Case: 23-10362 Document: 543-1 Page: 25 Date Filed: 08/16/2023
sue” once the case was before the Supreme Court. Id. at 491 (quoting Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994, 999 (E.D. Cal. 2005)).
The plaintiffs attempted to continue their challenge to the regulation, asserting that their other members were statistically likely to travel to one of the many parks that would likely be affected by the regulation. To be sure, the majority expressed skepticism with that theory. See id. at 497 (criticizing the dissent’s “hitherto unheard-of test for organizational standing: whether … there is a statistical probability that some of [the plaintiffs’] members are threatened with concrete injury”). But its bigger concern was that plaintiffs failed to prove their claims: they lacked evidence of the number of association members who intended to visit the parks, and when:
A major problem with the dissent’s approach is that it accepts the organizations’ self-descriptions of their membership, on the simple ground that “no one denies” them. But it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.
Id. at 499. A primary reason for the lack of evidence was the majority’s decision to not consider several affidavits offered after the district court entered judgment—affidavits that would have made the required showing. See id. at 495 n.* (declining to consider the affidavits); cf. id. at 508–09 (Breyer, J., dissenting) (arguing that the Court should consider them). Without those affidavits, the majority understood itself as not having evidence of any other member’s injury:
In part because of the difficulty of verifying the facts upon which such probabilistic standing depends, the Court has required plaintiffs claiming an organizational standing to identify members who have suffered the requisite harm—surely not a difficult task here, when so many thousands are alleged to have been harmed.
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