A takings lawsuit by Lake Tahoe area property owners against the Tahoe Regional Planning Agency (TRPA) has been tossed out by the Ninth U.S. Circuit Court of Appeals because the court had already ruled on the matter. Since 1984, litigation filed by the property owners association, the Tahoe-Sierra Preservation Council, has resulted in 11 published opinions, including the latest one, which was the fifth ruling from the Ninth Circuit. The litigation has challenged in numerous ways a regional plan that TRPA adopted in 1984 and revised in 1987. "Although the Association attempts to frame its complaint in terms of new injuries caused by new acts, this action is in reality a prayer for relief from wrongs allegedly done by the Agency in connection with actions it took to implement the 1987 plan during the period from 1987 through 1991," Justice Stephen Reinhardt wrote for the unanimous three-judge panel. "We have addressed many of these allegations before." The court did leave the door open for a group of property owners regarding TRPA's application of the 1987 plan to their particular properties. The court held that those claims were not ripe because none of the property owners had submitted an application for development under the plan. Spurred by Lake Tahoe's diminishing clarity and evidence that development was causing the environmental degradation, TRPA adopted a regional plan in 1984. But the plan lasted barely two months before a federal court blocked its implementation at the State of California's request. In 1987, TRPA adopted a revised plan. The plan established an Individual Parcel Evaluation System (IPES) that was intended to rate the suitability of parcels for development. Parcels with an IPES rating above a certain level were eligible for one of 300 annual building permits. In 1989, TRPA implemented the ranking system, requiring an IPES score of 725 for a parcel's development. The system essentially banned development on parcels in riparian areas known as Stream Environment Zones. In 1999, TRPA lowered the IPES threshold in Nevada's Washoe and Douglas counties because 80% of the sensitive parcels in those counties had been permanently protected from development — a 1987 plan requirement for adjusting the IPES figure. The agency maintained the IPES figure at 725 in California because less than 80% of sensitive parcels had been permanently protected. In January 2000, the Preservation Council and 252 individual members sued over TRPA's decision to maintain the IPES threshold in California at its original level. The landowners argued that TRPA's regulatory scheme was a categorical taking that did not advance a legitimate state interest. They contended that TRPA's decision to lower the IPES threshold in Nevada but not California was a denial of equal protection. The landowners further challenged the practice that allowed property owners who scored within 10% of the IPES line to become eligible for a building permit if they provided mitigations or paid a mitigation fee. U.S. District Court Judge Lawrence Karlton divided the landowners into three categories: those in a Stream Environment Zone (SEZ), those ranked well below the IPES line, and the "10% plaintiffs." With regard to the takings allegations, Judge Karlton ruled that the statute of limitations for the SEZ property owners began to run in 1989, when TRPA notified them that their land could not be developed. The statute of limitations for those below the IPES line began to run in 1990, when TRPA fully implemented the system. Those statutes of limitations had long since expired, and nothing TRPA did during 1999 triggered them anew, Karlton ruled. An "as applied" challenge of the 1987 plan by the 10% plaintiffs was not ripe because no one had attempted to use the system, he ruled. As for the equal protection claim, Karlton ruled the lawsuit was too late because the statute of limitations began to run in 1987 when TRPA adopted the revised plan. The Preservation Council appealed. The Ninth Circuit upheld Karlton's ruling in its entirety, but on a different basis. The appellate panel ruled that all claims except those of the 10% plaintiffs were barred by the doctrine of res judicata, which means that the matter has already been decided. According to the court, res judicata depends on three things: similar claims arising from "the same transactional nucleus of facts," a final judgment on the merits, and the same parties. The latest Tahoe lawsuit passed the three-part test, the court ruled. First, the court ruled, the claims asserted in the present case came from the same transactional nucleus of facts that gave rise to two earlier rounds of litigation. "[N]o action by the Board in 1999 was even colorably inconsistent with the understanding that the Association should have had in 1990 as to how the system would function," Justice Reinhardt wrote. "Indeed, in its 1991 complaints, the Association protested both the enactment of the 1987 plan and its implementation." Second, those claims were resolved by the district court, which held that they were barred by the statute of limitations. The Ninth Circuit upheld the decision in Tahoe IV Appeal, 216 F3d 764 (see CP&DR Legal Digest, July 2000). Third, the court ruled, the parties in this suit and the previously resolved case were the same. The Preservation Council has been the lead plaintiff in all of the litigation, and every individual plaintiff in the case at hand is a member of the organization. Further, 36 individual plaintiffs in the current case were also named plaintiffs in the earlier rounds, the court determined. As for the 10% plaintiffs, the court deemed their claims were not ripe for a decision because none of the plaintiffs had pursued the mitigation program. The court sited the U.S. Supreme Court's decision in Suitum v. TRPA, 520 U.S. 725 (see CP&DR Legal Digest, June 1997). "[T]he Supreme Court clearly explained that a regulatory takings claim is only ripe if the plaintiff ‘demonstrates that she has both received a "final decision regarding the application of the challenged regulations to the property at issue" from "the government entity charged with implementing the regulations" and sought "compensation through the procedures the State has provided for doing so,"'" Reinhardt wrote. "The 10% Plaintiffs have not satisfied the first requirement." The Case: Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, No. 00-16660, 03 C.D.O.S. 1736, 2003 DJDAR 2257. Filed February 28, 2003. The Lawyers: For Tahoe-Sierra Preservation Council: Lawrence Hoffman, (530) 583-8542. For TRPA: E. Clement Shute, Shute, Mihaly & Weinberger, (415) 552-7272.