9th Cir. Court of Appeals Holds Opponent of Proposed Cell Tower Had Standing Against Regional Planning Agency

This post was authored by Matthew Loescher, Esq.

Plaintiff Gregory Garmong filed this action in district court, challenging a decision by the defendant Tahoe Regional Planning Agency (“TRPA”) to issue a permit allowing a cell tower to be built in a mostly undeveloped area. The district court dismissed Garmong’s complaint due to his failure to establish Article III standing to bring his claims, but granted him leave to amend. Garmong filed a first amended complaint, which the district court again dismissed for lack of Article III standing.

 At the outset, the court noted that environmental plaintiffs, such as Garmong, can establish an injury in fact “by showing a connection to the area of concern sufficient to make credible the contention that the person’s future life will be less enjoyable … if the area in question remains or becomes environmentally degraded.” Here, Garmong alleged that in the past he has used the area around the cell tower for personal fitness, recreation, and nature-study, and that he planned to continue doing so in the future. He further alleged that the cell tower will “interrupt the view path for one of his primary locations to enjoy Lake Tahoe vistas in peaceful contemplation,” and that the TRPA failed to consider its own regulations, In this case, Garmong asked that a court prohibit the permit from being “legally maintained.”

 Garmong attended the public hearing on the cell tower proposal and gave public comment, as well as appealed the resultant decision to the TRPA Board of Directors, which unanimously denied the appeal. As such, the court found that Garmong had statutory standing to bring his claim. Furthermore, in a hearing prior to its dismissal of Garmong’s complaint for the second and final time, the district court assured Garmong that it would grant him leave to further amend his complaint; however, it entered its dismissal without waiting for an amended complaint. The court held this was an abuse of discretion.

 The court lastly found that the district court did not conduct a standalone analysis for the preliminary injunction, but instead relied on its reasoning from an earlier decision denying a temporary restraining order requested by Garmong. Accordingly, the court vacated the district court’s denial and instructed the district court to conduct an appropriate analysis of the request for a preliminary injunction.

 Garmong v Tahoe Regional Planning Agency, 806 Fed Appx. 568 (9th Cir, CA 3/30/2020)