Cite as: 533 U. S. 606 (2001)
Ginsburg, J., dissenting
state court. Here, however, the "fact" this Court has stopped the State from contesting—that the property has value of only $200,000—was never found by any court. That valuation was simply asserted, inaccurately, see infra this page and 654, in Palazzolo's petition for certiorari. This Court's waiver ruling thus amounts to an unsavory invitation to unscrupulous litigants: Change your theory and misrepre-sent the record in your petition for certiorari; if the respondent fails to note your machinations, you have created a different record on which this Court will review the case.
The Court bolsters its waiver finding by asserting that the $200,000 figure is "well founded" in the record. Ante, at 623. But, as earlier observed, an absence of multiple valuation possibilities in the record cannot be held against the State, for proof of more than the $200,000 development was unnecessary to defend against the Lucas claim singularly pleaded below. And in any event, the record does not warrant the Court's conclusion.
The Court acknowledges "testimony at trial suggesting the existence of an additional upland parcel elsewhere on the property" on which a second house might be built. Ante, at 623. The Court discounts that prospect, however, on the ground that development of the additional parcel would require a new road forbidden under CRMC's regulations. Ibid. Yet the one witness on whose testimony the Court relies, Steven M. Clarke, himself concluded that it would be "realistic to apply for" development at more than one location. Tr. 612 (June 25-26, 1997). Clarke added that a state official, Russell Chateauneuf, "gave [Clarke] supporting information saying that [multiple applications] made sense." Ibid. The conclusions of Clarke and Chateauneuf are confirmed by the testimony of CRMC's executive director, Grover Fugate, who agreed with Palazzolo's counsel during cross-examination that Palazzolo might be able to build "on two, perhaps three, perhaps four of the lots." Id., at 211 (June 20-23, 1997); see also Tr. of Oral Arg. 27 ("[T]here
653
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