Board of Com'Rs of Sumner County v. Bremby

• Decision Date: 25 July 2008
• Docket Number: No. 96,658.,96,658.
• Citation: 189 P.3d 494
• Parties: The BOARD OF COUNTY COMMISSIONERS OF SUMNER COUNTY, Kansas; Tri-County Concerned Citizens, Inc., A Kansas Not For Profit Corporation; and Dalton Holland, An Individual, Appellants, v. Honorable Roderick L. BREMBY, In His Official Capacity as Secretary of the Kansas Dept. of Health and Environment, The Kansas Dept. of Health and Environment, and Waste Connections of Kansas, Inc., A Kansas Corporation, Appellees.
• Court: Kansas Supreme Court

189 P.3d 494

The BOARD OF COUNTY COMMISSIONERS OF SUMNER COUNTY, Kansas; Tri-County Concerned Citizens, Inc., A Kansas Not For Profit Corporation; and Dalton Holland, An Individual, Appellants, v. Honorable Roderick L. BREMBY, In His Official Capacity as Secretary of the Kansas Dept. of Health and Environment, The Kansas Dept. of Health and Environment, and Waste Connections of Kansas, Inc., A Kansas Corporation, Appellees.

No. 96,658.

Supreme Court of Kansas.

July 25, 2008.

Robert V. Eye, of Irigonegaray & Associates, of Topeka, argued the cause, and Robert J. Vincze, of Law Offices of Robert J. Vincze, of Lone Tree, Colorado, and Kelly J. Kauffman, of Kauffman Law Office, of Topeka, were with him on the briefs for appellants Board of County Commissioners of Sumner County, Kansas, Tri-County Concerned Citizens, Inc., and Dalton Holland.

John Terry Moore, of Moore Martin, L.C., of Wichita, argued the cause and was on the briefs for appellee Waste Connections of Kansas, Inc.

Nancy L. Ulrich, of Kansas Department of Health and Environment, was on the brief for appellees Secretary of KDHE and KDHE.

W.C. Blanton, of Husch Blackwell Sanders LLP, of Kansas City, Missouri, and Mark D. Calcara and Mark A. Rondeau, of Watkins Calcara, Chtd., of Great Bend, were on the brief for amicus curiae Holcomb Common Facilities, LLC.

The opinion of the court was delivered by DAVIS, J.:

The Secretary of the Kansas Department of Health and Environment (KDHE), Roderick Bremby, issued a permit to Waste Connections of Kansas, Inc. (Waste Connections), for the construction of a landfill in Harper County, Kansas. The Board of Commissioners of Sumner County, Kansas (the Board), Tri-County Concerned Citizens, Inc. (Tri-County), and Dalton Holland filed a petition for review in district court under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., challenging the issuance of the permit. The district court dismissed their petition for lack of standing. The Kansas Court of Appeals reversed, concluding that appellants each had standing as a party to the agency proceedings under the KJRA. Board of Sumner County Comm'rs v. Bremby, 38 Kan.App.2d 557, 168 P.3d 1034 (2007). We granted Waste Connections' petition for review, affirm the decision of the Court of Appeals reversing the district court, and remand the case for further proceedings.

FACTS

In August 2002, Waste Connections applied to the KDHE for a permit to construct and operate a municipal solid waste landfill in Harper County. Included in the application was a site plan prepared by Golder Associates, which included an analysis of the suitability of the location—commonly known as Plumb Thicket—for the proposed landfill.

In September 2002, the Board commissioned a study by Terrane Resources Co. (Terrane) to evaluate the Golder site plan and analysis of the Plumb Thicket location. Terrane concluded that Waste Connections' plan had numerous regulatory and environmental deficiencies. The Terrane report was submitted to the KDHE in May 2003.

Between August 2002 and September 2005, the KDHE held public hearings in Harper County regarding the proposed permit for the Plumb Thicket Landfill site. Among others, members of Tri-County were present at the hearing and voiced concerns as to the proposed location of the landfill. Tri-County is an organization formed to preserve and enhance the quality of life in Harper, Kingman, and Sumner Counties and to promote environmental protection.

Dalton Holland, a member of Tri-County, was present at the public hearing and expressed his concerns about the proposed landfill site. Holland owned a life estate in 400 acres in Kingman County on property lying directly north of the proposed landfill site. This property included a pond that drains a portion of the area where the landfill would be located.

In the summer of 2005, Burns & McDonnell conducted a peer review study of the Golder site plan-the plan on which Waste Connections based its request for a landfill permit. The Burns & McDonnell study pointed out additional deficiencies in Waste Connections' site plan, including problems with the plan's hydrogeologic reports as well as the potential for groundwater contamination. This plan was provided to the Board, KDHE, and Waste Connections.

The KDHE issued a permit to Waste Connections in August 2005 to construct the Plumb Thicket Landfill. At that time, the KDHE also responded to comments that had previously been submitted regarding the permit. The summary section of the KDHE's responses indicated that of the 317 "units of communication" it had received regarding the proposed landfill, 290 expressed opposition to the landfill, 20 expressed support of the landfill, and 7 did not indicate a particular stance. The responses addressed groups of related concerns, and the names of the people who submitted the original comments were omitted. The responses also did not make specific reference to the Terrane study or the Burns & McDonnell peer review.

Shortly thereafter, the Board, Tri-County, and Holland (appellants) filed a petition in Shawnee County District Court under the KJRA for judicial review, seeking an order to set the permit aside or to remand with directions that the KDHE take into account the studies by Terrane and Burns & McDonnell. The appellants claimed standing under K.S.A. 77-611(b) and (d) as parties to the agency proceedings that led to the agency action and as persons eligible for standing under other provisions of Kansas law.

The petition asserted that the KDHE failed to collect adequate information regarding the potential contamination from the Plumb Thicket site to support its decision. In particular, the appellants noted that the Terrane and Burns & McDonnell studies, which indicated that there were several regulatory and environmental problems with the proposed landfill, were apparently not factored into the KDHE's decision to grant the permit. According to the allegations in the petition, the KDHE's failure to take into consideration several deficiencies in Waste Connections' proposed site plan could affect, among other things, the quality of the groundwater in the area and the quality of water in the Chikaskia River—a source of water for some residents of Sumner County.

The petition further stated that the proposed landfill could cause damage to real property bordering the site, including property owned by Holland.

Waste Connections was allowed to intervene and filed a motion to dismiss or, in the alternative, a motion for a more definite claim, asserting that the appellants lacked standing to bring the action under the KJRA because they had not suffered a cognizable injury and that appellants failed to state a cause of action.

The district court granted the motion to dismiss based upon its conclusion that appellants lacked standing under K.S.A. 77-611. According to the court, the KDHE's permit was directed at Waste Connections, not the appellants. See K.S.A. 77-611(a). Moreover the court concluded that KDHE did not hold any proceedings pursuant to the Kansas Administrative Procedure Act, K.S.A. 77-501 et seq., so the appellants could not have been parties to those proceedings within the meaning of K.S.A. 77-611(b). The appellants appealed.

The Court of Appeals reversed the district court, concluding that the appellants had standing as parties to the agency proceedings under K.S.A. 77-611(b) pursuant to our opinion in Families Against Corporate Takeover v. Mitchell (FACT), 268 Kan. 803, 1 P.3d 884 (2000). Board of Sumner County Comm'rs, 38 Kan.App.2d at 561-63, 168 P.3d 1034. The court also concluded that Tri-County met the requirements for organizational standing under this court's decision in NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000). Board of Sumner County Comm'rs, 38 Kan.App.2d at 563-64, 168 P.3d 1034. The Court of Appeals made no findings, however, as to the traditional standing of either the Board or Holland.

We granted Waste Connections' petition for review.

DISCUSSION

Standing is "one of the most amorphous concepts in the entire domain of public law. [Citation omitted.]" Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155, appeal dismissed 484 U.S. 804, 108 S.Ct. 50, 98 L.Ed.2d 15 (1987); see also 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002) (quoting Harrison). We have explained that if a person does not have standing to challenge an action or to request a particular type of relief, then "there is no justiciable case or controversy" and the suit must be dismissed. Kansas Bar Ass'n v. Judges of the Third Judicial Dist., 270 Kan. 489, 490, 14 P.3d 1154 (2000). When a person who does not have standing to file suit nevertheless asks for relief, it is tantamount to a request for an advisory opinion. See 270 Kan. at 491, 14 P.3d 1154. Advisory opinions are an executive, not a judicial, power. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 885, 179 P.3d 366 (2008).

The district court ruled that the appellants in this case lacked standing because they were not parties under the KJRA. This Act has its own standing provisions that govern who may seek review of agency determinations. See K.S.A. 77-611. Thus, before determining whether the appellants have standing under traditional standards governing standing in this state, we must consider whether the appellants meet the standing requirements of the KJRA. See FACT, 268 Kan. at 807, 1 P.3d 884. If we determine that the appellants do have standing to challenge the agency action in this case under the KJRA, we must also consider whether they meet the traditional tests for individual and associational standing under Kansas law. Before considering these questions, however, we briefly examine the standards that govern our review.

STANDARD OF REVIEW

The ultimate question before this court on petition for review is whether the appellants had standing...