Patagonia vs. Trump

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.