United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2014 Decided August 26, 2014
No. 12-5383
SIERRA CLUB, ET AL.,
APPELLANTS
v.
SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF
THE U.S. DEPARTMENT OF INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01513)
Daniel P. Selmi argued the cause for appellants. With
him on the briefs were Aaron S. Isherwood, Peter M. Morgan,
Andrea C. Ferster, and Elizabeth S. Merritt. Paul W.
Edmondson entered an appearance.
Judith Rivlin was on the brief for amicus curiae United
Mine Workers of America in support of appellants. Arthur
Traynor III entered an appearance.
Katherine J. Barton, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Robert G. Dreher, Acting Assistant Attorney General,
2
and David C. Shilton, Attorney. Andrew C. Mergen,
Attorney, U.S. Department of Justice, entered an appearance.
Robert G. McLusky, Blair M. Gardner, and Michael J.
Schrier were on the brief for amicus curiae West Virginia
Coal Association, Inc. in support of appellees.
Before: GARLAND, Chief Judge, SRINIVASAN, Circuit
Judge, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
Dissenting opinion filed by Senior Circuit Judge
SENTELLE.
SRINIVASAN, Circuit Judge: The Battle of Blair
Mountain is the largest armed labor conflict in our nation’s
history. In late August 1921, after years of tension between
coal miners and coal companies, more than 5,000 West
Virginia coal miners began a march to Logan and Mingo
Counties, West Virginia. They aimed to unionize and liberate
fellow miners living under martial law. When they reached
Blair Mountain, a 1,600-acre area in Logan County, they
encountered roughly 3,000 armed men. Those men, mostly
hired by coal companies, manned a ten-mile defensive line
across Spruce Fork Ridge, including Blair Mountain. They
dug trenches, mounted machine guns, and dropped homemade
bombs. The miners responded with gunfire of their own. The
Battle endured for several days, causing numerous casualties.
President Harding sent federal troops to quell the fighting, and
the coal miners surrendered.
Recently, various environmental and historical
preservation organizations, recognizing Blair Mountain
Battlefield’s historical significance, have sought to gain
3
protection for the Battlefield from surface coal mining. This
case arises from their efforts to obtain the Battlefield’s listing
in the National Register of Historic Places. After several
unsuccessful nominations for its inclusion in the Register, the
Battlefield gained listing in 2009. Its stay in the Register was
short-lived. Within days, the Keeper of the Register removed
the Battlefield upon determining that the wishes of area
property owners had not been accurately captured in the
nomination process. The organizations then brought an action
in federal court challenging the Battlefield’s removal from the
Register. The district court granted summary judgment
against them, holding that they lack standing because they fail
to demonstrate the requisite injury, causation, or
redressability. We disagree and conclude that they have
standing to challenge the Keeper’s decision.
I.
On January 13, 2009, the Deputy West Virginia State
Historic Preservation Officer (SHPO) nominated the
Battlefield to the Keeper of the National Register of Historic
Places for inclusion in the Register. Under both federal and
state law, listing of a place in the Register triggers
establishment of certain protections, including minimization
of adverse impacts from surface mining. See 30 C.F.R.
§ 780.31(a); W. Va. Code R. § 38-2-3.17.c. For a site to be
listed in the Register, a majority of property owners in the
area must not object. See 16 U.S.C. § 470a(a)(6); 36 C.F.R.
§ 60.6(g). If a majority object, the site cannot gain listing.
See 16 U.S.C. § 470a(a)(6); 36 C.F.R. § 60.6(n), (s). For the
January 2009 nomination of the Battlefield, the SHPO
initially determined that a majority of property owners did not
object to inclusion of the Battlefield in the Register.
Following that determination, on March 30, 2009, the Keeper
listed the Battlefield in the Register.
4
One week later, the SHPO notified the Keeper that he had
failed to account for a number of objections to the listing,
which he had received from a law firm representing several
coal companies. When the SHPO took into consideration the
additional objections, he found that a majority of landowners
objected to the Battlefield’s inclusion in the Register. The
SHPO therefore asked the Keeper to remove the Battlefield
from the Register. After soliciting and considering
comments, the Keeper delisted the Battlefield, agreeing that
there had been prejudicial procedural error in the listing
process. See 36 C.F.R. § 60.15(a)(4).
The Sierra Club, the Ohio Valley Environmental
Coalition, and other organizations (collectively, the Coalition)
filed an action in federal district court against the Keeper, the
Secretary of the Interior, and the Director of the National Park
Service (collectively, the Interior). The Coalition claimed that
the Keeper’s decision to delist the Battlefield was arbitrary
and capricious, and sought vacatur of the decision and
relisting of the Battlefield as of March 30, 2009. The district
court granted summary judgment to the Interior, holding that
the Coalition failed to establish standing to bring the action.
Sierra Club v. Salazar, 894 F. Supp. 2d 97, 114 (D.D.C.
2012).
According to the district court, the Coalition could not
demonstrate any of the three components of standing: injury
in fact, causation, or redressability. With regard to injury in
fact, the court held that the Coalition failed to show that any
injury was “actual or imminent.” Id. at 110 (internal
quotation marks omitted). Even though “a considerable
amount of the Battlefield is . . . currently subject to surface
mining permits,” there was no actual or imminent injury
because the coal companies had yet to mine the Battlefield
under the permits. Id. at 110. The court viewed any claim of
5
future mining to be “purely conjectural,” reasoning that
certain permits had been in existence for years with no mining
on the Battlefield. Id. at 112. The Coalition also could not
satisfy causation because its concerns depended on
“speculative predictions about the actions of third parties, the
coal mining companies.” Id. at 113. Turning to
redressability, the court acknowledged that federal and West
Virginia mining law generally prohibited surface mining on
property listed in the Register. Id. at 114 (citing 30 U.S.C.
§ 1272(e)(3)). Those prohibitions, however, contained an
exemption for permits with valid existing rights. Id.
According to the district court, the coal companies likely had
valid existing rights because the permits had been “acquired
prior to the historic district’s inclusion on the National
Register.” Id. Therefore, the court held, “surface mining
would be permitted on the Blair Mountain Battlefield” even if
the Keeper relisted the Battlefield. Id.
The Coalition now appeals. We review the district
court’s decision on standing de novo. See In re Endangered
Species Act Section 4 Deadline Litig., 704 F.3d 972, 976
(D.C. Cir. 2013).
II.
To establish standing to sue for purposes of Article III of
the Constitution, the Coalition must show: (1) “an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,
180-81 (2000) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). At summary judgment, “the
6
plaintiff . . . must ‘set forth’ . . . ‘specific facts’” supporting
standing. Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P.
56(e)). We conclude that the Coalition has adequately
demonstrated injury in fact, causation, and redressability.
A.
To demonstrate injury in fact, the Coalition must show
that the asserted injury to its members is concrete and
particularized, and is also actual or imminent. The Coalition
makes both of those showings.
1.
The Supreme Court has recognized that harm to “the
mere esthetic interests of the plaintiff . . . will suffice” to
establish a concrete and particularized injury. Summers v.
Earth Island Inst., 555 U.S. 488, 494 (2009). In Lujan, for
instance, the Court explained that, “[o]f course, the desire to
use or observe an animal species, even for purely esthetic
purposes, is undeniably a cognizable interest for purpose of
standing.” 504 U.S. at 562-63. This court has similarly
understood that “injury in fact can be found when a defendant
adversely affects a plaintiff’s enjoyment of flora or fauna.”
Am. Soc’y for Prevention of Cruelty to Animals v. Ringling
Bros. & Barnum & Bailey Circus, 317 F.3d 334, 337 (D.C.
Cir. 2003). We explained that a person “may derive great
pleasure from visiting a certain river; the pleasure may be
described as an emotional attachment stemming from the
river’s pristine beauty.” Id. at 337-38 (citing Laidlaw, 528
U.S. at 182-83); see Animal Legal Def. Fund, Inc. v.
Glickman, 154 F.3d 426, 431 (D.C. Cir. 1998) (en banc)
(relying on “aesthetic interest in observing animals living
under humane conditions”).
7
Here, similarly, Coalition members who 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. Two individuals each
explained that “[s]urface mining at Blair Mountain would
directly and indirectly harm my ability to use, enjoy, and
appreciate the historic Battlefield and its landscape.”
Rasmussen Decl. ¶ 10; Ziehl Decl. ¶ 10. Members also
expressed an interest in preserving the “beautiful mountain
landscape,” observing that their “ability to visit and enjoy the
. . . surrounding areas would be adversely impacted by
keeping Blair Mountain Battlefield off of the National
Register of Historic Places.” Hendrix Decl. ¶ 14; see also
Simmons Decl. ¶ 9. Other individuals visit and study the
Battlefield for educational purposes. See Rasmussen Decl.
¶¶ 2-6. And one person, whose grandfather fought at the
Battle of Blair Mountain and who plans to continue visiting
the site, stated that mining of the Battlefield would “destroy a
virtually holy place” that he considers “sacred ground.”
Martin Decl. ¶ 11. Those Coalition members possess
concrete interests in appreciating and studying the aesthetic
features and historical significance of a preserved and intact
Battlefield. Their interests would be injured if the Battlefield
were mined.
Amicus West Virginia Coal Association argues that the
Coalition cannot demonstrate injury in fact because the
individuals whose interests would be injured by mining of the
Battlefield own no legal right to enter the Battlefield area. It
is true that the Battlefield area is privately owned (with the
majority of property owned by members of the Coal
Association). It is also true that the Coalition puts forward no
evidence that its members—although apparently having
frequently entered the Battlefield area in the past—possess
8
any legal entitlement to set foot on the privately owned
property. But even assuming those individuals no longer
possess any ability to enter the Battlefield site itself, there
would be no need for them to commit a trespass in order to
experience a cognizable injury. They possess interests in
observing the landscape from surrounding areas, for instance,
or in enjoying the Battlefield while on public roads. See
Martin Decl. ¶ 9 (“At least four times I have visited a friend
across the highway from Blair Mountain . . . and have driven
across Blair [M]ountain twenty times or more.”). Their
cognizable interests thus do not depend on any legal right to
make a physical entry onto the Battlefield. And while the
Supreme Court in Lujan spoke in terms of a “legally protected
interest,” 504 U.S. at 560, this court has specifically
recognized that, when the Lujan “Court used the phrase
‘legally protected interest’ as an element of injury-in-fact, it
. . . was referring only to a cognizable interest.” Parker v.
District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007)
aff’d sub nom. District of Columbia v. Heller, 554 U.S. 570
(2008) (internal quotation marks omitted). Lujan therefore
“concluded that plaintiffs had a cognizable interest in
observing animal species without considering whether the
plaintiffs had a legal right to do so.” Id. (internal quotation
marks omitted). Accordingly, there is no reason that the
cognizability of aesthetic and associated interests in a
particular site could turn on owning a legal right to enter or
view the property.
This court’s decision in National Wildlife Federation v.
Hodel, 839 F.2d 694 (D.C. Cir. 1988), is illustrative.
National Wildlife involved a multitude of challenges to
regulations promulgated under the Surface Mining Control
and Reclamation Act. One regulation expanded a variance
from a statutory requirement generally obligating mining
companies to return mined land to its approximate original
9
contours. Id. at 714-15. In holding that the plaintiffs had
established standing to challenge the expanded variance, the
court referenced only one individual’s affidavit. And the
court pointed specifically (and exclusively) to a portion of her
affidavit “expressing concern over ‘granting [of] any
variances to allow leaving highwalls on non-steep slopes’ on
land near her home because ‘[s]uch a variance would
adversely impact my enjoyment of the natural vistas of these
hills.’” Id. at 715 (quoting affidavit) (alterations in original).
The court thus relied solely on impairment of the affiant’s
ability to enjoy the “natural vistas” of the nearby hills from
her own home, regardless of the absence (or existence) of any
legal right on her part to view or make an entry onto the
nearby hills. Id.; see also Am. Bird Conservancy, Inc. v. FCC,
516 F.3d 1027, 1031 (D.C. Cir. 2008) (per curiam)
(“Petitioners have standing, for members of these
organizations engage in recreational birdwatching and
research on birds in the Gulf Coast region.”). As another
court of appeals has explained, “[i]f an area can be observed
and enjoyed from adjacent land, plaintiffs need not physically
enter the affected area to establish an injury in fact.” Cantrell
v. City of Long Beach, 241 F.3d 674, 681 (9th Cir. 2001).
That understanding governs here.
2.
The Coalition also satisfies its burden to show that its
members’ injuries are actual or imminent. Because there is
no allegation that any mining has already occurred in the
Battlefield, we deal solely with the question whether the
asserted injuries qualify as imminent. A plaintiff must show a
“substantial probability of injury” to establish imminent
injury. Chamber of Commerce of the U.S. v. EPA, 642 F.3d
192, 200 (D.C. Cir. 2011) (alterations and internal quotation
marks omitted); see Clapper v. Amnesty Int’l USA, 133 S. Ct.
10
1138, 1147-48, 1150 & n.5 (2013) (observing that injury must
be “certainly impending” rather than “premised on a
speculative chain of possibilities,” and noting that “we have
found standing based on a ‘substantial risk’ that the harm will
occur”).
The undisputed facts demonstrate the requisite
“substantial probability” of injury here. First, coal companies
have mined in the vicinity of the Battlefield under permits that
encompass the Battlefield. See S. Utah Wilderness Alliance v.
Office of Surface Mining Reclamation & Enforcement, 620
F.3d 1227, 1233 (10th Cir. 2010) (holding that environmental
group’s injury “results from [company’s] ability to commence
mining operations” due to possession of surface mining
permit). The Coalition directs us to two active permits that
encompass the Battlefield area: the “Camp Branch” permit
and the “Bumbo No. 2” permit. The Camp Branch permit
covers approximately 1,100 acres, including a portion of the
Battlefield area. At the time of the complaint, the West
Virginia Department of Environmental Protection—which is
charged with issuing the permits—classified the Camp
Branch permit as “active, moving coal,” indicating that
mining was proceeding under the permit. Additionally, one
of the organizations in the Coalition prepared a report
addressing the impact of surface mining at Blair Mountain;
and that report stated, with regard to the Camp Branch permit,
that “[m]ining is roughly 800-1200 meters away from the
battlefield perimeter” and “is moving eastward toward the
battlefield.” The Interior has not disputed those conclusions
in the report. Meanwhile, the Bumbo No. 2 permit spans over
1,500 acres, including 590 acres in the center of the
Battlefield. The report of the Coalition organization found
that mining under the Bumbo No. 2 permit has disturbed at
least 300 acres near the Battlefield, and the Interior also has
not disputed that conclusion.
11
In holding that the Coalition fails to establish imminent
injury, the district court emphasized that the permits have
existed for over ten years without any mining in the
Battlefield to this point. Sierra Club, 894 F. Supp. 2d at 112.
The coal companies themselves, however, assert an
expectation that they would mine in the Battlefield under the
permits. In apparent recognition of the significance of the
Battlefield site to their mining interests, the companies did not
act as disinterested bystanders in connection with the
Battlefield’s nomination for inclusion in the Register.
Instead, in a letter objecting to the listing of the Battlefield in
the Register, the coal companies—including the holders of the
Camp Branch and Bumbo No. 2 permits—explained that they
“own[] or lease[] minerals, particularly coal, with the
expectation of developing them in the nomination area.”
Letter from Blair M. Gardner, Esq., Jackson Kelly PLLC, to
Barbara Wyatt, Keeper (emphasis added). That statement of
the companies’ own expectations, coupled with their conduct
of mining operations close to the Battlefield under permits
encompassing the Battlefield itself, suffices to establish a
substantial probability of mining in the Battlefield. The
Coalition therefore adequately demonstrates that its injury is
“actual or imminent, not conjectural or hypothetical.”
Laidlaw, 528 U.S. at 180.
B.
The remaining prongs of standing consist of causation
and redressability. The Coalition must 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.” Laidlaw, 528 U.S.
at 180-81. In this case, those inquiries are “two sides of a
causation coin.” Dynalantic Corp. v. Dep’t of Def., 115 F.3d
1012, 1017 (D.C. Cir. 1997). Whether the asserted injuries
12
are fairly traceable to the Keeper’s delisting of the Battlefield
and whether the injuries are redressable both depend on the
extent to which inclusion in the Register would afford the
Battlefield protections from surface mining. We conclude
that the Coalition meets the causation and redressability
requirements.
The district court believed it likely under West Virginia
law that surface mining would continue even if the Battlefield
were relisted. According to the Coalition, however, even if
surface mining could continue upon a relisting of the
Battlefield, West Virginia law affords additional protections
to places listed in the Register. The Coalition points to a
regulation providing 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 Interior’s principal
response is that the Coalition forfeited that argument by
failing to raise it in the district court. We disagree. In its
briefing in the district court addressing the question of
redressability, the Coalition argued that West Virginia mining
law provided protections to places listed in the Register,
specifically identifying and quoting from the same regulation
on which it now relies. See Pls.’ Summ. J. Opp’n & Reply at
6 (quoting W. Va. Code R. § 38-2-3-17.c). That was more
than enough to preserve the argument for appeal.
On the merits of the issue, the Interior contends that § 38-
2-3.17.c applies only to initial permit applications but not to
the permit renewals that generally take place every five years.
At the time of the initial applications for the Camp Branch
and Bumbo No. 2 permits, the Battlefield had not been listed
in the Register. Consequently, the Interior argues, the
regulation could not affect mining operations under the Camp
Branch and Bumbo No. 2 permits. We conclude, however,
that for purposes of demonstrating causation and
13
redressability, there is an adequate possibility that the
regulation would apply to renewals of those permits and not
only to the initial applications.
Because “this court’s jurisdiction turns on whether a
proper interpretation of” West Virginia law “precludes the
relief” the Coalition desires, the Coalition “need not convince
this court that its interpretation is correct.” Ark Initiative v.
Tidwell, 749 F.3d 1071, 1076 (D.C. Cir. 2014). To satisfy
redressability and causation, the Coalition’s interpretation of
the minimization requirement instead must be “non-
frivolous.” Id. (emphasis omitted) (quoting United Transp.
Union-Ill. Legislative Bd. v. STB, 175 F.3d 163, 166 (D.C.
Cir. 1999)); see also Info. Handling Servs., Inc. v. Def.
Automated Printing Servs., 338 F.3d 1024, 1030 (D.C. Cir.
2003) (“[A] plaintiff’s non-frivolous contention regarding the
meaning of a statute must be taken as correct for purposes of
standing.”).
The Coalition’s interpretation of West Virginia law meets
that standard. Although the minimization requirement is not
located in the “Permit Renewals” subsection of § 38-2-3, a
permit cannot be renewed if the “terms and conditions of the
existing permit are not being satisfactorily met.” W. Va.
Code § 22-3-19(a)(1)(A). And when certain terms and
conditions “become applicable after the original date of
permit issuance,” the permittee has “a reasonable period to
comply with such revised requirements.” Id. According to
the Coalition, the minimization requirement, which would
take effect after the listing of the Battlefield in the Register,
constitutes a “requirement[]” that would “become applicable
after . . . permit issuance.” The Interior’s response rests on
interpretations of federal mining regulations, which it
contends impose a minimization requirement only at the time
of permit application, not renewal. See 30 C.F.R. § 780.31.
14
Even if that interpretation of federal law is correct, however,
it is not necessarily dispositive of West Virginia law, which
could impose broader protections. See 30 C.F.R. § 730.11(a)-
(b). We need not resolve the issue for purposes of assessing
the Coalition’s standing, but need only assess whether the
Coalition’s argument is non-frivolous. We conclude that it is.
The Interior also argues that the minimization
requirement would afford no additional protections to the
Battlefield over those already granted by West Virginia law.
The Interior relies on § 38-2-3.17.d, under which the West
Virginia Department of Environmental Protection “may
require the [permit] applicant to protect historic . . . properties
. . . through appropriate mitigation and treatment measures.”
W. Va. Code R. § 38-2-3.17.d. That provision applies both to
places already listed in the Register and to places (like the
Battlefield) eligible for future listing. Id. But even assuming
that “appropriate mitigation and treatment measures” under
that provision are no less protective than the requirement to
“minimize” all “adverse impacts” under § 38-2-3.17.c, the
former protections lie within the discretion of the Department:
for sites eligible to be listed in the Register, the Department
“may” elect to “require” mitigation and treatment measures,
or “may” elect not to do so. W. Va. Code R. § 38-2-3.17.d.
For sites already listed in the Register, by contrast, the
obligation under § 38-2-3.17.c to minimize adverse impacts is
expressed in mandatory terms. The Coalition’s argument that
§ 38-2-3.17.c affords greater protections than otherwise arise
under West Virginia law therefore is at least non-frivolous,
and suffices to establish causation and redressability.
15
* * * * *
We reverse the judgment of the district court and remand
for further proceedings.
So ordered.
SENTELLE, Senior Circuit Judge, dissenting: I would affirm
the grant of summary judgment by the district court. I agree
with that court that the federal courts have no jurisdiction over
this action. My reasoning is not precisely the same as the lower
court. This, of course, presents no problem, as we review a
district court’s grant of a “motion to dismiss for lack of
standing” de novo. Info. Handling Servs., Inc. v. Def. Automated
Printed Servs., Inc., 338 F.3d 1024, 1029 (D.C. Cir. 2003).
The majority opinion sets forth the facts and the history of
this matter, and I have no reason to rehash the same here. The
majority also sets forth the requirements for standing:
(1) “an ‘injury in fact’ that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.”
Maj. Op. at 5 (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))). Again,
I have no quarrel with the majority’s recitation of the matters of
principle, but I do conclude that its application of the first
element is too broad. As the Supreme Court has made plain,
“the plaintiff must have suffered an ‘injury in fact’—an invasion
of a legally protected interest . . . .” Lujan, 504 U.S. at 560
(emphasis added). The interest appellants asserted in this case
was their interest in viewing the property of others. I know of
no legal protection for that interest, nor have either the
appellants or the majority made me aware of any.
It is true, as the majority asserts, “that harm to ‘the mere
esthetic interest of the plaintiffs . . . will suffice’ to establish a
concrete and particularized injury.” Maj. Op. at 6 (quoting
Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009)).
2
However, this does not establish that the legally protected
aesthetic interest of would-be plaintiffs encompasses the legally
protected right to peer into the property of others. It is true, as
the majority states, that such cases as Animal Legal Def. Fund,
Inc. v. Glickman, 154 F.3d 426, 431 (D.C. Cir. 1998) (en banc),
and Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 180-81 (2000), may support a generalization that
“injury in fact can be found when a defendant adversely affects
a plaintiff’s enjoyment of flora or fauna,” Maj. Op. at 6 (quoting
Am. Soc’y for Prevention of Cruelty to Animals v. Ringling Bros.
& Barnum & Bailey Circus, 317 F.3d 334, 337 (D.C. Cir.
2003)). Nonetheless, none of these cases 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 viewing. As the majority recognizes, “the
Coalition [appellants] puts forward no evidence that its members
. . . possess any legal entitlement to set foot on the privately
owned property.” Maj. Op. 8. The majority fails to recognize
that neither have they put forth any evidence of any legal
entitlement to view that property.
As the Supreme Court has made clear, parties invoking
federal jurisdiction bear the burden of establishing an “invasion
of a legally protected interest.” Lujan, 504 U.S. at 560
(emphasis added).1 Appellants have offered nothing to establish
1
Nothing in the majority’s reliance on the reformulation of
Lujan’s language in Parker v. District of Columbia, 478 F.3d 370
(D.C. Cir. 2007), aff’d in part sub nom. District of Columbia v. Heller,
554 U.S. 570 (2008), convinces me to the contrary. The
transformation of “legally protected interests” to “cognizable
interests” effected by the Parker court relies on Claybrook v. Slater,
111 F.3d 904 (D.C. Cir. 1997), which establishes that we need not
explore the merits of a claim in order to determine the claimant’s
standing. It remains the case that “if the plaintiff’s claim has no
3
the invasion of any such interest. The dismissal of this action
should be affirmed.
foundation in law, he has no legally protected interest and thus no
standing to sue.” Claybrook, 111 F.3d at 907.