League to Save Lake Tahoe, Inc. v. Trounday
| Decision Date | 15 June 1979 |
| Docket Number | No. 77-2058,77-2058 |
| Citation | 598 F.2d 1164 |
| Parties | , 9 Envtl. L. Rep. 20,598 LEAGUE TO SAVE LAKE TAHOE, INC., a California Membership Corporation, Claudia Corum, Donna Atherton, Hilton Atherton, Jerry Feldmiller, Marilyn Feldmiller, Mark Litz, John McCauley, John Callister, Bruce Bohlman, Delta Mack, Phil Hannifan, Janet Hannifan, and Jeff Harry, Appellants, v. Roger S. TROUNDAY, Director of the Nevada Department of Human Resources, State of Nevada, Nevada Department of Human Resources, Oliver Kahle, and Ted Jennings, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph J. Brecher, Oakland, Cal., for appellants.
Breen, Young, Whitehead & Hoy, F. R. Breen, Reno, Nev., Stephen C. Balkenbush, Deputy Atty. Gen., Carson City, Nev., John J. Frankowich, Reno, Nev., Robert List, Atty. Gen., Matthew H. Feiertag, Deputy Atty. Gen., Carson City, Nev., McDonald, Carano, Wilson, Bergin & Bible, Reno, Nev., for respondents.
Appeal from the United States District Court for the District of Nevada.
Before BARNES and CHOY, Circuit Judges, and BARTELS, * District Judge.
This appeal presents two principal issues: (1) whether federal jurisdiction exists to review a state administrative determination to issue a registration certificate for a proposed indirect source of air pollution rendered pursuant to provisions of the Nevada state implementation plan, and (2) if so, whether appellants' contention that such administrative determination was erroneous states a cause of action upon which relief may be granted. League to Save Lake Tahoe, Inc., ("League") and others appeal from the judgment and order of the United States District Court for the District of Nevada, Thompson, J., granting appellees' motion to dismiss the complaint under Rule 12(b) of the Federal Rules of Civil Procedure. Appellants instituted this action under section 304 of the Clean Air Act (hereinafter cited as the "Act"), 42 U.S.C. § 1857h-2(a) (), and under the federal question statute, 28 U.S.C. § 1331(a), seeking declaratory and injunctive relief to prevent the construction of two hotel-casinos on the south shore of Lake Tahoe at Stateline, Nevada.
Located within the 500 square mile Tahoe Basin, Lake Tahoe is a mountain lake of exceptional beauty, bordered on its western shore by California and on its eastern shore by Nevada. It is approximately 190 square miles in size, 1,645 feet in depth, and is renowned for its pristine clarity and scenic appeal. Because of its proximity and accessibility to the metropolitan areas of northern California and western Nevada, Lake Tahoe has rapidly become one of the most popular resort areas in the far western United States. Inevitably, however, with this increasing popularity comes the danger of serious environmental pollution, not only of the lake itself but of the Tahoe Basin and High Sierra Mountains of which the lake is a part. Mitigation of that danger is the motivating basis for this action.
Appellant League is a privately-funded non-profit membership corporation, organized under the laws of California and dedicated to protection of the environment in the Tahoe Basin, where many of its members live and work. The League is joined by thirteen individual residents of the area who allege that they will be personally injured as a result of the violations alleged in the complaint. 1 Appellees are Roger Trounday, Director of the Nevada Department of Human Resources, who is the state official charged with the duty of carrying out the air pollution laws of Nevada; the Nevada Department of Human Resources, the designated state air pollution control agency for purposes of the Act; and Oliver Kahle and Ted Jennings, owners and operators of the Hotel Oliver and the Tahoe Palace Hotel, respectively, both of which are the focus of the complaint.
Appellants charge that certain administrative actions of the state appellees and construction of the hotel-casinos by the individual appellees violate relevant provisions of the Act and Nevada's state implementation plan. Although numerous issues are raised by this appeal, we conclude that the complaint was properly dismissed by the district court for failure to state a claim upon which relief may be granted, and, accordingly, we affirm. 2
Because the factual basis of this action as set forth in the complaint is included in the opinion of the district court at 427 F.Supp. 1350, it is unnecessary here to provide more than a summary of the essential background. Pursuant to section 109(b)(2) of the Act, 42 U.S.C. § 7409(b)(2), the Environmental Protection Agency ("EPA") is required in order to protect the public health to promulgate national primary ambient air quality standards for various air pollutants, including carbon monoxide ("CO"). As appears at 40 C.F.R. § 50.8, EPA has promulgated such standards for CO as follows: 35 parts per million ("ppm") for a one-hour period and 9 ppm for any eight-hour period. To achieve these levels, each state is mandated under § 110(a) of the Act, 42 U.S.C. § 7410(a), to adopt a "plan which provides for implementation, maintenance, and enforcement" of the ambient air quality standards and to submit its implementation plan to EPA for approval. Included in each plan must be, Inter alia, "emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance" of the ambient air quality standards. 42 U.S.C. § 7410(a)(2)(B). If the plan submitted meets the substantive and procedural criteria specified in § 110, EPA must approve it.
The state of Nevada submitted its implementation plan to EPA, and the portion thereof relating to the primary ambient air standard for CO was approved and accepted. 40 C.F.R. § 52.1472. The portion of the plan relevant to this appeal concerns the pre-construction issuance of "registration certificates" or "permits" for "complex (or indirect) sources of air pollution." Nev.Air Qualify Reg. § 3.2.2. Briefly stated, the hotel-casinos here involved are classified as "indirect" or "complex" sources because, by virtue of the automobile traffic they will attract, they have or solicit
secondary or adjunctive activity which emits or may emit any air contaminant for which there is an ambient air quality standard, notwithstanding that such property or facility may not itself possess the capability of emitting such air contaminants. Complex sources include, but are not limited to (a) highways and roads; (b) parking facilities . . .; (d) recreation, amusement, sports, or entertainment facilities.
Nev.Rev.Stat. § 445.446(2). Under § 13.1.1 of the Nevada air quality regulations, the owner of a proposed new complex source is required to apply to the Director of the Department of Human Resources for a registration certificate and must submit an environmental evaluation of the project. 3 If the environmental evaluation shows, or if the Director determines, "that the source will prevent the attainment and maintenance of the State and national ambient air quality standards or will cause a violation of the applicable control strategy contained in the approved Air Quality Implementation Plan," the Director is prohibited from issuing a registration certificate. Nev.Air Quality Reg. § 13.1.3.
On August 12, 1974, appellees Kahle and Jennings submitted separate applications for registration certificates for proposed new hotel-casinos. The facility proposed by Kahle required 33,512 square feet of casino floor space, 960 hotel rooms, and parking for 2400 cars, and that proposed by Jennings required 32,350 square feet of casino floor space, 560 hotel rooms, various convention and theater facilities, and parking for 1600 cars. After initially rejecting both applications upon his finding that the planned construction would violate ambient air standards for CO, appellee Trounday found, based on revised applications incorporating substantial changes in the plans, that the facilities would not violate the standards, and, accordingly, he issued the requested certificates on May 19, 1975 and April 15, 1975, respectively, which issuance was subject to administrative review by the Nevada Environmental Commission pursuant to various provisions of the Nevada state implementation plan. 4
Rather than resorting to this state administrative remedy, appellants instead demanded that the certificates be withdrawn, asserting that their issuance was an abuse of discretion because the technical analysis upon which the action was taken "did not take into account the situation that would occur under the most adverse meteorological conditions and failed to consider CO levels within the project areas." Upon appellants' request, officials of the state Department of Human Resources then "recalculated expected CO levels within the hotel grounds under adverse conditions using the same methodology that had been employed to assess the applicants' environmental analyses," and found, according to appellants, that the results indicated substantial violation of the CO standards.
When state officials did not comply with the demand to withdraw the certificates, appellants brought this action, claiming that because construction of the facilities would cause violations of the ambient air quality standards for CO cited Supra, defendants had not complied with § 3.2.2 of the Nevada air quality regulations requiring a valid certificate, and further, that this constituted a violation of an emission standard or limitation within the meaning of § 304 of the Act. Accordingly, they sought a declaration that the certificates are invalid and an order restraining construction until valid certificates could be issued. Upon defendants' motion to dismiss the complaint, the district court dismissed the action on March 10, 1977, and this appeal followed.
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