State ex rel. Food & Water Watch v. State

Decision Date24 January 2018
Docket NumberNo. 2016–1015,2016–1015
Citation100 N.E.3d 391,153 Ohio St.3d 1,2018 Ohio 555
Parties The STATE EX REL. FOOD AND WATER WATCH; FreshWater Accountability Project, Appellant, v. The STATE of Ohio et al., Appellees.
CourtOhio Supreme Court

James Yskamp and Emily A. Collins, for appellant.

Michael DeWine, Attorney General, and Brett A. Kravitz and Daniel J. Martin, Assistant Attorneys General, for appellees James Zehringer and Rick Simmers.

Michael DeWine, Attorney General, and Ryan L. Richardson and Sarah E. Pierce, Assistant Attorneys General, for appellees state of Ohio and Governor John R. Kasich.

Steptoe & Johnson, P.L.L.C., J. Kevin West, and Lyle B. Brown, Columbus, for appellees Chesapeake Explorations, L.L.C., and Antero Resources Corporation.

Per Curiam.

{¶ 1} Food and Water Watch ("FWW") and relator-appellant, FreshWater Accountability Project ("FWAP"), filed a complaint for a writ of mandamus to compel respondents-appellees Rick Simmers, the chief of the oil-and-gas-resources-management division of the Ohio Department of Natural Resources ("ODNR"), and James Zehringer, the director of ODNR (collectively, "the ODNR appellees") to promulgate rules relating to the storage, recycling, treatment, processing, and disposal of waste substances associated with oil and gas drilling. The state of Ohio and the governor of Ohio (collectively, "the state appellees") were also named as respondents in the complaint and are also appellees in this court. The Tenth District Court of Appeals granted summary judgment to appellees on the grounds that FWW and FWAP lack standing. We affirm the court of appeals' judgment.

I. Background

{¶ 2} R.C. 1509.03(A) states that the chief of the oil-and-gas-resources-management division of ODNR "shall adopt" rules, in accordance with R.C. Chapter 119, for the operation of oil and gas wells and production facilities. The Revised Code identifies specific matters the rules must address, including safety in well drilling and operations, protection of the public water supply, and containment and disposal of drilling and production waste. R.C. 1509.03(A)(1), (2), and (4).

{¶ 3} The division chief is also required to adopt rules regarding the storage, recycling, treatment, processing, and disposal of brine and other waste substances. R.C. 1509.22(C). Those rules must establish procedures and requirements governing permits for the handling of brine and other waste substances. Id. Without such a permit, "no person shall store, recycle, treat, process, or dispose of in this state brine or other waste substances associated with the exploration, development, well stimulation, production operations, or plugging of oil and gas resources" after January 1, 2014. R.C. 1509.22(B)(2).

{¶ 4} FWW and FWAP alleged in their complaint that the ODNR appellees have not issued rules governing the permitting process for handling and treating waste from oil and gas operations. Instead, the ODNR appellees have allowed facilities to operate pursuant to "temporary authorization" from Division Chief Simmers.

{¶ 5} For example, on March 6, 2014, Simmers issued an order granting "temporary authorization" for Industrial Waste Control/Ground Tech., Inc. ("IWC") to operate a facility in Youngstown, Ohio, at which "radiological waste characterization, tank cleaning and decontamination, waste solidification, brine storage, and preparation for disposal operations" would occur. The only conditions imposed upon IWC were that the company conduct all operations in compliance with the law and not dispose of brine unlawfully. The temporary authorization to operate is to remain in effect until the division chief promulgates rules under R.C. 1509.22(C) and either IWC receives a permit under the new rules, IWC is denied a permit, or six months elapse from the effective date of the rules.

{¶ 6} Similarly, on January 3, 2014, Simmers granted temporary authority, subject to the same terms and conditions, to the EnerGreen 360 Holding Company, L.L.C., a treatment facility in Belmont County. In total, the complaint in this case lists 23 separate facilities (including IWC and EnerGreen) allegedly operating in Ohio pursuant to temporary authorization orders issued by Simmers.

{¶ 7} FWW and FWAP, two nonprofit organizations, filed a complaint, naming the ODNR appellees and the state appellees as respondents, for a writ of mandamus in the Tenth District Court of Appeals to compel the ODNR appellees to promulgate rules as required by R.C. 1509.03 and 1509.22. Two facility operators, appellees Chesapeake Exploration, L.L.C., and Antero Resources Corporation, sought leave to intervene, which the magistrate granted.

{¶ 8} On December 23, 2014, the state appellees and the ODNR appellees moved to dismiss FWW and FWAP's action for lack of jurisdiction and for failure to state a claim upon which relief could be granted. In their motion, the state appellees and the ODNR appellees asserted that FWW and FWAP lacked standing to assert their claims. FWW and FWAP filed a memorandum contra respondents' motion to dismiss and, in support of their memorandum, filed affidavits of four of their members: David and Bobbie Castle, Hattie Wilkins, and Cheryl Mshar.

{¶ 9} On February 27, 2015, FWW and FWAP filed a "motion for summary judgment and/or for peremptory writ of mandamus." On March 12, 2015, the intervenors filed a motion for summary judgment claiming that FWW and FWAP lacked standing to assert their claims. On April 28, 2015, two more motions were filed seeking summary judgment based on lack of standing: one on behalf of the state appellees and the other on behalf of the ODNR appellees. The state appellees also argued that they had no clear legal duty relevant to the claims in the case.

{¶ 10} On January 14, 2016, a magistrate recommended granting summary judgment in favor of the respondents and the intervenors. The magistrate considered whether FWW and FWAP (through their individual members) could establish traditional standing (i.e., could establish that the respondents' allegedly unlawful conduct caused their members injuries that are likely to be redressed by the requested relief), public-right-doctrine exception to standing, or taxpayer standing to bring suit and concluded that they could not. The magistrate determined that they had failed to establish traditional standing because they could not establish injury.

{¶ 11} FWW and FWAP filed objections to the magistrate's decision. Relators, summarizing their objections, argued that they have traditional standing as associations whose members claimed personal standing to sue. Relators relied on the affidavits of the Castles, Wilkins, and Mshar, arguing that they "demonstrate harm or threats of harm in the form of possible environmental damage and damage to human health" as a consequence of Simmers's failure to promulgate rules pursuant to R.C. 1509.22. In the alternative, FWW and FWAP also argued that the ODNR appellees' failure to promulgate rules pursuant to R.C. 1509.22 is sufficient to establish a public-right-doctrine exception to standing in this case.

{¶ 12} The Tenth District Court of Appeals, overruling FWW and FWAP's objections, adopted the magistrate's decision and granted summary judgment based on lack of standing. Presiding Judge Dorrian, concurring for different reasons, found that FWW and FWAP demonstrated sufficient harm to at least one of their members to satisfy one of the requirements of traditional standing but failed to demonstrate the redressability requirement—that the relief sought would alleviate the harm alleged. FWAP timely appealed and presents three propositions of law to argue that it has standing to bring this action:

Proposition of Law No. 1: Appellant has standing pursuant to R.C. 2731.02 as a beneficially interested party commanding the performance of an act which the law specifically enjoins.
Proposition of Law No. 2: By having members who are injured by the deprivation of their rights under R.C. 1509.22 and the Ohio Administrative Procedure Act, and by Facilities Operating Pursuant to Chief's Orders, appellant meets the traditional standing requirements to pursue a writ of mandamus action.
Proposition of Law No. 3: The appellant has standing to file a mandamus action to procure enforcement or protection of a public right, and need not show any special individual interest or injury where the appellant is properly interested in the execution of the laws of the state.
II. FWAP waived standing under R.C. 2731.02 and as a taxpayer

{¶ 13} FWAP argues that R.C. 2731.02"provides a ‘beneficially interested’ party with statutory standing in a writ of mandamus action under the statute." As FWAP notes, "the party beneficially interested’ standard is completely absent from the Magistrate's Decision." FWAP, however, failed to raise such an objection to the magistrate's decision.

{¶ 14} Additionally, FWAP appears to argue that it has taxpayer standing. The magistrate held that FWAP's failure to pursue the argument resulted in waiver of the argument. FWAP did not object to the magistrate's conclusion that FWW and FWAP had waived the taxpayer-standing argument.

{¶ 15} "The Rules of Civil Procedure are generally applicable in original actions for extraordinary writs." State ex rel. Sautter v. Grey , 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶ 11, citing State ex rel. Ahmed v. Costine , 99 Ohio St.3d 212, 2003-Ohio-3080, 790 N.E.2d 330, ¶ 5, fn. 1, and Gaskins v. Shiplevy , 74 Ohio St.3d 149, 150, 656 N.E.2d 1282 (1995). Civ.R. 53(D)(3)(b)(ii) provides, "An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection." A party shall not assign as error on appeal the court's adoption of any legal conclusion unless the party has objected to that conclusion. Civ.R. 53(D)(3)(b)(iv).

{¶ 16} Here, because FWAP and FWW did not raise an argument relating to standing under R.C. 2731.02 or standing as a taxpayer in their objections to the...

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