Standing in the Ninth Circuit

Four Supreme Court cases, two in 1968 and two in 1970,¹ have drastically liberalized the law of standing, giving it a new, basic orientation.

Kenneth Culp Davis, The Liberalized Law of Standing, 37 U.Chi.L.Rev. 450, 450 (1970)

We submit that [the zone of interest test in Camp] does not establish a test separate and apart from or in addition to the [injury] test which the court first looked to in Camp.

Judge Trask in Sierra Club v. Hickel, 1 ELR 20015 (1970)

The law of standing as developed by the Supreme Court has become an area of incredible complexity. Much that the Court has written appears to have been designed to supply retrospective satisfaction rather than future guidance.

Judge Tamm in Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 at 861 (1970)

While environmental groups challenging federal administrative actions have overcome judicial obstacles to standing in most of the federal circuit courts of appeal, the Ninth Circuit stands fast. Not only to contradictions and ambiguities exist between the Ninth Circuit and other circuit courts, but they exist among district courts within the Ninth Circuit itself as well. There the situation is likely to remain in limbo until the Supreme Court, which has granted certiorari in Sierra Club v. Hickel, supra, chooses to resolve the standing issue with finality. See Sierra Club v. Hickel: Standing and the Supreme Court, 1 ELR 10002. See also 1 ELR 10017. Precedent suggests that the issue will ultimately be resolved in favor of the environmental groups, though the Court may also opt for the more restrictive view or, in Sierra Club v. Hickel, (now Morton) dodge the tough standing questions altogether.

Two recent Ninth Circuit district court decisions illustrate the confusion. On February 16, 1971, the U.S. District Court for the District of Oregon granted defendant's motion to dismiss in Citizens Committee for the Columbia River v. Resor, 1 ELR 20206. See also 1 ELR Dig.[15]. Plaintiffs, the court held, failed to establish standing under criteria enunciated by the Ninth Circuit in Sierra Club v. Hickel, supra, and Alameda Conservation Association v. California, 1 ELR 20097. Plaintiffs thereafter sought to amend their complaint to include the names of individuals who could properly allege injury in fact consistent with the Alameda holding. But on March 15, Judge Solomon ruled that because the existing plaintiffs had no standing, there was no one present in court who could be granted leave to amend.

Such metaphysics aside, plaintiffs in their initial complaint in Citizens Committee for the Columbia River would seem to have occupied the narrow area of standing not explicitly foreclosed to environmental [1 ELR 10059] groups within the Ninth Circuit by Sierra Club v. Hickel and Alameda. The action sought to void the Corps of Engineers' approval of the Portland Airport Expansion project in which the Port of Portland intended to dredge and fill more than 700 acres of the Columbia River, thereby allowing the Oregon Highway Commission to construct a portion of highway I-205, including a bridge over the Columbia River. Plaintiffs alleged that the permit granted by the Corps to the Port of Portland was void, because Congress has not consented to the construction of the project's dikes and causeways, as required by the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, 1 ELR 41141. See Citizens Committee for the Hudson Valley v. Volpe, 1 ELR 20001 (S.D.N.Y. 1969), 1 ELR 20006 (2d. Cir. 1970). As in the Hudson Valley case, plaintiffs alleged numerous violations of the "Parklands Statute" of the Transportation Act of 1966, 49 U.S.C. 1653(f), by the Secretary of Transportation, as well as violations of other federal statutes.

Unlike plaintiffs in Sierra Club v. Hickel and Alameda, plaintiffs in Citizens Committee for the Columbia River, including the Citizens Committee, Sierra Club, Washington State Sportsman's Council, Inc., Association of Northwest Steelheaders, and Washington Environmental Council, went beyond specific allegations of environmental harm and injury to individual members. Indeed, the organizations alleged that unless voided by the court, the project would damage their effectiveness in carrying out group purposes, impede their ability to obtain and maintain membership, and even jeopardize their status and continued existence. Clearly, the conservation organizations, by asserting direct injury to their underlying purposes, hoped to bring themselves under Mr. Justice Douglas' dictum in Data Processing, 397 U.S. 150, 154, that the legal interest necessary to support standing need not be economic in nature, but may be "aesthetic, recreational, or conservational" as well. Judge Solomon in dismissing the action chose not to explain precisely why Sierra Club v. Hickel and Alameda applied. But in holding that the two cases did apply, the court apparently relied upon the single common factual element uniting the three situations, i.e., the lack of allegations of property ownership or use by the conservation group litigants at or near the sites of the disputed projects.²

A contrary result on the issue of standing was reached by Judge Plummer on March 25, 1971 in Sierra Club v. Hardin (Tongass National Forest), 1 ELR 20161 (D.Alaska 1971). Here plaintiffs, Sierra Club, Sitka Conservation Society, and Carl Lane, a registered guide who conducts tours through part of Tongass Forest, sought to enjoin the sale of an estimated 8,740,000,000 board feet of timber and the grant of a patent to national forest land pursuant to an agreement between the Secretary of Agriculture and U.S. Plywood-Champion, Inc. The sale is the largest ever conducted by the Forest Service and covers an estimated 1,090,000 acres of land. Numerous violations by the Secretary were alleged in the complaint dealing with both environmental and non-environmental matters, including violations of the Multiple Use-Sustained Yield Act, 16 U.S.C. §§ 528, 529 (Supp.1970), and the Wilderness Act, 16 U.S.C. §§ 1131-1136 (Supp.1970), and failure to meet the investigative and reporting requirements of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4332, 1 ELR 41009. Upon motion by defendant U.S. Plywood-Chamption Paper, the case was designated a class action with plaintiffs representing all persons interested in the conservation, preservation and use of national parks, game refuges, forests, natural and scenic resources and wilderness, including the air, water, watersheds, wildlife, fish and all other aesthetic and recreational values of the Tongass National Forest in Alaska.

It was this very designation as a class action which the court seized upon in upholding plaintiffs' standing to use, distinguishing the Tongass National Forest situation from Sierra Club v. Hickel and Alameda, because "[T]he threat of harassment through consecutive lawsuits was effectively foreclosed in this litigation by the court's order designating this suit a class action."³

[1 ELR 10060]

The court next found "compelling" reasons for permitting the conservation groups to represent the interests of their members.

Any other rule would have the practical effect of preempting many meritorious actions, as one individual, or a small number of individuals, would have to sustain the entire financial burden of the lawsuit. Even if the action is brought under Rule 23, costs could only be assessed if the plaintiff were successful. The fact that a victory in suits of this nature usually does not result in an award of damages means that even if successful the attorney who initiates the suit will probably have to look to the parties of record for reimbursement. Few members of the general public will have the resources or courage to face such odds for the sake of vindicating a right to which all are entitled as a matter of law. 1 ELR 20165.

Judge Plummer tried mightly to square his holding with the parent Ninth Circuit decisions in Sierra Club and Alameda, noting that the conservation societies' assertion of "direct and obvious" injury sufficient to satisfy the "case and controversy" clause of Article III of the Constitution was satisfied by testimony indicating that "the aesthetic, recreational, and conservational interests of members of both organizations who utilize and enjoy the sale area are directly affected by the Secretary's decision." 1 ELR 20165. But it was precisely this divorce of membership interests from the interests of the conservation group itself which Judge Trask had explicity found incompatible with the organization's standing. "The point is that the standing necessary to asset as a litigant must be that of the litigant." Alameda, supra, 1 ELR 20097, 20098.⁴

There is simply no way to reconcile the results reached in Citizens Committee for the Columbia River with Tongass National Forest and no way to square the court's holding in the latter case with Sierra Club v. Hickel and Alameda. Ironically, had Judge Solomon ruled in favor of plaintiff's standing and Judge Plummer against such standing, the two decisions would at least have been consistent with the earlier Ninth Circuit rulings. Further, the problem with standing in each of the four cases does not involve the second and more troublesome of the Supreme Court's two criteria in Data Processing. Where environmental groups have objected to administrative action on environmental grounds, the courts have had little difficulty in determining that the asserted interest falls arguably within the zone of interests sought to be protected by the pertinent statutes.⁵ Rather, problems have arisen only on the threshold constitutional issue of "injury in fact." In short, the conflict between the Ninth Circuit and its sister circuits on standing is not whether "aesthetic, recreational and conservational" interests may be asserted under pertinent legislation, but whether independent of property use or ownership, they may be properly asserted by groups of individuals or organizations who by their conduct have evidenced a "special interest" in the field of environmental protection and whose injury is the threat of destruction of public resources and public amenities, damage to which never settles firmly on individual citizens, for the same reasons that the public benefits provided by these resources vanish if atomized among private individuals. The whole at issue in a case where the standing of a public environmental group is also disputed will always be greater than the sum of its parts.⁶ How the Supreme Court resolves the issue presented in Sierra Club v. Hickel will thus have a marked impact upon the activities of the various conservation groups and the increasing number of attorneys devoting all or a substantial portion of their time to "public interest" environmental litigation:

1. An affirmance of the restrictive Ninth Circuit view would doubtlessly encourage that circuit to proceed along the lines of Alameda and Citizens Committee for the Columbia River in restricting standing to those instances where plaintiff organizations could allege property ownership or the organizational use of facilities affected by the disputed project.⁷

[1 ELR 10061]

2. The Court may avoid a major statement about standing by remanding the case with instructions to permit amendment of the complaint in order that plaintiffs may conform to whatever requirements the Supreme Court or the Nine Circuit may promulgate. This would leave unresolved the question posed by Judge Solomon in Citizens Committee for the Columbia River: can a litigant who does not himself have standing cure this deficiency by adding other competent parties to his complaint, or by designating his suit a class action?

3. An adoption by the Court of the liberal view of standing best stated by the Second Circuit in Scenic Hudson and Hudson Valley v. Volpe, and suggested by the Supreme Court itself in Data Processing and Barlow v. Collins, would pave the way for a vigorous patrol of environmental interests by concerned organizations and individuals. Such a ruling could be modified by the class action procedure suggested by Judge Plummer in Tongass National Forest, effectively foreclosing the possibility of repetitive litigation feared by Judge Trask.

4. Finally, the Court may comprehensively review its criteria for standing, dealing not only with the "injury in fact" question but also with the numerous questions raised concerning its "zone of interest" standard. See Data Processing, supra. Also, Barlow v. Collins, supra.⁸

There are weighty reasons to anticipate that whether it chooses to do so in Sierra Club v. Hickel or at some later date the Supreme Court will ultimately grant environmental groups standing to challenge federal and state administrative actions affecting the environment where it is claimed that such conduct is arbitrary, illegal or an abuse of agency discretion. Again, the question is not the scope of reviewability expressly or impliedly written into the relevant statute, but merely whether such groups have equal footing with other individuals suffering economic or noneconomic injury through the disputed action. "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, 392 U.S. 83, 99. The empirical test of injury, as defined by the Supreme Court, is whether plaintiff has suffered harm sufficient to support "such a personal stake in the outcome of the controversy as to assure than concrete adverseness which sharpens the presentation of issues." Baker v. Carr, 369 U.S. 186, 204 (1962). Adverseness sufficient to satisfy the "case and controversy" clause of Article III of the Constitution was further dealt with by the Supreme Court in Flast v. Cohen, the Court holding that if the required "nexus" exists between plaintiff's status and his claim of standing, "we feel that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adversity and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a framework traditionally thought to be capable of judicial resolution." 392 U.S. 83, 106.

Tangential to the constitutional issue lies a widely adopted judicial policy encouraging the activities of private watchdogs of the public interest, as expressed in the relevant statute. Thus in Associated Industries of New York State, Inc. v. Ickes, 134 F.2d 694 (2d. Cir. 1943), the court spoke of individual litigants serving in the capacity of "private attorneys-general." See also Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). Those whose financial interests have been adversely affected by administrative action are, of course, ideally situated to serve in this capacity, as noted by the D.C. Court of Appeals in Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 866-67:

Regardless of the merits of plaintiff's case, it should be granted the right, if possible, to make a prima facie showing that the government's agents did in fact ignore the Congressional guidelines in the manner in which they handled the grant of the contracts. If there is arbitrary or capricious action on the part of any contracting officer, who is going to complain about it if not the party denied a contract as a result of the alleged illegal activity? It seems to us that it will be a very healthy check on governmental action to allow such suits, at least until or unless this country adopts the ombudsman system used so successfully as a watchdog of government activity elsewhere.⁹

If "aesthetic, recreational and conservational" interests are in fact to be accorded equal weight with economic interests, as Justice Douglas' dictum in Data Processing suggests, then conservation-minded [1 ELR 10062] organizations would appear to satisfy both constitutional and public policy requisites for standing, and in tying them to narrow property or property use concepts, as he did in Sierra Club v. Hickel and Alameda, Judge Trask would seem to be setting unduly restrictive perimeters. The more liberal line of reasoning was presented forcefully by the court in Environmental Defense Fund, Inc. v. Corps of Engineers of the U.S. Army, supra, where the court stated:

It is true that the language in Data Processing, on which the plaintiffs rely here, is dicta, and it can be argued that such language, even going back to the Scenic Hudson case, was unnecessary to the particular decisions because of the facts of such cases. Nevertheless, the Court agrees with the dissent in the Sierra Club case, because the rationale of Data Processing and the other Supreme Court decisions, if not the precise holdings, clearly indicates that such plaintiff organizations as those involved in such cases have standing to sue. There can be no doubt that corporate plaintiffs are interested and antagonistic enough to present the issues vigorously and with the "concrete adverseness" referred to in Baker v. Carr. [Citing Baker v. Carr, and Flast v. Cohen, supra.]¹⁰ 1 ELR 20130, 20133.

See also The West Virginia Highlands Conservancy v. Island Creek Coal Co., 1 ELR 20160 (4th Cir. 1971), where a preliminary injunction preventing timbering, road construction and prospecting for coal in the Otter Creek drainage of the Monongahela National Forest was affirmed. With respect to plaintiff's standing the court held that "injury in terms of aesthetic, conservational and recreational values is generally recognized an sufficient to confer standing." 1 ELR 20160, 20161. In following the line of reasoning of the Second Circuit, the court nevertheless distinguished its holding from Sierra Club v. Hickel, because plaintiff here was a local organization. That distinction would, of course, have been invalid if applied to Alameda.

Finally, it cannot be seriously doubted that environmental protection groups are in the litigation field to stay. An unduly restrictive holding on the issue of standing to sue in their own names, rather than diminishing the number of environmental lawsuits, might well achieve the opposite result by impelling the various organizations — like the ACLU — to subsidize and participate in actions brought in the names of individuals whose standing to sue would be unquestioned.

1. Flast v. Cohen, 392 U.S. 53 (1968); Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1965); Association of Data Processing Service Organizations, Inc., v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970).

2. Sierra Club v.Hickel, Alameda, and Citizens Committee for the Columbia River form an interesting progression. In Sierra Club. v. Hickel Judge Trask, who wrote the majority opinion in that case and most of the majority opinion in Alameda, found (1) no allegations that the club had been "aggrieved" or "adversely affected" by the agency action; (2) no ownership by the club of affected property; (3) no co-plaintiff local conservation group or resident. In Alameda, plaintiff itself was a "local" conservation organization while co-plaintiffs included eight individual members who owned property on or near San Francisco Bay. A majority of the court held that the eight individual members had standing. Judge Trask concurred only with respect to four whose property actually touched the Bay but did not feel it necessary to reach any conclusion as to the others' standing. 1 ELR 20097, 20098. Writing again for the majority, Judge Trask held that the Alameda Conservation Association was without standing: "The corporation does not assert that it has any property interests of any kind real or personal which would sustain injury in fact, economic or otherwise, as a result of any of the defendants' activities … nor does the fact that the corporate purposes are akin to those of its members make the corporation the authorized spokesman for the purposes of asserting its members constitutional rights." 1 ELR 20097, 20098. In Citizens Committee for the Columbia River, of course, specific harm to the plaintiff organizations was alleged, but no allegations were made concerning direct organizational interest in or use of the involved property. With each decision the requirements for group standing became more stringent.

3. Judge Trask in Alameda, supra, expressed concern that given liberal standing requirements, "the various clubs, political, economic and social now or yet to be organized could wreak havoc with the administration of government, both federal and state." 1 ELR 20097, 20098. Judge Trask's concern that liberalized standing is a Trojan hourse with the Sierra Club and sister organizations inside is shared neither by many courts nor by most commentators. See for example Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied 384 U.S. 941, where the court noted, "we see no justification for the Commission's fear that our determination will encourage literally thousands to intervene and seek review in future proceedings. We rejected a similar contention in Associated Industries v. Ickes…, noting that no such 'horrendous possibilities' exist. Our experience with public actions infers the view that the expense and vexation of legal proceedings is not lightly undertaken." 354 F.2d 608, 617. And Davis, in "The Liberalized Law of Standing," remarked wryly, "Opening the doors so widely does not mean that the courts are overrum with cases that ought not to be decided. It does mean that litigation about the law of standing is rather slight." 37 U.Chi.L.Rev. 450, 468.

4. Judge Plummer in Tongass National Foresthad a good deal more difficulty with the standing of conservation groups, to assert violations by the Secretary in nonenvironmental areas, but without expressly holding that such standing existed he proceeded to consider allegations in the complaint on their merits. Plaintiffs "victory" proved to be Pyrrhic, however, as the court held for defendants on the merits.

5. See Moorman, Primer for the Practice of Federal Environmental Law, 1 ELR 50001, 50004-50007 and cases cited therein. See also Environmental Defense Fund, Inc. v. Corps of Engineers, U.S. Army, 1 ELR 20131 (E.D.Ark. 1970).

6. The burden of proof thus necessary to support "injury in fact" in the more liberal circuits is the burden of establishing "special interest" in the involved field. The nature and extent of this interest varies somewhat from case to case, but required is something more than a casual interest shared in the workings of government by members of the public at large. Even under the "liberal" standard, the Sierra Club would have no more standing to challenge, for example, a cut-off in proverty funds to Watts than a welfare rights organization would have to object to the Mineral King ski resort project.

7. On April 19, 1971, the Supreme Court summarily denied plaintiffs' and defendants' petitions for certiorari in Alameda. 13 U.S.L.W. 1371. The decision would seem surprising because, as noted above, the Alameda holding was even more restrictive than Sierra Club v. Hickel. One explanation for the Supreme Court's action is that in Alameda the lawsuit continues, since the eight individual plaintiffs were found to have standing, while in Sierra Club v. Hickel affirmance of the Ninth Circuit holding would preclude determination on the merits of the action.

8. Mr. Justice Brennan, joined by Mr. Justice White, concurring and dissenting in Data Processing and Barlow v. Collins, forefully argued that the "zone of interest" test is "useless" and "unnecessary," and that it "encourages badly reasoned decisions" by hopelessly confusing standing with questions which involve judicial reviewability and determination on the merits. Professor Davis, "The Liberalized Law of Standing," supra, expressed many of the same views, arguing further than if literally applied, the "zone of interest" test would bar suits by individuals adversely affected by illegal administrative activity beyond that authorized in the pertinent statute. Yet to deny such persons relief from administrative arbitrariness would be palpably unjust and clearly contrary to the intent of the Court.

9. Financial injury may also serve as the basis for standing to raise environmental objections to administrative actions. See National Helium Corp. v. Morton, 1 ELR 20157 (D.Kan. March 22, 1971), where a group of large helium producers in the Kansas-Hugoton field obtained a preliminary injunction against termination of their contracts with the federal government, on the groups that the Secretary of Interior had failed to consider the National Environmental Policy Act in conjunction with the Helium Act. The court noted the irony of the situation: "It may seem passing strange to see plaintiffs, the offspring of giants of the oil and gas industry, garbing Themselves in the status of private attorney-general for the public interest, yet this Court perceives no valid reason why they cannot assert this role as protector of the public interest, along with their own. The Court finds that plaintiffs do have requisite standing to maintain this action." 1 ELR 20157, 20159.

10. In Hudson Valley v. Volpe, the Second Circuit addressed itself to the adversity issue as follows: "They [the conservation group] have evidenced the seriousness of their concern with local natural resources by organizing for the purpose of cogently expressing it, and the intensity of their concern is apparent from the considerable expense and effort they have undertaken in order to protect the public interest which they believe is threatened by official action of the federal and state governments. In short, they have proved the genuiness of their concern by demonstrating that they are 'willing to shoulder the burdensome and costly process of intervention' in an administrative proceeding. They have by their activities and conduct. … exhibited a special interest in the preservation of the natural resources of the Hudson Valley." 1 ELR 20006, 20008. (Citations omitted.) For a strong argument on the public policy aspect of standing, see Brief of Amici Curiae, Sierra Club v. Hickel, 1 ELR 29001, 29002.