Standing and breathing


Last week, the Maine SJC rejected an Rule 80B case on standing grounds that triggers some general musing in that area.  Nergaard v. Town of Westport Island, 2009 ME 56

The plaintiffs wanted to complain about decisions made to improve the town's public launch site.  They were not abutters, nor was their property "in close proximity to" the site.  Nor, apparently, did they actually use the launch.  The planning board found standing because the plaintiffs frequently traveled the road on which the launching site was located.  The Zoning Board disagreed with the Planning Board, finding no standing because the plaintiff's traffic impact injury was no different from anyone else's travelling that road, Route 144.  The Superior Court, then the SJC, agreed. 

On one hand, this is a rather pedestrian conclusion, consistent with the long line of Rule 80B cases discussing when a neighbor has standing to challenge a permit.  While every case is fact specific, the general rule is you need to be close enough so that something about the use of that property near you inflicts a potential injury different from that suffered by the general populace.  The Nergaard decision falls neatly in that category.  Ho hum, right?

Except that this is a public launch.  So does this mean that we should start looking at all the caselaw about citizen rights to complain about use or effects on public property – the old do trees have standing line of cases?  (E.g. Sierra Club v. Morton, 405 U.S. 727, 734 (1972); U.S. v. SCRAP, 412 U.S. 669, 689 (1973); Lujan v. National Wildlife Foundation, 497 U.S. 871 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Massachusetts v. EPA, 549 U.S. 497 (2007).) 

Justice Alexander, concurring, seemed to think so, stating that this decision puts Fitzgerald v. Baxter State Park Authority, 385 A.2d 189 (Me. 1978) on the scrap heap.  That's a case that applies Sierra Club v. Morton to conclude that people who use Baxter Park had standing to complain about a rule relating to that use.  The majority in Nergaard distinguished Fitzgerald on the ground that the plaintiffs there were "actual users" of the Park, while the plaintiffs in Nergaard weren't.  Justice Alexander found this of no moment because a gazillion people use Baxter Park while fewer use Rt. 144, so if the test is segregating the plaintiff's interest from the general public's, in terms of sheer numbers, the Nergaard plaintiffs fell within a far more select group.  

Now if you go down the Sierra Club and progeny case law line, actual use does make a difference, and there's lots of language about how it doesn't matter if a gazillion other people are similarly situated – particularized interest doesn't mean there can't be lots of others also so affected.  But the more interesting part of the discussion in the decision to me is its fusion of standing law, whether  private or public interests are involved – neither the majority nor the concurrence suggested that the test was any different.

To me, this relates to the "zone of interests" test for standing.  The plaintiffs in Nergaard's interest as they articulated it was exactly the same whether the property at issue was public or private – the old "it's going to increase traffic" objection to development.  So it makes sense to apply the longstanding private property test – your property needs to be close enough to make the traffic impact on your property qualitatively different.

With public land or interests affected, in addition to this abutter neighbor private property interest, there can also be other citizen interests, based on use, depending on what interests are being protected by the statute triggering the administrative review.  The plaintiffs in Fitzgerald weren't complaining as abutters, but rather as users of the park – which the whole public can do, so then we go to this Sierra Club line of case law identify the limits imposed on citizen standing in those circumstances.  Actual, versus potential use is one of those requirements (compare Sierra Club v. SCRAP).  You also look at the specific interest that the statute is protecting.  For example, in the broadest standing case in Maine, Matter of International Paper Co., 363 A.2d 236 (Me.1976), the SJC found that everyone in multiple counties who breathed had standing – because the permit at issue protected air quality.  

The majority in Nergaard hinted at this distinction when it distinguished International Paper on the ground that it "involved a permit issued under a statute enacted to protect certain areas from environmental hazards, and the plaintiffs were located in the areas that the statute was designed to protect." 

When someone has to drive down a road that will have more traffic on it due to development, even if that person drives on it more often than the average person (however calculated), the interest he has isn't in protecting his unique (and therefore particularized) private property, or in protecting a citizen use recognized in a statute.  On the latter front, snail darters are protected under the Endangered Species Act so we can all enjoy their presence in a happy diverse environment.  So if you frolic in snail darter territory, even if you don't own land abutting it, your interest – in experiencing that diversity – is affected if the darters are snuffed.  Interestingly, there's a vicinity test in that context too (see Lujan v. National Wildife Federation), but tested by the specific statutory interests protected and claimed.

So, for example, if the plaintiffs in Nergaard had complained not because they drive by the launching site, but because, for example, the tranquility of the site would be affected by the changes, tranquility was a protected interest under the ordinance and the plaintiffs actually used the site to absorb all that tranquility, then they might have had standing to complain.  

I've dealt with standing multiple times, on both sides of the fence, arguing for and against, and this is one of those areas that is so fact specific and fraught with these different rules that how you present your interest can really make a difference.  In a run of the mill 80B, if you are an abutter, as a practical matter, you don't have to prove anything to show standing.  The more removed your property is from the site of the area getting permitted, however, the greater an interest different from the general public's you must prove, so if that's an issue, you should get going ladeling that evidence into the administrative record as much and as soon as you can.  If the land or interest being affected is a public one, then you might also have some more options to work with in identiying your interest, but you need to use the Sierra Club progeny as a blueprint, crossing all your t's and dotting those i's on immediacy etc.

In sum, while Justice Alexander says that this decision is the death of "drive by standing," that might not be the case, at least if the plaintiff is driving in a snail darter habitat, and the interest protected by the permitting statute includes the ability to experience the presence of the darter as you go by.