Downing/Salt Pond Partners v. State of RI and Providence, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; David H. Souter, Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Published. [10-1484]

Case: 10-1484 Document: 00116211732 Page: 1

Date Filed: 05/23/2011

Entry ID: 5552422

United States Court of Appeals
For the First Circuit
No. 10-1484
DOWNING/SALT POND PARTNERS, L.P.,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
William R. Landry, with whom Karen Pelczarski and Blish &
Cavanagh LLP were on brief, for appellant.
Michael Rubin, Assistant Attorney General, with whom Patrick
C. Lynch, Attorney General, was on brief, for appellees.
Brian A. Goldman on brief for appellee Coastal Resources
Management Council.
J. David Breemer on brief for amicus curiae Pacific Legal
Foundation.

May 23, 2011

*

The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

Case: 10-1484 Document: 00116211732 Page: 2

LYNCH, Chief Judge.

Date Filed: 05/23/2011

Entry ID: 5552422

Downing/Salt Pond Partners, L.P.,

frustrated by two state agencies' restrictions on its development
of a coastal residential subdivision in Narragansett, Rhode Island,
appeals the district court's dismissal of its federal takings
claims under the Supreme Court's ripeness requirements for such
claims, set forth in Williamson County Regional Planning Commission
v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).
Downing argues that it is excused from one Williamson
County requirement, that it pursue any "adequate procedure for
seeking just compensation" that state law provides, id. at 195,
under a decision of this court.

It argues it is excused from the

other Williamson County ripeness requirement, that the relevant
government agency has reached a "final decision regarding the
application of the regulations to the property at issue," id. at
186, because the state agency has not yet entered a final decision
despite Downing's repeated requests that it do so.

We affirm the

dismissal of the complaint, reaching only the first issue. We hold
again that Rhode Island's inverse condemnation procedure satisfies
the Williamson County requirements and must be followed.

See

Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 93 (1st
Cir. 2003).
I. Standard of Review
We review de novo the legal question of whether the
district court properly dismissed Downing's complaint as unripe for

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Entry ID: 5552422

lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
Deniz v. Municipality of Guaynabo, 285 F.3d 142, 144 (1st Cir.
2002).

We

accept

the

well-plead

factual

allegations

in

the

complaint as true and make all reasonable inferences in favor of
the plaintiff.
also

consider

Id.
other

In resolving a Rule 12(b)(1) motion, we may
materials

in

the

district

court

record,

including where those materials contradict the allegations in the
complaint.

Aguilar v. U.S. Immigration & Customs Enforcement, 510

F.3d 1, 8 (1st Cir. 2007); Gonzalez v. United States, 284 F.3d 281,
288 (1st Cir. 2002).
II. Factual Background
A. Facts as Alleged in the Complaint
In 1992, Downing secured a land use permit, called an
Assent, from the Rhode Island Coastal Resources Management Council
(CRMC), in order to develop a residential community on a tract of
land it owns in Narragansett.

Between 1992 and 2007 Downing built

homes

planned

on

twenty-six

of

the

seventy-nine

lots

in

the

subdivision, installed community infrastructure such as roads and
a sewer line, and began infrastructure improvements necessary to
build on the remaining lots.

While Downing failed to attach a copy

of the Assent to its complaint, Downing alleged that none of the
Assent's thirty-four stipulations and conditions required it to
perform any archaeological or historical surveys on the tract of
land.

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Entry ID: 5552422

In 2007, a second state agency, the Rhode Island Historic
Preservation

and

Heritage

Commission

(HPHC)

"became

keenly

interested in the site of the Salt Pond Residences project from a
cultural and archaeological perspective."

This was because many

artifacts had been found in the course of the Salt Pond development
project indicating that the land was likely a former Narragansett
Indian settlement.

These artifacts included digging and grinding

tools, fragments of ceramic and stone vessels and a pipe, and
projectile points.

Downing alleges the HPHC then "concluded that

[the land] should be preserved for the benefit of the public at
large and not developed at all," and encouraged the CRMC to
withdraw the project's CRMC Assent.

A July 11, 2007 letter from

the HPHC Executive Director to the CRMC, Downing alleges, stated
that HPHC "was resolved 'to acquire title to the [site] in order to
assure its preservation'" (alteration in Complaint).
The CRMC sent Downing a letter dated August 22, 2007
stating that the Assent "is still valid and remains valid pending
a determination by the [CRMC] on the issues raised by the Historic
Preservation And Heritage Commission" (alteration in Complaint).
In

a

June

confirmed

2008
that

HPHC
it

had

memorandum,1
recommended

Downing
to

the

alleges,
CRMC

the

that

HPHC

either

construction be prohibited or a "complete archaeological data

1

The Complaint does not state whether the memorandum was
addressed to the CRMC or to Downing.
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Case: 10-1484 Document: 00116211732 Page: 5

recovery"

project

construction.

be

required

Date Filed: 05/23/2011

as

a

condition

Entry ID: 5552422

of

further

Downing estimates that such a data recovery project

would cost six million dollars.
Downing alleges that a year after the initial CRMC
letter,

on

August

21,

2008,

following

a

series

of

informal

discussions with the HPHC that did not resolve the dispute, it
formally requested that the CRMC submit the matter for hearing. On
December

17,

2008

it

submitted

to

the

CRMC

a

legal

opinion

memorandum and supporting materials from its lawyers arguing that
the CRMC and HPHC were violating the United States and Rhode Island
Constitutions' takings clauses.
On February 23, 2009, Downing formally notified the HPHC
that it would resume construction under its permits absent some
response from the agencies.

There is no evidence in the record as

to whether further communications took place during the months
after this February 23 notice.
Downing alleges that neither agency ever responded to any
of these communications.

The defendants deny that they were

nonresponsive, asserting to us as they did to the district court
that during the two-year period at issue, informal negotiations
were ongoing between the parties to try to resolve the issue.
On June 27, 2009, Downing resumed construction. The same
day, the CRMC issued a cease and desist order.

Downing did not

place the order into the district court record, and has not

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Entry ID: 5552422

described its contents except to claim that the order did not
specify how Downing's conduct violated its permits.

On July 15,

2009, Downing formally requested a hearing before the CRMC in order
to contest the cease and desist order.

Downing alleges that it had

heard no response by the CRMC to this request by August 6, 2009.
On this day, Downing says, it then sent a "final notice" to the
CRMC warning that if the CRMC did not promptly respond, Downing
would conclude that its pursuit of administrative remedies was
futile and would "proceed accordingly."
Downing alleges that the CRMC did not respond to this
final notice, though Downing did not wait long for it to do so.
Less than three weeks later, on August 24, 2009, Downing filed its
complaint in federal court alleging, inter alia,2 that the state,
CRMC, and HPHC had taken its property for public purposes without
just compensation, and denied it substantive and procedural due
process and equal protection under the law. Downing sought damages
and prospective injunctive relief.
On December 30, 2009, the CRMC issued to Downing a notice
of

hearing

on

the

issues

surrounding

Downing's

Assent.

The

district court noted in its March 26, 2010 opinion that in February
2010 the parties had "agreed that the matter would be referred to

2

Downing also alleged under federal law that the agencies
had conspired to violate Downing's civil rights.
Under Rhode
Island law, Downing also alleged that the agencies had
intentionally interfered with its advantageous business relations.
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Date Filed: 05/23/2011

a CRMC subcommittee for an expedited hearing."

Entry ID: 5552422

Downing/Salt Pond

Partners, L.P. v. Rhode Island, 698 F. Supp. 2d 278, 279 & n.1
(D.R.I. 2010). At oral argument in this court, counsel for Downing
explained that this hearing process was ongoing.3
B. Motion to Dismiss in the District Court
Rhode Island moved to dismiss for lack of subject matter
jurisdiction, arguing that Downing had failed to meet either of the
Williamson County ripeness requirements for federal Takings Clause
claims, and that its other claims were coextensive with the takings
claims and should be subject to the same requirements.
responded that it was excused from both requirements.

Downing
As to the

requirement that it seek compensation in state court, Downing
argued that Rhode Island provided no "reasonable, certain and
adequate" procedures "for obtaining compensation."

Williamson

County, 473 U.S. at 194 (quoting Reg'l Rail Reorg. Act Cases, 419
U.S. 102, 124-25 (1974)) (internal quotation marks omitted).

This

argument was based on language in an opinion in a case under Puerto
Rico law that distinguished between "general remedial cause[s] of
action under state law" and "procedures specifically designed by
the state" to provide compensation for takings.

Asociación De

Subscripción Conjunta Del Seguro De Resonsabilidad Obligatorio v.

3

According to Downing's counsel, the CRMC subcommittee had
conducted four or five hearings over several months. That stage of
the process had concluded. The parties had still to submit closing
written submissions, after which the subcommittee would make a
recommendation to the full CRMC.
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Date Filed: 05/23/2011

Flores Galarza, 484 F.3d 1, 17 (1st Cir. 2007).

Entry ID: 5552422

Downing argued

this language overruled an earlier decision of this court, Pascoag,
which affirmed a dismissal under Williamson County for failure to
use Rhode Island's inverse condemnation procedure.
337

F.3d

at

92-93.

Downing

also

argued

that

See Pascoag,
the

finality

requirement was inapplicable to "direct or physical takings such as
are

alleged

here,"

and

in

the

alternative

administrative proceedings would be futile.

that

further

Downing did not

respond to Rhode Island's argument that its non-takings claims
should be dismissed along with its takings claims and did not
assert that those claims were not also subject to the ripeness
constraints.
The district court, in a thoughtful and well-reasoned
opinion, granted the motion to dismiss all of Downing's state and
federal claims.

Downing/Salt Pond Partners, 698 F. Supp. 2d 278.

The court found Downing's argument that it was excused from the
state litigation requirement to be foreclosed by binding First
Circuit precedent holding that Rhode Island's procedures were
available and adequate under the Williamson County ripeness test.
Downing, 698 F.Supp.2d at 284 (citing Pascoag). The court rejected
Downing's

argument

Pascoag.

Id.

that

Flores

Galarza

implicitly

overruled

As to Downing's remaining claims, including its

federal due process claims, the court found that "Downing has
merely '[d]ress[ed] a takings claim' in several other costumes,"

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Entry ID: 5552422

and concluded that all of the claims failed on ripeness grounds
under Williamson County as well.
F.3d

at

149)

(alteration

in

Id. at 290 (quoting Deniz, 285

original).

Downing

appeals

the

dismissal of its claims.
III. Analysis of the Williamson County Ripeness Prongs
A. Takings Claim Ripeness Requirements
In Williamson County, the Supreme Court held that the
nature of a federal regulatory takings claim gives rise to two
ripeness requirements which plaintiffs bear the burden of proving
they have met before a federal court has jurisdiction over a
takings claim.

Williamson County, 473 U.S. at 186; García-Rubiera

v. Calderón, 570 F.3d 443, 521 (1st Cir. 2009) ("Plaintiffs have
the burden of demonstrating ripeness.").

These two requirements

arise because "there is no uncompensated taking," and therefore
nothing

to

litigate

in

federal

court,

"until

the

state

has

established (a) what it has taken, and (b) its refusal to pay 'just
compensation.'"

Pascoag, 337 F.3d at 91 (quoting SGB Fin. Servs.,

Inc. v. Consol. City of Indianapolis-Marion Cnty., Inc., 235 F.3d
1036, 1038 (7th Cir. 2000)).
requirements.

Downing argues it is exempt from both

We discuss each in turn.

First, a regulatory takings claim is not ripe until the
relevant government entity has "reached a final decision regarding
the application of the regulations to the property at issue."
Williamson County, 473 U.S. at 186. Determining whether regulatory

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Entry ID: 5552422

action has resulted in a taking involves a complex inquiry into
facts that "simply cannot be evaluated until the administrative
agency has arrived at a final, definitive position regarding" its
application of the law to the land in question.
also

Palazzolo

Generally

v.

Rhode

plaintiffs

Island,

must

533

complete

U.S.

Id. at 191; see

606,

ordinary

618

(2001).

administrative

processes before the impact of regulatory restrictions can be
determined with reasonable certainty.

Palazzolo, 533 U.S. at 621.

The second ripeness requirement, which is the focus of
our

analysis,

arises

because

the

Fifth

Amendment

"does

not

proscribe the taking of property; it proscribes taking without just
compensation."
"if

a

State

Williamson County, 473 U.S. at 194.
provides

an

adequate

procedure

for

As a result,
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." Id. at 195. This is sometimes referred
to as a "state litigation" requirement.4

See San Remo Hotel, L.P.

v. City & Cnty. of San Francisco, 545 U.S. 323,
(Rehnquist, C.J., concurring).

349 (2005)

Further, the compensation need not

be paid in advance or at the time of the taking, as long as there
is

a

procedure

in

place

at

the

4

time

of

the

taking

that

is

In adopting this "state litigation" terminology we do not
mean to suggest that the requirement would not encompass a nonjudicial state procedure that was otherwise adequate and available
under Williamson County.
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"reasonable,

certain

compensation."

and

Date Filed: 05/23/2011

adequate

.

.

.

for

Entry ID: 5552422

obtaining

Williamson County, 473 U.S. at 194 (quoting Reg'l

Rail Reorg. Act Cases, 419 U.S. at 124-25) (internal quotation
marks omitted).
alleged

taking

In Williamson County itself, at the time of the
an

inverse

condemnation

cause

of

action

was

available under state law, and the state courts had permitted its
invocation in cases of regulatory takings as well as physical
takings.

Id. at 196.

Because the plaintiff in Williamson had

neither pursued an inverse condemnation proceeding nor shown that
it was "unavailable or inadequate," its claim was unripe.

Id. at

196-97.
Under the Williamson County ripeness rules a plaintiff
might be precluded from ever bringing a takings claim in federal
court if the substance of the federal claim is litigated in state
court. The Supreme Court squarely confronted this situation in San
Remo Hotel, in which it acknowledged this implication of Williamson
County and refused to create an exception from ordinary preclusion
rules and the full faith and credit statute, 28 U.S.C. § 1738,
whenever "a case is forced into state court by the ripeness rule of
Williamson County."

San Remo Hotel, 545 U.S. at 342.

The Court

held that there was no absolute "right to vindicate . . . federal
claims in a federal forum . . . . even when the plaintiff would
have preferred not to litigate in state court, but was required to

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do so by statute or prudential rules" like the Williamson County
requirements.5
The

Id.
Supreme

Court

has

continued

to

adhere

to

the

Williamson County state litigation rule, despite Chief Justice
Rehnquists's concurrence in San Remo Hotel encouraging the Court to
reconsider the rule.6

In San Remo Hotel itself, twenty years after

Williamson County, the Court expressly refused to soften the
effects of the rule on takings plaintiffs' access to the federal
courts.

See id. at 341-42.

Since San Remo Hotel, the Court has

repeatedly denied petitions for a writ of certiorari that asked the
Court to abrogate the Williamson County state litigation rule.7

5

As a practical matter, the Court emphasized, because the
finality requirement was actually "settled well before Williamson
County," regulatory takings were already rarely litigated in
federal court.
San Remo Hotel, L.P. v. City & Cnty. of San
Francisco, 545 U.S. 323, 346-47 (2005). This was not concerning:
"State courts are fully competent to adjudicate constitutional
challenges to local land-use decisions" and "undoubtedly have more
experience than federal courts do in resolving the complex factual,
technical, and legal questions" they raise. Id. at 347.
6

Chief Justice Rehnquist explained that since joining the
Williamson County majority, he had come to think that "the
justifications for [the] state-litigation requirement are suspect,
while its impact on takings plaintiffs is dramatic" in that they
are often entirely precluded from a federal forum for their federal
takings claims.
Id. at 352.
He acknowledged that no party or
court had addressed the requirement's validity in San Remo Hotel,
but he invited the Court to reconsider in an appropriate case in
the future. Id.
7

See also Stop the Beach Renourishment, Inc. v. Fla. Dept.
of Envtl. Prot., 130 S. Ct. 2592, 2618 (2010) (Kennedy, J.,
concurring in part and concurring in the judgment) (recognizing
that "[u]ntil Williamson County is reconsidered, litigants will
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See, e.g., Agripost, LLC v. Miami-Dade Cnty., Fla., 129 S. Ct. 1668
(2009); Petition for Writ of Certiorari at i, Agripost, LLC, No.
08-567 (Oct. 27, 2008), 2008 WL 4757424; Howard v. City of Marion,
Ind., 547 U.S. 1179 (2006); Petition for Writ of Certiorari at i,
Howard, No. 05-1274 (Mar. 31, 2006), 2006 WL 895847.

Williamson

County, then, governs our analysis.
This court has held, under Williamson County, that a
takings claim against the state of Rhode Island was unripe where,
as here, the plaintiff had failed to pursue the state's inverse
condemnation cause of action.

Pascoag, 337 F.3d 87.

In Pascoag,

the plaintiff owned a lake abutted by state-owned land.

In 1964,

the state built a public boat ramp jutting into the lake, which the
public used as a point of access to the lake until at least 1997,
when Pascoag put up a "NO TRESPASSING" sign.

Id. at 90.

Rhode

Island won a judgment in the Rhode Island Supreme Court that it had
"acquired by adverse possession a small portion of the Lake bottom
(occupied by the boat ramp) and had acquired, on the public's
behalf, a prescriptive easement to use the boat ramp to access the
entire Lake for recreational purposes."

Id.

Pascoag then brought

an inverse condemnation action against Rhode Island in federal
court.

Id. at 89.

have to press most of their judicial takings claims before state
courts, which are 'presumptively competent . . . to adjudicate
claims arising under the laws of the United States'" (quoting
Tafflin v. Levitt, 493 U.S. 455, 458 (1990))).
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Without deciding "whether compensation is due when the
state acquires land by adverse possession or prescription," id. at
90, this court held that Pascoag had failed to show that Rhode
Island state remedies are "unavailable" or "inadequate," Williamson
County, 473 U.S. at 196-97, the "narrow" exceptions to the state
litigation requirement, Pascoag, 337 F.3d at 92. Those exceptions,
we held, encompass cases where state law "did not recognize the
taking that occurred, or did not permit the relief required to make
the plaintiff whole," for instance, where state law did not permit
an inverse condemnation cause of action for regulatory takings, or
where

such

actions

were

limited

to

monetary

plaintiff's damages were not quantifiable.

damages

and

the

Id. (citing cases).

Our opinion in Pascoag concluded:
Pascoag cannot show that Rhode Island's remedies were
inadequate or unavailable. The Rhode Island Constitution
prohibits the taking of private property for public use
without just compensation and Rhode Island state courts
have long allowed recovery through suits for inverse
condemnation. Thus, Rhode Island has an adequate process
available
to
address
Pascoag's
suit
for
just
compensation.
Id. at 93 (citations omitted).
Downing's arguments to the contrary rely on its reading
of Flores Galarza, which itself did not purport to overrule the
holding in Pascoag.8

In Flores Galarza, a divided panel held under

8

The majority did cite Pascoag for the proposition that
the finality requirement does not apply to physical takings claims,
but otherwise did not discuss Pascoag.
See Asociación De
Subscripción Conjunta Del Seguro De Resonsabilidad Obligatorio v.
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Entry ID: 5552422

Puerto Rico law that an unusual type of takings claim was ripe
because the plaintiffs were excused from fulfilling the Williamson
County requirements.

Flores Galarza, 484 F.3d at 13-20.

The

plaintiffs, a group of automobile insurers in Puerto Rico, sued the
Puerto Rico Secretary of the Treasury for withholding from the
insurers

insurance

premiums

generated

compulsory liability insurance program.

by

Puerto

Rico's

Id. at 6.

new

Under the

statutory scheme, the Commonwealth was to transfer to the insurers
insurance premiums paid when drivers renewed their licenses, but
the Commonwealth temporarily stopped doing so as a result of its
own

cash-flow

problems.

Id.

at

8-9.

The

insurers

sought

compensation for this temporary taking, including for the foregone
interest on the premiums and the amounts they were forced to pay
from their own funds for reimbursements to drivers that were
intended to be paid from the amounts retained by the Commonwealth.
Id. at 11.

They also sought compensation for the permanent taking

they alleged resulted from a change in the law that appropriated to
the

Commonwealth

insurance scheme.

certain

reserve

funds

accumulated

under

the

Id.

The majority opinion reasoned that the withholding of
funds amounted to a physical taking, not a regulatory one, id. at
15, and that because it involved "the direct appropriation of
funds,"

the

Williamson

County

requirements

Flores Galarza, 484 F.3d 1, 15 (1st Cir. 2007).
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were

wholly

Case: 10-1484 Document: 00116211732 Page: 16

inapplicable, id. at 19.

Date Filed: 05/23/2011

Entry ID: 5552422

The majority nonetheless discussed the

nature of the state litigation requirement, in language that
Downing reads as reframing the Williamson County state litigation
requirement:
The key component of this prong of Williamson County is
the availability of a [state] process that is
particularly aimed at providing compensation when
government action effects a taking. In our view, such
procedures do not include litigation of a state takings
claim or any general remedial cause of action under state
law. Rather, the Supreme Court must have had in mind
only those procedures specifically designed by the state
to avoid constitutional injury in the first instance by
providing a means for a plaintiff to obtain compensation
for the government's taking of property.
Id. at 16-17 (emphasis added) (citations omitted).

Downing relies

on this language to argue that if this is the standard, then
Pascoag must be reconsidered.
Downing also relies on other language in the majority
opinion that attempts to contrast inverse condemnation proceedings
with "any generally available state procedure that might provide a
remedy for an uncompensated taking."

Id. at 17.

The majority

concluded that if only the latter was available, a plaintiff need
not pursue it to satisfy Williamson County.9
purported

distinction

was

driven

9

in

part

by

Id. at 17.

This

reliance

the

on

As we explain below, Downing argues that Rhode Island's
judicially created inverse condemnation cause of action is
actually, under the framework of Flores Galarza, merely a
"generally available state procedure" rather than one "particularly
aimed" at addressing its specific type of claim.
See Flores
Galarza, 484 F.3d at 16-17.
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Entry ID: 5552422

concerns in Chief Justice Rehnquist's concurrence in San Remo Hotel
and the panel majority's consideration that the full Supreme Court
might respond to those concerns by narrowing or overruling the
state litigation requirement in the near future. See id. at 17-18.
As we have said, the Supreme Court has since refused to alter the
Williamson County state litigation requirement, and so that basis
has disappeared.
One judge concurred in the judgment, disagreeing strongly
with the majority's conclusion and analysis on the state litigation
rule.

The concurring opinion argued, "There is no support in

Supreme Court precedent for the conclusion that claimants are
relieved of the litigation requirement unless the state has adopted
specific processes . . . through which such compensation may be
recovered."

Id. at 38 (Howard, J., concurring in the judgment).

"It is not enough to show only that the adequacy of state process
remains unsure and undeveloped"; it must be affirmatively shown to
be unavailable or inadequate.

Id. at 40.

The majority's analysis was, as the district court in
this case recognized, called into question by the en banc court.
Three judges (a clear majority of the court's five active judges at
the time, four of whom participated in the matter) wrote in a
statement accompanying an order denying en banc review, "It appears
to us that the panel majority decision likely conflicts directly
with binding Supreme Court authority and prior decisions in this

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court, as well as the law in other circuits."

Entry ID: 5552422

Id. at 40 (statement

accompanying denial of reh'g en banc) (footnotes omitted).

The

three judges emphasized, as had the concurrence, that plaintiffs
must carry "the burden of demonstrating the absolute lack of . . .
a state proceeding" in which compensation could be available, and
that the court's precedent had previously determined that "such a
proceeding and a remedy may very well exist under the Puerto Rico
Constitution."

Id. at 41 (citing Deniz, 285 F.3d at 146-47).

Nonetheless, the court denied rehearing en banc because the case
had arisen on interlocutory appeal and error correction would be
available

if

necessary

on

appeal

from

final

judgment.

Id.

Moreover, the statement concluded, to the extent the majority
opinion had reached a result contrary to Supreme Court and First
Circuit precedent, it was without authority to do so.

Id. at 40.

As we explain below, we too now reject application of the language
and

reasoning

in

the

Flores

Galarza

majority

opinion

that

purportedly reworked the Williamson County state litigation test as
contrary to Supreme Court and circuit precedent.
B. Downing Is Not Excused from Meeting the State Litigation Prong
Downing acknowledges that it never initiated an inverse
condemnation proceeding in Rhode Island state court, but went
instead directly to federal court.
excused

from

Williamson

County's

Downing argues that it was
state

litigation

requirement

because Rhode Island's state law remedies are "unavailable" or

-18-

Case: 10-1484 Document: 00116211732 Page: 19

"inadequate."

Date Filed: 05/23/2011

Entry ID: 5552422

See Williamson County, 473 U.S. at 196-97; Pascoag,

337 F.3d at 92.

But we concluded in Pascoag that the Rhode Island

courts "have long allowed recovery through suits for inverse
condemnation.

Thus,

Rhode

Island

has

an

adequate

process

available" to takings plaintiffs, and plaintiffs must resort to it
before their federal takings claims will ripen.
at 93.

Pascoag, 337 F.3d

As the district court aptly stated, Pascoag "looks like a

trapdoor straight to state court for Downing."

Downing, 698

F. Supp. 2d at 282.
Downing has two arguments in reply.

First, it argues

that Flores Galarza overruled Pascoag as to Rhode Island's inverse
condemnation cause of action and set forth a higher standard for
state remedies that Rhode Island's inverse condemnation cause of
action does not meet.

Second, it argues that all the Pascoag court

held was that the plaintiff in that case had not proven the
inadequacy

or

unavailability

of

the

Rhode

Island

inverse

condemnation procedure, and that the state procedure suffers from
defects not considered in Pascoag that make it not a "reasonable,
certain

and

adequate

provision

for

obtaining

compensation."

Williamson County, 473 U.S. at 194 (quoting Reg'l Rail Reorg. Act
Cases, 419 U.S. at 124-25) (internal quotation marks omitted).

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Case: 10-1484 Document: 00116211732 Page: 20

Date Filed: 05/23/2011

Entry ID: 5552422

1. We Reject Downing's Arguments that We May Alter the
Williamson County Test Based on Flores Galarza
We turn first to Downing's arguments relating to Flores
Galarza.

Downing argues that Rhode Island's inverse condemnation

proceeding falls on the wrong side of the line drawn in Flores
Galarza between "a process that is particularly aimed," Flores
Galarza, 484 F.3d at 16, at compensating property owners to prevent
constitutional injury and a "general remedial cause of action" such
as a state takings claim that provides damages for a constitutional
injury, id. at 17.

Downing argues that because in Annicelli v.

Town of South Kingstown, 463 A.2d 133 (R.I. 1983), the case in
which

the

Rhode

Island

Supreme

Court

recognized

an

inverse

condemnation cause of action for regulatory takings, the state
court "did not develop any particularized procedure for obtaining
compensation for a taking," as Downing puts it, the cause of action
is insufficient under the rule in Flores Galarza.

Downing argues

that it would be bound to bring a state inverse condemnation claim
only if the Rhode Island Supreme Court or legislature had crafted
an inverse condemnation scheme as "particularly aimed," Flores
Galarza,

484

compensation

F.3d

at

schemes

16,

the

and

state

as
has

detailed

as

the

legislatively

statutory

created

for

wetland owners denied permission to alter their land, R.I. Gen.
Laws § 2-1-21(b), and property owners whose land the state takes
for public use through condemnation, see, e.g., R.I. Gen. Laws

-20-

Case: 10-1484 Document: 00116211732 Page: 21

§

42-64-9

(land

condemned

by

Date Filed: 05/23/2011

state

Economic

Entry ID: 5552422

Development

Corporation).
Downing's argument depends on the proposition that Flores
Galarza narrowed Williamson County generally by heightening the
standard for adequate state procedures.

If that proposition were

correct, Downing might have an argument.

But Flores Galarza could

not overrule prior circuit law.

See Pascoag, 337 F.3d at 93;

Deniz, 285 F.3d at 147; Gilbert v. City of Cambridge, 932 F.2d 51,
65 (1st Cir. 1991) (holding plaintiffs had not satisfied burden of
proving Massachusetts inverse condemnation proceeding could not
apply to the type of taking they alleged).10
majority

revise

a

test

created

by

the

Williamson County, 473 U.S. at 195-97.

Nor could the panel

Supreme

Court.

See

The en banc statement of

this court made that point, and we elaborate.
To

the

extent

that

language

in

the

Flores

Galarza

majority opinion can be read to say the plaintiffs do not bear the
burden

of

procedures

proving
for

the

seeking

inadequacy

or

compensation,

unavailability
that

language

of

state

cannot

squared with either Supreme Court or First Circuit precedent.

be
The

Flores Galarza majority expressly refused to "requir[e] plaintiffs

10

The plaintiffs in Gilbert petitioned for a writ of
certiorari, asking the Supreme Court to reconsider the Williamson
County state litigation rule. See Opposition to Petition for Writ
of Certiorari at i, Gilbert v. City of Cambridge, No. 91-209 (U.S.
Aug. 30, 1991), 1991 WL 11178604. The Supreme Court denied the
petition. Gilbert v. City of Cambridge, 502 U.S. 866 (1991).
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Case: 10-1484 Document: 00116211732 Page: 22

Date Filed: 05/23/2011

Entry ID: 5552422

to invoke any generally available state procedure that might
provide a remedy for an uncompensated taking." Flores Galarza, 484
F.3d at 17 (emphasis added).

But in Williamson County the Supreme

Court clearly placed the burden of proving the inadequacy of state
law remedies on the plaintiff.

Williamson County, 473 U.S. at 197

(finding that plaintiff "has not shown that the [state's] inverse
condemnation procedure is unavailable or inadequate . . . .").
In the First Circuit, "It is well settled that the burden
of

demonstrating

the

absolute

lack

proceeding is on the plaintiff."

of

[an

adequate]

state

Flores Galarza, 484 F.3d at 41

(statement accompanying denial of reh'g en banc) (citing Deniz, 285
F.3d at 146); see also Estate of Bennett v. Wainwright, 548 F.3d
155, 165 (1st Cir. 2008).

Even where "the most that can be said is

that it remains unclear whether the inverse condemnation remedy
applies" to the type of taking alleged by the plaintiff, the state
litigation requirement is not excused. Deniz, 285 F.3d at 147; see
also Gilbert, 932 F.2d at 65; Culebras Enters. Corp. v. Rivera
Rios, 813 F.2d 506, 514-15 (1st Cir. 1987).

To be excused, the

plaintiff must demonstrate that the state law "expressly precludes
use of the inverse condemnation remedy" in the plaintiff's case.
Deniz, 285 F.3d at 147.

We have relied on this allocation of the

burden of proof since Flores Galarza as well.
570 F.3d at 451.

-22-

See García-Rubiera,

Case: 10-1484 Document: 00116211732 Page: 23

Date Filed: 05/23/2011

Entry ID: 5552422

Our sister circuits agree that the burden is on the
plaintiff to prove the absolute unavailability or inadequacy of
potential state remedies in order to be excused from the state
litigation

requirement.

See,

e.g.,

Island

Park,

LLC

v.

CSX

Transp., 559 F.3d 96, 109 (2d Cir. 2009) (plaintiff must pursue
even unsure and undeveloped possibilities for relief); Rockstead v.
City

of

Crystal

Lake,

486

F.3d

963,

965-66

(7th

Cir.

2007)

(plaintiff must challenge out-of-date state common law precedent
denying validity of particular type of inverse condemnation claim);
Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 295
(5th Cir. 2006); Austin v. City & Cnty. of Honolulu, 840 F.2d 678,
680 (9th Cir. 1988).
Other language in Flores Galarza, if read a certain
way,

would

also

conflict

with

Supreme

Court

precedent.

The

majority held that a plaintiff is excused from the state litigation
requirement if the only remedy available under state law is a
general state takings claim.

Flores Galarza, 484 F.3d at 17-18.

But the Supreme Court in San Remo Hotel, decided two years before
Flores Galarza, abrogated a Second Circuit case holding "that
parties 'who litigate state-law takings claims in state court
involuntarily' pursuant to Williamson County cannot be precluded
from having those claims resolved 'by a federal court,'" San Remo
Hotel,

545

U.S.

at

342

(emphasis

added)

(quoting

Santini

v.

Connecticut Hazardous Waste Mgmt. Serv., 342 F.3d 118, 130 (2d Cir.

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Case: 10-1484 Document: 00116211732 Page: 24

Date Filed: 05/23/2011

Entry ID: 5552422

2003)). The Court thereby expressly recognized that to satisfy the
Williamson County state litigation requirement, plaintiffs must
bring state taking claims in state court where they are available.11
Indeed, other circuits to face the question have held
that plaintiffs must pursue claims under the takings clause of a
state constitution even when there is no judicial or legislative
inverse condemnation procedure already definitively established.
See,

e.g.,

Island

Park,

559

F.3d

at

110

(Second

Circuit);

Bickerstaff Clay Prods. Co., Inc. v. Harris Cnty., Ga., 89 F.3d
1481, 1491 (11th Cir. 1996) (plaintiff must bring suit under
eminent domain provision of Georgia Constitution to determine
whether state law compensates temporary takings); Bateman v. City
of West Bountiful, 89 F.3d 704, 708-09 (10th Cir. 1996); Austin,
840 F.2d at 681 (Ninth Circuit); cf. Peters v. Vill. of Clifton,
498 F.3d 727, 733-34 & n.6 (7th Cir. 2007) (finding Illinois courts
had developed adequate remedy, but adding that in other circuits
where the issue was raised, courts have found adequate the "selfexecuting [takings] provision of a state's constitution").

11

There is also reason to think that, despite its broad
language, Flores Galarza did not intend to alter the rule in
Pascoag.
The Flores Galarza majority repeatedly referred to
inverse condemnation proceedings, whether created by statute or
judicial recognition, as being appropriate state procedures under
Williamson County. See Flores Galarza, 484 F.3d at 16-18 & n.21.
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Case: 10-1484 Document: 00116211732 Page: 25

Date Filed: 05/23/2011

Entry ID: 5552422

2. Downing's Other Attacks on Pascoag Also Fail
Downing also argues that the holding in Pascoag, that
Rhode Island has made available an adequate state-law remedy that
plaintiffs must pursue before their federal takings claims will
ripen, has no binding force in its case, even if Pascoag is binding
precedent.
that

However, the main thrust of even these arguments is

Pascoag

insufficiently

considered

whether

Rhode

Island's

inverse condemnation proceedings met the adequacy standards set
forth in Flores Galarza, and so the arguments are disposed of under
our rejection of a reading of Flores Galarza as narrowing the state
litigation requirement.
Downing

also

attempts

to

distinguish

its

case

from

Pascoag on the facts, arguing that Pascoag is inapposite because it
involved a different type of alleged taking, arising from the
state's acquisition of the plaintiff's land by adverse possession
and prescriptive easement, rather than from the actions of state
regulatory agencies as in Downing's case.

The specific mechanism

of the alleged taking had no bearing on our consideration of the
Williamson County ripeness requirements in Pascoag.
337 F.3d at 90.
proving

Rhode

unavailable

or

See Pascoag,

Because Downing bears the absolute burden of
Island's

inverse

inadequate

in

condemnation
its

particular

proceeding
case,

it

is
is

insufficient to argue only that the alleged taking in its case is
different from the alleged taking in Pascoag.

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Case: 10-1484 Document: 00116211732 Page: 26

Date Filed: 05/23/2011

Entry ID: 5552422

Downing further argues that deficiencies in the remedies
available to it in state court render those remedies inadequate
under Williamson County.

Rhode Island, Downing argues, has no

statute comparable to federal statutes permitting recovery of
attorneys' fees or pre-judgment statutory interest on awarded
compensation. See 28 U.S.C. § 1961 (interest); 42 U.S.C. § 1988(a)
(fees); Andrade v. State, 448 A.2d 1293, 1295 (R.I. 1982) (holding
Rhode Island did not waive sovereign immunity as to pre-judgment
interest).

Exact equivalence of damages is not required; just

compensation is. Culebras, 813 F.2d at 514 (holding that potential
differences between Puerto Rico and federal remedies did not render
potential Puerto Rico inverse condemnation remedy inadequate, "[s]o
long as just compensation is provided").
Finally, Downing argues that because Rhode Island has not
statutorily waived sovereign immunity for inverse condemnation
claims as it has for statutory condemnation procedures, the remedy
is uncertain.

This allegation cannot satisfy Downing's burden to

show absolute unavailability in light of the Rhode Island Supreme
Court's

decisions

condemnation

repeatedly

cases.

See

reaching

Palazzolo,

the

merits

533

U.S.

at

in

inverse

611,

616

(reviewing, and partially reversing, Rhode Island Supreme Court's
decision that CRMC's denial of a plaintiff's development permit did
not constitute a regulatory taking); Woodland Manor III Assocs. v.
Keeney, 713 A.2d 806, 811-12, 814 (R.I. 1998) (remanding for trial

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Case: 10-1484 Document: 00116211732 Page: 27

Date Filed: 05/23/2011

Entry ID: 5552422

on plaintiff's claim of temporary regulatory taking); Annicelli,
463 A.2d at 141 (remanding for determination of property's fair
market value for purposes of compensation).
IV. Remaining Arguments
Because Downing must show it has fulfilled or is excused
from both prongs of the Williamson ripeness requirements, and we
have found that Downing has failed to make this showing as to the
state litigation requirement, we need not address the other prong,
the finality requirement.
As to Downing's other federal claims, Downing argues
strenuously in its reply brief that it has not waived its due
process claims, because it has argued that the entire district
court decision was erroneous.

Downing's opening brief makes

frequent passing reference to Downing's due process claims, but
provides no argument explaining why those claims should survive in
federal court even if its takings claims are found to be unripe,
the issue of primary relevance as to these claims at this stage in
the proceedings.
district court.

Nor did Downing make any such argument in the
The argument is doubly waived.

Cortes-Rivera v.

Dep't of Corr. & Rehab., 626 F.3d 21, 27 (1st Cir. 2010) ("We
decline to address the issue both because it was neither preserved
nor adequately presented in the district court and because it is
not adequately presented on appeal."); id. at 26 (holding that an
argument raised in a perfunctory manner is deemed waived).

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Case: 10-1484 Document: 00116211732 Page: 28

Date Filed: 05/23/2011

Entry ID: 5552422

We decline to address the issues raised for the first
time by amicus in its brief, which argues that Williamson County's
ripeness

rules

apply

only

to

Takings

Clause

claims,

leaving

plaintiffs free to pursue in federal court Due Process Clause and
Equal Protection Clause claims that arise from the same allegedly
illegal state conduct.

"[A]mici may not make up for waiver by a

party," Family Winemakers of Cal. v. Jenkins, 592 F.3d 1, 17 n.23
(1st Cir. 2010), and may not introduce a new argument into a case,
Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 74 n.5
(1st Cir. 1996).

We note only that we have previously held that

plaintiffs cannot, merely by recasting its takings claim "in the
raiment of a due process violation," evade the Williamson County
ripeness requirements.

Deniz, 285 F.3d at 149.

While the two agencies strenuously deny that they have
been unresponsive or have unreasonably delayed their decisions on
Downing's project, we express the hope that the parties will
promptly attempt to resolve any remaining disagreements.
Affirmed.

-28-