Southern Blasting Services, Inc. v. Wilkes County , 288 F.3d 584 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SOUTHERN BLASTING SERVICES, 
INCORPORATED; PIEDMONT DRILLING &
BLASTING, INCORPORATED,
Plaintiffs-Appellants,
v.  No. 01-2098
WILKES COUNTY, NORTH CAROLINA, a
body politic; KEVIN D. BOUNDS,
Wilkes County Fire Marshal,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CA-98-102-5-V)
Argued: February 27, 2002
Decided: April 29, 2002
Before WILKINSON, Chief Judge, and WILLIAMS
and GREGORY, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Williams and Judge Gregory joined.
COUNSEL
ARGUED: Douglas George Eisele, EISELE, ASHBURN, GREENE
& CHAPMAN, P.A., Statesville, North Carolina, for Appellants.
2 SOUTHERN BLASTING SERVICES v. WILKES COUNTY
Anthony Ray Triplett, VANNOY, COLVARD, TRIPLETT & VAN-
NOY, P.L.L.C., North Wilkesboro, North Carolina, for Appellees.
OPINION
WILKINSON, Chief Judge:
Plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling &
Blasting, Inc. seek to conduct explosives businesses and blasting
operations in Wilkes County, North Carolina using Hazardous Mate-
rials Transportation Act ("HMTA") Class 1 materials. Plaintiffs chal-
lenge two County ordinances, one which requires permitting of
explosives operations and one which regulates the storage and use of
explosives in the County. Plaintiffs claim that the ordinances are pre-
empted by federal law, are invalid under North Carolina law, and vio-
late their due process rights. The district court upheld the validity of
both ordinances, granting summary judgment for Wilkes County and
the County Fire Marshal. We affirm.
I.
During the summer of 1997, plaintiffs Southern Blasting Services,
Inc. and Piedmont Drilling & Blasting, Inc. set up operations in
Wilkes County, North Carolina. Southern Blasting purchases HMTA
Class 1 explosives and has them hauled to its magazine site in Wilkes
County, where they are stored until sold to industrial customers.
Southern Blasting has also expressed an interest in manufacturing
explosives at its site, but it has not yet done so. Piedmont Drilling
conducts blasting operations by drilling holes in rock formations,
loading the holes with explosives, and detonating the explosives to
loosen or remove the rock.
Shortly after plaintiffs established their explosives businesses in the
County, citizens began to voice objections to their operations. On
September 16, 1997, approximately 150 County residents attended the
meeting of the Wilkes County Board of Commissioners to express
their views. And the Board was presented with a petition containing
878 signatures opposing explosives operations in the County. Due to
SOUTHERN BLASTING SERVICES v. WILKES COUNTY 3
safety concerns and this public outcry, the Board voted unanimously
to have a committee draft ordinances that would establish both a per-
mit system and a comprehensive set of regulations for the operation
of explosives businesses.
On June 16, 1998, after several months of work by the appointed
committee, the Board unanimously adopted the Wilkes County
Explosive Materials Permitting Ordinance. The Permitting Ordinance
required applicants to obtain a permit from the County Fire Marshal
prior to possessing, storing, selling, transporting, or otherwise dealing
in explosive materials in Wilkes County. In addition, the Permitting
Ordinance provided that only businesses operating in the County on
the day the ordinance was adopted could apply for a permit. And the
ordinance gave ultimate decision-making authority to the Fire Mar-
shal. See Permitting Ordinance art. VI. However, the application pro-
cess included a public hearing and consultation with the Federal
Bureau of Alcohol, Tobacco & Firearms ("BATF"), the County Plan-
ning Department, the County Health Department, the County Build-
ing Inspections Department, and the Board. See Permitting Ordinance
art. VI(E). Further, the Permitting Ordinance specifically excluded
ammunition or firearms dealers licensed under federal or state law
from its requirements. See Permitting Ordinance art. V, VI(A).
On August 4, 1998, the Board also unanimously enacted the
Wilkes County Explosive Materials Ordinance (the "Regulatory Ordi-
nance"), which became effective on December 8, 1998 after the nec-
essary approval was obtained from the North Carolina Building Code
Council. This ordinance addressed the storage and use of explosives
in the County. Specifically, the Regulatory Ordinance restricted the
manufacture of explosives, required installation of security measures
at storage locations, set limits on the quantity of stored explosives,
and established penalties for violations. See Regulatory Ordinance art.
VI, VII. Like the Permitting Ordinance, the Regulatory Ordinance
excluded the possession, transportation, storage, and use of small
arms ammunition from its scope. See Regulatory Ordinance art. V.1
1
While the Building Code Council approval of the Regulatory Ordi-
nance was pending, the County Fire Marshal issued a directive limiting
the hours of operation for vehicles transporting explosive materials on
4 SOUTHERN BLASTING SERVICES v. WILKES COUNTY
Plaintiffs did not apply for a permit under the Permitting Ordi-
nance. Instead, plaintiffs initiated this action, alleging that the Permit-
ting and Regulatory Ordinances were preempted by federal law, were
invalid under North Carolina law, and violated their due process
rights. Plaintiffs sought injunctive relief to prevent the enforcement of
the ordinances. The district court concluded that both the Permitting
and Regulatory Ordinances were valid and granted summary judg-
ment to the County and the Fire Marshal. See S. Blasting Servs., Inc.
v. Wilkes County, 162 F. Supp. 2d 455 (W.D.N.C. 2001).
The district court held that plaintiffs’ preemption claim failed
because Congress did not intend to "occupy the field" of explosives
regulation and plaintiffs had failed to show a "direct and positive con-
flict" between the ordinances and any federal law. Id. at 462-63. The
court also concluded that the ordinances and their enabling statute,
N.C. Gen. Stat. § 153A-128, were valid under Article II, § 24 of the
North Carolina Constitution, which prevents the North Carolina Gen-
eral Assembly from promulgating certain acts of less than statewide
application. The court found that § 153A-128 granted authority to
regulate explosive substances uniformly to all North Carolina coun-
ties in conformance with Article II, § 24. Id. at 458-59.
The district court next rejected plaintiffs’ substantive due process
claim, finding that the ordinances were a valid exercise of the Coun-
ty’s police power and were rationally related to a legitimate govern-
mental purpose. Id. at 459-60. Finally, because plaintiffs had not even
applied for a permit, the district court concluded that they lacked
standing to assert a procedural due process challenge to the ordi-
nances. Id. at 460-61. Plaintiffs appeal.
two County roads. The directive was based on the Fire Marshal’s con-
cern for traffic on these roads during school-bus hours and the proximity
of plaintiffs’ businesses to an elementary school. The district court found
that the directive was preempted by the HMTA and was therefore void
and unenforceable. S. Blasting Servs., Inc. v. Wilkes County, 162 F.
Supp. 2d 455, 463-65 (W.D.N.C. 2001). The County has not appealed
the validity of the directive, so we need not address this issue.
SOUTHERN BLASTING SERVICES v. WILKES COUNTY 5
II.
A.
We begin by considering plaintiffs’ preemption claim. It is well-
established that the Supremacy Clause "invalidates state laws that
‘interfere with, or are contrary to,’ federal law." Hillsborough County
v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985) (quoting
Gibbons v. Ogden, 9 Wheat. 1, 211 (1824)). The Supreme Court has
repeatedly held that "state laws can be pre-empted by federal regula-
tions as well as by federal statutes" and that "for the purposes of the
Supremacy Clause, the constitutionality of local ordinances is ana-
lyzed in the same way as that of statewide laws." Hillsborough, 471
U.S. at 713 (citing cases).
Yet "[c]onsideration under the Supremacy Clause starts with the
basic assumption that Congress did not intend to displace state law."
Maryland v. Louisiana, 451 U.S. 725, 746 (1981). This presumption
is strongest when Congress legislates "in a field which the States have
traditionally occupied." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996) (internal quotation omitted). States have long possessed pri-
mary responsibility in our federal system for protecting the health and
safety of their citizens. Id. at 475, 485. Indeed, courts "start with the
assumption that the historic police powers of the States were not to
be superseded by the Federal Act unless that was the clear and mani-
fest purpose of Congress." Id. at 485 (quoting Rice v. Santa Fe Eleva-
tor Corp., 331 U.S. 218, 230 (1947)).
Nevertheless, there are several ways in which federal law may
supersede state or local law. First, Congress may expressly preempt
such laws. See, e.g., Hillsborough, 471 U.S. at 713. Second, in the
absence of express preemptive language, Congress’ intent to preempt
state law may be implied when "federal law so thoroughly occupies
a legislative field as to make reasonable the inference that Congress
left no room for the States to supplement it." Cipollone v. Liggett
Group, Inc., 505 U.S. 504, 516 (1992) (internal quotations omitted).
Finally, preemption will also be implied if state or local law "actually
conflicts with federal law." Such a conflict occurs "when compliance
with both federal and state regulations is a physical impossibility, or
when state law stands as an obstacle to the accomplishment and exe-
6 SOUTHERN BLASTING SERVICES v. WILKES COUNTY
cution of the full purposes and objectives of Congress." Hillsborough,
471 U.S. at 713 (internal quotations omitted).
B.
Plaintiffs claim that federal law regulating the manufacture, distri-
bution, and storage of explosive materials preempts the County’s Per-
mitting and Regulatory Ordinances. They maintain that the County
ordinances are superseded because of the exhaustive nature of federal
law in the explosives field, and because various provisions of the
ordinances are in direct and positive conflict with federal regulations.
The federal law governing explosive materials is codified at 18
U.S.C. §§ 841-848 (2000). Section 848, entitled "Effect on State law,"
provides:
No provision of this chapter shall be construed as indicating
an intent on the part of the Congress to occupy the field in
which such provision operates to the exclusion of the law of
any State on the same subject matter, unless there is a direct
and positive conflict between such provision and the law of
the State so that the two cannot be reconciled or consistently
stand together.
This statutory language makes clear that Congress did not intend
to occupy the field of licensing and regulating explosives operations.
In preemption analysis, "[t]he purpose of Congress is the ultimate
touchstone." Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn,
375 U.S. 96, 103 (1963). Here Congress has stated in the clearest of
terms that it was not preempting local efforts to regulate the explo-
sives industry, absent a direct and positive conflict with the federal
standards. In fact, as the district court recognized, "§ 848 is designed
to limit the preemptive scope" of the federal law and expressly "dis-
claims any intent to occupy the field." S. Blasting, 162 F. Supp. 2d
at 462.2
2
Plaintiffs’ contention that the County ordinances are invalid because
§ 848 only refers to "state" laws is without merit. As the district court
concluded, there is "no reason to believe Congress intended to treat local
and State regulations differently" under § 848. S. Blasting, 162 F. Supp.
2d at 462. And for preemption purposes, "the constitutionality of local
ordinances is analyzed in the same way as that of statewide laws." Hills-
borough, 471 U.S. at 713.
SOUTHERN BLASTING SERVICES v. WILKES COUNTY 7
Contrary to plaintiffs’ assertions, the comprehensiveness of federal
law in the explosives area does not override this clear expression of
congressional intent in § 848. The Supreme Court has noted that con-
temporary issues often require "intricate and complex responses from
the Congress, but without Congress necessarily intending its enact-
ment as the exclusive means of meeting the problem." Hillsborough,
471 U.S. at 717 (internal quotation omitted). This is especially true
in a case such as this one where Wilkes County acted pursuant to its
traditional police powers. Indeed, the Court "will seldom infer, solely
from the comprehensiveness of federal regulations, an intent to pre-
empt in its entirety a field related to health and safety." Id. at 718.
Congress’ desire not to preempt state and local efforts to regulate
explosive materials is unsurprising given the fact that conditions in
states and localities vary greatly. For example, local governments
may determine that the use or storage of explosives is particularly
dangerous due to population density or the proximity of explosives to
schools, nursing homes, or residential areas. Congress did not intend
to preempt democratic responses to such local conditions and con-
cerns. Instead, by allowing state and federal regulations to coexist,
Congress was fostering the values of federalism and recognizing the
"historic primacy of state regulation of matters of health and safety."
Medtronic, 518 U.S. at 485. Plaintiffs on the other hand, ask this court
to cut the democratic process short by declaring the County ordi-
nances void and unenforceable.
We are similarly unpersuaded by plaintiffs’ argument that the
County ordinances are invalid because they are in "direct and positive
conflict" with the federal law governing explosive materials. The "di-
rect and positive conflict" language in 18 U.S.C. § 848 simply restates
the principle that state law is superseded in cases of an actual conflict
with federal law such that "compliance with both federal and state
regulations is a physical impossibility." Hillsborough, 471 U.S. at 713(internal quotation omitted). Indeed, § 848 explains that in order for
a direct and positive conflict to exist, the state and federal laws must
be such that they "cannot be reconciled or consistently stand
together." 18 U.S.C. § 848.
To support their argument that a direct conflict is present in this
case, plaintiffs point to numerous provisions of the County Permitting
8 SOUTHERN BLASTING SERVICES v. WILKES COUNTY
and Regulatory Ordinances that impose more stringent requirements
than those contained in the federal regulations. For example, unlike
the federal regulations, the Permitting Ordinance requires a permit
applicant to submit a detailed history of all past and present opera-
tions, detailed written information on the applicant’s financial ability,
and an estimated schedule of all activities and operations the applicant
plans to conduct. See Permitting Ordinance art. VI(C).
However, a state or locality’s imposition of additional requirements
above a federal minimum is unlikely to create a direct and positive
conflict with federal law. Rather, a conflict is more likely to occur
when a state or locality provides that compliance with a federal stan-
dard is not mandated, or when compliance with federal law actually
results in a violation of local law. Here, even though the County ordi-
nances are strict, they do not create a situation where the ordinances
and the federal law cannot be reconciled or consistently stand
together.
The BATF, which is authorized to issue regulations to administer
the federal explosives laws, has stated that a federal license to import,
manufacture, or deal in explosive materials does not exempt a
licensee from state and local requirements. Indeed, a federal license
"confers no right or privilege to conduct business or operations,
including storage, contrary to State or other law." 27 C.F.R. § 55.62(2001). And a federal licensee "is not . . . immune from punishment
for conducting an explosive materials business or operations in viola-
tion of the provisions of any State or other law." Id. Further, BATF
has explained that "[w]here a situation arises that State or local
requirements are more stringent than the Federal, the more stringent
requirement must be followed." ATF — Explosives Law and Regula-
tions, ATF P 5400.7 at 57 (June 1990).
Moreover, BATF actually examined the County’s Permitting and
Regulatory Ordinances and stated in a letter that "while the ordi-
nances contain some provisions which are more stringent than those
contained in [18 U.S.C. §§ 841-848], it does not appear that compli-
ance with the Wilkes County Ordinances would result in a violation
of [§§ 841-848]." To the contrary, compliance with the more stringent
requirements of the County ordinances actually helps to assure com-
pliance with the federal requirements.
SOUTHERN BLASTING SERVICES v. WILKES COUNTY 9
We also reject plaintiffs’ argument that the ordinances cannot be
reconciled with federal law because the Regulatory Ordinance pre-
vents licensed companies from expanding, and because the Permitting
Ordinance prevents new companies from establishing explosives
operations in the County. See Regulatory Ordinance art. VI(C)(7);
Permitting Ordinance art. VI(J). Nothing in the federal explosives
statute or regulations prevents localities from regulating or even limit-
ing the number of explosives operations in their midst. The fact that
federal law regulates the operations of explosives companies does not
imply that Congress intended to stop a locality from going further to
reduce their risks. This is especially true in light of the strong anti-
preemption language in § 848 explaining that no provision of the fed-
eral explosives law "shall be construed as indicating an intent on the
part of the Congress to occupy the field in which such provision oper-
ates to the exclusion of the law of any State on the same subject mat-
ter."
III.
We next turn to plaintiffs’ claim that the County ordinances and
their enabling statute are invalid under the North Carolina Constitu-
tion. The Permitting and Regulatory Ordinances were enacted pursu-
ant to N.C. Gen. Stat. § 153A-128 (1999), which states that "[a]
county may by ordinance regulate, restrict, or prohibit the sale, pos-
session, storage, use or conveyance of any explosive, corrosive,
inflammable, or radioactive substance." Plaintiffs contend that both
§ 153A-128 and the County ordinances are invalid under Article II,
§ 24 of the North Carolina Constitution because they affect trade or
business but do not have statewide application.
We note at the outset that a federal court should be exceedingly
cautious about invalidating a state statute or a local ordinance under
a state constitution. Like most states, North Carolina "recognizes a
presumption in favor of the constitutionality of a [state] statue." Gard-
ner v. City of Reidsville, 153 S.E.2d 139, 150 (N.C. 1967). In order
for an act of the General Assembly to be declared unconstitutional
under the North Carolina Constitution, "it must be plainly and clearly
the case. If there is any reasonable doubt, it will be resolved in favor
of the lawful exercise of [the General Assembly’s] powers." E.g.,
10 SOUTHERN BLASTING SERVICES v. WILKES COUNTY
Town of Emerald Isle v. State, 360 S.E.2d 756, 761 (N.C. 1987)
(internal quotation omitted).
Article II, § 24 of the North Carolina Constitution prohibits the
General Assembly from promulgating local acts relating to various
specified topics. Article II, § 24 states:
(1) Prohibited subjects. The General Assembly shall not
enact any local, private, or special act or resolution:
(a) Relating to health, sanitation, and the abate-
ment of nuisances; . . .
(j) Regulating labor, trade, mining, or manufac-
turing; . . .
(4) General laws. The General Assembly may enact gen-
eral laws regulating the matters set out in this Section.
The North Carolina Supreme Court has defined a local act as a law
"applying to fewer than all counties, in which the affected counties do
not rationally differ from the excepted counties in relation to the pur-
pose of the act." Smith v. County of Mecklenburg, 187 S.E.2d 67, 73
(N.C. 1972).
We agree with the district court that "§ 153A-128 is a general law
that comports perfectly with Article II, § 24." S. Blasting, 162 F.
Supp. 2d at 459. Section 153A-128 does not apply to fewer than all
the counties in North Carolina. Instead, it uniformly confers authority
on all 100 North Carolina counties to regulate or prohibit explosive
materials. Therefore, § 153A-128 is valid under the North Carolina
Constitution.
Furthermore, the Wilkes County Permitting and Regulatory Ordi-
nances do not violate the North Carolina Constitution. As the district
court noted, "Article II, § 24 does not mention or address the regula-
tory authority of counties or other local governments." Id. And Article
II, § 24 in no way prohibits the General Assembly from empowering
counties to act in the specified fields. In fact, the primary purposes of
SOUTHERN BLASTING SERVICES v. WILKES COUNTY 11
Article II, § 24 were to "free the General Assembly" from the "petty
detail" of enacting local legislation, to enable the General Assembly
"to devote more time and attention to general legislation of statewide
interest and concern," and thereby to "strengthen local self-
government" by delegating local matters to local authorities. High
Point Surplus Co. v. Pleasants, 142 S.E.2d 697, 702 (N.C. 1965).3
Article II, § 24 was meant to promote just the type of interaction that
has occurred here between the General Assembly and a local govern-
ment, which is concededly more familiar with local conditions.
IV.
Finally, we address plaintiffs’ due process claim. Plaintiffs contend
that the County violated their due process rights by granting the
County Fire Marshal broad discretionary authority under the ordi-
nances, especially the Permitting Ordinance. It is not entirely clear,
however, whether plaintiffs are presenting this argument as a substan-
tive or procedural due process challenge. Therefore, like the district
court, we consider each in turn and conclude that plaintiffs’ claim
fails under both.
A.
In order to state a substantive due process claim, plaintiffs must
demonstrate: "(1) that they had property or a property interest; (2) that
the state deprived them of this property or property interest; and (3)
that the state’s action falls so far beyond the outer limits of legitimate
governmental action that no process could cure the deficiency." Sylvia
Dev. Corp. v. Calvert County, 48 F.3d 810, 827 (4th Cir. 1995). Sub-
stantive due process protections "run only to state action so arbitrary
and irrational, so unjustified by any circumstance or governmental
interest, as to be literally incapable of avoidance by any pre-
deprivation procedural protections or of adequate rectification by any
3
High Point discussed former Article II, § 29 of the North Carolina
Constitution. However, the North Carolina Supreme Court has stated that
decisions "which refer directly to former Article II, § 29, apply equally
to present Article II, § 24," which is identical in all material respects.
Smith, 187 S.E.2d at 73.
12 SOUTHERN BLASTING SERVICES v. WILKES COUNTY
post deprivation state remedies." Rucker v. Harford County, 946 F.2d
278, 281 (4th Cir. 1991).
Even if plaintiffs could prove that they had a property interest and
that the County somehow deprived them of that interest by making it
more difficult to operate an explosives business, plaintiffs’ substan-
tive due process claim fails under the third prong of the Sylvia test.
The County’s actions obviously did not fall beyond the outer limits
of legitimate governmental action. Instead, the County’s actions were
rationally related to a legitimate governmental purpose. Therefore,
plaintiffs "cannot demonstrate that the County’s actions were arbi-
trary or irrational as required by Sylvia and Rucker." Tri-County Pav-
ing, Inc. v. Ashe County, 281 F.3d 430, 440 (4th Cir. 2002).
First, we need look no further than the text of the Permitting and
Regulatory Ordinances to discover the County’s legitimate govern-
mental interest. The County’s purpose in enacting the ordinances was
"protecting the public and safeguarding the health and welfare of the
citizens of the County." Permitting Ordinance art. III; Regulatory
Ordinance art. III. The Board found "that the location, possession,
storage, use, handling, manufacture, sale, and transportation of certain
explosive materials, together with the danger of fire, injury, and theft
in connection therewith, constitute[d] a potential hazard to the health,
safety, and welfare of the citizens of the County unless carefully regu-
lated, controlled, and monitored." Permitting Ordinance art. III; Regu-
latory Ordinance art. III. As the district court noted, "[p]laintiffs’
suggestion that their explosives operations pose no threat to the public
is absurd" — plaintiffs deal with HMTA Class 1 explosive materials.
S. Blasting, 162 F. Supp. 2d at 460. We agree with that court that "it
would be a truly strange decision for a court to find that blasting oper-
ations and the storage of inherently hazardous materials do not
present matters of legitimate concern." Id. Protecting the "health,
safety, and well-being of the County’s citizens are basic governmental
functions. And this court will not substitute its policy judgments as
to the exercise of the police power for those of a democratically
elected local government." Tri-County, 281 F.3d at 439.
Second, the Permitting and Regulatory Ordinances are rationally
related to the aforementioned goals of minimizing the risks of theft,
fire, and explosion associated with blasting operations. The ordi-
SOUTHERN BLASTING SERVICES v. WILKES COUNTY 13
nances "tighten security at explosives storage facilities, limit the pre-
mixing and storage of volatile materials, and require information on
the size, location, and duration of any blasting operations." S. Blast-
ing, 162 F. Supp. 2d at 460. Further, the County could reasonably
have believed that the Fire Marshal, given his experience with the
hazards of fires and explosions, was in the best position to decide
whether to grant a permit under the Permitting Ordinance, and was in
the best position to enforce the Regulatory Ordinance. Therefore, the
County’s grant of authority to the Fire Marshal to review permit
applications and implement the ordinances was also rationally related
to the County’s legitimate interest in protecting the health and safety
of its residents.
B.
Plaintiffs’ complaint regarding the Fire Marshal’s discretionary
powers under the ordinances also fails as a procedural due process
claim. First, plaintiffs lack standing to bring such a challenge. In order
to have standing, plaintiffs must show that: (1) they have suffered an
injury in fact; (2) that the injury is fairly traceable to the challenged
action of the defendant; and (3) that the injury is likely to be redressed
by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). And in order to sat-
isfy the injury-in-fact requirement, plaintiffs must demonstrate that
they "suffer[ed] an invasion of a legally protected interest which is
concrete and particularized, as well as actual or imminent." Friends
of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149,
154 (4th Cir. 2000) (en banc) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992)). Here, plaintiffs have never even applied
for a permit, much less been denied one. Therefore, they cannot dem-
onstrate an actual injury from the County granting the Fire Marshal
decision-making authority under the Permitting Ordinance. See Ori-
ental Health Spa v. City of Fort Wayne, 864 F.2d 486, 488-89 (7th
Cir. 1988) (finding that a plaintiff lacked standing to bring a proce-
dural due process challenge to a local licensing scheme where plain-
tiff had never been threatened with revocation or suspension of its
current license).
Second, even if plaintiffs had standing, their procedural due pro-
cess claim fails because the Permitting Ordinance does not grant
14 SOUTHERN BLASTING SERVICES v. WILKES COUNTY
unfettered discretion to the Fire Marshal. Instead, the ordinance pro-
vides ample process by establishing a set of procedures to ensure that
permits cannot be denied or revoked randomly. For example, a permit
applicant must submit a large volume of information, which is
designed to assist the Fire Marshal in determining whether or not the
proposed operation "will be conducted in a safe and responsible man-
ner" in accordance with federal and state law and County ordinances.
See Permitting Ordinance art. VI(C). Further, before a permit can be
granted or denied, the Fire Marshal must consult with the BATF, the
County Planning Department, the County Health Department, the
County Building Inspections Department, and the County Board of
Commissioners. See Permitting Ordinance art. VI(B), (E). In addition,
there must be time set aside at a regularly scheduled Board meeting
"for the purpose of hearing public comment, if any, on the operations
and activities which the applicant proposes to conduct." Permitting
Ordinance art. VI(E). Moreover, if the Fire Marshal ultimately deter-
mines that a permit must be denied, he must provide the applicant
with a written explanation of the reasons for his decision. Id. And a
permit applicant "may appeal [a] denial or revocation to the [North
Carolina] District or Superior Courts" where an arbitrary or capricious
decision by the Fire Marshal could be reversed. Permitting Ordinance
art. VI(K). This procedure is quite sufficient to satisfy the require-
ments of procedural due process.
V.
In sum, we find no impediment in federal or state law to Wilkes
County’s regulation of explosives operations. For the foregoing rea-
sons, we affirm the judgment of the district court.
AFFIRMED