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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### C ARL 

### M ONK 

### ; C ONSTANCE 

### M ONK 

### ; P ATRICK 

### M C 

### B RIDE 

### ; G ARY 

### G RAYBEAL 

### ;

J IM 

### L OERCH 

### ; C HRIS 

### L OTT 

### ; D ARLENE 

### L OTT 

### ; D AVID 

### B ROCK 

### ; K AY 

### G LANDT 

### ;

P ATRICIA 

### W RIGHT 

### -C OMBS 

### ; K AREN 

### C AUDLE 

### M UDD 

### ; D ARIO 

### G ARCIA 

### ;

C HESTER 

### B IENIK 

### ; J OY 

### B RACEY 

### ; T ED 

### H OLLINGSWORTH 

### ; AND 

### J OHNNIE 

### J ENNINGS



### ,

Plaintiffs-Appellees,

VERSUS



### R OBERT 

### J. H USTON



### , ETC



### ., ET AL



### .,

Defendants,



### R OBERT 

### J. H USTON



### , I N H IS O FFICIAL C APACITY AS

C HAIRMAN OF THE T EXAS N ATURAL R ESOURCE C ONSERVATION C OMMISSION ;



### R.B. R ALPH 

### M ARQUEZ



### , I N H IS O FFICIAL C APACITY AS

C OMMISSIONER OF THE T EXAS N ATURAL R ESOURCE C ONSERVATION C OMMISSION ;



### K ATHLEEN 

### H ARTNET 

### W HITE



### , I N H ER O FFICIAL C APACITY AS

C OMMISSIONER OF THE T EXAS N ATURAL R ESOURCE C ONSERVATION C OMMISSION ;

AND



### J EFF 

### S AITAS



### , I N H IS O FFICIAL C APACITY AS

THE E XECUTIVE D IRECTOR OF THE T EXAS N ATURAL R ESOURCE C ONSERVATION C OMMISSION

,



### Defendants-Appellants.2 _________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

Before S MITH , D ENNIS , and C LEMENT

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Defendant offi cials 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 of their 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 limit

ed partnership, filed a per mit application with

t he TCEQ requesting approval

to construct a landfi ll facility capable of handling three classes of nonhazardous industrial

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

which is Cla ss I. 1 Plaintiffs, who are owners

or occupi ers 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

t he 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 standar d s exist to guide the agency’s ultimat e determination whether to approve the application, plaint iffs sought preliminary and pe rm

anent injunctions barring Robert

Huston, the presiding o fficer of the TCEQ;

Ralph Marq uez and Kathleen White, TCEQ

commission officers; Margaret Hoffman, the

TCEQ Executive director; and Sheila Taylor,

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

considering the app lication until additional

rules and regulations governing NISW landfills

are promulgated.

The agency defendants filed a motio n to

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

denied the motion and issued the pre liminary

injunction. The agency defendants appeal the

preliminary injunction under 28 U.S.C.

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

their motion to dismiss pursuant to the district

cou rt ’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 indust rial solid waste that

does not m

e et 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 of sudden 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. S ee

T EX

. H EALTH & S AFETY C ODE § 361.003(2)-(3)

.3

Defendants conten d that the di stri ct court

erred in exercising jurisdictio n

, because the

matter was not yet ripe for resolution. We review ripen e ss determinations de novo

. Groome Res. Ltd., L.L.C. v. Pari sh of

Jefferson

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

. 2000).

“A court should dismiss a c ase for l ack of

‘ripenes s’ when the case is abstract or hypothetical.” N

ew Orleans Pub. Serv

. , Inc. v.

Council of New Orleans

, 8 33 F.2d 583, 586

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

‘the fitness of the is sues for judicial decision

and the hardship to the parties of withholding

court consideration.’” I d. (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 i f further factual development is

required.” 2

In Smith v. City of Brenham

, 865 F.3d 662

(5th Cir. 1989), this co urt 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 proce ss. I d. at 663.

We concluded that th e due process challenge

to landfill permitting procedures by adjacent

property owners 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 it s

course.” I

d. at 664 (citing Williamson County

Regional Planning Comm’n v. Hamilton Bank , 473 U.S. 172, 199-200 (1985)).

As plaint iffs n ote, however, H idden Oaks

Ltd. v. City of Austin

, 138 F.3d 1036 (5th Cir.

1998), limit s Smith ’s application here. In H idden Oaks

, id. at 1045 n.6, we held that

procedural due process claims not arising from

or ancillary to a takings claim are not su bject

to the ri p eness constraints set forth in Williamson

. Because the instant plaintiffs have

not asserted a takings claim, t he ripeness test

articulated in Williamson County and applied

in Smith does not control

.

This does not end the ripen ess inquiry,

however. Although plaint iffs’ claim need not

satisfy t he 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 abst ract or hy pothetical.” N ew Orleans Pub.

Serv

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

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

determination, “[t]he key conside rati ons are

‘the fit ness 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 rest s upon contingent future events

th at may not occur as anticipated, or indeed may

not occur at all” (citation a nd internal quotation

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

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

[plaintiffs’] procedural due process claim is unripe,

we d o not apply W

illiamson County per se, but

rather the general rule that a claim is n ot 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’s failure

to afford them due process in its consideration

of the landfill permit. The constitutional right

to due process is not, ho wever, an abstract

r ight to hearings conducted according to f air

procedural rules. Rather, it is the right not to

be deprived of life, liberty, or property without

such procedural protections. 5

Even assuming plaint iffs have identif i ed

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 ye t run its course. The

a pplication may or may not be granted , and

thus plaint iffs may or may not be harmed.

Therefore, until the TCEQ issues the permit,

t his disput e remains “abstract and

hypothetical” 6 and th us unripe for judicial

review. 7 The injunction is VACATED, and this matter is REVERSED and REMANDED for any necessary proceedings. 8

5 U.S. C ONST

. amend. XIV, § 1; see Baldwin v.

Daniels

, 250 F.3d 943, 946 (5th Ci r

. 2001) (“To

bring a procedural due process claim under § 1983,

a pla intiff 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 cla i m is not ripe for adjudication if it

rests upo n contingent future events that may not

(continued...) 7 (...continued)

occur as anticipated, or ind eed may not occur at

all.” (citation and internal quotation marks

omitted)).

8 The motion to dismiss for mootness is

DENIED.