AMENDED ORDER ON DEFENDANT'S MOTION TO DISMISS
NANCY TORRESEN, Chief District Judge.
Plaintiff R.J. Potvin, III Investment Trust ("Potvin" or the "Trust") brings this negligence and inverse condemnation action seeking compensation for damage to its real estate caused by a leaky water pipe owned by the Auburn Water District (the "District"). After removing the case from state court, the District has moved to dismiss the takings claim as unripe or subject to Burford abstention under Fed. R. Civ. P. 12(b)(6) "and/or" 12(b)(1) and the tort claim for a lack of supplemental jurisdiction. Def.'s Mot. 1 (ECF No. 4). For the reasons that follow, the case is REMANDED to state court.
BACKGROUND
I accept all of the Plaintiff's well-pled allegations as true. For purposes of this motion none of the relevant facts are disputed.
The Plaintiff owns various properties, including at least one in Auburn, Maine. Compl. ¶¶ 6, 8 (ECF No. 3-3). In January of 2017, the Plaintiff became aware of a "serious ice build-up in the parking lot" of that property. Compl. ¶ 8. The Plaintiff eventually contacted the District about "the ice situation." Compl. ¶¶ 11-12. The District sent employees to assess; they told Potvin that the problem was not the result of a water leak. Compl. ¶¶ 13-14. In July, Potvin asked the District's Director, Sid Hazelton, to come observe the ongoing problem at the scene. Compl. ¶ 20. Hazelton did so, ordered a water test, and discovered that the water on Potvin's property was indeed coming from the District's system. Compl. ¶ 20. He then ordered a road dug up to repair the broken water main causing the flows. Compl. ¶ 21.
In December, the Plaintiff brought suit in Maine Superior Court alleging that the District negligently allowed the flows from the broken water main to flood and damage its property (Count I), and that the flows amounted to a taking of the its flowage rights without the formality of eminent domain proceedings (Count II).1 Compl. ¶¶ 23-27, 36-37. It seeks damages for the taking via 42 U.S.C § 1983 and for the District's negligence pursuant to the Maine Tort Claims Act. Compl. ¶¶ 31, 40. The Defendant removed the action on the basis of the federal takings claim. Notice of Removal ¶ 2 (ECF No. 1) (citing 28 U.S.C. § 1331).
DISCUSSION
The Defendant argues the takings claim should be dismissed—not remanded— either because it is unripe or because of Burford abstention, and that I should then decline supplemental jurisdiction over and dismiss—not remand—the tort claim. Def.'s Mot. 1; Def.'s Reply 3 (ECF No. 7). I consider these arguments in turn.
I. The Takings Claim
A. Ripeness
The Fifth Amendment proscribes the taking of private property for public use without just compensation. In order to bring a regulatory takings claim in federal court, two ripeness requirements must be met: first, the governmental entity accused of the taking must have reached a final decision; and second, the property owner must have asked for and been denied just compensation. Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). The plaintiff bears the burden of proving the two requirements have been met. Downing/Salt Pond Partners, L.P. v. Rhode Island & Providence Plantations, 643 F.3d 16, 20 (1st Cir. 2011).
Where, as here, the claim is that the government entity physically took property, as opposed to doing so through regulation, "the final decision requirement is relieved or assumed because `where there has been a physical invasion, the taking occurs at once, and nothing the [government actor] can do or say after that point will change that fact.'" Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 91 (1st Cir. 2003). But the second requirement, variously known as the state-exhaustion requirement, the state-litigation requirement, and the state-action requirement, must still be met. See id. At issue in this case is the second requirement.
To satisfy the state-litigation requirement, a takings plaintiff must "seek compensation through the procedures the State has provided for doing so." Williamson, 473 U.S. at 194. "If the government has provided an adequate process for obtaining compensation, and if a resort to that process `yields just compensation,' then the property owner `has no claim against the Government' for a taking." Williamson, 473 U.S. at 194-95 (citations omitted).2
"An inverse condemnation cause of action is a classic example of such a particularized procedure; it gives a property owner aggrieved by government conduct the opportunity to obtain compensation, thereby avoiding an unconstitutional taking." Asociacion De Subscripcion Conjunta Del Seguro De Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 17 (1st Cir. 2007); see also Tucker v. Town of Winterport, 1 F.3d 1231 (Table), 1993 WL 312895, at *1 (1st Cir. July 29, 1993); Lerman v. City of Portland, 675 F.Supp. 11, 16 (D. Me. 1987), aff'd, 879 F.2d 852 (1st Cir. 1989).
Maine recognizes an inverse condemnation cause of action, which must be pursued in state court before the Plaintiff's federal takings claim is ripe. Lerman, 675 F. Supp. at 16 (citing Foss v. Maine Tpk. Auth., 309 A.2d 339, 344 (Me. 1973)); Drake v. Town of Sanford, 643 A.2d 367, 369 (Me. 1994) (citing Foss and Lerman). Indeed, the Complaint, while not a model of clarity, appears to state a claim for inverse condemnation.3 Because the Plaintiff was pursuing its takings claim in state court before the Defendant removed the action, the question arises: what are we doing here? Why has the Defendant removed the action to federal court, only to file a motion that requires the Plaintiff to return to state court?
In pressing its Williamson argument, the Defendant points not to Foss and the other state inverse condemnation authorities, but to Maine statutory procedures that it says the Plaintiff must use before its claim ripens and that thus require dismissal and not remand. Def.'s Mot. 5-7, 10 (citing 35-A M.R.S. §§ 6501-6512, 6701-6706). The problem for the Defendant is that these procedures apply to condemnation proceedings, not inverse condemnation proceedings. The differences between these proceedings have been explained by the Supreme Court as follows:
Although a landowner's action to recover just compensation for a taking by physical intrusion has come to be referred to as "inverse" or "reverse" condemnation, the simple terms "condemn" and "condemnation" are not commonly used to describe such an action. Rather, a "condemnation" proceeding is commonly understood to be an action brought by a condemning authority such as the Government in the exercise of its power of eminent domain. . . . The phrase "inverse condemnation" appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.
Flores Galarza, 484 F.3d at 16 n.19 (quoting United States v. Clarke, 445 U.S. 253, 255-57 (1980)); see also Larrabee v. Town of Knox, 744 A.2d 544, 545 n.3 (Me. 2000) (inverse condemnation is a "cause of action against a government agency to recover the value of property taken by the agency, though no formal exercise of the power of eminent domain has been completed" (citing Black's Law Dictionary 740 (5th ed. 1979))). "In other words, inverse condemnation affords compensation to a property owner when the government unconstitutionally takes his property in some indirect way." City of S. Portland v. Maine Mun. Ass'n, 953 A.2d 1128, 1130 (Me. 2008).
The statutes the Defendant cites all contemplate that some governmental body has initiated eminent domain proceedings.4 The Defendant itself repeatedly refers to these statutes as "eminent domain procedures" or "procedure[s] for eminent domain." Def.'s Mot. 4, 5, 7. Eminent domain actions contemplate the formal transfer of title. Cf. 35-A M.R.S. § 6512(2) ("Failure to provide, in an act expressly conferring the right of eminent domain, for an act necessary to carry out the taking is a substantial error and the plaintiff shall be given judgment of title.").
The Defendant claims these procedures "are similar to the then-applicable Tennessee process described in Williamson County." Def.'s Mot. 5. And so they are, to a point. Like the Maine statutory scheme, they "outline[] the procedures by which government entities must exercise the right of eminent domain." Williamson, 473 U.S. at 196. Unlike Maine's law, however, the Tennessee statutory scheme provided property owners recourse "if a government entity does take possession of the land without following the required procedures." Id. (citing Tenn. Code Ann. § 29-16-123).5 The Maine procedures offer no such recourse. As noted above, they apply to takings accomplished by eminent domain in actions initiated by the state. They do not provide an inverse condemnation remedy, as this Court has previously recognized. See Lerman, 675 F. Supp. at 16 (noting, in December of 1987, that "Maine has no inverse condemnation statute like that relied upon by the Court in Williamson); Caspar F. Cowan & J. Gordon Scannell, Jr., 1 Maine Prac., Real Estate Law & Prac. § 16:3 (noting that Title 35-A of the Maine Revised Statutes, which sets out "a more nearly uniform set of eminent domain provisions," became effective July 1, 1987); cf. Drake, 643 A.2d at 369 ("Maine does allow inverse condemnation claims." (citing Foss, not Title 35-A)); King v. Town of Monmouth, 697 A.2d 837, 842 n.11 (Me. 1997) (noting favorable outcome of "state non-statutory inverse condemnation" proceeding).
The Plaintiff has alleged that "the Defendant did not exercise any formal eminent domain proceedings against [it] to obtain the flowage rights." Compl. ¶ 37. The procedures the Defendant points to are thus inapplicable here,6 and it would not make sense to direct the Plaintiff to pursue this statutory "remedy" in the absence of a formal condemnation proceeding.7 The Plaintiff needs to do exactly what the Plaintiff was doing before this case was removed to federal court—pursue an inverse condemnation proceeding in state court.
The Defendant claims that the failure to follow the state procedures requires me to dismiss the takings claim. Def.'s Mot. 10. The Defendant argues that the "First Circuit previously endorsed [dismissal] in circumstances identical to this" in Deniz v. Municipality of Guaynabo, 285 F.3d 142, 150 (1st Cir. 2002). Def.'s Reply 2. The circumstances of this case are hardly "identical" to Deniz for the obvious reason that this case was removed from state court while the plaintiff in Deniz filed his action in federal court to begin with. 285 F.3d at 146. Remand was not an option for the court in Deniz, but remand of the takings claims is an option for me and it is entirely appropriate here.8
B. Burford Abstention
As an alternative to its ripeness argument, the Defendant argues that I should abstain from hearing the case under Burford v. Sun Oil Co., 319 U.S. 315 (1943) and its progeny. Burford abstention would not be appropriate here because it is limited to "cases in which a federal court is asked to provide some form of discretionary relief." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996). The Plaintiff seeks damages for the alleged taking. Compl. ¶ 30. There is nothing discretionary about that relief. Cf. Sinclair Oil Corp. v. Cty. of Santa Barbara, 96 F.3d 401, 410 n.6 (9th Cir. 1996) (directing a lower court not to dismiss a takings claim on abstention grounds because, under Quackenbush, "federal courts can dismiss based on abstention only where the relief sought is equitable or otherwise discretionary"). Burford abstention thus could not support an outright dismissal here.
II. TheTortClaim
"[A] remand [of pendent state law claims] may best promote the values of economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 353 (1988). The values supporting a remand of pendent state law claims in Cohill support one in this case too, where prudential limitations require the substance of the Plaintiff's federal claim to be litigated in state court using a state law cause of action. Having remanded the takings claim, I decline supplemental jurisdiction over the tort claim and remand it as well. See 28 U.S.C. § 1367(c)(3); 14C Wright & Miller, Fed. Prac. & Proc. Juris. § 3739 n.121 & accompanying text (4th ed.). This would be appropriate even if the takings claim were being dismissed and not remanded.9
CONCLUSION
For the reasons stated above, the case is REMANDED to state court.
SO ORDERED.
