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Natural Resources Law
Wayne State University Law School
Routel, Colette

I. Standing
·         Jurisdiction: Getting through the door
·         Prior to Sierra Club v. Morton, P’s generally had to allege an economic of physical injury to get through the federal courthouse door. But this case recognized that an injury to “esthetic and environmental well-being” could constitute a legally cognizable injury in fact.
 
·         Constitutional Standing
o        Manuel Lujan Jr., SOI v. Defenders of Wildlife
·         Constituional minimum of standing contains 3 elements
1.      P must have suffered an “injury in fact”- an invasion of a legally protected interest with is concrete and particularized and actual or imminent, not conjectural or hypothetical
2.      Must be a casual connection between the injury and the conduct complained of- the injury has to be “fairly fraceable to the challenged action of the D and not the result of the independent action of some third party not before the court”
3.      Must be “likely” as opposed to merely “speculative” that the injury will be redressed by a favorable decision
·         Party invoking federal jurisdiction bears burden of establishing these elments.
·         In [this] decision, hailed by the right and attacked by the left as well as by a broad swath of legal scholars, the Court made clear that plaintiffs must suffer a concrete, discernible injury — not a “conjectural or hypothetical one” — to be able to bring suit in federal court. It, in effect, made it more difficult for plaintiffs to challenge the actions of a government agency when the actions don’t directly affect them. [1]  
·         Parties: Zone of Interests
o        Brad Bennett v. Michael Spear
·         Does a P complaining that their “recreational, aesthetic, and commercial interests” fall within the zone of interests intended to be protected by the ESA?
·         If not given standing by what is stated above, in order for standing, the P’s grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.
 
·         Timing
o        Generally must be the final agency action. Two conditions must be satisfied for agency action to be “final”
1.      Action must mark the “consummation” of the agency’s decisionmaking process, it must not be a marely tentative or interlocutory nature
2.      Action must be one by which “rights or obligations have been determined”, or from which legal consequences will flow. Pg. 163
 
o        Person must generally exhaust all administrative appeal procedures establishes before bringing an action in court
·         Sometimes a P can get around it. It will not foreclose review when administrative remedies are inaqequate, or pursuing them would be futile, or when the question is purely legal.
 
·         Timing- Ripeness and Mootness
o        Claims must not be too early (they must be ripe) and they must not been too late (they may not be moot).
 
 
o        Ohio Forestry v. Sierra Club
·         This case focuses on a NFMA plan that the Forest Service developed in southern Ohio. Sets a ceiling on the total amount of wood that can be good and how much can be logged, etc.
§         Although the plan sets logging goals, etc, it doesn’t authorize itself the cutting of any trees. Before FS can permit logging, must do a few things such as provide notice and see if to is pursuant to NEPA, etc.
·         Here, when the Forest Service first proposed its plan, P’s all objected and pursued various admin remedies.
·         SC now examines the ripeness requirement that is designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”.
§         In examing whether an agencies action is ripe for judifical review, the court has examined both the “fitness of the issues for judifical decision” and the harhship to the parties of withholding court consituation. So must consider
1.      Whether delayed review would cause hardship to the P’s
2.      Whether judicial intervention would inappropriately interfere with further admin action; and
3.      Whether the courts would benefit from further factual development of the issues presented
 
·         Citizens Suits
o        Most federal actions can be challenged in court using direct statutes such as the ESA, etc, there are often explicit citizen suit provisions that specify who, what , when and how challenges must be brought under those statutes.
o        Look to pg. 198 for specific statutory requirements
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
II. Admin Law- Judicial Review Standards
·         Judicial Review of Agency Action
o        S

he decision weakens BLM’s authority to protect the public’s lands, waters, cultural and religious sites, and other reserouces threatended by industrial mining operations in the west.
·         So P argues that this runs counter to BLM’s statutory duty, set forth in the Federal Land Policy and Management Act.
§         Challenges to agency rulemaking are reviewed under the APA.
§         Chevron provides the framework that governs judicial actions. In Chevron, the SC set out the two step test for reviewing an agency’s interpretation of a statute.
·         First, court must ask if Congress has directly sporken to the precise question at issue. If so, that is the end of the matter, as the court and agency must give effect to the umambiguously expressed intent of Congress.
·         If the statute is silent or ambiguous with respect to the specific issue, the reviewing court must defer to the agency’s construction of the statute, as long as it’s reasonable.
§         An agency that changes its course must supply a reasoned analysis.
§         The starting point of reviewing a statute is its language, for if the intent of the congress is clear than that is it.
§         Second rule is that when construing a statute, the court is obliged to give effect, if possible, to every word congress used.
§         Third, in statutory construction the word “or” is to be given its normal disjunctive meaning unless such a construction renders the provision in question repugnant to the other provisions of the statute.
 
·         Review of Agency Delays or Failure to Act
o        APA also authorizes challenges in limited circumstances where an agency has failed to take action. 706(1) states: the reviewing court shall: compel agency action unlawfully withheld or unreasonably delayed”. The SC has construed this narrowly.
o        Norton v. Southern Utah Wilderness Alliance
All claims here involve assertions that BLM failed to take action with