Southern Blasting Services v. Wilkes County, Nc

• Decision Date: 29 April 2002
• Docket Number: No. 01-2098.,01-2098.
• Citation: 288 F.3d 584
• Parties: SOUTHERN BLASTING SERVICES, INCORPORATED; Piedmont Drilling & Blasting, Incorporated, Plaintiffs-Appellants, v. WILKES COUNTY, NORTH CAROLINA, a body politic; Kevin D. Bounds, Wilkes County Fire Marshal, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

288 F.3d 584

SOUTHERN BLASTING SERVICES, INCORPORATED; Piedmont Drilling & Blasting, Incorporated, Plaintiffs-Appellants, v. WILKES COUNTY, NORTH CAROLINA, a body politic; Kevin D. Bounds, Wilkes County Fire Marshal, Defendants-Appellees.

No. 01-2098.

United States Court of Appeals, Fourth Circuit.

Argued February 27, 2002.

Decided April 29, 2002.

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ARGUED:

Douglas George Eisele, Eisele, Ashburn, Greene & Chapman, P.A., Statesville, North Carolina, for Plaintiffs-Appellants. Anthony Ray Triplett, Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., North Wilkesboro, North Carolina, for Defendants-Appellees.

Before WILKINSON, Chief Judge, and WILLIAMS and GREGORY, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge GREGORY joined.

OPINION

WILKINSON, Chief Judge.

Plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling & Blasting, Inc. seek to conduct explosives businesses and blasting operations in Wilkes County, North Carolina using Hazardous Materials Transportation Act ("HMTA") Class 1 materials. Plaintiffs challenge two County ordinances, one which requires permitting of explosives operations and one which regulates the storage and use of explosives in the County. Plaintiffs claim that the ordinances are preempted by federal law, are invalid under North Carolina law, and violate their due process rights. The district court upheld the validity of both ordinances, granting summary judgment for Wilkes County and the County Fire Marshal. We affirm.

I.

During the summer of 1997, plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling & Blasting, Inc. set up operations in Wilkes County, North Carolina. Southern Blasting purchases HMTA Class 1 explosives and has them hauled to its magazine site in Wilkes County, where they are stored until sold to industrial customers. Southern Blasting has also expressed an interest in manufacturing explosives at its site, but it has not yet done so. Piedmont Drilling conducts blasting operations by drilling holes in rock formations, loading the holes with explosives, and detonating the explosives to loosen or remove the rock.

Shortly after plaintiffs established their explosives businesses in the County, citizens began to voice objections to their operations. On September 16, 1997, approximately 150 County residents attended the meeting of the Wilkes County Board of Commissioners to express their views. And the Board was presented with a petition containing 878 signatures opposing explosives operations in the County. Due to safety concerns and this public outcry, the Board voted unanimously to have a committee draft ordinances that would establish both a permit system and a comprehensive set of regulations for the operation of explosives businesses.

On June 16, 1998, after several months of work by the appointed committee, the Board unanimously adopted the Wilkes County Explosive Materials Permitting Ordinance. The Permitting Ordinance required applicants to obtain a permit from the County Fire Marshal prior to possessing, storing, selling, transporting, or otherwise dealing in explosive materials in Wilkes County. In addition, the Permitting Ordinance provided that only businesses operating in the County on the day the ordinance was adopted could apply for a permit. And the ordinance gave ultimate decision-making authority to the Fire Marshal. See Permitting Ordinance art. VI. However, the application process included a public hearing and consultation with the Federal Bureau of Alcohol, Tobacco & Firearms ("BATF"), the County Planning Department, the County Health Department, the County Building Inspections Department, and the Board. See Permitting Ordinance art. VI(E). Further, the Permitting Ordinance specifically excluded ammunition or firearms dealers licensed under federal or state law from its requirements. See Permitting Ordinance art. V, VI(A).

On August 4, 1998, the Board also unanimously enacted the Wilkes County Explosive Materials Ordinance (the "Regulatory Ordinance"), which became effective on December 8, 1998 after the necessary approval was obtained from the North Carolina Building Code Council. This ordinance addressed the storage and use of explosives in the County. Specifically, the Regulatory Ordinance restricted the manufacture of explosives, required installation of security measures at storage locations, set limits on the quantity of stored explosives and established penalties for violations. See Regulatory Ordinance art. VI, VII. Like the Permitting Ordinance, the Regulatory Ordinance excluded the possession, transportation, storage, and use of small arms ammunition from its scope. See Regulatory Ordinance art. V.¹

Plaintiffs did not apply for a permit under the Permitting Ordinance. Instead, plaintiffs initiated this action, alleging that the Permitting and Regulatory Ordinances were preempted by federal law, were invalid under North Carolina law, and violated their due process rights. Plaintiffs sought injunctive relief to prevent the enforcement of the ordinances. The district court concluded that both the Permitting and Regulatory Ordinances were valid and granted summary judgment to the County and the Fire Marshal. See S. Blasting Servs., Inc. v. Wilkes County, 162 F.Supp.2d 455 (W.D.N.C.2001).

The district court held that plaintiffs' preemption claim failed because Congress did not intend to "occupy the field" of explosives regulation and plaintiffs had failed to show a "direct and positive conflict" between the ordinances and any federal law. Id. at 462-63. The court also concluded that the ordinances and their enabling statute, N.C. Gen.Stat. § 153A-128, were valid under Article II, § 24 of the North Carolina Constitution, which prevents the North Carolina General Assembly from promulgating certain acts of less than statewide application. The court found that § 153A-128 granted authority to regulate explosive substances uniformly to all North Carolina counties in conformance with Article II, § 24. Id. at 458-59.

The district court next rejected plaintiffs' substantive due process claim, finding that the ordinances were a valid exercise of the County's police power and were rationally related to a legitimate governmental purpose. Id. at 459-60. Finally, because plaintiffs had not even applied for a permit, the district court concluded that they lacked standing to assert a procedural due process challenge to the ordinances. Id. at 460-61. Plaintiffs appeal.

II.

A.

We begin by considering plaintiffs' preemption claim. It is well-established that the Supremacy Clause "invalidates state laws that `interfere with, or are contrary to,' federal law." Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)). The Supreme Court has repeatedly held that "state laws can be preempted by federal regulations as well as by federal statutes" and that "for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws." Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371 (citing cases).

Yet "[c]onsideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). This presumption is strongest when Congress legislates "in a field which the States have traditionally occupied." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation omitted). States have long possessed primary responsibility in our federal system for protecting the health and safety of their citizens. Id. at 475, 485, 116 S.Ct. 2240. Indeed, courts "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 485, 116 S.Ct. 2240 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).

Nevertheless, there are several ways in which federal law may supersede state or local law. First, Congress may expressly preempt such laws. See, e.g., Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371. Second, in the absence of express preemptive language, Congress' intent to preempt state law may be implied when "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotations omitted). Finally, preemption will also be implied if state or local law "actually conflicts with federal law." Such a conflict occurs "when compliance with both federal and state regulations is a physical impossibility, or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371 (internal quotations omitted).

B.

Plaintiffs claim that federal law regulating the manufacture, distribution, and storage of explosive materials preempts the County's Permitting and Regulatory Ordinances. They maintain that the County ordinances are superseded because of the exhaustive nature of federal law in the explosives field, and because various provisions of the ordinances are in direct and positive conflict with federal regulations.

The federal law governing explosive materials is codified at 18 U.S.C. §§ 841-848 (2000). Section 848, entitled "Effect on State law," provides:

No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject...