New DC Circuit Standing Decision

On August 26, 2014, the D.C. Circuit Court of Appeals decided the case of Sierra Club, et. al. v. Jewel, a case involving the National Register of Historic Places (Register), which is administered by the Department of the Interior. The Court of Appeals held, over the dissent of Senior Circuit Judge Sentelle, that the plaintiffs, a coalition of environmental groups and historic preservation organizations, have standing to challenge the decision of the Keeper of the Register that the “Blair Mountain Battlefield”, the scene of a historic and violent encounter between coal miners and coal companies in the 1920’s, and located in Logan County West Virginia, should not be included in the Register because the initial listing process was defective.

It appeared that the consent of the majority of property owners of the proposed listing — the Battlefield area is privately-owned by members of the Coal Association — was not obtained, and they objected to the listing. When the Battlefield was removed from the Register, the Sierra Club, the Ohio Valley Environmental Coalition, and other organizations (collectively, the Coalition) filed a lawsuit in the U.S. District Court of the District of Columbia, arguing that the Keeper’s decision was arbitrary and capricious. The district court granted the Department of Interior’s motion for summary judgment, agreeing that the Coalition did not have standing to bring the action.

The majority of the Court of Appeals reversed, holding that the Coalition indeed had standing because they were able to demonstrate an injury in fact in that their aesthetic interests in the Battlefield’s history was concrete and particularized, and this interest would be injured if the existing coal mining permittees exercised their permit rights and began coal mining operations. (Apparently, a listing in the Register would substantially rule out any additional coal mining in the area of the Battlefield.) The Court of Appeals agreed that the members of the Coalition had no legal rights to enter the area of the Battlefield, but this fact did not disqualify their interests. Also, there was a substantial probability of injury to their interests since coal mining operations are currently being conducted in the area today, and could be expanded (a number of coal mining permits have been issued by the State of West Virginia).

Judge Sentelle’s dissent is rather pungent. He states that the coalition is asserting an interest “in viewing the property of others. I know of no legal protection for that interest”. Indeed, none of the cases cited by the majority “would lead me to suppose that my neighbor has a legally protected right that I have invaded when I trim the grass and behead the clovers which he enjoys seeing”. According to Judge Sentelle, therefore, the plaintiffs do not have a legally protected interest.