US Court of Appeals, DC Circuit, No. 12-5383, August 26, 2014: Non-property owner advocates have standing re. National Register listing.
This case involves efforts to obtain listing in the National Register of Historic Places for Blair Mountain Battlefield, the site of “the largest armed labor conflict in our nation’s history.” The Battlefield was listed in 2009 only to be removed within days; the Keeper of The Register determined that the wishes of coal mining companies that own property in the area “had not been accurately captured in the nomination process.” A coalition of several citizen groups (the “Coalition”) sued in federal district court challenging the Battlefield’s removal from the Register. They asserted that the delisting created a real risk that surface coal mining would alter the Battlefield in ways that would not happen if the site were listed. The district court granted summary judgment against the Coalition, holding that they lack standing. The Coalition appealed and the appeals court granted the Coalition standing, overturning the district court decision.
The majority decision on appeal held the Coalition had standing, based on the three components of standing: injury in fact, causation, or redressability. A dissenting judge would have denied standing.
Injury in fact: the Coalition had to show that the asserted injury to its members is concrete and particularized, and is also actual or imminent. The court cited Supreme Court decisions recognizing that harm to “the mere esthetic interests of the plaintiff … will suffice” to establish a concrete and particularized injury. The court held that the Coalition members did not have to show they had a right to enter the property to meet this standard. The court said that Coalition members who merely view and enjoy the Battlefield’s aesthetic features, or who observe it for purposes of studying and appreciating its history, would suffer a concrete and particularized injury from the conduct of surface mining on the Battlefield: “They possess interests in observing the landscape from surrounding areas, for instance, or in enjoying the Battlefield while on public roads.”
As to whether the asserted injuries qualify as “imminent” the court said it was necessary to show a “substantial probability of injury” to establish imminent injury. The court found the Coalition had made that showing because it was undisputed that coal companies have mined in the vicinity of the Battlefield under permits that encompass the Battlefield, and although the permits have existed for over ten years without any mining, the coal companies themselves had said they would eventually mine in the Battlefield under the permits.
Causation and redressability: The court said the standard of proof requires the Coalition to show that its injury is “fairly traceable” to the delisting of the Battlefield, and that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” This, the court said, depends on the extent to which inclusion in the Register would protect the Battlefield from surface mining. The court held that a West Virginia regulation affords enough additional protections to places listed in the Register for the coalition to satisfy this standard. The regulation says that “all adverse impacts [from surface mining] must be minimized” for sites included in the Register. W. Va. Code R. § 38-2-3-17.c. The Coalition only need to persuade the court that it’s interpretation of the “minimization requirement” was “non-frivolous.”
One of the three judges on the panel dissented, saying that the federal courts should have no jurisdiction over this action because the “injury in fact” requirement for standing requires a legally protected interest. In the dissenting judge’s opinion, the coalition members’ interest in viewing the property of others is not a legally protected interest.