Tahoe v. Tahoe Reg'l Planning Agency

• Decision Date: 24 November 2010
• Docket Number: No. CIV. S-08-2828 LKK/GGH,CIV. S-08-2828 LKK/GGH
• Citation: 739 F.Supp.2d 1260
• Parties: LEAGUE TO SAVE LAKE TAHOE and Sierra Club, Plaintiffs, v. TAHOE REGIONAL PLANNING AGENCY, Defendant.
• Court: U.S. District Court — Eastern District of California

739 F.Supp.2d 1260

LEAGUE TO SAVE LAKE TAHOE and Sierra Club, Plaintiffs,

v.TAHOE REGIONAL PLANNING AGENCY, Defendant.

No. CIV. S-08-2828 LKK/GGH.

United States District Court, E.D. California.

Sept. 16, 2010.

Order Denying Motion to Alter Nov. 24, 2010.

Trent William Orr, Trent W. Orr, Wendy Sangbee Park, Earthjustice Legal DefenseFund Incorporated, Oakland, CA, for Plaintiffs.

Nicole Ursula Rinke, Tahoe Regional Planning Agency, Stateline, NV, Christine Ann Sproul, CA Dept. of Justice, Office of the Attorney General, Daniel Lawrence Siegel, Office of the California Attorney General, Sacramento, CA, for Defendant.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Development in the Lake Tahoe region is regulated by the Tahoe Regional Planning Agency ("TRPA"). TRPA amended its "shorezone" ordinances on October 22, 2008. Plaintiffs League to Save Lake Tahoe and the Sierra Club challenge these amendments, arguing that in adopting them TRPA violated the Tahoe Regional Planning Compact and the implementing Code of Ordinances.

Pending before the court are cross motions for summary judgment on liability. The California State Lands Commission has filed a brief supporting plaintiffs and the Shorezone Property Owners Association has filed a brief supporting TRPA. The court resolves the matters on the papers and after oral argument.

I. Background ¹

A. Lake Tahoe

For well over a century, writers have praised Lake Tahoe's beauty. See Tahoe-Sierra Pres. Council v. TRPA, 535 U.S. 302, 307, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (quoting Mark Twain, Roughing It 174-75 (1872)). For over forty years, government has struggled to preserve this treasure. Id. at 308, 122 S.Ct. 1465. With mixed optimism and pessimism, the court expects both the praise and the struggle to continue.

Lake Tahoe is an alpine lake located in the northern Sierra Nevada Mountains and spanning the California-Nevada border. The lake is famous for its exceptional clarity, "which depends largely on the amount of suspended fine sediments and, to a lesser degree, algal productivity." Administrative Record at Volume 7, page 4046 (hereinafter "AR Vol.:Page"). The amount and productivity of algae is in turn largely a function of the amount of nutrients in the water. Id. Beginning around the 1960s, human activity in the area beganincreasing the amount of nutrients and sediments in the lake, initiating what has been a steady decline in water clarity. Id., see also AR 11:7313. Although visibility previously extended to over 100 feet below the lake's surface, over 30% of this visibility has been lost. AR 7:4201, 4045, 11:7313.

Water clarity is not the only aspect of the lake to have suffered. The 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.

A major cause of these declines is development in the basin. Onshore development introduces nutrients and sediment by, among other things, eliminating wetlands and undisturbed lands that filter runoff and by increasing sewer line exfiltration and septic leachate. See also Tahoe-Sierra Pres. Council, 535 U.S. at 308, 122 S.Ct. 1465. Piers and other structures that enable boating also impact protected values, such as fish habitat and recreation. AR 6:4007, 7:4173. Separate from the effects of development, emissions from motorized watercraft harm air and water quality, including water clarity.

B. The Tahoe Regional Compact & TRPA's Regulation

Efforts to address these problems have been shaped by the fact that jurisdiction over the Lake Tahoe Basin is shared by the States of California and Nevada, five counties, several municipalities, and the United States Forest Service. Tahoe-Sierra Pres. Council, 535 U.S. at 308, 122 S.Ct. 1465. In 1968, the legislatures of the two States adopted the Tahoe Regional Planning Compact, which Congress approved in 1969. In 1980, the initial Compact was amended "to increase the level of environmental protection for the Basin as a whole." Tahoe-Sierra Pres. Council, Inc. v. TRPA, 322 F.3d 1064, 1071 (9th Cir.2003); see also 1980 Cal. Stat. ch. 872, p. 2710 § 2 (codified as amended at Cal. Gov't Code § 66801); 1980 Nev. Stat. 1 (codified at Nev. Rev. Stat. 277.200); Act of Dec. 19, 1980, Pub. L. No. 96-551, 94 Stat. 3233. The Compact is "federal law" for purposes of jurisdiction under 28 U.S.C. § 1331 and is interpreted pursuant to federal principles of statutory interpretation. League to Save Lake Tahoe v. TRPA, 507 F.2d 517, 525 (9th Cir.1974), Lake Tahoe Watercraft Rec. Ass'n v. TRPA, 24 F.Supp.2d 1062, 1068 (E.D.Cal.1998).

The 1980 Compact (hereinafter "Compact") directed TRPA to develop regional "environmental threshold carrying capacities" Compact art. I(b) and V(b). Environmental threshold carrying capacities ("thresholds") are environmental standards "necessary to maintain a significant scenic, recreational, educational, scientific or natural value of the region or to maintain public health and safety within the region" and "shall include but not be limited to standards for air quality, water quality, soil conservation, vegetation preservation and noise." Compact art. II(I). TRPA has adopted 36 separate threshold standards, including standards for water clarity and quality, air quality, noise levels, recreational access, and scenic quality. See, e.g., AR 29:19179-94 (TRPA Resolution 82-11, as amended) (adopting initial thresholds), AR 11:7207 (discussing thresholds presently in effect).

TRPA must regulate the region in order to achieve these thresholds "while providing opportunities for orderly growth and development consistent with such capacities." Compact art. I(b). One aspect of TRPA's regulation is promulgation of generally-applicable rules and plans. Most broadly, TRPA adopted a Regional Plan in 1987. This document is "a single enforceableplan" that includes many correlated elements relating to the regulation of the Basin, including "[a] conservation plan for the preservation, development, utilization, and management of the scenic and other natural resources within the basin." Compact art. V(c)(3). The Regional Plan is implemented by the Code of Ordinances and the Rules of Procedure promulgated by TRPA. See Comm. for Reasonable Regulation of Lake Tahoe v. TRPA, 311 F.Supp.2d 972, 979-80 (D.Nev.2004).

TRPA also regulates on a project-specific basis. Before approving any project, TRPA must ensure that the project will not interfere with implementation of the regional plan or cause the thresholds to be exceeded. Compact art. V(g). TRPA must also prepare an environmental impact statement ("EIS") for the project, similar to the reporting required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA") and the California Environmental Quality Act, Cal. Pub. Res. CodeE §§ 21000-21176 ("CEQA"). Compact art. VII(a)(2). A project cannot be approved unless either "changes or alterations" have reduced "the significant adverse environmental effects to a less than significant level" or the agency determines that mitigation is "infeasible." Compact art. VII(d)(1) and (2).

C. The 2008 Shorezone Amendments

On October 22, 2008, TRPA's governing board adopted the Shorezone Amendments. AR 1:1-3. These Amendments' provisions regarding piers, buoys, and other boating facilities form the core of this case.

Prior to the Amendments, a rule designed to protect fish habitat was the primary limit on construction of boating facilities. Approximately two thirds of the lakeshore was designated as "prime fish habitat," which included habitat needed for spawning, fish feed and cover, or within 200 feet of designated spawning streams. See AR 6:3860. In these areas new construction was prohibited and existing structures could only be modified when the modification would "decrease in the extent to which the structure does not comply with the development standards" and would improve attainment or maintenance of threshold standards. Id., AR 3:1884-88.

In the process leading up to the Amendments, TRPA concluded that the above prohibition went beyond what was necessary for fish protection, a conclusion plaintiffs do not challenge here. AR 2:734-62. The Amendments repealed the prohibition on construction in fish habitat, allowing new facilities to be constructed within certain other limits. Most notably, the amended ordinances place numeric caps on the number of boating facilities that can be placed on the lake. The Amendments allow an additional 128 private piers, 10 public piers, 1,862 new mooring buoys, 6 new boat ramps, and 235 boat slips to be constructed or placed within Lake Tahoe's Shorezone. TRPA Amended Code of Ordinances §§ 52.2.B, 52.4.B, 52.5 (hereinafter "Code"). In addition to these "new" facilities, the Amendments allow TRPA to issue permits for buoys that are already on the lake but that are unpermitted; TRPA may also authorize buoys to replace these unpermitted buoys if and when the unpermitted buoys are removed. Compared to the maximum potential build-out under the former rule, the Amendments increase the maximum for piers and buoys but reduce the cap on boat ramps and slips.²

The EIS recognizes that development of boating facilities could negatively impact air and water quality, recreational access, scenery, and noise. The Amendments adopt measures to mitigate these impacts, and the EIS concluded that these measures mitigate impacts to a "less than significant" level. AR 1:1, 78-80. TRPA concluded that as a result of this mitigation, the Amendments satisfy the obligation to maintain and achieve thresholds. AR 1:1, 22-23. Plaintiffs argue that both of these conclusions were arbitrary and capricious. Plaintiffs relatedly argue that the unmitigated impacts will violate the obligation to avoid degradation of the lake as an "Outstanding National Resource Water" under the Clean Water Act.

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