FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLAN GERHART,
Plaintiff-Appellant,
v. No. 10-35183
LAKE COUNTY MONTANA; LAKE
COUNTY COMMISSIONERS MIKE D.C. No.
9:09-cv-00008-JCL
HUTCHIN, PADDY TRUSLER, and
OPINION
CHUCK WHITSON, in their
individual and official capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Argued and Submitted
December 10, 2010—Seattle, Washington
Filed March 18, 2011
Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
3719
GERHART v. LAKE COUNTY MONTANA 3723
COUNSEL
Bruce A. Fredrickson (argued) and Angela M. LeDuc, Kalvig
& LeDuc, PC, Kalispell, Montana, for plaintiff-appellant
Allan Gerhart.
Dee Ann Cooney (argued), Cooney Law Firm, Helena, Mon-
tana, and Michael William Sehestedt, MACo Legal Services,
Helena, Montana, for defendants-appellees Lake County,
Montana, Mike Hutchin, Paddy Trusler, and Chuck Whitson.
OPINION
PAEZ, Circuit Judge:
Plaintiff-appellant Allan Gerhart is a property owner and
resident of Lake County, Montana. In 2007, Gerhart built an
3724 GERHART v. LAKE COUNTY MONTANA
approach to Juniper Shores Lane, a county road that borders
his property. Around the time Gerhart constructed his
approach, he was informed by a County employee that the
County requires permits for road approaches. Gerhart filed an
approach permit application, which was denied by the County
Commissioners. This denial was remarkable because, accord-
ing to Gerhart’s undisputed testimony, at least ten other prop-
erty owners on his block previously built un-permitted
approaches to Juniper Shores Lane, all without consequence.
Moreover, the deposition testimony of the County Commis-
sioners indicated that outright denial of an approach permit
application was rare, if not unprecedented.
After the Commissioners denied Gerhart’s permit applica-
tion, he brought suit under 42 U.S.C. § 1983, alleging that the
County and the individual Commissioners violated his due
process and equal protection rights. The district court granted
summary judgment to Defendants after concluding that Ger-
hart could not establish a constitutional violation.
We affirm the district court’s grant of summary judgment
to the County. We also affirm the district court’s grant of
summary judgment to the individual Commissioners on Ger-
hart’s due process claims, but reverse the district court’s grant
of summary judgment to the individual Commissioners on
Gerhart’s equal protection claim. As to that claim, we con-
clude that on the basis of the summary judgment record, a rea-
sonable trier of fact could find that the Commissioners
violated Gerhart’s equal protection rights and that the Com-
missioners are not entitled to qualified immunity.
I. BACKGROUND
The facts presented in this section are culled from the depo-
sition testimony of Gerhart; the three Lake County Commis-
sioners who denied Gerhart’s permit application; Larry Ehle,
the Road Superintendent of the County; Kurt Moser, an attor-
GERHART v. LAKE COUNTY MONTANA 3725
ney for the County; and Terrance Murphy, a sanitarian for the
County.
A. Gerhart’s Approach Permit Application
Around 1996, Gerhart purchased lakefront property in the
Juniper Shores subdivision in Lake County, Montana. Ger-
hart’s property is bordered by Juniper Shores Lane on the
northwest. In late 1999, Gerhart began building a house on his
property. Gerhart’s “legal access” to the property is a platted
community lane that does not actually reach Gerhart’s house.
To gain access to his building site, Gerhart initially obtained
an easement from his neighbors, the Daues, in 1999. Gerhart,
however, alleges that this easement eventually became unsuit-
able because it was often blocked by equipment for the
Daues’ construction projects. After multiple instances of
being unable to use the easement, Gerhart built his own
access road and approach1 that stretches from his house to
Juniper Shores Lane. Gerhart testified that, as a contractor, he
was able to construct the access road around the drainfield2 on
his property. It is undisputed that having reliable access to
1
The term “approach” is not defined in the County’s permit application,
nor was it defined by the parties in their briefing. The context in which the
term is used in the materials for this case suggests that it refers to the por-
tion of a road or driveway that abuts a road and is contained on the public
right-of-way. We also note that MONT. ADMIN. R. 18.5.103 similarly
defines “approach” as “that section of the highway right-of-way between
the outside edge of shoulder and the right-of-way line which is designed
as a highway for the movement of vehicles between the highway and the
abutting property.”
2
The term “drainfield” is not defined in the Lake County Wastewater
Treatment System Regulations, nor is it defined in Webster’s dictionary.
The Montana Supreme Court has explained that when “sewage disposal
needs of the community are met by the use of individually owned and con-
structed drainage systems,” the liquid sewage waste is “piped into under-
ground drainfields and treated by a ‘leaching’ process where [the liquid
waste] pass[es] through the soil surrounding the drain field.” Lin-
coln/Lewis & Clark Cnty. Sewer Dist. v. Bossing, 696 P.2d 989, 990
(Mont. 1985).
3726 GERHART v. LAKE COUNTY MONTANA
Gerhart’s house would increase the property’s value by sev-
eral hundred thousand dollars.
Unrelatedly, at some point around 2005, Gerhart was
involved in a “neighborhood feud” with the Gobles, who
owned property a few lots away from Gerhart on Juniper
Shores Lane. According to Terrance Murphy, a sanitarian for
the County, the Gobles (and others) complained to him that
Gerhart had covered the drainfield with his access road.
A few days after finishing the access road and approach,
Gerhart was contacted by Larry Ehle, the Road Superinten-
dent of the County. Ehle told Gerhart that the County requires
a permit for building an approach to a county road, a fact then
unknown to Gerhart. Ehle also revealed that one of the Gobles
had made the complaint that prompted Ehle to request a per-
mit from Gerhart. Gerhart promptly filled out and returned the
permit application. Gerhart also discovered that none of his
neighbors in the Juniper Shores subdivision had received per-
mits for their approaches. Gerhart alleges that since 1994 (the
year the County began requiring approach permits), at least
ten other lots on his block have constructed approaches to
Juniper Shores Lane without a permit.
Gerhart testified that a few days after submitting his permit
application, he received a phone message from Ehle saying,
“I see the approach. It looks good. In fact, it looks better than
any other approach on Juniper Shores Lane.” Gerhart under-
stood this message to mean that his permit application had
been approved. Ehle did not tell Gerhart that the permit also
had to be approved by the Commissioners, although the appli-
cation form included blank spaces for the Commissioners’
signatures. Nor did Ehle instruct Gerhart to stop construction
on the approach.
Shortly after viewing Gerhart’s approach, Ehle signed Ger-
hart’s application and forwarded it to County Commissioners
Mike Hutchins, Paddy Trusler, and Chuck Whitson for
GERHART v. LAKE COUNTY MONTANA 3727
approval. Ehle’s signature indicated his approval of Gerhart’s
approach.
A few months later, in late 2007 or early 2008, Commis-
sioner Trusler instructed Ehle that Gerhart’s permit applica-
tion was to be put on hold. Ehle testified at his deposition that
he was surprised by this instruction, stating, “it raises the eye-
brow and you kind of wonder what . . . is going on there . . . .
That seemed to be a little out of the usual to me.” Commis-
sioners Hutchin and Whitson both testified that they did not
remember why Gerhart’s permit application was put on hold.3
Only Commissioner Trusler testified about the purported rea-
sons for placing Gerhart’s application on hold. Specifically,
Commissioner Trusler stated that the Commissioners had con-
cerns about (1) the steepness of Gerhart’s approach, and (2)
the fact that Gerhart had constructed his approach without
first obtaining a permit. Commissioner Trusler also testified
that “there was a strong belief that the road that was already
there crossed the drainfield.” According to Commissioner
Trusler, his concerns about Gerhart’s drainfield were based on
his personal knowledge of the Juniper Shores area and its topog-
raphy.4 Although Commissioner Trusler testified that he had
3
In his deposition, Commissioner Whitson testified as follows:
Q (Babington): The commissioners took a different view [from
Ehle]. And what I’m trying to find [out] is why did they take a
different view than what Mr. Ehle recommended to the commis-
sioners
A (Whitson): You know, I can’t answer that. I don’t remember.
Similarly, Commissioner Hutchin testified:
Q (Babington): And Mr. Ehle testified that he was told to put
[Gerhart’s application] on hold.
A (Hutchin): May have been, I don’t know.
Q: Why?
A: I don’t know.
4
Before becoming a Commissioner, Trusler had previously worked for
22 years as Director of Lake County Land Services, which oversees the
County’s planning, sanitation, and solid waste disposal operations.
3728 GERHART v. LAKE COUNTY MONTANA
concerns about Gerhart’s drainfield from the beginning, nei-
ther of the other Commissioners nor Ehle remembers Com-
missioner Trusler voicing these concerns until several months
later, after the Commissioners decided to deny Gerhart’s
application.
In May 2008, the Commissioners, Ehle, and Deputy
County Attorney Kurt Moser met to discuss Gerhart’s appli-
cation, and decided that Ehle would send a letter to Gerhart
stating that the permit was denied. Roughly one month later,
Gerhart received the letter, which did not contain any expla-
nation for the denial. Around the same time, Moser and Mur-
phy (the County sanitarian who responded to the Gobles’
complaints about Gerhart’s drainfield) exchanged emails
about whether Gerhart’s private road might cross his drain-
field. In an email, Moser told Murphy that he spoke with one
of the Gobles about Gerhart’s drainfield and asked if the Lake
County Environmental Health Department had taken any
action against Gerhart. The next day Murphy responded to
Moser,
If the [C]ounty has other issues then lets [sic] team
up and make it worth our while. I have a long history
with Mr. Gerhart; to say that he is smooth (to the
point of being slimy) is an understatement. Believe
nothing that comes out of his mouth. If we take him
on it will be quite an ordeal and burn up a lot of
time.
Moser then asked Murphy to “put together a report with a list
of facts detailing [Gerhart’s] specific violations (Including
how you know what you know).” Moser also suggested to
Murphy that “[i]f [Gerhart] fails to remove the encroachment
. . . then it would make sense to file everything at the same
time.” Gerhart confirmed that his previous interactions with
Murphy had been unfriendly, and that Murphy had made it
difficult for him to work in the County. Besides his history
GERHART v. LAKE COUNTY MONTANA 3729
with Murphy, Gerhart also testified that he had difficulty in
dealing with other County planning and sanitation employees.5
B. Lake County’s Approach Permitting Process
Lake County does not have a formal process for a property
owner who, like Gerhart, wishes to construct an approach to
a county road. In 1994, the Commissioners began requiring
approach permits. As Gerhart points out, “[t]here are no writ-
ten or documented rules, regulations, laws, or ordinances that
exist in Lake County or in Montana that put property owners
on notice that the [County’s permit process] exists. The only
tangible evidence of the County’s Permit process is the Permit
application document itself.” Furthermore, the County often
turns a blind eye to a property owner who builds an approach
without a permit.6 An affidavit in support of Gerhart’s posi-
tion states that most property owners on Juniper Shores Lane
have added approaches to the road, all without submitting per-
mit applications to the County.
Nor is there any documented process or guidance for the
Commissioners to follow in deciding whether to grant an
approach permit once an application is submitted. Still, the
5
As just one example among many, Gerhart testified that he had a proj-
ect that was previously stalled by County employees for fourteen months.
According to Gerhart’s client, the County employees who held up the
project made veiled comments that Gerhart was the reason for the delay.
6
For example, Gerhart testified about the following exchange that
occurred shortly after the County denied his permit application:
Noel (a neighbor) was doing some site work for landscapers and
one of the neighbors complained about rocks on the County’s
approach. And Larry Ehle came out, stood on Noel’s brand new
approach that he built and proceeded to tell him that maybe a
couple of rocks needed to be moved. And, of course, afterwards
I looked at Noel and I said, “Well, Noel, did you apply for a per-
mit for this approach?” And Ehle was standing right there. You
could see it’s a brand new road. And he just laughed and said,
“No.”
3730 GERHART v. LAKE COUNTY MONTANA
Commissioners and Ehle all testified about their routine prac-
tice for responding to approach permit applications. The gen-
eral practice is for Ehle to investigate the approach. If the
approach has any problems, then Ehle typically works with
the applicant to address them. After Ehle signs off on an
application, he forwards it to the Commissioners. If two of the
three Commissioners sign the permit, it is granted.
The Commissioners rarely disagree with Ehle’s recommen-
dation of how to handle a permit application. In fact, the testi-
mony of the Commissioners and Ehle indicates that outright
denial of an approach permit application is incredibly uncom-
mon. Commissioner Hutchin could remember only three per-
mit applications (including Gerhart’s) that were denied in the
24 years that he was a Commissioner. Commissioner Whitson
could not remember any permit applications other than Ger-
hart’s that were denied while he was a Commissioner. Nor
could Commissioner Trusler recall ever denying a permit after
the permit was “given back to the road superintendent to work
out some particular issues.” Finally, Ehle has considered over
one thousand permit applications, none of which have ever
been denied.
C. Procedural History
On June 12, 2008, Gerhart received written notification that
his permit application was denied. A few weeks later, Ger-
hart’s attorney sent a letter to the County, complaining that
other similarly situated property owners on Juniper Shores
Lane had built approaches without obtaining permits. In
response, the Commissioners sent a letter to Gerhart that for
the first time elaborated their reasons for denying his permit.
In particular, the Commissioners stated that the reasons for
denying Gerhart’s application were: (1) the fact that Gerhart
had alternate driveway access to his property; and (2) the fact
that adding an additional approach to Juniper Shores Lane
was unsafe. Relatedly, the Commissioners alerted Gerhart that
if his driveway crossed over the drainfield (which they indi-
GERHART v. LAKE COUNTY MONTANA 3731
cated it “may”), he must stop using the driveway and consult
with the Lake County Environmental Health Department.
In January 2009, after the parties were unable to resolve the
dispute, Gerhart filed this section 1983 case in federal district
court, claiming that the County and the individual Commis-
sioners violated his due process and equal protection rights.
Defendants moved for summary judgment. In support of their
summary judgment motion, the individual Commissioners
argued that they were entitled to qualified immunity on Ger-
hart’s due process claims and that Gerhart had not made out
an equal protection violation.7 The County argued that it was
entitled to summary judgment because Gerhart had not
alleged a County policy that resulted in a constitutional viola-
tion and therefore could not maintain a claim under Monell v.
Department of Social Services, 436 U.S. 658 (1978). After
concluding that Gerhart could not establish a constitutional
violation, the district court granted Defendants’ motion for
summary judgment on the federal claims and declined to
exercise supplemental jurisdiction over Gerhart’s state law
claims, pursuant to 28 U.S.C. § 1367(c)(3). Gerhart timely
appealed.
II. ANALYSIS
We review de novo the district court’s grant of summary
7
Summary judgment on the ground of qualified immunity for the indi-
vidual Commissioners is appropriate if (1) viewing the evidence in the
light most favorable to Gerhart, the Commissioners’ conduct did not
amount to a constitutional violation, or (2) in the alternative, Gerhart’s
constitutional rights were not “clearly established at the time of the viola-
tion.” Bull v. City and Cnty. of S.F., 595 F.3d 964, 971 (9th Cir. 2010) (en
banc) (internal quotation marks omitted); see also Saucier v. Katz, 533
U.S. 194, 201 (2001). Because the district court determined that Gerhart
could not establish a constitutional violation, it ruled that the individual
Commissioners were entitled to summary judgment under the first prong.
As a result, the court did not address the second prong of the qualified
immunity analysis.
3732 GERHART v. LAKE COUNTY MONTANA
judgment in favor of Defendants. See Braswell v. Shoreline
Fire Dep’t, 622 F.3d 1099, 1100 (9th Cir. 2010). Summary
judgment for Defendants is appropriate if “there is no genuine
issue of material fact and [Defendants are] entitled to judg-
ment as a matter of law.” Orloff v. Cleland, 708 F.2d 372, 375
(9th Cir. 1983).
A. Gerhart’s Due Process Claims
[1] Gerhart alleges both procedural and substantive due
process violations resulting from the denial of his permit
application. To succeed on either claim, Gerhart must first
demonstrate that he was deprived of a constitutionally pro-
tected property interest. See Shanks v. Dressel, 540 F.3d 1082,
1087 (9th Cir. 2008) (substantive due process); Foss v. Nat’l
Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)
(procedural due process). We hold that Gerhart cannot make
this threshold showing, and affirm the district court’s grant of
summary judgment to Defendants on Gerhart’s due process
claims.
[2] In some instances, a person can have a constitutionally
protected property interest in a government benefit, such as a
license or permit. Bd. of Regents of State Colls. v. Roth, 408
U.S. 564, 577 (1972); see also Groten v. California, 251 F.3d
844, 850 (9th Cir. 2001) (holding that plaintiff had a protected
property right to a temporary appraiser’s license). To have a
property interest in a government benefit, “a person clearly
must have more than an abstract need or desire for [the bene-
fit]. He must have more than a unilateral expectation of it. He
must, instead have a legitimate claim of entitlement to it.”
Roth, 408 U.S. at 577 (emphasis added). Furthermore, a prop-
erty interest must “stem from an independent source such as
state law—rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits.” Id.
[3] Along the same lines, we have held that state law
creates a “legitimate claim of entitlement” when it “imposes
GERHART v. LAKE COUNTY MONTANA 3733
significant limitations on the discretion of the decision
maker.” Braswell, 622 F.3d at 1102 (internal quotation marks
and alterations omitted). For example, we have held that such
an entitlement to a government permit exists when a state law
or regulation requires that the permit be issued once certain
requirements are satisfied. See, e.g., Groten, 251 F.3d at 850
(holding that a protected property right to a license existed
where both federal and state law entitled the applicant to a
license whenever certain statutory requirements were met);
Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988) (hold-
ing that a builder had a property interest in a building permit
where city regulations provided that once an applicant met
certain requirements, a permit must be issued).
[4] Here, Montana law does not impose any limitations on
the Commissioners’ discretion to permit approaches to county
roads. Instead, Montana Code Annotated section 7-14-2102
simply provides, “[e]ach board of county commissioners may
in its discretion do whatever may be necessary for the best
interest of the county roads and the road districts.” Clearly,
state law does not constrain the Commissioners’ discretion to
grant or deny approach permit applications.
[5] Our analysis does not end here, however, because Ger-
hart does not argue that his legitimate claim of entitlement to
an approach permit is grounded in Montana law. Instead, Ger-
hart argues that the policies and practices of the County Com-
missioners have created such an entitlement. The Supreme
Court has long recognized the existence of constitutionally
protected property interests where a governmental body
employs policies and practices that create a legitimate claim
of entitlement to a government benefit. See Perry v. Sinder-
mann, 408 U.S. 593, 601 (1972) (holding that a protected
property interest exists where there are “rules or mutually
explicit understandings that support [a plaintiff’s] claim of
entitlement to the benefit”). For example, the plaintiff in
Perry, a non-tenured junior faculty member at a state univer-
sity, argued that he had a protected property interest in his job
3734 GERHART v. LAKE COUNTY MONTANA
in light of his employer’s “de facto tenure program” for which
he qualified. Id. at 600. The Court sided with Perry, writing,
“[Perry] must be given an opportunity to prove the legitimacy
of his claim of such entitlement in light of the policies and
practices of the institution.” Id. at 603 (internal quotation
marks omitted). Similarly, in Orloff, 708 F.2d at 377, we held
that “[d]espite the apparent expiration date of [the plaintiff’s
employment] contract, there may have arisen an understand-
ing of continued employment based on prior treatment of [the
plaintiff] or other . . . employees sufficient to constitute a de
facto property interest.”
[6] Gerhart argues that, like the professor in Perry and the
plaintiff in Orloff, the Commissioners’ policies and practices
created a system for granting approach permits that endowed
Gerhart with a claim of entitlement. We are not persuaded by
this argument. Critically, unlike the professor in Perry and the
plaintiff in Orloff, Gerhart did not have an ongoing or infor-
mal agreement with the County. Although Gerhart has sympa-
thetically alleged that he believed his permit application was
approved, he has not alleged a mutual understanding with the
Commissioners. There is simply no evidence that the County
ever entered into an agreement with Gerhart that he could
construct an approach to Juniper Shores Lane. Despite Ehle’s
apparent approval of Gerhart’s approach, there is no evidence
that the Commissioners shared this view.
[7] A person’s belief of entitlement to a government bene-
fit, no matter how sincerely or reasonably held, does not
create a property right if that belief is not mutually held by the
government. The Supreme Court has explained, “[a] constitu-
tional entitlement cannot be created—as if by estoppel—
merely because a wholly and expressly discretionary state
privilege has been granted generously in the past.” Conn. Bd.
of Pardons v. Dumschat, 452 U.S. 458, 465 (1981); accord
Leis v. Flynt, 439 U.S. 438, 443 (1979) (concluding that no
property right to appear pro hac vice in Ohio court existed
because the plaintiff’s counsel did not demonstrate “the requi-
GERHART v. LAKE COUNTY MONTANA 3735
site mutual understanding that they would be permitted to
[appear pro hac vice].”). We have similarly held that a gov-
ernment body’s past practice of granting a government benefit
is insufficient to establish a legal entitlement to the benefit.
See, e.g., Cassidy v. Hawaii, 915 F.2d 528, 531 (9th Cir.
1990) (rejecting the argument that because the government
body “generally renews permits, . . . this custom created an
understanding that would justify a legal entitlement”);
Punikaia v. Clark, 720 F.2d 564, 570 (9th Cir. 1983) (holding
that a state’s continuous operation of a nursing home was not
the type of “custom” or “regularity of performance” that
would create a legitimate entitlement (internal quotation
marks omitted)). Similarly here, Gerhart’s claim of entitle-
ment is grounded in the County’s past practice of leniently
granting approach permits, without any evidence or allegation
of a mutual understanding that he was otherwise entitled to a
permit. Accordingly, we conclude that there is no genuine
issue of material fact, and Gerhart does not have a protected
property interest in an approach permit.
[8] Gerhart’s remaining arguments are unavailing. Gerhart
argues that the Commissioners limited their own discretion by
placing Ehle in charge of administering approach permits.
Specifically, Gerhart claims that the Commissioners vested
Ehle with the authority to approve permit applications, and
that Ehle and Gerhart shared a mutual understanding that Ger-
hart’s application was approved. Crucially, though, neither
Ehle nor the Commissioners testified at their depositions that
Ehle had the authority to approve approach permit applica-
tions. On the contrary, all of the Commissioners and Ehle tes-
tified that the decision to approve or deny a permit application
was left to the Commissioners’ discretion. Therefore, there is
no record evidence that Ehle’s participation in the permitting
process limited the Commissioners’ discretion or created a
legitimate claim of entitlement for Gerhart. We therefore
affirm the district court’s grant of summary judgment to
Defendants on Gerhart’s due process claims.
3736 GERHART v. LAKE COUNTY MONTANA
B. Gerhart’s Equal Protection Claim
[9] Gerhart also claims that in denying his approach permit
application, the Commissioners violated the Equal Protection
Clause of the Fourteenth Amendment.8 The Equal Protection
Clause guarantees, “No state shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. Gerhart’s equal protection claim is
a “class of one claim,” which alleges that the Commissioners
intentionally treated him differently from other similarly situ-
ated permit applicants. The Supreme Court has recognized
that “an equal protection claim can in some circumstances be
sustained even if the plaintiff has not alleged class-based dis-
crimination, but instead claims that she has been irrationally
singled out as a so-called ‘class of one.’ ” Engquist v. Or.
Dep’t of Agric., 553 U.S. 591, 601 (2008) (citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam)).
[10] To succeed on his “class of one” claim, Gerhart must
demonstrate that the Commissioners: (1) intentionally (2)
treated Gerhart differently than other similarly situated prop-
erty owners, (3) without a rational basis. Willowbrook, 528
U.S. at 564; North Pacifica LLC v. City of Pacifica, 526 F.3d
478, 486 (9th Cir. 2008). Although Gerhart must show that
the Commissioners’ decision was intentional, he need not
show that the Commissioners were motivated by subjective ill
will. Willowbrook, 528 U.S. at 565 (rejecting the interpreta-
tion that a plaintiff must allege that the governmental action
was the result of subjective ill will in a “class of one” claim).
8
It appears that Gerhart’s claim against the County was grounded on the
Commissioners’ alleged violation of Gerhart’s due process rights. Because
we have determined that Gerhart has not made out a violation of his due
process rights, his claim against the County does not survive. To the extent
that Gerhart’s claim against the County derives from an equal protection
violation, Gerhart has not offered any argument to support this theory so
we consider it waived. See Crawford v. Lungren, 96 F.3d 380, 389 n.6
(9th Cir. 1996).
GERHART v. LAKE COUNTY MONTANA 3737
The district court erred in holding that no genuine issues of
material fact existed and that Gerhart’s “class of one” claim
failed as a matter of law.
1. Unique Treatment
[11] Gerhart presented considerable evidence that he was
treated differently than other similarly situated property own-
ers throughout the permit application process. Specifically,
Gerhart’s uncontradicted testimony was that at least ten other
property owners on his block have built approaches to Juniper
Shores Lane of which the Commissioners are aware, but for
which the Commissioners have not required approach per-
mits. This evidence strongly suggests that Gerhart was singled
out when he was told to apply for an approach permit.
[12] The evidence also suggests that Gerhart was treated
differently than other permit applicants after his application
was submitted. The usual practice for dealing with concerns
about an approach was for Ehle to work with the applicant to
address the problem. With Gerhart’s application, however, the
Commissioners did not follow this usual procedure; instead
Gerhart’s application was put “on hold.” The eventual denial
of Gerhart’s permit application was also an outlying occur-
rence, as described above.
2. Intentional Treatment by the Commissioners
In the district court’s view, the evidence unambiguously
demonstrated that the Commissioners at worst accidentally
discriminated against Gerhart in denying his approach permit
application. In particular, the district court rejected the possi-
bility that Gerhart’s difficult history with the County and the
complaints lodged against him by neighbors could have influ-
enced the Commissioners’ treatment of his application.
[13] This approach was erroneous. By looking for evi-
dence of the Commissioners’ personal animosity towards
3738 GERHART v. LAKE COUNTY MONTANA
Gerhart, the district court incorrectly analyzed Gerhart’s
“class of one” claim, which does not require a showing of the
government officials’ subjective bad feelings towards him.
Gerhart does not need to demonstrate that the Commissioners
harbored ill will towards him in order to meet the “intent”
requirement of his “class of one” claim. Willowbrook, 528
U.S. at 565. Instead, Gerhart must show that the Commission-
ers intended to treat him differently from other applicants.
Viewing this evidence in the light most favorable to Gerhart,
as we must, we conclude there are triable issues of fact on this
question.
[14] For one thing, a reasonable factfinder could find that
the Commissioners were aware that their treatment of Ger-
hart’s permit application was anomalous because all three
Commissioners testified that their ordinary practice of han-
dling permit applications rarely, if ever, included denying
applications. Also relevant to the Commissioners’ intent is
evidence that Commissioner Trusler—the person who initially
directed Ehle to put Gerhart’s application on hold—spoke to
one of the Gobles about Gerhart’s approach. This evidence
suggests that the Commissioners were aware of complaints
against Gerhart and might have intentionally singled him out.
Additionally, Gerhart presented evidence that Murphy
shared his negative views about Gerhart with Moser around
the time that Moser directed Ehle to notify Gerhart that his
permit application was denied. This evidence suggests that
Murphy’s past experiences with Gerhart might have influ-
enced the denial of Gerhart’s application.
[15] Finally, Gerhart alleged a continuous history of
harassment by County employees from the planning and sani-
tation departments, which were headed by Commissioner
Trusler for more than two decades before he became a Com-
missioner. In one instance, a sanitation conflict between Ger-
hart and Murphy escalated to the point that Commissioner
Trusler became involved. In light of this previous dispute, a
GERHART v. LAKE COUNTY MONTANA 3739
factfinder could find that Trusler had a reason to single out
Gerhart.
3. Rational Basis
[16] The district court also made a crucial error in its anal-
ysis of the rational basis requirement of Gerhart’s “class of
one” claim. Specifically, the district court analyzed whether
there was a rational basis for denying Gerhart’s application,
when it should have analyzed whether there was a rational
basis for treating Gerhart differently. Willowbrook, 528 U.S.
at 564 (explaining that a class of one claim requires plaintiff
to show that “there is no rational basis for the difference in
treatment”). We have recognized 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 govern-
ment action.9 For example, in SeaRiver Maritime Financial
Holdings, Inc. v. Mineta, 309 F.3d 662 (9th Cir. 2002), we
considered the constitutionality of a federal law that excluded
a single oil tanker from the waters of Prince William Sound,
Alaska. In rejecting the “class of one” claim brought by the
owners and operator of the tanker, we held that it was reason-
able for Congress to “single out” the tanker, which had previ-
ously spilled eleven million gallons of oil into the Sound. Id.
at 680. We explained that it was “also rational for Congress
to use this past disaster as a measure of future performance to
specifically bar the [tanker] from transporting oil through [the
Sound].” Id. (emphasis added). Thus, the rational basis prong
of Willowbrook requires that we determine whether the Com-
missioners had a rational basis for singling out Gerhart.
9
This principle applies in all Equal Protection claims in which there
must be a rational basis for differential treatment. See, e.g., Lazy Y Ranch
Ltd. v. Behrens, 546 F.3d 580, 590 (9th Cir. 2008) (“Similar to [Willow-
brook], the question here is not simply whether administrative costs were
a rational reason for denying Lazy Y’s bid [to lease certain land from the
Idaho State Board of Land Commissioners] . . . . The real question is
whether there is a rational basis for this distinction.”) (emphasis added)).
3740 GERHART v. LAKE COUNTY MONTANA
We conclude that there is a genuine issue of material fact
as to whether the Commissioners had a rational basis for treat-
ing Gerhart differently from similarly situated property own-
ers. When the Commissioners eventually disclosed their
reasons for denying Gerhart’s application, they explicitly
stated that the denial was based on an (unconfirmed) belief
that Gerhart had alternate access to the property, and a safety
concern that adding an additional approach to Juniper Shores
Lane would create a safety risk.10 Neither of these reasons is
sufficient to affirm the grant of summary judgment in favor
of the Commissioners.
[17] First, although the Commissioners stated in their
denial letter that they believed Gerhart had alternate access to
his property, Gerhart claims that this alternate access is not
reliable. Gerhart also claims that other property owners on
Juniper Shores Lane have constructed approaches to the lane
despite having alternate access.
[18] Second, as to the Commissioners’ safety concern,
Gerhart testified that at least ten of his neighbors have
approaches to Juniper Shores Lane. Even if the Commission-
ers might have rationally feared that too many approaches
would hinder safety of the lane, it may not be rational to
require Gerhart to bear this burden alone. See Del Monte
Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,
1509 (9th Cir. 1990) (“Although the objective of preserving
a habitat for [a certain species of butterfly] is rational, it may
not be rational to single out [plaintiff’s property] to provide
it.”). The district court thus erred in concluding that no genu-
ine issues of material fact existed and that the individual
Commissioners were entitled to summary judgment on Ger-
hart’s equal protection claim.
10
The denial letter also mentioned as a “related matter” the Commis-
sioners’ concern that Gerhart’s driveway “may have been installed over
the top of his existing septic system drainfield.” Contrary to the district
court’s analysis, the possible drainfield problem was not given as a reason
for denying Gerhart’s application.
GERHART v. LAKE COUNTY MONTANA 3741
C. Qualified Immunity for the Individual Defendants
[19] Qualified immunity shields the individual Commis-
sioners from liability “insofar as their conduct d[id] not vio-
late clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). As we noted above, to
determine whether the individual Commissioners are entitled
to qualified immunity, we ask (1) whether the plaintiff has
“ma[de] out a violation of a constitutional right”; and (2)
“whether the right at issue was ‘clearly established’ at the
time of defendant[s’] alleged misconduct.” Pearson v. Calla-
han, 129 S. Ct. 808, 816 (2009) (citing Saucier, 533 U.S. at
201). We can consider the two questions in any order, and if
we answer either question in the negative, the individual
Commissioners are entitled to qualified immunity. Id. at 818.
Although there are genuine triable issues of fact as to the
merits of Gerhart’s equal protection claim, the above discus-
sion demonstrates that he has alleged a constitutional viola-
tion. Therefore, we must consider whether Gerhart’s equal
protection right was clearly established at the time his permit
application was rejected. We conclude that the right was
clearly established, and conclude that the individual Commis-
sioners are not entitled to summary judgment on the ground
of qualified immunity.
A defendant is not liable for actions that “d[id] not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow, 457 U.S. at
818. “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be
clear to a reasonable [official] that his conduct was unlawful
in the situation he confronted.” Saucier, 533 U.S. at 202. A
right can be clearly established in a novel factual situation, so
long as the existing law gives the defendants “fair warning”
that their actions are unconstitutional. Hope v. Pelzer, 536
U.S. 730, 741 (2002).
3742 GERHART v. LAKE COUNTY MONTANA
[20] Gerhart’s constitutional right not to be intentionally
treated differently than other similarly situated property own-
ers without a rational basis was clearly established at the time
his permit application was denied. Gerhart’s application was
denied in June 2008, nearly eight years after the Supreme
Court decided Willowbrook. Like Gerhart’s case, Willow-
brook involved a “class of one” claim by a property owner
who complained that she was treated differently than other
property owners in the conditions imposed by the municipal-
ity for access to a public resource. The facts of Willowbrook
and this case are exceptionally similar. Because Willowbrook
clearly establishes Gerhart’s constitutional right to not be
intentionally treated differently than other similarly situated
property owners without a rational basis, we conclude that the
individual Commissioners are not entitled to qualified immu-
nity on Gerhart’s equal protection claim.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the County. We also affirm the
district court’s grant of summary judgment to the individual
Commissioners on Gerhart’s due process claim. We reverse
the district court’s grant of summary judgment to the individ-
ual Commissioners on Gerhart’s equal protection claim and
remand that claim for trial.11 Gerhart shall recover his costs on
appeal.
AFFIRMED IN PART AND REVERSED IN PART.
11
Because the district court dismissed all of Gerhart’s federal claims, it
declined to assert supplemental jurisdiction over his state law claims pur-
suant 28 U.S.C. § 1367(c)(3). In light of our disposition, we further order
that Gerhart’s state law claims be reinstated subject to further pretrial pro-
ceedings, as warranted.