Jon Bowers, et al v. Richard Whitman, et al
FILED OPINION (DAVID M. EBEL, MARSHA S. BERZON and N. RANDY SMITH) AFFIRMED. Judge: NRS Authoring. FILED AND ENTERED JUDGMENT.  [10-35966, 10-36029]
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON BOWERS; LYNNA BOWERS; A. L.
BRUNER; MARILYN BRUNER; ROBERT
FERNS; MILTON GORDEN; KATHLEEN
GORDEN; MORTON GOSSETT;
CHARLES N. HILKEY, Jr.; LINDA
JONES; JAMES LAVIA; MARCIA
LAVIA; DONALD LITCHFIELD;
MELISSA LITCHFIELD; JERRY
MCCAULEY; KATHLEEN MCCAULEY;
IRMA PAYNE; HAROLD PAYNE;
WALTER PHILLIPS; LYLE WOODCOCK,
RICHARD WHITMAN; STATE OF
OREGON DEPARTMENT OF LAND
CONSERVATION AND DEVELOPMENT,
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BOWERS v. WHITMAN
CITIZENS FOR CONSTITUTIONAL
FAIRNESS, an Oregon nonprofit
corporation; PACIFIC WESTERN OF
MEDFORD, L.L.C.; DUANE CROSS;
BUD KAUFMAN; GARY WIRTH;
DOUGLAS STURGEON; CARL
OFFENBACHER; DOROTHY LIPPKE;
GARY LEWELLYN; ORVILLE EARY;
JOSEPH DAUENHAUER; MYRON
CORCORAN; ESTHER A. CORCORAN;
JAMES COCHRAN; ACE CARTER;
GORDON S. ANDERSON; DON
ROWLETTE; AL GRAY; KEN BIGHAM;
ARNOLD CROSS; MARALOU CROSS;
MARIONANN KAUFMAN; CROSS &
JACKSON COUNTY, a political
Subdivision of the State of
Oregon; DANNY JORDAN,
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
October 12, 2011—Portland, Oregon
Filed January 12, 2012
BOWERS v. WHITMAN
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Before: David M. Ebel,* Marsha S. Berzon, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
*The Honorable David M. Ebel, Senior Circuit Judge for the Tenth Circuit, sitting by designation.
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BOWERS v. WHITMAN
Jack Herbert Swift, Grants Pass, Oregon, for the Bowers
Jack Herbert Swift, Grants Pass, Oregon (briefed and argued);
William L. Bernard, Pueblo, Colorado (argued), for the Citizens plaintiffs-appellants.
G. Kevin Kiely, Cable Huston Benedict Haagensen & Lloyd
LLP, Portland, Oregon (briefed); George F. Hammond, Medford, Oregon (briefed and argued), for the Richard Whitman,
et al. defendants-appellees.
Stephanie L. Striffler, Oregon DOJ, Salem, Oregon, for the
Jackson County defendant-appellee and the state of Oregon
N.R. SMITH, Circuit Judge:
In this consolidated appeal, we determine whether the State
of Oregon and Jackson County (collectively Oregon) committed a constitutional taking, violated Plaintiffs’ due process
rights, or violated Plaintiffs’ equal protection rights when
Oregon voters enacted Measure 49 to replace and modify
remedies available under the previous Measure 37. We con-
BOWERS v. WHITMAN
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clude that Oregon did not commit a constitutional taking
when it modified the remedies available under Measure 37,
because any potential property interest that Plaintiffs had for
compensation or a specific type of land use under Measure 37
had not vested. Measure 49 also does not contravene substantive due process, because it does not implicate fundamental
rights. For this reason, and also because the regulatory classification under Measure 49 is not based on a suspect class,
Measure 49 also survives rational basis scrutiny and has not
violated Plaintiffs’ equal protection rights. Therefore, we
AFFIRM the district court.
In 2004, Oregon voters passed Measure 37, originally codified at Or. Rev. Stat. § 197.352 (2005), through the initiative
process. Measure 37 required “state and local governments to
compensate private property owners for the reduction in the
fair market value of their real property that results from any
land use regulations of those governmental entities that
restrict the use of the subject properties.” MacPherson v.
Dep’t of Admin. Servs., 130 P.3d 308, 312 (Or. 2006). Thus,
for those who qualified, Section One of Measure 37 authorized a public entity to award “just compensation” to landowners if that entity enforced land use regulations that
reduced the fair market value of the landowners’ property,
even if such reduction did not constitute a “taking.”
Section Six provided the claimant with a statutory cause of
action in state court for the recovery of that compensation, if
the subject land use regulation continued in force for 180 days
after claim was made. § 197.352(6). Sections Eight and Ten
of the Act provided to the claimed-upon-government entity an
ability to avoid payment of monetary compensation by granting that entity the authority to modify, remove, or not apply
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BOWERS v. WHITMAN
the subject land use regulation. § 197.352(4). If a public entity
chose this option within 180 days of a property owner submitting a demand, no entitlement to monetary compensation
arose under the statute. The second option, to exempt property
from otherwise applicable regulations and allow a specified
use, colloquially became known as a “Measure 37 waiver.”
Damman v. Bd. of Comm’rs of Yamhill Cnty., 250 P.3d 933,
935 (Or. App. 2011).1 These Measure 37 waivers “allow[ed]
the owner to use the property for a use permitted at the time
the owner acquired the property.” § 197.352(8).
Thousands of such claims were filed statewide, with Jackson County alone validating approximately 571 such claims.
Most property owners in Oregon, who pursued a remedy
under Measure 37, received Measure 37 waivers from their
local governments, not monetary compensation. A Measure
37 waiver provided that the regulations at issue in the property owners’ claims would not be applied to their property.
During the 2007 legislative session, the state legislature
referred Measure 49 to the voters. This measure also passed
and has been codified as the current Or. Rev. Stat. §§ 195.300
to 195.336 (2007). The Oregon Supreme Court examined the
text and context of Measure 49 and found that it “conveys a
clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.” Corey v. Dep’t
of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or.
2008). The court went on to observe that “Measure 49 exten1
We will continue to refer to this option for the government as a “waiver,” because that is how the state of Oregon characterizes it. Although the
text of Measure 37 does not refer to waivers, Measure 49 defines “waiver”
as “an action or decision of a public entity to modify, remove or not apply
one or more land use regulations . . . to allow the owner to use property
for a use permitted when the owner acquired the property.” Or. Rev. Stat.
§ 195.300(24) (2007). We note that the term “waiver” typically has legal
significance not applicable here.
BOWERS v. WHITMAN
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sively amends [Measure 37] in a way that wholly supersedes
the provisions of Measure 37 pertaining to monetary compensation for and waivers from the burdens of certain land use
regulations under that earlier measure.” Id.
Of greatest importance to this case, Measure 49 undertook
to change the remedies available to property owners who had
already begun the process of pursuing relief under Measure
37. Measure 49 replaced the process, the approval standards,
and the extent of the relief (if any). Measure 49 also removed
some of the benefits previously available, including monetary
relief and waivers allowing commercial or industrial development. §§ 195.305, 195.310. Measure 49, however, exempted
a property owner from pursuing compensation pursuant to the
new provisions in Measure 49 if the property owner had “a
common law vested right . . . to complete and continue the
use described in the waiver.” Compiled as a note after
§ 195.305. Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested
rights determination generally either applied for a local decision or sued for a declaratory judgment.
According to Oregon, whether a landowner has a vested
right to complete development of property (even though the
law has changed) turns on whether the landowner’s “commencement of the construction . . . [has] been substantial, or
substantial costs toward completion of the job . . . have been
incurred.” Clackamas Cnty. v. Holmes, 508 P.2d 190, 192
(Or. 1973)). In Holmes, the Oregon Supreme Court held that
whether a landowner’s right vests turns on the facts of each
case, and the court set forth a list of factors for analyzing
those facts. Id.
All of the Citizens for Constitutional Fairness et al. Plaintiffs and the Bowers et al. Plaintiffs (collectively Plaintiffs)2
Plaintiffs will be referred to separately as Citizens Plaintiffs and Bowers Plaintiffs only when necessary.
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BOWERS v. WHITMAN
are owners of real property in the State of Oregon, who submitted written demands for compensation under Measure 37
and received timely waivers. None of these individual plaintiffs have recovered any monetary compensation, and,
because of Measure 49, none have been able to proceed with
any development of their land under the waivers granted.
Citizens Plaintiffs initially brought this action against Jackson County in relation to Measure 49, which amended prior
Ballot Measure 37 and replaced the relief previously available
to Citizens under that statute. Citizens Plaintiffs’ complaint
raised several causes of action, two of which are relevant to
this appeal. In their fifth cause of action, Citizens Plaintiffs
asserted that waivers granted to them by the County under
Measure 37 constituted binding contracts, protected by the
Contracts Clause of the United States Constitution. Citizens
Plaintiffs’ sixth cause of action asserted that, pursuant to Measure 37, they had gained an accrued cause of action for monetary compensation, which was a property interest protected by
the Fifth and Fourteenth Amendments to the United States
On summary judgment, the district court held that the Measure 37 waivers were contracts that could not be impaired pursuant to the Contracts Clause and, in the alternative, they were
judgments that could not be impaired under the doctrine of the
separation of powers. The County appealed, and we reversed,
ruling that Measure 37 waivers are neither contracts nor court
judgments implicating separation of powers issues. Citizens
for Constitutional Fairness v. Jackson Cnty., 388 F. App’x
710, 711 (9th Cir. 2010). The district court then concluded
that our decision disposed of the remainder of the Citizens
Plaintiffs’ claims and dismissed the case. The Citizens appeal
BOWERS v. WHITMAN
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Before any decision was rendered on the first Citizens
appeal, different claimants brought another suit in the district
court in the Bowers case. The Bowers Plaintiffs are all Measure 37 claimants. They sued the Department of Conservation
and Development Commission and Director Whitman, seeking damages and declaratory relief against enforcement of
Measure 49. Bowers Plaintiffs alleged five causes of action,
the first three of which remain at issue in this appeal.
First, Bowers Plaintiffs alleged that there had been a “taking” of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those
property interests were “statutory rights to monetary compensation,” “vested and accrued claim[s] for compensation,”
“legal entitlements . . . in lieu” of monetary compensation, or
“Measure 37 waivers and the entitlement to monetary compensation.” Second, Bowers Plaintiffs alleged that Measure
49 violates equal protection guarantees under the Fourteenth
Amendment. Third, Bowers Plaintiffs alleged that Measure 49
violates substantive due process under the 14th Amendment.
After Bowers was filed, this court issued its opinion in the
first Citizens appeal, holding that the Measure 37 waivers
were not court judgments or contracts. Relying on our decision, the district court granted the motion for summary judgment in the Bowers case and dismissed the remaining claims
against Whitman in an order and judgment. The Bowers
In these cases, the Plaintiffs do not identify any disputed
facts below in their briefs. Accordingly, these cases appeal
only the district court’s conclusions of law, which we review
de novo. DirecTV, Inc. v. Webb, 545 F.3d 837, 842 (9th Cir.
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BOWERS v. WHITMAN
A. The enactment of Measure 49 did not effect a constitutional taking of Plaintiffs’ potential property interests
created under Measure 37.
 “We use a two-step analysis to determine whether a
[constitutional] ‘taking’ has occurred: first, we determine
whether the subject matter is ‘property’ within the meaning of
the Fifth Amendment and, second, we establish whether there
has been a taking of that property, for which compensation is
due.” Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1002 (9th
Cir. 2007), aff’d, 553 U.S. 591 (2008).
“Property interests . . . are not created by the Constitution.
Rather they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as state law-rules or understandings that
secure certain benefits and that support claims of entitlement
to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577
In some cases, the Supreme Court has recognized property
rights that were constitutionally protected, such that they were
safeguarded by due process, but still not vested, and thus the
government could take away these interests so long as it provided proper procedures. See, e.g., Perry v. Sindermann, 408
U.S. 593 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970). But
in other cases, constitutionally protected property rights were
held to have vested and thus became cognizable under the
Takings Clause, such that the government could not remove
the right without providing just compensation. See United
States v. Sioux Nation, 448 U.S. 371, 414-15, 424 (1980)
(holding that the government could not enact legislation to
take back land it had expressly given to the Sioux Nation
without committing a constitutional taking); Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164-65 (1980)
(holding that the state’s confiscation of the interest accrued on
interpleader funds was a constitutional taking); Lynch v.
United States, 292 U.S. 571, 576 (1934) (holding that the gov-
BOWERS v. WHITMAN
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ernment could not avoid payment of its commitment to pay
disability and life insurance by enacting a statute repealing the
laws granting the benefit without committing a constitutional
taking); see also Black’s Law Dictionary 1324 (7th ed. 1999)
(defining a vested right as “[a] right that so completely and
definitely belongs to a person that it cannot be impaired or
taken away without the person’s consent”).
 In the present case, we assume without deciding that
the procedure provided through the ballot initiative was sufficient to satisfy any procedural due process requirements,
because this issue is not contested by the Plaintiffs.3 Thus, the
critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modify
the right without committing a constitutional taking. After
review, we conclude that such property interests have not
 To determine whether a property interest has vested for
Takings Clause purposes, “the relevant inquiry is the certainty
of one’s expectation in the property interest at issue.” Engquist, 478 F.3d at 1002. We noted in Engquist that, if the
property interest is “contingent and uncertain” or the receipt
of the interest is “speculative” or “discretionary,” then the
government’s modification or removal of the interest will not
constitute a constitutional taking. Id. at 1003-04. For multiple
reasons, Plaintiffs have not sufficiently demonstrated certain
expectations in their Measure 37 property interests to trigger
Takings Clause protection.
Though Bowers Plaintiffs appear to assert a procedural due process
claim on appeal, they renounced any procedural due process claim in their
opposition to Whitman’s motion to dismiss. Even if Plaintiffs had not
abandoned this claim, the process provided in this case was sufficient
because “[w]hen a state alters a state-conferred property right through a
legislative process, the legislative determination provides all the process
that is due.” Rea v. Matteucci, 121 F.3d 483, 485 (9th Cir. 1997) (internal
quotation marks omitted).
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BOWERS v. WHITMAN
 At the outset, we emphasize that Plaintiffs failed to
articulate any clear characterization of the exact property
interest to which they are entitled. Their descriptions range
from an accrued cause of action to a right to monetary compensation derived from a statutory entitlement to the right to
use their land consistent with Oregon’s decision to not regulate their property under Measure 37. When pressed at oral
argument on whether a ruling in the Plaintiffs’ favor would
have entitled them to money or to land use rights, the Plaintiffs were unable to provide a clear answer and argued essentially for both. The Plaintiffs’ inability to characterize their
requested relief reflects the uncertainty of the property interests upon which they rely. Neither have Plaintiffs’ claims
vested under any of the various characterizations of the Measure 37 waiver that the Plaintiffs set forth.
Accrued Cause of Action
 Plaintiffs, at some junctures, have maintained that their
Measure 37 property interest is an accrued cause of action that
has been unconstitutionally taken from them by Measure 49.
“We have squarely held that although a cause of action is a
species of property, a party’s property right in any cause of
action does not vest until a final unreviewable judgment is
obtained.” Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009)
(quoting Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th Cir.
2001) (internal quotation marks omitted); see also Fields v.
Legacy Health Sys., 413 F.3d 943, 956 (9th Cir. 2005)
(“Causes of action are a species of property protected by the
Fourteenth Amendment’s Due Process Clause. However, a
party’s property right in any cause of action does not vest
until a final unreviewable judgment is obtained.”) (citation,
internal quotation marks, and emphasis omitted). The reason
an accrued cause of action is not a vested property interest for
Takings Clause purposes until it results in a “final unreviewable judgment,” is that it is inchoate and does not provide a
certain expectation in that property interest. Id. (citing Austin
v. City of Bisbee, 855 F.2d 1429, 1435 (9th Cir. 1988)
BOWERS v. WHITMAN
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(explaining that, although a cause of action is a species of
property, “it is inchoate and affords no definite or enforceable
property right until reduced to final judgment” (internal quotation marks omitted)).
 As we held in the previous interlocutory appeal in the
Citizens case, the waivers provided under Measure 37 “were
administrative decisions, not court judgments.” Citizens for
Constitutional Fairness v. Jackson Cnty., 388 F. App’x. at
711. The question, then, is whether those decisions imparted
a certainty that property owners were entitled to a particular
use of their property, to compensation, or to some other property interest cognizable under the Takings Clause. Cf. Engquist, 478 F.3d at 1003. We conclude that they did not.
 The waivers stated that particular land use regulations
would not be applied, but this statement did not entitle waiver
recipients to develop their property in any particular way. Any
development required approval from the requisite governmental bodies as well as, in many, if not all, cases, a waiver from
the state of Oregon. Indeed, all of the waivers in the record
state that “Jackson County does not promise Claimant(s) that
Claimant(s) will eventually be able to put the property to any
 Further, the waivers were not self-enforcing. They did
not, for example, specify a particular amount of compensation
to be paid if a municipality continued to apply a waived land
use regulation. Instead, in such a circumstance, a property
owner’s only recourse was “a cause of action” in Oregon state
court. Thus, Plaintiffs here had, at most, a cause of action, not
a final judgment. Their right to sue was therefore not a property interest protected by the Takings Clause.
The Plaintiffs noted in oral argument that the text of Measure 37 waivers varied from county to county. However, no other waivers appear in the
record, and at oral argument the Plaintiffs suggested that Jackson County’s
waivers were representative of the other waivers.
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BOWERS v. WHITMAN
Plaintiffs have also characterized their property right as a
vested statutory entitlement to compensation, or the equivalent of compensation. We have recognized that “[t]here is no
question that claims for compensation are property interests
that cannot be taken for public use without compensation.” In
re Aircrash in Bali, Indon., 684 F.2d 1301, 1312 (9th Cir.
1982). But in that case, we held that whether the claim had
vested, such that the government’s interference with the claim
constituted a taking, “turn[ed] on questions of degree.” Id.
This echoes the rule in Engquist, that vesting is determined
based on “certainty of expectations.” 478 F.3d at 1003.
 The Supreme Court has required a high threshold of
certainty before finding that an entitlement had vested. For
instance, the Court has recognized this certainty where the
plaintiffs had paid consideration for their entitlement, Lynch,
292 U.S. 571, or where the government made an explicit
promise that the property interest would not be taken away,
Sioux Nation, 448 U.S. 371. However, the Supreme Court has
not recognized a vested right in the area of social security
benefits or retirement benefits benevolently given. See U.S.
R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 174 (1980) (upholding
the government’s ability to alter benefits under a railroad
retirement plan); Hisquierdo v. Hisquierdo, 439 U.S. 572,
575-576 (1979) (finding that “Congress may alter, and even
eliminate” railroad retirement and Social Security benefits “at
any time”); see also Flemming v. Nestor, 363 U.S. 603, 608611 (1960) (upholding Congress’s ability to alter Social
 Plaintiffs’ claim of entitlement does not contain the
necessary certainty of expectation for multiple reasons. First,
in the present case, Measure 37 waivers clearly did not constitute an express and unequivocal promise by Oregon to provide compensation, because Oregon had the option of
providing either compensation or removing certain land use
BOWERS v. WHITMAN
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regulations. Thus, no monetary commitment was unequivocally made. Furthermore, as noted, the waivers themselves
explicitly disclaimed a claimant’s right to any particular land
use. Thus, Oregon’s option of waiving the application of specific land use regulations was also not an unequivocal grant
of an unfettered right. Finally, as we held in the previous
interlocutory appeal, Measure 37 waivers were not contracts,
nor were they evidence of a contract between the property
owners and the county. See Citizens for Constitutional Fairness v. Jackson Cnty., 388 F. App’x. at 711 (“[T]he waivers
do not show that there was any offer by Jackson County,
acceptance by the property owners or consideration.”).
 Plaintiffs’ claims for compensation under statutory
entitlement are more akin to social security benefits: something that the government voluntarily and benevolently provides, but that the government can stop providing at any time
(assuming the government has complied with the requisite
procedural due process). See, e.g., Hisquierdo, 439 U.S. at
575-576. Thus, Plaintiffs cannot claim to have certain expectations in compensation under their Measure 37 waivers as a
Right to a Particular Land Use
 To the extent that the property interest provided under
Measure 37 was merely a right to particular land uses, it is
analogous to a zoning permit. It is well established that there
is “no federal Constitutional right to be free from changes in
the land use laws.” Lakeview Dev. Corp. v. City of S. Lake
Tahoe, 915 F.2d 1290, 1295 (9th Cir. 1990). Therefore, an
interest in a particular land use does not constitute a protected
property interest, unless the interest has vested in equity based
on principles of detrimental reliance.
Plaintiffs’ claims to a land use property right under Measure 37 fail for two reasons. First, these claims are not ripe.
See Williamson Cnty. Reg’l Planning Comm’n v. Hamilton
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BOWERS v. WHITMAN
Bank, 473 U.S. 172 (1985). In Williamson, a land developer
had received the Planning Commission’s approval to develop
a tract of land into a residential area consistent with the county’s zoning regulations. Id. at 177. However, the regulation
changed a few years later and the Commission refused to
approve further development inconsistent with the new regulations. Id. at 179-80. The developer brought an action against
the Commission, alleging that a taking had occurred. Id. at
182. The Supreme Court held that the developer’s claim for
a taking was not ripe, because he had not “obtained a final
decision regarding the application of the zoning ordinance and
subdivision regulations to its property, nor had he utilized the
procedures Tennessee provides for obtaining just compensation.” Id. at 186.
 Similarly in the present case, the Plaintiffs have not
exhausted the available alternative remedies under Measure
49 to determine which land use options are currently available
to them. Measure 49 claims to preserve any Measure 37 land
use claims if the property owner has “a common law vested
right . . . to complete and continue the use described in the
waiver.” Compiled as a note after § 195.305. Plaintiffs also
have not sought to determine whether their right to develop
their land pursuant to their Measure 37 waivers have vested
in equity pursuant to Oregon’s Holmes factors. Holmes, 265
Or at 196-97.5 Thus, under a land use characterization of
Plaintiffs’ Measure 37 interest, these claims are not ripe,
because Plaintiffs still have potential remedies available under
Oregon state law.
 Second, even if Plaintiffs’ claims were ripe, Plaintiffs
have not alleged that they detrimentally relied on their Measure 37 land-use waivers. As a result, it is unlikely that Plaintiffs’ claims have vested under this theory.
Under Holmes, Plaintiffs’ Measure 37 property interest in a certain
type of land use can vest if the particular Plaintiff has commenced construction that is substantial or has spent substantial costs toward completing the job. Holmes, 265 Or at 196-97.
BOWERS v. WHITMAN
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B. The enactment of Measure 49 did not violate
substantive due process.
Plaintiffs argue that Measure 49 infringes on fundamental
rights, thus triggering heightened scrutiny under our substantive due process jurisprudence. Oregon answers that there is
no authority for the proposition that economic rights are fundamental; therefore this claim ought to be subjected to rational basis scrutiny. See Washington v. Glucksberg, 521 U.S.
702, 767 n.9 (1997) (Souter, J., concurring in the judgment)
(requiring as a threshold requirement for heightened scrutiny
“that the interest (or, as the Court puts it, the right) be fundamental before anything more than rational basis justification
is required”). We agree with Oregon.
 Retroactive legislation does not violate substantive
due process, “[p]rovided that the retroactive application of a
statute is supported by a legitimate legislative purpose furthered by rational means . . . .” Pension Benefit Guar. Corp.
v. R. A. Gray & Co., 467 U.S. 717, 729 (1984); see also Dodd
v. Hood River Cnty., 59 F.3d 852, 864 (9th Cir. 1995) (“There
is no denial of substantive due process if the question as to
whether the government acted arbitrarily or capriciously is ‘at
least debatable.’ ” (citation omitted)).
 Measure 49’s purpose is to “modify . . . Measure 37
(2004) to ensure that Oregon law provides just compensation
for unfair burdens while retaining Oregon’s protections for
farm and forest uses and the state’s water resources.” Or. Rev.
Stat. § 195.301(2). Based on the high number of claims that
had been filed during the three years Measure 37 was in
effect, it was rational for the legislature and voters to determine that the cost of Measure 37 was too great, either to the
taxpayer or in terms of natural resources. Furthermore, Measure 49 still seeks to provide alternative remedies to Measure
37 claimants. Thus, Measure 49 is based on a rational government interest and does not violate substantive due process.
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BOWERS v. WHITMAN
C. The enactment of Measure 49 did not create
unconstitutional disparate treatment.
Bowers Plaintiffs6 argue that Measure 49 imposes unequal
results that lack any rational relationship to its purpose, and
it therefore violates the Equal Protection Clause under the
Fourteenth Amendment. Because the regulatory classification
under Measure 49 is not based on a suspect class, and because
Measure 49 does not implicate fundamental rights (as discussed above), this classification must be evaluated under the
“rational basis” standard. See Nordlinger v. Hahn, 505 U.S.
1, 10 (1992). After review, we conclude that the classification
Under rational basis review, the Equal Protection Clause is
satisfied if: (1) “there is a plausible policy reason for the classification,” (2) “the legislative facts on which the classification is apparently based rationally may have been considered
to be true by the governmental decisionmaker,” and (3) “the
relationship of the classification to its goal is not so attenuated
as to render the distinction arbitrary or irrational.” Id. at 11.
 Measure 49 seeks to balance the protection of property owners’ interests with the preservation of Oregon’s natural resources. These both constitute legitimate state interests.
Measure 49 changes the calculus of the balance that was previously utilized under Measure 37, but this change was not
irrational, “[g]iven the number of Measure 37 claims that
were being processed, and the potential costs of those pending
claims.” Powell v. Or. Dep’t Land Cons. & Dev., 243 P.3d
798, 804 (Or. App. 2010). Essentially, “the legislature and the
The Citizens Plaintiffs raised this argument for the first time on appeal.
Generally, we will not consider an issue raised for the first time on appeal.
Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). Although there are
exceptions to this rule, see id., this case does not fall within any of the
exceptions. Therefore, this disparate treatment analysis is only applicable
to the Bowers Plaintiffs, because the Citizens Plaintiffs cannot now raise
BOWERS v. WHITMAN
Page: 19 of 20
voters decided that it was in the best interest of the state to
replace the remedies in all Measure 37 cases, pending and
future. Simply put, the retroactive application of Measure 49
was a rational response to the legitimate governmental concerns posed by Measure 37.” Id.
Plaintiffs argue that Measure 49 was irrational, because it
applied blanket standards for relief to landowners with diverse
situations, resulting in uneven distribution of the burden of
Measure 49. Plaintiffs also argue that Measure 49 is irrational,
because some claimants under Measure 37 actually did
receive an unaltered Measure 37 remedy in the form of monetary compensation whereas most claimants did not. See, e.g.,
English v. Multnomah Cnty., 238 P.3d 980 (Or. 2010)
(upholding a final judgment of monetary compensation for a
landowner under Measure 37).
However, the Supreme Court has also said, “[i]n the area
of economic and social welfare, a State does not violate the
Equal Protection Clause merely because the classifications
made by the law are imperfect.” Dandridge v. Williams, 397
U.S. 471, 485 (1970). As long as the classification has some
rational basis, it will “not offend the Constitution simply
because the classification is not made with mathematical
nicety or because in practice it results in some inequality.”
Fritz, 449 U.S. at 175 (internal quotation marks omitted).
 In this case, it was not irrational for Oregon to attempt
to provide partial remedies under Measure 49, even if these
remedies did result in some differences of treatment. The legislature had discretion to determine how best to balance the
competing needs of providing some remedies for claimants
while still protecting Oregon’s resources. Furthermore, there
was a rational reason that some claimants received a remedy
while others did not. The claims that led to a remedy became
final before Measure 49 was passed, and so the Oregon
Supreme Court held that such a claim was “extinguished”
once it was “reduced to a final judgment.” English, 238 P.3d
Page: 20 of 20
BOWERS v. WHITMAN
at 988. Therefore, because Measure 49 applies to all Measure
37 claims that existed at the time of its enactment and is rationally related to legitimate state interests, Plaintiffs’ equal protection claim fails.
For the foregoing reasons, the judgment of the district court
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