TRPA gets increased legal backing |

TRPA gets increased legal backing

Andy Bourelle

The Tahoe Regional Planning Agency is getting a little help from its friends, so to speak.

The federal government, four western states and a coalition of nearly 100 California cities are among those who have filed Amicus Curaie – friends of the court – briefs on behalf of the bistate regulatory agency in the 15-year-old Tahoe Sierra Preservation Council vs. TRPA lawsuit.

Amicus Curaie briefs such as those typically aren’t filed until a case goes before the U.S. Supreme Court, according to attorneys.

“It shows how important this case is and shows how many people think the judge got it wrong,” said John Marshall, attorney for TRPA.

The Pacific Legal Foundation, a property rights law firm based in Sacramento, has filed one on behalf of the plaintiffs.

Filed in 1984, the lawsuit centers around TRPA’s alleged “taking” of property in the 1980s.

It was filed after TRPA issued a series of moratoriums in the 1980s, which stopped property owners from developing in certain environmentally sensitive areas. By law, TSPC argues, TRPA should have compensated property owners for that. The case finally went to trial in December 1998 at Reno’s U.S. District Court. Senior U.S. District Judge Edward Reed’s ruling said that TRPA was liable for some of the alleged taking of property.

Appeal briefs have been and likely will continue to be filed through October, and a hearing before a three-judge panel at the 9th Circuit Court of Appeals in Sacramento likely will happen this winter.

TSPC’s attorney Larry Hoffman said he was not surprised by the multiple filings on behalf of TRPA. He represented a Sacramento resident in the takings case Suitum vs. TRPA. He described that case as a victory for property rights advocates, because TRPA earlier this year settled the case for $600,000.

“This is the same cast of characters that interceded on TRPA’s behalf when we presented the Suitum appeal to the Supreme Court,” Hoffman said. “I labeled it in my brief ‘the circling of government wagons.’ This is the first time TRPA has been held liable by a trial court in a takings case. Given the fact this is a bellwether for many planning decisions, I can understand why they called on their friends for help and support.

“I think they feel they’ve got their back against the wall and are pulling out all the stops just like they did in the Suitum case, which it didn’t do any good then,” Hoffman added.

Six briefs were filed on behalf of TRPA from such groups as the U.S. Department of Justice; the League to Save Lake Tahoe; International Municipal Lawyers Association; 10 scientists; 99 California cities and the California State Association of Counties; and the states of Washington, Oregon, Arizona and Montana.

The brief filed by the states says: “A rule under which states and their instrumentalities may not use temporary planning moratoria without compensation would seriously threaten government’s ability to adjust the benefits and burdens of a complex, interdependent society in a rational manner. … If the district court’s erroneous legal interpretations were adopted, the states could be subject to unprecedented and unjustified financial liability for their efforts to protect public resources.”

The lawsuit originally had more than 600 plaintiffs. Because several have dropped out and 55 have died, that number is down to about 450, Hoffman said.

In the 15-year history of the suit, it has gone through a series of court hearings, appeals and mediation sessions, including two trips to the Supreme Court, which wouldn’t take the case and sent it back to district court both times. Both Attorneys General from Nevada and California long ago joined the suit on behalf of TRPA.

After the appeal hearing, if the judges uphold Reed’s ruling, another trial could be scheduled to find the monetary damages involved. Both sides recognize it could be a multi-million dollar judgment.

“I think we’ve responded to TSPC’s (appeal) brief. It really doesn’t say anything new or novel,” Marshall said. “We’re confident the 9th Circuit will reverse Judge Reed’s decision.”

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