American Canoe Association, Incorporated Sierra Club v. City of Louisa Water & Sewer Commission Louisa Water Treatment Plant City of Louisa, Kentucky

District because the 336th Judicial County sat in only

District Court Fannin (it Grayson month sat in per

one week month,

County including rest of the day

on the that Hicks’s ex-wife filed her order). Thus, protective

application for protective order at issue more pretense validity.

than a If frivolous invalid, truly

Hicks believed that was he objected County to the Fannin

should subject-matter jurisdiction

Court’s

original hearing, court appealed the order jurisdiction,

for lack of sought or a writ of appellate

mandamus from local court possessing either firearms am- or before Cooke,

munition. See 65 S.W.3d at did

787-88. Because Hicks not take steps, plain

of these he mean- violated §

ing 922(g)(8) by possessing 18 U.S.C.

firearms and while ammunition he was

subject order, to a protective and his con-

viction stands.

IX. CONCLUSION reasons,

For foregoing we AFFIRM

Hicks’s conviction and sentence. ASSOCIATION,

AMERICAN CANOE

INCORPORATED; Club,

Plaintiffs-Appellants,

CITY OF LOUISA WATER & SEWER

COMMISSION; Louisa Water Treat- Plant; City Louisa,

ment Ken-

tucky, Defendants-Appellees.

No. 02-6018. Appeals,

United States Court of Circuit.

Sixth

Argued: Dec.

Decided and Filed: Nov. Adams, Terris,

ARGUED: Sarah A. Millian, D.C., Pravlik & Washington, for Adams, Jr., Appellants. Eldred E. Adams Adams, Louisa, Kentucky, Appellees. & for Terris, BRIEF: ON Bruce J. Demian Asa Schane, Terris, Millian, Pravlik & Wash- D.C., ington, Appellants. Eldred E. Adams, Jr., Adams, Louisa, Adams & Ken- tucky, for Appellees. KENNEDY, MARTIN,

Before: MOORE, Judges. Circuit MARTIN, J., opinion delivered the court, MOORE, J., joined. KENNEDY, 547-50), (pp. J. delivered a separate opinion concurring in part and dissenting in part.

OPINION MARTIN, JR., BOYCE F. Circuit Judge.

Pursuant provision citizen-suit Act, Clean § Water 33 U.S.C. American Canoe Association filed a complaint on both their own behalf their alleging members’ behalf defendants violated the terms of the National Pollutant Discharge Elimina- System permit City tion issued and, Louisa Water & Sewer Commission doing, so also violated the Act. The district complaint court dismissed the pursuant to 12(b)(1) Federal Rule of Civil Procedure for lack of For the reasons that May judgment agencies.” City of the ment Ailor follow, we REVERSE (6th nardville, Tenn., further 368 F.3d REMAND for court and district Cir.2004). opinion. Noncompliance with this a Nation consistent proceedings Discharge Sys

al Elimination Pollutant a violation of the tem constitutes I. Act, citizen-suit provisions such Statutory Background A. Earth, Inc. triggered. Friends of Inc., 1972, Congress enacted the Clean Laidlaw Envtl. Servs. objective of Act with the stated Water maintain[ing] chemi

“restor[ing] and

cal, biological integrity and of physical, Background 1251(a). B. Factual § In U.S.C. Nation’s waters.” 33 goal, achieve laudable “the order 21, 2001, and May American Canoe On discharge any pollu of ‘the prohibits Act Club, national, which are not-for- Sierra compli unless done in by person’ tant profit organizations pro- dedicated to of Act.” S. provision with some ance environment, com- of the filed a tection Mgmt. Dist. Miccosukee Fla. Water & plaint against City of Louisa Water 95, -, Tribe, and the Louisa Water Sewer Commission (2004) (quoting alleging violations of the Treatment Plant 1311(a)). Thus, the author § Act U.S.C. August plain- Act. On Clean Water Dis the issuance of National Pollutant izes complaint amended to add the tiffs their System permits charge Elimination —com opin- Louisa a defendant. This City of permits”— referred as “NPDES monly collectively refer to entities ion will type quanti “place which limits on the and expla- unless further as the “defendants” can into ty pollutants be released al- necessary. complaint nation is Additionally, the Nation’s waters.” comply leged that the defendants failed to both permit-holders generally required are with the terms of the National Pollutant and to discharges to monitor their effluent is- Discharge System permit Elimination U.S.C. report these results. En- Kentucky Department for sued 1318(a) (noting monitoring § and re City to the of Lou- vironmental Protection may imposed porting requirements be Commission, & Sewer isa Water necessary objectives fulfill the when discharge specified lev- authorized Act). monitoring reporting If the Levisa Fork of el of effluents into quirements imposed, requires the Act monitoring Sandy imposed River and Big the information collected be available reporting requirements. ex public unless disclosure would on of its American Canoe sued behalf 1318(b). § pose a trade secret. 33 U.S.C. “health, that their eco- alleging members recreational, nomic, environ- aesthetic and “Congress help enlisted the adversely interests” are affected goal by au mental public attaining [the Act’s] discharge, monitoring, and bring against the defendants’ thorizing suits citizens Additionally, Ameri- violations. reporting who the Act.” Pub. Interest those violated alleging sued on its own behalf Group Jersey, Mag Inc. v. can Canoe Res. New Elektron, Inc., monitoring and re- 114 that the defendants’ 123 F.3d nesium (3d Cir.1997). adversely or- affected its merely porting violations suits are “Citizen of its ganizational support interests. supplement, supplant, en intended provided American Canoe govern allegations, state and federal forcement Jenkins, Director of David affidavit Policy Public Ameri-

Conservation and Canoe,

can which stated that American and its members’ interests were Canoe Representational Standing A. monitoring the defendants’ harmed argues Plaintiff Sierra Club reporting violations. standing representative it has sue as allegations, Sierra Club made similar its Although of members. American Ca but substantiated them with the affidavit originally noe on sued its own behalf and Kash, of Daniel Hurst resident Ash- its representational capacity, does not land, Kentucky member of Sierra Club argue appeal that it has to sue he since Kash in its representational capacity. Big Sandy recreated River near Club has to sue on behalf past would to do Louisa like so members when “its members would other future, maintained that he but re- wise have to sue in their own currently there fuses to recreate right, the germane interests stake are pollution. The Sierra also the organization’s purpose,’ and neither Boldman, provided of the affidavit Lane E. claim requested asserted nor the relief Chapter, Chair its Cumberland stat- requires participation of individual ing interests Sierra Club were Laidlaw, members the lawsuit.” 528 adversely affected the defendants’ mon- at 120 S.Ct. 693. A member of itoring and violations. reporting standing Sierra would have to sue The defendants filed motion to dismiss own right his when he has suffered a arguing plaintiffs lacked concrete particularized injury in fact granted The district court the motion on fairly that is traceable to the defendant’s 11, 2002, holding that plaintiffs June actions and a favorable would decision standing lacked none of mem- because Ailor, injury. dress his 368 F.3d at 596. to bers had sue in their own district The court concluded Thereafter, right. plaintiffs filed a Club did not to sue in its pursuant motion for reconsideration representational capacity it because could 59(e), Federal Rule of Procedure Civil not establish that of its members July which the district court denied on 25. would have to sue in their own timely appeal This followed. right. disagree. We provided

II. Sierra Club the affidavit member, Kash, support of a Daniel of its This Court reviews a district standing to sue as the representative of its complaint court’s lack dismissal of a members for the defendants’ violations of standing as it reviews other dismissals Act. Kash’s affidavit contained the fol pursuant Rule of Federal Civil Proce lowing pertinent averments: 12(b): dure de City novo. Jones v. ¶ Lakeland, (6th Tenn., years F.3d 3. For many I traveled Lou- Cir.2000). Thus, isa, accept this Court must Kentucky, as the Big borders allegations true all Sandy River, material contained in part of my duties as complaint liberally supervisor, Kentucky construe them of Air Division party. favor Kar complaining Quality, Kentucky. State of I made this Columbus, City trip dules v. per many F.3d once week. On of these (6th Seldin, Cir.1996); Warth v. thought myself occasions I what a pollution they discharge accordance Big Sandy it was that the shame terrible permits, this information will I could with their not polluted was so River .... it, As not be available it, or swim in it. canoe fish emotionally up- was avid fisherman Injury 1. Aesthetic/Recreational setting me. court that Kash The district concluded ¶ of these beginning Almost from the 4. generalized grievance alleged only Water I that the Louisa trips, was aware actual, and not an individualized violating Plant was water Treatment found that Kash was apparently river ap- .... The pollution standards person “for the aesthetic and not whom oily and smelled peared be dark values of the area will be recreational products .... petroleum like challenged activity.” lessened ¶ ago, canoeing years About 10 I went Laidlaw, 183, 120 528 U.S. at Sandy River near Louisa. Big (internal omitted). quotation marks We However, pollution water and odor conclude otherwise. emanating the River detracted from reason, and, my for this enjoyment from Laidlaw, plaintiffs Friends on the attempted I have recreate Earth Local Environmental and Citizens then. River since Network, brought complaint Action Services, ¶ against Laidlaw Environmental currently canoe in I will not fish or Inc., had violated its alleging Laidlaw I Big Sandy River near Louisa. do Elimination Discharge National Pollutant River miles fish the Ohio about injunctive and System seeking the confluence downstream from monetary relief for the violation. Sandy River. If Big River the Ohio 175-76, 120 S.Ct. 693. The Court found Big Sandy River near Louisa were the by is, supplied plain that affidavits the I the polluted currently as it would not as injury in tiffs’ members had established my opinion, and in it. canoe fish 183-84, fact. 120 693. In this Id. at S.Ct. Big on the being able to canoe and fish case, virtually indis Kash’s averments are Sandy great is a me and River loss that tinguishable from those the Court in every Kentucky. other citizen in found sufficient to establish ¶ plaintiffs for has informed 8. Counsel fact in Laidlaw. Plant me that the Louisa Waste Water limits, permit discharge violating is Laidlaw, up- For in the Court example, including suspended total solids and Earth held of Friends grease. very I am concerned oil and member, that Sharp, who averred Norman impacts pol- that this about harmful approximately he 40 miles down- “canoed lution will continue have on water facility would stream of the Laidlaw and waters, including its fish quality Tyger in the River like canoe North plant and life. discharge point, closer Laidlaw’s but did ¶ in not do concerned obtaining I am correct so because he was 9. interested pollutants.” pollu- the water contained harmful information about amount 183, Similarly, Kash Sandy 120 S.Ct. 693. Big in the River near Louisa tion averred that he twelve miles down- I can make decisions about fished so stream, Sandy fish, Big on the paddle, and but would canoe it is safe whether polluted. River not been More- waterway. If the Louisa had it so recreate in this Ashland, over, although Kash Ken- and other dis- lives Treatment Plant Water Louisa, Kentucky, tucky, not in such report monitor and chargers do not 542 Co., L. dispositive Singer under Laidlaw be- Sons v. R.

fact is not & Union Pac. 295, has demonstrated an 303, 254, cause Kash interest 311 U.S. 61 S.Ct. 85 L.Ed. canoeing fishing (1940). affected Kash attested that the lack of 182, (noting id. at area. See deprived ability information him the Linda Moore lived twenty affiant make choices about whether was “safe to the area in but that question, miles from fish, paddle, and recreate this water- area). she like to use the affected would way.” allegations These are sufficient to Kash that he had recreated in the averred establish that Kash has suffered a concrete past affected area he would particularized injury sufficient to con- currently, were it recreate there not for fer standing.1 Article III by caused pollution defendants’ discharge effluents in excess of the limi- Redressability & Causation imposed tations the National Pollutant Sierra Club has also demonstrat System Discharge permit. Elimination ed that fact suffered Kash Under the Court’s current environmental “fairly ... traceable to allegedly doctrine, Kash’s averments ade- unlawful conduct [of the defendants] quately alleged that an injury he suffered likely to requested be redressed his fact to aesthetic and recreational 737, relief.” v. Wright, 751, Allen 468 U.S. (“We 183, id. at values. See S.Ct. 693 104 S.Ct. plaintiffs held environmental ad- requirement The causation of the constitu allege in fact equately they when tional doctrine exists eliminate aver that use the affected area and those in which party cases a third and not persons ‘for whom the aesthetic and a party injury. before court causes the recreational values of the area will be less- Lujan Wildlife, 504 challenged activity.”) ened’ (citing Defenders of Morton, (1992) (“[T]he (1972)). ‘fairly has to be L.Ed.2d 636 ... challenged trace[able] action of Injury Informational defendant, and not ... th[e] result [of] the independent action of party some third alsoWe conclude that Sierra Club ”) not before the court.’ standing (quoting has to sue Simon v. for its members’ infor E. injuries. Ky. Rights Org., 26, mational 426 The averments of its Welfare 41-42, member, Kash, 1917, that 96 establish the lack of 48 450 (1976)). injury beyond information caused an argue the that defendants “common concern for obedience to law.” Sierra has sufficiently not alleged Notably, appears disagree- there be some possible plaintiff to at least that some in the Appeals ment between the Circuit Courts of might allege specific future a and concrete plaintiff alleging a whether a violation of injury arising from a defendant’s failure to standing the Clean Water Act has sue for a report discharges, monitor and its effluent we monitoring reporting defendant’s viola- adopt will bright not the Fifth Circuit’s line standing tions absent for a to sue defendant's rule.”) (footnote omitted). See also Sierra discharge Compare violations. Friends Indus., Inc., 1109, Club v. 847 Simkins F.2d Earth, Inc. Crown Corp., Central Petroleum (4th Cir.1988). However, given our 358, (5th Cir.1996) (“Because 95 F.3d Club, repre- conclusion that the as the FOE's do members not have to sue members, sentative itsof has to sue violations, discharge La Gloria's do violations, discharge for defendants' we find not reporting have for the sue analyze no argu- reason to the merits of this violations.”) Elektron, Inc., Magnesium ment. (“Because 123 F.3d at 124 we think that it is lack absolutely no fendants’ motion dismiss for “[t]here causation because Run Ass’n any- Piney Pres. connection evidence of between County County, Comm’rs Carroll Plant the Louisa -Water thing going (4th Cir.2001) (“Tracea- F.3d 263-64 things the river various bility plaintiffs does not mean that argument must to Mr. Kash.” This troubling so certainty to a show scientific defen- lacks merit. ... precise dant’s effluent caused the alleged ongoing has vio- Sierra Club Rather, plaintiffs. harm suffered Act that the lation the Clean Water plaintiff merely must show that a defen- the terms repeatedly violated' defendants pollutant discharges dant that causes or Discharge Elimi- the National Pollutant kindp of injuries contributes to al- permit City issued to System nation (internal quotation leged.”) marks cita- & Louisa Water Sewer Commission omitted). tions fail- exceeding the effluent limitations and dis- ing report argue to monitor and the effluent The defendants also that a not charges. Notably, defendants favorable decision in this case will and, allegations plaintiffs injuries challenged given these dress case, judgment time the is remanded for a procedural posture this we case merits, City completed on the will have accept allegations must as true. As project will eliminate the injury, informational because the renovation to Kash’s pollution discharge problems. Relatedly, information, it is the lack of itself City argues pro renovation necessarily that the defendants’ ac- follows ject also makes controversy this entire failing monitoring tions follow Again, unpersuaded. we are moot. obligations, deprived Kash reporting information, “fairly or is “caused” As the Court reiterated Laid alleged injury. traceable” law, voluntary the alleg cessation of As to Kash’s aesthetic and recreational generally unlawful edly behavior is insuf injury, similarly that the al- determining we conclude ficient moot case fairly de- leged injury is traceable of that behavior. U.S. at legality (citing City fendants’ actions. Kash’s affidavit noted Mes Castle, Inc., 455 Big Sandy appeared quite that the River “dark v. Aladdin’s oily petroleum prod- like L.Ed.2d 152 and smelled (1982)). Indeed, “determining that it odor. whether a unpleasant ucts” and has the defendants case been mooted defen Sierra Club voluntary stringent: contained conduct is ‘A exceeded the effluent limitations dant’s might subsequent moot if discharge in the on numerous occa- become case absolutely it presented evidence that these events made clear sions and discharges wrongful of not specific types allegedly effluent could behavior could reasonably similar to complained expected to that be recur.’” Id. cause conditions (affidavit v. (quoting See J.A. 157 of Dr. States Concentrated Kash. United Ass’n, 199, grease Export and attesting Phosphate Bruce A. Bell that oil 393 U.S. 203, 361, 21 discharges could 89 L.Ed.2d 344 cause discoloration odor). (1968)). case, From the record in this unpleasant the water and Under circumstances, cannot conclude that the defendants we conclude Si- we Furthermore, sufficiently alleged showing. has that the have made this erra Club made project to if renovation fairly is caused or traceable even reasonably likely discharge vio the defendants’ actions survive the de- 544 recur, hypothetical 1777, this

lations would 118 S.Ct. 141 (1998), L.Ed.2d 10 nothing about situation tells the likeli where Supreme Court found a cogniza- the defendants’ hood that violations of ble informational under the Federal monitoring reporting or require Act, Election Campaign and Public Citizen discharge permit ments of the would re Department Justice, United States cur. 440, 2558, 491 U.S. 109 S.Ct. 105 L.Ed.2d (1989), cogni- where the Court found a Organizational Standing B. zable informational under the Fed- eral Advisory Committee Act. Under the American and Sierra Canoe Club also case, circumstances of agree this we allege have to sue on American Canoe and Sierra Club have their own for the behalf defendants’ moni- comparable demonstrated a informational toring reporting violations. The dis- injury under the Clean Water Act. opinion directly trict court’s does not ad- argument. dress this It is black-letter law that standing Unquestionably, an association requirements come in first, two flavors: may noted, have to assert an injury to the irreducible Article III minimum regardless itself fact, whether its of an injury members fairly traceable to the Warth, also have defendants, conduct of the and redressible 511, Supreme 2197. As the judicial decision; favorable and sec question ond, has held: “There is no prudential that an requirements-i.e., self-im may (or, association have posed its own perhaps more accurately in this right judicial court, to seek relief from Supreme Court-imposed) limits on itself and to vindicate rights judicial See, whatever the federal power. e.g., Elk may immunities the association itself en Grove Newdow, Sch. Dist. v. Unified — case, joy.” U.S. -, -, American Canoe 2301, 2308, 124 S.Ct. Sierra Club have that the de prohibition L.Ed.2d 98 on a monitoring reporting plaintiff fendants’ viola seeking redress for a “generalized tions affected its efforts to grievance” “research the has often been numbered compliance Kentucky status of dischargers among 2309; the latter. See id. at Devlin ... and report Scardelletti, the results of that 1, 7, 536 U.S. 122 S.Ct. members; search propose 2005, legis [its] (2002); 153 L.Ed.2d 27 Allen v. ...; lation bring litigation and to pre Wright, 737, 751, 3315, 468 U.S. 104 S.Ct. vent discharge violation (1984); limitations 82 L.Ed.2d 556 Sec’y Md. v. thereby protect Co., Joseph wa H. 947, Munson 467 U.S. ters facility’s 5, affected discharge.” n. (1984); 104 S.Ct. Thus, American Canoe and Valley Forge Sierra Club Christian Coll. v. Ams. Unit base their claim of standing purely on a Separation State, ed Church & theory injury.” of “informational They ar 102 S.Ct. 70 L.Ed.2d gue that if (1982); Gladstone, a statute has a reporting re Realtors v. Village quirement reports obligated Bellwood, and those public they (1979) be made suffered J., L.Ed.2d 66 (Rehnquist, injury in fact for Article III purposes, Warth, if dissenting); 499, 422 U.S. at 95 they are denied this 2197; information the S.Ct. Duke Power Co. v. Carolina defendants’ failure to report Inc., the first Envtl. Study Group, 438 U.S. instance. American Canoe and 2620, 98 (1978); S.Ct. Akins, Club rely 11, on FEC v. 524 Richardson, United States v. 166, 2940, widely deprive is shared does not Con- n. S.Ct. 196 & also J., See (1974) (Powell, concurring). gress power of constitutional to authorize courts.”). WRIGHT, ALAN ARTHUR vindication in the federal CHARLES COOPER, H. & MILLER, EDWARD at odds the R. This seems to be some & PROCE PRACTICE 13 FEDERAL re- previous Court’s indication “those ed.1984). (2d It is § at 347 DURE questing information under Freedom [the that the odd therefore somewhat of Information need show more Act] [not] sa- Akins noted “respondents first sought than that and were denied require ‘prudential’ tisf[ied] agency records” to demonstrate specific had Congress granted ments” because standing, holding as its that an well could standing to all citizens who demon wishes to force organization compli- III at 19- injury, an Article strate Advisory the ance with Federal Committee to but then went on a Act can demonstrate sufficient Article “strongest argument” of the the discuss injury through agency’s III a federal fail- Commission, that Federal Election permit [plaintiffs] “to to scrutinize [an ure in Akins only ‘gener a “involve[d] lawsuit Advisory activities to alleged Committee’s] ” ” Akins Id. grievance.’ at 23-25. alized Pub. Citi- allows .... the extent FACA reason, however, “gen to that the went on zen, Thus, 449, 109 2558. 491 U.S. at S.Ct. grievance at is quality eralized” necessary is to stand- all that demonstrate Federal Election sue—that Commis Freedom of Information Act ing under the classify particular to a sion failed Advisory Committee Act Federal committee, political triggering as a group request for information has is that been ir requirements certain disclosure —was It see how rebuffed. is difficult to those as the “con long grievance relevant so was Akins distinguished from cases can be injury The concreteness of crete.” Akins into the such that we should read withholding of information Akins —the that to holding requirement a firm estab- voting to contrasted to the lating —was standing, plaintiff adequately, must lish ” “ and indefinite nature’ ‘abstract withholding more than the of the allege to for obedi “harm the ‘common concern citizenry. required information from ” at to ence law.’ circumstances, it general because grievance Where the is it be Under only the represents very distinguish common interest difficult comes obeyed, Congress cannot seeing the law Although those present case from cases. injury is create a situation in which no this case involves concrete; injury some actual befalls where denied the information agency previously community, every Congress member remains plaintiffs, desired uni standing regardless of the can create previous question same. The 20-25, id. See versality injury. of that at may princi be relevant agency denial exhaustion, ples as for but Canoe and Sierra Club alleged, American Akins seems require But some addi- certain information that defen desire make in- “plus” tional an informational legal obligation under a allegedly dants are jury cognizable in the federal courts. (“We precisely This is provide. 24-25, S.Ct. 1777 conclude id. Public Citizen in the Free ... at issue the informational might Act This Information cases.

here, dom of voting, related to the most directly in the sense “generalized grievance” political rights, sufficiently con- be basic it, request point they up such that the fact that specific crete and plaintiffs have interest in informa zen they and Akins than not. In are by every other but it person, tion shared is determining whether an in- informational grievance an abstract in the sense concrete, jury sufficiently is the universe injury alleged in Akins: condemned is of interests that will “plus” create a is merely the defendants failing not that are larger than those that support would law, it are obey they disobey to is that (as on their by own evidenced failing provide the law in informa ing Akins’s reliance on voting, which is an plaintiffs allegedly that the and tion desire by every interest shared in citizen Amer- is all that plaintiffs This should need. ica). allege have to to demonstrate information sum, In we hold that American Canoe provided Congress al where has and Club have sufficiently alleged right broad of action to that in vindicate in fact. Although organi- these Sunstein, right. formational R. See Cass zations devote protection themselves to the Regulation and Informational Informa environment, preservation and their Standing: Beyond, tional Akins and claims are not based upon purely ideo- (“All PA. L. U. REV. 643 n. 154 Morton, logical or societal interest. Cf. deprivation is is that after clear Akins Rather, at U.S. 92 S.Ct. 1361. information consists of an in fact if their upon claims rest their organizational so.”).2 Congress has said negatively interests are by affected requires To the extent that Akins some the defendants’ failure to fulfill its moni- “plus” plain- additional reason —some toring and reporting obligations. Without information, need the tiffs in addition to a information, noted, this American Ca- Congressionally-bestowed right sue to noe’s and Sierra daily operations Club’s it—that is acquire requirement liberally stymied are the extent that can no construed, easily and we it is believe met longer honor their monitoring own Indeed, in plus this case. found in reporting obligations to their members. and that majority Akins found Moreover, their ability legisla- to propose Public Citizen are each themselves ex- tion to bring litigation upon based traordinarily general; difficult is information collected the defendants is imagine what information would not make clearly hampered. These activities are es- voter, a citizen better-informed or would sential their daily organizational activi- ability not affect her participate some ties to fulfilling their institutional Akins, workings government. goals, satisfy and are sufficient to Akins. Citizen, 1777; at 118 S.Ct. Pub. Although defendant’s failure fulfill this its monitoring and reporting violations case, it organiza- is difficult to see how surely injures American and Sier- Canoe’s legislation” tions’ interest in “proposing ra Club’s societal seeing interest concrete particularized “par- less than faithfully the environmental laws judicial are exe- ticipating pro- nomination cuted, cess,” nullify which was the does not fact interest involved alleged prevent Public Citizen. The these violations also organi- interests American Canoe and Sierra performing daily opera- more zations from their like those interests in Public Citi- tions. As the Supreme found in Congress enacting preme Water Act Clean Court’s] Coun decision[s].” Middlesex provisions upon Ass'n, its citizen-suit ty Sewerage relied Auth. v. Nat'l Sea Clammers this case "intended ... to allow suits all 69 L.Ed.2d persons possessing standing under Su [the Coleman, portion from the therefore dissent Realty Corp. Havens majority’s grants the Ameri- opinion that L.Ed.2d 214 Canoe”) (“American can Canoe Association (1982), concrete an demonstrable “[s]uch standing.” Additionally, “informational the activities-with injury organization’s hold the Sierra Club has we consequent organization’s on the the drain standing, I see no representational need simply far than more resources-constitutes pass question on the of whether it has abstract organization’s to the setback ” standing. informational Sunstein, .... interest See also social clearly (“[Standing at 654. supra, of majority’s A. The elimination Article or institu- “an individual available” where in “injury requirement. Ill’s fact” obtaining information tion is interested injury, Any of informational type even of act of Con- relating [an enforcement injury, must meet the Article III re- still organization gress], and that individual or quirements standing: [subject in the a demonstrable interest has act].”). in- purpose requires party Article III who matter authority to vokes the court’s show Canoe Sierra Club also American he actual personally has suffered some requirements of constitu- meet other injury or as a result of the threatened analysis regard with tional putatively illegal conduct of the defen- redressability require- causation and to the dant, injury fairly and that can be establishing for constitutional ments challenged traced to the action and is standing of Club to on behalf of sue likely in a to be redressed favorable applies equal force here its member decision. it unnecessary that it is to address such al., et Lujan Wildlife, Defenders of further. 555, 563, 112 particular, informational III. cases, injury ex D.C. Circuit has reasons, RE- foregoing For we inju pressed skepticism that informational judgment the district court VERSE III ry alone can meet the Article proceedings for and REMAND further requirement: fact opinion.3 with this consistent an organiza- have never sustained [W]e in a solely tion’s NEPA case on KENNEDY, Judge, concurring Circuit injury,” of “informational basis dissenting part. part, is, organizations’ interest damage disseminating data majority I with the that the Sier- the environmental agree expected could be representational impact has be- statement ra Club recognize logical inju- one of members suffered contain. We cause However, so three majority’s appeal doing in terms ry. I believe that the if standing requirements: constitutional discussion associational based lack of is the informa- impermissibly on informational ex- fact impact tion the environmental Supreme jurisprudence Court’s about pands action, subject. agency I that it follows that the also believe rais- by the failure to de- policy agency’s concerns. I is caused significant public es pursuant Rule Civil holding, we address tion filed to Federal 3. Given our need not 59(e). plaintiffs' argument district court Procedure denying erred in its motion reconsidera- in velop impact litigation, such information such it is to perceive difficult why and can be redressed or- any statement individual citizen with the same dering agency prepare the one. Such fide special bona interest would not also however, approach, raises “com- a broad be entitled to do so. and considerations.” It plex difficult Morton, Club Sierra 405 U.S. potentially any standing eliminate

would (1972) (su- 92 S.Ct. 31 L.Ed.2d 636 cases, in NEPA when requirement save perseded by grounds). on statute other organization enough was foolish Court in Morton the Supreme Both allege that it wanted the information for Lyng D.C. in a the Circuit concern raise nothing with having to do the reasons majority the truly never addresses: proposition The that an environment. can a grants standing how court that to an supply environ- organization’s desire premises injury association that on lack members, information to its mental problem of information aon in which it has consequent “injury” it when suffers special a entirely interest avoid eliminating forthcoming information not in an is III requirements Article for oth- statement, impact establishes organizations er and citizens? without more also encounters the obsta- of Sierra Club v. Morton. cle The majority avoids this concern Trends, Foundation on Economic et al. v. lying Supreme two from decisions al., (D.C.Cir. et Lyng, 943 F.2d 84-5 Akins, Court: FEC (citations 1991) omitted, original). italics in (1998) 1777, 141 L.Ed.2d and Pub deny standing D.C. Circuit on to The went Justice, lic Citizen v. Dept. U.S. plaintiffs in their NEPA action. Morton, Club v. Sierra Supreme clear, majority’s To be novel allowing expressed concerns about infor read Akins and Public Citizen makes injuries satisfy injury in mational Sixth only Circuit the in Circuit requirement standing: fact country to broadly. read these two so cases problem,” a in a But mere “interest no majority interprets The these cases as cre how longstanding matter the interest ating permissive standard that lower qualified organi- no and matter how in courts must deciding use when citizens evaluating is in problem, zation organizations right to infor itself not sufficient to render the mation. Akins and Public Citi Reading “adversely organization “ag- or affected” zen in such a manner in reads them iso grieved” meaning within the the APA. important lation from other cases on the Sierra is a large long- Club Lujan subject standing, particularly organization, established with a historic Morton. Akins and Public reading In so commitment to the cause of protecting Citizen majority goes beyond well heritage our Nation’s natural from holdings limited the Supreme Court in depredations. “special man’s But if a tended. subject in enough interest” were Lujan injury limited in fact finding entitle the Club to commence this members, although that Sierra litigation, appear there would to be no objective special interest upon basis which to disallow a the habitats of countries, by any suit bona in- animals other “special other fide did have an organization, any terest” however or fact small related to any special indefinite, if group short-lived. And with a was interest too or “special alternately, bona fide interest” satisfy could initiate too remote Lu any other Article III. from the interest of environmen- requirement fact organization or 563-68, tally concerned citizen jan, Citizen, country? stop What would other contrast, and Public Akins a passing inter- organization national on a lack of based specific found pros- from rivers or the environment est However, cases in those information. ecuting majority’s claim under the hold- granted specifically statutes volved majority that the ing? Is not interest right groups individuals and boiled down its uphold, seeks to when Akins, See sought. information form, simply up- most basic concern (“The 20-25, injury at U.S. S.Ct. law, goal a holding the rule of and desire fail complain-their respondents responsible every every that citizen injury information-is ure to obtain relevant organization shares? Common Cause v. address.”). of a kind that FECA seeks Commission, Election Federal 108 F.3d Citizen, 445- also Public at (“To (C.A.D.C.1997) hold that a (“FACA 46, 449-50, was merely can establish in fact plaintiff public .the remain [that].. born a desire deprived has been alleging he [advisory committees] exis apprised of a violation knowledge as to whether cost”). tence, activities, and has occurred would be tantamount law case, although In the defendant in justiciable a interest recognizing compliance information must file law.”). Lujan enforcement filings public those state against Morton clearly such a counsel statute, no- under the the statute records I cannot read grant broad right the infor- grants specific a where Akins and Public Citizen demanding it. Campaign mation. The Federal Elections majority opinion does not Although in Akins Act at the Federal issue my position, I point, raise this because Public Citizen in Advisory Act Committee compelled that I am to address the believe provide specifically both drafted were Realty Havens holding in Supreme Court’s the work- to the about public information Coleman, 363, 102 Corp. The Water ings government. Clean case, Act, contrast, public it although requires Housing Court found that Supreme pro- compliance of the permit disclosure (HOME), Equal Opportunities Made cess, pro- on environmental focuses instead had assoeia- public organization, interest tection, rights to creating on broad Housing the Fair tional under Thus, and im- significant information. it were ra challenge Act to what claimed between in- portant difference exists cially discriminatory housing practices rights recognized in Akins formation Supreme an area it served. Public rights Citizen and the information it because felt granted HOME developed here. suffered sufficient HOME and Public Citizen do Given that Akins organization’s the form of a “drain on case, I in this fail not control the outcome “had to devote resources” because HOME majority identify can extricate itself and coun significant to see how the resources to holding racially discriminatory that its effec- from the conclusion teract defendants’ Realty Corp., Havens requirements tively practices.” vitiates steering 379, 102 1114. The Court American Canoe is 455 cases such as these. type in environ- found that this satisfied organization with an interest laid out Morton it: However, how does concerns protection. mental simply far than set sufficiently “constitutes more interest differentiate social organization’s back to the abstract American Canoe could sufficiently re Although al interests.” the interests compliance search defendants’ status to re are similar leged Haven to the interests on port discharge violations to mem Canoe, alleged by key American differ Additionally, although bers. there were sig ences remain that HOME encountered violations, 12 reporting the defendants helping plain nificant difficulty individual likely enough had more than information tiffs counteract discrimination directed at judgments to make future legislation, them a localized area. HOME also and, if organization any or of its mem incurred costs as a result of additional directly were injured by pollution bers steering practices. these racial In this (similar in some concrete fashion case, national although American Canoe’s direct can Sierra Club and did goals may impeded, they are no more be claim), the organization easily could use impeded group than other or individu the 405 provide violations to the basis for a general al that “special has a interest” lawsuit. Thus, protection. environmental HOME’S specific, cognizable, more C. Conclusion particular the injury than suffered I Because do not believe that the American Canoe. particular is sufficiently satisfy in fact requirement absent rais- B. Injury at all? ing public the same policy concerns raised objections Finally, prem the above Morton, I question wheth- permit ised on assumption er American Canoe suffered a concrete par violations constitute “concrete injury, I respectfully por- dissent from the injury-in-fact ticularized” to American Ca tion of the majority’s opinion related Tenn., City Maynardville, noe. Ailor v. informational standing. (6th Cir.2004). ques I F.3d tion in question whether the conduct actu

ally constitutes an to American Ca

noe According majority, at all.

American claims that they Canoe will not

be compliance able to: “research the sta

tus Kentucky dischargers... and to re MOUSSA, Bassam Elias Petitioner- port of that results research its Appellant, members; legislation...; propose bring litigation prevent violation of JENIFER, Director, Carol District limitations in discharge Immigration and Naturalization thereby protect the waters affected Service, Respondent-Appellee. effect, facility’s discharge.” American holds, Canoe argues, majority and the No. 03-2292. injury they informational suffer stems United Appeals, States Court of

from comply the defendants’ failure to Sixth Circuit. However, permit. the amended complaint identifies 405 instances Argued: Sept. discharge defendants exceeded the limita Decided and Nov. Filed: tions permit, monitoring of its viola tions, and only reporting violations. As result, reasonably seems clear that

Case Details

Case Name: American Canoe Association, Incorporated Sierra Club v. City of Louisa Water & Sewer Commission Louisa Water Treatment Plant City of Louisa, Kentucky

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 1, 2004

Citation: 389 F.3d 536

Docket Number: 02-6018

Court Abbreviation: 6th Cir.