# Petition for Writ of Certiorari — Individuals for Responsible Government, Inc. v. Washoe County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 966

## Text

Supreme Court, U.S.
rT." Ps

97-269 AUG 1 1997

IN THE OF THE CLERK

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit

Nevada Corporation; JANICE BUSE;
HILARY BURSON; JUNE LINK, individuals,

No.

Petitioners,
VS.

WASHOE COUNTY, by and through

the Board of County Commissioners of

the County of Washoe; DIANNE CORNWALL,
Chairman; LARRY BECK, Vice Chairman;
GENE McDOWELL; STEVE BRADHURST;
INDEPENDENT SANITATION CO., INC.,

A Nevada corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI FROM
THE COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARC PICKER, ESQ.

ZEH, POLAHA, SPOO, HEARNE & PICKER
575 Forest St., Suite 200

Reno, Nevada 89509

702/323-5700

Attorney for Petitioner

(eens ee ee

QUESTIONS PRESENTED

l. WHETHER THE COURT OF APPEALS ERRED IN
FINDING A LACK OF STANDING OF INDIVIDUALS
FOR RESPONSIBLE GOVERNMENT, INC.

2 WHETHER THE CIRCUIT COURT FAILED TO
PROPERLY ADDRESS THE MANDATORY TRASH
COLLECTION ORDINANCE AND ITS COMPANION
FRANCHISE AGREEMENT VIOLATES THE
COMMERCE CLAUSE OF THE UNITED STATES
CONSTITUTION. |

3. WHETHER THE CIRCUIT COURT ERRED IN
FINDING THAT THE TAKINGS CLAUSE WAS NOT
VIOLATED BY THE MANDATORY RECYCLING FEE
CHARGED.

4. WHETHER THE CIRCUIT COURT ERRED IN FAILING
TO FIND THAT THE WASHOE COUNTY ORDINANCE
FAILS THE THREE-PART POLICE POWERS TEST.

TABLE OF CONTENTS
QUESTIONS PRESENTED

TABLE OF AUTHORITIES

<6 4. be ea oe ill
to ree ee 2
Pts gt tr eer a ae 3
CONSTITUTIONAL AND STATUTORY PROVISIONS .... 3
INVOLVED
SSALEOEENT OF TH CARE ow +s suk ene eee eee eee 3
REASONS FOR GRANTING Re EE 65 Aa ee 8
CKPRAARON 2 oo tne s bien se eee eee 26

Appendix A Order of the United States District Court for the
District of Nevada

Appendix B_ Opinion of the United States Court of Appeals for
the Ninth Circuit

Appendix C _ Plainuff Individuals for Responsible Government,
Inc.’s Cross-Motion for Summary Judgment

Appendix D Plaintiffs’ Memorandum of Points ana Authorities in
Opposition to Defendants’ Motions for Summary
Judgment and Supporting Plaintiffs’ Cross-Motion
for Summary Judgment

li

ee ae

| Appendix E

Appendix F

Appendix G

Appendix H

Affidavit of Darrel Reed in Support of Opposition to
Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs’ Cross-Motion for Summary
Judgment

Affidavit of Clara Fells in Support of Opposition to
Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs’ Cross-Motion for Summary
Judgment

Affidavit of Janice Buse in Support of Opposition to
Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs’ Cross-Motion for Summary
Judgment

Pertinent Statutes and Ordinances

iil

CASES PAGE

United States

C&A Carbone, Inc., v. Town of Clarkstown, . 15,17,19,20,21,26
511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 349 (1994)

City of Philadelphia v. New Jersey, ............0000.% 19
437 U.S. 617, 98 S.Ct. 2531 (1978)

Country Foods, Inc. v. Board of Educ. of Anchorage ..... 20
Sch. Dist., 952 F.2d 1173 (9 Cir. 1992)

CR Ve a NG ooo a a a pe ee ee 12
998 F.2d 1480 (9" Cir. 1992)

Guam Society of Obstetricians and Gynecologists v. ADA ... 13
100 F.3d 691 (9" Cir. 1996)

Hunt v. Washington State Apple Advertising Comm’n, ... 10,13
432 U.S. 333 (1977)

Individuals for Responsible Government, Inc. v. Washoe... . 2,9
County, 110 F.3d 699 (9" Cir. 1997)

Lake Mohave Boat Owners Ass’n v. National Park Service, .. 13
78 F.3d 1360 (9" Cir. 1994)

Lujan v. Defenders of Wildlife, .......cccccsseuces 10
504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)

POUR 9. Te te Aas Sa a Ee eae 18
477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986)

iV

a

Ree es Sa Bl Chee ee dG ak yt eet Cie vee 14
86 F.3d 155 (9® Cir. 1996)

NLRB v. Jones & Laughlin Steel Corp., ........... -. 17,26
301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937)

Oehrleins, Inc. v. Hennepin County ................. 15
922 F.Supp. 1396 (D.Minn. 1996)

Pacific Northwest Venison Producers v. Baker, .......... 18
20 F.3d 1008 (9" Cir. 1994)

Pane ¥. Es ok 5 eo ee 19
397 U.S. 137, 90 S.Ct.844, 25 L.Ed.2d 174 (1970)

United Food & Commercial Workers v. Brown Group, .... . 10
116 S.Ct. 1529 (1996)

Waste Management of Pennsylvania, Inc. v. Shinn, ....... 21
938 F.Supp. 1243 (D.N.J. 1996)

| Statutes/Codified Laws

| aE cnt ME EERE AES oe Prey 3,25
| TE PMD ss 6 ka ee hee ee ee eee 3
| ase hisinss a eee SECTOR. 3,23
| Washoe County Ordinance 838 .................... 3,7

Washoe County Ordinance 848

No.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit

Nevada Corporation; JANICE BUSE;
HILARY BURSON; JUNE LINK, individuals,

Petitioners,
VS.

WASHOE COUNTY, by and through

the Board of County Commissioners of

the County of Washoe; DIANNE CORNWALL,
Chairman; LARRY BECK, Vice Chairman;
GENE McDOWELL; STEVE BRADHURST;
INDEPENDENT SANITATION CO., INC.,

A Nevada corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI FROM

THE COURT OF APPEALS FOR THE NINTH CIRCUIT

TO THE HONORABLE PRESIDING JUSTICE AND
HONORABLE ASSOCIATE JUSTICES OF THE UNITED
STATES SUPREME COURT:

Petitioners INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit Nevada Corporation;
JANICE BUSE; HILARY BURSON; JUNE LINK, individuals,
hereby respectfully pray that a writ of certiorari issue to review the
judgment and Opinion of the United States Court of Appeals for
the Ninth Circuit affirming the decision of the United States
District Court for the District of Nevada to grant summary
judgment to the Respondents on the issue of constitutionality of
county ordinances governing mandatory garbage removal and fees
for the same.

OPINIONS BELOW

The unpublished Order of the United States District Court
for the District of Nevada appears in Appendix A to this petition.
The citation of the opinion of which review is sought in this Court
is 110 F.3d 699 (9" Cir. 1997). The Opinion appears in Appendix

B to this Petition.

JURISDICTION
The Opinion of the United States Court of Appeals for the
Ninth Circuit was filed April 1, 1997. The Order denying the
Motion for Rehearing and Suggestion of Appropriateness of
Rehearing En Banc was filed May 9, 1997.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Nevada Revised Statutes 244.187, 244.188, and 444.585
and Washoe County Ordinances 838 and 848 are attached as
Appendix H to this Petition.
STATEMENT OF FACTS
In April 1992, the Washoe County Commission amended
the Washoe County Code by adopting Ordinances 838 and 848
("Ordinances") to provide for mandatory collection of household
garbage from all residents in the unincorporated county. The

stated reason of County officials for imposing mandatory collection

was to eliminate or reduce illegal dumping in the unincorporated

portions of the County. The resultant main effects of the
Ordinances have been: (1) To eliminate freedom of choice for
county residents as to with whom they choose to do business, (2)
To increase the funds available to the County, (3) To create
additional financial burdens on the residents, (4) To create a
monopoly for Appellee Independent Sanitation, and (5) To result in
the seizure or impairment of their property.

The County purportedly enacted these Ordinances to
address the problem of increased dumping in the desert of trash and
garbage, but the County already has ordinances which prohibit the
dumping of trash, in addition to existing state and federal laws.
Citizens of Washoe County, including those who are members of
Petitioner INDIVIDUALS FOR RESPONSIBLE GOVERNMENT,
have attempted to assist the County in enforcing these anti-dumping
ordinances, but have received little cooperation or effort from the
County in doing so. Petitioner INDIVIDUALS FOR

RESPONSIBLE GOVERNMENT is a nonprofit Nevada

corporation formed by persons directly affected by the ordinances

in question for the purpose of addressing said ordinances and
bringing this chailenge. : | pur
In 1992, in response to citizen protests, an Illegal Dumping
Task Force was established by the Washoe County Commission
with the purpose of educating the public as to the need for proper
disposal of trash and garbage and to seek the assistance of the
public, law enforcement and health authorities and the judiciary to
enforce the anti-dumping ordinances and statutes. This Task Force
organized citizen watch programs to assist law enforcement and
health officials in apprehending those responsible for the illegal
dumping while its members met with law enforcement and judicial
officials to ensure that the efforts of private citizens to undertake a
significant role in eliminating or reducing illegal dumping would be
met with proper enforcement actions. The Task Force was assured
by both judicial and enforcement personnel that the full measure of
penalties provided by law would be sought in all cases of illegal
dumping. The actions and observations of private citizens working

in cooperation with the Task Force resulted in several persons

Ws

being apprehended, however, none of the individuals apprehended

“Teceived a fine exceeding one-quarter of the maximum imposed by
law.

The County showed limited interest in the enforcement of
its anti-dumping ordinances or the state laws on this matter. Illegal
dumps continue to proliferate within Washoe County. Few actions
have been prosecuted by County for the illegal dumping of trash,
and those few cited by the County in newspaper accounts only
highlight the continuing existence of the problem which the
contested Ordinances were supposed to cure.

Prior to the passage of the Ordinances, the citizens and
residents of Washoe County had no mandatory household pickup,
and the disposal of garbage was left to free and competitive market
forces and the initiative of the residents. Before the passage of
the first franchise for the County in 1967, citizens had the choice
of at least two services for the collection of their garbage and trash.

While a majority of the citizens chose to subscribe to a service

(which the County had chosen to limit to a monopoly in 1967),

approximately four thousand citizens declined to contract with

Respondent INDEPENDENT SANITATION. |

. eee
oe a

Residents of northern Washoe County took or take their
household garbage across state lines into California, for disposal in
the community of Susanville. This option was both more
convenient and cost effective, as northern Washoe County is
considerably closer to Susanville, California, than to the designated
Washoe County landfill in Lockwood, Nevada.

Appellants brought their action on July 21, 1994, in the
Second Judicial District Court of the State of Nevada in and for
Washoe County in the form of a Petition for Declaratory Relief,
seeking an order declaring unconstitutional the provisions of
Washoe County Ordinances 838 and 848. The matter was removed
to the United States District Court for the District of Nevada where
it was the subject of various motions and cross-motions for
summary judgment. United States Senior District Court Judge
Edward C. Reed decided the summary judgment motions in favor

of Respondents. Petitioners brought an appeal of the decision to

the Court of Appeals for the Ninth Circuit, which affirmed the
District Court’s decision after finding that the individual Petitioners
and INDIVIDUALS FOR RESPONSIBLE GOVERNMENT,
INC., lacked standing to sue under the “dormant commerce
clause.” The Ninth Circuit then affirmed the District Court's
remaining basis for its decision.

Petitioners thereafter filed a Motion for Rehearing and
Suggestion of Appropriateness of Rehearing En Banc on April 15,
1997. The motion was denied on May 9, 1997.

REASONS FOR GRANTING THE WRIT
1.
THE COURT OF APPEALS ERRED IN FINDING

A LACK OF STANDING OF INDIVIDUALS FOR

RESPONSIBLE GOVERNMENT, INC.

In its Opinion in this matter, the Court of Appeals for the
Ninth Circuit held that Petitioner INDIVIDUALS FOR
RESPONSIBLE GOVERNMENT, INC., did not have standing to
bring suit in this matter as the record in the case “does not specify

who are the members of Individuals for Responsible Government,

Inc., nor does it specify the organization’s purpose.” 110 F.3d at

— — Se ——

This is simply untrue and this holding overlooks the
pleadings and evidence reviewed in the district court’s decision,
including the Plaintiff's Memorandum of Points and Authorities in
Opposition to Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs Cross-Motion for Summary Judgment,
wherein it is noted that IRG’s members consist of citizens of
Washoe County who have “attempted to assist the county in
enforcing these anti-dumping ordinances, but have received little
cooperation or effort from the County in doing so.” These
conclusions are based upon the uncontroverted statements contained
within the Affidavit of Petitioner Janice Buse In Support of
Plaintiff's Memorandum of Points and Authorities in Opposition to
Defendants’ Motions for Summary Iudgment and Supporting
Plaintiff's Cross-Motion for Summary Judgment. Additionally, it
must be noted, that neither of the Respondents argued in their

Motions for Summary Judgment that Petitioner IRG was an entity

without standing nor that its purposes and membership did not meet
the provisions of United Food and Commerciat Workers v. Brown
Group, 116 §.Ct. 1529, 1534 (1996) or Hunt v. Washington State
Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).

In United Food and Commercial Workers v. Brown Group,
this Court delineated the basis upon which an association has
standing to bring suit on behalf of its members: When its members
would otherwise have standing to sue in their own right; when the
interests the association seeks to protect are germane to the
organization’s purpose; and when neither the claim asserted nor
relief requested requires participation of individual members in the
lawsuit. IRG meets each and every one of these requirements: Its
members clearly have standing, as the Ninth Circuit held; the
interests IRG seeks to protect are not only germane but almost the
sole purpose of the organization; and, the relief sought is that of
declaring the statutory scheme unconstitutional not for individual

monetary damages. See, 116 S.Ct. at 1534.

In addition, in Lujan v. Defenders of Wildlife, 504 U.S.

10

555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), this Court

addressed the “irreducible constitutional minimum of standing”

_ — a —

which requires that three elements be met:

First, the plaintiff must have suffered an “injury in
fact” — an invasion of a legally protected interest
which is (a) concrete and particularized, (citations
omitted); and (b) “actual or imminent, not
‘conjectural’ or hypothetical,’” (citations omitted).
Second, there must be a causal connection between
the injury and the conduct complained of — the
injury has to be “fairly ... trace[able] to the
challenged action of the defendant, and not ... th[{e]
result [of] the independent action of some third party
not before the court.” (Citations omitted) Third, it
must be “likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable
decision.” (Citations omitted)

504 U.S. at 560, 112 S.Ct. at 2136.

Again, IRG meets each of these criteria: The organization

through its individual members has in fact been harmed through the

imposition of mandatory garbage fees, legal actions for the

collections of such fees, fees for mandatory recycling and taking of

either the recyclable items and the members’ money through

mandatory fees. Second, the causal connection between the injury

1]

and the conduct complained of is obvious, clear and undisputed.

_ Finally, it is not only likely but.acertainty that the injury willbe. -
redressed and resolved if the mandatory garbage and recyclable
ordinances are struck down. Each of these elements has been
established through Petitioners’ pleadings in the lower court.

In addressing the issue of standing, the Ninth Circuit had
previously held that a union local has standing to sue on behalf of
its members where its Spanish-speaking members had standing
because they could claim injury due to the application of a unfair
labor policy, that the employees’ interest in the conditions of the
workplace was germane to the local’s purpose as a collective
bargaining agent for the employees and where the claim asserted
and relief requested do not require the participation of individual
members. Further, the union was only seeking injunctive relief
and not damages. See, Garcia v. Spun Steak Co,, 998 F.2d 1480
(9" Cir. 1992). This case is directly analogous to the situation in
this matter in that IRG is an association whose members could

claim injury (already determined by the Circuit’s Opinion), and

12

chosen members’ claims are germane to IRG’s purpose, that being
the representation of persons interested in the anti-dumping
oiiienis and the vin mendes trash collection ordinance.
Finally, IRG’s claims and relief do not require the participation of
individual members as the challenge to the ordinance affects all
citizens of Washoe County and not just the individual plaintiffs,
and the relief sought is to overturn the ordinance — not the
collection of damages.

In Lake Mohave Boat Owners Ass'n v. National Park
Service, 78 F.3d 1360 (9" Cir. 1994), the Ninth Circuit held that
association not to have standing pursuant to the requirements of
because the relief sought was in the form of damages which would
have had to have been determined on an individual basis with each
slip owner having to provide their own evidentiary proof.

Similarly, the Ninth Circuit granted standing to a non-profit
organization of nurses in Guam Society of Obsteincians and
Gynecologists vy. ADA, 100 F.3d 691 (9" Cir. 1996), despite the

13

nurses not being the direct target of the law in question. The
appellate court therein recognized the organization’s standing based
upon the defendant’s failure to demonstrate the nurses eta not be
subject to prosecution for assisting a licensed physician violating
the law even though the nurse would not be directly taking the
illegal actions. Again, IRG’s situation is similar as it sought to
challenge this statute which made its members’ actions illegal and
required them to pay for garbage collection whether it was used or
not.

In a most recent decision addressing the question of
organizational standing, the Ninth Circuit held that where a district
court assumes arguendo that plaintiffs had sufficiently pleaded
sufficient injury to satisfy the question of standing, the circuit court
will also do so. In Medina v. Clinton, 86 F.3d 155 (9" Cir. 1996),
it was held that where the remedy sought would not redress the
alleged injury of the plaintiffs, then standing did not exist. In
IRG’s case, the remedy sought goes to the very heart of the injury

alleged.

14

On the subject of standing under the dormant Commerce
Clause provisions, other courts have applied this Court’s opinion in
C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389,
114 §.Ct. 1677, 1681-1682, 128 L.Ed.2d 399 (1994), to reach the
question of heightened scrutiny in reviewing such matters. In Ben
Oehrleins, Inc. v. Hennepin County, 922 F.Supp. 1396 (D.Minn.
1996), the district court noted that the plaintiff therein had standing
to raise a Commerce Clause claim after it showed it had been
involved in the business of shipping waste and that several
plaintiffs had been fined. Analogously, Petitioners have been the
subject of enforcement actions to impose the fees in question and
were and are effected by the ongoing nature of the ordinance and
associated fees.

In order to show standing under the dormant Commerce
Clause provisions, a plaintiff must show that he has suffered an
injury in fact caused by the challenged activity which can be
redressed by the court, and the must show that he falls within the

zone of interest sought to be protected by the Commerce Clause.

15

Petitioner IRG, its members, and the individual Petitioners have
met these burdens. They are injured in fact and the activity can be
redressed by this Court (see above), and they fall within the zone
of interest due to the effect of the mandatory garbage and recycling
provisions of the ordinance. Petitioners must pay for such
services, even if they never utilize such services. Petitioners are
being “taxed” for a service that they had previously provided at a
cheaper rate across the state line into California. They are being
prevented from utilizing interstate commerce by these mandatory
fees.

The Circuit Court failed not only to follow the established
case law of this Court, it failed to follow its own prior decisions.
Based upon all of the above, the organization and the individual
Petitioners should have been found to have sufficiently met the
standing requirements.

2.
THE CIRCUIT COURT FAILED TO PROPERLY ADDRESS

THE MANDATORY TRASH COLLECTION ORDINANCE
AND ITS COMPANION FRANCHISE AGREEMENT

16

VIOLATES THE COMMERCE CLAUSE OF THE UNITED
STATES CONSTITUTION

It is well settled that actions are within the domain
of the Commerce Clause if they burden interstate
~—com-=ierce or Hnpede its free flow. _NLRBv. Jones. _ 4

& | ighlin Steel Corp., 301 U.S. 1, 31, 57 S.Ct.
615, 81 L.Ed. 893 (1937).

C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389,
114 §.Ct. 1677, 1681-1682, 128 L.Ed.2d 399 (1994).

The collection, transportation and disposal of

garbage is beyond doubt an act of commerce. ...

[W]hat makes garbage a profitable business is not its

own worth, but the fact that its possessor must pay

to get rid of it. In other words, the article of

commerce is not so much the solid waste itself, but

rather the service of processing and disposing of it.
Carbone, 114 S.Ct. at 1682.

Restrictions on the disposal of trash do reach interstate
commerce. The effect of these ordinances is to reserve an area of
commerce for a favored local operator. This Court has already
spoken as to the scrutiny with which such ordinances should be

reviewed. Carbone, supra, at 1683.

Discrimination against interstate commerce is per se
invalid, save in the narrow class of cases in which

17

the municipality can demonstrate that, under
rigorous scrutiny, that it has no other means to
advance a legitimate local interest.

Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440. 91 L.Ed.2d 110
——~ (1986). . —

As held in Pacific Northwest Venison Producers v. Baker,
20 F.3d 1008 (9th Cir. 1994), “the state has the burden of
establishing that a legitimate state interest unrelated to economic
protectionism is served by the regulations that could not be served
as well by less discriminatory alternatives.” (Citing Maine v.
Taylor, 477 U.S. at 138.)

The IRG/Washoe County matter presents a situation very
similar to that presented in Carbone, in which a single favored
local operator is granted an exclusive market, in which no other
party, local or interstate may compete. Carbone, supra, at 1683.
Such an ordinance deprives both in-state and out-of-state businesses
of access to the local market, and denies freedom of choice and
contract to the citizens resident in Washoe County.

The purported purpose of the contested Ordinances and the

18

granting of a monopoly franchise could have been achieved through
the less intrusive avenue of enforcement of existing regulations,
ordinances and statutes. This Court has stated an action is within
the scope of the Commerce Clause if it burdens interstate
commerce or impedes its flow. This Court has held that two lines
of analysis may be applied to determine whether an action violates
the Commerce Clause:

[F]irst, the action discriminates against interstate

commerce, City of Philadelphia v. New Jersey, 437
U.S. 617, 625, 98 S.Ct. 2531, 2535 (1978); and

second the action imposes a burden that is “clearly

excessive in relation to the putative local benefits.”

Pike v. Bruce Church, 397 U.S. 137, 90 S.Ct. 844,

25 L.Ed.2d 174 (1970)

Carbone, supra, at 1682.

In Carbone, this Court held that the township had a variety
of nondiscriminatory alternatives for resolving health and
environmental problems that should have been exhausted prior to
creating a monopoly for the handling of trash. “The most obvious

would be uniform safety regulations enacted without the object to

discriminate. These regulations would ensure that competitors like

19

BE TOES. Pen ©

Carbone do not underprice the market by cutting corners.”
Carbone, supra, at 1683.

In light of the failure of the mandatory garbage collection
ordinances and monopoly franchise to achieve the stated goals,
there is no adequate justification for the elimination of competition
and the interference with personal freedoms.

In its Opinion, the Ninth Circuit failed to address this legal
question, holding that the Petitioners lack standing to raise this
challenge. The panel failed to properly consider the Petitioners’
standing, as seen above, and now the Court must address both the
legal questions raised in C&A Carbone, Inc., v. Town of
Clarkstown, N.Y., 511 U.S. 383 (1994). Additionally, the
position of Petitioners is most closely aligned to that in Big

Country Foods, Inc. v. Board of Educ, Of the Anchorage Sch.

~

Dist., 952 F.2d 1173 (9" Cir. 1992), in which the Circuit Court
held that where regulatory measures are designed to benefit in-state
economic interests by burdening out-of-state competitors, they are

prohibited by the dormant commerce clause.

20

Other courts have applied the Carbone decision, and each
have initially questioned the prima facie basis for the plaintiff's
case before shifting the burden to the defendant.

Once a state law is shown to discriminate against

interstate commerce either on its face or in practical

effect, the burden falls upon the state to demonstrate
both that the law serves a legitimate local purpose

and that such purpose could not be served by less

restrictive means. ... Attempts to fit this narrow

exception must be rejected absent the clearest

showing that the unobstructed flow of interstate
commerce itself is unable to solve the local problem.

Waste Management of Pennsylvania, Inc., v. Shinn, 938 F.Supp.

1243, 1255 (D.N.J. 1996), citing Carbone, 114 S.Ct. at 1683.

3.
THE CIRCUIT COURT ERRED IN FINDING THAT THE
TAKINGS CLAUSE WAS NOT VIOLATED BY THE
MANDATORY RECYCLING FEE CHARGED
The Ninth Circuit opined that the mandatory recycling fee
charged by exclusive franchisee and Respondent Independent

Sanitation is the equivalent of a mandatory property tax for the

purposes of school support, even upon persons with no children.

21

This would be a reasonable position if the panel had not overlooked
a key fact — the mandatory recycling fee was not approved by the
electorate. The fee was put into place by a company which is
basically unregulated but which holds a monopoly.

In fact, the appellate panel overlooked a more integral fact
— that the monopoly created was also never approved by the
electorate nor was the very idea of creating such a monopoly.
While some public hearings were held, the stated purpose of the
ordinance — to reduce dumping of garbage in the outlying areas of
Washoe County — has failed miserably as was explained without
argument in Petitioners’ pleadings and supporting affidavits. The
ordinance is inappropriate for the purpose upon which it is based.
The panel overlooked the fact that each of the individual Petitioners
and IRG’s other, unnamed, members each suffer an ongoing
assessment of $1.25 per month as a result of this ordinance.

The franchise agreement entered into by Respondent
Washoe County allows Respondent Independent Sanitation to bill

all individuals for the collection of recyclables, whether or not any

22

collection is made. The Nevada State Legislature has put into place
a statute which transfers ownership in recyclable materials to a
curbside collection agency when such materials are set out for
collection at the curbside or at another appropriate site designated
for collection. See, Nevada Revised Statute 444.585.1(a) and (b).
The obvious and common sense inference is that the ownership of
these materials remains with the citizenry until such time as they
surrender their interest.

Thus, the recognized property interests of Petitioners and
other like situated parties in recyclable materials, as recognized in
N.R.S. 444.585, are now subjected to a governmental taking by
the imposition of the mandatory assessment in favor of Respondent
Independent Sanitation and implicitly approved by Respondent
Washoe County. This fee is required to be paid to Respondent
Independent Sanitation for mandatory involvement in a curbside
recycling program whether recyclable materials are deposited at the
curbside or not. The utilization of such a program requires the

voluntary surrender of property nghts to the Respondent

23

;
4

franchisee, who may profit from the subsequent resale of the
recycled goods. However, the citizens of Washoe County are
obligated to pay Respondent Independent Sanitation even if those
citizens, including Petitioners, choose to retain their own property.

The mandatory collection of recyclable materials and the
imposition of a fee for such service serves no purpose other than to
limit competition and thereby increase the profits of Respondent
Independent Sanitation and to impose a hidden tax through the fees
paid by Respondent Independent Sanitation to Respondent Washoe
County. By virtue of this imposition, the County is confiscating
the property of its citizens, in a manner that is effectively a heavy
tax on recyclables within unincorporated Washoe County.

4.

THE CIRCUIT COURT ERRED IN FAILING TO FIND
THAT THE WASHOE COUNTY ORDINANCE FAILS
THE THREE-PART POLICE POWERS TEST

While the district court was correct in its standard, both it

and the Circuit Court overlooked facts which show that the

ordinances in question fail the three-part police powers test each

24

court quoted.

While the ordinance are aimed at serving some legitimate
purpose and are rationally related to that purpose, the county
government overstepped its authority as granted by the state. The
State law in question, Nevada Revised Statutes 244.187 requires a
balancing test to show that the collection and disposal of garbage or
other waste be performed in a manner that is “adequate, economical
and efficient” and that it “promote[s] the general welfare.” As
Petitioners showed in their evidence, these criteria were not met.

The ordinances permit the creation of a nearly unregulated
monopoly which imposes mandatory fees upon persons who do not
use the service, as well as upon those who do. Additionally, there
is allowed a non-voter approved “tax” which requires payment for
removal of property — recyclable items — without providing for
any compensation to the citizen from whom the property is taken.
While the citizens do not have to use the services of the recyclable

pickup, they must still pay — and then their money is the only

thing being “taken.”

wy 2h

It is well settled that actions are within the domain
of the Commerce Clause if they burden interstate
commerce or impede its free flow. NLRB v. Jones

, 301 U.S. 1, 31, 57 S.Ct.

615, 81 L.Ed. 893 (1937).
C&A Carbone, Inc. vy. Town of Clarkstown, --- U.S. --, 114 S.Ct.
1677, 1681-1682, 128 L.Ed.2d 399 (1994).

The collection, transportation and disposal of

garbage is beyond doubt an act of commerce.

[W]hat makes garbage a profitable business is not its

own worth, but the fact that its possessor must pay

to get rid of it. In other words, the article of

commerce is not so much the solid waste itself, but

rather the service of processing and disposing of it.
Carbone, supra, at 1682.

CONCLUSION

Based upon all of the foregoing, the United States Supreme
Court should issues a Writ of Certiorari in order to review this
matter and the decisions and orders issued by the United States

District Court for the District of Nevada and the Circuit Court of

Appeals for the Ninth Circuit.

26

Respectfully submitted this 29" day of July, 1997.
Respectfully Submitted,

ZEH, POLAHA, SPOO, HEARNE & PICKER

J /
By: A a

MARC PICKER, ESQ. *
Attorney for Petitioner

27

)

No.

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit

Nevada Corporation; JANICE BUSE;
HILARY BURSON; JUNE LINK, individuals,

Petitioners,
VS.

WASHOE COUNTY, by ard through

the Board of County Commissioners of

the County of Washoe; DIANNE CORNWALL,
Chairman: LARRY BECK, Vice Chairman,
GENE McDOWELL; STEVE BRADHURST;,
INDEPENDENT SANITATION CO., INC.,

A Nevada corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI FROM
THE COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDICES TO PETITION

MARC PICKER, ESQ.

ZEH, POLAHA, SPOO, HEARNE & PICKER
575 Forest St., Suite 200

Reno, Nevada 89509

702/323-5700

Attorney for Petitioner

APPENDIX A

U.S. DISTRICT COURT
DISTRICT OF NEVADA
ENTERED & SERVED

OCT 16 1995

CLERK, U.S. DISTRICT COURT
BY _/s/ DEPUTY

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., et al.,

Plaintiffs, CV-N-94-526-ECR
VS
WASHOE COUNTY, et al., ORDER
Defendants.

/

The court now rules on Defendants’ Motions for Summary
Judgment (Docs. ##16, 17) and on Plaintiffs’ Cross-Motion for
Summary Judgment (Doc. #18)

This is an action for declaratory judgment. Plaintiffs allege

that certain Washoe County ordinances relating to the collection of

garbage are unconstitutional, and seek such a declaration from this
court. The claim is that the ordinances violate the Commerce and
Due Process Clauses of the Constitution of the United States.

Plaintiffs claim that the ordinances exceed Defendant Washoe
County’s police power. Plaintiffs express dissatisfaction with
Washoe County’s failure to make findings that its exclusive contract
with ISC was more beneficial than some other means of collecting the
county’s trash. Plaintiff decries the lack of “evidence” that the
franchise serves its purpose. Plaintiff further complains that the local
ordinance was not “narrowly tailored.” This court is not the
appropriate body to which to address plaintiffs’ complaint regarding
the wisdom of the county’s decision. If the ordinance was (1) within
the scope of the authority granted the county by the state
government, (2) aimed at serving some legitimate public purpose and
(3) rationally related to that purpose, this court will not second-guess
the county government. See L&H Sanitation, Inc., v. Lake City

Sanitation, Inc., 769 F.2d 517, 522 (9" Cir. 1985).

The State of Nevada has explicitly granted local governments

the authority to grant exclusive garbage collection franchises. Nev.
Rev. Stat. §§244.187, 244.188. Plaintiffs’ police power agrument is
therefore without merit.

Plaintiffs rely on the United States Supreme Court’s recent
decision in C&A Carbone, Inc. v. Town of Clarkstown, 114 S.Ct.
1677 (1994), to bolster their Commerce Clause objection to Washoe
County’s decision to grant Defendant Independent Sanitation Co.,
Inc. (ISC) an exclusive waste collection franchise. Their reliance is
ill-founded: Carbone struck down a local ordinance whose primary
purpose was the generation of revenue for the benefit of the local
waste-processor. As such, the ordinance in Carbone was analyzed
under the more rigorous of the two prevailing Commerce Clause
tests.

The Ninth Circuit recently distinguished the two approaches:
“If the primary purpose of the regulation is to regulate interstate
commerce and thus to invade the province of Congress, or if the

regulation favors in-state interests over out-of-state interests, then it

will generally be subject to rigorous constitutional scrutiny. If,

however, the regulation in question is designed to address a
legitimate local concern and incidentally affects interstate commerce,
we must use the Pike balancing test ....” Kleenwell Biohazard Waste

and Gen. Ecology Consultants, Inc.. v. Nelson, 48 F.3d 391, 398 (9"

Cir. 1995).

The Commerce Clause “balancing test” derives from the
decision of the Supreme Court in Pike v. Bruce Church, 397 U:S.
137 (1970). Pike recognized that “incidental burdens on interstate
commerce may be unavoidable when a State regulates to safeguard
the health and safety of its people.” City of Philadelphia v. New
Jersey, 437 U.S. 617, 623-24 (1978). A challenged regulation which
even-handedly serves a legitimate local public interest, and affects
interstate commerce only incidentally is now unconstitutional “unless
the burden imposed upon [interstate] commerce is clearly excessive in
relation to the putative local benefit.” Pike, 397 U.S. at 142.

Few local public interests can claim greater legitimacy than
the interest in managing the garbage output of a community. It is this

very interest which the state statute and local ordinance at issue here

are designed to serve. It is simply beyond question that (1) the state
in plain language authorized Washoe County to enter into exclusive
franchise agreements for the disposal] of garbage, (2) efficient garbage
disposal is a legitimate public interest, and (3) the county’s grant of
an exclusive franchise to ISC is rationally related to that interest.
Since it cannot be said that Washoe County’s scheme imposes a
burden on interstate commerce that is clearly excessive in relation to
the putative local benefits, see Pike, 397 U.S. at 142, the conclusion
that the statute and ordinance do not violate the Commerce Clause is
therefore inescapable

Carbone struck down a scheme whereby all local waste
haulers were forced to do business with the local processing facility.
Plaintiffs seize upon the superficial similarity between the waste
processor in Carbone and ISC in the present case. All Washoe
County residence and business must, under the challenged ordinance,
subscribe to ISC’s service. There, however, the parallel ends. In

Carbone, the cost of the service was inflated in order for the

government to recoup its investment in the facility. In the present

SEAS Se

situation, there is no evidence that the county’s purpose is anything
other than efficient sanitation. Moreover, there is not even the hint of
discrimination against out-of-state businesses. The county makes not
distinction between local and non-local businesses. Plaintiffs
themselves acknowledge as much when they assert that the
“ordinance deprives both in-state and out-of-state businesses of
access to the local market.” Plaintiff's Memorandum of Points and
Authorities in Opposition to Defendants’ Motions for Summary
Judgment and Supporting Plaintiffs’ Cross-Motion for Summary
Judgment, Doc. #19, Page 5. All persons and businesses who
generate trash in Washoe County must dispose of it through ISC.

It strains credulity to read Carbone so as to deprive local
governments the authority to delegate the collection of trash to a
private entity, at least where the local government’s interest relates
solely to health and safety, and not to the preservation of revenue
sources. Were it otherwise, vast numbers of municipalities and
county governments would find themselves unable to provide for the

collection of trash. This court is loath to attribute such an intention

on the part of the Carbone Court.

Plaintiffs’ due process and takings claims are similarly
meritless. The Due Process and Just Compensation Clauses do not
limit the power of local governments to provide for the collection and
disposal of trash. California Reduction Co. v. Sanitary Reduction
Works, 199 U.S. 306 (1905); Michigan v. Gardner, 199 U.S. 325
(1905) (both cited in USA Recycling Inc. v. Babylon, New York, 64
U.S_L.W. 2186 (2d Cir. 1995)). Both those early cases upheld the
validity of local ordinances granting exclusive franchises to private
trash collection entities. As the Second Circuit observed in USA
Recycling, if all exclusive trash collection franchises were held
unconstitutional, thousands of municipalities would henceforth be
unable to undertake the traditional government function of collecting
garbage._USA Recycling, 64 U.S.L.W. at 2187

Plaintiffs’ claim that the imposition of county-wide recycling
fees subjects them to an uncompensated taking is almost too frivolous

to deserve comment. Plaintiff argues that by forcing even those

citizens who refuse to recycle their glass, aluminum or paper waste to

contribute to the recycling program, the county deprives them of
property without compensation, in violation of the Fifth Amendment
to the U.S. Constitution. The argument is utterly without merit.
Under this reasoning, a citizen who refrains from telephoning the
local fire department when her lawn catches fire, and chooses instead
to fight the blaze herself, should be exempt from that portion of her
local tax assessment used to maintain the fire department. Plaintiff's
conclusory allegation that the imposition of the recycling program
and the collection of fees for its maintenance “serve[] no purpose
other than to limit competition and thereby increase [ISC’s profits]”
is not worthy of refutation. Recycling programs are unquestionably a

legitimate function of local governments, despite Plaintiff's
objections.
IT IS THEREFORE ORDERED that Defendants’ Motions
for Summary Judgment (Docs. ##16, 17) are hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Cross-Motion
for Summary Judgment (Doc. #18) is hereby DENIED

IT IS FURTHER ORDERED that the Clerk shall enter

———— ae ee

judgment accordingly.

DATED: October 11, 1995.

A RN eee
UNITED STATES DISTRICT JUDGE

APPENDIX B

INDIVIDUALS FOR RESPONSIBLE GOVERNMENT INC., a
non-profit Nevada corporation; JANICE BUSE, HILARY
BURSON; JUNE LINK, individuals, Plaintiffs-Appellants,

vs

WASHOE COUNTY, By and through the Board of County
Commissioners of the County of | Washoe; DIANNE
CORNWALL, Chairman; LARRY BECK, Vice Chairman; GENE
McDOWELL; STEVE BRADHURST, INDEPENDENT
SANITATION CO., INC., a Nevada corporation,
Defendants-Appellees.

No. 95-17264

United States Court of Appeals,
Ninth Circuit
Submitted* Feb. 14, 1997
Decided April 1, 1997

* The panel finds this case appropriate for submission without
argument pursuant to 9th Cir. R. 34-4 and Fed. R. App. P. 34(a).

Appeal from the United States District Court for the District of
Nevada. D.C. No. CV-94-00526-ECR. Edward C. Reed, Jr., District
Judge, Presiding.

Marc Picker, Reno, Nevada, for the plaintiffs-appellants.

Melanie Foster, Deputy District Attorney, Reno, Nevada; Frank
Cassas, Marshall Hill Cassas & de Lipkau, Reno, Nevada, for the

defendants-appellees.

Before: Joseph T. Sneed, Edward Leavy, and Sidney R. Thomas,

1U

Circuit Judges.
SNEED, Circuit Judge:

As happens from time-to-time, this is a case with simple facts
whose resolution involves complex legal doctrines. In 1991 and 1992,
defendant/appellee Washoe County enacted ordinances that, inter
alia, require residents in certain unincorporated areas of the County
to subscribe to a garbage collection and disposal service offered by
defendant/appellee Independent Sanitation Co., Inc.
Plaintiffs/Appellants Individuals for Responsible Government Inc.,
Janice Buse, Hilary Burson and June Link claim that these ordinances
violate Nevada statutes and the Commerce Clause of the United
States Constitution. They also claim that the County's curbside
recycling program violates the Takings Clause of the United States
Constitution. The district court granted summary judgment in favor
of defendants/appellees on all counts. We affirm
I
BACKGROUND

Washoe County, Nevada, like many other environmentally

ot BPR TR TS i ESC Is OLS Rete NP Oe EE LA SENDS 1 SA OD DO

concerned communities, confronts a problem stemming from the
illegal dumping of trash at sites other than approved dump sites. In
response to this problem, the Board of County Commissioners
("Commissioners"), in November 1991, enacted ordinance 838 to
amend chapter 90 of the County Code. Ordinance 838 provides that
the County and its authorized agents or contractees "have the
exclusive right to gather, collect and haul garbage" in certain
unincorporated areas in Washoe County. It also provides that "every
owner of real property who accumulates or causes the accumulation
of garbage . . . must subscribe to the [services for] collection, hauling
and disposal of garbage" provided by the county through Independent

Sanitation Co., its exclusive franchisee. nl

nl By means of a contract dated April 14, 1992, the County
granted Independent Sanitation an exclusive franchise to "operate all
garbage collection and disposal services in the unincorporated areas"
of Washoe County. The April 1992 contract amended an earlier,

similar contract that had been in force since 1983.

In April 1992 the Commissioners enacted ordinance 848,
which further amends chapter 90 of the County Code. Ordinance 848
creates an exemption from mandatory subscription to Independent
Sanitation's garbage service for those owners and occupants of
residential dwelling units who prefer to dispose of their own garbage.
To qualify for such an exemption, these residents must haul their
garbage "to an approved disposal site not less than every 7 calendar
days." Independent Sanitation maintains the right to bill, on a
quarterly basis, those who have been exempted. However, an exempt
resident need not pay the bill provided that he submits to Independent
Sanitation "receipts or other proof showing that he has disposed of
his garbage at an approve [sic] disposal site for each week within the
previous quarter."

The enforcement of ordinances 838 and 848 encountered
difficulties. Prior to their passage, approximately 12,000 of Washoe
County's 16,000 rural households subscribed to Independent

Sanitation's garbage service, while approximately 4000 rural residents

13

a hiv cin es E23

elected to dump their own trash. There are two legal dump sites in
Washoe County, Nevada: the "Lockwood" landfill, located east of
Reno, and the "Reno transfer station," located in the city of Reno.
Independent Sanitation and its affiliate Reno Disposal Co. maintain
and operate both dump sites. Despite these legal dumping options
within Washoe County, prior to enactment of ordinances 838 and 848
many county residents preferred to dispose of their household
garbage in California because the dump sites in Susanville and
Portola, California were more convenient and cost effective than the
options available in Washoe County.

In response to ordinance 848, approximately 400 residents
received exemptions from mandatory collection, allowing them to
dispose of their own garbage. However, some who initially obtained
exemptions later had their exemptions revoked for failure to provide
receipts documenting their weekly disposal of garbage. As of August,
1993, Reno Disposal Co. had filed suit in small claims court against
72 Washoe County residents who had failed to pay for their garbage

service. Those subjected to suit included at least one person who

tS

refused to pay after his exemption was revoked.

Appellant June Link, among others, was angry about being
brought into court and ordered to pay for a service that she neither
wanted nor believed she needed. Appellants Hilary Burson and Janice
Buse also object to being forced to pay for a service they do not
want. Hence, in July 1994, appellants filed suit in state court, seeking
a declaratory judgment that ordinances 838 and 848 are
unconstitutional. Appellees removed the case to federal district court
and filed motions for summary judgment. The district court granted
appellees’ motions for summary judgment in October, 1995.
Appellants timely appealed.

II.
STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C. @ 1331
and @ 1441. This court has appellate jurisdiction pursuant to 28
U.S.C. @ 1291. The district court's grant of summary judgment is
reviewed de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir

1996).

15

ee a

Il.
THE DORMANT COMMERCE CLAUSE

Appellants claim that ordinances 838 and 848 violate the
so-called "dormant" Commerce Clause, which limits the power of
states to regulate interstate commerce. Their argument rests on
invoking the possible claims of the operators of the California dump
sites who are not parties in this proceeding. Such claims might rest on
the Supreme Court's decision in C&A Carbone, Inc. v. Town of
Clarkstown, N.Y., 511 U.S. 383 (1994), in which an ordinance that
required "all solid waste to be processed at a designated transfer
station before leaving the municipality," id. at 386, violated the
Commerce Clause because it discriminated against interstate
commerce by depriving competitors, including out-of-state firms, of
access to a local market. Id. at 389. Their argument appears to be
that the ordinance interferes with interstate commerce by preventing
them from utilizing dump sites outside the State of Nevada. While we
have serious reservations about the strength of this argument, we do

not reach the merits of such a claim. Instead, we hold that appellants

lack standing to raise a dormant Commerce Clause challenge.

First, appellant Individuals for Responsible Government, Inc.
is a Nevada nonprofit corporation which appears to lack substance.
An association, it is true, has standing to bring suit on behalf of its
members when: "(a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to protect are germane
to the organization's purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual members in
the lawsuit." United Food and Commercial Workers v. Brown
Group, 116 S. Ct. 1529, 1534 (1996) (quoting Hunt v. Washington
State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977)).
However, the record in this case does not specify who are the
members of Individuals for Responsible Government, Inc., nor does it
specify the organization's purpose. Absent both purpose and
members, it lacks any standing to sue.

The individual plaintiffs, Janice Buse, Hilary Burson, and June
Link, lack standing to sue under the "dormant commerce clause." We

shall address both the constitutional and prudential requirements for

17

standing to bring this claim.
A. Constitutional Requirements

“The irreducible constitutional minimum of standing contains
three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). These are that the plaintiffs must have suffered an injury in
fact: that there be a causal connection between the injury and the
conduct complained of; and that it be likely that the injury will be
redressed by a favorable decision. Id. at 560-61.

Individual plaintiffs have met these requirements. They allege
that Independent Sanitation has "been aggressively utilizing legal
processes to force" them to pay for unwanted garbage collection
services. In other words, they have been ordered to pay the bill for a
service they do not want. That satisfies the "injury-in-fact"
requirement. Moreover, there is a direct causal link between
enactment of the challenged ordinances and the fact that appellants
have been forced to pay for unwanted garbage collection services.
Finally, a declaration that the ordinances are unconstitutional would

clearly redress their injuries. Therefore, all three individual appellants

18

meet the minimal constitutional standing requirements.
B. The Prudential Requirements

Apart from the constitutional requirements for standing, there
is also a set of prudential principles that bear on the question of
standing. Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 474 (1982). One
such prudential principle is that the plaintiff's complaint must "fall
within the zone of interests to be protected or regulated by the statute
or constitutional guarantee in question." Id. at 475 (quoting
Association of Data Processing Service Orgs. v. Camp, 397 U.S
150, 153 (1970)). The so-called "zone of interests" test "denies a
night of review if the plaintiff's interests are . . . marginally related to
or inconsistent with the purposes implicit in the [relevant
constitutional provision]." Wyoming v. Oklahoma, 502 U.S. 437, 469
(Scalia, J., dissen.. 1g) (1992) (quoting Clarke v. Securities Industry
Assn., 479 U.S. 388, 399 (1987)).

The Supreme Court has applied the zone of interests test most

frequently in suits brought under the Administrative Procedure Act.

19

rae ae ee cP ae aaa

| :

| See, e.g., Air Courier Conference of America v. American Postal
Workers Union, 498 U.S. 517 (1991); Clarke, 479 U.S. 388.
However, the zone of interests test also "governs claims under the
Constitution in general, and under the negative [dormant] Commerce
Clause in particular." Wyoming, 502 U.S. 437, 469 (Scalia, J.,
dissenting) (citing Valley Forge, 454 U.S. at 475, and Boston Stock
Exchange v. State Tax Comm'n, 429 U.S. 318, 320-21, n.3 (1977)).

To ascertain whether appellants have standing to raise the
dormant Commerce Clause challenge in the present case, it must be
determined whether their interests bear more than a marginal
relationship to the purposes underlying the dormant Commerce
Clause. The chief purpose underlying that Clause is to limit "the
power of the States to erect barriers against interstate trade." Dennis
v. Higgins, 498 U.S. 439, 446 (1991). The appellants’ injury,
however, is solely that Washoe County's garbage collection ordinance
forces them "to pay for unnecessary and unwanted garbage services."
That is an injury not even marginally related to the purposes

underlying the dormant Commerce Clause

20

Appellants primary contention is that ordinances 838 and 848
impose a barrier to interstate commerce by creating regulatory
obstacles for residents of Washoe County who, prior to enactment of
the ordinances, transported their garbage across state lines for
disposal at the dump sites in Susanville and/or Portola, California.

The facts offered in support of this contention are these. Prior
to enactment of the ordinances, approximately 4000 residents of
Washoe County chose to dump their own garbage, rather than
utilizing Independent Sanitation's collection service. After enactment
of the ordinances, the county issued about 400 permits exempting
residents from the mandatory garbage collection requirement. Thus,
as a result of the ordinances, Independent Sanitation gained about
3600 new customers. Since Independent Sanitation operates two
dump sites in Washoe County, it is reasonable to infer that the
garbage of all 3600 new customers is now being dumped in Nevada.
Prior to enactment of ordinances 838 and 848, some unspecified
number of those 3600 customers were dumping their garbage in

California.

21

2 ea ed a i ade

Insofar as they receive garbage from Nevada, the operators of
dump sites in California are engaged in interstate commerce. See
Carbone, 511 U.S. at 389; Philadelphia v. New Jersey, 437 U.S. 617,
621-23 (1978). Because these ordinances have had the effect of
reducing the flow of garbage from Nevada to California, they have
imposed a small barrier to interstate commerce.

But even on the implausible assumption that all 3600 new
customers previously dumped their garbage in California, we hold
that the appellants would still not satisfy the prudential "zone of
interests test" set forth in Valley Forge Christian College, supra
Their injury (being forced to pay for services they do not want)
would exist even if Independent Sanitation were to dump all the
garbage it collects from Nevada across the state line in California.
Under those circumstances, the Washoe County ordinance would
impose no barrier to interstate commerce. Thus, the appellants’
interests are, at best, "marginally related to . . . the purposes implic.*
in" the dormant Commerce Clause. Clarke, 479 U.S. at 399.

Therefore, appellants lack standing to raise a Commerce Clause

22

challenge boomin their complaint is not “within the zone of interests
to be protected" ™ that Clause. Camp, 397 U.S. at 153.
IV.
TAKINGS CLAUSE

Although ordinances 838 and 848 are silent with respect to
recycling, Independent Sanitation, in its exclusive franchise
agreement with Washoe County, has undertaken an obligation to
provide a curbside recycling service for all residential customers.
Independent Sanitation bills its customers $ 1.25 per month for the
recycling service, even if they never use the service. Appellants allege
that they have a property interest in recyclable materials, as
recognized in Nevada Revised Statutes section 444.585. Appellants
further allege that the curbside recycling program constitutes a taking
of private property for public use without just compensation, in
violation of the Takings Clause.

Appellants’ argument is without merit. Independent

Sanitation's curbside recycling service cannot be considered a

"taking" of recyclable materials, because residents have no obligation

23

to utilize that service. Residents can legally choose to deliver their
recyclable materials to recycling centers, or not to recycle at all. Nor
is the $ 1.25 per month service charge a taking. The service charge is
essentially equivalent to a general property tax targeted to fund a
specific county-wide service. Hence, it is analogous to a school tax
that property owners are required to pay, even though their children
do not attend public schools. Such property taxes are not "takings,"
within the meaning of the Takings Clause.
V.
NEVADA STATUTORY CLAIM
Appellants' statutory claims are based on Nevada Revised
Statutes 244.187 which provides that "[a] board of county
commissioners may, to provide adequate, economical and efficient
services to the inhabitants of the county and to promote the general
welfare of those inhabitants, displace or limit competition in . . . [the]
collection and disposal of garbage and other waste." Appellants
contend that Washoe County's mandatory garbage collection plan is

not "adequate, economical and efficient," and that it does not

24

"promote the general welfare." Therefore, appellants contend,
Washoe County has exceeded its police powers, and the authority
granted to it by NRS 244.187.

In response to this argument, the district court stated:

This court is not the appropriate body to which to address
niaintiffs' complaints regarding the wisdom of the county's decision. If
the ordinance was (1) within the scope of the authority granted the
county by the state government, (2) aimed at serving some legitimate
public purpose and (3) rationally related to that purpose, this court
will not second-guess the county government.

We agree. The district court correctly decided that Washoe
County's mandatory garbage collection plan satisfies this three-part
test. Hence, plaintiffs’ police power argument is without merit.

VI.
CONCLUSION

We affirm the district court's grant of summary judgment in

favor of defendants/appellees.

AFFIRMED.

APPENDIX C

MARC PICKER, ESQ., LTD.
417 West Plumb Lane

Post Office Box 3344

Reno, NV 89504

(702) 324-4533

Attorney for Individuals for
Responsible Government, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

“x *

INDIVIDUALS FOR Case No. CV-N-94-526-ECR
RESPONSIBLE GOVERNMENT

INC., a non-profit Nevada

corporation; JANICE BUSE,

HILARY BURSON, and

JUNE LINK, individuals,

Plaintiffs,
VS. PLAINTIFF INDIVIDUALS
FOR RESPONSIBLE

WASHOE COUNTY BY AND GOVERNMENT, INC.’S
THROUGH THE BOARD OF CROSS-MOTION FOR
COUNTY COMMISSIONERS SUMMARY JUDGMENT
OF THE COUNTY OF
WASHOE, CHAIRMAN
DIANNE CORNWALL, VICE
CHAIRMAN LARRY BECK,
GENE MCDOWELL, STEVE

26

BRADHURST;; and
INDEPENDENT SANITATION
CO., INC., a Nevada corporation,

Defendants.
/

TO: THE HONORABLE UNITED STATES DISTRICT COURT,
DISTRICT OF NEVADA

Plaintiff Individuals for Responsible Government, Inc., moves
this court, pursuant to Rule 56, Federal Rules of Civil Procedure, to
enter an order in favor of Plaintiff. This motion is made upon the
grounds that there is no genuine issue of fact raised by the First
Amended Complaint or the answers thereto, and Plaintiff is entitled
to judgment as a matter of law.

This motion is based on the instant motion, the memorandum
of points and authorities filed herewith, and the records and pleadings
on file.

Dated: This 31st day of August 1995.

Law Office of Marc Picker, Esq., Ltd.
417 W. Plumb Lane

P.O. Box 3344
Reno, Nevada 89504

27

Attorney for Plaintiff Individuals

for Responsible Government, Inc.
By: _S/

Marc Picker, Esq.

c
4
.
4

SPM al ik al aS A BOI RAI coi eA Sah A STN

wd ak a bie id bide deco

28

Sai il te a2 Si. bas a

APPENDIX D

MARC PICKER, ESQ., LTD.
417 West Plumb Lane

Post Office Box 3344

Reno, NV 89504

(702) 324-4533

Attorney for Individuals for
Responsible Government, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

* * *

INDIVIDUALS FOR Case No. CV-N-94-526-ECR
RESPONSIBLE GOVERNMENT

INC., a non-profit Nevada

corporation; JANICE BUSE,

HILARY BURSON, and

JUNE LINK, individuals,

Plaintiffs,
VS. PLAINTIFF'S
MEMORANDUM OF
WASHOE COUNTY BY AND POINT AND AUTHORITIES
THROUGH THE BOARD OF IN OPPOSITION TO
COUNTY COMMISSIONERS DEFENDANTS’ MOTIONS
OF THE COUNTY OF WASHOE, FOR SUMMARY

CHAIRMAN DIANNE JUDGMENT AND
CORNWALL, VICE CHAIRMAN SUPPORTING PLAINTIFFS’
LARRY BECK, GENE CROSS-MOTION FOR

29

Selena caat pene

MCDOWELL, STEVE SUMMARY JUDGMENT
BRADHURST; and

INDEPENDENT SANITATION

CO., INC., a Nevada corporation,

Defendants.

I.

Plaintiff Individuals for Responsible Government submit the
following memorandum of points and authorities in opposition to
Defendants motions for summary judgment and in support of its own
cross-motion for summary judgment.

Il.

As our country celebrates the triumph of our ideals of free
markets and individual choice and responsibility around the world,
and as our nation seeks to remove regulatory barriers to the
marketplace and increase the competition in services from traditional
monopolies such as telephone, cable and, even, electrical power,
Washoe County has determined that a command economy with a
monopoly is more suited to the needs of Nevadans. Washoe County

has eliminated any competition for garbage collection, and imposed

30

a fee for the collection of property of citizens, such fee to be collected
regardless of whether these citizens deign to surrender their property
to a franchisee for its own gain.
Il.
STATEMENT OF FACTS

In April 1992, the Washoe County Commission amended
the Washoe County Code, by adopting Ordinances 838 and 848
("Ordinances") to provide for mandatory collection of household
garbage from all residents in the unincorporated county. The
Ordinances have been incorporated into the County Code as
Chapter 90. The stated reason of County officials for imposing
mandatory collection was to eliminate or reduce illegal dumping in
the unincorporated portions of the County. Affidavit of Janice
Buse, 41 and Exhibit 1. Plaintiff asserts that the primary effects of
the Ordinances are: (1) To eliminate freedom of choice for county
residents as to with whom they choose to do business, (2) To
increase the funds available to the County, (3) To create additional

financial burdens on the residents, (4) To create a monopoly for

3]

Defendant Independent Sanitation, and (5) To result in the seizure
or impairment of their property. The Ordinances have not
addressed the problem of illegal dumping in the unihabited areas,
nor are they reasonably and narrowly crafted to achieve the
County's stated goal while minimizing the burden on residents of
the County.

The County purportedly enacted these Ordinarices to
address the problem of increased dumping in the desert of trash and
garbage. Buse Affidavit at {1 and Exhibit 1. The County already
has ordinances which prohibit the dumping of trash, in addition to
existing state and federal laws. Buse Affidavit at { 4 and Exhibit
2. Citizens of Washoe County, including members of Plaintiff
Individuals for Responsible Government, have attempted to assist
the County in enforcing these anti-dumping ordinances, but have
received little cooperation or effort from the County in doing so.
Buse Affidavit at 4 3-7.

In 1992, in response to citizen protests, an Illegal Dumping

Task Force was established by the Washoe County Commission to

32

educate to the public as to the need for proper disposal of trash and
garbage and to seek the assistance of the public, law enforcement
and health authorities and the judiciary to enforce the anti-dumping
ordinances and statutes. Buse Affidavit at ¢q 3-4. This Task
Force organized citizen watch programs to assist law enforcement
and health officials in apprehending those responsible for the illegal
dumping. Task Force members met with law enforcement and
judicial officials to ensure that the efforts of private citizens to
undertake a significant role in eliminating or reducing illegal
dumping would be met with proper enforcement actions. The Task
Force was assured by both judicial and enforcement personnel that
the full measure of penalties provided by law would be sought in
all cases of illegal dumping. Buse Affidavit at 445. The actions
and observations of private citizens working in cooperation with
the Task Force resulted in several persons being apprehended,
however, none of the individuals apprehended received a fine
exceeding one-quarter of the maximum imposed by law.

The County has shown limited interest in the enforcement

33

of its anti-dumping ordinances or the state laws on this matter.
Illegal dumps continue to proliferate within Washoe County. Buse
Affidavit at 48 and Exhibit 4. Few actions have been prosecuted
by County for the illegal dumping of trash, and those few cited by
the County in newpaper accounts only highlight the continuing
existence of the problem which these Ordinances were intended to
cure.

Prior to the passage of the Ordinances, the citizens and
residents of Washoe County had no mandatory household pickup,
and the disposal of garbage was left to market forces and the
initiative of the residents. Burson Affidavit at 42: Fells Affidavit
at 443-6. In fact, before the passage of the first franchise for the
County in 1967, citizens had the choice of at least two services for
the collection of their garbage and trash. Fells Affidavit at %3.
While a majority of the citizens chose to subscribe to a service
(which the County had chosen to limit to a monopoly in 1967),
approximately four thousand citizens declined to contract with

Independent Sanitation. Buse Affidavit, Exhibit 1.

34

Residents of northern Washoe County took or take their

household garbage across state lines into California, for disposal in
Susanville. Burson Affidavit at 44-5. This option was both more
convenient and cost effective, as northern Washoe County is
considerably closer to Susanville, California than to the landfill in
Lockwood, Nevada.
IV.
ARGUMENT

l. The Mandatory Garbage Collection Ordinance

Eliminates Competition Without Meeting Standards

Required by the Nevada Revised Statutes

Nevada Revised Statutes § 244.187 provides:
Displacement or limitation of competition: Services:

"A board of County Commissioners may, to provide
adequate, economical and efficient services to the
inhabitants of the county and to promote the general welfare
of those inhabitants, displace or limit competition in any of
the following areas:

3. ~— Collection and disposal of garbage and other waste.

The County has made no findings and offered no evidence

that the imposition of a monopoly franchise is necessarily more

35

“adequate, economical and efficient” than a free market would
provide. The evidence is to the contrary, not only in general
economic experience of the country, but specifically in this
County. See Fells Affidavit at %3.

Moreover, the evidence presented does not support that the
“general welfare” of the citizens is improved by the issuance of a
monopoly franchise. The regularly stated reason for the issuance
of the mandatory franchise is the elimination of illegal dumps. But
there is no evidence submitted that the monopoly franchise has
accomplished any such thing. See Buse Affidavit at 41 and 48, and
Exhibit 3. The franchise has wholly failed in its stated purpose,
while continuing to burden the citizens. The Ordinance was not
narrowly tailored to achieve its stated purpose.

2. The Mandatory Trash Collection

Ordinance and its Companion
Franchise Agreement Violates the

Commerce Clause of the United
S Constituti

It is well settled that actions are within the domain
of the Commerce Clause if they burden interstate

commerce or impede its free flow. NLRB vy. Jones

36

& Laughlin Steel Corp., 301 U.S. 1, 31 (1937).
Quoted in C&A Carbone, Inc, v. Town of Clarkstown, -- U.S. ---,

114 S.Ct. 1677, 1681-1682 (1994). The collection, transportation

and disposal of garbage is beyond doubt an act of commerce.

[What makes garbage a profitable business is not its
own worth, but the fact that its possessor must pay
to get rid of it. In other words, the article of
commerce is not so much the solid waste itself, but
rather the service of processing and disposing of it.

Carbone at 1682.

Restrictions on the disposal of trash do reach interstate
commerce. The effect of these Ordinances is to reserve an area of
commerce for a favored local operator. The United States
Supreme Court has already spoken as to the scrutiny with which
such ordinances should be reviewed. Carbone at 1683.

Discrimination against interstate commerce is per se

invalid, save in the narrow class of cases in which

the municipality can demonstrate that, under

rigorous scrutiny, that it has no other means to
advance a legitimate local interest.

Maine v. Taylor, 477 U.S. 131 (1986).

This matter presents a situation very similar to that

37

presented in Carbone, in which a single favored local operator is
granted an exclusive market, in which no other party, local or
interstate may compete. Carbone at 1683. Such an ordinance
deprives both in-state and out-of-state businesses of access to the
local market, and denies freedom of choice and contract to the
citizens resident in Washoe County.
A. The Purported Purpose of the Mandatory Garbage

Collection Ordinance and Monopoly Franchise May

Be Achieved Through Enforcement of Existing

Ordinances_and Statutes

The purported purpose of the Ordinances and the granting
of a monopoly franchise may be achieved through the enforcement
of existing regulations, ordinances and statutes. The Supreme
Court has stated an action is within the scope of the Commerce
Clause if it burdens interstate commerce or impedes its flow. The
Supreme Court has held that two lines of analysis may be applied
to determine whether an action violates the Commerce Clause:

first, the action discriminates against interstate

commerce, Philadelphia, 437 U.S. at 625, 98 S.Ct.

at 2535; and second the action imposes a burden that
is “clearly excessive in relation to the putative local

38

benefits” (Pike v. Bruce Church, 397 U.S. 137
(1970).

Carbone at 1682.

In Carbone the Supreme Court held that the township has a
variety of nondiscriminatory alternatives for resolving health and
environmental problems rather than creating a monopoly on the
handling of trash. “The most obvious would be uniform safety
raion enacted without the object to discriminate. These
regulations would ensure that competitors like Carbone do not
underprice the market by cutting corners.” Carbone at 1683.

In light of the failure of the mandatory garbage collection
ordinances and monopoly franchise to achieve the stated goals,
there is no adequate justification for the elimination of competition
and the interference with personal freedoms.

3. Recyclable Materials Are Property of Individuals

Pursuant to Nevada Revised Statute Section

444 S85.

The franchise agreement entered into by Washoe County

allows Independent Sanitation to bill all individuals for the

39

;
|
.

collection of recyclables, whether or not any collection is made.
Buse Affidavit at 49, Exhibit 4.

The Nevada State Legislature has determined that ownership
of recyclable materials passes to a curbside collection agency only
when such materials are set out for collection at the curbside or at
another appropriate site designated for collection. N.R.S.
§444.585.1(a) and (b). The obvious inference is that the
ownership of these materials remains with the citizenry until such
time as they surrender their interest.

Petitioners and like situated parties’ property interest in
their recyclable materials, as recognized in N.R.S. §444.585, is
being subject to a governmental taking by the imposition of such
fee by Respondents which must be paid to Independent Sanitation
for mandatory subscription to a curbside recycling program. The
utilization of such a program requires the voluntary surrender of
property rights to the franchisee, who may profit from the
Subsequent resale of the recycled goods. However, the citizens of

Washoe County are obliged to pay Independent Sanitation even if

40

they choose to retain their own property. Buse Affidavit at 49,
Exhibit 4.

The mandatory collection of recyciable materials and the
imposition of a fee for such service serves no purpose other than to
limit competition and thereby increase the profits of Independent
Sanitation and to impose a hidden tax through the fees paid by
Independent Sanitation to Washoe County. By virtue of this
imposition, the County is confiscating the property of its citizens,
in a manner that is effectively a heavy tax on recyclables within
unincorporated Washoe County.

4. Defendants Position Is Based on Cases Which Are
Outdated and Have Been Placed in Questionable

Status Due to More Recent Supreme Court
Decisi

Defendants have cited numerous cases which state that the
granting of a monopoly franchise and mandatory collection of fees
is within the power of municipalities. It is not questioned that such

was the position of the courts, but we note that very few of the

cited cases have been decided in the last few years, and only three

of consequence in the past five years: Peninsula Sanitation v. City
of Mustique, 526 N.W.2d 607 (Mich. 1995), Kootenai County

Property Assoc, v, Kootenai County, 769 P.2d 553 (Idaho 1989),
and Ambulance Service of Reno, Inc, v. Nevada Ambulance
Services, Inc., 819 F.2d 910 (9th Cir. 1987).

The Court of Appeals of Michigan, in deciding Peninsula
Sanitation, cited no Supreme Court case newer than 1905, thus
failing to reflect the Court’s tremendous body of case law on the
Commerce Clause since that date. As the Court noted in City of
Philadelphia v. New Jersey, 98 S.Ct. 2531, ‘[t]he bounds of these
restraints appear nowhere in the words of the Commerce Clause,
but have emerged gradually in the decisions of the Court giving

effect to its basic purpose. Id. at 2535 The-decision in

Ambulance Service of Reno is distinguishable in that the action was

based on an alleged violation was of the Sherman Anti-Trust Act,

distinct from the grounds asserted in this matter.

Kootenai County Property Assoc, was also decided on

different grounds, without a discussion of the issues presented in

42

this case, being based largely on a challenge to the status of the
“fees” as taxes under the Idaho Constitution. Plaintiff also notes

that the dissent in that matter cited another Idaho case, Brewster v.

City of Pocatello, 768 P.2d 765 (1988) in which the Idaho
Supreme Court stated:

In a general sense a fee is a charge for a direct

public service rendered to the particular consumer, |
while a tax is a forced contribution by the public at
large to meet public needs.

Id. at 768. In a very real sense, the fees imposed under these

Ordinances are taxes.

ee a ee a

CONCLUSION

The Ordinances, including the mandatory franchise |
payments, violate the Commerce Clause in that they fail to allow
for any meaningful competition, impair interstate commerce, and
are not narrowly tailored to accomplish the stated purposes. The

Ordinances also result in an impairment of property rights because
of the imposition of a mandatory fee for a purportedly voluntary

surrender of valuable private property.

43

Wherefore, Plaintiff Individuals for Responsible
Government, Inc., prays that the Court will deny the Defendants’
Motions for Summary Judgment and grant the Plaintiff’s Cross-
Motion.

Dated: This 31st day of August 1995.

Law Office of Marc Picker, Esq., Ltd.
417 W. Plumb Lane

P.O. Box 3344

Reno, Nevada 89504

Attorney for Plaintiff Individuals

for Responsible Government, Inc.

By: Ls/_

’ ~ Marc Picker, Esq.

44

APPENDIX E

MARC PICKER, ESQ., LTD.
417 West Plumb Lane

Post Office Box 3344

Reno, NV 89504

(702) 324-4533

Attorney for Individuals for
Responsible Government, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

-

INDIVIDUALS FOR RESPONSIBLE

GOVERNMENT INC., a non-profit

Nevada corporation; JANICE

BUSE, HILARY BURSON, and

JUNE LINK, individuals,
Plaintiffs,
VS.

WASHOE COUNTY BY AND
THROUGH THE BOARD OF
COUNTY COMMISSIONERS
OF THE COUNTY OF
WASHOE, CHAIRMAN
DIANNE CORNWALL, VICE
CHAIRMAN LARRY BECK,

AFFIDAVIT OF DARREL
REED IN SUPPORT OF
PLAINTIFF’S OPPOSITION
TO DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT AND
PLAINTIFF’S
CROSS-MOTION FOR
SUMMARY JUDGMENT

MCDOWELL, STEVE
BRADHURST; and
INDEPENDENT SANITATION
CO., INC., a Nevada corporation,

Defendants.

STATE OF NEVADA )
COUNTY OF WASHOE Pe

Comes now DARREL REED, being duly sworn, deposes and
says:
i I have resided with my wife, Mary, at 395 Puma Drive, in the
unincorporated area of Washoe County for five (5) years.
y With only two residents at our home and because of our
lifestyles, my wife and I produce very little trash or garbage (trash
contaminated with organic material).
3. Because of our disposal methods for Organic materials, we
produce little if any garbage as defined in the Nevada Revised
Statutes. We also produce minimal amounts of trash, as defined, and
deliver trash and recyclable materials to the appropriate disposal

facilities as needed and reasonably prudent to do so.

46

4. All of our minimal quantity of organic wastes are used in our
compost heap, or sent down the disposal and into our cesspool.
5. I obtained an exemption from the Washoe County District
Board of Health in December 1992. A true and correct copy of this
application is attached as Exhibit | to this Affidavit.
6. In June 1994 I received a notice from the Washoe County
Board of Health, which indicated that I had not provided sufficient
receipts to Independent Sanitation to retain my exemption. A true
and correct copy of this notice is attached as Exhibit 2 to this
Affidavit. Although I responded to this notice, | was not informed
that my exemption had been revoked until an agent of Independent
Sanitation handed me a handwritten notation indicating that my
exemption had been revoked in October 1994. A true and correct
copy of the notation is attached as Exhibit 3 to this Affidavit.
Executed on this __ th day of August, 1995.

LS/
DARREL REED

Subscribed and sworn before me.

47

a notary public, this 30" day
of August, 1995.

LS/
NOTARY PUBLIC

48

DISTRICT HEALTH
DEPARTMENT

APPLICATION FOR EXEMPTIONS FROM GARBAGE
SERVICE IN THE UNINCORPORATED AREAS
OF WASHOE COUNTY

Section 90.037 of the Washoe County Code requires that every owner
of real property subscribe to the collection, hauling, and disposal of
garbage unless the person qualifies for an exemption.

I, DARREL REED, am entitled to an exemption from garbage
service because (check one):

A. ___ There is no garbage produced or stored upon the premises.
B. ___ An easily recognizable condition exists on the property that
presents a significant hardship to the resident of the property or to the
franchised collector in the normal process of curbside collection of
garbage, namely
C. X_I wish to haul and dispose of my own residential garbage.

In applying for exemption (B or C), I agree to comply with all
Statutes, laws, codes, and regulations governing the storage,
recycling, hauling, and disposal of my garbage.

Listed below are applicable District Board of Health Regulations -

Governing Solid Waste Management; and | specifically understand
that I must: ~

1. Properly store my garbage and noi cause a health hazard;
attract or propagate vectors, vermin, or pests; create unpleasant
odors; or create a nuisance (045.005);

2. Not store garbage on my property for more than seven (7)
days (040.030);

3. Haul my garbage to an approved disposal site not less than
once every seven (7) days (050.080), (050.145):

EXHIBIT |

49

|
|
:
|
.

4. Prevent littering and nuisances at the loading point, during
transport, and at the disposal site (050.015);

5. Tightly cover the waste and the vehicle during transport to
the disposal site (050.045); and

6. Haul only my own garbage and not provide garbage
service to any other person (050.010), (050.025).
I agree and understand that I must maintain receipts or provide other
proof that my garbage was disposed of at an approved disposal site.
I agree and understand that if I fail to comply with any of the above-
listed conditions, this exemption may be revoked and I will be
required to subscribe to regular garbage service. | further agree and
understand that this exemption is not transferable from person to

person or from parcel to parcel.

Address: 395 Puma Drive, Carson, Nevada 89704
Assessor’s Parcel No.: 050-403-16

Telephone # 883-0404

Date: 11-23-92 Signature: __/s/

FOR STAFF USE ONLY
Reviewed and approved by: _/s/
Exemption # 0186C
Notes: Date: 12/8/92

50

RENO WASHOE COUNTY SPARKS
NEVADA

DISTRICT HEALTH DEPARTMENT
June 9, 1994
Re: 0186C
Dear Darrel and Mary Reed:

Sometime ago, at your request, an exemption from garbage service
in the unincorporated areas of Washoe County was approved by this
department and a pink copy should still be in your possession. This
exemption process is provided for in Section 90.037 of the Washoe
County Ordinance No. 838, Bill No. 1013, effective December 2,
1991, and the amended Ordinance No. 848. Bill No. 1023, effective
April 28, 1992.

When you placed your signature on the exemption you agreed to the
six (6) conditions listed, number three being that you would haul your
garbage to an approved disposal site not less than once every seven
(7) days (050.015 and 050.145). In order for the exemption to
remain in force, it was necessary for you to receive disposal receipts
each week from the landfill and submit them to the franchised
disposal company along with your quarterly statement to have your
account credited for that quarter.

On the exemption form, above your signature, it states in part “I
agree and understand that if I fail to comply with any of the above

listed conditions, this exemption may be revoked and J will be

required to subscribe to regular garbage service". Records from the
disposal company indicate that you have not complied with the

exemption conditions.
EXHIBIT 2

51

Within fifteen (15) days from the receipt of this letter, you must
submit a written response explaining why your exemption should not
be revoked. Please mail to Washoe County District Health
Department, Attention: Bob Sack, Environmental Health Services,
P.O. Box 11130, Reno, NV 89520. If you tail to reply within the
fifteen day period, this letter will serve as your NOTICE OF

REVOCATION of your exemption and you will be required to take
service from the franchised disposal company in your area.

Sincerely,

/s/

Carl R. Cahill, Director
Environmental Health Services

CRC:jd |
cc: Tom Green, Reno Disposal Company

1001 EAST NINTH STREET/P.O. BOX || 130, RENO, NEVADA
89520 (702)328-2400 FAX (702) 328-2279 .

52

APPENDIX F

MARC PICKER, ESQ., LTD.
417 West Plumb Lane

Post Office Box 3344

Reno, NV 89504

(702) 324-4533

Attorney for Individuals for
Responsible Government, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

—

INDIVIDUALS FOR

RESPONSIBLE GOVERNMENT

INC., a non-profit Nevada
corporation; JANICE BUSE,
HILARY BURSON, and
JUNE LINK, individuals,

Plaintiffs,

vs.

WASHOE COUNTY BY AND
THROUGH THE BOARD OF
COUNTY COMMISSIONERS
OF THE COUNTY OF

53

Case No. CV-N-94-526-ECR

AFFIDAVIT OF CLARA
FELLS IN SUPPORT OF
PLAINTIFF’S OPPOSITION
TO DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT AND

. Qe -
Tyee Oe) a mes wren bs epee er

WASHOE, CHAIRMAN PLAINTIFF’S

DIANNE CORNWALL, VICE CROSS-MOTION FOR
CHAIRMAN LARRY BECK, SUMMARY JUDGMENT
MCDOWELL, STEVE

BRADHURST; and

INDEPENDENT SANITATION

CO., INC., a Nevada corporation,

Defendants.

STATE OF NEVADA )
COUNTY OF WASHOE . a4

Comes now CLARA FELLS, being du y sworn, deposes and
Says:
a I have resided at 1475 East 10th Street, Reno, in Washoe
County and have lived in Washoe County since 1955.
y I My late husband and I operated “Speedy Pick-Up Service,” a
competing business with Independent Sanitation from 1959 through
the present time.
3. Prior to the enactment of monopoly !ranchise ordinances by
the Washoe County Council Speedy Pick-Up was providing trash and

garbage collection services in the unincorporated portions Washoe

54

County, including Lemmon Valley, Sun Valley and south into.
Douglas County.

4. At no time was Speedy Pick-Up Service given an opportunity
to bid on the franchise for collection of trash and garbage from the
unincorporated areas of Washoe County.

5. Speedy Pick-Up Service purchased garbage trucks to meet the
requirements of Reno City Ordinance 5.28.040 while serving
Lemmon Valley and Sun Valley. However, the Washoe County
Franchise was enacted shortly thereafter, torcing Speedy to pay for
the vehicles while being denied the opportunity to serve and compete.
6. Speedy Pick-Up Service has been effectively eliminated from
competing with Independent Sanitation by the granting of non-bid
franchises with Washoe County, Reno, and Sparks.

3 Independent Sanitation has previously brought suit against
Speedy Pick-Up Service and my late husband Ellis Fells for
continuing to pick-up trash. See Complaint. tile stamped February
5, 1971, attached as Exhibit | to this Affidavit. A subsequent opinion

by the then District Attorney, now Supreme Court Justice Robert

55

Rose, determined that the County and Independent Sanitation had

exceeded their authority by including trash within the franchise.
Letter of District Attorney to Board of Commissioners, dated
September 7, 1971, and marked as Exhibit 2 to this Affidavit.

8. The statutory definition of garbage has been interpreted by the
Washoe County District Board of Health to include any trash which
has come into contact with food. By this definition, and the granting
of a monopoly to Independent Sanitation, Speedy Pick-Up Service is
in violation of the exclusive franchise granted to Independent
Sanitation any time that construction workers leave food ides in
with the construction site debris.

9. Through operation of the Lockwood) Dump and the Reno
Transfer Station, sister companies of Indepenclent Sanitation monitor
all trash delivered by any competitor to Independent Sanitation and
Reno Disposal. This position allows Independent Sanitation to
monitor any attempt to compete with it.

10. A Reno City Ordinance (5.28.040) prohibits the transport of

any garbage within the City of Reno, thereby making any person who

56

delivers their own garbage to the Reno Transfer Station in violation

of Reno City Ordinances. Copy of Ordinanee 5.28.040 attached as
Exhibit 3.
11. I was present at the Washoe County Council meeting at which
the mandatory garbage collection ordinance was enacted. The several
members of the council, as well as Carl Cahill, the Director of the
Washoe County District Board of Health, stated that the main purpose
of the ordinance was to eliminate illegal dumping in the
unincorporated areas of the County.
12. ‘If not prohibited by the County, Speedy Pick-Up Service
would continue to offer service to cilizens residing in the
unincorporated portions of the County.
Executed on this 31" day of August, 1995.
Ls/
CLARA FELLS

Subscribed and sworn before me,

a notary public, this 31" day
of August, 1995.

Ls/
NOTARY PUBLIC

57

NO. 267523 DEPT. NO. 4

IN THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE

INDEPENDENT SANITATION,
a copartnership,

Plaintiff,
vs.
ELLIS R. FELLIS, doing
business as SPEEDY’S
PICK UP SERVICE,

Defendant.

Plaintiff alleges:
I

That at all times herein mentioned, plaintiff, INDEPENDENT
SANITATION, was and still and now is a copartnership consisting of
SAMUEL CARAMELLA, JACK B. CARAMELLA, JULIUS
BALLARDINI, BEN CARAMELLA and LAWRENCE F
DEVINCENZI.

EXHIBIT |

58

il

That at all times herein mentioned, the defendant, ELLIS R.
FELLIS, has been an individual doing business under the firm name and
style of “SPEEDY’S PICK UP SERVICE” in the County of Washoe,
State of Nevada.

Il

That on or about May 15, 1967, the County of Washoe, a
political subdivision of the State of Nevada, entered into a wnitten
agreement with plaintiff herein under the terms and provisions of which,
said County of Washoe granted to plaintiff the exclusive franchise for
the operation of a garbage and trash collection and disposal service
within the unincorporated areas of Washoe County, excluding therefrom
the areas of Incline Village General Improvement District and the
Horizon Hills General Improvement District, which said agreement
provided that the franchise thereby granted should continue for a period
of ten (10) years from the date thereof, subject to the right and option
of plaintiff to renew the same for an additional period of ten (10) years.

That said agreement is in full force and effect and plaintiff has at all

59

times fully complied with and performed all the terms and conditions
thereof.
IV
That the defendant, ELLIS R. FELLIS, doing business as
SPEEDY’S PICK UP SERVICE, his agents, servants and employees
have since the granting of said franchise to plaintiff collected, hauled and
disposed of garbage and trash in the unincorporated areas of Washoe
County covered by said plaintiff's franchise in violation of plaintiff s
exclusive rights under the franchise agreement hereinabove referred to:
that plaintiff is informed and believes and upon such information and
belief alleges that if plaintiff is not granted the relief requested herein.
the defendant will continue to collect, haul and dispose of garbage and
trash in violation of plaintiff's exclusive rights to do so in the
unincorporated areas of Washoe County covered by said franchise
agreement.
V
That as a proximate result of defendant's actions, plaintiff has

lost customers and accounts for the collection of garbage and trash in

60

heites aalttitiies ene ante a slats Pm a Sted’ eee al ln 0 AB

the unincorporated areas of Washoe County specifically covered by the
franchise agreement hereinabove referred to, that plaintiff is informed
and believes and upon such information and belief alleges that as a
proximate result of defendant's actions, plaintiff has lost profits in

excess of the

61

WASHOE COUNTY
COURTHOUSE
RENO, NEVADA 89505
Robert E. Rose
District Attorney

September 7, 1971

Board of Commissioners
of Washoe County
Courthouse

Reno, Nevada

Re: Independent Sanitation Co. Garbage Franchise
Gentlemen:

An opinion has been requested from this office concerning the validity
of an exclusive garbage and trash franchise awarded to Independent
Sanitation Co. by Washoe County in 1967.

Because the Commissioners are familiar with the background of the
award of the franchise, this opinion will not review in detail the minutes
leading to the award. However, it has been argued that the award of the
franchise is invalid because of a lapse of more than thirty (30) days
between the “Invitation to Bid” and the award of the franchise. This
argument is based upon a misinterpretation of Ordinance No. 135 and
is therefore invalid. Ordinance No. 135, Sec. 3(d) provides that the
Board may not grant the franchise in “less that thirty (30) days after the
publication of the “Invitation to Bid’...” This means that the Board may
grant the franchise more than thirty (30) days after publication of the
“Invitation to Bid” but may not grant it within the thirty (30) day period.

It has also been contended that the agreements entered into between
EXHIBIT 2

62

Independent Sanitation Co. and Mr. Hulbert of Lake Tahoe and Mr.
Franchi of Verdi violate paragraph 11 of the franchise agreement
prohibiting assignment, sale or transfer of any portion of the franchise.
This theory is incorrect, since these agreements were entered into propr
to the execution of the agreement and were specifically made a
condition of the award of the franchise at the meeting of February 27,
1967. In other words, at the direction of the Board, these agreements
were entered into prior to the effective date of paragraph 11 of the
franchise agreement and are not covered thereby

It is the opinion of this office that Washoe County is bound by the
franchise agreement and may not, four-and-one-half (4'2 ) years after it
was awarded, unilaterally declare the franchise void, as it pertains to
garbage collection and disposal, for procedural irregularities in its
award. If such irregularities existed, Washoe County is as much to
blame as Independent Sanitation Co., which is and has invested capital
and operated for four-and-one-half (4% ) years in reliance on the
franchise. By its granting of the franchise with full knowledge of the
facts, Washoe County waived any procedural irregularities and is
estopped from now terminating the franchise on those grounds. To do
so would, in the opinion of this office, subject the County to liability for
substantial damages, including, but not limited to, a claim for profits for
the remaining five-and-one-half (5% ) years of the franchise.

It appears to this office that certain provisions of the franchise
agreement have been breached by Independent Sanitation Co., as
follows:

l. Paragraph 4, providing for monthly payment of the franchise fee
has not always been observed.

N

Paragraph 5, providing for an annual statement of all customers
of Independent Sanitation Co., attested as being correct by a
representative of the company, has not been observed. At any
rate, this office has been unable to find such a statement on file
with the County.

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3. Although no breach of paragraph 6, concerning rates, is Clearly
shown, this office would recommend that the County Manager
review with Independent Sanitation Co., their practices with
regard to rates for trash collection to determine if such practices
are in accordance with the agreement.

4. Paragraph 7 requires the posting of a penal bond in the sum of
$10,000.00. This office has received a letter dated August 31,
1971, from Comstock Insurance Agencies, Inc., Stating that the
bond is in full force and effect and the premium has been paid
for the anniversary period of 4-30-71 to 4-30-72. However, it
is recommended that the County request that a bond renewal
certificate be filed with the Clerk annually.

It is recommended that, pursuant to the direction of the Board, this
office immediately send a letter to Independent Sanitation Co.,
demanding that within ten (10) days, Independent Sanitation Co., begin
the work of compliance, in accordance with paragraph 13 of the
agreement. Clearly, in view of the provisions of paragraph 13, requiring
written notice of breach and demand for compliance, the breaches of the
agreement set forth above do not justify unilateral termination of the
agreement by the County.

It is the opinion of this office that the exclusive franchise agreement is
void insofar as it purports to grant and exclusive franchise for the
collection and disposal of trash. NRS 244.187, Washoe County
Ordinance No. 135 and the “Invitation to Bidders” for the franchise all
refer to and are limited to collection and disposal of garbage. Only the
franchise agreement, prepared by the attorneys for Independent
Sanitation Co., refers to trash collection and disposal. It is the opinion
of this office that the Board of Commissioners «ire empowered only to
grant an exclusive franchise for garbage collection and disposal and not
trash. Therefore, the County is without power to deny applications for
business licenses for trash collection based upon the existence of an
exclusive franchise for trash collection.

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Very truly yours,
Chan G. Griswold
Chief Civil Deputy

CGG:am

65

5.28.040

GARBAGE, RUBBISH, WASTE 5.28.040

Exclusive right to collect garbave in city. The City, its
duly authorized agents, servants, employees or
contractees, or the agents or employees of any such
contractees, shall have the exclusive right to gather and
collect and haul garbage within the city, and it shall be
unlawful for any person to collect, dispose of or
transport, carry or convey throu xh the streets, alleys or
public thoroughfares of the city, any garbage or to
collect or dispose of same. (Prior Code §9-48 (part)).

EXHIBIT 3

66

APPENDIX G

MARC PICKER, ESQ., LTD.
417 West Plumb Lane

Post Office Box 3344

Reno, NV 89504

(702) 324-+533

Attorney for Individuals for
Responsible Government, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

x *

~

INDIVIDUALS FOR Case No. CV-N-94-526-ECR
RESPONSIBLE GOVERNMENT

INC., a non-profit Nevada

corporation; JANICE BUSE,

HILARY BURSON, and

JUNE LINK, individuals,

Plaintiffs,

VS. AFFIDAVIT OF JANICE
BUSE IN SUPPORT OF

WASHOE COUNTY BY AND
THROUGH THE BOARD OF
COUNTY COMMISSIONERS
OF THE COUNTY OF

PLAINTIFF’S OPPOSITION
TO DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT AND

WASHOE, CHAIRMAN PLAINTIFF’S

DIANNE CORNWALL, VICE CROSS-MOTION FOR
CHAIRMAN LARRY BECx, SUMMARY JUDGMENT
MCDOWELL, STEVE

BRADHURST; and

INDEPENDENT SANITATION

CO., INC., a Nevada corporation,

Defendants.

STATE OF NEVADA )
) Ss.

COUNTY OF WASHOE _)

Comes now JANICE BUSE, being duly sworn, deposes and
Says:
l. I have resided and continue to reside at | 1325 Chestnut Street,
in the unincorporated area of Washoe County, since 1979,
ye I was present at a meeting before the Washoe County District
Board of Health (see article with McIntyre, county manager)
regarding the recently enacted mandatory collection ordinance held in
1992. The several members of the Board. as well as Carl Cahill, the

Director of the Washoe County District Board of Health, stated that

the main purpose of the ordinance was to eliminate illegal dumping

68

ett lls lin I a A cl ce ll Ny a a 2 ee a ee

in the unincorporated areas of the County. Also attached as Exhibit
| is a copy of a news article dated March 27, 1995, written by Steven
Brown, the then Chairman of the Washoe District Board of Health,
and published in the Reno Gazette-Journal, citing illegal dumping as
a primary reason for the adoption of a mandatory garbage ordinance.
_ In response to citizen protests, an Illegal Dumping Task Force
was established by the Washoe County Commission to seek to educate
to the public as to the need for proper disposiil of trash and garbage
and to seek the assistance of the public, the law enforcement and
health authorities and the judiciary to enforce the anti-dumping
ordinances and statutes.

4. I served as a member of the Task Force appointed by the
Washoe County Council. A true and correct list of the Task Force
membership, along with agendas from the July 22 and August 20,
1992 meetings, and a summary of the July 22. 1992 meeting dated
July 23, 1995, are attached as Exhibit 2 to this Affidavit. A primary
purpose of the Task Force was to develop meiins to reduce the illegal

dumping of garbage and trash in the County. The Task Force

69

a ee ne enna

organized citizen watch programs to assist law enforcement and health
officials in apprehending those responsible for the illegal dumping.
~ Task Force members met with law enforcement and judicial
officials to ensure that the efforts of private-citizens to undertake a
significant role in eliminating or reducing illeyal dumping would be
met with proper enforcement actions. Task Force members were
assured by both judicial and enforcement personnel that the full
measure of penalties provided by law would be sought in all cases of
illegal dumping.

6. News articles relating to the enforcement of anti-dumping
statutes and ordinances are attached and included as Exhibit 3 to this
Affidavit. None of the individuals apprehended received a fine
exceeding one-half of the maximum fine allowed by law (Reno
Gazette-Journal, April 14, 1995, page IA).

wa The Task Force has not met in over one year, and the County
has shown little further interest in the enforcement and prosecution of
its anti-dumping ordinances or the state laws on this matter.

8. Attached is a true and correct copy of «i news article from the

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Reno Gazette-Journal, dated May 21, 1994, which lists the location
of six known illegal dumps within Washoe County, and details the
failure of the County to take effective action to entorce its ordinances
or the state laws on dumping. This article is written several years
after the initiation of mandatory trash collection service, which was
supposed to remove this blight from our desert.

9. Attached to this Affidavit as Exhibit 4 1s a news article dated
July 24, 1991, from the Reno Gazette-Journal is to the imposition of
a $1.25 per month fee for the collection of curbside recycling. This
fee is included in the regular quarterly billings from Independent
Sanitation, regardless of any use of the collection service. As I take

all of my recyclable materials into the recycling centers for my own

use or donate recyclables to charitable organizitions, I have not used

this service and do not intend to use this service. Consequently,
Independent Sanitation bills me every quaricr for the privilege of

retaining my own property.

Executed on this 31" day of August, |

LS/

JANICE BUSE

Subscribed and sworn before me.
a notary public, this 31" day
of August, 1995.

lS/
NOTARY PUBLIC

72

995.

SS

Reno Gazette-Journal Friday. March 27, 1992--13A

One Man’s View
Stop illegal dumping, get garbage picked up

By Steven Brown
Chairman. Washoe District Board of Health

Managing our solid waste is one of the niajor issues facing local
government in the 1990s.

There is a critical need to protect our cnvironment and quality
of life. We should all be outraged by the illegal iumping that occurs on
t he public lands of our county.

The illegal dumping of household garbay is not only an eyesore,
but an environmental and health disaster. Thivse sites are a breeding
ground for vermin and rodents spreading diseise This dumping may
ultimately contaminate groundwater many vi us depend upon for
domestic purposes.

Who pays for the cleanup of this illegal dumping? You and I do!
When the U.S. Forest Service and the BLM clean up these sites, it is our
tax dollars being spent. Several of these sites may require monitoring
for years. Again, you and I will foot the bill.

In 1991, the District Health Department adopted a Solid Waste
Management Plan for Washoe County to respond to these concerns. In
the plan there was a recognition for the need to adopt an ordinance
establishing mandatory garbage collection within specified
unincorporated areas of the county.

Most of the unincorporated population is concentrated in
neighborhoods with densities similar to Reno anc! Sparks. The cities of
Reno and Sparks have had mandatory collection since 1966. The
Incline Village General Improvement District has iad mandatory service
from its inception.

Three-quarters of the households in the » ecified unincorporated

EXHIBIT |

73

area currently have weekly collection. The majority of those households
subscribe to the highest level of service.

There has been a lot of talk about rights and mandatory service.
What about the rights of the majority of those households that currently
have collection? Don’t they have a right to a neighborhood and
community free of the degradation of illegal dumping? With rights
come responsibilities. A responsibility to our neizhbors and community.

The real issue here is finding the most cost-effective and efficient
way to deal with the illegal dumping and the debasing of our
environmental and community health standards

It is obvious that all households do not venerate a like amount
of garbage on a weekly basis. The current proposal allows for three
levels of service. The basic service will be one can per week.

With mandatory service, residents wil! be entitled to the free
disposal of large items such as furniture and appliances at the landfill.
Additionally, the franchisee will continue to support Community-based
cleanup projects.

There are other benefits of a mandatory service to our
community:

@/t will reduce and stabilize the cost of \waste removal.

#it will benefit recycling efforts by consolidating the waste
stream and establishing a collection process

®t will reduce spillage and litter from lnproperly covered self-
haul vehicles.

@it will reduce traffic to the transfer station and the landfill,
resulting in a net reduction in vehicle air pollutants

Let’s do the right thing.

74

EDUCATION SUBCOMMITTEE

Lois Aicholtz
Elizabeth Anderson
Carl R. Cahill

~ Alicia Chisman
David Farside
Pat Fladager
Mark Franchi
Linda Jones
Linda Mitchell
Russell Mix
“J” Parker
Lorna Price
Norman Rosenberg
Susan Skinner
Vernon Stallard

EXHIBIT 2

75

ENFORCEMENT SUBCOMMITTEE

Hilary Burson
Janice Buse
Karla Butko
Rick Dougherty
Gregg Finkler
Jim Ganyon
Skip Houk
Jeanne Johnson
Rich Kishpaugh
Clyde Murray
Dave Patula

Joe Canfield
David Freitas

- Robert-Mays

Bob Schultz

CLEAN UP GROUP

77

ILLEGAL DUMPING TASK FORCE
AGENDA

~ Jaty22, 1992 ©
5:30 pm

Introduction

Large Group vs. Action Groups
Establish goals and action plans
Adjourn 7 pm

78

We Ee
pen ee ce

WASHOE COUNTY
“To Protect and To Serve”

OFFICE OF FHE-COUNTY MANAGER- -— 1004 £-9" STREET
POST OFFICE BOX 11130

RENO, NEVADA 89520-0027

PHONE (702) 328-2000

July 23, 1992
TO Illegal Dumping Task Force
From: JOHN SHERMAN
Subject: July 22, 1992 Meeting

After introductions and reason for bringing the vroup together, members
of the Task Force spent some time on a brainstoi ming session regarding
possible solutions to the problem of illegal « umping. The following
points were discussed.

aincentives: free pickup with clean up

#Enforcement

sidentification: service people, neighbors

=Pictures of illegal dumpers in paper

sLocation of illegal dumps: public property, private property

= Types of trash/garbage: household waste, furniture, lawn clippings,
junk cars, etc.

@SPPC: neighborhood watch program

= Junk Car hauling program in Sun Valley as model

@ Education

= Prevention

= Nevada Revised Statutes: fire danger on lots. bill on property tax

® Work with media

® Need to know statutes/ordinances

=People from local area need to know CC&R’'s and their impact; who
enforces

®@ Mechanism for removing junk cars

79

DT ane ete na eg
a oe ee

® Public service announcement against illegal dumping
@ Educate Municipal and Justice Court Judges on issue
"Guidelines for making a complaint ,
"Bureau of Land Management fines for illega! dumping too low

Subsequent to the brainstorming session, the Task Force divided into
three working groups: Cleanup, Education and Enforcement.

CLEAN UP

Focus: hands on programs; quarterly “field work”

Goals:

®Design Program for October adopt a spot

®Honor camp/kids at risk/jail/Wittenberg Hall for cleanups
® Coordinating manpower

EDUCATION

Focus: program(s) to enhance clean culture

Goals:

"Complete homework assignments for next meeting

ENFORCEMENT

Focus: what works; bring facts together; coordination

Goals:

®Standardize reporting form used by enforcement agencies (police,
sheriff, health dept., zoning enforcement)

=Improve District Health Dept. follow up

"Increase citizen reporting without becomine a police state
®Publication of offenders/enforcement efforts penalties

"Use alternative sentencing for offenders

®improve coordination between District Attorney efforts with City

80

Attorney's

NOTE..NOTE..NOTE..NOTE

following dates: ==
®Clean up: July 29 @ | pm

@Enforcement: August 5 @ 5:30 pm

= Education: August 10 @ 5:30 pm

These meetings will be used to refine the goals/objectives of each area
of interest and to develop action plans. The next meeting of the entire
Task Force will be held in the Caucus room on August 26 at 5:30 pm.

8]

WASHOE COUNTY
“To Protect and To Serve”

OFFICE OF THE.COUNTY MANAGER —to0TE 9’ STREET
POST OFFICE BOX 11130
RENO, NEVADA 89520-0027
PHONE (702) 328-2000

August 20, 1992

TO: Illegal Dumping Task Force
From: John Sherman
Subject: August 26, 1992 Meeting

Please find attached the agenda for the August 26. |992 meeting of the
Illegal Dumping Task Force. Also inclosed for your information are:
™Selected Nevada Revised Statutes concerning illegal dumping.
®Information needed when reporting illegal dumping to the District
Health Department.

# District Health Department definition of illegal dumping.

® Information on Wester Nevada Clean Communities. Inc.

#Reno Gazette-Journal editorial on littering.

82

ILLEGAL DUMPING TASK FORCE
AGENDA
August 26, 1992
5:30 pm

ss — ee oe eee -_—— — = = —

Reports from subcommittees

Identification of Task Force goals and action plans
Future direction: what next?

Adjourn 7 pm

NEVADA REVISED STATUTES
CRIMES AGAINST PUBLIC HEALTH AND SAFETY

202.180 Deposit of unwholesome substance;-carrying i
on business detrimental to public health on or near route of public

travel.

Every person who:

1. Shall deposit, leave or keep, on or near a highway or route
of public travel, on land or water, any unwholesome substance:

2. Shall establish, maintain or carry On, upon or near a highway
or route of public travel, on land or water, any business, trade or
manufacture which is detrimental to the public health; or

3. Shall deposit or cast into any lake, creek or river, wholly or
partly in this state, the off! from or the dead body of any animal:
shall be guilty of a gross misdemeanor

202.185 Unlawful deposit of dead animal, dirt,
garbage or rubbish on public highway; penalty.

1. As used in this section:

(a) “Dead animals” means all dead animals or parts thereof.
including condemned mets. not intended to be used as food.

(b) “Dirt” includes loose earth, ashes, manure from barns,
Stables, corrals and pens, o!Tal from butcher houses and slaughterhouses,
and all foul and

84

public highway, any dead animal, dirt, garbage or rubbish as defined in
subsection 1.

3. Any person violating the provisions of this section shall be
guilty of a misdemeanor.

COLLECTION AND DISPOSAL OF SOLID WASTE

444.440 Declaration of state policy. It is hereby
declared to be the policy of this state to regulate the collection and_
disposal of solid waste in a manner that will:

. Protect public health and welfare.

Prevent water or air pollution.

. Conserve natural resources.

. Enhance the beauty and quality of the environment.

No

~~ WwW

444.583 Unlawful disposal of motor vehicle battery,
motor vehicle tire or motor oil; penalty; plan for appropriate
disposal; exemption.

1. Except as otherwise provided in subsection 5, it is unlawful

willfully to:

(a) Dispose of, abandon or dump a motor vehicle battery, motor
vehicle tire or motor oil at any site which has not been issued a permit
for that purpose by the state department of conservation and natural
resources;

(b) Dispose of, abandon or dump a motor vehicle battery, motor
vehicle tire or motor oil at a sanitary landfill or other disposal site
established by a municipality which has not been issued a permit for that
purpose by the state department of conservation and natural resources;
or

(c) Incinerate a motor vehicle battery or motor vehicle tire as a
means of ultimate disposal, unless the incineration is approved by the
department for the recovery of energy or other appropriate use.

2. A person who violates the provisions of subsection | is guilty
of a misdemeanor and shall be punished by a fine of not less than $100
per violation.

3. The department shall establish a plan for the appropriate

85

disposal of used or waste motor vehicle batteries, motor vehicle tires
and motor oil. The plan must include the issuance of permits to approve
sites of facilities for the disposal of those items by the public. The plan
_ May include. coordination withthe office of community service within
the governor’s office for the education of the public regarding the
necessity of disposing of these items properly and recycling them.

4. The department shall encourage the voluntary establishment
of authorized sites which are open to the public for the deposit of used
or waste motor vehicle batteries, motor vehicle tires and motor oil.

5. The provisions of subsections | and 2 do no apply to the
disposal of used or waste motor vehicle batters or motor vehicle tires if
the unavailability of a site that has been issued a permit by the state
department of conservation and natural resources makes disposal at
such a site impracticable. The provisions of this subsection do not
exempt a person from any other regulation of the department
concerning the disposal of used or waste motor vehicle batteries or
motor vehicle tires.

UNLAWFUL DISPOSAL OF GARBAGE OR SEWAGE

444.630 Penalty; enforcement; identification of

violator.

1. As used in this section, “garbage” includes swill, refuse, cans,
bottles, paper, vegetable matter, carcass of any dead animal, offal from
any slaughter pen or butcher shop, trash or rubbish.

2. Every person who willfully places, deposits or dumps, or who
causes to be placed, deposited or dumped, or who causes or allows to
overflow, any sewage, sludge, cesspool or septic tank effluent, or
accumulation of human excreta, or any garbage, in or upon any street,
alley, public highway or road in common use, or upon any public park
or other public property other than property designated or set aside for
such a purpose by the governing body having charge thereof, or upon
any private property into or upon which the public is admitted by
easement, license or otherwise, is guilty of a misdemeanor and, if the
convicted person agrees, he shall be sentenced to perform 10 hours of
work for the benefit of the community under the conditions prescribed

86

in NRS 176.087.
3. Except as otherwise provided in NRS 444.585, ownership of
garbage does not transfer from the person who originally possessed it

solid waste pursuant to this chapter or until it is disposed of at a
municipal disposal site. Identification of the owner of any garbage
which is disposed of in violation of subsection 2 creates a reasonable
inference that the owner is the person who disposed of the garbage.
The fact that the disposal of the garbage was not witnessed does not, in
and of itself, preclude the identification of the owner.

4. All health officers, game wardens, police officers of cities and
towns, sheriffs and their deputies, and other peace officers of the State
of Nevada shall, within their respective jurisdictions, enforce the
provisions of this section.

5. A district health officer or his deputy may issue a citation for
any violation of this section which occurs within his jurisdiction.

6. To effectuate the purposes of this section, the persons
charged with enforcing this section may request information from any:

(a) Agency of the state or its political subdivisions.

(b) Employer, public or private.

(c) Employee organization or trust of any kind.

(d) Financial institution or other entity which is in the business
of providing credit reports.

(e) Public utility.

Each of these persons and entities, their officers and employees, shall
cooperate by providing any information in their possession which may
aid in the location and identification of a person believed to be in
violation of subsection 2. A disclosure made in good faith pursuant to
this subsection does not give rise to any action for damages for the
disclosure.

SANITATION
444.635 Civil penalties; collection; use of money

restricted
1. Any person convicted of violating NRS 444.555 and, in

87

until it is received for transport by_a_nerson_authorized to dispose-of ——

addition to the penalty imposed in NRS 444.583 or 444.630, any person
convicted of violating NRS 444.583 or 444 630 is liable for a civil
penalty, upon each such conviction. = i

“ 2: Every court, before whom a defendant is convicted of a
violation of NRS 444.555, 444.583 or 444.630, shall order the
defendant to pay a civil penalty which is at least $250 but not more than
$2,000. If so provided by the court, the penalty may be paid in
installments.

3. The health authority or division of environmental protection
of the state department of conservation and natural resources may
attempt to collect all such penalties and installments which are in default
in any manner provided by law for the enforcement of a Judgment.

4. Each court which receives money under the provisions of this
section shall forthwith remit the money to the division of environmental
protection or, if the health authority initiated the action, the district
health department which shall deposit the money with the state treasurer
for credit in a separate account in the state general fund or with the
county treasurer for deposit in an
account for the district health department, as the case may be. Money
SO deposited must be used only to pay rewards pursuant to NRS
444.640 or for the management of solid waste and paid as other claims
against the state or local governments are paid.

(Added to NRS by 1987, 1490; A 1991, 673)

444.640 Reward for information leading to arrest and
conviction of violator;

regulations

1. The division of environmental protection of the state
department of conservation and natural resources or the district health
department shall offer a reward. in an amount equal to 50 percent of the
civil penalty imposed pursuant to NRS 444 635, for information leading
to the arrest and conviction of any person violating NRS 444.555 or
444 630. The reward must be paid upon his conviction and the payment
in full of the penalty. The reward must be distributed equally among the
persons who supplied the information which led to the arrest and
conviction.

88

2. The state environmental commission or district board of
health may adopt regulations necessary to carry out the provisions of
this section.

TRAFFIC LAWS

484.397 Police officer authorized to remove certain

vehicles

1. Whenever any police officer finds a vehicle standing upon a
highway in violation of any of the provisions of this chapter, such officer
may move such vehicle, or require the driver or person in charge of the
vehicle to move it to a position off the paved or improved or
main-traveled part of such highway.

2. Whenever any police officer finds a vehicle unattended upon
any highway, bridge or causeway, or in any tunnel where such vehicle
constitutes an obstruction to traffic, such officer may provide for the
removal of such vehicle in any manner provided by law.

3. Any police officer may remove any vehicle or part of a vehicle
found on the highway, or cause it to be removed, to the nearest garage
or other place of safekeeping if.

(a) The vehicle has been involved in an accident and is so
disabled that its normal operation is impossible or impractical and the
person or persons in charge of the vehicle are incapacitated by reason
of physical injury or other reason to such an extent as to be unable to
provide for its removal or custody, or are not in the immediate vicinity
of the disabled vehicle;

(b) The person driving or in actual physical control of the vehicle
is arrested for any alleged offense for which the officer is required by
law to take the person arrested before a proper magistrate without
unnecessa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1229%3A1. Public record. Not legal advice.