MISSOURI SOYBEAN ASSOCIATION, et al., Appellants, v. THE MISSOURI CLEAN WATER COMMISSION, et al., Respondents.
No. SC 84336.
Supreme Court of Missouri, En Banc.
April 22, 2003.
Nevertheless, respondent maintains that Pittsburgh Steel‘s failure to satisfactorily identify the property subject to the lien does not necessitate dismissal of the foreclosure action, as deficiencies in the property description can be cured by amendment anytime prior to judgment. However, the statutorily prescribed time for filing a lien with the correct description expired on the same day that Pittsburgh Steel filed its petition for foreclosure in the circuit court. As the lien claimant, Pittsburgh Steel bore the responsibility of ensuring proper jurisdiction within the statutory time limitation period, see
Respondent cites three cases in support of the claim that the petition can now be amended, but all are inapposite. These cases, Hill Behan Lumber Co. v. Dinan, 786 S.W.2d 904 (Mo. App. 1990); Paradise Homes, Inc. v. Helton, 631 S.W.2d 51 (Mo. App. 1981); and Hertel Electric Co. v. Gabriel, 292 S.W.2d 95 (Mo. App. 1956), all hold that lien statements that describe land in excess of the statutory maximum are sufficient to commence foreclosure actions and can be remedied prior to judgment. Hill Behan, 786 S.W.2d at 906; Paradise Homes, 631 S.W.2d at 53-54; Hertel Electric, 292 S.W.2d at 99-100. However, these holdings do not support the proposition that a wholly defective property description may be amended anytime prior to judgment, for unlike Pittsburgh Steel‘s property description, the over-inclusive descriptions encompassed the land properly subject to the lien, and, in that respect, were “so near as to identify the same.”
III.
In conclusion, Pittsburgh Steel‘s Statement of Mechanic‘s Lien failed to substantially comply with the requirements of
WHITE, WOLFF, BENTON, LAURA DENVIR STITH and TEITELMAN, JJ., and CUNDIFF, SP.J., concur.
PRICE, J., not participating.
Jeremiah W. (Jay) Nixon, Atty. Gen., Timothy P. Duggan, Asst. Atty. Gen., William H. Bryan, Asst. Atty. Gen., Jefferson City, for Respondents.
The appellants, several trade and business associations,1 challenge a decision by the Missouri Clean Water Commission (Commission) to include the Missouri and Mississippi Rivers (Rivers) on the State‘s 1998 impaired waters list that is submitted to the Environmental Protection Agency (EPA) pursuant to the federal Clean Water Act. In their petition for declaratory judgment and injunctive relief, brought under the Missouri Administrative Procedure Act, (MAPA),
I. Background
A. The Clean Water Act
In response to increasing amounts of water pollution, and a growing public concern for the quality of the nation‘s waters, Congress passed the Clean Water Act (CWA) in 1972, enacting sweeping, comprehensive revisions to the nation‘s water pollution laws, which had proved to be inadequate and ineffective.3 See generally EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 202-3, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); Pronsolino v. Marcus, 91 F.Supp.2d 1337, 1341 (N.D.Cal. 2000); Natural Resources Defense Council v. EPA, 915 F.2d 1314, 1316 (9th Cir. 1990); Drew Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 Envtl. L. Rep. 10574 (1997). Congress‘s intent in enacting the CWA was to establish “an all-encompassing program of water pollution regulation,” and “to establish a comprehensive long-range policy for the elimination of water pollution.” City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 318, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). The CWA “anticipates a partnership between the States and the Federal Government, animated by a shared objective: ‘to restore and maintain the chemical, physi-
The CWA employs a variety of interrelated programs designed to regulate water pollution and achieve improved water quality. Two of these programs are the National Pollution Discharge Elimination System (NPDES) permit program and, the program at issue in this appeal, the Total Maximum Daily Load (TMDL) program. For purposes of this case, a detailed explanation of the intricacies of the NPDES permit program is not necessary but, because these programs are interrelated, a basic explanation is necessary. Under the CWA, no pollution may be discharged from a point source unless the point source obtains, and complies with the terms of, a NPDES permit.4 See, e.g., Arkansas, 503 U.S. at 102; Sierra Club, North Star Chapter v. Browner, 843 F.Supp. 1304, 1306 (D. Minn. 1993). Included among the terms of a NPDES permit are effluent limitations—restrictions on the quantities, rates, and concentrations of specified substances that may be discharged from point sources.5 Sierra Club, North Star Chapter, 843 F.Supp. at 1306;
In enacting the CWA, Congress realized that the strategy of imposing effluent limitations on point sources alone might be insufficient to achieve and maintain improved water quality. Kingman Park Civic Association v. EPA, 84 F.Supp.2d 1, 2 (D.D.C. 1999); Natural Resources Defense Council, 915 F.2d at 1317; Warren, supra, at 116. The NPDES permitting system is aimed only at controlling pollution coming from a point source. See, e.g., Sierra Club v. Meiburg, 296 F.3d 1021, 1024 (11th Cir. 2002). However, water pollution can also come from nonpoint sources which, by their nature, cannot be regulated
Thus, in addition to imposing effluent limitations, the CWA also utilizes a water-quality based approach to achieve its goals. Sierra Club, North Star Chapter, 843 F.Supp. at 1307. In enacting the CWA, Congress supplemented the technology-based effluent limitations with the pre-existing regime of water quality standards. Natural Resources Defense Council, 915 F.2d at 1317; Marcus, 91 F.Supp.2d at 1341-2, 1346;
States are required to establish water quality standards for each body of water within the state‘s borders.6
One program designed to help achieve these water quality standards is the TMDL program set forth in
As the first step in this program, states are required to identify and compile a list of impaired waters—those waters in that state that do not meet, or are not expected to meet, the applicable water quality standards even after effluent limitations are imposed.
Identification of impaired waters and preparation of a 303(d) list is but the “starting point for the CWA‘s pollution regulation process.” American Canoe, 30 F.Supp.2d at 912; see also, e.g., Marcus, 91 F.Supp.2d at 1346. Approval of a water to be included on the 303(d) list triggers a state‘s obligation to develop a TMDL for the listed water.
As this language suggests, and as conceded by the appellants, TMDL development is a technically complex and time-consuming process. Scientific studies and analyses must be undertaken to calculate and determine the load of a pollutant that the waterway can assimilate without violating the water quality standard for that water. Warren, supra, at 118. The total maximum daily load must be established for all pollutants preventing or expected to prevent attainment of water quality standards for the particular body of water.
ble by 2010. Id. States may consider a number of factors in prioritizing its schedule for TMDL development, including, but not limited to, the priority ranking set forth in the 303(d) list, TMDL complexity, the value and vulnerability of particular waterbodies, the recreational, economic, and aesthetic importance of particular waterbodies, and the degree of public interest and support.
Establishing a waterway‘s assimilative capacity and TMDL is hardly the end of the road. Warren, supra, at 118. TMDLs are “primarily informational tools that allow the states to proceed from the identification of waters requiring additional planning to the required plans.” Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 2002). TMDLs “serve as a link in an implementation chain that includes federally-regulated point source controls, state or local plans for point and nonpoint source pollution reduction, and assessment of the impact of such measures on water quality, all to the end of attaining water quality goals for the nation‘s waters.” Id. Once established and approved, a state must incorporate the
Each TDML document includes an implementation plan. Included in this plan is a description of the control actions to be taken and a schedule for implementation of those actions. The implementation plan also provides for follow-up monitoring and evaluation and a process for making revisions based on that evaluation. States may take a variety of actions to implement the TMDL to ensure that the sum of pollutants does not exceed the TMDL and to achieve compliance with the water quality standards for that body of water. See Meiburg, 296 F.3d at 1025. Depending on the particular pollution problem of a given body of water, a state‘s plan may include more stringent controls and limitations on a point source than currently required under the NPDES permit; thus, the implementation plan could include a schedule for NPDES permit revisions. See id. Also a state might ultimately implement various controls regarding land-management practices, such as restricting the use of land, in order to reduce nonpoint source pollution. See id.
B. Missouri‘s Clean Water Law
In the Missouri Clean Water Law, chapter 644, our legislature announced the State‘s policies regarding the protection of the State‘s waters. See
State is: to conserve the waters of the State; to protect, maintain, and improve the quality of the State‘s waters; to ensure that no waste is discharged into any waters of the State without first receiving treatment to protect the beneficial uses of the waters and to meet the requirements of the CWA; and to provide for the prevention, abatement and control of new or existing water pollution.
In Missouri, the State‘s responsibilities under the CWA are carried out by two administrative agencies: the Missouri Department of Natural Resources (MDNR) and the Commission. The MDNR is Missouri‘s “general environmental agency charged with administering the ‘programs assigned to the Department relating to environmental control and the conservation and management of natural resources.‘” Willamette Industries, Inc. v. Clean Water Commission of the State of Missouri, 34 S.W.3d 197, 199 (Mo. App. 2000) quoting
C. Missouri‘s 303(d) List for 1998
MDNR presented its recommended list of impaired waters at the Commission‘s public meeting in September 1998. The list did not include the Rivers. During this meeting, representatives of various organizations spoke for and against inclusion of the Rivers on the list. A representative from MDNR affirmed that the Rivers were not being recommended for inclusion on the list. The Commission adopted the 303(d) list as recommended by the MDNR, but also added the Rivers to the list. This marked the first time the Rivers had been included on Missouri‘s 303(d) list.
As required by the Clean Water Act, the Commission submitted Missouri‘s list of impaired waters to the EPA. The list submitted by the Commission divided the waters into three categories: (1) those waters proposed for full TMDL development; (2) those waters reported as impaired, but for which documentation was outdated or inadequate—requiring further environmental monitoring prior to TMDL development. If the additional monitoring confirmed the impaired status, then full TMDL development would proceed; and (3) those waters, recognized as impaired, but for which there was no practical reme-
dy.16 The Rivers were listed in the second category of waterbodies—those waters requiring further environmental monitoring and collection of data to assess the waters’ impairment before TMDLs could be developed. The Rivers were listed as impaired because of “habitat loss,” due to “channelization,” and given a medium priority ranking. No specific dates were scheduled for the development of TMDLs for the Rivers; rather, the schedule dates were left as “to be determined.”
After review, the EPA partially approved Missouri‘s submitted list and partially disapproved the list for failure to include five waters that did not meet Missouri‘s water quality standards and for failure to retain ten waters from the State‘s 1996 list. The EPA approved Missouri‘s identification of waters included on the submitted 303(d) list, including the Rivers, and, following publication and a period of public comment on its proposed addition of fifteen waterbodies, the EPA added six waters to Missouri‘s 303(d) list for 1998. The final list contained a total of 165 waters. As to Missouri‘s three-category division of the listed waters, the EPA stated that even though Missouri chose to categorize its list, the EPA‘s position remained that TMDLs were to be established for all waterbodies on Missouri‘s 1998 list.17
After the Commission‘s adoption of Missouri‘s 303(d) list, the appellants, pursuant to
The circuit court dismissed the appellants’ action with prejudice, for lack of subject-matter jurisdiction. The court found that neither the Commission nor MDNR had rendered a final decision subject to judicial review. Rather, the court found that the EPA was the final arbiter of whether a particular waterbody is impaired, and that while the EPA may have rendered a final decision with respect to the 1998 list of impaired waters, that agency‘s actions were beyond the purview of the court.
II. Standard of Review
A court‘s authority to adjudicate a controversy is based on three essential elements; the court must have jurisdiction of the subject matter, jurisdiction of the res or the parties, and jurisdiction to render the particular judgment in the particular case. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (banc 1941). Subject-matter jurisdiction concerns “the nature of the cause of action or the relief sought” and exists only when the court “has the right to proceed to determine the controversy or question in issue between the parties, or grant the relief prayed.” State Tax Com‘n v. Administrative Hearing Com‘n, 641 S.W.2d 69, 72 (Mo. banc 1982) quoting Cantrell v. City of Caruth-
Dismissal for lack of subject-matter jurisdiction is proper whenever it appears, by suggestion of the parties or otherwise, that the court is without jurisdiction. Rule 55.27(g)(3); Lederer v. Director of Division of Aging, 865 S.W.2d 682, 684 (Mo. App. 1993); Beth Hamedrosh Hagodol Cemetery Ass‘n v. Levy, 923 S.W.2d 439, 442 (Mo. App. 1996); James v. Poppa, 85 S.W.3d 8, 9 (Mo. banc 2002). The quantum of proof is not high; it must appear by the preponderance of the evidence that the court is without jurisdiction. James, 85 S.W.3d at 9. Generally, the decision to dismiss for lack for subject-matter jurisdiction is a question of fact left to the sound discretion of the trial court, and it will not be reversed on appeal absent an abuse of that discretion. Golden Rule Insurance Company v. Missouri Department of Insurance, 56 S.W.3d 471, 474 (Mo. App. 2001); James, 85 S.W.3d at 9. However, where, as here, the facts are uncontested, a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo. B.C. National Banks v. Potts, 30 S.W.3d 220, 221 (Mo. App. 2000). This Court is primarily concerned with the correctness of the result, not the route taken by the trial court to reach it; the trial court‘s judgment will be affirmed if it is correct on any ground supported by the record, regardless of whether the trial court relied on that ground. Corrigan v. Armstrong, Teasdale, Schlafly, Davis & Dicus, 824 S.W.2d 92, 94 (Mo. App. 1992); Lough by Lough v. Rolla Women‘s Clinic, Inc., 866 S.W.2d 851, 852 (Mo. banc 1993); Felling v. Giles, 47 S.W.3d 390, 393 (Mo. App. 2001).
III. Analysis
MAPA provides that the power of the courts of this State to render declaratory judgments shall extend to declaratory judgments challenging the validity of a rule or the threatened application of such a rule.
MAPA defines a “rule,” as at issue in this case, as
each agency statement of general applicability that implements, interprets, or prescribes law or policy, ... [subject to certain exceptions]
Here, the State has merely conducted an inventory of the waters in the state and
compiled a list of those waters that fail to meet applicable water quality standards. A list of Missouri‘s impaired waters does not establish any “standard of conduct” that has the “force of law.” The list does not command the appellants to do anything or to refrain from doing anything; no legal rights or obligations are created. By its definition, a rule must be of “general applicability.”
Such is not the case here. The list will not be used or applied to the appellants in any future proceeding to determine whether or not they have violated a norm embodied in said list. Rather, the list identifies the waters in the state that are impaired and is submitted to the federal government for review and approval or disapproval. The mere nomination of these waters has no effect on the appellants’ rights.
Consistent with these scholarly definitions, this Court, in Baugus, clarified MAPA‘s definition of a rule, noting:
Not every generally applicable statement or “announcement” of intent by a state agency is a rule. Implicit in the concept of the word “rule” is that the agency declaration has a potential, however slight, of impacting the substantive or procedural rights of some member of the public.
Baugus v. Director of Revenue, 878 S.W.2d 39, 42 (Mo. banc 1994) citing Bonfield, supra sec. 3.3.1.20
mentation plan is put into effect through further permit restrictions or other regulations. TMDLs are developed and implemented through future regulations. The appellants have prophesied that these future regulations would adversely impact them, but such presumptuous pleading is pure speculation that must be rejected. No study has occurred and no regulation has been proposed.
Under Baugus, an agency declaration cannot constitute a rule unless it has a potential impact on the rights of some member of the public. Here, the appellants can point to no potential impact of the Rivers’ nomination. Rather than identifying the potential impact of a rule, as Baugus requires, the appellants prophesy the impact of a potential rule. But there is a world of difference between an agency declaration that, in and of itself, has the potential, even slightly, to impact one‘s rights and an agency declaration that could only impact one‘s rights if further regulations would someday occur. Again, Baugus defines a rule as an agency declaration with the potential to impact rights; yet, the appellants point to an agency declaration that could only impact their rights if certain later regulations would occur.
Of course, if the State did, after due study, propose regulations impacting the appellants, they would enjoy the full panoply of rights guaranteed by our statutes to those that choose to contest such regulations. But the appellants are discontented with this later “bite at the apple.” They instead hope to derail governmental consideration of whether an apple tree should even be planted. This the law does not allow.
An examination of the general principles underlying declaratory judgments also supports dismissal of the appellants’ action. A declaratory judgment is not a general panacea for all real and imaginary legal ills. Harris v. State Bank & Trust Company of Wellston, 484 S.W.2d 177, 178 (Mo. 1972); City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, 413 (1942). It is not available to adjudicate hypothetical or speculative situations that may never come to pass. Farm Bureau Town and Country Insurance Company of Missouri v. Angoff, 909 S.W.2d 348, 352 (Mo. banc 1995); State ex rel Nixon v. American Tobacco Company, Inc., 34 S.W.3d 122, 128 (Mo. banc 2000); see also Local Union 1287 v. Kansas City Area Transportation Authority, 848 S.W.2d 462, 464 (Mo. banc 1993) (noting reasons courts decline to render hypothetical judgments and opinion). To grant a declaratory judgment, the court must be presented with:
(1) a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally protectable interest at stake, “consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief;” (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law. Northgate Apartments, L.P. v. City of North Kansas City, 45 S.W.3d 475, 479 (Mo. App. 2001); see also Missouri Health Care Association v. Attorney General of the State of Missouri, 953 S.W.2d 617, 620 (Mo. banc 1997).
A declaratory judgment should have a “conclusive effect and should lay to rest the parties’ controversy.” Jones v. Carnahan, 965 S.W.2d 209, 214 (Mo. App. 1998); Peters v. Board of Education of Reorganized School District No. 5 of St. Charles County, 506 S.W.2d 429, 431 (Mo. 1974). A declaratory judgment must “declare a fixed right and accomplish a useful purpose.” Local Union 1287, 848 S.W.2d
Moreover, the authority of the courts of this State to render declaratory judgments must be used and operate within the limits of the constitutional powers and duties of the courts. City of Joplin, 161 S.W.2d at 412. One such limit is the traditional doctrine of ripeness, which, when applied in this case, also commands dismissal of the appellants’ action. A court cannot render a declaratory judgment unless the petition presents a controversy ripe for judicial determination. See Missouri Health Care, 953 S.W.2d at 620. In the context of administrative agency action, the ripeness doctrine allows a court to “apply a pragmatic test to determine whether the agency action is sufficiently binding and sufficiently clear in scope and implications to be susceptible to judicial evaluation in the form in which it is presented.” Davis & Pierce, supra sec. 15.1, at 306. The basic rationale of the ripeness doctrine is to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judi-
cial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148-9, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (overruled on other grounds).
Abbott is the seminal case in the modern era of ripeness law.25 See Davis & Pierce, supra sec. 15.12. The teachings of Abbott have become deeply entrenched, with courts applying the two-fold inquiry set forth in that case to determine ripeness in a variety of contexts. Id. The test set forth in Abbott “has proven to be equally effective in determining the ripeness of challenges to the validity of state and federal statutes, agency rules, and a wide variety of less formal agency pronouncements.” Id. In Missouri, the ripeness doctrine is much the same as stated in Abbott. State ex rel. Kan. Power & Light v. PSC, 770 S.W.2d 740, 742 (Mo. App. 1989). The teachings of Abbott guide this Court‘s decision today, much as they have previously. See Missouri Health Care Association v. Attorney General of the State of Missouri, 953 S.W.2d 617 (Mo. banc 1997); see also, e.g., Buechner v. Bond, 650 S.W.2d 611, 614 (Mo. banc 1983) (“In order that a controversy be ripe for adjudication a ‘sufficient immediacy’ must be established. Ripeness does not exist when the question rests solely on a probability that an event will occur.“); Ports Petroleum Co., Inc. of Ohio v. Nixon, 37 S.W.3d 237, 241 (Mo. banc 2001) (“A ‘ripe controversy’ is one of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.“).
Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and signifi-
cant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstances, neither of which appears here.
387 U.S. at 152, 87 S.Ct. 1507.27
The Supreme Court applied the teachings of Abbott in Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), and found that the dispute was not ripe for court review. In that case, the Sierra Club challenged the lawfulness of a federal management plan for the Wayne National Forest, which had been developed by the United States Forest Service, pursuant to the National Forest Management Act of 1976. The Sierra Club claimed that the plan permitted too much logging and too much clearcutting. Although the plan made logging in the forest more likely, before the Forest Service could permit logging, it had to: (a) propose a particular site and specific harvesting method, (b) ensure that the project was consistent with the overall plan, (c) provide affected parties with notice and an opportunity to be heard, (d) conduct an environmental analysis of the project, and (e) make a final decision to permit logging, which decision affected persons could challenge through administrative avenues and in court.
The Court first found that withholding court review at the present time would not cause the parties significant hardship. The provisions of the plan did not “create adverse effects of a strictly legal kind, that is, effects of a sort that traditionally would have qualified as harm.” Id. at 733. As explained by the Court, the plan‘s provisions “do not command anyone to do anything or to refrain from doing anything; ... they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations.” Id. at 733. The Court also found that the plan did not presently inflict significant practical harm upon the interest of the Sierra Club. The Sierra Club had not shown any way in which the plan could presently force the Sierra Club to modify its behavior to avoid future adverse consequences. Id. at 734. And, given the numerous steps and procedural requirements the Forest Service had to observe before it permitted logging, the Court found that the Sierra Club did not need to bring its challenge at the present time, but would have ample opportunity to bring its challenge at a later time when harm was “more imminent and more certain.” Id. at 734.
In addition to finding that immediate review could hinder the agency‘s efforts to refine its policies, the Court also found courts would benefit from further factual development. The Court reasoned that immediate review of the Sierra Club‘s claims would:
require time-consuming judicial consideration of the details of an elaborate, technically based plan, which predicts consequences that may affect many different parcels of land in a variety of ways, and which effects themselves may change over time. That review would have to take place without benefit of the focus that particular logging proposals could provide.... [D]epending upon the agency‘s future action to revise the Plan or modify the expected methods of implementation, review now may turn out to have been unnecessary.
In accord with these teachings of the Supreme Court, the federal courts have already rejected appellant Missouri Soybean Association‘s (MSA) challenge to the EPA‘s approval of Missouri‘s 303(d) list for 1998. Missouri Soybean Association v. EPA, 289 F.3d 509 (8th Cir. 2002). MSA claimed the EPA should have disapproved Missouri‘s list because some of the listed waters, including the Rivers, lacked documentation of pollutants in order to be listed as impaired. The harms MSA alleged that would result from the premature listing are identical to many of the claims that the appellants alleged in the present action. See id. at 511.
Because MSA had not shown that the EPA‘s approval affected MSA‘s members in any concrete way, the Eighth Circuit held that the suit was not ripe for adjudication and should be dismissed. The court reasoned that:
MSA‘s complaint focuses on potential harm to its members resulting from stricter controls of the use of the challenged waters. More stringent controls on water use, however, will not occur until after TMDLs are developed and implemented. Even then, it remains un-
certain whether TMDL development or regulatory implementation will adversely impact MSA‘s members.
Id. at 512. Concluding, the court found that “until objectionable TMDLs are developed and implemented, MSA‘s claims of harm are too remote to be anything other than speculative and are not ripe for judicial resolution.” Id. at 513.
Clearly, if the challenge to the federal government‘s approval of the list of impaired waters is not ripe for adjudication, so too must the challenge to the State‘s earlier nomination of the waters be unripe. Neither the law nor our rivers would be clarified by inconsistent holdings. In the present case, the Commission merely listed waters that failed to meet applicable water quality standards. This list was then submitted to the EPA for review and approval or disapproval. Even if the federal government‘s approval of the waters, including the Rivers, on the 303(d) list is viewed as the inevitable consequence of the Commission‘s nomination, this merely triggers a duty by the State to study comprehensively the waters’ pollutants and then to ultimately propose limits of such pollutants. The State‘s impaired waters list requires no change in the appellants’ conduct. It does not command them to do anything, nor to refrain from doing anything. As explained earlier, no rights or obligations have been created. And, with nothing to comply with, there are no possible penalties for noncompliance. There are many steps remaining before the appellants may be required to alter their conduct. As explained earlier, controls to decrease water pollution will not come into play, if at all, until after TMDLs are developed and implemented. At this point in time, there is no way of knowing what these controls will be. The controls could affect different parties in a variety of different ways—if at all. Review now, based on generalities and speculation, would require a crystal ball or, at least, a lively imagination. Review should occur only when claims of harm are “more imminent and more certain” and the effects of the regulatory process to control water pollution are felt in a concrete way.
In conclusion, because the State‘s 303(d) list for 1998 is not a rule and the inclusion of the Rivers not rulemaking, and because the controversy cannot be resolved by declaratory judgment and is not ripe for adjudication, the judgment of dismissal is affirmed. However, because the circuit court lacked subject-matter jurisdiction, and because the controversy is not ripe for review, the judgment of dismissal is modified to one without prejudice. Rule 84.14; see also Parmer v. Bean, 636 S.W.2d 691, 694 (Mo. App. 1982); Brinson v. Whittico, 793 S.W.2d 632, 633 (Mo. App. 1990). The appellants are free to again seek the court‘s intervention if any regulation is proposed. But because this challenge to yet-to-be-proposed regulations is premature, appellants are urged to sheath their swords until, after a lengthy study, regulations impacting them are proposed. Then, and only then, should appellants seek to slay the regulatory dragon that they have presently conjured out of thin air.
The judgment, as modified, is affirmed.
WHITE, WOLFF, LAURA DENVIR STITH and TEITELMAN, JJ., concur.
LIMBAUGH, C.J., dissents in separate opinion filed; BENTON, J., concurs in opinion of LIMBAUGH, C.J.
PRICE, J., not participating.
STEPHEN N. LIMBAUGH, JR., Chief Justice, dissenting.
I respectfully dissent. I would hold that the 1998-303(d) list is a rule under the
I.
Second, a review of the substantive and procedural aspects of the Missouri Clean Water Law demonstrates that respondents promulgated the 1998-303(d) list with the intent of “prescribing” and “implementing” governmental policy. As noted by the ma-
jority, the Missouri Clean Water Law,
[W]hereas this state must possess the authority required of states in the [federal Clean Water Act] if it is to retain control of its water pollution control programs, it is hereby declared to be the public policy of this state to conserve the waters of the state and to protect, maintain and improve the quality thereof ... to provide for the prevention, abatement and control of new and existing water pollution; and to cooperate with other agencies of the state ... the federal government and any other persons in carrying out these objectives.
All agree that the 303(d) list was developed in response to the requirements imposed upon the states under the federal Clean Water Act,
That the promulgation of the 1998-303(d) list “prescribes” and “implements” the “general[ly] applicabl[e]” policy of this State with regard to the quality of Missouri‘s waters in satisfaction of the
Implicit in the concept of the word “rule” is that the agency declaration has a potential, however slight, of impacting the substantive or procedural rights of some member of the public. Rulemaking, by its nature, involves an agency statement that affects the rights of individuals in the abstract.
Id. at 42 (citing BONFIELD, STATE ADMINISTRATIVE RULE MAKING, Sec. 3.3.1). (Emphasis added.) In addressing the Baugus requirement, appellants maintain that inclusion of the Missouri and Mississippi Rivers on the list may potentially affect their economic interests because of the likelihood of additional restrictions on their farmlands abutting the Rivers. Specifically, the appellant associations and their members argue that as a result of the 1998-303(d) list, the State must develop and implement TMDLs for the Rivers that will necessitate: changes in land management practices; limitation on sales and use of fertilizers, pesticides, and herbicides; increased costs in satisfying new pollution standards; increased costs of water treatment; and limitations on raw materials that can be used in production or manufacturing. Although respondents discount these claims of potential harms as “hyperbole” and the majority characterizes them as “speculative,” it cannot be denied that if the Rivers are included on the approved 303(d) list, TMDLs must be developed, and that in order to comply with the TMDLs, land use regulation must follow—all as required under the
Clean Water Act. Thus, the potential for impacting the rights of association members is more than sufficient to meet the Baugus requirement and further confirms that promulgation of the 303(d) list is the promulgation of a rule.
As I see it, the disconnect between my position and that of the majority is my willingness and the majority‘s unwillingness to acknowledge that the federal-state regulatory scheme contemplates a series of discrete rulemaking efforts, not a single process that eventually will culminate in final or ultimate land use regulations. Of course, the 303(d) list is not a final or ultimate land use regulation; it is instead a threshold determination—a precursor rule on which subsequent rules and regulations may be based. But it is no less a rule. Though the majority holds there is no “final agency action,” there is indeed a “final agency action” as to the 303(d) list. Moreover, it is an action that has a real and immediate harm to the appellants in this case—an action that itself constitutes a “potential impact” on the substantive rights of appellants by subjecting them to further rulemaking efforts in the establishment of TMDLs and the eventuality of land use regulations.
Alternatively, the majority holds that this case is not yet ripe for review. Initially, it must be noted that the issue of ripeness was not raised, briefed or argued by either party. Appellants, therefore, have not had the opportunity to respond to the majority‘s novel reasoning on this issue. In any event, the majority cites no Missouri cases addressing ripeness in the context of a challenge to the validity of a rule under
Any person who is or may be aggrieved by any rule promulgated by a state agency shall have standing to challenge any rule promulgated by a state agency and may bring such an action pursuant to the provisions of
section 536.050 .
(Emphasis added.) Although this provision is couched in terms of standing, rather than ripeness, in Missouri, the doctrine of standing encompasses the requirement of ripeness. See Missouri Health Care Ass‘n v. Attorney General of the State of Mo., 953 S.W.2d 617, 620 (Mo. banc 1997). Therefore, a party who has established sufficient standing to bring a declaratory judgment action has necessarily succeeded in demonstrating that the case is also ripe. See id. To establish standing under
II.
Having determined that promulgation of the 303(d) list constitutes rulemaking under the MAPA, I would address the merits of the case to determine whether there was compliance with the MAPA‘s rulemaking procedure.1 Although the circuit court did not rule on this issue, the facts are
undisputed, and this Court is obliged to dispose of the case. Rule 84.14.
The facts, some of which were omitted by the majority, show the following: Prior to adoption of the 303(d) list, respondent MDNR published four public notices specifying the bodies of water to be included on the list and soliciting comments. In none of these notices did MDNR indicate that it was considering the Missouri and Mississippi Rivers for inclusion on the final list to be submitted to the EPA. The first notice was published in January 1998 and contained no reference to the Rivers. In the second notice published in March 1998, the MDNR listed the Rivers as waters that the Sierra Club, but not the agency, had recommended for inclusion. No mention of the Rivers was made in the notice issued in May 1998. Then, in August 1998, a final notice was issued that would eventually be submitted to the Commission and in which the MDNR explicitly stated that the Rivers were not being listed “because there are no water quality contaminant violations.” Nevertheless, in the September 23, 1998, meeting, the Commission approved a final 303(d) list that included the Rivers.
No rule shall hereafter be proposed, adopted, amended or rescinded by any state agency unless such agency shall first file with the secretary of state a notice of proposed rulemaking and a subsequent final order of rulemaking, both of which shall be published in the Missouri Register by the secretary of state as soon as practicable after the filing thereof in that office; ....
III.
For these reasons, I would reverse and remand the case for entry of judgment in favor of appellants.
Charles GREWELL, et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., INC., et al., Respondents.
No. SC 84896.
Supreme Court of Missouri, En Banc.
April 22, 2003.