NEUSE RIVER FOUNDATION v. Smithfield Foods

• Decision Date: 31 December 2002
• Docket Number: No. COA01-1204, No. COA01-1205.
• Citation: 155 NC App. 110,574 S.E.2d 48
• Parties: NEUSE RIVER FOUNDATION, INC.; Richard J. Dove; D. Bouton Baldrige, d/b/a the Cape Fear Riverkeeper; New River Foundation, Inc.; Tom Mattison, d/b/a the New Riverkeeper; and The Water Keeper Alliance, Plaintiffs, v. SMITHFIELD FOODS, INC.; Carroll's Foods, Inc.; Brown's of Carolina, Inc.; Murphy Farms, Inc.; Wendell H. Murphy, Sr.; Individually; Wendell H. Murphy, Jr., Individually; and Joseph W. Luter, III, Defendants. Thomas E. Jones; Bill Harper; Mary Ann Harrison; Natalie Salter Baggett; Don Webb; Charles Rogers Hughes; Craig Crumpler; Sidney Whaley; Margaret Hanrahan Jones; David Lee Jones; Seth Austin Willis; Eric Mark Blettner; Fred Rohde; and Neil Julian Savage, Plaintiffs, v. Smithfield Foods, Inc.; Carroll's Foods, Inc.; Brown's of Carolina, Inc.; Murphy Farms, Inc.; Wendell H. Murphy, Sr.; Individually; Wendell H. Murphy, Jr., Individually; and Joseph W. Luter, III, Defendants.
• Court: North Carolina Court of Appeals

574 S.E.2d 48

155 NC App. 110

NEUSE RIVER FOUNDATION, INC.; Richard J. Dove; D. Bouton Baldrige, d/b/a the Cape Fear Riverkeeper; New River Foundation, Inc.; Tom Mattison, d/b/a the New Riverkeeper; and The Water Keeper Alliance, Plaintiffs, v. SMITHFIELD FOODS, INC.; Carroll's Foods, Inc.; Brown's of Carolina, Inc.; Murphy Farms, Inc.; Wendell H. Murphy, Sr.; Individually; Wendell H. Murphy, Jr., Individually; and Joseph W. Luter, III, Defendants.

Thomas E. Jones; Bill Harper; Mary Ann Harrison; Natalie Salter Baggett; Don Webb; Charles Rogers Hughes; Craig Crumpler; Sidney Whaley; Margaret Hanrahan Jones; David Lee Jones; Seth Austin Willis; Eric Mark Blettner; Fred Rohde; and Neil Julian Savage, Plaintiffs, v. Smithfield Foods, Inc.; Carroll's Foods, Inc.; Brown's of Carolina, Inc.; Murphy Farms, Inc.; Wendell H. Murphy, Sr.; Individually; Wendell H. Murphy, Jr., Individually; and Joseph W. Luter, III, Defendants.

Nos. COA01-1204, COA01-1205.

Court of Appeals of North Carolina.

December 31, 2002.

Abrams & Abrams, P.A., by Douglas B. Abrams; Womble, Carlyle, Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., Raleigh, for plaintiff-appellants.

Ward and Smith, P.A., by Gary J. Rickner, New Bern; McGuire Woods, LLP, by Anne Marie Whittemore, Richmond; Cheshire, Parker, Schneider, Wells & Bryan, by Joseph B. Cheshire, V, Raleigh; and J. Phil Carlton, Pinetops, for defendant-appellees.

THOMAS, Judge.

Plaintiffs filed suit in these cases seeking two forms of relief. They ask for the establishment of a "Court Approved Trust" to pay for the complete remediation of several of North Carolina's waterways as well as a prohibition of defendants' use of swine lagoons and sprayfields.

Plaintiffs do not pray for individual compensation.

The trial court dismissed their claims under Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure, concluding "all plaintiffs lack standing to prosecute any claims before this Court, that this Court lacks subject matter jurisdiction as to any claims pending, and that the complaint fails to state a single claim upon which this Court by law is authorized to grant relief." Plaintiffs appeal, arguing a common law right to bring their causes of action.

For the reasons herein, we affirm the trial court.

Plaintiffs can be divided into five categories: (1) river associations, including The Neuse River Foundation, Inc., The New River Foundation, Inc., and the Water Keeper Alliance ("river associations"); (2) persons employed by nonprofit organizations as monitors of the rivers ("riverkeepers"); (3) noncommercial users of the rivers; (4) riparian landowners who are downstream from the alleged pollution; and (5) commercial users of the rivers.

They filed suit against three hog farming companies, the companies' corporate parent, and some of the current and former officers of the companies (collectively, "defendants"). Plaintiffs, represented by the same attorneys, were divided as litigants between two fundamentally similar actions against the same defendants. The hearing at the trial level was a consolidation of the two, as is this appeal.

Plaintiffs allege defendants improperly handled hog waste, resulting in massive pollution and contamination of the Neuse, New, and Cape Fear Rivers, and those rivers' tributaries and estuaries. Their claims are based on negligence, trespass, strict liability, public nuisance, unfair and deceptive trade practices, private nuisance and the public trust doctrine.

The complaints contain comprehensive background information regarding injury to North Carolina's coastal plain. One, for example, alleges:

Largely as a result of Defendants' activities, [North Carolina's] coastal plain has experienced an explosion in its hog population as traditional North Carolina style family hog farming has given way to mass production pork factories first conceived and devised by Defendants.

...

A Tradition of Land Stewardship and Animal Husbandry is Lost—The family farmer traditionally spreads the manure of a few hundred hogs as fertilizer on the same crop land from which he derives produce to feed his herd. In accordance with traditions of good land stewardship, animal husbandry and agricultural practices, the family farmer maintained a relatively small herd of hogs in an area sufficient to accommodate the hog waste without significant contamination. Traditional farmers thus achieve a rough balance by assimilating the nutrients in hog waste[.]

...

Defendant's hog farms quickly triumphed over family farmers in the market place.

...

Contaminated Lagoons—Whereas North Carolina hog farmers were once largely self-sufficient in producing and/or obtaining locally produced feed for their livestock on their own farms, Defendants' hog factories must import approximately 20,000 metric tons of feed each day from Midwestern grain producers.

...

The feces and urine of the hogs, instead of being purified through sewage treatment, fall through a slatted floor to a cellar below the warehouses which defendants periodically flush into open air earthen pits—euphemistically referred to as "lagoons."

The complaints go on to detail the harmful effects of the contamination and to request non-individualized, or public, forms of relief.

Plaintiffs now argue that such non-individualized forms of relief are appropriate and the trial court erred by finding they lack standing to pursue them. We disagree.

As the party invoking jurisdiction, plaintiffs have the burden of proving the elements of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351, 364 (1992)

.

Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.

Id. (citations omitted). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Id. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695, 717 (1990)).

"Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction." Aubin v. Susi, 149 N.C.App. 320, 324, 560 S.E.2d 875, 878 (2002). Accordingly, defendants' standing argument implicates Rule 12(b)(1). See Fuller v. Easley, 145 N.C.App. 391, 395, 553 S.E.2d 43, 46 (2001)

. It is proper to conduct de novo review of a trial court's decision to dismiss a case for lack of standing. Id.

Standing is among the "justiciability doctrines" developed by federal courts to give meaning to the United States Constitution's "case or controversy" requirement. U.S. Const. Art. 3, § 2. The term refers to whether a party has a sufficient stake in an otherwise justiciable controversy so as to properly seek adjudication of the matter. Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 1364-65, 31 L.Ed.2d 636, 641 (1972). The "irreducible constitutional minimum" of standing contains three elements:

(1) "injury in fact"—an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136, 119 L.Ed.2d at 364.

North Carolina courts are not constrained by the "case or controversy" requirement of Article III of the United States Constitution. Our courts, nevertheless, began using the term "standing" in the 1960s and 1970s to refer generally to a party's right to have a court decide the merits of a dispute. See, e.g., Stanley, Edwards, Henderson v. Dept. of Conservation & Development, 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973)

. Standing most often turns on whether the party has alleged "injury in fact" in light of the applicable statutes or caselaw. See Empire Power Co. v. North Carolina Dep't of E.H.N.R., 337 N.C. 569, 447 S.E.2d 768 (1994); Dunn v. Pate, 334 N.C. 115, 119, 431 S.E.2d 178, 180 (1993); Greene v. Town of Valdese, 306 N.C. 79, 88, 291 S.E.2d 630, 636 (1982); N.C. Forestry Ass'n v. North Carolina Dept. of Natural Resources, ___ N.C.App. ___, 571 S.E.2d 602 (2002); Ray Bergman Real Estate Rentals v. NCFHC, ___ N.C.App. ___, 568 S.E.2d 883 (2002); In re Ezzell, 113 N.C.App. 388, 392, 438 S.E.2d 482, 484 (1994); Orange County v. Dept. of Transportation, 46 N.C.App. 350, 265 S.E.2d 890 (1980). Here, we must also examine the forms of relief sought. See Friends of Earth, v. Laidlaw Env. S., 528 U.S. 167, 185, 120 S.Ct. 693, 706, 145 L.Ed.2d 610, 629 (2000) ("a plaintiff must demonstrate standing separately for each form of relief sought").

Prior to the utilization of the "standing" label by North Carolina's courts, our Supreme Court, in Hampton v. Pulp Co., 223 N.C. 535, 27 S.E.2d 538 (1943), addressed whether a private party can maintain an action for damages caused by a public nuisance. According to the Hampton Court, it may be appropriate as long as the party has suffered an injury that "cannot be considered merged in the general public right[.]" Hampton, 223 N.C. at 543-44, 27 S.E.2d at 544. The Hampton Court held:

[N]o individual may recover damages because of injury by public nuisance, unless he has received a special damage or unless the creator of the nuisance has thereby invaded some right which, upon principles of justice and public policy, cannot be considered merged in the general public right[.]

Id. The Hampton Court explained "[t]he real reason on which the rule denying individual recovery of...