A challenge by dissident conservationists to the Lake Tahoe Regional Plan Update is in the hands of U.S. Judge John A. Mendez following oral arguments in Sacramento March 26.

The arguments put a bookend to a fierce, prolonged exchange of court papers heavy with mutual exasperation, between parties who may disagree more utterly than most.

The Sierra Club and Friends of the West Shore, plaintiffs in the litigation, are holdout critics of the 2012 Regional Plan Update (RPU), which forms the centerpiece of a major political and regulatory settlement on California and Nevada officials' shared environmental governance of the Lake Tahoe basin. (See http://www.cp-dr.com/articles/node-3435.) Based on claims that the RPU erodes previously established scientific standards, the Sierra Club plaintiffs have been contesting its validity in federal court for the past year. The Tahoe Regional Planning Agency (TRPA), as defendant in the litigation, is being pressed to justify the work of negotiators at many levels, including some Tahoe Basin conservation leaders, who put years of effort into crafting the RPU. The Sierra Club plaintiffs depict TRPA as soft on developers; TRPA depicts the plaintiffs as destructive perfectionists.

According to the Tahoe Daily Tribune (See http://www.tahoedailytribune.com/news/10781943-113/plan-lake-tahoe-trpa) and a statement released by TRPA, the oral arguments themselves addressed well-established themes in the briefing. Mendez will now decide competing motions for summary judgment that could very possibly end the case.

Fractious briefing

The lawyers exchanged indignantly phrased briefs through early 2014, taking extra bites at each other's arguments by filing oppositions to amicus briefs and judicial notice requests.

TRPA's counsel tried during the last week before the hearing to gain an extra edge from two recent high-profile cases in which courts trusted agencies' judgment on environmental plans. One was Judge Jay Bybee's call for deference to administrative-branch expertise in the Ninth Circuit's Delta Smelt decision  (See http://www.cp-dr.com/articles/node-3448). The other was the California Second District's choice to accept "adaptive management" of the endangered spineflower in proposed Newhall Ranch development areas. (See http://www.cp-dr.com/articles/node-3461 and Center for Biological Diversity v. Department of Fish and Wildlife at http://www.courts.ca.gov/opinions/documents/B245131.PDF.)

Judge Mendez did not focus on the two new cases. TRPA's John Marshall answered an email query: "The recent cases were not discussed at the oral argument". Earthjustice's Wendy Park answered a parallel query: "The Judge only commented at the beginning of the hearing that argument on those two cases was not necessary since they were only marginally relevant (they'd be "the last case in a string cite")." Invited to respond to Park, TRPA spokesman Jeff Cowen wrote: "TRPA has no response to the statement."

In earlier 2014 briefing, TRPA, joined in an amicus brief by the California and Nevada natural resource agencies, suggested the difficulty and extent of the bi-state public process that created the RPU was itself an argument for the RPU's validity. Plaintiffs countered that the court's review was limited to the legality of TRPA's proceedings and the adequacy of supporting evidence. In late February the plaintiffs quoted a warning out of Laurel Heights v. UC Regents, 47 Cal.3d 376 (1988), against the risk that "bureaucratic and financial momentum" would overrun "environmental concerns that could be dealt with more easily at an early stage."

Otherwise TRPA continued to defend the Regional Plan Update as a pragmatic shift toward regulation via incentives for environmental retrofitting and reduction of ground coverage via denser redevelopment. Supporters of the RPU have argued that its new frameworks for regulation are based on scientific advances and physical changes in the lake basin's environmental needs that have appeared since the prior Regional Plan's 1987 approval. (See http://www.cp-dr.com/articles/node-3435.)

Disputes in the 2014 briefing included whether the RPU would provide adequately for ongoing enforcement of required Best Management Practices (BMP) on developed properties, and whether the lake's Total Maximum Daily Load (TMDL) standards would be either strict enough or sufficiently enforceable, especially on the Nevada side and in areas where local jurisdictions would be taking over enforcement tasks.

In an argument that TRPA may have meant to answer by quoting the Newhall Ranch spineflower decision, the plaintiffs claimed in a January brief that TRPA's "adaptive management" approach to BMP enforcement "amounts to possibly reacting to worsened conditions (in an unspecified manner)" instead of getting ahead of them.

TRPA retorted in its papers that the standards were real, sufficient and sufficiently enforceable to improve on current conditions, complaining meanwhile that "Plaintiffs persist in failing to distinguish between TRPA's BMP Retrofit Program for existing legacy development, and BMPs required for new development or redevelopment." TRPA further accused plaintiffs of "ignoring an overwhelming scientific and technical consensus" supporting the TMDL "load reduction credits" system of regulation, and of cherry-picking both laws and regulations to find fault.

Plaintiffs argued in their series of briefs that TRPA hadn't sufficiently studied the true likely effects on runoff and soil from the RPU's incentives for developers to restore properties in fragile areas and transfer development credits to town center areas. TRPA accused plaintiffs of shifting ground improperly by leading with a water quality analysis in their opening brief, then shifting emphasis to soil conservation arguments in later papers. TRPA argued the EIS had met the necessary standard on soil conservation because it modeled and analyzed "potential impacts on nutrient cycling" and discussed effects on vegetation and on fish habitat.

Plaintiffs wrote that "'Redevelopment' Means More Development" and predicted the RPU would allow "183 more acres of coverage region-wide" and that "the transfer of 960 development rights from... undeveloped and undevelopable parcels to developable parcels located in centers" would increase overall construction. Plaintiffs disagreed with a group of business and real estate amici on whether a new "resort recreation" designation of 315 acres of prior "recreation" lands at the Edgewood and Heavenly resort properties would expand urban boundaries.

On the contrary, in its press statement about the March 26 oral arguments, TRPA reiterated its position that "The Regional Plan will result in less impervious land coverage in the Basin, more open space, and will accelerate the removal of legacy land coverage from sensitive lands."

As for ozone monitoring, said by the plaintiffs to be neglected under the RPU (their January brief said there were no monitors at all in South Lake Tahoe), TRPA replied in its papers that the RPU would reduce vehicle use, that auto emissions standards have caused ozone levels to decline, and that more monitoring is not required by law.

TRPA's statement quoted Executive Director Joanne Marchetta as saying, "We all want Lake Tahoe to continue to be one of the most protected watersheds in the nation and our plan will do that... This litigation boils down to how we balance strong environmental protections with the need to upgrade existing development that is impacting the Lake."

The Tahoe Daily Tribune reported Judge Mendez took the case under submission without specifying a date for his decision.