Monk, et al v. Huston, et al

United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 02-40880
m 02-41155
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CARL MONK; CONSTANCE MONK; PATRICK MCBRIDE; GARY GRAYBEAL;
JIM LOERCH; CHRIS LOTT; DARLENE LOTT; DAVID BROCK; KAY GLANDT;
PATRICIA WRIGHT-COMBS; KAREN CAUDLE MUDD; DARIO GARCIA;
CHESTER BIENIK; JOY BRACEY; TED HOLLINGSWORTH; AND JOHNNIE JENNINGS,
Plaintiffs-Appellees,
VERSUS
ROBERT J. HUSTON, ETC., ET AL.,
Defendants,
ROBERT J. HUSTON,
IN HIS OFFICIAL CAPACITY AS
CHAIRMAN OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION;
R.B. RALPH MARQUEZ,
IN HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION;
KATHLEEN HARTNET WHITE,
IN HER OFFICIAL CAPACITY AS
COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION;
AND
JEFF SAITAS,
IN HIS OFFICIAL CAPACITY AS
THE EXECUTIVE DIRECTOR OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION,
Defendants-Appellants.

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_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
Before SMITH, DENNIS, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Defendant officials of the Texas Commis-
sion on Environmental Quality (“TCEQ”) ap-
peal (1) a preliminary injunction precluding
them from considering a landfill permit appli-
cation and (2) the denial of their motion to dis-
miss. Concluding that this dispute is not ripe
for adjudication, we vacate the injunction and
reverse and remand.
I.
In 1996, TSP Development, Limited, a
Texas limited partnership, filed a permit ap-
plication with the TCEQ requesting approval
to construct a landfill facility capable of han-
dling three classes of nonhazardous industrial
solid waste (“NISW”), the most noxious of
which is Class I.1 Plaintiffs, who are owners
or occupiers of land within one mile of the
proposed landfill, actively opposed the applica-
tion via administrative proceedings before the
State Office of Administrative Hearings
(“SOAH”), to which the matter had been re-
ferred for adjudication.
In April 2002, plaintiffs sued, alleging vio-
lations of their rights under the Fifth and Four-
teenth Amendments. Contending that no as-
certainable standards exist to guide the agen-
cy’s ultimate determination whether to ap-
prove the application, plaintiffs sought prelim-
inary and permanent injunctions barring Robert
Huston, the presiding officer of the TCEQ;
Ralph Marquez and Kathleen White, TCEQ
commission officers; Margaret Hoffman, the
TCEQ Executive director; and Sheila Taylor,
director of the SOAH (collectively “defen-
dants” or “agency defendants”), from further
considering the application until additional
rules and regulations governing NISW landfills
are promulgated.
The agency defendants filed a motion to
dismiss and a response in opposition to the ap-
plication for preliminary injunction; the court
denied the motion and issued the preliminary
injunction. The agency defendants appeal the
preliminary injunction under 28 U.S.C.
§ 1292(a)(1), and they appeal the denial of
their motion to dismiss pursuant to the district
court’s certification of that order under
§ 1292(b) and this court’s grant of permission
to take an interlocutory appeal.
II.
1 Class I NISW is industrial solid waste that
does not meet the definition of hazardous waste
promulgated by the EPA but, because of its con-
centration or physical or chemical characteristics,
is toxic, corrosive, flammable, a strong sensitizer
or irritant, or a generator of sudden pressure by de-
composition, heat, or other means, and may pose a
substantial present or potential danger to human
health or the environment if improperly processed,
stored, transported, or otherwise managed. See
TEX. HEALTH & SAFETY CODE § 361.003(2)-(3).

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Defendants contend that the district court
erred in exercising jurisdiction, because the
matter was not yet ripe for resolution. We re-
view ripeness determinations de novo.
Groome Res. Ltd., L.L.C. v. Parish of
Jefferson, 234 F.3d 192, 198-99 (5th Cir.
2000).
“A court should dismiss a case for lack of
‘ripeness’ when the case is abstract or hypo-
thetical.” New Orleans Pub. Serv., Inc. v.
Council of New Orleans, 833 F.2d 583, 586
(5th Cir. 1987). “The key considerations are
‘the fitness of the issues for judicial decision
and the hardship to the parties of withholding
court consideration.’” Id. (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
“A case is generally ripe if any remaining ques-
tions are purely legal ones; conversely, a case
is not ripe if further factual development is
required.”2
In Smith v. City of Brenham, 865 F.3d 662
(5th Cir. 1989), this court addressed similar
claims: Plaintiffs alleged that the city’s at-
tempts to obtain approval to operate a landfill
constituted an uncompensated taking and vio-
lated their rights to due process. Id. at 663.
We concluded that the due process challenge
to landfill permitting procedures by adjacent
property owners was “premature” where “[n]o
deprivation of property . . . ha[d] yet occurred
. . . . [and] certainly [would] not occur at least
until the permit process . . . ha[d] run its
course.” Id. at 664 (citing Williamson County
Regional Planning Comm’n v. Hamilton
Bank, 473 U.S. 172, 199-200 (1985)).
As plaintiffs note, however, Hidden Oaks
Ltd. v. City of Austin, 138 F.3d 1036 (5th Cir.
1998), limits Smith’s application here. In Hid-
den Oaks, id. at 1045 n.6, we held that
procedural due process claims not arising from
or ancillary to a takings claim are not subject
to the ripeness constraints set forth in Wil-
liamson. Because the instant plaintiffs have
not asserted a takings claim, the ripeness test
articulated in Williamson County and applied
in Smith does not control.
This does not end the ripeness inquiry,
however. Although plaintiffs’ claim need not
satisfy the specific test applicable to takings
claims, it still must comply with the principles
governing ripeness determinations generally.3
Those principles direct courts “[to] dismiss a
case for lack of ‘ripeness’ when the case is ab-
stract or hypothetical.” New Orleans Pub.
Serv., Inc. v. Council of New Orleans, 833
F.2d 583, 586 (5th Cir. 1987). In making this
determination, “[t]he key considerations are
‘the fitness of the issues for judicial decision
and the hardship to the parties of withholding
court consideration.’”4 “A case is generally
ripe if any remaining questions are purely legal
ones; conversely, a case is not ripe if further
factual development is required.” Id. at 587.
Under these principles, this dispute is not
2 Id.; see also Texas v. United States, 523 U.S.
296, 300 (1998) (“A claim is not ripe for adju-
dication if it rests upon contingent future events
that may not occur as anticipated, or indeed may
not occur at all” (citation and internal quotation
marks omitted)).
3 See John Corp. v. City of Houston, 214 F.3d
573, 586 (5th Cir. 2000) (“In determining that
[plaintiffs’] procedural due process claim is unripe,
we do not apply Williamson County per se, but
rather the general rule that a claim is not ripe if
additional factual development is necessary.”).
4 Id. at 586-87 (quoting Abbott Labs. v. Gard-
ner, 387 U.S. 136, 149 (1967)).

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ripe for judicial resolution. The plaintiffs con-
tend they have been injured by TCEQ’s failure
to afford them due process in its consideration
of the landfill permit. The constitutional right
to due process is not, however, an abstract
right to hearings conducted according to fair
procedural rules. Rather, it is the right not to
be deprived of life, liberty, or property without
such procedural protections.5
Even assuming plaintiffs have identified
constitutionally protected property interests
that would be harmed by approval of the per-
mit application, they have not suffered any de-
privation, because the TCEQ permitting pro-
cess has not yet run its course. The
application may or may not be granted, and
thus plaintiffs may or may not be harmed.
Therefore, until the TCEQ issues the permit,
this disput e remains “abstract and
hypothetical”6 and thus unripe for judicial
review.7
The injunction is VACATED, and this mat-
ter is REVERSED and REMANDED for any
necessary proceedings.8
5 U.S. CONST. amend. XIV, § 1; see Baldwin v.
Daniels, 250 F.3d 943, 946 (5th Cir. 2001) (“To
bring a procedural due process claim under § 1983,
a plaintiff must first identify a protected life,
liberty or property interest and then prove that
governmental action resulted in a deprivation of
that interest.”); Johnson v. Morris, 903 F.2d 996,
999 (4th Cir. 1990) (“In order to claim entitlement
to the protections of the due process clause . . . a
plaintiff must first show that he has a
constitutionally protected ‘liberty’ or ‘property’ in-
terest, and that he has been ‘deprived’ of that pro-
tected interest by some form of ‘state action.’”
(citation and internal quotation marks omitted)).
6 New Orleans Pub. Serv., 833 F.2d at 586.
7See Texas v. United States, 523 U.S. 296, 300
(1998) (“A claim is not ripe for adjudication if it
rests upon contingent future events that may not
(continued...)
7(...continued)
occur as anticipated, or indeed may not occur at
all.” (citation and internal quotation marks
omitted)).
8 The motion to dismiss for mootness is
DENIED.

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