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A Turning of the Tide: The Tahoe Regulatory Takings Decision

October 2002

Citation: ELR 11235

Author: John D. Echeverria

On April 23, 2002, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,1 the U.S. Supreme Court rejected a regulatory taking claim based on a nearly three-year moratorium on development in the Lake Tahoe Basin. The Court split 6 to 3, with Justice John Paul Stevens writing the decision for the Court, and Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissenting. The decision is the first clear-cut victory for the government side in a land use or environmental takings case before the high court in 15 years.2

Apart from the unusual result, the decision is significant because the Court actually resolved several important legal issues. Many of the Court's recent takings cases have produced fractured majorities,3 or narrow holdings that avoided deciding any fundamental legal question.4 In Tahoe-Sierra, a strong majority issued several clear and important rulings, and in the main these rulings are highly favorable to government defendants.

John D. Echeverria is the Executive Director of the Georgetown Environmental Law and Policy Institute, which conducts research and education on legal and policy issues relating to protection of the environment and conservation of natural resources. Mr. Echeverria is a graduate of the Yale Law School and the Yale School of Forestry and Environmental Studies and formerly served as General Counsel and Conservation Director of American Rivers and as General Counsel of the National Audubon Society. He has written extensively on the regulatory takings issue and other environmental law topics. Mr. Echeverria filed friend of the court briefs in the Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency case on behalf of national and regional conservation and planning organizations in the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.

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