The U.S. Ninth Circuit Court of Appeals will not reconsider a takings case involving a building moratorium in the Tahoe Basin. However, five Ninth Circuit judges did vote to hear the case of Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, 216, F3d., 764. (9th Cir. 2000), and Judge Alex Kozinski issued a blistering dissent in which he accused the three-judge panel that decided the case of ignoring takings precedent. "The panel does not like the Supreme Court's Takings Clause jurisprudence very much," Kozinski wrote. "Because we are not free to rewrite Supreme Court precedent, I urged the court to take this case en banc. By voting not to rehear, we have neglected our duty and passed the burden of correcting our mistake on to a higher authority." In June, a three-judge panel of the Ninth Circuit ruled that the Tahoe Regional Planning Agency (TRPA) was not liable for a takings when it imposed a 32-month building moratorium during the early 1980s while TRPA drafted a new regional plan (see CP&DR Legal Digest, July 2000). The panel ruled that property cannot be divided into separate pieces related to certain time frames, in this case the 32 months that the moratorium was in place. Writing for the unanimous panel, Judge Stephan Reinhardt called a temporary moratorium a "crucial planning mechanism." The decision was the fourth appellate court ruling in the long-running litigation, during which property owners have lost every claim at one point or another. Property owners asked for a hearing en banc. Only Kozinski and Judges Diarmuid O'Scannlain, Thomas Nelson, Stephen Trott and Andrew Kleinfeld voted to hear the case. All five signed the Kozinski's dissent. Kozinski accused the three-judge Tahoe-Sierra panel of reversing First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), the landmark case that establish the concept on "temporary takings." Kozinski said the panel adopted Justice John Paul Stevens's dissent in First English, in which he rejected the concept that property can be "taken" by imposition of a temporary land-use regulation. To emphasize his point, Kozinski cited similarities in Stevens's dissent and the opinion in this case. "Although claiming its opinion is fully consistent with First English, the panel plagiarizes Justice Stevens's dissent," he wrote. Kozinski continued, "In this case, a series of consecutive development moratoria has prevented the landowners from building any homes on their lots for the two decades since the start of this litigation. If a local government can evade its constitutional obligations by describing a regulation as ‘temporary,' we create a sizeable loophole in the Takings Clause." Kozinski also said the latest Tahoe decision conflicted with Lucas v. South Carolina Coastal Council, 505, U.S. 1003 (1992), in which the Supreme Court held that government regulation which prevents all economically beneficial uses of a property is a takings. "The only difference between this case and Lucas is that the regulation here had a finite duration," Kozinski wrote. And, he wrote, First English made clear that a temporary building moratorium is no different than a permanent ban. The case is Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, Nos. 99-15641, 99-15771. Kozinski's dissent, filed October 20, 2000, can be found at 2000 Daily Journal D.A.R. 11307.