Fideicomiso De La Tierra v. Fortuno

United States Court of Appeals
For the First Circuit

No. 09-2569

FIDEICOMISO DE LA TIERRA DEL CAÑO MARTIN PEÑA,

Plaintiff, Appellant,

v.

LUIS G. FORTUÑO, in his official capacity as Governor of the
Commonwealth of Puerto Rico; ANTONIO M. SAGARDÍA-DE JESÚS, in his
official capacity as Secretary of Justice of the Commonwealth of
Puerto Rico; MUNICIPALITY OF SAN JUAN; JORGE SANTINI in his
official capacity as the Mayor of the Municipality of San Juan;
AUTORIDAD DE ENERGÍA ELÉCTRICA; AUTORIDAD DE CARRETERAS; and
ADMINISTRACION DE TERRENOS,

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

Judith Berkan, with whom Mary Jo Méndez, Berkan/Méndez, Pedro
J. Saade, and the Clínica de Asistencia Legal Escuela de Derecho,
Universidad de Puerto Rico, were on brief for appellant.
Eliezer Aldarondo-Ortiz, with whom Eliezer A. Aldarondo-López,
Aldarondo & López Bras, Guillermo Somoza-Colombani, Attorney
General, Mercado & Soto Law Offices, Maymí, Rivera & Rotger,
P.S.C., Angel Rotger Sabat, and Francisco J. Amundaray were on
brief for appellees.

April 28, 2010
 LYNCH, Chief Judge. Plaintiff, Fideicomiso de la Tierra

del Caño Martin Peña (Land Trust of the Martin Peña Canal,

hereinafter "Fideicomiso"), an entity created by legislation,

brings an unusual Takings Clause claim. The Fideicomiso does not

attack the exercise of government condemnation or eminent domain

powers. Rather, the challenge is to Law 32, a legislative

amendment to an earlier statute enacted in 2004. That earlier

statute is Law 489, which the Fideicomiso correctly admits serves

a number of public purposes and which created the Fideicomiso. Law

489 was implemented by, inter alia, transferring to the Fideicomiso

title to certain lands that had originally belonged to public

agencies of the Commonwealth of Puerto Rico and the Municipality of

San Juan when Law 489 was enacted. Law 32 revoked the

Fideicomiso's title to those lands and returned title to those

Commonwealth and municipal public agencies.

The essence of the Fideicomiso's claim is that if it is

stripped of title to these lands and public agencies are reinvested

with title, those agencies cannot be trusted to carry out the

public purposes embodied in Law 489. The Fideicomiso styles this

as a claim that the transfer of lands back to public agencies does

not meet the "public use" requirement of the Takings Clause.

We order dismissal of the complaint.

In 2004, Puerto Rico enacted Law 489, the Martin Peña

Canal Special Planning District Integrated Development Act. See

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P.R. Laws Ann. tit. 23, § 5031-5066. Law 489's stated public

purpose is "to give priority attention to the environmental

restoration of the Martin Peña Canal and to rehabilitate and

revitalize the communities along its north and south banks" and to

thereby "promote a healthy relationship between the natural

environment and its surrounding city and communities, with a vision

of integrated development based on community empowerment." Id.

§ 5032.

The more specific purposes of the Martin Peña Canal

ENLACE (LIAISON) Project, as embodied in Law 489, include:

Environmental. To enable the rehabilitation of
the San Juan Bay Estuary, improve the quality
of its waters and the habitat of its fauna and
wildlife by broadening and dredging of the
Martin Peña Canal and a conservation strip
along both banks thereof.

Socio-economic. To improve the living
conditions of the approximately thirty
thousand (30,000) residents of the eight
communities located along both sides of the
Canal in the areas of public sanitation,
housing, ordinance and quality of the urban
spaces and the infrastructure.

Id. These stated purposes make it clear that one of the explicit

intentions of the Martin Peña ENLACE Project is to remove

conditions harmful to the public. Another explicit intention of

the project is "to foster an integrated community development

spearheaded by the members of the communities themselves." Id.

To implement these policy goals, Law 489 created two

entities, the Martin Peña ENLACE Project Corporation

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("Corporation"), id. § 5033, and the Fideicomiso, id. § 5048. The

Fideicomiso, as a land trust, was charged with administering and

developing certain lands in the canal area for the benefit of the

communities there. Id. One of its key goals was "[t]o contribute

toward the solution of the ownership rights problem of many

District residents through collective land-holding." Id.

The Corporation's mandate made it "responsible for

coordinating the implementation of all aspects of the ENLACE

Project; including . . . housing development, infrastructure, the

dredging and canalization of the Canal, as well as urban and socio-

economic development," and "[t]o guarantee mechanisms for citizen

participation in the planning and execution of the ENLACE Project

and promote community empowerment." See id. § 5033.

Toward those ends, Law 489 provided that title to any

lands in the canal area owned by the Commonwealth of Puerto Rico

and the Municipality of San Juan would automatically transfer to

the Corporation 160 days after the act became effective. Id.

§ 5045.1 The Corporation would then transfer these lands to the

Fideicomiso after regulations governing the Fideicomiso's

operations were established. Id. §§ 5046, 5048. Those regulations

were promulgated on October 21, 2008. See General Regulations for

1
There was an exception for a maritime terrestrial zone,
id. § 5045. Further, the Department of Housing was directed to do
title searches and, where appropriate, to provide registration of
ownership rights to residents of the area within one year. Id.
§ 5047.

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the Operation of the Caño Martin Peña Land Trust (hereinafter "Land

Trust Regulations"). The land transfer to the Fideicomiso was

completed with a formal deed on May 14, 2009, nearly five years

after Law 489 was enacted.

One month later, on June 18, 2009, Puerto Rico enacted

Law 32, a law which retroactively revoked only article 16 of Law

489, the article which had provided for the transfer of lands from

the Commonwealth and Municipality to the Corporation and ultimately

to the Fideicomiso. See Act of June 23, 2009, No. 32. Under Law

32, title to those lands was to revert back to the Commonwealth and

Municipality immediately. Id. art. 1. Law 32's stated purpose was

"[t]o amend Article 16 of Act No. 489 . . . to make viable that its

provisions be harmonized with other laws, and to clarify that

public domain lands are not transferrable." Id. pmbl. Most

pertinent to this case are these provisions:

Should the Corporation or the Fideicomiso, by
virtue of the Act, have attempted to or have
registered any Municipal property to its name,
the same is by the present revoked and without
effect and the title will immediately revert
to the Municipality of San Juan.

The properties of the Commonwealth of Puerto
Rico will be studied and evaluated by its
title holding dependencies to determine if
these remain titled to the agency....

Any of these properties which have been
transferred to the Corporation or Fideicomiso
will revert to the original Agency or
Titleholder in order to follow the legal
process previously mentioned.

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Id. art 1. The only lands the Corporation transferred to the

Fideicomiso came from the public agencies of the Commonwealth and

Municipality. Accordingly, the provision as to the reversion to

the original titleholder is inapplicable. Law 32 does provide that

public agencies may, under certain conditions, transfer title to

lands in the canal district to the Corporation. Id.

Two days after Law 32's enactment, the Fideicomiso

brought a civil rights suit in the federal district court of Puerto

Rico against various entities and officials of the Commonwealth and

the Municipality. The Fideicomiso primarily seeks to invalidate

Law 32 under the Takings Clause, though it also makes claims under

the Due Process Clause, the Contracts Clause, and the Ex Post Facto

Clause of the United States Constitution.2 Implementation of Law

32 has been stayed by this court in order to maintain the status

quo while the constitutional issues are addressed.

The Takings Clause of the Fifth Amendment applies to the

states and to Puerto Rico through the Fourteenth Amendment. See

Tenoco Oil Co., Inc. v. Dep't of Consumer Affairs, 876 F.2d 1013,

1017 n.9 (1st Cir. 1989). The Takings Clause sets two conditions

on the government's constitutional authority to take private

property: the government may take private property for "public

2
The Fideicomiso also challenges Law 32 under the parallel
due process and takings clauses of the Puerto Rican constitution.

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use," but it must provide just compensation when it does so. U.S.

Const. amend. V.

The Fideicomiso says that Puerto Rico lacks authority to

retake title to property recently transferred to the Fideicomiso,

and that the federal courts should enjoin defendants from

implementing Law 32 to do so, because any taking would not be for

"public use."3 It does not seek just compensation.

I. Facts

The events leading up to Law 32's enactment are

undisputed.

For centuries, water from the San José Lagoon emptied

into the ocean by way of the Martin Peña Canal, a shallow, narrow,

three-mile-long channel surrounded by mangrove swamps that runs

through the heart of the city of San Juan.

Until the mid-twentieth century, the area around the

canal was unsettled and undeveloped. The Great Depression hit

Puerto Rico's agricultural economy especially hard, and Hurricanes

San Felipe and San Ciprian, two of the worst in Puerto Rican

3
The district court did not reach the merits of this claim
because it declined to exercise jurisdiction over the Fideicomiso's
claims under the abstention doctrine of R.R. Comm'n of Tex. v.
Pullman, 312 U.S. 496 (1941). See Fideicomiso de la Tierra del
Caño Martin Peña v. Fortuño, 670 F. Supp. 2d 132, 140-42 (D.P.R.
2009). It reasoned that whether the Fideicomiso owned "private
property" subject to the Takings Clause turned on difficult and
unsettled questions of Puerto Rican law best left to the Puerto
Rican courts. Id. at 137-40. Our approach is to ask questions
preceding the ones on which that court focused.

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history, destroyed agricultural production and left hundreds of

thousands of people homeless. See Carlos Marquez, What If? Puerto

Rico's Economy: It's a Matter of Status, P.R. Herald, Aug. 5, 2004.

Migrants fled ravaged rural communities for San Juan, and there,

lacking the resources for anything else, they began settling the

swampland around the Martin Peña Canal.

Generations of Puerto Ricans have since migrated from the

countryside to the city, and the canal area is now home to some

30,000 residents in eight distinct communities spanning hundreds of

acres. See P.R. Laws Ann. tit. 23, § 5032. Residents have made

the swampland habitable by sinking dirt, garbage, and debris into

the swampland until it became firm enough to support the makeshift

homes they built from salvaged wood and corrugated tin. There are

no paved roads and few basic utilities. Sewage has flowed directly

into the canal or into improvised septic systems.

These communities fall well below the poverty line. Many

residents are the backbone of San Juan's skilled labor force, and

their purchases sustain many of the city's small businesses. These

are, as the Puerto Rican legislature has recognized, "communities

of irreplaceable importance for the city." Act of September 24,

2004, No. 489, Statement of Motives.

The canal area is, however, also in a state of

environmental crisis that has threatened the whole San Juan Bay

Estuary system. The wetlands have become dry land. The canal,

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once some four hundred feet wide at points, has shrunk so much that

it no longer serves as the vital link between the San José Lagoon

and San Juan Bay. Instead, water from the Lagoon floods the

settlements, dredging up raw sewage and eighty years' worth of

detritus, sweeping away the ground beneath the homes, and

imperiling residents.

By 2001, the Commonwealth and the U.S. Army Corps of

Engineers, recognizing the severity of this problem, had committed

to a far-reaching project to dredge the canal, restore the flow of

water, and clean up decades of environmental pollution. Because

the lack of sewage systems has been a major source of pollution, as

well as a major health hazard, the government has also committed to

rehabilitating and revitalizing the canal and its communities as a

central aspect of this project. The government estimates that the

project will take at least twenty years to complete.

This project has the potential to transform the canal and

its surrounding land, and community residents have a strong stake

in shaping its direction. Dredging the canal means relocating

those canal residents located closest to the water; rehabilitating

and revitalizing the area also means that it will be more

attractive to commercial developers. Sensitive to these concerns,

a central purpose of the rehabilitation project, designated the

Martin Peña ENLACE Project, is to ensure the long-term survival of

canal communities.

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 While the Commonwealth has repeatedly assured residents

that forced relocation is not an option, the project has

nonetheless generated pressing questions about land ownership in

the canal area. Various public agencies of the Commonwealth and

Municipality had some claim to title on several hundred acres of

this land. Other parcels of land were abandoned when settlers

arrived, and some have been abandoned since. The contours of the

land have changed as the canal receded. Settlers have, in any

event, occupied the lands surrounding the canal indiscriminately,

in some cases for many decades, further complicating questions of

land ownership. In the past, the Commonwealth and the Municipality

experimented with different processes for recognizing residents'

titles to land they have long occupied. But many of these

processes may not have complied with basic property registration

requirements under Puerto Rican law, leaving many residents

uncertain about whether they own the land upon which they live.

In practice as well as in name, the ENLACE Project has

relied on community engagement to develop solutions to these

difficult questions. Beginning in 2001, residents, under the

auspices of the Commonwealth's Department of Transportation and

Public Works and the Highways and Transportation Authority, started

developing a land-use plan tailored to residents' social, economic,

and environmental needs. Three years and several hundred community

meetings later, participants agreed on a community land trust model

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to solve the ownership question and to manage the lands in the

canal area for the community at large.4

On September 24, 2004, Puerto Rico enacted Law 489, which

spelled out how the environmental rehabilitation of the canal and

the preservation and revitalization of its surrounding communities

would be implemented. The law adopted the model of "integrated

development based on community empowerment" as "the public policy

of the Commonwealth of Puerto Rico." P.R. Laws Ann. tit. 23,

§ 5032. Law 489 again committed the government to minimizing

residents' dislocation as the rehabilitation of the canal

proceeded. See id. It also created two entities, the Corporation

and the Fideicomiso, which were charged with implementing

particular aspects of these broader goals. Id. §§ 5033, 5048.

The Corporation was charged with coordinating and

implementing all aspects of the dredging of the canal, housing

development, and urban planning in the canal area, and was to

ensure active and constant participation by canal residents. Id.

4
Community land trusts (CLTs) have long been championed as
a solution to the problem of affordable housing in urban
communities. See J.J. Kelly Jr., Land Trusts that Conserve
Communities, 59 DePaul L. Rev. 69, 70-71 (2009). CLTs are usually
nonprofit, democratically run organizations of community members
that own land in the area and hold it in trust for the community's
benefit, while selling or leasing the homes built upon the land at
low cost. Id. Because the trust cannot generally sell the
underlying land and can usually place conditions on the sale of
homes on the land, both of which are true here, the CLT model aims
to rehabilitate urban communities while deterring land speculation
and gentrification by private developers. Id. at 79-84.

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§ 5033. As part of that process, article 16 of Law 489 mandated

that title to any lands in the canal area owned or managed by

public agencies of the Commonwealth or Municipality would

automatically pass to the Corporation 160 days after Law 489 took

effect. Id. § 5045. Article 17 further provided that once the

Commonwealth determined which lands around the canal were part of

the maritime-terrestrial zone and in the public domain, the

remaining lands would be "declared patrimony of the Commonwealth

under the ownership rights of the Corporation," and title would

formally transfer to the Corporation. Id. § 5046.

The Fideicomiso, as a land trust, was to be created from

the lands the Corporation received from public agencies under

article 16 and the public patrimony lands the Corporation held

under article 17. Id. § 5048. The transfer of these lands from

the Corporation to the Fideicomiso was to occur once the

Corporation prepared regulations to govern the Fideicomiso's

operations. Id. The Fideicomiso's purposes, under Law 489,

included "contribut[ing] toward the solution of the ownership

rights problem of many District residents through collective land-

holding," id. § 5048(a)(1), and "acquir[ing] and possess[ing] lands

on behalf of the community, thus increasing local control over the

land and avoiding absentee owner decision-making," id.

§ 5048(a)(4).

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 Regulations governing the Fideicomiso's operations were

promulgated in 2008. They again stressed the Fideicomiso's role as

a "mechanism of collective possession in order to solve the problem

of the lack of ownership titles" and to "avoid involuntary

displacement" of canal residents. Land Trust Regulations art. I,

§ 1. They further emphasized the Fideicomiso's mission "to own,

watch over and administer all lands that the Corporation transfers

to it" and any future land it acquires, a mission that precluded

the Fideicomiso from selling these lands. Id. art. III, § 3.2.

The land transfer proceeded, and on May 14, 2009, the Corporation

formally deeded the public lands it had received to the

Fideicomiso.

One month later, on June 18, 2009, the Puerto Rican

government--now under the leadership of a different political party

--enacted Law 32. Law 32 retroactively amended article 16 of Law

489 so that title to any properties held by the Corporation or the

Fideicomiso that had been transferred by the Commonwealth or

Municipality would revert back to them. Act of June 23, 2009, No.

32, art. 1. Law 32, by its terms, left intact most of the rest of

Law 489, including its statement of goals and section 5048, the

section that created the Fideicomiso. See id.

Law 32 does not place any conditions on what the

Municipality can do with these lands, though the rest of Law 489,

which sets out a comprehensive plan for the future of the canal

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area, remains in effect. See id. Under Law 32, Commonwealth

agencies that originally held lands in the canal area are to study

the status of the titles and determine whether the agency should

retain the lands or should instead transfer them. Id. Agencies

can transfer the land so long as the transfer would not impede

citizens' access to essential services. Id.

When Law 32 was enacted, the Fideicomiso had claimed

title to approximately two hundred acres of land, all of which had

originally been held by the Commonwealth or Municipality and had

been transferred from the Corporation to the Fideicomiso. At

present, these are lands where canal residents live and have built

themselves homes.

After initial skirmishes over whether the Fideicomiso

could get a temporary restraining order or preliminary injunction

to stop Law 32 from taking effect, on November 10, 2009, the

district court issued an opinion in which it declined to reach the

question of preliminary injunctive relief. Instead, it dismissed

the case and abstained under the Pullman abstention doctrine.5 See

Fideicomiso de la Tierra del Caño Martin Peña v. Fortuño, 670 F.

Supp. 2d 132, 141-42 (D.P.R. 2009). The Fideicomiso now appeals.

5
Under Pullman abstention, federal courts ordinarily stay
the federal action instead of dismissing it. Mangual v. Rotger-
Sabat, 317 F.3d 45, 63 (1st Cir. 2003). We do not need to reach
the issue of whether the failure to stay was error.

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 II. Jurisdiction

We first address some basics. Article III limits our

jurisdiction to "cases and controversies," and our "obligation to

inquire sua sponte into our jurisdiction over the matter" exists in

every case. Doyle v. Huntress, Inc., 419 F.3d 3, 6 (1st Cir.

2005).

That obligation extends to determining whether a party

has constitutional standing to sue, meaning that it has suffered an

injury in fact "causally connected to the challenged conduct" and

capable of being remedied through suit. Pagán v. Calderón, 448

F.3d 16, 27 (1st Cir. 2006) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992)).

Though the defendants have asserted that the Fideicomiso

never legally owned the lands transferred to it by the Corporation,

that argument does not deprive the Fideicomiso of Article III

standing. We need not define the precise nature of the

Fideicomiso's interests in these lands to hold that they are

sufficient to establish an injury in fact if Law 32 is enforced.

Law 32 is directed explicitly at the Fideicomiso and creates an

injury in fact by its very terms, which state that any Commonwealth

and municipal lands transferred to the Fideicomiso will immediately

return to it. Act of June 23, 2009, No. 32, art. 1. Article III

standing is no bar to our exercise of jurisdiction in this case.

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 To the extent that the question of ripeness presents

Article III limitations on our jurisdiction, there is no such

jurisdictional hurdle on the theory pled here. It is true that

Williamson County Regional Planning Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985), held a plaintiff's claim for

just compensation under the Takings Clause was unripe where the

plaintiff had not gone through state procedures for obtaining

compensation. Id. at 195. But there is no just compensation claim

here.

We agree with the vast majority of circuits to address

this issue, which have held that this ripeness requirement of going

through state procedures does not apply to claims that a taking was

not for a "public use." See Carole Media LLC v. N.J. Transit

Corp., 550 F.3d 302, 308 (3d Cir. 2008); Rumber v. Dist. of

Columbia, 487 F.3d 941, 944 (D.C. Cir. 2007); Montgomery v. Carter

County, 226 F.3d 758, 766-68 (6th Cir. 2000); McKenzie v. City of

White Hall, 112 F.3d 313, 317 (8th Cir. 1997); Armendariz v.

Penman, 75 F.3d 1311, 1320-21 & n.5 (9th Cir. 1996) (en banc),

abrogated on other grounds by Lingle v. Chevron U.S.A., Inc., 544

U.S. 528 (2005); Samaad v. City of Dallas, 940 F.2d 925, 936-37

(5th Cir. 1991); but see Forseth v. Vill. of Sussex, 199 F.3d 363,

369 N.8, 372-73 (7th Cir. 2000). That is so because "[p]rivate-use

takings . . . are unconstitutional regardless of whether just

compensation is paid," and, unlike just compensation claims, state

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proceedings to determine appropriate compensation would not obviate

the constitutional question. Montgomery, 226 F.3d at 766-67.

Nor is this a case where the federal courts should

decline to exercise jurisdiction under the discretionary doctrine

of Pullman abstention. Pullman abstention avoids unnecessary

federal court interference by deferring to state courts on

important, unsettled areas of state law; however, it is appropriate

only when "substantial uncertainty exists over the meaning of the

state law in question, and . . . settling the question of state law

will or may well obviate the need to resolve a significant federal

constitutional question." Batterman v. Leahy, 544 F.3d 370, 373

(1st Cir. 2008). The latter condition is not satisfied here.

The Fideicomiso's Takings Clause claim does not turn on

questions of Puerto Rican law, including questions of whether the

Corporation could legally transfer public agencies' lands to the

Fideicomiso, whether the Fideicomiso is a public or private

entity,6 its powers as a trust, or whether the lands in question

6
On appeal, the parties focus on this issue as central to
whether the Fideicomiso could state a claim under the Takings
Clause, on the theory that there can be no taking if the
Fideicomiso had no cognizable property rights. The Fourth Circuit
has instead characterized whether a plaintiff is a public entity
capable of suing the state for an alleged constitutional violation
as an Eleventh Amendment issue because of the stakes for the
state's sovereign dignitary interests. See Virginia v. Reinhard,
568 F.3d 110, 122-23 (4th Cir. 2009). We need not engage in an
Eleventh Amendment analysis. Other circuits have classified this
question yet differently under the rubric of standing, see, e.g.,
id. at 123 n.3 (collecting cases), though the reasoning in some
cases has not invoked Article III considerations. Id.

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are considered private property, all of which are bitterly

contested. See Fideicomiso, 670 F. Supp. 2d at 137-40.

The gravamen of the Fideicomiso's Takings Clause claim is

that it is entitled to stop the alleged taking entirely, as opposed

to receiving just compensation, because Law 32 is not a taking for

"public use." Irrespective of whether the Fideicomiso is, as it

claims, a private owner of lands considered private property under

Puerto Rican law, it cannot obtain the relief it seeks if its

"public use" argument fails. Unlike the ancillary questions

identified by the district court, this is a question of federal

constitutional law. See Kelo v. City of New London, 545 U.S. 469,

479-83 (2005). Because the Fideicomiso cannot prevail on its

argument that Law 32 is not for "public use," as discussed below,

abstention is unwarranted.

Whatever the formal label, this is not the kind of
jurisdictional issue we must address first under Steel Company v.
Citizens for a Better Environment, 523 U.S. 83 (1998). See
Davignon v. Clemmey, 322 F.3d 1, 11 (1st Cir. 2003) (interpreting
Steel Company as holding that difficult jurisdictional questions
need only be addressed before the merits if they implicate Article
III's "case or controversy" requirement). Instead, this is the
kind of thorny question we have avoided when, as here, another
issue is dispositive. See Parella v. Ret. Bd. of the R.I.
Employees' Ret. Sys., 173 F.3d 46, 56 n.6, 58-62 (1st Cir. 1999)
(avoiding deciding whether the defendant was an "arm of the state"
for Eleventh Amendment purposes because plaintiffs' Takings and
other constitutional claims failed on the merits).
We do not reach this issue, and for this reason, we also do
not address the Seventh Circuit's opinion in Illinois Clean Energy
Community Foundation v. Filan, 392 F.3d 934 (7th Cir. 2004), which
held that a foundation created by statute was not a state agency
and could bring a Takings Clause claim against the state. Id. at
936-37.

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 III. The Takings Clause "Public Use" Claim

The public use requirement of the Takings Clause mandates

that "one person's property may not be taken for the benefit of

another private person without a justifying public purpose, even

though compensation be paid." Thompson v. Consol. Gas Utils.

Corp., 300 U.S. 55, 80 (1937). Under those circumstances, a

"plaintiff that proves that a government entity has taken its

property for a private, not a public, use is entitled to an

injunction against the unconstitutional taking, not simply

compensation." Carole Media, 550 F.3d at 308; see also Ramirez de

Arellano v. Weinberger, 745 F.2d 1500, 1521-22 (D.C. Cir. 1984),

rev'd on other grounds sub nom, Weinberger v. Ramirez de Arellano,

741 U.S. 113 (1985). Plaintiff's claim falls under this public use

branch of the doctrine.

The Fideicomiso says that the alleged "taking" under Law

32 is not for "public use" because it serves no legitimate purpose

and undercuts the purposes of Law 489. It argues that the

government has failed to consistently identify any legitimate goal

for Law 32. Even if the government had, the Fideicomiso further

argues, Law 32's alleged confiscation and transfer of lands to

public agencies bears no reasonable relationship to any possible

legitimate purpose. This is so not least because Law 32, in the

Fideicomiso's view, relieves public agencies from the obligation to

advance the goals of the ENLACE Project identified in Law 489.

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These goals in Law 489 are indisputably public purposes.7 The end

result of Law 32, the Fideicomiso warns, will be to end community

participation in the ENLACE Project, to allow public agencies to

facilitate speculation by private developers, and to displace

community residents.

These are serious arguments, but they are not grounds for

a claim under the Takings Clause of the U. S. Constitution. Public

policy disagreements about the best of several rational means to

accomplish legitimate public purposes are not the grist of a

Takings Clause claim. Our review of whether a taking is for

"public use" is necessarily deferential: "When the legislature's

purpose is legitimate and its means are not irrational, . . .

empirical debates over the wisdom of takings . . . are not to be

carried out in the federal courts." Haw. Housing Auth. v. Midkiff,

467 U.S. 229, 242-43 (1984); see also Goldstein v. Pataki, 516 F.3d

50, 57-58 (2d Cir. 2008).

Well before the Kelo decision, the Supreme Court had

recognized two categories of quintessentially legitimate public

uses under the Takings Clause: takings that transfer private

property to public ownership, resulting in the administration of

lands for the public good, see, e.g., Old Dominion Land Co. v.

7
The fact that under Law 489 the land may, after
improvements, be leased to private parties does not mean that Law
489 lacks a public purpose, see Berman v. Parker, 348 U.S. 26, 33-
36 (1954), nor does the Fideicomiso so argue.

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United States, 269 U.S. 55, 66 (1925); United States v. Gettysburg

Elec. Ry. Co., 160 U.S. 668, 681-83 (1896); Shoemaker v. United

States, 147 U.S. 282, 297 (1893), and takings that make property

available for use by the general public, see Kelo, 545 U.S. at 478-

79 (noting that this category has long been deemed "sufficient to

satisfy the public use requirement"). These two categories, of

course, continue to be legitimate public uses under Kelo.

Law 32, by its terms, revokes the transfer of public

agencies' lands to the Fideicomiso and returns the lands to public

ownership through agencies of the Commonwealth and the

Municipality.8 This transfer to public ownership reflects the

Commonwealth's judgment that the goals of rehabilitating and

revitalizing the canal will be better served, and will be

consistent with other missions of its public agencies, if these

agencies, rather than the Fideicomiso and the Corporation, again

hold and administer the lands in the canal area they once owned.

There can be no doubt that Law 32's transfer to public ownership is

for "public use" under the Takings Clause.9

8
Thus the category of cases in which the property is
transferred to another private party, see, e.g., Kelo, 545 U.S. at
478-83; Midkiff, 467 U.S. at 241-42; Berman, 348 U.S. at 33-36, is
not involved here.
9
At oral argument, the government represented that those
public agencies must, under Law 32, continue to administer the
lands for the benefit of canal residents and for all the other
stated public purposes originally articulated in Law 489.

-21-
 The Fideicomiso's argument is largely that it disagrees

with the different choice of mechanisms made in Law 32, as opposed

to those originally made in Law 489, to effectuate public purposes.

The tensions the Fideicomiso identifies between Law 32 and Law 489

do not make Law 32's transfer of lands to public agencies an

irrational or even a suspect means of achieving public purposes.

Law 32 itself says its purpose is to harmonize Law 489 with other

laws and to clarify that public domain lands are not transferrable.

The government has argued that through Law 32, experienced public

agencies will regain ownership of lands in the canal, and this will

facilitate better and faster completion of projects to advance the

area's revitalization and development. The government argues that

five years have passed under the Fideicomiso land trust model and

there has been no real progress towards meeting Law 489's

environmental rehabilitation and development goals. All of this,

the government concludes, justifies a different approach. Whatever

the wisdom of this choice of different means by the legislature and

governor, a federal court cannot conclude Law 32 was an

illegitimate means of advancing a public purpose, not least because

transfers of private property to public ownership have been upheld

since the founding of our country.

There are no other circumstances presented by this case

that would warrant the remedies of injunctive and declaratory

relief for the Fideicomiso's Takings Clause claim. The Fideicomiso

-22-
says if Law 32 goes into effect, the Fideicomiso will be prevented

from carrying out its statutory purpose; that may be true. It does

not follow, as the Fideicomiso argues, that the communities

surrounding the canal will be dislocated as a result. "Irreparable

harm" in the takings context cannot simply mean the risk that the

means the government has chosen to implement a public policy will

have undesirable consequences.10 The Takings Clause is not a means

for federal courts to second-guess the legislature's choices about

the best mechanisms to achieve what are undeniably public policy

goals.

IV. Other Constitutional Claims

In its complaint, the Fideicomiso cursorily challenged

Law 32's constitutionality under the Due Process Clause, the

Contracts Clause, and the Ex Post Facto Clause. But the

Fideicomiso did not develop these arguments before the district

10
Though the Supreme Court has granted declaratory and
injunctive relief for a limited number of Takings Clause claims
beyond "public use" challenges, it has also made clear that these
cases are exceptional and limited to their facts. Those cases,
moreover, involved regulatory takings, not physical takings. See
E. Enterprises v. Apfel, 524 U.S. 498, 521-22, 528-537 (1998)
(plurality opinion) (granting declaratory and injunctive relief for
a regulatory takings claim on the facts of a Tucker Act case where
the alleged taking resulted in severe, retroactive, and
unforeseeable liability for a small number of parties and the
Claims Court process would not provide a sufficient remedy);
Babbitt v. Youpee, 519 U.S. 234, 237, 243-45 (1997) (invalidating
and enjoining further enforcement of a federal statutory provision
that effectively eliminated certain Native American landowners'
ability to leave fractional interests in property to their
successors); Irving v. Hodel, 481 U.S. 704, 716-18 (1987)
(invalidating and enjoining an earlier version of this provision).

-23-
court, nor has it preserved them for appeal. The Fideicomiso's

motion for a preliminary injunction centered entirely on the merits

of its Takings Clause claim. It mentioned its other claims only in

passing, omitting both case citations and any indication of the

gravamen of these claims. The Fideicomiso's brief on appeal

likewise relies solely on its Takings Clause claim to argue the

merits of its case. That is waiver; we do not reach these other

claims. See Mass. Museum of Contemporary Art Found. v. Büchel, 593

F.3d 38, 65 (1st Cir. 2010).

We vacate the district court's judgment and the stay we

entered, and we direct entry of judgment of dismissal with

prejudice of all federal claims and dismissal of all claims under

Puerto Rican law without prejudice. No costs are awarded.

So ordered.

-Concurring Opinion Follows-

-24-
 TORRUELLA, Circuit Judge (Concurring). I join the

majority in holding that Plaintiff-Appellant, Fideicomiso del Caño

Martín Peña ("the Fideicomiso"), cannot show that Law 32 fails to

pursue a "public use" as required by the Fifth Amendment's public

use clause.11 I write separately to clarify my view that Law 32

pursues the public purposes of economic, social, environmental, and

community redevelopment that were carefully plotted in Law 489.

Under settled Supreme Court precedent, -- including the latest

decision in Kelo v. City of New London, 545 U.S. 469 (2005) --

economic and community redevelopment are legitimate public

purposes. Viewing Law 32 within the statutory and regulatory

framework adopted by Law 489, it is manifest that Law 32 pursues

these public goals through public ownership of lands. Eschewing

any views regarding the wisdom of transferring lands to public

ownership in order to effectuate the goals of the ENLACE Project,

I cannot say that Law 32 lacks a public purpose.

11
The Takings Clause of the Fifth Amendment applies to the
states through the Fourteenth Amendment. Lingle v. Chevron U.S.A.
Inc., 544 U.S. 528, 536 (2005). Though the Supreme Court has not
held that the Takings Clause of the Fifth Amendment is applicable
to the Commonwealth of Puerto Rico, we have dispelled any "doubts"
regarding the application of the clause to the Commonwealth of
Puerto Rico. Tenoco Oil Co., Inc. v. Dep't of Consumer Affairs,
876 F.2d 1013, 1017 n.9 (1st Cir. 1989); see also Culebras Enter.
Corp. v. Rivera Ríos, 813 F.2d 506 (1st Cir. 1987) (assuming, in
the context of an inverse condemnation action under Puerto Rico
law, that the Takings Clause applies to the Commonwealth of Puerto
Rico).

-25-
 I.

In 2001, the Commonwealth of Puerto Rico ("the

Commonwealth") developed a comprehensive development project

denominated the Martín Peña Canal ENLACE Project (the "ENLACE

Project") under the direction of the Department of Transportation

and Public Works. The project's stated purpose was to rehabilitate

and revitalize the Martín Peña Canal District. The ENLACE Project

came to fruition on September 24, 2004 when the Commonwealth's

legislature promulgated Law 489, also known as "the Martín Peña

Canal Special Planning District Integrated Development Act." P.R.

Laws Ann. tit. 23, §§ 5031-5066. Among other things, Law 489

articulated clear public policy goals: (1) to rehabilitate the San

Juan Bay Estuary; (2) to improve the living conditions of the

communities located along the Martín Peña Canal through community

empowerment; and (3) "[t]o promote civic and democratic development

through the active participation of the residents in the planning

and rehabilitation processes of the area." Id. § 5032. Law 489

established two basic entities to pursue these goals: the ENLACE

corporation and the Fideicomiso, or Land Trust.

The ENLACE Corporation was endowed with the

responsibility of "coordinating the implementation of all aspects

of the ENLACE Project; including, without being limited to, housing

development, infrastructure, the dredging and canalization of the

Canal, as well as urban and socio-economic development." Id.

-26-
§ 5033(1). In turn, the Fideicomiso was created to, inter alia,

deal with land ownership issues; acquire and possess lands on

behalf of the community; handle the displacement of the low-income

residents; guarantee affordable housing; and foster "participation

of the residents and the strategic investment of the private

sector." Id. § 5048(a)(5).

By virtue of Law 489, all publicly-held lands within the

District were transferred to the ENLACE Corporation. Id. § 5045.

("The public agencies . . . that manage, hold in custody, have

dominion over, lease or own lands in the District shall be

understood through this chapter as having transferred the

respective title to the Corporation after one hundred sixty days

(160) as of the effectiveness thereof."). Ownership rights over

"lands of public domain or patrimony" remained "vested" in the

ENLACE Corporation, with certain exceptions regarding lands in the

maritime-terrestrial zone. Id. Ultimately, these lands were to be

transferred from the Corporation to the Fideicomiso. Id. § 5048

("The Martín Peña Canal Land Trust . . . shall consist of all the

lands transferred to the Corporation.").

In May 2007, the Integral Development and Land Use Plan

of the Special Planning District of the Caño Martín Peña was

approved by the Governor of Puerto Rico. The Plan sought to

"improve the quality of life of the residents of the District

through mechanisms aimed at overcoming poverty, [and] harmonizing

-27-
the relationship between the District's communities and their

natural environment . . . ." Appellant's Appendix, Vol. III,

Exhibit E at 1432.

On June 18, 2009, the Commonwealth's legislature passed

Law 32 "to amend Article 16 of Law No. 489 of September 24, 2004."12

Law 32 provides, inter alia, that "any of the[] properties which

have been transferred to the Corporation or [the] Fideicomiso, will

revert to the original Agency or Title Holder," and "[a]ny lot or

parcel of land which by virtue of Law 489 has been registered in

the name of the Corporation or the Fideicomiso, will revert to its

original titleholder condition until such time as every study,

action or procedure has been accomplished in accordance with this

Act." Law 32 also revoked any transfers of Municipal lands to the

Fideicomiso or the ENLACE Corporation, and invalidated any efforts

by the Fideicomiso or the ENLACE Corporation to register Municipal

lands in their names.

After the Governor of Puerto Rico signed Law 32, the

Fideicomiso filed the present suit challenging Law 32 under the

Takings and Due Process clauses of the 5th and 14th Amendments to

the United States Constitution and equivalent provisions of the

Puerto Rico Constitution. The Fideicomiso stresses that the

Government has failed to articulate a coherent and legitimate

12
As previously mentioned, Article 16 of Law 489 provided for
the transfer of lands in the Martín Peña Canal District to the
ENLACE Corporation.

-28-
explanation of the public purposes behind Law 32. The Fideicomiso

also contends that in allowing the Commonwealth to place land

titles among a host of public agencies, Law 32 contravenes Law

489's goals to foster community participation, and avoid

speculation and displacement of the communities. On the other

hand, the Commonwealth argues that governmental control over the

lands would jump-start the ENLACE Project which was delayed for

close to five years due to what the government claims was the

Fideicomiso's inability to complete the different stages of the

ENLACE Project in a timely fashion. The Commonwealth further

explains that Law 32 creates a mechanism to allow public agencies

to participate in the ENLACE Project.

II.

The Fideicomiso, as "a party challenging governmental

action as an unconstitutional taking[,] bears a substantial burden"

in this case. E. Enter. v. Apfel, 524 U.S. 498, 523 (1998).

Supreme Court precedent requires this court to defer to legislative

judgments of what constitutes a public use or purpose. See Kelo,

545 U.S. at 480 ("Without exception, our cases have defined that

concept [public purpose] broadly, reflecting our longstanding

policy of deference to legislative judgments in this field.");

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984). Once a

public use is established, we owe deference to the legislative

judgment regarding the means chosen to attain it. Berman v.

-29-
Parker, 348 U.S. 26, 33 (1954) ("Once the object is within the

authority of Congress, the means by which it will be attained is

also for Congress to determine."); Old Dominion Land Co. v. United

States, 269 U.S. 55, 66 (1925) (holding that once Congress declared

a public use, "[i]ts decision is entitled to deference until it is

shown to involve an impossibility").

However, deference to the legislature in the takings

context does not mean abdication of the court's duty to find that

there is indeed a public purpose being served. Despite the

Fideicomiso's better efforts to show that Law 32 lacks any public

use or purpose, a review of Law 32 reveals that in passing the

statute, the Commonwealth's legislature simply chose different

means to achieve the goals and undoubtedly public purposes that

were carefully delineated in Law 489. Also, as the majority

opinion recognizes, Law 32 transferred lands to public ownership,

thereby meeting an undoubtedly public purpose.

It is of utmost importance to clarify that Law 32 amended

one Article of Law 489 -- Article 16 -- and maintained Law 489's

comprehensive provisions that define the policy goals behind the

ENLACE Project. As the Commonwealth argues, the principles,

purposes, and objectives of Law 489 are in effect. In enacting Law

32, the Commonwealth's legislature simply chose alternate means to

achieve the development and rehabilitation goals set forth in Law

489. Absent any indication that Law 32 amounts to an unreasonable

-30-
or irrational avenue to undertake the ENLACE Project, we cannot

second-guess the legislature in this case. Midkiff, 467 U.S. at

242-43 ("When the legislature's purpose is legitimate and its means

are not irrational, our cases make clear that empirical debates

over the wisdom of takings -- no less than debates over the wisdom

of other kinds of socioeconomic legislation -- are not to be

carried out in the federal courts.").

Furthermore, the claim that Law 32 is devoid of any

public use is inconsistent with the broad interpretation the

Supreme Court has given to the Fifth Amendment's public use

requirement. See Berman, 348 U.S. at 33 (recognizing that

community redevelopment served a public purpose and stating that

"[i]t is within the power of the legislature to determine that the

community should be beautiful as well as healthy, spacious as well

as clean, well-balanced as well as carefully patrolled"); Midkiff,

467 U.S. at 242 (holding that state efforts to avert land oligopoly

and correct deficiencies in the land market served a valid public

purpose); Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503

U.S. 407, 422-23 (1992)(upholding determination that transfer of

railroad tracks from one party to another that would better

maintain the tracks pursued the valid public purpose of

facilitating rail operations). In its recent decision in Kelo, the

Supreme Court held that a "carefully considered" economic

development plan which was found to have been adopted after

-31-
"thorough deliberation", satisfied the public use requirement. 545

U.S. at 478, 484. In so holding, the court recognized the

principle that a carefully considered governmental economic

development plan pursues a public use where the scheme seeks to

promote economic redevelopment and is designed to provide economic

benefits to the community.

It is uncontested that the ENLACE Project was adopted to

rehabilitate and revitalize the Martín Peña Canal and its

communities; it seeks to conduct extensive public works and

improvements; and to deal with environmental degradation, and land-

ownership issues. These are public purposes that were adopted in

the context of a thorough, comprehensive, and detailed development

plan, that pursuant to Law 32 will be carried out through the

intervention and active participation of several public agencies.

In light of the Supreme Court's decision in Kelo, it is clear that

the ENLACE Project serves valid public purposes. While Law 32

altered the statutory scheme that was put in place by Law 489, the

ENLACE Project is still alive and there is no indication that the

Commonwealth has abandoned the goals of rehabilitating and

revitalizing the Martín Peña Canal. The mere fact that the

Commonwealth's legislature decided to pursue the goals of the

ENLACE Project by transferring lands from the Fideicomiso to a host

of public agencies does not render Law 32 unconstitutional under

-32-
the Takings Clause.13 More importantly, it is manifest that a

governmental project by which the government owns and administers

lands for the benefit of the public or community pursues a valid

public purpose. Cf. Rindge Co. v. Los Angeles County, 262 U.S.

700, 706-07 (1923) (recognizing that the taking of property to

build a highway is one for public use and explaining that "[i]t is

not essential that the entire community, nor even any considerable

portion, should directly enjoy or participate in an improvement in

order to constitute a public use").

Law 32 reflects a legislative judgment that the public

purpose of community redevelopment in the Martín Peña Canal

district is better served through public ownership of the lands in

controversy. Because I cannot deem Law 32 as employing irrational

means to achieve the public goals delineated in Law 489, I join the

majority in holding that the Fideicomiso's challenge under the

public use clause fails on the merits.

13
The determination that the Fideicomiso cannot succeed in its
claim that Law 32 is facially unconstitutional should not be
interpreted as barring future as-applied takings challenges if it
is shown that lands in the Martín Peña Canal District are taken for
purely private purposes, Midkiff, 467 U.S. at 245, or "under the
mere pretext of a public purpose," Kelo, 545 U.S. at 478.

-33-