Brown v. Division of Water Rights of Department of Natural Resources

2008 UT App 353, 195 P.3d 933, 614 Utah Adv. Rep. 3, 2008 Utah App. LEXIS 340

Opinions

OPINION

BILLINGS, Judge:

11 Plaintiffs Lawrence Brown, Marilyn Brown, Joseph Sorenson, and Kathleen Sor-enson appeal the trial court's order dismissing their case against Defendants James A. Mclntyre, the Division of Water Rights of the Department of Natural Resources (the Division), and Jerry D. Olds in his capacity as the Utah State Engineer, for lack of standing. We affirm.

BACKGROUND

2 Plaintiffs and MeclIntyre are neighbors with property along Little Cottonwood Creek. Melntyre has property located on both sides of Little Cottonwood Creek. In August 2006, Melntyre filed an application with the Division to construct a bridge across the creek to connect the two parts of his property. Plaintiffs submitted an objection to Melntyre's application in September 2006. In October 2006, the Division approved Mclntyre's application; Plaintiffs subsequently submitted a request for reconsideration of the Division's approval. The Division denied the request for reconsideration in November 2006.

[ 3 On December 15, 2006, Plaintiffs filed a Petition for Judicial Review of Informal Administrative Proceedings and Agency Action and Complaint for Injunctive Relief (the Complaint) in the Third District Court, challenging the Division's grant of Melntyre's application. Specifically, Plaintiffs alleged that the bridge Melntyre proposed to build would "alter [Little Cottonwood Creek's] channel, and thereby diminish the natural channel[']s ability to conduct high water flows, heighten the potential for damming, and thus increase the risk of flooding" and the damage caused by flooding in the area where Plaintiffs reside. Plaintiffs claimed that the location of the bridge was "in an area of high flood risk" and that "in the event flooding oceur[red] due in whole or in part to the construction of the proposed bridge, the natural [creek] environment [would] be adversely affected and potentially destroyed by the invading flood waters."

T4 In response to the Complaint, Meln-tyre filed a Motion to Dismiss, claiming that Plaintiffs lacked standing. While MeiIntyre's Motion to Dismiss was pending, Plaintiffs filed a Motion for a Temporary Restraining Order and Preliminary Injunction. The trial court denied that motion in March 2007. In April 2007, the trial court granted Melntyre's Motion to Dismiss. Plaintiffs now appeal.

ISSUE AND STANDARD OF REVIEW

15 On appeal, Plaintiffs argue that the trial court erred when it granted MelIn-tyre's Motion to Dismiss for lack of standing. "[The question of whether a given individual . has standing to request a particular [form of] relief is primarily a question of law. ..." Washington County Water Conservancy Dist. v. Morgan, 2008 UT 58, ¶ 18, 82 P.3d 1125 (second alteration in original) (internal quotation marks omitted). Generally, "for purposes of evaluating a motion to dismiss, the facts alleged in the complaint are to be considered as true, with any inferences drawn in favor of the plaintiffs' claims." Haymond v. Bonneville Billing & Collections, Inc., 2004 UT 27, ¶ 5, 89 P.3d 171. However, in this case we look at more than just the statements and allegations made in the complaint because Plaintiffs attached an engineer's report to their complaint. Therefore, we acknowledge that "there may be factual findings that bear on the issue [of standing)," and we review those factual findings "with deference." Berg v. State, 2004 UT App 337, ¶ 5, 100 P.3d 261 (internal quotation marks omitted).

ANALYSIS

16 Under Utah law, a plaintiff "must have standing to invoke the jurisdiction of the court." Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983). "[The first and most widely employed standard for establishing standing" is also referred to as the "traditional test for standing." Morgan, 2008 UT 58, ¶ 20, 82 P.3d 1125 (internal quotation marks omitted). This test "'requires a plaintiff to show some distinct and palpable injury that gives rise to a personal stake in the outcome of the dispute"" Id. (quoting National Parks & Conservation Ass'n v. Board of State Lands, 869 P.2d 909, 913 (Utah 1993)).

T7 We use a three-part inquiry to determine whether a party has suffered such a distinct and palpable injury:

First, the party must assert that it has been or will be "adversely affected by the [challenged] actions." Second, the party must allege a causal relationship "between the injury to the party, the [challenged] actions and the relief requested." Third, the relief requested must be "substantially likely to redress the injury claimed."

Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (alterations in original) (quoting Jenkins, 675 P.2d at 1149-50). If a party can satisfy all three parts of this inquiry, then it has standing to pursue its claims. See id.

18 We begin by addressing the first part of this three-part inquiry-whether Plaintiffs have been or will be adversely affected by MelIntyre's bridge. To make this determination, we examine whether Plaintiffs' interests are "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted); see also Sierra Club, 2006 UT 74, ¶ 20, 148 P.3d 960 (noting that the plaintiff must have "'a real and personal interest in the dispute'" (quoting Jenkins, 675 P.2d at 1150)).

T9 The United States Supreme Court has noted that a particularized injury is one that "affect[s] the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560, n. 1, 112 S.Ct. 2130. It is clear from the complaint that Plaintiffs in this case have a personal interest in the dispute. They own property along Little Cottonwood Creek where Mclntyre has built his bridge. Their property is at risk if there is significant flooding of Little Cottonwood Creek. Thus, Plaintiffs have a personal interest in the construction of Melntyre's bridge.

110 The requirement that the injury be actual or imminent is more troublesome. "The 'Supreme Court has consistently recognized that threatened rather than actual injury can satisfy ... standing requirements." Harris v. Board of Supervisors, 366 F.3d 754, 761 (9th Cir.2004) (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000) (en banc). However, "when standing is based upon the threat of future injury, a plaintiff must show that the threat of injury is both real and immediate, not conjectural or hypothetical." Resident Councils of Wash. v. Thompson, No. C04-1691Z, 2005 WL 1027123, at *3, 2005 U.S. Dist. LEXIS 33630, at *11 (D.Wash. May 2, 2005) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). There is no specific formula for determining when a future threat of injury qualifies as real or immediate. See id. Such a determination is individual and must be determined on a case-by-case basis. See Nelsen v. King County, 895 F.2d 1248, 1251 (9th Cir.1990). However, "what a plaintiff must show is not a probabilistic estimate that the general circumstances to which the plaintiff is subject may produce future harm, but rather an individualized showing that there is a very significant possibility that the future harm will ensue." Id. at 1250 (emphasis added) (internal quotation marks omitted).

111 In determining whether Plaintiffs have suffered an actual or imminent harm, we review both Plaintiffs' complaint and the attached engineer's report. In Berg v. State, 2004 UT App 337, 100 P.3d 261, this court recognized a need to review "factual findings that bear on the issue [of standing]." Id. T5. In Berg, the State filed a motion to dismiss for lack of standing. See id. T3. Attached to the motion was a sworn affidavit from the Utah Attorney General stating specific facts regarding the standing issue. See id. The affidavit was reviewed by both the trial court and the appellate court in determining that the plaintiff did not have standing. See id. N4, 10. Similarly, we also review certain facts that bear on the standing issue in this case.

12 We conclude that Plaintiffs claim is too speculative to amount to an actual or imminent injury. Plaintiffs' complaint makes the following allegations:

19. The approved bridge will ... diminish the stream[']s ability to conduct high water flows and thereby increase risk and danger of flooding, and in the event flooding occurs, the surrounding stream environment will be unnecessarily and adversely affected.

20. Construction of the proposed bridge and access ramps will alter the streams channel, and thereby diminish the natural channel{'s] ability to conduct high water flows, heighten the potential for damming, and thereby increase the risk of flooding in the surrounding areas.

21. As observed in the Spring of 1984, the location of the bridge is already in an area of high flood risk. The approved bridge, if constructed, will only enhance the already

high flood risk and danger to ... Plaintiffs' ... properties.

22. In the event flooding occurs due in whole or in part to the construction of the proposed bridge, the natural stream environment will be adversely affected and potentially destroyed by the invading flood waters.

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24. The [engineer's report] demonstrates that ... [wJater flow like that experienced in 1984 would flow over, and significantly increase the stress on, the bridge as approved.

25. The [engineer's report] ... demonstrates that if flows similar to those in 1984 are experienced in the stream channel ... the erosion could cause the stream banks to overflow and inundate the first level flood plains on both sides of the stream in the vicinity of the bridge. Such an event will cause significant erosion and damage to ... Plaintiffs] property].

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28. Plaintiffs have already observed subsidence of their property in areas close to ... Little Cottonwood Creek.

29. Additionally, Plaintiffs have observed foundation and settling cracks on structures located on the property as a result of the subsidence of the areas near ... Little Cottonwood Creek.

30. The construction of a bridge in this environmentally fragile area will result in irreparable harm and damage to ... Plaintiffs and their property.

113 These allegations do not rise to the level of demonstrating an actual or imminent injury to Plaintiffs. The majority of the allegations are simply conclusory statements that the bridge will alter Little Cottonwood Creek's natural stream flow and that Plaintiffs will suffer harm if a flood occurs. The complaint simply provides the Plaintiffs' opinions regarding their fears and concerns of a potential future harm.

$14 We acknowledge that the complaint does assert some actual facts suggesting that a flood or high water flows would cause harm to Plaintiffs' property. These facts are supported by the engineer's report and are focused on the Little Cottonwood Creek flooding that occurred in 1984. Indeed, the engineer's report attached to the complaint shows a danger of possible damage to Plaintiffs' property if Little Cottonwood Creek's water flows reach the same levels that they did in 1984. However, the potential dangers are contingent on key, unknown events-an increased water flow or a flood-which are dictated by unknown weather patterns. Essentially, Plaintiffs' injury depends on " 'contingent future events that may not occur as anticipated or indeed may not occur at all"" Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (quoting 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3532 (2d ed.1984)).¹ As the District of Columbia Cireuit held, "[ilt is not enough ... to assert that [the plaintiff] might suffer an injury in the future, or even that [the plaintiff] is likely to suffer an injury at some unknown future time. Such 'someday' injuries are insufficient" J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 606 (D.C.Cir.1996).

€ 15 Plaintiffs' complaint provides evidence of Little Cottonwood Creek flooding in 1984. However, the 1984 flood is the only specific evidence of flooding that Plaintiffs allege. That flood occurred over twenty years ago. Plaintiffs have not made any other allegations or offered any other evidence that a similar flood is immediate or at least "certainly impending," see Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Further, it is unknown what work was done to Little Cottonwood Creek after the 1984 flood to prevent future flooding in the area. Because Plaintiffs' injuries require this court "to infer what events might transpire to cause [Plaintiffs] harm in the future, the [standing] requirement(s are] not met." LPA Inc. v. Chao, 211 F.Supp.2d 160, 164 (D.D.C.2002).²

CONCLUSION

116 We conclude that although Plaintiffs have demonstrated an individual, particularized interest in the construction of Meln-tyre's bridge, they have not demonstrated that any potential injury to their property is actual or imminent. The threat of any harm to their property is too speculative because it is contingent on unknown future events. Accordingly, we affirm.

117 I CONCUR: JAMES Z. DAVIS, Judge.

Footnotes

1

. We recognize that Thomas v. Union Carbide Agricultural Products, Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), discusses the requirements for a ripeness challenge. However, "[a ripeness] argument could easily be reformulated in terms of standing.... 'The doctrines of standing and ripeness are closely related, and in [some] cases ... overlap entirely.'" Lane v. Stephenson, No. 96-C-5565, 1996 WL 715535, at *2 n. 4, 1996 U.S. Dist. LEXIS 18346, at *8 n. 4 (N.D.Ill.Dec.9, 1996) (second alteration and second omission in original) (quoting Smith v. Wisconsin Dept. of Agric., 23 F.3d 1134, 1141 (7th Cir.1994)).

2

. Defendants argue on appeal that Plaintiffs' claim for injunctive relief is now moot because the bridge has already been built. Given our decision on the standing issue, we do not need to address this issue. Still, we recognize that Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction prior to the bridge's construction while Mclutyre's Motion to Dismiss was being considered. Because Plaintiffs took active measures to prevent the construction of the bridge and because we have the authority to restore the status quo by ordering the bridge removed, Plaintiffs' appeal on that issue is not moot. See Porter v. Lee, 328 U.S. 246, 251, 66 S.Ct. 1096, 90 L.Ed. 1199 (1946) ("It has long been established that where a defendant with notice in an injunction proceeding completed the acts sought to be enjoined the court may by mandatory injunction restore the status quo."). Moreover, we note that after Plaintiffs filed their appeal, McIntyre moved this court to dismiss based on grounds of mootness and we denied that motion.