566 F.2d 1353 (9th Cir. 1977), 75-2400, Jacobson v. Tahoe Regional Planning Agency

Docket Nº75-2400, 76-1182, 76-1289 and 76-1608.
Citation566 F.2d 1353
Party NameNathan S. JACOBSON, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY, a political subdivision of the States of Nevada and California, the State of Nevada, and the County of Washoe, Defendants-Appellees. Melvin F. JONES, Verona M. Jones, his wife, Leo D. Wyrsch, Cora E. Wyrsch, his wife, Paul W. Gould, Lola E. Gould, his wife, Joseph Trinchero
Case DateDecember 21, 1977
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1353

566 F.2d 1353 (9th Cir. 1977)

Nathan S. JACOBSON, Plaintiff-Appellant,

v.

TAHOE REGIONAL PLANNING AGENCY, a political subdivision of

the States of Nevada and California, the State of

Nevada, and the County of Washoe,

Defendants-Appellees.

Melvin F. JONES, Verona M. Jones, his wife, Leo D. Wyrsch,

Cora E. Wyrsch, his wife, Paul W. Gould, Lola E. Gould, his

wife, Joseph Trinchero, Delores G. Trinchero, his wife, Paul

Williams and Lanai Corporation, a California Corporation,

Plaintiffs-Appellants,

v.

TAHOE REGIONAL PLANNING AGENCY (T.R.P.A.), a political

subdivision of the States of Nevada and California,

California Tahoe Regional Planning Agency, the State of

California, Placer County and El Dorado County,

Defendants-Appellees.

LAKE COUNTRY ESTATES, INC., a corporation, and Country Club

Estates, a partnership, Plaintiffs-Appellants,

v.

TAHOE REGIONAL PLANNING AGENCY, COUNTY OF EL DORADO, STATE

OF CALIFORNIA, et al., Defendants-Appellees.

LAYTON-TAHOE PROPERTIES, Plaintiff-Appellant,

v.

TAHOE REGIONAL PLANNING AGENCY, State of California, State

of Nevada, County of Placer, United States of

America, Defendants-Appellees.

Nos. 75-2400, 76-1182, 76-1289 and 76-1608.

United States Court of Appeals, Ninth Circuit

December 21, 1977

As Amended on Denial of Rehearing Jan. 30, 1978.

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Richard A. Clarke (argued), of Rockwell, Fulkerson & Barry, San Rafael, Cal., for plaintiffs-appellants.

Gary A. Owen (argued), of Owen & Rollston, South Lake, Tahoe, Cal., Gary H. Moore (argued), of McCutchen, Doyle, Brown & Enerson, San Francisco, Cal., James H. Thompson, Chief Deputy Atty. Gen. (argued), Carson City, Nev., Reginald Littrell (argued), Auburn, Cal., for defendants-appellees.

Appeals from the United States District Court for the Eastern District of California.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT, GOODWIN, and ANDERSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

I.

THE TAHOE REGIONAL PLANNING COMPACT

Some background information is necessary for an understanding of this opinion. In 1968, California and Nevada entered into a compact to create a regional agency with power to regulate and control development within the Lake Tahoe Basin. Cal. Gov't Code § 66800 et seq. (West Supp.1974); Nev.Rev.Stat. § 277.190 et seq. (1973). Congress consented to the Tahoe Regional Planning Compact (hereinafter "the Compact") in December 1969. 1 Pub.Law 91-148, 83 Stat. 360 (1969).

The governing body of the Tahoe Regional Planning Authority (hereinafter "the TRPA") was charged with adopting ordinances, rules, regulations and policies to effectuate a regional plan setting minimum standards for water purity, zoning, shoreline development and the like. 2 The TRPA enacted a comprehensive Land Use Ordinance which limited the permitted uses of certain lands within the Basin, including those owned by appellants.

Land belonging to appellants and previously zoned as residential, multiple residential, or commercial was rezoned as "General

Page 1358

Forest District," 3 "Recreation District," 4 and "Conservation Reserve." 5 Generally, the ordinance allowed very limited residential use, and no tourist, residential or commercial use, of the rezoned land. Other permitted uses included hiking trails, campgrounds, stables, recreation camps, skiing facilities, timber growing, livestock grazing and electrical substations. In addition, outdoor recreation concessions and educational facilities were allowed in the "Recreation District."

Appellants complain that the Land Use Ordinance constituted an inverse condemnation, or a "taking," of their property. Basing their claims on the Fifth and Fourteenth Amendments to the United States Constitution and on the just compensation clauses of the constitutions of California and Nevada, they sought injunctive, declaratory and monetary relief against a variety of defendants, including the TRPA, its executive director and members of its governing board, several counties in the Lake Tahoe Basin, the states of California and Nevada, and the United States.

The district courts dismissed the suits for a variety of reasons. On appeal we rendered an opinion on August 5, 1977. On petition for rehearing, and responses thereto, we withdraw our opinion of August 5th, and issue the following opinion in its place. The petition for rehearing is otherwise denied.

II.

THE CAUSES OF ACTION

Before we can ascertain whether appellants' complaints should have withstood the motions to dismiss below, we must determine under what theories appellants might have proceeded to trial. First, we consider the causes of action grounded on the just compensation provisions of the constitutions of California and Nevada.

By consenting to the Compact, Congress transformed the contract between the two states into federal law. League to Save Lake Tahoe v. TRPA,507 F.2d 517, 523 & n. 13 (9th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1398, 43 L.Ed.2d 654 (1975). Although the TRPA must be considered an agency of the contracting states, it operates under the aegis of federal law. Consequently, causes of action based on the state constitutional provisions must fail because the Compact, as federal law, preempts state law.

Appellants also challenged the TRPA's ordinance under the due process clause of the Fourteenth Amendment to the United States Constitution, alleging arbitrary and oppressive state action. We think that a cause of action rooted in the Fourteenth Amendment may be appropriate since the TRPA is, in effect, an agency of the contracting states. 6 It would be unreasonable to allow states to avoid the constraints imposed by the Fourteenth Amendment simply by joining forces with each other. Such an aggregation of state power makes the need for those constraints even more pressing.

Finally, appellants challenge appellees' actions under the due process and just compensation clauses of the Fifth Amendment. Since the Compact is federal law, League to Save Lake Tahoe v. TRPA, supra, resort to the Fifth Amendment as well is proper.

We find, however, that a cause of action for inverse condemnation under the just compensation clause cannot be stated against the TRPA, its executive director or members of its governing board because they lack condemnation authority. 7

Page 1359

Appellants do allege facts sufficient to support a claim under the due process clause. 8 As the Supreme Court has stated:

Due process of law in the (Fifth Amendment) refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law.

Hurtado v. California, 110 U.S. 516, 535, 4 S.Ct. 111, 120, 28 L.Ed. 232 (1884).

The Compact is a "law of the land," deriving its authority from powers conferred upon Congress by the Constitution. The due process clause was intended to protect the liberty and property interests of individuals from invasion by the arbitrary and oppressive exercise of power by the federal government. Since appellants allege such an invasion of their property interests, they have stated a cause of action under the Fifth Amendment. 9

III.

LIABILITY OF THE TRPA

We turn now to the liability of the TRPA, the only defendant against whom the district courts did not dismiss the suits.

The Compact evidences a delegation to a separate legal entity of authority ordinarily residing in each of the two states. With Congress' constitutionally required approval, the TRPA exercises a species of state authority. In effect, the bi-state Authority serves as an agency of the participant states, exercising a specially aggregated slice of state power. 10 As such, it would appear that the TRPA is protected by sovereign

Page 1360

immunity, preserved for the states by the Eleventh Amendment.

The Supreme Court indicated as much in Petty v. Tennessee-Missouri Bridge Com'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). Although the defendant was a bi-state corporation created by compact, Justice Douglas, writing for three Justices in the majority, phrased the issue in a telling manner: "The question here is whether Tennessee and Missouri have waived their immunity under the facts of this case." 359 U.S. at 277, 79 S.Ct. at 787 (emphasis added). The Court allowed the suit to lie against the bi-state corporation because it found that the constituent states had expressly waived their immunity.

Admittedly, the six-Justice majority was evenly divided on the "constitutional question as to whether the Eleventh Amendment immunizes from suit agencies created . . . under state compacts." Without indicating any doubt as to the wisdom of finding an Eleventh Amendment immunity for bi-state corporations, three concurring Justices felt that it was unnecessary, given the finding of waiver, to reach the constitutional question.

But Petty 's precedential value is strengthened by the three Justices in dissent. With Justice Frankfurter writing, they concurred in what they understood to be "(t)he Court('s) acknowledg(ment of) the applicability of the provisions of the Eleventh Amendment to the Tennessee-Missouri Bridge Commission." They limited their dissent to the finding of waiver.

The final tally has six Justices, along with the Court of Appeals for the Eighth Circuit, agreeing that bi-state compacts do preserve Eleventh Amendment immunity for entities created under them. Three Justices did not reach the question. None argued that the Eleventh Amendment does not apply.

Following the precedent of Petty, we conclude that the TRPA...

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64 practice notes
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...lie under either the First, Paton v. La Prade, 524 F.2d 862 (C.A. 3, 1975), or the Fifth Amendment, Jacobson v. Tahoe Regional Planning, 566 F.2d 1353 (C.A. 9, 1977), rev'd in part sub nom. Lake County Estates Inc. v. Tahoe Regional Planning Agency, Inc., 440 U.S. 391, 99 S.Ct. 1171, 59 L.E......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...v. France, 269 F.2d 555, 560 (9th Cir. 1959) ), such a waiver is not lightly to be inferred. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361 (9th Cir. 1977). Appellant first theorizes that California has waived its immunity by acquiring and operating a bridge in interstate c......
  • 911 F.2d 1331 (9th Cir. 1990), 86-2266, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 9 Agosto 1990
    ...to Nevada and California on grounds of sovereign immunity and dismissed as to TRPA based on Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (9th Cir.1977), rev'd in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. ......
  • 543 F.Supp. 277 (D.Nev. 1982), CIV-R-81-202, LeRoy Land Development Corp. v. Tahoe Regional Planning Agency
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Nevada
    • 29 Junio 1982
    ...to Save Lake Tahoe v. Tahoe Regional Planning Agency, 594 F.2d 181, 190 (9th Cir. 1979); Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (9th Cir. 1977). Thus, "questions concerning the interpretation and application of TRPA ordinances present federal questions under 1331(a).......
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64 cases
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...lie under either the First, Paton v. La Prade, 524 F.2d 862 (C.A. 3, 1975), or the Fifth Amendment, Jacobson v. Tahoe Regional Planning, 566 F.2d 1353 (C.A. 9, 1977), rev'd in part sub nom. Lake County Estates Inc. v. Tahoe Regional Planning Agency, Inc., 440 U.S. 391, 99 S.Ct. 1171, 59 L.E......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...v. France, 269 F.2d 555, 560 (9th Cir. 1959) ), such a waiver is not lightly to be inferred. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361 (9th Cir. 1977). Appellant first theorizes that California has waived its immunity by acquiring and operating a bridge in interstate c......
  • 911 F.2d 1331 (9th Cir. 1990), 86-2266, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 9 Agosto 1990
    ...to Nevada and California on grounds of sovereign immunity and dismissed as to TRPA based on Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (9th Cir.1977), rev'd in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. ......
  • 543 F.Supp. 277 (D.Nev. 1982), CIV-R-81-202, LeRoy Land Development Corp. v. Tahoe Regional Planning Agency
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Nevada
    • 29 Junio 1982
    ...to Save Lake Tahoe v. Tahoe Regional Planning Agency, 594 F.2d 181, 190 (9th Cir. 1979); Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (9th Cir. 1977). Thus, "questions concerning the interpretation and application of TRPA ordinances present federal questions under 1331(a).......
  • Request a trial to view additional results