Graham v. Air Quality Board

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Mark Graham,
Petitioner,

v.

Utah Air Quality Board
and Wasatch Energy Systems,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000042-CA

F I L E D
February 8, 2001 2001 UT App 36 -----

Original Proceeding in this Court

Attorneys:
Joro Walker, Salt Lake City, for Petitioner
Mark L. Shurtleff and Richard K. Rathbun, Salt Lake City, for Respondents

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Before Judges Billings, Davis, and Orme.

BILLINGS, Judge:

Petitioner Mark Graham (Graham) appeals the Utah Air Quality Board's (Board) denial of his petition to intervene in the formal adjudicative proceeding of the Davis County Solid Waste Management and Energy Recovery Special Service District d/b/a Wasatch Energy Systems.

Graham argues the Board did not apply the appropriate standard in denying his petition to intervene under Utah Code Ann. § 63-46b-9(2) (1997). He contends that given his concerns for the air quality and his health, he has a substantial legal interest in the proceeding. However, Graham admits that in August 2000 he moved from the State of Utah.(1) We conclude this renders this case moot and therefore do not reach the issues raised on appeal.

Utah courts have consistently held that "'[a] case is deemed moot when the requested judicial relief cannot affect the rights of the litigants.'" Matrix Funding Corp. v. Auditing Div. of Utah State Tax Comm'n, 912 P.2d 960, 961 (Utah 1996) (quoting Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989)). A well-recognized exception to the mootness doctrine upon which Graham attempts to rely is that a case is not moot when the issue presented is likely to recur yet evade review. See Salt Lake City v. Tax Comm'n, 813 P.2d 1174, 1177 (Utah 1991).

Graham relies on Society of Professional Journalists v. Bullock, 743 P.2d 1166 (Utah 1987). In Bullock, the court held that the matter was not moot, reasoning that "in cases involving access to pretrial proceedings, there seldom will be sufficient time for an appellate court to intervene before the proceeding is concluded." Id. at 1169. Thus, the court found "[t]hat fact alone would justify an exception to the mootness doctrine because otherwise, the important public issue of access to pretrial proceedings is likely to evade review." Id.

In Bullock, the concern was the time involved in allowing an appellate court to intervene before a pretrial proceeding is concluded. No such problem presents itself here. The proceedings before the Board are not of the same type as those in Bullock. In fact, Graham has complained of the length of the enforcement process. Although Graham has moved, the record reveals that there are other residents affected by the emissions from the facility who could attempt to intervene and express the same concerns that Graham would raise in a subsequent enforcement action. Thus, we conclude this case is moot as to Graham and dismiss the appeal.
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. We commend Graham's candor with the Court. Further, we note that although this Court previously denied the Board's motion to dismiss based upon mootness, the factual basis for its motion was entirely different than the issue we deal with today. The Board's original suggestion of mootness was based on the fact that the underlying case in which Graham sought intervention had been settled. Thus, the doctrine of "law of the case" does not preclude us from considering mootness. See State v. O'Neil, 848 P.2d 694, 697 (Utah Ct. App. 1993); see also Dancing Sunshines Lounge v. Indus. Comm'n of Ariz., 720 P.2d 81, 84 (Ariz. 1986) (stating doctrine of law of the case does not apply to changed factual circumstances).