compensation. The Johnsons maintain, even after several

state court proceedings, that they still have not received

just compensation. This result, according to the Johnsons,

occurred because a collection of municipal governments,

real estate developers, and federal and state agencies

participated in a conspiracy to deprive the Johnsons’ of

their legal rights. The United States and its agencies and

officials named as Defendants (collectively “Federal

Defendants”) have moved to dismiss all claims against

them. The two municipalities named as Defendants,

Shorewood and the City of Minnetonka (collectively

“Municipal Defendants”), each have moved for summary

judgment on all claims against them. The Johnsons in

turn have moved to amend their Complaint to include

twenty additional defendants and several additional

claims. For the reasons discussed below, the Court recom-

- mends that the claims against the Federal Defendants be

DISMISSED, that the Municipal Defendants’ motions for

summary judgment be GRANTED in part, that the re-

maining claims against the Municipal Defendants be

DISMISSED, and that the Johnsons’ motion to amend be

DENIED.

I. Background

The facts pertinent to the motions at issue are as

follows. The Johnsons purchased approximately twenty

acres of property within Shorewood in 1981. In 1984,

Shorewood constructed a road and ponding area near the

App. 42 _

Johnsons’ property with the consents of the U.S. Army

Corps of Engineers and the Riley-Purgatory-Bluff Creek

Watershed District. This project has caused flooding on the

Johnsons’ property since 1984. The Johnsons eventually

brought suit against Shorewood in Minnesota state court,

arguing that the flooding constituted a taking of their

property compensable under the federal and state consti-

tutions. The state court, in 1993, held that Shorewood’s

project resulted in a permanent physical taking of a

certain portion of the Johnsons’ property and that no

regulatory taking took place. The state court accordingly

issued a writ of mandamus compelling Shorewood to

conduct eminent domain proceedings and to establish the

compensation owed to the Johnsons. That result was

affirmed on appeal. Johnson v. City of Shorewood, No. CX-

93-2452 (Minn.Ct.App. May 11, 1994), review denied

(Minn. July 15, 1994).

Shorewood complied with the state court’s order and

made a monetary award. The Johnsons returned to state

court to challenge the amount of the award, and the

Johnsons also attempted to challenge the scope of the

taking defined in the first proceeding. The state court held

that the Johnsons could not relitigate the scope of the

taking, precluded the Johnsons from introducing evidence

of other takings related to the flooding of their property,

and adopted a jury finding that the flooding had not

reduced the market value of the Johnsons’ property, The

result of the second proceeding also was affirmed on

appeal in its entirety. City of Shorewood v. Johnson, No.

C5-97-1525 (Minn.Ct.App. April 21, 1998). A third state

court case, this time against the City of Minnetonka, was

dismissed without prejudice because the Johnsons had not

App. 43

joined parties who in the court’s view were necessary to

the litigation. No appeal was taken from that dismissal.

This case represents the Johnsons’ attempt to cure the

defects in the third state court case and bring claims

against all necessary parties. Federal jurisdiction is

predicated upon the presence of the United States as a

defendant, 28 U.S.C. § 1346, and upon the assertion of

federal statutory causes of action pursuant to 42 U.S.C.

§§ 1983 and 1985. The Federal Defendants have moved to

dismiss, inter alia, on jurisdictional grounds, and the

Municipal Defendants have moved to dismiss, inter alia,

on procedural grounds. The Court will address only the

procedural and jurisdictional issues because they are

dispositive and, thus, need not reach the merits of the

claims,

II. The Federal Defendants’ Motion to Dismiss

Although the Complaint does not clearly state the

amount of damages the Johnsons seek from the Federal

Defendants, the motion papers and statements at argu-

ment indicate that the Johnsons will request an amount

greater than $10,000. This Court lacks subject matter

jurisdiction over claims against the Federal Defendants for

damages in that amount, 28 U.S.C. § 1346(a)(2). Exclusive

jurisdiction over such claims is vested in the United States

Court of Federal Claims, 28 U.S.C. § 1491(a) 1), even if the

plaintiffs request equitable relief in addition to damages.

V.S. Ltd. P’ship v. Dept. of Hous. and Urban Dev., 235 F.3d

1109, 1112 (8th Cir. 2000). The district court, pursuant to

28 U.S.C. § 1631, has the authority to transfer claims

properly before the Court of Federal Claims. However,

the Johnsons have withdrawn their request for such a

App. 44

transfer, and in that circumstance, the most appropriate

action is to dismiss the claims for damages against the

Federal Defendants without prejudice’. V.S. Ltd. P’ship,

235 F.3d at 1113.

The only claim against the Federal Defendants over

which this Court arguably has jurisdiction is for a viola-

tion of the Freedom of Information Act, 5 U.S.C. § 552. The

Johnsons allege that the Federal Defendants in 1993

failed to comply with their request for production of

documents pursuant to the Freedom of Information Act,

and money damages are not available for such a violation.

Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993)

(per curiam). Claims for violations of the Freedom of

Information Act must be brought within six years of the

violation. 28 U.S.C. § 2401(a). The Johnsons did not assert

their Freedom of Information Act claim within the limita-

tions period, and that claim accordingly should be dis-

missed with prejudice.

III. The Municipal Defendants’ Motions for Sum-

mary Judgment

Defendants City of Shorewood and City of Minnetonka

have moved for summary judgment on similar grounds.

' Some of the allegations against the Federal Defendants could be

construed as tortious and thus within the district court’s jurisdiction

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2670 et seq.

An FTCA claim, however, requires the denial of an administrative

claim for relief with the appropriate federal agency prior to commence-

ment of a district court action. Jd. at § 2675(a). The Johnsons have

submitted no evidence that the United States has denied relief for any

claim cognizable under the FTCA.

OF ee NEA Dd I A,

App. 45

Both Municipal Defendants argue that the Johnsons’ claims

against them are procedurally barred. The Municipal

Defendants’ position is valid, at least with respect to the

claims brought pursuant to 42 U.S.C. §§ 1983 and 1985.

42 U.S.C. § 1985 provides a cause of action for persons

injured through a conspiracy to deprive them of a federally

protected right or privilege. In response to a motion for

summary judgment, a plaintiff relying upon this cause of

action must produce evidence showing the existence of a

“meeting of the minds of the alleged conspirators.” Rouse

v. Benson, 193 F 3d 936, 943 (8th Cir. 1999). This record

contains a great deal of evidence, but it contains no evi-

dence sufficient to support a finding of a conspiracy to

violate any right the Johnsons may have under federal

law. The affidavits submitted from former mayors of

Shorewood, persons who presumably would be in a posi-

tion to know of a conspiracy against the Johnsons, say

nothing about an understanding between any of the

Defendants concerning the Johnsons. The actions of the

Defendants show no collective purpose, and the Johnsons’

speculation concerning such a purpose does not allow the

conspiracy claims against the municipalities to survive

summary judgment.

The Johnsons have a cause of action under 42 U.S.C.

§ 1983 against any person who deprives them of a feder-

ally protected right under color of state law. The Johnsons’

§ 1983 claims based upon the taking of their property’,

* The record does not show the existence of any potential constitu-

tional violation by the Municipal Defendants other than the alleged

taking of the Johnsons’ property without just compensation. Although

the Johnsons have alleged violations of their procedural and substan-

tive due process rights and of their right to equal protection of the laws,

(Continued on following page)

App. 46

however, are barred because those claims either were fully

litigated in the earlier state court proceedings or are not

ripe because they have not been presented to the state

court. With respect to the earlier state court proceedings,

the state court judgment has the same effect in the federal

courts as it would under Minnesota law. Lommen v. City of

East Grand Forks, 97 F.3d 272, 274 (8th Cir. 1996). Min-

nesota law allows a defendant to invoke principles of

collateral estoppel against a plaintiff who was a claimant

in an earlier proceeding when the matter at issue is

identical to that in a prior case, a final determination on

the merits exists, and the plaintiff had a full opportunity

to be heard in the prior case. Aufderhar v. Data Dispatch,

Inc., 452 N.W.2d 648, 650 (Minn. 1990). The Johnsons

complain that the state court litigation left them with

nothing for the value of their land; however, the Johnsons

cite no authority indicating that all takings are com-

pensable regardless of the value of the property taken. The

state court proceedings definitively established the extent

of the physical taking, the lack of a regulatory taking, and

the amount of damages to the Johnsons. All claims arising

out of the state court litigation accordingly are barred

under principles of collateral estoppel.”

the Johnsons have pointed out no defects in the procedures available to

them under state law, the Johnsons have not shown that any substantive

right protected under the due process clause has been violated, and the

Johnsons have not shown that the actions of the Defendants were

arbitrary or capricious or in any other way violated their rights under

the equal protection clause.

* The Johnsons contend that the state judgment is void based on

frauds allegedly perpetrated on the state court and that this Court

therefore need not recognize that judgment. As a general matter,

however, a federal court may not declare that a state court judgment is

(Continued on following page)

ee een Ye m

App. 47

With respect to any alleged takings occurring after the

state court litigation, the Johnsons may assert claims for

such takings in federal court only after exhausting avail-

able remedies in state court. McKenzie v. City of White

Hall, 112 F.3d 313, 317 (8th Cir 1997). Any claims for

takings occurring subsequent to the state court litigation

are not ripe because the Johnsons have neither attempted

to obtain relief in state court nor shown that the proce-

dures available in state court are inadequate. Id.

IV. Supplemental Jurisdiction and the John-

sons’ Motion to Amend

A federal court has jurisdiction to hear state law

claims arising from a case or controversy over which it

otherwise has jurisdiction. 28 U.S.C. § 1367. The Johnsons

have asserted a number of state law causes of action

azainst both the Federal Defendants and the Municipal

Defendants over which this Court could exercise jurisdic-

tiou, but this Court may dismiss such claims if it has

dismissed all claims over which it has original jurisdiction.

Id. at § 1367(c)(3). Most of the Johnsons’ state law claims ;

involve the adjudication of contract rights and other

interests-in real property, a process which is most appro-

priately handled in state rather than federal court. Given

the other impediments to a federal action, including a

preexisting state court judgment and a failure to exhaust

void or otherwise undermine the state court’s holding. Lemonds v. St.

Louis County, 222 F.3d 488, 492-93 (8th Cir. 2000). If the Johnsons

believe the state court judgment is void, they may apply to the state

court for relief from the judgment pursuant to Minn.R.Civ P. 60.02.

App. 48

state court remedies, a dismissal of the Johnsons’ supple-

mental claims without prejudice is warranted.

The Johnsons’ proposed amendments do not change

this analysis. The only proposed new cause of action under

federal law~-is for an infringement of the Johnsons’ free

sp-ech rights. The Johnsons claim that the various Defen-

dants threatened the Johnsons with prosecution and

thereby interfered wiih the Johnson’ ability to communi-

cate freely with the government. The Johnsons, however,

do not allege that their ability to petition the government

for redress of grievances in fact has been cumpromised,

and the amount of past litigation related to this dispute

demonstrates that the Johnsons were able to exercise all

freedoms protected under the First Amendment. The other

proposed amendments involve claims against the United

States over which this Court lacks jurisdiction, unex-

hausted takings claims which are not ripe, and state law

claims which would be available in a subsequent state

court action. The Johnsons’ motion to amend accordingly

will be denied.

Based on the foregoing, and on all the files, records .

and proceedings herein, IT IS HEREBY RECOM-

MENDED THAT:

1. The Federal Defendants’ Motion to Dismiss or for

Summary Judgment (Docket No. 20) be GRANTED. All

claims against the Federal Defendants with the exception

of claims under the Freedom of Information Act should be

DISMISSED without prejudice for want of jurisdiction,

which lies exclusively in the United States Court of Fed-

eral Claims. The Freedom of Information Act claim also

should be DISMISSED with prejudice based on the —

cable statute of limitations.

App. 49

2. The City of Shorewood’s Motion for Summary

Judgment (Docket No. 57) and the City of Minnetonka’s

Motion for Summary Judgment (Docket No. 46) be

GRANTED in part. All claims arising from the prior state

court litigation are barred by collateral estoppel and

should be DISMISSED with prejudice. Al] remaining

claims against the City of Shorewood and the City of

Minnetonka either are unripe or are supplemental state

law claims over which the Court should decline to exercise

jurisdiction, and such claims should be DISMISSED

without prejudice.

3. The Johnsons’ Motions to Amend (Docket Nos. 25

and 75) and Motion to Continue Deadlines (Docket No. 67)

be DENIED.

Dated: May 3, 2001

/s/ Susan Richard N elson

SUSAN RICHARD NELSON

United States Magistrate J udge

* * *

App. 50

STATE OF MINNESOTA DISTRICT COURT

FOURTH JUDICIAL

COUNTY OF HENNEPIN ‘ DISTRICT

Dated: JANUARY 05, 2000

NOTICE OF ENTRY OF JUDGMENT

GARY A VAN CLEVE

7900 XERXES AVENUE S

SUITE 1500

BLOOMINGTON MN 55431

IN RE:

CITY OF SHOREWOOD

‘vs File Number: DC CD 000002344

JOHNSON, RONALD, R

You are hereby notified that on this date JUDG-

MENT was ENTERED in the above-entitled matter.

DATE OF JUDGMENT : JANUARY 05, 2000

Mark S. Thompson

Judicial District Administrator

Hennepin County Courts

App. 51

In the United States Court of Federal Claims

Case No. 01-465L

(Filed: November 4, 2003)

7B 282 6 2 2 2 2 2 2 2 2 2 9 2 2 2k 2k 2k 2 9k 2 ok ok 2k 2k ok ak ake ok

RONALD RICHARD JOHNSON’ *

and DEE LUNDBERG JOHNSON, «

Plaintiffs,

Vv. *

THE UNITED STATES OF ,

AMERICA,

Defendant.

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OPINION

BASKIR, Judge.

In response to the Plaintif*,’ Complaint alleging a

taking and related claims originating in the “wetlands”

designation of their property, and flooding caused by a

state “taking,” the United States filed a Motion to Dismiss

and/or for Summary Judgment raising the statute of

limitations, subject-matter jurisdiction, collateral estoppel,

and similar defenses. The Court had an oral argument on

the Defendant’s motion on November 3, 2003. At the oral

argument, the Defendant raised a variety of defenses, as it

did in its papers; we address the principal ones in our

opinion below.

After extensive briefing and oral argument, we

grant the Defendant’s Motion to Dismiss, in part,

reserving the matter of Plaintiffs’ claim of breach of

an implied-in-fact contract.

App. 52

The Plaintiffs have included, throughout their plead-

ings, new claims and factual assertions, but do not do so in

the proper format of an amended complaint. The Defen-

dant’s motion was directed solely at the claims in the

Complaint, and oral argument was limited solely to that

motion.

If the Plaintiffs wish to pursue these new claims they

are, of course, free to file a new complaint in an appropri-

ate court. If the Plaintiffs wish to amend their Com-

plaint filed in this Court, they have until December

18, 2003, to file a motion seeking leave to file an

amended complaint. The proposed amended complaint

is to conform to the rules of this Court and shall not

restate claims which have been rejected in this opinion.

The Government is, of course, free to respond to this

motion as it sees fit.

BACKGROUND

In 1981, the Plaintiffs, Ronald Richard and Dee

Lundberg Johnson, purchased a 20-acre parcel of land in

Hennepin County, Minnesota, in the city of Shorewood

(Johnson property). The Plaintiffs use the land as a hobby

farm and live close by. A drainage ditch runs from the

northeast corner to the southwest corner of the property.

After it exits the property, the ditch is crossed by a road

berm and joins with a control pond that is located on

property belonging to the city of Shorewood. Much of the

Plaintiffs’ Complaint relates to the construction of this

control pond, the road berm, and the subsequent flooding

upon their property that it caused.

The Johnson property is listed as wetland on the

National Wetland Inventory (NWI) map. The Johnsons

App. 53

dispute this designation. The NWI map for the area in

which the Johnson property is located was created from

aerial photographs taken in May of 1980.

In 1984, the city of Shorewood and Trivesco, a com-

mercial developer, began developing the area to the south

of the Johnson property. Trivesco and an agent for the city

of Shorewood requested authorization from the U.S. Army

Corps of Engineers (Corps), under the Clean Water Act, to

place fill in a wetland area in order to accommodate

residential development. The Corps responded that the

proposed work was already covered by an existing nation-

wide permit, issued in 1982, that authorized the filing of

“headwaters wetlands,” and, therefore, did not require an

individualized review. The Corps administers § 404 of the

Federal Water Pollution Control Act (Clear Water Act) in

the State of Minnesota. 33 U.S.C. § 1344 and 33 C.F.R.

Parts 320-331.

Also in 1984, the city built a road berm and a control

pond on city property next to the Johnson land both for

aesthetic reasons for the nearby development, and to serve

as a collection point for storm water runoff. The pond

construction included a pond control structure which was

designed to maintain its water level. However, despite

this, the pond extends onto the Johnson property, espe-

cially during heavy rainfall.

LITIGATION HISTORY

There have been several cases filed in both state and

federal court regarding the Johnson property, which we

summarize below. —

App. 54

in 1991, the Johnsons brought suit against the city of

Shorewood and various other parties in Minnesota State

Court, alleging a taking under both the United States and

State of Minnesota Constitutions. Johnson v. City of

Shorewood, et. al., No. 91-18099 (Minn. D. Ct. 1993). After

trial, the court found that a physical taking had occurred,

due to Shorewood’s construction of the control pond

structure, and issued a writ of mandamus to compel

condemnation proceedings. However, the court rejected

the Johnsons’ claim of a regulatory taking. Jd. slip op. at 5.

The court awarded costs and attorney fees to the Plain-

tiffs.

In an unpublished opinion, the Court of Appeals of the

State of Minnesota affirmed the trial court’s ruling.

Johnson v. City of Shorewood, et. al., No. CX-9.-2452

(Minn. App. 1994).

Subsequently, the city of Shorewood filed a condemna-

tion action in Minnesota State Court. The court-appointed

commissioners found damages to the Johnson property in

the amount of $5,000. The Johnsons appealed these

findings to the State District Court and obtained a jury

trial. The jury found that the Johnsons were entitled to

$65,000 ($63,000 in clean up damages and $2,000 for the

value of the permanent easement taken by the city).

However, the court set aside $2,000 of the award as

inconsistent with the jury’s findings of fact. The Court of

Appeals of Minnesota denied the city’s appeal. City of

Shorewood v. Johnson, et. al., No. C5-97-1525 (Minn. App.

1998). The final result of this litigation was an award to

the Johnsons of over $183,000 (in compensation, interest,

costs and fees). City of Shorewood v. Johnson, order filed

November 5, 1999 (Minn. D. Ct.).

App. 55

In 2000, the Johnsons filed suit in the U.S. District

Court for the District of Minnesota against the United

States Government, the Corps, and various other defen-

dants including local governments, local officials, and

private developers. The Plaintiffs’ claims included physical

takings, regulatory takings, FOIA violations, common law

torts, and constitutional torts. Johnson v. City of Shore-

wood, et. al., No. 00-CV-1281 (2001). The District Court

dismissed the complaint against the United States and

other federal defendants for lack of jurisdiction. Jd. slip op.

at 2.

The Plaintiffs appealed this ruling to the U.S. Court of

Appeals for the Eighth Circuit on August 10, 2001. At oral

argument, the Plaintiffs’ Counsel stated that this appeal is

currently pending before the Eighth Circuit.

In the instant suit, filed with this Court on August 9,

2001, the Plaintiffs allege both physical and regulatory

takings of their property by the Government. They claim

the Government took their property physically by flooding

it and committed a regulatory taking by designating it a

wetland flood plain. Contained within Plaintiffs’ Com-

plaint are also various claims that sound in tort against

the U.S. Army Corps of Engineers, including allegations

that the Corps made misrepresentations. Further, the

Plaintiffs allege that the Corps and other Government

actors committed unauthorized acts by both breaking and

failing to enforce laws. Finally, the Plaintiffs allege that

the Government breached an implied-in-fact or express

contract to revise its wetland maps in order to reflect their

assertion that the Johnson property is not a wetland.

* * *

nee

———.

App. 56

II. Plaintiffs’ claims that sound in tort, or alterna-

tively, are based upon acts not authorized by

Congress, fail because this Court lacks subject

matter jurisdiction over them.

The Plaintiffs allege several times in their Complaint

that the Corps and the United States engaged in misrep-

resentations. See, e.g., Complaint (August 9, 2001), pp. 5 &

8. The Plaintiffs’ claims include an allegation that the

Corps made misrepresentations to the state trial court

regarding the wetland status of their property, during

their takings lawsuit, filed in 1991. The Plaintiffs allege

further misrepresentations later in their filings, which we

incorporate in this ruling. See, e.g., Plaintiffs’ Memoran-

dum in Opposition to Defendant’s Motions (May 20, 2002),

p. 35.

The jurisdiction of this Court extends to “any claim

against the United States found either upon the Constitu-

tion... . or for liquidated or unliquidated damages in cases

not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2003). Be-

cause the Plaintiffs’ claims for misrepresentation and

other wrongful acts sound in tort, this Court lacks juris-

diction to hear them. See, e.g., Brown v. United States, 105

F.3d 621, 623 (1997). The Counsel for the Plaintiffs con-

ceded this point at oral argument. Further, this Court

lacks jurisdiction in takings cases where the gravamen of

the complaint is not the taking, but rather the fraudulent

nature of the alleged taking. Jd.

As to the Plaintiffs’ claims of illegal conduct, including

statutory violations, this Court similarly lacks jurisdiction

to hear claims of unauthorized Government conduct as a

basis of a taking claim without a previous test of validity

of the issues under the Administrative Procedures Act (5

U.S.C. § 702 and ff). See Florida Rock Industries, Inc. v.

App. 57

United States, 791 F.2d 893, 899 (Fed. Cir. 1986). Because

there has been no such determination here, this Court

lacks jurisdiction to hear these claims.

III. Plaintiffs’ claim of breach of an implied-in-fact

contract by Defendant fails to state a claim for

which relief can be granted.

Contracts with the United States may be either

express or implied; this Court possesses jurisdiction over

both types of contracts. 28 U.S.C. § 1491(a)(1) (2003). The

Plaintiffs allege a “Contract with the Corps of Engineers to

Correct the Wetland Maps.” Complaint (August 9, 2001) p.

4. However, the Plaintiffs fail to allege with specificity the

elements of a contract. Even if we take their allegations as

true, a contract was not formed between the Johnsons and

the Corps. The Johnsons allege that:

On and about 1996, the Corps agreed that it

would change the designation of Johnsons’ prop-

erty as a “wetland” on its hydrological maps, if, a

federal wetland delineator, of the Corps’ choosing

were to demonstrate that the flooded property

was not a wetland before installation of the dam.

Complaint, (August 9, 2001) p. 4. The Johnsons produce no

written agreement or other documentary evidence to

support this claim.

The Federal Circuit has stated that,

any agreement can be a contract within the mean-

ing of the Tucker Act, provided that it meets the

requirements for a contract with the Government,

specifically: mutual intent to contract including

an offer and an acceptance, consideration, and a

App. 58

Government representative who had actual au-

thority to bid the Government.

Trauma Serv. Group v. United States, 104 F.3d 1321, 1326

(Fed. Cir. 1997). Because the Plaintiffs have not

perfected their allegations, and identified with

particularity supporting evidence, the Court will

allow them until December 18, 2003, to amend the

Complaint on this point.

CONCLUSION

Because we have ruled in favor of the Government on

the foregoing grounds, we need not address the Defen-

dant’s arguments that the Plaintiffs’ claims are barred by

collateral estoppel, that they lack standing to bring this

suit, or that 28 U.S.C. § 1500 bars this Complaint.

Counts I and II of the Complaint are dismissed,

as are the rest of the allegations contained within

the Complaint with the exception of Plaintiffs’ claim

of breach of an implied-in-fact contract by the

Defendant. Consequently, the Clerk is directed not

to enter judgment for the United States until fur-

ther notice.

ITISSO ORDERED. _/s/ Lawrence M. Baskir

LAWRENCE M. BASKIR

Judge

App. 59

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 01-465 L

RONALD RICHARD JOHN-

SON, AND

DEE LUNDBERG JOHNSON,

JUDGMENT

Vv.

THE UNITED STATES

Pursuant to the court’s Opinion, filed April 1, 2004,

IT IS ORDERED AND ADJUDGED this date, pursuant to

Rule 58, that the complaint is dismissed.

Brian Bishop

Clerk of Court

April 5, 2004 By: [Illegible]

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see RCFC

08.1, re number of copies and listing of all plaintiffs.

Filing fee is $255.00.

App. 60

CITY OF SHOREWOOD, petitioner, Appellant,

Vv.

Ronald R. JOHNSON, et al., Respondents,

and

FIRST BANK NATIONAL ASSOCIATION,

Soutidale office, Defendant.

No. C5-97-1525.

Court of Appeals of Minnesota.

April 21, 1998.

Hennepin County District Court File No. CD2344

Considered and decided by DAVIES, Presiding Judge,

TOUSSAINT, Chief Judge, and KALITOWSKI, Judge.

UNPUBLISHED OPINION

DAVIES, Judge.

In this condemnation proceeding, appellant argues

that the trial court erred by denying its motions for JNOV

or a new trial. Respondents a'’ese the court erred by

denying their motion for contempt and by granting appel-

lant’s motion to exclude loss-of-access evidence. We affirm.

FACTS

In 1984, appellant City of Shorewood built a pond

and control structure on city property. The control struc-

ture blocks a ditch that drains abutting property owned

by respondents Ronald R. and Dee L. Johnson. Although

the control structure is designed to maintain the pond’s

water level at a 910-foot elevation, the pond regularly

rises to a level of 914 feet, flooding a portion of respon-

dents’ property. In addition, there was temporary flooding

App. 61

to a higher level as a consequence of an inadequate road

culvert.

In 1991, respondents sued appellant, alleging that the

flooding constituted a compensable taking of their prop-

erty. The trial court found there had been an irreversible

physical taking of all property below 914 feet and ordered

appellant to initiate condemnation proceedings. We

affirmed that order. Johnson v. City of Shorewood, No. CX-

93-2452 (Minn.App. May 17, 1994), review denied (Minn.

July 15, 1994).

After condemnation commissioners awarded respon-

dents $2,000 for the easement value of the land and $3,000

as a “cost-to-cure damage,” respondents appealed to tne

district court. During that appeal, respondents moved to

hold appellant in contempt, alleging that, because of a

faulty legal description, appellant failed to condemn al!

property below the 914-foot elevation. The trial court

denied the motion. The condemnation matter finally went

to trial in 1996. Appellant brought a motion in limine,

which the trial court granted, to exclude evidence that the

taking deprived respondents of access to the northwest

quadrant of their property.

The jury returned a special verdict awarding respon-

dents (1) $2,000 for the easement, (2) $0 for the difference

between the pre- and post-takings fair market value of

their property, and (3) $63,000 for clean-up damages.

Finding that the first two awards were inconsistent, the

court held that respondents were not entitled to any

damages for the loss of value in their property and entered

judgment for $63,000.

The city moved for JNOV or a new trial. The city

appeals that denial of its motion, and respondents appeal

App. 62

the court’s denial of their contempt motion and its grant of

appellant’s motion to exclude loss-of-access evidence.

DECISION

Judgment notwithstanding the verdict (JNOV) shall

be granted “if the moving party would have been entitled

to a directed verdict at the close of the evidence.”

Minn.R.Civ. P. 50.02(a). The trial court’s decision to deny a

motion for JNOV will be affirmed unless “the evidence is

practically conclusive against the verdict.” Seidl v. Troll-

haugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239

(1975). .

Appellant characterizes the jury’s award to respon-

dents as “cost-to-cure” damages and argues that respon-

dents are precluded from collecting such damages because

the jury found no difference between the pre- and post-

takings market walue of respondents’ property. See Bulle-

tin Publ’g Corp. v. City of Cottage Grove, 379 N.W.2d 685,

687 (Minn.App.1986) (when cost of restoring property to

natural condition is less than difference in pre- and post-

takings value, property owner is entitled to collect restora-

tion costs and nothing more); see also Alexandria Lake

Area Serv. Region v. Johnson, 295 N.W.2d 588, 590

(Minn.1980) (restoration damages awarded in certain

cases to restore remaining property to usable condition).

In a partial takings case, the correct measure of

damages is

the difference between the fair market value of

the entire piece of property immediately before

App. 63

the taking and the fair market value of the re-

mainder of the property after the taking.

State by Humphrey v. Strom, 493 N.W2d 554, 558

(Minn.1992).

To determine the fair market value of property in

a condemnation proceeding “[alny competent

evidence may be considered, if it legitimately

bears upon the market value.”

County 2f Ramsey v. Miller, 316 N.W2d 917, 919

(Minn. 1982) (quoting State v. Malecker, 265 Minn. 1, 5, 120

N.W.2d 36, 38 (1963)).

Here, the court allowed the jury to consider clean-up

costs because the cost of cleaning up damage from flooding

“legitimately bears upon the market value” of respondents’

property. Appellant argues that, because the jury found no

diminution in the pre- and post-takings market value of

respondents’ property, respondents are precluded from

collecting clean-up damages. We disagree, for the jury’s

response to the third special verdict question was not

necessarily predicated on its response to the prior ques-

tions. The jury may have found there was no diminution in

market value from the taking enly because respondents

prevented a diminution in market value by restoring their

property to its pre-flood condition, incurring significant

costs in doing so. If respondents had not cleaned up the

damage, the property’s fair market value would have been

diminished because potential buyers would have sub-

tracted clean-up expenses from the price they would pay

for the property. The trial court did not misinterpret the

rule of damages and did not err in denying appellant’s

motion for JNOV.

App. 64

Il.

Appellant argues that the trial court, in denying its

new trial motion, left uncorrected two errors of law. Where

a court’s new-trial decision is based on an error of law, a de

novo standard of review applies. Halla Nursery, Inc. v.

Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990).

Appellant first claims the court erroneously admitted

evidence of damages that occurred above the 914-foot

elevation contour. But in a partial taking,

[tlhe owner is entitled to compensation not only

for the part taken but also for damage to the part

not taken. This is implicit in the rule given to ju-

rors that they are to measure the damages by the

difference in the market value of the entire tract

before the taking and the market value of the

tract remaining.

State by Lord v. North Star Concrete Co., Parcel Channel

Change No. 26, ?65 Minn. 483, 483, 122 N.W.2d 118, 122-

23 (1963) (emphasis added). If flooding of respondents’

property resulted in damage to trees, vegetation, or soil

outside the flooded area, the jury was entitled to consider

that damage in determining the amount of compensation

to be paid. Here there was evidence of such damages.

Appellant also argues that the trial court should have

instructed the jury on respondents’ duty to mitigate

damages. A trial court has broad discretion in determining

jury instructions. State Farm Fire & Cas. Co. v. Short, 459

N.W.2d 111, 113 (Minn.1990). An appellate court will

reverse only when a jury instruction is an abuse of discre-

tion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986).

~~ —— ee se ee

App. 65

Although a property owner in a takings case “must

exercise reasonable diligence to minimize his damages, the

extent of the duty imposed by the rule depends on the facts

of each case.” State by Lord v. Casey, 263 Minn. 47, 54, 115

N.W.2d 749, 755 (1962). Here, Ronald Johnson testified that

afte: the flooding occurred he spent more than 3,400 hours

removing dead trees and debris and that his time was

worth $20 per hour. The city presented testimony that the

ditch could more reasonably have been cleaned up with a

bulldozer and reseeded at a cost of $4,500.

When reviewing a jury verdict, we “consider the

evidence in a light most favorable to the verdict and

sustain that verdict if possible, on any reasonable theory

of evidence.” Dang v. St. Paul Ramsey Med. Ctr. Inc., 490

N.W.2d 653, 659 (Minn.App.i992), review denied (Minn.

Dec. 15, 1992). The record Supports respondents’ claim

that the fragile nature of their property precluded the use

of heavy machinery to remove the dead trees and debris

caused by the flooding. On this record, the jury could have

found that respondents’ valuation of the time and effort to

clean up the property was reasonable and rejected appel-

lant’s claim that these costs were unreasonable. The trial

court did not err in refusing to instruct the jury on mitiga-

tion of damages, for the issue was not mitigation. Rather,

the issue was the reasonableness of the means chosen to

restore the property.

It was not error to deny the new trial motion.

* * *

Affirmed.

App. 66

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL

DISTRICT

City of Shorewcod,

Plaintiff, Case No. CD2344

wil FINDINGS OF FACT,

. CONCLUSIONS OF LAW

Ronald R. Johnson and AND ORDER FOR

Dee L. Johnson, JUDGMENT

Defendant. (Filed Oct. 23, 1996)

The above-entitled matter came on for a Jury Trial on

the 14th day of October, 1996 before the undersigned, a

Judge of the District Court, Hennepin County Government

Center, Minneapolis, Minnesota.

Larry D. Martin, Esq. and Timothy J. Keane and

Sharna A. Wahlgren, Esq. appeared for and on behalf of

_ the Petitioner, the City of Shorewood and Daniel Shulman

and David Shulman, Esq. appeared for and on behalf of

the Respondents, Ronald R. Johnson and Dee L. Johnson.

The matter was submitted for consideration by the

Jury on October 22, 1996. The Jury returned answers on a

Special Verdict Form on October 23, 1996 and the Court

adopted its verdict to make the foilowing:

FINDINGS OF FACT

The Court adopts as facts, the following Findings of

the Jury dated October 23, 1996:

Te eee eee

Oe ee OP eee

Poet eee 5

App. 67

1. What amount of money, if any, will compensate

the Johnsons for the easement actually taken?

ANSWER: $2,000.00

2. What damages, if any, do you award the John-

sons as the difference between the fair market

‘value of the entirety of their property before the

City’s taking and the fair market value of the

remainder of their property after the City’s tak-

ing?

ANSWER: $ -0-

3. What damages, if any, do you award the John-

sons as the reasonable cost of clean-up arising

out of the City’s taking of their property?

ANSWER: $63,000.00

CONCLUSIONS OF LAW

1. The Jury, finding that the difference between the

fair market value of the entirety of the property before the

City’s taking and the fair market value of the remainder of

the property after the City’s taking was zero, the Respon-

dents *re not entitled to any damages for the loss of value

in their property. However, the Jury found that the

Respondents are entitled to $63,000.00 as a reasonable

cost of clean-up arising out of the City’s taking of their

property.

IT IS HEREBY ORDERED:

1. That the Respondents, Ronald R. Johnson and

Dee L. Johnson are entitled to judgment against the

Petitioner, the City of Shorewood, in the amount of

$63,000.00 together with their costs and disbursements

herein.

App. 68

LET JUDGMENT BE ENTERED ACCORD-

INGLY.

Judgment will be stayed for 30 days from the

date hereof.

BY THE COURT

Dated: Oct. 24, 1996 /s/ Allen Oleisky

Allen Oleisky

Judge of District Court

App. 69

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

City of Shorewood,

Petitioner .

TRIAL TRANSCRIPT

v8. VOLUME 10-22-96

Ronald Johnson and D.C. File CD-2344

Dee Johnson, et al.,

Respondents.

The above-entitled matter came duly on for hearing

before the Honorable Allen Oleisky, Judge of the above-

named Court, on the 22nd day of October, 1996, at Court-

room 1853, Hennepin County Government Center, Min-

neapolis, Minnesota.

Witness: Ronald P. Peterson

* * *

A. OK. Until 1984, we did not have any of the wet-

land-delineation manuals that we have today. There are

two manuals, one is the 1987 Corps of Engineers Wetland-

Delineation Manual and the other is the 1989 Federal

Manual for Identifying and delineating Jurisdictional

Wetlands.

At the current time, the ‘89 manual is not in use. The

‘87 manual is the one that is applied both by state and

federal agencies under the law today. In 1984 —

Q. Let me stop you right there. You’re going a little

bit fast for me. In 1987, the Corps of Engineers prepared a

manual?

A. That is correct.

App. 70

Q. And this manual helps people like yourself to

delineate wetlands?

A. It is the guidance that we — all wetland delinea-

tors have to go by in identifying and delineating wetlands

today.

Q. That started in 1987?

A. That is correct.

* * *

Q. Yeah. Now, you said you — you made an Affidavit

saying that when you talk about Mr. Johnson excavating

the ditch, you made an Affidavit, didn’t you, saying that in

your opinion Mr. Johnson would need a permit from the

Corps of Engineers in order to do the work that he did in

that ditch?

A. Based on three letters from the Corps, yes.

Q. Well, let me show you Exhibit 26 in evidence. Do

you see that?

A. Yes, I do.

Q. Have you seen it before?

A. Yes, I have.

Q. And that says that Mr. Johnson, the work that

Mr. Johnson was doing in his ditch was exempt. Right?

A. Mr. Johnson —

Q. Is that what it says?

App. 71

A. Yes. Not the work that he did in 1995. If he were

to do that work after the date of this exemption, it would

have been exempt.

Q. Yeah. OK. So -

[58] A. He did the work and then applied for the

exemption.

Q. And he got the exemption. Right?

A. Yes.

Q. So he didn’t need a permit, did he, to do the work

you said he needed to do?

A. He needed to get confirmation from the Corps

that he didn’t need a permit.

Q. He got that confirmation?

A. He got — He got confirmation that he has an

exemption for ditch maintenance.

Q. You said he needed a permit, right —

A. Yes.

Q. -in your sworn Affidavit?

A. Based on what the Corps said and based on what

I thought.

Q. And you were wrong, weren’t you?

A. I think he needed a permit for what he did be-

cause I think I saw evidence that he went beyond the

original profile of the ditc

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