Who can sue to protect a beetle?

November 22, 2011 | By DAMIEN SCHIFF

An interesting decision on the federal doctrine of standing came out last week from the District of Colorado.  Senior Judge John L. Kane ruled in WildEarth Guardians v. Salazar that the enviros’ lawsuit challenging the Fish and Wildlife Service’s denial of the enviros’ petition to list the Narrow-foot Hygrotus beetle under the Endangered Species Act had to be dismissed because enviros lacked “standing” to bring the suit.   (Standing is a jurisprudential doctrine that requires a federal plaintiff to establish a real concrete interest that is over and above the general “good government” interest of seeing the laws faithfully executed.  The doctrine also requires a minimal showing that the injury in question is traceable to the challenged governmental conduct and would be remedied, at least in part, by a favorable judicial decision).

The decision is noteworthy for at least two reasons.

First, the court allowed the feds to seek discovery from the enviros specifically to test whether they had standing to sue.

Second, the court ultimately held that the enviros lacked standing because they couldn’t produce a member who was both interested in the beetle’s survival and had actual plans to visit the beetle’s habitat.  The one member on whom the enviros had hoped to establish standing met, in the court’s view, the former requirement but failed the latter, i.e., could not show that he planned to visit the beetle’s habitat in Wyoming anytime soon.  The court, to its credit, reached that result notwithstanding rather extensive and gratuitous criticism of the Supreme Court’s articulation of standing doctrine.

Frankly, it’s unusual for an enviro group to lose on standing, in part because the federal courts have been especially solicitous to keep the courthouse doors open to environmental interests, through such related doctrines as
“aesthetic injury” and “procedural standing.”  Unfortunately, that same solicitude has rarely been vouchsafed to those federal litigants advancing the interests of private property.  Perhaps, then, with more decisions like Judge Kane’s, the playing field will begin to level.