Park v. Forest Serv. of U.S.

• Decision Date: 10 January 2000
• Docket Number: No. 99-3903,99-3903
• Parties: (8th Cir. 2000) TRACIE PARK, APPELLEE, v. FOREST SERVICE OF THE UNITED STATES OF AMERICA, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1034

205 F.3d 1034 (8th Cir. 2000)

TRACIE PARK, APPELLEE, v. FOREST SERVICE OF THE UNITED STATES OF AMERICA, APPELLANT.

No. 99-3903

United States Court of Appeals for the Eighth Circuit

Submitted: January 10, 2000

Filed: March 3, 2000

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted] Before Wollman, Chief Judge, and Morris Sheppard Arnold and Murphy, Circuit Judges.

Morris Sheppard Arnold, Circuit Judge.

Tracie Park is a member of a group known as the "Rainbow Family," which holds periodic gatherings of its members in various national forests. Ms. Park brought a suit for injunctive relief in the district court claiming that the United States Forest Service employed an unconstitutional checkpoint on a forest road, that the checkpoint was targeted against her group, and that the Forest Service would continue to use unlawful checkpoints against the Rainbow Family in the future. The district court granted summary judgment in favor of Ms. Park, and enjoined the Forest Service from using certain types of checkpoints that target Rainbow Family gatherings. The Forest Service appeals and we reverse.

I.

The Forest Service argues, among other things, that Ms. Park lacks standing to seek injunctive relief. "Standing is, of course, a threshold issue in every case before a federal court: If a plaintiff lacks standing, he or she cannot invoke its jurisdiction." Arkansas Right to Life State Political Action Committee vs. Butler, 146 F.3d 558, 560 (8th Cir. 1998), cert. denied, 119 S. Ct. 1041 (1999). Before moving to the merits of the case, we consider first, therefore, whether Ms. Park had standing to seek injunctive relief.

The existence of standing is a determination of law that we review de novo. See National Federation of the Blind v. Cross, 184 F.3d 973, 979 (8th Cir. 1999), cert. denied, 120 S. Ct. 533 (1999). "Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Under Fed. R. Civ. P. 56(c), summary judgment is proper only if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

To establish standing, Ms. Park must demonstrate that she has suffered an injury in fact, that her injury was caused by the conduct of the Forest Service, and that her injury is likely to be redressed by a favorable ruling from a federal court. See Lujan, 504 U.S. at 560-61. In the case of complaints for injunctive relief, the "injury in fact" element of standing requires a showing that the plaintiff faces a threat of ongoing or future harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-05, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). "[I]t is the plaintiff's burden to establish standing by demonstrating that, if unchecked by the litigation, the defendant's allegedly wrongful behavior will likely occur or continue, and that the 'threatened injury [is] "certainly impending." ' " Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 120 S. Ct. 693, 709 (2000), quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990), itself quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923), reaff'd, 263 U.S. 350 (1923).

In this case, Ms. Park maintained that she was subjected to an unconstitutional checkpoint while attending the 1996 annual gathering of the Rainbow Family, and she filed her complaint in the district court a few weeks after the conclusion of that gathering. The Forest Service does not deny that the checkpoint was impermissibly operated, but argues that Ms. Park has not made an adequate showing that she will be subjected to unconstitutional checkpoints in the future; the Forest Service therefore contends that Ms. Park does not have standing to seek injunctive relief. We agree.

The mere fact that the checkpoint used at the 1996 gathering was unconstitutional cannot alone give Ms. Park standing: "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). At the time that Ms. Park filed her complaint for relief, the 1996 gathering had ended and the checkpoint was no longer being used. We are therefore not presented with a case in which the unlawful conduct is ongoing; instead, to have standing, Ms. Park must demonstrate " ' "a real, [and] immediate threat that [she] would again" suffer similar injury in the future.' " Harmon v. City of Kansas City, 197 F.3d 321, 327 (8th Cir. 1999), quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995), itself quoting Lyons, 461 U.S. at 105.

In the discussion of standing in her appellate brief, Ms. Park argues that she has standing because she intends to continue attending Rainbow Family gatherings and because the Forest Service continues to target the Rainbow Family with unconstitutional checkpoints. The only evidence that she adduces for this latter assertion is an affidavit from another Rainbow Family member that claims that the Forest Service used checkpoints at Rainbow Family gatherings on certain occasions in 1997, 1998, and 1999.

We do not think, however, that the actual use of checkpoints in 1997, 1998, and 1999 is relevant on the issue of standing because all of these events occurred after Ms. Park filed her original complaint. We believe that it is Ms. Park's burden to show that, at the time she filed her suit in 1996, there was a real and immediate threat that she would again be subjected by the Forest Service to an unconstitutional checkpoint. We do not think that she may use evidence of what happened after the commencement of the suit to make this showing.

In Lujan, 504 U.S. at 568 (plurality opinion), the Supreme Court found that the plaintiffs lacked standing because, among other things, they could not demonstrate that their alleged injury was redressable. In so holding, id. at 568-69 (plurality opinion), a four-justice plurality rejected the argument that an authoritative ruling by the Court would have the ameliorative effect that the plaintiffs sought. The plurality stated that "standing is to be determined as of the commencement of the suit," id. at 571-72 n.5, and that at the commencement of the suit it could not have been foreseen that the suit would reach the Supreme Court, see id. at 571 n.5. It seems to us that if redressability may not be established by a development that occurs after the commencement of the litigation, neither may an injury-in-fact. See also Perry v. Village of Arlington Heights, 186 F.3d 826, 830 (7th Cir. 1999) ("[i]t is not enough for [the plaintiff] to attempt to satisfy the requirements of standing as the case progresses. The requirements of standing must be satisfied from the outset").

In its argument that Ms. Park lacked standing, the Forest Service also relied on events that took place after the commencement of this litigation. The Forest Service pointed to the 1998 adoption of new rules that supposedly eliminate the possibility that unconstitutional checkpoints will be used in the future, and argued that Ms. Park could not, therefore, have standing. For the reasons that we have already stated, however, the adoption of the 1998 rules is not relevant to the standing inquiry in this case. The adoption of these rules would be relevant only to a contention that Ms. Park's complaint has become moot. To carry the day on that contention, the Forest Service would have to "[bear] the formidable burden of showing that it is absolutely clear [that] the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, 120 S. Ct. at 709. In any event, since we decide this case on standing, we do not reach the question of mootness.

II.

Having found that allegations of improper checkpoints after the commencement of this suit are inapposite to the issue of standing, we turn to the record to see what other events, predating commencement of this suit, support Ms. Park's assertion of standing. Our analytical approach is similar to the one used by the Supreme Court in Lyons, 461 U.S. at 97-98, in which the plaintiff claimed to have been subjected to an unconstitutional chokehold during a traffic stop. The Court found that he did not have standing to seek injunctive relief because the possibility that he would be stopped again and, moreover, treated in a similar manner was simply too speculative. Id. at 105-07. The Court's measurement of the likelihood of future injury seemed to require two criteria: First, the probability that the plaintiff would be stopped again and, second, the probability that the officers would use a chokehold again.

It is undisputed that Ms. Park planned to attend, at the very least, the next annual gathering of the Rainbow People. We find the probability very high, therefore, that Ms. Park would, within one year of commencing this suit,...