United States Court of Appeals

Fifth Circuit

FILED

July 28, 2003

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

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m 02-40880

m 02-41155

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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.
2

_________________________

Appeal from the United States District Court

for the Southern District of Texas

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Before SMITH, DENNIS, and CLEMENT, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant officials of the Texas Commission on Environmental Quality (“TCEQ”) appeal (1) a preliminary injunction precluding

them from considering a landfill permit application and (2) the denial oftheir motion to dismiss. Concluding that this dispute is not ripe

for adjudication, we vacate the injunction and

reverse and remand.

I.

In 1996, TSP Development, Limited, a

Texas limited partnership, filed a permit application with the TCEQ requesting approval

to construct a landfill facility capable of handling three classes of nonhazardous industrial

solid waste (“NISW”), the most noxious of

which is Class I.1 Plaintiffs, who are owners

or occupiers of land within one mile of the

proposed landfill, actively opposed the application via administrative proceedings before the

State Office of Administrative Hearings

(“SOAH”), to which the matter had been referred for adjudication.

In April 2002, plaintiffs sued, alleging violations of their rights under the Fifth and Fourteenth Amendments. Contending that no ascertainable standards exist to guide the agency’s ultimate determination whether to approve the application, plaintiffssought preliminaryand permanent injunctions barring Robert

Huston, the presiding officer of the TCEQ;

Ralph Marquez and Kathleen White, TCEQ

commission officers; Margaret Hoffman, the

TCEQ Executive director; and Sheila Taylor,

director of the SOAH (collectively “defendants” or “agency defendants”), from further

considering the application until additional

rules and regulations governingNISWlandfills

are promulgated. 

The agency defendants filed a motion to

dismiss and a response in opposition to the application for preliminary injunction; the court

denied the motion and issued the preliminary

injunction. The agency defendants appeal the

preliminary injunction under 28 U.S.C.

§ 1292(a)(1), and they appeal the denial of

their motion to dismiss pursuant to the district

court’s certification of that order under

§ 1292(b) and this court’s grant of permission

to take an interlocutory appeal.

II.

1 Class I NISW is industrial solid waste that

does not meet the definition of hazardous waste

promulgated by the EPA but, because of its concentration or physical or chemical characteristics,

is toxic, corrosive, flammable, a strong sensitizer

or irritant, or a generator ofsudden pressure by decomposition, heat, or other means, and may pose a

substantial present or potential danger to human

health or the environment if improperly processed,

stored, transported, or otherwise managed. See

TEX. HEALTH & SAFETY CODE § 361.003(2)-(3).
3

Defendants contend that the district court

erred in exercising jurisdiction, because the

matter was not yet ripe for resolution. We review ripeness determinations de novo.

Groome Res. Ltd., L.L.C. v. Parish of

Jefferson, 234 F.3d 192, 198-99 (5th Cir.

2000).

“A court should dismiss a case for lack of

‘ripeness’ when the case is abstract or hypothetical.” New Orleans Pub. Serv., Inc. v.

Council of New Orleans, 833 F.2d 583, 586

(5th Cir. 1987). “The key considerations are

‘the fitness of the issues for judicial decision

and the hardship to the parties of withholding

court consideration.’” Id. (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 149 (1967)).

“A case is generally ripe if any remaining questions are purely legal ones; conversely, a case

is not ripe if further factual development is

required.”2

In Smith v. City of Brenham, 865 F.3d 662

(5th Cir. 1989), this court addressed similar

claims: Plaintiffs alleged that the city’s attempts to obtain approval to operate a landfill

constituted an uncompensated taking and violated their rights to due process. Id. at 663.

We concluded that the due process challenge

to landfill permitting procedures by adjacent

propertyowners was “premature”where “[n]o

deprivation of property . . . ha[d] yet occurred

. . . . [and] certainly [would] not occur at least

until the permit process . . . ha[d] run its

course.” Id. at 664 (citing Williamson County

Regional Planning Comm’n v. Hamilton

Bank, 473 U.S. 172, 199-200 (1985)).

As plaintiffs note, however, Hidden Oaks

Ltd. v. City of Austin, 138 F.3d 1036 (5th Cir.

1998), limits Smith’s application here. In Hidden Oaks, id. at 1045 n.6, we held that

proceduraldue process claims not arising from

or ancillary to a takings claim are not subject

to the ripeness constraints set forth in Williamson. Because the instant plaintiffs have

not asserted a takings claim, the ripeness test

articulated in Williamson County and applied

in Smith does not control.

This does not end the ripeness inquiry,

however. Although plaintiffs’ claim need not

satisfy the specific test applicable to takings

claims, it still must comply with the principles

governing ripeness determinations generally.3

Those principles direct courts “[to] dismiss a

case for lack of ‘ripeness’ when the case is abstract or hypothetical.” New Orleans Pub.

Serv., Inc. v. Council of New Orleans, 833

F.2d 583, 586 (5th Cir. 1987). In making this

determination, “[t]he key considerations are

‘the fitness of the issues for judicial decision

and the hardship to the parties of withholding

court consideration.’”4“A case is generally

ripe if any remaining questions are purely legal

ones; conversely, a case is not ripe if further

factual development is required.” Id. at 587.

Under these principles, this dispute is not

2

Id.; see also Texas v. United States, 523 U.S.

296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon contingent future events

that may not occur as anticipated, or indeed may

not occur at all” (citation and internal quotation

marks omitted)).

3

 See John Corp. v. City of Houston, 214 F.3d

573, 586 (5th Cir. 2000) (“In determining that

[plaintiffs’] procedural dueprocess claimis unripe,

we do not apply Williamson County per se, but

rather the general rule that a claim is not ripe if

additional factual development is necessary.”).

4

Id. at 586-87 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
4

ripe for judicial resolution. The plaintiffs contend they have been injured by TCEQ’sfailure

to afford them due processin its consideration

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 oflife, liberty, or propertywithout

such procedural protections.5 

Even assuming plaintiffs have identified

constitutionally protected property interests

that would be harmed by approval of the permit application, they have not suffered any deprivation, because the TCEQ permitting process 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”6and thus unripe for judicial

review.7

The injunction is VACATED, and this matter is REVERSED and REMANDED for any

necessary proceedings.8

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 claimunder § 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’interest, and that he has been ‘deprived’ of that protected interest by some form of ‘state action.’”

(citation and internal quotation marks omitted)).

6

 New Orleans Pub. Serv., 833 F.2d at 586.

7

See Texas v. United States, 523 U.S. 296, 300

(1998) (“A claim is not ripe for adjudication if it

rests upon contingent future events that may not

(continued...)

7

(...continued)

occur as anticipated, or indeed may not occur at

all.” (citation and internal quotation marks

omitted)).

8 The motion to dismiss for mootness is

DENIED.