IN THE SUPREME COURT OF THE STATE OF DELAWARE
DELAWARE DEPARTMENT OF §
NATURAL RESOURCES AND §
ENVIRONMENTAL CONTROL, § No. 558, 2019
§
Appellee Below, § Court Below – Superior Court
Appellant, § of the State of Delaware
§
v. § C.A. Nos. N17A-03-006
§ N19A-04-006
FOOD & WATER WATCH, §
§
Appellant Below, §
Appellee. §
§
Submitted: November 10, 2020
Decided: February 3, 2021
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.
Upon appeal from the Superior Court. DISMISSED FOR LACK OF STANDING TO
APPEAL.
William J. Kassab, Esquire, Department of Justice, New Castle, Delaware; for Appellant
Delaware Department of Natural Resources and Environmental Control.
Kenneth T. Kristl, Esquire, Environmental & Natural Resources Law Clinic, Widener
University Delaware Law School, Wilmington, Delaware; for Respondent Food & Water
Watch.
MONTGOMERY-REEVES, Justice:
In this appeal, Appellant, Delaware Department of Natural Resources and
Environmental Control (“DNREC”), challenges the Superior Court’s holding that
Appellee, Food & Water Watch (“Watch”), had organizational standing to contest
Order No. 2016-W-0008 (the “Secretary’s Order”), which established a system to
regulate pollutants from Concentrated Animal Feeding Operations (“Feeding
Operations”). Specifically, DNREC argues that Watch did not have organizational
standing to challenge the Secretary’s Order because its representatives cannot
adequately establish injury in fact, causation, and redressability.
Watch responds that this action is moot. Watch argues that since DNREC
ultimately won on the merits and neither party appealed the merits decision, the issue
of standing is no longer justiciable because the action is not adversarial. Further,
even if this action is not moot, Watch argues that it had standing.
After reviewing the initial round of briefs, the Court requested supplemental
memoranda addressing a separate threshold question: whether DNREC has standing
to appeal under Hercules v. AIU Insurance Co.1 despite being the prevailing party.
DNREC argues that it has standing to appeal because the Superior Court’s standing
decision is a collateral adverse ruling. Watch argues that the standing decision is not
1
783 A.2d 1275 (Del. 2000).
1
a collateral adverse ruling because the decision cannot provide the basis for invoking
claim preclusion, issue preclusion, or the law of the case doctrine.
Having reviewed the briefs, the supplemental memoranda, and the record on
appeal, this Court dismisses this appeal for lack of standing to appeal. DNREC was
the prevailing party below; the Superior Court granted DNREC all of the relief it
requested; and the Superior Court’s standing decision does not meet the criteria for
a collateral adverse ruling. Accordingly, the standing decision did not render
DNREC an aggrieved party, and DNREC does not have standing to appeal.
Because this Court dismisses this appeal for lack of standing to appeal, this
opinion does not address the separate threshold questions of whether this case is
moot or whether Watch had organizational standing to challenge the Secretary’s
Order under 7 Del. C. § 6008.
I. Background
On March 30, 2016, DNREC and the Delaware Department of Agriculture
issued the Secretary’s Order, which allows Feeding Operations to apply for a general
permit authorizing them to discharge pollutants according to the permit’s limitations
and subject to certifications that permit holders complied with federal and state
regulations.2 To ensure that permit holders comply with the no-discharge effluent
limitation, the permit requires Feeding Operations to implement management
2
Opening Br. Ex. B.
2
practices that prevent pollutant discharges. The permit regulations further require
Feeding Operations to monitor, visually inspect, and keep records of inspections of
their management practices to ensure that the practices are functioning properly.3
On April 25, 2016, Watch appealed the Secretary’s Order to the Delaware
Environmental Appeals Board under 7 Del. C. § 6008,4 arguing that the Order
violates the Clean Water Act (33 U.S.C. §§ 1251-1387) and Delaware law because
the Order does not impose an additional “surface water monitoring” requirement on
permit holders.5 On April 22, 2016, Watch filed a motion for summary judgment
with the Appeals Board on the issue of whether failure to require mandatory “surface
water monitoring” violates federal and state law. In connection with its motion,
Watch submitted declarations from three members of the organization, Kathlyn
Phillips, Maria Payan, and Patty Lovera, to establish it had standing to pursue the
appeal.6
On October 18, 2016, DNREC responded to Watch’s motion and filed a cross-
motion for summary judgment, arguing that Watch’s representatives would not have
3
App. to Opening Br. 5-6, 12 (hereafter “A_”).
4
Section 6008(a) states, “Any person whose interest is substantially affected by any action
of the Secretary may appeal to the Environmental Appeals Board within 20 days after
receipt of the Secretary’s decision or publication of the decision.”
5
Opening Br. Ex. C.
6
See Food & Water Watch v. Del. Dep’t of Nat. Res. & Env’t Control, 2018 WL 4062112,
at *1-2 (Del. Super. Ct. Aug. 24, 2018).
3
standing to challenge the Secretary’s Order.7 On March 1, 2017, the Appeals Board
denied Watch’s motion for summary judgment in its entirety and granted DNREC’s
cross-motion for summary judgment on the basis that Watch failed to establish
standing to bring the appeal.8
Watch appealed the Appeals Board’s decision to the Delaware Superior
Court.9 On August 24, 2018, following briefing and oral argument, the Superior
Court reversed the Environmental Appeals Board’s decision on standing and
remanded the matter to the Board for resolution on the merits (the “Standing
Decision”).10
On September 7, 2018, DNREC sought certification of interlocutory appeal
to this Court.11 On September 24, 2018, the Superior Court denied DNREC’s
request for certification as untimely,12 and on December 11, 2018, this Court rejected
DNREC’s interlocutory appeal.13
On remand, Watch and DNREC stipulated that the remaining merits issues
were solely questions of law that should be resolved by the Superior Court on cross-
7
Id. at *2.
8
Id.
9
Id.
10
Id. at *7.
11
Food & Water Watch v. Del. Dep’t of Nat. Res. & Envt’l Control, 2018 WL 4613594, at
*1 (Del. Super. Ct. Sept. 24, 2018).
12
Id. at *1-2.
13
Del. Dep’t of Nat. Res. & Envt’l Control v. Food & Water Watch, 198 A.3d 179, 2018
WL 6505352, at *1 (Del. Dec. 11, 2018) (TABLE).
4
motions for summary judgment.14 On November 27, 2019, the Superior Court
granted DNREC’s motion for summary judgment on the merits (the “Merits
Decision”), holding that neither the Clean Water Act nor Delaware law requires
surface water monitoring.15 Watch did not appeal the Merits Decision.
On December 26, 2019, DNREC filed a notice of appeal, challenging the
Superior Court’s August 2018 Standing Decision.
II. Analysis16
Whether a party has standing to appeal is a question of law that this Court
reviews de novo.17
14
Food & Water Watch v. Del. Dep’t of Nat. Res. & Envt’l Control, 2019 WL 6481888, at
*1 (Del. Super. Ct. Nov. 27, 2019).
15
Id. at *1, *3.
16
DNREC argues that the Court must address mootness before standing to appeal. See
Opening Suppl. Mem. 2. The Court disagrees. Standing to appeal and mootness are both
threshold questions. When presented with multiple threshold questions, the Court has the
discretion to choose which question to answer first. See generally Sinochem Int’l Co. v.
Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to
choose among threshold grounds for denying audience to a case on the merits.’” (citing
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999); Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 100-01 n.3 (1998))). In this instance, the Court has determined
that whether DNREC has standing to appeal is logically antecedent to mootness.
17
See El Paso Pipeline GP Co. v. Brinckerhoff, 152 A.3d 1248, 1256 (Del. 2016)
(“Whether a party has standing is a question of law that it subject to de novo review.”
(citing Schoon v. Smith, 953 A.2d 196, 200 (Del. 2007))); Off. of the Comm’r, Del.
Alcoholic Beverage Control v. Appeals Comm’n, Del. Alcoholic Beverage Control, 116
A.3d 1221, 1226 (Del. 2015) (“We review questions of law, including whether a party has
standing, de novo.” (citing Broadmeadow Inv., LLC v. Del. Health Res. Bd., 56 A.3d 1057,
1059 (Del. 2012))).
5
In Hercules, this Court addressed whether a prevailing party had standing to
bring a cross-appeal.18 In addressing that question, the Court reaffirmed the
principle that “[s]tanding to cross-appeal . . . like standing to appeal, requires the
party seeking relief to have been aggrieved by the judgment.”19 Stated differently,
a party only has standing to appeal if that party was “aggrieved by the judgment”
being appealed.20 This requirement generally prevents a “prevailing party” from
appealing “a decision in its favor.”21
The Court recognized two circumstances, however, where a prevailing party
can establish standing to appeal a judgment in its favor.
First, a party is aggrieved by a favorable judgment, and
may appeal, if that party did not receive all of the relief
that was sought. Second, a prevailing party is aggrieved,
and may appeal from a judgment in its favor, if [that
judgment] includes a collateral adverse ruling that can
serve as a basis for the bars of res judicata, collateral
estoppel, or law of the case in the same or other litigation.22
Thus, despite prevailing below, DNREC is an aggrieved party that has standing to
bring a direct appeal if one of the Hercules exceptions applies.
18
783 A.2d at 1277.
19
Id. (emphasis added) (citing Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 334
(1980)).
20
Id.
21
Id.
22
Id. (citations omitted).
6
The first exception does not apply because the Superior Court dismissed
Watch’s claims on the merits, granting DNREC all of the relief that it requested.23
Therefore, DNREC only has standing to appeal if the Superior Court’s Standing
Decision is a collateral adverse ruling.
Under Hercules, a ruling is a collateral adverse ruling if it “can serve as a basis
for the bars of res judicata, collateral estoppel, or law of the case in the same or other
litigation.”24 DNREC’s sole argument in favor of this exception is that the Superior
Court’s Standing Decision can be used to invoke the law of the case doctrine in
subsequent phases of this litigation.25
“The ‘law of the case’ is established when a specific legal principle is applied
to an issue presented by facts which remain constant throughout . . . the same
litigation.”26 The law of the case doctrine “requires that issues already decided by
the same court should be adopted without relitigation[,] and ‘once a matter has been
addressed in a procedurally appropriate way by a court, it is generally held to be the
23
Food & Water Watch v. Del. Dep’t of Nat. Res. & Envtl. Control, 2019 WL 6481888, at
*1, *3 (Del. Super. Ct. Nov. 27, 2019).
24
783 A.2d at 1277.
25
Reply Suppl. Mem. 3 (“DNREC never argued that its standing [to appeal] is based on
res judicata or collateral estoppel. Rather, DNREC argues that if this Court finds that its
appeal is not moot, then it has standing to challenge the Superior Court’s decision under
Hercules, because that decision serves as the law of the case as to whether F&WW has
standing under 7 Del. C. § 6008.”).
26
Frederick-Conaway v. Baird, 159 A.3d 285, 296 (Del. 2017) (quoting Kenton v. Kenton,
571 A.2d 778, 784 (Del. 1990)).
7
law of the case . . . .’”27 “In more simplified terms, the law of the case doctrine
operates as a form of intra-litigation stare decisis.”28 The law of the case “doctrine
appears most often when a trial court is required to give effect to law established in
a case after it has been appealed and the appellate court has ruled on the relevant
issues.”29 Nonetheless, “[t]he doctrine also applies to decisions rendered by a court
that arise again later in the same court, in the same proceeding . . . .”30
DNREC’s law of the case argument fails because regardless of how the Court
resolves this appeal, there will be no subsequent phases of this litigation in which
the law of the case doctrine could be applied. If the Court dismisses the appeal for
lack of standing to appeal or because the appeal is moot, the Superior Court’s Merits
Decision stands, Watch’s claims have been dismissed with prejudice, and the case
is over. The same is true if the Court reaches the substance of DNREC’s appeal and
affirms the Superior Court’s Standing Decision. Finally, even if the Court reverses
the Superior Court’s Standing Decision, the Court will affirm the Appeal Board’s
27
May v. Bigmar, Inc., 838 A.2d 285, 288 n.8 (Del. Ch. 2003) (quoting Odyssey P’rs v.
Fleming Co., 1998 WL 155543, at *1 (Del. Ch. Mar. 27, 1998)).
28
Fredrick-Conaway, 159 A.3d at 296 (quoting Carlyle Inv. Mgmt. L.L.C. v. Moonmouth
Co. S.A., 2015 WL 5278913, at *8 (Del. Ch. Sept. 10, 2015)).
29
Id.
30
Id. This Court has recognized that “the doctrine of law of the case does not bar
‘reconsideration of a prior decision that is clearly wrong, produces an injustice[,] or should
be revisited because of changed circumstances.’” State v. Wright, 131 A.3d 310, 321 (Del.
2016) (quoting Hoskins v. State, 102 A.3d 724, 729 (Del. 2014)); see also Sherman v. State
Dep't of Pub. Safety, 190 A.3d 148, 154 (Del. 2018). These exceptions are not relevant to
the Court’s analysis, however, because there will be no subsequent phases of this litigation
in which Watch could try to invoke the law of the case doctrine.
8
dismissal of Watch’s claims. Whatever decision this Court reaches, the law of the
case doctrine is irrelevant because this case is over.
DNREC’s arguments therefore fail to show that it is an aggrieved party that
has standing to appeal. DNREC prevailed below; the Superior Court granted all of
the relief DNREC requested; and the Superior Court’s Standing Decision cannot
provide the basis for invoking the law of the case doctrine.31 Accordingly, the Court
dismisses DNREC’s appeal for lack of standing to appeal.32
III. Conclusion
For the reasons provided above, the appeal is DISMISSED for lack of
standing to appeal.
31
The Court need not consider whether the Superior Court’s Standing Decision could
provide the basis for invoking res judicata or collateral estoppel because DNREC expressly
rejected any suggestion that it relied on either doctrine to establish that it has standing to
appeal. Reply Suppl. Mem. 3 (“DNREC never argued that its standing [to appeal] is based
on res judicata or collateral estoppel. Rather, DNREC argues that if this Court finds that
its appeal is not moot, then it has standing to challenge the Superior Court’s decision under
Hercules, because that decision serves as the law of the case as to whether F&WW has
standing under 7 Del. C. § 6008.”).
32
DNREC argues that “if this Court concludes that F&WW has mooted DNREC’s appeal,
then this Court should, in the interest of justice, apply the equitable remedy of vacatur to
prevent the Superior Court’s Standing Decision from having any precedential effect against
DNREC.” Opening Suppl. Mem. 9-10; see also Reply Br. 8. Watch responds that DNREC
failed to timely request vacatur by waiting until its reply brief to request the equitable
remedy. Answering Suppl Mem. 10 n.1. Watch further argues that that the “interests of
justice” do not require vacatur here. Id. at 11. We do not resolve this dispute because
DNREC does not request vacatur if the Court concludes that DNREC lacks standing to
appeal under Hercules.
9