437 F.2d 1087 (9th Cir. 1971), 22961, Alameda Conservation Ass'n v. State of California

Docket Nº22961.
Citation437 F.2d 1087
Party NameALAMEDA CONSERVATION ASSOCIATION et al., Appellants, v. STATE OF CALIFORNIA et al., Appellees.
Case DateJanuary 19, 1971
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1087

437 F.2d 1087 (9th Cir. 1971)

ALAMEDA CONSERVATION ASSOCIATION et al., Appellants,

v.

STATE OF CALIFORNIA et al., Appellees.

No. 22961.

United States Court of Appeals, Ninth Circuit.

January 19, 1971

Page 1088

Funsten & Caldwell, James Funsten, and David B. Caldwell, San Francisco, Cal., for appellants.

Ralph Dau, argued, of O'Melveny & Myers, Thomas C. Lynch, Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., N. Gregory Taylor, Deputy Atty. Gen., Los Angeles, Cal., Landels, Ripley, Gregory & Diamond, San Francisco, Cal., for appellees.

Before HAMLEY, MERRILL and TRASK, Circuit Judges.

TRASK, Circuit Judge:

The Alameda Conservation Association and eight of its members appeal from the dismissal of their action brought against the State of California, the Leslie Salt Company and others in the District Court for the Northern District of 1850, 9 U.S. Statutes at Large 520 (43

The Association is a non-profit corporation having as one of its purposes the protection of the public interest in the waters of San Francisco Bay. The eight individual plaintiffs are among its members.

By their First Amended Complaint the plaintiffs seek: (1) to enjoin the defendants from completing a land exchange; (2) to declare 1959 California Statutes Chapter 1885 unconstitutional; (3) to enjoin Leslie Salt Company from filling or obstructing the bay; (4) to secure a general declaration of the rights of the people to the waterways and wildlife areas of the bay; (5) finally, to impanel a three-judge court.

The jurisdiction of the district court was invoked by the complaint under:

'* * * (a) The Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.A. Section 401, 403 and 406; (b) Article 1, Section 8, Clause 3, of the United States Constitution, commonly known as the Commerce Clause; (c) Section 3 of the Act of Congress for the Admission of the State of California into the Union, Volume 9, U.S. Statutes at Large, Pages 452 and 453; (d) The Swamp Act, September 28, 1850, 9 U.S. Statutes at Large 520 (43

Page 1089

U.S.C.A. § 981 et seq.); (e) The Act to Quiet Land Titles in California, 14 United States Statutes at Large, Chapter 218; and (f) Section 1 of the 14th Amendment to the Constitution of the United States of America (43 U.S.C. § 987).

* * * and upon Title 28 U.S.C. Sections 1331 and 1337.' C.T. 11.

The defendants moved to dismiss the action and to discharge two previously issued orders to show cause. The district court on April 2, 1968, granted the defendants' motion for failure of the complaint to state a claim upon which relief could be granted and also denied the request for a three-judge court. Jurisdiction in this court is based upon 28 U.S.C. § 1291.

After describing San Francisco Bay and outlining its importance, the complaint alleges that the defendant Leslie Salt Company claims to be the owner of 52,000 acres of submerged lands, tidelands, and swamp and overflow lands which Leslie contends it holds free from any public trust. Plaintiffs allege that said claims are defective in several respects which plaintiffs outline. The complaint then recites the enactment of 1959 California Statutes, Chapter 1885, providing for exchanges of land under specified conditions and alleges that an exchange of lands of San Francisco Bay is pending thereunder between the State of California and the Leslie Salt Company. Finally, the complaint alleges that the Leslie Salt Company has filled in thousands of acres of submerged lands and tidelands of the bay illegally and will fill in additional great portions of San Francisco Bay illegally unless restrained. The complaint then alleges that the plaintiffs reside upon and own real property so close to the bay that their health and the enjoyment of their property is materially affected by the filling of the bay and that they will be irreparably injured unless further obstruction and filling by Leslie is restrained. The injury is alleged to include;

'* * * destruction of fisheries and wildlife from which plaintiffs personally benefit and destruction of the flushing characteristics of the San Francisco Bay and its climate cooling affect * * *.' (sic)

The complaint was verified.

We agree with the court's decision as to the defendant Title Insurance and Trust Company and as to the State of California and the state defendants, hereinafter referred to collectively as the State; we disagree in part with the court's decision as to the defendant Leslie Salt Company.

The only relief sought against the Title Insurance and Trust Company was that it be enjoined from participating in proceedings to complete or quiet title to the exchange of lands described in the complaint between the State and Leslie. The exchange was completed prior to the filing of the complaint and the Title Company would have no interest in a quiet title proceeding. The matter is therefore moot. Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209 (1969); McKee & Co. v. First National Bank of San Diego, 397 F.2d 248 (9th Cir. 1965) (per curiam).

STANDING

With respect to the other parties we are confronted at the outset with the issue of standing. Each of the defendants asserts that none of the plaintiffs has standing to prosecute the action. The district court agreed and we therefore proceed to that issue.

It is alleged that the Alameda Conservation Association is a nonprofit corporation and has as one of its purposes the protection of the public interest in the waters of the San Francisco Bay. C.T. 11. Without more, this does not qualify the corporate entity to sue to declare the statute in question unconstitutional or to enjoin the acts of the public officials. The Association does not assert that any of its rights or properties are being infringed or threatened. Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970)

Page 1090

. It simply is not hurt in any practical way which entitles it to call upon the courts for redress or protection.

Standing is not established by suit initiated by this association simply because it has as one of its purposes the protection of the 'public interest' in the waters of the San Francisco Bay. However well intentioned the members may be, they may not by uniting create for themselves a super-administrative agency or a parens patriae official status with the capability of over-seeing and of challenging the action of the appointed and elected officials of the state government. Although recent decisions have considerably broadened the concept of standing, we do not find that they go this far. 1

Were it otherwise the various clubs, political, economic and social now or yet to be organized, could wreak havoc with the administration of government, both federal and state. There are other forums where their voices and their views may be effectively presented, but to have standing to submit a 'case or controversy' to a federal court, something more must be shown.

The dissent urges that the Association although a corporation and thus a legal entity separate and apart from its members, has standing. The corporation does not allege that it owns land bordering or near the bay or at all. It does not assert that it has any property interests of any kind real or personal which would sustain 'injury in fact', economic or otherwise, as a result of any of the defendants' activities. As a matter of fact, the only direct reference to the status of the corporation is in the introductory paragraph of the amended complaint which describes it as a non-profit corporation and states that all of the individual plaintiffs are members and that all of its members are residents of the State of California. Thereafter, the references in the complaint with respect to standing qualifications, refer to the individual plaintiffs and not the corporate plaintiff. However it is urged that standing exists in the corporation upon the basis of the 'nexus' doctrine. The suggestion is that the corporation may assert its members rights because it is in the best position to do so. Moreover, the Association's 'nexus' with its members gives it standing to appear as their representative in federal courts, it is asserted.

'Nexus' with relation to standing was discussed in Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). But the nexus the court was concerned with there was the link between the seven taxpayer appellants and the type of legislative enactment being attacked and the nature of the constitutional infringement alleged. It had nothing to do with the relationship between a corporation and its members or shareholders. The primary purpose in forming a corporation in most instances is not to give to the corporation an interest in the member's real property or other assets. Just the opposite. It is to be sure that the member's property interests will not be jeopardized by his associations

Page 1091

with others. It is not to create a nexus but to disconnect the member from the organization as to property, assets or liability. Nor does the fact that the corporate purposes are akin to those of its members make the corporation the authorized spokesman for the purpose of asserting its members constitutional rights. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). If the Association here had a recreational operation which it conducted and which the defendants interfered with, it could assert it; if its physical surroundings were made unattractive, this aesthetic infringement would create standing; or if it operated a conservation program, an interference with that operation would establish standing. 2 The point is that the standing necessary to assert as a litigant must be that of the litigant.

As stated in Flast, supra, standing focuses on the party seeking to place his complaint before the court, rather than the issue to be decided and the question is whether or not that party has a sufficiently personal stake in the...

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36 practice notes
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...Inc. v. Decatur County, Georgia, 482 F.2d 361 fn. 14 (C.A. 5, 1973). [54] Cf. also: Alameda Conservation Association v. California, 437 F.2d 1087 (C.A. 9, 1971), cert. den. 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 [55] This provision states: "Each department, agency and instrumental......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...423 F.2d 104, 106 (3d Cir. 1970). The rule in this Circuit is somewhat unclear. In Alameda Conservation Association v. California, 437 F.2d 1087, 1094-1095 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971), this Court concluded Page 583 that plaintiffs had standin......
  • 6 Cal.3d 251, 22566, Marks v. Whitney
    • United States
    • California United States State Supreme Court (California)
    • 9 Diciembre 1971
    ...the rights of the people to the waterways and wildlife areas of the bay (Alameda Conservation Association v. State of Cal. (9 Cir. 1971) 437 F.2d 1087, 1095--1098). Members of the public have been allowed Page 262 To defend a quiet title action by asserting the right to use a public right o......
  • Is 'diligent prosecution of an action in a court' required to preempt citizen suits under the major federal environmental statutes?
    • United States
    • William and Mary Law Review Vol. 38 Nbr. 4, May 1997
    • 1 Mayo 1997
    ...Paper Co., 327 F. Supp. 87 (D. Minn. 1971) (dismissing a Refuse Act qui tam suit), with Alameda Conservation Ass'n v. California, 437 F.2d 1087 (9th Cir. 1971) (allowing a Refuse Act qui tam suit). (30.) See Blomquist, supra note 4, at 366-67. (31.) See Sierra Club v. Chevron U.S.A., Inc., ......
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35 cases
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • 17 Septiembre 1979
    ...Inc. v. Decatur County, Georgia, 482 F.2d 361 fn. 14 (C.A. 5, 1973). [54] Cf. also: Alameda Conservation Association v. California, 437 F.2d 1087 (C.A. 9, 1971), cert. den. 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 [55] This provision states: "Each department, agency and instrumental......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...423 F.2d 104, 106 (3d Cir. 1970). The rule in this Circuit is somewhat unclear. In Alameda Conservation Association v. California, 437 F.2d 1087, 1094-1095 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971), this Court concluded Page 583 that plaintiffs had standin......
  • 6 Cal.3d 251, 22566, Marks v. Whitney
    • United States
    • California United States State Supreme Court (California)
    • 9 Diciembre 1971
    ...the rights of the people to the waterways and wildlife areas of the bay (Alameda Conservation Association v. State of Cal. (9 Cir. 1971) 437 F.2d 1087, 1095--1098). Members of the public have been allowed Page 262 To defend a quiet title action by asserting the right to use a public right o......
  • 329 F.Supp. 504 (D.N.J. 1971), Civ. A. 1037-70, Cape May County Chapter, Inc., Izaak Walton League of America v. Macchia
    • United States
    • Federal Cases United States District Courts 3th Circuit United States District Courts. 3th Circuit. District of New Jersey
    • 16 Junio 1971
    ...Company, 323 F.Supp. 487 (D.C.Del.1971). There are, of course, cases to the contrary. See e.g. Alameda Conservation Ass'n v. Calif., 437 F.2d 1087 (9 Cir. 1971); Sierra Club v. Hickel, 433 F.2d 24 (9 Cir. 1970), comment 71 Col.L.Rev. 172 (1971), cert. granted, 401 U.S. 907, 91 S.Ct. 870, 27......
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