Patagonia vs. Trump

69 Pages Posted: 28 Aug 2018 Last revised: 14 Jan 2019

Date Written: August 17, 2018

Abstract

This article explores the federal-court lawsuit that the Patagonia clothing company has brought against President Donald Trump, which challenges Trump’s reduction of the once-massive Bears Ears National Monument in Utah. It is odd for a company like Patagonia to bring a suit like this, and this article examines whether Patagonia has standing to do so. The article argues that Patagonia does not have standing to sue either for itself or, in a representative capacity, for its employees and the athletes that it sponsors. In making that argument, the article advances two broader ones. It argues, first, that the U.S. Supreme Court should clarify Havens Realty Corp. v. Coleman, the main decision on which Patagonia will rely in asserting standing to sue for itself. Contrary to the lower federal courts’ understanding, Havens does not apply to suits, like Patagonia’s, that seek to vindicate “public rights.” This argument draws upon Justice Thomas’s significant but under-examined concurrence in Spokeo v. Robins. The article also argues that the Court should revisit the main decision on which Patagonia will rely in asserting associational standing, Hunt v. Washington State Apple Advertising Comm’n. The test that the Court articulated for associational standing in Hunt is anomalous, unprecedented, and fails to ensure that a plaintiff-organization will adequately represents its constituents. The article argues that the Court should repudiate the Hunt test and instead require the plaintiff-organization in every case to show that it can adequately represent the constituents on whom its standing rests. A plaintiff-organization should, however, be able to meet this requirement presumptively by proving that it has the indicia of a traditional voluntary membership association that were identified in Hunt.

Keywords: antiquities act, national monuments, standing, constitutional law, separation of powers

JEL Classification: K11, K20, K23, K32, K41

Suggested Citation

Seamon, Richard Henry, Patagonia vs. Trump (August 17, 2018). Tennessee Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3233875 or http://dx.doi.org/10.2139/ssrn.3233875

Richard Henry Seamon (Contact Author)

University of Idaho - College of Law ( email )

P.O. Box 442321
Moscow, ID 83844
United States
208-885-7061 (Phone)

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