                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAY 27 1999
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    B. WILLIS, C.P.A., INC.,

               Plaintiff-Appellant,

    v.                                                 No. 97-5107
                                                  (D.C. No. 96-CV-59-E)
    PUBLIC SERVICE COMPANY OF                          (N.D. Okla.)
    OKLAHOMA, an Oklahoma
    corporation; BURLINGTON
    NORTHERN AND SANTA FE
    RAILWAY COMPANY, a foreign
    corporation,

               Defendants-Appellees.




                           ORDER AND JUDGMENT *


Before TACHA and BALDOCK, Circuit Judges, and GREENE, ** Senior District
Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable J. Thomas Greene, Senior District Judge, United States District
Court for the District of Utah, sitting by designation.
       The panel previously abated this appeal in deference to related state court

eminent domain proceedings which might have obviated or perhaps clarified some

of the issues raised in the case. However, timely resolution of the state action has

not ensued. After making its way through the Oklahoma appellate courts, that

proceeding is now back in the trial court awaiting redetermination.

       Upon further review of the record on appeal, the briefs, and the parties’

subsequent submissions, the panel concludes that proper grounds for immediate

disposition of the appeal are present but have been obscured by the presence of

many overlapping/redundant claims which are not ripe for adjudication. For

reasons explained below, we affirm the decision of the district court, though we

clarify that the dismissal of the bulk of this case, which is dictated by

constitutional constraints on subject matter jurisdiction, is without prejudice.


                                       Background

       Oklahoma’s statutory scheme for eminent domain, Okla. Stat. Ann. tit 66,

§§ 51-66, authorizes railroad corporations (and utilities,   see Okla. Stat. Ann.

tit 27, § 7) to take real property by condemnation. The procedure may be outlined

in pertinent part by the following steps: (1) the condemnor corporation applies to

the district judge, with notice to the landowner, for selection of a three-person

commission; (2) the commissioners inspect the property, assess just compensation

for the injury involved, and file a report with the clerk of the court, which is

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promptly forwarded to interested parties; (3) if the condemnor pays the assessed

sum, it may take immediate possession consistent with its proposed use, though

all parties retain the right to challenge the commission’s report; (4) review may be

sought in the district court by filing written exceptions to the report or a demand

for jury trial; (5) the district court’s final judgment (approving compensation or

denying condemnation) is subject to appeal, but such review shall not delay the

condemnor’s use of the property, if approved, so long as the assessed

compensation has been paid.

      Defendant Public Service Company of Oklahoma (PSO) commenced an

eminent domain proceeding to condemn and acquire an easement over plaintiff’s

property to build a railroad spur for transporting coal to one of its power plants.

After the first three steps of the process were concluded, plaintiff sought review

in state court both by exception and jury demand, alleging that the proposed

taking was not for a public use nor reasonably necessary for the use claimed.

Plaintiff also challenged the amount of compensation assessed. The trial court

ruled in favor of PSO, and plaintiff appealed. He also sought interim equitable

relief from the Oklahoma Supreme Court, which denied his requests. While the

appeal was pending, PSO completed the railroad spur and put it in use

(particularly by defendant Burlington Northern Railroad Company (BN), as PSO’s

licensee). When plaintiff threatened to interfere with the operation, PSO obtained


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an injunction against him. Ultimately, the Oklahoma Supreme Court reversed the

judgment of condemnation, holding that the trial court had erroneously relieved

PSO of the initial burden of proof and compounded that error by denying plaintiff

discovery of pertinent materials.   See Public Serv. Co. v. B. Willis, C.P.A., Inc.   ,

941 P.2d 995 (Okla. 1997). On remand, the state trial court refused to dissolve

the existing injunction against plaintiff’s interference with PSO’s operation, and

the Oklahoma appellate courts have affirmed that ruling. However, the trial court

has yet to issue any final decision on the merits of the condemnation.

       In the meantime, plaintiff filed these proceedings in federal district court,

alleging numerous constitutional claims against PSO under 42 U.S.C.         § 1983 and

a trespass claim against BN. The district court identified the crux of the case to

be plaintiff’s assertion that he was constitutionally entitled to a final judicial

determination on condemnation before PSO could take possession of the easement

over his property. In the district court’s view, no federal right was implicated

under the circumstances and, consequently, PSO’s current possession, and BN’s

licensed use, was not actionable.

       On this appeal, plaintiff continues to argue that the state condemnation

proceedings are constitutionally invalid, violating his rights to due process, equal

protection, access to the courts, and free speech. He also claims that, as PSO

could not have acquired a valid right to possession through such proceedings, BN


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has no derivative licensee defense to the trespass claim. Finally, he contends that

the state court order enjoining his interference with PSO’s operations violates his

First Amendment right of free speech. We conclude that most of these claims are

not ripe for adjudication, and the remainder lack merit. Accordingly, we affirm

the district court’s decision dismissing the case.


                                        Ripeness

      Virtually all of plaintiff’s complaints derive, in one way or another, from

the eminent domain proceeding prosecuted by PSO. As outlined above, that

proceeding affords plaintiff the right to challenge both the justification of PSO’s

taking and the adequacy of any resulting compensation.        See generally Okla. Stat.

Ann. tit 66, §§ 51-57. Thus, until that proceeding is concluded, any objections he

may have cognizable under the most directly pertinent provision of the federal

Constitution--the Just Compensation Clause (JCC)--are not ripe for adjudication

and must be dismissed for lack of subject matter jurisdiction under     Williamson

County Regional Planning Comm’n v. Hamilton Bank of Johnson City           , 473 U.S.

172, 186-96 (1985). More to the point here, this ripeness rule encompasses other

constitutional claims which fall squarely within the primary purview of the JCC in

this context, such as the due process, equal protection, and access-to-courts

infirmities plaintiff alleges with respect to the state eminent domain proceeding.

See Bateman v. City of West Bountiful     , 89 F.3d 704, 709 (10th Cir. 1996)

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(collecting numerous Tenth Circuit cases). Thus, pursuit of such closely-related

objections must await the ripening of the predominant JCC claim.        Id.

      However, one condemnation-related claim here clearly falls outside the

Williamson bar. In addition to the objections to his own proceeding, plaintiff

appears to raise a generalized facial challenge to the state eminent domain scheme

itself, for permitting any condemnor to take immediate possession upon payment

of an administratively-determined compensation before final judicial resolution of

the landowner’s objections,   see Okla. Stat. Ann. tit 66,    § 53(C). While an

objection to the taking “as applied to [plaintiff’s] property would be unripe [under

Williamson ],” such a “facial challenge to the [statutory scheme]” is immediately

adjudicable.   See Yee v. City of Escondido , 503 U.S. 519, 533-34 (1992).

      This evidently was, in fact, the claim addressed by the district court, which

held that predeprivation hearings are not constitutionally required in the eminent

domain context. We agree. In addition to the authorities the district court

discussed, we note the Supreme Court specifically stated in       Williamson that

“[u]nlike the Due Process Clause . . . the Just Compensation Clause has never

been held to require pretaking process or compensation.”         Williamson , 473 U.S. at

195 n. 14 (citing Ruckelshaus v. Monsanto Co.      , 467 U.S. 986, 1016 (1984));    see

also J. B. Ranch, Inc. v. Grand County    , 958 F.2d 306, 309 & n.4 (10th Cir. 1992)

(quoting Williamson and rejecting due process claim based on asserted need for


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pretaking hearing in this context as “impos[ing] new and potentially inconsistent

obligations” beyond those required by JCC). Indeed, this was a premise for the

Williamson Court’s ripeness analysis: “[B]ecause 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.” Williamson , 473 U.S. at 195; see also Biddison v. City of Chicago ,

921 F.2d 724, 727 n.4 (7th Cir. 1991).

       This point is obscured somewhat by decisions of the Oklahoma Supreme

Court which, while not holding the eminent domain scheme (particularly the

immediate-possession provision of      § 53(C)) invalid, have broadly stated that “the

establishment of the right to condemn is a prerequisite to any right of possession

by the condemnor.”      Town of Ames v. Wybrant , 220 P.2d 693, 695 (Okla. 1950)

(citing Watkins v. Board of Comm’rs      , 174 P. 523, 525 (Okla. 1918)). However, a

wider view of the case law harmonizes the supreme court’s language with its

evident acceptance of    § 53(C). Thus, the legislative authorization of immediate

possession is permissible    in that such possession remains subject to review and

potential restraint   through the courts’ equitable power: “According to    Wybrant

and Watkins , a public body having the power of condemnation        can be enjoined

from appropriating private property for public use until it has initiated


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condemnation proceedings and had its right to condemn the property finally

determined.” City of Bartlesville v. Ambler       , 499 P.2d 433, 436 (Okla. 1971)

(emphasis added); see Wybrant , 220 P.2d at 696 (noting that “ upon proper

application and showing     [by the landowner]” the trial court “   could make an order

temporarily restraining    the condemnor from taking possession of the land

pending final determination of the right to condemn” (emphasis added));

Wrightsman v. Southwestern Natural Gas Co.         , 46 P.2d 925, 933 (Okla. 1935)

(same). Indeed, plaintiff has taken the opportunity to seek equitable relief in the

state proceedings; he has just not persuaded the Oklahoma courts that it is

warranted in his case. Thus, the state courts’ construction and assessment of the

eminent domain scheme is consistent with applicable federal precedent, and

neither of these bodies of authority support plaintiff’s position that the scheme is

invalid.


                                   Freedom of Speech

       Plaintiff’s First Amendment claim, which challenges a collateral order on a

basis substantively independent of the condemnation process itself, appears also

to fall outside the   Williamson ripeness bar.    Compare Landmark Land Co. of

Okla., Inc. v. Buchanan , 874 F.2d 717, 723 (10th Cir. 1989) (holding intangible

due process right that was substantively distinct from JCC protections was not

subsumed under Williamson ripeness rule), with J. B. Ranch, Inc. , 958 F.2d at

                                            -8-
309 (holding Williamson applicable to due process claim that fell squarely within

compass of JCC protections). However, we hold that dismissal of the claim was

warranted in any event.

         The target of the claim is the state trial court’s order enjoining plaintiff

“from directly or indirectly interfering in any manner with the construction,

maintenance and operation of [PSO’s] railroad spur.” Appellants’ Supp. App. at

21. There is nothing facially speech-sensitive about this order, nor does plaintiff

cite any authority that would support such a claim. Actually, plaintiff is primarily

concerned with a contempt proceeding brought to enforce the injunction after this

appeal was filed. In that proceeding, which has not been concluded, PSO seeks to

hold plaintiff in contempt for sending a letter to BN admonishing that, in light of

the Oklahoma Supreme Court’s reversal of PSO’s condemnation order, plaintiff

“is restoring [his] fence line around [the disputed easement] and posting ‘NO

TRESPASSING’ signs.”         Id. at 22. Whether plaintiff has a cognizable claim

under the First Amendment on this basis is not a question properly before this

panel.


                                         Trespass

         The district court explained that its rejection of plaintiff’s constitutional

challenges to the eminent domain proceedings mooted any remaining claims and,

accordingly, dismissed the entire case. As plaintiff recognizes, his claim against

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BN for trespass obviously stands or falls with the legitimacy of the eminent

domain proceeding from which the railroad derives its status as licensee. Since

any further challenges to that proceeding are not currently ripe for adjudication,

the district court’s dismissal of the action should be affirmed.


                        State Proceedings - Status Reports

      Status reports submitted by plaintiff reflect some unfavorable rulings issued

in the ongoing eminent domain proceedings. In particular, plaintiff complains of

the Oklahoma Supreme Court’s March 22, 1999 denial of his mandamus petition

seeking to disqualify the state trial judge, and the May 4, 1999 denial of certiorari

in his interlocutory appeal from the trial court’s refusal to dissolve the order

enjoining interference with PSO’s operations. For the same reasons expressed

above in connection with plaintiff’s challenge to the eminent domain proceeding

as a whole, these particular objections to specific rulings therein are not ripe for

consideration. Further, if a particular ruling were somehow sufficient to give rise

to a distinct, immediately actionable constitutional wrong, at this point such a

claim would most appropriately be brought in district court, not interjected into

this pre-existing appeal.


                                     Conclusion




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       Accordingly, we affirm the district court’s dismissal of this action. We

clarify, however, that the disposition of plaintiff’s numerous unripe claims, based

on the lack of subject matter jurisdiction, is without prejudice.     See Bateman , 89

F.3d at 706.

       The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. All pending motions are denied as moot.



                                                          Entered for the Court



                                                          Deanell Reece Tacha
                                                          Circuit Judge




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