Downing/Salt Pond Partners, L.P., frustrated by two state agencies’ restrictions on its development of a coastal residential subdivision in Narragansett, Rhode Island, appeals the district court’s dismissal of its federal takings claims under the Supreme Court’s ripeness requirements for such claims, set forth in
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,
Downing argues that it is excused from one
Williamson County
requirement, that it pursue any “adequate procedure for seeking just compensation” that state law provides,
id.
at 195,
I. Standard of Review
We review de novo the legal question of whether the district court properly dismissed Downing’s complaint as unripe for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
Deniz v. Municipality of Guaynabo,
II. Factual Background
A. Facts as Alleged in the Complaint
In 1992, Downing secured a land use permit, called an Assent, from the Rhode Island Coastal Resources Management Council (CRMC), in order to develop a residential community on a tract of land it owns in Narragansett. Between 1992 and 2007 Downing built homes on twenty-six of the planned seventy-nine lots in the subdivision, installed community infrastructure such as roads and a sewer line, and began infrastructure improvements necessary to build on the remaining lots. While Downing failed to attach a copy of the Assent tо its complaint, Downing alleged that none of the Assent’s thirty-four stipulations and conditions required it to perform any archaeological or historical surveys on the tract of land.
In 2007, a second state agency, the Rhode Island Historic Preservation and Heritage Commission (HPHC) “became keenly interested in the site of the Salt Pond Residences project from a cultural and archaeological perspective.” This was *18 because many artifacts had been found in the course of the Salt Pond development project indicating that the land was likely a former Narragansett Indian settlement. These artifacts included digging and grinding tools, fragments of ceramic and stone vessels and a pipe, and projectile points. Downing alleges the HPHC then “concluded that [the land] should be preserved for the benefit of the public at large and not developed at all,” and encouraged the CRMC to withdraw the project’s CRMC Assent. A July 11, 2007 letter from the HPHC Executive Director to the CRMC, Downing alleges, stated that HPHC “was resolved ‘to acquire title to the [site] in order to assure its preservation’ ” (alteration in Complaint).
The CRMC sent Downing a letter dated August 22, 2007 stating that the Assent “is still valid and remains valid pending a determination by the [CRMC] on the issues raised by the Historic Preservation And Heritage Commission” (alteration in Complaint). In a June 2008 HPHC memorandum, 1 Downing alleges, the HPHC confirmed that it had recommended to the CRMC that either construction be prohibited or a “complete archaeological data recovery” project be required as a condition of further construction. Downing estimates that such a data recovery project would cost six million dollars.
Downing alleges that a year after the initial CRMC letter, on August 21, 2008, following a series of informal discussions with the HPHC that did not resolve the dispute, it formally requested that the CRMC submit the matter for hearing. On December 17, 2008 it submitted to the CRMC a legal opinion memorandum and supporting materials from its lawyers arguing that the CRMC and HPHC wеre violating the United States and Rhode Island Constitutions’ takings clauses.
On February 23, 2009, Downing formally notified the HPHC that it would resume construction under its permits absent some response from the agencies. There is no evidence in the record as to whether further communications took place during the months after this February 23 notice.
Downing alleges that neither agency ever responded to any of these communications. The defendants deny that they were nonresponsive, asserting to us as they did to the district court that during the two-year period at issue, informal negotiations were ongoing between the parties to try to resolve the issue.
On June 27, 2009, Downing resumed construction. The same day, the CRMC issued a cease-and-desist order. Downing did not place the order into the district court record, and has not described its contents except to claim that the order did not specify how Downing’s conduct violated its permits. On July 15, 2009, Downing formally requested a hearing before the CRMC in order to contest the cease-and-desist order. Downing alleges that it had heard no response by the CRMC to this request by August 6, 2009. On this day, Downing says, it then sent a “final notice” to the CRMC warning that if the CRMC did not promptly respond, Downing would conclude that its pursuit of administrative remedies was futile and would “proceed accordingly.”
Downing alleges that the CRMC did not resрond to this final notice, though Downing did not wait long for it to do so. Less than three weeks later, on August 24, 2009, Downing filed its complaint in feder *19 al court alleging, inter alia, 2 that the state, CRMC, and HPHC had taken its property for public purposes without just compensation, and denied it substantive and procedural due process and equal protection under the law. Downing sought damages and prospective injunctive relief.
On December 30, 2009, the CRMC issued to Downing a notice of hearing on the issues surrounding Downing’s Assent. The district court noted in its March 26, 2010 opinion that in February 2010 the parties had “agreed that the matter would be referred to a CRMC subcommittee for an expedited hearing.”
Downing/Salt Pond Partners, L.P. v. Rhode Island,
B. Motion to Dismiss in the District Court
Rhode Island moved to dismiss for lack of subject matter jurisdiction, arguing that Downing had failed to meet either of the
Williamson County
ripeness requirements for federal Takings Clause claims, and that its other claims were coextensive with the takings claims and should be subject to the same requirements. Downing responded that it was excused from both requirements. As to the requirement that it seek compensation in state court, Downing argued that Rhode Island provided no “reasonable, certain and adequate” procedures “for obtaining compensation.”
Williamson County,
The district court, in a thoughtful and well-reasoned opinion, granted the motion to dismiss all of Downing’s state and federal claims.
Downing/Salt Pond Partners, L.P. v. Rhode Island,
III. Analysis of the Williamson County Ripeness Prongs
A. Takings Claim Ripeness Requirements
In
Williamson County,
the Supreme Court held that the nature of a federal regulatory takings claim gives rise to two ripeness requirements which plaintiffs bear the burden of proving they have met before a federal court has jurisdiction over a takings claim.
Williamson County,
First, a regulatory takings claim is not ripe until the relevant government entity has “reached a final decision regarding the application of the regulations to the property at issue.”
Williamson County,
The second ripeness requirement, which is the focus of our analysis, arises because the Fifth Amendment “does not proscribe the taking of property; it proscribes taking without just compensation.”
Williamson County,
Under the
Williamson County
ripeness rules a plaintiff might be precluded from ever bringing a takings claim in federal court if the substance of the federal claim is litigated in state court. The Supreme Court squarely confronted this situation in
San Remo Hotel,
in which it acknowledged this implication of
Williamson County
and refused to create an exception from ordinary preclusion rules and the full faith and credit statute, 28 U.S.C. § 1738, whenever “a case is forced into state court by the ripeness rule of
Williamson County.” San Remo Hotel,
The Supreme Court has continued to adhere to the
Williamson County
state litigation rule, despite Chief Justice Rehnquists’s concurrence in
San Remo Hotel
encouraging the Court to reconsider the rule.
6
In
San Remo Hotel
itself, twenty years after
Williamson County,
the Court expressly refused to soften the effects of the rule on takings plaintiffs’ access to the federal courts.
See id.
at 341-42,
This court has held, under
Williamson County,
that a takings claim against the state of Rhode Island was unripe where, as here, the plaintiff had failed to pursue the state’s inverse condemnation cause of action.
Pascoag,
Without deciding “whether compensation is due when the state acquires land by adverse possession or prescription,”
id.
at 90, this court held that Pascoag had failed to show that Rhode Island state remedies are “unavailable” or “inadequate,”
Williamson County,
Pascoag cannot show that Rhode Island’s remedies were inadequate or unavailable. The Rhode Island Constitution prohibits the taking of private property for public use without just compensation and Rhode Island state courts have long allowed recovery through suits for inverse condemnation. Thus, Rhode Island has an adequate process available to address Pascoag’s suit for just compensation.
Id. at 93 (citations omitted).
Downing’s arguments to the contrary rely on its reading of
Flores Galarza,
which itself did not purport to overrule the holding in Pascoag.
8
In
Flores Galarza,
a divided panel held under Puerto Rico law that an unusual type of takings claim was ripe because the plaintiffs were excused from fulfilling the
Williamson County
requirements.
Flores Galarza,
The majority opinion reasoned that the withholding of funds amounted to a physical taking, not a regulatory one, id. at 15, and that because it involved “the direct appropriation of funds,” the Williamson County requirements were wholly inapplicable, id. at 19. The majority nonetheless discussed the nature of the state litigation requirement, in language that Downing reads as reframing the Williamson County state litigation requirement:
The key component of this prong of Williamson County is the availability of a [state] process that is particularly aimed at providing compensation when government action effects a taking. In our view, such procedures do not include litigatiоn of a state takings claim or any general remedial cause of action under state law. Rather, the Supreme Court must have had in mind only those procedures specifically designed by the state to avoid constitutional injury in the first instance by providing a means for a plaintiff to obtain compensation for the government’s taking of property.
Id. at 16-17 (emphasis added) (citations omitted). Downing relies on this language to argue that if this is the standard, then Pascoag must be reconsidered.
Downing also relies on other language in the majority opinion that attempts to contrast inverse condemnation proceedings with “any generally available state procedure that might provide a remedy for an uncompensated taking.” Id. at 17. The majority concluded that if only the latter was available, a plaintiff need not pursue it to satisfy Williamson County, 9 Id. at 17. This purported distinction was driven in part by reliance on the concerns in Chief Justice Rehnquist’s concurrence in San Remo Hotel and the panel majority’s consideration that the full Supreme Court might respond to those concerns by narrowing or overruling the state litigation requirement in the near future. See id. at 17-18. As we have said, the Supreme Court has since refused to alter the Williamson County state litigation requirement, and so that basis has disappeared.
One judge concurred in the judgment, disagreeing strongly with the majority’s conclusion and analysis on the state litigation rule. The concurring opinion argued, “There is no support in Supreme Court precedent for the conclusion that claimants are relieved of the litigation requirement unless the state has adopted specific processes ... through which such compensation may be recovered.” Id. at 38 (Howard, J., concurring in the judgment). “It is not enough to show only that the adequacy of state process remains unsure and undeveloped”; it must be affirmatively shown to be unavailable or inadequate. Id. at 40.
The majority’s analysis was, as the district court in this case recognized, called into question by the en banc court. Threе judges (a clear majority of the court’s five active judges at the time, four of whom participated in the matter) wrote in a statement accompanying an order denying en banc review, “It appears to us that the
*24
panel majority decision likely conflicts directly with binding Supreme Court authority and prior decisions in this court, as well as the law in other circuits.”
Id.
at 40 (statement accompanying denial of reh’g en banc) (footnotes omitted). The three judges emphasized, as had the concurrence, that plaintiffs must carry “the burden of demonstrating the absolute lack of ... a state proceeding” in which compensation could be available, and that the court’s precedent had previously determined that “such a proceeding and a remedy may very well exist under the Puerto Rico Constitution.”
Id.
at 41 (citing
Deniz,
B. Downing Is Not Excused from Meeting the State Litigation Prong
Downing acknowledges that it never initiated an inverse condemnation proceeding in Rhode Island state court, but went instead directly to federal court. Downing argues that it was excused from
Williamson County’s
state litigation requirement because Rhode Island’s state law remedies are “unavailable” or “inadequate.”
See Williamson County,
Downing has two arguments in reply. First, it argues that
Flores Galarza
overruled
Pascoag
as to Rhode Island’s inverse condemnation cause of action and set forth a higher standard for state remedies that Rhode Island’s inverse condemnation cause of action does not meet. Second, it argues that all the
Pascoag
court held was that the plaintiff
in that case
had not proven the inadequacy or unavailability of the Rhode Island inverse condemnation procedure, and that the state procedure suffers from defects not considered in
Pascoag
that make it not a “reasonable, certain and adequate provision for obtaining compensation.”
Williamson County,
1. We Reject Downing’s Arguments that We May Alter the Williamson County Test Based on Flores Galarza
We turn first to Downing’s arguments relating to
Flores Galarza.
Downing argues that Rhode Island’s inverse condemnation proceeding falls on the wrong side of the line drawn in
Flores Galarza
between “a process that is particularly aimed,”
Flores Galarza,
Downing’s argument depends on the proposition that
Flores Galarza
narrowed
Williamson County
generally by heightening the standard for adequate state procedures. If that proposition were correct, Downing might have an argument. But
Flores Galarza
could not overrule prior circuit law.
See Pascoag,
To the extent that language in the
Flores Galarza
majority opinion can be read to say the plaintiffs do not bear the burden of proving the inadequacy or unavailability of state procedures for seeking comрensation, that language cannot be squared with either Supreme Court or First Circuit precedent. The
Flores Galarza
majority expressly refused to “require] plaintiffs to invoke any generally available state procedure that
might
provide a remedy for an uncompensated taking.”
Flores Galarza,
In the First Circuit, “It is well settled that the burden of demonstrating the absolute lack of [an adequate] state proceeding is on the plaintiff.”
Flores Galarza,
Our sister circuits agree that the burden is on the plaintiff to prove the absolute unavailability or inadequacy of potential state remedies in order to be excused from the state litigation requirement.
See, e.g., Island Park, LLC v. CSX Transp.,
Other language in
Flores Galarza,
if read a certain way, would also conflict with Supreme Court precedent. The majority held that a plaintiff is excused from the state litigation requirement if the only remedy available under state law is a general state takings claim.
Flores Galarza,
Indeed, other circuits to face the question have held that plaintiffs must pursue claims under the takings clause of a state constitution even when there is no judicial or legislative inverse condemnation procedure already definitively established.
See, e.g., Island Park,
2. Downing’s Other Attacks on Pascoag Also Fail
Downing also argues that the holding in Pascoag, that Rhode Islаnd has made available an adequate state-law remedy that plaintiffs must pursue before their federal takings claims will ripen, has no binding force in its case, even if Pascoag is *27 binding precedent. However, the main thrust of even these arguments is that Pascoag insufficiently considered whether Rhode Island’s inverse condemnation proceedings met the adequacy standards set forth in Flores Galarza, and so the arguments are disposed of under our rejection of a reading of Flores Galarza as narrowing the state litigation requirement.
Downing also attempts to distinguish its case from
Pascoag
on the facts, arguing that
Pascoag
is inapposite because it involved a different type of alleged taking, arising from the state’s acquisition of the plaintiffs land by adverse possession and prescriptive easement, rather than from the actions of state regulatory agencies as in Downing’s case. The specific mechanism of the alleged taking had no bearing on our consideration of the
Williamson County
ripeness requirements in
Pascoag. See Pascoag,
Downing further argues that deficiencies in the remedies available to it in state court render those remedies inadequate under
Williamson County.
Rhode Island, Downing argues, has no statute comparable to federal statutes permitting recovery of attorneys’ fees or pre-judgment statutory interest on awarded compensation.
See
28 U.S.C. § 1961 (interest); 42 U.S.C. § 1988(a) (fees);
Andrade v. State,
Finally, Downing argues that because Rhode Island has not statutorily waived sovereign immunity for inverse condemnation claims as it has for statutory condemnation procedures, the remedy is uncertain. This аllegation cannot satisfy Downing’s burden to show absolute unavailability in light of the Rhode Island Supreme Court’s decisions repeatedly reaching the merits in inverse condemnation cases.
See Palazzolo,
IV. Remaining Arguments
Because Downing must show it has fulfilled or is excused from both prongs of the Williamson ripeness requirements, and we have found that Downing has failed to make this showing as to the state litigation requirement, we need not address the other prong, the finality requirement.
As to Downing’s other federal claims, Downing argues strenuously in its reply brief that it has not waived its due process claims, because it has argued that the entire district court decision was erroneous. Downing’s opening brief makes frequent passing reference to Downing’s due process claims, but provides no argument explaining why those claims should survive in federal court even if its takings claims are
*28
found to be unripe, the issue of primary relevance as to these claims at this stage in the proceedings. Nor did Downing make any such argument in the district court. The argument is doubly waived.
Cortes-Rivera v. Dep’t of Corr. & Rehab.,
We decline to address the issues raised for the first time by amicus in its brief, which argues that
Williamson County’s
ripeness rules apply only to Takings Clause claims, leaving plaintiffs free to pursue in federal court Due Process Clause and Equal Protection Clause claims that arise from the same allegedly illegal state conduct. “[AJmici may not make up for waiver by a party,”
Family Winemakers of Cal. v. Jenkins,
While the two agencies strenuously deny that they have been unresponsive or have unreasonably delayed their decisions on Downing’s project, we express the hope that the parties will promptly attempt to resolve any remaining disagreements.
Affirmed.
Notes
. The Complaint does not state whether the memorandum was addressed to the CRMC or to Downing.
. Downing also alleged under federal law that the agencies had conspired tо violate Downing's civil rights. Under Rhode Island law, Downing also alleged that the agencies had intentionally interfered with its advantageous business relations.
. According to Downing's counsel, the CRMC subcommittee had conducted four or five hearings over several months. That stage of the process had concluded. The parties had still to submit closing written submissions, after which the subcommittee would make a recommendation to the full CRMC.
. In adopting this "state litigation” terminology we do not mean to suggest that the requirement would not encompass a non-judicial state procedure that was otherwise adequate and available under Williamson County.
. As a practical mattеr, the Court emphasized, because the finality requirement was actually "settled well before
Williamson County,"
regulatory takings were already rarely litigated in federal court.
San Remo Hotel, L.P. v. City & Cnty. of San Francisco,
. Chief Justice Rehnquist explained that since joining the
Williamson County
majority, he had come to think that "the justifications for [the] state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic” in that they are often entirely precludеd from a federal forum for their federal takings claims.
Id.
at 352,
.
See also Stop the Beach Renourishment, Inc. v. Fla. Dept. of
Envtl. Prot., -U.S.-,
. The majority did cite
Pascoag
for the proposition that the finality requirement does not apply to physical takings claims, but otherwise did not discuss
Pascoag. See Asociación De Subscripción Conjunta Del Seguro De Responsabilidad Obligatorio v. Flores Galarza,
. As we explain below, Downing argues that Rhode Island’s judicially created inverse condemnation cause of action is actually, under the framework of
Flores Galarza,
merely a "generally available state procedure” rather than one “particularly aimed” at addressing its specific type of claim.
See Flores Galarza,
. The plaintiffs in
Gilbert
petitioned for a writ of certiorari, asking the Supreme Court to reconsider the
Williamson County
state litigation rule.
See
Opposition to Petition for Writ of Certiorari at
i, Gilbert v. City of Cambridge,
No. 91-209 (U.S. Aug. 30, 1991),
. There is also reason to think that, despite its broad language,
Flores Galarza
did not intend to alter the rule in
Pascoag.
The
Flores Galarza
majority repeatedly referred to inverse condemnation proceedings, whether created by statute or judicial recognition, as being appropriate state procedures under
Williamson County. See Flores Galarza,