9th Circuit Court of Appeals rules in favor of Incline district in beach access case
December 28, 2011
INCLINE VILLAGE, Nev. and#8212; Christmas has come two days late for the Incline Village General Improvement District.
A three-judge panel of the 9th U.S. Circuit Court of Appeals out of San Francisco on Tuesday rejected an appeal filed by Crystal Bay resident Frank Wright, who argued IVGID had violated the constitution by not allowing him and other district residents equal access to Incline, Ski, Burnt Cedar and Hermit beaches.
The 21-page opinion authored by Judge Milan D. Smith, Jr., marks the latest chapter in years-long saga over beach access in Incline Village, and is the latest action in a nearly three-year-long back-and-forth debate between IVGID and Wright, who filed his initial lawsuit in March 10, 2008, in U.S. District Court.
In a Tuesday phone interview, IVGID General Manager Bill Horn, who took over the district in 2001, expressed his pleasure, saying he was and#8220;never worriedand#8221; the 9th Circuit would rule differently.
and#8220;I always felt we have adhered to the constitution during … my 10 and a half years overseeing the district,and#8221; Horn said. and#8220;The board has always felt it did not have the authority to change the deed restriction. I’m pleased with the federal decision and the 9th Circuit decision … it supports a long-standing decision of the trustees prior to 2001 and since I arrived.and#8221;
Wright said he just received the ruling when called Tuesday afternoon for comment. He said he had skimmed the order but had yet to read it fully.
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and#8220;Well, you win some, you lose some,and#8221; Wright said. and#8220;I’m disappointed with the ruling, but it’s not over. My attorney and I are going to sit down and look at our options and go from there.and#8221;
Possible options include appealing the ruling to the entire 9th Circuit Court of Appeals (rather than a three-judge panel) or even the U.S. Supreme Court, Wright said, although he said he couldn’t speculate if things would go that far.
Ted Fuller, current chair of the IVGID board (who was not a board member when Wright filed the original suit), did not return calls for comment Tuesday.
By being one of the 427 IVGID parcels denied access to the Incline beaches, Wright had argued that his rights to free speech, assembly and association were being violated. Furthermore, he argued the district’s Ordinance No. 7 and#8212; which details the 1968 deed restriction that allows access to Incline, Burnt Cedar, Ski and Hermit beaches only to parcels situated within IVGID boundaries as of that year and#8212; violated his and#8220;equal protection rights by treating him differently from and#8216;residents’ of parcels which were within the confines of IVGID as it was constituted…and#8221;
On April 20, 2010, Judge Larry R. Hicks ruled in favor of IVGID, therefore upholding the 1968 deed restriction. Shortly after, Wright appealed Hicks’ ruling to the 9th Circuit, maintaining his First and 14th Amendments were being violated.
Tuesday’s ruling upholds Hicks’ opinion, and states the following: and#8220;Ordinance 7 expressly references the restrictive covenant. The fact that only owners of the portions of the 1968 property paid for the purchase and improvement of the beaches also strongly supports Ordinance 7’s reasonableness.and#8221;
Wright also challenged IVGID’s Policy and Procedure 136, which designates certain walkways and sidewalks within boundaries of the beaches and all district venues as public forums, while specifically stating the beach areas themselves are not.
The 9th Circuit disagreed, finding the beaches are not and#8220;traditional public forum,and#8221; and that laws allow restrictions.
The decision cited other court rulings that said the First Amendment does not guarantee access to property simply because it is owned or controlled by the government, and that government can limit use of properties under its control and#8220;to the uses to which the properties are fully dedicated.and#8221;
and#8220;Although persons who are lawfully granted access to the beaches may swim, play games, rest and enjoy the surroundings at the beaches as they could at a typical public park, the properties here are not ordinary beaches,and#8221; the ruling said, noting that gates and kiosks separate the restricted beaches from public areas and and#8220;clearly indicate to the public that the beaches are not intended for the exercise of First Amendment rights.and#8221;
and#8220;The beaches are a special enclave, subject to greater restriction on access than the parking lots and other areas surrounding the beaches,and#8221; the ruling said.
and#8212; The Associated Press contributed to this report.