CME v. Tooele County

2009 UT 34
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Cedar Mountain Environmental, Inc., No. 20070320
a Utah Corporation, and Charles A.
Judd, an individual,
Plaintiffs and Appellants,
v.
Tooele County, a political subdivision
of the State of Utah, acting by and
through the Tooele County Commission,
Defendant and Appellee,
EnergySolutions, LLC, a Utah Limited
Liability Company, F I L E D
Intervenor, Defendant, and
Appellee. June 12, 2009
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Third District, Tooele Dep’t
The Honorable Mark S. Kouris
No. 050300556
Attorneys: James S. Lowrie, Lewis M. Francis, Salt Lake City,
for plaintiffs
Barton H. Kunz II, Craig V. Wentz, Salt Lake City,
for defendant Tooele County
Alan L. Sullivan, Troy L. Booher, Tyler L. Murray,
Salt Lake City, for Intervenor-defendant Energy
Solutions
---
DURHAM, Chief Justice:
¶1 Appellants, Cedar Mountain Environmental and Charles
Judd (collectively, CME), appeal the district court’s grant of
summary judgment to Tooele County (the County) and
EnergySolutions, LLC and the denial of CME’s cross-motion for
summary judgment. We reverse.
BACKGROUND
¶2 CME transports low-level radioactive waste. Interested
in developing a nuclear material disposal site, CME once owned

No. 20070320 2
and, at the time of this appeal, leased property in Tooele County
that adjoins the location of EnergySolutions’ nuclear material
disposal site.
¶3 To establish radioactive material disposal sites in
Tooele County, applicants must obtain a conditional use permit
and locate their disposal facilities within the hazardous waste
corridor. In 1987 Tooele County granted EnergySolutions a
conditional use permit to permanently dispose of radioactive
waste material on the property located within Section 32. In
April 2003 CME applied to Tooele County for a temporary
conditional use permit to store low-level radioactive waste on
Section 29, the adjoining property to Section 32. At the time,
all of the Section 29 property was located in the hazardous waste
corridor. EnergySolutions opposed this application. In
September 2003, the Tooele County Planning Commission denied
CME’s conditional use permit application based on CME’s failure
to prove the need for another radioactive waste facility in
Tooele County. The Tooele County Board of Commissioners affirmed
the denial in March 2004.
¶4 In January 2005 CME granted a purchase option on parcel
B of Section 29 to Broken Arrow, Inc. CME then sold the
remaining property it owned in Section 29 to EnergySolutions. On
April 12, 2005, the Tooele County Board of Commissioners enacted
ordinance 2005-11, which changed the configuration of the
hazardous waste corridor, greatly reducing its size. On April
18, 2005, the Tooele County Board of Commissioners approved
EnergySolutions’ request to amend the 1987 Conditional Use Permit
to include its newly acquired Section 29 property. CME initiated
a declaratory and inverse condemnation action on May 12, 2005 in
the district court. CME argued that Tooele County’s decisions to
amend EnergySolutions’ conditional use permit and reduce the size
of the hazardous waste corridor ignored existing land use
ordinances, notice requirements, and also evidenced a bias in
favor of EnergySolutions.
¶5 In May 2005, after CME filed suit, Broken Arrow
exercised its option to purchase parcel B of Section 29 from CME.
Broken Arrow then sold this property to EnergySolutions.
Following the sale, CME and EnergySolutions entered a lease
agreement wherein CME leased parcel B from EnergySolutions.
¶6 In the district court action, EnergySolutions moved for
summary judgment, arguing, among other things, that CME lacked
standing to bring the case. CME responded with a cross-motion
for summary judgment, asking the district court to find that the
County’s decisions to amend the conditional use permit and reduce
the hazardous waste corridor were arbitrary, capricious, or

3 No. 20070320
illegal. The district court granted EnergySolutions’ motion,
holding that CME lacked standing to challenge the County’s
decisions and that CME’s claims were moot.
STANDARD OF REVIEW
¶7 “Granting summary judgment is appropriate only in the
absence of any genuine issue of material fact and where the
moving party is entitled to judgment as a matter of law. S. Utah
Wilderness Alliance v. Automated Geographic Reference Ctr., 2008
UT 88, ¶ 12, 200 P.3d 643. Therefore, when “reviewing a district
court’s grant of summary judgment, we review the facts and all
reasonable inferences in the light most favorable to the
nonmoving party.” Id. Further, we grant “no deference to the
lower court’s legal conclusions and review them for correctness.”
Id. More specifically, for standing, we review legal
determinations for correctness, affording deference for “factual
determinations that bear upon the question of standing,” but
minimal deference to the district court’s application of the
facts to the law. Jones v. Barlow, 2007 UT 20, ¶ 10, 154 P.3d
808. “[A]ppellate courts review the issue of mootness de novo.”
Riverview Trenton R.R. Co. v. DSC, Ltd., 486 F.3d 940, 944 (6th
Cir. 2007).
DISCUSSION
I. CME HAS STANDING TO CHALLENGE BOTH LAND USE DECISIONS
¶8 The County Land Use, Development, and Management Act
(CLUDMA) governs land use challenges. Utah Code Ann. § 17-27a-
801(2)(a) (2005 & Supp. 2008). To seek equitable relief, in this
case declaratory relief, CLUDMA requires a party to show that it
is an “affected owner of real estate.” Utah Code Ann. § 17-27a-
802(1) (a) (2005). On May 12, 2005, when CME initiated this
action, it owned parcel B of Section 29. Therefore, because
“[s]tanding is determined as of the time the action is brought,”
Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005),
CME has satisfied this requirement.
¶9 More specifically, under CLUDMA, “[a]ny person
adversely affected by a final decision made in the exercise of or
in violation of the provision of this chapter may file a petition
for review of the decision with the district court within 30 days
after the local land use decision is final.” Utah Code Ann.
§ 17-27a-801(2)(a) (2005 & Supp. 2008) (emphasis added). This
statute incorporates the traditional standing test, which
requires a party to (1) “assert that it has been or will be
‘adversely affected by the [challenged] actions’”; (2) “allege a
causal relationship ‘between the injury to the party, the

No. 20070320 4
[challenged] actions and the relief requested’”; and,
(3) “request relief that is “‘substantially likely to redress the
injury claimed.’” Sierra Club v. Utah Air Quality Bd., 2006 UT
74, ¶ 19, 148 P.3d 960 (emphasis added)(alterations in
original)(quoting Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah
1983)). Thus, a party cannot fall back on the traditional
standing test if it fails CLUDMA’s statutory grant of standing,
as both tests share the element of an adverse effect. However,
the statutory and the traditional common law tests are not the
only avenues to gain standing; Utah law also allows parties to
gain standing if they can show that they are an appropriate party
raising issues of significant public importance--commonly
referred to as the alternative standing test. See id. ¶ 35;
Wash. County Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶ 17,
82 P.3d 1125 (stating that a party that cannot establish
statutory standing must show standing under the traditional or
alternative standing tests). In this case, CME argues it has
alleged sufficient facts to establish both statutory and
alternative standing. We address each argument in turn.
A. CME Has Standing Under CLUDMA
¶10 To obtain standing under CLUDMA, a party must show that
it is adversely affected by a county land use decision. Utah
Code Ann. § 17-27a-801(2)(a). Because this requirement is
identical to the first element of traditional standing, we rely
on traditional standing case law to interpret the statutory
requirement. Recently this court described an adverse effect as
an actual or potential injury that is “sufficiently
particularized” to give a party a “personal stake in the outcome
of the dispute.” Sierra Club, 2006 UT 74, ¶ 23. Focusing on the
personal stake, we explained in Sierra Club that as long as the
injury has a direct effect on the complaining party, and the case
presents a concrete dispute suited to resolution by the
judiciary, “others may also share their concerns and be subject
to the same specific, individualized injuries.” Id. ¶ 24. Yet,
if the injury complained of is a general injury to the community,
the party does not have a personal stake in the dispute, and
thus, has not shown that it is adversely affected. Id.
¶11 The appellees argue that while CME alleged a
particularized injury, it failed to prove the potential of such
harm; this argument is not supported by our case law. In most
cases, a party must only allege an adverse effect to gain
standing. Appellees rely on the court of appeals’ recent
decision in Specht v. Big Water Town to establish a proof
requirement. 2007 UT App 335, 172 P.3d 306. In Specht, the
court stated that to have standing to pursue a declaratory
judgment a party must “allege and prove special damages.” Id.

5 No. 20070320
¶ 11. What the court of appeals intended by this statement is
unclear; the court did not discuss the extent of proof required
because the plaintiff had not sufficiently alleged a
particularized injury. Further, the interpretation of this
holding offered by the appellees is not supported by existing
precedent. Instead, all the cited cases in Specht merely stand
for the position that a party must have standing to seek
declaratory relief--something very different from requiring a
party to prove its alleged harm at the standing analysis stage.
See id.
¶12 This court rarely imposes a requirement that a party
prove its alleged harm, or even causation, to establish standing.
Sierra Club, 2006 UT 74, ¶ 28 n.3, ¶ 32. This makes sense
because “[s]tanding questions arise early in the litigation,
usually before discovery and the introduction of the evidence”;
and to require a significant level of proof “would be unduly
burdensome” because it would require “litigants to invest the
time and money in gathering the evidence necessary to prove their
claim only to be denied standing.” Id. ¶ 32. Thus,
“[g]enerally, the determination of whether a plaintiff has
alleged a sufficient interest in order to satisfy the adverse
impact part of the traditional test can be made on the face of
the pleadings.” Id., ¶ 28 n.3. Only in rare cases is fact-
finding required to assess a party’s interest in a case. See id.
For example, in Washington County Water Conservancy District v.
Morgan, the court required the plaintiff to prove the existence
of an adverse impact because the “plaintiff’s interest in the
dispute depended upon whether [its] water originated from the
same source as the defendant’s.” Sierra Club, 2006 UT 74, ¶ 28,
n.3 (discussing Wash. County Water Conservancy Dist., 2003 UT 58,
¶¶ 2, 19). As a result, the court required the plaintiff to show
a measurable connection between its water source and the
defendant’s. In contrast, in Sierra Club, we found it sufficient
that the plaintiffs lived and participated in outdoor recreation
near the site of the plant that the Air Quality Board approved,
and determined that they need not undertake fact-finding to
establish their interest. Sierra Club, 2006 UT 74, ¶¶ 22, 28.
¶13 In this case, the adverse impact alleged by CME is akin
to that in Sierra Club. That is, the potential harm to CME
caused by the extension of the conditional use permit to
EnergySolutions’ Section 29 property is the result of the
proximity of CME to the property; this is apparent from the
pleadings. EnergySolutions alleges that CME has not sufficiently
shown that the potential harm it alleges was caused by the
amendment of EnergySolutions’ conditional use permit. We
disagree. First, as discussed above, to gain standing a party is
not required to prove its interest or causation--at least not to

No. 20070320 6
the extent required at trial. Id. ¶ 32. Second, proof that
storage of radioactive waste in Tooele County polluted
neighboring properties in the past is sufficient to establish a
more than speculative potential of future harm to neighboring
properties, such as CME. To establish standing, an alleged harm
can be actual or potential. Thus, under the statutory grant, CME
has alleged a particularized injury sufficient to give it a
personal stake in the underlying dispute over the amendment of
EnergySolutions’ conditional use permit; therefore, CME has
statutory standing to assert an action for declaratory judgment.
¶14 Similarly, CME has sufficiently alleged a
particularized injury arising out of the County’s decision to
redraw the hazardous waste corridor. As described by CME, the
new boundaries of the corridor “made it virtually impossible for
[the] remaining Section 29 parcel to be used for waste disposal
of any kind.” We agree. Such exclusion directly affects CME and
is sufficiently particularized to give CME a personal stake in
the outcome of the dispute over the validity of the newly drawn
hazardous waste corridor. Thus, we hold that the CME has
adequately alleged an adverse effect and thereby has statutory
standing.
B. CME Has Standing Under the Alternative Standing Test
¶15 A party has alternative standing when it is able to
show that it is “an appropriate party raising issues of
significant public importance.” Sierra Club, 2006 UT 74, ¶ 35.
As addressed by this court in Sierra Club, this test breaks down
to two elements: (1) is the plaintiff an appropriate party; and
(2) does the dispute raise an issue of significant public
importance. Id. ¶¶ 36-39.
¶16 First, CME is an appropriate party to challenge the
validity of the County’s land use decisions. To establish its
appropriateness, CME is not required to show that it is the most
appropriate party; instead, it is required to show that it “has
the interest necessary to effectively assist the court in
developing and reviewing all relevant legal and factual questions
and that the issues are unlikely to be raised if the party is
denied standing.” Id. (discussing the test established by
Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983)) (internal
quotation marks omitted). For example, in Sierra Club, we found
that the Sierra Club was an appropriate party because it had the
necessary interest in ensuring that the power plant at issue was
constructed and operated in compliance with all applicable state
and federal environmental laws and administrative procedures.
Id. ¶ 42. Further, we explained that the Sierra Club had the

7 No. 20070320
“interest and expertise necessary to investigate and review all
relevant legal and factual questions relating to the plant.” Id.
¶17 Similarly, in this case, CME has the necessary interest
and expertise. CME, as an adjoining property owner or occupant,
has a sufficient interest in the appropriate permitting of any
business with which it shares a boundary, especially a business
that stores or disposes of radioactive waste. As a competing
business interested in storing radioactive waste, it has an
interest in any modification in the locale wherein the County
allows radioactive waste businesses. Yet, it is CME’s
involvement in the nuclear waste industry that causes
EnergySolutions to assert it is not an appropriate party. That
is, EnergySolutions argues that CME is an inappropriate party
because it is a self-interested competitor in the hazardous waste
industry. However, there is nothing in this state’s standing
precedent that requires a party to have a beneficent interest--or
any particular character of interest. So, even though CME may be
challenging the issuance of the conditional use permit and the
reduction of the waste corridor because it wants to store nuclear
waste itself, that does not diminish its interest. Additionally,
CME has the necessary expertise to bring claims challenging the
County’s actions related to nuclear waste. As a competing waste-
oriented business, CME has a working knowledge of the laws and
regulations controlling radioactive waste and, therefore, has
sufficient expertise to assist the court in developing and
reviewing the legal and factual questions presented by a
challenge to the County’s land use decisions. Finally, no other
parties are likely or, in this case, permitted to challenge the
County’s actions, as the short, thirty-day time frame for doing
so has already passed. Thus, CME has the sufficient interest and
expertise to assist the court in adjudicating a challenge to the
County’s actions.
¶18 Second, the claims alleged by CME raise issues of
significant public importance. To show that an issue is of
significant importance, CME must not only show that the “issues
are of a sufficient weight but also that they are not more
appropriately addressed by another branch of government pursuant
to the political process.” Id. ¶ 39. And, “[t]he more
generalized the issues, the more likely they ought to be resolved
in the legislative or executive branches.” Id. To illustrate,
in Sierra Club, the court held that because power plants emit
hazardous chemicals, it is of significant public importance that
in granting permits government officials comply with all
applicable state and federal laws. Id. ¶ 44. Further, the court
explained that the legislative and executive branch had already
addressed the issue by passing environmental legislation and
adopting administrative procedures. Id. Thus, whether

No. 20070320 8
government officials actually complied with the legislation and
procedures was not more appropriately addressed by other
branches, but was instead the proper providence of the judiciary.
Id.
¶19 Again, this case is very similar to Sierra Club. The
land use actions challenged in this case involve an industry that
poses potential environmental and health-related harms to the
citizens of Tooele County. It is of significant public
importance that land use decisions involving the storage of
hazardous waste are properly made in accordance with state and
local laws. Further, the issues presented in this case are not
so general as to require legislative or administrative action.
Instead, the state and the County have already addressed the
issues by enacting procedures for granting a conditional use
permit and by creating the hazardous waste corridor. Thus,
whether the County in fact complied with its own procedures is a
proper issue for judicial resolution. In sum, by challenging the
County’s grant of a conditional use permit to EnergySolutions and
its redrawing of the hazardous waste corridor, CME has raised
issues of significant public importance. Therefore, CME, as an
appropriate party, has alternative standing to raise these issues
of public importance.
II. REVERSING THE COUNTY’S ACTIONS WOULD AFFECT CME’S RIGHTS,
AS WELL AS THE PUBLIC’S INTEREST, AND
THEREFORE CME’S CLAIMS ARE NOT MOOT
¶20 “‘An appeal is moot if during the pendency of the
appeal circumstances change so that the controversy is
eliminated, thereby rendering the relief requested impossible or
of no legal effect.’” Baker v. Stevens, 2005 UT 32, ¶ 9, 114
P.3d 580 (quoting Richards v. Baum, 914 P.2d 719, 720 (Utah
1996)). In reviewing CME’s standing, we have already determined
whether the plaintiff’s claims are redressable. Therefore, the
only question remaining is if any occurrence during the pendency
of the appeal has destroyed the ongoing controversy and made
legal relief impossible. EnergySolutions argues that CME’s
claims are moot because CME no longer owns any property adjoining
EnergySolutions’ Section 29 property. We are not persuaded. At
the time this case was argued, neither party had changed its
legal position. CME still occupied the property adjoining the
land covered by the amended conditional use permit. Thus, a
reversal of the challenged land use actions would still affect
its interests. Further, the County has not altered, repealed, or
amended the challenged land use decisions. Thus, the legal
controversy remains. The dissent relies on the expiration of
CME’s lease to argue that CME no longer has any interest in the
Tooele County property. The record does indicate that CME’s

9 No. 20070320
lease expired in May 2008, but it does not provide any
information regarding the impact of the expiration because it
occurred after this case was argued to this court. Therefore,
because we do not know the current status of CME’s property
interest, it cannot be dispositive as to the parties’ standing.
Additionally, because CME qualifies for alternative standing, the
public’s interest in requiring the government to follow its own
laws also still remains regardless of CME’s interest. Therefore,
circumstances have not changed to render CME’s claims moot.
CONCLUSION
¶21 We conclude that CME has standing pursuant to CLUDMA as
an adversely affected party. CME also has standing pursuant to
the alternative standing test as an appropriate party to raise an
issue of public importance. Further, reversing the County’s
actions would affect CME’s rights, as well as the public’s
interest; therefore, CME’s claims are not moot. Accordingly, we
reverse the district court’s opinion finding that CME lacks
standing and that its claims are moot and remand this case to the
district court for a determination of whether the County’s land
use decisions were valid.
---
¶22 Justice Parrish and Justice Nehring concur in Chief
Justice Durham’s opinion.
---
DURRANT, Associate Chief Justice, dissenting:
INTRODUCTION
¶23 The majority concludes that Cedar Mountain
Environmental (“CME”) has standing to bring its claims and that
its claims as presented to the district court were not moot.
Because I conclude that CME’s claims are now moot, I would not
reach the standing question and therefore I respectfully dissent.
BACKGROUND
¶24 The district court based its dismissal of CME’s claims,
in part, upon mootness grounds, determining that “the Court’s
action on this issue will have no effect on [CME’s] use of [its]
leased property.” When this case was pending before the district
court, CME was leasing property adjacent to property that is
owned and occupied by EnergySolutions and that is potentially the
site of EnergySolutions’ expanded hazardous waste activities.

1 Richards v. Baum, 914 P.2d 719, 720 (Utah 1996) (holding
that an appeal became moot when the party sold the real estate
that formed the basis of the claims).
No. 20070320 10
After the district court rendered its decision, and while the
case was pending before this court, CME’s lease of that property
expired. Nothing in the record, the briefing, or the arguments
before this court indicates that CME has entered into a new lease
agreement. Further, the lease indicated that its terms “[i]n no
event shall . . . extend beyond [May 31, 2008] without the prior
written consent of [EnergySolutions], which consent may be
granted or withheld in [EnergySolutions’] sole discretion.” The
record is void of any indication, written or otherwise, that
EnergySolutions consented to continue the terms of the lease.
Rather, all parties in their briefing refer only to the lease
agreement that has since expired.
¶25 The expired lease agreement between CME and
EnergySolutions specifically prohibited CME from competing with
EnergySolutions. The lease stated
4. Use of Premises. Any use of the Premises
by [CME] may not restrict or interfere with
[EnergySolutions’] businesses, as determined
by [EnergySolutions] in its sole discretion
. . . . [CME] may also use the property for
similar waste handling and transportation
functions so long as such use does not
compete or conflict with [EnergySolutions’]
businesses, as determined by
[EnergySolutions] in its sole discretion.
Before the district court and in its brief to this court,
EnergySolutions states that if CME were to store hazardous waste
on the leased property, then CME would be competing with
EnergySolutions and accordingly in violation of its lease.
ANALYSIS
¶26 Claims become moot when the “circumstances change so
that the controversy is eliminated, thereby rendering the relief
requested impossible or of no legal effect.”1 The mootness
doctrine stems from the general principle that courts should not
issue advisory opinions:
“The function of appellate courts, like that
of courts generally, is not to give opinions
on merely abstract or theoretical matters,

2 McRae v. Jackson, 526 P.2d 1190, 1191 (Utah 1974) (quoting
5 Am. Jur. 2d, Appeal and Error, § 761).
3 State v. Sims, 881 P.2d 840, 841 (Utah 1994) (quoting
Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989)).
4 Utah Ass’n of Counties v. Bush, 455 F.3d 1094, 1099 (10th
Cir. 2006).
5 Richards, 914 P.2d at 720; Burkett v. Schwendiman, 773
P.2d 42, 44 (Utah 1989) (dismissing an appeal of a trial court’s
decision to revoke a driver license because the one-year
revocation period had expired); McRae, 526 P.2d at 1192
(dismissing an appeal of a trial court’s declaration that a
regulation prohibiting private driver’s education to persons
under the age of 17 was null and void because the plaintiffs
already received their driver licenses).
6 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000).
11 No. 20070320
but only to decide actual controversies
injuriously affecting the rights of some
party to the litigation, and it has been held
that questions or cases which have become
moot or academic are not a proper subject to
review.”2
“An issue on appeal is considered moot when ‘the requested
judicial relief cannot affect the rights of the litigants.’”3
Unlike standing, which must be determined by the facts that
existed at the time the suit was filed,4 mootness can be
determined by facts that change or develop as the suit is
pending. Indeed, facts that change after a district court
renders a judgment can make an appeal moot, such that the
appellate court is not in a position to review the district court
decision.5 Regardless of when mootness is determined, the test
remains whether the requested judicial relief can affect the
rights of the litigants. The burden of persuading the court that
an issue is moot “lies with the party asserting mootness.”6
¶27 CME requested that the district court find that Tooele
County’s decisions to reduce the size of the hazardous waste
corridor and to grant EnergySolutions’ application for an
amendment to its conditional use permit were arbitrary,
capricious, or illegal. Accordingly, CME sought to have the
district court declare the county’s two decisions unenforceable.
Because, in my view, declaring these decisions unenforceable will
not affect CME’s rights, I conclude that CME’s claims are moot.

7 After Tooele County argued in its brief that CME’s lease
was soon to expire, CME responded only with the statement that it
was currently leasing a parcel on Section 29 and included as
support the lease dated May 20, 2005, which expired on May 31,
2008. CME did not rebut the argument that its lease of the
parcel was soon to expire.
No. 20070320 12
¶28 CME has asserted a number of possible injuries
resulting from the county’s decisions that it claims could be
remedied by declaring the decisions unenforceable. First, CME
contends that the redrawing of the corridor effectively excluded
CME’s parcel on Section 29, as well as any other land originally
in the corridor not owned by EnergySolutions that CME could have
potentially purchased. Second, as a tenant of a parcel on
Section 29, CME contends that the land CME was leasing will be
negatively affected due to radioactive drift from potential
operations on EnergySolutions’ newly acquired property. And
finally, CME states that it has an interest in protecting the
public’s right to a fair administrative process. CME contends
that this public interest has been harmed by Tooele County’s
decisions. I consider each of CME’s alleged injuries in turn.
I. REDRAWING THE CORRIDOR DOES NOT AFFECT ANY OF CME’S CURRENT
RIGHTS
¶29 CME argues that successfully challenging Tooele
County’s changes to the corridor will affect CME’s rights in two
ways. First, a successful challenge will effectively restore
CME’s leased parcel on Section 29 to the corridor, thereby
allowing CME to use the parcel for hazardous waste storage.
Second, returning the corridor to its original size will allow
CME to purchase additional land within the corridor to conduct
waste storage activities.
¶30 I conclude that the requested relief will not affect
CME’s rights on either theory. With regard to CME’s leased
parcel, the lease expired on May 31, 2008.7 Further, the lease
prohibited CME from competing with EnergySolutions. Therefore,
even if the parcel that CME had leased from EnergySolutions was
part of the corridor, CME could not use the parcel for waste
storage because CME no longer has any interest in the parcel and
any interest that CME had restricted CME from conducting waste
storage on the parcel. Accordingly, the relief CME requests in
this case would not affect CME’s rights regarding use of the
parcel on Section 29.

13 No. 20070320
¶31 With regard to the potential purchase of other property
that was excluded from the redrawn corridor, CME does not have
any actual rights associated with that property. CME is not
leasing, nor does CME own any parcel of that property. We do not
recognize a protectable right to purchase property unless that
right is conferred by contract. Because CME has no contractual
rights pertaining to the other property that was excluded from
the redrawn corridor, there is no way in which our overturning
Tooele County’s decisions will affect CME in relation to that
property.
II. THE ALLEGED INCREASES IN RADIOACTIVE DRIFT DO NOT AFFECT
CME, WHICH NO LONGER HAS ANY INTEREST IN THE ADJOINING PROPERTY
¶32 CME contends that as a leasee of a parcel of land that
is adjacent to EnergySolutions’ newly acquired land, CME faces
increased risks from EnergySolutions’ waste disposal activities.
CME further contends that if we grant the relief CME requests CME
would not face these increased risks. CME’s arguments are
unpersuasive. CME’s lease for the parcel in question has
expired. Accordingly, CME no longer faces the risks that it has
alleged.
III. THE MOOTNESS DOCTRINE PROHIBITS LAND USE CHALLENGES TO
CONTINUE AFTER ALL OF THE LITIGANT’S RELEVANT PROPERTY RIGHTS
HAVE BEEN TRANSFERRED
¶33 Finally, CME claims that the public has a right, which
CME seeks to enforce, to a fair and impartial administrative
process. The majority agrees with CME’s argument and determines
that CME has alternative standing based on its representation of
this public interest. Although somewhat facially persuasive,
CME’s argument would create dire long-term consequences for the
mootness doctrine. Under CME’s argument, no matter how the
circumstances may change, a party could always argue that, at the
very least, the requested relief would affect the integrity of
the administrative process. Accordingly, the adoption of CME’s
position would effectively eviscerate the mootness doctrine as it
pertains to land use challenges. For this reason, I decline to
adopt CME’s reasoning.
CONCLUSION
¶34 CME’s claims are now moot because CME does not have a
right that will be affected if the district court were to declare
Tooele County’s decisions unenforceable. CME does not have any
potentially affected property rights because CME does not own,
nor does CME at this time lease, any property in the vicinity of
the corridor. Further, the mootness doctrine prohibits land use

No. 20070320 14
challenges from continuing after all of the litigant’s relevant
property rights have been transferred. For these reasons, I
would dismiss this appeal.
---
¶35 Justice Wilkins concurs in Associate Chief Justice
Durrant’s dissenting opinion.