Venerian Casino Resort v. Local Joint Execitive Bd of Las Vegas

• Decision Date: 12 July 2001
• Docket Number: INTERVENOR-APPELLEE,No. 00-15136,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,00-15136
• Citation: 257 F.3d 937
• Parties: (9th Cir. 2001) VENETIAN CASINO RESORT, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY,, v. LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; CULINARY WORKERS UNION, LOCAL NO. 226, AN UNINCORPORATED ASSOCIATION; BARTENDERS UNION, LOCAL NO. 165, AN UNINCORPORATED ASSOCIATION; CLARK COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF NEVADA; STEWART L. BELL, IN HIS CAPACITY AS DISTRICT ATTORNEY OF CLARK COUNTY, NEVADA; LAS VEGAS METROPOLITAN POLICE DEPARTMENT,, AMERICAN CIVIL LIBERTIES UNION,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 937

257 F.3d 937 (9th Cir. 2001)

VENETIAN CASINO RESORT, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF-APPELLANT, v. LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; CULINARY WORKERS UNION, LOCAL NO. 226, AN UNINCORPORATED ASSOCIATION; BARTENDERS UNION, LOCAL NO. 165, AN UNINCORPORATED ASSOCIATION;

CLARK COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF NEVADA; STEWART L. BELL, IN HIS CAPACITY AS DISTRICT ATTORNEY OF CLARK COUNTY, NEVADA; LAS VEGAS METROPOLITAN POLICE DEPARTMENT, DEFENDANTS-APPELLEES,

AMERICAN CIVIL LIBERTIES UNION, INTERVENOR-APPELLEE.

No. 00-15136

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 18, 2000

July 12, 2001

Walter E. Dellinger, O'Melveny & Myers L.L.P., Washington, D.C., for the appellant.

Michael T. Anderson, Davis, Cowell & Bowe, L.L.P., San Francisco, California, and Mitchell M. Cohen, Deputy District Attorney, Las Vegas, Nevada, for the appellees.

Allen Lichtenstein, Las Vegas, Nevada, for the intervenor-appellee.

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding. D.C. No. CV-99-00276-PMP

Before: Mary M. Schroeder, Chief Judge, Procter Hug, Jr. and Melvin Brunetti, Circuit Judges.

OPINION by Judge HUG; Dissent by Judge Brunetti.

Hug, Circuit Judge.

The question we are presented with in this appeal is whether a sidewalk constructed on private property to replace a public sidewalk, accommodating pedestrian traffic adjacent to Las Vegas Boulevard, is a public forum subject to the protections of the First Amendment. The Venetian Resort Casino sued Clark County, the Clark County District Attorney, and the Las Vegas Metropolitan Police Department (collectively, "the County"), seeking a declaratory judgment that the replacement sidewalk constructed on its property is not a public forum and an injunction requiring the County to recognize and enforce the Venetian's right to exclude labor union demonstrators from the sidewalk. The district court denied the Venetian's request for an injunction and granted summary judgment in favor of the County and intervenors, the Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local No. 226, and Bartenders Union, Local No. 165 (collectively, "the Unions"), and the ACLU of Nevada. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Venetian Casino Resort is a large hotel and casino complex located on the former site of the Sands Casino on Las Vegas Boulevard South--"the Las Vegas Strip"--in Clark County, Nevada. As part of the approval process for demolishing the Sands and building the Venetian, the developers of the Venetian commissioned a study to determine the impact the new casino would have on traffic along Las Vegas Boulevard. The traffic impact study recommended widening Las Vegas Boulevard by one traffic lane along the Venetian frontage. In order to widen the roadway, however, the existing public sidewalk along the Venetian frontage would have to be removed to make room. The new lane of traffic would completely fill the State of Nevada's right-of-way on Las Vegas Boulevard, leaving no remaining public right-of-way on which to construct a new public sidewalk. The sidewalk, therefore, would have to be relocated onto the Venetian's property.

The overall building permit required the approval of Clark County. Initial discussions concerning the widening of Las Vegas Boulevard and the replacement of the sidewalk were conducted with Clark County officials. However, because Las Vegas Boulevard is on a State right-of-way, the Venetian entered into negotiations with the State of Nevada Department of Transportation ("Department") to resolve the issue of continued pedestrian passage along Las Vegas Boulevard after the widening of the street. On January 8, 1999, shortly before the Venetian opened for business, the Venetian and Department entered into an agreement ("1999 Agreement"). It is this agreement that is at issue in this case.¹ The 1999 Agreement provides:

The [Venetian] shall construct and maintain on its property along Las Vegas Boulevard South a private sidewalk connecting to public sidewalks on either side of its property. The private sidewalk shall have a minimum width of ten feet and shall satisfy the Americans with Disabilities Act for the purpose of providing unobstructed pedestrian access.

The Venetian further agreed to "remove or modify any of the [Venetian's] improvements at the [Venetian's] expense if they become a hazard or obstruction to either pedestrian or vehicular traffic, as reasonably determined by the DEPARTMENT," and to

dedicate necessary right-of-way to the DEPARTMENT and to construct thereon a sidewalk, with a minimum width of ten feet, behind the curb and gutter and adjacent to Las Vegas Boulevard at the [Venetian's] expense should the private sidewalk be removed, altered, or abandoned, and to construct the sidewalk at least equal to the State's standards. . . .

The 1999 Agreement specifies that is to be recorded and that it is binding on the Venetian's "heirs . . . successors and assigns."

In February 1999, the Venetian demolished the existing public sidewalk along Las Vegas Boulevard and constructed a temporary pedestrian walkway on its property. ² Soon thereafter, the Unions applied for a permit to hold a demonstration in front of the Venetian.³ The County issued a permit to the Unions on February 26, 1999. The permit authorized the Unions to hold a demonstration in front of the Venetian on the sidewalk and the inside traffic lane of Las Vegas Boulevard. When the Venetian learned of the planned demonstration, it hired a property surveyor to mark its property lines and erected signs stating that the pedestrian walkway was private property.

The Unions' demonstration took place on March 1, 1999. Approximately 1,300 people participated. During the demonstration, representatives of the Venetian issued warnings to the demonstrators that they were on private property. The Venetian also requested that the Las Vegas Metropolitan Police Department ("Police Department") remove the demonstrators from its property as trespassers. The Police Department, upon the advice of the Clark County District Attorney's Office declined to issue citations or make any arrests. Following the demonstration, the Unions expressed plans to organize further demonstrations, and the County indicated that it would continue to authorize the demonstrations.

Three days after the demonstration, the Venetian filed the present action. The Venetian's complaint alleges that by granting a permit to the Unions to conduct a demonstration on the Venetian's private sidewalk, and by refusing to assist the Venetian in removing the demonstrators, the County has taken the Venetian's property without due process in order to create a public forum. The Venetian requests a declaratory judgment that the sidewalk is not a public forum and an injunction requiring the County to recognize and enforce the Venetian's right to exclude labor union demonstrators from the sidewalk. The Unions and the ACLU of Nevada were granted leave to intervene by the district court.

On April 27, 1999, the district court denied the Venetian's request for a preliminary injunction. See Venetian Casino Resort v. Local Joint Executive Bd., 45 F. Supp. 2d 1027 (D. Nev. 1999). The Venetian appealed this order, but subsequently withdrew the appeal and moved for summary judgment in the district court. On August 20, 1999, the court granted summary judgment against the Venetian and in favor of the County and the intervenors. This appeal followed.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo . See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc); Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999). Our review is governed by the same standard used by the district court under Federal Rule of Civil Procedure 56(c). See Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir.), cert. denied, 120 S. Ct. 55 (1999). "[We ] must determine, viewing the evidence in the light most favorable to the non-moving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact." Balint, 180 F.3d at 1050. We may affirm a grant of summary judgment on any basis the record supports, including one the district court did not reach. See Herring v. Federal Deposit Ins. Corp., 82 F.3d 282, 284 (9th Cir. 1996); USA Petroleum Co. v. Atlantic Richfield Co., 13 F.3d 1276, 1279 (9th Cir. 1994).

III. DISCUSSION

The Venetian argues on appeal, as it did before the district court, that because the sidewalk along Las Vegas Boulevard in front of the Venetian is located on the Venetian's private property, it is the casino's right as a private property owner to regulate speech and expressive conduct on its property. The Unions and the ACLU of Nevada respond by arguing that the sidewalk is a traditional public forum, despite its private ownership, and that the Venetian dedicated the sidewalk to public use in exchange for approval from the County and State to construct the hotel and casino complex.⁴ We affirm the judgment entered by the district court.

It is important to recognize the circumstances giving rise to the construction of the replacement sidewalk on the property of the Venetian. It was the Venetian that desired that Las Vegas Boulevard be widened to accommodate automobile traffic in front of its hotel casino. The construction of an additional lane required utilizing the property where the State maintained a public sidewalk, which was an integral part of the public sidewalk accommodating pedestrian traffic going from one hotel casino to another along the Las Vegas Strip. In order to maintain a continuous sidewalk for pedestrians to walk along that side of Las Vegas Boulevard, without walking in the street, it was obvious that the...