TAHOE SIERRA PRESERVATION COUNCIL, INC., et al., Petitioners,

v.

TAHOE REGIONAL PLANNING AGENCY, et al., Respondents.

No. 00-1167.

United States Supreme Court Respondent's Brief.

November 14, 2001.

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

BRIEF FOR RESPONDENTS

John G. Roberts, Jr. Hogan & Hartson L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5810

E. Clement Shute, Jr [FN*] Fran M. Layton Ellison Folk Shute, Mihaly & Weinberger LLP 396 Hayes Street San Francisco, CA 94102 (415) 552-7272

John L. Marshall Tahoe Regional Planning Agency P.O. Box 1038 Zephyr Cove, NV 89448 (775) 588-4547

Richard J. Lazarus 600 New Jersey Avenue, N.W. Washington, D.C. 20001 (202) 662-9129 Counsel for Respondent Tahoe Regional Planning Agency

Additional counsel: Frankie Sue Del Papa Attorney General William J. Frey Deputy Attorney General Office of the Nevada Attorney General 100 North Carson Street Carson City, NV 89701 (775) 687-6532 Counsel for Respondent State of Nevada

Bill Lockyer Attorney General Richard M. Frank Chief Assistant Attorney General Matthew Rodkiquez Senior Assistant Attorney General Daniel L. Siegel Supervising Deputy Attorney General California Department of Justice 1300 I Street P.O. Box 944255 Sacramento, CA 94244 (916) 323-9259 Counsel for Respondent State of California

FN* Counsel of Record

*i QUESTION PRESENTED

Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?

*ii PARTIES TO THE PROCEEDINGS

Respondents are the Tahoe Regional Planning Agency ("TRPA"), a regional planning and regulatory agency established by interstate compact, see Pub. L. No. 91-148, 83 Stat. 360 (1969); Pub. L. No. 96-551, 94 Stat. 3233 (1980), and the States of California and Nevada. This brief is a joint brief filed on behalf of all respondents. "TRPA" is used herein to refer to all respondents, except that references to regulatory actions of TRPA refer only to that agency.

*iii TABLE OF CONTENTS

QUESTION PRESENTED ... i

PARTIES TO THE PROCEEDINGS ... ii

TABLE OF AUTHORITIES ... v

INTRODUCTION ... 1

STATEMENT OF THE CASE ... 4

SUMMARY OF ARGUMENT ... 15

ARGUMENT ... 17

I. THE MERE ENACTMENT OF A TEMPORARY MORATORIUM ON DEVELOPMENT IS NOT A PER SE TAKING ... 17

A. Except In The Extraordinary Case, Regulatory Takings Claims Are Resolved By Subjecting The Factual Circumstances Of Each Partitular Case To A Three-Factor Inquiry ... 18

B. Temporary Development Moratoria Neither Destroy All Economically Viable Use Of Property Nor Render Property Valueless, And Therefore Should Not Be Treated As Categorical Takings Under Lucas ... 27

*iv C. Contrary To Petitioners' Assertions, First English Does Not Hold That A Temporary Development Moratorium Is A Per Se Taking ... 36

D. Petitioners Themselves Betray Their Discomfort With The Categorical Rule They Urge Upon This Court ... 39

II. THE FACT-SPECIFIC INQUIRY SET FORTH IN PENN CENTRAL AND SUBSEQUENT SUPREME COURT PRECEDENTS PROVIDES THE APPROPRIATE TEST FOR EVALUATING TEMPORARY DEVELOPMENT MORATORIA ... 41

A. Lower Courts Have Traditionally Applied The Penn Central Factors To Assess Temporary Moratoria ... 42

B. Petitioners Cannot Pursue A Penn Central Takings Claim Before This Court ... 45

CONCLUSION ... 48

*v TABLE OF AUTHORITIES

Cases:

Agins v. Town of Tiburon, 447 U.S. 255 (1980) ... 33, 45

Andrus v. Allard, 444 U.S. 51 (1979) ... 31

Armstrong v. United States, 364 U.S. 40 (1960) ... 19, 43

Blocky v. Hirsh, 256 U.S. 135 (1921) ... 27

California v. TRPA, 766 F.2d 1308 (9th Cir. 1985) ... 9, 10

City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) ... 25

City of Newark v. Township of Hardyston, 667 A.2d 193 (N.J. Super. Ct. App. Div. 1995), certification denied, 673 A.2d 277 (N.J. 1996) ... 28, 44

Concrete Pipe & Prods. v. Construction Laborers Pension Trust, 508 U.S. 602 (1993) ... 32

Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th Cir. 1996), cert. denied, 522 U.S. 981 (1997) ... 36

Danforth v. United States, 308 U.S. 271 (1939) ... 33

Downham v. City Council, 58 F.2d 784 (E.D. Va. 1932) ... 23

Eastern Minerals Int'l, Inc. v. United States, 36 Fed. Cl. 541 (1996) ... 36, 44

First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) ... passim

*vi First English Evangelical Lutheran Church v. County of Los Angeles, 258 Cal. Rptr. 893 (Ct. App. 1989), cert. denied, 493 U.S. 1056 (1990) ... 38

Florida Rock Indus. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 513 U.S. 1109 (1995) ... 30

Growth Props., Inc. v. Klingbeil Holding Co., 419 F. Supp. 212 (D. Md. 1976) ... 29

Heller v. Doe, 509 U.S. 312 (1993) ... 47

Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991) ... 24, 25

Juliano v. Montgomery-Ostego-Schoharie Solid Waste Mgmt. Auth., 983 F. Supp. 319 (N.D.N.Y. 1997) ... 25

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ... 24

Kelly v. TRPA, 855 P.2d 1027 (Nev. 1993), cert. denied, 510 U.S. 1041 (1994) ... passim

Keshbro, Inc. v. City of Miami, ___ So.2d ___, 2001 WL 776555 (Fla. July 12, 2001) ... 36

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987) ... 30, 31

Lomarch Corp. v. Mayor of Englewood, 237A.2d 881 (N.J. 1968) ... 36

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) ... passim

*vii Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) ... passim

Miller v. Board of Public Works, 234 P. 381 (Cal. 1925), appeal dismissed, 273 U.S. 781 (1927) ... 23

Mock v. Department of Envtl. Res., 623 A.2d 940 (Pa. Commw. Ct. 1993), aff'd, 667 A.2d 212 (Pa. 1995), cert. denied, 517 U.S. 1216 (1996) ... 30

NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998) ... 47

Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001) ... passim

Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) ... passim

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) ... 19, 20, 26

People ex rel. Younger v. County of El Dorado, 487 P.2d 1193 (Cal. 1971) ... 5, 6

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) ... 47

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) ... 24

Q.C. Const. Co. v. Gallo, 649 F. Supp. 1331 (D.R.I. 1986), aff'd, 836 F.2d 1340 (1st Cir. 1987) ... 42

San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981) ... 20, 37

*viii Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478 (D.N.M. 1995) ... 35

Schiavone Constr. Co. v. Hackensack Meadowlands Dev. Comm'n, 486 A.2d 330 (N.J. 1985) ... 36, 43

Steel v. Cape Corp., 677 A.2d 634 (Md. Ct. Spec. App. 1996) ... 36

Stern v. Halligan, 158 F.3d 729 (3d Cir. 1998) ... 30

Suitum v. TRPA, 520 U.S. 725 (1997) ... 2, 11, 30

Tahoe-Sierra Pres. Council v. State Water Res. Control Bd., 259 Cal. Kptr. 132 (Ct. App. 1989) ... 6

Tocco v. New Jersey Council on Affordable Housing, 576 A.2d 328 (N.J. Super. Ct. App. Div. 1990), certification denied, 585 A.2d 401 (N.J.), cert. denied, 499 U.S. 937 (1991) ... 35, 36

TSPC v. TRPA, 34 F.3d 753 (9th Cir. 1994), cert. denied, 514 U.S. 1036 (1995) ... 11

TSPC v. TRPA, 638 F. Supp. 126 (D. Nev. 1986), aff'd in part and rev'd in part, TSPC v. TRPA, 911 F.2d 1331 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991) ... 10

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) ... 27, 33, 45

United States v. United Foods, Inc., 121 S. Ct. 2334 (2001) ... 40

*ix Williams v. City of Central, 907 P.2d 701 (Colo. Ct. App. 1995) 23, 35, 44

Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (Minn. Ct. App.1992), cert. denied, 508 U.S. 960 (1993) ... 29, 35

Yee v. City of Escondido, 503 U.S. 519 (1992) ... 22

Zealy v. City of Waukesha, 548 N.W.2d 528 (Wis. 1996) ... 30

Zilber v. Town of Moraga, 692 F. Supp. 1195 (N.D. Cal. 1988) ... 35

Constitution:

U.S. Const. amend. V passim

Statutory Provisions:

Pub. L. No. 91-148, 83 Stat. 360 (1969) ... 7

Pub. L. No. 96-551, 94 Stat. 3233 (1980) ... 8

Legislative Material:

S. Rep. No. 91-510 (1969) ... 5

Other Authorities:

The Appraisal of Real Estate (Am. Inst. Real Estate Appraisers, 7th ed. 1978) ... 28

John Ayer, Water Quality Control at Lake Tahoe: Dissertation on Grasshopper Soup, 1 Ecology L.Q. 3 (1971) ... 7

*x Leslie K. Beckhart, Note, No Intrinsic Value: The Failure Of Traditional Real Estate Appraisal Methods To Value Income-Producing Property, 66 S. Cal. L. Rev. 2251 (1993) ... 28

1 E. Coke, Institutes, ch. 1, § 1 (1st Am. ed. 1812) ... 29

Effect Of Moratorium, 51A Fla. Jurisprudence 2d Tax'n § 1168 (1999) ... 28

Robert H. Freilich, Interim Development Controls: Essential Tools for Implementing Flexible Planning & Zoning, 49 J. Urban L.65 (1971) ... 23, 42

John C. Fremont, Memoirs of My Life (1886) ... 5

Elizabeth Garvin & Martin Leitner, Drafting Interim Development Ordinances: Creating Time to Plan, Land Use L. Zoning Dig. (June 1996) 42, 43

Julian C. Juerensmeyer & Thomas E. Roberts, Land Use Planning and Control Law (1988) ... 23

Carl R. Payten & Cameron W. Wolfe, Jr., Lake Tahoe: The Future of a National Asset, 52 Cal. L. Rev. 563 (1964) ... 4

Douglas H. Strong, Tahoe: An Environmental History (1984) ... 4, 6, 8

Mark Twain, Roughing It (1872) ... 5

Mark Twain, The Innocents Abroad (1869) ... 5

*1 INTRODUCTION

Because petitioners and their amici take such liberties with it, we begin by quoting the Question Presented: "Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?" 121 S. Ct. 2589 (2001). This question-- formulated by the Court--limits review to the holding below concerning the temporary moratorium, in effect from August 1981 until April 1984. See Pet. App. 40. It does not encompass the other holdings below that petitioners*2 sought to challenge, including those concerning the effect of the land use plans adopted in 1984 and 1987. In particular, the Question Presented presupposes that the case does in fact present the question of the constitutional implications of a temporary moratorium.

Yet much of what petitioners and their amici have to say explicitly (Pet. Br. 13) and implicitly fights the Question Presented. Thus, they repeatedly argue that what is at issue here is not a temporary moratorium at all, but a permanent ban on development--because of the effect of the 1984 and 1987 plans. See Pet. Br. 1, 2, 5, 7, 24. Petitioners assume that the 1984 and 1987 plans unconstitutionally deprived them of all use of their property and rendered that property valueless, see id. at 6-7, but that claim was rejected by both courts below on, respectively, causation and statute of limitations grounds, see Pet. App. 47, 56, and was not included in the Question Presented framed by this Court. Indeed, due to the statute of limitations bar, the record is devoid of any evidence regarding the 1987 Plan--and petitioners themselves made sure that evidence regarding the impacts of that plan was excluded from trial.

The only holding that is before this Court was clearly stated by the court of appeals: "Because the temporary development moratorium enacted by TRPA did not deprive the plaintiffs of all of the value or use of their property, we hold that it did not effect a categorical taking." Pet. App. 40 (footnote omitted). The holding was phrased in those terms because of two decisions petitioners made in bringing their takings claim: First, petitioners made "a calculated choice" to mount only a facial challenge to the temporary moratorium. Id. at 90; see id. at 19; J.A. 80. Such challenges "face an uphill battle" because the challenger must show that the "mere enactment" of the ordinance constitutes a taking. Suitum v. TRPA, 520 U.S. 725, 736 n.10 (1997).

*3 Second, petitioners chose to base their facial takings claim on the sole ground that the temporary moratorium effected a per se taking under Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992), by denying "all economically beneficial or productive use of land." See Pet. App. 18. They expressly eschewed any claim under the more generally applicable test set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), and accordingly declined to submit evidence concerning "specific factual situations" of the sort pertinent in applying the fact-intensive Penn Central analysis. See J.A. 80. As the court below explained, "the plaintiffs have stated explicitly on this appeal that they do not argue that the regulations constitute a taking under the ad hoc balancing approach described in Penn Central." Pet. App. 19.

In short, the claim that the Ninth Circuit addressed--and the only claim properly before this Court is that the mere enactment of any temporary moratorium, by denying the right to develop property for any length of time, always constitutes a taking for which compensation is required. That remains petitioners' position before this Court. See Pet. Br. 17 ("a freeze on use *** is a taking for the duration of the freeze"); id. at 47 ("a moratorium that precludes, for whatever period of time the regulators wish, all economically productive use of land is a per se, or categorical, taking"). In particular, according to petitioners, the "temporary" aspect of the moratorium--the predicate to the Question Presented--is "beside the point" as a matter of law. Id. at 15. Petitioners' position has at least the benefit of clarity: a temporary moratorium on development, no matter how brief in duration, no matter how pressing the need for it, and no matter how insignificant its impact--if any--on the value of affected property, must be treated the same as a permanent ban on development--always a per se taking for which compensation is required.

*4 What is more, petitioners' sole argument in support of this extreme position is that this Court has already adopted it--in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). As we explain below, First English did no such thing--the question whether a temporary moratorium constituted a taking was explicitly recognized by the Court as not being before it in that case. See id. at 313. The Court should be taken at its word.

While petitioners argue that the mere enactment of any temporary development moratorium is a per se taking for which compensation is always required, our position is that whether a particular temporary moratorium gives rise to a taking should be assessed, like most takings claims, under the traditional Penn Central factors. Because petitioners made a tactical decision in this case to waive any challenge to the moratorium under those factors, the judgment below should be affirmed.

STATEMENT OF THE CASE

1. Lake Tahoe and the Tahoe Regional Planning Agency. Lake Tahoe is an exceptionally pure and beautiful natural resource, the crown jewel of the Sierra Nevada mountain range. It is the largest alpine lake in the world based on all its dimensions, including a remarkable average depth of 1,027 feet and a maximum depth of 1,645 feet. At 6,229 feet above sea level the Lake stretches over 192 square miles, ringed by snow-capped peaks that soar thousands of feet higher. It contains enough water to flood the State of California to a depth of 14 inches. [FN1]

FN1. Carl R. Payten & Cameron W. Wolfe, Jr., Lake Tahoe: The Future of a National Asset, 52 Cal. L. Rev. 563, 564 (1964); Douglas H. Strong, Tahoe: An Environmental History xiii (1984).

But such dry statistics do not tell the story. From the first recorded sighting of Lake Tahoe by John C. Fremont on February 14, 1844, visitors have been struck by its remarkable *5 beauty. John C. Fremont, I Memoirs of My Life 336 (1886). Mark Twain described the Lake as "a noble sheet of blue water lifted six thousand three hundred feet above the level of the sea ***. [W]ith the shadows of the mountains brilliantly photographed upon its still surface *** it must be the fairest picture the whole earth affords." Mark Twain, Roughing It 169 (1872), quoted in Pet. App. 60. The Supreme Court of Nevada proclaimed the lake "a national treasure," Kelly v. TRPA, 855 P.2d 1027, 1034 (1993), cert. denied, 510 U.S. 1041 (1994), while the California Supreme Court described the Lake Tahoe Basin as "an area of unique and unsurpassed beauty." People ex tel. Younger v. County of El Dorado, 487 P.2d 1193, 1194 (1971). In adopting the 1980 Tahoe Regional Planning Compact, the California and Nevada legislatures found that "[t]he region exhibits unique environmental and ecological values which are irreplaceable." J.A. 83; see also S. Rep. No. 91-510, at 3-4 (1969) (Lake Tahoe is "famed for its scenic beauty and pristine clarity. *** Only two other sizable lakes in the world are of comparable quality--Crater Lake in Oregon, which is protected as part of the Crater Lake National Park, and Lake Baikal in the Soviet Union.").

Much of the Lake's storied beauty can be traced to its pristine waters. Lake Tahoe is "oligotrophic," possessing extraordinarily clear and high quality waters because of very low concentrations of sediments, nutrients such as nitrogen and phosphorus, and other contaminants. Pet. App. 62. To quote Twain once again, "I have fished for trout in Tahoe, and at a measured depth of eighty-four feet I have seen them put their noses to the bait and I could see their gills open and shut. I could hardly have seen the trout themselves at that distance in the open air." Mark Twain, The Innocents Abroad 144-145 (1869). The result of this "amazing clarity" is water of "an unusually beautiful cobalt blue color." Pet. App. 61.

*6 Unfortunately, "the region's natural wealth contains the virus of its ultimate impoverishment." County of El Dorado, 487 P.2d at 1195. Popular with vacationers since the late 1800s, Lake Tahoe was catapulted into the national spotlight by the 1960 Winter Olympic Games, the first to be televised. Strong, supra, at 46. That prominence--and the addition of winter attractions to the already growing lure of summer activities--precipitated a dramatic rise in the number of subdivisions created to meet the ever-increasing demand for access to Lake Tahoe. Def. Ex. 86. This development boom led the California Supreme Court to warn as early as 1971 that "[t]oday, and for the foreseeable future, the ecology of Lake Tahoe stands in grave danger before a mounting wave of population and development." County of El Dorado, 487 P.2d at 1195; see generally id. at 1194-98.

The uncontrolled development in the Lake Tahoe Basin has caused an alarming increase in the levels of nutrients entering the Lake. Development entails covering terrain with impervious surfaces--buildings and asphalt where there had been meadow or field--with the inevitable consequence that run-off from rain or snow melt that previously would have entered the ground now flowed into the Lake. That run-off carries with it the sediment, nutrients, and contaminants that spur the growth of algae and cause eutrophicafion--a process which, if unabated, will cause levels of algae to continue to increase until the Lake's characteristic color turns "from clear blue to turbid brown." Tahoe-Sierra Pres. Council v. State Water Res. Control Bd., 259 Cal. Rptr. 132, 135 (Ct. App. 1989). See also Pet. App. 62 ("unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity").

A number of factors that make Lake Tahoe so extraordinary also make it uniquely vulnerable to this threat. The surrounding mountains enter the Lake at a dramatic slope, increasing the impact of run-off into the Lake and placing a premium on the limited opportunities for run-off to enter the *7 soil before reaching the Lake. Moreover, unlike most lakes, which can self-purify as fresh water flows in and contaminated water flows out, the amount of water entering and leaving Lake Tahoe is minuscule compared to the total volume of water in the Lake. If the Lake were drained, it would take approximately 650-700 years to be refilled-- compared to, for example, 2.6 years for Lake Erie. See John Ayer, Water Quality Control at Lake Tahoe: Dissertation on Grasshopper Soup, 1 Ecology L.Q. 3, 8 (1971); Pet. App. 63. Thus, if allowed to continue, the eutrophication of the Lake would be irremediable.

In addition to this unique environmental sensitivity, jurisdictional complications add to the challenge of protecting Lake Tahoe. Two States, five counties, a number of municipal governments, and the federal government all have jurisdiction over part of the Lake and the surrounding area. Pet. App. 65.

The first attempt to address environmental impacts to Lake Tahoe through coordinated land use planning came in 1969, when California and Nevada developed and Congress enacted the Tahoe Regional Planning Compact, which created TRPA. Pub. L. No. 91-148, 83 Stat. 360 (1969). In 1972, TRPA adopted, as the basis of its regulatory program, a land capability classification system for the development of property in the Basin. Pet. App. 66. This system classified areas into one of seven districts based on soil types, slope, and vegetation. Land capability districts 1, 2, and 3 are "high hazard" lands (steep, fragile lands), while districts 4 through 7 are "low hazard" lands (relatively flat, stable soils). Id. at 66-67. Stream environment zones (called SEZs) were also designated and placed in land capability district 1b. SEZs are areas near streams and similar features that naturally act as filters for much of the debris carried by run-off. Id. at 64, 67. This system established limits on the percentage of impervious surface or land coverage permitted in each of the seven land capability districts. Id. at 66-67.

*8 There were, however, numerous exceptions to these limits, most significantly for new residential construction, which was allowed even on high hazard lands and SEZs. Id. at 67, 90-91. Over 1,600 residential units were approved in 1978 alone. See J.A. 106. Not surprisingly, the corresponding deterioration in the Lake's health continued unabated. By 1980, water quality in the Lake was rapidly declining; the rate of algal growth had doubled over the last 20 years, Def. Ex. 211 at 7, and water clarity had decreased between 6-13 percent in the preceding 10 years. Strong, supra, at 186-187. The growing tension between development pressures and heightened concern over the fate of the Lake gave rise to "a race-to-develop," Pet. App. 28 n.15, as landowners rushed to develop their property before the imposition of what were anticipated to be more stringent controls. See id. at 89 (referring to the "glut of construction in the years just before the Compact was amended in 1980").

2. The Regional Planning Process Instituted Under the 1980 Regional Compact. Dissatisfied with TRPA's ability to control land development under the 1969 Compact, California and Nevada acted to stem the alarming threat to the Lake by drafting amendments to the Compact, which Congress enacted in 1980. Pub. L. No. 96-551, 94 Stat. 3233 (1980) (reprinted at J.A. 83). Among its key provisions, the 1980 Compact required that TRPA, within 18 months, establish environmental threshold carrying capacities necessary to maintain the natural resources of the Basin. [FN2] The 1980 Compact also mandated that TRPA adopt, within one year following adoption of these thresholds, a new regional *9 plan that would ensure compliance with them. See J.A. 97, 98. Finding that "in order to make effective the regional plan as revised by the agency, it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan," the new Compact itself contained temporary restrictions on new subdivisions, limitations on new residential permits, limitations on new commercial development, and a prohibition on new apartments. Id. at 104-108.

FN2. The Compact defined an "environmental threshold carrying capacity" as

an environmental standard 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. Such standards shall include but not be limited to standards for air quality, water quality, soil conservation, vegetation preservation and noise. [J.A. 87.]

Because these restrictions did not differentiate according to the location of the proposed development, however, TRPA went on to target the primary cause of eutrophication of the Lake: development on high hazard lands and SEZs. Pet. App. 86, 90-91. Therefore, on June 25, 1981, TRPA adopted Ordinance 81-5, which temporarily prohibited most residential and all commercial construction on high hazard lands and SEZs "pending adoption of a revised regional plan under the Tahoe Regional Planning Compact, as amended." J.A. 159; see id. at 163-178. Following adoption of Ordinance 81-5, TRPA turned to the task of establishing the required environmental thresholds. After a complex scientific inquiry and significant public debate, these thresholds were adopted on August 26, 1982. Pet. App. 74.

TRPA then had one year to adopt a new regional plan. That period proved inadequate to hammer out the numerous issues presented by the new regional plan and implementing ordinances. As one court summed up TRPA's plight: "Suffice it to say that the extensive public involvement, the numerous Governing Board debates, deliberations, and deadlocks, and the extent of TRPA staff involvement made the process of mending the regional plan an exceedingly complex task." California v. TRPA, 766 F.2d 1308, 1311 (9th Cir. 1985). Thus, it became clear in August 1983--one year after adoption of the environmental thresholds-- that the new regional plan would not be completed by the deadline *10 mandated by the Compact. "Faced with an impossible deadline, and unsure whether it had the authority to approve any project in the region without the amended plan in place as contemplated by the 1980 Compact, TRPA therefore chose to temporarily suspend, for 90 days, further project approvals." Id. at 1311-12. It did so in Resolution 83-21. See Pet. App. 170. As debate continued over the new regional plan, Resolution 83-21 -- always intended to remain in effect until adoption of the regional plan, Pet. App. 33 n.19-- was extended on November 17, 1983. J.A. 130.

Together Ordinance 81-5 and Resolution 83-21 constitute the temporary moratorium on development adopted by TRPA until it could complete the process leading to the new regional plan mandated by the 1980 Compact. By its terms this moratorium was to expire upon adoption of that plan and, in fact, TRPA's adoption of the 1984 Plan on April 26, 1984 "superseded" the 32-month moratorium. Pet. App. 106. On May 1, however, a federal district court enjoined implementation of the 1984 Plan and later issued a preliminary injunction barring the issuance of any development permits in the Basin. Id. at 76. As a result, TRPA never adopted ordinances to implement the 1984 Plan. Id. at 106. [FN3]

FN3. Although it was never implemented, the 1984 Plan contained a number of provisions that permitted development on environmentally sensitive lands in the Basin. As found by the district court in an earlier summary judgment decision, "on the face of the Regional Plan, options do exist for development in the Lake Tahoe Basin." TSPC v. TRPA, 638 F. Supp. 126, 133 (D. Nev. 1986), aff'd in part and rev'd in part, TSPC v. TRPA, 911 F.2d 1331, 1339 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991). Indeed, one reason the 1984 Plan was enjoined was because of the extent of development it did permit on environmentally sensitive lands-- including of single family homes. See California v. TRPA, 766 F.2d at 1314-16.

Despite TRPA's vigorous defense of its 1984 Plan, both in the district court and before the court of appeals, the appellate court upheld the preliminary injunction. Pet. App. 76-*11 77. TRPA thereupon embarked upon a consensus process to develop a successor regional plan. After literally hundreds of public meetings, substantial environmental review, and considerable public debate, that consensus process culminated in the adoption of the 1987 Regional Plan. See Def. Exs. 87, 88.

The 1987 Plan established a "markedly different" approach for permitting development, focusing not on land capability classifications but instead on the development potential of each individual lot in the Basin. TSPC v. TRPA, 34 F.3d 753, 755 (9th Cir. 1994), cert. denied, 514 U.S. 1036 (1995). Under this individual parcel evaluation sy