547 F.2d 1072 (9th Cir. 1976), 75-2516, League to Save Lake Tahoe v. B.J.K. Corp.

Docket Nº:75-2516.
Citation:547 F.2d 1072
Party Name:LEAGUE TO SAVE LAKE TAHOE, a non-profit corporation, James L. Porter, Jr., Plaintiffs-Appellants, v. B.J.K. CORPORATION, a Nevada Corporation and County of Washoe, a political subdivision of the State of Nevada, Defendants-Appellees.
Case Date:December 08, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1072

547 F.2d 1072 (9th Cir. 1976)

LEAGUE TO SAVE LAKE TAHOE, a non-profit corporation, James

L. Porter, Jr., Plaintiffs-Appellants,

v.

B.J.K. CORPORATION, a Nevada Corporation and County of

Washoe, a political subdivision of the State of

Nevada, Defendants-Appellees.

No. 75-2516.

United States Court of Appeals, Ninth Circuit

December 8, 1976

Rehearing En Banc Denied March 3, 1977.

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

Paul A. Bible (argued), of McDonald, Carano, Wilson, Bergin & Bible, Reno, Nev., Larry D. Lessly, Deputy Dist. Atty. (argued), of Reno, Nev., for defendants-appellees.

Before MERRILL and HUFSTEDLER, Circuit Judges, and KING, [*] District Judge.

Page 1073

HUFSTEDLER, Circuit Judge:

This appeal is a sequel to League to Save Lake Tahoe v. Tahoe Regional Planning Agency (9th Cir. 1974) 507 F.2d 517. The issue is whether this suit arising under the Tahoe Regional Planning Agency's ("TRPA") Land Use Ordinance raises a federal question permitting the League to invoke federal question jurisdiction. The district court dismissed the suit for lack of subject matter jurisdiction. We reverse because the suit raises serious issues that affect the effective functioning of the Tahoe Regional Planning Compact ("Compact").

The Compact was adopted in 1969, and in March, 1970, the TRPA was convened. Sometime in 1969, or 1970, the predecessors in interest to defendant B.J.K. Corporation applied to defendant Washoe County for a building permit. The corporation sought to construct a 15-story, 274-room hotel on the edge of Lake Tahoe adjacent to the stateline at North Lake Tahoe, Nevada. The building permit was granted on September 10, 1970, and construction commenced. At some point before 1972, construction was abandoned, with only the garage portion of the structure completed. On April 11, 1972, the TRPA Land Use Ordinance became effective. This ordinance included a "grandfather clause" that exempted existing uses including projects "upon which construction has commenced as allowed by . . . permit prior to February 10, 1972." (Tahoe Regional Planning Agency, Ord. 4 § 9.11.) However, the exemption does not apply "(i)f any such use ceases for a period of one (1) year." (Id.) The building permit was renewed on June 5, 1972, January 4, 1974, and January 2, 1975. Shortly after B.J.K. undertook to resume construction in May, 1975, this action was filed.

Plaintiffs alleged both violations of the TRPA Land Use Ordinance and, as a pendent claim, violations of the Washoe County Uniform Building Code. The district court granted defendants' motion to dismiss for lack of subject matter jurisdiction under 28 U.S.C. § 1331(a), and plaintiffs appeal. On appeal they urge three theories of jurisdiction: (1) that their case falls directly under League to Save Lake Tahoe, supra, because construction and enforcement of the Compact is an essential element of their claims; (2) that construction of the Land Use Ordinance presents a federal question; and (3) that enforcement of the Ordinance raises issues of federal common law.

The starting point for our analysis is League to Save Lake Tahoe v. Tahoe Regional Planning Agency (9th Cir. 1974) 507 F.2d 517, in which we held that the Tahoe Compact is a "law of the United States" within the meaning of Section 1331(a) by virtue of the congressional consent to that compact. (See Comment, "Federal Question Jurisdiction to Interpret Interstate Compacts"64 Geo.L.J. 87 (1975).) Questions arising under the TRPA Land Use Ordinance enacted pursuant to the Compact do not automatically give rise to Section 1331(a) jurisdiction, because the Compact is not an ordinary federal statute and the Ordinance is not directly analogous to the Code of Federal Regulations. Interstate compacts occupy a unique position in our federal system. 1

Consent to an interstate compact (U.S.Const. Art. 1, § 10, cl. 3) is a way station on the road to exercise of congressional power under the commerce clause. (Id. Art. 1, § 8, cl. 3.) By permitting a state-initiated response to regional matters, Congress has done something quite different from incorporating a state law into a federal statute or from enacting a federal regulatory statute. (Frankfurter & Landis, supra, at 718.) The very diversity among types of compacts 2 alone suggests a more detailed approach.

Page 1074

Under the "well-pleaded complaint" rule, federal question jurisdiction exists only where the plaintiff would be required to plead and prove a proposition of federal law to win a default judgment. (Smith v. Kansas City Title & Trust Co. (1921) 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577; Louisville & Nashville R.R. v. Mottley (1908) 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126. See generally Cohen, "The Broken Compass: The Requirement that a Case Arise 'Directly' Under Federal Law" (1967) 115...

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