
USCA1 Opinion

	




          July 29, 1993         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1234                                            WENDELL E. TUCKER, ET AL.,                                 Plaintiffs, Appellants,                                          v.                                 TOWN OF WINTERPORT,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Charles W. Hodsdon, II, on brief for appellants.               ______________________               Richard D. Violette, Jr., on brief for appellee.               _______________________                                  __________________                                  __________________                      Per  Curiam.    The  appellants  are  residents  of                      ___________            Winterport, Maine.  All own property near a site on which the            Town  of Winterport  stored  salt and  sand  to be  used  for            highway snow removal.  According to the appellants, salt  and            other contaminants from the  pile polluted their  properties,            damaging their plumbing and making their well water unfit for            consumption by people or animals.                 The  appellants sued  the  Town and  the contractor  who            maintained  the pile  of  salt and  sand.   They  filed  this            lawsuit in a  state court, alleging  violations of the  Maine            Tort Claims Act,  14 M.R.S.A.   8101 et seq.   The appellants            later amended  their complaint  to include  a claim  under 42            U.S.C.   1983, on  the basis of which the  defendants removed            the  lawsuit to federal court.  The defendants then moved for            summary judgment  on the Section  1983 claim.   A magistrate-            judge  recommended giving summary  judgment to the defendants            and  the  district court  accepted  the  recommendation.   It            granted judgment to the defendants on the Section 1983 claim,            and remanded the  outstanding state law  claims to the  state            court.    This  appeal  followed.   Finding  no  "substantial            question"  about  the  correctness of  the  district  court's            decision, we summarily affirm.  See First Circuit Local  Rule                                            ___            27.1.                 The magistrate-judge's recommended decision was based on            his understanding  that the  appellants'  Section 1983  claim                                         -2-            alleged a  "taking of their property  without compensation in            violation of  the  Fifth Amendment."    The  magistrate-judge            reasoned  that the  salt pollution  at issue  here was  not a            "taking"  because it  only  diminished, but  did not  totally            destroy,  the value  of  the appellants'  land.   See  Ortega                                                              ___  ______            Cabrera v.  Municipality of Bayamon,  562 F.2d  91, 101  (1st            _______     _______________________            Cir.  1977).   The  district judge  apparently accepted  this            reasoning.                 We affirm the grant of summary judgment without reaching            this  issue because we find  that, whether or  not a "taking"            has  occurred, the appellants' Section 1983 claim is not ripe            for adjudication.   "The  Fifth Amendment does  not proscribe            the  taking of  property; it  proscribes taking  without just            compensation."  Williamson County Regional Planning Comm'n v.                            __________________________________________            Hamilton Bank, 473 U.S. 172, 194 (1985).  If state  law makes            _____________            "reasonable,  certain and adequate"  provision for  relief, a            "property  owner  cannot  claim   a  violation  of  the  Just            Compensation Clause  until it has used the procedure and been            denied just compensation."  Id. at 194-95.                                        ___                 Nothing  in the record  here gives us  reason to believe            that the  appellants have yet  resorted to state  process and            failed to obtain just compensation.  Nor have the  appellants            shown us  that the  state's procedures  are inadequate.   See                                                                      ___            Gilbert v. City of Cambridge, 932 F.2d 51, 65 (1st Cir. 1991)            _______    _________________            (property owner who  claims a taking in federal court without                                         -3-            first exhausting state remedies has the burden of proving the            inadequacy of  those remedies).  The  appellants' own amended            complaint suggests that they hold  out hope of recovery under            the Maine Tort Claims Act.  We note, too, that although Maine            does not  have a  statutory inverse condemnation  remedy, see                                                                      ___            Lerman  v. City  of  Portland, 675  F.Supp. 11,  15-16 (D.Me.            ______     __________________            1987), the Maine  Supreme Judicial  Court -- in  a case  that            also involved pollution caused by salt used  for highway snow            removal --  has created  a nonstatutory  right  of action  on            behalf of property  owners subjected  to a taking.   Foss  v.                                                                 ____            Maine Turnpike  Authority, 309  A.2d 339, 343-45  (Me. 1973).            _________________________            We  have  held  that a  property  owner  must  pursue such  a            nonstatutory remedy before he  can maintain a federal damages            claim under the Fifth  Amendment.  Culebras Enterprises Corp.                                               __________________________            v. Rivera Rios, 813 F.2d 506, 515 (1st Cir. 1987).               ___________                 To sum  up, because the plaintiffs  have neither availed            themselves   of   state   procedures   for   obtaining   just            compensation,  nor   demonstrated  the  inadequacy   of  such            procedures, their  takings claim  is unripe and  was properly            dismissed.                 Affirmed.                 ________                                         -4-
