                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1537


TOWN OF NAGS HEAD,

                Plaintiff – Appellee,

           v.

MATTHEW A. TOLOCZKO; LYNN B. TOLOCZKO,

                Defendants – Appellants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever
III, Chief District Judge. (2:11-cv-00001-D)


Argued:   May 17, 2013                     Decided:   August 27, 2013


Before SHEDD, DAVIS, and DIAZ, Circuit Judges.


Reversed and remanded by published opinion.     Judge Diaz wrote
the opinion, in which Judge Shedd and Judge Davis joined.


ARGUED: J. David Breemer, PACIFIC LEGAL     FOUNDATION, Sacramento,
California, for Appellants. Charles         Everett Thompson, II,
THOMPSON & PUREZA, Elizabeth City, North    Carolina, for Appellee.
ON BRIEF: William J. Brian, Jr., Keith      P. Anthony, MORNINGSTAR
LAW GROUP, Morrisville, North Carolina,      for Appellants.  David
R. Pureza, THOMPSON & PUREZA, P.A.,          Elizabeth City, North
Carolina, for Appellee.
DIAZ, Circuit Judge:

       We heard argument in this case in concert with the related

appeal of Sansotta v. Town of Nags Head, ___ F.3d ___, No. 12-

1538, 2013 WL 3827471 (4th Cir. 2013).                           Both suits involve a

slew of federal and state law claims concerning the legality of

efforts by the Town of Nags Head, North Carolina (the “Town”),

to   declare    beachfront          properties          that   encroach      onto   “public

trust lands” a nuisance, and regulate them accordingly.                                    The

district court adjudicated the claims in Sansotta, but concluded

here that it was inappropriate for a “federal court to intervene

in   such     delicate      state-law       matters,”          Town    of   Nags    Head    v.

Toloczko,      863     F.     Supp.    2d     516,       519    (E.D.N.C.     2012),       and

therefore abstained from decision under Burford v. Sun Oil Co.,

319 U.S. 315 (1943).

       Mindful that the abnegation of federal jurisdiction is a

serious      measure     to    be     taken    only       under       “extraordinary       and

narrow” circumstances, Martin v. Stewart, 499 F.3d 360, 370 (4th

Cir. 2007), we conclude that the circumstances of this case do

not merit abstention.            While the claims asserted here do involve

a sensitive area of North Carolina public policy, resolving them

is not sufficiently difficult or disruptive of that policy to

free   the    district        court    from       its    “unflagging        obligation      to

exercise its jurisdiction.”                 In re Mercury Constr. Corp., 656

F.2d   933,    943     (4th    Cir.    1981)      (en     banc)   (internal        quotation

                                              2
marks      omitted).           We    therefore          reverse        the    district       court’s

decision to abstain, and remand for further proceedings.



                                                I.

       The Town of Nags Head is a coastal municipality that has

the Atlantic Ocean as its eastern boundary.                                   Its beaches have

historically           been    used    by     the       public    for     transportation        and

recreational            activities.             These        activities            enjoy      legal

protection        under       the    “public    trust       doctrine,”          which    entitles

states like North Carolina to appropriate title to tidal lands

in trust for the public.                 See Gwathmey v. State Through Dep’t of

Env’t, Health, & Natural Res., 464 S.E.2d 674, 677 (N.C. 1995).

       Various natural indicators can demarcate public trust lands

from       private      property.             Although           the     vagaries       of    beach

topography make it difficult to delineate a fixed boundary, the

Town       and    North       Carolina       both       define     the       relevant    area    as

“seaward of the mean high water mark.” 1                          Town of Nags Head, N.C.,

Code of Ordinances, § 48-7; see also N.C. Gen. Stat. § 77-20(e).

       Historically,            prevailing          environmental             conditions       have

pushed      the    high       tide    line    westward       from       the    Atlantic      Ocean,

resulting         in    erosion       and     the       gradual        migration    of       private


       1
       The mean high water mark is the average of all high tide
elevations measured over a nineteen-year period.



                                                    3
beachfront property into public trust lands.                                To combat this

trend, beachfront owners like Matthew and Lynn Toloczko 2 have

periodically restored displaced sand and have raised the height

of their cottages by sixteen feet to endure tidal surges.                                     In

the event of storm damage, the Toloczkos obtained permits from

the Town to make all necessary repairs.

       A few years ago, however, the Town determined that certain

beachfront       properties        were    beyond         rehabilitation         because    they

were   located       within     public      trust         lands.     The    Town    therefore

resolved to demolish these structures through enforcement of its

Nuisance Ordinance, which regulates “[a]ny structure, regardless

of condition . . . located in whole or in part in a public trust

area       or   public   land.”           Town       of    Nags    Head,    N.C.,    Code     of

Ordinances, § 16-31(6)(c).

       When      a   tropical      storm    inflicted          serious      damage    on    the

Toloczkos’       cottage      in   November          2009,    the    Town       condemned    the

structure and sent the Toloczkos a “Declaration of Nuisance.”

The Town refused to allow the Toloczkos to abate any nuisance by

acquiring a permit to make repairs.                           The Town also began to

assess      daily    fines    to    compel       the       Toloczkos       to   demolish    the

structure.

       2
       The Toloczkos have owned a beachfront cottage in the Town
since 1992.




                                                 4
     The Toloczkos refused to raze their cottage, and the Town

sued them in North Carolina state court, seeking to collect the

assessed civil fines and demolish the cottage.                          The Toloczkos

removed     the   case    to        federal       court   based   on     diversity     of

citizenship.

     After removal, the Toloczkos filed twenty-one counterclaims

alleging violations of state and federal law.                      The bulk of the

counterclaims     sought       related,       if    not   duplicative,     declaratory

judgments that the Town acted unlawfully by enforcing the public

trust doctrine through its Nuisance Ordinance.                          The Toloczkos

also sought injunctive relief and money damages for violations

of state and federal law.

     During the course of the litigation, the Town amended its

Zoning    Ordinance      to    prohibit       any    structure    if    located:     “(1)

Wholly within the wet sand area of the public trust beach area,

i.e. on the state owned property seaward of the mean high water

mark;” or “(2) Wholly or partially within any portion of the

public trust beach area in such a manner that the building or

structure     impedes         the    flow     of     vehicular,        pedestrian,    or

emergency services traffic at normal high tide.”                         Town of Nags

Head, N.C., Code of Ordinances § 48-87.                      The amended ordinance

also forbids the issuance of building and repair permits for

structures located on public trust lands.



                                              5
       In    the    meantime,     a     North    Carolina    beach      replenishment

initiative         added    substantial       sand    seaward    of     the    cottage,

prompting the Town to inform the Toloczkos that it no longer

considered        their    cottage     a   nuisance.       The   Town    subsequently

offered the Toloczkos the opportunity to procure new permits to

repair      the    cottage. 3      To      repair    the   cottage,     however,      the

Toloczkos needed to petition the North Carolina Department of

Environment and Natural Resources (CAMA) for approval to obtain

a local permit to replace their damaged septic tanks.                                CAMA

denied the permit due to the cottage’s location within an “Area

of Environmental Concern” and “comments from the Town of Nags

Head       indicating      that   the      proposal    has   been     deemed    to     be

currently inconsistent with the Code of Ordinances of the Town

of Nags Head.”             J.A. 391.       Accordingly, the parties continued

the litigation.


       3
        We do not think this affects our jurisdiction, as
“voluntary cessation of a challenged practice” moots an action
only if “subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to
recur.”   Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 189 (2000).    Here, the Town maintains that
the cottage resides in the public trust area, and Town Manager
Cliff Ogburn conveyed that he “could . . . still declare--
redeclare [the Toloczkos’] cottage to be a nuisance.” J.A. 180-
81.    Under these conditions it is not clear--certainly not
“absolutely”--that the asserted injury will not recur. In fact,
given Ogburn’s statements, and the fluctuating terrain of the
beachfront, “there is a reasonable expectation that the
[Toloczkos] will be subject to the same action again.” Spencer
v. Kemna, 523 U.S. 1, 17 (1998).


                                             6
       The district court, however, declined to decide the case.

Invoking the Burford doctrine of abstention, the court noted

“the danger of federal interference with unsettled, important

policy      matters   reserved   to   the   states,”   and   determined   that

“land use is an important public policy that lies within the

prerogative of a sovereign state.”           Toloczko, 863 F. Supp. 2d at

525.       Because the dispute involved “profound, unresolved state-

law issues that transcend the case at hand,” id. at 529, the

court exercised its discretion to decline federal jurisdiction. 4

This appeal followed.




       4
        Where--as here--claims for discretionary relief are
removed to federal court and a district court decides to
abstain, the court should “remand” rather than “dismiss” the
claims.   Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731
(1996). Similarly, federal courts may only abstain from claims
for discretionary relief, i.e., declaratory and equitable
actions, while claims for damages may be stayed but not
dismissed or remanded.    See id. at 730.     Here, the district
court stayed the Toloczkos’ 42 U.S.C. § 1983 claim (counterclaim
sixteen), inverse condemnation claim (counterclaim nineteen),
slander of title claim (counterclaim twenty), and negligence
claim (counterclaim twenty-one).       Additionally, the court
dismissed the Toloczkos’ regulatory takings claim (counterclaim
eighteen) on ripeness grounds. The Toloczkos raise no argument
in their opening brief as to their state law claims for slander
of title and negligence, and therefore have waived appellate
review of the district court’s decision to stay those claims.

     As for the Town’s claims in the complaint, the district
court concluded that the Town’s withdrawal of the Nuisance
Declaration mooted the state law abatement actions (counts I and
II).   The district court also stayed the claim to collect the
civil fines (count III).



                                        7
                                      II.

                                       A.

     We review a district court’s decision to abstain for abuse

of discretion, “ever mindful that, although the standard is a

deferential one, the discretion to abstain is tempered by the

truism    that   ‘the    federal   courts     have   a    virtually       unflagging

obligation to exercise their jurisdiction.’”                 MLC Auto., LLC v.

Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008) (internal

quotations omitted).

     The     Burford     abstention    doctrine       relaxes       the    otherwise

“unflagging” mandate of Article III when an adjudication may

undermine the “independence of state action” on issues that are

local and important to a state’s sovereignty.                     Quackenbush, 517

U.S. at 728.        In this way, the doctrine advances federal and

state comity by permitting courts to abstain where “an incorrect

federal decision might embarrass or disrupt significant state

policies.”       Nature Conservancy v. Machipongo Club, Inc., 579

F.2d 873, 875 (4th Cir. 1978) (per curiam).

     Burford involved a Fourteenth Amendment challenge to the

Texas    Railroad   Commission’s      grant    of    an   oil-drilling       permit.

Because Texas had devised an intricate regime of judicial review

that fostered “a specialized knowledge” in a complex and “ever-

changing”    area   of   the   law,   the   Supreme       Court    concluded    that

federal interference would wreak “[d]elay, misunderstanding of

                                       8
local law, and needless federal conflict with the State policy.”

Burford, 319 U.S. at 327.             “Under such circumstances,” the Court

held, “a      sound    respect    for    the      independence       of   state    action

requires the federal equity court to stay its hand.”                               Id. at

334.

       The Supreme Court has since “carefully defined the areas in

which such abstention is permissible,” Martin, 499 F.3d at 363,

specifying two contexts in which the Burford doctrine applies:

       (1) [W]hen there are difficult questions of state law
       bearing on policy problems of substantial public
       import whose importance transcends the result in the
       case then at bar; or (2) where the exercise of federal
       review of the question in a case and in similar cases
       would be disruptive of state efforts to establish a
       coherent   policy  with   respect  to   a  matter   of
       substantial public concern.

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans

(NOPSI), 491 U.S. 350, 361 (1989) (internal quotations omitted).

                                            B.

       We   first     consider    whether        the    district     court   correctly

abstained     from     resolving      the    claims       for   declaratory        relief

(counterclaims one through fifteen, and seventeen) asserted by

the Toloczkos.        The gravamen of these counterclaims concerns the

Town’s      authority    to   ratify        and    enforce      an    ordinance      that

regulates      structures        on     public         trust    lands.        We     have

traditionally viewed questions of state and local land use and

zoning law as the paradigm of Burford abstention, calling them


                                            9
“a   classic       example    of    situations      in    which     the        exercise   of

federal review . . . would be disruptive of state efforts to

establish      a    coherent       policy    with    respect        to     a    matter    of

substantial public concern.”                Pomponio v. Fauquier Cnty. Bd. of

Supervisors,        21   F.3d    1319,      1327   (4th   Cir.      1994)       (en   banc)

(internal      quotations       omitted),        abrogated     in        part    on   other

grounds by Quackenbush, 517 U.S. at 728-31.                       “While zoning and

land use cases do not automatically warrant Burford abstention,”

Wash. Gas Light Co. v. Prince George’s Cnty. Council, 711 F.3d

412, 419 (4th Cir. 2013), our precedent demonstrates that these

cases characteristically meet the Burford abstention criteria. 5

      The instant case would seem to fit the trend, as the litany

of state and federal law counterclaims lodged by the Toloczkos

appear    to   invite     a     federal     court   to    decide         (1)    the   legal

authority of the Town to enforce North Carolina’s public trust

      5
       See id. (Maryland “mandatory referral statute” governing
public utilities compliance with municipal zoning laws); MLC
Auto., 532 F.3d at 283 (claim that town rezoning violated vested
rights and constitutional due process); Pomponio, 21 F.3d at
1320-21 (challenge to application of local zoning ordinance);
Palumbo v. Waste Tech. Indus., 989 F.2d 156, 159-60 (4th Cir.
1993) (challenge to local waste management permitting scheme);
Front Royal & Warren Cnty. Indus. Park Corp. v. Town of Front
Royal, 945 F.2d 760, 763-64 (4th Cir. 1991) (annexation and
sewer services); Browning-Ferris, Inc. v. Balt. Cnty., 774 F.2d
77, 79 (4th Cir. 1985) (complex state regulations governing
landfill operations); Caleb Stowe Assocs., Ltd. v. Cnty. of
Albemarle, Va., 724 F.2d 1079, 1080 (4th Cir. 1984) (challenge
to   “authority  of  local   planning  bodies   and  Boards   of
Supervisors”).



                                            10
doctrine through its Nuisance Ordinance, and (2) whether the

Toloczkos’ cottage is subject to that ordinance.                 Both questions

risk an “interference with the State’s or locality’s land use

policy,” Pomponio, 21 F.3d at 1328, which might “disrupt the

State’s   attempt    to    ensure   uniformity     in    the   treatment    of   an

essentially local problem,” NOPSI, 491 U.S. at 362 (internal

quotations omitted).         This is especially true for the claims

that request a determination that the cottage is not located in

the public trust area, 6 as it would obviously offend federalism

and comity for a federal court to physically delimit the metes

and bounds of a state’s sovereign lands.                  See Idaho v. Coeur

d’Alene   Tribe     of    Idaho,    521    U.S.   261,   283    (1997)     (“State

ownership of [submerged lands] has been considered an essential

attribute of sovereignty.”).

     If this were the end of the matter, we would not hesitate

to affirm the district court’s abstention under Burford.                         But


     6
       In this task, a court would have no guidance. The scope
of the public trust common law doctrine remains the exclusive
province of the North Carolina courts to define, see N.C. Gen.
Stat. § 77-20(d) (“These public trust rights in the ocean
beaches are established in the common law as interpreted and
applied by the courts of this State.”), and they have
consistently declined the opportunity to do so in the context of
beachfront property. See Cooper v. United States, 779 F. Supp.
833, 835 (E.D.N.C. 1991) (“The extent to which the public trust
doctrine applies to dry sand property in North Carolina is an
unsettled question.”); Concerned Citizens of Brunswick Cnty.
Taxpayers Ass’n v. State ex rel. Rhodes, 404 S.E.2d 677, 688
(N.C. 1991).


                                          11
here    the    district      court     is    not     required     to     sail    into    these

uncharted waters because North Carolina law is clear that the

Town has no authority to enforce the public trust doctrine in

the first place.             See Town of Nags Head v. Cherry, Inc., 723

S.E.2d 156, 161 (N.C. Ct. App.), disc. review denied, 733 S.E.2d

85, 85-86 (N.C. 2012); Fabrikant v. Currituck Cnty., 621 S.E.2d

19,    27     (N.C.    Ct.   App.    2005);         Neuse   River        Found.,      Inc.    v.

Smithfield Foods, Inc., 574 S.E.2d 48, 54 (N.C. Ct. App. 2002),

disc. review denied, 577 S.E.2d 628 (N.C. 2003).

       In Cherry, a case nearly identical to ours, the Town filed

a     state    court       abatement        action     claiming        that      a    physical

structure occupied public trust lands, and therefore was subject

to its Nuisance Ordinance.                  723 S.E.2d at 157-59.               The Court of

Appeals       of   North     Carolina        dismissed      the    suit       for     lack    of

standing,       holding      that    “only     the     State,      acting       through      the

Attorney General, has standing to bring an action to enforce the

State’s public trust rights.”                 Id. at 161.

       In light of this clear statement of North Carolina law, the

instant counterclaims           neither        present      “difficult        questions       of

state    law”      regarding    North        Carolina       public       trust       lands   nor

“disrupt[] . . . state           efforts       to    establish       a    coherent      policy

with respect” to this important policy.                      NOPSI, 491 U.S. at 361.

As to the first point, the Town’s lack of standing to enforce

the    public      trust     doctrine       obviates     any      difficult          state   law

                                              12
questions.       The district court recognized this principle, but

stated that the “issue was far from settled” and that it was

“not prepared to say whether the North Carolina Court of Appeals

accurately has predicted how the Supreme Court of North Carolina

would (or will) rule on the issues in controversy in Cherry.”

Toloczko, 863 F. Supp. 2d at 528 n.6.

     At this juncture, however, we are prepared to make such a

statement    given     that    the    Supreme     Court       of   North    Carolina

declined     discretionary      review       during     the    pendency     of    this

appeal, see Cherry, 733 S.E.2d at 85-86, as it did the first

time it had the opportunity to decide which entities have legal

standing    to   press     public    trust    rights,    see    Neuse    River,   577

S.E.2d at 628.

     Because “North Carolina currently has no mechanism for us

to certify questions of state law to its Supreme Court,”                           MLC

Auto., 532 F.3d at 284, we (and the district court) must “follow

the decision of an intermediate state appellate court unless

there is ‘persuasive data’ that the highest court would decide

differently.”        United States v. Little, 52 F.3d 495, 498 (4th

Cir. 1995) (internal quotations omitted).                      Given the Supreme

Court of North Carolina’s decision not to review Cherry, the

district     court    no    longer     has    cause     to     abstain     over   the

counterclaims that depend on the Town’s authority to enforce

section 16-31(6)(c) of the Nuisance Ordinance.

                                         13
       Nor    would     deciding      this   case      in    federal     court   disrupt

“state efforts to establish a coherent policy with respect to a

matter of substantial public concern.”                      NOPSI, 491 U.S. at 361.

Here it is the Town, not the federal courts, that has interfered

with North         Carolina’s    governance       of   public      trust    lands.     In

fact, as Cherry explained, “it is entirely reasonable to grant

[the] power [to enforce the public trust doctrine] to the State

only, in order to minimize conflicts between municipalities or

other local governments and the state agencies which have been

granted      the    responsibility      of    managing       and   protecting     public

trust rights.”          Cherry, 723 S.E.2d at 161 (internal quotations

omitted).      Because North Carolina law already bars the Town from

enforcing     its     Nuisance     Ordinance      on   the    facts     before   us,   no

principle of abstention should preclude a federal court from

saying so.

       We will not call the district court’s decision an abuse of

discretion because the controlling state law, which had not been

established at the time of the abstention, “is now clear and

certain.”          Martin, 499 F.3d at 366.             It suffices to say that

because the balance of federal and state interests has changed

with    intermediate        developments          in    state       court    precedent,

“continued         abstention    at   this    point     would      be   inappropriate.”

Front Royal, 135 F.3d at 283.



                                             14
                                          C.

       We    next   address     whether        the   district     court    properly

abstained from deciding the Toloczkos’ claim under 42 U.S.C.

§ 1983      alleging   due    process    and     equal    protection      violations

(counterclaim sixteen).           We conclude that the district court

need not abstain.            While this constitutional claim intersects

with the Town’s land use and zoning laws, it is not merely

“state law in federal law clothing.”                 Johnson v. Collins Entm’t

Co., 199 F.3d 710, 721 (4th Cir. 1999).                   We also agree with the

Toloczkos that a court need not define the geographical reach of

the public trust doctrine to resolve their constitutional claim.

In   fact,    the   district     court    decided        an   analogous    claim    in

Sansotta without offense to North Carolina’s land use or zoning

law.    We are confident the court can do the same here.



                                         III.

       Finally, we review the district court’s dismissal of the

Toloczkos’ regulatory takings claim and its decision to stay the

inverse       condemnation       claim         (counterclaims      eighteen        and

nineteen).       The Toloczkos allege here that the Town stripped

their property of all viable economic use by declaring their

cottage a nuisance and forbidding the issuance of any permits to

repair the structure.



                                          15
       The Fifth Amendment forbids the taking of private property

“for public use, without just compensation.”                 U.S. Const. amend.

V.     The Takings Clause applies to the states, see Chicago, B &

Q.R. Co. v. Chicago, 166 U.S. 226 (1897), and to takings in the

form    of    government    regulations        that    effectively      deprive      a

property of all economic value, see Henry v. Jefferson Cnty.

Comm’n, 637 F.3d 269, 276 (4th Cir. 2011).                    “It is also clear

that temporary, but total, regulatory takings are compensable.”

Front Royal, 135 F.3d at 285.

       However, where “a State provides an adequate procedure for

seeking just compensation, the property owner cannot claim a

violation of the Just Compensation Clause until it has used the

procedure and been denied just compensation.”                  Williamson Cnty.

Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.

172, 195 (1985).          The district court dismissed the regulatory

takings claim as unripe under this state-litigation requirement,

as    the    Toloczkos    failed    to   obtain       an   inverse    condemnation

adjudication--the        relevant    state     law     remedy--in     state    court

before removal to federal court.

       The Williamson County ripeness doctrine “does not preclude

state courts from hearing simultaneously a plaintiff’s request

for    compensation      under   state   law    and    a   claim     that,    in   the

alternative, the denial of compensation would violate the Fifth

Amendment of the Federal Constitution.”                San Remo Hotel, L.P. v.

                                         16
City & Cnty. of S.F., Cal., 545 U.S. 323, 346 (2005).                             But to

satisfy Williamson County, plaintiffs must not only file a state

law inverse condemnation claim--they must also be “denied just

compensation” through a final adjudication in state court.                            473

U.S. at 195.

        In    this    case,    the     Toloczkos        removed    their    regulatory

takings claim to federal court before a North Carolina court

could grant or deny a correlative state-law remedy.                             Unlike in

Sansotta, ___ F.3d ___, slip op. at 21, where we held that the

Town    waived       the   state-litigation       requirement       by    removing     the

case to federal court, here the Toloczkos preempted their own

state    law     remedy.       Where    a   plaintiff’s        failure     to     satisfy

Williamson County results from their own litigation strategy,

rather than the defendant’s “procedural gamesmanship” or forum

manipulation, id. at 29, Sansotta’s waiver principle does not

apply.

        But   “[b]ecause      Williamson     County       is   a   prudential      rather

than    a     jurisdictional     rule,      we    may    determine       that    in   some

instances, the rule should not apply and we still have the power

to decide the case.”          Id. at 24.         Exercise of such discretion may

be particularly appropriate to avoid “piecemeal litigation or

otherwise unfair procedures.”               San Remo Hotel, 545 U.S. at 346

(internal quotations omitted).



                                            17
     This is a proper case to exercise our discretion to suspend

the state-litigation requirement of Williamson County.                  In the

interests of fairness and judicial economy, we will not impose

further rounds of litigation on the Toloczkos.                  We therefore

remand   both   the   federal   and    state   law   takings    claim   to   the

district court.



                                      IV.

     For the foregoing reasons, we reverse the district court’s

decision   to     abstain   and       remand   for    further     proceedings

consistent with this opinion.

                                                      REVERSED AND REMANDED




                                       18
