NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAN PHU CUONG INVESTMENT LLC, a No. 19-36051
Washington Limited Liability Company;
EMILIYA SHUPARSKAYA, a married D.C. No. 2:18-cv-01102-JCC
woman as her separate property,
Plaintiffs-Appellants, MEMORANDUM*
v.
KING COUNTY, a political subdivision of
the State of Washington,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted October 9, 2020**
Seattle, Washington
Before: HAWKINS, GILMAN,*** and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
This case concerns seven low-lying properties in unincorporated King
County, Washington. The plaintiffs, Tan Phu Cuong Investment LLC and Emilia
Shuparskaya, purchased the properties with the intent of developing them, but
standing water and soil-percolation issues dampened their plans. They sued King
County, advancing a host of claims under state and federal law. The district court
granted summary judgment against the plaintiffs on the two claims implicating
federal law: that the County, in channeling water onto the plaintiffs’ lots, effected
a taking in violation of the United States and Washington constitutions, U.S.
Const. art. 1, § 5; Wash. Const. art. 1, § 16, and that the County was violating its
stormwater obligations under the Clean Water Act, 33 U.S.C. §§ 1251-1388. The
court remanded the remaining claims to state court. We have jurisdiction under 28
U.S.C. § 1291 and, reviewing de novo, we affirm.
1. The plaintiffs did not suffer a physical taking because the pooling and
drainage issues predated their purchase of the properties. When the government
physically invades private property without compensation, it is the owner at the
time who acquires an inverse-condemnation claim. Palazzolo v. Rhode Island, 533
U.S. 606, 628 (2001) (citing Danforth v. United States, 308 U.S. 271, 284 (1939));
United States v. Dow, 357 U.S. 17, 22 (1958). The claim does not pass to
subsequent purchasers, Palazzolo, 533 U.S. at 628, who are presumed to have been
compensated for the invasion through a reduced purchase price, Wolfe v. State
2
Dep’t of Transp., 293 P.3d 1244, 1247 (Wash. Ct. App. 2013).
The record here confirms that any governmental intrusion occurred prior to
2015 and 2016, when the plaintiffs bought their lots. The County has historically
listed the lots as unbuildable in its public database, and the plaintiffs acquired them
for a price commensurate with that designation. One neighbor testified that water
had pooled on Shuparskaya’s lot for over twenty years. Another, a builder himself,
stated that soil conditions had impeded the lots’ development for the past fifty
years. In addition, a seller warned Tan Phu Cuong about the properties’ soil issues,
and Shuparskaya purchased her lot without any formal wetland or drainage
inspection. She conceded the possibility of water existing on her property “for
some time.” Thus, even assuming that a taking in fact occurred, it was past owners
rather than the plaintiffs who obtained a right to compensation.1 See Wolfe, 293
P.3d at 1246–48 (rejecting a takings claim where the plaintiffs failed to show “any
new governmental action” causing a further diminution in market value “since they
purchased the properties”).
1
The plaintiffs’ reliance on United States v. Dickinson, 331 U.S. 745 (1947),
is unavailing. There the Court held that, for statute-of-limitations purposes, “when
the Government . . . bring[s] about a taking by a continuing process of physical
events,” the cause of action does not arise “until the situation becomes stabilized.”
Id. at 749. The plaintiffs offer no support for their contention that, here, the
situation “stabilized” only after they bought the lots. By that point, as reflected in
the lots’ market values, the “consequences of inundation” had already “manifested
themselves.” See id.
3
2. Insofar as the plaintiffs assert that the County’s identification of wetlands
on their lots constituted a regulatory taking, this claim also fails.2 A regulatory
taking occurs when “government regulation of private property [is] . . . so onerous
that its effect is tantamount to a direct appropriation or ouster.” Lingle v. Chevron
U.S.A., Inc., 544 U.S. 528, 537 (2005). The inquiry turns primarily on “[t]he
economic impact of the regulation on the claimant and, particularly, the extent to
which the regulation has interfered with distinct investment-backed expectations.”
Id. at 538–39 (quoting Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124
(1978)). The plaintiffs do not discuss these factors and, in any case, have failed to
identify any economic injury attributable to the County’s regulation of their
properties. See Colony Cove Prop., LLC v. City of Carson, 888 F.3d 445, 452 (9th
Cir. 2018) (comparing “the value that has been taken from the property with the
value that remains in the property” and emphasizing that the plaintiff’s
expectations must be objectively reasonable (quoting Keystone Bituminous Coal
Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987)). Furthermore, the plaintiffs have
yet to seek available variances, rendering their regulatory-takings claim unripe.
2
The County urges us to deem this argument waived due to the plaintiffs’
failure to raise it below. The plaintiffs did assert a takings claim in their complaint,
however, so they are free to argue a regulatory taking on appeal. Cf. Yee v. City of
Escondido, 503 U.S. 519, 535 (1992) (“Having raised a taking claim in the state
courts, therefore, petitioners could have formulated any argument they liked in
support of that claim here.”).
4
See Lai v. City & Cty. of Honolulu, 841 F.2d 301, 303 (9th Cir. 1988).
3. Finally, the district court properly dismissed the plaintiffs’ Clean Water
Act claim. The Clean Water Act authorizes private citizens to sue to enforce its
provisions. 33 U.S.C. § 1365(a); Ctr. for Bio. Div. v. Marina Pt. Dev. Co., 566
F.3d 794, 799 (9th Cir. 2009). But before a citizen can file suit, he or she must
give notice to the alleged violator, as well as to federal and state enforcement
agencies. 33 U.S.C. § 1365(b)(1)(A). The requirement is jurisdictional; when a
party fails to give notice, the court must dismiss the claim. Ctr. for Bio. Div., 566
F.3d at 800. Although the plaintiffs undisputably failed to provide notice, they
protest that theirs is not truly a citizen suit. Their complaint, however, alleges
“Clean Water Act violations” and seeks an order requiring the County to comply
with applicable stormwater permits and regulations. It is hard to see this as
anything other than a Clean Water Act claim, and to the extent that it does not arise
under the citizen-suit provision, it is precluded by the Act’s broad remedial
scheme.3 See Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453
U.S. 1, 15–16 (1981) (rejecting the argument that the Clean Water Act’s savings
clause saves claims alleging substantive violations of “the very statute in which [it
is] contained”).
3
The plaintiffs’ state-law negligence claim, which also references the Clean
Water Act, is not properly before this Court because the district court remanded it,
and the County did not appeal that decision.
5
AFFIRMED.
6