Eighth Circuit Dismisses Arkansas Environmental Case for Lack of Standing
Last week, the United States Court of Appeals for the Eighth Circuit dismissed a case brought by the Ozark Society against the National Forest Service and other federal agencies that centered on natural gas exploration of the Fayetteville Shale in the Ozark National Forest. In 2005 when Fayetteville Shale development ramped up, the Forest Service predicted that 10 to 20 new gas wells would be drilled within the Ozark National Forest before 2016. Based on this estimate, the Forest Service prepared an environmental impact statement, took public comment, and developed its future management plans. Three years later, the Forest Service changed its prediction to estimate that over 1,700 wells would be drilled but concluded that the original environmental analysis did not need to be modified. The Ozark Society, a longstanding environmental and recreation group, filed suit in the Eastern District of Arkansas challenging the decision not to modify the original environmental impact statement and to enjoin further mineral leasing in the forest. The District Court found that the Ozark Society had standing to litigate its claims but granted summary judgment to the Forest Service and other agencies based on substantive law. The Ozark Society appealed.
The Eighth Circuit noted that before it could address the merits of summary judgment, it was duty-bound to scrutinize the plaintiff’s standing and found that the Ozark Society failed to meet the Article III standing requirements for associational standing. The Ozark Society had argued that its “membership utilizes the Ozark National Forest, roadless areas, wilderness areas, and wild and scenic rivers for hiking, boating, and other outdoor recreation activities. The Ozark Society regularly schedules outings in the Ozark National Forest. . . . The Ozark Society has a vested interest in the environmental health of the Ozark National Forest.” It alleged it would suffer harm because “the [Forest Service] engaged in a course of action which has caused, and will continue to cause, irreparable environmental harm in the Ozark National Forest.” Robert Cross, the Ozark Society President, also declared that he personally had led and participated in hikes in the Ozark National Forest and that the Ozark Society had held meetings there.
The Eighth Circuit explained that the Ozark Society’s claims had fallen between the Article III cracks of Summers v. Earth Island, 555 U.S. 488 (2009) and Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992). On one hand, the Court found that the complaint spoke for the Ozark Society as a whole and provided general conclusions about how the Forest Service’s actions harmed or will harm the Ozark Society as a group, not as particular members. The Court noted that plans “to enjoy the national forests… must belong to an identifiable group member, not merely to the group at large.” On the other hand, the Court found that although the statement by the Ozark Society President did identify one particular group member, he had not identified any future planned uses of the forest and thus had not established standing because Summers requires a “specific and concrete plan” to enjoy the Ozark National Forest before standing can exist. According to the Court, this was a critical distinction: “The Society… has alleged only that as a group it regularly uses the Ozark National Forest and that one identified member has used it in the past. This is short of the mark.”
While this ruling indicates an Eighth Circuit preference to heavily scrutinize associational standing, the decision is of particular interest in the wake of the last legislative session. Just two months ago, Arkansas lawmakers passed Act 822 (to be codified at Ark. Code Ann. § 4-28-105), which established associational standing under Arkansas state law. Arkansas law had previously been unclear as to whether nonprofit associations held standing to litigate claims on behalf of their members in state courts. While the Ozark Society opinion will likely limit some organizations’ ability to pursue claims in federal court, Act 822 appears to funnel the same organizations towards Arkansas state courts.