Pollack v. United States Department of Justice

577 F.3d 736, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20183, 69 ERC (BNA) 1230, 2009 U.S. App. LEXIS 17998, 2009 WL 2461398

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 13, 2009
• Docket: 08-3857
• Status: Published

Opinions

MANION, Circuit Judge.

The United States government operates a gun range on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The plaintiffs appeal, and we affirm.

I.

In 1918, the United States Navy and Marine Corps began operating a gun range in North Chicago, Illinois. Over the years, many discharged lead bullets from the range landed in an area of Lake Michigan covering 2,975 acres. The military used the site until 1976 when the Federal Bureau of Investigation (“FBI”) leased the range. The FBI bought the site in 1987. At some point the range was improved by adding an earthen berm backstop to prevent bullets from landing in the lake. Despite the berm, some bullets escaped into Lake Michigan and nearby Foss Park.¹

In addition to this gun range, the government also operated a shotgun range on the site. Pellets from the shotguns landed in Lake Michigan. However, the government no longer operates a shotgun range there. Additionally, in 2006 the United States Coast Guard conducted live-fire exercises from boats on Lake Michigan using lead bullets and bullets from those exercises landed in the water. Lead is a toxic substance and, if ingested in sufficient quantities, poses a threat to human health.

Plaintiff Steven Pollack is an attorney who lives in Highland Park, Illinois, thirteen miles south of the range. He is the executive director of plaintiff Blue Eco Legal Council (“Blue Eco”), an environmental group “with an interest in the environmental safety of the Great Lakes watershed,” that, among other things, sues private and governmental polluters to enforce environmental laws. Pollack and Blue Eco brought this suit against the United States Department of Justice, the United States Coast Guard, the United States Department of the Navy, the United States Marine Corps, and the United States Department of Defense. The plaintiffs alleged that the deterioration of the lead bullets in the water harmed the environment, in violation of the Clean Water Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and state nuisance law. Pollack and Blue Eco sought $55.2 million in damages: $35.2 million to pay a private company to remove bullets from the lake bottom and $20 million in tort damages for public nuisance to fund a “supplemental environmental project” to be administered by environmental groups chosen by the court.

To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.

The defendants moved for dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing that the court lacked subject-matter jurisdiction because Pollack and Blue Eco did not possess constitutional standing to assert their claims. The district court granted the motion, concluding first that Pollack and Miller’s concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm by Pollack and Miller. Moreover, the district court held that their concerns over birds, fish, and wildlife were too general and did not allege any particular or specific harm that had been caused by the bullets. The district court concluded that because Pollack and Miller did not possess standing, Blue Eco did not possess standing on their behalf. Accordingly, the district court dismissed the suit for lack of subject-matter jurisdiction. The plaintiffs appeal.

II.

At issue in this case is Pollack’s and Blue Eco’s constitutional standing to bring this lawsuit. Under Article III of the Constitution, federal courts are limited to hearing “Cases” and “Controversies.” This provision limits the judicial power “to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.” Summers v. Earth Island Inst., — U.S. -, 129 S.Ct. 1142, 1148, 173 L.Ed.2d 1 (2009). This restriction on the power of the courts “ ‘is founded on concern about the proper — and properly limited——role of the courts in a democratic society.’ ” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Permitting a court to decide a case where the plaintiff does not have standing would “allow[ ] courts to oversee legislative and executive action” and thus “significantly alter the allocation of power ... away from a democratic form of government.” Id. at 1149 (quotation omitted).

In order to show standing, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.

Id.; accord Sierra Club v. Franklin County Power of III, LLC, 546 F.3d 918, 925 (7th Cir.2008). An organization has standing when any of its members has standing, the lawsuit involves interests “germane to the organization’s purpose,” and neither the claim asserted nor the relief requested requires an individual to participate in the lawsuit. Sierra Club, 546 F.3d at 924. At issue here is (a) whether Pollack has standing; and (b) whether Blue Eco has standing through Pollack or Miller. The plaintiffs bear the burden of proving standing. Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir.2004). We review a district court’s decision on standing de novo. Id.

Several Supreme Court decisions guide our analysis. In Summers, several environmental organizations challenged a decision of the United States Forest Service to permit a salvage sale of 238 acres of timber in Sequoia National Forest that had been damaged in a fire, without providing notice, a period for public comment, or an appeal process. 129 S.Ct. at 1147-48. The Forest Service acted according to its own regulations, which permit it to exempt from these requirements salvage sales of timber located on less than 250 acres. Id. at 1147. The environmental organizations filed suit to challenge the regulations. Id. at 1149. The organizations contended they possessed standing based on their members’ “recreational interest in the National Forests.” Id. at 1149. The government conceded that one member of the organizations had standing to challenge the sale of the 238 acres and the parties settled the claim relating to that particular salvage sale. Id. The organizations still asserted the facial challenge to the regulations themselves. The organizations submitted an affidavit of Jim Bensman, who asserted “that he has visited many National Forests and plans to visit several unnamed National Forests in the future.” Id. at 1150. Summers held that this affidavit was insufficient to provide standing, stating that it failed “to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman’s to enjoy the National Forests.” Id. Although Bensman’s affidavit did reference particular sales in the Allegheny National Forest, there was no “firm intention” to visit that area. Id. Summers stated that “[t]his vague desire to return is insufficient to satisfy the requirement of imminent injury.” Id. at 1150-51.

Conversely, the Supreme Court found standing to sue in Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In Laidlaw, a waste-water treatment plant obtained a state permit to discharge treated water containing known pollutants into a river. Id. at 175-76, 120 S.Ct. 693. Three environmental organizations sued, basing their standing on members affected by the pollution. For example, one member stated that she lived two miles from the river and that she had picnicked, walked, watched birds, and waded in the river before the pollution and because of the pollution had since ceased those activities. Id. at 182, 120 S.Ct. 693. Laidlaw held that this and similar statements “adequately documented injury in fact.” Id. at 183, 120 S.Ct. 693. Laidlaw explained that “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Id.

On the other hand, the Supreme Court held that environmental plaintiffs did not have standing in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In Lujan, an environmental organization challenged a governmental action that allegedly opened public lands for mining. Id. at 879, 110 S.Ct. 3177. The affidavit of one member stated:

My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass-Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass-Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands.

Id. at 886, 110 S.Ct. 3177 (emphasis added). Lujan held that standing was not established by “averments which state only that one of respondent’s members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action.” Id. at 889, 110 S.Ct. 3177.

In addition to these Supreme Court cases, Pollack directs our attention to our recent decision in Sierra Club v. Franklin County Power of Ill., in which we held that an environmental organization possessed standing to seek an injunction against a power company that had obtained a state permit to build a coal power plant in southern Illinois. 546 F.3d at 923. The environmental organization claimed standing based on a member who had vacationed every two years since 1987 on a lake three miles from the proposed site. Id. at 925. The member stated that she fished, kayaked, camped, and enjoyed the beauty of the lake, and that she would cease her trips if the power plant was built. Id. Franklin County held that the member had established injury-in-fact based on her “likely exposure” to pollutants from the coal power plant and the cessation of her vacation trips. Id. at 925-26. Moreover, the claimed injury was fairly traceable to the proposed power plant. Although the extent of pollution was unclear, we stated:

We agree that no one knows the ultimate magnitude of McKasson’s injury— for example, we don’t know if the particulate matter from the plant will blot out the sky or merely create a thin haze that’s not visible to the naked eye, or if the airborne mercury will actually spread 45 miles to poison fish that McKasson currently consumes from a pond near her home (which is another harm she claims she will suffer). We do know, however, that the plant will release some pollutants and that McKasson believes these pollutants will ruin her ability to enjoy Rend Lake and taint the surrounding area.

Id. at 927. Accordingly, we held that the member and thus the plaintiff organization had standing to challenge the building of the power plant.

Pollack also relies heavily on Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir.2000), in which the Fourth Circuit held that two individuals had standing to sue a smelting plant that was dumping pollutants upstream from them. One individual owned a home on the affected water where he fished, swam, and boated. Id. at 152-53. Another individual operated a canoeing company on the polluted river. Id. at 153. Based on these individuals’ standing, Gaston Copper held that their organizations had standing to challenge the release of the pollutants. Id. at 160.

As noted above, in this case Blue Eco bases its standing on nearly identical affidavits from two of its members, Pollack and Miller. Pollack essentially claims four injuries: (1) that he drinks water drawn from Lake Michigan for Highland Park and “other local municipalities” and the shooting of lead bullets pollutes this water; (2) that he enjoys “watching wildlife in the Great Lakes watershed” and that he “is concerned” about the effect on birds from the shooting; (3) that he enjoys “the public areas along the Illinois portion ,of Lake Michigan” and he is concerned that people in Foss Park and the adjoining beach will be hurt, thereby making it “less likely that [he] will visit” that park; and (4) that he enjoys “eating freshwater and ocean fish” and he is concerned that bullets fired into the water will “enter[ ] the water -column and bioaccumulat[e] in the tissues and organs of fish,” thereby lessening his desire to eat fish.

Pollack’s intention to drink water and his fear that his water has been contaminated by lead from bullets does not give rise to standing. He relies on Franklin County and Gaston Copper to argue that his drinking water taken from Lake Michigan gives him standing’. However, this case is materially distinguishable from those because Pollack is not downstream from the alleged pollutants and it is unclear whether their presence affects him. In Gaston Copper, the individuals were downstream from the entry point for the pollutants. Here, the ricocheting bullets from the Foss Park site and the shotgun range enter Lake Michigan at North Chicago, Illinois. Highland Park is approximately thirteen-miles from North Chicago and draws its water from a different section of Lake Michigan than North Chicago. It is unclear if any pollution from bullets discharged into Lake Michigan will travel the thirteen miles from Foss Park to Highland Park. To clarify this point, Pollack alleges that sediment in the region travels in a counter-clockwise direction, from Foss Park to Highland Park, and cites, a report of the Environmental Protection Agency. However, that report does not suggest that such a pattern of movement exists. See U.S. Envtl. Prot. Agency & Gov’t of Canada, The Great Lakes: An Environmental Atlas and Resource Book, ch. 2, § 4 (3d ed. 1995), available at http://www.epa.gov/glnpo/ atlas/index.html. Hence, Pollack has not satisfied his burden of showing that decaying bullets near North Chicago will affect his water supply in Highland Park. Pollack’s belief that the bullets affect him is also unlike the air pollution at issue in Franklin County, because it is commonly understood that air pollution can travel three miles through the air and different wind conditions could easily blow the pollution onto land at that distance. In contrast, it is not readily apparent that Pollack would be affected by the shooting at issue here.

Taken to its extreme, Pollack’s .argument would permit any. person living on or near Lake Michigan to assert that he has been harmed by the bullets, because the lead could potentially have been earned to every part of the lake. However, Lujan makes clear that when a vast environmental area is involved and the pollution affects one discrete area while a plaintiff intends to visit a different discrete area, that plaintiff does not have standing. Similarly, Pollack drinks treated water from one discrete area while the defendants’ activities affect a different discrete area. Without some support for the assertion that he will be affected by the drift of polluted sediment or water, Pollack has not shown that he has standing to pursue this lawsuit. Thus, because it is not readily apparent that Pollack would be affected by the discharge of bullets, he does not have standing based on Highland Park’s drinking water taken from Lake Michigan.

Similarly, Pollack has failed to connect his desire to eat fish with the bullets in the water. For one, his desire to eat ocean fish is not implicated because Lake Michigan is not the ocean. Moreover, Pollack never avers that he will eat fish from Lake Michigan itself; instead, he refers generally to “freshwater fish.” Hence, Pollack has not even claimed that he will eat fish from the affected region. This statement is unlike Laidlaw and Franklin County, where the individuals actually used the areas affected by pollution. Indeed, Pollack’s averment that he eats freshwater fish from some unnamed source is less suggestive of standing than the statements in Lujan' and Summers, where the individuals at least visited the general region affected by pollution. Accordingly, Pollack’s intention to eat freshwater fish from an unspecified source does not provide a basis for standing to sue.

Pollack’s desire to view wildlife and to visit local parks may both be considered a claim that he will suffer aesthetic harm from the gun range. While the Supreme Court clearly recognizes that aesthetic harms may give rise to standing, Summers, 129 S.Ct. at 1149, Lujan and Summers demonstrate that a plaintiff must show that he has actual aesthetic interest in the area affected by the pollution. When governmental action affects a discrete natural area, and a plaintiff merely states that he “uses unspecified portions of an immense tract of territory,” such averments are insufficient to establish standing. Lujan, 497 U.S. at 889, 110 S.Ct. 3177. Here, Pollack claims generally that he enjoys watching birds in the “Great Lakes watershed” and visiting public parks “along the Illinois portion of Lake Michigan.” However, he never claims that he visits Foss Park or watches birds in that area.² Instead, Pollack claims that he visits parks and watches birds within a vast territory. This claim is similar to the statements in Lujan and Summers, where the individuals never claimed to have a specific interest in the actual area affected by pollution. Summers, 129 S.Ct. at 1150; Lujan, 497 U.S; at 886, 110 S.Ct. 3177. Pollack fails to demonstrate, that his interest in birdwatching along an unspecified portion of the Great Lakes watershed — a region stretching from Minnesota to New York— will be affected by the shooting activities in a confined area of North Chicago. Similarly, the section of Lake Michigan bordering Illinois stretches for approximately 70 miles, and Pollack never specifies where along that shoreline he visits. Accordingly, his generalized statements that he visits the Illinois shoreline of Lake Michigan and watches birds in the Great Lakes watershed do not give rise to standing to challenge the shooting activities at issue here.

In short, Pollack’s and Miller’s interests are too generalized to give rise to standing. “At bottom [the plaintiffs] appear to seek the simple satisfaction of seeing the [environmental] laws enforced.” Jaramillo v. FCC, 162 F.3d 675, 677 (D.C.Cir.1998). However meritorious their case may be, the plaintiffs lacked a constitutional basis to bring this lawsuit.

III.

Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is Affirmed.

1 . After the FBI learned of bullets entering Foss Park, it closed the range in April 2008. The FBI improved the range and undertook further studies to prevent bullets from entering the park. According to a May 11, 2009, letter sent to the court, the FBI intends to reopen the range at the earliest possible date.

2 . Although Pollack visited Foss Park after he commenced suit, a plaintiff must establish standing at the time suit is filed and cannot manufacture standing afterwards. Laidlaw, 528 U.S. at 180, 120 S.Ct. 693 (stating that the court considers whether a plaintiff had standing "at the outset of the litigation”); Perry v. Village of Arlington Heights, 186 F.3d 826, 830 (7th Cir.1999) (stating that "[t]he requirements of standing must be satisfied from the outset”).