We don't usually cover unpublished decisions. They are usually cryptic, and depending on local court rules, can't be cited. But as we explained before, there are exceptions. The Ninth Circuit's memorandum decision in Molony v. Crook County, No. 09-35624 (May 27, 2011) is one that raises some interesting issues.
First, what's a takings claim doing in federal court? Like another recent opinion from the Seventh Circuit, the opinion notes it is a "state-law taking claim" meaning that the district court's jurisdiction was based either on diversity (in which case, the court could consider stand-alone state law claims), or on the presence of a federal question (in which case, the court has the discretion to consider "supplemental" state law claims -- what we used to call "pendent" or "ancillary" jurisdiction). We're not sure which applied here, but the jurisdictional basis is worth noting since it may reveal a path to a federal forum for those who consider state court forums property-owner unfriendly.
Second, the Ninth Circuit agreed that under Oregon ripeness law (somewhat similar to the Williamson County "final decision" requirement) further application would be futile: "Therefore, 'there was very little likelihood—or no likelihood—that the development would have been approved' had Plaintiffs appealed to the Crook County Court. Boise Cascade Corp. v. Bd. of
Forestry, 63 P.3d 598, 605 (Or. Ct. App. 2003)."
Third, the federal jury apparently concluded that the county took the plaintiff's property because there was no legal access to his land, and thus "any present economic plans for the property [are] impractical." The Ninth Circuit determined that "substantial evidence" supported the verdict.
Finally, the court concluded:
The district court did not err in denying the County’s motions for summary judgment and JMOL on Plaintiffs’ federal equal protection claim. Plaintiffs satisfied "prong-one" ripeness by obtaining a final decision from the Planning Commission. See W. Linn Corporate Park LLC v. City of W. Linn, 534 F.3d 1091, 1100 (9th Cir. 2008). Under "prong-two," Plaintiffs filed a state inverse condemnation action in state court. Id. On the merits, evidence was presented to the jury which demonstrated that the County treated similarly situated persons differently, had animus against Molony, and acted arbitrarily. A reasonable jury could have found an equal protection violation.
Slip op. 3-4.
Check out the short opinion. Reading it won't take long.
