Opinion

(PS) Bryan v. Tahoe Regional Planning Agency

Court
District Court, E.D. California
Filed
Jan 24, 2023
Cited by
0 cases
Authority
More cited than 18.2%

The opinion

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 KENT M. BRYAN, No. 2:21-cv-2340 TLN AC PS

12 Plaintiff,

13 v. ORDER and

14 TAHOE REGIONAL PLANNING FINDINGS AND RECOMMENDATIONS

AGENCY, et al.,

15

Defendants.

16

17

18 Plaintiff is proceeding in this action pro se and the case was accordingly referred to the

19 undersigned by Local Rule 302(c)(21). Following an initial scheduling hearing that took place on

20 June 29, 2022 (ECF No. 13), defendants moved for partial judgment on the pleadings and partial

21 summary judgment, such that all claims will be resolved. ECF No. 15. Defendants filed their

22 memorandum at ECF No. 16 and a request for judicial notice at ECF No. 17. Plaintiff opposes

23 the motion. ECF No. 22. Defendants replied and submitted a supplemental request for judicial

24 notice. ECF Nos. 20, 21.1 Plaintiff filed a surreply (ECF No. 23) to which defendants object

25 (ECF No. 24). The court, in its discretion, considers the surreply in an effort to ensure all

26 arguments are fully considered.

27

28 1 The court recognizes that the docket numbers are not in proper ascending sequence.

1 As a preliminary matter, the court notes defendants made a supplemental motion for

2 judicial notice of public records, labeled “Relevant portions of TRPA Application MOOR2009-

3 3449.” ECF No. 21. “Judicial notice is appropriate for records and reports of administrative

4 bodies.” United States v. 14.02 Acres of Land More or Less in Fresno County, 546F3.d 943, 955

5 (9th Cir. 2008) (internal quotation marks omitted). The documents for which defendants seek

6 judicial notice are public records, further authenticated by the declaration of Katherine Huston, a

7 Paralegal at Tahoe Regional Planning Agency and a person with knowledge of the documents.

8 ECF No. 21-1. For these reasons, the motion for judicial notice (ECF No. 21) is GRANTED.

9 I. Complaint and Procedural Background

10 Plaintiff sues the Tahoe Regional Planning Agency (“TRPA”), along with 19 individual

11 defendants professionally associated with TRPA, in this action claiming violations of plaintiff’s

12 Fifth and Fourteenth Amendment Rights pursuant to 42 U.S.C. § 1983, as well as violations of 36

13 C.F.R. § 327.20 (Unauthorized Structures), 22 C.F.R. § 3300.3(b) (Activities occurring before

14 certain dates), Section 10 of the US Harbors and Rivers Act (33 U.S.C. § 403), and the Tahoe

15 Regional Planning Agency Code of Ordinances and Rules of Procedures. ECF No. 1 at 1-3, 9-14.

16 TRPA now seeks judgment on the pleadings on plaintiff’s civil rights claims pursuant to

17 Fed. R. Civ. P. 12(c). TRPA contends these claims are defective as a matter of law, primarily

18 because plaintiff lacks sufficient interest in a buoy located on California state lands. ECF No. 16

19 at 7. TRPA also seeks summary judgment, pursuant to Fed. R. Civ. P. 56, on the record-based

20 claims that TRPA abused its discretion when it denied plaintiff’s application for a buoy.

21 II. Applicable Legal Standards

22 A. Judgment on the Pleadings/Judicial Review of Agency Decision

23 Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but early

24 enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P.

25 12(c). In a 12(c) motion, the court “assume[s] that the facts that [plaintiff] alleges are true.”

26 Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) (citing United States ex rel. Cafasso v. Gen.

27 Dynamics C4 Sys., 637 F.3d 1047, 1053 (9th Cir. 2011) ). “Judgment on the pleadings is

28 properly granted when [, accepting all factual allegations in the complaint as true,] there is no

1 issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.”

2 Chavez v. United States, 683 F.3d 1102, 1108–09 (9th Cir. 2012) (quoting Fleming v. Pickard,

3 581 F.3d 922, 925 (9th Cir. 2009)).

4 Judicial review of a final TRPA decision on a permit is provided for in Article VI(j) of the

5 bi-state Tahoe Regional Planning Compact (“Compact”). Under Article VI(j)(5), the Court’s

6 review is limited to determining whether TRPA’s decision “was supported by substantial

7 evidence and is otherwise in accordance with the law.” S&M Inv. Co. v. Tahoe Regional

8 Planning Agency, 702 F. Supp. 1471, 1472 (E.D. Cal. 1988). Article VI(j)(5) of the Compact

9 provides in relevant part:

10 In any legal action filed pursuant to this subdivision which

challenges an adjudicatory act or decision of the Agency to approve

11 or disapprove a project, the scope of judicial inquiry shall extend

only to whether there was prejudicial abuse of discretion. Prejudicial

12 abuse of discretion is established if the Agency has not proceeded in

a manner reburied by law or if the act or decision of the Agency was

13 not supported by substantial evidence in light of the whole record. In

making such determination, the court shall not exercise its

14 independent judgment on evidence, but shall only determine whether

the act or decision was supported by substantial evidence in light of

15 the whole record.

16 Request for Judicial Notice, Exhibit B. Substantial evidence has been defined as such evidence

17 “as a reasonable mind might accept as adequate to support a conclusion.” Berroteran–Melendez

18 v. I.N.S., 955 F.2d 1251, 1255–1256 (9th Cir.1992). Moreover, the substantial evidence standard

19 of review must be “searching and careful,” subjecting the agency’s decision to close judicial

20 scrutiny. Containerfreight Corp. v. U.S., 752 F.2d 419, 422 (9th Cir.1985).

21 B. Summary Judgment

22 Summary judgment is appropriate when the moving party “shows that there is no genuine

23 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

24 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden

25 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627

26 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The

27 moving party may accomplish this by “citing to particular parts of materials in the record,

28 including depositions, documents, electronically stored information, affidavits or declarations,

1 stipulations (including those made for purposes of the motion only), admissions, interrogatory

2 answers, or other materials” or by showing that such materials “do not establish the absence or

3 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

4 support the fact.” Fed. R. Civ. P. 56(c)(1).

5 Summary judgment should be entered, “after adequate time for discovery and upon

6 motion, against a party who fails to make a showing sufficient to establish the existence of an

7 element essential to that party’s case, and on which that party will bear the burden of proof at

8 trial.” Celotex, 477 U.S. at 322. In such a circumstance, summary judgment should “be granted

9 so long as whatever is before the district court demonstrates that the standard for the entry of

10 summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

11 If the moving party meets its initial responsibility, the burden then shifts to the opposing

12 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.

13 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the

14 existence of this factual dispute, the opposing party may not rely upon the allegations or denials

15 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or

16 admissible discovery material, in support of its contention that the dispute exists. See Fed. R.

17 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a

18 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty

19 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809

20 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a

21 reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248.

22 In the endeavor to establish the existence of a factual dispute, the opposing party need not

23 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed

24 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the

25 truth at trial.’” T.W. Elec. Service, Inc., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v.

26 Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to

27 pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

28 trial.” Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted).

1 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the

2 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls

3 v. Cent. Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is

4 the opposing party’s obligation to produce a factual predicate from which the inference may be

5 drawn. See Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to

6 demonstrate a genuine issue, the opposing party “must do more than simply show that there is

7 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations

8 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the

9 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391

10 U.S. at 289).

11 III. Statement of Undisputed Facts

12 Unless otherwise specified, the following facts are either expressly undisputed by the

13 parties or have been determined by the court, upon a full review of the record, to be undisputed

14 by competent evidence. This case involves an agency administrative record (“AR”), which is

15 filed in three volumes at ECF No. 8-1 (AR I), 8-2 (AR II), and 8-3 (AR III). It is fully described

16 an authenticated by the Tahoe Regional Planning Agency at ECF No. 8. Defendants’ statement

17 of undisputed facts is located at ECF No. 26; plaintiff’s statement is located at ECF No. 27.

18 Plaintiff Kent Bryan claims ownership of a non-littoral (i.e., non-shoreline) parcel of

19 property located at 4100 Doe Ave. in Placer County. AR I at 8. On October 13, 2009, plaintiff

20 applied for a TRPA Mooring Permit for a buoy anchored in the West Shore of Lake Tahoe. AR I

21 at 1-5. On February 26, 2010, TRPA staff requested additional information to support plaintiff’s

22 permit application. AR I at 6. Plaintiff provided a letter from the U.S. Army Corps of Engineers

23 (“USACE”) dated October 7, 2009, stating that the buy in question had been in place in Lake

24 Tahoe since 1968. AR I at 7. Plaintiff’s application was not immediately processed because

25 TRPA was in the process of revising its 2008 Shoreline Plan, which was previously invalidated

26 by this court. ECF No. 27 at 2-3.

27 On October 24, 2018, TRPA adopted its revised Shoreline Plan, which became effective

28 on December 23, 2019. ECF No. 17-1. In April of 2019 TRPA opened the application process

1 for existing buoys, Phase 1. ECF No. 17-3 at Ch. 2.B. Under the 2018 Shoreline Plan, a non-

2 littoral parcel owner may be entitled to a mooring buoy permit if: (i) the non-littoral parcel owner

3 provides clear evidence of the existence of the buoy prior to February 10, 1972; and (ii) the non-

4 littoral parcel owner provides a valid authorization from the federal or state agency with

5 jurisdiction at Lake Tahoe. AR I at 14, TRPA Code of Ordinances § 84.3.3.D.3.b.

6 On January 13, 2020, plaintiff submitted, as a non-littoral parcel owner, an application for

7 a TRPA Mooring Permit for a buoy anchored in West Shore Lake Tahoe. AR I at 8-12. To

8 support his application, plaintiff provided the USACE letter dated October 7, 2009, which states

9 that the buoy in question has been in place since 1968. AR I at 7, AR III 42-424. On February

10 25, 2021, TRPA’s Executive Director denied the buoy permit application via a letter asserting

11 that the USACE letter did not constitute “valid authorization from an applicable federal or state

12 agency with jurisdiction at lake Tahoe” as required by the TRPA Code of Ordinances. AR I at

13 14. On March 11, 2021, plaintiff timely appealed the denial of his application. AR I at 15-23.

14 The issue on appeal was whether plaintiff’s application met the second prong of the TRPA Code

15 § 84.3.3.D.3.B – whether the USACE letter “provides a valid authorization from an applicable

16 federal or state agency with jurisdiction at lake Tahoe.” AR I at 37-38. The TRPA staff report

17 concluded that the first prong was met through evidence in the form of the USACE letter showing

18 the buoy had been in existence since 1968. AR I at 38. However, TRPA staff concluded that the

19 second prong — requiring the non-littoral parcel owner to provide a valid authorization from the

20 federal or state agency with jurisdiction at Lake Tahoe — was not met.

21 The TRPA letter states, on that point, as follows:

22 The main issue involved in this appeal is whether the 2009 U.S.

Army Corps of Engineers’ letter constitutes “valid authorization” for

23 Mr. Bryan’s claimed buoy. According to the Corps, the 2009 Corps

grandfathering letter is not authorization for a specific person or

24 property owner to place a buoy in Lake Tahoe. See May 18, 2021

email for U.S. Corp of Engineers (attachment D). Moreover, the

25 Corps letter does not provide the necessary association between Mr.

Bryan’s non‐littoral parcel and the claim buoy, it simply recognizes

26 that a buoy has existed since before 1972. Since the letter only

confirms a buoy existed prior to that date and the letter can be issued

27 to any party or property that requested the grandfather determination

regardless of actual ownership, the Corps’ “grandfather” letters

28 simply duplicate the requirements of Code section 84.3.3.D.3.b(i),

1 rather than provide the additional personal authorization required by

Code section 84.3.3.D.3.b(ii). As a result, Mr. Bryan has not met his

2 burden and his appeal should be denied.

3 AR I at 38.

4 In an email to Matthew Miller and Tiffany Good from TRPA regarding USACE

5 grandfathering decisions dated May 18, 2021, Jennifer Thompson, whose e-mail signature reads

6 “Senior Project Manager” for the Nevada-Utah Regulatory Section of the USCAE, wrote as

7 follows regarding the impact of a USCAE grandfather determination:

8 Per our conversation, a grandfather determination means that the

STRUCTURE(S) is/are authorized by the Corps because the

9 structure(s) existed prior to December 18, 1968 per 33 CFR §

330.3(b) (https://www.law.cornell.edu/cfr/text/33/330.3). A

10 grandfather determination does not and cannot make any assignment

or transfer of ownership for a grandfathered structure, it simply

11 represents the Corps’ determination that the activity was commenced

or completed prior to December 18, 1968 and therefore does not

12 require further permitting from the Corps under Section 10 of the

Rivers and Harbors Act of 1899 (33 U.S.C. § 403).

13

14 AR I at 56.

15 The TRPA Legal Committee considered plaintiff’s appeal on May 24, 2021, and the

16 Board voted to remand to Staff for validation of ownership proof the buoy in question. AR I at

17 191. On June 14, 2021, plaintiff submitted a statement to TRPA regarding ownership and control

18 of the buoy in question. AR II at 196-222. The submission included (1) email correspondence

19 with USACE wherein USACE requested plaintiff’s grant deed and tax bill; (2) email

20 correspondence with the County Sherriff documenting theft and/or vandalism of the buoy; (3)

21 email correspondence regarding theft and vandalism of other “Tall Pines” buoy owners; (4)

22 receipts for maintenance of the buoy; and (4) a thank you letter from a person who used the buoy

23 in question for a portion of a season. AR II 198-222. On August 13, 2021, TRPA staff

24 responded after remand and again denied the permit application. AR II at 223.

25 TRPA’s second denial letter stated that TRPA staff could find no evidence demonstrating

26 that plaintiff, or a predecessor in interest, received authorization to place the buoy or that it

27 continues to be legally associated with plaintiff’s non-littoral parcel, and concluded that the

28 second grandfather prong was not satisfied. AR II at 223. On August 16, 2021, Bryan timely

1 appealed the second denial. AR II at 224. The issue on appeal was again whether the USACE

2 Letter constitutes “valid authorization” for plaintiff’s claim to the buoy in question under the

3 TRPA code. AR II at 227. On October 27, 2021, the TRPA legal committee considered the

4 appeal and voted to recommend denial of the appeal to the Governing Board. AR II at 337. Later

5 the same day, the Board denied the appeal. AR II at 368.

6 IV. Analysis

7 A. Defendants are Entitled to Judgment on Plaintiff’s Takings Claim

8 Plaintiff claims TRPA’s denial of his buoy application “violated the Constitution of the

9 United States by taking the Plaintiff’s property.” ECF No. 1 at 15. The Takings Clause of the

10 Fifth Amendment prohibits the government from taking “private property” “for public use,

11 without just compensation.’” U.S. Const., amend. V. “A Takings Clause claim requires proof

12 that the plaintiff possesses a ‘property interest’ that is constitutionally protected.” Sierra Med.

13 Servs. All. v. Kent, 883 F.3d 1216, 1223 (9th Cir. 2018) (internal citations omitted). “Only if he

14 does indeed possess such an interest will a reviewing court proceed to determine whether the

15 expropriation of that interest constitutes a ‘taking’ within the meaning of the Fifth Amendment.”

16 Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1198 (9th Cir.1998).

17 “In some instances, a person can have a constitutionally protected property interest in a

18 government benefit, such as a license or permit.” Gerhart v. Lake County, Mont., 637 F.3d 1013,

19 1019 (9th Cir. 2011). To a property interest in a license or permit, a plaintiff must demonstrate

20 more than a need, desire, or unilateral expectation; he must show an “entitlement” to the benefit,

21 and a property interest that stems from an independent source such as state law or certain

22 rules/understandings that support claims of entitlement to the benefit at issue. Id. “The Supreme

23 Court has explained, ‘[a] constitutional entitlement cannot be created—as if by estoppel—merely

24 because a wholly and expressly discretionary state privilege has been granted generously in the

25 past.’” Id. (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)).

26 In this case, plaintiff has no cognizable property interest in his application to locate a buoy

27 on lands belonging to the State of California. Upon entering statehood, California gained title to

28 the bed of Lake Tahoe within its boundaries from the United States. State of California v.

1 Superior Ct. (Lyon), 29 Cal. 3d 210, 222 (1981). Plaintiff, who is seeking a permit for a buoy on

2 state property, does not have a “legitimate claim of entitlement” to a buoy permit and therefore

3 lacks a property interest to be “taken” by the denial of that application. The USACE Letter

4 confirms only that a buoy has existed in its current location since 1968. AR I:7. The TRPA

5 denied the permit based on the lack of evidence linking plaintiff’s lot on Doe Avenue to the buoy

6 in question, and there is no evidence of a lease or other approval from the appropriate agencies.

7 Plaintiff thus has no recognizable interest in the existing buoy’s location. Though he rests his

8 takings claim on his interest in the location of the pre-existing buoy, the fact that some form of

9 permission may have previously been granted to place the buoy does not create an entitlement to

10 a permit. Conn. Bd. of Pardons, 452 U.S. at 465. The State of California informed plaintiff that

11 his unpermitted buoy is trespassing on state lands because he has not been issued a lease from the

12 California State Lands Commission. See AR III:0422-0424. Per California law, plaintiff’s

13 trespass can never ripen into a property interest. See Cal. Civil Code § 1007. Because plaintiff

14 does not have an entitlement to a permit on State-owned land, he cannot succeed on a Takings

15 claim under the Fifth Amendment. Judgement should be entered in favor of defendants on this

16 claim.

17 B. Defendants are Entitled to Judgment on Plaintiff’s Equal Protection Claim

18 Plaintiff also asserts that is Fourteenth Amendment right to Equal Protection was violated

19 by defendants. The Fourteenth Amendment provides that “[n]o state shall ... deny to any person

20 within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Bryan’s

21 complaint alleges that TRPA violated the equal protection clause because “[t]he defendant is not

22 treating all applicants equally.” ECF No. 1 at 15.

23 The purpose of the equal protection clause is to protect against “intentional and arbitrary

24 discrimination.” Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923) (quoting

25 Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918)). To establish an

26 equal protection violation, a plaintiff must demonstrate that he is either a member of a protected

27 class or a “class of one,” and that he was treated differently than others who are similarly situated

28 without any rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528

1 U.S. 562, 563 (2000). Where the alleged discrimination is not based on plaintiff’s membership in

2 a protected class (e.g., race discrimination), “rational basis” review applies. Nordlinger v. Hahn,

3 505 U.S. 1, 10 (1992). Rational basis review requires that “there is a rational relationship

4 between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by

5 Doe, 509 U.S. 312, 320 (1993). “The government doesn’t have to articulate the purpose of its

6 policy or the reasons for its classifications. Instead, the party raising an equal protection

7 challenge must negate ‘every conceivable basis which might support it.’” United States v. Ayala-

8 Bello, 995 F.3d 710, 715 (9th Cir.) (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315

9 (1993)), cert. denied, 142 S. Ct. 513 (2021).

10 To bring a “class of one” equal protection claim, a plaintiff allege facts supporting three

11 elements: that the defendants “(1) intentionally (2) treated [plaintiff] differently than other

12 similarly situated [mine operators], (3) without a rational basis.” Gerhart v. Lake County, Mont.,

13 637 F.3d 1013, 1022 (9th Cir. 2011). “[A]s to the different treatment element, a plaintiff must

14 demonstrate that the level of similarity between plaintiff and the persons with whom [plaintiff]

15 compare[s] [herself] [is] extremely high.” Hamer v. El Dorado County, No. 08-2669, 2011 WL

16 794895, at 12 (E.D.Cal. Mar. 1, 2011) (citation and internal quotation marks omitted). Equal

17 protection is intended to prevent disparate treatment of those “whose situations are arguably

18 indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609 (1974). “Where a plaintiff is making a

19 class-of-one claim, the essence of the claim is that only the plaintiff has been discriminated

20 against, and therefore the basis for the differential treatment might well have been because the

21 plaintiff was unique; thus, there is a higher premium for a plaintiff to identify how he or she is

22 similarly situated to others.” Scocca v. Smith, No. C–11–1318 EMC, 2012 WL 2375203, at 5

23 (N.D. Cal. June 22, 2012).

24 In the present case, the complaint itself does not identify any other applicants to whom

25 plaintiff is similarly situated. In his opposition to defendants’ motion, plaintiff argues that there

26 are “two other Tahoe Pines residents that have received permits for non-littoral buoys that are

27 similarly situated to plaintiff.” ECF No. 22 at 12. One of the permits plaintiff attaches is not for

28 a buoy but for a pier, and the applicant is listed as the Tahoe Pines Homeowners Association, not

1 an individual resident. ECF No. 22 at 32. The other document is a “Notice of Exemption” for

2 buoys by property owners identified as the O’Neill trust. Id. at 28. However in their

3 supplemental request for judicial notice, defendants submit evidence that the O’Neill permit

4 application varied in important ways from plaintiff’s application.

5 Specifically, unlike plaintiff’s application, the O’Neill application was submitted as

6 littoral lot on Lake Tahoe. ECF No. 21-1 at 8-9. Also unlike plaintiff, the O’Neill’s hold a lease

7 from the California State Land Commission for their two buoys. Id. at 16-21. Further, unlike

8 plaintiff, TRPA considered the O’Neill application under a different set of shorezone ordinances

9 in effect in 2010 rather than the 2018 Shoreline Plan. Id. at 1. These differences establish why

10 TRPA granted the O’Neill a permit for their buoys. Plaintiff fails to allege any similarly situated

11 applicant (i.e., a non-littoral property owner without a specific authorization and relying upon a

12 USACE grandfathering letter who was granted a buoy permit under the 2018 Shoreline Plan) who

13 was treated differently. TRPA is thus entitled to judgment on the pleadings on the equal

14 protection claim.

15 C. Judgment in Favor of Individual Defendants is Appropriate

16 Plaintiff sued TRPA Governing Board and staff members individually without any

17 allegations that these individuals acted outside of their official capacities, and without alleging

18 any specific facts tied to any individuals. ECF No. No. 1 at 2-14. TRPA sought judgment on the

19 pleadings for all members in their individually capacity on several grounds, including qualified

20 immunity, personal jurisdiction, and quasi-judicial immunity. Motion at 11-13. Plaintiff failed

21 respond to or address any of these grounds in his Opposition. In an unauthorized surrpely, which

22 the court considers in light of plaintiff’s pro se status, plaintiff “emphasizes they have moved the

23 Court for discovery and that the Defendants actions outside of their official capacities cannot be

24 determined at this juncture.” ECF No. 23 at 2. This is not sufficient to defeat the motion.

25 A complaint alleging claims against individual defendants under § 1983 must allege in

26 specific terms how each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637

27 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. 1983 unless there is

28 some affirmative link or connection between a defendant’s actions and the claimed deprivation.

1 Id. It is not enough for plaintiff to state, in defense to a motion for summary judgment, that it is

2 possible discovery will reveal a claim. Plaintiff has not alleged any specific action taken by any

3 specific defendant; he has not even identified what he thinks he might find by conducting

4 discovery. Judgment in favor of defendants is appropriate under these circumstances.

5 D. Defendants are Entitled to Judgment on Plaintiff’s Administrative Review Claim

6 Plaintiff alleges that TRPA erred in denying his permit application because it incorrectly

7 interpreted the second prong of Code section 84.3.3.D.3.b. Plaintiff argued to TRPA’s

8 Governing Board that the USACE Letter was “valid authorization,” but the Governing Board,

9 after briefing from TRPA staff and the Legal Committee, determined that the USACE Letter did

10 not meet the definition of “valid authorization.” AR II:365.

11 The Code provides that a permit may be issued for one buoy associated with a non-littoral

12 parcel where two things are shown: (1) that the buoy existed before 1972, and (2) that the buoy

13 has a valid authorization from an applicable state or federal agency. The record shows that TRPA

14 interpreted “valid authorization” to involve an authorization showing ownership of the buoy by

15 the parcel owner/applicant. AR II:228 and 366. TRPA’s interpretation of the Code provision is

16 subject to wide deference. An agency’s interpretation of its own regulation is “controlling unless

17 it is ‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 461

18 (1997); Public Lands for People v. Dept. of Agriculture, 697 F.3d 1192, 1199 (9th Cir. 2012);

19 Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006).

20 Here, the record shows that the USACE Letter confirmed that a buoy existed in the

21 location of the buoy in question as of 1968. AR I:7. However, the TRPA determined that the

22 letter was not evidence of ownership related to plaintiff’s non-littoral parcel. After the permit

23 application was denied by TRPA’s Executive Director on February 25, 2021, the Governing

24 Board granted plaintiff’s appeal to allow him another opportunity to prove his ownership of the

25 buoy. AR II:189, 227. Both plaintiff and TRPA agreed that plaintiff had (1) claimed ownership

26 of his parcel and (2) established that the buoy had been in the lake for a long time. However,

27 TRPA determined that there was no evidence of authorization by an agency for the placement of

28 the buoy by the parcel owner. AR II:189. The USACE Letter in the record showed that the buoy

1 had been in place since before 1972, but the letter could have been issued to any party or property

2 that requested the determination. AR II:228.

3 TRPA interpreted the second prong of Code section 84.3.3.D.3.b to require “non-littoral

4 property owners to show that they are, in fact, entitled to a mooring that was present before 1972

5 and that they received permission to anchor from an applicable state or federal agency with

6 jurisdiction at Lake Tahoe.” AR II:228. As noted in the staff report on the second appeal, there

7 are practical and policy reasons to hold non-littoral owners to a higher burden of proof that they

8 are entitled to the use of moorings on Lake Tahoe. Both Nevada and California State Lands

9 agencies do not favor individual non-littoral buoys. AR II:228. Under the Auer standard,

10 TRPA’s interpretation is not “plainly erroneous or inconsistent with the regulation.” 519 U.S. at

11 461. Accordingly, TRPA’s interpretation controls. See S &M Inv. Co. v. Tahoe Regional

12 Planning Agency, 702 F. Supp. 1471, 1472 (E.D. Cal. 1988). There is no remaining issue of

13 material fact, and TRPA is entitled to judgment on this claim.

14 V. Conclusion

15 Because defendants have properly requested judicial notice of public records, the motion

16 for judicial notice (ECF No. 21) is GRANTED.

17 Further, for the reasons explained above, IT IS RECOMMENDED that defendants’

18 motion for summary judgment (ECF No. 15) be GRANTED, that judgment be entered in favor of

19 defendants, and that this case be closed.

20 These findings and recommendations are submitted to the United States District Judge

21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days

22 after being served with these findings and recommendations, any party may file written

23 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a

24 document should be captioned “Objections to Magistrate Judge’s Findings and

25 Recommendations.” Any response to the objections shall be filed with the court and served on all

26 parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file

27 ////

28 ////

1 | objections within the specified time may waive the right to appeal the District Court’s order.

2 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57

3 | (th Cir. 1991).

4 IT IS SO ORDERED.

5 | DATED: January 24, 2023 ~

6 Cthten— Lape

ALLISON CLAIRE

7 UNITED STATES MAGISTRATE JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.