SOUTHERN BLASTING SERVICES, INCORPORATED; Piedmont Drilling & Blasting, Incorporated, Plaintiffs-Appellants, v. WILKES COUNTY, NORTH CAROLINA, a body politic; Kevin D. Bounds, Wilkes County Fire Marshal, Defendants-Appellees.
No. 01-2098.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 27, 2002. Decided April 29, 2002.
Once again, Booth-El‘s claim of prejudice is purely speculative. Defense counsel made a tactical decision to preserve the jury that had already been selected. There is no evidence that counsel‘s actions were unreasonable or resulted in actual prejudice, as required by Strickland. Thus, the district court properly concluded that the post-conviction court‘s conclusions were a reasonable application of clearly established federal law. See Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).
VII.
Booth-El‘s case has become perhaps a textbook example of a protracted capital proceeding. Throughout that proceeding, the Maryland courts have not only been attentive to his rights, but have bent over backwards to protect them. Perforce there has been no contravention or unreasonable application of clearly established federal law. For the foregoing reasons, the judgment of the district court is affirmed in part, reversed in part, and re-manded with directions to dismiss the petition.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Before WILKINSON, Chief Judge, and WILLIAMS and GREGORY, Circuit Judges.
Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge GREGORY joined.
OPINION
WILKINSON, Chief Judge.
Plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling & Blasting, Inc.
I.
During the summer of 1997, plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling & Blasting, Inc. set up operations in Wilkes County, North Carolina. Southern Blasting purchases HMTA Class 1 explosives and has them hauled to its magazine site in Wilkes County, where they are stored until sold to industrial customers. Southern Blasting has also expressed an interest in manufacturing explosives at its site, but it has not yet done so. Piedmont Drilling conducts blasting operations by drilling holes in rock formations, loading the holes with explosives, and detonating the explosives to loosen or remove the rock.
Shortly after plaintiffs established their explosives businesses in the County, citizens began to voice objections to their operations. On September 16, 1997, approximately 150 County residents attended the meeting of the Wilkes County Board of Commissioners to express their views. And the Board was presented with a petition containing 878 signatures opposing explosives operations in the County. Due to safety concerns and this public outcry, the Board voted unanimously to have a committee draft ordinances that would establish both a permit system and a comprehensive set of regulations for the operation of explosives businesses.
On June 16, 1998, after several months of work by the appointed committee, the Board unanimously adopted the Wilkes County Explosive Materials Permitting Ordinance. The Permitting Ordinance required applicants to obtain a permit from the County Fire Marshal prior to possessing, storing, selling, transporting, or other-wise dealing in explosive materials in Wilkes County. In addition, the Permitting Ordinance provided that only businesses operating in the County on the day the ordinance was adopted could apply for a permit. And the ordinance gave ultimate decision-making authority to the Fire Marshal. See Permitting Ordinance art. VI. However, the application process included a public hearing and consultation with the Federal Bureau of Alcohol, Tobacco & Firearms (“BATF“), the County Planning Department, the County Health Department, the County Building Inspections Department, and the Board. See Permitting Ordinance art. VI(E). Further, the Permitting Ordinance specifically excluded ammunition or firearms dealers licensed under federal or state law from its requirements. See Permitting Ordinance art. V, VI(A).
On August 4, 1998, the Board also unanimously enacted the Wilkes County Explosive Materials Ordinance (the “Regulatory Ordinance“), which became effective on December 8, 1998 after the necessary approval was obtained from the North Carolina Building Code Council. This ordinance addressed the storage and use of explosives in the County. Specifically, the Regulatory Ordinance restricted the manufacture of explosives, required installation of security measures at storage locations, set limits on the quantity of stored explo-
Plaintiffs did not apply for a permit under the Permitting Ordinance. Instead, plaintiffs initiated this action, alleging that the Permitting and Regulatory Ordinances were preempted by federal law, were in-valid under North Carolina law, and violated their due process rights. Plaintiffs sought injunctive relief to prevent the en-forcement of the ordinances. The district court concluded that both the Permitting and Regulatory Ordinances were valid and granted summary judgment to the County and the Fire Marshal. See S. Blasting Servs., Inc. v. Wilkes County, 162 F.Supp.2d 455 (W.D.N.C.2001).
The district court held that plaintiffs’ preemption claim failed because Congress did not intend to “occupy the field” of explosives regulation and plaintiffs had failed to show a “direct and positive con-flict” between the ordinances and any federal law. Id. at 462-63. The court also concluded that the ordinances and their enabling statute,
The district court next rejected plaintiffs’ substantive due process claim, finding that the ordinances were a valid exercise of the County‘s police power and were rationally related to a legitimate govern-mental purpose. Id. at 459-60. Finally, because plaintiffs had not even applied for a permit, the district court concluded that they lacked standing to assert a procedural due process challenge to the ordinances. Id. at 460-61. Plaintiffs appeal.
II.
A.
We begin by considering plaintiffs’ preemption claim. It is well-established that the Supremacy Clause “invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)). The Supreme Court has repeatedly held that “state laws can be preempted by federal regulations as well as by federal statutes” and that “for the purposes of the Suprema-cy Clause, the constitutionality of local or-dinances is analyzed in the same way as that of statewide laws.” Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371 (citing cases).
Yet “[c]onsideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). This presumption is strongest when Congress legislates “in a field which the States have traditionally occupied.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation omitted). States have long possessed primary re-sponsibility in our federal system for pro-tecting the health and safety of their citi-zens. Id. at 475, 485, 116 S.Ct. 2240. Indeed, courts “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id. at 485, 116 S.Ct. 2240 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).
Nevertheless, there are several ways in which federal law may supersede state or local law. First, Congress may expressly preempt such laws. See, e.g., Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371. Second, in the absence of express preemptive language, Congress’ intent to preempt state law may be implied when “federal law so thoroughly occupies a legis-lative field as to make reasonable the in-ference that Congress left no room for the States to supplement it.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (inter-nal quotations omitted). Finally, preemp-tion will also be implied if state or local law “actually conflicts with federal law.” Such a conflict occurs “when compliance with both federal and state regulations is a physical impossibility, or when state law stands as an obstacle to the accomplish-ment and execution of the full purposes and objectives of Congress.” Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371 (in-ternal quotations omitted).
B.
Plaintiffs claim that federal law regulating the manufacture, distribution, and storage of explosive materials preempts the County‘s Permitting and Regulatory Ordinances. They maintain that the County ordinances are superseded because of the exhaustive nature of federal law in the explosives field, and because various provisions of the ordinances are in direct and positive conflict with federal regulations.
The federal law governing explosive materials is codified at
No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.
This statutory language makes clear that Congress did not intend to occupy the field of licensing and regulating explosives operations. In preemption analysis, “[t]he purpose of Congress is the ultimate touch-stone.” Retail Clerks Int‘l Ass‘n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963). Here Congress has stated in the clearest of terms that it was not preempting local efforts to regulate the explosives industry, absent a direct and positive conflict with the federal standards. In fact, as the dis-trict court recognized, ”
Congress’ desire not to preempt state and local efforts to regulate explosive ma-terials is unsurprising given the fact that conditions in states and localities vary greatly. For example, local governments may determine that the use or storage of explosives is particularly dangerous due to population density or the proximity of ex-plosives to schools, nursing homes, or resi-dential areas. Congress did not intend to preempt democratic responses to such lo-cal conditions and concerns. Instead, by allowing state and federal regulations to coexist, Congress was fostering the values of federalism and recognizing the “historic primacy of state regulation of matters of health and safety.” Medtronic, 518 U.S. at 485, 116 S.Ct. 2240. Plaintiffs on the other hand, ask this court to cut the demo-cratic process short by declaring the Coun-ty ordinances void and unenforceable.
We are similarly unpersuaded by plain-tiffs’ argument that the County ordinances are invalid because they are in “direct and positive conflict” with the federal law gov-erning explosive materials. The “direct and positive conflict” language in
To support their argument that a direct conflict is present in this case, plaintiffs point to numerous provisions of the Coun-ty Permitting and Regulatory Ordinances that impose more stringent requirements than those contained in the federal regula-tions. For example, unlike the federal regulations, the Permitting Ordinance re-quires a permit applicant to submit a de-tailed history of all past and present oper-ations, detailed written information on the applicant‘s financial ability, and an estimat-ed schedule of all activities and operations the applicant plans to conduct. See Per-mitting Ordinance art. VI(C).
However, a state or locality‘s imposition of additional requirements above a federal minimum is unlikely to create a direct and positive conflict with federal law. Rather, a conflict is more likely to occur when a state or locality provides that compliance with a federal standard is not mandated, or when compliance with federal law actu-
The BATF, which is authorized to issue regulations to administer the federal ex-plosives laws, has stated that a federal license to import, manufacture, or deal in explosive materials does not exempt a li-censee from state and local requirements. Indeed, a federal license “confers no right or privilege to conduct business or opera-tions, including storage, contrary to State or other law.”
Moreover, BATF actually examined the County‘s Permitting and Regulatory Ordi-nances and stated in a letter that “while the ordinances contain some provisions which are more stringent than those con-tained in [
We also reject plaintiffs’ argument that the ordinances cannot be reconciled with federal law because the Regulatory Ordinance prevents licensed companies from expanding, and because the Permit-ting Ordinance prevents new companies from establishing explosives operations in the County. See Regulatory Ordinance art. VI(C)(7); Permitting Ordinance art. VI(J). Nothing in the federal explosives statute or regulations prevents localities from regulating or even limiting the num-ber of explosives operations in their midst. The fact that federal law regulates the operations of explosives companies does not imply that Congress intended to stop a locality from going further to reduce their risks. This is especially true in light of the strong anti-preemption language in
III.
We next turn to plaintiffs’ claim that the County ordinances and their enabling stat-ute are invalid under the North Carolina Constitution. The Permitting and Regula-tory Ordinances were enacted pursuant to
We note at the outset that a federal court should be exceedingly cau-tious about invalidating a state statute or a local ordinance under a state constitution. Like most states, North Carolina “recog-nizes a presumption in favor of the consti-tutionality of a [state] statute.” Gardner v. City of Reidsville, 269 N.C. 581, 153 S.E.2d 139, 150 (N.C.1967). In order for an act of the General Assembly to be declared unconstitutional under the North Carolina Constitution, “it must be plainly and clearly the case. If there is any rea-sonable doubt, it will be resolved in favor of the lawful exercise of [the General As-sembly‘s] powers.” E.g., Town of Emer-ald Isle v. State, 320 N.C. 640, 360 S.E.2d 756, 761 (N.C.1987) (internal quotation omitted).
Article II, § 24 of the North Carolina Constitution prohibits the General Assem-bly from promulgating local acts relating to various specified topics. Article II, § 24 states:
(1) Prohibited subjects. The General Assembly shall not enact any local, pri-vate, or special act or resolution:
(a) Relating to health, sanitation, and the abatement of nuisances; . . .
(j) Regulating labor, trade, mining, or manufacturing; . . .
(4) General laws. The General Assem-bly may enact general laws regulating the matters set out in this Section.
The North Carolina Supreme Court has defined a local act as a law “applying to fewer than all counties, in which the affect-ed counties do not rationally differ from the excepted counties in relation to the purpose of the act.” Smith v. County of Mecklenburg, 280 N.C. 497, 187 S.E.2d 67, 73 (N.C.1972).
We agree with the district court that ”
Furthermore, the Wilkes County Permitting and Regulatory Ordinances do not violate the North Carolina Constitu-tion. As the district court noted, “Article II, § 24 does not mention or address the regulatory authority of counties or other local governments.” Id. And Article II, § 24 in no way prohibits the General As-sembly from empowering counties to act in the specified fields. In fact, the primary purposes of Article II, § 24 were to “free the General Assembly” from the “petty detail” of enacting local legislation, to en-able the General Assembly “to devote more time and attention to general legisla-tion of statewide interest and concern,” and thereby to “strengthen local self-gov-ernment” by delegating local matters to local authorities. High Point Surplus Co. v. Pleasants, 264 N.C. 650, 142 S.E.2d 697, 702 (N.C.1965).3 Article II, § 24 was meant to promote just the type of interac-tion that has occurred here between the General Assembly and a local government, which is concededly more familiar with local conditions.
IV.
Finally, we address plaintiffs’ due pro-cess claim. Plaintiffs contend that the County violated their due process rights by granting the County Fire Marshal broad discretionary authority under the ordinances, especially the Permitting Ordi-nance. It is not entirely clear, however, whether plaintiffs are presenting this ar-gument as a substantive or procedural due
A.
In order to state a substantive due process claim, plaintiffs must demon-strate: “(1) that they had property or a property interest; (2) that the state de-prived them of this property or property interest; and (3) that the state‘s action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.” Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 827 (4th Cir.1995). Substantive due pro-cess protections “run only to state action so arbitrary and irrational, so unjustified by any circumstance or governmental in-terest, as to be literally incapable of avoid-ance by any pre-deprivation procedural protections or of adequate rectification by any post deprivation state remedies.” Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.1991).
Even if plaintiffs could prove that they had a property interest and that the County somehow deprived them of that interest by making it more difficult to operate an explosives business, plaintiffs’ substantive due process claim fails under the third prong of the Sylvia test. The County‘s actions obviously did not fall be-yond the outer limits of legitimate gov-ernmental action. Instead, the County‘s actions were rationally related to a legiti-mate governmental purpose. Therefore, plaintiffs “cannot demonstrate that the County‘s actions were arbitrary or irra-tional as required by Sylvia and Rucker.” Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 440 (4th Cir.2002).
First, we need look no further than the text of the Permitting and Regu-latory Ordinances to discover the County‘s legitimate governmental interest. The County‘s purpose in enacting the ordi-nances was “protecting the public and safeguarding the health and welfare of the citizens of the County.” Permitting Ordi-nance art. III; Regulatory Ordinance art. III. The Board found “that the location, possession, storage, use, handling, manu-facture, sale, and transportation of certain explosive materials, together with the dan-ger of fire, injury, and theft in connection therewith, constitute[d] a potential hazard to the health, safety, and welfare of the citizens of the County unless carefully reg-ulated, controlled, and monitored.” Per-mitting Ordinance art. III; Regulatory Ordinance art. III. As the district court noted, “[p]laintiffs’ suggestion that their explosives operations pose no threat to the public is absurd“—plaintiffs deal with HMTA Class 1 explosive materials. S. Blasting, 162 F.Supp.2d at 460. We agree with that court that “it would be a truly strange decision for a court to find that blasting operations and the storage of in-herently hazardous materials do not pres-ent matters of legitimate concern.” Id. Protecting the “health, safety, and well-being of the County‘s citizens are basic governmental functions. And this court will not substitute its policy judgments as to the exercise of the police power for those of a democratically elected local gov-ernment.” Tri-County, 281 F.3d at 439.
Second, the Permitting and Regulatory Ordinances are rationally related to the aforementioned goals of minimizing the risks of theft, fire, and explosion associated with blasting operations. The ordinances “tighten security at explosives storage fa-cilities, limit the pre-mixing and storage of volatile materials, and require information on the size, location, and duration of any blasting operations.” S. Blasting, 162 F.Supp.2d at 460. Further, the County could reasonably have believed that the
B.
Plaintiffs’ complaint regarding the Fire Marshal‘s discretionary powers under the ordinances also fails as a proce-dural due process claim. First, plaintiffs lack standing to bring such a challenge. In order to have standing, plaintiffs must show that: (1) they have suffered an injury in fact; (2) that the injury is fairly tracea-ble to the challenged action of the defen-dant; and (3) that the injury is likely to be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). And in order to satisfy the injury-in-fact requirement, plaintiffs must demon-strate that they “suffer[ed] an invasion of a legally protected interest which is concrete and particularized, as well as actual or imminent.” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir.2000) (en banc) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Here, plaintiffs have never even applied for a permit, much less been de-nied one. Therefore, they cannot demon-strate an actual injury from the County granting the Fire Marshal decision-making authority under the Permitting Ordinance. See Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 488-89 (7th Cir. 1988) (finding that a plaintiff lacked stand-ing to bring a procedural due process chal-lenge to a local licensing scheme where plaintiff had never been threatened with revocation or suspension of its current li-cense).
Second, even if plaintiffs had standing, their procedural due process claim fails because the Permitting Ordi-nance does not grant unfettered discretion to the Fire Marshal. Instead, the ordi-nance provides ample process by establish-ing a set of procedures to ensure that permits cannot be denied or revoked ran-domly. For example, a permit applicant must submit a large volume of information, which is designed to assist the Fire Mar-shal in determining whether or not the proposed operation “will be conducted in a safe and responsible manner” in accor-dance with federal and state law and County ordinances. See Permitting Ordi-nance art. VI(C). Further, before a per-mit can be granted or denied, the Fire Marshal must consult with the BATF, the County Planning Department, the County Health Department, the County Building Inspections Department, and the County Board of Commissioners. See Permitting Ordinance art. VI(B), (E). In addition, there must be time set aside at a regularly scheduled Board meeting “for the purpose of hearing public comment, if any, on the operations and activities which the appli-cant proposes to conduct.” Permitting Or-dinance art. VI(E). Moreover, if the Fire Marshal ultimately determines that a per-mit must be denied, he must provide the applicant with a written explanation of the reasons for his decision.
V.
In sum, we find no impediment in feder-al or state law to Wilkes County‘s regula-tion of explosives operations. For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.