                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-3331
                                     ___________

Robert Shain; James Sheetz,              *
                                         *
            Plaintiffs/Appellants,       *
                                         *
      v.                                 *
                                         *
Ann M. Veneman, Secretary of             *   Appeal from the United States
Department of Agriculture; Gilbert       *   District Court for the Southern
Gonzalez, Jr., Undersecretary of         *   District of Iowa.
Agriculture for Policy and Planning;     *
David Dowdy, Rural Development           *
Specialist,                              *
                                         *
            Defendants/Appellees.        *
                                         *
_____________________                    *
                                         *
City of Kinross, Iowa; Regional          *
Utility Service Systems,                 *
                                         *
            Amici on Behalf of           *
            Appellees.                   *

                                     ___________

                              Submitted: April 12, 2004
                                 Filed: July 22, 2004
                                  ___________

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
                         ___________
BYE, Circuit Judge.

       Robert Shain and James Sheetz brought this action for declaratory and
injunctive relief under the Administrative Procedure Act (APA), alleging the United
States Department of Agriculture (USDA) would violate federal law by financing the
building of a sewage-treatment plant on a flood plain near the property Mr. Shain
owns and land Mr. Sheetz rents and farms outside the city of Kinross, Iowa. The
district court1 granted the government's2 motion to dismiss for lack of standing and
dismissed the government's alternative motion for summary judgment as being moot.

       On appeal, the plaintiffs argue the treatment plant increases the risk of flooding
on their lands and they therefore possess standing to sue because they face an
imminent injury traceable to the government's conduct and redressable by a
mandatory injunction to dismantle the plant. We agree with the district court the
plaintiffs failed to allege a cognizable injury, and we therefore affirm on that basis
without reaching other justiciability issues.

                                            I

      In 1997, the City of Kinross had no sanitary sewage treatment system, and
sewage water from private septic systems flowed into a common drain that emptied
into Smith Creek. After a receiving a complaint from the state of Iowa about the



      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
      2
        Plaintiffs sued Ann M. Veneman, the Secretary of Agriculture, and others in
their capacity as officials in the USDA. For the sake of simplicity, we refer to the
defendants collectively as "the government."

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discharge from one resident's septic tank, Kinross studied the possibility of building
a community sewer system.

      In 2000, Kinross and the Regional Utility Service System (RUSS), an
intergovernmental agency, entered into an agreement pursuant to Iowa law whereby
RUSS agreed to finance, construct, and jointly maintain a $585,000 sewer system
serving forty-two users in rural Kinross. To this end, RUSS secured in principle a
$128,500 loan and a $367,500 grant from the USDA.3

      On June 19, 2002, Kinross condemned 4.74 acres of land to build two retention
ponds, or lagoons, for the treatment facility. The local compensation commission
awarded $21,500 in damages to the landowners and $100 to Mr. Sheetz as a tenant.
When Mr. Sheetz later unsuccessfully appealed the award in state court, he did not
challenge the taking on environmental grounds.

       The lagoons were finished and became fully operational in March 2003. They
are located on a 100-year flood plain for an unnamed tributary of Smith Creek. The
tributary runs through land Mr. Sheetz rents and farms adjacent to the lagoons, and
Mr. Shain owns farmland 1,000 feet to one-half mile4 down stream.

      On December 24, 2002, Mr. Shain filed a complaint in federal district court
challenging the USDA's funding of the project. Following the government's motion

      3
        The USDA has yet to disburse the grant. When the plaintiffs filed this lawsuit,
the USDA decided to withhold release of the money pending the outcome of the
litigation. Kinross and RUSS have filed an amicus brief in which they explain they
completed the project by securing other loans. As a result, the lawsuit has forced
Kinross to pass on the costs of interest payments to customers, whose monthly service
bills have risen from roughly $24 to $51.
      4
       The parties dispute the exact distance separating the lagoons from Mr. Shain's
property. The distance is not controlling.

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to dismiss for lack of standing, Mr. Shain amended the complaint to include Mr.
Sheetz as a plaintiff. On May 27, 2003, the government filed an amended motion to
dismiss and for summary judgment, once again contesting the standing to sue.

       In their complaint, the plaintiffs alleged the USDA would violate federal law
by funding the project without requiring Kinross to participate in the National Flood
Insurance Plan, as required by the National Environmental Policy Act (NEPA), 42
U.S.C. § 4106(a), and without considering alternatives to avoid adverse effects and
incompatible development in a designated flood plain, as required by Executive Order
11988. The district court dismissed the complaint, concluding the plaintiffs lacked
standing because they had alleged a speculative or conjectural injury, or alternatively,
because the alleged injury was not redressable by judicial relief. Without reaching
other issues (redressability, ripeness), we affirm for the plaintiffs' failure to plead a
cognizable injury.

                                           II

      The court reviews de novo a district court's dismissal for lack of standing,
accepting as true all of the complaint's material allegations and construing the
complaint in favor of the complaining party. Gardner v. First American Title Ins. Co.,
294 F.3d 991, 993 (8th Cir. 2002).

       The standing doctrine serves to limit federal jurisdiction to cases and
controversies as required by Article III of the United States Constitution. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559-61 (1992). A party invoking federal
jurisdiction has the burden of establishing standing, Schanou v. Lancaster County
Sch. Dist., 62 F.3d 1040, 1045 (8th Cir. 1995), by alleging and eventually proving he




                                          -4-
has suffered an injury-in-fact traceable to the defendant's challenged action and
redressable by the court's favorable decision.5 Lujan, 504 U.S. at 560-561.

       The district court correctly concluded the complaint in this case failed to allege
a cognizable injury-in-fact. For purposes of standing, a plaintiff's injury must consist
of an invasion of a legally protected interest which is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical. Id. The district court
held the plaintiffs failed to allege even an imminent injury because the occurrence of
a 100-year flood is by definition speculative and unpredictable. As a matter of law,
we agree.

      In the district court, the plaintiffs alleged they faced two imminent injuries in
the event of a 100-year flood. First, effluent from the lagoons will spill onto and
contaminate the land when a flood exceeds the height of the lagoons' embankments.
Second, the embankments will displace flood waters and increase the risk of flooding
on their property. Probably because the government presented undisputed evidence
a flood could not reach even the base of the embankments, the plaintiffs have
apparently abandoned the contamination argument on appeal.

       Instead, the plaintiffs advance the displacement argument alone, essentially
contending the word "imminent" does not mean immediate but only certain. They
reason the 100-year designation means a flood will certainly occur, albeit potentially
many years from now. When such a flood occurs, the embankments will surely
displace water, leading to an increased risk of flooding on the plaintiffs' lands. We
detect several problems with this argument as a basis for conferring standing.


      5
        A plaintiff may also be denied standing, even if he meets the Article III
standing requirements, if he runs afoul of certain judicially-constructed prudential
limits on standing. These are not at issue here because the plaintiffs fail to meet even
the irreducible constitutional requirements.

                                          -5-
       First, the plaintiffs must establish they will suffer the imminent injury. If the
possibility of a 100-year flood is remote in the abstract, the possibility the flood will
occur while they own or occupy the land becomes a matter of sheer speculation.
Indeed, one wonders whether any of the parties (or the court) in this case will be alive
the next time a 100-year flood occurs upon the land. Second, the allegations in the
complaint strike us as vague and conclusory; they only generally underscore the
obvious fact the embankments will displace a certain volume of water. Left to
conjecture are the questions whether the marginal rise in the water level will move
in the direction of the plaintiffs' land, reach the property, and cause cognizable harm
which would not have occurred absent the lagoons. Finally, the 100-year label, as a
term of art, designates lands most immune from flood damage. If the plaintiffs have
alleged a cognizable injury, then as practical matter, any plaintiff who conceivably
could be harmed by a defendant's conduct would possess standing to sue in federal
court. For these reasons, we conclude the plaintiffs have failed to allege a cognizable
injury, and we hold they lack standing to sue the government in this case.

      The plaintiffs cite several circuit cases for the proposition that a heightened risk
of future harm is a cognizable injury. A close reading of these cases, however,
reveals the circuits have recognized only an increase in risk sufficient to take the
probability of harm out of the realm of the hypothetical and speculative. To illustrate,
we will examine the two cases that most strongly support the plaintiffs' argument.

       In Village of Elk Grove Village v. Evans, 997 F.2d 328 (7th Cir. 1993), the
plaintiffs were concerned the erection of a radio tower on a flood plain would limit
the creek's drainage area and increase the risk of flooding. The court held the
plaintiffs possessed standing to sue, declaring in dicta "even a small probability of
injury is sufficient to create a case or controversy, to take a suit out of the category
of the hypothetical. . . ." Id. at 329.




                                           -6-
       In our mind, Elk Grove is easily distinguishable from this case. There, the
flood plain was a common flood area, which continually imposed sandbagging and
other flood-control costs on the Village of Elk Grove. Thus, the Village had a direct
stake in ensuring the defendant's conduct did not aggravate a known and predictable
danger, even if the marginal increase in risk defied calculation. Here, in contrast, the
danger of the flood itself is remote and improbable. To whatever extent the lagoons
increase the theoretical risk of flooding on the plaintiffs' property, they will do so
only if the remote risk of a 100-year flood first materializes while the plaintiffs have
a property interest in the land.

       In Mountain States Legal Found. v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996),
the court conferred standing on the plaintiffs who challenged the Forest Service's plan
to prohibit logging on a national forest. The plaintiffs established the plan would
increase the likelihood of a catastrophic fire by permitting fuel to accumulate in dead
trees. Id. at 1234-35. The analogy between Glickman and the instant case, of course,
is flawed. There, the defendant's conduct directly and measurably increased the
chances a fire would start; the defendant's conduct was not merely an intervening
factor that could aggravate an independently occurring natural disaster. For this case
to become truly analogous to Glickman, the lagoons would have to increase the
probability of a 100-year flood itself.

      We conclude the jurisprudence of our sister circuits is consistent with our
holding in this case.

                                          III

       For the foregoing reasons, we affirm the district court's dismissal of the
plaintiffs' complaint for lack of standing.
                        ______________________________



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