Opposition Brief — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

Supfeme Court, U.S,

FILED

a ow

(y FEB 2 8 199)

No. 90-1212

died OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1990

,%

_

TAHOE-SIERRA PRESERVATION COUNCIL, INL., et al.,

Petitioners,

TAHOE REGIONAL PLANNING AGENCY, et al.,

Respondents.

,

4

Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

&

—

BRIEF IN OPPOSITION OF RESPONDENT

TAHOE REGIONAL PLANNING AGENCY

,%

4

Gary A. Owen

CROWELL, 5USICH, OWEN &

TACKES

510 West Fourth Street

P.O. Box 1000

Carson City, Nevada 89702

(702) 882-1311

Counsel of Record

for Respondent

Tahoe Regional

Planning Agency

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

~/

QUESTIONS PRESENTED

1. Did the Court of Appeals properly require Peti-

tioners Tahoe-Sierra Preservation Council, et al., before

filing a Fifth Amendment takings challenge against the

regional plan of Respondent Tahoe Regional Planning

Agency, to apply for an amendment of the plan as to their

specific properties under the special procedure of Article

V(a) of the Tahoe Regional Planning Compact, a pro-

cedure at the election of the property owner and under

which TRPA is compelled to timely consider and act upon

the application?

2. Should this Court grant certiorari to consider a

takings-ripeness case emanating from regulations of the

Tahoe Regional Planning Agency governing land use and

environmental protection in the unique, complex ecosys-

tem of the Lake Tahoe Basin when, because of the state of

the record below, the questions posed by petitioners are

ambiguous and possibly moot, and when granting cer-

tiorari may well encourage a spate of facial takings claims

presenting no concrete controversies?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..... .ccsctscccsccesecsen i

poe Be Be Er rT ore rT TT ere re ii

TAREE GP Rs 65600 NF wee vecwas iv

TABLE OF ABBREVIATIONS ....................-- vii

S, QAR EY nv ee ddd dawiswebaveusebess 2

II. STATUTORY PROVISION INVOLVED ....... 2

Il. STATEMENT OF THE CASE ............... ~ 2

A. NATURE OF THE CASE............... es

B. PROCEEDINGS BELOW ................. 4

C. THE LAKE TAHOE BASIN............. , «i

D. THE UNPRECEDENTED APPROACH TO

STEMMING THE DECLINE............ 8

ee PTO E TELE RTETTE . &

SES Se rsa ks tie cceee cen: 9

3. Implementation of the 1980 Compact.. 10

4. The California Attorney General’s

a TEL Peer e eT eT Cer .

WO Se Wn ces vereawisenannscees .

IV. REASONS FOR DENYING THE PETITION... 13

R. GER “Kian fp heds Srp eeedankene ness . 13

B. THE ISSUES HERE - ASSUMING THEY

CLEARLY EMERGE AT ALL - ARE NOT

NATIONALLY IMPORTANT QUESTIONS

OF FEDERAL LAW

ili

TABLE OF CONTENTS - Continued

Page

C. THE COURT OF APPEALS’ DECISION

ACCORDS WITH PRECEDENTS OF THIS

A RR an a aneiennRie meget 15

1. Lending Itself to Finality of Govern-

mental Action, Article V(a)’s Special

Procedure Must Be Pursued Before

Launching A Federal Takings Claim.. 15

2. This Court Has Not Encouraged Facial

Ree eee eee 17

D. GRANTING CERTIORARI POSES LEGAL

AND PRACTICAL PROBLEMS OF

NATIONAL IMPORTANCE.............. 20

V. CONCLUSION

iV

TABLE OF AUTHORITIES

Page

CAsEs:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .... 19

Buckley v. Valeo, 424 U.S. 1 (1976)................... 19

Hodel v. Virginia Surface Mining & Recl. Assn., 452

SE ore cad ins 6.5608 dk cwnkan a nseascnns 17, 18

Keystone Bituminous Coal Assn. v. DeBenedictis, 480

Sy Serre errr 17, 18, 19

MacDonald, Sommer & Frates v. Yolo County, 477

oS Bp err rrr eer ore ee 17

New Orleans Pub. Serv. v. New Orleans, 491 U.S. 350

ORAL URA aA Nhs ch edSeeeadNake beaa ens rekeness 16

Pacific Gas & Elec. v. Energy Resources Comm'n, 461

ee I aS Uartk hed cineew need oakes <kks o> 19

Pennell v. San Jose, 485 U.S. 1 (1988) ............. 18, 19

People ex rel. Younger v. County of El Dorado, 5

Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1193

lean oa Ny Ny Seah ye pl al "pg en a 8

People of California v. Tahoe Regional Plan Agency,

706 F.20 13508 Oth Cir. 1965)............. Foe 41, 12

People of California v. Tahoe Regional Planning

Agency, No. CIVS-84-0561-EJG (E.D. Cal. 1984) .... 12

People of St. of Cal. ex rel. Younger v. Tahoe Reg. P.

Ag., 516 F.2d 215 (9th Cir. 1975), cert. denied, 423

OS Rr ere re reer eee 8

Prentis v. Atlantic Coast Line, 211 U.S. 210 (1908) .... 16

Regional Rail Reorganization Act Cases, 419 U.S. 102

Pd nde KEENAN RESO SARE EER RECO REX Oka 19

Vv

TABLE OF AUTHORITIES - Continued

Page

Tahoe-Sierra Preservation v. Tahoe Reg. Planning, 611

F.Supp. 110 (D. Nev. 1985)..........-----ee eee eee 2

Tahoe-Sierra Preservation v. Tahoe Regional Planning,

638 F.Supp. 126 (D. Nev. 1986).................555. 2

Toilet Goods Assn. v. Gardner, 387 U.S. 158 (1967) .... 19

Williamson Planning Comm'n v. Hamilton Bank, 473

fk Mie 2s, Serer roe Tere Te res 16

FEDERAL STATUTES

Federal Clean Water Act (33 U.S.C. Section 1251, et

INTERSTATE COMPACTS

Tahoe Regional Planning Compact, Pub. L. 91-148, 83 Stat.

360 (1969); Cal. Gov. Code Sections 66800 and 66801;

N.R.S. 277.190 and 277.200

Article I(c)

Tahoe Regional Planning Compact, Pub. L. 96-551, 94 Stat.

3233 (1980); Cal. Gov. Code Sections 66800 and 66801;

N.R.S. 277.190 and 277.200

pf Prereer ere eerrrr rrr rs tr ie ces 9

errr errr er ree Ce 9

| rer er rerrrerrrc rT Terre. passim

Astigte VUNG... << 0.00 vseccsaves ss tesssnateh neg 20

vi

TABLE OF AUTHORITIES - Continued

Page

TREATISE

3 K. Manaster and D. Selmi, California Environmen-

tal Law and Land Use Practice, Section 64.04 (6)

WOE hin cin k6.nahnwen Kecaen een ey eaetaiat eee 9

Vii

TABLE OF ABBREVIATIONS

The following abbreviations are employed in this

brief:

”

- Appendix to Petition for Writ of

Certiorari of Tahoe-Sierra Preser-

vation Council, Inc., et al.

a - District Court Clerk’s Record

3. “Pet.” — Petition for Writ of Certiorari of

Tahoe-Sierra Preservation Coun-

) cil, Inc., et al.

4. “TRPA” — Respondent Tahoe Regional Plan-

ning Agency

. a. - Collectively Petitioners Tahoe-

Sierra Preservation Council, Inc.,

et al.

6. “1969 Compact” - Tahoe Regional Planning Com-

pact, Pub. L. 91-148, 83 Stat. 360

(1969); Cal. Gov. Code Sections

66800 and 66801; N.R.S. 277.190

and 277.200

7. “1980 Compact” —- Tahoe Regional Planning Com-

pact, as amended, Pub. L. 96-551,

94 Stat. 3233 (1980); Cal. Gov.

Code Sections 66800 and 66801;

N.R.S. 277.190 and 277.200

8. “1984 Plan” - The TRPA Regional Plan, adopted

April 26, 1984

1. “App.

No. 90-1212

,%

_

In The

Supreme Court of the United States

October Term, 1990

La

vr

TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al.,

Petitioners,

TAHOE REG:ONAL PLANNING AGENCY, et al.,

Respondents.

=

_

Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

,

> -

BRIEF IN OPPOSITION OF RESPONDENT

TAHOE REGIONAL PLANNING AGENCY

sa

_

The Tahoe Regional Planning Agency, Respondent,

respectfully submits this brief in opposition to the peti-

tion for writ of certiorari to the United States Court of

Appeals for the Ninth Circuit, filed January 28, 1991, by

Tahoe-Sierra Preservation Council, Inc., and named mem-

bers thereof, Petitioners.

*

I

OPINIONS BELOW

TRPA! concurs in this portion of TSPC’s petition,

except that the decisions of the United States District

Court, District of Nevada, were reported: Tahoe-Sierra

Preservation v. Tahoe Reg. Planning, 611 FSupp. 110 (D.

Nev. 1985); Tahoe-Sierra Preservation v. Tahoe Regional Plan-

ning, 638 F.Supp. 126 (D. Nev. 1986).

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Il

STATUTORY PROVISION INVOLVED

The statutory provision involved in this case is Arti-

cle V(a) of the 1980 Compact (Pub. L. No. 96-551, 94 Stat.

3233, 3239 [1980]; App. E, at 88a), which provides:

If a request is made for the amendment of the

regional plan by:

* * +

(2) the owner or lessee of real property

which would be affected by such amendment,

the governing body shall complete its action on

such amendment within 180 days after such

request is accepted as complete according to

standards which must be prescribed by ordi-

nance of the agency.

' Terms represented by abbreviations such as “TRPA”,

“TSPC” and others frequently used in this brief are referred to

in the Table of Abbreviations set forth on the page immediately

preceding the title page.

Ill

STATEMENT OF THE CASE

A. NATURE OF THE CASE

This case involves the sensitive environmental

enclave in the Lake Tahoe Basin and the special approach

there to land use and environmental planning. It focuses

upon the failure of TSPC, a would-be Fifth Amendment

takings plaintiff, to pursue a unique procedure in the

interstate compact creating TRPA requiring the agency to

timely consider a request by TSPC to amend the agency’s

regional plan with respect to the specific property owned

by TSPC.? Eschewing this procedure, TSPC raises what it

characterizes as an exclusively “facial” takings challenge

to TRPA’s 1984 Plan.*

2 TSPC implies that its organization represents all prop-

erty owners interested in TRPA’s 1984 Plan. See Pet., at 3. That

is not the case: property-owner petitioners here number 364,

while TSPC’s complaint alleges, as is the case, that there are

literally thousands of vacant, single-family residential lots or

parcels in the Lake Tahoe Basin. App. F, at 153a-154a.

3 TSPC’s complaint does not use the words “facial” or “on

its face” when describing its challenge to TRPA’s 1984 Plan.

Moreover, the complaint incorporates voluminous, detailed

appendices describing each of the individual plaintiffs’ proper-

ties. Two examples are attached as an appendix to the petition.

App. F, at 195a-199a. The “facial” gloss was first placed upon

its complaint in TSPC’s opposition to defendants’ motions to

dismiss the complaint upon ripeness and other grounds. C.R.

28, at 70-72. Confronted with the reasons for the appendices,

TSPC maintained they were attached “only for the sake of

orderliness and brevity”. Id., at 71. Subsequent briefing by the

parties treated the complaint as though it presented a facial

challenge, although, contrary to TSPC’s representations

(Continued on following page)

B. PROCEEDINGS BELOW

TSPC states the defense based upon Article V(a) of

the 1980 Compact was “just cursorily mentioned” in one

of Respondents’ briefs below and was “never seriously

argued” to the District Court. Pet., at 25. That is not

correct. While the trial court relied upon alternative

grounds for holding TSPC’s complaint premature (App.

C, at 62a-63a), the Article V(a) ground was explicitly

asserted in TRPA’s brief in support of its motion to dis-

miss TSPC’s complaint. C.R. 16, at 56. TSPC addressed it

in its opposition to the motion (C.R. 28, at 70-72), and

then TSPC raised the Article V(a) issue in its opening brief

in the Ninth Circuit Court of Appeals. Opening Brief for

Appellants, at 41-42. TRPA in turn defended the ground

in its brief before the appellate court. Brief of Appellee, at

17, 22-23.

C. THE LAKE TAHOE BASIN‘

The Lake Tahoe Basin rests over 6,000 feet above sea

level in the Sierra Nevada and occupies 324 square miles

(Continued from previous page)

to this Court (Pet., at i, 11, & 12, n. 10), the Ninth Circuit Court

of Appeals’ decision did not hold or determine TSPC’s “facial

challenge” was not ripe for review. The Ninth Circuit never

used the terms “facial”, “on its face” or other words of similar

purport. See App. A.

4 Most of the following description is taken from the Envi-

ronmental Impact Statement for the Establishment of Environ-

mental Threshold Carrying Capacities, Tahoe Regional

Planning Agency, May, 1982. The document was attached as

(Continued on following page)

astride the California-Nevada border. Lake Tahoe, the

focal point of the basin, is surrounded by magnificent

mountain peaks, some almost a mile higher than the

surface of the lake. Descending abruptly from the peaks

and ridges to the lake’s edge, the lands within the basin

are quite steep, with about three-quarters of the area

comprising slopes in excess of 30%. C.R. 17, Ex. B, at 7.

Lake Tahoe is 12 miles wide and 22 miles long, with a

surface area of 192 square miles. It is the tenth deepest

lake in the world, having a maximum depth of 1,645 feet.

Id., at 8. Lake Tahoe is “ultraoligotrophic”, characterizing

a lake which is extremely clear with low concentrations of

nutrients otherwise supporting the growth of algae. Until

recently, the lake had a 10,000-year history of being at or

near equilibrium in the gain and loss of nutrients. Id., at

9.

Nutrients, such as nitrogen, are introduced to Lake

Tahoe through surface and sub-surface flows from the

lake’s 63 watersheds. The amount of nitrogen and other

nutrients carried to the lake depends upon the soils,

vegetation and land use within each watershed. Id., at 10.

Impervious cover and surface disturbance of soil in

the Lake Tahoe Basin impede the soil’s natural function

as a medium for growth of vegetation and storage of

(Continued from previous page)

Exhibit B to C.R. 17, an affidavit submitted for purposes of

judicial notice in support of TRPA’s motion to dismiss -TSPC’s

complaint. It will be cited in the text through the short-form

designation, “C.R. 17, Ex. B”. References in the text to other

exhibits to C.R. 17 are to other documentary evidence attached

to the affidavit.

nutrients. Vegetation is an important component of the

ecosystem, responsible for removing nutrients, partic-

ularly nitrogen, from precipitation. Absent vegetation,

erosion increases sediment loads to Lake Tahoe, in turn

resulting in the storage of nutrients in the lake, rather

than in the watershed where they belong. C.R. 17, Ex. D,

at 30. Impervious cover on the other hand prevents infil-

tration of precipitation, resulting in heightened runoff.

C.R. 17, Ex. B, at 17-18.

The recent annual suspended sediment load to Lake

Tahoe from surface runoff is approximately 27,000 metric

tons, about four times the natural load. Isolated examples

of development have revealed suspended sediment con-

centrations 100 to 1,000 times the natural. These elevated

loads of sediments, accompanied by nutrients, cause a

decline in clarity and an increase in algal productivity in

the lake. C.R. 17, Ex. D., at 31.

Lake Tahoe and its tributaries are experiencing a

downward trend in water quality. Sediment-caused dis-

turbance of the lake’s natural nutrient-loading equilib-

rium has resulted in accelerated eutrophication of the

waters: a decline in annual average depth of visibility

from 31.2 meters in 1968 to 27.6 meters in 1981; a decline

in winter clarity from an average of 33.6 meters’ visibility

in 1968 to 14.9 meters in 1981. There has been a corre-

sponding increase in algae of 110% from 1959 to 1980,

averaging 5.2% per year.° C.R. 17, Ex. B, at 12.

5 These alarming trends prompted the framers of the 1980

Compact to declare in Article I(a)(1) that the waters of Lake

(Continued on following page)

The Lake Tahoe Basin contains thousands of undeveloped,

single-family residential lots. C.R. 17, Ex. C, at 13. Even TSPC

alleges that TRPA has documented approximately 19,300

vacant lots or parcels, of which 6,400 are wholly or partially

located in Land Capability Districts 1, 2 or 3 and 4,900

similarly classified as Stream Environment Zone (SEZ).©

App. F, at 153a. All of TSPC’s lots fall within these most-

sensitive categories. Id., at 154a. And TSPC does not dispute

the correctness of their classification. App. A, at 17a.

The basin’s unparalleled natural features, coupled

with close proximity to large population centers primar-

ily in Northern California, have marked it the quintessen-

tial retreat. But in the prescient words of the California

(Continued from previous page)

Tahoe were “threatened with deterioration or degeneration, which

endangers the natural beauty and economic productivity” of the

area. App. E, at 73a. Moreover, what TSPC now describes as

“perceived environmental abuses” (Pet., at 4 & 6) were never the

subject of debate below. Indeed, TSPC has never disputed — or even

questioned — the overwhelming evidence documented in the

record below that Lake Tahoe is becoming increasingly polluted.

© TRPA employs a scientific system of “land capability” classi-

fication, which allocates maximum amounts of impervious surface

depending upon, among other things, the erosion and runoff

potential of soils and the slopes on which they are located. Capa-

bility classes or districts range from 1 to 7, with Classes 1 through

3, including Stream Environment Zones (Class 1 [b]), comprising

the “high-hazard” or most-sensitive lands of the spectrum. Class 1

and 2 lands are allowed 1% coverage while lands in Class 3 are

allowed 5%. See C.R. 17, Ex. B, at 19; see generally People of California

v. Tahoe Regional Plan Agency, 766 F.2d 1308, 1315 (9th Cir. 1985). In

its 1972 Plan adopted under the 1969 Compact (Pub. L. 91-148, 83

Stat. 360 [1969]) TRPA allowed numerous coverage “overrides” to

the percentage limitations.

Supreme Court, “there is good reason to fear that the

region’s natural wealth contains the virus of its ultimate

impoverishment.” People ex rel. Younger v. County of El

Dorado, 5 Cal.3d 480, 485, 96 Cal.Rptr. 553, 487 P.2d 1193

(1971). As things now stand, the region does not have a

supply of resources and capacities adequate to meet

pressing residential demands, not to mention those for

commercial and recreational uses, and yet maintain the

values the framers of the 1980 Compact found so impor-

tant. See C.R. 17, Ex. C, at 13.

D. THE UNPRECEDENTED APPROACH TO STEM-

MING THE DECLINE

1. The 1969 Compact. As unmatched as the Lake

Tahoe Basin itself is the effort to preserve it. Although it

is a single air and water basin comprising portions of two

states, six local governments and numerous special dis-

tricts, along with substantial federal holdings, there has

been a unified, if novel, endeavor to address the area’s

problems. The States of California and Nevada, with the

approval of Congress, selected the interstate compact as

the best means to treat its manifestly complex needs.

In 1969 they enacted the Tahoe Regional Planning

Compact, Pub. L. 91-148, 83 Stat. 360 (1969). Establishing

an agency described as the “sui generis [offspring] of a

marriage between sovereign partners”, People of St. of Cal.

ex rel. Younger v. Tahoe Reg. P. Ag., 516 F.2d 215, 218 (9th

Cir. 1975), cert. denied, 423 U.S. 868 (1975), the 1969 Com-

pact mandated TRPA’s adoption of a regional plan of

resource conservation and orderly development. 1969

Compact, Article I(c). Complying, the agency in 1972

adopted a regional plan and implementing ordinances.

But because of a number of structural deficiencies in the

Compact, they failed to cope with the persistent decline

in the quality of the lake and its environs. See generally 3

K. Manaster and D. Selmi, California Environmental Law

and Land Use Practice, Section 64.04 (6) (1990).

2. The 1980 Compact. Due to the failure of the 1969

Compact to cope with the degradation of the Lake Tahoe

Basin, the states, with Congress’ approval, extensively

amended the document in December 1980. Pub. L. 96-551,

94 Stat. 3233 (1980).7 In terms far more exigent than its

predecessor, the 1980 Compact accentuated the mounting

threats to the ecology of the region (Art. I[a], App. E, at

73a-75a) and declared the need to establish “environmen-

tal threshold carrying capacities”® and adopt a plan

achieving them while providing orderly growth.

7 The 1980 Compact is contained in Appendix E to TSPC’s

petition. The background of the 1980 amendments to the Com-

pact and a description of the planning process they com-

menced are treated in People of California v. Tahoe Regional Plan.

Agency, supra, 766 F.2d, at 1310-1312.

8 “Environmental Threshold Carrying Capacity” is

defined in Article II(i) (App. E, at 77a) of the 1980 Compact as

“an environmental standard necessary to maintain a significant

scenic, recreational, educational, scientific or natural value of

the region or to maintain public health and safety within the

region.” Environmental thresholds are to include, but not be

limited to, “standards for air quality, water quality, soil conser-

vation, vegetation preservation and noise.” Id.

10

3. Implementation of the 1980 Compact. The 1980

Compact triggered an unprecedented planning effort, not

simply for a well-planned, pleasant community, but to

rescue a world-class Alpine environment from the grips

of imminent pollution. As a first step, TRPA on June 25,

1981, enacted Ordinance 81-5 (effective August 25, 1981),

representing a coalescence of TRPA’s responsibilities as

an area-wide planning agency under Section 208 of the

Federal Clean Water Act (33 U.S.C. Section 1251, et seq.)

and to ensure the amended plan required by the 1980

Compact would not be outstripped by precipitate devel-

opment of high-hazard lands.? Ordinance 81-5 was

designed to give TRPA a measure of “breathing room” in

its attempt to cope with the enormous dilemma of thou-

sands of single-family lots located in sensitive lands.'°

®° Ordinance 81-5 appears in the record at C.R. 17, Ex. I.

The focus of TSPC’s petition is TRPA’s 1984 Plan, infra, and

TSPC disparages the plan as a continuation of a “similar prede-

cessor ‘interim moratorium’ ”, referring to Ordinance 81-5.

Pet., at 4. Ordinance 81-5, however, contained a “case-by-case”

system for approving construction of single-family homes on

Land Capability Class 1, 2 and 3 lots (excluding SEZ’s) in

Nevada, a system for which TSPC clamored but, as the Court

of Appeals correctly observed, of which it failed to take advan-

tage. App. A, at 16a. TSPC thus incorrectly asserts that Ordi-

nance 81-5 “effectively prohibited” building on 1TSPC’s

residential parcels. Pet., at 7.

10 TRPA determined later that construction of a typical

single-family residence on Class 1, 2 or 3 lands caused a

significant adverse impact on water quality resulting from

sediment-loading of approximately .44 metric tons per year for

each such residence. C.R. 17, Ex. H, Section 1.28.

11

On August 26, 1982, TRPA adopted environmental

threshold carrying capacities for the Lake Tahoe Basin.

C.R. 17, Ex. A. The threshold, or standard, for impervious

cover of soil was compliance with the percentage-cover-

age classifications of TRPA’s land capability system. On

April 26, 1984, TRPA adopted an amended regional plan,

known as the “1984 Plan”, representing the agency’s first,

albeit unsuccessful, attempt to comply with the mandates

of the 1980 Compact. C.R. 17, Ex. F Culminating an

historic planning process of dimensions not even the

framers of the 1980 Compact could have contemplated,

see People of California v. Tahoe Regional Plan Agency, supra,

766 F.2d, at 1311-1312, the 1984 Plan attempted to balance

acute pressures for use and development with consump-

tion of the scant remaining resources of area. Regulating

the amount, location and timing of development in con-

formance with the environmental thresholds, the plan

prescribed a single-family residential evaluation system

allowing 75 residences per year to be constructed during

the first three years on Class 1, 2 and 3 lots, excluding

SEZ’s, in the Nevada portion of the basin. The plan

contained an elaborate system of transfer of development

rights, applicable to all high-hazard lands."!

1! TSPC neglects the transfer program in its description of

the “only” uses permissible in SEZ’s. Pet., at 9, n. 7. Moreover,

TSPC offers that the 75-residences-per-year provision for

building on Class 1, 2 and 3 lots was but a “theoretical excep-

tion” that “to date” has never been implemented — as though it

were a ruse. Id., at 9, n. 8. To the contrary, the residential-

evaluation system was real but, as indicated below, enjoined

from implementation. That TSPC impugns it as merely “theo-

retical” and never taking effect, while opining a mere three

footnotes earlier that the 1984 Regional Plan “remained in full

force and effect” (id., at 8, n. 5), is misleading.

12

It was TSPC’s failure to file an application under

Article V(a) of the 1980 Compact for mandatory consider-

ation of an amendment to the 1984 Pian that in the

judgment of the Court of Appeals rendered its takings

challenge unripe. App. A, at 8a-16a.12

4. The California Attorney General’s Injunction.

On April 26, 1984, the very day TRPA adopted the 1984

Plan, the State of California sued TRPA for declaratory

and injunctive relief, alleging the plan did not comply

with the 1980 Compact. People of California v. Tahoe

Regional Planning Agency, No. CIVS-84-0561-EJG (E.D.

Cal. 1984). Following an immediate temporary restraining

order, the District Court on August 9, 1984, preliminarily

enjoined TRPA from approving any project within the

basin, subject to certain limited exceptions not applicable

here. See App. A, at 5a, n. 2. The District Court’s order

was affirmed on appeal. People of California v. Tahoe

Regional Plan Agency, supra, 766 F.2d 1308.

12 The Court of Appeals noted TRPA had urged TSPC’s

failure to pursue “several features of the 1984 Plan rendered its

attack on the plan premature.” See App. A, at 7a-8a (emphasis

added). That is correct, for in addition to the unusual pro-

cedure of Article V(a), the 1984 Plan offered the following

measures: the 75 annual permits for development of Class 1, 2

and 3 lands; a procedure to challenge the land capability

classification of one’s land; a system of transfer of develop-

ment rights; and an opportunity to challenge the land capa-

bility classification of SEZ lands. See App. C, at 62a-63a. As the

District Court observed, TSPC “admitted at oral argument that

none of the options arguably open to land owner plaintiffs [sic]

have been attempted.” Id., at 63a-64a.

13

5. The 1987 Plan. Following the 1984 Plan litiga-

tion, a process known as the “Consensus-Building Work-

shop” was initiated by TRPA to include the broadest

possible range of private and governmental interests and

viewpoints on the makeup of an amended plan. Lasting

over two years, the discussions precipitated a plan

adopted by the TRPA Governing Board on June 25, 19°7.

Approved in the settlement of the 1984 Plan litigation, the

1987 Plan is dramatically distinct from its predecessor

and includes a scientifically-based individual parcel eval-

uation system for gradual development of unbuilt resi-

dential lots, excluding those located in streamzones. All

lots in the basin, including SEZ lots, are entitled to trans-

fer a number of different development rights under the

plan.'3

Lp.

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IV

REASONS FOR DENYING THE PETITION

A. SUMMARY

TSPC’s petition should be denied for at least the

following reasons: (1) the issues here —- if they clearly

emerge at all — do not present nationally important ques-

tions of federal law; (2) the Court of Appeals’ decision

accords with the precedents of this Court in its treatment

'3 Respondent State of California in its Brief in Opposition

will argue that enactment of the 1987 Plan rendered takings

claims with respect to the 1984 Plan moot. In addition, Califor-

nia will contend that, since the 1984 Plan never took effect, it

could not have caused a taking of TSPC’s properties.

14

of facial takings claims"; and (3) granting certiorari will

only confuse, not clarify, issues surrounding facial tak-

ings and pose practical problems for federal courts hand-

ling takings cases.

B. THE ISSUES HERE - ASSUMING THEY

CLEARLY EMERGE AT ALL - ARE NOT

NATIONALLY IMPORTANT QUESTIONS OF

FEDERAL LAW

Land use and environmental planning for the Lake

Tahoe Basin does not lend itself to issues of national signifi-

cance. The unique processes challenged by TSPC, to be sure,

are driven by the equally exceptional qualities of the basin.

Planning for Lake Tahoe’s complex ecosystem and develop-

mental patterns, quite simply, is like planning for no other

place on earth.

Also extraordinary is the process of Article V(a) of

the 1980 Compact (App. E, at 88a), which TSPC elected to

forego. While TSPC casts the provision as similar to a

California statutory deadline for action on land use per-

mit applications (Pet., at 28, n. 19), the comparison misses

the mark. A permit process, oftentimes ministerial in

nature, assumes the existence of legislative infrastructure,

such as a general plan, under which permits are issued.

Far from compelling action upon a mere permit, Article

V(a) allows the applicant, for its specific property, to

target legisiative considerations in establishing the infra-

structure to begin with — in short to change the plan.

'* Respondent State of California will address TSPC’s con-

tention that the decision of the Court of Appeals is at odds

with recent decisions of other circuits. Pet., at 20-22.

15

Finally, what TSPC posits as a clear dichotomy in this

case between facial and as-applied takings is not readily

apparent from the record. Amid problems of pleading

clarity, including highly specific complaint-appendices

describing each plaintiff's property, alternative ripeness

remedies eschewed by TSPC, and questions of causation

and mootness, the would-be facial takings issue TSPC

presents is at best muddled.

Accordingly, any decision on the issues here would

be so steeped in novelty and confusion of the record that

its precedential value would be quite limited.

C. THE COURT OF APPEALS’ DECISION

ACCORDS WITH PRECEDENTS OF THIS

COURT

1. Lending Itself to Finality of Governmental

Action, Article V(a)’s Special Procedure Must be Pur-

sued Before Launching a Federal Takings Claim. TSPC

maintains Part III. A. of the Ninth Circuit’s decision

(App. A, at 8a-16a) conflicts with or misapplies prece-

dents of this Court. Pet., at 12-20. At the same time TSPC

is unable to cite a single case addressing ripeness in the

context of a procedure even remotely akin to Article V(a).

None of TSPC’s cases - nor any we have unearthed -

holds or hints that a takings plaintiff may shun such a

course and bolt immediately to a facial attack. For TSPC

to maintain in essence that “no court has said you must

first seek to amend the plan to ripen a claim against it”

does not raise the question — it only shows the issue never

has been raised.

16

Article V(a), geared to the specific property of the

applicant, is a sensible measure to achieve the finality of

governmental action emphasized by this Court as the

kernel of a ripe takings claim. As much as the Court

insisted the plaintiff in Williamson Planning Comm’‘n v.

Hamilton Bank, 473 U.S. 172, 190-191 (1985), first apply for

a variance to obtain a “final decision regarding how it

will be allowed to develop its property”, TSPC was prop-

erly held here to pursuit of a final decision under Article

V(a). That course is necessitated by the takings ad hoc,

factual inquiry into the economic impact of the chal-

lenged regulation and the extent to which it interferes

with reasonable investment-backed expectations.'5 As

this Court put it in a decision shortly after Williamson,

there must be a “final and authoritative determination of

the type and intensity of development legally permitted

15 Requiring a final, definitive position under Article V(a)

on how a prospective takings plaintiff may develop its prop-

erty is analogous to this Court’s historic insistence upon the

finality of legislative action before it is challenged. See, e.g.,

Prentis v. Atlantic Coast Line, 211 U.S. 210, 228-230 (1908) (dis-

missed, as premature, takings challenge to order fixing rail-

passenger rates because of plaintiff’s failure first to pursue

state constitutional right to appeal rates and obtain final deci-

sion fixing them). The reasoning of Prentis was recently reaf-

firmed, although held inapplicable, in New Orleans Pub. Serv. v.

New Orleans, 491 U.S. 350, 105 L.Ed.2d 298, 319-320, 109 S.Ct.

2506, 2520 (1989). New Orleans intimated, however, that if there

were an on-going legislative process, such as in Prentis, one

could not assert even a facial challenge to an allegedly uncon-

stitutional statute or zoning ordinance. Id., 105 L.Ed.2d, at 320;

109 S.Ct., at 2520.

17

on the subject property. A court cannot determine

whether a regulation has gone ‘too far’ unless it knows

how far the regulation goes.” MacDonald, Sommer & Frates

v. Yolo County, 477 U.S. 340, 348 (1986).

2. This Court Has Not Encouraged Facial Takings

Claims. Addressing a facial takings challenge to the Sur-

face Mining Control and Reclamation Act of 1977, this

Court in Hodel v. Virginia Surface Mining & Recl. Assn., 452

U.S. 264 (1981), criticized the District Court for ignoring

the Court’s “oft-repeated admonition” that, particularly

in cases alleging an unconstitutional taking of private

property, the constitutionality of a statute should not be

decided “except in an actual factual setting that makes

such a decision necessary.” Id., at 294-295. The Court

stressed, moreover: “Because appellees’ taking claim

arose in the context of a facial challenge, it presented no

concrete controversy concerning either application of the

Act to particular surface mining operations or its effect

on specific parcels of land.” Id., at 295. The only issue

before the Court, then, was whether the “mere enact-

ment” of the surface mining statute constituted a taking.

Ibid. Finding no taking, this Court held plaintiffs could

not complain about the act because they had not availed

themselves of administrative relief under it, relief possi-

bly working a “mutually acceptable solution” and thus

obviating the need io address constitutional questions.

Virginia Surface Mining, 452 U.S., at 297.

In Keystone Bituminous Coal Assn. v. DeBenedictis, 480

U.S. 470, 490-495 (1987), a facial takings attack on a

Pennsylvania law prohibiting mining-caused subsidence,

this Court cited Virginia Surface Mining, 452 U.S. 264, and

repeated the admonition that takings claims should be

18

presented in actual factual settings. 480 U.S., at 494. It

cautioned plaintiffs of the difficulty in showing that the

“mere enactment” of a regulation denied them economi-

cally viable use of their property, observing that

they “face[d] an uphill battle in making a facial

attack. ...” Id., at 495 (emphasis added).

The admonition of Virginia Surface Mining and the

caution of Keystone reached their apex in Pennell v. San

Jose, 485 U.S. 1 (1988), where an association of apartment-

house owners challenged, as “ ‘facially unconstitutional

and therefore . . . illegal and void’ ”, a rent-control ordi-

nance enacted by the City of San Jose. Id., at 4 (emphasis

added). The measure allowed a hearing officer to con-

sider hardship to the tenant when determining whether

to approve a rent increase proposed by a landlord. Ibid.

This Court held it would be “premature” to consider the

contention that reduction of rent on grounds of hardship

accomplished an unconstitutional transfer of the land-

lord’s property to individua! tenants. Pennell, 485 U.S., at

9. It stressed not only that the tenant hardship clause had

never been relied upon by a hearing officer to reduce

rent, but that the officer was only given discretion, not

compelled, to refuse rent increases on the basis of hard-

ship. Id., at 9-10.

Citing Virginia Surface Mining, 452 U.S. 264, the Pen-

nell Court once again warned that takings cases should be

resolved in actual factual settings making a decision nec-

essary. Pennell, 485 U.S., at 10. It found that merely

because a hearing officer was required to consider hard-

ship to the tenant in fixing a landlord’s rent, there was no

sufficiently concrete factual setting absent a showing that

in a particular case such an action had occurred. Id.

19

In Pennell, then, this Court clearly applied the doc-

trine of ripeness to a facial takings claim.’* That, of

course, is precisely what TSPC maintains this Court has

never done.'” See Pet., at 18-20.

In view of these cases, especially Pennell, it is highly

suspect a takings plaintiff can so easily circumvent the ad

16 In his dissent, Justice Scalia disagreed with the majority

opinion’s conclusion that the takings claim, as distinguished

from other claims, was premature. Pennell, 485 U.S., at 15

(Scalia, J., dissenting). Justice Scalia remarked that, while Key-

stone Bituminous Coal Assn., 480 U.S. 470, had declared a facial

takings claim to be a battle that was “uphill”, “we allowed it to

be fought, and did not declare it ‘premature’.” 485 U.S., at 17.

He observed that the majority in Pennell thus had rejected as

unripe a challenge to the “mere enactment” of a statute. Id., at

18. He implied, however, that a challenge to a regulation

because it denied an owner economically viable use of his or

her land properly may be held unripe in its facial form “where

the issue can be more forcefully presented in an ‘as-applied’

attack....” Id., at 18-19 (emphasis added). He contrasted the

facial takings claim in Pennell, however, stressing it asserted

that the rent-control ordinance did not substantially advance

legitimate state interests. Ibid. The substantiality prong of tak-

ings analysis is not involved in the case at bar — the economi-

cally viable use question is.

'7 Contrary to what TSPC suggests and aside from Pennell

v. San Jose, 485 U.S. 1, this Court has never hesitated to apply

ripeness principles to facial statutory and regulatory chal-

lenges. See, e.g., Pacific Gas & Elec. v. Energy Resources Comm'n,

461 U.S. 190, 200-203 (1983); Buckley v. Valeo, 424 U.S. 1, 113-118

(1976); Regional Rail Reorganization Act Cases, 419 U.S. 102,

138-148 (1974); Abbott Laboratories v. Gardner, 387 U.S. 136,

148-149 (1967); Toilet Goods Assn. v. Gardner, 387 U.S. 158,

164-166 (1967).

20

hoc, factual inquiry by sidestepping a procedure such as

Article V(a) of the 1980 Compact. That procedure, one

over which the property owner has control to initiate and

mandate a timely response, is an extraordinary means to

bridge the gap between facial and as-applied claims.'®

D. GRANTING CERTIORARI POSES LEGAL

AND PRACTICAL PROBLEMS OF

NATIONAL IMPORTANCE

If this Court grants TSPC’s petition — not to mention

reverses the Ninth Circuit’s decision — it will send a

confusing message. While the Court to date unmistakably

has labored to discourage facial takings claims, in favor

of ones presenting justiciable controversies, hearing this

case undoubtedly will encourage prospective plaintiffs to

file the facial variety, at the expense of developing key

facts for the ad hoc, factual inquiry - and of possibly

resolving the matter. Federal courts thus may face a

18 TSPC would short-circuit resort to Article V(a) by

asserting an attempt to amend the plan would be futile because

the plan was adopted over TSPC’s “vehement” opposition.

Pet., at 7 & 15. The argument, however, obfuscates the impor-

tant distinction between a global enactment, such as the

regional plan, and consideration of its applicability to specific

property, a process envisioned by Article V(a). TSPC’s further

complaint, that applying for relief under Article V(a) may well

time-bar a challenge to the regional plan, is equally to no avail.

Pet., at 25, n. 17. Indeed, under Article Vi(j)(4) of the 1980

Compact (App. E, at 105a) a legal action challenging a plan of

the agency “shall be commenced within 60 days after final

action by the agency.” (Emphasis added.) A takings claim, even

to the mere enactment of the plan, obviously would not be

final until relief had been sought and action taken under

Article V(a).

21

superfluity of facial cases brought by litigants merely

attempting to test the “takings waters”, albeit in disre-

gard of procedures such as Article V(a) of the 1980 Com-

pact. And if their facial cases are unsuccessful, the

plaintiffs simply may turn around and ripen as-applied

challenges — and file additional suits. |

Accordingly, we respectfully submit it appears of

national importance to reject TSPC’s petition.

a

_

Vv

CONCLUSION

For these reasons, the petition for writ of certiorari

should be denied.

Dated February 27, 1991.

Respectfully submitted,

Gary A. Owen

CROWELL, SuSICH, Owen & TACKES

510 West Fourth Street

P.O. Box 1000

Carson City, Nevada 89702

Counsel of Record for

Respondent Tahoe Regional

Planning Agency -