Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollu, et al

Filing

FILED OPINION (RICHARD A. PAEZ, CARLOS T. BEA and KEVIN THOMAS DUFFY) AFFIRMED. Judge: RAP Authoring, FILED AND ENTERED JUDGMENT. [7766581]

Case: 09-16790 05/27/2011 Page: 1 of 15

ID: 7766581 DktEntry: 36-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENSEN FAMILY FARMS, INC., a
California corporation,
Plaintiff-Appellant,
v.
MONTEREY BAY UNIFIED AIR
POLLUTION CONTROL DISTRICT,
Defendant-Appellee,
CALIFORNIA AIR RESOURCES BOARD,
Defendant-Intervenor-Appellee.




No. 09-16790
D.C. No.
5:08-cv-05003-JW
OPINION



Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding
Submitted November 4, 2010*
San Francisco, California
Filed May 27, 2011
Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and Kevin Thomas Duffy, District Judge.**
Opinion by Judge Paez

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.

7053

Case: 09-16790 05/27/2011 Page: 2 of 15

7056

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

COUNSEL
Matthew S. Hale, Newport News, Virginia; for plaintiffappellant Jensen Family Farms, Inc.
Charles J. McKee, County Counsel, and Leslie J. Girard,
Assistant County Counsel, County of Monterey, Salinas, California; for defendant-appellee Monterey Bay Unified Air Pollution Control District.
Edmund G. Brown, Attorney General, and Kathleen Kenealy
and Gavin G. McCabe, Deputy Attorneys General, San Francisco, California; for defendant-intervenor-appellee California
Air Resources Board.

OPINION
PAEZ, Circuit Judge:
In 2007, the Monterey Bay Unified Air Pollution Control
District (District) adopted and began enforcing rules that regulate diesel-powered engines. In particular, the District’s regulatory regime: (1) requires owners and operators to register
and pay fees for certain diesel engines used in agricultural
operations, and (2) sets emissions standards for stationary diesel engines within the District. The principal question in this
case—among other questions—is whether the District’s rules
are preempted by the federal Clean Air Act (CAA), 42 U.S.C.
§§ 7401 et seq. We hold that the District rules are not preempted, and affirm the district court’s judgment on the pleadings in favor of the defendants.

Case: 09-16790 05/27/2011 Page: 3 of 15

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

I.

7057

FACTS

Jensen Family Farms, Inc. (Jensen) is a for-profit agricultural corporation that is incorporated under the laws of California and has its principle place of business in Monterey,
California. As part of its operations, Jensen owns and operates
diesel engines, including both stationary and portable diesel
engines. Jensen uses diesel engines to provide power to irrigation pumps on its farms.
The California Air Resources Board (CARB) is California’s air pollution control agency. Cal. Health & Safety Code
§ 39602. Under California law, CARB is required to adopt
airborne toxic control measures (ATCMs) for toxic air contaminants emitted from nonvehicular sources. Id. § 39666(a).
In 1998, CARB determined that particulate matter emissions
from diesel-fueled engines were a toxic air contaminant.
Accordingly, in 2004, CARB adopted an ATCM to address
diesel particulate matter emissions. See Cal. Code Regs. tit.
17, § 93115 et seq.
The District is a political subdivision of the State of California, and comprises Monterey, Santa Cruz, and San Benito
Counties. Under state law, the District has primary responsibility for controlling air pollution from all sources other than
motor vehicle emissions for its three constituent counties. Cal.
Health & Safety Code § 40000. Shortly after CARB adopts an
ATCM, the District is required to either implement and
enforce the ATCM, or adopt and enforce an equally effective
or more stringent regulation (sometimes referred to as a “replacement rule”). Cal. Health & Safety Code § 39666(d).
In May 2007, the District adopted Rules 220, 310, and
1010 (collectively, the “Rules”). Rule 220 requires owners or
operators of diesel engines to register with the District any
diesel engine of 50 brake horsepower (“bhp”) or larger that is
used for agricultural operations. Rule 310 imposes application
fees and annual registration fees on the owners and operators

Case: 09-16790 05/27/2011 Page: 4 of 15

7058

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

of engines that are subject to Rule 220’s registration scheme.
In February 2008, Jensen registered several engines with the
District and paid the required fees. Rule 1010—the third District rule that Jensen challenges—sets emissions standards for
stationary diesel engines. Rule 1010 is a “replacement rule”
for CARB’s ATCM for diesel particulate matter. See Cal.
Code Regs. tit. 17, § 93115 et seq.
In November 2008, Jensen sued the District, alleging that:
(1) all of the District’s Rules are preempted by the CAA; (2)
Rules 220 and 310 violate certain provisions of California
law; and (3) the Rules violate Jensen’s due process rights.
After the District filed its answer, Jensen moved for summary
judgment and a permanent injunction. While Jensen’s motion
was pending, the district court granted CARB’s motion to
intervene. The District and CARB (collectively, “Defendants”) then filed a joint motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). After
hearing argument on both Jensen’s and Defendants’ motions,
the court entered a final judgment granting Defendants’
motion for judgment on the pleadings and denying Jensen’s
motion for summary judgment and permanent injunctive
relief.
The district court first concluded that Rules 220 and 310
are not preempted by the CAA because Rules 220 and 310 are
not “standards or other requirements relating to the control of
emissions.” The district court also rejected Jensen’s claim that
Rules 220 and 310 violate California law. The district court
next held that because Rule 1010 applies only to stationary
sources, it is not preempted by the CAA. Finally, the district
court rejected Jensen’s due process challenge after concluding
that there was a rational basis for the Rules. Jensen timely
appealed the district court’s judgment.1
1

We have jurisdiction to review the district court’s judgment on the
pleadings, 28 U.S.C. § 1291, and we review this judgment de novo. Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004). Judgment on the plead-

Case: 09-16790 05/27/2011 Page: 5 of 15

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

II.
A.

7059

ANALYSIS

Federal Preemption

[1] We start with an overview of the federal Clean Air Act
(CAA). The CAA makes “the States and the Federal Government partners in the struggle against air pollution.” General
Motors Corp. v. United States, 496 U.S. 530, 532 (1990).
“The basic structure of this partnership has not changed”
since the CAA’s inception. Engine Mfrs. Ass’n v. EPA
(“EMA”), 88 F.3d 1075, 1078 (D.C. Cir. 1996).
[2] The CAA governs emissions from both stationary and
mobile sources.2 The direct regulation of emissions from stationary sources is primarily left to the states. CAA § 116, 42
U.S.C. § 7416; see also EMA, 88 F.3d at 1079 (describing a
“history of detailed state regulation of stationary sources”).
On the other hand, the federal government sets nationwide
emissions standards for mobile sources.3 The category of
“mobile sources” includes both motor vehicles and “nonroad”
sources. See CAA § 202, 42 U.S.C. § 7521 (giving the
Administrator of the Environmental Protection Agency (EPA)
the authority to set emissions standards for new motor vehiings under Rule 12(c) is proper when the moving party establishes on the
face of the pleadings that there is no material issue of fact and that the
moving party is entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir. 1990).
Because we ultimately affirm the district court’s Rule 12(c) judgment for
Defendants, we do not separately address whether the district court abused
its discretion in denying Jensen’s motion for a permanent injunction.
2
In particular, Title I of the Clean Air Act regulates stationary sources,
while Title II addresses mobile sources. EMA, 88 F.3d at 1078-79.
3
The notable exception to this general rule is that California is permitted
to set its own mobile source emissions standards so long as it obtains EPA
approval. CAA § 209(b), 42 U.S.C. § 7543(b) (motor vehicles); CAA
§ 209(e)(2), 42 U.S.C. § 7543(e)(2) (nonroad sources). Because none of
the District’s Rules have been authorized by the EPA, this exception does
not affect this case.

Case: 09-16790 05/27/2011 Page: 6 of 15

7060

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

cles); CAA § 213, 42 U.S.C. § 7547 (same for nonroad
sources). Because the regulation of mobile source emissions
is a federal responsibility, Congress has expressly preempted
states from setting emissions standards for mobile sources.
CAA § 209(a), 42 U.S.C. § 7543(a) (preempting state regulation of new motor vehicle emissions); CAA § 209(e), 42
U.S.C. § 7543(e) (preempting state regulation of emissions
from nonroad mobile sources). We consider Jensen’s federal
preemption claims against this backdrop.
1.

District Rules 220 and 310

District Rule 220 provides that “[b]efore any 50 bhp or
larger diesel engine or engines may be operated, the owner or
operator shall register such engine(s) by submitting [registration information] to the District. . . .” Rule 220’s registration
requirements apply only to “diesel engine[s] of 50 brake
horsepower or larger utilized at an agricultural operation.”
District Rule 310 provides that “[e]very applicant for [a] diesel engine registration shall pay [a registration fee].”
[3] The registration and fee requirements of Rules 220 and
310 apply to diesel engines used at agricultural operations,
which are nonroad sources. See CAA § 209(e)(1), 42 U.S.C.
§ 7543(e)(1) (describing as “nonroad” engines or vehicles
used in farm equipment). Section 209(e) of the CAA
expressly prohibits states from setting emissions standards for
nonroad sources. In particular, section 209(e) provides:
(1) Prohibition on certain State standards
No State or any political subdivision thereof shall
adopt or attempt to enforce any standard or other
requirement relating to the control of emissions from
either of the following new nonroad engines or nonroad vehicles subject to regulation under this chapter
—

Case: 09-16790 05/27/2011 Page: 7 of 15

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

7061

(A) New engines which are . . . used in farm equipment or vehicles and which are smaller than 175
horsepower.
...
(2) Other nonroad engines or vehicles
(A) In the case of any nonroad vehicles or engines
other than those referred to in . . . paragraph (1), the
Administrator shall . . . authorize California to adopt
and enforce standards and other requirements relating to the control of emissions from such vehicles or
engines . . . .
42 U.S.C. § 7543(e) (emphasis added).
[4] Critically, the express preemption provision of
§ 209(e)(1) applies only to “standard[s] or other requirement[s] relating to the control of emissions” from certain new
nonroad engines and vehicles. Section 209(e)(2) addresses
other types of nonroad sources. See EMA, 88 F.3d at 1093
(rejecting EPA interpretation that § 209(e)(2) applies only to
new nonroad sources) (cited approvingly in Pacific Merchant
Shipping Ass’n v. Goldstene (“Pacific Merchant”), 517 F.3d
1108, 1113 (9th Cir. 2008)). Section 209(e)(2) requires California to obtain EPA authorization before adopting “standards
or other requirements relating to the control of emissions”
from nonroad engines not covered by section 209(e)(1). We
have held that section 209(e)(2) “creates a sphere of implied
preemption surrounding those regulations for which California must obtain authorization.” Pacific Merchant, 517 F.3d at
1113. “Any such standard or requirement that the EPA has
not duly authorized, therefore, is impliedly preempted by section 209(e)(2).” Nat’l Ass’n of Home Builders v. San Joaquin
Valley Unified Air Pollution Control Dist., 627 F.3d 730, 734
(9th Cir. 2010) (emphasis in original). Because the EPA has
not authorized Rules 220 and 310, our threshold task is to

Case: 09-16790 05/27/2011 Page: 8 of 15

7062

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

decide whether these rules constitute “standards or other
requirements relating to the control of emissions” from nonroad engines. We conclude that they do not, and therefore are
not preempted by § 209(e).
“[T]he task of statutory construction must in the first
instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive
intent.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664
(1993). Nonetheless, preemption language is to be “narrowly
and strictly construed.” Montalvo v. Spirit Airlines, 508 F.3d
464, 474 (9th Cir. 2007).
[5] The word “ ‘standard’ is defined as that which ‘is
established by authority, custom, or general consent, as a
model or example; criterion; test.’ ” Engine Mfrs. Ass’n v.
South Coast Air Quality Mgmt. Dist. (“South Coast”), 541
U.S. 246, 252-53 (2004) (quoting Webster’s Second New
International Dictionary 2455 (1945)). A commonsense reading of Rules 220 and 310 demonstrates that the registration
and fee regime laid out in these rules does not amount to
“standards or other requirements relating to the control of
emissions.” The requirements imposed by Rules 220 and 310
do not involve emissions control; they require owners and
operators of certain diesel engines to provide information to
the District about their engines and to pay fees. The plain language of Rules 220 and 310 has nothing to do with emissions
standards or the control of emissions.
South Coast includes examples of requirements contained
in Title II of the CAA that would properly be considered
“standards relating to the control of emissions” for federal
preemption purposes.4 For example, a state regulation requir4
Although South Coast interpreted the language of CAA § 209(a) (the
CAA preemption provision for the regulation of motor vehicle emissions),
we have applied the South Coast analysis to the preemption language of
§ 209(e) because both §§ 209(a) and (e) preempt state-imposed standards
relating to the control of emissions. We presume that “identical words
used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433
(1932).

Case: 09-16790 05/27/2011 Page: 9 of 15

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

7063

ing that vehicles or engines not emit more than a certain
amount of a given pollutant, see, e.g., CAA § 202(a)(3)(B)(ii),
42 U.S.C. § 7521(a)(3)(B)(ii), is easily a “standard relating to
the control of emissions.” South Coast, 541 U.S. at 253. Similarly, requirements that a vehicle or engine be equipped with
a certain type of pollution-control device, or that a vehicle or
engine include some other design feature relating to emissions
control, see CAA § 202(a)(6), 42 U.S.C. § 7521(a)(6), are
also “standards relating to the control of emissions.” See
South Coast, 541 U.S. at 253.
Here there is little similarity between the examples laid out
in South Coast and the registration and fee regime established
by Rules 220 and 310. Rules 220 and 310 do not require that
a vehicle or engine emit below a certain level of a given pollutant. Cf. Pacific Merchant, 517 F.3d at 1109. Nor do Rules
220 and 310 impose equipment or design requirements on
vehicles or engines. Cf. South Coast, 541 U.S. at 253. Rules
220 and 310 simply require owners to register and pay fees
for certain kinds of diesel engines. Neither Rule contains any
reference to emissions, and we therefore cannot conclude that
Rules 220 and 310 are “standards or other requirements relating to the control of emissions.”
We are also confident that the registration and fee regime
of Rules 220 and 310 is not the type of state action that Congress intended to preempt in § 209(e). In EMA, the D.C. Circuit carefully catalogued the congressional history and
objectives of the CAA and explained the reasons for Congress’s preemption of state mobile source emissions standards:
The regulatory difference [that gave states control
over stationary sources and retained federal control
of mobile source emissions] is explained in part by
the difficulty of subjecting motor vehicles, which
readily move across state boundaries, to control by
individual states. Congress had another reason for

Case: 09-16790 05/27/2011 Page: 10 of 15

7064

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

asserting federal control in this area: the possibility
of 50 different state regulatory regimes “raised the
spectre of an anarchic patchwork of federal and state
regulatory programs, a prospect which threatened to
create nightmares for the manufacturers.”
88 F.3d at 1079 (quoting Motor & Equip. Mfrs. Ass’n v. EPA,
627 F.2d 1095, 1109 (D.C. Cir. 1979)). Section 209(e) was
presumably added to Title II of the CAA with the same objective of creating national uniformity in emissions rules for nonroad engines and vehicles. See also EMA, 88 F.3d at 1080
(noting that the 1990 amendments—which added § 209(e)—
“add[ed] detail and refinements” to Title II but that the Title
“also continue[d] the basic pre-1990 regime”).
The registration and fee requirements of Rules 220 and 310
do not impose any requirements on manufacturers, nor do
they threaten “an anarchic patchwork of federal and state regulatory programs.” Because Rules 220 and 310 are only tenuously related to emissions standards, and because Rules 220
and 310 are likely outside the scope of state law that Congress
intended to preempt, we conclude that Rules 220 and 310 are
not preempted by section 209(e).
[6] Jensen contends that although Rules 220 and 310 do
not directly control emissions, they are nonetheless preempted
by § 209(e) because they “relate to” emissions control. We
find this argument unconvincing. Jensen specifically argues
that because the legislative mission of the District is to “control . . . air pollution from all sources [other than motor vehicles],” Cal. Health & Safety Code § 40000, Rules 220 and
310 necessarily relate to emissions standards. Under Jensen’s
logic, every rule promulgated by the District relating to nonroad engines and vehicles would be preempted by § 209(e).
Such a broad reading of the “relating to” clause would render
inconsequential the analysis contained in South Coast, which
clarified the breadth of the word “standard.” 541 U.S. at
252-53. Moreover, the Court did not suggest in South Coast

Case: 09-16790 05/27/2011 Page: 11 of 15

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

7065

that the statutory mission of the governmental authority has a
bearing on whether its air pollution regulations are federally
preempted. We therefore decline to embrace Jensen’s expansive interpretation of the term “relating to.”
[7] We also disagree with Jensen that Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383 (1992) dictates the
broad definition of “relating to” that would encompass Rules
220 and 310. In Morales, the Court considered the term “relating to” in the preemption provision of the Airline Deregulation Act of 1978, which prohibits states from “enforcing any
law relating to air carriers’ rates, routes, or services.” 504
U.S. at 374 (internal quotation marks omitted). The Court
defined “relating to” as “having a connection with or reference to [the direct object of the phrase.]” Id. at 384 (citing
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)). The
Court left room, however, for state actions that are “too tenuous, remote, or peripheral . . . to have pre-emptive effect.” Id.
at 390 (internal quotation marks omitted); see also New York
State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661-62 (1995); Californians for
Safe & Competitive Dump Truck Transp. v. Mendonca, 152
F.3d 1184, 1189 (9th Cir. 1998). Rules 220 and 310 fall into
this category. Accordingly, we hold that Rules 220 and 310
are not “standards or other requirements relating to the control
of emissions,” and are therefore not preempted by CAA
§ 209(e).
2.

District Rule 1010

[8] Unlike Rules 220 and 310, Rule 1010 unquestionably
sets emissions standards.5 As explained above, then, Rule
5

The emissions requirements for stationary diesel engines used in agricultural operations are contained at Rule 1010, Part 3.4, which provides:
No person shall sell, purchase, [ ] lease for use in the District [or
operate] any new stationary diesel-fueled engine to be used in

Case: 09-16790 05/27/2011 Page: 12 of 15

7066

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

1010 is preempted by the CAA insofar as it applies to nonroad engines. CAA § 209(e). The district court held that Rule
1010 is not preempted because it applies only to stationary
engines, which—by comparison of federal and state provisions here applicable—are mutually exclusive from nonroad
engines. We agree.
[9] By its language, Rule 1010 only applies to “stationary”
engines. Under Rule 1010, a “stationary” compression ignition (CI) engine is:
[a] CI engine that is designed to stay in one location,
or remains in one location. A CI engine is stationary
if any of the following are true:
the engine or its replacement is attached to a foundation [or] resides at the same location for more than
12 consecutive months . . . ; or
the engine remains or will reside at a location for
less than 12 consecutive months if the engine is
located at a seasonal source and operates during the
full annual operating period of the seasonal source
. . . ; or
the engine is moved from one location to another in
an attempt to circumvent the 12 month residence
time requirement. The period during which the
engine is maintained at a storage facility shall be
excluded from the residency time determination.
agricultural operations that has a rated brake horsepower greater
than 50 . . . unless the engine meets all of the following emission
performance standards (which are summarized in Table 5.). . . No
owner or operator shall operate an in-use stationary diesel-fueled
CI engine greater than 50 bhp in an agricultural operation in the
District unless it meets the requirements in Subsections 3.4.2.1
and 3.4.2.3 (which are summarized in Tables 6 and 7).

Case: 09-16790 05/27/2011 Page: 13 of 15

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

7067

On the other hand, the CAA implementing regulations make
clear that an engine is not a nonroad engine when it:
remains or will remain at a location for more than 12
consecutive months or a shorter period of time for an
engine located at a seasonal source. . . . Any engine
(or engines) that replaces an engine at a location and
that is intended to perform the same or similar function as the engine replaced will be included in calculating the consecutive time period.
40 C.F.R. § 89.2. Thus, the federal definition of a “nonroad
engine” and the District’s definition of a “stationary CI
engine” are mutually exclusive in all material aspects. We
thus conclude that Rule 1010 does not apply to any “nonroad
engines,” as that term is used in the CAA.
[10] Jensen protests that engines subject to regulation
under Rule 1010 are no different from diesel engines used on
marine vessels, which we considered “nonroad” engines in
Pacific Merchant. Jensen’s reliance on Pacific Merchant is
misplaced. In Pacific Merchant the parties agreed that the
engines at issue were nonroad engines, but argued about
whether the CARB rules in question amounted to “standards
or other requirements relating to the control of emissions.”
517 F.3d at 1110. In this case, the parties agree that Rule 1010
sets “standards relating to the control of emissions,” but argue
about whether Rule 1010 reaches nonroad engines. Thus,
Pacific Merchant does not help Jensen’s claim. Jensen essentially argues that its engines are “stationary” under Rule 1010,
yet “nonroad” under the CAA. Comparing the plain language
of 40 C.F.R. § 89.2 with the plain language of Rule 1010 precludes this argument. Accordingly, we hold that Rule 1010 is
not preempted by section 209(e).

Case: 09-16790 05/27/2011 Page: 14 of 15

7068

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

B.
1.

ID: 7766581 DktEntry: 36-1

Jensen’s Remaining Claims

State Preemption

[11] Jensen advances two theories of “state preemption” of
Rules 220 and 310. Jensen first argues that “insofar as [Rules
220 and 310] were issued pursuant to Cal. Code Regs. tit. 17,
§ 93116, they are preempted.” Because Rules 220 and 310
were issued pursuant to Cal. Health and Safety Code
§§ 39656, 39659 and 39666, not Cal. Code Regs. tit. 17,
§ 93116, there is no basis for Jensen’s claim that § 93116
“preempts” Rules 220 and 310.
Jensen also argues that Rules 220 and 310 are preempted
by Cal. Code Regs. tit. 13, § 2450 et seq. which creates California’s “Portable Equipment Registration Program.” These
regulations “preempt districts from permitting, registering, or
regulating portable engines and equipment units . . . except in
the circumstances specified in the regulations.” Id. Registration is voluntary and “[i]n the event that the owner of an
engine or equipment unit elects not to register under this program, the engine or equipment unit shall be subject to district
permitting requirements. . . .” Id. at § 2451(d). Because Jensen has not alleged that it participated in this voluntary program, the Rules are not preempted as applied to Jensen.
2.

Due Process

[12] Jensen also raises a substantive due process challenge
to the Rules. To succeed on a substantive due process claim
that, like this one, does not implicate a fundamental right or
suspect classification, Jensen must demonstrate that there is
no rational basis for the Rules. United States v. Alexander, 48
F.3d 1477, 1491 (9th Cir. 1995). Here, Jensen admits that the
Rules serve the “legitimate governmental interest” in
“minimiz[ing] air pollution from diesel engines.” Accordingly, we hold that Jensen’s substantive due process claim
fails.

Case: 09-16790 05/27/2011 Page: 15 of 15

ID: 7766581 DktEntry: 36-1

JENSEN FAMILY FARMS v. MONTEREY BAY UNIFIED

7069

Finally, Jensen argues that Rules 220 and 310 violate the
California Constitution, Article 13A because they “levy a tax
not approved by the electorate rather than a regulatory fee.”
Jensen did not raise this argument in its complaint, and the
argument was not considered by the district court. Accordingly, we conclude that it is waived. See Hormel v. Helvering,
312 U.S. 552, 556 (1941).
III.

CONCLUSION

For the foregoing reasons, we affirm the district court’s
grant of judgment on the pleadings in favor of the Defendants.
We further hold that Jensen’s appeal of the denial of his
motion for a preliminary injunction is moot.
AFFIRMED.