Tri-Dam v. Scott Frazier

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2023
• Docket: 22-15246
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 2 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRI-DAM, Nos. 22-15246 22-15919 Plaintiff-Appellee, D.C. No. 1:20-cv-00408-SKO v.

SCOTT FRAZIER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Sheila K. Oberto, Magistrate Judge, Presiding

Argued and Submitted April 14, 2023 San Francisco, California

Before: S.R. THOMAS and H.A. THOMAS, Circuit Judges, and RAKOFF,** District Judge.

Scott Frazier appeals from the district court’s order granting in part Tri-

Dam’s motion for summary judgment, contending that (1) the district court lacked

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. subject-matter jurisdiction, (2) the Calaveras County Municipal Code’s (the

“Code”) delegation of authority to Tri-Dam is unconstitutional, (3) the district

court erred in holding that the Code applies retroactively, and (4) the district court

erred in denying Frazier’s laches defense.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district

court’s decision to grant summary judgment de novo. See Desire, LLC v. Manna

Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir.) (citation omitted), cert. denied, 142 S.

Ct. 343 (2021). We review whether subject-matter jurisdiction exists de novo.

Kingman Reef Atoll Invs., LLC. v. United States, 541 F.3d 1189, 1195 (9th Cir.

2008). We “review de novo a district court’s determination of state law.” Salve

Regina Coll. v. Russell, 499 U.S. 225, 231 (1991). We review a determination of

whether laches applies for abuse of discretion. Huseman v. Icicle Seafoods, Inc.,

471 F.3d 1116, 1125 (9th Cir. 2006); see also Johnson v. City of Loma Linda, 5

P.3d 874, 878 (Cal. 2000) (stating that under California law, “a trial court’s laches

ruling will be sustained on appeal if there is substantial evidence to support the

ruling”). We affirm.

Because the parties are familiar with the factual and procedural history of the

case, we need not recount it here.

2 I

The district court did not err in determining that it had subject-matter

jurisdiction. Federal district courts have original jurisdiction “of all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.

§ 1331. The well-pleaded complaint rule provides that federal-question

jurisdiction under § 1331 exists only when “a right or immunity created by the

Constitution or laws of the United States [is] an element, and an essential one, of

the plaintiff’s cause of action.” Phillips Petroleum Co. v. Texaco, Inc., 415 U.S.

125, 127–28 (1974) (citation omitted).

Federal district courts also have original jurisdiction “of any civil action or

proceeding arising under any Act of Congress regulating commerce or protecting

trade and commerce against restraints and monopolies.” 28 U.S.C. § 1337(a). The

Federal Power Act (“FPA”) constitutes an act of Congress regulating commerce.

See FERC v. Elec. Power Supply Ass’n, 577 U.S. 260, 264–65 (2016), as revised

(Jan. 28, 2016). “[T]he ‘arising under’ language in [section] 1337 is interpreted in

essentially the same way as the ‘arising under’ phrase in [section] 1331.” Garrett

v. Time-D.C., Inc., 502 F.2d 627, 629 (9th Cir. 1974).

Under a narrow exception to the well-pleaded-complaint rule, “federal

jurisdiction over a state-law claim will lie if a federal issue is ‘(1) necessarily

3 raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal

court without disrupting the federal-state balance approved by Congress.’” City of

Oakland v. BP PLC, 969 F.3d 895, 904 (9th Cir. 2020) (quoting Gunn v. Minton,

568 U.S. 251, 258 (2013)). “All four requirements must be met for federal

jurisdiction to be proper.” Id. at 904–05.

The district court did not err in determining that it had federal-question

jurisdiction pursuant to sections 1331 and 1337 under the narrow exception set

forth in Gunn. First, a federal issue is necessarily raised if it is “basic,”

“necessary,” “pivotal,” “direct,” or “essential” to the claim. Lippitt v. Raymond

James Fin. Servs., Inc., 340 F.3d 1033, 1045 (9th Cir. 2003). Here, Tri-Dam

alleges that Frazier’s unpermitted facilities violate the Shoreline Management Plan

(“SMP”) and the Code, because all facilities within the project boundary must be

approved by Tri-Dam through its permitting program, and to obtain a permit, the

facilities must be in conformance with the SMP. Tri-Dam’s complaint “expressly

invokes federal laws,” Sauk-Suiattle Indian Tribe v. City of Seattle, 56 F.4th 1179,

1185 (9th Cir. 2022), and the district court’s analysis regarding whether Frazier’s

facilities were legally installed under the SMP and the Federal Energy Regulatory

Commission (“FERC”) license played a central role in its decision that Tri-Dam

was entitled to summary judgment on its public-nuisance claim. Accordingly, the

4 district court’s interpretation of Tri-Dam’s SMP under its FERC license—a

substantial federal issue—was necessarily raised.

Second, on appeal, Frazier argues that the parties only “actually disputed”

whether his facilities constituted a public nuisance under the Code. However,

because Frazier disputed whether his property was “grandfathered” under the terms

of both the Code and the SMP, a federal issue was “actually disputed.”

Third, the inquiry as to whether a federal issue is “substantial” does not

focus on “the particular parties in the immediate suit,” but instead centers on “the

importance of the issue to the federal system as a whole.” Gunn, 568 U.S. at 260.

A substantial issue “requires an interpretation of a federal statute,” “challenges a

federal statute’s constitutionality,” or “identif[ies] a legal issue necessarily raised

by the claim that, if decided, will be controlling in numerous other cases.” City of

Oakland, 969 F.3d at 906 (internal quotation marks and citation omitted). Here,

the district court found that resolution of this case “directly impacts” both Tri-

Dam’s duty under its FERC license “to protect and enhance the scenic,

recreational, and environmental values of the Project,” as well as “FERC’s

obligation under the FPA to assure that projects are developed to serve various

public needs.” Tri-Dam’s action implicates a substantial federal issue because,

“[a]s evidenced by the FPA, the federal government has a strong interest ‘in

5 maintaining control over [the] engineering, economic and financial soundness’ of

FERC-licensed projects,” such as the Tulloch Reservoir. Sauk-Suiattle, 56 F.4th at

1185 (quoting First Iowa Hydro-Elec. Co-op. v. Fed. Power Comm’n, 328 U.S.

152, 172 (1946)).

Fourth, because a federal issue is implicated here under the FPA, Tri-Dam’s

action satisfies Gunn’s final requirement, which “is concerned with the appropriate

balance of federal and state judicial responsibilities.” Gunn, 568 U.S. at 264

(internal quotation marks and citation omitted); see Sauk-Suiattle, 56 F.4th at 1185

(holding that Gunn’s fourth requirement was met because “Congress intended the

federal government to have comprehensive control over FERC-licensed projects”).

Because we conclude that the court had jurisdiction under sections 1331 and

1337, we need not address Tri-Dam’s arguments that the court also had jurisdiction

under 16 U.S.C. § 825p and 28 U.S.C. § 1367.

II

Frazier concedes that he never raised his “illegal delegation” argument in the

district court and has thus waived this argument on appeal. See Janes v. Wal-Mart

Stores Inc., 279 F.3d 883, 888 & n.4 (9th Cir. 2002).

III

6 The district court correctly concluded that the Code applies retroactively.

Under California law, a statute does not operate retroactively unless the legislative

body enacting the measure clearly indicates its intent that it does so. See W. Sec.

Bank v. Superior Ct., 933 P.2d 507, 513 (Cal. 1997). The general presumption

against retroactive application of statutes is subordinate to “the transcendent canon

of statutory construction that the design of the Legislature be given effect.” In re

Marriage of Bouquet, 546 P.2d 1371, 1373 (Cal. 1976).

By its plain language, the Code exempts all facilities installed prior to 1979,

unless they are subsequently expanded, reconstructed, or otherwise altered. See

Calaveras Cnty., Cal. Mun. Code § 20.10.120(D). The 1979 cut-off date clearly

indicates the Calaveras County Board of Supervisors’ intent that the Ordinance

apply to all facilities installed after that year. This reading also gives effect to the

Code’s stated purpose, which “is to provide consistent policies for the regulation,

operation and enforcement activities at Tulloch Reservoir.” Id. § 20.10.110.

Retroactive application advances this purpose because it brings more facilities

within the ambit of Tri-Dam’s permitting process and authority, which are

designed to “[p]rotect and enhance the scenic, environmental, and public

recreational value of the reservoir.”

IV

7 The district court correctly held that Frazier’s laches defense fails. First, the

district court properly rejected Frazier’s laches defense as to Tri-Dam’s public-

nuisance claim because it is categorically barred under California Civil Code

section 3490. Under California law, “[n]o lapse of time can legalize a public

nuisance, amounting to an actual obstruction of public right.” Cal. Civ. Code

§ 3490 (West 2023).

Tri-Dam, which is a public agency, see Cal. Gov’t Code § 6500 (West

2023), has established that Frazier’s facilities obstruct the public use and

enjoyment of the Tulloch Reservoir and pose a threat to public safety. Frazier

contends that “potential” hazards do not constitute an “actual obstruction.” But

under § 3490, an obstruction is “something that impedes or hinders” a public right,

and an obstruction—such as Frazier’s facilities, which extend into the project

boundary—can exist even before someone is physically harmed. People v.

ConAgra Grocery Prods. Co., 227 Cal. Rptr. 3d 499, 571 (2017). Accordingly,

laches is inapplicable to Tri-Dam’s public-nuisance claim.

Second, the district court correctly held that there exists a genuine dispute of

material fact regarding the application of laches to Tri-Dam’s other state-law

claims. “Laches is an equitable, affirmative defense which requires a showing of

both an unreasonable delay by the plaintiff in bringing suit, plus either

8 acquiescence in the act about which plaintiff complains or prejudice to the

defendant resulting from the delay.” Highland Springs Conf. & Training Ctr. v.

City of Banning, 199 Cal. Rptr. 3d 226, 237 (2016) (citations and internal quotation

marks omitted).

Frazier did not prove the second element. Although Frazier asserted that

Tri-Dam knew he was going to buy the property in 2011 and that he was

“depending on” the contested facilities as amenities, Tri-Dam expressly denied

such knowledge. Tri-Dam offered sworn declarations from two representatives,

who testified that they were not advised Frazier was purchasing the property and

that they “never” would have told him that the facilities were “grandfathered” in or

otherwise exempt from Tri-Dam’s permitting requirements. On appeal, Frazier

does not dispute that the parties submitted directly conflicting evidence on this

defense—thereby rendering it a genuine dispute that is unsuitable for summary

judgment. See Highland Springs, 199 Cal. Rptr. 3d at 237.

AFFIRMED.