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July 29, 1993 [NOT FOR PUBLICATION]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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