Tahoe-Sierra Preserv. V. Tahoe Regional Planning

• Decision Date: 28 January 1998
• Docket Number: No. CV-N-84-257-ECR.,CV-N-84-257-ECR.
• Citation: 992 F.Supp. 1218
• Parties: TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al., Plaintiffs, v. TAHOE REGIONAL PLANNING AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Nevada

992 F.Supp. 1218

TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al., Plaintiffs, v. TAHOE REGIONAL PLANNING AGENCY, et al., Defendants.

No. CV-N-84-257-ECR.

United States District Court, D. Nevada.

January 28, 1998.

Lawrence L. Hoffman, Law Offices of Lawrence L. Hoffman, Tahoe City, CA, for Plaintiffs.

Rachelle J. Nicolle, Susan E. Scholley, Tahoe Regional Planning Agency, Zephyr Cove, NV, J. Thomas Susich, Vicki E. Hartigan, Crowell, Susich, Owen & Tackes, Ltd., Carson City, NV, for Tahoe Regional Planning Agncy.

William Frey, Deputy Attorney General, Carson City, NV, for State of Nevada.

Mary J. Schoonover, Richard M. Frank, California Department of Justice, Sacramento, CA, for State of California.

ORDER

EDWARD C. REED, JR., District Judge.

Currently before the Court are five motions filed by the defendants under cover of one document (# 250), filed on August 15, 1997. Plaintiffs filed a response to these motions (# 251) on October 6, 1997, to which defendants filed a reply (# 252) on October 30, 1997. Each of these five motions will be dealt with in separate orders. The subject of the instant order is Motion No. 3, which for the reasons set forth below is hereby GRANTED.

MOTION NO. 3

Motion No. 3¹ is for an order dismissing "all plaintiffs' claims which challenge the 1987 Regional Plan." Defs.' Mem. of P. & A. in Supp. of Mot. Dismissing All Claims as to 1987 Reg'l Plan (Mot.# 3) at 1. The basis for this motion is that these claims are all barred by the statute of limitations. Given the Ninth Circuit's statement, in its most recent decision in this case, that "[n]o part of TSPC's § 1983 claim is time-barred," Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 34 F.3d 753, 756, amended by 42 F.3d 1306 (9th Cir.1994) ("TSPC III"), the defendants' motion would appear to be doomed.

However, the defendants argue that this part of the Ninth Circuit's holding in TSPC III is "clearly erroneous and would work a manifest injustice," and is thus not binding under the law of the case doctrine. Defs.' Mem. of P. & A. in Supp. of Mot. Dismissing All Claims as to 1987 Reg'l Plan (Mot.# 3) at 5. Given the long and complicated history of this case, it would not be at all surprising if a mistake — even a "clearly erroneous" one — had been made somewhere along the way. Since justice demands that, to the extent possible, we correct such mistakes, we are required to examine the defendants' claim to determine if a "clearly erroneous" mistake has in fact been made.

The plaintiffs, naturally, emphasize heavily in their response to this motion the Ninth Circuit's holding that "[n]o part of TSPC's § 1983 claims is time-barred." Pls.' Resp. to Mot. No. 3 at 22, citing TSPC III at 756. They characterize the dispute over which statute of limitations applied to their § 1983 challenges as a "hotly-debated issue" until it was resolved by the Ninth Circuit in TSPC III. See Pls.' Resp. to Mot. No. 3 at 23. No doubt this is true, although it should be noted that the issue was never debated at all (hotly or otherwise) before this Court — it was apparently raised for the first time in the opening brief that the plaintiffs filed with the Ninth Circuit in 1993, in appealing our 1992 decision to dismiss the First Amended Complaints. See Opening Br. of Appellants, No. 93-15113 & No. 93-15114, at 28-33 (dated Apr. 26, 1993), attached as Ex. D to Defs.' Reply Mem. in Supp. of Five Pretrial Mots. (doc. # 252) [hereinafter Pls.' 1993 Opening Br.]. However, it is certainly true that the issue's import extends beyond this case — the Tahoe Regional Planning Agency ("TRPA") has faced, and no doubt will continue to face, numerous other challenges to its regulations and ordinances.

The plaintiffs state that the Ninth Circuit's resolution of the issue "is, of course, controlling law in this case, and it is simply not susceptible to being set aside by this Court, even if it should not agree with that holding." Pls.' Resp. to Mot. No. 3 at 23. However, it is not the Ninth Circuit's ruling on the issue of which statute of limitations should be applied to TSPC's § 1983 challenges² that the defendants claim is wrong. Rather, it is the Ninth Circuit's holding that the defendants waived their ability to raise the correct statute of limitations.

If the defendants are correct, and they have not waived this defense, then the plaintiffs' attempt to state a cause of action against the 1987 Regional Plan in their amended complaints is as time-barred by the correct statute of limitations as we previously held it to be by the sixty-day statute of limitations provided in the Compact. See Tahoe Sierra Preservation Council, Inc., 808 F.Supp. at 1482-83; Tahoe Sierra Preservation Council, Inc., 808 F.Supp. at 1491. Over four years had passed between July 1, 1987, the effective date of the 1987 Plan, and October 28, 1991, the date on which the plaintiffs filed the earlier of their two amended complaints. Since the plaintiffs' claims are facial challenges, the effective date of the Plan is when their cause of action accrued and the statute of limitations began to run. TSPC III, 34 F.3d at 755 see also Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.1993). Thus, since the statute of limitations for § 1983 claims is one year in California, Levald, 998 F.2d at 688, and two years in Nevada, Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.1989),³ it is indisputable that the plaintiffs did not bring their claims against the 1987 Plan within what is now clear is the appropriate statute of limitations period. Unless the defendants have in fact waived their ability to raise the correct statute of limitations as a defense, therefore, all of the plaintiffs' claims against the 1987 Plan will be time-barred.⁴

The key issue of whether the defendants waived their ability to raise the correct statute of limitations as a defense was not raised before this Court prior to the instant motion. This was undoubtedly due to the fact that, in arguing over the defendants' motions to dismiss the First Amended Complaints, the only statute of limitations ever proposed was the sixty-day one. The arguments centered around whether any of the plaintiffs' claims were barred by that statute of limitations, not whether another statute of limitations would be more appropriate. See, e.g., Defs.' Mem. of P. & A. in Supp. of Def. Tahoe Reg'l Planning Agency's Mot. to Dismiss Pls.' First Am. Compls. (filed May 27, 1992) (doc. # 141); Pls.' Mem. of P. & A. in Opp'n to All Defs.' Mots. to Dismiss and Related Mots. (filed Aug. 18, 1992) (doc. # 155).

It appears that the plaintiffs did raise the question of whether another limitations period would be more appropriate, but they did not do so until they filed their opening brief with the Ninth Circuit in their appeal of our 1992 decisions. See Pls.' 1993 Opening Br. at 28-33. But the waiver issue, at least as it is before us now, does not appear to have been raised by the parties at all, even on appeal. Of course, our record of what transpired on appeal is incomplete — we have only been provided with some of the briefs filed by the parties, and we do not have the transcript of oral arguments before the Circuit. But what we do have suggests that, while the word "waiver" does appear in the plaintiffs' briefs, they were using it in a different sense, and not at all with respect to the defendants' argument that the 1987 Plan claims were time-barred. See, e.g., Plaintiffs' 1993 Opening Brief at 27-28.

One of the plaintiffs' arguments was that, since the defendants had failed to "cross-appeal" the time-bar issue in either of the two earlier appeals, they had somehow waived those defenses. Id. However, neither district court had ruled that the sixty-day Compact statute of limitations was inapplicable to § 1983 actions, so failing to "cross-appeal" that issue would not appear to constitute a waiver of any sort. In addition, the plaintiffs argued that the earlier Ninth Circuit decisions had conclusively resolved the time-bar issue in their favor, thus preventing the defendants from raising it again in TSPC III. Id. However, the idea that either TSPC I or TSPC II resolved the time-bar issue is ludicrous. Both opinions specifically state that they "express no view" on the issue. TSPC I, 911 F.2d at 1342 n. 11 ("We express no view on any of the possible statute of limitations issues that might be raised."); TSPC II, 938 F.2d at 158 ("We express no view on the time-bar issue ...."). Even if either of these arguments had any validity in regard to the Ordinance 81-5 or Resolution 83-21 claims, however, they have no impact on the 1987 Plan claims at issue here. No claims against the 1987 Plan were raised by the plaintiffs until they filed their First Amended Complaints, after both TSPC I and TSPC II had been decided — so nothing that had or had not been argued in those appeals would prevent the defendants from raising any defenses to the newly filed 1987 Plan claims.

However, even though the parties had not addressed the issue of whether the defendants had waived any defenses to the 1987 Plan claims, the Ninth Circuit held that the defendants had waived their right to raise any statute of limitations but the sixty-day Compact one as a defense. The Circuit's holding on this point consists of only three sentences: "The defendants did not plead any other statute of limitations except the 60-day one. Failing to plead affirmatively any other statute of limitations, they cannot now rely on any other. No part of TSPC's § 1983 claim is time-barred." TSPC III, 34 F.3d at 756. It is this limited part of the Ninth Circuit's holding in TSPC III that the defendants claim should not be treated as law of the case.⁵

"Under the `law of the case' doctrine, `a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.'" U.S. v. Alexander, 106 F.3d 874, 876 (9th...