Tucker v. Winterport, Town of ( 1993 )

USCA1 Opinion

          July 29, 1993         [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT




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          No. 93-1234

            


                                WENDELL E. TUCKER, ET AL.,

                                 Plaintiffs, Appellants,

                                          v.

                                 TOWN OF WINTERPORT,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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                                 ___________________

               Charles W. Hodsdon, II, on brief for appellants.
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               Richard D. Violette, Jr., on brief for appellee.
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                      Per  Curiam.    The  appellants  are  residents  of
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            Winterport, Maine.  All own property near a site on which the

            Town  of Winterport  stored  salt and  sand  to be  used  for

            highway snow removal.  According to the appellants, salt  and

            other contaminants from the  pile polluted their  properties,

            damaging their plumbing and making their well water unfit for

            consumption by people or animals.

                 The  appellants sued  the  Town and  the contractor  who

            maintained  the pile  of  salt and  sand.   They  filed  this

            lawsuit in a  state court, alleging  violations of the  Maine

            Tort Claims Act,  14 M.R.S.A.   8101 et seq.   The appellants

            later amended  their complaint  to include  a claim  under 42

            U.S.C.   1983, on  the basis of which the  defendants removed

            the  lawsuit to federal court.  The defendants then moved for

            summary judgment  on the Section  1983 claim.   A magistrate-

            judge  recommended giving summary  judgment to the defendants

            and  the  district court  accepted  the  recommendation.   It

            granted judgment to the defendants on the Section 1983 claim,

            and remanded the  outstanding state law  claims to the  state

            court.    This  appeal  followed.   Finding  no  "substantial

            question"  about  the  correctness of  the  district  court's

            decision, we summarily affirm.  See First Circuit Local  Rule
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            27.1.

                 The magistrate-judge's recommended decision was based on

            his understanding  that the  appellants'  Section 1983  claim



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            alleged a  "taking of their property  without compensation in

            violation of  the  Fifth Amendment."    The  magistrate-judge

            reasoned  that the  salt pollution  at issue  here was  not a

            "taking"  because it  only  diminished, but  did not  totally

            destroy,  the value  of  the appellants'  land.   See  Ortega
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            Cabrera v.  Municipality of Bayamon,  562 F.2d  91, 101  (1st
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            Cir.  1977).   The  district judge  apparently accepted  this

            reasoning.

                 We affirm the grant of summary judgment without reaching

            this  issue because we find  that, whether or  not a "taking"

            has  occurred, the appellants' Section 1983 claim is not ripe

            for adjudication.   "The  Fifth Amendment does  not proscribe

            the  taking of  property; it  proscribes taking  without just

            compensation."  Williamson County Regional Planning Comm'n v.
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            Hamilton Bank, 473 U.S. 172, 194 (1985).  If state  law makes
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            "reasonable,  certain and adequate"  provision for  relief, a

            "property  owner  cannot  claim   a  violation  of  the  Just

            Compensation Clause  until it has used the procedure and been

            denied just compensation."  Id. at 194-95.
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                 Nothing  in the record  here gives us  reason to believe

            that the  appellants have yet  resorted to state  process and

            failed to obtain just compensation.  Nor have the  appellants

            shown us  that the  state's procedures  are inadequate.   See
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            Gilbert v. City of Cambridge, 932 F.2d 51, 65 (1st Cir. 1991)
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            (property owner who  claims a taking in federal court without



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            first exhausting state remedies has the burden of proving the

            inadequacy of  those remedies).  The  appellants' own amended

            complaint suggests that they hold  out hope of recovery under

            the Maine Tort Claims Act.  We note, too, that although Maine

            does not  have a  statutory inverse condemnation  remedy, see
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            Lerman  v. City  of  Portland, 675  F.Supp. 11,  15-16 (D.Me.
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            1987), the Maine  Supreme Judicial  Court -- in  a case  that

            also involved pollution caused by salt used  for highway snow

            removal --  has created  a nonstatutory  right  of action  on

            behalf of property  owners subjected  to a taking.   Foss  v.
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            Maine Turnpike  Authority, 309  A.2d 339, 343-45  (Me. 1973).
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            We  have  held  that a  property  owner  must  pursue such  a

            nonstatutory remedy before he  can maintain a federal damages

            claim under the Fifth  Amendment.  Culebras Enterprises Corp.
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            v. Rivera Rios, 813 F.2d 506, 515 (1st Cir. 1987).
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                 To sum  up, because the plaintiffs  have neither availed

            themselves   of   state   procedures   for   obtaining   just

            compensation,  nor   demonstrated  the  inadequacy   of  such

            procedures, their  takings claim  is unripe and  was properly

            dismissed.

                 Affirmed.
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