                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 10 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HUMANE SOCIETY WESTERN                           No. 07-35775
REGION, a Washington non-profit
corporation d/b/a Happy Paws Farms,              D.C. No. CV-05-00377-MAT

             Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

SNOHOMISH COUNTY, a political
subdivision of the State of Washington,

             Defendant - Appellee.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Mary A. Theiler, Magistrate Judge, Presiding

                      Argued and Submitted February 5, 2009
                       Submission Vacated February 6, 2009
                          Resubmitted December 8, 2009
                               Seattle, Washington

Before: B. FLETCHER, RYMER and FISHER, Circuit Judges.

       Humane Society Western Region d/b/a Happy Paws Farms (HSWR) appeals

the district court’s order granting summary judgment to Snohomish County on


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
HSWR’s 42 U.S.C. § 1983 claims asserting that Snohomish County Code (SCC)

6.06.005(7) (2007), which limits housing of dogs in a licensed temporary animal

shelter to six months, violated its substantive due process rights, and that the

County’s dog barking and noise ordinances (SCC 6.06.025(1), 10.01.020(25),

10.01.020(29), 10.01.040(1), 10.01.050(5)(b) (2007)) are unconstitutionally vague

and permit arbitrary enforcement. We reverse in part and affirm in part.

      We reverse the district court’s holding that HSWR’s substantive due process

claim challenging the County’s six-month housing limitation under SCC

6.06.005(7) was preempted by the Fifth Amendment’s Takings Clause. See Crown

Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 855-56 (9th Cir. 2007); see

also Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d

1020, 1026 (9th Cir. 2007).

      However, HSWR’s claim still fails on the merits. HSWR acknowledges that

the County has a legitimate interest in protecting the safety, health and welfare of

the dogs and their owners. See Hill v. Colorado, 530 U.S. 703, 715 (2000);

Nicchia v. People of New York, 254 U.S. 228, 230-31 (1920). Although subject to

debate, the County’s six-month housing rule is neither arbitrary nor irrational, but

instead rationally advances this legitimate interest. See Spoklie v. Montana, 411




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F.3d 1051, 1059 (9th Cir. 2005); Kawaoka v. City of Arroyo Grande, 17 F.3d 1227,

1234 (9th Cir. 1994).

      HSWR also does not demonstrate that the dog barking and noise ordinances

are unconstitutionally vague or permit arbitrary enforcement. See Hill, 530 U.S. at

732. The ordinances are not unconstitutionally vague for failing to specify the

sound decibel level of dog barking that constitutes a violation; the sound is within

the “common understanding” of a “person of ordinary intelligence” who can

reasonably understand the context of what was being prohibited. Grayned v. City

of Rockford, 408 U.S. 104, 108, 112 (1972) (internal quotation marks omitted); see

also Boos v. Barry, 485 U.S. 312, 330, 332 (1988). Nor does the record in this

case evidence that the noise ordinances were arbitrarily enforced, particularly

given the substantial evidence of violations and HSWR’s stipulation to a violation

of the ordinance. See Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose

conduct a statute clearly applies may not successfully challenge it for vagueness.”).

Finally, the fact that the enforcement of the ordinances relied on neighbor

complaints and some discretion by County animal control officers also does not

demonstrate arbitrary enforcement in this case. See, e.g., Hill, 530 U.S. at 733;

Ward v. Rock Against Racism, 491 U.S. 781, 793-95 (1989); Cameron v. Johnson,

390 U.S. 611, 615-16 & n.7 (1968); Grayned, 408 U.S. at 109-14.


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Each party shall bear its costs on appeal.

REVERSED IN PART, AFFIRMED IN PART.




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