NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIERRA NEVADA TRANSPORTATION, 

INC., 

Plaintiff-Appellant, 

 v. 

NEVADA TRANSPORTATION 

AUTHORITY, Division of the Nevada 

Department of Business and Industry, 

Defendant-Appellee.

No. 22-15823 

D.C. No. 

3:21-cv-00358-LRH-CLB 

MEMORANDUM*

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.

FILED

OCT 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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.
3 

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 
4 

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 
5 

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 
6 

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 
7 

requirement. SNT claims that the NTA “imposes difficult, costly, and timeconsuming 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.
Sierra Nevada Transportation, Inc. v. Nevada Transportation Authority, 22-15823

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) outof-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 

FILED

OCT 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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.
3 

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.
4 

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 
5 

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. MultiCinema, 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 
6 

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.