Bowers v. Whitman, 671 F.3d 905

Measure 37 (2004) required compensation for reductions in property value from land-use regulations, potentially creating monetary or waiver-based remedies.
Measure 37 waivers allowed property owners to avoid compliance with certain regulations, but did not guarantee a specific use or monetary payment, and were not contracts or final judgments.
Measure 49 (2007) replaced Measure 37 remedies, potentially eliminating monetary relief and waivers, while preserving a path to vested rights for some claims.
Plaintiffs filed claims under Measure 37 seeking compensation or ongoing waivers; most did not receive monetary relief and could not develop land under Measure 49.
This appeal addresses whether Measure 49 effected a taking, violated due process, or violated equal protection, with central focus on whether Measure 37 rights vested.
The panel denied panel rehearing and en banc review; the district court’s rulings were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Measure 49 enactment constitute a taking of vested rights?	Bowers claimed Measure 37 rights vested and were protected from removal.	Oregon argued no vesting occurred; waivers were not contracts or final judgments.	No taking; Meas. 37 rights not vested.
Does Measure 49 violate substantive due process by affecting economic rights?	Measure 49 burdens property owners without fundamental rights.	Economic rights are not fundamental; rational basis applies.	No substantive due process violation; rational basis sustains Measure 49.
Does Measure 49 create unconstitutional disparate treatment under equal protection?	Treatment of claimants is uneven and irrational.	Classification has rational basis to balance remedies and resources.	No equal protection violation; rational basis applies.

Engquist v. Oregon Dept. of Agric., 478 F.3d 985 (9th Cir. 2007) (two-step takings analysis; property interests defined by state law)
Bd. of Regents v. Roth, 408 U.S. 564 (U.S. 1972) (property interests defined by government rules; vested rights)
Perry v. Sindermann, 408 U.S. 593 (U.S. 1972) (fundamental due process protections for protected interests)
United States v. Sioux Nation, 448 U.S. 371 (U.S. 1980) (explicit promises can create vested rights)
Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (U.S. 1981) (property interest in funds; taking analysis)
Lynch v. United States, 292 U.S. 571 (U.S. 1934) (government cannot avoid payment of commitments by repeal)
Holmes (Clackamas Cnty. v. Holmes), 265 Or. 193 (Or. 1973) (Holmes factors for vesting in land use rights)
Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (U.S. 1985) (ripeness and final decision for takings claims)
English v. Multnomah Cnty., 238 P.3d 980 (Or. 2010) (preclusion of remedies and vesting under Measure 49 context)
Corey v. Dep't of Land Conservation & Dev., 210 Or.App. 542 (Or. Ct. App. 2007) (procedural due process rights for waivers)
Emmel v. Dep't of Land Conservation & Dev., 162 P.3d 354 (Or. Ct. App. 2007) (procedural due process rights for waivers)
Dodd v. Hood River Cnty., 59 F.3d 852 (9th Cir. 1995) (retrospective legislation and due process)
Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717 (U.S. 1984) (retrospective legislation and rational basis)