WildEarth Guardians v. Salazar

Citations: 834 F. Supp. 2d 1220; 2011 WL 5826554; 2011 U.S. Dist. LEXIS 133645Docket: Civil Action No. 10-cv-00011-AP

Court: District Court, D. Colorado; November 17, 2011; Federal District Court

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The Narrow-foot Hygrotus Beetle, found exclusively in central Wyoming's riparian ecosystems, has a history dating back to the Lower Permian period. Despite its resilience, threats to its habitat raise concerns for its survival. In July 2007, WildEarth Guardians petitioned the Secretary of the Interior to classify the Diving Beetle as threatened or endangered under the Endangered Species Act due to these threats. The Secretary did not act, prompting WildEarth Guardians to file a lawsuit to compel a decision and subsequently submit an emergency listing petition, which was denied. On February 5, 2009, the Secretary issued a 90-day finding denying the original petition. WildEarth Guardians alleged that this decision was arbitrary and contrary to the law, seeking declaratory and injunctive relief. After denying the Secretary's request for discovery regarding standing as premature, the court later allowed limited discovery on that issue. Following discovery, the Secretary filed a Motion to Dismiss for lack of standing, which the court ultimately granted, dismissing the plaintiff's petition for relief. The court clarified that the review process for challenges under the Endangered Species Act is governed by the Administrative Procedure Act, limiting its review to the evidence considered by the Secretary. The court emphasized that the Motion to Dismiss, addressing jurisdictional issues, does not alter the appellate framework and is reviewed under Federal Rule of Civil Procedure 12(b)(1).

Affidavits and supporting documents have been reviewed in light of jurisdictional arguments presented by both parties. The Secretary contends that WildEarth Guardians lacks standing to contest the decision that the Diving Beetle does not require protections under the Endangered Species Act. WildEarth Guardians bears the burden of proving its standing, which is critical for the continuation of its challenge. 

To establish standing, an organization must show: (1) its members would have standing individually; (2) the interests it seeks to protect are relevant to its purpose; and (3) individual participation in the lawsuit is unnecessary. The second and third criteria are satisfied in this case, so the analysis pivots to whether James Jay Tutchton, a member of WildEarth Guardians, has individual standing to sue the Secretary.

The requirement for standing in federal court necessitates a legal right to seek judicial enforcement of a legal duty. Although the standing concept is not explicitly mentioned in the Constitution, it is widely accepted as necessary for legal proceedings. The Supreme Court has clarified that standing comprises three constitutional elements: (1) a concrete and particularized injury that is actual or imminent; (2) a causal link between the injury and the defendant’s conduct; and (3) a likelihood that a favorable ruling will remedy the injury.

Requirements for establishing "injury in fact" have proven challenging to apply consistently. Following the Supreme Court's decision in Sierra Club v. Morton, the Court's approach to standing has fluctuated between expansive and restrictive interpretations. Notable cases include United States v. Students Challenging Regulatory Agency Procedures and Lujan, which highlight these shifts. Recent rulings have further complicated standing jurisprudence, as seen in Massachusetts v. Environmental Protection Agency, where a procedural right can be asserted without meeting all standard criteria for redressability and immediacy, contrasting with Summers v. Earth Island Institute, which denied standing based on the lack of a concrete interest. This inconsistency has faced criticism for its theoretical implications and has made it difficult for lower courts to apply standing principles effectively. In environmental law, this unpredictability is evident, as organizations actively involved in rulemaking often lack independent standing, compelling them to rely on the "discrete injury" of their members. To establish "injury in fact," WildEarth Guardians must demonstrate that Mr. Tutchton has experienced an invasion of a legally protected interest that is concrete, particularized, and either actual or imminent. Mr. Tutchton claims that the Secretary's failure to provide legal protection for the Narrow-foot Hygrotus Diving Beetle impacts his enjoyment of the area, affirming the concrete and particularized nature of his alleged injury.

Mr. Tutchton is not required to demonstrate that he has directly observed a Diving Beetle or that it is crucial to his personal or professional life; he only needs to show that his enjoyment of the area relies on the Diving Beetle's continued existence. Established legal precedent supports that an interest in observing wildlife for aesthetic reasons is sufficient for standing. His declaration meets the threshold for showing injury; however, he must also prove that his injury is "actual or imminent," as opposed to merely "conjectural or hypothetical." The distinction between these types of injuries has led to confusion in standing jurisprudence, which necessitates a case-by-case analysis due to its subjective nature.

The Supreme Court's recent cases, such as *Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.* and *Summers v. Earth Island Institute*, illustrate different approaches to evaluating whether an injury is "actual or imminent." In *Friends of the Earth*, the Court accepted the plaintiffs' claims of intended use of the area based on their proximity to it, without requiring concrete plans. Conversely, in *Summers*, the Court denied standing because the plaintiff lacked a firm intention to visit the affected area, highlighting that vague aspirations do not constitute sufficient proof of imminent injury. Despite these differing conclusions, both cases reflect a continuum where established past usage of an area strengthens the case for future intent to return, as shown in *Tandy v. City of Wichita*, which found standing based on repeated past use of public transportation.

A party does not need to show "concrete plans" to return to an affected area if they reside nearby; however, if they live far away and have only sporadic visitation, they must provide more specific intentions to return. This standard assists courts in assessing the credibility of affiants concerning alleged injuries. The Tenth Circuit previously indicated that a party must demonstrate a "geographical nexus" or actual use of the site to establish an "actual or imminent" injury. This determination should be viewed along a continuum rather than as a simple either/or scenario, allowing courts flexibility in evaluating each case's facts.

In the case of Mr. Tutchton, who lives over 200 miles from the Diving Beetle's habitat and lacks a consistent visit history, it is necessary for him to plead specific plans to return. Although he claimed intentions to visit in 2011, he failed to provide concrete evidence of those plans. This lack of demonstration of an "actual or imminent" injury means he and WildEarth Guardians lack standing to challenge the Secretary’s denial of the July 2007 listing petition for the Narrow-foot Hygrotus Beetle. Consequently, the Secretary's Motion to Dismiss is granted, and WildEarth Guardians' Petition for Review is dismissed, with each party responsible for its own fees and costs. WildEarth Guardians' petition was part of a larger request involving 206 species submitted to the Fish and Wildlife Service.

WildEarth Guardians submitted a petition regarding 475 species to the Fish and Wildlife Service's Southwestern Region, seeking protection under the Endangered Species Act. Upon such a petition, the Secretary of the Interior has ninety days to determine if the petition presents substantial information warranting further action. The legal principles surrounding standing in these cases are complex and inconsistently defined by the Supreme Court, as noted by various scholars and cases. Mr. Tutchton claims personal harm due to the potential extinction of the Narrow-foot Hygrotus Diving Beetle, linking it to a loss of biodiversity. However, similar claims of psychic injury have been dismissed by the Supreme Court as insufficient for establishing standing. The Court's rulings also indicate that requiring actual observation of a species for standing would undermine the statutory purpose of the Endangered Species Act. Courts generally grant standing to parties living near affected areas without demanding concrete future plans, as shown in several precedents where proximity to the environmental harm suffices for standing.

Standing has been established in various cases where individuals demonstrate a significant connection to the affected area, such as living, working, or frequently recreating there. For instance, in S.W. Ctr. for Biological Diversity v. Clark, a member's substantial time spent in the vicinity of endangered species was sufficient for standing. Similarly, in Coal, for a Sustainable Delta v. McCamman, standing was granted based on a member's over 200 visits and intentions to return. In Ecological Rights Found. v. Pacific Lumber Co., standing was supported by a member's past swimming in a polluted area, while in Wy. Farm Bureau Fed’n v. Babbitt, habitual visits during yearly trips established standing.

Conversely, sporadic visits necessitate clearer intentions to return for standing to be recognized, as illustrated in S. Utah Wilderness Alliance v. Sierra, where limited past visits and vague future plans led to a failure to establish standing. The critique noted that concrete plans, such as hotel reservations or plane tickets, could have sufficed to demonstrate "injury in fact," highlighting a potential inequity where access to financial resources affects legal standing. The determination of "injury in fact" is crucial, leading to a decision not to further explore causation and redressability in this context.