really difficult questions regarding what's official pleading when one has a condemnation cloud blight such cases don't fit neatly williamson applies and the now doesn't matter right yes but i think that while we start with williams all right and this will illustrate i think the difficulties the complex the use of this case being a condemnation cloud blight case it is a situation in which there has not been any administrative action the county has not passed any rules it hasn't made regulations there is nothing that makes it easy to determine whether or not this is a case where there's been a facial challenge to a rule or whether there is an as applied challenge to a rule as it has been applied and what is the final action cha llenging your it seems to me that there's nothing that is final here as to the properties in question i mean you've argued that the act actions are final with respect to particular buyers but that doesn't preclude you know additional buyers from being sought out so i don't understand how that final prying is met well and that points out one of the difficulties when you have a condemnation like case because it's a way that the county can use to suppress property values during a period of time when the county is trying to decide whether to condemn certain properties or not fact in this instance didn't condemn the properties right i'm sorry they did not in fact condemn their properties no they did not condemn the properties but what they did is acting through the various agents that the county is they  prohibited mr emmert from developing some of these properties they actively discouraged buyers on all of these properties while they discarded them i've only found the those properties he constructed a tilt up building that had been occupied by a tenant and when that tenant left the tenant who came to take over that property was denied a permit usage permit and that permit because of the denial of permit of course that person did not sorry then occupy the building and by doing that they rendered mr rimmer unable to sell a siphon the finality question  for a couple of reasons here number one i think that that the conduct that we're talking about here and the condemnation cloud blight is most closely akin to a facial challenge because applied has a whole lot of life left in it in terms of the supreme court law doesn't and i think you're absolutely right and that was something that was extensively discussed i think by  of her opinions i e in the direction of it's all covered by williams and why not well if that no if if williamson no longer has application to facial challenges and this is a facial twenty three i'm trying to find out where as i understand it the facial challenge law rule came in and it was based on a substantive rule that was later overturned in lingo is this substantial purpose or something so what's left of the facial challenge issue it seems to me that a fair understand what a facial challenge even is in a take this context is sort of difficult it seems that what seems to maybe if you challenged it as not a public use maybe that would be a facial challenge but anything that claim that you should have been paid but weren't what difference isn't what we call it you couldn't go into court nor accounting and made that claim out that there is no statutory mechanism available within the state of oregon for challenging these decisions that the only claim that exists is a constitutional challenge  constitution and pardon me and why does that matter well it matters because if she points out it's by showing that there is no available statutory remedy that the only remedy is available under the oregon state constitution the remedy that's provided under the state constitution may not provide just compensation as does the fifth amendment and so she pointed out in that opinion cited in her in her opinion their findings and recommendations rather it turns the standard analysis on its head where the federal constitution instead of providing a floor below which you cannot go have to show that you didn't get just compensation and so what's the problem i mean in other words the whole point of lamson is you need to demonstrate that the state is not giving you  but in order to allege a cause of action you have to demonstrate that you can't you didn't just compensate you couldn't get just compensation well i think yes and while this is this case the way it comes before this court when it was originally pleaded  it had several causes of action that were pleaded in one of those was the equal protection violation and at that point there were the inverse condemnation claims under state and federal law there was a protection claim that fraud claim and when magistrate judge stewart was addressing the williamson issues it was in the context of whether or not this the federal court should continue to exercise supplemental jurisdiction over the claim under the oregon constitution that's all you're down to a minute did you wish to see even a rebuttal time well yes thank you very much your honor i certainly do a court counsel good morning your honour's i'm stephen mad court for defending clackamas county in fact mr emmert does have available remedies within the state of oregon for an inverse condemnation claim with the he in fact filed in first claim a clock in this county circuit court where remains viable today a little context is important for this case it was initially filed in twenty thirteen there are at dismissed some portions of it magistrate judge as you and stewart dismissed portions of it finally district court judge michael hernandez dismissed the complaint and its entirety because after all those efforts plaintiff had been  every single one of those judges clean up your pleadings your fraud claim your equal protection claim your inverse claim your condemnation blight claim breach of contract claims and condemnation play claim different than the because of what you're planning ok fine there l how does that how does that change the finality analysis because ordinarily as i understand williamson the decision of the local governmental  being challenged a property owner in your honor would have to apply for something they would have to say i would like to build my warehouse on this particular piece of property there would have to be governmental action that responds to that that did not happen in this case he alleged it happened to a variety of properties that because of this proposed road people were dissuaded from doing it not once did he point to any official government action he tried to implicate  can condemn the property i mean a single actor tim tams property me government doesn't act by a single cowpie government doesn't act by a single person we have a five member governing board which is the final decision maker a low level county employee doesn't buy the government and your theory he is if leaving williamson aside he his set of allegations i e people were going around in there they had it in for me and they were going around and telling people because they wanted to get this property sheet in the long run worth at least preserve their option to do that so they were going around and telling people they couldn't buy the property that doesn't i mean that doesn't sound very plausible as opposed to they were telling people if you buy the property then we may condemn it so you know it's not a good idea but he says they told him they could buy the property and he says they told people that  they refused to give us permits and so i suppose all that was true and it wasn't john it was done by whomever it was done by he has no cause of action is what you're saying is a state law already available to all but she is trying to avail himself of presently but the state law remedy you're saying when fly either as i understand it because nobody actually made a decision to do anything he would have to explore that the government itself like you do have vicarious liability and in oregon for the acts you don't need the middel theory itself so that he does have those available to him but you still have to get to some level of government action and saying that somebody told you a road going to be going through there hasn't been recognized by the courts in oregon or federally that that is enough to implicate nine hundred eighty three min l or any other type of liability at this point the court gave him years to plead facts things are bros in the late ninety's according to their complaint itself the people who are now gone dead this person told me in one thousand nine hundred ninety about something there why why is that a pleading issue and not something that can be discussed at summary judgment a misrepresentation perhaps of again a county employee so their level of government involvement here i'm sorry go ahead and you just said earlier that there's no middle problem in calif and in oregon so that would be an dealings with the public at the ts and the county and other people so to suggest that he was duped into things by a low level county employee i think is disingenuous and really inconsistent with their actual allegations at the itself so again we think that the district court got it right after five years a little gating back and forth begging plaintiff give me sufficient facts to move this case forward four different district court the statute of limitations on the tort claim notice and insofar as they relate to the fraud claim under state law one has to provide a tort claim notice if one is to sue  county in this case for a tort that's why it was necessary to demonstrate in pleading the fraud claim that plaintiff did not know  the existence of a claim until a certain date and that particular date was with a i mean then there is a problem because you've alleged several different things and in different times in different places including in one complaint and same time that they relate to two completely different things  the fraud claim was based on the counties promise to purchase at one time or another four of the pieces of property and only related to those four pieces of property the condemnation cloud blight and i think we understand your position we appreciate the arguments of the council and this case as submitted for decision our next case