Save Our Springs Alliance, Inc. v. City of Dripping Springs Todd Purcell, in His Official Capacity as Mayor of the City of Dripping Springs And Mak Foster Ranch, L.P.
Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR RECONSIDERATION EN BANC
NO. 03-04-00683-CV
Save Our Springs Alliance, Inc., Appellant
v.
City of Dripping Springs; Todd Purcell, in his Official Capacity as Mayor of the City of Dripping Springs; and Mak Foster Ranch, L.P., Appellees
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 02-1748, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
Review en banc is warranted to "secure or maintain uniformity" of this Court's decisions. See Tex. R. App. P. 41.2(c). Because the two-justice panel's decision is inconsistent with this Court's jurisprudence in an important and recurring area of law--an association's standing to pursue its member's claims of environmental harm--I respectfully dissent from the denial of appellant's motion for en banc reconsideration.
The panel holds that, in the absence of a statute conferring standing, appellant Save Our Springs Alliance, Inc. ("SOS Alliance") was required to show that one of its members had a property interest affected by appellees' actions. The panel's holding, narrowing the class of claimants with common law standing to assert recreational, scientific, and environmental harm, conflicts with other opinions of this Court. See Texas Rivers Prot. Ass'n v. Texas Natural Res. Conservation Comm'n, 910 S.W.2d 147, 151-52 (Tex. App.--Austin 1995, writ denied).
In Texas Rivers Protection Association, this Court held that "[a]n injury need not affect 'vested' property rights to confer standing" and that "the harm [for purposes of standing] may be economic, recreational, or environmental." See id.; see also Coastal Habitat Alliance v. Public Util. Comm'n, 294 S.W.3d 276, 287 (Tex. App.--Austin 2009, no pet.) (recognizing this Court's holding in Texas Rivers Protection Association that "[a]n injury need not affect 'vested' property rights to confer standing" and, thus, "the harm [for purposes of standing] may be economic, recreational, or environmental") (1); Walker v. City of Georgetown, 86 S.W.3d 249, 253 (Tex. App.--Austin 2002, pet. denied) (common law rule for standing to enjoin actions of governmental body satisfied if "the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise"); Lindig v. City of Johnson City, No. 03-08-00574-CV, 2009 Tex. App. LEXIS 8188, at *19-20 (Tex. App.--Austin Oct. 21, 2009, no pet.) (op. on reh'g) (citing common law rule for standing in Walker).
The panel cites Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), and Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976), to support its holding that SOS Alliance was required to show that one of its members had an affected property interest to have standing. Neither case, however, supports curtailing common law standing here. That a party does not have standing to assert a fraud claim when he was not the defrauded party is not analogous to SOS Alliance's alleged injury to its members' environmental, recreational, and scientific interests in public land. See Nobles, 533 S.W.2d at 927.
As to Lujan, the panel cites the Supreme Court's definition of "injury in fact." See 504 U.S. at 560. In the context of standing under Article III of the United States Constitution, the Supreme Court defined "injury in fact" as "an invasion of a legally protected interest which is . . . concrete and particularized" and "'actual or imminent.'" Id. (citation omitted); see also U.S. Const. art. III. The panel focuses on the Supreme Court's requirement that the interest be "legally protected," but the Supreme Court did not purport to restrict standing to property owners affected by the challenged action there.
In that case, environmental associations on behalf of their members challenged a rule promulgated by the Secretary of the Interior concerning certain funded activities abroad that allegedly increased the rate of extinction of endangered and threatened species. Lujan, 504 U.S. at 562. Although the Supreme Court concluded that the associations failed to show injury in fact to have standing to seek judicial review of the rule, the Supreme Court recognized 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." Id. at 562-63. The Supreme Court denied associational standing, not because a member did not have a property interest, but because the associations failed to demonstrate redressability and "actual or imminent" injury--i.e., that a member had "concrete plans" to visit an area affected by the rule. Id. at 564, 568.
The Supreme Court more recently addressed injury in fact in the context of allegations of environmental harm to the national forests:
It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members' recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.
See Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)) ("We have held 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."); Bennett v. Spear, 520 U.S. 154, 167 (1997) (defining injury in fact as "an invasion of a judicially cognizable interest"). Consistent with its decision in Lujan, the Supreme Court denied standing to challenge the regulations at issue because there was no live dispute over a concrete application of the regulations, not because the organizations failed to show a property interest by their members to confer standing. 129 S. Ct. at 1152-53. (2)
This Court's holding in Texas Rivers Protection Association
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Save Our Springs Alliance, Inc. v. City of Dripping Springs Todd Purcell, in His Official Capacity as Mayor of the City of Dripping Springs And Mak Foster Ranch, L.P. (Save Our Springs Alliance, Inc. v. City of Dripping Springs Todd Purcell, in His Official Capacity as Mayor of the City of Dripping Springs And Mak Foster Ranch, L.P.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.