Shain v. Veneman, 03-3331.

• Decision Date: 22 July 2004
• Docket Number: No. 03-3331.,03-3331.
• Citation: 376 F.3d 815
• Parties: Robert SHAIN; James Sheetz, Plaintiffs/Appellants, v. Ann M. VENEMAN, Secretary of Department of Agriculture; Gilbert Gonzalez, Jr., Undersecretary of Agriculture for Policy and Planning; David Dowdy, Rural Development Specialist, Defendants/Appellees. City of Kinross, Iowa; Regional Utility Service Systems, Amici on Behalf of Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

376 F.3d 815

Robert SHAIN; James Sheetz, Plaintiffs/Appellants, v. Ann M. VENEMAN, Secretary of Department of Agriculture; Gilbert Gonzalez, Jr., Undersecretary of Agriculture for Policy and Planning; David Dowdy, Rural Development Specialist, Defendants/Appellees City of Kinross, Iowa; Regional Utility Service Systems, Amici on Behalf of Appellees.

No. 03-3331.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2004.

Filed: July 22, 2004.

Appeal from the United States District Court for the Southern District of Iowa, James E. Gritzner, J Wallace L. Taylor, Cedar Rapids, IA, argued, for appellant.

Christopher D. Hagen, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.

Robert W. Goodwin, Ames, IA, argued, for amicus.

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.

BYE, Circuit Judge.

Robert Shain and James Sheetz brought this action for declaratory and injunctive relief under the Administrative Procedure Act (APA), alleging the United States Department of Agriculture (USDA) would violate federal law by financing the building of a sewage-treatment plant on a flood plain near the property Mr. Shain owns and land Mr. Sheetz rents and farms outside the city of Kinross, Iowa. The district court¹ granted the government's² motion to dismiss for lack of standing and dismissed the government's alternative motion for summary judgment as being moot.

On appeal, the plaintiffs argue the treatment plant increases the risk of flooding on their lands and they therefore possess standing to sue because they face an imminent injury traceable to the government's conduct and redressable by a mandatory injunction to dismantle the plant. We agree with the district court the plaintiffs failed to allege a cognizable injury, and we therefore affirm on that basis without reaching other justiciability issues.

I

In 1997, the City of Kinross had no sanitary sewage treatment system, and sewage water from private septic systems flowed into a common drain that emptied into Smith Creek. After a receiving a complaint from the state of Iowa about the discharge from one resident's septic tank, Kinross studied the possibility of building a community sewer system.

In 2000, Kinross and the Regional Utility Service System (RUSS), an intergovernmental agency, entered into an agreement pursuant to Iowa law whereby RUSS agreed to finance, construct, and jointly maintain a $585,000 sewer system serving forty-two users in rural Kinross. To this end, RUSS secured in principle a $128,500 loan and a $367,500 grant from the USDA.³

On June 19, 2002, Kinross condemned 4.74 acres of land to build two retention ponds, or lagoons, for the treatment facility. The local compensation commission awarded $21,500 in damages to the landowners and $100 to Mr. Sheetz as a tenant. When Mr. Sheetz later unsuccessfully appealed the award in state court, he did not challenge the taking on environmental grounds.

The lagoons were finished and became fully operational in March 2003. They are located on a 100-year flood plain for an unnamed tributary of Smith Creek. The tributary runs through land Mr. Sheetz rents and farms adjacent to the lagoons, and Mr. Shain owns farmland 1,000 feet to one-half mile⁴ down stream.

On December 24, 2002, Mr. Shain filed a complaint in federal district court challenging the USDA's funding of the project. Following the government's motion to dismiss for lack of standing, Mr. Shain amended the complaint to include Mr. Sheetz as a plaintiff. On May 27, 2003, the government filed an amended motion to dismiss and for summary judgment, once again contesting the standing to sue.

In their complaint, the plaintiffs alleged the USDA would violate federal law by funding the project without requiring Kinross to participate in the National Flood Insurance Plan, as required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4106(a), and without considering alternatives to avoid adverse effects and incompatible development in a designated flood plain, as required by Executive Order 11988. The district court dismissed the complaint, concluding the plaintiffs lacked standing because they had alleged a speculative or conjectural injury, or alternatively, because the alleged injury was not redressable by judicial relief. Without reaching other issues (redressability, ripeness), we affirm for the plaintiffs' failure to plead a cognizable injury.

II

The court reviews de novo a district court's dismissal for lack of standing, accepting as true all of the complaint's material allegations and construing the complaint in favor of the complaining party. Gardner v. First American Title Ins. Co., 294 F.3d 991, 993 (8th Cir.2002).

The standing doctrine serves to limit federal jurisdiction to cases and controversies as required by Article III of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party invoking federal jurisdiction has the burden of establishing standing, Schanou v. Lancaster County Sch. Dist., 62 F.3d 1040, 1045 (8th Cir.1995), by alleging and eventually proving he has suffered an injury-in-fact traceable to the defendant's challenged action and redressable by the court's favorable decision.⁵ Lujan, 504 U.S. at 560-561, 112 S.Ct. 2130.

The district court correctly concluded the complaint in this case failed to allege a cognizable injury-in-fact. For purposes of standing, a plaintiff's injury must consist of an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Id. The district court held the plaintiffs failed to allege even an imminent injury because the occurrence of a 100-year flood is by definition speculative and unpredictable. As a matter of law, we agree.

In the district court, the plaintiffs alleged they faced two imminent injuries in the event of a 100-year flood. First, effluent from the lagoons will spill onto and contaminate the land when a flood exceeds the height of the lagoons' embankments. Second, the embankments will displace flood waters and increase the risk of flooding on their property. Probably because the government presented undisputed evidence a flood could not reach even the base of the embankments, the plaintiffs have apparently abandoned the contamination argument on appeal.

Instead, the plaintiffs advance the displacement argument alone, essentially contending the word "imminent" does not mean immediate but only certain. They reason the 100-year designation means a flood will certainly occur, albeit potentially many years from now. When such a flood occurs, the embankments will surely displace water, leading to an increased risk of flooding on the plaintiffs' lands. We detect several problems with this argument as a basis for conferring standing.

First, the...