Lund v. Portsmouth Local Air Agency
2014 Ohio 2741
Ohio Ct. App.2014Background
- ODNR sought and obtained PLAA (as Ohio EPA representative) permission to conduct an open burn at Chaparral Prairie State Nature Preserve to maintain prairie/cedar barrens, checked box for "horticultural, silvicultural, range management or wildlife management."
- Barbara Lund appealed the grant of permission to the Environmental Review Appeals Commission (ERAC), arguing the burn was not for the claimed purposes.
- ERAC denied ODNR/PLAA's motion to dismiss for lack of standing, partially granted/denied summary judgment, and ultimately found PLAA erred in issuing the permission.
- ODNR burned the prairie on April 16, 2013; the permission expired May 4, 2013.
- ODNR/PLAA appealed ERAC's decision to the Tenth District, arguing Lund lacked standing and PLAA lawfully issued the permit.
- The court held the appeal moot because the burn had already occurred and the permission expired, and it declined to apply the "capable of repetition, yet evading review" exception.
Issues
| Issue | Plaintiff's Argument (Lund) | Defendant's Argument (ODNR/PLAA) | Held |
|---|---|---|---|
| Standing to appeal PLAA's grant of permission | Lund had standing to challenge the permit | Lund lacked standing; appeal should be dismissed | Moot — court declined to decide standing because burn already occurred |
| Lawfulness/reasonableness of PLAA's issuance under Ohio Adm.Code 3745-19-04(C)(5) | PLAA erred; burn not for listed management purposes | PLAA acted reasonably and lawfully in granting permission | Moot — court did not reach the merits because case was moot |
| Applicability of "capable of repetition, yet evading review" exception | Exception applies; future similar burns will evade review | Exception does not apply; parties could obtain stay or apply earlier | Exception not met: plaintiffs failed to show (1) inherently short duration and (2) reasonable expectation of repetition |
| Whether court should issue advisory relief | Lund seeks review to vindicate rights and guidance | ODNR/PLAA oppose advisory opinion; argue appeal moot | Court refused to issue advisory opinion; dismissed appeal as moot |
Key Cases Cited
- U.S. v. W.T. Grant Co., 345 U.S. 629 (U.S. 1953) (mootness entitles defendant to dismissal as of right)
- Fortner v. Thomas, 22 Ohio St.2d 13 (Ohio 1970) (courts must avoid issuing advisory opinions; abstain from abstract questions)
- State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229 (Ohio 2000) (two-part test for "capable of repetition, yet evading review")
- In re L.W., 168 Ohio App.3d 613 (Ohio Ct. App. 2006) (definition and application of mootness doctrine)
- Culver v. Warren, 84 Ohio App. 373 (Ohio Ct. App.) (mootness prevents practical legal effect of judgment)
- James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788 (Ohio Ct. App.) (requiring more than theoretical possibility to satisfy repetition prong)