                                                                             FILED
                           NOT FOR PUBLICATION                               NOV 23 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


THUNDERBIRD HOTELS, LLC, an                     No. 10-35025
Oregon limited liability company,
                                                D.C. No. 3:08-cv-01385-JE
             Plaintiff - Appellant,

       v.                                       MEMORANDUM*

CITY OF PORTLAND, a municipal
corporation; SAM ADAMS, in his official
capacity as Commissioner of the City of
Portland,

             Defendants - Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                     Argued and Submitted November 4, 2010
                                Portland, Oregon

Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
        Judge.**




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
      The district court dismissed Thunderbird Hotels’ state and federal takings

claims as not ripe. We affirm.

      1. State law takings claim. Oregon law requires that there be “a final and

authoritative determination of the type and intensity of development legally

permitted on the subject property” before a takings claim is ripe for review. Joyce

v. Multnomah Cnty., 835 P.2d 127, 128 (Or. App. 1992) (quoting MacDonald,

Sommer & Frates v. Yolo Cnty., 447 U.S. 340, 348 (1986)). Thunderbird has not

applied for permission to develop its Hayden Island parcel and has not identified

any City of Portland regulation that currently restricts development. Because the

scope of the alleged restriction on Thunderbird’s development rights is not clear,

Thunderbird’s state-law takings claim is not ripe.

      2. Federal takings claim. Thunderbird has not satisfied either of the

ripeness requirements articulated in Williamson Cnty. Reg’l Planning Comm’n v.

Hamilton Bank, 473 U.S. 172 (1985). First, because Thunderbird has made no

development application, the scope of any restriction the City may have placed on

Thunderbird’s property is unclear. There has thus been no “final decision

regarding the application of the regulations to the property at issue.” Williamson,

473 U.S. at 186. Second, Thunderbird has not given the state “the opportunity to

deny with finality just compensation for [the] alleged taking” in a state judicial or


                                          2
administrative proceeding before bringing a federal takings claim. West Linn

Corp. Park L.L.C. v. City of West Linn, 534 F.3d 1091, 1093 (9th Cir. 2008).

Thunderbird’s appeal of the City’s temporary development moratorium to the

Oregon Land Use Board of Appeals did not present such an opportunity because

Thunderbird did not raise its constitutional claim in that proceeding. The district

court’s dismissal of Thunderbird’s state-law takings claim did not satisfy the

second Williamson requirement either, because the dismissal was without prejudice

and did not reach the merits. Thunderbird’s federal takings claim is therefore not

ripe for review.

      AFFIRMED.




                                          3
