NOT FOR PUBLICATION                           FILED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, 

, 628 (2001) (citing Danforth v. United States, 

, 284 (1939));

United States v. Dow, 

, 22 (1958). The claim does not pass to

subsequent purchasers, 

, who are presumed to have been

compensated for the invasion through a reduced purchase price, Wolfe v. State


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Dep’t of Transp., 

, 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 

–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, 

(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.”

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

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., 

, 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.”

(quoting Penn Cent. Transp. Co. v. City of N.Y., 

, 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, 

, 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, 

, 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, 

, 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, 

, 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., 

, 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. 

. 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, 

, 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.

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AFFIRMED.




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