Daniel L. Miller, d/b/a D.L. Miller Logging v. Montgomery County, Maryland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2244
DANIEL L. MILLER, d/b/a D.L. Miller Logging,
Plaintiff - Appellant,
v.
MONTGOMERY COUNTY, MARYLAND; ISIAH LEGGETT, County
Executive, Montgomery County; ROBERT HOYT, Director,
Montgomery County Department of Environmental Protection;
STAN EDWARDS, Division Chief, Division of Environmental
Policy and Compliance; LAURA MILLER, County Arborist,
Division of Environmental Policy and Compliance; THE
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION;
ROLLIN STANLEY, Planning Director, The Maryland-National
Capital Park and Planning Commission; MARK PFEFFERLE, Forest
Conservation Program Manager, The Maryland-National Capital
Park and Planning Commission,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cv-03137-AW)
Argued: October 27, 2011 Decided: December 19, 2011
Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Chief Judge Traxler and Judge Gregory joined.

-- 1 of 16 --

2
ARGUED: Michele McDaniel Rosenfeld, ROSENFELD & ROSENFELD, LLC,
Potomac, Maryland, for Appellant. Edward Barry Lattner, COUNTY
ATTORNEY’S OFFICE, Rockville, Maryland; Jared Michael McCarthy,
MARYLAND-NATIONAL CAPITAL PARK & PLANNING COMMISSION, Riverdale,
Maryland, for Appellees. ON BRIEF: Marc P. Hansen, Acting
County Attorney, Clifford L. Royalty, Division Chief, COUNTY
ATTORNEY’S OFFICE, Rockville, Maryland, for County Appellees;
Adrian R. Gardner, General Counsel, MARYLAND-NATIONAL CAPITAL
PARK & PLANNING COMMISSION, Riverdale, Maryland, for Commission
Appellees.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 16 --

3
BARBARA MILANO KEENAN, Circuit Judge:
Daniel L. Miller appeals from the district court’s
dismissal of his complaint on the ground that he lacked standing
to pursue his claims. In his complaint, Miller alleged that
Montgomery County, Maryland (the County) and certain County
employees and administrative agencies (collectively, the
Defendants)1
The district court determined, among other things, that
Miller did not suffer an “injury in fact” from the denial of the
application because the landowner, rather than Miller, was the
person who signed the application and the accompanying documents
in support of the application. Upon our review, we hold that
the district court correctly concluded that Miller lacked
standing and, therefore, we affirm the district court’s
judgment.
wrongfully denied an application for an exemption
from the County’s Forest Conservation Law relating to certain
trees that Miller intended to harvest under a contract he
executed with a landowner.
1 The Defendants named in Miller’s complaint included:
Montgomery County, Maryland; County Executive Isiah Leggett;
Robert Hoyt, director of the County’s Department of
Environmental Protection; Stan Edwards, Chief of the
Department’s Environmental Policy and Compliance Division; Laura
Miller, the County Arborist; the Maryland-National Capital Park
and Planning Commission; Rollin Stanley, the Commission’s
Planning Director; and Mark Pfefferle, the Commission’s Forest
Conservation Program Director.

-- 3 of 16 --

4
I.
Miller entered into a contract (the contract) with Dr.
Charles Mess to purchase and harvest timber from 584 trees
located on Dr. Mess’ property in the County (the timber
harvesting operation). The contract required Miller to comply
with all federal, state, and county regulations governing timber
harvesting. The contract further provided that Miller was
ultimately responsible for obtaining all permits necessary to
harvest the timber.
Under the Montgomery County Code, the harvesting of trees
is subject to certain regulatory provisions (the Forest
Conservation Law). However, a qualifying “commercial logging
and timber harvesting operation” may obtain an exemption from
the Forest Conservation Law.2
2 The term “commercial logging [and] timber harvesting
operation” is defined in the Montgomery County Code as the
“cutting and removing of tree stems from a site for commercial
purposes, leaving the root mass intact.” Montgomery County Code
§ 22A-3. There are numerous exemptions to the Forest
Conservation Law other than the “commercial logging and timber
harvesting” exemption, none of which are at issue in this case.
Montgomery County Code § 22A-5(d)
(the exemption). To qualify for the exemption, a timber
harvesting operation must meet three requirements: 1) the
property on which such an operation is conducted will not be
subject to development for five years after the timber
harvesting occurs; 2) a sediment control permit must be obtained

-- 4 of 16 --

5
before conducting the operation; and 3) the County must approve
any timber harvesting operation pursuant to a determination by
the County Arborist “that the logging or timber harvesting plan
is not inconsistent with County forest management objectives and
is otherwise appropriate.” Id.
Although the contract specified that Miller was responsible
for obtaining the necessary permits, Dr. Mess signed the
applications and associated documents relating to the exemption.
These documents included the following:
1) The application for the “Forest Conservation Plan
Exemption,” signed by Dr. Mess, listing Dr. Mess as
the sole “applicant” for the exemption, and
identifying the name of the plan as the “Charles F.
Mess Timber Harvest” plan;3
2) A sworn, notarized “Forest Declaration of Intent,”
signed by Dr. Mess, in which he pledged not to develop
his property for five years, pursuant to the first
requirement for obtaining an exemption;
3) A sworn, notarized “Forest Conservation Ordinance
Declaration of Intent for Forestry Activities,” signed
by Dr. Mess, making certain promises and
representations concerning the timber harvesting
operation and Dr. Mess’ future use of his land;
4) The application for a “Sediment Control Permit,”
signed by Dr. Mess, a necessary step towards
3 On this application, there was a section providing for an
additional “contact person.” The completed application listed
Vincent H. Berg, a consultant hired by Miller, as the additional
contact person, rather than Miller himself.

-- 5 of 16 --

6
satisfying the second requirement for obtaining an
exemption;4
5) A “Compliance Agreement for the Standard Erosion
and Sediment Control Plan for Forest Harvest
Operations” (the Compliance Agreement), signed by Dr.
Mess, in which he agreed to allow inspectors a right
of entry onto his land to monitor the operation’s
compliance with County regulations, and in which Dr.
Mess affirmed that it was his responsibility as
property owner to prevent accelerated erosion and
sedimentation during and after the operation; Miller
signed this document on the signature block for the
“Operator” of the timber harvest operation.
and
Additionally, several documents were submitted on Dr. Mess’
behalf by William V. Brumbley, a registered forester hired by
Dr. Mess, including:
1) A “Forest Management and Stewardship Plan,”
submitted for “Charles F. Mess, Et Al, Trustees,” by
Brumbley, to the County Arborist at her request; and
2) An application for a “Timber Harvest Exemption”
submitted by Brumbley to the County Arborist,
containing information that the County Arborist had
requested from Dr. Mess.
The County Arborist declined to approve the timber harvest
plan on the ground that the plan did not satisfy the County’s
“forest management objectives.” Almost all the written
correspondence concerning the County Arborist’s rejection of the
timber harvest plan was exchanged between her and either Dr.
4 The application for the Sediment Control Permit was
approved, and the permit was issued to Dr. Mess in his name.

-- 6 of 16 --

7
Mess or Brumbley.5
Although the documents signed by Dr. Mess contained only a
few references to Miller, Miller undertook certain acts to help
obtain the necessary approvals of Dr. Mess’ applications.
According to Miller, he participated in the application process
by:
Because the County Arborist did not approve
Dr. Mess’ timber harvest plan, the timber harvesting operation
did not qualify for an exemption from the County.
1) Paying the required permit fees;
2) “Walking [Dr. Mess’] property” with Berg, Miller’s
consultant, to obtain certain information required
by the County in its permitting process;
3) Meeting with County officials to discuss the merits
of the timber harvest application after the
application was denied;
4) Signing the Compliance Agreement as the “Operator”
of the timber harvest operation; and
5) Sending an email through his consultant to the
Maryland-National Capital Park and Planning
Commission (the Commission) seeking a meeting to
discuss the County Arborist’s decision, an action
that Miller characterizes as his “attempt[] to file
an administrative appeal.”
5 Additionally, an April 2009 email was sent from Berg,
Miller’s consultant, to Candy Bunnag, the Environmental Planner
for the Maryland-National Capital Park and Planning Commission.
In this email, Berg requests that the Commission schedule a
meeting to discuss the County Arborist’s refusal to approve the
Timber Harvest Plan.

-- 7 of 16 --

8
It is undisputed, however, that all the necessary applications
were signed by Dr. Mess and were submitted in his name, and that
only one of those documents contained a reference to Miller.
On November 23, 2009, Miller filed a complaint against the
Defendants in the United States District Court for the District
of Maryland, contending that the Defendants wrongfully denied
the application for an exemption to conduct the timber harvest
operation. Miller later filed an amended complaint against the
Defendants asserting eleven causes of action under state and
federal law, including causes of action for violations of the
Due Process and Equal Protection Clauses of the United States
Constitution, the Takings Clauses of the United States and
Maryland Constitutions, and several common law torts.6
6 The eleven counts in the amended complaint include claims
for: equal protection, in violation of the Fourteenth Amendment
to the United States Constitution and 42 U.S.C. § 1983 (Count
I); substantive due process, in violation of the Fourteenth
Amendment and 42 U.S.C. § 1983 (Count II); procedural due
process, in violation of the Fourteenth Amendment and 42 U.S.C.
§ 1983 (Counts III, IV, and V); unlawful taking of property, in
violation of the Fifth Amendment and 42 U.S.C. § 1983, and the
Maryland State Constitution (Count VI and VII), and several
state common law tort claims, including tortious interference
with contractual relations (Count VIII), conspiracy to commit
tortious interference with contractual relations (Count IX),
tortious interference with prospective economic relationships
(Count X), and conspiracy to commit tortious interference with
prospective economic relationships (Count XI).
Notably,
Dr. Mess did not join Miller’s lawsuit and is not a party in
this case.

-- 8 of 16 --

9
The Defendants filed a motion seeking to dismiss Miller’s
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. In their motion, the Defendants argued that Miller
lacked standing to pursue the federal and state constitutional
claims, because Dr. Mess was not a party to the lawsuit.
Addressing the claims asserted under the Takings Clauses, the
Defendants contended that Miller lacked standing to pursue those
claims because he did not apply for the exemption. The
Defendants also contended that Miller could not pursue his
claims under the Due Process Clause, because he had only an
expectation of a protected property interest in the subject
matter, rather than an existing protected property interest.
The district court agreed with the Defendants’ arguments and
granted their motion to dismiss. Miller timely noted an appeal.7
II.
We review de novo the district court’s decision granting
the Defendants’ motion to dismiss and, in conducting our review,
we assume as true all well-pleaded facts and draw all reasonable
inferences in favor of the plaintiff. Nemet Chevrolet, Ltd. v.
7 Additionally, the Defendants argued, and the district
court agreed, that Miller’s complaint failed to state a claim
for which relief could be granted with respect to the state
common law tort claims. Miller has not appealed the district
court’s dismissal of his common law tort claims.

-- 9 of 16 --

10
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).
However, we will not accept as true any unwarranted inferences
or unreasonable conclusions. Id.
We first address Miller’s argument that the district court
erred in holding that he lacked standing to pursue this action
independently of Dr. Mess. The requirement of standing is a
threshold requirement implicating the jurisdiction of the
federal courts, and is “perhaps the most important” condition
for a justiciable claim. Allen v. Wright, 468 U.S. 737, 750
(1984). The standing inquiry ensures that a plaintiff has a
sufficient personal stake in a dispute to render its judicial
resolution appropriate. See id. at 750-51.
To meet the minimum constitutional requirements for
standing, a plaintiff must establish three elements: (1) that
the plaintiff has sustained an injury in fact; (2) that the
injury is traceable to the defendants’ actions; and (3) that the
injury likely can be redressed by a favorable judicial decision.
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629
F.3d 387, 396 (4th Cir. 2011) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)). To demonstrate an
injury in fact, a plaintiff must suffer an invasion of a
legally-protected interest that is concrete and particularized,
as well as actual or imminent. Id. (citing Lujan, 504 U.S. at
560).

-- 10 of 16 --

11
In the present case, Miller has failed to establish that he
suffered an “injury in fact.” The gravamen of Miller’s
complaint is the Defendants’ failure to grant the application
for an exemption from the Forest Conservation Law. However, it
was not Miller who made this application. As stated above, the
sole applicant was Dr. Mess, who signed the application for the
Forest Conservation Plan Exemption. Additionally, Dr. Mess, not
Miller, signed the Forest Declaration of Intent, applied for and
received the Sediment Control Permit issued only in Dr. Mess’
name, and signed the Forest Conservation Ordinance Declaration
of Intent in which he made certain promises regarding the future
use of his land. Miller’s signature as “the Operator” was
required on only one of the necessary documents, the Compliance
Agreement form, which Dr. Mess also signed as the “Landowner”.
Moreover, by signing all the required documents, Dr. Mess, not
Miller, made various promises and representations concerning the
projected use of Dr. Mess’ property. Thus, any exemption
allowed by the County would have been granted to Dr. Mess, not
to Miller.
Because it is undisputed that Dr. Mess signed all the
necessary documents comprising the exemption application, we
agree with the district court’s conclusion that Miller “had

-- 11 of 16 --

12
little to no involvement” in the exemption application process.8
We observe that our holding is in accord with the Seventh
Circuit’s decision in
Thus, the only person in this case aggrieved by the Defendants’
failure to approve the exemption was Dr. Mess.
Rosenberg v. Tazewell Cnty., 882 F.2d 1165
(7th Cir. 1989), a case presenting analogous facts. There, a
landowner entered into a contract with a developer for the sale
of a parcel of land. Id. at 1166. The contract was contingent
on the developer’s construction of an energy-generating facility
on the land, which in turn was contingent on obtaining certain
necessary construction permits from state and local authorities.
Id. The developer submitted an application to the county board
for approval of the proposed facility location, which the board
rejected. Id. at 1166-67. Because the county board did not
approve the application, the sale of the land was not
consummated. Id.
After the county board’s decision, the landowner filed a
lawsuit against the county, alleging similar takings and due
process clause violations as those alleged by Miller in the
present case. The district court dismissed the landowner’s
at 1167.
8 Miller argues that someone in his position is authorized
to file the necessary documents in support of an application for
an exemption. We conclude that this argument is not relevant
here because even if Miller could have submitted such documents,
the fact is that he did not do so.

-- 12 of 16 --

13
lawsuit on standing grounds, holding that the landowner lacked
standing because his contract with the developer “gave rise only
to an expectation that the agreement would be consummated.” Id.
at 1167. The Seventh Circuit affirmed the district court’s
holding, concluding that the county board’s rejection pertained
only to the applicant, in that case the developer, not to the
landowner who had failed to join in the application, and that
the landowner failed to meet the “injury in fact” requirement to
establish standing. Id.
In this case, Miller stands in a similar position to the
landowner in
at 1169.
Rosenberg, because they each filed a lawsuit
complaining about the denial of a permit for which they did not
apply. Thus, consistent with the reasoning articulated by the
Seventh Circuit, Miller failed to satisfy the “injury in fact”
requirement and lacked standing to pursue this action because
the Defendants rejected Dr. Mess’ application, not Miller’s.9
See id.
9 Additionally, the district dismissed Miller’s due process
claims for lack of standing on the ground that he did not have a
constitutionally-protected property interest. We agree with the
district court’s conclusion, because Miller’s right to harvest
the timber was contingent on securing the required permits
issued at the discretion of the County Arborist. Thus, Miller
merely had an expected, rather than an existing, property
interest, which was insufficient to support either a substantive
or procedural due process claim. See Gardner v. City of
Baltimore Mayor and City Council, 969 F.2d 63, 68 (4th Cir.
1992) (holding that “[a]ny significant discretion conferred”
(Continued)

-- 13 of 16 --

14
We next address Miller’s argument that he had standing to
bring this action under the third-party standing doctrine. The
doctrine of third-party standing allows a plaintiff to bring an
action on behalf of a third party, alleging an injury sustained
by that third party, under certain circumstances in which the
third party cannot effectively protect its own interests. A
Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 363 n.3 (4th
Cir. 2008). In order to maintain third-party standing, a
plaintiff must establish the following three requirements: (1)
an injury-in-fact; (2) a close relationship between the
plaintiff and the person whose right is being asserted; and (3)
a hindrance to the third party’s ability to protect his or her
own interests. Freilich v. Upper Chesapeake Health, Inc., 313
F.3d 205, 215 (4th Cir. 2002) (citing Powers v. Ohio, 499 U.S.
400, 410-11 (1991)).
upon a government agency in considering a request for a permit
or an approval defeats a claim of a property interest in the
permit or approval.); Phelps v. Housing Auth. of Woodruff, 742
F.2d 816, 823 (4th Cir. 1984) (a contingent or expected property
interest, in contrast to an entitlement to a property interest,
does not “rise to the level” of a constitutionally protected
property interest for due process purposes). However, because
we hold that all Miller’s constitutional claims failed in view
of his inability to establish an “injury in fact,” this
additional basis supporting the dismissal of Miller’s due
process claims does not merit further explanation.

-- 14 of 16 --

15
We need not address the first two requirements of this test
because it is manifest that Miller cannot establish the third
required element, namely, any “hindrance to [Dr. Mess’] ability
to protect his[] own interests.” Id. Regarding this third
requirement, Miller does not identify, nor can we discern from
this record, any hindrance to Dr. Mess’ ability to protect his
interests in his own property and in the permit applications
that he submitted. Dr. Mess could have filed his own lawsuit or
could have joined in Miller’s lawsuit, but Dr. Mess did not take
such action. Therefore, we hold that the district court
correctly determined that Miller was not entitled to pursue his
claims under a theory of third-party standing.
III.
In conclusion, we hold that the district court did not err
in determining that Miller lacked standing to pursue his

-- 15 of 16 --

16
constitutional claims against the Defendants. Therefore, we
affirm the district court’s judgment.10
10 We reject Miller’s request, made for the first time in
his reply brief, to reverse the district court’s order and grant
Miller leave to file a second amended complaint adding Dr. Mess
as a plaintiff. Because Miller did not file a motion seeking
this relief in the district court, nor did he seek such relief
in his initial appellate brief, we will not consider his
request. See Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999) (claim not properly raised in appellant's
opening brief is deemed abandoned); Cavallo v. Star Enter., 100
F.3d 1150, 1152 n. 2 (4th Cir. 1996) (argument not raised in
opening brief, but raised for first time in reply brief, is
waived).
AFFIRMED

-- 16 of 16 --