REVISED, JANUARY 24, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-51013

 

VULCAN MATERIALS COMPANY,

Plaintiff-Appellant,

versus

THE CITY OF TEHUACANA,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Western District of Texas

 

January 23, 2001

Before GARWOOD, HIGGINBOTHAM and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-Appellant Vulcan Materials Company (“Vulcan”), a

New Jersey corporation with its principal place of business in

Birmingham, Alabama, brought this action against DefendantAppellee the City of Tehuacana (“the City”), a municipality in

Limestone County, Texas, alleging that a 1998 ordinance passed by

the City Council forbidding certain quarrying or mining

activities violates Vulcan’s rights under both the United States
1Ordinance No. 12898 states, in relevant part:

Section I. It shall be unlawful for any person, company,

entity, or corporation to engage in the following activities

within the city limits of the City of Tehuacana, Limestone

County, Texas:

A. the quarrying or mining of rock utilizing blasting

operations or use of explosives, or surface mining;

B. the use of explosives for the purpose of blasting rock,

or in connection with mining or quarrying operations;

C. the use of heavy equipment in connection with quarrying

or mining operations within the city limits of

Tehuacana, Limestone County, Texas;

D. the use of explosives for any commercial or industrial

activity or for any other reason except the use of

fireworks in connection with celebrations as may be

allowed by law from time to time.

2

and Texas Constitutions. Vulcan appeals the district court’s

refusal to exercise jurisdiction over its state constitutional

and federal declaratory judgment claims as well as the dismissal

of its federal substantive due process and equal protection

claims. We affirm in part and reverse and remand in part.

Facts and Proceedings Below

In October 1997, Vulcan leased the single limestone quarry

that is the subject of this action. The quarry consists of

mining areas, reserves, and processing facilities. Part of the

quarry lies within the Tehuacana city limits. Vulcan claims it

made a substantial investment in acquiring the right to operate

the quarry, reasonably expecting to mine the entire quarry,

including that part within the City limits. On December 8, 1998,

the City adopted an ordinance1 that prohibits Vulcan from

conducting certain mining or quarrying operations within the City
3

limits.

On December 15, 1998, Vulcan brought this action against the

City, seeking a declaratory judgment pursuant to 28 U.S.C. §

2201, injunctive relief pursuant to 28 U.S.C. § 2202 and 42

U.S.C. § 1983, and damages pursuant to 42 U.S.C. § 1983. 

Specifically, Vulcan asserted a federal takings claim, a state

inverse-condemnation (takings) claim, and state and federal

substantive due process, procedural due process, and equal

protection claims. Vulcan also sought a declaratory judgment

that a 1981 ordinance of the City forbidding the mining of

minerals does not apply to its activities. Jurisdiction over the

federal claims was predicated upon 28 U.S.C. § 1331, while

jurisdiction over the state claims was based upon 28 U.S.C. §

1367 and, alternatively, 28 U.S.C. § 1332.

The City filed a motion to dismiss Vulcan’s complaint for

want of subject matter jurisdiction and for failure to state a

claim upon which relief can be granted under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). On August 20, 1999, the

district court dismissed Vulcan’s federal takings claim as not

ripe for adjudication under Rule 12(b)(1) and Vulcan’s remaining

federal constitutional claims under Rule 12(b)(6). The district

court also declined to exercise jurisdiction over Vulcan’s state

constitutional claims and its federal declaratory judgment claim

regarding the 1981 ordinance.
4

Vulcan now appeals the district court’s refusal to exercise

jurisdiction over its state constitutional and federal

declaratory judgment claims as well as the dismissal of its

federal substantive due process and equal protection claims. 

Vulcan does not appeal the dismissal of its federal takings claim

or its federal procedural due process claim.

Discussion

I. Inverse-Condemnation

The district court refused to exercise diversity

jurisdiction over Vulcan’s Texas law inverse-condemnation claim,

reasoning that our decision in Samaad v. City of Dallas, 940 F.2d

925 (5th Cir. 1991) prevents the exercise of diversity

jurisdiction over state takings claims. In Samaad jurisdiction

was based entirely on sections 1331 and 1367; no diversity

jurisdiction was present or asserted. 

The Samaad plaintiffs claimed that grand prix automobile

racing in a public park owned by the City of Dallas was so

disruptive that it effected a taking of their property without

just compensation. Id. at 928. The Samaad district court

granted defendants’ motion for summary judgment as to the federal

takings claim and dismissed the state law inverse-condemnation

claim, asserted under section 1367, without prejudice. Id. The

Samaad plaintiffs appealed the summary judgment order but

apparently did not appeal the dismissal of the state takings
5

claim. Id. We held that the district court lacked jurisdiction

to hear the federal takings claim because that claim was not ripe

for adjudication. Id. at 934-35.

The Supreme Court established in Williamson County Reg’l

Planning Comm’n v. Hamilton Bank of Johnson City, 105 S.Ct. 3108,

3119 (1985), that a federal takings claim does not ripen until

just compensation is denied. Therefore, for a federal takings

claim to become ripe, the plaintiff is required to seek

compensation through the procedures the state has provided unless

those procedures are unavailable or inadequate. Id. at 3120-22. 

The Samaad plaintiffs argued that this requirement could be

satisfied by simultaneously bringing federal and state law

takings claims, with the district court resolving the state claim

first. Samaad, 940 F.2d at 934. We held that: 1) Williamson

County could not be satisfied by simultaneously bringing federal

and state takings claims; and 2) there could be no section 1367

supplemental jurisdiction over the state law claim since the

federal claim that provided the sole basis of supplemental

jurisdiction was not ripe. Id.

We do not think Samaad prevents district courts from

exercising diversity jurisdiction over state takings claims. 

Samaad was not a diversity case. Samaad apparently involved an

appeal only of the district court’s disposition of the federal

takings claim. In contrast, Vulcan appeals only the dismissal of
2In Ankenbrandt v. Richards, 112 S.Ct. 2206 (1992), the

Supreme Court expounded upon the domestic relations exception to

diversity jurisdiction. The exception is a narrow one, generally

only prohibiting federal courts from issuing divorce, alimony, or

child custody decrees. Id. at 2215. The bases for the

continuing endurance of the domestic relations exception are: 1)

Congress’s apparent acceptance of it for over 100 years following

the exception’s original pronouncement in Barber v. Barber, 62

U.S. 582 (1859); coupled with 2) Congress’s failure to mention

the exception in 28 U.S.C. § 1332. Ankenbrandt, 112 S.Ct. at

2213. The Court reasoned that § 1332's “all civil actions”

language was not intended to embrace cases wherein a federal

court would have to issue a divorce, alimony, or child custody

decree. Id.

In contrast, there is no long tradition of excepting state

takings claims from diversity jurisdiction. Thus, no similar

argument can be made that Congress intended to exclude such

causes of action when it enacted § 1332. Ankenbrandt makes clear

that exceptions to § 1332 are not to be carelessly implied. 

Surely it is most likely that if there were any other exceptions

to section 1332, Ankenbrandt would have discussed them. Recall

that Williamson County was decided seven years prior to

Ankenbrandt. There is simply no authority for the novel

proposition that “all civil actions” does not include state law 

takings claims.

6

its state law inverse-condemnation claim. Samaad only stands for

the proposition that the Williamson County ripeness requirement

for a federal takings claim is not satisfied by simultaneously

bringing a state law takings claim. Vulcan’s position on appeal

is not that it is entitled to ripen a federal takings claim by

simultaneously bringing a state law takings claim. It does not

appeal the dismissal of the federal takings claim. Vulcan only

asks that the same rules of diversity jurisdiction apply to its

state law inverse-condemnation claim as apply to any other state

law claim a plaintiff might bring in diversity.2 If diversity is

lacking, the second Samaad reason precludes the district court
7

from hearing the state takings claim–but that is not the case

here for diversity is present. We hold that a plaintiff may

bring a state law takings claim in federal district court if the

traditional requirements for diversity jurisdiction are

fulfilled.

This holding is consistent with Searl v. School-Dist. No. 2,

in Lake Co., Colorado, 8 S.Ct. 460 (1888), in which the defendant

property owner was allowed to remove after a school district sued

under Colorado law to condemn his property for public use. We

also recognize our agreement with the Tenth Circuit, which has

held that a plaintiff may bring a state law takings claim in

diversity, though apparently may not use that claim to ripen a

federal takings claim brought in the same proceeding. SK Finance

SA v. La Plata County, Board of County Commissioners, 126 F.3d

1272, 1276 (10th Cir. 1997). In reaching this conclusion, the

Tenth Circuit misconstrued our decision in Samaad as requiring

that state law takings claims be brought only in state court. As

we have explained, the first reason in Samaad only forbids a

plaintiff from ripening a federal takings claim by simultaneously

bringing a state takings claim. We so note only because the

Tenth Circuit’s misconstruction was relied upon by the district

court in refusing to exercise jurisdiction over Vulcan’s Texas

law inverse-condemnation claim.

The City argues that to allow a district court to hear a
3We are not unmindful of our dictum in Samaad that “[t]he

local entity from which a plaintiff seeks recovery should be the

one to deny just compensation.” Samaad, 940 F.2d at 934. We

think the Samaad panel’s first reason for finding the Williamson

County ripeness requirement unmet rested wholly on the fact that,

at the time the federal claim was pleaded, compensation under the

relevant state law scheme had not been denied. Nor are we

disturbed by similar dictum in John Corp. v. City of Houston, 214

F.3d 573, 581 & n.15 (5th Cir. 2000), which involved the exact

8

state takings claim in diversity is to risk the danger of a

district court reviewing its own decision regarding the state

claim to determine if that decision denied the plaintiff just

compensation. We think that this would almost never be a

problem. Assume that, to prevent res judicata from impairing its

rights, a plaintiff in diversity pleads both state and federal

law takings claims. The district court, properly following

Samaad, dismisses the federal takings claim. Then, following our

holding today, proceeds to try the state law takings claim. If

the plaintiff wins, no difficulty is presented because, under the

doctrine of collateral estoppel, the issue of damages may not be

relitigated. If the state remedy is inadequate, Williamson

County and Samaad allow the plaintiff to bring the federal law 

takings claim without first bringing the state claim. If the

plaintiff loses, the doctrine of collateral estoppel prevents

relitigation of any issues determined in the first proceeding. 

It would only be in the rarest of cases wherein the denial of

compensation was due to some issue peculiar to state law that

there could ever be a second trial.3 This faint possibility is
ripeness question presented in Samaad. Nothing in Williamson

County requires that just compensation from the state be sought

in state court for the federal claim to ripen upon resolution of

the state claim. Thus, leaving open the possibility of a second

trial in an extremely rare case does not run afoul of any holding

in Samaad.

4We do not deny the theoretical abstract possibility that a

state law takings claim, though “ripe” for state law purposes,

might conceivably nevertheless actually be so unripe, speculative

and contingent as not to present an Article III case or

controversy. Such a case would presumably not be within the

district court’s jurisdiction, under either § 1332 or § 1367. 

All we are holding is that the mere fact that a state law takings

claim has not been pursued to final judgment in state court does

not, of itself, necessarily always render it “unripe” for

purposes of federal court jurisdiction under § 1332. Here there

is nothing to suggest a lack of actual ripeness in the state law

takings claim other than the fact that it has not been pursued in

state court. It is not claimed, nor does the record suggest,

that the 1998 ordinance was not final and effective or that there

is any provision for suspending or delaying it or for any

variance from or exception to it (or that there is any special or

particular or administrative provision for compensation for harm

caused by the ordinance; or that there is any provision at all

for such compensation other than any generally available pursuant

to any inverse condemnation suit under the Texas constitution).

9

not enough to justify departure from the normal rules governing

federal diversity jurisdiction over state law claims. See supra

note 2.

Finally, it appears that under Texas law Vulcan’s inversecondemnation claim is ripe for adjudication. Trail Enterprises,

Inc. v. City of Houston, 957 S.W.2d 625, 631-32 (1997).4

Accordingly, we find that the district court erred when it

dismissed Vulcan’s state law inverse-condemnation claim.

II. Federal Substantive Due Process

Vulcan’s complaint alleges the City violated its rights
10

under the Due Process Clause of the Fourteenth Amendment in that

the 1998 ordinance is arbitrary and unreasonable and that the

means employed by the ordinance lack a real and substantial

relation to the goal the City seeks to achieve. The district

court dismissed this claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). This court reviews such dismissals de novo. 

Fernandez-Montes v. Allied Pilots Association, 987 F2d. 278, 284

(5th Cir. 1993). When deciding a motion to dismiss under Rule

12(b)(6), the district court must accept the plaintiff’s factual

allegations as true and resolve doubts as to the sufficiency of

the claim in the plaintiff’s favor. Id. The complaint should

not be dismissed unless it appears “beyond a doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Id. at 284-85 (quoting Conley v.

Gibson, 78 S.Ct 99 (1957)) (emphasis in original).

Vulcan argues that its pleadings properly allege a due

process violation under Shelton v. City of College Station, 780

F.2d 475 (5th Cir. 1986). While it is true that Vulcan’s

complaint faithfully recites the Shelton standard, it is equally

true that it does no more than that. When a plaintiff claims

that a city ordinance banning the use of explosives inside the

city limits is arbitrary and unreasonable, having no substantial

relation to the city’s legitimate objectives, more is required

from the complaint than “legal conclusions masquerading as
5The plaintiffs alleged that, after declaring a financial

emergency, the defendant Board of Trustees “terminated the

contracts of eighty-eight employees without regard to any uniform

policy.” Russell, 736 F.2d at 288.

11

factual conclusions.” Fernandez-Montes, 987 F.2d at 284. Here,

the complaint did not contain a short and plain statement of the

claim, only legal conclusions of such generality as to fail to

give fair notice. Vulcan could have sought leave to amend its

complaint, but chose not to.

Vulcan maintains that Russell v. Harrison, 736 F.2d 283 (5th

Cir. 1984), supports the viability of its substantive due process

claim. Russell involved a different type of pleading problem

than exists here. The Russell plaintiffs failed to include the

magic words “arbitrary and capricious” in their complaint. Id.

at 288. Nevertheless, we held the complaint sufficient because

the underlying facts5 pleaded in the complaint were adequate to

provide the defendants “fair notice of what the plaintiff’s claim

is and the grounds upon which it rests.” Russell, 736 F.2d at

288 (quoting Conley, 78 S.Ct. at 103). Vulcan has not given the

City proper notice of its claim as required by Rule 8(a)(2) Fed.

R. Civ. Proc. For example, Vulcan advances that the ordinance

bears no real and substantial relation to its objectives, yet the

complaint does not suggest how this is so or allege any facts

that tend to support this gratuitous conclusion of law. See,
6Vulcan does not allege, or allege any facts tending to

suggest, any particular motive on the part of the City Council. 

There is no allegation of any facially unconstitutional motive.

We also note the cases Vulcan cites for the proposition that

a motive inquiry should be part of rational basis review do not

concern legislative decisions, but rather administrative actions

enforcing existing laws against a specific landowner. See

Acierno v. New Castle County, 2000 WL 718346, *4 (D.Del.)

(discussing the inapplicability of Sameric Corporation of

12

e.g., Wright & Miller, Federal Practice and Procedure: Civil 2d

§ 1357 at 319-20 (“. . . the court will not accept conclusory

allegations concerning the legal effect of the events plaintiff

has set out if these allegations do not reasonably follow from

his description of what happened . . .”). Thus, Vulcan asks for

much more than Russell pleading leniency.

Finally, Vulcan contends that it is entitled to discovery to

uncover evidence revealing the City’s motivation for enacting the

ordinance. Essential to this position is that the enactment of

the ordinance be reviewed as an adjudicative, rather than a

legislative, decision. See Shelton v. City of College Station,

780 F.2d 475, 479-84 (5th Cir. 1986). Shelton involved the

denial of a variance from a zoning ordinance by a board appointed

by the city’s elected lawmakers. Id. We reviewed this decision

under the legislative model. Id. Clearly, then, an ordinance

approved by the Tehuacana City Council that applies to all

entities acting within the city limits must also be reviewed as a

legislative act. This means that courts are free to hypothesize

a rational basis for the action.6 That the ordinance states as a
Delaware, Inc. v. City of Philadelphia, 142 F.3d 582 (3rd Cir.

1998), DeBlasio v. Zoning Bd of Adjustment for the Township of

West Amwell, 53 F.3d 592 (3rd Cir. 1995), and Midnight Sessions,

Ltd. v. City of Philadelphia, 945 F.2d 667 (3rd Cir. 1991), to

legislative decisions).

13

reason for its enactment the intention of a rock quarry

(undoubtedly Vulcan) to begin blasting operations does not call

into question its legislative character. The ordinance applies

to any party who would employ the prohibited means to quarry

within the city limits, and that Vulcan’s impending quarrying may

have provided the entire impetus behind the ordinance does not

transform it into an adjudicative decision. Thus, Vulcan’s

federal substantive due process claim was properly dismissed.

III. Federal Equal Protection

Vulcan’s complaint also alleges that, in enacting the

ordinance, the City arbitrarily singled out its activities in

violation of the Equal Protection Clause of the Fourteenth

Amendment. The district court dismissed this claim pursuant to

Federal Rule of Civil Procedure 12(b)(6).

It is well-established that, as a general matter, the Equal

Protection Clause of the Fourteenth Amendment requires that all

similarly situated persons be treated substantially alike. Rolf

v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996). Unless

the alleged classification is inherently suspect or affects

fundamental rights, rational basis review is appropriate. 

Jackson Court Condominiums v. City of New Orleans, 874 F.2d 1070,
14

1079 (5th Cir. 1989). Vulcan argues that the ordinance does

classify between similarly situated parties–those who utilize

heavy equipment for quarrying operations (covered by the

ordinance) and those who employ heavy equipment for other

purposes (not covered by the ordinance). Vulcan analogizes to

Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993), wherein a

curfew ordinance was found to distinguish between two relevant

groups–those age seventeen or older and those under age

seventeen.

Vulcan is correct that the ordinance only prohibits the

utilization of heavy equipment in connection with quarrying or

mining. However, we believe a more reasonable characterization

of the ordinance is that it bans only that quarrying involving

the use of blasting, explosives, surface mining, or heavy

equipment. The focus of the ordinance is to proscribe only those

aspects of quarrying that are likely to implicate the public’s

health, safety, morals, or general welfare. The ordinance

applies to all actors within the city limits, not just Vulcan. 

That everyone is forbidden to engage in certain activities is not

the same as treating similarly situated actors differently. Even

if the ordinance could be construed as classifying between those

who use heavy equipment for quarrying and those who use heavy

equipment for other purposes, Vulcan’s complaint still would not

have stated an equal protection claim. It is well-settled that
7We also note that Vulcan appears to (properly) concede that

the purposes listed in the preamble of the ordinance (avoiding a

detrimental impact on the lives of citizens from the vibration &

noise of blasting, noise from heavy equipment, injury or death

from overfly of rock, etc.) are legitimate and consistent with

the public’s health, safety, morals, or general welfare. But

Vulcan asserts that, after recognizing the legitimacy of the

City’s goals, the district court failed to consider the extent to

which the 1998 ordinance advances them. Notwithstanding the

district court’s silence on this issue, we think it is

sufficiently obvious that the ordinance’s prohibition of mining

or quarrying activities involving blasting, explosives, surface

mining, or the use of heavy equipment within the City limits is

rationally related to the City’s stated objectives. As discussed

in Part II, supra, Vulcan failed to plead any facts that tend to

diminish the obviousness of this rational relationship.

15

“as long as a classification is rationally related to a

legitimate state objective, a legislature is allowed to attack a

perceived problem piecemeal.” Jackson Court Condominiums, 874

F.2d at 1079. As discussed in Part II, supra, Vulcan has failed

to properly plead any facts tending to suggest that the ordinance

is not rationally related to a legitimate state interest.7 Thus,

Vulcan’s federal equal protection claim was properly dismissed.

IV. Remaining Claims

After dismissing most of Vulcan’s federal claims and its

state law inverse-condemnation claim, the district court

summarily dismissed Vulcan’s 1981 ordinance declaratory judgment

claim as well as all of Vulcan’s remaining state law claims. The

only stated reason for these dismissals was that the claims

involved “a determination of state law and/or causes of action

which the Court declines to review as there are no remaining
16

federal claims.” It is not clear if the district court was

overlooking the section 1332 allegations and the obvious

diversity of the parties or if it believed that its refusal to

hear Vulcan’s claims was somehow justified by reasons not

appearing in the opinion.

A. State Law Claims

The district court abused its discretion when it dismissed

Vulcan’s state law substantive due process, procedural due

process, and equal protection claims merely because they involved

state law causes of action. The purpose of 28 U.S.C. § 1332 is

to allow federal courts to resolve such state law claims when, as

here, the requirements of 28 U.S.C. § 1332 are met. Unless there

is a legitimate reason to abstain, federal courts “cannot

abdicate their authority or duty in any case in favor of another

jurisdiction.” New Orleans Public Service, Inc. v. Council of

the City of New Orleans, 109 S.Ct. 2506, 2513 (1989) (quoting

Chicot County v. Sherwood, 13 S.Ct. 695 (1893)); see also Charles

Quackenbush, California Insurance Comm’r. v. Allstate Ins. Co.,

116 S.Ct. 1712, 1720-21, 1727 (1996). There are four general

categories of abstention:

“(1) Pullman-type abstention, to avoid decision of a

federal constitutional question where the case may be

disposed of on questions of state law; (2) Burford-type

abstention, to avoid needless conflict with the

administration by a state of its own affairs; (3)

abstention to leave to the states the resolution of

unsettled questions of state law; and (4) abstention to

avoid duplicative litigation, now frequently referred to
17

as Colorado River-type abstention.”

Wright, Miller & Cooper, Federal Practice and Procedure:

Jurisdiction 2d § 4241. We elaborated on the Burford and

Colorado River abstention doctrines in St. Paul Ins. Co. v.

Trejo, 39 F.3d 585 (5th Cir. 1994). As in Trejo, the court below

erred by refusing to hear Vulcan’s claims without explaining why

abstention was required.

B. 1981 Ordinance Declaratory Judgment Claim

28 U.S.C. § 2201 provides, in relevant part: “In a case of

actual controversy within its jurisdiction . . . any court of the

United States . . . may declare the rights and other legal

relations of any interested party seeking such declaration . . .

.” The word “may” gives the district court more discretion to

refuse to hear a claim for declaratory judgment than the claims

addressed in Part IV.A, supra. Trejo, 39 F.3d at 590 & n.6, 7. 

However, Trejo clearly established that “the district court

should not dismiss . . . [a] declaratory judgment suit simply

because it does not involve a question of federal law.” Id. at

591 n.10. This appears to be exactly what the court below did. 

Trejo confirmed and restated the test for the discretionary

dismissal of declaratory judgment actions set forth in Travelers

Ins. Co. v. Louisiana Farm Bureau Fed’n, 996 F.2d 774 (5th Cir.

1993). The seven Trejo factors that must be considered on the

record before a discretionary, nonmerits dismissal of a
18

declaratory judgment action occurs are:

“[1)] whether there is a pending state action in which

all of the matters in controversy may be fully litigated,

2) whether the plaintiff filed suit in anticipation of a

lawsuit filed by the defendant, 3) whether the plaintiff

engaged in forum shopping in bringing the suit, 4)

whether possible inequities in allowing the declaratory

plaintiff to gain precedence in time or to change forums

exist, 5) whether the federal court is a convenient forum

for the parties and witnesses, . . . 6) whether retaining

the lawsuit in federal court would serve the purposes of

judicial economy, . . . [and 7)] whether the federal

court is being called on to construe a state judicial

decree involving the same parties and entered by the

court before whom the parallel state suit between the

same parties is pending.”

Trejo, 39 F.3d at 590-91. Trejo and Travelers held that “unless

the district court addresses and balances the purposes of the

Declaratory Judgment Act and the factors relevant to the

abstention doctrine on the record, it abuses its discretion.” 

Trejo, 39 F.3d at 590 (quoting Travelers, 996 F.2d at 778). 

Here, as in Travelers and Trejo, the district court did not

attempt to provide “even a cursory analysis of the pertinent

facts and law.” Travelers, 996 F.2d at 778. Thus, as in those

cases, the dismissal of Vulcan’s declaratory judgment action was

improper.

Conclusion

We AFFIRM the district court’s dismissal of Vulcan’s federal

substantive due process and federal equal protection claims for

failure to state a claim upon which relief can be granted under
8We likewise affirm the dismissal of Vulcan’s federal

takings claim and its federal procedural due process claim,

without reaching the merits of the dismissal of those claims,

because Vulcan has not on this appeal challenged the dismissal of

either of those claims.

19

Federal Rule of Procedure 12(b)(6).8 We VACATE the district

court’s dismissal of Vulcan’s state constitutional claims and its

federal declaratory judgment claim regarding the 1981 ordinance. 

We REMAND for proceedings consistent with this opinion.

AFFIRMED in part; REVERSED and REMANDED in part.