May 15, RE: Invitation to Appear. Dear Chairman Lee and Committee Members:

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1 KAMALA D. HARRIS Attorney General State of California DEPARTMENT OF JUSTICE 1300 I STREET, SUITE 125 P.O. BOX SACRAMENTO, CA Public: (916) Telephone: (916) Facsimile: (916) Dan.Siegel@doj.ca.gov May 15, 2012 Senator John J. Lee, Chair, Legislative Committee for the Review and Oversight of the Tahoe Regional Planning Agency and the Marlette Lake Water System 401 S. Carson Street Carson City, Nevada RE: Invitation to Appear Dear Chairman Lee and Committee Members: Thank you for the invitation to attend the Legislative Committee meeting on May 21, Committee staff has explained that the Committee is interested in better understanding the history of our office s involvement with Lake Tahoe environmental matters, as well as concerns that we may have regarding the Tahoe Regional Planning Agency s (TRPA s) draft Regional Plan Update. Unfortunately we are unable to appear in person. We hope, however, that the following will be useful as you consider this matter. To give you an idea of both the length of time that California Attorneys General have been involved with Lake Tahoe environmental issues, as well as the types of issues addressed, I have put together the attached list of Lake Tahoe cases in which our office either represented the People, or represented a client agency, in an effort to protect Lake Tahoe. In reviewing the list, please note two points. First, while a significant portion of the litigation in the 1970s and 1980s involved lawsuits against TRPA or other public entities, no lawsuits on behalf of the People and only one amicus curie brief on behalf of a client was filed against a Lake Tahoe public entity since that time. This reflects a more cooperative atmosphere that has evolved at Lake Tahoe in which various parties increasingly seek to resolve their differences though discussions aimed at identifying pragmatic win-win solutions. Second, the Nevada Attorney General was involved in a number of these cases. Moreover, the two offices not only worked cooperatively on the cases, but they often filed joint briefs. These cases include Kelly v. Tahoe Regional Planning Agency, 109 Nev. 638 (1993); Lake Tahoe EXHIBIT B - TAHOE Document consists of 7 pages. Entire Exhibit provided Meeting Date:

2 Page 2 Watercraft Rec. Ass n v. Tahoe Regional Planning Agency, 24 F. Supp.2d 1062 (E.D. Cal. 1998); Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002); and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 322 F.3d 1064 (9 th Cir. 2003). In addition, I would like to provode you with input concerning TRPA s Regional Plan Update. We are still reviewing the draft plan and related documents. As such, my comments are only preliminary. That said, the draft plan (dated April 25, 2012) appears to have serious defects, such as delegating TRPA s permitting authority over projects to other entities without providing safeguards required by the Bi-State Compact. However, Leo Drozdoff, Director of Nevada s Department of Conservation and Natural Resources and John Laird, California s Secretary of Natural Resources are consulting with various Lake Tahoe stakeholders in an effort to address this and other concerns. So far, these consultations appear to be leading to pragmatic solutions and I am hopeful that they will ultimately result in plan revisions that will be acceptable to all parties involved. Thank you again for this opportunity to provide this information to the Committee. Sincerely, DANIEL L. SIEGEL Supervising Deputy Attorney General For KAMALA D. HARRIS Attorney General

3 Page 3 THE CALIFORNIA ATTORNEY GENERAL AND LAKE TAHOE LITIGATION The following is a list and brief description of lawsuits in which the California Attorney General either represented the People, or represented a client agency, in an effort to protect Lake Tahoe. Each listing starts with the published case citation, where one exists. Note, however, that the reported decisions sometimes involved interlocutory rulings; the cases may have been ultimately resolved in subsequent unreported decisions, or through settlements. Where that occurred, the narrative will note final outcomes. Also, the list is grouped according to the client that the California Attorney General represented. The first group is cases in which the Attorney General acted in an independent capacity (representing the People). The remaining groups are divided according to the particular client that the office represented. Where the Attorney General represented multiple parties, the case is only listed once, and all represented parties are noted. Independent Capacity Lawsuits: People ex rel. Younger v. County of El Dorado, 5 C. 3d 480 (1971): The Attorney General sought, and the California Supreme Court issued, a writ commanding the Counties of El Dorado and Placer to pay the Tahoe Regional Planning Agency sums they owed under the original bistate Compact for the support of TRPA s activities. California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d 215 (9 th Cir. 1975): The Attorney General challenged the construction of two hotel-casinos. The Ninth Circuit rejected the challenge, interpreting the original bi-state Compact as allowing a project where it was approved by local government and then rejected by all 5 of California s TRPA members, but only rejected by a minority (2 of 5) of Nevada s TRPA members. California Tahoe Regional Planning Agency and People of the State of California v. NSC. Inc. and Tahoe Regional Planning Agency, 504 F. Supp. 769 (D. Nev. 1980): In 1978, CTRPA and the Attorney General in his independent capacity filed this action against TRPA and the owner of the Tahoe Mariner/North Shore Club. The lawsuit sought to enjoin the expansion of that casinohotel, due in part to traffic and air pollution impacts. The lawsuit was settled in 1981, allowing an expansion under certain conditions and requiring specified mitigation. California ex rel. John K. Van de Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1308 (9 th Cir. 1985): The Attorney General sued TRPA asserting that its 1984 Regional Plan was inconsistent with the bi-state Compact. The Ninth Circuit upheld a district court preliminary injunction prohibiting development at Lake Tahoe pending trial. The lawsuit was eventually settled. Pursuant to that settlement, TRPA adopted a new plan in 1987.

4 Page 4 South Lake Tahoe v. Tahoe Regional Planning Agency, 664 F. Supp (E.D. Cal. 1987): In 1984, the City of South Lake Tahoe filed a lawsuit against TRPA challenging the 1980 Compact s application to airport activities. The Attorney General intervened on TRPA s side. In this decision, the court held that the Compact applies to airport activities. The parties eventually settled this litigation. The settlement includes noise limits and other use restrictions, and requires specified mitigation. People ex rel. John K. Van de Kamp v. County of Placer (E.D. Cal. 1988) (No. CIV ): In 1988, the Attorney General filed this suit to stop Placer County from constructing a corporate yard access road on steep lands. The lawsuit was resolved in a June 1999 settlement that protects the lands in question. Lake Tahoe Watercraft Rec. Ass n v. Tahoe Regional Planning Agency, 24 F. Supp.2d 1062 (E.D. Cal. 1998): The Association challenged a TRPA ordinance that phased out the use of polluting two-stroke watercraft engines at Lake Tahoe. Attorney General Dan Lungren participated in an amicus curiae capacity, and Attorney General Bill Lockyer subsequently intervened. The case then settled. The original ordinance was replaced with a slightly modified version that continued to phase out these engines. Tahoe Regional Planning Agency v. Barbieri (E.D. Cal. 1999) (No. S ): The Attorney General filed an amicus curiae brief in support of TRPA in this case, which originated as an enforcement action against the Barbieris to force them to remove illegal structures built on their lakeside lot. The Barbieris filed a counter-claim against TRPA. The case settled in 2001, when the California Tahoe Conservancy acquired the owner s parcel, and the owner paid TRPA to settle the building violation charges. Comm. for Reasonable Regulation of Lake Tahoe v. Tahoe Regional Planning Agency, 311 F. Supp.2d 972 (D. Nev. 2004): The Committee challenged TRPA s scenic ordinance. The Attorney General filed an amicus curiae brief in support of TRPA s Motion to Dismiss. That motion was granted, but with leave to file an amended, more limited complaint. The Committee subsequently filed an amended complaint. The Court ruled against the Committee and dismissed without leave to amend. The Committee filed an appeal, but then withdrew it. Representation of the State of California : Kelly v. Tahoe Regional Planning Agency, 109 Nev. 638 (1993): Mr. Kelley sued TRPA and the States of California and Nevada, alleging that TRPA s Individual Parcel Evaluation System system took his property. The Nevada Supreme Court dismissed the lawsuit. Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002): Tahoe-Sierra, and hundreds of property owners, sued TRPA and the States of California and Nevada, alleging that residential development moratoria imposed by TRPA in the early 1980s, and TRPA s 1984 and 1987 Regional Plans, took the owners properties. Following 18 years

5 Page 5 of litigation, the lawsuit was ultimately dismissed as a result of the U.S. Supreme Court decision noted above. Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 322 F.3d 1064 (9 th Cir. 2003): This was a new lawsuit against TRPA and the States of California and Nevada, this time allegedly challenging the application of TRPA s 1987 Regional Plan to some of the same and to some new property owners. The Ninth Circuit ultimately dismissed the lawsuit, mainly on claim preclusion grounds because the assertions were similar to those made in the prior lawsuit. Representation of the California Tahoe Conservancy: Avakian and Tahoe Keys Property Owners Ass n v. DilDev Corp. and State of California (El Dorado Co. Superior Ct. Case No. SV ): This lawsuit challenged the California Tahoe Conservancy s title to the undeveloped portion of the Tahoe Keys called Cove East. In 1990 the lawsuit was resolved in a settlement under which the Conservancy and others paid the Association to relinquish their title claims. Representation of the State Water Resources Control Board: Fallen Leaf Protection Ass n v. State, 46 Cal. App. 3d 816 (1975): In this action, the Attorney General defended the State Water Resources Control Board, and the Lahontan Regional Water Quality Control Board, against the Association s challenge of a state law banning its members from continuing to use cesspools and septic tanks for their Lake Tahoe properties. The court of appeal affirmed the trial court s dismissal of that challenge. The state entities enforced the ban in a companion action. Tahoe-Sierra Preservation Council v. State Water Resources Control Bd., 210 Cal. App. 3d 1421 (1989): The Attorney General defended the State Water Resources Control Board against Tahoe-Sierra s challenge of the Board s water quality control plan for Lake Tahoe. The Court of Appeal decision rejected Tahoe-Sierra s challenge, and the case was dismissed. Tahoe Keys Property Owner s Ass n v. State Water Resources Control Bd., 23 Cal. App. 4th 1459 (1994): In this litigation the Attorney General represented the California Regional Water Quality Control Board - Lahontan Region, the Resources Secretary and the State Water Resources Control Board. The Association sought the return of $2 million in water quality mitigation funds, and an order preventing Lahontan from allocating funds to the Conservancy s Cove East project and to the U.S. Forest Service s Pope Marsh burn project. TKPOA dismissed their lawsuit in 1995 after the appellate court held that TKPOA was not entitled to a preliminary injunction because, among other things, it had not established the likelihood that it would prevail on the merits at trial.

6 Page 6 Representation of the California State Lands Commission: County of Placer v. Obexer and Sons (3rd Dist. Ct. of App. 1978); County of Placer v. Henrikson (3 rd Dist. Ct. of App. 1988, Case No. C000787): The Attorney General represented the State Lands Commission as amicus curiae in these two cases which involved issues similar to Kraus v. Placer County, below. The court rendered unpublished opinions in both cases adopting the State s argument that lakefront parcels dedicated as public right of ways in 1910 included public rights of access for recreational uses. State of California v. Superior Court (Fogerty), 29 Cal.3d 240 (1981); Fogerty v. State of California, 187 Cal. App. 3d 224 (1986): The Attorney General represented the California State Lands Commission in this litigation. The first noted decision held that the State holds a public trust easement to Lake Tahoe. The second decision held that the uppermost limit of that easement is located at 6, feet above sea level, Lake Tahoe datum. People v El Dorado Improvement Corp. (El Dorado Co. Superior Ct.): The Attorney General brought this action in the early 1990s on behalf of the California State Lands Commission in response to illegal dredging of Lake Tahoe s bed. The unpermitted dredging caused substantial environmental damage. The Attorney General negotiated favorable settlements with the defendants, which included a significant financial judgment plus remediation of the site. Kraus v. Placer County (E.D. Cal. 1999) (No. CIV-S ): Eleven lakefront property owners sued Placer County, which was asserting that certain lands were available to the public for recreational purposes. The Attorney General intervened on behalf of the State Lands Commission to support the County. The parties reached a settlement, which the court approved on October 21, The settlement establishes an expanded public trust easement under the control of the County. League to Save Lake Tahoe and Sierra Club v. Tahoe Regional Planning Agency 739 F. Supp. 2d 1260 (E.D. Cal. 2010): Environmental groups challenged TRPA's amended shorezone ordinances, which among other things, authorized 128 new private piers and 1,862 new mooring buoys. The Attorney General filed an amicus curiae brief on behalf of the California State Lands Commission supporting the plaintiffs. On September 16, 2010, the Court issued a final Order vacating TRPA's adoption of its amendments and certification of its Environmental Impact Statement, and remanding the matter to TRPA. The Ninth Circuit Court of Appeals subsequently reversed a small portion of that decision (involving TRPA s choice of a baseline), but left the remaining decision in place. The Attorney General did not participate in that appeal.

7 Page 7 Representation of the California Tahoe Regional Planning Agency: The Attorney General represented CTRPA in dozens of lawsuits, including many brought by landowners challenging CTRPA regulations or permit decisions. Readily available information concerning these actions includes the following: 1. CTRPA filed a series of lawsuits in an effort to stop the construction of two casino parking garages near South Lake Tahoe. See California Tahoe Regional Planning Agency v. Jennings, 594 F.2d 181 (9 th Cir. 1979); California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753 (D. Nev.1981); California Tahoe Regional Planning Agency v. Harrah s Corp., 509 F. Supp. 753 (D. Nev.1981); and State of California (ex rel. Air Resources Board, Resources Agency, Department of Transportation and California Tahoe Regional Planning Agency) v. United States Environmental Protection Agency, 774 F.2d 1437 (9 th Cir. 1985). Although it appears that the projects were not ultimately enjoined, the 1980 amended bistate Compact included new, strict limitations on future casino and casino-related expansions. 2. A number of CTRPA lawsuits resulted in published decisions upholding CTRPA s (or it s successor in interest s) assertion of jurisdiction over particular projects. See Raley v. California Tahoe Regional Planning Agency, 68 Cal. App. 3d 965 (1977); McCarthy v. California Tahoe Regional Planning Agency, 129 Cal. App. 3d 222 (1982); and California Tahoe Regional Planning Agency v. Day and Night Electric, Inc., 163 Cal. App. 3d 898 (1985). 3. The California Tahoe Conservancy was able to resolve a series of significant lawsuits against CTRPA by acquiring the properties in question. Those lawsuits include: McCormac v. California Tahoe Regional Planning Agency (Moon Dunes) Viso v. State of California (Eagle Rock) Glenridge v. State of California Powerhorn v. Tahoe Regional Planning Agency Dilingham Dev. Corp. v. California Tahoe Regional Planning Agency (Cove East) Tal-Land v. Tahoe Regional Planning Agency and State of California Rutter-Shaffer v. Tahoe Regional Planning Agency and State of California