Metzger v. Village of Cedar Creek, Neb., 03-3051.

• Citation: 370 F.3d 822
• Decision Date: 08 June 2004
• Docket Number: No. 03-3051.,03-3051.
• Parties: Katherine W. METZGER, Trustee of The Katherine W. Metzger Revocable Trust, Appellant, v. VILLAGE OF CEDAR CREEK, NEBRASKA; Robert Fuxa, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 822

370 F.3d 822

Katherine W. METZGER, Trustee of The Katherine W. Metzger Revocable Trust, Appellant, v. VILLAGE OF CEDAR CREEK, NEBRASKA; Robert Fuxa, Appellees.

No. 03-3051.

United States Court of Appeals, Eighth Circuit.

Submitted: March 8, 2004.

Filed: June 8, 2004.

Stephen P. Broghammer, argued, Omaha, NE (Thoms M. White, on the brief), for appellant.

Thomas J. Guilfoyle, argued, Omaha, NE, for appellee Fuxa.

Daniel J. Epstein, argued, Omaha, NE (James D. Garriott, on the brief), for appellee Village of Cedar Creek.

Before RILEY, MCMILLIAN, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

Katherine W. Metzger (Metzger) filed a complaint alleging a conspiracy by the Village of Cedar Creek, Nebraska (Cedar Creek), and Robert Fuxa (Fuxa) to construct an earthen levee along Turkey Creek. Turkey Creek divides Metzger's and Fuxa's properties. Metzger claims the levee violates federal regulations promulgated by the Federal Emergency Management Agency (FEMA) and adopted by Cedar Creek. The district court¹ dismissed without prejudice the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Metzger appeals, and we affirm.

Metzger owns a 329-acre farm in Cedar Creek. Fuxa develops land and owns approximately sixty acres adjacent to Metzger's farm. In 1998, Fuxa constructed an earthen levee along his side of Turkey Creek, purportedly with the consent of Cedar Creek. On July 6, 1999, Metzger demanded Fuxa remove the levee, and, on October 25, 1999, Metzger demanded Cedar Creek require Fuxa to remove the levee. Beginning in 2000, the Nebraska Natural Resources Commission and FEMA demanded immediate removal of the levee. Despite these demands, neither Fuxa nor Cedar Creek removed the levee. Since August 2002, heavy rains have caused flooding on Metzger's property allegedly due to the levee's diversion of water, damaging many acres of Metzger's farmland.

Metzger filed a lawsuit against Cedar Creek and Fuxa, alleging they conspired to take her property without just compensation in violation of (1) the Fifth and Fourteenth Amendments to the United States Constitution; (2) Article I, Section 21 of the Nebraska Constitution; and (3) common law. Cedar Creek and Fuxa moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to state a claim upon which relief can be granted, arguing Metzger's claims are not ripe under the Supreme Court's ruling in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The district court ruled Metzger's claims were not ripe under Williamson, and, thus, the district court lacked subject matter jurisdiction over the claims, because Metzger failed to allege she had pursued and exhausted her administrative remedies for just compensation under state law. The district court also found a constitutional violation had not yet occurred upon which relief can be granted. The district court dismissed Metzger's complaint without prejudice.

Metzger appeals the dismissal of her complaint, contending the district court erred in ruling it lacked jurisdiction over her claims because she failed to first avail herself of remedies provided under state law. Metzger also argues the district court erred in ruling she failed to state viable due process and equal protection claims. We review de novo a district court's dismissal based on a lack of subject matter jurisdiction, Hansen v. United States, 248 F.3d 761, 763 (8th Cir.2001), as well as a dismissal based on a failure to state a claim upon which relief can be granted, Eckelkamp v. Beste, 315 F.3d 863, 870 (8th Cir.2002).

Having reviewed Metzger's complaint, we conclude the district court correctly determined Williamson controls and requires Metzger to obtain a final decision by the state administrative entity charged with implementing the applicable regulations, or by the appropriate state court action, before her claims are ripe for adjudication. See Williamson, 473 U.S. at 186, 105...