Seaplane Adventures, LLC v. County of Marin ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAPLANE ADVENTURES, LLC, Nos. 21-17105
Plaintiff-Appellant/ 22-15027
Cross-Appellee,
D.C. No.
v. 3:20-cv-06222-
WHA
COUNTY OF MARIN,
Defendant-Appellee/
Cross-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted March 27, 2023
San Francisco, California
Filed June 26, 2023
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Gould;
Concurrence by Judge Ikuta
*
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
2 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
SUMMARY**
Civil Rights/Equal Protection
The panel affirmed the district court’s summary
judgment in favor of the County of Marin, vacated as moot
the district court’s preemption order, and remanded, in an
action brought pursuant to 42 U.S.C. § 1983 by Seaplane
Adventures, an air carrier operating in Marin County,
alleging an equal protection claim related to the County’s
COVID-19 enforcement actions against Seaplane.
Seaplane provides air tours, charter flights, and flight
instruction. Following communications with the County
regarding its failure to comply with the County’s modified
COVID-19 health order related to its commercial sight-
seeing flights, Seaplane ceased operations that were in
violation of the health order and filed suit. Seaplane raised
an equal protection “class of one” claim, alleging that the
County intentionally treated Seaplane differently from other
similarly situated groups.
The panel held that regardless of what the relevant
comparison category was for comparing whether the
County’s actions were rooted in a rational basis, given that a
deadly virus was tearing into the most vulnerable throughout
the County, country, and world, the actions of the County
met the rational basis standard as it took actions to mitigate
the damage of the COVID-19 virus. To the extent that the
relevant distinction defining the scope of the class was
recreational and non-recreational flights, the rational basis
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 3
was abundantly clear: to lower transmission of COVID-19
by restricting activities not defined as essential. To the
extent that Seaplane was alleging differential treatment
between Seaplane and other air carriers providing
recreational flights in violation of the health order, the
rational basis for the County’s action was also abundantly
clear: it simply did not know of the other violators.
Addressing the County’s cross-appeal of the district
court’s grant of limited declaratory relief based on a finding
that federal law preempted parts of the County’s health order
related to aviation, the panel, noting that both parties agreed
that the modified health orders were no longer in effect,
vacated the district court’s order as moot.
Concurring in the judgment, Judge Ikuta stated that
because the panel could affirm the district court’s grant of
summary judgment in favor of the County on the simple
ground that there was no evidence that the County knew of
any similarly situated violators, it was not necessary to
decide whether the County’s health orders were rational, an
issue irrelevant to Seaplane’s equal protection claim.
COUNSEL
John E. Sharp (argued) and Gillian M. Edmonds, Law
Offices of John E. Sharp, San Rafael, California, for
Plaintiff-Appellant.
Jacy C. Dardine (argued) and Brandon W. Halter, Deputy
County Counsels; Brian E. Washington, County Counsel;
Office of the County Counsel, County of Marin; San Rafael,
California; for Defendant-Appellee.
4 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
OPINION
GOULD, Circuit Judge:
In March 2020, the United States confronted a threat
unlike any in recent times: the COVID-19 pandemic. As of
the filing of this opinion, the Centers for Disease Control and
Prevention has reported over 1.1 million deaths from the
virus in the United States alone,1 while millions of others
suffered from the direct and indirect effects of the virus.
Although they varied in their responses, different levels of
government operated in distinct, yet interlocked fashion to
address this drastic challenge facing our nation and world.
Although the worst of the pandemic has receded behind us,
our role as judges is to ensure that the Constitution and
applicable state and local laws are properly followed,
cognizant of our position not as public health officials
operating in the midst of a dangerous health emergency, but
rather as a generalist court bound to ensure the proper
deference is given to local governmental officials. See S.
Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613,
1613–14 (2020) (Roberts, C.J., concurring) (explaining the
latitude properly given to “politically accountable officials
of the States” during a dynamic and uncertain time).
The County of Marin (“the County”), at the onset of the
pandemic in March 2020, took action to limit the spread of
COVID-19 and protect its vulnerable citizens by issuing a
public health order that placed certain restrictions on
1
See Covid Data Tracker, Centers for Disease Control and Prevention,
https://covid.cdc.gov/covid-data-tracker/ (visited on May 26, 2023). See
also Weekly Review, Signing Off, Centers for Disease Control and
Prevention (May 12, 2023), https://perma.cc/YC53-94FY (displaying
the total deaths as of May 12, 2023).
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 5
allowable activities. The County continually modified its
original health order based on data and increased knowledge
of how the virus spreads. During the time that a modified
version of the health order was in effect, the County learned
of aviation activities by Seaplane Adventures, LLC
(“Seaplane”) that violated the applicable health order and
began a dialogue with Seaplane regarding its failure to
comply with the County’s health order. Seaplane ultimately
ceased its operations that were in violation of the County’s
health order and filed the suit before us today.
Seaplane appeals the district court’s grant of summary
judgment in favor of the County, in which the district court
rejected Seaplane’s equal protection claim under 42 U.S.C.
§ 1983 related to the County’s enforcement actions against
Seaplane. The County cross-appeals the district court’s
grant of limited declaratory relief based on a finding that
federal law preempts parts of the County’s health orders
related to aviation. We affirm the district court’s grant of
summary judgment to the County and vacate as moot the
district court’s preemption order that granted limited
declaratory relief.
I. Background
A. The County’s Efforts to Combat COVID-19
On March 16, 2020, the County of Marin issued an order
“directing all individuals living in the county to shelter at
their place of residence” with the express aim of “slow[ing]
the spread of COVID-19 to the maximum extent possible”
while simultaneously “enabling essential services to
continue.” The order directed “all businesses and
governmental agencies to cease non-essential operations at
physical locations in the county” and provided a list of
“essential” activities that fell into exceptions to the general
6 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
rule. The order, promulgated under relevant sections of the
California Health and Safety Code, was based on:
evidence of increasing occurrence of
COVID-19 within the County and throughout
the Bay Area, scientific evidence and best
practices regarding the most effective
approaches to slow the transmission of
communicable diseases generally and
COVID-19 specifically, and evidence that
the age, condition, and health of a significant
portion of the population of the County
places it at risk for serious health
complications, including death, from
COVID-19.
The County’s March 16 order was signed by Dr. Matt Willis,
the Health Officer of the County of Marin.
The County did not operate in a vacuum. In California,
the Governor had declared a state of emergency on March 4,
2020,2 see Cal. Exec. Order N-33-20 (March 19, 2020)
(referencing the March 4th declaration of a state of
emergency); while on March 13, 2020, the President of the
United States had proclaimed a national emergency related
to COVID-19. Proclamation No. 9994, 85 Fed. Reg. 15337(Mar. 13, 2020). Both actions occurred prior to the County’s
issuance of its March 16, 2020 health order. The California
state of emergency is explicitly referenced and incorporated
by the County’s original order, along with companion
declarations of a local health emergency by the County’s
2
A copy of the press release released concurrently with the state of
emergency is located at https://perma.cc/699N-AYCK.
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 7
Board of Supervisors, the health officer, and the assistant
director of emergency services. On March 19, 2020, three
days after the initial issuance of the County’s March 16
order, the Governor also issued Executive Order N-33-20
ordering California residents to “stay home or at their place
of residence except as needed to maintain continuity of
operations of the federal critical infrastructure sectors. . . .”
Cal. Exec. Order N-33-20 (March 19, 2020).
Under both the original version of the County’s order, as
well as a modified version of the order issued May 15, 2020
(“Modified Order”) that is at the center of this appeal,
“Essential Businesses” that were allowed to continue
operating included “Airlines. . . providing transportation
services necessary for Essential Activities and other
purposes expressly authorized in this Order.” The Modified
Order superseded the original order and included expansions
of activities that were exempt from the Modified Order. For
example, the definition of “Essential Activities” expanded to
include more kinds of “outdoor recreation activity” and by
allowing work to be performed for an outdoor business or
additional specified businesses, in addition to essential
businesses. The Modified Order cited the “progress
achieved in slowing the spread of COVID-19 in the County
of Marin . . . and neighboring counties” to explain its
expansion of permitted activities. As attested to by Dr.
Willis, the Health Officer of the County, this policy of
phased reopening was based off community transmission
rates, the capacity of the local health system, the success of
COVID-19 testing and tracing, and so on. This Modified
Order led to the enforcement against Seaplane at the center
of this appeal.
8 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
B. Enforcement Against Seaplane Adventures, LLC
Seaplane Adventures, LLC is an air carrier operating in
Marin County, California under applicable regulations
promulgated by the Federal Aviation Administration
(“FAA”). Seaplane provides air tours, charter flights, and
flight instruction. Under operations specifications issued to
Seaplane under 14 C.F.R. Part 135, Seaplane is allowed to
operate “on-demand operations in common carriage”
pursuant to applicable FAA regulations, while under 14
C.F.R. Part 91 certification, Seaplane is allowed to operate
passenger flights that took off and landed at the same airport
while staying within a 25-mile radius from the takeoff
location.
Seaplane at first closed down in early March 2020 at the
very beginning of the pandemic, and according to the owner
and president of Seaplane, subsequently reopened on or
about June 5, 2020 in response to the Modified Order issued
on May 15, 2020. On June 11, 2020, Sergeant Brenton
Schneider from the Marin County Sheriff’s Office, having
“received a multitude of complaints regarding [Seaplane’s]
business still being open,” sent an email to Seaplane
informing the company that it needed “to cease any
operations related to commercial sight-seeing flights” as
Seaplane’s operations violated the County’s Modified
Order. During communications with Seaplane, Schneider
acknowledged that some flights were allowed under the
order, such as “for limited, authorized travel purposes (i.e.
not sightseeing or leisure travel to Lake Tahoe),” but
reiterated the County’s position that “[Seaplane’s]
operations are a clear violation of the current order.”
Seaplane apparently did not stop operations, as on June 28,
2020, a County staff member received an email complaining
of the continued operations of Seaplane and another flight
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 9
company, San Francisco Helicopters, in apparent violation
of the Modified Order.
According to deposition testimony taken during the
course of litigation, on July 3, 2020, the owner and president
of Seaplane received a visit from a deputy from the Sheriff’s
Office. According to the owner, “under threat of extreme
economic penalty and further threat that if [Seaplane’s
operations] continued, [the owner] would be arrested,
[Seaplane decided to] shut down.” The deputy who had
visited Seaplane testified that he had not shut Seaplane down
entirely, but rather communicated that the “tour flight
operations were not permitted under the health orders,” and
as the County stated in a letter to John Sharp, Seaplane’s
counsel, nothing would have prevented Seaplane from
operating certain non-recreational flights, a position that
Seaplane does not dispute.
C. Judicial Proceedings
Seaplane filed its complaint on September 2, 2020, about
two months after Seaplane was allegedly “shut down.” Out
of the six claims asserted by Seaplane, the district court
dismissed all claims except for (1) the equal protection class
of one claim brought under 42 U.S.C. § 1983 and (2)
Seaplane’s claim that the Airline Deregulation Act of 1978
preempts the County’s health orders on charter flights to
other locations. Although the district court asked the FAA,
who is not a party to this suit, for its views on the preemption
issue, the agency declined to submit a brief, citing its belief
that the issue was moot because of the recession of the
relevant health orders.
The district court issued two orders resulting from the
County’s motion for summary judgment. The first order
granted summary judgment to the County on Seaplane’s
10 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
equal protection claim and related 42 U.S.C. § 1983 claim.
The second order granted limited declaratory relief to
Seaplane related to the preemption issue. Seaplane timely
appealed the district court’s grant of summary judgement,
while the County timely cross-appealed the grant of limited
declaratory relief related to the preemption issue.
II. Standards of Review
We review the district court’s decision to grant summary
judgement de novo. Bowerman v. Field Asset Servs., Inc., 60
F.4th 459, 468 (9th Cir. 2023). “Where the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial’” and
summary judgment is warranted. Opara v. Yellen, 57 F.4th
709, 721 (9th Cir. 2023) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“We review evidentiary rulings for abuse of discretion,
even when the rulings determine the outcome of a motion for
summary judgment.” Clare v. Clare, 982 F.3d 1199, 1201
(9th Cir. 2020) (citation and internal quotation marks
omitted).
III. Discussion of Seaplane’s Direct Appeal
On its direct appeal, Seaplane contends: (1) there were
triable issues of material fact that precluded a grant of
summary judgment in favor of the County on its equal
protection and related Section 1983 claims; and (2) the
district court abused its discretion in its consideration of the
testimony of Dr. Willis. We affirm the district court’s grant
of summary judgment.
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 11
A. Equal Protection “Class of One”
Seaplane raises an equal protection “class of one” claim,
alleging that the County intentionally treated Seaplane
differently from other similarly situated groups. To succeed
on a “class of one” equal protection claim, Seaplane must
demonstrate the County “(1) intentionally (2) treated
[Seaplane] differently than other similarly situated
[individuals or groups], (3) without a rational basis.”
Gerhart v. Lake Cnty., 637 F.3d 1013, 1022 (9th Cir. 2011).
Seaplane must show that a rational trier of fact could find for
Seaplane on all three prongs of the “class of one” claim to
preclude a grant of summary judgment, but because the
County’s actions have a rational basis, we affirm the district
court’s grant of summary judgment in favor of the County
and hold that it is not necessary to analyze the other prongs.
1. Rational Basis
Seaplane and the County dispute what the appropriate
comparison category is for comparing whether the County’s
actions were rooted in a rational basis. It is salient for our
analysis that health officials traditionally have broad
discretion, through legislation and upon review by courts, to
take actions to stem the transmission of a contagious disease.
See generally Cal. Health & Safety §§ 101040, 101085,
120175 (the sections under which the Modified Order was
issued); Jacobson v. Commonwealth of Massachusetts, 197
U.S. 11 (1905) (holding that the state retained inherent
police powers to protect the health of their citizens).
Regardless of the relevant comparison category, we hold the
County’s actions meet the deferential rational basis test.
We have stated that “the rational basis prong of a ‘class
of one’ claim turns on whether there is a rational basis for
the distinction, rather than the underlying government
12 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
action.” Gerhart, 637 F.3d at 1023. This prong is deferential
to the government; a classification comports with the Equal
Protection Clause if it is “rationally related to a legitimate
state interest.” City of New Orleans v. Dukes, 427 U.S. 297,
303 (1976) (per curiam). As the Supreme Court has stated
when reviewing a law regulating businesses under the
rational basis test, “the law need not be in every respect
logically consistent with its aims to be constitutional. It is
enough that there is an evil at hand for correction, and that it
might be thought that the particular legislative measure was
a rational way to correct it.” Williamson v. Lee Optical of
Oklahoma Inc., 348 U.S. 483, 487–88 (1955). Here, the evil
is clear: a deadly virus that was tearing into the most
vulnerable throughout the County, country, and world. We
hold that the actions of the County meet the rational basis
standard as it took actions to mitigate the damage of the
COVID-19 virus.
When it comes to health and safety measures, the
judiciary has long recognized that the “safety and health of
[a constituency] are, in the first instance for [a state] to guard
and protect,” Jacobson, 197 U.S. at 38, and that a “state may
invest local bodies called into existence for purposes of local
administration with authority in some appropriate way to
safeguard the public health and the public safety.” Id. at 25.
When actions are undertaken during a time of great
uncertainty with a novel disease, “medical uncertainties
afford little basis for judicial responses in absolute terms”
and that legislative authority “must be especially broad” in
“areas fraught with medical and scientific uncertainties.”
Marshall v. United States, 414 U.S. 417, 427 (1974). With
the benefit of hindsight and knowledge of facts discovered
by scientists, doctors, and health officials after the crisis had
subsided, we recognize that perhaps state and local
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 13
governments could have acted differently, but health
officials do not need to act perfectly to establish a rational
basis. The passage of time and the resulting receding of a
crisis does not make us, as courts, competent to second guess
what the best avenue of action was for a state or local
government when the crisis was raging, especially in light of
the long-established standard for rational basis review. For
the purposes of judicial review, the County’s modifications
to its health order, such as in the changes made between the
original March 16 order and the May 15 Modified Order that
permitted additional activities, and its stated rationale based
on then-existing knowledge of how the novel virus spread
and datapoints such as community transmission rates,
evidence a rational decision-making process that satisfies
rational-basis review.
Seaplane argues that the County did not offer any
concrete facts showing the basis for prohibiting recreational
aviation. However, Seaplane’s general assertions are not
enough when available evidence in the record shows that the
County did have ample bases for making the distinction. Dr.
Willis, the County’s health officer, stated in his declaration
that the County’s COVID-19 response was based on then-
existing knowledge of COVID-19’s communicability and
guidance from the Centers for Disease Control and
Prevention. To the extent that the relevant distinction
defining the scope of the class is recreational and non-
recreational flights, the rational basis is abundantly clear: to
lower transmission of COVID-19 by restricting activities not
defined as essential. As the Supreme Court stated in other
COVID-19 cases, “Stemming the spread of COVID-19 is
unquestionably a compelling state interest,” Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020), and
unlike in those cases, where free exercise claims were
14 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
involved that necessitated strict scrutiny analysis, the
County’s regulation of Seaplane’s business activities falls
under rational basis review.
To the extent that Seaplane is alleging differential
treatment between Seaplane and other air carriers providing
recreational flights in violation of the health order, the
rational basis for the County’s action is also abundantly
clear: it simply did not know of the other violators.
Seaplane’s citations to its own allegations that the County
must have known or should have known that other
individuals were violating its health order is not sufficient to
constitute an equal protection class of one claim, especially
when considering the County’s reasonable and rational
explanation. See Madden v. Commonwealth of Kentucky,
309 U.S. 83, 88 (1940) (“The burden is on the one attacking
the legislative arrangement to negative every conceivable
basis which might support it.”). Seaplane contends that the
County had the resources to monitor other airlines; even if
we set aside the County’s explanation that it operated on a
complaint system (a rational way for any governmental
entity to act with limited resources during a time of great
uncertainty), Seaplane’s argument amounts to a complaint
that the County did not allocate the resources in the way
Seaplane thought it should have done. Recognizing our role
as a court, not a legislature, we do not have the expertise nor
judicial mandate to wade into the distribution of local
resources, especially when it comes to monitoring and
enforcement, absent some need to apply heightened scrutiny
or other extraordinary circumstances that are not present
here. Rational basis review does not require the County to
behave optimally, but only rationally.
As we have detailed the ample rational bases upon which
the County based its health order and enforcement against
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 15
Seaplane, we have no reason to proceed to the other prongs
of the analysis. We hold that summary judgment for the
County was warranted as a matter of law and affirm the
district court.
B. Seaplane’s Objection to the Testimony of Dr.
Willis
We review the district court’s decision regarding
evidentiary matters for abuse of discretion, see Clare, 982
F.3d at 1201, and affirm the district court. Seaplane contends
that because Dr. Willis, the County’s health officer, was not
designated as the person most knowledgeable during
discovery proceedings, the district court abused its
discretion by considering his testimony regardless. Seaplane
does not specify why it was unable to depose Dr. Willis other
than citing to general financial reasons and its erroneous
understanding of a privilege log. The record indicates that
they knew of Dr. Willis’s importance, as the challenged
health orders were signed by Dr. Willis and Seaplane
attempted to obtain information related to Dr. Willis during
the course of discovery. The district court was correct in its
assertion that Seaplane could have deposed Dr. Willis if it so
desired, and the district court did not abuse its discretion in
its consideration of Dr. Willis’s testimony.
IV. Discussion of the County’s Cross-Appeal and the
Preemption Order
On its cross-appeal, the County contends the preemption
order should be vacated as moot and alternatively, that the
applicable federal laws do not preempt the County’s health
orders related to aviation. We vacate the preemption order
as moot and remand with instructions to dismiss the motion
for declaratory relief for lack of jurisdiction.
16 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
Our judicial power under Article III requires that there
be a live case or controversy, and a suit “becomes moot,
when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.” Chafin v.
Chafin, 568 U.S. 165, 172 (2013) (quoting Already, LLC v.
Nike, Inc., 568 U.S. 85, 90 (2013)) (cleaned up). Both
parties agree that the modified health orders are no longer in
effect. We have previously recognized two exceptions to the
mootness doctrine that would allow us to retain jurisdiction
over the preemption order: the voluntary cessation exception
and the capable of repetition yet evading review exception.
See, e.g., Brach v. Newsom, 38 F.4th 6, 12 (9th Cir. 2022)
(en banc). We hold that neither exception applies and that
the district court’s preemption order must be vacated.
First, the voluntary cessation exception does not apply.
As the Supreme Court has emphasized, “a defendant cannot
automatically moot a case simply by ending its unlawful
conduct once sued.” Already, 568 U.S. at 91. However, as
we have noted in Brach, involving COVID-19 orders that
were allowed to expire, this exception does not apply where
the defendant has met its burden to show that the “challenged
behavior cannot reasonably be expected to recur.” 38 F.4th
at 12 (quoting Already, 568 U.S. at 96). The County allowed
recreational flights to be readded to its list of permissive
business operations in August 2020, and as of the issuance
of this opinion, both the national and California state of
emergencies resulting from the pandemic have been allowed
to expire and the Modified Order is no longer in effect. We
have recognized that the government’s actions in ending a
challenged policy are granted a presumption of good faith,
Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014), and
with the end of California’s state of emergency upon which
the health orders were partially based, there is no indication
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 17
that the County can or will reimpose restrictions similar to
those in effect at the very beginning of the pandemic. As
there is no reasonable expectation that the County will
reissue an order that would prohibit Seaplane from operating
its recreational flights, the voluntary cessation exception
does not apply.
Second, the capable of repetition yet evading review
exception is also not applicable. This exception arises where
“(1) the duration of the challenged action is too short to allow
full litigation before it ceases, and (2) there is a reasonable
expectation that the plaintiffs will be subjected to it again.”
Brach, 38 F.4th at 15 (citation omitted). Even if we assume
without deciding that the first prong is met, Seaplane cannot
prove that the challenged health orders will be applied to it
again beyond “a mere physical or theoretical possibility.”
Murphy v. Hunt, 455 U.S. 478, 482 (1982). That is not
enough to trigger the exception.
The controversy that led to the grant of limited
declaratory relief is moot, so we vacate the preemption order
and remand with instructions to dismiss Seaplane’s request
for declaratory relief.
V. Conclusion
We affirm the district court’s grant of summary
judgment to the County on Seaplane’s equal protection and
related Section 1983 claim. We also vacate the preemption
order and remand with instructions to dismiss Seaplane’s
request for declaratory relief as moot.
AFFIRMED in part, VACATED and
REMANDED in part with instructions to dismiss.
18 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
IKUTA, Circuit Judge, concurring in judgment:
Seaplane Adventures, LLC (Seaplane) claims the
County of Marin (the County) ordered it to shut down for
violating county health orders while allowing other similarly
situated air carriers to continue to operate. Therefore,
Seaplane claims that its equal protection rights were
violated. Because we can affirm the district court’s grant of
summary judgment in favor of the County on the simple
ground that there is no evidence that the County knew of any
similarly situated violators, it is not necessary to decide
whether the County’s health orders were rational, an issue
irrelevant to Seaplane’s equal protection claim.
The facts are simple. Beginning in March 2020, the
County issued a series of health orders aimed at “slow[ing]
the spread of COVID-19.” The initial order required many
businesses to close, but allowed essential businesses,
including transportation services, to remain open subject to
certain restrictions. Air carriers were deemed to be essential
businesses to the extent they provided transportation
services necessary for specified essential activities. In
compliance with the initial health order, Seaplane, which
operates an air travel business, including seaplane tours and
charter flights, ceased operations in mid-March 2020.
In May 2020, the County modified its order to allow
some businesses to reopen based on multiple factors,
including how “essential the industry at issue was to the
health and welfare of the community in general” and the risk
of transmitting COVID-19 associated with particular
activities. Based on its interpretation of the amended health
order, Seaplane resumed its operations in early June 2020.
After Seaplane’s reopening, the County received reports that
Seaplane was operating recreational flights in violation of
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 19
the health orders, and ordered Seaplane to “cease any
operations related to commercial sight-seeing flights.”1 In
response, Seaplane brought suit against the County, arguing
that the County had not ordered similarly situated air carriers
flying out of Gnoss Field, an airport owned by the County,
to stop operating, which violated Seaplane’s equal protection
rights.
To succeed on its “class of one” equal protection claim,
Seaplane must demonstrate that the County: (1) intentionally
(2) treated Seaplane differently than other similarly situated
businesses, (3) without a rational basis. See Gerhart v. Lake
Cnty., 637 F.3d 1013, 1022 (9th Cir. 2011). Seaplane cannot
carry this burden because even when viewing the evidence
in the light most favorable to Seaplane, it has failed to create
a genuine issue of material fact that the County knew that
other air carriers were operating flights unconnected to
essential activities out of Gnoss Field.
Seaplane primarily relies on two pieces of evidence.
First, Seaplane argues that because the County owned the
airport at Gnoss Field, it would have necessarily known that
other air carriers were conducting recreational flights. This
argument fails. County officials interpreted the health orders
to allow certain types of “essential” flights, but not
recreational flights such as commercial sight-seeing flights.
Therefore, in order to know whether a specific air carrier was
violating the health orders, the County would need to know
the purpose of the flights conducted by that air carrier. But
there is no evidence that the County knew the purpose of the
1
The County also received complaints that Skydive Golden Gate and SF
Helicopters were violating the health orders, and treated them the same
as Seaplane.
20 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
other air carriers’ flights. The manager of Gnoss Field stated
in his declaration that he “never received any report, nor did
[he] ever otherwise learn, that any business or individual
operating at the Airport was acting in violation of any of the
terms of the health orders issued by County.” There is no
evidence to the contrary.
Second, Seaplane points to the declaration of Patrick
Scanlon, the owner of Scanlon Aviation, a commercial air
carrier using Gnoss Field.2 According to Scanlon’s
declaration:
Scanlon Aviation operated/operates for all
purposes it was/is permitted to under [federal
regulations]. This includes, but is not limited
to, booking and flying charter flights
throughout the state and flight instruction for
recreational purposes or otherwise. Scanlon
Aviation did not limit these flights to any
particular category or group of passengers
and/or activity; and did not limit these flights
to ‘essential workers, or ‘essential activities,
as those terms are defined under the Health
Orders.
The declaration then states that “[t]he County was aware
that Scanlon [Aviation] was operating during the time the
2
Seaplane also relies on a declaration from Andrew Wait, a lessee of a
hangar at Gnoss Field, stating that “[t]o [his] knowledge, the County was
aware that the Gnoss-Field airlines were continuing operations out of
Gnoss Field, despite the Health Orders as the County owns Gnoss Field.”
Because Wait’s declaration does not indicate that the County knew the
purpose of these flights, the declaration does not create a genuine issue
of material fact regarding the County’s intent.
SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN 21
Health Orders were in effect” because Scanlon “sent the
County a copy of Scanlon Aviation’s COVID-19 Mitigation
Plan (‘Site Specific Protection Plan’ or ‘SPP’) via email on
May 4, 2020.”
Taking these statements in the light most favorable to
Seaplane, they raise the inference that Scanlon Aviation flew
recreational flights at a time when the County prohibited
such flights. Even so, these statements do not raise an
inference that the County knew that Scanlon Aviation was
doing so, because the declaration indicates only that the
County knew that Scanlon Aviation was providing flights of
some kind. Likewise, Scanlon Aviation’s Site Specific
Protection Plan does not help Seaplane because nothing in
the plan discusses commercial sight-seeing operations or
otherwise raises the inference that the County knew that
Scanlon Aviation was not following its health orders.
In the absence of any evidence that the County knew that
other similarly situated air carriers were violating the health
orders and failed to stop them, Seaplane cannot raise any
genuine dispute that the County intentionally treated other
violators differently without a rational basis. Therefore,
Seaplane’s equal protection claim fails. See Gerhart, 637
F.3d at 1022. We need not go any further.
Because we can readily decide this case on this ground,
there is no need to address whether any differential treatment
that Seaplane experienced would have been rational. And
there is no need to address whether the County’s health
orders themselves were rational, because this issue is not
relevant to Seaplane’s “class of one” equal protection claim.
Finally, there is no reason for the majority to address the
degree of deference we owe to a local government’s issuance
22 SEAPLANE ADVENTURES, LLC V. COUNTY OF MARIN
of health orders because that question is not before us.
Accordingly, I concur only in the judgment.