AVIATION NOISE LAW
County of Tooele v. U.S. Dept. Agriculture et al.
UNPUBLISHED -- Not for citation


U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

COUNTY OF TOOELE, UTAH, a subdivision of the State of Utah, Plaintiff-Appellant
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, an agency of the U.S. Government; DAN GLICKMAN,
Secretary of Agriculture; UNITED STATES DEPARTMENT OF AGRICULTURE RURAL DEVELOPMENT
AGENCY, a subdivision of the United States Department of Agriculture; LARRY J. SMITH, Acting State Director
of the United States Department of Agriculture; CITY OF WEST WENDOVER, NEVADA, a municipal corporation;
ANTHONY L. VENTURA, an individual, Defendants-Appellees.

No. 99-15332

Argued and Submitted October 6, 1999
Submission Deferred October 14, 1999
Resubmitted January 3, 2000
Resubmitted, San Francisco, California January 7, 2000, Filed

(Appeal from the U.S. District Court for the District of Nevada, D.C. No. CV-99-00023-DWH. David Warren Hagan, District Judge, Presiding)


COUNSEL:

For COUNTY OF TOOELE, UTAH, Plaintiff - Appellant: Cheryl A. Lau, Esq., TRANSPORTATION, INC., Carson City, NV.

For COUNTY OF TOOELE, UTAH, Plaintiff - Appellant: Barbara E. Lichman, Ph.D., Esq., CHEVALIER, ALLEN AND LICHMAN, LLP, Irvine, CA.

For UNITED STATES DEPARTMENT OF AGRICULTURE, DAN GLICKMAN, UNITED STATES DEPARTMENT OF AGRICULTURE RURAL DEVELOPMENT AGENCY, LARRY J. SMITH, Defendants - Appellees: Shirley A. Smith, Esq., OFFICE OF U.S. ATTORNEY, Reno, NV.

For UNITED STATES DEPARTMENT OF AGRICULTURE, DAN GLICKMAN, UNITED STATES DEPARTMENT OF AGRICULTURE RURAL DEVELOPMENT AGENCY, LARRY J. SMITH, Defendants - Appellees: Larry Hom, Esq., U.S. DEPARTMENT OF AGRICULTURE, Office of the General Counsel, San Francisco, CA.

For CITY OF WEST WENDOVER, NEVADA, Defendant - Appellee: David Stanton, GIOCOECHEA & DIGRAZIA LTD, Gary Di Grazia, Esq., CITY ATTORNEY OFFICE, City of West Wendover, Elko, NV.

For CITY OF WEST WENDOVER, NEVADA, Defendant - Appellee: John C. Boyden, Esq, ERICKSON, THORPE & SWAINSTON, Reno, NV.

For ANTHONY L. VENTURA, Defendant - Appellee: Glade L. Hall, Esq., Reno, NV.

For ANTHONY L. VENTURA, Defendant - Appellee: A. Grant Gerber, Esq., Elko, NY.


JUDGES: Before: PREGERSON, WIGGINS, Circuit Judges, and CARTER, District Judge. [FN 2]

[FN 2] The Honorable David O. Carter, United States District Judge for the Central District of California, sitting by designation.


OPINION: MEMORANDUM [FN 1]

[FN 1] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
This case involves two incompatible uses of land. Plaintiff Tooele County (Utah) owns an airport that straddles the Nevada-Utah border. Defendant Anthony Ventura owns land in Nevada that borders Tooele County's airport and on which he recently built a mobile home park. A second defendant, the United States Department of Agriculture ("USDA"), issued a conditional loan guarantee to the bank that financed the mobile home park development. Federal Aviation Administration regulations prohibit Tooele County from operating a runway in such close proximity to a mobile home park. As a result, Tooele County filed this suit in district court, alleging that the mobile home park is a private nuisance and that Ventura and the USDA violated the National Environmental Policy Act ("NEPA"). It asked the district court to enjoin (1) Ventura from developing the mobile home park and (2) the USDA from guaranteeing Ventura's loan. The district court denied preliminary injunctive relief. Tooele County appeals. We have jurisdiction pursuant to 28 U.S.C. 1292(a)(1) and we affirm. [FN 3]
[FN 3] Tooele County moved this court to take judicial notice of a minute order entered by the district court on July 1, 1999 (after it denied Tooele County's motion for a preliminary injunction) in which the district court transferred the case to a different judge "to avoid the appearance of impropriety." This court must take judicial notice of adjudicative facts "if requested by a party." FED. R. EVID. 201(d). An order issued by another court is appropriate for judicial notice. See, e.g., Papai v. Harbor Tug and Barge Co., 67 F.3d 203, 207 n.5 (9th Cir. 1995), rev'd on other grounds, 520 U.S. 548, 137 L. Ed. 2d 800, 117 S. Ct. 1535 (1997) (taking judicial notice of a decision and order of an Administrative Law Judge); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (taking judicial notice of a state court decision). Accordingly, we take judicial notice of the district court's July 1, 1999 minute order, but make clear that this evidence does not affect our decision in any way.
We review the denial of a preliminary injunction for an abuse of discretion. See Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). Preliminary injunctive relief should be granted if "the moving party . . . shows either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions [as to the merits] are raised and the balance of hardships tips in its favor." United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir.1992) (internal quotations omitted). "Under either formulation of the test, the party seeking the injunction must demonstrate that it will be exposed to some significant risk of irreparable injury." Associated General Contractors of California v. Coalition for Economic Equality, 950 F.2d 1401, 1410 (9th Cir. 1991). The district court decided that Tooele County failed to either establish a likelihood of success on the merits or raise serious questions as to merits about either cause of action. This decision does not constitute an abuse of discretion.


I

In Nevada, "an actionable nuisance is an intentional interference with the use and enjoyment of land that is both substantial and unreasonable." Culley v. County of Elko, 101 Nev. 838, 841, 711 P.2d 864 (1985) (citing Jezowski v. City of Reno, 71 Nev. 233, 286 P.2d 257 (1955)); see also NEV. REV. STAT. § 40.140 (defining a nuisance as anything which is injurious to health . . . or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property"). It is unlikely that the mobile home park would be found to interfere unreasonably with the airport. The Second Circuit reject a similar claim, reasoning that "if the county were to prevail on its nuisance claim, then it will have taken some of defendants' property rights without compensation." County of Westchester v. County of Greenwich, Connecticut, 76 F.3d 42, 46 (2d Cir. 1996); see also Griggs v. County of Allegheny, Pennsylvania, 369 U.S. 84, 88, 7 L. Ed. 2d 585, 82 S. Ct. 531 (1962) (holding that an airport had taken an easement to airspace over neighboring property owner's land, requiring just compensation, where airport noise prevented the plaintiff from using residential property); Culley, 101 Nev. at 841-42 (finding an airport runway extension to be a private nuisance in a suit brought by neighboring landowners using their property for residential purposes). The same rationale applies to this case.

Nevertheless, Tooele County argues that the mobile home park is a per se private nuisance because an airport hazard is a statutory public nuisance in Nevada. See NEV. REV. STAT. § 497.030. It is unlikely that the Nevada legislature intended § 497.030 to dictate the outcome of private nuisance actions. First, the section to which Tooele County points is only a "declaration of policy" and what it declares is that "the creation or establishment of an airport hazard is a public nuisance," not a private nuisance. See id. (emphasis added). Second, the declaration of policy is part of a broader airport zoning statute that, among other things, enables political subdivisions to adopt airport zoning regulations, see NEV. REV. STAT. § 497.040, and to exercise Nevada's eminent domain power, see NEV. REV. STAT. *sect 497.270. More importantly, the statute authorizes political subdivisions to form joint airport zoning boards when an airport is located in one political subdivision and the airport hazard is located in another. See NEV. REV. STAT. § 497.050. Thus, reading Nevada's declaration of policy on airport hazards in the way that Tooele County urges -- as enabling airports, and the political subdivisions that operate them, to enjoin airport hazards as common law private nuisances -- would require us to ignore the Nevada legislature's intent.


II

NEPA commands all federal agencies to provide a detailed environmental impact statement on "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C). Generally, "the federal government is the only proper defendant in an action to compel compliance with NEPA," Churchill County v. Babbitt, 150 F.3d 1072, 1082 (9th Cir.), amended and superceded, 158 F.3d 491 (1998), but a narrow exception to this rule permits a nonfederal party to be named as a defendant under NEPA if federal and nonfederal participation in a project is "'sufficiently interrelated to constitute a single 'federal action' for NEPA purposes.'" Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397 (9th Cir. 1992) (quoting Friends of the Earth v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975)). The mere fact that Ventura applied for federal support, leading the USDA to conduct an environmental impact statement, does not make Ventura a proper NEPA defendant. See Friends of the Earth, 518 F.2d at 329 (nonfederal defendants could not be sued under NEPA because they had a "long standing commitment to proceed . . . even without federal financial assistance"); Homeowners Emergency Life Protection Committee v. Lynn, 388 F. Supp. 971, 974 (C.D. Cal. 1974), rev'd on other grounds, 541 F.2d 814, 817 (9th Cir. 1976) (finding no NEPA liability based on a nonfederal defendant's pending application for federal funding). Thus, it is unlikely that Tooele County will prevail on its NEPA claims against Ventura.


III

The district court decided that it would be senseless to enjoin the USDA from providing the loan guarantee in the absence of injunctive relief against Ventura. Ventura obtained financing for the mobile home park even though the loan guarantee never became effective. Nonetheless, Tooele County continues to seek injunctive relief against the USDA on the theory that the loan guarantee may become effective when this litigation is resolved. Even so, we fail to see how enjoining the USDA will provide a remedy to Tooele County. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) (holding that a plaintiff lacks standing to sue if it is unlikely that the plaintiff's "injury will be 'redressed by a favorable decision.'") (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)).


IV

We affirm the district court's denial of preliminary injunctive relief against Ventura and the USDA.

AFFIRMED.