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Broughton Lumber Co. v. Columbia River Gorge Commission

filed: September 15, 1992.

BROUGHTON LUMBER COMPANY, PLAINTIFF-APPELLANT,
v.
COLUMBIA RIVER GORGE COMMISSION ET AL., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-89-234-JU. George E. Juba, Magistrate Judge, Presiding.

Before: J. Clifford Wallace, Chief Judge, and Alfred T. Goodwin, Circuit Judge, and Myron D. Crocker, District Judge.*fn* Opinion by District Judge Crocker.

Author: Crocker

CROCKER, District Judge:

Broughton Lumber Company (Broughton), appeals the district court's order dismissing its inverse condemnation action against the states of Oregon and Washington (the States) and its declaratory judgment and inverse condemnation actions against the Columbia River Gorge Commission (Commission) brought pursuant to 16 U.S.C. §§ 544-544p (1989). We affirm.

BACKGROUND

Broughton, a Washington Corporation, owns a 108.53 acre lot within the Columbia River Gorge National Scenic Area. In August, 1988, Broughton submitted a land use application to the Commission to subdivide its 108.53 acre lot into three parcels for residential development. The Executive Director (Director) of the Commission denied Broughton's application on October 25, 1988.

Broughton appealed the Director's decision to the Commission. On January 24, 1989, the Commission adopted the Director's findings of fact and Conclusions of law, upheld the Director's decision, and denied Broughton's appeal.

Broughton filed a civil complaint in the United States District Court for the District of Oregon against the Commission, the states of Oregon and Washington, the United States, and the Secretary of the United States Department of Agriculture (Secretary).*fn1

The district court dismissed Broughton's inverse condemnation action against the states of Oregon and Washington for lack of jurisdiction. Broughton appeals this decision, arguing that the Eleventh Amendment does not bar its cause of action because Congress has abrogated Oregon's and Washington's sovereign immunity and the Commission's waiver of immunity can be imputed to Oregon and Washington.

Next, the district court dismissed Broughton's declaratory judgment action against the Commission for lack of subject matter jurisdiction. The district court found that the Columbia River Gorge National Scenic Area Act (Gorge Act), 16 U.S.C. §§ 544-544p, did not confer jurisdiction upon the federal courts for actions involving the Commission. Broughton appeals this decision arguing that the federal courts have subject matter jurisdiction pursuant to the Gorge Act and 28 U.S.C. § 1331.

Finally, the district court dismissed Broughton's inverse condemnation claim against the Commission because it was unripe for judicial review. Broughton appeals this decision arguing that the States' waiver of sovereign immunity obviates the need for the ripeness requirement to be met, and the States' compensatory procedures for unconstitutional takings without just compensation are inadequate.

STANDARD OF REVIEW

This court reviews the existence of subject matter jurisdiction in the district court de novo. Allah v. Superior Court of California, 871 F.2d 887, 890 (9th Cir. 1989) (citing Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442, 229 U.S.P.Q. (BNA) 127 (9th Cir. 1986)).

Discussion

I

Broughton appeals the district court's dismissal of its inverse condemnation action against the states of Oregon and Washington. Broughton contends that its inverse condemnation action against the States is proper in federal court because Congress, by the terms of the Gorge Act, has abrogated the States' immunity. Additionally, Broughton argues that the Commission has waived its ...


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