Environmental Driven Solutions, LLC v. Dunn County

2017 ND 45, 890 N.W.2d 841, 2017 WL 899992, 2017 N.D. LEXIS 45
CourtNorth Dakota Supreme Court
DecidedMarch 7, 2017
Docket20160100
StatusPublished
Cited by11 cases

This text of 2017 ND 45 (Environmental Driven Solutions, LLC v. Dunn County) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Environmental Driven Solutions, LLC v. Dunn County, 2017 ND 45, 890 N.W.2d 841, 2017 WL 899992, 2017 N.D. LEXIS 45 (N.D. 2017).

Opinion

Crothers, Justice.

[¶ 1] Dunn County appeals from a judgment declaring the Industrial Commission has exclusive jurisdiction to determine the *843 location of oil and gas waste treating plants. We affirm, concluding the County-lacks the power to veto the Commission’s approval of the location for an oil and gas waste treating plant.

I

[¶ 2] In August 2013 Environmental Driven Solutions, LLC (“EDS”) received a permit from the Commission for a waste oil treating plant in Dunn County. The permit allowed EDS “to recycle and treat waste crude oil obtained from drilling operations, pit oil, swab oil, acid oil, tank bottoms, oil spills, pipeline breaks, skim oil from saltwater disposal tanks, and other waste crude oil related to oil and gas exploration and production.” The permit also notes “treating plants must comply with all applicable local, state, and federal laws and regulations.” Notice of • the hearing on EDS’s application was published in the Bismarck Tribune and in a Dunn County newspaper. Some area landowners objected in writing to EDS’s application, but representatives of the County did not object or appear at the hearing.

[¶ 3] After EDS began constructing the treating plant, the County issued notices of “violation and order to abate,” claiming the treating plant could not be constructed on the site because the property was zoned “Rural Preservation,” and “Salt Water Storage Tank & similar facilities” were not an “allowed use.” EDS applied to the County to rezone the property, but the County denied the application because its Land Development Code requires 120 acres to rezone and EDS’s property comprised only 118.58 acres, EDS then applied for a conditional use permit, but the County denied the application.

[¶ 4] EDS brought this action against the County seeking a declaratory judgment that the Commission, rather than the County, had jurisdiction to determine the siting of its treating plant. The Commission was allowed to intervene in the proceedings. The district court granted summary judgment, concluding the Commission had exclusive jurisdiction to determine the location of the oil and gas waste treating plant and the County’s zoning ordinances were preempted by state law.

II

[¶ 5] The County argues the district court erred because the Commission does not have the power to permit oil waste treating facilities that are barred by a county’s “properly-enacted zoning ordinance and land use comprehensive plan.”

[¶ 6] We review summary judgments in declaratory judgment actions under the same standard as other cases. See Ramsey Cty. Farm Bureau v. Ramsey Cty., 2008 ND 175, 115, 755 N.W.2d 920. In State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 4, 712 N.W.2d 828, we explained:

“Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. Summary judgment is appropriate if the issues , in the case are such that resolution of any factual disputes will not alter the result. Whether the trial court properly granted summary judgment is a question of law that we review de novo on the entire record.”

(Citations omitted). Because preemption analysis is largely a matter of statutory interpretation, summary judgment generally is an appropriate method for resolving the issue. See id., at ¶¶ 5, 6, 22.

[¶7] Our caselaw addressing preemption in the context of state and local *844 laws and ordinances mirrors federal preemption analysis. The three forms of federal preemption are “express preemption, field preemption, and conflict preemption.” FreeEats, 2006 ND 84, ¶ 23, 712 N.W.2d 828. Describing express preemption and field preemption we have said a county ordinance contravenes state law “(1) when there is an explicit state law or rule restraining the county’s authority” and “(2) when the industry or activity involved is already subject to substantial state control through broad, encompassing statutes or rules.” State v. Brown, 2009 ND 150, ¶ 21, 771 N.W.2d 267; see also N.D.C.C. § 11-09.1-05(5). We described conflict preemption in Mountrail Cty. v. Hoffman:

“Although counties have general authority to enact zoning ' ordinances, see N.D.C.C. § 11-33-01; Shaw v. Burleigh County, 286 N.W.2d 792, 795 (N.D. 1979), a local governing body cannot validly enact a zoning ordinance that contravenes federal or state law. See State ex rel. City of Minot v. Gronna, 79 N.D. 673, 697, 59 N.W.2d 514, 531 (1953); 1 E. Yokley, Zoning Law and Practice § 3-12 (1978); see also County of Hoke v. Byrd, 107 N.C.App. 658, 421 S.E.2d 800, 805 (1992).”

2000 ND 49, ¶ 7, 607 N.W.2d 901; see also Ramsey Cty., 2008 ND 175, ¶ 25, 755 N.W.2d 920.

[¶ 8] Judicial decisions often are not clear which type preemption is being considered. However, those decisions are clear that a local governing body’s actions and decisions may be preempted by state or federal law, or by the actions and decisions of state or federal agencies. See, e.g., Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 644 (2nd Cir. 2005) (pre-construction permit requirement of state’s environmental land use law was preempted by federal law because it “necessarily interfere[d]” with railroad’s ability to construct facilities); Wilderness Soc’y v. Kane Cty., 560 F.Supp.2d 1147, 1159 (D. Utah 2008) vacated on other grounds, 632 F.3d 1162 (10th Cir. 2011) (county’s ordinance and actions to manage routes on federal land “actually conflicted]” with federal law and were preempted); Rosscher v. Twp. of Algoma, 246 F.Supp.2d 791, 800-01 (W.D. Mich. 2003) (township’s denial of special use permit to build radio tower was not preempted by federal commission’s declaratory ruling); Ogden Envtl. Servs. v. City of San Diego, 687 F.Supp. 1436, 1448 (S.D. Cal. 1988) (city’s denial of conditional use permit to operate incineration facility was impermissible under federal preemption principles because federal agency had approved and granted permit to do so); Brubaker v. Bd. of Cty. Comm’rs, 652 P.2d 1050, 1060 (Colo. 1982) (county’s denial of special use permit to conduct test drilling conflicted with use of federal lands authorized by federal legislation and was preempted); Town of Colchester v. Reduction Assocs., Inc., 34 Conn.Supp. 177, 382 A.2d 1333, 1336 (1977) (town could not enforce zoning regulation prohibiting the disposal of unbaled waste because it was in “direct conflict” and preempted by a state agency’s permit to allow disposal of unbaled waste); Bannum, Inc. v. Dist. of Columbia Bd. of Zoning Adjustment, 894 A.2d 423, 432-33 (D.C. Ct. App.

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Bluebook (online)
2017 ND 45, 890 N.W.2d 841, 2017 WL 899992, 2017 N.D. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/environmental-driven-solutions-llc-v-dunn-county-nd-2017.