FIRST-IMPRESSION RULING FROM CAV
IN REPRESENTATIONAL-STANDING APPEAL[Posted July 20, 2010] Forty-one years ago today, Neil Armstrong took a step into territory where no one had previously gone. Today, the Court of Appeals of Virginia assures us, it follows suit by issuing an opinion on an issue of first impression in an administrative-law case, Chesapeake Bay Foundation v. State Water Control Board.
The appeal focuses on Stumpy Lake, a reservoir down here in Tidewater that’s so named because of the cypress trees in and around it. (If you’ve seen hydrophilic cypress trees before, you know they sprout “knees” above the water line that look like the stumps of former trees. Hence the name.) The Water Control Board long ago issued a permit to a company to develop land adjacent to the lake. Two nonprofit organizations had opposed the project, and they appealed the issuance of the permit.
This case has some appellate frequent-flier miles. In 2005, the CAV issued a previous opinion holding that representational standing was an acceptable means to empower the organizations to appeal on behalf of their members. The court remanded the case to let the trial court decide whether the organizations met the requirements for representational standing.
On remand, the trial court found that one organization met the requirements, but the other one didn’t. The reason for the differing result is that at least one of the individual members of the “successful” organization had appeared before the board in his own name to oppose the permit; but no individual from the other organization did so. The trial court ruled (granting a motion to dismiss) that representational standing required at least one such individual effort.
Today, the CAV once again reverses and send the case back for a hearing on the merits. A unanimous panel (Judge Frank writes the opinion) finds that there is no requirement of individual participation in order to permit an organization to take advantage of representational standing. Doing that would write a new requirement into well-established rules for Article III standing, and the court doesn’t feel at liberty to do that.
Stumpy Lake occupies a soft spot in my heart, because I frequently played golf at the course adjacent to the lake in the 1980’s and 1990’s. On one particularly cold day, when I hit a shot that seemed destined for an arm of the lake on the 13th hole, I was surprised to find that my ball, instead of splashing into the water, skittered across a thin veneer of ice that I hadn’t realized was there, to land safely on the fairway beyond. I promptly dubbed such a feat a “Tonya Harding Ball,” a name that has stuck in my memory (if not in my actual subsequent play of the game).