Petition — California Tahoe Regional Planning Agency v. Jennings
Supreme Court brief1979
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IN THE Ne :
SUPREME COURT OF THE UNITED-STATES””'\ ’
CCTOBER TERM 1979
No. 9-15
CALIFORNIA TAHOE REGIONAL PLANNING
AGENCY, a Political Subdivision of the State of
California, PEOPLE OF THE STATE OF
CALIFORNIA, LEAGUE TO SAVE LAKE
TAHOE, and SIERRA CLUB,
74)
Petitioners,
Vv.
TED JENNINGS, OLIVER KAHLE, HARVEY'S
WAGON WHEEL, INC., and COUNTY OF
ee gia a Political Subdivision of the State of
evada
1
Respondents.
4
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
E. ROBERT WRIGHT
Office of the Attorney General
555 Capitol Mall, Suite 350
Sacramento, California 95814
Telephone: (916) 445-3323
Attorney for Petitioners
GEORGE DEUKMEJIAN, California Tahoe Regional
Attorney General of the Planning Agency, and People of
State of California the State of California
ROBERT HARVEY CONNETT
and E. CLEMENT SHUTE, JR., LAURENS H. SILVER
Assistant Attorneys SIERRA CLUB LEGAL DEFENSE FUND, INC.
General, Of Counsel 311 California Street, Suite 311
San Francisco, California 94104
Telephone: (415) 398-1411
Attorney for Petitioners
League to Save Lake Tahoe,
and Sierra Club
Bupreme Court, U.S
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TABLE OF CONTENTS
OPINIONS BELOW ceisscssssssssscseseesecsscascsesscesssccccsssessssvosssessscessess
FU TIBI Re BERIIN sescccsssesressrsvsssonssecsnssosecsvseqscssesscssasssconseossssosesescessess
QUESTIONS PRESENTED. .......:cssssssssssossssssessssscssensereneesesees
STATUTES INVOLVED ossssscssssssssssessessssessseseensesssscsseneeneeees
STATEMENT OF THE CASE ...isssssesssesssseecssesesseseessneees
REASONS FOR GRANTING THE WRIT... ccccesseseseseenees
Il.
Ill.
IV.
THE COURT OF APPEAL’S DECISION POSES
CRITICAL ISSUES CONCERNING OBLIGA-
TIONS BETWEEN STATES ARISING BOTH
FROM INTERSTATE COMPACT AND FEDERAL
COMMON LAW iscsssssscsoscossssssscesscssssesesssssssessesorssonssesooecs
BY FAILING TO REVIEW THE ABSENCE AND
ADEQUACY OF THE “FINDINGS” MADE BY
THE APPROVING AUTHORITY, THE COURT OF
APPEAL’S DECISION RELEGATES CRITICAL
ISSUES TO POTENTIALLY CONFLICTING IN-
TERPRETATIONS BY DIFFERENT STATES,
AND IGNORES THE PRINCIPLES WHICH SUG-
GEST REQUIRING REASONED FINDINGS TO
SUSTAIN ADJUDICATORY DECISIONS UNDER
INTERSTATE REGULATIONS.......ccccsssessesesseseseees
A. Interpretation of the TRPA Compact and Ordi-
B. Applicable Federal Principles...
THE COURT OF APPEALS ERRED IN HOLDING
THAT THIS FEDERAL ACTION IS BARRED BY
THE NEVADA 25-DAY STATUTE OF LIMITA-
THE COURT OF APPEALS ERRED IN HOLDING
THAT BECAUSE THE ALLEGED NUISANCE IS
ANTICIPATORY AND WAS APPROVED PURSU-
ANT TO COMPACT, A STATE’S FEDERAL COM-
MON LAW NUISANCE CLAIM MAY BE
DISMISSED ON THE PLEADING. .......ccccesssesseseens
CONCLUSION screcossscessecsssccssscscsesencscesscecscsessssesevecsscensssvesssesesecesses
a nee tne
l
12
15
21
32
ii
APPENDICES wnccscscssssssssssesssssosscsecsssscsssecessecncsnssssesessssscesesancanseosees
APPENDIX A (Court of Appeals Opinion) ........00000
APPENDIX B (Order Denying Rehearing)................
APPENDIX C (District Court Opinion) «00s
APPENDIX D (Tahoe Regional Planning Compact)
APPENDIX E (Tahoe Regional Planning Land Use
CPAMANOS) cricsrccrecsssscsesesviirsesooesccesvcccsesveeee
APPENDIX F (Douglas County Approvals) ..........00
APPENDIX G (Nevada Procedural Statutes) ..............
APPENDIX H (Seventh Circuit Opinion) ........0.000008
a AT ee —
ene.
TABLE OF AUTHORITIES iii
CASES
Page
American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974) 26
Ashland Oil, Inc. v. Phillips Petroleum Company, 554 F 2d 381 (10th
Cir. 1975), cert , 434 US. 921 26
Burlington Truck Lines v. U.S. 371 U.S. 156 (1962) =.
0
25
22
Burnett v. New York Central R. Co., 380 U.S. 424 (1965)...
Conley v. Gibson, 355 U.S. 41 (1957)
ki v. The Hoegh Silvercloud, 351 U.S. 525 (1956)...
Dunlop v. Bachowski, 421 U.S. 560 (1975)
Dyer v. Sims, 341 U.S. 22 (1951) 14, 16, 17, 25, 26, 31
Eastlake Community Council v. Roanoke Assoc., Inc., 513 P.2d 3%
(Wash. 1973) 26
Florida v. United States, 282 U.S. 194 (1931) 22
Georgia v. Tennessee Copper Co., 206 U.S. 200 (1907) ........ enteittleetin 31
Gulf States Utilities Co. v. FPC, 411 U.S. 747 (1973) sssssssssssseose 19
Hinderlider v. La Plata Co., W4 U.S. 92 (1938) 14, 31
Holmberg v. Armbrecht, 327 U.S. 392 (1946) 26
Illinois v. City of Milwaukee, _. F 24 _. (No. 77-2246, April 26,
1979) 14, 27
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) 27, 31
Jacobson v. Tahoe Regional Planning Agcy., 566 F 2d 1353 (9th Cir.
1977), rev'd, sub nom. Lake Country Estates, Inc. v. Tahoe Re-
gional Planning Agency, _. U.S. __, 59 L.Ed.2d 401 (1979) .. 19
Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, wt.
US. —_, 59 L.Ed.2d 401 (1979) 5, 21
League to to Save Lake Tahoe v. B,J.K. Corp., 547 F.2d 1072 (9th Cir.
) 15
emer Tahoe v. Tahoe Reg. Pl., 563 P.2d 582 (Nev.
1 ele 8, 25
Lamune eT cian 88 A.2d 337 (N,J. 1952) ..rcsssssssses 18
Marlatt v. Silk, 36 U.S. (11 Pet.) 1 (1837) 16, 17
Missouri v. Illinois & Chicago District, 180 U.S. 208 (1901) shpicediibinin 29
Morgan v. United States, 298 U.S. 468 (1936) 19, 22
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) ..scccsssssssssesssses 26
People of St. of Cal. ex rel. Younger v. Tahoe Reg. P. Ag., 516 F 2d
215 (9th Cir. 1975), cert denied, 423 U.S. 868 (1975) .......sc.ss0 8, 23
Petty v. Tennessee-Missouri Comm'n, 389 US. 275 (1959)... 14, 16
Schaffer Transp. Co. v. U.S., 355 U.S. 83 (1957) wossscssssssessssssssseesssnseeeee 22
SE.C. v. Chenery Corp., 318 U.S. 80 (1943) a 21
Southern Pacific Co. v. Bogert, 250 U.S. 483 (1919) ..ccccsssscsssseesssseee 26
iv TABLE OF AUTHORITIES
Topanga Assn. for a Scenic Community v. County of Los Angeles, \1
Cal.3d 506; 522 P.2d 12 (1974)
United States v. El Paso Gas Co., 316 U.S. 651 (1964) 10
United States v. Florida East Coast R. Co., 410 US. a6 (1973) 21, 22
US. v. Pierce Auto Lines, 327 U.S. 515 (1946) 22
Washington v. General Motors Corp., 406 U.S. 109 (1972)... 30
Wichita RR. v. Pub. Util. Comm., 260 U.S. 48 (1922) 22
STATUTES
California Code of Civil Procedure
§ 343 25
Nevada Revised Statutes
Ch.: 11.220 25
Ch. 277.207 5, 25
Ch. 278.020 24
Ch. 278.027 4, 5, 8, 10, 11, 24
Ch. 278.315 24
Ch. 278.317 24
United States Code
28 U.S.C. § 1254(1) 2
28 U.S.C. § 1331 (a) . 9, 11, 15, 27
28 U.S.C. § 2201
CONSTITUTION
United States Constitution, Article I, Section 10, Clause 3 ................ 4
INTERSTATE COMPACTS —
Bi-State Development Agency Compact, Act of August 31, 1950, Ch.
829, 64 Stat. 568 13
— River Compact, Act of December 21, 1928, Ch. 42, 45 Stat.
13
Great Lakes Basin Compact, Act of July 24, 1968, Pub.L. No. 90-419,
82 Stat. 414 13
Potomac River Compact of 1958, ‘Act of October 10, 1962, Pub.L. No.
87-783, 76 Stat. 797 13
Tahoe Regional Planning Agency Agency Compact, Pub.L. 91-148, 83 Stat.
360 (1969) ; California Govt. Code §§ 66800-66801; Nevada Revised
— §§ 277. 190-277.200 (1973) 4
Art. I 5
Art. I(b) , 18
Art. I(c) . 18
TABLE OF AUTHORITIES Vv
Page
RETESET EE: 2S 9 5S a oO 8
Art. V(b) (1) . 6
Art. VI(a) 6, 18
Art. VI(b) 9
Art. VI(k) +
Art. VIII (a) 18
4
:
Council of State Governments, Interstate Compacts, 1783-1970 (A
Compilation) (1971) 12
cil of State Governments, Interstate Compacts, 1783-1977 (A
Revised Compilation) (1977) ssccissssscsssesststseustsessensesneeeee 12
2 Davis, Administrative Law Treatise (1976 Supp.)
§ 16.00-2, at p. 385 22
Oe EO Sie ihasicdinnsettapssenasirsntcianionnpeicsninyeemoeseenesint 22
, “Construction of Interstate Compacts: A Questionable
Federal Question”, 51 Va.L.Rev. 987 (1965) 12
Frankfurter & Landis, “The Compact Clause of the Constitution—A
Study in Interstate Adjustments”, 34 Yale L.J. 685 (1925) ........... 14
tag Court Rule 19.1 (b) 15
oe Regional Planning Agency Land Use Ordinance (1972)
ght te Cae Ria il RS 3 RR 6, 19
§ 2.20 18
§3. > 17
Oe St 6, 19
EES NTN ORE ei ae 19
TI shiiasicsinssininiensencniesabdisaninensia passim
(ae ae
EES OS PRR 29
yD aes celacpsnilanactee cilechenjeinh id ns chance slahecltinaesensitesteghatinsnntinieipinindiite passim
oe. pe
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1979
No.
CALIFORNIA TAHOE REGIONAL
PLANNING AGENCY, a Political
Subdivision of the State of California,
PEOPLE OF THE STATE OF
CALIFORNIA, LEAGUE TO SAVE LAKE
TAHOE, and SIERRA CLUB,
Petitioners, \
V.
TED JENNINGS, OLIVER KAHLE,
HARVEY’S WAGON WHEEL, INC., and
COUNTY OF DOUGLAS, a Political
Subdivision of the State of Nevada,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioners, California Tahoe Regional Planning
Agency, People of the State of California, League to
Save Lake Tahoe, and Sierra Club respectfully pray that
a Writ of Certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Ninth Circuit entered in this proceeding on February
oe
15, 1979. That judgment and opinion affirmed a judg-
ment and opinion entered by the United States District
Court for the District of Nevada, dismissing petitioners’
complaint, and denying petitioners’ motions for prelimi-
nary injunction and summary judgment.
OPINIONS BELOW
The opinion of the Court of Appeals of which petition-
ers seek review is reported at 594 F.2d 181; a copy is
appended hereto as Appendix A. The court’s order of
April 16, 1979 denying petitioners’ petition for rehearing
is unreported; a copy is appended as Appendix B. The
district court’s opinion is unreported; a copy is append-
ed as Appendix C.
JURISDICTION
The Court of Appeals’ judgment was entered on Feb-
ruary 15, 1979. A petition for rehearing was denied on
April 16, 1979 (App. B). This petition is being filed with-
in 90 days of said date. This court has jurisdiction to
review the judgment in question by writ of certiorari
pursuant to 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. This is an action to enjoin the development of three
large hotel-casinos together with massive parking gar-
ages, located immediately across the state line, at Lake
Tahoe in Nevada. Under the compact between Califor-
nia and Nevada approved by Congress, the Tahoe Re-
gional Planning Agency (TRPA), adopted a regional
plan and land use ordinance to protect the fragile ecol-
ro oo
ogy of the Lake Tahoe Basin from excessive and inap-
propriate development. Petitioners alleged that the
projects, ranging in height from 100 to 193 feet, are in
violation of several sections of the TRPA Land Use Ordi-
nance, including a section limiting height to 40 feet un-
less the approving agency “determines” that greater
project height will better promote the protection of the
environment, and another section prohibiting approval
unless it is “found” that there will not be any substantial
environmental harm as a result of the development.
Though the Court of Appeals determined that two of
the projects were approved based on “findings” merely
reiterating the language in the ordinance, and that in
the case of the other project, no “findings” were made
at all, it held that the questions of whether reasoned
findings and substantial evidence supporting the ap-
provals are required, are issues of law of each party-state
to the compact, rather than ones of interpretation of the
interstate compact and ordinance.
A. When a regulation adopted by a compact-creat-
ed interstate agency requires local agencies acting
pursuant to delegated powers as permit-issuing au-
thorities to “find” and “determine” specified facts
prior to making adjudicatory approvals in the inter-
state region, are the adequacy of the findings and
supporting evidence and the legal effect of the ab-
sence of findings independently determined by the
law. of each party state or instead determined by
uniform interpretation of the interstate regulation?
B. Are reasoned findings ard substantial evidence
required to sustain such adjudicatory approvals?
C. Is an action in federal court, challenging the
pny vee
adequacy and absence of findings and evidence to
sustain such adjudicatory approvals barred by a 25-
day statute of limitations of one party-state, Nev.
Rev. Stat. Ch. 278.027?
2. Petitioners also alleged that the development of
the projects would have massive adverse impacts on the
Lake Tahoe Basin shared by California and Nevada, suf-
ficient to cause an interstate nuisance enjoinable under
federal common law. The Court of Appeals held, inter-
preting the express language of the compact, that the
compact by its own terms preserves the federal common
law nuisance remedy. Nevertheless, the court in affirm-
ing the dismissal on the pleading, held that equitable
relief may not be sought when the alleged nuisance has
been approved pursuant to a compact, and is prospec-
tive.
A. Does an interstate compact which preserves
the federal common law nuisance remedy never-
theless preclude consideration of a claim for equita-
ble relief to enjoin a prospective nuisance which has
received a permit under the regulatory program
created by the compact?
STATUTES INVOLVED
The statutes involved are these:
1. Article I, Section 10, Clause 3 of the Constitution of
the United States, providing: “No State shall, without
the consent of Congress. . . enter into any agreement
or compact with another State . . .”
2. The Tahoe Regional Planning Agency Compact,
Pub.L. 91-148, 83 Stat. 360 (1969); California Govt. Code
—5—
§§ 66800-66801; Nevada Revised Statutes ‘hereinafter
NRS) Chs. 277.190-277.200 (1973). The text of the com-
pact, contained in Pub.L. 91-148, is set out verbatim in
Appendix D.
3. The Tahoe Regional Planning Agency Land Use
Ordinance. The ordinance is part of the record, and is
set out verbatim in Appendix E.
4. Nevada Revised Statutes, Chs. 278.027 and 277.207,
are set out verbatim in Appendix G.
STATEMENT OF THE CASE
In 1968, California and Nevada entered into a compact
(App. D), to create an agency to regulate and control
development in the Lake Tahoe Basin, for the purpose
of exercising effective environmental controls to pre-
vent further de :rioration of the region. (Compact Arti-
cle I). On December 18, 1969, Congress approved the
compact, adding Sections 2 through 7.
The reason for the legislative concern is that Lake
Tahoe’s scenic beauty, pristine clarity, and size is
matched by only two other lakes in the entire world—
Crater Lake in Oregon and Lake Baikal in the Soviet
Union. See, Lake Country Estates, Inc. v. Tahoe Re-
gional Planning Agency, __— U. S. ___, 59 L.Ed.2d 401,
405, n. 2 (1979).
The compact created an interstate agency, the Tahoe
Regional Planning Agency, and required it to adopt a
regional plan governing, inter alia, the uses of land, air,
space, and other resources within the region, including
“an indication or allocation of maximum population
eh Tene
densities.” (Compact, Article V(b) (1) ). The TRPA was
also required by the compact to adopt ordinances imple-
menting the regional plan through regionally enforcea-
ble minimum standards, including zoning and air
pollution regulations. (Compact, Article VI (a) ).
The TRPA adopted its regional plan on December 22,
1971, and adopted its land use ordinance (LUO) (App.
E) on February 10, 1972.
The ordinance explicitly requires compliance with its
land use, land coverage, and height standards, as well as
its other sections. LUO §§ 2.10, 4.21. These other sections
include 8.33 which provides that it must be “found” as
a condition of approval that the proposed development
will not cause any substantial harmful environmental
consequences. Additionally, Section 7.13 limits building
height to 40 feet unless the permit-issuing authority “de-
termines” that a greater height will better promote the
protection of the environment. The ordinance delegates
the initial adjudicatory decision-making authority to the
appropriate county in the first instance, subject to re-
view by the TRPA.
Respondents Jennings, Kahle, and Harvey’s own par-
cels of land within Douglas County, and within TRPA’s
jurisdiction. Douglas County, Nevada exercised its
delegated authority under the ordinance to approve
each of the hotel-casinos proposed by the respective
Petitioners seek no review or relief against Park Cattle Co., a
defendant below. The state plaintiffs had abandoned their ap-
es: against Park in the Ninth Circuit. Unlike the three other
andowners, Park obtained a building permit and has construct-
ed its building.
a, om
respondents. The heights of the proposed projects range
from 100 feet to 193 feet, the number of hotel rooms
from 446 to $60. The respective projects would include
parking structures housing from 1490 to 2850 cars, would
include show rooms, and gaming areas ranging from
32,350 to 50,000 square feet. The number of employees
_ of each establishment would range from 1400 to 2575.
The proposed developments are each approximately 20
acres in size.
The Harvey’s property abuts the California stateline;
the Jennings and Kahle properties are less than one mile
from California.
The approval by Douglas County of the Hotel Oliver
(Kahle) occurred on April 24, 1973; the approval of the
Tahoe Palace Hotel (Jennings) occurred on May 7, 1973;
and the approval of Harvey’s occurred on June 20, 1973.
In approving the Jennings and Kahle projects, the
Douglas County Commissioners simply adopted resolu-
tions furnished by the developers’ representatives re-
peating verbatim the language of ordinance sections
7.13 and 8.33. With respect to the project of Harvey’s, no
“findings” relating to sections 7.13 and 8.33 were made
at all. The Douglas County minutes reflecting the ap-
provals are appended in Appendix F.
After the Douglas County approvals, the TRPA staff
reviewed the projects and recommended that because
of too intensive use of the sites, generation of excessive
traffic, and excessive height, each project should be
disapproved by TRPA. (Record, P1. exh. 2 doc. 16, exh.
3 doc. 20, exh. 4 doc. 13). However, on July 25, 1973, a
— nN
TRPA motion to approve the Harvey’s project failed by
a 6-4 vote in favor of the project, a majority of the Cali-
fornia delegation voting against. The project was there-
fore “deemed approved”, pursuant to Articles III and
VI(k) of the Compact. On July 25, 1974, the TRPA voted
7-3 to deny the projects of Jennings and Kahle, but un-
der the default voting rules, a default approval occurred
because the 3 votes to approve constituted a majority of
the five Nevada members. People of St. of Cal. ex rel.
Younger v. Tahoe Reg. P. Ag., 516 F.2d 215 (9th Cir.
1975), cert. denied, 423 U.S. 868 (1975) .?
On August 16, 1974, petitioner League to Save Lake
Tahoe filed suit in a Nevada state court (Douglas County
Action No. 6566) against respondents, alleging that the
approvals of the projects by Douglas County were in
violation, inter alia, of sections 7.13 and 8.33 of the ordi-
nance. (Record, Def. exh. 38). The case, though timely
filed, was dismissed for failure to meet a corporate filing
requirement. The merits of that case were never
reached, and the application of petitioner California
Tahoe Regional Planning Agency to file an amicus
curiae brief in support of the League to Save Lake
Tahoe was denied for that reason. (Record, Clerk’s tr. at
p. 259). The procedural dismissal was affirmed by the
Nevada Supreme Court, which held that refiling was
now barred by a Nevada 25-day limitation statute, Nev.
Rev. Stat., Ch. 278.027. League to Save Lake Tahoe v.
Tahoe Reg. Pi., 563 P.2d 582 (Nev. 1977).
2In Younger, the Ninth Circuit held that there was no final TRPA
action in this situation.
ar ea
Following the May 1977 affirmance by the Nevada
Supreme Court, petitioners, on August 12, 1977, filed
complaints in the United States District Court for Ne-
vada against respondents.* Petitioners alleged that the
approvals of respondents’ projects were in violation of
sections 7.13 and 8.33 of the ordinance and that the ap-
provals were not supported by either legally sufficient
findings or substantial evidence. California additionally
alleged that the adverse environmental impacts in Cali-
fornia of the Nevada projects when completed, includ-
ing the large volume of generated vehicular traffic,
would be so massive as to constitute an interstate nui-
sance enjoinable under federal common law. The com-
plaint alleged that both air pollution and its adverse
effects are aggravated by altitude (Lake Tahoe is over
6,000 feet in elevation) and that existing violations of
federal and state ambient air quality standards would be
exacerbated and additional violations would occur as a
result of development of each p.<‘ect. Petitioners
sought injunctive and declaratory relief. jurisdiction of
the District Court was invoked pursuant to Pub.L. 91-
148, 83 Stat. 360 (Compact, Article VI(b)), 28 U.S.C.
§ 1331 (a), as well as 28 U.S.C. § 2201.
Petitioners also filed motions for preliminary injunc-
tion and summary judgment pertaining to the ordi-
nance violation claim. Respondents filed motions to
dismiss the actions, and opposition to petitioners’ mo-
3 California and the CTRPA were the plaintiffs in one case and the
a to Save Lake Tahoe and Sierra Club were the plaintiffs
in the other case. The actions were heard together.
oan Wi
tions for preliminary injunction and summary judg-
ment. The State of Nevada originally intervened in the
action on the side of respondents, but then obtained
modification of its status to amicus curiae, to avoid bring-
ing the case within the exclusive jurisdiction of the Su-
preme Court. Nevada opposed California, and
supported respondents. (Record, Clerk’s tr. at 576; Re-
porter’s tr. at p. 239-40).
After argument and introduction of affidavits and
documents (but no oral testimony) by each side, the
district court, on October 20, 1977, announced its opin-
ion orally (App. C), dismissing the actions and denying
petitioners’ motions for preliminary injunction and sum-
mary judgment. The court held on the merits that re-
spondents’ projects were not barred by the height
constraints in section 7.13 of the ordinance. The court
also held that the actions were barred by the Nevada
limitation statute (NRS, Ch. 278.027), and by laches. The
court gave no reason for dismissing, on the pleading, the
interstate nuisance cause of action. On October 31, 1977,
the court entered judgments in favor of respondents and
signed findings and conclusions (App. C) prepared by
respondents’ counsel without change, and in the ab-
sence of advance service of the documents on counsel
for petitioners.‘
Petitioners in both cases appealed to the Ninth Circuit
Court of Appeals. The appeals were consolidated and
* This Court has noted that such counsel-prepared findings furnish
little assistance to a reviewing court. See, United St.
Gas Co, 316 US, 631, 656, m4 (1964)
ett ia
expedited. On September 5, 1978, the Ninth Circuit
granted an injunction preventing Harvey’s from com-
mencing construction of its parking garage.
In its opinion of February 15, 1979, the Court of Ap-
peals conceded the absence of findings (App. A, p. 7),
but held that the issues of whether findings and substan-
tial evidence are required to support issuance of an ad-
ministrative permit by a local permit-issuing authority
are left to the law of each state (App. A, at p. 18, 28, n.
10), and therefore resolution of the issues is barred by
the 25-day limitation in NRS, Ch. 278.027. After first de-
termining that petitioners’ claims seeking interpreta-
tion of the height limitation imposed by §7.13 were
federal questions within the meaning of 28 U.S.C.
§ 1331 (a), and after holding sub silentio that petitioners’
claims concerning § 7.13 were not barred by any applica-
ble statute of limitations, the court construed § 7.13 of
the ordinance. The court held that § 7.13 does not re-
quire that significant height departures be approved
only in accordance with the principles that govern the
granting of a variance from zoning regulations (App. A,
p. 11).
The court also held that the federal common law nui-
sance claim was properly dismissed. Though the court
interpreted Section 5 of the compact not to preclude the
application of federal common law nuisance doctrine in
the Lake Tahoe Basin (App. A., p. 22), it held that the
presence of the compact approval mechanism “affected
the viability” of an anticipatory federal common law
nuisance action, and affirmed the dismissal on the plead-
2—79307
a= 19 am
ing. (App. A, p. 22, pp. 24, 29, n. 15). The court affirmed
the judgment of the district court and lifted its injunc-
tion restraining Harvey’s from commencing construc-
tion.
Petitioners filed petitions for rehearing. The petitions
for rehearing were denied on April 16, 1979. (App. B).
Respondents have not obtained building permits and
have not commenced construction of the proposed
buildings. (Record, P1. exh. 6 docs. J, K and L).°
REASONS FOR GRANTING THE WRIT
|. THE COURT OF APPEAL’S DECISION POSES CRITICAL
ISSUES CONCERNING OBLIGATIONS BETWEEN
STATES ARISING BOTH FROM INTERSTATE COMPACT
AND FEDERAL COMMON LAW.
“During recent years, the interstate compact has
become an increasingly prominent device for the solu-
tion of governmental problems not confined to a single
state.” Engdahl, “Construction of Interstate Compacts:
A Questionable Federal Question,”, 51 Va.L.Rev. 987,
988 (1965).
More than 70 of the 175 compacts now in effect have
created administering boards, commissions, and agen-
cies.* More agencies would be created by compacts pres-
* Jennings and Kahle did obtain Douglas Coun ading permits,
issued illegally—prior to TRPA review in 197 Cacians also ob-
tained a “foundation” permit containing a waiver of responsibili-
ty by Douglas County in 1975. Harvey’s obtained building
permits for internal modifications to exis structures not rele-
vant here, and a “foundation onl see in 1977 for ae
garage (the subject of the Nin ircuit restraining order).
® See generally, Council of State Governments, Interstate Com-
cts, 1783-1977 (A Revised Compilation) (1877); Council of
om ye Interstate Compacts, 1783-1970 (A Compila-
tion a
as 13 —
ently under consideration. There is not one state in the
entire nation which is a party to fewer than 12 compacts.
Interstate agencies are important, active, and make
decisions affecting millions of Americans. As examples,
interstate agencies regulate the environmental quality
in the Great Lakes area’, conserve fishing resources of
the Potumac River *, control development of the St.
Louis metropolitan area *, and apportion waters of the
Colorado River.'°®
The Court of Appeals has held in this case that ad-
judicatory decisions having broad regional implications,
rendered pursuant to powers delegated by interstate
compacts and regulations, are not subject to uniform
judicial review within the region governed by a com-
pact. By requiring judicial review pursuant to state law
of critical aspects of the administrative process, the deci-
sion ignores the elementary principle that the actions of
local agencies, acting pursuant to powers delegated un-
der a compact by an interstate agency, should be meas-
ured against the same basic legal standards with respect
to fundamental administrative law issues. Otherwise,
findings may be required in one state but not in another
state, to sustain decisions under a common regulation.
The decision also ignores the fact that the very essence
. _ yy Basin Compact, Act of July 24, 1968, Pub.L. No. 90-419,
tat. 414.
® Potomac River Compact of 1958, Act of October 10, 1962, Pub.L.
No. 87-783, 76 Stat. 797.
® Bistate Development Agency Compact, Act of August 31, 1950,
Ch. 829, 64 Stat. 568.
se sory aaa Compact, Act of December 21, 1928, Ch. 42, 45
tat. 1057.
a
of a compact intended to protect natural resources is to
ensure that “vigilance by one state” is not “thwarted by
inaction, or lax administration, in an adjoining state.”
Frankfurter & Landis, “The Compact Clause of the Con-
stitution—A Study in Interstate Adjustments”, 34 Yale
LJ. 685, 699 (1925).
This petition also seeks review of the Court of Ap-
peal’s decision affirming the dismissal of the state peti- -
tioner’s interstate nuisance claim on the pleading, on
the ground that the federal common law does not pro-
vide a remedy for an anticipatory nuisance arising from
an activity approved pursuant to an interstate compact.
The decision is in conflict with the Seventh Circuit’s
recent decision in J/linois v. City of Milwaukee, ——
F.2d ___._ (No. 77-2246, April 26, 1979), holding that
when previously existing rights are preserved pursuant
to federal legislation, “the federal common law of nui-
sance provides a peculiarly appropriate remedy”, when
neighboring states allege “that the requirements im-
posed pursuant to federal statute are inadequate to pro-
tect their interests.” The Seventh Circuit decision is
appended in Appendix H.
A key function of this Court is “to determine the na-
ture and scope of obligations as between States, whether
they arise through the legislative means of compact or
the ‘federal common law’ governing interstate contro-
versies.” Dyer v. Sims, 341 U.S. 22, 28 (1951). Review of
questions arising in such contexts is appropriate by certi-
orari. Petty v. Tennessee-Missouri Comm'n, 359 U.S. 275,
278 (1959); Hinderlider v. La Plata Co., 304 U.S. 92, 101,
— on
110, (1938).
The Court of Appeals has clearly decided important
questions of federal law, discussed infra, which have not
been, but should be, decided by this Court. Supreme
Court Rule 19.1(b).
ll. BY FAILING TO REVIEW THE ABSENCE AND ADEQUACY
OF THE “FINDINGS” MADE BY THE APPROVING AU-
THORITY, THE COURT OF APPEALS RELEGATES CRITI-
CAL ISSUES TO POTENTIALLY CONFLICTING
INTERPRETATIONS BY DIFFERENT STATES, AND IG-
NORES THE PRINCIPLES WHICH SUGGEST REQUIRING
REASONED FINDINGS TO SUSTAIN ADJUDICATORY
DECISIONS UNDER INTERSTATE REGULATIONS.
This Court has never decided whether judicial review
of administrative decisions made pursuant to an inter-
state regulation must take place pursuant to “federal” or
uniform law, or in the alternative is left to the separate,
independent, and often conflicting rules of the party-
states.
Assigning to the courts of the individual signatory
states the power to determine, as a matter of state law,
whether findings are required under interstate regula-
tions, the adequacy of findings, and the quantum of evi-
dence necessary to sustain such findings poses grave
difficulties for the functioning of interstate regulatory
programs.'! Yet this is exactly what the Court of Appeals
‘! No doubt, this is why the Ninth Circuit previously held that
questions concerning the ae and application of TRPA
ordinances ordinaril ily present federal — under 28 U.S.C.
oar (a). See, League to Save Lake Tahoe v. B.J.K. Corp., 547
.2d 1072 (9th Cir. 1976).
= 16 —
has done.
This Court has already held that the rules applicable
in compact cases are of an “international” character, not
left to the party-states. Petty v. Tennessee-Missouri
Comm'n, 359 U.S. 275, 280-81 (1959); Dyer v. Sims, 341
U.S. 22, 28-31 (1951); Marlatt v. Silk, 36 U.S. (11 Pet.) 1,
22-23 (1837).
In Dyer v. Sims, 341 U.S. 22 (1951), the Court reversed
a state court decision which had held that state legisla-
tion authorizing participation in a compact was in viola-
tion of the State Constitution. The Court said:
“But a compact is after all a legal document.
Though the circumstances of its drafting are likely to
assure great care and deliberation, all avoidance of
disputes as to scope and meaning is not within hu-
man gift. Just as this Court has power to settle dis-
putes between States where there is no compact, it
must have final power to pass upon the meaning and
validity of compacts. It requires no elaborate argu-
ment to reject the suggestion that an agreement
solemnly entered into between states by those who
alone have political authority to speak for a State can
be unilaterally nullified, or given final meaning by an
organ of one of the contracting States. A State cannot
be its own ultimate judge in a controversy with a
sister State. To determine the nature and scope of
obligations as between States, whether they arise
through the legislative means of compact or the ‘fed-
eral common law’ governing interstate controversies
(Hinderlider v. La Plata Co., 304 U.S. 92, 110), is the
function and duty of the Supreme Court of the Na-
tion.” 341 U.S. at 28.
Here, for the first time, operation and interpretation
o
of a regulation adopted by an interstate agency is in-
volved in addition to interpretation of the compact it-
self. The rationale, however, of decisions such as Marlatt
v. Silkand Dyer v. Sims, requires that principles applica-
ble to the construction of compacts also be applicable to
the construction of interstate regulations.
In Dyer v. Sims, this Court rejected a proposition de-
signed to avoid compact obligations by transposing an
issue from one of compact interpretation into one of
state law interpretation. In contrast, the Ninth Circuit
decision overlooks the federal common law nature of
the administrative law questions raised and thereby
would allow a party-state to modify its compact obliga-
tions by unilateral judicial or legislative action.
In this case, any obligation to support approvals made
pursuant to the Compact with findings does not stem
from Nevada state law or local ordinance, but arises
pursuant to the TRPA land use ordinance applicable
throughout the region. Certain procedural details such
as time and place of hearing may properly be left to local
law. See, LUO §3 (definition of “Administrative Per-
mit”). But issues as to whether findings and substantial
evidence are required or whether verbatim “findings”
are sufficient, require examination of the obligations as-
sumed by the parties to the compact—as reflected in the
ordinance adopted by the interstate agency. It is pre-
cisely such questions which require uniform interpreta-
tion rather than relegation to the independent and
potentially conflicting decisions of each party state.
A. Interpretation of the TRPA Compact and Ordinance.
A uniform requirement for findings explaining the
rationale for adjudicatory approvals pursuant to the
TRPA ordinance is suggested by the language of the
am 18
compact and ordinance, this Court’s previous interpre-
tations of similar regulations, and the reciprocity ele-
ment involved in zoning control.
A primary purpose of the compact is to remedy defi-
ciencies of existing environmental control. Compact,
Article I(b). This purpose is to be accomplished by
creating “an area-wide planning agency with the power
to adopt and enforce a regional plan of resource conser-
vation and orderly development, to exercise effective
environmental controls. . . .” Compact, Article I(c)
(emphasis added). The provisions of the compact and
ordinance are expressly required to be liberally con-
strued to effectuate their purposes. (Compact, Art.
VHI (a); LUO § 2.20.)
Under the Compact, the TRPA is mandated to pro-
mulgate uniform minimum standards applicable
throughout the region. The political subdivisions of the
individual states are empowered to establish higher or
equal standards than those promulgated by the TRPA,
but the individual states or their political subdivisions
cannot promulgate or enforce standards lower than
those promulgated by the TRPA in its ordinances.
(Compact, Art. VI(a).) These uniform standards in-
clude the criteria in sections 7.13 and 8.33.
Section 7.13 requires a “determination” of express
conditions to support a height variance.'? In the more
12 “Tt is basic to the fundamental purpose of zoning that the power
of a local board . . . to grant variances should be exercised spar-
ingly and only in exceptional circumstances, and ordinarily only
when relief can pol pargoe ‘without substantial detriment to the
eng and will not substantially impair the intent and pur-
pose of the zone plan and zoning ordinance’... . A grant of
variance which has the effect of frustrating the general scheme
and is tantamount to a usurpation of the legislative power re-
served to the governin y of the municipality to amend or
revise the plan cannot be sustained.” Leimann v. Board of Ad-
jJustment, 88 A.2d 337, 339 (NJ. 1952) (Brennan, J.).
_—
intense use districts such as the tourist commerical dis-
trict involved in this case, height is critical since when
operating together with land coverage requirements,
the effect is a form of bulk limitation, controlling the
total intensity of use. Section 8.33 requires that certain
matters be “found” before a permit is issued. In the case
of both § 7.13 and § 8.33 the conditions specified go to
the heart of the purpose for the compact—environmen-
tal protection. The ordinance requires compliance with
all of its requirements, whether substantive or proce-
dural. LUO §§ 2.10, 4.21. The burden of.proof is on the
applicant. LUO § 4.22. \
This Court held that the F.P.C. must explain its action
in rejecting objections to a bond issue under Section 204
of the Federal Power Act, where that act requires the
F.P.C. to only make such order if it “finds” certain con-
ditions. Gulf States Utilities Co. v. FPC, 411 U.S. 747, 763
(1973). This Court reached a similar result with respect
to the requirement to “determine” in Morgan v. United
States, 298 U.S. 468, 479-80 (1936).
Findings are crucial here because thousands of other
Lake Tahoe Basin landowners have been significantly
restricted in the use of their property, in order to imple-
ment the salutary purposes of the compact. See, Jacob-
son v. Tahoe Regional Planning Agcy., 566 F.2d 1353,
1357-58 (9th Cir. 1977), rev'd, sub nom. Lake Country
Estates, Inc. v. Tahoe Regional Planning Agency, — U.S.
—, 59 L.Ed.2d 401 (1979). What is particularly striking
is that the thousands of landowners restricted to rural
property uses will only benefit if the scenic beauty of the
7
Bsr Se
area is protected as intended by the legislation. To the
extent massive developments, laying claim to the re-
maining finite resources in the basin to accommodate ©
further development, are approved without clear evi-
dence that they satisfy the environmental criteria of the
ordinance, there will be adverse impacts upon restricted
landowners, and interference with more natural public
uses. As the California Supreme Court has stated:
“Moreover, courts must meaningfully review
grants of variances in order to protect the interests
of those who hold rights and property nearby the
parcel for which a variance is sought. A zoning
scheme, after all, is similar in some respects to a con-
tract; each party foregoes rights to use its land as it
wishes in return for the assurance that the use of
neighboring property will be similarly restricted, the
rationale being that such mutual restriction can en-
hance total community welfare. [Citation omitted.]
If the interest of these parties in preventing unjusti-
fied variance awards for neighboring land is not suffi-
ciently protected, the consequence will be
subversion of the critical reciprocity upon which the
zoning regulation rests.” Topanga Assn. for a Scenic
Community v. County of Los Angeles, 11 Cal. 3d 506;
522 P.2d 12, 19 (1974).
The Court of Appeals declined to review the adequa-
cy of the “findings” and the evidence in support of the
“findings”. It also declined to interpret Sections 7.13 and
8.33 of the Ordinance to decide whether no findings at
all, as a matter of law under the ordinance, are legally
adequate.
Enforcement of a uniform requirement of reasoned
a on
findings is the only way to insure that interstate agencies
and their delegatees, which are beyond the control of
the states, remain within the confines of the jurisdiction
conferred upon them with the consent of Congress.
Without such enforcement, the provisions of the TRPA
ordinance become subject to a de facto veto at the state
level, contrary to this Court’s characterization of TRPA’s
rules in Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, — U.S. —, 59 L.Ed.2d 401, 411 (1979)
(“Moreover, while TRPA, like cities, towns, and coun-
ties, was originally created by the States, its authority to
make rules within its jurisdiction is not subject to veto
at the state level.”’).
B. Applicable Federal Principles.
Even aside from the language of the TRPA ordinance,
“[t}he orderly functioning of the process of review re-
quires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sus-
tained.” S.E.C. v. Chenery Corp., 318 U.S. 80, 94 (1943).
Here we deal with non-APA, adjudicatory action—the
actual application of a rule to a specific set of facts rather
than rule-making. See, United States v. Florida. East
Coast R. Co., 410 U.S. 224, 245 (1973). This Court has
never decided whether findings and substantial evi-
dence are required to support the adjudicatory decisions
rendered by agencies operating under interstate com-
pact. However, the general rule is that findings are re-
quired to sustain adjudicatory decisions. Prior to the
adoption of the Administrative Procedure Act in 1946,
the numerous cases requiring findings were founded in
ion
either common law or the constitution. 2 Davis, Ad-
ministrative Law Treatise, § 16.00-2, at p. 385 (1976
Supp.); United States v. Florida East Coast R. Co., 410
U.S. 224, 242 (1973).
Basically, “findings and reasons are part of a bundle of
anti-arbitrariness devices, and often the other sticks in
the bundle are dependent upon findings and reasons.”
2 Davis, Administrative Law Treatise, § 16.00-6, at p. 394
(1976 Supp.).
The requirement is for “basic” findings to support the
decision. The mere quoting of the statutory language is
insufficient. U.S. v. Pierce Auto Lines, 327 U.S. 515, 533
(1946) ; Morgan v. United States, 298 U.S. 468, 480 (1936) ;
Florida v. United States, 282 U.S. 194, 215 (1931). In
Schaffer Transp. Co. v. U.S., 355 U.S. 83 (1957), this
Court held that an interstate commerce commission or-
der must be set aside because the administrative record
did not disclose the factors which the ICC compared, in
concluding that existing rail service was “reasonably
adequate” in denying an application by a motor carrier.
In Dunlopv. Bachowski, 421 U.S. 560 (1975) , the Court
held that a statement of reasons was required support-
ing a determination to not bring a Labor Management
Reporting and Disclosure Act enforcement action.
“[A] ‘reasons’ requirement promotes thought by
the Secretary and compels him to cover the relevant
points and eschew irrelevancies . . .” /d. at p. 572.
The Legislature is constitutionally enjoined to pre-
scribe a findings requirement when delegating ad-
judicatory decision-making authority. Wichita R.R. v.
anti...
Pub. Util. Comm., 260 U.S. 48, 58-59 (1922). The courts
can not determine whether the legislative standard has
been satisfied by agency action, in the absence of disclo-
sure of the basis for the action. Burlington Truck Lines
v. U.S., 371 U.S. 156, 167-68 (1962). Post hoc rationaliza-
tion by the courts or other excusing of the lack of find-
ings is incompatible with judicial review and leads to
judicial usurpation of the administrative function. /d. at
168-69.
It has already been held that “if the local authorities
violate the variance guidelines and other ordinances in
granting permits, either state as well as the TRPA has
the right to bring action in state or federal court seeking
compliance with the regional plan and the TRPA regula-
tions. See Article VI(b).” People of St. of Cal. ex rel.
Younger v. Tahoe Reg. P. Ag., 516 F.2d 215, 219, n.5 (9th
Cir. 1975), cert. denied, 423 U.S. 868 (1975). Yet in the
absence of an administrative record disclosing the
grounds for the decision, there is no procedure by which
the issue of administrative “compliance” can be deter-
mined. ne
Since the APA‘does not treat interstate agencies, it is
proper for this Court to turn again to accepted adminis-
trative law principles—whether of “common law” or
“constitutional” origin—to require the making of an
adequate administrative record for judicial review of
adjudicatory actions rendered pursuant to interstate
regulations. This would necessarily include findings set-
ting forth a contemporaneous explanation of an agency
adjudicatory action of the type involved here.
“ye
In conclusion, findings are particularly necessary, in
the case of permits issued pursuant to interstate regula-
tions because the individual party states do not control
the compact agency. Douglas County furnished no ex-
planation why respondents’ projects merited approval
under §§ 7.13 and 8.33 of the ordinance. In this context,
the suspicion, engendered by unexplained decisions, of
arbitrary administrative action is magnified in the other
party-states. It is wrong to countenance a situation in
which findings and substantial evidence may be re-
quired in one location, but not in another location, to
support decisions made under the same regulation.
lll. THE COURT OF APPEALS ERRED IN HOLDING THAT
THIS FEDERAL ACTION IS BARRED BY THE NEVADA
25-DAY STATUTE OF LIMITATIONS.
Nevada Revised Statutes Ch. 278.027 (App. G) ex-
pressly pertains only to decisions granting “any special
use or variance authorized by NRS 278.010-278.630, in-
clusive.” But the compact is codified at NRS 277.190-
277.200. These sections are not within the sections speci-
fied within the limitation statute. Douglas County grant-
ed “Administrative Permits” authorized and required
solely by the compact and TRPA Ordinance, not local
special use or variance permits contemplated by such
sections as NRS Ch. 278.020, 278.315, and 278.317. Chap-
ter 278.027 was adopted in 1971, more than one year
after the compact became effective, and would have
included the compact sections within the sections speci-
fied, if that had been the intent. In 1971, the Nevada
Legislature expressly mentioned the compact sections
= oe -»®
when drafting procedural provisions applicable to
TRPA matters. Nevada enacted NRS Ch. 277.207 (App.
G) requiring the expediting of all cases “in which there
may arise a question of the validity of any matter under
the provisions of NRS 277.190 to 277.200, inclusive . . .”.
There is another missing element as well. The Court
of Appeals stated that “appellants also assert that section
278.027 requires the filing of notice of final action with
the clerk or secretary of the local permit issuing author-
ity after the default approval and that no such filing was
made with Douglas County in this case.” (App. A, at p.
20, 29 n. 13.) In fact no filing was made anywhere. The
filing is expressly required by the limitation statute and
is obviously the act triggering the running of the statute.
The Court of Appeals erred in following the Nevada
Supreme Court decision in League to Save Lake Tahoe
v. Tahoe Reg. PI., 563 P.2d 582 (Nev. 1977) which did not
even discuss the filing question. A state court determina-
tion affecting a compact obligation is not binding upon
the federal courts. Dyer v. Sims, 341 U.S. 22, 28-31
(1951). The surprising and expansive post hoc construc-
tion of a seemingly inapplicable limitation statute,
should not bar this action.
The only Nevada statute of limitation arguably appli-
cable would not bar the action. NRS Ch. 11.220 provides
“Any action for relief not herein before provided for,
must be commenced within 4 years after the cause of
action shall have accrued.” This limitation is identical to
the California catch-all statute contained in Code of
Civil Procedure section 343. The four year statute and
the federal equitable doctrine of laches are the apparent
potential limitations in view of the silence of the Com-
pact and ordinance.
_— a
However, the applicability of any state statute of limi-
tation to an action such as this even if coverage is intend-
ed is doubtful. Holmberg v. Armbrecht, 327 U.S. 392
(1946) and Occidental Life Ins. Co. v. EEOC, 432 U.S.
355, 366-72 (1977), hold that state limitations do not bar
federal actions enforcing federal claims for equitable
relief, or seeking vindication of public rights. The appli-
cability of state statutes of limitation to actions brought
to enforce interstate obligations has never been decided
by this Court. Considerations of uniformity and the “in-
ternational” nature of the applicable law, Dyer v. Sims,
supra, suggest that state limitation acts should not be
applicable to such actions.'*
The complexity of the compact issues, the several in-
tervening TRPA Compact decisions, and the previous
diligent attempt to litigate the issues in the Nevada state
courts compel reaching rather than avoiding the merits
presented in this case.'*
‘3 Though the Court of Appeals made no ruling as to laches, laches
should not bar this action. Here there has seep no construction,
and no building permits have been issued for the improvements
in question. In view of the prior litigation which gave notice of
the claims and the absence of prejudicial reliance, the district
court clearly erred in sustaining the laches defense on the plead-
igseh Czaplicki v. The Hoegh Silvercloud, 351 U.S.525,
ae x American Pipe and Construction Co. v. Utah, 414 U.S. 538
554 (1974) (purpose of limitation act in giving notice of claim had
been met); Burnett v. New York Central R Co., 380 U.S. 424
(1965) (3-year FELA statute tolled because of pendency of state
court action on the same claim); Southern Pacific Co. v. Bogert,
250 U.S. 483, 489-90 (1919) pr litigation gave notice of
claims) ; Ashland Oil, Inc. v. lips Pe Company, 554
F.2d 381, 392 (10th Cir. 1975), cert. denied, 434 U.S. 921, 968
(complexity and protracted nature of litigation) ; Eastlake Com-
munity Council v. Roanoke Assoc., Inc., 513 P.2d 36, 43 (Wash.
1973) (“Defendants started the project with full awareness that
there were multiple, serious | obstacles and cannot now
claim relief simply because money was e ded in the face of
an awareness they might not have a legal right to proceed.”).
— 27 —
lV. THE COURT OF APPEALS ERRED IN HOLDING THAT
BECAUSE THE ALLEGED NUISANCE IS ANTICIPATORY
AND WAS APPROVED PURSUANT TO COMPACT, A
STATE’S FEDERAL COMMON LAW NUISANCE CLAIM
MAY BE DISMISSED ON THE PLEADING.
Congress added Section 5 of the Compact providing:
“[(N]othing contained in the Act or in the compact
consented to shall in any way affect . . . the applica-
bility of any law or regulation of the United States in,
over, or to the region or waters which are the subject
of the compact. . . .”. (Emphasis added.)
The federal common law of nuisance is as much a
“law” of the United States as are laws of statutory origin.
Illinois v. City of Milwaukee, 406 U.S. 91, 98-100 (1972).
Unable therefore to hold that the Compact preempted
California’s common law claim, the Ninth Circuit never-
theless held that the Compact approval mechanism “af-
fected the viability of’ and precluded California’s claim
anyway. The approval mechanism is the ordinance,
which was created by the TRPA. The Ninth Circuit did
not explain how the TRPA in an ordinance managed to
do exactly what the states did not do and what Congress
ruled out in Section 5 of the Compact.
The Seventh Circuit has just issued an interstate nui-
sance decision in J//inois v. City of Milwaukee, F.2d
__ (No. 77-2246, April 26, 1979). (App. H). Unlike this
case, the decision came after trial rather than demurrer.
Nevertheless, the holding of the Seventh Circuit con-
cerning the impact of a statutory regulatory program on
the “viability” of the federal common law nuisance rem-
_—
edy is in conflict with the Ninth Circuit decision.
The Seventh Circuit held that compliance with a per-
mit issued under the federal water pollution control
laws is not a defense to a federal common law nuisance
action. (App. H at 292). The court held that the federal
laws do not limit the equitable relief that can be granted.
“If accepted, defendants’ argument would reduce
a cause of action under the federal common law to no
more than an alternative avenue for enforcement of
the statute.” (App. H at p. 293-94.)
The Seventh Circuit also held that when a state is the
plaintiff in a common law nuisance action against a non-
state defendant commenced in a trial court (as opposed
to this Court) , the correct standard of proof is “a prepon-
derance of the evidence rather than clear and convinc-
ing evidence”. (App. H at pp. 300).
“While it is appropriate to give weight to Con-
gress’ expectations in adopting the Act and the stand-
ards established by EPA pursuant to the Act, we
cannot forget that Congress deliberately chose to
preserve existing rights and remedies. Thus, if the
evidence in this case shows that requirements more
stringent than those imposed in the NPDES permits
are necessary to protect Illinois residents from harm
caused or threatened by the defendants’ sewage dis-
charges, plaintiffs are entitled to have the more strin-
gent requirements imposed. We can think of no
other reason for Congress’ preserving previously ex-
isting rights and remedies than to protect the inter-
ests of those who would be able to show that the
requirements imposed pursuant to the federal stat-.
ute are inadequate to protect their interests. When
pat Ta
the complaining party is a neighboring state, the fed-
eral common law of nuisance provides a peculiarly
appropriate remedy.” (App. H at p. 296-297).
Review of the Ninth Circuit decision is clearly called
for in view of the conflict between decisions.
The Ninth Circuit said “In so holding [that the inter-
state nuisance claim is unavailable] we must remember
that these projects have passed the gauntlet of approval
established by the compact and the ordinance.” (App.
A, at p. 24). The “gauntlet” is fictional, in light of the
absence of findings and evidence in the record to sup-
port the approvals. The statement that “the record
before the district court manifests the conflicting evi-
dence as to the degree of potential injury” (App. A, at
p. 24) is mystifying. The environmental impact analyses
prepared with respect to each project required by the
TRPA ordinance (LUO §§ 8.25, 8.27) were prepared by
the applicants’ own consultants. Even so, the reports
conceded a number of adverse impacts, including traf-
fic, and air pollution to the point of violating applicable
federal standards. (Record, Pl. exh. 2 doc. 3, exh. 3 doc.
3, exh. 4 doc. 3.)
More importantly, the nuisance claim is at the plead-
ing stage—identical for comparison purposes to the
demurrer proceedings in the original action in this
Court, Missouri v. illinois & Chicago District, 180 U:S.
208 (1901). The Ninth Circuit in holding that the nui-
sance must be proven real and immediate and not
doubtful cited, but misapprehended, this Court’s deci-
sion. This Court held that such tests are irrelevant at the
inalilliis
pleading stage. 180 U.S. at 248-49.
The granting in this case of the motions to dismiss
without leave was affirmed. Yet “[a] complaint should
not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him
to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (re-
versing dismissal) .
This Court has already discussed air pollution—one of
the principal nuisances alleged here:
“Air pollution is, of course, one of the most notori-
ous types of public nuisance in modern experience
. . . [(GJeophysical characteristics which define local
and regional airsheds are often significant considera-
tions in determining the steps necessary to abate air
pollution . . . Thus, measures which might be ade-
quate to deal with pollution in a city such as San
Francisco, might be grossly inadequate in a city such
as Phoenix, where geographical and meteorological
conditions trap aerosols and particulates.
“As a matter of law as well as practical necessity
corrective remedies for air pollution therefore nec-
essarily must be considered in the context of local-
ized situations.” Washington v. General Motors
Corp., 406 U.S. 109, 114-16 (1972).
The Court of Appeal’s opinion however ignores the
obvious, in denying the right of California to attempt to
prove its allegations at trial. Considering the world fa-
mous scenic beauty of the Lake Tahoe Basin, and the
susceptibility of the Basin to air and water pollution, the
traffic, water quality, and other impacts arising from >
“high-rise hotels and their occupants” may indeed, con-
— }
trary to the Court of Appeal’s decision (App. A, at p. 26),
constitute an enjoinable anticipatory nuisance.
The basis for the federal common law remedy, is that
a state has a quasi-sovereign right to protect its air and
forests and other resources from being destroyed or
threatened by the acts of persons beyond its control.
Georgia v. Tennessee Copper Co., 206 U.S. 230, 237-38
(1907).
“Thus, a State with high water quality standards
may well ask that its strict standards be honored and
that it not be compelled to lower itself to the more
degrading standards of a neighbor.” J//inois v. City of
Milwaukee, 406 U.S. 91, 107 (1972).
Here, a state has followed the preference of this Court
indicated by the refusal to exercise concurrent jurisdic-
tion in J/linois v. City of Milwaukee, by first filing this
case in the federal district court. It seems singularly
inappropriate to now fail to provide the state the benefit
of the controlling federal common law principles
heretofore established by this Court. There are two
means provided by the federal constitution for adjusting
interstate controversies; direct litigation is one, while
interstate compact is the other. Dyer v. Sims, 341 U.S. 22,
26-27, 31 (1951); Hinderliderv. La Plata Co., 304 U.S. 92,
110 (1938). It is respectfully submitted that when a
Court of Appeals errs badly in an interstate controversy,
a compelling case for review by this Court is presented.
Here, the Ninth Circuit has construed a compact and
ordinance to provide no protection at all. Then, the
Ninth Circuit interprets the compact which (1) is in-
tended to protect the environment, (2) preserves fed-
pa: ee
eral common law nuisance remedies, and (3) is to “be
reasonably and liberally construed to effectuate the pur-
poses thereof’, nevertheless to preclude the opportu-
nity for California to prove interstate nuisance
allegations at trial. This turns the compact upside down.
This is wrong.
CONCLUSION
For the reasons stated above, a writ of certiorari
should issue to review the judgment and opinion of the
Court of Appeals for the Ninth Circuit.
DATED: July 5, 1979
Respectfully submitted,
GEORGE DEUKMEJIAN,
Attorney General of the
State of California
ROBERT HARVEY CONNETT and
E. CLEMENT SHUTE, JR.,
Assistant Attorneys
General, Of Counsel
E. ROBERT WRIGHT
LAURENS H. SILVER
SIERRA CLUB LEGAL DEFENSE FUND, INC.
311 California Street, Suite 311
San Francisco, California 94104
Telephone: (415) 396-1411
Attorney for Petititioners
League to Save Lake Tahoe
and Sierra Club
| APPENDIX A
§
aay ee
UNITED STATES COURT
OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA TAHOE REGIONAL PLAN-
NING AGENCY AND PEOPLE OF THE
STATE OF CALIFORNIA,
Plaintiffs-Appellants,
vs.
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK
CATTLE CO., and COUNTY OF DOU-
GLAS,
Defendants-Appellees.
LEAGUE TO SAVE LAKE TAHOE; and
THE SIERRA CLUB,
Plaintiffs-Appellants,
vs.
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK
CATTLE CO.; DEL WEBB INTERNA-
TIONAL, INC.; COUNTY OF DOUGLAS,
Defendants-Appellees.
7
NOS. 78-1160
78-1224
OPINION
a? ee
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF NEVADA
Before: MERRILL and SNEED, Circuit Judges, and
LINDBERG,* District Judge.
SNEED, Circuit Judge:
Appellants appeal from the district court’s grant of
appellees’ motion to dismiss and denial of appellants’
motions for a temporary injunction and for summary
judgment in this suit to prevent the construction of four
hotel-casinos at the south shore of Lake Tahoe. The ap-
pellants are California Tahoe Regional Planning Agency
(CTRPA) and the State of California, the League to
Save Lake Tahoe (League), and the Sierra Club. The
appellees are Douglas County, Nevada, Ted Jennings,
Oliver Kahle, Harvey’s Wagon Wheel, Inc. (Harvey’s),
and Park Cattle Co. (Park), five in all. In their com-
plaints, all appellants assert that certain administrative
action of Douglas County violated the relevant portion
of the California-Nevada interstate compact to regulate
the Lake Tahoe Basin. The CTRPA and the State of
California allege a second cause of action in which they
assert a nuisance under federal common law against all
appellees except Park.' After a hearing, the district
court refused all relief to appellants and granted appel-
* Hon. William J. Lindberg, Senior United States District Judge for :
the District of Washington, sitting by designation.
a po
lees’ motion to dismiss. We affirm.
|. Factual Background.
A. Facts Directly Relevant To This Case.
This case is only the latest in a series of cases, a sketch
of which appears below, in which this court has been
called upon to intervene in, interpret, or implement the
provisions of the Tahoe Regional Planning Compact
(Compact). California and Nevada entered into this
Compact in 1968 and Congress gave its consent in De-
cember 1969. Public Law 91-148, 83 Stat. 360 (1969). The
Compact created a regional agency, the Tahoe Regional
Planning Agency (TRPA), with powers to regulate and
control development within the Lake Tahoe Basin by
adopting a regional plan and adopting all ordinances,
rules, regulations and policies necessary to effectuate
the plan. See League to Save Lake Tahoe v. Tahoe Re-
gional Planning Agency, 507 F.2d 517, 518 (9th Cir.
1974), cert. denied, 420 U.S. 974 (1975).
As this court previously noted:
Pursuant to its mandate, the TRPA adopted vari-
ous procedural regulations and imposed certain land
use, height and density restrictions applicable to de-
velopments in the Basin. If a builder wanted to de-
velop more than 200 square feet of land or to erect
certain types of structures, he was required first to
seek a permit from the local permit-issuing authority
(generally, the zoning authority of the county in
which the construction was to take place). The per-
mit-issuing authority, according to TRPA regula-
tions, was required to adhere to the policies and land
aeatienin
restrictions adopted by the TRPA but was granted
the power to issue variance permits under certain
circumstances.
- California ex rel. Younger v. Tahoe Regional Planning
Agency, 516 F.2d 215, 216 (9th Cir.), cert. denied, 423
U.S. 868 (1975). The TRPA can review variance permits
issued by local zoning boards, but must act affirmatively
to reverse or modify the permit grant by a dual majority
within 60 days or the permit is “deemed approved” and
the action of the local authority stands. See California ex
rel. Younger v. Tahoe Regional Planning Agency, supra.
The TRPA adopted the ordinance at issue February
10, 1972. Land Use Ordinance § 7.13 limits the height of
buildings in tourist-commercial areas to 40 feet,
except that the permit-issuing authority, by adminis-
trative permit pursuant to Section 8.33, may author-
ize a greater height to the extent that the
permit-issuing authority determines that... (4)
such greater height will better promote the protec-
tion of the environment of the area.
Section 8.33 requires that before issuing an administra-
tive permit, a permit-issuing authority find that the par-
ticular use is not detrimental to the general welfare and
will not cause substantial environmental consequences.
Each of the four defendant hotel-casino builders re-
ceived administrative permits issued by the Douglas
County Commissioners after hearings and a presenta-
tion of evidence. The sizes of the projects ranged in
height from 100 feet (Kahle) to 193 feet (Harvey’s) ; in
number of hotel rooms from 446 (Park) to 960 (Kahle) ;
and in land coverage from 45% (Kahle) to 75% (Har-
_—
vey’s). Park received the first permit April 20, 1973;
Harvey’s received its permit, the last of the four, on June
20, 1973. The Douglas County Board issued written find-
ings for the Jennings and Kahle projects which merely
repeat verbatim the findings required by the Land Use
Ordinance, but issued no written findings with respect
to the Harvey’s and Park permits. As the next step, the
Nevada Tahoe Regional Planning Agency, a state
agency empowered to exercise environmental control
over gaming establishments in the Nevada side of the
Basin, approved each project.? Finally, as required by
TRPA ordinance, each project was presented to the
TRPA for review.’ In each case the TRPA failed to
achieve a dual majority as to the projects, and the
projects were “deemed approved.” * Measured by sixty
days from submittal to the TKPA, on September 20, 1973
Harvey’s project, the last of the four projects to be so
approved, received its so-called “default approval.”
The present appeal springs from two separate actions,
both filed in federal district court August 20, 1977, almost
four years after the default approvals. One count of each
complaint charges that each permit was invalid because
not in compliance with the 40 foot height limitation in
Land Use Ordinance (L.U.O.) § 7.13. California and the
CTRPA also claimed that the building of the projects
will result in a common law interstate nuisance adverse-
ly affecting California and its citizens. Defendants Jen-
nings, Kahle and Harvey’s moved to dismiss on
numerous grounds without answering the complaints.
Park answered and moved for summary judgment. Af-
ve ee
ter hearing oral argument and accepting submitted evi-
dence, the district court issued its opinion on October
20, 1977, dismissing appellants’ actions on several
grounds. While these cases were on appeal, this court, on
September 5, 1978, granted an injunction preventing
Harvey’s from commencing construction pending our
decision.
8B. A Sketch of Prior Litigation.
The present case is only one of several initiated in
response to appellees’ four projects. Various combina-
tions of plaintiffs and defendants have skirmished incon-
clusively in both federal and state court. In the first case,
filed September 20, 1973, the League and the Sierra
Club initiated a suit in federal district court against the
TRPA, Harvey’s and Park claiming that the TRPA failed
to comply with the Compact’s requirements and focus-
ing predominantly on the surface coverage provisions
adopted by the TRPA. This suit engendered two opin-
ions by this court; neither reached the substance of the
claim. Thus, in League to Save Lake Tahoe v. Tahoe
Regional Planning Agency, 507 F.2d 517 (9th Cir. 1974),
after the district court first dismissed the action for lack
of subject-matter jurisdiction, we reversed, holding that
interpretation of an interstate compact raised a federal
question. After remand, in League to Save Lake Tahoe
v. Tahoe Regional Planning Agency, 558 F.2d 914 (9th
Cir. 1977), we reversed a second dismissal seemingly
premised upon impermissible joinder. Subsequent to.
these two reversals, the parties voluntarily dismissed a
eos
third appeal from a denial of a preliminary injunction.
In a second suit, filed August 7, 1974, the State of
California attacked the validity of the Jennings and Ka-
hle permits asserting that the permits could not be con-
sidered “deemed approved” because the TRPA’s vote
had failed to yield a dual majority. This court upheld the
district court’s interpretation of the Compact to the ef-
fect that a dual majority was required before any “ac-
tion” could be taken, and that therefore the failure of a
vote to yield a dual majority means that “the local per-
mit issuing authority in effect stands affirmed.” Ca/ifor-
nia ex rel. Younger v. Tahoe Regional Planning Agency,
516 F.2d 215, 219 (9th Cir.), cert. denied, 423 U.S. 868
(1975). Afterwards, the district court dismissed the ac-
tion “pursuant to the opinion and mandate of the United
States Court of Appeals for the Ninth Circuit” on Octo- .
ber 15, 1975.
The League filed suit against the TRPA and all appel-
lees in Nevada state court on August 16, 1974. It claimed
that the permit issuances violated TRPA ordinances and
state and local permit requirements. The League assert-
ed the same lack of findings and insubstantial evidence
claims raised in the present suit. The trial court dis-
missed the action in September 1975 because the
League failed to qualify to do business as a corporation
in Nevada prior to filing the complaint. The Nevada
Supreme Court affirmed the lower court, going on to
state that refiling would be barred by the Nevada 25-day
limitation period (N.R.S. § 278.027) for challenges to ‘lo-
cal land approvals. League to Save Lake Tahoe v. Tahoe
=— 10 —
Regional Planning Agency, 563 P.2d 582 (Nev. 1977).
Finally, the League filed suit May 3, 1976 in federal
district court contending that air quality certificates for
the Jennings and Kahle projects had been issued in viola-
tion of the Clean Air Act. Dismissed on jurisdictional
grounds by the district court, this suit is presently on
appeal to this court. League to Save Lake Tahoe v.
Trounday, Ninth Circuit No. 77-2058.
ll. Issues To Be Resolved In This Appeal.
To dispose of this appeal we must confront four clus-
ters of issues. Initially, we must decide whether we have
jurisdiction to consider the issues that this appeal pre-
sents. Because we conclude that jurisdiction exists, we
then must turn to whether L.U.O. §7.13 permits
projects whose height corresponds to that of the appel-
lees’ projects. As we hold that such projects are not un-
conditionally barred by L.U.O. §7.13, we then must
consider whether the process by which Douglas County
approved these permits is subject to attack on any valid
grounds. Finally, we shall consider whether California
can maintain an action in the circumstances of this case
under federal common law for interstate nuisance. To
these matters we now turn.
Ill. Jurisdiction.
Generally, ques:ions concerning the interpretation
and application of TRPA ordinances do present federal
questions. League to Save Lake Tahoe v. BJ.K. Corp.,
547 F.2d 1072, 1075 (9th Cir. 1976). But in BK. Corp.
=
we recognized that questions arising under the TRPA
ordinances did not invariably present federal questions;
rather we adopted a pragmatic approach to determine
“when construction of the Land Use Ordinance itself
presents a federal question.” 547 F.2d at 1074. The touch-
stone we fashioned is
whether interstate conflicts in the interpretation and
application of the Ordinance may arise that may sub-
stantially affect the effective functioning of the Com-
pact and whether, absent a federal trial forum
existing judicial mechanisms supply a practical
means for resolving such conflicts.
1d.
Application of the Ordinance to this case is not dif-
ficult. The proper interpretaion of L.U.O. § 7.13 lies at
the heart of this litigation. Appellants argue that the
40-foot height limitation is mandatory and that signifi-
cant departures can be approved only in accordance
with the principles that govern the granting of a vari-
ance from zoning regulations. Appellees view the mat-
ter differently. Were resolution of this dispute left to the
courts of Nevada and California differing interpreta-
tions of L.U.O. § 7.13 could result. This would impair the
effective functioning of the Compact. This is enough to
indicate that we have jurisdiction to decide this case.*
IV. The Proper Interpretation of L.U.O. § 7.13.
Section 7.13 of the Land Use Ordinance specifies
height limitations for projects in the Tahoe Basin.* In
this case, as already indicated, the applicable limit is 40
feet. The section provides that local permit-issuing au-
= 13
thorities can authorize heights in excess of 40 feet to the
extent that they determine that four factors have been
considered, the final one being that the greater height
“will better promote the protection of the environment
in the aree.” It further states that only permits for struc-
tures of 45 feet or more are subject to TRPA review.
Appellants contend that §7.13 did not comprehend
projects such as appellees’. They argue that the section
should be read to establish an absolute height limit, or
at least to prohibit the material variations present in
“high rise” structures.
We begin our analysis with the recognition that “the
Compact and the TRPA are sui generis offsprings of a
marriage between soverign partners. .. .” California
ex rel. Younger v. Tahoe Regional Planning Agency, 516
F.2d at 218. Section 7.13 cannot be analyzed merely as
a traditional zoning ordinance, subject to limited vari-
ances. Nor do we think that characterizing the permit as
a “special use” permit rather than a “variance” aids the
interpretation of L.U.O. § 7.13. Our duty is to interpret
the language of the Ordinance in an unstrained manner
and in a way that conforms to the design of the Com-
pact.” Focusing initially on the Compact, it is clear that
it was not designed to stop economic development in
the Tahoe Basin. Article I(c) states that the parties
sought to create a “regional plan of resource conserva-
tion and orderly development.” (italics added) . The or-
dinance in question was designed to foster the
orderliness of development. Does it do so by prohibiting
heights significantly in excess of 40 feet? We think not.
oe ee |
ita ns
In the first place, section 7.13 on its face contemplates
heights in excess of 45 feet. Projects in excess of that
height are subject to TRPA review. Review would not
be necessary if such projects were proscribed. It is not
possible to state with certainty that 100 to 200 foot
heights were contemplated, but nothing in the ordi-
nance explicitly forbids such heights. At the time the
Compact was formed and this Ordinance adopted sev-
eral structures in the Basin were of a height substantially
in excess of 40 feet. This strongly suggests that no max-
imum height was established in the Ordinance so long
as the four conditions set out in § 7.13 are met pursuant
to proceedings that conform to L.U.O. § 8.33.°
This court previously has recognized that the Com-
pact is not the powerful antigrowth measure that some
people would wish it to be. California ex rel. Younger v.
Tahoe Regional Planning Agency, 516 F. 2d at 220. The
process through which section 7.13 was adopted con-
formed to that required by the Compact. Had it been
intended to prohibit all high rise construction that inten-
tion surely could have been expressed more clearly. Al-
though many undoubtedly believe that heights in excess
of 40 feet cannot possibly “better promote the protec-
tion of the environment,” the Ordinance does not incor-
porate that belief. We therefore reject the appellants’
interpretation of section 7.13.°
V. Attacks On the Douglas County Permits
Under the Compact, the TRPA has delegated the ini-
tial permit granting function to local authorities. Such
icoisi Sas
action is consistent with the jealous retention of sove-
reignty by the two parties to the Compact. The Douglas
County Commissioners issued these permits, pursuant
to authority delegated by the TRPA, after applying
standards created by the TRPA. Although the Ordi-
nance does not specify the procedures to be used by
local permit-issuing authorities, section 3.00 does define
an “Administrative Permit” as “A permit issued by a
permit-issuing authority in accordance with its proce-
dures.” (italics added). The Ordinance thus clearly in-
tended local administrative procedures to apply to the
initial issuance. Once issued, § 4.32 subjects these per-
mits to TRPA review, according to the TRPA’s own
procedures.
A. Reviewability.
Appellants ask us to reach past the TRPA default ap-
proval of these projects and to review the validity of the
Douglas County permit issuance. Appellees suggest that
default approval immunizes Douglas County’s issuance
from such review. Therefore, we must decide whether
under the circumstances of this case the local permit-
issuing authority action is subject to review and, if so,
under what standards.
We begin by recognizing that thir ase would present
a different question if the TRPA approval was other than
by default. In the Younger decision, analyzing the “dual
majority” requirement of § 4.32, this court stated;
[T]he TRPA has broad discretion to reject or approve
on the merits each building permit request. Howev- —
er, the TRPA’s power of de novo review is fully exer-
an Hae
cised only when a dual majority for or against a pro-
posal is reached.
516 F.2d at 219.
Younger characterized a split vote as no “decision.” Al-
though the court stated that the decision of the local
authority in effect stands affirmed, this only described
the operational effect of the TRPA’s failure to reach a
final decision. This failure should not provide the immu-
nity from review that full de novo review and dual ma-
jority approval by the TRPA might. Younger teaches
that under the circumstances of this case TRPA’s power
of de novo review was not fully exercised. Nothing in the
Compact or Ordinance suggests that when that is the
case the processes of the permit-issuing authority must
be considered as valid whether in conformity with its
own rules or not. In the absence of such a provision, the
presence of which would be anomolous in any event, we
believe the processes employed by Douglas Ccunty are
subject to judicial review. Therefore, we reject the ap-
pellees’ contention that default approvals immunize
Douglas County’s issuance of the permits from judicial
review.
B. Limitations.
We immediately confront an additional problem,
however. These actions were filed more than three
years after the default approvals. We must decide what
limitations period, if any, is applicable. The issue is not
a simple one, but we hold that appellants’ attack, to the
extent it rests solely on compliance with the procedural
requirements applicable to Douglas County’s issuance
— 16—
of the permits, ‘3 barred by Nevada's limitations provi-
sions.
We recognize that by consenting to the Compact,
Congress transformed the agreement of California and
Nevada into federal law. League to Save Lake ‘Tahoe v.
Tahoe Regional Agency, 507 F.2d 517, 523 n. 13 (9th Cir.
1974), cert. denied, 420 U.S. 974 (1975); Jacobson v.
Tahge Regional Planning Agency, 566 F.2d 1353 (9th
Cir. 1977), cert. granted, sub. nom. Lake Country Es-
tates, Inc. v. Tahoe Regional Planning Agency, 436 U.S.
943 (1978). Moreover, as already indicated, ‘“‘questions
concerning the interpretation and application of TRPA
ordinances present federal questions under 1331 (a).”
League to Save Lake Tahoe v. BJ.K. Corp., 547 F.2d
1072, 1075 (9th Cir. 1976). But by consenting to the Com-
pact, Congress did no more than incorporate the agree-
ment of the two parties into the body of federal law; it
did not make applicable to the agreement the entire
panoply of federa/ administrative and substantive stand-
ards. It cannot be gainsaid that the understanding of
Congress about the meaning of the Compact is impor-
tant; but the actual agreement of the States is certainly
no less so. We believe that the »roper balance between
the respective sovereigns requires that the intention of
the two States, acting through the TRPA, govern the
meaning of the L.U.O. to the extent that intention is not
in conflict with the Compact itself.
To discover this intent the starting point is that TRPA
delegated to local permit-issuing authorities the power
to issue administrative permits in accordance with their
a 17 «=
normal procedures. L.U.O. § 3.00. A “Permit-Issuing Au-
thority” is the local government which has the authority
and obligation to enforce the Ordinance. Each State
establishes the authority of, and manner in which, per-
mit-issuing authorities operate. By delegating initial per-
mit issuing to units of local government, creatures of the
laws of the individual states, the TRPA recognized the
importance attributed by the two States to retention of
their substantially unimpaired sovereignty. The TRPA
did not seek to establish one uniform procedural proc-
ess, rather it established a single standard to be applied
by state entities according to their traditional land use
determination procedure. The TRPA retained, of
course, discretionary power to overturn or modify this
decision if it so chose.
An integral part of the procedures through which lo-
cal authorities grant land use permits is the manner for
contesting the local administrative decisions. An impor-
tant component of this is the period within which chal-
lenges to an administrative decision can be brought.
This period establishes the finality of local land use deci-
sions and thus is part of the “procedures” by which per-
mits are granted. That period should be applicable in
this case. Here we do not confront a direct attack on an
action of the TRPA or a call for an interpretation of the
substance of the Ordinance, for which a stronger argu-
ment for a uniform limitations period exists. By leaving
intact the normal local land use planning procedures in
the case of default approvals, different practices were
necessarily foreseen by the draftsmen of the Ordinance.
=-_- 18 —
So long as review of local zoning approvals is not barred
altogether or unreasonably restricted by the state re-
view provisions, differences in limitations periods can-
not be said to disrupt the effectiveness of the Compact.
Appellants, nonetheless, contend that they assert a
federally created right for equitable relief, to which
state limitations should not apply. Holmberg v. Arm-
brecht, 327 U.S. 392, 395-98 (1948); Willis v. Reddin, 418
F.2d 702 (9th Cir. 1969). That doctrine has no applica-
tion in this case. Nor can this case be characterized as a
federal action seeking the vindication of a public right.
Occidental Life Insurance Co. v. EEOC, 432 U.S. 355,
366-72 (1977), affg 535 F.2d 533, 537 (9th Cir. 1976).
Here we sit neither as a court in a diversity action, apply-
ing state law, nor as a court interpreting a purely federal
statutory right and borrowing an appropriate state limi-
tations period. Rather we sit to prevent an impairment
of the effective functioning of the Compact. As we see
it, this functioning is best promoted by adhering closely
to both the letter and the spirit of the Compact and
Ordinance.
So inclined, we are convinced that the Ordinance de-
fers issues of local permit issuance validity to state deter-
minations.'° Only when the state determination
misinterprets the Compact or the ordinances, or its pro-
cedure fails to provide adequate review to assure com-
pliance with the local procedures, should we impose a
federal limitations period whether that period be bor-
rowed or cast in the form of laches. The distinction
between the position we occupy in this proceeding and
== 19 ..
that when applying a federal statute is underscored
when it is remembered that under the Compact each
State reserved the power to withdraw from the Com-
pact at any time without federal approval. Compact,
Article VIII(c). The states, California and Nevada, are
thus the primary source of our charter. It is consistent
with this reality ordinarily to allow state procedures to
control.
The district court held that these actions were barred
by Nevada Revised Statutes § 278.027.!! That section re-
quires that an action to review a land use classification
or any special use or variance authorized by N.RS.
§§ 278.010 to 278.030, inclusive, must be commenced
within 25 days of the filing of final notice of the action.
Nevada Revised Statutes § 278.025(1) subordinates the
powers of local zoning authorities to those of the TRPA,
but provides that such local powers shall be exercised
wherever appropriate in furtherance of a plan adopted
by the TRPA. Thus, administrative permits issued under
the delegated powers of the Land Use Ordinance are
authorized by the applicable statutory provisions and
subject to the 25-day limitation in N.R.S. § 278.027.
This latter statute was construed in the Nevada state
court action which was commenced by the League and
filed within the 25-day limitation period. In that action,
the Nevada Supreme Court, as indicated above, upheld
the trial court’s dismissal of the action on the ground
that the League had failed to comply with a prerequisite
for bringing suit, i.e., that the League had failed to quali-
fy to do business as a corporation prior to filing its com-
oe
plaint. League to Save Lake Tahoe v. Tahoe Regional
Planning Agency, 563 P.2d 582 (Nev. 1977). The court
also stated, however, that the League could not refile its
suit. The court construed N.R.S. § 278.027 to bar actions
commenced more than 25 days after a permit is
“deemed approved” through TRPA inaction. For the
purposes of these proceedings we adopt Nevada's con-
struction of IN.R.S. § 278.027. The appellants’ challenge of
the Douglas County permits in these proceedings are
thus barred by N.R.S. § 278.027."*
In so holding, we emphasize that effective land use
decisions in particular must be reliable. Those who go
before administrative agencies with development
projects after a certain period should be allowed to rely
on a decision rendered by the particular agency. Of
course a balance must be struck between the conven-
ience of developers on the one hand and, on the other
hand, the public interest in assuring that laws enacted to
protect land use planning are not circumvented by cur-
sory administrative action that becomes unreviewable
before the public becomes informed. N.R.S. § 278.027, as
construed by the Nevada Supreme Court, permits no
such circumvention. It bars review of administrative
permits granted under TRPA standards unless an action
is filed within 25 days of the time that the permit is
“deemed approved” by TRPA inaction.'® A permit is
“deemed approved” only if the TRPA takes no action
within 60 days of submittal to the agency. When a per-
mit receives a default approval, parties concerned with
administrative action of a local permit-issuing authority
a
in Nevada thus have 85 days from the public filing of the
permit by the local permit granting authority with the
TRPA to investigate the existence of a cause of action.
This minimum 85-day period from local permit issuance
is not so short a period that concerned parties are barred
effectively from assuring compliance with proper proce-
dures. The fact that one such party managed to meet the
mig on this case indicates the manageability of this
t.
Therefore the Douglas County Commissioners’ action
cannot be challenged because of an alleged deficiency
in its administrative discharge. Inasmuch as the permits
were thereafter deemed approved by the TRPA and
have been found not to violate the substantive terms of
the Ordinance, they are valid in all respects.
Vi. Federal Common Law Nuisance Claim.
Finally, we turn to the request by the State of Califor-
nia and the CTRPA that Jennings’, Kahle’s and Harvey’s
projects be enjoined on the ground that their develop-
ment will result in an interstate nuisance. They premise
this claim not on any statute, but upon federal common
law. The district court dismissed the claim. As we hold
that the appellants did not state a claim for common law
nuisance under these circumstances, we affirm.
Appellants do not seek to stop an existing activity on
the part of appellees that constitutes a nuisance extend-
ing across state boundaries. Instead they seek to enjoin
a threatened or apprehended nuisance. Before deter-
mining whether appellants’ action will be suck under
_ -e
these circumstances, we must decide whether this com-
mon law remedy has been precluded by Congressional
action.
Appellees contend that even if an action for federal
common law nuisance exists, such action is precluded
either by the Compact itself, the Clean Air Act, or the
Federal Water Pollution Control Act (FWPCA). When
Congress approved the Compact, it appended Article
VIII, § 5 to the Compact specifically providing:
{NJothing contained in this Act or in the compact
consented to shall in any way affect. . . the applica-
bility of any law or regulation of the United States in,
over, or to the region or waters which are the subject
of this compact... .
We believe this provision clearly indicates that the Com-
pact itself does not preclude the application of federal
common law nuisance doctrines. However, although the
Compact does not affect the applicability of federal
common law nuisance principles, the operation of the
Compact may influence the factors that should be
weighed in applying these principles and doctrines. It is
clear, however, that given an appropriate situation, such
an action may be maintained.
The federal pollution control laws also do not pre-
clude this action. The Clean Air Act and the FWPCA
each have “citizen suits” provisions professing not to
“restrict any right which any person. . . may have un-
der any statute or common law ... .” 42 U.S.C.
§ 7604(e), 33 U.S.C. § 1365(e). This exclusion is even
broader than that present in the Compact. Moreover,
the Supreme Court held in 1972 that the FWPCA had
ea.
not yet occupied the field, I//inois v. City of Milwaukee,
406 U.S. 91 (1972), and courts have continued so to hold
even after the enactment of the 1972 amendments. J/-
linois ex rel. Scott v. City of Milwaukee, 366 F. Supp. 298
(N.D. Ill. 1973); United States ex rel. Scott v. United
States Steel Corp., 356 F. Supp. 556, 559 (N.D. Ill. 1973);
United States v. Ira S. Bushey & Sons, Inc., 346 F. Supp.
145, 149 (D. Vt. 1972), aff'd, 487 F.2d 1393 (2d Cir. 1973),
cert. denied, 417 U.S. 976 (1974). See United States v.
Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974) , cert.
denied, 420 U.S. 927 (1975). We decline the invitation to
draw a different conclusion. |
The Supreme Court has recognized the validity of
federal common law nuisance actions instituted by one
state to enjoin damaging activities carried on in another.
Illinois v. City of Milwaukee, 406 U.S. 91 (1972); Georgia
v. Tennessee Copper Co., 206 U.S. 230 (1907); Missouri
v. Illinois, 180 U.S. 208 (1901). And the equitable powers
of the federal courts are not limited to stopping nui-
sances already in operation. Long ago the Supreme
Court noted that courts of equity “can, not only prevent
nuisances that are threatened, and before irreparable
mischief ensues, but arrest or abate those in progress
.... Mugler v. Kansas, 123 U.S. 623, 673 (1887). The
exercise of these equitable powers, however, requires
great certainty, and the standards for enjoining a threat-
ened nuisance are stricter than those for stopping an
existing nuisance.'*
wesliias
{I]t is settled that an injunction to restrain a nuisance
will issue only in cases where the fact of nuisance is
made out upon determinate and satisfactory evi-
dence; that if the evidence be conflicting and the
injury be doubtful, that conflict and doubt will be a
ground for withholding an injunction; and that,
where interposition by injunction is sought, to re-
strain that which it is apprehended will create a nui-
sance . . . the proofs must show such a state of facts
as will manifest the danger to be rea/ and immediate.
Missouri v. Illinois, 180 U.S. at 248 (emphasis added).
Appellants assert that appellees’ projects indirectly
will create a nuisance—that they will attract more
people and cars to the Basin, and that inevitably a nui-
sance will result. We cannot agree. Appellants’ allega-
tion is insufficient to establish that the danger of a
nuisance in this case is real and immediate. Without
more, appellants at this preliminary stage have not met
the requirements set forth in Missouri v. Illinois, supra.
In so holding we must remember that these projects
have passed through the gauntlet of approval estab-
lished by the Compact and the Ordinance.'* The record
before the district court manifests the conflicting evi-
dence as to the degree of potential injury. This court
cannot set its face against these facts merely because we
as citizens might prefer that all development be barred
from the Tahoe Basin. Much of modern life is distasteful,
but the federal common law of nuisance bestows upon
us no power to root out that which happens to offend
both us and a vigorous plaintiff.
Only two previous federal cases have involved threat-
ened nuisances. Neither provides a precedent for what
the appellants seek here. In Missouri v. Illinois, supra,
Missouri brought a direct suit in the Supreme Court to
enjoin Mlinois and the Sanitary District of Chicago from
using a channel built to divert 1,500 tons of untreated
sewage a day from Lake Michigan to tributaries which
joined the Mississippi River 43 miles above St. Louis. The
Court stated that the case involved a bill alleging, in
explicit terms, that “damage and irreparable injury
would naturally and necessarily be occasioned by acts of
the defendants. . ..” 180 U.S. at 248. In this case, no such
direct and immediate connection exists. Moreover, by
the time the Supreme Court decided the case, the chan-
nel had been in operation one year and the real and
immediate threat of a nuisance had become a pollution-
ful reality.
In a more recent case, Texas v. Pankey, 441 F.2d 236
(10th Cir. 1971), the Tenth Circuit recognized that a
threatened nuisance could be enjoined. It reversed a
district court dismissal for lack of jurisdiction of a federal
common law negligence action to enjoin the use, both
actual and threatened, of a certain pesticide on lands
that drained into a river flowing into Texas. Both the
district court and the Tenth Circuit Court initially had
denied preliminary injunctions. By the time the circuit
court issued its opinion holding that federal jurisdiction
existed, actual spraying had occurred. To avoid the de-
fendant’s suggestion that the suit was moot, the court
characterized the action as one to enjoin further spray-
ing. The opinion does not discuss the problems that nor-
mally attend an effort to enjoin a threatened nuisance.
This case is unique. California entered a Compact,
lafér approved by Congress, to help coordinate and con-
trol growth and development in the Tahoe Basin. As
equal parties in the interstate agency developed under
the Compact, California participated in the adoption of
a regional plan and ordinances to regulate new construc-
tion in the Basin. Pursuant to established procedures the
appellants’ projects, which do not violate the ordi-
nances’ substantive provisions, have been approved.
Now California seeks to prevent construction of these
projects by invoking the equitable powers of the federal
courts to enjoin interstate nuisances. Fundamentally, it
contends the projects will harm the environment of the
region. This may be so, but not every injury to the envi-
ronment is a nuisance under the federal common law. A
fortiori, not every threatened injury can be enjoined as
a potential nuisance. The line is not a bright one, but we
cannot consider high rise hotels and their occupants as
indistinguishable from untreated sewage, noxious gases,
and poisonous pesticides.
We therefore affirm the judgment of the district court
and lift our injunction preventing Harvey’s from com-
mencing construction.
AFFIRMED.
att tke
FOOTNOTES
' The State of California and the CTRPA have abandoned their
wees against Park, therefore the federal common law interstate
n ce action remains only against the other Cony
2 The Nevada Tahoe Regional Planning Agency ( PA) did not
come into existence as a functioning legal ey until April 30
1973, ten days after the vesenes Coun mmissioners a proved
the Park permit. Nevertheless, the Park project received ap-
roval from NTRPA on ne 14, 197
® on 4.10 of the Land Use ce specifies two instances in
which a permit is required before construction of a project can
be commenced: (1) any project that will cover more 200
square feet; (2) any construction that requires an administrative
permit or variance permit under one or more of the substantive
requirements of other sections of the Ordinance. Section 4.30 sets
out the process for Agency review of these locally issued ts.
Permits issued under § 4.10(1) above do not require TRPA re-
view. ($431). The local permit-issuing authority must notify
TRPA of ali applications for and issuances of permits. Section 4.34
requires that permits issued under § 4.10(2) , such as those at issue
in this case, be screened by the TRPA staff for review. The staff
then must make a report with a recommendation to the TRPA
and oa hecies Cormar Caamaieien wer votpomabie 60 noth
an u un on was r e to no
TRPA that the Broeny issued.
«The TRPA staff recommended denial of the Jennings and Kahle
permits, but on July 25, 1974 the TRPA failed to reach a dual
majority. Although all five California representatives voted
against the projects, three of the five Nevada representatives
voted for approval. The Harvey’s Project also received a negative
staff recommendation, but four of five Nevada representatives
and two of five California representatives voted to approve the
project. Park's project had a positive staff recommendation, but
a majority of California representatives voted against the
roject.
° dootuee this federal question is substantial, dant jurisdiction
supported the district court’s treatment of the attack on the pro-
cedural aspects of the Douglas County action. We therefore need
- wae whether a simp eran 7 henge Aa cor ey grant
a permit-issuing au ty un Ordinance w
itself su federal jurisdiction.
* Section 7.13 of the Or provides, in part:
No building or other structure erected in any land use district
shall have a height ter than that ed below except
that the permit- authority, by administrative permit
pursuant to 8.33, may authorize a greater height to the extent
——
a,
that the permit-issuing authority determines that (1) provision
has been made for ection from fire hazards and against
aviation accidents; (2) consideration has been given to the
protection of view and to the character of the neighborhood;
(3) proper provision has been made for light and air; and (4)
such greater height will better promote the protection of the
environment in the area. Only those administrative —
that allow a building or other structure of a height of 45 feet or
nae shall be subject to Agency review pursuant to Section
7 This court previously isolated the task a court must face in ap-
proaching the Compact and the Land Use Ordinance:
California makes a critical error in likening the Compact to
ordinary. soning l tion and the TRPA to a typical zoning
board. In in the provisions of the unique statutory
scheme involved here we must look not to Robert's Rules of
Order or decisions dealing with the votes of zoning boards, but
instead to the actual e used, as viewed against the back-
drop of the Compact’s oe history.
ex rel. Younger v. Regional Planning Agency, 516
F.2d at 218.
® Section 8.33 states:
eee a ow be issued nef ne eng A vag uses vf
purposes for w such permits are r terms o
this ordinance. Such permit may be ranted only if it is found
by the permit-issuing authority that the establishment, mainte-
nance, or operation of the use or purpose in the cular case
is not detrimental to health, safety, peace, morals, comfort and
pase welfare of persons residing or wor in the neighbor-
of such proposed use, or detrimental or injurious to prop-
ony ae pee wesene in the neighborhood or to the general
we of on, and will not cause ay substantial harm-
ful environmental consequences on the land of the applicant or
on other lands or waters.
® Appellants make the ar nt that this Ordinance provision is
olated as a matter of law when no trade-off is established
between height and land coverage. Because in this case such a
trade-off , we do not reach appellants’ contention.
‘© Because whether substantial evidence supported the local deter-
mination or whether written findings of the local permit-issuing
neers oe somnnad Secate ts of the local permit-issuing
and e these are issues of state law and not inter-
pretations Ordinance. They can therefore be reviewed
only to the extent the state ures allow review, so long as
some for challe exists.
ittmeameiia
278.027 Ji relief, review of actions, decisions of governing 3
bodies: Time for commencement. No action or proceedin
shall be commenced for the purpose of seeking judicial relief
a= 99 ..
or review from or with respect to any final action, decision or
order of any governing body, commission or board granting or
changing any land use classification or granting an al use
or variance authorized by N.R.S. §§ 278.010 to 278.030, inclu-
sive, unless such action or proceeding is commenced within 25
days from the date of filing of notice of such final action with
the clerk or secretary of such governing body, commission or
'2 We reject the State of California’s argument that limitations are
not space to it because it is a sovereign. Irrespective of the
validity of this argument otherwise, California is not a sovereign
to enforce pr ural compliance with Nevada local land use
planning decisions.
se peg cpee also assert that § 278.027 requires the filing of notice
al action with the clerk or secretary of the local -
issuing authority after the default approval and that no such filing
was made with Douglas County in this case. The Nevada Su-
preme Court, however, construed the statute to preclude actions
commenced more than 25 days after an action was “deemed
approved.” to Save Tahoe v. Tahoe Regional Plan-
ning Agency, P.2d 582 (Nev. 1977). The court did not discuss
the filing question. By hol as it did, however, the court ap-
ars not to require a filing su uent to the default approval.
e adopt this view.
‘4 The standard courts have ny “Ty to threatened nuisances has
been distilled in 58 Am. Jur. 147, pp. 724-26:
{I}t is established that a court of equity may enjoin a threatened
or anticipated nuisance, public or private, where it clearly ap-
peers that a nuisance necessarily result from the contem-
plated act... .
A proposed use of land will not be restrained where it will
not inevitably constitute a nuisance. If the complainant's right
is doubtful, or the thing which it is sought to restrain . . . will
not ge reeot 4 become a nuisance, but may or may not become
such, depending on the use or manner of operation, or other
circumstances, equity will not interfere.
Id. (em hasis added, footnotes omitted), citing Missouri v. II-
linois, 180 U.S. 208 (1901). :
'®In holding that the Compact approval mechanism affects the
viability of an anticipatory federal common law nuisance action,
we do not imply that governmental approval of these projects
precludes a nuisance action at such time in the future as r-
nia can allege that it clearly appears that a nuisance necessarily
will result. We hold only that at this time a prospective nuisance
cannot necessarily result from this pro t which does not conflict
with the ny eye plan adopted by states under the Compact
and which has been approved in compliance with the Land Use
Ordinance adopted by the TRPA.
i. pe
APPENDIX B
an
UNITED STATES COURT
OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA TAHOE REGIONAL PLAN-
NING AGENCY and PEOPLE OF THE
STATE OF CALIFORNIA,
Plaintiffs-Appellants,
vs.
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK CAT-
TLE CO., and COUNTY OF DOUGLAS,
Defendants-Appellees.
LEAGUE TO SAVE LAKE TAHOE; and THE
SIERRA CLUB,
Plaintiffs-Appellants,
vs.
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK CAT-
TLE CO.; DEL WEBB INTERNATIONAL,
INC.; COUNTY OF DOUGLAS,
Defendants-Appellees.
a
of
NOS. 78-1160
78-1224
ORDER
pn ae
Before: MERRILL and SNEED, Circuit Judges, and
LINDBERG,* District Judge
The panel as constituted in the above case has voted
to deny the petition for rehearing. Judge Sneed has vot-
ed to reject the suggestion for a rehearing in banc, and
Judges Merrill and Lindberg have recommended rejec-
tion of the suggestion for rehearing in banc.
The full court has been advised of the suggestion for
in banc rehearing, and no judge of the court has request-
ed a vote on the suggestion for rehearing in banc. Fed.
R. App. P. 35(b).
The petition for rehearing is denied and the sugges-
tion for a rehearing in banc is rejected.
* Hon. William J. Lindberg, Senior United States District Judge, for
the District of Washington, sitting by designation.
APPENDIX C
nk OR tin
IN THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEVADA
HONORABLE BRUCE R. THOMPSON, JUDGE
CALIFORNIA TAHOE REGIONAL PLAN-
NING AGENCY; and PEOPLE OF THE
STATE OF CALIFORNIA,
Plaintiffs,
vs.
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK
CATTLE CO.; and COUNTY OF DOU-
GLAS,
Defendants.
LEAGUE TO SAVE LAKE TAHOE; SI-
ERRA CLUB,
Plaintiffs,
vs.
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK
CATTLE CO.; DEL WEBB INTERNA-
TIONAL, INC.; COUNTY OF DOUGLAS,
Defendants.
. No. R-77-0158-BRT
| No, R-77-0159-BRT
a
REPORTER'S TRANSCRIPT OF PROCEEDINGS
VOLUME Ill
Pages 332 to 525
ALLAN D. BUNNELL,
Official Reporter.
Reno, Nevada, Thursday, October 20, 1977, 9:00 o’clock a.m.
THE COURT: This morning we have two separate
actions before the Court: California Tahoe Regional
Planning Agency and People of the State of California
against Ted Jennings, Oliver Kahle, Harvey’s Wagon
Wheel, Park Ca**!e Company and the County of Dou-
glas; and, also, the action of the League to Save Lake
Tahoe and the Sierra Club against Ted Jennings, Oliver
Kahle, Harvey’s Wagon Wheel, Park Cattle Company,
Del Webb International, Inc., and the County of Dou-
glas.
Inasmuch as Del Webb International, Inc., has been
dismissed as a defendant, the defendants in each case
are identical; and the issues involved in each case are
identical except insofar as the standing of any particular
plaintiff to maintain the action is concerned.
Most of the problems presented in these cases are far
from new. Initially, the League to Save Lake Tahoe and
others, as plaintiffs, brought an action in the Eastern
District of California against the Tahoe Regional Plan-
ning Agency and certain individual defendants; Thomas .
Raley, Park Cattle Company and Harvey’s Wagon
=
Wheel; two of those defendants being involved in the
instant actions before this Court.
The thrust of that particular complaint was that the
Tahoe Regional Planning Agency itself had failed to
comply with the provisions of the Interstate Compact,
had conducted itself in violation of the provisions of the
Interstate Compact, and had granted approval to the
development of projects of the defendants Thomas Ra-
ley, Park Cattle Company and Harvey’s Wagon Wheel
in violation of the Compact.
The legal issue involved in the particular case was
whether or not Federal question jurisdiction could be
predicated upon an alleged violation of or an alleged
misinterpretation of the provisions of an interstate com-
pact. And the opinion of the Ninth Circuit Court of
Appeals, written by District Judge Renfrew, sustained
jurisdiction under 28 USC 1331 (a) over a case involving
the construction of the Tahoe Regional Compact. That
case was then returned to the District court for the
Eastern District of California for further proceedings. In
the meantime the State of California on the relation of
the Attorney General of California brought an action in
this court entitled People of the State of California on
Relation of Evelle Younger, Attorney General, against
the Tahoe Regional Planning Agency. The named de-
fendants in that case were Mr. Ted Jennings, who is a
defendant in these cases; Mr. Oliver Kahle, who is a
defendant in these cases. And in that action it was con-
tended that the granting of administrative permits for
the construction of the two hotels contemplated by Mr.
en
Jennings and Mr. Kahle was in violation of the Interstate
Compact, and that they should be enjoined because the
constitution of the Tahoe Regional Planning Agency;
namely, the Interstate Compact, had to be interpreted
so as to ignore the plain language of the Compact and
not to give effect to the provision for automatic approval
of a proposal where a dual majority against the proposal
had not been obtained by vote of the Agency.
I think it is important that we recall the provision of
the opinion in 516 F. 2nd 215, as follows:
“By virtue of Article VI (k), which provides in
such a case that the project be deemed approved,
the decision of the local permit-issuing authority in
effect stand affirmed. Such a reading of the Com-
pact, notwithstanding California’s protestations to
the contrary, does not gut its provisions nor frus-
trate its purposes. The District Court's interpreta-
tion of Articles III (g) and VI (k), which we affirm,
gives effect to the statutory scheme carefully de-
vised by two states reluctant to relinquish very
much sovereignty. That the Compact may not be a
powerful anti-growth measure in that it permits the
majority of one state to stop effective action by the
TRPA is not the result of a court-imposed interpre-
tation but of the deliberate action by the Legisla-
tures of Nevada and California and the Congress of
the United States.
“This Court is not empowered to rewrite the
Compact. California’s remedy lies solely with the
legislative branches of the parties to the Compact.”
I might comment on that statement. As we all know,
an effort has been made, and I think the effort is proba-
bly still continuing, to reach an accord between the two
a= 4}
state governments with respect to an appropriate modi-
fication of the Interstate Compact. As a consequence of
the contentions that have been made in this case, it
occurs to me that that is not the only possible effective
solution to a continuation of the problems which some
people, including the plaintiffs, think exist with respect
to the administration by the Douglas County Commis-
sioners of the powers granted to Douglas County as the
permit-granting authority, not only under the Compact
but under the Land Use Ordinance.
The Tahoe Regional Planning Commission is com-
prised of ten members: A representative of El] Dorado
County, California; a representative of Placer County,
California; a representative of the City of South Lake
Tahoe; an appointee by the Governor of California, and
a person who—I don’t recall the exact name of the Cali-
fornia agency, but he is in effect the Director of the
Department of Environmental Resources, or something
to that effect. He has a counterpart on the Board from
the State of Nevada; and the State of Nevada is repre-
sented by people from Douglas County, Ormsby County
and Washoe County, plus the Governor’s appointee and
the Director of the Division of Environmental Protec-
tion and Natural Resources.
The problem here respecting height limitation is not
caused by anything in the Compact; it is created by the
formulation of the Land Use Ordinance, which is a prod-
uct of the Tahoe Regional Planning Agency and is sub-
ject to amendment and modification by that Agency.
I imagine that anyone trained in zoning and land use
———oo— CUO eee eee, Lee eee
Sei
planning would throw up his hands at the suggestion
that I am about to make and say that in any reasonable
zoning ordinance you have to have some provisions for
flexibility. But situations alter cases; and because of the
peculiar situation here, if there is to be any peace in the
area of South Lake Tahoe with respect to the possible
future proliferation of high-rise-casino development, I
think it could be curtailed very effectively by the adop-
tion of an absolute, unchangeable height-limitation ordi-
nance. If there were such an ordinance adopted by the
TRPA, we wouldn’t have these problems of approval by
operation of law because of failure to obtain the dual
majority.
If they had an absolute height-limitation ordinance,
not subject to variance or not subject to administrative
permit, there could be no further high-rise develop-
ment anyplace in Lake Tahoe.
I recognize that this may not be scientific land use _
planning, but it may be necessary in these circum-
stances, and I think it quite possible that such an ordi-
nance could be adopted.
We had a very strong effort by the Nevada Legisla-
ture, under the leadership of Governor Mike O’Callag-
han, to bring about a change in the Tahoe Regional
Compact. Such a change has not finally become effec-
tive. But there are two members on the Nevada side
who are at least friends of the Governor. One is his
direct appointee and the other is an appointee of his as_
Director of the Environmental and Natural Resources
Division of the Nevada government. And there is only
ee
one County Commissioner who has had much interest in
maintaining the status quo, and that is the representa-
tive from Douglas County.
Geographically, t' 2 County Commissioner from
Ormsby County might be persuaded to take a very en-
lightened view of this situation, because the great bulk
of Ormsby County that lies in the Tahoe Basin is now in
a state park and is not subject to much development
anyway. I also think it quite probable that the represent-
ative of Washoe County would not be as adamant about
control of the casino development in the Washoe
County area of Lake Tahoe, as has been evidence by the
many actions taken by the Douglas County Commission-
ers.
So I just throw that out as a possibility of some relief
to anybody who thinks this is a serious problem, al-
though I, as you will shortly find out, think that the horse
long ago escaped the barn with respect to the four par-
ticular projects that are being attacked in this litigation.
There may be some hope for the future which does not
necessarily involve the State of California and the State
of Nevada seeing eye to eye on a modification of the
Interstate Compact.
After California was successful or unsuccessful in their
effort to emasculate the dual majority provision of the
Interstate Compact, despite the fact—and this occurred
in November, 1974, when the State of California, at least
in its subdivision the California Regional Pianning
Agency—and I hasten to state that I don’t think that the
joinder of the California Tahoe Regional Planning
a le
Agency as a plaintiff in this case assists at all with respect
to the problems presented. The State of California .at
that time knew about this footnote, which has been
much discussed, in Judge Choy’s opinion:
“California also argues that such an interpretation
would allow construction of projects that are in bla-
tant violation of the Regional Plan. Two responses
’ are appropriate. First: that TRPA chose to vest vari-
ance-granting power in the local authorities and set
up guidelines for them to follow; second, and more
important, if the local authorities violate the various
guidelines and other ordinances in granting per-
mits, either state, as well as the TRPA, has a right to
bring action in State or Federal Court seeking com-
pliance with the Regional Plan and the TRPA’s
regulations.”
I am frank to say I don’t know what was meant or
contemplated by that statement.
As will shortly become apparent, I have carefully re-
viewed the TRPA regulations, and it is hard for me to see
how in any respect these administrative permits, per-
mitting the construction of the projects under consider-
ation, were obtained in violation of the TRPA’s rules and
regulations. And if the Court of Appeals by that footnote
intended to set up the Federal District Courts as a court
of general review over the administration of the Land
Use Ordinances of the Tahoe Regional Planning
Agency, they are going to have to say it a lot plainer than
that. That statement, if it is intended to be effective law,
should be the first headnote in the case and not a foot-
note at the end of the case.
I recognize that under the case of League to Save
ee een
Lake Tahoe against B.J.K. Corporation, that if there is
presented to the Court a problem of interpretation of
the Land Use Ordinance, which has a basin-wide effect,
and which calls for uniformity in interpretation and ap-
plication, that that is a federal question which vests fed-
eral jurisdiction in this Court. Consequently, I accept
federal jurisdiction in these two cases because of the
plaintiffs contention that the Tahoe Land Use Ordi-
nance, as enacted, set up arbitrary height limitations;
and that the proper interpretation of the ordinance is
that those height limitations were not to be exceeded
except in certain exceptional circumstances which re-
quired rather elaborate hearings and the production of
evidence. So that contention being made, I think that
under League to Save Lake Tahoe against B.J.K., we do
have a federal question presented which has to be dealt
with.
But to get back to the League to Save Lake Tahoe
against the Tahoe Regional Planning Agency, after
Judge Renfrew and his cohorts on the Court decided
that an interpretation of the Compact involved a federal
question, the case went back to the Eastern District of
California. There were further hearings, and three of
the defendants, I believe all three of them; Thomas Ra-
ley, Park Cattle Company and Harvey’s Wagon Wheel,
were dismissed on the theory that they were not neces-
sary or proper parties to the case, if I understand the
situation correctly. And it is noted in the Court of Ap-
peals’ opinion as follows—the opinion refers to the ear-
lier case that I referred to in 507 F. 2nd 517. It says:
sidalilasias
“That case set forth the factual background and
we will only briefly summarize the focus of the com-
plaint. Basically appellants brought this action seek-
ing declaratory and injunctive relief, alleging that
TRPA has failed in several particulars to comply
with the legal requirements of the Compact. As it
pertains to the developers, the complaint alleges
that TRPA violated the Compact by approving the
development projects of Thomas Raley, Park Cattle
Company and Harvey’s Wagon Wheel, Inc.”
The opinion went on to hold that although the individ-
ual defendants didn’t have any responsibility with re-
spect to the promulgation or administration of the Land
Use Ordinances, they were proper parties because it was
essential to have them before the Court in order to give
effective relief if relief should be granted. But this case
is still pending, and with respect to the defendant Park
Cattle Company it was recently dismissed by Judge Bat-
tin and a motion for preliminary injunction was denied,
which was sought to enjoin the very construction
projects which these plaintiffs seek to enjoin in this
Court.
As Mr. Silver has indicated, this latest decision with
respect to Park Cattle Company alone is now going to
be before the Court of Appeals again, initially on a mo-
tion for an emergency injunctive relief.
Both of the Court of Appeals’ opinions in the Sacra-
mento case; that is, the League to Save Lake Tahoe
against Tahoe Regional Planning Agency, Park Cattle
Company and Harvey’s Wagon Wheel, indicate that all
the issues that are present before me in these two cases
— ee
may very well be involved in those cases in California;
that the action is still pending there and that this case
here is in reality a duplication.
I can’t say specifically from reading these opinions—
and I know that there are pleadings and evidence before
the Court which clarify the situation somewhat—that
the exact contention made here with respect to the in-
terpretation of Section 7.13 of the Tahoe Planning
Agency Land Use Ordinance was present before that
Court. But if it hasn’t been, it should have been, because
it is all one ball of wax, and it is pretty hard to talk about
not properly promulgating and administering ordi-
nances to enforce the Tahoe Regional Compact, particu-
larly with respect to these two projects, without getting ©
involved in the height of the buildings and the environ-
mental impact that would be caused by the influx of
tourists and permanent residents to the South Lake
Tahoe area.
In addition to the federal litigation that has been gen-
erated by these plaintiffs, we have the case of League to
Save Lake Tahoe against Tahoe Regional Planning
Agency, Oliver Kahle, Ted Jennings and Harvey’s Wag-
on Wheel. There is a doctrine in criminal law of selective
prosecution, and on rare occasions the criminal defend-
ant has been able to have an indictment dismissed be-
cause he was able to demonstrate that he was the only
person in the area who had been picked out to face a
serious charge such as was made against him.
I don’t understand why all these cases have all these
different defendants. The State of California in this
2 _
a
Court sued Ted Jennings and Oliver Kahle, the League
to Save Lake Tahoe in the Eastern District of California
sued Harvey’s Wagon Wheel and Raley’s and Park Cat-
tle Company. They decide to make an effort in the Ne-
vada State Court System and they sue Oliver Kahle, Ted
Jennings and Harvey’s Wagon Wheel.
I don’t understand that the deal that was made, what-
ever it was, with Park Cattle Company in an earlier case
by the League to Save Lake Tahoe that involved it, and
which ended up in a dismissal without prejudice, justi-
fied leaving Park Cattle Company out of that case; and
plaintiff's attorneys apparently didn’t believe that that
situation immunized Park Cattle Company from be-
coming a defendant in these two cases.
In the Nevada case the League to Save Lake Tahoe on
the face of it was making a very sincere effort to make
the system work. They said, “Well, if we had a question
here regarding whether these administrative permits
should have been promulgated by the Douglas County
Commissioners and approved by the Tahoe Regional
Planning Agency, the remedy is set up by the Nevada
law under the dictates of the Tahoe Regional Planning
Ordinance and we will follow that procedure.” But un-
fortunately they stubbed their toe in the course of
events and didn’t get a determination on the merits,
except from one point of view. It is clear to me from the
opinion of the Supreme Court of Nevada that with re-
spect to administrative permits granted by Boards of
County Commissioners of Washoe, Ormsby or Douglas
County, and submitted to the TRPA for approval, the
a 49 o
provisions of Section 278.027 of the Nevada Revised Stat-
utes apply to such administrative permits, and are the
method of judicial review provided by the State of Ne-
vada to find out whether the local permit-granting au-
thority had violated the guidelines or the provisions of
the various ordinances under which they were required
to proceed.
As I indicated yesterday, that section does not limit
judicial review to any particular court. I say that because
there are statutory provisions in many states which do
say that if you are going to review this administrative
decision, you have to go into the First Judicial District
Court or whatever. But this particular statute permits _
review of the decision of the Board of County Commis-
sioners granting a variance or special use permit or
changing a land use classification to be instituted in any
court having jurisdiction; and if federal question juris-
diction is present, this Court would have jurisdiction
under that statute.
I have indicated that in view of the contention that
Section 7.13 of the Land Use Ordinance provides a defi-
nite height limitation, and any departure from it is a
variance, I think there is Federal question jurisdiction
and this Court would have jurisdiction of such an ad-
ministrative review within the limitations fixed by the
Nevada statute.
These actions were not instituted within twenty-five
days after final action by the Tahoe Regional Planning
Agency v:ider the interpretation by the Supreme Court
of Nevada, as follows:
— vn
“If Agency review does occur and TRPA either
approves, requires modification of, or rejects the
decision of the permit-issuing authority, final action
is taken at that point in time and judicial review
must be sought within twenty-five days thereafter.”
There is another example of the use of the English
language which communicates something very definite-
ly to me which seems to escape piaintiffs counsel.
If we are to consider these actions as direct review of
the way in which the permit-granting authority handled
themselves or itself in these four cases, the actions are
barred by the Nevada statute.
I am not going to segregate this discussion according
to the types of motions that are before the Court, be-
cause most of my comments apply to the motion to dis-
miss, the motion for summary judgment and also the
motion for preliminary injunction. All these cases in
varying degrees present very clear instances for the ap-
plication of the equitable doctrine of laches as a matter
of law. Whatever rights the plaintiffs have under their
distorted interpretation of the Tahoe Land Use Ordi-
nance were available and readily apparent as soon as the
Court of Appeals for the Ninth Circuit promulgated the
first Younger opinion.
It has been explained in oral argument, and I will not
repeat it here, that the plaintiffs have never effectively
sought and followed through with injunctive relief
against these projects. Concededly th>re are precedents
in which there have been plain and obvious violations of
statutes where it is not necessary, in order to avoid a~
claim of laches to seek affirmative injunction relief, but
== 5)
these are not cases of that type.
When the first Younger case was brought, this very
contention with respect to the invariability of the height
limitations under the Land Use Ordinance might have
been included and should have been included in order
not to separate or divide the causes of action.
Recognizing that all these problems were novel, and
at that time the State of California was primarily inter-
ested in the problem of dual majority and what could be
done to solve the situation under Subsection (k) with
respect to deemed approval of a project where a dual
majority vote either for or against had not occurred, and
realizing that the opinion of the Court of Appeals for the
Ninth Circuit dealt primarily with that problem, I think
that if the State at that time had seen fit to seek to file
an amended complaint, alleging the matters which it
alleges now in these two actions, brought some three or
four years later, that would have been permitted, or that
even a new action brought at that time making a timely
assertion of these contentions would have been permit-
ted. But that was not done. Everyone slept on their
rights except the League to Save Lake Tahoe, which if
I understand correctly brought two actions in Douglas
County and dismissed one and failed to jump a proce-
dural hurdle in the other. But in none of those cases was
there any effective effort made to stop the construction
of these projects.
Where you do have a situation where plaintiffs are
permitting citizens to go ahead in reliance upon permits
that have been granted, especially permits that on the
— §3
face of them have been approved expressly, not only in
the Federal Trial Court, but by a Federal Appellate
Court, and substantial sums of money are expended in
reliance on those permits, belated and delayed actions
such as these two are barred by laches as a matter of law.
At least with respect to two of the defendants, Har-
vey’s and Park Cattle Company, there is another action
pending, which may not be barred by laches, in which
the plaintiffs can seek to obtain whatever relief they are
entitled to.
On the merits, I have listened carefully to the presen-
tations by counsel, have read a good portion of the
record before the Court, and I think it is a fair conclusion
from the record that with respect to each of the four
applications for administrative permits that are involved
in these cases, the County Commissioners of Douglas
County were required to have presented to them exten-
sive information with respect to the conditions which
the Land Use Ordinance, Section 7.13 and Section 8.33,
required to be met before any height variation could be
granted, except for a five-foot variation. It seems to me
that at the time the administrative permits were grant-
ed a very serious effort was made to make the decisions
required to be made in order to comply with the re-
quirements of Section 7.13 and 8.33 of the Land Use
Ordinance; and that there was substantial comipliance
with the requirements, not only in the presentation of
information relevant to the decisions that had to be
made, but in making the decisions required to be made
by the provisions of the Ordinance.
_—
I know perfectionists, not only among lawyers but on
the Court of Appeals, like to criticize findings, and there
are sometimes two different ways to criticize them. One
is that they parrot the language of the statute or ordi-
nance and, therefore, they can’t be genuine; and the
other is they didn’t parrot the language of the statute or
ordinance and therefore they don’t comply with the
law.
I have read the actions by the County Commissioners
in several of these cases and they did both. They stated
what had to be found according to the language of the
Land Use Ordinance, and also stated other things, which
certainly doesn’t detract from the fact that there was
substantial compliance with all the requirements.
The other aspect of this situation with respect to ap-
proval is that plaintiffs would have us ignore the ap-
proval by the TRPA.
In my opinion the approval of these four projects, by
operation of law so to speak, because the Interstate
Compact provides that final action must be taken within
sixty days, and if there is not a dual majority approving
or disapproving the proposal, the proposal will be
deemed approved; that that type of approval is no dif-
ferent in quality or legal effect from approval that had
been made by a unanimous vote of all the members of
the Agency. I think that is the plain intendment of the
first Younger case. It seems to me that when you have
administrative processes that are set up by law or regula-
tion and have to be followed in order to acquire a license
or privilege to do something with a final administrative
— ee
authority passing upon and approving or disapproving
what has been done by the subordinate bodies to which
the power has been delegated, when there has been
such ultimate approval or disapproval by the Agency
entertaining that power and authority, the underlying
procedures cannot be attacked if they were not attacked
successfully before the final approving authority. And in
this instan:ce, exceypt for the possibility of judicial review,
as indicated in the Nevada statute to which I have allud-
ed, if the Tahoe Regional Planning Agency—not “if,”
but when it did entertain review of these administrative
permits, any objections to the quality of the material and
information and procedures before the Douglas County
Planning Commission would necessarily be presented to
the Agency, and final action by the Tahoe Regional
Planning Agency would resolve any deficiencies in
those earlier proceedings.
Finally, I would like to comment on the merits in the
context of the contentions made by the plaintiffs. I find
nothing ambiguous in the height-limitation ordinance
7.13. It is quite plainly different from other types of
limitations ordinances. It was quite plainly adopted in
contemplation of the probability that many, many re-
quests for different height allowances would be made.
The section refers to the fact that, “No greater height
than that specified shall be obtained by any building or
structure in any land-use district, except that the per-
mit-issuing authority by administrative permit.” And
then it goes right on to specify certain general condi- -
tions under which the permit-issuing authority may al-
a
low a greater height.
Now, we all know, and people who promulgated this
ordinance knew, that there were structures at Lake
Tahoe, particularly on the south shore, which at that
time exceeded forty feet; but we all know, and the
people at Lake Tahoe knew, that there was a probability
of applications for structures above forty feet, not only
above forty feet but double forty feet or triple forty feet
or quadruple forty feet; and the types of guidelines that
were placed in Section 7.13 for the consideration of the
permit-granting authority are types which would be
relevant only if considerable heights of building con-
struction were contemplated.
It is my view that in every instance with respect to
each of the four defendants the provisions of the Land
Use Ordinance of the Tahoe Regional Planning Agency
were strictly and carefully followed and complied with,
and that there was no violation of those ordinances.
There are other subjects that could be commented
upon, but I have got another case scheduled for 10:00
o'clock.
With the exception of certain causes of action against
Park Cattle Company, which I believe are the second
cause of action in the complaint of the League to Save
Lake Tahoe, and the third cause of action in the com-
plaint of the State of California—
Do I have them identified correctly, Counsel?
MR. WRIGHT: Yes.
THE COURT: With those exceptions, the motions to
dismiss are granted, and the motions for summary judg-
oe ae
ment made by the plaintiffs are denied, the motions for
a preliminary injunction are denied.
With the exception of the second cause of action of the
League to Save Lake Tahoe’s complaint and the third
cause of action of the complaint by the State of Califor-
nia, the motion of the Park Cattle Company for a sum-
mary judgment is granted.
The Park Cattle Company shall have twenty days
from this date in which to answer the second cause of
action of the League to Save Lake Tahoe’s complaint
and the third cause of action of the complaint by the
State of California.
MR. WRIGHT: Your Honor, I believe they have al-
ready answered the complaint.
THE COURT: Have they?
MR. WRIGHT: Yes, your Honor.
MR. BLAKEY: Yes, we have answered, your Honor.
THE COURT: All right. Strike that last comment.
With respect to those two claims for relief; that is, the
second in the League’s complaint and the third in the
State’s complaint, the motion for preliminary injunctive
relief is denied at this time without prejudice to the
right to renew it when, if ever, it becomes apparent that
there is an emergency situation which requires prompt
action and as to which no other appropriate remedy is
available.
Anyone representing any party who has been affected
by the Court’s rulings will prepare his own order and
present it within five days.
MR. WRIGHT: Your Honor, we would like to also
= lo
request the Court to accomplish several things for the
purpose of the record. One is—
THE COURT: Would you mind coming up to the lec-
tern? When you talk at the book, I can’t hear you.
MR. WRIGHT: Yes, certainly, your Honor.
First of all, your Honor, we would like to request the
Court to make an order pursuant to FRCP 54 (b), so that
there be a final appealabie judgment with respect to the
claims against the—
THE COURT: That is because you have the periph-
eral claims against Park Cattle Company?
MR. WRIGHT: That is right.
THE COURT: All right, I will make a 54 (b) certifica-
tion to clarify the record. You already have one appeala-
ble order—
MR. WRIGHT: Yes.
THE COURT: —on the denial of preliminary injunc-
tion.
MR. WRIGHT: Yes.
THE COURT: All right.
MR. WRIGHT: Also, your Honor, based upon the
same presentation made to the Court—there would not
be any need to present new materials—we would, as
required by Appellate Rule 8, at this time move the
Court for an injunction on appeal.
THE COURT: You may prepare a statement that you
requested a stay pending appeal—what you want is real-
ly an affirmative injunctive relief pending capean
MR. WRIGHT: Yes.
THE COURT: And I denied it.
= Ta
MR. WRIGHT: Thank you, your Honor. And the final
—TI say “thank you” as a matter of courtesy.
As the final point, the very last part of the order of the
Court read, I am confused about—the Court, as best I
took it down, stated that the motion for preliminary
injunction was denied without prejudice to renew it
when an emergency situation becomes apparent. Is that
request for preliminary injunction with respect to that
peripheral claim this Court has against Park?
THE COURT: I tried to refer to those two causes of
action. The one that relates to the alleged December 16,
1976 modification by the Douglas County Commission-
ers of the administrative permit.
MR. WRIGHT: That was the League’s second claim
and the State’s third claim.
THE COURT: We have an issue of fact on that with
respect to whether there was, in effect, a change.
MR. WRIGHT: That is all, your Honor.
THE COURT: I might state that if I find that, after
hearing whatever material you people want to present,
that that did change the permit, I will require it to be
re-presented. If it didn’t, there is no reason for it to be
re-presented.
MR. WRIGHT: Also, is it necessary—I don’t know the
practice in this court. If the Court itself directs expedit-
ed preparation of the reporter’s transcript, we would
request such preparation of the transcript of the Court’s
opinion this morning.
THE COURT: My court reporter is red-headed and a
little bit hard to get along with, and I will let you fight
ome (I) a
that out with him, because he has got enough work to do
to keep him going for a year.
MR. WRIGHT: Thank you.
MR. SILVER: Your Honor, with regard to the League
and Sierra Club case, I would simply like to note for the
record that the plaintiffs are joining in the request of the
State for Rule 54(b) certification, and that they have
joined with the State with regard to a motion for
injunctive relief pending appeal.
THE COURT: All right. The 54(b) certification has
been granted in both cases, and also the denial of
injunctive relief pending appeal.
Do you have anything else?
We will be in recess.
7—79307
aun 6) ame
IN THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEVADA
CALIFORNIA TAHOE REGIONAL PLAN-
NING AGENCY; and PEOPLE OF THE
STATE OF CALIFORNIA
Plaintiffs
VS. > NO.
CIV. R. 77-0158
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK CAT-
TLE CO.; and COUNTY OF DOUGLAS
Defendants
cco
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND FINAL JUDGMENT
THIS MATTER came before the Court on October 17,
18, and 19, 1977, pursuant to plaintiffs’ Motion for Sum-
mary Judgment and Motion for Preliminary Injunction,
and on various Motions of the defendants, including de-
fendant Jennings’ Motion to Dismiss, and the plaintiffs
and all defendants having presented evidence and the
Court having considered the evidence presented by
each party as being available to all parties, and the mat-
ter having been argued and briefed and submitted to
the Court, and the Court being fully advised in the
premises and to the extent that the Court considered
matters outside the pleadings, defendant Jennings’ Mo-
tion to Dismiss was treated as one for summary judg-
ment pursuant to Rule 56 of the Federal Rules of Civil
Procedure, and based on the evidence submitted by
plaintiffs and the undisputed evidence and facts submit-
ted by defendants, the Court finds and concludes as
follows:
FINDINGS OF FACT
1. That on or about May 7, 1973, the Douglas County
Commissioners, the permit-issuing authority pursuant
to the TRPA Land Use Ordinance, issued an administra-
tive permit to defendant Jennings approving his project
and allowing a height greater than 40 feet; that prior to
issuing said administrative permit to defendant Jen-
nings, the Douglas County Commissioners required the
presentation of extensive evidence in support of such
additional height pursuant to §7.13 and § 8.33 of the
oo. wae
TRPA Land Use Ordinance.
2. That the Douglas County Commissioners, prior to
the issuance of said administrative permit, fully com-
plied with all provisions of all applicable ordinances and
regulations including §§ 7.13 and 8.33 of the TRPA Land
Use Ordinance.
3. That there was submitted to the Douglas County
Commissioners, prior to the issuance of the above refe-
renced administrative permit, substantial evidence pur-
suant to §§7.13 and 8.33, and upon such substantial
evidence the Douglas County Commissioners made
written findings which provided, inter alia, that “such
greater height will better promote the protection of the
environment in the area”; that the administrative
record before Douglas County contained substantial evi-
dence to support such findings.
4. That said permit was subsequently submitted to
and approved by the Nevada TRPA, and thereafter was
submitted to the TRPA for review; that on or about the
24th day of July, 1974, a hearing was held on the Jennings
administrative permit before the TRPA at which time
the governing body did not obtain a dual majority vote
to approve, modify or reject the Jennings project, and
that on or about August 12, 1974, the Jennings adminis-
trative permit was deemed approved by operation of
law pursuant to the terms of the TRPA Compact and
Land Use Ordinance.
5. That at the time of the adoption of the Land Use
Ordinance there existed in the area where defendant
Jennings’ project is to be constructed several high-rise
a we
structures, including structures which were higher than
the project proposed by defendant Jennings; at that
time it was common knowledge that under the said
Land Use Ordinance, and particularly §7.13, there
would be structures many times higher than 40 feet or
45 feet.
6. That the plaintiffs herein did not appear at the
hearing before the Douglas County Commissioners
when the Jennings administrative permit was issued.
Plaintiff League to Save Lake Tahoe made an appear-
ance before the NTRPA and the TRPA at the time of the
hearing on defendant Jennings’ permit. However, at no
time did any of the plaintiffs herein raise any issue or
contention that the Jennings project was in violation of
§ 7.13 or 8.33 of the Land Use Ordinance.
7. That in processing defendant Jennings’ application
for administrative permit the provisions of the TRPA
Land Use Ordinance were strictly and carefully fol-
lowed and that the administrative permit is valid and
was, when issued, valid, and was valid on its face.
8. That after the administrative permit of defendant
Jennings became final on or about August 12, 1974, de-
fendant Jennings in good faith, relied on that adminis-
trative permit and has expended the sum of
approximately $7,000,000 in furtherance of his project;
that plaintiffs, with full knowledge, allowed defendant
Jennings to proceed in reliance upon his administrative
permit which was valid on its face.
9. That on September 2, 1975, defendant Jennings was
issued a building permit for grading and excavation on
aie.
his project. On October 14, 1975, Jennings received a
building permit for foundations for his project. Pursuant
to these permits the grading and excavation on the
project was substantially completed, and the founda-
tions and footings were constructed; and that the costs
of construction in reliance on said permits was approxi-
mately $2,000,000. |
10. That plaintiff, State of California, on or about Au-
gust 7, 1974, filed suit in federal District Court entitled
State of California ex rel Evelle Younger, Attorney Gen-
eral, versus Tahoe Regional Planning Agency, et al, case
number R-74-108 BRT, (hereinafter referred to as the
“Younger case”), which.action attacked the validity of
the administrative permit issued to defendant Jennings
and alleged, inter alia, that defendant Jennings’ project
if constructed “will be in violation of the TRPA Ordi-
nance on land use intensity and height limits”.
11. That on or about August 16, 1974, plaintiff League
to Save Lake Tahoe filed suit number 6566 in Douglas
County, Nevada, (hereinafter “Douglas County” case),
which action attacked the administrative permit issued
to defendant Jennings and alleged, inter alia, said permit
was issued in violation of §§ 7.13 and 8.33 of the TRPA
Land Use Ordinance, was not supported by substantial
evidence and therefore was arbitrary, capricious and
contrary to law.
12. That on or about June 5, 1975, California peti-
tioned the Douglas County Court to file an amicus
curiae brief in the Douglas County action.
13. That on or about May 3, 1976, plaintiff League to
—
Save Lake Tahoe filed a suit in federal District Court
under the Clean Air Act, case number R-76-85 BRT,
entitled League to Save Lake Tahoe v. Roger S. Troun-
day, et al (hereinafter referred to as the “Trounday
case”), which suit sought to enjoin defendant Jennings’
project.
14. That the Younger action was appealed to the
Ninth Circuit Court of Appeals and the appellate Court
first issued its opinion on April 30, 1975, and amended
the same on June 11, 1975.
15. That none of the plaintiffs at any time have effec-
tively sought and followed through with injunctive re-
lief against defendant Jennings’ project.
16. That all actions and claims set forth in the within
action were available, apparent, and known to plaintiffs
at the time of the filing of the Younger suit in August of
1974, and the within claims could and should have been
included therein.
17. That all causes of action and all claims set forth in
the within matter were available, apparent and known
to plaintiffs at the time of filing the Douglas County case
on August 16, 1974.
18. That the plaintiffs delayed an unreasonable period
of time in commencing the within action.
19. That any objections that a building higher than 40
feet violated § 7.13 of the Land Use Ordinance should
have been made by plaintiffs in the permit-issuing
procedures and at the hearings before the Douglas
County Commissioners, the Nevada Tahoe Regional
Planning Agency, and the TRPA.
a a
20. That after the decision of the Ninth Circuit Court
of Appeals in the Younger case, plaintiffs made no at-
tempt to amend their Complaint or file another action
setting out the claims included in the within action.
21. That the Douglas County action was dismissed
against the League to Save Lake Tahoe with prejudice,
which dismissal was affirmed by the Nevada Supreme
Court on May 3, 1977.
22. That additional delay in the construction of Jen-
nings’ project will result in substantial increase in the
total cost of construction.
23. That the language of § 7.13 of the TRPA Land Use
Ordinance is not ambiguous.
CONCLUSIONS OF LAW
1. The Court has subject matter jurisdiction pursuant
to 28 U.S.C. 1331 (a).
2. That defendant Jennings’ administrative permit
was approved by operational law by the TRPA on or
about August 12, 1974, which approval has the same legal
effect as an approval by the unanimous vote of the gov-
erning body of the TRPA.
3. That plaintiffs’ claims against defendant Jennings
are barred by NRS 278.027.
4. That plaintiffs’ claims against defendant Jennings
are barred by the doctrine of /Jaches as a matter of law.
5. That plaintiffs’ claims against defendant Jennings
are barred by the doctrine of res judicata.
6. That in issuing the administrative permit to de-
fendant Jennings, Douglas County complied with all ap-
a
plicable local, state and TRPA ordinances, rules and
regulations, and said permit was validly issued and is
presently valid.
7. That defendant Jennings has a vested right to com-
plete construction of his project in accordance with the
terms of his building and administrative permits.
8. That the Land Use Ordinance § 7.13 is not ambigu-
ous and plainly contemplates applications for, and the
granting of, heights substantially in excess of 40 feet if
the conditions of § 7.13 and § 8.33 are met.
9. That Douglas County made adequate findings that
defendant Jennings’ project meets all the conditions of
§§ 7.13 and 8.33 of the Land Use Ordinance, and said
determinations and findings are supported by substan-
tial evidence in the record.
10. That even if there were any deficiencies in the
proceeding before Douglas County, those deficiencies
were resolved and corrected before the TRPA and by
the approval of Jennings’ administrative permit by oper-
ation of law.
11. That the plaintiffs’ claims against defendant Jen-
nings were not timely raised or asserted before the vari-
ous administrative bodies that reviewed the Jennings
administrative permit, and that therefore the plaintiffs
have failed to preserve said claims for judicial review
and the within action is barred for the failure of plaintiffs
to exhaust and timely assert available administrative
remedies.
12. That the First and Second Causes of Action against
defendant Jennings fail to state a claim for which relief
can be granted.
JUDGMENT OF DISMISSAL
Pursuant to the Findings of Fact and Conclusions of
Law set forth above, and good cause appearing, it is
hereby
ORDERED, ADJUDGED AND DECREED as fol-
lows:
1. That the Motion of plaintiffs for Preliminary In-
junction be and the same hereby is denied.
2. That the Motion of plaintiffs for Summary Judg-
ment be and the same hereby is denied.
3. That the Motion of defendant Jennings to Dismiss
the First and Second Claims for Relief be and the same
hereby is granted.
4. That the First and Second Claims for Relief are
dismissed with prejudice and judgment is entered in
favor of defendant Jennings together with costs.
DATED this 3lst day of October, 1977.
BRUCE R. THOMPSON
U.S. District Judge
a § on
BREEN, YOUNG, WHITEHEAD & HOY,
Chartered
232 Court Street
Reno, Nevada
(702) 786-7600
Of Counsel:
Charles D. Stein
Donald E. Egan
Lee Ann Watson
Katten, Muchin, Gitles,
Zavis, Pearl & Galler
55 East Monroe St., Suite 4100
Chicago, Illinois 60603
(312) 346-7400
Attorneys for Defendant,
Oliver Kahle
IN THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEVADA
CALIFORNIA TAHOE REGIONAL PLAN-
NING AGENCY AND PEOPLE OF THE
STATE OF CALIFORNIA,
Plaintiffs,
v.
TED JENNINGS; OLIVER KAHLE; HAR-
VEY’S WAGON WHEEL, INC.; PARK CAT-
TLE CO.; and COUNTY OF DOUGLAS,
Defendants.
Civ. R.
77-0158 BRT
FINDINGS OF
> FACT AND
CONCLUSIONS
OF LAW
a
The Plaintiffs in the above entitled matter have
heretofore filed a motion for Summary Judgment and
have also requested a Preliminary Injunction against
Defendant, Oliver Kahle, hereinafter referred to as “Ka-
hle.”
Defendant, Kahle, has heretofore filed herein his Mo-
tion to Dismiss Plaintiffs Complaint.
The hearing on all of the said motions did come on
before the above-entitled Court on the 17th, 18th, and
19th days of October, 1977.
All parties were represented by counsel, and volumi-
nous evidence was adduced on behalf of all parties; the
matter was extensively briefed and argued; and the
Court being fully informed does hereby make its Find-
ings of Fact, Conclusions of Law, and enters its Judg-
ment of Dismissal.
FINDINGS OF FACT
1. That the Douglas County Commissioners, the Per-
mit Issuing Authority, prior to issuing to Defendant, Ka-
hle, the Administrative Permit, pursuant to Section 8.33
of the Land Use Ordinance of the Tahoe Regional Plan-
ning Agency, required the presentation of extensive evi-
dence for Defendant, Kahle’s, project pursuant to Land
Use Ordinance Section 7.13, providing for greater
height, and Section 8.33, the Section authorizing the
issuance of Administrative Permits.
2. That there was submitted to the Douglas County
Commissioners, prior to the issuance of the said Ad- ~
ministrative Permit, substantial evidence pursuant to
a
Section 7.13. That the evidence so submitted to the Dou-
glas County Commissioners showed that (1) provision
has been made for protection from fire hazards and
against aviation accidents; (2) consideration has been
given to the protection of view and to the character of
the neighborhood; (3) proper provision has been made
for light and air; and (4) such greater height will better
promote the protection of the environment in the area.
3. That the Douglas County Commissioners, prior to
the issuance of the said Administrative Permit, made a
serious and determined effort to comply with the provi-
sions of Sections 7.13 and 8.33 of the Land Use Ordinance
of the Tahoe Regional Planning Agency.
4. That the height of Defendant, Kahle’s, project is
between 70 feet and 100 feet.
5. That the Douglas County Commissioners made
written findings that (1) provision has been made for
protection from fire hazards and against aviation acci-
dents; (2) consideration has been given to the vrotec-
tion of view and to the character of the neighborhood;
(3) proper provision has been made for light and air;
and (4) such greater height will better promote the
protection of the environment in the area.
Said findings were both in the language of Section
7.13, and in language not in the specific language of
Section 7.13.
6. That there was submitted to the Douglas County
Commissioners, prior to the issuance of the said Ad-
ministrative Permit, substantial evidence pursuant to
Section 8.33; that the evidence so submitted to the Doug-
— (|
las County Commissioners showed that the establish-
ment, maintenance or operation of Defendant, Kahle’s,
project is not detrimental to the health, safety, peace,
morals, comfort and general welfare of persons residing
or working in the neighborhood of such proposed use, or
detrimental or injurious to property and improvements
in the neighborhood or to the general welfare of the
Region, and will not cause any substantial harmful envi-
ronmental consequences on the land of the applicant or
on other lands or waters.
7. That the Douglas County Commissioners made
written findings that the establishment, maintenance or
operation of Defendant, Kahle’s project, is not detri-
mental to the health, safety, peace, morals, comfort and
general welfare of persons residing or working in the
neighborhood of such proposed use, or detrimental or
injurious to property and improvements in the neigh-
borhood or to the general welfare of the Region, and will
not cause any substantial harmful environmental conse-
quences on the land of the applicant or on other lands
or waters.
8. That the Douglas County Commissioners, prior to
the issuance of said administrative permit, did fully com-
ply with Sections 7.13 and 8.33 of the Land Use Ordi-
nance.
9. That at the time of the adoption of the Land Use
Ordinance there existed in the area where Defendant,
Kahle’s, project is to be constructed several existing
highrise structures considerably higher than Defendant,
Kahle’s, project.
ane 75 au
10. That the members of the Tahoe Regional Plan-
ning Agency at the time of the adoption of the Land Use
Ordinance, February, 1972, contemplated that there
would be numerous applications requesting a height
much greater than 40 feet or 45 feet.
11. That at the time of the adoption of the said Land
Use Ordinance it was common knowledge that under
the said Land Use Ordinance, and particularly Section
7.13, there would be structures many times higher than
40 feet or 45 feet.
12. That at none of the hearings on Defendant, Kah-
le’s, permit, including the hearing before the Tahoe Re-
gional Planning Agency, was any contention made that
a project higher than 40 feet violated Section 7.13, the
height Section of the Land Use Ordinance, or that a
variance should have been applied for under Section
8.34 of the Land Use Orditiance.
13. That in the processing of Defendant, Kahle’s ap-
plication for an Administrative Permit the provisions of
the Land Use Ordinance were strictly and carefully fol-
lowed.
14. That the Administrative Permit of Defendant, Ka-
hle, is valid and was, when issued, valid, and was valid
on its face.
15. That in reliance upon the Administrative Permit
Defendant, Kahle, has expended substantial funds an
incurred substantial costs.
16. The Plaintiffs, with full knowledge of Defendant,
Kahle’s, action, permitted Defendant, Kahle, to proceed
and to rely upon the Administrative Permit which was
8—79307
aw 16 iw
valid on its face.
17. Plaintiff, State of California, on August 7, 1974,
filed a suit in the above-entitled Court, entitled State of
California ex rel. Evelle Younger, Attorney General, vs.
Tahoe Regional Planning Agency, et al, number R 74-
108 BRT, attempting to prevent the construction of De-
fendant, Kahle’s, project.
18. The League to Save Lake Tahoe, on August 16,
1974, filed suit number 6566 in Douglas County, Nevada,
entitled League to Save Lake Tahoe v. Douglas County,
et al, in an attempt to stop Defendant, Kahle’s, project.
Plaintiffs had full knowledge of this suit.
19. On June 5, 1975, the State of California petitioned
the Douglas county Court to file an Amicus Curiae brief
to assist the League to Save Lake Tahoe, setting out in
the brief the same grounds set out herein.
20. That the League to Save Lake Tahoe, on the 3rd
day of May, 1976, filed a suit in the above-entitled C
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