Daniel Miller v. Montgomery County, Maryland , 458 F. App'x 304 ( 2011 )


Menu:
  •                              UNPUBLISHED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    Affirmed by unpublished opinion.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.
    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    Unpublished opinions are not binding precedent in this circuit.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
    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 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.
    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.
    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
    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                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
    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.
    4
    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
    satisfying the     second   requirement   for   obtaining   an
    exemption; 4 and
    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.
    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
    Mess or Brumbley. 5    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.
    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:
    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
    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         Notably,
    Dr. Mess did not join Miller’s lawsuit and is not a party in
    this case.
    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).
    8
    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
    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
    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
    little to no involvement” in the exemption application process. 8
    Thus, the only person in this case aggrieved by the Defendants’
    failure to approve the exemption was Dr. Mess.
    We observe that our holding is in accord with the Seventh
    Circuit’s decision in 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. at 1167
    .
    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
    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
    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. at 1169
    .
    In this case, Miller stands in a similar position to the
    landowner    in     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
    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
    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
    constitutional   claims   against   the   Defendants.   Therefore,   we
    affirm the district court’s judgment. 10
    AFFIRMED
    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).
    16