United States Court of Appeals Fifth Circuit F I L E D In the July 28, 2003 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________
m 02-40880 m 02-41155 _______________
CARL MONK; CONSTANCE MONK; PATRICK MCBRIDE; GARY GRAYBEAL; JIM LOERCH; CHRIS LOTT; DARLENE LOTT; DAVID BROCK; KAY GLANDT; PATRICIA WRIGHT-COMBS; KAREN CAUDLE MUDD; DARIO GARCIA; CHESTER BIENIK; JOY BRACEY; TED HOLLINGSWORTH; AND JOHNNIE JENNINGS,
Plaintiffs-Appellees,
VERSUS
ROBERT J. HUSTON, ETC., ET AL.,
Defendants,
ROBERT J. HUSTON, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; R.B. RALPH MARQUEZ, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; KATHLEEN HARTNET WHITE, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; AND JEFF SAITAS, IN HIS OFFICIAL CAPACITY AS THE EXECUTIVE DIRECTOR OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION,
Defendants-Appellants. _________________________
Appeal from the United States District Court for the Southern District of Texas _________________________
Before SMITH, DENNIS, and CLEMENT, tion via administrative proceedings before the Circuit Judges. State Office of Administrative Hearings (“SOAH”), to which the matter had been re- JERRY E. SMITH, Circuit Judge: ferred for adjudication.
Defendant officials of the Texas Commis- In April 2002, plaintiffs sued, alleging vio- sion on Environmental Quality (“TCEQ”) ap- lations of their rights under the Fifth and Four- peal (1) a preliminary injunction precluding teenth Amendments. Contending that no as- them from considering a landfill permit appli- certainable standards exist to guide the agen- cation and (2) the denial of their motion to dis- cy’s ultimate determination whether to ap- miss. Concluding that this dispute is not ripe prove the application, plaintiffs sought prelim- for adjudication, we vacate the injunction and inary and permanent injunctions barring Robert reverse and remand. Huston, the presiding officer of the TCEQ; Ralph Marquez and Kathleen White, TCEQ I. commission officers; Margaret Hoffman, the In 1996, TSP Development, Limited, a TCEQ Executive director; and Sheila Taylor, Texas limited partnership, filed a permit ap- director of the SOAH (collectively “defen- plication with the TCEQ requesting approval dants” or “agency defendants”), from further to construct a landfill facility capable of han- considering the application until additional dling three classes of nonhazardous industrial rules and regulations governing NISW landfills solid waste (“NISW”), the most noxious of are promulgated. which is Class I.1 Plaintiffs, who are owners or occupiers of land within one mile of the The agency defendants filed a motion to proposed landfill, actively opposed the applica- dismiss and a response in opposition to the ap- plication for preliminary injunction; the court 1 denied the motion and issued the preliminary Class I NISW is industrial solid waste that injunction. The agency defendants appeal the does not meet the definition of hazardous waste preliminary injunction under 28 U.S.C. promulgated by the EPA but, because of its con- § 1292(a)(1), and they appeal the denial of centration or physical or chemical characteristics, is toxic, corrosive, flammable, a strong sensitizer their motion to dismiss pursuant to the district or irritant, or a generator of sudden pressure by de- court’s certification of that order under composition, heat, or other means, and may pose a § 1292(b) and this court’s grant of permission substantial present or potential danger to human to take an interlocutory appeal. health or the environment if improperly processed, stored, transported, or otherwise managed. See II. TEX. HEALTH & SAFETY CODE § 361.003(2)-(3).
2 Defendants contend that the district court Bank, 473 U.S. 172, 199-200 (1985)). erred in exercising jurisdiction, because the matter was not yet ripe for resolution. We re- As plaintiffs note, however, Hidden Oaks view ripeness determinations de novo. Ltd. v. City of Austin, 138 F.3d 1036 (5th Cir. Groome Res. Ltd., L.L.C. v. Parish of 1998), limits Smith’s application here. In Hid- Jefferson, 234 F.3d 192, 198-99 (5th Cir. den Oaks, id. at 1045 n.6, we held that 2000). procedural due process claims not arising from or ancillary to a takings claim are not subject “A court should dismiss a case for lack of to the ripeness constraints set forth in Wil- ‘ripeness’ when the case is abstract or hypo- liamson. Because the instant plaintiffs have thetical.” New Orleans Pub. Serv., Inc. v. not asserted a takings claim, the ripeness test Council of New Orleans, 833 F.2d 583, 586 articulated in Williamson County and applied (5th Cir. 1987). “The key considerations are in Smith does not control. ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding This does not end the ripeness inquiry, court consideration.’” Id. (quoting Abbott however. Although plaintiffs’ claim need not Labs. v. Gardner, 387 U.S. 136, 149 (1967)). satisfy the specific test applicable to takings “A case is generally ripe if any remaining ques- claims, it still must comply with the principles tions are purely legal ones; conversely, a case governing ripeness determinations generally.3 is not ripe if further factual development is Those principles direct courts “[to] dismiss a required.”2 case for lack of ‘ripeness’ when the case is ab- stract or hypothetical.” New Orleans Pub. In Smith v. City of Brenham, 865 F.3d 662 Serv., Inc. v. Council of New Orleans, 833 (5th Cir. 1989), this court addressed similar F.2d 583, 586 (5th Cir. 1987). In making this claims: Plaintiffs alleged that the city’s at- determination, “[t]he key considerations are tempts to obtain approval to operate a landfill ‘the fitness of the issues for judicial decision constituted an uncompensated taking and vio- and the hardship to the parties of withholding lated their rights to due process. Id. at 663. court consideration.’”4 “A case is generally We concluded that the due process challenge ripe if any remaining questions are purely legal to landfill permitting procedures by adjacent ones; conversely, a case is not ripe if further property owners was “premature” where “[n]o factual development is required.” Id. at 587. deprivation of property . . . ha[d] yet occurred . . . . [and] certainly [would] not occur at least Under these principles, this dispute is not until the permit process . . . ha[d] run its course.” Id. at 664 (citing Williamson County Regional Planning Comm’n v. Hamilton 3 See John Corp. v. City of Houston, 214 F.3d 573, 586 (5th Cir. 2000) (“In determining that [plaintiffs’] procedural due process claim is unripe, 2 Id.; see also Texas v. United States, 523 U.S. we do not apply Williamson County per se, but 296, 300 (1998) (“A claim is not ripe for adju- rather the general rule that a claim is not ripe if dication if it rests upon contingent future events additional factual development is necessary.”). that may not occur as anticipated, or indeed may 4 not occur at all” (citation and internal quotation Id. at 586-87 (quoting Abbott Labs. v. Gard- marks omitted)).
Free access — add to your briefcase to read the full text and ask questions with AI
United States Court of Appeals Fifth Circuit F I L E D In the July 28, 2003 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________
m 02-40880 m 02-41155 _______________
CARL MONK; CONSTANCE MONK; PATRICK MCBRIDE; GARY GRAYBEAL; JIM LOERCH; CHRIS LOTT; DARLENE LOTT; DAVID BROCK; KAY GLANDT; PATRICIA WRIGHT-COMBS; KAREN CAUDLE MUDD; DARIO GARCIA; CHESTER BIENIK; JOY BRACEY; TED HOLLINGSWORTH; AND JOHNNIE JENNINGS,
Plaintiffs-Appellees,
VERSUS
ROBERT J. HUSTON, ETC., ET AL.,
Defendants,
ROBERT J. HUSTON, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; R.B. RALPH MARQUEZ, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; KATHLEEN HARTNET WHITE, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; AND JEFF SAITAS, IN HIS OFFICIAL CAPACITY AS THE EXECUTIVE DIRECTOR OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION,
Defendants-Appellants. _________________________
Appeal from the United States District Court for the Southern District of Texas _________________________
Before SMITH, DENNIS, and CLEMENT, tion via administrative proceedings before the Circuit Judges. State Office of Administrative Hearings (“SOAH”), to which the matter had been re- JERRY E. SMITH, Circuit Judge: ferred for adjudication.
Defendant officials of the Texas Commis- In April 2002, plaintiffs sued, alleging vio- sion on Environmental Quality (“TCEQ”) ap- lations of their rights under the Fifth and Four- peal (1) a preliminary injunction precluding teenth Amendments. Contending that no as- them from considering a landfill permit appli- certainable standards exist to guide the agen- cation and (2) the denial of their motion to dis- cy’s ultimate determination whether to ap- miss. Concluding that this dispute is not ripe prove the application, plaintiffs sought prelim- for adjudication, we vacate the injunction and inary and permanent injunctions barring Robert reverse and remand. Huston, the presiding officer of the TCEQ; Ralph Marquez and Kathleen White, TCEQ I. commission officers; Margaret Hoffman, the In 1996, TSP Development, Limited, a TCEQ Executive director; and Sheila Taylor, Texas limited partnership, filed a permit ap- director of the SOAH (collectively “defen- plication with the TCEQ requesting approval dants” or “agency defendants”), from further to construct a landfill facility capable of han- considering the application until additional dling three classes of nonhazardous industrial rules and regulations governing NISW landfills solid waste (“NISW”), the most noxious of are promulgated. which is Class I.1 Plaintiffs, who are owners or occupiers of land within one mile of the The agency defendants filed a motion to proposed landfill, actively opposed the applica- dismiss and a response in opposition to the ap- plication for preliminary injunction; the court 1 denied the motion and issued the preliminary Class I NISW is industrial solid waste that injunction. The agency defendants appeal the does not meet the definition of hazardous waste preliminary injunction under 28 U.S.C. promulgated by the EPA but, because of its con- § 1292(a)(1), and they appeal the denial of centration or physical or chemical characteristics, is toxic, corrosive, flammable, a strong sensitizer their motion to dismiss pursuant to the district or irritant, or a generator of sudden pressure by de- court’s certification of that order under composition, heat, or other means, and may pose a § 1292(b) and this court’s grant of permission substantial present or potential danger to human to take an interlocutory appeal. health or the environment if improperly processed, stored, transported, or otherwise managed. See II. TEX. HEALTH & SAFETY CODE § 361.003(2)-(3).
2 Defendants contend that the district court Bank, 473 U.S. 172, 199-200 (1985)). erred in exercising jurisdiction, because the matter was not yet ripe for resolution. We re- As plaintiffs note, however, Hidden Oaks view ripeness determinations de novo. Ltd. v. City of Austin, 138 F.3d 1036 (5th Cir. Groome Res. Ltd., L.L.C. v. Parish of 1998), limits Smith’s application here. In Hid- Jefferson, 234 F.3d 192, 198-99 (5th Cir. den Oaks, id. at 1045 n.6, we held that 2000). procedural due process claims not arising from or ancillary to a takings claim are not subject “A court should dismiss a case for lack of to the ripeness constraints set forth in Wil- ‘ripeness’ when the case is abstract or hypo- liamson. Because the instant plaintiffs have thetical.” New Orleans Pub. Serv., Inc. v. not asserted a takings claim, the ripeness test Council of New Orleans, 833 F.2d 583, 586 articulated in Williamson County and applied (5th Cir. 1987). “The key considerations are in Smith does not control. ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding This does not end the ripeness inquiry, court consideration.’” Id. (quoting Abbott however. Although plaintiffs’ claim need not Labs. v. Gardner, 387 U.S. 136, 149 (1967)). satisfy the specific test applicable to takings “A case is generally ripe if any remaining ques- claims, it still must comply with the principles tions are purely legal ones; conversely, a case governing ripeness determinations generally.3 is not ripe if further factual development is Those principles direct courts “[to] dismiss a required.”2 case for lack of ‘ripeness’ when the case is ab- stract or hypothetical.” New Orleans Pub. In Smith v. City of Brenham, 865 F.3d 662 Serv., Inc. v. Council of New Orleans, 833 (5th Cir. 1989), this court addressed similar F.2d 583, 586 (5th Cir. 1987). In making this claims: Plaintiffs alleged that the city’s at- determination, “[t]he key considerations are tempts to obtain approval to operate a landfill ‘the fitness of the issues for judicial decision constituted an uncompensated taking and vio- and the hardship to the parties of withholding lated their rights to due process. Id. at 663. court consideration.’”4 “A case is generally We concluded that the due process challenge ripe if any remaining questions are purely legal to landfill permitting procedures by adjacent ones; conversely, a case is not ripe if further property owners was “premature” where “[n]o factual development is required.” Id. at 587. deprivation of property . . . ha[d] yet occurred . . . . [and] certainly [would] not occur at least Under these principles, this dispute is not until the permit process . . . ha[d] run its course.” Id. at 664 (citing Williamson County Regional Planning Comm’n v. Hamilton 3 See John Corp. v. City of Houston, 214 F.3d 573, 586 (5th Cir. 2000) (“In determining that [plaintiffs’] procedural due process claim is unripe, 2 Id.; see also Texas v. United States, 523 U.S. we do not apply Williamson County per se, but 296, 300 (1998) (“A claim is not ripe for adju- rather the general rule that a claim is not ripe if dication if it rests upon contingent future events additional factual development is necessary.”). that may not occur as anticipated, or indeed may 4 not occur at all” (citation and internal quotation Id. at 586-87 (quoting Abbott Labs. v. Gard- marks omitted)). ner, 387 U.S. 136, 149 (1967)).
3 ripe for judicial resolution. The plaintiffs con- The injunction is VACATED, and this mat- tend they have been injured by TCEQ’s failure ter is REVERSED and REMANDED for any to afford them due process in its consideration necessary proceedings.8 of the landfill permit. The constitutional right to due process is not, however, an abstract right to hearings conducted according to fair procedural rules. Rather, it is the right not to be deprived of life, liberty, or property without such procedural protections.5
Even assuming plaintiffs have identified constitutionally protected property interests that would be harmed by approval of the per- mit application, they have not suffered any de- privation, because the TCEQ permitting pro- cess has not yet run its course. The application may or may not be granted, and thus plaintiffs may or may not be harmed. Therefore, until the TCEQ issues the permit, this disput e remains “abstract and hypothetical”6 and thus unripe for judicial review.7
5 U.S. CONST. amend. XIV, § 1; see Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001) (“To bring a procedural due process claim under § 1983, a plaintiff must first identify a protected life, liberty or property interest and then prove that governmental action resulted in a deprivation of that interest.”); Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990) (“In order to claim entitlement to the protections of the due process clause . . . a plaintiff must first show that he has a constitutionally protected ‘liberty’ or ‘property’ in- terest, and that he has been ‘deprived’ of that pro- tected interest by some form of ‘state action.’” (citation and internal quotation marks omitted)). 7 (...continued) 6 New Orleans Pub. Serv., 833 F.2d at 586. occur as anticipated, or indeed may not occur at all.” (citation and internal quotation marks 7 See Texas v. United States, 523 U.S. 296, 300 omitted)). (1998) (“A claim is not ripe for adjudication if it 8 rests upon contingent future events that may not The motion to dismiss for mootness is (continued...) DENIED.