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June 6, 1990


The opinion of the court was delivered by: WILLIAM B. BRYANT

 Defendants have moved again for summary judgment in their favor on all claims except as to the Departmental rules regarding "surface owner" consent. Defendants base their motion upon their interpretation of the burden of proof at this juncture, which they assert requires plaintiffs to prove that the evidence advanced to support standing demonstrate injury-in-fact, causation, and redressability. In this regard, defendants argue that plaintiffs alleged injuries are too remote, speculative, and vague to provide plaintiffs with standing to bring their claims and to confer upon the court Article III jurisdiction.

 Standing Doctrine

 The question of standing demands a determination of "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343 , 95 S. Ct. 2197 (1975). Standing involves justiciability limitations imposed by the "case or controversy" requirement of Article III, § 2 of the Constitution and "prudential limits on its exercise." Id. Essentially, the court must determine whether the plaintiff has "alleged such a personal stake in the outcome of the controversy" so as to warrant her invocation of federal-court jurisdiction, Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663 , 82 S. Ct. 691 (1962), and "to justify exercise of the court's remedial powers on [her] behalf." Warth v. Seldin, 422 U.S. at 498-99. As true in 1977 as today, Judge Skelly Wright observed of these Article III requirements:

 While that much remains clear and has its roots in the Constitution, application of the principle to a particular complaining party has become difficult in the wake of rapidly developing case law.

 Animal Welfare Institute v. Kreps, 183 App. D.C. 109, 561 F.2d 1002, 1005 (1977). The court notes that for such reasons as these the court granted plaintiffs' motion for reconsideration.

 The Supreme Court has interpreted the constitutional elements of the standing requirement "as embracing three separate, yet necessarily intertwined components: . . ., (1) 'some actual or threatened injury' that (2) 'fairly can be traced to the challenged action' and (3) 'is likely to be redressed by a favorable decision.'" National Wildlife Federation v. Hodel, 268 App. D.C. 15, 839 F.2d 694, 704 (D.C. Cir. 1988) ("NWF v. Hodel") (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982)). This requisite injury can be neither to abstract interests, e.g. Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (Mere interest in a problem is not sufficient to confer standing); Schlesinger, Secretary of Defense v. Reservists Committee to Stop the War, 418 U.S. 208, 223, n.13 (1953) ("The abstract injury in nonobservance of the Constitution" insufficient to confer standing), nor a "generalized grievance shared in substantially equal measure by all or a large class of citizens," Warth v. Seldin, 422 U.S. at 499. See Allen v. Wright, 468 U.S. 737, 754, 82 L. Ed. 2d 556 , 104 S. Ct. 3315 , 54 A.F.T.R.2d (P-H) 5361 (1984) ("An asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court").

 This "distinct and palpable injury," Warth v. Seldin, 442 U.S. at 501, however, "need not be important or large; an 'identifiable trifle' can meet the constitutional minimum." National Wildlife Federation v. Burford, 278 App. D.C. 320, 878 F.2d 422, 430 (D.C. Cir. 1989) ("NWF v. Burford II") (quoting United States v. Students Challenging Regulatory Agency Procedures ("SCRAP"), 412 U.S. 669, 689 n.14 (1973)). Injury to aesthetic or recreational interests, environmental well-being, shared my many, will support a claim of standing. Sierra Club v. Morton, 405 U.S. at 734 ("Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process").

 Personal injury may be "actual or threatened;" Valley Forge, 454 U.S. at 472, and while the mere threat of an injury may appear, at first blush, to be noncognizable in a judicial system such as ours, whose jurisdiction is limited by the "cases or controversies" requirement of Article III, the Supreme Court has accommodated allegations of threatened injury in two contexts. The first of these involves cases in which the plaintiff alleges that the governmental action will be taken directly against the plaintiff. In that regard, the court must assess "the likelihood that the clash between the government and the plaintiff will in fact occur." Wilderness Society v. Griles, 262 App. D.C. 277, 824 F.2d 4, 11 (D.C. Cir. 1987) ("WS v. Griles"). The second context in which courts have deemed threatened injury sufficient to confer standing comprises cases in which the government acts directly against a third party, whose expected response will in turn injure plaintiff. In these so-called three-party cases, the determination of standing turns not on the existence of personal injury, but rather on so-called causation issues -- "whether the third party's decision is sufficiently dependent upon the governmental action that plaintiff's injury is 'fairly traceable' to that action and is 'likely to be redressed' by an order binding the government." Id. See, e.g., Allen v. Wright; Warth v. Seldin. However, when the existence of personal injury is at issue in the three-party case, it usually turns on a determination of "how likely it is that the third party's response to the challenged governmental action will injure the plaintiff at all," WS v. Griles, 824 F.2d at 12 (emphasis in original), -- occurring in the same location as the third party's response to the challenged governmental action, in cases involving putative environmental injuries, id. at 15.

 The second prong of the standing inquiry is causation. This "logical nexus" requirement, Flast v. Cohen, 392 U.S. 83, 102, 20 L. Ed. 2d 947 , 88 S. Ct. 1942 (1968), has not, however, been uniformly interpreted. Compare Flast, 392 U.S. at 102 (Taxpayer must establish logical nexus between "status and type of legislative enactment attacked" and "status and the precise nature of the constitutional infringement"), with Schlesinger, 418 U.S. at 225 n.15 ("Flast nexus test is not applicable where the taxing and spending power is not challenged"). As discussed, supra, in the context of three-party cases, the "mere indirectness of causation is no barrier to standing, and thus, an injury worked on one party by another through a third party intermediary may suffice." NWF v. Hodel, 839 F.2d at 705. This Circuit has held: "We are concerned here not with the length of the chain of causation, but on [sic] the plausibility of the links that comprise the chain." Public Citizen v. Lockheed Aircraft Corporation, 184 App. D.C. 133, 565 F.2d 708, 717 n.31 (D.C. Cir. 1977).

 The final prong of current constitutional standing analysis is redressability. "Redressability and causation analysis often replicate one another, particularly in cases where, as here, the relief requested is merely the cessation of illegal conduct." NWF v. Hodel, 839 F.2d at 705. Courts have interpreted this requirement to have been fulfilled when plaintiff has demonstrated that a favorable decision is likely to redress his injury -- "a party seeking judicial relief need not show to a certainty that a favorable decision will redress his injury." NWF v. Hodel, 839 F.2d at 705. See Hazardous Waste Treatment Council v. U.S. Environmental Protection Agency, 274 App. D.C. 37, 861 F.2d 270, 273 (D.C. Cir. 1988) ("Our decision (favorable to the plaintiff) is at least a necessary first step on a path that could ultimately lead to relief fully redressing [plaintiff's] injury").

 As to the prudential limits on the court's exercise of its jurisdiction, which may require a denial of standing "if as a matter of judicial self-restraint it seems wise not to entertain the case," 13 C. Wright, A Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3531, plaintiff "must plausibly . . . assert that the injury is arguably within the zone of interests protected or regulated by the law on which the complaint is founded." Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 252 App. D.C. 249, 789 F.2d 931, 936 (D.C. Cir. 1986). "Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claims rest can properly be understood as granting persons in the plaintiff's position a right to judicial relief." Warth v. Seldin, 422 U.S. at 500 (footnote omitted). Summarizing Article III and prudential limitations, this Circuit has judged:

 The standing inquiry focuses on the substance of the agency action, its adverse impact on the plaintiff, and the types of interests that the applicable law is designed to protect. The would-be plaintiff's interest in the relevant law is ascertained by injury in fact; the law's interest in the would-be plaintiff is determined by the 'zone of interests' test. Mutuality of interest must be credibly asserted.

 Capital Legal Foundation v. Commodity Credit Corporation, 228 App. D.C. 467, 711 F.2d 253, 259 (D.C. Cir. 1983).

 Summary Judgement Burden

 Some discussion of the burdens of both the movant and nonmovant at summary judgment, as well as the degree of specificity this Circuit has required of litigants asserting threatened environmental injury of this kind, is necessary, since there is some question as to whether this court's November 1, 1988 order correctly granted defendants' motion for summary judgment on standing grounds. Plaintiff argues that "to prevail, defendants must prove that the plaintiff's standing claims 'were sham and raised no genuine issue of fact.'" Plaintiffs' Memorandum in Support of Their Motion for Reconsideration at 16 (quoting SCRAP, 412 U.S. at 689 & n.15). Although unclear, it would appear that plaintiffs are arguing that defendants must do more than merely deny plaintiffs' allegations of injury-in-fact.

 It is generally true that "the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact." Celotex Corporation v. Catrett, 477 U.S. 317, 321, 91 L. Ed. 2d 265 , 106 S. Ct. 2548 (1986) (quoting Catrett v. Johns-Mansville Sales Corporation, 244 U.S. App. D.C. 160, 163 (1985)) (emphasis in original). When, however, the nonmoving party has the burden of proof as to an issue as do the plaintiffs in this case as to standing, *fn1" "the moving party is 'entitled to a judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323. Celotex clearly points out that "the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The moving party, where the nonmoving party bears the burden or proof, need not produce evidence showing the absence of a genuine issue of material fact. Id. Hence, in the instant case, defendants need only have -- and did -- point to the fact that plaintiff's claims of injury were too speculative and remote and lacked the specificity required to survive a motion for summary judgment. *fn2"

 As to the level of specificity required in environmental cases such as this, where the alleged injury involves access to land in a three-party case, e.g., Sierra Club v. Morton, SCRAP, and WS v. Griles,

 the judgment regarding the likelihood of injury turns on whether the plaintiff's future conduct will occur in the same location as the third party's response to the challenged governmental action. Otherwise, the threat of injury would be too amorphous or uncertain . . .

 WS v. Griles, 824 F.2d at 12 (emphasis added). Standing "does not require meticulous specificity," National Wildlife Federation v. Burford 839 F.2d 305, 312 (1987) ("NWF V Burford I") but does require plaintiffs to point to specific lands that they wish to use that will be affected by the agency's regulation or action. See WS v. Griles at 15 (The absence of specificity regarding the location dooms plaintiffs' claims of threatened injury); NWF v. Hodel, 835 F.2d at 312 (On a motion for summary judgment, plaintiff will have to show injury with greater specificity). Although plaintiffs consider such a requirement to "exalt[] form over substance," Plaintiffs' Memorandum in Support of Their Motion for ...

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