Wednesday, August 27, 2014
On August 26, the D.C. Circuit (Garland, Srinivasan, Sentelle) issued a decision in Sierra Club v. Jewell, No. 12-5383. The plaintiffs in the case are environmental and historical preservation organizations seeking to protect the area of Blair Mountain, West Virginia—site of a landmark armed labor conflict in 1921—from the effects of surface mining. The Blair Mountain Battlefield was listed on the National Register of Historic Places in 2009, but then quickly delisted in response to apparent objections from landowners. (For a site to be listed, a majority of property owners in the area must not object.) The plaintiffs sued to challenge the delisting, but the district court dismissed for lack of standing. The D.C. Circuit reversed, holding (a) that the plaintiffs had demonstrated enjoyment of the Battlefield for its aesthetic and historical value; (b) that the plaintiffs had shown a substantial probability the Battlefield will be subject to surface mining that would impair the plaintiffs’ enjoyment; and (c) that listing on the Register arguably provides the Battlefield with greater protection from mining impacts than if the Battlefield were not listed. On the last point, the court reasoned that, although the Department of the Interior argued the Battlefield, even if it were listed, would not receive the protections in West Virginia law cited by the plaintiffs, for purposes of establishing standing the plaintiffs needed only to make a “non-frivolous” argument that listing would protect the Battlefield.