Pollack v. U.S. Dept. of Justice

• Decision Date: 13 August 2009
• Docket Number: No. 08-3857.,08-3857.
• Citation: 577 F.3d 736
• Parties: Steven B. POLLACK and Blue Eco Legal Council, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

577 F.3d 736

Steven B. POLLACK and Blue Eco Legal Council, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.

No. 08-3857.

United States Court of Appeals, Seventh Circuit.

Argued May 8, 2009.

Decided August 13, 2009.

Steven B. Pollack (argued), Highland Park, IL, pro se.

Steven B. Pollack, Attorney, Northbrook, IL, for Plaintiffs-Appellants.

Elizabeth A. Peterson, Attorney (argued), Department of Justice Environment & Natural Resources Division, Washington, DC, for Defendants-Appellees.

Before CUDAHY, MANION, and TINDER, Circuit Judges.

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 Ill., 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 wastewater 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...