In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3488
A MERICAN B OTTOM C ONSERVANCY,
Plaintiff-Appellant,
v.
U.S. A RMY C ORPS OF E NGINEERS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-603-GPM—G. Patrick Murphy, Judge.
A RGUED A PRIL 15, 2011—D ECIDED JUNE 14, 2011
Before P OSNER and M ANION , Circuit Judges, and
L EFKOW, District Judge.
P OSNER, Circuit Judge. The “American Bottom” is a 175-
square-mile floodplain of the Mississippi River in south-
western Illinois, across the river from St. Louis. The area
Hon. Joan Humphrey Lefkow of the Northern District of
Illinois, sitting by designation.
2 No. 10-3488
contains wetlands (water-saturated soil) that provide
habitat for many different species of birds, butterflies, and
other wildlife. The American Bottom Conservancy is an
environmental organization that seeks to preserve the
wetlands. Its members include birdwatchers and other
people who enjoy seeing wildlife in the wild.
Waste Management of Illinois, Inc., owns and operates
a landfill in the American Bottom that it calls the
“Milam Recycling and Disposal Facility.” The landfill,
located near the town of Madison, Illinois, is due east of
St. Louis and southwest of a state park that contains a
large lake—the largest in Illinois, after Lake Michigan. It
is called Horseshoe Lake because of its shape (see the
first map at the end of this opinion; the maps, though
based on the record, are approximations).
Because the Milam landfill is filling up with waste
from St. Louis, Waste Management wants to build
another landfill—the “North Milam Recycling and Dis-
posal Facility”—on 180 acres of a 220-acre tract (“North
Milam”) that it owns just north of the Milam RDF; the
tract is thus located between that landfill and the state
park. The shortest distance from the site of the proposed
new landfill to the park’s southern boundary is between
a quarter of a mile and half a mile.
The 220-acre tract contains five wetland areas. Almost
all of them are in the center and northern parts of the
tract, about half a mile from the southernmost part of the
state park; and that is the part to which bird- and other
wildlife-watchers gravitate because it’s away from
the park’s picnic tables and other clutter, which are
No. 10-3488 3
near the lake. (The clutter is marked with Xs on the
first map.)
Obtaining permission to build a new landfill, and
building it, will take time. In the meantime Waste Man-
agement wants to remove the soil from some of the
wetlands and transport it to its existing landfill to
cover layers of waste as they are piled atop that
landfill (“daily cover,” as this layering is called). The
consequence will be to transform the wetlands into a
dry “borrow pit.”
The wetlands occupy 26.8 acres of the tract and Waste
Management wants to destroy 18.4 of them (69 percent).
But to destroy wetlands it needed a permit from the
Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a),
1362(7); 40 C.F.R. § 230.3(s)(7). The Corps granted the
permit on condition that Waste Management create
double the amount of wetlands on a nearby tract that it
owns that we have marked as the “proposed mitigation
area” on the second map. The company accepted the
condition.
Once the existing landfill reaches capacity, Waste
Management wants to replace it with the new landfill
that it seeks to build in the North Milam tract. The
Corps of Engineers doesn’t authorize landfills. To build
the North Milam landfill, Waste Management needs the
permission of the Illinois Environmental Protection
Agency. 415 ILCS 5/21(d), 5/39(a); 35 Ill. Admin. Code
§§ 807.201, 807.202(a); Community Landfill Co. v. Pollution
Control Board, 772 N.E.2d 231, 234 (Ill. App. 2002). The
company applied for that permission fifteen months
4 No. 10-3488
after it had applied to the Corps for the permit to destroy
the 18.4 acres of wetlands. Apparently the landfill would
not require the destruction of additional wetlands; other-
wise Waste Management would have applied for a
broader permit.
The application for permission to build the new
landfill is pending. But Waste Management won’t have
to—and won’t—wait for it to be granted before destroying
the wetlands, since it has to do that anyway in order
to obtain daily cover for its existing landfill. American
Bottom Conservancy brought this suit to invalidate the
permit granted by the Corps of Engineers. The court
dismissed the suit without prejudice on the ground that
the Conservancy had not established standing to sue
under Article III of the Constitution and therefore the
suit did not invoke the district court’s jurisdiction. The
only issue before us is the Conservancy’s standing.
Some of the most frequently mentioned grounds for
the constitutional doctrine of standing are tenuous, such
as that it is derived from Article III’s limitation of the
federal judicial power to “Cases” and “Controversies,”
Sprint Communications Co. v. APCC Services, Inc., 554
U.S. 269, 273-75 (2008); Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 102 (1998); D.L.S. v. Utah, 374
F.3d 971, 974 (10th Cir. 2004); or from the practice of the
English royal courts, on which the federal judiciary was
modeled, as argued by Justice Frankfurter, concurring in
Coleman v. Miller, 307 U.S. 433, 460-61 (1939), and in Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150-
51 (1951); see Bradley S. Clanton, “Standing and the
No. 10-3488 5
English Prerogative Writs: The Original Understanding,”
63 Brooklyn L. Rev. 1001, 1031-32 (1997); or from fear
that lawsuits wouldn’t be vigorously litigated, with the
requisite adverseness, unless they involved “tangible”
stakes. Valley Forge Christian College v. Americans United
for Separation of Church & State, Inc., 454 U.S. 464, 472
(1982); Baker v. Carr, 369 U.S. 186, 204 (1962); O’Sullivan
v. City of Chicago, 396 F.3d 843, 853, 868 (7th Cir. 2005);
Comite de Apoyo a los Trabajadores Agricolas (CATA) v.
Dep’t of Labor, 995 F.2d 510, 513 (4th Cir. 1993).
All three of these grounds have been subjected to
strong criticisms by reputable scholars. On whether
standing can be grounded in limitations implicit in
Article III’s case or controversy requirement see 13A
Charles Alan Wright, et al., Federal Practice and
Procedure § 3531.1, pp. 56-57 (3d ed. 2008); Robert J.
Pushaw, Jr., “Article III’s Case/Controversy Distinction
and the Dual Functions of Federal Courts,” 69 Notre
Dame L. Rev. 447, 512-17 (1994); Steven L. Winter, “The
Metaphor of Standing and the Problem of Self-Gover-
nance,” 40 Stan. L. Rev. 1371, 1376-77 and n. 26, 1418-25
(1988). On whether it can be grounded in the practice
of English royal courts and early American courts see
id.; Louis L. Jaffe, “Standing To Secure Judicial Review:
Public Actions,” 74 Harv. L. Rev. 1265, 1270 (1961) (“I have
encountered no case before 1807 in which the standing
of the plaintiff is mooted, though the lists of cases in the
digests strongly suggest the possibility that the plaintiff
in some of them was without a personal interest”);
Raoul Berger, “Standing to Sue in Public Actions: Is It a
Constitutional Requirement?,” 78 Yale L.J. 816, 827 (1969).
6 No. 10-3488
And on whether it can be grounded in fear that parties
without a tangible stake would litigate with insufficient
energy see 13A Charles Alan Wright et al., supra, § 3531.3,
pp. 126-28; Abram Chayes, “The Supreme Court, 1981
Term—Foreword: Public Law Litigation and the Burger
Court,” 96 Harv. L. Rev. 4, 24-26 (1982).
This isn’t to say that the doctrine of standing isn’t
well grounded. But the solidest grounds are practical
(just like the avowedly prudential grounds for judge-
made supplements to the Article III standard, MainStreet
Organization of Realtors v. Calumet City, 505 F.3d 742, 744-
46 (7th Cir. 2007)). The doctrine is needed to limit prema-
ture judicial interference with legislation, to prevent
the federal courts from being overwhelmed by cases, and
to ensure that the legal remedies of primary victims of
wrongful conduct will not be usurped by persons
trivially or not at all harmed by the wrong complained
of. Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., supra, 454 U.S. at 473;
North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.
1991); Daniel E. Ho & Erica L. Ross, “Did Liberal Justices
Invent the Standing Doctrine? An Empirical Study of the
Evolution of Standing, 1921-2006,” 62 Stan. L. Rev. 591, 597-
99, 604-07 (2010); Richard H. Fallon, Jr., “The Linkage
Between Justiciability and Remedies—And Their Con-
nections to Substantive Rights,” 92 Va. L. Rev. 633, 673-74
(2006); Cass R. Sunstein, “What’s Standing After Lujan?
Of Citizen Suits, ‘Injuries,’ and Article III,” 91 Mich. L.
Rev. 163, 179-80 (1992). “During the twentieth century,
courts became self-conscious about the concept of
standing only after developments in the legal culture
No. 10-3488 7
subjected the private law model to unfamiliar strains.”
Richard H. Fallon, Jr., et al., Hart & Wechsler’s The
Federal Courts and the Federal System 114 (7th ed. 2009).
Consistent with the practical as well as doctrinal
thinking behind the requirement of standing, a plaintiff,
to establish Article III standing to sue, must allege, and
if the allegation is contested must present evidence, that
the relief he seeks will if granted avert or mitigate or
compensate him for an injury—though not necessarily a
great injury—caused or likely to be caused by the defen-
dant. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
Imagine an environmental group located in California
suing to prevent the Corps of Engineers from granting
a permit to destroy wetlands at the North Milam site
even though no member of the group planned ever to
visit the American Bottom. The suit might be brought
before American Bottom Conservancy brought its own
suit and the Conservancy’s suit might be overshadowed
by the suit by the California group, even though the
Conservancy’s members have a greater stake because
they actually frequent the Horseshoe Lake State Park
and will feel the diminution in their birdwatching and
other wildlife-viewing activities directly if the wetlands
are destroyed.
The magnitude, as distinct from the directness, of the
injury is not critical to the concerns that underlie the
requirement of standing; and so denying a person
who derives pleasure from watching wildlife of the
opportunity to watch it is a sufficient injury to confer
standing. Friends of the Earth, Inc. v. Laidlaw Environmental
8 No. 10-3488
Services (TOC), Inc., 528 U.S. 167, 183 (2000); Lujan v.
Defenders of Wildlife, supra, 504 U.S. at 562-63 (“the desire
to use or observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest
for purpose of standing”); Sierra Club v. Franklin County
Power of Illinois, LLC, 546 F.3d 918, 925-26 (7th Cir. 2008)
(“[McKasson] explains that every other year since 1987,
[she] and her family have taken trips to fish, kayak, camp,
and enjoy the natural beauty and clean environment
of Rend Lake, located three miles from the proposed
plant site. She claims if the Company builds the plant
under the 2001 permit, she will cease her biennial recre-
ational trips because the pollutants emitted based on
the permit will harm her and diminish her aesthetic
enjoyment of Rend Lake”); American Bird Conservancy,
Inc. v. FCC, 516 F.3d 1027, 1029-31 (D.C. Cir. 2008) (per
curiam); Cantrell v. City of Long Beach, 241 F.3d 674, 680
(9th Cir. 2001) (“the birdwatchers have demonstrated a
sufficiently concrete interest to establish an injury in
fact under the test set forth in Laidlaw”).
The Conservancy submitted to the district court affida-
vits from three of its members who frequent the state park
and enjoy watching birds and other wildlife there, and
neither the Corps nor Waste Management, which the
Conservancy joined as an additional defendant, ques-
tion the truthfulness of the affiants’ description of
their tastes and activities. Nor did either defendant
submit any evidence relating to standing—and indeed
the Corps did not question standing in the district
court, though that of course is not a forfeiture.
No. 10-3488 9
When they’re at the southern end of the state park, the
affiants see wildlife, mainly birds (many different species)
and butterflies, both in and near the park. They assert
that the destruction of 18.4 acres of wetlands near the
south end of the park will diminish the wildlife popula-
tion visible to them and therefore their enjoyment of
wildlife, and that it will be many years before the
wetlands created by Waste Management in the mitiga-
tion area will develop to a point at which they provide
an equivalent wildlife habitat. Much of the current bird
and butterfly population will, if and when the current
wetlands are destroyed, either migrate elsewhere, in
which event they will no longer be within the visual
field of the affiants, or die. They are unlikely to hang
around for years waiting for the re-creation of their
habitat in a different place.
True, the plaintiff’s affidavits don’t say that the birds
and butterflies whose habitats are in the wetlands that
are slated for destruction fly into or over the state park,
or that birds and other wildlife that live in and fly over
the wetland acres can be seen from the park. But birds
that nest in the wetlands or resort there for food or water
do not just hover over the wetlands. They fly all over
the place, doubtless including the park, which is only
half a mile from the wetlands. It’s not as if the Con-
servancy were suing to preserve wetlands in Arkansas
on the ground that birds whose habitats are in those
wetlands sometimes fly over Horseshoe Lake State
Park. See Pollack v. U.S. Dep’t of Justice, 577 F.3d 736, 741-
42 (7th Cir. 2009); cf. Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp., 629 F.3d 387, 397 (4th Cir. 2011).
10 No. 10-3488
Proximity distinguishes this case from that and also from
our other hypothetical case, that of the California en-
vironmental group. See Lujan v. Defenders of Wildife, supra,
504 U.S. at 563-64; Havens Realty Corp. v. Coleman, 455
U.S. 363, 376-78 (1982); Aurora Loan Services, Inc. v.
Craddieth, 442 F.3d 1018, 1024 (7th Cir. 2006); Save Our
Heritage, Inc. v. FAA, 269 F.3d 49, 55 (1st Cir. 2001).
The district judge thought that to establish standing
the affiants had to attest that they would be so upset by
the diminution in their bird- and wildlife-watching ac-
tivities that they would no longer visit the state park.
That is wrong; it is enough to confer standing that
their pleasure is diminished even if not to the point that
they abandon the site. Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., supra, 528 U.S. at 183,
Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972); Heart-
wood, Inc. v. United States Forest Service, 230 F.3d 947,
951 (7th Cir. 2000). For that diminution is an injury.
The judge noted disapprovingly that the affiants
express more anxiety about the planned North Milam
landfill than about the preceding destruction of the
wetlands to create a borrow pit and that they allege
injuries, such as the bad odors likely to be generated by
the landfill if it is built, that the mere destruction of the
wetlands would not cause. This is not a valid ground
for rejecting the Conservancy’s standing. Although it is
not certain that Waste Management will obtain the re-
quired permit from the Illinois Environmental Protec-
tion Agency to build the North Milam landfill unless
the Corps of Engineers’ permit is voided, it must be
No. 10-3488 11
likely, for Waste Management must have spent a great
deal of money designing the landfill, obtaining the
Corps of Engineers permit (plus another permit it
needed, from the City of Madison, called “local siting
approval,” 415 ILCS 5/39(c), 39.2; Town & Country
Utilities, Inc. v. Illinois Pollution Control Board, 866 N.E.2d
227, 230 (Ill. 2007)), and prosecuting its permit applica-
tion before the IEPA—and it will need not just one
IEPA permit but separate permits from the agency’s
Bureaus of Land, Air, and Water. See Illinois Environ-
mental Protection Agency, “Nonhazardous Solid Waste
Management and Landfill Capacity in Illinois: 2009,” p. 11
(April 2011), www.epa.state.il.us/land/landfill-capacity/
2009/report.pdf (visited May 31, 2011).
If American Bottom Conservancy can prevent the
wetlands’ destruction by knocking out the Corps of
Engineers permit, there will be no North Milam landfill.
And so a judgment in the plaintiff’s favor in the
present lawsuit would eliminate a probable injury from
the landfill. No more is necessary to establish standing.
Massachusetts v. EPA, 549 U.S. 497, 525-26 and n. 23 (2007);
Clinton v. City of New York, 524 U.S. 417, 432-33 (1998);
Village of Elk Grove Village v. Evans, 997 F.3d 328, 329 (7th
Cir. 1993) (“even a small probability of injury is sufficient
to create a case or controversy—to take a suit out of the
category of the hypothetical—provided of course that
the relief sought would, if granted, reduce the probabil-
ity,” quoted approvingly in Massachusetts v. EPA, supra,
549 U.S. at 525 n. 23); see also Maine People’s Alliance v.
Mallinckrodt, Inc., 471 F.3d 277, 284-85 (1st Cir. 2006);
Mountain States Legal Foundation v. Glickman, 92 F.3d 1228,
12 No. 10-3488
1235-36 (D.C. Cir. 1996). “A suit to redress an injury to
the plaintiff is a ‘case’ or ‘controversy’ within the
meaning that the courts have imprinted on these words of
Article III of the Constitution, as long as there is some
nonnegligible, nontheoretical, probability of harm that
the plaintiff’s suit if successful would redress. As we
have noted repeatedly, the fact that a loss or other harm
on which a suit is based is probabilistic rather than
certain does not defeat standing.” MainStreet Organiza-
tion of Realtors v. Calumet City, supra, 505 F.3d at 744.
It is true that the district court (or this court) might
well hold that any bad effects of the landfill are not a
ground for invalidating the permit granted by the Corps
of Engineers, because the Corps was not required to
consider such effects in deciding whether to grant the
permit. Department of Transportation v. Public Citizen, 541
U.S. 752, 764, 767-68, 770 (2004); Ohio Valley Environ-
mental Coalition v. Aracoma Coal Co., 556 F.3d 177, 196-97
(4th Cir. 2009); City of Shoreacres v. Waterworth, 420 F.3d
440, 451-52 (5th Cir. 2005). But that would be a ruling
on the merits rather than on whether a probable injury
to the Conservancy’s members caused by a landfill
located less than a mile from the state park would be
averted were the permit invalidated. But cf. GrassRoots
Recycling Network, Inc. v. EPA, 429 F.3d 1109, 1111-12
(D.C. Cir. 2005).
Anyway it doesn’t matter whether the plaintiff has
standing to challenge the Corps’ permit on the basis of
the incremental effects of a proposed new landfill that
may never be built. The affiants want the 18.4 acres of
No. 10-3488 13
wetlands preserved, and they will be preserved if the
Corps’ permit is voided but destroyed if it is not.
The judge deemed “merely speculative” the contention
that destruction of the wetlands would, as stated in one
of the affidavits, “reduce the number and variety of
birds, butterflies, other insects, snakes and amphibians
that [the affiant] frequently observes around Horseshoe
Lake.” The judge said that the contention “disregards the
fact that 31% of the subject wetlands will be . . . preserved
[1 – 18.4/26.8 = .31] and that nearly twice the amount of
affected wetlands will be created in mitigation.” The
reference to the amount of wetlands that will be
preserved is beside the point, as is the remark about
mitigation because by the time the new wetlands reach
maturity and provide habitat for wildlife the affiant may
be dead of old age. Animals migrate to areas rich in
food and water, crowding the area until the supply of
nutrients is stretched to the point where it cannot
support any more animals. If a habitat is reduced in size
by more than two thirds, the supply of nutrients will be
reduced by roughly that fraction and many of the
animals will leave, starve to death, or fail to reproduce.
Butterflies rarely live more than six weeks; given their
short lifespans and limited range, destroying a small area
of wetland could destroy a butterfly population very
quickly.
Most animals whose habitat in the 18.4 acres of wetland
was destroyed would not be able to relocate to the pro-
posed mitigation area because about 80 to 85 percent of
the area is treeless—and birds and other wildlife need
14 No. 10-3488
shelter as well as food. They can’t wait for newly
planted trees in the mitigation area to mature. As one
affiant explains, “Some bird species nest in all trees, other
birds nest in understory trees and shrubs, and some nest
on the ground . . . . Yellow-throated Warbler, Northern
Parula, and Cerulean Warbler nest in tall sycamores.
Other species that nest in tall, mature trees include Balti-
more Orioles, Orchard Orioles, Summer Tanager, Scarlet
Tanager, Yellow-billed Cuckoo, Red-eyed Vireo, White-
eyed Vireo, Warbling Vireo, Yellow Warbler, Blue-gray
Gnatcatcher, Tufted Titmouse, and Eastern Kingbird.
These species could nest at various levels within a tall
tree but the maturity of the tree means that there are
many branches which offer protection; the leaves and
fullness of the tree keep the nests from being seen.”
Since Waste Management has committed to creating
twice the wetlands that it will destroy, maybe, despite
the probable delay in their developing to the point at
which they will provide habitat comparable to what is
to be destroyed, the permit granted by the Corps of
Engineers is actually a boon to the environment. But
that is a question that goes to the merits of the Conser-
vancy’s challenge to the Corps; it does not detract from
the injuries to the Conservancy’s current members, who
presented uncontradicted evidence that they will lose
present enjoyment of wildlife if the existing wetlands
are destroyed.
It might seem that 18.4 acres of wetlands would be
so small a fraction of the wetlands in the vicinity of
the park that their elimination would not reduce the
wildlife population seen by visitors by a perceptible
No. 10-3488 15
amount. But some of the species that dwell in the wetlands
have a limited range (we mentioned butterflies) and
so would be unlikely to wander from a farther distance
to the state park or its vicinity. And much of the Ameri-
can Bottom is urbanized, and we know that only a little
more than 10 percent of the tract designated for the
North Milam landfill consists of wetlands and that south
of that proposed landfill, at no great distance, is another
landfill, the Milam RDF, though its days may be num-
bered. The extent of wetlands that provide good habitat
for wildlife within range of Horseshoe Lake State Park
may be quite limited. Anyway the plaintiff’s affidavits
claim that the destruction of the 18.4 acres of wetlands
will reduce the amount of perceptible wildlife, and the
claim is not so implausible that it can be rejected with-
out counteraffidavits, which Waste Management has
not submitted. And if a really substantial elimination of
wildlife were required to establish standing, a cumula-
tively immense elimination of wildlife could occur as a
result of numerous small projects requiring destruction
of wetlands, none of which would create an injury
great enough to support standing if such a requirement
were imposed. See Public Interest Research Group of New
Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72
and n. 8 (3d Cir. 1990); Emily Longfellow, “Friends of
the Earth v. Laidlaw Environmental Services: A New Look
at Environmental Standing,” 24 Environs Environmental
L. & Pol’y J. 3, 15 (Fall 2000); Richard J. Lazarus, “Restoring
What’s Environmental About Environmental Law in the
Supreme Court,” 47 UCLA L. Rev. 703, 745-47 (2000).
One point remains to be addressed. Waste Management
(but not the Corps of Engineers) requests that in the
16 No. 10-3488
event we find standing (as we have just done), we
should nevertheless uphold the judgment of the district
court on the alternative ground that the court, had it not
decided the case on the basis of lack of standing, should
have granted summary judgment in favor of the defen-
dants—that is, have decided the merits in their favor.
The request is improper. The district court dismissed
the suit without prejudice, because on the view it took of
standing it had no jurisdiction; it therefore could only
dismiss without prejudice. Were we to decide the case
on the merits we would be directing the entry of judg-
ment with prejudice; otherwise the plaintiff would be
free to relitigate the case. An appellee who wants, not
that the judgment of the district court be affirmed on
an alternative ground, but that the judgment be changed,
in this case from a dismissal without to a dismissal with
prejudice, must file a cross-appeal, Greenlaw v. United
States, 554 U.S. 237, 244-45 (2008); Kamelgard v. Macura,
585 F.3d 334, 336 (7th Cir. 2009); Figueroa v. Rivera,
147 F.3d 77, 81 (1st Cir. 1998). Waste Management didn’t
do so.
The judgment is reversed with instructions to rein-
state the suit.
R EVERSED.
No. 10-3488 17
M AP OF S TATE P ARK AND L ANDFILL S ITES
18 No. 10-3488
D ETAILED M AP OF P ROPOSED L ANDFILL S ITE
6-14-11