Squaw Valley Development Company Squaw Valley Ski Corporation Squaw Valley Preserve v. Martin Goldberg Harold Singer

ORDER

Defendanb-Appellee Harold Singer petitions for panel rehearing and for rehearing en banc. He argues, inter alia, that our decision permitting Squaw Valley to proceed on its “class of one” claim against Singer, see Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944-48 (9th Cir.2004) (“ Squaw Valley I”), conflicts with Village of Willowbrook v. Olech, 528 U.S. 562, 564 , 120 S.Ct. 1073 , 145 L.Ed.2d 1060 (2000), because Squaw Valley “failed to establish that any other dischargers that were treated differently were ‘similarly situated’ ” to Squaw Valley. We reject the argument because it is made for the first time in Singer’s petition for rehearing.

It is true, as Singer contends, that we stated in our opinion that Squaw Valley “presented] no evidence that any other discharger is of comparable size, has a comparable history of non-compliance, engages in a comparable level of activity on its land, and has a comparable history of administrative action being ineffective. As the district court repeatedly stated, Squaw Valley is not comparing ‘apples to apples.’” Squaw Valley I, 375 F.3d at 945 . But the reason that no such evidence was presented was because the issue was not…