                           No. 96-1179




WMX TECHNOLOGIES, INC.; WASTE   *
MANAGEMENT OF MISSOURI, INC.;   *
KAHLE LANDFILL, INC.,           *
                                *
     Plaintiffs - Appellants    *
                                *   Appeal from the United States
     vs.                        *   District Court for the
                                *   Eastern District of Missouri.
GASCONADE COUNTY, MISSOURI;     *
WILFORD KALLMEYER; MICHAEL      *
MEYER; RAYMOND OCHSNER, their   *
capacities as Commissioners of *
the Gasconade County Commission;*
JOHN B. BERKEMEYER, in his      *
capacity as prosecuting attorney*
of Gasconade County; CHARLES    *
SCHLOTTACH,                     *
                                *
     Defendants - Appellees     *




                  Submitted: November 20, 1996

                        Filed:   January 27, 1997
Before MCMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge,
     and BOGUE,* Senior District Judge.

                           __________

BOGUE, Senior District Judge.


     Appellants WMX Technologies, Inc. (“WMX”), Waste Management
of Missouri, Inc. (“WMM”), and Kahle Landfill, Inc. (“Kahle”)
(collectively “Waste Management”) challenged the appellees
Gasconade County Commissioners’ (“County” or “Commissioners”)
enactment of a Solid Waste Management Ordinance claiming that
such was a violation of Waste Management’s substantive due
process rights, constituted an illegal bill of attainder, and
violated Missouri state law.    The district court1 dismissed Waste
Management’s substantive due process and bill of attainder claims
for failure to state a claim and refused to exercise jurisdiction
over the remaining state law claims.    Alternatively, the district
court indicated it would grant summary judgment on both the
substantive due process and bill of attainder claims.    We affirm.


                           BACKGROUND




     *The HONORABLE ANDREW W. BOGUE, Senior United States
     District Judge for the Western Division of the District
     of South Dakota, sitting by designation.
     1
      The HONORABLE GEORGE F. GUNN, United States District Judge
for the Eastern District of Missouri, Eastern Division.

                                 -2-
     The facts, as alleged by appellants, are as follows:    In
1990, Kahle obtained a permit from the Missouri Department of
Natural Resources (“DNR”) to operate a sanitary landfill on a ten
acre parcel in Gasconade County, Missouri.    In 1992, WMX acquired
a 160 acre parcel within which the 10 acre landfill is located.
Title to the property was transferred to WMM in March 1994.
Waste Management is currently the only solid waste collector
licensed by the DNR to operate a solid waste landfill in
Gasconade County.   The existing ten acre Kahle landfill is now
filled to its permitted capacity.     In June 1993 Waste Management
applied to the DNR for an operating permit to expand the existing
landfill to include an additional 51 acres within the 160 acre
parcel.   They expended in excess of $3 million in planning,
developing, and seeking a DNR permit for the proposed expanded
landfill in anticipation of obtaining a permit to operate the
site as a sanitary landfill for the deposit of solid waste,
construction and demolition waste, and special waste collected
from the counties, cites, and towns encompassing an eight county
area in Missouri - including Gasconade County.    In August 1993
and October 1993, the DNR held public hearings on Waste
Management’s application for expansion of the existing landfill.
Despite Waste Management’s offer of evidence showing the proposed
expansion site is well-suited for use as a sanitary landfill,
members of “Missourians for the Preservation of Water and the
Environment” (“MPWE”), a group formed to oppose the proposed
expansion, as well as other Gasconade County citizens attended




                                -3-
the October hearing and voiced strenuous opposition to the
proposed expansion.


     The record shows that in late 1993 or early 1994, the
commissioners began investigating the possibility of enacting an
ordinance regulating landfills.    Defendant Berkemeyer, the
prosecuting attorney of Gasconade County, was instructed to
investigate what types of ordinances were available.    Based upon
their consultations with civil engineer Ray Frankenberg and
attorney Berkemeyer, and upon sample ordinances, rules, and
regulations compiled by Berkemeyer from other Missouri Counties,
the Commissioners enacted the Gasconade County Solid Waste
Management Ordinance on December 12, 1994.    Three days later,
Waste Management filed the complaint in this action, asserting
that the ordinance was unconstitutional and illegal in several
respects under Missouri law.   Waste Management has never applied
for, nor have they ever been denied a permit from the County.
The ordinance was amended on July 26, 1995 and in its final form,
purports to regulate and restrict the storing, collecting,
transporting, processing, and disposing of solid, liquid,
hazardous, and special waste within Gasconade County by requiring
application to the Commissioners for a permit to operate a solid
waste disposal, processing storage site.


     Pursuant to Missouri Senate Bill 60, section 1, before the
DNR may approve a permit application, verification is required
from local governments that the entity and activity that are the




                                  -4-
subject of the application are in compliance with all applicable
“local zoning, building, and health codes, ordinances, and
orders.”   On December 7, 1995, the DNR denied Waste Management’s
application for a permit to operate the expanded landfill citing
Waste Management’s failure to comply with the local Gasconade
County ordinance’s permit requirements.


     After directing the parties to file cross-motions for
summary judgment, the district court granted the defendants’
motion to dismiss Waste Management’s substantive due process and
bill of attainder claims. The Court held in the alternative that
the defendants were entitled to summary judgment on both counts.
The court also declined to exercise supplemental jurisdiction
over Waste Management’s state law claims.   In dismissing Waste
Management’s substantive due process claim, the court held that
“plaintiffs have failed to allege facts sufficient to suggest
that the commissioners’ passage of the Amended Ordinance was
‘truly irrational.’”   Similarly, with respect to Waste
Management’s bill of attainder claim the court held that the
ordinance does not constitute an illegal bill of attainder
because it does not “single out” Waste Management, and the
ordinance is not punitive.


     On appeal, Waste Management argues that the district court
improperly applied the heightened “truly irrational” standard to
Waste Management’s complaint and should have found that the
Commissioners’ enactment of the ordinance without authority to do




                                -5-
so was arbitrary and capricious.    Alternatively, appellants argue
the substantive Due Process Clause was violated when the
Commissioners allegedly ceded their legislative responsibilities
to others and enacted an ordinance solely to pacify the vocal
opposition to the expansion plan.      Appellants also maintain the
district court erred in dismissing their bill of attainder claim
as all required components of a bill of attainder claim were
properly pled.


                             DISCUSSION


     We review the district court’s dismissal de novo. Goss v.
City of Little Rock, 90 F.3d 306, 308 (8th Cir. 1996).     In
considering a motion to dismiss, the court must construe the
complaint liberally and assume all factual allegations to be
true. Id.   Dismissal should not be granted unless it appears
beyond a reasonable doubt that the plaintiff can prove no set of
facts that would entitle relief. Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).


                    I.   Substantive Due Process


     Initially we note that Waste Management has brought a facial
substantive due process claim and that they therefore have the
burden of showing that “any application of [the ordinance] is
unconstitutional.” Christopher Lake Development Co. v. St. Louis
County, 35 F.3d 1269, 1275 (8th Cir. 1994).     In this context, the




                                 -6-
ordinance is unconstitutional if it is arbitrary, capricious and
not rationally related to a legitimate public purpose.1   See,
e.g., Pennell v. City of San Jose, 485 U.S. 1, 11, 108 S.Ct. 849,
857, 99 L.Ed.2d 1 (1988)(a land use ordinance is unconstitutional
under Due Process Clause only if “arbitrary, discriminatory, or
demonstrably irrelevant to the policy the legislature is free to
adopt”).


           Waste Management does not argue that the County has no
legitimate interest in regulating landfills for the safety,
health, and welfare of its citizens.2   Rather, they argue that




     1
      A “facial” substantive due process challenge to a land use
ordinance bears important differences to an “as applied”
substantive due process challenge to the same ordinance. As
noted, when one makes a “facial” challenge, he or she argues that
any application of the ordinance is unconstitutional. He or she
must show that, on its face, the ordinance is arbitrary,
capricious, and not rationally related to a legitimate government
interest. When one makes an “as applied” challenge, he or she is
attacking only the decision that applied the ordinance to his or
her property, not the ordinance in general. In this context, he
or she must show that the government action complained of (i.e.
denying a permit application) is “truly irrational.” See Eide v.
Sarasota County, 908 F.2d 716 (11th Cir. 1990)(discussing
differences between “facial” and “as applied” challenges).
     2
      Section 2.5 of the Gasconade County Solid Waste Management
Ordinance states in part: “No site or facility shall be
considered or approved by the commission unless . . . (2) [t]he
project [is] designed, located and proposed to be operated so
that the public health, safety and welfare will be protected.”

                                -7-
the means3 by which the County seeks to further that interest are
arbitrary, capricious, irrational, and wholly unrelated to its
legitimate interest.   Waste Management maintains the ordinance
violates the substantive Due Process Clause of the Fourteenth
Amendment for either of two reasons:   First, they claim the
ordinance is unconstitutional because the Commissioners’ act of
allegedly passing the ordinance without authority (that is, the
ordinance lacked basis in state law) was “truly irrational.”4




     3
      The ordinance provides in part: (1) that the height of the
landfill shall not exceed 25 feet above the highest natural
ground elevation within one-half mile of the site; (2) that the
site will not be approved unless the project is necessary for the
public convenience and will not substantially diminish the value
and present use of other property in the neighborhood; and (3)
that applicants must provide financial assurance instruments in
the amount of $5 million as a precondition to receiving solid,
special and demolition waste, which instruments would cover a
post-closure care period of 50 years. These are the provisions
of the ordinance which Waste Management argues are particularly
objectionable and irrational.
     4
      Appellants also argue that the district court erroneously
applied the “truly irrational” standard because that standard is
reserved for substantive due process claims in the zoning
context. They argue that because the County has no zoning
authority -- having failed to adopt the required zoning plan --
it did not pass a valid zoning ordinance and cannot avail itself
of the heightened scrutiny this court imposes upon plaintiffs who
challenge the actions of local zoning authorities. However, the
Commissioners’ have independent statutory authority to pass the
ordinance in question. (See FN5 infra). We think the distinction
Waste Management draws between land use regulations enacted
pursuant to a comprehensive zoning plan and land use regulations
enacted pursuant to a statutory grant of authority is one without
a difference. The district court properly applied the “truly
irrational” standard to Waste Management’s challenge of the
Commissioners’ enactment of the ordinance.

                               -8-
Alternatively, assuming the commissioners had authority to enact
the ordinance, Waste Management claims the ordinance is
arbitrary, capricious, and irrational because: (1) by relying on
the expert advice of an attorney and an engineer, the
Commissioners allegedly abdicated their legislative
responsibilities; and (2) the commissioners passed the ordinance
solely to assuage the unreasoned fears of the electorate without
due regard to the state waste disposal laws.


     Initially, Waste Management argues the ordinance is
unconstitutional because the Commissioners’ enactment of the
ordinance was “truly irrational” where they allegedly lacked the
authority to enact the ordinance.    Yet, it is clear the
Commissioners have statutory authority to adopt ordinances
regulating land use with respect to solid waste disposal that are
“equal to or more stringent than” the state solid waste disposal
laws -- provided they are not “substantially inconsistent” with
the state solid waste disposal laws.5    Appellants argue,


     5
      Sections 260.200 through 260.245 of the Revised Statutes of
Missouri comprise the solid waste disposal laws of that state.
Section 260.215.2 authorizes Missouri counties to:

     . . . adopt ordinances or orders, rules, regulations,
     or standards for storage, collection, transportation,
     processing or disposal of solid wastes which shall be
     in conformity with the rules and regulations adopted by
     the [DNR] for solid waste management systems. Nothing
     in Sections 260.200 to 260.245 shall usurp the legal
     right of a . . . county from adopting and enforcing
     local ordinances . . . equal to or more stringent than
     the rules or regulations adopted by the department
     pursuant to sections 260.200 to 260.245. Any county
     . . . which adopts orders or ordinances for the
     management of solid wastes shall ensure that such
     ordinances are not substantially inconsistent with the

                               -9-
however, the ordinance is so “substantially inconsistent” with
the state solid waste laws, that § 260.215.5 preempted the
ordinance and it was therefore passed in violation of state law.
Thus, they claim, the Commissioners’ passage of the ordinance
contrary to state law violates the substantive Due Process
Clause.6   We disagree.


     In Chesterfield Development Corp. v. City of Chesterfield,
963 F.2d 1102 (8th Cir. 1992) the district court dismissed a
development corporation’s lawsuit brought under 42 U.S.C. § 1983
for failure to state a claim where the corporation alleged the




     requirements of sections 260.200 and [sic] 260.245 and
     the rules and regulations promulgated pursuant thereto.

Rev.Stat.Mo. § 260.215.2 (emphasis added).
     6
      Although this aspect of appellants substantive due process
challenge is not technically an “as applied” challenge (the
ordinance has never been enforced against Waste Management), they
nevertheless are challenging the action of the Commissioners in
passing an allegedly invalid ordinance. Thus the “truly
irrational” standard is appropriate.

                              -10-
city council violated the corporation’s substantive due process
rights by enacting an invalid zoning ordinance and enforcing it
against the corporation.    There, the circuit court held “in
zoning and land use disputes with local governments, the
plaintiff must allege something more than that the government
decision was arbitrary, capricious, or in violation of state law
. . . . [S]ubstantive due process claims should be limited to
‘truly irrational’ governmental actions.” Id. at 1104 (citing
Lemke v. Cass County, Nebraska, 846 F.2d 469 (8th Cir. 1987)(en
banc)(per curiam)(Arnold, J., concurring).   As an illustration of
a “truly irrational” ordinance, the Chesterfield court described
it as one “applying only to persons whose names begin with a
letter in the first half of the alphabet.” Chesterfield, 963 F.2d
at 1104; See also Anderson v. Douglas County, 4 F.3d 574 (8th
Cir. 1993), cert. denied, 510 U.S. 1113 (1994)(applying “truly
irrational” standard to federal substantive due process claim).
Waste Management’s claims that the Commissioners enacted an
ordinance “substantially inconsistent” with the state solid waste
disposal law in violation of Rev. Stat. Mo. § 260.215.2 are
merely claims of state law violations.   A violation of state law
remains only a violation of state law and does not amount to the
kind of “truly irrational” governmental action which gives rise
to a substantive due process claim. Chesterfield, 963 F.2d at
1105.   Such is a matter primarily of concern to the state and is
better addressed to state courts and administrative bodies. Id.
at 1104. Thus, even if, as appellants contend, the ordinance is
substantially inconsistent with state law and therefore without




                               -11-
basis in state law, appellants nevertheless fail to state a
federal substantive due process claim and dismissal was proper.


     Alternatively, assuming the Commissioners had valid
authority to pass the ordinance, Waste Management argues that the
arbitrary, capricious and irrational nature of the ordinance is
manifested in several ways.   They allege that the Commissioners
“initiated the ordinance process based on the ardent but
unreasoned concerns of ‘safety’ voiced by the organized
opposition to the expanded landfill.”   They also contend that the
commissioners abdicated their legislative responsibilities to the
opposition group and to attorney Berkemeyer and civil engineer
Frankenberg by relying on their expert advice in drafting the
ordinance.   Moreover, Waste Management argues that the ordinance
was passed without due regard to the state solid waste disposal
laws and that the Commissioners lacked any education, background,
or knowledge regarding landfills, geology, hydrology, and
financial statements and could not articulate how the ordinance
advances the safety or well-being of the citizens of Gasconade
County.   They argue that the ordinance is arbitrary and
unreasonable on its face because no scientific basis exists to
suggest that its provisions further any legitimate public
interest.    They also claim that the ordinance was prompted solely
by public opposition to their expansion plans and not by any
articulable legitimate health or safety issue, and that it was
enacted merely to “deep-six” their expansion plans.   As a result
of this process, they argue, the ordinance provisions ultimately




                                -12-
enacted were arbitrary and capricious and not related to a
legitimate public interest.


       The means by which an ordinance comes to pass, however, is
irrelevant to the question of whether the substance of the
ordinance is constitutionally infirm on its face. Smithfield
Concerned Citizens for Fair Zoning v. Town of Smithfield, 907
F.2d 239 (1st Cir. 1990).   Suing under 42 U.S.C. § 1983, the
plaintiffs in Smithfield brought a facial attack on a new zoning
ordinance claiming, inter alia, that the city violated their
substantive due process rights by enacting the ordinance. Id. at
241.   The ordinance in question transformed over one half the
land in the town into non-conforming uses and converted land
formerly zoned commercial or industrial into residential even
though residential use was allegedly incompatible with the
existing uses in the immediate vicinity. Id.    The plaintiffs
argued that the ordinance was “clearly arbitrary and
unreasonable, having no substantial relation to the public
health, safety, moral, or general welfare.”    Id.   They based
their claims of arbitrariness primarily on allegations that the
ordinance was not grounded in the necessary planning and
analysis, by and with the participation of experts in the field.
Id. at 245.    Moreover, the plaintiffs alleged that the goals and
ends of the ordinance “[were] not legitimate goals and [did] not
serve a legitimate governmental purpose.” Smithfield Concerned
Citizens for Fair Zoning v. Town of Smithfield, 719 F.Supp. 75,
82 (D.R.I. 1989).     They asserted that “the express and implied




                                -13-
intent” of the ordinance was “to exclude multifamily residences,
industry and commercial establishments and low or moderate income
housing [and] to prohibit growth and reduce the population of
Smithfield.” Id.   In affirming the district court’s dismissal of
plaintiffs’ complaint for failure to state a claim, the appeals
court held that “due process does not require a legislative body
to perform any particular studies or prepare any particular
analysis to justify its decisions.” Smithfield, 907 F.2d 245.
Legislative bodies are given broad latitude in their legislative
determinations, “and it is not the province of the courts to
monitor the inputs into each legislative decision.” Id.
Similarly, “the ‘true’ purpose of the ordinance, (i.e., the
actual purpose that may have motivated its proponents, assuming
this can be known) is irrelevant for rational basis analysis.”
Id. at 246.   In adjudicating facial substantive due process
challenges to a zoning or land use ordinance, we do not inquire
into the methods and motives behind its passage.   We ask only
whether a conceivable rational relationship exists between the
ordinance and legitimate governmental ends. Id. at 244.    If so,
the ordinance will stand.   We find as a matter of law that such
relationship exists in this case and thus hold that the district
court properly dismissed appellants’ substantive due process
claim for failure to state a claim.


                      II.   Bill of Attainder




                                -14-
     The Constitution provides that: “No State shall . . . pass
any Bill of Attainder.” U.S. Const. art. I, § 10, cl.1.       A bill
of attainder is “a law that legislatively determines guilt and
inflicts punishment upon an identifiable individual without
provision of the protection of a judicial trial.” Nixon v.
Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct.
2777, 2803, 53 L.Ed.2d 867 (1977); See also Ambassador Books &
Video v. Little Rock Arkansas, 20 F.3d 858, 865 (8th Cir. 1994),
cert. denied, 115 S.Ct. 186 (1994).     The district court found
that the ordinance neither singles out nor punishes Waste
Management for operating a landfill.    On appeal Waste Management
argues that the ordinance is an unconstitutional bill of
attainder because it was enacted specifically to punish them by
preventing their pursuit of a lawful business - expansion of the
existing landfill.   They maintain that because they were the only
entity permitted by the DNR to operate a sanitary landfill in
Gasconade County, and because they were the only entity that had
filed an application with the DNR to operate an expanded
landfill, the ordinance sufficiently singled them out enough to
trigger the Bill of Attainder Clause.    Waste Management also
argues that by imposing requirements far more onerous than those
dictated by state law, the ordinance is unduly burdensome and
excessive and constitutes a penalty in the form of barring Waste
Management from pursuing a lawful business.    We disagree.


     “The singling out of an individual for legislatively
prescribed punishment constitutes an attainder whether the




                               -15-
individual is called by name or described in terms of conduct
which, because it is past conduct, operates only as a designation
of particular persons.” Communist Party of the United States v.
Subversive Activities Control Board, 367 U.S. 1, 86, 81 S.Ct.
1357, 1405, 6 L.Ed.2d 625 (1961).     The ordinance in no way names
Waste Management as the target of its provisions.   Nor do we
agree that the ordinance designates Waste Management singularly
because it is the only entity which has operated a landfill in
the past and is the only entity currently pursuing a project for
which a permit is required under the ordinance.   An ordinance is
not made an attainder by the fact that the activity it regulates
is described with such particularity that, in probability, few
organizations will fall within its purview. Id. at 88, 81 S.Ct.
at 1406.   Rather than attaching to a specified organization, the
ordinance attaches to described activities in which an
organization may or may not engage. Id. at 86, 81 S.Ct. at 1405.
“Legislatures may act to curb behavior which they regard as
harmful to the public welfare, whether that conduct is found to
be engaged in by many persons or by one.” Id. at 88, 81 S.Ct. at
1406.   By requiring permits before one may collect, transport,
process, store, and dispose of solid waste in the county, the
ordinance in this case regulates certain activities which can
pose serious hazards to the public welfare.   It does not single
out Waste Management, and therefore can not be characterized as a
bill of attainder.




                               -16-
     Moreover, the ordinance is not punitive in nature.     There
are three necessary inquiries regarding whether the ordinance
inflicts forbidden punishment: an historical test, a functional
test, and a motivational test. Nixon, 433 U.S. at 473-78, 97
S.Ct. 2805-08; See also Selective Service System v. Minnesota
Public Interest Research Group, 468 U.S. 841, 847, 104 S.Ct.
3348, 3355, 82 L.Ed.2d 632 (1984).    Historically, bills of
attainder were used to impose punishment upon designated
individuals or groups in the form of:    death, imprisonment,
banishment, punitive confiscation of property, and bars to
participation in specific employments or vocations. Nixon, 433
U.S. at 473-74, 97 S.Ct. at 2805-06.    Waste Management maintains
that by limiting landfills to a final elevation of no more than
25 feet above the highest natural ground elevation within one-
half mile of the site, the ordinance will serve to “bar” them
from operating the expanded landfill “as designed”,7 and will
render the operation economically unfeasible.    However, “[s]o
long as the incidence of legislation is such that the persons who
engage in it . . . can escape regulation merely by altering the
course of their present activities, there can be no complaint of
attainder.” Communist Party, 367 U.S. at 88, 81 S.Ct. at 1406.
As the district court correctly noted, even though the effect of
the ordinance may be to derail Waste Management’s expansion
plans, it does not prevent them from operating a landfill in
Gasconade County.   Although appellants will not “escape




     7
      Waste Management had planned to raise the final elevation
of the landfill to a maximum of 136 feet.

                               -17-
regulation” altogether, they are not foreclosed from altering
their plans to come into compliance with the ordinance and
thereby obtain a permit to operate the landfill.   They are
therefore not barred from participation in their chosen business
pursuits; and they do not meet the historical test for punishment
under the Bill of Attainder Clause.


     Similarly, the ordinance is not functionally punitive
because, “when viewed in terms of the type and severity of
burdens imposed, [the ordinance] reasonably can be said to
further nonpunitive legislative purposes.” Nixon, 433 U.S. at
475-76, 97 S.Ct. at 2806-07.   As the district court correctly
observed:

     The Amended Ordinance on its face purports to regulate
     the handling of solid wastes and includes provisions
     designed to consider the impact of the permit
     applicant’s proposed operations on the health and
     safety [and welfare] of the community. Gasconade County
     Solid Waste Management Ordinance § 2.5. It requires
     permit applicants to supply the Gasconade County
     Commission with detailed information on the proposed
     activity involving the storing, collecting,
     transporting, processing or disposing of solid, liquid,
     hazardous or special waste within the county. Id.§ 2-4.
     It requires financial assurances to protect local
     parties who might be injured by the proposed
     activities. Id. § 4. In addition, it provides for
     limits on permit terms, periodic reviews, public
     notices and hearings, procedures for the revocation or
     suspension of permits and penalties for violations. Id.
     § 6, 8. The Amended Ordinance instructs aggrieved
     applicants of their appeal rights under Missouri law.
     Id. § 2.9.




                               -18-
Also, inasmuch as some of the Commissioners expressed concerns
for blowing dust and litter and the integrity of the subgrade
below the proposed landfill, the 25 foot height restriction can
be said to further a nonpunitive legislative purpose as well.       We
agree that the ordinance is quite onerous and perhaps much more
stringent than the state solid waste disposal laws.     However,
“[f]orbidden legislative punishment is not involved merely
because the ordinance imposes burdensome consequences.” Nixon,
433 U.S. at. 472, 97 S.Ct. at 2805.   Rather, the question is
whether the ordinance inflicts punishment within the
constitutional proscription against bills of attainder. Id.        In
this regard, we agree with the district court burdens placed on
permit applicants, in light of the legislative purposes behind
the ordinance of protecting health, safety, and welfare, are not
punishment as prohibited by the Bill of Attainder Clause under
the functional test.


     Finally, the ordinance is not punitive under the
motivational test.   Undoubtedly Waste Management’s application to
expand the existing landfill stirred the commissioners’ interest
in regulating landfill operations within their county.    However,
as the district court correctly noted, the fact that appellants’
expansion efforts turned the lawmakers’ attention to the issue of
local environmental regulation does not make any subsequent tough
environmental legislation a bill of attainder.   The Commissioners
have the authority to enact a solid waste disposal ordinance even
“more stringent than” the state solid waste disposal laws. Rev.




                               -19-
Stat. Mo. § 260.215.2.   That is precisely what they did.    There
is no evidence the Commissioners intended to punish Waste
Management by enacting the ordinance.   We agree with the district
court that Waste Management’s allegations do not rise to the
level of suggesting an intent to punish appellants for any past
wrongdoings.8 Nixon, 433 U.S. at 478, 97 S.Ct. at 2808.     Waste
Management’s bill of attainder was properly dismissed for failure
to state a claim.


     The order of the district court dismissing the complaint for
failure to state a claim and dismissing appellants’ state law
claims for lack of jurisdiction is affirmed.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




     8
      Indeed, appellants do not argue that the ordinance punishes
them for their past conduct in operating a landfill. Rather,
they claim the ordinance was designed to stop their plans for
future expansion of the landfill.

                               -20-
