Waste Connections of Kan. v. City of Bel Aire, Ks
| Decision Date | 01 March 2002 |
| Docket Number | No. CIV.A. 02-1035-MLB.,CIV.A. 02-1035-MLB. |
| Citation | 191 F.Supp.2d 1238 |
| Parties | WASTE CONNECTIONS OF KANSAS, INC., et al., Plaintiffs, v. CITY OF BEL AIRE, KANSAS, Defendant. |
| Court | U.S. District Court — District of Kansas |
David M. Traster, William M. Anderson, Foulston & Siefkin L.L.P., Wichita, KS, April D. Cover, Lincoln, NE, for plaintiffs.
James S. Pigg, Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, Lee E. Parker, Office of the City Attorney, City of Bel Aire, Bel Aire, KS, for defendant.
This matter is currently before the court upon plaintiffs' motion for a temporary and/or preliminary injunction. Doc. 4. Plaintiffs seek to enjoin defendant, the City of Bel Aire, Kansas ("City"), from entering into an exclusive contract for the curbside pickup of recyclable materials within the City. Doc. 5.1 Finding jurisdiction proper with respect to the two federal constitutional issues raised in the motion, see 28 U.S.C. § 1331, the court DENIES plaintiffs' motion.
A preliminary injunction is an extraordinary remedy that is granted in only the most exceptional of circumstances. See Buca, Inc. v. Gambucci's Inc., 18 F.Supp.2d 1193, 1200 (D.Kan. 1998). Its main purpose is to maintain the status quo so that the trial court can render a meaningful decision. See id. Only when this purpose can be accomplished should this court exercise its discretion and enter such a drastic order. See id. at 1201.
To obtain a preliminary injunction, the party seeking the injunction has the burden to demonstrate (1) it will suffer irreparable injury without the injunction, (2) its injury outweighs any injury the injunction will cause the opposing party, (3) the injunction furthers public interest, and (4) there is a substantial likelihood that the party seeking the injunction will ultimately prevail on the merits. See Sizewise Rentals, Inc. v. Mediq/PRN Life Support Servs., Inc., 87 F.Supp.2d 1194, 1198 (D.Kan.2000). When the party seeking the injunction has met the first three elements, however, the Tenth Circuit applies "a modified interpretation" of the fourth element. See id. Specifically, the party seeking the injunction may satisfy the fourth element if it shows that there are "questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues fair ground for litigation and deserving of more deliberate investigation." Buca, Inc. v. Gambucci's Inc., 18 F.Supp.2d 1193, 1201 (D.Kan.1998) ().
The analysis below reviews plaintiffs' claims in light of this standard. To facilitate the expeditious ruling sought by the parties, the court will assume, without deciding, that plaintiffs have met the first three elements necessary for this court to issue an injunction.2 Accordingly, the review of plaintiffs' positions looks only to whether their complaint and application for an injunction raises questions so serious, difficult, and doubtful so as to make the issues fair grounds for litigation such that a more deliberate investigation is needed. In doing so, the court has, however, kept in mind its discussion with counsel during the February 25, 2002 conference. There, counsel agreed that no facts were truly in dispute and that no additional facts were needed for the court to make its decision on plaintiffs' motion.
The plaintiffs, to one degree or another, are all involved in the curbside pick up and disposal of refuse and/or recyclable materials in the City.3 Doc. 1, ¶¶ 1, 7, 8, 10, 11, 12, and 14. Each plaintiff contracts directly with its customers to provide the agreed upon level of waste services. Doc. 5, ¶¶ 3, 6, and 7. There is no evidence that the City has ever provided such services to its residents for a fee.
For some time, the City has had a voluntary Saturday morning recycling program funded by the City and operated by volunteers of the "Bel Aire Recycling Committee." Doc. 10, ¶ 1. Under this Saturday morning program, homeowners, though not necessarily Bel Aire residents, bring recyclable goods to the City's recycling station where volunteers collect, sort, package, and ship the recyclable materials to an unspecified location outside of the City. Doc. 10, ¶ 1. Due to the growth of the program, the Saturday morning program has become unmanageable. Doc. 10, ¶ 2.
In June of 2001, in whole or in part in response to "encouragement" from the Board of Commissioners of Sedgwick County, Kansas, the City issued a request for proposals ("RFP") from those interested in collecting the City's residents' solid waste and recyclable materials. Doc. 5, ¶ 14. The City sought to contract with a single waste hauler for the exclusive right to service the residents. Doc. 5, ¶ 14; Doc. 10, ¶ 8. While all of the plaintiffs had an opportunity to submit bids pursuant to the RFP, only plaintiff Waste Connections, Inc. did so. Doc. 10, ¶ 8. During its August 7, 2001 City Council meeting, the City rejected all bids because they failed to comply with all of the RFP's terms and conditions. Doc. 10, ¶ 9. Nonetheless, the City Council took special notice of a bid submitted by South Central Recycling ("South Central"), a company from nearby Newton, Kansas. Doc. 10, ¶ 9. The City Council then directed city staff and the Bel Aire Recycling Committee to follow up with South Central to formulate a program, for adoption by the City Council, under which the City of Bel Aire would contract with South Central for curbside recycling collection services within the corporate limits of the City. Doc. 10, ¶ 9.
To this end, the City Council, on January 22, 2002, unanimously adopted an ordinance ("the Ordinance") establishing a solid waste utility and a curbside recycling program that would be provided by a single contract recycling program hauler pursuant to a written contract with the City.4 Doc. 10, ¶ 10. The Ordinance authorizes the City's administrator to negotiate an initial contract5 with South Central but it does not specify that subsequent contracts must be exclusively with South Central. The Ordinance also does not require any of the City's residents to use South Central to dispose of their recyclable materials. Doc. 10, ¶ 10. Any recycling provider, including plaintiffs, can still contract directly with any or all of the City's residents to pick up their recyclable materials. Nothing in the Ordinance speaks to what can or should be done with the recyclable material after it is removed from the curbside.
The Ordinance authorizes the City to charge each household $4.00 per month. Doc. 5, ¶ 9. The $4.00 charge will be added to the water bill of each household within the City whether or not the household chooses to recycle and, if the household does recycle, whether or not the household chooses to do so with South Central. Doc. 5, ¶ 9. Failure to pay this $4.00 fee will result in the household's water being shut off by the City. Doc. 5, ¶ 9. In other words, while participation in the recycling program is voluntary, payment for such services is mandatory.
Plaintiffs allege that South Central will also provide "optional" trash or "solid waste" pick up as "an adjunct to its recycling business." Doc. 5, ¶ 12. Again, the City's residents are not required to utilize South Central for "solid waste" disposal. Those who do will be charged an additional $8.00 per month. Doc. 5, ¶ 12. Thus, residents of the City will be able to dispose of both their solid waste and recyclable material for approximately $12.00 per month, a fee substantially lower than the currently existing "free market" price apparently charged by plaintiffs. Doc. 5, ¶ 13.
Plaintiffs claim that the City's adoption of the Ordinance violates various provisions of the United States Constitution. Doc. 5. Plaintiffs specifically assert that the Ordinance violates the negative component of the Commerce Clause and/or the Contracts Clause.6 Doc. 16, pp. 4-9. Accordingly, this court will decide only whether plaintiffs are entitled to an order of this court enjoining the City from contracting with South Central because the Ordinance violates the dormant Commerce Clause and/or the Contracts Clause.
The Commerce Clause provides that Congress "shall have Power ... To regulate Commerce with foreign Nations, and among the several States." U.S. CONST. art. I, § 8, cl. 3. "Though phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a `negative' aspect that denies the States [and their political subdivisions, see Blue Circle Cement, Inc. v. Board of County Commr's, 27 F.3d 1499, 1511 n. 13 (10th Cir.1994)] the power unjustifiably to discriminate or burden the interstate flow of articles of commerce."7 See Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). This implied restraint upon the states and its political subdivisions is often referred to as the "dormant" aspect of the Commerce Clause. See American Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1254 (10th Cir.2000). Dormant Commerce Clause jurisprudence does not affect state or local regulations that are directly authorized by Congress but does "act[] as a brake" on the states' authority to regulate in areas where Congress has not affirmatively done so. See Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999).8
To determine whether an ordinance violates the dormant Commerce Clause, this court must make two separate inquiries. First, the court must determine whether the City, by passing the Ordinance, is regulating the market or simply participating in the market. See USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1281 (2d Cir.1995). In the event the City is merely participating in the market, it is "engaging in `market...
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...methods used to implement [legitimate] goals should be given substantial deference by the courts." Waste Connections of Kan., Inc. v. City of Bel Aire, 191 F.Supp.2d 1238, 1252 (D.Kan.2002) (citing Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 191 (1st Cir.1999)). However, t......