FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITIZENS FOR HONESTY AND 

INTEGRITY IN REGIONAL PLANNING,

Plaintiff,

No. 03-55830 and

D.C. No. KARL J. TURECEK,  CV-02-01855-RMB Plaintiff-Appellant,

ORDER

v.

COUNTY OF SAN DIEGO,

Defendant-Appellee. 

Appeal from the United States District Court

for the Southern District of California

Rudi M. Brewster, District Judge, Presiding

Argued and Submitted

February 10, 2005—Pasadena, California

Filed February 25, 2005

Before: Alfred T. Goodwin, Frank J. Magill,* and

Pamela Ann Rymer, Circuit Judges.

COUNSEL

Scott Zarin, San Francisco, California, for the plaintiffappellant. 

*The Honorable Frank J. Magill, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

2205
C. Ellen Pilsecker, Senior Deputy, County of San Diego, San

Diego, California, for defendant-appellee.

ORDER

The appeal is dismissed for want of jurisdiction. The district court record reveals that there was no case or controversy

between Karl A. Turecek (“Turecek”) and the County of San

Diego (“the County”) when the pleadings were before the district court. The judgment of the district court, styled Citizens

for Honesty and Integrity in Regional Planning v. County of

San Diego and reported at 258 F. Supp. 2d 1132 (S.D. Cal.

2003), must be vacated because no basis for federal jurisdiction existed. 

Turecek seeks a declaratory judgment that the definition of

“wetlands” employed by the local county Resource Protection

Ordinance (“RPO”) is preempted by the federal definition of

“wetlands” contained in the “Swampbuster” section of the

Food Security Act. RPO Art. II(16); 16 U.S.C. § 3801(a)(18).

The district court did not have jurisdiction to consider the preemption question. First, there is no evidence in the record that

the County’s decision to deny Turecek’s land use permit

application was grounded in its refusal to follow the narrower

federal definition of wetlands rather than the broader local

definition of wetlands. Second, there is no threat of prosecution, imminent or otherwise, or evidence that the County

intends to employ the local definition against Turecek. See

generally Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,

273 (1941). Mere possibility of future local regulatory action

challenged as unconstitutional or in conflict with federal law

is not sufficient for declaratory judgment jurisdiction. Public

Serv. Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237

(1952); Rincon Band of Mission Indians v. San Diego County,

495 F.2d 1 (9th Cir. 1974); Alton Box Bd. Co. v. Esprit de

Corp., 682 F.2d 1267 (9th Cir. 1982). Third, there is nothing

2206 TURECEK v. COUNTY OF SAN DIEGO
to suggest that even if a new permit application were pending,

the wetlands definition would determine the success of that

application. A declaratory judgment plaintiff may not

“carve[ ] out” of the potential controversy a single federal

question whose answer will be declared by the federal courts

ahead of time. Calderon v. Ashmus, 523 U.S. 740, 746 (1998).

DISMISSED and REMANDED with instructions to

VACATE the judgment. 

TURECEK v. COUNTY OF SAN DIEGO 2207
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