UNPUBLISHED -- Not for citation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
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.
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)
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]
OPINION: MEMORANDUM [FN 1]
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.
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.
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)).
We affirm the district court's denial of preliminary injunctive relief against Ventura and the USDA.