Southern Blasting Services, Inc. v. Wilkes County

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOUTHERN BLASTING SERVICES, 

INCORPORATED; PIEDMONT DRILLING &

BLASTING, INCORPORATED,

Plaintiffs-Appellants,

v.  No. 01-2098

WILKES COUNTY, NORTH CAROLINA, a

body politic; KEVIN D. BOUNDS,

Wilkes County Fire Marshal,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CA-98-102-5-V)

Argued: February 27, 2002

Decided: April 29, 2002

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.

COUNSEL

ARGUED: Douglas George Eisele, EISELE, ASHBURN, GREENE

& CHAPMAN, P.A., Statesville, North Carolina, for Appellants.

2 SOUTHERN BLASTING SERVICES v. WILKES COUNTY

Anthony Ray Triplett, VANNOY, COLVARD, TRIPLETT & VAN-

NOY, P.L.L.C., North Wilkesboro, North Carolina, for Appellees.

OPINION

WILKINSON, Chief Judge:

Plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling &

Blasting, Inc. seek to conduct explosives businesses and blasting

operations in Wilkes County, North Carolina using Hazardous Mate-

rials Transportation Act ("HMTA") Class 1 materials. Plaintiffs chal-

lenge two County ordinances, one which requires permitting of

explosives operations and one which regulates the storage and use of

explosives in the County. Plaintiffs claim that the ordinances are pre-

empted by federal law, are invalid under North Carolina law, and vio-

late their due process rights. The district court upheld the validity of

both ordinances, granting summary judgment for Wilkes County and

the County Fire Marshal. We affirm.

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

SOUTHERN BLASTING SERVICES v. WILKES COUNTY 3

safety concerns and this public outcry, the Board voted unanimously

to have a committee draft ordinances that would establish both a per-

mit 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 otherwise 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 Mar-

shal. See Permitting Ordinance art. VI. However, the application pro-

cess included a public hearing and consultation with the Federal

Bureau of Alcohol, Tobacco & Firearms ("BATF"), the County Plan-

ning Department, the County Health Department, the County Build-

ing 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 Ordi-

nance"), which became effective on December 8, 1998 after the nec-

essary 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 explosives,

and established penalties for violations. See Regulatory Ordinance art.

VI, VII. Like the Permitting Ordinance, the Regulatory Ordinance

excluded the possession, transportation, storage, and use of small

arms ammunition from its scope. See Regulatory Ordinance art. V.1

1

While the Building Code Council approval of the Regulatory Ordi-

nance was pending, the County Fire Marshal issued a directive limiting

the hours of operation for vehicles transporting explosive materials on

4 SOUTHERN BLASTING SERVICES v. WILKES COUNTY

Plaintiffs did not apply for a permit under the Permitting Ordi-

nance. Instead, plaintiffs initiated this action, alleging that the Permit-

ting and Regulatory Ordinances were preempted by federal law, were

invalid under North Carolina law, and violated their due process

rights. Plaintiffs sought injunctive relief to prevent the enforcement of

the ordinances. The district court concluded that both the Permitting

and Regulatory Ordinances were valid and granted summary judg-

ment 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,

N.C. Gen. Stat. § 153A-128, were valid under Article II, § 24 of the

North Carolina Constitution, which prevents the North Carolina Gen-

eral Assembly from promulgating certain acts of less than statewide

application. The court found that § 153A-128 granted authority to

regulate explosive substances uniformly to all North Carolina coun-

ties in conformance with Article II, § 24. Id. at 458-59.

The district court next rejected plaintiffs’ substantive due process

claim, finding that the ordinances were a valid exercise of the Coun-

ty’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 ordi-

nances. Id. at 460-61. Plaintiffs appeal.

two County roads. The directive was based on the Fire Marshal’s con-

cern for traffic on these roads during school-bus hours and the proximity

of plaintiffs’ businesses to an elementary school. The district court found

that the directive was preempted by the HMTA and was therefore void

and unenforceable. S. Blasting Servs., Inc. v. Wilkes County, 162 F.

Supp. 2d 455, 463-65 (W.D.N.C. 2001). The County has not appealed

the validity of the directive, so we need not address this issue.

SOUTHERN BLASTING SERVICES v. WILKES COUNTY 5

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 (1985) (quoting

Gibbons v. Ogden, 9 Wheat. 1, 211 (1824)). The Supreme Court has

repeatedly held that "state laws can be pre-empted by federal regula-

tions as well as by federal statutes" and that "for the purposes of the

Supremacy Clause, the constitutionality of local ordinances is ana-

lyzed in the same way as that of statewide laws." Hillsborough, 471

U.S. at 713 (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 (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

(1996) (internal quotation omitted). States have long possessed pri-

mary responsibility in our federal system for protecting the health and

safety of their citizens. Id. at 475, 485. 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 mani-

fest purpose of Congress." Id. at 485 (quoting Rice v. Santa Fe Eleva-

tor Corp., 331 U.S. 218, 230 (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. Second, in the

absence of express preemptive language, Congress’ intent to preempt

state law may be implied when "federal law so thoroughly occupies

a legislative field as to make reasonable the inference that Congress

left no room for the States to supplement it." Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 516 (1992) (internal quotations omitted).

Finally, preemption 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 accomplishment and exe-

6 SOUTHERN BLASTING SERVICES v. WILKES COUNTY

cution of the full purposes and objectives of Congress." Hillsborough,

471 U.S. at 713 (internal quotations omitted).

B.

Plaintiffs claim that federal law regulating the manufacture, distri-

bution, and storage of explosive materials preempts the County’s Per-

mitting 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 18

U.S.C. §§ 841-848 (2000). Section 848, entitled "Effect on State law,"

provides:

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

touchstone." Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn,

375 U.S. 96, 103 (1963). Here Congress has stated in the clearest of

terms that it was not preempting local efforts to regulate the explo-

sives industry, absent a direct and positive conflict with the federal

standards. In fact, as the district court recognized, "§ 848 is designed

to limit the preemptive scope" of the federal law and expressly "dis-

claims any intent to occupy the field." S. Blasting, 162 F. Supp. 2d

at 462.2

2

Plaintiffs’ contention that the County ordinances are invalid because

§ 848 only refers to "state" laws is without merit. As the district court

concluded, there is "no reason to believe Congress intended to treat local

and State regulations differently" under § 848. S. Blasting, 162 F. Supp.

2d at 462. And for preemption purposes, "the constitutionality of local

ordinances is analyzed in the same way as that of statewide laws." Hills-

borough, 471 U.S. at 713.

SOUTHERN BLASTING SERVICES v. WILKES COUNTY 7

Contrary to plaintiffs’ assertions, the comprehensiveness of federal

law in the explosives area does not override this clear expression of

congressional intent in § 848. The Supreme Court has noted that con-

temporary issues often require "intricate and complex responses from

the Congress, but without Congress necessarily intending its enact-

ment as the exclusive means of meeting the problem." Hillsborough,

471 U.S. at 717 (internal quotation omitted). This is especially true

in a case such as this one where Wilkes County acted pursuant to its

traditional police powers. Indeed, the Court "will seldom infer, solely

from the comprehensiveness of federal regulations, an intent to pre-

empt in its entirety a field related to health and safety." Id. at 718.

Congress’ desire not to preempt state and local efforts to regulate

explosive materials 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 explosives to

schools, nursing homes, or residential areas. Congress did not intend

to preempt democratic responses to such local conditions and con-

cerns. 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. Plaintiffs on the other hand, ask this court

to cut the democratic process short by declaring the County ordi-

nances void and unenforceable.

We are similarly unpersuaded by plaintiffs’ argument that the

County ordinances are invalid because they are in "direct and positive

conflict" with the federal law governing explosive materials. The "di-

rect and positive conflict" language in 18 U.S.C. § 848 simply restates

the principle that state law is superseded in cases of an actual conflict

with federal law such that "compliance with both federal and state

regulations is a physical impossibility." Hillsborough, 471 U.S. at 713

(internal quotation omitted). Indeed, § 848 explains that in order for

a direct and positive conflict to exist, the state and federal laws must

be such that they "cannot be reconciled or consistently stand

together." 18 U.S.C. § 848.

To support their argument that a direct conflict is present in this

case, plaintiffs point to numerous provisions of the County Permitting

8 SOUTHERN BLASTING SERVICES v. WILKES COUNTY

and Regulatory Ordinances that impose more stringent requirements

than those contained in the federal regulations. For example, unlike

the federal regulations, the Permitting Ordinance requires a permit

applicant to submit a detailed history of all past and present opera-

tions, detailed written information on the applicant’s financial ability,

and an estimated schedule of all activities and operations the applicant

plans to conduct. See Permitting 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 stan-

dard is not mandated, or when compliance with federal law actually

results in a violation of local law. Here, even though the County ordi-

nances are strict, they do not create a situation where the ordinances

and the federal law cannot be reconciled or consistently stand

together.

The BATF, which is authorized to issue regulations to administer

the federal explosives laws, has stated that a federal license to import,

manufacture, or deal in explosive materials does not exempt a

licensee from state and local requirements. Indeed, a federal license

"confers no right or privilege to conduct business or operations,

including storage, contrary to State or other law." 27 C.F.R. § 55.62

(2001). And a federal licensee "is not . . . immune from punishment

for conducting an explosive materials business or operations in viola-

tion of the provisions of any State or other law." Id. Further, BATF

has explained that "[w]here a situation arises that State or local

requirements are more stringent than the Federal, the more stringent

requirement must be followed." ATF — Explosives Law and Regula-

tions, ATF P 5400.7 at 57 (June 1990).

Moreover, BATF actually examined the County’s Permitting and

Regulatory Ordinances and stated in a letter that "while the ordi-

nances contain some provisions which are more stringent than those

contained in [18 U.S.C. §§ 841-848], it does not appear that compli-

ance with the Wilkes County Ordinances would result in a violation

of [§§ 841-848]." To the contrary, compliance with the more stringent

requirements of the County ordinances actually helps to assure com-

pliance with the federal requirements.

SOUTHERN BLASTING SERVICES v. WILKES COUNTY 9

We also reject plaintiffs’ argument that the ordinances cannot be

reconciled with federal law because the Regulatory Ordinance pre-

vents licensed companies from expanding, and because the Permitting

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 limit-

ing the number 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 § 848 explaining that no provision of the fed-

eral explosives law "shall be construed as indicating an intent on the

part of the Congress to occupy the field in which such provision oper-

ates to the exclusion of the law of any State on the same subject mat-

ter."

III.

We next turn to plaintiffs’ claim that the County ordinances and

their enabling statute are invalid under the North Carolina Constitu-

tion. The Permitting and Regulatory Ordinances were enacted pursu-

ant to N.C. Gen. Stat. § 153A-128 (1999), which states that "[a]

county may by ordinance regulate, restrict, or prohibit the sale, pos-

session, storage, use or conveyance of any explosive, corrosive,

inflammable, or radioactive substance." Plaintiffs contend that both

§ 153A-128 and the County ordinances are invalid under Article II,

§ 24 of the North Carolina Constitution because they affect trade or

business but do not have statewide application.

We note at the outset that a federal court should be exceedingly

cautious about invalidating a state statute or a local ordinance under

a state constitution. Like most states, North Carolina "recognizes a

presumption in favor of the constitutionality of a [state] statue." Gard-

ner v. City of Reidsville, 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 reasonable doubt, it will be resolved in favor

of the lawful exercise of [the General Assembly’s] powers." E.g.,

10 SOUTHERN BLASTING SERVICES v. WILKES COUNTY

Town of Emerald Isle v. State, 360 S.E.2d 756, 761 (N.C. 1987)

(internal quotation omitted).

Article II, § 24 of the North Carolina Constitution prohibits the

General Assembly from promulgating local acts relating to various

specified topics. Article II, § 24 states:

(1) Prohibited subjects. The General Assembly shall not

enact any local, private, or special act or resolution:

(a) Relating to health, sanitation, and the abate-

ment of nuisances; . . .

(j) Regulating labor, trade, mining, or manufac-

turing; . . .

(4) General laws. The General Assembly may enact gen-

eral 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 affected counties do

not rationally differ from the excepted counties in relation to the pur-

pose of the act." Smith v. County of Mecklenburg, 187 S.E.2d 67, 73

(N.C. 1972).

We agree with the district court that "§ 153A-128 is a general law

that comports perfectly with Article II, § 24." S. Blasting, 162 F.

Supp. 2d at 459. Section 153A-128 does not apply to fewer than all

the counties in North Carolina. Instead, it uniformly confers authority

on all 100 North Carolina counties to regulate or prohibit explosive

materials. Therefore, § 153A-128 is valid under the North Carolina

Constitution.

Furthermore, the Wilkes County Permitting and Regulatory Ordi-

nances do not violate the North Carolina Constitution. As the district

court noted, "Article II, § 24 does not mention or address the regula-

tory authority of counties or other local governments." Id. And Article

II, § 24 in no way prohibits the General Assembly from empowering

counties to act in the specified fields. In fact, the primary purposes of

SOUTHERN BLASTING SERVICES v. WILKES COUNTY 11

Article II, § 24 were to "free the General Assembly" from the "petty

detail" of enacting local legislation, to enable the General Assembly

"to devote more time and attention to general legislation of statewide

interest and concern," and thereby to "strengthen local self-

government" by delegating local matters to local authorities. High

Point Surplus Co. v. Pleasants, 142 S.E.2d 697, 702 (N.C. 1965).3

Article II, § 24 was meant to promote just the type of interaction that

has occurred here between the General Assembly and a local govern-

ment, which is concededly more familiar with local conditions.

IV.

Finally, we address plaintiffs’ due process claim. Plaintiffs contend

that the County violated their due process rights by granting the

County Fire Marshal broad discretionary authority under the ordi-

nances, especially the Permitting Ordinance. It is not entirely clear,

however, whether plaintiffs are presenting this argument as a substan-

tive or procedural due process challenge. Therefore, like the district

court, we consider each in turn and conclude that plaintiffs’ claim

fails under both.

A.

In order to state a substantive due process claim, plaintiffs must

demonstrate: "(1) that they had property or a property interest; (2) that

the state deprived 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). Sub-

stantive due process protections "run only to state action so arbitrary

and irrational, so unjustified by any circumstance or governmental

interest, as to be literally incapable of avoidance by any pre-

deprivation procedural protections or of adequate rectification by any

3

High Point discussed former Article II, § 29 of the North Carolina

Constitution. However, the North Carolina Supreme Court has stated that

decisions "which refer directly to former Article II, § 29, apply equally

to present Article II, § 24," which is identical in all material respects.

Smith, 187 S.E.2d at 73.

12 SOUTHERN BLASTING SERVICES v. WILKES COUNTY

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’ substan-

tive due process claim fails under the third prong of the Sylvia test.

The County’s actions obviously did not fall beyond the outer limits

of legitimate governmental action. Instead, the County’s actions were

rationally related to a legitimate governmental purpose. Therefore,

plaintiffs "cannot demonstrate that the County’s actions were arbi-

trary or irrational as required by Sylvia and Rucker." Tri-County Pav-

ing, 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

Regulatory Ordinances to discover the County’s legitimate govern-

mental interest. The County’s purpose in enacting the ordinances was

"protecting the public and safeguarding the health and welfare of the

citizens of the County." Permitting Ordinance art. III; Regulatory

Ordinance art. III. The Board found "that the location, possession,

storage, use, handling, manufacture, sale, and transportation of certain

explosive materials, together with the danger 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 regu-

lated, controlled, and monitored." Permitting Ordinance art. III; Regu-

latory 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 oper-

ations and the storage of inherently hazardous materials do not

present 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 government." 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 ordi-

SOUTHERN BLASTING SERVICES v. WILKES COUNTY 13

nances "tighten security at explosives storage facilities, limit the pre-

mixing and storage of volatile materials, and require information on

the size, location, and duration of any blasting operations." S. Blast-

ing, 162 F. Supp. 2d at 460. Further, the County could reasonably

have believed that the Fire Marshal, given his experience with the

hazards of fires and explosions, was in the best position to decide

whether to grant a permit under the Permitting Ordinance, and was in

the best position to enforce the Regulatory Ordinance. Therefore, the

County’s grant of authority to the Fire Marshal to review permit

applications and implement the ordinances was also rationally related

to the County’s legitimate interest in protecting the health and safety

of its residents.

B.

Plaintiffs’ complaint regarding the Fire Marshal’s discretionary

powers under the ordinances also fails as a procedural 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 traceable to the challenged

action of the defendant; 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 (2000). And in order to sat-

isfy the injury-in-fact requirement, plaintiffs must demonstrate 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 (1992)). Here, plaintiffs have never even applied

for a permit, much less been denied one. Therefore, they cannot dem-

onstrate an actual injury from the County granting the Fire Marshal

decision-making authority under the Permitting Ordinance. See Ori-

ental Health Spa v. City of Fort Wayne, 864 F.2d 486, 488-89 (7th

Cir. 1988) (finding that a plaintiff lacked standing to bring a proce-

dural due process challenge to a local licensing scheme where plain-

tiff had never been threatened with revocation or suspension of its

current license).

Second, even if plaintiffs had standing, their procedural due pro-

cess claim fails because the Permitting Ordinance does not grant

14 SOUTHERN BLASTING SERVICES v. WILKES COUNTY

unfettered discretion to the Fire Marshal. Instead, the ordinance pro-

vides ample process by establishing a set of procedures to ensure that

permits cannot be denied or revoked randomly. For example, a permit

applicant must submit a large volume of information, which is

designed to assist the Fire Marshal in determining whether or not the

proposed operation "will be conducted in a safe and responsible man-

ner" in accordance with federal and state law and County ordinances.

See Permitting Ordinance art. VI(C). Further, before a permit 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 applicant proposes to conduct." Permitting

Ordinance art. VI(E). Moreover, if the Fire Marshal ultimately deter-

mines that a permit must be denied, he must provide the applicant

with a written explanation of the reasons for his decision. Id. And a

permit applicant "may appeal [a] denial or revocation to the [North

Carolina] District or Superior Courts" where an arbitrary or capricious

decision by the Fire Marshal could be reversed. Permitting Ordinance

art. VI(K). This procedure is quite sufficient to satisfy the require-

ments of procedural due process.

V.

In sum, we find no impediment in federal or state law to Wilkes

County’s regulation of explosives operations. For the foregoing rea-

sons, we affirm the judgment of the district court.

AFFIRMED