State ex rel. List v. Douglas County, 7683

• Decision Date: 22 July 1974
• Docket Number: No. 7683,7683
• Citation: 90 Nev. 272,524 P.2d 1271
• Parties: The STATE of Nevada ex rel. Robert LIST, Attorney General of the State of Nevada, Petitioner, v. The COUNTY OF DOUGLAS, a political subdivision of the State of Nevada, et al., Respondents.
• Court: Nevada Supreme Court

Page 1271

524 P.2d 1271

90 Nev. 272

The STATE of Nevada ex rel. Robert LIST, Attorney General of

the State of Nevada, Petitioner, v. The COUNTY OF DOUGLAS, a political subdivision of the State

of Nevada, et al., Respondents.

No. 7683.

Supreme Court of Nevada.

July 22, 1974.

Robert List, Atty. Gen., and James H. Thompson, Deputy Atty. Gen., Carson City, for petitioner.

Breen, Young, Whitehead & Hoy, Reno, Howard McKibben, Dist. Atty., Minden, Theodore H. Stokes, Carson City, for respondents.

OPINION

THOMPSON, Chief Justice:

This original proceeding, commenced by the Attorney General on behalf of the people of the State of Nevada, seeks a writ of mandate to compel Douglas County to pay its apportioned share of expenses to the Tahoe Regional Planning Agency in order that the Agency may be assisted in carrying out its purposes and activities.

The States of Nevada and California entered into the Tahoe Regional Planning Compact which the Congress of the United States has approved. 83 Stats. 360. The findings and declarations of policy are specified in Article 1 of the Compact (NRS 277.200) in the following words:

'(a) It is found and declared that the waters of Lake Tahoe and other resources of the Lake Tahoe region are threatened with deterioration or degeneration, which may endanger the natural beauty and economic productivity of the region.

'(b) It is further declared that by virtue of the special conditions and circumstances of the natural ecology, developmental pattern, population distribution and human needs in the Lake Tahoe region, the region is experiencing problems of resource use and deficiencies of environmental control.

'(c) It is further found and declared that there is a need to maintain an equilibrium between the region's natural endowment and its man-made environment, to preserve the scenic beauty and recreational opportunities of the region, and it is recognized that for the purpose of enhancing the efficiency and governmental effectiveness of the region, it is imperative that there be established an areawide planning agency with power to adopt and enforce a regional plan of resource conservation and orderly development, to exercise effective environmental controls and to perform other essential functions, as enumerated in this title.'

As noted in paragraph (c) just quoted, it was, by the two states and Congress, deemed imperative to establish an areawide planning agency with the power to adopt and enforce a regional plan of resource conservation and orderly development, to exercise effective environmental controls and to perform other essential functions. Accordingly, the Compact established the Tahoe Regional Planning Agency, specified its membership, delineated its powers, and provided a method by which the activities of the Agency were to be financed. See Articles III, IV, VI and VII of the Compact.

With regard to financing the activities of the Agency, the Compact provides that 'on or before December 30 of each calendar year the Agency shall establish the amount of money necessary to support its activities for the next succeeding fiscal year commencing July 1 of the following year. The agency shall apportion not more than $150,000 of this amount among the counties within the region on the same ratio to the total sum required as the full cash valuation of taxable property within the region in each county bears to the total full cash valuation of taxable property within the region. Each county in California shall pay the sum allotted to it by the Agency from any funds available therefor and may levy a tax on any taxable property within its boundaries sufficient to pay the amount so allocated to it. Each county in Nevada shall pay such sum from its general fund or from any other moneys available therefor . . .. The Agency shall then allot such amount among the several counties . . . and each county shall pay such amount.'

With respect to Douglas County, the amount apportioned to it by the Agency for the 1973-74 fiscal year is 15.55 percent of $150,000 or the sum of $23,325, of which amount the County has refused to pay $11,662.50. Hence, this proceeding to compel payment. The County challenges the constitutionality of the Compact on several grounds, thereby seeking to justify its refusal to contribute its proportionate share to the Agency. Before reaching the constitutional challenges, however, we first must resolve the County's attack upon the authority of the State through the Attorney General to bring this proceeding, and the propriety of mandamus.

1. The attorney general is a constitutional officer in the executive branch of our government and shall perform such duties as may be prescribed by law. Nev.Const. art. 5, § 19. The Constitution does not itself define those duties. Consequently, they are to be found only in legislative enactment. Ryan v. District Court, 88 Nev. 638, 642, 503 P.2d 842 (1972).

a. The main contention of Douglas County is that the legislature has not granted authority to the attorney general to commence a civil proceeding in the supreme court, but rather, has limited his authority to commence such a proceeding to the district and justice's courts. This contention rests upon the wording of NRS 228.170. ¹ Subsection 1 of the statute expressly grants authority to commence suit in 'any court.' That authority is not diminished or limited by the permissive language of subsection 2 mentioning the district and justice's courts. The highest legal officer of this state has access to and may invoke the original jurisdiction of the state's highest court.

b. Subordinately, Douglas County argues that since the Tahoe Regional Planning Agency is, by the Compact, established as a separate legal entity (Art. III) with the power to bring an action in court (Art. VI(e)), that Agency, rather than the state, is the real party in interest. ² Although the Agency itself may have instituted this proceeding, it does not follow that the state is without standing to do so. The interest of the state is manifest. It is a party to the interstate Compact with California and definitely concerned with making certain that its obligations thereunder are honored. As noted by the California Supreme Court, 'the state, as a party to the interstate Compact, and as an entity which contributes funds to the Agency, has an important interest in securing the success of the Agency.' People ex rel. Younger v. County of El Dorado, 96 Cal.Rptr. 553, 559, 487 P.2d 1193, 1199 (Cal.1971).

Accordingly, we hold that the Attorney General on behalf of the people of the State of Nevada, is authorized to institute this proceeding.

2. The decision as to whether an application for a writ of mandate will be entertained lies within the discretion of the court. ³ Usually, this court prefers that such an application be addressed to the discretion of the appropriate district court, since that court also is invested with the power of mandamus. Nev.Const. art. 6, § 6; NRS 34.160. However, since the counties of Washoe, Carson City (Ormsby), and Douglas border the Nevada side of Lake Tahoe, and since the district courts serving those counties may possibly have different views about the issue here tendered, we chose to entertain this application rather than to direct its filing in a district court. Moreover, since this application concerns the integrity of the Tahoe Regional Planning Compact, a matter of grave public concern, we thought it wise to entertain it and avoid the delay which a different course would entail. And, of course, it is established that the mere existence of other possible remedies does not necessarily preclude mandamus. Armstrong v. State Bd. Examiners, 78 Nev. 495, 498, 376 P.2d 492 (1962).

One function of a writ of mandate is to compel the performance of an act which the law especially enjoins as a duty resulting from an office. NRS 34.160. The Compact provides that each county in Nevada 'shall pay' the sum allotted to it by the Agency. Art. VII(a). No discretion is granted to the counties. Payment, therefore, is a duty enjoined by law and amenable to the remedy of mandamus.

3. Several challenges premised upon certain provisions of our Nevada Constitution are tendered. Additionally, the County contends that the Interstate Compact violates the Due Process and Equal Protection Clauses of the Federal Constitution. Finally, it is asserted that there is an unlawful delegation of legislative power to the Tahoe Regional Planning Agency.

The power of Nevada and California, with the consent of Congress, to enter into the Interstate Compact is not questioned. U.S.Const. art. 1, § 10. The Nevada legislative determination that it was expedient and advisable to so contract with California in order to preserve the integrity of the Lake Tahoe Basin as a natural resource was properly within its province to make. Marlette Lake Co. v. Sawyer, 79 Nev. 334, 338, 383 P.2d 369 (1963).

Since the Basin lies within two states, the concept of the Compact is regional in character. Its purpose is to protect and preserve the entire Basin for the benefit, use and enjoyment of present and future generations. This purpose is to be achieved through the auspices of the Tahoe Regional Planning Agency. That Agency is to 'provide for the region as a whole the planning, conservation and resource development essential to accommodate a growing population within the region's relatively small area without destroying the environment.' People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 96 Cal.Rptr. 553, 556, 487 P.2d 1193, 1196 (1971).

Our Constitution explicitly recognizes the importance of protecting and preserving the natural resources of this state. Nev.Const. art. 9, § 3. The second paragraph of that article and section enables the legislature, without regard to the debt ceiling established by the first paragraph thereof, to enter into a Compact with another state for the purpose of protecting and preserving...