                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 04 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



DSE GROUP, LLC; et al.,                          No. 08-15111

             Plaintiffs - Appellants,            D.C. No. CV-05-02233-MEA

  v.
                                                 MEMORANDUM *
ELAINE RICHARDSON, Commissioner
Arizona Department of Real Estate; et al.,

             Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Arizona
             Marµ E. Aspey, United States Magistrate Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: B. FLETCHER, CLIFTON and BEA, Circuit Judges.

       Plaintiffs-Appellants ('Plaintiffs') are seven owners of land in Arizona who

appeal the district court's final order granting summary judgment in favor of the

Defendants-Appellees--the Commissioner of the Arizona Department of Real

Estate, the Arizona Department of Real Estate (the 'Department'), and the State of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Arizona (collectively 'Defendants'). Plaintiffs contend Defendants prohibited

them from selling or developing their respective properties, which are all located in

an area commonly µnown as Greer Ranch. Plaintiffs raised four claims under 28

U.S.C. y 1983 for violations of their constitutional rights to: (1) procedural due

process, (2) equal protection of the laws, (3) substantive due process, and

(4) freedom from governmental taµings of their property without just

compensation. We affirm.

      As a threshold matter, we must decide whether Plaintiffs have standing to

sue the Defendants.1 Plaintiffs bear the burden of proof to show standing. Bennett

v. Spear, 520 U.S. 154, 167-68 (1997). Plaintiffs offered evidence that they are

injured because they are not able to build improvements upon their lands. That

injury is directly caused by Maricopa County, which refuses to issue building

permits to Plaintiffs because of a Final Order from the Arizona Department of Real

Estate. The Final Order designates Greer Ranch an illegal subdivision and

prohibits RTD Holdings, the owner of the subdivision, from selling parcels of

Greer Ranch without first complying with Arizona laws governing subdivisions.

For Plaintiffs to have standing, their injury must be 'fairly traceable' to


      1
         Neither party raised this issue; however, we have a duty to ensure that
jurisdiction exists. See D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031,
1035 (9th Cir. 2008).

                                           2
Defendants' actions. Id. at 162. Plaintiffs could satisfy that requirement by

proving Maricopa County's decision to refuse Plaintiffs' building permits was

coerced or determined by the Arizona Department of Real Estate's Final Order.

See id. at 169. Plaintiffs could prove, for example, that Maricopa County is bound

by Arizona law to deny building permits to property owners on land the Arizona

Department of Real Estate determines is an illegal subdivision. Here, Plaintiffs

have not adduced evidence that Maricopa County was coerced by Defendants or

that its decision was legally determined by Defendants. To the contrary, it appears

Plaintiffs injury is 'the result of the independent action of some third party not

before the court.' Id.; see A.R.S. y 11-808(B) (requiring Maricopa County zoning

inspector to deny building permits when proposed construction violates zoning

laws); A.R.S. y 11-806.01 (delegating power of zoning subdivisions to the

Maricopa County Board of Supervisors).

      Indeed, Maricopa County could grant building permits to Plaintiffs despite

the Arizona Department of Real Estate's Final Order. After all, the purpose of

having the Arizona Department of Real Estate issue public reports for subdivided

lands is to protect unwary buyers of land they later discover is uninhabitable, while

the purpose of issuing building permits is to protect the builders and the builders'

neighbors from nuisances and dangerous construction. These distinct purposes


                                           3
suggest the Arizona Department of Real Estate's decisions do not determine

Maricopa County's decisions to issue building permits.

      To the extent Plaintiffs might have a claim against Maricopa County for

incorrectly adopting the Department's finding, they have not alleged it here. Nor

have they made Maricopa County a party. Indeed, it is difficult to see what

Plaintiffs could complain of in Maricopa County's adoption of Defendants'

subdivision finding, given that Plaintiffs even now do not contest that Greer Ranch

meets the definition of a subdivision.

      In a separate cease and desist order, the Department did temporarily prohibit

Plaintiffs from selling their land. At the time of this appeal, however, all Plaintiffs

have been released from that order. Plaintiffs have made no identifiable and

separate claim for damages arising from the temporary cease and desist order.

      Plaintiffs have not alleged an injury that is fairly traceable to Defendants.

Therefore, we hold Plaintiffs lacµ standing.

      DISMISSED.




                                           4
                                                                             FILED
No. 08-15111, DSE Group, LLC, et al. v. Elaine Richardson, Commissioner 04 2010
                                                                     JUN
Arizona Department of Real Estate; et al.                         MOLLY C. DWYER, CLERK
                                                                           U.S . CO U RT OF AP PE A LS

CLIFTON, Circuit Judge, concurring in the judgment:

      I share the substantive conclusion of the majority. I disagree only in that I

would not express that conclusion in terms of standing and jurisdiction. In

practical terms, I view this as a disposition on the merits. The district court granted

summary judgment, and I would simply affirm that summary judgment based on

reasoning essentially similar to that laid out in the memorandum disposition.

Neither the district court nor the parties talµed about standing, and I do not thinµ

we need to, either.

      Plaintiffs here are surely 'aggrieved parties.' Their problem is that they do

not have a valid cause of action against these defendants. To say that as a result

they lacµ standing amounts to holding that a court lacµs jurisdiction because a

plaintiff does not have a meritorous claim. I acµnowledge that the terms

'standing' and 'jurisdiction' are often used to express conclusions that are at root

more substantive, but I fear that continuing down that path will result in those

terms entirely losing their more unique and useful meanings.
