Petition for Writ of Certiorari — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

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, oO Supreme Court, U.8. '

001167 JAN 1 8 2002

No.

In The

Supreme Court of the United States

TAHOE SIERRA PRESERVATION COUNCIL, Inc.,

a California non-profit corporation and

‘membership organization, et al.

Petitioners,

TAHOE REGIONAL PLANNING AGENCY,

a separate legal entity created

pursuant to Bi-State Compact, et al.

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION For WRIT OF CERTIORARI

Lawrence L. HOFFMAN Micuaet M. Bercer*

HorrMan Law Offices GIDEON KANNER

3000 No. Lake Boulevard Bercer & Norton

Post Office Box 7740 A Law CorRPORATION

Tahoe City, CA 96145 1620 26th Street

(530) 583-8542 Suite 200 South

Santa Monica, CA 90404-4040

(310) 449-1000

“Counsel of Record

Counsel for Petitioners

90 ¢cVo

QUESTIONS PRESENTED

1. In light of this Court’s clear holding that a tempo-

rary moratorium on land use can require compensation

for a temporary taking of property (First English Evangeli-

cal Lutheran Church v. County of Los Angeles, 482 U.S. 304

[1987]), is it permissible for the Ninth Circuit Court of

Appeals to hold - as a matter of law — that a temporary

moratorium can never require constitutional compensa-

tion?

2. Cana land use regulatory agency escape its con-

stitutional duty to pay for land taken for public use by

the expedient of enacting a series of rolling, back-to-back

“temporary” moratoria/prohibitions extending over a

period of 20 years, and then claiming that each of the

individual prohibitions on all use must be viewed in

isolation from the others and, when so viewed, none was

severe enough by itself to cross the constitutional taking

threshold?

In similar fashion, can such an agency escape the

constitutional obligation of compensation because a court

injunction issued in a different case barred issuing permits

to other landowners, while the agency’s own regulations

precluded all use of the Petitioners’ land?

3. Can a land use regulatory agency purport to

“protect the environment” at a major regional location

(here, Lake Tahoe) by compelling a selected group of

individual landowners to forego all use of their individ-

ual homesites, and thereby compel a de facto donation of

their land for public use without compensation?

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

The Petitioners, in addition to Tahoe-Sierra Preserva-

tion Council, Inc., are:

BRUCE A. AMES and JUDITH M. AMES

LAURA L. ANDERSON and JAMES E. ANDERSON

ALFRED J. ANTONINI

CAROLYN J. APPLEBY

EDWARD ARRI and BARBARA ARRI

GEORGE P. ASCHE and PRISCILLA J. ASCHE

ALPINE INVESTMENT

NICK BADAMI

M.A. BEHR and ESTHER M. BEHR (ESTATE OF)

CLARENCE C. BENEDICT

MAX B. BENTLEY and MINNIE R. BENTLEY

LEROY G. BLACK

RICHARD A. BLASCO and AIDA M. BLASCO

ARLETTE I. BROWN (ESTATE OF)

ARTHUR C. BYSTROM

ALLAN F. CASE and TERUKO CASE

EDWARD W. CISLO, JR. and

LA VERNE C. CISLO (SILVERMAN)

JAMES D. CLEMENT

ROBERT D. COLCLAZIER

JAMES R. COMPTON

CARL D. COOK

DOROTHY MAE COOK

HAROLD F. CORNELIUS

JOAN COSTA (MAILHOIT)

OLGA R. CROSETTI (ESTATE OF)

ALAN W. DAGG

GWENDOLYN IONE DAY

EDDY K. DAYNE (ESTATE OF) and ANNE M. DAYNE

RICHARD DEFENBAUGH and

TERESA DEFENBAUGH

iii

PARTIES TO THE PROCEED

ING AND

RULE 29.6 STATEMENT - Continent

JOHN J. DESTEFANO

R. DETEVIS and DIANE DETE

ROBERT E. DIXON and JUDITH E. — ot

STEVEN N. DOLIN and MARY T. DOLIN

MARILYN T. DURBIN

KENNETH W. EBERLE and BETTY

WILLIAM A. EDWARDS, JR. and rianmp men

FRANCES M. EDWARDS

ANDRE YANN EGASSE (ESTATE

J. ROY ELMS and ELIZABETH D. ~~

MOREY B. FLEMING (ESTATE

DOROTHY R FLEMING

LIAM J. FOLEY and SHIRLEY

DOUGLAS H. FORD (ESTATE OF) ronmend

FRANK A. FOTI and ROSE A. FOTI

JUDITH ANN FRIEDMAN

W.C. FROELICH, INC.

CLIFFORD A. FROST and LORRAINE

MOSES D. GARAY and ROSE GARAY —

io M. GARCLA and LOIS A. GARCIA (MOSS)

\W. GASSER and ROSE GASSER

Louls GEORGE and ELIZABETH GEORGE

ANNA F. GERACI and SALVATORE GERACI

ERNEST O. GERMANN and VIRGINE M. GERMANN

KURT A. GRAF and NELLIE

ROBERT U. GRANT o GBAP

ROGER DALE GRESHAN

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

CHARLES S. HANSON, JR. and

VIRGINIA R. HANSON

WILSON L. HARRELL

DAN M. HAUSERMAN

WAYNE F. HESS and LORRAINE E. HESS

DOUGLAS J. HINDS and MARIAN O. HINDS

J.C. HINTON and LA VAUN E. HINTON

DONALD I. HITT

DONNA IVY

CARLTON S. JAMES

K.D. JEFFERSON and WINNIFRED A. JEFFERSON

EDWARD N. JELLINS (ESTATE OF) and

JANET L. JELLINS

RUDOLPH JOHNSON and PATRICIA JOHNSON

ARNE JORGENSON ;

VINCENT S. KEELE and TEDDYANNA P. KEELE

ROY KERTON and LADONNA KERTON

MIKLOS J. KISIDAY and VALIRIA E. KISIDAY

VIRGINIA J. KOTECKI

PETER LANGE

OLAF O. LARSON

CHARLES W. LEW

ROBERT E. LIVESAY and FRANCES M. LIVESAY

(ESTATE OF)

HENRY G. LOUIE and LOUIS LOUIE

IAN D. MACGREGOR

MELVIN J. MADDEN and RUTH L. MADDEN

MARIO A. MANDOLI and ALICE M. MANDOLI

ANTHONY JOHN MARAN

DAN H. MARSHALL

LEONARD MAYRISCH, JR.

EDWARD J. MCCARTHY

HALL B. MCELREE and GEORGETTA B. MCELREE

FRANK J. MERRITT and SHARON L. MERRITT

CHARLES S. MITCHELL

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

ERNESTINE H. MOORE (ESTATE O

ANDREA C. MONIZ 1

ARTHUR L. MONTERO

HOWARD V. MORE

DEAN L. MORGAN

EMIL A. NECHVATAL (ESTATE OF) and

BERNICE M. NECHVATAL

canes ——

J. NORRIS and JACQUELINE NORRIS

PETER PANOS and SOPHIA PANOS

EDDIE R. PEDERSEN and DORIS J. PEDERSEN

MERLIN A. PORTER and FERN K. PORTER

FRANK A. QUADROS and FRANCES M. QUADROS

sate ae a RAMSEY and LINDA R. RAMSEY

ALADO and EPHINE M. |

os . JOS M. REGALADO

ROBERT W. RIEB

QUENTIN H. RINK

GEORGE R. ROBINSON

ROCKY RIDGE

LARRY D. RUDY

EUGENE SAKAI and BETTY SAKAI

JOHN G. SANCHEZ (ESTATE OF) and

Be M. SANCHEZ

. SARRO (ESTATE OF) and ELEANOR M.

SARRO

PATRICK N. SATALINO |

DONALD E. SAUNDERS (ESTATE OF) and

DAVID J pon ph

‘ and SHARON L. SHERD

SEIJI SHIBA : ws

BRUCE E. SIMKINS

J. ROCKWELL SMITH and PATRICIA SMITH

BERTRAM S. SOLOMON and SYLVIA M. SOLOMON

MARK THOMAS SPRAGGINS

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

EDWARD K. STEARNS

FREDERICK A. STREIB and ROSEMARY STREIB

SUGARPINE INVESTMENTS, INC.

A.J. SULME

DONALD P. SWAN

TAHOE ALPINE PROPERTIES LTD.

WILLIAM E. THACKREY and

SYLVIAN E. THACKREY

LORENE THOMAS

LINDA A. THOMPSON and ALLAN J. THOMPSON

ROBERT E. TOLBERT and IRENE TOLBERT

FRANK W. TRABUCCO and MARY S. TRABUCCO

JAMES R. TREMBATH

DONALD PAUL TURNER and DORIS A. TURNER

NEALAND R. UNDERWOOD and

DELLA UNDERWOOD

ROBERT URSO

RICHARD G. VENTRESCO and

DARLEEN P. VENTRESCO

CAROLE A. WARD

WEST BAY ENTERPRISES

LAMBERT P. WILLE

ROBERT H. WILLIAMS (ESTATE OF)

WOODROW H. WILSON and BARBARA C. WILSON

JOHN A. WOLLMAN

ROBERT C. WORKS and PATRICIA W. WORKS

PETER I. YAMAMOTO (ESTATE OF) and

MIDORI M. YAMAMOTO

ENRIQUE J. ZOLLNER (ESTATE OF) and

P.F. ZOLLNER

THEODORE CAROL ZSUTTY and

ROSE MARIE ZSUTTY

VIRGINIA R. ZUCK

JEFFREY G. ZYBURA and LANA R. ZYBURA

RICHARD A. ALLISON

vii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

ALPINE INVESTMENT CO., LTD.

AMCO, INC.

PETER J. ANDERSEN and JANET I. ANDERSEN

DONALD F. ARCHIBALD and

VICTORIA ARCHIBALD

JEAN 1 L. ATHERTON

AVID E. BAKER and MAXINE A. BAKER

JOHN H. BAKER

PIERINO C. BARENGO

AMES E. BATEMAN and CHERYL J. BATEMAN

VINCENT A. BAUER and ALICE R. BAUER

JUNE F. BECKLER

DERRIL D. BERGT and PATRICIA

H.L. BIRR, Ill ee

LEROY G. BLACK and IDA B. BLACK

JEROME O. BLOMBERG

JOHN FRANKLIN BOYDSTON

LOUIS G. BRENNAN and CYNTHIA

ROBERT BRIDE eter eres

HARRIS J. BUCHBINDER

SAM CAMMI and LILLIAN A. CAMMI

MAUREEN B. CASSIDY —

VE ROCK ESTATES, A GENERAL PARTNE

WILLIAM M. CHARNEY ‘ —

TERRY BRADLEY CLARKE

GEORGE B. CLIFFORD

WILLIAM G. COLLINS, JR. and

BEVERLY R. COLLINS

THOMAS F. COMBS

Mans A. CONE and BEVERLY J. CONE

. COOKE and HELGA

JOSEPH J. COO! COOKE (ROGHERS)

JAMES ~

J. DORST and BEVERLY ANN DORST

JOESPHINE A. DUDEK and MICHAEL N. DUDEK

viii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

WIACZESLAW DUSS and VERNA DUSS

JAMES W. EHRENBURG and

PHYLLIS C. EHRENBURG

SARAH E. ERLACH

JAN J. ERTESZEK (ESTATE OF)

DONALD L. EVERINGHAM

GAYLE FISHER

MARIE G. GARLAND

HARRY F. GETZ (ESTATE OF) and BETTY J. GETZ

RUSSEL R. GOEBEL

THOMAS S. GOTO and HIDEKO GOTO

LYNN R. GRADY

BERT GRAFTON, JR. (ESTATE OF)

RICHARD L. GRAY (ESTATE OF) and FAYE L. GRAY

(ESTATE OF)

GREAT CALIFORNIA GRAY

RICHARD A. GRISWOLD and

MADELINE C. GRISWOLD

ROBERT V. HALE and MERLA J. HALE

WILLIAM L. HANE

JACK L. HARE and LAVINA L. HARE

KENNETH J. HARRINGTON

THOMAS A. HASLETT and STELLA M. HASLETT

WILLIAM J. HAVLEK and LEA M. HAVLEK

STEHEN J. HAYDEN and ANN HAYDEN

DENNIS L. HECKERSON

IRA W. HELGREN and CLAYTON E. HELGREN

ROBERT L. HELMS

LARRY D. HENRY

JAMES S. HETHERINGTON and

AUDREY O. HETHERINGTON

HAROLD ZANE HEWITT and RUTH B. HEWITT

THOMAS HILL

MALCOLM C. HODGE

RALPH W. INCE

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

INCLINE LAKE CORPORATION

aoe MARSHALL JELDERKS

L E. JOHNSON and MARGARET R

LLOYD O. JOHNSON ee

YMOND O. JOHNSON and CYNTHIA

LAWRENCE E. KATELHUT and en

VANESSA ANNE KATELHUT

VINCENT S. KEELE and TEDDYANN

GEORGE A. KELLNER oe

WILLIAM J. KELLY

DONALD B. KEOWN

PEARL S. KISHIMOTO

KEITH KLEIN

VALENTINE F. KLEIN and VALE LEIN

POLLY W. KLINE rpyeenti

BARRY L. KRAUSS and JUDITH KRAUSS

— B. LANGHAM

A. LARSEN and FERNE J. LARSE

WALTER W. LATIMER and ma E. ye

nat arid LAN and VIBEKE A. LAUGHLIN

CHEL ARD and PETER C. LE

DON LEONARD —

BERNICE LINDBERG

RONALD E. LIPORI

JOSEPH A. LUNNY, JR. and JOAN M. LUNNY

'PAULETTE L. LUTJENS, ET AL.

ALLAN D. LYNN

DUANE E. MACK (ESTATE OF)

GORDON MACLEAN

TERESA B. MALLEY (ESTATE OF)

ANLEY L. MARTIN (ESTATE O

LOUISE A. MARTIN coe

J. MCBRIDE

SIMOS MICHAELIDES and VIRGINIA

ROBERTA W. MOHLER a

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

MERILYN MORRISON

LEON J. MOSS (ESTATE OF) and CAROL L. MOSS

and DON E. MOSS and CARLENE L. MOSS

(ESTATE OF)

KATHY MULLIGAN

SUE M. MYERS

PATRICIA NADING (THOMPSON) (ESTATE OF)

JOHN F. NASH and MARY G. NASH

HILMER C. NELSON and LOUISE K. NELSON

(ESTATE OF)

MILTON NELSON (ESTATE OF) and

CECELIA NELSON

DAVID O. NERGER and SHIRLEY R. NERGER

KENNETH R. NORTON (ESTATE OF)

MYRL A. NYGREN and MAE NYGREN

WILLIAM O’BRIEN and DINAH O’BRIEN

WILLIAM PAYNTER and LEE PAYNTER

SAM PERRY

NEIL W. PLATH and VIRGINIA H. PLATH

RICHARD D. PROVOST and ADELE K. PROVOST

EDWARD RAHE

VAUGHAN S. REAMS

DONALD W. ROSENDAHL and

CAROLE L. ROSENDAHL

HORTENSE E. ROZMAN

THOMAS A. RUDY and ARLENE J. RUDY

NORMAN RUIZ and JULIE P. RUIZ

E. KENT SALAS and DOROTHY M. SALAS

LARAY SCHOUWEILER and E.F. SCHOUWEILER

RONALD C. SEIPEL and LUCRETIA E. SEIPEL

JACK SHELLY and CATHERINE SHELLY

BRYAN SHIEMAN and JOY L. SHIEMAN

FRANK C. SIMPSON

HAROLD F. SMILEY and BEULAH S. SMILEY

(ESTATE OF)

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

PHILIP E. SMITH

ALBERT B. SOLARI

ROGER C. STEELE a

WILLIAM D. STEWART and DOROTHY ART

LEWIS THIGPEN greases

RAYMOND B. THOMPSON (ESTATE OF)

RODNEY J. THORSEN and ROBERTA J. TH

(OLENBERGER) aspen

DAVID V. THRELKEL

pater none F. TISDELL

URTNEY TREMAINE and SHARON ¥. TREMAINE

me H. TREVOR

CHARD M. VALERIOTE and POLLY P. VALERI

LOUIS VARNESE and ANN MARIE VARNESE =

JOHN W. VIGLIONE and MARCIA C. VIGLIONE

SAL VITALE and OLLIE A. VITALE

LUCILLE WAGNER (ESTATE OF)

EDMOND E. WARD and DOLORES A.

THAD WILEY sae

JEAN WILTFONG

MARIAN H. WINGFIELD

JOHN A. WINN and ELLEN S. WINN

PETER W. WRIGHT and JUNE D. WRIGHT

DONALD E. ZWALD and SUZANNE ZWALD

To the extent that any of the foregoing are corpora-

tions, none has either parents or subsidiaries.

. 4

xii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT - Continued

The Respondents are:

Tahoe Regional Planning Agency, a separate legal

entity created pursuant to an interstate compact

between the States of California and Nevada; the

voting members of the governing body of the

Tahoe Regional Planning Agency including Tony

CLARK, CHESTER A. Gress, ALEXANDER Haacen, III,

Stan HANSEN, THomas Hsien, JAMES KiNG, ROBERT

Pruett, James S. Reep, Larry SEVINSON, THOMAS

Srewart, WituiAM D. SWACKHAMER, Peccy TWeDT,

RonaLD D. WesTERGARD and Norman C. Woops;

StTaTE OF CALIFORNIA; STATE OF NEVADA

eee

TABLE OF CONTENTS

SPT AG 5 64 Ken 6e'de cpemnwkencdatouneteseten teavads

I WHEN THIS COURT DECIDED FIRST

ENGLISH, AND HELD THAT A “TEMPORARY”

PLANNING MORATORIUM COULD CONSTI-

TUTIONALLY REQUIRE COMPENSATION, IT

LEFT NO ROOM FOR LOWER COURTS TO

HOLD TO THE CONTRARY ..................

A First English and Lucas Plainly Require Com-

pensation When a Land Use Regulation Pre-

vents All Economically Beneficial or

Productive Use For a Temporary Period of

Mi aaihecbdbsdunctkabssavhabetcechecs

B The Ninth Circuit’s Holding - That a “Tem-

porary” Planning Moratorium Can Never

Constitutionally uire Compensation -— Is

Flatly Contrary to First English ............

C Aside From Its Conflicts With Decisions of

This Court, the Ninth Circuit’s Decision Con-

flicts With Decisions of Other Lower Courts,

Creating Confusion That Requires This

Court’s Review to Resolve.................

xiv

TABLE OF CONTENTS - Continued

Page

II THE DECISION BELOW UNCONSTITU-

TIONALLY CONSCRIPTS PETITIONERS INTO

PROVIDING PUBLIC OPEN SPACE TO BENEFIT

THE PUBLIC WITHOUT COMPENSATION. ..... 23

III A ROLLING SERIES OF MORATORIA/USE

PROHIBITIONS IS FUNCTIONALLY NO DIF-

FERENT THAN A SINGLE, BLANKET PROHI-

BITION. THE GOVERNMENT CANNOT

EVADE ITS CONSTITUTIONAL OBLIGATION

TO PAY COMPENSATION BY SLICING ITS

REGULATION INTO BITE-SIZE PIE@ES ....... 26

CONCLUSION .....ccccccccccccccccccccvcscccveces 30

TABLE OF AUTHORITIES

Page

Cases

614 Company v. Minneapolis Community Dev.

Agency, 547 N.W.2d 400 (Minn. App. 1996) beé aenee 22

Agins v. City of Tiburon, 24 Cal.3d 266 (1979), aff'd

on other grounds, 447 U.S. 255 (1980)... . . A sans 21

Agins v. City of Tiburon, 447 U.S. 255 (1980)......... 19

Armstrong v. United States, 364 U.S. 40 (1960)..7, 23, 25

Arverne Bay Construction Co. v. Thatcher, 278

I SI ebies ASanchakevddecmesnaverins susie 25

Barbaccia v. County of Santa Clara, 451 F. S

Boston Chamber of Commerce v. Boston, 217 U.S. 189

eter Sh tahddbnbsteudebednesésdeedénidinscccs 12

Chicago, R.I.&P.R. Co. v. United States, 284 U.S. 80

PNSSEnPdedhendLécducksndtbidesdcateunceacseces ds 25

City of Monterey v. Del Monte Dunes, 526 U.S. 687

DAbabiabenecavehescetbehaceeadanees 3, 4, 9, 19, 29

Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994) .... 24

Cumberland Farms, Inc. v. Town of Groton, 247

ee 21

Dolan v. City of Tigard, 512 U.S. 374 (1994)....... 16, 19

Eastern Enterprises v. Apfel, 524 U.S. 498

2131 (1998)......... ‘“ Se RSOR _ arr: 25

Eberle v. Dane County Bd. of Adjustment, 227

609 (1999)...... Arnel te PRES reechencos le”

First English Evangelical Lutheran Church v. Coun

of Los Angeles, 482 U.S. 304 (1987).......... , passim

xvi

TABLE OF AUTHORITIES - Continued

Page

Florida Rock Indus., Inc. v. United States, 18 F.3d

1560 (Fed. Cir. 1994).........ccceccccccvesccccvese 24

Florida Rock Indus., Inc. v. United States, 45 Fed. Cl.

21 (Fed. Cl. 1999) .....cccccvcccccccccccvvcssscces 25

Gordon v. City of Warren, 579 F.2d 386 (6th Cir.

197G).. .ccccdvcsccsedsteesnscesacnse een ennneeneE 28

Griggs v. Allegheny County, 369 U.S. 84 (1962) ....... 25

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) .... 14

Hurley v. Kincaid, 285 U.S. 95 (1932).....-+0eeeeeeees 23

Kaiser Aetna v. United States, 444 U.S. 164 (1979)...7, 24

Kimball Laundry Co. v. United States, 338 U.S. 1

(194D) oo cccccccvcccccccsccsccccsssescsuseueseeeeee 16

Lake Country Estates v. Tahoe Reg. Plan. Commn.,

440 US. 391 (1979) ......cccccccccccccccsscsvcceees 5

Landgate v. California Coastal Commn., 17 Cal.4th

1606 (199E).. oc cccccccccccccccocccsccsneeeeeeneeeee 22

Lockary v. Kayfetz, 587 F. Supp. 631 (N.D. Cal.

BOOED... ccccccccccccdecscvecssteeeneeuenenaaeenee™ 28

Loretto v. Teleprompter Manhattan CATV Corp., 458

US. 419 (1962)... cccccccccccccvccccsscscscsseses 24

Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992)... cccsccccccdcccescess 5, 7, 10, 14, 22, 28

Lucas v. South Carolina Coastal Council, 424 S.E.2d

4B4 (B.C. 1992) 2. cccvcsccccccccccsecsosonss 15, 16, 22

Lynch v. Household Fin. Co., 405 U.S. 538 (1972)...... 12

MacDonald, Sommer & Frates v. Yolo County, 477

US. 340 (1986) ..ccccccccdccccccsscccsscssececs 26, 28

xvii

TABLE OF AUTHORITIES - Continued

Page

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .... 22

Preseault v. I.C.C., 494 U.S. 1 (1990) .................. 4

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)..... 24

San Diego Gas & Elec. Co. v. Ci San Diego, 450

US. Gi (1988) ............ hdd tl Aha 20

Sintra, Inc. v. City of Seattle, 829 P.2d 765 (Wash.

I a i i a 22

Suitum v. Tahoe Reg. Plan. Agency, 520 U.S. 725

SET y Fe hoes it 3, 5, 29

Tabb Lakes, Ltd. v. United States, 10 F.3d 796

ose eager 9p pease eee i. oe

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

— Planning Agency, 216 F.3d 764 (9th Cir.

Nee rene es cnccccceee 111

United States v. Dickinson, 331 U.S. 745 (1947)... 26, 27, 28

United States v. General Motors Corp., 323 U.S. 373

EEE EEL EEE LE 16

eaten...

en ....s

Mattes ...2

“NWad 258 (Minn. App. 1982). 82,

xviii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

2B US.C. § 1256... ccccccccccccccccces-cessseecces 4

28 U.S.C. § 1292(B) .... 2... cerrccccccccerceceeccecees 3

42 U.S.C. § 1983.2... cece cree eee eeeeeeeeeeeeeeces 4,5

Texts

Branch, Melville, The Sins of City Planners, 42 Pub.

AG. Bae. 1 (CIGBE).. wc ccccccccccccccccccccccccccces 19

Cobb, Rodney, Land Use Law: Marred by Public

Agency Abuse, 3 Wash. U.J.L. & Policy 195 (2000) .... 19

Delogu, Orlando, The Misuse of Land Use Control

Powers Must End: Suggestions for Legislative and

Judicial Responses, 32 Me. L. Rev. (1980) ........ 19

Epstein, Richard, Takings: Private and

the Power of Eminent Domain (1986)............. 27

Gallardo, Charles, “After 29 Years, Tiburon House

Going Up: Home OK'd But Not For Original

Owner,” (Marin) Independent Journal, p. B-6,

Gat, SE, GHEE ccc cccncccccucétccccbbovcccsevescecss 19

Tribe, Laurence, American Constitutional Law (2d

OB, TIGR . ccvccccocccescccctcoscccnscesesonencsses 27

Walter, Appraisal Methods and Regulatory Takings:

New Directions For Appraisers, Judges, and Econo-

mists, 63 Appraisal J. 331 (1995) ..............006. 22

PETITION FOR WRIT OF CERTIORARI

Petitioners Tahoe-Sierra Preservation Council, Inc., et

al., respectfully pray that a Writ of Certiorari issue to

review a final judgment and order of the United States

Court of Appeals for the Ninth Circuit, and to resolve a

clear conflict of decision between this Court and the

Ninth Circuit, as well as the Ninth Circuit and other

courts.

OPINIONS BELOW

The Ninth Circuit Court of Appeals’ opinion w

filed on June 15, 2000 and is reported as Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning Agency,

216 F.3d 764 (9th Cir. 2000). (App., p. 1.)! The timely

Petition for Rehearing was denied, along with the sugges-

tion for Rehearing En Banc, on Oct. 20, 2000. Five active

Circuit Judges dissented from the denial of Rehearing En

Banc because the panel opinion is in direct conflict with

an earlier decision of this Court. The Order and Dissent

are published at 228 F.3d 998. (App., p. 156.)2

As the five dissenting Judges aptly summarized it:

“The panel does not like the Supreme

Court’s Takings Clause jurisprudence very

much, so it reverses First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S.

304 (1987), and adopts Justice Stevens’ First

English dissent.” (App., p. 157; 228 F.3d at 999.)

? The Ninth Circuit's opinion affirmed the of the

judgment denying relief to the Petitioners and reversed the part

of the judgment granting partial relief. The result of the

» ener gem aged wge rovw fone Renenallar mda

property owners decades of total regulatory nullification

all economically viable use of their land. ws d

2 Judge Kozinski authored the dissenting opinion, joined

by Judges O’Scanniain, Trott, T.G. Nelson, and Kleinfeld.

The Jan. 15, 1999 decision of the District Court

appears at 34 F.Supp.2d 1226 (D. Nev. 1999). (App., p. 57.)

A related opinion dealing with another issue decided by

this same appeal appears at 992 F. Supp. 1218 (D. Nev.

1998). (App., p. 128.)

This is the fourth decision rendered during the past

decade by the Ninth Circuit in these protracted proceed-

ings. The earlier ones (all bearing the same name as the

case at bench) appear at: 911 F.2d 1331 (9th Cir. 1990), cert

denied, 499 U.S. 943 (1991) (referred to in the record as

TSPC I); 938 F.2d 153 (9th Cir. 1991) (TSPC II); and 34 F.3d

753 (9th Cir. 1994), cert denied, 514 U.S. 1036 (1995) (TSPC

Ill). Some of these decided issues in favor of the Peti-

tioners, but the panel below refused to enforce them. This

is thus precisely the kind of major constitutional litigation

with widespread implications that warrants closure by a

definitive opinion from this Court to settle issues that

have bedeviled courts and litigants for more than a

decade, and that have caused dissention among appellate

Judges.

JURISDICTION

Through a series of rolling moratoria/ prohibitions on

land development, the Tahoe Regional Planning Agency

(TRPA) has kept the 449 individual Petitioners (referred

to collectively by their organizational name, Tahoe-Sierra,

or simply as the landowners) from making any use of

their land since 1981,3 while being required to pay taxes

3 The Petitioners are all individuals. Their only relationship

is that each of them owns a vacant residential lot near Lake

Tahoe. These are not commercial developers; these are ordinary

individuals who wanted only to build individual homes for

their own use.

on their useless land. Among other things, these land-

owners have been subjected to the same absolute prohibi-

tion on development in a “Stream Environment Zone”

this Court examined in Suitum v. Tahoe Reg. Plan. Agency,

520 U.S. 725 (1997).

mabes Aan oO 3 this suit in 1984 under the Civil

, ‘S.C. § 1983, seeking compensation for

the taking of property effected by this total use prohibi-

tion. (Compare City of Monterey v. Del Monte Dunes, 526

U.S. 687 [1999] [affirming compensation via § 1983 for a

temporary regulatory taking].) After suffering through an

agonizingly slow litigational process, the landowners saw

their constitutional rights (and their faith in the judicial

system) at least partially vindicated when the District

Court held in 1999 - 15 years after suit was filed - that

TRPA had indeed prevented them from making any eco-

seulinaae Productive use of their land from 1981 to 1984,

res in a temporary taking of their property and

requiring compensation under First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304

(1987).

Following the District Court’s extensive findings of

fact and its opinion finding TRPA liable for some of the

landowners’ damages, that court certified the liability

issues for appeal (in lieu of holding an immediate valua-

tion trial) and the Court of Appeals accepted them pur-

suant to 28 U.S.C. § 1292(b). The Ninth Circuit affirmed in

part and reversed in part in such a way that all relief was

denied. The only thing remaining on remand would be to

formalize that death knell.

Though avoiding saying so directly, the Ninth Circuit

refused to follow this Court's dodo in First English.

However, as demonstrated in Judge Kozinski’s opinion

* When the suit was filed, there were nearly 700 plaintiffs.

Over the decades, 55 of them passed away and others,

exhausted by the litigation, dropped out. After 20 years, 449

continue to fight to protect their constitutional rights.

for the five dissenting Judges, the opinion not only disre-

garded this Court’s holding but, instead, applied Justice

Stevens’ dissent in First English.5 This Court's jurisdiction

is invoked pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment, United States Constitution:

“ ... nor shall private property be taken for

public use, without just compensation.”

Fourteenth Amendment, United States Constitution:

“Section 1... nor shall any State deprive any

person of life, liberty or property without due

process of law;... ”

42 U.S.C. § 1983:

“Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Colum-

bia, subjects, or causes to be subjected, any citi-

zen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.”

Pertinent portions of TRPA’s ordinances and regula-

tions are reproduced in the Appendix at p. 168.

5 Neither of the other two dissenting Justices in First

English concurred in this aspect of Justice Stevens’ dissent. It

may be worth noting that, when this Court reaffirmed and

applied First English three years later, Justice Stevens followed

stare decisis and joined the Court’s unanimous opinion, rather

than reiterate his dissenting views. (Preseault v. I1.C.C., 494 U.S. 1

{1990].) He did the same thing more recently in joining the

Court’s opinion in Del Monte Dunes. Apparently, a majority of

the Ninth Circuit's active Judges still hews to a dated notion

that is no longer endorsed even by its original author.

STATEMENT OF THE CASE

The Petitioners - owners of some 400 individual,

lawfully subdivided, single-family residential lots around

Lake Tahoe - are mostly married couples who bought

their lots years ago to build individual retirement, vaca-

tion, or permanent homes for themselves and their fami-

lies. The lots were all located in partially developed

residential neighborhoods with paved roads and utility

service. All of the landowners bought their lots many

years before the regulations challenged here were even

being considered. Their expectation to use their land the

same as their neighbors was thus as real as it was reason-

able. (Compare Lucas v. South Carolina Coastal Council, 505

U.S. 1003 [1992] [taking occurred when new regulations

prevented buyer of last two undeveloped lots in a subdi-

vision from building].) |

However, for the past two decades Petitioners have

been prevented from building their homes (or anything

else) by a series of rolling prohibitions imposed by the

Respondent Tahoe Regional Plai.ning Agency. There were

four formal prohibitions, interspersed with informal ones

_ to bridge some gaps, the upshot of which has been a

complete prohibition of any use since 1981.

This Court has some familiarity with both TRPA’s

history and one of the use prohibitions involved here

(i.e., no building in a “Stream Environment Zone” [SEZ])

from its recent experience with Suitum v. Tahoe Reg. Plan.

Agency, 520 U.S. 725 (1997). The same absolute prohibi-

tion this Court saw for Mrs. Suitum’s SEZ land has been

true for the SEZ lands in this case, and for the rest of the

unanimous Court that TRPA is amenable to suit by landowners

under 42 U.S.C. § 1983, see Lake Country Estates v. Tahoe Reg.

Plan. Commn., 440 U.S. 391 (1979).

land, too.? As the District Court found on ample evi-

dence, the TRPA restrictions precluded all economically

beneficial or productive use of the properties now before

this Court. (App., p. 99.)®

Many have sung the environmental praises of Lake

Tahoe; none disputes its glories. It is evidently unique in

the depth of its clarity - and therein lies both its blessing

and its curse. Because of concerns that the lake’s clarity

was being degraded by algae being fed by nutrients

washing into the lake from areas that were being devel-

oped, Congress (in 1969) approved a Compact between

California and Nevada that created TRPA to control

development around the lake. (App., p. 6.)

The Compact was amended in 1980 to strengthen

TRPA’s mandate. (App., p. 7.) Thereafter TRPA, evidently

heedless of the distinction between regulation and confis-

cation, began its series of rolling moratoria/prohibitions

that has precluded all economically productive use of

each of the homesites owned by these 449 landowners

ever since.

One thing needs to be clearly said at the outset.

These landowners are not contesting TRPA’s power to

regulate, or even to prevent use of their land to the extent

that is necessary to fulfill its mission. Rather, they are

contesting only the constitutional legitimacy of TRPA’s

7 TRPA uses a system of 7 classes to categorize land in its

jurisdiction. Classes 1, 2, 3, and SEZ are the most heavily

regulated. Each of the parcels at issue here is in one of those

classes.

8 Although it reversed the District Court’s legal conclusion

that this absolute prohibition resulted in a temporary taking

that required compensation, the Court of Appeals expressly left

the trial court findings of fact - including this one -

undisturbed. (App., p. 40, fn. 30.)

9 See, e.g., App., pp- 59-60, referring inter alia to Mark

Twain, President Clinton, and Vice President Gore.

attempt to preclude all productive use without compensa-

tion.1° They seek only the compensation the Constitution

promises when land regulation goes so far that it

becomes a de facto taking for an obvious public use.1! The

factual scenario that follows needs to be read with that in

mind.

Ordinance 81-5 (App., p. 168) was the first in the

unremitting series of rolling prohibitions. Effective Aug.

24, 1981, it prohibitc ' residential use - i.e., the use for

which the properties were zoned and for which the land-

owners intended to use them - in parts of the Lake Tahoe

Region involved in this litigation, i.e., lands in Classes 1,

2, 3, and SEZ. The moratorium was to remain in effect

until TRPA adopted amendments to the Regional Plan. A

year later, on Aug. 26, 1982, TRPA established environ-

mental threshold carrying capacities which would deter-

mine the maximum capacity for development of each lot

in the area. The Compact required TRPA to complete its

work on the Regional Plan within one year of that date.

As time passed, TRPA recognized it could not meet that

goal, and so, a year later, on Aug. 26, 1983, it adopted

Resolution 83-21 (a 90-day temporary moratorium) sus-

pending all permitting activities pending completion of

the new Regional Plan. (App., p. 170.)

The 90-day moratorium that rolled on through Reso-

lution 83-21 was not enough, and TRPA informally

10 This Court has frequently noted that the underlying

substantive validity of governmental action is quite different

from the constitutional mandate to pay compensation. See, e.g.,

Kaiser Aetna v. United States, 444 U.S. 164, 174 (1979), and other

cases cited post at p. 24, fn. 26.

11 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S.

1003, and other cases cited post at p. 25, fn. 27. The Tahoe Basin —

i.e., TRPA’s area of control - contains 501 square miles. The lake

itself is 191 square miles. The burden of preservation is plainly a

public one that cannot be thrust on the individual owners of a

few hundred residentially zoned and subdivided lots.

(Compare Armstrong v. United States, 364 U.S. 40, 49 [1960].)

allowed it to keep rolling from Nov. 26, 1983 until April

26, 1984, when it finally adopted its new Regional Plan.

(App., p. 75.) The 1984 Plan (Ordinance 84-1; App.,

p. 172) made no change in the use prohibition inflicted on

these landowners. Although it appeared to permit devel-

opment elsewhere in the Tahoe Basin, all of the homesites

in this litigation remained untouchable. The prohibition

simply continued to roll indefinitely.

The State of California (TRPA’s staunch ally and

defender in this case) sued TRPA when the 1984 Plan was

adopted because it felt the parts of the new plan dealing

with other landowners did not comply with the restrictive /

protective demands of the Compact. Shortly thereafter,

Judge Garcia of the Eastern District of California enjoined

TRPA from approving any building projects. That injunc-

tion remained in force until TRPA promulgated another

revised Regional Plan in 1987. (App., p. 77.)

But the only effect of Judge Garcia's injunction was to

prevent TRPA from allowing those other landowners, not

these Petitioners, to develop their properties. Had there

been no such injunction, the 1984 Plan would have pre-

cluded all development on Class 1, 2, 3, and SEZ lands

anyway. The injunction thus had no impact on these

landowners: it “prevented” TRPA from issuing permits to

these people, who could not have obtained permits in any

event for reasons unrelated to the injunction. In short, the

prohibition on use of their properties that had started in

2981 continued on, unabated, through 1987.

And beyond. For these petitioning landowners, the

impact of the 1987 Plan was to continue what had gone

before. The use prohibitions that had previously been

labeled “temporary” simply rolled on. Thus, under none

of the various ordinances, resolutions, informal mor-

atoria, or formal plans TRPA issued beginning in 1981,

was there anything economically beneficial or productive

that these landowners could do with any of their individ-

ual homesites. Through this series of rolling enactments,

TRPA has effectively blocked construction of their homes

for the past two decades and that prohibition has become

permanent. The only thing left for the landowners to do

is to continue holding bare legal title to something that

cannot be productively used or to sell it at bargain base-

ment prices to entities established by the two states and

the federal government for a salvage operation, while

paying property taxes and bearing all other obligations of

property ownership in the interim.12

Procedurally, this case has been a nightmare for the

landowners. They have been in litigation for the better

part of two decades and have nothing to show for it but

the courts’ “thinly disguised contempt” for their constitu-

tional rights.5

They have been to the Ninth Circuit four times, and

before the District Court on countless occasions." In all

those hearings, the lower courts refused to acknowledge

the unified nature of TRPA’s course of action that resulted

in a continuous prohibition of all use from 1981 through

the present. Thus, as shown by the grid prepared by the

_!2 Because of the impact of TRPA’s rolling use prohibitions,

the majority of the landowners succumbed and sold their

parcels for far less than fair market value to one of these

scavenging agencies. The agencies paid only the bare residual

value of unusable land. The Petitioners seek the difference so

they may be made constitutionally whole, a result similar to the

one upheld by this Court in Del Monte Dunes.

13 TSPC I, 911 F.2d at 1346 (Kozinski, J., dissenting in part).

14 This began as two separate suits, one filed in California

and one in Nevada, pursuant to the venue provisions of the

Compact. After separate District Court rulings resulted in

separate Ninth Circuit opinions, the matters were consolidated

in the Nevada District Court. A 1998 decision by that court

noted that the case had “generated at least seven published

opinions so far.” (App., p. 129; 992 F. Supp. at 1219, fn. 1;

emphasis, the court’s.) Since then, there have been at least two

more District Court opinions, one more Ninth Circuit opinion,

and a dissent from the denial of en banc reconsideration,

swelling the number of published opinions in this Dickensian

litigation nightmare to eleven.

Ninth Circuit (App., p. 11), the lower courts sliced and

diced TRPA’s actions into four pieces and analyzed each

piece as though the others did not exist. Slicing TRPA’s

use prohibitions like so much baloney, the District Court

refused to consider the bulk of the time period during

which all use was prohibited (1984 through the present)

(App., pp. 107-108, 155) - and then the Ninth Circuit

eliminated the earlier three years (App., p. 40).

The District Court awarded compensation for a tem-

porary taking for 1981 through 1984, relying on this

Court’s holdings in Lucas, 505 U.S. 1003 for the ag ope

tion that a regulation that deprives a landowner of al

economically beneficial or productive use is a compens-

able taking, and First English, 482 U.S. 304, for the propo-

sition that a temporary taking during a planning

moratorium requires compensation the same as a perma-

nent taking. The District Court denied any compensation

for the impact of the 1984 Plan, asserting that it was

Judge Garcia’s injunction that prevented oer oo

issuing, not the 1984 Plan. (App., p. 106.)? Finally, the

District Court denied any relief from the 1987 continua-

tion of the use prohibitions on these lots on the ground

that the statute of limitations had run by the time the

15 This, of course, ignored the indisputable fact that these

landowners could not have obtained permits with or without the

injunction, because the 1984 Plan forbade development on their

lots. The injunction prevented TRPA from granting

development permits to other landowners, not these. As Judge

Noonan expressed it at the oral argument of TSPC III, “It seems

to me this is like a situation where the culprit pushes @ person

off the top of a high-rise building, and while the body is falling,

someone else reaches out a window and shoots a bullet into the

falling body.” The analogy is apt. By the time the injunction

issued, the 1984 plan had already killed the ability of these

landowners to use their land. The injunction merely maimed the

corpse.

landowners amended their complaints to seek compensa-

tion for the effects of the 1987 event.16

The Ninth Circuit affirmed insofar as the District

Court denied relief, and reversed the limited relief the

District Court had granted. The Ninth Circuit simply

refused to follow this Court’s decision in First English,

which held that a temporary planning moratorium could

be a taking (albeit a temporary one) that requires com-

pensation for the period when use is forbidden.17

Although both First English and the case at bench

involved temporary planning moratoria in effect for a

finite period of years, the court asserted that it was “flatly

incorrect” that First English had any impact here. (App.,

p. 29.) Then, viewing each period separately, the court

held that each of the properties retained substantial value

(because the life of property is theoretically infinite and

there could be use left at the end of the moratorium) and

therefore there could be no taking, even “assum[ing]

arguendo [in light of the District Court's findings] that the

moratorium prevented all development in the period dur-

ing which it was in effect.” (App., p. 34, fn. 20).

16 This analysis can hold true only if the 1987 Plan is

viewed as an entirely separate “event,” rather than a

continuation of the use prohibition that TRPA had enforced on

these lots since 1981. It also required both the District Court and

the Ninth Circuit to disregard an earlier Ninth Circuit panel’s

decision in TSPC III (on which both rehearing and certiorari had

been denied) that TRPA was wrong on the one statute of

limitations issue it pressed fervently and that it had waived the

rest. Denial of an en banc rehearing deprived the rest of the

Ninth Circuit of the opportunity to clear up this internal conflict

on its own.

7 The Ninth Circuit’s holding also conflicts with its earlier

decisions in TSPC I and TSPC II, holding that such a temporary

taking could be found. Denial of an en banc rehearing also

deprived the rest of the Ninth Circuit of the opportunity to clear

up this internal conflict on its own.

Needless to say, the Ninth Circuit’s bizarre analysis

ignores the fact that, while the “life of the land” may be

indefinite, the lives of its mortal human owners are not,

and using this approach simply strips human owners of

all they own and enjoy. As Justice Holmes put it, the Just

Compensation Clause of the Constitution “deals with

people, not with tracts of land.” (Boston Chamber of Com-

merce v. Boston, 217 U.S. 189, 195 [1910].) More recently,

this Court reaffirmed this concept by stressing that

“Property does not have rights. People have rights.”

(Lynch v. Household Fin. Co., 405 U.S. 538, 552 [1972].)

The landowners’ timely Petition for Rehearing and

rehearing en banc were both denied. (App., p. 157.) Five

active Circuit Judges dissented, in an opinion that dem-

onstrates the Ninth Circuit’s conflict with First English,

Lucas, and other decisions. Their dissent concludes:

“The panel’s desire to ease local governance

does not justify approving means that violate

rights secured by the Fifth Amendme:.« as

authoritatively interpreted by the Supreme

Court.” (App., p. 167; 228 F.3d at 1003.)

“By voting not to rehear, we have neglected our

duty and passed the burden of correcting our

mistake on to a higher authority.” (App., p. 157;

228 F.3d at 999.)

REASONS FOR GRANTING THE WRIT

WHEN THIS COURT DECIDED FIRST ENGLISH, AND

HELD THAT A “TEMPORARY” PLANNING MOR-

ATORIUM COULD CONSTITUTIONALLY REQUIRE

COMPENSATION, IT LEFT NO ROOM FOR LOWER

COURTS TO HOLD TO THE CONTRARY

As the five dissenters aptly put it below, the Ninth

Circuit “does not like the Supreme Court’s Takings

Clause jurisprudence very much, so it reverses First

English... .” (App., p. 157; 228 F.3d at 999.) Just so.

In First English, this Court examined a temporary

planning moratorium that forbade all construction in a

recently flooded area, that was in effect for 2'/2 years, and

that was designed to give the County’s planners time to

determine what uses ought to be permitted and what

conditions ought to be placed on construction in a fiood

hazard area. After the California courts dismissed the

case without trial on their theory that — as a matter of law

~ such action could not be a compensable taking, this

Court reversed. This Court concluded that “on these facts

the California courts have decided the compensation

question inconsistently with the requirements of the Fifth

Amendment” (First English, 482 U.S. at 311), and that

compensation could be required under those facts. Surely,

the legal principles applied in First English would not

have led to a different conclusion if the moratorium had

consisted of successive monthly freezes, rather than the 2

1/2 year moratorium before the Court.

Here, TRPA enacted a series of moratoria/prohibi-

tions that were longer than those in First English, and

were designed to prevent all development while planners

determined what uses ought to be permitted and under

what conditions construction ought to take place. Exam-

ining two building prohibitions that were labeled “tem-

porary,” the Ninth Circuit concluded that temporary

planning moratoria could never - as a matter of law -

require compensation. (App., p. 40.) That court defied the

First English holding.

Just as was done thirteen years ago with the Califor-

nia judiciary, it is time to inform federal Judges who sit in

California that their view of compensation for temporary

takings is “inconsistent with the requirements of the Fifth

Amendment” as well. First English, whatever its detrac-

tors may say, was not an ideological decision. The six-

Justice majority consisted of the Chief Justice along with

Justices Brennan, White, Marshall, Powell, and Scalia, a

group that spanned the Court’s spectrum.

First English and Lucas Plainly Require Compensation

When a Land Use Regulation Prevents All Economically

Beneficial or Productive Use For a Temporary Period of

Time

The landowners’ position is straightforward, and is

based primarily on two of this Court’s decisions: First

English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304 (1987) and Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992). In Lucas, this Court

held that a taking occurs when a land use regulation

prevents all economically beneficial or productive use. In

First English, this Court held that — for 5th Amendment

purposes — there is no difference between a taking for a

period of years (i.e., a temporary taking) and a perma-

nent taking of all interests. Both cases bear similarities to

this one, in that government agencies were seeking to

delay or prevent development in order to advance envi-

ronmental goals. This Court could not have been more

clear that the Constitution protects against uncompen-

sated takings of both kinds - even where the public use

behind the regulation is environmental protection.'®

Lucas involved South Carolina’s effort to protect and

preserve its shoreline. After all but two lots in an exclu-

sive oceanfront residential subdivision had been built, a

new law prevented any further construction. This Court

held that the owner of the last two lots was entitled to

compensation if the new law precluded all economically

beneficial or productive use of his land. As long as the

law prevented such use, nothing else mattered. The tak-

ing was termed “categorical.” (505 U.S. at 1015.) On

18 “Public use” is coterminous with the exercise of the

regulatory police power. (Hawaii Housing Auth. v. Midkiff, 467

U.S. 229, 240 [1984].)

remand, the South Carolina Supreme Court found a tem-

porary taking as a matter of law and ordered compensa-

tion. (Lucas v. South Carolina Coastal Council, 424 S.E.2d

484 [S.C. 1992].)

First English involved a planning moratorium - the

same as here. Following a flood, the county froze devel-

opment while it studied the situation. After concluding

that the remedy for any kind of taking was compensation

(482 U.S. at 315), this Court addressed the question

whether the length of time involved made any difference.

The dissent thought it did. (482 U.S. at 322.) The majority

disagreed:

“++ ‘temporary’ takings which, as here, deny a

landowner all use of his property, are not differ-

- 7 kind ah avert takings, for which

onstitution clear] uires compensation.”

(482 U.S. at 318.) ra %

Therefore, held the Court, even though such a hold-

ing will undoubtedly impinge on the freedom and flex-

ibility of land use planners (482 U.S. at 321), “invalidation

of the ordinance without payment of fair value for the

use of the property during this period of time would be a

constitutionally insufficient remedy” (482 U.S. at 322).

Compensation for the lost use of the property while the

moratorium held the land fallow was held constitu-

tionally mandatory.

The Ninth Circuit’s Holding - That a “Temporary” Plan-

ning Moratorium Can Never Constitutionally Require

Compensation - Is Flatly Contrary to First English

: The dissenters got it right: the Ninth Circuit doesn’t

like this Court’s takings jurisprudence. Its decisions in

this litigation have, bit by bit, undermined these land-

owners’ case. In its first contact with this litigation, the

nominal dissenter in a strange three opinion decision’®

noted that the per curiam opinion appeared to harbor

“thinly disguised contempt” for the landowners’ plea

that their Bill of Rights concerns be accorded the same

respect as other Bill of Rights concerns (TSPC I, 911 F.2d

at 1346).2° In the final decision in the instant case, the

panel went so far as to de facto “reverse” decisions of this

Court in order to deny relief. But its latest decision sim-

ply goes too far in its effort to nullify First English and

Lucas.

To rationalize its deviance from First English, the

court below concocted a theory it called “conceptual sev-

erance” (adding insult to injury, the court said the land-

owners proposed that theory, when they never had), and

concluded that such “severance” of different property

interests (here, a taking for a period of years) could not

legally be done, i.e., that unless it is a permanent depriva-

tion, it cannot be a taking. (App., p. 33.) The short answer

to that assertion is that it defies First English, where this

Court concluded: “Nothing in the Just Compensation

Clause suggests that ‘takings’ must be permanent and

irrevocable.” (482 U.S. at 318.) Moreover, government

agencies routinely condemn various interests in land for

temporary periods. (See Kimball Laundry Co. v. United

States, 338 U.S. 1 [1949]; United States v. General Motors

19 TSPC I, 911 F.2d 1331, was heard by Judges Fletcher,

Reinhardt, and Kozinski. It contains a “Per Curiam” opinion

[apparently by Judge Reinhardt, who also authored the opinion

below], a “special concurrence” by Judge Fletcher, and a

nominal “dissent” by Judge Kozinski, which the dissenter

characterized as more of a “disagreement,” given the fact that

there were not two votes on the issue he disagreed with.

20 It is more than merely noteworthy that this Court’s

opinion in Dolan v. City of Tigard, 512 U.S. 374 (1994) agreed with

Judge Kozinski’s analysis by concluding that the property rights

protected by the 5th Amendment should not be treated as the

“poor relations” of other Bill of Rights guarantees. (512 U.S. at

392.)

Corp., 323 U.S. 373 [1945].) Temporary easements are

taken almost daily to facilitate road construction, but no

one has ever suggested that the temporary nature of such

takings somehow renders them non-ompensable.

That the decision below conflicts with First English

requires little more than comparing it with the dissent in

First English. Although the opinion below never cites the

First English dissent, it bears what Judge Kozinski called

such “an uncanny resemblance” to that dissent (App., p.

160; 228 F.3d at 1000) that it caused him to suggest

plagiarism (App., p. 162; 228 F.3d at 1001). Here is what

the Ninth Circuit’s opinion looks like when compared to

the First English dissent: :

First English dissent

“Regulations are three dimensional; they

have depth, width, and length. As for depth,

regulations define the extent to which the owner

may not use the property in question. With

respect to width, regulations define the amount

of property encompassed by the restrictions.

Finally, and for purposes of this case, essentially,

regulations set forth the duration of the restric-

tions. It is obvious that no one of these elements

can be analyzed alone to evaluate the impact of

a regulation, and hence to determine whether a

taking has occurred. . . . [I]n assessing the eco-

nomic effect of a regulation, one cannot conduct

the inquiry without considering the duration of

the restriction. ... Why should there be a consti-

tutional distinction between a permanent

restriction that only reduces the economic value

of the property by a fraction - perhaps one-third

~ and a restriction that merely postpones the

development of a property for a fraction of its

useful life - presumably far less than a third?”

(482 U.S. at 330-332.)

Tahoe-Sierra opinion

“Property interests may have many differ-

ent dimensions. For example, the dimensions of

a property interest may include a physical

dimension (which describes the size and shape

of the property in question), a functional dimen-

sion (which describes the extent to which an

owner may use or dispose of the property in

question), and a temporal dimension (which

describes the duration of the property inter-

est). ... A planning regulation that prevents the

development of a parcel for a temporary period

of time is conceptually no different than a land-

use restriction that permanently denies all use

on a discrete portion of property, or that perma-

nently restricts a type of use across all of the

parcel. Each of these three types of regulation

will have an impact on the parcel’s value... .

There is no plausible basis on which to distin-

guish a similar diminution in value that results

from temporary suspension of a development.”

(App., pp. 21, 26, 27.)

The reason the Ninth Circuit went to such lengths to

immunize TRPA was that, from the start, the opinion was

a goal in search of a justification. The opinion makes no

bones about its desire to protect government planning

agencies from the consequences of their own decisions.

Calling land use planning in general “necessarily a com-

plex, time-consuming undertaking,” and the specific tool

of a moratorium on development “crucial” to the proc-

ess,2! the Ninth Circuit announced that courts should be

21 The landowners do not intend to disparage the task of

planners in today’s regulatory environment. But the complexity

of their task is no justification for the excessive delays that

frequently are multiples of the time it took this country to fight

and win World War II. Moreover, there is simply no justification

for protracted, multi-decade bureaucratic delays that have

“exceedingly reluctant” to rule in ways that would

“threaten [the moratorium’s] survival.” (App., p. 28.)

And so, instead of performing its historic role as the

defender of the Bill of Rights, the court below chose to

protect those impinging on the constitutional guarantee.

It thought that providing constitutional protection here

would provide property owners with a “weapon” to

“penalize local communities for attempting to protect the

public interest.” (App., p. 40.)

That idiosyncratic Ninth Circuit notion goes far

toward explaining the result below. It went beyond turn-

ing the 5th Amendment's protection of property rights

into a “poor relation” of other constitutionally protected

rights (see Dolan, 512 U.S. at 392); here, the court below

declared such rights to be subservient to the wishes of

constitutional violators. Takings litigation is not about

“penalizing” anyone, any more than complying with the

Miranda rule is about “penalizing” the community by

making it easier for criminals to ply their trade with

impunity. Nor when citizens demand enforcement of

their Fourth Amendment rights are they wielding a

unfortunately become a staple of these cases. (E.g., City of

Monterey v. Del Monte Dunes, 526 U.S. 687 [1999] [5 years, 5

planning submissions, 19 site plans - all rejected; 18 years of

litigation); Agins v. City of Tiburon, 447 U.S. 255 [1980] [It took

Mrs. Agins 30 years to finally receive permission to build four

homes on her 5-acre parcel] [Charles Gallardo, “After 29 Years,

Tiburon House Going Up: Home OK’d But Not For Original

Owner,” [Marin] Independent Journal, p. B-6, Oct. 21, 1997].)

As noted by knowledgeable commentators who are

sympathetic to the regulators, such unfortunate behavior

patterns have become common. See Rodney Cobb, Land Use

Law: Marred by Public Agency Abuse, 3 Wash. U.J.L. & Policy 195

[2000]; Orlando Delogu, The Misuse of Land Use Control Powers

Must End: Suggestions for Legislative and Judicial Responses, 32

Me. L. Rev. 29 (1980); Melville Branch, The Sins of City Planners,

42 Pub. Ad. Rev. 1 (1982).

“weapon” with which to “penalize” the community for

its effective law enforcement practices.

Takings litigation is only another instance of “pro-

tect[ing] the public interest” by requiring obedience to

the Constitution. As Justice Brennan put it, “After all, if a

policeman must know the Constitution, then why not a

planner?” (San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621, 661, fn. 26 [1981] [dissenting, but expressing

the substantive views of five Justices].) Neither police

officers nor planners are above the law, and requiring

them to toe the constitutional mark does not “penalize the

community.” Quite the contrary: it is disregard of the Bill

of Rights that penalizes the citizenry.

The Ninth Circuit’s erroneous focus on defending all

possible planning tools, in order to preserve the flex-

ibility of planners is flatly contrary to First English, a

conclusion easily drawn by comparing the opinion below

with First English:

First English

“We realize that even our present holding

will undoubtedly lessen to some extent the free-

dom and flexibility of land-use planners and

governing bodies of municipal corporations

when enacting land-use regulations. But such

consequences necessarily flow from any deci-

sion upholding a claim of constitutional right;

many of the provisions of the Constitution are

designed to limit the flexibility and freedom of

governmental authorities, and the Just Compen-

sation Clause of the Fifth Amendment is one of

them.” (482 U.S. at 321.)

Tahoe-Sierra IV

“In reaching this conclusion, we preserve

the ability of local governments to do what they

have done for many years - to engage in

orderly, reasonable land-use planning through a

considered and deliberative process. To do oth-

erwise would turn the Takings Clause into a

weapon to be used indiscriminately to penalize

local communities for attempting to protect the.

public interest.” (App., p. 40.)22

Aside From Its Conflicts With Decisions of This Court,

the Ninth Circuit’s Decision Conflicts With Decisions

of Other Lower Courts, Creating Confusion That

Requires This Court’s Review to Resolve

As if direct conflict with this Court’s decisions were

not enough, the opinion below conflicts with other lower

court opinions as well. For example, in Tabb Lakes, Ltd. v.

United States, 10 F.3d 796, 800 (Fed. Cir. 1993), the court

acknowledged that, under First English, “a taking, even

for a day, without compensation is prohibited by the

Constitution.” Both that conclusion and the one below

cannot coexist. <¢

Other courts agree with Tabb Lakes. For example, in

Cumberland Farms, Inc. v. Town of Groton, 247 Conn. 196

(1998), the town denied a variance. Notwithstanding that

the property owners retained some use of the service

station on their property, the Connecticut Supreme Court

held that they could pursue compensation for a tempor-

ary taking of their property during the time that it took to

litigate the invalidity of the town’s denial. The court

expressly noted that the town’s argument was “contrary

to the holding of First English... . ” (247 Conn. at 196.)

*2 Ironically, it was precisely that reasoning of the California

Supreme Court in Agins v. City of Tiburon, 24 Cal.3d 266, 276-277

[1979], aff'd on other grounds 447 U.S. 255 [1980], that this Court

branded as an incorrect interpretation of the Fifth Amendment

in First English, 482 U.S. at 317.

Moreover, to characterize a 20-year process of rolling

prohibitions of all uses of the Petitioners’ lands as “orderly” and

“reasonable” does violence to the English language.

In Eberle v. Dane County Bd. of Adjustment, 227 Wis.2d

609 (1999), the county denied an access permit. The Wis-

consin Supreme Court held that the owners could pursue

compensation for a temporary taking, notwithstanding

that they regained full use of their property when that

court eventually overturned the permit denial. The court

expressly concluded that the county’s argument against

compensation was contrary to both First English and

Lucas. (227 Wis.2d at 633.)

Likewise, in Whitehead Oil Co. v. City of Lincoln, 515

N.W.2d 401 (Neb. 1994), the Nebraska Supreme Court

rejected the city’s argument that it should not be liable

for a temporary taking because all use of the property

had not been taken, by referring to “the line of cases

which recognizes relief is possible from regulatory tak-

ings which do not deprive the owner of all economic use

of the property.” (515 N.W.2d at 407.) Finally, on remand

from this Court’s decision in Lucas, the South Carolina

Supreme Court held that a temporary taking had

occurred as a matter of law. (Lucas v. South Carolina

Coastal Council, 424 S.E.2d 484 [1992].) This, in spite of the

fact that Mr. Lucas could still “picnic, swim, camp in a

tent, or live on the property in a movable trailer.” (Lucas,

505 U.S. at 1044 [Blackmun, J., dissenting].)>

To the extent that some courts have been convinced

to reach a different conclusion,”* that only emphasizes the

23 See also Sintra, Inc. v. City of Seattle, 829 P.2d 765, 774

(Wash. 1992) (“a temporary taking is compensable under the

Fifth Amendment, and Sintra need not prove that the property

remained unusable after the [regulation] was invalidated.

[Citing First English.]”); 614 Company v. Minneapolis Community

Dev. Agency, 547 N.W.2d 400, 406-407 (Minn. App. 1996)

(reduced occupancy of building sufficient to state claim for

temporary taking where complaint alleged that remaining uses

were not economically viable).

24 E.g., Woodbury Place Partners v. City of Woodbury, 492

N.W.2d 258 (Minn. App. 1992). And, of course, California -

conflict of decision and deepens the need for this Court’s

intervention. There is a resolute need for clarity in this

field which, to date, has been sorely lacking. As a matter

of practical reality, all who deal with it are having diffi-

culty. As a recent appraisal commentary summed it up,

“there is almost universal consensus in the prodigious

takings literature that takings theory is a ‘muddle,’ ‘chao-

tic,” ‘unsatisfactory,’ ‘unpredictable,’ lacking in ‘doctrine,’

and a ‘mess.’ ” (Walter, Appraisal Methods and Regulatory

Takings: New Directions For Appraisers, Judges, and Econo-

mists, 63 Appraisal J. 331 [1995].) There is no reason to

add to that litany, and every reason to rectify it.

THE DECISION BELOW UNCONSTITUTIONALLY

CONSCRIPTS PETITIONERS INTO PROVIDING PUB-

LIC OPEN SPACE TO BENEFIT THE PUBLIC WITH-

OUT COMPENSATION.

In its classic regulatory taking decision, this Court

held that “if regulation goes too far it will be recognized

as a taking.” (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,

415 [1922] (Holmes, J.].) The question of how “far” is “too

far” remains unclear. This case provides the opportunity

to clarify the standard significantly.

One guidepost is the precept that the cost of projects

benefiting the public should be widely shared:

“the Fifth Amendment's guarantee that private

property shall not be taken for public use with-

out just compensation was designed to bar Gov-

ernment from forcing some people alone to bear

public burdens which, in all fairness and justice,

always at the outer edge — believes that litigation to overturn an

unconstitutional regulation is merely part of the “normal

planning process.” (Landgate v. California Coastal Commn., 17

Cal.4th 1006 [1998].) Maybe there. The Wisconsin Supreme

Court expressly refused to follow Landgate because it conflicts

with First English. (Eberle, 227 Wis.2d at 632, fn. 25.)

should be borne by the public as a whole.”

(Armstrong v. United States, 364 U.S. 40, 49

[1960].)

TRPA has been absolutely clear throughout this proc-

ess that it forbade the development of the residential

homesites bought by these Petitioners in order to gain

public benefits. And no one questions that doing so is a

proper public goal. Suits such as this one assume that the

regulation is for a permissible purpose.” This litigation

doesn’t seek to frustrate the regulation, but only to pro-

vide a remedy for its confiscatory impact. This has been

the law at least since Hurley v. Kincaid, 285 U.S. 95, 103

(1932).26 The Fifth Amendment:

“is designed not to limit the governmental inter-

ference with property rights per se, but rather to

secure compensation in the event of otherwise

proper interference amounting to a taking.”

(First English, 482 U.S. at 315; emphasis, the

Court’s.)?7

25 For example, the Federal Circuit Court of Appeals

(which reviews virtually all takings judgments against the

Federal Government) has consistently affirmed judgments

making the United States liable for takings that precluded

development in order to further proper environmental goals.

E.g., Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed.

Cir. 1990) (surface coal mining); Florida Rock Indus., Inc. v. United

States, 18 F.3d 1560 (Fed. Cir. 1994) (limestone mining); Creppel v.

United States, 41 F.3d 627 (Fed. Cir. 1994) (dredging and filling

wetlands).

26 This Court has consistently so held, in widely varying

contexts. E.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016

(1984) (trade secrets); Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 425 (1982) (cable TV access); Kaiser Aetna v.

United States, 444 U.S. 164, 174 (1979) (access to navigable

water); United States v. Security Indus. Bank, 459 U.S. 70, 75 (1982)

(retroactive bankruptcy legislation).

27 As Justice Breyer expressed it recently, “at the heart of

the [Just Compensation] Clause lies a concern, not with

TRPA’s avowed pursuit of a “free lunch,” its goal of

creating an open space preserve around Lake Tahoe — but

at someone else’s expense - is precisely the kind of thing

the Armstrong principle was designed to deal with. Deny-

ing all private use of the subject properties for the public

use of enhancing the quality and recreational utility of

Lake Tahoe is, on principle, no different than the govern-

ment’s desire to acquire safety zones around airports or

approaches to highway bridges. (See Griggs v. Allegheny

County, 369 U.S. 84, 89-90 [1962].) But either way, the

acquisition of such control over all use of land adjoining a

public facility - whether a lake or an airport — is a de facto

taking that requires compensation.

The long and the short of it is that TRPA has taken all

reasonable, economically productive use of Petitioners’

home sites for a public “clear zone” around Lake Tahoe.

Just compensation is constitutionally called for. It is irrel-

evant that TRPA’s method was to strip away the use,

while leaving title in the Petitioners. As this Court noted

generations ago, “[c]onfiscation may result from a taking

of the use of property without compensation quite as well

as from the taking of the title.” (Chicago, R.I.&P.R. Co. v.

United States, 284 U.S. 80, 96 [1931}.) In the words of the

New York Court of Appeals, “[t]he only substantial dif-

ference . . . between restriction [of all use] and actual

taking, is that the restriction leaves the owner subject to

the burden of payment of taxation, while outright confis-

cation would relieve him of that burden.” (Arverne Bay

Construction Co. v. Thatcher, 278 N.Y.2d 222, 232 [1938].)

preventing arbitrary or unfair government action, but with

providing compensation for legitimate government action that

takes Private property’ to serve the ‘public good.’ ” (Eastern

Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 2161 [1998]

[emphasis in original] [dissenting opinion].) See also Florida

— Inc. v. United States, 45 Fed. Cl. 21, 24-25 (Fed. Cl.

Ill

A ROLLING SERIES OF MORATORIA/USE PROHIBI-

TIONS IS FUNCTIONALLY NO DIFFERENT THAN A

SINGLE, BLANKET PROHIBITION. THE GOVERN-

MENT CANNOT EVADE ITS CONSTITUTIONAL

OBLIGATION TO PAY COMPENSATION BY SLICING

ITS REGULATION INTO BITE-SIZE PIECES

TRPA embarked on a program to deny the land-

owners all use of their homesites in 1981 and never

wavered from that course. Throughout this litigation,

they have charged that the totality of TRPA’s actions

extinguished their ability to build homes on their lots and

that compensation was constitutionally mandated. But

the courts below treated each of TRPA’s acts in isolation

from each of the others, as if each had only its own

separate existence. In that way, the Ninth Circuit was able

to isolate and minimize the impact of each component,

and thereby attenuate the overall regulatory scheme.

Nothing in this Court’s takings jurisprudence

required the Ninth Circuit to use such sliced baloney

tactics in examining TRPA’s actions. Quite the contrary.

When faced with circumstances involving a continuing

governmental course of conduct where examination of

the entire pattern of conduct was necessary to make a

proper constitutional analysis, this Court has opted to

examine the conduct as a whole. “A property owner is of

course not required to resort to piecemeal litigation or

otherwise unfair procedures... .” (MacDonald, Sommer &

Frates v. Yolo County, 477 U.S. 340, 350, fn. 7 [1986].)

In United States v. Dickinson, 331 U.S. 745 (1947), the

government asked this Court to find that a taking

occurred at the earliest possible event impairing the

property owners’ rights (so that the statute of limitations

would have run by the time they filed suit). This Court

refused the gambit, opting for a practical reading of the

just compensation guarantee:

“The Constitution is intended to preserve practi-

cal and substantial rights, not to maintain theo-

ries. . . . The Fifth Amendment expresses a

principle of fairness and not a technical rule of

procedure enshrining old or new niceties

regarding ‘causes of action’ - when they are

born, whether they proliferate, and when they

die. . . . The source of the entire claim - the

overflow due to rises in the level of the river - is

not a single event; it is continuous. And as there

is nothing in reason, so there is nothing in legal

doctrine, to preclude the law from meeting such

a process by postponing suit until the situation

becomes stabilized. .. . When dealing with a

problem which arises under such diverse cir-

cumstances procedural rigidities should be

avoided.” (Dickinson, 331 U.S. at 748-749; cita-

tions and internal quotation marks omitted.)?8

28 That Dickinson was a physical taking case and the case at

bench is a regulatory taking case is irrelevant. This Court has

made no such distinction. Rather, in First English, the Court

showed how all of the law of eminent domain works together -

in all its facets, whether direct condemnation or physical or

regulatory inverse condemnstion, whether permanent or

temporary - so that elemental doctrinal features apply across

the board. Thus, in its analysis of a temporary regulatory taking,

this Court relied on permanent physical inverse condemnation

cases (482 U.S. at 316-317), temporary direct condemnation

cases (482 U.S. at 318), and cases dealing with the fundamental

powers of different branches of government to control the

duties entrusted to them by the Constitution (482 U.S. at

319-321). Moreover, constitutional scholars with views as

disparate as Professors Richard Epstein and Laurence Tribe

agree that the key to finding a taking is the impact of the

governmental action on the landowner, not the means by which

the injury is inflicted. Compare Richard Epstein, Takings:

Private Property and the Power of Eminent Domain 94 (1986)

with Laurence Tribe, American Constitutional Law § 9-3 at 593

(2d ed. 1988).

The stabilization concept employed by this Court in

Dickinson is akin to the concept of a continuing wrong

that has been applied in other regulatory taking cases.

(E.g., Gordon v. City of Warren, 579 F.2d 386, 391 [6th Cir.

1978]; Lockary v. Kayfetz, 587 F. Supp. 631, 635-636 [N.D.

Cal. 1984], aff'd 917 F.2d 1150 [9th Cir. 1990]; Barbaccia v.

County of Santa Clara, 451 F. Supp. 260, 266 [N.D. Cal.

1978].)29 The theory of those cases is that, as long as the

regulating entity continues to act in furtherance of its

policy and goal, then the entity’s actions are continuing

and the statute of limitations will not run until the last act

has become history.

Here, of course, there is no question that TRPA con-

tinued to act. It enacted its first use prohibition in 1981,

another in 1983, another in 1984, and another in 1987.

Each of those acts was but a part of the larger scheme. It

should have been evaluated that way below. Otherwise,

regulators could routinely evade this Court’s decisions in

First English and Lucas by the simple expedient of enact-

ing serial regulations. That cannot have been this Court's

intent in MacDonald, Sommer & Frates, when it disap-

proved of forcing property owners into “piecemeal litiga-

tion.” By so ruling, the Ninth Circuit not only sealed the

constitutional injury done by TRPA, it created conflict

with each of these other opinions.

Moreover, the decision below erred prejudicially

when it decided to immunize TRPA from the destructive

effects of its 1984 Plan because the plan was so defective

in other respects that a District Court enjoined the issuance

of permits. Two things are clear, and either should have

been enough to impose liability on TRPA for the three

years the 1984 Plan’s impacts precluded all development.

29 All three cases relied on Dickinson as support for their

holdings.

First, TRPA would not have issued permits to these land-

owners to build their homes under the 1984 Plan regard-

less of the presence or absence of an injunction. Under

the 1984 Plan, these home sites could not be built on.

Thus, regardless of the District Court’s action, TRPA’s

own action precluded productive use of these parcels.

Second, TRPA’s 1984 Plan was the driving force that set it

all in motion. But for TRPA’s Plan, there would have been

no injunction. As the instigator in a series of actions,

TRPA’s 1984 Plan was a substantial factor causing the

landowners’ injuries.

As this Court recently concluded, section 1983

actions like this one are tort actions, more specifically,

constitutional tort actions. (Del Monte Dunes, 526 U.S. at

709.) Under settled tort precepts of causation, the 1984

Plan was a cause of the injunction that prevented TRPA

from issuing permits. The landowners, of course, believe

the Court need not go that far because the 1984 Plan itself

permitted no development on their land. By itself, that is

enough for liability.

The same is true of the 1987 Plan. It is merely a

continuation of the rest. This Court has already acknowl-

edged that no use of SEZ land was permitted under the

1987 Plan. (Suitum, 520 U.S. at 739.) The same, as the

courts below acknowledged, is true for the rest of the

homesites in this case.

When a continuous course of conduct causes consti-

tutional harm, the instigator of that conduct is constitu-

tionally liable for the harm caused. All of the harm.

CONCLUSION

The Petitioners are ordinary people who, acting in a

lawful and constructive manner, have invested their sub-

stance and, in some cases, their lives’ savings in pursuit

of the “American dream” of homeownership. Now, how-

ever, they have been told that they cannot build their

homes nor use their land for any economically rational

urpose, even as they must pay their property taxes and

- the burdens, autien, aa liabilities of land owner-

ship. Their only “right,” they are now told, is to suffer

foreclosure of their properties, or to sell them at bargain-

basement prices to government agencies. The Ninth Cir-

cuit has thus held - in plain defiance of this Court s

directly on-point holding in First English - that the consti-

tutional promise of just compensation is a cruel hoax. To

put it in scriptural terms, the Petitioners asked for bread,

but the Ninth Circuit gave them stone.

The Petitioners are not some sort of enemy to be

mocked with judicial displays of “thinly disguised con-

tempt.” They are Americans protected by the Bill of

Rights. They have been abused by TRPA and ill-used by

the Ninth Circuit. If property rights are not to be a

constitutional “poor relation,” the Petitioners deserve

help from this court, and so does the confusing and

contradictory law said to govern this unfortunate field.

Perhaps more important, so does the integrity and prece-

dential worth of this Court’s First English holding.

The Petitioners pray that Certiorari be granted.

Respectfully submitted,

Counsel for Petitioners

*Counsel of Record

App. 1

TAHOE-SIERRA PRESERVATION COUNCIL, INC.;

Richard A. Allison; Alpine Investment Company, Ltd.;

AMCO, Inc.; Jeffrey B. Andersen; Beth C. Andersen; ‘

Peter J. Andersen; Janet I. Andersen; Donald F. Archi- H

bald; Jean L. Atherton; David E. Baker; Maxine A.

Baker; John H. Baker; Pierino C. Barengo, et al., Plain-

tiff-Appellee-Cross-Appellant,

Vv.

TAHOE REGIONAL PLANNING AGENCY, a separate

legal entity created pursuant to an interstate compact

between the States of California and Nevada; the voting

members of the governing body of the Tahoe Regional |

Planning Agency including Tony Clark, Chester A.

Gibbs, Alexander Haagen, III, Stan Hansen, Thomas

Hsieh, James King, Robert Pruett, James S. Reed, Larry

Sevinson, Thomas Stewart, William D. Swackhamer,

Peggy Twedt, Ronald D. Westergard and Norman C.

Woods; State of California; State of Nevada, Defendant-

Appellant-Cross-Appellee.

Nos. 99-15641, 99-15771.

United States Court of Appeals,

Ninth Circuit

Argued and Submitted March 16, 2000

Filed June 15, 2000

E. Clement Shute, Jr. & Ellison Folk, Shute, Mihaly &

Weinberger, San Francisco, California, for the defendant-

appellant-cross-appellee.

Bill Lockyer, Attorney General of State of California,

Richard M. Frank, Chief Assistant Attorney General, J.

Matthew Rodriquez, Senior Assistant Attorney General,

Daniel L.Siegel, Supervising Deputy Attorney General,

App. 2

Mary J. Scoonover, Deputy Attorney General, Sacre-

mento, CA, for the defendant-appellant-cross-appellee

State of California.

Frankie Sue Del Papa, Attorney General of State of

Nevada, William J. Frey, Deputy Attorney General, Car-

son City, NV, for the defendant-appellant-cross-appellee

State of Nevada.

Lawrence L. Hoffman, Hoffman Law Offices, Tahoe

City, California, for the plaintiff-appellee-cross-appellant.

Rochelle Nason, League to Save Lake Tahoe, South

Lake Tahoe, California, John D. Echeverria, Environmen-

tal Policy Project, Georgetown University Law Center,

and Thomas E. Roberts, Wake Forest University School of

Law, for amici curiae American Planning Association and

League to Save Lake Tahoe.

Karl Manheim, Loyola Law School, Los Angeles, Cal-

ifornia, and Stephen Shane Stark & Alan L. Seltzer,

County of Santa Barbara, California, for amici curiae

California Cities and California State Association of

Counties.

Timothy J. Dowling, Community Rights Counsel,

Washington, DC, for amici curiae International Municipal

Lawyers Association.

Daniel P. Selmi, Los Angeles, California, for amici

curiae Scientists.

Hardy Myers, Attorney General of Oregon, Michael

D. Reynolds, Solicitor General of Oregon, and David F.

Coursen, Assistant Attorney General of Oregon, Salem,

Oregon, for amici curiae States of Oregon, Washington,

Arizona, and Montana.

App. 3

Lois J. Schiffer, Assistant Attorney General, and Wil-

liam Lazarus, David C. Shilton, and Peter H.

Oppenheimer, United States Department of Justice, Wash-

ington, DC, for amici curiae United States.

Appeals from the United States District Court for the

District of Nevada. Edward C. Reed, Jr., District Judge,

Presiding; D.C. No. CV-84-00257-ECR.

Before: POLITZ*, REINHARDT, and HAWKINS, Cir-

cuit Judges.

REINHARDT, Circuit Judge:

This case involves approximately 450 plaintiffs who

own property in the Lake Tahoe Basin. The lead plaintiff,

Tahoe-Sierra Preservation Council, Inc. (TSPC), is an

association of Tahoe-area property owners. Each individ-

ual property owner has alleged, inter alia, that each of

several land-use regulations enacted in the 1980's by the

Tahoe Regional Planning Agency (TRPA) constituted a

“taking” of his property under the Fifth and Fourteenth

Amendments. The principal question on this appeal is

whether a temporary planning moratorium, enacted by

TRPA to halt development while a new regional land-use

plan was being devised, effected a taking of each plain-

tiff’s property under the standard set forth in Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct.

2886, 120 L.Ed.2d 798 (1992). In addition, we must deter-

mine whether any taking that may have occurred follow-

ing TRPA’s adoption of a regional land-use plan in 1984

* The Honorable Henry A. Politz, Senior United States Circuit

Judge for the Fifth Circuit Court of Appeals, sitting by

designation.

App. 4

was attributable to the promulgation of that plan, in light

of the fact that the plan was enjoined immediately after it

was enacted and was never implemented. Finally, we

must decide whether the plaintiffs’ claims regarding the

successor regional land-use plan enacted by TRPA in 1987

~ which did become effective - are time-barred.

FACTUAL BACKGROUND

Lake Tahoe is a large alpine lake located in the north-

ern Sierra Nevada mountains. The lake is unique, both

aesthetically and ecologically, because of its size, depth,

and the astounding clarity of its water. Indeed, it is one of

the clearest large lakes in the world. The unusual clarity

of Lake Tahoe results from the fact that it historically wes

“oligotrophic” — that is, very low in nutrients and lacking

a steep temperature gradient that would prevent deep

circulation and mixing. Since mid-century, however, the

lake has been undergoing “eutrophication,” a process by

which the nutrient loading in the lake increases cromat-

cally, due to nitrogen and phosphorus (contained in soil)

being washed into the lake. The excessive enrichment of

the lake by these nutrients encourages the growth of

algae. As algal growth in the lake increases, the lake loses

its clarity and color, becoming green and opaque. In

addition to destroying the water’s visual perfection, oe

algae also depletes its oxygen content, thereby jeoperdis-

ing the survival of fish and other lake-dwelling animal

life. In short, the eutrophication of the lake is causing

serious, and effectively permanent, environmental dam-

age.

App. 5

The dramatic increase in Lake Tahoe’s nutrient levels

has been caused by the rapid development of environ-

mentally sensitive land in the Lake Tahoe Basin. The land

in the basin drains into the lake, and artificial distur-

bances of the land - the destruction of vegetation, the

creation of impervious objects such as roads and houses,

etc. — greatly increase the flow of nutrients into the lake.

Of course, the degree to which the development of a

particular parcel of land in the basin increases the nutri-

ent flow into the lake depends on the particular charac-

teristics of that property. In general, the development of

steeper land leads to more environmental damage,

because steeper land is susceptible to more rapid soil

erosion. Along with steepness, other land characteristics

also affect the amount of damage caused to the lake by

development. For example, certain areas near streams

and other wetlands, known as Stream Environment Zones

(SEZs), act as filters for much of the nutrient loading that

runoff carries. Disturbance of SEZ lands can lead to the

rapid release of these stored nutrients into the lake. In

addition, disturbance of SEZ lands may prevent them

from performing their natural filtering function, thereby

permitting more of the nutrients contained in runoff from

higher elevations to reach the lake. Accordingly, SEZ

1 The destruction of vegetation increases the transport of

nutrients to the lake in part because vegetation prevents soil

erosion. Similarly, the construction of impervious surfaces

increases the flow of nutrients to the lake in part because such

surfaces prevent rain and snowmelt from seeping into the

ground. This increases the surface flow of water, which hastens

erosion.

App. 6

lands are considered especially sensitive to the impact of

development.

In an effort to halt the increasing rate of environmen-

tal damage to Lake Tahoe, the bi-state Tahoe Regional

Planning Compact was approved in 1969 by the United

States Congress after being passed by the legislatures of

both Nevada and California. The Compact created the

Tahoe Regional Planning Agency and set goals for the

preservation of the lake and the surrounding basin. Pur-

suant to the Compact, TRPA adopted land-use Ordinance

No. 4, which, among other things, classified the land in

the basin according to its susceptibility to environmental

damage. Land in the Lake Tahoe Basin was divided into

seven “land capability districts,” numbered 1 through 7,

with 1 being the most environmentally sensitive and 7 the

least. Land capability districts 1 through 3 — consisting of

the steepest land in the basin - were denominated “high

hazard” or “sensitive” lands. SEZ lands were classified as

a special subcategory of high hazard lands and were

labeled “1b” lands. Land capability districts 4 through 7

were referred to as “low hazard” or “non-sensitive”

lands.

For each land classification, Ordinance No. 4 adopted

recommendations as to what degree of artificial distur-

bance the land could safely sustain. There were numerous

exceptions to the recommendations, however, and these

exceptions caused significant dissatisfaction with TRPA’s

regulatory scheme. This dissatisfaction, combined with

evidence that the 1969 Compact was not strong enough to

remedy the problems causing the decline in the basin

environment, led to the amendment of the Tahoe

App. 7

Regional Planning Compact in 1980.2 In addition to

restructuring TRPA and its voting procedures, the 1980

Compact directed TRPA (1) to adopt “environmental

threshold carrying capacities” within eighteen months of

the date on which the Compact became effective;3 (2) to

adopt a new regional plan within twelve months of the

adoption of the carrying capacities; and (3) to review all

projects and establish temporary restrictions on develop-

ment in the basin pending the enactment of a new

regional plan.

To comply with the Compact’s requirement that it

temporarily restrict development pending the enactment

of a new regional plan, TRPA enacted Ordinance 81-5,

which became effective on August 24, 1981. Among other

things, the ordinance temporarily prohibited most resi-

dential and all commercial construction on both Class 1-3

and SEZ lands. The ordinance did contain some excep-

tions to the development moratorium, however, which

permitted TRPA to approve construction of some single

family homes on Class 1, 2, and 3 lots on the Nevada side

of the basin. The ordinance stated that the provisions

setting forth the moratorium “shall expire upon the adop-

tion by the agency of Amendments to the Regional Plan.”

* The amended Compact took effect on December 19, 1980.

* The 1980 Compact defines “environmental threshold

carrying capacity” as “an environmental standard necessary to

maintain a significant scenic, recreational, educational,

scientific or natural value of the region or to maintain public

health and safety in the region. Such standards shall include but

not be limited to standards for air quality, water quality, soil

quality, soil conservation, vegetation preservation and

noise.” Art. II(i), 94 Stat. 3235.

App. 8

On August 26, 1982, TRPA adopted environmental

threshold carrying capacities. The agency then proceeded

with the development of a new regional plan. Due to the

tremendous complexity of the task, however, it soon

became clear that TRPA would be unable to adopt a new

regional plan within twelve months of the adoption of the

carrying capacities, as required by the Compact. Con-

cerned that it lacked the authority to issue any building

permits after this date without a new regional plan in

place, TRPA adopted Resolution 83-21. The Resolution

suspended all permitting activities “pending adoption of

the new regional plan.” This suspension temporarily pro-

hibited the development of all of the covered land.

Although the Resolution was drafted to expire after a

ninety-day period that ended on November 26, 1983, it

was extended, in accordance with its design, until the

new regional plan was adopted.

On April 26, 1984, thirty-two months after it had

initially suspended development, TRPA adopted a new

land-use plan, the 1984 Regional Plan. See Ordinance

84-1. On the day of its adoption, the State of California

sued TRPA to block the implementation of the plan on the

ground that it failed to establish land-use controls suffi-

ciently stringent to protect the Lake Tahoe Basin. The next

day, the League to Save Lake Tahoe followed suit and

sought an injunction against the plan on the same

grounds. The United States District Court for the Eastern

District of California, Judge Edward J. Garcia presiding,

immediately issued a temporary restraining order prohib-

iting TRPA from taking any action to approve building

projects, and ordered TRPA to show cause why a prelimi-

nary injunction should not issue. On June 15, 1984, Judge

App. 9

Garcia granted a preliminary injunction. We upheld the

preliminary injunction on appeal, see California ex rel. Van

de Kamp v. Tahoe Reg’! Planning Agency, 766 F.2d 1308 (9th

Cir.1985), and the injunction remained in force until a

completely revised land-use plan - the 1987 Regional

Plan - was adopted.

PROCEDURAL HISTORY

After TRPA adopted the 1984 Plan, property owners

in Nevada and California filed separate lawsuits. Plain-

tiffs owning property on the Nevada side of the Tahoe

Basin filed an action in the United States District Court

for the District of Nevada, and plaintiffs owning property

on the California side of the basin filed one in the United

States District Court for the Eastern District of California.

All of the plaintiffs sought declaratory and injunctive

relief, as well as damages, for various violations of the

Takings Clause, the Due Process Clause, the Equal Protec-

tion Clause, and the Contracts Clause. See Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Reg’l Planning Agency,

911 F.2d 1331, 1333-34 (9th Cir.1990) (“TSPC I”) (Nevada-

side suit) (describing the claims in detail); Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Reg’l Planning Agency,

938 F.2d 153, 154 n. 1 (9th Cir.1991) (“TSPC II”) (Califor-

nia-side suit) (same).

For purposes of litigation, the plaintiffs were divided

into two groups: the first was composed of those who

own land in areas classified as SEZs, and the second of

those who own land in Class 1, 2, and 3 areas. In addition

to the land-classification division, the plaintiffs’ claims

were divided into four time periods: Period I covers

App. 10

August 24, 1981, to August 26, 1983, the time during

which Ordinance 81-5 was in effect; Period II covers

August 27, 1983, to April 25, 1984, the time during which

Resolution 83-21 was in operation; Period III covers April

26, 1984, to July 1, 1987, the period that ran from the

enactment of the 1984 Plan to the enactment of the 1987

Plan; and Period IV covers July 2, 1987, to the present, the

time during which the 1987 Plan has been in effect.

The procedural history of the California and Nevada

actions, which involves three previous Ninth Circuit

opinions, see TSPC I, 911 F.2d at 1331; TSPC II, 938 F.2d at

153; Tahoe Sierra Preservation Council, Inc. v. Tahoe Reg’l

Planning Agency, 34 F.3d 753 (9th Cir.1994) (“TSPC III”),

and several district court opinions, need not be repeated

in full. We review here only the three pieces of informa-

tion regarding the procedural history that are necessary

for our resolution of the present appeal.

First, it is important to point out that, at this stage in

the litigation, the only claims of the plaintiffs that remain

at issue are some of the § 1983 takings claims. The

remainder of the claims were dismissed at one point or

another. The following table shows the § 1983 takings

claims that are before us (the claims are represented by

X's):

* Obviously, the plaintiffs’ initial complaints, filed in 1984,

did not include claims regarding the 1987 Regional Plan.

Following remand from TSPC I and TSPC II, however, the

plaintiffs in both actions were permitted to amend their

complaints. In their amended complaints, the plaintiffs added

claims regarding the 1987 Regional Plan.

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App. 12

The TSPC III court’s treatment of the plaintiffs’

Period IV claims is the second relevant element of pro-

cedural history. Following remand from TSPC I and TSPC

II, the Nevada and California cases were consolidated for

further proceedings in the United States District Court for

the District of Nevada, Judge Edward C. Reed presiding.

The plaintiffs were permitted to amend their complaints

and, in doing so, they added the Period IV claims - the

claims regarding the 1987 Regional Plan which had been

adopted while the litigation was pending. Shortly there-

after, the district court dismissed all of plaintiffs’ claims

for Periods I, Il, and IV, including the § 1983 claims, on

the ground that they were all time-barred by a sixty-day

statute of limitation provision contained in the 1980 Com-

pact. See Tahoe Sierra Preservation Council, Inc. v. Tahoe

Reg’! Planning Agency, 808 F.Supp. 1474 (D.Nev.1992)

(Nevada case); Tahoe Sierra Preservation Council, Inc. v.

Tahoe Reg'l Planning Agency, 808 F.Supp. 1484

(D.Nev.1992) (California case). On appeal, this court

reversed in part. See TSPC III, 34 F.3d 753 (9th Cir.1994).

The TSPC III court upheld the dismissal of some of the

plaintiffs’ claims on statute of limitations grounds. See 34

F.3d at 755. The court held, however, that the sixty-day

statute of limitations period contained in the 1980 Com-

pact did not apply to the plaintiffs’ § 1983 claims. See id.

at 756. Finding that the plaintiffs had “failf[ed] to plead

affirmatively any other statute of limitations,” the court

held that the defendants had forfeited all other statute of

limitations defenses. Id.

The events of the most recent remand constitute the

final element of the procedural history relevant to the

present appeal. Following remand from TSPC III in 1995,

App. 13

the parties conducted a year-long settlement effort. Those

efforts collapsed in early 1997. The district court then

resolved the plaintiffs’ remaining claims in two published

orders. The first order, issued in early 1998, resolved the

plaintiffs’ Period IV claims (the claims regarding the 1987

Plan). In it, the district court held that, despite this

court’s holding in TSPC III, the plaintiffs’ claims for

Period IV were in fact time-barred by the relevant statute

of limitations for § 1983 actions in Nevada and California.

See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l

Planning Agency, 992 F.Supp. 1218 (D.Nev.1998). The sec-

ond order, published in early 1999 following an eleven-

day bench trial, resolved on the merits the issue of lia-

bility for the remaining claims.® See Tahoe-Sierra Preserva-

tion Council, Inc. v. Tahoe Reg’l Planning Agency, 34

F.Supp.2d 1226 (D.Nev.1999). In the order, the district

court held, among other things, that: (1) Ordinance 81-5

and Resolution 83-21 were facially invalid because they

constituted a categorical taking of the plaintiffs’ property,

and that TRPA is therefore liable under § 1983 for violat-

ing the plaintiffs’ Fifth Amendment rights during Period

I and Period II; and (2) TRPA is not liable under § 1983

for any taking that may have occurred during Period III,

8 In accord with the above chart of claims, the district court

stated that only the following claims remained to be addressed

at the trial: the Period I § 1983 claims of all the California

plaintiffs and the Nevada SEZ plaintiffs; the Period II § 1983

claims of all the plaintiffs; and the Period III claims of the

California plaintiffs.

App. 14

because it was the court injunction prohibiting the imple-

mentation of the 1984 Plan that barred further develop-

ment during that period and TRPA’s conduct was not the

actionable cause of the injunction.

ISSUES ON APPEAL

The defendants appeal the district court's holding

that they are liable under § 1983 for a categorical taking

during Period I and Period II. The plaintiffs cross-appeal

the district court’s holding that the defendants are not

liable under § 1983 for any taking that occurred during

Period III, and the court's holding that the plaintiffs’

§ 1983 claims for Period IV are time-barred.

DISCUSSION

I. TIME PERIODS I & II

The defendants contend that the district court erred

in holding that Ordinance 81-5, which was in effect dur-

ing Period I, and Resolution 83-21, which was in effect

during Period II, constituted categorical takings of each

plaintiff's property under the standard set forth in Lucas

v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct.

2886, 120 L.Ed.2d 798 (1992). As discussed above, these

laws were enacted to suspend development in the Lake

Tahoe Basin pending the adoption of a new regional land-

use plan.

_ * The District Court certified all of these issues for

interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and we

granteu the petition for permission to appeal.

App. 15

The Takings Clause of the Fifth Amendment pro-

hibits the government from taking “private property

. . . for public use, without just compensation.” U.S.

Const. amend. V. Courts have had little success in devis-

ing any set formula for determining when government

regulation of private property amounts to a regulatory

taking.!° Thus, the Supreme Court has repeatedly recog-

nized that “whether a particular restriction [amounts to a

taking] depends largely ‘upon the particular circum-

stances [of each] case’ ” — that is, on “essentially ad hoc,

factual inquiries.” Penn Central Transportation Co. v. City of

New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631

(1978); see also Lucas, 505 U.S. at 1015, 112 S.Ct. 2886. In

this regard, the Supreme Court and lower courts have

indicated that most regulator) takings cases should be

resolved by balancing the public and private interests at

stake, with three primary factors weighing in the balance:

(1) the economic impact of the regulation on the claimant,

(2) the extent to which the regulation has interfered with

distinct investment-backed expectations, and (3) the char-

acter of the governmental action. See, e.g., Penn Central,

438 U.S. at 124, 98 S.Ct. 2646; Dodd v. Hood River County,

10 For much of the nation’s history, it was generally thought

that the Takings Clause reached only the direct appropriation,

or the functional equivalent of a “practical ouster of [the

owner's] possession.” Transportation Co. v. Chicago, 99 U.S. 635,

642, 25 L.Ed. 336 (1879). In Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), however, the Supreme

Court recognized that government regulation of property could

“go[ ] too far” and amount to a taking of that property. See id. at

415, 43 S.Ct. 158.

App. 16

136 F.3d 1219, 1228 (9th Cir.1998); District Intown Proper-

ties Ltd. v. District of Columbia, 198 F.3d 874, 879

(D.C.Cir.1999),11

The Court’s evaluation in various cases of the three

factors identified in Penn Central illustrates that the con-

tent of these factors is not amenable to pat description.

For example, it is clear that a regulation’s “economic

effect upon the claimant” may be measured in several

different ways. See Hodel v. Irving, 481 U.S. 704, 714, 107

S.Ct. 2076, 95 L.Ed.2d 668 (1987) (looking to the market

value of the property); Keystone Bituminous Coal Ass’n v.

DeBenedictis, 480 U.S. 470, 493-96, 107 S.Ct. 1232, 94

L.Ed.2d 472 (1987) (looking to whether the regulation

makes the property owner’s business operation “com-

mercially impracticable”); Andrus v. Allard, 444 U.S. 51,

66, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (looking to the

possibility of other economic uses besides sale, which

was prohibited by the challenged regulation). Similarly,

the “character of the governmental action” depends on

several things, including whether the action is properly

‘1 In the special context-of exactions -— land-use isi

conditioning approval of development on the Gamaunon as

property to public use —- the Supreme Court has developed a

different test to determine whether a regulatory taking has

occurred. See Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309

129 L.Ed.2d 304 (1994); Nollan v. California Coastal Comm'n, 483

U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). The Court has

held that the Nollan/Dolan test is inapposite to regulatory

takings cases outside the context of excessive exactions. See City

of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687

703, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (overruling in part

Del Monte Dunes at Monterey, Ltd. v. City of Mont

(9th Cir.1996)). es ty of Monterey, 95 F.3d 1422

App. 17

characterized as a physical occupation of the property, see

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, 434-35, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), and

whether the regulation advances a legitimate public pur-

pose, see Keystone Bituminous Coal Ass'n, 480 U.S. at 485-6,

107 S.Ct. 1232; Agins v. Tiburon, 447 U.S. 255, 260, 100

S.Ct. 2138, 65 L.Ed.2d 106 (1980).

The Supreme Court has identified two specific cir-

cumstances in which it will find a government regulation

to constitute a “categorical” taking without performing

an ad hoc balancing under Penn Central. The first situa-

tion involves regulations that compel a property owner to

suffer a permanent physical “invasion” or “occupation”

of his property. See, e.g., Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 73 L.Ed.2d

868 (1982). In that circumstance, the “character of the

governmental action” - ordinarily one of the factors bal-

anced under Penn Central — itself becomes sufficient to

effect a taking. As the Court held in Loretto:

[A] “taking” may more readily be found when

the interference with property can be charac-

terized as a physical invasion by govern-

ment. . . . [wJhen the physical intrusion reaches

the extreme form of a permanent physical occu-

pation, a taking has occurred. In such a case,

“the character of the government action” not

only is an important factor in resolving whether

the action works a taking but also is determina-

tive.

Loretto, 458 U.S. at 426, 102 S.Ct. 3164. The categorical

rule applicable to physical invasion cases is clearly not

applicable to the present case.

App. 18

“The second situation in which (the Court] ha{s]

found categorical treatment appropriate is where regula-

tion denies all economically beneficial or productive use

of land.” Lucas, 505 U.S. at 1015, 112 S.Ct. 2886; see also

Agins, 447 U.S. at 260, 100 S.Ct. 2138. Here, too, ad hoc

balancing is not required because one factor of the Penn

Central test becomes dispositive. In this instance, it is the

_ “economic impact of the regulation” that becomes deter-

minative: the regulation constitutes a “categorical” taking

when it deprives the claimant of “all economically benefi-

cial and productive use of [his] land.” Lucas, 505 U.S. at

1015, 112 S.Ct. 2886. Cf. Dodd, 136 F.3d at 1228.12

With respect to Periods I and II, the only question

before us-is whether the rule set forth in Lucas applies -

that is, whether a categorical taking occurred because

Ordinance 81-5 and Resolution 83-21 denied the plaintiffs

“all economically beneficial or productive use of land.”

Lucas, 505 U.S. at 1015, 112 S.Ct. 2886. Below, the district

court ruled that the regulations did not constitute a tak-

ing under Penn Central's ad hoc approach, but that they

did constitute a categorical taking under Lucas. See Tahoe-

Sierra Preservation Council, 34 F.Supp.2d at 1238-45. The

defendants appealed the district court's latter holding,

but the plaintiffs did not appeal the former. And even if

2 As do other courts, we use the term “categorical taking”

throughout this opinion as a shorthand reference to government

action that is determined to be a “taking” under the categorical

approach set forth in Lucas (where the “economic impact of the

regulation” is determinative). See, e.g., District Intown Properties,

198 F.3d at 882-83; Dodd, 136 F.3d at 1228. In other words, as

with the categorical approach set forth in Loretto, it is the

approach that is categorical, not the “taking.”

App. 19

arguments regarding the Penn Central test were fairly

encompassed by the defendants’ appeal, the plaintiffs

have stated explicitly on this appeal that they do not

argue that the regulations constitute a taking under the

ad hoc balancing approach described in Penn Central.

More generally, the plaintiffs do not contest that Califor-

nia’s and Nevada’s objective of preserving the environ-

mental health and aesthetic beauty of Lake Tahoe is an

entirely permissible governmental goal. Nor do they dis-

pute that the restrictions imposed on their properties are

appropriate means of securing the purpose set forth in

the Compact. In view of the limited nature of the plain-

tiffs’ arguments on appeal, we address our specific

inquiry to whether the facts of this case present one of the

“relatively rare situations” where “regulation denies all

economically beneficial or productive use of land.” Lucas,

505 U.S. at 1018, 112 S.Ct. 2886.

Our focus is also narrowed by the fact that the plain-

tiffs bring only a facial challenge to Ordinance 81-5 and

Resolution 83-21. In facial takings claims, our inquiry is

limited to “whether the mere enactment of the [regula-

tion] constitutes a taking.” Agins, 447 U.S. at 260, 100

S.Ct. 2138; see also Keystone Bituminous Coal Ass‘n, 480 U.S.

at 493, 107 S.Ct. 1232; Hodel v. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. 264, 295, 101 S.Ct. 2352, 69

L.Ed.2d 1 (1981); Garneau v. City of Seattle, 147 F.3d 802,

807 (9th Cir.1998). For that reason, we look only to the

regulation’s ” ‘general scope and dominant features,’ ”

rather than to the effect of the application of the regula-

tion in specific circumstances. Garneau, 147 F.3d at 807

(quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365,

397, 47 S.Ct. 114, 71 L.Ed. 303 (1926)); see also Agins, 447

” 4

App. 20

U.S. at 260, 100 S.Ct. 2138; Keystone Bituminous Coal Ass'n,

480 U.S. at 493, 494, 107 S.Ct. 1232; Virginia Surface Mining

& Reclamation Ass’n, 452 U.S. at 297, 101 S.Ct. 2352. In this

connection, “since it is difficult to demonstrate that [the]

‘mere enactment’ of a piece of legislation” amounts to a

taking, the Court has recognized that facial takings chal-

lenges “face an uphill battle.” Suitum v. Tahoe Reg’! Plan-

ning Agency, 520 U.S. 725, 736 n. 10, 117 S.Ct. 1659, 137

L.Ed.2d 980 (1997); see also Keystone Bituminous Coal Ass'n,

480 U.S. at 495, 107 S.Ct. 1232; Garneau, 147 F.3d at 807.

The plaintiffs contend that, for purposes of determin-

ing whether the regulations constitute a categorical tak-

ing under Lucas, we should not treat the plaintiffs’

properties as the fee interests that they are. Instead, they

argue, we should define narrowly, as a separate property

interest, the temporal “slice” of each fee that covers the

time span during which Ordinance 81-5 and Resolution

83-21 were in effect. It is this carved-out piece of each

plaintiff's property interest, the plaintiffs assert, that has

been “taken” by the regulations.

“Because our test for regulatory taking requires us to

compare the value that has been taken from the property

with the value that remains in the property, one of the

critical questions is determining how to define the unit of

property ‘whose value is to furnish the denominator of

the fraction.’ “13 Keystone Bituminous Coal Ass'n, 480 U.S.

13 The problem of defining the relevant property interest at

stake is commonly referred to as either the “denominator

problem” or the problem of “conceptual severance.”

App. 21

at 497, 107 S.Ct. 1232 (quoting Frank I. Michelman, Prop-

erty, Utility, and Fairness: Comments on the Ethical Founda-

tions of “Just Compensation” Law, 80 Harv. L.Rev. 1165,

1192 (1967)). In other words, for purposes of determining

whether a “taking” of the plaintiffs’ “property” has

occurred, the proper inquiry is what constitutes the rele-

vant “property”? Is it the fee interest that must be

“taken,” or is it some lesser unit of property? Property

interests may have many different dimensions. For exam-

ple, the dimensions of a property interest may include a

physical dimension (which describes the size and shape

of the property in question), a functional dimension

(which describes the extent to which an owner may use

or dispose of the property in question), and a temporal

dimension (which describes the duration of the property

interest). At base, the plaintiffs’ argument is that we

should conceptually sever each plaintiff’s fee interest into

discrete segments in at least one of these dimensions -

the temporal one - and treat each of those segments as

separate and distinct property interests for purposes of

takings analysis. Under this theory, they argue that there

was a categorical taking of one of those temporal seg-

ments.

While Supreme Court precedent has not over the

years been entirely uniform in its treatment of the con-

ceptual severance question, compare Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)

(employing conceptual severance) with Keystone RBit-

uminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 107 S.Ct.

1232, 94 L.Ed.2d 472 (1987) (rejecting conceptual sever-

ance in the identical context), most modern case law

rejects the invitation of property holders to engage in

App. 22

conceptual severance, except in cases of physical invasion

or occupation. Several cases illustrate the Court's refusal

to employ this concept in other types of circumstances. In

Penn Central Transportation Company v. City of New York,

the Penn Central Transportation Company entered into a

contract for the construction and lease of an office build-

ing above its Grand Central Terminal in New York City.

438 U.S. at 116, 98 S.Ct. 2646. When the City denied two

alternate building plans on the ground that they would

destroy the architectural appeal of the historic landmark,

Penn Central filed suit, claiming that the rejection of the

building plans constituted a taking. Id. at 117-18, 98 S.Ct.

2646. In affirming the denial of its takings claim, the

Court explicitly rejected Penn Central’s proposal to con-

sider the airspace above the Terminal as a property inter-

est separate from the rest of the Terminal site. The Court

explained:

“Taking” jurisprudence does not divide a single

parcel into discrete segments and attempt to

determine whether rights in a particular seg-

ment have been entirely abrogated. In deciding

whether a particular governmental action has

effected a taking, this Court focuses rather both

on the character of the action and on the nature

and extent of the interference with rights in the

parcel as a whole — here, the city tax block desig-

nated as the “landmark site.”

Id. (emphasis added); see also MacLeod v. County of Santa

Clara, 749 F.2d 541, 547 (9th Cir.1984).

The Court also refused to employ conceptual sever-

ance in Keystone Bituminous Coal Association v.

App. 23

DeBenedictis, which considered the effect of Pennsylva-

nia’s Bituminous Mine Subsidence and Land Conserva-

tion Act on the property rights of mining companies. As

implemented, the Act generally required 50% of the coal

beneath certain protected structures to be kept in place as

a means of providing surface support. Id. at 476-77, 107

S.Ct. 1232. The petitioners, who had purchased both min-

ing rights and waivers for any surface damage caused by

mining, argued that the Act constituted a taking. Id. at

478-79, 107 S.Ct. 1232. In particular, the petitioners

argued that the Act appropriated the portion of coal that

they were required to leave in the ground. Id. at 497, 107

S.Ct. 1232. They also argued that the Act entirely

destroyed the value of each petitioner's “support estate,”

which is recognized under Pennsylvania law as a sepa-

rate interest in land. Id. In essence, the petitioners argued

that there had been a categorical taking of these two

distinct property interests.

In holding that the regulation of the petitioners’ min-

ing rights did not amount to a taking, the Supreme Court

refused to consider the coal that the Act required the

petitioners to leave in place as a separate property inter-

est; rather, the Court emphasized, takings jurisprudence

must consider the “parcel as a whole.” Id. at 497-99, 107

S.Ct. 1232. In addition, the Court described Pennsylva-

nia’s recognition of a support estate as a “legalistic dis-

tinction{ }” that could not convert the support estate into

a separate property interest for takings law purposes. Id.

at 500-02, 107 S.Ct. 1232.

The Court’s general rule against conceptual sever-

ance is not limited to the spatial dimension of property

rights. In Andrus v. Allard, the Court applied its general

App. 24

rule in a more functional dimension, to the “bundle” of

rights that make up what we think of as “property.” In

that case, federal regulation prohibited the sale of eagle

feathers. Id. at 53-54, 100 S.Ct. 318. The plaintiffs argued

that the denial of the right to sell their feathers constitu-

ted a taking. Id. at 64 & n. 21, 100 S.Ct. 318. The Court

rejected the takings claim, and, in so doing, rejected the

conceptual disaggregation of property rights: “[WJhere

an owner possesses a full ‘bundle’ of property rights, the

destruction of one ‘strand’ of the bundle is not a taking

because the aggregate must be viewed in its entirety.”

Andrus, 444 U.S. at 65-66, 100 S.Ct. 318 (citing Penn Cen-

tral, 438 U.S. at 130-31, 98 S.Ct. 2646).14

In fact, the Supreme Court has already once rejected

conceptual severance in the temporal dimension of prop-

erty rights. In Agins v. Tiburon, the city of Tiburon had

instituted condemnation proceedings against the plain-

tiffs’ property, but abandoned the proceedings a year

later. The plaintiffs brought suit, contending, inter alia,

“that the city’s aborted attempt to acquire the land

through eminent domain had destroyed the use of the

4 Although Andrus demonstrates that individual strands

of the property-rights bundle should generally not be treated as

separate property interests, the Supreme Court has held that the

total abrogation of the “right to exclude” may in certain

circumstances constitute a taking because it “will result in an

actual physical invasion of the privately owned [property].”

Kaiser Aetna v. United States, 444 U.S. at 179-80, 100 S.Ct. 383. Cf.

Irving, 481 U.S. at 716, 107 S.Ct. 2076 (holding, under the special

circumstances of that case, that the complete abrogation of the

plaintiffs’ rights of descent and devise was “similar[ ]” to the

denial of the right to exclude invalidated in Kaiser Aetna, and

thus resulted in a taking).

App. 25

land during the pendency of the condemnation proceed-

ings.” At 258 n. 3, 100 S.Ct. 2138.Agins, 447 U.S. The

Supreme Court rejected the plaintiffs’ claim, holding:

The State Supreme Court correctly rejected the

contention that the municipality’s good faith

planning activities, which did not result in the

successful prosecution of an eminent domain

claim, so burdened the appellants’ enjoyment of

their property so as to constitute a taking. Even

if the appellants’ ability to sell their property

was limited during the pendency of the con-

demnation proceeding, the appellants were free

to sell or develop their property when the pro-

ceedings ended. Mere fluctuations in value during

the process of governmental decisionmaking, absent

extraordinary delay, are “incidents of ownership.

They cannot be considered as a ‘taking’ in the consti-

tutional sense.”

447 US. at 263 n. 9, 100 S.Ct. 2138 (citations omitted)

(emphasis added) (quoting Danforth v. United States, 308

U.S. 271, 285, 60 S.Ct. 231, 84 L.Ed. 240 (1939)). In reject-

ing the takings claim, the Court relied only on the fact

that the plaintiffs were able to sell or develop their prop-

erty after the city abandoned its condemnation claim. By

relying on the temporary nature of the restriction, the

Court rejected the invitation to carve out, as a separate

property interest, a temporal “slice” of the parcel that

existed for the time period during which the condemna-

tion proceedings were in progress. For, had the Court

considered the plaintiffs’ rights in their property during

that time period as a separate interest, the plaintiffs’

ability to sell or develop their property after the time

period ended would have been irrelevant to the Court's

takings analysis. Only the ability to sell or develop the

App. 26

property during the condemnation period would have

mattered.

Agins’s rejection of conceptual severance in the tem-

poral dimension is consistent with the Court's rejection of

other forms of conceptual severance in Penn Central and

Andrus. It would make little sense to accept temporal

severance and reject spatial or functional severance. A

planning regulation that prevents the development of a

parcel for a temporary period of time is conceptually no

different than a land-use restriction that permanently

denies all use on a discrete portion of property, or that

permanently restricts a type of use across all of the par-

cel. See Margaret Jane Radin, The Liberal Conception of

Property: Cross Currents in the Jurisprudence of Takings, 88

Colum.L.Rev. 1667, 1674-78 (1988). Each of these three

types of regulation will have an impact on the parcel’s

value, because each will affect an aspect of the owner's

“use” of the property — by restricting when the “use” may

occur, where the “use” may occur, or how the “use” may

occur. Prior to Agins, the Court had already rejected

takings challenges to regulations eliminating all “use” on

a portion of the property, and to regulations restricting

the type of “use” across the breadth of the property. See

Penn Central, 438 U.S. at 130-31, 98 S.Ct. 2646; Keystone

Bituminous Coal Ass'n, 480 U.S. at 498-99, 107 S.Ct. 1232;

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 397,

47 S.Ct. 114, 71 L.Ed. 303 (1926) (75% diminution in value

caused by zoning law); see also William C. Haas & Co. v.

City & County of San Francisco, 605 F.2d 1117, 1120 (9th

Cir.1979) (value reduced from $2,000,000 to $100,000). In

those cases, the Court “uniformly reject[ed] the proposi-

tion that diminution in property value, standing alone,

App. 27

can establish a ‘taking.’ ” Penn Central, 438 U.S. at 131, 98

S.Ct. 2646; see also Concrete Pipe and Products, Inc. v. Con-

struction Laborers Pension Trust, 508 U.S. 602, 645, 113 S.Ct.

2264, 124 L.Ed.2d 539 (1993). There is no plausible basis

on which to distinguish a similar diminution in value that

results from a temporary suspension of development.

To not reject the concept of temporal severance, we

would risk converting every temporary planning mor-

atorium into a categorical taking. See Penn Central, 438

U.S. at 130, 98 S.Ct. 2646; Stern v. Halligan, 158 F.3d 729,

734 (3rd Cir.1998); Michelman, supra, at 1193. Such a

result would run contrary to the Court’s explanation that

it is “relatively rare” that government “regulation denies

all economically beneficial or productive use of land.”

Lucas, 505 U.S. at 1015, 112 S.Ct. 2886.

More important, the widespread invalidation of tem-

porary planning moratoria would deprive state and local

governments of an important land-use planning tool with

a well-established tradition. Land-use planning is neces-

sarily a complex, time-consuming undertaking for a com-

munity, especially in a situation as unique as this. In

several ways, temporary development moratoria promote

effective planning. First, by preserving the status quo

during the planning process, temporary moratoria ensure

that a community’s problems are not exacerbated during

the time it takes to formulate a regulatory scheme. See

Elizabeth A. Garvin & Martin L. Leitner, Drafting Interim

Development Ordinances: Creating Time to Plan, Land Use

Law and Zoning Digest, June 1996, at 3, 3; Schafer v. City

of New Orleans, 743 F.2d 1086, 1090 (5th Cir.1984).

Relatedly, temporary development moratoria prevent

developers and landowners from racing to carry out

App. 28

development that is destructive of the community’s inter-

ests before a new plan goes into effect. Such a race-to-

development would permit property owners to evade the

land-use plan and undermine its goals. See id.; Miller v.

Board of Public Works, 195 Cal. 477, 234 P. 381, 388 (1925).15

Finally, the breathing room provided by temporary mor-

atoria helps ensure that the planning process is respon-

sive to the property owners and citizens who will be

affected by the resulting land-use regulations. See Robert

H. Freilich, Interim Development Controls: Essential Tools for

Implementing Flexible Planning and Zoning, 49 J. Urb. Law

65, 79 (1971). Absent the pressure of trying to out-speed

developers who are attempting to circumvent the plan-

ning goals, the “planning and implementation process

may be permitted to run its full and natural course with

widespread citizen input and involvement, public debate,

and full consideration of all issues and points of view.”

Garvin and Leitner, supra, at 3. Given the importance and

long-standing use temporary moratoria, courts should be

exceedingly reluctant to adopt rulings that would

threaten the survival of this crucial planning mechanism.

In opposition to the overwhelming legal and logical

support for not conceptually severing fee interests into

small temporal pieces, the plaintiffs argue (and the dis-

trict court below decided) that the Court’s decision in

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250

8 In fact, there is evidence that such a race-to-d

evelo

sdapllan <6 too thtb Oengen an oyu Sona he

ompact. See Tahoe-Sierra P j

Council, 34 F.Supp.2d at 1241. . “+4

———

App. 29

(1987), compels such conceptual severance of the prop-

erty rights in this case. The plaintiffs contend that First

English holds that conceptual severance of the temporal

dimension o/ property interests is generally required.

This argument is flatly incorrect.

First English is not even a case about what constitutes

a taking. In First English, property owners challenged an

ordinance that prevented the development of property

located on a flood plain; they sought “damages for the

uncompensated taking of all use” of the property. See id.

at 309, 107 S.Ct. 2378. The California Court of Appeal

rejected their claims on the ground that, regardless of

whether a taking occurred, the claimants could not

recover damages during the period running from the

time of enactment of the ordinance to the time when it

was finally declared unconstitutional. See id. Because the

question presented to the Supreme Court related only to

the remedy available once a taking had been proven, the

Court stated explicitly that it was not addressing whether

the ordinance constituted a taking. See id. at 313, 107 S.Ct.

2378 (“We accordingly have no occasion to decide

whether the ordinance at issue actually denied appellant

all use of its property. . . . ”). According to the Court, it

was resolving only the question whether, once a taking is

established, “abandonment [of that taking] by the govern-

ment requires payment of compensation for the period of

time during which regulations” that constitute a taking

are in effect. Id. at 318, 107 S.Ct. 2378; see also Id. at 311,

107 S.Ct. 2378 (noting that the “disposition of the case [by

the California court on the assumption that a taking

occurred] isolates the remedial question for our consider-

ation”); Michelman, supra, at 1617 & n. 81.

App. 30

It is true that First English holds that, when a taking |

has occurred, the government must compensate property

owners, even if the taking is “temporary.” Contrary to the

plaintiffs’ suggestion, however, the Court’s holding in

First English was not that temporary moratoria are “tem-

porary takings.” In fact, the opposite is true. The First

English Court very carefully defined ” ‘temporary’ regula-

tory takings [as] those regulatory takings which are ulti-

S.Ct. 2378. What is “temporary,” according to the Court's

definition, is not the regulation; rather, what is “tempor-

ary” is the taking, which is rendered temporary only

when an ordinance that effects a taking is struck down by

a court. In other words, a permanent regulation leads to a

“temporary” taking when a court invalidates the ordi-

nance after the taking. See id. at 319, 107 S.Ct. 2378

(“Invalidation of the ordinance or its successor ordinance

after this period of time, though converting the taking

into a ‘temporary’ one, is not a sufficient remedy to meet

the demands of the Just Compensation Clause.”); id. at

317, 107 S.Ct. 2378 (discussing the fact “that the govern-

ment may elect to abandon its intrusion or discontinue

regulations,” and thereby turn what would otherwise be

a “permanent taking” into a ” ‘temporary’ taking”). The

Court’s definition, therefore, does not comprehend tem-

porary moratoria, which from the outset are designed to

last for only a limited period of time. In short, we reject

the plaintiffs’ contentions that First English applies to

temporary moratoria and that it works a radical change

16 The Court was careful to include quotation marks —

around the word “temporary” whenever it referred to a

“temporary” taking, in order to make clear that it was using the

concept in the specific sense in which it had defined it.

App. 31

to takings law by requiring that property interests be

carved up into finite temporal segments. !”

17 In concluding that First English created a categorical rule

in favor of temporal severance, the district court relied heavily

on the Court’s statement in First English that it “do[es] not deal

with the quite different questions that would arise in the case of

normal delays in obtaining building permits, changes in zoning

ordinances, variances, and the like which are not before us.” 482

U.S. at 321, 107 S.Ct. 2378. The district court held that the

statement amounted to an enumeration of the acceptable forms

of planning-related temporary development prohibitions, and

that this statement implied the existence of a categorical rule

prohibiting temporary development delays caused by

regulatory actions other than those listed in the Court’s

statement. We do not think, however, that the Court intended to

create a new categorical rule concerning what constitutes a

taking (one that would directly conflict with the principles

applied in previous cases) in a passing remark about what the

Court “do[es] not deal with.” This is especially so in light of the

fact that, in First English, the Court repeatedly stated that the

question whether a taking occurred was not before it. Even were

we to accord the Court’s dictum some weight, it appears to

support, rather than undermine, our position. The list suggests

that planning activities that temporarily prohibit development

do not constitute takings. There is no suggestion that the list is

exclusive. In fact, reading it to be exclusive would require us to

draw a constitutional distinction between different

conventional planning tools that result in similar development

delays. We think such a distinction is untenable. Moreover, even

were we to treat the list as exclusive, it appears to encompass

temporary planning moratoria. The list allows for “normal

delays in obtaining . . . changes in zoning ordinances.” 482 U.S.

at 321, 107 S.Ct. 2378. The reason that changes in zoning

ordinances generally lead to delays and development, however,

is that local governments often enact temporary development

moratoria during the period in which the new ordinance is

being formulated. See supra at 777. Thus, even the list itself

appears to contemplate temporary development moratoria.

App. 32

In addition to misinterpreting First English, the dis-

trict court erred in concluding that United States v. General

Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311

(1945), and United States v. Petty Motor Co., 327 U.S. 372,

66 S.Ct. 596, 90 L.Ed. 729 (1946), support conceptual

severance in the present case. In these cases, the federal

government used its power of eminent domain to con-

demn leaseholds during World War II. Both cases were

concerned with the level of compensation owed to the

ousted lessees. The fact that just compensation was

required in these cases, however, has no bearing on the

question before us. Both cases involved the physical occu-

pation by the federal government of the property at issue

and thus fall within the categorical rule establic‘ied by

the Court for cases involving physical invasions. As we

have explained, physical occupations and appropriations

have always received markedly different analytic treat-

ment than other regulatory takings. The Supreme Court

has clearly held that the physical invasion or possession

by the government of a fragment of a larger parcel consti-

tutes a per se taking - in other words, conceptual sever-

ance is the norm. See, e.g., Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164,

73 L.Ed.2d 868 (1982). Just as General Motors and Petty

Motor require compensation for the government’s con-

demnation of a leasehold, Loretto requires compensation

for the permanent physical appropriation of a tiny frag-

- ment of an apartment building. See Loretto, 458 U.S. at

426, 102 S.Ct. 3164. The conceptual severance that is the

App. 33

norm in these physical appropriation cases, however,

does not extend to other regulatory takings claims.

In short, we reject the plaintiffs’ suggestion that we

engage in conceptual severance. The relevant property

interests in the present case are the whole parcels of

property that the plaintiffs own.

Having determined that the property interest at stake

is just what one would expect it to be — the plaintiffs’ fee

int2rests - we must evaluate whether Ordinance 81-5 and

Resolution 83-21 effected a categorical taking of each

plaintiff's property.19 For purposes of this analysis, two

features of these provisions are relevant. First, the provi-

sions effectively placed a moratorium on the develop-

ment of the plaintiffs’ property.2° The second relevant

18 In fact, in a World War II era case involving a regulation

that prohibited the owners of gold mines from using those

mines, rather than permitting the government to take

possession of the property, the Court found that no taking

occurred. See United States v. Central Eureka Mining Co., 357 U.S.

155, 168-69, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958).

19 Although TRPA first passed Ordinance 81-5 and later

adopted Resolution 83-21, each regulation was designed to

terminate upon the occurrence of the same event - TRPA’s

adoption of an amended regional plan. Accordingly, we treat

the regulations as creating a single temporary moratorium that

was designed to and did run from the date on which Ordinance

81-5 became effective to the date on which TRPA adopted the

1984 Plan.

20 This is actually an overstatement. As the district court

noted, both regulations may have permitted certain limited

App. 34

feature of the provisions is that the moratorium they

effected was intended to be temporary - the regulations

were designed to institute a temporary moratorium that

would remain in effect only until a new regional land-use

plan could be adopted.?! See Union Oil Co. v. Morton, 512

F.2d 743, 751 (9th Cir.1975) (describing a regulation as

temporary if its “termination is conditioned [on] the

occurrence of certain future events”).

To determine whether the temporary moratorium

instituted by TRPA’s regulations denies “all economically

beneficial or productive use” of the plaintiffs’ land, we

must first consider the meaning of the phrase “economi-

cally beneficial or productive use.” The phrase’s precise

meaning is elusive, and has not been clarified by the

development, particularly on the Class 1-3 land. See Tahoe-Sierra

Preservation Council, 34 F.Supp.2d at 1243-44. The district court

concluded that these development possibilities were negligible,

and did not affect the “takings” calculus. While we have some

doubts about the district court’s conclusion, the correctness of

that conclusion is irrelevant to our analysis. Accordingly, we

will assume arguendo that the moratorium prevented all

development in the period during which it was in effect.

21 We acknowledge that, given that moratoria are, by

definition, temporary, it is redundant to refer to a moratorium

as a “temporary moratorium.” See Webster’s Third New

International Dictionary 1469 (1976) (defining “moratorium” as

a “waiting period set by some authority: a delay officially

required or granted”). Nevertheless, because the parties, the

district court, and this court have all repeatedly referred to the

moratorium at issue in the present case as a “temporary

moratorium,” and because it emphasizes the temporary nature

of the development ban, we use that designation here. See, e.g.,

TSPC I, 911 F.2d at 1339; TSPC II, 938 F.2d at 155; Tahoe-Sierra

Preservation Council, 34 F.Supp.2d at 1248.

App. 35

Supreme Court. See, e.g., Lake Nacimiento Ranch Co. v.

County of San Luis Obispo, 841 F.2d 872, 877 (9th Cir.1988).

The central confusion over its meaning centers on the

relationship between the “use” of property and its

“value.”22 Clearly, the economic value of property pro-

vides strong evidence of the availability of “economically

beneficial or productive uses” of that property.

22 See William C. Haas & Co., 605 F.2d at 1120-21 (noting the

close relationship between a land-use regulation’s effect on the

available “use” of a property and the effect on its “value”);

MacLeod, 749 F.2d at 546 (implicitly noting the same).

23 Many cases treat the “use” and “value” interchangeably,

or speak only of the effect of a regulation on the property’s

value. See, e.g., TSPC I, 911 F.2d at 1335 (suggesting that a

“taking” is measured by “diminution of the value of plaintiffs’

land”); Lucas, 505 U.S. at 1017, 112 S.Ct. 2886 (“What is land but

the profits thereof?”); Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. at 295, 101 S.Ct. 2352 (the “ad hoc, factual

inquiries” required under Agins’s “viable used” prong “must be

conducted with respect to . . . particular estimates of economic

impact and ultimate valuation relevant in the unique

circumstances”); MacLeod, 749 F.2d at 549 (“The determination

of whether or not an economically viable use of property

remains .. . turns upon the economic impact of the regulation

and, particularly, the extent to which the regulations or

prohibition has interfered with the distinct investment-backed

expectations of the claimant.” (citation omitted)); Carson Harbor

Village Ltd. v. City of Carson, 37 F.3d 468, 476 (9th Cir.1994),

overruled on other grounds by WMX Technologies v. Miller, 104 F.3d

1133, 1136 (9th Cir.1997) (en banc) (“In the takings context, the

basis of a facial challenge is that the very enactment of the

statute has reduced the value of the property or has effected a

transfer of a property interest.”); Keystone Bituminous Coal Ass‘n,

480 U.S. at 493, 500-501, 107 S.Ct. 1232; Suitum, 520 U.S. at 748,

117 S.Ct. 1659 (O’Connor, J., concurring); Lucas, 505 U.S. at 1009,

1010, 1017-18 & n. 8, 1020 & n. 9, 1026 & n. 13, 112 S.Ct. 2886;

Agins, 447 U.S. at 262, 100 S.Ct. 2138; Penn Coal, 260 U.S. at 413,

App. 36

Nevertheless, there are instances in which certain kinds

of “value” may be poor measures of the existence of such

uses. In any event, we need not resolve the sticky issues

surrounding the meaning and proof of the existence of

“economically beneficial or productive uses,” because it

is clear from the “general scope and dominant features”

of Ordinance 81-5 and Resolution 83-21 that the tempor-

ary moratorium imposed by these regulations did not

deprive the plaintiffs’ land in the Lake Tahoe Basin of

either all of its “value” or all of its “use.”2* Garneau, 147

F.3d at 807.

43 S.Ct. 158; Concrete Pipe, 508 U.S. 602, 644, 113 S.Ct. 2264, 124

L.Ed.2d 539 (1993).

24 The parties disagree over what kind of evidence either

party may introduce about the effect of the land-use regulations

on specific pieces of property. Before trial, the parties stipulated

that, because the action consists only of a facial challenge, “the

parties will not introduce evidence regarding the specific

factual situations of individual plaintiffs.” In spite of this

stipulation, the defendants argue on appeal that, even though

the plaintiffs brought only a facial challenge, the plaintiffs

cannot succeed in proving that a taking occurred without

introducing evidence regarding the specific economic impact of

the regulations on their individual properties. The defendants’

t that individualized evidence is required is in tension

with the pre-trial stipulation. It is also in tension with the

statement, made in several cases, that a facial taking challenge

“present([s} no concrete controversy concerning . . . [the legal

provision’s) effect on specific parcels of land.” Virginia Surface

Mining & Reclamation Ass’n, 452 U.S. at 295, 101 S.Ct. 2352. This

tension need not be resolved, however, because reference to the

general features of the land-use regulations at issue is sufficient

to demonstrate that those regulations do not deprive the

plaintiffs’ property of all use or value.

App. 37

First, as amici Cities and Counties of California note,

basic principles of economics show that the moratorium

did not render the plaintiffs’ property valueless. See

generally Lucas, 505 U.S. at 1020, 112 S.Ct. 2886 (assuming,

as the basis for its decision, that the regulation at issue

rendered Lucas’s two beachfront lots “valueless”). The

moratorium was temporary - it was designed to and did

dissolve upon the adoption of a new regional plan. Given

that the ordinance and resolution banned development

for only a limited period, these regulations preserved the

25 In resolving the question of the remaining value of the

piaintiffs’ property, the district court relied heavily on Del Monte

Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th

Cir.1996). Because the general features of the regulation at issue

in the present case make clear that the plaintiffs’ property

retains value, Del Monte Dunes’s discussion of proof of value is

irrelevant to our determination. We should note, however, that

the district court misread Del Monte Dunes in at least two ways.

First, the district court ignored the fact that the Del Monte Dunes

court was reviewing a jury’s finding that a taking occurred, and

that the Del Monte Dunes court thus considered only whether

there was sufficient evidence to support the jury’s finding. See

95 F.3d at 1433. Second, the district court interpreted Del Monte

Dunes to hold that a “competitive market” is necessary to

preclude a finding that a taking occurred.However, Del Monte

Dunes does not stand for so strong a proposition: the Del Monte

Dunes court held only that, as a matter of law, the presence of a

single buyer was not sufficient to require the court to upset the

jury’s finding that a taking had occurred. See id. at 1432-33. The

only mention Del Monte Dunes makes of a “competitive market”

is its suggestion that the absence of such a market is a piece of

evidence that may tend to support a finding of an absence of

value. See id. at 1433.

App. 38

bulk of the future developmental use of the property. This

future use had a substantial present value.?6

Of course, were a temporary moratorium designed to

be in force so long as to eliminate all present value of a

property’s future use, we might be compelled to conclude

that a categorical taking had occurred. We doubt, how-

ever, that a true temporary moratorium would ever be

designed to last for so long a period. Certainly, the mor-

atorium at issue here was not. The temporary mor-

atorium was designed to suspend development only until

a new regional land-use plan could be formulated - a

process that the 1980 Compact intended would take thirty

months. While the completion of the regional plan actu-

ally took forty months (which led to the temporary mor-

atorium remaining in effect for eight months longer than

expected), the moratorium still was in effect for only

thirty-two months.”

26 This economic reality is precisely what differentiates a

permanent ban on development, even if subsequently

invalidated, from a temporary one. Basic economic theory

demonstrates that the present value of land depends on the

potential for future use. Accordingly, when a permanent

development ban (like the one at issue in Lucas ) is enacted, the

value of the affected land plummets, on account of the fact that

the ban bars all future development of the property. In contrast,

when a temporary ban is enacted, both the owner of the affected

land and any prospective purchasers know that, at a specific

point in the future, the moratorium will no longer prohibit the

development of the land at issue.

27 We note that the average time between land purchase

and development may be as long as 25 years. See Tahoe-Sierra

Preservation Council, 34 F.Supp.2d at 1240.

App. 39

Moreover, there is no evidence that owners or pur-

chasers of property in the basin anticipated that the tem-

porary moratorium would continue indefinitely. Nor

would they have had reason to: the district court found

that TRPA worked diligently to complete the regional

plan as quickly as possible. See Tahoe-Sierra Preservation

Council, 34 F.Supp.2d at 1250-51. Thus, while the tempor-

ary moratorium surely had a negative impact on property

values in the basin, we cannot conclude that the interim

suspension of development wiped out the value of the

plaintiffs’ properties.

Furthermore, the temporary moratorium did not

deprive the plaintiffs of all “use” of their property. The

“use” of the plaintiffs’ property runs from the present to

the future. (This is a simple corollary of our earlier con-

clusion that the plaintiffs’ property interests may not be

temporally severed.)?* By instituting a temporary devel-

opment moratorium, TRPA denied the plaintiffs only a

small portion of this future stream; the thirty-two months

during which the moratorium was in effect represents a

small fraction of the useful life of the Tahoe properties.?9

28 This corollary also demonstrates that, had we engaged in

conceptual severance, we would have read into the Takings

Clause a requirement that the government never interfere with a

property owner’s wish to put his property to immediate use.

29 Although we need not rely on it, we note that, even

during the period of time during which the moratorium was in

effect, there were cognizable “uses” to which the basin property

could have been put. Although we assume for purposes of our

disposition that no development of the property was permitted,

see supra note 19, “use” includes much more than development.

For example, Lucas treats the sale of property as an

“economically productive use.” See Lucas, 505 U.S. at 1028, 112

App. 40

Because the temporary development moratorium

enacted by TRPA did not deprive the plaintiffs of all of

the value or use of their property, we hold that it did not

effect a categorical taking.*° Indeed, given the above anal-

ysis, it is equally clear that the district court was correct

to conclude that the moratorium did not constitute a

taking under the Penn Central test. See Tahoe-Sierra Preser-

vation Council, 34 F.Supp.2d at 1240-42. Thus, while the

district court was correct as to this latter point, we

reverse its holding that a categorical taking occurred. In

reaching this conclusion, we preserve the ability of local

governments to do what they have done for many years —

to engage in orderly, reasonable land-use planning

through a considered and deliberative process. To do

otherwise would turn the Takings Clause into a weapon

to be used indiscriminately to penalize local communities

for attempting to protect the public interest.

Il. TIME PERIOD III

The plaintiffs raise two issues on cross-appeal, the

first of which concerns the district court’s holding

S.Ct. 2886. In addition, we have held that “[hjolding property

for investment purposes can be a ‘use’ of property.” MacLeod,

749 F.2d at 546 n. 7.

findings made by the district court, only its legal conclusions.

Although the district court found that the plaintiffs were denied

“all economically beneficial or productive use” of their

property, it did so on the basis of its legal conclusion that only

substantial developmental uses available during the

moratorium period were relevant.

App. 41

regarding Period III — the period after the passage of the

1984 Plan and before the passage of the 1987 Plan.*! The

district court held that TRPA’s adoption of the 1984 Plan

was not the actionable cause of any deprivation of the

plaintiffs’ Fifth and Fourteenth Amendment rights that

occurred during this period. According to the court, the

injunction issued by Judge Garcia against TRPA, in a

separate suit brought by the state of California and the

League to Save Lake Tahoe, prevented the adoption of the

1984 Plan from being either the “but for” or the proxi-

mate cause of any taking that may have occurred during

Period III. For this reason, the court held that, as to that

period, TRPA could not be held liable under § 1983.52 On

cross-appeal, the plaintiffs argue that the district court

erred in concluding that TRPA’s actions were not the legal

cause of any taking during the period in question.

In a section 1983 action, the plaintiff must demon-

strate that the defendant’s conduct was the actionable

cause of the claimed injury. See, e.g., Arnold v. IBM Corp.,

637 F.2d 1350, 1355 (9th Cir.1981). To meet this causation

requirement, the plaintiff must establish both causation-

in-fact and proximate causation. See Van Ort v. Estute of

Stanewich, 92 F.3d 831, 837 (9th Cir.1996); Arnold, 637 F.2d

31 This portion of the appeal concerns only the California-

side plaintiffs. See supra note 7.

32 Because the district court concluded that TRPA could not

be held liable for any taking that occurred during the 1984-87

period, it did not determine (1) whether the developmental

moratorium effected by the injunction actually amounted to a

taking, or (2) whether the 1984 Plan, had it been implemented,

would have amounted to a taking. We, too, do not decide these

questions.

App. 42

at 1355; Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir.1959),

overruled in part on other grounds by Cohen v. Norris, 300

F.2d 24 (9th Cir.1962). The parties agree that this require-

ment applies to the plaintiffs’ § 1983 claims, which allege

a violation of the Takings Clause, as much as it would to

any other § 1983 claim.*° Like other factual determina-

tions, causation-in-fact is reviewed for clear error. In

addition, we review findings of proximate cause for clear

error, even though they present mixed questions of law

and fact. See Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th

Cir.1995) (holding that, although it “is an exception to the

general rule that mixed questions of law and fact are

reviewed de novo,” issues of proximate cause are

reviewed under the clearly erroneous standard); George v.

City of Long Beach, 973 F.2d 706, 709 (9th Cir.1992); Britton

v. Price, 950 F.2d 602, 604 (9th Cir.1991).%*

33 It is true that there is little discussion of a “causation”

requirement in any of the case law involving regulatory takings.

But cf. Penn Central, 438 U.S. at 124, 98 S.Ct. 2646 (noting, in

passing, the proximate cause requirement). However, this is due

to nothing more than the fact that, in most regulatory takings

cases, there is no doubt whatsoever about whether the

government's action was the cause of the alleged taking.

34 The plaintiffs suggest that, in the absence of sufficient

guidance from § 1983 cases or other federal constitutional case

law, we should look to state tort law for guidance as to the

meaning of proximate cause. The Supreme Court “ha(s]

repeatedly noted that 42 U.S.C. § 1983 creates a species of tort

liability, and ha[s] interpreted the statute in light of the

background of tort liability.” City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687, 709, 119 S.Ct. 1624, 143 L.Ed.2d

882 (1999) (citations and internal quotation marks omitted).

Nevertheless, there are meaningful differences between § 1983

liability and state tort liability, and these differences may in

App. 43

The plaintiffs argue on two grounds that the district

court clearly erred when it concluded that TRPA’s con-

duct was not the actionable cause of the claimed taking of

the plaintiffs’ property from 1984 to 1987. First, they

argue that the injunction is irrelevant to any consider-

ation of “cause,” because the 1984 Plan was actually

implemented and itself constituted a regulatory taking.35

We disagree. Contrary to the plaintiffs’ contention, the

injunction issued by Judge Garcia effectively prohibited

the implementation of the 1984 Plan.% The order that

granted the injunction read in pertinent part:

That, until conclusion of trial of this matter, the

defendant TRPA, its agents, servants,

employees, and all other persons acting under

the authority of and in concert with TRPA,

hereby are enjoined and restrained from taking

certain circumstances diminish the relevance of, or warrant

departure from, the principles of tort liability. See Monell v.

Department of social Servs., 436 U.S. 658, 693-94, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978) (holding that the tort law doctrine of

respondent superior does not apply to § 1983 suits brought

against local governments). In the present case, we need not rely

on any specific state tort case law, because it is clear that under

forseeability analysis - which is widely accepted by both federal

and state case law as a conventional method of assessing

proximate cause - TRPA is not legally responsible for any taking

that occurred during Period III.

3° Although the plaintiffs did not raise this argument until

their cross-appeal reply brief, we exercise our discretion to

address it on the merits.

36 Because we conclude that the injunction prohibited the

implementation of the 1984 Plan, we need not decide whether

the plan, had it been implemented, would have constituted a

taking of the plaintiffs’ property. See supra note 32.

App. 44

any action to approve any project, as defined in

to [sic] Tahoe Regional Planning Compact, Pub-

lic Law 96-551, 94 Stat. 3233 (1980), or to

approve the construction of any man-made

development within the agency’s jurisdiction,

including the any of the 2,343 developments

referred to in the Court’s June 15, 1984 opinion,

and including the acceptance of applications for

such agency approval... .

As the district court’s order makes clear, the injunction

prohibited TRPA from taking “any action” to approve any

project, and even prohibited it from accepting permit

applications. Without the ability to accept, process, or

grant applications, it is impossible to see how TRPA

could have implemented the 1984 Plan, the purpose of

which was to regulate the granting of new permits.37

Consequently, as this court pointed out in TSPC II, “th{e]

plan never went into effect.”3* 938 F.2d at 155. Thus, the

1984 Plan itself could not have constituted a taking.

37 The plaintiffs suggest that the 1984 Plan somehow

effected a taking in the few days that passed between the time of

the plan’s adoption and the adoption of the TRO. As Judge B.

Fletcher noted in TSPC I, however, it would have been

impossible for TRPA to implement the plan during these few

days, or for the plaintiffs to “complete[ ] all the necessary

prerequisites to building, including getting a TRPA permit.”

TSPC I, 911 F.2d at 1344 (B. Fletcher, J., concurring).

38 The plaintiffs also argue that, even if the plan did not go

into effect, the injunction did not “prevent TRPA from providing

the Plaintiffs with Just Compensation.” The failure to provide

such compensation, they assert, is itself an actionable wrong.

The plaintiffs’ argument skips over the question of liability. If

TRPA is not legally responsible for any taking that occurred

during Period III, then TRPA has no obligation to provide just

compensation to the plaintiffs.

App. 45

In the alternative, the plaintiffs argue that, even if the

1984 Pian was not itself implemented, TRPA’s adoption of

the plan effectuated a taking by causing the injunction to

issue. Specifically, they contend that (1) the adoption of

the 1984 Plan was both a “but for” and the proximate

cause of the issuance of the injunction, and (2) the injunc-

tion constituted a taking of the plaintiffs’ property.39 For

at least two reasons, we reject the plaintiffs’ alternative

argument.

First, the district court did not clearly err in holding

that TRPA reasonably did not foresee that the 1984 Plan

would be enjoined. It is well-established that fore-

seeability analysis is an appropriate part of proximate

cause determinations in § 1983 actions. See, e.g., Arnold,

637 F.2d at 1355; Johnson, 588 F.2d at 743-44. Cf. Van Ort,

92 F.3d at 837 (noting that unforeseen, intervening causes

break the chain of proximate causation in § 1983 actions).

See generally Palsgraf v. Long Island R. Co., 248 N.Y. 339,

*° Although it is a logically necessary component of their

argument, the plaintiffs do not directly support their implicit

assertion that the court injunction resulted in a taking of the

plaintiffs’ property. Their general argument that a taking occurs

when a legislative or executive body implements a temporary

building moratorium provides indirect support for this

position, but the plaintiffs never explain why a temporary

moratorium ordered by a court should be treated in the same

fashion. In fact, there are good reasons to believe that a

government action that would otherwise constitute a taking

should be treated differently when it is ordered by a court.

Moreover, even if a court order could qualify as a taking, it is

not clear who, if anyone, would be held liable for that taking

under § 1983. Obviously, however, it would ordinarily not be

the party that has no choice but to follow the court order.

App. 46

162 N.E. 99 (1928). Employing such an analysis, the plain-

tiffs argue that TRPA is legally responsible for the

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