FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JON BOWERS; LYNNA BOWERS; A. L. 

BRUNER; MARILYN BRUNER; ROBERT

FERNS; MILTON GORDEN; KATHLEEN

GORDEN; MORTON GOSSETT;

CHARLES N. HILKEY, Jr.; LINDA

JONES; JAMES LAVIA; MARCIA

LAVIA; DONALD LITCHFIELD;

MELISSA LITCHFIELD; JERRY No. 10-35966

MCCAULEY; KATHLEEN MCCAULEY;  D.C. No. IRMA PAYNE; HAROLD PAYNE;

1:09-cv-03082-PA WALTER PHILLIPS; LYLE WOODCOCK,

Plaintiffs-Appellants,

v.

RICHARD WHITMAN; STATE OF

OREGON DEPARTMENT OF LAND

CONSERVATION AND DEVELOPMENT,

Defendants-Appellees. 

237
CITIZENS FOR CONSTITUTIONAL 

FAIRNESS, an Oregon nonprofit

corporation; PACIFIC WESTERN OF

MEDFORD, L.L.C.; DUANE CROSS;

BUD KAUFMAN; GARY WIRTH;

DOUGLAS STURGEON; CARL

OFFENBACHER; DOROTHY LIPPKE;

GARY LEWELLYN; ORVILLE EARY;

JOSEPH DAUENHAUER; MYRON

CORCORAN; ESTHER A. CORCORAN;

JAMES COCHRAN; ACE CARTER;

GORDON S. ANDERSON; DON No. 10-36029

ROWLETTE; AL GRAY; KEN BIGHAM; D.C. No.

ARNOLD CROSS; MARALOU CROSS;  1:08-cv-03015-PA

MARIONANN KAUFMAN; CROSS & OPINION KAUFMAN LOGGING,

Plaintiffs-Appellants,

and

VELDA DICKEY,

Plaintiff,

v.

JACKSON COUNTY, a political

Subdivision of the State of

Oregon; DANNY JORDAN,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted

October 12, 2011—Portland, Oregon

Filed January 12, 2012

238 BOWERS v. WHITMAN
Before: David M. Ebel,* Marsha S. Berzon, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

*The Honorable David M. Ebel, Senior Circuit Judge for the Tenth Circuit, sitting by designation. 

BOWERS v. WHITMAN 239
COUNSEL

Jack Herbert Swift, Grants Pass, Oregon, for the Bowers

plaintiffs-appellants.

Jack Herbert Swift, Grants Pass, Oregon (briefed and argued);

William L. Bernard, Pueblo, Colorado (argued), for the Citizens plaintiffs-appellants.

G. Kevin Kiely, Cable Huston Benedict Haagensen & Lloyd

LLP, Portland, Oregon (briefed); George F. Hammond, Medford, Oregon (briefed and argued), for the Richard Whitman,

et al. defendants-appellees.

Stephanie L. Striffler, Oregon DOJ, Salem, Oregon, for the

Jackson County defendant-appellee and the state of Oregon

amicus defendant-appellee.

OPINION

N.R. SMITH, Circuit Judge:

In this consolidated appeal, we determine whether the State

of Oregon and Jackson County (collectively Oregon) committed a constitutional taking, violated Plaintiffs’ due process

rights, or violated Plaintiffs’ equal protection rights when

Oregon voters enacted Measure 49 to replace and modify

remedies available under the previous Measure 37. We con242 BOWERS v. WHITMAN
clude that Oregon did not commit a constitutional taking

when it modified the remedies available under Measure 37,

because any potential property interest that Plaintiffs had for

compensation or a specific type of land use under Measure 37

had not vested. Measure 49 also does not contravene substantive due process, because it does not implicate fundamental

rights. For this reason, and also because the regulatory classification under Measure 49 is not based on a suspect class,

Measure 49 also survives rational basis scrutiny and has not

violated Plaintiffs’ equal protection rights. Therefore, we

AFFIRM the district court.

FACTS

1. Measure 37

In 2004, Oregon voters passed Measure 37, originally codified at Or. Rev. Stat. § 197.352 (2005), through the initiative

process. Measure 37 required “state and local governments to

compensate private property owners for the reduction in the

fair market value of their real property that results from any

land use regulations of those governmental entities that

restrict the use of the subject properties.” MacPherson v.

Dep’t of Admin. Servs., 130 P.3d 308, 312 (Or. 2006). Thus,

for those who qualified, Section One of Measure 37 authorized a public entity to award “just compensation” to landowners if that entity enforced land use regulations that

reduced the fair market value of the landowners’ property,

even if such reduction did not constitute a “taking.”

§ 197.352(1).

Section Six provided the claimant with a statutory cause of

action in state court for the recovery of that compensation, if

the subject land use regulation continued in force for 180 days

after claim was made. § 197.352(6). Sections Eight and Ten

of the Act provided to the claimed-upon-government entity an

ability to avoid payment of monetary compensation by granting that entity the authority to modify, remove, or not apply

BOWERS v. WHITMAN 243
the subject land use regulation. § 197.352(4). If a public entity

chose this option within 180 days of a property owner submitting a demand, no entitlement to monetary compensation

arose under the statute. The second option, to exempt property

from otherwise applicable regulations and allow a specified

use, colloquially became known as a “Measure 37 waiver.”

Damman v. Bd. of Comm’rs of Yamhill Cnty., 250 P.3d 933,

935 (Or. App. 2011).1 These Measure 37 waivers “allow[ed]

the owner to use the property for a use permitted at the time

the owner acquired the property.” § 197.352(8).

Thousands of such claims were filed statewide, with Jackson County alone validating approximately 571 such claims.

Most property owners in Oregon, who pursued a remedy

under Measure 37, received Measure 37 waivers from their

local governments, not monetary compensation. A Measure

37 waiver provided that the regulations at issue in the property owners’ claims would not be applied to their property. 

2. Measure 49

During the 2007 legislative session, the state legislature

referred Measure 49 to the voters. This measure also passed

and has been codified as the current Or. Rev. Stat. §§ 195.300

to 195.336 (2007). The Oregon Supreme Court examined the

text and context of Measure 49 and found that it “conveys a

clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.” Corey v. Dep’t

of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or.

2008). The court went on to observe that “Measure 49 exten1We will continue to refer to this option for the government as a “waiver,” because that is how the state of Oregon characterizes it. Although the

text of Measure 37 does not refer to waivers, Measure 49 defines “waiver”

as “an action or decision of a public entity to modify, remove or not apply

one or more land use regulations . . . to allow the owner to use property

for a use permitted when the owner acquired the property.” Or. Rev. Stat.

§ 195.300(24) (2007). We note that the term “waiver” typically has legal

significance not applicable here. 

244 BOWERS v. WHITMAN
sively amends [Measure 37] in a way that wholly supersedes

the provisions of Measure 37 pertaining to monetary compensation for and waivers from the burdens of certain land use

regulations under that earlier measure.” Id. 

Of greatest importance to this case, Measure 49 undertook

to change the remedies available to property owners who had

already begun the process of pursuing relief under Measure

37. Measure 49 replaced the process, the approval standards,

and the extent of the relief (if any). Measure 49 also removed

some of the benefits previously available, including monetary

relief and waivers allowing commercial or industrial development. §§ 195.305, 195.310. Measure 49, however, exempted

a property owner from pursuing compensation pursuant to the

new provisions in Measure 49 if the property owner had “a

common law vested right . . . to complete and continue the

use described in the waiver.” Compiled as a note after

§ 195.305. Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested

rights determination generally either applied for a local decision or sued for a declaratory judgment. 

According to Oregon, whether a landowner has a vested

right to complete development of property (even though the

law has changed) turns on whether the landowner’s “commencement of the construction . . . [has] been substantial, or

substantial costs toward completion of the job . . . have been

incurred.” Clackamas Cnty. v. Holmes, 508 P.2d 190, 192

(Or. 1973)). In Holmes, the Oregon Supreme Court held that

whether a landowner’s right vests turns on the facts of each

case, and the court set forth a list of factors for analyzing

those facts. Id.

3. Plaintiffs’ Claims

All of the Citizens for Constitutional Fairness et al. Plaintiffs and the Bowers et al. Plaintiffs (collectively Plaintiffs)2

2Plaintiffs will be referred to separately as Citizens Plaintiffs and Bowers Plaintiffs only when necessary. 

BOWERS v. WHITMAN 245
are owners of real property in the State of Oregon, who submitted written demands for compensation under Measure 37

and received timely waivers. None of these individual plaintiffs have recovered any monetary compensation, and,

because of Measure 49, none have been able to proceed with

any development of their land under the waivers granted.

PROCEDURAL HISTORY

1. Citizens Case

Citizens Plaintiffs initially brought this action against Jackson County in relation to Measure 49, which amended prior

Ballot Measure 37 and replaced the relief previously available

to Citizens under that statute. Citizens Plaintiffs’ complaint

raised several causes of action, two of which are relevant to

this appeal. In their fifth cause of action, Citizens Plaintiffs

asserted that waivers granted to them by the County under

Measure 37 constituted binding contracts, protected by the

Contracts Clause of the United States Constitution. Citizens

Plaintiffs’ sixth cause of action asserted that, pursuant to Measure 37, they had gained an accrued cause of action for monetary compensation, which was a property interest protected by

the Fifth and Fourteenth Amendments to the United States

Constitution. 

On summary judgment, the district court held that the Measure 37 waivers were contracts that could not be impaired pursuant to the Contracts Clause and, in the alternative, they were

judgments that could not be impaired under the doctrine of the

separation of powers. The County appealed, and we reversed,

ruling that Measure 37 waivers are neither contracts nor court

judgments implicating separation of powers issues. Citizens

for Constitutional Fairness v. Jackson Cnty., 388 F. App’x

710, 711 (9th Cir. 2010). The district court then concluded

that our decision disposed of the remainder of the Citizens

Plaintiffs’ claims and dismissed the case. The Citizens appeal

promptly followed.

246 BOWERS v. WHITMAN
2. Bowers Case

Before any decision was rendered on the first Citizens

appeal, different claimants brought another suit in the district

court in the Bowers case. The Bowers Plaintiffs are all Measure 37 claimants. They sued the Department of Conservation

and Development Commission and Director Whitman, seeking damages and declaratory relief against enforcement of

Measure 49. Bowers Plaintiffs alleged five causes of action,

the first three of which remain at issue in this appeal. 

First, Bowers Plaintiffs alleged that there had been a “taking” of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those

property interests were “statutory rights to monetary compensation,” “vested and accrued claim[s] for compensation,”

“legal entitlements . . . in lieu” of monetary compensation, or

“Measure 37 waivers and the entitlement to monetary compensation.” Second, Bowers Plaintiffs alleged that Measure

49 violates equal protection guarantees under the Fourteenth

Amendment. Third, Bowers Plaintiffs alleged that Measure 49

violates substantive due process under the 14th Amendment.

After Bowers was filed, this court issued its opinion in the

first Citizens appeal, holding that the Measure 37 waivers

were not court judgments or contracts. Relying on our decision, the district court granted the motion for summary judgment in the Bowers case and dismissed the remaining claims

against Whitman in an order and judgment. The Bowers

appeal followed.

ANALYSIS

In these cases, the Plaintiffs do not identify any disputed

facts below in their briefs. Accordingly, these cases appeal

only the district court’s conclusions of law, which we review

de novo. DirecTV, Inc. v. Webb, 545 F.3d 837, 842 (9th Cir.

2008).

BOWERS v. WHITMAN 247
A. The enactment of Measure 49 did not effect a constitutional taking of Plaintiffs’ potential property interests

created under Measure 37.

[1] “We use a two-step analysis to determine whether a

[constitutional] ‘taking’ has occurred: first, we determine

whether the subject matter is ‘property’ within the meaning of

the Fifth Amendment and, second, we establish whether there

has been a taking of that property, for which compensation is

due.” Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1002 (9th

Cir. 2007), aff’d, 553 U.S. 591 (2008). 

“Property interests . . . are not created by the Constitution.

Rather they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as state law-rules or understandings that

secure certain benefits and that support claims of entitlement

to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577

(1972). 

In some cases, the Supreme Court has recognized property

rights that were constitutionally protected, such that they were

safeguarded by due process, but still not vested, and thus the

government could take away these interests so long as it provided proper procedures. See, e.g., Perry v. Sindermann, 408

U.S. 593 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970). But

in other cases, constitutionally protected property rights were

held to have vested and thus became cognizable under the

Takings Clause, such that the government could not remove

the right without providing just compensation. See United

States v. Sioux Nation, 448 U.S. 371, 414-15, 424 (1980)

(holding that the government could not enact legislation to

take back land it had expressly given to the Sioux Nation

without committing a constitutional taking); Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164-65 (1980)

(holding that the state’s confiscation of the interest accrued on

interpleader funds was a constitutional taking); Lynch v.

United States, 292 U.S. 571, 576 (1934) (holding that the gov248 BOWERS v. WHITMAN
ernment could not avoid payment of its commitment to pay

disability and life insurance by enacting a statute repealing the

laws granting the benefit without committing a constitutional

taking); see also Black’s Law Dictionary 1324 (7th ed. 1999)

(defining a vested right as “[a] right that so completely and

definitely belongs to a person that it cannot be impaired or

taken away without the person’s consent”).

[2] In the present case, we assume without deciding that

the procedure provided through the ballot initiative was sufficient to satisfy any procedural due process requirements,

because this issue is not contested by the Plaintiffs.3 Thus, the

critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modify

the right without committing a constitutional taking. After

review, we conclude that such property interests have not

vested.

[3] To determine whether a property interest has vested for

Takings Clause purposes, “the relevant inquiry is the certainty

of one’s expectation in the property interest at issue.” Engquist, 478 F.3d at 1002. We noted in Engquist that, if the

property interest is “contingent and uncertain” or the receipt

of the interest is “speculative” or “discretionary,” then the

government’s modification or removal of the interest will not

constitute a constitutional taking. Id. at 1003-04. For multiple

reasons, Plaintiffs have not sufficiently demonstrated certain

expectations in their Measure 37 property interests to trigger

Takings Clause protection.

3Though Bowers Plaintiffs appear to assert a procedural due process

claim on appeal, they renounced any procedural due process claim in their

opposition to Whitman’s motion to dismiss. Even if Plaintiffs had not

abandoned this claim, the process provided in this case was sufficient

because “[w]hen a state alters a state-conferred property right through a

legislative process, the legislative determination provides all the process

that is due.” Rea v. Matteucci, 121 F.3d 483, 485 (9th Cir. 1997) (internal

quotation marks omitted). 

BOWERS v. WHITMAN 249
[4] At the outset, we emphasize that Plaintiffs failed to

articulate any clear characterization of the exact property

interest to which they are entitled. Their descriptions range

from an accrued cause of action to a right to monetary compensation derived from a statutory entitlement to the right to

use their land consistent with Oregon’s decision to not regulate their property under Measure 37. When pressed at oral

argument on whether a ruling in the Plaintiffs’ favor would

have entitled them to money or to land use rights, the Plaintiffs were unable to provide a clear answer and argued essentially for both. The Plaintiffs’ inability to characterize their

requested relief reflects the uncertainty of the property interests upon which they rely. Neither have Plaintiffs’ claims

vested under any of the various characterizations of the Measure 37 waiver that the Plaintiffs set forth. 

1. Accrued Cause of Action

[5] Plaintiffs, at some junctures, have maintained that their

Measure 37 property interest is an accrued cause of action that

has been unconstitutionally taken from them by Measure 49.

“We have squarely held that although a cause of action is a

species of property, a party’s property right in any cause of

action does not vest until a final unreviewable judgment is

obtained.” Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009)

(quoting Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th Cir.

2001) (internal quotation marks omitted); see also Fields v.

Legacy Health Sys., 413 F.3d 943, 956 (9th Cir. 2005)

(“Causes of action are a species of property protected by the

Fourteenth Amendment’s Due Process Clause. However, a

party’s property right in any cause of action does not vest

until a final unreviewable judgment is obtained.”) (citation,

internal quotation marks, and emphasis omitted). The reason

an accrued cause of action is not a vested property interest for

Takings Clause purposes until it results in a “final unreviewable judgment,” is that it is inchoate and does not provide a

certain expectation in that property interest. Id. (citing Austin

v. City of Bisbee, 855 F.2d 1429, 1435 (9th Cir. 1988)

250 BOWERS v. WHITMAN
(explaining that, although a cause of action is a species of

property, “it is inchoate and affords no definite or enforceable

property right until reduced to final judgment” (internal quotation marks omitted)). 

[6] As we held in the previous interlocutory appeal in the

Citizens case, the waivers provided under Measure 37 “were

administrative decisions, not court judgments.” Citizens for

Constitutional Fairness v. Jackson Cnty., 388 F. App’x. at

711. The question, then, is whether those decisions imparted

a certainty that property owners were entitled to a particular

use of their property, to compensation, or to some other property interest cognizable under the Takings Clause. Cf. Engquist, 478 F.3d at 1003. We conclude that they did not.

[7] The waivers stated that particular land use regulations

would not be applied, but this statement did not entitle waiver

recipients to develop their property in any particular way. Any

development required approval from the requisite governmental bodies as well as, in many, if not all, cases, a waiver from

the state of Oregon. Indeed, all of the waivers in the record

state that “Jackson County does not promise Claimant(s) that

Claimant(s) will eventually be able to put the property to any

particular use.”

4

[8] Further, the waivers were not self-enforcing. They did

not, for example, specify a particular amount of compensation

to be paid if a municipality continued to apply a waived land

use regulation. Instead, in such a circumstance, a property

owner’s only recourse was “a cause of action” in Oregon state

court. Thus, Plaintiffs here had, at most, a cause of action, not

a final judgment. Their right to sue was therefore not a property interest protected by the Takings Clause.

4The Plaintiffs noted in oral argument that the text of Measure 37 waivers varied from county to county. However, no other waivers appear in the

record, and at oral argument the Plaintiffs suggested that Jackson County’s

waivers were representative of the other waivers. 

BOWERS v. WHITMAN 251
2. Statutory Entitlement

Plaintiffs have also characterized their property right as a

vested statutory entitlement to compensation, or the equivalent of compensation. We have recognized that “[t]here is no

question that claims for compensation are property interests

that cannot be taken for public use without compensation.” In

re Aircrash in Bali, Indon., 684 F.2d 1301, 1312 (9th Cir.

1982). But in that case, we held that whether the claim had

vested, such that the government’s interference with the claim

constituted a taking, “turn[ed] on questions of degree.” Id.

This echoes the rule in Engquist, that vesting is determined

based on “certainty of expectations.” 478 F.3d at 1003. 

[9] The Supreme Court has required a high threshold of

certainty before finding that an entitlement had vested. For

instance, the Court has recognized this certainty where the

plaintiffs had paid consideration for their entitlement, Lynch,

292 U.S. 571, or where the government made an explicit

promise that the property interest would not be taken away,

Sioux Nation, 448 U.S. 371. However, the Supreme Court has

not recognized a vested right in the area of social security

benefits or retirement benefits benevolently given. See U.S.

R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 174 (1980) (upholding

the government’s ability to alter benefits under a railroad

retirement plan); Hisquierdo v. Hisquierdo, 439 U.S. 572,

575-576 (1979) (finding that “Congress may alter, and even

eliminate” railroad retirement and Social Security benefits “at

any time”); see also Flemming v. Nestor, 363 U.S. 603, 608-

611 (1960) (upholding Congress’s ability to alter Social

Security benefits). 

[10] Plaintiffs’ claim of entitlement does not contain the

necessary certainty of expectation for multiple reasons. First,

in the present case, Measure 37 waivers clearly did not constitute an express and unequivocal promise by Oregon to provide compensation, because Oregon had the option of

providing either compensation or removing certain land use

252 BOWERS v. WHITMAN
regulations. Thus, no monetary commitment was unequivocally made. Furthermore, as noted, the waivers themselves

explicitly disclaimed a claimant’s right to any particular land

use. Thus, Oregon’s option of waiving the application of specific land use regulations was also not an unequivocal grant

of an unfettered right. Finally, as we held in the previous

interlocutory appeal, Measure 37 waivers were not contracts,

nor were they evidence of a contract between the property

owners and the county. See Citizens for Constitutional Fairness v. Jackson Cnty., 388 F. App’x. at 711 (“[T]he waivers

do not show that there was any offer by Jackson County,

acceptance by the property owners or consideration.”). 

[11] Plaintiffs’ claims for compensation under statutory

entitlement are more akin to social security benefits: something that the government voluntarily and benevolently provides, but that the government can stop providing at any time

(assuming the government has complied with the requisite

procedural due process). See, e.g., Hisquierdo, 439 U.S. at

575-576. Thus, Plaintiffs cannot claim to have certain expectations in compensation under their Measure 37 waivers as a

statutory entitlement.

3. Right to a Particular Land Use

[12] To the extent that the property interest provided under

Measure 37 was merely a right to particular land uses, it is

analogous to a zoning permit. It is well established that there

is “no federal Constitutional right to be free from changes in

the land use laws.” Lakeview Dev. Corp. v. City of S. Lake

Tahoe, 915 F.2d 1290, 1295 (9th Cir. 1990). Therefore, an

interest in a particular land use does not constitute a protected

property interest, unless the interest has vested in equity based

on principles of detrimental reliance.

Plaintiffs’ claims to a land use property right under Measure 37 fail for two reasons. First, these claims are not ripe.

See Williamson Cnty. Reg’l Planning Comm’n v. Hamilton

BOWERS v. WHITMAN 253
Bank, 473 U.S. 172 (1985). In Williamson, a land developer

had received the Planning Commission’s approval to develop

a tract of land into a residential area consistent with the county’s zoning regulations. Id. at 177. However, the regulation

changed a few years later and the Commission refused to

approve further development inconsistent with the new regulations. Id. at 179-80. The developer brought an action against

the Commission, alleging that a taking had occurred. Id. at

182. The Supreme Court held that the developer’s claim for

a taking was not ripe, because he had not “obtained a final

decision regarding the application of the zoning ordinance and

subdivision regulations to its property, nor had he utilized the

procedures Tennessee provides for obtaining just compensation.” Id. at 186. 

[13] Similarly in the present case, the Plaintiffs have not

exhausted the available alternative remedies under Measure

49 to determine which land use options are currently available

to them. Measure 49 claims to preserve any Measure 37 land

use claims if the property owner has “a common law vested

right . . . to complete and continue the use described in the

waiver.” Compiled as a note after § 195.305. Plaintiffs also

have not sought to determine whether their right to develop

their land pursuant to their Measure 37 waivers have vested

in equity pursuant to Oregon’s Holmes factors. Holmes, 265

Or at 196-97.5 Thus, under a land use characterization of

Plaintiffs’ Measure 37 interest, these claims are not ripe,

because Plaintiffs still have potential remedies available under

Oregon state law.

[14] Second, even if Plaintiffs’ claims were ripe, Plaintiffs

have not alleged that they detrimentally relied on their Measure 37 land-use waivers. As a result, it is unlikely that Plaintiffs’ claims have vested under this theory. 

5Under Holmes, Plaintiffs’ Measure 37 property interest in a certain

type of land use can vest if the particular Plaintiff has commenced construction that is substantial or has spent substantial costs toward completing the job. Holmes, 265 Or at 196-97. 

254 BOWERS v. WHITMAN
B. The enactment of Measure 49 did not violate 

substantive due process.

Plaintiffs argue that Measure 49 infringes on fundamental

rights, thus triggering heightened scrutiny under our substantive due process jurisprudence. Oregon answers that there is

no authority for the proposition that economic rights are fundamental; therefore this claim ought to be subjected to rational basis scrutiny. See Washington v. Glucksberg, 521 U.S.

702, 767 n.9 (1997) (Souter, J., concurring in the judgment)

(requiring as a threshold requirement for heightened scrutiny

“that the interest (or, as the Court puts it, the right) be fundamental before anything more than rational basis justification

is required”). We agree with Oregon. 

[15] Retroactive legislation does not violate substantive

due process, “[p]rovided that the retroactive application of a

statute is supported by a legitimate legislative purpose furthered by rational means . . . .” Pension Benefit Guar. Corp.

v. R. A. Gray & Co., 467 U.S. 717, 729 (1984); see also Dodd

v. Hood River Cnty., 59 F.3d 852, 864 (9th Cir. 1995) (“There

is no denial of substantive due process if the question as to

whether the government acted arbitrarily or capriciously is ‘at

least debatable.’ ” (citation omitted)).

[16] Measure 49’s purpose is to “modify . . . Measure 37

(2004) to ensure that Oregon law provides just compensation

for unfair burdens while retaining Oregon’s protections for

farm and forest uses and the state’s water resources.” Or. Rev.

Stat. § 195.301(2). Based on the high number of claims that

had been filed during the three years Measure 37 was in

effect, it was rational for the legislature and voters to determine that the cost of Measure 37 was too great, either to the

taxpayer or in terms of natural resources. Furthermore, Measure 49 still seeks to provide alternative remedies to Measure

37 claimants. Thus, Measure 49 is based on a rational government interest and does not violate substantive due process.

BOWERS v. WHITMAN 255
C. The enactment of Measure 49 did not create 

unconstitutional disparate treatment.

Bowers Plaintiffs6 argue that Measure 49 imposes unequal

results that lack any rational relationship to its purpose, and

it therefore violates the Equal Protection Clause under the

Fourteenth Amendment. Because the regulatory classification

under Measure 49 is not based on a suspect class, and because

Measure 49 does not implicate fundamental rights (as discussed above), this classification must be evaluated under the

“rational basis” standard. See Nordlinger v. Hahn, 505 U.S.

1, 10 (1992). After review, we conclude that the classification

is rational. 

Under rational basis review, the Equal Protection Clause is

satisfied if: (1) “there is a plausible policy reason for the classification,” (2) “the legislative facts on which the classification is apparently based rationally may have been considered

to be true by the governmental decisionmaker,” and (3) “the

relationship of the classification to its goal is not so attenuated

as to render the distinction arbitrary or irrational.” Id. at 11.

[17] Measure 49 seeks to balance the protection of property owners’ interests with the preservation of Oregon’s natural resources. These both constitute legitimate state interests.

Measure 49 changes the calculus of the balance that was previously utilized under Measure 37, but this change was not

irrational, “[g]iven the number of Measure 37 claims that

were being processed, and the potential costs of those pending

claims.” Powell v. Or. Dep’t Land Cons. & Dev., 243 P.3d

798, 804 (Or. App. 2010). Essentially, “the legislature and the

6The Citizens Plaintiffs raised this argument for the first time on appeal.

Generally, we will not consider an issue raised for the first time on appeal.

Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). Although there are

exceptions to this rule, see id., this case does not fall within any of the

exceptions. Therefore, this disparate treatment analysis is only applicable

to the Bowers Plaintiffs, because the Citizens Plaintiffs cannot now raise

this claim. 

256 BOWERS v. WHITMAN
voters decided that it was in the best interest of the state to

replace the remedies in all Measure 37 cases, pending and

future. Simply put, the retroactive application of Measure 49

was a rational response to the legitimate governmental concerns posed by Measure 37.” Id.

Plaintiffs argue that Measure 49 was irrational, because it

applied blanket standards for relief to landowners with diverse

situations, resulting in uneven distribution of the burden of

Measure 49. Plaintiffs also argue that Measure 49 is irrational,

because some claimants under Measure 37 actually did

receive an unaltered Measure 37 remedy in the form of monetary compensation whereas most claimants did not. See, e.g.,

English v. Multnomah Cnty., 238 P.3d 980 (Or. 2010)

(upholding a final judgment of monetary compensation for a

landowner under Measure 37). 

However, the Supreme Court has also said, “[i]n the area

of economic and social welfare, a State does not violate the

Equal Protection Clause merely because the classifications

made by the law are imperfect.” Dandridge v. Williams, 397

U.S. 471, 485 (1970). As long as the classification has some

rational basis, it will “not offend the Constitution simply

because the classification is not made with mathematical

nicety or because in practice it results in some inequality.”

Fritz, 449 U.S. at 175 (internal quotation marks omitted).

[18] In this case, it was not irrational for Oregon to attempt

to provide partial remedies under Measure 49, even if these

remedies did result in some differences of treatment. The legislature had discretion to determine how best to balance the

competing needs of providing some remedies for claimants

while still protecting Oregon’s resources. Furthermore, there

was a rational reason that some claimants received a remedy

while others did not. The claims that led to a remedy became

final before Measure 49 was passed, and so the Oregon

Supreme Court held that such a claim was “extinguished”

once it was “reduced to a final judgment.” English, 238 P.3d

BOWERS v. WHITMAN 257
at 988. Therefore, because Measure 49 applies to all Measure

37 claims that existed at the time of its enactment and is rationally related to legitimate state interests, Plaintiffs’ equal protection claim fails.

CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED. 

258 BOWERS v. WHITMAN