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Board of County Commissioners of Sumner County, Kansas v. Bremby

October 12, 2007

THE BOARD OF COUNTY COMMISSIONERS OF SUMNER COUNTY, KANSAS, TRI-COUNTY CONCERNED CITIZENS, INC., A KANSAS NOT FOR PROFIT CORPORATION, AND DALTON HOLLAND, AN INDIVIDUAL , APPELLANTS,
v.
HONORABLE RODERICK L. BREMBY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE KANSAS DEPT. OF HEALTH AND ENVIRONMENT, THE KANSAS DEPT. OF HEALTH AND ENVIRONMENT, AND WASTE CONNECTIONS OF KANSAS, INC., A KANSAS CORPORATION, APPELLEES.



Appeal from Shawnee District Court; TERRY L. BULLOCK, judge.

SYLLABUS BY THE COURT

1. Standing is a jurisdictional issue. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Similarly, whether a party has standing to sue is a question of law subject to unlimited review.

2. Standing is a question of whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his or her invocation of jurisdiction and to justify exercise of the court's remedial powers on his or her behalf. Standing to sue means a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.

3. Kansas law permits organizations to sue on behalf of their members if certain requirements have been met. However, when a petition for judicial review of an agency action is filed under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., the court must first look to the KJRA to determine whether the petitioners have standing. Therefore, whether petitioners meet the traditional test for standing becomes relevant only if they first meet the standing requirements of the KJRA.

4. In this case, where the petitioners had an opportunity to participate as a group and individually in the public hearing process preceding issuance of the permit at issue, they are entitled to standing as a "party" pursuant to K.S.A. 77-611(d).

5. Under the traditional three-part standing test, an association has standing to sue on behalf of its members 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 require participation of individual members.

The opinion of the court was delivered by: Caplinger, J.

Reversed and remanded.

Before CAPLINGER, P.J., ELLIOTT, J., and BUKATY, S.J.

This appeal is from the district court's dismissal of a petition for judicial review of an agency action for lack of standing. The Board of County Commissioners of Sumner County (the Board), Tri-County Concerned Citizens, Inc. (TCCCI) and Dalton Holland, collectively, "petitioners," challenged the issuance of a permit by the Kansas Department of Health and Environment (KDHE) to Waste Connections of Kansas, Inc. (Waste Connections) to construct a solid waste landfill in Harper County. Petitioners alleged the KDHE failed to collect data and determine the appropriateness of the site pursuant to Kansas law.

The district court dismissed the petition for lack of standing, finding none of the petitioners were parties to the agency proceedings under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA).

Factual and Procedural Background

In August 2002, Waste Connections applied to the KDHE for a permit to construct and operate a municipal solid waste landfill on a site in Harper County known as Plumb Thicket. In September 2002, the Board authorized a study by Terrane Resources to evaluate the site's suitability as a landfill. The Board submitted the results of the Terrane study, which discovered regulatory deficiencies in the site, to the KDHE in May 2003.

In April 2003, the KDHE held public hearings in Harper County, Kansas, regarding the proposed permit. These proceedings were not, however, conducted pursuant to K.S.A. 77-501 et seq.

Thereafter, members of TCCCI and other groups submitted comments on the pending permit. KDHE formally responded to the comments. In September 2005, KDHE granted Waste Connections a permit to ...


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