766 F.2d 1308 (9th Cir. 1985), 84-2355, People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency

Docket Nº:84-2355.
Citation:766 F.2d 1308
Party Name:The PEOPLE OF the STATE OF CALIFORNIA ex rel. John VAN DE KAMP, Attorney General of the State of California, Plaintiff-Appellee, v. The TAHOE REGIONAL PLANNING AGENCY, a Separate Legal Entity Created by Bi-State Compact, Defendant-Appellant. LEAGUE TO SAVE LAKE TAHOE, a Non-Profit California Corporation, Plaintiff-Appellee, v. The TAHOE REGIONAL PL
Case Date:July 22, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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766 F.2d 1308 (9th Cir. 1985)


KAMP, Attorney General of the State of California,




Created by Bi-State Compact, Defendant-Appellant.

LEAGUE TO SAVE LAKE TAHOE, a Non-Profit California

Corporation, Plaintiff-Appellee,



and Does 1-100, Defendant-Appellant.

No. 84-2355.

United States Court of Appeals, Ninth Circuit

July 22, 1985

Argued and Submitted May 15, 1985.

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[Copyrighted Material Omitted]

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John K. Van de Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Richard M. Skinner, Dep. Atty. Gen., Sacramento, Cal., for People of State of Cal., et al.

E. Clement Shute, Jr., Shute, Mihaly & Weinberger, San Francisco, Cal., for League to Save Lake Tahoe.

Heaton, Doescher & Owen, Ltd., Gary A. Owen, Carson City, Nev., for Tahoe Regional Planning Agency.

Lawrence L. Hoffman, Hoffman, Lien, Faccinto & Spitzer, Tahoe City, Cal., for Tahoe Sierra Preservation Counsel.

J. Dennis Crab, Tahoe Basin Asso. of Governments, South Lake Tahoe, Cal., for Tahoe Basin Asso. of Governments.

On Appeal from the United States District Court for the Eastern District of California.

Before ANDERSON and CANBY, Circuit Judges, and NIELSEN [*], District Judge.

NIELSEN, District Judge:

The Tahoe Regional Planning Agency appeals from the district court's grant of a preliminary injunction enjoining it from approving any project development or construction in the Lake Tahoe Basin in the absence of its compliance with the Tahoe Regional Planning Compact of 1980. We affirm.


A. The Tahoe Regional Planning Compacts

In 1968, the states of California and Nevada entered into an interstate agreement designed to ensure conservation of resources and control of development in the Lake Tahoe Basin. The agreement, known as the Tahoe Regional Planning Compact, became effective when it received the consent of Congress in December 1969. Pub.L. No. 91-148, 83 Stat. 360 (1969).

The 1969 Compact created the Tahoe Regional Planning Agency (TRPA) and charged TRPA with the duty to develop a regional plan for the Tahoe Basin within eighteen months of its formation. TRPA succeeded in adopting a regional plan in December 1971. Various implementing rules, regulations, and ordinances were adopted during the following years.

Apparently, however, the 1969 Compact was "not the powerful anti-growth measure that some people ... wish[ed] it to be," California Tahoe Regional Planning Agency v. Jennings, 594 F.2d 181, 188-89 (9th Cir.), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 86 (1979), and in 1980, California and Nevada extensively amended the Compact. The amended Compact became effective on December 19, 1980, when Congress consented to the changes. Pub.L. No. 96-551, 94 Stat. 3233 (1980).

One of the most significant changes in the Compact is the requirement that TRPA develop and establish "environmental threshold carrying capacities" (ETCC's) for the Lake Tahoe Basin within eighteen months of the amended Compact's effective date. Article I(b); Article V(b). 1 An ETCC is 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." Article II(i). Examples include standards for air quality, water quality, soil conservation, vegetation preservation, and noise. Id. Within one year of adoption of the ETCC's, the Compact then requires TRPA to "amend the regional plan so that, at a minimum, the plan and all its elements ... achieves and maintains the adopted environmental threshold carrying capacities." Article V(c).

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Another significant change in the Compact concerns TRPA's authority to approve development projects in the Tahoe region. If an activity undertaken by an individual or a public agency "may substantially affect the land, water, air, space, or any other natural resources of the region," then such activity is a "project" for purposes of regional planning, Article II(h), and must be reviewed and approved by TRPA prior to development and construction. Article VI(b). The 1980 Compact permits TRPA to approve a project only if a detailed environmental impact statement indicates that it complies with the regional plan and any ordinances, rules, and regulations that implement the plan. Article VII; Article VI(b). To ensure this compliance, the Compact requires TRPA to "adopt ordinances prescribing specific written findings that the agency must make prior to approving any project in the region." Article V(g). The Compact instructs TRPA that these findings must "relate to environmental protection and ... insure that the project under review will not adversely affect implementation of the regional plan and will not cause the adopted environmental threshold carrying capacities of the region to be exceeded." Id.

The Compact contemplates a phase-in of these project approval requirements over at least a thirty month time period. As noted earlier, the Compact allowed TRPA eighteen months to develop the ETCC's, and one year thereafter to amend the regional plan. The Compact does not, however, specify a deadline for adoption of the V(g) ordinances. Instead, the Compact provides that until such ordinances are adopted, TRPA "may approve a project in the region only after making written findings ... that the project is consistent with the regional plan then in effect and with applicable plans, ordinances, regulations and standards of Federal and State agencies relating to the protection, maintenance and enhancement of environmental quality in the region." Article VI(b).

B. The Planning Process

On August 26, 1982, two months later than mandated, TRPA accomplished its first task under the 1980 Compact by adopting Resolution 82-11, which establishes environmental thresholds for water quality, soil conservation, air quality, vegetation preservation, wildlife, fisheries, noise, recreation, and scenic resources. In most instances, TRPA adopted a measurable "numerical standard" as a threshold. For example, the numerical standard for ozone, under air quality, is 0.08 parts per million averaged over one hour. On the other hand, "[i]n certain instances, it was not reasonably possible or feasible to set forth environmental threshold carrying capacities as numerical standards, requiring in such instances that standards be set forth as management standards." Resolution 82-11, p 9. For example, the "management standard" for impervious cover, under soil conservation, requires that "impervious cover ... comply with the Land-Capability Classification of the Lake Tahoe Basin, California-Nevada, A Guide for Planning, Bailey, 1974." Resolution 82-11, Exhibit A at 3.

Following adoption of the ETCC's, TRPA began working toward its second goal under the 1980 Compact--the adoption of amendments to the regional plan. While we have reviewed the lengthy administrative record recounting the planning process that TRPA placed before the trial court in its opposition to the motion for preliminary injunction, we will not detail it here. Suffice it to say that the extensive public involvement, the numerous Governing Body debates, deliberations, and deadlocks, and the extent of TRPA staff involvement made the process of amending the regional plan an exceedingly complex task. Thus, it is not surprising that in August, 1983, one year after adoption of the ETCC's, it became clear that the plan amendments would not be completed as mandated by Article V(c). Faced with an impossible deadline, and unsure whether it had the authority to approve any project in the region without the amended plan in place as contemplated by the 1980 Compact, TRPA therefore chose to temporarily suspend,

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for 90 days, further project approvals. Resolution 83-21, August 26, 1983. The suspension in fact remained in effect until the date of adoption of the amendments to the regional plan.

Finally, on April 26, 1984, a full ten months later than mandated by the Compact, TRPA succeeded in adopting amendments to the regional plan by way of Ordinance 84-1. That same day, the State of California filed a lawsuit against TRPA in District Court in Sacramento, seeking declaratory and injunctive relief. In general, California sought to establish that the plan amendments did not comply with Compact requirements and to enjoin TRPA from approving any projects in the Tahoe region under the amended plan. The League to Save Lake Tahoe filed a similar lawsuit the next day, and the two cases were thereafter consolidated.

C. The Preliminary Injunction

On Plaintiffs' motion for a preliminary injunction, the district court found the amended plan contrary to Compact requirements in at least three respects, and thus enjoined TRPA from approving any project in the Lake Tahoe Basin pending trial. Specifically, in reference to certain sections of Ordinance 84-1, the court found that:

1. the section 3.00 written findings, adopted pursuant to Article V(g) of the Compact, do not in fact comply with that article. Article V(g) requires TRPA to find, with respect to each project, that the project will not cause the established thresholds to be exceeded. Section 3.00 does not require this finding to be made;

2. sections 4.20 and 4.21 allow approval of certain single family residence construction projects without the making of proper written findings. Approximately 200 homes are exempted even from the deficient section 3.00 findings. All projects must be subject to proper V(g) findings before they may be approved by TRPA;

3. eighty-seven of the exempted single family residences, if built, would cause the adopted threshold for impervious cover to be...

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