FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLAN GERHART, 

Plaintiff-Appellant,

v. No. 10-35183

LAKE COUNTY MONTANA; LAKE D.C. No.

COUNTY COMMISSIONERS MIKE  9:09-cv-00008-JCL

HUTCHIN, PADDY TRUSLER, and OPINION CHUCK WHITSON, in their

individual and official capacities,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Montana

Jeremiah C. Lynch, Magistrate Judge, Presiding

Argued and Submitted

December 10, 2010—Seattle, Washington

Filed March 18, 2011

Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

3719
COUNSEL

Bruce A. Fredrickson (argued) and Angela M. LeDuc, Kalvig

& LeDuc, PC, Kalispell, Montana, for plaintiff-appellant

Allan Gerhart.

Dee Ann Cooney (argued), Cooney Law Firm, Helena, Montana, and Michael William Sehestedt, MACo Legal Services,

Helena, Montana, for defendants-appellees Lake County,

Montana, Mike Hutchin, Paddy Trusler, and Chuck Whitson.

OPINION

PAEZ, Circuit Judge:

Plaintiff-appellant Allan Gerhart is a property owner and

resident of Lake County, Montana. In 2007, Gerhart built an

GERHART v. LAKE COUNTY MONTANA 3723
approach to Juniper Shores Lane, a county road that borders

his property. Around the time Gerhart constructed his

approach, he was informed by a County employee that the

County requires permits for road approaches. Gerhart filed an

approach permit application, which was denied by the County

Commissioners. This denial was remarkable because, according to Gerhart’s undisputed testimony, at least ten other property owners on his block previously built un-permitted

approaches to Juniper Shores Lane, all without consequence.

Moreover, the deposition testimony of the County Commissioners indicated that outright denial of an approach permit

application was rare, if not unprecedented. 

After the Commissioners denied Gerhart’s permit application, he brought suit under 42 U.S.C. § 1983, alleging that the

County and the individual Commissioners violated his due

process and equal protection rights. The district court granted

summary judgment to Defendants after concluding that Gerhart could not establish a constitutional violation.

We affirm the district court’s grant of summary judgment

to the County. We also affirm the district court’s grant of

summary judgment to the individual Commissioners on Gerhart’s due process claims, but reverse the district court’s grant

of summary judgment to the individual Commissioners on

Gerhart’s equal protection claim. As to that claim, we conclude that on the basis of the summary judgment record, a reasonable trier of fact could find that the Commissioners

violated Gerhart’s equal protection rights and that the Commissioners are not entitled to qualified immunity.

I. BACKGROUND

The facts presented in this section are culled from the deposition testimony of Gerhart; the three Lake County Commissioners who denied Gerhart’s permit application; Larry Ehle,

the Road Superintendent of the County; Kurt Moser, an attor3724 GERHART v. LAKE COUNTY MONTANA
ney for the County; and Terrance Murphy, a sanitarian for the

County.

A. Gerhart’s Approach Permit Application

Around 1996, Gerhart purchased lakefront property in the

Juniper Shores subdivision in Lake County, Montana. Gerhart’s property is bordered by Juniper Shores Lane on the

northwest. In late 1999, Gerhart began building a house on his

property. Gerhart’s “legal access” to the property is a platted

community lane that does not actually reach Gerhart’s house.

To gain access to his building site, Gerhart initially obtained

an easement from his neighbors, the Daues, in 1999. Gerhart,

however, alleges that this easement eventually became unsuitable because it was often blocked by equipment for the

Daues’ construction projects. After multiple instances of

being unable to use the easement, Gerhart built his own

access road and approach1 that stretches from his house to

Juniper Shores Lane. Gerhart testified that, as a contractor, he

was able to construct the access road around the drainfield2 on

his property. It is undisputed that having reliable access to

1The term “approach” is not defined in the County’s permit application,

nor was it defined by the parties in their briefing. The context in which the

term is used in the materials for this case suggests that it refers to the portion of a road or driveway that abuts a road and is contained on the public

right-of-way. We also note that MONT. ADMIN. R. 18.5.103 similarly

defines “approach” as “that section of the highway right-of-way between

the outside edge of shoulder and the right-of-way line which is designed

as a highway for the movement of vehicles between the highway and the

abutting property.” 

2The term “drainfield” is not defined in the Lake County Wastewater

Treatment System Regulations, nor is it defined in Webster’s dictionary.

The Montana Supreme Court has explained that when “sewage disposal

needs of the community are met by the use of individually owned and constructed drainage systems,” the liquid sewage waste is “piped into underground drainfields and treated by a ‘leaching’ process where [the liquid

waste] pass[es] through the soil surrounding the drain field.” Lincoln/Lewis & Clark Cnty. Sewer Dist. v. Bossing, 696 P.2d 989, 990

(Mont. 1985). 

GERHART v. LAKE COUNTY MONTANA 3725
Gerhart’s house would increase the property’s value by several hundred thousand dollars.

Unrelatedly, at some point around 2005, Gerhart was

involved in a “neighborhood feud” with the Gobles, who

owned property a few lots away from Gerhart on Juniper

Shores Lane. According to Terrance Murphy, a sanitarian for

the County, the Gobles (and others) complained to him that

Gerhart had covered the drainfield with his access road.

A few days after finishing the access road and approach,

Gerhart was contacted by Larry Ehle, the Road Superintendent of the County. Ehle told Gerhart that the County requires

a permit for building an approach to a county road, a fact then

unknown to Gerhart. Ehle also revealed that one of the Gobles

had made the complaint that prompted Ehle to request a permit from Gerhart. Gerhart promptly filled out and returned the

permit application. Gerhart also discovered that none of his

neighbors in the Juniper Shores subdivision had received permits for their approaches. Gerhart alleges that since 1994 (the

year the County began requiring approach permits), at least

ten other lots on his block have constructed approaches to

Juniper Shores Lane without a permit.

Gerhart testified that a few days after submitting his permit

application, he received a phone message from Ehle saying,

“I see the approach. It looks good. In fact, it looks better than

any other approach on Juniper Shores Lane.” Gerhart understood this message to mean that his permit application had

been approved. Ehle did not tell Gerhart that the permit also

had to be approved by the Commissioners, although the application form included blank spaces for the Commissioners’

signatures. Nor did Ehle instruct Gerhart to stop construction

on the approach.

Shortly after viewing Gerhart’s approach, Ehle signed Gerhart’s application and forwarded it to County Commissioners

Mike Hutchins, Paddy Trusler, and Chuck Whitson for

3726 GERHART v. LAKE COUNTY MONTANA
approval. Ehle’s signature indicated his approval of Gerhart’s

approach.

A few months later, in late 2007 or early 2008, Commissioner Trusler instructed Ehle that Gerhart’s permit application was to be put on hold. Ehle testified at his deposition that

he was surprised by this instruction, stating, “it raises the eyebrow and you kind of wonder what . . . is going on there . . . .

That seemed to be a little out of the usual to me.” Commissioners Hutchin and Whitson both testified that they did not

remember why Gerhart’s permit application was put on hold.3

Only Commissioner Trusler testified about the purported reasons for placing Gerhart’s application on hold. Specifically,

Commissioner Trusler stated that the Commissioners had concerns about (1) the steepness of Gerhart’s approach, and (2)

the fact that Gerhart had constructed his approach without

first obtaining a permit. Commissioner Trusler also testified

that “there was a strong belief that the road that was already

there crossed the drainfield.” According to Commissioner

Trusler, his concerns about Gerhart’s drainfield were based on

his personal knowledge of the Juniper Shores area and its topography.4

 Although Commissioner Trusler testified that he had

3

In his deposition, Commissioner Whitson testified as follows: 

Q (Babington): The commissioners took a different view [from

Ehle]. And what I’m trying to find [out] is why did they take a

different view than what Mr. Ehle recommended to the commissioners 

A (Whitson): You know, I can’t answer that. I don’t remember.

Similarly, Commissioner Hutchin testified: 

Q (Babington): And Mr. Ehle testified that he was told to put

[Gerhart’s application] on hold. 

A (Hutchin): May have been, I don’t know. 

Q: Why? 

A: I don’t know. 

4Before becoming a Commissioner, Trusler had previously worked for

22 years as Director of Lake County Land Services, which oversees the

County’s planning, sanitation, and solid waste disposal operations. 

GERHART v. LAKE COUNTY MONTANA 3727
concerns about Gerhart’s drainfield from the beginning, neither of the other Commissioners nor Ehle remembers Commissioner Trusler voicing these concerns until several months

later, after the Commissioners decided to deny Gerhart’s

application. 

In May 2008, the Commissioners, Ehle, and Deputy

County Attorney Kurt Moser met to discuss Gerhart’s application, and decided that Ehle would send a letter to Gerhart

stating that the permit was denied. Roughly one month later,

Gerhart received the letter, which did not contain any explanation for the denial. Around the same time, Moser and Murphy (the County sanitarian who responded to the Gobles’

complaints about Gerhart’s drainfield) exchanged emails

about whether Gerhart’s private road might cross his drainfield. In an email, Moser told Murphy that he spoke with one

of the Gobles about Gerhart’s drainfield and asked if the Lake

County Environmental Health Department had taken any

action against Gerhart. The next day Murphy responded to

Moser, 

If the [C]ounty has other issues then lets [sic] team

up and make it worth our while. I have a long history

with Mr. Gerhart; to say that he is smooth (to the

point of being slimy) is an understatement. Believe

nothing that comes out of his mouth. If we take him

on it will be quite an ordeal and burn up a lot of

time. 

Moser then asked Murphy to “put together a report with a list

of facts detailing [Gerhart’s] specific violations (Including

how you know what you know).” Moser also suggested to

Murphy that “[i]f [Gerhart] fails to remove the encroachment

. . . then it would make sense to file everything at the same

time.” Gerhart confirmed that his previous interactions with

Murphy had been unfriendly, and that Murphy had made it

difficult for him to work in the County. Besides his history

3728 GERHART v. LAKE COUNTY MONTANA
with Murphy, Gerhart also testified that he had difficulty in

dealing with other County planning and sanitation employees.5

B. Lake County’s Approach Permitting Process

Lake County does not have a formal process for a property

owner who, like Gerhart, wishes to construct an approach to

a county road. In 1994, the Commissioners began requiring

approach permits. As Gerhart points out, “[t]here are no written or documented rules, regulations, laws, or ordinances that

exist in Lake County or in Montana that put property owners

on notice that the [County’s permit process] exists. The only

tangible evidence of the County’s Permit process is the Permit

application document itself.” Furthermore, the County often

turns a blind eye to a property owner who builds an approach

without a permit.6 An affidavit in support of Gerhart’s position states that most property owners on Juniper Shores Lane

have added approaches to the road, all without submitting permit applications to the County.

Nor is there any documented process or guidance for the

Commissioners to follow in deciding whether to grant an

approach permit once an application is submitted. Still, the

5As just one example among many, Gerhart testified that he had a project that was previously stalled by County employees for fourteen months.

According to Gerhart’s client, the County employees who held up the

project made veiled comments that Gerhart was the reason for the delay.

6For example, Gerhart testified about the following exchange that

occurred shortly after the County denied his permit application: 

Noel (a neighbor) was doing some site work for landscapers and

one of the neighbors complained about rocks on the County’s

approach. And Larry Ehle came out, stood on Noel’s brand new

approach that he built and proceeded to tell him that maybe a

couple of rocks needed to be moved. And, of course, afterwards

I looked at Noel and I said, “Well, Noel, did you apply for a permit for this approach?” And Ehle was standing right there. You

could see it’s a brand new road. And he just laughed and said,

“No.” 

GERHART v. LAKE COUNTY MONTANA 3729
Commissioners and Ehle all testified about their routine practice for responding to approach permit applications. The general practice is for Ehle to investigate the approach. If the

approach has any problems, then Ehle typically works with

the applicant to address them. After Ehle signs off on an

application, he forwards it to the Commissioners. If two of the

three Commissioners sign the permit, it is granted.

The Commissioners rarely disagree with Ehle’s recommendation of how to handle a permit application. In fact, the testimony of the Commissioners and Ehle indicates that outright

denial of an approach permit application is incredibly uncommon. Commissioner Hutchin could remember only three permit applications (including Gerhart’s) that were denied in the

24 years that he was a Commissioner. Commissioner Whitson

could not remember any permit applications other than Gerhart’s that were denied while he was a Commissioner. Nor

could Commissioner Trusler recall ever denying a permit after

the permit was “given back to the road superintendent to work

out some particular issues.” Finally, Ehle has considered over

one thousand permit applications, none of which have ever

been denied.

C. Procedural History

On June 12, 2008, Gerhart received written notification that

his permit application was denied. A few weeks later, Gerhart’s attorney sent a letter to the County, complaining that

other similarly situated property owners on Juniper Shores

Lane had built approaches without obtaining permits. In

response, the Commissioners sent a letter to Gerhart that for

the first time elaborated their reasons for denying his permit.

In particular, the Commissioners stated that the reasons for

denying Gerhart’s application were: (1) the fact that Gerhart

had alternate driveway access to his property; and (2) the fact

that adding an additional approach to Juniper Shores Lane

was unsafe. Relatedly, the Commissioners alerted Gerhart that

if his driveway crossed over the drainfield (which they indi3730 GERHART v. LAKE COUNTY MONTANA
cated it “may”), he must stop using the driveway and consult

with the Lake County Environmental Health Department.

In January 2009, after the parties were unable to resolve the

dispute, Gerhart filed this section 1983 case in federal district

court, claiming that the County and the individual Commissioners violated his due process and equal protection rights.

Defendants moved for summary judgment. In support of their

summary judgment motion, the individual Commissioners

argued that they were entitled to qualified immunity on Gerhart’s due process claims and that Gerhart had not made out

an equal protection violation.7 The County argued that it was

entitled to summary judgment because Gerhart had not

alleged a County policy that resulted in a constitutional violation and therefore could not maintain a claim under Monell v.

Department of Social Services, 436 U.S. 658 (1978). After

concluding that Gerhart could not establish a constitutional

violation, the district court granted Defendants’ motion for

summary judgment on the federal claims and declined to

exercise supplemental jurisdiction over Gerhart’s state law

claims, pursuant to 28 U.S.C. § 1367(c)(3). Gerhart timely

appealed.

II. ANALYSIS

We review de novo the district court’s grant of summary

7Summary judgment on the ground of qualified immunity for the individual Commissioners is appropriate if (1) viewing the evidence in the

light most favorable to Gerhart, the Commissioners’ conduct did not

amount to a constitutional violation, or (2) in the alternative, Gerhart’s

constitutional rights were not “clearly established at the time of the violation.” Bull v. City and Cnty. of S.F., 595 F.3d 964, 971 (9th Cir. 2010) (en

banc) (internal quotation marks omitted); see also Saucier v. Katz, 533

U.S. 194, 201 (2001). Because the district court determined that Gerhart

could not establish a constitutional violation, it ruled that the individual

Commissioners were entitled to summary judgment under the first prong.

As a result, the court did not address the second prong of the qualified

immunity analysis. 

GERHART v. LAKE COUNTY MONTANA 3731
judgment in favor of Defendants. See Braswell v. Shoreline

Fire Dep’t, 622 F.3d 1099, 1100 (9th Cir. 2010). Summary

judgment for Defendants is appropriate if “there is no genuine

issue of material fact and [Defendants are] entitled to judgment as a matter of law.” Orloff v. Cleland, 708 F.2d 372, 375

(9th Cir. 1983). 

A. Gerhart’s Due Process Claims

[1] Gerhart alleges both procedural and substantive due

process violations resulting from the denial of his permit

application. To succeed on either claim, Gerhart must first

demonstrate that he was deprived of a constitutionally protected property interest. See Shanks v. Dressel, 540 F.3d 1082,

1087 (9th Cir. 2008) (substantive due process); Foss v. Nat’l

Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)

(procedural due process). We hold that Gerhart cannot make

this threshold showing, and affirm the district court’s grant of

summary judgment to Defendants on Gerhart’s due process

claims.

[2] In some instances, a person can have a constitutionally

protected property interest in a government benefit, such as a

license or permit. Bd. of Regents of State Colls. v. Roth, 408

U.S. 564, 577 (1972); see also Groten v. California, 251 F.3d

844, 850 (9th Cir. 2001) (holding that plaintiff had a protected

property right to a temporary appraiser’s license). To have a

property interest in a government benefit, “a person clearly

must have more than an abstract need or desire for [the benefit]. He must have more than a unilateral expectation of it. He

must, instead have a legitimate claim of entitlement to it.”

Roth, 408 U.S. at 577 (emphasis added). Furthermore, a property interest must “stem from an independent source such as

state law—rules or understandings that secure certain benefits

and that support claims of entitlement to those benefits.” Id.

[3] Along the same lines, we have held that state law

creates a “legitimate claim of entitlement” when it “imposes

3732 GERHART v. LAKE COUNTY MONTANA
significant limitations on the discretion of the decision

maker.” Braswell, 622 F.3d at 1102 (internal quotation marks

and alterations omitted). For example, we have held that such

an entitlement to a government permit exists when a state law

or regulation requires that the permit be issued once certain

requirements are satisfied. See, e.g., Groten, 251 F.3d at 850

(holding that a protected property right to a license existed

where both federal and state law entitled the applicant to a

license whenever certain statutory requirements were met);

Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988) (holding that a builder had a property interest in a building permit

where city regulations provided that once an applicant met

certain requirements, a permit must be issued). 

[4] Here, Montana law does not impose any limitations on

the Commissioners’ discretion to permit approaches to county

roads. Instead, Montana Code Annotated section 7-14-2102

simply provides, “[e]ach board of county commissioners may

in its discretion do whatever may be necessary for the best

interest of the county roads and the road districts.” Clearly,

state law does not constrain the Commissioners’ discretion to

grant or deny approach permit applications.

[5] Our analysis does not end here, however, because Gerhart does not argue that his legitimate claim of entitlement to

an approach permit is grounded in Montana law. Instead, Gerhart argues that the policies and practices of the County Commissioners have created such an entitlement. The Supreme

Court has long recognized the existence of constitutionally

protected property interests where a governmental body

employs policies and practices that create a legitimate claim

of entitlement to a government benefit. See Perry v. Sindermann, 408 U.S. 593, 601 (1972) (holding that a protected

property interest exists where there are “rules or mutually

explicit understandings that support [a plaintiff’s] claim of

entitlement to the benefit”). For example, the plaintiff in

Perry, a non-tenured junior faculty member at a state university, argued that he had a protected property interest in his job

GERHART v. LAKE COUNTY MONTANA 3733
in light of his employer’s “de facto tenure program” for which

he qualified. Id. at 600. The Court sided with Perry, writing,

“[Perry] must be given an opportunity to prove the legitimacy

of his claim of such entitlement in light of the policies and

practices of the institution.” Id. at 603 (internal quotation

marks omitted). Similarly, in Orloff, 708 F.2d at 377, we held

that “[d]espite the apparent expiration date of [the plaintiff’s

employment] contract, there may have arisen an understanding of continued employment based on prior treatment of [the

plaintiff] or other . . . employees sufficient to constitute a de

facto property interest.” 

[6] Gerhart argues that, like the professor in Perry and the

plaintiff in Orloff, the Commissioners’ policies and practices

created a system for granting approach permits that endowed

Gerhart with a claim of entitlement. We are not persuaded by

this argument. Critically, unlike the professor in Perry and the

plaintiff in Orloff, Gerhart did not have an ongoing or informal agreement with the County. Although Gerhart has sympathetically alleged that he believed his permit application was

approved, he has not alleged a mutual understanding with the

Commissioners. There is simply no evidence that the County

ever entered into an agreement with Gerhart that he could

construct an approach to Juniper Shores Lane. Despite Ehle’s

apparent approval of Gerhart’s approach, there is no evidence

that the Commissioners shared this view.

[7] A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not

create a property right if that belief is not mutually held by the

government. The Supreme Court has explained, “[a] constitutional entitlement cannot be created—as if by estoppel—

merely because a wholly and expressly discretionary state

privilege has been granted generously in the past.” Conn. Bd.

of Pardons v. Dumschat, 452 U.S. 458, 465 (1981); accord

Leis v. Flynt, 439 U.S. 438, 443 (1979) (concluding that no

property right to appear pro hac vice in Ohio court existed

because the plaintiff’s counsel did not demonstrate “the requi3734 GERHART v. LAKE COUNTY MONTANA
site mutual understanding that they would be permitted to

[appear pro hac vice].”). We have similarly held that a government body’s past practice of granting a government benefit

is insufficient to establish a legal entitlement to the benefit.

See, e.g., Cassidy v. Hawaii, 915 F.2d 528, 531 (9th Cir.

1990) (rejecting the argument that because the government

body “generally renews permits, . . . this custom created an

understanding that would justify a legal entitlement”);

Punikaia v. Clark, 720 F.2d 564, 570 (9th Cir. 1983) (holding

that a state’s continuous operation of a nursing home was not

the type of “custom” or “regularity of performance” that

would create a legitimate entitlement (internal quotation

marks omitted)). Similarly here, Gerhart’s claim of entitlement is grounded in the County’s past practice of leniently

granting approach permits, without any evidence or allegation

of a mutual understanding that he was otherwise entitled to a

permit. Accordingly, we conclude that there is no genuine

issue of material fact, and Gerhart does not have a protected

property interest in an approach permit.

[8] Gerhart’s remaining arguments are unavailing. Gerhart

argues that the Commissioners limited their own discretion by

placing Ehle in charge of administering approach permits.

Specifically, Gerhart claims that the Commissioners vested

Ehle with the authority to approve permit applications, and

that Ehle and Gerhart shared a mutual understanding that Gerhart’s application was approved. Crucially, though, neither

Ehle nor the Commissioners testified at their depositions that

Ehle had the authority to approve approach permit applications. On the contrary, all of the Commissioners and Ehle testified that the decision to approve or deny a permit application

was left to the Commissioners’ discretion. Therefore, there is

no record evidence that Ehle’s participation in the permitting

process limited the Commissioners’ discretion or created a

legitimate claim of entitlement for Gerhart. We therefore

affirm the district court’s grant of summary judgment to

Defendants on Gerhart’s due process claims.

GERHART v. LAKE COUNTY MONTANA 3735
B. Gerhart’s Equal Protection Claim

[9] Gerhart also claims that in denying his approach permit

application, the Commissioners violated the Equal Protection

Clause of the Fourteenth Amendment.8 The Equal Protection

Clause guarantees, “No state shall . . . deny to any person

within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. Gerhart’s equal protection claim is

a “class of one claim,” which alleges that the Commissioners

intentionally treated him differently from other similarly situated permit applicants. The Supreme Court has recognized

that “an equal protection claim can in some circumstances be

sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally

singled out as a so-called ‘class of one.’ ” Engquist v. Or.

Dep’t of Agric., 553 U.S. 591, 601 (2008) (citing Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam)). 

[10] To succeed on his “class of one” claim, Gerhart must

demonstrate that the Commissioners: (1) intentionally (2)

treated Gerhart differently than other similarly situated property owners, (3) without a rational basis. Willowbrook, 528

U.S. at 564; North Pacifica LLC v. City of Pacifica, 526 F.3d

478, 486 (9th Cir. 2008). Although Gerhart must show that

the Commissioners’ decision was intentional, he need not

show that the Commissioners were motivated by subjective ill

will. Willowbrook, 528 U.S. at 565 (rejecting the interpretation that a plaintiff must allege that the governmental action

was the result of subjective ill will in a “class of one” claim).

8

It appears that Gerhart’s claim against the County was grounded on the

Commissioners’ alleged violation of Gerhart’s due process rights. Because

we have determined that Gerhart has not made out a violation of his due

process rights, his claim against the County does not survive. To the extent

that Gerhart’s claim against the County derives from an equal protection

violation, Gerhart has not offered any argument to support this theory so

we consider it waived. See Crawford v. Lungren, 96 F.3d 380, 389 n.6

(9th Cir. 1996). 

3736 GERHART v. LAKE COUNTY MONTANA
The district court erred in holding that no genuine issues of

material fact existed and that Gerhart’s “class of one” claim

failed as a matter of law.

1. Unique Treatment

[11] Gerhart presented considerable evidence that he was

treated differently than other similarly situated property owners throughout the permit application process. Specifically,

Gerhart’s uncontradicted testimony was that at least ten other

property owners on his block have built approaches to Juniper

Shores Lane of which the Commissioners are aware, but for

which the Commissioners have not required approach permits. This evidence strongly suggests that Gerhart was singled

out when he was told to apply for an approach permit.

[12] The evidence also suggests that Gerhart was treated

differently than other permit applicants after his application

was submitted. The usual practice for dealing with concerns

about an approach was for Ehle to work with the applicant to

address the problem. With Gerhart’s application, however, the

Commissioners did not follow this usual procedure; instead

Gerhart’s application was put “on hold.” The eventual denial

of Gerhart’s permit application was also an outlying occurrence, as described above.

2. Intentional Treatment by the Commissioners

In the district court’s view, the evidence unambiguously

demonstrated that the Commissioners at worst accidentally

discriminated against Gerhart in denying his approach permit

application. In particular, the district court rejected the possibility that Gerhart’s difficult history with the County and the

complaints lodged against him by neighbors could have influenced the Commissioners’ treatment of his application. 

[13] This approach was erroneous. By looking for evidence of the Commissioners’ personal animosity towards

GERHART v. LAKE COUNTY MONTANA 3737
Gerhart, the district court incorrectly analyzed Gerhart’s

“class of one” claim, which does not require a showing of the

government officials’ subjective bad feelings towards him.

Gerhart does not need to demonstrate that the Commissioners

harbored ill will towards him in order to meet the “intent”

requirement of his “class of one” claim. Willowbrook, 528

U.S. at 565. Instead, Gerhart must show that the Commissioners intended to treat him differently from other applicants.

Viewing this evidence in the light most favorable to Gerhart,

as we must, we conclude there are triable issues of fact on this

question. 

[14] For one thing, a reasonable factfinder could find that

the Commissioners were aware that their treatment of Gerhart’s permit application was anomalous because all three

Commissioners testified that their ordinary practice of handling permit applications rarely, if ever, included denying

applications. Also relevant to the Commissioners’ intent is

evidence that Commissioner Trusler—the person who initially

directed Ehle to put Gerhart’s application on hold—spoke to

one of the Gobles about Gerhart’s approach. This evidence

suggests that the Commissioners were aware of complaints

against Gerhart and might have intentionally singled him out.

Additionally, Gerhart presented evidence that Murphy

shared his negative views about Gerhart with Moser around

the time that Moser directed Ehle to notify Gerhart that his

permit application was denied. This evidence suggests that

Murphy’s past experiences with Gerhart might have influenced the denial of Gerhart’s application. 

[15] Finally, Gerhart alleged a continuous history of

harassment by County employees from the planning and sanitation departments, which were headed by Commissioner

Trusler for more than two decades before he became a Commissioner. In one instance, a sanitation conflict between Gerhart and Murphy escalated to the point that Commissioner

Trusler became involved. In light of this previous dispute, a

3738 GERHART v. LAKE COUNTY MONTANA
factfinder could find that Trusler had a reason to single out

Gerhart.

3. Rational Basis

[16] The district court also made a crucial error in its analysis of the rational basis requirement of Gerhart’s “class of

one” claim. Specifically, the district court analyzed whether

there was a rational basis for denying Gerhart’s application,

when it should have analyzed whether there was a rational

basis for treating Gerhart differently. Willowbrook, 528 U.S.

at 564 (explaining that a class of one claim requires plaintiff

to show that “there is no rational basis for the difference in

treatment”). We have recognized that the rational basis prong

of a “class of one” claim turns on whether there is a rational

basis for the distinction, rather than the underlying government action.

9

 For example, in SeaRiver Maritime Financial

Holdings, Inc. v. Mineta, 309 F.3d 662 (9th Cir. 2002), we

considered the constitutionality of a federal law that excluded

a single oil tanker from the waters of Prince William Sound,

Alaska. In rejecting the “class of one” claim brought by the

owners and operator of the tanker, we held that it was reasonable for Congress to “single out” the tanker, which had previously spilled eleven million gallons of oil into the Sound. Id.

at 680. We explained that it was “also rational for Congress

to use this past disaster as a measure of future performance to

specifically bar the [tanker] from transporting oil through [the

Sound].” Id. (emphasis added). Thus, the rational basis prong

of Willowbrook requires that we determine whether the Commissioners had a rational basis for singling out Gerhart. 

9This principle applies in all Equal Protection claims in which there

must be a rational basis for differential treatment. See, e.g., Lazy Y Ranch

Ltd. v. Behrens, 546 F.3d 580, 590 (9th Cir. 2008) (“Similar to [Willowbrook], the question here is not simply whether administrative costs were

a rational reason for denying Lazy Y’s bid [to lease certain land from the

Idaho State Board of Land Commissioners] . . . . The real question is

whether there is a rational basis for this distinction.”) (emphasis added)).

GERHART v. LAKE COUNTY MONTANA 3739
We conclude that there is a genuine issue of material fact

as to whether the Commissioners had a rational basis for treating Gerhart differently from similarly situated property owners. When the Commissioners eventually disclosed their

reasons for denying Gerhart’s application, they explicitly

stated that the denial was based on an (unconfirmed) belief

that Gerhart had alternate access to the property, and a safety

concern that adding an additional approach to Juniper Shores

Lane would create a safety risk.10 Neither of these reasons is

sufficient to affirm the grant of summary judgment in favor

of the Commissioners.

[17] First, although the Commissioners stated in their

denial letter that they believed Gerhart had alternate access to

his property, Gerhart claims that this alternate access is not

reliable. Gerhart also claims that other property owners on

Juniper Shores Lane have constructed approaches to the lane

despite having alternate access.

[18] Second, as to the Commissioners’ safety concern,

Gerhart testified that at least ten of his neighbors have

approaches to Juniper Shores Lane. Even if the Commissioners might have rationally feared that too many approaches

would hinder safety of the lane, it may not be rational to

require Gerhart to bear this burden alone. See Del Monte

Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,

1509 (9th Cir. 1990) (“Although the objective of preserving

a habitat for [a certain species of butterfly] is rational, it may

not be rational to single out [plaintiff’s property] to provide

it.”). The district court thus erred in concluding that no genuine issues of material fact existed and that the individual

Commissioners were entitled to summary judgment on Gerhart’s equal protection claim.

10The denial letter also mentioned as a “related matter” the Commissioners’ concern that Gerhart’s driveway “may have been installed over

the top of his existing septic system drainfield.” Contrary to the district

court’s analysis, the possible drainfield problem was not given as a reason

for denying Gerhart’s application. 

3740 GERHART v. LAKE COUNTY MONTANA
C. Qualified Immunity for the Individual Defendants

[19] Qualified immunity shields the individual Commissioners from liability “insofar as their conduct d[id] not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). As we noted above, to

determine whether the individual Commissioners are entitled

to qualified immunity, we ask (1) whether the plaintiff has

“ma[de] out a violation of a constitutional right”; and (2)

“whether the right at issue was ‘clearly established’ at the

time of defendant[s’] alleged misconduct.” Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (citing Saucier, 533 U.S. at

201). We can consider the two questions in any order, and if

we answer either question in the negative, the individual

Commissioners are entitled to qualified immunity. Id. at 818.

Although there are genuine triable issues of fact as to the

merits of Gerhart’s equal protection claim, the above discussion demonstrates that he has alleged a constitutional violation. Therefore, we must consider whether Gerhart’s equal

protection right was clearly established at the time his permit

application was rejected. We conclude that the right was

clearly established, and conclude that the individual Commissioners are not entitled to summary judgment on the ground

of qualified immunity.

A defendant is not liable for actions that “d[id] not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow, 457 U.S. at

818. “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be

clear to a reasonable [official] that his conduct was unlawful

in the situation he confronted.” Saucier, 533 U.S. at 202. A

right can be clearly established in a novel factual situation, so

long as the existing law gives the defendants “fair warning”

that their actions are unconstitutional. Hope v. Pelzer, 536

U.S. 730, 741 (2002). 

GERHART v. LAKE COUNTY MONTANA 3741
[20] Gerhart’s constitutional right not to be intentionally

treated differently than other similarly situated property owners without a rational basis was clearly established at the time

his permit application was denied. Gerhart’s application was

denied in June 2008, nearly eight years after the Supreme

Court decided Willowbrook. Like Gerhart’s case, Willowbrook involved a “class of one” claim by a property owner

who complained that she was treated differently than other

property owners in the conditions imposed by the municipality for access to a public resource. The facts of Willowbrook

and this case are exceptionally similar. Because Willowbrook

clearly establishes Gerhart’s constitutional right to not be

intentionally treated differently than other similarly situated

property owners without a rational basis, we conclude that the

individual Commissioners are not entitled to qualified immunity on Gerhart’s equal protection claim.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to the County. We also affirm the

district court’s grant of summary judgment to the individual

Commissioners on Gerhart’s due process claim. We reverse

the district court’s grant of summary judgment to the individual Commissioners on Gerhart’s equal protection claim and

remand that claim for trial.11 Gerhart shall recover his costs on

appeal. 

AFFIRMED IN PART AND REVERSED IN PART.

11Because the district court dismissed all of Gerhart’s federal claims, it

declined to assert supplemental jurisdiction over his state law claims pursuant 28 U.S.C. § 1367(c)(3). In light of our disposition, we further order

that Gerhart’s state law claims be reinstated subject to further pretrial proceedings, as warranted. 

3742 GERHART v. LAKE COUNTY MONTANA