507 F.2d 517 (9th Cir. 1974), 73-3611, League to Save Lake Tahoe v. Tahoe Regional Planning Agency

Docket Nº:73-3611.
Citation:507 F.2d 517
Party Name:LEAGUE TO SAVE LAKE TAHOE et al., Plaintiffs-Appellants, v. TAHOE REGIONAL PLANNING AGENCY et al., Defendants-Appellees.
Case Date:November 22, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 517

507 F.2d 517 (9th Cir. 1974)

LEAGUE TO SAVE LAKE TAHOE et al., Plaintiffs-Appellants,

v.

TAHOE REGIONAL PLANNING AGENCY et al., Defendants-Appellees.

No. 73-3611.

United States Court of Appeals, Ninth Circuit

November 22, 1974

Certiorari Denied March 17, 1975, See 95

S.Ct. 1398.

Page 518

Coleman A. Blease of Karlton, Blease & Vanderlaan (argued), Sacramento, Cal., for plaintiffs-appellants.

Claire H. Greve (argued), of Johnson, Greve & Clifford, Sacramento, Cal., Forrest A. Plant (argued), Sacramento, Cal., for defendants-appellees.

Before KOELSCH and CHOY, Circuit Judges, and RENFREW, [*] District judge.

OPINION

RENFREW, District Judge:

In 1968 the states of California and Nevada entered into a compact to create a regional agency with extensive powers to regulate and control development within the Lake Tahoe Basin in order to protect the natural resources and ecological balance of the area. 1 In December of 1969 Congress gave its consent to the compact as provided for in Article I, 10, cl. 3 of the United States Constitution. 2

The Tahoe Regional Planning Compact ('Compact') created Tahoe Regional Planning Agency ('TRPA') and charged it with responsibility for developing within ninety days a regional interim plan and, within eighteen months, a regional plan which would reflect a wide variety of economic, environmental and social considerations. The Compact also directed the TRPA to adopt all ordinances, rules, regulations and policies necessary to effectuate the regional interim plan and the regional plan.

The League to Save Lake Tahoe, the Sierra Club and two individuals who reside

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in the Tahoe area ('appellants') brought this action for declaratory and injunctive relief alleging, basically, that defendant TRPA has failed to comply with the legal requirements of the Compact. They contend that TRPA has failed to adopt a regional plan as required by the Compact, has failed to adopt certain implementing ordinances mandated by the Compact, has adopted other ordinances which are defective, and has failed to prepare a detailed environmental analysis as required by the Compact. In particular, appellants charge that defendant TRPA has granted 'approval' 3 to the development projects of defendants Thomas Raley, Park Cattle Company and Harvey's Wagon Wheel, Inc., in violation of the Compact.

Jurisdiction in the district court was predicated solely on 28 U.S.C. 1331(a). 4 On defendants' motion, the District Court dismissed the action without prejudice on the ground that it lacked jurisdiction over the subject matter of plaintiffs' claims. Appellants now appeal that determination.

The appeal here presents but a single issue, yet one of first impression: whether a federal court has original jurisdiction over this suit as one arising under the Constitution, laws or treaties of the United States. For the reasons developed in this opinion, we hold that it does, and we reverse the decision below.

Appellants advance two arguments in support of their contention that the construction of a Congressionally sanctioned interstate compact is a matter of federal law. First, they argue that Congressional consent transforms the Compact into a law of the United States. Second, they urge that the construction of an interstate compact requires the application of federal 'common law' which is law of the United States within the meaning of 1331(a). Because we agree with the first argument asserted by appellants, we have no occasion to consider the second.

For this case to be within the purview of 1331(a), a right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiffs' claim. 5 The gravamen of the complaint is the alleged failure of TRPA to comply with the requirements of the Compact in various particulars. To determine the nature and scope of these requirements requires a construction of the Compact. Such construction, therefore, forms an essential element of the complaint. Thus, if the Compact can properly be characterized as a 'law' of the United States, then federal jurisdiction is established.

Counsel have not cited nor has independent research revealed any decision by the Supreme Court or any of the Circuit Courts of Appeals which deals directly with this issue. 6

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The Supreme Court has, however, in a series of cases considered the status of interstate compacts in connection with its certiorari jurisdiction. See Delaware River Com'n v. Colburn, 310 U.S. 419, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940); Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557, 95 L.Ed. 713 (1951). In these cases the Court addressed the question of whether a claim based on an interstate compact is cognizable under the provision for Supreme Court review, by writ of certiorari, of judgments of the highest state court where 'any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes

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of * * * the United States.' 28 U.S.C. 1257(3). In Colburn the Court unequivocally answered this question in the affirmative, holding that 'the construction of such a (bi-state) compact sanctioned by Congress by virtue of Article I, 10 cl. 3 of the Constitution, involves a federal 'title, right, privilege or immunity' which when 'specially set up or claimed' in a state court may be reviewed here on certiorari under 237(b) of the Judicial Code (the predecessor of 1257(3)).' 310 U.S. at 427, 60 S.Ct. at 1041. The Court has reaffirmed this holding in Dyer, 241 U.S. at 26, 71 S.Ct. 557, 95 L.Ed. 713.

In reaching this interpretation of the certiorari statute, Colburn and its progeny have firmly established that the construction of a compact, by virtue of Congressional consent, presents a federal question. This result has its genesis in the case of Pennsylvania v. The Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 15 L.Ed. 435 (1851), wherein the court stated that 'this compact (the Virginia-Kentucky Compact of 1789) by the sanction of Congress, has become a law of the Union. What further legislation can be desired for judicial action?' 54 U.S. at 565, 15 L.Ed. 435. 7 Although later decisions created considerable doubt as to the continued validity of that doctrine, Colburn has put these doubts to rest. 8

While the Court in Colburn felt it unnecessary to clearly articulate the basic premise of its decision, we conclude

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after careful investigation that the result there was based upon the implicit finding that the interstate compact involved was a 'statute of the United States' within the meaning of 28 U.S.C. 1257(3). Neither logic nor policy justifies a different interpretation of the substantially similar language in 28 U.S.C. 1331(a). 9 Therefore, a case involving the construction of an interstate compact which requires a judicial determination of the nature and scope of obligations set forth therein 'arises' under the 'laws' of the United States within the menaing of 1331(a). 10

We do not, of course, ignore the significant differences between original jurisdiction in the federal courts and certiorari jurisdiction in the Supreme Court. The test for determining whether a case involves substantial federal issues at the very outset of litigation differs from the test for making that determination after the case has passed through a state judicial system. For this reason in cases in which there is a claim of original jurisdiction, there is the Gully requirement that the federal question form an essential element' of the plaintiff's complaint. 11 No such requirement exists with respect to certiorari jurisdiction. There it is the record in the state tribunal and not the original complaint which must support the claim of a federal question. See Mishkin, The Federal Question in the District Courts,53 Colum.L.Rev. 157, 164-165. To erect, in addition, a distinction between what constitutes a federal law for certiorari purposes and what constitutes a federal law for original jurisdiction purposes would be artificial, unnecessary and irrational; we decline, therefore, to do so. The Compact must be deemed a law of the United States under Colburn and the requirements of Gully have been satisfied in this case. Therefore, jurisdiction should have been sustained in the district court under 1331(a).

Furthermore, post-Colburn decisions of the Supreme Court and strong policy considerations support this result. Appellees have argued that the need for a final arbiter of compact disputes requires only certiorari jurisdiction, and that the desirability of having state

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courts decide matters of state law, such as zoning and land use control, before that arbitration is undertaken precludes original jurisdiction in the federal courts. 12 We disagree. The Supreme Court has made it clear that the construction of an interstate compact is a matter of federal law, not the law of the party states. Petty v. Tennessee-Missouri Bridge Com'n, supra, 359 U.S. at 279-280, 79 S.Ct. 785, 3 L.Ed.2d 804. 13 State court consideration, therefore, cannot constitute a necessary predicate to proper construction...

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