Ames v. City of Bainbridge Island

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KELLY SAMSON; SALLY SAMSON;
CHARLES KUHN; SARAH KUHN; JOHN
L. SUTHERLAND; CAROLE D.
SUTHERLAND; THOMAS E. MORGAN,
III; BETH BRYSON MORGAN;
THOMAS E MORGAN CHILDREN’S
TRUST; BLAKELY ROCK HOLDINGS
LLC; A. GARY AMES; BARBARA J. No. 10-35352
AMES; A GARY AND BARBARA J. D.C. No.
 AMES LIVING TRUST; MARK D. 3:05-cv-05197-RJB
LAROCHE; TRINA LAROCHE; BLAKELY
OPINION PROPERTIES LLC; SAMSON FAMILY
LAND COMPANY, LLC; BLAKELY
HARBOR PROPERTIES LLC,
Plaintiffs-Appellants,
v.
CITY OF BAINBRIDGE ISLAND,
Defendant-Appellee. 
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
March 8, 2012—Seattle, Washington
Filed June 15, 2012
6939

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Before: Richard A. Paez and Mary H. Murguia,
Circuit Judges, and James S. Gwin, District Judge.*
Opinion by Judge Paez
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
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COUNSEL
Averil Rothrock and Aaron Matthew Laing — Schwabe Wil-
liamson & Wyatt, PC, Seattle, Washington; and Dennis Reyn-
olds — Law Office of Dennis D. Reynolds, Bainbridge
Island, Washington, for the plaintiffs-appellants.
Michael Charles Walter, Amanda Gabrielle Butler, and Ran-
dal Wayne Ebberson — Keating Bucklin & McCormack Inc.
P.S., Seattle, Washington; and Rod P. Kaseguma, Rosemary
A. Larson, and William A Linton — Inslee, Best, Doezie &
Ryder, P.S., Bellevue, Washington, for the defendant-
appellee.
Daniel A. Himebaugh — Pacific Legal Foundation, Bellevue,
Washington, for amicus curiae Pacific Legal Foundation.
OPINION
PAEZ, Circuit Judge:
“Full indeed is earth of woes, and full the sea,” remarked
Hesiod,1 and reviewing the long odyssey of Kelly and Sally
Samson, we are inclined to agree. The pair own waterfront
property in picturesque Blakely Harbor in the City of Bain-
bridge Island. They devoutly wished to build a pier or a dock
on their property during a time when local authorities had
imposed a moratorium on such projects. The Samsons and
some of their fellow landowners waged a long campaign
against the moratorium in the state courts, and ultimately won
a judgment declaring that the moratorium violated the state
constitution. That victory was a hollow one, however, because
the state courts upheld permanent changes to Bainbridge’s
1Hesiod, Works and Days, in 2 The Library of Original Sources 28 (Oli-
ver J. Thatcher ed., 1901).
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shoreline land-use laws that permanently deferred the Sam-
sons’ dreams.
The Samsons come now to the federal courts, seeking dam-
ages for the thirty-one months during which they were barred
from improving their shoreline property by the moratorium on
new projects. They assert that the moratorium violated their
substantive and procedural due process rights under the Four-
teenth Amendment, and seek damages against the city under
42 U.S.C. § 1983. We conclude that the moratorium ordi-
nances were validly enacted, nonarbitrary, and manifestly
related to the city’s legitimate municipal interests. Accord-
ingly, we hold that the City of Bainbridge Island did not vio-
late the Samsons’ constitutional rights, and we affirm.
Background
Kelly and Sally Samson2 own waterfront residential prop-
erty in Blakely Harbor, a bay on the southeast side of Bain-
bridge Island, in Puget Sound. In Washington, shoreline
property like the Samsons’ is subject to a regulatory scheme
that consists of three parts: (1) the Shoreline Management Act
of 1971, Wash. Rev. Code §§ 90.58.10-930, a state statute
that provides a basic framework for shoreline management;
(2) the Washington Department of Ecology’s regulations
implementing the Act, see generally Wash. Admin. Code tit.
173; and (3) Shoreline Master Programs, which are compre-
hensive use plans adopted by local jurisdictions and approved
by the Department of Ecology, see Wash. Rev. Code
§ 90.58.030(3)(c).
The City of Bainbridge Island (“Bainbridge”) adopted a
2Following the practice of the district court and the litigants, we use
“the Samsons” as a metonym for the eighteen natural persons and corpo-
rate entities that constitute the Plaintiffs-Appellants in this appeal. All
eighteen appellants own residential waterfront property in Blakely Harbor
and were affected by the moratorium.
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Shoreline Master Program in 1996. In 2000, the Washington
Department of Ecology revised its statewide shoreline regula-
tions. State law in effect at the time required Bainbridge to
update its Shoreline Master Program to comply with the new
regulations within two years of their passage. See Wash. Rev.
Code § 90.58.080 (West 2000) (“Local governments shall
develop or amend, within twenty-four months after the adop-
tion of guidelines as provided in RCW 90.58.060, a master
program for regulation of uses of the shorelines of the state
consistent with the required elements of the guidelines
adopted by the department.”).3 Bainbridge thus began a com-
prehensive review of its 1996 Shoreline Master Program.
At the prompting of local residents and community associa-
tions, Bainbridge considered proposed restrictions on over-
water shoreline development, such as private docks and piers.
Critics of shoreline development particularly focused on
Blakely Harbor. Blakely Harbor is the least developed and
most rural of Bainbridge’s various harbors, and many resi-
dents were keen to preserve its pristine character. Bain-
bridge’s own Harbor Management Plan, adopted by the City
Council in 1999, praised Blakely Harbor for its “relatively
undeveloped” character, and stated that preventing the prolif-
eration of manmade over-water structures was a “specific
goal[ ]” for the city.4
3The state legislature amended the Shoreline Master Program require-
ments in 2003. The amendments eliminated the requirement that cities
update their Shoreline Master Programs within two years of a change to
state guidelines, and substituted a county-by-county update schedule. See
An Act Relating to shoreline management; and amending RCW
90.58.060, 90.58.080, and 90.58.250, ch. 262, 2003 Wash. Laws 1424-25.
According to the new schedule, cities in Kitsap County—where Bain-
bridge Island is located—were required to update their Shoreline Master
Programs by December 1, 2011. See Wash. Rev. Code
§ 90.58.080(2)(a)(iii) (West 2004).
4Blakely Harbor remains “the last harbor within Central Puget Sound
that remains largely undeveloped with docks.” See City of Bainbridge
Island, 2006 Blakely Harbor Dock Shoreline Amendment Fact Sheet 1
(Aug. 2006), available at http://www.ci.bainbridge-isl.wa.us/documents/
Blakely_Dock_Fact_Sheet_Aug2006.pdf.
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On August 8, 2001, the City Council adopted Ordinance
No. 2001-32. The ordinance imposed a moratorium on
“shoreline substantial development applications for construc-
tion of new docks and piers . . . in Blakely Harbor.”5 The ordi-
nance was passed on an emergency basis and without a public
hearing, though a public hearing was held after adoption. The
ordinance included prefatory language taking note of the pau-
city of docks and piers in Blakely Harbor and observing that
none had been constructed in the previous thirty years. The
ordinance also expressed the City Council’s view that the
moratorium was “necessary for the protection of the public
health, safety, property, or peace.”
Two weeks later, the City Council passed Ordinance No.
2001-34, which expanded the scope of the moratorium to
apply to permit applications for a broader range of develop-
ment projects anywhere on the island. The amendment clari-
fied, however, that the moratorium did not apply to permit
applications for projects involving preexisting structures, such
as maintenance, repair, and restoration projects. The expanded
ordinance listed a variety of new justifications for the morato-
rium. These included the threat that shoreline structures posed
to critical shoreline habitat, the need to preserve what little
undeveloped shoreline remained on the heavily developed
island, and the importance of holding construction activity in
abeyance while the city completed the revisions to its Shore-
line Master Program.
Six weeks later, the City Council adopted Ordinance No.
2001-45, which narrowed the moratorium so that it applied
only to applications for “new overwater structures (piers,
5Washington law requires that all shoreline development in Washington
be consistent with the policy of the Shoreline Management Act and any
local shoreline master program. Wash. Rev. Code § 90.58.140(1). To
effectuate this requirement, state law provides that any “substantial devel-
opment” on state shorelines first requires a substantial development per-
mit. Id. § 90.58.140(2). The Bainbridge moratorium functioned to prevent
residents from filing applications for such permits.
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docks and floats) and new shoreline armoring (bulkheads and
revetments) where none has previously existed.” With Ordi-
nance No. 2001-45, the City Council issued findings of fact
that it developed from public testimony and other evidence
presented at public hearings held after the passage of Ordi-
nance No. 2001-34. The City Council found, inter alia, that
shoreline structures such as piers, docks, and bulkheads had
the “potential to cause significant impact to critical shoreline
habitat” and to adversely affect juvenile salmon populations.
The City Council also adopted the estimates of city planners
that in the time it would take to revise the Shoreline Master
Program, Bainbridge would receive “at least 14 shoreline sub-
stantial development permit applications and 29 shoreline
substantial development exemption applications” if no mora-
torium were in effect.
In November of 2001, a group of residents sued Bainbridge
in Kitsap County Superior Court, seeking a declaration that
the “rolling” moratorium was illegal and void (the “Biggers
litigation”). See Biggers v. City of Bainbridge Island, 169
P.3d 14, 17-19 (Wash. 2007). While the litigation was pend-
ing, Bainbridge officials reviewed an environmental assess-
ment and prepared a draft updated Shoreline Master Program.
Id.
Almost a year later, on August 14, 2002, the City Council
adopted Ordinance No. 2002-29, which extended the term of
the moratorium to March 1, 2003. The ordinance, which was
enacted after a public hearing, provided that the moratorium
would last until early 2003. Days before the moratorium
expired, the City Council adopted Ordinance No. 2003-13 on
an emergency basis, which extended it to September 1, 2003.
Before the second deadline expired, the state superior court
issued a decision in the Biggers litigation. The court invali-
dated the moratorium, holding that the city “overstepped its
constitutional limits” by failing to exempt structures under
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$2,500 and by trenching on the authority of the state Depart-
ment of Ecology.
Bainbridge appealed to the Washington Court of Appeals.
Bainbridge moved to stay the superior court’s judgment pur-
suant to Washington Rule of Appellate Procedure 8.1(b). The
Court of Appeals granted the stay.6 City officials announced
in a press release that they would continue to refuse to accept
building permit applications for over-water structures during
the pendency of the appeal, despite the superior court’s judg-
ment. On August 27, 2003—two weeks after the state trial
court invalidated the moratorium ordinances—the City Coun-
cil adopted Ordinance No. 2003-34, which extended the mor-
atorium for Blakely Harbor until March 1, 2004.
Shortly thereafter, the City Council amended the Shoreline
Master Program to permanently ban new dock construction in
Blakely Harbor. These permanent restrictions were identical
to the restrictions in the moratorium, so the amendments to
the Shoreline Master Program had the effect of terminating
the moratorium. The Washington Department of Ecology
approved the permanent modifications to Bainbridge’s Shore-
line Master Program in early 2004.
After the city amended the Shoreline Master Program, the
Biggers litigation reached the Washington Supreme Court. A
divided court affirmed the superior court’s judgment that the
rolling moratorium violated the state constitution. See Big-
gers, 169 P.3d at 17. In a separate case two years later, how-
ever, the Washington Court of Appeals upheld Bainbridge’s
permanent amendments to its Shoreline Master Program pro-
hibiting construction of new single-use private docks in
Blakely Harbor. See Samson v. City of Bainbridge Island, 202
P.3d 334 (Wash. Ct. App. 2009). The Washington Supreme
6Rule 8.1(b) provides that a stay of a trial court judgment issues as a
matter of right if the judgment “affect[s] real, personal or intellectual prop-
erty.”
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Court denied review. Samson v. City of Bainbridge Island,
218 P.3d 921 (Wash. 2009). Bainbridge’s revised Shoreline
Master Program thus remains in effect, and continues to pro-
tect Blakely Harbor’s primeval character.
While the Biggers litigation was pending, the Samsons and
eight other property owners filed multiple new actions in Kit-
sap County Superior Court, alleging a variety of state-law
claims as well as federal constitutional claims under 42
U.S.C. § 1983. Bainbridge removed the cases to the United
States District Court for the Western District of Washington,
which consolidated the actions. The Samsons and Bainbridge
filed cross-motions for summary judgment on the federal
claims. The district court granted summary judgment in favor
of Bainbridge, holding that the Samsons had not raised a gen-
uine issue of fact on their equal protection, substantive due
process, and procedural due process claims. The Samsons
now appeal the adverse summary judgment on their substan-
tive and procedural due process claims only.
The district court had jurisdiction over the Samsons’ claims
under 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
Discussion
I. Substantive due process claim.
A government entity may be held liable under 42 U.S.C.
§ 1983 if an “action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regula-
tion, or decision officially adopted and promulgated by that
body’s officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 (1978). The Samsons allege that Bainbridge violated their
substantive due process rights when it enforced the develop-
ment moratorium, which was enacted and repeatedly extended
by city ordinances. The district court granted summary judg-
ment for Bainbridge on this substantive due process claim.
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We review de novo the grant of summary judgment. See
Sharrock v. United States, 673 F.3d 1117, 1119 (9th Cir.
2012). In this case, there are no disputes about the material
facts; the only question is the legal one of whether the district
court correctly ruled that Bainbridge did not violate the Sam-
sons’ constitutional rights.7 See Trantina v. United States, 512
F.3d 567, 570 n.2 (9th Cir. 2008).
[1] “The Fourteenth Amendment prohibits states from
‘depriv[ing] any person of life, liberty, or property, without
due process of law.’ U.S. Const. amend. XIV, § 1. At the
threshold, a claim under § 1983 for an unconstitutional depri-
vation of property must show (1) a deprivation (2) of property
(3) under color of state law.” Newman v. Sathyavaglswaran,
287 F.3d 786, 789 (9th Cir. 2002) (alteration in original).
“[P]roperty interests derive not from the Constitution but from
‘existing rules or understandings that stem from an indepen-
dent source such as state law—rules or understandings that
secure certain benefits and that support claims of entitlement
to those benefits.’ ” Gallo v. U.S. Dist. Court, 349 F.3d 1169,
1178 (9th Cir. 2003) (quoting Bd. of Regents of State Coll. v.
Roth, 408 U.S. 564, 577 (1972)). “[F]ederal constitutional
law,” however, “determines whether that interest rises to the
level of a legitimate claim of entitlement protected by the Due
Process Clause.” Memphis Light, Gas & Water Div. v. Craft,
436 U.S. 1, 9 (1978) (internal quotation marks omitted).
7The only disputed question of fact is whether any of the Appellants in
this case applied for a shoreline development permit during the time the
moratorium was in effect. Bainbridge claims that none did, and the city
implies—though it does not argue outright—that, by consequence, the
Samsons lack standing to bring this suit. The Samsons aver, however, that
during the moratorium period, they attempted to submit a prepared dock
application to the proper authorities at City Hall, but were rebuffed by city
employees. Because the Samsons were injured by the city’s refusal to con-
sider their permit application, and so have standing to bring their constitu-
tional claims, we need not decide whether any Appellant would have
standing if the Samsons had not attempted to file a permit application.
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The parties dispute whether the Samsons have a property
interest sufficient to support their § 1983 claims. Bainbridge
argues that the property right the Samsons assert is merely the
“abstract need or desire to construct private, single-use docks
on Blakely Harbor.” Appellee’s Opening Br. 30. The Sam-
sons, on the other hand, insist that their property interest is
grounded firmly in Washington’s “vested rights doctrine,” an
unusual legal rule that gives Washington residents who apply
for building permits a vested right to have their application
processed according to the zoning and building ordinances
prevailing at the time of the application. See West Main
Assocs. v. City of Bellevue, 720 P.2d 782, 785 (Wash. 1986).
We need not determine whether the Samsons had a cogni-
zable property interest, whether emanating from the vested
rights doctrine or from some more fundamental source.
Because even assuming that the Samsons did have such a
property interest, we conclude that Bainbridge did not violate
the Samsons’ substantive due process rights.
[2] As the Samsons concede, the moratorium did not
impinge on their fundamental rights. See Jackson Water
Works, Inc. v. Pub. Utils. Comm’n, 793 F.2d 1090, 1093 (9th
Cir. 1986) (noting that government action that “affects only
economic” interests does not implicate fundamental rights).
“The Supreme Court has ‘long eschewed . . . heightened
[means-ends] scrutiny when addressing substantive due pro-
cess challenges to government regulation’ that does not
impinge on fundamental rights.” Shanks v. Dressel, 540 F.3d
1082, 1088 (9th Cir. 2008) (alterations in original) (quoting
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 545 (2005)).
Hence, to establish a substantive due process violation, the
Samsons must show that Bainbridge’s ordinances establishing
and extending the moratorium were “clearly arbitrary and
unreasonable, having no substantial relation to the public
health, safety, morals or general welfare.” Kawaoka v. City of
Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994) (internal
quotation marks omitted). The ordinances are “presumed
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valid, and this presumption is overcome only by a clear show-
ing of arbitrariness and irrationality.” Id. (internal quotation
marks omitted). The Samsons have not met this “exceedingly
high burden.” Shanks, 540 F.3d at 1088 (internal quotation
marks omitted).
The Samsons do not seriously dispute that Bainbridge had
legitimate interests in protecting wildlife and preserving the
development status quo as it prepared to update the Shoreline
Master Program. Instead, they argue that Bainbridge’s con-
duct was arbitrary and unreasonable because: (1) the city used
a rolling development moratorium in lieu of existing alterna-
tive regulatory mechanisms; (2) the city continued to extend
the moratorium without making progress toward comprehen-
sively updating its Shoreline Master Program; (3) the city
extended the moratorium even after the Kitsap County Supe-
rior Court declared the enacting ordinances invalid under the
state constitution; and (4) the Washington Supreme Court
held that the rolling moratorium violated the state constitution
in the Biggers litigation.
[3] None of these rises to the level of “egregious official
conduct.” Id. (“When executive action like a discrete permit-
ting decision is at issue, only egregious official conduct can
be said to be arbitrary in the constitutional sense: it must
amount to an abuse of power lacking any reasonable justifica-
tion in the service of a legitimate governmental objective.”)
(internal quotation marks omitted). First, the choice of a mor-
atorium as the favored policy mechanism for regulating devel-
opment was nonarbitrary. As the Supreme Court has
recognized in its regulatory takings cases, “moratoria, or
‘interim development controls’ as they are often called, are an
essential tool of successful development.” Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,
338 (2002). Bainbridge’s own findings of fact reflect why this
is so: when regulatory changes are pending, cities typically
receive an increased volume of applications from landowners
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seeking to be subject to the existing regime.8 In light of the
city’s intention in 2001 to revise its Shoreline Master Pro-
gram, the policy choice of a development moratorium seems
not just nonarbitrary, but positively sensible.
The Samsons’ second argument is that Bainbridge’s excuse
that it needed time to revise the Shoreline Master Program
was pretextual. They point out that Bainbridge did not modify
the Shoreline Master Program until after the superior court
declared the moratorium unlawful, and further observe that
Bainbridge abandoned the planned comprehensive update of
the Shoreline Master Program in favor of a standalone amend-
ment applicable only to Blakely Harbor. Bainbridge replies
that it continued to work on the comprehensive Shoreline
Master Program update throughout the moratorium period.
[4] We are not persuaded that the process of revising the
Shoreline Master Plan was a ruse designed to justify the arbi-
trary deprivation of the property rights of Blakely Harbor resi-
dents. The Samsons have no concrete evidence that the city
was dilatory in updating the Shoreline Master Program, or
was using the updating process as a pretext for some more
malicious objective. Further, the law at the time required the
city to update the Shoreline Master Program, see Wash. Rev.
Code § 90.58.080 (West 2000), and the Bainbridge City
Council did ultimately adopt permanent amendments. And the
8This problem is surely exacerbated by Washington’s vested rights doc-
trine, which creates an additional incentive to vest a permit application
before regulatory changes take effect. The Samsons make great hay of the
fact that the city’s “admitted objective” in passing the moratorium was to
prevent the Samsons from vesting their development rights. But that is
precisely the point: a moratorium was the only mechanism that allowed
Bainbridge to revise its Shoreline Master Program without triggering a
vesting stampede by landowners concerned about new restrictions—one
that could have obviated any regulatory changes before they took effect.
Cf. Tahoe-Sierra, 535 U.S. at 339 (“To the extent that communities are
forced to abandon using moratoria, landowners will have incentives to
develop their property quickly before a comprehensive plan can be
enacted, thereby fostering inefficient and ill-conceived growth.”).
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fact that the prohibitions on development in Blakely Harbor
were ultimately the only changes the city made to the Shore-
line Master Program is hardly proof that Bainbridge was
merely going through the motions of a comprehensive update.
Development regulations in Blakely Harbor may well have
been the central issue in the comprehensive update process.
Third, the Samsons argue that Bainbridge acted egregiously
and arbitrarily when it voted to extend the moratorium several
weeks after the state superior court had declared it invalid.
The Samsons compare Bainbridge’s actions to those of the
Billings, Montana city council in Bateson v. Geisse, 857 F.2d
1300 (9th Cir. 1988). In Bateson, the city council voted not
to issue a building permit even though the applicant had satis-
fied all the requirements for the permit. Id. at 1302. It did so
in spite of the city attorney’s warning that the decision would
almost certainly be overturned in court and would expose the
city to substantial civil liability. Id. We held that the city
council’s vote was an “arbitrary administration of the local
regulations, which single[d] out one individual to be treated
discriminatorily” and constituted a deprivation of substantive
due process. Id. at 1303.
Bainbridge’s promulgation of the development moratorium
was nothing like the city council’s denial of a building permit
in Bateson. The city council’s action in Bateson was an idio-
syncratic decision about an individual permit-seeker; the
council ignored the city attorney’s advice and denied a permit
to which the applicant was legally entitled. Here, by contrast,
Bainbridge’s attorneys were convinced that the moratorium
was legal under state law and that the superior court had erred
in striking it down. More to the point, Bainbridge sought and
obtained a stay of the superior court’s judgment. It had good
reason to pursue a stay: lifting the moratorium during the pen-
dency of the appeal would have sparked a wave of ad hoc
development before the state court of appeals had the oppor-
tunity to review the superior court’s judgment.
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[5] The Bainbridge City Council obtained a stay of the
adverse judgment, continued to enforce the moratorium, and
pursued an appeal. These actions were nothing like the “arbi-
trary administration of the local regulations” that we decried
in Bateson. Id.
Finally, the Samsons argue that the Washington Supreme
Court’s judgment that the moratorium violated the state con-
stitution suffices to establish that Bainbridge is liable under
§ 1983. It is axiomatic, however, that not every violation of
state law amounts to an infringement of constitutional rights.
See Paul v. Davis, 424 U.S. 693, 700 (1976). “Unless there
is a breach of constitutional rights, . . . § 1983 does not pro-
vide redress in federal court for violations of state law.”
Schlette v. Burdick, 633 F.2d 920, 922 n.3 (9th Cir. 1980); see
also Couf v. DeBlaker, 652 F.2d 585, 590 n.11 (5th Cir. 1981)
(“The plaintiffs seem to urge that the defendants’ violation of
Florida [zoning] law provides a predicate for § 1983 recovery.
The state court litigation established such a violation, but not
every infraction of state law constitutes interference with a
constitutionally protected interest.”).
[6] The Biggers litigation presented only state-law issues.
See Biggers, 169 P.3d at 17. The state supreme court con-
cluded that the moratorium “disregards article XVII, section
1 of the Washington Constitution”; it neither considered nor
decided federal claims. Id. (Indeed, the state-law claims at
issue in Biggers are not even analagous to the due process
claims we consider here.) The case is therefore wholly inap-
posite to our analysis.9
9For this reason, we do not express a view on whether any of the posi-
tions expressed by the three opinions in Biggers represents the views of
a five-justice majority of the Washington Supreme Court. The parties, and
one amicus, argue at length about what, if any, precedential holding can
be extracted from Biggers. Because it is of no moment to this appeal, we
reserve that question for the Washington courts.
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[7] We conclude that the Samsons have failed to plead or
present sufficient evidence to allow their substantive due pro-
cess claim to proceed to trial. None of the conduct they
describe was arbitrary in the constitutional sense. At a mini-
mum, it is “at least fairly debatable” that Bainbridge furthered
its legitimate interest in orderly, environmentally protective
shoreline development by instating a moratorium on new
over-water projects. See Halverson v. Skagit Cnty., 42 F.3d
1257, 1262 (9th Cir. 1994) (internal quotation marks omitted).
II. Procedural due process claim.
The district court also granted summary judgment to Bain-
bridge on the Samsons’ procedural due process claim.
Because the Bainbridge City Council used validly enacted
ordinances to impose and extend the moratorium, we affirm.
[8] “Ordinarily, due process of law requires an opportunity
for ‘some kind of hearing’ prior to the deprivation of a signifi-
cant property interest.” Memphis Light, 436 U.S. at 19 (citing
Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). “However,
‘[w]hen the action complained of is legislative in nature, due
process is satisfied when the legislative body performs its
responsibilities in the normal manner prescribed by law.’ ”
Halverson, 42 F.3d at 1260 (alterations in original) (quoting
Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 957 (9th
Cir. 1991)).
[9] The City Council’s enactment of the various morato-
rium ordinances were lawful legislative acts, because the ordi-
nances applied generally to all owners of shoreline property
on Bainbridge Island (or later in Blakely Harbor).10 See id. at
10Even the first moratorium ordinance, which was adopted on an emer-
gency basis prior to a public hearing, was a legislative act. See Kuzinich
v. Cnty. of Santa Clara, 689 F.2d 1345, 1349-50 (9th Cir. 1982) (holding
that the enactment on an emergency basis of a zoning scheme of general
applicability was a legislative act).
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1261 (explaining that “governmental decisions which affect
large areas and are not directed at one or a few individuals”
are legislative in nature). Nothing in the record suggests that
the City Council adopted the various ordinances in an unlaw-
ful manner, and the Samsons do not assert that Bainbridge
failed to provide adequate notice of or forums for public hear-
ings.
[10] Procedural due process entitles citizens to a legislative
body that “performs its responsibilities in the normal manner
prescribed by law.” Id. at 1260 (internal quotation mark omit-
ted). The Bainbridge City Council hewed to its ordinary pro-
tocols when it passed the moratorium ordinances. The
Samsons’ rights were thus “protected in the only way that
they can be in a complex society, by their power, immediate
or remote, over those who make the rule.” Bi-Metallic Inv.
Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915).
Conclusion
It is surely vexing to the Samsons that they and their co-
plaintiffs successfully challenged the moratorium in state
court, but received no damages for their efforts. And it must
be more vexing still that they won the battle, but lost the war:
the state courts struck down the temporary moratorium, but
upheld the permanent ban on shoreline development. But the
federal courts do not exist to satisfy litigants who are unhappy
with what they received in state court. Nor do they exist to
second-guess the manner in which city officials promote the
public welfare. Because the Samsons have suffered no viola-
tion of their constitutional rights to substantive and procedural
due process, the district court’s order granting Bainbridge’s
motion for summary judgment is
AFFIRMED.
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