Petition for Writ of Certiorari — California v. Tahoe Sierra Preservation
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OFFICE OF THE CLERK
In The
Supreme Court of the United States
October Term, 1994
a
STATE OF CALIFORNIA, STATE OF NEVADA AND
TAHOE REGIONAL PLANNING AGENCY,
Petitioners,
TAHOE SIERRA PRESERVATION COUNCIL, ET AL.,
Respondents.
¢
Petition For A Writ Of Certiorari To The United
States Court Of Appeals For The Ninth Circuit
+
PETITION FOR A WRIT OF CERTIORARI
¢
DaANiEL E. LUNGREN, FRANKIE SUE Det Para,
Attorney General of the Attorney General
State of California of Nevada
Roperick E. WALSTON, Kent B. Hanson,
Chief Assistant Deputy Attorney
Attorney General General
JAN S. STEVENS, 198 S. Carson Street
Assistant Attorney Capitol Complex
General Carson City, Nevada
*RICHARD M. FRANK, 89710
Supervising Deputy (702) 687-7322
Attorney General Attorneys for Petitioner
Carta CarRusy, State of Nevada
pot eens | R. J. Nicoxte, Esq.
eneral
SuSAN E. SCHOLLEY, Esq.
Tahoe Regional Planning
Agency
1515 K Street
Post Office Box 944255
Sacramento, California PO Box 1038
94244-2550 Fevh C —_
(916) 445-8178 epnyr Cove, 89448
(702) 588-4547
Attorneys for Petitioner Attorneys for Petitioner
Stale of Co Tahoe Regional Planning
*Counsel of Record Agency
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
No. 94--94131 1 JAN 3 4 1995
QUESTIONS PRESENTED
Whether, in litigation brought urder an interstate
compact to challenge government regulations adopted
under the terms of that compact, the applicable limita-
tions period should be drawn from the express provisions
of the compact itself rather than from other state or
federal law.
Whether, in litigation brought under 42 U.S.C. sec-
tion 1983 to challenge regulatory action taken to imple-
ment an interstate compact, Wilson v. Garcia, 471 U.S. 261
(1985) requires application of a state law-derived statute
of limitations, as opposed to the Congressionally-
approved statute of limitations prescribed by the compact
itself.
il
PARTIES TO THE PROCEEDINGS
The States of California and Nevada, together with the
Tahoe Regional Planning Agency (a bistate agency cre-
ated by interstate compact), were the appellees in the
consolidated proceedings below. The Tahoe Sierra Preser-
vation Council was the lead appellant in both of those
proceedings. Also appearing as appellants below were
several hundred additional individuals, partnerships and
corporations. Given their number, these parties are listed
in the Appendix to this petition, beginning at page 53a.
con ones wc lll
ili
TABLE OF CONTENTS
Page
RPUPRPRMAPEM? BW OROMEU NEEDS 6 occ cence ccwesecvivers i
FARiigs TO THE PROCEEDINGS ................: il
I IE 6 a vb 6b N ns shod bv nevdeeewcnes 1
Ee rere re ere 2
STATUTORY PROVISIONS INVOLVED............. 2
ey RG Bley) | GE ah Sr 4
REASONS FOR GRANTING THE PETITION....... 10
I. REVIEW IS NECESSARY TO RESOLVE A CON-
FLICT BETWEEN THE CIRCUIT COURTS OF
APPEALS AS TO THE APPROPRIATE STATUTE
OF LIMITATIONS TO BE APPLIED IN LITIGA-
TION BROUGHT UNDER AN INTERSTATE
8 ee eee re 11
il. THE PETITION RAISES AN IMPORTANT
QUESTION OF FEDERAL LAW THAT
SHOULD BE SETTLED BY THIS COURT: THE
APPROPRIATE STATUTE OF LIMITATIONS TO
BE APPLIED IN LITIGATION BROUGHT
UNDER INTERSTATE COMPACTS ENACTED
PURSUANT TO THE COMPACT CLAUSE..... 16
Ill. THE DECISION BELOW FUNDAMENTALLY
MISCONSTRUES AND CONFLICTS WITH
THIS COURT’S DECISION IN WILSON V. GAR-
CIA CONCERNING THE APPLICABLE STAT-
UTE OF LIMITATIONS TO BE APPLIED IN
eS ae ae 23
EE ea re 27
a La ae Sane 6 GN < bes 4 de 8 Cac ede ke os la
iV
TABLE OF CONTENTS —- Continued
Opinion of the U.S. Court of Appeals for the
Ninth Circuit, dated August 10, 1994............. la
Order of the U.S. Court of Appeals for the Ninth
Circuit amending prior opinion, dated Decem-
i es oo eawracaee se baa aces bs ae eee 7a
Opinion of the U.S. District Court for the Dis-
trict of Nevada, dated December 9, 1992.......... 9a
Opinion of the U.S. District Court for the Dis-
trict of Nevada, dated December 9, 1992......... 30a
Order of the U.S. Court of Appeals for the Ninth
Circuit denying petition for rehearing and sug-
gestion for rehearing en banc, dated November
Fg IE A SAG REE CE RE ena 49a
Judgment of the U.S. Court of Appeals for the
Ninth Circuit, originally dated August 10, 1994,
reissued November 15, 1994..................... 5la
Listing of additional parties to the proceedings
CR sae 6s oe Pickneeaee kaise een ee
Tahoe Regional Planning Compact, P.L. 96-551,
Oe ee eee Ce ES ko ho oss cei ieee eee ee 60a
—
V
TABLE OF AUTHORITIES
Page
CASES
Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d
704 (9th Cir. 1992) cert. denied, _-:*U.S. ___—«i113
BS. OR. FO Sede is ch soko os ke ees es 22
City of South Lake Tahoe v. Tahoe Regional Plan-
ning Agency, 664 F.Supp. 1375 (E.D.Cal. 1987) .... 26
Creppel v. United States, 41 F.3d 627 (Fed.Cir.
so, | ee IT Roe dt 4 es ee Ne! 22
Cuyler v. Adams, 449 U.S. 433 (1981) ............... 23
Delaware River Commission v. Coburn, 310 U.S.
OEP CEO 6 656s a a ee a eee 23
Golden Gate Hotel Assn. v. City and County of
San Francisco, 18 F.3d 1482 (9th Cir. 1994)........ 20
Halkias v. General Dynamics Corp., 31 F.3d 224
to A, | ee rere nr eee ee ree re 25
Hensler v. City of Glendale, 8 Cal.4th 1, 876 P.2d
10435, 32 Cal. Retr.20 206 C1908) «oc occ ec eeeisewses 22
Hess v. Port Authority Trans-Hudson Corp., 809
iGump. 1177 DE Wn oe 13
Hess v. Port Authority Trans-Hudson Corp., 8 F.3d
ee Co Re, .. Seer rr errr rere Sy rr re 13, 14
Hess v. Port Authority Trans-Hudson Corp., __
if ee se ae | ee er err reer 13, 36
Jacobson v. Tahoe Regional Planning Agency, 566
Pd 16S (Ot Che WII. voi k cic ccs ceeds ves veces: 24
Lake Country Estates v. Tahoe Regional Planning
Agency, 440 U.S. 391 (1979)...........00000. 5, 11, 14
vi
TABLE ©F AUTHORITIES —- Continued
Page
Lampf v. Gilbertson, __ U.S. __, 111 S.Ct. 2773
CROPEE 62 60s 660040608 800sGRw see 25, 26
League to Save Lake Tahoe v. Tahoe Regional
Planning Agency, 507 F.2d 517 (9th Cir. 1975)
cert. denied, 420 US... $74 (iSZS) «.cccc0ceccccsccces 24
Lufkin v. McCallum, 956 F.2d 1104 (1992)........... 25
Morris v. Washington Metropolitan Area Transit
Authority, 781 F.2d 218 (D.C. Cir. 1986)........... 24
Nebraska v. Central Interstate Low-Level Radioac-
tive Waste Commission, 26 F.3d 77 (8th Cir.
WOOD onc accacsccesdvadeled tn Cee 15
NYSA-ILA Vacation & Holiday Fund v. Waterfront
Commission of New York Harbor, 732 F.2d 292
(De EG, THD 9 oc ccccvsnndhasevskbhs coeeeeeneearars 24
Pavlak v. Church, 727 F.2d 1425 (9th Cir. 1984)...25, 26
Perez v. Seever, 869 F.2d 425 (9th Cir. 1989) cert.
Genied, Gs UB. GEG Cieeee 0 sash ecscewewcweusacess 20
Petty v. Tennessee-Missouri Bridge Commission,
359 US. TF CESee 60050 cna basceckermaiee ise eeiss 23
Rao v. Port of New York Authority, 122 F.Supp.
595 (E.D.N.Y. 1954) aff'd 222 F.2d 362 (2d Cir.
TO on 5 0050 6066509804885 0nb ean ene ese eeasas eins 14
Tahoe Sierra Preservation Council v. Tahoe
Regional Planning Agency, 911 F.2d 1331 (9th
CU SPD 6.55.00 400505 50sec oacnedsanvie teh iea esas 6
Tahoe Sierra Preservation Council v. Tahoe
Regional Planning Agency, 938 F.2d 153 (9th
Che WOWAE oo 8 onc osc0cc0sc0cscdvwcrtbeskeserncenas 6
Vil
TABLE OF AUTHORITIES - Continued
Page
Taylor v. Regents of the University of California,
993 F.2d 710 (9th Cir. 1993) cert. denied, __ US.
more: § 8 UE: Rr rer errr errr 20
Trimen Development Corp. v. King County, 124
Wash.2d 261, 877 F.2d 187 (1994) ......ccccccecscs 22
United States v. Kubrick, 444 U.S. 111 (1979)........ 22
Walsh v. Port Authority Trans-Hudson Corp., 813
kk ae er ere rr rrr rrr 13
Wilson v. Garcia, 471 U.S. 261 (1985)............ passim
WMATA v. One Parcel of Land, 706 F.2d 1312 (4th
a EE Gud ab ou Ow cated G4 Kees heen ee ate 24
UNnitep STATES CONSTITUTION
Article I
OR CO ES PRS! chest Roa inend F24 11
FEDERAL STATUTES
Federal Rules of Civil Procedure
ee A er ee ala Ge aly 5 0 dob eu Miwa en aan 10
Title 28, United States Code
EN or ce eae eh rad Cup aes sass bk STR Ovid aW awa 2
Title 42, United States Code
Code Ue links ee sd hee a Oa ae 6 6 el ae ee
Me Spl re etal sinc ie aie nee MT gs la hich 25
RE ee eet a ee 3
TAIN I Soe, Sel ber Sams pin 17
Title 45, United States Code
RR re ere ee erp eee alae teen bP ier er 14
—
Vili
TABLE OF AUTHORITIES —- Continued
Page
Title 49, United States Code
SE ty EET INT Tee Tee eee ET ORC eon ye 26
STATE STATUTES
California Government Code
er Tee Om eT Tee TE ee er rey ert. 4, 11
New Jersey Statutes Annotated
eae oe Bl re rere rr err eer erry 13
New York Unconsolidated Laws
ee eB... Prec Tee TET Eee eRe Tere 13
og ee A as ee ef
OTHER AUTHORITIES
Columbia River Gorge National Scenic Area Act
100 Stat. 4274 (1986) §§ 5(a), 15(b)(3) ............. 15
Delaware River Basin Compact of 1961 75 Stat. 688
2) | Peer er PT ES POL ne On eee re re 18
Furgurson, “Lake Tahoe - Playing for High
Stakes,” National Geographic (March 1992) at
BEE 5b NGd GARR EALERTS REE Ree enkes 5
Interstate Compacts and Agencies (Council of
State Governamente 1963)... «6. ccccacccenncvess to, 37
New York-New Jersey Port Authority Compact
oe Be Bs Fr any ene 13
Susquehanna River Basin Compact P.L. 91-575
fo EE PET eee eee ee rr re oy Sere 18
Tahoe Regional Planning Compact P.L. 96-551, 94
UE. Se GEE Sinko sn ncaecas eeeearaeadsyieedasess 5
ix
TABLE OF AUTHORITIES ~ Continued
Page
Tahoe Regional Planning Compact
Pe SCR ia eee eks EAw kas Sac test 12
a nen ng es ere Oe ne er eee ores 20
i Leer eee ee eee TT ELECT Ce CUTE eS TTT Oye cCrre 5
i Me. CELE EC RE TEE ee Te Pre re Teer ery 5
et ea oie Vado vabherncatudeseecareceseer eh 12, Z1
oe cc ee 20
| ee es eer eee eS 12, 20, 26
Strong, Tahoe: An Environmental History (U.
es a eae ch aa eenee dee 3
V. Thursby, Interstate Cooperation: A Study of the
po en Oe <) re 18
25S eA
No. 94-___
*
In The
Supreme Court of the United States
October Term, 1994
9%
STATE OF CALIFORNIA, STATE OF NEVADA AND
TAHOE REGIONAL PLANNING AGENCY,
Petitioners,
TAHOE SIERRA PRESERVATION COUNCIL, ET AL.
Respondents.
/
¢
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
4
PETITION FOR A WRIT OF CERTIORARI
*
The State of California, State of Nevada and the
Tahoe Regional Planning Agency respectfully petition for
a writ of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit in this case.
+
OPINIONS BELOW
The August 10, 1994 opinion of the Court of Appeals
(App., infra, pp. la-7a), is reported at 34 F.3d 753. The
December 20, 1994 Order of the Court of Appeals amend-
ing its earlier decision is reproduced at pages 7a-8a of the
Appendix to this petition. The November 2, 1994 Order of
the Court of Appeals denying petitioners’ petition for
rehearing and suggestion for rehearing en banc is repro-
duced at pages 49a-50a of the Appendix. The opinions of
the district court in these cases, subsequently consoli-
dated on appeal, are reported at 808 F.Supp. 1474 and 808
F.Supp. 1484 (see App., infra, pp. 9a-29a and pp. 30a-48a,
respectively).
JURISDICTION
The Court of Appeals entered its initial judgment on
August 10, 1994. (App., infra, pp. 51a-52a.) Petitioners
filed a timely petition for rehearing and suggestion for
rehearing en banc. That petition and request were denied
by the Court of Appeals on November 2, 1994. (See App.,
infra, at pp. 49a-50a.) The jurisdiction of this Court is
invoked under 28 U.S.C. section 1254(1).
. "
STATUTORY PROVISIONS INVOLVED
The provisions of the Tahoe Regional Planning Com-
pact, enacted by the States of California and Nevada and
ratified by Congress, are set forth in full at pages
60a-103a of the Appendix. The statute of limitations con-
tained in the Compact provides in pertinent part as fol-
lows:
“Legal actions arising out of or alleging a viola-
tion of the provisions of this compact, of the
regional plan or of an ordinance or regulation of
the agency or of a permit or a condition of a
permit issued by the agency are governed by the
following provisions:
“(4) A legal action arising out of the adop-
tion or amendment of the regional plan or
of any ordinance or regulation of the
agency, or out of the granting or denial of
any permit, shall be commenced within 60
days after final action of the agency... ”
(P.L. 96-551, 94 Stat. 3233, at Art. VI(j).)
42 U.S.C. section 1983 provides:
“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress. For the
purposes of this section, any Act of Congress
applicable exclusively to the District of Colum-
bia shall be considered to be a statute of the
District of Columbia.”
42 U.S.C. section 1988(a) provides:
“The jurisdiction in civil and criminal matters
conferred on the district courts by the provi-
sions of this Title, and of Title “CIVIL RIGHTS,”
and of Title “CRIMES,” for the protection of all
persons of the United States in their civil rights,
and for their vindication, shall be exercised and
enforced in conformity with the laws of the
United States, so far as such laws are suitable to
carry the same into effect; but in all cases where
they are not adapted to the object, or are defi-
cient in the provisions necessary to furnish suit-
able remedies and punish offenses against law,
the common law, as modified and changed by
the constitution and statutes of the State
wherein the court having jurisdiction of such
civil or criminal cause is held, so far as the same
is not inconsistent with the Constitution and
laws of the United States, shall be extended to
and govern the said courts in the trial and dis-
position of the cause, and, if it is of a criminal
nature, in the infliction of punishment on the
party found guilty.”
STATEMENT OF THE CASE
This case concerns the applicable statute of limita-
tions to be applied in federal litigation brought to chal-
lenge the actions of a bistate entity created pursuant to
interstate compact. The U.S. Court of Appeals for the
Ninth Circuit declined to apply the 60-day statute of
limitations made applicable to such litigation under the
express terms of the Tahoe Regional Planning Compact
itself. Instead, the Court of Appeals relied upon this
Court’s decision in Wilson v. Garcia, 471 U.S. 261 (1985) to
borrow different, longer and variable statutes of limita-
tions from state law, finding that the state statute of
limitations displaces the shorter limitations period speci-
fically contained in the compact.
In 1980, the States of California and Nevada enacted
a revised Tahoe Regional Planning Compact (“the Com-
pact”). (Cal. Government Code § 66801; Nevada N.R.S.
277.200.) The Compact was ratified by Congress on
December 19, 1980. (P.L. 96-551, 94 Stat. 3233.) The 1980
Compact expressly supersedes an earlier version of the
Tahoe Regional Planning Compact (P.L. 91-148, 83 Stat.
360) which was previously reviewed by this Court. (See
Lake Country Estates v. Tahoe Regional Planning Agency, 440
U.S. 391 (1979).) Both the 1980 Compact and its prede-
cessor deal with the same general concern: preservation
of the Lake Tahoe Basin, an internationally-renown area
of unique beauty and ecological significance which is
imperilled by environmental degradation and associated
problems attributable to human development of the
region. (Compact, Art. I; see generally, Strong, Tahoe: An
Environmental History (U. Nebraska Press 1984); Furgur-
son, “Lake Tahoe - Playing for High Stakes,” National
Geographic (March 1992) at 112.)
The Compact creates petitioner Tahoe Regional Plan-
ning Agency (“TRPA”), a bistate entity charged with
planning and regulating development within the Lake
Tahoe Basin. TRPA’s principal duty under the Compact is
to enact and implement a regional plan for the Lake
Tahoe Basin that will control development within the
Tahoe Basin consistent with the region’s documented
environmental carrying capacity. (Compact, Arts. V, VI.)
TRPA adopted its regional plan under the Compact in
April 1984. That regional plan superseded two temporary
ordinances, promulgated by TRPA in 1981 and 1983,
which were intended to limit development during the
interim period in which the 1984 regional plan was being
formulated.
On June 25, 1984, respondents filed two separate but
closely-related lawsuits: one in the U.S. District Court for
the District of Nevada, the other in the U.S. District Court
for the Eastern District of California.1 Both cases pre-
sented a facial, constitutional challenge to TRPA’s 1984
regional plan. Specifically, respondents alleged in their
original complaints that TRPA’s adoption of its 1984
regional plan resulted in an unconstitutional taking of
respondents’ property without compensation, in violation
of the Fifth and Fourteenth Amendments to the U.S.
Constitution. Both complaints named the States of Cali-
fornia and Nevada as co-defendants along with TRPA.
Both district courts subsequently granted petitioners’
motions to dismiss and motions for summary judgment.
In separate appellate decisions, the U.S. Court of Appeals
for the Ninth Circuit affirmed in part and reversed in
part, for reasons not germane to the instant petition. (See
Tahoe Sierra Preservation Council v. Tahoe Regional Planning
Agency, 911 F.2d 1331 (9th Cir. 1990); and Tahoe Sierra
Preservation Council v. Tahoe Regional Planning Agency, 938
F.2d 153 (9th Cir. 1991).) Respondents unsuccessfully peti-
tioned this Court for certiorari in the former case, again
on grounds irrelevant to this petition. (499 U.S. 943
(1991).)
On remand, respondents filed amended complaints
in the District of Nevada (on October 28, 1991) and in the
Eastern District of California (on March 27, 1992).
1 These lawsuits can best be described as massive joinder
actions. The Tahoe Sierra Preservation Council was the lead
plaintiff in each case. Also named as plaintiffs in each lawsuit
were several hundred individuals, corporations and partner-
ships. The latter plaintiffs are identified in the appendix to this
petition. App., pp. 53a-59a.
ee ee
;
Respondents utilized that opportunity to expand signifi-
cantly the scope of their original lawsuits by separately
and facially challenging, in addition to the 1984 regional
plan: a) the interim ordinances previously adopted by
TRPA in 1981 and 1983; and b) TRPA’s subsequent
regional plan, adopted in 1987, which supersedes the
original, 1984 version. Each amended complaint con-
tained three causes of action. Two causes of action sought
damages against TRPA directly under the U.S. Constitu-
tion for an alleged regulatory taking attributable to each
of the above-described TRPA provisions. The third cause
of action sought damages for the alleged deprivation of
the same constitutionally-protected right, but under the
provisions of the Federal Civil Rights Act, 42 U.S.C. sec-
tion 1983.
After both cases were consolidated in the District of
Nevada by stipulation of the parties, petitioners again
moved to dismiss the cases. The district court granted
those motions in separate opinions. (808 F.Supp. 1474
(D.Nev. 1992), reproduced at App., pp. 9a-29a; 808
F.Supp. 1484 (D.Nev. 1992), reproduced at App., pp.
30a-48a.) The district court held in pertinent part that:
a) respondents’ belated regulatory takings
challenge to TRPA’s 1981 and 1983 interim ordi-
nances was time-barred under the 60-day stat-
ute of limitations expressly set forth in Article
VI(j)(4) of the Compact;
b) respondents’ inverse condemnation claim
against TRPA’s 1984 regional plan failed under
principles of causation (because that plan was
enjoined by a separate federal court order,
therefore never took effect, and was ultimately
superseded by TRPA’s 1987 regional plan); and
c) respondents’ newly-initiated attack on the
1987 regional plan was also barred by the Com-
pact’s 60-day statute of limitations, due to the
fact that the 1987 regional plan was markedly
different from the predecessor 1984 plan;
because the new claim did not “relate back” to
the date of the original complaints under Rule
15(c) of the Federal Rules of Civil Procedure;
and because the challenge to the 1987 plan was
not otherwise timely filed under the Compact’s
60-day limitations period. (Ibid.)
Respondents appealed to the U.S. Court of Appeals
for the Ninth Circuit. On appeal, respondents for the first
time advanced the argument that the Compact’s 60-day
statute of limitations should not be applied to their regu-
latory takings claims. Instead, they contended, either no
statute of limitations should be invoked or, alternatively,
a different and longer statute of limitations should be
borrowed from state law under the rule announced by
this Court in Wilson v. Garcia, supra.
The Court of Appeals affirmed in part and reversed
in part in a consolidated decision issued on August 10,
1994. (34 F.3d 753 (9th Cir. 1994), reproduced at App., pp.
la-6a.) Judgment was entered on the same date. (App.,
pp. 51a-52a.) In its decision, the Ninth Circuit affirmed
the district court judgment as to two of the three causes
of action contained in each of respondents’ amended
complaints. The Court of Appeals concluded that “[b]y its
terms, the [Tahoe Regional Planning Compact’s] 60-day
limitation applies to actions arising out of ordinances
enacted by the TRPA.” (App., p. 4a.) It applied that
CT er Ne ere
statute of limitations to find time-barred respondents’
direct constitutional challenges (as set forth in the
amended complaints’ first and second causes of action) to
TRPA’s 1981 and 1983 interim ordinances, as well as
respondents’ belated attack on the new, 1987 regional
plan. (Id. at pp. 4a-5a.)?
Noting, however, that respondents had purported to
bring one cause of action in each of their amended com-
plaints under 42 U.S.C. section 1983, the Court of Appeals
proceeded to conclude that under Wilson v. Garcia, supra,
the Compact’s 60-day limitations period should be
ignored as to those claims, in favor of longer statutes of
limitations borrowed from state law. The Ninth Circuit
ultimately concluded that respondents’ section 1983-
based claim was not time-barred. (Id. at pp. 5a-6a.) Signif-
icantly, the effect of the Court of Appeals’ latter ruling is
to permit respondents to pursue their constitutional
claims against both TRPA’s 1981 and 1983 interim ordi-
nances and its subsequent 1987 regional plan - all under
the rubric of respondents’ section 1983-based causes of
action.°®
Petitioners timely petitioned the Court of Appeals for
rehearing and suggested that it grant rehearing en banc.
? Petitioners do not seek review of the above-described
portion of the Court of Appeals’ decision in this petition.
3 The Court of Appeals further addressed the district
court’s conclusion that respondents’ attack on the 1984 regional
plan was barred under causation principles. The Ninth Circuit
held that the causation issue could not properly be resolved as a
matter of law but, rather, required further evidentiary proceed-
ings in the district court. Id. at 6a. Petitioners do not address or
seek review of that portion of the decision below in this petition.
10
On November 2, 1994, the Court of Appeals issued its
order denying the petition for rehearing, and similarly
rejecting the suggestion for rehearing en banc. (Id. at pp.
49a-50a.)
On December 20, 1994, the Court of Appeals sua
sponte ordered a technical revision to its August 10, 1994
opinion which does not materially affect either that opin-
ion or this petition. (Id. at pp. 7a-8a.)
+
REASONS FOR GRANTING
THE PETITION
The Court’s granting of certiorari is warranted under
Rule 10.1 for the following reasons: 1) to settle a conflict
between the Second, Third and Ninth Circuits regarding
the proper statute of limitations to be applied in litigation
brought under an interstate compact ratified by Con-
gress; 2) to resolve an important question of federal law
not previously addressed by this Court, i.e., whether and
to what extent a limitations period expressly contained in
an interstate compact should be enforced in litigation
brought under that compact; and 3) to correct the Ninth
Circuit’s erroneous application of principles articulated
by this Court in Wilson v. Garcia, supra, where that appli-
cation potentially affects interstate compact-related litiga-
tion nationwide.
9 tae AM aM DE). intiictihay 1
11
I. REVIEW IS NECESSARY TO RESOLVE A CON-
FLICT BETWEEN THE CIRCUIT COURTS OF
APPEALS AS TO THE APPROPRIATE STATUTE OF
LIMITATIONS TO BE APPLIED IN LITIGATION
BROUGHT UNDER AN INTERSTATE COMPACT.
The opinion below, which disregards a statute of
limitations expressly contained in an interstate compact,
conflicts with two decisions of the U.S. District Court for
the District of New Jersey which were subsequently
affirmed by the U.S. Court of Appeals for the Third
Circuit. The opinion below also conflicts with a long-
standing decision of the U.S. District Court for the East-
ern District of New York, subsequently affirmed by the
Second Circuit.
1. Pursuant to the Compact Clause of the United
States Constitution+, the States of California and Nevada
entered into an interstate compact in 1980 to protect and
preserve the unique natural resources of the Lake Tahoe
Basin. (Cal. Government Code § 66801; Nevada N.R.S.
277.200.) Congress ratified the Tahoe Regional Planning
Compact later that same year. (P.L. 96-551, 94 Stat. 3233
(1980).)
The Lake Tahoe region is located along the Califor-
nia-Nevada border and encompasses an area of approx-
imately 500 square miles. As this Court has previously
noted, Lake Tahoe is “famed for its scenic beauty and
pristine quality.” (Lake Country Estates, Inc. v. Tahoe
Regional Planning Agency, 440 U.S. 391, 393, n.2 (1979)
4 Article I, § 10 of the Constitution provides in pertinent
part: “No State shall, without the Consent of Congress. . . enter
into any Agreement or Compact with another State .. .
12
(quoting U.S. Senate report).) The Compact expressly rec-
ognizes the national significance of and federal interest in
the region. (E.g., Art. I(a)(9).)
The Compact (reproduced at pp. 60a-103a of the
Appendix) creates the bistate Tahoe Regional Planning
Agency and directs TRPA to undertake planning and
regulatory activities necessary to strike the appropriate
balance between environmental protection on the one
hand, and human development and enjoyment of the
region on the other. Articles V and VI of the Compact
further mandate TRPA to adopt ordinances and regula-
tions necessary to accomplish those objectives. The cen-
terpiece of TRPA’s regulatory program is the regional
plan it is required under the Compact to formulate for the
Lake Tahoe Basin.
The Compact also contains detailed provisions speci-
fying the manner in which judicial review may be
obtained of regulatory decisions made by TRPA. (See
Compact, Art. VI(j).) The key provision for purposes of
this case is Article VI(j)(4), which expressly provides that
any “legal action arising out of the adoption or amend-
ment of the regional plan or of any ordinance or regula-
tion of [TRPA] shall be commenced within 60 days after final
action by the agency.” (Emphasis added.)
2. Notwithstanding this unambiguous limitations
provision, the opinion below disregards in pertinent part
the Compact’s limitations period, in favor of an alternate
statute of limitations derived from state law.
Respondents’ parallel federal lawsuits seek to invali-
date both TRPA’s regional plan and two interim ordi-
nances that had preceded it. Respondents’ claim is that
13
these regulations, on their face, effected an unconstitu-
tional taking of respondents’ property.
Noting that, in each amended complaint, one of
respondents’ causes of action for a claimed regulatory
taking had been brought under 42 U.S.C. section 1983, the
Court of Appeals declined to apply and enforce the Com-
pact’s 60-day statute of limitations to those claims.
Instead, the Ninth Circuit looked outside the Compact to
different limitations periods, ultimately concluding that
the section 1983-based causes of action were not time-
barred. (App., pp. 5a-6a.)
3. This holding of the Ninth Circuit conflicts with
previous rulings of the U.S. District Court for the District
of New Jersey. Those rulings were, in turn, summarily
affirmed by the U.S. Court of Appeals for the Third
Circuit. The Court is well aware of those cases, inasmuch
as it addressed a distinct issue raised by that litigation
earlier this Term. (Hess v. Port Authority Trans-Hudson
Corp., __ U.S. __, 115 S.Ct. 394 (1994).)
In Walsh v. Port Authority Trans-Hudson Corp., 813
F.Supp. 1095 (D.N.J. 1993) and Hess v. Port Authority
Trans-Hudson Corp., 809 F.Supp. 1172 (D.N.J. 1992), plain-
tiffs sought to recover damages for injuries incurred
while working for the Port Authority Trans-Hudson Cor-
poration (“PATH”), an entity created pursuant to inter-
state compact. The New York-New jersey Port Authority
Compact (42 Stat. 174 (1921)) contains an express limita-
tions period of one year for suits brought against PATH
in federal court. (See N.J. Stat. Ann. §§ 32:1-157, 32:1-163
(West 1990); N.Y. Unconsol. Laws §§ 7101, 7107 (McKin-
ney 1979).) The plaintiffs in Walsh and Hess nevertheless
14
urged the court to disregard that compact’s statute of
limitations in favor of the three-year limitations provision
contained in a separate federal statute, the Federal
Employers’ Liability Act (“FELA”). (See 45 U.S.C. § 56.)
The federal court declined to depart from the express
language of the New York-New Jersey Compact in either
case, finding the New York-New Jersey Port Authority
Compact’s one-year statute of limitations to be fully
applicable. (Waish, supra, 813 F.Supp. at 1098; Hess, supra,
809 F.Supp. at 1184-1185.)
On consolidated appeal to the U.S. Court of Appeals
for the Third Circuit, the district court decisions were
summarily affirmed. (Hess v. Port Authority Trans-Hudson
Corp., 8 F.3d 811 (3d Cir. 1993), rev'd on other grounds, __
US. 0 Be OA
Other courts have similarly enforced statutes of lim-
itation expressly incorporated in interstate compacts,
rejecting claims that alternative, extra-compact limita-
tions periods should be applied. In Rao v. Port of New York
5 This Court’s recent decision in Hess dealt exclusively with
another question raised in that litigation: the issue of PATH’s
immunity from suit under the Eleventh Amendment. The Court
ultimately concluded that PATH is entitled to no such immunity.
115 S.Ct. at 404-406. While the conflicting compact/FELA stat-
utes of limitation are noted in the Court’s opinion (115 S.Ct. at
397), the question at issue here was neither presented by the
petitions for certiorari in Hess nor addressed in the Court’s
opinion.
Of course, the Court previously held that petitioner TRPA is
not immune from federal suit under the Eleventh Amendment
in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,
440 U.S. 391, 400-402 (1979).
elev thine big.
aii ge ee eee |
15
Authority, 122 F.Supp. 595, 597 (E.D.N.Y. 1954), aff’d 222
F.2d 362 (2d Cir. 1955), for example, the U. S. District
Court for the Eastern District of New York enforced the
same one-year limitations period contained in the New
York-New Jersey Port Authority Compact, spurning argu-
ments that a longer, state law-derived statute of limita-
tions period should be followed instead. (Cf. Nebraska v.
Central Interstate Low-Level Radioactive Waste Commission,
26 F.3d 77 (8th Cir. 1994) (applying Central Interstate
Low-Level Radioactive Waste Compact’s 60-day statute of
limitations to defeat state’s federal suit against interstate
commission created by compact).)
4. The Court of Appeals’ decision below presents a
serious conflict vis-a-vis these earlier federal decisions.
Absent review by this Court, regulatory actions by TRPA
will remain subject to judicial challenge for periods far in
excess of those contemplated by the California and Nev-
ada legislatures, or by Congress. The important mandates
of the Compact could well be compromised by such
uncertainty and delay.
The inter-circuit conflict can be expected to become
even more pronounced and disruptive in the future,
given the plentiful and steadily-increasing number of
interstate compacts adopted by all 50 states to address a
broad spectrum of regional problems which do not
respect state borders. (For a compendium of currently-
effective interstate compacts, see Interstate Compacts and
Agencies (Council of State Governments 1983); see also,
representative listing of interstate compacts set forth at
App., pp. 104a-110a. Many of these compacts contain
their own, specific limitations periods. (E.g., Columbia
River Gorge National Scenic Area Act, 100 Stat. 4274
16
(1986), §§ 5(a), 15(b)(3) (directing states of Oregon and
Washington to create Columbia River Gorge Commission
by interstate agreement, and setting 60-day statute of
limitations as to litigation brought thereunder.)) The deci-
sion below raises considerable uncertainty as to whether
and under what circumstances those statutes of limita-
tions will be respected and enforced by the judiciary. If
litigants and courts are free to ignore with impunity
compact-prescribed statutes of limitations in favor of pro-
visions engrafted from external state or federal laws, the
important objectives underlying this broad array of inter-
state agreements will be compromised.
In order to foster uniformity among the states and
federal courts in the enforcement and implementation of
interstate compacts negotiated under the Compact
Clause, the Court should grant this petition and resolve
the conflict.
Il. THE PETITION RAISES AN IMPORTANT QUES-
TION OF FEDERAL LAW THAT SHOULD BE SET-
TLED BY THIS COURT: THE APPROPRIATE
STATUTE OF LIMITATIONS TO BE APPLIED IN
LITIGATION BROUGHT UNDER INTERSTATE
COMPACTS ENACTED PURSUANT TO THE
COMPACT CLAUSE.
There is another, crucial reason why certiorari should
be granted in this case. The petition raises the important
federal question of the appropriate statute of limitations
to be applied in litigation brought in connection with
interstate compacts executed by the several states and
ratified by Congress. In those cases where a compact
eee
17
itself contains a specific statute of limitations, that provi-
sion should be respected and enforced by the courts. The
decision below erred in failing to do so.
1. The twentieth century has witnessed rapid
growth in the use of interstate compacts by the states as a
means of addressing regional concerns. As the Council of
State Governments noted over a decade ago:
“The growth of compact use in this century
. has been striking. Since 1920, over 140
additional interstate compacts have been negoti-
ated, with over 100 of those coming since World
War II. The key to this compact growth has
almost certainly been the increasing complexity
of society, and the demand for creative govern-
mental approaches to its problems.” (Interstate
Compacts and Agencies (Council of State Govern-
ments 1983) at p. vi.)
In recent years, agreements negotiated by the states
under the Compact Clause have been utilized to secure
interstate cooperation in a diverse set of subject areas includ-
ing nuclear energy, natural resource management, health
care, education, transportation, detainers, child welfare, law
enforcement and corrections, taxation and disaster relief.
(For a detailed listing of such interstate compacts, organized
by subject area, see App., pp. 104a-110a.)
Congress has itself fostered the use of interstate com-
pacts in a variety of ways. For example, it has enacted
federal legislation which encourages states to implement
federal mandates through the enactment of such com-
pacts. (See, e.g., Low-Level Radioactive Waste Policy Act
of 1980, 42 U.S.C. § 2021d(a) (encouraging states to enter
into interstate compacts as a means of dealing with low-
18
level radioactive waste disposal on a regional basis).)
Additionally, Congress has in certain cases acted to make
the federal government itself a member of the compact
body, along with the compacting states. (E.g., Delaware
River Basin Compact of 1961, 75 Stat. 688 (1961); Sus-
quehanna River Basin Compact, P.L. 91-575 (1967).)
This Court recognized the critical importance of
interstate compacts to the nation’s welfare as recently as
its decision in Hess v. Port Authority Trans-Hudson Corp.,
__ US. __, 115 S.Ct. 394 (1994). There it observed:
“Bistate entities[’] . . . mission is to address
‘“ “interests and problems that do not coincide
nicely either with the national boundaries or with
State lines — interests that ‘” ‘may be badly
served or not served at all by the ordinary chan-
nels of National or State political action.’ ” ’” (115
S.Ct. at 400 (quoting V. Thursby, Interstate Coopera-
tion: A Study of the Interstate Compact 5 (1953).)
ye
2. One of the principal virtues of the compact mech-
anism is that it allows compacting states to address a
particular problem through the use of a consolidated,
consistent set of rules and policies. Compact provisions
governing judicial review of administrative decisions
made or acts taken pursuant to interstate agreement are a
prominent application of this necessary objective. And
the need for certainty and uniformity is perhaps nowhere
so compelling as with regard to compacts’ statutes of
limitations. Illustrative, again, is the recently-decided
Hess case, in which one amici, the Railway Labor Execu-
tives’ Association, aptly noted:
ett ARTE EN tik LT AIOE EAE,
MILE
19
“[T]he labor organizations are keenly interested
in assuring that PATH employees who may res-
ide in New Jersey and prefer to bring an action
in a district court in their home state, are enti-
tled to the same statute of limitations as their
counterparts who live in New York and prefer to
bring an action in a district court in their home
state. In short, as representatives of PATH
employees, the members of the RLEA are
acutely concerned about the disparate treatment
that occurs among employees when there is a
lack of uniformity in the application of the law
as it applies to employees of the same
employer.” (Brief of Railway Labor Executives’
Assn. as amicus curiae in Hess, supra, at p. 2.)
The need for consistent treatment applies with equal
force in the case of a statute of limitations, negotiated by
the compacting states and ratified by Congress, govern-
ing judicial review of regulatory decisions by bistate
agencies such as TRPA.
3. The implications of a contrary ruling are starkly
illustrated by reference to the practical impact of the
decision below, if left unreviewed. Through enactment of
Article VI(j)(4) of the Compact, the States of California
and Nevada - together with Congress - reflected their
desire to apply a single, 60-day statute of limitations to
legal challenges brought against TRPA in response to its
regulatory decisions. Yet the Ninth Circuit’s opinion,
relying on a strained interpretation of 42 U.S.C. section
1983 (see part III, infra), yields a very different and unfor-
tunate result.
4. The Ninth Circuit has itself interpreted this
Court’s opinion in Wilson v. Garcia, supra, 471 U.S. 261, to
20
compel application of a one-year statute of limitations to
section 1983 cases brought in California, and a two-year
limitations to apply to such cases filed in Nevada.® The
net effect of the Court of Appeals’ decision in this case is
to have the statutes of limitations applicable to the same
regulatory decision of TRPA vary dramatically depending
solely upon the particular U.S. district court in which a
plaintiff chooses to bring suit. And, since venue rules
under the Compact are quite liberal (see Art. VI(j)(2)(B)),
the applicable limitations period will in large part be
subject to the unilateral manipulation of the plaintiff via
creative exercises in forum-shopping.
This, in turn, has several untoward consequences.
First, it injects into Compact-related litigation a degree of
capriciousness which the Compact drafters and Congress
expressly sought to avoid through the enactment of Art.
V1I(j)(4).7 Second, the decision below creates a
6 See, e.g., Golden Gate Hotel Assn. v. City and County of San
Francisco, 18 F.3d 1482, 1485 (9th Cir. 1994); Taylor v. Regents of
the University of California, 993 F.2d 710, 711 (9th Cir. 1993), cert.
denied, ___ U.S. __, 114. S.Ct. 890 (1994) (finding one year limita-
tions period applicable in § 1983 cases in California under Garcia
principles); Perez v. Seever, 869 F.2d 425, 426 (9th Cir. 1989), cert.
denied, 493 U.S. 860 (1989) (two year limitations period applica-
ble in Nevada under Garcia).
7 Indeed, the Compact was enacted to resolve the disparate
results which had previously arisen from application of varying
sets of state and local statutes and regulations. Two of the
Compact’s stated purposes - as is the case with most agree-
ments consummated under the Compact Clause — are the avoid-
ance of multiple jurisdictions acting at cross-purposes with one
another, and an end to conflicting state court rules and deci-
sions. Reflecting these policies, Article I(b) of the Compact
declares: “In order to enhance the efficiency and governmental effec-
ee eS ae eee ee ae
re
i ati
Dae pat Weeden DST onc Realist
NS lah ON Beh Rg AR re Bot ie
PA Wi RE Se
RA RLIR A iA NPA Rc 2. twill
Dial AE ncaa te
21
considerable amount of uncertainty in TRPA’s decision-
making process. Since TRPA is not subject to either the
federal Administrative Procedure Act or its state ana-
logues, the first notice TRPA is likely to receive of a
section 1983-based legal claim is when the federal com-
plaint and summons are served upon it.
Third, the chilling effect upon TRPA’s deliberative
process is considerable, inasmuch as the lower court deci-
sion would allow constitutional challenges — conceivably
accompanied by substantial claims for damages - to be
brought to challenge TRPA plans and ordinances up to
two years after their enactment (and perhaps even longer
in the case of an “as-applied” challenge). Such a result
could reduce the value of or even render worthless prior
expenditures made by TRPA, the compacting states and
other governmental entities to implement such TRPA pro-
grams.
Fourth, such a result is particularly unfair to the
property owners, interest groups and members of the
general public who come to rely upon TRPA’s rules and
policies over time, only to find them challenged in
belated litigation. The settled expectations of those per-
sons, derived from development projects or property
acquisitions specifically facilitated by TRPA regulations,
tiveness of the [Lake Tahoe] region, it is imperative that there be
established a Tahoe Regional Planning Agency with the powers
conferred by this compact... ” (Emphasis added.) Similarly,
Article V(c) of the Compact requires the regional plan adopted
by TRPA to be a “single enforceable plan... ” The judicial
review provisions contained in Article VI(j) of the Compact, of
which the limitations provision is a key element, were designed
with precisely the same ends in mind.
22
could be disrupted through belated litigation brought
years after those regulations have been adopted.
This Court, lower federal courts and state tribunals
have repeatedly stressed the value and need for relatively
short statutes of limitations designed to promote the
prompt prosecution of litigation involving a variety of
federal constitutional and statutory claims. (See, e.g.,
Unites States v. Kubrick, 444 U.S. 111, 117 (1979) (Federal
Tort Claims Act); Creppel v. United States, 41 F.3d 627
(Fed.Cir. 1994) (inverse condemnation claim); Trimen
Development Corp. v. King County, 124 Wash.2d 261, 877
P.2d 187, 195 (1994) (same); Hensler v. City of Glendale, 8
Cal.4th 1, 27-28, 876 P.2d 1043, 1060-1061, 32 Cal.Rptr.2d
244 (1994), pet. for cert. pending (applying state 60-day
statute of limitations to regulatory takings claim).)
Finally, the ineluctable legacy of the decision below
will be to encourage disaffected parties to recast their
legal theories as constitutional claims within the rubric of
section 1983, thereby circumventing the Compact’s 60-
day statute of limitations (and similar provisions con-
tained in other compacts) in favor of the far lengthier
limitations periods prescribed under section 1983. The net
result is effectively to negate the Compact’s and analo-
gous statutes of limitations.®
8 The effect of such a rule is especially pronounced in those
circuits which have concluded that section 1983 is the exclusive
procedural basis for raising federal constitutional claims against
state, regional and local governments in federal court. See, e.g.,
Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir.
1992), cert. denied, __ U.S. __, 113 S. Ct. 1049 (1993).
23
Allowing such a result in the face of an unambiguous
Compact limitations provision is compelled neither by
applicable law nor logic. The instant case presents the
Court with a compelling opportunity to confirm the sanc-
tity and enforceability of statutes of limitations which are
- as here - express provisions of interstate compacts.
Ill. THE DECISION BELOW FUNDAMENTALLY
MISCONSTRUES AND CONFLICTS WITH THIS
COURT’S DECISION IN WILSON V. GARCIA
CONCERNING THE APPLICABLE STATUTE OF
LIMITATIONS TO BE APPLIED IN SECTION
1983 CASES.
The decision below fundamentally misconstrues this
Court’s decision in Wilson v. Garcia, supra, insofar as that
case pertains to the proper statute of limitations to be
applied in litigation brought under interstate compacts.
Given the multiplicity and broad subject matter of such
compacts currently in effect across the nation (see App.,
pp. 103a-110a), the lower court’s opinion is likely to
generate significant mischief in the federal courts. This
represents another, distinct reason why this Court should
grant certiorari.
1. The first critical point is the legal status of inter-
state agreements such as the Compact. This Court has
repeatedly declared that interstate compacts take on the
attributes of federal, rather than state, law by virtue of
their ratification by Congress. (See, e.g., Cuyler v. Adams,
449 U.S. 433, 439-440 (1981); Petty v. Tennessee-Missouri
Bridge Commission, 359 U.S. 275, 278-279 (1959); Delaware
River Commission v. Coburn, 310 U.S. 419, 427 (1940).)
Numerous circuit court decisions have so concluded.
cicada
24
(E.g., Morris v. Washington Metropolitan Area Transit
Authority, 781 F.2d 218, 220 (D.C. Cir. 1986); NYSA-ILA
Vacation & Holiday Fund v. Waterfront Commission of New
York Harbor, 732 F.2d 292, 297 (2d Cir. 1984); WMATA uv.
One Parcel of Land, 706 F.2d 1312, 1317-1319 (4th Cir.
1983).) Indeed, the Ninth Circuit has expressly and
repeatedly held that the very Compact at issue in this
case has been transformed into federal law by virtue of
Congressional approval. (See Jacobson v. Tahoe Regional
Planning Agency, 566 F.2d 1353, 1358 (9th Cir. 1977), aff'd
in part and rev'd in part sub nom. on other grounds, Lake
Country Estates, supra, 440 U.S. 391; League to Save Lake
Tahoe v. Tahoe Regional Planning Agency, 507 F.2d 517, 523
(9th Cir. 1975), cert. denied, 420 U.S. 974 (1975).)
2. Contrary to the apparent interpretation of the
Court of Appeals, this Court held in Wilson v. Garcia that:
a) choice of the applicable statute of limitations in actions
brought under section 1983 is a question of federal law; b)
in the absence of a federally-decreed time limitation, the
“settled practice” has been to adopt a local statute of
limitations as the federal rule; and c) federal courts are
required to rely on state law only to the extent it is not
inconsistent with federal law. (471 U.S. at 266-267.) Noting
that Garcia principally involved the second analytical step
listed above (id. at 268), the Court there proceeded to
hold that in the absence of relevant federal law, federal
courts should apply the relevant personal injury limita-
tions period, derived from the state in which the particu-
lar federal tribunal is located. (Id. at 271-273.)
The key point, however —- one apparently lost on the
Court of Appeals — is that “resort to state law . . . should
not be undertaken before principles of federal law are
25
ee aa
exhausted.” (Wilson v. Garcia, supra, 471 U.S. at 268 (citing
and relying on 42 U.S.C. § 1988); see also, Lufkin v.
McCallum, 956 F.2d 1104, 1108 n.10 (1992) (citing Garcia
and 42 U.S.C. § 1988 in applying federal, rather than
state-derived, statute of limitations principles in § 1983
action).) It is only “[i]f no suitable federal rule exists” that
application of state law should be considered. (Garcia at
267.9)
3. The specific statute of limitations contained in the
Compact, by virtue of its ratification by Congress, repre-
sents just such a federal law. That provision therefore
supersedes and makes unnecessary the second step of the
Garcia analysis — application of the California or Nevada
personal injury limitations period.
In Lampf v. Gilbertson, ___ U.S. ___, 111 S.Ct. 2773, 2778
(1991), this Court recognized that “when the operation of
a state limitations period would frustrate the policies
embraced by federal enactment, this Court has looked to
federal law.” The Court went on in Lampf to discuss the
relevant factors involved, one of which it determined to
be geographical considerations. (Id. at 2779; cf. Halkias v.
General Dynamics Corp., 31 F.3d 224, 235-237 (5th Cir.
1994) (applying federal, rather than state limitations
period citing, inter alia, the need for a uniform federal
rule and forum-shopping problems).) Similarly, in Pavlak
v. Church, 727 F.2d 1425, 1427-1428 (9th Cir. 1984), the
Ninth Circuit itself correctly determined that “[w]here a
° Garcia's further admonition, that a state statute of limita-
tions should only be applied in federal litigation if that state law
is not “inconsistent with the Constitution and laws of the United
States” (id. at 267), is also directly applicable to the present case.
a
26
federal statute of limitations is directly applicable to the
facts, is the most analogous statute of limitations, and
provides a reasonable opportunity to present civil rights
claims, it is the proper statute of limitations to be
applied.”
The analysis set forth in Lampf, Pavlak, et al. similarly
applies in the present case. Rather than erroneously
apply a state-derived limitations period under the second
prong of the Garcia analysis, the Court of Appeal should
have looked to the federal policies and rules embodied in
Article VI(j)(4) of the Compact. Properly viewed, respon-
dents’ section 1983-based regulatory takings claim is sub-
ject to - and time-barred by - the 60-day statute of
limitations expressly set forth in the Compact itself.
4. Finally, it could conceivably be argued that the
section 1983 limitations rule enunciated in Garcia, when
contrasted with the limitations period set forth in Article
VI(j)(4) of the Compact, presents a conflict between com-
peting federal statutes of limitation. A closely analogous
argument was advanced in City of South Lake Tahoe v.
Tahoe Regional Planning Agency, 664 F.Supp. 1375 (E.D.Cal.
1987), where it was claimed that the federal Airline
Deregulation Act, 49 U.S.C. § 1301 et seq., preempted the
Compact with respect to regulation of local airport opera-
tions. The federal court rejected that argument, noting
that the Compact itself constituted federal law which
was: a) enacted by Congress later in time than the dereg-
ulation statute; b) more specific in its subject matter; and
c) limited to a narrower geographic area. Accordingly, the
court held, the Compact controls to the extent of any
conflict with the other federal legislation. (664 F.Supp. at
Ii LE SSA bs (S
BEAST ME EN FTO hae
PRE EES PS aw
Ae ANT Caen t
PL LIMET FRESE Se!
ee ra ee
27
1377.) Petitioners submit that precisely the same analysis
is apposite in the present case.
In sum, the decision below misconstrues this Court's
opinion in Wilson v. Garcia in such a way as to pose a
substantial threat not only to the Compact, but also to the
countless other interstate compacts in effect nationwide
which contain their own specific statutes of limitations.
This represents another compelling reason under Rule
10.1 why review by the Court is warranted.
¢
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
DaNiEL E. LUNGREN,
Attorney General of the
State of California
Roperick E. Watston, Chief
Assistant Attorney General
JAN S. Stevens, Assistant
Attorney General
*RICHARD M. FRANK,
Supervising Deputy
Attorney General
CarRLA CARUSO,
Deputy Attorney General
Attorneys for Petitioner
State of California
*Counsel of Record
January 1995
FRANKIE Sue Det Papa,
Attorney General
of Nevada
Kent B. HANSON,
Deputy Attorney General
Attorneys for Petitioner
State of Nevada
R. J. Nicoue, Esa.
SusAN E. ScCHOLLEY, Esa.
Tahoe Regional Planning
Agency
Attorneys for Petitioner
Tahoe Regional Planning
Agency
la
The TAHOE SIERRA PRESERVATION
COUNCIL, INC., et al., Plaintiffs-Appellants,
V.
The TAHOE REGIONAL PLANNING AGENCY, et al.,
Defendants-Appellees
(Two Cases).
Nos. 93-15113, 93-15114.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 10, 1994.
Decided Aug. 10, 1994.
Property owners brought actions against Tahoe
Regional Planning Agency (TRPA) to challenge ordi-
nances, regulations, and_ prohibitions against develop-
ment. Following remand, 911 F.2d 1331 and 938 F.2d 153,
the United States District Court for the District of Nev-
ada, 808 F.Supp. 1474, 808 F.Supp. 1484, Edward C. Reed,
Jr, J., entered judgment for Agency. Property owners
appealed. The Court of Appeals, Noonan, Circuit Judge,
held that: (1) where facial challenges were made to
Agency’s ordinance and resolution, claims accrued on
dates those measures were adopted; (2) amendments con-
taining claims based on plan adopted by Agency could
not be treated as relating back to initial complaint based
on previous plan; (3) statute of limitations applicable to
property owners’ § 1983 claims was not 60-day special
limitations period of compact which created TRPA; and
(4) district court’s dismissal of § 1983 claim on the plead-
ings on ground of causation was premature.
2a
Affirmed in part, reversed in part, and remanded.
Lawrence L. Hoffman, Hoffman, Lien & Faccinto,
Tahoe City, CA, for plaintiffs-appellants.
Gary A. Owen, Crowell, Susich, Owen & Tackes,
Carson City, NV, for defendants-appellees.
Appeals from the United States District Court for the
District of Nevada.
Before: NOONAN, and T.G. NELSON, Circuit
Judges, and EZRA,” District Judge.
NOONAN, Circuit Judge:
The Tahoe Sierra Preservation Council, Inc. (TSPC)
appeals two judgments of the district court, consolidated
on this appeal, in favor of The Tahoe Regional Planning
Agency (TRPA) and the states of California and Nevada.
The cases focus on regulations adopted by the TRPA in its
efforts to protect the environment of the Lake Tahoe
Basin. The principal issue presented is the effect of a
special statute of limitations pleaded in bar of TSPC’s
actions. We affirm in part, reverse in part and remand for
trial.
PROCEEDINGS
The earlier history of this litigation is set out in TSPC
v. TRPA, 911 F.2d 1331 (9th Cir.1990), cert. denied, 499
U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991), (TSPC 1)
involving property owners on the Nevada side of the
* The Honorable David A. Ezra, United States District
Judge for the District of Hawaii, sitting by designation.
ao yee oe
—
3a
Lake Tahoe Basin and in TSPC v. TRPA, 938 F.2d 153 (9th
Cir.1991) (TSPC 2) involving property owners on the Cali-
fornia side. In each instance we partially affirmed and
partially reversed orders of the district court and
remanded. After remand, TSPC filed an amended com-
plaint in each case. TRPA moved to dismiss on the
ground that the actions were time-barred.
The basis for TRPA’s motions was Article VI(j)(4) of
the Compact Between the States of California and Nevada
creating the TRPA. The article reads as follows:
A legal action arising out of the adoption or
amendment of the regional plan or of any ordi-
nance or regulation of the agency, . . . shall be
commenced within 60 days after final action by
the agency.
Only this statute of limitations was pleaded by TRPA.
TSPC’s claims related to four separate time periods.
The first two are these:
1. On June 25, 1981 TRPA adopted Ordinance
81-5 setting out certain provisional regulations
for the use of the affected land. (The 1981 Ordi-
nance).
2. On August 23, 1983 TRPA enacted Resolu-
tion 83-21 setting out further provisional regula-
tions. (The 1983 Resolution).
TSPC filed its original complaint, in June 1984, chal-
lenging these two actions of TRPA. Two more actions by
TRPA followed:
3. On April 26, 1984 Ordinance 81-5 was made per-
manent by TRPA enacting a Regional Plan (The 1984
Plan). On May 1, 1984, in response to a suit brought by
4a
the State of California, the federal court for the Eastern
District of California enjoined TRPA from carrying out
the plan and inter alia from approving any building
projects. The district court in our case ruled that this
federal injunction prevented the Regional Plan from caus-
ing any harm to TSPC.
4. On June 15, 1987 TRPA adopted a new Regional
Plan that was “markedly different from the 1984 Plan it
replaced.” TSPC I, 911 F.2d at 1334. (The 1987 Plan). TSPC
filed its amended complaints in 1991 and 1992. The dis-
trict court ruled that the 60-day time limitation barred the
amended complaints and that TSPC would not be permit-
ted to relate them back to its 1984 complaints.
Holding that three of the four claims of TSPC were
subject to the 60-day statute of limitations and that no
harm was caused by the 1984 Plan that had been
enjoined, the district court entered judgment for the
defendants. TSPC appeals.
ANALYSIS
1. Application of the 60-day limitation. By its terms,
the 60-day limitation applies to actions arising out of
ordinances enacted by the TRPA. As TSPC made facial
challenges to Ordinance 81-5 and Resolution 83-21, its
claims accrued on the dates these measures were
adopted. Azul-Pacifico, Inc. v. City of Los Angeles, 973
F.2d 704, 705 (9th Cir. 1992), cert. denied, __-~*U.S. __, 113
S.Ct. 1049, 122 L.Ed.2d 357 (1993). Accordingly, TSPC’s
takings claims are barred by their failure to have been
brought within 60 days of the adoption of the 1981 Ordi-
nance and the 1983 Resolution.
5a
Similarly, TSPC’s taking challenges to the 1987
Regional Plan, which were included in the amended com-
plaints filed in 1991 and 1992, are equally barred. This
court has already determined that the 1987 Plan was
markedly different from its 1984 predecessor. TSPC I, 911
F.2d at 1333; TSPC II, 938 F.2d at 155. Accordingly, the
1987 Plan cannot be considered the same transaction or
occurrence as the 1984 Plan, within the meaning of
Fed.R.Civ.P. 15(c). Percy v. San Francisco General Hospi-
tal, 841 F.2d 975, 978 (9th Cir.1988). In addition, defen-
dants were not put on notice as to the extent of plaintiffs’
claims under the 1987 Plan until four years after that Plan
was enacted. Accordingly, amendments containing claims
based on the 1987 Plan cannot be treated as relating back
to the initial complaint. The takings claims concerning the
1987 Plan which were brought more than 60 days after
the cause of action accrued are time-barred.
Plaintiffs argue that in two recent Supreme Court
temporary takings cases the regulations at issue were
amended during the appeal but in neither case was the
plaintiff required to file a new lawsuit. Lucas v. South
Caroline Coastal Council, _-:;U.S. __, __, 112 S.Ct. 2886,
2891, 120 L.Ed.2d 798 (1992); First Lutheran Church v. Los
Angeles County, 482 U.S. 304, 313 n. 7, 107 S.Ct. 2378,
2384-85 n. 7, 96 L.Ed.2d 250 (1987). As the regulations in
the present case were replaced and not amended, plain-
tiffs’ citations are inapposite.
2. The § 1983 claim. TSPC, however, brought one
claim under 42 U.S.C. § 1983 for the violation of its civil
rights by the actions of TRPA in adopting the 1981 Ordi-
nance, the 1983 Resolution, the 1984 Plan and the 1987
Plan. As to § 1983 it is established law that there is a
6a
single state statute of limitation to be applied. Wilson v.
Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938, 1946-47, 85
L.Ed.2d 254 (1985). As expressed by the Supreme Court,
that statute is to apply to “all § 1983 claims.” Id. at 275,
105 S.Ct. at 1947. All § 1983 claims, of course, include
§ 1983 claims based on takings. See Golden Gate Hotel
Ass’n v. City and County of San Francisco, 18 F.3d 1482,
1486 (9th Cir.1994). Obviously, the single state statute of
limitations to be applied in all § 1983 actions cannot be
the special 60-day period provided by the Compact. The
defendants did not plead any other statute of limitations
except the 60-day one. Failing to plead affirmatively any
other statute of limitations, they cannot now rely on any
other. No part of TSPC’s § 1983 claim is time-barred.
3. Causation. TSPC in its § 1983 claim contended
that it was harmed by the 1984 Regional Plan. The district
court dismissed this claim on the pleadings because it
found that the federal district court’s injunction had
supervened and inflicted the harm. However, a question
of causation is preeminently a question of fact, to be
decided after trial. Lies v. Farrell Lines, Inc., 641 F.2d 765,
770 (9th Cir.1981). It was premature to hold that TRPA
inflicted no harm because of the injunction. Accordingly,
TSPC’s § 1983 claim as to the 1984 Plan is also appro-
priately remanded for further proceedings.
Plaintiffs ask for attorneys’ fees, but prematurely;
they have not yet achieved any success on the merits.
AFFIRMED in part, REVERSED in part and
REMANDED for further proceedings in accordance with
this opinion.
ihre tee
7a
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
) No. 93-15113
THE TAHOE SIERRA PRESERVATION ) 3
CounciL, INnc., et al., ) D.C. No.
CV-84-00257-ECR
Plaintiffs-Appellants, :
V. )
THe TAHOE REGIONAL PLANNING ?)
AGENCY, et al., |
Defendants-Appellees. )
)
) No. 93-15114
THE TAHOE SIERRA PRESERVATION )
Counci., INc., et al., ) D.C. No.
er ) CV-84-00257-ECR
Plaintiffs-Appellants,
) ORDER
V. )
THE TAHOE REGIONAL PLANNING )
AGENCY, et al., |
Defendants-Appellees. )
)
(Filed Dec. 20, 1994)
Before: John T. Noonan, Jr., and Thomas G. Nelson,
Circuit Judges, David A. Ezra,* District Judge.
* The Honorable David A. Ezra, United States District
Judge for the District of Hawaii, sitting by designation.
8a
ORDER
The opinion filed on August 10, 1994 is amended
as follows:
At slip op. p.9213, second { 1.5, insert preceding
“As to § 1983 it is established ...”, “The section
1983 claim is proper against TRPA. Lake Country
Estates v. Tahoe Regional Planning Agency, 440 U.S. 391,
399 & n.13 (1979).”
9a
TAHOE SIERRA PRESERVATION
COUNCIL, INC., et al.,
Plaintiffs,
Vv.
TAHOE REGIONAL PLANNING
AGENCY, et al., Defendants.
No. CV-R-84-257-ECR.
United States District Court,
D. Nevada.
Dec. 9, 1992.
Property owners brought action against Tahoe
Regional Planning Agency (TRPA) challenging ordi-
nances, regulations, and prohibitions against develop-
ment. The District Court, Edward C. Reed, Jr., J., held that
takings claims were barred by limitations.
Motion to dismiss amended complaint granted.
Hoffman, Lien, Faccinto & Spitzer, by Lawrence L.
Hoffman, Robert Damon Spitzer and Gregg R. Lien,
Tahoe City, CA, for plaintiffs.
Richard M. Frank, California Dept. of Justice, Sacra-
mento, CA, for State of Cal.
Deputy Atty. Gen., Environmental Div., Carson City,
NV, for State of Nev.
Gary A. Owen, Carson City, NV, for TRPA.
10a
ORDER
EDWARD C. REED, Jr., District Judge.
This consolidated case (now before this Court on a
Motion to Dismiss) arises from two cases filed on June 25,
1984 by the Tahoe Sierra Preservation Council (“TSPC”)
and the several hundred individually-named plaintiffs
who contended that Tahoe Regional Planning Agency’s
(TRPA) 1984 Regional Plan, and its predecessor interim
Ordinance 81-5,! had denied them all “economically via-
ble use” of their properties — primarily vacant but law-
fully-zoned single-family homesites. The TSPC plaintiffs
planned to build permanent or vacation single-family
1 It is helpful to consider this case in light of four distinct
time periods: Period I — June 25, 1981 through August 28, 1983
when TRPA Ordinance 81-5 prohibiting development on the
properties was in effect. A limited exception was made to this
prohibition available only to the Nevada property owners of
Class 1, 2, and 3 lots (not available to Nevada property owners
of SEZ lots). Case-by-case consideration and exceptions were
potentially available to these plaintiffs during this time. Period
Il — August 28, 1983 through April 26, 1984. During this period a
complete moratorium (Resolution 81-23) was instituted and no
property could be developed and the case by case review previ-
ously available to the Nevada property owners had expired.
Period III — April 26, 1984 to June 25, 1987. The 1984 plan was
approved at this time; however, the federal district court for the
Eastern District of California enjoined the TRPA from approving
any projects under the plan pursuant to a suit brought by the
State of California against TRPA alleging that the plan violated
the 1980 Compact. In effect, the District Court prevented the
Plan from being implemented. Period IV — June 25, 1987 TRPA
adopted a new regional plan (the Plan includes rights to appeal
land classifications, transfer rights, and the right to seek amend-
ment to the plan) still in effect.
retin ae Dade Bt sal tea a
a Sanden tot Nephew inc a AT Ay
lla
homes on these lots located in the Tahoe Basin. Plaintiffs
owning property on the Nevada side of the Lake Tahoe
Basin filed their action in this Court. Those owning prop-
erty on the California side, filed their action in the United
States District Court for the Eastern District of Califor-
nia.2 This Order addresses only the Motion to Dismiss the
First Amended Complaint filed by the Nevada-side plain-
tiffs following TSPC I (document # 117); and only the
facts relevant to Nevada half of this dispute will be
reviewed. (The order addressing the California-side
plaintiffs is a separate document to be filed contempora-
neously with this Order).
HISTORY
The original Complaints filed on June 25, 1984 con-
tained nearly identical allegations and legal claims. In
both cases, the plaintiffs sought the following relief from
all defendants: 1) Just Compensation for the taking of
their property; 2) declaratory and injunctive relief based
upon the due process, equal protection, and takings
clauses of the United States Constitution; and 3) damages
under 42 U.S.C. 1983 for deprivation of their constitu-
tionally-protected civil rights. The district courts each
granted motions to dismiss/summary judgment in favor
* The Nevada-side plaintiffs and the California-side plain-
tiffs both consist of two groups: those who own land in area
classified as Stream Environment Zones (the SEZ plaintiffs) and
those who own land in Class 1, 2, and 3 areas (the “Class 1, 2 and
3 plaintiffs”).
12a
of the defendants.* The defendants appealed the deci-
sions to the Ninth Circuit.4
Between the time of the District Court decisions and
oral argument before the Ninth Circuit, the Supreme
Court announced its decision in First English Evangelical
Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107
S.Ct. 2378, 96 L.Ed.2d 250 (1987). In First English, the
Supreme Court held that “temporary takings which deny
a landowner all the use of his property are not different
in kind from permanent takings, for which the Constitu-
tion clearly requires compensation.” First English, 482
U.S. at 318, 107 S.Ct. at 2388.5 The rulings by the Court of
Appeals were, in part, guided by this decision.
The Ninth Circuit decided the case appealed from the
District Court of Nevada on August 27, 1990 (TSPC I)®
3 The named defendants were TRPA, the States of Califor-
nia and Nevada, and the individual members of the TRPA Gov-
erning Board. The individual members of TRPA’s 1984
Governing Board have subsequently been voluntarily dismissed
by plaintiffs.
4# On appeal the plaintiffs did not contest the dismissal of
the monetary damage claims as to the States of California and
Nevada, which had been dismissed based on Eleventh Amend-
ment immunity grounds.
> The Ninth Circuit also found that continuing to distin-
guish those agencies with the power of condemnation (which
can appropriately be held liable in damages for inverse condem-
nation) from those without such power (immune from liability
for inverse condemnation) would “unavoidably conflict with
the reasoning of First English.” TSPC I at 1341.
6 “TSPC I” hereinafter refers to the Nevada-side decision
by the Ninth Circuit Tahoe Sierra Preserv. v. Tahoe Reg. Planning
Agency, 911 F.2d 1331 (9th Cir.1990).
bi, aed ds
er od
13a
and the case appealed from the Eastern District of Cali-
fornia on June 10, 1991 (TSPC IJ).7 In TSPC I the Circuit
Court held that (1) some claims were unripe; (2) TRPA
was not immune from liability for inverse condemnation;
and (3) owners of property subject to prohibition against
development had a claim for reimbursement of assess-
ments independent of any claim for taking of land itself.
Specifically, the Court in TSPC I dismissed all claims
for declaratory and injunctive relief as being moot in
view of TRPA’s subsequent adoption of its 1987 Regional
Plan (distinguishing declaratory and injunctive relief as
providing no benefit to the plaintiffs as compared to
compensatory damages, still of value, for a temporary
taking). The Court allowed the plaintiffs to seek damages
for deprivation of the plaintiffs’ right to enjoy certain
public improvements for which they had previously paid
assessments.’ Most important to the matter at hand, by
finding that the TRPA was not immune from liability and
that a right to compensation for “temporary taking”
exists, the Court also reinstated a portion of the Nevada
plaintiffs’ claims for just compensation as a result of the
7 “TSPC II” hereinafter refers to the California-side deci-
sion of the Ninth Circuit Tahoe Sierra Preserv. v. Tahoe Reg. Plan-
ning Agency, 938 F.2d 153 (9th Cir.1991).
8 The Court of Appeals limited this cause of action to
assessments actually paid to TRPA. Because no assessments
were paid to TRPA in this case, no claims have been raised
pursuant to the ruling on this point. TSPC IJ found that property
owners are entitled to pursue a refund from the agency that
collected the assessments for improvements during a temporary
taking. While TRPA did not collect assessments in this case,
assessments may have been collected by a local improvement
district.
14a
alleged regulatory takings. Partnered with this finding
was the Circuit Court’s reinstatement of the plaintiffs’
Civil Rights Act claims to the extent they were based
upon denial of Just Compensation relating to the alleged
regulatory takings.
The ruling by the Court of Appeals is complicated
however by the affirmation of the District Court’s dis-
missals due to ripeness and mootness. With regard to the
alleged regulatory takings arising from TRPA’s adoption
of its 1984 Plan (Period IJi), Judge Reinhardt found the
claims to be unripe, Judge Fletcher found the claims to be
moot, and Judge Kozinski in a dissenting opinion, found
the claims to be ripe for review. Plaintiffs encourage this
Court to consider the Appellate Court’s finding in TSPC
II where the position of Judge Kozinski — that the plain-
tiffs’ claims as to the 1984 Plan are in fact ripe for review
despite the fact that the plaintiffs did not seek to amend
the plan - was unanimously adopted. There is no differ-
ence in the facts between the Nevada plaintiffs and the
California plaintiffs with regard to the 1984 Plan; how-
ever, this Court chooses to follow the law-of-the-case
doctrine. Despite the inconsistency of the Appellate
Court rulings, the per curium opinion in TSPC I dis-
missed the claims. This Court is not free to disregard the
ruling in TSPC I that ripeness standards preclude the
Nevada plaintiffs from pursuing a takings claim pertain-
ing to the 1984 Regional Plan. The alternative theory of
futility pursued by the plaintiffs is irrelevant in light of
the injunction ordered by the Eastern District Court of
California during this time and is discussed later in this
Order.
15a
The Court of Appeals also upheld the dismissal of
claims as they pertained to the Nevada Class 1, 2, and 3
plaintiffs for the 26-month period from June 25, 1981
through August 28, 1983 (Period I) because these plain-
tiffs did not pursue the available “case-by-case excep-
tion.” The Court held that the claims were not ripe and
affirmed the dismissal. Plaintiffs’ attempt to now claim
that case-by-case review would have been “futile” cannot
change the ruling by the Court of Appeals. The futility
doctrine is not a new theory created by the Appellate
Court. The plaintiffs should have made this argument at
the time the claims were being considered by the Court.
This Court will not consider cursory and untimely argu-
ments on issues that have already been decided. Dis-
missal of the claims pertaining to Nevada Class 1, 2, and
3 plaintiffs for the period from June 25, 1981 through
August 28, 1983 (Period I) will not be reconsidered.
Pursuant to the rulings by the Ninth Circuit in TSPC
I and TSPC II and the above discussion, the only claims
that may be appropriately included in the Plaintiffs’ First
Amended Complaint are limited to Just Compensation
for the regulatory taking of property and damages for
deprivation of constitutionally-protected civil rights pur-
suant to the Federal Civil Rights Act. These claims are
further limited by the previous dismissal of allegations
arising from Period I as to the Nevada Class 1, 2, and 3
plaintiffs and from Period III as to all the Nevada plain-
tiffs. This leaves only Period I as to the SEZ plaintiffs,
Period II as to all the plaintiffs, and Period IV as to all the
plaintiffs as relevant for further consideration in this
case.
16a
CASE ON REMAND
After receiving permission from this Court, the Nev-
ada-side plaintiffs filed their First Amended Complaint
on October 28, 1991 (the California-side plaintiffs filed
their First Amended Complaint on March 27, 1992). The
First Amended Complaint states three claims for relief.
The first claim is applicable to the SEZ plaintiffs alleging
a regulatory taking of the plaintiffs’ properties resulting
from the prohibitions contained in TRPA’s 1984 Plan and
predecessor “interim moratoria,”? and continued in force
and effect by TRPA’s 1987 Plan. In the second claim for
relief, the Class 1, 2, and 3 plaintiffs seek the identical
relief. In the third claim for relief, all plaintiffs seek
additional damages for deprivation of their Constitu-
| tionally-protected civil rights pursuant to the Federal
Civil Rights Act. The gravamen of the Complaint is that
the TRPA’s regulation, at face value and without refer-
| ence to the any of the regulations application to any
particular parcel, effects an unconstitutional taking of
property. This is to be contrasted with an “as applied”
takings claim, in which it is alleged that the particular
impact of the regulation upon a given parcel raises an
inverse condemnation claim. Facial challenges are appro-
priate for disposition by pre-trial motion. See e.g., Key-
stone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470,
107 S.Ct. 1232, 94 L.Ed.2d 472 (1987).
9 Plaintiffs use “interim moratoria” to include Period I
(June 25, 1981 through August 28, 1983 — Ordinance 81-5) and
Period II (August 28, 1983 through April 26, 1984 — Resolution
83-21).
_ Pare eee ey ae
fo gr Tin. Se pets Se atle
17a
It is apparent from the First Amended Complaint that
the plaintiffs have taken a broad view of the Court’s
decisions in TSPC I and TSPC II. The plaintiffs have
coupled their understanding of the appellate decisions
with a liberal reading of First English, supra and Lucas v.
South Carolina Coastal Council, __ U.S. ___, 112 S.Ct. 2886,
120 L.Ed.2d 798 (1992) to expand their takings claims in
the Amended Complaint. Rather than realizing that lim-
ited claims, further limited by certain facts, were found to
be potentially viable by the Appellate Court, the plaintiffs
have made new allegations and ignored the limitations
prescribed.
In response to the First Amended Complaints, both
the TRPA and the State of California filed Motions to
Dismiss (documents #140-141 and #145-146). The motion
on behalf of California incorporated all of the TRPA’s
arguments and TRPA joined the State of California in its
Motion to Dismiss. Plaintiffs opposed the Motions and
defendants replied. The matter is now ripe for the Court’s
decision.
A court may grant a motion to dismiss for failure to
state a claim on which relief can be granted only if “it
appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him
to relief.” Adult Video Assoc. v. Barr 960 F.2d 781, 784 (9th
Cir.1992). A court may only look to the facts alleged in
the complaint when deciding whether to grant a 12(b)(6)
motion. Id. All material facts alleged in the complaint
must be taken as true and construed in the light most
favorable to the nonmoving party. Amfac Mortgage Corp. v.
Arizona Mall of Tempe 583 F.2d 426, 430 (9th Cir. 1978).
However, it is not proper for the Court to assume that
18a
“the pleader can prove facts that he has not alleged or
that the defendants have violated the . . . laws in ways
that have not been alleged.” Associated General Contractors
v. California State Council, 459 U.S. 519, 526, 103 S.Ct. 897,
902, 74 L.Ed.2d 723 (1983).
Keeping in mind the deference which this Court is
bound to give to the plaintiffs allegations, each claim will
be considered in the context of the relevant time period of
the takings claims.
Period I (June 25, 1981 —- August 28, 1983 -— Ordinance
81-5)
The allegations of a regulatory taking arising from
the period of June 25, 1981 through August 28, 1983
(Ordinance 81-5 period) will be discussed first. As dis-
cussed above, the plaintiffs’ claims are limited to the SEZ
plaintiffs during this period. This Court has previously
found, and the Appellate Court affirmed, that due to the
availability of case-by-case review with respect too the
Class 1, 2, and 3 plaintiffs their claims are not ripe (and
can never be ripe because review was never sought while
the regulation was in effect). The defendants have raised
a legitimate statute of limitations defense. A 60-day stat-
ute of limitation is imposed by the Compact for any legal
action arising out of any ordinance of the agency. Tahoe
Regional Planning Compact (Public Law 96-551, 94 Stat.
3233; Cal.Gov.Code §§ 66800 & 66801; N.R.S. § 277.190 &
§ 277.200 Art. VI(j)(4)).2° The TRPA took final action to
10 The statute reads in pertinent part: “A legal action aris-
ing out of the adoption or amendment of the regional plan or of
any ordinance or regulation of the agency, or out of the granting
vee rlhy Died alah ARONA AD Denice soe oeee ABS aie
19a
enact the ordinance alleged to constitute a facial taking
on June 25, 1981. The first complaint was not filed in this
case until 1984.
Plaintiffs’ efforts to save themselves from the require-
ment of filing prompt claims are not persuasive. Some
takings do occur gradually and incrementally thereby
extending the appropriate time period for filing an
inverse condemnation suit until the consequences of the
event are fully known. See United States v. Dickinson, 331
U.S. 745, 746-750, 67 S.Ct. 1382, 1383-85, 91 L.Ed. 1789
(1947) (physical taking ultimately took place due to flood-
ing caused by Federal Government damming a river -
plaintiff permitted to file complaint when flooding dam-
age could be determined); Pierpont Inn, Inc. v. State, 70
Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969) (plaintiff
permitted to file complaint after property was appropri-
ated for a freeway but prior to completion of construction
project).
The case at hand arises from a claim against a regula-
tory taking. There has been no continuous physical inva-
sion of the plaintiffs land culminating in a taking. It was
clear from the day Ordinance 81-5 was adopted that
development was prohibited as to the SEZ plaintiffs. A
facial takings claim based upon Ordinance 81-5 became
actionable upon the date that TRPA took final action to
enact the ordinance. There is no reason for the plaintiffs’
delay in alleging a regulatory taking as a result of this
Ordinance. Moreover, the defendants have not waived
or denial of any permit, shall be commenced within 60 days
after final action by the agency.”
20a
their right to raise this defense. There has been no
adverse ruling by any of the Courts regarding the limita-
tion of action issue as it pertains to Ordinance 81-5. In
fact, during the litigation of this case, the Courts have
consistently shown an overt unwillingness to reach deci-
sions regarding the statute of limitations issues that had
not been raised while alerting the parties and this Court
that statute of limitations issues may be relevant. As there
were no adverse rulings below, there was no basis for
cross appeal and accordingly no waiver of the defense
has occurred. “Even if an appellee does not file a cross
appeal... he may defend the judgment in his favor with
any argument that is supported by the record, regardless
of whether it was ignored by the Court.” (9 Moore’s
Federal Practice (2d ed. 1992) J 204.11[3] at 4-47). TSPC’s
regulatory takings claims arising from Period I (Ordi-
nance 81-5) are barred by the 60-day limitation of actions
imposed by the Compact and are dismissed.
Period II (August 28, 1983-April 26, 1984 — Resolution
83-21)
As to the second relevant period, Resolution 83-21
was in effect from August 28, 1983 through April 26, 1984
(the eight-month moratorium). The 60-day statute of lim-
itation applies to this period as well. A temporary resolu-
tion falls within the scope of the statute of limitation
applies to this period as well. A temporary resolution
falls within the scope of the statute of limitations pro-
vided in the Compact. The Compact expressly states that
“any regulation” of the Agency is subject to a 60-day
igh et A ta ican i Wi
Bia 8 hs
a
_—e
hee ey)
2la
statute of limitations.1! There is no logical argument as to
why Board Resolution 83-21 would not fall within the
scope of this statute. However, the Compact further
expresses that any legal actions shall take place 60 days
after “final action” by the agency. Resolution 83-21 was
temporary in nature — admittedly an interim measure. !?
The notion that a “temporary resolution” amounts to
“final action” deserves discussion.
There is little authority as to what constitutes “final
action” on the part of TRPA. Previous discussions have
centered around permit-specific disputes. See Cal. Tahoe
Regional Planning v. Sahara Tahoe Corp., 504 F.Supp. 751
(D.Nev.1980) (Court held that when TRPA treated a sec-
ond application for permit for parking garage as request
to reconsider Agency’s previous denial of the request and
then denied the request for a rehearing, the Agency took
a “final action”); Sederquist v. Tahoe Regional Planning
Agency, 652 F.Supp. 341 (D.Nev.1987). (Court held that
TRPA’s conditional approval of construction, rather than
issuance of final permit, was “final action” within mean-
ing of Compact providing for permit expiration three
years after date of final action.)
11 See note 10 above.
12 The TRPA Governing Board temporarily suspended issu-
ance of permits for projects because a serious legal question
arose concerning TRPA’s ability to continue project review and
approval beyond August 26, 1983 without having an amended
plan in effect. Article V(c) of the Compact required the amended
plan to be adopted within one year after the environmental
thresholds were established. The environmental thresholds had
been established on August 26, 1982.
22a
Defendants assert that final action occurs at the time
of adoption. Determination of when final action occurred
as to the moratorium is crucial because if TRPA’s con-
struction is applied, then the plaintiffs are time-barred
from any claim of a facial taking during this period.
However, if it can be argued that a temporary resolution
implementing a moratorium, does not constitute a final
action, then the plaintiffs may be able to save this claim.
Interpretation given a statute by the agency charged
with its administration is entitled to deference from the
courts, Thomas v. Peterson, 753 F.2d 754, 762 (9th Cir.1985).
It has already been established that the term “final
action” is ambiguous. See Sederquist, 652 F.Supp. 341, 345.
In the case at hand it could be interpreted to mean the
Board’s adoption of Resolution 83-21 or it could be inter-
preted to mean the final adoption of the amended plan
following the Board’s interim measure. If the court deter-
mines that legislation is ambiguous, the question is
whether the agency’s interpretation is a reasonable one,
consistent with the statute’s overall purpose. Chevron,
U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.
837, 842-843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If
TRPA’s interpretation is reasonable, then its interpreta-
tion controls. These legal principles are incorporated into
the Compact. 1980 Compact, Article VI(j)(5).
Despite its temporary nature (8 months) the policy
and effect of the Resolution was clear — no development
permitted. The resolution was neither ambiguous nor its
application inconsistent. The day the Board adopted the
Resolution it took final action as to what development
could occur prior to the adoption of the 1987 Plan. Fur-
ther, finding the adoption of a resolution as final action is
23a
consistent with Sederquist, supra where the conditional
approval, although an interim measure, was found to
constitute final action. Finally, the TRPA’s interpretation
of the adoption as “final action” is in accord with the
implied purpose of Article VI(j) of the Compact to place a
reasonable time-bar on actions. TRPA’s interpretation of
“final action” as to the adoption of Resolution 83-21 is
reasonable. Consequently, TSPC’s claims based upon
Period II Resolution 83-21 are time-barred and dismissed.
Period III (April 26, 1984-June 25, 1987 — 1984 Plan and
Court Injunction)
The third relevant time period (1984 Plan and the
court ordered injunction) has been discussed above.
Plaintiffs have no valid claims relevant to this time period
as they have been previously dismissed by this Court and
the Court of Appeals as being unripe. Moreover, the
orders of the federal district court for the Eastern District
of California enjoining TRPA from implementing the plan
prevent TSPC from having a legitimate cause of action
with relation to this period. This Court need not address
the plaintiffs new assertion — that seeking an amendment
to the plan would have been “futile” and therefore the
ripeness defense is without merit —- due to the district
court’s injunction during this time. California Federal
District Court’s orders enjoining TRPA from implement-
ing the plan prevent TSPC from having a legitimate cause
of action with relation to this period. This Court need not
address the plaintiffs new assertion — that seeking an
amendment to the plan would have been “futile” and
therefore the ripeness defense is without merit — due to
24a
the injunction by the District Court of Eastern Califor-
nia.!3
The Court of Appeals specifically retained this issue
for this Court. “We leave it to the district court to deter-
mine whether the intervening injunction prevented the
1984 Plan from causing any harm to the plaintiffs.” TSCP
II at 157. TSPC’s taking challenge to the 1984 Regional
Plan must fail because that plan was enjoined and never
implemented, hence the requisite causation between the
1984 Plan and TSPC’s purported injury is lacking as a
matter of law. The injunction ordered by the federal court
prevented the 1984 Plan from ever taking effect. TRPA
was enjoined from granting any development or building
permit. Because the plan was never put into effect it
could not have caused a taking. The claim fails for lack of
causation. See Carpenter v. Tahoe Regional Planning Agency,
804 F.Supp. 1316 (D.Nev.). TSPC’s claims for relief arising
from Period III are dismissed.
Period IV (June 25, 1987-present - 1987 Plan)
The 1987 Plan encompasses the last relevant time
period to be addressed. Claims arising under this plan
are also dismissed. The conclusory allegation that the
1987 Plan is merely a continuation of the 1984 Plan and
other regulations that allegedly amount to a taking is not
persuasive to this Court even in the deferential light the
13 The State of California filed suit against TRPA on April
26, 1984 alleging that the 1984 Plan violated the Compact. Pur-
suant to this suit, the federal district court for the Eastern Dis-
trict of California ordered a preliminary injunction, preventing
TRPA from authorizing any development. The injunction was
extended through July 5, 1987.
Al Hat Rnsilaiaic he aitlede set Lo AS
aha nan sessltean Ain rte BO Vik
25a
Court must use in evaluating the plaintiffs claims. This
action was originally filed in 1984 long before the 1987
Plan was in effect.
Raising allegations against TRPA on the basis of the 1987
Plan runs afoul of the statute of limitations. “An amendment
of a pleading relates back to the date of the original pleading
when... (2) the claim or defense asserted in the amended
pleading arose out of the conduct, transaction or occurrence
set forth or attempted to be set forth in the original plead-
ing...” Fed.R.Civ.P. Rule 15(c)(2). When a plaintiff attempts
to allege an entirely different transaction by amendment,
Rule 15(c) will not authorize relation back. 6A. Wright, Miller
& Kane, Federal Practice and Procedure § 1497 (2d ed. 1990).
The TRPA’s regulatory scheme embodied by the 1987 Plan is
“markedly different from the 1984 Plan it replaced.” TSPC I
at 1334. As a result, the enlarged lawsuit now brought by
TSPC rests on a different factual basis than those claims
which survived from the original complaints. Amendments
to complaints alleging claims arising from different contracts,
different patents and separate violations do not “relate” back
to the original complaint. Amendments that merely correct
technical deficiencies or expand or modify the facts alleged
in the earlier pleading meet the Rule 15(c) test and will relate
back.
Because the rationale of the relation back rule is to
ameliorate the effect of the statute of limitations! rather
than to promote the joinder of claims and parties, the
standard for determining whether amendments qualify
'* The Court notes that the time period for filing such an
action is now barred by the 60 day statute of limitation for
actions against the 1987 Plan.
26a
under Rule 15(c) is not simply an identity of transaction
test; although not expressly mentioned in the rule, the
courts also inquire into whether the opposing party has
been put on notice regarding the claim raised by the
amended pleading. Id. In this case the allegations of
taking pursuant to. the 1987 Plan do not rest on the same
general conduct, transaction or occurrence as the earlier
claims. Nor does the fact that plaintiffs were pursuing
taking claims in 1984 put the plaintiffs on notice that six
years later (and approximately four years after the adop-
tion of the plan at issue) an entirely different plan would
be attacked as constituting a facial taking.
While Rule 15(a) does place an additional burden on
the defendants in this case to have filed a separate com-
plaint against the TRPA with regard to its 1987 plan, the
alternative is to place an additional burden on the plain-
tiff — the burden of defending a new claim after 6 years of
litigation centered around distinctly different claims and
facts. The plaintiffs arguments of inconvenience are well
taken; however, they do not weigh heavier than the ratio-
nal behind Rule 15. Nor does justice require that this
Court give leave to the amendment with regard to the
new claims arising from the 1987 Plan. The plaintiffs’
concern that the defendants would have “squealed like
stuck pigs” had they (the plaintiffs) sought to file
amended complaints while the matter was on appeal
presents a colorful image but an unconvincing argument.
Requiring the plaintiff to file a separate complaint against
the TRPA for the 1987 [sic] does not amount to piecemeal
litigation. The 1987 Plan is completely different. It is not
merely an amended 1984 Plan without substantive
changes (compare with Tollis v. San Bernardino County, 827
27a
F.2d 1329 (9th Cir, 1987)) nor is a continuing process of a
physical intrusion (compare with United States v. Dickin-
son, supra) nor does the 1987 Plan merely add a variance
provision to the original statute (compare with Lucas v.
South Carolina Coastal Council, supra).
The Ninth Circuit by mentioning the 1987 plan in its
mootness analysis of certain claims did not open the door
for claims arising from the Plan to be included in the
Amended Complaints. If anything, the Court’s affirma-
tion of the dismissal of claims for declaratory and injunc-
tive relief from the 1984 Plan because they were mooted
by the 1987 Plan, demonstrates the Courts recognition
that an entirely new statutory scheme was in place. A
claim based upon an entirely different regulatory plan
cannot be added to an existing complaint. The 1987 Plan
was developed from discussions lasting over two years in
a “consensus building workshop” initiated by TRPA and
designed to include the broadest possible range of private
and governmental interests and viewpoints. Moreover,
the 1987 Plan could not be considered a continuation of
the 1984 Plan because the 1984 Plan never went into effect
as a result of the District Court of California’s order
enjoining the TRPA from implementing the plan.
While the Court dismisses the claims arising from the
1987 Plan on the basis of Rule 15 and the time-bar, it is
also noted that claims in respect to the 1987 Plan would
not be ripe until the plaintiffs avail themselves of the
mechanisms in the 1987 Plan (e.g. challenging the IPES
Scores, exploration of development transfer, and amend-
ment to the plan). Plaintiffs must avail themselves of the
options available as a prerequisite to any claim against
28a
TRPA. TSPC’s claims based upon the 1987 Plan are dis-
missed because they are not properly joined, do not relate
back to the 1984 Plan and are now time-barred by the 60-
day statute of limitations and are not ripe even if they
had been validly asserted.
CONCLUSION
The Court of Appeals in TSPC I and TSPC II found
that a temporary takings claim can exist and should
compensated even after the period of the taking has
passed. The Circuit Court relied on First English for this
finding and now Lucas adds support to such a claim.
However, the Circuit Court did not render any decisions
as to potential statute of limitations defenses, the effect of
the court injunction during the 1984 Plan, or the ripeness
or appropriateness of any the claims arising from the
1987 Plan. Plaintiffs attempted to simplify this very com-
plex matter by focusing their arguments on liberal read-
ings of the two new Supreme Court cases and a broad
reading of the Court of Appeals’ limited rulings. Nev-
ertheless, plaintiffs claims cannot survive a Motion to
Dismiss.
As to plaintiffs First Claim for Relief (SEZ plaintiffs),
The claim arising from Period I is time-barred and dis-
missed. The claim arising from Period II is time-barred
and dismissed. The claim arising from Period III lacks the
requisite causation and is dismissed. The claim arising
from Period IV was made in violation of Fed.R.Civ.P. Rule
15, is time-barred, is not ripe, and is dismissed.
As to plaintiffs’ Second Claim for Relief (Class 1, 2,
and 3 plaintiffs). The claim arising from Period I was
- . . . . Roe or patie tandiabeite BTC BAR ur eh CI pone e,~.
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<iaias Nhnctel apc aek nar dead aks 35 Seceaiesa ieee, . Kilt te a hie wel cor — :
Goce Mobeni ahi wines Sod ws Sha
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e
29a
dismissed and affirmed on appeal on the basis of ripe-
ness. The claim arising from Period II is time-barred and
dismissed. The claim arising from Period III lacks the
requisite causation and is dismissed. The claim arising
from Period IV was made in violation of Fed.R.Civ.P. Rule
15, is time-barred, is not ripe and is dismissed.
As to plaintiffs’ Third Claim for Relief (SEZ and Class
1, 2, and 3 plaintiffs) the claim was limited to the extent it
was based on the claims of denial of Just Compensation.
No basis for the claim exists in light of the dismissal of
both claims One and Two as to Periods I, II, III and IV.
Claim Three is dismissed.
IT IS, THEREFORE, HEREBY ORDERED that defen-
dants’ Motion to Dismiss Plaintiffs’ First Amended Com-
plaint (document #117) is GRANTED. The Clerk shall
enter judgement accordingly.
30a
TAHOE SIERRA PRESERVATION
COUNCIL, INC., et al.,
Plaintiffs,
Vv.
TAHOE REGIONAL PLANNING
AGENCY, et al., Defendants.
No. CV-R-84-257-ECR.
United States District Court,
D. Nevada.
Dec. 9, 1992.
Property owners brought action against Tahoe
Regional Planning Agency (TRPA) challenging ordi-
nances, regulations, and prohibitions against develop-
ment. The United States District Court for the Eastern
District of California, Edward J. Garcia, J., dismissed
some claims. Appeal was taken. The Court of Appeals,
Beezer, Circuit Judge, 938 F.2d 153, affirmed in part,
reversed in part and remanded. The United States District
Court for the District of Nevada, Edward C. Reed, Jr., J.,
held that claims wete barred by limitations.
Motion to dismiss amended complaint granted.
Hoffman, Lien, Faccinto & Spitzer, by Lawrence L.
Hoffman, Robert Damon Spitzer and Gregg R. Lien,
Tahoe City, CA, for plaintiffs.
Richard M. Frank, California Dept. of Justice, Sacra-
mento, CA, for State of Cal.
Deputy Atty. Gen., Environmental Div., Carson City,
NV, for State of Nev.
Gary A. Owen, Carson City, NV, for TRPA.
eerie
Pai e ke Pe a ee Tae eT
Oe ae
3la
ORDER
EDWARD C. REED, Jr., District Judge.
This consolidated case! (now before this Court on a
Motion to Dismiss) arises from two cases filed on June 24,
1984 by the Tahoe Sierra Preservation Council to..”)
and the several hundred individually-named plaintiffs
who contended that Tahoe Regional Planning Agency’s
(TRPA) 1984 Regional Plan, and its predecessor interim
Ordinance 81-52, had denied them all “economically
viable use” of their properties - primarily vacant but
' This case and a case originating in the District Court of
Nevada shared almost identical facts and claims and were consoli-
dated in the interest of justice pursuant to a motion by all parties
(document #123) and an Order by this Court (document #132).
* It is helpful to consider this case in light of four distinct time
periods: Period I - June 25, 1981 through August 28, 1983 when
TRPA Ordinance 81-5 prohibiting development on the properties
was in effect. A limited exception was made to this prohibition
available only to the Nevada property owners of Class 1, 2, and 3
lots (not available to any of the California Plaintiffs). Case-by-case
consideration and exceptions were potentially available to these
plaintiffs during this time. Period II - August 28, 1983 through April
26, 1984. During this period a complete moratorium (Resolution
81-23) was instituted and no property could be developed and the
case by case review previously available to the Nevada Property
owners had expired. Period III - April 26, 1984 to June 25, 1987. The
1984 plan was approved at this time; however, the federal district
court for the Eastern District of California enjoined the TRPA from
approving any projects under the plan pursuant to a suit brought by
the State of California against TRPA alleging that the plan violated
the 1980 Compact. In effect, the District Court prevented the Plan
from being implemented. Period IV - June 25, 1987 TRPA adopted a
new regional plan (the Plan includes rights to appeal land classifica-
tions, transfer rights, and the right to seek amendment to the plan)
still in effect.
32a
lawfully-zoned single-family homesites. The TSPC plain-
tiffs planned to build permanent or vacation single-fam-
ily homes on these lots located in the Tahoe Basin.
Plaintiffs owning property on the Nevada side of the
Lake Tahoe Basin filed their action in this Court. Those
owning property on the California side, filed their action
in the United States District Court for the Eastern District
of California.s This Order addresses only the Motion to
Dismiss the First Amended Complaint filed by the Cali-
fornia-side plaintiffs following TSPC II (document #
135a); and only the facts relevant to the California half of
this dispute will be reviewed. (The order addressing the
Nevada-side plaintiffs is a separate document to be filed
contemporaneously with this Order).
HISTORY
The original Complaints filed on June 214, 1984 con-
tained nearly identical allegations and legal claims. In
both cases, the plaintiffs sought the following relief from
all defendants: 1) Just Compensation for the taking of
their property; 2) declaratory and injunctive relief based
upon the due process, equal protection, and takings
clauses of the United States Constitution; and 4) damages
under 42 U.S.C. 1983 for deprivation of their constitu-
tionally-protected civil rights. The district courts each
granted motions to dismiss/summary judgment in favor
3 The Nevada-side plaintiffs and the California-side plain-
tiffs both consist of two groups: those who own land in area
classified as Stream Environment Zones (the SEZ plaintiffs) and
those who own land in Class 1, 2, and 3 areas (the “Class 1, 2,
and 3 plaintiffs”).
Se Sgt a Ve, cea tone ee
xe
=
¥
33a
of the defendants.4 The defendants appealed the deci-
sions to the Ninth Circuit.5
Between the time of the District Court decisions and
oral argument before the Ninth Circuit, the Supreme
Court announced its decision in First English Evangelical
Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107
S.Ct. 2378, 96 L.Ed.2d 250 (1987). In First English, the
Supreme Court held that “temporary takings which deny
a landowner all the use of his property are not different
in kind from permanent takings, for which the Constitu-
tion clearly requires compensation.” First English, 482
U.S. at 318, 107 S.Ct. at 2388.° The rulings by the Court of
Appeals were, in part, guided by this decision.
The Ninth Circuit decided the case appealed from the
Eastern District of California on June 10, 1991 (TSPC II)”
4 The named defendants were TRPA, the States of Califor-
nia and Nevada, and the individual members of the TRPA Gov-
erning Board. The individual members of TRPA’s 1984
Governing Board have subsequently been voluntarily dismissed
by plaintiffs.
> On appeal the plaintiffs did not contest the dismissal of
the monetary damage claims as to the State of California and
Nevada, which had been dismissed based on Eleventh Amend-
ment immunity grounds.
6 The Ninth Circuit also found that continuing to distin-
guish those agencies with the power of condemnation (which
can appropriately be held liable in damages for inverse condem-
nation) from those without such power (immune from liability
for inverse condemnation) would “unavoidably conflict with
the reasoning of First English.” TSPC I at 1341.
7 “TSPC II” hereinafter refers to the California-side deci-
sion of the Ninth Circuit Tahoe Sierra Preserv. v. Tahoe Reg. Plan-
ning Agency, 938 F.2d 153 (9th Cir.1991).
34a
and the case appealed from the District Court of Nevada
on August 27, 1990 (TSPC I)8. In TSPC II the Circuit Court
held that (1) TRPA was not immune from suit; (2) Claims
for damages were not mooted by adoption of new
regional plan; and (3) claims for temporary taking were
ripe.
Specifically, the Court in TSPC II dismissed all claims
for declaratory and injunctive relief as being moot in
view of TRPA’s subsequent adoption of its 1987 Regional
Plan (distinguishing declaratory and injunctive relief as
providing no benefit to the plaintiffs as compared to
compensatory damages, still of value, for a temporary
taking). The Court allowed the plaintiffs to seek damages
for deprivation of the plaintiffs’ right to enjoy certain
public improvements for which they had previously paid
assessments.? Most important to the matter at hand, by
finding that TRPA was not immune from liability and that
a right to compensation for “temporary taking” exists, the
Court also reinstated the California plaintiffs’ claims for
just compensation as a result of the alleged regulatory
takings. Included in the reinstated claims were those
8 “TSPC I” hereinafter refers to the Nevada-side decision
by the Ninth Circuit. Tahoe Sierra Preserv. v. Tahoe Reg. Planning
Agency, 911 F.2d 1331 (9th Cir.1990).
9 In TSPC I the Ninth Circuit limited this cause of action to
assessments actually paid to TRPA. Because no assessments
were paid to TRPA in this case, no claims have been raised
pursuant to the ruling on this point. TSPC IJ found that property
owners are entitled to pursue a refund from the agency that
collected the assessments for improvements during a temporary
taking. While TRPA did not collect assessments in this case,
assessments may have been collected by a local improvement
district.
eS thnk KA NR a i Sie Sas Sg gS
» 4 Ss
35a
claims arising from Period III. Although the Court in
TSPC I affirmed the dismissal of these claims to the
extent they were not ripe as to the Nevada Plaintiffs, in
this case the Court of Appeals held the claims were ripe
(stating that Plaintiffs need not seek an amendment to the
plan in order to make their claims against the Plan ripe).
Partnered with this finding was the Circuit Court’s rein-
statement of the plaintiffs’ Civil Rights Act claims to the
extent they were based upon denial of Just Compensation
relating to the alleged regulatory takings.
Pursuant to the rulings by the Ninth Circuit in TSPC
II, the only claims that may be appropriately included in
the Plaintiffs’ First Amended Complaint are limited to
Just Compensation for the regulatory taking of property
and damages for deprivation of constitutionally-
protected civil rights pursuant to the Federal Civil Rights
Act.
After receiving permission from this Court, the Cali-
fornia-side plaintiffs filed their First Amended Complaint
on March 27, 1992 (the Nevada-side plaintiffs filed their
First Amended Complaint On October 28, 1991). The First
Amended Complaint states three claims for relief. The
first claim is applicable to the SEZ plaintiffs alleging a
regulatory taking of the plaintiffs’ properties resulting
from the prohibitions contained in TRPA’s 1984 Plan and
predecessor “interim moratoria,”!° and continued in force
and effect by TRPA’s 1987 Plan. In the second claim for
10 Plaintiffs use “interim moratoria” to include Period |
(June 25, 1981 through August 28, 1983 —- Ordinance 81-5) and
Period II (August 28, 1983 through April 26, 1984 - Resolution
83-21).
36a
relief, the Class 1, 2 and 3 plaintiffs seek the identical
relief. In the third claim for relief, all plaintiffs seek
additional damages for deprivation of their Constitu-
tionally-protected civil rights pursuant to the Federal
Civil Rights Act. The gravamen of the Complaint is that
the TRPA’s regulation, at face value and without refer-
ence to the [sic] any of the regulations application to any
particular parcel, effects an unconstitutional taking of
property. This is to be contrasted with an “as applied
takings claim, in which it is alleged that the particular
impact of the regulation upon a given parcel raises an
inverse condemnation claim. Facial challenges are appro-
priate for disposition by pre-trial motion. See e.g., Key-
stone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470,
107 S.Ct. 1232, 94 L.Ed.2d 472 (1987).
It is apparent from the First Amended Complaint that
the plaintiffs have taken a broad view of the Court’s
decisions in TSPC I and TSPC II. The plaintiffs have
coupled their understanding of the appellate decisions
with a liberal reading of First English, supra and Lucas v.
South Carolina Coastal Council, ____ U.S. ___, 112 S.Ct. 2886,
120 L.Ed.2d 798 (1992) to expand their takings claims in
the Amended Complaint. Rather than realizing that lim-
ited claims, further limited by certain facts, were found to
be potentially viable by the Court of Appeals, the plain-
tiffs have made new allegations. and ignored the limita-
tions prescribed.
In response to the First Amended Complaints, both
the TRPA and the State of California filed Motions to
Dismiss (documents # 104-141 and # 145-146). The
motion on behalf of California incorporated all of the
Riu tSIRIR HM: eS x
37a
TRPA’s arguments and TRPA joined the State of Califor-
nia in its Motion to Dismiss. Plaintiffs opposed the
Motions and defendants replied. The matter is now ripe
for the Court’s decision.
A court may grant a motion to dismiss for failure to
state a claim on which relief can be granted only if “it
appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him
to relief.” Adult Video Assoc. v. Barr 960 F.2d 781, 784 (9th
cir. 1992). A court may only look to the facts alleged in
the complaint when deciding whether to grant a 12(b)(6)
motion. Id. All material facts alleged in the complaint
must be taken as true and construed in the light most
favorable to the nonmoving party. Amfac Mortgage Corp. v.
Arizona Mall of Tempe 583 F.2d 426, 430 (9th cir. 1978).
However, it is not proper for the Court to assume that
“the pleader can prove facts that he has not alleged or
that the defendants have violated the. . . . laws in ways
that have not been alleged.” Associated General Contractors
v. California State Council, 459 U.S. 519, 526, 103 S.Ct. 897,
902, 74 L.Ed.2d 723 (1983)
Keeping in mind the deference which this Court is
bound to give to the plaintiffs’ allegations, each claim
will be considered in the context of the relevant time
period of the takings claims.
Period I (June 25, 1981 — August 28, 1983 - Ordinance
81-5)
The allegations of a regulatory taking arising from
the period of June 25, 1981 through August 28, 1983
(Ordinance 81-5 period) will be discussed first. The
defendants have raised a legitimate statute of limitations
38a
defense. A 60-day statute of limitation in imposed by the
Compact for any legal action arising out of any ordinance
of the agency. Tahoe Regional Planning Compact (Public
Law 96-551, 94 Stat. 3233; Cal.Gov.Code §§ 66800 & 66801;
N.R.S. § 277.190 & § 277.200 Art. VI(j)(4)).1! The TRPA
took final action to enact the ordinance alleged to consti-
tute a facial taking on June 25, 1981. The first complaint
was not filed in this case until 1984.
Plaintiffs’ efforts to save themselves from the require-
ment of filing prompt claims are not persuasive. Some
takings do occur gradually and incrementally thereby
extending the appropriate time period for filing an
inverse condemnation suit until the consequences of the
event are fully known. See United States v. Dickinson, 331
U.S. 745, 746-750, 67 S.Ct. 1382, 1383-1386, 91 L.Ed. 1789
(1947) (physical taking ultimately took place due to flood-
ing caused by Federal Government damming a river -
plaintiff permitted to file complaint when flooding dam-
age could be determined); Pierpont Inn, Inc. v. State, 70
Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969) (plaintiff
permitted to file complaint after property was appropri-
ated for a freeway but prior to completion of construction
project).
The case at hand arises from a claim against a regula-
tory taking. There has been no continuous physical inva-
sion of the plaintiffs’ land culminating in a taking. It was
11 The statute reads in pertinent part: “A legal action aris-
ing out of the adoption or amendment of the regional plan or of
any ordinance or regulation of the agency, or out of the granting
or denial of any permit, shall be commenced within 60 days
after final action by the agency.”
Tae ee ee
LRPE ENR rei ng ANG MANE: UM rt reg
39a
clear from the day Ordinance 81-5 was adopted that
development was prohibited as to the SEZ plaintiffs. A
facial takings claim based upon Ordinance 81-5 became
actionable upon the date that TRPA took final action to
enact the ordinance. There is no reason for the plaintiffs’
delay in alleging a regulatory taking as a result of this
Ordinance. Moreover, the defendants have not waived
their right to raise this defense. There has been no
adverse ruling by any of the Courts regarding the limita-
tion of action issue as it pertains to Ordinance 81-5. In
fact, during the litigation of this case, the Courts have
consistently shown an overt unwillingness to reach deci-
sions regarding the statute of limitations issues that had
not been raised while alerting the parties and this Court
that statute of limitations issues may be relevant. As there
were no adverse ruling below, there was no basis for
cross appeal and accordingly no waiver of the defense
has occurred. “Even if an appellee does not file a cross
appeal . . . he may defend the judgment in his favor with
any argument that is supported by the record, regardless
of whether it was ignored by the Court. (9 Moore’s Fed-
eral Practice (2d ed. 1992) ¥ 204.11[3] at 4-47). TSPC’s
regulatory takings claims arising from Period I (Ordi-
nance 81-5) are barred by the 60-day limitation of actions
imposed by the Compact and are dismissed.
Period II (August 28, 1983-April 26, 1984 - Resolution
83-21)
As to the second relevant period, Resolution 83-21
was in effect from August 28, 1983 through April 26, 1984
(the eight-month moratorium). The 60-day statute of lim-
itation applies to this period as well. A temporary resolu-
tion falls within the scope of the statute of limitations
40a
provided in the Compact. The Compact expressly states
that “any regulation” of the Agency is subject to a 60-day
statute of limitations.!? There is no logical argument as to
why Board Resolution 83-21 would not fall within the
scope of this statute. However, the Compact further
expresses that any legal actions shall take place 60 days
after “final action” by the agency. Resolution 83-21 was
temporary in nature — admittedly an interim measure.}%
The notation that a “temporary resolution” amounts to
“final action” deserves discussion.
There is little authority as to what constitutes “final
action” on the part of TRPA. Previous discussions have
centered around permit-specific disputes. See Cal. Tahoe
Regional Planning v. Sahara Tahoe Corp., 504 F.Supp. 751
(D.Nev.1980) (Court held that when TRPA treated a sec-
ond application for permit for parking garage as request
to reconsider Agency’s previous denial of the request and
then denied the request for a rehearing, the Agency took
a “final action”); Sederquist v. Tahoe Regional Planning
Agency, 652 F.Supp.*341 (D.Nev.1987). (Court held that
TRPA’s conditional approval of construction, rather than
12 See note 11 above.
13 The TRPA governing Board temporarily suspended issu-
ance of permits for projects because a serious legal question
arose concerning TRPA’s ability to continue project review and
approval beyond August 26, 1983 without having an amended
plan in effect. Article V(c) of the Compact required the amended
plan to be adopted within one year after the environmental
thresholds were established. The environmental thresholds had
been established on August 26, 1982.
ae . owe t EN ROE
viscid ee AAS ate one loads sv Ack 3
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4la
issuance of final permit, was “final action” within mean-
ing of Compact providing for permit expiration three
years after date of final action.)
Defendants assert that final action occurs at the time
of adoption. Determination of when final action occurred
as to the moratorium is crucial because if TRPA’s con-
struction is applied, then the plaintiffs are time-barred
from any claim of a facial taking during this period.
However, if it can be argued that a temporary resolution
implementing a moratorium, does not constitute a final
action, then the plaintiffs may be able to save this claim.
Interpretation given a statute by the agency charged
with its administration is entitled to deference from the
courts, Thomas v. Peterson, 753 F.2d 754, 762 (9th Cir.1985).
It has already been established that the term “final
action” is ambiguous. See Sederquist, 652 F.Supp. 341, 345).
In the case at hand it could be interpreted to mean the
Board’s adoption of Resolution 83-21 or it could be inter-
preted to mean the final adoption of the amended plan
following the Board’s interim measure. If the court deter-
mines that legislation is ambiguous, the question is
whether the agency’s interpretation is a reasonable one,
consistent with the statute’s overall purpose. Chevron,
U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.
837, 842-843, 104 S.Ct. 2778, 2781-2782, 81 L.Ed.2d 694
(1984). If TRPA’s interpretation is reasonable, then its
interpretation controls. These legal principles are incor-
- porated into the Compact. 1980 Compact, Article VI(j)(5).
Despite its temporary nature (8 months) the policy
and effect of the Resolution was clear — no development
permitted. The resolution was neither ambiguous nor its
42a
application inconsistent. The day the Board adopted the
Resolution it took final action as to what development
could occur prior to the adoption of the 1987 Plan. Fur-
ther, finding the adoption of a resolution as final action is
consistent with Sederquist, supra where the conditional
approval, although an interim measure, was found to
constitute final action. Finally, the TRPA’s interpretation
of the adoption as “final action” is in accord with the
implied purpose of Article VI(j) of the Compact to place a
reasonable time-bar on actions. TRPA’s interpretation of
“final action” as to the adoption of Resolution 83-21 is
reasonable. Consequently, TSPC’s claims based upon
Period II Resolution 83-21 are time-barred and dismissed.
Period III (April 26, 1984-June 25, 1987 - 1984 Plan and
Court Injunction)
The third relevant time period when the (1984 Plan
and the Court Ordered Injunction were in effect). The
Court of Appeals held that claims arising from this
period are ripe for review. However, the orders of the
federal district court for the Eastern District of California
enjoining TRPA from implementing the plan prevent
TSPC from having a legitimate cause of action with rela-
tion to this period. This Court need not address the
plaintiffs new assertion — that seeking an amendment to
the plan would have been “futile” and therefore the
ripeness defense is without merit — due to the injunction
by the federal court.!4
14 The State of California filed suit against TRPA on April
26, 1984 alleging that the 1984 Plan violated the Compact. Pur-
suant to this suit, the federal district court for the Eastern Dis-
trict of California ordered a preliminary injunction, preventing
43a
The Court of Appeals specifically retained this issue
for this Court. “We leave it to the district court to deter-
mine whether the intervening injunction prevented the
1984 Plan from causing any harm to the plaintiffs.” TSCP
II at 157. TSPC’s taking challenge to the 1984 Regional
Plan must fail because that plan was enjoined and never
implemented, hence the requisite causation between the
1984 Plan and TSPC’s purported injury is lacking as a
matter of law. The injunction ordered by federal court
prevented the 1984 Plan from ever taking effect. TRPA
was enjoined from granting any development or building
permit. Because the plan was never put into effect it
could not have caused a taking. The claim fails for lack of
causation. See Carpenter v. Tahoe Regional Planning Agency,
804 F.Supp. 1316 (D.Nev. 1992). TSPC’s claims for relief
arising from Period III are dismissed.
Period IV (June 25, 1987-present — 1987 Plan)
The 1987 Plan encompasses the last relevant time
period to be addressed. Claims arising under this plan
are also dismissed. The conclusory allegation that the
1987 Plan is merely a continuation of the 1984 Plan and
other regulations that allegedly amount to a taking is not
persuasive to this Court even in the deferential light the
Court must use in evaluating the plaintiffs claims. This
action was originally filed in 1984 long before the 1987
Plan was in effect.
Raising allegations against TRPA on the basis of the
1987 Plan runs afoul of the statute of limitations. “An
TRPA from authorizing any development. The injunction was
extended through July 5, 1987.
44a
amendment of a pleading relates back to the date of the
original pleading when . . . (2) the claim or defense
asserted in the amended pleading arose out of the con-
duct, transaction or occurrence set forth or attempted to
be set forth in the original pleading .. . ” Fed.R.Civ.P.
Rule 15(c)(2). When a plaintiff attempts to allege an
entirely different transaction by amendment, Rule 15(c)
will not authorize relation back 6A. Wright, Miller &
Kane, Federal Practice and Procedure § 1497 (2d ed. 1990).
The TRPA’s regulatory scheme embodied by the 1987
Plan is “markedly different from the 1984 Plan it
replaced.” TSPC I at 1334. As a result, the enlarged law-
suit now brought by TSPC rests on a different factual
basis than those claims which survived from the original
complaints. Amendments to complaints alleging claims
arising from different contracts, different patents and
separate violations do not “relate” back to the original
complaint. Amendments that merely correct technical
deficiencies or expand or modify the facts alleged in the
earlier pleading meet.the Rule 15(c) test and will relate
back.
Because the rationale of the relation back rule is to
ameliorate the effect of the statute of limitations!> rather
than to promote the joinder of claims and parties, the
standard for determining whether amendments qualify
under Rule 15(c) is not simply an identity of transaction
test; although not expressly mentioned in the rule, the
courts also inquire into whether the opposing party has
'S The Court notes that the time period for filing such an
action is now barred by the 60 day statute of limitation for
actions against the 1987 Plan.
45a
been put on notice regarding the claim raised by the
amended pleading. Id. In this case the allegations of
taking pursuant to the 1987 Plan do not rest on the same
general conduct, transaction or occurrence as the earlier
claims. Nor does the fact that plaintiffs were pursuing
taking claims in 1984 put the plaintiffs on notice that six
years later (and approximately four years after the adop-
tion of the plan at issue) an entirely different plan would
be attacked as constituting a facial taking.
While Rule 15(a) does place an additional burden on
the defendants in this case to have filed a separate com-
plaint against the TRPA with regard to its 1987 plan, the
alternative is to place an additional burden on the plain-
tiff — the burden of defending a new claim after 6 years of
litigation centered around distinctly different claims and
facts. The plaintiffs’ arguments of inconvenience are well
taken; however, they do not weigh heavier than the ratio-
nal behind Rule 15. Nor does justice require that this
Court give leave to the amendment with regard to the
new claims arising from the 1987 Plan. The plaintiffs’
concern that the defendants would have “squealed like
stuck pigs” had they (the plaintiffs) sought to file
amended complaints while the matter was on appeal
presents a colorful image but an unconvincing argument.
Requiring the plaintiff to file a separate complaint against
the TRPA for the 1987 does not amount to piecemeal
litigation. The 1987 Plan is completely different. It is not
merely an amended 1984 Plan without substantive
changes (compare with Tollis v. San Bernardino County, 827
F.2d 1329 (9th Cir. 1987)) nor is a continuing process of
physical intrusion (compare with United States v. Dickin-
son, supra) nor does the 1987 Plan merely add a variance
46a
provision to the original statute (compare with Lucas v.
South Carolina Coastal Council, supra).
The Ninth Circuit by mentioning the 1987 plan in its
mootness analysis of certain claims did not open the door
for claims arising from the Plan to be included in the
Amended Complaints. If anything, the Court’s affirma-
tion of the dismissal of claims for declaratory and injunc-
tive relief from the 1984 Plan because they were mooted
by the 1987 plan, demonstrates the Court’s recognition
that an entirely new statutory scheme was in place. A
claim based upon an entirely different regulatory plan
cannot be added to an existing complaint. The 1987 Plan
was developed from discussions lasting over two years in
a “consensus building workshop” initiated by TRPA and
designed to include the broadest possible range of private
and governmental interests and viewpoints. Moreover,
the 1987 plan could not be considered a continuation of
the 1984 plan because the 1984 plan never went into effect
as a result of the District Court of California’s order
enjoining the TRPA- from implementing the plan.
While the Court dismisses the claims arising from the
1987 Plan on the basis of Rule 15 and the time-bar, it is
also noted that claims in respect to the 1987 Plan would
not be ripe until the plaintiffs avail themselves of the
mechanisms in the 1987 Plan (e.g. challenging the IPES
Scores and exploration of development transfer). Plain-
tiffs must avail themselves of the options available as a
prerequisite to any claim against TRPA. Although the
Court of Appeals in TSPC II did find that it is not neces-
sary to seek amendment to a plan in order to make a
claim against such plan ripe, it did not hold that plaintiffs
can merely ignore all mechanisms available. TSPC’s
47a
claims based upon the 1987 Plan are dismissed because
they are not properly joined, do not relate back to the
1984 Plan and are now time-barred by the 60-day statute
of limitations and are not ripe even if they had been
validly asserted.
CONCLUSION
The Court of Appeals in TSPC I and TSPC II found
that a temporary takings claim can exist and should
compensated even after the period of the taking has
passed. The Circuit Court relied on First English for this
finding and now Lucas adds support to such a claim.
However, the Circuit Court did not render any decisions
as to potential statute of limitations defenses, the effect of
the court injunction during the 1984 Plan, or the ripeness
or appropriateness of any [sic] the claims arising from the
1987 Plan. Plaintiffs attempted to simplify this very com-
plex matter by focusing their arguments on liberal read-
ings of the two new Supreme Court cases and a broad
reading of the Court of Appeals’ limited rulings. Nev-
ertheless, plaintiffs’ claims cannot survive a Motion to
Dismiss.
As to plaintiffs’ First Claim for Relief (SEZ plaintiffs),
the claim arising from Period I is time-barred and dis-
missed. The claim arising from Period II is time-barred
and dismissed. The claim arising from Period III lacks the
requisite causation and is dismissed. The claim arising
from Period IV was made in violation of Fed.R.Civ.P. Rule
15, is time-barred, is not ripe, and is dismissed.
As to plaintiffs’ Second Claim for Relief (Class 1, 2,
and 3 plaintiffs), the claim arising from Period I is time-
48a
barred and dismissed. The claim arising from Period II is
time-barred and dismissed. The claim arising from Period
III lacks the requisite causation and is dismissed. The
claim arising from Period IV was made in violation of
Fed.R.Civ.P. Rule 15, is time-barred, is not ripe and is
dismissed.
As to plaintiffs’ Third Claim for Relief (SEZ and Class
1, 2, and 3 plaintiffs), the claim was limited to the extent
it was based on the claims of denial of Just Compensa-
tion. No basis for the claim exists in light of the dismissal
of both claims One and Two as to Periods I, II, III and IV.
Claim Three is dismissed.
IT IS, THEREFORE, HEREBY ORDERED that defen-
dants’ Motion to Dismiss Plaintiffs’ First Amendment
Complaint (document #135a) is GRANTED. The Clerk
shall enter judgement accordingly.
49a
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
"THE TAHOE SIERRA )
PRESERVATION COUNCIL, _ )
: INC., et al., ) No. 93-15113
: Plaintiff-Appellant, ) D.C. No.
: CV-84-00257-ECR
| THE TAHOE REGIONAL _ ?
| PLANNING AGENCY, et al., :
Defendant-Appellee. )
d )
: THE TAHOE SIERRA )
é PRESERVATION COUNCIL, ) No. 93-15114
: INC., et al., ) D.C. No.
; Plaintiff-Appellant, CV-84-00257-ECR
¥
| THE TAHOE REGIONAL ) (Filed Nov. 2, 1994)
PLANNING AGENCY, et al.,
: Defendant-Appellee. )
)
| Before: NOONAN, and T.G. NELSON, Circuit Judges,
EZRA," District Judge
; The panel as constituted in the above case has voted
to deny the petition for rehearing. Judges Noonan and
| _ Nelson have voted to reject the suggestion for rehearing
4 en banc, and Judge Ezra so recommends.
*The Honorable David A. Ezra, United States District ata
for the District of Hawaii, sitting by designation.
50a
The full court has been advised of the suggestion for
en banc rehearing, and no judge of the court has
requested a vote on the suggestion for rehearing en banc.
Fed. R. App. P. 35(b).
The petition for rehearing is denied, and the sugges-
tion for a rehearing en banc is rejected.
Te oe eS
iy Ames MID cose MAS ated ee
5la
JUDGMENT
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO. 93-15113
CT/AG#: CV-90-00098-ECR
CT/AG#: CV-84-00257-ECR
THE TAHOE SIERRA PRESERVATION COUNCIL, INC.
et al,.
4
Plaintiff-Appellant
v.
THE TAHOE REGIONAL PLANNING AGENCY, et al.
Defendant-Appellee
NO. 93-15114
CT/AG#: CV-92-00098-ECR
CT/AG#: CV-84-00257-ECR
THE TAHOE SIERRA PRESERVATION COUNCIL, INC.,
et al,.
Plaintiff-Appellant
V.
THE TAHOE REGIONAL PLANNING AGENCY, et al..
Defendant-Appellee
(Filed Nov. 15, 1994)
APPEAL FROM the United States District Court for
the District of Nevada (Reno).
THIS CAUSE came on to be heard on the Transcript
of the Record from the United States District Court for
the District of Nevada (Reno) and was duly submitted.
52a
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court, that the judgment of
the said District Court in this cause be, and hereby is
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.
Filed and entered August 10, 1994.
53a
ADDITIONAL PARTIES TO THE PROCEEDINGS
(SUPREME COURT RULE 14.1(b))
BRUCE A. AMES and JUDITH M. AMES; LAURA L.
ANDERSON and JAMES E. ANDERSON; ALFRED J.
ANTONINI; CAROLYN J. APPLEBY; EDWARD ARRI
and BARBARA ARRI; GEORGE P. ASCHE and
PRISCILLA J. ASCHE; LEONARD W. ASCHER and
ADELINE H. ASCHER; ALPINE INVESTMENT: NICK
BADAMI; WES BALLARD; M.A. BEHR and ESTHER
M. BEHR, CLARENCE C. BENEDICT; MAX V.
BENTLEY and MINNIE R. BENTLEY: LEROY G.
BLACK; RICHARD A. BLASCO and AIDA M.
BLASCO; ARLETTE I. BROWN; ARTHUR C.
BYSTROM; ALLAN F. CASE and TERUKO CASE;
DON N. CHOATE and LORRAINE E. CHOATE;
EDWARD W. CISLO, JR. and LA VERNE C. CISLO;
JAMES D. CLEMENT; ROBERT D. COLCLAZIER;
JAMES R. COMPTON; CARL D. COOK; DOROTHY
MAE COOK; HAROLD F. CORNELIUS; JOAN COSTA;
DONALD COTTEN; OLGA R. CROSETTI; ALAN W.
DAGG; GWENDOLYN IONE DAY; EDDY K. DAYNE
and ANNE M. DAYNE; RICHARD DEFENBAUGH and
TERESA DEFENBAUGH; JOHN J. DESTEFANO: JESS
R. DETEVIS and DIANE DETEVIS; ROBERT E. DIXON
and JUDITH E. DIXON; STEVEN N. DOLIN and
MARY T. DOLIN; MARILYN T. DURBIN; KENNETH
W. EBERLE and BETTY L. EBERLE; WILLIAM A.
EDWARDS, JR. and FRANCES M. EDWARDS; ANDRE
YANN EGASSE; RONALD F. ELIOFF and DENNE M.
ELIOFF; J. ROY ELMS and ELIZABETH D. ELMS;
NEALE M. ENSIGN and CHRISTINA H. ENSIGN:
SONIA D. ERICKSON PETER L. FAVRO; BEN H.
FERGUSON; DEREK FERRIERA and DELORES
FERRIERA; MOREY B. FLEMING and DOROTHY R.
FLEMING; WILLIAM J. FOLEY and SHIRLEY J.
FOLEY; DOUGLAS H. FORD; FRANK A. FOTI and
ROSE A. FOTI; JUDITH ANN FRIEDMAN; W.C.
FROELICH, INC.; CLIFFORD A. FROST and
54a
LORRAINE L. FROST; MOSES D. GARAY and ROSE
GARAY; FRANK M. GARCIA; LAURA E. GARCIA;
F.W. GASSER and ROSE GASSER; LOUIS GEORGE
and ELIZABETH GEORGE; ANNA F. GERACI and
SALVATORE GERACI; ERNEST O. GERMANN and
VIRGINE M. GERMANN; CHRISTOPHER P. GERSHEL
and SHARON A. GERSHEL; WILLIAM L. GILL; KURT
A. GRAF and NELLIE O. GRAF; ROBERT U. GRANT
CIVIL ENGINEERING CO., INC.; ROGER DALE
GRESHAM; RICHARD H. GUZMAN and CLAUDIA D.
GUZMAN; G.E.M. DEVELOPMENT, INCORPORATED;
DAN HAMMON and SHERRIE HAMMON; CHARLES
S. HANSON, JR. and VIRGINIA R. HANSON;
WILSON L. HARRELL; DAN M. HAUSERMAN;
HELEN L. HEDRICK; WAYNE F. HESS and
LORRAINE E. HESS; DOUGLAS J. HINDS and
MARIAN O. HINDS; J.C. HINTON and LA VAUN E.
HINTON; DONALD I. HITT; LOREN HOLMWOOD;
DONNA IVY; CARLTON S. JAMES; JOHN JAVORSKY
and HELEN JAVORSKY; K.D. JEFFERSON and
WINNIFRED A. JEFFERSON; EDWARD N. JELLINS
and JANET L. JELLINS; RUDOLPH JOHNSON and
PATRICIA JOHNSON; ARNE JORGENSEN; VINCENT
S. KEELE and TEDDYANNA P. KEELE; ROY KERTON
and LADONNA KERTON; MIKLOS J. KISIDAY and
VALIRIA E. KISIDAY; VIRGINIA J. KOTECKI; PETER
LANGE; OLAF O. LARSON; CHARLES W. LEW;
ROBERT E. LIVESAY and FRANCES M. LIVESAY;
HENRY G. LOUIE and LOUISE LOUIE; IAN D.
MACGREGOR; MELVIN J. MADDEN and RUTH L.
MADDEN; MARIO A. MANDOLI and ALICE M.
MANDOLI; ANTHONY JOHN MARAN; DAN H.
MARSHALL; LEONARD MAYRISCH, JR.; EDWARD J.
MCCARTHY; HALL B. MC ELREE and GEORGETTA
B. MC ELREE; FRANK J. MERRITT and SHARON M.
MERRITT; HOWARD A. MILLER and ANTOINETTA
R. MILLER; ANKICA MILOSAVLJEVIC; CHARLES S.
MITCHELL; CARL V. MODUGNO; ERNESTINE H.
55a
MOORE; ANDREA C. MONIZ; ARTHUR L.
MONTERO; HOWARD V. MORE; DEAN L. MORGAN
and DENA M. MORGAN; ANATOLE J.
MOSKOLENKO; EMIL A. NECHVATAL and BERNICE
M. NECHVATAL; JOHN L NEWBILL and ANITA L.
NEWBILL; CONSTANCE NOIA; STEPHEN L. NORRIS
and JACQUELINE NORRIS; PETER PANOS and
SOPHIA PANOS; PAUL PAULSON and MARILYN
PAULSON; EDDIE R. PEDERSEN and DORIS J.
PEDERSEN; MERLIN A. PORTER and FERN K.
PORTER; PAUL DAVID PORTER, LUCILLE PRATHER;
RICHARD LEE PRITCHETT and VIRGINIA RUTH
PRITCHETT; FRANK A. QUADROS and FRANCES M.
QUADROS; WILLIAM R. RAMSEY and LINDA R.
RAMSEY; RUDY REGALADO and JOSEPHINE M.
REGALADO; SARAH REYNOLDS and SARGENT
REYNOLDS; ROBERT W. RIEB; QUENTIN H. RINK;
GEORGE R. ROBINSON; ROCKY RIDGE PROPERTIES;
LARRY D. RUDY; EUGENE SAKAI and BETTY
SAKAI; JOHN G. SANCHEZ and MARY M.
SANCHEZ; E.S. SARRO and ELEANOR M. SARRO;
CHARLES OLIVER SASS; PATRICK N. SATALINO;
DONALD E. SAUNDERS and GWEN SAUNDERS
(DECEASED); FREDERICK SCHULZ; DAVID J.
SHERDEN and SHARON L. SHERDEN;; SEIJI SHIBA;
BRUCE E. SIMKINS; J. ROCKWELL SMITH and
PATRICIA SMITH; BERTRAM S. SOLOMON and
SYLVIA M. SOLOMON; MARK THOMAS SPRAGGINS;
EDWARD K. STEARNS; FREDERICK A. STREIB and
ROSEMARY STREIB; SUGARPINE INVESTMENTS,
INC.; A.J. SULME; DONALD P. SWAN; TAHOE
APLINE PROPERTIES LTD.; WILLIAM E. THACKREY
and SYLVIAN E. THACKREY; LORENE THOMAS;
LINDA A. THOMPSON and ALLAN J. THOMPSON;
ROBERT E. TOLBERT and IRENE TOLBERT; FRANK
W. TRABUCCO and MARY S. TRABUCCO; JAMES R.
TREMBATH; DONALD PAUL TURNER and DORIS A.
56a
TURNER; U-HAUL CO. OF SACRAMENTO;
NEALAND R. UNDERWOOD and DELLA
UNDERWOOD; RON UHARRIET; ROBERT URSO;
RICHARD G. VENTRESCO and DARLEEN P.
VENTRESCO; NORBERT A. WALZ, SR.; CAROLE A.
WARD; WEST BAY ENTERPRISES; LAMBERT P.
WILLIE; ROBERT H. WILLIAMS; WOODROW H.
WILSON and BARBARA C. WILSON; JOHN A.
WOLLMAN; ROBERT C. WORKS and PATRICIA W.
WORKS; GRACE YA-CHIN LIN PAN; PETER I.
YAMAMOTO and MIDORI M. YAMAMOTO;
ENRIQUE J. ZOLLNER (DECEASED) and PILAR
FERNANDEZ ZOLLNER; THEODORE CAROL
ZSUTTY and MARIE ROSE ZSUTTY; VIRGINIA R.
ZUCK; and JEFFREY G. ZYBURA and LANA R.
ZYBURA.
RICHARD A. ALLISON; ALPINE INVESTMENT CO.,
LTD.; AMCO, INC., JEFFREY B. ANDERSEN and
BETH C. ANDERSEN; PETER J. ANDERSEN and
JANET I. ANDERSEN; DONALD F. ARCHIBALD and
VICTORIA ARCHIBALD; JEAN L. ATHERTON; AIR
CONTINENTAL JET CHARTER, INC.; DAVID E.
BAKER and MAXINE A. BAKER; JOHN H. BAKER;
PIERINO C. BARENGO; JAMES E. BATEMAN and
CHERYL J. BATEMAN; VINCENT A. BAUER and
ALICE R. BAUER; JUNE F. BECKLER; DERRIL D.
BERGT and PATRICIA M. BERGT; H.I. BIRR, III;
LEROY G. BLACK and IDA B. BLACK; JEROME O.
BLOMBERG; CONSTANCE BOUCHER; JOHN
FRANKLIN BOYDSTON and JEAN ANNE
BOYDSTON; LOUIS G. BRENNAN and CYNTHIA B.
BRENNAN; ROBERT BRIDE; HARRIS J.
BUCHBINDER; SAM CAMHI and LILLIAN A.
CAMHI; MAUREEN B. CASSIDY; CAVE ROCK
ESTATES, A GENERAL PARTNERSHIP; WILLIAM M.
57a
CHARNEY and SUSAN W. CHARNEY: TERRY
BRADLEY CLARKE; GEORGE B. CLIFFORD;
WILLIAM G. COLLINS, JR. and BEVERLY R.
COLLINS; THOMAS F. COMBS; JAMES A. CONE and
BEVERLY J. CONE; JOSEPH J. COOKE; PATRICIA
DEAL; ROBERT DEMELLO; JAMES J. DORST and
BEVERLY ANN DORST; JOSEPHINE A. DUDEK and
MICHAEL N. DUDEK; WIACZESLAW DUSS and
VERNA DUSS; JAMES W. EHRENBURG and PHYLLIS
C. EHRENBURG; SARAH E. ERLACH; JAN if
ERTESZEK; DONALD L. EVERINGHAM; GAYLE
FISHER; MARIE G. GARLAND; HARRY F. GETZ and
BETTY J. GETZ; RUSSEL R. GOEBEL; FRED R.
GOLISH and BEVERLY A. GOLISH; THOMAS S.
GOTO and HIDEKO GOTO; LYNN R. GRADY: BERT
GRAFTON, JR., RICHARD F. GRAY and FAYE FE.
GRAY; GREAT CALIFORNIA GARY; RICHARD A.
GRISWOLD and MADELINE C. GRISWOLD; ROBERT
V. HALE and MERLA J. HALE; WILLIAM L. HANE:
JACK L. HARE and LAVINA L. HARE; KENNETH J.
HARRINGTON; THOMAS A. HASLETT and STELLA
M. HASLETT; WILLIAM J. HAVLEK and LEA M.
HAVLEK; STEVEN J. HAYDEN and ANN HAYDEN;
DENNIS L. HECKERSON; IRA W. HELGREN and
CLAYTON E. HELGREN; ROBERT L. HELMS; LARRY
D. HENRY; JAMES S. HETHERINGTON and AUDREY
O. HETHERINGTON; HAROLD ZANE HEWITT and
RUTH B. HEWITT; THOMAS HILL; MALCOLM C.
HODGE; WILLIE E. HORNE and LATRICIA J.
HORNE; HOSFORD CORPORATION; ESTATE OF
EDGARD M. HOWARD; HUTTON ASSOCIATES;
RALPH W. INCE; INCLINE LAKE CORPORATION;
ROBERT MARSHALL JELDERKS; DANIEL E.
JOHNSON and MARGARET R. JOHNSON; LLOYD O.
JOHNSON; RAYMOND O. JOHNSON and CYNTHIA
JOHNSON; LAWRENCE E. KATELHUT and VANESSA
ANNE KATELHUT; VINCENT S. KEELE and
58a
TEDDYANNA P. KEELE; GEORGE A. KELLNER;
WILLIAM J. KELLY; DONALD B. KEOWN; WILLIAM
J. KERRIGAN and JODY KERRIGAN; PEARL S.
KISHIMOTO; KEITH KLEIN; VALENTINE F. KLEIN
and VALERIE A. KLEIN; POLLY W. KLINE; BARRY L.
KRAUSS and JUDITH KRAUSS; TODD KRUEGER and
NANCY KRUEGER; ESTHER B. LANGHAM; LEWIS
A. LARSEN and FERNE J. LARSEN; WALTER W.
LATIMER and ULA E. LATIMER; JEFFREY C.
LAUGHLIN and VIBEKE A. LAUGHLIN; CHELTON
LEONARD and PETER C. LEONARD; DON
LEONARD; BERNICE LINDBERG; RONALD E.
LIPORI; JOSEPH A. LUNNY, JR. and JOAN M.
LUNNY; PAULETTE L. LUTJENS, ET AL.; ALLAN D.
LYNN; DUANE E. MACK; GORDON MACLEAN;
THERESA B. MALLEY; STANLEY L. MARTIN and
LOUISE A. MARTIN; J. MCBRIDE; PATRICK MARK
MAGAREE; SIMOS MICHAELIDES and VIRGINIA
MICHAELIDES; ROBERTA W. MOHLER; MERILYN
MORRISON; LEON J. MOSS and CAROL L. MOSS
(and DON E. MOSS and CHARLENE L. MOSS);
KATHY MULLIGAN; SUE M. MYERS; PATRICIA
NADING; JOHN ¥. NASH and MARY G. NASH;
HILMER C. NELSON and LOUISE K. NELSON;
MILTON NELSON and CECELIA NELSON; DAVID O.
NERGER and SHIRLEY R. NERGER; KENNETH R.
NORTON; MYRL A. NYGREN and MAE NYGREN;
WILLIAM O’BRIEN and DINAH O’BRIEN; DORIS G.
OLDENBURG; O.L. & L., LTD., A NEVADA
CORPORATION; RUSSEL B. PATRICK; WILLIAM
PAYNTER and LEE PAYNTER; ALLAN J. PERRONE;
SAM PERRY; WAYNE L. PETERSON and FRANCES E.
PETERSON; NEIL W. PLATH and VIRGINIA H.
PLATH; JOSEPH D. PRICE; RICHARD D. PROVOST
and ADELE K. PROVOST; EDWARD RAHE;
VAUGHAN S. REAMS; WILLIAM B. REINER and
ANN H. REINER; ERIC W. RETTIG; RONALD L.
59a
RODGERS and E.O. RODEFFER; DONALD W.
ROSENDAHL and CAROLE L. ROSENDAHL;
HORTENSE E. ROZMAN; THOMAS A. RUDY and
ARLENE J. RUDY; NORMAN RUIZ and JULIE P.
RUIZ; MICHAEL RUTBERG and HELEN RUTBERG; E.
KENT SALAS and DOROTHY M. SALAS; LARAY
SCHOUWEILER and E.F. SCHOUWEILER; DONALD F.
SEDMAK and MADELYN A. SEDMAK; VIVIAN
SEFTON; RONALD C. SEIPEL and LUCRETIA E.
SEIPEL; JACK SHELLY and CATHERINE SHELLY;
BRYAN SHIEMAN and JOY L. SHIEMAN; FRANK C.
SIMPSON; HAROLD F. SMILEY and BEULAH S.
SMILEY; COL. PHILIP E. SMITH and LEE L. SMITH;
ALBERT B. SOLARI; PAUL DONNER SPENCER and
EVE PAGE SPENCER; ROGER C. STEELE; WILLIAM
D. STEWART and DOROTHY J. STEWART; CHARLES
E. STREET; LEWIS THIGPEN; ESTATE OF RAYMOND
B. THOMPSON; RODNEY J. THORSEN and ROBERTA
J. THORSEN; DAVID V. THRELKEL; WILLIAM F.
TISDELL; ROBERT E. TOWNSEND; COURTNEY
TREMAINE and SHARON Y. TREMAINE: JAMES H.
TREVOR; RICHARD M. VALERIOTE and POLLY P.
VALERIOTE; LOUIS VARNESE and ANN MARIE
VARNESE; JOHN W. VIGLIONE and MARCIA C.
VIGLIONE; SAL VITALE and OLLIE A. VITALE
LUCILLE WAGNER; MARGRET L. WALLACE:
EDMOND E. WARD and DOLORES A. WARD: GWEN
WEINER and LUCILE WEINER; THAD WILEY: JEAN
WILTFONG; MIRIAN H. WINGFIELD; JOHN A.
WINN and ELLEN S. WINN; PETER W. WRIGHT and
JUNE D. WRIGHT; DONALD E. ZWALD and
SUZANNE ZWALD.
60a
PUBLIC LAW 96-551, 94 Stat. 3233 (DEC. 19, 1980)
An Act
To grant the consent of the Congress to the Tahoe
Regional Planning Compact, and to authorize the Secre-_
tary of Agriculture and others to cooperate with the
planning agency thereby created.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
That in order to encourage the wise use and conservation
of the waters of Lake Tahoe and of the resources of the
area around said lake, the consent of the Congress is
hereby given to the Tahoe Regional Planning Compact
heretofore adopted by the States of California and Nev-
ada, which compact reads as follows:
TAHOE REGIONAL PLANNING COMPACT
ARTICLE I. FINDINGS AND DECLARATIONS
* OFf PULEKY
(a) It is found and declared that:
(1) The waters cof Lake Tahoe and other resources
of the region are threatened with deterioration or degen-
eration, which endangers the natural beauty and eco-
nomic productivity of the region.
(2) The public and private interests and invest-
ments in the region are substantial.
(3) The region exhibits unique environmental
and ecological values which are irreplaceable.
———EEeEeE—E——
61a
(4) By virtue of the special conditions and cir-
cumstances of the region’s natural ecology, developmen-
tal pattern, population distribution and human needs, the
region is experiencing problems of resource use and defi-
ciencies of environmental control.
(5) Increasing urbanization is threatening the
ecological values of the region and threatening the public
opportunities for use of the public lands.
(6) Maintenance of the social and economic
health of the region depends on maintaining the signifi-
cant scenic, recreational, educational, scientific, natural
and public health values provided by the Lake Tahoe
Basin.
(7) There is a public interest in protecting, pre-
serving and enhancing these values for the residents of
the region and for visitors to the region.
(8) Responsibilities for providing recreational
and scientific opportunities, preserving scenic and natu-
ral areas, and safeguarding the public who live, work and
play in or visit the region are divided among local gov-
ernments, regional agencies, the States of California and
Nevada, and the federal government.
(9) In recognition of the public investment and
multistate and national significance of the recreational
values, the federal government has an interest in the
acquisition of recreational property and the management
of resources in the region to preserve environmental and
recreational values, and the federal government should
assist the states in fulfilling their responsibilities.
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62a
(10) In order to preserve the scenic beauty and
outc.oor recreational opportunities of the region, there is
a need to insure an equilibrium between the region’s
natural endowment and its manmade environment.
(b) In order to enhance the efficiency and govern-
mental effectiveness of the region, it is imperative that
there be established a Tahoe Regional Planning Agency
with the powers conferred by this compact including the
power to establish environmental threshold carrying
capacities and to adopt and enforce a regional plan and
implementing ordinances which will achieve and main-
tain such capacities while providing opportunities for
orderly growth and development consistent with such
capacities.
(c) The Tahoe Regional Planning Agency shall inter-
pret and administer its plans, ordinances, rules and regu-
lations in accordance with the provisions of this compact.
ARTICLE II. DEFINITIONS
As used in this compact, the following terms have the
following meanings:
(a) “Region,” includes Lake Tahoe, the adjacent parts
of Douglas and Washoe Counties and Carson City, which
for the purposes of this compact shall be deemed a
county, lying within the Tahoe Basin in the State of Nev-
ada, and the adjacent parts of the Counties of Placer and
El] Dorado lying within the Tahoe Basin in the State of
California, and that additional and adjacent part of the
County of Placer outside of the Tahoe Basin in the State of
California which lies southward and eastward of a line
63a
starting at the intersection of the basin crestline and the
north boundary of Section 1, thence west to the northwest
corner of Section 3, thence south to the intersection of the
basin crestline and the west boundary of Section 10; all
sections referring to Township 15 North, Range 16 East,
M.D.B. & M. The region defined and described herein
shall be as precisely delineated on official maps of the
agency.
(b) “Agency” means the Tahoe Regional Planning
Agency.
(c) “Governing body” means the governing board of
the Tahoe Regional Planning Agency.
(d) “Regional plan” means the long-term general
plan for the development of the region.
(e) “Planning commission” means the advisory plan-
ning commission appointed pursuant to subdivision (h)
of Article III.
(f) “Gaming” means to deal, operate, carry on, con-
duct, maintain or expose for play any banking or percent-
age game played with cards, dice or any mechanical
device or machine for money, property, checks, credit or
any representative of value, including, without limiting
the generality of the foregoing, faro, monte, roulette,
keno, bingo, fan-tan, twenty-one, blackjack, seven-and-
a-half, big injun, klondike, craps, stud poker, draw poker
or slot machine, but does not include social games played
solely for drinks, or cigars or cigarettes served individu-
ally, games played in private homes or residences for
prizes or games operated by charitable or educational
64a
organizations, to the extent excluded by applicable state
law.
(g) “Restricted gaming license” means a license to
operate not more than 15 slot machines on which a quar-
terly fee is charged pursuant to NRS 463.373 and no other
games.
(h) “Project” means an activity undertaken by any
person, including any public agency, if the activity may
substantially affect the land, water, air, space or any other
natural resources of the region.
(i) “Environmental threshold carrying capacity”
means 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. Such standards shall include
but not be limited to standards for air quality, water
quality, soil conservation, vegetation preservation and
noise.
(j) “Feasible” means capable of being accomplished
in a successful manner within a reasonable period of
time, taking into account economic, environmental, social
and technological factors.
(k) “Areas open to public use” means all of the areas
within a structure housing gaming under a nonrestricted
license except areas devoted to the private use of guests.
(1) “Areas devoted to private use of guests” means
hotel rooms and hallways to serve hotel room areas, and
any parking areas. A hallway serves hotel room areas if
more than 50 percent of the areas of each side of the
hallway are hotel rooms.
65a
(m) “Nonrestricted license” means a gaming license
which is not a restricted gaming license.
ARTICLE II. ORGANIZATION
(a) There is created the Tahoe Regional Planning
Agency as a separate legal entity.
The governing body of the agency shall be constitu-
ted as follows:
(1) California delegation:
(A) One member appointed by each of
the County Boards of Supervisors of the
Counties of El Dorado and Placer and one
member appointed by the City Council of
the City of South Lake Tahoe. Any such
member may be a member of the county
board of supervisors or city council, respec-
tively, and shall reside in the territorial
jurisdiction of the governmental body mak-
ing the appointment.
(B) Two members appointed by the
Governor of California, one member
appointed by the Speaker of the Assembly
of California and one member appointed by
the Senate Rules Committee of the State of
California. The members appointed pur-
suant to this subparagraph shall not be resi-
dents of the region and shall represent the
public at large within the State of Califor-
nia. A member appointed by the Speaker of
the Assembly or the Senate Rules Commit-
tee may, subject to confirmation by his or
her appointing power, designate an alter-
nate to attend meetings and vote in the
absence of the appointed member. The des-
ignation of a named alternate, which shall
66a
be in writing and contain evidence of con-
firmation by the appointing power, shall be
kept on file with the agency. An appointed
member may change his or her alternate
from time to time, with the confirmation of
the appointing power, but shall have only
one designated alternate at a time. An alter-
nate shall be subject to those qualifications
and requirements prescribed by this com-
pact that are applicable to the appointed
member.
(2) Nevada delegation:
(A) One member appointed by each of
the boards of county commissioners of
Douglas and Washoe Counties and one
member appointed by the Board of Super-
visors of Carson City. Any such member
may be a member of the board of county
commissioners or board of supervisors,
respectively, and shall reside in the terri-
torial jurisdiction of the governmental body
making the appointment.
(B) Two members appointed by the
Governor of Nevada, one member appoin-
ted by the Speaker of the Assembly and one
member appointed by the Majority Leader
of the Nevada Senate. All members appoin-
ted pursuant to this subparagraph shall not
be residents of the region and shall repre-
sent the public at large within the State ot
Nevada. A member appointed by the
Speaker of the Nevada Assembly or the
Majority Leader of the Nevada Senate may,
subject to confirmation by his or her
appointing power, designate an alternate to
attend meetings and vote in the absence of
the appointed member. The designation of a
named alternate, which shall be in writing
and contain evidence of confirmation by the
i enrnnetereneneeeial
67a
appointing power, shall be kept on file with
the agency. An appointed member may
change his or her alternate from time to
time, with the confirmation of the appoint-
ing power, but shall have only one desig-
nated alternate at a time. An alternate shall
be subject to those qualifications and
requirements prescribed by this compact
that are applicable to the appointed mem-
ber.
(3) If any appointing authority under para-
graph (1)(A), (1)(B), (2)(A) or (2)(B) fails to make
such an appointment within 60 days after the
effective date of the amendments to this com-
pact or the occurrence of a vacancy on the gov-
erning body, the governor of the state in which
the appointing authority is located shall make
the appointment. The term of any member so
appointed shall be 1 year.
(4) The position of any member of the gov-
erning body shall be deemed vacant if such a
member is absent from three consecutive meet-
ings of the governing body in any calendar year.
(5) Each member and employee of the
agency shall disclose his economic interests in
the region within 10 days after taking his seat on
the governing board or being employed by the
agency and shall thereafter disclose any further
economic interest which he acquires, as soon as
feasible after he acquires it. As used in this
paragraph, “economic interests” means:
(A) Any business entity operating in the
region in which the member or employee
has a direct or indirect investment worth
more than one thousand dollars ($1,000).
(B) Any real property located in the
region in which the member or employee
68a
has a direct or indirect interest worth more
than one thousand dollars ($1,000).
(C) Any source of income attributable
to activities in the region, other than loans
by or deposits with a commercial lending
institution in the regular course of business,
aggregating two hundred fifty dollars
($250) or more in value received by or
promised to the member within the preced-
ing 12 months; or
(D) Any business entity operating in the
region in which the member or employee is
a director, officer, partner, trustee, employee
or holds any position of management.
No member or employee of the agency shall
make, or attempt to influence, an agency deci-
sion in which he knows or has reason to know
he has an economic interest. Members and
employees of the agency must disqualify them-
selves from making or participating in the mak-
ing of any decision of the agency when it is
reasonably foreseeable that the decision will
have a material financial effect, distinguishable
from its effect on the public generally, on the
economic interests of the member or employee.
(b) The members of the agency shall serve without
compensation, but the expenses of each member shall be
met by the body which he represents in accordance with
the law of that body. All other expenses incurred by the
governing body in the course of exercising the powers
conferred upon it by this compact unless met in some
other manner specifically provided, shall be paid by the
agency out of its own funds.
(c) The members of the governing body serve at the
pleasure of the appointing authority in each case, but
69a
each appointment shall be reviewed no less often than
every 4 years. Members may be reappointed.
(d) The governing body of the agency shall meet at
least monthly. All meetings shall be opened to the public
to the extent required by the law of the State of California
or the State of Nevada, whichever imposes the greater
requirement, applicable to local governments at the time
such meeting is held. The governing body shall fix a date
for its regular monthly meeting in such terms as “the first
Monday of each month,” and shall not change such date
more often than once in any calendar year. Notice of the
date so fixed shall be given by publication at least once in
a newspaper or combination of newspapers whose circu-
lation is general throughout the region and in each
county a portion of whose territory lies within the region.
Notice of any special meeting, except an emergency meet-
ing, shall be given by so publishing the date and place
and posting an agenda at least 5 days prior to the meet-
ing.
(e) The position of a member of the governing body
shall be considered vacated upon his loss of any of the
qualifications required for his appointment and in such
event the appointing authority shall appoint a successor.
(f) The governing body shall elect from its own mem-
bers a chairman and vice chairman, whose terms of office
shall be 2 years, and who may be reelected. If a vacancy
occurs in either office, the governing body may fill such
vacancy for the unexpired term.
(g) Four of the members of the governing body from
each state constitute a quorum for the transaction of the
70a
business of the agency. The voting procedures shall be as
follows:
(1) For adopting, amending or repealing
environmental threshold carrying capacities, the
regional plan, and ordinances, rules and regula-
tions, and for granting variances from the ordi-
nances, rules and regulations, the vote of at least
four of the members of each state agreeing with
the vote of at least four members of the other
state shall be required to take action. If there is
no vote of at least four of the members from one
state agreeing with the vote of at least four of
the members of the other state on the actions
specified in this paragraph, an action of rejec-
tion shall be deemed to have been taken.
(2) For approving a project, the affirmative
vote of at least five members from the state in
which the project is located and the affirmative
vote of at least nine members of the governing
body are required. If at least five members of the
governing body fr
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