United States v. 2005-01-12 | 02-17346 | SQUAW VALLEY VGOLDBERG | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SQUAW VALLEY DEVELOPMENT
COMPANY; SQUAW VALLEY SKI
CORPORATION; SQUAW VALLEY No. 02-17346
PRESERVE, D.C. No.
Plaintiffs-Appellants, CV 01-2031 WBS 
v. ED Cal.
MARTIN GOLDBERG; HAROLD ORDER
SINGER,
Defendants-Appellees. 
Filed January 13, 2005
Before: A. Wallace Tashima and Richard R. Clifton,
Circuit Judges, and Ronald B. Leighton,* District Judge.
ORDER
Defendant-Appellee Harold Singer petitions for panel
rehearing and for rehearing en banc. He argues, inter alia, that
our decision permitting Squaw Valley to proceed on its “class
of one” claim against Singer, see Squaw Valley Dev. Co. v.
Goldberg, 375 F.3d 936, 944-48 (9th Cir. 2004) (“Squaw Val-
ley I”), conflicts with Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000), because Squaw Valley “failed to estab-
lish that any other dischargers that were treated differently
were ‘similarly situated’ ” to Squaw Valley. We reject the
argument because it is made for the first time in Singer’s peti-
tion for rehearing.
*The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
495

-- 1 of 4 --

It is true, as Singer contends, that we stated in our opinion
that Squaw Valley “present[ed] no evidence that any other
discharger is of comparable size, has a comparable history of
non-compliance, engages in a comparable level of activity on
its land, and has a comparable history of administrative action
being ineffective. As the district court repeatedly stated,
Squaw Valley is not comparing ‘apples to apples.’ ” Squaw
Valley I, 375 F.3d at 945. But the reason that no such evi-
dence was presented was because the issue was not raised or
contested on Singer’s motion for summary judgment. Thus,
that statement was made in the context of demonstrating that
the record supports that Singer had a rational basis for his
exceptionally close scrutiny and oversight of Squaw Valley.
As we stated at the end of that part of our opinion, Part II.B
(Rational Basis):
In total, it is not enough to show that of the 800
dischargers regulated by the Lahontan Board, Singer
and Goldberg favored more formal enforcement
measures against Squaw Valley. As regulators, they
articulated a rational reason for their actions—they
perceived Squaw Valley to be a large and active dis-
charger, with a history of non-compliance, that
resisted less severe regulatory efforts. Thus, to suc-
ceed on its equal protection claims, Squaw Valley
must show that Singer and Goldberg were motivated
by some personal or extra-statutory end.
Id.
Singer never contended or argued in his brief that no other
dischargers under the jurisdiction of the Lahontan Board were
“similarly situated” to Squaw Valley. At least for purposes of
this appeal, Singer conceded the issue:
Singer and Goldberg concede that “Squaw Valley
has shown disparate or unique treatment” because
they “have afforded Squaw Valley more oversight
496 SQUAW VALLEY DEVELOPMENT v. GOLDBERG

-- 2 of 4 --

. . . and have [favored] more formal regulatory and
enforcement action” as compared to other similarly-
situated dischargers.
Id. at 944 (quoting Appellees’ Brief at 45) (emphasis added).1
Singer also did not contest the issue below. Thus, the issue is
foreclosed and cannot be raised for the first time in Singer’s
petition for rehearing. See Greenwood v. FAA, 28 F.3d 971,
977 (9th Cir. 2003) (“We review only issues which are argued
specifically and distinctly in a party’s opening brief.”) (cita-
tion omitted); Harik v. Cal. Teachers Ass’n, 326 F.3d 1042,
1052 (9th Cir. 2003) (noting that “we do not ordinarily con-
sider on appeal issues not raised below”); Doi v. Halekulani
Corp., 276 F.3d 1131, 1140 (9th Cir. 2002).
For the foregoing reasons, the panel has voted to deny
Singer’s petition for panel rehearing. Judge Clifton also votes
to deny the petition for rehearing en banc, and Judges
Tashima and Leighton so recommend. The full court has been
advised of the petition for rehearing en banc and no judge of
the court has requested a vote on en banc rehearing. See Fed.
R. App. P. 35(f).
The petition for panel rehearing and the petition for rehear-
ing en banc are denied.
1See also Appellees’ Brief at 37 (“Where a suspect class is not at issue,
a plaintiff may still establish that a class-based distinction in enforcement
violates the Equal Protection Clause if he or she can show that officials
are using enforcement to obtain ends not contemplated by or consistent
with the law being enforced.”) (emphasis added) (citations omitted).
497 SQUAW VALLEY DEVELOPMENT v. GOLDBERG

-- 3 of 4 --

PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2005 Thomson/West.

-- 4 of 4 --