Rel: 09/26/2014




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130393
                             ____________________

  Ex parte Alabama Rivers Alliance and Friends of Hurricane
                            Creek

                     PETITION FOR WRIT OF CERTIORARI
                      TO THE COURT OF CIVIL APPEALS

                   (In re: Tuscaloosa Resources, Inc.

                                           v.

    Alabama Department of Environmental Management et al.)

              (Tuscaloosa Circuit Court, CV-10-900300;
                  Court of Civil Appeals, 2120482)



PARKER, Justice.
1130393

    Alabama Rivers Alliance and Friends of Hurricane Creek

(hereinafter collectively referred to as "ARA") petitioned

this Court for a writ of certiorari to review the Court of

Civil Appeals' decision reversing a judgment of the Tuscaloosa

Circuit Court ("the trial court") dismissing an appeal by

Tuscaloosa Resources, Inc. ("TRI"), of a decision of the

Environmental Management Commission ("the Commission").               See

Tuscaloosa Res., Inc. v. Alabama Dep't of Envtl. Mgmt., [Ms.

2120482, October 4, 2013] ___ So. 3d ___ (Ala. Civ. App.

2013).    The Alabama Department of Environmental Management

("ADEM") oversees the Commission.            We granted certiorari

review    to   consider   whether   the   Court   of   Civil   Appeals'

decision conflicts with this Court's decision in Price v.

South Central Bell, 294 Ala. 144, 313 So. 2d 184 (1975), and

the Court of Civil Appeals' decision in Personnel Board of

Jefferson County v. Bailey, 475 So. 2d 863 (Ala. Civ. App.

1985).      See Rule 39(a)(1)(D), Ala. R. App. P.               For the

following      reasons,   we   conclude   that   the   Court   of   Civil

Appeals' decision in this case does conflict with Price and

Bailey, and we reverse its judgment.

                    Facts and Procedural History


                                    2
1130393

    In Tuscaloosa Resources, the Court of Civil Appeals set

forth the relevant facts and procedural history, as follows:

    "TRI sought a water-pollution permit from ADEM. The
    Alabama Rivers Alliance and Friends of Hurricane
    Creek (hereinafter referred to collectively as
    'ARA') challenged the issuance of the permit through
    ADEM's administrative-appeals process. One of the
    grounds TRI asserted in its defense of the issuance
    of the permit was whether ARA had standing to
    contest the permit. At the evidentiary hearing of
    the matter, TRI presented evidence regarding the
    standing issue.    After the hearing, the hearing
    officer submitted his recommendations to the
    Commission.    In turn, the Commission entered an
    order adopting the hearing officer's recommendation,
    which, among other things, concluded that ARA did
    have standing to contest the permit, and it upheld
    the issuance of the permit to TRI.

         "TRI appealed the Commission's order to the
    trial court.[1]   The trial court noted that, by

    1
     As set forth below, ARA subsequently filed an appeal in
the Montgomery Circuit Court. Section 41-22-20(b), Ala. Code
1975, allows an aggrieved party to seek judicial review
"either in the Circuit Court of Montgomery County or in the
circuit court of the county in which the agency maintains its
headquarters, or unless otherwise specifically provided by
statute, in the circuit court of the county where a party
other than an intervenor, resides or if a party, other than an
intervenor, is a corporation, domestic or foreign, having a
registered office or business office in this state, then in
the county of the registered office or principal place of
business within this state." TRI does not indicate in its
brief before this Court why it believes that the Tuscaloosa
Circuit Court was the appropriate venue for its appeal. In
its motion to transfer ARA's appeal from the Montgomery
Circuit Court, TRI indicated that venue was appropriate in the
Tuscaloosa Circuit Court because ARA "perform[s] in Tuscaloosa
County business functions for which [it was] created."
                              3
1130393

    statute, only aggrieved parties can appeal a
    decision of the Commission to the circuit court and
    found that TRI was not a 'person aggrieved by the
    administrative    action'   of    the   Commission.
    Therefore, the trial court held, it did not have
    subject-matter jurisdiction over the appeal, and it
    dismissed TRI's appeal."

___ So. 3d at ___.

                      Standard of Review

    This   case   concerns   TRI's   standing   to    appeal   the

Commission's final decision in TRI's favor. The facts related

to TRI's standing to appeal the decision are not in dispute;

thus, only a question of law is presented for our review.

This Court reviews questions of law de novo.         National Ins.

Ass'n v. Sockwell, 829 So. 2d 111 (Ala. 2002); Moss v.

Williams, 822 So. 2d 392 (Ala. 2001); and Reed v. Board of

Trs. of Alabama State Univ., 778 So. 2d 791 (Ala. 2000).       See

also New L&N Sales & Marketing, Inc. v. Revson, 29 Fed. App'x

582, 582 (Fed. Cir. 2002)(not selected for publication in the

Federal Reporter)("Whether a party has standing to appeal is

a question of law that we review de novo."); Garrison v.

Garrison, 8 So. 3d 904, 906 (Miss. Ct. App. 2009)("Whether a

party has standing to appeal a trial court's judgment is a

question of law, which is reviewed de novo."); and Anderson v.


                               4
1130393

Access    Med.   Ctrs.,   263    P.3d   328,   330   (Okla.   Civ.   App.

2011)("'Whether a party lacks standing to appeal is a question

of law, which this Court reviews de novo ....'" (quoting In re

Baby W., 220 P.3d 32, 32 (Okla. Civ. App. 2009))).

                                Discussion

    In Tuscaloosa Resources, the main opinion set forth the

law the Court of Civil Appeals applied, as follows:

         "This case does not involve issues related to
    the Commission's procedures when hearing the appeal
    of an action taken by ADEM, see § 22-22A-7, Ala.
    Code 1975; therefore, our review of this case is
    governed by the Alabama Administrative Procedure Act
    ('AAPA'), § 41-22-20, Ala. Code 1975. See Alabama
    Dep't of Envtl. Mgmt. v. Legal Envtl. Assistance
    Found., Inc., 973 So. 2d 369, 375 n. 3 (Ala. Civ.
    App. 2007) (quoting Plumbers & Steamfitters, Local
    52 v. Alabama Dep't of Envtl. Mgmt., 647 So. 2d 793,
    794–95 (Ala. Civ. App. 1994) ('"because [the case]
    concerns a matter unrelated to the perfecting of an
    appeal, judicial review of a decision of the
    Commission is governed by §§ 41–22–20 and –21"')).

           "Section 41–22–20 provides, in pertinent part:

                "'(a) A person who has exhausted all
           administrative remedies available within
           the agency, other than rehearing, and who
           is aggrieved by a final decision in a
           contested case is entitled to judicial
           review under this chapter.'

    "(Emphasis added.)

         "Black's Law Dictionary 1232 (9th ed. 2009)
    defines an 'aggrieved party' as '[a] party entitled

                                    5
1130393

    to a remedy; esp., a party whose personal,
    pecuniary, or property rights have been adversely
    affected by another person's actions or by a court's
    decree or judgment.'     In Alabama Department of
    Environmental Management v. Friends of Hurricane
    Creek, 114 So. 3d 47, 51 (Ala. Civ. App. 2012), this
    court discussed what constituted an 'aggrieved'
    person under the AAPA.

               "'We start with the proposition that,
          for a person to demonstrate standing to
          seek relief in the courts of Alabama, that
          person must show "'(1) an actual concrete
          and particularized "injury in fact" —- "an
          invasion of a legally protected interest";
          (2) a "causal connection between the injury
          and the conduct complained of"; and (3) a
          likelihood   that   the   injury  will   be
          "redressed by a favorable decision."'" Ex
          parte HealthSouth Corp., 974 So. 2d 288,
          293 (Ala. 2007) (quoting Stiff v. Alabama
          Alcoholic Beverage Control Bd., 878 So. 2d
          1138, 1141 (Ala. 2003), quoting in turn
          Lujan v. Defenders of Wildlife, 504 U.S.
          555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d
          351 (1992)). Those elements of an actual
          or   imminent   injury,    causation,   and
          redressability, which have their origins in
          the "case or controversy" interpretive
          jurisprudence pertaining to Article III of
          the United States Constitution, amount to
          constitutional minima, at least as to the
          judicial branch.     See Hollywood Mobile
          Estates, Ltd. v. Seminole Tribe of Florida,
          641 F.3d 1259, 1265 (11th Cir. 2011); see
          also Pharmacia Corp. v. Suggs, 932 So. 2d
          95, 97 n. 4 (Ala. [2005]) (indicating that
          Section 139 of the Alabama Constitution of
          1901 similarly empowers this state's
          judiciary to "'decide discrete cases and
          controversies involving particular parties
          and specific facts'" rather than answering

                              6
1130393

          abstract questions) (quoting Alabama Power
          Co. v. Citizens of Alabama, 740 So. 2d 371,
          381 (Ala. 1999)); but see Climax Molybdenum
          Co. v. Secretary of Labor, 703 F.2d 447,
          451 (10th Cir. 1983) (indicating that
          administrative agencies are not bound by
          constitutional   "case    or   controversy"
          requirements).'"

___ So. 3d at ___.

    After setting forth the above law, the Court of Civil

Appeals proceeded to analyze Bailey, supra:

    "In Bailey, a deputy sheriff filed a grievance with
    the Jefferson County Personnel Board ('the Board')
    complaining that Sheriff Bailey had improperly
    transferred him from patrol duty to jail duty. The
    Board found that the deputy sheriff's complaint was
    'grievable' and then, after a hearing on the merits,
    entered a decision reinstating the deputy sheriff to
    the patrol division. 475 So. 2d at 865. Sheriff
    Bailey appealed the decision to the circuit court,
    seeking a judgment declaring that matters of job
    assignment were within the prerogative of the
    sheriff and not subject to review by the Board. The
    circuit court determined that the deputy sheriff's
    complaint was a matter properly considered by the
    Board but also held that the Board's reinstatement
    of the deputy sheriff to patrol duty was arbitrary
    and capricious. The deputy sheriff appealed to this
    court, and Sheriff Bailey cross-appealed. Id.

         "The deputy sheriff asserted that, because
    Sheriff Bailey had prevailed, he did not have
    standing to cross-appeal.      However, this court
    concluded that, because the circuit court's decision
    'could have a prejudicial effect on [Sheriff
    Bailey's] authority to assign and discipline
    subordinates in his department,' he had the right to


                              7
1130393

    cross-appeal the finding that the complaint was
    'grievable.' Id. at 866."

Tuscaloosa Resources, ___ So. 3d at ___.

    Based on its analysis of Bailey, the Court of Civil

Appeals then stated:

         "We find the rationale set forth in Bailey to be
    applicable in this case. TRI sought a ruling that
    ARA did not have standing to challenge the water-
    pollution permit that ADEM had issued. It argues
    that, in holding that ARA had standing, the
    Commission's ruling subjects TRI to additional
    litigation, that is, TRI now must take on the
    expense and risk required to defend ARA's appeal of
    the Commission's decision in the Montgomery Circuit
    Court.     However, if the trial court in the
    underlying appeal reverses the Commission's ruling
    on the issue of ARA's standing, TRI would not be
    required to address the merits of the issuance of
    the permit. Furthermore, we agree with TRI that the
    Commission's ruling weakens procedural protections
    against challenges to any permits TRI might require
    for future operations. Therefore, we conclude that
    TRI has demonstrated that it was aggrieved by the
    Commission's decision that ARA had standing to
    challenge the permit."

Tuscaloosa Resources, ___ So. 3d at ___.     Accordingly, the

Court of Civil Appeals held that the trial court had erred in

dismissing TRI's appeal.

    In its petition for certiorari review, ARA alleges that

the main opinion in Tuscaloosa Resources conflicts with Price,

supra, and Bailey, supra.   Specifically, ARA alleges that the


                               8
1130393

conclusion in Tuscaloosa Resources that TRI had standing to

appeal the Commission's decision to the trial court because

TRI was aggrieved by the Commission's decision that ARA had

standing to challenge TRI's application for a water-pollution

permit, even though TRI received all the relief it requested

from the Commission (TRI's water-pollution permit was granted,

even though the Commission determined that ARA had standing to

challenge TRI's application), conflicts with Price and Bailey.

We granted certiorari review to address this issue.

    For the reasons set forth in Judge Moore's dissent in

Tuscaloosa Resources, which is similar to the reasoning set

forth by ARA in its brief before this Court, we hold that the

Court   of   Civil   Appeals'   opinion   in   Tuscaloosa   Resources

conflicts with Bailey and Price, and, thus, the Court of Civil

Appeals' judgment must be reversed.       Judge Moore's convincing

dissent states, in pertinent part:

         "The main opinion, citing Personnel Board of
    Jefferson County v. Bailey, 475 So. 2d 863 (Ala.
    Civ. App. 1985), adopts TRI's assertions that the
    Commission's ruling subjects TRI to additional
    litigation because 'TRI now must take on the expense
    and risk required to defend ARA's appeal of the
    Commission's decision in the Montgomery Circuit
    Court.'   ___ So. 3d at ___.      The main opinion
    further observes that, 'if the trial court in the
    underlying appeal reverses the Commission's ruling

                                  9
1130393

    on the issue of ARA's standing, TRI would not be
    required to address the merits of the issuance of
    the permit.' ___ So. 3d at ___.

         "Although the main opinion relies on Bailey, I
    find    the   circumstances   in    Bailey   to   be
    distinguishable from those in the present case. In
    Bailey, a deputy sheriff filed a grievance with the
    Jefferson County Personnel Board ('the Board'),
    asserting that the sheriff had transferred him from
    patrol duty to jail duty in the sheriff's department
    for disciplinary reasons. 475 So. 2d at 865. The
    Board determined that the deputy sheriff's complaint
    was 'grievable,' proceeded to hear the merits of the
    complaint, and ultimately ruled in the deputy
    sheriff's favor, ordering that he be reinstated to
    the patrol division. Id. The sheriff then filed a
    complaint in the circuit court, seeking a judgment
    declaring that matters of job assignment, placement,
    and transfer are prerogatives of the sheriff and,
    thus, not subject to review by the Board and that
    the Board's decision was erroneous.        Id.   The
    circuit court ultimately entered a final judgment
    ruling that the Board's decision was arbitrary and
    capricious; the deputy sheriff and the Board
    appealed from that portion of the circuit court's
    order.    Id.    The circuit court had previously
    entered a partial summary judgment, finding that the
    deputy sheriff's complaint had been properly before
    the Board for its consideration; the sheriff cross-
    appealed from that portion of the judgment. Id.

         "In determining that, although the sheriff was
    the prevailing party below, the sheriff had the
    right to cross-appeal the circuit court's finding on
    the grievability issue, this court observed that
    'the court's decision could have a prejudicial
    effect on [the sheriff's] authority to assign and
    discipline subordinates in his department.' Id. at
    866.   This court considered the case of Price v.
    South Central Bell, 294 Ala. 144, 313 So. 2d 184
    (1975), in reaching its conclusion as to that matter

                            10
1130393

    in Bailey.1 In Price, the prevailing party below and
    the appellee before the Alabama Supreme Court
    attempted to circumvent the decision reached on the
    merits in its favor in the circuit court and to
    avoid a potentially unfavorable decision on appeal
    by arguing that the action should have been
    dismissed because the appellant had failed to
    prosecute the action in the name of the real party
    in interest. 294 Ala. at 150, 313 So. 2d at 189.
    The Alabama Supreme Court explained that '[i]f an
    appellee wishes to have rulings of the trial court
    adverse to it reviewed, an appellee must either take
    a cross-appeal or cross-assign errors upon the
    record brought up by appellant.' Id.

         "This court determined in Bailey that the
    sheriff merely had the right to cross-appeal, not to
    initiate an independent appeal on the grievability
    issue.    The main opinion in the present case
    improperly expands that determination to allow for
    an independent appeal for appellants who are the
    prevailing parties in the circuit court.         The
    reliance on Price by this court in Bailey supports
    the assertion that the sheriff in Bailey, and TRI in
    the present case, would not have standing to bring
    an independent appeal because they were the
    prevailing party in the lower court.

         "In Hollywood Mobile Estates, Ltd. v. Seminole
    Tribe of Florida, 641 F.3d 1259, 1265 (11th Cir.
    2011), cited in Alabama Department of Environmental
    Management v. Friends of Hurricane Creek, [114 So.
    3d 47 (Ala. Civ. App. 2012)], ... the Eleventh
    Circuit Court of Appeals observed:

          "'"'[W]e should not speculate concerning
          the existence of standing'" because we
          "'lack[] the power to create jurisdiction
          by embellishing a deficient allegation of
          injury.'" DiMaio v. Democratic Nat'l Comm.,
          520 F.3d 1299, 1301 (11th Cir. 2008)


                              11
1130393

          (quoting Elend v. Basham, 471 F.3d 1199,
          1206 (11th Cir. 2006)).'

    "TRI filed the present appeal to this court on April
    26, 2010. ARA filed an appeal of the Commission's
    decision to the Montgomery Circuit Court on May 26,
    2010. Thus, at the time TRI filed its appeal, no
    appeal by ARA of the Commission's decision in favor
    of TRI was pending.     As a result, any purported
    damage to TRI as a result of its potentially being
    required to defend an appeal by ARA was only
    speculative, not concrete, at the time TRI filed its
    appeal.    In accordance with the instruction of
    Hollywood Mobile Estates, it would be error to
    speculate so as to bestow TRI with standing to
    appeal in this case.2

         "With regard to TRI's argument, and the main
    opinion's agreement therewith, that, had the
    Commission determined that ARA did not have
    standing, TRI would not have been required to
    undergo further litigation and incur expenses in
    addressing the merits of the issuance of the permit,
    ___ So. 3d at ___, I note that, under such
    circumstances, ARA could appeal the Commission's
    decision that it did not have standing, causing TRI
    to undergo further litigation, including costs and
    time.   TRI's argument is circular; to accept its
    argument as the main opinion has done would allow
    any prevailing party to claim as damage the
    possibility of additional time and expense in
    defending an appeal and/or further litigation by the
    opposing party in any action.      Indeed, had the
    Commission determined that ARA did not have
    standing, TRI might have been required to take on
    the additional time and expense of defending an
    appeal   of   that   decision   by  ARA   as   well.
    Accordingly, TRI does not have standing to
    independently appeal a decision wholly in its favor.

         "The main opinion also agrees with TRI 'that the
    Commission's ruling weakens procedural protections

                             12
1130393

    against challenges to any permits TRI might require
    for future operations.' ___ So. 3d at ___. Again,
    the only support for that statement is grounded in
    Bailey, which I have distinguished above.       TRI
    offered no further citation to authority in support
    of that assertion. ...

         "Because I believe the main opinion improperly
    allows TRI to bring an independent appeal,
    misconstruing Bailey, and because I believe TRI, as
    a prevailing party below does not have standing to
    bring this appeal, I would dismiss TRI's appeal.

    "____________________

         "1This court also cited Katz v. Red Top Sedan
    Service, Inc., 136 So. 2d 11 (Fla. Dist. Ct. App.
    1962). In that case, however, the appellants had
    been successful in the circuit court, but assigned
    errors based on their assertion that the damages
    awarded had been too minimal.      Id.   Thus, the
    decision in that case has no bearing on the
    considerations at issue in the present case.

         "2See also ACS Enters., Inc. v. Norristown
    Borough Zoning Hearing Bd., 659 A.2d 651, 654 (Pa.
    Cmwlth.   Ct.   1995)   ('[A]   prevailing   party's
    disagreement with the legal reasoning or basis for
    a decision does not amount to a cognizable
    aggrievement necessary to establish standing. ...
    [T]he mere possibility of future litigation does not
    satisfy the requirement that to be considered an
    aggrieved party, the party's interest must be
    immediately affected by a decision.')."

Tuscaloosa     Resources,   ___   So.   3d   at   ___   (Moore,   J.,

dissenting).    Judge Moore properly concluded that TRI did not

have standing to file an independent appeal from the judgment

entered in TRI's favor.

                                  13
1130393

                         Conclusion

    Based on the foregoing, the judgment of the Court of

Civil Appeals is reversed and the case remanded to that court

for proceedings consistent with this opinion.

    REVERSED AND REMANDED.

    Stuart, Bolin, Main, Wise, and Bryan, JJ., concur.

    Moore, C.J., and Murdock and Shaw, JJ., concur in the

result.




                             14
1130393

MURDOCK, Justice (concurring in the result).

    I     agree   with   Judge   Moore's,   and    therefore   the   main

opinion's,    understanding      of    Personnel   Board   of Jefferson

County v. Bailey, 475 So. 2d 863 (Ala. Civ. App. 1985), and

why it fails to support the proposition that a prevailing

party in a case can file an appeal independent of an appeal by

the losing party.2       I am concerned, however, by the manner in

which Judge Moore and this Court in the main opinion both use

"standing" terminology to refer to an aggrieved party's right

to appeal.    I believe this moniker presents the potential for


    2
     I would stop short of the notion expressed in Justice
Shaw's special writing that, even in the absence of an appeal
by the deputy sheriff of the circuit court's ultimate decision
that he was not entitled to reinstatement, there was "nothing
preventing Sheriff Bailey from filing an independent appeal
from the adverse judgment against him in the declaratory-
judgment action" regarding the proper role of the Jefferson
Personnel Board. ___ So. 3d at ___ (Shaw, J., concurring in
the result). I believe it fairly could be questioned whether,
had the deputy acquiesced in the circuit court's decision
reversing the personnel board's action on its merits, there
would have continued to be a present and actual controversy of
the nature contemplated by the Declaratory Judgment Act, §
6–6–220 et seq., Ala. Code 1975, or the requirement of an
ongoing "case or controversy" under Art. VI, § 139, Alabama
Constitution 1901, for the continuation of an appeal. See Ex
parte Valloze, 142 So. 3d 504, 508 and n.2 (Ala. 2013).    See
also Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d
220, 223 (Ala. 2003) ("For a declaratory-judgment action to
withstand a motion to dismiss there must be a bona fide
justiciable controversy that should be settled.").
                                      15
1130393

confusion with the concept of, and the prerequisites for, the

"standing" to sue that so often has drawn the attention of

this Court in recent years.

    Indeed, this potential appears to be realized to some

extent even in Judge Moore's dissenting opinion. In a portion

of Judge Moore's dissent quoted by the main opinion, he states

that "'any purported damage to [Tuscaloosa Resources, Inc.

("TRI"),] as a result of its potentially being required to

defend an appeal by [Alabama Rivers Alliance and Friends of

Hurricane Creek (collectively "ARA")] was only speculative,

not concrete, at the time TRI filed its appeal.'"       ___ So. 3d

at ___ (quoting Tuscaloosa Res., Inc. v. Alabama Dep't of

Envtl. Mgmt., [Ms. 2120432, Oct. 4, 2013] ___ So. 3d ___, ___

(Ala.   Civ.   App.   2013)   (Moore,   J.,   dissenting)).   This

statement implies that, but for the timing of things (the fact

that ARA had not yet filed its own appeal when TRI attempted

to file its appeal), the litigation costs and time that TRI

would incur in defending an appeal by ARA should be considered

a form of "injury" that would be relevant to a "standing"-to-

appeal analysis.      I find this implication to be contrary to

the view embodied in the next paragraph of Judge Moore's


                                 16
1130393

writing (with which I fully agree) that the time and expense

of defending an appeal brought by an opposing party is not the

type of injury that informs a "standing" analysis. Tuscaloosa

Resources,   ___    So.   3d   at   ___       (Moore,     J.,   dissenting).

Standing is a concept concerned with substantive rights and

injuries, not appellate-litigation time and costs.

    The "standing" commonly addressed by this Court is a

concept that speaks to whether a litigant has the requisite

personal, concrete interest to invoke the aid of the courts in

the first place, i.e., to file a complaint commencing an

action.   TRI, or a litigant in its position, does not lose

whatever personal, concrete interest it had at the outset of

the litigation merely by virtue of prevailing in the initial

adjudication   of   the   dispute        in   a   lower    court   or   other

tribunal; until such time as the adjudication of the dispute

is at an end by virtue of the exhaustion of, or lack of proper

invocation of, the appellate process, such a party has as much

of an interest in relation to the dispute as it always had

(and even then has what we normally think of as "standing" to

seek enforcement of the judgment in its favor).




                                    17
1130393

    Although they may be somewhat analogous, the restraining

principle at issue here and the issue of "standing" are two

different things. See generally Joan Steinman, Shining a Light

in a Dim Corner: Standing to Appeal and the Right to Defend a

Judgment in the Federal Courts, 38 Ga. L. Rev. 813 (Spring

2004); 15A Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3902.1 (2d ed. 1992).

The term "standing to appeal," which admittedly has been used

by federal courts, is in actuality merely a way of referring

to a statutorily granted "procedural right" to have some

higher court conduct some further review of one's case.

         "Congress has vested appellate jurisdiction in
    the courts of appeals for review of final decisions
    of the district courts. 28 U.S.C. § 1291.
    Ordinarily, only a party aggrieved by a judgment or
    order of a district court may exercise the statutory
    right to appeal therefrom. A party who receives all
    that he has sought generally is not aggrieved by the
    judgment affording the relief and cannot appeal from
    it.    Public Service Comm'n v. Brashear Freight
    Lines, Inc., 306 U.S. 204 (1939); New York Telephone
    Co. v. Maltbie, 291 U.S. 645 (1934); Corning v. Troy
    Iron & Nail Factory, 15 How. 451 (1854); 9 J. Moore,
    Federal Practice ¶ 203.06 (2d ed. 1975). The rule
    is one of federal appellate practice, however,
    derived from the statutes granting appellate
    jurisdiction and the historic practices of the
    appellate courts; it does not have its source in the
    jurisdictional limitations of Art. III[, U.S.
    Const.]."


                             18
1130393

Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333-34 (1980)

(emphasis added).3

    That said, I agree with the main opinion to the extent it

can be read as standing for the proposition that TRI was the

prevailing party before the Commission and therefore did not

have the "right" to file an appeal.       Further, of course, even

with the subsequent filing of an appeal by ARA, TRI had no

right to "piecemeal" to some different "appellate" tribunal --

i.e., other than one to which ARA had properly appealed -- its

request   for   consideration   of   an   alternative   ground   for

upholding the lower tribunal's decision (which is what ARA's

alleged lack of "standing" to sue would have been in this case

had it been meritorious).   Nor could TRI "piecemeal" a cross-

appeal (if it had a basis for one, which, unlike the sheriff

in Bailey, I do not believe it does), to some "appellate"

tribunal other than the one in which the losing party properly

filed its appeal.




    3
      If there is any constitutional constraint on the ability
of a prevailing party to appeal in the absence of an appeal by
the losing party, it might be the loss of a continuing "case
or controversy" as a result of the loss of an adverse party.
                                19
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SHAW, Justice (concurring in the result).

     I am not convinced that the decision relied upon by the

Court of Civil Appeals, Personnel Board of Jefferson County v.

Bailey, 475 So. 2d 863 (Ala. Civ. App. 1985), supports that

court's decision.     Specifically, the cross-appellant in that

case, Sheriff Bailey, had filed a declaratory-judgment action

seeking a determination whether the appellant, the Personnel

Board of Jefferson County ("the Board"), had the power to

overrule his personnel decision.            He also filed what was

deemed     as   a   separate    common-law         certiorari    petition

challenging the merits of the Board's holding that overruled

his personnel decision.

     Sheriff Bailey first received a nonfinal adverse judgment

on   the   declaratory-judgment       action      and   then   also   later

received a favorable judgment on the certiorari petition. The

Board appealed from the judgment against it on the certiorari

petition, and Sheriff Bailey cross-appealed from the adverse

judgment against him on the declaratory-judgment action. Even

if the Board had filed no appeal, I see nothing preventing

Sheriff Bailey from filing an independent appeal from the

adverse    judgment   against   him    in   the    declaratory-judgment


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action.   The analysis in Bailey, which focused on whether

Sheriff Bailey could appeal from a favorable judgment, was

misplaced--he was not appealing the favorable judgment on the

certiorari petition. I see no support in Bailey for the Court

of Civil Appeals' decision in the instant case on the issue

whether a party may appeal from a favorable judgment.

    Both the Court of Civil Appeals' decision in the instant

case, as well as Judge Moore's dissenting opinion, which is

quoted at length in the main opinion, rely on the test for

standing found in Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992).   In   my   dissenting   opinion   in   Ex   parte   Alabama

Educational Television Commission, [Ms. 1111494, Sept. 27,

2013] ___ So. 3d ___ (Ala. 2003), I rejected the application

of Lujan in situations other than general constitutional

challenges, especially when the legislature provides a cause

of action and subject-matter jurisdiction by statute.

    This case does not present a general constitutional

challenge. Further, the legislature, in Ala. Code 1975, § 41-

22-20(a), has provided Tuscaloosa Resources, Inc., with the

right to appeal to the trial court when it is "aggrieved" by

a decision of the Environmental Management Commission ("the


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Commission").   I agree with the portion of Judge Moore's

dissent, quoted in the main opinion, demonstrating that any

"purported damage" to TRI by the Commission's decision is only

speculative and based on conjecture.   I thus do not believe

that TRI was "aggrieved" by the Commission's decision for

purposes of § 41-22-20(a).




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