Bird watching favored in 7th Circuit reversal; American Bottoms can sue U.S. Army Corps of Engineers

Kelly Holleran Aug. 9, 2011, 1:54pm

A federal appeals court has ruled that an environmental group is allowed to file suit against the U.S. Army Corps of Engineers over the proposed construction of a landfill in Madison that the organization says will destroy more than 18 acres of wetland, potentially impacting its members' ability to view wildlife.

The Seventh Circuit Court of Appeals overturned an earlier ruling by U.S. District Court for the Southern District of Illinois, which had dismissed American Bottom Conservancy's complaint against the U.S. Army Corps of Engineers and Waste Management.

U.S. District Judge Patrick Murphy found that the environmental organization had no standing to sue in district court.

American Bottom Conservancy filed the suit in response to Waste Management's proposal to expand an existing landfill that is quickly filling with waste from St. Louis. Waste Management owns a 220-acre tract north of its current disposal facility and wants to expand on 180 acres of that land.

However, Waste Management's tract of land contains five wetland areas that are home to birds, bats, butterflies and other creatures. Nature watchers gravitate to the wetlands because of their solitary location away from picnic tables and "other clutter," recent court documents state. They do not want to see the destruction of the wetlands.

Although Waste Management has not yet obtained permission to construct a new landfill at the proposed site – a potentially lengthy process – it has received permission from the U.S. Army Corps of Engineers to remove soil from the wetlands. That soil would be transported to Waste Management's existing facility to cover layers of waste. In turn, Waste Management promised to create double the amount of wetlands on a nearby tract it owns.

American Bottom Conservancy filed suit in August 2009 in an attempt to quash the permit the U.S. Army Corps of Engineers authorized, which allows Waste Management to destroy the wetlands by removing soil from them.

U.S. District Judge Patrick Murphy dismissed the complaint, finding that American Bottom Conservancy had not been harmed by the proposed landfill and did not have standing.

The Seventh Circuit reversed the June ruling, saying that American Bottom Conservancy members will likely suffer if the wetlands are destroyed because their bird-watching activities will be diminished.

"Denying a person who derives pleasure from watching wildlife of the opportunity to watch it is a sufficient injury to confer standing," the ruling filed Aug. 8 says.

If the wetlands are destroyed, much of the wildlife living there will either migrate or die off before the new wetlands can develop to a point to provide an equivalent environment, American Bottom Conservancy pointed out.

"The district judge thought that to establish standing the affiants had to attest that they would be so upset by the diminution of their bird- and wildlife-watching activities that they would no longer visit the state park," U.S. District Judge Richard Posner wrote. "That is wrong; it is enough to confer standing that their pleasure is diminished if not to the point that they abandon the site."

Because the Court of Appeals found standing, the case will return to U.S. District Court.

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