NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIERRA NEVADA TRANSPORTATION, No. 22-15823

INC.,

D.C. No. Plaintiff-Appellant, 3:21-cv-00358-LRH-CLB

v.

MEMORANDUM*

NEVADA TRANSPORTATION

AUTHORITY, Division of the Nevada Department of Business and Industry,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted June 6, 2023 San Francisco, California

Before: MILLER and KOH, Circuit Judges, and CHRISTENSEN, ** District Judge. Partial Concurrence and Partial Dissent by Judge KOH.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. Sierra Nevada Transportation, Inc. (SNT) appeals from the district court’s

dismissal of its action under 42 U.S.C. § 1983 against the Nevada Transportation

Authority (NTA). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We “review de novo an order granting a motion to dismiss for failure to state

a claim, ‘accept[ing] the complaint’s well-pleaded factual allegations as true, and

constru[ing] all inferences in the plaintiff’s favor.’” Bolden-Hardge v. Office of

Cal. State Controller, 63 F.4th 1215, 1220 (9th Cir. 2023) (quoting Koala v.

Khosla, 931 F.3d 887, 894 (9th Cir. 2019)). “[Q]uestions of standing are reviewed

de novo.” Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010).

1. SNT lacks standing to challenge the application of the NTA’s licensing

requirement to SNT’s transportation of airline crews. SNT seeks declaratory and

injunctive relief to bar the NTA from taking any future enforcement action against

SNT for transporting airline crews to and from Reno-Tahoe International Airport.

A party seeking prospective relief “has standing to sue where the threatened injury

is real, immediate, and direct.” Davis v. Federal Election Comm’n, 554 U.S. 724,

734 (2008); see also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). Thus,

to survive a motion to dismiss, SNT must plead “enough factual matter (taken as

true)” to raise a plausible inference that it faces a real and immediate threat of

injury going forward. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). SNT

has not pleaded such facts.

2 The NTA has stated, both before this court and the district court, that a

motor carrier’s prearranged transportation of airline crews in connection with their

work is exempt from the NTA’s licensing requirement. Notwithstanding that

authoritative statement of the agency’s enforcement policy, SNT alleges that on

one occasion the NTA did take enforcement action against SNT after it transported

an airline crew without a state-issued certificate of public convenience and

necessity. “[P]ast wrongs” such as this “do not in themselves amount to that real

and immediate threat of injury necessary to make out a case or controversy.”

Lyons, 461 U.S. at 103. Rather, we have identified “two ways in which a plaintiff

can demonstrate that . . . injury is likely to recur. First, a plaintiff may show that

the defendant had, at the time of the injury, a written policy, and that the injury

stems from that policy. Second, the plaintiff may demonstrate that the harm is part

of a pattern of officially sanctioned . . . behavior.” Mayfield, 599 F.3d at 971

(second alteration in original) (internal quotations and citations omitted). SNT has

made neither showing.

First, SNT has not identified a written policy under which the NTA

expressly claims authority to enforce its licensing requirement against motor

carriers engaged in the prearranged transportation of airline crews. The NTA did

send an email in July 2019 in which it stated that any motor carrier transporting

passengers between two locations in Nevada is subject to the NTA’s licensing

3 requirement, even where one of those locations is the airport. But the NTA has

explained that it construes that policy in accord with the District of Nevada’s 2009

decision in Brown’s Crew Car of Wyoming LLC v. Nevada Transportation

Authority, No. 2:08-cv-00777, 2009 WL 1240458, at *13 (D. Nev. May 1, 2009)

(holding that “rail-crew transportation services are wholly in interstate

commerce”).

SNT’s own amended complaint shows that the NTA has, consistent with its

representations to this court, interpreted its policy not to apply to the transportation

of airline crews. According to the complaint, on the one occasion in 2020 that SNT

was fined after transporting an airline crew, the NTA justified the fine on the

ground that “the flight crew was not in uniform and thus there was no way for the

NTA to know whether the passengers were actually pilots.” SNT alleges that

“proof was shown that the passengers were pilots.” But even accepting that

allegation as true, it shows, at most, that the NTA failed to honor its own

exemption on one occasion. It does not raise a plausible inference that the

exemption is a lie.

Nor is the NTA’s airline-crew exemption “a mere litigation position.” Lopez

v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010). The NTA appears to have

exempted airline crews from enforcement actions even at the time that it fined SNT

in 2020—hence the language in the complaint alleging that NTA “assert[ed] that

4 the flight crew was not in uniform and thus there was no way for the NTA to know

whether the passengers were actually pilots.” That language suggests that the

NTA’s official policy has been, at all relevant times (including at the time the

complaint was filed), to exempt the transportation of airline crews from its

licensing requirements.

Second, because SNT alleges only one instance in which it was fined after

transporting an airline crew, it has not shown that the harm it suffered was part of a

pattern of officially sanctioned behavior. Because SNT can show neither such a

pattern nor a written policy authorizing the conduct it complains of, SNT cannot

show the “real and immediate threat of injury necessary to make out a case or

controversy” with respect to its transportation of airline crews. Lyons, 461 U.S. at

103; see also Mayfield, 599 F.3d at 971.

2. We assume without deciding that SNT’s prearranged transportation of

out-of-state passengers from the Reno airport to destinations in Nevada and back

constitutes interstate commerce. Even so, SNT has failed to state a claim under the

Commerce Clause. “[T]he power to regulate commerce in some circumstances [is]

held by the States and Congress concurrently.” South Dakota v. Wayfair, Inc., 138

S. Ct. 2080, 2090 (2018); see also National Ass’n of Optometrists & Opticians v.

Harris, 682 F.3d 1144, 1148 (9th Cir. 2012). “[T]wo primary principles . . . mark

the boundaries of a State’s authority to regulate interstate commerce. First, state

5 regulations may not discriminate against interstate commerce; and second, States

may not impose undue burdens on interstate commerce.” Wayfair, 138 S. Ct. at

2090–91; see also National Pork Producers Council v. Ross, 6 F.4th 1021, 1026

(9th Cir. 2021), aff’d, 143 S. Ct. 1142 (2023).

SNT does not claim that the NTA’s licensing requirement is discriminatory,

and the requirement does not impose an undue burden on interstate commerce.

“Where [a] statute regulates even-handedly to effectuate a legitimate local public

interest, and its effects on interstate commerce are only incidental, it will be upheld

unless the burden imposed on such commerce is clearly excessive in relation to the

putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

Applying this test, we have held that the Commerce Clause generally does not

preempt state licensing requirements related to public safety. Kleenwell Biohazard

Waste & General Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 392, 398 (9th

Cir. 1995). The NTA’s licensing requirement is “state legislation in the field of

safety where the propriety of local regulation has long been recognized.” Pike, 397

U.S. at 143 (quoting Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761,

796 (1945) (Douglas, J., dissenting)); see Nev. Rev. Stat. § 706.391.

SNT argues that, under the Commerce Clause, a State cannot grant one

motor carrier an exclusive right to transport passengers to and from an airport. But

the NTA has granted no such exclusive right; it has merely established a licensing

6 requirement. SNT claims that the NTA “imposes difficult, costly, and time-

consuming hurdles to obtaining a certificate of public necessity and convenience.”

But “[t]he mere fact that a firm engaged in interstate commerce will face increased

costs as a result of complying with state regulations does not, on its own, suffice to

establish a substantial burden on interstate commerce.” Ross, 6 F.4th at 1032

(quoting Ward v. United Airlines, Inc., 986 F.3d 1234, 1241–42 (9th Cir. 2021)).

3. SNT challenges the district court’s refusal to grant SNT leave to amend its

complaint to name the individual members of the NTA Board of Commissioners as

defendants. Because amendment would be futile, the district court did not err. See

Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1046 (9th Cir. 2006).

AFFIRMED.

7

FILED

OCT 18 2023

Sierra Nevada Transportation, Inc. v. Nevada Transportation Authority, 22-15823

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

KOH, Circuit Judge, concurring in part and dissenting in part:

I concur in the majority’s conclusion that Sierra Nevada Transportation, Inc

(“SNT”) failed to plausibly allege that the Nevada Transportation Authority

(“NTA”) violated the Commerce Clause by applying state licensing requirements

to SNT’s prearranged transportation of out-of-state passengers. I respectfully

dissent, though, from the majority’s decision to deny SNT standing to challenge

the application of those requirements to the transportation of airline crews. In my

view, SNT has pleaded sufficient facts to establish standing at the motion to

dismiss stage.

As described in the operative complaint, SNT is a Nevada corporation,

domiciled in California. As relevant here, SNT provides transportation to and

from Nevada’s Reno-Tahoe International Airport (“the Airport”) to three types of

customers: (1) airline crews, who book through an out-of-state third party; (2) out-

of-state business and vacation travelers, who book through travel agents or other

third parties; and (3) customers who have directly booked SNT’s services for

prearranged trips. SNT is registered with the Federal Motor Carrier Safety

Administration and, in California, with the California Public Utilities Commission.

SNT alleges that the NTA had previously declined to “enforce its regulatory powers against companies providing prearranged ground transportation as one leg

of a continuous interstate trip.”

In July 2019, the NTA’s nonenforcement policy changed. The NTA set

forth its new policy in an email to companies that operated transportation services

from the Airport. The new policy, representing the “view of [the] agency” after

“lengthy internal discussions,” is unequivocal and without exception:

ANY land transportation which begins in Nevada (even if it is at the Airport) and terminates at another location in Nevada (even if THAT is at the airport) will be considered INTRAstate transportation (Point to point within Nevada)—subject to citation and the impoundment of the vehicle used for any non-certified carrier.

The NTA further explained that it “will immediately begin enforcing the Nevada

Statutes in the manner described—which is ANY point to point trips within

Nevada require certification from the Nevada Transportation Authority.”1

1 Indeed, the complaint alleges that the NTA enforced this policy against SNT or similar companies on at least three occasions between July 2019 and the filing of this lawsuit in September 2021. First, as discussed below, the NTA issued a citation to SNT for transporting an airline crew from the Airport to their hotel in July 2020. Second, in July 2021, the NTA detained SNT’s driver, impounded SNT’s vehicle, and issued SNT a citation for transporting an NBC employee on a prearranged trip from Lake Tahoe to the Airport without a certificate of public convenience and necessity. Third, in July 2021, the NTA detained the driver of a similar transportation company, impounded the company’s vehicle, and cited the company for transporting a passenger from Lake Tahoe to the Airport without a certificate of public necessity.

2 Although the majority must acknowledge the existence of this unequivocal

written position, the majority still confoundingly concludes that “SNT has not

identified a written policy under which the NTA expressly claims authority to

enforce its licensing requirement against motor carriers engaged in the prearranged

transportation of airlines crews.” The majority apparently reaches that conclusion

by relying on a so-called “exemption,” which is in fact the NTA’s representation to

this court and the district court that notwithstanding the plain and unequivocal

language of the written policy, the NTA “absolutely would not knowingly take

enforcement action relative to passenger transportation involving an airline crew.”2

The majority calls this an “authoritative statement of the agency’s enforcement

policy” but does not support this characterization with any legal authority or record

support.

Our case law makes clear that although an “enforcing authority[’s] express[]

interpret[ation] [of a] challenged law as not applying to the plaintiffs’ activities”

can show that plaintiffs lack standing, “the government’s disavowal must be more

than a mere litigation position.” Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir.

2010) (discussing pre-enforcement challenges); accord EQT Prod. Co. v. Wender,

2 The NTA contends that this position stems from the District of Nevada decision in Brown’s Crew Car of Wyo. LLC v. Nev. Transp. Auth., No. 2:08-cv-00777, 2009 WL 1240458 (D. Nev. May 1, 2009). However, the NTA’s 2019 written policy and its 2020 enforcement decision to apply that policy to SNT’s transportation of an airline crew both postdated the 2009 decision in Brown’s Crew Car.

3 870 F.3d 322, 331 (4th Cir. 2017) (“The County stipulated during this litigation

that it does “not intend for the Ordinance to apply” to storage at EQT’s

conventional wells, but again, the County’s litigation position cannot override the

plain text of the Ordinance when it comes to establishing a credible threat of

enforcement . . . for purposes of establishing standing.” (citation omitted)).

Further, finding that SNT lacks standing based on the NTA’s disavowal

contravenes the well-established principle that standing is determined at the time of

the filing of the complaint. See, e.g., Skaff v. Meridien N. Am. Beverly Hills, LLC,

506 F.3d 832, 838 (9th Cir. 2007).

When the complaint was filed, the NTA had a written policy providing that

it would regulate “ANY point to point trips within Nevada.” SNT has alleged that

it was cited pursuant to that policy for transporting an airline crew from the Airport

to their hotel in July 2020. The complaint alleges that even though “proof was

shown that the passengers were pilots” at the subsequent hearing, the NTA

“imposed a $1,000 fine” because “there was no way for the NTA to know whether

the passengers were actually pilots.” The majority’s discussion of that incident

shows its commitment to construing the facts in the NTA’s favor, notwithstanding

its recognition that the facts must be construed in the light most favorable to SNT

at the motion to dismiss stage. The majority impermissibly draws inferences in

favor of the NTA by casting the July 2020 citation as an indication that the NTA

4 did not intend to cite companies for transporting airline crews. Properly viewed in

the light favorable to SNT, however, these facts show that the NTA not only had a

written policy plainly covering transportation of airline crews; it also knowingly

applied that policy to the transportation of airline crews.

Nothing in the record shows that the enforcement policy changed between

July 2020 and the filing of the complaint. An “ongoing policy coupled with [the

plaintiff’s] past injury establishes a ‘real and immediate threat’ of [the plaintiff’s]

injury occurring again,” sufficient to confer standing. Fortyune v. Am. Multi-

Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004); see also Bates v. United Parcel

Serv., Inc., 511 F.3d 974, 986 (9th Cir. 2007) (“Where, as here, ‘the harm alleged

is directly traceable to a written policy . . . there is an implicit likelihood of its

repetition in the immediate future.’” (quoting Armstrong v. Davis, 275 F.3d 849,

861 (9th Cir. 2001))).

By reaching the merits, the majority implicitly recognizes that SNT has

standing to pursue prospective relief related to other classes of out-of-state

passengers even in the absence of a “pattern of officially sanctioned behavior.”

See Mayfield v. United States, 599 F.3d 964, 971 (9th Cir. 2010). The only

differences between those classes and the airline crews are the lack of any

enforcement as to one of those classes (those who book directly with SNT) and the

NTA’s representation in this litigation that it will not enforce its policy against

5 airline crews. Thus, the majority credits the moving party’s litigation position over

a written policy clearly covering the challenged action, coupled with an actual

history of past enforcement. Because the complaint plausibly alleges that the NTA

is fining transportation companies for transporting airline crews, and the NTA

acknowledges that it cannot do so under the Interstate Commerce Clause, I would

remand for the district to court to grant injunctive and declaratory relief as to the

transportation of airline crews.

6