FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SQUAW VALLEY DEVELOPMENT 

COMPANY; SQUAW VALLEY SKI

CORPORATION; SQUAW VALLEY No. 02-17346

PRESERVE, D.C. No.

Plaintiffs-Appellants,  CV 01-2031 WBS

v. ED Cal.

MARTIN GOLDBERG; HAROLD ORDER

SINGER,

Defendants-Appellees. 

Filed January 13, 2005

Before: A. Wallace Tashima and Richard R. Clifton,

Circuit Judges, and Ronald B. Leighton,* District Judge.

ORDER

Defendant-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 (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. 

*The Honorable Ronald B. Leighton, United States District Judge for

the Western District of Washington, sitting by designation. 

495
It is true, as Singer contends, that we stated in our opinion

that Squaw Valley “present[ed] 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 raised or

contested on Singer’s motion for summary judgment. Thus,

that statement was made in the context of demonstrating that

the record supports that Singer had a rational basis for his

exceptionally close scrutiny and oversight of Squaw Valley.

As we stated at the end of that part of our opinion, Part II.B

(Rational Basis):

In total, it is not enough to show that of the 800

dischargers regulated by the Lahontan Board, Singer

and Goldberg favored more formal enforcement

measures against Squaw Valley. As regulators, they

articulated a rational reason for their actions—they

perceived Squaw Valley to be a large and active discharger, with a history of non-compliance, that

resisted less severe regulatory efforts. Thus, to succeed on its equal protection claims, Squaw Valley

must show that Singer and Goldberg were motivated

by some personal or extra-statutory end. 

Id.

Singer never contended or argued in his brief that no other

dischargers under the jurisdiction of the Lahontan Board were

“similarly situated” to Squaw Valley. At least for purposes of

this appeal, Singer conceded the issue:

Singer and Goldberg concede that “Squaw Valley

has shown disparate or unique treatment” because

they “have afforded Squaw Valley more oversight

496 SQUAW VALLEY DEVELOPMENT v. GOLDBERG
. . . and have [favored] more formal regulatory and

enforcement action” as compared to other similarlysituated dischargers.

Id. at 944 (quoting Appellees’ Brief at 45) (emphasis added).1

Singer also did not contest the issue below. Thus, the issue is

foreclosed and cannot be raised for the first time in Singer’s

petition for rehearing. See Greenwood v. FAA, 28 F.3d 971,

977 (9th Cir. 2003) (“We review only issues which are argued

specifically and distinctly in a party’s opening brief.”) (citation omitted); Harik v. Cal. Teachers Ass’n, 326 F.3d 1042,

1052 (9th Cir. 2003) (noting that “we do not ordinarily consider on appeal issues not raised below”); Doi v. Halekulani

Corp., 276 F.3d 1131, 1140 (9th Cir. 2002). 

For the foregoing reasons, the panel has voted to deny

Singer’s petition for panel rehearing. Judge Clifton also votes

to deny the petition for rehearing en banc, and Judges

Tashima and Leighton so recommend. The full court has been

advised of the petition for rehearing en banc and no judge of

the court has requested a vote on en banc rehearing. See Fed.

R. App. P. 35(f). 

The petition for panel rehearing and the petition for rehearing en banc are denied.

1

See also Appellees’ Brief at 37 (“Where a suspect class is not at issue,

a plaintiff may still establish that a class-based distinction in enforcement

violates the Equal Protection Clause if he or she can show that officials

are using enforcement to obtain ends not contemplated by or consistent

with the law being enforced.”) (emphasis added) (citations omitted). 

SQUAW VALLEY DEVELOPMENT v. GOLDBERG 497
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