Sierra Club v. KDHE ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,023
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
SIERRA CLUB,
Petitioner/Appellee,
v.
JANET STANEK, in her Official Capacity as Secretary of the Kansas Department of Health
and Environment, and the DEPARTMENT OF HEALTH AND ENVIRONMENT, an Agency of
the State of Kansas,
Respondents/Appellees,
and
HUSKY HOGS, L.L.C., PRAIRIE DOG PORK, L.L.C., ROLLING HILLS PORK, L.L.C., and
STILLWATER SWINE, L.L.C.,
Intervenors/Appellants.
MEMORANDUM OPINION
Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed April 1,
2022. Reversed and remanded with directions.
David M. Traster, Gary L. Ayers, and Clayton J. Kaiser, of Foulston Siefkin LLP, of Wichita, for
intervenors/appellants.
Timothy J. Laughlin, of Long & Robinson, LLC, of Kansas City, Missouri, and Robert V. Eye, of
Robert V. Eye Law Office, LLC, of Lawrence, for petitioner/appellee Sierra Club.
M.J. Willoughby, assistant attorney general, Arthur S. Chalmers, assistant attorney general, and
Derek Schmidt, attorney general, for respondents/appellees Kansas Department of Health and
Environment and Janet Stanek.
Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.
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PER CURIAM: The Kansas Department of Health and Environment (KDHE)
granted four swine facility permits, respectively, to Husky Hogs, L.L.C., Prairie Dog
Pork, L.L.C., Rolling Hills Pork, L.L.C., and Stillwater Swine, L.L.C. (collectively
Permittees) over Sierra Club's objection. Sierra Club petitioned the district court for
review under the Kansas Judicial Review Act (KJRA), claiming KDHE misinterpreted
the relevant statutes and regulations. The district court agreed and reversed KDHE's
decision.
Permittees appealed to this court and pursued modified permits from KDHE to
continue operations. Sierra Club again objected to these applications. KDHE ultimately
issued the modified permits, and Sierra Club filed a second KJRA action in February
2022 challenging the modified permits.
The parties to this appeal—Permittees, Sierra Club, and KDHE—raise several
arguments pertaining to jurisdiction over remand orders, mootness, standing, and
statutory interpretation. We need not reach all these issues because we find Sierra Club
lacked standing to petition for judicial review. We reverse the district court's decision on
standing and remand with directions to dismiss Sierra Club's KJRA petition and reinstate
the original permits.
Husky Hogs, L.L.C. and Prairie Dog Pork, L.L.C.
Husky Hogs, L.L.C., a swine facility in Phillips County, Kansas, suffered a
devastating fire on June 6, 2017. Terry Nelson, a Husky Hogs member, and his daughter-
in-law Julia Nelson met with Tara Mahin at KDHE to discuss how they could rebuild and
expand the Husky Hogs' operation.
Important to this expansion was K.S.A. 65-1,180, which establishes separation
distances from water for swine facilities:
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"(a) The department shall not approve a permit for construction of a new swine
facility or expansion of an existing swine facility unless the swine waste management
system for the facility:
....
(3) . . . is located: (A) Not less than 500 feet from any surface water if the
facility has an animal unit capacity of 3,725 or more; (B) not less than 250 feet from any
surface water if the facility has an animal unit capacity of 1,000 to 3,724; or (C) not less
than 100 feet from any surface water if the facility has an animal unit capacity of under
1,000."
Since Husky Hogs was located 250 feet from Prairie Dog Creek it was limited to 3,724
animal units (swine weighing more than 55 pounds are counted as 0.4 animal units while
swine weighing 55 pounds or less count as 0.1 animal units). Prairie Dog Creek is a
major tributary of the Upper Republican River and flows into the Harlan County
Reservoir just over the Nebraska state line.
To accomplish the goal of expanding Husky Hogs without violating K.S.A. 65-
1,180, Terry Nelson proposed to KDHE that he sell some of Husky Hogs' property to a
separate entity, owed by Clarke and Julia Nelson, and permit each entity separately.
Mahin responded by e-mail on June 20, 2017, and stated:
"As we discussed on the phone just a little while ago. The proposal below that
was submitted on June 13th meets statutory and regulatory requirements. The real
property (land and buildings) must be owned by a separate entity ('Clarke and Julia
Nelson LLC') than Husky Hogs LLC. The two facilities must be operated as two separate
operations. The proposed facility's waste management system, land application areas,
waste conveyance mechanisms, and feed storage areas are required to be separate from
Husky Hogs LLC. All current piping/conveyance mechanisms from those three buildings
that currently connect to Husky Hogs' retention structures must be at a minimum
permanently capped. It is recommended, if feasible, that the current piping from those
three buildings to the Husky Hogs' retention structures be removed. Also, KDHE
recommends that the two facilities maintain separate utilities (electric, water, etc.).
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"The next step would be to submit a permit application; proof of separate
ownership of the real property must be submitted with the permit application."
After this, a new limited liability company called Prairie Dog Pork, L.L.C. was
formed. Husky Hogs and Nelson Farms executed a quitclaim deed granting Prairie Dog
Pork a portion of Husky Hogs' property.
Both Husky Hogs and Prairie Dog Pork applied for individual permits from
KDHE. Although the applications listed Husky Hogs and Prairie Dog Pork as the
property owners, they listed Julia Nelson as the applicant. Husky Hogs proposed having
3,724.8 animal units while Prairie Dog Pork proposed having 2,429.2 animal units. Both
Husky Hogs' and Prairie Dog Pork's applications stated they were 250 feet from Prairie
Dog Creek. Husky Hogs would own the swine housed at Prairie Dog Pork and it would
provide all feed, veterinary care, and labor.
Craig Volland wrote to KDHE on behalf of Sierra Club on September 12, 2017, to
protest the tentative approval of the Husky Hogs and Prairie Dog Pork applications.
Sierra Club is a national nonprofit environmental organization. In its letter, Sierra Club
noted Husky Hogs operated the existing site which was permitted for 3,702.4 animal
units of swine. By splitting the existing operation into two separate operations, the
amount of animal units in the area would increase to 6,153.2. Sierra Club characterized
the plan as a maneuver to circumvent the Legislature's requirement that facilities with
3,725 or more animal units be 500 feet away from public surface water. Sierra Club
asserted that separate ownership of the facilities would do little to ameliorate the negative
environmental consequences of "inserting 67% more animals into the same space."
The applications were each approved and opened for public comment. In
December 2017, Sierra Club submitted a public comment which incorporated its
September 2017 letter. It stated that it was objecting "on behalf of the Sierra Club" and
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"members of the Sierra Club who live downstream of the subject site that would be
affected by KDHE's actions, including Carl Wolfe who has a home near Republican City
on Harlan County Lake in Nebraska and Wade Beisner who lives in Orleans and
frequently recreates at the Lake." Sierra Club also submitted its comment "on behalf [of]
citizens living in Phillips [County] and Norton County, [Kansas] who would be affected
by new swine feeding operations resulting from the proposed expansion of the Husky
Hogs swine breeding operation."
Sierra Club claimed the proposed sites were only 250 feet from Prairie Dog Creek
and any runoff from waste application fields, manure piles, or seepage from wastewater
could easily contaminate the water. This would then flow into the Upper Republican
River and later the Harlan County Reservoir. Sierra Club cited testing conducted on
Prairie Dog Creek 8.5 miles away from the proposed sites (as measured in a straight line,
not the line formed by the creek) that showed the creek was "impaired with respect to
both dissolved oxygen and total phosphorus for aquatic life." Sierra Club also cited
groundwater monitoring performed along Prairie Dog Creek near Husky Hogs which
showed increased nitrate levels. But Sierra Club admitted that "[t]he pronounced meander
of the creek complicates determination of the direction of subsurface flow, and there are
so many potential sources, including waste application fields and waste impoundments,
that it is difficult to attribute elevated nitrate levels to any one of them." And Sierra Club
noted that as recently as June 2016 a health alert was issued to recreational users of
Harlan County Lake because of toxic blue-green algae, and "[b]lue-green algae is caused
by excess nutrients such as the phosphorus and nitrogen contained in livestock
wastewater." Sierra Club asserted that it was only reasonable to conclude that increasing
animal numbers in the area, even if those animals are confined in separate operations,
will increase pollution in the water.
Finally, Sierra Club argued KDHE misinterpreted K.A.R. 28-18a-4(d), titled
"Filing of applications and payment of fees," in authorizing the proposed operations. At
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the time, this regulation stated: "Swine facilities on separate pieces of land without a
contiguous ownership boundary shall be classified as separate operations, and each
applicant shall be assessed a fee under K.A.R. 28-16-56d." K.A.R. 28-18a-4(d). Sierra
Club questioned whether the two proposed facilities were truly separate operations and
said it was "obvious that Prairie Dog Pork, LLC was created expressly for the purpose of
expanding production of piglets at the same site while evading the requirement set in
place by the legislature for a greater distance from Prairie Dog Creek and from the
neighbors for operations exceeding 3724 animal units." By interpreting K.A.R. 28-18a-
4(d) to permit the two facilities, Sierra Club argued, KDHE would act inconsistently with
the legislative intent underlying the statutes specifying setback distances from surface
water and habitable structures.
KDHE responded to the public comments by noting:
"Kansas Administrative Regulations (K.A.R.) 28-18a-4(d) classifies swine
facilities as separate operations if the facilities are located on separate pieces of land
without a contiguous property ownership. The real property these three proposed
facilities are to be located on do not share contiguous property ownership. The property
the Husky Hogs, LLC facility is located on is owned by Husky Hogs, LLC; the property
the Prairie Dog Pork, LLC facility is located on is owned by Prairie Dog Pork, LLC; and
the property the Hilltop Nursery facility is located on is owned by AEC Swine, LLC. A
quitclaim deed was submitted to KDHE that verifies there is not contiguous property
ownership. Any questions regarding property appraisals need to be directed to the
Phillips County Appraiser's Office.
"Under Kansas law, Limited Liability Companies do not have owners; they are
composed of members and operated by managers. KDHE has not been directed by the
Legislature to investigate members or managers of applicants, nor is there a legal
requirement that an 'operating agreement' as defined in Kansas Statutes Annotated
(K.S.A.) 17-7663(k) be submitted to KDHE."
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Because Husky Hogs and Prairie Dog Pork are separate facilities, KDHE said they only
had to be set back 250 feet from Prairie Dog Creek.
Next, KDHE addressed Sierra Club's concern that degradation of water quality
would adversely impact the public, downstream property owners, and recreational users
of Harlan County Lake. KDHE pointed out the existence of several requirements aimed
at protecting water quality, all of which the proposed facilities satisfied.
As for Sierra Club's concern about blue-green algae in Harlan County Lake,
KDHE said there were "many potential contributors of nitrogen and phosphorus located
in a watershed." KDHE added that statutes and regulations were developed to minimize
water pollution, and, once again, Permittees met them all. KDHE similarly responded to
Sierra Club's concern with increased nitrate levels in the groundwater along Prairie Dog
Creek.
In response to Sierra Club's concern about increasing animal numbers in the same
area of land, KDHE said there was "no statutory or regulatory limit on the number of
livestock that can be confined or located in a particular watershed." And the "KDHE does
not have the authority to deny a water pollution control permit for a confined feeding
facility when all applicable statutory and regulatory requirements are met."
KDHE issued permits to Husky Hogs and Prairie Dog Pork in December 2017.
Rolling Hills Pork, L.L.C. and Stillwater Swine, L.L.C.
Meanwhile, Clarke and Julia Nelson formed a second limited liability company,
C & J Swine L.L.C., doing business as Rolling Hills Pork, L.L.C. Terry Nelson, acting
through Nelson Farms, formed Stillwater Swine, L.L.C. In December 2017, Nelson
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Farms deeded adjoining tracts in Norton County to Rolling Hills Pork and Stillwater
Swine.
Rolling Hills Pork and Stillwater Swine each filed applications with KDHE in
October 2017 for permits to operate swine facilities with capacities below 3,725 animal
units. Husky Hogs would own the swine at each facility.
Volland submitted a public comment on behalf of Sierra Club on the Rolling Hills
Pork and Stillwater Swine applications as well. The comment incorporated Sierra Club's
September 2017 letter and December 2017 public comment on the Husky Hogs and
Prairie Dog Pork permits. The comment stated that Sierra Club was
"expanding [its] objection to the issuance of these permits on behalf of the Sierra Club
members who live downstream of the subject site that would be affected by KDHE's
actions, including Carl Wolfe who has a home near Republican City on Harlan County
Lake in Nebraska and Wade Beisner who lives in Orleans and frequently recreates at the
Lake, and other citizens living in Norton County, [Kansas] who may be affected by odor
and reduced water quality."
As with its earlier objections, Sierra Club argued the two facilities should not be
considered separate. Because Sierra Club asserted the two operations were actually one
operation, it argued the permits should be denied for not meeting the statutory setbacks to
the nearest habitable structure. Again, Sierra Club contended KDHE misinterpreted
K.A.R. 28-18a-4(d) because the applicants admitted there was "'0 feet'" between their
properties, and under the regulation swine facilities are separate only if they are "without
a contiguous ownership boundary." If the two facilities were treated as one, then their
permits would violate the setback requirements for water and habitable structures.
Sierra Club also alleged Stillwater Swine and Rolling Hills Pork submitted
inaccurate and insufficient nutrient management plans that failed to address how
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wastewater would be applied within the permitted areas. Sierra Club noted that one
application pivot was "only about two hundred feet [from] the residence of Mr. Rodney
Ross."
Rodney and Tonda Ross submitted a public comment in December 2017
expanding on their concerns about wastewater application. They were worried that on
breezy days, the facilities would spray swine waste that could drift onto their property.
Their comment did not state that they were Sierra Club members.
KDHE responded to the public comments it received on the Stillwater Swine and
Rolling Hills Pork applications. In response to the assertion that the two facilities should
be treated as one, KDHE said:
"Kansas Administrative Regulations (K.A.R.) 28-18a-4(d) classifies swine
facilities as separate operations if the facilities are located on separate pieces of land
without a contiguous property ownership. The real property the two proposed facilities
are to be located on do not share contiguous property ownership. The property Stillwater
Swine is located on is owned by Nelson Farms, Inc. and the applicant is N. Terry Nelson
and the property Rolling Hills Pork is located on is owned by C & J Swine, LLC and the
applicants are Clarke and Julia Nelson."
KDHE also approved Stillwater Swine's and Rolling Hills Pork's nutrient management
plans. But it added a condition to the permit requiring them to develop a plan to avoid
swine waste spray drift near the Rosses' property.
KDHE issued a permit to Rolling Hills Pork in April 2018 and Stillwater Swine in
June 2018.
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Administrative Appeals
Sierra Club petitioned KDHE's Director of Environment to reconsider the four
permits. When that failed, Sierra Club appealed to the KDHE Secretary, who also denied
Sierra Club's appeals.
Kansas Judicial Review Act Case in District Court
Sierra Club next filed two petitions for review under the KJRA—one challenging
the permits issued to Husky Hogs and Prairie Dog Pork; the other, Rolling Hills Pork and
Stillwater Swine. Relevant to this appeal, Sierra Club's primary contentions were:
(1) Sierra Club had standing to bring the KJRA actions and (2) the permits violated the
setback requirements in K.S.A. 65-1,180(a)(3) because they should be treated as the same
entity under K.A.R. 28-18a-4(d). Sierra Club asked the district court to revoke the
permits.
Attached to Sierra Club's opening brief in support of its petition for judicial review
were declarations from Carl Wolfe and Tonda and Rodney Ross. Sierra Club relied on
these declarations in arguing that it had standing to bring the KJRA actions.
In his declaration, Wolfe stated he was a Sierra Club member and during KDHE's
consideration of the permits at issue Sierra Club made comments and administrative
appeals on his behalf in opposition to the permits. Wolfe also said he had a residence on
the shore of Harlan County Reservoir and had lived there since 2002. Wolfe stated that he
used the lake for birdwatching, fishing, boating, and water skiing. He was concerned
because he thought the water quality at Harlan County Reservoir had diminished, which
included blue-green algae outbreaks and warnings about e-coli contamination.
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Wolfe, who identified himself as a wildlife biologist and educator, said that
"[b]lue-green algae outbreaks are caused by, at least in part, increased nutrient runoff
from [confined animal feeding operations] and leakage from waste impoundments in the
alluvial aquifer." He explained that "[t]he nutrient runoff supplies essential components
that increase blue-green algae growth." Similarly, he said that "[e]-coli contamination at
Harlan County Reservoir is caused by, at least in part, animal wastes from [confined
animal feeding operations] that are discharged into" various bodies of water that drain
into the lake. Wolfe concluded that he was concerned the large concentration of confined
animal feeding operations would increase the contaminants in the Republican River and
Harlan County Reservoir.
The Rosses submitted a joint declaration. They also claimed to be Sierra Club
members, although they did not say when they joined. The Rosses reiterated the concerns
raised in their public comment on the Rolling Hills Pork and Stillwater Swine permit
applications about spray from swine waste drifting onto their property. After KDHE
issued the permits, the Rosses petitioned KDHE's Director of Environment for
reconsideration and then the KDHE Secretary. Both petitions were denied.
The Rosses also said in their declaration that they owned a vacation home about a
mile and a half from Harlan County Reservoir. They were concerned contamination from
Rolling Hills Pork and Stillwater Swine would "cause further degradation of the lake's
water quality." It was commonly understood, they said, that blue-green algae outbreaks
"are related to, among other things, contamination from [confined animal feeding
operations] that ends up in the lake." In their visits to the Harlan County Reservoir since
1991 for boating trips, the Rosses said the number of blue-green algae outbreaks had
increased over time. They believed this increase coincided with the number of confined
animal feeding operations in the areas that provide water to the lake.
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Permittees intervened and the district court consolidated the cases for judicial
review.
Permittees argued Sierra Club did not have standing because the evidence did not
show that its members adequately participated in the agency proceedings or that its
members suffered a cognizable injury. Permittees also asserted that Kansas law imposed
no restrictions on locating two swine facilities next to one another if they were separately
owned. KDHE asserted that the district court should only consider the facts within the
agency record, not the declarations and other exhibits attached to Sierra Club's brief in
support of its petition for review. Like Permittees, KDHE also argued Sierra Club lacked
standing to bring the KJRA actions. Finally, KDHE asserted that it properly found
K.A.R. 28-18a-4(d) to be the applicable regulation and interpreted it correctly.
The district court reversed KDHE's decision to grant the four permits in December
2019. The district court framed the issue as "whether KDHE properly interpreted and
applied K.A.R. 28-18a-4(d) in issuing the four separate confined feeding facility permits
for swine in Phillips and Norton Counties." As stated above, this regulation provides:
"Swine facilities on separate pieces of land without a contiguous ownership boundary
shall be classified as separate operations, and each applicant shall be assessed a fee under
K.A.R. 28-16-56d." K.A.R. 28-18a-4(d).
In its factual findings, the district court found Husky Hogs and Prairie Dog Pork
"share contiguous ownership boundaries." Similarly, because Rolling Hills Pork and
Stillwater Swine are located next to each other, the district court found that they also
"share contiguous ownership boundaries." Then, looking at K.A.R. 28-18a-4(d), the
district court held the facilities that shared contiguous ownership boundaries should not
be considered separate. The district court believed KDHE misinterpreted the statute by
focusing on whether there was contiguous property ownership, not contiguous ownership
boundaries as stated in the regulation.
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Based on its finding that Husky Hogs and Prairie Dog Pork were not separate
facilities, the district court held that permitting the facilities violated K.S.A. 65-
1,180(a)(3), which prohibits swine facilities with animal unit capacities of 3,725 or more
of being located less than 500 feet from any surface water. The district court applied the
same analysis to Rolling Hills Pork and Stillwater Swine, finding their permits also
violated K.S.A. 65-1,180(a)(3).
The district court also ruled that Sierra Club had standing to petition for review.
Sierra Club had to show that it had both statutory and common-law standing. A person
has statutory standing under the KJRA if the person "was a party to the agency
proceedings that led to the agency action." K.S.A. 77-611(b). A person has common-law
standing if the person can "show a cognizable injury and establish a causal connection
between the injury and the challenged conduct." Sierra Club v. Moser, 298 Kan. 22, 33,
310 P.3d 360 (2013). Additionally, for an association to have standing, it must show,
among other things, that its members have standing to sue individually.
The district court applied the associational standing test in determining whether
Sierra Club had both statutory and common-law standing. As will be discussed later, this
was error because the associational standing test is relevant only when looking at
common-law standing, not statutory standing.
First, the district court held that Wolfe provided Sierra Club with statutory
standing to challenge the Husky Hogs and Prairie Dog Pork permits. Even though Wolfe
did not submit a public comment in the agency proceeding, the district court determined
Sierra Club's comment was enough to find that Wolfe was a party to the agency
proceedings. This was because Sierra Club submitted the public comment on behalf of its
members who lived downstream of the subject sites, "including Carl Wolfe who has a
home near Republican City on Harlan County Lake in Nebraska."
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Next, the district court held that Wolfe provided Sierra Club with common-law
standing. The court determined that Wolfe suffered a cognizable injury—diminished
recreational enjoyment of the Harlan County Reservoir. The court also found Wolfe's
declaration sufficient to establish causation, explaining:
"In Carl Wolfe's declaration, he states that he is a wildlife biologist and claims that there
is a relationship between outbreaks of blue-green algae and contamination caused by
confined animal feeding operations. Carl Wolfe alleges that the animal wastes from the
confined animal feeding operations will be discharged into water bodies that drain into
the Harlan County Reservoir. This is sufficient evidence to show a causal connection
between the imminent injuries and the confined swine feeding operations."
The district court held that Sierra Club had standing to challenge the Rolling Hills
Pork and Stillwater Swine permits based on the Rosses' individual standing. The court
identified the contested issue as whether the Rosses satisfied the common-law standing
requirements—cognizable injury and causation. Like with Wolfe, the district court held
the Rosses were injured by diminished recreational enjoyment of the Harlan County
Reservoir caused by confined animal feeding operations. The Rosses also submitted
evidence of additional injury caused by the threat of swine waste drifting onto their
property.
With these findings, the district court reversed KDHE's action related to the
issuance of the four permits. The court "remand[ed] this matter to KDHE for further
proceedings on these applications for permits consistent with this ruling."
The district court denied a motion for stay and request to alter or amend.
Permittees appealed.
There have been several developments since Permittees appealed. In May 2020,
KDHE issued notices of its intent to revoke the four permits. Permittees requested an
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administrative hearing on the notices. In January 2021, the Office of Administrative
Hearings (OAH) stayed the proceedings pending the outcome of this appeal.
Sierra Club moved this court for involuntary dismissal of this appeal in November
2020. Sierra Club argued that this court lacked jurisdiction over the appeal because
Permittees had not fully exhausted their administrative appeals. Essentially, Sierra Club
argued that because KDHE had only issued notices to revoke and had not yet conducted
an evidentiary hearing to determine whether the permits should be officially revoked,
Permittees had not exhausted their administrative remedies. We denied the motion in
December 2020.
At some point, Permittees submitted four new applications to modify their
permits. A notice of the applications was published in the Kansas Register in April 2021.
Each notice stated that the only modification to the permit was a change of property
boundary. Sierra Club filed public comments objecting to issuance of the permits. KDHE
issued the four modified permits to Permittees in June 2021. Sierra Club petitioned for
reconsideration in August 2021, but its petitions were denied in November 2021. Sierra
Club appealed the denials of its petitions for reconsideration to the KDHE Secretary.
According to a brief filed by Sierra Club in January 2022, Permittees' administrative
appeals from the notices of intent to revoke were still stayed.
In July 2021, KDHE amended K.A.R. 28-18a-4(d), the regulation the district court
relied on in finding the two adjacent facilities should be treated as one. The amended
regulation no longer contains the disputed language about "contiguous ownership
boundaries." It now states adjoining swine facilities should be classified only as one
swine facility if they have a common waste management system. K.A.R. 2021 Supp. 28-
18a-4(d). Permittees each have a separate waste management system.
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KDHE filed a notice with this court in August 2021. KDHE argued the issuance of
the modified permits and the amendment to K.A.R. 28-18a-4 rendered the issues
appealed either moot or not ripe for review. Sierra Club disagreed, asserting that the
appeal was not moot because the material facts remain unchanged. Sierra Club argued
that "[i]nserting buffers between facilities does not change the fact that the same quantity
of swine is still located in the same particular space and the same proximity to surface
water." Sierra Club asked this court for a chance to brief the issues raised in KDHE's
notice and Sierra Club's response, which we allowed.
Before summarizing the parties' supplemental briefing, it is important to
understand what arguments the parties raised in their briefs. Both Permittees and KDHE
argued that Sierra Club lacked standing. Sierra Club, of course, disagreed.
Permittees also raised several alternative statutory interpretation arguments. First,
Permittees argued that both the district court and KDHE erred in applying K.A.R. 28-
18a-4(d) because "[t]his regulation is about fees; it does not implement K.S.A. 65-1,180
and should not govern." Second, Permittees argued that KDHE reached the right result
even though it applied the wrong regulation. Permittees suggested that KDHE should
have applied K.A.R. 28-18a-11, which adopts by reference a federal regulation that
defines "concentrated animal feeding operation" in a manner favorable to Permittees.
Finally, Permittees argued that even if K.A.R. 28-18a-4(d) did apply, the district court
misinterpreted it.
Sierra Club argued the district court correctly interpreted K.S.A. 65-1,180(a)(3)
and K.A.R. 28-18a-4(d). Sierra Club acknowledged that the district court based its ruling
on its interpretation of K.A.R. 28-18a-4(d). Sierra Club also suggested that the district
court held that K.S.A. 65-1,180(a)(3) provided a separate and independent basis for
invalidating the permits. According to Sierra Club, the district court found that K.S.A.
65-1,180(a)(3) is not solely focused on the separateness of waste management systems.
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The setback requirements imposed by the statute also turn on "the concentration of
animals located on a particular space or area and the proximity of that area to surface
water" without reference to who owns the animals. Permittees replied and argued that
Sierra Club mischaracterized K.S.A. 65-1,180 and the district court's decision. Permittees
asserted that the district court "acknowledged that Kansas law does not impose separation
distances between swine facilities."
KDHE argued this court did not have jurisdiction over the appeal because remand
orders are not appealable in the administrative context. KDHE also asserted that Sierra
Club failed to exhaust its administrative remedies given the ongoing OAH proceedings
following the district court's remand. Finally, KDHE argued the case was not ripe for
adjudication because Permittees submitted applications to modify their permits and
because an amendment to K.A.R. 28-18a-4(d) was pending before KDHE.
Before the court are the parties' supplemental briefs. Sierra Club, apparently no
longer seeking involuntary dismissal of this appeal, argues against dismissal. Permittees
also argue against dismissal, though on different grounds. KDHE is the sole party
favoring dismissal on mootness grounds.
In its supplemental brief, KDHE asserts that this court lacks jurisdiction to
consider the appeal and the issues are moot. Permittees are currently authorized to
operate under the modified permits and the old permits are no longer effective. As for
jurisdiction, KDHE notes that standing is a component of jurisdiction. As stated above,
Sierra Club must show that one or more of its members suffered an injury caused by the
challenged conduct. Because the modified permits and not the permits Sierra Club
challenges in this appeal caused Sierra Club's alleged injury, KDHE claims Sierra Club
lacks standing to appeal from a decision on the original permits. Alternatively, KDHE
asserts that the issues are moot since it issued the modified permits under a new set of
facts. And K.A.R. 28-18a-4(d), "which was the linchpin of the district court's orders to
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remand for reconsideration of the issuance of the former permits, was materially altered
by a 2021 amendment."
Sierra Club argues the case is not moot because the permit modifications do not
change the material facts in the case. The amended regulation was not in effect when the
modified permits issued. Even if the case is moot, Sierra Club argues that an exception to
the mootness doctrine applies—the interpretation of the setback requirements in K.S.A.
65-1,180 is capable of repetition and raises concerns of public importance. Sierra Club
contends the ultimate issue in this appeal is whether permitting the two pairs of swine
facilities violates K.S.A. 65-1,180. Sierra Club states that "Permittees' and KDHE's
attempt to moot this case by inserting and approving buffers between two adjacent
facilities is flawed and proves that similar schemes will be used time-and-time again by
the swine [confined animal feeding operation] industry to evade the purpose and statutory
setbacks established by K.S.A. 65-1,180."
Permittees argue that the "appeal is not moot because Sierra Club continues to
attack the legality of [Permittees'] existing swine facilities before the Secretary of Health
and Environment, despite the [KDHE's] granting of [Permittees'] modified permit
applications." Permittees also argue the appeal is not moot because the Secretary has not
ruled on Sierra Club's request for reconsideration of KDHE's "decision to issue the
modified permits and because the original and modified permits have issues in common."
Permittees assert that "dismissal of this appeal without vacating the District Court's
decision would have law-of-the-case or res judicata implications during judicial review
of the modified permits."
Permittees also assert that exceptions to the mootness doctrine apply. First,
Permittees argue the appeal should not be dismissed because it raises issues capable of
repetition and present concerns of public importance. In this appeal and in its appeal of
the modified permits, Sierra Club argues that K.S.A. 65-1,180(a)(3) requires adjacent
18
swine facilities to combine their animal units for calculating setback distances. Second,
Permittees argue that consideration of this appeal is necessary to preserve their rights for
future litigation.
Permittees ask this court to either address the merits of this appeal, or at least
refrain from deciding whether the appeal is moot until the Secretary issues a decision on
Sierra Club's request for reconsideration of the modified permits.
In February 2022, the parties informed the court that the KDHE Secretary denied
Sierra Club's request for reconsideration. Sierra Club has filed another KJRA petition in
district court challenging the issuance of the modified permits.
Jurisdiction over this appeal
Before considering whether this appeal is moot, we must first determine whether
we have jurisdiction over the appeal. KDHE claims we lack jurisdiction over this case
because the district court did not issue a final order.
"'Kansas appellate courts may exercise jurisdiction only under circumstances
allowed by statute.' [Citation omitted.]" Kaelter v. Sokol, 301 Kan. 247, 249, 340 P.3d
1210 (2015). "Decisions on petitions for judicial review of agency action are reviewable
by the appellate courts as in other civil cases." K.S.A. 77-623. In civil cases, "the
appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of
right from . . . [a] final decision in any action." K.S.A. 2020 Supp. 60-2102(a)(4). A final
decision is "an order that definitely terminates a right or liability involved in an action or
that grants or refuses a remedy as a terminal act in the case." Kaelter, 301 Kan. at 250. It
"generally disposes of the entire merits of a case and leaves no further questions or
possibilities for future directions or actions by the lower court." 301 Kan. at 249-50.
19
Here, the district court reversed KDHE's action granting the permits based on its
holding that the permits violated the minimum separation distances from surface water
requirements in K.S.A. 65-1,180. In conclusion, the court stated:
"For the reasons stated above, the Court reverses the final agency action of the
Kansas Department of Health and Environment which granted the four subject permits
for confined feeding facilities for swine and remands this matter to KDHE for further
proceedings on these applications for permits consistent with this ruling. The Court need
not and will not address the other issues raised by the Petitioner concerning the alleged
degradation of water quality in Prairie Dog Creek, the failure to properly measure the
depth to ground water, the failure to adequately ensure proper wastewater application and
the alleged lack of reasonable measures to avoid spray drift, because those issues arise
out of the issuance of the permits and will once again have to be considered and
addressed by the agency on remand."
Citing several cases, KDHE asserts that "the general rule is that remand orders are
not appealable" because they are not final orders. But KDHE fails to mention that these
cases are dealing with situations in which the district court remands a decision to an
agency for more findings of fact. In Holton Transport, Inc. v. Kansas Corporation
Comm'n, 10 Kan. App. 2d 12, 12, 690 P.2d 399 (1984), cited by KDHE, the court found
that "[t]he threshold question is whether the court's order of remand for further findings
of fact is an appealable order." And in another case cited by KDHE, Williams v. General
Electric Company, 27 Kan. App. 2d 792, Syl. ¶ 2, 9 P.3d 1267 (1999), this court found
that "[a]n order of remand from the Workers Compensation Board to an administrative
law judge for additional findings of fact is not a final order subject to appellate review
absent exceptional circumstances." While Williams involved a remand order from an
administrative body and not a district court, it discussed whether a remand order is a final
order.
20
Kansas appellate courts have reviewed district court remand orders in cases that do
not involve remand for more findings of fact. For example, in Kansas Dept. of
Transportation v. Humphreys, 266 Kan. 179, 967 P.2d 759 (1998), the Kansas
Department of Transportation (KDOT) terminated the employment of Roberta
Humphreys. Humphreys appealed to the Kansas Civil Service Board, which entered an
order modifying the agency's dismissal to suspension without pay for a specified time and
demotion. KDOT appealed to the district court. The district court ruled the Board should
have limited its review to whether the dismissal was reasonable. The district court
remanded the matter to the Board to affirm or reverse Humphreys' termination.
Humphreys appealed, arguing the Board had the legal authority to modify KDOT's
disciplinary decision. The Kansas Supreme Court held that it had jurisdiction to consider
the district court's remand order. The court reasoned: "Here, Humphreys exhausted her
administrative remedies. KDOT appealed from the Board's final order. The district court
remanded the case to the Board. The district court's decision was final. Humphreys
appealed the district court's order to the Court of Appeals. This she is permitted to do by
K.S.A. 77-623." 266 Kan. at 181.
This case is more like Humphreys than cases in which the district court remanded
for additional factual findings. Permittees applied and were granted permits for adjacent
facilities. When considered separately, each facility's animal unit numbers did not exceed
K.S.A. 65-1,180(a)(3)'s setback requirements. But if the animal units of each pair of
facilities were combined, the facilities would violate these setback requirements. The
district court reversed KDHE's decision because it found that KDHE should have
combined the animal units for each pair of facilities. It remanded the "matter to KDHE
for further proceedings on these applications for permits consistent with this ruling."
Although the case was remanded, there was no call for additional factual determinations.
Nor would there be a need for any—the district court ruled that the proposed facilities
violated K.S.A. 65-1,180(a)(3). More fact-finding could not alter that decision. The order
21
was thus a final decision under K.S.A. 2020 Supp. 60-2102(a)(4), and this court has
jurisdiction over the district court's decision.
As KDHE notes, the district court did leave some matters undecided. Sierra Club
raised several alternative issues in its petitions for judicial review, including whether
KDHE violated its anti-degradation policy for Prairie Dog Creek in issuing the Husky
Hogs and Prairie Dog Pork permits, whether KDHE properly complied with regulatory
requirements covering depth to ground water for the Husky Hogs and Prairie Dog Pork
permits, and whether the permits for Rolling Hills Pork and Stillwater Swine include
appropriate plans for wastewater application and spray drift. The district court found that
it "need not and will not address" these issues and that they would "once again have to be
considered and addressed by the agency on remand."
KDHE argues the district court's statement about these undecided factual issues
shows its decision was not a final order. This argument is not persuasive. The district
court's statement is somewhat misleading. Given its holding on the setback requirements
of K.S.A. 65-1,180, there was no action KDHE could have taken on the applications
other than denying them. As a result, we find we have jurisdiction to consider the district
court's decisions on standing and K.S.A. 65-1,180.
Mootness
The next question we must address is whether any issues on appeal are rendered
moot by changed factual and legal circumstances. The two major issues on appeal are:
(1) whether Sierra Club has standing to petition for judicial review of KDHE's action and
(2) whether the district court properly interpreted the relevant laws.
Because mootness is a court policy doctrine, which courts developed through
precedent, appellate review of the issue is unlimited. As a general rule, Kansas appellate
22
courts do not decide moot questions or render advisory opinions. Under the mootness
doctrine, the court is to determine real controversies about the legal rights of persons and
properties that are involved in the case properly before it and to adjudicate those rights in
a way that is operative, final, and conclusive. State v. Roat, 311 Kan. 581, 590, 466 P.3d
439 (2020). An issue on appeal will be dismissed only as moot if a party can show clearly
and convincingly that the actual controversy has ended, the only judgment we could enter
would be ineffectual for any purpose, and the judgment would not impact any of the
parties' rights. 311 Kan. at 592. "The party asserting mootness generally bears the initial
burden of establishing that a case is moot in the first instance. [Citation omitted.]" 311
Kan. at 593.
Appellate courts commonly apply an exception when an issue "'is capable of
repetition and raises concerns of public importance.'" State v. Kinder, 307 Kan. 237, 244,
408 P.3d 114 (2018). "Public importance means more than that certain members of the
general public are interested in the decision of the appeal from motives of curiosity or
because it may bear upon their individual rights or serve as a guide for their future
conduct. [Citation omitted.]" State v. Hayden, 52 Kan. App. 2d 202, 206, 364 P.3d 962(2015).
The issue here is whether Permittees can operate their pairs of facilities with
adjacent property lines. KDHE believed they could, so it permitted the facilities. The
district court disagreed and reversed the agency action granting the permits. At the outset,
we note the changed property boundaries and resulting applications for modified permits
are not relevant to resolution of this appeal. The question on appeal is not whether
Permittees can operate their facilities with a strip of land inserted between them. What
Permittees wanted, and what they ask this court to grant them an opportunity to argue for
on appeal, is reinstatement of the four initial permits issued by KDHE. The modified
permits are not before us.
23
Along these same lines, we can dispose of KDHE's argument that the modified
permits caused Sierra Club to lose standing (assuming it had standing to begin with).
While it is true that Sierra Club's alleged injuries are currently caused by the modified
permits, there remains a threatened injury in that this court could reverse or vacate the
district court's decisions on the original permits. Similarly, KDHE's argument in its
original brief that the case is not ripe for adjudication because of Permittees' applications
for modified permits is also unpersuasive. Permittees applied for the modified permits to
protect the continuity of their operations, not because they wanted to forfeit their request
to operate the pairs of facilities adjacently. Failure to address the issues in this appeal
because Permittees obtained modified permits would deprive Permittees of the
opportunity to obtain the permits that they originally sought. Deciding on this basis
would also hurt future parties. Parties would have to choose between: (1) ceasing or
delaying operations to pursue an appeal of a denied permit or (2) making do with the
circumstances and apply for a modified permit as Permittees did here at the cost of losing
their opportunity to pursue the permit on its original grounds.
A mootness determination must include an analysis of whether a judgment from
this court "on the merits would have meaningful consequences for any purpose, including
future implications." Roat, 311 Kan. at 592-93. Here, failure to address the appeal's
merits would deprive Permittees of their opportunity to seek reinstatement of their
original permits. While it is true that Permittees managed to avoid the consequences of
the district court's unfavorable interpretation of K.A.R. 28-18a-4(d) by inserting a buffer
between their facilities, that solution should not cost Permittees the right to appeal their
permits for adjacent facilities. And while Permittees could avoid the district court's
interpretation of K.A.R. 28-18a-4(d) by reapplying for a permit now that the new
regulation is in effect, they should not have to apply for a new or modified permit if they
are already entitled to the permits as originally issued.
24
KDHE has failed to clearly and convincingly show "'the actual controversy has
ended, the only judgment that could be entered would be ineffectual for any purpose, and
it would not impact any of the parties' rights.'" 311 Kan. at 592. For these reasons, we
find the issues on this appeal are not moot.
Standing
"[P]arties in a judicial action must have standing as part of the Kansas case-or-
controversy requirement imposed by the judicial power clause of Article 3, § 1 of the
Kansas Constitution." Moser, 298 Kan. at 29. Standing is a component of subject matter
jurisdiction. This court exercises unlimited review over whether a party has standing. 298
Kan. at 29.
To establish standing, Sierra Club had to show that it had statutory standing under
the KJRA and that it satisfied the traditional associational standing test set out in Kansas
caselaw. Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1121-22, 307 P.3d
1255 (2013). This test provides: "An association has standing to sue on behalf of its
members if: (1) the members have standing to sue individually; (2) the interests the
association seeks to protect are germane to the organization's purpose; and (3) neither the
claim asserted nor the relief requested requires participation of individual members." 297
Kan. at 1126.
Statutory Standing
The first question is whether Sierra Club had statutory standing under the KJRA to
petition for review of KDHE's action. The KJRA provides that these persons have
standing to petition for judicial review of an agency action:
25
"(a) A person to whom the agency action is specifically directed;
"(b) a person who was a party to the agency proceedings that led to the agency
action;
"(c) if the challenged agency action is a rule and regulation, a person subject to
that rule; or
"(d) a person eligible for standing under another provision of law." K.S.A. 77-
611.
The parties focus their arguments on subsection (b).
The parties and district court misunderstood the distinction between statutory
standing and traditional standing. Sierra Club argued below that it had statutory standing
because its members, Wolfe and the Rosses, participated in the agency proceedings
below and thus had statutory standing to sue individually. The district court agreed. It
held that because Sierra Club mentioned Wolfe's name in its public comment, Wolfe
participated in, and thus was a party to, the proceedings. It held that the Rosses'
submission of a public comment was also sufficient participation to make the Rosses
parties to the proceedings. On appeal, Permittees only challenge Sierra Club's statutory
standing as to the Husky Hogs and Prairie Dog Pork permits. The parties all focus their
arguments on whether Wolfe participated sufficiently in the proceedings to be considered
a party. The problem with the parties' and district court's approach, however, is that
statutory standing is distinct from traditional standing. There is no requirement that Sierra
Club establish that its members participated in the proceedings for it to establish statutory
standing.
This is evident in Kansas associational standing cases. In Sierra Club v. Moser,
Sierra Club challenged KDHE's decision to issue an air emission source construction
permit. When examining whether Sierra Club had statutory standing under the KJRA, the
court held that Sierra Club's participation in the proceedings and submission of comments
26
was enough to accord party status in the proceedings. The court did note that Sierra Club
and its members submitted comments, but it did not state that the members' participation
in the proceeding was necessary. Rather, the focus was on Sierra Club's participation. 298
Kan. at 30-32. Later, while analyzing whether Sierra Club had traditional standing, the
court turned its focus to whether Sierra Club's individual members would have standing
to sue. 298 Kan. at 33-42.
This was also the case in Board of Sumner County Comm'rs v. Bremby, 286 Kan.
745, 189 P.3d 494 (2008). There, the court found that the Board of Commissioners had
statutory standing under the KJRA to challenge KDHE's issuance of a landfill
construction permit because the Board submitted comments and a study it commissioned
to KDHE during the permit proceedings. 286 Kan. at 759. The court did not state that
individual members of the Board needed to participate in the proceedings. Not until the
court discussed traditional standing did it consider whether the "individuals represented
by the Board would have standing to challenge the agency's decision under the traditional
injury test." 286 Kan. at 761, 763-64.
Sierra Club was "a person who was a party to the agency proceedings that led to
the agency action." K.S.A. 77-611(b). The KJRA includes associations in its definition of
"person." K.S.A. 77-602(h). An "interested persons' submission of written comments
during a public notice and comment period . . . qualif[ies] as participation within the
meaning of the KJRA's standing requirements." Bremby, 286 Kan. at 758. There is no
question that Sierra Club publicly commented on the proceedings during the public notice
and comment period for each of the permits at issue. As a result, we find that Sierra Club
has statutory standing under the KJRA to pursue this action.
27
Traditional Standing
Having found that Sierra Club had statutory standing to petition for judicial review
of the permits, the next question is whether Sierra Club had traditional, also called
common-law, standing. When an association sues on behalf of its members, it has
standing when: "(1) the members have standing to sue individually; (2) the interests the
association seeks to protect are germane to the organization's purpose; and (3) neither the
claim asserted nor the relief requested requires participation of individual members."
Friends of Bethany Place, 297 Kan. at 1126. Sierra Club's members have standing to sue
individually if they can "show a cognizable injury and establish a causal connection
between the injury and the challenged conduct." Moser, 298 Kan. at 33.
Before proceeding, we must address a threshold issue of what evidence can be
considered in analyzing this issue. Sierra Club attached affidavits to its opening brief in
support of its petition for judicial review that it relied on in establishing standing. The
district court ruled that although this evidence was outside the agency record, it could be
considered on the standing issue. This tracks Kansas Supreme Court precedent, which
provides "that a petitioner may rely on the administrative record or may file affidavits or
declarations with a court to establish standing of a party seeking judicial review of an
agency action" and "[a] court, when determining if it has jurisdiction to review an agency
action, can consider the affidavits and declarations as evidence of a petitioner's standing."
298 Kan. at 39. Additionally, we may consider these affidavits whether or not Wolfe and
the Rosses participated in the agency proceedings because "the statutory standing
requirement of participation in the process" does not "carr[y] over into the traditional
association standing test." 298 Kan. at 40.
The district court held that Wolfe and the Rosses each satisfied the traditional
standing requirements and provided Sierra Club with associational standing. We examine
the court's holdings as to Wolfe first, then the Rosses.
28
Carl Wolfe
Injury
The district court held that Wolfe demonstrated injury by asserting that issuing the
contested permits would impair his recreational use of Harlan County Reservoir.
The United States Supreme Court has "held that environmental plaintiffs
adequately allege injury in fact when they aver that they use the affected area and are
persons 'for whom the aesthetic and recreational values of the area will be lessened' by
the challenged activity." Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 183, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000).
Wolfe said he was concerned that large concentrations of swine in confined animal
feeding operations, such as the ones at issue, would increase contaminants in the
Reservoir. This would limit the activities he can enjoy at the lake. He stated that he was
concerned about all four permits at issue. Wolfe alleged that he used the affected area and
that the challenged activity would lessen the recreational value of the area. This is
sufficient under Supreme Court precedent for Wolfe to establish sufficient injury for
Sierra Club to petition for review of the four permits.
KDHE argues that Wolfe's alleged injury is too general. A cognizable injury must
be particularized, meaning it "affect[s] the plaintiff in a '"personal and individual way."'"
Gannon v. State, 298 Kan. 1107, 1123, 319 P.3d 1196 (2014). The alleged injury "cannot
be a '"generalized grievance"' and must be more than '"merely a general interest common
to all members of the public."'" 298 Kan. at 1123. This concept was discussed in Sierra
Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). There, Sierra
Club filed an action for declaratory judgment preventing the construction of a ski resort
in the Mineral King Valley in California. The district court granted the preliminary
29
injunction but was ultimately reversed by the Ninth Circuit. The Ninth Circuit held that
Sierra Club lacked standing because "there was 'no allegation in the complaint that
members of the Sierra Club would be affected by the actions of (the respondents) other
than the fact that the actions are personally displeasing or distasteful to them.'" 405 U.S.
at 731. The United States Supreme Court agreed with the Ninth Circuit.
The Court began by identifying the evidence relevant to Sierra Club's alleged
injury. 405 U.S. at 734. It noted that Sierra Club alleged that the development "'would
destroy or otherwise adversely affect the scenery, natural and historic objects and wildlife
of the park and would impair the enjoyment of the park for future generations.'" 405 U.S.
at 734. The Court recognized that this type of harm might amount to injury, but stated
that "the 'injury in fact' test requires more than an injury to a cognizable interest. It
requires that the party seeking review be himself among the injured." 405 U.S. at 734-35.
The Court then stated:
"The impact of the proposed changes in the environment of Mineral King will
not fall indiscriminately upon every citizen. The alleged injury will be felt directly only
by those who use Mineral King and Sequoia National Park, and for whom the aesthetic
and recreational values of the area will be lessened by the highway and ski resort. The
Sierra Club failed to allege that it or its members would be affected in any of their
activities or pastimes by the Disney development. Nowhere in the pleadings or affidavits
did the Club state that its members use Mineral King for any purpose, much less that they
use it in any way that would be significantly affected by the proposed actions of the
respondents." 405 U.S. at 735.
Sierra Club did provide adequate allegations of Wolfe's injury. Wolfe specified that he
uses Harlan County Reservoir for recreation, and that Permittees' proposed actions would
decrease the recreational value of the lake to him. This is the particularity that the
Supreme Court called for in Sierra Club v. Morton. KDHE's argument is not persuasive
on this point.
30
Causation
In ruling on causation, the district court noted that Wolfe said he was a wildlife
biologist and that he claimed there was a relationship between blue-green algae outbreaks
and contamination caused by confined animal feeding operations. Wolfe also stated that
animal wastes from the proposed confined animal feeding operations would be
discharged into water bodies that drain into the Harlan County Reservoir. The district
court found this evidence sufficient to establish a causal connection between the alleged
injuries and the proposed permits.
Similar causation evidence was presented and found insufficient in Sierra Club v.
Moser, 298 Kan. 22. There, Sierra Club sought judicial review of KDHE's decision to
issue an air emission source construction permit to a power plant called Holcomb 2.
Sierra Club asserted that the permit would injure its members' health by harming the
environment. As evidence that it had common-law standing to bring the action, Sierra
Club provided a declaration from one of its members—Barbara Campbell. Campbell's
declaration stated that "'[a]s an elderly person, [she was] very worried about breathing the
pollutants that will come from the new coal plant, and the negative effects that those
pollutants may have on [her] health.'" 298 Kan. at 40. The Kansas Supreme Court held:
"While the declaration thus provides evidence of Campbell's proximity to the
Holcomb 2 site and her age, her expression of 'concern' does not establish a causal
relationship between these characteristics and an imminent and probable injury related to
adverse effects of anticipated pollutants from Holcomb 2. But we are aware of no
authority that requires a declarant to both state a threatened injury and establish a
causation theory without the assistance of an expert. In fact, where, as here, causation is
based on scientific evidence and is not within common understanding, we generally
require the opinion of an expert. See, e.g., Schlaikjer v. Kaplan, 296 Kan. 456, 464, 293
P.3d 155 (2013). Given that, it is appropriate to examine whether there is other evidence
that establishes the missing causal link." 298 Kan. at 40-41.
31
The court then looked at other evidence in the record to conclude that Sierra Club
established causation. First, the court noted that KDHE conducted an air quality impact
analysis which suggested "that proximity to the plant, including the 4-mile distance of
Campbell's home, increases the exposure to potentially harmful pollutants." 298 Kan. at
41. Second, the court looked at a written declaration provided by Sierra Club from Dr.
Jonathan Levy, an Associate Professor of Environmental Health and Risk Assessment at
the Harvard School of Public Health. Dr. Levy contended that the Holcomb 2
construction "'would contribute to particulate matter concentrations in the vicinity of the
plant and in downwind areas, increasing the health risks . . . to individuals in those
areas.'" 298 Kan. at 41. The exposure was also linked to several serious health problems
more likely to occur in sensitive populations, including elderly persons like Campbell.
298 Kan. at 41.
Wolfe's affidavit is much like Campbell's declaration. Wolfe was concerned about
contaminants that may come from the proposed facilities and the negative effects those
contaminants may have on Harlan County Reservoir. As in Sierra Club v. Moser, Wolfe's
affidavit does not establish a causal relationship between the proposed facilities and
alleged injury. Causation here is based on scientific evidence that is not within common
understanding, so like in Sierra Club v. Moser an expert opinion was necessary to
establish causation.
While the district court noted that Wolfe was a wildlife biologist, it did not find
that he was qualified to offer an expert opinion on water-related issues. For a witness to
provide expert testimony, the testimony must be "based on sufficient facts or data" and
"the product of reliable principles and methods." K.S.A. 2020 Supp. 60-456(b). The
witness must also show that he or she "has reliably applied the principles and methods to
the facts of the case." K.S.A. 2020 Supp. 60-456(b).
32
Sierra Club has not provided sufficient evidence that Wolfe's alleged injuries are
fairly traceable to the permits at issue. According to Sierra Club, Harlan County
Reservoir is about 14 miles from Permittees' proposed sites. Prairie Dog Creek is a
tributary of the Upper Republican River which flows into the Harlan County Reservoir.
Sierra Club admitted that Prairie Dog Creek has a "pronounced meander." While the
specific creek length is not evident from the record, the distance between the proposed
facilities and Harlan County Reservoir, when traveling by creek, would be many miles.
Courts in other jurisdictions have refused to presume that "an injury is fairly
traceable to a defendant's conduct solely on the basis of the observation that water runs
downstream." Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358,
362 (5th Cir. 1996). Plaintiffs must provide other evidence. The 5th Circuit stated that
people who use waterways "far downstream from the source of unlawful pollution may
satisfy the 'fairly traceable' element by relying on alternative types of evidence." 95 F.3d
at 362. The court suggested that plaintiffs in such cases could "produce water samples
showing the presence of a pollutant of the type discharged by the defendant upstream or
rely on expert testimony suggesting that pollution upstream contributes to a perceivable
effect in the water that the plaintiffs use." 95 F.3d at 362; see also Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 162 (4th Cir. 2000) ("In applying
the 'fairly traceable' requirement, some distinction, of course, must be made between
plaintiffs who lie within the discharge zone of a polluter and those who are so far
downstream that their injuries cannot fairly be traced to that defendant.").
Sierra Club mentioned in its public comment that Prairie Dog Creek had been
tested about 8.5 miles away from the proposed sites, and the test results showed excess
levels of certain nutrients in the water. But Sierra Club admitted that those nutrients could
have come from many sources. There was no evidence tying Permittees to the threatened
harm alleged. For these reasons, Wolfe did not provide Sierra Club with standing to
petition for judicial review of KDHE's action. The district court erred in holding
33
otherwise. Because Wolfe was the sole basis for Sierra Club's challenge to the Husky
Hogs and Prairie Dog Pork permits, the district court's decision on those permits should
be reversed for lack of jurisdiction.
Rodney and Tonda Ross
The district court also ruled that Sierra Club had associational standing based on
the Rosses' individual standing. But the Rosses only claimed that the Rolling Hills Pork
and Stillwater Swine permits threatened them with injury so even if they provide Sierra
Club with standing, the standing will only allow Sierra Club to challenge those two
permits. The district court found that the Rosses provided sufficient allegations of two
injuries that would result from issuing the permits. First, it held that the Rosses alleged
the same injury as Wolfe for impaired recreational use of Harlan County Reservoir.
Second, it held that the Rosses alleged further injury on their claim that swine waste from
the facilities might drift onto their property.
Permittees argue we must disregard Sierra Club's claims based on the Rosses'
individual standing because no evidence showed that the Rosses were Sierra Club
members until they filed their January 19, 2019 declaration. Sierra Club's petition for
review for the two permits was filed in September 2018. While Sierra Club's petition for
judicial review does state that Rodney was a member (it did not mention Tonda), there is
no evidence in the agency record or in the declarations presented to the district court to
support this assertion. None of the public comments submitted during the agency
proceedings mention that the Rosses were Sierra Club members. The Rosses' declaration
states that they are members but does not state when they joined Sierra Club. Sierra
Club's failure to provide evidence that the Rosses were members when it petitioned for
review is fatal to Sierra Club's claim that it has standing because the Rosses have
individual standing.
34
Sierra Club attached a declaration to its appellate brief from its business records
custodian alleging the Rosses became Sierra Club members on August 2, 2018. But
considering the declaration would be inappropriate because "[m]aterial which is annexed
to an appellate brief by way of an appendix is not a substitute for the record itself and
cannot be considered on appeal." In re Gershater, 270 Kan. 620, 633, 17 P.3d 929(2001); Supreme Court Rule 6.03(b) (2022 Kan. S. Ct. R. at 36).
Acknowledging this general rule, Sierra Club argues that, because a district court
can look at evidence outside the agency record to determine standing, the appellate court
can also look at evidence outside the district court record. See Moser, 298 Kan. at 39.
Sierra Club cites no caselaw to support its proposition. Further, the rationale for allowing
the district court to consider evidence outside the agency record does not apply in the
appellate context. A district court may consider evidence on standing not submitted to an
agency because petitioners need not establish standing to participate in proceedings
before an agency. The constitutional requirement to establish standing does not arise until
the petitioner seeks judicial review. 298 Kan. at 36-37. Because an agency is not asked to
rule on standing, the district court is not reviewing an agency action when it makes a
standing determination. "And, although an organization such as Sierra Club could
establish the prerequisites for associational standing at the administrative level, it is not
required to do so." 298 Kan. at 39. On appeal, however, the petitioner needed to provide
evidence of standing to the district court. This court is limited to reviewing only the
evidence that is in the record. Sierra Club's assertion to the contrary is not persuasive.
Even if Sierra Club had provided sufficient evidence that the Rosses were
members when it petitioned for review, the district court still erred in finding that the
Rosses had individual standing.
The district court first held that the Rosses shared the same harm as Wolfe on
diminished recreational enjoyment of Harlan County Reservoir. Yet the Rosses'
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declaration was less specific on this subject than Wolfe's. The Rosses stated that they
owned a vacation home near Harlan County Reservoir and they were worried about
degradation of the lake's water quality caused by the Rolling Hills Pork and Stillwater
Swine permits. They did not state that their own recreational interests on the lake would
be impaired. While they mentioned that they enjoy boating on the lake, they did not state
that their boating activities would be limited by issuance of the permits. "The relevant
showing for Article III standing is not injury to the environment but injury to the
plaintiff." Friends of the Earth, Inc., 528 U.S. at 169. Because the Rosses did not allege
an injury to themselves, their declaration cannot provide Sierra Club with associational
standing. The district court erred in holding that the Rosses were injured by diminished
recreational enjoyment of the lake.
The district court found that the Rosses provided evidence of a separate injury—
the threat of swine waste drifting onto their property. The facilities' nutrient management
plans showed that they planned to use a central pivot located about 200 feet from the
Rosses' home to spray swine waste. At the time of the agency proceedings, the pivot was
used for irrigation water, and the Rosses said that they "routinely felt the mist of the
irrigation water as it drifted onto our property." They were concerned that if the permits
were granted, swine waste would spray towards their house on breezy days, exposing
them to bad smells and adverse health consequences.
Damage to health and property caused by the spray pivot, and possibly even the
suffocating odors caused by the pivot if severe enough, would likely constitute a
cognizable injury. The problem is that it must be probable that the injury will occur.
Moser, 298 Kan. at 33 (stating that "the association or one of its members must have
suffered cognizable injury or have been threatened with an impending, probable injury
and the injury or threatened injury must be caused by the complained-of act or
omission"). Allegations of possible future injury cannot satisfy the requirements of
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standing. Unless there is a substantial probability of injury, the injury remains conjectural
and not imminent. 298 Kan. at 33-34.
The reason the injury is merely conjectural is that KDHE tried to address the
Rosses' concerns about spray drift. And KDHE's actions may have ameliorated the risk of
spray drift. In response to the Rosses' concerns about spray drift, KDHE required
Permittees to remove end guns on the center pivot, which would reduce the application of
waste up to 120 feet, or to "provide a plan to KDHE detailing equivalent alternatives that
will be implemented to avoid spray drift of swine waste onto non-owned property."
Further, KDHE required the applicants to notify KDHE at least 24 hours before its first
application of swine waste with the pivot so KDHE could observe the application. KDHE
also noted that swine facilities are required by law "to use reasonable procedures and
precautions to avoid spray drift from the land application site." See K.S.A. 65-
1,182(f)(5)(B). It said that if the applicants' measures were inadequate, KDHE would
require them to implement additional procedures and precautions. Given these steps, it
does not seem probable that the Rosses' fears about spray drift will materialize.
As a final matter, Permittees cite another part of the associational standing test as a
way to find that the Rosses cannot provide Sierra Club with standing to challenge the
permits. For an association to have standing, "neither the claim asserted nor the relief
requested requires participation of individual members." Friends of Bethany Place, 297
Kan. at 1126. Permittees argue that "to resolve the issue of whether the application of
wastewater from the Norton County facilities will impermissibly expose the Rosses'
home to wastewater drift or whether the facilities are too close to the Rosses' livestock
pond will obviously require the Rosses to be involved." This confuses Sierra Club's
burden to establish standing with its burden to establish KDHE erred in granting the
permits. The "claim asserted" and "relief requested" mentioned in the associational
standing test is referring to the substantive claim brought by Sierra Club in its petition for
review. See Moser, 298 Kan. at 34-35 ("[N]either the claim asserted nor the relief
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requested required the participation of individual members. FACT [Families Against
Corporate Takeover] sought judicial review of an agency action, and the relief sought
was revocation of the hog-farm permit. The analysis of whether the KDHE complied with
the various rules and regulations involved in granting the permit did not require the
participation of individual FACT members."). Here, the issue was whether KDHE
correctly interpreted and applied the relevant laws in granting the four permits. The
Rosses' participation was not required for Sierra Club to assert that claim or to receive
relief.
Conclusion
The Kansas Supreme Court recently cautioned this court against opining on an
appeal's merits when jurisdiction is lacking. In re Estate of Lentz, 312 Kan. 490, 504, 476
P.3d 1151 (2020). Since we find Sierra Club lacks standing to petition for review of
KDHE's issuance of the original permits, we need not address the merits of the parties'
arguments.
We reverse the district court's decision and remand with instructions to reinstate
the original permits.
Reversed and remanded with directions.
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