                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL M. TURNACLIFF, in his             
capacity as Administrator for the
Estate of Kathleen M. Dodd, with
will annexed,
                  Plaintiff-Appellant,
                                                 No. 07-15287
                  v.
STEVE WESTLY, in his individual &                 D.C. No.
                                                CV-05-05303-SI
official capacity as State
                                                  OPINION
Controller of the State of
California, and in his custodial
capacity as Administrator of the
Unclaimed Property Fund,
                Defendant-Appellee.
                                          
        Appeal from the United States District Court
           for the Northern District of California
       Susan Yvonne Illston, District Judge, Presiding

                   Argued and Submitted
         August 12, 2008—San Francisco, California

                     Filed October 15, 2008

  Before: David R. Thompson and Kim McLane Wardlaw,
   Circuit Judges, and Susan R. Bolton,* District Judge.

                  Opinion by Judge Thompson



  *The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.

                               14549
                   TURNACLIFF v. WESTLY               14551


                        COUNSEL

David B. Tillotson & John A. Lofton, San Francisco, Califor-
nia, for the plaintiff-appellant.

Edmund G. Brown, Jr., Christopher E. Krueger, Douglas J.
Woods, and Zackery P. Morazzini, Sacramento, California,
for the defendant-appellee.
14552                TURNACLIFF v. WESTLY
                          OPINION

Judge THOMPSON, Senior Circuit Judge:

   Plaintiff-Appellant Michael M. Turnacliff (Turnacliff), in
his capacity as administrator of the Estate of Kathleen M.
Dodd (the Estate), appeals the district court’s summary judg-
ment in favor of defendant Steve Westly, in his individual and
official capacity as State Controller of the State of California,
and his custodial capacity as administrator of the Unclaimed
Property Fund (Controller). Turnacliff alleged that the Con-
troller improperly calculated the interest due to the Estate for
the time that the State of California held the Estate’s
unclaimed property.

   Turnacliff contends that, when the Controller returned the
previously unclaimed property to the Estate, with interest, the
Controller incorrectly construed California Code of Civil Pro-
cedure § 1540(c) (amended 2002) by applying a single,
statutorily-defined interest rate to the principal for the years
that California held the property. Turnacliff maintains that the
Controller should have applied an average of various interest
rates that California earned while holding the property. He
also contends that, if the Controller’s construction and appli-
cation of § 1540(c) was correct, then the Controller’s action
ran afoul of the Takings Clause of the Fifth Amendment,
because he did not pay to the Estate the actual interest that the
unclaimed property earned while California held it.

   Turnacliff further argues, for the first time on appeal, that
the Controller violated the Takings Clause by failing to pro-
vide adequate notice to the Estate before acquiring the aban-
doned property. Exercising our discretion, we decline to
consider this argument.

   We have jurisdiction under 28 U.S.C. § 1291, and affirm
the district court’s summary judgment in favor of the Control-
ler. The Controller correctly construed and applied § 1540(c).
                           TURNACLIFF v. WESTLY                    14553
And, even if the facts of this case were to implicate the Tak-
ings Clause, Turnacliff has failed to show that the Estate is
entitled to additional compensation.

I.       Statutory Framework

  In Suever v. Connell, 439 F.3d 1142 (9th Cir. 2006), we
explained:

         Title 10 of the California Code of Civil Procedure
         deals with unclaimed property located in California.
         Cal. Civ. Proc. Code § 1300, et seq. “It is the pur-
         pose of this title to provide for the receipt, custody,
         investment, management, disposal, escheat and per-
         manent escheat of various classes of unclaimed
         property . . . .” Id. § 1305 . . . . “ ‘Escheat’ . . . means
         the vesting in the state of title to property the where-
         abouts of whose owner is unknown or whose owner
         is unknown, . . . subject to the right of claimants to
         appear and claim the escheated property . . . .” Id.
         § 1300(c) . . . .

Suever, 439 F.3d at 1144 (internal brackets and footnotes
omitted).

   At the time that the Controller received the Estate’s claim
for the property, and returned it, California Code of Civil Pro-
cedure § 1540(c) provided:1

         The Controller shall add interest at the rate of 5 per-
         cent or the bond equivalent rate of 13-week United
         States Treasury bills, whichever is lower, to the
         amount of any claim paid the owner under this sec-
         tion for the period the property was on deposit in the
         Unclaimed Property Fund. No interest shall be pay-
     1
   Since August 11, 2003, § 1540(c) has provided “No interest shall be
payable on any claim paid under this chapter.”
14554                 TURNACLIFF v. WESTLY
      able for any period prior to January 1, 1977. Any
      interest required to be paid by the state pursuant to
      this section shall be computed as simple interest, not
      compound interest. For purposes of this section, the
      bond equivalent rate of 13-week United States Trea-
      sury bills shall be defined in accordance with the fol-
      lowing criteria:

      (1) The bond equivalent rate of 13-week United
      States Treasury bills established at the first auction
      held during the month of January shall apply for the
      following July 1 to December 31, inclusive.

      (2) The bond equivalent rate of 13-week United
      States Treasury bills established at the first auction
      held during the month of July shall apply for the fol-
      lowing January 1 to June 30, inclusive.

   Proceeds from the sale of escheated property are deposited
in the Unclaimed Property Fund in an Abandoned Property
Account. Id. § 1564(a). On at least a monthly basis, the Con-
troller is required to transfer to California’s General Fund all
money in the Abandoned Property Account in excess of fifty
thousand dollars. Id. § 1564(c).

   Citing California Government Code §§ 16470 and 16480.1,
Turnacliff contends that “surplus” money in the General Fund
is placed in a Pooled Money Investment Account (PMIA),
where it earns interest at the rate of the PMIA yield. The Con-
troller does not dispute this assertion.

II.   Background

  On November 15, 1958, Kathleen M. Dodd died.

   In January 1979, Echlin, Inc. sent a cash dividend of more
than $3100 to Ms. Dodd. That dividend was returned to
Echlin by the United States Postal Service. Over the next
                    TURNACLIFF v. WESTLY                 14555
eleven years, Echlin sent Ms. Dodd at her address of record
dozens of cash dividends, ranging from $3100 to $8000. None
of the dividend checks were ever cashed, and most were
returned by the Postal Service.

   On June 29, 1990, the Controller received 57,600 shares of
Echlin stock that had belonged to the late Ms. Dodd. While
the shares were held by the Controller, they earned dividends
in excess of $347,000. The Controller sold the stock on June
17, 1993, for more than $1,513,000. By June 1993, the Con-
troller held property in excess of $1,860,000 belonging to the
Estate. In May 2003, the Estate filed a claim with the Control-
ler for the return of its property.

   On June 24, 2003, the Controller issued a check to the
Estate for roughly $1,983,000, which purportedly represented
the principal plus simple interest at a rate of 1.69%. The fig-
ure of 1.69% was reached by referring to the interest rate of
13-week United States Treasury bills established at the first
auction of July 2002.

   The interest was incorrectly calculated, however, and on
January 21, 2005, the Controller paid another $201,000 to the
Estate. The parties agree that after this payment, the Control-
ler had paid in full the 1.69% simple interest on the principal
of the previously unclaimed property. But the Estate dis-
agreed with the Controller that 1.69% was the correct interest
rate that should have applied.

   On December 21, 2005, Turnacliff filed this action alleging
the Controller incorrectly applied California Code of Civil
Procedure § 1540(c), violated the Takings Clause by paying
to the Estate less than the amount of interest actually earned
by the unclaimed property, violated the Estate’s procedural
due process by retroactively applying the 2002 version of
§ 1540(c) to the pre-2002 years that California held the
unclaimed property, and breached its fiduciary duty to the
Estate under the law of the State of California.
14556                    TURNACLIFF v. WESTLY
   The district court granted the Controller’s motion for sum-
mary judgment and denied Turnacliff’s motion for summary
judgment, holding that the Controller’s interpretation of
§ 1540(c) — applying a single rate for the time that the princi-
pal of the unclaimed property was held by California — was
correct, and that this interpretation raised no constitutional
problems. This appeal followed.2

III.    Discussion

A.     California Code of Civil Procedure § 1540(c)

   Turnacliff contends that California Code of Civil Procedure
§ 1540(c) required the Controller to add interest to the
Estate’s unclaimed property at a rate of the average of the 13-
week bond equivalent rates of United States Treasury bills
established — according to the statute — at the first auctions
in January and July of each year over the time the Controller
held the assets. This interpretation of the statute, Turnacliff
maintains, results in a “reasonable approximation of interest
actually earned.” According to Turnacliff’s calculations, the
Controller should have paid interest at a rate of 4.5%.

   The Controller argues that the plain language of § 1540(c)
required him to apply a single interest rate. And, in this case,
the applicable rate was 1.69%.

  [1] Because we are interpreting a California statute, we
apply California’s rules of statutory construction. See In re
First T.D. & Inv., Inc., 253 F.3d 520, 527 (9th Cir. 2001). In
  2
    Turnacliff does not appeal summary judgment on his claim that the
Controller violated the Estate’s procedural due process rights. As for his
claim that the Controller breached his fiduciary duty to the Estate, Turna-
cliff refers to “the basic tenets of trust law” in his opening brief, but only
in developing his Takings Clause argument. Turnacliff offers no argu-
ment, and presents no authority, on the issue of the Controller’s fiduciary
duty to the Estate. Accordingly, we deem this issue abandoned. See Col-
lins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988).
                     TURNACLIFF v. WESTLY                  14557
this regard, we have previously noted that “[t]he California
Supreme Court has declared that the ‘ultimate task’ in statu-
tory interpretation ‘is to ascertain the legislature’s intent.’ ”
Id. (quoting People v. Massie, 19 Cal. 4th 550, 569, 79 Cal.
Rptr. 2d 816, 967 P.2d 29, 41 (1998)). “ ‘Ordinarily, the
words of the statute provide the most reliable indication of
legislative intent.’ ” In re First T.D. & Inv., 253 F.3d at 527
(quoting Pac. Gas & Elec. Co. v. County of Stanislaus, 16
Cal. 4th 1143, 1152, 69 Cal. Rptr. 2d 329, 947 P.2d 291, 297
(1997)). “Courts should give the language of the statute ‘its
usual, ordinary import and accord significance, if possible, to
every word, phrase and sentence in pursuance of the legisla-
tive purpose.’ ” In re First T.D. & Inv., 253 F.3d at 527 (quot-
ing Dyna-Med, Inc. v. Fair Employment & Hous. Comm’n, 43
Cal. 3d 1379, 1386-87, 241 Cal. Rptr. 67, 743 P.2d 1323,
1326 (1987)).

   [2] California Code of Civil Procedure § 1540(c) provides:
“The Controller shall add interest at the rate of 5 percent or
the bond equivalent rate of 13-week United States Treasury
bills, whichever is lower, to the amount of any claim paid the
owner under this section for the period the property was on
deposit . . . .” (emphasis added).

   [3] We agree with the district court that the Controller’s
construction of § 1540(c) was correct. The statute requires the
Controller to add interest at a “rate,” in the singular, not plu-
ral, “for the period the property was on deposit.” The plain
language of the statute supports the Controller’s construction
that a single interest rate must be applied for the whole time
period that unclaimed property was held.

   Turnacliff’s construction would change the text of the stat-
ute, and its ordinary import, by inserting the word “average”
between the words “the” and “rate” in the first clause of the
above-quoted portion of the statute as it existed during the
applicable period. We see no reason why the California Legis-
lature would not have included the word “average” in the stat-
14558                TURNACLIFF v. WESTLY
ute if indeed it had intended to require the Controller to
average the statutorily-defined interest rates and apply the
average interest rate to the principal of unclaimed property.

B.   The Takings Clause

   Turnacliff also argues that if the Controller’s construction
of California Code of Civil Procedure § 1540(c) was correct,
then the Controller violated the Takings Clause of the Fifth
Amendment by failing to pay “just compensation” for taking
the Estate’s property. Turnacliff contends that, under the tra-
ditional common law rule that “interest follows the principal,”
any and all interest that the unclaimed property earned while
held by California belongs to the Estate. Turnacliff further
maintains that, to the extent that the property did not earn
actual interest, the Estate is entitled to constructive interest.
We disagree.

   [4] Pursuant to the Takings Clause of the Fifth Amend-
ment, “private property [shall not] be taken for public use,
without just compensation.” U.S. Const. amend. V. “In order
to state a claim under the Takings Clause, a plaintiff must first
demonstrate that he possesses a ‘property interest’ that is con-
stitutionally protected.” Schneider v. Cal. Dep’t of Corr., 151
F.3d 1194, 1198 (9th Cir. 1998). “Only if he does indeed pos-
sess such an interest will a reviewing court proceed to deter-
mine whether the expropriation of that interest constitutes a
‘taking’ within the meaning of the Fifth Amendment.” Id.
Depending on the facts of a case, a court will answer the
question whether a “taking” has occurred by utilizing either
a “per se” or an “ad hoc” analysis. See Brown v. Legal Found.
of Wash., 538 U.S. 216, 233-35 (2003). Finally, if a “taking”
has indeed occurred, a court must determine whether the
property owner has received “just compensation.” Id. at 235
(“The Fifth Amendment does not proscribe the taking of
property; it proscribes taking without just compensation.”)
(quotation marks and citation omitted). The “just compensa-
tion” required by the Fifth Amendment “is measured by the
                          TURNACLIFF v. WESTLY                         14559
property owner’s loss rather than the government’s gain.” Id.
at 235-36.

  [5] Assuming, arguendo, that the Estate had a cognizable
property right to interest earned by its escheated property,3
and that this property was “taken” by California, no further
compensation is due to the Estate because when the Estate
abandoned its property, it forfeited any right to interest earned
by that property.

   [6] The Estate does not challenge the fundamental preroga-
tive of the State to acquire and hold abandoned property. And,
before the district court, the Estate did not challenge the
escheat, per se, of its property to the State. Implicitly, there-
fore, the Estate admitted that the property properly escheated
to the State because it sat abandoned for many years.

   In Texaco, Inc. v. Short, 454 U.S. 516, 526, the Court
explained that “[f]rom an early time, th[e] Court has recog-
nized that States have the power to permit unused or aban-
doned interests in property to revert to another after the
passage of time.” The Court further explained that owners of
abandoned property were not owed compensation:
   3
     In Schneider, we held, despite a state statute to the contrary, that pris-
oners possess a constitutionally cognizable property right in the interest
earned on the principal held in Inmate Trust Accounts. 151 F.3d at 1201.
We explained that, though states may “create constitutionally protected
‘new property’ interests,” they cannot “roll back or eliminate traditional
‘old property’ rights” found within the “core of constitutionally protected
property.” Id. at 1200-01 (emphasis removed). That “core,” we continued,
“is defined by reference to traditional ‘background principles’ of property
law.” Id. at 1201. “The ‘interest follows principal’ rule’s common law
pedigree, and near-universal endorsement by American courts — includ-
ing California’s” left us with “little doubt that interest income of the sort
at issue” in Schneider was “sufficiently fundamental that States may not
appropriate it without implicating the Takings Clause.” Id. at 1201 (cita-
tions omitted). By contrast, we are unaware of, and Turnacliff has not pro-
vided us, any authority for the proposition that interest earned by
unclaimed or abandoned property belongs to the property owner.
14560                    TURNACLIFF v. WESTLY
      In ruling that private property may be deemed to be
      abandoned and to lapse upon the failure of its owner
      to take reasonable actions imposed by law, this
      Court has never required the State to compensate the
      owner for the consequences of his own neglect . . . .
      It is the owner’s failure to make any use of the prop-
      erty — and not the action of the State — that causes
      the lapse of the property right[.]

Id. at 530.

   [7] Though Short concerned abandoned mineral interests,
the long-running principle articulated in that case applies with
equal force to this case involving commercial paper. To the
extent that it was even entitled to it, the Estate has received
“just compensation,” because California returned the Estate’s
abandoned property, with statutorily-determined interest of
1.69%. The Estate has no Fifth Amendment right to “actual”
or “constructive” interest earned by its property while held by
the State; California need not further compensate the Estate
for the consequences of the Estate’s neglect.

  The cases that Turnacliff cites for the proposition that the
Estate is owed actual or constructive interest are distinguish-
able, because in none of them was the property owner negli-
gent in handling his or her property.4

C.    Notice

  For the first time on appeal, Turnacliff argues that the
Estate was not afforded adequate procedural due process
before its property was taken.

      We will review an issue that has been raised for the
  4
   Because we do not inquire into the interest earned by the property, we
deny as irrelevant Turnacliff’s request for judicial notice of United States
Department of Treasury records.
                          TURNACLIFF v. WESTLY                           14561
     first time on appeal under certain narrow circum-
     stances: (1) to prevent a miscarriage of justice; (2)
     when a change in law raises a new issue while an
     appeal is pending; and (3) when the issue is purely
     one of law. The decision to consider an issue not
     raised below is discretionary, and such an issue
     should not be decided if it would prejudice the other
     party.

MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086
(9th Cir. 2006) (internal quotation marks and citations omit-
ted).

   We decline to consider this new issue on appeal. None of
the three narrow circumstances which must exist for us to
consider an issue raised for the first time on appeal is present
in this case. Primarily, Turnacliff’s due process challenge is
not a pure question of law, but rather depends on a determina-
tion of facts not in the record.5 Further, we reject the argument
that Taylor v. Westly, 488 F.3d 1197 (9th Cir. 2007), changed
the law in a way that created a new issue on appeal. Turnacliff
could easily have made a procedural due process argument in
the lower court prior to our decision in that case. And finally,
in light of the above, we perceive no miscarriage that would
result from our restraint. Accordingly we exercise our discre-
tion not to review Turnacliff’s due process claim that he raises
for the first time in this appeal.
    5
      We deny Turnacliff’s request that we take judicial notice of a declara-
tion — of a former employee in the Controller’s office — filed in a differ-
ent action. Rule 201(b) of the Federal Rules of Evidence provides that: “A
judicially noticed fact must be one not subject to reasonable dispute in that
it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” The facts
described in the declaration (regarding the manner in which the Controller
provided notice to property owners) are not “generally known;” and the
former employee is not a source “whose accuracy cannot reasonably be
questioned.”
14562                TURNACLIFF v. WESTLY
IV.     Conclusion

   We conclude that the Controller correctly construed Cali-
fornia Code of Civil Procedure § 1540(c) and did not violate
the Takings Clause when he returned the Estate’s previously
abandoned property with statutorily-determined interest of
1.69%. The district court properly granted summary judgment
in favor of the defendant-appellee.

  AFFIRMED.
