We noted in our third post in this series that three of the most recent four public trust challenges arising on the Chicago lakefront have been brought in federal court. One would expect this immediately to raise the question whether federal standing rules apply in such an action—as opposed to the Illinois rule that any taxpayer can sue to enforce the public trust. In this fifth and final post in this series reflecting on our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), we take up federal standing—and conclude with a final observation about Illinois.
1. Article III Standing on the Lakefront After Protect Our Parks
The district court’s published decisions in the first two (of the three) federal cases, involving the proposals for lakeward expansion by Loyola University and for the Lucas Museum, did not consider whether the plaintiffs had standing under Article III. This is odd. Even if the government defendants did not raise the issue, a plaintiff’s’ standing is a jurisdictional requirement, so federal courts have an obligation to raise the matter on their own initiative if it may be in doubt.
The absence of any discussion of standing was particularly glaring in Lake Michigan Federation v. U.S. Army Corps of Engineers, 742 F. Supp. 441 (N.D. Ill. 1990), where the court enjoined Loyola’s proposed campus expansion as a violation of the public trust doctrine. One would have expected some discussion of the question whether the members of the civic association, then known as the Lake Michigan Federation, faced (1) an imminent threat of concrete injury that was (2) fairly traceable to the proposed expansion into the lake and (3) likely to be redressed by an injunction. To be sure, as we discuss in Lakefront, the court’s decision in that case was glaring in other respects as well.
Federal standing principles took center stage only with the decision in 2020 by the Seventh Circuit ordering dismissal of a federal lawsuit that challenged the construction of the Obama Presidential Center in Chicago’s Jackson Park, along the lakefront on the South Side. Writing for the court in Protect Our Parks v. Chicago Park District, 971 F.3d 722 (7th Cir. 2020), Judge Amy Coney Barrett raised the standing issue even though the defendants-appellees—the Chicago Park District and the City of Chicago—argued to the appellate court that the plaintiffs had standing. As Judge Barrett observed, the reason for the defendants’ position, which was a reversal of their argument in the district court, was “easy to see—having secured a judgment on the merits, they’d prefer an affirmance to a dismissal.” Id. at 733.
Proceeding without help from the parties, Barrett easily demolished the case for the plaintiffs’ standing to raise a public trust doctrine challenge. Illinois was free, she acknowledged, to allow any taxpayer to sue to enforce the public trust. But, for a suit in federal court, Article III standing requires injury in fact. Protect Our Parks and the individual plaintiffs could point to no concrete, particularized injury. They were, in effect, “concerned bystanders,” asserting a generalized grievance—“that the government has failed to follow the law.” Id. at 731, 732 (internal quotation marks omitted).
Nor could the plaintiffs ground their standing in the alleged injury to Jackson Park in the sense of the departure from Frederick Law Olmsted’s original plan. Article III precedents require a showing of “‘injury to the plaintiff,’” not “‘injury to the environment.’” Id. at 732 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000)).
How devastating to citizen enforcement of public trust claims is the addition of Article III standing principles? Probably not much. In a footnote, Barrett observed that most environmental plaintiffs establish their standing by alleging (and proving) “‘that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.’” Id. at 731 n.1 (quoting Friends of the Earth, 528 U.S. at 183) (internal quotation marks omitted). But Protect Our Parks and the individual plaintiffs had failed to follow this route.
2. Violation of the Public Trust as a Federal Constitutional Claim
Judge Barrett was forced to confront another twist in considering the plaintiffs’ right to proceed in federal court. The theory used by the plaintiffs to establish federal court jurisdiction in Protect Our Parks was creative—but almost certainly wrong.
The theory went like this: Because Illinois itself allows any taxpayer to bring a public trust claim, every Illinois taxpayer has a “property” interest in public trust resources. Therefore, any Illinois taxpayer can bring an action in federal court alleging that a violation of the trust is either a “taking” of his or her property in violation of the Takings Clause, or a deprivation of property without adequate procedures in violation of the Due Process Clause. In other words, via the magic word “property,” a state-law standing rule was transmogrified into a federal constitutional right.
Based on a quirk of Seventh Circuit precedent, Judge Barrett did not reject this supposed federal constitutional claim on standing grounds. The problematic precedent was Seventh Circuit case law cautioning against dismissing prisoner suits brought under 42 U.S.C. § 1983 for lack of standing because the claimant could not show a sufficient interest in property. Whether the prisoner had property was thought to be determined better as a matter of the merits than as one of standing. Avoiding a confrontation over this precedent, Judge Barrett upheld standing on the part of the Protect Our Parks plaintiffs to raise the supposed constitutional claim, but ruled that the claim could be “easily dispatched” on the merits. 971 F.3d at 737.
Although this provided a way to maneuver through the minefield of circuit precedent, it is difficult to justify in terms of Article III standing principles. The Supreme Court has cautioned that jurisdictional questions should be resolved before the merits, and Article III standing is jurisdictional. Moreover, the Court has made clear that “a plaintiff must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
A process of treating the public trust doctrine itself (a matter of state law) under one set of Article III standing principles and the “federally constitutionalized” version of the same doctrine under another set of Article III standing principles, and of reaching different conclusions on these (no standing as to the one, as discussed above, but standing as to the other), is in great tension with this understanding.
A better way to finesse the Seventh Circuit’s concern about section 1983 cases would have been to assume for purposes of decision that the plaintiffs had stated a valid constitutional claim and on this basis to ask whether they had standing to bring such a claim under Article III. This would have resulted in the same standing analysis being applied to all claims, as required by the Supreme Court’s standing jurisprudence.
Turning instead to the merits of the constitutional theory, Judge Barrett disposed of it as unsound. A short answer to the plaintiffs’ theory (which she did not give) is that treating a liberal state standing rule as a “property right” for federal constitutional purposes would convert every state law with such a standing rule into a federal constitutional right, subverting the settled understanding that such law is for each state to determine.
In one respect, though, Judge Barrett drew a questionable inference from the history of the lakefront: she interpreted the Illinois Supreme Court’s repudiation of the public dedication doctrine in 1970 to mean that abutting landowners have no property right in dedicated spaces. But as we have seen (in our previous, or fourth, post), the public dedication doctrine incorporated a special standing rule enforced in equity. Its recognition before 1970 did not create a property right in abutting owners, and its repudiation in 1970 did not repudiate any such property right either. So although Judge Barrett did commendable work in separating standing questions from merits questions, in the end she, too, succumbed to some confusion between standing principles and the merits.
3. Federal and State Standing Compared
Although Judge Barrett rejected Article III standing in Protect Our Parks on the ground that the plaintiffs were seeking to advance a generalized grievance not cognizable in federal court, the path for future public trust plaintiffs who want to proceed in federal court is relatively straightforward. With respect to filling the lake, all that is needed is at least one plaintiff who fishes or swims in the area of the proposed fill. With respect to parks, all that it is needed is at least one plaintiff who hikes or picnics in the park (indeed, allegations of this sort have been made to support standing in a new federal lawsuit, filed April 14, 2021, by Protect Our Parks and various individual plaintiffs challenging the Obama Presidential Center, again on the public trust doctrine and now also on federal administrative-law grounds).
As a standing rule, Article III throws up a barrier that increases the costs to plaintiffs of proceeding in federal court. But for practical purposes, it is little different from universal citizen standing, at least with respect to environmental preservation issues.
Our review of various standing rules for enforcing public rights has suggested that parens patriae standing is prone to underenforcement, and universal citizen standing to overenforcement. What is needed is an intermediate rule that allows enforcement by citizens who have an especially high stake in preserving the public right. Illinois once had two such rules: (1) the rule announced (but never applied in favor of standing in this specific context) that allowed citizens to sue for violations of the public trust if they could show special injury, and (2) the rule that allowed directly abutting landowners to sue for violations of a public dedication. Both rules, alas, have been repudiated by the Illinois courts.
Yet history suggests, in this context at least, that, in order to go forward, serious consideration should be given to going back.
Posted by Joseph D. Kearney and Thomas W. Merrill
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