"Property Rights" Bills Take a Process Approach:
H.R. 992 and H.R. 1534

97-877 A

Contents for this section

H.R. 992 and Senate-reported H.R. 1534:expanding court jurisdiction

Issues raised by bills

5. Effect on 'preclusive review' provisions in existing regulatory statutes

House-passed H.R. 1534 and Senate-reported H.R. 1534: lowering abstention and ripeness hurdles

The existing law of abstention and ripeness
Asserted need for bills

5. Effect on 'preclusive review' provisions in existing regulatory statutes.

Congress may wish to clarify the extent to which the bills, particularly Senate-reported H.R. 1534, override the 'preclusive review' provisions contained in many federal regulatory statutes. These provisions were designed to, among other things, put an early end to legal disputes over new agency rulemakings, allowing both agency and regulated community to commit the necessary resources with confidence that the rule has some permanence. An example of a preclusive review provision is found in the Clean Air Act, which limits judicial review of nationally applicable regulations under the act to the U.S. Court of Appeals for the District of Columbia, requires that petitions for judicial review be filed within 60 days of Federal Register notice, and provides that after such 60 days a regulation may not be challenged in an enforcement action. (See Endnote 29.)

The issue whether preclusive review provisions are overridden arises more clearly under Senate-reported H.R. 1534, since that bill's provisions apply "[n]otwithstanding any other provision of law." (See Endnote 30.) Such override, if found, would make several changes. Where a preclusive review provision would have channelled all petitions for review to a single court (example above), the bill increases the chance of multiple, inconsistent rulings from the district courts as to an agency action. Also, agency actions for which original review jurisdiction now lies in the circuit courts would be heard initially by district courts, enhancing the likelihood that more time will be used in appeals. Finally, the six-year limitations period in Senate-reported H.R. 1534 arguably allows challenges to be filed long after the deadlines in existing preclusive review provisions, which range between 45 and 120 days after the agency rulemaking.

By contrast, H.R. 992 lacks the "[n]otwithstanding any other provision of law" phrase. Moreover, it stipulates that its grant of jurisdiction to the CFC and district courts "does not extend to matters over which other Federal law has granted exclusive jurisdiction to one or more United States courts of appeals." (See Endnote 31.) This provision shrinks the issue of a possible override to those preclusive review provisions conferring jurisdiction on federal district courts. (See Endnote 32.)

Note that invalidation challenges under the bills could take the form of either petitions for review of agency rulemaking, or counterclaims in a federal enforcement action.

6. Other issues.

Effect of court's finding no taking. H.R. 992 conditions the expansion of CFC and district court jurisdiction on plaintiff's allegation that the agency action at issue is a taking. (The district courts have jurisdiction over such claims independent of H.R. 992.) In the large majority of cases, it is likely that the taking claim will be rejected by the CFC -- this is the historical pattern in takings cases, one which H.R. 992 is likely to heighten by encouraging the filing of marginal takings claims to establish the expanded jurisdiction over the non-taking claim. If the taking claim is rebuffed, does the court retain jurisdiction over the non- taking claim? It would seem likely, though Congress may wish to clarify the matter.

Scope of CFC's new equitable powers. H.R. 992 grants the CFC power to grant equitable and declaratory relief only in connection with actions brought under H.R. 992. In contrast, Senate-reported H.R. 1534 grants the CFC such powers "in any case within its jurisdiction." Both bills would allow invocation of equitable powers on a 'when appropriate' standard, a phrase one assumes refers to traditional principles of equity and does not allow the court to invalidate federal action solely because it is adjudged a taking. (See Endnote 33.) Also raising this issue is a provision in Senate-reported H.R. 1534 declaring that "[a]n owner may file a civil action under this section to challenge the validity of any Federal agency action as a violation of the fifth amendment ...." (See Endnote 34.)

House-passed H.R. 1534 and Senate-reported H.R. 1534: lowering abstention and ripeness hurdles

A "process" approach quite different from the Tucker Act- related provisions above is taken by the House-passed version of H.R. 1534 and almost identical provisions in the Senate- reported version of H.R. 1534. These bills would lower certain threshold barriers to assertion of federal takings claims in federal courts, so that more such cases are resolved on the merits, rather than dismissed on preliminary grounds. This threshold-lowering approach is entirely independent of the earlier-discussed jurisdictional approach. Indeed, the two approaches largely affect different entities: the Tucker Act shuffle approach aims exclusively at suits against the federal government; the threshold-lowering approach, mostly suits against local government.

The two threshold barriers targetted by the bills are 'abstention' and 'ripeness,' concepts that have been developed by federal judges to avoid adjudication of certain matters deemed not properly before federal courts. A basic understanding of these sentries at the courthouse door is required at the outset.

The existing law of abstention and ripeness

Abstention (See Endnote 35.)

Abstention is a discretionary doctrine under which federal judges may decline to decide cases that are otherwise properly before the federal courts. Grounded in principles of comity and cooperative federalism, abstention is based on the notion that federal courts should not intrude on sensitive state political and judicial controversies unless necessary. Rather, say proponents of abstention, those controversies should be settled in the state courts. Thus, abstention is an exception to the otherwise 'virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.' (See Endnote 36.)

Several varieties of abstention exist, named after the Supreme Court decisions in which they were announced. The two varieties most relevant to H.R. 1534 are Pullman abstention and Burford abstention. (See Endnote 37.) Pullman abstention, (See Endnote 38.) in its classic use, arises in federal-court challenges to state action in which resolution of an unsettled state law issue could eliminate the need to decide, or could narrow, a difficult federal question. (See Endnote 39.) It has been held applicable to section 1983 actions, (See Endnote 40.) a frequently used basis for challenging local action in federal court. (See Endnote 41.) Typically, the federal court sends the litigants to state court for a determination of the state law question, or, in the speedier, more modern approach, simply "certifies" the state-law question to the high court of the state for its views on the matter. (See Endnote 42.) Meanwhile, the federal court retains jurisdiction over the case, to resolve the federal question if a decision ultimately proves necessary.

Burford abstention (See Endnote 43.) counsels against federal adjudication in cases touching on a complex state regulatory scheme concerning important matters of state policy more properly addressed by state courts. (See Endnote 44.) By contrast with Pullman abstention, the typical remedy is to dismiss the action. Recently, however, the Supreme Court held in Quackenbush v. Allstate Ins. Co. that abstention does not support outright dismissal or remand in actions seeking monetary damages, as opposed to equitable or other discretionary relief. (See Endnote 45.) Owing to the more common use of dismissal in Burford abstention, Quackenbush would seem to affect chiefly those cases. Important here, its holding seems to limit the federal court addressing a takings- based section 1983 action to staying, rather than dismissing, the claim. This raises the question whether Quackenbush will cause federal judges to lose interest in the use of abstention in takings cases.

At least until Quackenbush, federal courts had been abstaining in regulatory takings cases with greater frequency than a decade ago -- the apparent result of two Supreme Court developments. The first is the Court's 1987 ruling that when a regulatory taking is found, the Fifth Amendment requires a remedy of monetary compensation, not merely invalidation of the land use restriction. (See Endnote 46.) Formerly, some state courts had permitted only invalidation. Thus, the ruling deprived property owners of the argument that the remedies available in state court were inferior to those in federal court. Second, in 1985 the Supreme Court announced two stringent ripeness rules for Fifth Amendment 'takings' claims advanced in federal court -- discussed immediately below. These rules have further encouraged increasingly overburdened federal judges to apply abstention principles to deflect many takings cases (involving state and local agency defendants) to the state courts.

Abstention is only relevant where a federal court has before it a suit challenging state or local action. If the venue is a state court, or the defendant is the United States, abstention doctrine has no application.

Ripeness

Ripeness is another threshold hurdle in litigation. If a claim is not ripe, the court lacks subject matter jurisdiction and may not decide the merits of the case. Ripeness seeks to ensure that issues adjudicated by courts are 'mature' -- i.e., that developments in the plaintiff's dispute with the defendant have reached a sufficient level of definition and finality that judicial intervention is appropriate. In the federal courts, the doctrine is rooted in both constitutional text (the Article III requirement that federal courts adjudicate only 'cases' and 'controversies') and the judiciary's inherent discretion, absent statutory proscription, to implement certain "prudential" concerns as to the proper use of judicial resources. (See Endnote 47.)

The Supreme Court has been at pains to spell out what general ripeness principles require in the specialized context of Fifth Amendment takings actions. (See Endnote 48.) Indeed, beginning with Agins v. City of Tiburon (See Endnote 49.) in 1980, the Court's effort to define what constitutes a ripe taking claim became a key theme of its takings decisions. Two decisions dominate the field: Williamson County Regional Planning Comm'n v. Hamilton Bank (1985) (See Endnote 50.) and MacDonald, Sommer & Frates v. Yolo County (1986). (See Endnote 51.) The takings-ripeness precepts set out in these opinions reflect not only the broad judicial desire that only mature issues (particularly when they are constitutional) be adjudicated. More specifically, they are seen by the Court to emanate directly from the Fifth Amendment Takings Clause. (Notwithstanding their Takings Clause roots, some of these precepts also have been applied by certain courts to the substantive due process and equal protection claims commonly made in local land-use litigation. (See Endnote 52.))

The first ripeness element that a taking plaintiff must satisfy is 'finality ripeness." (See Endnote 53.) Finality ripeness insists that before the court can reach the taking claim, the property-regulating government body must have arrived at a 'final, definitive position' as to the type and degree of development allowed on the property. (See Endnote 54.) The Court's reasoning is straightforward: the factors that the Court has articulated for determining whether a government restriction constitutes a taking -- in particular, the economic impact of the government action and the degree of interference with the owner's investment-backed expectations -- require courts to know with some exactness what uses can still be made of a property.

To be ripe, it is generally held that local regulators must be given an opportunity to review at least one 'meaningful' development proposal. (See Endnote 55.) Submission of 'exceedingly grandiose development plans' (see below) is deemed not meaningful, and will likely lead to the need for additional, scaled-down or reconfigured proposals to establish ripeness. The meaningful application requirement also requires that the landowner thoroughly pursue its application for approval of its development proposal, and not 'abandon it at an early stage.' (See Endnote 56.)

Herein lies a major element of the developers' complaint. The judicial need for a clear delineation of what is still allowed on a tract, embodied in the 'final, definitive position' requirement, may create significant burdens for the landowner/developer. Local land use agencies often do not issue declarations as to the maximum degree of development they will allow on a tract. The usual pattern is that they simply approve or disapprove specific development proposals put before them by the landowner/developer. This thumbs-up or thumbs-down mode of responding means that to satisfy the Supreme Court's demand for a final, definitive position as to allowed development, the landowner, following denial of its initial proposal, may have to reapply with modified or scaled-down versions. As the Supreme Court put it: 'rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.' (See Endnote 57.)

But how many reapplications will be necessary before a "final, definitive position" can be judicially discerned? If a 200-unit subdivision is rejected, then a 150-unit version, then 100 units -- will that be enough? Unsurprisingly, the courts have declined to state an absolute- number maximum, raising concerns among developers that the expensive process of preparing reapplications may be prolonged by local government without fear of creating a ripe claim. Court decisions do indeed reveal that on occasion a large number of reapplications is required, and seemingly not in good faith. (See Endnote 58.) Importantly, though, our research reveals no evidence of a judicial tendency to deny takings ripeness after such multiple reapplications. (See Endnote 59.)

As part of securing a final, definitive position from the local agency, the landowner also must exhaust any avenues for a variance, waiver, or other exemption from the land use restriction at issue, and may be required to seek rezoning.

The second takings-ripeness element is 'state compensation ripeness.' (See Endnote 60.) State compensation ripeness demands that filers of federal-court takings actions against state and local regulators first seek compensation from appropriate state forums, if that remedy is available and 'adequate.' This requirement is seen to stem from Takings Clause text. The Clause, says the Supreme Court, bars not the taking of property, but rather the uncompensated taking of property. It follows, the Court says, that there is no violation of the Takings Clause, hence no basis for federal jurisdiction, until a local regulation takes property and the property owner has been denied compensation. (See Endnote 61.)

Issues raised in federal court in connection with the state-compensation requirement often revolve around whether the state's compensation remedy is available and 'adequate.' For example, federal courts split over whether, to declare the federal action unripe, state courts must have affirmatively declared the availability of a compensation remedy, or whether it is enough that such availability be unclear. Another recurring issue has been whether, having pursued his or her compensation remedy in the state courts, the landowner is barred by res judicata or collateral estoppel from litigating the federal taking claim in federal district court (See Endnote 62.). While some federal cases suggest that Williamson County may almost always result in preclusion of federal claims, (See Endnote 63.) other courts have said or suggested that if plaintiff "reserves" his or her federal claim in state court, the claim is preserved for later litigation in the federal court. (See Endnote 64.)

Both prongs of the takings-ripeness doctrine must be met for a claim to be ripe. As to either prong, however, the landowner has a 'futility exemption.' The exemption stipulates that a taking case is ripe despite the owner's failure to satisfy the above prerequisites if pursuing them would, under the circumstances, be futile. (See Endnote 65.)

A decision by the Supreme Court in December, 1997, has ignited a vigorous debate over the continued vitality of the Williamson County ripeness prongs. In City of Chicago v. International College of Surgeons, (See Endnote 66.) the Court addressed a suit alleging state and federal law claims (including Fifth Amending taking) based on the city's denial of a demolition permit for historic properties owned by the plaintiff. The suit had been filed in state court, but was removed to federal court at the request of the city defendant. The Court held that the federal court could exercise supplemental jurisdiction over the state law claims, even though they called for deferential on-the-record review of state agency findings. This expansive view of federal court jurisdiction in a challenge to local land use control has led some to see City of Chicago as undermining Williamson County and highlighting the need for enactment of H.R. 1534. Others, however, point out that the decision makes no mention of ripeness doctrine, and that the Supreme Court reaffirmed Williamson County only last year in its unanimous Suitum decision. (See Endnote 67.)

Asserted need for bills

Supporters of H.R. 1534 outside Congress (principally the National Association of Home Builders) assert that the need for the bill flows from the confluence of two factors. The first is the perceived pro-land-use-regulator leaning of some state courts, and the belief of the bill's supporters that paricularly in those states, the landowner should have the option of having its federal claims heard in federal court. The second factor is the high barriers erected by the Supreme Court to reaching takings and substantive due process claims on the merits -- barriers that, in the view of bill supporters, have been too vigorously implemented by the lower courts. Of these hurdles, the most important are the ripeness prerequisites to adjudication of the taking claim (in federal and state courts) and the abstention doctrine (in federal courts only).

The combined effect of these judicial leanings and threshold barriers, say bill supporters, is that neither federal nor state forum may allow for a full and fair adjudication of the landowner's constitutional claims. In some state courts, there is a pro-regulator mindset (assertedly) and the finality ripeness hurdle. In the federal courts, the landowner/developer encounters finality and compensation ripeness, abstention, and an institutional resistance to becoming involved in local affairs. (And, if the landowner heeds the compensation requirement by litigating in state court first, it is likely to find itself locked out of federal court by doctrines of res judicata and collateral estoppel.) (See Endnote 68.)

A comprehensive study of the seriousness of these claimed obstacles confronting the land developer is well beyond the scope of this report. However, a few observations can be made. As to the asserted unreasonableness of takings ripeness barriers, one can at least note that some law review articles are in agreement. These articles generally fault the lower courts for their assertedly misguided implementation of the Supreme Court's criteria, more than the criteria themselves. (See Endnote 69.)

The charge that federal courts decline to reach the merits in most takings-based section 1983 claims is empirically supported. One article surveyed federal-court takings cases from 1983 to 1988 and found that 94% (34 out of 36) of 'ripeness decisions concerning land use' found lack of ripeness. (See Endnote 70.) A survey of a similar universe of cases from 1990 to 1997, done by counsel for the National Association of Home Builders, found that 81% (25 out of 31) of district court cases and 55% (15 out of 27) of appellate decisions held the takings claims unripe. (See Endnote 71.) Opponents of H.R. 1534 argue that given the expressed preference of federal courts for having local land- use cases adjudicated in the state courts, and the assertedly stubborn refusal of some takings plaintiffs to take the Williamson County requirements seriously, these high percentages are quite understandable. Moreover, other law review articles find the lower courts' application of the High Court's doctrine to be reasonable, and to perform an essential gatekeeping function in the management of the federal docket. (See Endnote 72.)

As to the perceived regulator-friendly tilt of some state courts, suffice it to make two points. First, one person's 'anti-developer bias' may be another's enlightened attitude toward the harmful consequences of unrestricted growth. To be sure, however, a leading treatise does support the existence of a wide spectrum of state-court leanings in landowner- regulator disputes. (See Endnote 73.) Second, looking at how section 1983 claims generally are treated, the studies contradict. (See Endnote 74.) One commentator reasons that federal judges would be expected to decide section 1983 suits more fairly than their state counterparts. (See Endnote 75.) An empirical study, however, concludes that section 1983 suits are treated no differently in state courts than in federal ones. (See Endnote 76.)

Turning from the H.R. 1534 provisions directed at local governments to those aimed at the United States, the need for lowering takings-ripeness hurdles appears less compelling. Neither state-compensation ripeness nor abstention are applicable to the federal defendant. And finality ripeness (at least those aspects of it addressed by H.R. 1534) has not been a major obstacle in takings claims against the United States. (See Endnote 77.) Perhaps the federal-defendant portion of H.R. 1534 was inserted simply for the sake of treating federal and state/local defendants alike.

Endnotes

(29) Clean Air Act Section 307(b); 42 U.S.C. Section 7607(b). Other preclusive review provisions in environmental statutes are: Clean Water Act, 33 U.S.C. Section 1369(b); Safe Drinking Water Act, 42 U.S.C. Section 300j-7; Resource Conservation and Recovery Act, 42 U.S.C. Section 6976; Superfund Act, 42 U.S.C. Section 9613(a); Toxic Substances Control Act (TSCA), 15 U.S.C. Section 2618; Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136n, and Surface Mining Control and Reclamation Act, 30 U.S.C. Section 1276. Non-environmental examples include the Occupational Safety and Health Act, 29 U.S.C. Section 660, and Consumer Product Safety Act, 15 U.S.C. Section 2060.

(30) Sec. 5(b).

(31) Sec. 2(a)(4).

(32) See, e.g., Safe Drinking Water Act Section 300j-7(b); Surface Mining Control and Reclamation Act, 30 U.S.C. Section 1276.

(33) Under well-settled law, invalidation is not available as a remedy for a Fifth Amendment taking in the usual case; 'just compensation' is deemed sufficient. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984). See also First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314 (1987) (Takings Clause 'does not prohibit the taking of private property, but instead places a [compensation] condition on the exercise of that power').

(34) Sec. 5(a).

(35) Portions of the abstention discussion here are adapted from a draft of a forthcoming book on the takings issue. The relevant portion of the book was written by Richard M. Frank, a Senior Assistant Attorney General with the State of California.

(36) Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1970).

(37) See generally Julie A. Davies, Pullman and Burford Abstention: Clarifying the Roles of State and Federal Courts in Constitutional Cases, 20 U.C. Davis L. Rev. 1 (1986).

(38) Announced in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).

(39) A leading treatise asserts that the Supreme Court's enthusiasm for Pullman abstention appeared to wane during the 1960s, the Court pointing to the delays that often result from remitting plaintiff to a different court. More recently, however, the Burger Court resuscitated the doctrine to some degree, and despite the small number of recent supportive cases in the Supreme Court, the doctrine continues to be invoked in the lower federal courts. Federal Courts, supra note 25, at 1237.

(40) Harrison v. NAACP, 360 U.S. 167 (1959).

(41) Section 1983, 42 U.S.C. Section 1983, is the most often used provision of the Civil Rights Right Act of 1871. It creates a federal cause of action on behalf of any person deprived of federal rights 'under color of' state law. Though the original motivation for section 1983 was to ensure that the freedoms granted to southern blacks after the Civil War would not be at the mercy of unfriendly state courts, the language of the provision admits of far broader usage. Today, section 1983 remains a popular basis for assertion of federal rights in federal (and state) court, in part because of a companion provision, 42 U.S.C. Section 1988, allowing for the award of attorneys fees to prevailing parties.

(42) There appears to be broad consensus that certification allows resolution of state law questions more expeditiously than by the traditional method of requiring a party to file a declaratory judgment action in the state trial court and possibly have to appeal up to the state high court. See generally Charles A Wright, Law of Federal Courts 334-335 (5th ed. 1994).

(43) Announced in Burford v. Sun Oil Co., 319 U.S. 315 (1943).

(44) The key follow-up case to Burford is Alabama Public Service Comm'n v. Southern Ry., 341 U.S. 341 (1951), holding that '[a]s adequate state court review of an administrative order based upon predominantly local factors is available to appellee, intervention of a federal court is not necessary for the protection of federal rights.' While the Supreme Court has not invoked Burford abstention since this decision, its recent references to the case suggest its latter-day viability.

(45) 517 U.S. 706 (1996).

(46) First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).

(47) Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659, 1665 n.7 (1997), quoting Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57 n.18 (1993).

(48) For a general treatment of takings ripeness doctrine in the federal courts, see Daniel R. Mandelker, Jules B. Gerard, and Thomas E. Sullivan, Federal Land Use Law Section 4A.02 (1997).

(49) 447 U.S. 255 (1980). Some argue that the era of takings- ripeness concern in the land use area actually began two years earlier, in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). That decision raised several ripeness-like concerns, though it did not mention ripeness by name.

(50) 473 U.S. 172 (1985).

(51) 477 U.S. 340 (1986).

(52) See, e.g., Del Monte Dunes v. City of Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990). Later cases suggest that courts are most likely to impose takings-ripeness in nontaking claims when the arguments underlying the taking and nontaking claims are similar. Thus far, it appears that principally finality ripeness, and only rarely compensation ripeness, has been applied to substantive due process and equal protection challenges to local land use controls. See Note, The Applicability of Compensation to Substantive Due Process Claims, 100 Yale L. J. 2667 (1991).

(53) The finality ripeness prerequisite applies only to as- applied takings claims -- the large majority of takings suits. It does not apply to the far less frequent instance of facial takings challenges. See Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659, 1666 n.10 (1997). In addition, finality ripeness is per se satisfied in takings claims based on physical invasions of property, rather than restriction of use. "A physical taking ... is by definition a final decision ...." Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1402 (9th Cir. 1989), cert. denied, 494 U.S. 1016 (1990).

(54) Williamson County, at 191. Or as the Court put it in MacDonald, at 348: 'a final and authoritative determination of the type and intensity of development legally permitted.'

(55) In MacDonald, the Supreme Court appeared to endorse a state-court requirement that a 'meaningful' application is a ripeness prerequisite. 477 U.S. at 353 n.8. Lower courts have turned the implied endorsement into an established pillar of takings finality ripeness. See, e.g., Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1992). In the alternative phrase, there must be at least one 'reasonable' application. Id.

(56) Southern Pacific, 922 F.2d at 503.

(57) MacDonald, at 353 n.9. The 'reapplication requirement' in the law of finality ripeness is generally drawn from this decision.

(58) See, e.g., Del Monte Dunes, 920 F.2d 1496 (four reapplications for progressively smaller residential developments denied, despite prior signals from city they would be received favorably); Schulz v. Milne, 849 F. Supp. 708 (N.D. Cal. 1994), aff'd in part, reversed in part on other grounds, 98 F.3d 1346 (9th Cir. 1996) (remodeling permit granted after thirteen reapplications "in compliance with all applicable zoning laws" denied).

(59) In Del Monte Dunes, for example, the court found that "[r]equiring appellants to persist with this protracted application process to meet the final decision requirement would implicate ... concerns about disjointed, repetitive, and unfair procedures ...." Accordingly, it found the taking claim ripe. 920 F.2d at 1506.

(60) Compensation ripeness clearly applies to as-applied takings claims. Courts have split, however, on whether it applies to the rarer, facial type of taking claim.

(61) Williamson County, at 194-195.

(62) The judicially created doctrines of res judicata and collateral estoppel are said to promote judicial efficiency by preventing multiple lawsuits over the same matter, and to enable parties to rely on the finality of adjudications.

(63) See, e.g., Wilkinson v. Pitkin County, 1998 WL 216085, *7n.4 (10th Cir. May 4, 1998); Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995) (res judicata bars federal court adjudication of categorical taking claim), 136 F.3d 1219 (9th Cir. 1998) (collateral estoppel bars federal court adjudication of same claim).

(64) Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1306 (11th Cir. 1992); Industrial Park Corp. v. Town of Front Royal, 135 F.3d 275, 283 (4th Cir. 1998).

(65) See, e.g., MacDonald, 477 U.S. at 350 n.7 ('property owner is of course not required to resort to ... unfair procedures ....'); id. at 359 (White, J., dissenting) (takings ripeness does not require landowner to take 'patently fruitless measures').

(66) 118 S. Ct. 523 (1997).

(67) See, e.g., Letter from Andrew Fois, Ass't Att'y General, U.S. Dep't of Justice, to Hon. Patrick J. Leahy (Feb. 25, 1998).

(68) See , e.g., Gideon Kanner, Federal Reserve: Landowners are Proceeding to Congress to Get Their Cases Heard, S.F. Daily J. at 4 (March 11, 1998).

(69) Brian W. Blaesser, Closing the Federal Courthouse Door to Property Owners: The Ripeness and Abstention Doctrine in Section 1983 Land Use Cases, 2 Hofstra Prop. L. J. 73 (1988); Timothy v. Kassouni, The Ripeness Doctrine and the Judicial Relegation of Constitutionally Protected Property Rights, 29 Cal. W. L. Rev. 1 (1992); Gregory Overstreet, The Ripeness Doctrine of the Takings Clause: A Survey of Decisions Showing Just How Far Federal Courts Will Go to Avoid Adjudicating Land Use Cases, 10 J. Land Use & Envtl. L. 91 (1994); Gregory Overstreet, Update on the Continuing and Dramatic Effect of the Ripeness Doctrine on Federal Land Use Litigation (Part II), 20 Zoning and Planning Law Report 25 (April, 1997).

(70) Brian W. Blaesser, Closing the Federal Courthouse Door to Property Owners: The Ripeness and Abstention Doctrine in Section 1983 Land Use Cases, 2 Hofstra Prop. L. J. 73, 91 (1988). The study does not include land-use takings cases against the federal government, where ripeness is much less frequently an obstacle to the plaintiff.

(71) Memorandum to House Judiciary Committee, Subcomm. on Courts and Intellectual Property, from Linowes and Blocher L.L.P. (Sept. 22, 1997).

(72) Michael Whitman, The Ripeness Doctrine in the Land-Use Context: The Municipality's Ally and the Landowner's Nemesis, 29 Urban Lawyer 13 (1997); R. Jeffrey Lyman, Finality Ripeness in Federal Land Use Cases from Hamilton Bank to Lucas, 9 J. Land Use & Envtl. L. 101 (1994).

(73) This treatise asserts that 13 states have heavily dominated the zoning case law. The 'pro-zoning states,' as it calls them, are California, New Jersey, Massachusetts, Maryland. 'Erratic states' are Michigan, Ohio, Florida, New York, and Pennsylvania. 'Good gray middle' states are Connecticut and Texas. 'Strongly developer-minded states' are Illinois and Rhode Island. Norman Williams, Jr., American Land Planning Law ch. 6 (1988 rev.).

(74) Longtime students of judicial federalism issues will recognize this as but one more manifestation of the 'parity' debate -- whether state courts are as fair or as competent as the federal courts to resolve federal claims. See generally Federal Courts, supra note 25, at 351-353.

(75) Brian W. Blaesser, Closing the Federal Courthouse Door on Property Owners: The Ripeness and Abstention Doctrines in Section 1983 Land Use Cases, 2 Hofstra Prop. L. J. 73, 74 (1988).

(76) Michael E. Solimine, Rethinking Exclusive Federal Jurisdiction, 52 Univ. Pitt. L. Rev. 383, 418 (1991) (surveys section 1983 decisions during 1987 and concludes that 'state courts are dealing with section 1983 much as are their federal counterparts').

(77) See, e.g., Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381 (1988) (Corps of Engineers' reasons for denying wetlands fill permit make further applications under MacDonald unnecessary).