# Petition — California Tahoe Regional Planning Agency v. Jennings > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0502%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 864 ## Text Ht Fy LED 4 wh & 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 —" ¥ } ; ee ce eee 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 Regiona [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0502%3A1. Public record. Not legal advice.