Glenbrook Preservation v. Tahoe Regional Planning Agency

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENBROOK HOMEOWNERS 
ASSOCIATION; CLAUDIA HUNTINGTON;
HUNTINGTON GLENBROOK TRUST,
Plaintiffs,
and
GLENBROOK PRESERVATION No. 03-17224
ASSOCIATION, D.C. Nos.
Plaintiff-Appellant, CV-00-00690-
v. RLH/RAM
TAHOE REGIONAL PLANNING  CV-01-00678-
RLH/RAM
AGENCY, CV-02-00075-
Defendant-Appellee, RLH/RAM
LAWRENCE W. RUVO LIVING TRUST
1989; HARVEY WHITTEMORE;
POSTMISTRESS PROPERTIES, LLC;
LAKESHORE HOUSE, LLC;
OUTRAGEOUS INVESTMENTS, LLC;
EDWARD FEIN,
Defendants-Intervenors-Appellees.

13553
13554 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
GLENBROOK HOMEOWNERS 
ASSOCIATION; GLENBROOK
PRESERVATION ASSOCIATION,
Plaintiffs-Appellants,
and
CLAUDIA HUNTINGTON; HUNTINGTON
GLENBROOK TRUST; CLAIRE
HUNTINGTON MCCLOUD, No. 03-15002
Plaintiffs, D.C. Nos.
v. CV-00-00690-
RLH/RAM
TAHOE REGIONAL PLANNING
AGENCY,
 CV-01-00678-
RLH/RAM
Defendant, CV-02-00075-
and RLH/RAM
LAWRENCE W. RUVO LIVING TRUST
1989; HARVEY WHITTEMORE;
POSTMISTRESS PROPERTIES, LLC;
LAKESHORE HOUSE, LLC;
OUTRAGEOUS INVESTMENTS, LLC,
Defendants-Intervenors-Appellees.
EDWARD FEIN,
Defendant-Intervenor-Appellant.

GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13555
GLENBROOK HOMEOWNERS 
ASSOCIATION; GLENBROOK
PRESERVATION ASSOCIATION,
Plaintiffs-Appellees,
and
CLAUDIA HUNTINGTON; HUNTINGTON
GLENBROOK TRUST, No. 04-17314
Plaintiffs,
D.C. Nos.
v. CV-00-00690-
TAHOE REGIONAL PLANNING RLH/RAM
AGENCY,  CV-01-00678-
Defendant, RLH/RAM
CV-02-00075-
EDWARD FEIN, RLH/RAM
Defendant-Intervenor,
and
LAWRENCE W. RUVO LIVING TRUST
1989; HARVEY WHITTEMORE;
POSTMISTRESS PROPERTIES, LLC;
LAKESHORE HOUSE, LLC;
OUTRAGEOUS INVESTMENTS, LLC,
Defendants-Intervenors-Appellants.

13556 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
GLENBROOK HOMEOWNERS 
ASSOCIATION,
Plaintiff-Appellant,
and
GLENBROOK PRESERVATION
ASSOCIATION; CLAUDIA HUNTINGTON; No. 03-17302
HUNTINGTON GLENBROOK TRUST, D.C. Nos.
Plaintiffs, CV-00-00690-
v. RLH/RAM
TAHOE REGIONAL PLANNING  CV-01-00678-
RLH/RAM
AGENCY, CV-02-00075-
Defendant-Appellee, RLH/RAM
LAWRENCE W. RUVO LIVING TRUST
1989; HARVEY WHITTEMORE;
POSTMISTRESS PROPERTIES, LLC;
LAKESHORE HOUSE, LLC;
OUTRAGEOUS INVESTMENTS, LLC;
EDWARD FEIN,
Defendants-Intervenors-Appellees.

GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13557
GLENBROOK HOMEOWNERS 
ASSOCIATION; GLENBROOK
PRESERVATION ASSOCIATION;
Plaintiffs,
and
CLAUDIA HUNTINGTON; HUNTINGTON
GLENBROOK TRUST; CLAIRE No. 03-15001
HUNTINGTON MCCLOUD, D.C. Nos.
Plaintiffs-Appellants, CV-00-00690-
v. RLH/RAM
TAHOE REGIONAL PLANNING  CV-01-00678-
AGENCY, RLH/RAM
Defendant-Appellee, CV-02-00075-
RLH/RAM
and
OPINION
LAWRENCE W. RUVO LIVING TRUST
1989; HARVEY WHITTEMORE;
POSTMISTRESS PROPERTIES, LLC;
LAKESHORE HOUSE, LLC;
OUTRAGEOUS INVESTMENTS, LLC;
EDWARD FEIN,
Defendants-Intervenors.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
June 14, 2005—San Francisco, California
Filed September 21, 2005
13558 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
Before: Mary M. Schroeder, Chief Judge,
William C. Canby, Jr., Circuit Judge, and
Kevin Thomas Duffy,* District Judge.
Opinion by Judge Duffy
*The Honorable Kevin Thomas Duffy, District Judge for the Southern
District of New York, sitting by designation.
GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13561
COUNSEL
Ronald A. Zumbrun, The Zumbrun Law Firm, Sacramento,
California, for plaintiffs-appellants/appellees, Glenbrook
Preservation Association. Mark H. Gunderson, Mark H.
Gunderson, Ltd., Reno, Nevada, for plaintiffs-appellants-
cross-appellees, Glenbrook Homeowners Association.
John L. Marshall, Tahoe Regional Planning Agency, State-
line, Nevada; William J. White and Matthew D. Vespa, Shute,
Mihaly & Weinberger LLP, San Francisco, California, for
defendant-appellee, Tahoe Regional Planning Agency. E. Leif
Reid, Lionel, Sawyer & Collins, Reno, Nevada, for
defendants-intervenors-appellees-cross-appellants, Harvey
Whittemore, Postmistress Properties, LLC, Lakeshore House,
LLC, and Outrageous Investments, LLC.
OPINION
KEVIN THOMAS DUFFY, District Judge:
I. Background
These appeals arise from a dispute over a proposed pier
project in Glenbrook, Nevada, which borders Lake Tahoe.
The Lawrence W. Ruvo Trust (“Ruvo”), Harvey Whittemore
(“Whittemore”), Edward Fein (“Fein”), and others (collec-
tively “Ruvo/Fein”) sought to build a pier on Fein’s property
on the shore of Lake Tahoe. The Glenbrook Preservation
Association (“GPA”), Glenbrook Homeowners’ Association
(“GHOA”), Huntington Glenbrook Trust, Claudia Hunting-
ton, and Claire Huntington (“Huntington Parties”) (collec-
tively “Glenbrook Parties”) opposed the project.
Ruvo/Fein sought approval of the pier from the Tahoe
Regional Planning Agency (“TRPA”), a bi-state agency
13562 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
charged with preservation of the Lake Tahoe region under the
Tahoe Regional Compact (“Compact”). After public hearings,
the TRPA approved the pier project subject to certain condi-
tions, including conditions allowing construction of the pier
only if an appropriate court determines that: (1) the pier “will
not unreasonably interfere with any recreational/access rights
GHOA holds in the project area” (“Condition N”); and (2) “as
of the date [of the TRPA’s final approval of the project] the
owners of the Fein parcels . . . do not have a legal right to use
the GHOA community pier independent of actions by
GHOA.” (“Condition O”).
Three suits were filed: (1) GPA sued TRPA in the Eastern
District of California, alleging that TRPA was not complying
with the Compact and was unduly influenced by certain indi-
viduals (Ruvo/Fein intervened as Defendants and GHOA
joined as plaintiff/real party in interest); (2) The Huntington
Parties filed a complaint (containing allegations almost identi-
cal to those raised by GPA in the California case) against
TRPA in the District of Nevada; and (3) Ruvo/Fein filed a
complaint against GHOA in Nevada state court, to which
GHOA filed an answer and counterclaim. All three cases were
subsequently consolidated in the District of Nevada.
In April 2002 TRPA and Ruvo/Fein filed motions to dis-
miss which were granted in part and denied in part.
In December 2002 TRPA and Ruvo/Fein filed motions for
summary judgment. GHOA answered and filed a cross-
motion for summary judgment. The district court adopted a
magistrate’s report which disposed of all remaining claims by
granting TRPA’s motion, and granting in part and denying in
part the motions of GHOA and Ruvo/Fein. See Glenbrook
Pres. Ass’n v. Tahoe Reg’l Planning Agency, CV-N-00-690-
RLH (RAM) (D. Nev. Sept. 19, 2003) (district court order
adopting magistrate’s report and recommendation (“Report”),
Glenbrook Pres. Ass’n v. Tahoe Reg’l Planning Agency, CV-
N-00-690-RLH (RAM) (D. Nev. Aug. 5, 2003)). By adopting
GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13563
the Report, the court held that: (1) TRPA’s approval of the
pier was supported by substantial evidence in the administra-
tive record; (2) Condition N was satisfied; and (3) Condition
O was not satisfied because the Fein parcels had a right of
access to the GHOA pier. These holdings are the focus of the
instant appeals.
II. Challenge to TRPA’s Conditional Approval of the Pier
We review a grant of summary judgment de novo. See
Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999)
(en banc). Because summary judgment here involves the deci-
sion of an administrative agency, we “view the case from the
same position as the district court.” Nevada Land Action
Ass’n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.
1993) (citation omitted). We review TRPA’s decisions
regarding project approval only for “prejudicial abuse of dis-
cretion,” which occurs when “the agency has not proceeded
in a manner required by law or if the act or decision of the
[TRPA] was not supported by substantial evidence in light of
the whole record.” (Compact at Article VI(j).)
The Glenbrook Parties apparently challenge TRPA’s
approval of the permit on the ground that the TRPA did not
“proceed in a manner required by law, asserting that relevant
law compelled TRPA to: (1) require an Environmental
Assessment prior to approving the pier project; (2) consider
alleged “Cumulative Impacts” of the Pier; (3) consider alleged
“Cumulative Impacts” of an entertainment complex the Glen-
brook Parties claim the pier owners are building; and (4)
require an Environmental Impact Statement due to alleged
controversy over the pier project (collectively “Four Require-
ments”).
The Glenbrook Parties do not claim that the Four Require-
ments are explicit in either the Compact or the ordinances
promulgated thereunder by the TRPA. Rather, the Glenbrook
Parties’ challenge is entirely dependent on the assertion that
13564 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
certain regulatory requirements allegedly arising under the
National Environmental Policy Act, 42 U.S.C. §§ 4321-4347
(“NEPA”), also arise under the Compact. Because this funda-
mental assumption is wrong, the Glenbrook Parties’ chal-
lenges to TRPA’s action fail.
[1] The NEPA explicitly states that it applies only to agen-
cies of the federal government. 42 U.S.C. § 4332(2). The
Glenbrook Parties nevertheless argue for the importation of
alleged NEPA requirements into the Compact under Article
VII of the Compact. This Article, entitled “Environmental
Impact Statements,” was enacted in the 1980 amendments to
the Compact and its text is substantially similar to the
NEPA’s section regarding Environmental Impact Statements
(“EIS”).1 Compare Compact Article VII with 42 U.S.C.
§ 4332.
[2] The Glenbrook Parties assert that this similar language
triggers the general rule of statutory construction that the
“adoption of the wording of a statute from another legislative
jurisdiction carries with it the previous judicial interpretation
of the wording.” Yates v. United States, 354 U.S. 298, 309
(1957) overruled on other grounds by Burks v. United States,
437 U.S. 1, 2 (1978). In support of this argument, the Glen-
brook Parties presented us with no cases in which a court
imposed the Four Requirements solely on the basis of the lan-
guage of the NEPA. Rather, the authorities relied on by the
Glenbrook Parties are limited to cases interpreting federal
regulations promulgated under the NEPA. The obligations
Glenbrook seeks to impose on TRPA arise not from the lan-
guage of the NEPA, but rather from judicial interpretations of
language that appears neither in the NEPA nor in Article VII
of the Compact. We find the authority offered too far
1
An EIS is a comprehensive document, or set of documents reporting
on the potential environmental impact of a project. An EIS is much more
comprehensive than either an Initial Environmental Checklist or an Envi-
ronmental Assessment.
GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13565
removed for the canon of statutory construction cited by the
Glenbrook Parties to apply. Accordingly, there is no basis for
importing the Four Requirements into the Compact.
III. Declaratory Judgement re: Conditions N and O
The Complaint of Ruvo/Fein and the Counterclaim of
GHOA both sought declaratory judgment as to the rights, sta-
tus and other legal relations with respect to the beach area
where the Ruvo/Fein Pier is proposed to be built. The requests
for declaratory judgment were based on Conditions N and O
in the conditional permit issued by TRPA.
A. Condition N
Condition N requires Ruvo/Fein to “obtain a decision from
an appropriate court that [the Ruvo/Fein Pier] will not unrea-
sonably interfere with any recreational/access rights GHOA
holds in the project area.”
Through a series of deeds recorded in 1977, GHOA and its
members received an easement over, inter alia, the beach
property Fein would later come to own. In the relevant deed,
Fein’s predecessor in interest “covenant[ed] and agree[d] that
[the beach area] shall not be developed for other than recre-
ational uses as defined by Tahoe Regional Planning Agency.”
The deed further granted GHOA’s predecessor in interest the
right to use, inter alia, the beach area “for those permitted
uses designated in Section 7.32 (1) through (6) inclusive, of
Ordinance No. 19 adopted by the Tahoe Regional Planning
Agency . . . [and] in accordance with reasonable rules and
regulations relating to such use.”
On the basis of this express language, the court below
found that although GHOA has a recreational easement upon
the beach, that easement is subject to the limitations set forth
in the deed which “expressly allow for development of recre-
ational uses by owners of the property subject to the easement
13566 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
[i.e., Fein].” (Report at 21.) The court then determined, by ref-
erence to TRPA rules, that the Ruvo/Fein Pier is a “recre-
ational use as defined by the Tahoe Regional Planning
Agency.” (Id. at 23-24.)
We review the interpretation of deeds and contracts de
novo. See In re Emery, 317 F.3d 1064, 1069 (9th Cir. 2003).
[3] On appeal the Glenbrook Parties do not attack the fun-
damental premise that GHOA’s easement is subject to the
property owner’s reserved right to develop the beach area for
recreational uses. Rather, the Glenbrook Parties cite authority
establishing the proposition that the owner of a servient estate
may not erect any structure that encroaches on a right-of-way.
This argument misses the point. Because GHOA’s easement
is limited by the express reservation of the property owner’s
right to develop the property for recreational uses, any such
development cannot infringe on GHOA’s easement. The ease-
ment has been so limited since its creation. As the court below
held:
Even assuming that GHOA has a right-of-way, a
right-of-way is only an easement and “must be con-
strued strictly in accordance with its terms in an
effort to give effect to the intentions of the parties.”
S.O.C., [Inc. v. Mirage Hotel-Casino], 23 P.3d
[243], 247 [(Nev. 2001)]; see also Cox v. Glenbrook
Co., 371 P.2d 647, 652 (the general rule is that “the
extent of an easement created by conveyance is fixed
by the conveyance.”) Given the express language of
the deeds which grant [Fein] the right to develop
[his] property for recreational uses as defined by the
TRPA, GHOA’s argument in this regard must fail.
(Report at 23.)
[4] The Glenbrook Parties alternatively argue that Nevada’s
Planned Unit Development Statute, Nev. Rev. Stat. Ch. 278A,
GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13567
also precludes construction of the Pier. However, as the court
below noted, the plain language of the statute and relevant
cases establish that GHOA may enforce only Planned Unit
Development provisions that are contained in documents
recorded in the county recorder’s registry of real estate titles.
Ruvo/Fein asserts that the only recorded documents that gov-
ern GHOA’s rights to maintain open space easements on
Fein’s beach are the deeds which created the recreational
easement in favor of GHOA. The Glenbrook Parties have not
cited any recorded document contradicting this assertion.
Thus, the Glenbrook Parties’ argument is without merit.
GHOA’s rights to enforce the plan are entirely derivative of
its rights under the easement— because the easement does not
prohibit construction of the Pier, neither does the Planned
Unit Development statute. Accordingly, we affirm the judg-
ment below as to Condition N.
B. Condition O
Condition O requires Ruvo/Fein to “obtain a decision from
an appropriate court that, as of the date of [TRPA’s final
approval of] the permit, the owners of the Fein parcels (APN
01-070-16 and 01-070-17) do not have a legal right to use the
GHOA community pier independent of actions by GHOA.”2
The court below held that “the Fein parcels where the [Ruvo/
Fein] pier is to be located acquired access to the [GHOA]
community pier through a reserved right as Glenbrook Prop-
erties’ successor in interest.” (Report at 28.) Because this
holding was in error, we reverse.
2
The GHOA community pier is a multiple-use pier owned and main-
tained by the GHOA. The GHOA pier is near the location where Ruvo/
Fein proposes their pier. The Fein parcels’ access to the GHOA pier is rel-
evant because, under TRPA rules, Fein may construct the Ruvo/Fein pier
only if it qualifies as a multiple-use pier. The Ruvo/Fein pier may qualify
as a multiple-use pier only if the Fein parcels lack a right of access to an
existing multiple-use pier.
13568 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
The lower court determined that the relevant issue was “not
whether Fein, as an individual has the right to use the
[GHOA] community pier, but whether the parcels [owned by
Fein] where the [Ruvo/Fein] pier is to be located have the
right to use the community pier.” (Id. at 26.) The Glenbrook
Parties appeal this holding, arguing that the court’s inquiry
should have been extended to the other Ruvo/Fein parties.
However, given the text of Condition O (which is explicitly
limited to Fein), and the TRPA Board’s finding that Condi-
tion O “of the Proposed permit require[s] the applicants to
demonstrate . . . the Fein parcels did not acquire access to the
[GHOA] pier,” as well as the TRPA’s Staff Summary which
describes the decision required by Condition O as “a decision
from an appropriate court that at least the Fein parcels do not
have the legal right to access GHOA’s pier,” the Glenbrook
Parties’ argument is without merit.
Thus, the relevant question is whether the Fein parcels have
an appurtenant right to use the GHOA pier. The lower court
held that through two deeds “the Fein parcels where the
[Ruvo/Fein] pier is to be located acquired access to the
[GHOA] community pier through a reserved right as Glen-
brook Properties’ successor in interest.” (Report at 28.)
Because neither of these deeds conveyed a right appurtenant
to the Fein parcels to use the GHOA Pier, we reverse.
i. 1976 Deed
The court below held that in a 1976 deed (“1976 Deed”)
“Glenbrook Company conveyed to Glenbrook Properties,
which included the Fein parcels, the right to use designated
recreational Areas in Glenbrook for recreational purposes.”
(Report at 26.) Ruvo/Fein argues this holding is erroneous
because the 1976 Deed is void and, in any event, the Fein
property was not conveyed in the deed. Ruvo/Fein is correct
on both points.
[5] Under the doctrine of merger, when a single owner “ac-
quires present possessory fee simple title to both the servient
GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13569
and dominant tenements [of an easement], the easement
merges into the fee . . . and is terminated.” Breliant v. Pre-
ferred Equities Corp., 858 P.2d 1258, 1261 (Nev. 1993). The
1976 Deed on which the court below relied created an ease-
ment, in favor of the dominant tenement described in Exhibit
A, upon the servient tenement described in Exhibit C (the rec-
reational areas owned by Glenbrook Company). However, in
a March 1977 Deed, Glenbrook Properties reconveyed
Exhibit A to Glenbrook Company who still owned the prop-
erty in Exhibit C. Through the March 1977 Deed, Glenbrook
Company “acquire[d] present possessory fee simple title to
both the servient and dominant tenements” and the easement
“merge[d] into the fee . . . and [was] terminated.” Id. Thus,
the holding that the easement created a right appurtenant to
Fein’s parcels was erroneous.
Moreover, as is clear from the surveys in the record, the
Fein parcels are not part of Exhibit A dominant tenement, but
rather are part of the servient tenement described in Exhibit
C. Even if the easement in the 1976 Deed had not been extin-
guished by merger, it still would not create any rights appurte-
nant to the Fein parcels to use the GHOA pier.
ii. 1987 GHOA Pier Deed
The GHOA pier was transferred to GHOA by Glenbrook
Properties via a deed executed in 1987. Referring to this
transfer, the court below stated, “[i]t is . . . undisputed that
Glenbrook Properties conveyed the existing [GHOA] pier to
GHOA by deed reserving the right to use the pier as follows:
‘RESERVING, HOWEVER, unto grantors, their successors
and assigns, the right to use said property in common with
others entitled to use the same.’ ” (Report at 26.)
In analyzing the right of use that Glenbrook Properties
retained upon the transfer of the pier to GHOA, the court
noted:
13570 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
The parties mischaracterize the status of the
[GHOA] pier in discussing whether it is subject to an
easement or a license. In the deed, Glenbrook Prop-
erties conveyed the community pier to GHOA and
an easement [over Glenbrook Properties’ real prop-
erty] to maintain the pier. It did not convey title to
the real property underlying the pier.
(Id. at 27.) Accordingly, the court held, “Although the pier is
affixed to land, the conveyance severed the pier from any
realty and the pier became the personal property of GHOA.”
(Id. (citing Bohle v. Thompson, 554 A.2d 818, 823 (Md. App.
1989) for the proposition that an owner of both the realty and
fixtures upon the realty may effect severance of the fixtures
as personalty in a sales agreement)). Neither Ruvo/Fein nor
the Glenbrook Parties appeal this holding.
On the basis of the holding that the GHOA pier is personal
property, the court below held, “[n]ecessarily, because the
reserved right to use the pier was not an interest in land, nor
a privilege to use land, the reserved right does not derive from
an easement or license. Rather, the right is purely contractu-
al.” (Report at 27.) Again, neither party appeals this holding.
The court below concluded its analysis by stating, “[i]n
determining what contractual rights were reserved, ‘[t]he pre-
eminent rule of construction is to ascertain the intention of the
contracting parties,’ ” and further reasoned, “the language in
the [1987 Pier] deed reserving the right for ‘grantors, their
successors and assigns’ to use the pier is clear and unambigu-
ous on its face.” (Id. at 27-28. (quoting Great Am. Airways,
Inc. v. Airport Auth. of Washoe County, 743 P.2d 628, 629
(Nev. 1987)). On the basis of these principles, the court con-
cluded that “the Fein parcels where the [Ruvo/Fein] pier is to
be located acquired access to the [GHOA] pier as Glenbrook
Properties’ successor in interest.” (Report at 28.)
Ruvo/Fein first argues that this conclusion is erroneous
because Glenbrook Properties never assigned to Fein its
GLENBROOK HOMEOWNERS v. TAHOE REGIONAL 13571
“purely contractual” interest in access to the pier. Second,
Ruvo/Fein points out that because Glenbrook Properties’ right
was purely contractual, even if it did assign the right, it would
only benefit Fein, not the Fein parcels (the relevant inquiry
under Condition O), and would not run with the land. Ruvo/
Fein’s assignments of error are accurate.
[6] It is well-settled that personal contracts do not run with
the land. See, e.g., CLS Mortgage, Inc. v. Bruno, 937 P.2d
1106, 1109 (Wash. App. Div. 1997); Davis v. Oregon Mut.
Ins. Co., 429 P.2d 886, 887 (Wash. 1967); Pelser v. Gingold,
8 N.W.2d 36, 40 (Minn. 1943). Thus, although the deeds by
which Fein purchased the parcels at issue in Condition O con-
veyed the parcels “TOGETHER with all tenements, heredita-
ments, and appurtenances, including easements if any, thereto
belonging or appertaining, and any reservations, remainders,
rents, issues or profits thereof,” because the reserved right to
use the pier was “purely contractual,” the reserved right
clearly was not conveyed as a “tenement[ ], hereditament[ ],
[or] appurtenance[ ]” belonging to the Fein parcels. In sum,
because the 1987 Pier Deed created a purely contractual right
between Glenbrook Properties and GHOA, the conveyance to
Fein of real property together with the appurtenances thereto
simply could not have effected an assignment of Glenbrook
Properties’ separate contractual rights. Accordingly, the Fein
parcels do not have a right to use the GHOA community pier.
IV. Miscellaneous Issues
The Glenbrook Parties make two other claims in these
appeals, both of which are without merit.
First, the Glenbrook Parties argue that they still have “live
claims” which were not disposed of by the lower court’s deci-
sions on the motion to dismiss and the motions for summary
judgment. This is incorrect given the lower court’s holding
that TRPA’s motion for summary judgment “encompass[ed]
[the] remaining claims.” (Report at 5 n.2.)
13572 GLENBROOK HOMEOWNERS v. TAHOE REGIONAL
Second, the Glenbrook Parties argue that the lower courts
erred in denying them certain discovery. However, appeal of
the discovery denial is foreclosed by the Glenbrook Parties’
failure to object to the magistrate’s protective order within the
time period established by Federal Rule of Civil Procedure
72(a). See Simpson v. Lear Astronics Corp., 77 F.3d 1170,
1174 (9th Cir. 1996) (“A party who fails to file timely objec-
tions to a magistrate judge’s nondispositive order with the dis-
trict judge to whom the case is assigned forfeits its right to
appellate review of that order.”).
V. Conclusion
[7] For the foregoing reasons, the judgment of the district
court that the Fein parcels, pursuant to “various deeds,” have
a right of access to the GHOA Community Pier is reversed.
The judgment is affirmed in all other respects. REVERSED
in part and AFFIRMED in part. The Ruvo/Fein parties and
TRPA are entitled to their costs on these appeals.