Gregory Garmong v. Tahoe Regional Planning Agency

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 30, 2020
• Docket: 18-16824
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 30 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY GARMONG, No. 18-16824

Plaintiff-Appellant, D.C. No. 3:17-cv-00444-RCJ-WGC v.

TAHOE REGIONAL PLANNING MEMORANDUM* AGENCY; et al.,

Defendants-Appellees,

and

TIM CARLSON; E. CLEMENT SHUTE, Jr.,

Defendants.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted March 26, 2020** Las Vegas, Nevada

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

Plaintiff Gregory Garmong filed this action in district court, challenging a

decision by the defendant Tahoe Regional Planning Agency (“TRPA”) to issue a

permit allowing a cell tower to be built in a mostly undeveloped area under the

agency’s purview. The district court dismissed Garmong’s complaint due to his

failure to establish Article III standing to bring his claims, but granted him leave to

amend. Garmong filed a first amended complaint, which the district court again

dismissed for lack of Article III standing. The district court dismissed with

prejudice and ordered the case closed. Garmong urges that this was error, on both

substantive and procedural grounds. We have jurisdiction under 28 U.S.C. § 1291,

and we reverse.

1. We review de novo a district court’s conclusion that a plaintiff lacks

Article III standing. Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177, 1184

(9th Cir. 2012). To satisfy Article III standing, a plaintiff must first show an injury

in fact that is (a) concrete and particularized and (b) actual or imminent. Bernhardt

v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (citing Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)).

Plaintiffs alleging a statutory violation must still establish a concrete injury.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016).

2 Garmong’s first amended complaint was in part based on alleged procedural

violations committed by the TRPA. Environmental plaintiffs like Garmong can

establish an injury in fact “by showing a connection to the area of concern

sufficient to make credible the contention that the person’s future life will be less

enjoyable . . . if the area in question remains or becomes environmentally

degraded.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149

(9th Cir. 2000). Garmong alleged that in the past he has used the area around the

cell tower for personal fitness, recreation, and nature-study, and that he plans to

continue doing so in the future. He further alleged that the cell tower will

“interrupt the view path for one of [his] primary locations to enjoy Lake Tahoe

vistas in peaceful contemplation.” The TRPA’s own documents support the

plausibility of this allegation.

Having satisfied the injury requirement, Garmong must also show that his

injury is fairly traceable to the challenged conduct of the TRPA and that it is likely

his injury will be redressed by a favorable decision of a court. Bernhardt, 279

F.3d at 868–69. However, “[w]here, as here, claims rest on a procedural injury, the

causation and redressability requirements are relaxed.” Ctr. for Biological

Diversity v. Mattis, 868 F.3d 803, 817 (9th Cir. 2017) (internal quotation marks

omitted). Garmong has cleared these low barriers. He alleges that the TRPA has

3 failed to consider its own regulations, and asks that a court prohibit the permit from

being “legally . . . maintained.” Accordingly, we hold that Garmong alleged facts

sufficient to establish Article III standing.

Our inquiry does not end there. We must also ask whether a statute confers

standing on Garmong to bring his claims. Cetacean Cmty. v. Bush, 386 F.3d 1169,

1175 (9th Cir. 2004). The TRPA Compact, by which the agency is governed,

allows “[a]ny aggrieved person [to] file an action in an appropriate court of the

States of California or Nevada or of the United States alleging noncompliance with

the provisions of [the] compact or with an ordinance or regulation of the agency.”

An “aggrieved person” includes anyone who appeared in person before the agency

at an appropriate administrative hearing to object to the action being challenged.

Garmong attended the public hearing on the cell tower proposal and gave public

comment, as well as appealed the resultant decision to the TRPA Board of

Directors, which unanimously denied the appeal. Accordingly, we hold that

Garmong had statutory standing to bring his claim.

2. Garmong’s amended complaint alleged thirty-four claims for relief.

When the district court dismissed Garmong’s amended complaint for lack of

Article III standing, it did so without conducting a claim-by-claim analysis. This

was error. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)

4 (“Standing is not dispensed in gross.” (internal quotation marks omitted)); Allen v.

Wright, 468 U.S. 737, 752 (1984) (“[T]he standing inquiry requires careful judicial

examination of a complaint’s allegations to ascertain whether the particular

plaintiff is entitled to an adjudication of the particular claims asserted.”), abrogated

on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572

U.S. 118 (2014). Upon remand, the district court need not repeat its standing

analysis for claims that rely on the same underlying injury, but should analyze

whether Garmong has standing for each category of claims asserted in his amended

complaint. See Valley Outdoor, Inc. v. City of Riverside, 446 F.3d 948, 952–53

(9th Cir. 2006) (analyzing categories of claims on a claim-by-claim basis).

3. In a hearing prior to its dismissal of Garmong’s complaint for the second

and final time, the district court assured Garmong that it would grant him leave to

further amend his complaint. However, it entered its dismissal without waiting for

an amended complaint. This was an abuse of discretion. See Lopez v. Smith, 203

F.3d 1122, 1130 (9th Cir. 2000) (en banc). Federal Rule of Civil Procedure

15(a)(2) provides that courts “should freely give leave when justice so requires.”

More important, the district court reneged on an explicit assurance without

explanation. In similar situations we have previously granted relief. See, e.g.,

United States v. Buchanan, 59 F.3d 914, 918 (9th Cir. 1995) (“Litigants need to be

5 able to trust the oral pronouncements of district court judges.”). Accordingly, upon

remand, the district court should give Garmong the option of further amending his

complaint.

4. Finally, Garmong appeals the district court’s denial of his motion for a

preliminary injunction. The district court did not conduct a standalone analysis for

the preliminary injunction; rather, it relied on its reasoning from an earlier decision

denying a temporary restraining order requested by Garmong. Furthermore, the

district court denied Garmong’s motion for a preliminary injunction in the same

sentence that it concluded that he lacked standing, making it difficult to determine

the extent to which its standing determination factored into the denial. We

therefore vacate the district court’s denial and instruct the district court to conduct

an appropriate analysis of the request for a preliminary injunction.

REVERSED and REMANDED. Costs are taxed against the defendants.

See FED. R. APP. P. 39(a)(3).