Tahoe-Sierra Preserv. V. Tahoe Planning Agency

• Decision Date: 15 January 1999
• Docket Number: No. CV-N-84-257-ECR.,CV-N-84-257-ECR.
• Citation: 34 F.Supp.2d 1226
• 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

34 F.Supp.2d 1226

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 15, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

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

Daniel E. Lungren, Atty. Gen. of the State of Cal., Richard M. Frank, Asst. Atty. Gen., Daniel L. Siegel, Supervising Deputy Atty. Gen., Mary J. Scoonover, Deputy Atty. Gen., for Defendant State of Cal.

Frankie Sue Del Papa, Atty. Gen. of State of Nevada, William J. Frey, Deputy Atty. Gen., for Defendant State of Nevada.

Susan E. Scholley, E. Clement Shute, Jr., Ellison Folk, J. Thomas Susich, for Defendant Tahoe Regional Planning Agency.

FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER

EDWARD C. REED, Jr., District Judge.

On December 1, 1998, after fourteen and a half years of litigation, the first phase of the trial in this action finally began. The case involves approximately 449 plaintiffs who own property in the Lake Tahoe Basin. The lead plaintiff, Tahoe-Sierra Preservation Council, Inc. ("TSPC"), is an association of Tahoe area property owners. Each of the individual plaintiffs has alleged that several ordinances enacted in the early 1980s by the defendant, Tahoe Regional Planning Agency ("TRPA"),¹ effected takings of his or her property under the Fifth and Fourteenth Amendments to the United States Constitution. Given the complexity of the case, as well as the sweeping changes in the law of regulatory takings that have occurred in the past fifteen years, it is, while unfortunate, not surprising that the case has been pending for so long. The first ten years or so were spent largely in an effort to determine whether any of the claims in the case were justiciable at all.

Clearly, however, the effort expended in this case-by all the parties and by the courts-has not been wasted. The dispute here is not over something trivial or unimportant. For what is at stake, at least in part, is the survival of Lake Tahoe, one of the wonders of the natural world. Whatever the ultimate outcome of this case, the fate of the lake deserves serious attention and thought. That, it has unquestionably received. The very tenacity with which the property owners herein have pursued their claims supports the idea that the lake is worth fighting for. Were the Tahoe Basin not such a beautiful, desirable place to spend time, it is doubtful that the plaintiffs would have pursued their claims quite as vigorously, or in quite the same manner, as they have done over the years.

Unsurprisingly, a case pending for such a long period of time picks up something of a history along the way. Here, that history consists, in part, of three published Ninth Circuit opinions, at least five published district court opinions, and numerous unpublished district court orders. These orders and opinions have significantly narrowed and defined the scope of this case. Of course, many of these opinions also set forth versions of the facts, or some of the facts, involved in the case. We do not find it appropriate merely to refer to earlier statements of the facts, however, given that those statements were largely prepared in ruling on motions to dismiss or motions for summary judgment where certain assumptions are made that may not always find themselves borne out by the evidence produced at trial. We thus present a complete discussion of the facts herein; we base our findings on the evidence and testimony presented at trial, and the stipulations agreed to by the parties.

FINDINGS OF FACT

Lake Tahoe, the dominant presence in this litigation, is a remarkable alpine lake located in the northern Sierra Nevada mountains. The lake is almost indescribably beautiful. Nonetheless, many have tried to describe it-the most notable of whom (and certainly the most quoted, at least during this trial) is Mark Twain. Twain, while famous for his hyperbole, cannot be said to have exaggerated the beauty of Lake Tahoe, which he described as:

a noble sheet of blue water lifted six thousand three hundred feet above the level of the sea, and walled in by a rim of snow-clad mountain peaks that towered aloft full three thousand feet higher still! ... As it lay there with the shadows of the mountains brilliantly photographed upon its still surface I thought it must be the fairest picture the whole earth affords.

Mark Twain, Roughing It 169 (facsimile reprint of 1st ed., Hippocrene Books, n.d.) (1872). Further, the lake:

was glassy and clear, or rippled and breezy, or black and storm-tossed, according to Nature's mood; and its circling border of mountain domes, clothed with forests, scarred with land-slides, cloven by cañons and valleys, and helmeted with glittering snow, fitly framed and finished the noble picture. The eye was never so tired of gazing, day or night, in calm or storm; it suffered but one grief, and that was that it could not look always, but must close sometimes in sleep.

Id. at 173.

Others, too, have attempted to describe the beauty of the lake, including sources more commonly cited in judicial opinions than Mark Twain. These include the Supreme Courts of California and Nevada, and even the President and Vice President of the United States. In July of 1997, President Clinton and Vice President Gore both attended the "Lake Tahoe Presidential Forum" in Incline Village, Nevada, on the northeast shore of the lake. The President referred to Lake Tahoe as "one of the crown jewels, unique among them all. It's a national treasure that must be protected and preserved." Sean Whaley, Clinton Pledges Tahoe Aid, Las Vegas Rev.-J., July 27, 1997, at 1A. The Vice President stated that, "There is a peace associated with Lake Tahoe that is very, very special.... The beauty of this place is unique in all the world." Sean Whaley, Gore Vows to Protect Lake, Las Vegas Rev.-J., July 26, 1997, at 1A. The Nevada Supreme Court called the lake a "national treasure," Kelly v. Tahoe Reg'l Planning Agency, 109 Nev. 638, 855 P.2d 1027, 1034 (1993), and the California Supreme Court referred to the Basin as "an area of unique and unsurpassed beauty." People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1193, 1194 (Cal.1971). The plaintiffs, quite wisely, do not dispute the fact that Lake Tahoe is uniquely beautiful.

Ironically, the more Lake Tahoe comes to be appreciated for its beauty, the more that beauty is threatened. Part of what makes Tahoe so special is the amazing clarity of its water, which, as a result of its clarity, is an unusually beautiful cobalt blue color. Again, we revert to Mark Twain for a description. He described the clarity of Tahoe's water as follows:

So singularly clear was the water, that where it was only twenty or thirty feet deep the bottom was so perfectly distinct that the boat seemed floating in the air! Yes, where it was even eighty feet deep. Every little pebble was distinct, every speckled trout, every hand's-breadth of sand.... Down through the transparency of these great depths, the water was not merely transparent, but dazzlingly, brilliantly so. All objects seen through it had a bright, strong vividness, not only of outline, but of every minute detail, which they would not have had when seen simply through the same depth of atmosphere. So empty and airy did all the spaces seem below us, and so strong was the sense of floating high aloft in mid-nothingness, that we called these boat-excursions "balloon-voyages."

Twain, Roughing It 174-75 (emphasis in original); see also Mark Twain, Innocents Abroad 262-265 (Harper & Brothers 1911) (1869) (comparing Lake Tahoe to Italy's Lake Como). Most lakes lack anything approaching this clarity, usually because of the presence of algae growing in their depths. Algae requires a nutrient-rich environment in which to grow, and most lakes contain sufficient amounts of the requisite nutrients to feed considerable algal growth. Not so Lake Tahoe, however, which has historically been lacking in both nitrogen and phosphorous, two of the nutrients algae requires. A lake which is deficient in such plant nutrients, like Tahoe, is "oligotrophic."

Unfortunately, this is rapidly changing. The clarity of the lake has been decreasing by at least a foot a year. As algal growth in the lake increases, its clarity decreases. In other words, the lake undergoes what is termed "eutrophication." Eutrophication is the process of becoming more "eutrophic," which, at least as it relates to a lake, is defined as "rich in dissolved nutrients ...." Webster's Third New International Dictionary 786 (1976). Eventually, unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity. Or at least, for a very, very long time. Estimates are that, should the lake turn green, it could take over 700 years for it to return to its natural state, if that were ever possible at all.

The increase in algal growth, and the attendant loss in water clarity, is caused by an increase in the amounts of nitrogen and phosphorous reaching the lake. The evidence clearly shows that this increase in nutrient levels is caused by increased development in the Lake Tahoe Basin ("the Basin"). Dramatic decreases in clarity first began to be noted in the late 1950s/early 1960s, shortly after development at the lake began in earnest in the 1950s. Clarity has decreased steadily since then. Even today, increased algal growth is more noticeable in areas of the lake near larger concentrations of human habitation and development.

Increased development causes increased nutrient loading of the lake largely because of the increase in impervious coverage of land in the Basin resulting from that development. Impervious coverage-such as asphalt, concrete, buildings, and even packed dirt-prevents precipitation from being...