Nominee Roberts helped TRPA win its greatest court battle | TahoeDailyTribune.com
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Nominee Roberts helped TRPA win its greatest court battle

Amanda Fehd
The Associated Press / President Bush, right, and his nominee for the Supreme Court, John G. Roberts Jr., walk together after meeting at the White House Wednesday.
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In fall of 2001, the former lead attorney for the agency that governs planning and environmental policy at Lake Tahoe had breakfast with high-powered Washington, D.C., attorney John Roberts.

John Marshall scrutinized the man who President Bush on Tuesday nominated for the U.S. Supreme Court. He was looking for someone with the skills and experience to argue on behalf of the Tahoe Regional Planning Agency before the high court.

The agency had been sued by 400 lakefront landowners, who argued a temporary development moratorium between 1981-1984 violated their property rights. The 18-year-old case had wound through the appeals courts and landed at the nation’s highest judicial body.

Marshall was in the nation’s capital that fall interviewing a half-dozen seasoned Supreme Court litigators. He wanted someone who could communicate to the court that the TRPA was reasonable in its moratorium.

By the end of breakfast, Marshall knew he had his guy.

“He just struck me,” Marshall told the Tahoe Daily Tribune on Wednesday. “He was a reasonable human being who was very approachable.”

Roberts, 50, has 38 Supreme Court appearances under his belt.

In four months, Roberts became familiar with the mission of TRPA, its complicated regulations, and the nuances of the litigation before him.

In January 2002, Roberts battled it out before the justices – with help from Solicitor General Ted Olson – and won.

The case was one of the last he would participate in as a lawyer before becoming a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

The crux of it

The Fifth Amendment of the Constitution prohibits government from taking property without just compensation.

The Tahoe landowners argued any government moratorium could constitute a taking, regardless of how long it lasted. The landowners had to convince the court that by prohibiting them from developing their property, the TRPA essentially took it from them and owed them just compensation.

The agency hoped to present a more moderate position, saying each moratorium should be considered individually. The government may have to compensate property owners in a moratorium, but not in this case. The land under moratorium lay in Tahoe’s most environmentally sensitive area, which TRPA was charged with protecting.

Politics play

Once the battle landed in Washington, both sides began lobbying the Bush administration to get on board and take a side.

The fight could have boiled down to property rights versus government regulation, with a clear line drawn on where a conservative would rule.

With Roberts on board, that all changed.

Roberts was far from unknown in Washington. He had clerked for Chief Justice William Rehnquist and was up for nomination as a judge on the D.C. Circuit at the time the case came to him. He is also a member of the Federalist Society, an elite group of conservative lawyers.

“There was strife within the agency over whether (the administration) should participate, by coming in on our side,” Marshall said. “They decided to come in and actively support us. (Roberts) helped substantially in our efforts in that cause.”

The move meant they would have the advantage of Olson, who argued the 2004 election Florida recount case successfully before the Supreme Court on behalf of Bush. The new president soon after named Olson to the position of solicitor general, whose sole purpose is to act as the federal government’s advocate before the highest court.

Balance shifted

The administration’s stance surprised lawyers for the landowners, who had formed a group called the Tahoe-Sierra Preservation Council. Michael Berger, a lawyer with Manatt, Phelps & Phillips in Los Angeles, was hired to make their case in Washington. He had been before the high court twice before.

Berger expected the administration might go a different direction – despite a history of siding with the government in property rights cases – precisely because its top lawyers were Olson and former Attorney General John Ashcroft, both of whom had histories as property rights advocates.

“I was a little surprised to see Ted not only filing a brief but personally arguing the case when it came up for hearing,” said Berger on Wednesday from his Los Angeles office.

The move may have tipped the case in TRPA’s favor.

“It certainly didn’t help,” Berger said. “The administration in the person of the solicitor general is very influential in that court. From a political standpoint, it shouldn’t make a difference. From a practical standpoint, when the solicitor general weighs in, I think it does deliver a message.”

In the end, the landowners wooed the court’s most conservative justices, Rehnquist, and justices Clarence Thomas and Antonin Scalia. But they were not able to sway the moderate justices, Sandra Day O’Connor and Anthony Kennedy.

In what some hailed as a landmark ruling, and a victory for environmental protection duties of government, the court decided 6-3 in favor of TRPA on April 23, 2002.

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