Opinion
Civil File No. 02-1156 (MJD/RLE).
June 26, 2003.
James P. Peters, Esq., Peters Peters, Alexandria, Minnesota, Counsel for Plaintiff.
Thomas G. Jovanovich, Esq., and Sarah L. Smith, Esq., Rajkowski Hansmeier, St. Cloud, Minnesota, Counsel for Defendants Halquist Farms Inc. and Florence and William Floyd Halquist.
Paul D. Reuvers, Esq., and Jason J. Kuboushek, Esq., Iverson Reuvers, Bloomington, Minnesota, Counsel for Defendants County of Carver and Michael Lein.
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter is before the undersigned United States District Judge pursuant to Defendants' motions for summary judgment. Defendants Carver County and Michael Lein (collectively, the "Carver County Defendants") move for summary judgment on Count Six, Substantive Due Process; Count Seven, Procedural Due Process; and Count Eight, Inverse Condemnation, of the Complaint. Defendants Halquist Farms, Inc., Florence Halquist, and William Floyd Halquist (collectively, "Halquist Farms") move for summary judgment on four counts of the Complaint: Count One, Nuisance; Count Two. Trespass; Count Three, MERA; and Count Four, Negligence. For the reasons set forth below, Carver County and Michael Lein's motion is granted on Counts Six and Seven of the Complaint. The remaining claims are dismissed without prejudice.
Background
This case arises out of a dispute over the odors emanating from a 5-million gallon liquid manure basin (the "Manure Basin") at a dairy feedlot operation located in Carver County, Minnesota. The Manure Basin at issue is located on the Halquist Farms' feedlot in Belle Plaine, Minnesota. Halquist Farms is a family dairy corporation and feedlot operation owned by members of the Florence and William Halquist family. The farm has been in the Halquist family for more than 100 years. Halquist Farms is neighbored by James and Marilyn Kuhl's hog farm. The Kuhls have lived at their farm since 1964. The Halquist Farms' Manure Basin is located 350 feet from the Kuhls' house.
Simply put, the Kuhls do not like how the Manure Basin smells. According to the Kuhls, the Manure Basin emits strong and offensive odors and air emissions of a combination of chemicals. The Kuhls assert that the odors emanating from the manure basin have substantially interfered with the use and enjoyment of their property and, further, that the manure smells have diminished their property value. Specifically, the Kuhls contend that the odors force them out of their sleep at night, that they must search for a place to sleep in their home where the smells are not as strong, and that people will not visit them at their home because of these odors and air emissions. As a result, the Kuhls assert claims of nuisance, trespass, and violations of the Minnesota Environmental Rights Act ("MERA") against Halquist Farms. In addition, the Kuhls assert that the Carver County Defendants' have failed to enforce state and local laws surrounding the regulation of the Manure Basin, thus resulting in a deprivation of their constitutional rights and a taking of their property.
The Manure Basin was built in December 1992 as part of an expansion project on Halquist Farms that included a freestall dairy barn and a milking parlor. In August 1992, Florence Halquist, on behalf of Halquist Farms, submitted an application to Carver County for this expansion. ( See Lein Aff., Ex. A.) Neither her application nor the 1992 certificate of compliance issued by the County specifically mentioned the Manure Basin.
In 1994, the Kuhls complained to Carver County regarding the location of the Manure Basin and the odors stemming from it. On May 19, 1994, Michael Lein, the Carver County Environmental Services Director, sent a letter to Halquist Farms stating that the 1992 certificate of compliance "included an approval to construct a manure lagoon."
On December 21, 1995, Patrick Mader ("Mader") of the Minnesota Pollution Control Agency ("MPCA") wrote to Halquist Farms, notifying them that in order for the manure basin to meet MPCA design specifications, Halquist Farms would need to obtain permeability tests on the Manure Basin walls. Later, the MPCA obtained an estimate to conduct thin wall permeability tests on the Manure Basin. Mader ultimately requested four tests, one on each wall of the Manure Basin. The Kuhls assert that these tests were never conducted.
In June 1996, Carver County appropriated $4,000 for soil testing for the Manure Basin and retained B.A. Liesch Associates to conduct the testing. In November 1996, B.A. Liesch Associates submitted its soil investigation report to Carver County. Lein forwarded the soil investigation report to Ron Leaf of the MPCA. On December 31, 1996, Leaf issued a letter to Halquist Farms stating that they could continue to use the Manure Basin. The Kuhls contend that this "1996 certification" was granted in violation of Minn. R. Chapter 7020 and Minn. Stat. § 116.07, subd. 5, which requires a variance and a public hearing. In addition, the Kuhls assert that Lein failed to acknowledge to the MPCA that the permeability testing, as required by the MPCA, had not been conducted.
In 1997, the Halquists proposed to build a heifer barn with additional animal units. The Kuhls contend that there was no conditional use permit, notice, or hearing regarding these changes to the feedlot operation. However, the County issued a Conditional Use Permit to Halquist Farms, pursuant to the newly adopted Carver County Feedlot Ordinance, in July 1997. Further, the County asserts that a public hearing was held on July 15, 1997, and the CUP was granted after the Carver County Board of Commissioners received input from James Kuhl.
The Carver County Feedlot Ordinance was adopted on June 23, 1996.
In September 1998, the MPCA notified Halquist Farms that the Manure Basin had the potential to exceed the state ambient air quality standard for hydrogen sulfide and that the MPCA intended to work with Halquist Farms to address this issue. After the MPCA confirmed that emissions might exceed Minnesota state air quality standards, the MPCA and Halquist Farms entered into a Memorandum of Understanding that included measures for reducing Halquist Farms' hydrogen sulfide emissions. The Kuhls maintain that the MPCA and Halquist Farms have not abided by this Memorandum of Understanding.
In addition to their assertions against the Carver County Defendants regarding the regulation of the Manure Basin, the Kuhls raise several other issues. First, the Kuhls claim that the Carver County Defendants bypassed state and county legislation in issuing certificates of compliance in 1998 and 2000 for the Halquist family's Market Avenue feedlot operation, located on a different property. The Kuhls contend that the Market Avenue feedlot and the Halquist Farms feedlot are joint operations and that cattle are moved between the two properties. Second, the Kuhls maintain that Halquist Farms was housing more calves than permitted by its certificate of compliance. The Kuhls base this assertion on newspaper reports indicating that a fire that destroyed a dairy barn on the Halquist Farms feedlot in 2000 resulted in the loss of 108 calves, when only 70 calves were permitted under Halquist Farms' 1997 certificate of compliance. Finally, the Kuhls assert that Halquist Farms did not have a permit, certificate of compliance, or conditional use permit for a new free-stall heifer barn installed at the feedlot in 2001.
The Kuhls contend that the Manure Basin and feedlot have operated in violation of state and county laws since the construction of the Manure Basin in 1992. As a result, they assert a federal cause of action under 42 U.S.C. § 1983 for what they allege to be the Carver County Defendants' violation of their substantive and procedural due process rights. The Kuhls also allege multiple state claims against Halquist Farms: a nuisance action for creating and allowing air emissions and water contamination to pollute their property; a trespass claim for noxious air and water emissions that enter their property; a MERA claim pursuant to Minn. Stat. § 116B.01 for pollution of air, water, and other natural resources; and a negligence action for the negligent design, construction and operation of the feedlot and manure basin. Finally, the Kuhls allege an assault claim related to actions by William Floyd Halquist.
The Carver County Defendants admit that in 1994 they began receiving complaints from neighbors, including the Kuhls, regarding odors from the Halquist Farms feedlot. The County maintains, however, that there were no laws restricting the placement of the manure basin when the manure basin was built. The County further asserts that the conditional use permit issued for the construction of a heifer barn at the Halquist Farms property complied with the procedures outlined in the Carver County Feedlot Management Ordinance, including notice and a public hearing on the matter. The County contends that James Kuhl's concerns were heard during that public hearing. Finally, the County asserts that the MPCA has conducted odor monitoring and testing of the manure basin and has noted no violations of hydrogen sulfide standards except during the exempted pump-out times.
Discussion
1. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1; Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
The parties agree that the applicable statute of limitations period for the Kuhls' section 1983 claims is six years, pursuant to Minn. Stat. § 541.05, subdivision 1(5). See Berg v. Groschen, 437 N.W.2d 75, 777 (Minn.Ct.App. 1989). The Kuhls filed their Complaint on April 23, 2002. Thus, the section 1983 claim may only encompass the Carver County Defendants' actions alleged to have occurred after April 23, 1996.
Section 1983 is not in itself a source of substantive rights, but instead is a vehicle for asserting federal rights conferred elsewhere. Adewale v. Whalen, 21 F. Supp.2d 1006, 1014 (Minn. 1998), citing Bahr v. County of Martin, 771 F. Supp. 970, 974 (Minn. 1991). Thus, a plaintiff asserting claims under Section 1983 must identify a specific constitutional right allegedly deprived under color of state law. Adewale, 21 F. Supp.2d at 1014, citing Bahr, 771 F. Supp. at 974. Here, in Counts Six and Seven of their Complaint, the Kuhls assert that the Carver County Defendants deprived them of their rights to substantive and procedural due process in violation of section 1983.
"In analyzing a claim that the deprivation of property violates either procedural or substantive due process rights, a court must first consider whether the claimant has a protected property interest to which the Fourteenth Amendment's due process protection applies." Ellis v. City of Yankton, S.D., 69 F.3d 915, 917 (8th Cir. 1995), citing Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 445-46 (8th Cir. 1995). Protected property interests are created by state law, but federal law determines whether property interests rise to the level of constitutionally protected property interests. Id., citing Memphis Light, Gas Water Div. v. Craft, 436 U.S. 1, 9 (1978). State law can create a property interest by explicitly creating a property right, by "establishing statutory or regulatory measures that impose substantive limitations on the exercise of official discretion," or by "understandings between the state and the other party." Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 719 (8th Cir. 1995), quoting Craft v. Wipf, 836 F.2d 412, 416-17 (8th Cir. 1987). An interest is considered a protected property interest for the purposes of section 1983 when the plaintiff has a "legitimate claim to entitlement" as opposed to a "mere subjective expectancy." Batra v. Board of Regents of University of Nebraska, 79 F.3d 717, 720 (8th Cir. 1996), quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Here, the Kuhls "claim a liberty or property interest based on Minn. Stat. Sec. 116.07 and the Minnesota Rules, Chapter 7020, which operate as significant substantive restrictions on the actions of the County." (Pl's Mem. Opp. Summ. J. at 6.) The Court finds that the Kuhls have failed to demonstrate a constitutionally protected property interest under section 1983.
First, the state and county laws at issue do not create a property interest. Minnesota Statutes § 116.07 prescribes the powers and duties of the Minnesota Pollution Control Agency. See Minn. Stat. § 116.07, subd. 1. Minnesota Rules, Chapter 7020, "governs the storage, transportation, disposal and utilization of animal manure and process wastewaters" and sets requirements for "application for and issuance of permits for construction and operation of animal manure management and disposal or utilization systems for the protection of the environment." See Minn. Rules, Ch. 7020.0200. The Carver County Feedlot Management Ordinance regulates the "location, development, operation, and expansion of feedlots." While these laws operate to set standards for issuing permits and regulating land-use, they do not give the defendants a particular benefit that could be construed as a property interest for the purposes of a section 1983 claim.
In addition, nothing in the statutes, rules, or ordinances cited here gives the Kuhls a legitimate claim of entitlement based upon limited decision-making discretion. In Movers Warehouse, Inc. v. City of Little Canada, the Eighth Circuit held that there was no property interest in the renewal of a bingo hall license where the city retained discretion, without substantive limitations, to withhold approval of an application for license renewal. 71 F.3d 716, 718 (8th Cir. 1995). Here, too, the Carver County decision-makers have great discretion in either granting or denying a variance or conditional use permit within the meaning of the laws. Because of this discretion, there is no guarantee that the Plaintiffs would be absolutely "entitled" to the benefit that they seek — the denial of certification, variance, or conditional use permit for the Manure Basin.
Moreover, adjacent property owners in Minnesota do not have a property interest in the enforcement of zoning regulations and laws. Mohler v. City of St. Louis Park, 643 N.W.2d 623, 635-36 (Minn.Ct.App. 2002); see also Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994) (holding that there was no property interest in enforcement of the zoning ordinance and, therefore, there was no entitlement to due process). In Mohler, the Minnesota Court of Appeals reasoned:
State law and the city's ordinance recognize that certain adjacent property owners can sue to require enforcement of the zoning laws. It does not necessarily follow, however, that this right confers a protected property interest for the purposes of the substantive due process clause and 42 U.S.C. § 1983. Minnesota law has recognized that zoning ordinances do not create a property interest in adjacent landowners643 N.W.2d at 635 (internal citations omitted).
Here, the Minnesota statutes, rules, and the Carver County feedlot ordinance contain provisions regarding notice and public hearing. These processes alone, however, are insufficient to create a constitutionally protected property right to trigger a substantive or procedural due process violation. Procedures alone do not create a substantive property right. Bituminous Materials, Inc. v. Rice County, Minn., 126 F.3d 1068 (8th Cir. 1997), citing Stow v. Cochran, 819 F.2d 864, 866 (8th Cir. 1987); see also Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) ("The deprivation of a procedural right to be heard, however, is not actionable when there is no protected right at stake"); Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990); New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1479 (7th Cir. 1990). A law's notice and hearing provisions alone do not entitle the Kuhls to the benefit of a denial of a certificate of compliance, variance, or conditional use permit. The procedures proffered by the statutes and ordinance do not establish a property interest where the statute does not provide substantive rules of entitlement. North Mem'l Med. Ctr. v. Goinez, 59 F.3d 735, 740 (8th Cir. 1995). The decision to grant or deny the variance or conditional use permit remains vested in the decision-makers. While the notice and hearing itself may sway the decision, it does not in fact place a significant substantive restriction on the decision-makers' discretion sufficient to create an entitlement to a benefit. Id.; see also Hogue v. Clinton, 791 F.2d 1318, 1324 (8th Cir.), cert. denied, 479 U.S. 1008 (1986).
This does not leave the Kuhls without a remedy. The Kuhls may be able to enforce the statutes, rules, and ordinances that the Carver County Defendants have allegedly violated. See Mohler, 64 N.W.2d at 635. They may also have valid claims in tort against Halquist Farms. However, they have not asserted a protected property interest for the purposes of a section 1983 claim. Accordingly, summary judgment must be granted on the Kuhls' substantive due process and procedural due process claims against Carver County and Lein.
The Kuhls do not allege suit against Lein in his personal capacity in their Complaint. As such, the section 1983 claims are against Lein in his official capacity and, therefore, are in effect a suit against Carver County. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (1999). Regardless, the Kuhls' failure to establish a constitutionally protected liberty or property interest would likewise warrant dismissal of the section 1983 claims against Lein in his personal capacity.
2. Supplemental Jurisdiction
Having granted summary judgment on the Kuhls' federal claims against the Carver County Defendants, the Kuhls' state law claims for inverse condemnation, nuisance, trespass, negligence, and MERA violations remain. The record before the Court suggests that the Plaintiffs may have cognizable causes of action as to some of these remaining claims. See, e.g., Wendinger v. Forst Farms, Inc., 662-N.W.2d 546 (Minn.Ct.App. 2003).
Under 28 U.S.C. § 1367(a), a federal court may assert supplemental jurisdiction over state claims when a federal claim is properly before the court. However, when all federal claims have been dismissed, the court has discretion to dismiss the remaining state claims. See 28 U.S.C. § 1367(c)(3); Willman v. Heartland Hosp. E., 34 F.3d 605, 613 (8th Cir. 1994). Section 1367(c)(3) specifically states that the Court "may decline to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which it has original jurisdiction." The Court's discretion as to whether to exercise jurisdiction over these remaining claims should be informed by principles of judicial economy, convenience, fairness, and comity. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).
Here, although the Court regrets returning this action to state court given the time and resources the parties have expended on a federal action, the Court recognizes that significant interests in comity exist in this important area of state and county law. As such, the Court determines that it will not exercise its supplemental jurisdiction in this instance and that the remaining claims stated in the Complaint are dismissed without prejudice.
For the reasons stated, IT IS HEREBY ORDERED THAT:
1. Defendant Carver County and Michael Lein's Motion for Summary Judgment (Doc. No. 12) is GRANTED on Counts Six and Seven of the Complaint.
2. Counts One through Five and Count Eight of the Complaint (Doc. No. 1) are DISMISSED WITHOUT PREJUDICE.
3. Defendant Halquist Farms, Inc., Florence Halquist and William Halquist's Motion for Summary Judgment (Doc. No. 20) is DENIED AS MOOT.