US Dist. Court, Dist. of Columbia, No. 10-1513(RBW), October 2, 2012: Advocacy nonprofits denied standing to challenge delisting of district from National Register.
The Sierra Club, Ohio Valley Environmental Coalition, Friends of Blair Mountain, Inc., West Virginia Labor History Association, National Trust for Historic Preservation in the United States, and West Virginia Highlands Conservancy (“Plaintiffs”) sought to overturn on procedural grounds the decision by the Keeper of the National Register (“Keeper”) to remove the Blair Mountain Battlefield (the “District”, described at the end of this post) from the National Register of Historic Places. Plaintiffs claimed the delisting violated the Administrative Procedure Act, 5 U.S.C. 706.
The delisting resulted from a controversy about the number of property owners in the district and the number of these who objected to listing the District. Section 470a(a)(6) of the National Historical Preservation Act (the “Act”) says that if a majority of owners of properties within a historic district object to the property’s inclusion on the National Register, the property is not to be included until the objection is withdrawn. The Keeper approved the Register listing based on a nomination prepared by the West Virginia State Historic Preservation Office (SHPO), which did not show a majority of owners objecting. In response to an objection filed by a law firm representing objectors, including several coal mining companies, which showed a different number of owners and a majority of objectors, the SHPO eventually revised its count and the Keeper delisted the District. A subsequent privately funded count, however, found different numbers that did not require delisting.
The Plaintiffs challenged the delisting because of the potential or likelihood of surface coal mining if the area were delisted. As reported by the Court, the Act prohibits surface mining coal operations “which will adversely affect any publicly owned park or places included in the National Register of Historic Sites unless approved jointly by the regulatory authority and the Federal, State, or local agency with jurisdiction over the park or the historic site.” (30 U.S.C. 1272(e)(3) (2006)). The Act also says the prohibition is “subject to valid existing rights” and “further exempts coal mining operations in existence on August 3, 1977”.
The Keeper denied the Plaintiffs’ request to reconsider the delisting. The Plaintiffs asked the Court to require reconsideration, alleging that the delisting resulted, in effect, from arbitrary and capricious action by the Keeper.
Without getting to the substance of the claims, the Court ruled that Plaintiffs did not have standing to bring them. The Court first held that the Plaintiffs’ claim did not entitle the Plaintiffs to have their standing measured by the more generous standards appropriate for a “procedural injury”, and then held that they lacked standing by the more usual “Article III” standard.
The Court held (citing other cases) that a “procedural injury” results only from “the violation of a procedural right afforded to [the plaintiff] by statute and designed to protect their threatened concrete interest”. The Court said that the Plaintiffs’ allegation that the Keeper arbitrarily and capriciously failed to follow the regulations don’t allege a procedural right, and therefore their standing would not be examined under the rulings applicable to a procedural injury claim. (Later in its Opinion, the Court came back to this issue to rule that even if the “procedural injury” standard were used here, the Plaintiffs would not satisfy it.) The Court then turned to the three necessary conditions for standing using standard “Article III” test (per Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992)) and found that the Plaintiffs did not meet any of them.
1. Organization must have suffered an `injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical: the Court reasoned that the mere ownership by mining companies of land within the District and the issuance of surface mining permits for some of this company land was insufficient to show that mining was imminent if the delisting were upheld. To the contrary, the Court found that because the mining companies were not conducting mining under all the previously issued permits, it “actually tend[s] to show the opposite—that surface mining may or may not take place on the Battlefield [District] at some undetermined time in the future.” (“Although it is possible that the coal mining companies, despite not having done so before, will begin mining operations on the Blair Mountain Battlefield in the near future, it is also possible that the coal mining companies who own interests in the Battlefield will decide not to engage in surface mining for any number of reasons.”)
2. Injury is fairly traceable to the challenged action of the defendant: Citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) and Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 670 (D.C. Cir. 1996), the Court noted that an injury does not meet this test if it “results from” or “depends on” independent action of a third party not before the court. The Court found that the alleged injury would result from surface mining depended entirely on the future action of coal companies. As set out in the Court’s analysis of the “injury in fact” test, those actions could not be determined with any certainty, and in any event the coal companies were not party to this action.
3. It is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision: The Court opined that even if it were to require the Keeper to re-list the District, that would not assure that no surface mining would take place, because the Act (a) exempted “valid existing rights”, i.e., the mining permits already issued were grandfathered pursuant to applicable state law, and (b) provides for the possibility of exceptions to the ban on surface mining on a case-by-case basis if “approved jointly by the regulatory authority and the Federal, State, or local agency with jurisdiction over the park or the historic site.”
In the absence of standing for the Plaintiffs, the Court said it lacked jurisdiction in this matter, and granted summary judgment in favor of the delisting.
(The “District” is a portion of Blair Mountain, in Logan County, West Virginia, including (according to Administrative Record) “the site of the 1921 Battle of Blair Mountain that ended an unsuccessful three-year struggle to unionize the coal miners of Logan, Mingo, McDowell, and Mercer counties … [the] largest organized armed uprising in American labor history… ending only when federal troops intervened”.)
Decision available at http://wvgazette.com/static/coal%20tattoo/BlairMtnSierraRuling.pdf.