The Honorable Joseph F. Bataillon, United States District Judge for the District 1

of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 97-2979

__________

Red River Service Corp., *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

City of Minot, North Dakota, *

*

Appellee. *

__________

Submitted: March 9, 1998

 Filed: June 10, 1998

__________

Before WOLLMAN and LOKEN, Circuit Judges, and BATAILLON, District Judge. 1

__________

BATAILLON, District Judge.

When the City of Minot, North Dakota refused to allow Red River Service

Corporation (Red River), an Oklahoma waste transport business, to dispose of solid

waste from the Minot Air Force Base (MAFB) in the city’s landfill, Red River filed suit
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against the city in the District Court for the District of North Dakota seeking damages,

injunctive relief, and attorney’s fees. In its complaint, Red River alleged that the city’s

refusal to allow Red River access to the landfill violated the Commerce Clause, U.S.

Const. art. I, § 8, cl. 3; violated the Equal Protection Clause, U.S. Const. amend. XI;

violated 42 U.S.C. § 1983; and breached an oral contract.

I.

Red River appeals from the district court’s denial of its motion for partial

summary judgment and the granting of the City of Minot’s motion for summary

judgment. 

The district court held that Minot was not subject to the constraints of the

Commerce Clause because it operated the landfill just as any private operator would.

Hence, the city was a “market participant” rather than a “market regulator” and, as

such, it had the right to sell space in the landfill to whomever it chose. 

On Red River’s equal protection claim, the district court noted that Red River

never asserted membership in a suspect class nor claimed that Minot was violating its

fundamental rights. Minot’s denial of access was, therefore, subject only to rational

basis scrutiny. The court held that preserving space in the landfill for citizens of Minot

was a rational reason for the city to deny Red River access. 

The district court also ruled that any oral contract between Red River and Minot

was barred by the North Dakota statute of frauds requiring that contracts that cannot be

performed in a year must evidenced by a writing. Since the alleged oral contract was

apparently co-terminous with Red River’s five-year contract with MAFB, the court held

that it could not have been performed within a year.
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Finally, the district court noted that while the doctrine of estoppel could be

applied against the government under North Dakota case law, it was to be applied only

after a careful weighing of the equities involved. The district court declined to apply the

doctrine in this case because Red River had failed to obtain solid assurances from Minot

that it could use the city’s landfill before it bid the five-year contract with MAFB.

We review a grant of summary judgment de novo, applying the same standards

as the district court. See Rabushka ex rel. United States v. Crane Co., 122 F.3d 559,

562 (8th Cir. 1997), cert. denied, 118 S. Ct. 1336 (1998). Summary judgment is

appropriately granted if the evidence, viewed in the light most favorable to the

nonmoving party, demonstrates that no genuine issue of material fact exists and that the

moving party is entitled to judgment as a matter of law. State Farm Mut. Auto. Ins. Co.

v. Shahan, 1998 WL145925 (8th Cir. 1998).

Red River contends that the district court erred: 1) in finding that Minot is a

market participant” rather than a “market regulator”; 2) in finding that Minot did not

violate Red River’s equal protection rights under the United States Constitution by

allowing other waste transport businesses from outside of the city to use the landfill; 3)

in finding that Minot breached an oral contract with Red River which allowed Red

River access to the landfill; and 4) in failing to apply the doctrine of estoppel with

respect to the Red River’s contract claim. 

We affirm.

II.

The City of Minot owns and operates a municipal landfill. Beginning in 1993,

Minot began to grapple with serious policy considerations involving the landfill. J.A.

at 162. Both the Public Works and Safety Committee of the Minot City Council and the
Examples of inert waste include construction and demolition material such as 2

metal, wood, bricks, masonry and cement concrete, tires, tree branches, bottom ash

from coal fire boilers and waste coal fines from air pollution control equipment. Minot

Code § 14-1, “Inert waste.”

While the city council did agree in April 1997 to accept for six months waste 3

from the Grand Forks, North Dakota area following the disastrous spring floods of that

year, this agreement resulted from an emergency request from the North Dakota State

Health Department. J.A. at 158. As the appellee notes, however, no waste from the

Grand Forks area was ever deposited in the Minot landfill. Appellee’s Br. at 16.

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Yard Waste Ad Hoc Committee debated over the course of several years what types of

waste and how much should be allowed into the landfill, which waste haulers should be

allowed to dump into the landfill, and what charges should be imposed on those using

the landfill. By early 1994, both groups had questioned whether Minot could continue

to take waste from outside the city. J.A. at 87, 96, 113, 114. Much of the debate

concerned disposal of municipal (also called domestic or household) solid waste,

putrescible matter such as the remnants of meals, and yard waste, grass clippings and

other organic materials collected from domestic residences. Municipal solid waste is

expensive to handle since, unlike inert waste, it requires leachate collection systems and

ground water monitoring. See Minot Code § 14-1, “Inert waste.” 2

To extend the useful life of its landfill, the city council formally decided in late

1996 that it would accept only municipal solid waste generated by its own citizens and

by certain non-citizen haulers who were grandfathered in under the new arrangement.3

As a result of this evolving policy, the city council further decided that it would not

accept in its landfill the estimated 5,000 tons a year of municipal solid waste that Red

River collected from MAFB even though it had “ample room” for the waste. J.A. at

129, 142, 155. Minot allowed Red River and other haulers to dump inert waste --

construction debris -- from MAFB and elsewhere in the landfill. Aff. of Alan M. Walter,

J.A. at 193. The volume of inert waste brought to the landfill is “minuscule”
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compared to the volume of municipal solid waste that might find its way to the landfill

were open dumping allowed. Appellant’s Br. at 17.

At the time the city council decided not to accept Red River’s solid waste from

MAFB, however, Red River already had bid a five-year contract to haul MAFB’s solid

waste, apparently based on the belief that Minot would accept the waste. J.A. at 143.

Red River claims that it bid the MAFB contract only after it received quotes from the

city on usage rates and written assurances from the city’s director of public works that

Red River could use the landfill. J.A. at 131.

III.

Red River argues that Minot’s decision not to accept the solid waste from MAFB

in its municipal landfill violates the Commerce Clause because Minot is a market

regulator rather than a market participant. We disagree.

The Commerce Clause grants Congress the power to regulate commerce among

the states. It primarily has been applied to state taxes and regulatory measures that

restrict free trade by imposing burdens on out-of-state economic interests. Reeves, Inc.

v. Stake, 447 U.S. 429, 440 (1980). This limitation on state power, frequently called the

“dormant” Commerce Clause, “prohibits economic protectionism -- that is, regulatory

measures designed to benefit in-state economic interests by burdening out-of-state

competitors.” New Energy Co. v. Limbach, 486 U.S. 269, 273 (1988).

When a state or local government acts as a market participant rather than a

market regulator, however, its conduct is outside the reach of the Commerce Clause.

Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 809-810 (1976) (applying doctrine

to Maryland program paying a bounty for scrapping junk cars titled in Maryland, even

though out-of-state processors faced stricter documentation requirements, since

Maryland was similar to a private company bidding up the price of scrap); Reeves, 447
This circuit has applied the doctrine several times in recent years, but not in a 4

waste context. See, e.g., Four T’s Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d

909 (8th Cir. 1997) (commission was a market participant when it provides concession

areas and assesses concession fees); Independent Charities of America, Inc. v.

Minnesota, 82 F.3d 791 (8th Cir. 1996) (state acted as an employer in the charitable

fund raising market by restricting the charities that may solicit from state employees in

the state workplace during business hours); and Chance Mgt., Inc. v. South Dakota, 97

F.3d 1107 (8th Cir. 1996) (state acted within the gaming market to impose a residency

requirement on all applicants for operators’ licenses for video lottery machines). 

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U.S. at 440 (applying doctrine when, during a national shortage, South Dakota sold

cement from a state-owned plant only to its residents); White v. Massachusetts Council

of Constr. Employers, Inc., 460 U.S. 204, 207 (1983) (allowing Boston to require firms

seeking public construction contracts to have a workforce of at least fifty percent

Boston residents); South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 93

(1984) (plurality) (blocking Alaska from requiring that timber taken from state lands be

processed within the state before export since the requirement attempted to control the

market after sale of the timber). If a state or local government is a market participant in

a business, it may pursue its own economic interests free from the constraints imposed

by the Commerce Clause within the market in which it is a participant. Wunnicke, 467

U.S. at 97. This freedom includes the right to choose its own trading partners without

regard to whether its choices discriminate against out-of-state businesses, id. at 99, or

favor its own citizens, Alexandria Scrap, 426 U.S. at 810. In short, the Commerce

Clause does not “limit the ability of the States themselves to operate freely in the free

market.” Reeves, 447 U.S. at 437.

While the Supreme Court has not recently revisited the doctrine in a waste

context, several lower courts have embraced it when state or local governments have

engaged in proprietary activities involving waste that “burden” private economic

interests. For example, in a closely analogous case, the United States Court of Appeals 4

for the Third Circuit held that a county acted as a market participant rather than a
-7-

market regulator when, in an effort to preserve space in its landfill for local residents,

it decided to charge a higher rate to receive and dispose of waste generated outside the

county and five nearby counties and to limit the daily amounts that an out-of-state waste

processor could dump. The volume limitations caused the out-of-state processor

economic hardship because it was forced to send its waste to more distant (and hence

more costly) disposal sites. The court found that the county was a market participant in

the disposal services market. The price and volume conditions that the county imposed

governed only the landfill operated by the county and applied only to the narrow,

immediate market of the county and its neighbors. Swin Resource Sys., Inc. v. Lycoming

County, 883 F.2d 245, 250 (3d Cir. 1989). 

In another illustrative case, private waste disposal companies brought suit under

the Commerce Clause against three cities that had enacted ordinances restricting the

collection and disposal of solid waste in a four-county region. Each city was a

participating member of the public, non-profit Southeast Alabama Solid Waste

Authority. One ordinance required that all solid waste generated within the city must be

disposed of at the Authority’s facility. The second ordinance was similar to the first but

it also vested in the city title to all solid waste generated within the city and prohibited

private contracts between waste collectors and waste generators. The third ordinance

was also similar to the first but it permitted waste collectors and haulers the option of

taking waste out-of-state so long as they complied with reporting requirements not

imposed if waste was deposited in the Authority’s facility. The district court found that

none of the cities could claim the market participant exception since the cities were

“not purchasers as was Maryland in Alexandria Scrap, or sellers as was South Dakota

in Reeves, Inc. v. Stake, or bona fide interest holders in construction projects as was

Boston in White v. Massachusetts Council.” Waste Recycling, Inc. v. Southeast

Alabama Solid Waste Disposal Authority, 814 F. Supp. 1566, 1572 (M.D. Ala. 1993).

The court said that the intent behind the ordinances and the cities’ contracts with the

Authority was “not individual market participation but broad market regulation. . . .

[T]he ordinances impermissibly regulate outside the market in which the
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cities are actual participants.” Id. at 1573. See National Solid Waste Mgt. Ass’n v.

Williams, 966 F. Supp. 844 (D. Minn. 1997) (holding state acted as market participant

in the collection and management of waste even though contractors hired by public

entities had to comply with the county’s solid waste management plan); Barker Bros.

Waste, Inc. v. Dyer County Legislative Body, 923 F. Supp. 1042 (W.D. Tenn. 1996)

(holding county was market participant in the trash hauling market, even though it

contracted out garbage collection services in an exclusive contract with a private

hauler). 

Here, Minot has chosen, in an effort to prolong the useful life of its landfill, to

limit those who can dispose of municipal solid waste in its landfill. Significantly, Minot

has not attempted to regulate the flow of waste beyond its own market nor to require

that all waste generated in the Minot market be deposited in the Minot landfill. Red

River obviously will suffer serious economic consequences as a result of the city’s

decision because it will be forced to haul the municipal solid waste from MAFB to more

distant landfills, thus increasing its costs. Minot is not obligated, however, to vouchsafe

Red River’s economic health. As a market participant, it has the freedom to choose its

trading partners without regard to Red River’s contractual obligations to MAFB.

Red River states that the district court “misconstrued the law” in applying the

market participant doctrine to Minot’s actions. Appellant’s Brief at 26. To establish

that Minot is instead a market regulator, Red River advances several unpersuasive

theories. 

First, citing Camps Newfound/Owatonna, Inc. v. Harrison, 117 S. Ct. 1590

(1997), Red River asserts that because public funds established and now support the

landfill, the city cannot be considered a market participant. In Camps

Newfound/Owatonna, the Court held that a Maine property tax exemption scheme for

charitable institutions incorporated in Maine did not fall within the market participant
-9-

exception to the Commerce Clause because it excluded organizations operated

principally for the benefit of nonresidents. Creating a tax program to subsidize a

particular industry, such as charitable and benevolent institutions, is not a proprietary

activity nor the “sort of direct state involvement in the market that falls within the

market-participation doctrine.” Id. at 1606-07. Further, the Court noted that the tax

exemption statute swept far more broadly than the narrow, discrete activities at issue

in Alexandria Scrap and Reeves. Hence, the tax scheme “must be viewed as action

taken in the State’s sovereign capacity rather than a proprietary decision to make an

entry into all of the markets in which the exempted charities function.” Camps

Newfound/Owatonna at 1607. See also New Energy Co., 486 U.S. 269, 277, 278 (1988)

(holding Ohio’s assessment and computation of fuel sales tax was a “primeval

governmental activity” that “cannot plausibly be analogized to the activity of a private

purchaser,” even if it produces a subsidy). 

Camps Newfound/Owatonna is hardly support for Red River’s position. If the

public funds that paid for the construction projects in Boston did not trigger application

of the Commerce Clause in White, then surely the public funds that paid for the creation

and maintenance of the Minot landfill will not trigger it either. In deciding to limit

access to its landfill to residents and grandfathered entities, Minot has not engaged in

the sweeping regulation characteristic of “a State[] acting in its distinctive governmental

capacity,” New Energy Co., 486 U.S. at 277, but instead is functioning in a true

proprietary capacity. Minot is running a trash disposal business involving one landfill

it has built and maintained. It does not attempt to manage the flow of waste outside of

its geographic market. It does not impose conditions that “have substantial regulatory

effect outside of [its] particular market.” Wunnicke, 467 U.S. at 97. It does not keep out

waste haulers or processors that might seek to enter the Minot market. It does not even

dictate that residents of Minot must use the landfill for their trash, thus laying waste, so

to speak, to both Red River’s “primeval governmental activity” and “regulatory

scheme” arguments. As a business, Minot may freely choose the parties to whom it

wishes to sell space in its landfill.
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Red River also argues that the market participation doctrine should not apply

because Minot is hoarding a scarce natural resource: space in a landfill. The Supreme

Court noted in passing in Alexandria Scrap that the right of states to claim the market

participation exemption might be limited if they “hoard resources which by

happenstance are found there.” 447 U.S. at 444. In Reeves, however, the Court applied

the market participation doctrine even though South Dakota was restricting purchase of

a nationally scarce commodity it produced -- cement -- to its own residents. Similarly,

the Court upheld Nebraska’s scheme to control the sale of groundwater since “given

[Nebraska’s water] conservation efforts, the continuing availability of ground water in

Nebraska is not simply happenstance; the natural resource has some indicia of a good

publicly produced and owned in which a State may favor its own citizens in times of

shortage.” Sporhase v. Nebraska, 458 U.S. 941, 957 (1982). If Nebraska could favor

its residents in times of ground water shortages simply because of the state’s water

conservation efforts, then Minot should certainly be able to favor its residents’ use of

its landfill because of the effort and expense Minot expended in developing the landfill.

See Swin, 883 F.2d at 253. See also Baldwin v. Fish & Game Comm’n, 436 U.S. 371,

389-90 (1978) (Montana could charge non-residents substantially more for elk hunting

licenses because state devoted resources to elk conservation). 

Whether a landfill is a natural resource and whether a natural resources exception

exists in a solid waste disposal case as a matter of law are both unclear. See, e.g.,

Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, 107 (1994). We

decline, however, to find that the Minot landfill is a “happenstance” natural resource

that is geologically peculiar to North Dakota such as coal or oil or ground water would

be. Siting a landfill requires a convergence of political choices, economic initiatives,

environmental demands, and geological realities. Because Minot has expended effort

and expense to develop and maintain the landfill, it is a “good publicly produced and

owned” in which the city may favor its residents.
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Finally, Red River earnestly argues that the outcome of this case should be

governed by “flow control” cases rather than the market participant doctrine. When a

state enacts a flow control measure, it attempts to manage the waste stream for some

public good, usually to finance local disposal and processing facilities or to protect the

environment by extending the useful life of landfills. However, if the measure is also a

protectionist measure that deprives competitors, whether in-state or out-of-state, of

access to a local market, then the measure violates the Commerce Clause. Philadelphia

v. New Jersey, 437 U.S. 617 (1978); C&A Carbone, Inc. v. Clarkstown, 511 U.S. 383

(1994). 

Red River’s reliance on the many flow control cases it cites in its brief is

unfounded since those cases deal with fundamentally different factual settings than the

present situation. For example, in Carbone, Clarkstown built a new solid waste transfer

station to receive bulk solid waste and to separate recyclable from nonrecyclable waste.

To guarantee that the amount of waste coming into the new station would be sufficient

to pay for the cost of its construction, Clarkstown enacted an ordinance requiring that

all nonhazardous solid waste generated within the town be deposited in the new transfer

station. Waste processors and recyclers in the town who received bulk solid waste

brought suit because under the ordinance their only option was to send the

nonrecyclable solid waste to the transfer station for processing and then to pay a tipping

fee for this waste from which they had already removed the recyclable materials. They

could no longer ship their nonrecyclable solid waste to cheaper processors in other

locales. The Court held that this local processing requirement discriminated against

interstate commerce. Such discrimination is per se invalid unless the state or

municipality “can demonstrate, under rigorous scrutiny, that it has no other means to

advance a legitimate local interest.” Id. at 392. Clarkstown protested that the ordinance

addressed health and environmental problems, but the Court noted that “any number”

of nondiscriminatory alternatives could achieve the same effect without obstructing the

flow of interstate commerce. Id.
5For an interesting discussion applying the market participant doctrine to a flow

control ordinance, see Barker Bros. Waste, Inc. v. Dyer County Legislative Body, 923

F. Supp. 1042, 1054 (W.D. Tenn. 1996). The court observes that for the doctrine to

apply to such an ordinance, “the governmental entity must participate in both the trash

hauling business and the trash disposal business.”

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In most flow control cases, the challenged state or local regulations intrude on

transactions between willing third-party buyers and third-party sellers of waste materials

or disposal services. See, e.g., Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t

of Nat’l Resources, 504 U.S. 353 (1992) (invalidating as a protectionist measure statute

banning unauthorized acceptance of waste from outside a county because it protected

local waste producers from competition from out-of-state producers seeking to use local

disposal areas); Waste Sys. Corp. v. Martin County, 985 F.2d 1381 (8th Cir. 1993)

(holding ordinances requiring delivery of all in-county compostable solid waste to

counties’ facility violated Commerce Clause because ordinances discriminated against

interstate commerce by insulating the facility from competition with cheaper out-of-state

alternatives); Diamond Waste, Inc. v. Monroe County, 939 F.2d 941(11th Cir. 1991)

(holding county resolution banning new operator from importing any out-of-county

waste into the county’s landfill violated Commerce Clause because alternative measures

could have achieved county’s goals with less effect on interstate commerce). But here,

no third-party seller exists. Minot is itself the seller -- a market participant in the waste

disposal business. Red River seeks to buy space in Minot’s landfill for the MAFB

waste, but Minot simply does not wish to sell to Red River. Minot has in no way

discriminated against the “flow” of interstate commerce. Because we find that the

market participation doctrine applies, we do not need to further discuss whether Minot’s

policy has a discriminatory effect on interstate commerce. We hold that it does not. 5

IV.
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Red River argues that Minot’s decision to refuse Red River’s MAFB municipal

solid waste violates its equal protection rights under the Fourteenth Amendment because

Minot’s decision on its face discriminates against out-of-city waste processors and

haulers. Red River believes that the “rigorous scrutiny” standard described in Carbone

should invalidate Minot’s decision since other less discriminatory methods of achieving

Minot’s goals of preserving space in its landfill exist. Given our decision in the

preceding section that Minot has not discriminated against the “flow” of interstate

commerce, we disagree that the “rigorous scrutiny” standard applies in this situation.

Minot has neither targeted nor excluded a suspect class with its decision, Independent

Charities, Inc. v. Minnesota, 82 F.3d 791, 797 (8th Cir.), cert. denied, 117 S. Ct. 982

(1996), nor impinged on a fundamental interest, Swin, 883 F.2d at 255, so any review

using a “strict” or “rigorous” scrutiny standard would be inappropriate. Instead, we find

that the rational basis standard governs Red River’s equal protection challenge.

Alexandria Scrap, 426 U.S. at 813-14. Under this standard, legislation is presumed

valid if the classification drawn by the legislation is rationally related to a legitimate

state interest. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).

Red River has the burden of proving “that the classification is so attenuated to its

asserted purpose that the distinction it draws is wholly arbitrary and irrational.” Chance

Mgt., Inc. v. South Dakota, 97 F.3d 1107, 1114 (8th Cir. 1996), cert. denied, 117 S. Ct.

1083 (1997) (citing City of Cleburne, 473 U.S. at 446). Red River must also negate

“every conceivable basis which might support” the classification. Independent

Charities, 82 F.3d at 797 (citing FCC v. Beach Communications, Inc., 508 U.S. 307,

315 (1993)). Red River has not carried its burden. 

The record clearly demonstrates that the Minot City Council has struggled since

1993 with difficult landfill issues. Its decision to no longer accept municipal solid waste

from anyone but its residents and existing customers is rationally related to its goal of

preserving the useful life of its landfill for its residents, even though potential new

customers, out-of-city haulers and processors like Red River, are excluded. After all,
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“[a]ny hole, no matter how large, can only accept a specific volume of garbage.” Swin,

883 F.2d at 256. The preference created for existing customers does no more than

recognize and protect their reliance interest. See New Orleans v. Dukes, 427 U.S. 297,

304-306 (1976) (holding grandfather provision of an ordinance prohibiting food sales

by pushcart vendors in the French Quarter did not violate the Equal Protection Clause

because the ordinance was rationally related to the purpose of preserving the area’s

appearance and customs).

V.

Finally, Red River claims 1) that Minot is estopped from denying that it has a

contract with Red River to accept delivery of MAFB municipal solid waste at the Minot

landfill, and 2) that Minot has breached that contract. Neither the facts nor the law

supports those claims.

Red River claims that an oral contract was created when it obtained quotes on

tipping fees from the city for municipal solid waste. The district court ruled, however,

that such a contract would be void under the North Dakota statute of frauds which

makes invalid any oral contract “that by its terms is not to be performed within a year

from the making thereof.” N.D. Cent. Code § 9-06-04 (1997). The court said that any

contract between Red River and the city obviously could not be performed in a year

because it would be co-terminous with the five-year contract between Red River and

MAFB. 

No signed writing exists here but Red River argues that part performance of the

oral contract removes it from the statute of frauds. Poyzer v. Amenia Seed & Grain Co.,

409 N.W.2d 107, 111 (N.D. 1987). We find no such part performance. The existence

of an oral contract is always a question of fact. Johnson Farms v. McEnroe, 568

N.W.2d 920, 924 (N.D. 1997). The city concedes that someone in the public works

department may have given Red River a quote on tipping fees while Red River
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was preparing its bid for the MAFB contract since many parties call the department

requesting information about tipping fees and Red River may have been one of them.

The city never had any formal communication with Red River about landfill rates or

access, however, until after Red River had been awarded the MAFB contract. Aff. of

Alan M. Walter, J.A. at 194. While the city accepts Red River’s inert waste, the dispute

here has, from the beginning, concerned only municipal solid waste from MAFB. Since

Minot never allowed Red River to deposit any municipal solid waste in the Minot

landfill, even before formally denying its request in December 1996, Red River could

not have partially performed an oral contract to deposit municipal solid waste in the

landfill. No such contract existed, despite statements to the contrary in the affidavit of

Red River’s president. Aff. of James Smith, J.A. at 45.

Red River also urges us to find that the city should be estopped from denying that

a contract exists between it and Red River for the disposal of MAFB’s solid municipal

waste. Even in the unlikely event we were to find that Red River could successfully

bring an estoppel suit against a governmental body such as the City of Minot, see

Blocker Drilling Canada, Ltd. v. Conrad, 354 N.W.2d 912 (N.D. 1984) -- a question

we need not decide -- estoppel simply does not exist on these facts. Under North

Dakota law, the party claiming estoppel must prove that: 1) it did not and could not

know the truth of the facts in question; 2) it relied, in good faith, upon the conduct or

statements of the party to be estopped; and 3) based on that reliance it acted or did not

act with the result that it changed its position or status, to its injury, detriment, or

prejudice. Id. at 920.

Red River’s claim that the city should be estopped from denying the contract is

apparently based on an October 21, 1996, letter that the Minot Director of Public

Works, Alan M. Walter, sent to Red River following its request to put MAFB’s

municipal solid waste in the Minot landfill. In the letter, Walter wrote:
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You have requested the use of the City of Minot landfill for hauling

municipal solid waste from the Minot Air Force Base. We have

researched the record on this request and find that the City Council did

not take any formal action with regards to limiting solid waste from what

was then Region II in North Dakota. At this time, I cannot state that you

can not [sic] bring the solid waste to our landfill. 

I am sending your letter and a memo to the City Council with your

request. In the memo I have explained the history of the use of our landfill

and the comments made in 1994 about the use of the landfill with regard

to Region II.

The Public Works Committee of the City Council meets on October 31,

1996.

At this point there is no council action prohibiting the use of the landfill

for Minot Air Force Base. If you need further information or have further

information, please contact me.

J.A. at 70. Just as it was impossible to find an oral contract in the possibility that the

city had quoted rate information to Red River over the phone, it is difficult to find in

this letter anything to support a claim of estoppel. On its face, the letter nowhere

contains a clear statement of permission or invitation. The letter nowhere “welcomed

RRSC’s [Red River’s] business,” as Red River claims. Appellant’s Br. at 11. The letter

nowhere states terms, conditions, rates, or other information one would expect in a

letter creating a contract. Red River had been in the Minot area long enough to have bid

a contract with MAFB -- certainly long enough for a national waste disposal business

to be charged with the knowledge that the city council was frequently and publicly

discussing landfill issues. Red River can hardly claim that it did not know or could not

have found out that Minot was contemplating limits on access to the landfill. 
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Further, no reasonable entrepreneur would rely on the hesitant and ambiguous

language in the letter that the public works director sent to Red River. Walter wrote that

his research of the record showed that the Minot City Council had not taken “formal”

action on limiting solid waste disposal in the landfill. For eyes that will see, this

language indicates that something had happened in Minot -- perhaps some “informal”

action. In the very next sentence, Walter qualifies this absence of “formal action” by

telling Red River that “[a]t this time, I cannot state that you can not bring solid waste

to our landfill.” At the very least, this sentence, however unartfully phrased, should

have caused Red River to inquire further about whether Minot was planning formal

action that would prevent Red River from bringing the MAFB solid municipal waste

to the landfill, especially given Walter’s statement in the next paragraph that he would

be sending Red River’s request on to the city council, a clear indication that he did not

have the authority to grant Red River access to the landfill. See also Aff. of Alan M.

Walter, J.A. at 194-5. Moreover, Walter’s affidavit indicates that Red River had actual

notice that the city would not accept the MAFB municipal solid waste.

Red River could not in good faith have interpreted my letter of October

21, 1996, as implicit acceptance of its waste stream, for at the same time

as I was saying therein that ‘I cannot state’ that its waste was prohibited,

I certainly was not allowing them to use the landfill! They well knew I

wasn’t allowing them to use the landfill (except for inert construction

wastes) as evidenced by their repeated and vigorous complaints to me

about their exclusion. 

J.A. at 193. Red River considerably overstates its case with the comment that “Minot

had a duty to speak out, rather than lulling an out-of-state citizen into a position of
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detriment.” Appellant’s Br. at 45. Because it did not like the message, Red River

simply failed to hear what the City of Minot was telling it.

VI.

For the foregoing reasons the judgment of the district court is affirmed in its

entirety.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.