                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 07a0004p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                      X
                              Plaintiffs-Appellants, -
 HARRY MCNAMARA, et al.,
                                                       -
                                                       -
                                                       -
                                                           No. 02-3965
           v.
                                                       ,
                                                        >
 THE CITY OF RITTMAN,                                  -
                               Defendant-Appellee. -
                                                       -
                                                       -
                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Northern District of Ohio at Cleveland.
               No. 00-03046—Kathleen McDonald O’Malley, District Judge.
                                   Argued: December 4, 2003
                              Decided and Filed: January 8, 2007
                 Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.
                                      _________________
                                          COUNSEL
ARGUED: Steve J. Edwards, Grove City, Ohio, for Appellants. Melvin L. Lute, Jr., BAKER,
DUBLIKAR, BECK, WILEY & MATHEWS, North Canton, Ohio, for Appellee. ON BRIEF:
Steve J. Edwards, Grove City, Ohio, for Appellants. Melvin L. Lute, Jr., Jack R. Baker, BAKER,
DUBLIKAR, BECK, WILEY & MATHEWS, North Canton, Ohio, for Appellee.
                                      _________________
                                          OPINION
                                      _________________
        BOYCE F. MARTIN, JR., Circuit Judge. This case involves a federal takings claim arising
from the City of Rittman’s operation of water wells that allegedly caused damage to plaintiffs. In
our initial review of the district court’s judgment, we requested that the Supreme Court of Ohio
answer an important question of first impression involving a property owner’s interest in the
groundwater beneath his property. The Supreme Court of Ohio has now answered that question.
For the reasons articulated below, we AFFIRM the decision of the district court.




                                                1
No. 02-3965           McNamara, et al. v. City of Rittman                                          Page 2


                                                   I
       In 1973, the City of Rittman, Ohio, purchased a tract of land near the City of Sterling for the
purpose of drilling three wells there to serve the City of Rittman’s water needs. By 1980, the City
of Rittman had completed this project and began operating the wells, which now supply it with
between 500,000 and 750,000 gallons of water per day.
                                    A. State Court Proceedings
        On January 4, 1994, the plaintiffs, all of whom are residents of the City of Sterling, filed a
complaint in state court seeking damages and injunctive relief against the City of Rittman. The
plaintiffs alleged that the City of Rittman’s use of the three new wells lowered their aquifer, causing
them to suffer water shortages and adversely affecting the quality of their water. Additionally, the
plaintiffs alleged that the City of Rittman’s actions forced them to drill new wells and purchase new
water pumps and water-softening equipment. The plaintiffs argued that the City of Rittman’s
activities constituted an “unreasonable dewatering” pursuant to the cause of action recognized by
the Supreme Court of Ohio in Cline v. American Aggregates Corporation, 474 N.E.2d 324 (Ohio
1984). The state trial court granted summary judgment to the City of Rittman based on sovereign
immunity and statute of limitations grounds. The court of appeals affirmed under similar reasoning,
noting that the Cline rules are only of immediate concern in dewatering actions brought against
private defendants. McNamara v. City of Rittman, 707 N.E.2d 967, 972 (Ohio Ct. App. 1998).
Where the defendant is a political subdivision of the state, however, the sovereign immunity inquiry
necessarily precedes any analysis under Cline. Id. Here, the state court of appeals affirmed that
sovereign immunity bars the plaintiffs’ prayers for relief, whether for damages or an injunction. Id.
The Supreme Court of Ohio dismissed the plaintiffs’ appeal as improvidently granted. McNamara
v. City of Rittman, 707 N.E.2d 943 (Ohio 1999).
                                   B. Federal Court Proceedings
        On December 7, 2000, the plaintiffs filed a federal complaint seeking relief under 42 U.S.C.
§ 1983, alleging that the City of Rittman’s actions constituted (1) a taking of their property without
just compensation in violation of the Fifth Amendment, and (2) a violation of their right to
procedural due process under the Fifth and Fourteenth Amendments. The district court concluded
that the plaintiffs’ takings claim was time-barred by the statute of limitations:
       [N]either Williamson County [Regional Planning Commission v. Hamilton Bank, 473
       U.S. 172 (1985)] nor any subsequent takings case law holds that a plaintiff must
       pursue all conceivable means of remedy before a federal takings claim is ripe. . . .
       Williamson County requires only that a plaintiff attempt to obtain just compensation
       for a taking through procedures designated for that purpose. Williamson County, 473
       U.S. at 194-95. Where that procedure is deemed inadequate, as it has been in Ohio,
       see Kruse [v. Village of Chagrin Falls,] 74 F.3d at 698, then a takings claim is ripe
       immediately. . . . Accordingly, the Court finds that Plaintiffs’ takings claim ripened
       immediately when Plaintiffs knew or should have known of the underlying injury.
       Plaintiffs must have acquired this knowledge no later than when Plaintiffs filed their
       state court Complaint. See Conlin v. Blanchard, 890 F.2d 811, 815 (6th Cir. 1989).
       Because the statute of limitations on § 1983 claims in Ohio is two years, and because
       Plaintiffs did not file their takings claim in federal court until six years after they
       filed their state Complaint, their takings claim is barred by the statute of limitations.
D. Ct. Op., Aug. 8, 2002, at 10-11 (emphasis in original). As for the plaintiffs’ due process claim,
the district court ruled that it was similarly time-barred, because “Plaintiffs’ procedural due process
claim, like their takings claim, ripened immediately when Plaintiffs knew or should have known of
the underlying injury.” Id. at 15.
No. 02-3965               McNamara, et al. v. City of Rittman                                                     Page 3


         This panel heard the appeal of the district court judgment on December 4, 2003. We
determined that the takings issue could not be resolved without first understanding whether an
“unreasonable dewatering” action under Cline implicates property rights. Thus, we filed an order
certifying the following question to the Supreme Court of Ohio: “Does an Ohio homeowner have
a property interest in so much of the groundwater located beneath the land owner’s property as is
necessary to the use and enjoyment of the owner’s home?” On December 21, 2005, the Supreme
Court of Ohio answered this question in the affirmative, holding that “Ohio landowners have a
property interest in the groundwater underlying their land,” and thus “governmental interference
with that right can constitute an unconstitutional taking.” McNamara v. City of Rittman, 838 N.E.2d
640, 646 (Ohio 2005). Having received this answer, we are confident that our Circuit’s takings
jurisprudence—in particular, that portion pertaining to takings under Ohio law—applies full force
to this appeal.
                                                            II
        This Court reviews de novo a district court’s holding that a legal claim is barred by the
applicable statute of limitations period. See Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.
2003). “The statute of limitations for federal civil rights claims is the appropriate state statute of
limitations.” Lawson v. Shelby County, 211 F.3d 331, 336 (6th Cir. 2000) (citing Wilson v. Garcia,
471 U.S. 261). In this case, the1parties agreed that the applicable statute of limitations is two years.
See Ohio Rev. Code § 2305.10. Based on this statute of limitations, the district court dismissed the
action because the federal § 1983 action was filed six years after the filing of the claim in state court.
The district court found that plaintiffs knew of their injury, at the very latest, at the time of filing the
state court action in 1994, thus making the action four years late.
         While we agree with the district court’s ultimate resolution of the matter, it is important to
clarify some of the nuances of this case not addressed in its opinion. In particular, we have
separated our analysis into two parts: (1) “past violations” — based on the premise that the
constitutional violation committed by the City, if any was committed at all, has already occurred;
and (2) “continuing violations” — based on the notion that a new constitutional violation, if any
exists, continues to be committed by the City, and inflicted on the plaintiffs, each day. See Kuhnle
Brothers, Inc. v. County of Geauga, 103 F.3d 516, 522 (6th Cir. 1997).
                                                 A. Past Violations
        In its December 2000 complaint before the district court, the plaintiffs’ primary allegation
was that the City’s dewatering of their wells represented an unconstitutional taking of their property,
and that they should be entitled to damages—compensation in the form of $25,000 per individual
plaintiff—for this taking. A threshold question in any federal takings action, however, is whether
or not the case is ripe for review; for if it is not ripe, then we lack jurisdiction to hear the case.
Williamson, 473 U.S. at 194-95. In Williamson, the Supreme Court ruled that constitutional takings
claims are not ripe for federal court review until state compensation procedures, assuming they exist
and are adequate, have been exhausted:
         The recognition that a property owner has not suffered a violation of the Just
         Compensation Clause until the owner has unsuccessfully attempted to obtain just


         1
           In 2004, the Ohio legislature added a time-limitation provision in actions “[f]or relief on the grounds of a
physical or regulatory taking of real property.” Ohio Rev. Code § 2305.09(E). This new limitations period is four years,
not two. Thus, any takings actions brought after 2004 should follow the four-year time bar, and this could be relevant
to any continuing violations actions plaintiffs may wish to bring in the future, as discussed in Part II-B of this opinion.
However, as to the original action brought by the plaintiffs and dismissed by the state and district courts on statute of
limitations grounds, the two-year limit properly applies.
No. 02-3965           McNamara, et al. v. City of Rittman                                         Page 4


        compensation through the procedures provided by the State for obtaining such
        compensation is analogous to the Court’s holding in Parratt v. Taylor, 451 U.S. 527,
        101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). There, the Court ruled that a person
        deprived of property through a random and unauthorized act by a state employee
        does not state a claim under the Due Process Clause merely by alleging the
        deprivation of property. In such a situation, the Constitution does not require
        predeprivation process because it would be impossible or impracticable to provide
        a meaningful hearing before the deprivation. Instead, the Constitution is satisfied by
        the provision of meaningful postdeprivation process. Thus, the State’s action is not
        “complete” in the sense of causing a constitutional injury “unless or until the State
        fails to provide an adequate postdeprivation remedy for the property loss.” Hudson
        v. Palmer, 468 U.S. 517, 532, n. 12, 104 S.Ct. 3194, 3203, n. 12, 82 L.Ed.2d 393
        (1984). Likewise, because the Constitution does not require pretaking compensation,
        and is instead satisfied by a reasonable and adequate provision for obtaining
        compensation after the taking, the State’s action here is not “complete” until the
        State fails to provide adequate compensation for the taking.
Id. at 195.
        The critical inquiry after Williamson, therefore, is whether or not the state compensation
procedures are “reasonable, certain, and adequate.” Id. at 194. This inquiry is necessarily time-
specific, because a state may have inadequate compensation procedures at one point in time, but
these may at a later date be rectified by statute (via the state legislature) or through evolution of the
common law (via state courts). See Arnett v. Myers, 281 F.3d 552, 563 (6th Cir. 2002) (stating that
“Williamson specifically instructs that the relevant time frame for determining the adequacy of state
provisions for obtaining just compensation for an alleged taking is ‘at the time of the taking’”). This
is exactly what happened in the 1990s in Ohio.
       Ohio currently has a “reasonable, certain, and adequate procedure” available to takings
claimants in state courts:
        Ohio does not have an inverse condemnation or other direct, statutory cause of action
        for plaintiffs seeking just compensation for a taking. Rather, Ohio law provides a
        statutory mechanism by which the government actor seeking to take property is
        under a duty to bring an appropriation proceeding against the landowner. See Ohio
        Rev. Code §§ 163.01-163.62; Shemo v. City of Mayfield Heights, 95 Ohio St. 3d 59,
        765 N.E.2d 345, 350 (2002). A property owner who believes that his property has
        been taken in the absence of such an appropriation proceeding may initiate a
        mandamus action in Ohio court to force the government actor into the correct
        appropriation proceeding. . . . Over the last ten years Ohio courts, including the Ohio
        Supreme Court, have consistently recognized mandamus as the vehicle with which
        to contest an involuntary taking, no matter whether that taking is a regulatory or a
        physical one, and no matter whether the public actor is a state or local entity.
Coles v. Granville, 448 F.3d 853, 861, 865 (6th Cir. 2006). However, it was not until 1994 that the
availability of such a mandamus action was made explicit by the Supreme Court of Ohio. See Levin
v. City of Sheffield Lake, 637 N.E.2d 319, 323-34 (Ohio 1994); see also Coles, 448 F.3d at 864
(noting that in Ohio, the Levin decision was the “genesis of the modern recognition of the mandamus
action to force appropriation proceedings”). Thus, prior to the Levin decision, Ohio’s compensation
procedures in takings cases were decidedly not adequate. Williamson therefore had little impact on
takings claims brought in Ohio prior to Levin, as such claims were immediately ripe for federal
review.
No. 02-3965                McNamara, et al. v. City of Rittman                                                     Page 5


         The plaintiffs in the instant case filed their original state-court complaint on January 4, 1994,
roughly six months prior to the issuance of Levin. The date on which the plaintiffs filed their state-
court complaint is, logically, the latest time at which they could have first known of their injury.
Because there was no “reasonable, certain, and adequate procedure” available to takings claimants
in Ohio state courts prior to the Levin decision, and because the alleged deprivation here occurred
prior to Levin, the plaintiffs’ claim was ripe for federal review already in 1994. And because it was
ripe for review in 1994, it was consequently time-barred when the plaintiffs filed in federal court
in 2000, well past the then two-year statute of limitations for § 1983 takings actions.
        The plaintiffs’ procedural due process claims pertaining to past violations by the City are
similarly time-barred. “Procedural due process and equal protection claims that are ancillary to
taking claims are subject to the same Williamson ripeness requirements . . . .” Arnett, 281 F.3d at
562; see also Bigelow v. Michigan Dep’t of Natural Res., 970 F.2d 154, 159-60 (6th Cir. 1992).
This requires the plaintiffs to show that they had pursued an adequate state measure for obtaining
just compensation before their due process claim would be ripe. Because no adequate measure
existed at the time, however,  the due process claim was ripe concurrent with the takings claim, and
as such it too is barred.2
                                             B. Continuing Violations
         The district court did not consider whether this case might implicate the “continuing
violation” doctrine for purposes of the statute of limitations. “Ordinarily, the limitations period
starts to run when the plaintiff knows or has reason to know of the injury which is the basis of his
action.” Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir. 1997) (internal
quotation marks and citations omitted). The limitations period will not bar all actions for all time,
however, as in certain cases where there is a “continuing violation . . . which inflict[s] continuing
and accumulating harm . . . .” Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502
n.15. (1968) (discussing the government’s continuing violation of a company’s rights under the
Sherman Act). In other words, “[a] law that works an ongoing violation of constitutional rights does
not become immunized from legal challenge for all time merely because no one challenges it within
two years of its enactment.” Kuhnle, 103 F.3d at 522.
        The primary reason why the district court failed to consider the continuing violation issue
is because it was not properly raised before that court. Although we have discretion to rule on an
issue of law even in the absence of its proper development below, see Pinney Dock & Transp. Co.
v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988), we decline to exercise such discretion
here. If we were to do so, we would be ruling on a takings claim not brought before      the state courts
in 1994, nor before the district court in 2000, but before this Court in 2006.3 And such a claim,
brought for the first time in 2006, would not be ripe for our review. See Coles, 448 F.3d at 865.
Because “[t]oday, Ohio has ‘reasonable, certain, and adequate procedures’ for plaintiffs to pursue
compensation for an involuntary taking,” and because “there is no dispute that Plaintiffs have failed
to request mandamus from the state,” plaintiffs’ continuing-violation takings claim is not yet ripe
for review. Id. The proper course is for plaintiffs first to file a mandamus action in state court based
on their continuing-violations theory.


         2
           Although the district court came to the same ultimate result as we do now, it was incorrect for the court to have
conducted a separate ripeness analysis for the due process claim. See D. Ct. Op., Aug. 8, 2002, at 12-14. Rather,
because the procedural due process claim in this case is not independent of the underlying takings claim, ripeness
analysis for the takings claims necessarily subsumes ripeness analysis for the due process claim.
         3
         The issue of continuing violations was first properly raised in the parties’ letter briefs submitted to this Court
in March 2006.
No. 02-3965           McNamara, et al. v. City of Rittman                                     Page 6


        It may seem a bit perverse that one takings claim (past violations) be barred by statute of
limitations because it was delinquently filed in federal court, and yet a similar claim (continuing
violations) be barred by ripeness because it was prematurely filed in federal court. But this is the
nature of federal-state interplay after Williamson, a dance made more awkward when actions, as
here, both pre- and post-date the Ohio Supreme Court’s decision in Levin. This Court’s decision in
Coles, however, has significantly clarified how such cases should be handled in the future. See also
Stewart E. Sterk, The Demise of Federal Takings Litigation, 48 WM. & MARY L. REV. 251, 292-300
(2006) (discussing “Takings Federalism” in the context of the Williamson ripeness requirement, and
noting that if federal courts “were free to hear takings claims in the first instance, their
determinations would not have the benefit of any comparable record with respect to state law”).
        For identical reasons, we decline to consider the plaintiffs’ continuing-violation due process
claim, which is ancillary to the continuing-violation takings claim. See Bigelow, 970 F.2d 154, 160
(“Until the state courts have ruled on the plaintiffs’ inverse condemnation claim, this court cannot
determine whether a taking has occurred, and thus cannot address the procedural due process claim
with a full understanding of the relevant facts.”).
                                                 III
        Based on the discussion above, we AFFIRM the district court’s grant of summary judgment
in favor of the City of Rittman.
