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Turecek v. County of San Diego ( 2005 )


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  •                      FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITIZENS FOR HONESTY AND                    
INTEGRITY IN REGIONAL PLANNING,
Plaintiff,
No. 03-55830
and
KARL J. TURECEK,                                   D.C. No.
CV-02-01855-RMB
Plaintiff-Appellant,
ORDER
v.
COUNTY OF SAN DIEGO,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, District Judge, Presiding
Argued and Submitted
February 10, 2005—Pasadena, California
Filed February 25, 2005
Before: Alfred T. Goodwin, Frank J. Magill,* and
Pamela Ann Rymer, Circuit Judges.
COUNSEL
Scott Zarin, San Francisco, California, for the plaintiff-
appellant.
*The Honorable Frank J. Magill, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
2205
2206           TURECEK v. COUNTY OF SAN DIEGO
C. Ellen Pilsecker, Senior Deputy, County of San Diego, San
Diego, California, for defendant-appellee.
ORDER
The appeal is dismissed for want of jurisdiction. The dis-
trict court record reveals that there was no case or controversy
between Karl A. Turecek (“Turecek”) and the County of San
Diego (“the County”) when the pleadings were before the dis-
trict court. The judgment of the district court, styled Citizens
for Honesty and Integrity in Regional Planning v. County of
San Diego and reported at
    258 F. Supp. 2d 1132 
    (S.D. Cal.
2003), must be vacated because no basis for federal jurisdic-
tion existed.
Turecek seeks a declaratory judgment that the definition of
“wetlands” employed by the local county Resource Protection
Ordinance (“RPO”) is preempted by the federal definition of
“wetlands” contained in the “Swampbuster” section of the
Food Security Act. RPO Art. II(16); 16 U.S.C. § 3801(a)(18).
The district court did not have jurisdiction to consider the pre-
emption question. First, there is no evidence in the record that
the County’s decision to deny Turecek’s land use permit
application was grounded in its refusal to follow the narrower
federal definition of wetlands rather than the broader local
definition of wetlands. Second, there is no threat of prosecu-
tion, imminent or otherwise, or evidence that the County
intends to employ the local definition against Turecek. See
generally Md. Cas. Co. v. Pac. Coal & Oil Co.,
    312 U.S. 270
    ,
273 (1941). Mere possibility of future local regulatory action
challenged as unconstitutional or in conflict with federal law
is not sufficient for declaratory judgment jurisdiction. Public
Serv. Comm’n of Utah v. Wycoff Co., Inc.,
    344 U.S. 237 
    (1952); Rincon Band of Mission Indians v. San Diego County,
    495 F.2d 1 
    (9th Cir. 1974); Alton Box Bd. Co. v. Esprit de
Corp.,
    682 F.2d 1267 
    (9th Cir. 1982). Third, there is nothing
TURECEK v. COUNTY OF SAN DIEGO            2207
to suggest that even if a new permit application were pending,
the wetlands definition would determine the success of that
application. A declaratory judgment plaintiff may not
“carve[ ] out” of the potential controversy a single federal
question whose answer will be declared by the federal courts
ahead of time. Calderon v. Ashmus,
    523 U.S. 740
    , 746 (1998).
DISMISSED and REMANDED with instructions to
VACATE the judgment.
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2005 Thomson/West.