288 F2d 886 Pacific Inter-Club Yacht Association v. H a Morris

288 F.2d 886

H. A. MORRIS, District Engineer, T. H. Richards, Jr., Carl
F. Wente, William P. Elser, Henry Clineschmidt and James H.
Smith, Members of the Fish and Game Commission of the State
of California, et al., Appellees.

No. 17019.

United States Court of Appeals Ninth Circuit.

April 10, 1961.

J. Warren Manuel, Oakland, Cal., for appellant.

Laurence E. Dayton, U.S. Atty., San Francisco, Cal., Keith R. Ferguson, Sp. Asst. to Atty. Gen., for appellee H. A. Morris, Dist. Engineer.

Stanley Mosk, Atty. Gen. of California, Ralph W. Scott, Deputy Atty. Gen., for appellees Richards and others.

James M. Shumway, County Counsel, Fairfield, Cal., for appellees Kilby and others.

Before ORR, HAMLIN, and MERRILL, Circuit Judges.


view counter

The trial court dismissed an action instituted by appellant seeking to enjoin appellees from constructing a bridge across Montezuma Slough, situate in Solano County, State of California. Appellant duly appealed to this court from the judgment of dismissal but did not obtain a stay either in the trial court or in this court, as a consequence of which the bridge has been constructed. It is contended that the construction of the bridge renders the subject matter of the appeal before this court moot. A motion was filed by appellee asking that the appeal be dismissed on that ground. The motion was heard by a different panel of this court. That panel denied the motion without prejudice to its again being presented at the time of the hearing on the merits.


We see no question of law or fact involved in the instant appeal the determination of which would be helpful in a subsequent case of this character. The controversy revolves around the question of whether a proper notice of hearing was given and a proper hearing had before the permit to construct the bridge was issued by the Chief of Engineers and the Secretary of the Army. The legality of the issuance of each permit would be determined by the particular facts of each case. The law seems clear as to what is required. See 5 U.S.C.A. 1001 et seq.


Appellant relies on the case of American Civil Liberties Union v. Board of Education, 55 Cal.2d , 10 Cal.Rptr. 647. In that case the California Supreme Court ruled on a petition for a restraining order to permit the use of public school facilities for public meetings, even though the requested meeting dates had passed, because the court felt there was a continuing right of the petitioner to make similar applications for the use of the school facilities for its meetings, which applications would raise the same important questions. We find no such continuing right here. Furthermore, no important public questions are involved which would have effect upon furture appeals.


Appeal dismissed.