* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable J. Thomas Greene, Senior District Judge, United States District Court for the District of Utah, sitting by designat ion. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 27 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

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

Plaintiff-Appellant,

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

ORDER AND JUDGMENT *

Before TACHAand BALDOCK , Circuit Judges, and GREENE , ** Senior District Judge.-2-

The panel previously abated this appeal in deferenc e to related state court eminent domain proceedings which might have obviate d 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 Oklah oma appellate courts, that proceeding is now back in the trial court awaiting redetermination. Upon further review of the record on appeal, the br iefs, and the parties’ subsequent submissions, the panel concludes that pr oper grounds for immediate disposition of the appeal are present but have beenobscured by the presence of many overlapping/redundant claims which are not rip e 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 jurisd iction, is without prejudice.
Background Oklahoma’s statutory scheme for eminent domain, Okl a. 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 pro cedure may be outlined in pertinent part by the following steps: (1) the condemnor corporation applies to the district judge, with notice to the landowner, f or selection of a three-person commission; (2) the commissioners inspect the prope rty, assess just compensation for the injury involved, and file a report with the clerk of the court, which is-3-

promptly forwarded to interested parties; (3) if th e condemnor pays the assessed sum, it may take immediate possession consistent wi th its proposed use, though all parties retain the right to challenge the commi ssion’s report; (4) review may be sought in the district court by filing written exce ptions to the report or a demand for jury trial; (5) the district court’s final judg ment (approving compensation or denying condemnation) is subject to appeal, but suc h review shall not delay the condemnor’s use of the property, if approved, so lo ng as the assessed compensation has been paid. Defendant Public Service Company of Oklahoma (PSO) commenced an eminent domain proceeding to condemn and acquire aneasement 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 con cluded, plaintiff sought review in state court both by exception and jury demand, a lleging that the proposed taking was not for a public use nor reasonably nece ssary for the use claimed. Plaintiff also challenged the amount of compensatio n assessed. The trial court ruled in favor of PSO, and plaintiff appealed. He also sought interim equitable relief from the Oklahoma Supreme Court, which denie d his requests. While the appeal was pending, PSO completed the railroad spurand put it in use (particularly by defendant Burlington Northern Rail road Company (BN), as PSO’s licensee). When plaintiff threatened to interfere with the operation, PSO obtained-4-

an injunction against him. Ultimately, the Oklahom a Supreme Court reversed the judgment of condemnation, holding that the trial co urt 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 tr ial court refused to dissolve the existing injunction against plaintiff’s interfe rence with PSO’s operation, and the Oklahoma appellate courts have affirmed that ru ling. However, the trial court has yet to issue any final decision on the merits o f 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 id entified the crux of the case to be plaintiff’s assertion that he was constitutional ly 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, n o 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 possessionthrough such proceedings, BN-5-

has no derivative licensee defense to the trespass claim. Finally, he contends that the state court order enjoining his interference wi th 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 m erit. 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. A s 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 pertine nt 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 r ipeness rule encompasses other constitutional claims which fall squarely within th e primary purview of the JCC in this context, such as the due process, equal protec tion, and access-to-courts infirmities plaintiff alleges with respect to the s tate eminent domain proceeding.
See Bateman v. City of West Bountiful , 89 F.3d 704, 709 (10th Cir. 1996)-6-

(collecting numerous Tenth Circuit cases). Thus, p ursuit of such closely-related objections must await the ripening of the predominant JCC claim. Id. However, one condemnation-related claim here clearl y falls outside the Williamson bar. In addition to the objections to his own pro ceeding, plaintiff appears to raise a generalized facial challenge to the state eminent domain scheme itself, for permitting any condemnor to take immedi ate possession upon payment of an administratively-determined compensation befo re 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 sche me]” is immediately adjudicable. See Yee v. City of Escondido , 503 U.S. 519, 533-34 (1992). This evidently was, in fact, the claim addressed bythe district court, which held that predeprivation hearings are not constitut ionally required in the eminent domain context. We agree. In addition to the auth orities 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-7-

pretaking hearing in this context as “impos[ing] ne w 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 sati sfied by a reasonable and adequate provision for obtaining compensation afterthe taking, the State’s action here is not ‘complete’ until the State fails to pro vide 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 s cheme (particularly the immediate-possession provision of § 53(C)) invalid, have broadly stated that “the establishment of the right to condemn is a prerequi site 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 c ourt’s language with its evident acceptance of § 53(C). Thus, the legislative authorization of imm ediate 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-8-

condemnation proceedings and had its right to conde mn 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 Ok lahoma courts that it is warranted in his case. Thus, the state courts’ con struction and assessment of the eminent domain scheme is consistent with applicable federal precedent, and neither of these bodies of authority support plaint iff’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 condemnationprocess 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 intan gible due process right that was substantively distinct f rom JCC protections was not subsumed under Williamson ripeness rule), with J. B. Ranch, Inc. , 958 F.2d at-9-

309 (holding Williamson applicable to due process claim that fell squarelywithin compass of JCC protections). However, we hold thatdismissal 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 man ner with the construction, maintenance and operation of [PSO’s] railroad spur. ” Appellants’ Supp. App. at 21. There is nothing facially speech-sensitive abo ut 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 enf orce the injunction after this appeal was filed. In that proceeding, which has no t 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 cond emnation order, plaintiff “is restoring [his] fence line around [the disputedeasement] and posting ‘NO TRESPASSING’ signs.” Id. at 22. Whether plaintiff has a cognizable claim under the First Amendment on this basis is not a qu estion properly before this panel.
Trespass The district court explained that its rejection of plaintiff’s constitutional challenges to the eminent domain proceedings mootedany remaining claims and, accordingly, dismissed the entire case. As plainti ff recognizes, his claim against-10-

BN for trespass obviously stands or falls with the legitimacy of the eminent domain proceeding from which the railroad derives i ts status as licensee. Since any further challenges to that proceeding are not c urrently ripe for adjudication, the district court’s dismissal of the action shouldbe affirmed.
State Proceedings - Status Reports Status reports submitted by plaintiff reflect some unfavorable rulings issued in the ongoing eminent domain proceedings. In part icular, plaintiff complains of the Oklahoma Supreme Court’s March 22, 1999 denial of his mandamus petition seeking to disqualify the state trial judge, and th e 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 wer e somehow sufficient to give rise to a distinct, immediately actionable constitutiona l wrong, at this point such a claim would most appropriately be brought in distri ct court, not interjected into this pre-existing appeal.

Conclusion-11-

Accordingly, we affirm the district court’s dismiss al 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 fo r the Northern District of Oklahoma is AFFIRMED. All pending motions are d enied as moot.

Entered for the Court

Deanell Reece Tacha Circuit Judge