59 F.3d 852

TANG, Senior Circuit Judge,
dissenting:
The majority opinion concludes that the Dodds’ case is ripe. I conclude the case is not ripe because the Dodds have not utilized state proceedings to obtain the just compensation required by the Fifth and Fourteenth Amendments. Accordingly, I dissent.
I.
My disagreement with the majority opinion centers around the second ripeness requirement, that the Dodds “seek compensation through the procedures the State has provided for doing so.” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985). According to the Supreme Court, an unconstitutional taking consists of two components: taking of property and subsequent denial of just compensation. If a property owner receives just compensation through the process the government provides, the property owner does not have a taking claim. Id. at 194-95, 105 S.Ct. at 3120-21.
The Supreme Court in Williamson County did not state that claimants seeking just compensation from state or local governments need seek in state proceedings only the remedies provided by state law. Rather, the Court required claimants to utilize state “procedures” to obtain just compensation. Id. at 194, 105 S.Ct. at 3120. The procedure available to the claimant in Williamson County was an inverse condemnation suit, as provided by Tenn.Code Ann. § 29-16-123. 473 U.S. at 196-97, 105 S.Ct. at 3121-22.
Inverse condemnation suits do not provide only the just compensation required under state law. Rather, such suits are a method of obtaining the just compensation required by the Fifth and Fourteenth Amendments. “A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987) (internal quotation omitted). “Claims for just compensation are grounded in the Constitution itself.” Id. The state procedure Williamson County references is the procedure necessary to raise a federal taking claim in state court. Thus, under Williamson County, a taking claimant must litigate the federal constitutional claim through the processes the state provides.
The Supreme Court also compared the process for making a claim, against state or local governments to the process for making a claim against the federal government. A taking claim against the federal government is “premature until the property owner has availed itself of the process provided by the Tucker Act, 28 U.S.C. § 1491.” Williamson County, 473 U.S. at 195, 105 S.Ct. at 3121 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1020, 104 S.Ct. 2862, 2879-82, 81 L.Ed.2d 815 (1984)). The Tucker Act grants the U.S. Claims Court ‘“jurisdiction to render judgment upon any claim against the United States founded ... upon the Constitution.’” Monsanto, 467 U.S. at 1017, 104 S.Ct. at 2880 (citing 28 U.S.C. § 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment. The Supreme Court indicated that the Tucker Act procedure is analogous to the state proceedings claimants must follow to obtain just compensation from state and local governments. Williamson County, 473 U.S. at 195, 105 S.Ct. at 3121. Therefore, claimants following state procedures, like those utilizing the procedure established under the Tucker Act, should raise the federal just compensation requirement.
The Ninth Circuit decisions applying the state procedure requirement of Williamson County are not inconsistent with this conclusion. The Ninth Circuit has regularly dismissed cases in which claimants did not seek compensation through inverse condemnation proceedings. See, e.g., Bateson v. Geisse, 857 F.2d 1300 (9th Cir.1988) (affirming dismissal of taking claim because claimant had not yet pursued inverse condemnation provided by Montana law); Hoehne v. County of San Benito, 870 F.2d 529 (9th Cir.1989) (case was ripe because at the time the suit was filed, prior to First English Church, California did not have an inverse condemnation remedy for regulatory takings); Jama Const. v. City of Los Angeles, 938 F.2d 1045 (9th Cir.1991), cert. denied, 503 U.S. 919, 112 S.Ct. 1293, 117 L.Ed.2d 516 (1992) (affirming dismissal of ease because, following First English Church, claimant had to seek compensation through procedures established by California law). These cases simply do not address the issue of whether claimants following state proceedings must seek the federal just compensation remedy. First English explains that inverse condemnation is the process for obtaining the federal just compensation remedy.
II.
Admittedly, if a taking claimant is required to litigate the constitutional claim in state court, the claimant is then barred by res judicata, i.e. claim preclusion, from bringing a federal court action. The Court in Williamson County did not address the res judicata bar. However, the Supreme Court has explained that claimants are not always entitled to vindicate federal rights in federal court. For example, in Allen v. McCurry, 449 U.S. 90, 92, 101 S.Ct. 411, 413-14, 66 L.Ed.2d 308 (1980), a criminal defendant moved to suppress evidence allegedly obtained in violation of the Fourth Amendment. The Court concluded collateral estoppel barred a subsequent § 1983 suit asserting the same Fourth Amendment violation. Id. at 105, 101 S.Ct. at 420.
Portions of the Court’s analysis in Allen are relevant to the question of access to federal court for taking claimants. The Constitution does not give “every person asserting a federal right ... one unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises.” Allen, 449 U.S. at 103, 101 S.Ct. at 419. “There is ... no reason to believe that Congress [through passage of § 1983] intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all.” Id. at 104, 101 S.Ct. at 420.
One could argue that the claimant in Allen still had a choice of forum because he could have filed a § 1983 suit rather than requesting suppression of the evidence in his criminal trial. However, practically speaking, a criminal defendant is unlikely to give up the opportunity to suppress damaging evidence in order to retain his right to file a damages suit in federal court. The criminal defendant, like the claimant asserting a taking action against a state, must litigate the federal issue in state court.
Allen also explains the point at which a litigant normally confined to state proceedings may obtain access to federal court. The collateral estoppel bar is inapplicable when the claimant did not have a “full and fair opportunity to litigate” the issue decided by the state court. Id. at 101, 101 S.Ct. at 418. Thus, a claimant can file a federal suit to challenge the adequacy of state procedures.
Relying in part on Allen, the Third Circuit has concluded that application of New Jersey claim preclusion rules, which deprived takings claimants of the opportunity to litigate their federal claims in federal court, did not violate the Due Process Clause. Peduto v. City of North Wildwood, 878 F.2d 725, 726 (3rd Cir.1989). The takings claimants in Peduto raised both state and federal takings claims in state court, because Williamson County required filing an inverse condemnation suit in state court and New Jersey civil procedures rules required raising the federal claim in state court, under the New Jersey “entire controversy” doctrine. The Third Circuit concluded that the Due Process Clause had not been violated because the claimants had a “full and fair opportunity” to litigate their federal claims. Peduto, 878 F.2d at 728. Denial of a federal forum is not a denial of due process. Id. at 729.
Furthermore, the Ninth Circuit has expressly concluded that, although Williamson County requires takings litigants to present their takings claims to state court to ripen the claim, “this requirement does not prevent the doctrine of res judicata from barring subsequent federal action.” Palomar Mobilehome Park Ass’n v. City of San Marcos, 989 F.2d 362, 364 (9th Cir.1993). The only difference between Palomar and the present case is that Palomar did not expressly reserve its federal claim,
As the majority points out, res judicata poses a problem even absent a requirement that claimants raise the federal just compensation claim in state court. Res judicata bars a second action based on the same facts when the claimant seeks an additional remedy and the claim could have been joined in the first action. See Or.Rev.Stat. § 43.130; Van De Hey v. United States Nat'l Bank of Oregon, 313 Or. 86, 829 P.2d 695, 698 (1992).
In response to this problem, the Dodds claim that, during the state proceedings, they were entitled to expressly reserve their federal claims for federal court pursuant to England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). England reservation applies when a litigant files a suit in federal court and the federal court stays proceedings to allow the state courts to consider state law questions. In such a situation, the litigant can inform the state court that she reserves federal issues for federal court. Id. at 421, 84 S.Ct. at 467-68. By doing so, the litigant avoids the bar of res judicata upon return to federal court.
Without addressing England reservation, the majority concludes that the Dodds reserved their federal claim because the county impliedly consented by failing to object to reservation, and the state courts expressly acknowledged reservation. While this conclusion allows the Dodds to proceed in federal court, the majority skirts the issue of whether taking claimants can reserve their federal claim in order to avoid a res judicata bar when the government objects to reservation.
If a taking claimant in the Dodds’ position attempts to make an England reservation, several problems arise. First, England reservation applies when a suit begins in federal court, but the Dodds’ taking claim began in a state administrative process. Indeed, to satisfy the Williamson County ripeness requirements, the Dodds had to begin with state proceedings. Were this the only problem, we could consider whether the rationale behind England reservation justifies reservation of federal taking claims when the claimant begins with mandatory state proceedings.
However, a far more crucial problem exists with respect to reservation of a federal taking claim. Unlike the England situation in which a federal court abstains to allow a state court to address state law issues, a taking claim in state court “is not an issue of state law the resolution of which might avoid a federal ruling.” Thomas E. Roberts, “Fifth Amendment Taking Claims in Federal Court,” 24 Urban Lawyer 479 (1992). Rather, a taking claim in state court:
is a federal law issue, the Fifth Amendment, that the state court must decide. The England rule exists to protect the purpose of Pullman abstention to avoid federal constitutional rulings, but [Williamson County v.] Hamilton Bank demands that a state court make a federal constitutional ruling.
Id.
As discussed above, state just compensation procedures are designed to address the federal constitutional question. Indeed, such procedures are required by the Constitution. First English Church, 482 U.S. at 315, 107 S.Ct. at 2385-86. Reserving the federal question is simply not possible.
TV.
Even if taking claimants are allowed to reserve their federal claims, the federal action will regularly be barred by collateral estoppel, i.e. issue preclusion. Indeed, the majority opinion remands to the district court for determination of whether issue preclusion bars the Dodds’ claim. Just compensation requirements are likely to be similar under both federal and state law. In considering the Dodds’ state law taking claim, the Oregon Supreme Court indicated that, while the takings claims under the Oregon and United States Constitutions are not identical, “the basic thrust [of the two constitutional provisions] is generally the same.” Dodd v. Hood River County, 317 Or. 172, 855 P.2d 608, 613 (1993) (quoting Suess Builders Co. v. City of Beaverton, 294 Or. 254, 656 P.2d 306 (1992)). Furthermore, the Oregon Supreme Court considered, although it did not decide, whether courts applying the Oregon Constitution’s taking clause must determine whether a regulation interferes with investment-based expectations. The Oregon Supreme Court obtained this standard from Lucas v. South Carolina Coastal Council, — U.S. -, - n. 8, 112 S.Ct. 2886, 2895 n. 8 (1992), a United States Supreme Court case analyzing a taking under the Fifth and Fourteenth Amendments. The Oregon Supreme Court’s discussion indicates that Oregon courts look to federal taking jurisprudence to determine the applicable standards under Oregon law.
V.
Although the majority expresses consternation about the “revolutionary concept and draconian result” of limiting takings claimants’ access to federal court, the majority’s attempt to keep the door to federal court propped open is largely illusory. In order to avoid the operation of a res judicata bar to federal court, the majority rejects the conclusion that, under Williamson County, taking claimants must raise their federal taking claim in state proceedings. The majority concludes that taking claimants need raise only their state taking claims in state court. The res judicata problem remains, however, because res judicata generally bars claims that could have been joined in a prior proceeding. The majority fails to address how claimants will avoid the res judicata bar absent the unique circumstance of consent by the opposing governmental party and by the state court to reservation of the federal claim. Finally, even if res judicata does not bar the federal claim, collateral estoppel generally will. The state proceedings usually will determine the federal takings issue.
VI.
I conclude the case is not ripe because the Dodds have not sought, through state proceedings, the just compensation required by the Fifth and Fourteenth Amendments. Normally, res judicata bars a federal claim that could have been brought in the course of state proceedings. However, the state court allowed the Dodds to reserve their federal claim. Therefore, rather than applying a res judicata bar, we should dismiss the federal action. The Dodds should be required to seek just compensation in state court.
For the foregoing reasons, I respectfully dissent.
. The Tucker Act, 28 U.S.C. § 149X, provides in relevant part:
The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
. Under the “entire controversy” doctrine, a parly who has elected not to raise a related part of the controversy is barred from raising it in a subsequent proceeding. Peduto, 878 F.2d at 727 (citing Woodward-Clyde Consultants v. Chemical and Pollution Sciences, Inc., 105 N.J. 464, 523 A.2d 131, 135 (1987)).
. This portion of the majority’s analysis may be problematic because the issue of whether the federal court has jurisdiction is an independent inquiry. Generally, parties cannot through consent confer jurisdiction upon the federal courts. See Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986).

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