                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 08 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JULIET ERICKSON, an individual;                  No. 13-15624
PETER LOCKYER, an individual,
                                                 D.C. No. 2:12-cv-02880-JAM-
              Plaintiffs - Appellants,           CKD

  v.
                                                 MEMORANDUM*
COUNTY OF NEVADA, by and through
its Board of Supervisors,

              Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                             Submitted May 13, 2015**
                              San Francisco, California

Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.

       Juliet Erickson and Peter Lockyer appeal from the district court’s grant of

the County of Nevada’s motion to dismiss. Erickson and Lockyer claim that the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
County of Nevada violated their rights under the Equal Protection Clause by

failing to apply the County’s “Visually Important Ridgelines and Viewsheds”

(“VIR”) land use code to both their project and a cell tower project proposed by

Complete Wireless Consulting, Inc. (“CWC”) on adjacent property.

      Assuming without deciding that the County should have applied the VIR

code to CWC’s cell tower project, the homeowners have nevertheless failed to

raise a valid equal protection claim. Parties allegedly treated differently in

violation of the Equal Protection Clause are similarly situated only when they are

“arguably indistinguishable.” See Engquist v. Or. Dep’t of Agric., 553 U.S. 591,

601 (2008) (quotation marks and citation omitted); see also Squaw Valley Dev. Co.

v. Goldberg, 375 F.3d 936, 942, 945 (9th Cir. 2004) (holding that stream polluters

were not similarly situated despite at least one shared characteristic), overruled on

other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005). Here,

Erickson and Lockyer are not arguably indistinguishable from CWC for many

reasons: one is a private homeowner, the other a commercial business; one would

build for private use, the other would provide a service for public use; one seeks to

build a large, solid garage and office structure, the other seeks to build a

communications tower.




                                           2
      We may affirm the district court on any basis supported by the record. See

Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005). Because the plaintiffs and

CWC are not “arguably indistinguishable,” see Enquist, 553 U.S. at 601 (quotation

marks and citation omitted), the district court was correct in concluding that the

parties were not similarly situated for purposes of the Equal Protection Clause.

      Nor did the district court err in denying Erickson and Lockyer the

opportunity to amend their complaint. In light of our conclusion that the parties

are not similarly situated, amendment would have been futile. See Saul v. United

States, 928 F.2d 829, 843 (9th Cir. 1991).

      AFFIRMED.1




      1
        Appellants’ request for judicial notice, filed with this court on February 14,
2014, is GRANTED.
       Appellee’s requests for judicial notice, filed with this court on August 29,
2013 and October 1, 2014, are GRANTED.
       In light of the California Court of Appeal’s decision in Lockyer v. County of
Nevada, No. CO75249, 2014 WL 4805118 (Cal. Ct. App. Sept. 29, 2014),
Appellants’ Motion to Apply Collateral Estoppel Against Respondent, filed with
this court on February 14, 2014, is DENIED as moot.

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