REVISED - March 17, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-60747
_____________________
PRESTAGE FARMS, INC.,
Plaintiff-Appellee,
versus
BOARD OF SUPERVISORS OF NOXUBEE COUNTY, MISSISSIPPI, et al.,
Defendants,
BOARD OF SUPERVISORS OF MONROE COUNTY,
MISSISSIPPI,
Defendant-Appellant.
_______________________________________________________
Appeals from the United States District Court
for the Northern District of Mississippi
_______________________________________________________
March 10, 2000
Before POLITZ, GARWOOD and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant-Appellant, Board of Supervisors of Monroe County, Mississippi (“Monroe
County”), challenges the issuance of a preliminary injunction against a Monroe County ordinance
regulating new and expanding swine farming in Monroe County1. However, Prestage failed to
show any concrete effect the ordinance has on its ability to purchase hogs from Monroe County
farmers. Prestage can continue to buy hogs from Hi-Lo, the farmer with whom it has a contract to
purchase hogs at existing production levels, and the ordinance does not affect this farmer’s current
1
The Monroe County ordinance restricts the location of new or expanding swine farms in the
County by requiring various “buffer zones” between such farms and a Monroe County municipality,
residential dwellings, local waterways, and adjacent property lines.
1
operations and production. Prestage produced no proof that, if the ordinance is stricken, Hi-Lo or
any other farmer would sell Prestage any additional hogs their farms may produce. Because Prestage
has failed to show the requisite injury, it has no standing to challenge the ordinance.
I.
Plaintiff-Appellee Prestage Farms, Inc. (“Prestage”) is a large hog producer with operations
in numerous southern states. Since 1992, Prestage had a contract with Bryan Foods, Inc. (“Bryan
Foods”), a large meat processor, to provide a set number o f hogs per week. In order to fulfill its
agreement with Bryan Foods, Prestage contracted with smaller independent farmers throughout
Mississippi to raise the necessary hogs. These independent farmers are responsible for the land, farm
buildings, applicable permits, and labor. In return, Prestage provides the livestock, feed, disinfectants,
support personnel, expertise, and any necessary medication. Prestage has an existing contract to
purchase hogs at current production levels with one independent Monroe County farmer, Hi-Lo
Farms (“Hi-Lo”). Prestage claims that it has informal plans to purchase hogs from a yet to be
established facility proposed by Ray and Sandra Gallop (the “Gallops”). Both Hi-Lo and the Gallops
have filed separate applications with the State of Mississippi Department of Environmental Quality
to expand or establish their hog farming operations in Monroe County, and both would be prevented
from such development by enforcement of the challenged Monroe County ordinance.
Prestage filed suit in the district court against Monroe County and five other Mississippi
counties that had similar ordinances, seeking declaration that the ordinances are invalid and requesting
a preliminary injunction enjoining enforcement of the ordinance. Prior to a scheduled hearing on the
motion for preliminary injunction, Prestage settled with three of these counties. Following a hearing
on the motion, the district court rendered an opinion and order granting the preliminary injunction
and enjoining Monroe and two other counties from enforcing these ordinances. Before the required
briefing deadline for this appeal, Prestage settled its claims against two of the three remaining
defendants, leaving Monroe County as the sole party appealing the district court’s order.
II.
2
Monroe County’s first argument is that the district court lacked standing and, therefore, had
no jurisdiction to consider the complaint against it. Prestage acknowledges that it engaged in no hog
farming in Monroe County and owned no property in the county.
Nevertheless, Prestage points to the inability of Hi-Lo to expand its business and the inability
of the Gallops to start a new swine facility in Monroe County. According to Prestage, this prevents
it from purchasing the hogs these farmers would have produced if their plans were approved.
Critically, however, Prestage produced no evidence that if the ordinance is stricken and Hi-Lo and
the Gallups get their permits and decide to produce hogs pursuant to these permits, these farmers will
sell their hogs to Prestage. Prestage introduced no contract with either grower, letter of intent, or
other evidence that these growers will sell their prospective hog production to Prestage.
Article III of the Constitution requires the plaintiff to demonstrate standing before the court
can decide the merits of a dispute. To make this showing, the plaintiff must establish an “injury in
fact,” a requirement that assures that the court will not pass upon abstract problems but will
adjudicate only concrete disputes between adversaries.2
In Lujan v. Defenders of Wildlife, the Supreme Court stated that threatened future injury
must be “real and immediate; not conjectural or hypothetical” in order to demonstrate Article III
standing.3 While the risk of injury may be founded on a likely and credible chain of events4, the injury
must be “certainly impending.”5 Federal courts consistently deny standing when claimed anticipated
injury has not been shown to be more than uncertain potentiality.6 In Texas v. United States, a recent
2
See F.E.C. Comm’n v. Akins, 524 U.S. 11, 20, 118 S. Ct. 1777, 1784 (1998) (citing Justice
Frankfurter’s dissent in Coleman v. Miller, 307 U.S. 433, 460, 59 S. Ct. 972, 985(1939)).
3
504 U.S. at 559-61, 112 S. Ct. at 2136; see also, Friends of the Earth, Inc. v. Laidlaw Envtl.
Serv’s, Inc., 120 S. Ct. 693, 704 (2000); A.C.O.R.N. v. Fowler, 178 F.3d 350, (5th Cir. 1999).
4
See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir. 1992); Wilderness
Soc’y v. Griles, 824 F.2d 4, 12 (D.C. Cir. 1987).
5
Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717 (1990).
6
See e.g., Amer. Fidelity & Casualty Co. v. Pennsylvania Threshermen & Farmer’s Mutual
Casualty Insurance Co., 280 F.2d 453, 461 (5th Cir. 1960) (“It is not the function of a United States
3
decision invoking the closely related ripeness doctrine7, the Supreme Court applied similar reasoning
to find that Texas had not presented a justiciable claim because the proposed harm depended on the
occurrence of numerous uncertain future events.8 Seeking preenforcement review of a new state
statute, Texas sued for a declaration that § 5 of the Voting Rights Act of 1965 did not apply to a law
permitting the state government to appoint “masters” or “management teams” as two of ten possible
sanctions for failure of local school districts to meet state-mandated educational achievement levels.9
After citing the string of contingencies that must occur before a justiciable claim would arise10, the
Court held that because any judicially redressable harm was “contingent on a number of factors,”
Texas’s claim was “too speculative” and “not fit for adjudication.”11
Likewise, Prestage’s injury from this ordinance depends on the occurrence of a number of
uncertain events: (1) that Hi-Lo and the Gallops will expand or develop their capacity if authorized
by the county; (2) that this new capacity will result in a successful harvest of additional hogs; (3) that
these independent farmers will sell their hogs to Prestage; and (4) that these sales will be necessary
to fulfill contractual obligations to Bryan Foods. We conclude that Prestage’s future injury under
these circumstances is too conjectural and hypothetical to provide Article III standing.
District Court to sit in judgment on these nice and intriguing questions which today may readily be
imagined, but may never come to pass.”).
7
The justiciability doctrines of ripeness and standing often intersect because the question of
whether a plaintiff has suffered an adequate harm is integral to both. Erwin Chemerinsky, Federal
Jurisdiction § 2.4, at 114-15 (2d ed. 1994).
8
523 U.S. 296, 118 S. Ct. 1257 (1998).
9
Id.
10
523 U.S. at 300, 118 S. Ct. at 1259-60 (“First , a school district must fall below the state
standards. Then, pursuant to state policy, the Commissioner must try first ‘the imposition of
sanctions which do not include the appointment of a master or management team.’ . . . It is only if
these less intrusive options fail that a Commissioner may appoint a master or management team,
[citation omitted], and even then, only ‘to the extent the Commissioner determines necessary,’
[citation omitted]. Texas has not pointed to any particular school district in which the application of
[the state statute] is currently foreseen or even likely.”).
11
523 U.S. at 300-01, 118 S. Ct. at 1259-60.
4
III.
For the reaso ns discussed above, the preliminary injunction issued by the district court is
vacated and Appellee’s suit is dismissed for lack of jurisdiction.
VACATED and DISMISSED.
5