Sierra Club v. Tahoe Reg'l Planning Agency

• Decision Date: 02 November 2016
• Docket Number: 14-16513,Nos. 14-15998,s. 14-15998
• Citation: 840 F.3d 1106
• Parties: Sierra Club; Friends of the West Shore, Plaintiffs–Appellants, v. Tahoe Regional Planning Agency, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

840 F.3d 1106

Sierra Club; Friends of the West Shore, Plaintiffs–Appellants,

v.Tahoe Regional Planning Agency, Defendant–Appellee.

Nos. 14-15998

14-16513

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2016, San Francisco, California

Filed November 2, 2016

Trent W. Orr (argued) and Wendy S. Park, Earthjustice, San Francisco, California, for Plaintiffs–Appellants.

Whitman F. Manley (argued) and Howard F. Wilkins III, Remy Moose Manley LLP, Sacramento, California; John L. Marshall, Tahoe Regional Planning Agency, Stateline, Nevada; for Defendant–Appellee.

Kamala D. Harris, Attorney General; Daniel L. Siegel, Supervising Deputy Attorney General; Nicole U. Rinke, Deputy Attorney General; Sacramento, California; for Amicus Curiae California Resources Agency.

Cassandra P. Joseph, Senior Deputy Attorney General; Office of the Attorney General, Carson City, Nevada; for Amicus Curiae Nevada Department of Conservation and Natural Resources.

Thomas Watson, City Attorney; Nira Doherty, Assistant City Attorney; City of South Lake Tahoe, South Lake Tahoe, Nevada; for Amici Curiae City of South Lake Tahoe, California; El Dorado County, California; Placer County, California; Douglas County; Nevada; Carson City and County, Nevada; and Washoe County, Nevada.

Lewis S. Feldman and Kara L. Thiel, Feldman McLaughlin Thiel LLP, Zephyr Cove, Nevada, for Amici Curiae Lake Tahoe Community College, South Shore Chamber of Commerce, North Lake Tahoe Chamber of Commerce, Sierra Nevada Association of Realtors, Incline Village Board of Realtors, Lake Tahoe Visitors Authority, Tahoe Douglas Visitors Authority, South Tahoe Alliance of Resorts, and Barton Health.

Before: J. Clifford Wallace, Mary M. Schroeder, and N. Randy Smith, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

INTRODUCTION

The Lake Tahoe Region is an area of unmatched beauty surrounding the largest alpine lake in North America. It first caught the world's attention with the 1960 Winter Olympics at Squaw Valley, when the area became a recreation destination and home to a rapidly expanding population. It has since become the focus not only of admiration for the lake's beauty and clarity, but of litigation over the efforts to preserve them. See, e.g. , Suitum v. Tahoe Reg'l Planning Agency , 520 U.S. 725, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) ; People v. Tahoe Reg'l Planning Agency , 766 F.2d 1308, 1310 (9th Cir. 1985) ; Sierra Club v. Tahoe Reg'l Planning Agency , 916 F.Supp.2d 1098, 1105 (E.D. Cal. 2013).

This case concerns the Regional Plan Update (“RPU”) that the Tahoe Regional Planning Agency (“TRPA”) adopted in 2012 after more than ten years of work. Plaintiffs, The Sierra Club and Friends of the West Shore, are environmentalist organizations that challenged the environmental impact statement (“EIS”) for the RPU. They now appeal the district court's summary judgment in favor of TRPA.

The RPU generally restricts future development to areas that are already developed, and sets forth the amount of further development that will be permitted in those areas in the future. The precise nature of that development is to be determined in Area Plans to be adopted later.

Plaintiffs' principal contentions in this appeal are that the RPU fails adequately to address the localized effects of the runoff created by the amount of development permitted, and that the RPU improperly assumes that best management practices (“BMP”s) can be utilized to achieve the planning goals, in light of TRPA's poor record of enforcing BMPs in the past.

We also must consider TRPA's challenge to standing and ripeness. While there will doubtless be more litigation concerning subsequent Area Plans, Plaintiffs' interests in the lake are affected by the RPU, and they will have no future opportunity to challenge the policies the RPU adopts. We therefore hold that Plaintiffs have standing to assert claims that are ripe.

On the merits, however, we conclude that the district court properly entered summary judgment in favor of TRPA. The draft EIS drew criticisms that necessitated substantial revisions, but the final EIS for the RPU adequately addressed localized impacts on soil conservation and water quality. Notably, while California had strenuously objected to certain aspects of the draft EIS, particularly with respect to the localized impacts of runoff, both California and Nevada now urge approval of the plan, as evaluated in the final EIS. We also hold that TRPA reasonably concluded that, in light of anticipated improvements in BMP maintenance, the development permitted in the RPU would have less than a significant effect on water quality.

Our analysis must take place against the background of past efforts to maintain the pristine quality of the lake, so we begin with an historical summary.

HISTORICAL BACKGROUND OF TRPA'S 2012 REGIONAL PLAN UPDATE

Lake Tahoe is located in the northern Sierra Nevada Mountains, and covers 191 square miles. The Lake Tahoe Region comprises 501 square miles, including the lake. The Region encompasses the Lake Tahoe basin, a watershed situated between the main crest of the Sierra Nevada and the Carson mountain ranges. The lake's outlet is the Truckee River, running from the north end of Lake Tahoe to Pyramid Lake in Nevada. The basin was acquired by the United States in the mid-1800s, but later in the century, private owners acquired much of the land and converted it to agricultural use, as well as beginning the resort industry at the south end of the lake. See Richard J. Fink, Public Land Acquisition for Environmental Protection: Structuring a Program for the Lake Tahoe Basin , 18 Ecology L.Q. 485, 493, 498–99 (1991).

Two-thirds of the region is in California and one-third is in Nevada. In the late twentieth century, the population of the region expanded by more than 70%, with the most rapid expansion, as described in the draft EIS, occurring in the 1970s.

The attraction is the lake's size, depth, and distinctive blue color. The lake's clarity is the result of the lack of algae. See League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency , 739 F.Supp.2d 1260, 1264 (E.D. Cal. 2010), aff'd in part & vacated in part , 469 Fed.Appx. 621 (9th Cir. 2012). In the region's natural state, its poorly developed soils contribute relatively small amounts of sediment to the lake, and biological communities, known as stream environment zones (“SEZ”s), remove sediments and nutrients. See Fink, 18 Ecology L.Q. at 494.

Human activity in the late twentieth century, however, began increasing nutrients and sediments in the lake, bringing about a decline in clarity. Deposits tied to human activity were to blame. See Holly Doremus, Reinvigorating the Union of Wonder and Power , 24 Va. Envtl. L.J. 281, 285 (2005). According to scientists, the loss of clarity was tied to nitrogen and phosphorous related to soil erosion, sewage discharge, and runoff from impervious developments. Id. More recently, scientists added to the list of threats atmospheric deposits caused by rain washing nitrogen from automobile exhaust down into the lake. Id . at 285–86 ; see also Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency , 322 F.3d 1064, 1070 (9th Cir. 2003) (explaining the process of “eutrophication,” by which nutrients encourage the growth of algae, which makes the water greener and less clear and depletes oxygen in the water, to the detriment of fish and other animals). As this court has explained, artificial disturbance of the land, especially in steeper areas and areas near streams and other wetlands, greatly increases soil erosion and the flow of nutrients into the lake. Tahoe–Sierra , 322 F.3d at 1070. There have been other problems as well. As one district court put it, “[t]he Lake Tahoe Basin has also suffered from degradation of other measures of water and air quality. Many of the aesthetic and recreational values of the region have been impaired, including scenery, noise, and the ability to use the lake for recreational purposes.” League , 739 F.Supp.2d at 1265. These declines have been caused by onshore development, piers and other structures in the lake, and emissions from motorized watercraft. Id .

The visible decline in water clarity led to efforts to reduce discharges into the lake, beginning with prohibition of sewage into any waters of the Tahoe basin. See Fink, 18 Ecology L.Q. at 504. In 1968, California and Nevada entered into the first Regional Planning Compact, which Congress approved in 1969. Suitum , 520 U.S. at 729, 117 S.Ct. 1659. The Compact created TRPA to serve as a bi-state land use and environmental resource planning agency for the Lake Tahoe Region. See id . ; Compact art. I(b). TRPA's governing board includes a California delegation and a Nevada delegation, with delegation members appointed by various state, county, and city entities. Compact art. III(a)-(g). TRPA appoints an advisory planning commission and employs an executive officer and other staff and legal counsel. Compact arts. III(h), IV(a).

The original Compact also adopted a system, known as the “Bailey system,” for classifying the environmental sensitivity of the lands, with limits for the amount of development on each type. See Tahoe–Sierra , 322 F.3d at 1070. That system remains as part of TRPA's regulatory scheme, but was not enforced with sufficient strictness to protect the lake and its environment. As this court explained, TRPA's regulatory scheme, incorporating the Bailey system, “was diluted in its implementation by numerous exceptions permitting development on sensitive lands.” Id . at 1070–71. In other words, some people thought the 1969 Compact was not sufficiently anti-growth. See People , 766 F.2d at 1310.

In 1980, Congress therefore approved Compact amendments, requiring TRPA to adopt a Regional Plan, and barring any development exceeding environmental threshold carrying capacities. Suitum , 520 U.S. at 729, 117 S.Ct. 1659. The Compact, as amended, requires that the Regional Plan include a...